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Constitutional Basis: Labor Law 2 Integration Notes Basic Propositions
Constitutional Basis: Labor Law 2 Integration Notes Basic Propositions
A241, A222 and A113 Election – ER should give voter’s list if not records of SSS is a valid
A241 par. m, n, p are the most difficult part alternative
*distinguish between extraordinary fees in A241 and atty’s fees in A222
Last par. of A241 – don’t bother because there’s A226: any inter/intra
A222 speaks of atty’s fees re disputes union is governed by the jurisdiction of BLR and A226
A241 speaks of special assessments and extraordinary expenses; this
can be processed thru check off Union Affiliation and Disaffiliation
How to pass: Right of union to affiliate and disaffiliate
- a meeting called for that purpose Right of worker to join, not to join and to disaffiliate
- required quorum: all members --- part of the right to SO
- records req’ts and attestation clause Jurisprudential rules:
[1] Right to affiliate includes the right to disaffiliate, right to join
2 Rules: [1] No shortcut is allowed by law; there must be total absolute includes the right not to join
compliance (ABS-CBN case), [2] Authority must be in writing
[2] Union has a right to disaffiliate, but it must comply with the [a] composition: all or less than all EEs of a particular ER
procedure to disaffiliate if such procedure is provided and at the same [b] ER equity musrt also be considered (administration of CBA)
time valid. [c] group EEs with a commom interest (with respect to wages, hrs of
[3] An affiliate is not a creation of a national federation. One is work and othr terms and conditions)
independent of the other Reason for the grouping: To best assure workers’ right to CB & SO
[4] Both may enter in a CBA or other contracts, and in case of
disaffiliation the local union will own the contract because nat’l UP v Calleja – there’s no test or guide provided by LC except the word
federation is only an agent. “appropriate.” But since 1956, SC has consistently applied the
commonality or mutuality of interest test.
*Adamson, Atlas and De La Salle cases are no longer applicable: The
amendment of the law provides that both rank and file EEs union and - Freedom to agree between EE and ER to determine ABU. If not, then
supervisors union of the same ER may now affiliate with the same nat’l through BLR and NCMB.
federation
Gen. Rule: Dayotogan and Interphil – Corporate fiction, treated as
Union Security distinct corporations even if there’s common ownership.
A249 – basis Exception: Philippine Scouts Veterans case – If there’s pervasive
Union security provisions are valid commonality, piercing the corporate veil is justified.
Jurisprudence: Union security provisions do not violate the freedom to
associate *A prior agreement on the composition of a bargaining unit is not
a. closed shop binding. Appropriateness of bargaining unit composition may change.
b. union shop
c. maintenance of membership UNION MAJORITY STATUS
- Union of their own choosing – majority of workers in ABU – negotiate
3 basic concepts with ER
a. What is the access to the labor market? - Before a union can negotiate a CBA with ER:
b. What is the condition for continuing employment? [a] union must be legit LO
c. When is employment lost? [b] it must represent majority of EEs in the ABU
[c] there must be ER-EE relationship; absent ER-EE rel, there’s no duty
Rules: to bargain
[1] if there is termination, ER must comply with the procedural die
process. The union’s offer to exempt ER from liability will not lie if ER Mechanism: [A]*Do I want a union? *if Yes, which one?
does not comply with due process [B ] I do not want a union
[2] Union security provisions applicable to present and future EEs, but
not to members of other unions. Rules: (see A246 and A257)
[1] CE is only an inquisitory proceeding, not adversarial
*Note amendments: A234-A, A239, and A242-A [2] There can be no direct certification, because CE is a statutory policy
APPROPRIATE BARGAINING UNIT that cannot be circumvented
A255 and A256 [3] The law is partial to CE because it’s the most democratic and most
Key: definition of Rothenberg, used by Justice Narvasa in UP v Calleja: efficient way of settling majority status
2 ways to determine majority status (prior to voluntary recognition) Colgate-Palmolive case and Samahan ng mga Manggagawa case –
- Certification Election (CE) There is no direct certification. Neither can ER voluntarily recognize the
- Consent election union because in effect it is a direct certification. In Colgate, the act of
*Voluntary recognition (VR) came in by IRR the Labor Sec. certifying without conducting CE violated A256. In
Samahan, ER’s voluntarily recognizing the union is invalid because in
Law Prior to VR effect it’s direct certification.
- There was no direct certification. Law is partial to CE
- A256 (organized establishment, A257 (unorganized), A258 (ER Law After VR
initiated) DOLE implemented VT in IRR but provided safeguards:
a. there’s only 1 union in the establishment
Warren case – introduced consent election, but with a limited purpose: b. the union is a LLO
to determine majority status only to administer already existing CBA. c. fact of VR is reported to DOLE and advertised
Consent election is bar to CE.
In sum,
A256 – Structure - Today Colgate and Samahan cases are still valid
[a] There’s existing CBA or no existing CBA but there is a union - A256 and A257 are still valid and not deemed repealed by the IRR
recognized. - Voluntary Recognition (VR) has not yet been challenged in court
[b] Petition for CE in relation to A253-A, filed only within freedom
period. Mechanics of A256:
[c] Petition for CE must be accompanied by substantial support. *There’s a support but only DOLE can question the veracity of such; no
Jurisprudence: [1] Petition filed within freedom period and not other parties can
before or after expiration. *A256 and A257 are union-initiated elections (see A212 on Legit status
[2] Substantial support rule need not be shown at the time of filing of petitioner, and also A234-A)
the petition, but within a reasonable time thereafter before CE *A258 is ER initiated
[3] Withdrawal of signatures has no effect, CE continues
A257 – no existing certified bargaining agent Mecganics of CE:
A258 – ER requested to bargain & ER doubts majority status *CE must be validly held, because if not the question of run-off does not
arise
Q: When is CE automatic? *Majority of the workers cast their votes
[a] In A256, it is automatic if it is filed within freedom period and *For a union to win it must garner the majority of the valid votes cast.
there’s substantial support
[b] In A257, election is automatic if a union files a petition for CE Run-off election: Requisites:
- CE was validly conducted
Q: When is CE discretionary? - There were 3 or more choices
A: CE is discretionary under A256 if even absent substantial support, - Not one of the choices had majority of the valid votes cast
CE will achieve the purpose of the law, which is CB - The combined votes of all the unions = 50% of votes cast
A263 – Allowed strikes: [a] ULP, [b] collective bargaining. All others Injunction in EO 180 is different from injunction in LC
are illegal
A264 – Prohibited strikes: [a] inter/intra union disputes, [b] strikes ARBITRATION
against industries indispensable to national interest 2 kinds: [a] voluntary, [b] compulsory
Voluntary arbitration
San Miguel case – A strike includes a “slow down” or a strike in It is initiated by agreement of the parties
installments. Jurisdiction by voluntary arbitrator: any and all disputes (A260 and
A217)
Procedure for Strike
- File notice of intent Compulsory arbitration
- Strike vote to make sure there’s no minority strikes Only labor dispute in an industry indispensable to national interest
- Reporting (to determine liability) Only labor secretary and President arbitrates
- Observance of cooling off period NLRC cannot arbitrate unless there’s conferment
- 7-day ban
- Special procedure: union busting where there’s no observance If there’s compulsory arbitration, by operation of law, return to work
of cooling off period and 7-day ban. Note that the 7-day ban is order is automatic, and compliance is mandatory, and such obligation
distinct and separate from the cooling off period does not amount to involuntary servitude.