Labor Relations

ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW

JULY 10 [ MANLIGOY ] the announcement of their adoption in the newspaper of
general circulation.
You have to check your Implementing Rules and Regulations
of the Labor Code whether it has all the amendments. Do you find anything wrong in said provision?

Amendment to Book V Labor Relations You should have enough knowledge of political and
administrative law to know that that is essentially defective
According to Chan 2019 edition, the latest one is a provision. When you say the Department of Labor shall
Department Order 40-I-15 Series of 2015. There is a new promulgate the necessary rules and regulation, kinsa man
Rule, Rule 7 of this particular Department Order. That Rule sa DOLE ang mu-implement? Ang janitor bah, maka-
7 is entitled Request for Sole and Exclusive Bargaining implement bah? Kinsa man? Who? That is why Patricia Sto.
Agent (SEBA) Certification. That is a new proceeding added Tomas signs this. You do not say DOLE. Is it enough to say
by the Department of Labor. Make sure you have that Department Order No. 40-03, Dole? Is that enough? That’s
particular Rule. This was introduced by Department Order not enough. Somebody or some warm living body has to
40-I-15 further amending DO 40 series of 2003. sign. Kanang balaud, dili mana Congress passing law. Kinsa
man ang mupirma? Ang Congress? Kinsa man ang
Definitions Congress? Janitor? Naay mupirma. Ang speaker, Senate
President attested by the Secretary of the Congress and
The definition found in the Implementing rules: then it is brought to the President. That is the time when
the President is obliged by law to sign. In other instances,
Certification Election – made equivalent to consent the President does not sign. It’s the Executive Secretary
election. It says certification election or consent election who signs by authority of the President.
refers to the process of determining through secret ballot,
the sole and exclusive representative of the employees’ This definition is inaccurate. Look at the old Labor Code
appropriate bargaining unit for purposes of collective before it was amended by Jinggoy Estrada. It did not
bargaining or negotiation. A certification Election is ordered Department of Labor. It says Secretary of Labor promulgate
by the Department while a consent election is voluntarily the implementing Rules and Regulations. Somebody has to
agreed upon by the parties with or without the intervention take responsibility.
by the Department. (Section 1 of Rule 1.H)
It’s in the same vein that they just disregard the import of
As I have said, again and again, this definition is an insult the meaning of the “certification”. That’s the first mistake of
to common sense. Certified, once you see certified, there is this definition.
a 3rd party that is involved - the one making the formal
assertion which he seeks to assert over and against a 2nd Certification refers to the process of determining through
person. There is a 3rd party. The 3rd party certifies that that secret ballot the sole and exclusive representative of the
assertion is according to accepted standards. That’s why it’s employees in an appropriate bargaining unit for purposes of
called certified. collective bargaining and negotiation.

There are 3 parties: The 2nd defect here is the definition itself. Certification of
Election does not seek out through secret ballot the sole and
1. The one who asserts exclusive representative of the employees. 1st, the
2. The person over whom you assert a certain truth certification election determines through secret ballot
3. The one who certifies that the assertion is according whether the bargaining unit wants representation and if so,
to accepted standards who is the exclusive representative of the employees.

A certification Election is ordered by the Department while Now, suppose the employees say, they proposed to Jinggoy,
a consent election is voluntarily agreed upon by the parties usaba na. Magpili lang mi ug usa namo. Nganong kamo man
with or without the intervention by the Department. How musulti namo? Nganong man mag-union union pa man?
can it be certified when nobody certifies it. The Department Magpili lang mi. Ngano man dili namo na mahimo?
does not intervene the election at all.
Why is that the provision of law? Why is it that the union is
Unsaon mana pag certify? It’s like a false oath. This is an chosen? It is not discussed in Chan’s book. He did not
insult to intelligence. I don’t know what researcher wrote discuss it.
these Implementing Rules, Patricia Sto. Tomas.
If it’s a natural person and he dies, you’ll have to file another
Labor Code, Article 5 Rules and Regulations petition for certification of election and consequently,
another campaign period. That’s not possible because ang
Take a look at the Labor Code, Article 5 Rules and tao, lumalabay, mamatay but a juridical person does not die
Regulations. that’s why it’s a union with a registration. That’s the basic
concept.
The Department of Labor and Employment (DOLE), other
government agencies charged with the administration and JULY 10 [ ESTREMOS ]
enforcement of this Code or any of its parts shall promulgate
the necessary implementing rules and regulations. Such
rules and regulations shall become effective 15 days after
1 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
Now, the definition here says, “Secret ballot – the sole and
exclusive representative of the employees in an appropriate Whose determination is that? It is not by secret ballot. It is
bargaining unit.” the State who determines after receiving feedback from the
employer, from the unions that are applying, and from the
The secret ballot determines two things: workers themselves. That is the first part of Petition for
1. Whether or not the bargaining unit chooses Certification Election – the determination of the bargaining
representation; unit. That is the first part.
 How is that shown? There is a choice “No
Union.” So that the bargaining unit elects Is that determined by secret ballot? No! It is largely
“No Union.” determined by the State after the State receives the
2. If it is representation which is chosen, then who will feedback. It is the Med-Arbiter, front line officer of the
be the sole and exclusive bargaining agent? That is Bureau of Labor Relations when you have filed your petition
the next choice. that determines the bargaining unit. After determination, it
is now called Appropriate Bargaining Unit.
What is this Appropriate Bargaining Unit?
Take note, the law says “Appropriate” Bargaining Unit. The
law does not say “Most Appropriate” Bargaining Unit. So
there is a leeway of discretion on the part of the Med-
Top Arbiter. The Med Arbiter has choices.
Management

Middle Kung gamay ra ni na employee unit. Kining monthly paid, 2

Management kabuok. Kaning paid in commission, 3 lang ka buok. Ang
daily paid, 30 na ni sila. Mu ingon ang Med Arbiter, kini
Front Line
Management
nalang tanan ang buhatong bargaining unit (pointing to
daily paid).
Rank and File Management
Monthly | Daily | Paid on
Commission What can we do, dili man jud nato mabayron, lisod na sila
duha ra ka buok (pointing to monthly paid and paid on
CORPORATION XYZ
commission). Kailangan pa sila mu affiliate ug federation?!
Let us say this is the whole complement of employees of a Dili man pud na sila maka organize ug ilahang chapter! Ang
particular employer – Corporation XYZ. officers, dili ma comply. Presidente, Vice Presidente, kinsa
 Top Management pay ma Secretary o Treasurer. Wa na. I-apil nalang. Kamo
o Includes the Board of Directors and Board diri, i-apil nalang sad mo. It is the judgment call of the
of Trustees. State, principally by the Med-Arbiter.
o This one cannot form a union.
 Middle Management Once the bargaining unit is determined, then you can have
o Likewise cannot form a union. an election within those, that are included in that bargaining
 Front Line Management unit.
o Front Line Supervisors can form a union,
but only among themselves. What would the election be?
 Rank and File; divided to: 1. Whether or not they want representation; and
o Monthly paid 2. Who is their representative if they want
o Daily paid representation?
o Paid on commission
DETERMINATION OF THE BARGAINING UNIT
Now, can you lump all of these together? They will be Let us go to the determination of the bargaining unit.
represented by one union? If you do that, there might be no
congruence of interests between these groups. A leading case here is Belyca Corporation vs. Pura Ferrer
Calleja. The Belyca case occurred in Malaybalay, Bukidnon.
For monthy paid, they are paid the same amount of pay If you have been to Malaybalay, Bukidnon coming from
every month regardless of the number of working days in Cagayan de Oro, you know that it is up in the hill.
that month. Ang sweldo nila sa Marso, pareho ra sa 1. Going to the right was a FARM of the Belyca
February. Kasagaran baya sa February, 28 days lang baya Corporation.
na. But they are paid the same amount, regardless of the 2. Now, you move further uptown, and they had a
number of working days. Kini sa daily paid, the basic rule is, SUPERMARKET. The second floor of the
“No work, No pay.” Supermarket is the main office of Belyca
Corporation.
Now, kung mu adto sila (pointing to daily paid) sa 3. Then you turn to the left, there was the Malaybalay
management, “pila man increase imong pangayoon?” Mu Cathedral. And then, somewhere further is another
ingon sila (daily paid), “monthly.” Ingon ang monthly, “Dili!” property of Belyca that have two movie houses and
So naglalis nalang silang duha. There is no congruence of 2 or 3 restaurants.
interests that makes negotiation a practical, viable stance.
That is why, even among them, there is a segregation. That So, you have these three work places.
is when the notion of bargaining unit comes in. You
determine what group of employees are being represented.
2 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
Now, Associated Labor Union went into the farm and What is the intervening change that is substantial? The loss
organized the workers here. And they filed their Petition for of manpower. So they are saying, let us reduce the two
Certification Election. And it was opposed by the employer. bargaining units into just one. Ngano magpadayon pa man
The employer said that “this is the proposed bargaining unit ning sawmill, na wala namay lands na giputol.
by the petition. In your petition, it initially described the
bargaining unit.” That is not binding to the Med-Arbiter. The Management of course opposed it. Ngano mu oppose man
Med-Arbiter will determine whether it is appropriate. jud ang management?! Gipadala naman nila ang kaso sa
MedArbiter, saka sa BLR, saka nasad sa Court of Appeals,
The employer filed an opposition and said, “this is not the saka nasad sa Supreme Court. So 10 ka tuig, way increase.
appropriate bargaining unit (pointing only to the farm). The Bisan gud sayop sila. That’s the case. Naa kay savings na
appropriate bargaining unit is these three combined.” The 10 years. Kay wala may collective bargaining. Ang karaang
basic reason for management is this if this (the farm) is the collective bargaining ang mu prevail.
only bargaining unit that is formed and organized, and this
(the supermarket) will be another bargaining, and this (the Then the Supreme Court says sayop ang management.
third property) will be another bargaining unit – it will lose There is an intervening compelling change. So only one
time going around bargaining. So we might as well make collective bargaining unit.
the entire so-called employer unit as the bargaining unit.
That was the proposal of management. And so on, you will see some other cases like San Miguel
Corporation, like the latest San Miguel Corporation is there
The issue is, what is the criterion for the determination of a in your notes, Chicken Operations.
bargaining unit?
History! History is appropriateness, as a general rule, unless
And the Supreme Court came up with a couple of there is a major intervening factual change.
benchmarks or criteria for the determination of what is an
appropriate bargaining unit. In Belyca, the Supreme Court JULY 10 [ PAULMA ]
says:
CRITERIA FOR DETERMINATION OF AN
1. History APPROPRIATE BARGAINING UNIT

What do you mean by history? What is an appropriate 1. History

bargaining unit in the past is the appropriate bargaining unit
in the present. So if there has been a ruling by the Med- We have seen the first criterion to the determination of an
Arbiter before, that this is an appropriate bargaining unit, it appropriate bargaining unit - history. The San Miguel Beer
will continue to be an appropriate bargaining unit. case, bargaining unit. There were 4 or 5 bargaining units in
Luzon for the salespersons. Before, the Beer Division was
What will change that? Only a substantial and compelling the biggest division of San Miguel. Now, it's a separate
change in the history that will render what was in the past corporation after San Miguel spun off their different
as appropriate to no longer appropriate. operations to subsidiary corporations. (Father mentions that
Give an example: The example given is the case of Agacan before, salesmen were Caucasians and for every place, for
Timber Incorporated. example, Baguio, with several trucks, such consisted of 1
bargaining unit.) There were as many bargaining units as
Agacan Timber Inc. was an organized establishment with there were viable salesmen driving and operating these
two bargaining units. trucks. What happened? Why did the trucks disappear?
1. the Forestry Unit; and They disappeared because of Lucio Tan. Lucio Tan got
2. the Sawmill Unit. Marcos to borrow money from the World Bank on less than
1% interest. Can you imagine? The quota for the Philippines
Ang Sawmill, mga trabahante sa naga tagbas sa logs na for food project went to Lucio Tan for less than 1% loan!
ibutang nimo didto. Hiwa-hiwaon ang troso. That is one unit. That's how Lucio Tan was able to put up his beer business.

The other unit is the Forestry Logging Unit. Ang ilang Lucio Tan put up this Beer na Beer. He applied what is now
concession, 1,000 hectares ang teritoryo, they go over the termed by business professors as "guerrilla marketing".
place. Unsa man nang trabaho anang sa Forestry Logging? Wala na siyay truck-truck! He will go to a place, let's say a
Nay mga driver, naa mga sawer, nay logscaller, tig measure district in the city. He will look for a big sari-sari store ug
sa logs, heavy equipment operator (naga bulldoze sa bukid ingnon niya, "Oh, pahulamon tika ug kwarta, pagbuhat ug
arong buhatang dalan, maka agi ang truck, magkarga ug bodega diha. Ako ihatod ang beer nimo unya ikaw na mag
logs). These are the people, the positions that are in the distribute diha para naa kay commission." Maong
Forestry. nawagtang ang sales force sa San Miguel. They had to adapt
to the Lucio Tan guerilla marketing. Otherwise, they will
Now what happened? The case erupted when the two lose. That is a compelling substantial change that
unions, representing the Forestry Logging Unit and the intervened in the history of the bargaining unit. And so, that
Sawmill Unit, petitioned for the unification of the bargaining justifies the issue of lesser bargaining units.
units into one. Ngano man? Nahurot naman kaputol ang
logs. Wa na may logging. If you are an organized establishment, that part is generally
fixed. There is a window - 60 days before the CBA lapses -
you can file a petition for certification election. In that
3 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
petition, the appropriateness of the bargaining unit is hardly On what grounds?
questioned anymore because it has the backing of history. Historical compelling change.
But, if there has been no CBA - it is an unorganized
establishment - there is no exclusive bargaining agent, the 2. Globe Doctrine
first one who files a petition for certification elections, he
has to establish that the bargaining unit that he describes is This globe doctrine is quoted by our Supreme Court. It is
appropriate. A petition for certification election normally not a US Supreme Court decision. It is just a decision of the
contains a description of the bargaining unit that is National Labor Relations Board which our National Labor
proposed. That description is tentative in nature. That is the Relations Commission copied. What is the gist of that
beginning of discussion for all the parties concerned. That decision? A technical company, Globe. It had a general
does not normally end up being the bargaining unit. After bargaining unit composed of several skilled employees or
discussions, etc, the med-arbiter will come up with his first technicians. They had machinists, electricians, ironworks
decision in the petition for certification election. people, wiring specialists, etc. Because of the nature of the
business of Globe, the machinists grew in number because
The first decision is the order to hold a certification election. they were related to the railway. So much so that 4 out of
In that order, there is again a description of the appropriate 10 employees of that bargaining unit had now become
bargaining unit. It might be the same as the one described machinists. And the machinists are saying, "our interest is
in the petition or it could be different. But the one that rules not represented in its fullest by this system; by the union
is the description in the order to hold the certification representing others and not just us. So we want to split."
election. If the certification election comes up with a winner Now, from the consideration of the NLRB, the NLRB says,
- Union A won the certification election - then, the med- "there is no appreciable difference if the machinists will split
arbiter will issue another order. What is that order? The into a separate bargaining unit or they will just continue to
order certifying the union that won because it garnered be included in the general bargaining unit of technical
majority of the valid votes cast. "This union is the exclusive workers for the one who will judge as to whether or not this
bargaining agent of this bargaining unit," and then you is appropriate bargaining unit."
describe the bargaining unit again. That is the description
that now is controlling. JULY 10 [ PEROY ]

Why is it important that you know where to find the So, what was the decision of the NLRB? The NLRB said that
description of the binding bargaining unit? Why? Because there should be an election as to the bargaining unit – not
you cannot change that! The union, you can't change that. as to the representation of the bargaining unit – but as to
Dili naka gusto sa federation, chapter namo, local mo, unya the confederation. Will the machinist be allowed to form
ilisdan na ninyo. Mangita mo ug laing federation, mahimo their own bargaining unit? Or should the machinist remain
na! Because that is the choice of the employees in the in the general bargaining unit? The was the issue. Kinsa may
bargaining unit. But the configuration of the bargaining unit, naka-daog? The machinist won.
it cannot be lessened, it cannot be enlarged. If you enlarge
it, you cover more workers than those who actually So now, many commentaries of our Labor Code say that the
exercised the right to self-organization; you cover more general rule in the Globe Doctrine is – the employee’s will
employees than who actually voted in the election. What within the bargaining unit is determinative of the
happens? Their right to self-organization was violated. If appropriateness of the bargaining unit. If the workers
you decrease the appropriate bargaining unit in size, you there vote and say “this is the bargaining unit”, then that
also leave out those employees that already exercised their should be the decision of the Med-Arbiter. That is not a
right to self-organization. You violated their rights. That is correct distillation of the doctrine of this Globe case. The
the difference between the bargaining unit and the union. Globe case is limited to a general, technical bargaining unit
and there is already a growing class, separate and distinct.
Sa union, mahimo ka magdugang. That's the prerogative of Once that happens, and they feel unrepresented, then
the union. It can increase its members, it can lessen its whether or not a dominant class of skilled workers from
members. The law only says that if you are a member of the the general bargaining unit of many different kinds of
union and you are not in the bargaining unit, then the law skilled workers, will decide whether there will be one or
will disregard you. You are not covered in the CBA. Are you two bargaining units. Very important, because
still a member of the union? As far as the union is subsequently, there are now decisions by the SC in the US.
concerned, you can be a member. Because a union, the
labor organization, is not only for bargaining. It can be for Health workers in a hospital – all the health workers are just
other purposes. It is not exclusively for bargaining. It can put in one general bargaining unit. When the Registered
also be an exercise of the freedom of association. Nurses said: “we want a separate bargaining unit of our
own!”, the SC said, “That is enough. Once they say that they
So, important to know: want, you should grant it to them, because they are a
What is in the order? distinct and skilled group with board certification.” They are
The description of the bargaining unit - that is the a distinct group, and most of the time, they have a
controlling description as to the configuration of the substantial number. That’s why the hospital groups in the
bargaining unit. US have created this category. Para di sila mudaghan
kaayo, naa nay “Practical Nurse”, lain pud na ug board
Who can change it? certification – duha ra na ka tuig. That is to keep the number
The med-arbiter can change it. of Registered Nurses down because of this decision of the
SC.
4 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW

So, I am just applying the Globe doctrine to that incident. In the Belyca case, the SC said – if these workers in the
You must have a general bargaining unit – kanang skilled. agricultural arm of Belyca, paapilon nimo diri sa mga
Kanang nag-lukdo or kanang naga-masa, ayaw na sila i-apil supermarket employees, or diri sa moviehouse or
kay di na mao ang basehanan. restaurant employees – i-kumpol nimo sila sa isa ka
bargaining unit, is there a possibility of community of
There is also an “ultra-skilled” group – that’s also separate. interest? NO.
Who will determine whether they will be separated or not?
Everybody. They will vote. Maybe the rest will be saying First of all, they are separate. Second, there is a rule that
“sunod-sunod ra ta sa mga nurses. How about our the agricultural employees, dili maka-adto sa office. Maligo
interests? If our interests are really separate & distinct, then pa gud na sila kay nanimaho gikan sa piggery. Pag-abot nila
we would deserve to be separated from the nurses.” didto, managan ang mga customer. Pero ang pay sa mga
supermarket/moviehouse/restaurant employees is collected
Mao na man na karon sa US – there are several kinds of from the main office. Third, most agricultural workers are
scheduling of work hours. You can go on a 12-hour straight seasonal. Those that are involved in the harrowing, ting-
basis kung nurse ka, or mu 8-hours ka. Kanang uban tanom lang na sila. They cannot be incorporated with those
hospital, pag makulangan ug nurse, manawag. After you others who are working all-year round. What was the
work 12 hours for 3 days, 36 hours na ka. Mag-unsa man decision of the SC? This is a very valid bargaining unit.
ka sa ika-upat na adlaw? Mag-gantsilyo nalang ka? But they
can choose because they have flexibility of work hours. That Now, distinguish bargaining unit from exclusive bargaining
is facilitated by separate bargaining – peculiar to registered agent.
nurses.
BARGAINING UNIT EXCLUSIVE
The shortcut for this, according to commentaries – the will BARGAINING AGENT
of the employees establishes the appropriateness of Not an organization. A separate organization. It
the bargaining unit. has a separate legal
personality.
3. STATUS OF THE EMPLOYEES The relation of the So if it is a separate labor
employee to the bargaining organization, you either
What do you mean by “status”? Are you already a regular unit is not through are a member or not a
employee or are you still on probation? That is with respect affiliation. It is whether member of that
to tenure. you are included in the organization.
bargaining unit or not.
Normally, probationary workers cannot take place in the You are not a member of
bargaining unit of regular workers. Why? Because their the bargaining unit.
basic interests are not the same. Timan-i na kay bisag ang
DOLE, masayop ana. Naa
If the probationary worker is offered permanency, mu-sugot na sa implementing rules
na siya ana bisag walay increase kay unya na niya sa SEBA – they talked
pangayuon ang increase sa iyang sweldo kung permanent about membership in the
na siya. So, if the employer wants to create this unity in the bargaining unit. Unsay
bargaining unit, ingnan lang ninyo na tagaan mo ug membership? Ni-apply ba
permanent status, papasaron mo sa evaluation, ayaw lang ka? Nibayad kag union
mo pangayo ug increase. Sila na mu-hasol sa ilang mga dues anang bargaining
negotiator kay kanang mga negotiator, mu-ingon man na unit? Wala man. So you are
sila ug “permanent na man mi”. Gusto man na sila ug dako either included or not.
na increase, so mao na ilang pangayuon. Kamo na
probationary, permanency inyong pangayuon. So there is Kung ikaw, machinist ka pero ni-apply ka ug pagka-
no basic identity or community of interests. Mao na ang supervisor, pag-apply nimo, gi-sukod ka, unya ni-ingon ang
‘status’. company ug “okay ka. Mahimo kang supervisor.” Karon,
gipadala ka sa training, wala pa ka naka-pasa unya nag
Kanang casual or workers who are just brought in during certification election, maka-boto ka o dili? Maka-boto
the peak season or mga project employees – they cannot gihapon ka because the presumption is for the exercise
be mixed with regular workers, because they have different of the right to self-organization. Nakapasa na ba ka sa
interests. Ang ilang damgo kay ma-regular sila, unya ang imong training? Wala pa kay padulong pa man ka sa pagka-
damgo sa mga regular kay mu-saka ilang sweldo. supervisor. So, unsa man ka? Twilight zoner ka? It’s either
you are rank-and-file or supervisor. Di man ka mahimo na
That is why “status” is another criterion for the “rank-and-file-sor”. Basic principle na. 
appropriateness of the bargaining unit.
JULY 11 [ PIZZARO ]
4. COMMUNITY OF INTERESTS
When you file a petition for certification election, it can happen that
According to the SC – this is the most important criterion. the employer will file a manifestation saying “not my employees” as
All those occupying the positions in the bargaining unit have
a community of interests.
5 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
in the 2017 case of Sumifru Philippine Corporation v. in higher altitude. But then you are charged with the medicine, the
Nagkahiusang Mamumuo. fertilizer, the insecticide, the herbicide, plus the labor – all of these
deducted from your receivables. Ang makuha na lang nimo is what
In relation to the aforementioned case, please know that the banana is net after all the deductions. Plus the development cost per hectatre
corporations are employing this technique: pa diay! That’s about 500,000 Pesos per hectare! Because for 10
months wa pa man kay harvest, unya sige pa gyud ka ug gasto sa
There are so many banana corporations. You have Del Monte. You labor. So, you see how much you have to learn in order to learn law?
have Lapanday. You have Sumifru. You have Fresh Banana Mahibal-an dapat na nimo aron makabalo ka kung kinsa man gyud
Agricultural Corporation. Now, in the advent of agrarian reform, the ang tuuhan sa mga workers, to prove control! Once there is control
huge estates of the bananas were subdivided. Now, the old workers then the opposition to the petition for certification is dismissed. Once
before became the beneficiaries. They became the owners of the that is dismissed, it is a final decision – it is appealable. So, what the
banana parcels (and under the agrarian reform, the beneficiary has 3 Sumifru did is from the med-arbiter they went to the Secretary of
hectares, the landowner retaining 5 hectares). So, the old banana Labor. The Secretary affirmed the med-arbiter. From the Secretary of
workers became growers now. So as to the banana operations, since Labor, they went on certiorari to the Court of Appeals. The Court of
it is to be large-scale, the fruit-care and the operation requires very Appeals affirmed the Secretary of Labor. They still went to the
scientific practice, procedures. Very scientific ha! So if you are a Supreme Court. Then the Supreme Court said, “This Court is not a
beneficiary of agrarian reform? You cannot develop! So you enter into trier of facts. The factual configuration of this case is already settled.
a growers’ agreement with the banana corporations. And they supply What is the job of this Court? The job of this Court is to find out
you with the “inputs.” And then, you have to sell the bananas to them. whether the CA committed grave abuse of discretion in affirming the
And the average number of workers is 1 worker per hectare, although decision of the Secretary of Labor. That’s it. That’s a question of law.
they are moving in teams. So that is what happens – you are made to We do not correct errors because this Court is not a trier of facts.”
enter into a growers’ agreement. Now, you are supposed to hire your So, asa man ang giyera? Naa sa ubos! You better make sure of your
individual workers (because now, you are a grower). But since you facts med-arbiter level pa lang! Pag-design pa lang ining
cannot discipline them (and you do not have capital to pay them), the cooperative, imo nang iayo nga the control test will boil down to the
banana corporation ends up supplying your workers, and the work cooperative. Ask katong mga technician niini nga magpamiyembro
done in your farm is deducted from your receivables from the banana sa cooperative aron sila na ang magdumala sa mga workers. If the
company with which you have the exclusive contract to sell your technicians still remain to be employees of the banana
bananas. corporation, it’s the banana corporation who has control.
Now, ingani ang mahitabo. Di mana sila kahibalo, kanang mga
Now, these workers have begun to organize into a union. So what grower. Daghan kaayo’g mga deduction ana. Unya nagasaka ang
did the banana corporations do?? Some bright guy told them to form presyo.
a cooperative – convinced them to resign from the company,
become a member of the cooperative, and the cooperative now will JULY 11 [ SANCHEZ ]
enter into a contract with the company with the object of supplying
the work. So, these workers filed a petition for certification election NOTE: “Sorry, labo jud kaayo ang recording, wala nag-mic
si Father and daghan pajud naga-ubo. Tried my best para
with the banana corporation. The banana corporation said, “They are
ma-transcribe”
not our workers! They are workers of the cooperative, and the
(30:00) Now, these are important because this, they could
cooperative is engaged by us to do some work activities for the not understand anymore, the deductions and they have a
growers. The growers are not their employer. It’s the cooperative!” 15-year contract. So they give notice to the company. Once
That is what was contained in Sumifru’s responsive pleading to the they start abrogating, they begun selling their bananas the
petition for certification election. Now, what happened? The med- Class B to outsiders. Now, the trouble is the banana
arbiter had to determine whether there is an employer-employee companies call that "polvoting???" Didto nila ipamaligya sa
relationship. What did the med-arbiter use for the determination? uban na wala mu-finance sa imuhang pagtanum ana. So
Control test! ‘Di ba? So, it’s the company who has the control! It’s not you are called "pulvoter???" Nilukso ka para ibaligya nimo
the cooperative! The cooperative does not know anything about didtos uban. File dayun og kaso ang mga banana company,
growing bananas! So the banana corporation is the one in control. injunction and TRO. To prohibit you from selling to others
because you are obligated to sell to them.
So the ruling of that 2017 case is that “this cooperative” is a labor-
only contractor which is prohibited! {But I tell you, until now, all the
The SC said: it is a well-known action in law. You must
banana companies have this system of a cooperative.} establish a clear right to be awarded an injunction and you
must prove that that damage that result to the issuance of
Now, there’s another new case of Sumifru v. Spouses Cariño (a the injunction is less than the damage that will be
2018 case). There’s a growers’ agreement between the banana perpetuated if the injunction will not be granted. Tan-awa
corporation and a small farmer, the Spouses Cariño. They had a inyong Provisional Remedies.
disagreement with the banana corporation. Di daw sila kasabot
nganong daghan ug deductions sa receivables from the company. ***Story about Judges and court stenographers
Question: which is more expensive, the altitude bananas or the
lowland bananas? It’s the altitude bananas! It takes longer to grow, That's why you must establish that you can, that even if you
are tied to your contract (inaudible). Why is your right not
and it’s sweeter! There was a time when the demand for altitude
clear? Because the implementation of the contract is
bananas in Japan skyrocketed. So, there was a race to plant bananas controversial, according to the SC. So you can have it
6 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
(inaudible). You have to establish your right in order to adequate to support a conclusion. That is enough,
merit an injunction with the trial of the merits of the action. there is already a finding of fact.

Daghan man kaayoy maglagot anang Wage Order. But read Now, when there is labor contracting, the question of EER is
that so that you will know the controversies about, not just not just a question of fact, it becomes a matter of law
the establishment of the appropriate bargaining agreement because this ostensive employer who hires, fires, who does
but even the establishment of the employer-employee not have the control because it is the banana companies are
relationship. So that is the final defense. They are not my the one who has control over their work. That employer is
employees so you cannot go to certification of election. cancelled out. There is no other employer but the banana
That's the defense of the banana companies. corporation. The law does not say na sila nalang duha. No!
He is cancelled out and the banana corporation becomes the
What is the Nature of Petition for Certification? only employer.

The nature has first been established in the So, non-adversarial, fact-finding, and because it is fact-
landmark case of LVN vs. Phil Music Guild. That's why finding, the findings of the med-arbiter, labor-arbiter, the
that is the most important case in Labor. It not only 1st line for the labor tribunal, it becomes binding upon the
establishes the primacy of the Control Test in the reviewing court when there is dispute. It has commanding
establishment of EER, it also establishes the nature of the and persuasive force .When it will be overturned? When is
Petition for Certification of Election. there a possible overturn of the factual parameters of the
The SC says, under the penned of Justice Roberto case? If there is conflict. Example: The med-arbiter says this
Conception: A Petition for Certification of Election is a non- and it is reversed by the Secretary of Labor. Mao nang
adversarial proceedings. In other words, when the pagsaka ana sa Court of Appeals, the CA will have to look
employees petition for the union, the employer is not an closely and then the SC can review the review of the CA as
adversary. What is the employer? It is not in opposition. to conflict to the factual findings.
What is he? He is a bystander! Sa ato pa, way labot. He has
nothing to do. It is the employees who choose whether or According to Roberto Conception(In LVN vs PMG case),
not there is a representation and if so one, who their because it is a finding of fact, the requirement of the DOLE
exclusive bargaining agent is. that the Petition must be under oath and verified, and it is
So when you say non-adversarial, how do you put title to not complied with, that is not a ground for dismissal. That
the case? is only formal. The Petition is not necessarily dismiss, it is
only return. Kanang mu-file sa Petition, kaning mga worker,
The case therefore is just like the establishment of a status di na idismiss. Ignan ra na nilang mga worker na buhati nag
or a fact. verification. Anyway the verification is just an additional
 It is not entitled like affidavit that the facts stated therein are true and correct
this, example: Samahan ng mga according to my own personal knowledge. Dili best of my
Manggagawa ng Sumifru vs Sumifru. knowledge. If you do not describe the preliminary
 It is In re: Petition for Certification Election investigation, is that fatal? LVN says it is not fatal because
of the Regular Employees of Sumifru. it is non-adversarial.

To established a fact!. What is the fact to be The only right that the employer has is to be served a
established? Question of representation and if copy of the petition.
so minded, who are the representative.
 It is not adversarial; Now, according to the implementing rules, when you file a
 it is fact-finding; Petition you must have proof of service to the employer.
 it is summary in nature; and Example: Wala ka makahatag sa employer og
 the technicalities of evidence is service, kanang imog gi-file na Petition, again, that
not followed; is just a formal defect. They do not have to follow
 It is summary, cursory. it. It should not be dismissed. Why is there so much
leeway given to the Petition? Because the
Unsaon manang 500 kabuok? Tagsa-tagsaon na. You
constitution is biased in favor of the exercise of the
established a relationship by determining the parameters of
Right to Self-Organization. Tagaan na gani mog
the relationship. Unsa may buhat ninyo, unsa may activity.
petition sa mga "mamumuong manggagawa" mura
Whoever is in the parameter is covered by the decision. But
ra nag silhig na tukog. Ang trabahante nga nag-
if you go to the Rules of Court, tagsa-tagsa unta na sila
inusara minus og ginhawa, dali ra mabali. Ang mga
because there are as many contracts as the employees. But
trabahante nga nagkahiusa, dili mabali. Balia ng
because it is summary in nature, and that is the nature of
silhig na tukog, di na mabali. Perog tukog ra,
labor disputes, there is no need to go one-on-one.
mabali. Dapat ning mga trabahante, magkahiusa
arun atuang tingog madungog jud.
Then what is the measure of evidence?
(#ApesTogetherStrong)
The quantum of evidence necessary to support a
Now you must understand the so called: Right to Work
claim, is is just substantial evidence. The lowest
Law.
form of evidence. That quantum of evidence that
That's not in the Philippines. This is in the United States. In
one who has reasonable mind would accept as
the PH, when the majority of the bargaining unit has voted

7 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
for representation and has voted for an exclusive bargaining in Manila. Let’s say one half is in Mindanao and the other
unit(di jud maklaro, daghan naga-ubo) half is Visayas and Luzon.

