Which among the following cannot validly create a local chapter?

1. Which among the following cannot validly create a local chapter? • (a) A federation; • (b) A national union; • (c) A trade union center; • (d) A federation with a pending case for cancellation of its registration; • (e) A federation that has failed to submit the reportorial requirements.

2. A trade union center CANNOT create a chapter • A trade union center is any group of registered national unions or federations organized for the mutual aid and protection of its members; for assisting such members in collective bargaining; or for participating in policy formulation. • A trade union center has no authority to charter directly. Under the law and the rules, the power granted to labor organizations to directly create a chapter or local through chartering is given to a federation or national union only, not to a trade union center. • San Miguel Corporation Employees Union v. San Miguel Packaging Products Employees Union, September 12, 2007

3. In case the applicant for registration as a legitimate labor organization is an independent union, it is required to submit the names of all its members and the total number of members should comprise a certain percentage of the total number of employees in the bargaining unit where it seeks to operate. What is this percentage requirement? • (a) Ten percent (10%); • (b) Fifteen (15%) percent; • (c) Twenty (20%) percent; • (d) Twenty five (25%) percent; • (e) Thirty (30%) percent.

4. Bigkis Union is an independent union that was organized two months ago. It now wants to register as a legitimate labor organization. To do so, Bigkis Union is required to comply with a list of requirements. Which among the following items is not part of the requirements that Bigkis Union must submit? • (a) Fifty pesos (P50.00) registration fee; • (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; • (c) The names of all its members; • (d) Copies of its annual financial reports; • (e) Four copies of its constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it.

5. 20% requirement must be at the time of registration • Art. 234(c) requires the list of names of all the union members comprising at least 20% of the bargaining unit. This should not be equated with the list of workers who participated in the organizational meetings (par [b]). • Subsequent affidavits of retraction (withdrawal of membership) will not retroact to the time of the application for registration or even way back to the organizational meeting. • Eagle Ridge Golf and Country Club v. CA, March 18, 2010

6. When will a local chapter acquire legal personality that will enable it to start the certification election process? • (a) Upon the issuance by the federation of a charter certificate; • (b) Upon the submission of the charter certificate to the Department of Labor and Employment (DOLE); • (c) Upon the submission of the required documents (names of officers, constitution, etc) to the DOLE; • (d) Upon the issuance by the DOLE of a certificate of creation of local chapter; • (e) Upon the registration of the name of the union in the DOLE’s roster of legitimate labor organizations.

7. Charter Certificate not required to be certified under oath • The charter certificate need not be certified under oath by the local union’s secretary or treasurer and attested to by its president. • Considering that the charter certificate is prepared and issued by the national union and not the local/chapter, it does not make sense to have the local/chapter’s officers certify or attest to the due execution of such document. • Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp., March 16, 2011

8. Mixture of R&F and Supervisory employees does not negate the union’s legitimacy • The mixture of rank-and-file and supervisory employees in a union does not nullify its legal personality as a legitimate labor organization. • Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp., March 16, 2011 • As amended by R.A. 9481, the Labor Code now allows a R&F union and a Supervisory union of the same company to be part of the same federation.

9. Certificate of Non-Forum Shopping NOT required in Petition for Certification Election • There is no requirement for a certificate of non-forum shopping in the Labor Code or in the rules. • A certification proceeding, even though initiated by a “petition,” is not a litigation but an investigation of a non-adversarial and fact-finding character. Such proceedings are not predicated upon an allegation of misconduct requiring relief, but, rather, are merely of an inquisitorial nature. • SAMMA-LIKHA v. SAMMA Corporation, March 13, 2009

10. Union’s legal personality not subject to collateral attack • The legal personality of petitioner union cannot be collaterally attacked in the certification election proceedings. A separate action for cancellation of the union’s registration/legal personality must be filed. • Samahang Manggagawa Sa Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp., March 16, 2011 • As amended by R.A. 9481, the Labor Code now provides that, in certification election cases, the employer shall not be considered a party with a concomitant right to oppose a petition for certification election.

11. Which among the following does not constitute a ground for cancellation of union registration? • (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws, the minutes of ratification, and the list of members who took part in the ratification; • (b) Misrepresentation, false statement or fraud in connection with the adoption or ratification of amendments to the constitution and by-laws, the minutes of ratification, and the list of members who took part in the ratification; • (c) Misrepresentation, false statement or fraud in connection with the election of officers, minutes of the election of officers and the list of voters; • (d) Failure to submit the documents mentioned in the preceding paragraphs within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto, or within thirty (30) days from election; • (e) Voluntary dissolution by the members.

