TABLE OF CONTENTS

A. Right to Self-Organization 3

B. Right to Collective Barganing 23

C. Right to Peaceful Concerted Activities 37

D. Assumption of jurisdiction by Secretary of Labor and Employment 52

E. Submitted Questions with Answers 55

 LABOR RELATIONS

A. Right to self-organization
1. Who may unionize for purposes of collective bargaining? Who cannot
form, join or assist labor organizations?
All persons employed in commercial, industrial and agricultural enterprises and
in religious, charitable, medical or educational institutions whether operating for
profit or not, shall have the right to self-organization and to form, join, or assist
labor organizations of their own choosing for purposes of collective bargaining.1

Self-organization is a fundamental right guaranteed by the Philippine Constitution

and the Labor Code. Employees have the right to form, join or assist labor
organizations for the purpose of collective bargaining or for their mutual aid and
protection.2

It shall be unlawful for any person to restrain, coerce, discriminate against or

unduly interfere with employees and workers in their exercise of the right to self-
organization.3

2. Who may or may not exercise the right

The following are excluded from the coverage and employee’s right to self-
organization:
1. Managerial employees refer to an employee who is vested with powers on
prerogatives to lay down and execute management policies or to hire,
transfer, suspend, layoff, recall, discharge, assign or discipline employees.

2. Confidential employees (in the field of labor relations) such as division

secretaries staff and general management, staff of personnel department,
secretaries of audit, EDP, financial systems are ineligible to form, assist, or
join a labor union because by the nature of their function, they assist and act
in a confidential matters, of persons who exercise managerial functions in
the field of labor relations, and that union might not be assured of their loyalty
in view of evident conflict of interests.4

3. An employee of a cooperative who is a member and co-owner thereof

cannot invoke the right to collective bargaining for certainly, an owner cannot
bargain with himself or his co-owners.5

1
Article 253, Labor Code
2
UST Faculty Union vs. Bitonio, G.R. No. 131235, November 16, 1999
3
Article 257, Labor Code
4
Philips Industrial Devs., Inc. vs. NLRC, G.R. No. 88957, June 25, 1992
5
Cooperative Rural Bank of Davao City Inc. vs. Ferrer-Calleja

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4. An alien employee cannot exercise his right to self-organization unless (a)

he has a valid working permit issued by the DOLE and (b) he is a national of
a country which grants the same or similar rights to Filipino workers.

5. The following public (government) employees are not eligible to form

employees’ organization: High-level employees whose functions are
normally considered as policy-making or managerial or who duties are of a
highly confidential nature, members of AFP, police officers, policemen,
firemen, and jail guards.

a. Doctrine of necessary implication

While Article 245 of the Labor Code singles out managerial employees as
ineligible to join, assist or form any labor organization, under the doctrine
of necessary implication, confidential employees are similarly disqualified.
This doctrine states that what is implied in a statute is as much a part
thereof as that which is expressed.

In the collective bargaining process, managerial employees are supposed

to be on the side of the employer, to act as its representatives, and to see
to it that its interests are well protected. The employer is not assured of
such protection if these employees themselves are union members.
Collective bargaining in such a situation can become one-sided. It is the
same reason that impelled this Court to consider the position of
confidential employees as included in the disqualification found in Article
245 as if the disqualification of confidential employees were written in the
provision. If confidential employees could unionize in order to bargain for
advantages for themselves, then they could be governed by their own
motives rather than the interest of the employers. Moreover, unionization
of confidential employees for the purpose of collective bargaining would
mean the extension of the law to persons or individuals who are supposed
to act "in the interest of" the employers.6

3. Commingling or mixture of membership

The inclusion as union members of employees outside the bargaining unit shall
not be a ground for the cancellation of the registration of the union. Said
employees are automatically deemed removed from the list of membership of
said union.7 Thus, if supervisory employees are included as members of a rank-
and-file union, they are automatically removed from the list of membership by
operation of law.

6
NATU vs. Hon. Torres, G.R. No. 93468, December 29, 1994
7
Article 256, Labor Code

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In one case8, the Court clarified that the inclusion of supervisory employees in a
labor organization seeking to represent the bargaining unit of rank-and-file
employees does not divest it of its status as a legitimate labor organization.

4. Rights and conditions of membership

a. Nature of relationship
1. Member-Labor union
The nature of the relationship between the union and its members is fiduciary
in nature, which arises from the dependence of the employee on the union, and
from the comprehensive power vested in the union with respect to the
individual. The union may be considered but the agent of its members for the
purpose of securing for them fair and just wages and good working conditions.9

Inherent in every labor union, or any organization for that matter, is the right of
self-preservation. When members of a labor union, therefore, sow the seeds of
dissension and strife within the union; when they seek the disintegration and
destruction of the very union to which they belong, they thereby forfeit their
rights to remain as members of the union which they seek to destroy.10

2. Labor union federation

Local unions do not owe their creation and existence to the national federation
to which they are affiliated but, instead, to the will of their members, […] The
local unions remain the basic units of association, free to serve their own
interests subject to the restraints imposed by the constitution and by-laws of the
national federation, and free also to renounce the affiliation upon the terms laid
down in the agreement which brought such affiliation into existence.11

(a) Disaffiliation
A local union is free to serve the interests of all its members, including the
freedom to disaffiliate or declare its autonomy from the federation to which
it belongs when circumstances warrant, in accordance with the
constitutional guarantee of freedom of association.12

Period of Disaffiliation
Generally, a labor union may disaffiliate from the mother union to form a
local or independent union only during the 60-day freedom period

8
Samahang Manggagawa sa Charter Chemical Solidarity of Unions in the Philippines for
Empowerment and Reforms vs. Charter Chemical and Coating Corporation, G.R. No. 169717, March
16, 2011
9
Heirs of Cruz vs. CIR, G.R. No. L-23331-32, December 27, 1969
10
Villar vs. Inciong, G.R. No. L-50283-84, April 20, 1983
11
Philippine Skylanders, Inc. vs. NLRC, G.R. No. 127374, January 31, 2002
12
Malayang Samahan ng mga Manggagawa sa M. Greenfield, Inc. vs. Ramos, G.R. No. 113907,
February 28, 2000

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immediately preceding the expiration of the CBA. However, even before the
onset of the freedom period, disaffiliation may be carried out when there is
a shift of allegiance on the part of the majority of the members of the
union.13

A local union which has affiliated itself with a federation is free to sever such
affiliation anytime and such disaffiliation cannot be considered disloyalty.

Effect of Disaffiliation on Legal Personality

A registered independent union retains its legal personality while a
chartered local loses its legal personality unless it registers itself.

(b) Substitutionary doctrine

The “substitutionary” doctrine provides that the employees cannot revoke
the validly executed collective bargaining contract with their employer by the
simple expedient of changing their bargaining agent. It is in the light of this
that the phrase “said new agent would have to respect said contract” must
be understood. It only means that the employees, thru their new bargaining
agent, cannot renege on their collective bargaining contract, except of
course to negotiate with management for the shortening thereof.14

The following are the conditions to apply the doctrine:

1. Change of bargaining agent (through affiliation, disaffiliation, or other
means); and
2. Existing CBA with the previous bargaining agent

5. Bargaining unit
Bargaining unit refers to a group of employees sharing mutual interests within a
given employer unit, comprised of all or less than all of the entire body of
employees in the employer unit or any specific occupational or geographical
grouping within such employer unit.15

An Appropriate Bargaining Unit (ABU) refers to a group of employees of a given

employer comprised of all or less than all of the entire body of employees, which
the collective interests of the employees, consistent with the equity of the
employer, indicate to be best suited to serve reciprocal rights and duties of the
parties.16

13
Alliance of Nationalist and Genuine Labor Organization vs. Samahan ng mga Manggagawang
Nagkakaisa sa Manila Bay Spinning Mills, G.R. No. 118562, July 5, 1996
14
Benguet Consolidated vs. BCI Employees and Workers Union-PAFLU, G.R. No. L-24711, April 30,
1968
15
D.O. No. 40-03, 1[d], Rule I, Book V
16
Belyca Corp. vs. Calleja, G.R. No. 77395, 1988

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a. Test to determine the constituency of an appropriate bargaining unit

The law fixes no maximum or minimum number of bargaining units. Union
members come from the CBU and several rival unions can come from the
CBU. The representative is the union, and the group represented is the CBU.

Fundamental Factors in Determining the Appropriate Collective

Bargaining Unit:
1. Will of the Employees (Globe Doctrine);
2. Substantial Mutual Interests (Mutuality or Commonality of Interest);
3. Prior Collective Bargaining History; and
4. Employment Status Doctrine

Out of these, the controlling test of grouping is mutuality or commonality of

interest.17

COMMUNITY OR MUTUALITY OF INTEREST DOCTRINE

The Community of Interests Rule states that the employees within an
appropriate bargaining unit must have commonality of collective bargaining
interests in the terms of employment and working conditions as evidenced by
the type of work they perform.18

Under this doctrine:

• A bargaining unit exists even though it is composed of employees from
different branches located in Northern Luzon because said employees
share the same interests;19
• A bargaining unit exists even if the employees are from different plants
located in Laguna, Metro Manila, and Pampanga;20
• A bargaining unit also exists even if the employees are from different
universities belonging to the same University system, e.g. University of
the Philippines System and its components.21

Factors in Determining Community of Interest

1. Similarity in the scale and manner of determining earnings
2. Similarity in employment benefits, hours of work and other terms and
conditions of employment
3. Similarity in the kinds of work performed

17
San Miguel Corporation vs. Laguesma, G.R. 100485, 1994
18
San Miguel Foods Inc. vs. San Miguel Corp. Supervisors and Exempt Union, G.R. No. 146206,
2011
19
Id.
20
Id.
21
University of the Philippines vs. Ferrer-Calleja, G.R. No. 96189, 14 July 1992

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5. Similarity in the qualifications, skills and training of the employees

6. Frequency of contact or interchange among the employees
7. Geographic proximity
8. Continuity or integration of production process
9. Common supervision and determination of labor-relations policy
10. History of collective bargaining
11. Desires of the affected employees
12. Extent of union organization.22

GLOBE DOCTRINE
Under the Globe Doctrine, if units in one industry cannot be determined, the
employees can decide how to organize themselves into units. The best way
to determine such preference is through referendum or plebiscite.23

It is called Globe doctrine because this principle was first enunciated in the
United States case of Globe Machine and Stamping Co., where it was ruled,
in defining the appropriate bargaining unit, that in a case where the company‟s
production workers can be considered either as a single bargaining unit
appropriate for purposes of collective bargaining or as three (3) separate and
distinct bargaining units, the determining factor is the desire of the workers
themselves. Consequently, a certification election should be held separately
to choose which representative union will be chosen by the workers.

COLLECTIVE BARGAINING HISTORY DOCTRINE

This principle puts premium to the prior collective bargaining history and
affinity of the employees in determining the appropriate bargaining unit.
However, the existence of a prior collective bargaining history has been held
as neither decisive nor conclusive in the determination of what constitutes an
appropriate bargaining unit. In the case of National Association of Free Trade
Union vs. Mainit Lumber Development Company Workers Union, the Supreme
Court found that there is an appropriate bargaining unit by applying the
mutuality of interest doctrine despite the prior history of the units being
considered as separate ones despite their geographical distance from one
another.24

EMPLOYMENT STATUS DOCTRINE

Under this doctrine, the determination of the appropriate bargaining unit is
based on the employment status of the employees. For instance, casual

22
Azucena Vol. I, 7th ed., p. 461
23
Kapisanan ng Mga Manggagawa sa Manila Road Co. vs. Yard Crew Union, G.R. Nos. L- 16292-94,
1960
24
National Association of Free Trade Unions vs. Mainit Lumber Development Company Workers
Union, G.R. No. 79526, 1990

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employees and those employed on a day-to-day basis, according to the

Supreme Court in Philippine Land-Air-Sea Labor Union vs. CIR, do not have
the mutuality or community of interest with regular and permanent employees.
Hence, their inclusion in the bargaining unit composed of the latter is not
justified. Confidential employees, by the very nature of their functions, assist
and act in a confidential capacity to, or have access to confidential matters of,
persons who exercise managerial functions in the field of labor relations. As
such, the rationale behind the ineligibility of managerial employees to form,
assist or join a labor union equally applies to them. Hence, they cannot be
allowed to be included in the rank-and- file employees bargaining unit.25

Sole and Exclusive Bargaining Agent (SEBA)

Sole and exclusive bargaining agent (SEBA) refers to a legitimate labor union
duly certified as the sole and exclusive bargaining representative or agent of
all the employees in a collective bargaining unit (CBU).26 Only the SEBA in an
appropriate CBU can act as the exclusive representative of all employees in
such unit for purposes of collective bargaining with the employer.

