UNFAIR LABOR PRACTICES

ART. 247. CONCEPT OF UNFAIR LABOR PRACTICE AND PROCEDURE FOR PROSECUTION THEREOF.UNFAIR LABOR PRACTICES VIOLATE THE CONSTITUTIONAL RIGHT OF WORKERS AND EMPLOYEES TO SELF-ORGANIZATION, ARE INIMICAL TO THE LEGITIMATE INTERESTS OF BOTH LABOR AND MANAGEMENT, INCLUDING THEIR RIGHT TO BARGAIN COLLECTIVELY AND OTHERWISE DEAL WITH EACH OTHER IN AN ATMOSPHERE OF FREEDOM AND MUTUAL RESPECT, DISRUPT INDUSTRIAL PEACE AND HINDER THE PROMOTION OF HEALTHY AND STABLE LABOR-MANAGEMENT RELATIONS.

CONSEQUENTLY, UNFAIR LABOR PRACTICES ARE NOT ONLYVIOLATIONS OF THE CIVIL RIGHTS OF BOTH LABOR AND MANAGEMENTBUT ARE ALSOCRIMINAL OFFENSES AGAINST THE STATE WHICH SHALL BE SUBJECT TO PROSECUTION AND PUNISHMENTAS HEREIN PROVIDED.

SUBJECT TO THE EXERCISE BY THE PRESIDENT OR BY THE SECRETARY OF LABOR AND EMPLOYMENT OF THE POWERS VESTED IN THEM BY ARTICLES 263 AND 264 OF THIS CODE, THECIVIL ASPECTS OF ALL CASES INVOLVING UNFAIR LABOR PRACTICES, WHICH MAY INCLUDECLAIMS FOR ACTUAL, MORAL, EXEMPLARY AND OTHER FORMS OF DAMAGES, ATTORNEYS FEES AND OTHER AFFIRMATIVE RELIEF,SHALL BE UNDER THEJURISDICTION OF THE LABOR ARBITERS.THE LABOR ARBITERS SHALL GIVE UTMOST PRIORITY TO THE HEARING AND RESOLUTION OF ALL CASES INVOLVING UNFAIR LABOR PRACTICES. THEY SHALL RESOLVE SUCH CASES WITHIN THIRTY (30) CALENDAR DAYS FROM THE TIME THEY ARE SUBMITTED FOR DECISION.

RECOVERY OF CIVIL LIABILITY IN THE ADMINISTRATIVE PROCEEDINGS SHALL BAR RECOVERY UNDER THE CIVIL CODE.

NO CRIMINAL PROSECUTION UNDER THIS TITLE MAY BE INSTITUTED WITHOUT A FINAL JUDGMENT FINDING THAT AN UNFAIR LABOR PRACTICE WAS COMMITTED, HAVING BEEN FIRST OBTAINED IN THE PRECEDING PARAGRAPH. DURING THE PENDENCY OF SUCH ADMINISTRATIVE PROCEEDING, THE RUNNING OF THE PERIOD OF PRESCRIPTION OF THE CRIMINAL OFFENSE HEREIN PENALIZED SHALL BE CONSIDERED INTERRUPTED: PROVIDED, HOWEVER, THAT THE FINAL JUDGMENT IN THE ADMINISTRATIVE PROCEEDINGS SHALL NOT BE BINDING IN THE CRIMINAL CASE NOR BE CONSIDERED AS EVIDENCE OF GUILT BUT MERELY AS PROOF OF COMPLIANCE OF THE REQUIREMENTS THEREIN SET FORTH.(AS AMENDED BY BATAS PAMBANSA BILANG 70, MAY 1, 1980 AND LATER FURTHER AMENDED BY SECTION 19, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

ELEMENTS [commission of ULP]:

Employment relationship

The act done is expressly defined in the Code as an act of ULP

Acts opposed to workers right to organize

PROSECUTION of ULP

-To prosecute ULP as CRIMINAL offense is not possible until after finality of judgment in the labor case, finding that the respondent indeed committed ULP

-Only SUBSTANTIAL evidence is required in the labor case in the NLRC

-JURISDICTION: concurrent jurisdictionof the MTC or RTC

-PRESCRIPTION of OFFENSE: 1 year

UNFAIR LABOR PRACTICES OF EMPLOYERS

ART. 248. UNFAIR LABOR PRACTICES OFEMPLOYERS.IT SHALL BE UNLAWFUL FOR AN EMPLOYER TO COMMIT ANY OF THE FOLLOWING UNFAIR LABOR PRACTICE:

1)TOINTERFERE WITH,RESTRAINORCOERCE EMPLOYEESIN THE EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION;

2)TO REQUIRE AS A CONDITION OF EMPLOYMENT THAT A PERSON OR AN EMPLOYEE SHALL NOT JOIN A LABOR ORGANIZATION OR SHALL WITHDRAW FROM ONE TO WHICH HE BELONGS;

3)TOCONTRACT OUT SERVICESOR FUNCTIONS BEING PERFORMED BY UNION MEMBERS WHEN SUCH WILL INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO SELF-ORGANIZATION;

4)TO INITIATE, DOMINATE, ASSIST OR OTHERWISE INTERFERE WITH THE FORMATION OR ADMINISTRATION OF ANY LABOR ORGANIZATION, INCLUDING THE GIVING OF FINANCIAL OR OTHER SUPPORT TO IT OR ITS ORGANIZERS OR SUPPORTERS;

5)TODISCRIMINATE IN REGARD TO WAGES, HOURS OF WORK AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT IN ORDER TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION.NOTHING IN THIS CODE OR IN ANY OTHER LAW SHALL STOP THE PARTIES FROM REQUIRING MEMBERSHIP IN A RECOGNIZED COLLECTIVE BARGAINING AGENT AS A CONDITION FOR EMPLOYMENT, EXCEPT THOSE EMPLOYEES WHO ARE ALREADY MEMBERS OF ANOTHER UNION AT THE TIME OF THE SIGNING OF THE COLLECTIVE BARGAINING AGREEMENT. EMPLOYEES OF AN APPROPRIATE BARGAINING UNIT WHO ARE NOT MEMBERS OF THE RECOGNIZED COLLECTIVE BARGAINING AGENT MAY BE ASSESSED A REASONABLE FEE EQUIVALENT TO THE DUES AND OTHER FEES PAID BY MEMBERS OF THE RECOGNIZED COLLECTIVE BARGAINING AGENT, IF SUCH NON-UNION MEMBERS ACCEPT THE BENEFITS UNDER THE COLLECTIVE BARGAINING AGREEMENT: PROVIDED, THAT THE INDIVIDUAL AUTHORIZATION REQUIRED UNDER ARTICLE 242, PARAGRAPH (O) OF THIS CODE SHALL NOT APPLY TO THE NON-MEMBERS OF THE RECOGNIZED COLLECTIVE BARGAINING AGENT;

6)TO DISMISS, DISCHARGE OR OTHERWISE PREJUDICE OR DISCRIMINATE AGAINST AN EMPLOYEE FOR HAVING GIVEN OR BEING ABOUT TO GIVE TESTIMONY UNDER THIS CODE;

7)TO VIOLATE THE DUTY TO BARGAIN COLLECTIVELY AS PRESCRIBED BY THIS CODE;

8)TO PAY NEGOTIATION OR ATTORNEYS FEES TO THE UNION OR ITS OFFICERS OR AGENTS AS PART OF THE SETTLEMENT OF ANY ISSUE IN COLLECTIVE BARGAINING OR ANY OTHER DISPUTE; OR

9)TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT. THE PROVISIONS OF THE PRECEDING PARAGRAPH NOTWITHSTANDING, ONLY THE OFFICERS AND AGENTS OF CORPORATIONS, ASSOCIATIONS OR PARTNERSHIPS WHO HAVE ACTUALLY PARTICIPATED IN, AUTHORIZED OR RATIFIED UNFAIR LABOR PRACTICES SHALL BE HELD CRIMINALLY LIABLE. (AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST 21, 1981)

CONDITIONS PRESEDENT to ULP CHARGE

Injured party comes within the definition of employee

The act charged as ULP must fall under the prohibitions of Art. 248 (ACTS OF EMPLOYER) OR Art. 249 (acts of the union)

BY:Gang Casio

UNFAIR LABOR PRACTICES of EMPLOYERS

Unlawful acts or acts of ULP

1.interference.to interfere with the right of self-organization of employees

Lockout = ULPwhen it is used as a means of dissuading the employees from exercising their rights under this act

TEST of Employers Remarks:TOTALITY OF CONDUCT DOCTRINE. The culpability of employers remarks have to be evaluated not only on the basis of their implications, but against the background of and in conjunction with collateral circumstances.

Test of Interference whether the employer has engaged in conduct which it may be reasonably be said tends to intefere with the free exercise of employees right.

2.yellow dog condition.to require as a condition of employment, that a person should not join a labor organizations or shall withdraw therefrom

Yellow Dog Contract;Badges

1)a representation by the employee that he isnot a member of a labor union

2)a promise by the employeenot to join a labor union

3)a promise by the employee that,upon joining a labor union, he will quit his employment

3.contracting out.to contract-out functions performed by union members in order to interfere with their right of self-organization

Requisites for Valid Contracting Out

1)made in good faith

2)the contracting out must not have been resorted to, to circumvent the law

3)must not have been the result of malicious or arbitrary action

RUNAWAY shop = ULP.An industrial plant moved by its owners from one location to another to escape union labor regulations or state laws.

Constructive Discharge when the employer prohibits employees from exercising their rights under the act, on pain of discharge, and the employee quits as a result of the prohibition, a constructive discharge occurs.

4.company unionism.support a union in a multi-union establishment.May be manifested in the following manner:

1)initiation of the company union idea

2)financial supportto the union

3)employer encouragement and assistance

4)supervisory assistance

5.discrimination for or against union membership.discriminate union membership.Union Security Clause is valid.

Mass Layoff = ULPwhen only union members were laid off and there is no economic reason to do so.

Sale of Business = ULPif made in bad faith and used only to get rid of the employees who were members of the Union.If the buyer makes substantial NONDISCRIMINATORY personnel changes and changes in the operational structure of the business, he is not a successor employer and need not bargain with the incumbent union and the dismissal does not constitute ULP

Principal Elements:the discrimination committed by the employer must be in regard to thehireortenure of employmentor any term or condition of employment to encourage or discourage membership in any labor organization.

Discrimination by Blacklisting. Blacklist is a list of persons marked out for special avoidance, antagonism or enmity on the part of those who prepare the list, or those among whom it is intended to circulate

Indirect DiscriminationPresent in the Following Events:

1)the dismissal of a laborer on account of union activities of his brother

2)the discharge of an employee due to the union activities of his wife

3)the discharge of wife due to the union activities of the husband

Union Security Clause; Kinds

1)Closed Shop only union members can be hired by the company and they must remain as such to retain employment in the companyEXCEPT

a.any employee who is a member of religious organization which prohibits its members from joining labor unions

b.employee already in a service and already a member of another union

c.confidential employees who are excluded from the rank and file bargaining unit

d.employees excluded from the closed shop by express terms of the agreement

2)Union Shop nonmembers may be hired but to retain employment must become union members after a certain period

3)Modified Union Shop employees who are not union members at the time of signing the contract need not join the union, but all workers hired thereafter must join

4)Maintenance of membership shop no employee is compelled to join the union, but all present or future members must, as a condition of employment, remain in good standing in the union

5)Exclusive Bargaining Shop the union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not

6)Bargaining for members only the union is recognized as the bargaining agent only for its own member

7)Agency shop an agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members.

