2.

The union is requesting for its

RIGHT TO SELF ORGANIZATION enforcement of the USC in the CBA
3. There is sufficient evidence to support
Labor Worker’s Labor union’s decision to expel the employee
Organization Association Management from the union
Council
elected by the Note: Must still comply with the due process
majority of the
requirement and the company must conduct its
workers – to
exercise the
own investigation and hearing.
right to Also, good faith on the part of the employer can
participate in be a defense in case of USC
the policy and
decision- Exception to the application of USC:
making 1. Already members of another union –
processes of may not be com
the 2. Already in service at the time the union
establishment security clause took effect
a. USC cannot be given a retroactive
effect as to preclude e being
Who may unionize for purposes of applied to employees already in
collectively bargain? service [Guijarno v. CIR]
1. All employees 3. Any employee who at the time the USC
2. GOCC employees created under the took effect is member of religious
Corporation Code organization
3. Supervisory Employees 4. Confidential employees who are
4. Aliens with valid working permits excluded from the rank-and-file BU
5. Security personnel (before not allowed) 5. Employees excluded from the union
a. P-Noy issued EO 111 allowing them security provisions by express terms of the
agreement
Who CANNOT form, join or assist Labor
Organizations? Certification Election
1. Managerial Employees Who may file?
2. Confidential employees 1. Legitimate labor organization
3. Non-employees 2. Local/Chapter that has been issued a
4. Member-employee of a cooperative charter certificate
5. Employees of international Org 3. National Union or federation in behalf of
6. High-level government employees its local chapter (has issued a charter
7. Members of the AFP, police officers, certificate to its local/chapter)
placement, firemen, and jail guards (BJMP) 4. Employer when requested to bargain and
no CBA
Union Security Clause: Art. 259 (e)
Types of Union Security Clauses (USC) Filing of SEBA
1. Closed Shop UNORGANIZED ESTABLISHMENT: Where there is
2. Maintenance of membership shop no certified bargaining agent
3. Modified Union shop 1. Petition filing
4. Agency Shop 2. Automatically conduct a CE
 Closed shop: Needs to be a member to ORGANIZED ESTABLISHMENT:
be hired Where there exist or recognized CB agent
 Maintenance: If you join, you must 1. File a verified petition questioning the
remain to be continually employed majority
 Modified Union Shop: Current 2. Must be filed within the 60 day period
employees need not join but new before the expiration of the CBA
employees need to join (Freedom period)
 Agency Shop: Non members need not to 3. Substantial support: Written consent of
join but must pay agency fees that are 25% of ALL employees in the bargaining
same as union dues unit
4. Med-Arbiter shall automatically order an
Requisites for the enforcement of Union election
Security Clauses:
1. USC is applicable
GROUNDS to DISMISS PCE: 2. It is not bad faith not reaching an
1. Petitioning union or national union is: agreement, they do not compel one
a. Not listed in DOLE’s registry of (Tabangao Shell Refinery v. Pilipinas Shell
legitimate labor unions 3. No need to reach into an agreement
b. Registration certificate has been (Union of Filpro Employees v. Nestle)
cancelled with finality
2. Failure of a local/chapter or national WHEN NO CBA:
union to submit a duly issued charter In the absence of an agreement or other
certificate upon filing of the petition for voluntary agreement providing collective
certification election bargaining, it shall be the duty of employer and
3. Contract Bar Rule the representatives of the employer and the
4. One-Year Bar Rule representatives of the employees to bargain
5. Negotiation and Deadlock Bar Rule collectively in accord with the provisions of this
6. In an organized, failure to get 25% Code.
support
7. Non-appearance of the petitioner for 2 WHEN THERE IS A CBA:
consecutive scheduled conferences  POSSIBLE PROVISIONS
before the mediator-arbiter despite due o Grievance Machinery
notice o Voluntary Arbitration
8. Absence of EE-ER relationship between o “No strike, No lockout”
the unit and the establishment where o Union shop Agreement
the proposed bargaining unit is sought
to be represented Can be subject to Arbitration:
1. Interpretation and Implementation of CBA
 Not a ground: Co-mingling 2. Enforcement of company policy
3. Violations of CBA provision which are NOT
BARS TO CERTIFICATION ELECTION GROSS in character
1. One year bar rule (from valid election o Gross means flagrant/malicious
regardless of there is a winner) refusal to comply with the
2. Negotiation bar rule (start of economic provision
negotiation) 4. All other labor disputes including ULP and
3. Deadlock bar rule (filed deadlock/strike) bargaining deadlock, if the parties agree
4. Contract bar rule (lapse of freedom 5. Wage distortions arising from application
period) of any wage orders in organized
establishments.
