Labor - Manuel

7/27/2019 Labor - Manuel

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Probationary employees can join a

union and can vote in a CE Any employee, whether employed for a definite

period or not, shall beginning on the first day ofhis/her service, be eligible for membership in anylabor organization. In a certification election forthe bargaining unit of rank and file employees,all rank and file employees, whetherprobationary or permanent are entitled to vote.As long as probationary employees belong tothe defined bargaining unit, they are eligible tosupport the petition for certification election.

NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary, July 31,2009


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Confidential Employees

Confidential employees are those who (1) assistor act in a confidential capacity, (2) to personswho formulate, determine, and effectuatemanagement policies in the field of laborrelations. The two (2) criteria are cumulative,and both must be met

The exclusion from bargaining units ofemployees who, in the normal course of theirduties, become aware of management policiesrelating to labor relations is a principal objective

sought to be accomplished by the confidentialemployee rule.

Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery v. AsiaBrewery, August 3, 2010


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As regards the qualification of bank cashiers as confidential employees,National Association of Trade Unions (NATU) Republic Planters BankSupervisors Chapter v. Torres declared that they are confidentialemployees having control, custody and/or access to confidential matters,e.g., the branch's cash position, statements of financial condition, vaultcombination, cash codes for telegraphic transfers, demand drafts and othernegotiable instruments, pursuant to Sec. 1166.4 of the Central Bank Manualregarding joint custody, and therefore, disqualified from joining or assisting

a union; or joining, assisting or forming any other labor organization. Golden Farms, Inc. v. Ferrer-Calleja meanwhile stated that confidential

employees such as accounting personnel, radio and telegraph operatorswho, having access to confidential information, may become the source ofundue advantage. Said employee(s) may act as spy or spies of either partyto a collective bargaining agreement.

In Philips Industrial Development, Inc. v. National Labor RelationsCommission, the Court designated personnel staff, in which human

resources staff may be qualified, as confidential employees because by thevery nature of their functions, they assist and act in a confidential capacityto, or have access to confidential matters of, persons who exercisemanagerial functions in the field of labor relations.

Standard Chartered Bank Employees Union (SCBEU-NUBE) v. StandardChartered Bank, April 22, 2008

Confidential Employees


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Confidential EEs

Payroll Master and EEs who have accessto salary and compensation data are NOT

confidential EEs. Their position do not

involve dealing with confidential laborrelations information. (Limited only to

access to salary rates

Mere access to salary rates does notmake you a confidential EE. (Unless part

of the HR department and has access to

confidential information


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Mixture of R&F and Supervisory employees does

not negate the unions legitimacy

In Pagpalain Haulers, Inc. v. Trajano, the Court had occasion to uphold thevalidity of the 1997 Amended Omnibus Rules, although the specificprovision involved therein was only Sec. 1, Rule VI, which does not requirethat, for its creation and registration, a local or chapter submit a list of itsmembers.

Then came Tagaytay Highlands Intl. Golf Club, Inc. v. Tagaytay HighlandsEmployees Union-PGTWO in which the core issue was whether mingling

affects the legitimacy of a labor organization and its right to file a petition forcertification election. This time, given the altered legal milieu, the Courtabandoned the view in Toyota and Dunlop and reverted to itspronouncement in Lopez that while there is a prohibition against themingling of supervisory and rank-and-file employees in one labororganization, the Labor Code does not provide for the effects thereof.[1][55]Thus, the Court held that after a labor organization has been registered, itmay exercise all the rights and privileges of a legitimate labor organization.

Any mingling between supervisory and rank-and-file employees in itsmembership cannot affect its legitimacy for that is not among the groundsfor cancellation of its registration, unless such mingling was brought aboutby misrepresentation, false statement or fraud under Article 239 of theLabor Code.

