- Can the employer be the petitioner?

Yes, but only if 1) it

LABOR REVIEW was requested to collectively bargain and 2) there is no
ATTY. MARLON MANUEL SEBA.
FEBRUARY 23 2021 - If this happens, does this mean the employer is now a
party? No. Art. 271 provides that IN ALL CASES,
FILING OF THE PETITION FOR CE whether PCE is led by employer or LLO, the employer
● Who is the petitioner? shall NOT be considered a party thereto:
● Where is the petition filed? - “In all cases, whether the petition for
● When can it be filed? certification election is filed by an employer or a
● What should it contain, what are the requirements? legitimate labor organization, the employer
shall not be considered a party thereto with a
So you already filed the CE. What's next? concomitant right to oppose a petition for
certification election.”
Who are the parties? - So you have a unique situation where the petitioner itself
1) Incumbent SEBA = forced intervenor. is not considered a party.
- What does ‘forced’ mean? Incumbent SEBA will be one - Why is that the rule? Do you remember any similar action
of the choices in the election. It doesn’t have to file any in REM? Interpleader. The employer is not a real party, it
motion, certification, whatsoever. It is compulsory. has no interest. It’s only interest is to start the case,
- Does it have to do anything? No. nothing else. It is declared by law not to consider it as a
- Why is it forced? Because as the incumbent SEBA, the party. That's how strict the bystander rule is.
objective of the challenger is to kick it out and replace it. - Is the employer allowed to file anything? Under the
So you cannot have a PCE without the incumbent SEBA Rules, it can file a manifestation of facts to help the Med-
being a party. Arbiter ascertain the existence of grounds for denial of the
2) Any other legitimate labor union other than the incumbent SEBA, petition.
operating within the bargaining unit, MAY intervene. (D.O. 40 - But the law says that the employer shall only be a by-
Rule 8, Sec. 9). stander. This is another case where the DOLE creates
loopholes in their rules. It’s an inconsistency. In effect,
How can intervention be done?
the Rules is allowing the employer to ‘oppose’ the
- Motion to intervene (D.O. 40 Rule 8, Sec. 9) petition via ‘manifestation’ since what it is allowed to
- it’s the same form and contents as the PCE except that manifest will ultimately be grounds for the denial of the
you file a motion to intervene instead because somebody petition. It’s a circumvention of the law.
else already filed one. So you just intervene in order to be
one of the parties. Who will oppose? Incumbent SEBA.
Can employer join the proceedings? Can it file an opposition based on the issuance of the registration? No.
3) Employer (can be a mere bystander or the petitioner itself) It has to be directly attacked (via a petition for cancellation of the certificate
- Does the employer have standing? No. mere bystander. registration) and not subject to collateral attack (i.e. opposition to PCE).
its participation is only to submit list of employees when
med-arbiter ruled in favor of petitioner
Can the SEBA invoke the direct attack as a prejudicial question in the disturb the administration of duly registered existing
PCE proceedings? No. It is a separate action, it will not suspend the collective bargaining agreements affecting the parties
PCE proceedings. except under Art. 253, 253-A, and 256 of this Code (Art.
238 of the Labor Code)
● What are not allowed as grounds to oppose the petition;  When a CBA between the employer and a duly
- Opposition grounded on the legitimacy of the petitioning recognized or certified bargaining agent has been
union (collateral attack not allowed) registered in accordance with Article 231 of the Labor
- Instead, what the SEBA should do is file a separate Code.
petition for cancellation of the union’s registration  When such collective bargaining agreement is registered,
- So now, the SEBA has two cases. Can the SEBA invoke the petition may be filed only within sixty (60) days prior
the pendency of the petition for cancellation in the PCE to its expiry. (FREEDOM PERIOD) (D.O 40 Rule 8, Sec.
and say that it’s a prejudicial question? NO. RA 9481 23)
already corrected this. Previously, that was allowed by the f. Certification Election Bar
SC and the DOLE. But not anymore. - The filing of a petition within one (1) year from date of recording
of the voluntary recognition or within the same period from a valid
So now we have the parties: petitioner and SEBA. Say there’s another certification, consent or run-off election where no appeal on the results of
LLO that filed a motion to intervene. What happens next? the certification, consent or run-off election is pending. (D.O. 40 Rule 8,
- RD will raffle the case to the Med-Arbiter. Sec. 14)
- Med-Arbiter will then send a notice to the parties and the employer g. Consent Election Bar (WITH GOVERNMENT/DOLE
(albeit not a party just a notice) of the preliminary conference. INTERVENTION/INVOLVEMENT)
 Where a petition for certification election had been filed,
What are the grounds to oppose the petition? and upon the intercession of the Med-Arbiter, the parties
a. Petitioning union or national union/federation is not listed in the agree to hold a consent election, the results thereof shall
Department’s registry or legitimate labor unions or that its legal constitute a bar to the holding of a certification election
personality has been revoked or cancelled with finality in for one (1) year from the holding of such consent election.
accordance with Rule XIV of these Rules. (D.O. 40 Rule 8, Sec. (D.O 40 Rule 8, Sec. 23)
14)  Where no petition for certification election was filed but
b. Failure of a local chapter or national union to submit a duly issued the parties themselves agreed to hold a consent election
charter certificate upon filing of the petition for certification with the intercession of the Regional Office, the results
election. (D.O. 40 Rule 8, Sec. 14) thereof shall constitute a bar to another petition for
c. In an organized establishment, the failure to submit the 25% certification election. (D.O 40 Rule 8, Sec. 23)
signature requirement to support the filing of the petition for h. Deadlock Bar / Notice of Strike or Notice of Lockout Bar
certification election. (D.O. 40 Rule 8, Sec. 14)  When a bargaining deadlock to which an incumbent or
d. Absence of employer-employee relationship between all the certified bargaining agent is a party had been submitted to
members of the petitioning union and the establishment where the conciliation or arbitration or had become the subject of a
proposed bargaining unit is sought to be represented. (D.O. 40 valid notice of strike or lockout (D.O. 40 Rule 8, Sec. 3)
Rule 8, Sec. 14) i. Sustained Negotiations Bar (WITHIN 1 YEAR)
e. Contract Bar  When the duly certified union (SEBA) has commenced
 The Bureau shall not entertain any petition for and sustained negotiations in good faith with the
certification election or any other action which may employer in accordance with Article 250 of the Labor
 Code within the one (1) year period referred to in the b. if there exists a duly registered collective bargaining agreement,
immediately preceding paragraph. (D.O. 40 Rule 8, Sec. that the petition is filed within the sixty-day freedom period of such
3) agreement; or
 If you have started negotiations within the first year and c. if another union had been certified in a valid certification, consent
you have continued with management even BEYOND or run-off election, that the petition is filed outside the one-year period from
FIRST YEAR WITHOUT A CBA AND WITHOUT A date of recording of such SEBA certification or conduct of certification or
DEADLOCK you are protected. Remember: GOOD run-off election and no appeal is pending thereon.
FAITH (g) in an organized establishment, the signature of at least twenty-five
percent (25%) of all employees in the appropriate bargaining unit shall be
What are not grounds to oppose the petition? attached to the petition at the time of its filing; and
D.O. 40 Rule 8, Sec. 16 (h) other relevant facts.
a. The following shall be heard and resolved by the Regional Director
in an independent petition for cancellation of its registration. All
issues pertaining to the: PRELIMINARY CONFERENCE
 Validity of the petitioning union’s certificate of
registration or its legal personality as a labor organization What is the purpose of the preliminary conference?
 Validity of registration It is similar to pre-trial. Things to be discussed to outline the process:
 Execution of CBAs (Rule VIII; Sec. 10)
(a) the bargaining unit to be represented;
The legal personality is not lost by the mere initiation of the petition for (b) contending labor unions;
cancellation of its registration until you have a final resolution. (c) possibility of a consent election;
(d) existence of any of the bars to certification election under Section 3 of
PCE CONTENTS: this Rule; and
(a) The name of petitioner, its address, and affiliation if appropriate, (e) such other matters as may be relevant for the final disposition of the
the date and number of its certificate of registration. If the petition is filed case.
by a federation or national union, the national president or his/her duly
authorized representative shall certify under oath as to the existence of its ● What is the purpose?
local/chapter in the establishment and attaching thereto the charter - To determine the appropriate bargaining unit, who are the parties,
certificate or a certified true copy thereof. If the petition is filed by a determine the possibility of a consent election.
local/chapter it shall attach its charter certificate or a certified true copy
thereof; Consent Elections
(b) the name, address and nature of employer’s business; - It is an election agreed upon by the parties, with or without the
(c) the description of the bargaining unit; intervention of the DOLE.
(d) the approximate number of employees in the bargaining unit;
(e) the names and addresses of other legitimate labor unions in the M: Ok, so in the preliminary conference, the SEBA said they will not
bargaining unit; oppose the petition. What happens next? Med-arbiter will refer the case to
(f) a statement indicating any of the following circumstances: the election officer for pre-election proceedings.
a. that the bargaining unit is unorganized or that there is no registered - so the effect of a consent election is that there will be no
CBA covering the employees in the bargaining unit; more ‘decision’ on the petition. No more hearing on
grounds for denial since it was not raised.
 4. The duly certified union has commenced and sustained negotiation
● 2 types of Consent Elections with employers.
○ One done by the contending unions without the 5. Existing bargaining deadlock, strike, or lockout.
intervention of the DOLE 6. Petitioner did not appear for 2 consecutive conference before the
○ One done by the contending unions with intervention of med-Arbiter, despite notice.
the DOLE. 7. There is no EER relationship.

