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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
modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between the workers and employers, recognizing the right of labor to its just share in the fruits of production, and the right of entrepreneurs to 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 the State: (a) to promote and emphasize the primacy of free collective bargaining and negotiations, as modes of settling labor or industrial dispute. Art. 255. Exclusive bargaining representation and workers participation in policy and decision-making . -- The labor organization designated orselected by a majority of the employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or a group of employees shall have the right 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 as the Secretary of Labor and Employment may promulgate, the participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, that the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. Kiok Loy vs. NLRC, 141 SCRA 179 (1986) Collective bargaining which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management, and to create a climate of sound and stable industrial peace. It is a mutual resonsibility of the employer and the union, and is characterized as a legal obligation. So much so that Art. 249 (g) of the Labor Code makes it a ULP for the employer to reufse 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, including proposals for adjusting any grievance or question arising under such an

DEFINITION OF TERMS/CONCEPTS:
INTRODUCTION
Why do you suppose collective bargaining is mandated by the Constitution? Why is it so important as to ensure that workers be collectively given a chance to participate in the policy and decisionmaking 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, the contract 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 bargaining Consti., Art. 13, sec. 3 . The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to selforganization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, 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

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agreement, and executing a contract incorporating such an agreement, if requested by either party. 2. PARTIES TO COLLECTIVE BARGAINING Basically: (a) the employer, as represented by the members of the Management panel; and (b) the employees, as represented by the union certified as the exclusive bargaining agent/representative in a certification election called for such purpose. Note 1: The duty to bargain collectively exists only between the employer and the employees . Hence, in the case of Planters Products Employees Union vs. Planters Products where a company employed an independent contractor who had his own employees assigned to the plant, the unionized contract workers cannot demand for collective bargaining with the company, inasmuch as they are employees of the contractor and not of the company. Note 2: As representative: regards the bargaining 3.2 3.1 Defined: Art. 252, Labor Code. Meaning of duty to bargain collectively. -- The duty to bargain collectively means THE PERFORMANCE OF A MUTUAL OBLIGATION TO MEET AND CONVENE PROMPTLY AND EXPEDITIOUSLY IN GOOD FAITH FOR THE PURPOSE OF NEGOTIATING AN AGREEMENT WITH RESPECT TO THE WAGES, HOURS OF WORK AND ALL OTHER TERMS AND CONDITIONS OF EMPLOYMENT including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party, but such duty does not compel any party to agree to a proposal or to make any concession. Kiok Loy vs. NLRC, supra. Sweden Ice cream company, with an already certified union. Company given CBA proposals and request for counterproposal. Company ignored the request. Union filed a case for ULP after notice of strike. NLRC for Union and declared the proposals as the CBA. When duty to bargain exists/begins a) In the absence of a CBA Art. 251, Labor Code. 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 the employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. b) With the existence of a CBA - only during freedom period Art. 253, Labor Code. Duty to bargain collectively when there exists a collective bargaining agreement. -- When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. HOWEVER, EITHER PARTY CAN SERVE A WRITTEN NOTICE TO TERMINATE OR MODIFY THE AGREEMENT AT LEAST SIXTY (60) DAYS PRIOR TO ITS EXPIRATION DATE. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.

(a) The union representative need not be an employee in the unit. However, the union officer must an employee in the unit. (Example: Union which is certified as the exclusive bargaining agent may be represented by the officers of the federation to which it is affiliated, during the collective bargaining negotiations.) (b) The union that gets the majority vote in a certification election, once it is certified as the exclusive bargaining agent, does not act for its members alone. It represents all the employees in the bargaining unit. (Mactan Workers Union vs. Aboitiz). Definition of the appropriate bargaining unit Dept. Order No. 9 (April 1997), Rule I, Sec. 1 (q) Bargaining unit refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. 2.1

MEANING OF DUTY TO BARGAIN (in organized and unorganized establishments)

3. Duty to bargain collectively

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Note 1. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate or modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least 60 days prior to the expiration day. It shall be the duty of each party to keep the status quo and to continue in full force and effect the terms and conditions of the existing CBA during the 60-day period, and/or until a new agreement is reached by the parties. Note 2: As regards CBA about to expire, the law provides for an AUTOMATIC RENEWAL CLAUSE, e.g., that the terms and conditions of the existing CBA shall continue to be in full force and effect during the sixty-day freedom period (Union of Filipro Ees. vs. NLRC, 192 SCRA 414) , or until a new CBA is reached. Thus, depiste the lapse of the effectivity of the old CBA, the law considers the same as continuing in full force and effect until a new CBA is executed. (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 employer and the employees/union. 3.3 Effect of refusal to bargain - constitutes ULP under Art. 248 (g) Art. 248 (g), Labor Code. Unfair labor practices of employers. -- To violate the duty to bargain collectively as prescribed by this Code. If the employer is guilty of violating the duty to bargain collectively in good faith, the employer may be held guilty of ULP under Art. 258 (g). Furthermore, the unions draft CBA proposals may unilaterally be imposed upon the employer as the collective bargaining agreement to govern their relationship. Hence, the case of Divine Word. Divine Word Univ. vs. NLRC, 213 SCRA 759 Petitioners contention that the Unions proposal may not be unilaterally imposed on it on the ground that a CBA is a contract where in the consent of both parties is indispensable, is devoid of merit. A similar argument has already been disregarded in the case of KIOK LOY, where the SC upheld the order of the NLRC declaring the unions draft CBA proposal as the collective agreement 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 its bargaining proposals; (b) the University made no counterproposal whatsoever. As stated in Kiok Loy, a companys refusal to make counter proposals, if considered in relation to the entire bargaining process, may indicate bad faith, and this is especially true where the Unions request for the counter-proposal is left unanswered. While it is not obligatory for either party to precipitately accept or agree to the proposals of the other, an erring party should not be tolerated and allowed with impunity to resort to schemes feigning negotiations by going through empty gestures. Hence, Divine Word may not validly assert that its consent should 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 have asserted as an employer. When duty to bargain ceases 1. 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 in the unit B. COLLECTIVE BARGAINING NEGOTIATIONS A PRACTICAL GUIDE IN HANDLING CBA NEGOTIATIONS As had been intimated earlier, the constitutional guarantee of the workers right to collective bargaining is an implicit cognizance of the inherent inequality in the economic relationship between labor and management. Management controls and owns the capital, the disposition and direction of which 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 is no gainsaying the fact that without the workers efforts, profits could not be had. Thus, it is but just that they should be given their equitable share in the profits. In the context of a depressed economy such as ours, and the lack of employment opportunities, employer-employee relationships may thus be subject to abuses by management. Hence, the State regulates the relationship through the promulgation and implementation of laws which are intended to protect the interests of labor. One such right is thus collective bargaining. 1. Submission of Proposals As intimated earlier, collective bargaining allows for a means toward the ideal laissez faire condition, where the employees stand on a more or 3.4

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less equal footing with the employer, in threshing out the conditions and terms of their employment. It is in pursuance of the better terms and conditions of their employment that the Union would seek vast improvements therein. Thus, in the submission of their proposals, the Union usually maximizes their proposals (SUNTOK SA BUWAN), in cognizance that these proposals will usually be whittled down during the negotiation proper. On the other hand, the Company will usually maintain a very conservative stand. In the context of its quest for profits, the Company will as much as possible not want to give anything more than that which is mandated by law. Thus, this is where the bargaining power and the relative strength of the Union comes in. This is in turn, backed up by its constitutional rights to strike and to undertake concerted activities --- but note that this must all be done in accordance with law. 2. Composition of Panels; requirements 2.1 Appointment of the members of the respective panels; by whose authority For the management panel : by authority of the President or the Board of Directors/Trustees, depending upon the By-laws of the corporation. Usually, Board of Directors/Trustees give authority by way of a resolution passed and approved during a regular meeting, there being a quorum to transact business. For the union panel: usually the officers of the union are members of the panel, duly given authority by their own Board. 2.2 Presentation of the appropriate Special Power of Attorney 2.3 Identification of Chairman and Recorder Chairman: note that it is only the chairman that can bind their respective panel. Recorder: to ensure the recording of the minutes of each meeting or conference. The minutes are useful later, in case there arises a question of the interpretation and/or implementation of the CBA provisions. The quorum for business to be transacted shall be at least: (a) three [3] members for the Management Panel; and (b) three [3] members for the Union Panel. Postponement It may be agreed by both panels that should a postponement be necessary, to inform the other panel, in writing, of such postponement within twenty four (24) hours. Should the Union request for a postponement, such notice should be addressed to Chairman or Recorder of the Management panel; should the Management request for a postponement, such notice should be addressed to the President of the Union or the recorder. Recording of the Minutes Both panels should appoint their respective recording secretary. (The recording secretary for the Institute shall be Ms. Rosanna Roces, while the recording secretary for the Union panel shall be Ms. Ara Mina). Both recording secretaries shall consult with each other and make the common minutes for the past meeting. Mechanics: The Union recording secretary may fax their minutes to the Management recording secretary who will make the common minutes. The common minutes must be faxed at least one (1) day immediately prior to the next scheduled meeting, in order that the Union may review the same. Signing of the Common Minutes The common minutes should all be signed before the actual start of the negotiations . Hence, any correction, amendments or modifications to the common minutes must be made prior to the start of the negotiations. Order of Discussion or Negotiations Both panels may agree to discuss non-economic provisions first (inclusive of political and union rights), prior to the discussion on all economic provisions. OR Both panels may agree to follow the order provided in the Working Documents (CBA 1996) in accordance with the above priority. Setting of the Agenda In order that the discussions per meeting will be both fast and productive, both panel should agree that before adjournment of each meeting, that they will enumerate the agenda for discussion on the next meeting. Related expenses It was agreed that expenses for the collective bargaining negotiations pertaining to merienda, shall be for the account of the Management.

3.3

3.4

3.5

3.6

3. Determination of ground rules (on 1st mtg. 3.1 What will be considered as Working Documents e.g., Existing CBA and the proposals of Union The following documents may considered as the working documents of the CBA negotiations: (a) Original CBA; (b) Proposals of the Union for a new CBA; and (c) Counter-proposals of the Management shall be considered as references. 3.2 Quorum

3.7

3.8

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Recess Recess during negotiations shall be allowed upon request of either panel. 3.10 Venue, frequency and time of meetings Usually better to set it at a particular day and time, e.g., every Friday at 10:00 a.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 necessary under the circumstances. 4. What are Bargainable Issues - Art. 252, LC Art. 252, Labor Code. Meaning of duty to bargain collectively. -- The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to the wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party, but such duty does not compel any party to agree to a proposal or to make any concession. 4.1 Mandatory Subjects a. As regards minimum standards provided by the Labor Code 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 bargaining between the parties. Included therein is the question of minimum wages. It is understandable why it is so. For legislation of that character proceeds from the premise that THERE IS A FLOOR BELOW WHICH THE AMOUNT PAID LABOR SHOULD NOT FALL. That is to assrue decent living conditions. Such an enactment is compoulsory in nature; not even the consent of the employees themselves suffices to defeat its operation. MORE PLAINLY PUT, THE QUESTION OF MINIMUM WAGES IS NOT NEGOTIABLE. What the law decrees must be obeyed. It is as simple as that. NOTE: By entering into a sub-minimum contract, there arises a cause of action on the part of the affected employees to DECERTIFY the Union (Article 239, LC). Nestle Phils. vs. NLRC, 193 SCRA 504 (1991) The companys contention that the retirement plan being noncontributory and hence, non-negotiable, is not well-taken. The NLRC correctly observed that the inclusion of the retirement plan in the CBA as part of the package of economic benefits 3.9 extended by the company to its employees to provide them a measure of financial security after they shall have ceased to be employed in the company, reward their loyalty, boost their morale and efficiency, and promote industrial peace, gives a consensual character to the plan so that it may not be terminated 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 of the plan) does not make it a non-issue in CBA negotiations. As a matter of fact, almost all of the benefits which the company has granted to its employees are non-contributory, such as salary increases, rice allowances, mid-year bonuses, 13 th and 14th month pay, seniority pay, medical and hospitalization plans, health and dental services, vacation, sick and other leaves with pay, are non-contributory. b. Grievance procedure and voluntary arbitration The 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 considered as a grievance. If the definition includes ULP as subject to the grievance procedure, a strike in violation of its terms will be illegal. PROCEDURE UNDER THE LAW AFTER GRIEVANCE MACHINERY PLANT LEVEL: Under the Labor Code, all grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the CBA (Art. 260, LC). For this purpose, parties to a CBA shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such VA or panel of VAs, preferably from a listing of qualified VAs duly accredited by the Board. The VA or panel of VAs shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies. Violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the CBA. Gross violations of the CBA shall mean flagrant and/or

