Descripción de las cuentas RECURSOS POR RUBRO

Who may Unionize for the Purpose of Collective Bargaining

Q: How does the government  employees’  right  to  self- organization differ from that of the employees in the private sector? (1996)

A: There is no substantial difference of the right of self-

organization between workers in the private sector and those in the public sector. In the public sector, Executive Order No. 180, the purpose of self-organization is stated as "for the furtherance and protection of their interest." In the private sector, Art. 243 of the Labor Code states "for the purpose of collective bargaining", and "for the purpose of enhancing and defending their interests and for their mutual aid and protection." Furthermore, no less than the Constitution itself guarantees that ALL workers have the right to self-organization. (Sec. 3, Article 13, 1987 Constitution).

Q: Do workers have a right not to join a labor organization?

A: Yes. The constitutional right to self-organization has

two aspects, the right to join or form labor organizations and the right not to join said organization (Victoriano v. Elizalde Rope Worker’s  Union,  G.R.  No.  L-25246, September 12, 1974). Moreover, if they are members of a religious group whose doctrine forbids union membership, their right not to be compelled to become union members has been upheld. However, if the worker is not a "religious objector" and there is a union security clause, he may be required to join the union if he belongs to the bargaining unit. (Reyes v. Trajano, G.R. No. 84433, June 2, 1992).

Q: Do the following workers have the right to self- organization? Reasons/basis:

a. Employees of non-stock, non-profit organizations?

b. Alien employees? (2000) A:

a. Even employees of non-stock non-profit

organizations have the right to self-organization. This is explicitly provided for in Art. 243 of the Labor Code. A possible exception, however, are employee- members of non-stock, non-profit cooperatives. b. ALIEN EMPLOYEES with valid work permits may

exercise the right to self-organization on the basis of parity or reciprocity, that is, if Filipino workers in the aliens' country are given the same right. (Art. 269, Labor Code).

Q: Mang Bally, owner of a shoe repair shop with only nine (9) workers in his establishment, received proposals for collective bargaining from the Bally Shoe Union. Mang Bally refused to bargain with the workers for several reasons. First, his shoe business is just a service establishment. Second, his workers are paid on a piecework basis (i.e., per shoe repaired) and not on a time basis. Third, he has less than ten (10) employees in the establishment. Which reason or reasons is/are tenable? Explain briefly. (2002) A: None. First, Mang Bally's shoe business is a

commercial enterprise, albeit a service establishment. Second, the mere fact that the workers are paid on a piece-rate basis does not negate their status as regular employees. Payment by piece is just a method of compensation and does not define the essence of the relation. (Lambo v. NLRC, G.R. No. 111042, October 26, 1999). Third, the employees' right to self organization is not delimited by their number. The right to self- organization covers all persons employed in commercial, industrial and agricultural enterprises and in religious,

41

charitable, medical, or educational institutions whether operating for profit or not. (Art. 243, Labor Code).

Q: At what particular point does a labor organization acquire a legal personality?

a. On the date the agreement to organize the union is signed by the majority of all its members; or b. On the date the application for registration is

duly filed with the Department of Labor; or c. On the date appearing on the Certificate of

Registration; or

d. On the date the Certificate of Registration is actually issued; or

e. None of the above. Choose the correct answer. (2003)

A:

d.) On the date the Certificate of Registration is actually issued. Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration. (Art. 234, Labor Code).

Q: "Puwersa", a labor federation after having won in a certification election held in the company premises, sent a letter to respondent company reminding it of its obligation to recognize the local union. Respondent company replied that though it is willing, the rank-and-file employees had already lost interest in joining the local union as they had dissolved it. "Puwersa" argued that since it won in a certification election, it can validly perform its function as a bargaining agent and represent the rank-and-file employees despite the union's dissolution. Is the argument of "Puwersa" tenable? Decide with reasons. (2008)

A: A new provision, Article 239-A is inserted into the

Labor Code by RA 9481, as follows:

Art. 239-A. Voluntary Cancellation of

Registration. The registration of a legitimate labor organization may be cancelled by the organization itself. Provided that at least two- thirds of its general membership votes, in a meeting duly called for that purpose to dissolve the organization. Provided, further, that an application to cancel registration is thereafter submitted by the board of the organization, attested  to  by  the  president  thereof.”