● What if the petitioner won? Will it be certified? What is the (Art. 272. Appeal from Certification Election Orders )
effect if the consent election was conducted by the DOLE? It’s Assuming Med-arbiter DENIES the petition, is it appealable?
as if there was a PCE. Without such intervention, it will not result It can be appealed to the Secretary of Labor =>
into a certification. So there’s no value in going for a consent Rule 65 with CA =>
election without DOLE intervention. It will just be a practice Rule 45 SC.
exercise. Whoever wins that cannot claim to be a SEBA; it will not
result into the certification bar rule. It has no legal effect or value If GRANTED, is it appealable?
whatsoever. It depends.
● Without intervention = consent election without legal ● If organized – SOLE; SEBA is the oppositor; the forced
significance. intervenor, hence, someone will appeal
● If unorganized – it cannot be appealed; there is no forced
intervenor; nobody is aggrieved; no one will have the standing to
DECISION appeal; therefore, proceed with PCE.
Who decides? What decision can be made?
The Med-arbiter.
PRE-ELECTION CONFERENCE
When is the Med-arbiter required to decide the case? ● Who presides? Election officer.
During the preliminary conference, if the contending unions fail to agree to ● We are assuming that
a consent election, the Med-Arbiter will have to decide if there are grounds ○ Med-Arbiter has granted the petition or
to deny the petition or not. Rule VIII Sec. 14. ○ On appeal, the Secretary reversed the denial of Med
Arbiter or
Grounds for denial (D.O. 40, Rule 8, Section 14. Denial of the Petition. ○ There is an agreement between the Unions.
Grounds.) ● A preliminary conference is DIFFERENT from a pre-election
1. Not listed in the department register of LLOs or registration conference.
certificate is cancelled with finality; Local Chapter fails to submit ● This is at the end of the case before the conduct of the actual
charter certificate. election. This is equivalent already to an execution stage.
2. Filing before or after freedom period. ● What happens during this stage?
a. Why? Contract Bar Rule: The existence of the duly- - In this stage, employer shall be required to submit
registered CBA bars it (5-yr representation period). The certified list of employees or where necessary the payrolls
prohibition pertains to the 5-year period EXCEPT during covering members of the bargaining unit.
the freedom period. - Why? This is where they finalize the list of eligible
3. Filed a petition within 1 year from the conduct of a certification, voters. It is still subject to contentions of Unions. At this
consent, or run-off election and there is no appeal.
 stage, the Unions determine who will be part of the list of Bars
eligible voters based on Sec. 6 or Rule IX. Before we go to the election day itself, let’s go first to the THE BAAAARS
- There is a CUT-OFF DATE: You have to be a member - Protection mechanisms in favor of the incumbent SEBA
of the bargaining unit 3 months prior to filing of PCE - Bars are protection for the SEBA against a challenge by another
(Sec. 6, Rule 9 DO 40-I-15). This does not mean, union.
however, that he will not be covered by the CBA. Non- - Imagine it as sequential, meaning happening in a particular order,
eligibility to vote does not equate to non-coverage of the one at a time.
CBA -
- Ratio: to avoid the possibility of the employer hiring
employees to pad the voter’s list. Prevents the employer 1. Certification Election Bar
from hiring employees to vote for the employer. - 1 year bar starts from the VALID conduct of the CE, even when
- Example: Bargaining unit is that of REGULAR rank and there is no winning union.
file employees. But 3 months prior to the filing of a PCE, - The reason for this is we have just had an election, why do we
you are still not a REGULAR employee, then you will not conduct another.
be an eligible voter. Because you did not make it to the - Assuming we have a winner, that union would be certified as
cut-off date. SEBA and would negotiate for a CBA within a period of 1 year. It
will not be disturbed; it will be allowed to concentrate on the
What if the Unions disagree? negotiations of the CBA.
The election officer will merely take note of the contested voters. Their -
votes will be segregated - the contested voters can still vote however their - We are assuming that the SEBA is dealing with the employer
votes will not be counted yet. - this is a moratorium - even if there is no SEBA, there is still a 1
year bar
What if there are 10 challenged voters, what will happen? - Reason: Allows the SEBA to deal with the employer; in absence of
Election day they will be allowed to vote; their votes will be enclosed in a SEBA,
sealed envelope. 10 envelopes. One for each.
Note: Freedom Period only relevant as to FILING of PCE and NOT the
Why? CONDUCT of Certification Election itself.
If there is a decision to include their votes, they should be able to determine - As long as you have filed your PCE within the freedom period,
which votes are casted by whom. then you’re good. in all probability, the CE can happen AFTER the
freedom period.
Who will decide? - So it is not the CE itself that should happen within the freedom
The Med-Arbiter if the votes will be MATERIAL to the election. It is period, but the FILING of the PCE.
material if it might change or affect the result, if opened. You go back to the -
Med-Arbiter to determine eligibility.
2. Contract Bar
How do you know what votes will be counted? - When CBA is done, a 5-year period would exist except with regard
Since it was put in individual envelopes with the NAMES of the voters. to the freedom period.
Open only those to employees that are declared to be eligible as held by the - SEBA has to rush and come to an agreement
Med-Arbiter. Don’t even bother opening the others. - If the 1 year bar is ending, SEBA has two options:
- Option A: enter into CBA
 - Option B: hasten the process and have a deadlock; send a
notice of strike to the DOLE

3. Deadlock bar
- If no CBA after 1 year: UNION IS UNPROTECTED so the union
has the option of forcing a deadlock. Your protection would be
expiring so the option is to have a CBA or deadlock. Both of them
bars another challenge.
- Protects you until the deadlock is resolved
- Submitted to DOLE for reconciliation(?) or notice of strike.

4. Sustained negotiations bar/ Negotiations Bar

- it removes the sequential nature of the bars, because based on the
rules as long as SEBA “started” negotiations within 1st year and Query: How do we reconcile the substitutionary doctrine and the contract
sustained it in good faith, even if they had not reached an bar?
agreement or a deadlock, there will be a bar. - Let’s assume we have a 5 yr CBA, the freedom period is the time
to file the PCE. In the meantime, your CBA is about to expire, then
- as long as the SEBA started the negotiations within the first year.. your incumbent SEBA should negotiate for a new CBA. While the
and sustained negotiations in good faith, even if they have not incumbent SEBA is negotiating, the CE is taking place.
reached an agreement, there will be a bar. - So the incumbent SEBA is dislodged, then the new SEBA is not
- so again, the SEBA has either to have a cba or a deadlock. BUT if faced with the new CBA negotiated by the previous SEBA. The
you add a sustained negotiations bar, it changes everything because new SEBA can negotiate for the shortening of the term of that new
no one can file a PCE CBA.
- okay lang to on paper BUT on the other side, it prolongs - Principal-agent relationship.
negotiations
- Possible Evil: negotiations ad infinitum in order to prevent a union End of query.
from challenging the status of the SEBA. if Union and
Management continued negotiating in good faith, it may last for
several years. hence, no CBA may be agreed upon to protect the
bargaining unit. However, the incumbent SEBA is protected by
this Bar.
- What is the problem? well you don't have a CBA, so the SEBA
just only continues negotiating. theoretically, it can go on forever!
- so you have a situation where the SEBA is not producing a CBA
AND YET, you cannot kick out that SEBA
 MARCH 2, 2O21 - 90 does not meet majority

