2007 I a. What is the principle of codetermination?

The principle of co-determination refers to the right of workers to participate in policy and decision-making processes directly affecting their rights and benefits, without intruding into 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 their rights and benefits as may be provided by law. IV a. The Globe Doctrine. The Globe Doctrine refers to the method of determining the will or desire of the employee which is an important factor in determining the appropriate bargaining unit. The best way to 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 appropriate bargaining unit must have commonality of collective bargaining interests as well as substantial mutual interests in terms of employment and working conditions as evidenced by the type of work they perform. (San Miguel Corporation v. Laguesma, G.R. No. 100485, September 21, 1984) V May non-lawyers appear before the NLRC or Labor Arbiter? May they charge attorney's fee for such appearance provided it is charged against union funds and in an 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; or 2. 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 collective bargaining 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 be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. VI Procedurally, how do you stay a decision, award or order of the Labor Arbiter? Discuss fully. a. The perfection of appeal shall stay the execution of the decision of a Labor Arbiter on appeal except partial execution for reinstatement pending appeal. b. By filing for injunction within ten (10) calendar days from the receipt of the decision on the grounds of grave abuse, intrinsic fraud, on pure questions of law and/or serious, erroneous factual findings causing grave or irreparable damage, and such other grounds under Article 223 of the Labor Code, as amended. VII a. 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 jurisdiction over issues involved in any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office 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, or coercion. (Article 227 of the Labor Code) b. How sacrosanct are statements/data made at conciliation proceedings in the Department of Labor and Employment? What is the philosophy behind your answer?

Under Article 223, statements made at conciliation proceedings are privileged communications that can neither be used as evidence nor can conciliators testify on any matters taken up in the proceedings. The philosophy is to ascertain the truth about the controversy which the parties may be afraid to divulge if the revelations can be utilized against them later on. VIII Discuss in full the jurisdiction over the civil and criminal aspects of a case involving an unfair labor practice for which a charge is pending with the Department of Labor and Employment. Unfair labor practices are not only violations of the civil rights of both labor and management but are also criminal offenses against the State which shall be subject to prosecution and punishment as provided under the Labor Code. Generally, the civil aspects of all cases involving unfair labor practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. No criminal prosecution involving ULP may be instituted without a final judgment finding that an unfair labor practice was committed, having been first obtained in the administrative proceedings. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. (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 Labor Arbiter from taking cognizance of the unfair labor practice case. After the finality of judgment finding ULP, the criminal aspect can be instituted before the prosecutor. IX Discuss 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 bargaining deadlock 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 the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the result thereof 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 or of 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 the intended strike or lockout In the event the result of the strike/lockout ballot is filed within the cooling-off period, the 7-day requirement shall be counted from the day following the expiration of the cooling-off period. (NSFW vs. Ovejera, G.R. No. 59743, May 31, 1982) In case of dismissal from employment of union officers which may constitute union busting, the time requirement for the filing of the Notice of Strike shall be dispensed with but the strike vote requirement being mandatory in character, shall in every case be complied with. The dispute must not be the subject of an assumption of jurisdiction by the President or the Secretary of Labor and Employment, a certification for compulsory or voluntary

arbitration nor a subject of a pending case involving the same grounds for the strike or lockout. X Discuss briefly the instances when non-compliance by the employer with a reinstatement order of an illegally dismissed employee is allowed. (1) when reasons exist which are not attributable to the fault or beyond the control of the employer, such as, when the employer, who is in severe financial strait and has suffered serious business losses, has ceased operations, implemented retrenchment, or abolished the position due to the installation of labor-saving devices; (2) when the illegally dismissed employee has contracted a disease and his reinstatement will endanger 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) XI a. As a rule, when is retirement due? Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. (Article 287 of the Labor Code) In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire xxx. 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 as such. (R.A. 8558) XII a. 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 of any interested party, issue a writ of execution on a judgment within five (5) years from the date it becomes final and executory, requiring a sheriff or a duly deputized officer to execute or 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 is prima facie evidence of abuse of discretion on the part of the Labor Arbiter; (b) If the decision, order or award was secured through fraud or coercion, including graft and corruption; (c) If made purely on questions of law; and (d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. (Article 223 of Labor Code) XIII May a decision of the Labor Arbiter which has become final and executory be novated through a compromise agreement of the parties? Rights may be waived through a compromise agreement, notwithstanding a final judgment that has already settled the rights of the contracting parties. To be binding, the compromise must be shown to have been voluntarily, freely and intelligently executed by the parties, 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 principal condition of an obligation, substituting the person of the debtor, or surrogating a third person in the exercise of the rights of the creditor. For an obligation to be extinguished by another, the law requires either of these two conditions: (1) the substitution is unequivocally declared, or (2) the old and the new obligations are 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

