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M E M O R A N D U MTO: JUSTICE PHILIP JOHN POJASFROM:PETE BAYANI CAMPOREDONDODATE: February 6, 2015RE:PETITION FOR DISBARMENT OF ROBERT NESTA MARLEY and JOHN LENNON, A.M. No. 420

THE PARTIESComplainant Activist Union is a Labor Union duly registered under the laws of the Republic of the Philippines, representing rank-and-file members of FCY Company.Respondent Robert Nesta Marley, Attorney at Law, is the counsel for FCY Company.Respondent John Lennon, Attorney at Law, is the counsel for Federation XYZ.

STATEMENT OF THE CASEThe following facts are undisputed:

The FCY Company concluded a collective bargaining agreement with Federation XYZ, the exclusive bargaining representative of its rank-and-file employees. The CBA was to expire on April 30, 2006.

The FCY found its bargaining relationship with Federation XYZ as an amicable one since most of the CBA interpretation issues and employee termination cases that arose during its term where resolved to the parties' mutual satisfaction.

However, 60 days before the expiration of the CBA on April 30, 2006, FCY Company received a notice from the local union president informing it that the employees have disaffiliated from Federation XYZ and asking FCY Company to refrain from negotiating a collective bargaining agreement with it.

The local union president told FCY Company that the employees would be negotiating with the Activists Union as their new collective bargaining representative.

FCY Company entertained some doubts as to the validity of the disaffiliation because it received reports that some employees were coerced into supporting the Federation XYZ.

On account of its preference for Federation XYZ, FCY Company instructed its retained counsel, Robert Nesta Marley to question the validity of the employees' disaffiliation from Federation XYZ and their affiliation with the Activist Union. FCY Company's counsel turned out to be a good friend of the in-house counsel of Federation XYZ, John Lennon, who in his turn sought to nullify the disaffiliation of the employees and their affiliation with the Activist Union on the ground that it was a violation of the no-union raiding agreement among labor federations in the Philippines.

The Regional Office rejected the argument and directed the conduct of a certification election among the employees within the bargaining unit. Upon the instruction of FCYs company's counsel, Robert Nesta Marley, the supervisors of the rank-and-file workers exerted their influence over the rank-and-file employees and convinced them to vote for Federation XYZ, which narrowly won the election with a margin of only 10 votes over the Activist Union.

Bargaining negotiations commenced between FCY Company and Federation XYZ. In no time at all, a collective bargaining agreement was concluded which granted an increase of 10% over the wages and benefits granted under the previous collective bargaining agreement. The employees who voted for Activist Union also voted against the ratification of the collective bargaining agreement by an account of the influence exerted by the supervisors --acting with the discrete guidance of FCYs company's counsel (Robert Nesta Marley ) - the CBA was ratified by slightly more than half of the employees within the collective bargaining unit.

Unable to accept their defeat, the members of the Activist Union filed an administrative complaint with the Supreme Court against FCY's Company counsel Robert Nesta Marley and Federation XYZ's counsel John Lennon, asking that sanctions be imposed on them for colluding with each other to frustrate the free choice by the employees of a bargaining representative in their negotiations with their employer.ISSUES OF THE CASE

1. WHETHER OR NOT, BY THE CONTENTION OF RESPONDENT JOHN LENNON, THE DISAFFILIATION OF THE LOCAL UNION FROM FEDERATION XYZ WAS VALID NOTWITHSTANDING THE NO-UNION RAIDING AGREEMENT AMONG LABOR FEDERATIONS IN THE PHILIPPINES; and 2. WHETHER OR NOT THE ACTS OF RESPONDENTS CONSTITUTE UNFAIR LABOR PRACTICE CONTRARY TO THE LAWS OF THE REPUBLIC OF THE PHILIPPINES, THE LABOR CODE AND THE CODE OF PROFESSIONAL RESPONSIBILITY

DISCUSSION

AS TO THE FIRST ISSUE:

The right of a local union to disaffiliate from its mother union is well-settled. It has been repeatedly held that 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 is consistent with the constitutional guarantee of freedom of association.[footnoteRef:1] This right of freedom of association necessarily includes the freedom not to associate with any labor organizations or to disaffiliate therefrom. When the local union withdrew from the federation, it was merely exercising its primary right to self-organization for the effective enhancement and protection of common interests. [1: Volkschel Labor Union vs. Bureau of Labor Relations, G.R. No. L-45824, June 19, 1985]

Furthermore, such disaffiliation, notwithstanding the No Union Raiding agreement among federations, was valid. In a similar case involving a No Union Raiding agreement embodied in the Code of Ethics of a federal union, the Supreme Court denied the opposition of the federal union on the petition for certification election and held, viz.:

The Code of Ethics being invoked by TUPAS is internal to the Labor Advisory and Consultative Council (LACC). In other words, it behooves on the signatories to the Code to comply and respect its provisions. This Office, therefore, can only take cognizance of the Code and recognize its provisions if the parties thereto fully and mutually respect the same. Otherwise, we are left with no other recourse but to dispose of the instant case on the basis of existing and applicable laws and rules.

