Formation of Labor Unions

Categories of Employees

1.) Managerial -those vested with the power to lay down and execute management policies, hire, transfer, suspend, lay-off, recall, discharge, assign and discipline employees. They're not allowed to form labor unions.

2.) Supervisory -those in the employer's interest who recommend managerial actions (actions of managerial employees) if the exercise of such authority requires one's own independent judgment. They can form labor unions.

3.) Rank and File -neither managerial nor supervisory employees. They can form labor unions.

4.) Confidential -entrusted with confidence on delicate matters or with the care, protection and custody of the employer's property (doctrine of necessary implication.) Not allowed to form labor unions.

All agricultural and industrial enterprises, regardless of whether formed for profit or not, have the right to form unions and engage in collective bargaining. Foreigners can't form nor join labor unions. The body responsible for doing this in the company is the labor union.

Registration of Labor Unions

The registration of a labor union is indispensable. An unregistered union is an illegal one. The purposes of registration are as follows:

1.) To protect both labor and the public from abuses, fraud and, most importantly, impostors who don't really have the concerns of labor at heart and pretend to be organizers of unions they claim to represent (Villar vs. Inciong, 121 SCRA 444.)

2.) Registration is a valid exercise of police power since labor activities affect public interest.

Registration isn't the only requirement of a legitimate labor union. It must also maintain a registered status. The application for registration must be signed by 20% of the employees who form the bargaining unit (the union) and filed with the BLR or the DOLE regional office where the applicant's principal is located. The following must be prepared:

1.) Registration fee (Php50.00)

2.) Names of the officers and their addresses as well as the principal address of the union

3.) Minutes of organization meetings and a list of the workers who participated in them

4.) Names of all the members ( must comprise at least 20% in the bargaining unit where it intends to operate -in case it's an independent union)

5.) Annual finance report (if the union has been in existence for more than a year)

6.) 4 copies of the constitution and by-laws, minutes of its adoption and ratification and a list of members who participated in the ratification (the list can be disregarded if the constitution and by-laws were ratified/adopted during the organizational meeting)

7.) Sworn statement by the applicant union that:

a.) There is no certified bargaining agent in the bargaining unit concerned

b.) In case there is an existing CBA registered with the DOLE, a statement that application for registration is filed during the freedom period (60 days before the expiry of the CBA)

c.) The application and documents must be under oath by the union secretary or treasurer and attested to by its president

Once the requirements are submitted, the DOLE regional office has 30 days to approve or deny the application. If denied, the union has 10 days to appeal to the BLR director. If still denied, it's appealable to the CA.

Once approved, the legitimacy of a labor union can't be attacked collaterally. The remedy is to file a petition for the cancellation of registration. Cancellation, however, won't suspend certification election proceedings. It also won't prevent the filing of a petition for certification election.

The grounds of cancellation of union registration are the following:

1.) Misrepresentation, false statements or fraud in connection with the adoption/ratification of the constitution and by-laws or its amendments, minutes of ratification and list of members who participated in the ratification

2.) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers and list of voters

3.) Voluntary dissolution by the members

For federations or national unions, the following requirements are needed:

1.) Statement indicating the name of the applicant union, its principal address, names of its officers and addresses

2.) Minutes of the organizational meeting and a list of employees who participated in it

3.) Annual financial reports if it has been in existence for 1 year or more -unless it hasn't collected any amount from the members (a statement to that effect will be included in that case)

4.) Union constitution and by-laws and the minutes of its adoption/ratification and a list of the members who participated in it (the list isn't necessary if the same instance in #6 in the list of requirements for registration)

5.) Proof of affiliation of at least 10 locals/chapters (each of the must be a duly certified/recognized bargaining agent in the establishment/industry where it operates)

6.) Names and addresses of the companies where the locals/chapters operate and a list of members in each chapter/local in each company

Unions that are members of a federation or national union are called "chartered locals." A chartered local can be registered without the 20% minimum membership and can adopt the constitution and by-laws of the federation/national union as its own.

The federation or national union can also revoke the charter of a chartered local on the grounds of disloyalty and others indicated in its constitution and by-laws. It can do this by serving a verified notice on the chartered local with a copy furnished to the BLR.

Independent unions may affiliate themselves with a federation or national union. It can do this by submitting such an issue to its members. A majority vote is needed. After the majority vote is reached, a resolution or request is sent to the federation. If the federation or national union accepts, it offers the affiliate a contract of affiliation. Disaffiliation is also allowed; it depends on the terms and conditions of the contracts and the relations between the affiliate and the federation. The requirements for affiliation are as follows:

1.) Resolution of the union's board of directors approving the affiliation

2.) Minutes of the membership meeting approving the affiliation

3.) Total number of members comprising the union and the names of the members who approved of the affiliation

4.) Certificate of affiliation issued by the federation in favor of the independently registered union

5.) Written notice to the employer if the affiliating union is the incumbent bargaining agent in the CBA

For chartered locals and affiliates, there are additional requirements needed:

1.) Constitution and by-laws

2.) Set of officers

3.) Books of accounts

A local will only be recognized as such if the following are submitted to the BLR:

1.) The certificate issued by the federation/national union within 30 days from its issuance

2.) Constitution and by-laws, statement as to set of officers and books of accounts (all must be certified by the local treasurer or secretary and attested to by its president)

Failure of the union to submit its books of accounts to the BLR can be a ground the employer can rely on to oppose a petition for certification election filed by the chartered local concerned (Protection Technology, Inc. vs. Secretary of Labor, GR 117211, March 1, 1995.)

Substitutionary Doctrine

Employees can't revoke a validly-executed CBA by simply changing their bargaining agent. The new bargaining agent must respect the CBA. They can. however, agree with the employer to shorten the term of the CBA.