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2007

Ia. What is the principle of codetermination?

The principle of co-determination refers to the right of workers to participate in policy anddecision-making processes directly affecting their rights and benefits, without intrudinginto matters of management prerogatives. (PAL v. NLRC, G.R. No. 85985, August 13,1993)

b. What, if any, is the basis under the Constitution for adopting it?Article XII (On Social Justice and Human Rights), Sec. 3, par. 2 provides, among others,that workers shall also participate in policy and decision-making processes affecting theirrights and benefits as may be provided by law.

IVa. The Globe Doctrine.

The Globe Doctrine refers to the method of determining the will or desire of the employeewhich is an important factor in determining the appropriate bargaining unit. The best wayto determine such preference is through referendum or plebiscite. (Globe Machine &Stamping Company, 3 NLRB 294 [1937])

b. The Community of Interest Rule.The Community of Interest Rule states that the employees within an appropriatebargaining unit must have commonality of collective bargaining interests as well assubstantial mutual interests in terms of employment and working conditions as evidencedby the type of work they perform. (San Miguel Corporation v. Laguesma, G.R. No.100485, September 21, 1984)

VMay non-lawyers appear before the NLRC or Labor Arbiter? May they chargeattorney's fee for such appearance provided it is charged against union funds and inan amount freely agreed upon by the parties? Discuss fully.

Yes, non-lawyers may appear before the Commission or any Labor Arbiter only:1. If they represent themselves; or2. If they represent their own legitimate labor organization or members thereof; or

3. If they are duly accredited by a Legal Aid Office which is DOJ or IBP-recognized.

No attorneys fees, negotiation fees or similar charges of any kind arising from any collectivebargaining agreement shall be imposed on any individual member of the contracting union:Provided, However, that attorneys fees may be charged against union funds in an amount to beagreed upon by the parties. Any contract, agreement or arrangement of any sort to the contraryshall be null and void.

VIProcedurally, how do you stay a decision, award or order of the Labor Arbiter? Discussfully.

a. The perfection of appeal shall stay the execution of the decision of a Labor Arbiter onappeal except partial execution for reinstatement pending appeal.

b. By filing for injunction within ten (10) calendar days from the receipt of the decision on thegrounds of grave abuse, intrinsic fraud, on pure questions of law and/or serious, erroneousfactual findings causing grave or irreparable damage, and such other grounds underArticle 223 of the Labor Code, as amended.

VIIa. May the NLRC or the courts take jurisdictional cognizance over compromise

agreements/settlements involving labor matters?The National Labor Relations Commission or any court, shall not assume jurisdictionover issues involved in any compromise settlement, including those involving labor standardlaws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regionaloffice of the Department of Labor except in case of non-compliance thereof or if there is

prima facie evidence that the settlement was obtained through fraud, misrepresentation, orcoercion. (Article 227 of the Labor Code)

b. How sacrosanct are statements/data made at conciliation proceedings in theDepartment of Labor and Employment? What is the philosophy behind youranswer?

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Under Article 223, statements made at conciliation proceedings are privilegedcommunications that can neither be used as evidence nor can conciliators testify on anymatters taken up in the proceedings. The philosophy is to ascertain the truth about thecontroversy which the parties may be afraid to divulge if the revelations can be utilizedagainst them later on.

VIIIDiscuss in full the jurisdiction over the civil and criminal aspects of a case involvingan unfair labor practice for which a charge is pending with the Department of Laborand Employment.

Unfair labor practices are not only violations of the civil rights of both labor andmanagement but are also criminal offenses against the State which shall be subject toprosecution and punishment as provided under the Labor Code.

Generally, the civil aspects of all cases involving unfair labor practices, which may includeclaims for actual, moral, exemplary and other forms of damages, attorneys fees and otheraffirmative relief, shall be under the jurisdiction of the Labor Arbiters.

Recovery of civil liability in the administrative proceedings shall bar recovery under theCivil Code.

No criminal prosecution involving ULP may be instituted without a final judgment findingthat an unfair labor practice was committed, having been first obtained in the administrativeproceedings. During the pendency of such administrative proceeding, the running of the periodof 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 thecriminal case nor be considered as evidence of guilt but merely as proof of compliance of therequirements therein set forth. (Article 247 of Labor Code)

In a labor dispute involving national interest, the Secretary of Labor under Article 263 (g)may take cognizance of the civil or administrative aspect of the labor case, depriving the LaborArbiter from taking cognizance of the unfair labor practice case. After the finality of judgmentfinding ULP, the criminal aspect can be instituted before the prosecutor.

IXDiscuss the legal requirements of a valid strike.

The exercise of the rights to strike or lockout shall be subject to the following requirements:(a) It must be based on valid and factual ground(b) a strike or lockout notice shall be filed with the labor department at least 15 days if the

issues raised are unfair labor practice or at least 30 days if the issue involved bargainingdeadlock

In cases of dismissal from employment of union officers duly elected in accordance with

the union constitution and by-laws, which may constitute UNION BUSTING where theexistence of the union is threatened, the 15-day cooling-off period shall not apply and theunion may take action immediately after the strike vote is conducted and the resultthereof submitted to the Department of Labor and Employment.

(c) the strike or lockout shall be supported by a majority vote of the members of the union orof the members of the board of directors of corporations or associations or partnership,obtained by secret ballot in a meeting called for the purpose; and

(d) strike lockout vote shall be reported to the labor department at least 7 days before theintended strike or lockout

In the event the result of the strike/lockout ballot is filed within the cooling-off period, the7-day requirement shall be counted from the day following the expiration of the cooling-offperiod. (NSFW vs. Ovejera, G.R. No. 59743, May 31, 1982)In case of dismissal from employment of union officers which may constitute unionbusting, the time requirement for the filing of the Notice of Strike shall be dispensed withbut the strike vote requirement being mandatory in character, shall in every case becomplied with.

The dispute must not be the subject of an assumption of jurisdiction by the President orthe Secretary of Labor and Employment, a certification for compulsory or voluntary

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arbitration nor a subject of a pending case involving the same grounds for the strike orlockout.

XDiscuss briefly the instances when non-compliance by the employer with areinstatement order of an illegally dismissed employee is allowed.

(1) when reasons exist which are not attributable to the fault or beyond the control of theemployer, such as, when the employer, who is in severe financial strait and has sufferedserious business losses, has ceased operations, implemented retrenchment, or abolishedthe position due to the installation of labor-saving devices;

(2) when the illegally dismissed employee has contracted a disease and his reinstatement willendanger the safety of his co-employees; or

(3) where strained relationship exists between the employer and the dismissed employee(PHESCHEM INDUSTRIAL CORPORATION v. Pablito Moldez)

XIa. As a rule, when is retirement due?

Any employee may be retired upon reaching the retirement age established in thecollective bargaining agreement or other applicable employment contract. (Article 287 ofthe Labor Code)

In the absence of a retirement plan or agreement providing for retirement benefits ofemployees in the establishment, an employee upon reaching the age of sixty (60) years ormore, but not beyond sixty-five (65) years which is hereby declared the compulsoryretirement age, who has served at least five (5) years in the said establishment, may retirexxx.

b. When is retirement due for underground miners?Optional retirement is due for underground miners upon reaching the age of 50 years

or more and compulsory retirement at age of 60 provided he has serve at least 5 years assuch. (R.A. 8558)

XIIa. How do you execute a labor judgment which, on appeal, had become final and

executory? Discuss fully.The Secretary of Labor and Employment or any Regional Director, the Commission or

any Labor Arbiter, or Med-Arbiter or Voluntary Arbitrator may, motu proprio or on motion ofany interested party, issue a writ of execution on a judgment within five (5) years from thedate it becomes final and executory, requiring a sheriff or a duly deputized officer to executeor enforce such final decisions, orders or awards. (Article 224 of Labor Code)

b. Cite two instances when an order of execution may be appealed.(a) If there isprima 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. (Article 223 of Labor Code)

XIIIMay a decision of the Labor Arbiter which has become final and executory be novatedthrough a compromise agreement of the parties?

Rights may be waived through a compromise agreement, notwithstanding a finaljudgment that has already settled the rights of the contracting parties. To be binding, thecompromise must be shown to have been voluntarily, freely and intelligently executed by theparties, who had full knowledge of the judgment. Furthermore, it must not be contrary to law,

morals, good customs and public policy.

The principle of novation supports the validity of a compromise after final judgment.Novation, a mode of extinguishing an obligation, is done by changing the object or principalcondition of an obligation, substituting the person of the debtor, or surrogating a third person inthe exercise of the rights of the creditor.