12. Legitimate labor organizations are required to submit a number of documents to the Department of Labor and Employment as part of the reportorial requirements. Which among the following is not among the required documents? • (a) The union’s constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto; • (b) The list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; • (c) Its annual financial report within thirty (30) days after the close of every fiscal year; • (d) Its books of accounts; • (e) Its list of members at least once a year or whenever required by the Bureau.

13. Grounds for cancellation of union registration has been reduced • There are only THREE (3) grounds for cancellation of union registration: • (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; • (b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; • (c) Voluntary dissolution by the members. • Failure to comply with the reportorial requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty.

14. Whoever alleges fraud/misrepresentation has burden of proof • The charge that a labor organization committed fraud and misrepresentation in securing its registration is a serious charge that should be clearly established by evidence and the surrounding circumstances. • The petitioner (the party that filed the Petition for Cancellation) has the burden of proof. • Yokohama Tire Phils. v. Yokohama Employees Union, March 10, 2010; Heritage Hotel Manila v. PIGLAS-Heritage, October 30, 2009

15. Pagkakaisa ng Obrero Union is an independent union of the rank and file employees of the Mindanao plantations of Dirty Bananas Company. Who among the following employees of the company is eligible to join the union? • (a) The Executive Assistant to the Human Resource Manager; • (b) A supervisor who is assigned at the administration and finance office, and, not supervising the plantation employees; • (c) An agriculturist who has knowledge of a secret concoction that is being used as chemical treatment for the bananas; • (d) A rank and file employee who is working in the company’s Cebu plantation; • (e) One of the managers of the plantation employees.

16. Confidential Employees • 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 (2) criteria are cumulative, and both must be met • The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the “confidential employee rule.” • Tunay na Pagkakaisa ng Manggagawa sa Asia Brewery v. Asia Brewery, August 3, 2010

17. Probationary employees can join a union and can vote in a CE • Any employee, whether employed for a definite period or not, shall beginning on the first day of his/her service, be eligible for membership in any labor organization. In a certification election for the bargaining unit of rank and file employees, all rank and file employees, whether probationary or permanent are entitled to vote. As long as probationary employees belong to the defined bargaining unit, they are eligible to support the petition for certification election. • NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary, July 31, 2009

18. Signing of Petition for CE not disloyalty • The mere signing of the authorization in support of a Petition for Certification Election before the “freedom period,” is not sufficient ground to terminate the employment of union members under the Union Security Clause respondents inasmuch as the petition itself was actually filed during the freedom period. • PICOP Resources, Inc. v. Tañeca, August 9, 2010

19. Which among the following orders is not subject to appeal? • (a) An Order of the Med-Arbiter denying a Petition for Certification Election in an organized establishment; • (b) An Order of the Med-Arbiter denying a Petition for Certification Election in an unorganized establishment; • (c) An Order of the Med-Arbiter granting a Petition for Certification Election of Union A, the only existing union in the company; • (d) An Order of the Med-Arbiter granting a Petition for Certification Election of Union X, and disregarding the opposition of the forced intervenor, Union Y; • (e) An Order of the Med-Arbiter pertaining to the results of the certification election.

20. Among the following situations, when is it proper for the Med-Arbiter to issue an Order granting the petition for certification election, assuming all other requirements are met by the petition: • (a) The employer has questioned the legitimacy of the petitioner union, alleging that the Department of Labor and Employment’s own records show that the petitioner is not included in the list of registered legitimate labor organizations. • (b) The contending unions have agreed on the conduct of the certification election during the first conference. • (c) A valid certification election has just been conducted last month but none of the choices (the contending unions and the “No Union” choice) received majority of the valid votes cast. • (d) The incumbent bargaining agent has opposed the petition for certification election on the ground that there is an existing collective bargaining agreement, which, although not registered with the Department of Labor and Employment, is undisputedly still on its fourth year. • (e) The incumbent bargaining agent has opposed the petition on the ground that the parties have just reached a deadlock in negotiations and the union has filed a Notice of Strike.