Agency Fee no authorization is required based on the doctrine ofquasi-contract

6.because of testimony.dismiss or discriminate an employee for having given or being about to give testimony under this code

7.violates the duty to bargain or Bargaining with the Minority Union constitutes ULP as a refusal to collectively bargain

Situations when the duty to Bargain Exists

a) the duty to bargain means in essence the mutual obligation to meet and convene for the purpose of:

b)to negotiate an agreement ofmandatory subjectslike: 1wages, 2hours of work and 3all other terms and conditions of employment including for adjusting grievances or questions arising under such agreement

c)to execute a contract incorporating such agreement if requested by either party

d)the obligation not to terminate or modify the CBA during its lifetime

Forms of Violation of the Duty to Bargain

1)failure or refusal to meet and convene to bargain in good faith, an employer must not only meet and confer with the union which represents his employees, but also must recognize the union for the purpose of collective bargaining agreement

2)evading themandatory subjectsof bargaining

1.wages and other types of compensation including merit increases

2.working hours and working days, including work shifts

3.vacations and holidays

4.bonuses

5.pensions and retirement plans

6.seniority

7.transfer

8.lay-offs

9.employee workloads

10.work rules and regulations

11.rent of company houses

12.union security agreement

3)bad faith in bargaining including refusal to execute a Collective Bargaining Agreement, if requested

Good Faith Bargaining demands more than sterile and repetitive discussion of formalities precluding actual negotiation, more than formal replies which constitute in effect a refusal to treat with the union and more than a willingness to enter upon a sterile discussion of union-management differences

Badges of Bad Faith Bargaining

i.when the employer fails to vest its negotiators with sufficient authority to make agreement

ii.when after 1 month of submittal of Unions proposal, the employer has not made any counter proposal

iii.Surface Bargaining a sophisticated pretense in the form of apparent bargaining

iv.Inflexible bargaining by the union

v.Boulwarism or the take-it-or-leave-it bargaining

vi.Refusal to furnish, upon request, financial information of the company

4)gross violation of CBA [flagrant]s

Deadlock or Impasse presupposes a reasonable effort at good-faith bargaining which, despite noble intentions, does not conclude in an agreement between the parties.A deadlock does not mean an end of bargaining.It signals rather the need to seek assistance of a 3rd party.

Duty to Bargain and Sale of Business:if there is a substantial and material alteration in the employing enterprise, the new employer need not bargain with the incumbent union.If there is none, the new employer needs to bargain with the incumbent union.

Factors to determine Substantial Continuity of the Operation

a)the new employeruses the same plant

b)he has thesame or substantially the same workforce

c)the same jobs exist under the same working conditions

d)he employs the same supervisors

e)he uses the same machinery, equipment and methods

NOTE:an employer does not violate the duty to bargain when

a)the denial of the proposal isdue to economic lossesas long as the employer continues to negotiate

b)adoption of an adamant bargaining position in good faith

c)refusal to bargain over demands for commission of ULP

d)refusal to bargain during period of illegal strike

8.paid negotiation.to pay negotiation or attorneys fees to the union as part of the settlement

9.GROSSLY violate the CBA.Must be gross and flagrant according to Art. 261

Criminal Liability: only officers and agents who haveactually participated in, authorized or ratified ULP

REMEDIES IN ULP CASES

1.Cease and Desist Order issued by the RTC

2.mandatory injunction

3.disestablishment of company union

4.ULP is not subject to compromise

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

ART. 249. UNFAIR LABOR PRACTICES OFLABOR ORGANIZATIONS. IT SHALL BE UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION, ITS OFFICERS, AGENTS OR REPRESENTATIVES:

1)TO RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION. HOWEVER, A LABOR ORGANIZATION SHALL HAVE THE RIGHT TO PRESCRIBE ITS OWN RULES WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP;

2)TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN EMPLOYEE, INCLUDING DISCRIMINATION AGAINST AN EMPLOYEE WITH RESPECT TO WHOM MEMBERSHIP IN SUCH ORGANIZATION HAS BEEN DENIED OR TO TERMINATE AN EMPLOYEE ON ANY GROUND OTHER THAN THE USUAL TERMS AND CONDITIONS UNDER WHICH MEMBERSHIP OR CONTINUATION OF MEMBERSHIP IS MADE AVAILABLE TO OTHER MEMBERS;

3)TO VIOLATE THE DUTY, OR REFUSE TO BARGAIN COLLECTIVELY WITH THE EMPLOYER, PROVIDED IT IS THE REPRESENTATIVE OF THE EMPLOYEES;

4)TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO PAY OR DELIVER OR AGREE TO PAY OR DELIVER ANY MONEY OR OTHER THINGS OF VALUE, IN THE NATURE OF AN EXACTION, FOR SERVICES WHICH ARE NOT PERFORMED OR NOT TO BE PERFORMED, INCLUDING THE DEMAND FOR FEE FOR UNION NEGOTIATIONS;

5)TO ASK FOR OR ACCEPT NEGOTIATION OR ATTORNEYS FEES FROM EMPLOYERS AS PART OF THE SETTLEMENT OF ANY ISSUE IN COLLECTIVE BARGAINING OR ANY OTHER DISPUTE; OR

6)TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT.

THE PROVISIONS OF THE PRECEDING PARAGRAPH NOTWITHSTANDING, ONLY THE OFFICERS, MEMBERS OF GOVERNING BOARDS, REPRESENTATIVES OR AGENTS OR MEMBERS OF LABOR ASSOCIATIONS OR ORGANIZATIONSWHO HAVE ACTUALLY PARTICIPATED IN, AUTHORIZED OR RATIFIED UNFAIR LABOR PRACTICES SHALL BE HELD CRIMINALLY LIABLE.(AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST 21, 1981)

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

Featherbedding name given to employee practices which create or spread employment by unnecessarily maintaining or increasing the number of employees used, or the amount of time consumed to work on a particular job.

1.to ask for or accept negotiations or attorneys fees from employers as part of the settlement

2.to violate the CBA

STRIKES AND LOCKOUTS

ART. 263. STRIKES, PICKETING AND LOCKOUTS.

a.IT IS THE POLICY OF THE STATE TO ENCOURAGE FREE TRADE UNIONISM AND FREE COLLECTIVE BARGAINING.

b.WORKERS SHALL HAVE THE RIGHT TO ENGAGE IN CONCERTED ACTIVITIES FOR PURPOSES OF COLLECTIVE BARGAINING OR FOR THEIR MUTUAL BENEFIT AND PROTECTION. THE RIGHT OF LEGITIMATE LABOR ORGANIZATIONS TO STRIKE AND PICKET AND OF EMPLOYERS TO LOCKOUT, CONSISTENT WITH THE NATIONAL INTEREST, SHALL CONTINUE TO BE RECOGNIZED AND RESPECTED. HOWEVER, NO LABOR UNION MAY STRIKE AND NO EMPLOYER MAY DECLARE A LOCKOUT ON GROUNDS INVOLVING INTER-UNION AND INTRA-UNION DISPUTES.

c.IN CASE OF BARGAINING DEADLOCKS, THE DULY CERTIFIED OR RECOGNIZED BARGAINING AGENT MAY FILE A NOTICE OF STRIKE OR THE EMPLOYER MAY FILE A NOTICE OF LOCKOUT WITH THE MINISTRY AT LEAST 30 DAY BEFORE THE INTENDED DATE THEREOF. IN CASES OF UNFAIR LABOR PRACTICE, THE PERIOD OF NOTICE SHALL BE 15 DAYS AND IN THE ABSENCE OF A DULY CERTIFIED OR RECOGNIZED BARGAINING AGENT, THE NOTICE OF STRIKE MAY BE FILED BY ANY LEGITIMATE LABOR ORGANIZATION IN BEHALF OF ITS MEMBERS. HOWEVER, IN CASE OF DISMISSAL FROM EMPLOYMENT OF UNION OFFICERS DULY ELECTED IN ACCORDANCE WITH THE UNION CONSTITUTION AND BY-LAWS, WHICH MAY CONSTITUTE UNION BUSTING, WHERE THE EXISTENCE OF THE UNION IS THREATENED, THE 15-DAY COOLING-OFF PERIOD SHALL NOT APPLY AND THE UNION MAY TAKE ACTION IMMEDIATELY.(AS AMENDED BY EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

d.THE NOTICE MUST BE IN ACCORDANCE WITH SUCH IMPLEMENTING RULES AND REGULATIONS AS THE MINISTER OF LABOR AND EMPLOYMENT MAY PROMULGATE.

e.DURING THE COOLING-OFF PERIOD, IT SHALL BE THE DUTY OF THE MINISTRY TO EXERT ALL EFFORTS AT MEDIATION AND CONCILIATION TO EFFECT A VOLUNTARY SETTLEMENT. SHOULD THE DISPUTE REMAIN UNSETTLED UNTIL THE LAPSE OF THE REQUISITE NUMBER OF DAYS FROM THE MANDATORY FILING OF THE NOTICE, THE LABOR UNION MAY STRIKE OR THE EMPLOYER MAY DECLARE A LOCKOUT.

f.A DECISION TO DECLARE A STRIKE MUST BE APPROVED BY A MAJORITY OF THE TOTAL UNION MEMBERSHIP IN THE BARGAINING UNIT CONCERNED, OBTAINED BY SECRET BALLOT IN MEETINGS OR REFERENDA CALLED FOR THAT PURPOSE. A DECISION TO DECLARE A LOCKOUT MUST BE APPROVED BY A MAJORITY OF THE BOARD OF DIRECTORS OF THE CORPORATION OR ASSOCIATION OR OF THE PARTNERS IN A PARTNERSHIP, OBTAINED BY SECRET BALLOT IN A MEETING CALLED FOR THAT PURPOSE. THE DECISION SHALL BE VALID FOR THE DURATION OF THE DISPUTE BASED ON SUBSTANTIALLY THE SAME GROUNDS CONSIDERED WHEN THE STRIKE OR LOCKOUT VOTE WAS TAKEN. THE MINISTRY MAY, AT ITS OWN INITIATIVE OR UPON THE REQUEST OF ANY AFFECTED PARTY, SUPERVISE THE CONDUCT OF THE SECRET BALLOTING. IN EVERY CASE, THE UNION OR THE EMPLOYER SHALL FURNISH THE MINISTRY THE RESULTS OF THE VOTING AT LEAST SEVEN DAYS BEFORE THE INTENDED STRIKE OR LOCKOUT, SUBJECT TO THE COOLING-OFF PERIOD HEREIN PROVIDED.(AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST 21, 1981 AND FURTHER AMENDED BY EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

g.WHEN, IN HIS OPINION, THERE EXISTS A LABOR DISPUTE CAUSING OR LIKELY TO CAUSE A STRIKE OR LOCKOUT IN AN INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST, THE SECRETARY OF LABOR AND EMPLOYMENT MAY ASSUME JURISDICTION OVER THE DISPUTE AND DECIDE IT OR CERTIFY THE SAME TO THE COMMISSION FOR COMPULSORY ARBITRATION. SUCH ASSUMPTION OR CERTIFICATION SHALL HAVE THE EFFECT OF AUTOMATICALLY ENJOINING THE INTENDED OR IMPENDING STRIKE OR LOCKOUT AS SPECIFIED IN THE ASSUMPTION OR CERTIFICATION ORDER. IF ONE HAS ALREADY TAKEN PLACE AT THE TIME OF ASSUMPTION OR CERTIFICATION, ALL STRIKING OR LOCKED OUT EMPLOYEES SHALL IMMEDIATELY RETURN-TO-WORK AND THE EMPLOYER SHALL IMMEDIATELY RESUME OPERATIONS AND READMIT ALL WORKERS UNDER THE SAME TERMS AND CONDITIONS PREVAILING BEFORE THE STRIKE OR LOCKOUT. THE SECRETARY OF LABOR AND EMPLOYMENT OR THE COMMISSION MAY SEEK THE ASSISTANCE OF LAW ENFORCEMENT AGENCIES TO ENSURE COMPLIANCE WITH THIS PROVISION AS WELL AS WITH SUCH ORDERS AS HE MAY ISSUE TO ENFORCE THE SAME.