Query 1: Exercise 2:
The requirement for there to be a valid Certification Election to be
conducted - it is not the issuance of the Order certifying a particular Union. Total eligible voters: 200
You do not need to have a winner. As long as the election is valid, then it
will serve as a bar to another petition. Union A: 80
Union B: 30
If there are pending issues, you have to wait. You have to delay the 1-year Union C: 25
bar. assuming that there is a protest, or run off, you don't start the 1-year. No union: 10
You start counting the 1-year when there is already a final decision. Abstention: 10
Spoiled: 25 .
Again, what needs to happen within the 60 day period, is the filing of the 180
PCE. NOT THE ACTUAL CONDUCT OF THE ELECTION.
Legal consequence:
Query 2: 1. VALID ELECTION
when you segregate votes, each vote has one envelope? 2. UNION A WON (what if Union A got 78 votes only? then union
- 1 ballot = 1 envelope. A did not meet majority)
- why? because you need to determine which of the ballots belong to
whom. Exercise 3:
- remember: secret ballots
Total eligible voters: 200
End of queries. Union A: 75
Union B: 35
Exercise 1: Union C: 25
No union: 20
Total eligible voters: 200 Spoiled: 25 .
180
Union A: 90
Union B: 40 Legal consequence:
Union C: 30 1. VALID ELECTION
No union: 20 2. NO WINNER
Spoiled: 8 3. RUN OFF (what if no union got majority? no run-off)
188 - union A and union B will participate in the run-off

Legal consequence: Query: What if B and C got same votes?

1. VALID ELECTION, thus there is a 1 year bar - then the 3 unions will proceed in the run-off
2. NO WINNER - if you have a tie for 2nd place, then we will have no way to reduce
3. PROCEED TO RUN-OFF the choices into 2 choices.
Query: what is may decimal? ex. 90.5, how do we determine majority?
 - Can we make a re-run between B and C? no. there is no Run off is proper because maj voted for a union, meaning, maj of
requirement on that. it is just a waste of resources. employees wanted to have a union representing them although no one met
2nd maj.
Exercise 4: 80 is the base number, 95 wanted union (65+30)

Total eligible voters: 200

Union A: 45
Union B: 30
Union C: 10
No union: 40
Abstention: 30
Spoiled: 25 .
180

Legal consequence:
1. VALID ELECTION
2. NO WINNER
3. NO RUN-OFF

Exercise 5:

Total eligible voters: 200

Union A: 65
Union B: 30
No union: 20
Segregated: 20
Spoiled: 25 .
160
200 eligible
1st majority: 101 (from 200 eligible voters) pwede kasi 160
2nd maj: 68.5= 69 (from majoruty of 160-25= 135 ) wala kasi 65 yung
highest vote ng union.

Opening the challenged votes can be resorted to because the number of

segregated votes would materially alter the results. Union A might actually
win. since 65 votes siya and 20 yung segregated.

(In any case, if di siya manalo via opening those segregated votes, a run off
election might be resorted to conduct runoff. In runoff count spoiled and
segregated since code does not qualify.
 MARCH 4, 2021 Situation 1:
300 eligible voters. so we need a 151 votes for an election to be valid.
Query: Re-run. There is just one union. Is it still possible that there 250 voted:
could be a result where there is a tie between that union and “No A - 40
Union” and should that union just file to request as a SEBA? B - 50
C- 30
First, even if there is just one union/ one LLO, that union can still file a No Union - 120
PCE. You can still have a CE. Most CEs only have one union. So usually in Spoiled - 10
that case, the ballot would only be a yes or no. “Are you, the voter, willing ---
to be represented by this union?” Valid votes: 240

Is it possible to have a tie? Yes. In that case, if you ask me, the union cannot - Do we have a winner? The closest is a no union, but the no union
be certified. Why? Because the union did not get the majority. The law did not get majority.
requires a majority. There is no legal basis to conduct a re-run election. The - Can we go to a run-off? No, because only 120 votes for contending
DOLE should have included a provision stating the cases where re-run unions. It did not meet 125 or half of 250.
elections should be conducted. That’s the problem now since there are only - In effect, no union still won; although, it did not technically win.
two cases.
Situation 2:
Second, should the union just file for a SEBA certification? Yes. That's an 300 eligible voters. so we need 151 votes for an election to be valid.
option but the union may also choose not to. 250 voted:
A - 40
Other than a failure of elections, when is it possible for DOLE to conduct a B - 50
re-run? The only situation where it is valuable to break a tie is when you C- 35
have a run-off that resulted to a tie. Nag run-off ka na eh – and the purpose No Union - 120
of a run-off is to force a winner. Spoiled - 5
---
End of query. Valid votes: 250

If you have only 2 choices, whoever gets the higher number of votes gets In this case we can go to a run-off because the combined votes for
the majority. So for a run-off who have two choices, the rule is contending unions is 125, even if the no union votes got the highest number
PLURALITY. I would say that we should apply that also where there are of votes. In the run-off, you remove no union.
three unions in a run-off election.
Query: Did you encounter something like this where no union won? Yes,
Note: Even if you are already in run-off, you still need to get the first many times. Rarely you will have more than 1 contending unions.
majority; otherwise, it will be a failure. So you can have a failure on the
first election and even if valid, you can have a failure on your run-off. The End of Query
run-off is an election in itself.
Situation 3: the employer, grants the SEBA. But still, the employees have no
300 eligible voters. so we need 151 votes for an election to be valid. say. The employer still has to submit a list.
250 voted: - Safeguard is still the same: Request for SEBA certification will
A - 40 only apply if there is only one union.
B - 50
C- 31 Query: Can the SEBA certification be appealed? Technically you can
No Union - 124 question the compliance with the requirements. For example, if there was
Spoiled - 5 more than 1 union in the BU/ company.
---
Valid votes: 250 Regional office -> the Secretary of Labor.

So no union got majority of valid votes. In this case, you have a clear End of query.
winning choice. No need to go to run-off.

COLLECTIVE BARGAINING
REQUEST FOR SEBA CERTIFICATION Collective bargaining is the ____ of the exercise of the right to self-
If you check the LAW, there is only one way to get the SEBA: which is organization.
through Certification Election. There is no provision in the Labor Code - Objective. Could be culmination.
stating that a SEBA can be selected other than through the Certification
Election, which is the democratic mode. CBA is the ____ of collective bargaining
- Output/Result.
There is no basis in law for VOLUNTARY RECOGNITION (WALA
NA TO) The BU is the ____ of collective bargaining.
- It is the employer who initiates voluntary recognition. So while the - Scope. Could be beneficiary.
law says, a union selected by the majority of the employees in the
bargaining unit. This allows the employer to apply. What do you mean by collective bargaining? Connect Collective
- Safeguard: It will only apply if there is only ONE union in the Bargaining with Certification Election, Representation.
company or BU. You can only collectively bargain if you have SEBA already.

What is the role of members of the BU in voluntary recognition? Why do you need to have a SEBA first?
- In the OLD RULES, the signatures of a majority of the employees In order for an employer to rightfully know who to bargain with. Pool
in a BU were required. But this is subject to coercion or fraud. together the interest of the BU. That’s why you need just one representative.
- AMENDED RULES: Now simply requires a list of names. No BU is your principal, and you need only 1 agent, 1 SEBA for that principal.
signatures needed. This is a regression.
Is collective bargaining mandated?
Now, what is the LATEST RULE? It is a mutual duty. The right to bargain is given to both the employer and
- DOLE DELETES VOLUNTARY RECOGNITION. It is now employee.
REQUEST FOR SEBA CERTIFICATION. It’s just the same
procedure with voluntary recognition BUT now, the DOLE, not Can employer initiate the bargaining process?
Yes. Art. 261 refers to a “party,” not necessarily a SEBA.
 MARCH 9, 2021
Can union refuse/ignore?
Yes. TERM OF THE CBA

In that case, is the employer’s right violated? T/F: The term of the CBA will determine the incumbency of the SEBA.
Yes. False.