21. Which among the following labor organizations is not qualified to acquire legal personality as a legitimate labor organization? • (a) Union A, a local chapter that has submitted all the required documents to the Department of Labor and Employment, with membership comprising 10% of the total number of employees in the bargaining unit; • (b) Union B, an independent union that has submitted the documentary requirements, with membership comprising 15% of the total number of employees in the bargaining unit; • (c) Union C, a local chapter, that has been issued a charter certificate by a duly registered federation, but has not submitted any document to the Department of Labor and Employment; • (d) Union D, an independent union that has the required membership and has submitted all the documentary requirements, except the financial statement; • (e) Union E, an independent union of rank and file employees that has five percent of its members occupying supervisory positions.

22. At the preliminary conference of a certification election case, the three contending unions have agreed to the conduct of a certification election. The employer objected. What should be the proper action of the Med-Arbiter? • (a) Require the parties to submit their respective position papers, so the petition can be resolved; • (b) End the preliminary conference and the certification election proceedings and tell the unions to conduct the consent election by themselves as they no longer need the intervention of the Department of Labor and Employment; • (c) Issue a decision directing the conduct of a certification election; • (d) Note in the minutes of the preliminary conference the agreement of the unions and refer the case to the election officer for the conduct of the pre-election proceedings; • (e) Issue a decision dismissing the petition as there is no more need for it in view of the agreement to conduct the certification election.

23. In the certification election for the regular rank and file employees of Damaso Company, 550 employees are in the list of voters, but 50 of these employees are challenged as non-eligible voters during the pre-election proceedings. The results are as follows: • Damaso Employees Union 50 • Kilusang Manggagawa sa Damaso 60 • No Union 100 • Spoiled ballots 20 • Challenged/Segregated votes 50 ------ • TOTAL 280

24. What is the proper next step? • (a) A run-off election should be conducted between the two unions; • (b) The “No-Union” choice should be declared the winner; • (c) The election should be considered a valid election without a winner; • (d) The eligibility of the challenged voters should be decided for the determination of the winner or the necessity of a run-off election; • (e) The eligibility of the challenged voters should be decided for the determination of the validity of the election.

25. Employer’s insistence to exclude a particular provision in the negotiations NOT refusal to bargain • The duty to bargain does not include the obligation to reach an agreement. While the law makes it an obligation for the employer and the employees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach an agreement. • Union of Filipro Employees v. Nestle Phils., March 3, 2008

26. STRIKE • The Labor Code defines “strike” as any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. • Certain forms of mass action by employees had been considered as strikes even if they do not squarely fall within this definition:

27. STRIKE • Employees who have no labor dispute with their employer but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan to protest the accelerating prices of oil commit an illegal work stoppage. • Biflex v. Filflex, December 19, 2006

28. STRIKE • Employees who reported for work with shaved heads during a bargaining deadlock situation were considered to have conducted an illegal strike. The employees’ collaborative effort to violate the Hotel’s grooming standards succeeded in forcing the employer to choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work, even if it had to cease operations in affected departments, which in either way would disrupt the operations of the Hotel. • NUWHRAIN-DUSIT Hotel v. CA, November 11, 2008

29. STRIKE • Employees’ refusal to work on three consecutive holidays, prompted by their disagreement with the management-imposed new work schedule, was considered a strike that was grounded on a non-strikeable issue, and a violation of the No-Strike Clause in the CBA. • A. Soriano Aviation v. Employees Association of A. Soriano Aviation, August 14, 2009

30. Employer may dismiss employees for illegal acts during a strike even if there is no petition to declare a strike illegal • The use of unlawful means in the course of a strike renders such strike illegal. The filing of a petition to declare the strike illegal is thus unnecessary. Article 263 provides that an employer may terminate employees found to have committed illegal acts in the course of a strike. • Jackbilt Industries v. Jackbilt Employees Union, March 20, 2009

31. Placards/Banners may make strike illegal • The display of placards and banners imputing criminal negligence on the part of the employer and its officers, apparently with the end in view of intimidating the employer’s clientele, are, given the nature of its business, that serious as to make the strike illegal. The putting up of those banners and placards, coupled with the name-calling and harassment, indicates that it was resorted to to coerce the resolution of the dispute. That the alleged acts were committed in nine non-consecutive days during the almost eight months that the strike was on-going does not render the violence less pervasive or widespread to be excusable. Art. 264 does not require that violence must be continuous or that it should be for the entire duration of the strike. • A. Soriano Aviation v. Employees Association of A. Soriano Aviation, August 14, 2009

32. How many types of notices are required for a valid strike? • (a) 2; • (b) 3; • (c) 4; • (d) 5; • (e) 6.

33. How many periods are relevant in the procedural requirements for a valid strike? • (a) 2; • (b) 3; • (c) 4; • (d) 5; • (e) 6.