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malicious refusal to comply with the economic provisions of the agreement (Art. 260, LC). The Commission, its Regional Offices and the Regional Directors of the Department of Labor & Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the VA or VA panel and shall immediately 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 also hear and decide all other labor disputes including unfair labor practices (ULPs) and bargaining deadlocks (Art. 262, LC). The VA shall have the power to hold hearings, receive evidence and take whatever action is necessary to resolve the issue/s subject to the dispute, including efforts to effect a voluntary settlement between the parties. All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any third party or the exclusion of any witness from the proceedings shall be determined by the VA or VA panel. Hearings may be adjourned 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 within 20 calendar days from the date of submission of the dispute to VA. c. union dues, special assessment Art. 241, Labor Code. Rights and conditions of membership in 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 money or 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 be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose; (n) No special assessment or other extraordinary fees may be levied upon the members 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 the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record 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 checked off from any amount due to an employee, without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction, if any. xxx Any violation of the above rights and conditions of membership shall be a ground for the cancellation of union registration or expulsion of officer from office, whichever is appropriate. At least thirty percent (30%) of all the members of a union or any member or members specifically concerned may report such violation to the Bureau. xxx Art. 222 (b), Labor Code. Appearances and fees. -- (b) No attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining negotiations or conclusion of the collective agreement shall be imposed on any individual member of the contracting union; Provided, however, that attorneys fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. Palacol vs. Calleja, 26 Feb. 1990 THE SPECIAL ASSESSMENT IN THIS CASE WAS DECLARED INVALID. A special assessment cannot be validly deducted by the Union certified as coll. barg. agent from the lump-sum pay of its members granted under the CBA, especially so that there had been subsequent disauthorizations by the majority of the union members, and that the procedure for imposition of special assessment provided by the Labor Code was not followed. Special assessment was for purposes of putting up a cooperative and credit union, for purchase of vehicles and other items needed for the benefit of the officers and general membership, and for payment of services rendered by union members. Allocation thereof at discretion of Union President. The Union, contrary to the legal procedure, held local membership meetings on different occasion, on different dates and various venues. It submitted only minutes of said meetings when what is required is a written resolution adopted at the general meeting. Worse, only a union director recorded the minutes and not the secretary, no record of votes or list of members present. d. No Strike - No Lock-out clause Example: MANAGEMENT and UNION agree that the way to preserve job security and improve the welfare of the employees is to increase the goodwill xxx. It is therefore to the mutual interest 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, walkouts, stoppage, slowdown, boycotts, xxx whether sympathetic or general, during the effectivity of this CBA. 2. MANAGEMENT agrees that there shall be no lockout during the effectivity of this CBA. The No Strike-No Lockout Clause is not an infringement or undue restriction of the constitutional right to strike, because said clause is applicable only to ECONOMIC STRIKES, but not to ULP strikes. In other words, even during the effectivity of the CBA, the Union may still strike if the company commits ULP as enumerated 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 to economic strikes, and not to ULP strike. (Phil. Metal Foundries case). Exception: (but this is no longer controlling ; already overturned and modified by the new rules which reverts back to the Phil. Metal Foundries case) When the CBA provides for a conclusive arbitration clause, in which case, even ULP strikes are subject to the no-strike no lock-out clause. (Union of Filipro vs. Nestle Phils.) Other non-mandatory subjects a. Management prerogatives clause The above provisions notwithstanding, MANAGEMENT is not precluded from exercising its management prerogatives, including but not limited to the exclusive right to hire and appoint employees subject to such reasonable rules and regulations it may prescribe, to transfer, demote, suspend, lay-off, dismiss or impose any form of disciplinary action upon its employees, or such other matters relative to the conduct of the business of the company. b. Union security clauses (union shop/closed shop, etc.) Example 1: MANAGEMENT agrees to require as a condition of employment for those employees within the bargaining unit who are either members of the ABC FEDERATION on the date of the effectivity of this CBA, or may join the union during the effectivity of this Agreement, and that they shall not voluntarily resign from the union earlier than 60 days prior to expiration of this Agreement. xxx Example 2: Section 1. Employees of the COMPANY who at the signing of this Agreement are members of the UNION and those who subsequently become members thereof shall maintain their membership with the UNION for the duration 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 of resignation or expulsion shall not be retained in the employment of the COMPANY. NOTE: A Union security clause cannot have any retroactive effect under Article 248 of the Labor Code, and as such, will not apply to employees who are already members of another union at the time of the effectivity of the CBA. ART. 248. Unfair labor practices of employers. - It shall be unlawful for an employer to commit any of the following unfair labor practice: xxx (e) To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the nonmembers of the recognized collective bargaining agent; c. Signing bonus: Caltex Refinery Assn. vs. Brillantes, 279 SCRA 218 Although proposed by petitioner UNION, the signing bonus was not accepted by the Company. Besides, a signing bonus is not a benefit which may be demanded under the law. Rather, it is now claimed by petitioner Union under the principle of maintenance of existing benefits of the old CBA. However, as clearly explained by the respondent Company, a signing bonus may not be

4.2

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demanded as a matter of right. If it is not agreed upon by the parties, or unilaterally offered as an additional incentive by the company, the condition for awarding it must be duly satisfied . In the present case, the condition sine qua non for its grant a non-strike was not complied with. 5. Bargaining Deadlock 5.1 When is there a deadlock in collective bargaining Deadlock is defined as the counteraction of things producing an entire stoppage; a state of inaction or of neutralizaiton caused by the opposition of persons or factions; STANDSTILL. During negotiations, it is a situation where both parties have reached a point beyond which there is no longer any compromise, e.g., unacceptable. The word is synonymous to an impasse, which in labor relations law, presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in an agreement between the parties. Capitol Medical Center Alliance of Concerned Employees vs. Laguesma, 267 SCRA 503 (1997) In the case of Divine Word University of Tacloban vs. Secretary of Labor and Employment, we had the occasion to define what a deadlock is, viz: A deadlock is xxx the counterclaim of things producing entire stoppage; xxx. There is a deadlock when there is a complete blocking or stoppage resulting from the action of equal and opposed forces xxx. The word is synonymous with the word impasse, which xxx presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties. If the law proscribes the conduct of a certification election when there is a bargaining deadlock submitted to conciliation or arbitration, with more reason should it not be conducted if, despite attempts to bring an employer to the negotiation table by the certified bargaining agent, there was no reasonable effort in good faith on the part of the employer to bargain collectively. This is what is strikingly different between the Kaisahan case and the case at bench for in the latter case, there was proof that the certified bargaining agent, respondent union, had taken an action to legally coerce the employer to comply with its statutory duty to bargain collectively, i.e., charging the employer with unfair labor practice and conducting a strike in protest against the employer' refusal to bargain. It is only just and equitable that the circumstances in this case should be considered as similar in nature to a bargaining deadlock when no certification election could be held. This is also to make sure that no floodgates will be opened for the circumvention of the law by unscrupulous employers to prevent any certified bargaining agent from negotiating a CBA. THUS, SECTION 3, RULE V, BOOK V OF THE IMPLEMENTING RULES SHOULD BE INTERPRETED LIBERALLY 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 ITS DUTY TO BARGAIN COLLECTIVELY. Remedies - Notice of strike or notice of lock-out 30-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 duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lock-out with the Ministry (Department) at least 30 days before the intended date thereof . In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the 15-day cooling off period shall not apply, and the union may take action accordingly. (f) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. Xxx The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was considered. Xxx. In every case, the union or the employer shall furnish the (Department) the results of the volting at least seven days before the intended date of strike or lockout, subject to the cooling-off period herein provided.

5.2

C.

COLLECTIVE BARGAINING AGREEMENT

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1. Definition Dept. Order No. 9, Rule I. Definition of terms. (pp) Collective bargaining agreement refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit. B5 R1 S1 (jj), Impl. Rules and Regulations . Collective bargaining agreement refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory 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 is applied the principles of law governing ordinary contracts. A CBA, as a labor contract within contemplation of Art. 1700 of the Civil Code, is not merely contractual in nature but is impressed with public interest. Thus, it must yield to the common good . As such, 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 ratification 2.1 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 the same. 2.3 Note the posting requirement in at least two conspicuous places in the establishment at least five (5) days before its ratification 2.4 If certified CBA, contract bar rule applies and operates as a bar to a representation question. 2.5 Note however that a CBA is valid even without certification, and will be considered as binding upon the parties. places in the work place and of ratification by the majority of all the workers of the bargaining unit. Such proof shall consist of copies of the following documents certified 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 agreement for its file and transmit one (1) copy thereof tot he Bureau within five (5) calendar days from its registration. The Regional Office shall issue a certification of registration within five (5) calendar days from receipt of the agreement and the proofs of posting and ratification as required herein. Section 2. Registration of agreement resulting from awards by the 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 be dispensed with. Section 5. Appeal. -- The decision of the Regional Director granting or denying an action to declare the registration ineffectual may be appealed to the Bureau on the ground of grave abuse of discretion within ten (10) days from receipt of the parties of a copy thereof. The Bureau shall have twenty (20) dyas within which to resolve the appeal and its decision shall be final and executory. Art. 231, Labor Code . Registry of unions and file of collective agreements. -- The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a file of all collective bargaining agreements and other related agreements and records of settlement of labor disputes, and copies of orders, and decisions of voluntary arbitrators. The files shall be open and accessible to interested parties subject to conditions prescribed by the Secretary of Labor and Employment, provided that no specific information submitted in confidence shall be disclosed unless authorized by the Secretary, or when it is at issue in any judicial litigation or when public interest or national security so requires. xxx 4. Scope of the agreement; who may avail of benefits -