If indeed the local union was dissolved in accordance with the above provision of the law, the argument of “Puwersa”  is  not  tenable.  This  is because  “Puwersa”  only   had the status of an agent, while the local union remained the basic unit of the association. (Liberty Cotton Mills Workers Union v. Liberty Cotton Mills, Inc., G.R. No. L- 33987, September 4, 1975.; cited in Filipino Pipe and Foundry Corp. v. NLRC, G.R. No. 115180, November 16, 1999).

Q: A supervisor's union filed a petition for certification election to determine the exclusive bargaining representative of the supervisory employees of Farmers Bank. Included in the list of supervisory employees attached to the petition are the Department Managers, Branch Managers,

Cashiers and Comptrollers. Farmers Bank questioned this list arguing that Department Managers, Branch Managers, Cashiers and Comptrollers inherently possess the powers enumerated in Art. 212, par. (m), of the Labor Code, i.e., the power and prerogative to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.

a. Is the contention of Farmers Bank correct? Discuss fully.

b. Is there any statutory basis for the petition of the union? Explain. (1995)

A:

a. The contention of the Farmers Bank is not correct, if, on examination of the actual powers exercised by the Department Managers, Bank Managers, Cashiers and Comptrollers, they are not vested with powers or prerogatives to lay down and execute management policies or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. If their powers are to carry out their duties and responsibilities in accordance with the policies promulgated by the Board of Directors of the Bank, or by external authorities, like the Central Bank, then, they are not managerial but may be supervisory personnel. It  is  the  nature  of  an  employee’s  functions   and not the nomenclature or title given to his job which determines whether he has a managerial status (Azucena, 2013).

b. There is statutory basis for the petition of the supervisors' union. Under the Labor Code, supervisors have the right to form and join unions, but only unions of supervisory employees.

Q: Solar Plexus Bar and Night Club allowed by tolerance fifty (50) Guest Relations Officers (GRO) to work without compensation in its establishment under the direct supervision of its Manager from 8:00 p.m. to 4:00 a.m. everyday, including Sundays and holidays. The GROs, however, are free to ply their trade elsewhere at anytime but once they enter the premises of the night club, they are required to stay up to closing time. The GROs earned their keep exclusively from commissions for food and drinks, and tips from generous customers. In time, the GROs formed the Solar Ugnayan ng mga Kababaihang Inaapi (SUKI); a labor union duly registered with DOLE. Subsequently, SUKI filed a petition for certification election in order to be recognized as the exclusive bargaining agent of its members. Solar Plexus opposed the petition for certification election on the singular ground of absence of employer- employee relationship between the GROs on one hand and the night club on the other hand. May the GROs form SUKI as a labor organization for purposes of collective bargaining? Explain briefly. (1999) A: Yes. Despite the work conditions agreed upon by the

owner  of  Solar  Plexus  and  the  GRO’s,  Art.  138  of  the  Labor   Code mandates that women who work in certain workplaces such as night clubs, beer houses, cocktail lounges, massage clinics or bars, who are under the effective control or supervision of an employer shall be considered as employees of such establishments, for purposes of labor and social legislation.

42

In the case at bar, SUKI, may form a labor organization for purposes of collective bargaining because in the eyes of the law they are employees of Solar Plexus; and as employees, the right to self-organization is granted by law.

Q: Philhealth is a government-owned and controlled corporation employing thousands of Filipinos. Because of the desire of the employees of Philhealth to obtain better terms and conditions of employment from the government, they formed the Philhealth Employees Association (PEA) and demanded Philhealth to enter into negotiations with PEA regarding terms and conditions of employment which are not fixed by law.

a. Are the employees of Philhealth allowed to self- organize and form PEA and thereafter demand Philhealth to enter into negotiations with PEA for better terms and conditions of employment? A: Yes. Employees of Philhealth are allowed to self-

organize under Section 8, Article III and Section 3, Article XIII of the Constitution which recognize the rights of all workers to self-organization. They cannot demand, however, for better terms and conditions of employment for the same are fixed by law (Art. 244, Labor Code), besides, their salaries are standardized by Congress. (Art. 276, Labor Code).

b. In case of unresolved grievances, can PEA resort to strikes, walkouts, and other temporary work stoppages to pressure the government to accede to their demands? (2014)

A: No. Although the right to organize implies the right to

strike, law may withhold said right. E.O. 180 is that law which withholds from government employees the right to strike. Hence, they cannot resort to strikes and similar concerted activities to compel concessions from the government.

