part b cases- on collective bargaining

7/27/2019 Part b Cases- On Collective Bargaining

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COLLECTIVE BARGAINING AND ADMINISTRATION OF

AGREEMENT (DIGEST ON PART B CASES ONLY)

II. TITLE VII- ARTICLES 253 TO 254, LABOR CODE, IRR

DEFINITION OF TERMS/CONCEPTS:

INTRODUCTIONWhy do you suppose collective bargaining is mandated by theConstitution?Why is it so important as to ensure that workers becollectively given a chance to participate in the policy and decision-making processes, especially when it affects the terms and conditions of

their work?As a worker or an employee, the most ideal situation which could be envisioned

is that he will be able to dictate the terms and conditions of his work, even

including how much he will be paid, the manner and method by which he will

work, and such other terms and conditions. But that is not usually the case. In

practical terms, the terms and conditions of employment are usually dictated

upon by the employer at the time of the hiring of the employee. In a sense, thecontract of employment (if ever there is one) is in the nature of a contract of

adhesion, e.g., there is already a printed form enumerating the terms and

conditions of employment and the employee takes it or leaves it. From the time

of hiring, you can already note the inherent inequality between management and

labor. Thus, in cognizance of this inherent inequality in industrial relations, the

State has provided constitutional guarantees to correct the same.

1. Constitutional and statutory basis;

concept and rationale of collective bargainingConsti., Art. 13, sec. 3. The State shall afford full protection to

labor, local and overseas, organized and unorganized, and promote fullemployment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-

organization, collective bargaining and negotiations, andpeaceful concerted activities, including the right to strike inaccordance with law. They shall be entitled to security oftenure, humane conditions of work, and a living wage. They

shall also participate in policy and decision-making processes

affecting their rights and benefits as may be provided by law.The State shall promote the principle of shared responsibility

between workers and employers, and the preferential use of voluntary

modes in settling disputes, including conciliation, and shall enforce theirmutual compliance therewith to foster industrial peace. The State shall regulate the relations between theworkers and employers, recognizing the right of labor to its just

share in the fruits of production, and the right of entrepreneursto reasonable returns on investments, and to expansion and

growth.

Art. 211 (a), Labor Code cf. Art. 255, LC Art. 211. Declaration of policy. -- It is the policy of theState: (a) to promote and emphasize the primacy of free collectivebargaining and negotiations, as modes of settling labor or industrialdispute.

Art. 255. Exclusive bargaining representation andworkers participation in policy and decision-making. -- The labororganization designated orselected by a majority of the employees in anappropriate bargaining unit shall be the exclusive representative of theemployees in such unit for the purpose of collective bargaining.However, an individual employee or a group of employees shall have theright at any time to present grievances to their employer.

Any provision of the law to the contrary notwithstanding,

workers shall have the right, subject to such rules and regulations asthe Secretary of Labor and Employment may promulgate, theparticipate in policy and decision-making processes of the establishmentwhere they are employed insofar as said processes will directly affecttheir rights, benefits and welfare. For this purpose, workers andemployers may form labor-management councils: Provided, that therepresentatives of the workers in such labor-management councils shallbe elected by at least the majority of all employees in saidestablishment.

Kiok Loy vs. NLRC, 141 SCRA 179 (1986)Collective bargaining which is defined as negotiations

towards a collective agreement, is one of the democraticframeworks under the New Labor Code, designed to stabilize the relationbetween labor and management, and to create a climate of sound and

stable industrial peace. It is a mutual resonsibility of the employer andthe union, and is characterized as a legal obligation. So much so thatArt. 249 (g) of the Labor Code makes it a ULP for the employer to reufseto meet and convene promptly and expeditiously in good faith for thepurpose of negotiating an agreement with respect to wages, hours ofwork and all other terms and conditions of employment, includingproposals for adjusting any grievance or question arising under such an


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Note 1. When there is a collective bargaining agreement,the duty to bargain collectively shall also mean thatneither party shall terminate or modify suchagreement during its lifetime.

However, either party can serve a written notice toterminate or modify the agreement at least 60 days priorto the expiration day.

It shall be the duty of each party to keep the statusquo and to continue in full force and effect the termsand conditions of the existing CBA during the 60-dayperiod, and/or until a new agreement is reached bythe parties.

Note 2: As regards CBA about to expire, the law providesfor an AUTOMATIC RENEWAL CLAUSE, e.g., that theterms and conditions of the existing CBA shall continue tobe in full force and effect during the sixty-day freedomperiod (Union of Filipro Ees. vs. NLRC, 192 SCRA 414),or until a new CBA is reached. Thus, depiste the lapse ofthe effectivity of the old CBA, the law considers the sameas continuing in full force and effect until a new CBA isexecuted. (Lopez Sugar vs. FFW, 30 Aug. 1990)Note 3: In both instances however, the duty to bargain

collectively is therefore an obligation of both the employerand the employees/union.

3.3 Effect of refusal to bargain - constitutes ULP under Art.

248 (g)Art. 248 (g), Labor Code. Unfair labor practices ofemployers. -- To violate the duty to bargain collectively asprescribed by this Code.If the employer is guilty of violating the duty to bargaincollectively in good faith, the employer may be held guilty ofULP under Art. 258 (g). Furthermore, the unions draft CBAproposals may unilaterally be imposed upon the employer asthe collective bargaining agreement to govern theirrelationship. Hence, the case of Divine Word.Divine Word Univ. vs. NLRC, 213 SCRA 759

Petitioners contention that the Unions proposal may not beunilaterally imposed on it on the ground that a CBA is acontract where in the consent of both parties is indispensable,is devoid of merit.A similar argument has already been disregarded in the case ofKIOK LOY, where the SC upheld the order of the NLRCdeclaring the unions draft CBA proposal as the collectiveagreement which should govern the relationship between the

parties. That case is applicable because of the similarities: (a)the union made a definite request to bargain and submitted itsbargaining proposals; (b) the University made no counter-proposal whatsoever.As stated in Kiok Loy, a companys refusal to make counterproposals, if considered in relation to the entirebargaining process, may indicate bad faith, and this is

especially true where the Unions request for thecounter-proposal is left unanswered. While it is notobligatory for either party to precipitately accept or agree tothe proposals of the other, an erring party should not betolerated and allowed with impunity to resort to schemesfeigning negotiations by going through empty gestures.Hence, Divine Word may not validly assert that its consentshould be a primordial consideration in the bargaining process.By its acts, no less that its inaction which bespeck of its

sincerity, it has forfeited whatever rights it could haveasserted as an employer.

3.4 When duty to bargain ceases1. Upon actual loss of majority status of the bargaining

representative without fault of the employer; or

2. Where a representation question or dispute has arisen inthe unit

B. COLLECTIVE BARGAINING NEGOTIATIONSA PRACTICAL GUIDE IN HANDLING CBA NEGOTIATIONS

As had been intimated earlier, the constitutional guarantee of the workersright to collective bargaining is an implicit cognizance of the inherentinequality in the economic relationship between labor and management.Management controls and owns the capital, the disposition and direction ofwhich is entirely within management prerogatives, in its quest for PROFITS.On the other hand, the workers are economically dependent upon capital,and hence, the weaker of the two. Note however that despite this, there isno gainsaying the fact that without the workers efforts, profits could not behad. Thus, it is but just that they should be given their equitable share inthe profits.In the context of a depressed economy such as ours, and the lack of

employment opportunities, employer-employee relationships may thus besubject to abuses by management. Hence, the State regulates therelationship through the promulgation and implementation of laws which areintended to protect the interests of labor. One such right is thus collectivebargaining.1. Submission of Proposals

As intimated earlier, collective bargaining allows for a means toward theideal laissez faire condition, where the employees stand on a more or


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3.9 RecessRecess during negotiations shall be allowed upon request of eitherpanel.

3.10 Venue, frequency and time of meetings

Usually better to set it at a particular day and time, e.g., every Friday at 10:00a.m. Note that for union members, this is considered time-in.

The time frame per each meeting may be extended by mutual

consent of both parties, should the same be deemed necessaryunder the circumstances.

4. What are Bargainable Issues - Art. 252, LCArt. 252, Labor Code. Meaning of duty to bargain collectively. -- Theduty to bargain collectively means the performance of a mutualobligation to meet and convene promptly and expeditiously in good faithfor the purpose of negotiating an agreement with respect to thewages, hours of work and all other terms and conditions ofemployment including proposals for adjusting any grievances orquestions arising under such agreement and executing a

contract incorporating such agreements if requested by eitherparty, but such duty does not compel any party to agree to a proposalor to make any concession.4.1 Mandatory Subjects

a. As regards minimum standards provided by the LaborCode and effect of substandard contract

Phil. Am. Mgmt. vs. Phil. Am. Ees. Assn., 51 SCRA 98(1971)

There is an area placed beyond the sphere of bargainingbetween the parties. Included therein is the question ofminimum wages. It is understandable why it is so. Forlegislation of that character proceeds from the premise

that THERE IS A FLOOR BELOW WHICH THE AMOUNTPAID LABOR SHOULD NOT FALL. That is to assrue decentliving conditions. Such an enactment is compoulsory in nature;not even the consent of the employees themselves suffices todefeat its operation. MORE PLAINLY PUT, THE QUESTIONOF MINIMUM WAGES IS NOT NEGOTIABLE. What the lawdecrees must be obeyed. It is as simple as that.