Remember, the basis for the Certification Election is, this is Now, let us say the corporation is all of a sudden sold and
the barganing unit, what makes a Certification of Election only half remains and the original corporation has a certified
valid? 50% plus 1. Kinsa may mudaog sa botohan? The CBA for its rank and file workers and the license was issued
choice of the workers, the majority of the valid votes cast. by the national office of the Department of Labor.
So kung 50% plus 1 valid election, ang uban wala muboto.
Exclusive bargaining agent naka and you are the choice of So what if the remaining portion that was left after the
the majority. You are not the choice of the majority company was sold is in Mindanao. You mean to say that
(NB: naay explanation si Father ma dispite gi-vote ka sa after the corporation split, the remaining portion which is in
50% plus 1, dili japun ikaw ang choice sa majority. Dili lang Mindanao will still file the request for SEBA in Manila where
jud ma-klaro kay naay nag-ubo), but the others will have to the original registration was issued? It cannot be.
go along with you.
The determinative factor is the Regional Office that has
Now the Right to Work Law says, that is a violation of your jurisdiction over the workplace. You file in any regional
fundamental right to work and earn for a living. So even if office in Mindanao. And the first office where the request
a majority wins, the minority must still be allowed to work was filed obtained jurisdiction to the exclusion of the others.
even if they don't want to go with the Union. That is why That is the ruling of the SC.
there is no union in the so-called Right to work States in the
United States. Texas, Louisiana, South Carolina, Right to Thus that rule (RULE VII) does not apply in cases where
work the dinha. Walay union kay bisan pagmadaog silag there is splitting of the corporation.
majority, ang minority mahimo mang mupadayun og
trabaho. Who will negotiate for them? They themselves. What are the requirements for the request of SEBA?
Kadtong niboto sa union, sila lang ang naay CBA.
RULE VII, SECTION 2. Requirements for Request of
JULY 17 [ TALON ] SEBA Certification

Exclusive Bargaining in 4 different ways 1. Name and address of the requesting LLO

1. Voluntary Recognition or Direct Certification (this 2. Name and address of the company where it
was already replaced by SEBA Certification) operates
2. Certification election or Consent Election
3. Run-off Election (it is also a certification election. 3. Bargaining unit sought to be represented
Its just a continuation)
4. Re-run election (also a continuation of the CE) 4. The approximate number of employees in the
BU
SEBA CERTIFICATION (Department Order No. 40-I- a. How does it know the number? If the
15) union, it is by head count. If it is the
NOTE: please secure a copy of the DO. company, how does it know? By payroll.
b. If there is a discrepancy between the
When you seek to be directly certified without going through number given by the union and by the
the process of Certification Election (CE), you still have to employer then they will call a hearing.
file a petition. This petition in D.O. 40-I-15 pertains to a c. And that hearing is called for the exclusion
“request for a sole and exclusive bargaining agent or inclusion of the voters.
certification”. d. And if still they cannot determine who is
correct, then the med-arbiter will ask for
This is just like a petition for certification election. Only your the payroll sheet 3 months before the
prayer is to certify me now because I am qualified. filing of the request. Because that is yet
untampered.
Where do you file that? e. And the med-arbiter will say the this will be
the list of employees embraced by the
RULE VIII, SECTION 5. Where to file bargaining unit that you proposed.
A petition for certification election shall be filed with
the Regional Office which issued the petitioning 5. Statement of the existence or non-existence
union’s certificate of registration or certification or of other labor organization (LO)/CBA.
creation of chartered local. a. If there is another existing LO, then the MA
will just order a CE. If there is none, then
It is my submission that this is erroneous. You cannot do only he has to do is to determine whether
that. Why? I’ll show you. you are telling the truth.

Imagine the Philippine archipelago. Suppose your The certificate of registration as duly certified by the
corporation is operating all over the PHL. The head office is president of the requesting union or certificate of
creation of chartered local as duly certified by the

8 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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president of the federation of the local shall be If he/she finds it deficient, the Regional Director shall
attached to the request advise the requesting union or local to comply within
10 days from notice. Failure to comply within the
RULE VII, SECTION 3. Action to the request. Within prescribed period shall be deemed withdrawal of the
one day from the submission of request, the regional request for SEBA Certification.
director shall:
RULE VII, SECTION 4. Request for certification in
1. Determine whether the request is compliant unorganized establishment with only one legitimate
with the preceding section and whether the labor organization; validation proceedings. If the
bargaining unit sought to be represented is regional director finds the establishment unorganized
organized or not; with only one legitimate labor organization, he/she
a. An organized establishment means an shall call a conference within 5 work days for the
organized bargaining unit that has been submission of the following:
proposed not the establishment.
b. The establishment might have already a Section 4.1 Action on the Submission- If the Regional
certified exclusive bargaining agent but for Director finds the requirements complete, he/she shall
another bargaining unit other than that issue during the conference a certification as sole and
which is proposed in its request. exclusive bargaining agent enjoying the rights and
c. Let us say this establishment has privileges of an exclusive bargaining agent of all the
supervisors, daily wage production employees in the covered bargaining unit.
workers, monthly-paid white collar
administrative workers and sales force. Let The Regional Director shall cause the posting of the
us say it has 3 exclusive bargaining agent. SEBA certification for fifteen (15) consecutive days in at
One for the supervisors, one for monthly least two (2) conspicuous places in the establishment or
paid and another for the sales force. If you covered bargaining unit.
file a request for SEBA, covering the daily 1. The names of the employees in the covered
wage production workers are you filing bargaining unit who signify their support for
form an organized establishment? the certification. Provided that said
Unorganized gihapon. Kay wa man na sa employees comprise at least majority if the
BU. Wala pa virgin pa na. ang 3 di na number of employees in the covered
virgin. bargaining unit; and
d. Why is it important to determine?
Organized or unorganized? This two 2. Certification under oath by the president of
categories are important to distinguish the requesting union or local that all
because there is a policy of automatic documents submitted are true and correct
certification election. This policy is applied based on his/ her personal knowledge
differently depending on whether the
establishment is organized or unorganized. The submission shall be presumed to be true and
e. If the is unorganized, you do not need correct unless contested under oath by any member
signature support. Automatic the of the bargaining unit (sayop ni. Dapat by any employee
certification election will be held. included in the BU. Not the member because the BU is not
f. If it is organized and you timely filed it an organization) during the valid conference . For this
within the freedom period and you have purpose the employer or any representative of the
the signature support of at least 25%, of employer shall no be deemed a party in interest but
all those included in the bargaining only as a by stander to the process of certification.
agreement, automatically, the med-arbiter
will issue an order to hold a certification If the requesting union or local fails to complete the
election. requirements for SEBA certification during the
g. The med-arbiter no longer has jurisdiction conference, the request for SEBA certification shall be
to deny that petition. referred to the election officer for the conduct of
h. Suppose the incumbent union will oppose, election pursuant to RULE IX of this rules.
saying that it is only 25% but they have
the majority signifying support to the Can there still be a certification election even if there is 1
incumbent. Can that prevent the union? Yes. There will be only 2 options, “No union” or “yes”
certification election? No, it cannot. The to the requesting union.
med-arbiter will just say, “majority man
kaha imo, di mag-election ta. Ayaw JULY 17 [ TAN ]
kahadlok kay majority naman ka ha ka.
Wala nang daghang kyawkyaw diha. “ After they are declared the SEBA, that will now then be
posted for 15 days, for the purpose of any of those
2. Request a copy of the payroll for purposes of employees (included in the bargaining unit, who may be a
SEBA certification pursuant to section 4 of this member of the union) who may not want to be represented
rule by the particular requesting union. They will complain with
the Med-Arbiter, who will then raise doubts, and shall cause
an election. If the requesting union really has the majority,
9 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
then it will win. But that posting in two conspicuous places
in the workplace for 15 days gives the chance for the Section 6. Request for Certification in Organized
bargaining unit (or any part thereto) to lodge a complaint, Establishment- If the Regional Director finds the
in which the Med-Arbiter will order the holding of a establishment organized, he/she shall refer the same to
certification election. the Mediator-Arbiter for the determination of the
propriety of conducting a certification election in
Section 4.2 Effect of Certification- Upon the issuance accordance with Rules VIII and IX of this Rules.
of the certification as sole and exclusive bargaining
agent, the certified union or local shall enjoy all their gifts RULE VIII
and privileges of an exclusive bargaining agent of all the CERTIFICATION ELECTION
employees in the covered bargaining unit.
Section 1. Who May File- Any legitimate labor
The certification shall bar the filing of a petition for organization, including a national union or federation that
certification election by any labor organization for a has issued a charter certificate to its local/chapter or the
period of one (1) year from the dates of its issuance local/chapter itself, may file a petition for certification
(Note: this is the one year certification rule). Upon election.
expiration of this one-year period, any legitimate labor
organization may file a petition for certification election A national union or federation filing a petition in behalf of
in the same bargaining unit represented by the certified its local/chapter shall not be required to disclose the
labor organization, unless a collective bargaining names of the local/chapter’s officers and members, but
agreement between the employer and the certified labor shall attach to the petition the charter certificate it issued
organization was executed and registered with the to its local/chapter.
regional office in accordance with Rule XVII of this Rules.
When requested to bargain collectively in a bargaining
The law does not allow the filing of another request for SEBA unit where no registered collective bargaining agreement
at the end of the one year period of a certification by direct exists, an employer may file a petition for certification
voluntary certification upon request from SEBA. election with the Regional Office.
In all cases, whether the petition for certification election
Rationale: You request from SEBA, and are certified for one is filed by an employer or a legitimate labor organization,
year. You are not to be touched because of it. At the end of the employer shall not be considered a party thereto with
one year when there is no SEBA, can there be another union a concomitant right to oppose a petition for certification
that can request for SEBA? Why does it have to be a petition election. The employer’s participation in such
for certification that should be filed for one year, and not a proceedings shall be limited to: (1) being notified or
request for SEBA? Because the bargaining unit is no longer informed of petitions of such nature; and (2) submitting
unorganized. What is there to certify if they supported the the list of employees during the pre-election conference
union? So if you file a request for SEBA, that will should the Mediator-Arbiter act favorably on the petition.
immediately a request for a certification election. However, manifestation of facts that would aid the
Mediator-Arbiter in expeditiously resolving the petition,
The Supreme Court has stated that you can only have such as existence of a contract-bar, one year bar or
voluntary recognition and direct certification if the deadlock bar may be considered the contract-bar rule
establishment is unorganized. You already went through a shall apply in any of the following: (1) When there exists
certified exclusive bargaining agent, so you are no longer an unexpired registered CBA; or (2) When there is no
unorganized. People have made choices, and now you have challenge on the representation status of the incumbent
to determine whether that choice is maintained or is now union during the freedom period.
going to be change, through a petition for certification
election. There are three possibilities of who can file the petition for
certification election (the Implementing Rules just state
Section 5. Request for Certification in Unorganized two).
Establishment with More Than One (1) Legitimate
Labor Organization- If the Regional Director finds the Any legitimate labor organization, including a
establishment unorganized with more than one legitimate national union or federation that has issued a charter
labor organization, he/she shall refer the same to the certificate to its local/chapter or the local/chapter
election officer for the conduct of election certification. itself, may file a petition for certification election.
Between a federation and a newly created chapter, who is
The Certification election shall be conducted in considered better to file a petition, if the charter or local are
accordance with Rule IX of this Rules. headed by officers that are illiterate and cannot understand
and read? Let’s say they are competent. The federation is
If there’s two of you, that’s already an automatic even more confident. So between the local and federation,
certification election. It cannot be by request. If the Med- who would you prefer to file for an unorganized
Arbiter finds out there’s another labor union, but there’s establishment?
only two members, then do you have to file for a
certification election? Obviously the vote of the majority will If the federation files, the president of the federation or any
be in your favor, so why do you have to be scared on holding the officers and organizers will sign. If the local files, then
a certification election? Only a dishonest entity would be the president of the local will sign and attested to by the
afraid of an election. secretary. That is why the new law says that the local does
10 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
not have to put the names of the local officers and the a union? That’s what happened in Divine Word University v.
members in the filing of the petition. Signature support is Torres.
not needed if unorganized. But if the federation files, those
names aren’t composed of the employer’s employees, but JULY 17 [ VILLAVICENCIO ]
instead are the federation officers’. If organized, the filing
of the petition, for such to surely win a certification election We go back to Divine World University of Tacloban vs
order, you have to put at least 25% signature support. Then Secretary of Labor Torres, the independent union won
the Med-Arbiter has no more discretion but to grant the the certification election. They filed a bargaining proposal
petition for certification election. with the management. But then the president of the union
died. They did not what to do. For three years they did not
If you’re unorganized and you serve a copy of the petition, follow it up, the university did not act also on their
the only right of the employer is to be served such copy bargaining proposals.
(since he is a mere bystander), so he will be able to know
who is the president and the secretary. The Med-Arbiter will The next thing, the university administration (inaudible)
not accept any petition that has no proof of service to the bargaining proposals submitted by ALU. This time it is a
employer. The Med-Arbiter can even dismiss it. So there federation. Bec I the meantime according to the faculty
must be service, then record it in the petition so you have union they have affiliated with ALU was helping them. So,
been deemed complied with the law. ALU drew up a new set of bargaining proposal. The
management received it and said “okay let’s do bargaining,
Interesting to note that there is no res judicata in a petition let’s set the date” THAT WAS THE FIRST MISTAKE OF THE
for certification election. That’s why we have rules on when MANAGEMENT.
such petition is prohibited from being filed, because there is
no res judicata. What management should have done is “Sorry ALU I do not
know you, what was certified was the independent labor
Example: Election fraud. The union lost. One year from now, union that won the election.”
there will be another who file a petition. Prior to the period,
the bargaining unit was shaken up, because some of its The management should (inaudible) the date. On that day
members fled to overseas for new work, and now there are that they were supposed to negotiate, the lawyer of the
new members. Now they want a union. There must be an management filed for a petition for certification election.
election. No res judicata, because this is not an adversarial According to the lawyer, he cited the provision which says
controversy. What is sought to be determined, because it’s “that when the management is requested to bargain
a fact-finding proceeding, is the question of representation. collectively, then it may file for a petition for certification
election.” THAT IS HIS SECOND MISTAKE. Such mistake is
A national union or federation filing a petition in FATAL.
behalf of its local/chapter shall not be required to
disclose the names of the local/chapter’s officers and They could have said “we do not know you! We are not going
members, but shall attach to the petition the charter to entertain your bargaining proposals.” THAT SHOULD
certificate it issued to its local/chapter. HAVE BEEN THE CORRECT ANSWER. Because the employer
Is it possible for a federation to file a petition for certification in not under any legal obligation to file a petition for
election, even if they do not have a single adherent in the certification election when requested to bargain collectively.
bargaining unit? What’s attached in the petition is that there
is local chapter, even if there were no members in that The provision of law says “MAY FILE”- directory not
union. Can that be done? Sadly, yes. mandatory. The Supreme Court later on ruled that: the
management was not in good faith. Ni bargain ka karong
If you were an employer who will file a motion to be apprised adlawa, pero ni file kag petition aron pilion unta kinsa imong
on who the members of the petitioning union are, the Med- ka bargain na unsa man ka. Giila na ba nimo nganung
Arbiter will of course dismiss such motion for lack of kinahanglan man kag certification election? Kaila na man ka
standing, because he is not a party to the proceeding, but a ha ka? Ni set na man ka ha kag date? THAT IS BAD FAITH
mere bystander. What the employer should do is to direct BARGAINING.
an employee to wreak havoc in any underground meetings
regarding the union, to motivate some of the members of The Department of Labor Secretary ruled against them. The
the bargaining unit not to join the union. Supreme Court upheld the Secretary of Labor.

The employer may also file a petition for certification They were adjudged to pay 35 Million. When they found out
election with the Regional Office, when requested to bargain the grant (inaudible kay havey ang joke ni Father dinhi) you
collectively in a bargaining unit where no registered CBA know there is only one facility of the school that is operating.
exists. What is that? The College of Law because it is supported by
the brother of Imelda Marcos. It is called the Divine World
When you’re an employer and suddenly a labor union comes University College of Law. Everything else is close. No more.
up to you and states their bargaining proposals, and you Kaingon guro ang mga maestra na gubon na mo ang
say that “I wasn’t aware that your employees already had a building; ibaligya diay na mo ning sin, kining atop. Di man
union, but to be sure I’ll file a petition for certification na ninyo matandog na kay iya man na sa Archdiocese of
election for them”, then you’re a dumbass employer. Why Leyte.
would you file a petition when it’s clear that there’s already

11 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
(Downtown part of Cebu is where San Carlos University. jurisdiction or which issued the petitioning union a
That is owned by SVD. But because in the beginning there certificate of registration. This is less than accurate. It is the
were Germans, San Carlos University is in the name of the regional office that has jurisdiction over the
Roman Catholic Archbishop of Cebu because the Germans workplace where the union is operating or seeks to
are not allowed own lands. be the exclusive bargaining unit. If that is not followed,
One of these days you go over the parity cases. You read then there is a chance that the place where you file is too
the decision of Justice JBL Reyes- Quasha vs People. far away causing inconvenience to the labor organizations
that wish to be declared the exclusive bargaining agent.
Quasha was one of the few Americans who were left
practicing law in the Philippines because he was already It can happen that two or more regional offices have
practicing law before world war 2. In fact he is dubbed as jurisdiction over the workplace. What will happen? It will be
the father of the intellectual property law in the Philippines. the regional office that first accepts the petition that has
Naa man syay yuta, American citizen man sya nya human jurisdiction to the exclusion of the other regional office that
naman ang parity. Quasha deeded his property to his house would otherwise have jurisdiction to accept petition for
boy. That was nullified by the Supreme Court. ) certification election.

So, employer can file but directory not mandatory. Example. Kanang Paglas Plantation, 1000 hectares. Naa’y
The 3Rd who can file is my submission and my authority is, Region IX ug ARMM ana. Kinsa may na’y jurisdiction ana? It
LVN vs Philippine Musicians Guild. It is found in the will be the regional office that first accepts the petition to
footnote. It said: there is such a proceeding for a petition the exclusion of the other.
for decertification election.
Now we go to this new provision. (D.O. No. 40-I-15)
My submission is that 25 % of the employees covered
by a bargaining unit in an organized establishment Section 7. Posting. - The Regional Director or his/her
can file for a petition for decertification election authorized DOLE personnel, and/or the petitioner shall
within the last 60 days of the CBA if they want to put be responsible for the posting of the notice of petition
an end to the representation by an Exclusive for certification election.
Bargaining Agent.
To apprise the bargaining unit, it must be posted.
Muingon ka, wa man lagi na gibutang sa Labor Code! The
answer is if it is not there then that freedom period is less Once there is already a determination of the
than 3(?) because the exercise of the right to self appropriateness of the bargaining unit, what the med-
organization includes the right not to form a labor arbiter will do is to hold a hearing as to who are included in
organization. the bargaining unit. That is the inclusion and exclusion
hearing. To apprise the employees about that, then they
Suppose you change your mind, what is your remedy? Way post in two conspicuous places at the workplace the list of
Labor organization mofile ana! Kinsay mofile ana? IKAW. the workers.
Mulihok ka according to your right. If 25% of you within the
bargaining unit fil joint petition, the Labor Arbiter has no Ikaw nagtrabaho ka didto, regular worker ka, pangitaon
jurisdiction but to grant that certification election. nimo imo pangalan didto. Ug wala imo ngalan didto, unsaon
man nimo pagboto nga di man ka recognized? So you will
What will be the choices there? go to the med-arbiter, and you will inform the med-arbiter,
“this is my position, I am just the same as the president.”
1. The incumbent union
2. No union One certification election which I attended in manila, UTEX
Textile Mill production workers. Kada makina pito katao.
Pag no union gani, balik ka sa individual contract of Mubuhat ug “kanon”(?). Kanang garments manahi ug
employment. But if you do not accept that submission your panapton, garments na na. Kanang textile magbuhat pa ug
freedom period is less than 3 (?) panapton. That’s why the machines that they have are
weaving machines. Knang panapton nga nahimo na, ituslob
Where are you going to file? dayon na sa print ug unsay color or design ana. Labaw gyud
anang usa ka machine is a weaving machine tender.
The Regional office which issued the petitioning union a
certificate of registration. This less than accurate. It is the Tender is a noun, it’s not an adjective or a verb. Tender, dili
Regional Office that has jurisdiction over the work place na humok, magbalantay. Very british. Sa amerikano
where the union is operating who seeks to be the exclusive caretaker man na. Weaving tender. Ngano man ng bisag US
bargaining agent. If that is not followed then there is a ang makina mao man nay termino? Kay nauna pa mn ang
chance the place where you file would be too far away weaving machine sa Britain kysa US. So mao naa’y head
causing inconvenience to the labor organization who wish to tender, assistant tender, pool supplier, oiler, etc. Muingon
be declared as the exclusive bargaining agent. ka, “I am a weaving machine oiler, why is my name not
there?” You can see how important reading and writing is.
JULY 17 [ SUAREZ ]
Kanang uban mga ignorante bisag ipost pa intawon wa gyuy
Now we have answered where to file (petition for hanaw. This presupposition of a way of keeping the union
certification election)-- to the regional office which has
12 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
honest by posting it in two conspicuous places is really translate” Wala. It is presumed that this is the lingua franca
useless if the workers are illiterate. Di gyud na magsilbi. of the place so you, if you are Ilonggo, you must know
visayan-cebuano. And then the ballots have certain
Section 18. Release of Order/Decision within ten categories like spoiled ballot.
(10) days from the last hearing. – The Mediator-
Arbiter shall release his/her order or decision granting What is this spoiled ballot?
or denying the petition personally to the parties within
ten (10) days from the last hearing, copy furnished the This refers to a ballot that is torn, defaced or contains
employer. markings which can lead another to clearly identify the voter
who casts such vote.
Please remember this. The order to hold certification
election in an unorganized establishment is considered a So spoiled and marked ballots pareho ra na sa certification
final order and therefore may be appealed. election. Marked Ballot, it is valid in all requirements pero
naa kay gipangbutang dinha, mga ilhanan nga pagcount sa
And the employer, as many times been recognized, if he mga ballot ipakita man na, nya naa man mga watcher kita
appeals, he may on the ground of grave abuse of discretion. dayon na sila. Spoiled ballots are not counted as part
of valid votes.
Why? Because the employer has a business interest as to
the configuration of the bargaining unit. Abstention Ballot. Nothing is written on it. There is no
choice, nothing. There is no mark but it is cast.
The appropriateness of the bargaining unit is amenable to
many configurations because the law does not say the “most Is that in favor of “no union’?
appropriate” bargaining unit. The law only says appropriate That is not counted as in favor of no union. But, it is counted
bargaining unit. If the configuration is such that there is a for purposes of computing the valid votes cast.
multiplicity of bargaining units within the same employer so
much so that the employer says “I can no longer What makes an election a valid certification election?
concentrate on the business goals and ends of my Majority of the eligible voters must participate. Abstention
establishment. I am left with just jumping from one ballots are counted even if there is no choice.
negotiation to the other therefore I am saying that this
bargaining unit should be changed!” What is an example of Section 6. Qualification of Voters; Inclusion-
that? Laguna Colleges. Exclusion. – All employers who are members of the
appropriate bargaining unit three (3) months prior to
The SC said in UP Diliman vs Pura Ferrer-Calleja, the non- the filing of the petition/request shall be eligible to
teaching should be a separate bargaining unit from a vote. An employee who has been dismissed from work
teaching staff of the university. That was the decision of the but has contested the legality of the dismissal in a
SC in UP Diliman vs Pura Ferrer-Calleja, Director of forum of appropriate jurisdiction at the time of the
Labor. issuance of the order for the conduct of a certification
election shall be considered a qualified voter, unless
When it came to Laguna Colleges, gamay ra man sila. So his/her dismissal was declared valid in a final judgment
the union proposed that the so-called employer unit at the time of the conduct of the certification election.
composed of daily paid workers, non-teaching staff, and the In case of disagreement over the voter’s list or over
faculty make up one bargaining unit. The med-arbiter says the eligibility of voters, all contested voters shall be
“no! separate!” allowed to vote. But their votes shall be segregated and
sealed in individual envelopes in accordance with
The employer said “We are only a very small college  Sections 11 and 12 of this Rule.
buhaton na lang usa.” And then the CA dismissed the appeal
of the employer on the ground of no legal standing. But the Once again I will point out here that the term “members”,
SC later on recognized the employer’s standing because he di lagi na member. Kay ang appropriate bargaining unit is
has a legitimate business interest that is defeated by the not an organization. This must be “all EMPLOYEES who are
order. So, this is not to gloss over the evil that many included within the appropriate bargaining unit three (3)
employers resort to. months prior to the filing of the petition/request shall be
eligible to vote.”
CONDUCT OF CERTIFICATION ELECTIONS
Why three (3) months?
Are you taking up Election Laws? Have you gone through Because that is the time when you can be assured that there
the rules of appreciation of ballots or you no longer go was still no adjustment or expanding or decreasing the
through that because we have now PCOS? It is still there in employees included in the bargaining unit.
the Omnibus Election Code but it is no longer a crucial issue
in the elections. Example: Ikaw employer ka, you know already that this is
the bargaining unit that is being organized. Naa kay mga
But in certification elections, wala ma’y PCOS. So the ballots tawo nga dili gyud gusto ug union, isulod gyud nimo tanan
are all sheets. There is a proviso which says that the ballots didto, you expand the bargaining unit. Kung nakahibaw ka
should be translated in a language understandable to the na mao na ng bargaining unit unya nailhan na nimo ang
workforce. So it must be translated. TADECO elections mga gusto gyud kaayo ug union, panangtangon na na nimo
binisaya ng ballots. Muingon ka “Ilonggo man ko ti please dinha. So mag exclusion-inclusion, wala na sila dinha. Kung
13 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
pangutan-on “Why are they not there? The union’s list is the employer, so that he can pursue his legitimate
that they are there?” business.

“They have been transferred, they have been promoted” So, if it is an unorganized establishment, you can file a
“Nganong karon lang man sila napromote?” “Because now certification election petition at any time, provided the
the company wants to reward them.” Binuang naman na. certification year rule does not apply. If it is organized,
So let’s go back 3 months before the filing! That is the TRUE the moment there is a certified exclusive bargaining
inclusion of the bargaining unit. Kung magbangga na gani agent, you cannot file a petition for certification
and there is no way the med-arbiter can decide, the med- election one year from that certification election.
arbiter can say “give me the same payroll 3 months before
the filing.” And that will be the determinative list of the Deadlock Bar Rule
employees covered by the bargaining unit.
What happens if he does not conclude any CBA? What is the
Naa pa nay mga polling places. If there are more than 1 reason why he does not conclude any CBA? Because they
union, each one will have an inspector per polling place. And cannot agree on the terms and conditions of the CBA. They
you register the inspectors. So read this because this is the negotiate, they negotiate, but there is no conclusion in their
mechanics of the certification election. negotiation. What happens? At some point or other, one of
the parties, or both parties, will declare a deadlock.
JULY 18 [ MANAAY ]
Once there is a deadlock, that deadlock may be subjected
When can you not file a petition for certification to either voluntary arbitration, or compulsory arbitration.
election? Do not believe what they say in your When that happens, for as long as the deadlock remains
Implementing Rules. To answer that question you must first unresolved, there can be no petition for certification
distinguish between employment in a bargaining unit. You election. Even if it is already one year after the promulgation
must distinguish organized and unorganized. Unorganized, of the results of the certification election. That is called the
the common answer is at any time you can file. Wala pa "deadlock bar rule". So after the certification-year rule,
man, nag-organize pa man. That is not accurate. The you have the deadlock bar rule. For as long as the deadlock
correct answer is: Anytime, provided the certification- exists, there can be no petition for certification election
year rule does not apply. covering that same bargaining unit from which that
deadlock arose.
Certification-Year Rule
Contract-Bar Rule
What is the certification-year rule? The certification-year
rule means that a valid certification election was conducted Now, suppose that deadlock is resolved, and CBA is
in a particular bargaining unit, one year from and after the produced, the next rule applies. What is that rule? The
results of the certification election was promoting then you contract-bar rule. For as long as there is a CBA that is
cannot file a petition for certification election. Regardless of certified, the CBA bars the filing of a petition for certification
the result, if the certification-election, produces a winner, a election. That is called the contract bar rule.
union becomes an exclusive bargaining representative, a
certified, he has one year to conclude a CBA. So all these three rules, certification-year rule, deadlock bar
rule, contract-bar rule. These are associated with organized
There can be no petition for certification election that can establishments. Tangentially, tabsing lang gamay, the first
be filed covering that same bargaining unit because that rule, certification rule, is applicable with unorganized
would disturb the process of collective bargaining. He must establishment if the certification election does not produce
be given a chance to conclude a CBA. That bargaining unit an exclusive bargaining union. So those are the three rules.
is already organized, there is an exclusive bargaining agent
there. So it's for their right. Let us go, one by one. You think that it is just a petition for
certification election that is barred in an unorganized
What if the election is valid, but the results does not produce establishment that has right to certification and no union
a certified exclusive bargaining agent? In other words: no won. You think that a petition is barred. What is being
union won. The certification year rule still apply: you cannot established now especially in the case of Sta. Lucia East
have a petition for certification election in that same Commercial Corporation vs Secretary (2009), the
bargaining unit one year from the results of the certification Supreme Court has said that a petition for SEBA is also
election are submitted. barred.

No union won, no certification election for one whole year. STA. LUCIA EAST COMMERCIAL CORPORATION VS
What is that bargaining unit? That bargaining unit is still SECRETARY
unorganized because there is no exclusive bargaining agent.
But you cannot hold a certification election there. Why? The FACTS: Here is a bargaining unit. A petition for certification
reason given by the Supreme Court is to give that election was filed. A certification election was held. No union
bargaining unit respite, rest. When you have a certification won. After no union won, one year no certification election
election, it is disturbing to the workplace. There will be petition can be filed. And yet, during that year, the employer
rivalries, as to who will be given the allegiance of the managed to register a CBA, which according to him was a
bargaining unit, as their exclusive agent. Gubot. The CBA arrived at with a union whom they recognized as
bargaining unit must be given a rest, so as to do justice to exclusive bargaining agent. Now, the new(?) served the first
14 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
certification election, after the anniversary of the election, That is an illegal tactic. That's what the law says. You cannot
now files a petition for certification election. When they filed act negatively or positively towards the union if you are the
a petition for certification election, the union that was employer. Later on we will found out how we can do that
voluntarily recognized with whom the employer already has legally.
a CBA and the CBA was registered with the BLR, they
opposed the petition. They are saying the petition is already Alright, that is the certification year rule. Now, deadlock bar
barred. There is a CBA, contract-bar rule. rule. A deadlock happens when there is negotiations going
on with the union. It presupposes that there is already an
RULING: The SC said that the contract bar rule, cannot be exclusive bargaining agent and the management is
invoked, because that contract is suspect. Why is it suspect? negotiating with the union. It could be negotiating a
Less than a year ago, the bargaining unit decided no grievance.
representation. No union won. How come all of a sudden
there is a new union that is voluntarily recognized? That A grievance is a controversy that arises out of a collective
union is a company union. Ngano kalit lang man nigawas bargaining agreement. Or it could be a negotiation as to the
na. terms and conditions that a CBA should contain. Now, let us
say the negotiations is about an economic provisions.
If you read the Sta. Lucia, it is in your notes, the SC said Specifically the increase that the management is willing to
that is suspect. So, within the certification-year rule of an give, and what the union is asking from the management.
unorganized establishment you cannot voluntarily recognize Suppose the union is asking for P100 a day increase in the
and directly certify. Ginhawa sad ka ug one year before you daily rate.
can recognize. Otherwise that recognition is highly
suspicious, that is a company union. That the union was Then the management says "We are only willing to give P10
organized not by the employees covered by that bargaining a day". Muingon ang union that cannot be, because mahal
unit, but actually by the employer and the employer just na ang panaliton ron. Kinsa na lang makasurvive?
kind of either forces the employees in the bargaining unit to Management says we cannot afford. If we do that, manira
adopt it, or by fraud, stealth, or whatever, the workers mi. Di ka mahimo ana, P10 mahimo pa nuon. P10 multiplied
adopted. by 25, that's P250 a month. Niya patungan pa na nimo ug
another P250, 13th month, niya patungan pa na nimo ug
How is that by force or stealth? Muingon ang management roll-up cost, kung magpa-overtime mi.
"Oh, Pilii ninyo na. We entered into a negotiation. They are
for you. Accept them as your union." Ana pud ang CBA "you In other words the costs careens so long. Kanang roll up
can increase every year.” Ratify this. You need 2/3 vote of cost. Leave, niya pulihan siya. Niya ang imong ipuli, saka na
the union to ratify the CBA. How can you get the 2/3 vote? sad ang iyang rate. Budget man na. So ingon ang
The CBA provides for the signing bonus. What is the signing management di mahimo P10 ra amo mahatag. Ingon na pud
bonus? Equivalent to 1-month salary. siya P100. Naunsa man na, pirting layua, sige ra sila balik-
balik. 10. 100. 10. 100. Ugma mao ra pud nang sturyahan,
Sayo kaayo ang 13th month pay diba. Kung ikaw trabahante sunod ugma mao gihapon. Bisan magsige ug order ug pansit
ka, mangutana ka pa ba ka sa union? Muingon ka "Asa man ang management, wala gihapon progress. Nangusog mo sa
ang problema?" Kay nangita ka naman sa signing bonus. pansit, mao gihapon 10. 100. 10. 100. Deadlock. That is
Kinsa man ang mudili kung usa ka buwan ang salary. Wa ka when deadlock happens.
nahibalo na nakuha na diay ka, nataga na ka, exclusive
bargaining agent na ninyo ang union. Bisan pag less than a Now under the Industrial Peace Act, RA 875, which
year before you voted to have "no union". Niya karon nikalit became effective 1954. Wa pa mo natawo ana, mao na
lang na naa nasad union. The SC said "That's sinugdanan sa labor relations. The rule then was that there
unbelievable!". It means that the company has manipulated is no deadlock unless the controversy, the stoppage of
the labor relations there within the bargaining unit. Unsay negotiation, has been either submitted to voluntary
definition sa company union? That is illegal ha. arbitration or compulsory arbitration, or has been the
subject of a notice of strike. Deadlock is one of the grounds
A company union is one whose formation, administration, for strike man. Wala gani notice of strike then it is not a true
registration, or operations are aided by the company by acts deadlock.
that are described as unfair labor practices.
Murag niginhawa lang mo, pahulay lang mo, sa inyong
It is wrong for the company to persecute a union. It is also negotiation, mao man nay theory sa under Industrial Peace
wrong for the company to act against the union. To help the Act, RA 875. But lately the Supreme Court has said there
union. To give money to the union. To befriend the union. is already a deadlock when the parties, or one of the
Negative or positive, illegal. What is the role of the company parties declare that it is a deadlock. Once there is a
with respect to the union? Bystander. Wa nay labot. People stoppage and an impasse occurs, (Fr. talks about the
would not be able to understand that. spelling of impasse). The party on the one side and the other
side are applying equal force, and there is no movement
There are many people outside who understand that the because neither party gives way. That is an impasse. The
company cannot persecute the union. They cannot do bad law is that when one party declares "Deadlock!", the
things to the union. But they cannot understand why you deadlock bar rule applies. That means no petition for
cannot help the union. Tagaan lang man ug lechon, nag- certification election may be entertained by the med-arbiter,
anniversary sila naghatag mi ug lechon. Unfair labor as long as the deadlock is unresolved.
practice nang ing-ana. That shall ripen into a criminal suit.
15 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
How long is that? It could be 15 years! It could be 10 years!
Kung mag comedya ka diha, tan-awa tong impasse sa PAL. Different FORA of the State
It took the President, Erap. His solution was “Okay, the two 1. Labor Arbiter
of you, Lucio Tan and the (union) president shake hands, 2. Secretary of Labor and Employment
there is a TV there, and there is Joseph Estrada” (Fr. talks 3. National Conciliation and Mediation Board
about Erap being the president with the lowest educational
attainment). And his solution was there would be an THREE INSTANCES WHERE NO PCE CAN BE FILED
impasse for 10 years! Walay supply, it will be the same CBA,
the old CBA will be extended for the next 10 years. Mao nay DEADLOCK BAR RULE
gibuhat ni Joseph Estrada. There is no timetable for a deadlock. Remember this. This
is because it would go through voluntary arbitration or
Giingnan niya si Lucio Tan, giingnan niya tong union. compulsory arbitration and it could go all the way to the SC.
Because Lucio Tan was ready to close the PAL. Giingnan niya
ang union, “Gusto mo ana? Kulob na ang kaldero ninyo ron, CERTIFICATION YEAR RULE
Wa na, sira na ang PAL". That was what happened. Things There is a timetable – 1 year after the proclamation of the
were frozen for 10 years, and that decision nobody wants to results. Please take note, it is not 1 year from the time there
touch. Why? Because effectively, by fiat, the President is a certification election. It is one year from the time the
made the union the exclusive bargaining agent for 10 years. results of the certification election is promulgated.
He was still administering a CBA, extended the CBA for 10
years. What is the term of the CBA? 5 years according to CONTRACT BAR RULE
the Labor Code. And by this trope of genius of Joseph The contract bar rule says that for as long as there is an
Estrada, he just extended it for another 5 years. existing CBA, the Med-arbiter will not entertain a petition
for certification election covered by that CBA. The
So now, you do not need, it is not required in order to claim bargaining unit covered by that CBA cannot be a subject to
that there is a deadlock, that there is voluntary arbitration, a certification election.
as a result of the deadlock. Or compulsory arbitration.
What's the difference between the two? Voluntary or Exc. During the 60-Day freedom period before the CBA
compulsory arbitration? Compulsory arbitration is any of the expires – the last 60 days of the CBA. It is only during this
justice fora of the labor machinery of the state. Labor time that a petition for certification election may be
arbiter, it can be waived. Deadlocks, Secretary of Labor, it entertained. Before that, the contract bar rule is still in
can assume jurisdiction. Conciliator, mediator, the effect. After the 60 days, the contract bar rule is again in
NCMB...they can help. effect because the CBA now will be in force and in effect
even after it expires. You must file the petition within the
JULY 18 [ LUZ ] 60-day freedom period.