incompatibility of the final judgment with the compromise agreement is evident, because the latter was precisely entered into to supersede the former. (Magbanua v. Uy, GR No. 161003) XIV Some officers and rank-and-file members of the union staged an illegal strike. Their employer wants all the strikers dismissed. As the lawyer, what will you advise the employer? Discuss fully. The mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment. For a worker or union member to be dismissed, he must have knowingly participates in the commission of illegal acts during a strike. However, any union officer who knowingly participates in an illegal strike may be declared to have lost his employment status. (Article 264 of the Labor Code) XVI A carpenter is employed by a private university in Manila. Is the carpenter a regular or a casual employee? Discuss fully. The carpenter is a casual employee. The carpenters work is not usually necessary and desirable in the usual trade or business of the employer university. However, if the carpenter has rendered services for at least one year, whether continuous or broken, he becomes a regular employee by operation of law, with respect to the activity for which he is employed. His employment shall continue while such activity exists. XVII P.D. 1508 requires the submission of disputes before the Barangay Lupong Tagapamayapa 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 barangay Lupong Tagapayapa prior to their filing with the court or other government offices are not applicable to labor cases. Requiring conciliation of labor disputes before the barangay courts would defeat the very salutary purposes of the law. Instead of simplifying labor proceedings designed at expeditious settlement or referral to the proper court or office to decide it finally, the position taken by the petitioner would only duplicate the conciliation proceedings and unduly delay the disposition of the labor case. (Montoya v. Escayo, GR Nos. 82211-12) XIX Cite five grounds for disciplinary action by the Philippine Overseas Employment Administration (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 the Philippines; 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 I a. Explain the automatic renewal clause of collective bargaining agreements. (3%) The "AUTOMATIC RENEWAL CLAUSE" in a CBA refers to that provision of the Labor Code (Article 253) which states that "It shall be the duty of both parties (to a CBA) to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60- day (freedom) period and/or until a new agreement is reached by the parties."

In the absence of a binding automatic renewal clause, a CBA ends on its termination date. 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 of employment remain the same during collective bargaining after a CBA has expired. This does not mean that the expired CBA continues in effect; rather, it means that the conditions under which the workers worked endure throughout the collective bargaining process. Collective bargaining agreement is a contract executed upon request of either the employer or the exclusive bargaining representative of the employees incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions under such agreement. b. Explain the extent of the workers right to participate in policy and decision-making process 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 that the intention by the framers of the Constitution was to provide for consultation with workers with direct reference to negotiation on the terms and conditions of employment to be included in a collective bargaining agreement, as well as workers participation in the interpretation and implementation of CBA, particularly with reference to the procedure of settling disputes concerning the CBA, through the grievance machinery and other voluntary modes of settling disputes, such as conciliation, mediation, and arbitration. In short, the Commission 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 may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and 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 be elected by at least the majority of all employees in said establishment. (Article 255) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. (Article 211 (7)) II a. 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 the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. (Article 262) b. Can a dispute falling within the exclusive jurisdiction of the Labor Arbiter be submitted to voluntary arbitration? Why or why not? (3%) YES. The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. (Article 262) Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert all efforts towards the amicable settlement of a labor dispute within his jurisdiction on or before the first hearing. The same rule shall apply to the Commission in the exercise of its original jurisdiction. (Article 221) In cases of strikes and lockouts, before or at any stage of the compulsory arbitration process, 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 submitted to compulsory arbitration? Why or why not? (3%) YES but only in cases of violations of the CBA which are gross in character. Gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement.

III Savoy Department Store (SDS) adopted a policy of hiring salesladies on five-month cycles. At the end of a saleslady's five-month term, another person is hired as replacement. Salesladies attend to store customers, wear SDS uniforms, report at specified hours, and are subject to SDS workplace rules and regulations. Those who refuse the 5-month employment contract are not hired. The day after expiration of her 5-month engagement, Lina wore her SDS white and blue 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 the gates of SDS. Soon thereafter, other employees whose 5-month term had also elapsed, joined Lina's hunger strike. a. Lina and 20 other saleladies filed a complaint for illegal dismissal, conteding that they are SDS regular employees as they performed activities usually necessary or desirable in the usual business or trade of SDS and thus, their constitutional right to security of tenure was violated when they were dismissed without valid, just or authorized cause. SDS, in defense, argued that Lina, et al. Agreed - prior to engagement - to a fixed period employment and thus waived their 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 necessary or 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 casual employees from attaining the status of a regular employee. It was a clear circumvention of 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.., an eyesore and disruptive of SDS business. He wrote the Secretary of Labor a letter asking 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 the NLRC for compulsory arbitration, if, in his opinion, it may cause or likely to cause a strike or lockout in an industry indispensable to the national interest. c. Assume that no fixed-term worker complained, yet in a routine inspection a labor inspector of the Regional Office of the Labor Code's security of tenure provisions and recommended to the Regional Director the issuance of a compliance order. The Regional Director adopted the recommendation and issued a compliance order. Is the compliance order valid? Explain your answer. (3%) The Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. V Super Comfort Hotel employed a regular pool of "extra waiters" who are called or asked to report for duty when the Hotel's volume of business is beyond the capacity of the regularly employed waiters to undertake. Pedro has been an "extra waiter" for more than 10 years. He is also called upon to work on weekends, on holidays and when there are big affairs at the hotel. What is Pedro's status as an employee under the Labor Code? Why? Explain your answer 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 of the 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. The primary standard to determine a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. If the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and