NOTE: By entering into a sub-minimum contract, therearises a cause of action on the part of the affectedemployees to

DECERTIFY the Union (Article 239, LC).

Nestle Phils. vs. NLRC, 193 SCRA 504 (1991)The companys contention that the retirement plan being non-contributory and hence, non-negotiable, is not well-taken. TheNLRC correctly observed that the inclusion of the retirementplan in the CBA as part of the package of economic benefits

extended by the company to its employees to provide them ameasure of financial security after they shall have ceased to beemployed in the company, reward their loyalty, boost theirmorale and efficiency, and promote industrial peace, gives aconsensual character to the plan so that it may not beterminated or modified at will by either party.The fact that the retirement plan is non-contributory (i.e. that

the employees do not contribute anything to the operation ofthe plan) does not make it a non-issue in CBA negotiations. Asa matter of fact, almost all of the benefits which the companyhas granted to its employees are non-contributory, such assalary increases, rice allowances, mid-year bonuses, 13th and14th month pay, seniority pay, medical and hospitalizationplans, health and dental services, vacation, sick and otherleaves with pay, are non-contributory.

b. Grievance procedure and voluntary arbitrationThe grievance machinery as provided in the CBA

usually defines the following: (a) composition of the panel;(b) procedure at plant level; and (c) what is to be consideredas a grievance. If the definition includes ULP as subject tothe grievance procedure, a strike in violation of its terms willbe illegal.

PROCEDURE UNDER THE LAW AFTER GRIEVANCEMACHINERY PLANT LEVEL:Under the Labor Code, all grievances submitted to thegrievance machinery which are not settled within 7 calendardays from the date of its submission shall automatically bereferred to voluntary arbitration prescribed in the CBA (Art.260, LC).For this purpose, parties to a CBA shall name and designatein advance a Voluntary Arbitrator or panel of VoluntaryArbitrators, or include in the agreement a procedure for theselection of such VA or panel of VAs, preferably from a listingof qualified VAs duly accredited by the Board.The VA or panel of VAs shall have original and exclusivejurisdiction to hear and decide all unresolved grievancesarising from the jurisdiction to hear and decide all unresolved

grievances arising from the interpretation or implementationof the CBA and those arising from the interpretation orenforcement of company personnel policies. Violations of aCBA, except those which are gross in character, shallno longer be treated as unfair labor practice and shallbe resolved as grievances under the CBA. Grossviolations of the CBA shall mean flagrant and/or


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malicious refusal to comply with the economicprovisions of the agreement (Art. 260, LC).The Commission, its Regional Offices and the RegionalDirectors of the Department of Labor & Employment shall notentertain disputes, grievances or matters under the exclusiveand original jurisdiction of the VA or VA panel and shallimmediately dispose and refer the same to the Grievance

Machinery or Voluntary Arbitration provided in the CBA (Art.261, LC).The VA or VA panel, upon agreement of the parties, shall alsohear and decide all other labor disputes including unfair laborpractices (ULPs) and bargaining deadlocks (Art. 262, LC).The VA shall have the power to hold hearings, receiveevidence and take whatever action is necessary to resolvethe issue/s subject to the dispute, including efforts to effect avoluntary settlement between the parties.All parties to the dispute shall be entitled to attend thearbitration proceedings. The attendance of any third partyor the exclusion of any witness from the proceedings shallbe determined by the VA or VA panel. Hearings may beadjourned for cause or upon agreement by the parties.Unless the parties agree otherwise, it shall be mandatory for

the VA or the VA panel to render an award or decision within20 calendar days from the date of submission of the disputeto VA.

c. union dues, special assessment

Art. 241, Labor Code. Rights and conditions of membershipin a labor organization

(g) No officer, agent or member of a labor organization shall collect any fees,dues or other contributions in its behalf or make any disbursement of its moneyor funds unless he is duly authorized pursuant to its constitution and by-laws;(h) Every payment of fees, dues or other contributions by a member shall beevidenced by a receipt signed by the officer or agent making the collection andentered into the record of the organization to be kept and maintained for thepurpose;(n) No special assessment or other extraordinary fees may be levied upon themembers of a labor organization unless authorized by a written resolution of a

majority of all the members of a general membership meeting duly called for thepurpose. The secretary of the organization shall record the minutes of themeeting including the list of all members present, the votes cast, the purpose ofthe special assessment or fees and the recipient of such assessment or fees. Therecord shall be attested to by the president.(o) Other than for mandatory activities under the Code, no special assessments,attorneys fees, negotiation fees or any other extraordinary fees may be checkedoff from any amount due to an employee, without an individual written

authorization duly signed by the employee. The authorization should specificallystate the amount, purpose and beneficiary of the deduction, if any.xxx Any violation of the above rights and conditions of membership shall be aground for the cancellation of union registration or expulsion of officer fromoffice, whichever is appropriate. At least thirty percent (30%) of all the membersof a union or any member or members specifically concerned may report suchviolation to the Bureau. xxx

Art. 222 (b), Labor Code.Appearances and fees. -- (b) Noattorneys fees, negotiation fees or similar charges of any kindarising from any collective bargaining negotiations orconclusion of the collective agreement shall be imposed on anyindividual member of the contracting union; Provided,however, that attorneys fees may be charged againstunion funds in an amount to be agreed upon by the

parties. Any contract, agreement or arrangement of anysort to the contrary shall be null and void.

Palacol vs. Calleja, 26 Feb. 1990THE SPECIAL ASSESSMENT IN THIS CASE WAS

DECLARED INVALID.A special assessment cannot be validly deducted by the Unioncertified as coll. barg. agent from the lump-sum pay of itsmembers granted under the CBA, especially so that there

had been subsequent disauthorizations by the majorityof the union members, and that the procedure forimposition of special assessment provided by the LaborCode was not followed.

Special assessment was for purposes of putting up acooperative and credit union, for purchase of vehicles and otheritems needed for the benefit of the officers and generalmembership, and for payment of services rendered by unionmembers. Allocation thereof at discretion of Union President.The Union, contrary to the legal procedure, held localmembership meetings on different occasion, on different datesand various venues. It submitted only minutes of saidmeetings when what is required is a written resolution adoptedat the general meeting. Worse, only a union director recordedthe minutes and not the secretary, no record of votes or list of

members present.d. No Strike - No Lock-out clauseExample:

MANAGEMENT and UNION agree that the way topreserve job security and improve the welfare o f the employeesis to increase the goodwill xxx. It is therefore to the mutualinterest of both parties that the business of the company will


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continue without inconvenience to the public, and as such,MANAGEMENT and UNION agree as follows:

1. UNION agrees that there shall be no strike, walk-outs, stoppage, slowdown, boycotts, xxx whether sympatheticor general, during the effectivity of this CBA.

2. MANAGEMENT agrees that there shall be no lock-out during the effectivity of this CBA.

The No Strike-No Lockout Clause is not aninfringement or undue restriction of the constitutionalright to strike, because said clause is applicable only toECONOMIC STRIKES, but not to ULP strikes. In otherwords, even during the effectivity of the CBA, the Union

may still strike if the company commits ULP asenumerated in Article 248 of the Labor Code. (PHIL.

METAL FOUNDRIES VS. CIR, 90 SCRA 135)General rule:

A No strike - No Lock-out clause applies only toeconomic strikes, and not to ULP strike. (Phil. Metal Foundriescase).Exception: (but this is no longer controlling; alreadyoverturned and modified by the new rules which reverts back tothe Phil. Metal Foundries case)

When the CBA provides for a conclusive arbitration clause, inwhich case, even ULP strikes are subject to the no-strike nolock-out clause. (Union of Filipro vs. Nestle Phils.)

4.2 Other non-mandatory subjects

a. Management prerogatives clauseThe above provisions notwithstanding, MANAGEMENT isnot precluded from exercising its managementprerogatives, including but not limited to the exclusiveright to hire and appoint employees subject to suchreasonable rules and regulations it may prescribe, totransfer, demote, suspend, lay-off, dismiss or impose anyform of disciplinary action upon its employees, or suchother matters relative to the conduct of the business ofthe company.

b. Union security clauses (union shop/closed shop, etc.)

Example 1:MANAGEMENT agrees to require as a condition ofemployment for those employees within the bargainingunit who are either members of the ABC FEDERATION onthe date of the effectivity of this CBA, or may join theunion during the effectivity of this Agreement, and thatthey shall not voluntarily resign from the union earlierthan 60 days prior to expiration of this Agreement. xxx

Example 2:Section 1. Employees of the COMPANY who at thesigning of this Agreement are members of the UNION andthose who subsequently become members thereof shallmaintain their membership with the UNION for theduration of this Agreement as a condition of employment.Section 2. Members of the Union who cease to be

members of the UNION in good standing by reason ofresignation or expulsion shall not be retained in theemployment of the COMPANY.