 Union Dues – used to pay union’s 6. Unresolved grievances arising frm the
obligations. Collection must be regular and interpretation and implementation for the
periodic (it’s like membership fees) productivity incentives program under RA
 Agency Fees – an amount equivalent to 6971
union dues, which non-union member pays to
the union because of the CBA benefits Confidentiality of the registered CBA:
Generally, CBA is not confidential
COLLECTIVE BARGAINING Exceptions
1. Confidentiality authorized by SOLE
Jurisdictional Preconditions of Duty to 2. When it is at issue in any judicial litigation
Bargain: 3. Public interest or national security
[Art. 250(a)]
(1) Possession of the status of majority CBA Effectivity:
representation of the employees’ 1. If first ever CBA:
representation of the employees’ the effectivity date is whatever date the parties
representation accordance with any agree on.
means of selection or designation 2. If renegotiated CBA:
provided by the Labor Code o If it concluded within 6 months
(2) Proof of majority representation; and from date of expiry – new CBA will
(3) A demand to bargain under Art. 2521 par. retroact to the date ff the expiry
(a) of the new labor code date
o If concluded beyond 6 months from
Duty to Bargain DOES NOT include: date of expiry, the matter of
1. Legal duty to initiate (Kiok Loy v. NLRC) retroaction and effectivity is left
with the parties
CBA Duration
  3 years: Economic Provisions o Subject to the retroactivity effect
o Hold over doctrine is applicable  5 years: Representation aspect
Authorized Just Causes o Application of the contract bar rule
Causes
Initiated or caused Caused by the employee STRIKES REQUISITES:
by the employer 1. Effort to bargain
Causes (298) Causes (Art. 297) 2. Filing and service of the notice of strike
3. Observance of cooling-off period
1. Retrenchment 1. Serious Misconduct or
a. Bargain Deadlock: 30days
2. Installation of willful disobedience
b. ULP but not union busting: 15 days
Labor Saving by the employee of
c. Union busting + ULP: No Cool off
Device the lawful orders of
4. Strike Vote
his employer or
3. Redundancy 5. Strike Vote Report
representative in
4. Closure of 6. Observance of the waiting period
connection with his
Business work;
Note: The strike should observe valid
5. Disease 2. Gross and habitual purpose/cause, procedure and means. (because
neglect by the it’s just a statutory right)
employee of his
duties; Freedom 60 days before the 5 year
3. Fraud or willful breach Period period from the execution of
by the employee of the CBA
the trust reposed in Period that another bargaining
him by his employer agent can file a PCE
or duly authorized Notice Not later than 3 years from the
representative Period execution of the CBA
4. Commission of a Renegotiation period; when
crime or offense the renegotiation is concluded
against the person or 6 months before
immediate member Waiting Strike vote period
or his family or his Period
duly authorized Cooling Off At least 30 days strike/lockout
representative; and Period ban for Economic
5. Other causes Strike/Deadlock or
analogous to the At least 15 days strike/lockout
foregoing ban for ULP
after filing the notice of strike
Procedural Procedural Requirement:
No cooling of period for union
Requirement 1. Notice of Charges busting
1. 30 days notice 2. Opportunity to be
to DOLE heard
2. 30 days notice 3. Notice of Termination
to employees
affected (must
be personal TERMINATION OF EMPLOYMENT
notice)
Amount of Nominal Amount of Nominal
Damage in case Damage in case
procedural due procedural due process JUST CAUSES FOR TERMINATION ELEMENTS
process is violated is violated
Generally, Generally, Php30,000 Serious Misconduct
Php50,000 (Agabon) For willful disobedience to be a valid cause for
(Jakafood) dismissal, these two elements must concur:
Except in cases of Does not require to pay (1) the employee’s assailed conduct must
closure of business separation pay have been willful, that is, characterized by
due to serious a wrongful and perverse attitude; and
business losses, (2) the order violated must have been
separation pay 1 reasonable, lawful, made known to the
month pay or ½ employee, and must pertain to the duties
month pay
whichever is higher
 which he had been engaged to discharge. 4. Order must violated must be
[Salas v. Aboitiz] reasonable,lawful and made known to the
employee [Mirant PH v. Sario]
Elements 5. The order must pertain to the duties which
1. There must be misconduct he has been engaged to discharge
2. Misconduct must be of such grave & [Sec.5.2. (b), DO 147-15)]
aggravated character
3. It must relate to the performance of the Commission of a crime
employees’s duties 1. There must be act or omission similar to
4. There must be showing that the those specified just causes; and
employee becomes unfit to continue 2. The act or omission must be voluntary
working for the employer [Sec.5.2. (a ), and/or willful om the part of the
DO 147-15] employees

Gross and Habitual Neglect of Duties Analogous causes

Elements 1. There must be act or omission similar to
1. Neglect of duty those specified just causes;
2. Must be gross and habitual in character 2. The act or omission must be voluntary
and/or willful on the part of the employees
Loss of Trust and Confidence
1. Employee imbued with a position trust and Case Validity Liability
confidence J/A Cause (Subtantive) Valid None
a. Managerial employees + Sep. pay when