For an obligation to be extinguished by another, the law requires either of these twoconditions: (1) the substitution is unequivocally declared, or (2) the old and the new obligationsare incompatible on every point. A compromise of a final judgment operates as a novation of the

judgment obligation, upon compliance with either requisite. In the present case, the

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incompatibility of the final judgment with the compromise agreement is evident, because thelatter was precisely entered into to supersede the former. (Magbanua v. Uy, GR No. 161003)

XIVSome officers and rank-and-file members of the union staged an illegal strike. Theiremployer wants all the strikers dismissed. As the lawyer, what will you advise theemployer? Discuss fully.

The mere participation of a worker in a lawful strike shall not constitute sufficient groundfor termination of his employment. For a worker or union member to be dismissed, he must haveknowingly participates in the commission of illegal acts during a strike. However, any unionofficer who knowingly participates in an illegal strike may be declared to have lost hisemployment status. (Article 264 of the Labor Code)

XVIA carpenter is employed by a private university in Manila. Is the carpenter a regularor a casual employee? Discuss fully.

The carpenter is a casual employee. The carpenters work is not usually necessary anddesirable in the usual trade or business of the employer university. However, if the carpenter hasrendered services for at least one year, whether continuous or broken, he becomes a regularemployee by operation of law, with respect to the activity for which he is employed. Hisemployment shall continue while such activity exists.

XVIIP.D. 1508 requires the submission of disputes before the Barangay LupongTagapamayapa prior to the filing of cases with the courts or other government bodies.May this decree be used to defeat a labor case filed directly with the Labor Arbiter?Discuss fully.

The provisions of P.D. No. 1508 requiring the submission of disputes before the barangayLupong Tagapayapa prior to their filing with the court or other government offices are notapplicable to labor cases. Requiring conciliation of labor disputes before the barangay courtswould defeat the very salutary purposes of the law. Instead of simplifying labor proceedingsdesigned at expeditious settlement or referral to the proper court or office to decide it finally, theposition taken by the petitioner would only duplicate the conciliation proceedings and undulydelay the disposition of the labor case. (Montoya v. Escayo, GR Nos. 82211-12)

XIXCite five grounds for disciplinary action by the Philippine Overseas EmploymentAdministration (POEA) against overseas workers.Pre-Employment Stage:1. Using false information or documents for job application;2. Unjustified refusal to depart for overseas assignment.

Employment Stage:1. Commission of a criminal offense punishable by Philippine or host country laws;2. Unjustifiable breach of POEA contract;

3. Embezzlement of company funds;4. Embezzlement of money or property of fellow workers entrusted for delivery to relatives in thePhilippines;5. Violation of the religions or sacred practices of host country;6. Drunkenness and disorder;7. Desertion or abandonment of work;8. Immoral activities, including prostitution;9. Illegal gambling;10. Drug addiction;11. Creating trouble at the worksite or in the vessel;12. Initiating or joining a strike or work stoppage where the host country prohibits the same;13. Mutiny

2008

Ia. Explain the automatic renewal clause of collective bargaining agreements. (3%)

The "AUTOMATIC RENEWAL CLAUSE" in a CBA refers to that provision of the LaborCode (Article 253) which states that "It shall be the duty of both parties (to a CBA) to keep thestatus quo and to continue in full force and effect the terms and conditions of the existingagreement during the 60- day (freedom) period and/or until a new agreement is reached bythe parties."

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In the absence of a binding automatic renewal clause, a CBA ends on its terminationdate. Once a CBA expires, while the parties continue to negotiate for a successor agreement,their obligations to one another are governed by the doctrine of maintaining the status quo.

The principle of maintaining the status quo demands that all terms and conditions ofemployment remain the same during collective bargaining after a CBA has expired. This doesnot mean that the expired CBA continues in effect; rather, it means that the conditions underwhich the workers worked endure throughout the collective bargaining process.

Collective bargaining agreement is a contract executed upon request of either theemployer or the exclusive bargaining representative of the employees incorporating theagreement reached after negotiations with respect to wages, hours of work and all otherterms and conditions of employment, including proposals for adjusting any grievances orquestions under such agreement.

b. Explain the extent of the workers right to participate in policy and decision-makingprocess as provided under Article XIII, Section 3 of the Philippine Constitution.Does it include membership in the Board of Directors of a corporation? (3%)

From the deliberations by the 1986 Constitutional Commission, it can be gleaned thatthe intention by the framers of the Constitution was to provide for consultation with workerswith direct reference to negotiation on the terms and conditions of employment to beincluded in a collective bargaining agreement, as well as workers participation in theinterpretation and implementation of CBA, particularly with reference to the procedure ofsettling disputes concerning the CBA, through the grievance machinery and other voluntarymodes of settling disputes, such as conciliation, mediation, and arbitration. In short, theCommission intended workers to be consulted on matters affecting their rights.

Any provision of law to the contrary notwithstanding, workers shall have the right,subject to such rules and regulations as the Secretary of Labor and Employment maypromulgate, to participate in policy and decision-making processes of the establishmentwhere they are employed insofar as said processes will directly affect their rights, benefitsand welfare. For this purpose, workers and employers may form labor-management councils:Provided, That the representatives of the workers in such labor-management councils shall beelected by at least the majority of all employees in said establishment. (Article 255)

To ensure the participation of workers in decision and policy-making processesaffecting their rights, duties and welfare. (Article 211 (7))

IIa. What issues or disputes may be the subject of voluntary arbiration under the Labor

Code? (4%)

Cases arising from the interpretation or implementation of collective bargaining

agreements (Article 260)

those arising from the interpretation or enforcement of company personnel policies(Article 260)

The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of theparties, shall also hear and decide all other labor disputes including unfair laborpractices and bargaining deadlocks. (Article 262)

b. Can a dispute falling within the exclusive jurisdiction of the Labor Arbiter besubmitted to voluntary arbitration? Why or why not? (3%)

YES. The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of theparties, shall also hear and decide all other labor disputes including unfair labor practices andbargaining deadlocks. (Article 262)

Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert allefforts 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 originaljurisdiction. (Article 221)

In cases of strikes and lockouts, before or at any stage of the compulsory arbitrationprocess, the parties may opt to submit their dispute to voluntary arbitration. (Article 263 #8)

c. Can a dispute falling within the jurisdiction of a voluntary arbitrator be submittedto compulsory arbitration? Why or why not? (3%)

YES but only in cases of violations of the CBA which are gross in character. Grossviolations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal tocomply with the economic provisions of such agreement.

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IIISavoy Department Store (SDS) adopted a policy of hiring salesladies on five-monthcycles. At the end of a saleslady's five-month term, another person is hired asreplacement. Salesladies attend to store customers, wear SDS uniforms, report atspecified hours, and are subject to SDS workplace rules and regulations. Those whorefuse the 5-month employment contract are not hired.

The day after expiration of her 5-month engagement, Lina wore her SDS white andblue uniform and reported for work but was denied entry into the store premises.Agitated, she went on a hunger strike and stationed herself in front of one of thegates of SDS. Soon thereafter, other employees whose 5-month term had alsoelapsed, joined Lina's hunger strike.

a. Lina and 20 other saleladies filed a complaint for illegal dismissal, contedingthat they are SDS regular employees as they performed activities usuallynecessary or desirable in the usual business or trade of SDS and thus, theirconstitutional right to security of tenure was violated when they were dismissedwithout valid, just or authorized cause. SDS, in defense, argued that Lina, et al.Agreed - prior to engagement - to a fixed period employment and thus waivedtheir right to a full-term tenure. Decide the dispute. (4%)

It was ruled that an employee who has been engaged to perform work which is necessaryor desirable in the business or trade of the company, is deemed a regular employee.

This scheme of SDS was apparently designed to prevent Lina and the other casualemployees from attaining the status of a regular employee. It was a clear circumventionof the employees right to security of tenure and to other benefits like minimum wage,cost-of-living allowance, sick leave, holiday pay, and 13th month pay.

b. The owner of SDS considered the hunger strike staged by Lina, et al.., aneyesore and disruptive of SDS business. He wrote the Secretary of Labor a letterasking him to assume jurisdiction over the dispute and enjoin the hunger"strike". What answer will you give if you were the Secretary of Labor? (3%)NO. The DOLE Secretary may assume jurisdiction over a labor dispute, or certify it to theNLRC for compulsory arbitration, if, in his opinion, it may cause or likely to cause a strikeor lockout in an industry indispensable to the national interest.

c. Assume that no fixed-term worker complained, yet in a routine inspection alabor inspector of the Regional Office of the Labor Code's security of tenureprovisions and recommended to the Regional Director the issuance of acompliance order. The Regional Director adopted the recommendation andissued a compliance order. Is the compliance order valid? Explain your answer.(3%)

The Secretary of Labor and Employment or his duly authorized representatives shall havethe power to issue compliance orders to give effect to the labor standards provisions ofthis Code and other labor legislation based on the findings of labor employment andenforcement officers or industrial safety engineers made in the course of inspection.

