Jurisdictional Preconditions of Collective Bargaining:

1. Possession of status of majority representation of the employees’ representative;

2. Proof of majority representation;

3. A demand to bargain.

ULP (employer) - to deal and negotiate with the minority representative.

ULP (union) – if there exist a legitimate issue as to which of the several unions is the legitimate representative, and a
union staged a strike and demand the employer to bargain with it.

Certification year – within 12 months following the determination and certification of the employees’ EBR. (start of
bargaining/ duty of the employer to bargain). ULP if employer refuse to bargain during this period.

Union certified by NLRB as bargaining representative enjoys:

 One-year – irrefutable presumption of majority status

 Beyond one-year – rebuttable presumption of majority status

Duty to bargain collectively:

1. Performance of a mutual obligation 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 executing a contract
incorporating such agreements. (Art. 263 – no CBA yet)

2. Neither party shall terminate nor modify such agreement during its lifetime. (Art. 264 – CBA exists)

4 Acts of ULP in bargaining:

1. Failure or refusal to meet and convene;

2. Evading the mandatory subjects of bargaining;

3. Bad faith in bargaining;

4. Gross violation of the CBA.

FIRST ULP IN BARGAINING - FAILURE OR REFUSAL TO MEET AND CONVENE

 Kiok Loy Experience – Non-reply to proposal; proposed CBA Imposed on the Employer.
 Pendency of a petition for cancellation – does not preclude collective bargaining
 Refusal to bargain with an Unregistered Chapter – not ULP
 ULP if employer discharge employees to forestall a demand for collective bargaining.
 Er is also responsible if he indirectly causes the discharge by selling to a company that he knows is unwilling to
accept his employees.
 Successor Employer: Continuity and Identity – transfer leaves intact the identity (identity of the workforce) of
the employing enterprises, the old employer’s duty to bargain devolves on the new employer as successor
employer. Exception: buyer makes substantial nondiscriminatory personnel changes and changes in the
operational structure of the business. (need not to recognize or bargain with the incumbent union)
 Financial hardship constitutes no excuse for refusing to bargain collectively (duty to bargain does not compel
either party to agree to a proposal/making of a concession, Er can reject demands, as long as he continues to
negotiate).
  Acts not deemed refusal to bargain
o Adoption of an adamant bargaining position in good faith, particularly where company is operating at
loss;
o Refusal to bargain over demands for commission of unfair labor practices;
o Refusal to bargain during period of illegal strike;
o Pursuant to an honest doubt, employer demanded additional proof of official certification, Er has no
obligation to enter into negotiations until the demanded proof is presented;
o No request for bargaining;
o Union seeks recognition for an inappropriately large unit;
o Union seeks to represent some persons who are excluded from the Act;
o Rank and file includes supervisors;
o Demand for recognition and bargaining was made within the year following a CE where clear choice was
no union and no ad interim significant change has taken place in the unit;
o Union makes unlawful bargaining demands.

SECOND ULP IN BARGAINING: EVADING MANDATORY SUBJECTS

 Statutory or mandatory proposals – Er’s refusal to negotiate is ULP.

 Other matters – Er is free to bargain or not to bargain.
 Mandatory collective bargaining – must materially or significantly affect the terms and conditions of
employment. (includes those already granted and announced Er intends to grant)
 Wage – renumeration or earnings, however designated, capable of being expressed in terms of money, etc.
(includes not only compensation but also emoluments of value)
 Pension & Insurance for active employees – mandatory
 Benefits accorded to retirees – not mandatory
 Matters considered as mandatory subjects of bargaining:
o Wages and other types of compensation;
o Working hours and working days, including work shifts;
o Vacations and holidays;
o Bonuses;
o Pension and retirement plans;
o Seniority;
o Transfer;
o Lay-offs;
o Employee workloads;
o Work rules and regulations;
o Rent of company houses;
o Union security arrangements.
 Solomonic Approach – due consideration and proper balancing of the interest of the parties
(reasonableness/discretion)
 Code of conduct/discipline – proper subjects of collective bargaining.
 Arbitration, Strike-Vote, or No-Strike Clauses – Er may lawfully bargain to an impasse
 No-Lockout Clause, Clause fixing contractual terms – ULP if Er does not negotiate
 Signing Bonus – grant motivated by the goodwill created when CBA is successfully negotiated and signed.
Otherwise stated, it may not be demanded as a matter of right if not agreed upon by the parties or not
unilaterally offered by Er.
 Voluntary benefits – granted by Er although not required by law. If existing, it is a proper subject of bargaining.
 Er has no duty to agree or to grant even on mandatory subjects. (only duty to bargain/negotiate)
 Non-mandatory subjects – Er cannot insist on the inclusion of a provision outside the scope of the statutory
bargaining subjects. On the other hand, it is lawful to insist on the inclusion of a provision if it is within the scope
of a statutory subject of bargaining.
If subject is non-mandatory, it may be discussed if both parties agree, but a strike or lockout may not be used to
compel negotiation or agreement.
 Bargaining to an impasse – not necessarily bad faith (may or may not amount to bargaining in bad faith
depending on whether the insistence refers to a mandatory or non-mandatory subject.
 If mandatory – party may insist on bargaining, even to the point of deadlock.
 If non-mandatory – party may not insist on bargaining to the point of deadlock. It may be construed as evasion
of the duty to bargain.
  Bargaining impasse – exist where good faith bargaining on the part of parties has failed to resolve the issue and
there are no definite plans for further efforts to break the deadlock.
 Impasse – reasonable effort at good-faith bargaining which, despite noble intentions, does not conclude in an
agreement between the parties.
 A substantial change in the bargaining position of one party is necessary to break an existing impasse so as to
render unlawful the other party’s subsequent refusal to meet and bargain.
 No valid bargaining impasse – when deadlock is caused by failure of one of the parties to bargain in good faith.
 Off-the-record discussion – considered in determining whether the parties were at impasse.
 Deadlock does not mean the end of bargaining.
 Even after the union and the employer reach a genuine bargaining impasse, the Er commits ULP if it cancels a
scheduled bargaining meeting because the union filed ULP charges against him.
 Bargaining deadlock is a valid reason to declare a strike or lock-out.

