NLRB and Labor Disputes: Understanding Yellow-dog Contracts and Unfair Labor Practices, Study notes of Law

Download NLRB and Labor Disputes: Understanding Yellow-dog Contracts and Unfair Labor Practices and more Study notes Law in PDF only on Docsity! 1. 1. 1. 1. 2. 1. 2. 3. 4. 2. 3. 2. 1. 1. 2. 3. 1. 1. 2. 4. 1. 1. 2. 3. 1. 1. Labor Relations Part 4 by Atty. Anselmo S. Rodiel IV E. Unfair labor practices Nature, aspects Nature Unfair labor practice Constitution - Violate the constitutional right of workers to self-organization Interests - Inimical to the interests of labor and management Include the right to bargain collectively Otherwise deal with each other in an atmosphere of freedom and mutual respect Industrial peace - Disrupt industrial peace Healthy Relations - Hinder the promotion of healthy and stable labor management relations. (Art. 258) NOT all illegal acts or unfair treatments are unfair labor practices. It only becomes ULP once the right to self-organization has been violated. (Great Pacific Life Employees Union v Great Pacific Life Assurance Corporation) The person who alleges the ULP, i.e., the employee, has the burden of proving it with substantial evidence. (UST Faculty Union v UST) Aspect Unfair labor practice Not only violation of civil rights But also criminal offenses against the State. (Art. 258) Jurisdiction The civil aspect of ALL cases involving ULP shall be under the jurisdiction of the Labor Arbiter Subject to the exercise by the President OR Secretary of Labor of the powers vested in them by Articles 263 and 264 Recovery of civil liability in the administrative proceedings (Labor Arbiter) BAR recovery under Civil Code. (Art. 258) Condition sine qua non for institution of criminal action No criminal prosecution may be instituted Without a final judgment Finding ULP was committed In the administrative proceeding During the pendency of the administrative proceedings The running of prescription of the criminal offense, i.e., 1 year, is interrupted 2. 1. 2. 3. 2. 1. 1. 2. 1. 1. 2. 1. 2. 3. 4. But the finding of ULP in the administrative proceedings Not be binding in the criminal case Nor be considered as evidence of guilt But merely as proof of compliance with requirements. (Art. 258) Civil Aspect ULP Criminal Aspect ULP ALL the employer/officers/agents; ALL the LO/officers/agents Only those who actually participated in/authorized/ratified the ULP shall be criminally responsible. Labor Arbiter, subject to the powers of Secretary/President Regular Courts Substantial evidence Proof beyond reasonable doubt It can be instituted once the ULP was committed It cannot be instituted without a final judgment, finding that ULP was committed, in the administrative proceeding (civil aspect). 1 year from accrual of ULP 1 year from accrual of ULP. However, during the pendency of the administrative proceedings (civil aspect), the running of prescriptive period is suspended. By employers; 9 ULPs Right to self-organization (Catch-all) To interfere with/restrain/coerce the exercise of right to SELF- ORGANIZATION What is a run-away shop? It is a ULP of the employer which takes place by: effecting the transfer of ownership, the plant itself, or its equipment, and machines or temporarily closing its business property to bust the union or to prevent the employees from unionizing. (NAPLU v Ople) It may also be done to illegally dismiss the employees and/or to evade the payment of wages. Hence, it is NOT a valid exercise of management prerogative because the PURPOSE is unlawful. In Commercial Law, piercing the corporate veil applies. The act of the employer in interrogating its employees due to membership in the union is a ULP. (Scoty’s Department Store vs. Micaller) The act of the employer in conducting espionage or surveillance of the meetings and activities of the union. Surveillance is illegal since it shows the opposition of the employer to the existence of the union. 9. 1. 1. 3. 1. 1. 2. 1. 2. 1. 1. 1. 2. 1. 1. 1. 2. 3. 4. Pay fees union/officers settlement To pay negotiation/attorney’s fees to union/officers/agents As part of settlement of issue in CBA/labor dispute By organizations Right to self-organization To restrain/coerce the right to self-organization However, a labor organization can prescribe its own rules for acquisition or retention of membership. Hence, the labor organizations can interfere, but it cannot restrain/coerce. Cause employer + Discriminate/Terminate other usual To cause/attempt to cause an employer: To discriminate against an employee Including to discriminate an employee with respect to whom membership in the union has been denied To terminate an employee on any ground other than the usual terms and conditions under which membership is made available to other members The union security clause cannot be arbitrarily used. A union member may not be expelled from the union, and the job, due to personal and impetuous reasons or for causes foreign to the closed-shop agreement. (Manila Mandarin Employees Union v NLRC, 1987) Mere utterance of “wala akong tiwala sa union nyo” against the union steward does not warrant an expulsion from the union. It was merely done because the steward was lazy at his job. Hence, the subsequent request of the union to enforce the union security clause is a ULP, because it caused the employer to discriminate against an employee/terminate his employment on any ground other than the usual. (Manila Mandarin Employees Union v NLRC, 1987) The right to disaffiliate is inherent in a labor union. Hence, the mother federation is liable for ULP when it caused the employer to dismiss those employees who disaffiliated. (Liberty Cotton Workers v Liberty Cotton, 1975) The union commits a ULP if it arbitrarily excludes qualified applicants from membership. Further, a closed shop provision will not justify the employer in dismissing an employee who was denied membership without any reasonable ground therefor. (Rance v NLRC, 1988) 3. 4. 5. 1. 1. 2. 1. 6. 4. 1. 1. 2. 1. 2. 1. 1. 1. 1. 2. 3. 1. 1. Violate duty to bargain Gross Violation CBA Employer pay services not performed (Featherbedding) To cause/attempt to cause the employer To pay/deliver any money For services NOT/NOT to be performed Including the demand for a fee for union negotiations. Accept fees union/officers settlement Totality of conduct doctrine (implicit implications, but also the background/collateral circumstances) The doctrine provides that the culpability of an employer’s remarks must be evaluated, not only on the basis of their implicit IMPLICATIONS, but also to the BACKGROUND of and in conjunction with the collateral circumstances. (The Insular Life Employees Association v The Insular Life, 1971) Hence, expressions which are innocent in themselves may constitute ULP because of the background/collateral circumstances when they were uttered. If the act is specific, i.e., all the provisions of Art. 259-260 aside from catch-all and duty to bargain, then it is easy. There is no need to apply this doctrine. Hence, this doctrine applies to catch-all and duty to bargain. To determine if the right to self-organization was interfered with/ restrained/coerced, we have to check the totality of the conduct of the employer/LO. Further, in determining whether an employer has not bargained in good faith, the totality of all the acts of the employer at the time of negotiations must be taken into account. (SONEDCO Workers Free Labor Union v. Universal Robina Corp, 2016, Leonen) _______________________________________________________________________________________ _______________________________________________________________________________________ ________________ F. Peaceful concerted activities By labor organization Strike “Strike” is defined as: Any temporary stoppage of work By the concerted action of the employees As a result of an industrial or labor dispute. (Art. 219(o)) Can a mass leave be considered a strike? Yes. A “mass leave” happens when there is SIMULTANEOUS availment by a LARGE number of employees of authorized LEAVE BENEFITS. In such case, there is a temporary stoppage of work by concerted 1. 