IN LINE WITH THE NATIONAL CONCERN FOR AND THE HIGHEST RESPECT ACCORDED TO THE RIGHT OF PATIENTS TO LIFE AND HEALTH, STRIKES AND LOCKOUTS IN HOSPITALS, CLINICS AND SIMILAR MEDICAL INSTITUTIONS SHALL, TO EVERY EXTENT POSSIBLE, BE AVOIDED, AND ALL SERIOUS EFFORTS, NOT ONLY BY LABOR AND MANAGEMENT BUT GOVERNMENT AS WELL, BE EXHAUSTED TO SUBSTANTIALLY MINIMIZE, IF NOT PREVENT, THEIR ADVERSE EFFECTS ON SUCH LIFE AND HEALTH, THROUGH THE EXERCISE, HOWEVER LEGITIMATE, BY LABOR OF ITS RIGHT TO STRIKE AND BY MANAGEMENT TO LOCKOUT. IN LABOR DISPUTES ADVERSELY AFFECTING THE CONTINUED OPERATION OF SUCH HOSPITALS, CLINICS OR MEDICAL INSTITUTIONS, IT SHALL BE THE DUTY OF THE STRIKING UNION OR LOCKING-OUT EMPLOYER TO PROVIDE AND MAINTAIN AN EFFECTIVE SKELETAL WORKFORCE OF MEDICAL AND OTHER HEALTH PERSONNEL, WHOSE MOVEMENT AND SERVICES SHALL BE UNHAMPERED AND UNRESTRICTED, AS ARE NECESSARY TO INSURE THE PROPER AND ADEQUATE PROTECTION OF THE LIFE AND HEALTH OF ITS PATIENTS, MOST ESPECIALLY EMERGENCY CASES, FOR THE DURATION OF THE STRIKE OR LOCKOUT. IN SUCH CASES, THEREFORE, THE SECRETARY OF LABOR AND EMPLOYMENT MAY IMMEDIATELY ASSUME, WITHIN TWENTY FOUR (24) HOURS FROM KNOWLEDGE OF THE OCCURRENCE OF SUCH A STRIKE OR LOCKOUT, JURISDICTION OVER THE SAME OR CERTIFY IT TO THE COMMISSION FOR COMPULSORY ARBITRATION. FOR THIS PURPOSE, THE CONTENDING PARTIES ARE STRICTLY ENJOINED TO COMPLY WITH SUCH ORDERS, PROHIBITIONS AND/OR INJUNCTIONS AS ARE ISSUED BY THE SECRETARY OF LABOR AND EMPLOYMENT OR THE COMMISSION, UNDER PAIN OF IMMEDIATE DISCIPLINARY ACTION, INCLUDING DISMISSAL OR LOSS OF EMPLOYMENT STATUS OR PAYMENT BY THE LOCKING-OUT EMPLOYER OF BACKWAGES, DAMAGES AND OTHER AFFIRMATIVE RELIEF, EVEN CRIMINAL PROSECUTION AGAINST EITHER OR BOTH OF THEM.

THE FOREGOING NOTWITHSTANDING, THE PRESIDENT OF THE PHILIPPINES SHALL NOT BE PRECLUDED FROM DETERMINING THE INDUSTRIES THAT, IN HIS OPINION, ARE INDISPENSABLE TO THE NATIONAL INTEREST, AND FROM INTERVENING AT ANY TIME AND ASSUMING JURISDICTION OVER ANY SUCH LABOR DISPUTE IN ORDER TO SETTLE OR TERMINATE THE SAME.

h.BEFORE OR AT ANY STAGE OF THE COMPULSORY ARBITRATION PROCESS, THE PARTIES MAY OPT TO SUBMIT THEIR DISPUTE TO VOLUNTARY ARBITRATION.

i.THE SECRETARY OF LABOR AND EMPLOYMENT, THE COMMISSION OR THE VOLUNTARY ARBITRATOR SHALL DECIDE OR RESOLVE THE DISPUTE, AS THE CASE MAY BE. THE DECISION OF THE PRESIDENT, THE SECRETARY OF LABOR AND EMPLOYMENT, THE COMMISSION OR THE VOLUNTARY ARBITRATOR SHALL BE FINAL AND EXECUTORY TEN (10) CALENDAR DAYS AFTER RECEIPT THEREOF BY THE PARTIES.(AS AMENDED BY SECTION 27, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

STRIKE

STRIKE a cessation of work by employees in an effort to get more favorable terms for themselves, or as a concerted refusal by employees to do any work for their employer, or to work at their customary rate of speed, until the object of the strike is attained by the employers granting the demanded concession

Strike Area the 1establishment, 2warehouses, 3depots, 4plants, 5offices, 6including the sites or premises used as runaway shops of the employer, 7as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment

Characteristics of a Strike

1.there is established relationship between the strikers and the person(s) against whom the strike is called

2.the relationship must be one of employer and employee

3.the existence of a dispute between the parties and the utilization by labor of the weapon of concerted refusal to work as a means of persuading, or coercing compliance with the working mens demands

4.the contention advanced by the workers that although work ceases, the employment relation is deemed to continue albeit in a state of belligerent suspension

5.there is work stoppage, which stoppage is temporary

6.the work stoppage is done through concerted action of the employees

TheSTRIKING GROUP IS A LLOand, in case of bargaining deadlock, is the employees sole bargaining representative

LOCK OUT

the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute; an employers act excluding employees who are union members form his plant

Requisites of Lock-Out

1.notice of intention to declare a strike/lockout has been filed with the DOLE

2.at least 30 days has elapsed since the filing of the notice before the lockout is declared

3.an impasse has resulted in the negotiations;Other Grounds:

a.in anticipation of a threatened strike, where motivated by economic considerations

b.in response to unprotected strike or walkout

c.in response to a whipsaw strike

4.the strike/lockout is not discriminatory

Kinds of Strikes

1.General Strike extends over a whole community, province, state or country

2.Local Strike one undertaken by workers in a particular enterprise, locality or occupation

3.Sit-Down Strike when a group of employees or other interest in obtaining a certain objective in a particular business forcibly take over possession of the property of such business, established themselves within the plant, stop its production and refuse access to the owners or to the others desiring to work.

4.Slowdown a willful reduction in the rate of work by a group of employees for the purpose of restricting the output of the employer (illegal strike)

5.partial strike / quickie strike intermittent unannounced work stoppage, including slowdowns, unauthorized extension of rest periods, and walkouts for portions of a shift or for entire shifts (illegal strike)

6.primary strike one declared by the employees who have a direct and immediate interest, whether economic or otherwise, in the subject of the dispute, which exists between them and their employer

7.secondary strike refers to a coercive measure adopted by workers against an employer connected by product or employment with alleged ULP

8.ECONOMIC STRIKE intended to force wage and other concessions from the employer which he is not required by law to grant

9.ULP STRIKE called against ULP of the employer usually for the purpose of making him desist from further committing such practices

Strike / Lockoutmay legally be held because of either or both

1.There must be aLabor Dispute includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relations of employer and employee

2.theGroundsmust be

a)a CBA deadlock (economic)

b)an ULP act of the employer/union

NOTE:

1.NO UNION may Strike nor Employer declare a lockout on grounds involving inter-union and intra-union disputes

2.it shall be the duty of the striking union or locking out employer to provide and maintain an effective skeletal workforce of Medical and Other Health Personnel

Illegal Strikes

1.sympathetic strike

2.welga ng bayan

3.Legality in Strikes: until all the remedies and negotiations looking toward the adjustment or settlement of labor disputes have been exhausted, the law does not look with favor upon resort to radical measures, the pernicious consequences of which transcend the rights of the immediate parties.

Protection to the right to Strike

1.it is generally not subject to labor injunction or restraining order

2.employees may not be discriminated against merely because they have exercised the right to strike

3.the use of strike-breakers is prohibited

Strike-Breaker any person who obstructs, impedes, or interferes with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy affecting

a.Wages, hours or conditions of work

b.in the exercise of the right of self-organization or Collective Bargaining

4.mere participation in a strike does not sever the employment relationship

Striking Employees may advice or persuade others to quit work and join in the strike, so long as contractual rights are not invaded and that they may advice and persuade others not to engage their services to the employer against whom the strike is directed

STATUS OF STRIKERS

The relationship existing between employer and employee is not necessarily terminated by a strike BUT is not entitled to Wage during the strike PROVIDED THAT

a)the strike is in connection to a current labor dispute

b)where the strike is the result of ULP

Obligation of the Employer during a legal strike

a)the employers obligation to bargain collectively in good faith with his employees continues notwithstanding the fact that the employees are on strike

b)the employer is under an obligation to reinstate striking employees upon termination of the strike, without discriminating against those more actively engaged in union activities

Characteristics of anIllegal Strike

1.is contrary to specific prohibition of law

a)Government Employees may not Strike their redress is to petition the congress for the betterment of the terms and conditions of employment OR may do so in their FREE TIME

b)Strike must be doneonly after exhaustion of the Grievance Procedure and After Arbitration

2.violates specific requirement of law

a)Notice of Strike Notice in the prescribed form filed with the NCMB (DOLE) by the LLO. (individual notices to strike did not conform with the notice rule)

b)Decision to declare a Strike (Strike Vote)must be approved by a Majority of the Total UNION membership in the bargaining unit concerned.

Decision to declare a Lockoutmust be approved by a majority of the board of directors of the corporation

Strike Vote Report.The result of the Vote must be submitted to the Minister of Laborwithin 7 daysfrom the date of voting before the cooling-off period commences. (a strike without SVR is illegal)

c)Cooling-off Period

Cause of Strike

Cool-off Period

Economic Grounds / Bargaining Deadlock

30 days

ULP Cases

15 days

Union Busting

No cool-off period

Union Busting dismissal from employment of union officers duly elected where the existence of the union is threatened

Elements of Union Busting

a)the union officers are being dismissed

b)those officers are the only duly elected in accordance with the union constitution and by-laws

c)the existence of the union is threatened

3.is declared for an unlawful purpose, such as inducing the employer to commit an ULP against non-union employees

Lawful Purpose of the Strike

a)Collective Bargaining Deadlock the situation between the labor and the management of the company where there is failure in the collective bargaining negotiations resulting in a stalemate

b)ULP by Employer Test in determining the existence of ULP

1)objectively, when the strike is declared in protest of ULP which is found to have been actually committed

2)subjectively, when a strike is declared in protest of what the union believed to be ULP committed by management, and the circumstances warranted such belief in good faith, although found subsequently as not committed (Good Faith Strike).This further presupposes that the procedural requirements have been complied.

b)Union Recognition Strike -to Compel Recognition of and Bargaining with the Majority Union is VALID.However if there is a strike for union recognition without having proven majority status, it is INVALID.

Conversion Doctrine what had begun as a strike over bargaining demands became an ULP when it prolonged by the unions vote to protest the employers outright termination of strikers seeking re-instatement

Non-Strikeable Issues

1.Physical rearrangement of office

2.companys sales evaluation policy

3.salary distortion under the Wage Rationalization Act

4.employsunlawful meansin the pursuit of its objective

a)Picketing; No person engaged in picketing shall

1)Commit any act of violence, coercion or intimidation

2)obstruct the free ingress to or egress from the employers premises for lawful purposes

3)obstruct public thorough fares

b)Use of Violence, Force or Threatto pursue labor rights

5.is declared in violation of an existing injunction

a)Strike During Arbitration Illegal

b)Strike During Mediation illegal

c)Strike in violation of a Court Order Illegal

National Interest Cases Automatic Injunction and Return-to-work Order.The President and the Secretary of Labor shall determine which cases are considered of National Interest and shall assume jurisdiction. (e.g. Banking, Electric Company, etc.)

a)Assumption of Jurisdictiondoes not require prior notice to the parties.Necessarily, the authority to assume jurisdiction over the said labor dispute must include and extend to all questions and controversies arising therefrom, including cases over which the labor arbiter has exclusive jurisdiction (Interphil Lab Union v. Interphil Inc)

b)A national interest dispute may be certified to the NLRC even before a strike is declared as long as there is an industrial dispute

c)The issuance of anAssumption or Certification Orderswhich are executory in character are to be strictly complied with by the parties.Once an assumption/certification order is issued, strikes are enjoined, or if one has already taken place, all strikers shall immediately return to work. (48 hours maximum).It is immediately executory.

d)Defiance of a RTWOis a ground for loss of the employment status of any striking union officer or member.The moment a worker defies a RTWO, he is deemed to have abandoned his job;ABAONDONMENT; Requisites:

1)The absence of just and valid cause

2)there is an intention to abandon or defy

3)some overt act from which it may be inferred that the employee has no more interest in working

e)Voluntary Return to Work when the officers returned back to work after the strike, such return did not imply the waiver of the original demands

f)Appeal in cases of Assumption of Jurisdiction.May be appealed to the CA throughcertiorari.Example of Grave Abuse of Discretion: when the Secretary imposed a stipulation which even the union did not ask for.