34. The first collective bargaining agreement between KUMASA union and Alpha Manufacturing Company started its effectivity on February 2, 2005. Which of the following situations will not make their second CBA effective starting February 3, 2010? • (a) KUMASA and Alpha successfully completed their negotiations for the 2nd CBA on July 25, 2010 but signed the written agreement on August 30, 2010; • (b) KUMASA and Alpha signed the 2nd CBA on November 18, 2010, with a one-page supplemental agreement that provides for the retroactivity of the CBA; • (c) KUMASA and Alpha reached a deadlock in negotiations on April 1, 2010. The Secretary of Labor assumed jurisdiction over the dispute and issued a decision on July 4, 2010. Neither of the parties asked for a reconsideration of the decision; • (d) KUMASA and Alpha reached a deadlock in negotiations on November 10, 2010. The Secretary of Labor assumed jurisdiction over the dispute and issued a decision on March 21, 2011; • (e) KUMASA and Alpha successfully completed their negotiations and signed their 2nd CBA on May 1, 2010.

35. Which among the following is an illegal strike? • (a) A ULP strike that was started less than fifteen days from the submission of the notice of strike; • (b) A CBA deadlock strike, where there is no real deadlock, but is claimed by the union as a good faith strike; • (c) A mass action that was prompted by the company’s ULP where union members reported for work with heads bald, but the union submitted a notice of strike (for the mass action) and complied with other procedural requirements; • (d) A CBA deadlock strike that was started on the day the Secretary of Labor issued an Assumption Order; • (e) A ULP strike where the union claims the application of the good faith strike doctrine and substantial compliance to justify the failure to submit the 24-hour notice for the conduct of the strike vote.

36. A dismissed employee claims that, when he was dismissed, due process was not observed in the absence of a hearing in which he could have explained his side and refuted the evidence against him. Is this contention correct? • No. There is no need for a hearing or conference. Article 227 (b) of the Labor Code provides that, in cases of termination for a just cause, an employee must be given “ample opportunity to be heard and to defend himself.” This right to be heard is satisfied not only by a formal face to face confrontation but by any meaningful opportunity to controvert the charges against him and to submit evidence in support thereof. It does not mean verbal argumentation alone inasmuch as a person may be heard just as effectively through written explanations, submissions or pleadings. “Ample opportunity to be heard” means any meaningful opportunity – verbal or written – given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way. • (Perez v. PT&T, April 7, 2009)

37. When is a formal hearing or conference mandatory? • A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it. • (Perez v. PT&T, April 7, 2009)

38. A complaining employee won an illegal dismissal case with a favorable decision of the Labor Arbiter which ordered her immediate reinstatement. The employer opted payroll reinstatement pending appeal. The NLRC reversed the decision of the Labor Arbiter and ruled that the dismissal was valid. The employer stopped the payroll reinstatement. The employee elevated the case to the CA, and eventually to the SC. The SC upheld the dismissal. Is the employee entitled to continued payroll reinstatement after the NLRC decision? • No. The employee is not entitled to continued payroll reinstatement. The decision of the NLRC on appeals from decisions of the Labor Arbiter shall become final and executory after ten (10) calendar days from receipt thereof by the parties. That the CA may take cognizance of and resolve a petition for certiorari for the nullification of the decisions of the NLRC on jurisdictional and due process considerations does not affect the statutory finality of the NLRC decision. Since the NLRC decision which upheld the dismissal became final, the employer was correct in stopping the payroll reinstatement of the employee. • (Bago v. NLRC, April 4, 2007)

39. Can the award of backwages be limited even if there is a finding that there is no just cause for the dismissal? • Yes. As a general rule, when no just cause exists to warrant the employee’s dismissal, the employee is entitled to reinstatement to his former position without loss of seniority rights, and to payment of full backwages. However, the award of backwages can be limited in a situation where the employee is not entirely faultless, but the fault is not sufficient to justify termination. In such case, the employee’s fault cannot be condoned, much less tolerated. The award of backwages in favor of the employee can be limited, and the period for such award shall start from the date of the NLRC’s promulgation of the decision, instead of from the time of termination. • (Salas v. Aboitiz One, June 27, 2008)