VSuper Comfort Hotel employed a regular pool of "extra waiters" who are called orasked to report for duty when the Hotel's volume of business is beyond the capacityof the regularly employed waiters to undertake. Pedro has been an "extra waiter" formore than 10 years. He is also called upon to work on weekends, on holidays andwhen there are big affairs at the hotel.

What is Pedro's status as an employee under the Labor Code? Why? Explain youranswer fully. (6%)REGULAR EMPLOYEEThe two kinds of regular employees under the law are (1) those

engaged to perform activities which are necessary or desirable in the usual business or trade ofthe employer; and (2) those casual employees who have rendered at least one year of service,whether continuous or broken, with respect to the activities in which they are employed. Theprimary standard to determine a regular employment is the reasonable connection between theparticular activity performed by the employee in relation to the business or trade of theemployer. The test is whether the former is usually necessary or desirable in the usual businessor trade of the employer. If the employee has been performing the job for at least one year, evenif the performance is not continuous or merely intermittent, the law deems the repeated and

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continuing need for its performance as sufficient evidence of the necessity, if not indispensabilityof that activity to the business of the employer. Hence, the employment is also consideredregular, but only with respect to such activity and while such activity exists. The law does notprovide the qualification that the employee must first be issued a regular appointment or mustbe declared as such before he can acquire a regular employee status.

VIOn the day that the Union could validly declare a strike, the Secretary of Labor issuedan order assuming jurisdiction over the dispute and enjoining the strike, or if one hascommenced, ordering the striking workers to immediately return to work. The return-to-work order required the employees to return to work within twenty-four hours andwas served at 8 a.m. of the day the strike was to start. The order at the same timedirected the Company to accept all employees under the same terms and conditionsof employment prior to the work stoppage. The Union members did not return to workon the day the Secretary's assumption order was served nor on the next day; instead,they held a continuing protest rally against the company's alleged unfair laborpractices. Because of the accompanying picket, some of the employees who wantedto return to work failed to do so. On the 3rd day, the workers reported for work,claiming that they do so in compliance with the Secretary's return-to-work order thatbinds them as well as the Company. The Company, however, refused to admit themback since they had violated the Secretary's return-to-work order and are nowconsidered to have lost their employment status.

The Union officers and members filed a complaint for illegal dismissal arguing thatthere was no strike but a protest rally which is a valid exercise of the workersconstitutional right to peaceable assembly and freedom of expression. Hence, therewas no basis for the termination of their employment.

You are the Labor Arbiter to whom the case was raffled. Decide, ruling on thefollowing issues:

a. Was there a strike? (4%)YES. A strike means any temporary stoppage of work by the concerted action ofemployees as a result of an industrial or labor dispute. A labor dispute, in turn, includesany controversy or matter concerning terms or conditions of employment or theassociation or representation of persons in negotiating, fixing, maintaining, changing, orarranging the terms and conditions of employment, regardless of whether the disputantsstand in the proximate relation of the employer and the employee.

[t]he fact that the conventional term strike was not used by the striking employees todescribe their common course of action is inconsequential, since the substance of thesituation and not its appearance, will be deemed controlling. The term strike has beenelucidated to encompass not only concerted work stoppages, but also slowdowns, massleaves, sit-downs, attempts to damage, destroy, or sabotage plant equipment andfacilities, and similar activities.

b. Were the employees simply exercising their constitutional right to petition forredness of their grievances?Applying pertinent legal provisions and jurisprudence, the protest actions undertaken bythe Union members are not valid and proper exercises of their right to assemble and askgovernment for redress of their complaints, but are illegal strikes in breach of the LaborCode. The Unions position is weakened by the lack of permit to hold rallies. Shrouded asdemonstrations, they were in reality temporary stoppages of work perpetrated throughthe concerted action of the employees who deliberately failed to report for work on theconvenient excuse that they will hold a rally.

The purported reason for these protest actions was to safeguard their rights against

alleged unfair labor practices, in violation of the provision of the Labor Code. This is not alegal and valid exercise of the right of assembly and to demand redress of grievance.

c. What are the consequences, if any, of the acts of the employees? (3%)A strike that is undertaken after the issuance by the Secretary of Labor and Employmentof an assumption or certification order becomes a prohibited activity and thus illegal,pursuant to the second paragraph of Article 264 of the Labor Code. The union officers andmembers, as a result, are deemed to have lost their employment status for havingknowingly participated in an illegal strike. Stated differently, from the moment a workerdefies a return-to-work order, he is deemed to have abandoned his job. The loss ofemployment results from the striking employees own act - an act which is illegal, an act in

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violation of the law and in defiance of authority. (Philippine Airlines, Inc. vs. Brillantes, G.R. No. 119360, Oct. 10, 1997).

Of course, those employees who wanted to return to work but were not able to do sobecause of the picket, may show proof in their favor.

- X -Pepe Santos was an international flight steward of Flysafe Airlines. Under FSA's CabinCrew Administration Manual, Santos must maintain, given his height and body frame,a weight of 150 to 170 pounds.

After 5 years as a flight steward, Santos began struggling with his weight; heweighed 200 lbs., 30 pounds over the prescribed maximum weight. The Airline gavehim a one-year period to attain the prescribed weight, and enrolled him in severalweight reduction programs. He consistently failed to meet his target. He was given a6-month grace period, after which he still failed to meet the weight limit. FSC thussent him a Notice of Administrative Charge for violation of company standards onweight requirements. He stated in his answer that, for medical reasons, he cannothave a rapid weight loss. A clarificatory hearing was held where Santos fullyexplained his predicament. The explanation did not satisfy FSA and so it decided toterminate Santos's service for violation of company standards.

Santos filed a complaint for illegal dismissal, arguing that the company's weightrequirement policy is unreasonable and that his case is not a disciplinary but amedical issue (as one gets older, the natural tendency is to grow heavier). FSAdefended its policy as a valid exercise of management prerogative and from the pointof view of passenger safety and extraordinary diligence required by law of commoncarriers; it also posited that Santos failure to achieve his ideal weight constitutedgross and habitual neglect of duty, as well as willful disobedience to lawful employerorders. The Labor Arbiter found the dismissal illegal for there was neither gross andhabitual neglect of duty nor willful disobedience.

Is the Labor Arbiter correct? Why or why not? Explain fully. (6%)

[T]he standards violated in this case were not mere orders of the employer; they werethe prescribed weights that a cabin crew must maintain in order to qualify for and keephis or her position in the company. In other words, they were standards that establishcontinuing qualifications for an employees position. In this sense, the failure to maintainthese standards does not fall under Article 282(a) whose express terms require the element ofwillfulness in order to be a ground for dismissal. The failure to meet the employers qualifyingstandards is in fact a ground that does not squarely fall under grounds (a) to (d) and istherefore one that falls under Article 282(e) the other causes analogous to the foregoing.

By its nature, these qualifying standards are norms that applyprior to and afteran

employee is hired. They applyprior to employmentbecause these are the standards a jobapplicant must initially meet in order to be hired. They apply after hiring because an employeemust continue to meet these standards while on the job in order to keep his job. Under thisperspective, a violation is not one of the faults for which an employee can be dismissed pursuantto pars. (a) to (d) of Article 282; the employee can be dismissed simply because he no longerqualifies for his job irrespective of whether or not the failure to qualify was willful orintentional.

- XI -Complaints had worked five (5) years as waitresses in a cocktail lounge owned by therespondent. They did not receive any salary directly from the respondent but sharedin all service charges collected for food and drinks to the extent of 75%. With

respondent's prior permission, they could sit with and entertain guest inside theestablishment and appropriate for themselves the tips given by guests. After five (5)years, the complaints individual shares in the collected service charges dipped tobelow minimum wage level as a consequence of the lounge's marked businessdecline. Thereupon, complaints asked respondent to increase their share in thecollected service charges to 85% or the minimum wage level, whichever is higher.

Respondent terminated the services of the complainants who countered by filing aconsolidated complaint for unlawful dismissal, with prayer for 85% of the collectedservices or the minimum wage for the appropriate periods, whichever is higher.Decide. (6%)

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In accordance with the provision of Article 138 of the Labor Code and its implementingrules, women working in night clubs, cocktail lounge, and similar establishments are consideredregular employees thereof considering that they are made to perform activities that are usuallynecessary or desirable in the usual business or trade of their employer. Thus, they are entitled tosecurity of tenure. They cannot be terminated unless for just or authorized causes.

