Professional Documents
Culture Documents
COVERAGE
Article 243. Coverage and employees right to self-organization. All
persons employed in commercial, industrial and agricultural
enterprises and in religious, charitable, medical, or educational
institutions, whether operating for profit or not, shall have the right to
self-organization and to form, join, or assist labor organizations of
their own choosing for purposes of collective bargaining. Ambulant,
intermittent and itinerant workers, self-employed people, rural
workers and those without any definite employers may form labor
organizations for their mutual aid and protection. (As amended by
Batas Pambansa Bilang 70, May 1, 1980).
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1. ORGANIZING IN GENERAL
The rights to organize and to bargain, in a general sense, are given not
exclusively to employees. Even workers who are not employees of
any particular employer may form their organizations to protect their
interests.
Under Art. 243 of this Code, the right to organize refers also to
forming, joining or assisting a labor organization. Connected to Art.
246 this right carries with it the right to engage in group action,
provided it is peaceful, to support the organizations objective which
is not necessarily bargaining but, simply, to aid and protect its
members. But this kind of group action must be differentiated from
strike which, because it is work stoppage, must observe certain
regulation; otherwise, the strike may be declared illegal and its leaders
may be thrown out of their jobs.
LABOR RELATIONS
form any labor organization. Therefore, regardless of the challenged
employees' designations, whether they are employed as Supervisors or
in the confidential payrolls, if the nature of their job does not fall
under the definition of "managerial" as defined in the Labor Code,
they are eligible to be members of the bargaining unit and to vote in
the certification election. Their right to self-organization must be
upheld in the absence of an express provision of law to the contrary. It
cannot be curtailed by a collective bargaining agreement.
3. EMPLOYEES OF NONPROFIT INSTITUTIONS
Under Article 243 of the Labor Code, the rank-and-file employees of
non-profit medical institutions are permitted to form, organize or join
labor unions of their choice for purposes of collective bargaining. If
the union has complied with the requisites provided by law for calling
a certification election, it is incumbent upon the DOLE Regional
Director to conduct such certification election to ascertain the
bargaining representative of the hospital employees.
4.
EXCEPTION:
COOPERATIVE
EMPLOYEE-MEMBERS
OF
LABOR RELATIONS
D.O. No. 40-03 allows and defines a workers association as one
which is organized for the mutual aid and protection of its members or
for any legitimate purpose other than collective bargaining.
LABOR RELATIONS
bargaining," but simply "for the furtherance and protection of their
interests."
In other words, the right of Government employees to deal and
negotiate with their respective employers is not quite as extensive as
that of private employees. Excluded from negotiation by government
employees are the "terms and conditions of employment...that are
fixed by law," it being only those terms and conditions not otherwise
fixed by law that "may be subject of negotiation between the duly
recognized employees' organizations and appropriate government
authorities."
Declared to be 'not negotiable' are matters "that require appropriation of funds;"
e.g., increase in salary emoluments and other allowances, car plan, special
hospitalization, medical and dental services, increase in retirement benefits
(Sec. 3, Rule VIII), and those "that involve the exercise of management
prerogatives;" e.g., appointment, promotion, assignment/detail, penalties as a
result of disciplinary actions, etc. (Sec. 4, Id.) Considered negotiable are such
matters as schedule of vacation and other leaves, work assignment of pregnant
women; recreational, social, athletic, and cultural activities and facilities, etc.
(Sec. 2, Id.).
exercised in accordance with law, i.e. are subject both to "Civil Service Law
and rules" and "any legislation that may be enacted by Congress," that "the
resolution of complaints, grievances and cases involving government
employees" is not ordinarily left to collective bargaining or other related
concerted activities, but to "Civil Service Law and labor laws and procedures
whenever applicable;" and that in case "any dispute remains unresolved after
exhausting all available remedies under existing laws and procedures, the
parties may jointly refer the dispute to the (Public Sector Labor-Management)
Council for appropriate action." What is more, the Rules and Regulations
implementing Executive Order No. 180 explicitly provide that since the "terms
and conditions of employment in the government, including any political
subdivision or instrumentality thereof and government-owned and controlled
corporations with original charters are governed by law, the employees therein
shall not strike for the purpose of securing changes thereof.
2. REGISTRATION
Sec. 7. Government employees' organizations shall register with the Civil
Service Commission and the Department of Labor and Employment. The
application shall be filed with the Bureau of Labor Relations of the Department
which shall process the same in accordance with the provisions of the Labor
Code of the Philippines, as amended. Applications may also be filed with the
Regional Offices of the Department of Labor and Employment which shall
immediately transmit the said applications to the Bureau of Labor Relations
within three (3) days from receipt thereof.
Sec. 8. Upon approval of the application, a registration certificate be issued
to the organization recognizing it as a legitimate employees' organization with
the right to represent its members and undertake activities to further and defend
its interest. The corresponding certificates of registration shall be jointly
approved by the Chairman of the Civil Service Commission and Secretary of
Labor and Employment. (E.O. No. 180)
3.
CERTIFICATION
CORPORATION
ELECTION
IN
GOVERNMENT
LABOR RELATIONS
Even temporary employees enjoy the basic right to form organization
or association for purposes not contrary to law.
Under Art. 277(c) of the Labor Code, any employee, whether
employed for a definite period of not, shall beginning on his first day
of service, be considered an employee for purposes of membership in
any labor union.
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Article 245. Ineligibility of managerial employees to join any labor
organization; Right of Supervisory Employees. - Managerial
employees are not eligible to join, assist or form any labor
organization. Supervisory employees shall not be eligible for
membership in the collective bargaining unit of the rank-and-file
employees but may join, assist or form separate collective bargaining
units and/or legitimate labor organizations of their own. The rank-andfile union and the supervisors union operating within the same
establishment may join the same federation or national union. (As
amended by Section 18, Republic Act No. 6715, March 21, 1989 and
Section 8, Republic Act No. 9481 which lapsed into law on May 25,
2007 and became effective on June 14, 2007).
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1. CATEGORIES OF EMPLOYEES
RA 6715 which took effect on March 21, 1989 (15 days after its
publication in the "Philippines Daily Inquirer") provides that although
"supervisory employees shall not be eligible for membership in a
labor organization of the rank and file employees," they may,
however, "join, assist or form separate labor organization of their
own."
2. INELIGIBILITY OF MANAGERS
2.1 Types of Managerial Employees
The term "manager" generally refers to "anyone who is responsible for
subordinates and other organizational resources." As a class, managers
constitute three levels of a pyramid, namely, top management, middle
management, and first-line management which is also called supervisor. Below
this third level are the operatives or operating employees who, we may add, are
also called rank-and-file.
FIRST-LINE MANAGERS The lowest level in an organization at which
individuals are responsible for the work of others is called first-line or firstlevel management. First-line managers direct operating employees only; they
do not supervise other managers. Examples of first-line managers are the
"foreman" or production supervisor in a manufacturing plant, the technical
supervisor in a research department, and the clerical supervisor in a large office.
First-level managers are often called supervisors.
MIDDLE MANAGERS The term middle management can refer to more
than one level in an organization. Middle managers direct the activities of other
managers and sometimes also those of operating employees. Middle managers'
principal responsibilities are to direct the activities that implement their
organizations' policies and to balance the demands of their superiors with the
capacities of their subordinates. A plant manager in an electronics firm is an
example of a middle manager.
TOP MANAGERS Composed of a comparatively small group of
executives, top management is responsible for the overall management of the
organization. It establishes operating policies and guides the organization's
interactions with its environment. Typical titles of top managers are "chief
executive officer," "president," and "senior vice-president." Actual titles vary
from one organization to another and are not always a reliable guide to
membership in the highest management classification.
As can be seen from this description, a distinction exists between those who
have the authority to devise, implement and control strategic and operational
policies (top and middle managers) and those whose task is simply to ensure
that such policies are carried out by the rank-and-file employees of an
organization (first-level managers/supervisors). What distinguishes them from
the rank-and-file employees is that they act in the interest of the employer in
supervising such rank-and-file employees.