b. Employees with fiduciary capacity. Procedural Due Process authorized
cause
2. There must be an act that would justify
J/A Cause (Subtantive) Valid Nominal
loss of trust and confidence based on a
+ Damages
willful breach of trust founded on clearly No Procedural Due
established facts. Process
a. The basis must be established No J/A Cause Invalid Reinstatement
clearly and convincingly but proof (Subtantive) + or Sep pay AND
beyond reasonable doubt is not No Substantive Due full backwages
necessary. (substantial evidence) Process
b. The act must be work-related and No J/A Cause Invalid Reinstatement
show that the employee concerned (Subtantive) + or Sep pay AND
is unfit to continue working for the Procedural Due Process full backwages
employer. [Prudential Guarantee v.
NLRC] Authorized Causes
Elements: PROCEDURAL
1. There must be an act, omission, or  Written notice 30 days before effectivity of
concealment the termination specifying the ground
2. The act, omission or concealment o To the Employee and DOLE
justifies the loss of trust and confidence  Notice to employee must be
of the employer to the employee; PERSONAL not merely
3. The employee concerned and must be posting
holding a position of trust and SUBSTANTIVE
confidence; Redundancy Elements
4. The loss of trust and confidence should 1. There must be superfluous positions or
not be simulated; services of employees;
5. It should not be used as a subterfuge for 2. The positions or services are in excess of
causes which are improper, illegal, or what is reasonably demanded by the actual
unqualified; and requirements of the enterprise to operate
6. It must be genuine and not a mere in an economical and efficient manner;
afterthought to justify 3. There must be good faith in abolishing
redundant positions
Willful Disobedience 2. There must be fair and reasonable criteria
Elements: in selecting the employees to be
2. There must be disobedience or terminated; and
insubordination (D/I) 3. There must be an adequate proof of
3. The D/I must be willful or intentional redundancy such as but not limited to the
characterized by a wrongful and perverse new staffing pattern, feasibility
attitude; studies/proposals, on the viability of the
newly created positions, job description and
 the approval by the management of the months even with proper medical
restructuring treatment

Labor Saving Devices Elements a certification to that effect must beissued by a

1. Introduction of machinery , equipment or competent public health authority. The burden falls
other devices upon the employer to establish these requisites, and in
the absence of such certification, the dismissal must
2. The purpose for such introduction must be necessarily be declared illegal. [Crayons v. Pula]
valid such as to save on cost, enhance
efficiency and other justifiable economic Retrenchment Redundanc Closure
reasons y
3. There is no other option available to the Needs to have one month prior notice; if not
employer than introduction of machinery, followed, need to pay P50K nominal damages
equipment, or device and the consequent [Jakafood case] except when business losses is
termination of employee of those affected serious business losses [Industrial timber]
thereby Reduction of Service of Complete
4. There must be fair & reasonable criteria in personnel due the cessation of
selecting employees to be terminated. to poor employee is business
financial excess or
returns superfluous
Retrenchment or Downsizing Resorted (but Save Bona fide reason;
1. The retrenchment must be reasonably must be last production i.e.:
necessary and likely to prevent business resort) to avoid costs Loss of permit to
losses; or minimize operate [Manila
Mining case]
2. The losses, if already incurred , are not losses
merely de minimis, but substantial, serious, Transfering of the
business to another
actual and real, or if only expected, are company [PNCC case]
reasonably imminent;
3. The expected or actual losses must be Preventing financial
drain of the employer
proved by sufficient and convincing
evidence; Entitled of separation pay: 1 Same unless
4. The retrenchment must be in good faith for month pay or ½ month pay for serious business
the advancement of its interest and not to every year of service w/cever is losses then the
defeat advancement of its interest and not higher employer need
to defeat or circumvent the employees’ not pay SP
right to security of tenure; and
5. There must be fair and reasonable criteria in Valid Dismissals Outside Just & Authorized
ascertaining who would be dismissed and 1. Union Security Clause
who would be retained among the 2. Union Officers on Illegal Strikes
employees, such as status, efficiency, 3. Union members committing illegal acts
seniority, physical fitness, age and financial 4. Bona fide Standards
hardship for certain workers. 5. Defiance of SOLE Order
6. Grounds provided in the CBA (Sec. 7 DO
Closure or Cessation of Operation 147-15)
 There must be a decision to close or cease
operation of the enterprise by the Separation pay may be awarded, despite
management; lawful dismissal, provided that the
 The decision was made in good faith; and dismissal does not fall under either of two
 There is no other option available to the circumstances:
employer except to close or cease 1. there was serious misconduct, or
operations 2. the dismissal reflected on the employee’s
moral character.