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

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Natl. Brewers and Allied Industries Labor Union vs. San Miguel Brewery All employees in the barg. unit are covered, regardless of their membership 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. 3 All other provisions of said agreement shall, as a matter of right, be renegotiated not later than three (3) years after its execution. 5.2 Representation question and the contract-bar rule Dept. Order No. 9, Rule XIV, secs. 3-4 Section 3. Term of representation status of agreement; contractbar rule. -- The representation status of the incumbent exclusive bargaining representative which is a party to a duly registered collective bargaining agreement shall be for a term of five (5) years. (CONTRACT BAR RULE) NO PETITION QUESTIONING THE MAJORITY STATUS OF THE INCUMBENT EXCLUSIVE BARGAINING REPRESENTATIVE SHALL BE ENTERTAINED AND NO CERTIFICATION ELECTION SHALL BE CONDUCTED BY THE DEPARTMENT OUTSIDE OF THE SIXTY-DAY PERIOD IMMEDIATELY BEFORE THE DATE OF EXPIRY OF SUCH FIVE-YEAR TERM. Section 4. Exception to the contract bar rule. Notwithstanding its registration, a collective bargaining agreement shall not constitute a bar to a certification election where it is found in appropriate proceedings before the Regional Director that any of the following conditions exist: (a) The agreement contains provisions lower than the standards fixed by law; or (b) The documents supporting its registration are falsified, fraudulent or tainted with misrepresentation. ALU vs. Ferrer-Calleja, 173 SCRA 178 CONTRACT 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 has been posted in at least 2 conspicuous places in the company at least 5 days prior to the ratification, and that the same was ratified by a majority of the members of the union. Perusal of the facts show that the CBA was defective, and hence unproductive of the legal effects of a certified CBA. Note that the Labor unions representation was in itself questionable, and that there was precipitate haste in recognizing the union based on an unsubstantiated and self-serving claim that it represented the majority 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, the representation issue may be questioned by another union. 5.3 Retroactivity Dept. Order No. 9, Rule XIV, sec. 3 Any agreement on such other provisions entered into within six (6) months from the date of expiry of such provisions shall retroact to the day immediately following such date. If any such provisions are entered into beyond six months, the parties shall agree on the duration of retroactivity . In case of a deadlock in the renegotiation of the agreement, the parties may exercise their rights under the Code. In case of renegotiation, all requirements for registration prescribed under the two immediately preceding sections shall be complied with, whichever is applicable, except payment of the registration fee. Union of Filipro Employees vs. NLRC, 192 SCRA 397, at 425 In the aforecited case, the Court only pointed out that, it is not right for union members to argue that they cannot be covered by the past and the new CBAs both containing the same closed-shop agreement for acts committed during the interregnum. What as emphasized by this Court is that in no case should there be a period in which no agreement would govern at all. But nowhere in the said pronouncement did We rule that every CBA contracted after the expiry date of the previous CBA must retroact to the day following such date . Hence, it is proper to rule that in the case at bar, the clear and unmistakable terms of Articles 253 and 253-A must be deemed controlling. Articles 253 and 253-A mandate the parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period 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 automatic renewal clause provided for by the law which is deemed incorporated in all CBAs, provides the reason why the new CBA can only be given a prospective effect. Petitioner claims that because of the prospective effect of the CBA, union members were deprived of substantial amount of monetary benefits which they could have enjoyed had the CBA be given

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retroactive effect. This would include backwages, the immediate effects of the mandated wage increase on the fringe benefits such as the 13th and 14th month pay, overtime premium, and right to differential pay, leaves, etc. This Court, is not unmindful of these. Nevertheless, We are convinced that the CBA formulated by public respondent is fair, reasonable and just. Even if prospective in effect, said CBA still entitles the Nestle workers and employees reasonable compensation and benefits which, in the opinion of this Court, is one of the highest, if not the highest in the industry. Petitioner did not succeed in overcoming the presumption of regularity in the performance of the public respondents functions. Even if the resolution fell short of meeting the numerous demands of the union, the petitioner failed to establish that public respondent committed grave abuse of discretion in not giving the CBA a retrospective effect. 6. Violations of the CBA (Art. 261) Question: Is the violation of the CBA provisions a ULP as to allow the union to strike? Answer: It depends on whether the violation is gross in character or not. If gross, then ULP and the union may strike. If not gross, then non-strikeable and must be referred to the grievance machinery. Hence: 6.1 Generally: Grievances arising from interpretation or implementation of the CBA is no longer considered ULP and hence, non-strikeable. Must be referred to grievance machinery and voluntary arbitrators 6.2 Strikeable issue when there is gross and flagrant refusal to comply with the economic provisions of the CBA Article 261, Labor Code . Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. -- The Voluntary Arbitrator or panel of voluntary arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practices and shall be resolved as reviances under the Collective Bargaining Agreement. For purposes of this article, gross violations of the Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the Exception: economic provisions of such agreement.

7. Substitutionary Doctrine Benguet Consolidated vs. BCI Ees Union, 23 SCRA 465 The employees cannot revoke the validly executed CBA with their employer by the simple expedient of changing their bargaining representative. The CBA is binding for the period specified therein, but the new agent may bargain for the shortening of the period. But the substitutionary doctrine applies only to the employees of the unit, not to the new agent which is not bound by the purely personal undertakings of the displaced agent like the no-strike clause in the CBA. 8. Effect: (w/ respect to successor-employer) General rule: An innocent transferee of a business concern has no liability to the employees either with respect to continuing them in employment or with respect to the past ULP of previous owner. Exceptions to above general rule: a) By virtue of obligations assumed under the contract. b) Liability arises because of new owners participation in defeating the rights of the employees. In such instance, he is treated as in the same position of a tortfeasor. E. Razon vs. Secretary of Labor, 222 SCRA 1 A CBA is a contract in personam, and therefore, not enforceable against the successor-employer. In rehiring the workers of the old employer, the successoremployer has the right to consider them as new employees. The old employer, to whom years of service had been rendered by its suddenly jobless employees, had the corresponding obligation to pay them their respective separation pay. _________________________ QUESTIONS AND ANSWERS ON CBA Q: When does the duty of the employer (Er) to bargain collectively arise? A: Only after the union requests the Er to bargain. If there is no demand, the Er cannot be in default. Note: Where a majority representative has been designated, it is an ULP for the Er, as a refusal to collectively bargain, to deal and negotiate with the minority representative to the exclusion of the majority representative. Where there is a legitimate representation issue, there is no duty to bargain collectively on the part of the Er (Lakas ng mga Manggagawang Makabayan v. Marcelo Enterprises, G.R. No. L38258, Nov. 19, 1982) Q: What is a collective bargaining agreement (CBA)?

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A: 1. Preliminary process: Sending a written notice for negotiation which must be clear and unequivocal 2. Negotiation process. 3. Execution process: The signing of the agreement 4. Publication for at least 5 days before ratification 5. Ratification by the majority of all the workers in the bargaining unit represented in the negotiation (not necessary in case of arbitral award) 6. Registration process. 7. Administration process: The CBA shall be jointly administered by the management and the bargaining agent for a period of 5 years. 8. Interpretation and Application process. Q: Does a petition for cancellation of a unions certificate of registration involve a prejudicial question that should first be settled before parties could be required to collectively bargain? A: No. A pending cancellation proceeding is not a bar to set mechanics for collective bargaining (CB). If a certification election may still be held even if a petition for cancellation of a unions registration is pending, more so that the CB process may proceed. The majority status of the union 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 employment 3. Including proposals for adjusting any grievances or questions arising under such agreement; and 4. To execute a contract incorporating such agreements if requested by either 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 make any concession. 2. Parties cannot stipulate terms and conditions of employment which are below the minimum reqts prescribed by law. Q: May either party bargain to an impasse? A: It depends:

A: It is a contract executed upon request of either the Er or the exclusive bargaining representative of the Ees incorporating the agreement reached after negotiations with respect to wages, hours of work, terms and conditions of employment, including proposals for adjusting any grievance or questions under the agreement. . Note: The certification of the CBA by the BLR is not required to make such contract 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 been negotiated upon but not contained in the CBA cannot be raised for negotiation when the CBA is already in effect. A CBA is not an ordinary contract but one impressed with public interest, only provisions 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, it is not a part thereof and the proponent has no claim whatsoever to its implementation. (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 of the 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 of proposals 2. Reply by the other party shall be made within 10 days with counter proposals 3. In case of differences, either party may request for a conference which must be held within 10 calendar days from receipt of request 4. If not settled, NCMB may intervene and encourage the parties to submit the dispute to a voluntary arbitrator 5. If not resolved, the parties may resort to any other lawful means (either to settle the dispute or submit it to a voluntary arbitrator). Note: During the conciliation proceeding in the NCMB, the parties are prohibited from doing any act which may disrupt or impede the early settlement of disputes. (Art.250[d], LC) Q: What are the stages in CB?

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1. Where the subject of a dispute is a mandatory bargaining subject, either party may bargain to an impasse as long as he bargains in GF. 2. Where the subject is nonmandatory, a party may not insist in bargaining to the point of impasse. His instance may be construed as evasion of duty to bargain. Q: What is the test of bargaining in bad faith? A: There is no perfect test of good faith (GF) in bargaining. The GF or BF is an inference to be drawn from the facts and is largely a matter for the NLRCs expertise. The charge of BF should be raised while the bargaining is in progress. Note: With the execution of the CBA, BF can no longer be imputed upon any of the parties thereto. All provisions in the CBA are supposed to have been jointly and voluntarily incorporated therein by the parties. This is not a case where private respondent exhibited an indifferent attitude towards CB because the negotiations were not the unilateral activity of petitioner union. The CBA is good enough that private respondent exerted reasonable effort of GF bargaining. (Samahang Manggagawa sa Top Form ManufacturingUnited Workers of the Phils v. NLRC, G.R. No. 113856, Sept. 7, 1998) Q: Does an Ers steadfast insistence to exclude a particular substantive provision in the negotiations for a CBA constitute refusal to bargain or bargaining in BF? A: No. This is no different from a bargaining representatives perseverance to include one that they deem of absolute necessity. Indeed, an adamant insistence on a bargaining position to the point where the negotiations reach an impasse does not establish bad faith. Obviously, the purpose of CB is the reaching of an agreement resulting in a contract binding on the parties; but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an agreement. While the law makes it an obligation for the Er and the Ees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement. (Union of Filipro Ees v. Nestle Phils., G.R. Nos. 15893031, Mar. 3, 2008) Q: What is a deadlock? A: It is synonymous with impasse or a standstill which presupposes reasonable effort at GF bargaining but despite noble intentions does not conclude an agreement between the parties. Q: In case of deadlock in the renegotiation of the CBA, what are the actions that may be taken by the parties? A: The parties may: 1. Call upon the NCMB to intervene for the purpose of conducting conciliation or preventive mediation; 2. Refer the matter for voluntary arbitration or compulsory arbitration; 3. Declare a strike or lockout upon compliance with the legal reqts (This remedy is a remedy of last resort). Q: May economic exigencies justify refusal to bargain? A: No. An employer is not guilty of refusal to bargain by adamantly rejecting the unions economic demands where he is operating at a loss, on a low profit margin, or in a depressed industry, as long as he continues to negotiate. But financial hardship constitutes no excuse for refusing to bargain collectively. Q: What is the duty to bargain collectively when there is a CBA? A: 1. When there is a CBA the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. 2. Either party can serve a written notice to terminate or modify the agreement at least 60 days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions

of the existing agreement during the 60day period and/or until a new agreement is reached by the parties. (Art. 253, LC)
Q: What is the automatic renewal clause of CBAs? A: Although a CBA has expired, it continues to have legal effects as between the parties until a new CBA has been entered into (Pier & Arrastre Stevedoring Services, Inc. v. Confessor, G.R. No. 110854, February 13, 1995). This is so because the law makes it a duty of the parties to keep the status quo and to continue in full effect the terms and conditions of the existing agreement until a new agreement is reached by the parties. (Art. 253, LC). (2008 Bar Question) Q: What may be done during the 60day freedom period? A: 1. A labor union may disaffiliate from the mother union to form a local or independent union only during the 60day freedom period immediately preceding the expiration of the CBA. 2. Either party can serve a written notice to terminate or modify agreement at least 60days prior to its expiration period. 3. A petition for certification election may be filed.