continuing need for its performance as sufficient evidence of the necessity, if not indispensability of that activity to the business of the employer. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists. The law does not provide the qualification that the employee must first be issued a regular appointment or must be declared as such before he can acquire a regular employee status. VI On the day that the Union could validly declare a strike, the Secretary of Labor issued an order assuming jurisdiction over the dispute and enjoining the strike, or if one has commenced, ordering the striking workers to immediately return to work. The returnto-work order required the employees to return to work within twenty-four hours and was served at 8 a.m. of the day the strike was to start. The order at the same time directed the Company to accept all employees under the same terms and conditions of employment prior to the work stoppage. The Union members did not return to work on 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 labor practices. Because of the accompanying picket, some of the employees who wanted to 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 that binds them as well as the Company. The Company, however, refused to admit them back since they had violated the Secretary's return-to-work order and are now considered to have lost their employment status. The Union officers and members filed a complaint for illegal dismissal arguing that there was no strike but a protest rally which is a valid exercise of the workers constitutional right to peaceable assembly and freedom of expression. Hence, there was no basis for the termination of their employment. You are the Labor Arbiter to whom the case was raffled. Decide, ruling on the following issues: a. Was there a strike? (4%) YES. A strike means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. A labor dispute, in turn, includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of the employer and the employee. [t]he fact that the conventional term strike was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation and not its appearance, will be deemed controlling. The term strike has been elucidated to encompass not only concerted work stoppages, but also slowdowns, mass leaves, sit-downs, attempts to damage, destroy, or sabotage plant equipment and facilities, and similar activities. b. Were the employees simply exercising their constitutional right to petition for redness of their grievances? Applying pertinent legal provisions and jurisprudence, the protest actions undertaken by the Union members are not valid and proper exercises of their right to assemble and ask government for redress of their complaints, but are illegal strikes in breach of the Labor Code. The Unions position is weakened by the lack of permit to hold rallies. Shrouded as demonstrations, they were in reality temporary stoppages of work perpetrated through the concerted action of the employees who deliberately failed to report for work on the convenient 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 a legal 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 Employment of 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 and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal strike. Stated differently, from the moment a worker defies a return-to-work order, he is deemed to have abandoned his job. The loss of employment results from the striking employees own act - an act which is illegal, an act in

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 so because of the picket, may show proof in their favor. -XPepe Santos was an international flight steward of Flysafe Airlines. Under FSA's Cabin Crew 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; he weighed 200 lbs., 30 pounds over the prescribed maximum weight. The Airline gave him a one-year period to attain the prescribed weight, and enrolled him in several weight reduction programs. He consistently failed to meet his target. He was given a 6-month grace period, after which he still failed to meet the weight limit. FSC thus sent him a Notice of Administrative Charge for violation of company standards on weight requirements. He stated in his answer that, for medical reasons, he cannot have a rapid weight loss. A clarificatory hearing was held where Santos fully explained his predicament. The explanation did not satisfy FSA and so it decided to terminate Santos's service for violation of company standards. Santos filed a complaint for illegal dismissal, arguing that the company's weight requirement policy is unreasonable and that his case is not a disciplinary but a medical issue (as one gets older, the natural tendency is to grow heavier). FSA defended its policy as a valid exercise of management prerogative and from the point of view of passenger safety and extraordinary diligence required by law of common carriers; it also posited that Santos failure to achieve his ideal weight constituted gross and habitual neglect of duty, as well as willful disobedience to lawful employer orders. The Labor Arbiter found the dismissal illegal for there was neither gross and habitual 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 were the prescribed weights that a cabin crew must maintain in order to qualify for and keep his or her position in the company . In other words, they were standards that establish continuing qualifications for an employees position. In this sense, the failure to maintain these standards does not fall under Article 282(a) whose express terms require the element of willfulness in order to be a ground for dismissal. The failure to meet the employers qualifying standards is in fact a ground that does not squarely fall under grounds (a) to (d) and is therefore one that falls under Article 282(e) the other causes analogous to the foregoing. By its nature, these qualifying standards are norms that apply prior to and after an employee is hired. They apply prior to employment because these are the standards a job applicant must initially meet in order to be hired. They apply after hiring because an employee must continue to meet these standards while on the job in order to keep his job. Under this perspective, a violation is not one of the faults for which an employee can be dismissed pursuant to pars. (a) to (d) of Article 282; the employee can be dismissed simply because he no longer qualifies for his job irrespective of whether or not the failure to qualify was willful or intentional. - XI Complaints had worked five (5) years as waitresses in a cocktail lounge owned by the respondent. They did not receive any salary directly from the respondent but shared in 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 the establishment and appropriate for themselves the tips given by guests. After five (5) years, the complaints individual shares in the collected service charges dipped to below minimum wage level as a consequence of the lounge's marked business decline. Thereupon, complaints asked respondent to increase their share in the collected service charges to 85% or the minimum wage level, whichever is higher. Respondent terminated the services of the complainants who countered by filing a consolidated complaint for unlawful dismissal, with prayer for 85% of the collected services or the minimum wage for the appropriate periods, whichever is higher. Decide. (6%)

In accordance with the provision of Article 138 of the Labor Code and its implementing rules, women working in night clubs, cocktail lounge, and similar establishments are considered regular employees thereof considering that they are made to perform activities that are usually necessary or desirable in the usual business or trade of their employer. Thus, they are entitled to security of tenure. They cannot be terminated unless for just or authorized causes. - XII Arnaldo, President of "Bisig" Union in Femwear Company, readied himself to leave exactly at 5:00 p.m. which was the end of his normal shift to be able to send off his wife who was scheduled to leave for overseas. However, the General Manager required him to render overtime work to meet the company's export quota. Arnaldo begged off, explaining to the General Manager that he had to send off his wife who was leaving to work abroad. The company dismissed Arnaldo for insubordination. He filed a case for illegal dismissal. Decide (6%) NO. For insubordination or willful disobedience to be a just cause for termination of employees, the following requisites must concur: (1) the employees assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge Requisite number 1 is not complied with. In one case, willfulness was described as characterized by a wrongful and perverse mental attitude rendering the employees act inconsistent with proper subordination. The fact that Arnaldo refused to render OT services to send off his wife, and the same order to render OT having been made after his time out, the same 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 Labor Code, an employee may be required by the employer to perform overtime work in any instances provided under the same Code. The order of the GM for Arnaldo to render OT services to meet the companys expert quota is not among those instances. Therefore, requisite number 2 is absent. - XIII The rank-and-file union staged a strike in the company premises which caused the disruption of business operations. The supervisors union of the same company filed a money claim for unpaid salaries for the duration of the strike, arguing that the supervisors' failure to report for work was not attributable to them. The company contended that it was equally faultless, for the strike was not the direct consequence of any lockout or unfair labor practice. May the company be held liable for the salaries of the supervisor? Decide (6%) The age-old rule governing the relation between labor and capital or management and employee is that of a 'fair day's wage for a fair day's labor.' If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. It is hardly fair or just for an employee 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 due to circumstances not attributable to themselves. But neither should the burden of the economic loss suffered by them be shifted to their employer, which was equally faultless, considering that the 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 the company premises, sent a letter to respondent company reminding it of its obligation to 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 they had dissolved it. "Puwersa" argued that since it won in a certification election, it can validly perform its function as a bargaining agent and represent the rank-and-file employees despite the union's dissolution. Is the argument of "Puwersa" tenable? Decide with reasons. (6%) 2009

