Labor Relations – Final Examination

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K A T H E R I N E P. A T I E N Z A LLB - II

I.
a. Dismissal without just cause and without due process.

In cases of a dismissal without just cause and without due process, the employee shall be
entitled to reinstatement without loss of seniority rights and other privileges and full back wages,
inclusive of allowances, and other benefits or their monetary equivalent computed from the time
the compensation was not paid up to the time of actual reinstatement (Article 279, Labor Code)

The employer shall be liable for the non-compliance with the procedural requirements of
due process in which case an award of indemnity in the form of nominal damages and payment
of attorney’s fees (Agabon v. NLRC, G.r. no. 158693, 17 November 2004) In addition, there shall
also be an imposition of six percent (6%) legal interest on back wages, separation pay and other
monetary awards.

b. Dismissal with just cause but without due process.

In cases of a dismissal with just cause but without due process, the lack of statutory due
process does not nullify the dismissal, or render it illegal, or ineffectual. However, the violation
of the employee’s right to due process warrants the payment of indemnity in the form of nominal
damages, the amount of which is addressed to the sound discretion of the court taking into
account the relevant circumstances of the case (Agabon v. NLRC, G.r. no. 158693, 17 November
2004).

c. Dismissal due to an authorized cause but without due process.

In cases of a dismissal due to an authorized cause but without due process, Article 298 of
the Labor Code provides that in case of termination due to installation of labor-saving devices or
redundancy, the worker affected shall be entitled to separation pay equivalent to at least his one
(1) month pay or at least one (1) month pay for every year of service, whichever is higher. In
case of retrenchment to prevent losses and in cases of closures or cessation of operations of
establishment or undertaking not due to serious business losses or financial reverses, the
separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for
every year of service, whichever is higher. A fraction of at least six (6) months shall be
considered for one whole year.

For the employer’s failure to comply with the due process requirement, the same warrants
the payment of indemnity in the form of nominal damages, the amount of which is addressed to
the sound discretion of the court taking into account the relevant circumstances of the case
(Agabon v. NLRC, G.r. no. 158693, 17 November 2004). However, the sanction in this case
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should be stiffer because the dismissal was initiated by the employer’s exercise of his
management prerogative. (Jaka Food vs. Pacot, G.r. no. 151378, March 28, 2005).

d. Participation by a union officer in a strike that was subsequently declared illegal.

A union officer who knowingly participates in an illegal strike or who knowingly

participates in the commission of illegal acts during a strike may be declared to have lost his
employment status. (Par. A, Article 279 of the Labor Code) However, the law grants the
employer the option of declaring a union officer who participated in an illegal strike as having
lost his employment. It possesses the right and prerogative to terminate the union officers from
service. (Santa Rosa Coca-cola Plant Employees union vs. Coca-cola bottlers Phils., Inc, G.r.
no. 164302-03, January 24, 2007)

e. Assumption of jurisdiction by DOLE Secretary in an industry indispensable to national interest.

The assumption of jurisdiction by the DOLE secretary shall have the effect of
automatically enjoining an impending strike or lockout. If a strike or lockout has already taken
place at the time of assumption, all striking or locked out employees and other employees subject
to the notice of strike shall immediately return to work and the employer shall immediately
resume operations and re-admit all employees under the same terms and condition prevailing
before the strike or lockout. (Sec. 15, Rule XXII, Book V, Omnibus Rules Implementing the
Labor Code, as amended)

II. True or False

A. FALSE. Payment of back wages is a form of relief that restores the income of that was lost by
reason of unlawful dismissal while separation pay in contrast is oriented towards the transitional
period the dismissed employee must undergo before locating a replacement job. The grant of
separation pay is a proper substitute only for reinstatement; it could not be an adequate substitute
both for reinstatement and back wages. (Nissan North Edsa vs. Serrano, G.r. no. 162538, June 4,
2009)

B. TRUE. Any employee, whether employed for a definite period or not, shall, beginning on his
first day of service, be considered as an employee for purposes of membership in any labor union
(Art. 292, Par. C, as amended by Sec. 33 of Republic Act no. 6715)
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C. FALSE. The law does not provide for mandatory provisions to be incorporated in the CBA as a
condition for the latter’s registration. Neither the labor code nor the implementing rules require
any mandatory provision as a requisite for a CBA registration. All the law requires is that it
contains a reasonable terms and conditions of employment which must not be below the
standards provided by law.