What should the CBA contain? A SEBA does NOT have a term. You cannot equate the “term” of the
Terms and conditions of employment and grievance machinery. SEBA to the 5-year representation aspect of the CBA. The SEBA will only
be dislodged if there is a challenger.
Outside those topics, the employer can refuse?
Yes. What is the representation aspect referring to?
It refers to the 5-year representation aspect of the CBA where no petition
What is the consequence of refusal to bargain? for PCE can be entertained. The bargaining agent remains secure. It is only
File a complaint for ULP or follow requirements for strike. during the freedom period (60 days PRIOR TO the expiration of the 5-year
term) that the current bargaining agent can be dislodged.
How will that work?
The union’s proposed CBA will be imposed. Aside from imposing the CBA The 5-year period is reckoned from the time of effectivity of the CBA, NOT
as a penalty, another justification is that the employer is considered to have the registration.
waived its right to bargain collectively. If we allow the employer to go back
to negotiations, it’s an award in effect. So the solution is NOT a mandamus. Does that mean that a CBA must have a 5-year term?
No. A CBA can be good for 6 years, but the Representation Aspect (5 year
Assuming the union and the employer agreed to a CBA, is that the end term) is kept. In that case, even if the CBA has a 1 year term left, the
of the duty to bargain collectively? freedom period is still the same 60 days before the expiration of the 5 years.
No. It’s a continuing process, it extends to the implementation. The nature
of the obligation is contractual and there are many consequences under that When is the CBA effective?
kind of obligation. Not at registration, you need a registration to start the CONTRACT BAR.

Other notes In short, even if registered only on the 2nd year of its effectivity, the
Note process in Art. 261. It doesn’t mean that during the first conference contract bar applies from registration, but the representation aspect
between the parties and they failed to settle, the NCMB will intervene. It’s has already started. See Art. 268.
just a start of a prolonged negotiation process.
Query: If the CBA is not registered, can there be a filing of the PCE even
There is a mandate to negotiate but NO MANDATE TO AGREE. Taking a outside the freedom period?
hardline position against all proposals is not refusal to bargain as long as
you are negotiating in good faith. Yes, at any time. The contract bar rule is directly related to the freedom
period. No registration, no freedom period to speak of.

End of query.
Assuming this is the very 1st CBA, then the parties will determine when it
will be effective. Generally, it is NOT at the meeting of the minds. But if
the parties did not fix the starting date, then it is at the meeting of the minds.
I doubt that we will ever have a CBA without a starting date.

Let us say that the CBA has an initial term of 4 years. The parties said
they will add three more years. When will the freedom period occur?
It is still 60 days before the end of the 5-year term, counting from the
effectivity of the CBA. The freedom period is NOT movable. It does not
depend on the parties agreement.

What if you have a CBA that is good for 3 years then you have a second NO automatic renewal. 1-year gap NOT counted. Freedom period is on
CBA good for 3 years. Does the two CBA’s have their respective a per CBA basis because it refers to the REPRESENTATIONAL
freedom periods? ASPECT OF THE CBA.
NO. Same rule applies. It ends on the second year of the second CBA.
There is no postponement on the freedom period. There is no extension EXCEPT in the situation wherein we have 2 CBAs with 3 year term (see
of the representation aspect. below)

You have a 5-year CBA. When does it expire?

The end of the 5-year period.

What happens before the expiration of the CBA?

There should be negotiations for another CBA at least 60 days prior to the
expiration thereof.

Is the freedom period the same as the period to start negotiations of a

new CBA?
No. It may or may not overlap, depending on the effectivity of the CBA.
However, the freedom period does not move.

A CBA’s term is fixed by the party. The term of the representation

aspect of the CBA is fixed by law and cannot be the subject of
stipulation.
Period here is tacked to count the freedom period. We “combine” the 2
Query 1: Can you negotiate before or after the 60-day period before the CBAs. Otherwise, we’ll never have a freedom period if we stick to the PER
expiration? CBA counting and we will circumvent the law.
Yes. It’s not as strict as the freedom period.
What about the next representation aspect? My thinking is that you start
Query 2: Will the 5-year period be renewed in case there's no new CBA again on your 3rd CBA. Consider the first 2 CBAs as a “6-year CBA.”
made?
 If management refuses on a renegotiation, what is the consequence?
Proposed modifications will be imposed even if there is already a CBA. SC
also applied the Kiok Loy doctrine in terms of mandatory renegotiation.

Even if the CBA was signed yesterday, then there was a proposed
modification by the union, the employer is mandated to renegotiate.

In this case, we don’t count the gap year. There are two CBAs. The freedom
period is the last 60 days of the 5-year period PER CBA. The 5-year term is
the term of the CBA in so far as the representation aspect is concerned

Query 1: Construction of Art. 268 last sentence. Doesn’t it mean 5-year

period is automatically renewed?
No. Last sentence merely refers to the life of the SEBA. SEBA still has no
term.

Query 2: In the example above, there is no representational aspect from the

end of the 5th year until the start of the 2nd CBA?
The representational aspect is settled. The incumbent SEBA remains
undisturbed.

RENEGOTIATION
3-year period for re-negotiation of economic aspect.
- 3 years is not a period, but a deadline. The end of the 3-year period
is the renegotiation deadline.
- “NOT LATER than the 3-year period”
- Management cannot be compelled to renegotiate prior to 3 year
period. If too early (i.e. we still have 11 months before the end of
the 3 years), you cannot compel management.
 MARCH 11, 2021

Summary

In this case, two 60 day periods overlap. They only overlap if the CBA
is for a 5 year period. Note: The 60 day period to negotiate (Art 264)
does not even mention a 5 year period.
When do we recognize the occurrence of the period: (This is the usual scenario).

264: 60 day period for NEGOTIATIONS because the CBA is about to Query: 1st CBA is for 4 years. Then there is a 1 year gap period, then
expire (replace with a new one or extend). It has nothing to do with the another CBA.
representation aspect or the PCE. M: In this case, you have to tack the 1-year gap. But note that this one year
Here we have 2 CBAs, the original and the extended. gap is not really a gap. It's either an extension of the 1st CBA or the 2nd
CBA will retroact.

- Again, the period is a deadline.

265: Periods here do not overlap.

T/F: In the expiration of the old CBA, without a new CBA, the old one MARCH 16, 2021
is automatically renewed.
False. There is no automatic renewal. In most cases, the two 60-day periods will overlap.

How different is “renewal” from the holdover rule? Query: Is the incumbent SEBA prevented from negotiating a new CBA with
Renewal = previous contract is renewed. Holdover is more on the extension management if a PCE is filed?
of the expired CBA “until a new agreement is reached.” No, there is no prohibition. The SEBA remains as SEBA. Even if filing for
PCE there is no bar to negotiations between the SEBA and the management.
After the expiration of the CBA, is there still a Contract Bar?
Yes. Because of the holdover principle. Query: Will the pendency of certification elections prevent the SEBA from
concluding negotiations with the management?
Meeting of the minds? A: No. There is no prohibition preventing the SEBA from concluding
Actual ending of negotiations, not the ceremonial signing. negotiations with the management during the pendency of certification
election.
Are the parties free to set the date of retroactivity?
Yes. The parties may agree on a date to set the retroactivity. They can also SUBSTITUTIONARY DOCTRINE
apply it prospectively.
It may happen that the SEBA that negotiated the new CBA is not the
Scenario: CBA 1 expired December 31, 2020. But they agreed on the LO that will win in the CE that may be conducted after the CBA is
new CBA in July 2021. Parties agree on the retroactivity of the new entered into. The previous SEBA will be dislodged and defeated in the
CBA on March 1, 2021. election. The challenger will be the new SEBA. Is the new SEBA bound
Retroactive to the parties agreement. Without such, prospective. by the CBA negotiated by the old SEBA?
YES. Mere replacement of the SEBA will not allow the new SEBA to
So they agreed to retroact it to March 1. How do you count the 5-year abandon its obligation under the CBA previously negotiated by the previous
representational aspect? SEBA. The new SEBA is bound. The new SEBA has the right to negotiate
From the date of effectivity of the 2nd CBA, which is on March 1. 2021. for the shortening of the term of the CBA - not negotiate a new CBA. if the
The freedom period is the last 60 day period of the 5 years from March 1. employer does not agree, there can be no shortening of the term of the new
CBA.
It does not mean that the representational aspect retroacts per se. It is
just that it is the representational “aspect” of the CBA, so you count The substitutionary doctrine will answer the question whether the new
from the start of the CBA. SEBA will abandon the CBA that was entered into before. Negotiate
for the SHORTENING of the term, NOT negotiate for a NEW CBA.
What if they agreed to retroact to May 2020? Which means that if the employer will not agree, the CBA with the
Then there will be an overlap. The 5-year period will start from May 2020. previous SEBA will still remain. Management can NEGOTIATE but
NOT AGREE with the shortening of the term = New SEBA is not
entitled to a new CBA.