Republic of the Philippines, represented by DOLE, v. Kawashima Textile, July23, 2008


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Mixture of R&F and Supervisory employees does

not negate the unions legitimacy

In San Miguel Corp. (Mandaue Packaging Products Plants) v.Mandaue Packing Products Plants-San Miguel Packaging Products-San Miguel Corp. Monthlies Rank-and-File Union-FFW, the Courtexplained that since the 1997 Amended Omnibus Rules does notrequire a local or chapter to provide a list of its members, it would beimproper for the DOLE to deny recognition to said local or chapter

on account of any question pertaining to its individual members. More to the point isAir Philippines Corporation v. Bureau of LaborRelations, which involved a petition for cancellation of unionregistration filed by the employer in 1999 against a rank-and-filelabor organization on the ground of mixed membership: the Courttherein reiterated its ruling in Tagaytay Highlands that the inclusionin a union of disqualified employees is not among the grounds forcancellation, unless such inclusion is due to misrepresentation, falsestatement or fraud under the circumstances enumerated in Sections(a) and (c) of Article 239 of the Labor Code.

Republic of the Philippines, represented by DOLE, v. KawashimaTextile, July 23, 2008


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20% requirement must be at the

time of registration

Art. 234(c) requires the list of names of all theunion members of an INDEPENDENT UNIONcomprising at least 20% of the bargaining unit.This should not be equated with the list of

workers who participated in the organizationalmeetings (par [b]).

Subsequent affidavits of retraction (withdrawal ofmembership) will not retroact to the time of the

application for registration or even way back tothe organizational meeting.

Eagle Ridge Golf and Country Club v. CA, March 18, 2010


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A trade union center

CANNOT create a chapter

A trade union center is any group of registerednational unions or federations organized for themutual aid and protection of its members; forassisting such members in collective bargaining;

or for participating in policy formulation. A trade union center has no authority to charter

directly. Under the law and the rules, thepower granted to labor organizations to directlycreate a chapter or local through chartering isgiven to a federation or national union only, notto a trade union center.

San Miguel Corporation Employees Union v. San MiguelPackaging Products Employees Union, September 12, 2007


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Charter Certificate not required to

be certified under oath The charter certificate need not be certified under oath by the local unions

secretary or treasurer and attested to by its president.

Considering that the charter certificate is prepared and issued by thenational union and not the local/chapter, it does not make sense to havethe local/chapters officers certify or attest to the due execution of suchdocument.

Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v.Charter Chemical and Coating Corp., March 16, 2011

Notes:

All the other documents must be certified. The charter certificate is the ONLY documentthat does not originate form the local chapter. Hence, the requirement that it must be under

oath by the local chapter officers should not apply.


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Mixture of R&F and Supervisory

employees does not negate the

unions legitimacy

The mixture of rank-and-file and supervisoryemployees in a union does not nullify its legal

personality as a legitimate labor organization. Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER)

v. Charter Chemical and Coating Corp., March 16, 2011

As amended by R.A. 9481, the Labor Codenow allows a R&F union and a Supervisoryunion of the same company to be part of the

same federation.


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Voluntary Recognition An employer cannot ignore the existence of a legitimate labor organization at the time of its

voluntary recognition of another union. The employer and the voluntarily recognized unioncannot, by themselves, decide whether the other union represented an appropriate bargainingunit.

The inclusion in the union of disqualified employees is not among the grounds for cancellation ofregistration, unless such inclusion is due to misrepresentation, false statement or fraud under thecircumstances enumerated in Sections (a) to (c) of Article 239 of the Labor Code. THUS, CLUP-SLECC AND ITS AFFILIATES WORKERS UNION, HAVING BEEN VALIDLY ISSUED ACERTIFICATE OF REGISTRATION, SHOULD BE CONSIDERED AS HAVING ACQUIREDJURIDICAL PERSONALITY WHICH MAY NOT BE ATTACKED COLLATERALLY. THE PROPERPROCEDURE FOR SLECC IS TO FILE A PETITION FOR CANCELLATION OF CERTIFICATEOF REGISTRATION[1][11] OF CLUP-SLECC AND ITS AFFILIATES WORKERS UNION ANDNOT TO IMMEDIATELY COMMENCE VOLUNTARY RECOGNITION PROCEEDINGS WITHSMSLEC.