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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 and 2 duplicate copies of the following reqts: 1. CBA 2. A statement that the CBA was posted in at least 2 conspicuous places in the establishment concerned for at least 5 days before its ratification 3. Statement that the CBA was ratified by the majority of the Ees in the bargaining unit. Note: The following documents must be certified under oath by the representative of the Er and the labor union. No other document shall be required in the registration of the CBA. Q: What is a single enterprise bargaining? A: It involves negotiation between one certified labor union and one Er. Any voluntarily recognized or certified labor union may demand negotiations with its Er for terms and conditions of work covering Ees in the bargaining unit concerned. Q: What is a multiEr bargaining scheme? A: It involves negotiation between and among several certified labor unions and Ers. Q: What is the duration of a CBA? A: 1. With respect to the representation aspect (refers to the identity and majority status of the union that negotiated the CBA as the exclusive bargaining representative): 5 years 2. With respect to all other provisions (refers to the rest of the CBA, economic as well as noneconomic provisions other than representational provisions): 3 years after the execution of the CBA Q: What are the economic provisions of a CBA? A: 1. Wages 2. Family planning 3. Effectivity of the agreement 4. Other terms and conditions of employment Q: What are the noneconomic provisions of a CBA? A: 1. Coverage of the bargaining unit 2. Union security clauses 3. 4. 5. Management prerogatives and/or rights/responsibilities of employees Grievance machinery and voluntary arbitration No strike no lock out provision

Q: What is the effectivity and retroactivity date of other economic provisions of the CBA? A: 1. If the CBA is the very first for the bargaining unit, the parties have to decide the CBA effectivity date. 2. Those made within 6 months after date of expiry of the CBA are subject to 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 of retroaction. Note: This rule applies only if there is an existing agreement. If there is no existing agreement, there is no retroactive effect because the date agreed upon shall be the start of the period of agreement. Art. 253A on retroactivity does not apply if the provisions were imposed by the SLE by virtue of arbitration. It applies only if the agreement was voluntarily made by the parties. Q: May the economic provisions of an existing CBA be extended beyond the 3 year period as prescribed by law in the absence of a new agreement? A: Yes. Under the principle of hold over, until a new CBA has been executed by and between the parties, they are duty bound to keep the status quo and must continue in full force and effect the terms and conditions of the existing agreement. The law does not provide for any exception or qualification as to which of the economic provisions of the existing agreement are to retain force and effect. Therefore, it must be encompassing all the terms and condition in the said agreement. (New Pacific Timber v. NLRC, G.R. No. 124224, Mar. 17, 2000) Q: Mindanao Terminal Company and respondent union has an existing CBA which was about to expire. Thus, negotiations were held regarding certain provisions of the CBA which resulted in a deadlock. Thus the union filed a notice of strike. During the conference called by the NCMB the company and the union were able to agree on all of the provisions of the CBA except for one. However, the last unresolved provision was subsequently settled but no CBA was signed. Hence, in the records of the Mediation Arbiter, all issues were settled before the lapse of the 6 month period after the expiration of the old CBA. Does the signing of the CBA determine 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 was entered into within the 6 month period from the date of expiration of the old CBA. In the present case, there was already a meeting of the minds between the company and the union prior to the end of the 6 month period after the expiration of the old CBA. Hence, such meeting of the mind is sufficient to conclude that an agreement has been reached within the 6 month period as provided 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 6 months from the expiration of the old CBA? A: The CBA arbitral awards granted 6 months from the expiration of the last CBA shall retroact to such time agreed upon by both the Er and the union. Absent such agreement as to retroactivity, the award shall retroact to the 1st day after the 6 month period following the expiration of the last day of the CBA should there be one. In the absence of a CBA, the SLEs determination of the date of retroactivity 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 a retrenchment 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 the union refused. Thus, PAL claimed it has no alternative left but to close. Hence, the union PALEA offered that the CBA be suspended for 10 years and to waive some of the economic benefits in the CBA provided they remain the certified bargaining agent. PAL agreed and resumed operations. Is the agreement to suspend the CBA for 10 years abdicated the workers right to bargain? A: No. The primary purpose of a CBA is to stabilize labormanagement relations in order to create a climate of a sound and stable industrial peace. The assailed agreement was the result of the voluntary CB negotiations undertaken in the light 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 and predictability and b) to assign specific time tables wherein negotiations become a matter of right and requirement. In so far as the first purpose, the agreement satisfies the first purpose. As regard the second purpose, nothing in Art. 253 A prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same. Q: Does the agreement violate the 5 year representation limit as provided under Art. 253A of the LC? A: No. For under the said article, the representation limit of the exclusive bargaining agent applies only when there is an existing CBA in full force and effect. In this case, the parties agreed to suspend the CBA and put in abeyance the 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. 2. 3. 4. 5. 6. 7. Grievance machinery Voluntary arbitration Wages Hours of work Family planning Rates of pay Mutual observance clause

Note: In addition, the BLR requires the CBA should include a clear statement of the terms of the CBA. Ers duty to bargain is limited to mandatory bargaining subjects; as to other matters, he is free to bargain or not Q: How are cases arising from the Interpretation or implementation of CBAs handled and disposed? A: They are disposed through the grievance machinery and if not resolved by the grievance machinery, through voluntary arbitration. (1995 Bar Question) Q: How are cases arising from the Interpretation or implementation of CBAs handled and disposed? A: They are disposed through the grievance machinery and if not resolved by the grievance machinery, through voluntary arbitration. (1995 Bar Question) Q: What is grievance? A: It is any question by either the employer or the union regarding the interpretation or implementation of any provision of the CBA or interpretation or enforcement 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 and b. 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 grievances arising from the interpretation or enforcement of company personnel policies. It is part of the continuing process of collective bargaining (CB ). Note: It is a must provision in any CBA and no collective agreement can be registered in the absence of such procedure. Q: How is grievance machinery established? A: 1. Agreement by the parties 2. A grievance committee composed of at least 2 representatives each from the members of the bargaining unit and the employer, unless otherwise agreed upon by the parties shall be created within 10 days from the signing of CBA Note: Although Art. 260 of the Labor Code mentions parties to a CBA, it does not mean that a grievance machinery cannot be set up in a CBA less enterprise. In any workplace where grievance can arise, a grievance machinery can be established. 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 the complainant and his immediate supervisor and ending, when necessary, at the level of the top union and company officials and with voluntary arbitration as the terminal step. Q: What will happen to grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of their submission? A: They shall automatically be referred to voluntary arbitration prescribed in the CBA. (Art. 260, par.2, Labor Code) Either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration (VA): 1. If the party upon whom such notice is served fails/refuses to respond within 7 days from receipt, VA/panel designated in the CBA shall commence arbitration proceedings 2. If the CBA does not designate or if the parties failed to name the VA/panel, the regional 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 the parties select a competent, trained and impartial third person who shall decide on the merits of the case and whose decision is final and executory . (Sec.1 [d], Rule II, NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration 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 are compelled by the government to forego their right to strike and are compelled to accept the resolution of their dispute through arbitration by a 3rd party. The essence of arbitration remains since a resolution of a dispute is arrived at by resort to a disinterested third party whose decision is final and binding on the parties, but in compulsory arbitration, such a third party is normally appointed by the government. Under voluntary arbitration, on the other hand, referral of a dispute by the parties is made, pursuant to a voluntary arbitration clause in their collective agreement, 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 is left to be done by both parties but to comply with the same. After all, they are presumed to have freely chosen arbitration as the mode of settlement for that particular dispute. Pursuant thereto, they have chosen a mutually acceptable arbitrator who shall hear and decide their case. Above all, they have mutually agreed to be bound by said arbitrator's decision . (Luzon Devt Bank v. Assn of 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 workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster 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 labor practice of the employer, a strike declared by the union cannot be considered a violation 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 labor management councils in organized and unorganized establishments to enable the workers to participate in policy and decision making processes in the establishment, insofar as said processes will directly affect their rights, benefits and welfare, except those which are covered by collective bargaining agreements or are traditional areas of bargaining. The Department shall promote other labormanagement cooperation schemes and, upon its own initiative or upon the request of both parties, may assist in the formulation and development of programs and projects on productivity, occupational safety and health, improvement of quality of work life, product quality 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 council shall be nominated by the exclusive bargaining representative. In establishments where no legitimate labor organization exists, the workers representative shall be elected directly by the employees at large. (Sec. 2, Rule XXI, Book V, IRR) _________________________ END 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 Labor Relations Commission FACTS: In a certification election held on October 3, 1978, the Pambansang Kilusang Paggawa (Union for short) was subsequently certified in a resolution dated November 29, 1978 by the Bureau of Labor Relations as the sole and exclusive bargaining agent of the rank-and-file employees of Sweden Ice Cream Plant (Company for short). The Company's motion for reconsideration of the said resolution was denied on January 25, 1978. December 7, 1978, the Union furnished the Company with two copies of its proposed collective bargaining agreement. It also requested the Company for its counter proposals. Both requests were ignored and remained unacted upon by the Company. The Union, on February 14, 1979, filed a "Notice of Strike", with the Bureau of Labor Relations (BLR) on ground of unresolved economic issues in collective bargaining. Conciliation proceedings then followed during the thirty-day statutory cooling-off period. The Bureau of Labor Relations to certify the case to the National Labor Relations Commission for compulsory arbitration. The labor arbiter set the initial hearing for April 29, 1979. For failure however, of the parties to submit their respective position papers as required, 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 discretion amounting to lack of jurisdiction in rendering the challenged decision. Petitioner further contends that the National Labor Relations Commission's finding of unfair labor practice for refusal to bargain is not supported by law