SONEDCO Case
If the new CBA is entered into during pendency of PCE, and a new SEBA
wins the CE, and finds a CBA already concluded by old SEBA, the new
SEBA has the right to negotiate a new CBA. SC said that the CBA MARCH 18, 2020
negotiated by the previous SEBA is interim in character. Therefore, it can
be replaced by a new CBA. ***The enforcement of a Union Security clause in the CBA furnishes
sufficient cause for termination. This is recognized in Art 259 (e)
Is the SONEDCO case a reversal of the substitutionary doctrine?
NO. The court did not even mention the substitutionary doctrine. So while Union security is a generic term, which is applied to and comprehends
we have this inconsistent decision, it does NOT reverse the substitutionary closed shop, union shop, maintenance of membership, or any other form of
doctrine. There was no mention of abandoning the substitutionary doctrine. agreement which imposes upon employees the obligation to acquire or
retain union membership as a condition affecting employment.
How to answer in the Bar: Still answer with the substitutionary doctrine, - There is union shop when all new regular employees are
But you can mention that in one case, the CBA is only interim in character. required to join the union within a certain period as a
condition for their continued employment.
TERM OF THE CBAs - There is maintenance of membership shop when
employees, who are union members as of the effective
12:22 date of the agreement, or who thereafter become
members, must maintain union membership as a condition
for continued employment until they are promoted or
Grievance: Dispute between the Union itself and the employer. Two transferred out of the bargaining unit or the agreement is
documents are material: the CBA and the Code of Conduct. terminated
- A closed shop, on the other hand, may be defined as an
Not all violations of CBA amounts to a grievance, it may be a ULP. enterprise in which, by agreement between the employer
Standard: Violation must be about an economic provision of the CBA to be and his employees or their representatives, no person may
a ULP, there must be a flagrant and malicious violation of economic be employed in any or certain agreed departments of the
provisions. GROSS violations are ULP. enterprise unless he or she is, becomes, and, for the
duration of the agreement, remains a member in good
Provisions on promotion, is this an economic provision? YES. It has standing of a union entirely comprised of or of which the
economic impact. employees in interest are a part.

Q: Why is it important to know the difference between ULP and grievance? In terminating the employment of an employee by enforcing the union
A: Because ULPs lead to strikes. Grievance does NOT lead to strikes. security clause, the employer needs only to determine and prove that:
1. the union security clause is applicable;
Thursday: ULP and Union security clauses. Sir will upload on canvas 2. the union is requesting for the enforcement of the union security
Union sec clauses. Nature and concept of USC. which will lead to ULP. provision in the CBA; and
3. there is sufficient evidence to support the decision of the union to
expel the employee from the union.
These requisites constitute just cause for terminating an employee based on
the union security provision of the CBA.

What is a union security clause?

A provision in the CBA that x x x Sample 4: A CBA for Supervisory Employees. It covers new employees
and those who will be promoted. Once you become a member of the
Do all CBAs have a union security clause? bargaining unit, you are covered by the Union Security Clause. You should
No. It should be agreed upon by the parties. be a member within 15 days

effect of having a Union Security Clause Sample 5: Same for rank-and-file employees. Since the Unions involved
It will serve as a prerequisite for the employment of newly-hired employee are RnFs, the reckoning point is not hiring but regularization.
or the continued employment of workers in the bargaining unit.
Note: Violation of union Security is a ground for dismissal. If the Union
Ratio demands termination, management should comply.
To preserve SEBA status.
Note: The mildest form is Maintenance of membership Clause.
Who are covered
The members of the bargaining unit UNFAIR LABOR PRACTICES
It interferes with the exercise of the right to self-organization, violation of
Exclusions the right and duty to collectively bargain, and the right to strike.
1. Religious objectors; however, they cannot be considered as
ineligible to join a Union. There is no legal prohibition. Why is it not a good term?
2. Members of another Union - otherwise, it would result to ULP It is too generic. It does not point to the violation of the right to self-
organization.
Note: Union security clause is for the security of the SEBA.
Effect
Is a Union Security Clause always requiring the Union? There is civil and criminal liability. You cannot prosecute first. You have to
Not necessarily. Maintaining good standing of membership in a Union aka file first before the LA and there must be a finding first by the LA that the
Maintenance of Membership Clause. employer is liable.

[Check Sir’s Union Security Handout] Is the decision binding?

Sample 1: Maintenance of Membership; Section 2 tells the consequence of No.
violation of the same - DISMISSAL - in case of resignation or expulsion
from the Union. Are there other consequences?
It is a basis for a strike.
Sample 2: maintenance of membership covering those who are existing
members and those who become members afterwards. Note: You are not Can you file an administrative case and then initiate strike?
compelled to join if you are not a member No. It cannot be based on the same act constituting ULP.

Sample 3: It goes into the hiring of new employees. membership is required You need an initial attempt to organize a union. Without it, there can
upon regularization within a certain eperiod of time, otherwise, they may be be no ULP
terminated.. It covers new employees. This is a Union Shop. If there is no Union. I hired a new employee, and told him that creating
a Union is prohibited. What if I included it in the company policy?
A ULP is when an employer restrains or coerces employees tto exercise b. Hence, it requires a connivance between the SEBA and
their right to self-organization. It also includes instances where it will not the Employer.
join a Labor Organization. 2. Violation of CBA by Union
a. Not practicable because of difference between Grievance
True or False: ULP can only be committed against the SEBA and ULP
FALSE. It can be committed to those employees who are just planning to
form a Union. ______________________________________________

Assume that there are two unions. March 23, 2021

ULP can also be committed by the SEBA against another Union. For
example, the employer mandates that employees must join a Union X not T/F: A strike is a concerted action? True
Union Y.
T/F: A concerted action is a strike? False, it might be picketing.
What if employer encourages employees to form a Union? What if the
employer assists in the formation of the employees? What if the What’s the difference between picketing and strike? Picketing does not
employer facilitates the process of forming a Union? what if the necessarily cause a work stoppage.
employer invites a Federation to talk about unionization?
All would constitute a ULP. It is unlawful in order to prevent the employer When we say stoppage, what do we mean by that? Is it stoppage from
from exerting influence over the employees. - especially in the negotiation the POV of the employers or the employees?
of CBA. M: POV of the employees’ concerted action. The effect on the employers’
operations is not considered.
True or False: Discrimination in Employment is ULP.
True. However, not all types. There is valid discrimination in case of Union Situation: There was a labor dispute, and the employees were
Security Clause peacefully picketing. No strike yet. But this morning, because of a
commotion, the employees were prevented from entering their place of
T or F: the test of ULP is the effect on the employees’ exercise of the work. Is this a strike? Yes, because there is already a work stoppage.
right to self-organization
False. By the act itself, it could still be considered as ULP. So as long as there is a stoppage of work, there is a strike. What are the
other requirements for a strike? EER, labor dispute.
So what is the test?
Intention or purpose of the employer’s act If one manager was prevented from entering the premises, is there a
strike? Yes.
What if the intention is not clear?
Look at the totality of circumstances to establish bias, bad faith. You do not What about if there was only one person who prevented the manager
need to look for actual interference, restraint, or coercion. MERE from entering the premises? This manager was the person who was
REASONABLE TENDENCY is sufficient. responsible for the acts that constitute ULP and he was punched. So
what caused the stoppage? the punching and not the picketing. So is it a
How can a Union commit ULP? strike? No. because the concerted activity was NOT the cause of the
1. Against employees stoppage.
a. Induces employer to discriminate against other employees
There must be a concurrence of the stoppage and the concerted
activity. Cause of the stoppage should be the concerted activity (exx. Substantial Requirement: grounds to conduct a strike:
picketing) and not just the act of a single person. 1. Deadlock in bargaining
2. A ULP must have happened

Do not combine the two (strike and picketing) How different is a deadlock from refusal to bargain and bargaining in
- legality apply to strikes. bad faith?
- you must first determine that there is a strike
- Deadlock-could be the result of genuine negotiations bargaining. It can be
Q: Strike because they are demanding for covid vaccines. the result of good faith negotiations. Not unlawful, but it is a ground for a
A: Not a strike because of lack of labor dispute, it was merely a redress of strike.
grievance against govt.
Refusal to bargain- Unlawful, amounts to ULP so it is a ground for a
strike.
ARTICLE 219. [212] Definitions. —
Bargaining in bad faith -same consequence as refusal to bargain. Violation
of the duty to bargain collectively. It is a ULP = Ground for a strike.
(o) "Strike" means any temporary stoppage of work by the concerted
action of employees as a result of an industrial or labor dispute.
What is union busting? Discrimination against union membership leading
to their dismissal. Is this a ground for a strike? It is a subset of ULP.