A labor union recognized or certified as the “sole and exclusive bargaining

agent” means that it shall remain as such during the existence of the CBA, to
the exclusion of other labor organizations, and no petition questioning its
majority status shall be entertained nor shall certification election be
conducted outside of the 60-day freedom period immediately before the expiry
date of the 5-year term of the CBA.

The moment a union is recognized or certified, what the bargaining union

represents are not only its members but also its non-members who are
included in the bargaining unit.

The designation of a bargaining union, however, does not deprive an

individual employee or group of employees to exercise their right at any time
to present grievances directly to their employer, with or without the intervention
of the bargaining union.

A non-recognized or non-certified union cannot collectively bargain with the

employer. Under the Labor Code, the labor organization designated or
selected by the majority of the employees in an appropriate collective
bargaining unit shall be the exclusive representative of the employees in such
unit for the purpose of collective bargaining. However, an individual employee
or group of employees shall have the right at any time to present grievances

25
Philippine Land-Air-Sea Labor Union vs. CIR, G.R. No. 14656, November 29, 2960.
26
Article 219 (j), The Labor Code of the Philippines, in relation to Section 1 (t), D.O. No. 40-03.

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to their employer. It is clear that only the labor organization duly

recognized or selected by the majority of the employees in an
appropriate collective bargaining unit is the exclusive representative of all
the employees in such unit for purposes of collective bargaining.27

Modes of determining the SEBA:

1. SEBA certification (Voluntary recognition);
2. Certification election;
3. Consent election;
4. Run-off election;
5. Re-run election.

b. Voluntary recognition
“Voluntary recognition” refers to the process by which a legitimate labor union
is voluntarily recognized by the employer as the exclusive bargaining
representative or agent in a bargaining unit and reported as such with the
Regional Office in accordance with the Rules to Implement the Labor Code.
However, Voluntary recognition was repealed and replaced by a Request for
the Sole and Exclusive Bargaining Agent Certification.28

(i) Requirements
The request for SEBA Certification is to be filed with the DOLE Regional
Office which issued the legitimate labor organization’s certificate of
registration or certificate of creation of chartered local.29

Requirements for Request of SEBA Certification:

The request shall indicate:
1. The name and address of the requesting legitimate labor
organization;
2. The name and address of the company where it operates;
3. The bargaining unit sought to be represented;
4. The approximate number of employees in the bargaining unit; and
5. The statement of the existence/nonexistence of other labor
organization/CBA

The certificate of registration or certification of creation as duly certified by

the president of the requesting union or of the federation of the local,
respectively, shall be attached to the request.30

27
Article 267 [255], The Labor Code of the Philippines.
28
D.O. No. 40-I-15 Series of 2015.
29
Section 1, Rule VII, Book V, IRR, as amended by D.O. No. 40-03, Series of 2003, and Section 3
D.O. No. 40-I-15, Series of 2015.
30
Section 3, D.O. 40-I-15, Series of 2015.

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c. Certification election
"Certification Election" or "Consent Election" refers to the process of
determining through secret ballot the sole and exclusive representative of the
employees in an appropriate bargaining unit for purposes of collective
bargaining or negotiation. A certification election is ordered by the
Department, while a consent election is voluntarily agreed upon by the parties,
with or without the intervention by the Department.31

The purpose of certification election is to ascertain the wishes of the majority

of the employees in the appropriate bargaining unit, whether or not they should
be represented by a labor organization, and in the affirmative case, by which
particular labor organization.32

Whenever there is doubt as to whether a particular union represents the

majority of the rank-and-file employees, in the absence of a legal impediment,
the holding of a certification election is the most democratic method of
determining the employee choice of their bargaining representative. It is the
appropriate means whereby controversies and disputes on representation
may be laid to rest, by the unequivocal vote of the employees themselves.33

(i) In an unorganized establishment

An unorganized establishment is an establishment without a bargaining
representative. It may be filed by any legitimate labor organization,
including:
1. A national union or federation which has already issued a charter
certificate to its local/chapter participating in the certification election
or a local/chapter which has been issued a charter certificate by the
national union or federation.34
2. An employer may file a Petition for Certification Election when:
a. Requested to bargain collectively; and
b. No bargaining agent nor a registered CBA exists in the unit.35

The petition may be filed at any time, except within twelve (12) months of a
previous election (if any). Once a petition is filed by a legitimate labor
organization, the Med-Arbiter shall automatically order the conduct of a
certification election.36

31
Article 1, D.O. 40-03).
32
Reyes vs. Trajano, G.R. No. 84433, 1992.
33
Philippine Airlines Employees’ Association (PALEA) vs. Ferrer-Calleja, G.R. No. 76673, 1988.
34
Article 269, The Labor Code of the Philippines.
35
Article 270, The Labor Code of the Philippines.
36
Article 269, The Labor Code of the Philippines.

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(ii) In an organized establishment

An organized establishment is an establishment with a duly certified
bargaining agent and/or an existing CBA. It may be filed by any legitimate
labor organization, including:
1. A national union or federation which has already issued a charter
certificate to its local chapter participating in the certification
election.37 National union or federation shall not be required to
disclose the names of the local/chapter’s officers and members, but
shall attach to the petition the charter certificate it issued to its
local/chapter38; and
2. A local chapter which has been issued a charter certificate by the
national union or federation before the DOLE within the 60- day
freedom period.39

Requisites for holding a certification election in an organized

establishment (Labor Code, Article 268):
1. The Med-Arbiter shall automatically order an election by secret ballot
when the verified petition supported by at least 25% of all the
employees in the bargaining unit, questioning the majority status of
the incumbent bargaining agent;
2. Filed before the DOLE within the 60-day period before the expiration
of the five-year representation aspect of the CBA.40

The requisite written consent of at least 20% (now 25%) of the workers in
the bargaining unit applies to certification election only, and not to motions
for intervention.41

The proper time to file a petition for Certification Election depends on

whether the bargaining unit has a CBA or not. If it has no CBA, the petition
may be filed anytime except within 12 months of a previous election (if any).
If the bargaining unit has a CBA, the petition can be filed within the “freedom
period” which is the last 60 days of the 5th year of the CBA.

REQUIREMENTS FOR VALID CERTIFICATION ELECTION

1. The union should be legitimate which means that it is duly registered
and listed in the registry of legitimate labor unions of the BLR or that
its legal personality has not been revoked or cancelled with finality;

37
Article 268, The Labor Code of the Philippines.
38
Section 1, Rule VIII of D.O. 40-I- 15.
39
Article 268, The Labor Code of the Philippines.
40
Article 268, The Labor Code of the Philippines.
41
PAFLU vs. Calleja, G.R. No. 79347, 1989.

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2. In case of organized establishments, the petition for certification

election is filed during (and not before or after) the 60- day freedom
period of a duly registered CBA;
3. In case of organized establishments, the petition complied with the
25% written support of the members of the bargaining unit;
4. The petition is filed not in violation of any of the three (3) bar rules.

BARS TO THE HOLDING OF CERTIFICATION/CONSENT ELECTION

As a general rule, petition for certification may be filed at any time. The
exceptions, however, are the following:
1. Contract bar rule;
2. Deadlock bar rule;
3. Negotiation bar rule;
4. One-year bar rule.

CONTRACT BAR RULE

As a general rule, the representation status of the incumbent exclusive
bargaining agent which is a party to a duly registered CBA shall be for a
term of five (5) years from the date of effectivity of the CBA. No petition
questioning the majority status of the incumbent exclusive bargaining agent
or petition for certification election shall be filed.42

Exception: (Freedom period) Arts. 264, 265, 268: Within 60 days before
expiration of the 5-year term of the representational aspect of the CBA.

This freedom period is different from the sixty day period within which to
start negotiations for a new CBA.

Requisites for Contract-Bar Rule

1. Agreement is existing;
2. Ratified by the union membership;
3. It is adequate for it contains substantial terms and conditions for
employment;
4. It encompasses the employees in the appropriate bargaining unit;
5. It was not prematurely extended; the CBA was not hastily entered
into;
6. It is for a definite period;
7. No schism or mass disaffiliation affects the contracting union during
the lifetime of the agreement;
8. The contracting union is not defunct; and
9. The contracting union is not company dominated

42
Section 7, Rule XVII of D.O. 40-03.

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Exceptions: The existence of a CBA will not bar certification election in the
following instances:
1. CBA is not registered
2. CBA deregistered
3. CBA is incomplete in itself
4. CBA where the identity of the representative is in doubt43
5. CBA was hastily entered into, i.e. signed before the freedom period44
6. CBA entered into between the employer and the union during the
pendency for certification election45
7. CBA was concluded in violation of an order enjoining the parties from
entering into a CBA until the issue of representation is resolved
8. Referendum to register an independent union

DEADLOCK BAR RULE

Deadlock arises when there is an impasse, which presupposes reasonable
effort at good faith bargaining which, despite noble intentions, did not
conclude in an agreement between the parties.

Genuine Deadlock
1. The submission of the deadlock to a 3rd party conciliator or arbitrator;
or
2. The deadlock is the subject of a valid notice of strike or lockout46

Petition for certification election cannot be entertained if:

1. A duly certified union has commenced and sustained negotiations
with the employer in accordance with Article 261 within the 1-year
period referred to in Section 14.d of the IRR.
2. Before the filing of the petition for certification election, a bargaining
deadlock to which an incumbent or certified bargaining agent is a
party, had been submitted to conciliation or arbitration or had become
the subject of a valid notice of strike or lockout.

Requisites:
1. Parties must have negotiated in good faith;
2. Deadlock must have been submitted to voluntary conciliation or
arbitration or is subject of a valid notice of strike / lock-out.

43
Associated Labor Unions vs. Hon. Ferrer- Calleja, G.R. No. 85085, 1989.
44
Associated Trade Unions- ATU vs. Hon. Noriel, G.R. No. L-48367, 1979.
45
Vassar Industries EU vs. Estrella, G.R. No. L-46562, 1978.
46
National Congress of Unions in the Sugar Industry vs. Trajano, G.R. No. 67485, 1992.

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Deadlock Bar Rule is not applicable in Artificial Deadlock, or a deadlock

prearranged or preserved by collusion of the employer and the majority
union.47

NEGOTIATION BAR RULE

Negotiation bar rule exists when a union has already commenced and
sustained collective bargaining negotiations in good faith within the 1- year
period, but there is no CBA yet.

ONE-YEAR BAR RULE OR CERTIFICATION YEAR BAR RULE

No petition for a certification election may be filed within 1 year from the date
of a valid certification, consent, or run-off election, or from the date of entry
of a voluntary recognition of the union by the employer.

Certification year rule will apply even if the “No Union” choice won.
Therefore, for one year, no PCE will be entertained.48

The 12-month prohibition presupposes that there was an actual conduct of

election, i.e. ballots were cast and there was a counting of votes. In a case
where there was no certification election conducted precisely because the
first petition was dismissed on the ground that it did not include all the
employees who should be properly included in the collective bargaining unit,
the certification year bar does not apply.49

Date to be considered is when the election was conducted; if results are

appealed, then the date when appeal is finally resolved.

There is a failure of election when less than majority of the CBU members
voted. A failure of election shall not bar the filing of a motion for the
immediate holding of another certification or consent election may be filed
within 6 months from date of declaration of the failure of election.50

Certification Year Bar Rule will NOT APPLY in the following instances:
1. In a case where there was no certification election conducted
precisely because the first petition was dismissed on the ground that
it did not include all the employees who should be properly included
in the collective bargaining unit51;

47
Kaisahan ng Manggagawang Pilipino (KAMPIL-KATIPUNAN) vs. Trajano, G.R. No. 758110, 1991.
48
Samahang Manggagawa sa Permex vs. Secretary, G.R. No. 107792, 1998.
49
R Transport Corp. vs. Laguesma, G.R. No. 106830, 1993.
50
D.O. No. 40-03, Section 18, Rule IX.
51
R Transport Corp. vs. Laguesma, G.R. No. 106830, 1993.