THIRD ULP IN BARGAINING: BAD FAITH

 Good faith in bargaining – requires a sincere effort to reach agreement, although it does not require
agreement itself.
 Refusal to negotiate about mandatory subjects – bad faith
 Determination of good faith – A question of fact (consideration of the negotiation as a whole)
 Er’s entire course of conduct or the totality of circumstances may show lack of good faith, although none of
its specific acts amount to the prescribed conduct.
 Bad faith in bargaining – charge should be raised while the bargaining is in progress.
 Delay of, or Imposing Time Limit on, Negotiations – bad faith in bargaining
o Er imposed a seven-month hiatus due to unavailability of negotiators;
o Er postponed several meetings and made no attempt to reach an agreement;
o Er negotiator frequently interrupted bargaining sessions with time-consuming discussions, and no
areas of agreements were reached in spite of some counter proposals offered by the union;
o Er subsequently retreated from previously agreed items;
o Er pursued patterns of tactics designed to delay negotiations as long as possible.
 Bad faith in bargaining –
o er engages in ULP while bargaining with the union;
o er engages in dilatory tactics during negotiations;
o er institutes wage cut by unilateral action and without consulting the majority representative;
o er fails to vest its negotiators with sufficient authority to make agreements
 Prior adjudication of bad faith in an earlier occasion is not itself substantial evidence of present bad faith.
 Mere filing of CE does not ipso facto justify the suspension of negotiation by the Er. Petition must first
comply with the provisions of the LC and its IRR.
 Bad faith – Surface bargaining, shifting bargaining positions, blue sky bargaining
 Surface bargaining – going through motions of negotiating without any legal intent to reach an agreement.
 Blue-Sky Bargaining – making exaggerated or unreasonable proposals
 Giving information – part of good faith is supplying of information to the other parties
 Four points in time when the union may ask in writing for FS, BS, PL statement:
o After union has been recognized by Er as EBR/SEBA;
o After union is certified by DOLE as EBR/SEBA;
o During collective bargaining negotiations; or
o Within the last 60 days of the life of a CBA (time to give notice to terminate or modify CBA [notice
period])
*refusal to provide relevant information after the same has been requested constitutes per se
violation of the duty to bargain.
 However, union’s right to disclosure of relevant and necessary data can be waived in the CBA. But even in such
waiver, Er must furnish information to the negotiation of a new agreement.
 Employer’s duty to supply information does not arise until the union makes as request or a demand that the
information be furnished.
 Bad faith – Inflexible demands; Strike amid negotiation (bad faith on the part of the union)
 Bad faith: Boulwarism; Take it or leave it bargaining
 Not bad faith – to propose modifications to the expiring CBA (add, remove, reduce, modify) during the notice
period, hence, nondiminution of benefits does not apply to CBA (Art. 100).

FOURTH ULP IN BARGAINING: GROSS VIOLATION OF CBA

  Occurs only when the collective contract is already in place. (negotiations are over; documents signed, sealed
and delivered)
 Violation must be “gross”
 Remaining steps of bargaining – ratification, execution, and registration.

RATIFICATION BY THE CBU – MANDATORY

o Ratifying group is not just the majority union but the majority of all workers in the bargaining unit
o CBA must be posted in two conspicuous places for five days to inform workers of its provisions so that
they may intelligently decide whether to accept the negotiated contract;
o CBA submitted must carry a sworn statement of the union secretary, attested by the union president,
that the CBA was duly posted and ratified.
o Requirements being mandatory, non-compliance therewith renders the CBA ineffective.
 Ratification is not needed when it is a product of an arbitral award by appropriate government authority or by a
voluntary arbitrator. However, CBA must still be posted in two conspicuous places in the workplace for
information and should also be registered.
 CBA ratified but not signed – effective (lack of purely ministerial act of signing the formal contract did not
obviate the fact that there was a binding contract)
 CBA unratified but implemented – effective (one cannot receive benefits under the provisions favorable to them
and later insist that the CBA is void simply because other provisions turned out not to the liking of certain
employees. It is iniquitous to receive benefits from a CBA and later on disclaim its validity)

EXECUTION OF CONTRACT

 Which comes first: Ratification or Execution? – LC does not specify. In any case, the important thing is the
ratification, not the sequence of steps.
 Unwritten or Unsigned Agreement – CBA is valid, if neither party requests a written instrument.

REGISTRATION OF CBA

 Registration within 30 calendar days from execution of the agreement.

 Failure to register does not make it invalid or unenforceable.
 Non-registration only renders the contract-bar rule (once a collective bargaining agreement is executed, no
representative elections are permitted for that bargaining unit for up to three years) inoperative.
 Registration requirements:
o Collective bargaining agreement;
o Statement that the CBA was posted in at least two conspicuous places in the establishment for at least
five days before its ratification;
o Statement that the CBA was ratified by the majority of the employees in the CBU.
 Application may be denied if the supporting documents are incomplete or not verified under oath.
 Denial by Regional Office – appealable to the Bureau within 10 days from such denial
 Denial by the Bureau – appealable to the Secretary within 10 days from such denial

IMPLEMENTATION, THEN RENEGOTIATION

 Implementation is still part of the duty to bargain.

