LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B.

Usita

EMPLOYEE-EMPLOYER RELATIONSHIP non-compliance by any of the

parties pursuant to Article 233

4. Monetary claims of O verseas
Elements of Employer-Employee
contract workers arising from
Relationship or Four-Fold Test:
employer-employee relations as
(SePa-DisCo)
provided by Section 10 of R.A. No.
1. Se lection and engagement of the
8042 amended by R.A. No. 10022
employee;
5. If accompanied with a claim for
2. Pa yment of wages;
R einstatement, those cases that
3. Power of Dis missal; and
workers may ile involving wages,
4. Power of Co ntrol (Atok Big Wedge
rates of pay, hours of work and
Company, Inc. v. Gison, 2011)
other terms and conditions of
employment
Control Test - refers to the employer’s
6. Claims for actual, moral, exemplary,
power or right to control the employee not
and other forms of D amages arising
only as to the result of the work to be done
from employer-employee relations
but also as to the means and methods by
7. U LP cases
which the same is to be accomplished
8. Wage D istortion disputes in
(Sonza v. ABS-CBN, 2004)
unorganized establishments not
voluntarily settled by the parties
Two-tiered Test:
pursuant to R.A. No. 6727
1. The putative employer’s power to
9. O ther cases as may be provided by
control the employee with respect to
law
the means and methods by which
10. Contested cases under the exception
the work is to be accomplished; and
clause of Article 128 (b) of the Labor
2. The underlying economic realities of
Code ( Vi sitorial and En forcement
the activity or relationship
powers of the DOLE Secretary)
(Francisco v. NLRC, 2006)

TERMINATION DISPUTES
Economic Dependence or Economic
Reliefs to illegally dismissed employees:
Reality
Test - refers to whether the worker
1. Payment of backwages
is dependent on the alleged employer for
- Wages, salaries, etc. from the
his continued employment in that line of
time of dismissal up to
business (Francisco v. NLRC, 2006)
actual reinstatement
- No limitation as to period
(ex. Until this year only)
JURISDICTION OF LABOR ARBITER
- No deductions (Before,
(Art. 224, formerly Art. 217, of the Labor wages from other employer
Code) (TV-CORD-U-DOVE) during the pendency of the
case were deducted)
1. T ermination disputes 2. Reinstatement
2. Cases arising from any V iolation of - Immediately executory
Article 279, including questions - Does not necessarily mean
involving the legality of strikes and actual reinstatement
lockouts 2 Options of Employer:
3. Enforcement of C ompromise a. Actual reinstatement
agreements when there is

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LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B. Usita

b. Constructive reinstatement “Wage distortion” - a situation where an

(payroll only) increase in prescribed wage rates results in
the elimination or severe contraction of
PROBLEM : What will happen to the wage intentional quantitative differences in wage
paid to employee (constructively reinstated) or salary rates between and among
when upon appeal, the appellate court employee groups in an establishment as to
reversed the grant of reinstatement: effectively obliterate the distinctions
ANSWER : No reimbursement. (A/N: Sorry embodied in such wage structure based on
Er) skills, length of service, or other logical
bases of differentiation (A/N: memorize
sabi ni Sir)
UNFAIR LABOR PRACTICE
LA only has jurisdiction over the civil aspect
of ULP, which may include liability for MONEY CLAIMS
OF
OFWS
ARISING FROM
damages ER-EE RELATIONSHIP
- Original and exclusive jurisdiction of
PROBLEM : What to ile if there is an alleged LA
violation of CBA? - Reliefs:
ANSWER : depends on the type of breach of 1. Reimbursement of
CBA placement fees and expenses
● If lagrant and serious violation of 2. Payment of moral and
economic provisions of the exemplary damages,
CBA—ULP attorney’s fees, unpaid
● Short of the above—only grievance salaries (unexpired portion)
- Reinstatement is NOT available
because they are not considered as
MONEY CLAIMS WITH REINSTATEMENT regular employees but contractual
- Principally a termination dispute
- The situation presupposed that it
proceeds from a termination case, it PURE AND SIMPLE MONEY CLAIMS (no
being accompanied with a claim for prayer for reinstatement)
reinstatement
● Secretary of Labor (thru DOLE
Regional Director ) has jurisdiction,
WAGE DISTORTION IN UNORGANIZED provided Er-Ee relationship still
ESTABLISHMENT exists
- LA acquires jurisdiction after the ● If amount of claim exceeds
parties and the NCMB failed to P5,000—LA has jurisdiction
correct the distortion (LABOR CODE,
Art. 124) PBS v. SOLE
- In organized establishments : G.R. No. 179652. May 8, 2009
Voluntary Arbitrator or panel of FACTS: The instant petition for certiorari under
Voluntary Arbitrators acquire Rule 65 assails the decision and the resolution of
jurisdiction after the grievance the Court of Appeals.
procedure in the CBA failed to settle
The petition traces its origins to a complaint iled
the case (LABOR CODE, Art. 124)
by Jandeleon Juezan (respondent) against People’s