- XII -Arnaldo, President of "Bisig" Union in Femwear Company, readied himself to leaveexactly at 5:00 p.m. which was the end of his normal shift to be able to send off hiswife who was scheduled to leave for overseas. However, the General Managerrequired him to render overtime work to meet the company's export quota. Arnaldobegged off, explaining to the General Manager that he had to send off his wife whowas leaving to work abroad. The company dismissed Arnaldo for insubordination. Hefiled a case for illegal dismissal. Decide (6%)

NO. For insubordination or willful disobedience to be a just cause for termination ofemployees, the following requisites must concur:

(1) the employees assailed conduct must have been willful, that is, characterized by awrongful and perverse attitude; and

(2) the order violated must have been reasonable, lawful, made known to the employee, andmust pertain to the duties which he had been engaged to discharge

Requisite number 1 is not complied with. In one case, willfulness was described ascharacterized by a wrongful and perverse mental attitude rendering the employees actinconsistent with proper subordination. The fact that Arnaldo refused to render OT services tosend off his wife, and the same order to render OT having been made after his time out, thesame do not show that his act is one of willful disobedience.

In the instant case, both requirements were not present. It is true that under the LaborCode, an employee may be required by the employer to perform overtime work in any instancesprovided under the same Code. The order of the GM for Arnaldo to render OT services to meetthe companys expert quota is not among those instances. Therefore, requisite number 2 isabsent.

- XIII -The rank-and-file union staged a strike in the company premises which caused thedisruption of business operations. The supervisors union of the same company filed amoney claim for unpaid salaries for the duration of the strike, arguing that thesupervisors' failure to report for work was not attributable to them. The companycontended that it was equally faultless, for the strike was not the direct consequenceof any lockout or unfair labor practice. May the company be held liable for the salariesof the supervisor? Decide (6%)

The age-old rule governing the relation between labor and capital or management andemployee is that of a 'fair day's wage for a fair day's labor.' If there is no work performed by theemployee there can be no wage or pay, unless of course the laborer was able, willing and readyto work but was illegally locked out, dismissed or suspended. It is hardly fair or just for anemployee or laborer to fight or litigate against his employer on the employer's time.

In this case, the failure to work on the part of the members of respondent Union was dueto circumstances not attributable to themselves. But neither should the burden of the economicloss suffered by them be shifted to their employer, which was equally faultless, considering thatthe situation was not a direct consequence of the employer's lockout or unfair labor practice.Under the circumstances, it is but fair that each party must bear his own loss.

- XIV -"Puwersa", a labor federation, after having won in a certification election held in thecompany premises, sent a letter to respondent company reminding it of its obligationto recognize the local union. Respondent company replied that through it is willing;the rank-and-file employees had already lost interest in joining the local union as theyhad dissolved it. "Puwersa" argued that since it won in a certification election, it canvalidly perform its function as a bargaining agent and represent the rank-and-fileemployees despite the union's dissolution.

Is the argument of "Puwersa" tenable? Decide with reasons. (6%)2009

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PART II

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false.Explain your answer in not more than two (2) sentences. (5%)a. An employment contract prohibiting employment in a competing company within

one year from separation is valid.TRUE The restriction did not prohibit the agent from engaging in any other business, orfrom being connected with any other company, for as long as the business or company didnot compete with the principals business. Further, the prohibition applied only for one yearafter the termination of the contract and was therefore a reasonable restriction designed toprevent acts prejudicial to the employer.

Conformably then with the aforementioned pronouncements, a non-involvement clause is notnecessarily void for being in restraint of trade as long as there are reasonable limitations asto time, trade, and place.

Article 1306 of the Civil Code provides that parties to a contract may establish suchstipulations, clauses, terms and conditions as they may deem convenient, provided they arenot contrary to law, morals, good customs, public order, or public policy.

Article 1159 of the same Code also provides that obligations arising from contracts have theforce of law between the contracting parties and should be complied with in good faith.

Not being contrary to public policy, the non-involvement clause, which petitioner andrespondent freely agreed upon, has the force of law between them, and thus, should becomplied with in good faith.

b. All confidential employees are disqualified to unionize for the purpose of collectivebargaining.FALSEUnder the confidential employee rule, confidential employees are not allowed to

join any union, when they (1) assist or act in a confidential capacity, and (2) to persons whoformulate, determine, and effectuate management policies specifically, in the field of laborrelations. Otherwise, if these two conditions do not concur, they can join a union.

c. A runaway shop is an act constituting unfair labor practice.FALSEA runaway shop is an industrial plant moved by its owners from one location toanother to escape union labor regulations or states laws. It may also be a relocationmotivated by anti-union animus rather than for business reasons.

d. In the law on labor relations, the substitutionary doctrine prohibits a newcollective bargaining agent from repudiating an existing collective bargainingagreement.

The "substitutionary" doctrine only provides that the employees cannot revoke the validly

executed collective bargaining contract with their employer by the simple expedient ofchanging their bargaining agent. And it is in the light of this that the phrase "said new agentwould have to respect said contract" must be understood. It only means that the employees,thru their new bargaining agent, cannot renege on their collective bargaining contract, exceptof course to negotiate with management for the shortening thereof.

IIClarito, an employee of Juan, was dismissed for allegedly stealing Juans wristwatch.In the illegal dismissal case instituted by Clarito, the Labor Arbiter, citing Article 4 ofthe Labor Code, ruled in favor of Clarito upon finding Juans testimony doubtful. Onappeal, the NLRC reversed the Labor Arbiter holding that Article 4 applies only whenthe doubt involves "implementation and interpretation" of the Labor Code provisions.

The NLRC explained that the doubt may not necessarily be resolved in favor of laborsince this case involves the application of the Rules on Evidence, not the Labor Code.Is the NLRC correct? Reasons. (3%)

IIIRichie, a driver-mechanic, was recruited by Supreme Recruiters (SR) and its principal,Mideast Recruitment Agency (MRA), to work in Qatar for a period of two (2) years.However, soon after the contract was approved by POEA, MRA advised SR to foregoRichies deployment because it had already hired another Filipino driver-mechanic,who had just completed his contract in Qatar. Aggrieved, Richie filed with the NLRC a

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complaint against SR and MRA for damages corresponding to his two years salaryunder the POEA-approved contract.

SR and MRA traversed Richies complaint, raising the following arguments:a. The Labor Arbiter has no jurisdiction over the case; (2%)b. Because Richie was not able to leave for Qatar, no employer-employee

relationship was established between them; (2%) andc. Even assuming that they are liable, their liability would, at most, be equivalent

to Richies salary for only six (6) months, not two years. (3%).

Rule on the validity of the foregoing arguments with reasons.

a. It has. Under the migrant workers and overseas Filipino act, it is provided thatnotwithstanding any provisions of law to the contrary, the Labor Arbiters shall have originaland exclusive jurisdiction to hear and decide, the claims arising out of an employer-employeerelationship or by virtue of any law or contract involving Filipino workers for overseasdeployment including claims for actual, moral, exemplary and other forms of damages.

b. The employment contract did not commence when Richie was not able to leave for Qatar;thus, no employer-employee relationship was created between the parties. Nevertheless,even before the start of any employer-employee relationship, contemporaneous with theperfection of the employment contract was the birth of certain rights and obligations, thebreach of which may give rise to a cause of action against the erring party.

c. SR and MRAs act of preventing Richie from leaving and complying with his contract ofemployment constitutes breach of contract for which SR and MRA are liable for actualdamages to Richie for the loss of two-year salary as provided in the contract.

IVDiosdado, a carpenter, was hired by Building Industries Corporation (BIC), andassigned to build a small house in Alabang. His contract of employment specificallyreferred to him as a "project employee," although it did not provide any particulardate of completion of the project.

Is the completion of the house a valid cause for the termination of Diosdadosemployment? If so, what are the due process requirements that the BIC must satisfy?If not, why not? (3%)

NO because he is deemed a regular employee in this case, therefore, he is entitled tosecurity of tenure and the completion of the house is not one of those just and authorized causesto terminate him. Settled is the rule that the duration of the project employment as well as theparticular work or service to be performed should be defined in an employment agreement andmust be made clear to the employees at the time of hiring. Failure to do so would make themregular employees.

Va. Baldo was dismissed from employment for having been absent without leave

(AWOL) for eight (8) months. It turned out that the reason for his absence was hisincarceration after he was mistaken as his neighbors killer. Eventually acquittedand released from jail, Baldo returned to his employer and demandedreinstatement and full backwages. Is Baldo entitled to reinstatement andbackwages? Explain your answer. (3%)

The cause of Baldos dismissal from his employment turned out be non-existent. Hisabsence cannot be deemed an abandonment of work. Abandonment is a matter of intentionand cannot lightly be inferred or legally presumed from certain equivocal acts. Mere absence

or failure to report for work, even after notice to return, is not tantamount to abandonment.Moreover, Baldos acquittal for murder/ homicide makes it more compelling to view theillegality of his dismissal.