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2. A failure of election where less than majority of the CBU members

voted. A failure of election shall not bar the filing of a motion for the
immediate holding of another certification or consent election may be
filed within 6 months from date of declaration of the failure of
election.52

Failure of election
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.53

A failure of election shall not bar the filing of a motion for the immediate
holding of another certification or consent election within 6 months from date
of declaration of failure of election.54

d. Run-off election
A Run-off Election refers to an election between the labor unions receiving the
two highest number of votes in a certification or consent election with three or
more choices, where such a certified or consent results in none of the three or
more choices receiving the majority of the valid votes cast; provided that the
total number of votes for all contending unions is at least 50% of the number
of votes cast.55

When an election which provides for three or more choices results in no choice
receiving a majority of the valid votes cast, a run-off election shall be
conducted between the labor unions receiving the two highest number of
votes.56

Procedure in Run-off Elections

The Election Officer shall motu propio conduct a run-off election within 10 days
from the close of the election proceedings between the labor unions receiving
the two highest numbers of votes.

Notice of run-off elections shall be posted by the Election Officer at least 5

days before the actual date of run-off election.

(i) Requirements

52
D.O. No. 40-03, Section 18, Rule IX.
53
Section 17, Rule IX of D.O. 40-03.
54
Section 19, Rule IX of D.O. 40-03.
55
Section 1(uu), Rule I, Book V IRR, as amended by D.O. No. 40-03, Series of 2003.
56
Article 268 [256], The Labor Code of the Philippines.

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Requirements for Run-Off Election

1. A valid election took place because majority of the CBU members
voted;
2. There are three or more choices in the election (including no union);
3. Not one of the choices obtained majority of the valid votes;
4. Total number of votes for all contending unions is at least 50% of the
number of votes cast;
5. There is no unresolved challenge of voter or election protest.

The other unions (those which did not receive the two highest number of
votes) will no longer participate in the run-off election. “No Union” shall not
be a choice in the run-off election.57

Illustration:
In a certification election involving 4 unions, namely: Union A, Union B, Union
C, and Union D, where there are 100 eligible voters who validly cast their
votes, and the votes they each garnered are as follows: Union A - 35; Union
B - 25; Union C - 10; Union D - 15; and No Union - 1, a run-off election may
be conducted between Union A and Union B because:
a. Not one of the unions mustered the majority vote of 51 votes but Union
A and Union B got the first two highest number of votes;
b. If all the votes for the contending unions are added up, it will result in
at least 50% of the valid votes cast (Union A - 35; Union B - 25; Union
C - 10; Union D - 15 for a total of 85 or 85%);
c. There are no objections or challenges which, if sustained, can
materially alter the results of the election.

e. Re-run election
A Re-run Election refers to an election conducted to break a tie between
contending unions, including between “no union” and one of the unions. It shall
likewise refer to an election conducted after a failure of election has been
declared by the election officer and/or affirmed by the mediator-arbiter.58

Duty of Election Officer (EO)

1. Immediately notify the parties of a Re-run Election;
2. Cause the posting of the NOTICE within 5 days from the Certification,
Consent or Run-off Election. The Re-run shall be conducted within 10
days after the posting.59

57
Section 1, Rule X of D.O. 40-03.
58
Section 1(tt), Rule I, Book V IRR, as amended by D.O. No. 40-03, Series of 2003.
59
Section 18, Rule IX, D.O. No. 40-I- 15.

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The re-run election shall be conducted within ten (10) days after the posting
of the notice. The choice who receives the highest votes cast shall be certified
and declared as winner.

f. Consent election
"Certification Election" or "Consent Election" refers to the process of
determining through secret ballot the sole and exclusive representative of the
employees in an appropriate bargaining unit for purposes of collective
bargaining or negotiation. A certification election is ordered by the
Department, while a consent election is voluntarily agreed upon by the parties,
with or without the intervention by the Department 60

Election voluntarily agreed upon by the parties, with or without the intervention
of the Department of Labor and Employment, to determine the issue of
majority representation of all the workers in the appropriate collective
bargaining unit.61

Procedure in Consent Elections if Agreed in the Course of Proceeding

of Petition for certification Election
1. In case the contending unions agree to a consent election, the Med-
Arbiter shall not issue a formal order calling for the conduct of certification
election but shall enter the fact of the agreement in the minutes of the
hearing.
2. The minutes of the hearing shall be signed by the parties and attested to
by the Med-Arbiter.
3. The employer may be required to submit the certified list of employers in
the bargaining unit or where necessary, the payrolls at the time of filing
of the petition.62
4. The Med-Arbiter shall, immediately thereafter, forward the records of the
petition to the Regional Director or his/her authorized representative for
the determination of the Election Officer by the contending unions
through raffle.
5. The first pre-election conference shall be scheduled within 10 days from
the date of entry consent election agreement. (See Annex G) 63

g. Affiliation and disaffiliation of the local union from the mother union

Application for registration of independent labor unions, chartered locals,

workers’ associations shall be filed with the Regional Office where the applicant

60
Book V, Rule 1, Section 1(h)
61
IRR Labor Code, Section 1[h], Rule I, Book V
62
Section 2, Rule IX
63
Section 11, Rule VIII of D.O. 40- 03

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principally operates. It shall be processed by the Labor Relations Division at the

Regional Office in accordance with Sections 2-A, 2-C, and 2-E of Rule II.

Applications for registration of federations, national unions, chartered locals,

workers’ associations shall be filed with the Bureau or the Regional Offices, but
shall be processed by the Bureau in accordance with Sections 2-B and 2-D of
Rule III.64

Affiliation of Local or Independent Unions

A local union does not owe its existence to the federation with which it is
affiliated. It is a separate and distinct voluntary association owing its creation to
the will of its members. Mere affiliation does not divest the local union of its
personality; neither does it give the mother federation the license to act
independently of the local union.

It only gives rise to a contract of agency, where the former acts in representation
of the latter. Hence, local unions are considered principals while the federation
is deemed to be merely their agent.as such principals, the unions are entitled
to exercise the rights and privileges of a legitimate labor organization, including
the right to seek certification as the sole and exclusive bargaining agent in the
appropriate employer unit. 65

Disaffiliation of Chartered Local

The right of a local union to disaffiliate form its mother federation is not a novel
thesis unilluminated by case of law. In the landmark case of Liberty Cotton Mills
Workers Union vs. Liberty Cotton Mills. Inc.66, The Court upheld the right of
local unions to separate from their mother federation on the ground that as
separate and voluntary associations, local unions do not owe their creation and
existence to the national federation to which they are affiliated but, instead, to
the will of their members. The sole essence of affiliation is to increase, by
collective action the common bargaining power of local unions for the effective
enhancement and protection of their interests. 67

Yet the local unions remain the basic units of association, free to serve their
own interests subject to the restraints imposed by the constitution and by-laws
of the national federation, and free also to renounce the affiliation upon the

64
Department Order No. 40-03, Rule III, Sections 1 and 2
65
Coastal Subic Bay Terminal, Inc. vs Department of Labor and Employment-Office of the Secretary,
G.R. No. 157117, November 20, 2006
66
G.R. No. L-33987, September 4, 1975, 66 SCRA 512
67
Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills. Inc. (G.R. No. L-33987, September 4,
1975, 66 SCRA 512

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 LABOR RELATIONS

terms laid down in the agreement which brought such affiliation into existence.
Such dictum has been punctiliously followed since then. 68

Rights and conditions of membership

a. Nature of relationship
The labor union or workers’ association shall be deemed registered and
vested with legal personality on the date of issuance of its certificate of
registration or certificate of creation of chartered local.

Such legal personality may be questioned only through an independent

petition for cancellation of union registration in accordance with Rule XIV of
these Rules, and not by way of collateral attack in petition for certification
election proceedings under Rule VIII. 69

(i) Member-Labor union

Subject to Article 238, if the applicant for registration is a federation or
a national union, itshall, in addition to the requirements of the preceding
Articles, submit the following:
a. Proof of the affiliation of at least one ten (10) locals or chapters,
each of which must be a duly recognized collective bargaining
agent in the establishment or industry in which it operates,
supporting the registration of such applicant federation or national
unions; and
b. The names and addresses of the companies where the locals or
chapters operate and the list of all the members of each company
involved.
The Bureau or the Office of the Secretary shall decide the appeal
within twenty (20) days from receipt of the records of the case.

(ii) Labor union federation

The application for registration of federations and national unions shall
be accompanied by the following documents:
1. A statement indicating the name of the applicant labor union, its
principal address, the name of its officers and their respective
addresses;
2. The minutes of the organizational meeting(s) and the list of the
employees who participated in the said meeting(s):
3. The resolution or affiliation of at least 10 legitimate labor
organizations, whether independent unions or chartered locals, each

68
Philippine Skylanders, Inc. vs. National Labor Relations Commission, G.R. No, 127374, January
31, 2002
69
Section 8, Rule IV, Department Order No. 40-03

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of which must be a duly certified or recognized bargaining agent in

the establishment where it seeks to operate; and
4. The name and addresses of the companies where the affiliate
operate and the list of all the members in each company involved.

Labor Organizations operating within an identified industry may also

apply for registration as a federation or national union within the specified
industry by submitting to the Bureau the same set of documents.70

(a) Disaffiliation
Article 245 provides that the Certificate of Registration of any
legitimate labor organization, whether national or local, may be
cancelled by the Bureau, after due hearing, only on the grounds
specified in Article 247 hereof.

Cancellation of Union Registration - Where to file

Subject to the requirements of notice and due process, the
registration of any legitimate independent labor union, chartered local
and workers’ association may be canceled by the Regional Director,
or in the cases of federations, national or industry unions and trade
unions centers, by the Bureau Director, upon the filling of an
independent complaint or petition for cancellation. 71

(b) Substitutionary doctrine

Doctrine of Substitution" referred to in General Maritime Stevedores'

Union vs. South Sea Shipping Lines72. There it was remarked:

We also hold that where the bargaining contract is to run for more
than two years, the principle of substitution may well be adopted and
enforced by the CIR to the effect that after two years of the life of a
bargaining agreement, a certification election may be allowed by the
CIR; that if a bargaining agent other than the union or organization
that executed the contract, is elected, said new agent would have to
respect said contract, but that it may bargain with the management
for the shortening of the life of the contract if it considers it too long,
or refuse to renew the contract pursuant to an automatic renewal
clause.

70
Section 2(B), Rule III, Department Order No. 40-03
71
Section 1, Rule XIV, Department Order No. 40-03
72
L-14689, July 26, 1960

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This principle, formulated by the NLRB as its initial compromise

solution to the problem facing it when there occurs a shift in
employees' union allegiance after the execution of a bargaining
contract with their employer, merely states that even during the
effectivity of a collective bargaining agreement executed between
employer and employees thru their agent, the employees can change
said agent but the contract continues to bind them up to its expiration
date. They may bargain however for the shortening of said expiration
date.

In formulating the "substitutionary" doctrine, the only consideration

involved was the employees' interest in the existing bargaining
agreement. The agent's interest never entered the picture. In fact, the
justification for said doctrine was: xxx that the majority of the
employees, as an entity under the statute, is the true party in interest
to the contract, holding rights through the agency of the union
representative. Thus, any exclusive interest claimed by the agent is
defeasible at the will of the principal. 73

h. Union dues and special assessments

(i) Requirements for validity

Special Assessment
Article 250 has three (3) requisites for the validity of the special assessment
for union’s incidental expenses:
(1) Authorization by a written resolution of the majority of all members at the
general membership meeting called for the purpose;
(2) secretary ‘s record of the minutes of the meeting; and
(3) Individual written authorization for check off duly signed by the
employees concerned.