From the definition, there are 3 components: How will you prove the genuine good faith belief of the employees in
1. Stoppage conducting a strike? Belief and good faith must be justified by previous
2. Concerted action overt actions of the Employer. It is the adjudicator that will determine that
3. labor dispute. there is good faith belief.
● So even if the acts will be later on declared as NOT ULP,
BUT based on some SC decisions, the SC has classified some concerted the strike is still valid.
actions that do not involve labor disputes as a strike. Example: SC declared
that the welga ng bayan was an illegal strike. The Good Faith Belief doctrine will justify the action (for example, the acts
of the ER were declared as not ULP). BUT it will not apply to the non-
Unless we have already determined that a concerted action is a strike, compliance with the procedural requirements.
we don't go to the requirements. You cannot answer that there is a
strike but it is an illegal strike. You cannot ascertain a nature of a labor Who can initiate a strike? SEBA
union’s activity based on the compliance of the requisites of a strike. - it can be a chapter, independent union provided they acquired legal
personality, REGARDLESS of WON they are SEBA
Determine first if it's a strike (Apply the 3 elements first). After you
determine that it is a strike, then you apply the requirements (theser Prior to Certification election (no SEBA), can you have a strike? Yes.
reqs are the procedural reqs) NATURE, definition, three elements any LLO. But only a company level.
(dispute, concerted action, stoppage). Ask first, is it a strike? then ask, it
is a valid/ legal strike? If you have a SEBA, can other unions or LLos initiate a strike?
 SUBSTANTIAL REQUIREMENT: strike must be justified. There are
Article 278. (c) In cases of bargaining deadlocks, the duly certified or
only two grounds: ULP or bargaining deadlock.
recognized bargaining agent may file a notice of strike or the employer
may file a notice of lockout with the Ministry at least 30 days before the PROCEDURAL REQUIREMENTS: (acts of union itself, the LLO)
intended date thereof.
1. NOTICE OF STRIKE
In cases of unfair labor practice, the period of notice shall be 15 days 2. STRIKE-VOTE MUST BE TAKEN
and in the absence of a duly certified or recognized bargaining agent, the 3. RESULTS OF THE STRIKE-VOTE MUST BE REPORTED TO
notice of strike may be filed by any legitimate labor organization in THE DOLE
behalf of its members. However, in case of dismissal from employment
of union officers duly elected in accordance with the union constitution RIGHT TO STRIKE
and by-laws, which may constitute union busting where the existence of - A constitutional right (Art. XIII, Sec. 3)
the union is threatened, the 15-day cooling-off period shall not apply and - Qualification: “in accordance with law”
the union may take action immediately. - Note: Government employees do not have the right to
strike as provided for in the deliberations of the
constitutional commissions.
(1st sentence) If the strike is about a bargaining deadlock, then it is - Biflex v. Flex: Participation in a Welga ng Bayan may constitute as
only the bargaining agent that could initiate a strike. a strike
- NUWHRAIN-DUSIT v. CA: Cleanly shaved-head of employees
(2nd sentence) Talks about ULP. This sentence does not prohibit other was a violation of Grooming Standards. This concerted action of
unions from initiating strikes. SC: interpreted this as a prohibition. The the employees amounted to strike
right to initiate is exclusive to the SEBA. - Definition
- Temporary stoppage of work by concerted action of
M: This leads to absurd situations, because what if the union is in employees as a result of industrial or labor dispute
connivance with the employer? What is the remedy? Union other than - Contra PICKETING:
the SEBA may file an ordinary complaint for ULP against both the ER and - In picketing, it is a form of concerted activity, however, it
the LO. can be done without stoppage of work.
- Grounds:
if there’s a SEBA, can another union engage in a strike? - Bargaining deadlock
- ULP
- any LLO can file in the absence of a SEBA on the ground of WHO MAY FILE
ULP. - Any LLO, but NOT a federation
- Non-members of the LLO may still participate.
If there’s a strike, can non-union members join the strike? Even if they
are members of another union? The law talks about who can INITIATE a NOTICE OF STRIKE
strike. It does not provide for who can JOIN a strike. 1. In case of bargaining deadlock, at least 30 days before intended
date of strike
2. In case of ULP, at least 15 days before intended date of strike
a. XPN: If it amounts to union busting, cooling-off period is
dispensed with.
 On strikes just take note that there are some decisions of the SC that
Q: Can a minority union file a notice of strike on the grounds of ULP? consider some non-conventional actions of workers as strikes. - which is
YES. noticeable
STRIKE VOTE
1) Like for example: slowdown of work, which is not really a
- approved by Majority of Total Union Membership
- Notice of Conduct of Strike Vote stoppage of work but was considered by the SC as strike.
- Notice must sent 24 hours before such meeting - Slowdown = Reduced output. While they continued working, the
court calls it a strike -- a strike on installment.
NOTICE OF RESULTS OF STRIKE VOTE 2) Second example: set off decisions concerning refusal to work by
- Sent within 7 days before the intended strike the employees - to render overtime work.
- Recall labor 1 discussion on hours of work. It is compulsory only
Note: In case of Union-busting, only the cooling-off period is dispensed
in certain cases. Hence, generally, OT work cannot be compelled.
with. All other requisites must still be complied with.
- Collective refusal to work beyond 8 hours as they used to do in the
ASSUMPTION OF JURISDICTION past because of labor dispute should be considered as a strike.
- For industries indispensable to the national interest - Similar to the SONEDCO case, the court decided the issue on
- Hospital strike without reference to the provisions of labor code. The court
- Electric Power oversimplified the issue.
- Water Supply - In a related case, even absences, refusal to work during the
- Air traffic control
holidays, were considered by the SC as a stoppage of work
- Effect: enjoins the parties from proceeding with strike or lockout
- Other option of SOLE: pass to NLRC via certification order amounting to strike.

ILLEGAL STRIKE Let us go to the procedure

1. Violence, coercion, intimidation; Obstruct ingress or egress;
Obstruct public thoroughfares - Strike to be valid must have a valid ground to be legal
2. Effect - If you have a valid ground, you have to complete the package
a. Union MEMBERS which includes the procedural requirements
i. cannot be terminated for mere participation
ii. To be terminated, illegal acts must have been
SUMMARY: Remember that the procedure consists of 3 notices with
done
b. Union OFFICERS corresponding 3 periods.
i. Terminated by mere participation
FIRST NOTICE: NOTICE OF STRIKE
___________________________________________________ Notice of strike . A legitimate LO (independent union or chapter) at a plant
level (Labor U can initiate a strike by filing a notice of strike in a regional
March 25, 2020 Manuel Lecture office which has jurisdiction over the case. The filing of notice starts the
cooling period.
 a. The cooling off period is either 15 days (ULP)or - The requirement is to participate in the conciliation proceedings.
30 days (deadlock) There is no requirement to enter into an amicable settlement.
b. XPN: Union Busting, - in this case where if there
is dismissal, the 15 day period is dispensed with. We are discussing this from the point of view of strike not in the POV of a
lockout. Although there are minor differences. (We will not discuss
Q: When can the notice of strike be filed? ANYTIME. lockouts)

- To clarify, because as worded, the law seems to suggest that the Q: Can you file a Notice of Strike today but conduct it next year?
union must first determine the date of actual strike, and then after
determining such date, count back either 30 or 15 days, then file a YES. No deadline for the conduct of the strike. The notice of strike does not
notice of strike. THAT IS NOT THE CASE. expire as long as the dispute is still there and as long as the grounds have
- For practical purposes, you don’t count back. There’s no such not yet been resolved. In fact, the conciliation can continue. Conciliation
requirement. Instead, you count prospectively, meaning file your may last even beyond the cooling-off period. You don't stop it upon the
notice of strike then make sure that from that day (when you filed lapse of the cooling-off period, if the parties agree to continue. The Union
your notice of strike) count 30 or 15. is not required to conduct the strike after the lapse of the cooling-off
period. Cooling-off period is the minimum.
Q: Should the notice state the date of the strike? No. There’s no such
requirement. Q:
What is the effect of conciliation after cooling off period?
- The date of the strike will depend on many circumstances. You
may have an agreement during the conciliation proceedings, in - Union cannot strike. That is a strike conducted in bad faith, since
which case the strike doesn't need to happen anymore. you’re still negotiating.
- While the cooling period is not the only time where conciliation
Start from Notice of strike, count from that day the could happen, the union could not conduct a strike if there are
cooling off period ongoing conciliation conferences even beyond the cooling off
period
We have to understand the requirements and the reason for the periods. - However, if you’re convinced that no conciliation is possible, you
Reason for the different requirements: that is supposed for conciliation thru can conduct a strike. BUT you have to be clear in the conference
the NCMB. that you would no longer participate
- You have to be clear in the conciliation conference (in the last) that
- For conciliation. Through the NCMB. Considered a continuation you would no longer agree to further discussions otherwise, if you
of bargaining. agree, and you conduct a strike, its to be considered a strike in bad
- Conciliation is different from adjudication. The NCMB shall help faith.
the parties to arrive at an agreement. The parties are free to enter
into the agreement or refuse. The requirement is to continue the
bargaining process
SECOND NOTICE: Notice of Conduct of Strike Vote [24 hours from the Does that principle apply when the strike is based on bargaining deadlock
notice to the actual conduct of the strike] and the issue affects the entire bargaining unit?