6.is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause.

Note:

a)Agreement not to strike is only applicable to economic strikes and NOT to ULP strikes.

b)A no-strike clause is binding not only upon the union, but also upon its individual members

PICKETING AND OTHER CONCERTED ACTIONS

Picketinginvolves the presence of striking workers or their union brothers who pace back and forth before the place of business of an employer considered unfair to organized labor, in the hope of being able to persuade peacefully other workers not to work in the establishment and customers not to do business there.

a)Picket without strike Valid.

b)Picketing at Home the picketing of a private home in a residential district is generally held improper even when the pickets are domestic servants

c)Picketing must be peaceful

Other Concerted Activities

1.Collective letter

2.publicity

3.placards and banners

4.speeches, music and broadcasts

BOYCOTT a combination to harm one person by coercing others to harm him that is, a combination of many to cause a loss to one person by causing others, against their will, to withdraw from him their beneficial business intercourse through threats that unless others do so, the many will cause similar loss to him or then.

Kinds of Boycott

1.Primary Boycott applied directly and alone to the offending person by withdrawing from him all business relations on the part of the organization that initiated the boycott

2.Secondary Boycott a combination not merely to refrain from dealing with a person, or to advice or by peaceable means persuade his customers to refrain, but to exercise coercive pressure upon such customers, actual or prospective, in order to cause them to withhold or withdraw patronage from him through fear of less or damage to themselves should they deal with him

Factors to be Considered to Determine the Lawfulness of a Boycott

a)the means and methods employed- only a boycott that is free from violence or malevolence is held to be lawful

b)the ends intended to be accomplished

1.illegal when its purpose is to require the employer to coerce his employees to pay their back dues to the union

2.to compel the payment by an employee of a fine or other penalties

3.to compel an employee to refrain from working

4.to compel employment of more help than is necessary

5.to compel one to sign a contract

6.to compel an employer to refrain from issuing new process or machinery

Liability incase of Illegal Boycott:the person as well as all those who have combined against him is liable PROVIDED there is a causal connection between the acts complained of and the damage suffered

ART. 264. PROHIBITED ACTIVITIES.

a.NO LABOR ORGANIZATION OR EMPLOYER SHALL DECLARE A STRIKE OR LOCKOUT WITHOUT FIRST HAVING BARGAINED COLLECTIVELY IN ACCORDANCE WITH TITLE VII OF THIS BOOK OR WITHOUT FIRST HAVING FILED THE NOTICE REQUIRED IN THE PRECEDING ARTICLE OR WITHOUT THE NECESSARY STRIKE OR LOCKOUT VOTE FIRST HAVING BEEN OBTAINED AND REPORTED TO THE MINISTRY.

NO STRIKE OR LOCKOUT SHALL BE DECLARED AFTER ASSUMPTION OF JURISDICTION BY THE PRESIDENT OR THE MINISTER OR AFTER CERTIFICATION OR SUBMISSION OF THE DISPUTE TO COMPULSORY OR VOLUNTARY ARBITRATION OR DURING THE PENDENCY OF CASES INVOLVING THE SAME GROUNDS FOR THE STRIKE OR LOCKOUT.

ANY WORKER WHOSE EMPLOYMENT HAS BEEN TERMINATED AS A CONSEQUENCE OF ANY UNLAWFUL LOCKOUT SHALL BE ENTITLED TO REINSTATEMENT WITH FULL BACKWAGES. ANY UNION OFFICER WHO KNOWINGLY PARTICIPATES IN AN ILLEGAL STRIKE AND ANY WORKER OR UNION OFFICER WHO KNOWINGLY PARTICIPATES IN THE COMMISSION OF ILLEGAL ACTS DURING A STRIKE MAY BE DECLARED TO HAVE LOST HIS EMPLOYMENT STATUS: PROVIDED, THAT MERE PARTICIPATION OF A WORKER IN A LAWFUL STRIKE SHALL NOT CONSTITUTE SUFFICIENT GROUND FOR TERMINATION OF HIS EMPLOYMENT, EVEN IF A REPLACEMENT HAD BEEN HIRED BY THE EMPLOYER DURING SUCH LAWFUL STRIKE.

b.NO PERSON SHALL OBSTRUCT, IMPEDE, OR INTERFERE WITH, BY FORCE, VIOLENCE, COERCION, THREATS OR INTIMIDATION, ANY PEACEFUL PICKETING BY EMPLOYEES DURING ANY LABOR CONTROVERSY OR IN THE EXERCISE OF THE RIGHT TO SELF-ORGANIZATION OR COLLECTIVE BARGAINING, OR SHALL AID OR ABET SUCH OBSTRUCTION OR INTERFERENCE.

c.NO EMPLOYER SHALL USE OR EMPLOY ANY STRIKE-BREAKER, NOR SHALL ANY PERSON BE EMPLOYED AS A STRIKE-BREAKER.

d.NO PUBLIC OFFICIAL OR EMPLOYEE, INCLUDING OFFICERS AND PERSONNEL OF THE NEW ARMED FORCES OF THE PHILIPPINES OR THE INTEGRATED NATIONAL POLICE, OR ARMED PERSON, SHALL BRING IN, INTRODUCE OR ESCORT IN ANY MANNER, ANY INDIVIDUAL WHO SEEKS TO REPLACE STRIKERS IN ENTERING OR LEAVING THE PREMISES OF A STRIKE AREA, OR WORK IN PLACE OF THE STRIKERS. THE POLICE FORCE SHALL KEEP OUT OF THE PICKET LINES UNLESS ACTUAL VIOLENCE OR OTHER CRIMINAL ACTS OCCUR THEREIN: PROVIDED, THAT NOTHING HEREIN SHALL BE INTERPRETED TO PREVENT ANY PUBLIC OFFICER FROM TAKING ANY MEASURE NECESSARY TO MAINTAIN PEACE AND ORDER, PROTECT LIFE AND PROPERTY, AND/OR ENFORCE THE LAW AND LEGAL ORDER.(AS AMENDED BY EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

e.NO PERSON ENGAGED IN PICKETING SHALL COMMIT ANY ACT OF VIOLENCE, COERCION OR INTIMIDATION OR OBSTRUCT THE FREE INGRESS TO OR EGRESS FROM THE EMPLOYERS PREMISES FOR LAWFUL PURPOSES, OR OBSTRUCT PUBLIC THOROUGHFARES.(AS AMENDED BY BATAS PAMBANSA BILANG 227, JUNE 1, 1982)

ART. 265. IMPROVED OFFER BALLOTING.IN AN EFFORT TO SETTLE A STRIKE, THE DEPARTMENT OF LABOR AND EMPLOYMENT SHALL CONDUCT A REFERENDUM BY SECRET BALLOT ON THE IMPROVED OFFER OF THE EMPLOYER ON OR BEFORE THE 30TH DAY OF THE STRIKE. WHEN AT LEAST A MAJORITY OF THE UNION MEMBERS VOTE TO ACCEPT THE IMPROVED OFFER THE STRIKING WORKERS SHALL IMMEDIATELY RETURN TO WORK AND THE EMPLOYER SHALL THEREUPON READMIT THEM UPON THE SIGNING OF THE AGREEMENT.

IN CASE OF A LOCKOUT, THE DEPARTMENT OF LABOR AND EMPLOYMENT SHALL ALSO CONDUCT A REFERENDUM BY SECRET BALLOTING ON THE REDUCED OFFER OF THE UNION ON OR BEFORE THE 30TH DAY OF THE LOCKOUT. WHEN AT LEAST A MAJORITY OF THE BOARD OF DIRECTORS OR TRUSTEES OR THE PARTNERS HOLDING THE CONTROLLING INTEREST IN THE CASE OF A PARTNERSHIP VOTE TO ACCEPT THE REDUCED OFFER, THE WORKERS SHALL IMMEDIATELY RETURN TO WORK AND THE EMPLOYER SHALL THEREUPON READMIT THEM UPON THE SIGNING OF THE AGREEMENT.(INCORPORATED BY SECTION 28, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

IMPROVED OFFER BALLOTING: in case of a lock-out, the DOLE may conduct referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout.

INJUNCTION

ART. 254. INJUNCTION PROHIBITED.NO TEMPORARY OR PERMANENT INJUNCTION OR RESTRAINING ORDER IN ANY CASE INVOLVING OR GROWING OUT OF LABOR DISPUTES SHALL BE ISSUED BY ANY COURT OR OTHER ENTITY, EXCEPT AS OTHERWISE PROVIDED IN ARTICLES 218 AND 264 OF THIS CODE.(AS AMENDED BY BATAS PAMBANSA BILANG 227, JUNE 1, 1982)

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION.THE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT SHALL INCLUDE THEREIN PROVISIONS THAT WILL ENSURE THE MUTUAL OBSERVANCE OF ITS TERMS AND CONDITIONS. THEY SHALL ESTABLISH A MACHINERY FOR THE ADJUSTMENT AND RESOLUTION OF GRIEVANCES ARISING FROM THE INTERPRETATION OR IMPLEMENTATION OF THEIR COLLECTIVE BARGAINING AGREEMENT AND THOSE ARISING FROM THE INTERPRETATION OR ENFORCEMENT OF COMPANY PERSONNEL POLICIES.

ALL GRIEVANCES SUBMITTED TO THE GRIEVANCE MACHINERY WHICH ARE NOT SETTLED WITHIN SEVEN (7) CALENDAR DAYS FROM THE DATE OF ITS SUBMISSION SHALL AUTOMATICALLY BE REFERRED TO VOLUNTARY ARBITRATION PRESCRIBED IN THE COLLECTIVE BARGAINING AGREEMENT.

FOR THIS PURPOSE, PARTIES TO A COLLECTIVE BARGAINING AGREEMENT SHALL NAME AND DESIGNATE IN ADVANCE A VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, OR INCLUDE IN THE AGREEMENT A PROCEDURE FOR THE SELECTION OF SUCH VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, PREFERABLY FROM THE LISTING OF QUALIFIED VOLUNTARY ARBITRATORS DULY ACCREDITED BY THE BOARD. IN CASE THE PARTIES FAIL TO SELECT A VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, THE BOARD SHALL DESIGNATE THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, AS MAY BE NECESSARY, PURSUANT TO THE SELECTION PROCEDURE AGREED UPON IN THE COLLECTIVE BARGAINING AGREEMENT, WHICH SHALL ACT WITH THE SAME FORCE AND EFFECT AS IF THE ARBITRATOR OR PANEL OF ARBITRATORS HAS BEEN SELECTED BY THE PARTIES AS DESCRIBED ABOVE.

ART. 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORS.THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS SHALL HAVE ORIGINAL AND EXCLUSIVE JURISDICTION TO HEAR AND DECIDE ALL UNRESOLVED GRIEVANCES ARISING FROM THE INTERPRETATION OR IMPLEMENTATION OF THE COLLECTIVE BARGAINING AGREEMENT AND THOSE ARISING FROM THE INTERPRETATION OR ENFORCEMENT OF COMPANY PERSONNEL POLICIES REFERRED TO IN THE IMMEDIATELY PRECEDING ARTICLE. ACCORDINGLY, VIOLATIONS OF A COLLECTIVE BARGAINING AGREEMENT, EXCEPT THOSE WHICH ARE GROSS IN CHARACTER, SHALL NO LONGER BE TREATED AS UNFAIR LABOR PRACTICE AND SHALL BE RESOLVED AS GRIEVANCES UNDER THE COLLECTIVE BARGAINING AGREEMENT. FOR PURPOSES OF THIS ARTICLE, GROSS VIOLATIONS OF COLLECTIVE BARGAINING AGREEMENT SHALL MEAN FLAGRANT AND/OR MALICIOUS REFUSAL TO COMPLY WITH THE ECONOMIC PROVISIONS OF SUCH AGREEMENT.