NOTE: A Union security clause cannot have any retroactive effect under Article248 of the Labor Code, and as such, will not apply to employees who are alreadymembers of another union at the time of the effectivity of the CBA.

ART. 248. Unfair labor practices of employers. - It shallbe unlawful for an employer to commit any of thefollowing unfair labor practice:xxx(e) To discriminate in regard to wages, hours of work,and other terms and conditions of employment in order toencourage or discourage membership in any labororganization. Nothing in this Code or in any otherlaw shall stop the parties from requiring

membership in a recognized collective bargainingagent as a condition for employment, except thoseemployees who are already members of anotherunion at the time of the signing of the collective

bargaining agreement. Employees of an appropriatecollective bargaining unit who are not members of therecognized collective bargaining agent may be assessed areasonable fee equivalent to the dues and other fees paidby members of the recognized collective bargainingagent, if such non-union members accept the benefitsunder the collective agreement: Provided, that theindividual authorization required under Article 242,paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;

c. Signing bonus:

Caltex Refinery Assn. vs. Brillantes, 279 SCRA 218Although proposed by petitioner UNION, the signing bonuswas not accepted by the Company. Besides, a signingbonus is not a benefit which may be demanded under thelaw. Rather, it is now claimed by petitioner Union underthe principle of maintenance of existing benefits of theold CBA. However, as clearly explained by therespondent Company, a signing bonus may not be


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demanded as a matter of right. If it is not agreedupon by the parties, or unilaterally offered as anadditional incentive by the company, the conditionfor awarding it must be duly satisfied . In the presentcase, the condition sine qua non for its grant a non-strike was not complied with.

5. Bargaining Deadlock5.1 When is there a deadlock in collective bargaining

Deadlock is defined as the counteraction of things producingan entire stoppage; a state of inaction or of neutralizaitoncaused by the opposition of persons or factions;STANDSTILL.During negotiations, it is a situation where both parties havereached a point beyond which there is no longer anycompromise, e.g., unacceptable. The word is synonymous toan impasse, which in labor relations law, presupposesreasonable effort at good faith bargaining which, despite nobleintentions, does not conclude in an agreement between theparties.Capitol Medical Center Alliance of Concerned Employeesvs. Laguesma, 267 SCRA 503 (1997)

In the case of Divine Word University of Tacloban vs. Secretaryof Labor and Employment, we had the occasion to define whata deadlock is, viz:A deadlock is xxx the counterclaim of things producing entirestoppage; xxx. There is a deadlock when there is a completeblocking or stoppage resulting from the action of equal andopposed forces xxx. The word is synonymous with the wordimpasse, which xxx presupposes reasonable effort at goodfaith bargaining which, despite noble intentions, does notconclude in agreement between the parties.

If the law proscribes the conduct of a certificationelection when there is a bargaining deadlock submittedto conciliation or arbitration, with more reason should itnot be conducted if, despite attempts to bring an

employer to the negotiation table by the certified

bargaining agent, there was no reasonable effort ingood faith on the part of the employer to bargaincollectively.

This is what is strikingly different between the Kaisahan caseand the case at bench for in the latter case, there was proofthat the certified bargaining agent, respondent union, hadtaken an action to legally coerce the employer to comply withits statutory duty to bargain collectively, i.e., charging the

employer with unfair labor practice and conducting a strike inprotest against the employer' refusal to bargain. It is only

just and equitable that the circumstances in this caseshould be considered as similar in nature to a

bargaining deadlock when no certification electioncould be held. This is also to make sure that no floodgateswill be opened for the circumvention of the law by unscrupulous

employers to prevent any certified bargaining agent fromnegotiating a CBA. THUS, SECTION 3, RULE V, BOOK V OFTHE IMPLEMENTING RULES SHOULD BE INTERPRETEDLIBERALLY SO AS TO INCLUDE A CIRCUMSTANCE, E.G.WHERE A CBA COULD NOT BE CONCLUDED DUE TO THE

FAILURE OF ONE PARTY TO WILLINGLY PERFORM ITSDUTY TO BARGAIN COLLECTIVELY.

5.2 Remedies - Notice of strike or notice of lock-out30-day cooling-period and 7-day strike ban.

Art. 263 (c), Labor Code. Strikes, picketing and lock-outs.-- (c) In cases of bargaining deadlocks , the dulycertified or recognized bargaining agent may file anotice of strike or the employer may file a notice oflock-out with the Ministry (Department) at least 30days before the intended date thereof.

In cases of unfair labor practice, the period of noticeshall be 15 days and in the absence of a duly certified orrecognized bargaining agent, the notice of strike may be filedby any legitimate labor organization in behalf of its members.However, in case of dismissal from employment of unionofficers duly elected in accordance with the union constitutionand by-laws, which may constitute union busting where theexistence of the union is threatened, the 15-day cooling offperiod shall not apply, and the union may take actionaccordingly.(f) A decision to declare a strike must be approved by amajority of the total union membership in the bargaining unitconcerned, obtained by secret ballot in meetings or referendacalled for that purpose. Xxx The decision shall be valid for theduration of the dispute based on substantially the same

grounds considered when the strike or lockout vote wasconsidered. Xxx. In every case, the union or theemployer shall furnish the (Department) the results of

the volting at least seven days before the intended dateof strike or lockout, subject to the cooling-off periodherein provided.

C. COLLECTIVE BARGAINING AGREEMENT


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1. Definition Dept. Order No. 9, Rule I. Definition of terms. (pp) Collectivebargaining agreement refers to the negotiated contract between alegitimate labor organization and the employer concerning wages, hoursof work and all other terms and conditions of employment in abargaining unit.B5 R1 S1 (jj), Impl. Rules and Regulations . Collective bargaining

agreement refers to the negotiated contract between a legitimate labororganization and the employer concerning wages, hours of work and allother terms and conditions of employment in a bargaining unit, includingmandatory provisions for grievances and arbitration machineries.Davao Integrated Port Stevedoring vs. Abarquez, 220 SCRA 197

(1993)While the terms and conditions of a CBA constitute the law

between the parties, it is not an ordinary contract to which isapplied the principles of law governing ordinary contracts. ACBA, as a labor contract within contemplation of Art. 1700 of theCivil Code, is not merely contractual in nature but is impressed

with public interest. Thus, it must yield to the common good. Assuch, it must be construed liberally rather than narrowly and technically,and the courts must place a practical and realistic construction upon it,giving due consideration to the context in which it is negotiated and the

purpose which it is intended to serve.

2. Signing and ratification2.1 The collective bargaining agreement should be signed by the

members of both panels.2.2 After the signing by the panels, a majority of the employees

covered by the appropriate bargaining unit should ratify thesame.

2.3 Note the posting requirement in at least two conspicuous placesin the establishment at least five (5) days before its ratification

2.4 If certified CBA, contract bar rule applies and operates as a barto a representation question.

2.5 Note however that a CBA is valid even without certification, andwil l be considered as binding upon the part ies.

3. Procedure in registration of CBADept. Order No. 9 (April 1997), Rule XVI, Secs. 1, 2 & 5:(See also: B5 R9 S1, IRR)Section 1. Registration of collective bargaining agreement. Theparties to a collective bargaining agreement shall submit to theappropriate Regional Office two (2) duly signed copies thereof withinthirty (30) calendar days from execution. Such copies of the agreementshall be accompanied with verified proof of posting in two conspicuous

places in the work place and of ratification by the majority of all theworkers of the bargaining unit.

Such proof shall consist of copies of the following documentscertified under oath by the union secretary and attested to by

the union president.(a) Statement that the collective bargaining agreement was

posted in at least two conspicuous places in the establishment at least

five (5) days before its ratification; and(b) Statement that the collective bargaining agreement was

ratified by the majority of the employees in the bargaining unit.The Regional Office shall assess the employer for every

collective bargaining agreement a registration fee of one thousand pesos(P1,000.00).

The Regional Office shall retain one (1) copy of the agreementfor its file and transmit one (1) copy thereof tot he Bureau within five(5) calendar days from its registration. The Regional Office shall issue acertification of registration within five (5) calendar days from receipt ofthe agreement and the proofs of posting and ratification as requiredherein.Section 2. Registration of agreement resulting from awards bythe Secretary, the Commission or the Voluntary Arbitrator. --Where the agreement results from an arbitration award, the same shall

be registered in accordance with the immediately preceding section,except that the requirement of ratification and proof thereof shall bedispensed with.Section 5. Appeal. -- The decision of the Regional Director granting ordenying an action to declare the registration ineffectual may beappealed to the Bureau on the ground of grave abuse of discretionwithin ten (10) days from receipt of the parties of a copy thereof. TheBureau shall have twenty (20) dyas within which to resolve the appealand its decision shall be final and executory.Art. 231, Labor Code. Registry of unions and file of collectiveagreements. -- The Bureau shall keep a registry of legitimate labororganizations. The Bureau shall also maintain a file of all collectivebargaining agreements and other related agreements and records ofsettlement of labor disputes, and copies of orders, and decisions ofvoluntary arbitrators. The files shall be open and accessible to

interested parties subject to conditions prescribed by the Secretary ofLabor and Employment, provided that no specific information submittedin confidence shall be disclosed unless authorized by the Secretary, orwhen it is at issue in any judicial litigation or when public interest ornational security so requires.xxx

4. Scope of the agreement; who may avail of benefits -


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Natl. Brewers and Allied Industries Labor Union vs. San MiguelBreweryAll employees in the barg. unit are covered, regardless of theirmembership or non-membership in the union; otherwise, discrimination.