 Neglecting, deviating from or violating the terms of the CBA constitutes ULP.
 Renegotiation applies only to renegotiable provisions (those which does not pertain to the identity and political
status of the bargaining union)
 All nonpolitical and nonrepresentational issues may be reopened and renegotiated.

AUTOMATIC RENEWAL OF CBA

 The parties shall continue the CBA in “full force and effect” until they reach a new agreement.
 In the same vein, benefits under the CBA extends to those employees who are hired subsequently.
 Otherwise stated, terms and conditions of a CBA continue to have force and effect beyond the stipulated term
when no new agreement is executed by and between the parties.

EFFECTIVITY AND RETROACTIVITY OF CBA

 If CBA is first ever – effectivity date is whatever date the parties agree on. (date is important in relation to wage
increase, if any)
 If CBA is renegotiated:
 o If the renegotiation is finished and new CBA is concluded within six months from expiry of the old CBA –
new CBA starts to take effect on the date following such expiry date;
o If completed beyond six-month period – it will not automatically retroact. If it will retroact at all, it shall
be the date agreed upon by the parties.
 Date of agreement is “concluded” or “entered into” – date the parties agreed not the date signed. (meeting of
minds)
 Principle of hold-over – absence of a new CBA, parties must maintain status quo and must continue in full force
and effect the terms and conditions of the existing agreement until a new agreement is reached.
 Absence of an agreement, an arbitrated CBA takes on the nature of any judicial award; it operates and may be
executed only prospectively, unless there are legal justifications for its retroactive application.
 In Manila Electric case, CBA arbitral awards granted after six months from the expiration of the last CBA shall
retroact to such time agreed upon by the parties. Absent such agreement, award shall retroact to the first day
after the six-month period following the expiration of the last CBA. (e.g. old CBA expired on Dec. 31, hence July 1
is the effectivity date)

DURATION OF THE CBA

 Representation Aspect – identity and majority status of the union that negotiated the CBA as the exclusive
representative of the CBU. (5 years)
 All other provisions – rest of the CBA, economic as well as non-economic other than representational. (3 years)
 Why not synchronized the two terms? – 3 years was too short for the representation aspect while 5 years was
too long for the economic provisions. (as time goes by, value of peso goes down)
 If the economic provision was renegotiated for another 3 years and a new union won, it shall “administer the
contract for one year”

EXTENSION OF EFFECTIVITY OF CBA, WHEN VALID

 If it was acceptable to both parties and did not violate any law, it is valid and binding on them.
 10-year suspension of CBA valid – nothing in the LC prohibits the parties from waiving or suspending the
mandatory timetables and agreeing on the remedies to enforce the same. It is the union’s exercise of its right to
collective bargaining. The right to collective bargaining, after all, includes the right to suspend it.
 Representation limit for the EBR applies only when there is an extant CBA in full force and effect.
 Self-sacrificing moves of the union with the member’s concurrence is valid.
 Art. 100 (nondiminution of benefits) does not prohibit a union from offering and agreeing to reduce wages and
benefits of the employees if the diminution is decided bilaterally with the union, not unilaterally by the
management.

NO-INJUNCTION POLICY

 Labor disputes are generally not subject to injunction.

 If there is a dispute, responsibility to resolve it devolves primarily upon the parties.
 Injunction is valid when it was issued not against the strike or picketing itself but against the acts of violence and
intimidation committed against officials of the employer and non-striking employees.
 Exception to no-injunction policy – regular courts may issue injunction to protect the interest of neutral
employers in common situs picketing.

WORKERS PARTICIPATORY RIGHT

 Constitutional Provision – “TO PARTICIPATE IN POLICY AND DECISION-MAKING PROCESSES AFFECTING THEIR
INTERESTS”
 Refers to participation in grievance procedures, voluntary modes of settling disputes, and collective
bargaining.
 It does not refer to formulation of corporate programs or policies.
 Three levels of employee participation:
o Corporate level – strategic policies, marketing policies, disposition of profits and the like.
o Department level – administrative decisions
o Shop-floor level – operating decisions
 The focus of participation pertains to the rights and benefits of the workers.
 Ees may demand participation in the company’s formulation of code of discipline. Formulation of such code
affects the employees’ rights.
 Two kinds of management prerogatives:
o Regarding business operations (Ees has no right to participate)
 o Those which affect the employees rights (Ees may demand participation) – management should see to it
that Ees are at least properly informed of its decisions or modes of action.
 Participatory rights does not grant management control
 Labor Management Council (LMC):
o deals with the employer on matters affecting the employees’ rights, benefits and welfare.
o Can exist where there is no union or co-exist with a union.
o One thing it cannot and must not do is to replace a union
o Can represent employees across the enterprise
o Present grievances regardless of the grievant’s rank
o Proffer proposals unhindered by formalities

INDIVIDUAL GRIEVANCE

 By joining a union, an employee does not lose his voice.

 Individual ee or any group of ees has the right to directly present grievances to their employers at any time.
 Ees can choose to handle personally his defense, unassisted by any representative.
 Such right cannot be taken away even by union’s constitution and by-laws.