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LABREV NOTES/PSEUDO-REVIEWER
Broadcasting Service, Inc. (Bombo Radyo Phils.,
Inc) (petitioner) for illegal deduction,
non-payment of service incentive leave, 13th
month pay, premium pay for holiday and rest day
and illegal diminution of bene its, delayed
payment of wages and non-coverage of SSS,
PAG-IBIG and Philhealth (non-diminution of
bene its in the amount allegedly 6K) before the
Department of Labor and Employment (DOLE)
Regional Of ice No. VII, Cebu City.2 On the basis of
the complaint, the DOLE conducted a plant level
inspection on 23 September 2003. Labor Inspector
wrote under the heading
“Findings/Recommendations” “non-diminution of
bene its” and “Note: Respondent deny
employer-employee relationship with the
complainant- see Notice of Inspection results.”
PETITIONER’S POSITION: Management
representative informed that complainant is a
drama talent hired on a per drama ” participation
basis” hence no employer-employeeship [sic]
existed between them. As proof of this,
management presented photocopies of cash
vouchers, billing statement, employments of
speci ic undertaking (a contract between the talent
director & the complainant), summary of billing
of drama production etc. They (mgt.) has [sic] not
control of the talent if he ventures into another
contract w/ other broadcasting industries.
RULING OF DOLE REGIONAL DIRECTOR: Article 128 (b) Notwithstanding the provisions of
respondent is an employee of petitioner, and that
the former is entitled to his money claims
amounting toP203,726.30. MR denied; Appeal
with the DOLE Secretary, dismissed the appeal on
the ground that petitioner did not post a cash or
surety bond and instead submitted a Deed of
Assignment of Bank Deposit.
APPEAL WITH THE CA: claiming that it was
denied due process when the DOLE Secretary
disregarded the evidence it presented and failed to
give it the opportunity to refute the claims of
respondent. Petitioner maintained that there is no
employer-employee relationship had ever existed
between it and respondent because it was the
drama directors and producers who paid,
supervised and disciplined respondent. It also
added that the case was beyond the jurisdiction of
the DOLE and should have been considered by the
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Atty. Peter-Joey B. Usita
labor arbiter because respondent’s claim exceeded
P5,000.00. CA denied.
WITH THE
SC: petitioner argues that the National
Labor Relations Commission (NLRC), and not the
DOLE Secretary, has jurisdiction over
respondent’s claim, in view of Articles 217 and
128 of the Labor Code.
RESPONDENT’S POSITION: respondent posits
that the Court of Appeals did not abuse its
discretion. He invokes Republic Act No. 7730,
which “removes the jurisdiction of the Secretary
of Labor and Employment or his duly authorized
representatives, from the effects of the restrictive
provisions of Article 129 and 217 of the Labor
Code, regarding the con inement of jurisdiction
based on the amount of claims.”; and wrong mode
of appeal.
ISSUE: WON the Secretary of Labor have the
power to determine the existence of an
employer-employee relationship.
HELD: No
To resolve this pivotal issue, one must look into
the extent of the visitorial and enforcement power
of the DOLE found in Article 128 (b) of the Labor
Code, as amended by Republic Act 7730. It reads:
Articles 129 and 217 of this Code to the contrary,
and in cases where the relationship of
employer-employee still exists, the Secretary of
Labor and Employment or his duly authorized
representatives shall have the power to issue
compliance orders to give effect to the labor
standards provisions of this Code and other labor
legislation based on the indings of labor
employment and enforcement of icers or
industrial safety engineers made in the course of
inspection xxx
The provision is quite explicit that the visitorial
and enforcement power of the DOLE comes into
play only “in cases when the relationship of
employer-employee still exists.” Of course, a
person’s entitlement to labor standard bene its
under the labor laws presupposes the existence of
employer-employee relationship in the irst
LABREV NOTES/PSEUDO-REVIEWER
place.The clause signi ies that the
employer-employee relationship must have
existed even before the emergence of the
controversy. Necessarily, the DOLE’s power does
not apply in two instances, namely: (a) where the