His solution was okay, the two of you – shake hands. There’s Situation 1
the TV there and there’s Joseph Estrada. The president with
the lowest educational attainment – iya na niya gidala ng Suppose, the union and management negotiate the new
duha dira. And his solution is, there will be an impasse for CBA that will take the place of this old CBA during the 60-
10 Years. There will be no strike. It will be the same CBA. day freedom period. And because they understand each
The old CBA will be extended for 10 Years. Because Lucio other, they conclude it very fast. Let’s say in a week’s time,
Tan was ready to close down PAL. Ah di diba, gusto mo ana? there is already a CBA signed and then they register it with
Ah de kulob kaldero ninyo. Wa nay PAL. Things were frozen the BLR. Can that new CBA bar a petition for certification
for 10 Years and that decision, nobody wants to touch. election during the 60-day freedom period? SC says NO it
cannot bar as it is a premature CBA. Sayo ra kaayo nga CBA.
WHY? Because effectively by fiat, the president made the
union SEBA for 10 Years. It was still administering an What happens to this CBA entered into between the
extended CBA for 10 Years. And what is the term of a CBA? incumbent SEBA and Management, which was also ratified
It is 5 Years according to the L. And by the stroke of the by everybody because nakadawat man sila signing bonus?
genius of Joseph Estrada, he just extended it for another 5 What happens if a petition for certification election is filed
Years. and this new labor organization wins as SEBA? Ana ang
management ah di na ko makig bargain nimo kay nahuman
Now, it is not required in order to claim there is a deadlock na man me. Naa na man me ug CBA. You cannot do that.
that there is voluntary arbitration as a result of the deadlock That CBA you entered into with the incumbent who loses in
or compulsory arbitration. a timely filed PCE during the 60-day freedom period, that
will go to waste. That will just be a piece of paper whose
Voluntary Arbitration Compulsory Arbitration destiny is the garbage can. Because the new SEBA will want
to negotiate his own CBA. Hence that is NOT a bar to a PCE.
The parties select who will Is any of the justice fora of
be the particular body or the labor machinery of the Situation 2
person to decide the state such as the LA,
dispute. That is provided SOLE, Conciliator- Suppose a CBA entered into by a SEBA and management is
for in the CBA. Mediator of the NCMB. NOT registered with the BLR. Thus as far as the state is
concerned, they do not know that the CBA exists. And then

16 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
somebody files a PCE and then they will say, naa na man XX disappears. Nawala O.O Ngano nawala man sya? Giduol
SEBA, how can you file? Nahuman na man ang man niya ang management – amigo na man gyud ta, wan a
certification year rule kay it’s been more than 1 Year tay awayan kay ako man nadaug, kanang paminawon ninyo
since the SEBA has been proclaimed as a result of the PCE. among hangyo. Ilang hangyo, kay lima ka tuig man gyud
Wala may CBA? mi na inyong SEBA, iadvance nalang diri namo lump-sum
ang inyong union dues wa na moy problema sa amoa. Di na
Issue – Can an unregistered CBA bar a PCE? Ang tubag me magsamok samok. Ngano dako man kaayo inyong
kung ngano wala man giregister – muingon man ang union kinahanglan? Kay naa me organisor nga mas dako pa sa
ana na di man me gusto muregister ana kay ngano kay inyo doble ani inyong factory. Unya didto me mangampanya
kamo diha sa DOLE you insist that one of the provisions didto na sad me mag SEBA. Kamo unsa man mo diri
must be a no strike clause. Mao man na some of the RD of kinyentos ra ka tao, unsa man mo diri gamay ra mo.
DOLE, they insist that there must be a no strike clause, that
for as long as there is a CBA you must always resort to the Unsa man na – 5 years union dues, ihatag dayon na nnila.
grievance machinery and lodge a complaint. So you commit Unya paghatag nila, sibat dayon si XX. Unya naay mga
not to strike for the duration of the CBA – di man gusto ang complaint ana. Wala nay maminaw sa ilang complaint, wala
Union mupirma ana, so di nalang sila muregister. So, the nay mudala didto sa management. Ngano man ni atong
question is, can the contract bar rule apply? union nga gipili? Unya aning mga trabahante nga nabilin wa
may nahibal-an, maglisud man gani pirma sa ilang ngalan.
RULE: SC says an unregistered CBA can bar a petition for Di n ani makadala ug grievance didto sa management. Wa
certification election provided that it is the source of nay mabuhat ana nila tanan. Suko na kaayo ng union. Ingon
substantial benefits to the members of the CBU. na sila sus – dugay na man diay ni nisibat atong SEBA.
Gipasagdan nalang ta dinhi.
Substantial benefits is benefits such as wages, leaves and
other monetary benefits granted that are appreciably above Mag disaffiliate na ta. Mangita tag lain nga mubarog nato.
the labor standards benefits. Kanang ipaglaban ta. So, mangita silage federation, naa
silay nakitan nga federation. So mag-storya na sila diha, ato
SWEETHEART CONTRACT b ani ilisan ug bago isaligway na ning karaan? Daghan man
sila dili mahibalan – mayo ini mag REFERENDUM ta kung
Kay if it is just labor standards benefits that are granted in kinsa man gyud pabor ani.
the CBA, the terminology for that in labor parlance is that it
is a sweetheart contract. The results of the referendum not in favor of the employer.
Kay ang employer, gihatag na raba niya ang 5-year union
Meaning the employer and the union have fallen in love, to dues. Unsa man ilang buhaton? Naay naghunghung nila,
the detriment of the members and the employees of the studyante nga nakakuha og labor relations, file mo ug
CBU. They just agree on labor standards benefits. Nganong petition for referendum didto sa med-arbiter.
mag negotiate pa man ka nga kanang inyong gisabutan,
that is already yours granted by law. You went through the Ingni ninyo ang med-arbiter, kami mga myembro sa
trouble of organizing, etc. Unya ang imo diay gipirmahan gisalikway nga federasyon, nagduol sa imong opisina.
labor standards ra, minimum wage. That is why the DOLE Muingon dayon ang med-arbiter, this is a PCE – dismissed.
says entering into a sweetheart contract is a clear There is already a SEBA unya unsa man na inyong
unmistakable sign that the union is a company union and referendum. Mao na kailang ninyo basahon ang kaso nga
management has committed ULP. Thus, a sweetheart LITEX v. Eduvala.
contract does not bar a PCE.
Litex v. Eduvala – according to the SC, a referendum is
RULE: An unregistered contract bars a PCE if it provides for not barred because a petition for referendum is no electing
wages and benefits that are clearly above the minimum a SEBA. It is an exercise of the right to self-organization.
wage and the same has been in effect for a considerable It’s a disaffiliation with the previous federation and an
period of time as determined by the SOLE. Thus, it is already affiliation with a new federation. This new federation will
the law between the parties. It has been the source of just take the place of the old federation SEBA and
benefits and the benefits are appreciably higher than administer the existing CBA.
minimum wage.
You go back to your right to SO – the local can disaffiliate
What if Registered? anytime from the federation because the federation is only
an agent vis-ã-vis the local. It is the local that is the real
Thus, it is not necessary that the CBA will be registered. But party-in-interest with respect to the CBA. Kanang feredation
it will be good if it is registered. Because if it is registered, pwede na tangtangon.
because if it is registered, you file a motion to dismiss the
PCE. And you say look, we have this CBA and you can look Unya muana ang management, luh gihatag na raba namo
at your copy because this is a registered copy, thus for as ang dues. Buang buang ka, ngano gihatag na nimo! Sa ato
long as this CBA is in effect, you cannot entertain a PCE. pa gisulsulan na nimo. Kinsa may buang nga muhatag? Wa
man ka gani kahibalo basig mangamatay ta mahigop sa
Situation 3 (REFERENDUM) dako nga sinkhole. Buang buang ka.

Here is a bargaining unit, there is a PCE. Union X wins. Union REFERENDUM

X is a local of Federation XX. After XX wins, all of a sudden
17 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
A referendum is a method of determining whether a Department of Bureau Labor Relations allowing certification
disaffiliation and a subsequent affiliation to a new federation election during a non-working day.
is supported by the majority or an overwhelming majority
of all the members of the union. It has to be absolute Q. What is the purpose of making it in a working day?
majority. A. The purpose is to ensure the presence and participation
of the workers. Nobody wants to be absent during a working
Rationale: Because here, the union has right to protect day, you want to collect your pay so you schedule it in a
themselves. They protect themselves by disaffiliation. working day, then there is a greater chance of people
Remember the rule that even if the constitution and by-laws participating it. If it is non-working day (eg. Sunday or rest
of the federation prohibit disaffiliation of the local except in day), there could be a good chance that people will not show
the 60-day freedom period of the CBA, the local may still up since anyway, they will not be penalized, that is the
disaffiliate at any time. That is the prerogative of the local. purpose.
Because the federation is just an agent of the local.
Section 14- Section 12 of the Rule IX is hereby
JULY 24 [ AMPOG ] renumbered as Section 13 and amended to, read as
follows:
New Implementing Rules, Department Order No. 40-I-
15 (RULE 1: Section 1) for additional terminologies: Section 13. Protest; When Perfected- Any party-in-
interest may file a protest based on the conduct or
a. ABSTENTION: Refers to a blank or unfilled ballot mechanics of the election. Such protests shall be
validly cast by an eligible voter. It is not considered as recorded in the minutes of the election proceedings.
a negative vote. However, it shall be considered a valid Protests not raised immediately after the last ballot
vote for purposes of determining a valid election. cast are deemed waived.

tt. RE-RUN ELECTION: Refers to an election GENERAL RESERVATION TO FILE A PROTEST SHALL BE
conducted to break a tie between contending unions, PROHIBITED. THE PROTESTING PARTY SHALL SPECIFY
including between "No Union" and one of the unions. It THE GROUNDS FOR PROTEST.
shall likewise refer to an election conducted after a
failure of election has been declared by the election The protesting party must formalize its protest with the
officer and/or affirmed by t he mediator-arbiter. Mediator-Arbiter, with specific grounds, arguments and
evidence, within five (5) days after the close of the
ww. SPOILED BALLOT: Refers to a ballot that is torn, election proceedings. If not recorded in the minutes
defaced, or contains markings which can lead another and formalized within the prescribed period, the
to clearly identify the voter who casts such vote. protest shall be deemed dropped.

VALID ELECTION: MAJORITY OF ALL ELIGIBLE PROTEST IN CERTIFICATION ELECTION

VOTERS
So you have a certification election valid when the majority
Valid election means that the majority of all the eligible of the eligible voters participate. During the elections itself,
voters participate. So you take all the eligible voters of the it might be possible that certain voters are questioned.
bargaining unit, divided by two plus one, that is the majority Protests, according to the rule are considered bona fide
of the bargaining unit. If they cast their votes, they protest (protest in good faith):
participated in the election then the election is valid. 1. The matter of the protest must be recorded in
minutes of the election officer.
If you do not have the majority of the voters participating NOTE: The election officer is the
in the certification election, then it is not certification representative of the DOLE that is
election. There is a failure of elections when less than the presiding over the certification election. He
majority of the eligible voters participate in the election, keeps minutes so you have to report it to
then there is no certification election, that is called failure of
the election officer, you must have it
election.
included in the minutes
FAILURE OF ELECTION 2. The election officer will make a tentative resolution
on the protest on what is being
If there is failure of election, you have to set another date questioned/opposed.
for holding the certification election. You do not say Eg. There is a series of five voters showing up in the precinct
"another certification election" because there was an invalid and the election committee refuses to give them ballot
election. So you reset the certification election. because on the allegation that they are not their employees.

The Rule says that the certification election must be The employees then presents their IDs. You might say that
conducted during the working day. IDs are enough to determine. But let's say you are banana
workers and you are working for 8hours, then you are a
Q. Can it be it, by way exception conducted not during a washer in the packing house. So mabasa ka ana, sige ka ug
working day? brush-brush sa banana, naka-plastic lang imung ID niya
A. Yes, if it was agreed by all parties concerned, then that masudlan man gyud na so maglabo na ng imung ID. Mao
might be allowed. There had been decisions of the ng pamaliton sa union na kalaban. Abangan na nila, duolon
18 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
ka tapos abangan imung ID para inig election, lain ilang election, it must be majority valid votes
pagamiton sa ID pasuot sa lain. Mangita sila ug kanawong cast.
tapos maunang ipavote. Guba naman ng nawong so di na 4. Total number of the votes of the union must at least
masuot, niya thumbmark lang. Dili mana machack kay lupig be 50% of the number of votes cast; if not, there
pa ang NBI. can be no majority of valid votes cast in favor of
“no union.”
So, the election officer will make a ruling. So the election
officer, when cannot he cannot decide, they will just
I am emphasizing this because for the first time in the bar
segregate the votes. So so these five people who ware
examination, there were numbers last year. So with that,
voting, I will allow to vote, despite the opposition but their
you need to compute. More than 15 years ago, they dealt
votes will be segregated, it will be kept in a separate
away with that because the deans protested but now, you
envelope.
are being tested for arithmetic. I do not know if the deans
will protest these questions, they might. That is known as
Purpose: It might be that at the end of the canvassing of
run-off elections which is different from rerun elections.
the votes, it might not be necessary to rule upon the
oppisition if the winner by so many votes and these are his
RERUN ELECTIONS
union members being opposed no need anymore because
he already example, won by more than 50 vote, what is five
In the New Implementing Rules, Department Order No. 40-
by then? There will be no need to check that votes, if 5 lang
I-15 (RULE 1: Section 1) for additional terminologies:
tapos 50 votes ang lamang.

That is the procedure, you oppose and then you record it in tt. RERUN: refers to an election conducted to break a
the minutes. After the recording, within 5 days from the tie between contending unions, including between "No
close of the proceedings from the canvassing and Union" and one of the unions. It shall likewise refer to
declaration of highest number of valid votes. You must an election conducted after a failure of election has
formalize that protest in writing within 5 days because been declared by the election officer and/or affirmed
contrary to Omnibus Election Code, election proceedings do by t he mediator-arbiter.
not include Labor Relations in Certification Election.
It is the election officer who will declare that there is a
Q. Who will rule upon that? failure of election and the same must be confirmed by the
A. Election officer. med-arbiter.
Q. Who reviews the action of the election officer?
A. The med-arbiter, where you file your petition for The declaration of the failure of election is equivalent to the
certification election. final canvass of the election. So that is a rerun election.

RUN-OFF ELECTION CONSENT ELECTION

We now know, failure of elections, certification elections Consent election, the correct definition is not the one given
then you have run-off election. Book 5 Rule 1, Sec 1 (i). The correct one the old rules, sec1
(y)
Run-off election is described in Book 5 Rule1, subparagraph
SS [NOTE: But in ChanRobles, it was under Section (z)] (y) "Consent Election" means the election
voluntarily agreed upon by the parties to determine the
issue of majority representation of all the workers in
(z) "Run-Off": refers to an election between the labor the appropriate collective bargaining unit
unions receiving the two (2) higher number of voters
when a certification election which provides for three This definition was taken from the old rules, it is the correct
(3) or more choices results in no choice receiving a definition, not the one given in the latest law.
majority of the valid votes cast, where the total number
of votes for all contending unions is at least fifty For reference, below is the new definition under the new
percent (50%) of the number of votes cast. law:
(i) "Certification Election" or "Consent Election"
There are several requisites: refers to the process of determining through secret
1. Election must be valid (the most important) ballot the sole and exclusive representative of the
2. At least three choices ( eg. 2 unions or 1 no unions; employees in an appropriate bargaining unit for
3 unions and 1 no union) purposes of collective bargaining or negotiation. A
3. None of the choices received the majority of the certification election is ordered by the Department,
valid votes cast. while a consent election is voluntarily agreed upon
by the parties, with or without the intervention by
the Department.
NOTE: The majority basis now is different
from the basis of the valid elections
If you divide the election proceedings of the
(majority of the eligible voters who cast Certification Election:
their ballots, it need not be valid as long as
they participate) But for winning the I. Determination of appropriate bargaining unit.
19 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
raised then those names stand as ____ and those are given
If it is a Petition for Certification Election covering an to the various contending unions so that they can have the
organized establishment, then that first part is settled list during the election day. In each precinct, there is a
very fast, because past history is simply upheld. What representative from the contending union. Murag mga
was the appropriate bargaining unit in the past, candidates ba, naay inspectors, accredited na sila.
continues to remain as the bargaining unit. So it is very
And then instruction is after that is done the med-arbiter
simple.
will decided how many polling places there will be.
II. Exclusion and inclusion proceedings Q: And the ballot… how will the ballot will be arranged?

Who are covered by this bargaining unit the was declared A: If it is organized no problem. Mag una incumbent then
appropriate. the petitioner and then intervenor 1, 2. All the other unions
who want to participate file a motion to intervention. That’s
Unorganized establishment: there will be a lot of debate the pleading you have to file. If you are the first one after
because there are no list to figure yet the petition is filed. Then you will be intervenor 1. Ikatulo
ka diha.
Organized establishment: they can just say that get the
old list of the past election, tapos tan-awon na lang kung 1. Incumbent
kinsa man namatay ani, nagretire, nihawa, niresign etc. The 2. Petitioner
next question would be, kinsa man ang na regular in 3. Intervener 1.
between the time. Tapos ang union, muhatag lang pud ug
list, mao ni sila iapil pa ni nato kay rank and file pa man ni If it is unorganized then number one is the petitioner and
sila tapos muingon ang management na dili na kay naga then the second is the intervenor 1,2,3. Finally the last one
training na na sila for supervisor. So in that event, the med- is no union.
arbiter will make a ruling.
1. Petitioner
You must remember that the management will want to add 2. Intervenor 1
or subtract depending on the stand of the people there. 3. Intervenor 2
Same sa union, mudunggag ug ilang tao ug gusto 4. No Union
tangtangon ang tao kung dili na ilahang tao. Mao man gyud
na. Take note that will be included in the order of the med-
arbiter. He will also order that the ballot will be translated
The med-arbiter must look for an objective criteria to into the vernacular of the place. For example, Kung
support his ruling on whether this voter remains or sagingan sa Gensan, so Ilonggo. Kung Del Norte, bul anon
cancelled. man ang kadaghanan dira, Cebuano/BIsayo na ang ballot.
Muingon ang uban “Ilocano man mi”. Too bad kay ang
You might say that the bigger the number, the more that it lingua franca spoken by most will be the native language on
is complicated. That the lesser the number, the more than which the ballot will be written.
it is simplified.
The voting itself is a proceeding. Then the canvassing. Then
Eg. in Pico which used to reached for 5000 workers. they will make a report. The representatives will be given
Inclusion and exclusion proceeding becomes problematic the final tally wherein they will know in the tally who in the
kay muingon ang management nga nag AWOL mana siya final count got the majority of the valid votes cast if there is
wala naman na siya pila na ka-payroll na wala na siya. one. But then it is the Med arbiter will declare the winner
Tapos ang union, kay ilaha manang tao, muingon, nasakit because when he does so it is an order of self-_____ based
lang to siya tapos layo ang balay, apil gihapon na siya. on the results of the canvassing of the votes.

After that is settled, you post the order of holding the

certification election because the med-arbiter will issue an REFERENDUM
order in which will be posted in two (2) conspicuous places There is another proceeding. This is the proceeding called
in the work place, sometimes the med-arbiter will order that referendum. We have the case of Litex Employees vs
it be posted in several places. Eduvala which has been reiterated by the decided case
Federation of Unions of Rizal vs. Pura Ferrer Calleja; A
JULY 24 [ ALABAN ] Minute Resolution.

What is the purpose? so that anyone of the workers who LITEX EMPLOYEES ASSOCIATION vs. EDUVALA
believes that he should be there can verify. Tanawon niya 79 SCRA 88 | 1977
naa ba ko? Wa man. Wa gani, reklamo sya sa med-arbiter
and then his name is taken up and a ruling will be made or In this certiorari and prohibition proceeding, what is sought
somebody who is no longer there. Pagtan-aw niya “nia pa to be nullified is an order of George A. Eduvala, the then
man akong bana kay ako naman nipuli niya kay namatay Officer-in-Charge of the Bureau of Labor Relations, requiring
sya. Aka na unta ning ngalan ibutang dinhi kay ako nipuli sa that a referendum election be held among the members of
kong bana. Washer ako. Akoy tig brush brush sa saging.” the Litex Employees Association to ascertain their wishes as
The med arbiter has to make ruling. If no questions are to their affiliation with respondent Federation of Free
20 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
Workers. It is the contention of petitioner Union that there However, since it’s new it is not subject to the personal
is no statutory authorization for the holding of such a clauses in the CBA. What are those personal undertakings?
referendum election. Clauses pertaining to the old federation. If it signed a “no
strike” clause, the new federation is not bound by that
In support of the competence of respondent public official, because that is the obligation of the past federation. That
Article 226* of the present Labor Code is cited. is why the SC said the new federation can negotiate but
management is not compelled to negotiate a shortening of
The Director of the Bureau of Labor Relations has authority the CBA.
to order the holding of a referendum election among
members of a labor union to ascertain their wishes as to But if you are management and there is no longer a “no
their affiliation with another labor union. Article 226 of the strike” clause, you do not want it to be hanging in the air
New Labor Code cannot be misread to signify that the and you will want it to be settled on more predictable
authority conferred on the Secretary of Labor and the grounds; so you will probably tell the new federation we will
officials of the Department is limited in character. On the enter into negotiations but we will not substantially change
contrary, even a cursory reading thereof readily yields the the things we agreed upon increases [which are anniversary
conclusion that in the interest of industrial peace and for the increases].
promotion of the salutary constitutional objectives of social
justice and protection to labor, the competence of the Usbon pa na? There can be cosmetic changes. Kamong mga
governmental agencies entrusted with supervision over new federationa aron makaatubang mo sa bag-ong local ug
disputes involving employers and employees as well as makaingon na naa mo nadaug na signing bonus… Pero
“inter-union and intra-union conflicts,” is broad and usbon ba pa na? Muingon ang management na “ayaw na
expansive. lang kay gihaguan naman na. Wait for your time upon
expiration of the CBA.” That is normally what happens. The
*Article 226 read “The Bureau of Labor Relations and the way the union will negotiate is that “kamo man gud inyo
Labor Relations Division in the regional offices of the man ng gipasagdan ang karaang federation. Inyo mang
Department of Labor shall have original and exclusive gipagbigyan… gibaligya na lang nuon ang local.” Mao ng
authority to act, at their own initiation or upon request of masuko gyud ng local kung gibaligya sila sa federation.
either or both parties, on all inter-union and intra-union
conflicts, and all disputes, grievances of problems arising NB: Father did not give the case’s citation but found this
from or affecting labor-management relations in all case entitled BENGUET CONSOLIDATED, INC., vs.BCI
workplaces, whether agricultural or non-agricultural, except EMPLOYEES and WORKERS UNION-PAFLU et al. which had
those arising from the implementation or interpretation of a discussion on substitutionary principle.
collective bargaining agreements which shall be the subject
of grievance procedure and/or voluntary arbitration.” BENGUET CONSOLIDATED, INC., vs.BCI EMPLOYEES
and WORKERS UNION-PAFLU et al.
Q: What is the petition for referendum?
A: When a local decides to disaffiliate form its federation The principle of substitution, formulated by the National
and affiliates with another federation during the effectivity Labor Relations Board, counterpart of our Court of Industrial
of the CBA, that petition is not barred even if there is an Relations, means that where there occurs a shift in
existing CBA because it is not for purposes of certification employees’ union allegiance after the execution of a
election, rather it is to determine whether they will stick to collective bargaining contract with their employer, the
this old federation or have a new federation. Remember employees can change their agent—the labor union, but the
they are talking bout agency. The federation is the agent of collective bargaining contract which in still subsisting,
the local who is the real party in interest in the collective continues to bind the employees up to its expiration date.
bargaining process They may, however, bargain for the shortening of said
expiration date. And the only consideration for the
Q: Who will vote? “substitutionary” doctrine is the employees’ interest in the
A: All the members of the local. They will vote for the old existing bargaining agreement; the agent’s (Union’s)
federation or the new federation. Usually most of the time, interest never enters into the picture
the old federation has committed an unpardonable offense
against its members and they are already through; they The “substitutionary doctrine” provides that the employees
have already given up given. When there is voting, it is to cannot revoke the validly executed collective bargaining
be determined if they will do away with the federation. contract with their employer by the simple expedient of
changing their bargaining agent. The new agent must
Q: What happens if the majority votes for the new respect the contract. The employees, thru their new
federation? bargaining agent, cannot renege on the collective
A: This is when Benguet vs. Benguet Consolidated mines bargaining contract, except to negotiate with management
case becomes applicable. That is the substitutionary for the shortening hereof.
doctrine. The SC has said when there is change in federation
while the CBA is in effect, the new federation simply takes The “Substitutionary doctrine” cannot be invoked to support
the place of the old one. It substitutes the old one. The the claim that a newly certified collective bargaining agent
contract continues and the new federation substitutes the automatically assumes all personal undertakings, such as
old. the no-strike stipulation, assumed by the deposed union.

21 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
To recapitulate, these are the terminologies that you should
EE-ER Those within the BU The EBA, the union
be familiar with:
Relationship must be in EE-ER can have people
• certification election relationship. there who are not
• failure of election necessarily
• rerun election employees when
• run off election they sit down and
• referendum. negotiate the CBA.
For example, the
BARGAINING UNIT VS EXCLUSIVE BARGAINING lawyer of the union
AGENT sit down and
negotiate. He does
Q: What is the distinction between the bargaining unit and
not have EE-ER
exclusive bargaining unit?
relationship with
management and
A:
yet he can
negotiate.
BU EBA

Legal Roles Principal; the Agent; the Who It is suggested by the is determined by the
beneficiary negotiator determines union but in the end, bargaining unit —
the state approves the employees
Legal Is a list of positions; It is a legal by the order. covered — who
personality it is not a legal personality. It is an determines. But
personality; Is not organization. once it does so, it
an organization. cannot change that
choice as a general
Participation? does not participate; The agent rule for 5 years
it has a role only negotiates and although it can
after the negotiation signs but they do change the agent of
is perfected not perform the the EBA. Like the
contract. federation. Kinsa
man ng EBA? Ang
When perfected? It is the bargaining kana man ng union
When the unit — those that at the workplace.
representative of the occupy the positions The local. But they
both sides sign the in the bargaining can have an agent,
CBA. Post perfection unit — that the federation.
there are requisites. performs the
The bargaining unit, contracts and
all the members of receives the JULY 24 [ DELA CERNA ]
the union ratify the benefits that
CBA. Those are the provided for in the EXTRAORDINARY RIGHT TO SELF-ORGANIZATION:
post- CBA. The agent DISAFFILIATION
negotiation/post merely signs. Wala
perfection syay labot.
Now what is important to point out is if there is a
requirement. We will
disaffiliation and it is by an overwhelming majority of the
take that up in
bargaining unit then that is the extraordinary exercise of the
collective barganing.
right to self-organization by the employees covered by the
appropriate bargaining unit. But if it turns out that it is not
the majority, that it is just a few minor employees, what
happens? The incumbent federation may invoke the union
security clause of there is one, namely, the continued
membership in the union is a condition for continued
employment and they will prosecute these rebellious union
members and charge them with disloyalty.