COLLECTIVE BARGAINING; COLLECTIVE BARGAINING UNIT

 3 devices to advance cause of industrial peace and promote employment conditions:

o Airing grievance even by individual ee directly to the employer at any time;
o Participation in policy and decision-making by ee, whether unionized or not;
o Collective bargaining with employer by unionized ees.
 CBU – group of employees sharing mutual interest within a given employer unit, comprised of all or less than all
of the entire body of employees in the employer unit or specific occupational or geographical grouping within
such employer unit.
 Bargaining group or unit is appropriate if its members share substantially common concerns and interest.
 Community of interest factors:
o Similarity in: the scale and manner of determining earnings;
o employment benefits, hours of work and other terms and conditions of employment;
o kinds of work performed;
o qualifications, skills and training;
o frequency of contact or interchange;
o geographic proximity;
o continuity or integration of production process;
o common supervision and determination of labor-relations policy;
o history of collective bargaining;
o desires of the affected employees;
o extent of union organization.
 Inappropriate mixture of bargaining unit is not a ground to dismiss the petition for CE. The proper order should
be to hold two separate CE for each of the two CBU.
 Globe doctrine - in determining the proper bargaining unit, the express will or desire of the employees shall be
considered, they should be allowed to determine for themselves what union to join or form. The best way is
through a referendum.
 Single or “Employer Unit” is preferred. This means one employer enterprise constitutes only one bargaining unit.
The more solid the employees are, the stronger is their bargaining capacity.
Exception: where employer unit has to give way to the other units like the craft unit, plant unit, or a subdivision
thereof.
 Two corporations cannot be treated as a single bargaining unit even if their businesses are related.
 Subsidiaries and Spun-off Corporations may constitute separate bargaining units.
 Four-factor analysis – determines whether two or more employers constitute a single employer:
o Interrelations of operation;
o Centralized control of labor relations (single most critical factor);
o Common management; and
o Common ownership.
 Distinguishing CBU from union is important because:
o In CE, the voters are the whole bargaining unit, whether union or nonunion members;
o In CBA ratification, voters are the whole bargaining unit;
 o In Strike Voting, voters are only the members of the union.