Who Cannot Form, Join or Assist Labor Organizations

Q: Malou is the Executive Secretary of the Senior Vice- president of a bank while Ana is the Legal Secretary of the bank's lawyer. They and other executive secretaries would like to join the union of rank and file employees of the bank. Are they eligible to join the union? Why? Explain briefly. (2002)

A: No. They are confidential employees who, by the

nature of their functions, assist and act in confidential capacity to or have access to confidential matters of person who exercise managerial functions in the field of labor relations. As such the ineligibility of managerial employees to form or join labor unions equally applies to them. (Philips Industrial Development v. NLRC, G.R. No. 88957, June 25, 1992).

Note: Confidential employees are those who (1) assist or

act in a confidential capacity, (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee – that is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations. (Tunay na Pagkakaisa ng Manggagawa sa Asia

Brewery v. Asia Brewery, Inc., G.R. No. 162025, August 3, 2010).

Q: Do employees of a cooperative have a right to form a union? Explain briefly. (2002)

A: Employees who are members of a cooperative cannot

form a union because, as members, they are owners and owners cannot bargain with themselves. However, employees who are not members of the cooperative can form a union. (San Jose Electric Service Cooperative v. Ministry of Labor, G.R. No. 77231, May 31, 1989)

Note: Irrespective of the degree of their participation in

the actual management of the cooperative, all members thereof cannot form, assist or join a labor organization for the purpose of collective bargaining. (Benguet Electric Cooperative, Inc. v. Ferrer-Calleja, G.R. No. 79025, December 29, 1989).

Q: A, B, C and D (treasurer, accountant, elementary department Principal, and secretary of the Director, respectively), regular employees of a private educational institution, were administratively charged for their participation in a picket held in front of the campus after office hours. Several faculty members, non-academic staff and students joined the peaceful prayer rally organized by disgruntled employees to protest certain alleged abuses of the incumbent School Director. Subsequently, the rank- and-file employees succeeded in forming the first and only union of the School. During the investigation, the administration discovered that two (2) days prior to the rally, A, B, C and D attended the meeting of the School’s   employees’   association   which   planned   the   protest activity. Two well-known organizers/leaders of a national labor federation were also present. A, B, C and D were dismissed by the School on the ground of violating the Labor Code which prohibits managerial   employees   to   “join,   assist   or   form   any   labor   organization”.   Is   the   contention   of   the   School   tenable? Is the dismissal of A, B, C and D valid? Explain. (2004)

A: The dismissal of A, B, C and D on the ground that they violated the Labor Code provision which states that managerial employees "are not eligible to join, assist or form any labor organization" is not valid. The Labor Code does not provide for any sanction for the aforesaid acts. These acts could not be considered as just cause for the termination of employment, either.

ALTERNATIVE ANSWER:

A: The dismissal of the managerial employees is invalid.

The dismissal of the management employees because of union activities, no matter how erroneous or tenuous may be the basis of the exercise, is a violation of the constitutional and statutory guaranteed rights of self- organization, and an act of unfair labor practice. (Sec. 3, Art. XIII, Constitution; Art. 243, Labor Code. See also Art. 248 (a), Labor Code).

Q: On what ground or grounds may a union member be expelled from the organization? (2002)

A: Union members may be expelled from the labor

organization only on valid grounds provided for in the Union Constitution, By-Laws, or conditions for union membership. Example of valid reasons for expulsion: a) Refusal to pay union dues and special assessments; b)

43

Disloyalty to the union; and c) Violation of the constitution and by-laws of the union.