employer-employee relationship has ceased; and
(b) where no such relationship has ever existed.
The irst situation is categorically covered by Sec.
3, Rule 11 of the Rules on the Disposition of Labor
Standards Cases15 issued by the DOLE Secretary.
It reads:
Rule II MONEY CLAIMS ARISING FROM
COMPLAINT/ROUTINE INSPECTION
Sec. 3. Complaints where no employer-employee
relationship actually exists. Where
employer-employee relationship no longer exists
by reason of the fact that it has already been
severed, claims for payment of monetary bene its
fall within the exclusive and original jurisdiction
of the labor arbiters. Accordingly, if on the face of
the complaint, it can be ascertained that
employer-employee relationship no longer exists,
the case, whether accompanied by an allegation of
illegal dismissal, shall immediately be endorsed
by the Regional Director to the appropriate branch
of the National Labor Relations Commission
(NLRC).
Clearly the law accords a prerogative to the NLRC
over the claim when the employer-employee
relationship has terminated or such relationship
has not arisen at all. The reason is obvious. In the
second situation especially, the existence of an
employer-employee relationship is a matter
which is not easily determinable from an ordinary
inspection, necessarily so, because the elements
of such a relationship are not veri iable from a
mere ocular examination. The determination of
which should be comprehensive and intensive
and therefore best left to the specialized
quasi-judicial body that is the NLRC.
It can be assumed that the DOLE in the exercise of
its visitorial and enforcement power somehow
has to make a determination of the existence of an
employer-employee relationship. Such
prerogatival determination, however, cannot be
coextensive with the visitorial and enforcement
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Atty. Peter-Joey B. Usita
power itself. Indeed, such determination is merely
preliminary, incidental and collateral to the
DOLE’s primary function of enforcing labor
standards provisions. The determination of the
existence of employer-employee relationship is
still primarily lodged with the NLRC.
Thus, before the DOLE may exercise its powers
under Article 128, two important questions must
be resolved: (1) Does the employer-employee
relationship still exist, or alternatively, was there
ever an employer-employee relationship to speak
of; and (2) Are there violations of the Labor Code
or of any labor law?
A mere assertion of absence of
employer-employee relationship does not deprive
the DOLE of jurisdiction over the claim under
Article 128 of the Labor Code. At least a prima
facie showing of such absence of relationship, as
in this case, is needed to preclude the DOLE from
the exercise of its power.
Without a doubt, petitioner, since the inception of
this case had been consistent in maintaining that
respondent is not its employee. Certainly, a
preliminary determination, based on the evidence
offered, and noted by the Labor Inspector during
the inspection as well as submitted during the
proceedings before the Regional Director puts in
genuine doubt the existence of
employer-employee relationship. From that point
on, the prudent recourse on the part of the DOLE
should have been to refer respondent to the NLRC
for the proper dispensation of his claims.
Furthermore, as discussed earlier, even the
evidence relied on by the Regional Director in his
order are mere self-serving declarations of
respondent, and hence cannot be relied upon as
proof of employer-employee relationship.
Petition GRANTED.
Important Concepts
to
Remember: (from
Sir)
1. RD has the power and authority to
determine Er-Ee relationship in case
it becomes an issue
2. P5,000 limit no longer holds
water —the purpose of RA 6715 is
LABREV NOTES/PSEUDO-REVIEWER
to strengthen the visitorial and
enforcement power of the Secretary
of Labor acting thru RDs.
If we keep on limiting its
authority to P5,000 and below, then
we are not giving life to RA 6715.
VOLUNTARY ARBITRATOR JURISDICTION
1. Unresolved grievances arising from
the interpretation
implementation of the CBA
2. Unresolved grievances arising from
the interpretation or enforcement of
company personnel policies
3. Violations of the CBA which are not
gross in character
4. Other labor disputes , including
ULP and bargaining deadlocks,
upon agreement of the parties the monetary award, excluding: (a)