2. 1. 1. 1. 1. 2. 1. 1. 2. 2. 1. 1. 1. 2. 3. 1. 2. 3. 1. action. (Naranjo v Biomedical Healthcare, 2012) Valid strikes as distinguished from illegal strikes 7 factors determining the legality of a strike (Azucena) Is there a strike in the first place? If there is no temporary stoppage of work, it is not a strike. Hence, any employee can perform a protest during lunch breaks or after-office hours, because that is not a strike. Is there a labor dispute? A labor dispute is any controversy: terms/conditions of employment or the association/representation of persons NFMCA the terms and conditions of employment. (Art. 219(l) What is the purpose of the strike? It must be due to bargaining deadlock and/or ULP only. The first one is called as economic or voluntary strike, while the second one is called ULP or involuntary strike. Under the Good Faith Strike Doctrine, a strike may be considered legal where the union believed in good faith that the company committed ULP, although it was subsequently found that there is no ULP. (Bacus v Ople, 1984) There must be a RATIONAL BASIS for the belief that a ULP was committed. No labor union may strike involving inter-union and intra-union disputes. (Art. 287(b)) Why? Because such disputes did not arise from bargaining deadlock or ULP. Non-gross violations of the CBA are non-strikeable issues. Hence, a strike conducted due to such violations is illegal. As example, conflicting construction in the terms of the CBA is not strikeable because it is not a flagrant/ malicious violation. Instead, the grievance machinery must be resorted to. However, a flagrant violation of a union security clause (non-economic provision) constitutes a ULP because it restrains the exercise of the right to self- organization. Is the employee prohibited by law to strike? Government employees are not allowed to strike because they cannot collectively bargain. The terms and 1. 2. 3. 1. 1. 2. 1. 2. 3. 3. 1. 4. 5. 6. dispute and decide it; OR The Secretary may certify the same to the NLRC for compulsory arbitration Effects: It shall have the effect of: Enjoin - Automatically enjoining the intended strike/lockout If already taken place, Return-to-work - All employees SHALL immediately return-to-work (mandatory) Resume operations - Employer SHALL immediately resume operations; and Readmit same terms - Employer SHALL readmit all workers under the SAME TERMS AND CONDITIONS prevailing before the strike/lockout. (Art. 278(g)) Consolidation - When the Secretary assumes jurisdiction, ALL labor disputes which are relevant/incidental to the certified case shall be CONSOLIDATED/SUBSUMED/ABSORBED by the certified case. The other proceedings shall give way to the assumption of jurisdiction. Hence, the Secretary can resolve issues submitted to it and issues in the absorbed pending labor cases. (International Pharmaceuticals v Secretary of Labor, 1992) An employee who refuses to return-to-work despite the assumption of jurisdiction can be dismissed from the job. Why? Because it is tantamount to abandonment of employment, i.e., 1) failure to return to work without valid reason, and 2) intent to sever employment as clearly manifested by the refusal to comply with the return-to- work order. Further, criminal prosecution can be instituted against him. (Art. 284) Lastly, the Secretary may cite him in contempt. The mere issuance of an assumption order automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the order. (Telefunken v CA, 2000) A payroll reinstatement is not allowed. Why? Because the provision states that the workers shall be readmitted under the same terms and conditions prevailing before the strike/lockout. A payroll reinstatement is not the 6. 7. 1. 6. 1. 1. 2. 1. 2. 3. 1. 2. 4. 5. 6. same as actual reinstatement. In any case, before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. (Art. 278(h) As exception to the exception, the dispute cannot be withdrawn if it is already pending with the Supreme Court. Were the means and methods of undertaking the strike valid? The Doctrine of Means and Purposes provides that a strike is legal when the lawful means concur with lawful purpose. Lawful purpose means the strike is for the purpose of ULP (ULP strike) or collective bargaining (economic strike) ONLY. Lawful means provides that the strike must be pursued within the bounds of the law: No person engaged in picketing shall commit violence/coercion/intimidation Nor can he obstruct the free ingress to or egress from the employer’s premises Nor can he obstruct the public thoroughfares, i.e., highway (Art. 279(e) In Toyota Phils. Corp Workers v NLRC, 2007, the Court ruled that there is illegal strike when the union employed unlawful means in the pursuit of its objective, such as the prohibited acts under Art. 279. Further, in Shell Oil Workers v Shell Company, 1971, under the Means Employed Test, a strike which is legal at its inception may eventually be declared illegal if illegal acts were committed during the strike. A slowdown strike is one staged without the workers quitting their work but by merely slackening or by reducing their normal work output. It is illegal because a valid strike requires temporary stoppage of work. A wildcat strike is one declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent. Hence, it is illegal. A sit-down strike is a strike where the workers 6. 7. 7. 1. 1. 2. 1. 1. 2. 1. 2. 1. 2. 3. 