Having been dismissed illegally, Baldo is entitled to reinstatement. With regardspayment of backwages, the Supreme Court ruled in many cases, that Baldo is not entitled toany salary during the period of his detention. His entitlement to full backwages commencedfrom the time his employer refused his reinstatement; hence, the reckoning point for thegrant of backwages started therefrom.

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b. Domingo, a bus conductor of San Juan Transportation Company, intentionally didnot issue a ticket to a female passenger, Kim, his long-time crush. As a result,Domingo was dismissed from employment for fraud or willful breach of trust.Domingo contests his dismissal, claiming that he is not a confidential employeeand, therefore, cannot be dismissed from the service for breach of trust. IsDomingo correct? Reasons. (2%)

NO. Loss of confidence should ideally apply only to cases involving employeesoccupying positions of trust and confidence or to those situations where the employee isroutinely charged with the care and custody of the employer's money or property. To thesecond class belong cashiers, auditors, property custodians, etc., or those who, in the normaland routine exercise of their functions, regularly handle significant amounts of money orproperty. A bus conductor entrusted with the collection and custody of the money from faresof the passengers, belongs to this second class of confidential employees. His position wasthus one of trust and confidence, loss of which was a just cause for his dismissal.

VIIJohnny is the duly elected President and principal union organizer of theNagkakaisang Manggagawa ng Manila Restaurant (NMMR), a legitimate labororganization. He was unceremoniously dismissed by management for spendingvirtually 95% of his working hours in union activities. On the same day Johnnyreceived the notice of termination, the labor union went on strike.

Management filed an action to declare the strike illegal, contending that:a. The union did not observe the "cooling-off period" mandated by the Labor Code;

(2%) andThe strike is illegal for having failed to comply with the mandatory requisite of

observance of cooling-off period. The GR is that cooling off period must be observed sothat parties have the opportunity to settle the dispute, except in the case of union-busting.

b. The union went on strike without complying with the strike-vote requirementunder the Labor Code. (2%)

The strike is illegal for having failed to comply with the mandatory proceduralrequirement.

c. The Labor Arbiter found management guilty of unfair labor practice for theunlawful dismissal of Johnny. The decision became final. Thereafter, the NMMRfiled a criminal case against the Manager of Manila Restaurant. Would the LaborArbiters finding be sufficient to secure the Managers conviction? Why or whynot? (2%)

NO. Verily, the dismissal without just cause of an employee from his employmentconstitutes a violation of the Labor Code and its implementing rules and regulations. Suchviolation, however, does not amount to an "offense" as understood under Article 291 of

the Labor Code. In its broad sense, an offense is an illegal act which does not amount to acrime as defined in the penal law, but which by statute carries with it a penalty similar tothose imposed by law for the punishment of a crime.

VIIIAlexander, a security guard of Jaguar Security Agency (JSA), could not be given anyassignment because no client would accept him. He had a face only a mother couldlove. After six (6) months of being on "floating" status, Alexander sued JSA forconstructive dismissal. The Labor Arbiter upheld Alexanders claim of constructivedismissal and ordered JSA to immediately reinstate Alexander. JSA appealed thedecision to the NLRC. Alexander sought immediate enforcement of the reinstatementorder while the appeal was pending.

JSA hires you as lawyer, and seeks your advice on the following:a. Because JSA has no client who would accept Alexander, can it still be compelled

to reinstate him pending appeal even if it has posted an appeal bond? (2%)The decision of the Labor Arbiter reinstating a dismissed or separated employee,

insofar as the reinstatement aspect is concerned, shall immediately be executory, evenpending appeal. The employee shall either be admitted back to work under the sameterms and conditions prevailing prior to his dismissal or separation or, at the option of theemployer, merely reinstated in the payroll. The posting of a bond by the employer shallnot stay the execution for reinstatement provided herein.

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b. Can the order of reinstatement be immediately enforced in the absence of amotion for the issuance of a writ of execution? (2%)

Reinstatement pending appeal necessitates that it must be immediately self-executory without need for a writ of execution during the pendency of the appeal, if thelaw is to serve its noble purpose, and any attempt on the part of the employer to evade ordelay its execution should not be allowed.

c. If the order of reinstatement is being enforced, what should JSA do in order toprevent reinstatement? (2%)

Ask for separation pay in lieu of reinstatement invoking the Doctrine of StrainedRelationsUnder the law and prevailing jurisprudence, an illegally dismissed employee isentitled to reinstatement as a matter of right. However, if reinstatement would onlyexacerbate the tension and strained relations between the parties, or where therelationship between the employer and the employee has been unduly strained by reasonof their irreconcilable differences,particularly where the illegally dismissed employee helda managerial or key position in the company, it would be more prudent to order paymentof separation pay instead of reinstatement.

Under the doctrine of strained relations, the payment of separation pay isconsidered an acceptable alternative to reinstatement when the latter option is no longerdesirable or viable. On one hand, such payment liberates the employee from what couldbe a highly oppressive work environment. On the other hand, it releases the employerfrom the grossly unpalatable obligation of maintaining in its employ a worker it could nolonger trust.

In such cases, it should be proved that the employee concerned occupies a positionwhere he enjoys the trust and confidence of his employer; and that it is likely that ifreinstated, an atmosphere of antipathy and antagonism may be generated as to adverselyaffect the efficiency and productivity of the employee concerned

IXa. What is wage distortion? Can a labor union invoke wage distortion as a valid

ground to go on strike? Explain.There is wage distortion when the following four elements concur:

a. An existing hierarchy of positions with corresponding salary rates;b. A significant change in the salary rate of a lower pay class without a concomitant

increase in the salary rate of a higher one;c. The elimination of the distinction between the two levels; andd. The existence of the distortion in the same region of the country.

NO. Section 16, Chapter I of Rules Implementing RA 6727 provides that "Any dispute involvingwage distortions shall not be a ground for strike/lockout." Article 124 of the Labor Code, asamended by Republic Act 6727 prescribes a procedure for the correction of a wage distortion,implicitly excluding strikes or lockouts or other concerted activities as modes of settlement ofthe issue. The legislative intent that wage distortion shall be solved by voluntary negotiationor arbitration is made clear in the rules (Ilaiv at Buklod ng Manggagawa v. NLRC, G.R. No.

91980, June 27, 1991).

b. What procedural remedies are open to workers who seek correction of wagedistortion? (2%)In organized establishments, the wage distortion shall be resolved through the GRIEVANCEPROCEDURE under their collective bargaining agreement, and if it remains unresolved,through VOLUNTARY ARBITRATION. On the other hand, in establishments where there are nocollective bargaining agreements or recognized labor unions, the employers and workers shallendeavor to correct such distortion. Any dispute arising therefrom shall be settled throughthe National Conciliation and Mediation Board, and if it remains unresolved after ten (10)calendar days of conciliation, shall be referred to the appropriate branch of the National LaborRelations Commission for COMPULSORY ARBITRATION (Article 124, Labor Code of the

Philippines).

PART IIXI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. (5%)a. Seafarers who have worked for twenty (20) years on board the same vessel are

regular employees.FALSESeafarers are considered contractual employees. They cannot be considered asregular employees under Article 280 of the Labor Code. Their employment is governed by thecontracts they sign every time they are rehired and their employment is terminated when thecontract expires. Their employment is contractually fixed for a certain period of time.

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Although they have worked for 20 years, still there are certain forms of employment whichalso require the performance of usual and desirable functions and which exceed one year butdo not necessarily attain regular employment status under Article 280. Overseas workersincluding seafarers fall under this type of employment which is governed by the mutualagreements of the parties.

b. Government employees have the right to organize and join concerted mass actionswithout incurring administrative liability.FALSEConcerted activities and strikes by government employees are not allowed becausethe terms and employment of government employment are governed by law. They may,however, organize government employees organization and may negotiate certain terms andconditions of employment except those requiring appropriations or exercise of prerogatives.