5. Wage distortion issues arising from
the application of any wage orders
in organized establishments
6. Unresolved grievances arising from
the interpretation
implementation of the Productivity
Incentive Programs under RA 6971
Note: VA has broader jurisdiction than LA
because any dispute, as long as the parties
submit them to the VA, he has jurisdiction
PROCEDURE IN LA
1. Requires parties to have mandatory
mediation and conciliation
2. If no settlement: terminate the
conciliation and mediation
proceedings
3. Require position paper
- Allegations and arguments
of parties
- contents:
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Atty. Peter-Joey B. Usita
(a) Parties and
circumstances
(b) Brief statement of
facts
(c) Core issues
(d) Arguments and
discussion
4. LA may allow parties to submit
Reply
APPEALS
or
For complaining employee: ile
memorandum of appeal to NLRC within
10-calendar day
For employer:
1. File Memorandum of Appeal within
10-calendar day
2. Post an appeal bond equivalent to
moral and (b) exemplary damages,
and (c) attorney's fees
Reduction of Appeal Bond
and General Rule : no motion to reduce bond
shall be entertained (NLRC RULES, Rule VI,
Sec. 6)
Exception : within the period of appeal, a
Motion for Reduction of Appeal Bond
may be made if the following requisites are
met: (RAM )
1. A R easonable Amount (10% of
monetary award) of appeal bond in
relation to the monetary award is
posted; a nd
2. There exists a M eritorious ground
for such reduction (NLRC RULES,
Rule VI, Sec. 6), i.e., inancial status of
appellant (McBurnie v. Ganzon,
2013)
However, NLRC retains authority and duty
to resolve motion to reduce bond and
determine the inal amount of bond
LABREV NOTES/PSEUDO-REVIEWER
Note: Appeal + Appeal bond must be
complied with, else LA decision will become
inal
Sara Lee PHL, Inc. v. Macatlang 2. Inter-union con licts; and
G.R. No. 180147. January 14, 2015
The 10% requirement in McBurnie pertains to the
reasonable amount which the NLRC would accept
as the minimum of the bond that should
accompany the motion to reduce bond in order to
suspend the period to perfect an appeal under the
NLRC rules. It is based on the judgment award and
should in no case be construed as the minimum
amount of bond to be posted in order to perfect
appeal. There is no hard and fast rule in
determining whether the additional bond to be
posted is reasonable in relation to the judgment
award
APPEAL TO CA :
- within 60 days
- Judgment will not be suspended by
the appeal to CA
JURISDICTION OF NLRC LABOR ORGANIZATIONS
Exclusive and Original Jurisdiction: CVIC “Labor Organization” is any union or
1. C erti ied cases - cases certi ied to it
for compulsory arbitration by the
SOLE under Article 278 (g) of the
Labor Code or the President under
Article 279 (a) of LC
2. V eri ied petition to annul or modify
the order or resolution (including
those issued during execution
proceedings) of the Labor Arbiter
3. Petition for I njunction in:
a. Ordinary labor cases
b. Strikes and lockouts
4. C ontempt cases
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Atty. Peter-Joey B. Usita
JURISDICTION OF BUREAU OF LABOR
RELATIONS
IIO
1. Intra-union con licts;
3. Other related labor disputes,
grievances or problems arising from
or affecting labor-management
relations
Additional Case to Remember:
Magbanua v. Uy
G.R. No. 161003. May 6, 2005
Rights may be waived through a compromise
agreement, notwithstanding a inal judgment that
has already settled the rights of the contracting
parties. To be binding, the compromise must be
shown to have been voluntarily, freely and
intelligently executed by the parties, who had full
knowledge of the judgment. Furthermore, it must
not be contrary to law, morals, good customs and
public policy.
association of employees which exists in
whole or in part for the purpose of
collective bargaining with employers
concerning terms and conditions of
employment (LABOR CODE, Art. 219 (g))
“Union” is any labor organization in the
private sector organized for collective
bargaining and for other legitimate
purposes
“Legitimate Labor Organization” is any
labor organization which is duly registered
with DOLE. The term includes a
local/chapter directly chartered by a
legitimate federation or national union
which has been duly reported to the
Department in accordance with Section 2,
LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B. Usita