1. stop working but do not leave their place of work. It is illegal because it deprives the employer of his property. A sympathy/sympathetic strike is a strike conducted by employees who have no demands or grievances of their own, but they strike to aid others. It may happen within one establishment or different establishments. It is illegal because there is no labor dispute. Is there an agreement between the parties not to strike? The parties can agree on a no-strike no-lockout clause. However, this clause applies ONLY to economic strikes and NOT to ULP strikes. (Master Iron Labor Union v NLRC, 1993) What are the effects of an illegal strike? The employer may be authorized to terminate the employment of: Union officers who knowingly participated in the illegal strike or in the commission of other illegal acts; and/or Any worker who knowingly participated in the commission of other illegal acts during the strike. (Art. 279(a) NCMB Primer on Strikes, Pickets, and Lockouts) Hence, workers who knowingly participated in a mere illegal strike cannot be terminated from employment. “Knowingly participated” includes a situation where the union officers and the members a) ALL agreed to commit illegal acts as a policy, and b) there were widespread illegal acts during the strike. In any case, the members who participated must still be identified to comply with the right to due process. However, if there are illegal acts on both sides, i.e., from the employer and the union, the employer cannot terminate the union officers/workers. If they were terminated, the workers are entitled to reinstatement with backwages. Is an employee who participates in a lawful strike deemed to have abandoned his job? No. An employee who goes on strike is not deemed to have 1. 1. 2. 3. 2. 1. 1. 3. 1. 2. 4. 1. 3. 1. 2. 1. 1. 1. 1. 2. 1. “Lockout” is defined as: The temporary refusal of an employer To furnish work As a result of an industrial or labor dispute. (Art. 219(p)) Requisites of a valid lockout: The same as strikers, with modifications such as: Strike Vote - the lockout must be approved by a majority vote of the members of the Board of Directors/partners, obtained by secret ballot, in a meeting duly called for the purpose. Prohibited activities by employer during picketing: PEACEFUL PICKETING - No person shall obstruct/impede/ interfere with, by force/violence/coercion/threats/intimidation, any PEACEFUL picketing by employees during any labor controversy or in the exercise of the right to self-organization, or collective bargaining. (Art. 280) STRIKE BREAKER - No employer shall use or employ any strike- breaker, nor shall any person be employed as a strike-breaker. What are the effects of an illegal lockout? Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full backwages. Assumption of jurisdiction by the Secretary of DOLE Industry indispensable to the national interest Effects of assumption of jurisdiction Already discussed. _______________________________________________________________________________________ _______________________________________________________________________________________ ______________ VI. Management Prerogative The doctrine off management prerogative provides that every employer has the INHERENT right to regulate, according to his OWN DISCRETION and judgment, ALL aspects of employment, including hiring, work assignments, working methods, the time, place, and manner of work, work supervision, transfer of employees, lay-off workers, and discipline employees. (Peckson v Robinsons, 2013) The prerogative must be upheld so long as: Exercised in good faith, and Not to defeat the rights of the employees under the law or agreements, i.e., right to security of tenure/illegal dismissal. (Coca- Cola Bottlers v Kapisanan, 2005) Hence, the employer does NOT have the prerogative to dismiss the existing employees and replace them with workers employed by an independent contractor. Why? Because that will circumvent 1. 3. 1. 2. 3. 2. 1. 2. 3. 1. 3. 1. 1. 2. 2. 3. 1. 2. 3. 4. 5. 4. their right to security of tenure, amounting to illegal dismissal. There must be NO abuse of discretion, and with due regard to the rights of labor. (Unicorn Safety Glass v Basarte, 2004) COMMENT: In the Bar, management prerogative will likely be related to security of tenure OR unfair labor practice. Your answer will depend on the legality of the act of employer (good faith/not defeat/no abuse). If it is legal, you use the paragraph above. If illegal, you use the doctrines and provisions in security of tenure/illegal dismissal/ unfair labor practice. If legal -> the answer would be above. If legal + the employee disobeyed -> above -> refusal to comply -> just cause for termination -> legal dismissal If illegal -> done in bad faith -> illegal(constructive) dismissal Discipline The employer has the right to discipline/dismiss his employees. For dismissal, the substantive due process (just/authorize cause) and procedural due process must be observed. In line with the right to discipline/dismiss, the employer has the right to prescribe company rules and regulations for the conduct of its business and to private disciplinary measures to implement the rules. (Phimco Industries v NLRC, 1997) The “reasonable proportionality rule” provides that infractions committed by an employee should merit a corresponding sanction demanded by the circumstances. The penalty must be COMMENSURATE to the gravity of the offense. (Manila Memorial Park v Panado, 2006) If the penalty of dismissal is NOT commensurate to the infraction, there is illegal dismissal. Hence, the employee must be reinstated to his position. (Manila Memorial Park v Panado, 2006) Transfer or employees “Transfer” means movement: From one position to another of equivalent rank/salary, or From one office to another within the same establishment. The right to transfer includes the right to reorganize; to promote; and to demote. What are the limitations on the transfer of employees? Done in Good faith It cannot be used to get rid of Undesirable employee It cannot be done without the employee’s Consent. The mere fact that it was Inconvenient does not make it illegal. It must be within the bounds of Law. (COMMENT: In short, in good faith + with consent of employee) As example of valid transfer, by the very nature of his job as a drug salesman, he is expected to travel. Hence, when the complaint was filed 4. 5. 1. 4. 1. 2. 1. 2. 1. 3. 1. by the employee for illegal dismissal, for allegedly terminating his employment when he refused to accept his reassignment to a new area, the Court upheld the right of the drug company to transfer or reassign its employee in accordance with its operational demands and requirements. (Abbott Laboratories v NLRC) Further, transferring employees, if done fairly and in good faith, is a valid exercise of management prerogative and will not amount to constructive dismissal. (Manalo v. Ateneo de Naga University, 2015, Leonen) COMMENT: If they refused to comply with an order given in good faith, that is a just cause for termination. Hence, in an illegal dismissal question, the answer would be management prerogative done in good faith -> failure to comply with the order -> just cause to terminate -> no illegal dismissal. Productivity standards An employer is entitled to impose productivity standards as management prerogative, so long as they are exercised in good faith. (Aliling v Feliciano, 2012) Failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. “Gross efficiency” is analogous to gross and habitual neglect. As the operator of Graphics, Inc.’s printer, he is mandated to check whether the colors that would be printed are in accordance with the client’s specifications. Unfortunately, he failed to observe