A.
RIGHT TO SELF-ORGANIZATION 1.
WHO MAY EXERCISE THE RIGHT
• Who are eligible to join, form or assist a labor organization for purposes of collective bargaining?
• In the private sector:
1. All persons employed in commercial, industrial and agricultural enterprises;
2. Employees of government-owned and/or controlled corporations without original charters established under the Corporation Code;
3. Employees of religious, charitable, medical or educational institutions, whether operating for profit or not;
4. Front-line managers, commonly known as supervisory employees [See discussion below]; 5. Alien employees [See discussion below];
6. Working children [See discussion below]; 7. Homeworkers [See discussion below];
8. Employees of cooperatives [See discussion below]; and
9. Employees of legitimate contractors not with the principals but with the contractors
• In the public sector:
All rank-and-file employees of all branches, subdivisions, instrumentalities, and agencies of government, including government-owned and/or controlled corporations with original charters, can form, join or assist employees’ organizations of their own choosing.
• Are front-line managers or supervisors eligible to join, form or assist a labor organization?
Yes, but only among themselves. They cannot join a rank-and-file union.
• Do alien employees have the right to join a labor organization?
No, except if the following requisites are complied with:
(1) He should have a valid working permit issued by the DOLE; and
(2) He is a national of a country which grants the same or similar rights to Filipino workers OR which has ratified either ILO Convention No. 87 or ILO Convention No. 98 (ON THE RIGHT TO SELF-ORGANIZATION OF WORKERS) as certified by the Philippine Department of Foreign Affairs (DFA).
• Do members of cooperatives have the right to join, form or assist a labor organization?
No, because they are co-owners of the cooperative.
• What about employees of a cooperative?
Yes, because they have employer-employee relationship with the cooperative.
• What about members who are at the same time employees of the cooperative?
No, because the prohibition covers employees of the cooperative who are at the same time members thereof. But employee-members of a cooperative may withdraw as members of the cooperative for purposes of joining a labor union.
• Can employees of job contractors join, form or assist a labor organization?
Yes, but not for the purpose of collective bargaining with the principal but with their direct employer – the job contractor.
• Are self-employed persons allowed to join, form or assist a labor organization?
Yes, for their mutual aid and protection but not for collective bargaining purposes since they have no employers but themselves. BUT AS AND BY WAY OF DISTINCTION, THEIR LABOR ORGANIZATION IS CALLED “WORKERS’ ASSOCIATION.”
This rule applies as well to ambulant, intermittent and other workers, rural workers and those without any definite employers. The reason for this rule is that these persons have no employers with whom they can collectively bargain.
2.
COMMINGLING or MIXED MEMBERSHIP
• Is COMMINGLING or MIXED MEMBERSHIP of supervisors and rank-and-file union in one union allowed? Is it a ground to cancel its registration?
No. It is not allowed. However, it bears noting that in case there is commingling or mixed membership of supervisors and rank-and-file employees in one union, the new rule enunciated in Article 256 [245-A] of the Labor Code, unlike in the old law, is that it cannot be invoked as a ground for the cancellation of the registration of the union. The employees so improperly included are automatically deemed removed from the list of members of said union. In other words, their removal from the said list is by operation of law.
3.
WHO CANNOT FORM, JOIN OR ASSIST LABOR ORGANIZATIONS
1. PERSONS NOT ALLOWED TO FORM, JOIN OR ASSIST LABOR ORGANIZATIONS.
a. In the private sector.
1. Top and middle level managerial employees; and 2. Confidential employees.
b. In the public sector.
The following are not eligible to form employees’ organizations:
1. High-level employees whose functions are normally considered as policy-making or managerial or whose duties are of a highly confidential nature;
2. Members of the Armed Forces of the Philippines;
3. Police officers;
4. Policemen;
5. Firemen; and 6. Jail guards.
• Are managerial employees allowed unionize?
There are 3 types of managerial employees:
1. Top Management 2. Middle Management
3. First-Line Management (also called supervisory level)
The first two above are absolutely prohibited; but the third, being supervisors, are allowed but only among themselves.
• Are confidential employees allowed to join, form or assist a labor organization?
No, under the confidential employee rule.