PART I I 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, or from being connected with any other company, for as long as the business or company did not compete with the principals business. Further, the prohibition applied only for one year after the termination of the contract and was therefore a reasonable restriction designed to prevent acts prejudicial to the employer. Conformably then with the aforementioned pronouncements, a non-involvement clause is not necessarily void for being in restraint of trade as long as there are reasonable limitations as to time, trade, and place. Article 1306 of the Civil Code provides that parties to a contract may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not 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 the force 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 and respondent freely agreed upon, has the force of law between them, and thus, should be complied with in good faith. b. All confidential employees are disqualified to unionize for the purpose of collective bargaining. 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 who formulate, determine, and effectuate management policies specifically, in the field of labor relations. Otherwise, if these two conditions do not concur, they can join a union. c. A runaway shop is an act constituting unfair labor FALSEA runaway shop is an industrial plant moved another to escape union labor regulations or states motivated by anti-union animus rather than for business practice. by its owners from one location to laws. It may also be a relocation reasons.

d. In the law on labor relations, the substitutionary doctrine prohibits a new collective bargaining agent from repudiating an existing collective bargaining agreement. The "substitutionary" doctrine only provides that the employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. And it is in the light of this that the phrase "said new agent would 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, except of course to negotiate with management for the shortening thereof. II Clarito, 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 of the Labor Code, ruled in favor of Clarito upon finding Juans testimony doubtful. On appeal, the NLRC reversed the Labor Arbiter holding that Article 4 applies only when the doubt involves "implementation and interpretation" of the Labor Code provisions. The NLRC explained that the doubt may not necessarily be resolved in favor of labor since this case involves the application of the Rules on Evidence, not the Labor Code. Is the NLRC correct? Reasons. (3%) III Richie, 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 forego Richies 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

complaint against SR and MRA for damages corresponding to his two years salary under 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%) and c. 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 that notwithstanding any provisions of law to the contrary, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. 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 the perfection of the employment contract was the birth of certain rights and obligations, the breach 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 of employment constitutes breach of contract for which SR and MRA are liable for actual damages to Richie for the loss of two-year salary as provided in the contract. IV Diosdado, a carpenter, was hired by Building Industries Corporation (BIC), and assigned to build a small house in Alabang. His contract of employment specifically referred to him as a "project employee," although it did not provide any particular date of completion of the project. Is the completion of the house a valid cause for the termination of Diosdados employment? 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 to security of tenure and the completion of the house is not one of those just and authorized causes to terminate him. Settled is the rule that the duration of the project employment as well as the particular work or service to be performed should be defined in an employment agreement and must be made clear to the employees at the time of hiring. Failure to do so would make them regular employees. V a. 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 his incarceration after he was mistaken as his neighbors killer. Eventually acquitted and released from jail, Baldo returned to his employer and demanded reinstatement and full backwages. Is Baldo entitled to reinstatement and backwages? Explain your answer. (3%) The cause of Baldos dismissal from his employment turned out be non-existent. His absence cannot be deemed an abandonment of work. Abandonment is a matter of intention and 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 the illegality of his dismissal. Having been dismissed illegally, Baldo is entitled to reinstatement. With regards payment of backwages, the Supreme Court ruled in many cases, that Baldo is not entitled to any salary during the period of his detention. His entitlement to full backwages commenced from the time his employer refused his reinstatement; hence, the reckoning point for the grant of backwages started therefrom.

b. Domingo, a bus conductor of San Juan Transportation Company, intentionally did not 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 employee and, therefore, cannot be dismissed from the service for breach of trust. Is Domingo correct? Reasons. (2%) NO. Loss of confidence should ideally apply only to cases involving employees occupying positions of trust and confidence or to those situations where the employee is routinely charged with the care and custody of the employer's money or property. To the second class belong cashiers, auditors, property custodians, etc., or those who, in the normal and routine exercise of their functions, regularly handle significant amounts of money or property. A bus conductor entrusted with the collection and custody of the money from fares of the passengers, belongs to this second class of confidential employees. His position was thus one of trust and confidence, loss of which was a just cause for his dismissal. VII Johnny is the duly elected President and principal union organizer of the Nagkakaisang Manggagawa ng Manila Restaurant (NMMR), a legitimate labor organization. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. On the same day Johnny received 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%) and The 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 so that 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 requirement under the Labor Code. (2%) The strike is illegal for having failed to comply with the mandatory procedural requirement. c. The Labor Arbiter found management guilty of unfair labor practice for the unlawful dismissal of Johnny. The decision became final. Thereafter, the NMMR filed a criminal case against the Manager of Manila Restaurant. Would the Labor Arbiters finding be sufficient to secure the Managers conviction? Why or why not? (2%) NO. Verily, the dismissal without just cause of an employee from his employment constitutes a violation of the Labor Code and its implementing rules and regulations. Such violation, 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 a crime as defined in the penal law, but which by statute carries with it a penalty similar to those imposed by law for the punishment of a crime. VIII Alexander, a security guard of Jaguar Security Agency (JSA), could not be given any assignment because no client would accept him. He had a face only a mother could love. After six (6) months of being on "floating" status, Alexander sued JSA for constructive dismissal. The Labor Arbiter upheld Alexanders claim of constructive dismissal and ordered JSA to immediately reinstate Alexander. JSA appealed the decision to the NLRC. Alexander sought immediate enforcement of the reinstatement order 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, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein.