"Managerial employees" may therefore be said to fall into two distinct
categories: the "managers" per se, who compose the former group described
above, and the "supervisors" who form the latter group. Whether they belong to
the first or the second category, managers, vis-a-vis employers, are, likewise,
employees.
The present Article 245 is the result of the amendment of the Labor
Code in 1989 by R.A. No. 6715, otherwise known as the HerreraVeloso Law. Unlike the Industrial Peace Act or the provisions of the
Labor Code which it superseded, R.A. No. 6715 provides separate
definitions of the terms "managerial" and "supervisory employees"
(See Art. 212[m]).
Although the definition of "supervisory employees" seems to have
been unduly restricted to the last phrase of the definition in the
Industrial Peace Act, the legal significance given to the phrase
"effectively recommends" remains the same. In fact, the distinction
between top and middle managers, who set management policy, and
front-line supervisors, who are merely responsible for ensuring that
such policies are carried out by the rank and file, is articulated in the
present definition.
The rationale for this inhibition has been stated to be, because if these
managerial employees would belong to or be affiliated with a Union, the latter
might not be assured of their loyalty to the Union in view of evident conflict of
interests. The Union can also become company-dominated with the presence of
managerial employees in Union membership.
LABOR RELATIONS
The problem was that although the Industrial Peace Act defined a
supervisor, it failed to define a manager or managerial
employee. So the question arose: Did the word supervisor include
manager? Could managers also unionize? In a case involving Caltex
managers, the Court answered affirmatively.
3.2 Second Period: Under the Labor Code Before Amendment by
R.A. No. 6715
This time the question was: Did managerial employee include
supervisor? Were supervisors also banned from unionizing? Yes.
The prohibition was applied to supervisors in the case of Bulletin
Publishing Corp. V. Sanchez, 144 SCRA 428, decided on October 7,
1986.
3.3 Third Period: Under the Labor Code as Amended by RA 6715
R.A. No. 6715 presents a compromise formula: retain the ineligibility
of managerial employees but revive the right of supervisory
employees to unionize.
4. DEFINITION OF MANAGER AND SUPERVISOR
Unlike in the Industrial Peace Act and the Labor Code before such
amendment, the power to decide on managerial acts is now separated
from the power to recommend those managerial acts, such as laying
down policy, hiring or dismissing employees, etc. A supervisor has the
power only to recommend while a managerial employee has the
power to decide and do those acts.
But to make one a supervisor, the power to recommend must not be
merely routinary or clerical in nature but requires the use of
independent judgment. In other words, the recommendation is (1)
discretionary or judgmental (not clerical), (2) independent (not a
dictation of someone else), and (3) effective (given particular weight
in making the management decision). If these qualities are lacking or,
worse, if the power to recommend is absent, then the person is not
really a supervisor but a rank-and-file employee and therefore belongs
or should belong to a rank-and-file organization.
Similarly, a so-called manager, no matter how his position is titled, is
not really a manager in the eyes of the law if he does not possess
managerial powers (to lay down and execute management policies
and/ or to hire, transfer, suspend, lay-off, recall, discharge, assign or
discipline employees). If he can only recommend the exercise of any
of these powers, he is only a supervisor, hence, may join, assist or
form a supervisors organization.
5. TEST OF SUPERVISORY STATUS
The test of "supervisory" or "managerial status" depends on whether a person
possesses authority to act in the interest of his employer in the matter specified
in Article 212 (k) of the Labor Code and Section 1 (m) of its Implementing
Rules and whether such authority is not merely routinary or clerical in nature,
but requires the use of independent judgment. Thus, where such
recommendatory powers as in the case at bar, are subject to evaluation, review
and final action by the department heads and other higher executives of the
company, the same, although present, are not effective and not an exercise of
independent judgment as required by law.
It is the nature of an employee's functions and not the nomenclature or title
given to his job which determines whether he has rank-and-file or managerial
status. Among the characteristics of managerial rank are: (1) He is not subject
to the rigid observance of regular office hours; (2) His work requires the
consistent exercise of discretion and judgment in its performance; (3) the output
produced or the result accomplished cannot be standardized in relation to a
given period of time; (4) He manages a customarily recognized department or
subdivision of the establishment, customarily and regularly directing the work
of other employees therein; (5) He either has the authority to hire or discharge
other employees or his suggestions and recommendations as to hiring and
discharging, advancement and promotion or other change of status of other
employees are given particular weight; and (6) As a rule, he is not paid hourly
wages nor subjected to maximum hours of work.
LABOR RELATIONS
6.2 How Many? How Few?
What is essential is the nature of the employees function and not the
nomenclature or title given to the job which determines whether the employee
has rank-and-file or managerial status or whether he is a supervisory employee.
7. CONFIDENTIAL EMPLOYEES
7.1 First Swing: Inclusion Among Rank-and-File
7.2 Second Swing: Exclusion from Rank-and-File
Art. 245 of the Labor Code does not directly prohibit confidential
employees from engaging in union activities. However, under the
doctrine of necessary implication, the disqualification of managerial
employees equally applies to confidential employees. The
confidential-employee rule justifies exclusion of confidential
employees because in the normal course of their duties they become
aware of management policies relating to labor relations. It must be
stressed, however, that when the employee does not have access to
confidential labor relations information, there is no legal prohibition
LABOR RELATIONS
abridged in the workplace, the abridgment is termed ULP (unfair
labor practice).
Article 246, is both (in mixed metaphors), the conceptual mother and
the formidable fortress of the prohibition expounded in the next three
articles.
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Title VI
UNFAIR LABOR PRACTICES
Chapter I
CONCEPT
Under the old rules, security guards were barred from joining a labor
organization of the rank-and-file. Under RA 6715, they may now
freely join a labor organization of the rank-and-file or that of the
supervisory union, depending on their rank.
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Consequently, unfair labor practices are not only violations of the civil
rights of both labor and management but are also criminal offenses
against the State which shall be subject to prosecution and punishment
as herein provided.
Subject to the exercise by the President or by the Secretary of Labor
and Employment of the powers vested in them by Articles 263 and
264 of this Code, the civil aspects of all cases involving unfair labor
practices, which may include claims for actual, moral, exemplary and
other forms of damages, attorneys fees and other affirmative relief,
shall be under the jurisdiction of the Labor Arbiters. The Labor
Arbiters shall give utmost priority to the hearing and resolution of all
cases involving unfair labor practices. They shall resolve such cases
within thirty (30) calendar days from the time they are submitted for
decision.
Recovery of civil liability in the administrative proceedings shall bar
recovery under the Civil Code.
LABOR RELATIONS
democracy, the right to self-organize has been enshrined in the
Constitution, and any act intended to weaken or defeat the right is
regarded by law as an offense. The offense is technically called
unfair labor practice (ULP). Literally, it does not mean an unfair
practice by labor but a practice unfair to labor, although the offender
may either be an employer or a labor organization.
The victim of the offense is not just the workers as a body and the
well-meaning employers who value industrial peace, but the State as
well. Thus, the attack to this constitutional right is considered a crime
which therefore carries both civil and criminal liabilities.
A consideration of the entire law on the matter clearly discloses the intention of
the lawmaker to consider acts which are alleged to constitute unfair labor
practices as violations of the law or offenses, to be prosecuted in the same
manner as a criminal offense. The reason for this provision is that the
commission of an unfair labor practice is an offense against a public right or
interest and should be prosecuted in the same manner as a public offense. The
reason for the distinction between an unfair labor practice case and a mere
violation of an employer of its contractual obligation towards an employees is,
x x x that unfair labor practice cases involve violations of a public right or
policy, to be prosecuted like criminal offenses whereas a breach of an
obligation of the employer to his employee is only a contractual breach to be
redressed like an ordinary contract or obligation.