D. FALSE. Article 263 of the Labor Code provides that the duty to bargain means the performance
of mutual obligations to meet and convene promptly and expeditiously in good faith for purpose
of negotiating an agreement but such duty does not compel any party to agree to a proposal or to
make any concession just to avoid the pain of being held liable for Unfair labor practice.

E. FALSE. The “No Strike, No Lockout” clause may only be invoked in case the strike or lockout
involves issues that are economic in nature. Economic, in the sense that the basis for staging of
strike or lockout is force wage or other concessions from the employer that are not mandated or
granted by any law (Panay Electric Company, Inc. vs. National Labor Relations Commission
248 SCRA 688, October 04, 1995). The “No Strike, No Lockout” clause is inapplicable to
prevent a strike or lockout which is grounded on unfair labor practice (ULP) (Master Iron Labor
Union vs. NLRC 219 SCRA 47, February 17, 1993).

III

A. I will file a case for illegal dismissal. Our Constitution, statutes and jurisprudence
uniformly guarantee to every employee or worker tenurial security. What this means is that an
employer shall not dismiss an employee except for a just or authorized cause and only after due
process is observed.

In this case, Joe was suddenly prevented from entering the premises of the company
without any explanation nor was he given an opportunity to answer the allegations pinned on
him so as to defend himself against the said charges. Joe was not afforded procedural due
process. Settled is the rule that the employer must furnish the employee with two written notices
before the termination of employment can be effected: (1) the first apprises the employee of the
particular acts or omissions for which his dismissal is sought; and (2) the second informs the
employee of the employer's decision to dismiss him.

These two requirements are absent in this case. Thus, I will file a case for illegal
dismissal for failure to comply with the procedural due process.

B. As the legal counsel of the company, I would argue that the employer’s right to conduct
its business includes the prerogative to instill discipline among the employees and to impose
reasonable penalties, including suspension or dismissal, upon erring employees.
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It is within the ambit of employer’s prerogative to prevent access to the company

premises against an employee who poses a serious and imminent threat to the life and property of
the employer.

C. As the Labor Arbiter, I would rule in favor of the Company.

While it is true that Joe was not afforded procedural due process when he was arbitrarily
and whimsically prevented entry from the company premises, this did not invalidate the fact that
the Company had legitimate grounds from preventing Joe’s entry.

Joe committed an act which resulted in the loss of the company’s trust and confidence in
him as an employee who handled loan accounts since he is one who in the normal and routine
exercise of their functions, regularly handle significant amounts of the employer's money or
property. It was established that Joe manipulated the computer system of the company so that the
interest due on the account of Brenda’s loan will be evenly distributed to all their clients. Said act
is a valid ground for Joe’s dismissal since it is a real act that betrays the employer's trust and one
founded on clearly established facts, it was willful, i.e., it was done intentionally, knowingly and
purposely, without justifiable excuse.

Thus, I will rule in favor of the Company.

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IV- Enumeration

A. The requisites for a valid certification election are as follows:

1. At least a majority of all eligible voters in the bargaining unit must have cast their votes (first
majority rule;
2. The union receiving the majority of the valid votes shall be certified as the exclusive bargaining
agent (second majority rule);
3. When an election which provides for 3 or more choices receiving a majority of the valid votes
cast, under the automatic second election rule, a run-off election shall be conducted between the
labor unions receiving the two highest number of votes: Provided, that the total number of votes
for all contending unions is at least 50% of the number of votes cast (automatic second election
rule)
4. In determining the eligible voters who cast their ballots under the first majority rule, the spoiled
ballots are included. However, under the second majority rule, in determining the valid votes cast
the spoiled ballots are excluded but the challenged votes are included.

B. The requisites for the conduct of a re-run election are as follows:

1. There must be a certification consent or run-off election that results in a tie between two unions
or between a union and a labor group with no union;
2. The election officer must cause the posting of the notice of re-run within 5 days from the
certification, consent or run-off election;
3. The said re-run election is conducted within 10 days after the posting of notice; or
4. There is a failure on election declared by the election officer where the number of votes cast in a
certification or consent election is less than the majority of the number of eligible voters and
there are no material challenged votes.