DETERMINING THE BARGANING UNION: OVERVIEW OF METHODS

 To bargain with employer – CBU can be represented by one and only one union (must be an LLO duly
designated or selected by the Ees in the CBU and certified by DOLE).
 Organized establishment – there exist a recognized or certified EBR/SEBA.
 Unorganized establishment – no union has yet to be duly recognized or certified as EBR/SEBA.
 Three methods to determine the bargaining union:
o SEBA certification;
o Certification Election (CE) with or without run-off; and
o Consent election.
 SEBA Certification – process where a union requests the DOLE regional director to recognize and certify the
union as the SEBA of the bargaining it purports to represent to negotiate a CBA with the employer. Requisite
are:
o Bargaining unit is ununionized;
o Requesting union is the only union in that bargaining unit;
o CBU majority are members of the requesting union.
 Certification Election (CE) – process of determining through secret ballot the SEBA of the employees in an
appropriate bargaining unit, for the purpose of collective bargaining or negotiation.
o Certification proceedings are not a litigation but an investigation of non-adversarial and fact-finding
character.
o It is not bound by technical rules of evidence.
o The law does not contemplate the holding of CE unless preliminary inquiry shows a reasonable doubt as
to which contending unions represents a majority.
o Involves only two issues:
 Proper composition and constituency of the bargaining unit; and
 Veracity of majority membership claims of competing unions as to identify the one union that
will serve as the bargaining representative of the entire bargaining unit.
o Certification Election differentiated from Union Election:
 Union Election – held pursuant to the union’s constitution and by-laws, and the right to vote in it
is enjoyed only by union member. The object is to elect officers of the union. Governed by
union’s CBL. Winners become officers and representatives of the union only.
 Certification Election – is the process, ordered and supervised by DOLE, of determining, through
secret ballot, whether or not a majority of the employees wish to be represented by a labor
union and, if so, by which union.
In CE, all employees whether union members or not, who belong to the bargaining unit, can
vote. Held according to the LC and its IRR. Winner is an entity, which becomes the
representative of the whole bargaining unit, which includes even the members of the defeated
union.
o Request or petition to hold CE may be filed by a registered union or by an employer.
o Any LLO, including national union or federation that has issued a charter certificate may file a petition
in behalf of its local/chapter.
o Employer is a by-stander in the election process.
o When employer files a PCE, the holding of the CE becomes mandatory.
o In organized establishment, if PCE was filed (by defeated union) the incumbent becomes a necessary
party, a forced intervenor. But even so, it does not thereby lose its representative status; it remains the
SEBA until replaced by another (equity of the incumbent)
o Other unions which are interested in joining a CE may file a motion for intervention.
o Whether petitioner or intervenor, the union has to be an LLO.
o When to file the PCE:
 If no registered CBA (Pre-CBA) – anytime except within 12 months of a previous election, if any.
 If bargaining unit has a CBA (Post-CBA) – only within the freedom period (60 days of the fifth
year of the CBA)
o Where to file the PCE:
 It shall be filed with the Regional Office which issued the petitioning union’s certificate of
registration or certificate of creation of chartered local. It shall be heard and resolved by the
Med-Arbiter.
o Forms and Contents of PCE
  Shall be in writing, verified under oath by the President.
 If federation/national union files – shall be verified under oath by its President of duly
authorized representative
 If employer – shall be verified under oath by the owner, president or any corporate officer
authorized by the BOD
 Petition should state where appropriate:
 That the bargaining unit is unorganized or no registered CBA ;
 If there exists a CBA, that the petition is filed within the freedom period of such
agreement;
 Also, in establishment with CBA, signature of at least 25% of the employees in the
bargaining unit shall be attached. This 25% support is not required for a pre-CBA petition
for CE
 If another union has been previously certified, that the petition is filed outside the 12-
month bar rule and no appeal is pending thereon.
o Action on the petition:
 Preliminary Conference –
 to be held within 10 days from the receipt of petition by Med-Arbiter;
 service of petition and notice of PC shall be made within 3 days from receipt of petition
by Med-Arbiter;
 copy of petition and notice shall be posted within the same 3 day period in at least two
conspicuous places in the establishment
 if at PC the unions agree to hold a consent election, the PCE will no longer be heard
 Hearings and Pleadings –
 If unions fail to agree to a consent election, Med-Arb may conduct as many hearings as
he may deem necessary but no to exceed 15 days from the date of the scheduled PC.
After that time, petition shall be considered submitted for decision.
 Within the same 15-day period, contending unions may file such pleadings as they may
deem necessary. Extensions of time shall not be entertained.
 Failure of the party to appear shall be deemed a waiver of its right to be heard.
 Within 10 days from the date of last hearing, Med-Arb shall issue a formal order denying
or granting the petition. In organized est. the order granting the petition can only be
issued after the lapse of the freedom period (if there is CBA)
 In unorganized establishment, once a PCE is filed by an LLO, Med-Arb shall automatically
order the conduct of a CE.
 Denial; Eight Grounds:
 Non-appearance – PCE may be denied because of non-appearance of the petitioner for
two consecutive scheduled conferences despite notice;
 Illegitimacy or Unregistered Union – PCE may be denied because the petitioning union
is not listed in DOLE’s registry of LLO or its registration certificate has been cancelled
with finality.
o Mere filing of petition to cancel registration does not dismiss the filing of PCE
o D.O. No. 40-03 – a PCE may continue to be heard unless the petitioner’s legal
personality has been revoked or cancelled with finality.
 Illegitimacy or No Charter – local/chapter or national union/federation fails to submit a
duly issued charter certificate upon filing of the PCE.
 Absence of Employment Relationship – absence of employer-employee relationship
between the members of the petitioning union and their supposed employer.
 Election bar (12-month bar/certification bar year) – petition was filed within one year
from the date of recording of a valid certification, consent or run-off election where no
appeal on the election results is pending
o GR: If a union has won, it must start negotiating for a CBA. If it fails to do so, the
union(s) defeated can petition again for CE after 12 months from last election as
to replace the unproductive EBR/SEBA, which, perhaps, is cavorting with the
employer.
o Exception: if circumstances show that the cause of not having a CBA concluded
was not the union’s fault, CE should not be authorized. This situation takes the
nature of a “deadlock bar”.
 o 12-month prohibition presupposes an actual conduct of election (ballots were
cast and there was a counting of votes)
o Failure of election/Invalid election = 12-month bar rule is inapplicable.
o Also not applicable to a unit clarification petition.
 Election bar (Negotiation or Deadlock bar) – a duly certified union has commenced and
sustained negotiations with the employer or where there exists a bargaining deadlock