Rule VI, Book V of the Implementing Rules
(LABOR CODE, Art. 219 (h)) operate;
“Independent Union” is any labor
organization operating at the enterprise
level whose legal personality is derived
through an independent action for
registration with the BLR or DOLE
prescribed under Art. 240 of the Labor
Code. it may be af iliated with a federation,
national or industry union, in which case it
may also be referred to as an af iliate .
bargaining unit where it seeks to
4. If the applicant union has been in
E xistence for one (1) or more years,
copies of its annual inancial
reports; and
5. Four (4 ) copies of the constitution
and by-laws of the applicant union,
minutes of its adoption or
rati ication, and the list of the
members who aprticcipated in it
(LABOR CODE, Art. 240)

“Exclusive Bargaining Representative” is - BLR only has ministerial duty in

a legitimate labor union duly recognized or approving registrations but it can
certi ied as the sole and exclusive still deny if the application is
bargaining representative or agent of all the vitiated by falsi ication and serious
employees in a bargaining unit irregularities, especially those
appearing on the face of application
REQUIREMENTS FOR REGISTRATION (Progressive Development
Corporation-Pizza Hut v. Laguesma,
Concept of Registration : the fact of being 1997)
registered with the DOLE that makes a labor
organization legitimate in the sense that it is Mandamus, not Certiorari, is the proper
clothed with legal personality to claim remedy
representational and bargaining rights Certiorari is not the proper remedy since
enumerated in Art. 250 or to strike or picket the approval of application for registration
under Art. 278 is not a judicial function (U.E. Automotive
- Organizations become legitimate Employees and Workers Uniontrade Unions
upon issuance of Certi icate of of the PHL and Allied Services v. Noriel, 1976)
Registration
Ministerial Duty of the BLR
Compellable
Requirements for the Issuance of the by Mandamus
Certi icate of Registration of Labor The ministerial duty involves ONLY the
Organizations: (FNI-E4) review of the application for registration
1. Fifty pesos (P50.00) registration and NOT the issuance of a Certi icate of
F ee; Registration (Vassar Industries Employees
2. N ames of its of icers, their addresse, Union v. Hon. Estrella, 1978)
the principal address of the labor
organization, the minutes of the NATIONAL UNION/FEDERATION
organizations meetings adn the list - any labor orgnization with at least
of the workers who participated in 10 locals/chapters each of which
such meetings; must be a duly certi ied or
3. In case the applicant is an recognized collective bargaining
I ndependent union, the names of all agent
its members comprising at least
20% of all the employees in the

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LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B. Usita