1.1 Elements
Commission of unfair labor practice at the enterprise level needs the
presence of certain elements: first, there is employer-employee
relationship between the offender and the offended; and second, the
act done is expressly defined in the Code as an act of unfair labor
practice. The first element is required because ULP is negation of, a
counteraction to, the right to organize which is available only to
employees in relation to their employer. No organizational right can
be negated or assailed if employer-employee relationship is absent in
the first place.
The second element is that the act done is prohibited by the Code,
specifically in Articles 248 and 261 for an employer and Article 249
for a labor organization. Art. 212(k) emphatically defines unfair
labor practice as any unfair labor practice as expressly defined in
this Code. Art. 261 amplifies Art. 248(i) by stating that violation of a
CBA is unfair labor practice only if the violation is gross in character.
The prohibited acts, it should be stressed, are all related to the
workers self-organizational right and to the observance of a
collective bargaining agreement (CBA). The only possible exception
is Art. 248(f) referring to dismissing or prejudicing an employee
giving testimony under this Code [regardless of the subject of the
testimony].
Because ULP is and has to be related to the right to self-organization
and to the observance of the CBA, it follows that not every unfair act
is unfair labor practice.
ULP, therefore, has a limited, technical meaning because it is a labor
relations concept with a statutory definition. It refers only to acts
opposed to workers right to organize. Without that element, the act,
no matter how unfair, is not unfair labor practice as legally defined.
Stripped of legalese, unfair labor practice, when committed by the
employer, commonly connotes anti-unionism.
1.2 Prejudice to Public Interest not an Element of U.L.P.
LABOR RELATIONS
of the recognized collective bargaining agent, if such non-union
members accept the benefits under the collective bargaining
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;
LABOR RELATIONS
the employers' interest and not for the purpose of defeating or
circumventing the rights of employees under special laws or valid
agreement and are not exercised in a malicious, harsh, oppressive,
vindictive or wanton manner or out of malice or spite.
Employees have the right to strike, but they have no right to continue
working on their own terms while rejecting the standards desired by
their employer. Hence, an employer does not commit an unfair labor
practice by discharging employees who engaged in a slowdown, even
if their object is a pay increase which is lawful. Moreover, an
employer does not violate the act by discharging only some of the
employees who participate in the slowdown where he discharges them
to serve as an example to stop the slowdown and not for
discriminatory reasons.
4. DETERMINATION OF VALIDITY
Necessarily, determining the validity of an employers act involves an
appraisal of his motives.
An employer may treat freely with an employee and is not obliged to support
his actions with a reason or purpose. However, where the attendant
circumstances, the history of employer's past conduct and like considerations,
coupled with an intimate connection between the employer's action and the
union affiliations or activities of the particular employee or employees taken as
a whole raise a suspicion as to the motivation for the employer's action, the
failure of the employer to ascribe a valid reason therefor may justify an
inference that his unexplained conduct in respect of the particular employee or
employees was inspired by the latter's union membership or activities.
While the presence of this mere suspicion neither takes the place of evidence
that the employer's conduct was improperly motivated nor dispenses with the
requirement of proof of the fact, such suspicion, when coupled with other facts
which in themselves, might have been inadequate to support an adverse finding
against the employer, may suffice to sustain a finding that the employer's action
violated the prohibition of the Act.
LABOR RELATIONS
When an employer engages in surveillance or takes steps leading his
employees to believe it is going on, a violation results because the
employees come under threat of economic coercion or retaliation for
their union activities. Unlawful surveillance was properly found
where supervisors were present near the place where union meeting
was being held to check the names of employees leaving the meeting.
5.6 Economic Inducements
A violation results from an employers announcement of benefits prior
to a representation election, where it is intended to induce the
employees to vote against the union.
It is well-settled rule that while a representation election is pending,
the conferral of employee benefits for the purpose of inducing the
employees to vote against a union is unlawful.
5.7 Employers Expression of Opinion; Totality of Conduct Doctrine
The doctrine holds that the culpability of employers remarks was to
be evaluated not only on the basis of their implications, but against the
background of and in conjunction with collateral circumstances.
(1) Letter to individual employeesIt is an act of interference for the employer
to send a letter to all employees notifying them to return to work at a time
specified therein, otherwise new employees would be engaged to perform their
jobs. Individual solicitation of the employees or visiting their homes, with the
employer or his representative urging the employees to cease union activity or
cease striking, constitutes unfair labor practice. All the above-detailed activities
are unfair labor practices because they tend to undermine the concerted activity
of the employees, an activity to which they are entitled free from the employer's
molestation.
(2) Strike-breakingWhen the respondent company offered reinstatement and
attempted to "bribe" the strikers with "comfortable cots," "free coffee and
occasional movies," "overtime" pay for "work performed in excess of eight
hours," and "arrangements" for their families, so they would abandon the strike
and return to work, they were guilty of strike-breaking and/or union-busting
and, consequently, of unfair labor practice.
(3) Acts violative of right to organizeViolative of the right to organize, form
and join labor organizations are the following acts: the offer of a Christmas
bonus to all "loyal" employees of a company shortly after the making of a
request by the union to bargain; wage increases given for the purpose of
mollifying employees after the employer has refused to bargain with the union,
or for the purpose of inducing striking employees to return to work; the
employer's promises of benefits in return for the strikers' abandonment of their
strike in support of their union; and the employer's statement, made about 6
weeks after the strike started, to a group of strikers in a restaurant to the effect
that if the strikers returned to work, they would receive new benefits in the
form of hospitalization, accident insurance, profit-sharing, and a new building
to work in.
(4) Test of interference or coercionThe test of whether an employer has
interfered with and coerced employees within the meaning of subsection (a) (1)
is whether the employer has engaged in conduct which it may reasonably be
said tends to interfere with the free exercise of employees' rights under section
3 of the Act, and it is not necessary that there be direct evidence that any
employee was in fact intimidated or coerced by statements of threats of the
employer if there is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-organization and collective
bargaining.
(5) The totality of conduct doctrinethe letters of the company president to
the individual strikers should not be considered by themselves alone but should
be read in the light of the preceding and subsequent circumstances. The letters
should be interpreted according to the "totality of conduct doctrine," whereby
LABOR RELATIONS
another to escape union labor regulations or state laws, but the term is
also used to describe a plant removed to a new location in order to
discriminate against employees at the old plant because of their union
activities. Moreover, it has been held that where a plant removal is for
business reasons but the relocation is hastened by anti-union
motivation, the early removal is an unfair labor practice. It is
immaterial that the relocation is accompanied by a transfer of title to a
new employer who is an alter ego of the original employer.
Runaway shop refers to business relocation animated by anti-union
animus. Sameness of business is not reason enough to show run-away
shop to pierce the veil of separate corporate entity.
A "runaway shop" is defined as an industrial plant moved by its owners from
one location to another to escape union labor regulations or state laws, but the
term is also used to describe a plant removed to a new location in order to
discriminate against employees at the old plant because of their union activities.
It is one wherein the employer moves its business to another location or it
temporarily closes its business for anti-union purposes. A "runaway shop" in
this sense, is a relocation motivated by anti-union animus rather than for
business reasons.
Mere ownership by a single stockholder or by another corporation of all or
nearly all of the capital stock of a corporation is not of itself sufficient ground
for disregarding the separate corporate personality.
This fiction of corporate entity can only be disregarded in certain cases such as
when it is used to defeat public convenience, justify wrong, protect fraud, or
defend crime. To disregard said separate juridical personality of a corporation,
the wrongdoing must be clearly and convincingly established.
LABOR RELATIONS
officers of the former union; that officers and members of the rival union were
dismissed allegedly pursuant to a retrenchment policy of the company, after
they had presented demands for the improvement of the working conditions
despite its alleged retrenchment policy; and that, after dismissal of the aforesaid
officers of the rival labor union, the company engages the services of new
laborers.