Clearly, attorney’s fees may not be deducted or checked off form any amount
due to an employee without his written consent. From all the foregoing, we
are of the considered view that public respondent did not act with grave
abuse of discretion in ruling that the workers through their union should be
made to shoulder the expenses incurred for the services of a lawyer. And
accordingly, the reimbursement should be charged to the union’s general
fund or account. No deduction can be made from the salaries of the
concerned employees other than those mandated by law.74

i. Agency fees

73
General Maritime Stevedores' Union vs. South Sea Shipping Lines, L-14689, July 26, 1960
74
Gabriel vs. Secretary of Labor and Employment, G.R. No. 115949, March 16, 2000

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Agency fees are the amounts deducted from the salary of a non-union
member of the collective bargaining unit. It may be deducted even without the
consent of the concerned employee.

Based on Article 259, employees of an appropriate bargaining unit who are

not members of the recognized collective bargaining agent may be assessed
a reasonable fee equivalent to the dues and other fees paid by members of
the recognized collective bargaining agent, if such non-union member accept
the benefits under the collective bargaining agreement: Provided, That the
individual authorization required under Article 251, paragraph (o) of this Code
shall not apply to the non-members of the recognized collective bargaining
agent.

B. Right to collective bargaining

1. Duty to bargain collectively
The duty to bargain collectively means the performance of a mutual obligation to
meet and convene promptly and expeditiously in good faith for the purpose of
negotiation an agreement with respect to wages, hours of work and all other terms
and conditions of employment including proposals for adjusting any grievance or
question arising under such agreement and executing a contract incorporating
such agreements and executing contract incorporating such agreements if
requested by either party but such duty does not compel any party to agree to a
proposal or to make any concession.

While the law makes it an obligation for the employer and the employees to
bargain collectively with each other, such compulsion does not include the
commitment to precipitately accept or agree to the proposals of the other. All it
contemplates is that both parties should approach the negotiation with an open
mind and make a reasonable effort to reach a common ground of agreement.75

a. When there is absence of a CBA

In absence of an agreement OR other voluntary arrangement providing for a
more expeditious manner of collective bargaining, it shall be the duty of the
employer AND the representatives of the employees to bargain collectively in
accordance with the provisions of this Code.

The duty to bargain collectively where no CBA exists involves the performance
of a mutual obligation:

75
Manila Mining Corp. Employees Association-Federation of Free Work Chapter vs. Manila Mining
Corp., G.R. Nos. 178222-23, September 29, 2010

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1. To meet and convene promptly and expeditiously in good faith for the
purpose of negotiating an agreement with respect to wages, hours of work,
and all other terms and conditions of employment including proposals for
adjusting any grievances or questions arising under such agreement; and
2. To execute a contract incorporating such agreements, if requested by
either party.76

Essentially, the duty to bargain in this situation still requires the

performance of the obligation by the employer and the union to meet,
convene and confer for collective purposes.

b. When there is a CBA

When there is a collective bargaining agreement, the duty to bargain

collectively shall also mean that neither party shall terminate nor modify such
agreement during its lifetime. However, either party can serve a written notice
to terminate or modify the agreement at least sixty (60) days prior to its
expiration date. 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 as to which of the
economic provisions of the existing agreement are to retain force and effect,
therefore, it must be understood as encompassing all the terms and conditions
in the said agreement.

Contract Bar Rule stated that the existence of the CBA (a contract between
the employer and the union) bars the modification or termination of the CBA
except during the freedom period.

The purpose obviously is to ensure stability in the relationships of the workers

and the management by preventing frequent modifications of any collective
bargaining agreement earlier entered into by them in good faith and for the
stipulated original period.

2010 Bar Examination Question

ABS Company and U labor union have been negotiating for a new
Collective Bargaining Agreement (CBA) negotiating for a new Certificate
Bargaining Agreement (CBA) but failed to agree on certain economic

76
Article 263, Labor Code

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provisions of the existing agreement. In the meantime, the existing CBA

expired. The company thereafter refused to pay the employees their
midyear bonus, saying that the CBA which provided for the grant of the
midyear bonus to all company employees had already expired. Are the
employees entitled to be paid their midyear bonus? Explain your answer.
(3%)

Suggested Answer:

Yes, the employees are entitled to be paid their midyear bonus. Article 253
provides that the CBA shall remain effective and enforceable even after the
expiration of the period fixed by the parties as long as no new agreement is
reached by them and no petition for certification election is filed. These are the
automatic renewal clauses of the Collective Bargaining Agreement.

2. Collective Bargaining Agreement (CBA)

a. Mandatory provisions of CBA
(i) Grievance machinery

Establishment of a grievance machinery

The parties to a CBA shall include therein provisions that will ensure the
mutual observance of its terms and conditions. They shall establish a
machinery for the adjustment and resolution of grievances arising from the
interpretation or implementation of their CBA AND those arising from the
interpretation or enforcement of company personnel policies.77

Establishment of Grievance Machinery (Omnibus Rule Implementing

the Labor Code, Rule XIX, Section 1)
1. By provision in the CBA
2. In the absence of applicable provision in the CBA, a Grievance
committee shall be created within 10 days from the signing of the
CBA.

The grievance committee shall be composed of at least 2 representatives

each from the members of the bargaining unit, designated by the union and
the employer, unless otherwise agreed upon by the parties.

“Grievance” or “Grievable Issue”

1. Interpretation or implementation of the CBA
2. Interpretation or enforcement of company personnel policies

77
Article 273, Labor Code

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3. Any claim by either party that the other party is violating any
provisions of the CBA or company personnel policies.

In order to be grievable, the violations of the CBA should be ordinary and

not gross in character; otherwise, they shall be considered as unfair labor
practice (ULP).

Gross violation of the CBA is defined as flagrant and/or malicious refusal

by a party thereto to comply with the economic provisions thereof.
Accordingly, violations of a CBA, except those which are gross in character,
shall no longer be treated as ULP, and shall be resolved as grievances.78

If what is violated, therefore, is a non-economic or a political provision of

the CBA, the same shall not be considered as unfair labor practice and may
thus be processed as a grievable issue in accordance with and following
the grievance machinery laid down in the CBA.

In the case of Liberal Labor Union vs. Phil Can Co.1952, the Court declared
as illegal the strike staged by the union for not complying with the grievance
procedure provided in the collective bargaining agreement ruling that “xxx
the main purpose of the parties in adopting a procedure in the settlement
of their disputed is to prevent a strike. This procedure must be followed in
its entirety if it is to achieve its objective. xxx strikes held in violation of the
terms contained in the collective bargaining agreement are illegal,
especially when they provide In abandoning the grievance proceedings and
stubbornly refusing to avail of the remedies under the CBA, respondent
Union violated the mandatory provisions of the collective bargaining
agreement.79

(ii) Voluntary arbitration

Unresolved grievances will be referred to voluntary arbitration.

For this purpose, parties to a collective bargaining agreement shall name
and designate in advance a voluntary arbitrator or panel of voluntary
arbitrators or include in the agreement a procedure for the selection of such
voluntary arbitrator or panel of voluntary arbitrators, preferably from the
listing of qualified voluntary arbitrators duly accredited by the Board.80

Exclusive and Original Jurisdiction Over Unresolved Grievances

78
Article 274, Labor Code
79
San Miguel Corporation vs. NLRC, G.R. No. 99266, 1999
80
Section 1, Rule XIX, Book V, IRR

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a. Interpretation or implementation of the CBA

b. Interpretation or enforcement of company personnel policies
c. Violations of a CBA which are not gross in character (gross being
flagrant and/or malicious refusal to comply with the economic
provisions of [the CBA])81

Note: Gross violations of the CBA shall mean flagrant and/or malicious
refusal to comply with the economic provisions of such agreement.

Termination Cases: Plenary Jurisdiction of Voluntary Arbitrator vis-à-

vis Labor Arbiter
Termination cases arising in or resulting from the interpretation and
implementation of CBAs and interpretation and enforcement of company
personnel policies which were initially processed at the various steps of the
plant level Grievance Procedures under the parties' CBAs fall within the
original and exclusive jurisdiction of the VA.

If such is filed before the LA, these cases shall be dismissed by the LA for
lack of jurisdiction and referred to the concerned NCMB Regional Branch
for appropriate action towards an expeditious selection by the parties of a
VA or Panel of Arbitrators based on the procedures agreed upon in the
CBA.82

Even if the specific issue brought before the arbitrators merely mentioned
the question of “whether an employee was discharged for just cause,” they
could reasonably assume that their powers extended beyond the
determination thereof to include the power to reinstate the employee or to
grant back wages. In the same vein, if the specific issue brought before the
arbitrators referred to the date of regularization of the employee, law and
jurisprudence gave them enough leeway as well as adequate prerogative
to determine the entitlement of the employees to higher benefits in
accordance with the finding of regularization.83

Other Labor Disputes

Article. 275. Jurisdiction Over Other Labor Disputes. – The VA or panel of

VAs, upon agreement of the parties, shall also hear and decide all other
labor disputes including ULP and bargaining deadlocks.

81
Article 274, Labor Code
82
Policy Instruction #56 (April 6, 1993)
83
Manila Pavilion Hotel, etc. vs. Henry Delada, G.R. No. 189947 (2011)].

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Article 274. Jurisdiction of Voluntary Arbitrators or Panel of Voluntary

Arbitrators. – The Commission, its Regional Offices and the Regional
Directors of the DOLE: 1. Shall not entertain disputes, grievances or
matters under the exclusive and original jurisdiction of the Voluntary
Arbitrator or panel of Voluntary Arbitrators and 2. Shall immediately dispose
and refer the same to the grievance machinery or Voluntary Arbitration
provided in the Collective Bargaining Agreement.

Article 224 (c). Jurisdiction of the Labor Arbiters and the Commission. –
Cases arising from the interpretation or implementation of CBAs and those
arising from the interpretation or enforcement of company personnel
policies shall be disposed of by the LA by referring the same to the
grievance machinery and VA as may be provided for in said agreements.

Option – Voluntary Arbitration

Article 278 (h). Strikes, Picketing and Lockouts. – Before or at any stage
of the compulsory arbitration process, the parties may opt to submit their
dispute to voluntary arbitration.

Summary of Arbitrable Issues

a. Interpretation or implementation of the CBA84
b. Interpretation or enforcement of company personnel policies85
c. Violations of a CBA which are not gross in character (gross being
flagrant and/or malicious refusal to comply with the economic
provisions of [the CBA])86
d. All other labor disputes including ULP and bargaining deadlock, if the
parties agree87
e. Wage distortions arising from application of any wage orders in
organized establishments88
f. Unresolved grievances arising from the interpretation and
implementation of the productivity incentives program under RA
6971.89

In general, the arbitrator [“VA”] is expected to decide those questions

expressly stated and limited in the submission agreement. However, since
arbitration is the final resort for the adjudication of disputes, the arbitrator
can assume that he has the power to make a final settlement.

[The VA has] plenary jurisdiction and authority to interpret the [CBA] and
to determine the scope of his [or her] own authority. [...] Subject to judicial
review, this leeway of authority [and] adequate prerogative is aimed at

84
Article 274, Labor Code
85
Id.
86
Id.
87
Article 275, Labor Code
88
Article 124, Labor Code
89
Book V, IRR Rule XIX. Sec. 4

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accomplishing the rationale of the law on voluntary arbitration – speedy

labor justice.90

Motion for Reconsideration

The absence of a categorical language in Art [276] does not preclude the
filing of a motion for reconsideration of the VA’s decision within the 10-day
period.91

Appeal
The decision of a Voluntary Arbitrator or panel of Voluntary Arbitrators is
appealable by ordinary appeal under Rule 43 of the Rules of Civil
Procedure directly to the Court of Appeals92

But See: Guagua National Colleges vs. CA, G.R. 188412, Aug. 28, 2018,
the 10-day period under Article 276 of the Labor Code refers to the filing of
a motion for reconsideration vis-àvis the Voluntary Arbitrator's decision or
award, while the 15 days is the period to file petition for review under Rule
43 of the Rules of Court.

(iii) No strike-no lockout clause

“No Strike, No Lockout” Clause in the Collective Bargaining Agreement

(CBA) is an expression of the firm commitment of the parties thereto that,
on the part of the union, it will not conduct a strike during the effectivity of
the CBA, and on the part of the employer, it will not a stage a lockout during
the lifetime thereof.