C. An example of a situation that calls for a run-off election is when in an organized establishment,
there exists 5 contending unions and during the conduct of a certification election none of the
contending unions received the majority of the valid votes cast, furthermore when the votes of all
the contending unions are all added, it shall be at least fifty percent (50%) of the number of valid
votes cast.
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V.

I will tell Daisy that forming the Boxing Champs’s Alalays Union is possible.

The Implementing Rules and Regulations of the Batas Kasambahay Law or R.A. no. 10361
provides the state affirms the right of the Kasambahays to join, form or assist associations or
organizations of their own choosing for their mutual benefit and protection and for purposes of
collective negotiation and social dialogue. (Section 17, Rule IV, Implementing Rules and Regulation of
R.A. 10361)

However, it should be noted that what the IRR merely allowed was the joining, forming or
assisting associations or organizations for purposes of collective negotiation and social dialogue and not
for collective bargaining. This means that they cannot collectively bargain with their employer but they
can still form organizations for their mutual benefit and protection, collective negotiation and social
dialogue.

As applied in this case, Daisy and her co-workers will be afforded adequate representation in
social dialogue on issues and concerns peculiar to their welfare. They shall also be afforded the
opportunity to attend organization meetings.
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VI

The contention of Arnaldo is untenable considering that the dismissal was for a valid
ground and not in any way related to his functions as a union president.

An employer has the right to require the performance of overtime service in any of the
situations contemplated under Article 89 of the Labor Code and an employees’ non-compliance
is willful disobedience. For willful disobedience to be a valid cause for dismissal, these two
elements must concur: (1) the employees assailed conduct must have been willful, that is,
characterized by a wrongful and perverse attitude; and (2) the order violated must have been
reasonable, lawful, made known to the employee, and must pertain to the duties which he had
been engaged to discharge ( R.B. Michael Press v. Galit, G.r. no. 153510 : February 13, 2008).

The factual milieu of this case shows that the first requisite was present when Arnaldo
refused to perform the overtime work despite knowledge that the same was necessary to meet the
company’s export quota. This shows his wrongful and perverse mental attitude; thus, there is
willingness. The second requisite was present when the General Manager’s order was for the
company to meet its export quota.

Thus, Femwear company should not be held liable for union busting and the dismissal of
Arnaldo was valid.
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VII

Yes, the employees are still entitled to be paid their mid-year bonus.

The last paragraph of Article 265 of the Labor Code contains the “Hold-over Principle”
which provides that it shall be the duty of both parties to keep the status quo and to continue in
full force and effect the terms and conditions of the existing agreement during the 60-day period
and/or until a new agreement is reached by the parties. The law does not provide for any
exception nor qualification on which economic provisions of the existing agreement are to regain
its force and effect. It must be understood as encompassing all the terms and conditions in the
agreement (FAMIT vs. CA, G.r. no 164060, June 15, 2007).

Thus, the company is without merit when it argued that the employees are not entitled to
be paid their midyear bonus by reason that their CBA already expired. The employees are still
entitled to the midyear bonus since the status quo is kept until a new CBA is forged.
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VIII

As med-arbiter, I would deny the petition for certification elections since ICMC is an
international organization endowed by law with immunity from local jurisdiction.

A certification election is barred by the grant of such immunity because it could trigger
off a series of events in the collective bargaining process together with related incidents and
concerted activities which could inevitably involve an international organization such as ICMC
in the legal process which involves any penal, civil or administrative proceedings. The
eventuality of court litigation is not remote and from which international organizations are
precisely shielded by the immunity to safeguard them from the disruption of their functions
(ICMC vs. Pura-calleja, G.r. no. 85750, September 28, 1990).

In this case, ICMC is an international organization that was registered with the United
Nations Economic and Social Council (ECOSOC) with rights parallel to the International
Committee for Migration and International Committee of the Red Cross thus it enjoys the grant
of immunity from local jurisdiction under contemporary international law.