Disease
1. The employee must be suffering from any In other words, an employee dismissed for a just
disease; cause may still be awarded separation pay as a
2. The continued employment of the measure of social justice. However, it is not given
employee is prohibited by law or when the employee has been validly dismissed
prejudicial to his/her health as well as to for serious misconduct, or for causes that reflect
the health of his/her co-employees; and on moral character or personal integrity.
3. There must be certification by a
SUSPENSIONS
competent public authority that the
Preventive As a Penalty
disease is incurable within a period of 6 Suspension
It is merely a measure which were not considered in the
of precaution so that the penalty which may course of inspection (then the case
the employee who is only be meted upon him will be with LA)
charged may be at the termination of the  NOTE: This power is often exercised
separated, for obvious investigation or the final
reasons, from the
through RD (see RD cases)
disposition of the case.  There is no ceiling for the amount
scene of his alleged
misfeasance while the in this case.
same is being 3. Jurisdiction over work stoppage orders when
investigated. non-compliance with the law or IRRs poses grave
& imminent danger to health & safety or workers
While investigation in the workplace
can be imposed on the
 Within 24 hours: Hearing to decide if
employeee
suspension order should be lifted
Maximum is 30 days Can last longer 6 months  If violation is ER’s fault: ER will pay
After such day – must wages during stoppage period
be reinstated or be 4. Jurisdiction of SOLE for strikes or lockouts that
paid involve national interest cases (SOLE may
assume jurisdiction or certify) – regardless of
Must not last longer decision, CA
than 6 months 5. Appeals from BLR decisions, where BLR
because it will become
exercises original jurisdiction
constructive dismissal
Requires Due Process:
6. Jurisdiction over inter-union disputes
Substantive: of just originating from the Med-Arbiter
cause supported by
substantial evidence
Procedural: Appeal Bond Doctrines
 the employer must DOCTRINE (McBurnie v. Ganzon)
furnish the employee 1. The bond may be reduced upon motion by
with a written notice the employer, this is subject to the
containing the cause conditions: a) the motion to reduce the
for termination.
bond shall be based on meritorious
 employer must give
grounds and b) a reasonable amount in
the employee an
opportunity to be relation to the monetary award is posted
heard. This could be by the appellant, otherwise the filing of
done either through a the motion to reduce bond shall not stop
position paper or the running of the period to perfect an
through a clarificatory appeal.
hearing. The 2. If the NLRC does eventually grant the
employee may also motion for reduction after the
be assisted by a reglementary period has elapsed, the
representative or
correct relief would be to reduce the cash
counsel.
or surety bond already posted by the
 employer must give
another written employer within the 10-day period.
notice apprising the 3. The rule that the filing of a motion to
employee of its reduce bond shall not stop the running of
findings and the the period to perfect an appeal is not
penalty to be absolute. The Court may relax the rule
imposed against the under exceptional circumstances.
employee, if any
1. Rules only allow the filing of a motion to reduce
bond on two (2) conditions:
(1) that there is meritorious ground and
SOLE JURISDICTION (2) a bond in a reasonable amount is posted.
1. Art. 128 (a) – Jurisdiction over inspections &
investigations (can also be exercised by the RD) Huge amount of bond is a ground for reduction of
2. Art. 128 (b) – Compliance orders for labor bond because no insurance company would be
standards, where EER still exists willing to issue a bond for such big money
 EXC: If ER contests the findings of
the labor employment &
enforcement officer & raises issues
supported by documentary proofs