this simple procedure and proceeded to print without making sure that the colors were at par with the client’s demands. This resulted to delays in the delivery of output, client dissatisfaction, and additional costs. Hence, his termination was valid. (Realda v New Age Graphics, 2012) Security of tenure is indeed constitutionally guaranteed. However, this should not be indiscriminately invoked to deprive an employer of its management prerogatives and right to shield itself from incompetence, inefficiency and disobedience displayed by its employees. (Realda v New Age Graphics, 2012) Failure to meet sales or work quotas falls under the concept of gross inefficiency, which in turn is analogous to gross neglect of duty that is a just cause for dismissal under Article 282 of the Code. However, in order for the quota imposed to be considered a valid productivity standard and thereby validate a dismissal, management’s prerogative of fixing the quota must be exercised in good faith for the advancement of its interest. The duty to prove good faith, however, rests with the employer as part of its burden to show that the dismissal was for a just cause. Here, the alleged imposition of the quota was a desperate attempt to lend a semblance of validity to 2. 1. 10. 1. 2. 3. 1. 2. 3. 1. 1. 1. 2. 3. 4. 5. 6. the undertaking is a civil law dispute, not a labor law case. (Portillo v Rudolf Lietz, 2012) Hence, the action for damages shall be filed with the regular courts, and not the labor arbiter, since it is a pure civil law dispute. Floating status The practice of placing security guards on "floating status" or "temporary off- detail" is a valid exercise of management prerogative. Jurisprudence has settled that the period of temporary off-detail must not exceed six (6) months. Beyond this, a security guard's floating status shall be tantamount to constructive dismissal. Temporary displacement or temporary off-detail of security guard is, generally, allowed in a situation where a security agency's client decided not to renew their service contract with the agency and no post is available for the relieved security guard. Such situation does not normally result in a constructive dismissal. (Padilla vs. Airborne Security Service, Nov. 22, 2017, Leonen) _______________________________________________________________________________________ _______________________________________________________________________________________ ______________ VIII. Jurisdiction and Remedies NOTE: (224, 229, 128, and 129 are the most important ones) For LA and NLRC, just memorize 224 and 229 For RD, just memorize 128 and 129 The other quasi-judicial agencies are just extra. For an easier guide, use the TABLE made by SB Alabang. A. Labor Arbiter Exclusive and original jurisdiction of the Labor Arbiter (6) ULP - Unfair labor practice Termination - Termination dispute Strike - Violation of Art. 279 (prohibited activities) and questions involving legality of strikes/lockouts Damages employment - Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations Reinstatement + terms employment - If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; Other employment + exceed P5000 + regardless reinstatement - Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee 6. 7. 8. 1. 2. 9. 10. 1. 1. 1. 2. 3. 2. 1. 1. 1. 2. 2. 1. relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00), regardless of whether accompanied with a claim for reinstatement. (Art. 224) OFW - Monetary claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including damage, and death and disability benefits. (RA 8042, as amended) Contested cases - Art. 128(b), i.e., Except in cases where the employer: contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (Brokenshire Memorial Hospital, Inc. v. Minister of Labor and Employment, 1990) Enforce compromise non-compliance - Enforcement of compromise agreements when there is non-compliance or prima facie evidence that it was obtained through fraud/coercion in Art. 233 Wage distortion - Wage distortion dispute in unorganized establishments not voluntarily settled by the parties with the NCMB (RA 6727) Unfair labor practice The civil aspect of all cases involving ULP shall be under the jurisdiction of the LA. The criminal aspect shall be under the jurisdiction of the MTC. To remember, no criminal action for ULP shall be instituted without a finding of ULP in the administrative case. (Art. 258) Recovery of damages in the administrative proceedings (LA) shall BAR recovery of damages under the Civil Code. (Art. 258) If gross violation of CBA, it is LA. If not “gross,” it is the grievance machinery, and later a voluntary arbitrator. Termination disputes Labor Arbiter v Grievance machinery When the dispute is still the interpretation/implementation/ enforcement of CBA provisions/company personnel policies - Grievance machinery then voluntary arbitration However, failure of the employer to raise that the grievance machinery is the proper body confers jurisdiction to the Labor Arbiter. (Atlas Farms v NLRC, 2002) But when there is actual termination already - Labor Arbiter Labor law v Commercial law Despite being an employee, the RTC has jurisdiction because it is an intra-corporate dispute (Discussed below) 3. 4. 1. 2. 5. 1. 6. 1. 7. 1. 1. 2. 3. 4. 2. 1. 2. 1. 3. 1. 1. Strike/Lockout Damages arising from employment relations This is enacted to compare with RD (Art. 129). For the claim for damages, LA has jurisdiction, not RD. For the monetary claims arising from employer-employee relations, RD may have the jurisdiction. (Art. 129) Reinstatement + involving terms and conditions of employment This is enacted to compare with RD. If there is a claim for reinstatement, LA has jurisdiction, not RD. Other civil cases + exceed P5,000 + regardless reinstatement This is enacted to compare with RD. If the aggregate monetary claims exceed P5,000, LA has jurisdiction, not RD. OFW What are the requisites for a foreign law to govern an OFW employment contract? (Choice of law) It is expressly stipulated that the specific foreign law shall govern The foreign law must be proven before the courts pursuant to Philippine rules on evidence The foreign law is not contrary to LMGPP of the Philippines The overseas employment contract must be processed through the POEA. (IPAMS v De Vera, 2016) How do we relate this to Saudia v Rebesencio, 2015, Leonen and Manila Hotel v NLRC, 2000? (Forum non conveniens) Saudia/Manila Hotel determine if the Philippines can exercise jurisdiction over the labor dispute, i.e., forum non conveniens (Civil law) IPAMS determines how can a foreign law govern an overseas employment contract in Philippine courts, i.e., choice of law of the parties (Civil law) Hence, there can be a scenario where the governing law for the dispute is USA law but the Philippines is the proper forum to hear the case. Application (Manila Hotel v NLRC, 2000) The employment contract. — Respondent Santos was hired directly by the Palace Hotel, a foreign employer, through correspondence sent to the Sultanate of Oman, where respondent Santos was then employed. He was hired without the intervention of the POEA or any authorized recruitment agency of the government. If he was hired with the intervention of POEA, the Philippines will assume jurisdiction, as shown in Saudia v Rebesencio, 2015, Leonen. 