In its broad sense, however that is, in the sense of the employers circulating a
list of former employees of notorious laziness or negligence in the performance
of their duties or of incorrigible propensity to create trouble in the place of
employment, it may be a proper measure for the protection of employers. Thus,
it has been held that unless the action of the employers in combining or in
passing communications among themselves for the purpose of excluding
unwanted workers from employment, constitutes a libel or slander (and
according to some decisions the defamation, to be actionable, must be
malicious), the excluded employee possesses no right of action because the
employers community of interest acts both to justify the combination and to
privilege the communication.
Thus, the following acts have been held unfair labor practices: (1) the
dismissal of a laborer in account of union activities of his brother; (2)
the discharge of an employee due to the union activities of the wife;
and (3) the discharge of a wife due to the union activities of the
husband.
9.7 Test of Discrimination
For the purpose of determining whether or not a discharge is
discriminatory, it is necessary that the underlying reason for the
discharge be established. The fact that a lawful cause for discharge is
available is not a defense where the employee is actually discharged
because of his union activities. If the discharge is actually motivated
by a lawful reason, the fact that the employee is engaged in union
activities at the time will not lie against the employer and prevent him
from the exercise of his business judgment to discharge an employee
for cause.
Where circumstances establish a discriminatory motive on the part of
the employer, the assignment of a just cause will be unavailing. If it
can be established that the true and basic inspiration for the
employers act is derived from the employees union affiliations or
activities, the assignment by the employer of another reason, whatever
its semblance of validity, is unavailing.
LABOR RELATIONS
Maintenance of Membership Shop: No employee is compelled to join
the union, but all present or future members must, as a condition of
employment, remain in good standing in the union.
It is true that disaffiliation from a labor union is not open to legal objection. It is
implicit in the freedom of association ordained by the Constitution. But this
Court has laid down the ruling that a closed shop is a valid form of union
security, and such provision in a collective bargaining agreement is not a
restriction of the right of freedom of association guaranteed by the Constitution.
LABOR RELATIONS
implication any dismissal of employees already working before the
agreement was made.
LABOR RELATIONS
only from employees deriving economic benefits from the unionnegotiated CBA.
10. SIXTH U.L.P.: DISCRIMINATION
TESTIMONY (ART. 248[f])
BECAUSE
OF
The law protects not only the employees right to form, join, or assist
labor organizations but also their right to testify on matters covered by
the Code. If this right is not protected, the right to self-organization
will be indirectly defeated because the employees will fear their
employers reprisal. By protecting the employees right to testify, the
law therefore shields the workers right to self-organization from
indirect assault by the employer. Thus, it is ULP to dismiss,
discharge, or otherwise prejudice or discriminate against an employee
for having given or being about to give testimony under this Code.
Employers reprisal against a testifying employee is ULP because,
furthermore, it violates the right to engage in concerted activity, a
right included in the right to self-organize (Art. 246) and reiterated in
Article 263(b). Concerted activity does not always require a number
of people acting in unison. An employee acting alone in pursuing a
group interest may be said to be doing a concerted activity which the
employer may not curtail.
To support a cease and desist order, the record must show that the
restrained misconduct was an issue in the case; that there was a
finding of fact of said misconduct and such finding of fact was
supported by evidence. The Court is not authorized to issue blank
cease and desist orders, but must confine its injunction orders to
specific act or acts which are related to past misconduct. A cease and
desist order is not invalidated because the act complained of was
voluntarily discontinued prior to or during the course of the
proceedings. But if the act complained of happened so long a time that
there is no longer any threat or probability of a recurrence, a cease and
desist order will not be justified.
14.2 Affirmative Order
The Court does not only have the power to issue negative or
prohibitive orders but also affirmative or positive orders.
The order may usually direct the full reinstatement of the discharged
employees to their substantially equivalent position without prejudice
to their seniority and other rights and privileges.
14.3 Order to Bargain; Mandated CBA
Likewise, when an employer has failed or refused to bargain with the
proper bargaining agent of his employees, the Court may, in addition
to the usual cease and desist orders, issue an affirmative order to
compel the respondent to bargain with the bargaining agent.
14.4 Disestablishment
Where the employer had initiated, dominated or assisted in or
interfered with the formation or establishment of any labor
organization or contributed financial or other support to it, the Court
may issue, in addition to a cease and desist order, an order directing
LABOR RELATIONS
and conditions under which membership or continuation of
membership is made available to other members;
(c) To violate the duty, or refuse to bargain collectively with the
employer, provided it is the representative of the employees;
(d) To cause or attempt to cause an employer to pay or deliver or
agree to pay or deliver any money or other things of value, in the
nature of an exaction, for services which are not performed or not to
be performed, including the demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorneys fees from employers
as part of the settlement of any issue in collective bargaining or any
other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the
officers, members of governing boards, representatives or agents or
members of labor associations or organizations who have actually
participated in, authorized or ratified unfair labor practices shall be
held criminally liable. (As amended by Batas Pambansa Bilang 130,
August 21, 1981).
________
1. RESTRAINT OR COERCION BY LABOR ORGANIZATION;
INTERFERENCE BY UNION IS NOT ULP
A labor organization commits ULP when it restrains or coerces
employees in their right to self-organization. This provision of Art.
249(a) parallels with Art. 248(a). But interference is left out. This
deliberate omission is the equivalent of license of labor organization
to engage in those practices which, at the hands of an employer,
would constitute actionable unfair labor practices by way of
interference. In other words, a labor organization may interfere in
the employees right to self-organization as long as the interference
does not amount to restraint or coercion.
Interference by a labor organization is not ULP because interfering in
the exercise of the right to organize is itself a function of selforganizing.
1.1 Coercing Participation in Strike
The provision is violated by a unions restraining or coercing an
employee in the exercise of his right to refuse to participate in or
recognize a strike. Similarly, violation is committed when a union
threatens employees with bodily harm in order to force them to strike.
2. UNION-INDUCED DISCRIMINATION
LABOR RELATIONS
The broad rule is that the union has the right to determine its
membership and to prescribe the conditions for the acquisition and
retention thereof. Consequently, admission to membership may not be
compelled. This rule, however, is qualified in the case of labor unions
holding a monopoly in the supply of labor, either in a given locality,
or as regards a particular employer by reason of a closed-shop or
similar agreements. In such case, qualified applicants may not be
arbitrarily excluded from membership and their admission may not be
barred by unreasonable rules.
It is well settled that labor unions are not entitled to arbitrarily exclude qualified
applicants for membership, and a closed-shop provision would not justify the
employer in discharging, or a union in insisting upon the discharge of, an
employee whom the union thus refuses to admit to membership, without any
reasonable ground therefor.4 Needless to say, if said unions may be compelled
to admit new members, who have the requisite qualifications, with more reason
may the law and the courts exercise the coercive power when the employee
involved is a long standing union member, who, owing to provocations of
union officers, was impelled to tender his resignation, which he forthwith
withdrew or revoked. Surely, he may, at least, invoke the rights of those who
seek admission for the first time, and cannot arbitrarily he denied readmission.
The Court stresses, however, that union security clauses are also governed by
law and by principles of justice, fair play, and legality. Union security clauses
cannot be used by union officials against an employer, much less their own
members, except with a high sense of responsibility, fairness, prudence, and
judiciousness.
3. REFUSAL TO BARGAIN
ULP under Art. 249(c) is intended to insure that unions approach the
bargaining table with the same attitude of willingness to agree as the
Act requires of management.
1.1 Definition
A union member may not be expelled from her union, and consequently from
her job, for personal or impetuous reasons or for causes foreign to the closedshop agreement and in a manner characterized by arbitrariness and
whimsicality.
LABOR RELATIONS
important element in employment, and consent assures stability
because parties who have accepted an agreement will live by its
terms.
2. EMERGENCE OF COLLECTIVE BARGAINING
First in Great Britain, but not much later in other countries, working
men sought to protect themselves against the harsh effects of new
machines, new methods of production, new divisions of labor and
new intensities of competition by forming organizations capable of
representing their interests as a group vis--vis employees and the
State.
