Professional Documents
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LABOR LAW
PURPLE NOTES
a. Nature of ULP
Elements:
1. There just be an employeremployee relationship between
the offender and offended
party; and
2. The act complained of must be
expressly
mentioned
and
defined in the Labor Code as
ULP
an
the
not
the
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LABOR LAW
PURPLE NOTES
Totality
of
Evidence
Doctrine/Totality
of
Conduct
Rule Effect of Failure to Act
Expressions of opinion by an
employer
which,
though
innocent
in
themselves,
frequently were held to be
culpable
because
of
the
circumstances
under
which
they are uttered; the history of
the
particular
employers
relations or anti-union bias
because of their connection
with an established collateral
plan of coercion or interference.
It is an expression which might
permissibly uttered by one
employer, might, in the mouth
of a more hostile employer, be
deemed
improper
and
consequently actionable as an
unfair labor practice.
When taken individually, It will
not be considered as ULP, but if
taken together and by the
totality conduct of it, the same
constitutes as ULP.
An
agreement which exacts from
workers
as
a
condition
of
employment, that they shall not
join
or
belong
to
a
labor
organization,
or
attempt
to
organize one, during their period of
employment or that they shall
withdraw therefrom, in case they
are already members of labor
organization
Exception
to
ULP
of
Interference:
Union
Security
Agreements.
3. Contract out services or functions
being
performed
by
union
members;
Subcontracting is a ULP when it is
motivated by a desire to prevent
the employees from organizing and
selecting a CBA representative
4. Initiate,
dominate,
assist
or
otherwise interfere with formation
or administration of any union;
5. Discriminate
in
terms
and
conditions
of
employment
to
encourage
or
discourage
membership
in
any
labor
organization;
Discrimination is not ULP per se, it
only becomes as such when it
encourage/discourage unionism.
Test of Discrimination: whenever
benefits or privileges given to one
is not given to the other under
similar or identical conditions when
directed
to
encourage
or
discourage union membership.
6. Dismiss, discharge or discriminate
an employee for having given or
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LABOR LAW
PURPLE NOTES
being about to
under this Code;
give
duly
to
testimony
bargain
G.R.
(Art.
249)
al.,
In determining whether
a discharge is discriminatory,
the
true
reason
for
the
discharge must be established.
While union activity is no bar to
a discharge, the existence of a
lawful cause for discharge is no
defense if the employee was
actually discharged for union
activity (Phil. Metal Foundries vs. CIR,
GR No. 34948-49 May 15, 1979).
Blue-sky
bargaining
means
making
exaggerated
or
unreasonable proposals (Arthur
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LABOR LAW
PURPLE NOTES
A. Sloane and Fred Witney, Labor
Relations, 7th Edition 1991, p. 195).
CIVIL CASE
CRIMINAL CASE
CRIMINAL CASE
Guilt
beyond
reasonable doubt.
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LABOR LAW
PURPLE NOTES
positions
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PURPLE NOTES
b. Lockout employer
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PURPLE NOTES
Procedural
but
Requisites (Art. 263)
4.
5.
6.
7.
Mandatory
There
is
non-conversion
between strike or lockout or
vice-versa because it is
different from each other. It
can however, happen at the
same time (Rizal Cement vs.
CIR, 6 SCRA 841).
i.
Notice of lockout 0
(Union Busting) or 15
(ULP) or 30 days
cooling-off
period;
with DOLE
days
days
(BD)
filed
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LABOR LAW
PURPLE NOTES
ii.
Note:
If
an
injunction
is
subsequently
ordered,
lockout
must cease
5. Requisite for lawful picketing
Elements:
1. There must be a labor issue;
2. It must be a concerted activity
of the union;
3. Characterized by the peaceful
marching to and fro at the
employees
premises
with
placards
to
appraise
the
employer and the public of their
demands;
Requisites for a valid picketing
1. The picket should be peacefully
carried out;
2. There should be no act of
violence,
coercion
or
intimidation attendant thereto;
3. The ingress to or egress from
the company premises should
not be obstructed; and
4. Public thoroughfares should not
be impeded.
6. Assumption of jurisdiction by
the Secretary of Labor or
Certification
of
the
Labor
dispute
to
the
NLRC
for
compulsory arbitration
2.
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LABOR LAW
PURPLE NOTES
law
8. Effect
of
assumption
orders
or
defiance
of
certification
Non-compliance
with
the
certification order of the Secretary
of Labor and Employment shall be
considered as an illegal act
committed in the course of the
strike
or
lockout,
and
shall
authorize the NLRC to enforce the
same under the pain of immediate
disciplinary
action,
including
dismissal or loss of employment
status or payment by the lockingout
employer
of
backwages,
damages and/or other affirmative
relief, even criminal prosecution
against the liable parties. (Sec. 4,
Rule VIII, 2005 NLRC Revised Rules of
Procedure)
Justifications:
1. A strike that is undertaken after
the issuance by the DOLE
Secretary of an assumption or
certification order becomes a
prohibited activity and thus
illegal. The defiant striking
union officers and members, as
a result, are deemed to have
lost their employment status for
having knowingly participated
in an illegal strike.
2. From the moment the worker
defies a return-to-work order,
he
is
deemed
to
have
abandoned his job.