5. Duration of the CBA (Art. 253-A. cf. Dept. Order No. 9, Rule XIV,Secs. 3-4)

Article 253-A, Labor Code. (same as Dept. Order No. 9, Rule XIV,secs. 3-4)5.1 Economic provisions of the CBA - term of 3 yrs.

Dept. Order No. 9, Rule XIV, sec. 3All other provisions of said agreement shall, as a matter of right,be renegotiated not later than three (3) years after itsexecution.

5.2 Representation question and the contract-bar ruleDept. Order No. 9, Rule XIV, secs. 3-4Section 3. Term of representation status of agreement; contract-bar rule. -- The representation status of the incumbent exclusivebargaining representative which is a party to a duly registeredcollective bargaining agreement shall be for a term of five (5)years. (CONTRACT BAR RULE) NO PETITIONQUESTIONING THE MAJORITY STATUS OF THE INCUMBENT

EXCLUSIVE BARGAINING REPRESENTATIVE SHALL BEENTERTAINED AND NO CERTIFICATION ELECTION SHALLBE CONDUCTED BY THE DEPARTMENT OUTSIDE OF THESIXTY-DAY PERIOD IMMEDIATELY BEFORE THE DATE OF

EXPIRY OF SUCH FIVE-YEAR TERM.Section 4. Exception to the contract bar rule. Notwithstandingits registration, a collective bargaining agreement shall notconstitute a bar to a certification election where it is found inappropriate proceedings before the Regional Director that any ofthe following conditions exist:

(a) The agreement contains provisions lowerthan the standards fixed by law; or(b) The documents supporting its registrationare falsified, fraudulent or tainted with

misrepresentation.ALU vs. Ferrer-Calleja, 173 SCRA 178CONTRACT BAR RULE DOES NOT APPLY WHERE THE CBA

WAS NOT DULY SUBMITTED IN ACCORDANCE WITH LAW .Moreover, there is no proof tending to show that the CBA hasbeen posted in at least 2 conspicuous places in the company atleast 5 days prior to the ratification, and that the same wasratified by a majority of the members of the union.

Perusal of the facts show that the CBA was defective, and henceunproductive of the legal effects of a certified CBA. Note that theLabor unions representation was in itself questionable, and thatthere was precipitate haste in recognizing the union based on anunsubstantiated and self-serving claim that it represented themajority of the employees in the bargaining unit. Moreover,there was an apparent and suspicious hurry in the formulation

and finalization of the CBA.Hence: IF NOT CERTIFIED AND FILED WITH THE BLR, therepresentation issue may be questioned by another union.

5.3 Retroactivity Dept. Order No. 9, Rule XIV, sec. 3Any agreement on such other provisions entered into within six (6)months from the date of expiry of such provisions shall retroact to theday immediately following such date. If any such provisions areentered into beyond six months, the parties shall agree on theduration of retroactivity. In case of a deadlock in the renegotiationof the agreement, the parties may exercise their rights under theCode. In case of renegotiation, all requirements for registrationprescribed under the two immediately preceding sections shall becomplied with, whichever is applicable, except payment of theregistration fee.

Union of Filipro Employees vs. NLRC, 192 SCRA 397, at 425In the aforecited case, the Court only pointed out that, it is not rightfor union members to argue that they cannot be covered by the pastand the new CBAs both containing the same closed-shop agreementfor acts committed during the interregnum. What as emphasizedby this Court is that in no case should there be a period inwhich no agreement would govern at all. But nowhere in thesaid pronouncement did We rule that every CBA contracted

after the expiry date of the previous CBA must retroact to theday following such date. Hence, it is proper to rule that in the caseat bar, the clear and unmistakable terms of Articles 253 and 253-Amust be deemed controlling.Articles 253 and 253-A mandate the parties to keep the status quoand to continue in full force and effect the terms and conditions of theexisting agreement during the 60-day period prior to the expiration of

the old CBA and/or until a new agreement is reached by the parties.Consequently, there being no new agreement reached, the automaticrenewal clause provided for by the law which is deemed incorporatedin all CBAs, provides the reason why the new CBA can only be given aprospective effect.Petitioner claims that because of the prospective effect of the CBA,union members were deprived of substantial amount of monetarybenefits which they could have enjoyed had the CBA be given


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A: It is a contract executed upon request of either the Er or the exclusivebargaining representative of the Ees incorporating the agreement reached afternegotiations with respect to wages, hours of work, terms and conditions ofemployment, including proposals for adjusting any grievance or questions underthe agreement.

. Note: The certification of the CBA by the BLR is not required to make suchcontract valid. Once it is duly entered into and signed by the parties, a CBA

becomes effective as between the parties whether or not it has been certified by

the BLR. (Liberty Flour Mills Ees Association v. Liberty Flour Mills, G.R. Nos.

5876870, Dec. 29, 1989)

Q: What is a zipper clause?A: It is a stipulation in a CBA indicating that issues that could have beennegotiated upon but not contained in the CBA cannot be raised for negotiationwhen the CBA is already in effect.A CBA is not an ordinary contract but one impressed with public interest, onlyprovisions embodied in the CBA should be so interpreted and complied with.Where a proposal raised by a contracting party does not find print in the CBA, itis not a part thereof and the proponent has no claim whatsoever to itsimplementation. (SMTFMUWP v. NLRC , G.R. No. 113856, Sept. 7, 1998)

Q: When shall bargaining commence?A: It commences within 12 months after the determination and certification ofthe Ees exclusive bargaining representative. (certification year)

Q: What is the procedure in CB?

A: When a party desires to negotiate an agreement:1. It shall serve a written notice upon the other party with a statement ofproposals2. Reply by the other party shall be made within 10 days with counterproposals3. In case of differences, either party may request for a conference whichmust be held within 10 calendar days from receipt of request4. If not settled, NCMB may intervene and encourage the parties to submitthe dispute to a voluntary arbitrator5. If not resolved, the parties may resort to any other lawful means (eitherto settle the dispute or submit it to a voluntary arbitrator).

Note: During the conciliation proceeding in the NCMB, the parties are prohibitedfrom doing any act which may disrupt or impede the early settlement of disputes.(Art.250[d], LC)

Q: What are the stages in CB?

A:

1. Preliminary process: Sending a written notice for negotiation which mustbe clear and unequivocal2. Negotiation process.3. Execution process: The signing of the agreement

4. Publication for at least 5 days before ratification5. Ratification by the majority of all the workers in the bargaining unitrepresented in the negotiation (not necessary in case of arbitral award)6. Registration process.7. Administration process: The CBA shall be jointly administered by themanagement and the bargaining agent for a period of 5 years.8. Interpretation andApplication process.

Q: Does a petition for cancellation of a unions certificate of registrationinvolve a prejudicial question that should first be settled before partiescould be required to collectively bargain?

A: No. A pending cancellation proceeding is not a bar to set mechanics forcollective bargaining (CB). If a certification election may still be held even if apetition for cancellation of a unions registration is pending, more so that the CBprocess may proceed. The majority status of the un ion is not affected by the

cancellation proceedings. (Capitol Medical Center v. Trajano, G.R. No.155690, June 30, 2005)

Q: What is the duty to bargain collectively when there is no CBA?

A: It is the performance of a mutual obligation:1. To meet and convene promptly and expeditiously in good faith (GF)2. For the purpose of negotiating an agreement with respect to wages,hours of work and all other terms and conditions of employment3. Including proposals for adjusting any grievances or questions arisingunder such agreement; and4. To execute a contract incorporating such agreements if requested byeither party.(Art. 252)

Q: What are the limitations to the duty to bargain collectively?

A:

1. Such duty does not compel any party to agree to a proposal or to makeany concession.

2. Parties cannot stipulate terms and conditions of employment which are belowthe minimum reqts prescribed by law.

Q: May either party bargain to an impasse?

A: It depends:


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Q: When to file CBA?A: Within 30 days from execution of CBA.

Q: What are the requirements for registration?

A: The application for CBA registration shall be accompanied by the original and2 duplicate copies of the following reqts:1. CBA

2. A statement that the CBA was posted in at least 2 conspicuous places inthe establishment concerned for at least 5 days before its ratification3. Statement that the CBA was ratified by the majority of the Ees in thebargaining unit.

Note: The following documents must be certified under oath by therepresentative of the Er and the labor union. No other document shall be requiredin the registration of the CBA.Q: What is a single enterprise bargaining?A: It involves negotiation between one certified labor union and one Er. Anyvoluntarily recognized or certified labor union may demand negotiations with itsEr for terms and conditions of work covering Ees in the bargaining unitconcerned.

Q: What is a multiEr bargaining scheme?