And after they are expelled, they will go to management

and they will say, “on the strength of the union security
clause we are asking that they be terminated.” Pareha
gyapon na sa actual politics/political arena. If you have the
overwhelming support of the people, then they will say
sovereignty resides in the people and therefore you are out.
Marcos out. Joseph Estrada out. If you do not have the
overwhelming support of the majority, what happens?
22 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
Rebellion ka, priso ka. Kay NPA ka man, wa man kay that does not have the full 25% of the bargaining unit
support. That is the same thing in how a bargaining unit signature support? Lets say 10% ra, can he still grant? He
operates. has the discretion to grant or not to grant. Pag 25%, he no
longer has discretion but to grant the petition. That is the
DISCRETION OF MED-ARBITER rule. The first one to file only has 10% signature support of
the bargaining unit. The 1st intervenor, another 10%. 2nd
As to discretion of the Labor Med-Arbiter, this discretion is intervenor has 5%. Total of 25%. No more. He no longer
distinguished if he is ruling in case of organized has discretion to deny the petition. There is already
establishment and unorganized establishment. substantial doubt as to the representation status of the
incumbent.
DISCRETION OF MED-ARBITER IN AN
UNORGANIZED ESTABLISHMENT SUMMARY
No discretion; MUST grant
25% Signature Support
In an unorganized establishment, the policy of automatic petition
certification election is more blanket. When a petition is HAS discretion to grant or
Less than 25%
filed, it is not expected that there will be signature support. not
If the one year certification rule does not apply, he has to
grant the certification election the moment that there is a
petition that is filed. He has already set the date for the PUBLIC SECTOR
election and then there is a pahabol. There is an intervenor
that comes in and files a motion for intervention. He wants Remember, the rule with respect to the public sector is
to be included in the ballot. different. In the public sector, when you register the union
of the employees unit, if you are the only one, it does not
Can he still allow and what is the basis of his allowance? matter if you have signature support or not. If you are the
This time he can demand signature support because he has only one, you can be appointed as sole and exclusive
already set a date for election. And he might say that he is bargaining agent. Why is it easier in the public sector than
just a nuisance candidate, “Nakadungog ra ka na naay in the private sector? Because in the public sector, there is
election dinha nga mufile kag motion for intervention. really no bargaining that happens. You do not bargain over
Galangan-langan ka aning proces. Show me your members” salaries. You are not bargaining in the real sense of the
word. This is why it is easier to be the sole and exclusive
The law now says a petition for certification election need bargaining representative.
not contain the list officers or signature support in
UNORGANIZED establishments. Can the med arbiter still
COLLECTIVE BARGAINING
require that he change his set election date? The Supreme
Court has not yet ruled on that issue. But the issue has been
ruled before that he can demand. You have to understand this as a sui juris contract (he must
mean sui generis because sui juris=of his or her own right
My take is, it could still be the rule because it will no longer which means possessing full rights; sui generis=one of a
hurt revealing yourself when there are already other unions kind) as different from all other contracts. The one who
that have been known to have filed the petition and that agrees in writing is not the one who will perform the
means there is already a pronounced movement for union obligation or who is bound and yet his name is there.
representation in the bargaining unit. Di na pareho kung
ikaw gyud una nifile tas pangutan-on ka sa management, That is the irony of it. Bending the rules and principles of
“Kinsa may nangulo ani?” Ang dangerous kay katong una contracts: the principle of mutuality [which means] parties
nga nifile. Ang sunod di na kaayo. That is my take. I don’t are bound by the contract in the same manner as to bind
know, the SC may rule otherwise. themselves both to the obligations and rights in the
contract.
DISCRETION OF MEDARBITER IN AN ORGANIZED You cannot say, “I am bound but you’re more bound than
ESTABLISHMENT me.” You are equally bound. But the union is not equally
bound, it is the bargaining unit who performs the obligations
Once there is an incumbent, it’s very difficult to unseat an and receives the benefits. On the part of management,
incumbent. You just have a corridor of 60 days. Before that, management not only has the contract but it has managerial
you cannot file, after that you cannot file. Only within that prerogatives. Who owns the business? [It is] the
60 day period. And then, to make sure that the Med-Arbiter management, the employer.
has doubt as to the continuing representation of the
majority by the incumbent, the petition now must have 25% Because he owns it, he has possession of it. So if he does
signature support of the majority. Sa ato pa naa syay 1/4. not like the employee, he can say “get out!” technically
speaking but there is the Labor Code that says you cannot
Nabutngan na ug question mark ang representation status do that. That is what limits the prerogatives of ownership.
sa incumbent. By that time, the med arbiter has no Jus possidendi (right of possession). The constitution says
discretion but to grant the petition (if 25% at least). The the employee has the right to share in the fruits of the
incumbent is automatically a candidate. The forced profits of a business enterprise. That limits the jus fruendi
intervenor, the petitioner, opens up the whole thing. Can (right to the fruits) of the owner. Jus utendi (the right to
the med arbiter still grant a petition for certification election
23 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
use). Jus disponendi (right to dispose)--management might Redundancy: Exists where the services of an employee are
dispose of it. in excess of what is reasonably required by the enterprise,
i.e., a position is redundant when it is superfluous to the
When you took up termination in labor standards, when the business. This may be caused by a number of reasons like
employer disposes of the business and sells it to another, previous overhiring or a decreased volume of business or
that’s when you must have some understanding of some restructuring or reorganization. There must be good faith
corporation law. The employer is a juridical person. That and fair & reasonable criteria as to what positions are
means there are shareholders. Normally when there is a declared to be redundant.
change of ownership in the corporation, it’s just
shareholders. Story: There is a very interesting story which is peculiar to
Davao. BPI all over the Philippines is not organized, it’s only
The moment you have 50% plus 1 of the outstanding in Davao. Davao kutob sa Panabo ug Tagum. The whole
shares/voting shares, then you control it. Let us say before Philippines is not organized. It so happened that BPI bought
it was Ayala [but] because Ayala sold these controlling FEPTC. Can you still remember that bank in San Pedro in JP
shares it is now San Miguel Corporation. That is what Laurel? Far East Bank company na na karun. Then the
happened to Pure Foods. But under the Labor Code it is the people there dili gusto’g union. Ingon ang mga taga BPI,
same employer. It is Pure Foods but the one who controls it “Karun naapil namo sa BPI, kailangan union mo, apil namo
now is different. sa union. You must pay union dues, if not union dues,
agency fees because you will be receiving the same benefits
Unless it is this entire corporation that is acquired or spun we are receiving.” Nadugay ang kaso tua naabot sa
off into another entity then there is actually no change of Supreme Court. It was a Davaeño who decided the case,
ownership. If muingon ang bag-ong tag iya, “di nako gusto Justice Carpio. Normally, the one who will write the majority
nimo pahawa diha”, it’s the same thing. it’s the employer decision will be the Labor authority in the Court if it is an en
who is driving you off. He must either compensate you or banc decision. And the Labor Authority at that time is Justice
justify it according to what is provided in the Labor Code. If Brion who used to be Secretary of Labor. But the Court did
it is retrenchment then he must prove that it is actually due not agree with him because he said there is no obligation
to impending loss or actual loss. for these Far East Bank employees to be part of the union.
The union cannot force them on the argument that they
There is separation pay. The separation pay is less than if it have joined the bargaining unit. Usa ra man ang bargaining
were redundancy because redundancy does not involve loss unit. Tanang branch sa BPI isa ra ang bargaining unit. If you
(confusing sentence by Father but in other words: do not want to be part of the union, you pay agency fees
Separation pay is bigger if it is redundancy than when it is but there is no escaping the payment of agency fees. What
retrenchment. is the argument of Brion? He says you might be now
absorbed in the bargaining unit but before that, at the time
Redundancy= 1 month salary or or 1 month salary for every you are absorbed, you cannot be divested of your security
year of service whichever is higher while retrenchment=1 of tenure which has vested even before you were absorbed.
month pay or at least 1/2 month pay for every year of Regular ka ba. And that is a cardinal right which stands on
service whichever is higher). So if the employer does not equal footing with the right to self-organization. Di na sila
want you to participate in his possession of the undertaking mapugos. If pugson nimo under pain of being separated,
then what happens is you have to follow the Labor Code; you are violating their security of tenure. That is the
it’s not just the prerogative of management argument of Brion. Very interesting, you read that case.
Duha na. Decision then resolution. Ang nipalit, unionized.
REVIEW of Labor Standards (just in case) Ang dili gipalit, dili unionized. Balihon nako ha. Ang nipalit,
dili unionized, ang gipalit unionized. What is the result? Mas
Retrenchment (Art 297 formerly 282): “…an act of the dako kag problema kay mas dako mani. If Far East Bank
employer of dismissing employees because of losses in the was the one unionized and BPI and all the branches were
operation of a business, lack of work, and considerable not unionized, you go into Corporation Law. Corporation
reduction on the volume of his business, a right consistently Law says when there is a merger, the surviving corporation
recognized and affirmed by the Court (Arabit v. Jardine or the new corporation in case of consolidation assumes all
Pacific Finance, GR 181719, April 27, 2014). the liabilities and exercises all the prerogatives of the
constituent corporation. So it’s not very helpful.
Elements of retrenchment:
BANK OF THE PHILIPPINE ISLANDS, Petitioner,
(1) Losses incurred are substantial and not de minimis; vs.
BPI EMPLOYEES UNION-DAVAO CHAPTER-
(2) Losses are actual or reasonably imminent; FEDERATION OF UNIONS IN BPI
UNIBANK, Respondent
(3) Retrenchment is reasonably necessary and is likely to
RESOLUTION
be effective in preventing expected losses;
G.R. No. 164301. October 19, 2011
(4) The alleged losses, if already incurred, or the expected Leonardo-De Castro, J.
imminent losses sought to be forestalled, are proven by
sufficient and convincing evidence (Sanoh Fulton v. “In the present incident, petitioner Bank of the
Taghoy, GR 187214, August 14, 2013). Philippine Islands (BPI) moves for reconsideration of
our Decision dated August 10, 2010, holding that
former employees of the Far East Bank and Trust
24 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
Company (FEBTC) "absorbed" by BPI pursuant to the their absorption by petitioner. This fact would not
two banks’ merger in 2000 were covered by the Union remove them from the scope of the phrase "new
Shop Clause in the then existing collective bargaining employees" as contemplated in the Union Shop Clause
agreement (CBA) of BPI with respondent BPI of the CBA, contrary to petitioner's insistence that the
Employees Union-Davao Chapter-Federation of Unions term "new employees" only refers to those who are
in BPI Unibank (the Union).” initially hired as non-regular employees for possible
regular employment.
Issue: The bone of contention between the parties was
whether or not the "absorbed" FEBTC employees fell The Union Shop Clause in the CBA simply states that
within the definition of "new employees" under the "new employees" who during the effectivity of the CBA
Union Shop Clause, such that they may be required to "may be regularly employed" by the Bank must join the
join respondent union and if they fail to do so, the Union union within thirty (30) days from their regularization.
may request BPI to terminate their employment. There is nothing in the said clause that limits its
application to only new employees who possess non-
Held: Taking a second look on this point, we have come regular status, meaning probationary status, at the
to agree with Justice Brion’s view that it is more in start of their employment. Petitioner likewise failed to
keeping with the dictates of social justice and the State point to any provision in the CBA expressly excluding
policy of according full protection to labor to deem from the Union Shop Clause new employees who are
employment contracts as automatically assumed by the "absorbed" as regular employees from the beginning of
surviving corporation in a merger, even in the absence their employment. What is indubitable from the Union
of an express stipulation in the articles of merger or the Shop Clause is that upon the effectivity of the CBA,
merger plan. In his dissenting opinion, Justice Brion petitioner's new regular employees (regardless of the
reasoned that: manner by which they became employees of BPI) are
required to join the Union as a condition of their
“To my mind, due consideration of Section 80 of the continued employment.
Corporation Code, the constitutionally declared
policies on work, labor and employment, and the JULY 24 [ MANLIGOY ]
specific FEBTC-BPI situation — i.e., a merger with
complete "body and soul" transfer of all that FEBTC The surviving corporation or the new corporation in case of
embodied and possessed and where both consolidation, assumes all the liabilities and exercises all the
participating banks were willing (albeit by deed, not prerogatives of the constituent corporation. So, it’s not very
by their written agreement) to provide for the affected helpful. Keep that at the back of your minds because that is
human resources by recognizing continuity of really one of the finer points of labor.
employment — should point this Court to a
declaration that in a complete merger situation where A collective bargaining agreement is interesting because in
there is total takeover by one corporation over a sense for the sake of union’s collective strength, the rights
another and there is silence in the merger agreement of individuals are renders subordinate to the collective. In
on what the fate of the human resource complement the votation, you lose then you go to the collection. You can
shall be, the latter should not be left in legal limbo no longer bargain for yourself. It is the representative of the
and should be properly provided for, by compelling majority. Not even the majority but a representative of the
the surviving entity to absorb these employees. This majority that bargains for you.
is what Section 80 of the Corporation Code
commands, as the surviving corporation has the legal Now, in the US, whatever the majority decides, that binds
obligation to assume all the obligations and liabilities them but the minority are not bound because they are
of the merged constituent corporation.” entities in their own right. So, part of their assertion of this
right is tied to their continued employment. Therefore, it is
Notwithstanding this concession, we find no reason to their right to work that is involved. That is why there is this
reverse our previous pronouncement that the absorbed right to work laws which has just been strengthened
FEBTC employees are covered by the Union Shop because late last year, the US Supreme Court came out with
Clause. a ruling, JANUS ruling.

Even in our August 10, 2010 Decision, we already The complainant is Janus and he is a public employee and
observed that the legal fiction in the law on mergers he is saying that “I do not agree to the application of my
(that the surviving corporation continues the corporate union dues to certain expenses of the union.” In the US, the
existence of the non-surviving corporation) is mainly a unions can contribute to illegal causes. Your union dues are
tool to adjudicate the rights and obligations between divided into the different expenses of the union. Some of
and among the merged corporations and the persons those expenses go toward contributing to party causes; the
that deal with them. Such a legal fiction cannot be causes of democrats some of which are equal employment
unduly extended to an interpretation of a Union Shop opportunities like the law that upholds same sex marriages,
Clause so as to defeat its purpose under labor law. the law that upholds immigration that is obligatory based on
Hence, we stated in the Decision that: refugee status. In the US, you can go to the border, and
then you say I am running away from persecution and I am
In any event, it is of no moment that the former FEBTC applying for immigration on that ground. So you can no
employees retained the regular status that they longer be given up.
possessed while working for their former employer upon
25 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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You can stay in the US pending the investigation and unionization. Magsabot man ang tanan auto workers, kinsa
verification of your reason for going to the US. So Trump is man ang unahon nato? Ford? GM? Etc. That’s their style. In
not entirely correct when he says that these people are the end, that has now defeated the car industry in the US.
illegals. The law says you can apply right at the border. Pag
nakatabok na gani ka sa border, magclaim ka ug refugee Kinsa naman ang pinaka-dak an run? Toyota. And soon,
status ka and then prima facie you can present proof. Ang Toyota will disappear. Why? Because the biggest car market
uban nagadala naman ug death certificate sa ilang bana, is China. It is China that has the biggest car market than
the accounts of the death of their husband. The court will the US. And then, that is the success of the unions in the
grant you. automotive industry raised the cost of the automotive
industry which ultimately (?) their defeat. Toyota is made
In Miami, gikan ka sa Cuba, mulukso ka diha sa bangka or all over the world.
ship na nagdala nimo, makatugdo na gani ka sa shore or
yuta bah, bisan naa pa gani ka sa tubig, dili naka mahimong The worst that is happening in collective bargaining in the
pabalikon kay refugee status man ka. Then you will apply US is in the public sector. Precisely because those who make
for refugee status. Kinsa’y naga-suporta ana? It’s all sorts the decision will not be around to suffer the consequences
of contributors foremost of which is the union. According to of their concessions made in collective bargaining.
this Janus, I am not a union member. I am just in the Kadaghang na-bankrupt na cities like New York. The only
bargaining unit. I am made to contribute the equivalent of thing that protected New York from bankruptcy was federal
union dues agency fee and my agency fee is used to further assistance because they cannot afford that the city that
causes that I myself do not believe. That is a violation of my never sleeps, etc will go bankrupt. Again, this is because of
political rights. So I should not be made to forcibly collective bargaining. And the ones who decided are just
contribute. temporary stewards of public funds and ultimately the one
who will suffer are the taxpayers. You have to provide for
25 years ago, napildi ng (?), you are now in a bargaining the benefits that are given in collective bargaining.
unit. You must contribute in the union regardless of what
the union are applied to. You are just a minority. Mao na You go through the Labor code and look for the collective
ang kaso ni Ica(?) 25 years ago. bargaining brochures. When is there collective bargaining?
There are about six (6) provisions in the Labor Code that
Karon, reversed. Mao na nga naay right to work laws. mandates collective bargaining because the SC has said,
Muingon gani ka I do not agree, then no union can stand. collective bargaining as a process does not end with
Mao na ang why. This guy, Janus, was a government collective bargaining agreement. It continues.
employee.
So, that’s again another exception to the principles of
Now, if you vote to ratify the CBA, there is agreement on contract. One of the principles of contract is found in you
your part. If you did not vote, you did not agree. There’s no remedial law under the Rules of Court in the conclusive
meeting of minds and yet you are bound by the CBA. You presumptions:
see? That is stretching the principles of contract.
When the terms of an agreement have been reduced into
When the parties do not agree, there’s a deadlock, the State writing, there shall be no evidence accepted as to what is
can come in and the state will decide what should be in the contained in that agreement except that which is found in
CBA and the State will say, here is the CBA, now, sign it. the four corners of the agreement.
That again is stretching the terminology in law on
agreement. That is the Parole Evidence Rule. You have taken that up in
Evidence. What is the reason for that rule? The reason for
Is there agreement? There is actually compulsion not an that Rule is if you did not have that rule, then nobody will
agreement. So, you must know the difference because not go to an agreement because you can still go somewhere and
all contracts are like that. In fact, it is sui juris. This is what say “Mao mania tong gikasabutan”. Dili diba? Ang atoang
makes CBA different. What justifies it? The SC says, the gikasabutan kay kanang naa diha.
employee single, solitary by himself, does not stand on
equal footing with the employer. So, there must be strength Now, you will find out in collective bargaining agreement
in numbers, putting them together as one so that they can that if the employer, even if he is erroneous, does
bargain on equal footing with the employer. That is the something which is not mandated or against what is there
whole idea. in the CBA but what he does is in favor of the employee,
then that will stand. Ang increase na gibutang diha is only
The most successful unions in the US has been the 1,000 additional to the monthly pay of the employee pero
FOTON(?) workers’ union. Their product is the most ang iyang nahatag kay 1,200, that is the new law. It’s not
expensive cars and cars are the summation of the (?) of what is contained in the agreement. What you have done,
science of a particular (?). Naa diha’y electrical, mechanical, even if it’s a mistake, but because you have done it for a
computer, artificial intelligence, etc. That is now the testing considerable period of time, that which you have done has
ground for artificial intelligence. Now, it’s possible just to given rise to a new rate.
bring it down to the affordability of consumer, that is the
issue pero it can already be done. It’s no longer a dream Now, the more you can see differences in the principles of
but a reality. That’s why a car is really symbolic. Mao na contract and collective bargaining, the more you can
dagkong sweldo sa nagabuhat ug cars kay dako man ug understand what collective bargaining is. I will not
margin. Now, it’s the most successful industry in terms of
26 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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discourage you but tanawa jud ug maayo. You will are so good at English, you want to be Shakespearean.
remember Contracts and Collective Bargaining. *Father Gus recites how Shakespeare lines*

JULY 25 [ ESTREMOS ] There are some Supreme Court Justices who feel
Shakespearean. And they write as if they are
COLLECTIVE BARGAINING Shakespearean. One of those is Justice Enrique Fernando.
He says “the labor union, when it is supposed to be the
Today, we begin our discussion with Collective Bargaining: haven of refuge of the worker, can sometimes turn out to
1. as a right; and be a villainous oppressor of the worker itself.” Haven of
2. as a duty. refuge, unsa man na? Double doble! It’s already a haven,
and it is still a refuge. Taguaan na kapasilungan. That is
When it is said that collective bargaining is a duty, you refer Enrique Fernando. Nanundog lang na siya kay Shakespeare.
to management. You do not refer to the union. *Father Gus recites again more Shakespearean lines*

When you say collective bargaining is a right, you refer to DUTY TO BARGAIN
the union. And that is because in a collective bargaining
agreement or negotiation, management is a proactive Let us go to the 5 instances where the Labor Code says the
party. The union is only a reactive party. Ang mag una, said duty to bargain.
management gud. Kay ngano man? Way may trabaho kung
way management. It normally starts an enterprise or a 1. The first one is Article 124 of the Labor Code.
business where there are no employees. Magsugod sila ug
employees, pero kahuman, mahimo silag employer. Unya Article 124. Standards/Criteria for minimum
manguha silag employees. wage fixing. The regional minimum wages to be
established by the Regional Board shall be as nearly
Mag cooperative ka, magsugod ta ug business. Sa adequate as is economically feasible to maintain the
sinugdanan, light-minded individuals, but then, once you minimum standards of living necessary for the health,
start an enterprise, you begin to act as employers. That is efficiency and general well-being of the employees
the hard truth. And that is not emphasized in many within the framework of the national economic and
commentators of the Labor Code. Active man ang employer. social development program. In the determination of
such regional minimum wages, the Regional Board
There is no such thing as Breach of CBA. If it is a contract, shall, among other relevant factors, consider the
if a contract is violated, what happens? It’s called a Breach following:
of Contract. Forget about that terminology. If you use that  The demand for living wages;
terminology, I swear to God, you will flunk in this class =((.  Wage adjustment vis-à-vis the consumer price
Because you do not know you are speaking about. You see, index;
Breach of CBA, there is no such thing! There is a grievance  The cost of living and changes or increases
of a CBA, but there is no breach. therein;
 The needs of workers and their families;
Why? For example, there is a CBA. An employee is late, one  The need to induce industries to invest in the
day, then two days, then three days, until he is late for five countryside;
days. What does the employer do? Mu ingon kag, “Let’s look  Improvements in standards of living;
at the CBA!” Is that will the employer do? No. The employer  The prevailing wage levels;
will say, “He’s suspended! Investigate him!” After the  Fair return of the capital invested and capacity to
investigation, the employer will say, “he’s fired!” Then the pay of employers;
employee will say, “there is a grievance” because the CBA  Effects on employment generation and family
is violated. The employer is not confined to the CBA. The income; and
employer has other remedies – jus possidendi, jus fruendi,  The equitable distribution of income and wealth
jus utendi, jus disponendi – he has all that, managerial along the imperatives of economic and social
prerogative. He will resort first to managerial prerogatives, development.
and then the CBA. Is this covered by the CBA?
The wages prescribed in accordance with the provisions
Review: of this Title shall be the standard prevailing minimum
 Jus possideni – the right to possess wages in every region. These wages shall include
 Jus fruendi – the right to the fruits wages varying with industries, provinces or localities if
 Jus utendi – the right to use in the judgment of the Regional Board, conditions make
 Jus disponendi – the right to dispose such local differentiation proper and necessary to
effectuate the purpose of this Title.
So, there is no such thing as a breach of a CBA. Makakita
gani ko ana sa komentaryo, wa na sya kabalo sa iyang Any person, company, corporation, partnership or any
gisulti. He does not realize the nature and the unique other entity engaged in business shall file and register
character of the CBA. annually with the appropriate Regional Board,
Commission and the National Statistics Office, an
By the way, there is no such terminology as most unique. itemized listing of their labor component, specifying the
Unique is already unique, one of the kind. You cannot make names of their workers and employees below the
it more superlative. You do not know your English. Or you managerial level, including learners, apprentices and
27 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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disabled/handicapped workers who were hired under distortion, no matter how severe, can never be a ground for
the terms prescribed in the employment contracts, and declaring a strike.
their corresponding salaries and wages.
So, you have to negotiate. Management must negotiate.
Where the application of any prescribed wage increase The union must negotiate how to remedy, resolve wage
by virtue of a law or wage order issued by any Regional distortion. That’s the first duty to bargain.
Board results in distortions of the wage structure within
an establishment, the employer and the union shall Who will invoke the duty when there is wage
negotiate to correct the distortions. Any dispute distortion?
arising from wage distortions shall be resolved through
the grievance procedure under their collective Ingon ka sa management, “Let us negotiate!” Dili ang
bargaining agreement and, if it remains unresolved, management. Because as long as it is unresolved, there is
through voluntary arbitration. Unless otherwise agreed no out of the pocket expenditure on management. So
by the parties in writing, such dispute shall be decided management will never try to resolve a wage distortion.
by the voluntary arbitrators within ten (10) calendar
days from the time said dispute was referred to You remember what a wage distortion is?
voluntary arbitration.
First, there is a hierarchy of salaries of different groups of
In cases where there are no collective agreements or employees. Why is there a hierarchy? Because not all men
recognized labor unions, the employers and workers and women are created equal. That is the reason why there
shall endeavor to correct such distortions. Any dispute is inequality in the world, because not all are created equal.
arising therefrom shall be settled through the National Some are bright, some are not so bright, and some have no
Conciliation and Mediation Board and, if it remains brains! And so on. You can list all the different qualities and
unresolved after ten (10) calendar days of conciliation, skills in life. So if the starting point is not equal, it just
shall be referred to the appropriate branch of the stands to reason that you should not expect equality in the
National Labor Relations Commission (NLRC). It shall end. Mag lumba ug dagan, bisan kanang mga bata, mag
be mandatory for the NLRC to conduct continuous expect ba ka sa na tanan mag abot didto at the same time?
hearings and decide the dispute within twenty (20) Unsa na, billiard?
calendar days from the time said dispute is submitted
for compulsory arbitration. I am not for inequality. Believe me, I am not for it. I’m not
justifying it. I am stating a fact. And it is not a false news.
The pendency of a dispute arising from a wage It is the news that you and I were born to.
distortion shall not in any way delay the applicability of
any increase in prescribed wage rates pursuant to the That is why there is a salary scale, normally, because people
provisions of law or wage order. have different abilities, different qualifications, different
experience, and different speed at achieving the same
As used herein, a wage distortion shall mean a situation thing. Sastre ka, or dispugador, pila man ka buho sa
where an increase in prescribed wage rates results in butones ang imong madispuga? Ambot kabalo ba mo unsay
the elimination or severe contraction of intentional dispuga. Kanang ganing mata sa butones, tahi tahion man
quantitative differences in wage or salary rates na. Niadto, kamot ra na. Karon, makina na. Before, people
between and among employee groups in an were paid per eye that they completed. Naay uban, expert
establishment as to effectively obliterate the kaayo, mag taghoy-taghoy pa mag sigeg binuhat ana,
distinctions embodied in such wage structure based on masking wala pay ngipon. Naay uban, masking unsaon mag
skills, length of service, or other logical bases of concentrate, dugay kayo mahuman. What is that a function
differentiation. of? That is a function of God-given skill and talent. That is
why there is a hierarchy.
All workers paid by result, including those who are paid
on piecework, takay, pakyaw or task basis, shall Now, when there is a hierarchy of salaries and wages, and
receive not less than the prescribed wage rates per then there is a wage order, and the wage order raises the
eight (8) hours of work a day, or a proportion thereof minimum wages, and it applies only, not to all, one or two
for working less than eight (8) hours. in the hierarchy, what happens? There would distortion,
wage distortion. Ang probationary, P300. Ang regular, P400
All recognized learnership and apprenticeship ang kada adlaw. Welder. Wage order. From 300, it is now
agreements shall be considered automatically modified raised to 350. Covered ba ang regular? Dili. Kay 400 man
insofar as their wage clauses are concerned to reflect mo. Complain sila! “Ni adto, 100 among diperensya. Karon,
the prescribed wage rates. (As amended by Republic 50 nalang.” Distortion na! Because there is a wage order.
Act No. 6727, June 9, 1989) That is the third element. And it applies only to, not
everybody. That’s why there is a distortion. All those are the
What is that? “x x x the employer and the union shall essential elements.
negotiate to correct the distortions.” That is wage distortion.
Suppose the employer says, “to solve the wage distortion,
Take note the case of IBM v. NLRC. IBM - Ilaw at Buklod naa namay diperensya. 100 man tong kiniadto, karon 50
ng Manggagawa-KMU, mao ang buot pasabot ng IBM. Ingon nalang sa probationary, buhaton ko nalang ning regular.
ang Supreme Court, because it states in Art. 124 that you Puros nalang regular.” Suko ang mga regular. Correct ba
have to negotiate whenever there is wage distortions, wage na? The Supreme Court says correct!!! You can solve a wage
28 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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distortion that way. Why? Because it is your prerogative to
create the hierarchy. If you can create it, you can also Tan-awa ragyud, balik-balika ra gyud.
abolish it. If there used to be a difference between That is called in Philosophy a "tautology." When there is a
probationary and regular, tang tangon na nimo. subject and the predicate does not improve on the subject.
If you go through the ordinary language of Philosophers,
Now, suppose you have the hierarchy, the difference that is a meaningless statement.
between the probationary and regular is P100 a day. Unya,
ang imong mga regular, nanagan naman, gi recruit sa Abu Article 261 is a superfluous "duty to bargain" provision.
Dhabi. Wa may nabilin nimo na regular. Gibuhat nimo
katunga sa imong probationary na regular. Ang katunga, Article 262 is the third.
nabilin. Naay wage order. Ang wage order does not affect Note: Father says Article 262 but when he read the
anybody there. Way mu apply for probationary. Why? Mubo provision, it falls under Article 263 in the Labor Code (2017).
ra imong sweldo. Mas dako pa ilang makuha mangadto sila
abroad. So you adjust your entry-level salary. Instead of ART. 263 [252]. Meaning of Duty to Bargain
300, you make it 380. So P20 nalang ang diperensya sa Collectively
regular na 400. Is that wage distortion? That is not wage
distortion, because there is no wage order. Wa may wage The duty to bargain collectively means the
order. That is employer prerogative! You cannot say, performance of a mutual obligation to meet and
therefore we must negotiate. Nigamay man diay dipirensya convene promptly and expeditiously in good faith for
namo. Niadto 100, karon 20 nalang. The Supreme Court has the purpose of negotiating an agreement with respect
said that is not wage distortion. to wages, hours of work and all other terms and
conditions of employment including proposals for
And there are several cases with respect to wage distortion. adjusting any grievances or questions arising under
You have to know that that is one of the mandatory duty to such agreements and executing a contract
bargain. incorporating such agreements if requested by either
party but such duty does not compel any party to agree
Remember, there is a union and there is an employer. That to a proposal or to make any concession.
is a unionized establishment, unionized setting. If it is not a
unionized setting, your remedy is NCLB. And if the NCLB This is the duty to bargain during the negotiation phase of
cannot get the parties to settle, then somebody will file a collective bargaining.
wage distortion complaint with the Labor Arbiter.
Collective bargaining as a process:
2. The second duty to bargain provision is Article 251
of the Labor Code. 1. Negotiation Phase
2. Administration Phase
Article 251. Duty to bargain collectively in the 3. Re-negotiation Phase
absence of collective bargaining agreements. In
the absence of an agreement or other voluntary First Stage: Negotiation
arrangement providing for a more expeditious manner
of collective bargaining, it shall be the duty of employer This is the first stage - negotiating a CBA. There are three
and the representatives of the employees to bargain (3) positive elements in the duty; there are two (2) negative
collectively in accordance with the provisions of this elements in the duty.
Code.
The three (3) positive elements:
Read it and despair! Read that provision. Tell me what it is
telling. What is it telling you? a. To meet promptly and expeditiously

“In the absence of an agreement or other voluntary Behavioral. Mutunga ka ba dinha aron pagsabot-sabot.
arrangement providing for a more expeditious manner of
collective bargaining, it shall be the duty of employer and Promptly - dili kay ang schedule 10AM, mutunga ka ting
the representatives of the employees to bargain collectively paniudto na. That's very easy to verify because it is
in accordance with the provisions of this Code.” behavioral. If the agreement is 10AM, you should be there
by 10AM, promptly and expeditiously. Sala na na kung dili
Tells you nothing! It begins from zero and goes back to zero. ka mutunga. Pero paminawa ko, ingon ang Supreme Court
Because the alternative is to just drop out this entire na kung mu-complain gani ka na management did not show
provision after they have renumbered the Labor Code. up promptly and expeditiously, after the CBA has already
signed, that complaint is moot and academic. The
If there is no collective bargaining agreement, the duty to completion of the CBA belies failure to meet promptly and
bargain of the employer and employee is defined in the expeditiously.
Labor Code. Where is it defined? In no place. So there is no
duty to bargain. Ila nalang gi ingon. Wa man sila. Mag complain ka, file ug kaso dayon for unfair labor practice
– refusal to bargain. Pag dili gani ka mag file ug kaso, sige
Tan awa ra gud. Balik-balika pa gud. ka gyapon ing-anaon (na dili mutunga ang management on
time). Pero pag naa na mo'y ma sign na agreement, wala
JULY 25 [ PAULMA ] na, too late - moot and academic.
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of Kiok Loy v NLRC 141 SCRA 179, and you will see the
b. In good faith extraordinary powers of the court.

Isn't good faith presumed? What do you begin with - bad KIOK LOY v NLRC
faith?! You begin with good faith. Muingon gani siya, "mag GR L-54334, January 22, 1986 141 SCRA 179
bargaining ta", in good faith na. You presume. The party
who claims the opposite, on him lies the burden of proof. Facts: In a certification election, the Pambansang
That is why we have several cases of bad faith bargaining. Kilusang Paggawa (Union for short), a legitimate late
Good faith, remember, is presumed. But although labor federation, won and was subsequently certified by
presumed, there is such a thing as the shifting of the burden the Bureau of Labor Relations as the sole and exclusive
of proof. Sige mo ug negotiate, muabot na ug napulo ka bargaining agent of the rank-and-file employees of
bulan, sige lang mo'g tagbo, asa man ang CBA? Wala! Walay Sweden Ice Cream Plant (Company for short).
CBA. Is that in good faith?
Thereafter, and more specifically on December 7, 1978,
Pareha ra na sa what is presumed - impotency or potency? the Union furnished the Company with two copies of its
Father discusses further about potency being presumed. If proposed collective bargaining agreement. At the same
3 years of cohabitation and virgin pa rin ang woman, it is time, it requested the Company for its counter
now upon the man to prove that he is potent. proposals. Eliciting no response to the aforesaid
request, the Union again wrote the Company reiterating
The burden of proof shifts. That is what people forget in the its request for collective bargaining negotiations and for
presumption of innocence. You must qualify the the Company to furnish them with its counter proposals.
presumption of innocence with the burden of proof when it Both requests were ignored and remained unacted upon
shifts. Cashier ka, gi cash count ka. Pag cash count, short by the Company.
ka. Your cash and your checks do not match the receipts
that you issued. Unsa man na? The presumption now is Left with no other alternative in its attempt to bring the
gigamit nimo ang kwarta; ang differential gigamit nimo. You Company to the bargaining table, the Union, on
must come up with the evidence. Because if you don’t, you February 14, 1979, filed a "Notice of Strike", with the
already lost the case. Is there still a presumption of Bureau of Labor Relations (BLR) on ground of
innocence? Yes, but it's now qualified. The qualification is if unresolved economic issues in collective bargaining.
you do not produce the proof, you're a goner - goodbye ka.
Prima facie case. There has been a wrongdoing that is Conciliation proceedings followed but all attempts
committed and the chances are it's you, nobody else! Wa towards an amicable settlement failed prompting the
nay lain, kay ikaw man ang custodian ana. BLR to certify the case to the NLRC.

Good faith is presumed. Usa namo ka tuig sige ug Company failed to submit position papers; kept
negotiation, walay CBA. The good faith is already a big requesting for a resetting of the hearing. When the
question mark because there is no result in your hearing was finally called, Company’s representative
negotiation. failed to appear.

c. For the purpose of arriving at a CBA The NLRC rendered its decision as follows:
Di man mo magtagbo aron magstoryahay ramo ug gyera.
Terms and conditions ang storyahan. WHEREFORE, the respondent Sweden Ice Cream is
hereby declared guilty of unjustified refusal to bargain,
Those are the three (3) positive elements. in violation of Section (g) Article 248 (now Article 249),
of P.D. 442, as amended. Further, the draft proposal for
The problem is the last sentence of this Article. a collective bargaining agreement (Exh. "E ") hereto
attached and made an integral part of this decision, sent
"...the duty does not compel any party to agree to any by the Union (Private respondent) to the respondent
proposal or to make any concession." (petitioner herein) and which is hereby found to be
reasonable under the premises, is hereby declared to be
So you cannot make it a matter of evidence that he has not the collective agreement which should govern the
agreed to any single proposal. Because there is no duty to relationship between the parties herein.
agree to any proposal or to make any concession. What sort SO ORDERED.
of duty is that? That is explained by the US Supreme Court.
The US Supreme Court is saying that labor relations laws Issue: Whether or not the finding of unfair labor
are configured in such a manner that if you were the owner practice for failure to bargain is proper. – YES.
of the horse, you have all the incentives and you are offered
all the necessary means to bring the horse up to the Held: Collective bargaining which is defined as
riverbank. Pero sa katapusan, miskan napaduko na nimo negotiations towards a collective agreement, is one of
ang kabayo, kinahanglan siya gyud ang muhigop sa tubig. the democratic frameworks under the New Labor Code,
Ug dili gani siya muhigop sa tubig, wala gyud kay mahimo. designed to stabilize the relation between labor and
management and to create a climate of sound and
Can you force agreement in collective bargaining? stable industrial peace. It is a mutual responsibility of
Let me tell you this, under the US jurisdiction, you can never the employer and the Union and is characterized as a
force collective bargaining. In the Philippines, go to the case legal obligation. So much so that Article 249, par.
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(g) of the Labor Code makes it an unfair labor respondent employer, after having been served with a
practice for an employer to refuse "to meet and written bargaining proposal by the petitioning Union,
convene promptly and expeditiously in good faith did not even bother to submit an answer or reply to the
for the purpose of negotiating an agreement with said proposal This doctrine was reiterated anew
respect to wages, hours of work, and all other in Bradman vs. Court of Industrial Relations wherein it
terms and conditions of employment including was further ruled that "while the law does not compel
proposals for adjusting any grievance or question the parties to reach an agreement, it does contemplate
arising under such an agreement and executing a that both parties will approach the negotiation with an
contract incorporating such agreement, if open mind and make a reasonable effort to reach a
requested by either party. common ground of agreement.