3. By so defying, the workers have
forfeited their right to be
readmitted to work.
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LABOR LAW
PURPLE NOTES
ng Mga Manggagawa s
Kahoy
vs.
Gotamco
Sawmills. The worker can of
course give up his work,
thus severing his ties with
the company, if he does not
want to obey the order, but
the order must be obeyed if
he wants to retain his work
even if his inclination is to
strike.
9. Illegal Strike
A strike is illegal if it is declared
and staged:
1. without complying with the
procedural
but
mandatory
requisites;
2. For unlawful purpose such as to
compel the dismissal of an
employee
or
to
force
recognition of the union or for
trivial and puerile purpose to
circumvent
contracts
and
judicial orders;
3. Based on non-strikeable
invalid grounds:
or
a. inter-union or intra-union
disputes;
b. simple violation of CBA in
contrast to gross violation
thereof which is deemed
ULP;
c. violation of labor standards
d. Legislated
wage
orders
(wage distortion)
4. without first having bargained
collectively;
5. In violation of the no strike, no
lockout clause in the CBA;
6. Without submitting the issues
to the grievance machinery or
voluntary arbitration, or failing
to exhaust the steps provided
therein;
7. While
conciliation
mediation proceeding
going at the NCMB;
is
and
on-
8. Based
on
issues
already
brought
to
voluntary
or
compulsory arbitration;
9. During the pendency of a case
involving the same ground/s
cited in the notice of strike;
10. In defiance of an assumption or
certification or return-to-work
order;
11. In violation of a temporary
restraining
order
or
an
injunction order;
12. After the conversion of notice of
strike
into
a
preventive
mediation case;
13. Against the prohibition by law;
14. By an illegitimate union;
15. By a minority union;
16. By dismissed employees;
17. In violation of the company
code of conduct which prohibits
inciting or participating in
riots, disorders, alleged strikes
or
concerted
actions
detrimental
to
companys
interest The penalty for which
is dismissal;
18. As protest rallies in front of
government offices;
19. As welga ng bayan which is in
the nature of a general strike as
well as an extended sympathy
strike.
Examples of Illegal Strikes
1. Sit-Down Strike characterized
by temporary work stoppage of
worker who thereupon seize or
occupy
property
of
the
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LABOR LAW
PURPLE NOTES
illegal
a. Illegal Lockout
Any worker whose employment
has been terminated as a
consequence of an unlawful
lockout shall be entitled to
reinstatement with full back
wages (Art. 264(a), Labor Code).
b. Illegal Strikes
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 (Art.
264(a), Labor Code).
Rules on
workers
reinstatement
of
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LABOR LAW
PURPLE NOTES
Participati
on in Legal
Strikes
Participati
on
in
Illegal
Strikes
Union
Officers
Not deemed
to
have
abandoned
his
employmen
t;
not
a
ground for
his
dismissal
even if a
replacemen
t
has
already
been hired
Termination
of all union
officers who
knowingly
participated
in the illegal
strike.
and
Union
Members
Not deemed
to
have
abandoned
his
employmen
t;
not
a
ground for
his
dismissal
even if a
replacemen
t
has
already
been hired
For
an
ordinary
union
member to
suffer
termination,
it must be
shown
by
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LABOR LAW
PURPLE NOTES
Union
Officers
Reason for
the
Distinctio
n:
Union
officers
have
the
duty
to
guide their
members to
respect the
law.
If
instead
of
doing
so,
the officers
urged
the
members to
violate the
law
and
defy
duly
constituted
authorities,
their
dismissal
from
the
service
is
just penalty
or sanction
for
their
unlawful
act.
Union
Members
clear
evidence
that he has
committed
illegal acts
during the
strike.
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LABOR LAW
PURPLE NOTES
b. Liability of Employers
Liability of Employers in case of Strike
employers may be liable for the
following in favor of the employees
who did not commit any illegal acts
during the conduct of an illegal strike:
1.
Reinstatement
without
backwages;
2.
Separation Pay in lieu of
reinstatement;
c. Waiver of Illegality of Strike
Voluntary Reinstatement - The act
of an employer in inviting the workers
to return to their posts without making
any reference to the pending case
involving the issue of illegality of the
strike or imposing any condition or
alteration of the terms of their
employment was deemed a waiver of
its right to consider the strikers as
wrongdoers. More so in this case when
such invitation was accepted by the
strikers. By said act, the parties may
be said to have both abandoned their
original positions and come to a virtual
compromise to resume unconditionally
their former relations. (Citizens Labor
Union vs. Standard Vacuum Oil Co., G.R. No. L7478, May 6, 1955)
10. Injunctions
Injunction in Strikes and Lockouts
General Rule: Strikes and lockouts
that are validly declared enjoy the
protection of the law and cannot be
enjoined unless illegal acts are
committed or threatened to be
committed in the course thereof.
Exception: Injunction may be issued
not only against the commission of
illegal acts but against the strike itself
because the notice of strike filed by
the union has been converted into a
preventive mediation case. Having so
been converted, a strike can no longer
be staged based on said notice. Upon
such conversion, the legal effect is that
there is no more notice of strike to
speak of. (San Miguel Corporation vs. NLRC)
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LABOR LAW
PURPLE NOTES
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PURPLE NOTES
the
Innocent