2. 3. 4. 1. 1. 2. 3. 4. 2. 1. 3. 1. 4. 1. 2. 3. 1. 4. including ULP and bargaining deadlocks. (Art. 275) Employment Incidental; Without reference to Labor Code - Not every controversy or money claim by an employee against the employer or vice- versa is within the exclusive jurisdiction of the labor arbiter. Actions between employees and employer where the employer-employee relationship is merely incidental and the main cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court. (Halagueña v PAL, 2009) Thus, where the principal relief sought is to be resolved not by reference to the Labor Code or other labor relations statute or a collective bargaining agreement but by the general civil law, the jurisdiction over the dispute belongs to the regular courts of justice and not to the labor arbiter and the NLRC.. (Halagueña v PAL, 2009) In the case, petitioners alleged that their CBA with PAL is unlawful and unconstitutional because it allegedly discriminates female flight attendants. Hence, the case is under the jurisdiction of regular courts, not the LA. Intra-corporate disputes Relationship test Between corporation and public; Between corporation and stockholders/members/officers Between corporation and State, for franchises/licenses Among stockholders themselves Nature of controversy test The dispute pertains to the rights and obligations of the parties under the Corporation Code/internal/intra-corporate regulatory rules of the corporation. (Cacho v Balagtas, 2018) The corporate officers are the president/secretary/treasurer/such other officers as may be provided in the BYLAWS. Hence, a position must be expressly mentioned in the by-laws to be considered a corporate officer. Thus, an office created pursuant to a “by-law enabling provision” is not a corporate office. (Matling Industrial v Ceros, 2010) As a result, the labor dispute shall be heard by the LA. Who has jurisdiction over dismissal of directors/corporate officers? It is an intra-corporate dispute which is cognizable by the RTC, not the LA. A corporate’s officer dismissal is always a corporate act. (Locsin v Nissan Lease Philippines, 2010) Jurisdiction of the Labor Arbiter as distinguished from the Regional Director Discussed below in Regional Director’s jurisdiction Requirements to perfect appeal to National Labor Relations Commission (Bond is also required for appeal to the RD in Art. 128, not Art. 129) 1. 2. 1. 2. 3. 4. 3. 4. 5. 6. 1. 1. 2. 1. 1. 2. 1. 1. 10 calendar days The appeal must be filed within 10 CALENDAR days from receipt of the decision. (Art. 229) It is not working days. Hence, if the last day falls on a Sunday, the losing party cannot file the appeal on the next day. (Vir-Jen Shipping v NLRC, 1982) Grounds The grounds relied upon are ANY of the following: Fraud - Decision is secured through Fraud, coercion, graft, or corruption Abuse - Prima facie evidence of Abuse of discretion Law - Purely question of law Fact - Serious errors in the findings of fact + if not corrected, would cause grave or irreparable damage. (Art. 229) Monetary award; Employer post BOND In case the appellant is the employer and the judgment involves a monetary award, the employer must post a BOND in the amount equivalent to the MONETARY AWARD in the judgment. (Art. 229) It can be cash, surety, or property bond. Verified It must be verified. Memorandum It shall be in the form of a memorandum of appeal 3 copies 3 copies of the memorandum (2011 NLRC Rules of Procedure) The employer may file a MOTION TO REDUCE THE BOND, provided: Meritorious - Meritorious grounds Bond Reasonable 10% - Accompanied by posting of a BOND in a reasonable amount, i.e., 10% of the monetary award This bond shall be provisionally deemed as the reasonable amount. The foregoing shall not unduly hinder the NLRC’s exercise of its discretion, since it is only provisional. Hence, the NLRC retains its authority and duty to resolve the motion and determine the final amount of bond. After posting the bond in the required percentage, i.e., 10%, the period to perfect an appeal is deemed suspended. If the NLRC orders that the appellant must pay an amount greater than 10%, he shall be given 10 days AFTER notice of the NLRC order to perfect the appeal by posting the required appeal bond. (McBurnie v Ganzon, 2013) Obviously, if the NLRC deems 10% as the reasonable 1. 5. 1. 2. 3. 1. 2. 1. 4. 1. 5. 1. 6. 1. 1. 2. 3. 7. 1. 2. 8. amount, the appeal is deemed perfected at the time of the order of the NLRC. Reinstatement and/or execution pending appeal The decision of the Labor Arbiter REINSTATING the dismissed employee, Insofar as the REINSTATEMENT ASPECT is concerned Shall be IMMEDIATELY executory pending appeal The employee shall be ADMITTED BACK to work, in the same terms and conditions prevailing before the dismissal; OR Be reinstated in the PAYROLL. The posting of bond by the employer shall NOT STAY the execution of the reinstatement aspect. (Art. 229) What about the decision of the NLRC/CA granting reinstatement? It is not immediately executory. Art. 229 only applies to the decision of the Labor Arbiter. What is the extent of the immediately executory decision? Only the reinstatement aspect is immediately executory. The monetary awards, such as backwages, are not. What is the remedy of the dismissed employee in case the employer refuses to reinstate him? If the employer refuses to reinstate the dismissed employee, the Labor Arbiter shall: Immediately issue a writ of execution, even pending appeal, Directing the employer to immediately reinstate him, and To pay the accrued salaries as a consequence of such reinstatement. (2011 NLRC Rules of Procedure) Are the salaries earned by the reinstated employee, during the period of reinstatement, recoverable in case the employer ultimately wins the suit before the NLRC/CA/SC? No. The reinstated employee has NO DUTY TO RETURN the salary he received, during the period of reinstatement. Otherwise, the situation would run counter to the immediately executory nature of an order of reinstatement. (Wenphil v Abing, 2014) The "refund doctrine" easily demonstrates how a favorable decision by the Labor Arbiter could harm, more than help, a dismissed employee. The employee, to make both ends meet, would necessarily have to use up the salaries received during the pendency of the appeal, only to end up having to refund the sum in case of a final unfavorable decision. It is mirage of a stop-gap leading the employee to a risky cliff of insolvency. (Garcia v PAL) Lastly, Art. 229 is an order of reinstatement which is immediately executory, pending appeal, while Art. 294 is an order of reinstatement pursuant to a final and executory judgment. Further, Art. 229 does not require an issuance of a writ of execution, while Art. 294 requires the 1. 1. 1. 1. 2. 1. 2. 3. 1. 2. 3. 1. 1. 2. 1. 