The credit for coining the expression belongs to Beatrice Webb, who
first used it in 1891 in her study on The Cooperative Movement in
Great Britain.
In non-English speaking countries, particularly on the European
continent, where the process of collective bargaining has an equally
long history, the emphasis was placed on the term collective
agreement because during the early period the workers aimed not so
much at establishing the procedure of bargaining itself as at having
such agreements recognized and enforced as legally binding contracts.
2.2 Adoption in the Philippines
In the Philippines the idea of collective bargaining first gained formal
and official recognition through Commonwealth Act No. 213,
approved by President Manuel L. Quezon on November 21, 1936.
But it is the Industrial Peace Act (RA No. 875, approved by President
Elpidio Quirino on June 17, 1953), that defined collective bargaining
and outlined its procedure.
3. PARTIES TO COLLECTIVE BARGAINING
1.2 Rationale
By collective bargaining the employee shares through his chosen
representatives in fixing the conditions under which he works, and a
rule of law is substituted for absolute authority.
LABOR RELATIONS
the basic reason the bargaining procedure is governed primarily by
agreement of the parties.
(3) a demand to bargain under Article 251, par. (a) of the New Labor
Code.
The recognized or certified labor union and its employer may adopt
such procedures and processes they may deem appropriate and
necessary for the early termination of their negotiations. They shall
name their respective representatives to the negotiation, schedule the
number and frequency of meetings, and agree on wages, benefits and
other terms and conditions of work for all employees covered in the
bargaining unit.
7. MULTI-EMPLOYER BARGAINING
Collective bargaining may take place at the national, industry, or
enterprise level.
The Philippines so far has tried only enterprise-level, or decentralized
bargaining.
7.1 Rationale of Multi-employer Bargaining
6. SINGLE ENTERPRISE
BROADLY DESCRIBED
PROCEDURE
The law gives primacy to free collective bargaining (Art. 211) and
allows the parties to devise their bargaining rules (Art. 251). This is
LABOR RELATIONS
What may be readily acceptable to one employer may be considered
as financially disastrous by another.
To arrive at multi-employer agreements is much more difficult than to
arrive at single-employer contracts. The expanded size of the unit
composed of many heterogeneous groups leads to intensive intraorganizational bargaining both on the unions and on the employers
side. At times, these intra-organizational pressures may lead to
lengthy delays in negotiations and even to breakdown of bargaining.
(c) Each employer or concerned labor union shall express its willingness or
refusal to participate in multi-employer bargaining in writing, addressed to its
corresponding exclusive bargaining agent or employer. Negotiations may
commence only with regard to respective employers and labor unions who
consent to participate in multi-employer bargaining;
(d) During the course of negotiations, consenting employers and the
corresponding legitimate labor unions shall discuss and agree on the following:
1) the manner by which negotiations shall proceed;
2) the scope and coverage of the negotiations and the agreement; and
3) where appropriate, the effect of the negotiations on current agreements or
conditions of employment among the parties.
Section 7. Posting and registration of collective bargaining agreement. - Two
(2) signed copies of collective bargaining agreement reached through multiemployer bargaining shall be posted for at least five ( 5) days in two
conspicuous areas in each workplace of the employer units concerned. Said
collective bargaining agreement shall affect only those employees in the
bargaining units who have ratified it.
The same collective bargaining agreement shall be registered with the
Department in accordance with the following Rule.
7.4 Optional
Under D.O. No. 40-03 multi-employer bargaining is purely optional
for employers and unions.
Unlike other bargaining units, the multi-employer unit is based
primarily on the consent of the firms involved.
________
Article 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.
________
Article 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.
________
1. DUTY TO BARGAIN DEFINED
The law contemplates and defines two situations when the duty to
bargain exists: Situation one, when there is yet no collective
bargaining agreement (Art. 252), and Situation two, where a CBA
exists (Art. 253).
For Situation One, the duty to bargain means in essence the mutual
obligation of the employer and the employees majority union to meet
and convene.
The purposes of the meeting and convening are:
(1) to negotiate an agreement on the subjects of:
LABOR RELATIONS
The failure of refusal of an employer to bargain collectively with his
employees constitutes an enjoinable unfair labor practice not only
under the subdivision of the Act dealing expressly with collective
bargaining, but also under the subsection making it an unfair labor
practice to: interfere with, restrain or coerce employees in the
exercise of their guaranteed rights, on the theory that refusal by an
employer to bargain collectively with his employees constitutes
interference with the latters right of self-organization.
(a) wages, (b) hours of work, and (c) all other terms and conditions of
employment including proposals for adjusting grievances or questions
arising under such agreement; and
The basic rule is that if the transfer of assets and employees from one
employer to another leaves intact the identity of the employing
enterprise, the transferors duty to recognize and bargain with an
incumbent union devolves upon the transferee as successor
employer. That means that an acquiring employer is a successor to
the bargaining obligations of his predecessor if there is a continuity in
the business operation. Only a high degree of enterprise continuity
will justify imposing obligations under a contract with the union to
which the new employer was not a party.
A mere change in ownership of a business is insufficient to alter a
unions status as bargaining representative.
2.3 Successor Employer: Continuity and Identity
In making the determination as to whether an employer is successor,
the NLRB looks to the totality of circumstances to determine whether
there has been a substantial and material alteration in the employing
enterprise. If there is a substantial and material alteration in the
employing enterprise, the new employer need not bargain with the
incumbent union.
2.4 Conversion to Independent Franchise or Operation
A decision to withdraw capital from a company-operated facility and
relinquish the operating control to an independent dealership lies very
much at the core of entrepreneurial control, and hence is not a
mandatory subject of bargaining
2.5 Do Economic Exigencies Justify Refusal to Bargain?
An employer has been held not guilty of a 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.
2.6 Acts not Deemed Refusal to Bargain
The duty to bargain is not violated by:
(1) adoption of an adamant bargaining position in good faith,
particularly when the company is operating at a loss;
LABOR RELATIONS
(2) refusal to bargain over demands for commission of unfair labor
practices;
3. SECOND U.L.P. IN
MANDATORY SUBJECTS
BARGAINING:
THE
(4) Bonuses;
We agree with the pronouncement that 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 tolerated and allowed with impunity to resort
to schemes feigning negotiations by going through empty gestures.
EVADING
(6) Seniority;
(7) Transfer;
(8) Lay-offs;
(9) Employee workloads;
(10) Work rules and regulations;
LABOR RELATIONS
We take note of the "middle ground" approach employed by the Secretary in
this case which. we do not necessarily find to be the best method of resolving a
wage dispute. Merely finding the midway point between the demands of the
company and the union, and "splitting the difference" is a simplistic solution
that fails to recognize that the parties may already be at the limits of the wage
levels they can afford. It may lead to the danger too that neither of the parties
will engage in principled bargaining; the company may keep its position
artificially low while the union presents an artificially high position, on the fear
that a "Solomonic" solution cannot be avoided. Thus, rather than encourage
agreement, a "middle ground approach" instead promotes a "play safe" attitude
that leads to more deadlocks than to successfully negotiated CBAs.
Company rules relating to safety and work practices come within the
meaning of the phrase other terms and conditions of employment as
used in the Act and, therefore, constitute a mandatory subject of
collective bargaining.
3.2a Code of Conduct
Work rules and regulations are commonly compiled into a booklet
usually called Code of Discipline or Code of Conduct. Such dos
and donts for employees of the enterprise are work rules, forming
part of terms and conditions of employment, that are proper subjects
of collective bargaining. Hardly may the employer contend that they
are non-negotiable matters.
3.3 Management Prerogatives Clause
An employer does not commit an unfair labor practice by insisting, to
the point of a bargaining impasse, on the inclusion in the contract of a
management prerogatives clause, even though some of the matters
covered by the clause are conditions of employment which are
mandatory subjects of bargaining under 29 USCS Sec. 158(d). Thus,
an employers insistence that its decisions regarding hiring and tenure
of employment should not be reviewable by arbitration is not a refusal
to bargain.