ISSUE/S: WON the respondent is guilty of unjustified refusal to bargain

HELD: YES unfair labor practice is committed when it is shown that the respondent employer, after having been served with a written bargaining proposal by the petitioning Union, did not even bother to submit an answer or reply to the said proposal Ratio Unfair labor practice is committed when it is shown that the respondent employer, after having been served with a written bargaining proposal by the petitioning Union, did not even bother to submit an answer or reply to the said proposal. Reasoning: Collective bargaining which is defined as negotiations towards a collective agreement, is one of the democratic frameworks under the New Labor Code, designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation. So much so that 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 good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing 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 jurisdictional preconditions are present, namely, (1) possession of the status of majority representation of the employees' representative in accordance with any of the means of selection or designation provided for by the Labor Code; (2) proof of majority 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 of negotiation, there can be no doubt that the Union has a valid cause to complain against its (Company's) attitude, the totality of which is indicative of the latter's disregard of, and failure to live up to, what is enjoined by the Labor Code to bargain in good faith. DISPOSITION: Petition dismissed _______________________ KIOK LOY (SWEDEN ICE CREAM PLANT) V NLRC, KILUSAN G.R. No. L-54334 CUEVAS; JAN 22 1986 NATURE Petition for CERTIORARI to annul the decision ofNLRC (w/c found petitioner guilty of ULP for unjustified refusal to bargain, in violation of par. (g) of Article 249 Labor Code, and declared the draft proposal of the KILUSAN for a collective bargaining agreement as the governing CBA bet the EEs and the mgt. FACTS - Pambansang Kilusan ng Paggawa (Kilusan), a legitimate labor federation, won cert election and was certified by the BLR as the sole and exclusive bargaining agent of the rank-and-file employees of Sweden Ice Cream Plant (Company). - Kilusan then gave the Company two copies of its proposed CBA. It requested the Company for its counter proposals. There was no response from Company. Kilusan again requested the Company for collective bargaining negotiations and for the Company to furnish them with its counter proposals. Both requests were ignored and remained unacted upon by the Company. -Kilusan on Feb 14, 1979, filed a "Notice of Strike", with the BLR on ground of unresolved economic issues in collective bargaining. -Conciliation proceedings followed but all attempts towards an amicable settlement 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 Companys counsel 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 draft proposal for a CBA was found to be reasonable under the premises, and declared to be the collective agreement w/c should govern the relationship between the parties. -Petitioner: its right to procedural due process has been violated when it was precluded from presenting further evidence in support of its stand and when its request for further postponement was denied. that the NLRCs finding of unfair labor practice for refusal to bargain is not supported by law and the evidence considering that it was only on May 24. 1979 when the Union furnished them with a copy of the proposed CBA and it was only then 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/S 1) WON companys right to due process has been violated 2) WON company is guilty of ULP 3) WON CBA is reasonable HELD 1) NO -Considering the various postponements granted in its behalf, the claimed denial of due process appeared totally bereft of any legal and factual support. As herein earlier stated, petitioner had not even honored respondent union with any reply to the latter's successive letters, all geared towards bringing the Company to the bargaining table.. Certainly, the moves and overall behavior of company were in total derogation of the policy enshrined in the Labor Code which is aimed towards expediting settlement of economic disputes. Hence, the Court is not prepared to affix its imprimatur to such an illegal scheme and dubious maneuvers. 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 to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party." -Collective bargaining which is defined as negotiations towards a collective agreement, is designed to stabilize the relation between labor and management and to create a climate of sound and stable industrial peace . It is a mutual responsibility of the employer and the Union and is characterized as a legal 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 of majority representation of the employees' representative in accordance with any of the means of selection or designation provided for by the LC; (2) proof of majority representation; and (3) a demand to bargain under Art 251, par. (a) of the Labor Code . . . all of which preconditions are undisputedly present in the instant case. -From the over-all conduct of petitioner company, Kilusan has a valid cause to complain against Company's attitude, the totality of which is indicative of the latter'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 a duly 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 but twice which were left unanswered and unacted upon; and (3) the Company made no counter proposal whatsoever all of which conclusively indicate lack of a sincere desire to negotiate. Even during the period of compulsory arbitration before the NLRC, Company's stalled the negotiation by a series of postponements, non-appearance at the hearing conducted -Herald Delivery Carriers Union (PAFLU) vs. Herald Publications: "unfair labor practice is committed when it is shown that the respondent employer, after having been served with a written bargaining proposal by 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 with an 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 NLRC pursuant to the mandate of P.D. 873, as amended, which authorizes the said body to determine the reasonableness of the terms and conditions of employment embodied in any CBA. To that extent, utmost deference to its findings of reasonableness of any Collective Bargaining Agreement as the governing agreement by the employees and management must be accorded due respect by this Court. Disposition Petition dismissed. ________________________________ LakasngManggagawangMakabayan v. Marcelo Enterprises G.R. No. L-38258 November 19, 1982 QUICK SUMMARY: LAKAS and 3 other unions are vying for the attention of the Marcelo Companies regarding who shall by the sole and exclusive bargaining representative. The companies required proof of authority from the unions. Later, the companies were compelled to file a certification election of who shall be the exclusive bargaining representative. Among other things, LAKAS claims that these are considered ULP. DOCTRINE: In a situation like this where the issue of legitimate representation in dispute is viewed for not only by one legitimate labor organization but two or more, there is every equitable ground warranting the holding of a certification election. In this way, the issue as to who is really the true bargaining representative of all the employees may be firmly settled by the simple expedient of an election. ~ It is essential to the right of a putative bargaining agent to represent the employees that it be the delegate of a majority of the employees and, conversely, an employer is under duty to bargain collectively only when the bargaining agent is representative of the majority of the employees. A natural consequence of these principles is that the employer has the right to demand of the asserted bargaining agent proof of its representation of its employees. 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 asserted bargaining agent has presented reasonable proof of majority representation. It is necessary however, that such demand be made in good faith and not merely as a pretext or device for delay or evasion. The employer's right is however to reasonable proof. Although an employer has the undoubted right to bargain with a bargaining agent whose authority has been established, without the requirement that the bargaining agent be officially certified by the National Labor Relations Board as such, if the informally presented evidence leaves a real doubt as to the issue, the employer has a right to demand a certification and to refuse to negotiate until such official certification is presented. ~ The protection of workers' right to self-organization in no way interfere with employer's freedom to enforce such rules and orders as are necessary to proper conduct of his businesses, so long as employer's supervision is not for the purpose of intimidating or coercing his employees with respect to their selforganization and representation NO DIGEST FOR DIVINE WORD UNIVERSITY _______________________________ 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 by them. NATURE OF PROCEDURE ASSOCIATED LABOR UNIONS (ALU) vs. FERRER-CALLEJA 173 SCRA 178 Regalado; May 5, 1989 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 the status of majority representation by the employees' representative; (2) proof of majority representation; and (3) a demand to bargain. The standing of ALU as SEBA is dubious, to say the least. The only express recognition of ALU as SEBA in the records is in the CBA. There was precipitate haste on the part of GAW in recognizing ALU, which recognition appears to have been based on the selfserving claim of ALU that it had the support of the majority of the employees in the bargaining unit. Furthermore, at the time of the supposed recognition, GAW was obviously aware that there were other unions existing in the unit. There was also failure to post the CBA in conspicuous places in the establishment before 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 now strongly repudiate the alleged negotiation and ratification of the CBA. ___________________________ COLEGIO DE SAN JUAN DE LETRAN v ASSOCIATION OF EMPLOYEES AND FACULTY OF LETRAN 340 SCRA 587 KAPUNAN; Sept 18, 2000 Nature: Petition for review on certiorari
1

FACTS - ALU, through a letter dated May 7, 1986, informed GAW Trading, Inc. that majority of the latter's employees have authorized ALU to be their sole and exclusive bargaining agent (SEBA), and requested a conference with GAW for the execution of an initial Collective Bargaining Agreement (CBA). ALU received a letter 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 May 9th, 2 unions in the company went on strike. - After the signing of the CBA, one of the striking unions filed a petition for certification election, which petition was eventually granted by the Bureau of Labor Relations. Hence the present action by ALU, which invokes the CBA it made with GAW and, thus, the applicability of the contract bar rule.

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Issues: 1. WON petitioner is guilty of unfair labor practice by refusing to bargain with the union when it unilaterally suspended the ongoing negotiations for a new CBA upon mere information that a petition for certification has been filed by another legitimate labor organization 2. WON the termination of the union president amounts to an interference of the employees right to self-organization Held: 1. YES - Article 252 of the Labor Code defines the meaning of the phrase duty to bargain collectively. Article 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of 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 including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party 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 the purpose of negotiating an agreement. The union lived up to its requisite when it presented its proposals for the CBA to petitioner. On the other hand, petitioner devised ways and means in order to prevent the negotiation. - Petitioners utter lack of interest in bargaining with the union is obvious in its failure to make a timely reply to the proposals presented by the union. This is a clear violation of Article 250 of the Labor Code Article 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. Xxx - Petitioner claims that the suspension of negotiations was proper since by the filing of the petition for certification of election the issue on majority representation of the employees arose. Court held that in order to allow the employer to validly suspend the bargaining process there must be a valid petition for certification election raising a legitimate representation issue. Hence, the mere filing of a petition for certification election does not ipso facto justify the suspension of negotiation by the employer. The petition must first comply with the provisions of the Labor Code and its Implementing Rules. Foremost is that a

Facts: -

On Dec 1992, Salvador Abtria, then President of respondent union, initiated the renegotiation of its CBA with petitioner for the last 2 years of the 5 year lifetime from 1989-1994. On the same year, the union elected 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 for signing by the parties. The parties submitted the disputed CBA to a referendum by the union members, who eventually rejected the said CBA. Petitioner accused the union officers of bargaining in bad faith before the NLRC. The labor arbiter ruled in favor of petitioner, but was reversed on appeal before the NLRC. On Jan 1996, the union notified the National Conciliation and Mediation Board of its intention to strike. On Jan 18, 1996 the parties agreed to disregard the unsigned CBA and to start negotiation on a new 5 year CBA starting 1994-1999. On Feb 7, 1996, the union submitted its proposals to petitioner, which notified the union 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 work schedule was being changed from Mon-Fri to Tue-Sat. Ambas protested and requested management to submit the issue to a grievance machinery 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 dismissing Ambas for alleged insubordination. The union amended the notice of strike to include Ambas dismissal. On Apr 20 1996, both parties again discussed the ground rules for the CBA negotiations. However, petitioner stopped the negotiations after it purportedly received information that a new group of employees had filed a certification election. On June 18, 1996, the union finally struck. On July 2, the Sec of Labor assumed jurisdiction and ordered all striking employees including the union president to return to work and for petitioner to accept them back under the same terms and conditions before the actual strike. Petitioner readmitted the striking members except Ambas. On Dec 2, 1996, the Sec of Labor issued an order declaring petitioner guilty of unfair labor practice on two counts and directing the reinstatement of Ambas, with backwages. Petitioners MFR was denied, so it sought a review before the CA, which dismissed the petition and affirmed the findings of the Sec of Labor.

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petition for certification election must be filed during the sixty-day freedom period. 2. YES While the Court recognizes the right of the employer to terminate the services of an employee for a just or authorized cause, nevertheless, the dismissal of employees 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 NATURE Petition for review on certiorari of the decision of the CA dismissing the petition of petitioner and affirming the order of the Sec of Labor FACTS - Respondent union initiated the renegotiation of its CBA with petitioner for the last 2 years of the CBAs 5 year lifetime. In the same year, the union elected a new set of officers wherein private respondent Eleanor Ambas was elected President. Ambas wanted to continue the renegotiation of the CBA but petitioner claimed that the CBA was already prepared for signing by the parties. The parties submitted the disputed CBA to a referendum by the union members, who eventually rejected the said CBA. Petitioner accused the union officers of bargaining in bad faith before the NLRC. The Labor Arbiter decided in favor of petitioner. However, the Labor Arbiters decision was reversed on appeal before the NLRC. The union gave notice to the National Conciliation & Mediation Board of its intention to strike on the grounds of petitioners non-compliance with the NLRCs orders and refusal to bargain. - The parties agreed to disregard the unsigned CBA and to start negotiation on a new five-year CBA. The union submitted its proposals to petitioner, which notified the union that the same had been submitted to its Board of Trustees. In the meantime, Ambas was informed through a letter from her superior that her work schedule was being changed from Monday to Friday to Tuesday to Saturday. Ambas protested and requested management to submit the issue to grievance machinery under the old CBA. Due to petitioners inaction, the union filed a notice of strike. The parties met before the NCMB to discuss the ground rules for the negotiation. The union received petitioners letter dismissing Ambas for alleged insubordination. Hence, the union amended its notice of strike to include Ambas dismissal. Both parties again discussed the ground rules for the CBA renegotiation. However, petitioner stopped the negotiations after it purportedly received information that a new group of employees had filed a petition for certification election. - The union finally struck. Public respondent Sec of Labor assumed jurisdiction and ordered all striking employees including the union president to return to work and for petitioner to accept them back under the same terms and conditions before the actual strike. Petitioner readmitted the striking members except Ambas. Public respondent issued an order declaring petitioner guilty of unfair labor practice on two counts and directing the reinstatement of private respondent 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. The appellate court dismissed the petition and affirmed the findings of public respondent. ISSUE/S 1. WON petitioner is guilty of unfair labor practice by refusing to bargain with the union when unilaterally suspended negotiations 2. WON termination of the union president amounts to interference with the right to self-organization HELD 1. YES Ratio Petitioners utter lack of interest in bargaining with the union is obvious in its failure to make a timely reply to the proposals presented by the latter. Where the employer did not even bother to submit an answer to the bargaining proposals 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 bargaining process there must be a valid petition for certification election raising a legitimate representation issue. The mere filing of a petition for certification election does not ipso facto justify the suspension of negotiation. The petition must first comply with the Labor Code and its Implementing Rules. Significantly, the same petition was dismissed by the Sec of Labor. The dismissal was upheld by this Court. 2. YES Ratio Management has the prerogative to discipline its employees for insubordination. But when the exercise of such management right tends to interfere with the employees right to self-organization, it amounts to unionbusting and is therefore a prohibited act. Reasoning The dismissal of Ms. Ambas was clearly designed to frustrate the Union in its desire to forge a new CBA with the College that is reflective of the true wishes and aspirations of the Union members. Her dismissal was merely a subterfuge to get rid of her. It has the effect of busting the Union, stripping it of its strong-willed leadership. When management refused to treat the charge of insubordination 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 bargain collectively," as follows: The duty to bargain collectively means the performance of 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 including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or 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 587 KAPUNAN; September 18, 2000 FACTS: -Newly elected union president Ambas wanted to continue the renegotiation of the CBA with said school but petitioner claimed that the CBA was already prepared for signing by the parties. Union members rejected CBA -union notified the National Conciliation and Mediation Board (NCMB) of its intention 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 starting 1994-1999. 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 same had been submitted to its Board of Trustees. -In the meantime, Ambas was informed that her work schedule was being changed from Monday to Friday to Tuesday to Saturday. Ambas protested and requested management to submit the issue to a grievance machinery under the old CBA -Due to petitioner's inaction, the union filed a notice of strike. The parties met on March 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 for alleged insubordination - On April 20, 1996, both parties again discussed the ground rules for the CBA renegotiation. However, petitioner stopped the negotiations after it purportedly received information that a new group of employees had filed a petition for certification election -union finally struck. On July 2, 1996, public respondent the Secretary of Labor and Employment assumed jurisdiction and issued a return to work order - On December 2, 1996, public respondent issued an order declaring petitioner guilty of unfair labor practice on two counts and directing the reinstatement of private respondent Ambas with backwages ISSUE: WON petitioner is guilty of unfair labor practice by refusing to bargain with the union when it unilaterally suspended the ongoing negotiations for a new CBA upon mere information that a petition for certification has been filed by another legitimate labor organization? HELD: yes -Article 252 of the Labor Code defines the meaning of the phrase "duty to bargain collectively. Noteworthy in the above definition is the requirement on both parties of the performance of the mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement -union lived up to this requisite when it presented its proposals for the CBA to petitioner on February 7, 1996. On the other hand, petitioner devised ways and means in order to prevent the negotiation -Petitioner's utter lack of interest in bargaining with the union is obvious in its failure to make a timely reply to the proposals presented by the latter. More than a month after the proposals were submitted by the union, petitioner still had not made any counter-proposals which is a clear violation of Art.250 which in part states: When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. the company's refusal to make counter-proposal to the union's proposed CBA is an indication of its bad faith -Moreover, the series of events (changing of Ambas work sched and her subsequent dismissal for insubordination) that transpired after the filing of the first notice of strike in January 1996 show petitioner's resort to delaying tactics to ensure that negotiation would not push through. _______________________