- Will you conduct your strike vote? - Yes. Strike vote is limited to the union members REGARDLESS
- Notice is filed when you have already scheduled a strike vote of the ground. Only the members of the union who filed the notice
- Second,notice can be filed at anytime when you’re ready. There is of strike would make a vote, since its an internal process (decision
no prescribed period. making) of the union.
- Can you file it on the same day you filed the notice of strike? YES - What is the vote needed? Majority.
- Can you file it before? NO, you have not yet declared the ground - Unlike the Notice of Strike, you count backwards. Why? You must
to file a strike, you have not yet informed DOLE or the employer set your strike vote first before you notify the DOLE. You do not
that you intend to conduct a strike. notify DOLE today if you are not prepared to conduct the strike
- When would be the earliest time that you file your strike vote? vote tomorrow.
Upon filing the notice of strike. As long as within 24 hours before
the conduct of strike vote Is there any deadline for that?

Why notify DOLE? - Earlier we said the earliest day you can file is upon filing the
notice of strike.
- Notice is supposed to alert DOLE that union will have that internal
decision making process so they can decide if supervision or Is there a deadline for the conduct of strike vote? There is no requirement
monitoring is necessary to mobilize the personnel needed to the for the strike vote to be conducted during the cooling off period or
place of the conduct of the strike vote thereafter. The only requirement is before you conduct the strike vote,you
need to notify DOLE 24 hours before holding the same to allow the DOLE
Do you need the presence of DOLE/DOLE representative for the conduct to monitor the strike vote -- if necessary.
strike vote?
THIRD NOTICE: Notice of Results of the Strike Vote [7 days strike
- No. You merely need the presence. The validity of the strike vote ban]
would not be invalidated by the absence of DOLE. Afterall its an
internal process where it decides the next step of action - Do you count backwards or prospectively? prospectively
- It is not an event like a strike vote.
So what is needed as a basic requirement? It must be conducted through a - When should you file the notice of results? After you conduct the
secret ballot. Otherwise, it is not a valid strike vote. strike vote

Who will participate in the strike vote? Only union members. Those who Is there a required period within which you should submit the results? No
are not union members will not participate. provision requiring a union to submit immediately the result. Can you
submit it on the day of the strike vote? YES. A week after, a month after, a
year after, YES. Again, there is no deadline.
If you delay the submission of the results, you delay the 7 day period since - Union busting dispenses with the cooling off period ONLY, not
it is counted from the time you submitted your notice. So even if you the 7 day strike ban.
conducted it several months or last year, october 2020, but until today you - Ex. Even if it’s the highest officers that’s dismissed, the union
have not submitted the notice of result, the 7 day period would not must still comply with the 7 day strike ban
commence to run. - That is the meaning of “in any case”

Legally there’s no problem with the delay. It’s just that the running of the 7 Query: for the 7 day strike ban, is it just a minimum?
day period will also be delayed.
- Yes. similar to the cooling off period. The 7 day period is not a
What is the objective of the 7 day strike ban? deadline. You are not required to conduct a strike after the lapse 7
days
- This is different from the cooling off period so the objective is not - You file your notice, you allow your 7 days to lapse, then you
conciliation CAN conduct your strike-- even after a year.
- The court explained that the 7 day strike ban is linked to the strike
vote result. You are giving DOLE the opportunity to verify the Query: NCMB primer -- the 7 day period should not be counted when the
result of the strike vote or the union that indeed, a strike vote was cooling off period has not yet lapsed? [TLDR for sir: MALI YUNG NCMB
conducted and if the results reported, is the actual result. Any PRIMER - no basis in law, rules, jurisprudence.]
person can object the result.
- So the period is to verify that the strike vote was conducted, as L illustrate.
well as the results.
- Any interested person can contest the result. - That is the reason why we are understanding the requirement by
- Similar to the notice of strike, you count prospectively. You don’t pair and understanding the objective
need to decide when you will conduct the strike

Conduct of the strike is the last event.

The conduct of strike is dependent on notice, not the other way around,
unless there is a special reason for the union to conduct a strike on a
particular day (ie. feng shui, superstition, anniversary, etc), that's the only
time where you count the period backwards.

Remember, it is sequential: you file the notice then after filing, then you
count 7 days.

Is the 7 day strike ban dispensed with when you have union busting? NO.
 - You conducted your strike vote within the 30 days BUT file the
notice of results outside the 30 days, in that case, the 7 day strike
ban is partially within and partially outside the cooling off period

Situation C: allowed

- You conducted your strike vote AND file the notice of results
OUTSIDE the 30 days, in that case, the 7 days strike ban is fully
outside the cooling off period

Situations A, B, and C, are all allowed. The NCMB primer is erroneous.

NOTICE TRIGGERS THE 7 DAYS.

- If I am conducting a strike today, have I complied with the cooling

off period, and with the 7 day strike ban? I can conduct a strike.
- But in situation B, I still have a few days in the 7 day strike ban, I
conduct a strike yet, because the 7 day period is not yet finished,
same with situation C.
- Again, the NCMB primer is erroneous. It is only a reading material
(SHADE)
- The confusion may have been because of the ruse of the term
“subject to” (the cooling off period subject to the 7 day strike ban)
The NCMB primer interpreted it incorrectly
[see illustration] - check/listen to recording. - Manuel: what is meant by the term “subject to,” if you look at the
provisions, they are independent of each other but both will have
Situation A: allowed the strike as the RECKONING POINT. It just means that even if
you have complied with one, but not with the other, you cannot
- You conducted your strike vote AND filed the notice of results conduct your strike.
early on (within 30 days), in that case the 7 day strike ban will be - As long as you comply with the requirement, it is not an issue. The
within the cooling off period. overlapping is not a legal issue.

Situation B: allowed Now in the bar, cite the law. However, cite also that we have the NCMB
primer etc. You don't know if your examiner follows the NMB primer. So
cite both.

Again may nalilito pa rin sa counting ha. Be very careful.

CONDUCT OF STRIKE - In fact, no government tribunal has a jurisdiction over the strike.
- There is no expected resolution.
- Violation of these requirements may convert your valid strike to an - Even if you have an actual notice of strike, to govt has jurisdiction
invalid one. to adjudicate the dispute and to resolve it.
- For violence, in order to consider the strike as illegal, the violence
must be pervasive-- adopted by the strikers as a strategy. Isolated Q: Why is it called assumption of jurisdiction?
acts of violence will not convert a valid strike to an invalid one.
- Blocking of the ingress/egress: while a strike is supposed to cause - Prior to the assumption, jurisdiction was not with the DOLE.
a stoppage of work, our law prohibits the strikers from preventing - Assumption of jurisdiction is a special action that can be done by
employees from entering and leaving the premises. In fact, that is the SOLE and the President of the Philippines - it is compulsory.
usually the cause of tension in strike areas. When they see supplies - And this is unique to labor dispute resolution, unlike other cases
or products being delivered to the employers, it is very frustrating where jurisdiction is determined on your initiatory pleadings.
for strikers to see that and that is when harassment from both sides - In here, there is no initiatory pleading
starts.
- So note that even if you have a valid strike, meaning you complied Certification
with all the requirements we discussed, it can still be an invalid
one. - Why is it called certification? Instead of deciding to adjudicate, it
- Also related is the principle of pari delicto: where both sides are will be referred by the SOLE to the NLRC. the SOLE will issue an
guilty of violent acts during the strike, they cancel each other’s order thereto.
faults so you cannot hold the employees liable for an invalid strike.
Q: Is there any specific coverage for assumption of jurisdiction?
So quits.