The employer may voluntarily recognize the representation status of a union inunorganized establishments. (NOT ACCURATE: it is the absence of a sole bargainingrepresentative that makes an establishment unorganized. Voluntary recognition can onlyhappenwhen there is only 1 labor union and not when it is unorganized) SLECC WAS NOT ANUNORGANIZED ESTABLISHMENT WHEN IT VOLUNTARILY RECOGNIZED SMSLEC AS ITSEXCLUSIVE BARGAINING REPRESENTATIVE ON 20 JULY 2001. CLUP-SLECC AND ITS

AFFILIATES WORKERS UNION FILED A PETITION FOR CERTIFICATION ELECTION ON 27FEBRUARY 2001 AND THIS PETITION REMAINED PENDING AS OF 20 JULY 2001. THUS,SLECCS VOLUNTARY RECOGNITION OF SMSLEC ON 20 JULY 2001, THE SUBSEQUENTNEGOTIATIONS AND RESULTING REGISTRATION OF A CBA EXECUTED BY SLECC ANDSMSLEC ARE VOID AND CANNOT BAR CLUP-SLECCWAS PRESENT PETITION FORCERTIFICATION ELECTION.

Sta. Lucia East Commercial Corporation v. Hon. Secretary Of Labor, August 14, 2009


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Certificate of Non-Forum Shopping

NOT required

in Petition for Certification Election

There is no requirement for a certificate of non-forum shopping inthe Labor Code or in the rules.

A certification proceeding, even though initiated by a petition, isnot a litigation but an investigation of a non-adversarial and fact-finding character. Such proceedings are not predicated upon anallegation of misconduct requiring relief, but, rather, are merely of aninquisitorial nature.

SAMMA-LIKHA v. SAMMA Corporation, March 13, 2009 Manuel: CE is an investigation and non adversarial. It is fact finding in character. Hence,

the rules applicable to ordinary cases should not apply. It is not litigation but inquisitorial.


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Petition for Certification Election The Secretary of Labor and Employment dismissed the first petition as it

was filed outside the 60-day freedom period. Subsequently, anotherpetition for CE was filed, this time within the freedom period. Is this laterPetition barred?

At that time therefore, the union has no cause of action since they are notyet legally allowed to challenge openly and formally the status of SMCGC-SUPER as the exclusive bargaining representative of the bargaining unit.

Such dismissal, however, has no bearing in the instant case since the thirdpetition for certification election was filed well within the 60-day freedomperiod. Otherwise stated, there is no identity of causes of action to speak ofsince in the first petition, the union has no cause of action while in the third,a cause of action already exists for the union as they are now legallyallowed to challenge the status of SMCGC-SUPER as exclusive bargainingrepresentative.

Chris Garments Corporation v. Hon. Patricia A. Sto. Tomas and ChrisGarments Workers Union-PTGWO, January 12, 2009

Manuel: First dismissal was merely a logical procedural action because the action wasfiled prematurely. Hence, the 2ndaction may be entertained.


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Unions legal personality not

subject to collateral attack The legal personality of petitioner union cannot be collaterally attacked in

the certification election proceedings. A separate action for cancellation ofthe unions registration/legal personality must be filed.

Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v.Charter Chemical and Coating Corp., March 16, 2011

As amended by R.A. 9481, the Labor Code now provides that, incertification election cases, the employer shall not be considered aparty with a concomitant right to oppose a petition for certificationelection.