CONCILIATION PROCEDURE-250 (C, D,E); 233

Art. 250 Procedure in collective bargaining. c. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call;

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d. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and e. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. 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 by them. Art.250 (e) says that: The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. How does the law encourage the parties to go into conciliation? Privileged Communication (Art. 233) a. Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. b. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.
DUTY TO BARGAIN: 250-253; 242 (C) ART. 250. Procedure in collective bargaining . - The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; (b) Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. (c) If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; (d) During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and (e) The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March 21, 1989). 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.

MEANING OF DUTY
ART. 252. Meaning of duty to bargain collectively. - The duty to bargain collectively means the performance of 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 including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. ART. 253. Duty to bargain collectively when there exists a collective bargaining agreement. - When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. ART. 253-A. Terms of a collective bargaining agreement. - Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a

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deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code. (As amended by Section 21, Republic Act No. 6715, March 21, 1989). ART. 242. Rights of legitimate labor organizations. - A legitimate labor organization shall have the right: (c) To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation; _______________ STANDARD CHARTERED BANK EMPLOYEES UNION V CONFESOR 432 SCRA 308 CALLEJO; June 16, 2004 FACTS - Standard Chartered Bank is a foreign banking corporation doing business in the Philippines. The exclusive bargaining agent of the rank and file employees of the Bank is the Standard Chartered Bank Employees Union - The Union sought to renegotiate the terms of the CBA and initiated the negotiations. - Through its President, Eddie L. Divinagracia, it sent a letter containing its proposals covering political and economic provisions. - The Bank, took note of the Unions proposals. The Bank attached its counterproposal to the non-economic provisions proposed by the Union. - Before the commencement of the negotiation, the Union, through Divinagracia, suggested to the Banks Human Resource Manager and head of the negotiating panel, Cielito Diokno, that the bank lawyers should be excluded from the negotiating team. The Bank acceded. - Meanwhile, Diokno suggested to Divinagracia that Jose P. Umali, Jr., the President of the National Union of Bank Employees (NUBE), the federation to which the Union was affiliated, be excluded from the Unions negotiating panel. However, Umali was retained as a member thereof. - The parties met and set the ground rules for the negotiation. Diokno suggested that the negotiation be kept a family affair. - Even during the final reading of the, there were still non-economic provisions on which the Union and the Bank could not agree. Both parties agreed to place the notation DEFERRED/DEADLOCKED. - The negotiation for economic provisions commenced. Except for the provisions on signing bonus and uniforms, the Union and the Bank failed to agree on the remaining economic provisions of the CBA. The Union declared a deadlock and filed a Notice of Strike before the National Conciliation and Mediation Board - The Bank filed a complaint for Unfair Labor Practice (ULP) and Damages before the NLRC in Manila alleging that the Union violated its duty to bargain, as it did not bargain in good faith. It contended that the Union demanded sky high economic demands, indicative of blue-sky bargaining. - Then Secretary of Labor and Employment (SOLE) Nieves R. Confesor, assumed jurisdiction over the labor dispute and issued an Order dismissing the Bank and the Unions charges for unfair labor practice - The Union filed a motion for reconsideration with clarification, while the Bank filed a motion for reconsideration. The SOLE issued a Resolution denying the motions. The Union filed a second motion for reconsideration, which was, likewise, denied - The Union filed this petition - The Union alleges that the Bank violated its duty to bargain; hence, committed ULP under Article 248(g) when it engaged in surface bargaining. It alleged that the Bank just went through the motions of bargaining without any intent of reaching an agreement, as evident in the Banks counter-proposals. ISSUE WON the SOLE committed grave abuse of discretion amounting to lack of jurisdiction in dismissing the unions charge of unfair labor practice. HELD NO. - Surface bargaining: going through the motions of negotiating without any legal intent to reach an agreement. - The resolution of surface bargaining allegations never presents an easy issue. The determination of whether a party has engaged in unlawful surface bargaining is usually a difficult one because it involves, at bottom, a question of the intent of the party in question, and usually such intent can only be inferred from the totality of the challenged partys conduct both at and away from the bargaining table. It involves the question of whether an employers conduct demonstrates an unwillingness to bargain in good faith or is merely hard bargaining. - The minutes of meetings do not show that the Bank had any intention of violating its duty to bargain with the Union. Records show that after the Union sent its proposal to the Bank, the latter replied with a list of its counterproposals. Thereafter, meetings were set for the settlement of their differences. The minutes of the meetings show that both the Bank and the Union exchanged economic and non-economic proposals and counter-proposals. - The Union has not been able to show that the Bank had done acts, both at and away from the bargaining table, which tend to show that it did not want to reach an agreement with the Union or to settle the differences between it and the Union. Admittedly, the parties were not able to agree and reached a deadlock.

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However, it is herein emphasized that the duty to bargain does not compel either party to agree to a proposal or require the making of a concession. Hence, the parties failure to agree did not amount to ULP under Article 248(g) for violation of the duty to bargain. - The inference that respondents did not refuse to bargain collectively with the complaining union because they accepted some of the demands while they refused the others even leaving open other demands for future discussion is correct, especially so when those demands were discussed at a meeting called by respondents themselves precisely in view of the letter sent by the union - The Court also does not agree that the Union is guilty of ULP for engaging in blue-sky bargaining or making exaggerated or unreasonable proposals. - The Bank failed to show that the economic demands made by the Union were exaggerated or unreasonable. The minutes of the meeting show that the Union based its economic proposals on data of rank and file employees and the prevailing economic benefits received by bank employees from other foreign banks doing business in the Philippines and other branches of the Bank in the Asian region. Disposition Resolutions of the SOLE are AFFIRMED. ____________________ GEN. MILLING CORP. v CA (GEN. MILLING CORP. INDEPENDENT LABOR UNION) 422 SCRA 514 QUISIMBING; February 11, 2004 NATURE Petition for certiorari assailing the decision of the CA. FACTS - Gen. Milling employed 190 employees in its two plants in Cebu and Lapu-Lapu. They were all members of respondent Gen. Milling Corp. Independent Labor Union (union), a duly certified bargaining agent. - April 28, 1989: GMC and the union concluded a CBA which included the issue of representation effective for a term of three years. The CBA was effective for three years retroactive to December 1, 1988 (expiration: November 30, 1991). - A day before the expiration, the union to GMC a CBA, with a request for a counter-proposal to be returned within 10 days from receipt. - GMC received collective and individual letters from workers who stated that they had withdrawn from their union membership, due to religious affiliation and personal differences. Believing that the union no longer had standing to negotiate a CBA, GMC did not send any counter-proposal. - December 16, 1991: GMC wrote a letter to the unions officers, stating that even if there was no longer a basis for negotiations (since there was no union already), management was still willing to enter a dialogue with the union. The union officers disclaimed the massive disaffiliation. - January 13, 1992: GMC dismissed Marcia Tumbiga, a union member, on the ground of incompetence. The union protested and requested GMC to submit the matter to the grievance procedure provided in the CBA. GMC, however, advised the union to refer to our letter dated December 16, 1991. - July 2, 1992: the union filed a complaint against GMC with the NLRC, Arbitration Division, Cebu City, alleging unfair labor practice. The labor arbiter dismissed the case with the recommendation that a petition for certification election be held to determine if the union still enjoyed the support of the workers. - The union appealed to the NLRC. The NLRC set aside the labor arbiters decision, and ordered GMC to abide by the CBA draft that the union proposed for a period of two (2) years. NLRC pointed out that upon the effectivity of Rep. Act No. 6715, the duration of a CBA, insofar as the representation aspect is concerned, is five (5) years which, in the case of GMC-Independent Labor Union was from December 1, 1988 to November 30, 1993; the union remained as the exclusive bargaining agent. ISSUES 1. WON GMC is guilty of unfair labor practice for violating the duty to bargain collectively and/or interfering with the right of its employees to self-organization; 2. WON CA abused its discretion when it imposed upon GMC the draft CBA proposed by the union for two years to begin from the expiration of the original CBA.

HELD 1. YES Ratio Failing to comply with the mandatory obligation to submit a reply to the unions proposals, GMC violated its duty to bargain collectively , making it liable for unfair labor practice. Reasoning Article 253-A, Labor Code Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution.... - The representation provision of a CBA should last for five years. The relation between labor and management should be undisturbed until the last 60 days of the fifth year. It is indisputable that when the union requested for a renegotiation