XVAmong the 400 regular rank-and-file workers of MNO Company, a certification electionwas ordered conducted by the Med-Arbiter of the Region. The contending partiesobtained the following votes:

1. Union A - 702. Union B - 713. Union C - 424. Union D - 335. No union - 1806. Spoiled votes - 4

There were no objections or challenges raised by any party on the results of theelection.

a. Can Union B be certified as the sole and exclusive collective bargaining agentamong the rank-and-file workers of MNO Company considering that it garneredthe highest number of votes among the contending unions? Why or why not?(3%)

NO. The purpose of a certification election is precisely the ascertainment of thewishes of the majority of the employees in the appropriate bargaining unit: to be or not tobe represented by a labor organization, and in the affirmative case, by which particularlabor organization. If the results of the election should disclose that the majority of theworkers do not wish to be represented by any union, then their wishes must be respected,and no union may properly be certified as the exclusive representative of the workers inthe bargaining unit in dealing with the employer regarding wages, hours and other termsand conditions of employment. The minority employees who wish to have a unionrepresent them in collective bargaining can do nothing but wait for another suitableoccasion to petition for a certification election and hope that the results will be different.

b. May the management or lawyer of MNO Company legally ask for the absolutetermination of the certification election proceedings because 180 of the workers--- a clear plurality of the voters --- have chosen not to be represented by any

union? Reasons. (3%)

c. If you were the duly designated election officer in this case, what would you doto effectively achieve the purpose of certification election proceedings? Discuss.(3%)

Sec. 20, Rule 9, Book V provides that where the votes cast results in "no union"obtaining the majority, the med arbiter shall declare such fact in the order.

XVIThe Company and Triple-X Union, the certified bargaining agent of rank-and-fileemployees, entered into a Collective Bargaining Agreement (CBA) effective for theperiod January 1, 2002 to December 31, 2007. For the 4th and 5th years of the CBA,

the significant improvements in wages and other benefits obtained by the Unionwere:1) Salary increases of P1,000 and P1,200 monthly, effective January 1, 2006 and

January 1, 2007, respectively;2) Vacation Leave and Sick Leave were adjusted from 12 days to 15 daysannually for each employee;3) Medical subsidy of P3,000 per year for the purchase of medicines andhospitalization assistance of P10,000 per year for actual hospital confinement;4) Rice Subsidy of P600 per month, provided the employee has worked for atleast 20 days within the particular month; and5) Birthday Leave with Pay and Birthday Gift of P1,500.

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As early as October 2007, the Company and the Union started negotiations to renewthe CBA. Despite mutual good faith and earnest efforts, they could not agree.However, no union filed a petition for certification election during the freedom period.On March 30, 2008, no CBA had been concluded. Management learned that the Unionwould declare a bargaining deadlock on the next scheduled bargaining meeting.

As expected, on April 3, 2008, the Union declared a deadlock. In the afternoon of thesame day, management issued a formal announcement in writing, posted on thebulletin board, that due to the CBA expiration on December 31, 2007, all fringebenefits contained therein are considered withdrawn and can no longer beimplemented, effective immediately.

a. When was the "freedom period" referred to in the foregoing narration of facts?Explain. (2%)

b. After April 3, 2008, will a petition for certification election filed by anotherlegitimate labor union representing the rank-and-file employees legallyprosper? Reasons. (3%)

c. Is managements withdrawal of the fringe benefits valid?Reasons. (2%)

d. If you were the lawyer for the union, what legal recourse or action would youadvise? Reasons. (3%)

XVIIAlfredo was dismissed by management for serious misconduct. He filed suit for illegaldismissal, alleging that although there may be just cause, he was not afforded dueprocess by management prior to his termination. He demands reinstatement with fullbackwages.a. What are the twin requirements of due process which the employer must observe

in terminating or dismissing an employee? Explain. (3%)The twin requirements of two notices and hearing constitute the essential elements of

the procedural due process and neither of these elements can be eliminated without runningafoul of the procedural mandate.

The first written notice to be served on the employees should contain the specificcauses or grounds for termination against them and a directive that the employees are giventhe opportunity to submit their written explanation within a reasonable period. A hearinggives the employees the opportunity to explain and clarify their defenses to the chargesagainst them, present evident in support of their defenses, and rebut the evidence presentedagainst them by the management. The second written notice shall be served to employeesafter finding on the validity of the termination, indicating that all circumstances involving thecharge against the employees have been considered and grounds have been established to

justify the severance of their employment.

b. Is Alfredo entitled to reinstatement and full backwages? Why or why not? (3%)

NO. Applying the Agabon doctrine, a dismissal on the ground of serious misconduct ajust cause, is not illegal or ineffectual, even if done without due process, but the employershould indemnify the employee with nominal damages for non-compliance with statutory dueprocess.

XVIIIa. Cite four (4) instances when an illegally dismissed employee may be awarded

separation pay in lieu of reinstatement. (3%)1. Reinstatement not possible due to old age2. Reinstatement no longer possible because of death of the employee3. Reinstatement rendered moot and academic by supervening events like closure of

the business of the employer

4. Reinstatement not possible under the doctrine of strained relations5. When termination is due to disease

b. Explain the impact of the union security clause to the employees right to securityof tenure. (2%)

It is a just cause for termination of an employee. The contracting union may demandfrom the employer the dismissal of an employee who commits a breach of union securityarrangement or commits an act of disloyalty to the union.

2010PART I

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ITRUE OR FALSE. Explain your answer briefly.1. Deeds of release, waivers and quitclaims are always valid and binding. (2%)

FALSE. It becomes invalid (1) where there is clear proof that the waiver was wangled from anunsuspecting or gullible person; or (2) where the terms of settlement are unconscionable ontheir face; in these cases, the law will step in to annul the questionable transaction.

IIa. Distinguish the terms conciliation, mediation and arbitration. (3%)

Mediation means a voluntary process in which a mediator, selected by the disputingparties, facilitates communication and negotiation, and assists the parties in reaching avoluntary agreement regarding a dispute.

Arbitration means a voluntary dispute resolution process in which one or morearbitrators, appointed in accordance with the agreement of the parties, or rules promulgatedpursuant to this Act, resolve a dispute by rendering an award.

b. Differentiate surface bargaining from blue-sky bargaining. (2%)Surface bargaining on the part of the management is defined as "going through the

motions of negotiating" without any legal intent to reach an agreement. It involves a questionof whether an employers conduct demonstrates an unwillingness to bargain in good faith oris merely hard bargaining.

Blue-sky bargaining on the part of the union means making exaggerated orunreasonable proposals.

VCompany XYZ has two recognized labor unions, one for its rank-and-file employees(RFLU), and one for supervisory employees (SELU). Of late, the company instituted arestructuring program by virtue of which A, a rank-and-file employee and officer ofRFLU, was promoted to a supervisory position along with four (4) other colleagues,also active union members and/or officers. Labor Union KMJ, a rival labor unionseeking recognition as the rank-and-file bargaining agent, filed a petition for thecancellation of the registration of RFLU on the ground that A and her colleagues haveremained to be members of RFLU. Is the petition meritorious? Explain. (3%)

VIA is a member of the labor union duly recognized as the sole bargainingrepresentative of his company. Due to a bargaining deadlock, 245 members of the500-strong union voted on March 13, 2010 to stage a strike. A notice of strike wassubmitted to the National Conciliation and Mediation Board on March 16, 2010. Sevendays later or on March 23, 2010, the workers staged a strike in the course of which Ahad to leave and go to the hospital where his wife had just delivered a baby. Theunion members later intimidated and barred other employees from entering the workpremises, thus paralyzing the business operations of the company.

A was dismissed from employment as a consequence of the strike.a. Was the strike legal? Explain. (3%)b. Was As dismissal valid? Why or why not? (3%)

VIIA was an able seaman contracted by ABC Recruitment Agency for its foreign principal,Seaworthy Shipping Company (SSC). His employment contract provided that he wouldserve on board the Almieda II for eight (8) months with a monthly salary of US$450. Inconnection with his employment, he signed an undertaking to observe the drug andalcohol policy which bans possession or use of all alcoholic beverages, prohibitedsubstances and un-prescribed drugs on board the ship. The undertaking providedthat: (1) disciplinary action including dismissal would be taken against anyone in

possession of the prohibited substances or who is impaired by the use of any of thesesubstances, and (2) to enforce the policy, random test sampling would be done on allthose on board the ship.

On his third month of service while the Almieda II was docked at a foreign port, arandom drug test was conducted on all members of the crew and A tested positive formarijuana. He was given a copy of the drug test result. In compliance with thecompanys directive, he submitted his written explanation which the company did notfind satisfactory. A month later, he was repatriated to the Philippines.

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Upon arrival in the Philippines, A filed with the National Labor Relations Commission(NLRC) a complaint against the agency and the principal for illegal dismissal with aclaim for salaries for the unexpired portion of his contract.

a. Was As dismissal valid? Explain. (3%)YES. Settled is the rule that mandatory drug-testing of employees under the

Comprehensive Drug Act is constitutional. When contained in companys work policies, rulesand regulations for purposes of reducing the risk in the workplace, non-compliance of such istantamount to willful disobedience or insubordination which is a just cause for validtermination. Being a fixed-term employee, a notice to him by the employer of saidtermination is sufficient. No more hearing is required.

b. Is his claim for salaries for the unexpired portion of his contract tenable? Explain.(3%)

NO. Under the Migrant Workers and Overseas Filipino Act, in cases of termination ofoverseas employment without just, valid, or authorized cause as defined by law or contract,the worker shall be entitled among others, to his salaries for the unexpired portion of hisemployment contract or for three months for every year of the unexpired term whichever isless. Having been validly dismissed, A is not entitled thereof.