b. Can the order of reinstatement be immediately enforced in the absence of a motion for the issuance of a writ of execution? (2%) Reinstatement pending appeal necessitates that it must be immediately selfexecutory without need for a writ of execution during the pendency of the appeal, if the law is to serve its noble purpose, and any attempt on the part of the employer to evade or delay its execution should not be allowed. c. If the order of reinstatement is being enforced, what should JSA do in order to prevent reinstatement? (2%) Ask for separation pay in lieu of reinstatement invoking the Doctrine of Strained RelationsUnder the law and prevailing jurisprudence, an illegally dismissed employee is entitled to reinstatement as a matter of right. However, if reinstatement would only exacerbate the tension and strained relations between the parties, or where the relationship between the employer and the employee has been unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed employee held a managerial or key position in the company , it would be more prudent to order payment of separation pay instead of reinstatement. Under the doctrine of strained relations , the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. On one hand, such payment liberates the employee from what could be a highly oppressive work environment. On the other hand, it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust. In such cases, it should be proved that the employee concerned occupies a position where he enjoys the trust and confidence of his employer; and that it is likely that if reinstated, an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee concerned IX a. 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; and d. 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 involving wage distortions shall not be a ground for strike/lockout." Article 124 of the Labor Code, as amended 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 of the issue. The legislative intent that wage distortion shall be solved by voluntary negotiation or 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 wage distortion? (2%) In organized establishments, the wage distortion shall be resolved through the GRIEVANCE PROCEDURE under their collective bargaining agreement, and if it remains unresolved, through VOLUNTARY ARBITRATION. On the other hand, in establishments where there are no collective bargaining agreements or recognized labor unions, the employers and workers shall endeavor to correct such distortion. Any dispute arising therefrom shall be settled through the 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 Labor Relations Commission for COMPULSORY ARBITRATION (Article 124, Labor Code of the Philippines). PART II XI 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 as regular employees under Article 280 of the Labor Code. Their employment is governed by the contracts they sign every time they are rehired and their employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time.

Although they have worked for 20 years, still there are certain forms of employment which also require the performance of usual and desirable functions and which exceed one year but do not necessarily attain regular employment status under Article 280. Overseas workers including seafarers fall under this type of employment which is governed by the mutual agreements of the parties. b. Government employees have the right to organize and join concerted mass actions without incurring administrative liability. FALSEConcerted activities and strikes by government employees are not allowed because the terms and employment of government employment are governed by law. They may, however, organize government employees organization and may negotiate certain terms and conditions of employment except those requiring appropriations or exercise of prerogatives. XV Among the 400 regular rank-and-file workers of MNO Company, a certification election was ordered conducted by the Med-Arbiter of the Region. The contending parties obtained the following votes: 1. Union A - 70 2. Union B - 71 3. Union C - 42 4. Union D - 33 5. No union - 180 6. Spoiled votes - 4 There were no objections or challenges raised by any party on the results of the election. a. Can Union B be certified as the sole and exclusive collective bargaining agent among the rank-and-file workers of MNO Company considering that it garnered the 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 the wishes of the majority of the employees in the appropriate bargaining unit: to be or not to be represented by a labor organization, and in the affirmative case, by which particular labor organization. If the results of the election should disclose that the majority of the workers 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 in the bargaining unit in dealing with the employer regarding wages, hours and other terms and conditions of employment. The minority employees who wish to have a union represent them in collective bargaining can do nothing but wait for another suitable occasion 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 absolute termination 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 do to 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. XVI The Company and Triple-X Union, the certified bargaining agent of rank-and-file employees, entered into a Collective Bargaining Agreement (CBA) effective for the period 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 Union were: 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 days annually for each employee; 3) Medical subsidy of P3,000 per year for the purchase of medicines and hospitalization assistance of P10,000 per year for actual hospital confinement; 4) Rice Subsidy of P600 per month, provided the employee has worked for at least 20 days within the particular month; and 5) Birthday Leave with Pay and Birthday Gift of P1,500.

As early as October 2007, the Company and the Union started negotiations to renew the 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 Union would 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 the same day, management issued a formal announcement in writing, posted on the bulletin board, that due to the CBA expiration on December 31, 2007, all fringe benefits contained therein are considered withdrawn and can no longer be implemented, 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 another legitimate labor union representing the rank-and-file employees legally prosper? 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 you advise? Reasons. (3%) XVII Alfredo was dismissed by management for serious misconduct. He filed suit for illegal dismissal, alleging that although there may be just cause, he was not afforded due process by management prior to his termination. He demands reinstatement with full backwages. 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 running afoul of the procedural mandate. The first written notice to be served on the employees should contain the specific causes or grounds for termination against them and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. A hearing gives the employees the opportunity to explain and clarify their defenses to the charges against them, present evident in support of their defenses, and rebut the evidence presented against them by the management. The second written notice shall be served to employees after finding on the validity of the termination, indicating that all circumstances involving the charge 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 a just cause, is not illegal or ineffectual, even if done without due process, but the employer should indemnify the employee with nominal damages for non-compliance with statutory due process. XVIII a. 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 age 2. Reinstatement no longer possible because of death of the employee 3. 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 relations 5. When termination is due to disease b. Explain the impact of the union security clause to the employees right to security of tenure. (2%) It is a just cause for termination of an employee. The contracting union may demand from the employer the dismissal of an employee who commits a breach of union security arrangement or commits an act of disloyalty to the union. 2010 PART I