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of the economic terms of the CBA on November 29, 1991, it was still the certified collective bargaining agent of the workers, because it was seeking said renegotiation within five (5) years from the date of effectivity of the CBA on December 1, 1988. - For refusing to send a counter-proposal to the union and to bargain anew on the economic terms of the CBA, the company committed an unfair labor practice under Article 248 of the Labor Code: ART. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: (g) To violate the duty to bargain collectively as prescribed by this Code; ART. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement.... - Good faith or bad faith is an inference to be drawn from the facts. The effect of an employers or a unions actions individually is not the test of good-faith bargaining, but the impact of all such occasions or actions, considered as a whole. - Under Article 252 both parties are required to perform their mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement. The union lived up to this obligation when it presented proposals for a new CBA to GMC. On the other hand, GMC failed in its duty under Article 252. What it did was to devise a flimsy excuse, by questioning the existence of the union and the status of its membership to prevent any negotiation. GMCs failure to make a timely reply to the proposals presented by the union is indicative of its utter lack of interest in bargaining with the union. - The CA found that the letters between February to June 1993 by 13 union members signifying their resignation from the union clearly indicated that GMC exerted pressure on its employees. Yes, GMC interfered with the right of employees to self-organization. 2. NO Ratio The provision mandates the parties to keep the status quo while they are still in the process of working out their respective proposal and counter proposal. When one of the parties abuses this grace period by purposely delaying the bargaining process, a departure from the general rule is warranted, that is, the court may impose on the erring company the CBA proposed by its employees union - lock, stock and barrel. Reasoning By its acts, no less than its action which bespeak its insincerity, GMC has forfeited whatever rights it could have asserted as an employer. - Under ordinary circumstances, it is not obligatory upon either side of a labor controversy to precipitately accept or agree to the proposals of the other. But an erring party should not be allowed to resort with impunity to schemes feigning negotiations by going through empty gestures. DISPOSITION Petition is dismissed. _________________________ MINUTES OF NEGOTIATION SAMAHANG MANGGAGAWA SA TOP FORM V. NLRC 295 SCRA 171 ROMERO : September 7, 1998 FACTS: The charge arose from the employer's refusal to grant across-the-board increases to its employees in implementing Wage Orders Nos. 01 and 02 of the Regional Tripartite Wages and Productivity Board of the National Capital Region (RTWPB-NCR). Such refusal was aggravated by the fact that prior to the issuance of said wage orders, the employer allegedly promised at the collective bargaining conferences to implement any government-mandated wage increases on an across-the-board basis. Petitioner Samahang Manggagawa sa Top Form Manufacturing United Workers of the Philippines (SMTFM) was the certified collective bargaining representative of all regular rank and file employees of private respondent Top Form Manufacturing Philippines, Inc. At the collective bargaining negotiation, the parties agreed to discuss unresolved economic issues. According to the minutes of the meeting the Union proposed that any future wage increase given by the government should be implemented by the company across-the-board or non-conditional. Management requested the union to retain this provision since their sincerity was already proven when the P25.00 wage increase was granted across-the-board. The union acknowledges management's sincerity but they are worried that in case there is a new set of management, they can just show their CBA. The union decided to defer this provision. In their joint affidavit dated January 30, 1992, union members Salve L. Barnes, Eulisa Mendoza, Lourdes Barbero and Concesa Ibaez affirmed that at the subsequent collective bargaining negotiations, the union insisted on the incorporation in the collective bargaining agreement (CBA) of the union proposal on "automatic across-the-board wage increase." On October 15, 1990, the RTWPB-NCR issued Wage Order No. 01 granting an increase of P17.00 per day in the salary of workers. This was followed by Wage Order No. 02 dated December 20, 1990 providing for a P12.00 daily increase in salary.

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As expected, the union requested the implementation of said wage orders. However, they demanded that the increase be on an across-theboard basis. Private respondent refused to accede to that demand. Instead, it implemented a scheme of increases purportedly to avoid wage distortion. On October 24, 1991, the union, through its legal counsel, wrote private respondent a letter demanding that it should "fulfill its pledge of sincerity to the union by granting an across-the-board wage increase to all employees under the wage orders." Several conferences between the parties notwithstanding, private respondent adamantly maintained its position on the salary increases it had granted that were purportedly designed to avoid wage distortion. Consequently, the union filed a complaint with the NCR NLRC alleging that private respondent's act of "reneging on its undertaking/promise clearly constitutes act of unfair labor practice through bargaining in bad faith." It charged private respondent with acts of unfair labor practices or violation of Article 247 of the Labor Code, as amended, specifically "bargaining in bad faith," and prayed that it be awarded actual, moral and exemplary damages. Private respondent, on the other hand, contended that in implementing Wage Orders Nos. 01 and 02, it had avoided "the existence of a wage distortion" that would arise from such implementation. It emphasized that only "after a reasonable length of time from the implementation" of the wage orders "that the union surprisingly raised the question that the company should have implemented said wage orders on an across-theboard basis." It asserted that there was no agreement to the effect that future wage increases mandated by the government should be implemented on an across-the-board basis. Otherwise, that agreement would have been incorporated and expressly stipulated in the CBA. On March 11, 1992, Labor Arbiter Jose G. de Vera rendered a decision dismissing the complaint for lack of merit. Not satisfied, petitioner appealed to the NLRC that, in turn, promulgated the assailed Resolution of April 29, 1993 dismissing the appeal for lack of merit. Still dissatisfied, petitioner sought reconsideration which, however, was denied by the NLRC in the Resolution dated January 17, 1994. petitioner union has the means under the law to compel private respondent to incorporate this specific economic proposal in the CBA. It could have invoked Article 252 of the Labor Code defining "duty to bargain," thus, the duty includes "executing a contract incorporating such agreements if requested by either party." The CBA is the law between the contracting parties, the collective bargaining representative and the employer-company. Compliance with a CBA is mandated by the expressed policy to give protection to labor. In the same vein, CBA provisions should 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 purpose which it is intended to serve." This is founded on the dictum that a CBA is not an ordinary contract but one impressed with public interest. It goes without saying, however, that only provisions 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, it is not a part thereof and the proponent has no claim whatsoever to its implementation. Because the proposal was never embodied in the CBA, the promise has remained just that, a promise, the implementation of which cannot be validly demanded under the law.

DISPOSITIVE: NLRC decision affirmed. ________________________ SAMAHANG MANGGAGAWA SA TOP FORM MANUFACTURING UNITED WORKERS OF THE PHILIPPINES V NLRC (DE VERA). 295 SCRA 171 ROMERO; September 7, 1998 NATURE Petition for review on certiorari FACTS . At the collective bargaining negotiation between SMTFM-UWP and its employer, the Union proposed that any future wage increase given by the government should be implemented by the company across-the-board or non-conditional. The management promised to implement this but requested the union to drop the provision since their sincerity was already proven when the P25.00 wage increase was granted across-the-board. An undertaking to this effect was taken by the officials of the company. - RTWPB-NCR issued Wage Order No. 01 and Wage Order No. 02 providing for a P17 and P12 daily increase in salary, respectively. - Union requested the implementation of said wage orders on an across-theboard basis. Employer refused. Instead, it implemented a scheme of increases purportedly to avoid wage distortion.

ISSUE: WON private respondent committed an unfair labor practice HELD: NO Reasoning: If there was indeed a promise or undertaking on the part of private respondent to obligate itself to grant an automatic across-the-board wage increase, petitioner union should have requested or demanded that such "promise or undertaking" be incorporated in the CBA. After all,

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- Several conferences were held but they were not able to settle. - Union filed a complaint for unfair labor practices or violation of Article 247 of the Labor Code, specifically "bargaining in bad faith," and prayed that it be awarded actual, moral and exemplary damages. Union added that it was also charging private respondent with violation of Article 100. - Labor arbiter De Vera, and subsequently, the NLRC, dismissed the complaint for lack of merit. ISSUES 1. WON the employer committed an unfair labor practice HELD 1. NO Ratio The CBA is the law between the contracting parties. Compliance with a CBA is mandated by the expressed policy to give protection to labor. In the same vein, CBA provisions should 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 purpose which it is intended to serve." This is founded on the dictum that a CBA is not an ordinary contract but one impressed with public interest. It goes without saying, however, that only provisions 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, it is not a part thereof and the proponent has no claim whatsoever to its implementation Reasoning - If there was indeed a promise or undertaking on the part of the management to obligate itself to grant an automatic across-the-board wage increase, union should have requested or demanded that such be incorporated in the CBA. It could have invoked Article 252 of the Labor Code defining "duty to bargain," thus, the duty includes "executing a contract incorporating such agreements if requested by either party." However, Article 252 also states that the duty to bargain "does not compel any party to agree to a proposal or make any concession." Thus, union may not validly claim that the proposal embodied in the Minutes of the negotiation forms part of the CBA that it finally entered into with private respondent. - Union asserts that management committed "acts of unfair labor practices by virtue of its contractual commitment made during the collective bargaining process." The mere fact, however, that the proposal in question was not included in the CBA indicates that no contractual commitment thereon was ever made as no agreement had been arrived at by the parties. - The purpose of collective bargaining is the reaching of an agreement resulting in a contract binding on the parties; but the failure to reach an agreement after negotiations continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an agreement. - The question as to what are mandatory and what are merely permissive subjects of collective bargaining is of significance on the right of a party to insist on his position to the point of stalemate. A party may refuse to enter into a collective bargaining contract unless it includes a desired provision as to a matter which is a mandatory subject of collective bargaining; but a refusal to contract unless the agreement covers a matter which is not a mandatory subject is in substance a refusal to bargain about matters which are mandatory subjects of collective bargaining, and it is no answer to the charge of refusal to bargain in good faith that the insistence on the disputed clause was not the sole cause of the failure to agree or that agreement was not reached with respect to other disputed clauses. - No benefits or privileges previously enjoyed by union and the other employees were withdrawn as a result of the manner by which private respondent implemented the wage orders. Granted that private respondent had granted an across-the-board increase pursuant to RA 6727, that single instance may not be considered an established company practice. Union's argument in this regard is actually tied up with its claim that the implementation of Wage Orders Nos. 01 and 02 by private respondent resulted in wage distortion . Dispositive Petition DISMISSED. ________________ GENERAL MILLING CORPORATION v CA (GMC INDEPENDENT LABOR UNION) 422 SCRA 514 QUISUMBING; February 11, 2004 FACTS -GMC employed 190 workers in its two plants, all of whom were members of GMC-ILO (duly certified bargaining agent). GMC and the union concluded a CBA) which included the issue of representation effective for a term of three years. The CBA was effective for three years, to expire on November 30, 1991. -A day before the expiration of the CBA, the union sent GMC a proposed CBA, with a request that a counter-proposal be submitted within 10 days. As early as October 1991, however, GMC had received collective and individual letters from workers who stated that they had withdrawn from their union membership, on grounds of religious affiliation and personal differences. Believing that the union no longer had standing to negotiate a CBA, GMC did not send any counterproposal, believing that there was no basis to negotiate with a union which no longer existed. -The union officers disclaimed any massive disaffiliation or resignation from the union and submitted a manifesto, signed by its members, stating that they had not withdrawn from the union.

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-GMC dismissed Tumbiga, a union member, on the ground of incompetence. The union protested and requested GMC to submit the matter to the grievance procedure provided in the CBA. GMC denied the unions request. Thus, the union filed a complaint against GMC with the Labor Arbiter alleging ULP for: (1) refusal to bargain collectively; (2) interference with the right to self-organization; and (3) discrimination. The labor arbiter dismissed the case with the recommendation that a petition for certification election be held to determine if the union still enjoyed the support of the workers. - Upon appeal, the NLRC reversed the LAs decision. But NLRC later reversed its own decision. The CA reinstated NLRCs first decision, ruling in favor of the union. ISSUE 1. WON GMC is guilty of ULP for violating the duty to bargain collectively and/or interfering with the right of its employees to self-organization 2. WON the CA erred in imposing upon GMC the draft CBA proposed by the union for two years to begin from the expiration of the original CBA. HELD 1. YES ART. 253-A of the LC mandates that the representation provision of a CBA should last for five years. The relation between labor and management should be undisturbed until the last 60 days of the fifth year. Hence, it is indisputable that when the union requested for a renegotiation of the economic terms of the CBA, it was still the certified collective bargaining agent of the workers, because it was seeking said renegotiation within 5 years from the date of effectivity of the CBA. The unions proposal was also submitted within the prescribed 3-year period from the date of effectivity of the CBA, albeit just before the last day of said period. It was obvious that GMC had no valid reason to refuse to negotiate in good faith with the union. For refusing to send a counter-proposal to the union and to bargain anew on the economic terms of the CBA, the company committed an unfair labor practice under Article 248 of the Labor Code, which provides that: ART. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice: (g) To violate the duty to bargain collectively as prescribed by this Code; Article 252 of the Labor Code elucidates the meaning of the phrase duty to bargain collectively, thus: ART. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement.... The crucial question whether or not a party has met his statutory duty to bargain in good faith typically turn on the facts of the individual case. There is no per se test of good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts. The effect of an employers or a unions actions individually is not the test of good-faith bargaining, but the impact of all such occasions or actions, considered as a whole. Under Article 252, both parties are required to perform their mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement. The union lived up to this obligation when it presented proposals for a new CBA to GMC within 3 years from the effectivity of the original CBA. But GMC failed in its duty under Article 252. What it did was to devise a flimsy excuse, by questioning the existence of the union and the status of its membership to prevent any negotiation. It bears stressing that the procedure in collective bargaining prescribed by the Code is mandatory because of the basic interest of the state in ensuring lasting industrial peace. Thus: ART. 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. GMCs failure to make a timely reply to the proposals presented by the union is indicative of its utter lack of interest in bargaining with the union. Its excuse that it felt the union no longer represented the workers, was mainly dilatory as it turned out to be utterly baseless. GMCs refusal to make a counter-proposal to the unions proposal for CBA negotiation is an indication of its bad faith. Where the employer did not even bother to submit an answer to the bargaining proposals of the union, there is a clear evasion of the duty to bargain collectively. 2. NO. The Code provides: ART. 253. Duty to bargain collectively when there exists a collective bargaining agreement. ....It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period [prior to its expiration date] and/or until a new agreement is reached by the parties. The provision mandates the parties to keep the status quo while they are still in the process of working out their respective proposal and counter proposal. The general rule is that when a CBA already exists, its provision shall continue to govern the relationship between the parties, until a new one is agreed upon. The rule necessarily presupposes that all other things are equal. That is, that neither party is guilty of bad faith. However, when one of the parties abuses this grace period by purposely delaying the bargaining process, a departure from the general rule is warranted. It would be unfair to the union and its members if the terms and conditions contained in the old CBA would continue to be imposed on GMCs employees for