3.4 Union Discipline Clause
An employer may bargain to an impasse over his proposal that the
union eliminate a piecework ceiling imposed by a union rule which
subjects members to discipline for exceeding the production quota.
However, an employers insistence to the point of a bargaining
impasse on the unions withdrawal of fines imposed on memberemployees who crossed a picket line around the employers plant is an
unlawful refusal to bargain, since the right not to withdraw fines is an
internal union affairs, a matter involving relations between employees
and their unions, and therefore not a mandatory bargaining item.
3.5 Arbitration, Strike-Vote, or No-Strike Clause
An employer may lawfully bargain to an impasse over his proposal
that the collective bargaining agreement include an arbitration clause
or a no-strike clause which prohibits the employees from striking
during the life of the agreement.
3.6 No-Lockout Clause; Clause Fixing Contractual Term
LABOR RELATIONS
Deadlock does not mean the end of bargaining. It signals rather the
need to continue the bargaining with the assistance of a third party as
conciliator or arbitrator whose first aim is to get the parties back to the
negotiating table and help them craft a win-win solution.
Stated in another way, the ruling means that bargaining to the point of
deadlock may or may not amount to bargaining in bad faith depending
on whether the insistence refers to a mandatory or a non-mandatory
subject of bargaining.
The reason is that the duty to bargain requires meeting and convening
on terms and conditions of employment but does not require assent to
the other partys proposals.
Over a non-mandatory subject, on the other hand, a party may not
insist on bargaining to the point of impasse, otherwise his insistence
can be construed as bargaining in bad faith. It may be construed as
evasion of the duty to bargain; such evasion is ULP.
The above rulings do not mean that non-mandatory subjects cannot be
proposed or that the proponent cannot demand serious discussion of
such proposal. What the rulings forbid is the posture of making
settlement on a non-mandatory subject a precondition to the
discussion or settlement of a mandatory subject. If a non-mandatory
subject is proposed and agreed upon, the agreeing party, by itself, is
binding.
3.11 When Is There Deadlock or Impasse?
A bargaining impasse over an issue exists where good faith bargaining
on the part of the parties has failed to resolve the issue and there are
no definite plans for further efforts to break the deadlock.
Impasse, within the meaning of the federal labor laws, presupposes
reasonable effort at good faith bargaining which, despite noble
intentions, does not conclude in an agreement between the parties. In
the NLRBs view, whether a bargaining impasse exists is a matter of
judgment dependent on such factors as the bargaining history, the
parties good faith in negotiations, the length of the negotiations, the
importance of the issue or issues as to which there is disagreement,
and the contemporaneous understanding of the parties as to the state
of negotiations.
3.11a Duty to Bargain When There Is Deadlock or Impasse
4.3 Instances of Bad Faith: Delay of, or Imposing Time Limit on,
Negotiations
An unwarranted delay in negotiations may be evidence of bad faith on
the part of the employer. However, an employer has been held not
guilty of bad faith for failing to complete a collective bargaining
contract during a 3-year period, where many conferences had been
held during the period, even though the employer had insisted on a
no-strike clause and had raised wages during negotiations for the
purpose of meeting competition.
The National Labor Relations Board of the United States reported that
lack of good faith is indicated where the employer engages in unfair
labor practices while bargaining with the union; where it engages in
dilatory tactics during negotiations; or where it institutes a wage cut
by unilateral action and without consulting the majority
representative.
Nonetheless, the prior adjudication of bad faith on an earlier occasion
is not itself substantial evidence of present bad faith.
As the Court held in the case of Kiok Loy v. NLRC, 141 SCRA 179, 186 (1986),
the company's refusal to make counter-proposal to the union's proposed CBA is
an indication of its bad faith.
LABOR RELATIONS
an attitude of take it or leave it, but presupposes a desire to reach an
ultimate agreement to enter into a collective bargaining contract. An
employers proposals which could not be offered with any reasonable
expectation that they would be accepted by the union constitute
surface bargaining.
Repeated shifts in position and attitude on the part of an employer
whenever a tentative agreement is reached are evidence of a refusal to
bargain collectively in good faith. It has also been held that an
employer cannot reject a unions acceptance of the employers counter
offer on the ground that the union had earlier rejected the offer.
Surface bargaining is defined as "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. x x x We,
likewise, do not agree that the Union is guilty of ULP for engaging in blue-sky
bargaining or making exaggerated or unreasonable proposals.
LABOR RELATIONS
Part of good-faith bargaining, and a method to expedite the process, is
supplying of information to the other party, as required by law. It
should be recalled that under Art. 242 one of the rights of a legitimate
labor organization which is certified as the exclusive bargaining agent,
is to ask for and be furnished with the employers annual audited
financial statements, including the balance sheet and the profit and
loss statement. Such information is crucial in bargaining.
An employer is under a duty, upon request of the bargaining
representative, to provide information relevant to the issues at the
bargaining table. Refusal to provide relevant information after the
same has been requested constitutes per se violation of the duty to
bargain. Relevant information or data may include information
concerning the employees in the bargaining unit, such as their names,
addresses, and seniority standing, or concerning the financial status of
the employer, especially where needed to substantiate claims of
inability to pay.
5. FOURTH U.L.P. IN BARGAINING: GROSS VIOLATION OF
THE CONTRACT
At this stage, the negotiations are over; the document has been signed,
sealed, and delivered. Implementation should follow. But at this stage
the collective bargaining process is not yet over, and the duty to
bargain is still operative because such duty further requires faithful
adherence to the contractual provisions. Violation of the contract
amounts to ULP, if the violation is gross.
6.
RATIFICATION
REQUIREMENTS
BY
THE
CBU;
MANDATORY
7. EXECUTION OF CONTRACT
A party to a collective bargaining may be required to sign a contract
where the agreement has been reached by the parties and only one
partys refusal to execute a contract is preventing its being carried into
effect. Such refusal is an unfair labor practice
7.1 Unwritten or Unsigned Agreement
American courts have held that a collective bargaining agreement is
valid though not reduced to writing or signed, if neither party requests
a written instrument.
It is believed that failure to register the CBA does not make it invalid
or unenforceable. Its non-registration, however, renders the contractbar rule inoperative.
8. REGISTRATION OF C.B.A.
The collective agreement, having been properly ratified, should be
registered with the DOLE Regional Office where the bargaining union
is registered or where it principally operates. Art. 231 requires the
registration within thirty (3) calendar days from execution of the
agreement. Multi-employer collective bargaining agreements shall be
filed with the Bureau.
LABOR RELATIONS
(a) the collective bargaining agreement;
(b) a statement that the collective bargaining agreement was posted in at least
two (2) conspicuous places in the establishment or establishments concerned
for at least five (5) days before its ratification; and
(c) a statement that the collective bargaining agreement was ratified by the
majority of the employees in the bargaining unit of the employer or employers
concerned.
No other document shall be required in the registration of collective bargaining
agreements
________
Article 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 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).
________
1. DURATION OF A C.B.A.
RA No. 9715 (March 21, 2989) has introduced through Art. 253-A a
significant change in setting the durations or terms of a CBA at five
years for the representation aspect and not more than three years for
all other provisions. The representation aspect refers to the
identity and majority status of the union that negotiated the CBA as
the exclusive representative of the bargaining unit. All other
provisions: simply refers to the rest of the CBA, economic as well as
non-economic other than representational.
LABOR RELATIONS
The labor injunction is an employers most effective remedy in labor
dispute. However narrow its scope and form, the issuance of an
injunction for any purpose in a labor dispute will generally tip the
scales of the controversy. The issuance of an injunction in the early
phases of a strike can critically sway the balance of the economic
struggle against the union. Enforced by the courts contempt powers,
even a preliminary injunction is an effectual strike-breaking weapon
because so much time ordinarily elapses between the issuance of a
preliminary injunction and the time when a final decree can be
reviewed on appeal.