I TRUE 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 an unsuspecting or gullible person; or (2) where the terms of settlement are unconscionable on their face; in these cases, the law will step in to annul the questionable transaction. II a. Distinguish the terms conciliation, mediation and arbitration. (3%) Mediation means a voluntary process in which a mediator, selected by the disputing parties, facilitates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute. Arbitration means a voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant 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 question of whether an employers conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining. Blue-sky bargaining on the part of the union means making exaggerated or unreasonable proposals. V Company 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 a restructuring program by virtue of which A, a rank-and-file employee and officer of RFLU, 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 union seeking recognition as the rank-and-file bargaining agent, filed a petition for the cancellation of the registration of RFLU on the ground that A and her colleagues have remained to be members of RFLU. Is the petition meritorious? Explain. (3%) VI A is a member of the labor union duly recognized as the sole bargaining representative of his company. Due to a bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage a strike. A notice of strike was submitted to the National Conciliation and Mediation Board on March 16, 2010. Seven days later or on March 23, 2010, the workers staged a strike in the course of which A had to leave and go to the hospital where his wife had just delivered a baby. The union members later intimidated and barred other employees from entering the work premises, 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%) VII A was an able seaman contracted by ABC Recruitment Agency for its foreign principal, Seaworthy Shipping Company (SSC). His employment contract provided that he would serve on board the Almieda II for eight (8) months with a monthly salary of US$450. In connection with his employment, he signed an undertaking to observe the drug and alcohol policy which bans possession or use of all alcoholic beverages, prohibited substances and un-prescribed drugs on board the ship. The undertaking provided that: (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 these substances, and (2) to enforce the policy, random test sampling would be done on all those on board the ship. On his third month of service while the Almieda II was docked at a foreign port, a random drug test was conducted on all members of the crew and A tested positive for marijuana. He was given a copy of the drug test result. In compliance with the companys directive, he submitted his written explanation which the company did not find satisfactory. A month later, he was repatriated to the Philippines.

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 a claim 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, rules and regulations for purposes of reducing the risk in the workplace, non-compliance of such is tantamount to willful disobedience or insubordination which is a just cause for valid termination. Being a fixed-term employee, a notice to him by the employer of said termination 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 of overseas 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 his employment contract or for three months for every year of the unexpired term whichever is less. Having been validly dismissed, A is not entitled thereof. VIII ABC Company and U labor union have been negotiating for a new Collective Bargaining Agreement (CBA) but failed to agree on certain economic provisions of the existing agreement. In the meantime, the existing CBA expired. The company thereafter refused to pay the employees their midyear bonus, saying that the CBA which provided for the grant of midyear bonus to all company employees had already expired. Are the employees entitled to be paid their midyear bonus? Explain your answer. (3%) Yes. Under the LC, it shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. In as much as the parties has not yet agreed with certain economic provisions of the new CBA, the condition of providing for the grant of midyear bonus to employees under the existing CBA shall be respected. IX A was working as a medical representative of RX pharmaceutical company when he met and fell in love with B, a marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the management of RX called As attention to the stipulation in his employment contract that requires him to disclose any relationship by consanguinity or affinity with co-employees or employees of competing companies in light of a possible conflict of interest. A seeks your advice on the validity of the company policy. What would be your advice? (3%) RXs policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid exercise of management prerogative. In several cased decided by the SC, it is ruled that the prohibition against personal or marital relationships with employees of competitor companies upon an employers employees is reasonable under the circumstances because relationships of that nature might compromise the interests of the company. In laying down the assailed company policy, the employer only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures. (Duncan Association of Detailman v. Glaxo Wellcome Philippines, GR No. 162994, September 17, 2004) X A, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has been asked 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 to collective bargaining is not available to an employee of a cooperative who at the same time is a member and co-owner thereof. With respect, however, to employees who are neither members nor 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 applicable statutes. The fact that as members of the cooperative they are co-owners thereof, as such, they cannot invoke the right to collective bargaining for "certainly an owner cannot bargain with himself or his co-owners." (Benguent Electric Cooperative Inc. v. Ferrer-Calleja, GR No. 79025, December 29, 1989)

XI Because of continuing financial constraints, XYZ, Inc. gave its employees the option to voluntarily 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) months pay for his six (6) years and seven (7) months of service with the company and he executed a waiver and quitclaim. A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While he admitted that he was not forced to sign the quitclaim, he contended that he agreed to tender his voluntary resignation on the belief that XYZ, Inc. was closing down its business. 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 between the parties, provided that it constitutes a credible and reasonable settlement, and that the one accomplishing it has done so voluntarily and with a full understanding of its import. It becomes invalid (1) where there is clear proof that the waiver was wangled from an unsuspecting or gullible person; or (2) where the terms of settlement are unconscionable on their face; in these cases, 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 that XYZ will close or cease its operations. He was tricked into accepting and signing it. XII On 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 contract of the Philippine Overseas Employment Administration (POEA), his employment was to 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 POEA for his supposed departure on January 15, 2009, XYZ still had not deployed him for no valid 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, even before the start of any employer-employee relationship, contemporaneous with the perfection of the employment contract was the birth of certain rights and obligations, the breach of which may give rise to a cause of action against the erring party. ABC Cruises Inc. unilaterally and unreasonably reneged on its obligation to deploy petitioner and must therefore answer for the actual damages A suffered. A is also entitled to attorneys fees in the concept of damages and expenses of litigation. Attorney's fees are recoverable when the defendant's act or omission has compelled the plaintiff to incur expenses to protect his interest. (Santiago v. CF Sharp Crew Management, GR 162419, July 10, 2007) XIII A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is the recognized exclusive bargaining agent. Although A is a member of rival union XYRMU, he receives the benefits under the CBA that XYZ-EU had negotiated with the company. XYZ-EU assessed A, a fee equivalent to the dues and other fees paid by its members but A insists that he has no obligation to pay said dues and fees because he is not a member 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 avail of the benefits flowing from the CBA are called agency fees. Payment of agency fee to the bargaining union/ agent which negotiated the CBA is but a reasonable requirement recognized by law, to prevent non-union members from enriching themselves at the expense of union members. PART II XV