which was submitted to conciliation or arbitration or has become the subject of a valid
notice of strike or lockout
o Negotiation bar – duly certified union has commenced negotiation with the
employer and negotiation is still on-going.
o Deadlock bar – if such negotiation is caught in a deadlock.
o Not applicable to artificial or false deadlock.
o Indicators that deadlock is genuine:
 Submission to 3rd party conciliator or arbitrator;
 Deadlock is the subject of a valid notice of strike or lockout.
o Artificial deadlock – a deadlock prearranged or preserved by collusion of the
employer and the majority union
o For bargaining deadlock to bar a PCE, such deadlock must have been submitted
to conciliation or arbitration, or must have been subject of a valid strike or
lockout notice before – not after – the filing of the PCE.
 Election bar (Existing CBA/Contract bar) – petition is filed outside the freedom period
o Art 238 does not allow the filing of PCE during the life of a duly registered CBA
except within the last 60 days of the fifth year of the CBA (freedom period)
o To bar PCE, it is no longer necessary that the CBA be certified: it is enough that it
is registered
o Freedom period – time when the unions are legally allowed to challenge openly
and formally the status of a union as the EBR/SEBA. Also, during this time,
switching of allegiance among union members or among affiliates or chapters
may be done without risking a charge of disloyalty.
o Notice period – proper time to propose modifications to the existing CBA/
renegotiation of an expiring CBA. (economic provisions)
o Freedom period – last 60 days of the CBA’s fifth year of the representational
aspect.
o Employer is a party in the notice period but not in the freedom period.
o Extended CBA under deadlock – Contract bar rule applies
o No PCE may be filed before the onset of the freedom period nor after such
period. Old CBA is extended until a new one is signed.
o Contract bar rule is inapplicable to:
 Defective CBA
 Referendum to Register an Independent Union
 CBA signed Before or Within Freedom Period
 CBA shall be recognized and given effect on a temporary basis,
subject to the result of the CE.
 Signing a CBA despite forthcoming election – temporary nature,
winning union had the option to either continue the existing
CBA or negotiate a new one.
 GR: CBA may be renegotiated before, during, or after the 60 day
freedom period. Exception: when within the 60 day freedom
period, Med-Arb ordered a suspension of the renegotiation until
representation proceedings finally end.
o Requisites of Contract Bar
 CBA must contain substantial terms and conditions of employment
sufficient to stabilize the bargaining relationship;
 Must be signed by the parties;
 Effective date and expiration date must be readily discernable on the
face of the contract
o Election bar (Lack of support) – in an establishment with a CBA, PCE is not
supported by at least 25% of the bargaining unit.
  In deciding whether the 25% support is required or not, the law
considers the CBU involved, not the whole enterprise.
 Only applied in an organized establishment.
 Effect of withdrawal of signatories:
 Before the filing of PCE: considered voluntary and does affect
the propriety of the petition;
 After the filing of PCE: considered involuntary and does not
cause the dismissal of the petition.
 Prohibited grounds for the Denial/Suspension of the PCE
 Commingling
o Inclusion of employees outside the bargaining unit shall not be a ground for the
denial of PCE. Said employees are automatically deemed remove from the list of
membership of said unions.
 Validity of Registration
o All issues in the validity of a union’s legal representation as well as validity of
CBAs shall be heard and resolved in an independent petition for cancellation.
 Issues pertaining to the existence of Er-Ee relationship
o Those issues shall be resolved in the order or decision granting or denying the
PCE, hence, it does not stall the PCE.
 Er a Bystander; Cannot Oppose PCE
 Er can only be allowed to protest against irregularities committed in the conduct of CE.
 Er shall not harass, intimidate, threat or coerce employees before, during and after
elections.
 Approval
 Med-Arb shall release his order/decision granting or denying the petition personally to
the parties within 10 days from the last hearing, copy furnished the employer.
 First occasion of Appeal: Order granting or denying PCE
 Two occasions of appeal:
o Med-Arbiter decides the PCE;
o Med-Arbiter certifies the election results.
 Only order that cannot be appealed – order granting the conduct of CE in an
unorganized establishment. Reason: law wants to unionize the ununionized
 Other orders are always appealable.
 Conducting of CE
 Pre-election Conference
o Raffle the Case – within 24 hrs. from receipt of notice, RD shall raffle the case to
an election officer.
o Pre-election conference shall be completed within 30 days from the date of first
hearing.
 Voters
o All who are members of the appropriate bargaining unit three (3) months prior
to the filing of PCE
o Employee who has been dismissed but has contested the legality of the
dismissal in a forum of appropriate jurisdiction is a qualified voter, except when
dismissal was declared valid in a final judgement.
o List of employees submitted to the SSS may be used as basis to comprise the list
of voters for the CE.
o Probationary employees are included, provided he or she is employed 3 months
prior to the filing of petition.
o Otherwise stated, all bona fide employees in the bargaining unit, whether they
are members of a labor organization or not.
 Voting
 Union which obtains the majority of the valid votes shall be the EBR/SEBA under any of
the following conditions:
o No protest was filed within the 5-day period for perfection of protest;
o No challenge or eligibility issue was raised.
 Failure of Election; Motion for another CE
  Failure of election – number of votes casted is less than the majority number of eligible
voters
o Effect: shall not bar the filing of a motion for immediate holding of another CE
o Action on the motion: within 24 hrs. from receipt, Election Officer shall
immediately schedule the conduct of another CE within 15 days from the
receipt of the motion and cause the posting at least 10 days prior to the
scheduled CE
 Run-off Election
 When election provides for 3 or more choices results in none of the contending unions
receiving a majority of the valid votes cast, and there is no objection or challenges, the
Election Officer shall motu proprio conduct a run-off election within 10 days from the
close of the election proceedings between labor unions receiving the two highest
number of votes; provided that the total number of votes for all contending unions is at
least 50% of votes cast.
 No-union shall not be a choice in the run-off election.
 Notice – at least 5 days before the actual date of run-off election.
 Same voters
 To summarize, conditions to run-off elections are:
o Valid election took place;
o Election presented at least 3 choices;
o Not one of the unions obtained majority of the valid votes;
o Total number of votes for all the unions is at least 50%;
o No unresolved challenge of voter or election protest.
o Consent Election
 It is voluntarily agreed upon by the parties, with or without the intervention of the Department.
 It can be agreed in the pre-conference of the PCE or voluntarily filed by the parties themselves
without PCE
 When consent election is agreed, the result constitutes a bar to holding a certification election
for one year from holding such consent election.
 Where appeal is filed to the consent election, the running of the one-year period shall be
suspended until the decision on the appeal become final and executory.
 STRIKES AND LOCKOUTS