The term “No Strike, No Lockout” may be a misnomer since it does not
really bar the conduct of strike or lockout on all occasions or grounds. “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 forced wage or other concessions
from the employer that are not mandated or granted by any law.93The “No
Strike, No Lockout” clause is inapplicable to prevent a strike or lockout
which is grounded on unfair labor practice (ULP).94

(iv) Labor management council

Any provision of law to the contrary notwithstanding, workers shall have

the right:
a. To participate in policy and decision making processes of the
establishment where they are employed insofar as said processes will
directly affect their rights, benefits and welfare.
90
Goya, Inc. vs. Goya, Inc. Employees UnionFFW, G.R. No. 170054 (2013)
91
Teng v. Pahagac, G.R. 169704 (2010)]
92
AMA Computer College-Santiago City, Inc. vs. Nacino, G.R. No. 162739 (2008)
93
Panay Electric Company, Inc. vs. National Labor Relations Commission 248 SCRA 688, October
04, 1995
94
Master Iron Labor Union vs. NLRC 219 SCRA 47, February 17, 1993

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b. To form labor-management councils, for this purpose.95

Selection of Representatives

In organized establishments,
• the workers’ representatives to the council shall be nominated by the
exclusive bargaining representative.

In establishments where no legitimate labor organization exists,

• the workers representative shall be elected directly by the employees at
large [Sec. 2, Rule XXI, Book V, IRR].

Eligible Voter
Eligible voter refers to a voter belonging to the appropriate bargaining unit that
is the subject of the petition for certification election [Sec. 1(q), Rule VIII, Book
V, IRR].

All employees who are members of the appropriate bargaining unit three (3)
months prior to the filing of the petition shall be eligible to vote [Sec. 6, Rule IX,
Book V, IRR].

Note: Rule VIII, Sec. 14 (f) and Rule IX, Sec. 6 refer to employees as those
employed 3 months prior to the issuance of the order/the filing of the petition
for certification election while Rule IX, Sec. 2 reckon the period of employment
from the “time of filing the petition”. This difference has not been resolved in
any case before the Supreme Court.

All rank and file employees in the appropriate bargaining unit, whether
probationary or permanent are entitled to vote. The Code makes no distinction
as to their employment status [...] All they need to be eligible to support the
petition is to belong to a bargaining unit.96

Rationale for Non-Distinction Policy

Collective bargaining covers all aspects of the employment relation and the
resultant CBA binds all employees in the bargaining unit. All rank and file
employees, probationary or permanent, have a substantial interest in the
selection of the bargaining representative [Airtime Specialists, Inc. v. Ferrer-
Calleja, supra].

Dismissed Employees97

General Rule: [Dismissed] employees [who] contested legality of the dismissal

in a forum of appropriate jurisdiction at the time of the issuance of the order for
conduct of a certification election.

95
Article 267, Labor Code
96
Airtime Specialists, Inc. v. Ferrer-Calleja, G.R. No. 80612-16 (1990)
97
Sec. 6, Rule IX, Book V, IRR

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Exception: Dismissal was declared valid in a final judgment at the time of the
conduct of the certification election.

Disagreement Over Voters’ List

All contested voters shall be allowed to vote [but] their votes shall be
segregated and sealed in individual envelopes.98

Voting List and Vote

The basis of determining voters may be agreed upon by the parties (i.e. the use
of payroll).99

Non-Participation in Previous Election has No Effect

Failure to take part in previous elections is no bar to the right to participate in

future elections. No law, administrative rule or precedent prescribes forfeiture
of the right to vote by reason of neglect to exercise the right in past certification
election.100

b. Duration

Terms of a Collective Bargaining Agreement:

Any Collective Bargaining Agreement that the parties may enter into shall,
insofar as the representation aspect is concerned, be for a term of five (5) years
[...] All other provisions of the Collective Bargaining Agreement shall be
renegotiated not later than three (3) years after its execution.101

(i) For economic provisions

CBA Duration for economic provisions is 3 years.

(ii) For non-economic provisions

CBA Duration for Non-Economic Provisions is 5 years for representational
or political issues; cannot be renegotiated to extend beyond 5 years.102

(iii) Freedom period

The freedom period refers to the sixty (60) days span prior to the expiration
of the CBA. It is the time when the parties may terminate or modify the terms
and conditions of the CBA.

98
Sec. 6, Rule IX, Book V, IRR
99
Acoje Workers Union vs. NAMAWU, G.R. No. L-18848 (1963)
100
Reyes v. Trajano, G.R. No. 84433 (1992)
101
Article 265, Labor Code
102
FVC Labor Union-PTGWO vs. SANAMAFVC-SIGLO, G.R. No. 176249 (2009)

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During the sixty-day period immediately before the date of expiry of such a
five-year term of the Collective Bargaining Agreement, a petition
questioning the majority status of the incumbent bargaining agent may be
entertained and a certification election shall be conducted by the
Department of Labor and Employment (DOLE).

It is also the time when a petition for certification election to challenge the
majority of the contracting union. A labor union may disaffiliate from the
mother union to form a local or independent union only during the 60-day
freedom period immediately preceding the expiration of the CBA Any
petition filed before or after the 60-day freedom period shall be dismissed
outright.103

Disaffiliation Prior to the Freedom Period

Generally, a labor union may disaffiliate from the mother union to form a
local or independent union only during the 60-day freedom immediately
preceding the expiration of the CBA. However, even before the onset of the
freedom period, disaffiliation may be carried out when there is a shift of
allegiance on the part of the majority of the members of the union. (Alliance
of Nationalist and Genuine Labor Organization.104

3. Union Security is a generic term which is applied to and comprehends “closed

shop,” “union shop,” “maintenance of membership” or any other form of
agreement which imposes upon employees the obligation to acquire or retain
union membership as a condition affecting employment.105

Union Security Clause is an indirect restriction on the right of an employee to

self-organization. It is a solemn pronouncement of a policy that while an
employee is given the right to join a labor organization, such right should only be
asserted in a manner that will not spell the destruction of the same
organization.106

As to the coverage
General Rule: As a rule, all employees in the bargaining unit covered by the
union security clause are subject to its terms.

Exceptions:

103
Article 264, Labor Code
104
ANGLO-KMU) vs. Samahan ng mga Manggagawang Nagkakaisa sa Manila Bay Spinning Mills at
J.P. Coats [SAMANA BAY], G.R. No. 118562, July 5, 1996
105
NUWHRAIN vs. NLRC, G.R. No. 179402, September 30, 2008
106
Tanduay Distillery Labor Union vs. NLRC, G.R. No. 75037, April 30, 1987

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1. Employees who are already members of another union at the time of the
signing of the collective bargaining agreement may not be compelled by any
union security clause to join any union.
2. Employees already in service at the time the closed shop union security
clause took effect.
a. A closed shop provision in a CBA is not to be given a retroactive effect
as to preclude its being applied to employees already in service.
3. Any employee who, at the time the union security clause took effect, is a
bona fide member of religious organization which prohibits its members from
joining labor unions on religious grounds.
4. Confidential employees who are excluded from the rank-and-file bargaining
unit.
5. Employees excluded from the union security provisions by express terms of
the agreement.

a) Closed Shop
Condition for Employment - An arrangement wherein only union members
are permitted to work and are required to maintain their status as active
union members throughout the life of the arrangement.

A closed shop is an organization where, pursuant to a contract between the

employer and his employees or their representatives, no individual may be
employed in any or certain agreed departments of the organization unless
such individual is, becomes, and, for the duration of the agreement, remains
a member in good standing of a union that is entirely composed of or of which
the employees in interest are a part.107

b) Maintenance for Membership Shop

Condition for Continued Employment - A contract in which current and
future employees are not required to join the SEBA, but must do so once
they do in order to keep their jobs until they are promoted, transferred out of
the bargaining unit, or the contract expires.

c) Union Shop
Condition for Continued Employment - There is union shop when all new
regular employees are required to join the union within a certain period as a
condition for their continued employment.

d) Modified Union Shop

107
General Milling Corporation (GMC) vs. Casio, G.R. No. 149552, March 10, 2010

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Condition for Continued Employment of Future Employees - Employees

who are not union members at the time of signing the contract need not join
the union, but all workers hired thereafter must join.108

e) Agency Shop
Employees belonging to an appropriate collective bargaining unit who are
not members of the recognized collective bargaining agent may be assessed
a reasonable fee equivalent to the dues and other fees paid by members of
the recognized collective bargaining agent, if such non-union members
accept the benefits under the collective agreement.

Provided, That the individual authorization required under Article [250],

paragraph (o) of [the Labor] Code shall not apply to non-members of the
recognized collective bargaining agent 109

Termination Due to Union Security Provision

By the time that the CBA is in effect, dissension within the bargaining unit is avoided
and the union is strengthened by termination of employment under a union security
clause. By increasing its membership, the authorized bargaining representative
improves its position in opposition to other unions who might desire to assert
majority representation.

Requisites for the Enforcement of Union Security Clauses

In terminating the employment of an employee by enforcing the union security
clause, the employer needs only to determine and prove that:
a. The union security clause is applicable;
b. The union is requesting for the enforcement of the union security provision
in the CBA;
c. There is sufficient evidence to support the union’s decision to expel the
employee from the union110

4. Unfair Labor Practice in collective bargaining

Unfair labor practice refers to acts that violate the workers’ right to organize.
The prohibited acts are related to the workers’ right to self-organization and to
the observance of a CBA.

a) Bargaining in bad faith - The act of the employer in refusing to comply with
the terms and conditions of a CBA constitutes bargaining in bad faith and is
considered an unfair labor practice.

108
Azucena
109
Article 259 (e), Labor Code
110
Alabang Country Club vs. NLRC, G.R. No. 170287, February 14, 2008

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Here, the laws invite and contemplate a collective bargaining contract, but they
do not compel one.111

b) Refusal to bargain
1. Refusal to bargain when there is an unresolved petition for union
cancellation
2. Employer’s suspension of operations in order to forestall a demand for
collective bargaining
3. Implied refusal

c) Individual bargaining - It is an unfair labor practice for an employer operating

under a CBA to negotiate with his employees individually. That constitutes
interference because the company is still under obligation to bargain with the
union as the bargaining representative.

Individual bargaining contemplates a situation where the employer bargains

with the union through the employees instead of the employees through the
union.112

d) Blue sky bargaining - defined as "unrealistic and unreasonable demands in

negotiations by either or both labor and management, where neither concedes
anything and demands the impossible." It actually is not collective bargaining
at all.113

e) Surface bargaining - defined as "going through the motions of negotiating,"

without any real intent to reach an agreement.

It violates the Act's requirement that parties negotiate in "good faith." It is

prohibited because the bargaining status of a union can be destroyed by going
through the motions of negotiating almost as easily as by bluntly withholding
recognition […] As long as there are unions weak enough to be talked to death,
there will be employers who are tempted to engage in the forms of collective
bargaining without the substance.114

5. Unfair Labor Practice (ULP)

111
Tabangao Shell Refinery Employees Association vs. Pilipinas Shell Petroleum Corporation, G.R.
No. 170007, April 7, 2014
112
The Insular Life Assurance Co. Ltd., Employees Assn. vs. Insular Life Assurance Co. Ltd, G.R. No.
L-25291, January 30, 1971
113
Roberts Dictionary of Industrial Relations as cited in Standard Bank Chartered Employees Union
vs. Confesor, G.R. No. 114974 June 16, 2004
114
K-MART Corporation vs. NLRB, 626 F.2d 704 (1980)].