A: It involves negotiation between and among several certified labor unions andErs.

Q: What is the duration of a CBA?A:

1. With respect to the representation aspect(refers to the identity andmajority status of the union that negotiated the CBA as the exclusive bargainingrepresentative): 5 years2. With respect to all other provisions (refers to the rest of the CBA,economic as well as noneconomic provisions other than representationalprovisions): 3 years after the execution of the CBA

Q: What are the economic provisions of a CBA?A:1. Wages

2. Family planning3. Effect ivity of the agreement4. Other terms and conditions of employment

Q: What are the noneconomic provisions of a CBA?A:1. Coverage of the bargaining unit2. Union security clauses

3. Management prerogatives and/or rights/responsibilities of employees4. Grievance machinery and voluntary arbitration5. No str ike no lock out provision

Q: What is the effectivity and retroactivity date of other economicprovisions of the CBA?A:

1. If the CBA is the very first for the bargaining unit, the parties have todecide the CBA effectivity date.2. Those made within 6 months after date of expiry of the CBA are subjectto automatic retroaction to the day immediately following the date of expiry.

1. Those not made within 6 months, the parties may agree to the date ofretroaction.

Note: This rule applies only if there is an existing agreement. If there is noexisting agreement, there is no retroactive effect because the date agreed uponshall be the start of the period of agreement.Art. 253A on retroactivity does not apply if the provisions were imposed by theSLE by virtue of arbitration. It applies only if the agreement was voluntarily madeby the parties.

Q: May the economic provisions of an existing CBA be extended beyondthe 3 year period as prescribed by law in the absence of a newagreement?A: Yes. Under theprinciple of hold over, until a new CBA has been executed byand between the parties, they are duty bound to keep the status quo and mustcontinue in full force and effect the terms and conditions of the existingagreement. The law does not provide for any exception or qualification as towhich of the economic provisions of the existing agreement are to retain forceand effect. Therefore, it must be encompassing all the terms and condition in thesaid agreement. (New Pacific Timber v. NLRC, G.R. No. 124224, Mar. 17, 2000)

Q: Mindanao Terminal Company and respondent union has an existingCBA which was about to expire. Thus, negotiations were held regardingcertain provisions of the CBA which resulted in a deadlock. Thus the

union filed a notice of strike. During the conference called by the NCMBthe company and the union were able to agree on all of the provisions ofthe CBA except for one. However, the last unresolved provision wassubsequently settled but no CBA was signed. Hence, in the records of the

Mediation Arbiter, all issues were settled before the lapse of the 6 monthperiod after the expiration of the old CBA. Does the signing of the CBAdetermine the date it was entered into within the 6 month period?


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A: No. The signing of the CBA does not determine whether the agreement wasentered into within the 6 month period from the date of expiration of the oldCBA. In the present case, there was already a meeting of the minds between thecompany and the union prior to the end of the 6 month period after theexpiration of the old CBA. Hence, such meeting of the mind is sufficient toconclude that an agreement has been reached within the 6 month period asprovided under Art. 253A of the LC.(Mindanao Terminal and Brokerage Services

Inc., v. Confessor, G.R. No. 111809, May 5, 1997)

Q: When is the effectivity of a CBA arbitral award concluded beyond 6months from the expiration of the old CBA?A: The CBA arbitral awards granted 6 months from the expiration of the last CBAshall retroact to such time agreed upon by both the Er and the union. Absentsuch agreement as to retroactivity, the award shall retroact to the 1st day afterthe 6 month period following the expiration of the last day of the CBA shouldthere be one. In the absence of a CBA, the SLE s determination of the date ofretroactivity as part of his discretionary powers over arbitral award shall control.(Manila Electric Company v. Quisumbing, G.R. No. 127598, Feb. 22 and Aug. 1,2000)

Q: PAL was suffering from a worsened financial condition resulting to aretrenchment which downsized its labor force by more than 1/3 thereby

affecting numerous union members. Hence, the union went on strike.The PAL offered that shares of stock be transferred to its Ees but theunion refused. Thus, PAL claimed it has no alternative left but to close.Hence, the union PALEA offered that the CBA be suspended for 10 yearsand to waive some of the economic benefits in the CBA provided they

remain the certified bargaining agent. PAL agreed and resumedoperations. Is the agreement to suspend the CBA for 10 years abdicatedthe workers right to bargain?A: No. The primary purpose of a CBA is to stabilize labor management relationsin order to create a climate of a sound and stable industrial peace. The assailedagreement was the result of the voluntary CB negotiations undertaken in thelight of severe financial situation faced by PAL.

Q: Is the agreement in conflict with Art. 253A of the LC?A: No. There is no conflict between the agreement and Art. 253 A of the LC for

the latter has a 2fold purpose namely: a) to promote industrial stability andpredictability and b) to assign specific time tables wherein negotiations become amatter of right and requirement. In so far as the first purpose, the agreementsatisfies the first purpose. As regard the second purpose, nothing in Art. 253Aprohibits the parties from waiving or suspending the mandatory timetables andagreeing on the remedies to enforce the same.

Q: Does the agreement violate the 5 year representation limit asprovided under Art. 253A of the LC?A: No. For under the said article, the representation limit of the exclusivebargaining agent applies only when there is an existing CBA in full force andeffect. In this case, the parties agreed to suspend the CBA and put in abeyancethe limit on representation. (Rivera v. Espiritu, G.R. No. 135547, Jan. 23, 2002)

b.Mandatory provisions of the CBA

Q: What are the mandatory provisions of the CBA?A:

1. Grievance machinery2. Voluntary arbitration3. Wages4. Hours of work5. Family planning6. Rates of pay7. Mutual observance clause

Note: In addition, the BLR requires the CBA should include a clear statement ofthe terms of the CBA.

Ers duty to bargain is limited to mandatory bargaining subjects; as to othermatters, he is free to bargain or not

Q: How are cases arising from the Interpretation or implementation ofCBAs handled and disposed?A: They are disposed through the grievance machinery and if not resolved by thegrievance machinery, through voluntary arbitration. (1995 Bar Question)

Q: How are cases arising from the Interpretation or implementation ofCBAs handled and disposed?A: They are disposed through the grievance machinery and if not resolved by thegrievance machinery, through voluntary arbitration. (1995 Bar Question)

Q: What is grievance?

A: It is any question by either the employer or the union regarding theinterpretation or implementation of any provision of the CBA or interpretation orenforcement of company personnel policies. (Sec.1 [u], Rule I, Book V, IRR)Q: What provisions must the parties include in a CBA?A:

1. Provisions that will ensure the mutual observance of its terms and conditions.2. A machinery for adjustment and resolution of grievances arising from the:


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a. Interpretation/implementation of the CBA andb. Interpretation/ enforcement of company personnel policies. (Art. 260, par.1).

(1)Grievance Procedure

Q: What is grievance machinery?

A: It refers to the mechanism for the adjustment and resolution of grievancesarising from the interpretation or enforcement of company personnel policies. Itis part of the continuing process of collective bargaining (CB).Note: It is a must provision in any CBA and no collective agreement canbe registered in the absence of such procedure.

Q: How is grievance machinery established?A:1. Agreement by the parties2. A grievance committee composed of at least 2 representatives eachfrom the members of the bargaining unit and the employer, unless otherwiseagreed upon by the parties shall be created within 10 days from the signing ofCBA

Note: Although Art. 260 of the Labor Code mentions parties to a CBA, it doesnot mean that a grievance machinery cannot be set up in a CBAless enterprise.

In any workplace where grievance can arise, a grievance machinery can beestablished.

Q: What is grievance procedure?A: It refers to the internal rules of procedure established by the parties

in their CBA which usually consists of successive steps starting at the level of thecomplainant and his immediate supervisor and ending, when necessary, at thelevel of the top union and company officials and with voluntary arbitration as theterminal step.

Q: What will happen to grievances submitted to the grievance machinerywhich are not settled within 7 calendar days from the date of theirsubmission?A: They shall automatically be referred to voluntary arbitration prescribed in theCBA. (Art. 260, par.2, Labor Code)Either party may serve notice upon the other of its decision to submit the issue tovoluntary arbitration (VA):

1. If the party upon whom such notice is served fails/refuses to respondwithin 7 days from receipt, VA/panel designated in the CBA shall commencearbitration proceedings2. If the CBA does not designate or if the parties failed to name the VA/panel, theregional branch of NCMB appoints VA/panel

(2)Voluntary Arbitration

Q: What is voluntary arbitration?