Manuel: There is only 1 exception to the rule that you cannot raise the issue of legitimacy:When the petition or union is NOT listed in the roster of legitimate unions. In such case,you can file a petition for cancellation for the unions registration


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Employer as Bystander

Except when it is requested to bargain collectively, an employer is a merebystander to any petition for certification election; such proceeding is non-adversarial and merely investigative, for the purpose thereof is to determinewhich organization will represent the employees in their collectivebargaining with the employer. The choice of their representative is theexclusive concern of the employees; the employer cannot have any partisan

interest therein; it cannot interfere with, much less oppose, the process byfiling a motion to dismiss or an appeal from it; not even a mere allegationthat some employees participating in a petition for certification election areactually managerial employees will lend an employer legal personality toblock the certification election. The employer's only right in the proceedingis to be notified or informed thereof.

Republic of the Philippines, represented by DOLE, v. KawashimaTextile, July 23, 2008

Manuel: The ER cannot be considered a party in a petition for CE. He cannot file apleading. See exception


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Unions legal personality not

subject to collateral attack The legal personality of petitioner union cannot

be collaterally attacked in the certificationelection proceedings. A separate action forcancellation of the unions registration/legalpersonality must be filed.

Legend International Resorts v. Kilusang Manggagawa ngLegend, February 23, 2011


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Whoever alleges fraud/

misrepresentation

has burden of proof The charge that a labor organization committed fraud and

misrepresentation in securing its registration is a serious charge thatshould be clearly established by evidence and the surroundingcircumstances.

The petitioner (the party that filed the Petition for Cancellation) hasthe burden of proof.

Yokohama Tire Phils. v. Yokohama Employees Union, March10, 2010; Heritage Hotel Manila v. PIGLAS-Heritage, October 30,2009


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Signing of Petition for CE not

disloyalty

The mere signing of the authorization in support of a Petitionfor Certification Election before the freedom period, is not

sufficient ground to terminate the employment of union

members under the Union Security Clause respondents

inasmuch as the petition itself was actually filed during thefreedom period. PICOP Resources, Inc. v. Taeca, August

9, 2010

Manuel: Any termination by reason of this is considered illegal


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Certification Election

VALIDITY Majority of eligible voters voted WINNER Majority of valid votes RUN-OFF ELECTION

3 or more choices No winner Union votes amount to at least 50% of total votes


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Employers insistence to exclude a

particular provision in the

negotiations NOT refusal to bargain The duty to bargain does not include the

obligation to reach an agreement. While the lawmakes it an obligation for the employer and the

employees to bargain collectively with eachother, such compulsion does not include thecommitment to precipitately accept or agree tothe proposals of the other. All it contemplates isthat both parties should approach the

negotiation with an open mind and makereasonable effort to reach an agreement.

Union of Filipro Employees v. Nestle Phils., March 3,2008


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5-year term

While the parties may agree to extend the CBAs original five-year termtogether with all other CBA provisions, any such amendment or term inexcess of five years will not carry with it a change in the unions exclusivecollective bargaining status. By express provision of the above-quoted

Article 253-A, the exclusive bargaining status cannot go beyond five yearsand the representation status is a legal matter not for the workplace partiesto agree upon. In other words, despite an agreement for a CBA with a lifeof more than five years, either as an original provision or by amendment,the bargaining unions exclusive bargaining status is effective only for fiveyears and can be challenged within sixty (60) days prior to the expiration ofthe CBAs first five years.

FVC Labor Union-Philippine Transport and General WorkersOrganization (FVCLU-PTGWO) v. Sama-Samang NagkakaisangManggagawa Sa FVC-Solidarity Of Independent And General Labor

Organizations (SANAMA-FVC-SIGLO), November 27, 2009

Manuel: Representation aspect is for 5 years. Contract may go one beyond 5.


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Bargaining Unit

The test of grouping is community ormutuality of interest

There should be only 1 bargaining unit forEes involved in dressed chickenprocessing and workers engaged in live

chicken operations

Although they seem separate and distinct,the tasks of each are interrelated.