Q: Samahan ng mga Manggagawa sa Companya ng Tabaco (SMCT) filed a Petition for Certification Election among the supervisory employees of the Tabaco Manufacturing Company (Tabaco) before the NCR Regional Office of the Department of Labor and Employment. It alleged, among other things, that it is a legitimate labor organization, a duly chartered local of NAFLU; that Tabaco is an organized establishment; and that no certification election has been conducted within one year prior to the filing of its petition for certification election.

The Petition filed by SMCT showed that out of its 50 members, 15 were rank-and-filers and two (2) were managers.

Tabaco filed a Motion to Dismiss on the ground that SMCT union is composed of supervisory and rank- and-file employees and, therefore, cannot act as bargaining agent for the proposed unit. SMCT filed an opposition to the said Motion alleging that the infirmity, if any, in the membership of the union can be remedied in the pre-election conference thru the exclusion-inclusion proceedings wherein those employees who are occupying rank-and-file positions will be excluded from the list of eligible voters.

a. Should the Motion to Dismiss filed by the Tabaco be granted or denied? Explain.

A:

The Motion to Dismiss filed by Tabaco should be granted. According to the Labor Code (in Article 245), supervisory employees shall not be eligible for membership in a labor organization of rank and file employees but may join or form separate labor organizations of their own.

Because of the above-mentioned provision of the Labor Code, 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 a legitimate labor organization, it cannot possess the requisite personality to file a petition for certification election. (See Toyota Motor Philippines Corp. vs. Toyota Motor Philippines Corp. Labor Union, G.R. No. 121084, February 19, 1997).

b. Can the two (2) Managers be part of the bargaining unit? Why? (1999)

A: No, the two (2) Managers cannot be part of the

bargaining unit composed of supervisory employees. A bargaining unit must effect a grouping of employees who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining. (San Miguel Corp. Supervisors and Exempt Employees Union v. Laguesma, G.R. No. 110399, August 15, 1997).

The Labor Code (in Article 245) provides that managerial employees are not eligible to join, assist or form any labor organization. The above provision shows that managerial employees do not have the same interests as the supervisory employees which compose the bargaining unit where SMCT wishes to be the exclusive collective bargaining representative.

Q: What is the rule on the "equity of the incumbent"? (2015)

A: The Equity of the Incumbent Rule has it that all existing

federations or national unions, possessing all qualifications of an LLO and none of the grounds for CR cancellation, shall continue to maintain their existing affiliates regardless of their location or industry to which they belong. In case of dissociation, affiliates are not required to observe the one union-one industry rule. Who Cannot Form, Join or Assist Labor Organizations

Q: Which of the following groups does not enjoy the right to self-organization?

(A) those who work in a non-profit charitable institution

(B) those who are paid on a piece-rate basis

(C) those who work in a corporation with less than 10 employees

(D) those who work as legal secretaries. (2014) A: D. Those who works as legal secretaries (Tunay na

Pagkakaisa v. Asia Brewery, G.R. No. 162025, August 3, 2010).

Q: George is an American who is working as a consultant for a local IT company. The company has a union and George wants to support the union. How far can George go in terms of his support for the union? (2015)

A: George, as a general rule, is prohibited by Art. 270(a)

of the Labor Code from giving any donation, grant or other form of assistance, in cash or in kind, directly or indirectly to the Union. He can give a support only upon prior permission from the Secretary of Labor relative to “Trade  Union  activities”  as  defined  in  said  law.

George, in addition to his alien employment permit, must first prove that the country whereof he is a national recognizes the right of Filipinos working therein to organize. Under these conditions, he is allowed to support the existing union by joining it as to its increase its membership.

Bargaining Unit

Test to Determine the Constituency of an Appropriate Bargaining Unit

Q: The Ang Sarap Kainan Workers Union appointed Juan Javier, a law student, as bargaining representative. Mr. Javier is neither an employee of Ang Sarap Kainan Company nor a member of the union. Is the appointment of Mr. Javier as a bargaining representative in accord with law? Explain. (2000)

A: Yes, the law does not require that the bargaining

representative be an employee of the company nor an