THE COMMISSION, ITS REGIONAL OFFICES AND THE REGIONAL DIRECTORS OF THE DEPARTMENT OF LABOR AND EMPLOYMENT SHALL NOT ENTERTAIN DISPUTES, GRIEVANCES OR MATTERS UNDER THE EXCLUSIVE AND ORIGINAL JURISDICTION OF THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS AND SHALL IMMEDIATELY DISPOSE AND REFER THE SAME TO THE GRIEVANCE MACHINERY OR VOLUNTARY ARBITRATION PROVIDED IN THE COLLECTIVE BARGAINING AGREEMENT.

ART. 262. JURISDICTION OVER OTHER LABOR DISPUTES.THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, UPON AGREEMENT OF THE PARTIES, SHALL ALSO HEAR AND DECIDE ALL OTHER LABOR DISPUTES INCLUDING UNFAIR LABOR PRACTICES AND BARGAINING DEADLOCKS.

ART. 262-A. PROCEDURES.THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS SHALL HAVE THE POWER TO HOLD HEARINGS, RECEIVE EVIDENCES AND TAKE WHATEVER ACTION IS NECESSARY TO RESOLVE THE ISSUE OR ISSUES SUBJECT OF THE DISPUTE, INCLUDING EFFORTS TO EFFECT A VOLUNTARY SETTLEMENT BETWEEN PARTIES.

ALL PARTIES TO THE DISPUTE SHALL BE ENTITLED TO ATTEND THE ARBITRATION PROCEEDINGS. THE ATTENDANCE OF ANY THIRD PARTY OR THE EXCLUSION OF ANY WITNESS FROM THE PROCEEDINGS SHALL BE DETERMINED BY THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS. HEARING MAY BE ADJOURNED FOR CAUSE OR UPON AGREEMENT BY THE PARTIES.

UNLESS THE PARTIES AGREE OTHERWISE, IT SHALL BE MANDATORY FOR THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS TO RENDER AN AWARD OR DECISION WITHIN TWENTY (20) CALENDAR DAYS FROM THE DATE OF SUBMISSION OF THE DISPUTE TO VOLUNTARY ARBITRATION.

THE AWARD OR DECISION OF THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS SHALL CONTAIN THE FACTS AND THE LAW ON WHICH IT IS BASED. IT SHALL BE FINAL AND EXECUTORY AFTER TEN (10) CALENDAR DAYS FROM RECEIPT OF THE COPY OF THE AWARD OR DECISION BY THE PARTIES.

UPON MOTION OF ANY INTERESTED PARTY, THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS OR THE LABOR ARBITER IN THE REGION WHERE THE MOVANT RESIDES, IN CASE OF THE ABSENCE OR INCAPACITY OF THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, FOR ANY REASON, MAY ISSUE A WRIT OF EXECUTION REQUIRING EITHER THE SHERIFF OF THE COMMISSION OR REGULAR COURTS OR ANY PUBLIC OFFICIAL WHOM THE PARTIES MAY DESIGNATE IN THE SUBMISSION AGREEMENT TO EXECUTE THE FINAL DECISION, ORDER OR AWARD.

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

Generally, a Grievance Machinery should be provided in the CBA on Questions (grievance) of:

a.interpretationorimplementationof their CBA

b.those arising from theinterpretation or enforcement of company personnel policies

Note:

a.Any issue not settled within 7 days from the date of submission automatically be referred toVoluntary Arbitrators

b.Bypassing the Grievance Machinery is ULP however, it may be waived.

Temporary /ad hocArbitrator is selected when the dispute is already at hand.Permanent Arbitrator one who is selected before the dispute arises

Jurisdiction of Voluntary Arbitratorhas original and exclusive jurisdiction over money claims arising from (Grievances)

1.Contract Negotiation Disputes disputes as to the terms of a CBA

2.Contract Interpretation Disputes disputes arising under an existing CBA involving such matters as the interpretation and application of the contract, or alleged violation of its provisions including company policies

1)termination disputes, however if there is already an actual termination, the matter falls with the jurisdiction of the Labor Arbiters

2)CBA violations not constituting ULP

3)Wage distortion issues

2.Upon agreement of the parties, all labor disputes including ULP and Bargaining Deadlocks

How Arbitration is Initiated

2.a submission Agreement signed by both parties, describing the existing dispute.

3.by a demand or notice invoking a collective agreement arbitration

Authority of an Arbitrator

1.general authority to investigate and hear the case upon notice to the parties and to render an award based on the contract and record of the case

2.incidental authority to perform all acts, necessary to an adequate discharge of his duties and responsibilities like setting and conduct of hearing, attendance of witnesses and production of documents and other evidences, fact-finding and other modes of discovery, reopening of hearing, etc.

3.special powers in aid of his general contractual authority like the authority to determine arbitrability of any particular dispute and to modify any provision of existing agreement upon which a proposed change is submitted for arbitration

4.authority to issue writ of execution

Appeal: Decision of the VA has a 10 calendar day finality (MR may be allowed -A 262-A).there is no appeal from the decision of the Voluntary Arbitrator, however, when applicable, it may be brought through Rule 65certiorarito the CA (Sime Darby Phils v. Magsalin)

Grounds forCertiorari(Continental Marble v. NLRC)

1.want of jurisdiction

2.grave abuse of discretion

3.violation of due process

4.denial of substantial justice

5.erroneous interpretation of the law

Zipper Clause a stipulation in a CBA indicating that issues that could have been negotiated upon but not contained in the CBA cannot be raised for negotiation when the CBA is already in effect.

Effect of the CBA

binding upon the Employer and the members of the appropriate bargaining unit even if non-union members

enforceability of the cba to transferee employer

a)generally, the transfer of interest of the current employer to another, severs employment relationship between the new party.EXCEPTION: when the transaction is colored or clothed with bad faith

b)ON Mergers and Consolidation

Mergers when 2 or more corporations joint into a single corporation which is one of the merging corporation; the separate existence of the other constituent corporation ceases

Consolidation when 2 or more corporation joint into an new single corporation; separate existence of all the constituent corporation ceases, except that of the consolidated corporation

Generally, the surviving or consolidated corporation shall be responsible for all the liabilities and obligations of each of the constituent corporation

Wiley Doctrinethe surviving or consolidated corporation shall have the duty to bargain, when there is relevant similarity and continuity of operations across the change in ownership as evidenced by the wholesale transfer of the smaller corporations employees to the larger corporations plant

Substitutionary Doctrine the employees cannot revoke the validity executed CBA with their employer by the simple expedient of changing their bargaining agent.They may however,negotiate the shortening of its period.

ART. 244. RIGHT OF EMPLOYEES IN THE PUBLIC SERVICE.EMPLOYEES OF GOVERNMENT CORPORATIONS ESTABLISHED UNDER THE CORPORATION CODE SHALL HAVE THE RIGHT TO ORGANIZE AND TO BARGAIN COLLECTIVELY WITH THEIR RESPECTIVE EMPLOYERS. ALL OTHER EMPLOYEES IN THE CIVIL SERVICE SHALL HAVE THE RIGHT TO FORM ASSOCIATIONS FOR PURPOSES NOT CONTRARY TO LAW.(AS AMENDED BY EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

EO 180 for furtherance and protection of their interest

Declared not negotiable: those that require appropriation of funds

Negotiable: schedule of vacation and other leaves

HIGH LEVEL EMPLOYEE one whose functions are normally considered policy determining, managerial or whose duties are highly confidential in nature

REGISTRATION: CSCandDOLE. Upon approval of the application, aregistration certificateshall be issued to the organization

Remedies in Labor Disputes

1.Grievance Procedurein the CBA

2.Conciliation 3rd party meets with employer and labor and aids in reaching an agreement

3.Mediation 3rd party studies each side and makes proposals (cannot render an award or decision)

4.Enforcement or compliance order an act of the Secretary in the exercise of his visitorial power

5.Certification of Bargaining Representatives determination of which contending unions shall represent employees in Collective Bargaining (handled by Med-Arbiters of the DOLE Regional Offices after certification of consent elections)

6.Arbitration-submission of a dispute to an impartial person for determination on the basis of evidence and arguments of the parties.

Voluntary Arbitration if the submission of dispute is by agreement of the parties and the arbitrators or panel of arbitrators is chosen by them

(more elaborate discussion further in the material)

Compulsory Arbitration if submission of the dispute is by directive of law to the Labor Arbiters of the NLRC

7.Assumption of jurisdiction by the Secretary

(among others)

POWERS AND DUTIES

ART. 217.JURISDICTION OF THE LABOR ARBITERS AND THE COMMISSION.

a.EXCEPT AS OTHERWISE PROVIDED UNDER THIS CODE, THE LABOR ARBITERS SHALL HAVEORIGINAL AND EXCLUSIVE JURISDICTION TO HEAR AND DECIDE, WITHIN THIRTY (30) CALENDAR DAYS AFTER THE SUBMISSION OF THE CASE BY THE PARTIES FOR DECISION WITHOUT EXTENSION, EVEN IN THE ABSENCE OF STENOGRAPHIC NOTES, THE FOLLOWING CASES INVOLVING ALL WORKERS, WHETHER AGRICULTURAL OR NON-AGRICULTURAL:

1.UNFAIR LABOR PRACTICE CASES;

2.TERMINATION DISPUTES;

3.IFACCOMPANIED WITH A CLAIM FOR REINSTATEMENT, THOSE CASES THAT WORKERS MAY FILE INVOLVING WAGES, RATES OF PAY, HOURS OF WORK AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT;

4.CLAIMSFOR ACTUAL, MORAL, EXEMPLARY AND OTHER FORMS OF DAMAGES ARISING FROM THE EMPLOYER-EMPLOYEE RELATIONS;

5.CASES ARISING FROM ANYVIOLATION OF ARTICLE 264OF THIS CODE, INCLUDING QUESTIONS INVOLVING THE LEGALITY OF STRIKES AND LOCKOUTS; AND

6.EXCEPT CLAIMS FOR EMPLOYEES COMPENSATION, SOCIAL SECURITY, MEDICARE AND MATERNITY BENEFITS,ALL OTHER CLAIMS ARISING FROM EMPLOYER-EMPLOYEE RELATIONS,INCLUDING THOSE OF PERSONS IN DOMESTIC OR HOUSEHOLD SERVICE, INVOLVING AN AMOUNT EXCEEDING FIVE THOUSAND PESOS (P5,000.00) REGARDLESS OF WHETHER ACCOMPANIED WITH A CLAIM FOR REINSTATEMENT.

b.THE COMMISSION SHALL HAVE EXCLUSIVE APPELLATE JURISDICTION OVER ALL CASES DECIDED BY LABOR ARBITERS.

c.CASES ARISING FROM THEINTERPRETATION OR IMPLEMENTATION OF COLLECTIVE BARGAININGAGREEMENTS AND THOSEARISING FROM THE INTERPRETATION OR ENFORCEMENT OF COMPANY PERSONNEL POLICIESSHALL BE DISPOSED OF BY THE LABOR ARBITER BY REFERRING THE SAME TO THE GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION AS MAY BE PROVIDED IN SAID AGREEMENTS.(AS AMENDED BY SECTION 9, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

JURISDICTION OF LABOR ARBITERS

What is the nature of jurisdiction of Labor Arbiters?

The jurisdiction is original and exclusive in nature.

Labor Arbiters have no appellate jurisdiction.

What are the money claims over which Labor Arbiters have jurisdiction?

Money claims falling within the original and exclusive jurisdiction of the Labor Arbiters may be classified as follows:

1. any money claim, regardless of amount, accompanied with a claim for reinstatement (which involves a termination case); or

2. any money claim, regardless of whether accompanied with a claim for reinstatement, exceeding the amount of P5,000.00 per claimant (which does not necessarily involve termination of employment).