1.2 Injunction Issued by Regular Court, When Proper
Regular courts are without authority to issue injunction orders in cases
involving or originating from labor disputes even if the complaint was
filed by non-striking employees and the employer was also made a
respondent to the action or even if the complainant was a customer of
the strike-bound employer or a sister company of the strike-bound
employer, whose premises were picketed by the strikers.
The court may issue an injunction, whether temporary or permanent, as
provided in said section of Republic Act 875, only in a case involving or
growing out of a labor dispute.
________
Article 255. Exclusive bargaining representation and workers
participation in policy and decision-making. The labor organization
designated or selected by the majority of the employees in an
appropriate collective bargaining unit shall be the exclusive
representative of the employees in such unit for the purpose of
collective bargaining. However, an individual employee or group of
employees shall have the right at any time to present grievances to
their employer.
Any provision of 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, to 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. (As
amended by Section 22, Republic Act No. 6715, March 21, 1989).
________
1.
WORKERS
PARTICIPATORY
CONSTITUTIONAL MEANING
RIGHT:
ITS
The crucial question is: what is the meaning or extent of the workers
right to participate in policy and decision-making?
Enlightening in this regard are the deliberations of the 1986
Constitutional Commission. They reveal that the intention was to refer
to participation in grievance procedures and voluntary modes of
settling disputes and not to formulation of corporate programs or
policies.
There are three levels in which employees could influence
management in their decision-making, and one would be at the
corporate level. This would refer to strategic policies pertaining to the
mergers, acquisitions, pricing and marketing policies, disposition of
profits and the like. The second level would be the plant or
LABOR RELATIONS
2.1 Departments Promotion of LMC and Other Councils
Section 1. Creation of labor-management and other councils. - 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.
3. INDIVIDUAL GRIEVANCE
As briefly indicated above, the presence of an employees
organization,--a union, an LMC or other forumdoes not replace the
individual employees right to pursue grievances. Each employee
retains the right to deal with his or her employer, and vice-versa. The
labor organization is a representative of the collective employees, but
this fact does not mean that an employee can act only through the
representative. For these reasons, the law (rt. 255) explicitly preserves
and respects the right of an individual employee or any group of
employees to directly present grievances to their employers at any
time. Even when under investigation, an employee can choose to
handle personally his defense, unassisted by any representative (Art.
277[b]). The second sentence of Art. 255 is meant to be an exception
to the exclusiveness of the representative role of the labor
organization. Such individual right cannot be taken away even by a
unions constitution and by-laws.
American jurisprudence holds that notwithstanding a unions
obligation as exclusive bargaining representative to process the
grievances of all bargaining unit employees, individual employees
may at any time present grievances directly to the employer for
adjustment without the intervention of the bargaining representative,
and without subjecting the employer to liability for refusing to bargain
with the union. However, the adjustment of the grievances must be
consistent with the terms of the current collective bargaining contract
or agreement. Moreover, the bargaining representative must be given
the opportunity to be present at the meeting between the employer and
employee.
4. COLLECTIVE BARGAINING UNIT (CBU) DEFINED
At the enterprise level there are three democratic devices, statutorily
embedded, to advance the cause of industrial peace, namely: airing of
grievance even by an individual employee directly to the employer
anytime; participation in policy and decision-making by employees,
whether unionized or not; and collective bargaining with the employer
by unionized employees.
The collective bargaining that the law envisions occurs between the
employer and the employees comprised in an appropriate collective
bargaining unit (CBU) represented by a union. As initially explained
in Art. 234, the CBU is that group of jobs and jobholders
represented by the recognized or certified union when it bargains with
the employer. The group may comprise all the supervisors or,
separately, all the rank-and-file population in the company. Or it may
be less than all of these two categories, although the law prefers to
have only one grouping per category in one enterprise because the
more solid the unit, the stronger its bargaining capacity. But if a single
unit (only one for all supervisors or only one for all rank-and-file) is
not feasible, the law allows subgroups as bargaining units, provided
only that each sub-group is appropriate. It is appropriate if its
members share substantially common concerns and interests.
LABOR RELATIONS
As defined in D.O. No. 40-03 which is now the revised Book V of the
Rules Implementing the Labor Code, 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.
Within one unit there may be one or more unions. The bargaining unit
therefore is not the same as, and usually a bigger group than, a union.
But only one union should represent the whole CBU in bargaining
with the employer. The chosen union is called the bargaining agent, its
principal being the CBU members themselves.
The bargaining union has to be the majority union, the one where
majority of the CBU members belong.
Representative union, bargaining union, majority union,
bargaining agent, and bargaining representative are one and the
same. It refers to the union that represents the CBU in bargaining or
dealing with the employer.
5. APPROPRIATENESS OF BARGAINING UNIT; FACTORS
CONSIDERED
The determination of what constitutes a proper bargaining unit lies primarily in
the discretion of the Bureau, since no individual factor is given by law decisive
weight. But while the determination of the appropriate collective bargaining
unit (CBU) is a primary function of the Bureau, it is subject to the legal
requirement that proper consideration should be given to all legally relevant
factors.
The basic test of an asserted bargaining unit's acceptability is whether or not it
is fundamentally the combination which will best assure to all employees the
exercise of their collective bargaining rights. Industrial experience indicates
that the most efficacious bargaining unit is one which is comprised of
constituents enjoying a community of interest. This community of interest is
reflected in groups having substantial similarity of work and duties or similarity
of compensation and working conditions.
9. SUMMATION OF SIGNIFICANCE
LABOR RELATIONS
It is helpful to reiterate that the bargaining unit is not the same as the
union; in fact, there may be several unions (majority and minority) in
one bargaining unit. Determining the scope or membership of the
bargaining unit is significant and far-reaching because it leads to the
determination also of: (1) the employees who can vote in the
certification election; (2) the employees to be represented in
bargaining with the employer; and (3) the employees who will be
covered by the resulting CBA.
Distinguishing the CBU from the union is important because
1. in a CE the voters are the CBU, whether union or non-union
members;
2. in CBA ratification the voters are the unit, not just the union
members;
3. in strike voting, the voters are the members of the union, not all of
the unit.
________
Article 256. Representation Issue in Organized Establishments. - In
organized establishments, when a verified petition questioning the
majority status of the incumbent bargaining agent is filed by any
legitimate labor organization including a national union or federation
which has already issued a charter certificate to its local chapter
participating in the certification election or a local chapter which has
been issued a charter certificate by the national union or federation
before the Department of Labor and Employment within the sixty
(60)-day period before the expiration of the collective bargaining
agreement, the Med-Arbiter shall automatically order an election by
secret ballot when the verified petition is supported by the written
consent of at least twenty-five percent (25%) of all the employees in
the bargaining unit to ascertain the will of the employees in the
appropriate bargaining unit. To have a valid election, at least a
majority of all eligible voters in the unit must have cast their votes.
The labor union receiving the majority of the valid votes cast shall be
certified as the exclusive bargaining agent of all the workers in the
unit. When an election which provides for three or more choices
results in no choice receiving a majority of the valid votes cast, a runoff election shall be conducted between the labor unions receiving the
two highest number of votes: Provided, That the total number of votes
for all contending unions is at least fifty percent (50%) of the number
of votes cast. In cases where the petition was filed by a national union
or federation, it shall not be required to disclose the names of the local
chapters officers and members.
At the expiration of the freedom period, the employer shall continue
to recognize the majority status of the incumbent bargaining agent
where no petition for certification election is filed. (As amended by
Section 23, Republic Act No. 6715, March 21, 1989 and Section 10,
Republic Act No. 9481 which lapsed into law on May 25, 2007 and
became effective on June 14, 2007).