 RIGHT TO ENGAGE IN CONCERTED ACTIVITIES

o Concerted activity is one undertaken by two or more Ee, or by one on behalf of others.
 NATURE OF STRIKE
o Strike – any temporary stoppage of work by the concerted action of employees as a result of an
industrial or labor dispute.
o Two causes of a valid strike:
 Collective bargaining deadlock; or
 ULP act of the employer.
o Characteristics:
 There must be an established relationship;
 Relationship must be one of Er-Ee;
 Existence of a dispute and utilization by labor of the weapon of concerted refusal to work as
means of persuading or coercing the compliance to their demands;
 Employment relation is deemed to continue albeit the state of belligerent suspension;
 There is work stoppage done through concerted action of the Ee;
 Striking group is an LLO and, in a bargaining deadlock, is the Ees’ SEBA/EBR
o Objective: to enforce their demands
o Lockout – temporary refusal of any employer to furnish work as a result of an industrial or labor dispute.
 GROUNDS FOR STRIKE/LOCKOUT
o Bargaining deadlocks
o Unfair Labor Practices
o No strike/lockout may be declared in cases where:
 Violations of the CBA, except flagrant violation/malicious refusal to comply with its economic
provisions (considered as ULP);
 Inter-union and intra-union disputes;
 Without filing first, a notice of strike/lockout
 Without the necessary strike/lockout votes
 Assumption of the Secretary
 After certification/submission to compulsory/voluntary arbitration
o Strike/Lockout is proper when the following requisites are met:
 Notice of intention to declare strike/lockout with the DOLE;
 At least 30/15 days has elapsed since the filing of notice;
 Impasse has resulted in negotiations (in bargaining deadlocks);
 Strike/lockouts is not discriminatory;
 KINDS OF STRIKE
o Extent
 General strike – extends over a whole community, province or country.
 Local strike – undertaken by workers in a particular enterprise, locality or occupation
o Nature of the act
 Strike proper
 Sit-down strike – combination of strike plus refusal of the strikers to leave the plant and
machines, and refusal to permit the latter to be operated.
 Partial or quickie strike – intermittent, unannounced work stoppage, including slowdowns,
unauthorized extension of rest periods and walkouts for portions of a shift.
 Wildcat strike – work stoppage that violates labor contracts and is not authorized by the union.
o Degree if Ee Interest
 Primary strike – declared by Ees who have direct and immediate interest
 Secondary strike – when Er persists in dealing with a third person against whom they have a
grievance
  Sympathetic strike – stoppage of work to make common cause with other strikers in other
establishment or companies, without the existence of any labor dispute between the striking
Ees and their own Er.
o Purpose
 Economic strike – intended to force wage and other concessions
 ULP strike – called against the ULP of the Er

 PROTECTION OF STRIKE
o Not subject to injunction or restraining order;
o Ees may not be discriminated against;
o Strike-breakers (person who obstructs, impeded, or interferes with by force, violence, coercion, threats,
or intimidation any peaceful picketing by Ees) are prohibited;
o Participation does not sever the employment relationship.
o Role of PNP – maintenance of peace and order, enforcement of law and legal orders and performance of
specific functions as may be provided by law.
 SIX FACTORS AFFECTING LEGALITY
o Illegal strike is one which:
 Contrary to a specific prohibition of law;
 Violates a specific requirement of law;
 Procedural requisites (mandatory):
o Filing of notice to strike to NCMB;
o Observance of cooling-off period (30 days for BD, 15 for ULP);
o Taking a strike vote;
o Observance of the 7-day strike-vote-report period (not included in the cooling-
off period).
 Strike on installment – willful reduction in the rate of work by concerted action of
workers for the purpose of restricting the output of the employer. (illicit and
unjustifiable)
 Union busting (no need of cooling-off period but notice of strike, strike vote and 7-day
strike vote report still mandatory) exist when:
o Union officers are being dismissed;
o Those officers are the ones duly elected in accordance with the union’s CBL;and
o Existence of the union is threatened.
 Strike during arbitration, preventive mediation, grievance procedure bypassed – illegal
 Declared for an unlawful purpose;
 Only strikeable grounds:
o Collective bargaining deadlock;
o ULP acts by Er.
 Non-strikeable issues:
o Inter/intra-union disputes;
o Violation of labor standards, except Art. 258 c,f,i;
o Wage distortion;
o Cases pending with DOLE, BLR, NLRC, NWPC, office of the Sec., VA, CA, SC;
o Execution and enforcement of final orders;
o Any issue covered by no-strike commitment.
 Conversion doctrine – ground of strike starts as economic strike, but as it progresses,
become ULP or vice-versa.
 Legality of strike is not dependent upon the ability of Er to grant demands
 Two test in determining existence of ULP:
o Objectively – found to be actually committed;
o Subjectively – union believed in good faith that such acts by Er are ULP and such
belief induced the staging of a strike.
 Good faith strike requires rational basis, it does not tolerate groundless strike.
 Acts calculated to force disruption of operations, considered as strike.
 Employs unlawful means;
 Strike has to be pursued within the bounds of law.
 No person engaged in picketing shall:
 o Commit any act of violence, coercion or intimidation;
o Obstruct free ingress to or egress from the Er’s premises;
o Obstruct public thoroughfares.
 Even if purpose of strike is valid, it may be illegal where the means employed are illegal.
 Violence on both sides – it cannot be a ground for declaring the strike as illegal.
 Responsibility for the use of force - Individual