VIIIABC Company and U labor union have been negotiating for a new CollectiveBargaining Agreement (CBA) but failed to agree on certain economic provisions of theexisting agreement. In the meantime, the existing CBA expired. The companythereafter refused to pay the employees their midyear bonus, saying that the CBAwhich provided for the grant of midyear bonus to all company employees had alreadyexpired. Are the employees entitled to be paid their midyear bonus? Explain youranswer. (3%)

Yes. Under the LC, it shall be the duty of both parties to keep the status quo and tocontinue in full force and effect the terms and conditions of the existing agreement during the60-day period and/or until a new agreement is reached by the parties. In as much as the partieshas not yet agreed with certain economic provisions of the new CBA, the condition of providingfor the grant of midyear bonus to employees under the existing CBA shall be respected.

IXA was working as a medical representative of RX pharmaceutical company when hemet and fell in love with B, a marketing strategist for Delta Drug Company, acompetitor of RX. On several occasions, the management of RX called As attention tothe stipulation in his employment contract that requires him to disclose anyrelationship by consanguinity or affinity with co-employees or employees ofcompeting companies in light of a possible conflict of interest. A seeks your advice onthe validity of the company policy. What would be your advice? (3%)

RXs policy prohibiting an employee from having a relationship with an employee of acompetitor company is a valid exercise of management prerogative. In several cased decided bythe SC, it is ruled that the prohibition against personal or marital relationships with employees ofcompetitor companies upon an employers employees is reasonable under the circumstancesbecause relationships of that nature might compromise the interests of the company. In layingdown the assailed company policy, the employer only aims to protect its interests against thepossibility that a competitor company will gain access to its secrets and procedures. (DuncanAssociation of Detailman v. Glaxo Wellcome Philippines, GR No. 162994, September 17, 2004)

XA, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has beenasked to join the XYZ Cooperative Employees Association. He seeks your advice on

whether he can join the association. What advice will you give him? (3%)A cannot join. In a long line of cases decided, the Supreme Court held that the right tocollective bargaining is not available to an employee of a cooperative who at the same time is amember and co-owner thereof. With respect, however, to employees who are neither membersnor co-owners of the cooperative they are entitled to exercise the rights to self-organization,collective bargaining and negotiation as mandated by the 1987 Constitution and applicablestatutes. The fact that as members of the cooperative they are co-owners thereof, as such, theycannot invoke the right to collective bargaining for "certainly an owner cannot bargain withhimself or his co-owners." (Benguent Electric Cooperative Inc. v. Ferrer-Calleja, GR No. 79025,December 29, 1989)

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XIBecause of continuing financial constraints, XYZ, Inc. gave its employees the option tovoluntarily resign from the company. A was one of those who availed of the option.On October 5, 2007, he was paid separation benefits equivalent to seven (7) monthspay for his six (6) years and seven (7) months of service with the company and heexecuted a waiver and quitclaim.

A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While headmitted that he was not forced to sign the quitclaim, he contended that he agreed totender his voluntary resignation on the belief that XYZ, Inc. was closing down itsbusiness. XYZ, Inc., however, continued its business under a different company name,he claimed.Rule on whether the quitclaim executed by A is valid or not. Explain. (3%)

It is not valid. Generally, a waiver or quitclaim is a valid and binding agreement betweenthe parties, provided that it constitutes a credible and reasonable settlement, and that the oneaccomplishing it has done so voluntarily and with a full understanding of its import. It becomesinvalid (1) where there is clear proof that the waiver was wangled from an unsuspecting orgullible person; or (2) where the terms of settlement are unconscionable on their face; in thesecases, the law will step in to annul the questionable transaction.

In the case at bar, although A voluntarily signed the quitclaim, he do so on the belief thatXYZ will close or cease its operations. He was tricked into accepting and signing it.

XIIOn December 12, 2008, A signed a contract to be part of the crew of ABC Cruises, Inc.through its Philippine manning agency XYZ. Under the standard employment contractof the Philippine Overseas Employment Administration (POEA), his employment wasto commence upon his actual departure from the port in the point of hire, Manila,from where he would take a flight to the USA to join the cruise ship MS Carnegie.However, more than three months after A secured his exit clearance from the POEAfor his supposed departure on January 15, 2009, XYZ still had not deployed him for novalid reason. Is A entitled to relief? Explain. (3%)

YES. The employment contract did not commence when A was not able to depart for USA;thus, no employer-employee relationship was created between the parties. Nevertheless, evenbefore the start of any employer-employee relationship, contemporaneous with the perfection ofthe employment contract was the birth of certain rights and obligations, the breach of which maygive rise to a cause of action against the erring party.

ABC Cruises Inc. unilaterally and unreasonably reneged on its obligation to deploypetitioner and must therefore answer for the actual damages A suffered. A is also entitled toattorneys fees in the concept of damages and expenses of litigation. Attorney's fees arerecoverable when the defendant's act or omission has compelled the plaintiff to incur expensesto protect his interest. (Santiago v. CF Sharp Crew Management, GR 162419, July 10, 2007)

XIIIA is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is therecognized exclusive bargaining agent. Although A is a member of rival union XYR-MU, he receives the benefits under the CBA that XYZ-EU had negotiated with thecompany.

XYZ-EU assessed A, a fee equivalent to the dues and other fees paid by its membersbut A insists that he has no obligation to pay said dues and fees because he is not amember of XYZEU and he has not issued an authorization to allow the collection.Explain whether his claim is meritorious. (3%)

As claim is not meritorious. In the IRR of the LC, it is provided that the dues and other fees

that may be assessed from non-union members within the bargaining unit who accept and availof the benefits flowing from the CBA are called agency fees. Payment of agency fee to thebargaining union/ agent which negotiated the CBA is but a reasonable requirement recognizedby law, to prevent non-union members from enriching themselves at the expense of unionmembers.

PART II

XV

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Samahang Manggagawa ng Terracota, a union of supervisory employees at TerracotaInc., recently admitted a member of the companys managerial staff, A, into the unionranks.

a. Should A be a member of the supervisory union? Explain. (2%)Managerial employees are not eligible to join, assist or form any labor organization.

Supervisory employees shall not be eligible for membership in a labor organization of therank-and-file employees but may join, assist or form separate labor organizations of theirown.

b. Assuming that A is ineligible to join the union, should the registration ofSamahang Manggagawa ng Terracota be cancelled? Explain. (3%)

NO because under the Labor Code, the inclusion as union members of employeesoutside the bargaining unit shall not be a ground for the cancellation of the registration of theunion. Said employees are automatically deemed removed from the list of membership ofsaid union.

XVIOn the first day of collective bargaining negotiations between rank-and-file Union Aand B Bus Company, the former proposed a P45/day increase. The company insistedthat ground rules for negotiations should first be established, to which the unionagreed. After agreeing on ground rules on the second day, the union representativesreiterated their proposal for a wage increase. When company representativessuggested a discussion of political provisions in the Collective Bargaining Agreementas stipulated in the ground rules, union members went on mass leave the next day toparticipate in a whole-day prayer rally in front of the company building.

a. The company filed a petition for assumption of jurisdiction with the Secretary ofLabor and Employment. The Union opposed the petition, arguing that it did notintend to stage a strike. Should the petition be granted? Explain. (2%)

b. The Union contended that assuming that the mass leave will be considered as astrike, the same was valid because of the refusal of the company to discuss theeconomic provisions of the CBA. Rule on the contention. (2%)

c. Union member AA, a pastor who headed the prayer rally, was served a notice oftermination by management after it filed the petition for assumption of

jurisdiction. May the company validly terminate AA? Explain. (2%)

XVIIA was hired to work in a sugar plantation performing such tasks as weeding, cuttingand loading canes, planting cane points, fertilizing and cleaning the drainage.Because his daily presence in the field was not required, A also worked as a houseboyat the house of the plantation owner. For the next planting season, the owner decidednot to hire A as a plantation worker but as a houseboy instead. Furious, A filed a casefor illegal dismissal against the plantation owner. Decide with reason. (3%)

According to a case decided by the Supreme Court, in order that a seasonal employeemay be deemed to have attained regularity of employment as such, the following requisitesmust concur:

6. The seasonal employee should perform work or services that are seasonal in nature;and

7. They must have also been employed for more than one season.

In this case, the facts do not show that A has been employed for more than one season.Absent one of the requisites, he is considered an ordinary seasonal employee. Where the work orservice to be performed by the employee is seasonal in nature and the employment is for theduration of the season, no prior notice of termination of the seasonal employment is required inorder to comply with the due process requirement. The employer may opt not to re-hire the

seasonal employee for the next season. Therefore, A is not illegally dismissed.