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the remaining two (2) years of the CBAs duration. We are not inclined to gratify GMC with an extended term of the old CBA after it resorted to delaying tactics to prevent negotiations. Since it was GMC which violated the duty to bargain collectively, based on Kiok Loy and Divine Word University of Tacloban, it had lost its statutory right to negotiate or renegotiate the terms and conditions of the draft CBA proposed by the union. Under ordinary circumstances, it is not obligatory upon either side of a labor controversy to precipitately accept or agree to the proposals of the other. But an erring party should not be allowed to resort with impunity to schemes feigning negotiations by going through empty gestures. Thus, by imposing on GMC the provisions of the draft CBA proposed by the union, the interests of equity and fair play were properly served and both parties regained equal footing, which was lost when GMC thwarted the negotiations for new economic terms of the CBA. ______________________ 5.1 CONTRACT INFIRMITY ASSOCIATED LABOR UNIONS VS CALLEJA 173 SCRA 179 REGALADO; May 5, 1989 NATURE Special civil action for certiorari and prohibition FACTS - Petitioner Associated Labor Unions instituted this action to overturn the decision of the respondent director which ordered the holding of a certification election among the rank-and-file workers of the private respondent GAW Trading, Inc. - ALU thru its regional VP Teofanio C. Nuez informed GAW Trading, Inc. that majority of the latter's employees have authorized ALU to be their sole and exclusive bargaining representative, and requested GAW Trading Inc., in the same Letter for a conference for the execution of an initial CBA - GAW Trading Inc. responded indicating its recognition of ALU as the sole and exclusive bargaining agent for the majority of its employees and for which it set the time for conference and/or negotiation - ALU in behalf of the majority of the employees of GAW Trading Inc. signed and executed the CBA - In the meantime, at a date before the execution of the CBA, the Southern Philippines Federation of Labor (SPFL) together with Nagkahiusang Mamumuo sa GAW (NAMGAW) undertook a Strike after it failed to get the management of GAW Trading Inc. to sit for a conference respecting its demands presented in an effort to pressure GAW Trading Inc. to make a turnabout of its standing recognition of ALU as the sole and exclusive bargaining representative of its employees, as to which strike GAW Trading Inc. filed a petition for Restraining Order/Preliminary Injunction and which strike Labor Arbiter Bonifacio B. Tumamak held as illegal - GAW Lumad Labor Union (GALLU-PSSLU) Federation filed a Certification Election petition, but as found by Med-Arbiter Candido M. Cumba in its, without having complied with the subscription requirement for which it was merely considered an intervenor until compliance thereof in the other petition for direct recognition as bargaining agent filed by SPFL as found in the same order - In the meantime, the CBA executed by ALU and GAW Trading Inc. was duly filed with the Ministry of Labor and Employment in Region VII, Cebu city - Nevertheless, Med-Arbiter Cumba in his order ruled for the holding of a certification election in all branches of GAW Trading Inc. in Cebu City, as to which ALU filed a Motion for Reconsideration which was treated as an appeal on that questioned Order for which reason the entire record of subject certification case was forwarded for the Director, Bureau of Labor Relations, Ministry of Labor and Employment, Manila - BLR Director Cresencio B. Trajano, rendered a Decision granting ALU's appeal and set aside the questioned Med-Arbiter Order on the ground that the CBA has been effective and valid and the contract bar rule is applicable - The decision of Director Trajano was sought for reconsideration both by SPFL and the Philppine Social Security Labor Union (PSSLU) which were opposed by both GAW Trading, Inc. and ALU - The aforesaid decision was thereafter reversed by respondent director in her aforecited decision which is now assailed in this action. A motion for reconsideration of ALU appears to have been disregarded, hence, its present resort grounded on grave abuse of discretion by public respondent. - Public respondent ordered the holding of a certification election ruling that the "contract bar rule" relied upon by her predecessor does not apply in the present controversy. According to the decision of said respondent, the CBA involved herein is defective because it "was not duly submitted in accordance with Section I, Rule IX, Book V of the Implementing Rules of BP 130." It was further observed that "there is no proof tending to show that the CBA has been posted in at least two conspicuous places in the establishment at least five days before its ratification and that it has been ratified by the majority of the employees in the bargaining unit." ISSUE WON the CBA executed by GAW Trading Inc and ALU is defective. HELD YES. Ratio The CBA in question is defective hence unproductive of the legal effects attributed to it by the former director in his decision which was subsequently and properly reversed. The mechanics of collective bargaining are set in motion only when the following jurisdictional preconditions are present, namely, (1) possession of the status of majority representation by the employees'

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representative in accordance with any of the means of selection and/or designation provided for by the Labor Code; (2) proof of majority representation; and (3) a demand to bargain under Article 251, paragraph (a), of the New Labor Code. Reasoning In the present case, the standing of petitioner as an exclusive bargaining representative is dubious, to say the least. Respondent company, in a letter and addressed to petitioner, merely indicated that it was "not against the desire of its workers" and required petitioner to present proof that it was supported by the majority thereof in a meeting to be held on the same date. - The only express recognition of petitioner as said employees' bargaining representative is in the CBA entered into two days thereafter. Evidently, there was precipitate haste on the part of respondent company in recognizing petitioner union, which recognition appears to have been based on the selfserving claim of the latter that it had the support of the majority of the employees in the bargaining unit. - Furthermore, at the time of the supposed recognition, the employer was obviously aware that there were other unions existing in the unit. The unusual promptitude in the recognition of petitioner union by respondent company as the exclusive bargaining representative of the workers in GAW Trading, Inc. under the fluid and amorphous circumstances then obtaining, was decidedly unwarranted and improvident. It bears mention that even in cases where it was the then Minister of Labor himself who directly certified the union as the bargaining representative, this Court voided such certification where there was a failure to properly determine with legal certainty whether the union enjoyed a majority representation. In such a case, the holding of a certification election at a proper time would not necessarily be a mere formality as there was a compelling reason not to directly and unilaterally certify a union. - An additional infirmity of the CBA involved was the failure to post the same in at least 2 conspicuous places in the establishment at least five days before its ratification. In the first place, the posting of copies of the CBA is the responsibility of the employer which can easily comply with the requirement through a mere mechanical act. The purpose of the requirement is precisely to inform the employees in the bargaining unit of the contents of said agreement so that they could intelligently decide whether to accept the same or not. The assembly of the members of ALU wherein the agreement in question was allegedly explained does not cure the defect. The contract is intended for all employees and not only for the members of the purported representative alone. It may even be said the the need to inform the non-members of the terms thereof is more exigent and compelling since, in all likehood, their contact with the persons who are supposed to represent them is limited. - Another potent reason for annulling the disputed collective bargaining is the finding of respondent director that 181 of the 281 workers who "ratified" the same now strongly and vehemently deny and/or repudiate the alleged negotiations and ratification of the CBA." - Basic to the contract bar rule is the proposition that the delay of the right to select representatives can be justified only where stability is deemed paramount. Excepted from the contract which do not foster industrial stability, such as contracts where the identity of the representative is in doubt. Any stability derived from such contracts must be subordinated to the employees' freedom of choice because it does not establish the type of industrial peace contemplated by the law. Disposition WHEREFORE, the order of the public respondent for the conduct of a certification election among the rank-and-file workers of respondent GAW Trading Inc. is AFFIRMED. _____________________ NO DIGEST FOR ATU VS TRAJANO _______________________ NO DIGEST FOR PLANTERS PRODUCTS The CBA was not formally ratified by the majority of the workers in the bargaining unit. However, the workers received and enjoyed the benefits under the CBA. Can the EEs later on have the contract invalidated for lack of formal ratification? No. The EEs have already enjoyed benefits from it. They cannot receive benefits under provisions favorable to them and later insist that the CBA is void simply because other provisions turn out not to the liking of certain EEs. (Planters Product vs. NLRC) ___________________________________ NO DIGEST FOR ABARIA VS NLRC, 2011 _______________________ SAN MIGUEL FOODS, INCORPORATED, PETITIONER, VS. SAN MIGUEL CORPORATION SUPERVISORS AND EXEMPT UNION, 2011

FACTS: Pursuant to the Courts decision in GR 110399 DOLE conducted a pre election conferences. However it was found out that there was discrepancy on the list of eligible voters. This was challenged by the herein petitioner as these employees aside that they are working in a separate and distinct entity, few are also working as confidential employees which are considered prohibited to join.

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MA- validly identified the respondent as certified exclusive bargaining agent of the supervisory and exempt employees. DOLE- Undersecretary affirmed the order except for the four employees that should be excluded from joining as because Matias and Lozano are members of Magnolia Poultry Processing Plants Monthly Employees Union, while Delos Reyes and Pajaron are employees of San Miguel Corporation, which is a separate and distinct entity from petitioner. Petitioners motions were denied by DOLE and CA. Hence this petition ISSUE: WON these employees who worked in a different and separate entity should be excluded? HELD: NO. They should not be excluded. There should be only one bargaining unit for the employees in Cabuyao, San Fernando, and Otis of Magnolia Poultry Products Plant involved in dressed chicken processing and Magnolia Poultry Farms engaged in live chicken operations. Certain factors, such as specific line of work, working conditions, location of work, mode of compensation, and other relevant conditions do not affect or impede their commonality of interest. Although they seem separate and distinct from each other, the specific tasks of each division are actually interrelated and there exists mutuality of interests which warrants the formation of a single bargaining unit. The test of grouping is community or mutuality of interest. This is so because the basic test of an asserted bargaining units acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights. ISSUE 2: WON the payroll master, human resource and personnel assistant are considered as confidential employee? HELD: 1. Payroll Master does not involve dealing with confidential labor relations information in the course of the performance of his functions. Since the nature of his work does not pertain to company rules and regulations and confidential labor relations, it follows that he cannot be excluded from the subject bargaining unit . 2. Human Resource Assistant, the scope of ones work necessarily involves labor relations, recruitment and selection of employees, access to employees' personal files and compensation package, and human resource management. 3)Personnel Assistant, ones work includes the recording of minutes for management during collective bargaining negotiations, assistance to management during grievance meetings and administrative investigations, and securing legal advice for labor issues from the petitioners team of lawyers, and implementation of company programs. Therefore, in the discharge of their functions, both gain access to vital labor relations information which out rightly disqualifies them from union membership. PETITION DENIED. ______________________ NO DIGEST FOR MANILA MINING, 2010 _________________________