General Rule : It is the fact of being UNFIAR LABOR PRACTICE

registered with the DOLE that makes a labor
organization legitimate in the sense that it is
1—ARTICLE 247. CONCEPT OF ULP
clothed with legal personality to claim the
Unfair labor practices violate the
representational and bargaining rights
constitutional right of workers and
enumerated under the Labor Code
employees to self-organization, are inimical
to the legitimate interests of both labor and
Exception :
management, including their right to
Tentative Legal Personality to File
bargain collectively and otherwise deal with
Petition for Certi ication Election (PCE)
each other in an atmosphere of freedom and
A duly registered federation or national
mutual respect, disrupt industrial peace and
union may directly create a local chapter by
hinder the promotion of healthy and stable
issuing a charter certi icate indicating the
labor-management relations.
establishment of the local chapter. The
not only violations of the civil rights
chapter shall acquire legal personality only
of both labor and management but are also
for purposes of iling a petition for
criminal offenses against the State which
certi ication election from the date it was
shall be subject to prosecution and
issued a charter certi icate (LABOR CODE,
punishment as herein provided.
Art. 241)
may include claims for actual, moral,
exemplary and other forms of damages,
WHO CANNOT JOIN LU (HEMACEN accdg
attorney’s fees and other af irmative relief
to JBJ)
resolve such cases within thirty (30)
1. H igh level government employees
calendar days from the time they are
2. E mployees of Cooperatives who are
submitted for decision
members
3. M anagerial employees
2—ARTICLE 248. ULP OF EMPLOYERS
4. A FP and Police personnel
1. Interference with, restraint or
5. C on idential Employees
coercion in the exercise of right to
6. E mployees of International
self-organization;
Organizations with immunity
2. Yellow dog contract;
7. N on-employees
- Requirement as a condition
of employment that a person
TWO TYPES OF UNION
or an employee shall not join
1. Rank-and- ile
a labor organization or shall
2. Supervisory
withdraw from one to which
he belongs;
Effect of co-mingling: those co-mingled
3. Contracting out services adn
automatically removed
functions in order to coerce or
In Federation/National Unions: there are
restrain employees’ exercise of the
co-comingling
right to self-organization;
4. Initiating, Dominating, Assisting,
Interfering, and Giving Support to
Unions;
5. Discrimination in order to
encourage of discourage union
membership;

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LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B. Usita

6. Retaliatory dismissal or
discrimination due to adverse
testimony; (USITA: not really a
violation of self-organization right)
7. Violation of the duty to bargain;
8. Paying negotiation or attorney’s fee
to the union as part of the
settlement of any issue in collective
bargaining or any other dispute; or
9. Violation of collective bargaining
agreement.
5. Asking or accepting negotiation or
attorney’s fee from management as
part of the settlement of any issue in
collective bargaining or any other
dispute; or
6. Violation of a collective bargaining
agreement.
COLLECTIVE BARGAINING AGREEMENT

Elements of ULP of Employers:

- contract between a legitimate labor
1. There must be a practice or act
union and the employer concerning
2. There is a purpose (i.e., to violate or
wages, hours of work, and all other
weaken the employees’ right to
terms and conditions of
self-organization)
employment in a bargaining union

3—ARTICLE 249. ULP OF LABOR

Purposes of Collective Bargaining
ORGANIZATIONS
1. To protect workers
1. Restraint or Coercion in the exercise
2. To empower the workers
of the rights to self-organization.
3. To make the right of
However, a labor organization shall
self-organization useful and
have the right to prescribe its own
meaningful
rules with respect to the acquisition
4. To be the preferred mode of settling
or retention of membership;
labor disputes before resorting to
2. Causing or attempting to cause an
strikes
employer to discriminate against an
5. To be the preferred mode over that
employee;
of compulsory arbitration
3. Violation of the duty to bargain;
4. Causing or attempting to cause an
Duty to Bargain Collectively
employer to pay or deliver or agree
When there is NO CBA yet
to pay or deliver any money or other
- To meet and convene promptly in
things of value, in the nature of an
good faith for the purpose of
exaction, for services which are not
negotiating an agreement
performed or not to be performed,
- Does not compel any party to agree
including the demand for fee for
to a proposal or to make any
union negotiations;
concession

“Featherbedding” - (make-work
When there is a CBA already
agreements) employee practices
- Neither party shall terminate nor
which create or spread employment
modify the CBA during its lifetime,
by unnecessarily maintaining or
however, either party can serve a
increaing the number of employees
written notice to terminate or
used, or the amount of time
modify the agreement at least sixty
consumed, to work on a particular
job

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LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B. Usita