XVIIIFlight attendant A, five feet and six inches tall, weighing 170 pounds ended upweighing 220 pounds in two years. Pursuant to the long standing Cabin and CrewAdministration Manual of the employer airline that set a 147-pound limit for Asheight, management sent A a notice to shape up or ship out within 60 days. At theend of the 60-day period, A reduced her weight to 205 pounds. The company finallyserved her a Notice of Administration Charge for violation of company standards onweight requirements. Should A be dismissed? Explain. (3%)

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Same in 2008 X

XIXSeveral employees and members of Union A were terminated by Western Phone Co.on the ground of redundancy. After complying with the necessary requirements, theUnion staged a strike and picketed the premises of the company. The managementthen filed a petition for the Secretary of Labor and Employment to assume jurisdictionover the dispute. Without the benefit of a hearing, the Secretary issued an Order toassume jurisdiction and for the parties to revert to the status quo ante litem.

a. Was the order to assume jurisdiction legal? Explain. (2%)

b. Under the same set of facts the Secretary instead issued an Order directing allstriking workers to return to work within 24 hours, except those who wereterminated due to redundancy. Was the Order legal? Explain. (3%)

XXIVRank-and-file workers from Peacock Feathers, a company with 120 employees,registered their independent labor organization with the Department of Labor andEmployment (DOLE) Regional Office. Management countered with a petition to cancelthe unions registration on the ground that the minutes of ratification of the unionconstitution and by-laws submitted to the DOLE were fraudulent. Specifically,management presented affidavits of ten (10) out of forty (40) individuals named inthe list of union members who participated in the ratification, alleging that they werenot present at the supposed January 1, 2010 meeting held for the purpose. The unionargued that the stated date of the meeting should have read January 11, 2010,instead of January 1, 2010, and that, at any rate, the other thirty (30) unionmembers were enough to register a union. Decide with reason. (3%)

XXVCompany C, a toy manufacturer, decided to ban the use of cell phones in the factorypremises. In the pertinent Memorandum, management explained that too muchtexting and phone-calling by employees disrupted company operations. Twoemployees members of Union X were terminated from employment due to violation ofthe memorandum-policy. The union countered with a prohibitory injunction case (withprayer for the issuance of a temporary restraining order) filed with the Regional TrialCourt, challenging the validity and constitutionality of the cell phone ban. Thecompany filed a motion to dismiss, arguing that the case should be referred to thegrievance machinery pursuant to an existing Collective Bargaining Agreement withUnion X, and eventually to Voluntary Arbitration. Is the company correct? Explain.(3%)

2012

I.

a. A deadlock in the negotiations for the collective bargaining agreement betweenCollege X and the Union prompted the latter, after duly notifying the DOLE, todeclare a strike on November 5. The strike totally paralyzed the operations of theschool. The Labor Secretary immediately assumed jurisdiction over the dispute andissued on the same day (November 5) a return to work order. Upon receipt of theorder, the striking union officers and members, on November 1, filed a Motion forReconsideration thereof questioning the Labor Secretary's assumption of

jurisdiction, and continued with the strike during the pendency of their motion. OnNovember 30, the Labor Secretary denied the reconsideration of his return to workorder and further noting the strikers' failure to immediately return to work,terminated their employment. In assailing the Labor Secretary's decision, theUnion contends that:

1. The Labor Secretary erroneously assumed jurisdiction over the dispute sinceCollege X could not be considered an industry indispensable to nationalinterest;

The Supreme Court has already ruled that educational institutions are in anindustry indispensable to the national interest, considering the grave adverse effectsthat their closure entails on their students and teachers.

2. The strikers were under no obligation to immediately comply with theNovember 5 return to work order because of their then pending Motion forReconsideration of such order; and

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The striking workers must immediately comply with a Return to Work Ordereven pending their motion for reconsideration. Compliance is a duty imposed by law,and a Return to Work Order is immediately executory in character.

The nature of a Return to Work Order, was characterized by the Supreme Courtin Sarmiento v. Juico, 162 SCRA 676 (1988) as:

It is also important to emphasize that the return to work order not so muchconfers a right as it imposes a duty. It must be discharged as a duty even against theworkers' will. Returning to work in this situation is not a matter of options orvoluntariness but of obligation.

In Baguio Colleges Foundation v. NLRC, 222 SCRA 604 (1993) the Court ruled:Assumption and certification orders are executory in character and are to be

strictly complied with by the parties even during the pendency of any petitionquestioning their validity.

3. The strike being legal, the employment of the striking Union officers andmembers cannot be terminated. Rule on these contentions. Explain. (5%)

The continuing strike is illegal because it is in defiance of a return to work orderof the Secretary of Labor and Employment, hence, termination of employment of allthose who participated whether officer or member, is legal. In Sta. Scholastica'sCollege v. Torres. 210 SCRA 565 (1992), the Court ruled:

Any worker or union officer who knowingly participates in a strike defying areturn to work order may, consequently, be declared to have lost his employmentstatus in accordance with Art. 264 of the Labor Code.

II.In the Collective Bargaining Agreement (CBA) between Dana Films and its rank-and-file Union (which is directly affiliated with MMFF, a national federation), a provisionon the maintenance of membership expressly provides that the Union can demand thedismissal of any member employee who commits acts of disloyalty to the Union asprovided for in its Constitution and By-Laws. The same provision contains anundertaking by the Union (MMFF) to hold Dana Films free from any and all claims ofany employee dismissed. During the term of the CBA, MMFF discovered that certainemployee-members were initiating a move to disaffiliate from MMFF and join a rivalfederation, FAMAS. Forthwith, MMFF sought the dismissal of its employee-membersinitiating the disaffiliation movement from MMFF to FAMAS. Dana Films, relying onthe provision of the aforementioned CBA, complied with MMFF's request anddismissed the employees identified by MMFF as disloyal to it.

a. Will an action for illegal dismissal against Dana Films and MMFF prosper or not?Why? (5%)

The action for illegal dismissal will prosper. The right of a local union to disaffiliate fromits mother federation is well-settled. A local union, being a separate and voluntaryassociation, is free to serve the interest of all its members including the freedom to

disaffiliate when circumstances warrant this right and when it is consistent with theconstitutional guarantee of freedom of association. Disaffiliation cannot be considered an actof disloyalty. Thus, the Act of initiating move to disaffiliate is not an act of disloyalty. (TropicalHut Employee's Union-CGW, et al. vs. Tropical Hut Food Market, Inc., et al, G.R. Nos. L-3495-99, January 20. 1990)

b. What are the liabilities of Dana Films and MMFF to the dismissed employees, i fany? (5%)

MFF can be held liable to pay the back wages of the dismissed employees. Royal canbe held jointly and severally liable for back wages if it acted with undue haste in dismissingthe employees (Manila Cordage Co. v. CIR, 78 SCRA 398). In addition, Royal can be ordered toreinstate the dismissed employees.

III.a. On August 01, 2008, Y, a corporation engaged in the manufacture of textile

garments, entered into a collective bargaining agreement with Union X inrepresentation of the rank and-file employees of the corporation. The CBA waseffective up to June 20, 2011. The contract had an automatic renewal clause whichwould allow the agreement after its expiry date to still apply until both partieswould have been able to execute a new agreement. On May 10, 2011, Union Xsubmitted to Y's management their proposals for the negotiation of a new CBA.The next day, Y suspended negotiations with Union X since Y had entered into amerger with Z, a corporation also engaged in the manufacture of textile garments.

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Z assumed all the assets and liabilities of Y. Union X filed a complaint with theRegional Trial Court for specific performance and damages with a prayer forpreliminary injunction against Y and Z and Z filed a Motion to Dismiss based onlack of jurisdiction. Rule on the Motion to Dismiss. (5%)

I will grant the Motion to Dismiss. The act of Y suspending negotiations with Union Xcould be an unfair labor practice. It could be a violation of the duty to bargain collectively. Assuch, the case is under the jurisdiction of a Labor Arbiter and not of a regular Court.

b. X was one of more than one hundred (100) employees who were terminated fromemployment due to the closure of Construction Corporation A. The Cruz familyowned Construction Company A. Upon the closure of Construction Company A, theCruzes established Construction Company B. Both