Ultimately, the Labor Code allows another union to question the majority status of the incumbent bargaining agent within the sixty-day freedom period. This is embodied in Article 256 of the Labor code, as amended by RA 6715, to wit:

"Art. 256. Representation issue in organized establishments. In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of a collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five per cent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit."

In order that the No Union Raiding agreement may be enforced, party-signatories thereto must fully and mutually respect the same, otherwise, Article 256 of the Labor Code shall apply. Thus, Federation XYZs counsel Respondent John Lennon, may not successfully seek to nullify the disaffiliation of the employees and their affiliation with the Activist Union on the ground that it was a violation of the No Union Raiding agreement among labor federations in the Philippines as it is within their constitutional right of freedom of association to choose who among the labor unions may best serve their interests and to disaffiliate from those found unable to protect their common interest.

AS TO THE SECOND ISSUE:

The act of FCY Companys lawyer, Respondent Robert Nesta Marley, in instructing supervisors of the rank-and-file workers to exert their influence said employees and convincing them to vote for Federation XYZ resulting in the election of the latter as exclusive bargaining representative for the rank-and-file employees is an act interference in the exercise of their right to self-determination constituting unfair labor practice as defined by Article 248, to wit:

"Art. 248. UNFAIR LABOR PRACTICES OF EMPLOYER.It shall be unlawful for an employee to commit any of the following unfair labor practices:a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;b) x x x x

Such interference resulted in the election of Federation XYZ as exclusive bargaining representative for the rank-and-file employees which does not manifest the true will of the employees. A glaring violation of their right of association as embodied in the Constitution and by the Labor Code, to wit:

Article 246. Non-abridgment of right to self-organization. It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Article 264 of this Code. (As amended by Batas Pambansa Bilang 70, May 1, 1980).

The interference of Respondent Robert Nesta Marley is not merely proscribed by the Labor Code, he may also be subject of criminal prosecution.[footnoteRef:2] It also run against the Code of Professional Responsibility to which he, as a lawyer, took oath to uphold. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.[footnoteRef:3] He shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes. His act of coercing and interfering with the election of the employees exclusive bargaining agent is malicious and unbecoming of an officer of the court. Since lawyers are administrators of justice, oathbound servants of society, their first duty is not to their clients, as many believe, but to the administration of justice; to do this, their clients success is wholly subordinate; and their conduct ought to and must be scrupulously observant of the law and ethics.[footnoteRef:4] [2: Revised Penal Code. Art. 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats. The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provisions of this Code.] [3: Rule 1.01, Canon 1, Code of Professional Responsibility] [4: In re Kelly, 243 F. 696, 705]

The lawyers duty is also to promote and enhance the policies of the State. One of which is the protection of labor and rights pertaining thereto. It is the duty of counsel to promote and enhance instead of defeat and frustrate the objectives and policies of the society in which he lives.

CONCLUSION

It is clearly established that the acts of herein respondents amounted to violations or frustrations of the employees right to association. But as to degree of culpability, both respondents are not of equal footing as the facts of this case are bereft of evidence of collusion between respondents. The alleged collusion between respondents cannot be inferred for being close friends.Respondent John Lennons act of seeking to nullify the disaffiliation of the employees and their affiliation with the Activist Union on the ground that it was a violation of the No Union Raiding agreement among labor federations in the Philippines is tantamount only to gross ignorance of the law, reflecting on his incompetence.Respondent Robert Nesta Marley on the other hand committed grave violations of the employees right to association, contrary to the Constitution, the Labor Code and the Code of Professional Responsibility for interfering and frustrating the employees will in selecting their exclusive bargaining agent to champion and protect their common interests. Hence he should be meted out with a more grave disciplinary action.

RECOMMENDATION:WHEREFORE, premises considered, it is highly recommended that this Honorable Supreme Court impose disciplinary actions against respondents in the following manner:1. Reprimanding Respondent John Lennon for his gross ignorance of the law reflecting in his incompetence and a stern warning that t any well-grounded complaint in the future against him upon similar grounds will merit a stiffer penalty; and2. Ordering the disbarment of Respondent Robert Nesta Marley for his acts which run contrary to law and the Code of Professional Responsibility for interfering and frustrating the employees will in selecting their exclusive bargaining agent.

Prepared by:

PETE BAYANI CAMPOREDONDO