While it is a mutual obligation of the parties to bargain, I thought that this case was already superseded by the
the employer, however, is not under any legal duty to amendments to the Labor Code introduced by RA 6715. RA
initiate contract negotiation. The mechanics of 6715 added a provision in the rights of a legitimate labor
collective bargaining is set in motion only when the organization - that upon certification of a labor organization
following jurisdictional preconditions are present, that it is now the exclusive bargaining agent, it can demand
namely, (1) possession of the status of majority in writing the latest audited financial statements. I thought
representation of the employees' representative in that that was already the beginning of negotiation, the duty
accordance with any of the means of selection or to bargain. Management has the duty to give, once a union
designation provided for by the Labor Code; (2) proof is certified, a copy of the latest audited financial statements.
of majority representation; and (3) a demand to bargain And yet, in the case of General Milling v Casio (GR 149552),
under Article 251, par. (a) of the New Labor Code . ... the SC still referred to Kiok Loy. When the SC was asked -
all of which preconditions are undisputedly present in the issue in this case is when does the duty to bargain
the instant case. begin? When is the duty to meet promptly and expeditiously
in good faith to arrive at a CBA begin?
From the over-all conduct of petitioner company in
relation to the task of negotiation, there can be no doubt In Kiok Loy, the SC said that the duty begins when one of
that the Union has a valid cause to complain against its the parties has already written out its bargaining proposals.
(Company's) attitude, the totality of which is indicative And those written bargaining proposals have been
of the latter's disregard of, and failure to live up to, what submitted to the other party. It is always the union that
is enjoined by the Labor Code — to bargain in good writes proposals and submits to management. Why? Ngano
faith. dili man ang management na musulat siya ug proposal?
Because the longer you can postpone the CBA, the better
We are in total conformity with respondent NLRC's for management. The contract of employer-employee will
pronouncement that petitioner Company is GUILTY be the individual contract of employment. Ngano magdali-
of unfair labor practice. It has been indubitably dali man ang management na pulihan na niya ang individual
established that (1) respondent Union was a duly contract of employment na siya man nagbuot atong tanan
certified bargaining agent; (2) it made a definite gisulti didto? So it's always the union.
request to bargain, accompanied with a copy of the
proposed Collective Bargaining Agreement, to the When you have the written proposals and you give it to
Company not only once but twice which were left management - that is in accordance with Article 260 (Article
unanswered and unacted upon; and (3) the Company 261 in Labor Code 2017) - management has 10 days to
made no counter proposal whatsoever all of which agree to it or to make counter-proposals. "When a party
conclusively indicate lack of a sincere desire to desires to negotiate an agreement, it shall serve a written
negotiate. A Company's refusal to make counter notice on the other party with a statement of its proposals.
proposal if considered in relation to the entire The other party shall have to make a reply thereto not later
bargaining process, may indicate bad faith and this is than ten (10) calendar days from receipt of such notice."
specially true where the Union's request for a counter
proposal is left unanswered. Even during the period of Requirements to Write Proposal
compulsory arbitration before the NLRC, petitioner
Company's approach and attitude-stalling the But before you can write the proposal, according to the
negotiation by a series of postponements, non- Supreme Court, there are requirements:
appearance at the hearing conducted, and undue delay
in submitting its financial statements, lead to no other 1. Majority representation of the bargaining unit
conclusion except that it is unwilling to negotiate and 2. Proof of majority representation status
reach an agreement with the Union. Petitioner has not 3. Written proposal submitted to management
at any instance, evinced good faith or willingness to
discuss freely and fully the claims and demands set Then, the duty begins. He must make a response. And then,
forth by the Union much less justify its opposition after receiving the response, the union will propose
thereto. negotiations or he will agree entirely with the counter-
proposals. That is the beginning of collective bargaining -
The case at bar is not a case of first impression, for in negotiations.
the Herald Delivery Carriers Union (PAFLU) vs. Herald
Publications the rule had been laid down that "unfair There is a telling phrase here: "...in good faith for the
labor practice is committed when it is shown that the purpose of negotiating an agreement with respect to wages,
31 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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hours of work and all other terms and conditions of
employment including proposals for executing an Negative Duties
agreement and adjusting any grievance."
1. The duty does not compel any party to agree to a
What does that phrase say? That phrase can be summarized proposal
in three words: Mandatory subject of bargaining. 2. It does not compel any party to make any
concessions
A CBA can cover only terms and conditions of work of the
bargaining unit. It cannot cover any other terms and In the negotiation stage, you meet promptly and
conditions of work if it is not within the bargaining unit. expeditiously in good faith, in order to arrive at the terms
What happens if the agreement is included in the CBA and and conditions of work of the CBA, but this duty to bargain
they are not terms and conditions of work? It might be an does not give rise to the duty to agree to any proposal and
agreement but it is not within the jurisdiction of the labor make any concession. So, there are 5 elements – 3
tribunals. What is an example of an agreement that is not positives, and 2 negatives. MEMORIZE THAT. That is what
terms and conditions of work? Sige ni siya ug kahitabo kay Article 262 says.
kulang ug pagsabot ang kadaghanang union and
management sad ug kung ang abogado nila medyo mahina. ART. 262. [251] Duty to Bargain Collectively in the
Absence of Collective Bargaining Agreements. In the
Suppose there is a condition there that says, "management absence of an agreement or other voluntary arrangement
hereby agrees to grant the union the right of first refusal providing for a more expeditious manner of collective
before it can dispose onerously or gratuitously of its bargaining, it shall be the duty of employer and the
depreciated assets to third parties." Naay kotse, naay representatives of the employees to bargain collectively in
makina na gusto ibaligya sa management, ug nag agree sila accordance with the provisions of this Code.
sa CBA that they will the grant of first refusal to the union.
Kana, dili man na terms and conditions of work! What is Now, Article 263. (Father mentioned Article 263, but upon
that? That is an option to buy which is part of sales and searching, 253 gyud siya)
that's a nominate contract in the Civil Code. How can the
Labor Arbiter, the Secretary of Labor enforce that?
Article 253. Duty to bargain collectively when there
exists a collective bargaining agreement. When there
AUGUST 1 [ PEROY ]
is a collective bargaining agreement, the duty to bargain
collectively shall also mean that neither party shall
[Talks about the article re: AdDU being the 2nd best law
terminate nor modify such agreement during its lifetime.
school]
However, either party can serve a written notice to
terminate or modify the agreement at least sixty (60) days
Collective bargaining can be understood as –
prior to its expiration date. It shall be the duty of both
1. A right.
parties to keep the status quo and to continue in full force
2. A duty.
and effect the terms and conditions of the existing
3. A process.
agreement during the 60-day period and/or until a new
4. A product.
agreement is reached by the parties.
Under those 4 headings, all that there is under collective
Question: In Civil Law, once you have an agreement, do you
bargaining, you can put it there.
still bargain about the agreement? Do you still negotiate an
existing agreement?
COLLECTIVE BARGAINING AS A PRODUCT
Father: No more. The negotiation part has ended. So what
It is a contract – the collective bargaining agreement (CBA).
has happened, ends with the perfection of the contract, so
the contract is now to be executed. It is called as the
COLLECTIVE BARGAINING AS A PROCESS
“execution phase”.
There are 3 stages:
In contracts of transportation, when is it perfected?
1. Negotiation – ends with the signing of the CBA
and its ratification, so now you implement it.
First of all, it is not a written contract. It is, at best, an oral
2. Administration – you administer a contract that is
contract. You know very well that there can be a contract
already accomplished.
which may written, or oral – express, or implied. So, when
3. Renegotiation
is it perfected?
The content of collective bargaining as a duty in each stage
Contracts are perfected when there is a meeting of minds.
is progressive. In the negotiation stage, there is just one set
That is called as the “principle of consensuality”.
of duty – the 3 positives, and 2 negatives.
Contracts are perfected by mere consent, unless the law
requires a specific form. All real contracts – contracts
Positive Duties:
covering real property – must be in writing and it must be
in a public instrument.
1. To meet and convene promptly and expeditiously
2. In good faith

3. For the purpose of collective bargaining
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Dili na pareho anang ni palit lang ka ug pirit – pag buka
nimo sa mata, pula pa ang hasang unya tag 80 ang kilo, mu Normally, the ones who will modify it is the management.
ingon dayon ka ug “hala, sige.” Unya, iputos na dayon. Pag- Now, the management, it is true, as a general rule, cannot
ingon nimo ana, execution na dayon na. Mukuot dayon kag modify – but if the modification of management is in favor
80 sa imong bulsa, imoha na nang pirit. Kung i-snatch na of the employee, then he can do so!
tas idagan sa bata, wala na, di na na problema sa nag
baligya. Imo na nang kargo. Execution phase na man na. Example: The contract says the daily rate will be
500 Pesos a day. Suppose the management will
When is a contract of transportation perfected? When there say, “Usbon ni nato! Ingon ang management,
is a meeting of minds. 499 na lang. Ah, di na mahimo ha. That’s (1) a
violation of the contract and that is (2) a violation
When is there a meeting of minds? Pag para sa jeepney, of the prohibition against diminution of benefits.
mu-signal ka man na okay ka ana iyang sign dira – kung So, on two areas it is wrong. Under Labor
“Bankerohan”, adto ka sa Bankerohan. Pag para niya sa Standards, it is wrong. Under the Collective
tungod nimo, perfected na ang contract kay nag-sabot na Bargaining Agreement, it is wrong.
mo nga “Bankerohan?” “O!”. Pag-tikang nimo sa jeep,
execution na na. Now, suppose management says buhaton nato
ning 510 Pesos a day. Is that modification
But then the SC says – this Court takes judicial notice that allowed? Yes, it is allowed!
in Manila, it is not reckless for passengers to run to the
jeepney that has slowed down in response to passengers So, you can modify the agreement if it is an improvement –
standing at the curb, because that is life in Manila. Di man if it is redounding to the benefit of the employee.
parehas adto sa Cateel na atrasan pa ka sa jeep unya mag
suroy-suroy pa na. “TERMINATE.”

So kung pag-tikang nimo, madagma ka, mahulog ka, wa na. Example: Suppose, during the effectivity of the
You sue him for violation of a transportation contract, CBA, the local disaffiliates from the federation
because there is already a contract. that negotiated and signed the agreement with
the management. And then, when they
Now, the CBA, even if there is already a contract, there is disaffiliated, they affiliated with a new
still negotiation. The process of negotiations of the CBA federation. And this new federation is no longer
does not stop with the agreement. It continues, because bound by the personal obligations of the former
there is such a thing as “adjustment of grievance”. federation. No strike clause, they are not bound
by it. Mahadlok ang management! Nagingon ug
It’s a sui generis contract. Under Article 263 – duty to kalit ang management, “Iterminate nalang nato
bargain collectively when there exists a collective bargaining ning contract. Let’s just go to another contract.”
agreement. Naa nay agreement, ga-bargain gihapon. Pwede na? Pwede! You can renegotiate it if the
Kanus-a man ni mahuman? When does negotiation end in a parties agree.
collective bargaining agreement?
So there are exceptions to this rule. But, the standard rule
Article 263 says – is NO CHANGE ha. Just like ordinary contracts, since mao
na man ning gisabutan nato, let us not change it. But parties
When there is a collective bargaining agreement, the duty CAN WAIVE their right to no change. Isn’t it? What is
to bargain collectively shall also mean that neither party “changing a contract” in contract language? Novation! Is it
shall terminate nor modify such agreement during its not? If it is a loan, mutuum, then you extend the period of
lifetime. However, either party can serve a written notice to the loan. Is that novation? Yes! That is a substantial change!
terminate or modify the agreement at least sixty (60) days If you change the party who owes, that is novation! If you
prior to its expiration date. – that is the 60-day freedom change the creditor, is that novation? No, it is not! You can
period. It shall be the duty of both parties to keep the status assign your credit to somebody even without the agreement
quo and to continue in full force and effect the terms and of the debtor, diba? And that’s why people do not
conditions of the existing agreement during the 60-day understand collective bargaining! That is because in the first
period and/or until a new agreement is reached by the place, they do not understand a regular contract! Reviewha
parties. – so even beyond it’s expiry date, it is still effective. ra gud ninyo ha. Principle of consensuality. Principle of
mutuality. All principles of contracts. Review! And then you
AUGUST 1 [ PIZZARO ] go to the CBA, so that you will better understand a CBA.

So even beyond this expiry date it is still effective. The rule SCENARIO: Now, if there is a disagreement that
is you CANNOT terminate or modify it. But in the last arises from the CBA, what happens? It is treated after
60 days you can enter already in re-negotiating the the action of management. The CBA says, “You must show
agreement for the next 5 years. Is it true that a CBA that up for work at 8 in the morning; lunchbreak at 12 – 1; then
exists that have not been changed or modified, cannot be report back to work at 1; then you leave at 5.” Eight(8)
terminated nor modified? Is there an exception? Yes, there hours of work. Now, there is a worker that does not report
is an exception! at 8 AM. He always reports at 9 AM. His excuse is that he
still has to take care of his special child. That’s why he is
“MODIFY.” always late. Is that a good excuse? For a CBA, that is not a
33 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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good excuse! Because it does not change your obligation. the union members and answers questions from
So, if you don’t show up for work, what does the them etc. This was later on pronounced by the SC
management do? Oral Warning. Sunod, wa gihapon ka as bad faith bargaining.
nadala, Written Warning. Sunod, third time, unsa man for Why? Because it still attempts to bargain with the
example ang nakabutang sa handbook sa employees? Fine union directly by bypassing the exclusive
ka na. Unsa may fine? You will be fined one-half(1/2) of bargaining agent. Once you are in collective
your salary for the day. Fourth offense, the handbook says bargaining, you can only bargain with the
“You will be fined again, and this time, suspended ka 2 days bargaining unit thru the union. You cannot bargain
from work.” Fifth time, within the month, wa na…Dismissal with the Union thru its members of the bargaining
for “habitual tardiness.” Unya, apil man ang handbook sa unit. That is the meaning of exclusivity. It is
CBA by way of reference. Is that allowed? YES! Because a exclusive even of the principal which is an exception
contract can refer to another instrument. And it is called to the general rule of agency. In agency, the
“document by reference made part and parcel of the principal at any time can supersede the agent. In
contract.” So, when that happens, suspendido na siya, he fact there are certain things which only the principal
cries out, “I am aggrieved!” Muingon ang employer, “Adto can bargain for. But in collective bargaining, when
na lang sa laing employer, ayaw na diri sa ako.” Is that you come to agree in writing as to the terms and
correct or wrong? Ahh…anha ta diha mag-grievance. There conditions of work, the union (the exclusive
will be a grievance. bargaining agent) is really exclusive. It is exclusive
of the unit for whom it is bargaining.
A grievance is an adjustment. You are adjusting
something. When you say adjustment, there is a The SC says: You cannot bargain with the union
negotiation. Mag-ingon na ning union, “Pasayluon na lang thru the members. You can only bargain with the
ni nato for humanitarian grounds.” Unya miingon ang members thru the union. Dili nimo pugson ang
management, “Kung mag-humanitarian mi, ang tanang union na musugot sa imuhang gi-proposed by
empleyado nga naay special child musundog na na tanan! bargaining directly to the principals. You cannot do
Unya, kung tanang naay special child di na mureport on- that. That is the meaning of exclusive bargaining
time for work, unsa nay mahitabo?!” That is a negotiation agent.
ha. That is why I would suggest that you read this case of Later on, in the Philippines in the very famous case
Republic Savings Bank v. CIR, 21 SCRA 226, 1967. The of Insular Life vs Insular Life Employees the SC had
Supreme Court said here, and it is opened again and again, occasion to reiterate the same ruling. This was the
“Collective bargaining does not end with a CBA. It case of insurance brokers and agents of Insular
entails adjustment of grievances in the settling of Life, they were trying to form a union vis-a-vis
controversies arising from the already perfected Insular Life. But since Ayala do not recognize the
CBA.” That is why collective bargaining does not end with union, they went on strike. Now, when they were
the signing of agreement because there is a “continuous on strike, Ayala refused to accept the table be
adjusting of grievances.” paralyzed. So they were able to manage to
convinced some of the union members to continue
AUGUST 7 [ SANCHEZ ] working and they would be berated in the Ayala
Building. (*Chika about Ayala Center, BGC, most
So we have seen the 3 phases of collective bargaining expensive real properties in the PH, Manny
 the negotiation stage; Pacquiao and Enrile).
 the administration stage; and What Ayala did when they went on strike, Ayala
 the renegotiation stage started calling the families of these workers. Asking
the wives to convince their husbands to go back to
We said that the duty to bargain which begins with Art work. Ayala put out hand bills, trying to convince
261 and til 264 of Labor Code.That is 4 provisions. the striking employees to compromise with
They are distinct duties and yet they all aggregate as management. That was after 2 weeks of strike.
the stages proceeds or develops. So the duty in the 1st That was considered by the SC as bad faith
stage is still effective in the 2nd stage, and the two sets bargaining. You cannot bargain with the union thru
of duties in the 2nd stage is still present in the 3rd the members. You can only bargain with the
stage. That is what you have to remember. members, thru the Union. So when they strike, you
can only talk to the union. You cannot try to
Now, in the negotiation stage, there is this 1st example of negotiate with the members. If you do, then that is
bad faith bargaining which is called Boulwerism, named bad faith bargaining. So that is Boulwerism.
after Mr. Lemuel Boulwer. The infamous vice president for
labor relations of general electric. The next kind of Bad Faith Bargaining example is the case
of Union of Filipino Employees vs. Nestle. There are 2
What did he do? He bought a lot of airtime over the decisions here. 2006 decision and there is a resolution for
radio, public advertising space and distributed it to the MFR which came 2 years later. 1st Division, Chico-
everybody in the city explaining the bargaining Nazario and then the MFR came 2 years later still by Chico-
proposals of management and emphasizing that Nazario. Now, you must understand that Nestle, at this time
the best possible bargain that a union can obtain is have 13 manufacturing plants in the Philippines. The
what the company was offering. He gave it to the decision in that case is the landmark decision that defines
families of the union members. He gave it to all the what is an "Organized Establishment". 13 plants, all them
union members and they were open and gathered are organized. This one plant is the only plant that is has in
34 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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its exclusive bargaining agent a union affiliated with KMU. Is retirement benefits a mandatory subject of
They were holdouts as to one particular issue: the issue of bargaining?
Retirement Benefits. All the other plants, the 12 plants,
already agreed to the retirement benefits. Such benefit was SC: Yes.
very generous that instead of 1/2 month for every year of
service including 5 day SIL and 1/12 of 13th month pay What is the difference between Nestle case and Kiok
which is equivalently 22.5 days for every year of service. Loy case (GR No. L-54334, Jan. 22, 1986)?
The retirement benefit granted by Nestle as agreed upon by
the 12 plants is 1 month and a half. So double. Besides the The difference is Kiokloy is guilty of Bad Faith
retirement benefit is non-contributory, meaning you do not Bargaining because he didn't appear at all in the
have to set aside any contribution from your salary for the bargaining table. So if refused to bargain,
retirement benefit. So the law says, if no agreement, the mulingkod ka lang dira, makig-storya ka, you are
minimum of such retirement benefit will be that of 22.5 days still bargaining because according to Art. 262, the
for every year of service. If you have contributory duty bargain does not include the duty to agree to
retirement benefits, it should be higher than this. It is very any proposal or to make any concession. Basta
good, you are not contributing anything and it is higher than makigsulti lang ka unya muingon kag di nako gusto
labor standard. makigsulti pero nia ko diri, bargaining gihapon na.

Now: AUGUST 7 [ TALON ]

KMU, the Union says: We want to discuss it
Management said: We don't want to open it up The third kind of bad faith bargaining is called Surface
because if we open it up and we agreed something Bargaining.
higher, the other 12 unions of each plant which we
already completed negotiation, they will want this The earliest decision is in the case of Jack Belt
and it is already beyond the power of the company Construction vs. NLRC. There is a long discussion there
to grant. It is very high on what is surface bargaining.
Now, the union have a very strong argument
and it said: That we want to and you cannot help And another important case is Standard Charter Bank
but discuss it because it is a mandatory subject of Employees Union-NUBE vs. Confessor. What is NUBE?
bargaining. The mandatory subject of bargaining NUBE is a federation. National Union of Bank Employees.
must be about terms and conditions of work. So if Most unionized locals are affiliated with NUBE. It disaffiliated
we bring up the terms and conditions of work, you with the multisectoral unit of KMU. But it is still a standing
have no recourse but to sit down and bargain federation of bank employees.
Management says: That's why we are here and
we are saying that we won't bargain because it is In this case, there was a charge of surface bargaining.
too much for us. Bargaining has taken course for 2 years and there is yet no
So they went voluntary arbitration, then Court of CBA. So finally the union said: “These people are just
Appeals and then the SC. The union was upheld by putting on the appearance of bargaining. They show up
the Supreme Court. The first decision says it is a every negotiation session. They are very cordial. They are
mandatory subject of bargaining and management very attentive to our nutritional needs. But there is no
cannot refuse to bargain. progress. We have not arrived at a CBA.” So their bargaining
is merely surface bargaining.
Yet, management said: We made our position
that we will not bargain. That is our bargaining How do you determine WON it is surface bargaining or harm
position, we will not bargain anymore because it is (?) bargaining? Kanang mga experienced sa collective
too high. bargaining, just like the master negotiator Sigeon-Reyna...
So with that SC decision, the union filed an ancillary (Story about the first case in Philippine History)
pleading asking Nestle to be held in contempt
because there is already a decision saying that it is In negotiation, the first one who gets mad is the loser. But
mandatory subject of bargaining and therefore you in mediation and conciliation, being mad is a privilege. You
must bargain. are not penalized because all of these are part of getting
The Union says: A decision that has become final into an amicable settlement over a deadlock.
and executory is a source of right. The order is you
bargain. But you are saying we will not bargain, so Surface bargaining according to the Supreme Court is very
you are in contempt. So it went back to the SC difficult to decide. It involves a comprehensive review, not
only of what the conduct of the party is during the
The SC says(in the 2nd decision): The management cannot negotiation but also outside the negotiating table. Are the
be held in contempt because management is actually parties really intended into creating a CBA?
bargaining. Its position that it will not bargain is as
legitimate as your position that you want to bargain. It is Here comes a ruling of the SC which I think is erroneous.
not walking out. It is sitting there and say I am here This is the ruling on Blue Sky Bargaining (BSB). The union
negotiating that I don't want to negotiate.That is as charged that the management is committing BSB. Who is
legitimate as your position that you want to negotiate. That the authority with regards to BSB? Arthur A. Sloane and
is not Bad Faith Bargaining. Fred Witney, Labor Relations, 7th Edition, 1991, p. 195
(footnote 59). Read that.
35 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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approached by ALU associated labor union. A federation or
There is no such thing a BSB. If the union asks something league of federation with new officers. And now they present
so high, obviously the management cannot grant it. Its call new bargaining proposals. What does the university
BS because they are asking for the sky. Its nice to hear but administration’s rule? Is it okay? We received this
it is impossible. bargaining proposals. And let us set the date for meeting
and negotiating. They set the date one week after. On that
Now, does it make the fact that somebody is offering the same day that they were supposed to meet and bargain,
blue sky make the bargaining in bad faith? management files a petition for certification election. Asking
the _ to set the date for certification and _ choose the
If you read JBL Reyes in Caltex Philippines vs. Philippine exclusive bargaining agent of the bargaining union.
Labor Organizations, Caltex Chapter, which was ignored
by the SC when it promulgated its decision in Standard Supreme Court says: that is bad faith bargaining. Makig
Chartered casa, The many benefits that the labor is now bargain ka unya wa pa diay ka maka hibalo kinsa imong I
enjoying used to be impossible demands. Example, what is bargain kay magpa election man ka.
the working hours in the industrial period? 12 hours. Why?
Depends on the sun. So the first union is asking for 8 hours. That’s the mistake of the legal council. The legal council
Now, for the employer then, it was an impossible demand. should have said “Sorry ALU, I do not know you from ADAT.
And yet, someday has to begin asking for it before it will All I know is three years ago, the independent labor union
become a reality. So, a demand that is economically of the faculty of Divine World University of Tacloban won a
impossible to grant is not by the mere fact of its certification rights. They are the exclusive bargaining agent.
unaffordability an evidence of bad faith bargaining. That’s You ALU, I do not know you, therefore I cannot receive your
what JBL Reyes said. The SC entertained BSB, but did not bargaining proposals”. Naa na nimo kung unsa imong
find any BSB in this case. buhaton. Kung nag tuo sila they have majority of
presentation, then they go the Regional Director, file a
AUGUST 7 [ VILLAVICENCIO ] petition for certification and there will be an election.

The fifth example of bad faith bargaining St. John College Why can the university administrate administration not take
Incorporated vs St. John Faculty and employees up the bargaining position? When presented with bargaining
Union. proposals, why can’t they do that?

This is a catholic school that is in the midst of collective Because the certification new rule is over. Humana
bargaining. Announces the closure of its school and man. From after the time that the labor organization is
succeeds in getting a waiver after consideration granting the certified, it was come up.
separation of benefits to those who signed the waiver and
the school is closed. Bu then the following year, the school How can you be sure na this union now is labor federation
opens. So, the closure of the school is used as it partake__ is the exclusive bargaining representative of the majority?
and this is what the Supreme Court says: is bad faith We do not know.
bargaining because an employer cannot unitarily close
its establishment from the pretext that the demands of Do you have the duty to petition the labor department? So
the employees are excessive. that you will determine who their representative is. Because
there are some cases, the employer may file a petition
This has already happened to me. Kanang holy cross crest, certification when asked market collective.
biskan dili na man kaha ka maka hatag, edi _ ma pressure
ka ana. Kadtong nahitabo sa St. John College kay gi abrihan So, that is an example of bad faith bargaining. Now, time
man nila usab __ ayaw nag abrihi kay di na man kaha ka will again the supreme court says, allegations of bad
maka form wa na gyud moy trabaho ang mga tao. Dili man faith bargaining during the evaluating process are
na pareha sa Criminal Law, maka apak gani ka, threats na. negated if there is already a collective bargaining
kung nahubo na gani nimo, dili na na sayop. agreement that was in fact.

If you use unilateral closure as a weapon in Naa na gani nagpa litrato na gani mo, nag pinirmahay, na
bargaining, that is bad faith bargaining. kompleto na; that negates bad faith bargaining. Maliban
lang if grant CBA that you are siding does not offer letter
But if you close and closed permanently, that is an that is statutory rights.
exercise of managerial prerogative. Use this _ you have the If the benefits that are provided in that CBA_ is less
right to dispose, you own the business. Sirahan nimo, unsa than statutory benefits then that is a mockery. That is
na may mahitabo ana problema na nako? a sweetheart contract. That does not prove that there
was a sincere good faith bargaining.
Sixth example of bad faith bargaining is the case of Divine
World University in Tacloban petitioner vs secretary So, alright, I hope you go over those cases.
of labor, secretary Torres. September 11, 1992.
Now, when we go to the administration phase
There was the beginning of bargaining, the union
submitted written bargaining proposals. Then the Article 263. The duty to bargain collectively when there is
president of the union died. And then nothing happened for a collective bargaining agreement means the duty to
two years. All of a sudden, the university administration is
36 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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bargain collectively shall also mean that neither party shall Can the management change it for the better, of course. By
terminate or modified such agreement during its right time. what rule break, managerial prerogatives. E.O. has always
has that. He cannot close it, he can always change it, but
So, what is that? That means, maintenance of the status for the better.
quo continue in full force and effect the terms and conditions That is why the Supreme Court has said _ collective
of the existing agreement during the 60-day freedom bargaining_ does not met with the CBA. You continue to
period. meet _ whenever there is a question of interpretation,
And or until a new agreement is change. So, even after the implementation of the CBA. Supposed management _.
expiry date of the CBA, if there is no CBA, then that CBA
would still continue to be in force and effect. Binuang na man nag sigeg complain sa union. Management
does not really enter a bona fide.
What if somebody files a petition for certification
exemption during the 60-day freedom period. And an Thus the management has the duty to meet and to _ an
election is held and there is no definitive conclusion expedition for the grievant. And the answer is yes. In the
as to the election because there is protest, counter same fashion has, you are the debtor, he act as a creditor.
protest and it goes up for the met arbiter to the A sum of money, naka bayad ka na, buang-buang man diay
secretary of labor, to the Court of Appeals and finally ning creditor nganong mo tuo man ka ana? File ug kaso dira.
to the Supreme Court, it takes some time. Tubagon nimo, mo tungha ka didto. Naa na sa imong
abogado unsa iyang buhaton, madala pa nag motion to
What happens? The CBA that has inspired is still a force dismiss. File-an kag kaso based on a document, promissory
and effect, until there is a resolution of that certification note imong gi pirmahan. Ug mo file kag motion to dismiss
exemption issue of that organizers. unsa may motion imong I file? Maka file ba ka motion to
close. Answer with motion to dismiss ug maka file ka,
The intention of the labor code is naa na gani ka sa labor motion to dismiss. Fundamental na. file kag motion to
relations collective bargaining di na ka kagawas, you will dismiss for lack of cause of action. unsa may cause of action
stay there. You’ll never get out, the only way you get out ana. Tanan resibo imong gi pirmahan, bayad pa gani. What
there’s a certification election; mapildi ang.. not only right has been violated that you have? You have no cause
encounter maka daog ang no union. Mao ra nay maka gawas of action against me. motion to dismiss for matter lack of
sa imo sa collective bargaining. cause of action. nasakitan ba ka? Naa bay injury? Unsa may
nagulo nimo? Wala, ni bayad na man ka, naira oh resibo.
Question: if no union wins during that election 60-day Pero kanang uban, wa man gihapon ka adto, patas-on pa
freedom period, a petition is filed_ mapildi ang no gyud na nila. Balikan na nato. Bahalag cancel inyong
union, aw maka daog ang no union. What happens? counter claim. Patas-on pa nila ba. Unsa may makuha nimo
Is the CBA ejected? ana nga resibo ra may kinahanglan nimo ipakita. Sayon ra
They continue to be in full force and effect because there is kaayo.
what ruled they will follow. Prohibitions against the _wages
and benefits. Incorrected bargaining, somebody has a grievance. Wa may
grievance na. dili man na grievance.
Padayon gihapon na. only a better terms and
condition can render the old CBA extinct. In fact, during I’ll give you an example: next in rank rule, management
the administration phase, if management changes the terms at risk. That where a position is rendered vacant by the
and conditions agreed upon in such a matter that is resignation def in capacity interact of the union member or
favorable to the employees in the bargaining unit, that employee included in the bargaining unit occupying that
change is for _over what is provided in the CBA. position. That management with acquaint as replacement
the next in rank employee.
So, it is not exactly true that you must dictate the status
quo. You maintain the status quo _ a choice of lowering the All of the things being considered equal. Unya ang assistant
status quo. abtik pero libat. Oh siya na mo direct ana ug ma sayop na
But if it’s improving the status quo, then management is _. siya. Unya katong mas ubos niya klarog mata. Management
And the union may no oppose it. patas-an diay nato ang has the prerogative nga dili pwede ang next in rank na
sweldo. That is a proper exercise of managerial _. That is assistant na sya ug dugay na kaayo sya. So, di na all things
why again, hard one to the original principles. are equal. Karon mag lalis, next in rank iyang gi appoint
mas ubos. Unya pakasad-on nila ug grievance. Unsa may
If the collective bargaining agreement, management is the tubag ana sa employer? Dili man ni grievance, intra-union
proactive party, the union and the new members of those dispute ni. Ang next in rank union member, kadtong lower
bargaining unit are merely reactive parties. lang gihapon, kinsa may iyan ggi dapigan na puros union
member ang nag away.
Mo ingon na ng union, nag lisud na man me kay inflation
has moved out double forecasted by the NEDA mausab ba AUGUST 7 [ TAN ]
nato ni CBA? You cannot change it.
They have to approach the Med-Arbiter, because that is an
There management can go to 263. Neither party shall intra-union dispute.
modify or terminate the CBA.
CONTENTS OF COLLECTIVE BARGAINING
PROVISIONS
37 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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A case for unfair labor practice was then filed against the
The contents are divided into economic provisions and non- conservator, because it was flagrant and malicious refusal
economic provisions. to comply with the economic provision. In no uncertain
terms, the uniform allowance was granted for the past two
Economic Provisions years without any questions asked. So why does the bank
now refuse to grant it?
According to the Labor Code, only violations of economic
provisions in the CBA give rise to a ground for strike. All The answer of the conservator is because they were in the
other violations do not give the same effect. Such violation era of conservation, and he had the power to do under the
of the economic provision must be gross violation, when it new Central Bank law.
is a flagrant or malicious refusal to comply with an economic
provision (Note: memorize this). Ruling:
The Supreme Court then ruled that the conservator is in
It’s a flagrant and malicious refusal to comply with the CBA error, but his error was honest. He has overstepped, but he
when the terms, words and formulas used in the particular is correct on saying that he should conserve the bank’s
provision in question is clear and ambigious and no question assets. However, he has no power to renege on obligations
of interpretation, because if there’s a question of entered into in arm’s length. These are not irregular
interpretation, then it’s not flagrant nor a malicious refusal. transactions. The CBA was entered into sincerely in good
faith, and all obligations therein is on the level. There is no
Examples: taking advantage by the bank. The conservator can only
 “Management must grant this within 10 days”. This is stop obligations that are doubtful and entered into at a great
open to interpretation, because this could mean disadvantage to the bank. Collateral. (Example: Overvalue
calendar days or working days. of commercial property (P20,000 per square meter), which
 The question of wage increase per year, leaves and turned out to be a fishpond. Now that is a contract entered
other benefits that may be reduced to a peso value into in a great disadvantage). That is what can be corrected.
Not contracts entered into at arm’s length.
Non-economic Provision
The Court further ruled that the interpretation of the
An example for a non-economic provision would be a no- conservator can be excused, because of the ambiguity of
strike clause, which is a standard provision that Regional the new Central Bank law, not necessarily the CBA.
Offices would refuse take cognizance of the CBA if there was
no said clause within such. This is a telling case na sayop diay ka sa pag interpret og
 Example: “Management and union hereby agree that powers.
for the duration of the CBA, all controversies, questions
as to implementation or interpretation of a CBA shall be Indophil Textile Mill Workers v. Voluntary Arbitrator
amicably settled through the grievance machinery, and Teodorico Calica and Indophil Textile Mills, Inc
shall not give rise to a ground for strike on the part of
the union, and a ground for lay-off on the part of the Facts:
management”. There is a proviso or a recognition clause in the CBA that
states that “the management agrees that Samahan ng mga
JURISPRUDENCE Managgawa sa Indophil is the sole and exclusive bargaining
Commercial Bank and Trust Company case. agent of all the regular daily-paid production workers of the
Indophil factory, and that all other plants and factories to
Facts: be set up within the premises of Indophil”.
They were put under rehabilitation, because they were
suffering major irregularities under the auditing of the Now there’s a new factory built, but that was set up by
Central Bank. The Central Bank then appointed a another corporation with the same controlling interest of
conservator, who overruled the Board of Directors and Indophil. The union now contended that it was included in
President, and took over the bank, because the latter is on the CBA as to the phrase “all other plants and factories to
a violation. be set up within the premises of Indophil”. Indophil
contended this was outside the scope of the phrase, because
The conservator then unilaterally makes an announcement the party was a different corporation. The union then filed a
to all the employees of the bank that there will be no case for unfair labor practice. The thesis of the union is that
uniform allowance issued to the workers that year, even if the separate personality must be cancelled, because it’s just
it’s clearly demanded by the CBA (“every year, there will be one entity.
a change of uniform, and the management agrees to
shoulder the uniform allowance.”). The conservator further Ruling:
invoked his prerogative under the new Central Bank Act, The Supreme Court states that the mere fact that the two
that his job was to maximize the assets and restore the bank corporations have the same controlling interest is not a
back to its pristine financial health. He then insists that the ground for cancelling the separate and distinct personalities
same uniform can be used, and assured that the banking of these two employers. There must be an irregularity
service will not be affected in any substantial way just before such personalities can be disregarded. Indophil
because the uniform is over a year old. Acrylic is a separate entity under the law. Indophil Textile is
also a separate entity. The latter is not preventing the