A: It refers to the mode of settling labor management disputes by which theparties select a competent, trained and impartial third person who shall decide onthe merits of the case and whose decision is final and executory. (Sec.1 [d],

Rule II, NCMB Revised Procedural Guidelines in the Conduct of VoluntaryArbitration Proceedings, Oct. 15, 2004)

Q: What is the difference between compulsory and voluntary arbitration?A: Compulsory arbitration is a system whereby the parties to a dispute arecompelled by the government to forego their right to strike and are compelled toaccept the resolution of their dispute through arbitration by a 3rd party. Theessence of arbitration remains since a resolution of a dispute is arrived at byresort to a disinterested third party whose decision is final and binding on theparties, but in compulsory arbitration, such a third party is normally appointed bythe government.Under voluntary arbitration, on the other hand, referral of a dispute by theparties is made, pursuant to a voluntary arbitration clause in their collectiveagreement, to an impartial third person for a final and binding resolution. Ideally,arbitration awards are supposed to be complied with by both parties without

delay, such that once an award has been rendered by an arbitrator, nothing isleft to be done by both parties but to comply with the same. After all, they arepresumed to have freely chosen arbitration as the mode of settlement for thatparticular dispute. Pursuant thereto, they have chosen a mutually acceptablearbitrator who shall hear and decide their case. Above all, they have mutuallyagreed to be bound by said arbitrator's decision. (Luzon Devt Bank v. Assnof Luzon Devt Bank Ees, G.R. No. 120319, Oct. 6, 1995)

Q: What is the basis for voluntary arbitration and its rationale?A: The State shall promote the principle of shared responsibility between workersand employers and the preferential use of voluntary modes in settling disputes,including conciliation, and shall enforce their mutual compliance therewith tofoster industrial peace (Sec. 3, Art. XIII, 1987 Constitution

(3)No StrikeNo Lockout Clause

Q: When does the No StrikeNo Lockout clause in the CBA apply?A: The no strikeno lockout clause in the CBA applies only to economic strikes.It does not apply to ULP strikes. Hence, if the strike is founded on an unfair laborpractice of the employer, a strike declared by the union cannot be considered aviolation of the no strike clause. (Master Iron Labor Union v. NLRC, G.R. No.92009, Feb. 17, 1993)


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(4)Labor Management Council

Q: What is the role of the Department of Labor and Employment in the

creation of Labor Management Councils?A: The Department shall promote the formation of labormanagementcouncils in organized and unorganized establishments to enable the

workers to participate in policy and decisionmaking processes in theestablishment, insofar as said processes will directly affect their rights, benefitsand welfare, except those which are covered by collective bargaining agreementsor are traditional areas of bargaining.The Department shall promote other labormanagement cooperation schemesand, upon its own initiative or upon the request of both parties, may assist in theformulation and development of programs and projects on productivity,occupational safety and health, improvement of quality of work life, productquality improvement, and other similar schemes. (Sec. 1, Rule XXI, Book V, IRR)

Q: How is the representative in the Management Council Selected?A: In organized establishments, the workers representatives to the councilshall be nominated by the exclusive bargaining representative. In establishmentswhere no legitimate labor organization exists, the workers representative shall beelected directly by the employees at large. (Sec. 2, Rule XXI, Book V, IRR)

_________________________E N D

CASES IN PART B:

KIOK LOY VS NLRC (PAMBANSANG KILUSAN NG PAGGAWA)141 SCRA 179

CUEVAS: January 22, 1986

NATURE: Petition for certiorari to annul the decision of the National LaborRelations Commission

FACTS:- In a certification election held on October 3, 1978, the Pambansang

Kilusang Paggawa (Union for short) was subsequently certified in aresolution dated November 29, 1978 by the Bureau of Labor Relationsas the sole and exclusive bargaining agent of the rank-and-fileemployees of Sweden Ice Cream Plant (Company for short). TheCompany's motion for reconsideration of the said resolution was deniedon January 25, 1978.

- December 7, 1978, the Union furnished the Company with two copies ofits proposed collective bargaining agreement. It also requested the

Company for its counter proposals. Both requests were ignored andremained unacted upon by the Company.

- The Union, on February 14, 1979, filed a "Notice of Strike", with theBureau of Labor Relations (BLR) on ground of unresolved economicissues in collective bargaining.

- Conciliation proceedings then followed during the thirty-day statutorycooling-off period.

-The Bureau of Labor Relations to certify the case to the National LaborRelations Commission for compulsory arbitration.

- The labor arbiter set the initial hearing for April 29, 1979. For failurehowever, of the parties to submit their respective position papers asrequired, the said hearing was cancelled and reset to another date.

- The Union submitted its position paper.- On July 20, 1979, the National Labor Relations Commission rendered its

decision declaring the respondent guilty of unjustified refusal to bargain- Petitioner contends that the National Labor Relations Commission acted

without or in excess of its jurisdiction or with grave abuse of discretionamounting to lack of jurisdiction in rendering the challenged decision.

- Petitioner further contends that the National Labor RelationsCommission's finding of unfair labor practice for refusal to bargain is notsupported by law

ISSUE/S:

- WON the respondent is guilty of unjustified refusal to bargain

HELD:YESunfair labor practice is committed when it is shown that the respondentemployer, after having been served with a written bargaining proposal by thepetitioning Union, did not even bother to submit an answer or reply to the saidproposalRatioUnfair labor practice is committed when it is shown that the respondentemployer, after having been served with a written bargaining proposal by thepetitioning Union, did not even bother to submit an answer or reply to the saidproposal.

Reasoning:Collective bargaining which is defined as negotiations towards a collectiveagreement, is one of the democratic frameworks under the New Labor Code,designed to stabilize the relation between labor and management and to create aclimate of sound and stable industrial peace. It is a mutual respons ibility of theemployer and the Union and is characterized as a legal obligation. So much sothat Article 249, par. (g) of the Labor Code makes it an unfair labor practice for


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an employer to refuse "to meet and convene promptly and expeditiously in goodfaith for the purpose of negotiating an agreement with respect to wages, hours ofwork, and all other terms and conditions of employment including proposals foradjusting any grievance or question arising under such an agreement andexecuting a contract incorporating such agreement, if requested by either party.While it is a mutual obligation of the parties to bargain, the employer, however,is not under any legal duty to initiate contract negotiation. The mechanics of

collective bargaining is set in motion only when the following jurisdictionalpreconditions are present, namely, (1) possession of the status of majorityrepresentation of the employees' representative in accordance with any of themeans of selection or designation provided for by the Labor Code; (2) proof ofmajority representation; and (3) a demand to bargain under Article 251, par. (a)of the New Labor Code .- From the over-all conduct of petitioner company in relation to the task ofnegotiation, there can be no doubt that the Union has a valid cause to complainagainst its (Company's) attitude, the totality of which is indicative of the latter'sdisregard of, and failure to live up to, what is enjoined by the Labor Code tobargain in good faith.

DISPOSITION: Petition dismissed_______________________KIOK LOY (SWEDEN ICE CREAM PLANT) V NLRC, KILUSAN

G.R. No. L-54334CUEVAS; JAN 22 1986

NATURE

Petition for CERTIORARI to annul the decision ofNLRC (w/c found petitioner guiltyof ULP for unjustified refusal to bargain, in violation of par. (g) of Article 249Labor Code, and declared the draft proposal of the KILUSAN for a collectivebargaining agreement as the governing CBA bet the EEs and the mgt.

FACTS- Pambansang Kilusan ng Paggawa (Kilusan), a legitimate labor federation, woncert election and was certified by the BLR as the so le and exclusive bargainingagent of the rank-and-file employees of Sweden Ice Cream Plant (Company).

- Kilusan then gave the Company two copies of its proposed CBA. It requestedthe Company for its counter proposals. There was no response from Company.Kilusan again requested the Company for collective bargaining negotiations andfor the Company to furnish them with its counter proposals. Both requests wereignored and remained unacted upon by the Company.

-Kilusan on Feb 14, 1979, filed a "Notice of Str ike", with the BLR on ground ofunresolved economic issues in collective bargaining.

-Conciliation proceedings followed but all attempts towards an amicablesettlement failed. BLR certified the case to the NLRC for compulsory arbitration.The case was reset/postponed several times (mostly Companys request).

-Then in the scheduled hearing on June 4, 1979, the Company's representative,Mr. Ching, who was supposed to be examined, failed to appear. The Companyscounsel requested for another postponement. The labor arbiter denied. He ruled

that the Company has waived its right to present further evidence and, therefore,considered the case submitted for resolution.

- NLRC held: Sweden Ice Cream guilty of unjustified refusal to bargain. The draftproposal for a CBA was found to be reasonable under the premises, and declaredto be the collective agreement w/c should govern the relationship between theparties.

-Petitioner: its right to procedural due process has been violated when it wasprecluded from presenting further evidence in support of its stand and when itsrequest for further postponement was denied.that the NLRCs finding of unfair labor practice for refusal to bargain is notsupported by law and the evidence considering that it was only on May 24. 1979when the Union furnished them with a copy of the proposed CBA and it was onlythen that they came to know of the Union's demands; that CBA approved and

adopted by the NLRC is unreasonable and lacks legal basis.

ISSUE/S1) WON companys right to due process has been violated

2) WON company is guilty of ULP3) WON CBA is reasonable

HELD

1) NO-Considering the various postponements granted in its behalf, the claimed denialof due process appeared totally bereft of any legal and factual support. As hereinearlier stated, petitioner had not even honored respondent union with any replyto the latter's successive letters, all geared towards bringing the Company to thebargaining table.. Certainly, the moves and overall behavior of company were intotal derogation of the policy enshrined in the Labor Code which is aimedtowards expediting settlement of economic disputes. Hence, the Court is notprepared to affix its imprimatur to such an illegal scheme and dubiousmaneuvers.

