Desarrollo de casos de uso

Unlike managers, supervisors can unionize.

3.1 First Period: Under the Industrial Peace Act

The problem was that although the Industrial Peace Act defined a

“supervisor,” it failed to define a

“manager” or “managerial employee.” So the question arose: Did the word

“supervisor” include “manager”? Could managers also unionize? In a case involving Caltex managers, the Court answered affirmatively.

3.2 Second Period: Under the Labor Code Before Amendment by R.A. No. 6715 This time the question was: Did

‘managerial employee” include

“supervisor”? Were supervisors also banned from unionizing? Yes. The prohibition was applied to supervisors in the case of Bulletin Publishing Corp. V.

Sanchez, 144 SCRA 428, decided on October 7, 1986.

3.3 Third Period: Under the Labor Code as Amended by RA 6715

R.A. No. 6715 presents a compromise formula: retain the ineligibility of managerial employees but revive the right of supervisory employees to unionize.

4. DEFINITION OF MANAGER AND SUPERVISOR

Unlike in the Industrial Peace Act and the Labor Code before such amendment, the power to decide on managerial acts is now separated from the power to recommend those managerial acts, such as laying down policy, hiring or dismissing employees, etc. A supervisor has the power only to recommend while a managerial employee has the power to decide and do those acts.

But to make one a supervisor, the power to recommend must not be merely routinary or clerical in nature but requires the use of independent judgment. In

other words, the recommendation is (1) discretionary or judgmental (not clerical), (2) independent (not a dictation of someone else), and (3) effective (given particular weight in making the management decision). If these qualities are lacking or, worse, if the power to recommend is absent, then the person is not really a supervisor but a rank-and-file employee and therefore belongs or should belong to a rank-and-file organization.

Similarly, a so-called manager, no matter how his position is titled, is not really a manager in the eyes of the law if he does not possess managerial powers (to lay down and execute management policies and/ or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees). If he can only recommend the exercise of any of these powers, he is only a supervisor, hence, may join, assist or form a supervisors’ organization.

5. TEST OF SUPERVISORY STATUS The test of "supervisory" or "managerial status" depends on whether a person possesses authority to act in the interest of his employer in the matter specified in Article 212 (k) of the Labor Code and Section 1 (m) of its Implementing Rules and whether such authority is not merely routinary or clerical in nature, but requires the use of independent judgment. Thus, where such recommendatory powers as in the case at bar, are subject to evaluation, review and final action by the department heads and other higher executives of the company, the same, although present, are not effective and not an exercise of independent judgment as required by law.

It is the nature of an employee's functions and not the nomenclature or title given to his job which determines whether he has rank-and-file or managerial status. Among the characteristics of managerial rank are: (1) He is not subject to the rigid observance of regular office hours; (2) His work requires the consistent exercise of discretion and judgment in its performance; (3) the output produced or the result accomplished cannot be standardized in relation to a given period

of time; (4) He manages a customarily recognized department or subdivision of the establishment, customarily and regularly directing the work of other employees therein;

(5) He either has the authority to hire or discharge other employees or his suggestions and recommendations as to hiring and discharging, advancement and promotion or other change of status of other employees are given particular weight; and (6) As a rule, he is not paid hourly wages nor subjected to maximum hours of work.

5.1 The Power to Recommend

The power to recommend, in order to qualify an employee as a supervisor, must not only be effective but should require the use of independent judgment.

It should not be merely of a routinary or clerical nature.

5.2 Examples of Ineffective or Clerical Recommendation

6. SEGREGATION OF RANK-AND-FILE AND SUPERVISORS

Article 245 allows supervisory employees to form, join, or assist separate labor organizations of their own, but they are not eligible for membership in a labor organization of the rank-and-file employees. Neither may a rank-and-file join a union of supervisors.

This policy of segregating the supervisors’

union from that of the rank-and-file is founded on fairness to the employees themselves. It will be doubly detrimental to the employer if the supervisors and the rank-and-file, as members of only one union, could take a common stand against the employer.

6.1 Effects of Having Mixed Membership A union whose membership is a mixture of supervisors and rank-and-file is not and cannot become a legitimate labor organization. It cannot petition for a certification election, much less ask to be recognized as the bargaining representative of employees.

The Labor Code has made it a clear statutory policy to prevent supervisory employees from joining labor organizations consisting of rank-and-file employees as the concerns which involve members of either group are normally disparate and contradictory.

Clearly, based on Article 245, a labor organization composed of both rank-and-file and supervisory employees is no labor organization at all. It cannot, for any guise or purpose, be a legitimate labor organization.

Not being one, an organization which carries a mixture of rank-and-file and supervisory employees cannot possess any of the rights of a legitimate labor organization, including the right to file a petition for certification election for the purpose of collective bargaining. It becomes necessary, therefore, anterior to the granting of an order allowing a certification election, to inquire into the composition of any labor organization whenever the status of the labor organization is challenged on the basis of Article 245 of the Labor Code.

The rationale behind the Code's exclusion of supervisors from unions of rank-and-file employees is that such employees, while in the performance of supervisory functions, become the alter ego of management in the making and the implementing of key decisions at the sub-managerial level.

Certainly, it would be difficult to find unity or mutuality of interests in a bargaining unit consisting of a mixture of rank-and-file and supervisory employees. And this is so because the fundamental test of a bargaining unit's acceptability is whether or not such a unit will best advance to all employees within the unit the proper exercise of their collective bargaining rights. The Code itself has recognized this, in preventing supervisory employees from joining unions of rank-and-file employees.

6.2 How Many? How Few?

6.3 Illegal Mixed Membership Must Be Raised and Proved

6.4 Cancellation of Union Registration on Ground of Inclusion of Disqualified Positions: What needs to be Proved

What is essential is the nature of the employee’s function and not the

nomenclature or title given to the job which determines whether the employee has rank-and-file or managerial status or whether he is a supervisory employee.