Samahang Manggagawa ng Terracota, a union of supervisory employees at Terracota Inc., recently admitted a member of the companys managerial staff, A, into the union ranks. 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 the rank-and-file employees but may join, assist or form separate labor organizations of their own. b. Assuming that A is ineligible to join the union, should the registration of Samahang Manggagawa ng Terracota be cancelled? Explain. (3%) NO because under the Labor Code, the inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union.

XVI On the first day of collective bargaining negotiations between rank-and-file Union A and B Bus Company, the former proposed a P45/day increase. The company insisted that ground rules for negotiations should first be established, to which the union agreed. After agreeing on ground rules on the second day, the union representatives reiterated their proposal for a wage increase. When company representatives suggested a discussion of political provisions in the Collective Bargaining Agreement as stipulated in the ground rules, union members went on mass leave the next day to participate 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 of Labor and Employment. The Union opposed the petition, arguing that it did not intend 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 a strike, the same was valid because of the refusal of the company to discuss the economic provisions of the CBA. Rule on the contention. (2%) c. Union member AA, a pastor who headed the prayer rally, was served a notice of termination by management after it filed the petition for assumption of jurisdiction. May the company validly terminate AA? Explain. (2%) XVII A was hired to work in a sugar plantation performing such tasks as weeding, cutting and 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 houseboy at the house of the plantation owner. For the next planting season, the owner decided not to hire A as a plantation worker but as a houseboy instead. Furious, A filed a case for illegal dismissal against the plantation owner. Decide with reason. (3%) According to a case decided by the Supreme Court, in order that a seasonal employee may be deemed to have attained regularity of employment as such, the following requisites must 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 or service to be performed by the employee is seasonal in nature and the employment is for the duration of the season, no prior notice of termination of the seasonal employment is required in order 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. XVIII Flight attendant A, five feet and six inches tall, weighing 170 pounds ended up weighing 220 pounds in two years. Pursuant to the long standing Cabin and Crew Administration Manual of the employer airline that set a 147-pound limit for As height, management sent A a notice to shape up or ship out within 60 days. At the end of the 60-day period, A reduced her weight to 205 pounds. The company finally served her a Notice of Administration Charge for violation of company standards on weight requirements. Should A be dismissed? Explain. (3%)

Same in 2008 X XIX Several employees and members of Union A were terminated by Western Phone Co. on the ground of redundancy. After complying with the necessary requirements, the Union staged a strike and picketed the premises of the company. The management then filed a petition for the Secretary of Labor and Employment to assume jurisdiction over the dispute. Without the benefit of a hearing, the Secretary issued an Order to assume 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 all striking workers to return to work within 24 hours, except those who were terminated due to redundancy. Was the Order legal? Explain. (3%) XXIV Rank-and-file workers from Peacock Feathers, a company with 120 employees, registered their independent labor organization with the Department of Labor and Employment (DOLE) Regional Office. Management countered with a petition to cancel the unions registration on the ground that the minutes of ratification of the union constitution and by-laws submitted to the DOLE were fraudulent. Specifically, management presented affidavits of ten (10) out of forty (40) individuals named in the list of union members who participated in the ratification, alleging that they were not present at the supposed January 1, 2010 meeting held for the purpose. The union argued 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) union members were enough to register a union. Decide with reason. (3%) XXV Company C, a toy manufacturer, decided to ban the use of cell phones in the factory premises. In the pertinent Memorandum, management explained that too much texting and phone-calling by employees disrupted company operations. Two employees members of Union X were terminated from employment due to violation of the memorandum-policy. The union countered with a prohibitory injunction case (with prayer for the issuance of a temporary restraining order) filed with the Regional Trial Court, challenging the validity and constitutionality of the cell phone ban. The company filed a motion to dismiss, arguing that the case should be referred to the grievance machinery pursuant to an existing Collective Bargaining Agreement with Union 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 between College X and the Union prompted the latter, after duly notifying the DOLE, to declare a strike on November 5. The strike totally paralyzed the operations of the school. The Labor Secretary immediately assumed jurisdiction over the dispute and issued on the same day (November 5) a return to work order. Upon receipt of the order, the striking union officers and members, on November 1, filed a Motion for Reconsideration thereof questioning the Labor Secretary's assumption of jurisdiction, and continued with the strike during the pendency of their motion. On November 30, the Labor Secretary denied the reconsideration of his return to work order and further noting the strikers' failure to immediately return to work, terminated their employment. In assailing the Labor Secretary's decision, the Union contends that: 1. The Labor Secretary erroneously assumed jurisdiction over the dispute since College X could not be considered an industry indispensable to national interest; The Supreme Court has already ruled that educational institutions are in an industry indispensable to the national interest, considering the grave adverse effects that their closure entails on their students and teachers. 2. The strikers were under no obligation to immediately comply with the November 5 return to work order because of their then pending Motion for Reconsideration of such order; and