- No. Any strike regardless of the ground can be subject to the

Q: for pari delicto to apply, must the violence employed by the employer be
assumption of jurisdiction. Whether the ground is ULP or
pervasive as well? YES. It must be commensurate. Pari delicto nga eh. (SC
bargaining deadlock. So there is no legal distinction between the
did not clarify; Manuel’s opinion)
two.
ASSUMPTION OF JURISDICTION - Practice: most if not all ULP (sorry di ko na rinig)

- Earlier we said that a strike is initiated by a notice of strike not by Q: What can be covered?
a complaint or petition
Special cases only. Only those disputes which may affect a company which
- There is no prayer or remedy in a notice
is part of an industry that is indispensable to the national interest. It can
- You are merely announcing an intent to strike, because of that you
be just one company BUT if that company is part of an industry that is
are not expecting any adjudication because it's not a petition, you
indispensable to the national interest, then that can be subject to the
are not expecting a resolution granting or denying what you filed.
jurisdiction of the SOLE.
You simply notified.
Q: Is there a definition for industries indispensable? workers. The strikers must be restored prior to the strike or
lockout.
A: None. When the Secretary of Labor decides that an industry is
indispensable, then the courts usually respect this finding. Q: How important is compliance with an assumption or certification order?

The SOLE issued a DO, declaring certain industries that are DEEMED - Non compliance or defiance of the order have severe
indispensable to the national interest. In the DO: Ex. Airlines, air traffic consequences.
control, water supply, power, hospitals (although hospitals are already - If the strikers defy the order, their defiance shall merit the penalty
covered by special provisions in the labor code) of dismissal from employment. So if they refuse to return to work
despite the order , they will lose their jobs. On the other hand, if
Does the DO limit the coverage? No. the employer defies, then the employer is liable to pay backwages.
This is a monetary liability on the part of the defiance of the
Remember the term - INDUSTRY that is INDISPENSABLE to employer.
NATIONAL INTEREST. The strike is not the one that is indispensable. It
is the INDUSTRY. So you can use this phrase: Strike that affects the The SC emphasised the importance of NOTICE.
industry that is indispensable to national interest.
- In one case involving University of the East, the notice was simply
Q: When can an assumption or certification order be issued? posted in the vicinity of the strike area, the SC said that is not
proper notice.
A: Anytime prior to action strike or lockout. There is no specific period. - The court applied the Rules on Service. It should be personal
Usually it is issued before the conduct of strike, to prevent a strike from service and if not possible, then substituted service.
starting. Assuming the strike has started, then the SOLE can issue the - Merely posting copies of the order in the vicinity of the premises
assumption order/certification order anytime. of the strike area is not adequate notice on the part of the employer.
- Without proper notice, we cannot rule that the strikers defied the
order of the SOL. Therefore, they cannot be fired.

EFFECTS OF ASSUMPTION/CERTIFICATION ORDER Just to link it to discussion on CBAs, this is when you can have arbitral
awards.
- Even if the union has complied with all the requirements, if an
assumption order/certification order is issued, then the union When can you have an arbitral award?
cannot say that “we have complied with all the requirements”
- On the other hand if the strike or lockout has already started and - If you have a strike based on deadlock, and you have assumption
the certification/ assumption is issued by the SOL, the strike must of jurisdiction by the SOLE, the decision of the Secretary will be
stop. Which means that the strikers must go back to work and the considered an arbitral award imposing a CBA between the parties
employer must accept them. What is the condition? The return - Otherwise, without assumption of jurisdiction, you can’t have an
must be STATUS QUO ANTE. The employer cannot reassign the arbitral award imposing a CBA between the parties
What will happen? Sec of Labor will require parties to submit their position b. Union officers who KNOWINGLY PARTICIPATED in
papers and then the SOLE will decide somewhere in between the positions the illegal strike can be terminated. XPN: if they can
of the parties. Sec of Labor will weigh positions and justify the decision prove that they did not knowingly participate
based on the facts presented by the parties against the socio economic
conditions then present. Another point on consequences of participating in a strike:

Q: What can the SOLE decide when there is an assumption of jurisdiction? Participation in a strike does not constitute the dismissal of EER. It is just
an exercise of constitutional right. Regardless of whether the strike is legal
- The SOLE’s authority in assuming jurisdiction is plenary in nature. or not, it is not considered an abandonment of their jobs. At the end of the
Any dispute can be resolved by the SOLE to end the strike or strike, they are expected to go back to work.
lockout. All incidental/pending issues should be subsumed.
- Ratio: SOL assumes jurisdiction because of the industry involved. During the strike, the employer has to hire other workers who will perform
So it’s not just the parties that he must consider. That’s why his the work of the strikers during the strike. This is not prohibited. The only
authority is plenary. limitation is the rule on sub-contracting. Employer can hire substitutes
directly.
ILLEGAL STRIKE
Situation: 100 workers participated in the strike. The company hired 100
illegal strike. workers to replace the strikers. Then the strike stops. What happens? The
strikers should be accepted back. Now, the company will find itself wil 200
Once you comply with the 3 requirements (3 notices, 3 periods), you have a workers, what can the company do? Management can dismiss based on
valid strike. If you miss one requirement, it becomes an illegal strike. redundancy. If we use the last in first out rule in redundancy, then the
replacement workers will be terminated first.
Consequences of illegal Strike
One problematic area when it comes to the issue on grievance strikes is
1. There can be no wholesale/mass dismissal of strikers because of a when union members are illegally dismissed by the employer because of
declaration that the strike is illegal. mere participation in a grievance strike. Clearly it is an illegal dismissal.
a. When can you have a wholesale dismissal of strikers (not
distinguishing between officer and regular member)? Ordinary union members cannot be dismissed by mere participation in an
When there is a defiance of an assumption or certification illegal strike, the management if they dismiss the employee would be liable
order. for an illegal dismissal.
2. Distinguish Union Officer and Union Members
a. Union members who are NOT officers cannot be There would be an issue with regard to backwages. The rule concerning
terminated by mere participation in the illegal strike- no dismissal is simple, if there is an illegal dismissal the remedy is
matter how illegal it is. reinstatement + back wages.
i. EXP: If the regular member is the one who
commits an illegal act, example: violence.
In some cases, the SC would say that the worker is entitled to reinstatement
period. Union Officers.
only. The court attributes the strikers for their participation in the strike. - Threatening the existence
What you need to understand is the reason for the dismissal. If the reason is File today, but conduct a strike of the union.
the participation in the strike. next year? YES. Notice does not - No need to observe
expire as long as dispute is still cooling off period.
If the strike already ended because of the assumption of jurisdiction,and the there.
strike ended but mgmt refused to accept the workers back, workers should
Notice of Conduct of Strike Vote 24 hours from notice to the actual
be entitled to reinstatement with full backwages. But in some cases, the SC
- To DOLE conduct of strike vote.
states that they are not entitled. So we had to be very careful at which point - No prescribed period for
they are dismissed and at what point should they be entitled to backwages. filing Purpose: To alert DOLE, so that
If they are dismissed today because they are conducting an … shet di ko - Can be filed on the same DOLE can decide if supervision/
narinig day as filing Notice of monitoring is necessary. Also, to
Strike mobilize the personnel/
If you have a situation where they are returning to work, and management - Cannot be filed before representatives of DOLE.
dismissed them, they should be entitled to backwages at that point. The Notice of Strike
- Earliest time to conduct
court did not clarify that.
strike vote: the day after
you file notice of strike
Q: Who has jurisdiction to declare a strike illegal? and the notice of strike
vote
- LABOR ARBITER. He has exclusive original jurisdiction. - Internal union process,
- Employer can file a petition to declare a strike illegal but this is where union decides on its
independent of an assumption of jurisdiction by the SOLE. next action
- If there is an assumption/ certification by the SOL, the SOLE in - SECRET BALLOT
addition to deciding the dispute, can also declare the strike illegal.
Notice of Results of Strike Vote 7 days after submission of notice
- Counted prospectively - It is called 7 day strike
MT: Canvas plus zoom. I’ll be there. No going back. Shuffled questions. - No requirement to ban.
Only for 2 hrs. Different types of testing, not purely essay. immediately submit strike
vote result. No deadline. OBJECTIVE of the 7-day strike
- 7-day period is counted ban:
from the submission of - To give the DOLE to
Short Summary the notice of results verify the results of the
strike vote
Notice of Strike - Regional Office; Cooling off period: 15 days (ULP) - To verify that indeed a
count prospectively from filing of or 30 days (Bargaining Deadlock) strike vote was conducted
Notice - To verify accuracy of
- Triggers the cooling off XPN: Union Busting. Dismissal of report - whether that
 reported is the actual
result of strike vote

UNION BUSTING does not

dispense with the 7-day strike ban