40. Can the award of backwages be taken out altogether even if there is a finding of illegal dismissal? • Yes. The Court may not only mitigate, but also absolve entirely, the liability of the employer to pay backwages where good faith is evident. Likewise, backwages may be withheld from a dismissed employee where exceptional circumstances are availing. The award of backwages could be deleted when the employer’s only mistake was to strictly apply its company policy, and the employee’s right to due process was fully respected, but the Court eventually imposed the lighter penalty of suspension because dismissal was not commensurate to the offense committed by the employee. (Moreno v. San Sebastian College, March 28, 2008)

41. Can the employer demand that the employee reimburse the amount that had been paid under the period of payroll reinstatement? • No. Even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. The Labor Arbiter’s order of reinstatement is immediately executory and the employer has to either re-admit the employee to work under the same terms and condition prevailing prior to the dismissal, or to reinstate the employee in the payroll, and that failing to exercise the options in the alternative, employer must pay the employee’s salaries. If the employee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. The social justice principles of labor outweigh or render inapplicable the civil law doctrine of unjust enrichment. • (Garcia v. Philippine Airlines, January 20, 2009)

42. If no actual or payroll reinstatement was effected during the period of appeal despite the Labor Arbiter’s reinstatement order, can the employee still collect the wages due him for the period of the supposed reinstatement even after the Labor Arbiter’s decision has already been reversed by the NLRC? • Yes. The reinstatement aspect of the Labor Arbiter’s order is self-executory. The salary automatically accrued from notice of the Labor Arbiter’s order of reinstatement until its ultimate reversal by the NLRC or a higher court. Hence, even after the Labor Arbiter’s order has been reversed, the employee can still collect the wages due for the period of the reinstatement pending appeal. The employee may be barred from collecting the accrued wages, however, if it is shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of the employer.

43. Is there a need for a writ of execution before the Labor Arbiter’s order of reinstatement can be made executory? • No. The reinstatement aspect of the Labor Arbiter’s order is self-executory. The employee need not file a motion for the issuance of the writ of execution. Under the NLRC Rules of Procedure, the employer is required to submit a report of compliance within 10 calendar days from receipt of the Labor Arbiter’s decision. If the employer disobeys the directive or refuses to reinstate the dismissed employee, the Labor Arbiter shall immediately issue a writ of execution, i.e., motu propio. If the employer disobeys the writ, the employer may be cited for contempt. • (Garcia v. Philippine Airlines, January 20, 2009)

44. In an illegal dismissal case, the Labor Arbiter dismissed the complaint for illegal dismissal as he found the dismissed employee guilty of dishonesty as a form of serious misconduct and fraud. The Arbiter, however, ordered the reinstatement of the employee without backwages “as a measure of equitable and compassionate relief”. The employer appealed the decision to the NLRC. The employee claims that he is entitled to reinstatement pending appeal. Is the employee correct? • A: No. The provision mandating the immediate execution of the reinstatement order of the Labor Arbiter pending appeal applies only if there is a finding of illegal dismissal. Article 223 gives an interim relief, granted to an employee while the case for illegal dismissal is pending appeal. Where there is no finding of illegal dismissal, such interim relief does not apply. • (Lansangan v. Amkor Technology Philippines, January 30, 2009)

45. Does the Secretary of Labor have jurisdiction to determine the existence of employer-employee relationship in the exercise of the visitorial and enforcement powers under Article 128? • No. Article 128’s grant of visitorial and enforcement powers is for the purpose of determining violations of, and enforcing, the Labor Code and any labor law, wage order, or rules and regulations. If there is no employer-employee relationship in the first place, the duty of the employer to adhere to labor standards with respect to the non-employees is questionable. The Secretary’s power under Art. 128 does not apply in two instances: (a) where the employer-employee relationship has ceased; and (b) where no such relationship has ever existed. If there is a prima facie showing of the absence of employer-employee relationship, the Secretary is precluded from exercising the visitorial and enforcement powers. • (People’s Broadcasting v. Secretary, May 8, 2009)