(60) days prior to its expiration date Freedom Period 60-day Period
(freedom period)
- Duty of both parties to keep the As to de inition
status quo and to continue in full
force and effect the terms and last 60 days of the "notice period" for
CBA's 5th year of renegotiation of an
conditions of the existing agreement the expiring CBA;
during the 60-day period and/or representational refers to modifying
until a new agreement is reached by aspect or renegotiating
the parties the CBA economic
provisions
Procedures in Collective Bargaining
As to nature
1. Written notice of intent, with
written proposals political event economic event
2. Written reply within ten (10) between rival
calendar days unions and voters
3. Conference within ten (10) calendar
As to the participation of the employer
days from receipt of request
4. NCMB to intervene thru conciliation ER is not a party ER is a party
5. Settle the dispute or have it
submitted to voluntary arbitration

DETERMINING THE BARGAINING UNION

Period of CBA
With respect to repsentation a spect :
duration is ixed at 5 years Four Factors in Determining the
With respect to non-repsentation aspect : Appropriate Baragaining Unit : (CGEH)
duration is maximum of 3 years 1. C ommunity of Interest Doctrine or
Substantial Mutual Interest Rule -
Automatic Renewal Clause af inity and unity of employees'
The CBA shall remain effective and interest
enforceable even after the expiration of the 2. G lobe Doctrine - based on the
period ixed by the parties as long as no express will or desire of teh
new agreement is reached by them (LABOR employees
CODE, Art. 264) 3. E mployment Status, such as
(a) temporary,
“Freedom Period” - 60-day period (b) seasonal, and
immediately preceding the expiration of the (c) probationary employee
representation period of 5 years in the CBA 4. Prior collective bargaining H istory -
neither decisive nor conclusive
What may be done during the 60-day
freedom period: Methods to determine the bargaining
1. Disaf iliation representative
2. Petition for Certi ication Election 1. Request for SEBA
3. Written notice to termiante or 2. Certi ication election
modify the agreement on 3. Run-off election
renegotiable/non-representational - An election beween the
aspect of the CBA labor unions receiving the 2
highest number of votes in a

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LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B. Usita

certi ication or consent CERTIFICATION ELECTION

election with 3 or more - process of determining, through
choices, where such a secret ballot, the SEBA in an
certi ied or consent election appropriate bargaining unit for
results in none of the 3 purposes of collective bargaining or
choices receiving the negotiation
majority of the valid votes
cast Who may ile a Petition for
Certi ication
4. Re-run election Election
- Election conducted to break 1. Any LLO , including a national union
a tie between the contending or federation that has issued a
unions, including “No Union” charter certi icate to its
- Election conducted after a local/chapter or the local/chapter
failure of election has been itself; or
declared by the election 2. An employer , when requested to
of icer and/or af irmed by bargain collectively in a bargaining
the mediator-arbiter unit where no registered collective
5. Consent election bargaining agreement exists
- voluntarily agreed upon by
the parties with or without Where to ile:
the intervention of DOLE Regional Of ice which issued the petitioning
union's certi icate of registration/certi icate
SEBA CERTIFICATION of creation of chartered local
- process whereby the DOLE
recognizes a labor organization as When to ile: a nytime, except: (1-CSR)
the exclusive bargaining 1. When a valid certi ication, consent
representative of the employees in or run-off election has been
the appropriate bargaining unit conducted within the bargainin unit
Request for SEBA Certi ication in witihin 1 year prior to the iling of
unorganized establishment with only one the petition for certi ication
legitimate organization : election.
- DOLE RD shall validate and call a Where an appeal has been
conference iled from the order of the
Med-Arbiter certifying the results of
Request for SEBA Certi ication in the election, the running of the
unorganized establishment with more than one-year period shall be suspended
one l egitimate organization : until the decision on the appeal has
- DOLE RD should refer the same to become inal and executory;
the Election Of ier for the conduct of 2. When the duly certi ied union has
certi ication election C ommenced and sustained
negotiations in good faith with the
Request for certi ication in organized employer in accordance with Article
establishment : 261 of the Labor Code within the
- DOLE RD should refer the same to one-year period referred to in the
the Mediator-Arbiter for immediately preceding paragraph;
determination of the propriety of 3. When a bargaining deadlock to
conducting a certi ication election which an incumbent or certi ied