2) YES

- Article 249, par. (g) LC makes it an unfair labor practice for an

employer to refuse "to meet and convene promptly and expeditiously in


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good faith for the purpose of negotiating an agreement with respect towages, hours of work, and all other terms and conditions of employmentincluding proposals for adjusting any grievance or question arising under such anagreement and executing a contract incorporating such agreement, if requestedby either party."

-Collective bargaining which is defined as negotiations towards a collective

agreement, is designed to stabilize the relation between labor and managementand to create a climate of sound and stable industrial peace . It is a mutualresponsibility of the employer and the Union and is characterized as alegal obligation.- While it is a mutual obligation of the parties to bargain, the employer,however, is not under any legal duty to initiate contract negotiation.

-The mechanics of collective bargaining is set in motion only when the ff.jurisdictional preconditions are present, namely, (1) possession of the status ofmajority representation of the employees' representative in accordance with anyof the means of selection or designation provided for by the LC; (2) proof ofmajority representation; and (3) a demand to bargain under Art 251, par. (a) ofthe Labor Code . . . all of which preconditions are undisputedly present in theinstant case.

-From the over-all conduct of petitioner company, Kilusan has a valid cause tocomplain against Company's attitude, the totality of which is indicative of thelatter's disregard of, and failure to live up to, what is enjoined by the Labor Code---- to bargain in good faith.

-Company is GUILTY of unfair labor practice. (1) respondent Union was aduly certified bargaining agent; (2) it made a definite request to bargain,accompanied with a copy of the proposed CBA, to the Company not only once buttwice which were left unanswered and unacted upon; and (3) the Company madeno counter proposal whatsoever all of which conclusively indicate lack of asincere desire to negotiate. Even during the period of compulsory arbitrationbefore the NLRC, Company's stalled the negotiation by a series ofpostponements, non-appearance at the hearing conducted

-Herald Delivery Carriers Union (PAFLU) vs. Herald Publications: "unfairlabor practice is committed when it is shown that the respondentemployer, after having been served with a written bargaining proposalby the petitioning Union, did not even bother to submit an answer or

reply to the said proposal. This doctrine was reiterated in Bradman vs.CIR: "while the law does not compel the parties to reach an agreement,it does contemplate that both parties will approach the negotiation withan open mind and make a reasonable effort to reach a common ground

of agreement".

3) YES

- The instant case being a certified one, it must be resolved by the NLRCpursuant to the mandate of P.D. 873, as amended, which authorizes the saidbody to determine the reasonableness of the terms and conditions ofemployment embodied in any CBA. To that extent, utmost deference to its

findings of reasonableness of any Collective Bargaining Agreement as thegoverning agreement by the employees and management must be accorded duerespect by this Court.Disposition Petition dismissed.

________________________________

LakasngManggagawangMakabayan v. Marcelo Enterprises

G.R. No. L-38258November 19, 1982

QUICK SUMMARY:

LAKAS and 3 other unions are vying for the attention of the Marcelo Companiesregarding who shall by the sole and exclusive bargaining representative. Thecompanies required proof of authority from the unions. Later, the companies

were compelled to file a certification election of who shall be the exclusivebargaining representative. Among other things, LAKAS claims that these areconsidered ULP.

DOCTRINE:

In a situation like this where the issue of legitimate representation in dispute isviewed for not only by one legitimate labor organization but two or more, there isevery equitable ground warranting the holding of a certification election. In thisway, the issue as to who is really the true bargaining representative of all theemployees may be firmly settled by the simple expedient of an election.

~

It is essential to the right of a putative bargaining agent to represent theemployees that it be the delegate of a majority of the employees and,conversely, an employer is under duty to bargain collectively only when thebargaining agent is representative of the majority of the employees.

A natural consequence of these principles is that the employer has the right todemand of the asserted bargaining agent proof of its representation of itsemployees. Having the right to demonstration of this fact, it is not an 'unfair


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labor practice' for an employer to refuse to negotiate until the assertedbargaining agent has presented reasonable proof of majority representation.

It is necessary however, that such demand be made in good faith and not merelyas a pretext or device for delay or evasion. The employer's right is however toreasonable proof.

Although an employer has the undoubted right to bargain with a bargainingagent whose authority has been established, without the requirement that thebargaining agent be officially certified by the National Labor Relations Board assuch, if the informally presented evidence leaves a real doubt as to the issue, theemployer has a right to demand a certification and to refuse to negotiate untilsuch official certification is presented.

~

The protection of workers' right to self-organization in no way interfere withemployer's freedom to enforce such rules and orders as are necessary to properconduct of his businesses, so long as employer's supervision is not for thepurpose of intimidating or coercing his employees with respect to their self-organization and representation

NO DIGEST FOR DIVINE WORD UNIVERSITY_______________________________

NATURE OF PROCEDURE

ASSOCIATED LABOR UNIONS (ALU) vs. FERRER-CALLEJA173 SCRA 178Regalado; May 5, 1989

FACTS- ALU, through a letter dated May 7, 1986, informed GAW Trading, Inc. thatmajority of the latter's employees have authorized ALU to be their sole andexclusive bargaining agent (SEBA), and requested a conference with GAW for theexecution of an initial Collective Bargaining Agreement (CBA). ALU received aletter dated May 12th from GAW, which letter set the meeting on the same date.The following day, May 13th, ALU transmitted to GAW copies of the proposed

CBA. 2 days later, ALU and GAW executed the CBA. In the meantime, on May9th, 2 unions in the company went on strike.

- After the signing of the CBA, one o f the striking unions filed a petition forcertification election, which petition was eventually granted by the Bureau ofLabor Relations. Hence the present action by ALU, which invokes the CBA it madewith GAW and, thus, the applicability of the contract bar rule.

ISSUE WON the contract bar rule applies

HELD NO. The subject CBA is defective.RATIO:1

The mechanics of collective bargaining are set in motion only when the

following jurisdictional preconditions are present, namely, (1) possession of thestatus of majority representation by the employees' representative; (2) proof ofmajority representation; and (3) a demand to bargain. The standing of ALU asSEBA is dubious, to say the least. The only express recognition of ALU as SEBA inthe records is in the CBA. There was precipitate haste on the part of GAW inrecognizing ALU, which recognition appears to have been based on the self-serving claim of ALU that it had the support of the majority of the employees inthe bargaining unit. Furthermore, at the time of the supposed recognition, GAWwas obviously aware that there were other unions existing in the unit.

There was also failure to post the CBA in conspicuous places in the establishmentbefore its ratification, as required by the implementing rules of the Labor Code.Also, BLR found that about 64% of the workers who "ratified" the CBA nowstrongly repudiate the alleged negotiation and ratification of the CBA.___________________________COLEGIO DE SAN JUAN DE LETRAN v ASSOCIATION OF EMPLOYEES ANDFACULTY OF LETRAN340 SCRA 587

KAPUNAN; Sept 18, 2000

Nature:Petition for review on certiorari

1

ART. 251. Duty to bargain collectively in the absence of collective

bargaining agreements. - In the absence of an agreement or other

voluntary arrangement providing for a more expeditious manner of

collective bargaining, it shall be the duty of employer and the

representatives of the employees to bargain collectively in accordance

with the provisions of this Code.

ART. 233. Privileged communication. - Information and statements

made at conciliation proceedings shall be treated as privileged

communication and shall not be used as evidence in the Commission.

Conciliators and similar officials shall not testify in any court or body

regarding any matters taken up at conciliation proceedings conducted bythem.


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Facts:- On Dec 1992, Salvador Abtria, then President of respondent union,

initiated the renegotiation of its CBA with petitioner for the last 2 yearsof the 5 year lifetime from 1989-1994. On the same year, the unionelected a new set of officers, with Eleanor Ambas as new president.

- Ambas wanted to continue the renegotiation of the CBA but petitioner,

through Fr. Edwin Lao, claimed that the CBA was already prepared forsigning by the parties. The parties submitted the disputed CBA to areferendum by the union members, who eventually rejected the saidCBA.

- Petitioner accused the union officers of bargaining in bad faith before theNLRC. The labor arbiter ruled in favor of petitioner, but was reversed onappeal before the NLRC.

- On Jan 1996, the union notified the National Conciliation and MediationBoard of its intention to strike.

- On Jan 18, 1996 the parties agreed to disregard the unsigned CBA andto start negotiation on a new 5 year CBA starting 1994-1999. On Feb 7,1996, the union submitted its proposals to petitioner, which notified theunion 6 days later that it has been submitted to its Board of Trustees.

- Ambas was informed through a letter dated Feb 15, 1996 that her workschedule was being changed from Mon-Fri to Tue-Sat. Ambas protested

and requested management to submit the issue to a grievancemachinery under the old CBA.- Due to petitioners inaction, the union filed a notice of strike on Mar 13,

1996. On Mar 29, the union received petitioners letter dismissingAmbas for alleged insubordination. The union amended the notice ofstrike to include Ambas dismissal.