2. Decisions of the Mediator-Arbiter (Labor Relations Division) can be appealed to the BLR Director within 10 days from receipt of notice. (Art. 243) _______________________________________________________________________________________ _______________________________________________________________________________________ _______________ F. National Conciliation and Mediation Board Jurisdiction ALL issues arising from labor and employment shall be subject to mandatory conciliation-mediation Exception: Any or both parties involved in the dispute may pre- terminate the conciliation-mediation proceedings and require referral or endorsement to the appropriate DOLE agency or office which has jurisdiction over the dispute, or if both parties so agree, refer the unresolved issues to voluntary arbitration. (Art. 228) Wage distortion issues in UNORGANIZED establishments Submit issue before the NCMB for conciliation after endeavors to correct have failed; If not fruitful within 10 days, refer to the NLRC for arbitration to be decided within 20 days from submission Nature of proceedings Non-litigious, non- adversarial, less expensive, and expeditious. Conciliation as distinguished from mediation Conciliation Mediation Both refer to a process where a third person called a Conciliator/Mediator intervenes in a dispute to reconcile differences of persuade them to adjust or settle their dispute. Both refer to a process where a third person called a Conciliator/Mediator intervenes in a dispute to reconcile differences of persuade them to adjust or settle their dispute. C-M facilitates disputants to keep things calm, delivers messages back and forth between the parties. (For talking only) C-M assists parties to voluntarily reach mutually acceptable settlement. (For settlement) Preventive mediation This refers to the potential labor dispute subject for conciliation and mediation assistance Sought by either or both parties; or Upon initiative of the NCMB to avoid the occurrence or actual labor dispute It may be sought by a party at any time he chooses to do so, and for any potential labor dispute The NCMB usually initiates preventive mediation, during the cooling-off period, after the filing of notice to strike/lockout. 2. 1. 2. 3. 3. 1. 1. 4. 1. 2. 3. 5. 1. 2. 3. 6. 1. 1. 2. 3. 4. 1. 2. 1. Who may file a request for preventive mediation, notice of strike or lockout? The president or any authorized representative of a SEBA in cases of bargaining deadlocks and ULPs In the absence of a SEBA, the president or any authorized representative of a LLO in cases of ULPs The employer or any authorized representative in cases of bargaining deadlocks and ULPs. Where to file? A request for preventive mediation, or a notice to strike/lockout shall be filed with the Regional Branch of NCMB having jurisdiction over the workplace of the union members For notice to strike/lockout, the cooling-off period, if any, shall be observed. Initial action of the Conciliator-Mediator He shall properly identify and validate the real issues raised in the notice. Further, he shall ascertain with the parties the specific acts of ULP which were alleged to have been committed. Lastly, he shall exert all efforts to enable the parties to settle the dispute amicably. Action on Strikeable Issues Marathon conciliation conference/s to settle the dispute - During cooling-off period Advise the parties to use other voluntary modes of dispute settlement. Determination as to whether there is gross violation of CBA is lodged in another forum, i.e., Labor Arbiter. Action on Non-Strikeable Issues Conciliator-mediator shall earnestly convince the party concerned to treat the notice of strike as preventive mediation or voluntarily withdraw the notice without prejudice to further conciliation in instances where the notice is anchored on ANY of the following grounds: Inter-union or intra-union dispute (not with the employer) Issues already bought to voluntary or compulsory arbitration Mere violation of the CBA involving political provisions (not economic; not ULP); or Labor standard violations. These are instances of NON-strikeable issues. Conversion of Notice Strike/Lockout to Preventive Mediation In converting a notice of strike/lockout to a preventive mediation case, the following guidelines shall be observed: 1. 2. 3. 4. 5. 6. 7. 8. 3. 1. 2. 3. 4. 1. 1. 1. 2. Clearly determine whether the issue/s raised is/are valid ground/s for Notice to Strike/Lockout If conversion is warranted, a written recommendation from the Conciliator-Mediator handling the case is required, after due consultation with the Branch Director; The written recommendation must be formally endorsed to the Branch Director for approval; The conversion shall be done before the cooling-off period expires; Parties concerned must be formally notified of the action taken by the Regional Branch through a later signed by the Conciliator-Mediator handling the case and approved by the Branch Director; The notice shall be dropped from the dockets and to be renumbered as a preventive mediation case; and A conference shall be immediately set by the concerned Conciliator-Mediator. In cases where unresolved grievances are raised, the same shall be processed in accordance with section 6 of this Rule. (2017 Revised NCMB Manual for Conciliation and Preventive Mediation Cases) When may a notice to strike/lockout be converted into a preventive mediation case? Non-strikeable issues - in case the subject of the strike is non- strikeable, the NCMB can motu proprio convert the notice into preventive mediation. Voluntary - The party who filed the notice voluntarily asks for conversion Mutually agree - when both parties to a labor dispute mutually agree to have it subjected to preventive mediation proceeding. (NCMB Primer on Strikes, Picketing, and Lockouts SENA The Single-Entry Approach (SENA) is a prescribed 30-day Mandatory Conciliation- Mediation Services to be made operational through the Single Entry Approach Desk (SEAD) of NCMB/NLRC. It shall be applicable to ALL cases falling under the administrative and quasi-judicial functions of all DOLE offices and attached agencies including the NLRC Except: notices of strikes or lock-outs (mediated through the NCMB) preventive mediation cases 1. 2. 3. 4. 5. 2. 1. 2. 1. 2. 3. 1. 4. Any decision of the RD pursuant to this provision May be appealed On the same grounds in Art. 229 Within 5 calendar days from receipt of decision To the NLRC Visitorial and enforcement power; Discussion (Art. 128) This is a broad power. The Secretary/RD/labor officer can issue compliance orders for ANY violation of labor law As long as the employer-employee relationship exists, i.e., the worker has not been dismissed from the job. A mere assertion of absence of employer-employee relationship does not deprive the DOLE of jurisdiction over the claim under Article 128 of the Labor Code.  