WARNING: Based on lecture only. Not proofread

LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B. Usita

bargaining agent is a party had been Valid Votes 485 499

S ubmitted to conciliation or
arbitration or had become the Union A 400 240
subject of a valid notice of strike or
lockout; Union B 70 40
4. When a collective bargaining Union C 10 10
agreement between the employer
and a duly recognized or certi ied Union D 5 9
bargaining agent has been
No Union 0 200
R egistered in accordance with
Article 238 of the LC. where:
Where such CBA is Eligible voters: 1000
registered, the petition may be iled Majority of eligible voters: 501
only within 60 day sprior to its
expiry Scenario I
Is the election valid?
To have a valid certi ication election: Not
valid , because the required vote
1. at least majority of all the eligible of majority (1st Majority) of the eligible
voters in the ABU must have cast voters was not attained (only 490 voted)
their votes (even if some of the votes
case are not valid) (Article 256, LCP) Which choice won?
2. the labor Union receiving the None , since there was no valid
majority of the valid votes cast shall certi ication election.
be certi ied as the SEBA of all the
workers of the ABU What is the next step?
After valid election: Conduct of another certi ication election
3. a Certi ication of Collective
Bargaining Agent shall be issued to Which of the choices shall participate?
the SEBA All of the unions ( Unions A, B, C & D)
If election is valid, but no union gained
majority vote: Scenario II
4. run-off elections between labor Is the election valid?
unions receiving the two (2) highest Valid , because the required vote of
number of votes shall be held majority (1st majority) of the eligible voters
If election is not valid: was attained (515 voted)
5. re-election shall be held with all the
unions as participants Which choice won?
None , because to be declared the
Illustration: SEBA, the union should have received
majority (2nd Majority) of the valid votes
ABU = 1000 employees
cast, whether valid or invalid votes. In this
I II case, 499 valid votes , hence, the union
which receives its majority, 250.5 should be
Voted 490 515 declared SEBA. No union acquired such vote
in this case
Invalid Votes 5 16

WARNING: Based on lecture only. Not proofread

LABREV NOTES/PSEUDO-REVIEWER Atty. Peter-Joey B. Usita

What is the next step? Which of the choices incumbent union (LABOR
CODE, Art.
shall participate? 265)
Run-off election between Union A Exception : During the 60-day
and Union B, which received the two (2) freedom period
highest number of votes (*No Union shall
not be a choice in the run-off election) 3. Deadlock Bar Rule
- a petition for CE can only be
Elements of Run-Off election: entertained if there is no
1. there was a valid certi ication pendign bargaining
election deadlock submitted to
2. there were at least three choices conciliation or arbitration or
3. none of the choices got majority of had become the subject of a
the valid votes vlid notice of strike or
4. “No Union” is eliminated lockout
5. Total number of votes of all - not applicable in case of
contending unions is at least 50% of arti icial deadlock which is
the total votes cast a deadlock prearranged or
preserved by collusion of the
“Double Majority Rule” (Article 256, LCP) employer and the majority
a. FIRST MAJORITY: to have a valid union
election, at least a MAJORITY of all
eligible voters in the ABU must cast “Deadlock” - arises when there is an
their votes impasse, which presupposes reasonable
b. SECOND MAJORITY: The Labor effort at goo faith bargaining which, despite
Union receiving the majority of the noble intentions, did not conclude in an
valid votes cast shall be certi ied as agreement between the parties
SEBA

Rules Which Prevent the Holding of a 4. Negotiation Bar Rule

Certi ication Election - a petition for certi ication
1. Certi ication Year Bar Rule election cannot be
- No petition for certi ication entertained if, before the
election may be iled within iling of the petition for
1 year from the date of a certi ication election, the
valid certi ication, consent, duly recognized or certi ied
or run-off election or from union has commenced
the date of voluntary negotiations with the
recognition employer in acordance with
- same ban if "no union" won Art. 261 of LC within the one
in the previous election year period referred to in
certi ication year rule
2. Contract-Bar Rule
General rule : while a valid and
registered CBA is subsisting for a
ixed period of 5 years, the Bureau is
not allowed to hold an election
contesting the majority status of the

WARNING: Based on lecture only. Not proofread