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ULP

In Silva v. National Labor Relations Commission, we explained thecorrelations of Article 248 (1) and Article 261 of the Labor Code tomean that for a ULP case to be cognizable by the Labor Arbiter, andfor the NLRC to exercise appellate jurisdiction thereon, theallegations in the complaint must showprima facie the concurrenceof two things, namely: (1) gross violation of the CBA; and (2) theviolation pertains to the economic provisions of the CBA.

This pronouncement in Silva, however, should not be construed toapply to violations of the CBA which can be considered as grossviolationsper se, such as utter disregard of the very existence of theCBA itself, similar to what happened in this case. When an employerproceeds to negotiate with a splinter union despite the existence ofits valid CBA with the duly certified and exclusive bargaining agent,the former indubitably abandons its recognition of the latter and

terminates the entire CBA. (Employees Union of Bayer v. Bayer Phils., December 6, 2010)


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Bonus in the CBA

Generally, a bonus is not a demandable and enforceableobligation. For a bonus to be enforceable, it must havebeen promised by the employer and expressly agreedupon by the parties. Given that the bonus in this case isintegrated in the CBA, the same partakes the nature of a

demandable obligation. Verily, by virtue of itsincorporation in the CBA, the Christmas bonus due torespondent Association has become more than just anact of generosity on the part of the petitioner but acontractual obligation it has undertaken.

Lepanto Ceramics v. Lepanto Ceramics EmployeesAssociation, March 2, 2010


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Grievance

Petitioners clearly and consistently questioned the legality ofRGMIs adoption of the new salary scheme (i.e., piece-ratebasis), asserting that such action, among others, violated theexisting CBA. Indeed, the controversy was not a simple case ofillegal dismissal but a labor dispute involving the manner ofascertaining employees salaries, a matter which was governedby the existing CBA.

Article 217(c) of the Labor Code requires labor arbiters to refercases involving the implementation of CBAs to the grievancemachinery provided therein and to voluntary arbitration.

Moreover, Article 260 of the Labor Code clarifies that suchdisputes must be referred first to the grievance machinery and, ifunresolved within seven days, they shall automatically be

referred to voluntary arbitration.

Santuyo v. Remerco Garments, March 22, 2010


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Grievance

Individual employees cannot raise a grievance. Only disputes involving the union and the

companyshall be referred to the grievance

machinery or voluntary arbitrators.

A FEDERATION cannot raise a grievance onbehalf of members of its local/chapter.

Insular Hotel Employees Union v. Waterfront Insular Hotel,September 22, 2010


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Arbitral Award While an arbitral award cannot per se be categorized as an

agreement voluntarily entered into by the parties because it requiresthe intervention and imposing power of the State thru the Secretaryof Labor when he assumes jurisdiction, the arbitral award can beconsidered an approximation of a collective bargainingagreement which would otherwise have been entered into by theparties, hence, it has the force and effect of a valid contractobligation.

That the arbitral award was higher than that which was purportedlyagreed upon in the MOA is of no moment. For the Secretary, inresolving the CBA deadlock, is not limited to considering the MOAas basis in computing the wage increases. He could, as he did,consider the financial documents submitted by respondent as wellas the parties bargaining history and respondents financialoutlook and improvements as stated in its website.

It bears noting that since the filing and submission of the MOAdid not have the effect of divesting the Secretary of hisjurisdiction, or of automatically disposing the controversy, thenneither should the provisions of the MOA restrict theSecretarys leeway in deciding the matters before him.

Cirtek Employees Labor Union v. Cirtek Electronics, November 15,2010


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Arbitral Award

The duty of the parties to keep the status quo and to continuein full force and effect the existing CBA applies not only to a

CBA voluntarily entered but also to a CBA imposed by the

SEC of Labor

The law does not provide for any exception nor qualificationon which economic provisions of the existing agreement are

to retain its force and effect. The law does not distinguish.

(2011 case)


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Labor - Manuel

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