Thus, ICMC being an international organization, a certification election could not be had.
However, this is without prejudice to the right of such employees to join a union but not for
purposes of collective bargaining since there is no legal prohibition for such activity.
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IX

The essence of unionism underscores the adage that “there is strength in number”. It is
the convergence of employees for concord of their voices in order that they may be of the same
level with their employers who are often corporate giants. Unionism affords workers a stronger
voice so that they can get a fair share of the economic growth they help create. It grants a lone
employee the opportunity to air his pleas and grievances and negotiate for better terms and
conditions of employment through the channel of his union.
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A. Doctrine of Necessary Implication

The Doctrine of Necessary Implication states that what is implied in a statute is as much a
part thereof as that which is expressed (NATU vs. Torres, G.r. no. 93468, December 29,
1994).

It is the legal justification of a confidential employee’s exclusion from exercising his right to
self-organization because they are ones who by reason of their positions or nature of work,
are required to assist or act in a fiduciary manner to managerial employees and therefore, are
likewise privy to sensitive and highly confidential records. (Standard Chartered Bank
Employees Union vs. Standard Chartered Bank, G.r. no. 161933, April 22, 2008).

B. Separation of Unions Doctrine

The Separation of Unions Doctrine prohibits a situation where the supervisory union and the
rank-and-file union operating within the same establishment are both affiliated with one and
the same federation or national union because of the possible conflict of interest which may
arise in the areas of discipline, collective bargaining and strike (Atlas Lithographic Services
vs. Hon. Laguesma, G.r. no. 96566, January 6, 1992).

However, with the dawn of the amendment of Article 255 by R.A. 9481 doctrine is now
abandoned and the law now allows a rank-and-file union and a supervisory union to join the
one (1) and the same federation or national union. The fact that the two group of workers are
employed by the same company and that the unions are affiliated with the same federation is
not sufficient to justify the conclusion that their organization are actually just one (Adamson
& adamson, Inc. vs. CIR, G.r. no. L-35120, January 31, 1984)

C. Substantial Mutual Interest Principle

The Substantial Mutual Interest Principle states that the employees sought to be represented
by the collective bargaining agent must have substantial mutual interest in terms of
employment and working condition as evinced by the type of work they perform (San
Miguel Corp Employees Union-PTGWO v. Confesor, G.R. No.111262, September 19, 1996).

The said principle considers a number of factors which includes but not limited to; Similarity
in the scale and manner of determining earnings; Similarity in employment benefits, hours of
work, and other terms and conditions of employment; Similarity in the kinds of work
performed; Similarity in the qualifications, skills and training of employees; Frequency of
contract or interchange among the employees; Geographical proximity; Continuity and
integration of production processes; Common supervision and determination of labor-
relations policy; History of CB; Desires of the affected employees; or Extent of union
organization (Cox, Bok & Gorman, Labor Law (1977), p. 300.)

D. Globe Doctrine
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The Globe Doctrine states that the desires of the employees are relevant to the determination
of the appropriate bargaining unit. While the desires of employees with respect to their
inclusion in bargaining unit is not controlling, it is a factor which would be taken into
consideration in reaching a decision (Globe Machine & Stamping Co., 3 NLRB 294 (1937).
This sanctions the holding of a series of elections, not for the purpose of allowing the group
receiving an over-all majority of votes to represent all employees, but for the specific
purpose of permitting the employees in each of the several categories to select the group
which each chooses as a bargaining unit.

The reason behind the Globe doctrine is that employees with skills different from others or
those in unique situations may form their own bargaining unit because they may gain more
bargaining power against the employer if they do so.

E. Employment Status Doctrine

The Employment Status Doctrine states that what determines whether a certain employment
is regular or casual is not the will and word of the employer, to which the desperate worker
often accedes. It is the nature of the activities performed in relation to the particular business
or trade considering all circumstances, and in some cases the length of time of its
performance and its continued existence.

The primary standard of determining a regular employment is the reasonable connection

between the particular activity performed by the employee in relation to the usual business or
trade of the employer. The test is whether the former is usually necessary or desirable in the
usual business or trade of the employer. The connection can be determined by considering
the nature of the work performed and its relation to the scheme of the particular business or
trade in its entirety. Also, if the employee has been performing the job for at least one year,
even if the performance is not continuous or merely intermittent, the law deems the repeated
and continuing need for its performance as sufficient evidence of the necessity if not
indispensability of that activity to the business. Hence the employment is also considered
regular, but only with respect to such activity and while such activity exists (De Leon v.
National Labor Relations Commission, G.R. No. 70705, August 21, 1989, 176 SCRA 615,
620-621).

-Nothing follows-