The implementing Rules state that the legal personality of the petitioner union cannot be subject to collateral attack “but may be questioned only in an independent petition for cancellation.”

To summarize, the petition for certification election is not the proper forum to raise the issue of legal personality of the union. Also, a petition to cancel union registration cannot be heard or decided by the Med-Arbiter but either the DOLE Regional Director for enterprise-level or the BLR Director for national unions.

6.5 Affiliation of Supervisors and Rank-and-File Unions

Even in affiliating with a federation, the unions of the supervisors and of the ran-and-file should be segregated.

The peculiar role of supervisors is such that while they are not managers, when they

recommend action implementing

management policy or ask for the discipline or dismissal of subordinates, they identify with the interests of the employer and may act contrary to the interests of the rank-and-file.

We agree with the petitioner's contention that a conflict of interest may arise in the areas of discipline, collective bargaining and strikes.

Members of the supervisory union might refuse to carry out disciplinary measures against their co-member rank-and-file employees. In the area of bargaining, their interests cannot be considered identical. The needs of one are different from those of the other. Moreover, in the event of a strike, the national federation might influence the supervisors' union to conduct a sympathy strike on the sole basis of affiliation.

Thus, if the intent of the law is to avoid a situation where supervisors would merge with the rank and-file or where the supervisors' labor organization would represent conflicting interests, then a local supervisors' union should not be allowed to affiliate with the

national federation of union of rank-and-file employees where that federation actively participates in union activity in the company.

6.6 Restriction in Affiliation Clarified in De La Salle

First, the rank-and-file employees are directly under the authority of the supervisory employees. Second, the national federation is actively involved in union activities in the company. If these two conditions are absent, the rule prohibiting supervisors from affiliating with the mother union of the rank-and-file union does not apply.

The affiliation of two local unions in a company with the same national federation is not by itself a negate-on of their independence since in relation to the employer, the local unions are considered as the principals, while the federation is deemed to be merely their agent.

7. CONFIDENTIAL EMPLOYEES

7.1 First Swing: Inclusion Among Rank-and-File

7.2 Second Swing: Exclusion from Rank-and-File

7.3 Third Swing: Inclusion Among Supervisors

7.4 Fourth Swing: Inclusion Among Monthly Paid Rank-and-File

7.4a Limited Exclusion; Doctrine of Necessary Implication

A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer's property.

While Art. 245 of the Labor Code singles out managerial employees as ineligible to join, assist or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified.

The doctrine of necessary implication means that what is implied in a statute is as much a part thereof as that which is expressed.

7.4b The Metrolab and Meralco Summations: Exclusion from Bargaining unit and Closed-shop Clause

Although Article 245 of the Labor Code limits the ineligibility to join, form and assist any labor organization to managerial employees, jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records.

7.4c Who Are Confidential Employees?

Confidential employees assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations. As such, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them.

Confidential employees are those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records.

By the very nature of their functions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations.

7.4d The Labor Nexus

The broad rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests.

"Management should not be required to handle labor relations matters through employees who are represented by the union with which the company is required to deal and who in the normal performance of their

duties may obtain advance information of the company's position with regard to contract negotiations, the disposition of grievances, or other labor relations matters."

Art. 245 of the Labor Code does not directly prohibit confidential employees from engaging in union activities.

However, under the doctrine of necessary implication, the disqualification of managerial employees equally applies to confidential employees. The confidential-employee rule justifies exclusion of confidential employees because in the normal course of their duties they become aware of management policies relating to labor relations. It must be stressed, however, that when the employee does not have access to confidential labor relations information, there is no legal prohibition against confidential employees from forming, assisting, or joining a union.

7.4e New CBA may include employees excluded from old CBA; Expired CBA may be Modified, not just Renewed

The employer and the union in an enterprise may negotiate and agree whom to cover in their CBA. And they are free to change their agreement: people excluded before may be included now, or vice versa.

8. SECURITY GUARDS MAY JOIN RANK-AND-FILE OR SUPERVISORS UNION

Under the old rules, security guards were barred from joining a labor organization of the rank-and-file. Under RA 6715, they may now freely join a labor organization of the rank-and-file or that of the supervisory union, depending on their rank.

________

Article 245-A. Effect of inclusion as members of employees outside the bargaining unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for

the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union. (Introduced as new provision by Section 9, Republic Act No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007).

________

Article 246. Non-abridgment of right to self-organization. – It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization.

Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Article 264 of this Code. (As amended by Batas Pambansa Bilang 70, May 1, 1980).

________

1. CONCEPT OF THE RIGHT TO SELF ORGANIZATION

This is a key article that offers an inclusionary definition of the right to self-organization (S.O.) by saying not what it is but what it includes. It includes at least two rights: (1) the right to form, join or assist labor organizations, and (2) the right to engage in lawful concerted activities. The “labor organization” may be a union or association of employees, as mentioned in Article 212(g). Its purposes may be collective bargaining (as stated in this Article) or dealing with the employer [as stated in Article 212(g)].

The right to form labor organization is twin to the right to engage in concerted activities.

It is worth noting, finally, that the right to self-organization is granted not only to employees but to “workers,” whether employed or not. In fact, constitutionally

speaking, the right to form associations or societies is a right of the “people,”

whether workers or not.

No “person”—inside or outside of government, employer or non-employer, unionist or non-unionist—may abridge these rights. If abridged in the workplace, the abridgment is termed ULP (unfair labor practice).

Article 246, is both (in mixed metaphors), the conceptual mother and the formidable fortress of the prohibition expounded in the next three articles.

________

Title VI

UNFAIR LABOR PRACTICES