 Declared in violation of an existing injunction; or

 Where labor dispute is causing or likely to cause a strike affecting national interest,
SOLE may assume jurisdiction or certify the dispute to NLRC for compulsory arbitration.
 Such assumption or certification has the effect of automatic injunction.
 If strike/lockout has already taken place at the time of assumption/certification,
striking/lockout Ees shall immediately return to work and Er shall immediately resume
operations and readmit all workers under the same terms and conditions prevailing
before the strike/lockout.
 List of national interest industries:
o Hospital sector;
o Electric power industry;
o Water supply services;
o Air traffic control;
o Other industries recommended by NTIPC
o Banking industries (classified by law [GBL])
 Prior notice of assumption is not required.
 Even with bargaining deadlocks, assumption is justified.
 Certification to NLRC – notice is required
 A strike undertaken despite issuance of SOLE of an assumption or certification order
becomes prohibited activity and, thus, illegal. The union officers and members who
participated in the said illegal act are, as a result, deemed to have lost their employment
status, provided that due process is observed.
 Authority to assume jurisdiction include and extend to all questions and controversies
arising therefrom, including cases over which the LA has exclusive jurisdiction.
 Contrary to existing agreement.
 CBA that contains a no strike/no lockout clause.
 No strike clause in CBA is applicable only to economic strikes. Strikes founded on ULP of
Er cannot be considered as violation of the no-strike clause.
 Substitutionary doctrine cannot be invoked in a no-strike clause, in short, unions that
are not party to the CBA are not bound by such clause.
 PICKETING
o Involves the presence of striking workers who pace back and forth before the place of business of an
employer, in hope of being able to persuade peacefully other workers not to work in the establishment,
and customers not to do business there.
o As Phase of Freedom of Speech
 Right to picket as means of communicating the facts of labor dispute is a phase of freedom of
speech.
 If peacefully carried out, it cannot be curtailed even in the absence of Er-Ee relationship.
 State cannot outlaw picketing merely because there is no strike. (constitutional right of free
speech)
 Moving picket – picket line, keeps in constant motion.
 Picketing is nuisance if and considered unlawful if:
 Obstruction to the free use of property;
 Obstruction to free passage or use of a street.
 Picketing labor union has no right to prevent employees of another Company from getting in
and out of its rented premises.
 Picketing must be for a lawful purpose and conducted through lawful means (there should be no
violence, intimidation, threats, coercion or force).
 Untruthful picketing is unlawful and enjoinable even though its purpose is valid.
 Discourteous and impolite language by picketers does not give rise to a cause of action for libel
and damages.
 o Other Concerted Activities:
 Collective letter;
 Publicity;
 Placards and banners;
 Wearing of armbands;
 Speeches, Musica and Broadcasts
o BOYCOTT
 A combination of harm to one person by coercing others to harm him.
 It may be lawful or unlawful depending on the means and methods employed and the ends to be
accomplished.
 Overtime boycott and work slowdown may amount to illegal strike
o SLOWDOWN
 A method by which one’s employees, without seeking complete stoppage of work, retard
production and distribution in an effort to compel compliance by the employer with the labor
demands made upon him.
 Also called as strike on installment plan.
 Also defined as the willful reduction of the rate of work by concerted action of workers to
restrict the output of an employer, in relation to a labor dispute.
 Held by the Court to be inherently illicit and unjustifiable.
 STRIKERS’ RETENTION OF EMPLOYMENT
o Strikers remain as employees while they are on strike.
o Effects of employment are merely suspended during strike – workers do not work and do not get paid.
 STRIKERS’ LOSS OF EMPLOYMENT
o Committing illegal acts during a strike is civilly or criminally liable no matter whether the strike is legal or
not.
o Commission of illegal acts is enough reason to terminate employment.
o Participation in strike:
 If legal strike, union officer and member are not dismissible.
 If illegal strike, union officer is dismissible but union member is not.
o Commission of illegal act in a strike:
 Both in legal and illegal strike, the union officer and member are both dismissible.
o Illegal acts:
 Violation of Art 279(e) of the Labor code (act of violence, coercion or intimidation or obstruct
the free ingress to or egress from the employer’s premises or obstruct thoroughfares)
 Commission of crimes and other unlawful acts in carrying out the strike;
 Violation of any order, prohibition, or injunction issued by the DOLE Secretary or NLRC in
connection with the assumption of jurisdiction/certification Order.
o Shop stewards – one appointed by the union in a shop, department, or plant to serve as representative
of the union, charged with negotiating and adjustment of grievances of employees with the supervisor
of the employer. They are deemed as officers of the union.
o Officer must be individually identified and the extent or nature of his participation proven with certainty
in order to justify dismissal.
o Declaration of Illegality of Strike is not a pre-requisite to dismissal of illegal strikers committing illegal
acts.
o Good faith strike – strike may be justified by belief in good faith that the Er was committing unfair labor
practice at the time the strikers went on a strike. – but reinstatement of the strikers must be without
backpay.
o Forfeiture of reinstatement – a striker who failed to report for work when he had the opportunity to do
so waived thereby his right to reinstatment.
 DISCRIMINATION IN READMISSION OF STRIKERS
o Discrimination exists where records shows that the union activity of the rehired strikers has been less
prominent than that of the strikers who were denied reinstatement. Er committed ULP.
 REINSTATEMENT MAY RENDER MOOT THE QUESTION OF ILLEGALITY OF STRIKE
 GENERALLY, NO BACKWAGES IN STRIKE
o A fair day’s wage for a fair day’s labor doctrine.
o Two types of employees involved in ULP strike:
 Discriminatorily dismissed;
 Voluntarily went on strike.
  Both are entitled to reinstatement, except when they committed unlawful conduct or
violence;
 As to backpay, DD is entitled to backpay and in contrast those who struck voluntarily is
not entitle to backpay.
o Exception to no work no pay doctrine:
 Involuntary strikers were illegally locked out
o Two types of illegal dismissal:
 Substantively illegal dismissal – no valid/legal cause (entitled to reinstatement, full backwages,
seniority rights and other benefits)
 Procedurally illegal dismissal – non observance of proper procedure (not entitled)
o If reinstatement is impossible, separation pay may be awarded.
 REPLACEMENTS DURING STRIKE
o Did not gain permanent right to the position they held.
o Employer must discharge the replacement employee, if necessary, to restore the striking/locked-out
worker
 CIVIL LIABILITIES OF LABOR ORGANIZATIONS
o If strike is lawful and legal – no liability arises (damnum absque injuria)
o If done through unlawful means and purpose – liable to damages
 IN PARI DELICTO
o If employer committed illegal lockout and Ees staged an illegal strike, the Court will restore their
respective positions before the strike. The dismissed strikers will be ordered reinstated without
backwages.
 No union members or organizers may be arrested or detained for union activities without prior consultation
with the SOLE.
o Exception: grounds of national security, public peace or commission of a crime.
o Criminal cases should be suspended until completion of the compulsory arbitration.