At least a prima facie showing of such absence of relationship is needed to preclude the DOLE from the exercise of its power under Article 128. (People’s Broadcasting v Secretary of Labor, 2009) Recovery and adjudicatory power; Discussion (Art. 129) See the tables below Comparison of Art. 128 and Art. 129 Art. 128 (Enforcement) Art. 129 (Adjudicatory) Who has the authority Secretary/RD/other labor officers Regional Director Nature of authority Visitorial and Enforcement Adjudicatory Power given 1. Issue compliance orders to give effect to labor standards provisions(violations of the Labor law); 2. Issue writ of execution for the enforcement of the compliance order Decide cases involving recovery of wage/ monetary claims/ benefits/including legal interest Qualifiers 1. In cases where employer-employee relationship still exists; 2. Cannot issue the writ of execution if the employer contests the findings AND raises issues supported by documentary proofs that were not considered in the inspection. 1. The claim must arise from employer- employee relations 2. NO claim for damages 3. NOT include claim for reinstatement 4. The aggregate money claims must NOT exceed P5,000 Appeal 1. The order must be appealed to the DOLE Secretary 2. If it includes a monetary award, the appeal of the employer is only perfected upon posting a bond equivalent to the monetary award 3. Within 10 calendar days from receipt of decision 1. The decision of the RD must be appealed to the NLRC 2. Based on the same grounds provided in Art. 229 3. No need to post a bond (because the claim is so small) 4. Within 5 calendar days from receipt of decision Bond In cases involving monetary award, the employer may perfect the appeal by posting a bond equivalent to the monetary award. The law is silent. That means it is not required, since the amount claimed is small. Co-exist They co-exist. The RD can use either provisions because Art. 128 states “notwithstanding the provisions or Art. 129 and Art. 224 To the contrary.” 5. Art. 128 (Enforcement) Art. 129 (Adjudicatory) Who has the authority Secretary/RD/other labor officers Regional Director Nature of authority Visitorial and Enforcement Adjudicatory Power given 1. Issue compliance orders to give effect to labor standards provisions(violations of the Labor law); 2. Issue writ of execution for the enforcement of the compliance order Decide cases involving recovery of wage/ monetary claims/ benefits/including legal interest Qualifiers 1. In cases where employer-employee relationship still exists; 2. Cannot issue the writ of execution if the employer contests the findings AND raises issues supported by documentary proofs that were not considered in the inspection. 1. The claim must arise from employer- employee relations 2. NO claim for damages 3. NOT include claim for reinstatement 4. The aggregate money claims must NOT exceed P5,000 Appeal 1. The order must be appealed to the DOLE Secretary 2. If it includes a monetary award, the appeal of the employer is only perfected upon posting a bond equivalent to the monetary award 3. Within 10 calendar days from receipt of decision 1. The decision of the RD must be appealed to the NLRC 2. Based on the same grounds provided in Art. 229 3. No need to post a bond (because the claim is so small) 4. Within 5 calendar days from receipt of decision Bond In cases involving monetary award, the employer may perfect the appeal by posting a bond equivalent to the monetary award. The law is silent. That means it is not required, since the amount claimed is small. Co-exist They co-exist. The RD can use either provisions because Art. 128 states “notwithstanding the provisions or Art. 129 and Art. 224 To the contrary.” Comparison of Art. 129 and Art. 224 Art. 129 - RD (Adjudicatory) Art. 224 - LA (Adjudicatory) Who has the authority Regional Director Labor Arbiter Nature of authority Adjudicatory Adjudicatory Power given Decide cases involving recovery of wage/ monetary claims/ benefits/including legal interest Basically, whatever the RD cannot adjudicate, the LA can adjudicate, i.e., reinstatement/ damages/exceed P5,000 Qualifiers 1. The claim must arise from employer- employee relations 2. NO claim for damages 3. NOT include claim for reinstatement 4. The aggregate money claims must NOT exceed P5,000 1. If no claim for reinstatement, the aggregate money claims must exceed P5,000 2. If the aggregate money claims do not exceed P5,000, there must be claim for reinstatement 3. Except claims for Employees Compensation, Social Security, PhilHealth, and maternity benefits Appeal 1. The decision of the RD must be appealed to the NLRC 2. Based on the same grounds provided in Art. 229 3. Within 5 calendar days from receipt of decision 1. The decision of the LA must be appealed to the NLRC 2. Based on the grounds provided in Art. 229 3. Within 10 calendar days from receipt of decision Bond Bond is not required since the claim is so small. In cases involving monetary award, the employer may perfect the appeal by posting a bond equivalent to the monetary award. 6. Art. 129 - RD (Adjudicatory) Art. 224 - LA (Adjudicatory) Who has the authority Regional Director Labor Arbiter Nature of authority Adjudicatory Adjudicatory Power given Decide cases involving recovery of wage/ monetary claims/ benefits/including legal interest Basically, whatever the RD cannot adjudicate, the LA can adjudicate, i.e., reinstatement/ damages/exceed P5,000 Qualifiers 1. The claim must arise from employer- employee relations 2. NO claim for damages 3. NOT include claim for reinstatement 4. The aggregate money claims must NOT exceed P5,000 1. If no claim for reinstatement, the aggregate money claims must exceed P5,000 2. If the aggregate money claims do not exceed P5,000, there must be claim for reinstatement 3. Except claims for Employees Compensation, Social Security, PhilHealth, and maternity benefits Appeal 1. The decision of the RD must be appealed to the NLRC 2. Based on the same grounds provided in Art. 229 3. Within 5 calendar days from receipt of decision 1. The decision of the LA must be appealed to the NLRC 2. Based on the grounds provided in Art. 229 3. Within 10 calendar days from receipt of decision Bond Bond is not required since the claim is so small. In cases involving monetary award, the employer may perfect the appeal by posting a bond equivalent to the monetary award. Comparison of Art. 128, Art. 129, and Art. 224 128 129 224 Subject matter The subject matter can be anything under the Labor Code/ legislation The subject matter must be recovery of wages/monetary claims/benefits arising from employer- employee relations Termination/ Damages/ Reinstatement with recovery of wages/Claims exceeding P5,000/ULP/ Violation of 264 + OFW/Wage distortion in unorganized/ Employer contests under Art. 128/Enforce compromise agreement Existence of employer- employee relationship If the employer- employee relationship does not exist, this does not apply. No need No need Reinstatement accompanied It can accompany reinstatement If the claim is accompanied by reinstatement, this does not apply. It can accompany reinstatement P5,000 limit It can exceed P5,000 The aggregate claim cannot exceed P5,000 It can exceed P5,000 Contest findings by the employer If the employer contests the findings of the officer + raises issues supported by documents which were not considered in the course of inspection, this does not apply. No need No need Bond requirement to perfect appeal In cases involving monetary award, the employer may perfect the appeal by posting a bond equivalent to the monetary award. No need since the claim is so small. In cases involving monetary award, the employer may perfect the appeal by posting a bond equivalent to the monetary award. Appeal period and Appellate body Within 10 calendar days to the Secretary of DOLE Within 5 calendar days to the NLRC, since the claim is so small Within 10 calendar days to the NLRC 1. 