Money claims must have arisen from employment orsome aspect or incident of such relationship(San Miguel Corp. vs. NLRC implied and innominate contract)

Do Labor Arbiters have jurisdiction over wage distortion cases?

YES, only in unorganized establishments. In organized establishments, jurisdiction is vested with Voluntary Arbitrators. (Art. 124, par.5)

Do Labor Arbiters have jurisdiction over money claims of Overseas Filipino Workers (OFWs)?

YES. Thosearising from employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages.

(NOTE: The POEA continues to have jurisdiction over recruitment or pre-employment cases which are administrative in nature, involving or arising out of recruitment laws, rules and regulations, including money claims arising therefrom or violation of the conditions for issuance of license to recruit workers).

How should the monetary claims of OFWs be computed?

Skippers Pacific, Inc. vs. Mira, et al., (G. R. No. 144314, November 21, 2002) Under Section 10, Republic Act No. 8042, the claim for unpaid salaries of overseas workers should be whichever is less between salaries for unexpired portion of the contract or 3 months for every year of the remaining unexpired portion of the contract (in case contract is one year or more).

Do Labor Arbiters have jurisdiction over legality of strikes and lockouts?

YES, except in strikes and lockouts in industries indispensable to the national interest, in which case, either NLRC (in certified cases) or DOLE Secretary (in assumed cases) has jurisdiction.

NOTE: Local Water District are quasi-public corporation, employees belong to civil service dismissal governed by the CSL (PD 198Provincial Water Utilities Act of 1973)

ART. 218.POWERS OF THE COMMISSION.THE COMMISSION SHALL HAVE THE POWER AND AUTHORITY:

a.TOPROMULGATE RULES AND REGULATIONS GOVERNING THE HEARING AND DISPOSITION OF CASES BEFORE IT AND ITS REGIONAL BRANCHES, AS WELL AS THOSE PERTAINING TO ITS INTERNAL FUNCTIONS AND SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS CODE;(AS AMENDED BY SECTION 10, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

b.TOADMINISTER OATHS,SUMMON THE PARTIES TO A CONTROVERSY,ISSUE SUBPOENAS REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSESOR THE PRODUCTION OF SUCH BOOKS, PAPERS, CONTRACTS, RECORDS, STATEMENT OF ACCOUNTS, AGREEMENTS, AND OTHERS AS MAY BE MATERIAL TO A JUST DETERMINATION OF THE MATTER UNDER INVESTIGATION, AND TO TESTIFY IN ANY INVESTIGATION OR HEARING CONDUCTED IN PURSUANCE OF THIS CODE;

c.TOCONDUCT INVESTIGATION FOR THE DETERMINATION OF A QUESTION, MATTER OR CONTROVERSY WITHIN ITS JURISDICTION, PROCEED TO HEAR AND DETERMINE THE DISPUTES IN THE ABSENCE OF ANY PARTY THERETO WHO HAS BEEN SUMMONED OR SERVED WITH NOTICE TO APPEAR, CONDUCT ITS PROCEEDINGS OR ANY PART THEREOF IN PUBLIC OR IN PRIVATE, ADJOURN ITS HEARINGS TO ANY TIME AND PLACE, REFER TECHNICAL MATTERS OR ACCOUNTS TO AN EXPERT AND TO ACCEPT HIS REPORT AS EVIDENCE AFTER HEARING OF THE PARTIES UPON DUE NOTICE, DIRECT PARTIES TO BE JOINED IN OR EXCLUDED FROM THE PROCEEDINGS, CORRECT, AMEND, OR WAIVE ANY ERROR, DEFECT OR IRREGULARITY WHETHER IN SUBSTANCE OR IN FORM, GIVE ALL SUCH DIRECTIONS AS IT MAY DEEM NECESSARY OR EXPEDIENT IN THE DETERMINATION OF THE DISPUTE BEFORE IT, AND DISMISS ANY MATTER OR REFRAIN FROM FURTHER HEARING OR FROM DETERMINING THE DISPUTE OR PART THEREOF, WHERE IT IS TRIVIAL OR WHERE FURTHER PROCEEDINGS BY THE COMMISSION ARE NOT NECESSARY OR DESIRABLE; AND

d.TOHOLD ANY PERSON IN CONTEMPTDIRECTLY OR INDIRECTLYAND IMPOSE APPROPRIATE PENALTIESTHEREFOR IN ACCORDANCE WITH LAW.

A PERSON GUILTY OF MISBEHAVIOR IN THE PRESENCE OF OR SO NEAR THE CHAIRMAN OR ANY MEMBER OF THE COMMISSION OR ANY LABOR ARBITER AS TO OBSTRUCT OR INTERRUPT THE PROCEEDINGS BEFORE THE SAME, INCLUDING DISRESPECT TOWARD SAID OFFICIALS, OFFENSIVE PERSONALITIES TOWARD OTHERS, OR REFUSAL TO BE SWORN, OR TO ANSWER AS A WITNESS OR TO SUBSCRIBE AN AFFIDAVIT OR DEPOSITION WHEN LAWFULLY REQUIRED TO DO SO, MAY BE SUMMARILY ADJUDGED IN DIRECT CONTEMPT BY SAID OFFICIALS AND PUNISHED BY FINE NOT EXCEEDING FIVE HUNDRED PESOS (P500) OR IMPRISONMENT NOT EXCEEDING FIVE (5) DAYS, OR BOTH, IF IT BE THE COMMISSION, OR A MEMBER THEREOF, OR BY A FINE NOT EXCEEDING ONE HUNDRED PESOS (P100) OR IMPRISONMENT NOT EXCEEDING ONE (1) DAY, OR BOTH, IF IT BE A LABOR ARBITER.

THE PERSON ADJUDGED IN DIRECT CONTEMPT BY A LABOR ARBITER MAY APPEAL TO THE COMMISSION AND THE EXECUTION OF THE JUDGMENT SHALL BE SUSPENDED PENDING THE RESOLUTION OF THE APPEAL UPON THE FILING BY SUCH PERSON OF A BOND ON CONDITION THAT HE WILL ABIDE BY AND PERFORM THE JUDGMENT OF THE COMMISSION SHOULD THE APPEAL BE DECIDED AGAINST HIM. JUDGMENT OF THE COMMISSION ON DIRECT CONTEMPT IS IMMEDIATELY EXECUTORY AND UNAPPEALABLE. INDIRECT CONTEMPT SHALL BE DEALT WITH BY THE COMMISSION OR LABOR ARBITER IN THE MANNER PRESCRIBED UNDER RULE 71 OF THE REVISED RULES OF COURT; AND(AS AMENDED BY SECTION 10, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

Do Labor Arbiters have contempt powers?

Yes. However, it must be noted that according to the 2003 case of Land Bank of the Philippines vs. Listana, Sr., [G. R. No. 152611, August 5, 2003], quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant toRule 71 of the Rules of Courtcan only do so by initiating them in the proper Regional Trial Court. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the Regional Trial Courts.

e.TOENJOIN OR RESTRAIN ANY ACTUAL OR THREATENED COMMISSION OF ANY OR ALL PROHIBITED OR UNLAWFUL ACTSOR TO REQUIRE THE PERFORMANCE OF A PARTICULAR ACT IN ANY LABOR DISPUTE WHICH, IF NOT RESTRAINED OR PERFORMED FORTHWITH, MAY CAUSE GRAVE OR IRREPARABLE DAMAGE TO ANY PARTY OR RENDER INEFFECTUAL ANY DECISION IN FAVOR OF SUCH PARTY: PROVIDED, THAT NO TEMPORARY OR PERMANENT INJUNCTION IN ANY CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE AS DEFINED IN THIS CODE SHALL BE ISSUED EXCEPT AFTER HEARING THE TESTIMONY OF WITNESSES, WITH OPPORTUNITY FOR CROSS-EXAMINATION, IN SUPPORT OF THE ALLEGATIONS OF A COMPLAINT MADE UNDER OATH, AND TESTIMONY IN OPPOSITION THERETO, IF OFFERED, AND ONLY AFTER A FINDING OF FACT BY THE COMMISSION, TO THE EFFECT:

1.THATPROHIBITED OR UNLAWFUL ACTS HAVE BEEN THREATENED AND WILL BE COMMITTED AND WILL BE CONTINUED UNLESS RESTRAINED, BUT NO INJUNCTION OR TEMPORARY RESTRAINING ORDER SHALL BE ISSUED ON ACCOUNT OF ANY THREAT, PROHIBITED OR UNLAWFUL ACT, EXCEPT AGAINST THE PERSON OR PERSONS, ASSOCIATION OR ORGANIZATION MAKING THE THREAT OR COMMITTING THE PROHIBITED OR UNLAWFUL ACT OR ACTUALLY AUTHORIZING OR RATIFYING THE SAME AFTER ACTUAL KNOWLEDGE THEREOF;

2.THAT SUBSTANTIAL AND IRREPARABLE INJURY TO COMPLAINANTS PROPERTY WILL FOLLOW;

3.THAT AS TO EACH ITEM OF RELIEF TO BE GRANTED, GREATER INJURY WILL BE INFLICTED UPON COMPLAINANT BY THE DENIAL OF RELIEF THAN WILL BE INFLICTED UPON DEFENDANTS BY THE GRANTING OF RELIEF;

4.THAT COMPLAINANT HAS NO ADEQUATE REMEDY AT LAW; AND

5.THAT THE PUBLIC OFFICERS CHARGED WITH THE DUTY TO PROTECT COMPLAINANTS PROPERTY ARE UNABLE OR UNWILLING TO FURNISH ADEQUATE PROTECTION.

SUCH HEARING SHALL BE HELD AFTER DUE AND PERSONAL NOTICE THEREOF HAS BEEN SERVED, IN SUCH MANNER AS THE COMMISSION SHALL DIRECT, TO ALL KNOWN PERSONS AGAINST WHOM RELIEF IS SOUGHT, AND ALSO TO THE CHIEF EXECUTIVE AND OTHER PUBLIC OFFICIALS OF THE PROVINCE OR CITY WITHIN WHICH THE UNLAWFUL ACTS HAVE BEEN THREATENED OR COMMITTED, CHARGED WITH THE DUTY TO PROTECT COMPLAINANTS PROPERTY: PROVIDED, HOWEVER, THAT IF A COMPLAINANT SHALL ALSO ALLEGE THAT, UNLESS A TEMPORARY RESTRAINING ORDER SHALL BE ISSUED WITHOUT NOTICE, A SUBSTANTIAL AND IRREPARABLE INJURY TO COMPLAINANTS PROPERTY WILL BE UNAVOIDABLE, SUCH A TEMPORARY RESTRAINING ORDER MAY BE ISSUED UPON TESTIMONY UNDER OATH, SUFFICIENT, IF SUSTAINED, TO JUSTIFY THE COMMISSION IN ISSUING A TEMPORARY INJUNCTION UPON HEARING AFTER NOTICE. SUCH A TEMPORARY RESTRAINING ORDER SHALL BE EFFECTIVE FOR NO LONGER THAN TWENTY (20) DAYS AND SHALL BECOME VOID AT THE EXPIRATION OF SAID TWENTY (20) DAYS. NO SUCH TEMPORARY RESTRAINING ORDER OR TEMPORARY INJUNCTION SHALL BE ISSUED EXCEPT ON CONDITION THAT COMPLAINANT SHALL FIRST FILE AN UNDERTAKING WITH ADEQUATE SECURITY IN AN AMOUNT TO BE FIXED BY THE COMMISSION SUFFICIENT TO RECOMPENSE THOSE ENJOINED FOR ANY LOSS, EXPENSE OR DAMAGE CAUSED BY THE IMPROVIDENT OR ERRONEOUS ISSUANCE OF SUCH ORDER OR INJUNCTION, INCLUDING ALL REASONABLE COSTS, TOGETHER WITH A REASONABLE ATTORNEYS FEE, AND EXPENSE OF DEFENSE AGAINST THE ORDER OR AGAINST THE GRANTING OF ANY INJUNCTIVE RELIEF SOUGHT IN THE SAME PROCEEDING AND SUBSEQUENTLY DENIED BY THE COMMISSION.THE UNDERTAKING HEREIN MENTIONED SHALL BE UNDERSTOOD TO CONSTITUTE AN AGREEMENT ENTERED INTO BY THE COMPLAINANT AND THE SURETY UPON WHICH AN ORDER MAY BE RENDERED IN THE SAME SUIT OR PROCEEDING AGAINST SAID COMPLAINANT AND SURETY, UPON A HEARING TO ASSESS DAMAGES, OF WHICH HEARING, COMPLAINANT AND SURETY SHALL HAVE REASONABLE NOTICE, THE SAID COMPLAINANT AND SURETY SUBMITTING THEMSELVES TO THE JURISDICTION OF THE COMMISSION FOR THAT PURPOSE. BUT NOTHING HEREIN CONTAINED SHALL DEPRIVE ANY PARTY HAVING A CLAIM OR CAUSE OF ACTION UNDER OR UPON SUCH UNDERTAKING FROM ELECTING TO PURSUE HIS ORDINARY REMEDY BY SUIT AT LAW OR IN EQUITY: PROVIDED, FURTHER, THAT THE RECEPTION OF EVIDENCE FOR THE APPLICATION OF A WRIT OF INJUNCTION MAY BE DELEGATED BY THE COMMISSION TO ANY OF ITS LABOR ARBITERS WHO SHALL CONDUCT SUCH HEARINGS IN SUCH PLACES AS HE MAY DETERMINE TO BE ACCESSIBLE TO THE PARTIES AND THEIR WITNESSES AND SHALL SUBMIT THEREAFTER HIS RECOMMENDATION TO THE COMMISSION. (AS AMENDED BY SECTION 10, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

JURISDICTION OF THE NLRC

What are the two kinds of jurisdiction of the NLRC?