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a) Nature of ULP:
1. inimical to the legitimate interests of both labor and management,
including their right to bargain collectively and otherwise deal with each
other in an atmosphere of freedom and mutual respect
2. disrupt industrial peace
3. hinder the promotion of healthy and stable labor-management relations
4. violations of the civil rights of both labor and management but are also
criminal offenses115

b) ULP of employers
1. Interference, Restraint or Coercion - To interfere with, restrain or
coerce employees in the exercise of their right to self-organization.116
2. Yellow Dog Contracts - To require as a condition of employment that a
person or an employee shall not join a labor organization or shall
withdraw from one to which he belongs.117
3. Contracting Out Services Which Discourage Unionism - To contract
out services or functions being performed by union members when such
will interfere with, restrain or coerce employees in the exercise of their
right to self-organization.118
4. Company Union - To initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor organization, including
the giving of financial or other support to it or its organizers or
supporters.119
5. Discrimination to Encourage or Discourage Unionism - To
discriminate in regard to wages, hours of work and other terms and
conditions of employment in order to encourage or discourage
membership in any labor organization.120
6. Discrimination for Having Given or About to Give Testimony - To
dismiss, discharge or otherwise prejudice or discriminate against an
employee for having given or being about to give testimony.121
7. Violation of Duty to Bargain Collectively - To violate the duty to
bargain collectively as prescribed by this Code.122
8. Payment of Negotiation or Attorney’s Fees - To pay negotiation or
attorney's fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute.123

115
Article 258, Labor Code
116
Article 259 (a), Labor Code
117
Article 259 (b), Labor Code
118
Article 259 (c), Labor Code
119
Article 259 (d), Labor Code
120
Article 259 (e), Labor Code
121
Article 259 (f), Labor Code
122
Article 259 (g), Labor Code
123
Article 259 (h), Labor Code

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9. Violation of CBA - To violate a collective bargaining agreement.124

c) ULP of labor organizations

1. Restraint or Coercion - to restrain or coerce employees in the exercise
of their right to self-organization. However, a labor organization shall
have the right to prescribe its own rules with respect to the acquisition or
retention of membership.125
2. Discrimination - to intentionally or knowingly cause an employer to treat
an employee unfairly, including by refusing them membership in an
organization, or to fire an employee for any reason other than those that
are typically used to grant other members access to membership or the
ability to continue their membership.126
3. Violation of Duty or Refusal to Bargain - To violate the duty, or refuse
to bargain collectively with the employer, provided it is the representative
of the employees.127

C. Right to peaceful concerted activities

Concerted activity is any activity by individual employees who are united in
pursuit of a common goal. For an activity to be considered “concerted”, the action
must be engaged in with or on the authority of other employees, and not solely by
and on behalf of the employee himself. Concerted activity includes organized
employee protests as well as spontaneous, informal employee conduct such as
employees participating in a group protest that spontaneously happens in the
workplace to protest working conditions, hiring practices, employee discipline, or
work assignments.128

Concerted activities refer to the right of the workers to act together in order to
protect their rights and improve their living conditions.

Concerted activities are guaranteed both under the Constitution and the law

Constitutional bases
The State affirms labor as a primary social economic force. It shall protect the
rights of workers and promote their welfare.129 The twin rights to strike and to
picket certainly fall under the ambit of protection of this provision.

124
Article 259 (i), Labor Code
125
Article 260 (a), Labor Code
126
Article 260 (b), Labor Code
127
Article 260 (c), Labor Code
128
Myers Industries, 281 NLRB 882, 1986
129
Section 18, Article II, 1987 Constitution

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No law shall be passed abridging the freedom of speech, of expression, or of the

press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.130

The right of the people, including those employed in the public and private sectors,
to form unions, associations, or societies for purposes not contrary to law shall not
be abridge.131

The State shall afford full protection to labor, labor and overseas, organized and
unorganized, and promote full employment and equality of employment
opportunities for all. It shall guarantee the rights of all workers to self-organization,
collective bargaining and negotiations, and peaceful concerted activities, including
the right to strike in accordance with law. (Section 3, Article XIII, 1987 Constitution)
Self-organization indeed is the key to a meaningful exercise of the right to
concerted activities, without which, they will never be effective nor feasible.

Labor Code
Workers shall have the right to engage in concerted activities for purposes of
collective bargaining or for their mutual benefit and protection. The right of
legitimate labor organizations to strike and picket and of employers to lockout,
consistent with the national interest, shall continue to be recognized and
respected. However, no labor union may strike and no employer may declare a
lockout on grounds involving inter-union and intra-union disputes.132

It shall be unlawful for any person to restrain, coerce, discriminate against or

unduly interfere with employees and workers in their exercise of the right to self-
organization. Such right shall include the right to form, join, or assist labor
organizations for the purpose of collective bargaining through representatives of
their own choosing and to engage in lawful concerted activities for the same
purpose for their mutual aid and protection, subject to the provisions of Article 264
of this Code133

1. Forms of concerted activities

Strike means any temporary stoppage of work by the concerted action of
employees as a result of an industrial or labor dispute.134 It cannot be
overemphasized that strike, as the most pre-eminent economic weapon of the
workers to force management to agree to an equitable sharing of the joint product
of labor and capital, exert some disquieting effects not only on the relationship

130
Section 4, Article III, 1987 Constitution
131
Section 8, Article III, 1987 Constitution
132
Article 278 (b), Labor Code
133
Article 257, Labor Code, as amended by B.P. Blg. 70, May 1, 1980
134
Article 212 (o), Labor Code

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between labor and management, but also on the general peace and progress of
society and economic well-being of the State.135 By virtue of this right, the
workers are able to press their demands for better terms and conditions of
employment with more energy and persuasiveness, poising the threat to strike
as their reaction to their employer’s intransigence.136

Forms of Strike
1) Economic strike
It is declared to demand higher wages, overtime pay, holiday pay, vacation
pay and other economic benefits. An economic strike is defined as one which
is to force wage or other concessions from the employer which he is not
required by law to grant.137

2) ULP strike
It is a strike staged to protest against the employer’s acts of unfair labor
practice enumerated in Article 259 of the Labor Code as amended, including
gross violation of the Collective Bargaining Agreement (CBA) and union-
busting

Generally, a strike based on a “non-strikeable“ ground is an illegal strike;

corollarily, a strike grounded on ULP is illegal if no such acts actually exist.
As an exception, even if no ULP acts are committed by the employer, if the
employees believe in good faith that ULP acts exist so as to constitute a valid
ground to strike, then the strike held pursuant to such belief may be legal.
As a general rule, where the union believed that the employer committed
ULP and the circumstances warranted such belief in good faith, the resulting
strike may be considered legal although, subsequently, such allegations of
unfair labor practices were found to be groundless. A mere claim of good
faith would not justify the holding of a strike under the aforesaid exception
as, in addition thereto, the circumstances must have warranted such belief.
It is therefore, not enough that the union believed that the employer
committed acts of ULP when the circumstances clearly negate even a prima
facie showing to sustain such belief. (National Union of Workers in Hotels,
Restaurants and Allied Services.138

3) Legal strike
It is a strike that is staged for a valid purpose and conducted through means
allowed by law.

135
Pilipino Telephone Corporation vs. Pilipino Telephone Employees Association [PILTEA], G.R. No.
160058, June 22, 2007
136
PASVIL/Pascal Liner, Inc., Workers Union-NAFLU vs. NLRC, G.R. No. 124823, July 28, 1999
137
Master Iron Labor Union vs. NLRC, G.R. No. 92009, February 17, 1993
138
NUWHRAIN vs. NLRC, G.R. No. 125561, March 6, 1998

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4) Illegal strike
A strike staged for a purpose not recognized by law, or if for a valid purpose,
conducted through violation of the law.

5) Slow down strike

It is staged without the workers quitting their work but by merely slackening
or by reducing their normal work output.

6) Quickie strike
It is a brief and unannounced temporary stoppage of work that is closely
related to slow down strike. It is one of the forms of illegal strikes.

7) Wildcat strike
A strike declared and staged without the approval of the majority of the
members of the recognized bargaining agent.

8) Sit down strike

It is a strike where the workers stop working but do not leave their place of
work.

9) Sympathy strike
It is a kind of work strike staged by the workers of one company to make
common cause with the strike of other companies without demands or
grievances of their own against their employer. This is an illegal strike
because there is no labor dispute between the workers who are joining the
strikes and the latter’s employer.

Strikes in Hospitals, Clinics and Medical Institutions

In line with the national concern for and the highest respect accorded to the
rights of patients to life and health, strikes and lockouts in hospitals, clinics and
similar medical institutions shall, to every extent possible, be avoided, and all
serious efforts, not only by labor and management but government as well, be
exhausted to substantially minimize, if not prevent, their adverse effects on such
life and health, through the exercise, however legitimate by labor of its right to
strike and by management to lockout.139

Strike in Government Service

The 1987 Constitution guarantees in its protection-to-labor clause, “the rights
of all workers to self-organization, collective bargaining and negotiations, and

139
Article 278 (g), Labor Code

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peaceful concerted activities, including the right to strike in accordance with

law.”

For purposes of the exercise of the rights to self-organization and to strike, the
Labor Code classifies employees in the government sector as follows:
1. Employees of government-owned and/or controlled corporation (GOCCs)
organized under the Corporation Code (without original charters) and are,
therefore, covered by the Labor Code.
2. Employees of the government and its political subdivisions or
instrumentalities, including government-owned and/or controlled
corporations (GOCCs) organized with original charters and are, therefore,
covered by the Civil Service Law, rules and regulations. They are called
civil service employees.

The government employees mentioned in No. 1 above possess and enjoy the
rights to self-organization and to strike just like any employees in the private
sector; while those referred to in No. 2 above.

Picketing is the marching to and fro at the employer’s premises, usually

accompanied by the display of placards and other signs making known the
facts involved in the labor dispute140

Picketing, if peacefully carried out, cannot be prohibited even in the absence

of employer-employee relationship between the picketers and the employer
being picketed.141

Boycott is the concerted refusal to patronize an employer’s goods or services

and to persuade others to a like refusal.142

2. Who may declare a strike or lockout?

Any certified or duly recognized bargaining representative may declare a strike
in cases of bargaining deadlocks and unfair labor practices. The employer may
declare a lockout in the same cases. In the absence of the former, any legitimate
labor organization in the establishment may declare a strike but only on grounds
of unfair labor practice.143

3. Requisites for a valid strike

The requisites for a valid strike are as follows:

140
Ilaw at Buklod ng Manggagawa [IBM] vs. NLRC, G.R. No. 91980, June 27, 1991
141
Philippine Association of Free Labor Unions [PAFLU] vs. Court of First Instance, G.R. No. L-
49580, January 17, 1983
142
Ilaw at Buklod ng Manggagawa [IBM] vs. NLRC, G.R. No. 91980, June 27, 1991
143
IRR of the Labor Code, Book V, Rule XIII, Section 2

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a) Valid ground
In order for a strike to be lawful, it must be based on lawful grounds such as
bargaining deadlock and unfair labor practice (ULP) which includes union
busting or the dismissal of the duly elected officers of the union and such
dismissal threatens the existence of the union.

b) Notice of strike
In bargaining deadlocks, a notice of strike or lockout shall be filed with the
regional branch of the Board at least thirty (30) days before the intended date
thereof, a copy of said notice having been served on the other party
concerned. In cases of unfair labor practice, the period of notice shall be
fifteen (15) days. However, in case of unfair labor practice involving the
dismissal from employment of any union officer duly elected in accordance
with the union constitution and by-laws which may constitute union busting
where the existence of the union is threatened, the fifteen-day cooling off
period shall not apply and the union may take action immediately after the
strike vote is conducted and the results thereof submitted to the appropriate
regional branch of the Board.144

A notice of strike, with the required contents, should be filed with DOLE,
specifically the Regional Branch of the NCMB, copy furnished to the
employer of the union.145

Contents of Notice
The notice shall state among others:
● Names and addresses of the employer ad the union involved
● Nature of the industry to which the employer belongs
● Number of union members and workers in the bargaining unit
● Such other relevant data as may facilitate the settlement of the dispute

In cases of bargaining deadlocks, the notice shall, as far as practicable:

● State the unresolved issues in the bargaining negotiations
accompanied by written proposals of the union, counter-proposals of
the employer and proof of a request for conference to settle the
differences.

In cases of unfair labor practice, the notice shall, as far as practicable:

● State acts complained of and the efforts taken to resolve the dispute
amicably.