38 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
exercise of the right for self-organization, since they are of strike alleging that petitioner was guilty of unfair labor
willing for a petition for certification election be filed and practice because the union members were discriminated
held, so the order has no irregularity involved. against in the grant of the profit sharing benefits.
Consequently, management refused to proceed with the
The Court further ruled that you cannot broaden the CBA negotiations unless the last notice of strike was first
appropriate bargaining unit, when the simple rubric of resolved. The union agreed to postpone discussions on
adding phrases in the recognition clause. You cannot the profit sharing demand until a new CBA was
broaden nor truncate it. concluded. After a series of conciliation conferences, the
parties agreed to settle the dispute through voluntary
Remember that this is a non-economic provision. arbitration. After the parties submitted their position
papers, a rejoinder and reply, on March 20, 1989 the
Wise and Co. v. NLRC voluntary arbitrator issued an award ordering petitioner
to likewise extend the benefits of the 1987 profit sharing
Facts: scheme to the members of respondent union. 1 Hence,
The CBA provides benefits for the regular daily-paid this petition wherein petitioner alleged the following
workers. After the CBA is signed, management gives the grounds in support thereof —
same identical benefits to monthly-paid workers. They are
free riders. Kinsa nag hago? Kami ang union diri. Sila ang "I
mga benepisyo pareho sa amo. Although the CBA only THE HONORABLE VOLUNTARY ARBITRATOR ACTED WITH
covers daily-paid regular workers, in effect, we are GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
negotiating for the monthly-paid, because every time we EXCESS OF JURISDICTION WHEN HE ORDERED THE
finish a CBA, they enjoy identical benefits. So the provision EXTENSION OF PROFIT SHARING BENEFITS TO THOSE
collects union dues from them, because they benefitted EMPLOYEES COVERED BY THE CBA DESPITE PATENT
from such workers. LACK OF FACTUAL AND LEGAL BASIS THEREFOR IN THAT
—
Ruling:
Is this correct? Read the case. 1. DISCRIMINATION PER SE IS NOT UNLAWFUL
ESPECIALLY WHEN THE EMPLOYEES ARE NOT SIMILARLY
The center of controversy in this petition is whether the SITUATED.
grant by management of profit sharing benefits to its
non-union member employees is discriminatory against 2. THE TERMS AND CONDITIONS STIPULATED IN THE
its workers who are union members. CBA HAVE THE FORCE AND EFFECT OF A LAW BETWEEN
THE PARTIES. PRIVATE RESPONDENT, THEREFORE
The facts are undisputed. On April 3, 1987 the CANNOT DEMAND, AS A MATTER OF RIGHT, WHAT IS
management issued a memorandum circular introducing NOT STIPULATED IN THE CBA.
a profit sharing scheme for its managers and supervisors
the initial distribution of which was to take effect March 3. THE ACT OF THE UNION IN NEGOTIATING FOR THE
31, 1988.chanrobles lawlibrary : rednad INCLUSION OF THE PROFIT SHARING BENEFIT IN THE
PRESENT CBA IS AN IMPLIED ADMISSION THAT THEY
On July 3, 1987 the respondent union wrote petitioner WERE NOT ENTITLED TO IT IN 1987.
through its president asking for participation in this
scheme. This was denied by petitioner on the ground that II
it had to adhere strictly to the Collective Bargaining THE HONORABLE VOLUNTARY ARBITRATOR COMMITTED
Agreement (CBA). GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN HE MADE THE CLEARLY
In the meantime, talks were underway for early BASELESS CONCLUSION THAT THE PETITIONER WAS
negotiation by the parties of the CBA which was due to MOTIVATED BY ITS DESIRE TO DEFEAT OR OTHERWISE
expire on April 30, 1988. The negotiation thus begun PREJUDICE THE BASIC RIGHTS OF ITS EMPLOYEES." 2
earlier than the freedom period. On November 11, 1987
petitioner wrote respondent union advising the latter that The petition is impressed with merit.
they were prepared to consider including the employees
covered by the CBA in the profit sharing scheme Under the CBA between the parties that was in force and
beginning the year 1987 provided that the ongoing effect from May 1, 1985 to April 30, 1988 it was agreed
negotiations were concluded prior to December 1987. that the "bargaining unit" covered by the CBA "consists
However, the collective bargaining negotiations reached of all regular or permanent employees, below the rank of
a deadlock on the issue of the scope of the bargaining assistant supervisor." 3 Also expressly excluded from the
unit. Conciliation efforts to settle the dispute on 29 March term "appropriate bargaining unit" are all regular rank
1988 were made but no settlement was and file employees in the office of the president, vice-
reached.chanrobles.com:cralaw:red president, and the other offices of the company —
personnel office, security office, corporate affairs office,
On March 30, 1988, petitioner distributed the profit accounting and treasury department. 4
sharing benefit not only to managers and supervisors but
also to all other rank and file employees not covered by It is to this class of employees who were excluded in the
the CBA. This caused the respondent union to file a notice "bargaining unit" and who do not derive benefits from the

39 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
CBA that the profit sharing privilege was extended by
petitioner. However, the court serves notice that it will not hesitate
to strike down any act of the employer that tends to be
There can be no discrimination committed by petitioner discriminatory against union members. It is only because
thereby as the situation of the union employees are of the peculiar circumstances of this case showing there
different and distinct from the non-union employees. 5 is no such intention that this court ruled otherwise.
Indeed, discrimination per se is not unlawful. There can
be no discrimination where the employees concerned are AUGUST 8 [ SUAREZ ]
not similarly situated.
COLLECTIVE BARGAINING AGREEMENT
Respondent union can not claim that there is grave abuse
of discretion by the petitioner in extending the benefits of You know of course what is the difference between an
profit sharing to the non-union employees as they are instrument and a contract. The CONTRACT is an agreement,
two (2) groups not similarly situated. These non-union a meeting of minds. An INSTRUMENT is the physical,
employees are not covered by the CBA. They do not receptacle vehicle that contains the agreement.
derive and enjoy the benefits under the CBA. EXAMPLE: You have a loan with a mortgage written on a
long sheet. The long sheet is the colloquial term for an
The contention of the respondent union that the grant to instrument that you sign only once because all the pages
the non-union employees of the profit sharing benefits are connected. Not like the usual instrument where you
was made at a time when there was a deadlock in the have to sign each and every page. Now, since you can have
CBA negotiation so that apparently the motive thereby an instrument, that is connected you just have to sign the
was to discourage such non-union employees from last. Where is this used? You normally sign this when you
joining the union is not borne by the record. Petitioner buy a house or a condominium because you want things
denies this accusation and instead points out that inspite very fast, kausa ra ta mupirma, because it’s all connected.
of this benefit extended to them, some non-union If it is disconnected or stapled, then you have to sign each
workers actually joined the respondent union and every page. A loan with a mortgage are actually two
thereafter.chanrobles law library contracts. The promissory note and then the collateral
agreement of a mortgage. As you very well know, the
Respondent union also decries that no less than the mortgage is dependent on the primary contract. If there is
president of the petitioner agreed to include its members no loan, there is no mortgage. Even if everybody signs the
in the coverage of the 1987 profit sharing benefit mortgage, the bank signs the mortgage, you sign the
provided that they would agree to an earlier negotiation mortgage, but actually when the loan is not released
for the renewal of the CBA which expired in 1988. Be this because there is a problem, then the mortgage is null and
as it may, since there was actually a deadlock in the vo—wed (void).
negotiation and it was not resolved and consummated on
the period expected, private respondent can not now Why do we have to clearly understand this?
claim that petitioner has a duty to extend the profit
sharing benefit to the union members. Because a Collective Bargaining Agreement can contain
many agreements. But a Collective Bargaining Agreement
The Court holds that it is the prerogative of management is concerned only with “terms and conditions of work”
to regulate, according to its discretion and judgment, all in a particular bargaining unit. If they agree with this other
aspects of employment. This flows from the established than that, then it’s riding on an instrument but it is not the
rule that labor law does not authorize the substitution of CBA because the CBA is only concerned with mandatory
the judgment of the employer in the conduct of its subjects of bargaining. So when there is a controversy that
business. 6 Such management prerogative may be arises from these agreements that are not terms and
availed of without fear of any liability so long as it is conditions of work, you have to go to another forum because
exercised in good faith for the advancement of the the Labor Arbiter, the labor tribunals have no jurisdiction.
employers’ interest and not for the purpose of defeating Courts are courts of general jurisdiction. Labor Arbiter is
or circumventing the rights of employees under special special jurisdiction. They (labor tribunals) are only
laws or valid agreement and are not exercised in a concerned with terms and conditions of work.
malicious, harsh, oppressive, vindictive or wanton
manner or out of malice or spite. 7 EXAMPLE: One of the provisions says: “Management
hereby agrees to grant the right of first refusal to the union
The grant by petitioner of profit sharing benefits to the for all dispositions of movable assets of the company.”
employees outside the "bargaining unit" falls under the
ambit of its managerial prerogative. It appears to have What is a right of first refusal?
been done in good faith and without ulterior motive. More It’s another term for option to buy.
so when as in this case there is a clause in the CBA where What are the rules with respect to option to buy
the employees are classified into those who are members in your obligations and contract?
of the union and those who are not. In the case of the
union members, they derive their benefits from the terms It must have a separate consideration if it has to have
and conditions of the CBA contract which constitute the force and effect. If the person granted an option has an
law between the contracting parties. 8 Both the employer assertable right, he must have given a separate and
and the union members are bound by such distinct consideration for that. That consideration may
agreement.chanrobles.com : virtual law library be part of the sale price or sale consideration but it is
40 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
reckoned with separately. Let’s say an earnest money. many lawyers associate that terminology with better
Muingon ka, paliton nako ni imo sakyanan, naa ko’y attorney’s fees. ;-)
earnest money P1,000. Tag P60,000 ang sakyanan. You
have 1 month to produce the 60,000. But at the end of Know all men by these presents:
1 month you cannot produce the 60,000, goodbye! He This Collective Bargaining Agreement entered into by
can sell it to another because an option must have a and between:
separate consideration. *then you describe the parties. The first party to be
described is normally the employer*
When you agree in the CBA that the union has the right of XYZ Corporation, duly incorporated with the Securities
first refusal, or has the option to buy dispositions of movable and Exchange Commission, with registration no. 1234
properties of the company. For instance, they are going to and principal offices at 123 Rizal St. Davao City, a duly
change their computers. Before they sell them they have to registered corporation engaged in the manufacture of
ask the union because they have agreed in the CBA. all kinds of generic medicine over-the-counter.
Represented hereunder by its duly authorized corporate
Is that correct? And if there is a controversy, you go representative, Senior Vice-president Allan B. Santos,
to the Labor Arbiter for the Labor Arbiter to determine of the Human Resource Division and its lawyer Atty. So
who is in the right? and So, hereinafter referred to as Management;
And;
No. Because that is not terms and conditions of work. Samahan ng mga Manggagawa sa XYZ Corporation-
The union might say, it is terms and conditions of work KMU, a duly registered labor organization with the
because it is there in the CBA. It could not have arisen if the Bureau of Labor Relations with registration no. 1234,
union were not part of this employer-employee relationship. principal offices at 246 San Pedro St. Davao City,
It must be arising from ee-er relationship so therefore it is represented hereunder by *if represented by a Union,
terms of condition of work? always the President, Vice-president, Secretary,
daghan kayo na sila, magparade na sila. Ngano man
NOOO. It is not. Why? Because to determine who is in the daghan kaayo representative sa Union? Normally
right when there is a controversy about options, it is not the because they do not trust each other* hereinafter
Labor Code that is used, it is the Civil Code. Because sale is referred to as Union;
a nominate contract falling under the exclusive original Witnesseth:
jurisdiction of the regular courts. If you do not admit that, *then it begins…
then you violate the Judiciary Act. Section 1. Management agrees that the union is the sole
and exclusive representative of all the regular
So always be careful! When you read the CBA, you must employees of XYZ Corporation, save those that are
have a good idea of what is “terms and conditions of work.” excluded by law.
Where do you get that? You get that when you have a good
grasp of Labor Standards. If you do not have a good grasp Suppose the Recognition Clause says:
of Labor Standards then you think of ee-er relationship. You Management hereby agrees that Samahan ng mga
think about labor mandatory subjects of bargaining only as Manggagawa sa XYZ Corporation is the sole and exclusive
temporary. representative of all those employees occupying the
positions, the masterlist of which is referred to in a separate
Whatever arises between management and labor is cover, marked as “Appendix 1” covering all the positions
an issue of ee-er relationship? that are included in the bargaining unit represented.

No. That is not the point. Time and again the Supreme Court So there is a document referred to by the agreement.
has said, ee-er relationship issues are those to be resolved Is that allowed? What does your contracts law tell
by the use of the Labor Code. If it is not the Labor Code that you? Can you include another document by reference
will resolve the issue, it is not ee-er relationship, it is not in a contract?
Collective Bargaining.
So, it might be in the CBA instrument, nakarga dinha, but Yes! The CBA is covered by the rules on contract.
it’s not CBA. It’s another agreement to be resolved by If you are management and you agree with that, that’s the
another forum. end of you. All the positions listed there, electrician 1,
So once again, make sure you know that distinction electrician 2, carpenter 1, carpenter 2, etc. Because that is
between instrument and contract. An instrument is a how you should think of a bargaining unit, the positions that
physical, receptacle vehicle of an agreement. Now it can be are covered by the bargaining unit. So what happens? You
digital. It need not be in a piece of paper but it is still an put a driver 1, driver 2, special driver 3. What happens when
instrument. It is a vehicle on which agreements are riding. there is now autonomous vehicles? What happens when the
company wants to buy autonomous trucks? What will you
Illustration: Collective Bargaining Agreement at XYZ do with your drivers? Muingon sila, we are still driver 1,
Corporation. driver 2. Tan-awa among appointment, driver 1 gud ko.
Wala lang truck kay gipulihan man nila ug autonomous
If you are the traditional lawyer, your agreement always vehicles, pero naa pa man ko. Unsaon man na? Dakong
begins with “KNOW ALL MEN BY THESE PRESENTS.” That gyera na. That becomes a grievance.
phrase has long been dumped in the US. Nobody uses that
there anymore. But in the Philippines, many people and

41 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
So remember this, ma-abogado gani mo ug employer, mu- discussion. "But that is a mandatory subject of bargaining",
agree gani mo na ilista tanan employees, that is your death "Yes, we know it is mandatory, but this one is special, etc."
warrant. For as long as you talk, you negotiate, that you don't want
to negotiate with this guy around, you are not violating the
Can it happen that there will be more supervisors duty to bargain.
than rank-and-file employees? Is that possible?
Please remember that, importante na. I am not teaching
In Labor Relations that is possible! PLDT has more you just what the law says, but I am teaching you how to
supervisors than rank-and-file employees. Because rank- negotiate. How to act correctly at the negotiating table.
and-file employees of PLDT is KMU. And they just promoted
as many as they could to have the rank of Supervisors to The other side that the union will tell management: "We
get them out of KMU. So legally it is possible. But when you want a copy of the latest audited financial statement to help
study business, that is a very inefficient organization. Kay us prepare what should be our additional proposals. To let
mas daghan mag gamandar kaysa mutuo? No because that us know where our proposals are, are they in the
(supervisor) is just a legal classification. impossible? Are they in the peak? Are they in the low-
So that is the Recognition Clause. That is not an economic hanging fruits that can be granted easily by management?
provision. That's the only way. Can you provide us? If you do not
provide us, it will be very difficult for us for we might be
When you enter into Collective Bargaining Agreement, what asking for heaven and we might not know it.". Unsa may
do you start with? Non-economic provisions or economic tubag sa management? Is management obliged to give it to
provisions? the union? What does the law says? Management has the
obligation to provide the copy of the latest audited financial
AGUST 8 [ MANAAY ] statements that is balance sheet and profitable statement,
IF it is in writing. So, pagsigi lang gani silag sulti, pwede ka
Kung mag-collective bargaining na mo, mag-lingkod na mo, makaingon, "Sige, sunod natog meeting tagaan namo sa
mag-istorya na mo, muingon na sa imoha, ”Átty., unsa may financial statement". Pag kasunod meeting, "Uyyy!
pagsundan ini Atty.?” Wa ka man kahibawo unsay sinundan. Nakalimot mi." Then the union will be mad and will file a
"What are the rules?" una ka, muingon ka dayon, kay wa ka grievance. Pag-abot sa grievance, "in writing man diay".
man kahibawo kun asa magsugod. Working rules. Unsa The union must ask in writing. So the obligation, the duty
man ang working rules? Kinsa may inyong lead spokesman has not yet tolled. Wa pa magsugod kay wala may
[for the union]? Kinsa may lead spokesman nisuwat. In a decided case, that is what the SC said.
sa management? Siya na magbuot kun kinsay musulti dinhi Management has a duty, but because the union's request
dapita. Kung musulti gani siya way lain musulti. Kung mutuo was not in writing, the duty has not yet been triggered.
gani siya na may laing musulti, iya nang pagbuot. Siya syay
muputol kung human na kag sulti kay siya may magbuot. So, if there has been a history of agreement, there is no
The working rules of the negotiation, that is important, you animosity, normally the negotiations will go right to the very
begin with that. heart: ECONOMIC PROVISIONS dayon. All the other
provisions are merely cosmetic because the very heart of a
Now, supposed there has been a history sige kag CBA is ECONOMIC. So, if there has been a friendly
*inaudible* ana in the past, this one lead the union or with relationship between the union[and the management], the
management. Always is very unreasonable, always hard- negotiations will begin with economic provisions. But if the
headed, and he is the one who normally drives the relationship is hostile, pwede kung magsugod dili economic,
negotiation into an impasse. Can one party say, because of kay kung mag-economic, sungay dayon, bangga dayon,
the history of this, your lawyer, kana siya wa man na siya way human. Wa nay agi. So you start with non-economic
kahibawo unsa *inaudible* kay hindi man siya employee provisions. I am telling you that from experience.
unya sige siya magsulti, yawyaw, unya di diay siya kahibaw
unsa man iyang giyawyaw. Mahimo bag pa-absenun na lang ECONOMIC PROVISIONS
na ninyo permanently, pulihan ninyo lain? Mahimo ba na?
Can you? What is an economic provision? It is any provision in the
collective bargaining agreement which grants to the union
In the discussion of the working rules of the negotiation, can and its members and those of the bargaining unit anything
you say "This panel would like to request the opposite panel that is reducible to its peso value. If there is a peso value
to adviser na lang na siya, wa na na siya, di niyo na pag- attached to the grant. [Example] leaves, naa man nay peso
paapila, kay siya man nagdala sa pikas. The last strike ana equivalent, so it's economic.
siya man hinugdan ato." Can you do that? You might think
that cannot be done. You can do that for as long as you How about option? It is a right but it cannot be reduced to
continue to talk. You do not say "Naa pa gani siya, naa a peso value. It is a right. Let us say, salesmen in
dinhi... Di mi mutubag." You make it a condition that your pharmaceutical industries, you have an appointment, your
demand be fulfilled before there is a negotiation. That is general appointment when you first were engaged by the
refusal to bargain. But when you say, you keep on talking. company, you agreed to travel anywhere while you are
Kini mao man ni sa una, you keep discusssing. That is as assigned. But you signed that 10 years ago. Now, you have
legitimate as proposing somebody which the other party been promoted, and in this next appointment, you agreed
*inaudible* for as long as you continue to negotiate, you to travel within the Davao region. Now the salesmen are
can do it. Just like the Nestle case. They don't want to unionized and then there is a right of refusal that is now
discuss the retirement benefit anymore. They had enough proposed. If you have been successful in your original
42 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
territory and in no instance have you missed a target, then sa West London. Dal-on siya didto, nag-protest.
if you are transferred to another territory, you have a right *Comments about what the show needs is an Oriental girl,
to refuse. But if there is an upwards adjustment to your Saigon. Unsaon pag-blonde.* Karon that is also the rule in
basic, then you can no longer refuse because the original NBA. NBA Draft. Union man na ang NBA. Tan-awa si Jeremy
agreement is *inaudible* It is a modification of your original Lin, wa na may mukuha sa iya, mu-contract. Eliminated,
commitment to the *inaudible*. Is that an economic mao na nay ang makaluluoy na… He has had two 21-million
provision? Yes, it is because it can be reduced to a peso contracts. They are trying to enforce it, that is the issue of
value. It is not just an option. drafting. Later on we will see that if there is a deadlock
there is a specific rule in settling deadlocks. Last offer rule.
So, remember that rule, if you can reduce it to peso value,
it is an economic provision. Why is it important? Because on AUGUST 14 [ LUZ ]
the violations of economic provisions in the CBA, maybe the
grounds for strike if the violation is gross in title. That is the So, we are in the contents of the CBA and we distinguish
distinguishing mark, that's why you have to remember what between the instrument and the contract. The instrument is
is an economic provision. the vehicle on which the contract is riding. The moment you
have a verification, you have writing in that instrument, the
POLITICAL PROVISIONS; UNION SECURITY CLAUSES contract, the affidavit of the notary and the affidavit of the
verificator. Diba? By now you should have it memorized,
What are the so-called political provisions in the CBA? They verification.
are those which preserve the power of the union. Those
which redound to the strengthening of the union. That's why The undersigned or I, Filipino resident of such and
these political clauses are called union security clauses. such, after being deposed in this court of law, do hereby
They have a special case. Remember, the SC said union affirm:
security clauses are interpreted strictly against the union, 1. that I am the respondent in the above entitled case;
in cases of doubt. Why? Because it is a derogation of the 2. That I have read the contents of this above stated
right to self-organization in favor of the union. And between complaint;
the union and the individual worker, the heart of the court 3. That I know that the statements therein are true of
is for the individual worker. Self-organization. my own personal knowledge;

KINDS OF UNION SECURITY CLAUSES

After you sign, the notary also signs, subscribed and sworn
to. That’s also an affidavit. So, you have two affidavits
1. Open Shop Clause - which really means that there is no
there, riding on a contract.
union security clause because an open shop says that
management may hire anyone whether it is a union member
I told you that the CBA is riding on an instrument. If there
or not, and there is no obligation to continue your
is an agreement there about terms and conditions of work,
membership in the union if you are one, in order to continue
that is properly speaking an agreement that is a CBA. If
your employment. So there is an open shop for all
there is an agreement there about terms and conditions of
employees alike, union or non-union.
work but it is not covering that bargaining unit which is
represented by that exclusive bargaining agent, it might be
2. Closed Shop Clause - means the management can only
a proper agreement for a CBA but for that and for another
hire union members. If you are not a union-member, you
bargaining unit, not this bargaining unit. Because a SEBA
cannot be hired. So you must provide the hiring officer of
represents a specific bargaining unit, not any other. So, that
the management a copy of your union card to prove that
is out of the picture.
you are already a member of the union, then, you can be
hired. And you must continue to be a member of the union
If there is an agreement that is not covering terms and
if you want to continue working. Because the moment that
conditions of work, it might be an agreement but it is not
your union membership is terminated, then the union has
covered by the labor tribunals, whether the voluntary
the right to compel the management to terminate you from
arbitrator, the SOLE or the LA. They have no jurisdiction.
the service because you are no longer a member of the
So, if you want to assert it against whomever, you have to
union.
go to the proper forum. You go to the regular courts. You
go to the regular courts.
Mao man na, ha. Closed shop. That is illegal in the USA, yet
in the Philippines, that is considered legal. There is a
E.G.: Option to Buy
monopolistic source of labor. There had been attempts to
enforce that in the USA, like the Hollywood Actors Guild, dili
Like an option to buy, you cannot just assert this before the
ka gani miyembro sa union, wa ka gani nagbayad dues sa
LA. So, pay attention to that.
union, you cannot be even considered by the producer for
audition. Mag-audition ka palang sa movie, pakita ka na sa
PERSONAL CLAUSES
imong Actor's Card, kay di man ka i-consider kung di ka
makapakita sa imong Hollywood Actors' Guild. Kita dinhi
Now, personal clauses that benefit, not the bargaining unit,
mag-classify man ta og actor and actress, Didto diay pag-
not those covered by the bargaining unit, but the UNION
ingon na actor, babae og laki man na, Acterrrr. :) Unya mu-
itself. They are personal clauses. Those cover the union
insist pa sila. Tan-awa to si Lea Salonga, hapit na to.
itself. What does that cover? CHECK OFF provisions. You
Broadway na gani to. Kay nag-protest man ang mga actors
deduct the equivalent of union dues from the salary or
na di man siya member sa guild, unya nakastar naman siya
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wages of those covered by the bargaining unit. Then you evidence or not. It gives the employer the right to determine
have provisions with respect to compulsory membership or only if due process was followed. That is not giving the
compulsory retention of membership for those who are employer appellate or review powers over the union. But it
members of the union and within the bargaining unit. That seems that this ruling has been superseded by the General
is for the security of the union. That is why it is called the Milling Corporation ruling.
union security clause.
Now, Instances where the SC has shut down a particular
GENERAL RULE: Remember because it is in favor of the ruling about the union security clause. A union expels union
union and it is in derogation of the personal right to self- members and demands their ouster after their expulsion
organization, time and again, the SC has stated that this because the union members signed a petition for
clause is interpreted strictly against the UNION. certification election outside of the 60-day freedom period.
So, what happened there is a SEBA. Before the 60-day
It is not given the benefit of the doubt precisely because it freedom period, there is a rival union. So, it tries to gather
is in derogation of the right to self-organization. The land support. Why? Remember when is the discretion of the Med-
mark case for that is General Milling Corporation v. Arbiter no longer available to him when a petition for
Casio Et. Al. March 10, 2010. certification election is filed? It is when the petition is
supported by at least 25% of the bargaining unit. Then the
General Milling Corporation v. Casio Et. Al. March 10, med-arbiter no longer has discretion but to grant the
2010 petition for certification election. That is why they were
asking for support.
The SC has given here three requisites, when the union can
assert a union security clause. The SC says: There are several ways you can ask for signature support.
In terminating the employment of an employee by enforcing You can ask the people to sign the petition together with the
the union security clause, the employer needs only to union, in other words, those who sign are co-petitioners
determine and prove that: with the union. Or, you can sign a document supporting the
(1) the union security clause is applicable; petition that is filed, you are not a co-petitioner, you are
(2) the union is requesting for the enforcement of the just supporting the petition. Now, it was not the former, it
union security provision in the CBA; and was only the latter. You have a document and then you will
(3) there is sufficient evidence to support the decision just sign it. That is appended to the petition. But if you sign
of the union to expel the employee from the union. the petition, you are a co-petitioner. You can only do that
These requisites constitute just cause for terminating an during the 60-day freedom period. You are not disloyal
employee based on the union security provision of the CBA. because, it is already 60-days freedom.

This last requirement, namely, that there is sufficient Disloyalty is one of the offenses in any constitution and by-
evidence to support the decision of the union to expel the laws of a union. And that is ground for expelling you from
employee from the union, to me is problematic. Why? the union. So, these people who signed a document
Because it gives the employer review powers or appellate supporting the filing of a petition, they were maybe subjects
powers over the decisions of the union. If you can review of an expulsion proceeding and they were found guilty. And
evidence, you have appellate powers. That is precisely what they were expelled by the union. And subsequently the
the job of an appellate court is. So, it is leaving in the hands union asked that they be terminated by the employer on the
of the management the power to approve or disapprove the strength of the Union security Clause.
expulsion of a member. This makes the employer superior.
Now, this is where the SC distinguishes what is required in
Question: What was the ruling before the General Milling the LC with respect to the proceeding that should be
Case? followed before anybody can be terminated and that is
The ruling of the case before general milling, was the better Article 291 (B) – remember the procedure that has to be
ruling, in Malayan Samahan v. Ramos 326 SCRA 428 followed? When do you have a right to this procedure?
(2000).
Alhambra Industries Inc. v. NLRC
Malayan Samahan v. Ramos 326 SCRA 428 (2000)
Hence, Art. 277, par. (b), of the Labor Code of the
If there is an issue as to the application of the union security Philippines, as amended by Sec. 33, R.A. 6715, provides —
clause what is the duty of the employer? Subject to the constitutional right of workers to security of
1. To determine whether the union security clause is tenure and their right to be protected against dismissal
except for a just and authorized cause and without prejudice
applicable;
to the requirement of notice under Article 283 of this Code,
2. The union is requesting for the application of the
the employer shall furnish the worker whose employment is
union security clause in the CBA in writing; sought to be terminated a written notice containing a
3. Whether or not the procedure applied in the statement of the causes for termination and shall afford the
constitution and by-laws of the Union for giving a latter ample opportunity to be heard and to defend himself
fair hearing the employee or union member with the assistance of his representative if he so desires in
concerned has been followed. accordance with company rules and regulations
promulgated pursuant to guidelines set by the Department
In this way it does not give the employer the right to of Labor and Employment. Any decision taken by the
determine the merits of the case, like whether there is employer shall be without prejudice to the right of the
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worker to contest the validity or legality of his dismissal by
filing a complaint with the regional branch of the National AUGUST 14 [ AMPOG ]
Labor Relations Commission. The burden of proving that the
termination was for a valid or authorized cause shall rest on GRIEVANCE MACHINERY AND VOLUNTARY
the employer. The Secretary of Labor and Employment may ARBITRATION
suspend the effects of the termination pending resolution of
the dispute in the event of a prima facie finding by the Procedure on grievance machinery and voluntary
appropriate official of the Department of Labor and arbitration
Employment before whom such dispute is pending that the
termination may cause a serious labor dispute or is in Art. 260. Grievance machinery and voluntary
implementation of a mass lay-off. arbitration. The parties to a Collective Bargaining
Agreement shall include therein provisions that will
In the Samahan ng Mga Mangagawa case, the SC ensure the mutual observance of its terms and
explained there the relation between Article 291 (B), the conditions. They shall establish a machinery for the
above-mentioned procedure and the grievance procedure. adjustment and resolution of grievances arising from
What is the relation between this and the grievance the interpretation or implementation of their Collective
procedure? Is this 291(B) rendered superfluous because in Bargaining Agreement and those arising from the
the CBA there is now a grievance procedure? Maingon gani interpretation or enforcement of company personnel
ang union pahawaa gani ni sya kay gipapahawa na namo ni. policies.
Ingon dayon ang employer, di ba ta mag grievance? Is that
it? SC says NO. Because somebody is sought to be All grievances submitted to the grievance machinery
terminated, then you follow Article 291 (B). Maginvestigate which are not settled within seven (7) calendar days
ka. What is your investigation? It is to review the proceeding from the date of its submission shall automatically be
that the union had done in expelling this member, because referred to voluntary arbitration prescribed in the
that is the underlying cause. Collective Bargaining Agreement.