The National Labor Relations Commission exercises two (2) kinds of jurisdiction:

1. original jurisdiction; and2. exclusive appellate jurisdiction.

Original jurisdiction.

a.Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party.

b.Injunction in strikes or lockouts under Article 264 of the Labor Code.

c.Certified labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest, certified to it by the Secretary of Labor and Employment for compulsory arbitration.

Exclusive appellate jurisdiction.

a.All cases decided by the Labor Arbiters including contempt cases.

b.Cases decided by the DOLE Regional Directors or his duly authorized Hearing Officers (under Article 129) involving recovery of wages, simple money claims and other benefits not exceeding P5,000 and not accompanied by claim for reinstatement.

What is the distinction between the jurisdiction of the Labor Arbiters and the NLRC?

The NLRC has exclusive appellate jurisdiction on all cases decided by the Labor Arbiters. The NLRC does not have original jurisdiction on the cases over which Labor Arbiters have original and exclusive jurisdiction (see above enumeration). If a claim does not fall within the exclusive original jurisdiction of the Labor Arbiter, the NLRC cannot have appellate jurisdiction thereover.

What is the power to assume jurisdiction or certify "national interest" labor disputes to NLRC?

When, in his opinion,there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest,the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. (Article 263 [g], Labor Code).

What are the cases falling under the DOLE Secretary's appellate power?

a.Orders issued by the duly authorized representative of the Secretary of Labor and Employment under Article 128 (Visitorial and Enforcement Power) may be appealed to the latter. (Art. 128).

b.Denial of application for union registration or cancellation of union registration originally rendered by the Bureau of Labor Relations (BLR) may be appealed to the Secretary of Labor and Employment. (NOTE: If originally rendered by the Regional Office, appeal should be made to the BLR).

c.Decisions of the Med-Arbiter in certification election cases are appealable to the DOLE Secretary. (Art. 259). (NOTE: Decisions of Med-Arbiters in intra-union disputes are appealable to the BLR).

Do Labor Arbiters have injunction power?

It must be noted that the provision in the 1990 version of the NLRC Rules granting injunction power to the Labor Arbiters is no longer found in its 2002 version. It is opined that this deletion is correct sinceArticle 218 of the Labor Code grants injunctive power only to the "Commission" which obviously refers to the NLRC's various divisions and not to the Labor Arbiter.

What are the money claims falling under the jurisdiction of DOLE Regional Directors?

Under Article 129, the Regional Director or any of the duly authorized hearing officers of DOLE have jurisdiction over claims for recovery of wages, simple money claims and other benefits, provided that:

1.the claim must arise from employer-employee relationship;

2.the claimant does not seek reinstatement; and

3.the aggregate money claim of each employee does not exceed P5,000.00.

[Distinction of Art. 217, 128, and 129]JURISDICTION OF GRIEVANCE MACHINERY IN THE CBA

What are the cases falling under the jurisdiction of the Grievance Machinery?

Any grievance arising from:

1.the interpretation or implementation of the Collective Bargaining Agreement (CBA); and

2.The interpretation or enforcement of company personnel policies.

(NOTE: All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the CBA)

JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF Vas

What are the cases falling under the jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators?

The Voluntary Arbitrator (or panel of Voluntary Arbitrators) has original and exclusive jurisdiction over the following:

1. All unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement after exhaustion of the grievance procedure; and

2. All unresolved grievances arising from the implementation or interpretation of company personnel policies. (Article 261).

3. All other labor disputes including unfair labor practices and bargaining deadlocks, upon agreement of the parties. (Article 262).

How should cases falling under the jurisdiction of the Voluntary Arbitrator but erroneously filed with the Labor Arbiters or DOLE Regional Offices be processed?

They shall immediately be disposed and referred to the Grievance Machinery or Voluntary Arbitration provided in the CBA.

In case of conflict, who has jurisdiction over termination disputes, Labor Arbiter or Voluntary Arbitrator?

ATLAS FARMS, INC. VS. NLRC (G.R. NO. 142244; Nov. 18, 2002) Jurisdiction over termination disputes belongs to Labor Arbiters and NOT with Grievance Machinery nor Voluntary Arbitrator [cited Maneja vs. NLRC, 290 SCRA 603, 616, (1998)].

CELESTINO VIVERO VS. COURT OF APPEALS, HAMMONIA MARINE SERVICES, ET AL., (G. R. NO. 138938, OCTOBER 24, 2000) - Under Article 262, the Voluntary Arbitrator may assume jurisdiction only when agreed upon by the parties. Policy Instructions No. 56 issued by DOLE Secretary Confesor clarifying the jurisdiction of Labor Arbiters and Voluntary Arbitrations does not apply. It reiterated the ruling that dismissal is not a grievable issue.ART. 219. OCULAR INSPECTION.THECHAIRMAN,ANY COMMISSIONER,LABOR ARBITER OR THEIR DULY AUTHORIZED REPRESENTATIVES,MAY, AT ANY TIME DURING WORKING HOURS, CONDUCT AN OCULAR INSPECTION ON ANY ESTABLISHMENT, BUILDING, SHIP OR VESSEL, PLACE OR PREMISES, INCLUDING ANY WORK, MATERIAL, IMPLEMENT, MACHINERY, APPLIANCE OR ANY OBJECT THEREIN, AND ASK ANY EMPLOYEE, LABORER, OR ANY PERSON, AS THE CASE MAY BE, FOR ANY INFORMATION OR DATA CONCERNING ANY MATTER OR QUESTION RELATIVE TO THE OBJECT OF THE INVESTIGATION.[This power is not meant to duplicate visitorial-enforcement authority laid down under Art. 128]

ART. 220. COMPULSORY ARBITRATION.THE COMMISSION OR ANY LABOR ARBITER SHALL HAVE THE POWER TO ASK THE ASSISTANCE OF OTHER GOVERNMENT OFFICIALS AND QUALIFIED PRIVATE CITIZENS TO ACT AS COMPULSORY ARBITRATORS ON CASES REFERRED TO THEM AND TO FIX AND ASSESS THE FEES OF SUCH COMPULSORY ARBITRATORS, TAKING INTO ACCOUNT THE NATURE OF THE CASE, THE TIME CONSUMED IN HEARING THE CASE, THE PROFESSIONAL STANDING OF THE ARBITRATORS, THE FINANCIAL CAPACITY OF THE PARTIES, AND THE FEES PROVIDED IN THE RULES OF COURT.](REPEALED BY SECTION 16, BATAS PAMBANSA BILANG 130, AUGUST 21, 1981)

ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT.IN ANY PROCEEDING BEFORE THE COMMISSION OR ANY OF THE LABOR ARBITERS,THE RULES OF EVIDENCE PREVAILING IN COURTS OF LAW OR EQUITY SHALL NOT BE CONTROLLING AND IT IS THE SPIRIT AND INTENTION OF THIS CODE THAT THE COMMISSION AND ITS MEMBERS AND THE LABOR ARBITERS SHALL USE EVERY AND ALL REASONABLE MEANS TO ASCERTAIN THE FACTS IN EACH CASE SPEEDILY AND OBJECTIVELY AND WITHOUT REGARD TO TECHNICALITIES OF LAW OR PROCEDURE, ALL IN THE INTEREST OF DUE PROCESS.IN ANY PROCEEDING BEFORE THE COMMISSION OR ANY LABOR ARBITER, THE PARTIES MAY BE REPRESENTED BY LEGAL COUNSEL BUT IT SHALL BE THE DUTY OF THE CHAIRMAN, ANY PRESIDING COMMISSIONER OR COMMISSIONER OR ANY LABOR ARBITER TO EXERCISE COMPLETE CONTROL OF THE PROCEEDINGS AT ALL STAGES.

ANY PROVISION OF LAW TO THE CONTRARY NOTWITHSTANDING, THE LABOR ARBITER SHALL EXERT ALL EFFORTS TOWARDS THE AMICABLE SETTLEMENT OF A LABOR DISPUTE WITHIN HIS JURISDICTION ON OR BEFORE THE FIRST HEARING. THE SAME RULE SHALL APPLY TO THE COMMISSION IN THE EXERCISE OF ITS ORIGINAL JURISDICTION.(AS AMENDED BY SECTION 11, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

Basis of Decision: submission of position papers, affidavits or documentary evidence

Modicum of admissibility: substantial evidence

Ang Tibay vs. CIR (1940)cardinal primary rights which must be respected even in proceedings of this character:

1)right to a hearing

2)tribunal must consider the evidence presented

3)decision must be supported by something (evidence)

4)supporting evidence must be substantial

5)decision must be rendered on the evidence presented or at least contained in the record and disclosed to the parties affected

6)the body or CIR or any of its judges must act on his own independent consideration of the law and facts, and not simply accept the views of he subordinate in arriving decision

7)decide in such manner that parties can know the various issues involved and the reason for the decision

ART. 222. APPEARANCES AND FEES.

a.NON-LAWYERS MAY APPEAR BEFORE THE COMMISSION OR ANY LABOR ARBITER ONLY:

1.IF THEY REPRESENT THEMSELVES; OR

2.IF THEY REPRESENT THEIR ORGANIZATION OR MEMBERS THEREOF.

b.NO ATTORNEYS FEES,NEGOTIATION FEESORSIMILAR CHARGES OF ANY KIND ARISING FROM ANY COLLECTIVE BARGAINING AGREEMENTSHALL BE IMPOSED ON ANY INDIVIDUAL MEMBER OF THE CONTRACTING UNION: PROVIDED, HOWEVER, THATATTORNEYS FEES MAY BE CHARGED AGAINST UNION FUNDS IN AN AMOUNT TO BE AGREED UPON BY THE PARTIES. ANY CONTRACT, AGREEMENT OR ARRANGEMENT OF ANY SORT TO THE CONTRARY SHALL BE NULL AND VOID.(AS AMENDED BY PRESIDENTIAL DECREE NO. 1691, MAY 1, 1980)

APPEAL

ART. 223. APPEAL.DECISIONS, AWARDS, OR ORDERS OF THE LABOR ARBITER ARE FINAL AND EXECUTORY UNLESS APPEALED TO THE COMMISSION BY ANY OR BOTH PARTIES WITHIN TEN (10) CALENDAR DAYS FROM RECEIPT OF SUCH DECISIONS, AWARDS, OR ORDERS. SUCH APPEAL MAY BE ENTERTAINED ONLY ON ANY OF THE FOLLOWING GROUNDS:

a.IF THERE IS PRIMA FACIE EVIDENCE OFABUSE OF DISCRETION ON THE PART OF THE LABOR ARBITER;

b.IF THE DECISION, ORDER OR AWARD WASSECURED THROUGH FRAUD OR COERCION, INCLUDING GRAFT AND CORRUPTION;

c.IF MADEPURELY ON QUESTIONS OF LAW; AND

d.IFSERIOUS ERRORS IN THE FINDINGS OF FACTS ARE RAISEDWHICH WOULD CAUSE GRAVE OR IRREPARABLE DAMAGE OR INJURY TO THE APPELLANT.