The striking workers must immediately comply with a Return to Work Order even 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 Court in Sarmiento v. Juico, 162 SCRA 676 (1988) as: It is also important to emphasize that the return to work order not so much confers a right as it imposes a duty. It must be discharged as a duty even against the workers' will. Returning to work in this situation is not a matter of options or voluntariness 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 petition questioning their validity. 3. The strike being legal, the employment of the striking Union officers and members cannot be terminated. Rule on these contentions. Explain. (5%) The continuing strike is illegal because it is in defiance of a return to work order of the Secretary of Labor and Employment, hence, termination of employment of all those who participated whether officer or member, is legal. In Sta. Scholastica's College v. Torres. 210 SCRA 565 (1992), the Court ruled: Any worker or union officer who knowingly participates in a strike defying a return to work order may, consequently, be declared to have lost his employment status in accordance with Art. 264 of the Labor Code. II. In the Collective Bargaining Agreement (CBA) between Dana Films and its rank-andfile Union (which is directly affiliated with MMFF, a national federation), a provision on the maintenance of membership expressly provides that the Union can demand the dismissal of any member employee who commits acts of disloyalty to the Union as provided for in its Constitution and By-Laws. The same provision contains an undertaking by the Union (MMFF) to hold Dana Films free from any and all claims of any employee dismissed. During the term of the CBA, MMFF discovered that certain employee-members were initiating a move to disaffiliate from MMFF and join a rival federation, FAMAS. Forthwith, MMFF sought the dismissal of its employee-members initiating the disaffiliation movement from MMFF to FAMAS. Dana Films, relying on the provision of the aforementioned CBA, complied with MMFF's request and dismissed 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 from its mother federation is well-settled. A local union, being a separate and voluntary association, 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 the constitutional guarantee of freedom of association. Disaffiliation cannot be considered an act of disloyalty. Thus, the Act of initiating move to disaffiliate is not an act of disloyalty. (Tropical Hut Employee's Union-CGW, et al. vs. Tropical Hut Food Market, Inc., et al, G.R. Nos. L-349599, January 20. 1990) b. What are the liabilities of Dana Films and MMFF to the dismissed employees, i f any? (5%) MFF can be held liable to pay the back wages of the dismissed employees. Royal can be held jointly and severally liable for back wages if it acted with undue haste in dismissing the employees (Manila Cordage Co. v. CIR, 78 SCRA 398). In addition, Royal can be ordered to reinstate 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 in representation of the rank and-file employees of the corporation. The CBA was effective up to June 20, 2011. The contract had an automatic renewal clause which would allow the agreement after its expiry date to still apply until both parties would have been able to execute a new agreement. On May 10, 2011, Union X submitted 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 a merger with Z, a corporation also engaged in the manufacture of textile garments.

Z assumed all the assets and liabilities of Y. Union X filed a complaint with the Regional Trial Court for specific performance and damages with a prayer for preliminary injunction against Y and Z and Z filed a Motion to Dismiss based on lack of jurisdiction. Rule on the Motion to Dismiss. (5%) I will grant the Motion to Dismiss. The act of Y suspending negotiations with Union X could be an unfair labor practice. It could be a violation of the duty to bargain collectively. As such, 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 from employment due to the closure of Construction Corporation A. The Cruz family owned Construction Company A. Upon the closure of Construction Company A, the Cruzes established Construction Company B. Both corporations had the same president, the same board of directors, the same corporate officers, and all the same subscribers. From the General Information Sheet filed by both companies, it also showed that they shared the same address and/or premises. . Both companies also hired the same accountant who prepared the books for both companies. X and his co-employees amended their Complaint with the Labor Arbiter to hold Construction Corporation 8 joint and severally liable with Construction Company A for illegal dismissal, backwages and separation pay. Construction Company 8 interposed a Motion to Dismiss contending that they are juridical entities with distinct and separate personalities from Construction Corporation A and therefore, they cannot be held jointly and severally liable for the money claims of workers who are not their employees. Rule on the Motion to Dismiss. Should it be granted or denied? Why? (5%) It is very clear that Construction Corporation A and Construction Company B belong to the Cruz family and have the same board of directors, the same corporate officers, and all the same subscribers. It also showed that they shared the same address and/or premises. The case in question justify piercing the veil of corporate fiction of the other corporations in order to protect the rights of workers. The Supreme Court ruled that it is a fundamental principle of corporation law that a corporation is an entity separate and distinct from its stockholders and from other corporations to which it may be connected. But this separate and distinct personality of a corporation is merely a fiction created by law for convenience and to promote justice. So, when the notion of separate juridical personality is used to defeat public convenience, justify wrong, protect fraud or defend crime, or is used as a device to defeat the labor laws, this separate personality of the corporation maybe disregarded or the veil of corporate fiction pierced. VII. a. The modes of determining an exclusive bargaining agreement are: 1. voluntary recognition 2. certification election 3. consent election Explain briefly how they differ from one another. (5%) Voluntary recognition refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office. (IRR) Certification Election" or "Consent Election" refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification election is ordered by the Department, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. (IRR) CERTIFICATION ELECTION is the process of determining the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit [Section l(h), Rule I, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003 (17 February 2003)]. CONSENT ELECTION is an agreed election, conducted with or without the intervention of the DOLE to determine the issue of majority representation of all the workers in the appropriate bargaining unit (Algire v. De Mesa, G.R. No. 97622, October 19, 1994).