Now, after you have held that the proceeding was followed For this purpose, parties to a Collective Bargaining
and there is evidence according to General Milling case, then Agreement shall name and designate in advance a
you can go to grievance. Unya muingon man ang union, Voluntary Arbitrator or panel of Voluntary Arbitrators,
wala man me grievance. Is there a grievance? Who can file or include in the agreement a procedure for the
a grievance? Even if the union claims there is no grievance, selection of such Voluntary Arbitrator or panel of
there can still be a grievance. Why? Because the LC says, Voluntary Arbitrators, preferably from the listing of
Article 272 (260) – qualified Voluntary Arbitrators duly accredited by the
Board. In case the parties fail to select a Voluntary
Art. 260. Grievance machinery and voluntary Arbitrator or panel of Voluntary Arbitrators, the Board
arbitration. The parties to a Collective Bargaining shall designate the Voluntary Arbitrator or panel of
Agreement shall include therein provisions that will ensure Voluntary Arbitrators, as may be necessary, pursuant
the mutual observance of its terms and conditions. They to the selection procedure agreed upon in the
shall establish a machinery for the adjustment and Collective Bargaining Agreement, which shall act with
resolution of grievances arising from the interpretation or the same force and effect as if the Arbitrator or panel
implementation of their Collective Bargaining Agreement of Arbitrators has been selected by the parties as
and those arising from the interpretation or enforcement of described above.
company personnel policies. That is the procedure. You go to grievance, then if it cannot
be settled so you go to the voluntary arbitrator
All grievances submitted to the grievance machinery which Q. When is there a grievance? Jurisdiction of panel of
are not settled within seven (7) calendar days from the date voluntary arbitrators or final voluntary arbitrators? What
of its submission shall automatically be referred to voluntary can reach?
arbitration prescribed in the Collective Bargaining A. Only a grievance.
Agreement. Q. What can reach the panel of voluntary arbitrators?
A. Only a grievance that is unresolved. Pursuant to Article
For this purpose, parties to a Collective Bargaining 261 of the Labor Code, this is the jurisdiction of the
Agreement shall name and designate in advance a voluntary arbitrator or the panel of voluntary arbitrators.
Voluntary Arbitrator or panel of Voluntary Arbitrators, or
include in the agreement a procedure for the selection of Jurisdiction of Voluntary Arbitrators or Panel of
such Voluntary Arbitrator or panel of Voluntary Arbitrators, Voluntary Arbitrators
preferably from the listing of qualified Voluntary Arbitrators
duly accredited by the Board. In case the parties fail to
Art. 261. Jurisdiction of Voluntary Arbitrators or
select a Voluntary Arbitrator or panel of Voluntary
panel of Voluntary Arbitrators. - The Voluntary
Arbitrators, the Board shall designate the Voluntary
Arbitrator or panel of Voluntary Arbitrators shall have
Arbitrator or panel of Voluntary Arbitrators, as may be
necessary, pursuant to the selection procedure agreed upon original and exclusive jurisdiction to hear and decide all
in the Collective Bargaining Agreement, which shall act with unresolved grievances arising from the interpretation
the same force and effect as if the Arbitrator or panel of or implementation of the Collective Bargaining
Arbitrators has been selected by the parties as described Agreement and those arising from the interpretation or
above. enforcement of company personnel policies referred to
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in the immediately preceding article. Accordingly, to the grievance machinery and voluntary arbitration as
violations of a Collective Bargaining Agreement, except may be provided in said agreements.
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 224 A: is about the jurisdiction of the Labor Arbiter
Agreement. For purposes of this article, gross 224 B: speaks about the appellate jurisdiction of the NLRC.
224 C: Cases arising from the interpretation of the CBA,
violations of Collective Bargaining Agreement shall
and the interpretation of the company personnel policies
mean flagrant and/or malicious refusal to comply with
shall be disposed of by the LA by referring the same to the
the economic provisions of such agreement. grievance machinery and voluntary arbitration as may be
provided in said agreement
Situation: Suppose you go straight to the labor arbiter. Then
you allege there that there is a gross violation of the
So, the LA is ordered that if you entertain the questions of
economic provisions of the CBA, then you filed there with
the CBA, you will be disciplined, because you must refer it
the LA. You take a look 224 Jurisdiction of the LA and the
to the grievance machinery or the voluntary arbitration.
NLRC.
Many times, the LA is forced.
ARTICLE 224. [217] Jurisdiction of the Labor Arbiters
and the Commission. — Now on the TERMS OF A COLLECTIVE BARGAINING
AGREEMENT.
(a) Except as otherwise provided under this Code, the
Labor Arbiters shall have original and exclusive
jurisdiction to hear and decide, within thirty (30) ARTICLE 265. [253-A] Terms of a Collective
calendar days after the submission of the case by Bargaining Agreement. — Any Collective Bargaining
the parties for decision without extension, even in Agreement that the parties may enter into shall,
the absence of stenographic notes, the following insofar as the representation aspect is concerned, be
cases involving all workers, whether agricultural or for a term of five (5) years. No petition questioning the
non-agricultural: majority status of the incumbent bargaining agent shall
(1) Unfair labor practice cases; be entertained and no certification election shall be
conducted by the Department of Labor and
(2) Termination disputes;
Employment outside of the sixty-day period
(3) If accompanied with a claim for immediately before the date of expiry of such five-year
reinstatement, those cases that workers may term of the Collective Bargaining Agreement. All other
file involving wages, rates of pay, hours of work provisions of the Collective Bargaining Agreement shall
and other terms and conditions of employment; be renegotiated not later than three (3) years after its
(4) Claims for actual, moral, exemplary and execution. Any agreement on such other provisions of
other forms of damages arising from the the Collective Bargaining Agreement entered into
employer-employee relations; within six (6) months from the date of expiry of the
term of such other provisions as fixed in such Collective
(5) Cases arising from any violation of Article Bargaining Agreement, shall retroact to the day
264 of this Code, including questions involving immediately following such date. If any such
the legality of strikes and lockouts; and agreement is entered into beyond six months, the
(6) Except claims for Employees parties shall agree on the duration of retroactivity
Compensation, Social Security, Medicare167 thereof. In case of a deadlock in the renegotiation of
and maternity benefits, all other claims arising the Collective Bargaining Agreement, the parties may
from employer-employee relations, including exercise their rights under this Code.
those of persons in domestic or household
service, involving an amount exceeding five
thousand pesos (P5,000.00) regardless of "No petition questioning the majority status of the
whether accompanied with a claim for incumbent bargaining agent shall be entertained and no
certification election shall be conducted by the Department
reinstatement.
of Labor and Employment outside of the sixty-day period
(b) The Commission shall have exclusive appellate immediately before the date of expiry of such five-year term
jurisdiction over all cases decided by Labor Arbiters. of the Collective Bargaining Agreement." That is the
CONTRACT BAR RULE.
(c) Cases arising from the interpretation or
implementation of collective bargaining agreements So it is a five year term, before the end of the third year,
and those arising from the interpretation or you can renegotiate the last two years of the CBA. And if
you file bargaining proposal, that is a demand to negotiate
enforcement of company personnel policies shall be
and there arises a duty to bargain on the part of the
disposed of by the Labor Arbiter by referring the same
employer.

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Q. Can the union waive that right? Let's say, in the original you have Article 276, costs of the voluntary arbitration and
CBA that they have already negotiated the five years then voluntary arbitrator's fees.
they set aside their right to renegotiate the last two years.
Can they do that? ARTICLE 277. [262-B] Cost of Voluntary
A. It can be part of the negotiation. Arbitration and Voluntary Arbitrator's Fee. — The
Q. What are those rights? parties to a Collective Bargaining Agreement shall
A. They may declare strike because the strike may be based provide therein aproportionate sharing scheme on the
on the CBA deadlock. Or they may ask the intervention of cost of voluntary arbitration including the Voluntary
the Sec of Labor. Or the parties may ask the NCMB to
Arbitrator's fee. The fixing of fee of Voluntary
intervene. There are many possibilities.
Arbitrators, or panel of Voluntary Arbitrators, whether
Just remember that it is not only the union who can bring a shouldered wholly by the parties or subsidized by the
grievance. It can be the party itself, it can be any group of Special Voluntary Arbitration Fund, shall take into
employees, they can bring a grievance. It is not the union account the following factors:
who determines exclusively whether or not there is a
grievance. (a) Nature of the case;
(b) Time consumed in hearing the case;
(c) Professional standing of the Voluntary
So, if the aggrieved brings a grievance, the management
Arbitrator;
must comply to the grievance machinery and it has to end
(d) Capacity to pay of the parties; and
in a voluntary arbitration.
(e) Fees provided for in the Revised Rules of
EXCEPTION: WHAT IS THE EXCEPTION TO THAT Court.
RULE?
So kung papilion ka, magbayad o di magbayad? Didto ka sa
If it is a DISCIPLINARY CASE. The grievance machinery di magbayad that’s why they want it in the LA.
ends with the management not changing its mind. If the
management does not change its mind with respect to a Enforcement. Implementation of the company's personnel
disciplinary case and still order the dismissal of the policies. That is disciplinary. You have the CBA where if the
employee after the grievance machinery, the grievance management acts, normally, the union will contest but the
need not proceed with voluntary arbitration. It can go to the management first has to conduct its duty under the
LA. Why? Because termination is one of the original and termination clause. Conduct an investigation then the
exclusive jurisdiction of the LA. That is the exception management will make its decision. The investigating
committee will conduct on its own, that it says it will accept
Normally, the union would like the issue of termination the recommendation that you will be dismissed for culpable
brought before the LA. Why? Dili sila gusto ug voluntary action of theft. Then you will raise a grievance but it will not
arbitrator even if it is the natural course of a grievance. But be the basis of the union. If the union will raise a grievance,
in cases of termination, they prefer to go to the LA. then employee himself may invoke grievance on the CBA.
Q. Why is that? Why do they (union) like to go to the LA? That is valid. Any employee can invoke the grievance
A. Take a look at 224, under letter A, the original jurisdiction machinery, so the management to conduct a complete and
of the LA. expeditious and in good faith to adjust the grievance. It will
ARTICLE 224. [217] Jurisdiction of the Labor hear. Kasagaran ana nga question, muingon sa
Arbiters and the Commission. — (a) Except as management. Muingon ang union na lider ra ba nami na
otherwise provided under this Code, the Labor ipabilin lang ni siya. Maayo unta na ordinaryo nga member
Arbiters shall have original and exclusive pero lider ra ba, mao gyud nilihok sa CBA.
jurisdiction to hear and decide, within thirty (30)
calendar days after the submission of the case by Q. Can you not make a usual exception for the employee?
the parties for decision without extension, even in That is usually the argument, if the management can make
the absence of stenographic notes, the following an exception.
cases involving all workers, whether agricultural or A. Muingon ang management, if we make an exception then
non-agricultural: it will become a precedent. Subsequent times you will keep
(1) Unfair labor practice cases; on citing this.
(2) Termination disputes;
xxx Q. What if the union says: We will consider this as not a
prcedent. We will sign that this will not be a precedent, that
The LA does not lose its jurisdiction just because there is we will not consider it as a precedent. We will agree in
grievance that has been followed. Why does the union want writing. Can the union do that? What is the value of that
to go to LA after the grievance? If ever, mag retrial na pud argument?
sa LA, Why not in the voluntary arbitrator? Because in the A. That is a question of waiver. Is that a valid waiver? That
voluntary arbitrator has to be paid. Libre man ang labor is valid for you, but can you waive a subsequent right of the
arbiter. The union is not flowing with milk and honey, it does workers? Can you waive their right to invoke this as a
not have too much money. If and when the union goes to a precedent just because you put in an agreement that you
voluntary arbitrator. Normally the union applies for a are waiving your right. You might be able to waive your
subsidy. Normally, the fees of the voluntary arbitrator fees right, the present membership of the union may waive such
is split, it is divided among the union and the employer. So right but for the future workers, cannot speak on their

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behalf. Do you have a power of attorney? You cannot, show them, he dismissed them. The SC says that is unfair labor
your power of attorney because maybe the workers of the practice. What you receive is a grievance. You should have
future are not yet born. sat down to a justice grievance. You should have talked
because these are people who need to negotiate with. Then
AUGUST 14 [ ALABAN ] the SC said collective bargaining does not end with CBA; it
is a continuing and never ending process. You continually
I would like to bring to your attention Art 266. negotiate.

Art. 267. Exclusive bargaining representation and You now have a very stratified idea of exclusive bargaining
workers’ participation in policy and decision-making. agent. The union is not even exclusive in filing a case with
The labor organization designated or selected by the the labor tribunals with respect to the claims or complaints
majority of the employees in an appropriate collective of its members or of those in the bargaining unit. First of all
bargaining unit shall be the exclusive representative of the the union can only file a case for and in behalf of its
employees in such unit for the purpose of collective members. That decision of the tribunal, if it becomes final
bargaining. However, an individual employee or group of and executory, it will benefit even though who are not
employees shall have the right at any time to present members as long as they are in the BU and they are similar
grievances to their employer. situated as those that the union represented. There is an
automatic representation. But the union is not exclusive
Any provision of law to the contrary notwithstanding, there can be somebody who stands out and says “I will sign
workers shall have the right, subject to such rules and a compromise agreement”. The union cannot prevent that.
regulations as the Secretary of Labor and Employment may Here the union is no longer exclusive as representative in
promulgate, to participate in policy and decision-making filing a case, or in the filing of a grievance. When is it
processes of the establishment where they are employed exclusive? Only when negotiating CBA… that is when it is
insofar as said processes will directly affect their rights, truly exclusive. In the end, the employee or union member
benefits and welfare. For this purpose, workers and really has no right to claim representation on the part of the
employers may form labor-management councils: Provided, union. “Tabangi ko.” The union then says “We do not believe
That the representatives of the workers in such labor- you have a grievance, so you have to bring your own
management councils shall be elected by at least the grievance.”
majority of all employees in said establishment.
Which is different from the ruling the US. In the US, if the
“The labor organization designated or selected by the union does not believe theres no grievance, it still has the
majority of the employees in an appropriate collective duty to provide counsel, so that they union member will not
bargaining unit shall be the exclusive representative of the be punished or will not suffer a loss more than what he is
employees in such unit for the purpose of collective legally merited. Di sila mutuo nga wala kay sala, but you
bargaining.” — That is not true; that is belied by the still have the obligation to provide counsel to make sure the
succeeding sentence. The succeeding sentence says “an union member is not punished. That is a sacred duty like a
individual employee or group of employees shall have the duty of a legal counsel. Kahibaw ka na guilty ang imong
right at any time to present grievances to their employer.” cliente. Are you obliged to legally ethically continually to
defend him? Yes. Why are you defending him even though
The presentation of grievance is collective bargaining. you already know that he is guilty? The Positivists wills say
When is the exclusivity of the collective bargaining that that is not for you to judge whether or not he is guilty;
agent? The exclusivity of the collective bargaining agent is that is for the judge to decide. What you have to do is to
only in negotiating the CBA but in filing a grievance, any look for evidence to exculpate him. And other side will look
individual or group of employees may file a grievance; they for evidence to convict him and in the clash of these two
do not depend on their union. forces, the truth will prevail. If you are a natural law legal
philosopher, you will say even if I know that the is guilty, I
Does the Exclusive bargaining agent owe their have the duty to defend so that he will not be punished more
members or their constituents in the bargaining unit than his guilt demands. I have the duty to make sure na dili
the duty to represent them in grievance? NO because sya kastiguhon sobra sa iyang nahimo nga kadaot. That is
if they want they can bring their own grievance. If the union the natural law philosophical basis why you have to continue
believes there is no grievance, they have no duty to bring a defending the guilty.
grievance. If the employee truly believes he has grievance,
he will bring his own grievance. Kining ato dinhi, giusab nato ang National Labor Relations
Act… gitagaan na na ug “free for all”… Anybody can bring a
He can bring his own counsel/lawyer to represent him. It’s grievance. The union maayo lang na sa negotiations pero
no long exclusive bargaining agent. And yet grievances is a kung makakuha na ug union dues, wa na… notorious kayo
form collective bargaining. Authority on that? Republic ng mga union. They do not fight grievances that much,
Savings Bank. The Supreme Court said that collective unless the grievance involves a lot of money because the
bargaining does not end with CBA. The complaint of the law relieves them of their duty.
officers was against the president: ”You are no good
president; you are abseniro; you have a mistress who is the [There have been a general classification of] 2 KINDS OF
secretary who is also the member of the union, etc.” You GRIEVANCES AND DISPUTES
want chismis? You read the case. The SC said that when the A. Rights disputes
President received the complaint, he investigated the B. interest disputed
officers who signed the complaint. After he investigated
48 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
RIGHTS DISPUTES namo mapadako ang market kay nia ra man ta sa Pilipinas
nya mao ra man ning maximum sa population). Mao na
Rights disputes is the determination of who is right and who kung ordinary nga abogado ka nga mubuhat ka ug position
is wrong and whose right soul prevail. paper over a deadlock, know that you have reached your
limit if you have no background in accounting, economics,
Example: disciplinary case. Gisumbong ning employee, or any of the social sciences because that is what you are
nangawat sya. Naay nawala. Unsa man ang relation sa going to cite, that will make sense. You are going to say “I
employee na gisumbong sa nawala? Sya mao ang in charge can no longer give na increase because I am operating at
sa bodega nga diin to gibutang ang nawala. He has the duty a loss”, then you produce your audited financial statements.
to safeguard the property that is lost, or property owned by After that, then you attach pro forma statements. You
the employer. The question is: was it lost because of his project from the audited historical financial statements.
negligence or because of his wilful act? Misfeasance or That is a pro forma statement. The management will then
malfeasance? Mao ng language sa Revised Penal Code. Sa say “We cannot live on what you are asking. Look at the
Civil Code, negligence (kadanghag) or wilful act (tinuyuan deficit… it becomes larger and where do we get the money
binuhatan). Wilful act mas bug-at man na kesa na to pay you?” Muingon ka [union] “Hulam! Sige ug hulam!”
kadanghag. So you decide and arrive at a decision. [Managment will then respond “Di man na mahimo. You are
asking us to extract a blood from a turnip [singkamas]. Di
According to commentators, between rights dispute and na mahimo.” Ang union sad muingon “Sa ngalan sa kaluoy
interest dispute, the rights dispute is easier because it ug tawhanong pagtagad, kami nag kinahanglan niini.”
follows the rules of evidence, the rules of guilt merit etc.
You read the PAL & PLDT cases. Do you know what the SC
INTEREST DISPUTE does to decide deadlock cases? They just stretch it until
finally they come up with a decision. And they say “this is
In interest dispute more complicated because clearly the correct decision” because it is already hindsight. It’s
speaking there is no right or wrong. already 10 years after the controversy erupted. What they
are actually deciding is they have hindsight. Then they will
Example: A deadlock. The union says “we are asking for an say “sayop ka! Ikaw sayop ka!” but it’s already 10 years
increase of 100 pesos of our daily rate.” “Pila naman inyong past the deadlock. Of course correct ka gyud kay nahuman
daily rate?” “300. Nangayo mi ug 100 pesos increase, so naman. There are new realities. So they will say that
400 na.” Unsa man ng increase-a? 33.33% of your original management is correct but the union is correct. If you care
wage. 33.33% lang ba ang increase? Dili. That is not just to read, there is this case about Philippine Airlines. It’s one
33.33% kay kung tan-awon nimo ang budget sa employer, of those anomalies of the SC because there’s already a
musaka man ang overtime pay, 13th month pay, legal decision and the decision was overturned by a simple letter
holiday pay. Pasaka ng pasaka. Those are called rolled-up written by a prominent lawyer, Estelito Mendoza, lawyer of
costs, tungod sa saka mudako sila, mu-snowball ba. The Lucio Tan. He writes that letter and the case which has been
muingon ang management “ang mahatag namo kay 10 decided for over 2 years is all of a sudden is vacated and
pesos per day increase kay kung patung-patungon nimo na revisited by the Court En Banc.
that 10 pesos equivalent to 20 pesos increase and that is
equivalent to a 20% increase in our budget” Muingon ang AUGUST 14 [ DELA CERNA ]
union “dili… kay kami nagtan-aw mi sa among pamilya.
Family of 5… magtiayon… 3 kabuok anak. Paskewlahon There is this case of Philippine Airlines and it is one of those
nimo, ma dengue, dal-on sa hospital. Mao kini ang among anomalies of the Supreme Court. That really leaves a bad
gikinahanglan. So 100.” Muingon ang management “10.” taste in the mouth… because there’s already a decision and
“100.” “10.” Deadlock! That is the dispute. What is correct? the decision was overturned by a simple letter written by
Between 10 and 100, between 2 points, according to Estelito Mendoza (the lawyer of Lucio Tan). He writes that
Einstein, the distance is infinite. Why is the distance infinite letter and the case which has been decided for over two
between 2 points? Mathematically, it is infinite, because you years is suddenly vacated and revisited by the Court.
can always divide the distance by 2 no matter how close it
is. Mathematically ma-divide man gyud na nimo. The Ikaw abogado ka, maglisud man gani ka’g file og motion for
chances of a correct decision is infinite. 10 vs 50 pesos… 10 reconsideration kay ang original motion for reconsideration
vs 70 pesos… hantud muabot ka 100. What is correct? Di nimo annuled by the Rules of Court, once that is denied you
man na pareho sa situation where you will find somebody can no longer file a motion for reconsideration with the
who is right or wrong. In the interest dispute, the leeway is Supreme Court, unless you file a leave of court to file a
so wide, it is difficult to find the correct answer. All you can motion for reconsideration and that is heard by the Court.
do is strive to arrive at a decision that will make all the Mangayo paka’g permiso. Ordinary courts, mufile ka’g 2nd
parties in the correct place. Livable to the parties motion for reconsideration, mufile ka’g motion pero iattach
concerned: the employee, the employer, the union the na nimo ang 2nd motion nimo for reconsideration.
government etc. That is the aim in an interest dispute. Maghearing pa pero kung naa naa, attach na aron tan-awon
sa huwes kung iya bang I-grant. Pero sa SC, you will be held
Mao man ng mahitabo sa bargaining deadlock. Your in contempt kung iinclude na nimo saimung for 2nd motion
attachments to your position paper are not legal for reconsideration tas iattach ra nimo imung brief sa 2nd MR
arguments; what are they? they are basically business (In ordinary courts, when you file a 2nd MR, you still file a
documents. Mao ning history sa revenue. Mao ni ang motion but you can already attach your brief for that. There
markets. Mao ning gipangayo ninyo nga saka [increase], will still be a hearing but if you have the brief of your 2nd
nagkinahanglan na padak-on ang among market. Di man MR, attach it so that the judge can decide if he will grant it.
49 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
In the SC, if you do that you will be held in contempt of There was no reason to drastically implement a
court). permanent retrenchment scheme in response to a
temporary strike, which could have ended at any time,
Estelito Mendoza, he just writes a letter pointing out the or remedied promptly, if management acted with
irregularities why this was decided by a special division. alacrity. Juxtaposed with its failure to implement the
Estelito: “These are your internal rules and it is no secret required cost-cutting measures, the retrenchment
and you did this.” And the Court vacates that decision and scheme was a knee-jerk solution to a temporary
then puts it En Banc. After the court puts it En Banc, it problem that beset PAL at the time.
overturns that decision.
PAL must still prove that it implemented cost-cutting
Kinsa may nisulat atong original decision? Si Santiago, ang measures to obviate retrenchment, which under the law
Ombudsman. Carpio-Santiago. Mao ’tong misuwat sa should be the last resort. By PAL’s own admission,
original PAL decision. Motion for Reconsideration, however, the cabin personnel retrenchment scheme
Resolution, mao gyapon [si] Santiago. Pagretire ni was one of the first remedies it resorted to, even before
Santiago, suwat dayun si Estellito Mendoza. Then the court it could complete the proposed downsizing of its aircraft
announced it’s vacated. There is no justification in the Rules fleet.
of Court. Maong maghilak ka usahay kay makalimtan ra
man nila. They will not consider it anymore. And then it’s in The retrenchment scheme under scrutiny was not
the books. triggered directly by any financial difficulty PAL was
experiencing at the time, nor borne of an actual
FASAP vs. PHILIPPINE AIRLINES implementation of its proposed downsizing of aircraft.
RESOLUTION
SPECIAL THIRD DIVISION IN RE: LETTERS OF ATTY ESTELITO P. MENDOZA
G.R. No. 178083. October 2, 2009 EN BANC
Ynares-Santiago, J. G.R. No. 178083. March 13, 2018
Bersamin, J.
Facts: Cabin crew personnel were covered by the
retrenchment and demotion scheme of PAL due to Contention of FASAP:
financial distress which is evidenced by proof of its FASAP asserts that PAL’s Second Motion for
claimed losses in a petition for suspension of payments, Reconsideration of the Decision of July 22, 2008 was a
as well as the Order of the Securities and Exchange prohibited pleading; and that the July 22, 2008 decision
Commission (SEC) approving the said petition for was not anymore subject to reconsideration due to its
suspension of payments, together with proof having already attained finality.
of summary of its debts and other liabilities.
Held:
Exercising its management prerogative and sound PAL's Second Motion for Reconsideration of the
business judgment, it decided to cut its fleet of aircraft Decision of July 22, 2008 could be allowed in the
in order to minimize its operating losses and rescue higher interest of justice. - We should stress that the
itself from “total downfall;” which meant that a rule prohibiting the filing of a second motion for
corresponding company-wide reduction in manpower reconsideration is by no means absolute. Although
necessarily had to be made. As a result, 5,000 PAL Section 2, Rule 52 of the Rules of Court disallows the
employees (including the herein 1,400 cabin filing of a second motion for reconsideration,
attendants) were retrenched. the Internal Rules of the Supreme Court (IRSC) allows
an exception, to wit:
PAL, however, gave a whole different reason for Section 3. Second motion for reconsideration. -
retrenchment when the pilots went on strike. The Court shall not entertain a second motion for
Accordingly, what really brought about “the really reconsideration, and any exception to this rule can only
perilous situation of closure was that on June 5, 1998, be granted in the higher interest of justice by the
the pilots went on strike, ninety (90%) per cent of the Court en bane upon a vote of at least two-thirds of its
pilots went on strike, approximately six hundred (600).” actual membership. There is reconsideration "in the
These pilots’ strike was so devastating x x x. Without higher interest of justice" when the assailed decision is
any pilots no plane can fly, your Honor, that is the stark not only legally erroneous, but is likewise patently
reality of the situation, and without airplanes flying, unjust and potentially capable of causing unwarranted
there would be no place for employment of cabin and irremediable injury or damage to the parties. A
attendants. second motion for reconsideration can only be
entertained before the ruling sought to be reconsidered
Issue: Whether or not the strike, which PAL used as becomes final by operation of law or by the Court's
basis to undertake the massive retrenchment under declaration.
scrutiny, is an authorized cause.
In the Division, a vote of three Members shall be
Held: The strike was a temporary occurrence that did required to elevate a second motion for reconsideration
not necessitate the immediate and sweeping to the Court en banc.
retrenchment of 1,400 cabin or flight attendants. The conditions that must concur in order for the Court
to entertain a second motion for reconsideration are the
following, namely:
50 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
Doe’ to ‘Pedro Santos’ because he has now been identified
1. The motion should satisfactorily explain why granting by the witnesses.
the same would be in the higher interest of justice; Judge: Order. After the witness has positively identified the
2. The motion must be made before the ruling sought accused as Pedro Santos, this court now orders the formal
to be reconsidered attains finality; amendment of the information
3. If the ruling sought to be reconsidered was rendered
by the Court through one of its Divisions, at least three Formal ra man na. Di man na substantial amendment.
members of the Division should vote to elevate the case Substantial ng nangusi siya tas murder. Substantial na. Mao
to the Court En Banc; and na na, di gani na maingon ug ‘Slight Physical Injury’, ‘Unjust
4. The favorable vote of at least two-thirds of the Vexation’ ra na. Kanang murder, wa na, bitay na. Patay ka
Court En Bane’s actual membership must be mustered ana. Substantial na (That is only formal. That is not
for the second motion for reconsideration to be granted. substantial. An example of a substantial amendment is
when a person merely pinches someone and you change the
The arguments of PAL sufficed to show that the assailed designation of the crime to murder. That’s not even slight
decision contravened settled jurisprudence on PAL’s physical injury but merely unjust vexation. In murder, you
precarious financial condition. It cannot be gainsaid that will be hanged. In that case, you’ll end up dead. Therefore,
there were other businesses undergoing rehabilitation it is substantial).
that would also be bound or negatively affected by the
July 22, 2008 decision. Review of Civil Procedure (just in case):
Test/Standard to Treat as Formal Amendments: WON
prejudice is caused thereby to the adverse party. If the
INTEREST DISPUTE vs. RIGHTS DISPUTE defense of the adverse party would substantially change, it
would no longer be a formal amendment.
Question of 300 flight attendants and stewardesses:
Whether they were rendered redundant or terminated XYZ Corporation at Samahan ng Manggagawa sa XYZ-KMU.
because of loss. Hain mana sila? Pangitaon na nimo. Kining mga tawhana na
naglingkod diri? Ang general manager ug presidente sa
That’s the issue. Interest dispute versus Rights Dispute. union mao na sila? Dili! (Where are they? Are they the ones
Remember, the trier of facts in a RIGHT dispute just has to sitting here? The general-manager and the president of the
find out who is in the right, who has weightier evidence. But union? No!). They are just representing those [artificial
in an INTEREST dispute, you have to come up with a beings].
RESOLUTION, NOT a decision, that is livable for all parties.
Why in heaven’s name are they artificial beings? Ngano di
Another example of interest dispute is wage distortion. You nalang man na sila buhatong tawo? Kita, sa kakitid sa atong
restore it to the historical? Cannot be. It’s impossible for huna-huna, wa ta ni-appreciate sa niagi ng history sa liga.
many corporations to restore an original gap that was Kung buhaton natong tinuod nga tawo maigo mana sila’g
existing before the wage distortion. So what will it be? kilat og kalit. Hain naman atong parties? Wa na. Mawala. Di
Between two points the distance is infinite. You have to mana mainherit kay di mana succession (Why won’t we just
determine. make them natural persons? Because of our narrow-
mindedness we have failed to appreciate the history of the
league (baranggay). If we make them natural persons, they
WHEN IS A CBA EFFECTIVE?
are susceptible of being hit by lightning. When that
happens, where are our parties? Gone. And those positions
When it is signed by the contracting parties. Who are the cannot be inherited because those are not covered under
contracting parties? The contracting parties are the succession). That is why it has to be an artificial person
exclusive bargaining agent, the union, and the employer. representing the employees. It is an artificial being that
They are represented by natural persons--both parties. Both represents the employer too because of the vagaries of life.
parties are juridical persons--artificial beings. They have no Mamatay ka man. Mawala ka. Labi na ang mga employees.
physical reference. You are not an artificial being because They can come in and out. They cannot even be forced to
you occupy space and time. Masking mawala imung ngalan, work bisan advance-an pa nimo na sila’g sweldo. Prohibition
ikaw na. Mao ng mahimo kang pasakaan ug sumbong nga against involuntary servitude. Because it is an artificial
John Doe. Nakit-an ka na pero wala ka pa mailhi (Even if being, then there is a need for natural persons to speak for
your name is not there, that’s you. You can be made an them, to negotiate for them. Murag doble na diba? There’s
accused in a criminal information under that name ‘John a bargaining unit which is already nebulous and you have
Doe’. You were seen [by the witnesses] but you were not an artificial being that is the exclusive bargaining agent of
yet known). “People vs. John Doe”. Your name is not as this, and then you have a panel of natural persons--warm
much a reality as your physical existence. Makit-an ka gani, bodies--that will sit at the negotiation tables. Tulo ka levels
madakop ka, mada ka sa korte (If you are seen and you are na na. And the law says you can only deal with these. You
caught, you will be brought to court). cannot deal with the principal. You can only deal with the
bargaining agent, the panel, the officers sitting at the table.
Judge: What is your name?
You: Pedro Santos Who can do wrong in the negotiations? Is a wrong that the
Counsel of the Prosecution: Your Honor, may we request an panelist does binding on the bargaining agent?
amendment to the complaint and information? Change ‘John

51 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
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 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
SAMAHANG MANGGAGAWA SA TOP FORM "executing a contract incorporating such agreements if
MANUFACTURING UNITED WORKERS OF THE requested by either party." Petitioner union's assertion
PHILIPPINES (SMTFM-UWP), its officers and that it had insisted on the incorporation of the same
members, petitioners, proposal may have a factual basis considering the
vs. allegations in the aforementioned joint affidavit of its
NATIONAL LABOR RELATIONS COMMISSION, members. However, Article 252 also states that the
HON. JOSE G. DE VERA and TOP FORM duty to bargain "does not compel any party to agree to
MANUFACTURING PHIL., INC., respondents. a proposal or make any concession." Thus, petitioner
G.R. No. 113856. 295 SCRA 171. September 7, 1998 union may not validly claim that the proposal embodied
Romero, J. in the Minutes of the negotiation forms part of the CBA
that it finally entered into with private respondent.
Facts: The charge arose from the employer's refusal to
grant across-the-board increases to its employees in Petitioner union does not deny that discussion on its
implementing Wage Orders Nos. 01 and 02 of the proposal that all government-mandated salary
Regional Tripartite Wages and Productivity Board of the increases should be on an across-the-board basis was
National Capital Region (RTWPB-NCR). Such refusal was "deferred," purportedly because it relied upon the
aggravated by the fact that prior to the issuance of said "undertaking" of the negotiating panel of private
wage orders, the employer allegedly promised at the respondent. Neither does petitioner union deny the fact
collective bargaining conferences to implement any that "there is no provision of the 1990 CBA containing a
government-mandated wage increases on an across- stipulation that the company will grant across-the-
the-board basis. board to its employees the mandated wage increase."

Contention of Private Respondent Top Form: With the execution of the CBA, bad faith bargaining can
Private respondent, on the other hand, contended that no longer be imputed upon any of the parties thereto.
in implementing Wage Orders Nos. 01 and 02, it had All provisions in the CBA are supposed to have been
avoided "the existence of a wage distortion" that would jointly and voluntarily incorporated therein by the
arise from such implementation. It emphasized that parties. This is not a case where private respondent
only "after a reasonable length of time from the exhibited an indifferent attitude towards collective
implementation" of the wage orders "that the union bargaining because the negotiations were not the
surprisingly raised the question that the company unilateral activity of petitioner union. The CBA is proof
should have implemented said wage orders on an enough that private respondent exerted "reasonable
across-the-board basis." It asserted that there was no effort at good faith bargaining."
agreement to the effect that future wage increases
mandated by the government should be implemented Issue 2: Whether or not there was a significant wage
on an across-the-board basis. Otherwise, that distortion of the wage structure in private respondent
agreement would have been incorporated and expressly as a result of the manner by which said wage orders
stipulated in the CBA. were implemented. -NO.

Issue 1: Whether or not private respondent committed Held: The issue of whether or not a wage distortion
an unfair labor practice in its refusal to grant across- exists is a question of fact that is within the jurisdiction
the-board wage increases in implementing Wage Orders of the quasi-judicial tribunals below. Factual findings of
Nos. 01 and 02. -NO. administrative agencies are accorded respect and even
finality in this Court if they are supported by substantial
Held: With respect to the first issue, petitioner union evidence.
anchors its arguments on the alleged commitment of
private respondent to grant an automatic across-the- We find no reason to depart from the conclusions of
board wage increase in the event that a statutory or both the labor arbiter and the NLRC. It is apropos to
legislated wage increase is promulgated. It cites as note, moreover, that petitioner's contention on the
basis therefor, the aforequoted portion of the Minutes issue of wage distortion and the resulting allegation of
of the collective bargaining negotiation on February 27, discrimination against the private respondent's
1990 regarding wages, arguing additionally that said employees are anchored on its dubious position that
Minutes forms part of the entire agreement between the private respondent's promise to grant an across-the-
parties. board increase in government-mandated salary benefits
reflected in the Minutes of the negotiation is an
The basic premise of this argument is definitely enforceable part of the CBA.
untenable. To start with, if there was indeed a promise
or undertaking on the part of private respondent to Father’s Version of the Facts: I told you about this
obligate itself to grant an automatic across-the-board case already. A proposal made during the CBA
wage increase, petitioner union should have requested negotiations, agreed to by the parties. Not denied by
or demanded that such "promise or undertaking" be the parties subsequently but there was a failure to
incorporated in the CBA. After all, petitioner union has include it in the written CBA. What was the agreement?
the means under the law to compel private respondent A promise or undertaking on the part of employer to
to incorporate this specific economic proposal in the grant an automatic across-the-board increase. Included
CBA. It could have invoked Article 252 of the Labor Code to the wage order even if the bargaining unit was no
defining "duty to bargain," thus, the duty includes longer entitled to the wage order. Over and on top of
52 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
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ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
what was agreed on here. The trouble was it was not Union ka, obliged ba ka to multiply copies so that you can
included in the CBA. give each member a copy of the CBA for his own education
and knowledge of the CBA? Kung masayop diay imung copy.
Issue: When was the CBA effective? Karun scan naman na, less chances of mistake. Naa gani
kausaban ana, malicious na na. Naa’y laing gustong
Held: All these agreements made during the mudugang ana. If there is a disagreement, which copy is
negotiation are tentative agreements. They can be controlling? It’s the copy that you submitted to the DOLE.
changed in consideration of another agreement. That is the certified copy.