- On Apr 20 1996, both parties again discussed the ground rules for theCBA negotiations. However, petitioner stopped the negotiations after itpurportedly received information that a new group of employees hadfiled a certification election.

- On June 18, 1996, the union finally struck. On July 2, the Sec of Laborassumed jurisdiction and ordered all striking employees including theunion president to return to work and for petitioner to accept them backunder the same terms and conditions before the actual strike. Petitionerreadmitted the striking members except Ambas.

- On Dec 2, 1996, the Sec of Labor issued an order declaring petitionerguilty of unfair labor practice on two counts and directing thereinstatement of Ambas, with backwages.

- Petitioners MFR was denied, so it sought a review before the CA, whichdismissed the petition and affirmed the findings of the Sec of Labor.

Issues:1. WON petitioner is guilty of unfair labor practice by refusing to bargainwith the union when it unilaterally suspended the ongoing negotiationsfor a new CBA upon mere information that a petition for certification has

been filed by another legitimate labor organization2. WON the termination of the union president amounts to aninterference of the employees right to self-organization

Held:1. YES- Article 252 of the Labor Code defines the meaning of the phrase duty tobargain collectively.

Article 252. Meaning of duty to bargain collectively. The duty to bargaincollectively means the performance of mutual obligation to meet and convenepromptly and expeditiously in good faith for the purpose of negotiating anagreement with respect to wages, hours of work and all other terms andconditions of employment including proposals for adjusting any grievances orquestions arising under such agreement and executing a contract incorporatingsuch agreements if requested by either party but such duty does not compel anyparty to agree to a proposal or to make any concession.- There is a requirement on both parties of the performance of the mutual

obligation to meet and convene promptly and expeditiously in good faith for thepurpose of negotiating an agreement. The union lived up to its requisite when itpresented its proposals for the CBA to petitioner. On the other hand, petitionerdevised ways and means in order to prevent the negotiation.- Petitioners utter lack of interest in bargaining with the union is obvious in itsfailure to make a timely reply to the proposals presented by the union. This is aclear violation of Article 250 of the Labor Code

Article 250. Procedure in collective bargaining. The following proceduresshall be observed in collective bargaining:(a) When a party desires to negotiate an agreement, it shall serve a writtennotice upon the other party with a statement of its proposals. The other partyshall make a reply thereto not later than ten (10) calendar days from receipt ofsuch notice. Xxx- Petitioner claims that the suspension of negotiations was proper s ince by thefiling of the petition for certification of election the issue on majorityrepresentation of the employees arose. Court held that in order to allow theemployer to validly suspend the bargaining process there must be a valid petitionfor certification election raising a legitimate representation issue. Hence, themere filing of a petition for certification election does not ipso facto justify thesuspension of negotiation by the employer. The petition must first comply withthe provisions of the Labor Code and its Implementing Rules. Foremost is that a


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petition for certification election must be filed during the sixty-day freedomperiod.

2. YESWhile the Court recognizes the right of the employer to terminate the services o fan employee for a just or authorized cause, nevertheless, the dismissal ofemployees must be made within the parameters of law and pursuant to the

tenets of equity and fair play.

Disposition Petition denied________________COLEGIO DE SAN JUAN DE LETRAN V ASSOCIATION OF EMPLOYEES AND

FACULTY OF LETRAN (AMBAS)340 SCRA 587

KAPUNAN,J.; September 18, 2000

NATUREPetition for review on certiorari of the decision of the CA dismissing the petitionof petitioner and affirming the order of the Sec of Labor

FACTS- Respondent union initiated the renegotiation of its CBA with petitioner for thelast 2 years of the CBAs 5 year lifetime. In the same year, the union elected anew set of officers wherein private respondent Eleanor Ambas was electedPresident. Ambas wanted to continue the renegotiation of the CBA but petitionerclaimed that the CBA was already prepared for signing by the parties. The partiessubmitted the disputed CBA to a referendum by the union members, whoeventually rejected the said CBA. Petitioner accused the union officers ofbargaining in bad faith before the NLRC. The Labor Arbiter decided in favor ofpetitioner. However, the Labor Arbiters decision was reversed on appeal beforethe NLRC. The union gave notice to the National Conciliation & Mediation Board ofits intention to strike on the grounds o f petitioners non-compliance with theNLRCs orders and refusal to bargain.- The parties agreed to disregard the unsigned CBA and to start negotiation on anew five-year CBA. The union submitted its proposals to petitioner, which notifiedthe union that the same had been submitted to its Board of Trustees. In themeantime, Ambas was informed through a letter from her superior that her workschedule was being changed from Monday to Friday to Tuesday to Saturday.Ambas protested and requested management to submit the issue to grievancemachinery under the old CBA. Due to petitioners inaction, the union filed a noticeof strike. The parties met before the NCMB to discuss the ground rules for thenegotiation. The union received petitioners letter dismissing Ambas for allegedinsubordination. Hence, the union amended its notice of strike to include Ambasdismissal. Both parties again discussed the ground rules for the CBArenegotiation. However, petitioner stopped the negotiations after it purportedly

received information that a new group of employees had filed a petition forcertification election.- The union finally struck. Public respondent Sec of Labor assumed jurisdictionand ordered all striking employees including the union president to return towork and for petitioner to accept them back under the same terms and conditionsbefore the actual strike. Petitioner readmitted the striking members exceptAmbas. Public respondent issued an order declaring petitioner guilty of unfair

labor practice on two counts and directing the reinstatement of privaterespondent Ambas with backwages. Petitioner filed an MFR which was denied.Petitioner sought a review of the order of the Sec of Labor before the CA. Theappellate court dismissed the petition and affirmed the findings of publicrespondent.

ISSUE/S

1. WON petitioner is guilty of unfair labor practice by refusing to bargain with theunion when unilaterally suspended negotiations2. WON termination of the union president amounts to interference with the rightto self-organization

HELD1. YESRatio Petitioners utter lack of interest in bargaining with the union is obvious inits failure to make a timely reply to the proposals presented by the latter. Wherethe employer did not even bother to submit an answer to the bargainingproposals of the union, there is a clear evasion of the duty to bargain collectively.

Reasoning In order to allow the employer to validly suspend the bargainingprocess there must be a valid petition for certification election raising a legitimaterepresentation issue. The mere filing of a petition for certification election doesnot ipso facto justify the suspension of negotiation. The petition must first complywith the Labor Code and its Implementing Rules. Significantly, the same petitionwas dismissed by the Sec of Labor. The dismissal was upheld by this Court.

2. YESRatio Management has the prerogative to discipline its employees forinsubordination. But when the exercise of such management right tends tointerfere with the employees right to self-organization, it amounts to union-busting and is therefore a prohibited act.

Reasoning The dismissal of Ms. Ambas was clearly designed to frustrate theUnion in its desire to forge a new CBA with the College that is reflective of thetrue wishes and aspirations of the Union members. Her dismissal was merely asubterfuge to get rid of her. It has the effect of busting the Union, stripping it ofits strong-willed leadership. When management refused to treat the charge ofinsubordination as a grievance within the scope of the Grievance Machinery, the


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action of the College in finally dismissing her from the service became arbitrary,capricious and whimsical, and therefore violated Ms. Ambas right to due process.

On Duty to Bargain Collectively

Article 252 of the Labor Code defines the meaning of the phrase "duty to bargaincollectively," as follows: The duty to bargain collectively means the performanceof a mutual obligation to meet and convene promptly and expeditiously in

good faith for the purpose of negotiating an agreement with respect to wages,hours of work and all other terms and conditions of employment includingproposals for adjusting any grievances or questions arising under suchagreement and executing a contract incorporating such agreements if requestedby either party but such duty does not compel any party to agree to a proposalor to make any concession.Disposition Petition is DENIED for lack of merit._______________________SUSPENSION OF BARGAINING

COLEGIO de SAN JUAN de LETRAN v ASSOCIATION OF EMPLOYEES

340 SCRA 587KAPUNAN; September 18, 2000

FACTS:-Newly elected union president Ambas wanted to continue the renegotiation ofthe CBA with said school but petitioner claimed that the CBA was alreadyprepared for signing by the parties. Union members rejected CBA-union notified the National Conciliation and Mediation Board (NCMB) of itsintention to strike on the ground of petitioner's refusal to bargain. January 18,1996, the parties agreed to start negotiation on a new five-year CBA starting1994-1999. On February 7, 1996, the union submitted its proposals to petitioner,which notified the union six days later or on February 13, 1996 that the samehad been submitted to its Board of Trustees.-In the meantime, Ambas was informed that her work schedule was beingchanged from Monday to Friday to Tuesday to Saturday. Ambas protested andrequested management to submit the issue to a grievance machinery under theold CBA-Due to petitioner's inaction, the union filed a notice of strike. The parties met onMarch 27, 1996 before the NCMB to discuss the ground rules for the negotiation.On March 29, 1996, the union received petitioner's letter dismissing Ambas foralleged insubordination- On April 20, 1996, both parties again discussed the ground rules for the CBArenegotiation. However, petitioner stopped the negotiations after it purportedlyreceived information that a new group of employees had filed a peti

part b cases- on collective bargaining

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