144
Section 7, Rule XXII, D.O. No. 40-03
145
Capitol Medical Center, Inc. vs. NLRC, G.R. No. 147080, April 26, 2005

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In case a notice does not conform with the requirements of this and the
foregoing section/s, the regional branch of the Board shall inform the
concerned party of such fact.146

c) Observance of the cooling-off period

For a strike to be legal, observance of the cooling-off period is indispensable,
except in cases of union busting because of the extreme necessity to protect
the very existence of the union. For a strike grounded on bargaining
deadlock, the cooling-off period is thirty (30) days before the intended date
of strike. For ULP, the cooling-off period is fifteen (15) days before the
intended date of strike. The 15-to-30-day cooling-off period is designed to
afford the parties opportunity to amicably resolve the dispute with the
assistance of the NCMB conciliator/mediator, while the seven-day strike ban
is intended to give the DOLE an opportunity to verify whether the projected
strike really carries the imprimatur of the majority of the union members.147

d) Notice of the conduct of strike vote to NCMB

The requirement of giving notice of the conduct of a strike vote to the NCMB
at least 24 hours before the meeting for the said purpose is designed to: (a)
inform the NCMB of the intent of the union to conduct a strike vote; (b) give
the NCMB ample tie to decide on whether or not there is a need to supervise
the conduct of the strike vote to prevent any acts of violence and/or
irregularities attendant thereto; and (c) should the NCMB decide on its own
initiative or upon the request of an interested party including the employer,
to supervise the strike vote, to give it ample tie to prepare for the deployment
of the requisite personnel, including peace officers if need be. The failure of
a union to comply with the requirement of the giving of notice to the NCMB
at least 24 hours prior to the holding of a strike vote meeting will render the
subsequent strike staged by the union illegal.148

e) Conduct of strike vote

A strike vote must be conducted through secret ballot and report its result to
the NCMB at least seven (7) days before the intended date of strike. This is
to insure that the majority of all the members of the union agreed to stage a
strike.

A decision to declare a strike must be approved by a majority of the total

union membership in the bargaining unit concerned, obtained by secret ballot
in meetings or referenda called for that purpose.149

146
Section 8, Rule XXII, D.O. No. 40-03
147
Capitol Medical Center, Inc. v NLRC, G.R. No. 147080, April 26, 2005
148
Id.
149
Article 263(f), Labor Code

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Strike vote balloting refers to the secret balloting undertaken by the members
of the union in the bargaining unit concerned to determine whether or not to
declare a strike in meetings or referenda called for that purpose.150

Before a strike is actually commenced, a strike vote should be taken by

secret balloting, with a 24-hour prior notice to NCMB. The decision to declare
a strike requires the secret-ballot approval of the majority of the total union
membership in the bargaining unit concerned.151

f) Strike vote report

The result of the strike vote should be reported to the NCMB at least seven
(7) days before the intended strike or lockout, subject to the cooling-off
period. A strike vote report submitted to the NCMB at least seven (7) days
prior to the intended date of strike ensures that a strike vote was, indeed,
taken. In the event that the report is false, the seven-day period affords the
members an opportunity to take the appropriate remedy before it is too late
(Capitol Medical Center, Inc. v NLRC, G.R. No. 147080, April 26, 2005)

g) Strike ban or waiting period

A strike cannot be held within seven (7) days from the time the strike vote
result is reported to the NCMB. This period is known as the strike ban or the
waiting period. Failure to observe the strike ban makes the strike illegal.

Should the dispute remain unsettled after the lapse of the requisite number
of days from the filing of the notice of strike or lockout and of the results of
the election required in the preceding section, the labor union may strike or
the employer may lock out its workers. The regional branch of the Board shall
continue mediating and conciliating.152

4. Requisites for a valid lockout

Lockout means any temporary refusal of an employer to furnish work as a result
of an industrial or labor dispute.153

To be valid, a lockout should comply with the following requisites:

a) It must be based on any or both of the following two (2) exclusive grounds:
(i) unfair labor practice (ULP) of the labor organization;
(ii) collective bargaining deadlock (CBD).

150
Section 1(ww), Rule I, D.O. No. 40-03
151
Capitol Medical Center, Inc. vs. NLRC, G.R. No. 147080, April 26, 2005
152
Section 11, Rule XII, D.O. No. 40-03
153
Article 219 (p), Labor Code

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b) A notice of lockout shall be filed with the National Conciliation and Mediation
Board (NCMB).

The lockout notice shall be filed at least fifteen (15) days before the intended
date of the lockout if the issues raised are unfair labor practices, or at least
thirty (30) days before the intended date thereof if the issue involves
bargaining deadlock. However, in case of unfair labor practice involving the
dismissal from employment of any union officer duly elected in accordance
with the union constitution and by-laws which may constitute union busting
where the existence of the union is threatened, the fifteen-day cooling off
period shall not apply and the union may take action immediately after the
strike vote is conducted and the results thereof submitted to the appropriate
regional branch of the Board154;
c) A notice must be served to the NCMB-DOLE at least twenty-four (24) hours
prior to the taking of the lockout vote by secret balloting, informing said office
of the decision to conduct a lockout vote, and the date, place and time
thereof and asking it to supervise the taking of the lockout vote;
d) A lockout vote must be taken where a majority of the members of the Board
of Directors of the corporation or association or of the partners in a
partnership, obtained by secret ballot in a meeting called for the purpose,
must approve it;
e) A lockout vote report should be submitted to the NCMB-DOLE at least seven
(7) days before the intended date of the lockout;
f) Observance of the cooling-off period of fifteen (15) days, in case of ULP of
the labor organizations, or thirty (30) days, in case of bargaining deadlocks,
reckoned from the date of filing of the notice of lockout; and
g) The seven (7) day waiting period reckoned after the submission of the
lockout vote report to the NCMB-DOLE should be fully complied with in all
cases.

5. Requisites for lawful picketing

The right to peaceful picketing should be exercised by the workers with due
respect for the rights of others. Hence, commission by any act of violence,
coercion or intimidation is prohibited. Similarly, stationary picket and the use of
means like placing of objects to constitute permanent blockade or to effectively
close points of entry or exit in company premises are likewise not allowed by law.

In the event that the picketers employ discourteous and impolite language in their
picket, such may not result in, or give rise to, libel or action for damages.155

154
Section 7, Rule XXII, D.O. No. 40-03
155
Philippine Commercial and Industrial Bank vs. Philnabank Employees Association, G.R. No. L-
29630, July 2, 1981

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Mandatory requisites for strike not applicable to picketing. The procedural but
mandatory requisites that must be complied with before a valid strike may be
staged are not applicable to picketing. The only requirement to make picketing
valid and legal is that it should be peacefully conducted. This is articulated in the
provision of Article 279 (e), Labor Code which provides that, “No person engaged
in picketing shall commit any act of violence, coercion or intimidation or obstruct
the free ingress to or egress from the employer’s premises for lawful purposes,
or obstruct public thoroughfares.”

To reiterate, the requisites of lawful picketing are:

a) It should be peacefully carried out
b) There should be no act of violence, coercion, or intimidation attendant
thereto;
c) The ingress and egress should not be obstructed; and
d) Public thoroughfares should not be impeded.156

6. Assumption of jurisdiction by the DOLE Secretary or Certification of the

labor dispute to the NLRC for compulsory arbitration
When in his opinion, there exists a labor dispute causing or likely to cause a
strike or lockout in an industry indispensable to the national interest, the
Secretary of Labor and Employment may assume jurisdiction over the dispute
and decide it or certify the same to the Commission for compulsory arbitration.
Such assumption or certification shall have the effect of automatically enjoining
the intended or impending strike or lockout as specified in the assumption or
certification order. If one has already taken place at the time of assumption or
certification, all striking or locked out employees shall immediately return-to-work
and the employer shall immediately resume operations and readmit all workers
under the same terms and conditions prevailing before the strike or lockout, the
Secretary of Labor and Employment or the Commission may seek the assistance
of law enforcement agencies to ensure compliance with this provision as well as
with such orders as he may wish to enforce the same.

The foregoing notwithstanding, the President of the Philippines shall not be

precluded from determining the industries that, in his opinion, are indispensable
to the national interest, and from intervening at any time and assuming
jurisdiction over any such labor dispute in order to settle or terminate the same.157

7. Nature of assumption order or certification order

156
Section 13, Rule XXII, D.O. No. 40-03
157
Article 278(g), Labor Code

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A conference called by the Secretary of Labor on the propriety of the issuance of

the assumption order or certification order is a condition for a valid exercise of
the assumption of jurisdiction authority. Prior notice and hearing are not required
in the issuance of the assumption or certification order.

If a strike or lockout has already taken place, all striking and locked out workers
shall, within 24 hours from receipt of an Assumption or Certification Order,
immediately return to work and the employer shall immediately resume
operations and readmit all workers under the same terms and conditions
prevailing before the strike.

Within 5 days from the issuance of the assumption or certification order, a

preliminary conference or hearing shall immediately be conducted by the office
of the Secretary of Labor and Employment, the NLRC or the Voluntary Arbitrator
or Panels of Voluntary Arbitrators as the case may be. The decision of the
Secretary of Labor, the NLRC or Voluntary Arbitrator or Panels of Voluntary
Arbitrators shall be rendered within 30 calendar days from submission of the case
for resolution and shall be final and executory 10 calendar days after receipt
thereof by the parties.158

The assumption and certification orders are executory in character and must be
strictly complied with by the parties.159

8. Effect of defiance of assumption or certification orders

DEFIANCE OF CERTIFICATION ORDER

No strike or lockout shall be declared after assumption of jurisdiction by the
President or the Minister or after certification or submission of the dispute to
compulsory or voluntary arbitration or during the pendency of cases involving the
same grounds for the strike or lockout [Art. 279(a), par. 2].

Non-compliance with the assumption or certification order of the Secretary of

Labor, or a return-to-work order issued pursuant thereto by the Secretary of
Labor or by NLRC, to which a labor dispute is certified, is considered an illegal
act committed in the course of the strike or lockout.

In case of non-compliance of strikers, they may be subject to immediate

disciplinary action, including dismissal or loss of employment status and even to

158
D.O. No. 40-H-13, Rule XXII, Section 18
159
Allied Banking vs. NLRC, G.R. No. 116128 (1996)

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criminal prosecution.160 Moreover, the strike becomes illegal because of the

disregard of the return-to-work order issued by the Secretary.161

ASSUMPTION OF CERTIFICATION ORDER

An assumption or certification order of the DOLE Secretary automatically results
in a return-to-work of all striking workers, whether a corresponding return to-work
order had been issued. Failing to comply with the return-to-work order is
punishable by dismissal or loss of employment status.162

Period of defiance of the return-to-work order is not material. Defiance of less

than one (1) day is sufficient to effect termination of defiant strikers.163

9. Illegal strike
An Illegal Strike is one which:
a. Is contrary to a specific Prohibition of law, such as strike by employees
performing governmental functions
b. Violates a specific requirement of law (as to Procedure)
c. Is declared for an unlawful Purpose, such as inducing the employer to
commit an unfair labor practice against nonunion employees
d. Employs unlawful Means in the pursuit of its objective, such as widespread
terrorism of non-strikers
e. Violates an existing Injunction
f. Contrary to an existing Agreement, such as a no-strike clause or conclusive
arbitration clause.164

a) Liability of union officers

Any union officer who knowingly participates in an illegal strike and any union
officer who knowingly participates in the commission of illegal acts during a
strike may be declared to have lost his employment.165

The illegal acts during a strike are the following:

(1) Violation of Article 279(e) of the Labor Code
(2) Commission of crimes and other unlawful acts in carrying out the strike
(3) Violation of any order, prohibition, or injunction issued by the DOLE
Secretary or NLRC in connection with the assumption of
jurisdiction/certification order under Article 278(g) of the Labor Code.166

160
San Juan De Dios Educational Foundation Employees Union-Alliance of Filipino Workers vs. San
Juan De Dios Educational Foundation Inc., G.R. No. 143341, May 28, 2004
161
Union of Filipino Employees vs. Nestle PHL, G.R. No. 88710-13, December 19, 1990
162
Calamba Medical Center, Inc. vs. NLRC, G.R. No. 176484, November 25, 2008
163
University of San Agustin Employees’ Union–FTW vs. CA, G.R. No. 169632, March 28, 2006
164
Toyota Motor Phil. Workers Association vs. NLRC, G.R. No. 158789, 2007
165
Article 279[e], Labor Code
166
Id.