3. 2. 1. 1. 3. 1. 1. 1. 2. 4. 1. 1. 1. 1. 1. 2. 2. 1. 3. 1. 2. can be appealed to DOLE Secretary. POEA orders in the exercise of administrative function. Visitorial and enforcement powers (Art. 37/128/289) In Art. 128, The decision of the RD can be appealed to the DOLE Secretary. To compare with Art. 129, it can be appealed to the NLRC. Power to suspend effects of termination The DOLE may suspend the effects of termination pending resolution of the dispute in the event of A prima facie finding by the appropriate official of the DOLE before whom the dispute is pending that The termination may cause serious labor dispute The termination is in implementation of a mass lay-off. (Art. 292(b)) Remedies What is the mode of reviewing the decision of the DOLE Secretary? The Labor Code and its implementing rules do not provide for any mode for reviewing the decision of the Secretary of Labor. However, the Court ruled that the proper remedy is Rule 65, and which should be filed with the Court of Appeals, in observance of the doctrine of hierarchy of courts. CA is the “appropriate court” contemplated by the IRR of the Labor Code. (National Federation of Labor v Laguesma, 1999) _______________________________________________________________________________________ _______________________________________________________________________________________ _______________ I. Voluntary Arbitrators Jurisdiction Grievance in organized establishments. (Art. 274) To recall, grievance is a complaint arising from the interpretation or implementation of the CBA/company rules/regulations/personnel policies/established practices/productivity incentive. (Art. 274) Violations of the CBA not gross in character is also a grievance. If the issue is not settled with the grievance machinery, the grievance will be resolved by the Voluntary Arbitrator. Any labor dispute, including ULP and bargaining deadlock, upon Agreement of the parties. (Art. 275) If no agreement, the Labor Arbiter, usually, has jurisdiction over the subject matter. Wage distortion issues arising from the application of wage order in organized establishments. (Art. 124) If the issue is not settled with the grievance machinery. Remedies 1. 2. 1. 1. 1. 1. 1. 2. 3. 2. 2. 1. The decision of the voluntary arbitrator shall be appealable to the CA, as provided under Rule 43. (Samahan ng mga Manggagawa sa Hyatt v Magsalin, 2011) The period to appeal the decision of the Voluntary Arbitrator is 15 days. The 10-day period stated in Art. 276 should be understood as the period where the adverse party may file a motion for reconsideration. Only after the resolution of the motion for reconsideration may the aggrieved party appeal to the CA under Rule 43. (Guagua National Colleges v CA, 2018) _______________________________________________________________________________________ _______________________________________________________________________________________ _______________ J. Prescription of Actions Money claims All money claims arising from employer-employee relations shall be filed within 3 years from the time the cause of action accrues. Otherwise, the claims shall be forever barred. (Art. 291) When may the period of prescription be disregarded? In cases of promissory estoppel. It has the following elements: (promise; inducement; suffered detriment) a promise was reasonably expected to induce action or forbearance; such promise did, in fact, induce such action or forbearance; and the party suffered detriment as a result. All the requisites of promissory estoppel are present in this case. Jones relied on the promise of ASI that he would be paid as soon as the claims of all the rank-and-file employees had been paid. If not for this promise that he had held on to until the time of his death, we see no reason why he would delay filing the complaint before the LA. Thus, we find ample justification not to follow the prescriptive period imposed under Article 291 of the Labor Code. Great injustice will be committed if we will brush aside the employee’s claims on a mere technicality, especially when it was petitioner’s own action that prevented respondent from interposing the claims within the required period. (Accessories Specialist v Alabanza, 2008) For service incentive leave, the 3-year period commences, not at the end of the year the employee becomes entitled, but from the time the employer REFUSES to pay its monetary equivalent upon demand. (Auto Bus Transport v Bautista, 2005) Why? The cause of action accrues when there is an act that violates the rights of another. Here, the right to the SIL is only 1. 2. 1. 2. 1. 3. 1. 2. 3. 4. 1. 2. 3. 4. 1. 1. 5. 1. 2. violated at the time of refusal. Hence, such is the moment when the cause of a action accrued. Illegal dismissal, and the money claims resulting therefrom; Action upon INJURY TO THE RIGHTS of the plaintiff The Labor Code does NOT cover money claims/damages consequent/ resulting from ILLEGAL DISMISSAL. These claims are governed by Art. 1146, wherein actions upon injury to the rights of the plaintiff must be instituted within 4 years. (Protective Maximum Security Agency v Fuentes, 2015, Leonen) Why? Because the main action is illegal dismissal and NOT money claims. Since the Labor Code is silent as to the prescriptive period of illegal dismissal, Art. 1146 of the Civil Code shall apply, i.e., 4 years from accrual of cause of action. Unfair labor practice ALL ULP cases shall be filed with Labor Arbiter within 1 year from accrual of such ULP. Otherwise, they shall forever be barred. (Art. 305) To recall, no criminal prosecution may be instituted without a final judgment, finding that a ULP was committed, having been FIRST OBTAINED in the administrative proceedings. During the pendency of the administrative proceeding, the running of the period prescription of the criminal offense shall be INTERRUPTED. The final judgment in the administrative proceedings shall: NOT be binding in the criminal case NOT be considered as evidence of guilt But merely as proof compliance with the requirements set forth. (Art. 258) Offenses under the Labor Code Offenses penalized under this Code shall prescribe in 3 years. (Art. 305) This includes prohibited activities committed during strikers/lockouts. Illegal recruitment Simple illegal recruitment cases - the prescriptive period is 5 years. Illegal recruitment involving economic sabotage, i.e., syndicate/large scale - the prescriptive period is 20 years. (RA 8042, Sec. 12)