IN CASE OF A JUDGMENT INVOLVING A MONETARY AWARD, AN APPEAL BY THE EMPLOYER MAY BE PERFECTED ONLY UPON THE POSTING OF A CASH OR SURETY BOND ISSUED BY A REPUTABLE BONDING COMPANY DULY ACCREDITED BY THE COMMISSION IN THE AMOUNT EQUIVALENT TO THE MONETARY AWARD IN THE JUDGMENT APPEALED FROM.

IN ANY EVENT, THE DECISION OF THE LABOR ARBITER REINSTATING A DISMISSED OR SEPARATED EMPLOYEE, INSOFAR AS THE REINSTATEMENT ASPECT IS CONCERNED, SHALL IMMEDIATELY BE EXECUTORY, EVEN PENDING APPEAL. THE EMPLOYEE SHALL EITHER BE ADMITTED BACK TO WORK UNDER THE SAME TERMS AND CONDITIONS PREVAILING PRIOR TO HIS DISMISSAL OR SEPARATION OR, AT THE OPTION OF THE EMPLOYER, MERELY REINSTATED IN THE PAYROLL. THE POSTING OF A BOND BY THE EMPLOYER SHALL NOT STAY THE EXECUTION FOR REINSTATEMENT PROVIDED HEREIN.

TO DISCOURAGE FRIVOLOUS OR DILATORY APPEALS, THE COMMISSION OR THE LABOR ARBITER SHALL IMPOSE REASONABLE PENALTY, INCLUDING FINES OR CENSURES, UPON THE ERRING PARTIES.

IN ALL CASES, THE APPELLANT SHALL FURNISH A COPY OF THE MEMORANDUM OF APPEAL TO THE OTHER PARTY WHO SHALL FILE AN ANSWER NOT LATER THAN TEN (10) CALENDAR DAYS FROM RECEIPT THEREOF.

THE COMMISSION SHALL DECIDE ALL CASES WITHIN TWENTY (20) CALENDAR DAYS FROM RECEIPT OF THE ANSWER OF THE APPELLEE. THE DECISION OF THE COMMISSION SHALL BE FINAL AND EXECUTORY AFTER TEN (10) CALENDAR DAYS FROM RECEIPT THEREOF BY THE PARTIES.

ANY LAW ENFORCEMENT AGENCY MAY BE DEPUTIZED BY THE SECRETARY OF LABOR AND EMPLOYMENT OR THE COMMISSION IN THE ENFORCEMENT OF DECISIONS, AWARDS OR ORDERS.(AS AMENDED BY SECTION 12, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

APPEALSWhat are the modes of appeal from the decisions of the various labor tribunals?

1. DECISION OF LABOR ARBITERS:Appeal from the decision of the Labor Arbiter is brought by ordinary appeal to the NLRC within ten (10) calendar days from receipt by the party of the decision. From the decision of the NLRC, there is no appeal. The only way to elevate the case to the Court of Appeals is by way of the special civil action of certiorari under Rule 65 of the Rules of Civil Procedure. From the ruling of the Court of the Appeals, it may be elevated to the Supreme Court by way of ordinary appeal under Rule 45 of the Rules of Civil Procedure. (St. Martin Funeral Home vs. NLRC, et al., G. R. No. 130866, September 16, 1998).

2. DECISION OF VOLUNTARY ARBITRATORS:The decision of a Voluntary Arbitrator or panel of Voluntary Arbitrators is appealable by ordinary appeal under Rule 43 of the Rules of Civil Procedure directly to the Court of Appeals. From the Court of Appeals, the case may be elevated to the Supreme Court by way of ordinary appeal under the same Rule 45. (Luzon Development Bank vs. Association of Luzon Development Bank Employees, et al., G. R. No. 120319, October 6, 1995).

3. DECISION OF THE BLR:A. Denial of application for registration of a union. If the denial is issued by the Regional Office, it may be appealed to the BLR. If the denial is originally made by the BLR, appeal may be had to the Secretary of Labor and Employment. B. Cancellation of registration of a union. If the cancellation of union registration is ordered by the Regional Office, the same may be appealed to the BLR. If the cancellation is done by the BLR in a petition filed directly therewith, the BLR's decision is appealable to the Secretary of Labor and Employment by ordinary appeal.

The decision of the BLR rendered in its original jurisdiction may be appealed to the Secretary of Labor and Employment whose decision thereon may only be elevated to the Court of Appeals by way of certiorari under Rule 65.

The decision of the BLR rendered in its appellate jurisdiction may not be appealed to the Secretary of Labor and Employment but may be elevated directly to the Court of Appeals by way of certiorari under Rule 65. (Abbott Laboratories Philippines, Inc. vs. Abbott Laboratories Employees Union, et al., G. R. No. 131374, January 26, 2000).

4. DECISION OF THE MED-ARBITER IN CERTIFICATION ELECTION CASES -The decision is appealable to the DOLE Secretary of Labor and Employment.

5. DECISION OF THE DOLE REGIONAL DIRECTORS OR HIS DULY AUTHORIZED HEARING OFFICERS UNDER ARTICLE 129 INVOLVING RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS NOT EXCEEDING P5,000 AND NOT ACCOMPANIED BY CLAIM FOR REINSTATEMENT -The decision is appealable to the NLRC and not to the DOLE Secretary.

(NOTE: Appeal from CA to SC should be under Rule 45 (Petition for Review on Certiorari) and not Rule 65 (Special Civil Action for Certiorari) - SEA POWER SHIPPING ENTERPRISES, INC. VS. COURT OF APPEALS, ET AL., G. R. NO. 138270, JUNE 28, 2001)

APPEAL TO THE NLRC FROM DECISIONS OF LABOR ARBITERS

What are the grounds for appeal?

There are four (4) grounds, to wit:

(a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;

(b) If the decision, order or award was secured through fraud or coercion, including graft and corruption;

(c) If made purely on questions of law; and

(d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant.

What are the requisites for perfection of appeal?

Requisites for perfection of appeal.

a. the appeal should be filed within the reglementary period;

b. the Memorandum of Appeal should be under oath;

c. payment of appeal fee;

d. posting of cash or surety bond, if judgment involves monetary award; and

e. proof of service to the adverse party.

What is the reglementary period to perfect the appeal?

The reglementary period is ten (10) calendar days.

What is the reinstatement aspect of the Labor Arbiter's decision?

If reinstatement is ordered by the Labor Arbiter in an illegal dismissal case, it is immediately executory even pending appeal. Such award does not require a writ of execution. In the case of Pioneer Texturizing Corporation vs. NLRC, et al., 280 SCRA 806 [1997], it is the employer who is duty-bound to inform employee of the reinstatement (either in the payroll or in the position previously held or in a substantially equivalent position if no longer available, at the option of the employer). The employee ordered reinstated need not secure a writ of execution from the Labor Arbiter. If employer refuses to reinstate, the employee may file a motion to cite the former in contempt. The posting of bond does not stay reinstatement.

Options of the employer.

The employer is practically left with no effective contra-remedy that may forestall or stay the execution of a Labor Arbiter's order for immediate reinstatement pending appeal. All that the employer has is to avail of any of the following options:

1.actual reinstatementof the employee to his work under the same terms and conditions prevailing prior to his dismissal or separation; or

2.reinstatement of the employee in the payrollof the company, without requiring him to report back to his work. (Article 223, Labor Code; Zamboanga City Water District vs. Buat, 232 SCRA 587).

Employer has to notify employee of his choice of option.

Having ruled in Pioneer Texturizing [supra] that henceforth, an award or order for reinstatement under Article 223 is self-executory, the Supreme Court prescribes the procedure to be followed, thus:

"After receipt of the decision or resolution ordering the employee's reinstatement, the employer has the right to choose whether to re-admit the employee to work under the same terms and conditions prevailing prior to his dismissal or to reinstate the employee in the payroll. In either instance, the employer has to inform the employee of his choice. The notification is based on practical considerations for without notice, the employee has no way of knowing if he has to report for work or not." [Underscoring supplied]

Failure to exercise option, employer should pay salary.

Failing to exercise any of the options, the employer can be compelled, under pain of contempt, to pay instead the salary of the employee. The employee should not be left without any remedy in case the employer unreasonably delays reinstatement. The unjustified refusal of the employer to reinstate an illegally dismissed employee entitles the employee to payment of his salaries. (Pioneer Texturizing Corporation vs. NLRC, supra).

The entitlement of the dismissed employee to his salaries occasioned by the unjustified refusal of the employer to reinstate him becomes effective from the time the employer failed to reinstate him despite the issuance of a writ of execution. (Roquero vs. Philippine Air Lines, Inc., supra).

Remedy in case of employer's refusal to comply with writ of execution to reinstate is contempt citation.

If despite several writs of execution, the employer still refuses to reinstate the employee, the remedy is not the grant of additional backwages to serve as damages but to file a motion to cite the employer for contempt. (Christian Literature Crusade vs. NLRC, 171 SCRA 712, April 10, 1989; See also Industrial and Transport Equipment, Inc. vs. NLRC, G. R. No. 113592, Jan. 15, 1998).

Reinstatement in case of two successive dismissals.

In Sevilla vs. NLRC, [G. R. No. 108878, Sept. 20, 1994], a case involving two (2) successive dismissals, it was held that the order of reinstatement pending appeal under Article 223 issued in the first case, shall apply only to the first case and shall not affect the second dismissal. The Labor Arbiter was correct in denying the third motion for reinstatement filed by the petitioner (employee) because what she should have filed was a new complaint based on the second dismissal. The second dismissal gave rise to a new cause of action. Inasmuch as no new complaint was filed, the Labor Arbiter could not have ruled on the legality of the second dismissal.

Reinstatement when position already filled up.

If the former position is already filled up, the employee ordered reinstated under Article 223 should be admitted back to work in a substantially equivalent position. (Medina vs. Consolidated Broadcasting System [CBS]-DZWX, 222 SCRA 707; Pedroso vs. Castro, 141 SCRA 252 [1986]).

What are the rules in case of appeal involving monetary award?

The following basic principles are worth mentioning:

a.No monetary award, no appeal bond required.

b.Labor Arbiter's decision or order is required to state the amount awarded. If the amount of the monetary award is not included in the judgment, the appeal bond equivalent to the amount of the monetary award is not required to be posted. (Orozco vs. The Fifth Division of the Honorable Court of Appeals, [G. R. No. 155207, April 29, 2005])

c.Cash, property or surety bond is required for perfection of appeal from monetary award. The surety bond should be issued by an accredited surety company.

d.Bond should be posted within the 10-calendar day reglementary period.

e.Award of moral and exemplary damages and attorney's fees, excluded from computation of bond.

f.If bond is not genuine, appeal is not perfected.

g.Non-posting of bond will not perfect the appeal.

h.Remedy of employee in case employer failed to post bond is to file a motion to dismiss the appeal.

May a Motion to Reduce Bond be filed?

1. Motion to reduce bond may be grantedonly in meritorious casessuch as when the monetary claims have already prescribed.

2. The filing of a motion to reduce bond does not stop the running of the period to perfect appeal. In order to effectively stop the running of the period within which to perfect the appeal, the motion to reduce bond must comply with the requisites that:

1.it should be filed within the reglementary period;

2.it should be based on meritorious grounds; and

3.a reasonable amount of bond in relation to the monetary award should be posted together with said motion.

The failure to post the bond must be caused by a third party, not by the appellant himself.

In Mary Abigail's Food Services, Inc.