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Union officer may not be vicariously held liable for illegal acts of strikers. The
rule is, for an LO and/or its officer and members to be liable, there must be
proof of actual participation in, authorization or ratification of, the illegal acts.

Labor Organizations (LOs) are not liable for unauthorized or unratified acts of
its officers. Nor is it liable for the unlawful acts of its members which neither its
officer nor committees have directed, aided, or approved.

Shop stewards appointed by the Union, in a shop, department or plant serves

as representative of the Union, charged with negotiating and adjustment of
grievances of employees with the supervisor of the employer, is considered an
officer. Hence, shop stewards were similarly dismissed from employment in the
conduct of an illegal strike.167

b) Liability of ordinary workers

Any worker who knowingly participates in the commission of illegal acts during
a strike may be declared to have lost his employment status.168 The individual
strikers committing the illegal acts must be identified. Proof beyond reasonable
doubt is not required, only substantial evidence

c) Liability of employer
Any worker whose employment has been terminated as a consequence of an
unlawful lockout shall be entitled to reinstatement with full backwages. (Labor
Code, Article 279[a]) If the employer committed illegal lockout and the
employees staged illegal strike, they are both at fault. The court will restore their
respective positions before the strike. The dismissed strikers will be reinstated
without backwages.169

d) Waiver of illegality of strike

Where the ER voluntarily agrees to reinstate the strikers, such agreement on
the part of the ER constitutes a waiver of the defense that the strike was illegal.

An employer can be deemed to have waived the defense that a strike is illegal.
In the case of Bisaya Land, the Court held that: “Admitting for the sake of
argument that the strike was illegal for being premature, this defense was
waived by the [Company], when it voluntarily agreed to reinstate the radio
operators”.170

167
Santa Rosa Coca-Cola vs. Coca-Cola, G.R. 164302-03, 2007
168
Article 279(a), Labor Code
169
Automative Engine Rebuilders vs. Progresibong Unyon ng mga Manggagawa sa AER, G.R. No.
16138, 2011
170
Bisaya Land Transportation Co., Inc. vs. CIR, G.R. No. L10114 (1957)

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The ruling cited in the Bisaya case that the employer waives his defense of
illegality of the strike upon reinstatement of strikers is applicable only to strikers
who signified their intention to return to work and were accepted back.
Condonation shall apply only to strikers who signified their intention to return,
and did return to work, since these strikers took the initiative in normalizing
relations with their employer and thus helped promote industrial peace.
However, as regards the strikers who decided to pursue with the case, […] the
employer could not be deemed to have condoned their strike, because they
had not shown any willingness to normalize relations with it.171 However, the
mere act of entering into a compromise agreement cannot be deemed to be a
waiver of the illegality of the strike, unless such a waiver is clearly shown in the
agreement.172

10. Injunctions
As a general rule, no temporary or permanent injunction or restraining order in
any case involving or growing out of labor disputes shall be issued by any court
or other entity.173

The exceptions are the following:

1. To enjoin or restrain any actual or threatened commission of any or all
prohibited or unlawful acts or to require the performance of a particular act
in any labor dispute which, if not restrained or performed forthwith, may
cause grave or irreparable damage to any party or render ineffectual any
decision in favor of such party;174 and
2. When, in the opinion of Secretary of Labor and Employment, there exists a
labor dispute causing or likely to cause a strike or lockout in an industry
indispensable to the national interest, the Secretary of Labor and
Employment may assume jurisdiction over the dispute and decide it or
certify the same to the Commission for compulsory arbitration.175

The assumption of jurisdiction by the SOLE automatically enjoins intended or

impending strike or lockout [Article 278 (g)].

If strike or lockout has already taken place at the time of assumption or

certification, 1. All striking or locked out employees shall immediately return-to-
work; and 2. The employer shall immediately resume operations and readmit all

171
Philippine Inter-Fashion, Inc. vs. NLRC, G.R. No. L-59847 (1982)
172
Filcon Manufacturing Corp vs. Lakas Manggagawa sa Filcon – Lakas Manggagawa Labor Center,
G.R. No. 150166 (2004)
173
Article 266, Labor Code
174
Article 225(e), Labor Code
175
Article 278 (g), Labor Code

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workers under the same terms and conditions prevailing before the strike or
lockout [Art. 278 (g)].

The SOLE may also determine the retroactivity of arbitral awards pursuant to
power to assume jurisdiction as part of his/her plenary powers to determine the
effectivity thereof in absence of specific provision of law.176

The following are authorized to issue injunctions or restraining orders:

(1) NLRC;177
(2) President – In case of labor dispute in industries which are indispensable to
national interest;178 and
(3) Secretary – In case of labor dispute in industries which are indispensable to
national interest, the Secretary may assume jurisdiction over the dispute or
certify the same to the Commission for compulsory arbitration. Such
assumption or certification shall have the effect of automatically enjoining the
intended or impending strike. If one has already taken place, all striking or
locked out employees shall immediately return to work and the employer
shall immediately re-admit employees and resume operations.179

a) Requisites for labor injunctions

As a general rule, a strike is not subject to labor injunction. Except a preliminary
or permanent injunction may be granted by the Commission:
a. Only after hearing the testimony of witnesses and with opportunity for cross-
examination in support of the allegations of the complaint or petition made
under oath, and testimony by way of opposition thereto, if ordered, and
b. Only after a finding of fact by the Commission:
i. That the Prohibited or unlawful acts have been threatened and will be
committed and will be continued unless restrained, but no injunction or
temporary restraining order shall be issued on account of any threat,
prohibited or unlawful act, except against the person or persons,
association or organization making the threat or committing the
prohibited or unlawful act or actually authorizing or ratifying the same
after actual knowledge thereof;
ii. The petitioner has no Adequate remedy at law
iii. That substantial or irreparable Injury to petitioner’s property will follow
iv. That as to each item of Relief to be granted, greater injury will be
inflicted upon petitioner by the denial of relief than will be inflicted upon
respondents by the granting of relief; and

176
[LMG Chemicals Corp. vs. Section of Labor and Employment, 356 SCRA 577 (2001)
177
Article 225, Labor Code
178
Article 278 (g), Labor Code
179
Article 278 (g), Labor Code

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v. That the Public officers charged with the duty to protect petitioner’s
property are unable or unwilling to furnish adequate protection.180

b) “Innocent bystander rule”

In cases of strikes/picketing, third parties or innocent bystanders may secure a
court (regular court) injunction to protect their rights.181

The right to picket as a means of communicating the facts of a labor dispute is

a phase of the freedom of speech guaranteed by the constitution. If peacefully
carried out, it cannot be curtailed even in the absence of employer-employee
relationship.182 While peaceful picketing is entitled to protection as an exercise
of free speech, the right may be regulated at the instance of third parties or
"innocent bystanders" if it appears that the inevitable result of its exercise is to
create an impression that a labor dispute with which they have no connection
or interest exists between them and the picketing union or constitute an invasion
of their rights. Thus, an "innocent bystander," who seeks to enjoin a labor strike,
must satisfy the court that aside from the grounds specified in Rule 58 of the
Rules of Court, it is entirely different from, without any connection whatsoever
to, either party to the dispute and, therefore, its interests are totally foreign to
the context thereof.

D. Assumption of jurisdiction by Secretary of Labor and

Employment
Article 278(g) is both an extraordinary and a preemptive power to address an
extraordinary situation a strike or lockout in an industry indispensable to the
national interest. The secretary of Labor is empowered to:
(1) Assume jurisdiction over the dispute and decide it, or
(2) Certify the dispute to the NLRC for compulsory arbitration, in which case,
NLRC shall hear and decide.

The intent of the law is to give the Labor Secretary full authority to resolve all
matters within the dispute that gave rise to or which arose out of the strike or
lockout; it includes and extends to all questions and controversies arising from or
related to the dispute, including cases over which the labor arbiter has exclusive
jurisdiction.

The authority of the Secretary to assume jurisdiction over a labor dispute causing
or likely to cause a strike or lockout in an industry indispensable to national interest
includes and extends to all questions and controversies arising from such labor

180
NLRC Rules, Rule X, Section 2
181
PAFLU vs. Cloribel, G.R. No. L-25878, March 28, 1969
182
MSF Tire and Rubber, Inc. vs. CA, G.R. No. 128632, August 5, 1999).

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dispute. The power is plenary and discretionary in nature to enable him to

effectively and efficiently dispose of the dispute.183

As held in International Pharmaceuticals, Inc. vs. Secretary of Labor, the Labor

Secretary has jurisdiction over all questions and controversies arising from an
assumed dispute, including cases over which the labor arbiter has exclusive
jurisdiction.184

1. Industries indispensable to the national interest

The Labor Code vests upon the Secretary of Labor the discretion to determine
what industries are indispensable to national interest. Thus, upon the
determination of the Secretary of Labor that such industry is indispensable to the
national interest, it will assume jurisdiction over the labor dispute of said
industry.185

The assumption of jurisdiction is in the nature of police power measure. This is

done for the promotion of the common good considering that a prolonged strike
or lockout can be inimical to the national economy. The Secretary of Labor acts
to maintain industrial peace. Thus, his certification for compulsory arbitration is
not intended to impede the workers' right to strike but to obtain a speedy
settlement of the dispute.186

The NLRC vests the President of the Philippines and the Secretary of Labor
almost unlimited discretion to determine what industries may be considered as
indispensable to the national interest.

Industries Indispensable to the National Interest: 1. Hospital Sector 2. Electric

Power Industry3. Water Supply Services, to exclude small water supply such as
bottling and refilling stations 4. Air traffic control 5. Such other industries as
maybe recommended by the National Tripartite Peace Council (TIPC) (DO
No.40-H-13)

2. Effects of assumption of jurisdiction

The following are the effects of assumption of jurisdiction:

(1) On intended or impending strike or lockout Automatically enjoined;
(2) On actual strike or lockout (already taken place) all striking or locked-out
employees shall immediately return to work and the employer shall

183
Philcom Employees Union vs. Philippine Global Communications, G.R. No. 144315, 2006
184
G.R. Nos. 92981-83, 1992
185
Philtread Workers Union vs. Confesor, G.R. No. 117169, 1997
186
Id.

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immediately resume operations and readmit all workers under the same
terms and conditions prevailing before the strike or lockout;
(3) On cases already filed and may be filed considered subsumed or absorbed
by assumed or certified case, except where certification or assumption
order states otherwise;187
(4) On other pending cases Parties are required to inform their counsels and
the DOLE Secretary/ NLRC Division concerned of all pending cases that
are related or incident to the assumed/certified case.188

Such assumption or certification has the effect of automatically enjoining the

intended or impending strike or lockout as specified in the assumption or
certification order. If one has already taken place at the time of the assumption
or certification, all striking or locked out employees shall immediately return to
work and the employer shall immediately resume operations and readmit all
workers under the same terms and conditions prevailing before the strike or
lockout. In such case, the assumption/certification results to a return-to-work of
all striking workers even if the Secretary has not issued a Return to Work Order
(RTWO).189

Upon assumption or certification, the parties should revert to the status quo ante
litem which refers to the state of things as it was before the labor dispute or the
state affairs existing at the time of the filing of the case.190 The assumption or
certification also has the effect of regulating the management prerogative of
determining the assignment or movement of EEs. Thus, in one case, the Court
held the layoff of 94 EEs pending the resolution of the dispute illegal as it was
violative of the assumption order.191

The assumption or certification also has the effect of regulating the management
prerogative of determining the assignment or movement of EEs. Thus, in one
case, the Court held the layoff of 94 EEs pending the resolution of the dispute
illegal as it was violative of the assumption order.192

187
Guagua National Colleges vs. Guagua National Colleges Faculty Labor Union, G.R. No. 204693,
2016
188
Par 2, Section 3(b), Rule VIII, 2011 NLRC Rules of Procedure
189
Article 278 (g), Labor Code
190
Overseas Workers’ Welfare Administration vs. Chavez, G.R. No. 169802, 2007
191
Metrolab vs. Roldan-Confesor, G.R. No. 108855, 1996
192
Id.

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E. Submitted Questions with Answers

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