Related Commentary: Let’s just keep it confidential Unsa man diay mausab nimo ana? Ang petsa. Lisud na
because you raise false expectations. ‘Nya mabalhin pa (What can you possibly change/alter? The date. That’s
man na. Mahimo pa man ng ilisdan. Tas nag-agree ka dangerous).
run dinhi, tag-as kaayo’g increase parehas anang
Cathay Pacific. Cancel imung 500 flights, tulo na ka AUGUST 22 [ MANLIGOY ]
adlaw, tungod anang demonstrations sa HongKong. Sa
Kasuko sa mga member sa union nga di madayun ilang We will start today with Voluntary Arbitration. That is the
bargaining, niapil sila sa demonstrators. Tan-awa, pag- end proceeding for a grievance procedure. You end that with
apil nila sa mga demonstrators, ang mga hari ngadto sa Voluntary Arbitration.
Beijing, they sent word, “Kana silang mga nangapil, kick
out na na sila. Di na na sila kabalik sa trabaho.” Nya Voluntary Arbitration
naa may nibalik taga Davao intawon. 22 years na siya
sa Cathay. Ngano nakablik man siya? Ning-adto nalang The voluntary arbitrator, the Department of Labor has been
tawon siya sa Macau pauli diri. training voluntary arbitrators and you can choose or provide
the procedure for choosing voluntary arbitrators and the
You agree to something in the negotiation. Things changed grievance machinery but if you cannot choose then the new
after that. When do you have an agreement? Daghan na’g law now says that the NCMB or the National Conciliation and
stages. There are still post-signing formalities. Chief Mediation Board will appoint a voluntary arbitrator. The
representative of employer signs together with these grievance machinery can also provide for a panel of
representatives of the union. Daghan man gyud ng union. voluntary arbitrators to settle disputes that go through the
Magpicture taking niya mangaon mo. Apil ang reporter og grievance machinery and remained unresolved.
mga ABS-CBN. Is there an agreement? NOT YET because
the law requires that the CBA must be posted in 2 But if you ask me, and even if you don’t ask me, I am telling
conspicuous places at the workplace for the bargaining unit you that it is a waste of money because you pay voluntary
employees to read. And then, after reading it, they have to arbitrators. So if you have a panel, the first one is chosen
ratify. The majority of the union must ratify. by the union and the other is chosen by the employer, and
the two choose a 3rd one. Normally, the choice of the union
‘Nya muingon ka, exclusive bargaining agent, ngano will defend the union. The choice of the employer will defend
kinahanglan pa ma’g ratification? There is another thing as the employer. Ultimately, it is just presided by one, the
to the conclusion of the CBA, the representative is really not choice of the two. It is better to choose just one. You only
exclusive. It is only exclusive in the negotiations but in the pay one voluntary arbitrator.
final agreement, the majority of the union must ratify it.
Can you name a specific voluntary arbitrator in the
Because of the dicey nature of ratifying a CBA, they grievance machinery? Yes you can but on your own peril. A
invented what is called a ‘signing bonus’. “The CBA collective bargaining agreement (CBA) is good for 5 years.
provides, management hereby agrees to grant a signing If in the duration of the 5 years, your choice of the voluntary
bonus of P3,000.” Ah wa na, mag-una pa ng employee. “Aha arbitrator is hit by lightning and he dies, what happens? You
naman akong P3,000?” have no voluntary arbitrator. So, it’s best that you do not
have a voluntary arbitrator by name. You provide for a
Chismis Only: Kanang signing bonus, manghatag gani ka’g mechanism of choice.
signing bonus, tig-singkwenta imung hatag ana para dugay
jud ba, daghan jud ba. Kay kung 500, ay kadali mahuman. How do you do that? There are several kinds and ultimately,
Sigurado ka anang it’s not just majority; it’s everybody. if your procedure does not work, the NCMB will appoint one.
100% will sign the ratification. So, it’s not a tragedy. It’s not an irreversible mistake if you
do not provide an efficient mechanism for the appointment
Once it is ratified, there is an agreement. Whether that of a voluntary arbitrator because the NCMB can appoint one.
agreement is certified is another issue because you have to
register the CBA now with the Department of Labor. Once it I am a Voluntary Arbitrator but it has been about 10 years
is registered there, it bears the stamp of state approval. since I had a case. I normally decline. I decline the case
because I don’t want to make enemies.
‘Nya maglalis mo, what is the wording of the CBA. Katong
copy na gisubmit ninyo in triplicate to the Department of Appointment of a Voluntary Arbitrator
Labor, that is the controlling language and terminology of a
contract. Who can be appointed? Anybody can be appointed. Even if
you are not an accredited voluntary arbitrator, you can be
appointed.
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accepted her. She is supposed to have finished law and
Suppose you are a Labor Arbitrator, can you be appointed Bacungan wanted her to graduate because the parents are
as a Voluntary Arbitrator? There is already a decided case. going to attend the graduation. But she could not graduate
The Supreme Court says YES, you can be appointed. It’s a in UP because UP will not give her a law school diploma
tribute to you. The people choose you. In the US, it is called because in the first place, she should not have been
rent a judge. Many people are of the opinion that this is the accepted. What did Bacungan do? Bacungan held a special
way adjudication is moving. It accords the parties graduation ceremony just for UP graduates for that year and
appointing their judge because the State’s system takes too they held it in Meralco auditorium. That’s how Imee Marcos
long. went up the States and received what purported was a
diploma, a rolled up bond paper with a ribbon and she was
For instance, at the moment, if you have marine insurance, seen there that she received a diploma. Bacungan thought
the marine insurance is practically all insurance except life. that by doing that, he would become a Supreme Court
Marine insurance, tanan na na marine. I am not talking Justice but he did not make it. Marcos did not try to appoint
about the marines but marine insurance. If you have him because he would not have passed the Commission of
reinsurance and it’s marine insurance, normally the Appointment. Before at that time, there was confirmation.
reinsurer will not sign on the policy unless there is proviso Justices of the Supreme Court had to be confirmed by the
for arbitration. Joint Committee for confirmation of Congress and the
Senate. Bacungan used to come here to conduct lectures.
Kanang mga eroplano sa Cebupacific, Philippine Airlines, He is a learned scholar, a true Ilocano.
they are all marine insurance even if (?) naglupad na, dili
na marine insurance. It is covered by arbitration clause Why is Bacungan famous? He is the first Voluntary
because if there is any difficulty, it (?). The only problem is Arbitrator that was the subject of a mandamus. What is a
the arbitration clause can only be carried out in the mandamus? It is a special proceeding directed at a
Philippines (wala ko’y nahibal-an na arbitration clause na government official to command him to do something
musalig sila sa Pilipinas). So, where is the marine ministerial. How can a civilian, like a voluntary arbitrator,
insurance? Before the turn over of the UK of Hongkong to be the subject of a mandamus? That is when the Supreme
the People’s Republic of China, it used to be HongKong but Court said that Voluntary Arbitrator even if he is not
now, they do not trust HongKong also because it is so close appointed office is holding a quasi-public office. He is a
to mainland and the mainland is very famous for grave quasi-public official. His or her decision, once it becomes
injustice. The closest now for arbitration is in Singapore. final, is binding upon the parties and you can by motion
have it executed. You can give the order of execution to any
If you want to know more about arbitration, you ask one of Sheriff. The Voluntary Arbitrator can issue a Writ of
our alumnus who is now in the (?) of arbitration, Mr. Juan. Execution. Unsa mana? Alias Writ of Execution. Alias is
Atty. Juan is now in the International Arbitration Division of another Writ. How long can you get a writ for one decision?
Shell Philippines, Inc. They have very big contracts offshore, Rule 39. The judgment can be executed by mere motion for
establishments, insurance. After I finished my course in (?), 10 years. Diba? After that, you already have to file a new
I went to the AAA or the American Arbitration Association in case. So, mahurot na imong Writ of Execution, file nasad ka
New York and I asked to intern. They disqualified me ug lain kay nakita napud nimo tong tawhana.
because they don’t accept a lawyer. The reputation of
lawyers is lawyers are either (?). They just gave me The Voluntary Arbitrator can issue a Writ of Execution. He
concession. I can observe arbitration but cannot participate. is holding some sort of official office. Now, Mantrade vs
They don’t like lawyers in arbitration. That eliminates us. Bacungan was a case on regular holiday pay. There used to
be an Implementing Rule issued by the Department of Labor
Here, if you are not a lawyer and you apply to be accredited which said that only daily paid employees were entitled to
with the Voluntary Arbitrators of the Philippines for Labor regular holiday pay. If you are a monthly paid, you are not
Law, it will take longer for you because they will test you for entitled. Why? Because according to the Implementing
Labor Code. If you are already a lawyer, they know that you Rules, you are paid the same amount of monthly salary
have passed the bar, you know your Labor Law. You can be regardless of the actual number of working days in a month.
appointed even if you are not accredited as a Voluntary All your days are accounted for. That is the theory of the
Arbitrator. Implementing Rule but if you look at Article 95, it says that
ever employee, every worker is entitled to 13th month. That
Nature of a Voluntary Arbitrator became an issue. Bacungan approached it legally. He says,
the union is complaining that the monthly paid should
Now, what is the precise nature of your position as a receive. But here is an Implementing Rule and the
Voluntary Arbitrator? That is the issue that was first brought Implementing Rule is presumed valid. So therefore, the
up in the Mantrade FMMC Division of employees and monthly, “i will dismiss your complaint because you are
workers union vs Bacungan (144 SCRA 510 1986). already considered paid”. The Implementing Rule says so
and it is presumed valid. So, it came out in that decision. 3
Bacungan is the famous dean of the University of the days after he decided, the case of Citibank came out and
Philippines during the time that I came across studying law the Supreme Court said that this Implementing Rule is ultra
there. Why is that significant? Bacungan, as you know, is an vires, beyond the powers of the Secretary to issue. He is
Ilocano and Imee Marcos was accepted to the College of Law amending the rules which says that every employee. So, the
of Diliman even if she was not qualified because she did not employer must prove, (it is not presumed) that monthly
have a college diploma. It came out in her facebook during paid are actually paid or covered by the provision in the
the campaign. She could not show a diploma but Bacungan Labor Code that you are paid holiday pay during those days
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that are enumerated by the Labor Code. Now, when that 3. Controversies arising from interpretation and
came out, the lawyers of the Mantrade Union, they filed a implementation of the CBA
mandamus against Bacungan and they filed it straight with
the Supreme Court asking the Supreme Court to order PERMISSIVE JURISDICTION
Bacungan to comply with the decision on the Citibank. Why? All other issues submitted by the parties, including unfair
Because once the Supreme Court interprets a law, it is labor practice (ULP), labor standards and termination, if
binding not just upon the parties but against the whole submitted by the parties.
world. It becomes part of the law. He is commanded now to
implement the decision in Citibank together with Mantrade Now, ULPs, labor standard issues, termination – they are
Union. You can only do that if the Office of the Voluntary original and exclusive jurisdiction of the labor arbiter. And
Arbitrator is a public office. The issue is whether Bacungan, yet, the voluntary arbitrator can assume jurisdiction over
the voluntary arbitrator, can he be compelled by a these disputes if the parties submit their controversy to the
Mandamus. Is he a public officer who can be compelled voluntary arbitrator.
when he is only a Voluntary arbitrator? The Supreme Court
said, yes. He is a quasi-judicial public officer. Why? Because the Constitution has a bias for voluntary
arbitration over compulsory arbitration. Supreme Court has
In the US, voluntary arbitrators are not public officers. Their already stated that. Supreme Court even said, even if the
decisions do not have to be in accordance with law. They case is already before us, if the parties jointly submit a
are settlement officers. What makes their decision binding motion that they are agreeing to invoke voluntary
is the choice of the parties. If you choose somebody to be arbitration, this court will yield, provided that there is no
your settler/resolver of an issue, you have the (?) another more appeal. Adto nalang didto sa voluntarty arbitrator,
disagreeable with you, the other party has also chosen you, that is the end! Why? Because the Constitution is in favor of
you can no longer repudiate it. You cannot fight an appeal. voluntary arbitration.
Even if your decision is illegal, against the law, you cannot.
It is allowed. That’s why they don’t like lawyers to be Now, just a little cautionary note. When it says “all other
arbitrators because the lawyers would be so legal that the issues submitted by the parties, including unfair labor
option for settlement will be reduced. So voluntary practice, etc.,” this cannot be understood as issues that
arbitrators in the US even if their decision is against the law, have nothing to do with terms and conditions of work. If it
it is valid. That is why the voluntary arbitration there is very is some other controversy that involves some other contract
fast. which maybe a nominate contract, civil law contract, then,
not even the voluntary arbitrator can entertain it even if the
Here, voluntary arbitration takes too long. Sige’g appeal parties submit it. Because the voluntary arbitrator is not an
appeal. Ngano mana? Because our voluntary arbitration is office with a general jurisdiction. You violate the Judiciary
less than voluntary. The law itself provides that you must Act, which has apportioned jurisdiction to the regular courts.
resort to voluntary arbitration. Mao mana’y dako nga Jurisdiction is determined by law. It is granted by law.
tinonto ana.
Mu ingon ka, “abi nako complaint na na, maoy the narration
AUGUST 22 [ ESTREMOS ] of facts determine jurisdiction?” Assuming that it is the
proper forum that you are facing. Assuming. Then it is the
Grievance machinery, questions of discipline, company narration of facts that determine. Jurisdiction is granted by
policies, questions arising from CBA – you cannot bring it to law.
compulsory arbitration. It is the law itself who mandates it.
It is not the volition of the parties. That is why it is actually So, if there is another contract involved, then even if the
Involuntary Arbitration. parties submit to the voluntary arbitrator, the voluntary
arbitrator has no jurisdiction.
So, subject to mandamus. Bacungan was ordered by the
Supreme Court to reform his decision, to coincide with the REINSTATEMENT IN TERMINATION DISPUTES VIS-À-
decision of the court in the Citibank case. VIS VOLUNTARY ARBITRATOR

Is a voluntary arbitrator a public officer? Now, you know of course that in termination cases, once the
Not exactly. But he has the stamp of being a public officer. labor arbiter rules that there is illegal dismissal, that the
He is a quasi-judicial officer. That is why he can be a subject employer appeals to the NLRC, there is already immediate
of mandamus. reinstatement, immediate execution as to the reinstatement
pending the resolution of the appeal.
TWO KINDS OF JURISDICTION OF THE VOLUNTARY
ARBITRATOR: Now, the Supreme Court in the October 14, 2015 decision
1. Mandatory; and of Baronda vs. Court of Appeals, penned by then Justice
2. Permissive. Bersamin, now Chief Justice about to retire, this is also true
with the voluntary arbitrator. If the parties submit a
MANDATORY JURISDICTION termination dispute to the voluntary arbitrator, and the
There are three kinds of mandatory jurisdiction: voluntary arbitrator rules that there is illegal dismissal or
1. Wage Distortions under Article 124 illegal termination, and of course the management will
2. Interpretation, implementation of company appeal to the Court of Appeals. Pending resolution of appeal,
personnel policies there must be already a reinstatement of the employee that

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was adjudged by the voluntary arbitrator. This was ruled the requirement of due process is your right vis-à-vis the
Supreme Court. government, not the employer. But the Supreme Court still
uses that “due process”. It’s not due process. It’s the
According to the Supreme Court, immediate reinstatement process required by the Labor Code, because the one who
is instituted by the Labor Code with respect to the Labor dismisses you is not the government. It is the employer.
Arbiter is so that the employer will not engage in so-called The Bill of Rights are your rights vis-à-vis the government.
frivolous appeals just to delay the reinstatement. The It is not a right of an individual with the employer.
employee is not on the equal footing with the employer. He
cannot sustain prolonged litigation. That is why, so that he So, may the voluntary arbitrator conduct hearings?
will be placed in equal footing, there should be immediate Yes. The voluntary arbitrator can conduct hearings, just like
reinstatement. So now, voluntary arbitration, also, you have a compulsory arbitrator.
to immediately reinstate.
May the voluntary arbitrator dispense with hearings?
So, you have read in Article 223, if there is a case that has After the submission of position papers, he just says “okay,
to do with disciplinary action, the law says that the labor I can now decide this. I will issue an order.” What is that
arbiter must not entertain the case, but must immediately order? “Parties are hereby notified that after due submission
refer it to the grievance machinery or to the voluntary of position papers, the case is now considered submitted for
arbitrator. decision.” No more hearing. He will be deciding on your
annexes and your arguments that you have included in your
Article 224 [Article 217]. Jurisdiction of the Labor position paper. Can he do that? Yes, he can do that.
Arbiters and the Commission.
Does the voluntary arbitrator have jurisdiction over
xxx alleged sexual harassment committed by an
employee against another employee within the
Cases arising from the interpretation or company premises but not during office hours?
implementation of collective bargaining agreements That’s the case of Navarro v. Voluntary Arbitrator Israel
and those arising from the interpretation or D. Damasco (246 SCRA 260). And the Supreme Court says
enforcement of company personnel policies shall be yes, that is conduct within the workplace, disciplinary
disposed of by the Labor Arbiter by referring the same conduct. So the voluntary arbitrator has jurisdiction.
to the grievance machinery and voluntary arbitration
as may be provided in said agreements. May a voluntary arbitrator entertain a motion for
reconsideration and modify his final decision and
award?
The labor arbiter will not entertain the petition or When does the decision of the voluntary arbitrator become
enforcement cases involving discipline of employees or on final and executory? That’s codal. 10 days from receipt of
the text of the CBA. the copy of the decision. It becomes final and executory.

So, the pertinent case here to make sure that the CBA When can you appeal the decision of the voluntary
grievance machinery is observed is Standard Electric arbitrator?
Manufacturing Corporation v. Standard Electric That is in the New Rules of Court. Rule 43, Section 1. There
Employees Union-NAFLU (August 25, 2005, 468 SCRA is a litany there of when you can appeal of decisions from
316). You must observe first the investigation that is called the SEC, from the DAR, and the voluntary arbitrator.
for to grant the employee ample opportunity to be heard
with respect to the charge that he will be facing which either RULE 43: Appeals From the Court of Tax Appeals
merits suspension or termination. And then, after that is and Quasi-Judicial Agencies to the Court of
done, he still has grievance machinery to invoke. But he Appeals
cannot invoke the grievance machinery without first going
through the investigation that is required on the employer’s Section 1. Scope. — This Rule shall apply to appeals
side. from judgments or final orders of the Court of Tax
Appeals and from awards, judgments, final orders or
As Standard Electric case said, the petitioner did not conduct resolutions of or authorized by any quasi-judicial
any investigation whatsoever prior to his termination, agency in the exercise of its quasi-judicial functions.
despite being informed of respondent Javier’s predicament Among these agencies are the Civil Service
and the latter’s siblings, his Union and his counsel. The Commission, Central Board of Assessment Appeals,
meetings held pursuant to the grievance machinery Securities and Exchange Commission, Office of the
provisions of the collective bargaining agreement were only President, Land Registration Authority, Social Security
done after his dismissal. Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer,
So, you must first go through the investigation proceeding National Electrification Administration, Energy
required by the Labor Code, and then you can go through Regulatory Board, National Telecommunications
the grievance machinery, and then say that you have Commission, Department of Agrarian Reform under
properly observed the requirements of Labor Code. Republic Act No. 6657, Government Service Insurance
System, Employees Compensation Commission,
They are not requirements of due process. They are Agricultural Invention Board, Insurance Commission,
requirements of the Labor Code. Remember! Your Philippine Atomic Energy Commission, Board of
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Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized TERM OF A COLLECTIVE BARGAINING AGREEMENT
by law. (n)
The term of a CBA under the Labor Code is 5 years. Peculiar to that 5
And the number of days to perfect an appeal is 15 days years is the additional feature that before the end of the 3rd year, you
under Rule 43, Section 1. can renegotiate the last 2 years. When you negotiate from the start, you
agree on the 5 years and all the benefits covering the 5 years. It is normal
What is superior, statute or a rule issued by the to provide for annual anniversary increases for the CBA but it does not
Supreme Court? have to be that way. That is not the ironclad rule. The only ironclad rule
You are taught that it is statute which is superior. [But] is that the question of representation of the collective bargaining
Supreme Court man ning rule. Ingon ang Supreme Court, it representative is fixed for the 5 years.
is still 15 days, although within 10 days, you must notify the
voluntary arbitrator that you are appealing, so that he will
not put his decision in the entry of judgment book, because SAN MIGUEL EMPLOYEES UNION-PTGWO v CONFESOR
you have 15 days to appeal according to the Supreme Court. Note: No digest created as SC now does not want to rely on this decision
anymore.
Basaha ninyo ning kaso ni Samahan ng mga
Manggagawa sa Hyatt v. Voluntary Arbitrator There is this case of San Miguel Employees Union-PTGWO v Confesor,
Bacungan (March 25, 2009, 2nd Division, J. Tinga). 1996 (262 SCRA 81). This case arose out of a special event in the history
Appealable to the Court of Appeals under Rule 43, and not
of the corporate life of San Miguel. At one point, San Miguel as
under Rule 65. What is 65? Certiorari as an original action.
corporation decided to break up into several corporations as it is now.
43 is Petition for Review on Certiorari. That is an ordinary
They have a holding company and they have several corporations now.
appeal.
At one time, they entered into a 5-year CBA which was to cover the period
July 1, 1989 to June 30, 1994.
So, I hope you be clear about this. Pangutan on gani ka sa
Bar Examination. I-emphasize jud nimo 15 days, although
In 1991, 2 divisions of San Miguel Corporation - Magnolia and
it becomes final and executory in 10 days, if you have given
notice, the voluntary arbitrator is bound to suspend entry of AgriBusiness Feeds and Livestock - they were spun-off into separate
judgment until he receives your appeal brief. Remember, corporations. Remember, they were covered by a 5-year CBA beginning
unlike other enumerations in Section 1, Rule 43, you just 1989. After two years, in the middle of the third year, there was this
cannot file a notice of appeal. No. It must be a complete spinning-off.
position paper on appeal. Dili 15 days. Di lang na notice of
appeal. In fact, if you file a motion for reconsideration, that In 1992 when that spinning-off happened, the CBA was renegotiated as
will be considered an appeal. There is no motion for to all its provisions except the representation status. The unions wanted
reconsideration in decisions of the Labor Arbiter or to include Magnolia and SM Foods. Management said, "let them stay as
the Voluntary Arbitrator. Please keep that in mind. a different corporation. You can participate in a certification election
there but leave it alone." But the union wanted to include it in the CBA.
In your ordinary procedure, you cannot appeal, unless you
file a motion for reconsideration. But in labor, voluntary So, what happened? There was a deadlock and the union filed a notice of
arbitrator, compulsory arbitrator, labor arbiter, even strike. Because San Miguel is a very important corporation vis-a-vis the
Secretary of Labor – you do not file a motion for Philippine economy, the Secretary of Labor assumed jurisdiction over the
reconsideration. If you do, that will be considered an appeal. dispute. One of the decision points of the Secretary of Labor is that the
Mao na nang imong position paper. CBA can be renewed or can be renegotiated for a 3-year term beginning
1992 covering only San Miguel Corporation without Magnolia and SM
Mu ingon ka “can you do a position paper in 10 days or 15 Foods which are now two separate corporations.
days? Lisod! It’s difficult!” You do it! But you have to submit.
Do as best as you can. You submit it and then review it. And Take note ha, the Labor Code says 3 years then you renegotiate 2 years.
later on, file a supplemental position paper. Discuss all The Secretary says, instead of just 2 years, you renegotiate 3 years. What
the other points you have not covered. But meet the is the problem? The problem is the fixed representation status of the
deadline. A supplemental position paper on appeal is not union renegotiating. What is the representation status good for? Only for
prohibited by the Rules. You can always submit a second, a 5 years. Are you also extending the nature of the representation to last
third supplemental. You can always submit. not just 5 years but for another additional year amounting to 6 years?
Because you are renewing the CBA not just for 2 more years but for 3
So, until the appellate body says its already considered
years!
submitted for decision, you can still file addendum. And
uban pud, maghuwat jud sila na ma perfect ilang appeal.
The Supreme Court came out with the decision saying that the CBA can
Ayaw! Kay naa may panahon. Do not let perfect be the
be renegotiated for another 3-year term. What is the basis of the opinion
enemy of the good. Tungod lang gusto ka maperfect,
of the SC? It's the debates in the Congress when they were passing the
plantsado, discuss nimo tanang points sa imong appeal, di
amendment, Herrera-Veloso Law RA 6715.
ka mu file hangtod ma perfect – ma apsan ka sa 15 days.
File nalang! Bisan gamay lang imong ma cover. Cover the
others later on. Ayaw sad igna sa imong appeal “naa pa koy The SC now wants to forget this decision. Their basis is a very painful
nahabilin ha na i-cover.” Ayaw sad! Pakugod nalang. thing to read! They are quoting the debates in Congress and the one
speaking is Boy Herrera, former Senator Herrera who presented himself
AUGUST 28 [ PAULMA ] as an authority on Labor in the Senate.
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law. To be safe, stick to the letter of the law. If you are
What is the reason why Herrera says you can renew it for 3 years? asked “How long or what is the term of a CBA?”, you can
Before you end the 3rd year, you must set your bargaining proposals to answer the law. If you have read the case, and you have a
renegotiate. In the last 60 days of the last year (freedom period), if the good grasp of it, you can put there “However…” and then
incumbent presents you with bargaining proposals, you can say that you you cite the San Miguel and the PAL cases.
will not negotiate. There is no duty to to bargain in the freedom period.
The SC has said that if you do bargain, you're the employer, you bargain PERFECTION OF CBA
at a risk. Because during the 60 days, there might be filed a petition for Stages of a contract:
certification election and if it has the support of 25% of the bargaining 1. Negotiation
unit, the Med-Arbiter has no discretion but to grant that petition. What 2. Perfection
happens if the incumbent loses? There will be a new exclusive bargaining 3. Execution
agent and he will want to negotiate his own collective bargaining
agreement for the next 5 years. That's why there is no duty to bargain When is a CBA perfected as a contract?
here even if you are presented with bargaining proposals.
It is supposed to perfected not upon the signing of the
parties. The negotiation side of the employees and the
Now you can see why a collective bargaining agreement, even if it is
management – is not yet the perfection. There must be the
expired, still is in force and effect. Because, if no new CBA is entered into
ratification of the majority of the bargaining unit. That
and the CBA has expired, there will be a hiatus. What will govern the
ratification is certified by the president of the union, when
relation of the parties? So they make the CBA, still in effect until a new
he submits 2 copies of the CBA to the BLR to register the
CBA is entered into and concluded and ratified. The contract here in the
CBA. It is accompanied by an affidavit. The President says:
San Miguel case begun 1989; it was supposed to end in 1994.
“The attached CBA posted in 2 conspicuous places at the
workplace. It has been ratified by the majority of the
In 1992, there was a spin-off, nigamay ang bargaining unit. They want to bargaining unit.”
renegotiate it. Ingon ang San Miguel, "wala nay labot ang San Miguel
Foods, wala nay labot ang Magnolia.” Nakuhaan ang union! Ingon ang The bargaining unit – they are the real parties-in-interest.
union, "di na mahimo, apil na sila kay sa original apil man gyapon sila." Why? Because all those within the bargaining unit perform
Dili. Let there be a certification election there because it is a new the obligations within the CBA and they are also the
corporation. beneficiaries of the wages and benefits which the CBA
mandates. That is why they are the real parties-in-interest.
As consuelo de bobo, San Miguel said, let's make this 3 years. Mahimo
man na. Who was the lawyer of San Miguel here? It was Brion! So, they How about the union? The management?
made it 3 years. Mulapas siya sa 5-year period sa collective bargaining The union & management – they are the representative
agreement. Justification is again, debates. Herrera says, "my suggestion parties – for the personal clauses in the CBA, the union does
is not only 2 years, you renegotiate for 3 years!" But, the representation not stand to benefit.
is only good for the remaining 2 years. What is the extra year for? The
extra year is for transition. So that if there is a new exclusive bargaining The personal clauses are:
agent that is chosen if there is a certification election, the new exclusive 1. Union security clause
bargaining agent is not under pressure to come up with a new CBA that 2. Check-off provision
is better than the past. He will have to administer an old CBA. And 1 year 3. Representation status
is a good transition for him to know management and for the
management to know the new exclusive bargaining agent. Mao nay sulti That is the role of the representatives. Now, the moment
ni Boy Herrera. THIS IS STUPID! Why? Ug naay ma elect na bagong the majority ratifies – and how do you make sure that it is
exclusive bargaining agent, gikaon na ang iyang one year na exclusive ratified? You provide for a signing bonus. If you sign the
bargaining agent representation status. Gikuhaan na siya'g 1 year unya CBA, then you will receive the benefit associated with the
dili iyahang CBA. That is why the SC wants to forget this decision. Just inception of the execution of the CBA. Madawat na gani na
know that when worse comes to worse, there is a precedent that you can ang signing bonus, the execution phase has begun. The
renew the CBA for another 3 years, it is sanctioned by the Supreme Court. employees covered in the bargaining unit can no longer
repudiate the CBA because they have already received the
AUGUST 28 [ PEROY ] benefits that have been agreed upon in there. So, dawat ka
sa benefits, pirma ka. What perfects the agreement is
In the PHILIPPINE AIRLINES case, the decision of the your signing. Your reception of the benefits puts the CBA
Secretary of Labor, approved by the Office of the President into the execution phase. The next pay day is already in
Estrada was – the CBA can be made to apply for 10 years, accordance with the CBA. You are already in the execution
without any changes. So, originally, entered into for 5 years, phase.
but extended for 10 years. That was the decision of the
Secretary of Labor. And then, what happens to the Now, peculiar to a CBA is that even if it is expired, it
representation status of the union? In effect, it is also continues to be in force and effect until a new CBA is
extended for 10 years. Upheld by the SC – because of the concluded. They do not want a vacuum. So, what will put
extraordinary conditions. an end to a CBA? Only another CBA. Until you can come
up with a new CBA, the old one continues to be
That decision of San Miguel and that of Philippine maintained.
Airlines made us realize that these are aberrations in the
doctrine of the Labor Code – which is the red letter of the

58 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW
Suppose that during the effectivity of the CBA, the union Art. 253-A. Terms of a collective bargaining
members exercise their exceptional aspect of right to self- agreement. Any Collective Bargaining Agreement that the
organization by decertifying the union. So, they ask for a parties may enter into shall, insofar as the representation
meeting and the purpose of such which was made known to aspect is concerned, be for a term of five (5) years. No
everybody, is to decertify the union. And everybody comes petition questioning the majority status of the incumbent
and there was an overwhelming majority of votes. What bargaining agent shall be entertained and no certification
happens? election shall be conducted by the Department of Labor and
Employment outside of the sixty-day period immediately
The officers of the union will be forced to inform the DOLE before the date of expiry of such five-year term of the
that the bargaining unit does not want any union. So what Collective Bargaining Agreement. All other provisions of the
will the BLR do? They will cancel the registration of the Collective Bargaining Agreement shall be renegotiated not
union. later than three (3) years after its execution. Any
agreement on such other provisions of the Collective
Can you still have a CBA? No more. So what happens? Bargaining Agreement entered into within six (6)
months from the date of expiry of the term of such
You are supposed to go back to individual contracts of other provisions as fixed in such Collective Bargaining
employment. Agreement, shall retroact to the day immediately
following such date. If any such agreement is entered
But then, what will be its terms & conditions? Are you going into beyond six months, the parties shall agree on the
to re-negotiate with each individual? duration of retroactivity thereof. In case of a deadlock
in the renegotiation of the Collective Bargaining Agreement,
The individual agreements now will be still the the parties may exercise their rights under this Code. (As
existing CBA because you cannot go lower than what amended by Section 21, Republic Act No. 6715, March 21,
benefits you have been already receiving. That would 1989)
be in violation of the cardinal principle of diminution of
wages & benefits. The old CBA will constitute the basic The Labor Code further says – if a CBA has expired, there is
individual contracts of the employee. a negotiation for a new CBA & the succeeding CBA is
concluded within 6 months after the end of the previous CBA
Probably, moving forward, an individual might be able to or after the expiration of the previous CBA, the law says that
negotiation for an employment contract for himself. But that the new CBA automatically retroacts to the previous expiry
is already for the future. There is no more collective ER-EE date – wala nay hiatus.
contract by way of CBA. The old CBA becomes the individual
employment contracts. But if the CBA which succeeded the old one, is concluded
after 6 months of the expiry date of the old CBA, what is the
Now, what happens, if for instance, that the majority of the effectivity? The effectivity of the new CBA is dependent on
bargaining unit does not ratify the CBA? What is the result? the agreement of the parties.
They will have to go back to the bargaining table & negotiate
what is acceptable to the bargaining unit. That is normally There is this ST. LUKE’S MEDICAL CENTER ruling –
what happens. But that is associated with a work force that there’s a deadlock between negotiating of a new CBA which
has a higher level of execution. That has happened to PAL, should take over an expired CBA, the deadlock becomes the
but that does not happen to arrastre workers. subject of a notice of strike, and then management brings
over & asks the Secretary of Labor to assume jurisdiction,
The ratification and then the execution phase begins. The so the Secretary of Labor becomes the compulsory
president of the union takes 2 copies of the CBA, goes to arbitrator of the labor dispute. The Secretary of Labor
the BLR with the 2 copies of the CBA, together with a cover arrives at the decision more than a year after the expiry of
letter & his affidavit that it has been posted in 2 conspicuous the previous CBA, but then the Secretary of Labor says “My
places and that it has been ratified by the majority of the decision is that this should be the new CBA and it retroacts
bargaining unit. Then it becomes a certified CBA. The BLR to the end of the old CBA.” Is that valid?
now knows whether the bargaining unit is covered by a CBA
or not. The SC said yes. That is within the powers of the
compulsory arbitrator to rule – that he can push back the
Why is it relevant? It is relevant for purposes of filing a effectivity of the succeeding CBA to more than 1 year and
petition for certification election. For as long as there is then back to the expiration date of the old CBA.
a CBA binding on the parties, the BLR cannot entertain a
petition for certification election covered that same *** END OF SECOND EXAM COVERAGE***
bargaining unit during the existence of the CBA except in
the last 60-day freedom period of the CBA. That is the only ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ .
time when they can entertain a petition for certification MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO .
election even if there is a CBA. SANCHEZ . SUAREZ . TALON . TAN, B. . VILLAVICENCIO

Remember, people are sitting down & negotiating a CBA.

They have already agreed on the propositions – that does
not mean that there is a CBA. Those are all tentative
agreements. When is the perfection? It is in the signing.

59 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO
 Labor Relations
ATENEO DE DAVAO UNIVERSITY COLLEGE OF LAW

60 [ 3-MANRESA 2019-2020 ] From the Lectures of Fr. Agustin Nazareno [ SECOND EXAM COVERAGE ]
ALABAN . AMPOG . DELA CERNA . ESTREMOS . LUZ . MANAAY . MANLIGOY . PAULMA . PEROY . PIZZARO . SANCHEZ . SUAREZ . TALON . TAN,
B. . VILLAVICENCIO