“Confidential employees” are those who meet the following criteria:
(1) They assist or act in a confidential capacity;
(2) To persons or officers who formulate, determine, and effectuate management policies specifically in the field of labor relations. If not related to labor relations, an employee can never be considered as confidential employee as would deprive him of his right to self-organization.
The two (2) criteria are cumulative and both must be met if an employee is to be considered a
“confidential employee” that would deprive him of his right to form, join or assist a labor organization.
4.
DOCTRINE OF NECESSARY IMPLICATION
• What is the doctrine of necessary implication?
Under the confidential employee rule, a rank-and-file employee or a supervisory employee, is elevated to the position of a managerial employee, under another doctrine called the DOCTRINE OF NECESSARY IMPLICATION, hence, he is treated as if he is a managerial employee because of his access to confidential information related to labor relations. THE DOCTRINE OF NECESSARY IMPLICATION IS THEREFORE THE LEGAL BASIS FOR INELIGIBILITY OF CONFIDENTIAL EMPLOYEE TO JOIN A UNION.
For example, not all secretaries to top officials of the company may be considered as confidential employees, unless they have access to confidential information related to labor relations, such as when they transcribe or type/encode the counter-proposals of management on the proposals of the SEBA in a CBA negotiation.
That access to such counter-proposals is the type of access contemplated under this rule.
• What are some principles on the right to self-organization?
• Any employee, whether employed for a definite period or not, shall, beginning on the first day of his service, be eligible for membership in any labor organization.
• Right to join a union cannot be made subject of a CBA stipulation.
5.
RIGHTS AND CONDITIONS OF MEMBERSHIP a.
NATURE OF RELATIONSHIP
• What is the relationship of the union and its members?
It is in the nature of principal-agent relationship, the members being the principal and the union, the agent.
• What is the relationship of the labor union and federation?
It is also in the nature of principal-agent relationship, the labor union being the principal and the federation, the agent.
a.1.
AFFILIATION AND DISAFFILIATION OF THE LOCAL UNION FROM THE MOTHER UNION 1. AFFILIATION.
a. Mother union.
In relation to an affiliate, the federation or national union is commonly known as the “mother union.”
This term is not found in law but oftentimes, the Supreme Court uses this term to describe a federation or a national union.
b. Affiliate.
An “affiliate” refers to:
(1) An independent union affiliated with a federation or a national union; or
(2) A local chapter which has been subsequently granted independent registration but did not disaffiliate from the federation or national union which created it.
c. A chartered local/local chapter, not an affiliate.
Based on the above definition and description, technically, a local chapter created through the mode of chartering by a mother union under Article 234-A of the Labor Code, cannot be properly called an “affiliate” if it has not acquired any independent registration of its own.
The contract that binds a mother union and an affiliate is called “Contract of Affiliation”; while that of a mother union and the chartered local/local chapter is called “Charter Certificate.”
d. Purpose of affiliation.
The purpose is to further strengthen the collective bargaining leverage of the affiliate. No doubt, the purpose of affiliation by a local union with a mother union (federation or national union) is to increase by collective action its bargaining power in respect of the terms and conditions of labor.
e. Principal-agent relationship.
To iterate, the mother union, acting for and in behalf of its affiliate, has the status of an agent while the local union remains the principal – the basic unit of the association free to serve the common interest of all its members subject only to the restraints imposed by the constitution and by-laws of the association.
f. Some principles on affiliation.
• Independent legal personality of an affiliate union is not affected by affiliation.
• Affiliate union becomes subject of the rules of the federation or national union.
• The appendage of the acronym of the federation or national union after the name of the affiliate union in the registration with the DOLE does not change the principal-agent relationship between them. Such inclusion of the acronym is merely to indicate that the local union is affiliated with the federation or national union at the time of the registration. It does not mean that the affiliate union cannot independently stand on its own.
• The fact that it was the federation which negotiated the CBA does not make it the principal and the affiliate or local union which it represents, the agent.
• In case of illegal strike, the local union, not the mother union, is liable for damages.
2. DISAFFILIATION.
a. Right to disaffiliate.
The right of the affiliate union to disaffiliate from its mother federation or national union is a constitutionally-guaranteed right which may be invoked by the former at any time. It is axiomatic that an affiliate union is a separate and voluntary association free to serve the interest of all its members - consistent with the freedom of association guaranteed in the Constitution.
b. Disaffiliation of independently-registered union and local chapter, distinguished.
The disaffiliation of an independently-registered union does not affect its legitimate status as a labor organization. However, the same thing may not be said of a local chapter which has no independent registration since its creation was effected pursuant to the charter certificate issued to it by the federation or national union. Once a local chapter disaffiliates from the federation or national union which created it, it ceases to be entitled to the rights and privileges granted to a legitimate labor organization. Hence, it cannot, by itself, file a petition for certification election.
c. Some principles on disaffiliation.
▪ Disaffiliation does not divest an affiliate union of its legal personality.
▪ Disaffiliation of an affiliate union is not an act of disloyalty.
▪ Disaffiliation for purposes of forming a new union does not terminate the status of the members thereof as employees of the company. By said act of disaffiliation, the employees who are members of
the local union did not form a new union but merely exercised their right to register their local union.
The local union is free to disaffiliate from its mother union.
▪ Disaffiliation should be approved by the majority of the union members.
▪ Disaffiliation terminates the right to check-off federation dues. The obligation to check-off federation dues is terminated with the valid disaffiliation of the affiliate union from the federation with which it was previously affiliated.
▪ Disaffiliation does not affect the CBA. It does not operate to amend it or change the administration of the contract.
▪ Disaffiliating from the federation and entering into a CBA with the employer does not constitute an unfair labor practice.
▪ Disaffiliation is not a violation of the union security clause.
a.2.
SUBSTITUTIONARY DOCTRINE
1. CHANGE OF BARGAINING REPRESENTATIVE DURING THE LIFE OF A CBA.
It simply refers to the substitution of the existing SOLE AND EXCLUSIVE BARGAINING AGENT (“SEBA” or simply “bargaining agent”) by a newly certified SEBA which defeated it in the certification election.
As new SEBA, it is duty-bound to respect the existing CBA but it can renegotiate for new terms and conditions thereof.
2. EFFECT OF SUBSTITUTIONARY DOCTRINE ON THE DEPOSED UNION’S PERSONAL UNDERTAKINGS.
In case of change of bargaining agent under the substitutionary doctrine, the new bargaining agent is not bound by the personal undertakings of the deposed union like the “no strike, no lockout” clause in a CBA which is the personal undertaking of the bargaining agent which negotiated it.
3. SOME PRINCIPLES ON SUBSTITUTIONARY DOCTRINE.
• The substitutionary doctrine cannot be invoked to subvert an existing CBA, in derogation of the principle of freedom of contract. The substitution of a bargaining agent cannot be allowed if the purpose is to subvert an existing CBA freely entered into by the parties. Such act cannot be sanctioned in law or in equity as it is in derogation of the principle underlying the freedom of contract and good faith in contractual relations.
• The substitutionary doctrine is applicable also to a situation where the local union, which was created through the process of chartering by the mother union, disaffiliates from the latter after it secured an independent registration. The local union will thus be substituted to that of the federation which negotiated the CBA as in Elisco-Elirol Labor Union [NAFLU] v. Noriel, where petitioner union was created through the mode of chartering by the National Federation of Labor Unions (NAFLU) and later, it secured its independent registration with the BLR and disaffiliated with NAFLU by virtue of a resolution by its general membership.
B.
BARGAINING UNIT
• What is a bargaining unit?
A “bargaining unit” refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. It may also refer to the group or cluster of jobs or positions within the employer’s establishment that supports the labor organization which is applying for registration.
(a)
TEST TO DETERMINE THE CONSTITUENCY OF AN APPROPRIATE BARGAINING UNIT
• What are the four tests to determine appropriate bargaining unit?
Based on jurisprudence, there are certain tests which may be used in determining the appropriate collective bargaining unit, to wit:
(1) Community or mutuality of interest doctrine;
(2) Globe doctrine or will of the members;
(3) Collective bargaining history doctrine; and (4) Employment status doctrine.
1. COMMUNITY OR MUTUALITY OF INTEREST DOCTRINE.
Under this doctrine, the employees sought to be represented by the collective bargaining agent must have community or mutuality of interest in terms of employment and working conditions as evinced by the type of work
they perform. It is characterized by similarity of employment status, same duties and responsibilities and substantially similar compensation and working conditions.
St. James School of Quezon City v. Samahang Manggagawa sa St. James School of Quezon City. - 1 Respondent union sought to represent the rank-and-file employees (consisting of the motor pool, construction and transportation employees) of petitioner-school’s Tandang Sora campus. Petitioner-school opposed it by contending that the bargaining unit should not only be composed of said employees but must include administrative, teaching and office personnel in its five (5) campuses. The Supreme Court disagreed with said contention. The motor pool, construction and transportation employees of the Tandang Sora campus had 149 qualified voters at the time of the certification election, hence, it was ruled that the 149 qualified voters should be used to determine the existence of a quorum during the election. Since a majority or 84 out of the 149 qualified voters cast their votes, a quorum existed during the certification election. The computation of the quorum should be based on the rank-and-file motor pool, construction and transportation employees of the Tandang Sora campus and not on all the employees in petitioner’s five (5) campuses. Moreover, the administrative, teaching and office personnel are not members of the union. They do not belong to the bargaining unit that the union seeks to represent.
Other cases:
(1) San Miguel Corporation v. Laguesma, involving a petition of the union which seeks to represent the 2 sales personnel in the various Magnolia sales offices in Northern Luzon. Petitioner company, however, opposed it by taking the position that each sales office should constitute one bargaining unit. In disagreeing with this proposition of petitioner, the High Court said: “What greatly militates against this position (of the company) is the meager number of sales personnel in each of the Magnolia sales office in Northern Luzon. Even the bargaining unit sought to be represented by respondent union in the entire Northern Luzon sales area consists only of approximately fifty-five (55) employees. Surely, it would not be for the best interest of these employees if they would further be fractionalized. The adage ‘there is strength in number’ is the very rationale underlying the formation of a labor union.”
(2) San Miguel Corporation Supervisors and Exempt Employees Union v. Laguesma, involving the 3 issue of validity of constituting as one CBU of employees working in San Miguel’s three (3) plants located in three (3) different places, namely: (1) in Cabuyao, Laguna, (2) in Otis, Pandacan, Metro Manila, and (3) in San Fernando, Pampanga. It was declared that geographical location is immaterial and therefore can be completely disregarded if the communal or mutual interest of the employees are not sacrificed. The distance among the 3 plants is not productive of insurmountable difficulties in the administration of union affairs. Neither are there regional differences that are likely to impede the operations of a single bargaining representative.
(3) Similar to this case is University of the Philippines v. Ferrer-Calleja, where all non-academic rank-4 and-file employees of the University of the Philippines in its various campuses, to wit: (1) Diliman, Quezon City;
(2) Padre Faura, Manila; (3) Los Baños, Laguna; and (4) the Visayas, were allowed to participate in a certification election as one bargaining unit.
2. GLOBE DOCTRINE.
This principle is based on the will of the employees. It is called Globe doctrine because this principle was first enunciated in the United States case of Globe Machine and Stamping Co., where it was ruled, in defining the 5 appropriate bargaining unit, that in a case where the company’s production workers can be considered either as a single bargaining unit appropriate for purposes of collective bargaining or as three (3) separate and distinct bargaining units, the determining factor is the desire of the workers themselves. Consequently, a certification election should be held separately to choose which representative union will be chosen by the workers.
International School Alliance of Educators [ISAE] v. Quisumbing. - The Supreme Court ruled here 6 that foreign-hired teachers do not belong to the bargaining unit of the local-hires because the former have not indicated their intention to be grouped with the latter for purposes of collective bargaining. Moreover, the collective bargaining history of the school also shows that these groups were always treated separately.
3. COLLECTIVE BARGAINING HISTORY DOCTRINE.
This principle puts premium to the prior collective bargaining history and affinity of the employees in determining the appropriate bargaining unit. However, the existence of a prior collective bargaining history has been held as neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit.
National Association of Free Trade Unions v. Mainit Lumber Development Company Workers Union. - It was ruled here that there is mutuality of interest among the workers in the sawmill division and logging 7
National Association of Free Trade Unions v. Mainit Lumber Development Company Workers Union. - It was ruled here that there is mutuality of interest among the workers in the sawmill division and logging 7