________
Article 257. Petitions in Unorganized Establishments. - In any
establishment where there is no certified bargaining agent, a
certification election shall automatically be conducted by the MedArbiter upon the filing of a petition by any legitimate labor
organization, including a national union or federation which has
already issued a charter certificate to its local/chapter participating in
the certification election or a local/chapter which has been issued a
charter certificate by the national union or federation. In cases where
LABOR RELATIONS
The selection of such bargaining agent may take place in an organized
or an unorganized establishment. Organized establishment refers to
an enterprise where there exists a recognized or certified sole and
exclusive bargaining agent. The employer company is unorganized
where no union has yet been duly recognized or certified as
bargaining representative. Art. 256 speaks of an organized firm; Art.
257, of the unorganized.
Whether the proceedings take place in an organized or an unorganized
bargaining unit, and whether the proceedings are called consent
election or certification election, the objective is the same, namely, to
identify the union that will represent the employees in bargaining with
the employer. Until this representation dispute is resolved, no CBA
can be entered into.
In an unorganized establishment, the employer may voluntarily
recognize the bargaining agent. If there are obstacles to this, the
petition to hold an election may be filed anytime by any legitimate
labor organization (LLO), except within 12 months from a previous
CE, run-off, or consent election.
In an organized establishment, on the other hand, voluntary
recognition is not possible. A petition to hold a CE has to be filed
within the freedom period which means the last sixty (60) days of
the fifth year of the expiring CBA; in other words, the contest
between unions comes at intervals of roughly four years and ten
months. The petition may be filed by any LLO, but the petition must
have the written support of at least twenty-five percent (25%) of the
employees in the bargaining unit. The 25% initial support indicates
that the petitioner has a fair chance of winning and that the petition is
not just a nuisance.
Conceivably but rarely an employer may also file a petition for a CE.
The election is conducted under the supervision and control of DOLE
officials. It ends up with a formal and official statement of results,
certifying which union won, if any. Hence, the election is
appropriately called certification election.
Where one casting of votes is not decisive enough to elect a union, the
election officials may require a run-off election if certain other
conditions exist, as explained below.
But a certification election, a run-off election, or a consent election is
needed only when two or more unions are vying for the office of
exclusive bargaining representative (EBR). Where there is but one
union in the bargaining unit and there is ample proof that that union
carries the majority of the employees, the law allows the employer to
voluntarily recognize such union. Voluntary recognition does away
with the more tedious electoral contest between unions.
There are, therefore, three methods to determine the bargaining union:
(1) voluntary recognition; (2) certification election with or without
run-off; and (3) consent election.
2. FIRST METHOD: VOLUNTARY RECOGNITION (V.R.)
The employers voluntary recognition of the employees union
significantly facilitates the bargaining process. The employees,
especially the union leaders and organizers, rejoice when they are able
to convince the employer to voluntarily recognize and subsequently
bargain with their union. But VR requires three concurrent conditions.
LABOR RELATIONS
First, voluntary recognition is possible only in an unorganized
establishment. In an organized setting the employer cannot voluntarily
recognized any new union because the law (Art. 256) requires him to
continue recognizing and dealing with the incumbent union as long as
it has not been properly replaced by another union.
Second, only one union is asking for recognition; if there are two or
more unions asking to be recognized the employer cannot recognize
any of them; the rivalry must be resolved through an election;
Third, the union voluntarily recognized should be the majority union
as indicated by the fact that members of the bargaining unit did not
object to the projected recognition. If no objection is raised, the
recognition will proceed, the DOLE will be informed and CBA
negotiation will commence. If objection is raised, the recognition is
barred, and a certification election or consent election will have to
take place.
2.1 VR Under D.O. No. 40-03
Section 1. When and where to file. - In unorganized establishments with only
one legitimate labor organization, the employer may voluntarily recognize the
representation status of such a union. Within thirty (30) days from such
recognition, the employer and union shall submit a notice of voluntary
recognition with the Regional Office which issued the recognized labor union's
certificate of registration or certificate of creation of a chartered local.
Section 2. Requirements for voluntary recognition. - The notice of voluntary
recognition shall be accompanied by the original copy and two (2) duplicate
copies of the following documents:
(a) a joint statement under oath of voluntary recognition attesting to the fact of
voluntary recognition;
(b) certificate of posting of the joint statement of voluntary recognition for
fifteen (15) consecutive days in at least two (2) conspicuous places in the
establishment or bargaining unit where the union seeks to operate;
(c) the approximate number of employees in the bargaining unit, accompanied
by the names of those who support the voluntary recognition comprising at
least a majority of the members of the bargaining unit; and
(d) a statement that the labor union is the only legitimate labor organization
operating within the bargaining unit.
All accompanying documents of the notice for voluntary recognition shall be
certified under oath by the employer representative and president of the
recognized labor union.
Section 3. Action on the Notice. - Where the notice of voluntary recognition is
sufficient in form, number and substance and where there is no other registered
labor union operating within the bargaining unit concerned, the Regional
Office, through the Labor Relations Division shall, within ten (10) days from
receipt of the notice, record the fact of voluntary recognition in its roster of
legitimate labor unions and notify the labor union concerned.
Where the notice of voluntary recognition is insufficient in form, number and
substance, the Regional Office shall, within the same period, notify the labor
union of its findings and advise it to comply with the necessary requirements.
Where neither the employer nor the labor union failed to complete the
requirements for voluntary recognition under Section 2 of this Rule within
thirty (30) days from receipt of the advisory, the Regional Office shall return
the notice for voluntary recognition together with all its accompanying
documents without prejudice to its re-submission.
Section 4. Effect of recording of fact of voluntary recognition. - From the time
of recording of voluntary recognition, the recognized labor union shall enjoy
the rights, privileges and obligations of an existing bargaining agent of all the
employees in the bargaining unit.
Entry of voluntary recognition shall bar the filing of a petition for certification
election by any labor organization for a period of one (1) year from the date of
entry of voluntary recognition. Upon expiration of this one-year period, any
legitimate labor organization may file a petition for certification election in the
same bargaining unit represented by the voluntarily recognized union, unless a
collective bargaining agreement between the employer and voluntarily
recognized labor union was executed and registered with the Regional Office in
accordance with Rule XVII of these Rules.
Simply said, the last paragraph means that the employer and the union
should conclude and register a CBA within one year from the
voluntary recognition, otherwise, the recognition will lapse and a rival
union may petition for a certification election.
3. SECOND METHOD: CERTIFICATION ELECTION (C.E.)
Whenever there is doubt as to whether a particular union represents the
majority of the rank-and-file employees, in the absence of a legal impediment,
the holding of a certification election is the most democratic method of
determining the employees' choice of their bargaining representative. It is the
appropriate means whereby controversies and disputes on representation may
be laid to rest, by the unequivocal vote of the employees themselves.
Exercising their suffrage through the medium of the secret ballot, they can
select the exclusive bargaining representative that, emboldened by their
confidence and strengthened by their support shall fight for their rights at the
conference table. That is how union solidarity is achieved and union power is
increased in the free society. Hence, rather than being inhibited and delayed, the
certification election should be given every encouragement under the law, that
the will of the workers may be discovered and, through their freely chosen
representatives, pursued and realized.
3.1 Fact-Finding
In labor legislation, certification proceedings is not a litigation in the
sense in which the term is ordinarily understood, but an investigation
of non-adversary and fact finding character. As such, it is not bound
by technical rules of evidence.
The law does not contemplate the holding of a certification election
unless the preliminary inquiry shows a reasonable doubt as to which
of the contending unions represents a majority, or unless ten per
centum of the laborers demand this election. But these grounds
necessarily depend on the weight of the evidence adduced by the rival
unions, and this weight, in turn, cannot be determined properly if the
right to cross examination is denied.
Certification proceedings directly involve only two issues: (a) proper
composition and constituency of the bargaining unit; and (b) veracity
of majority membership claims of the competing unions so as to
identify the one union that will serve as the bargaining representative
of the entire bargaining unit.
But some of the employees may not want to have a union; hence, No
Union is one of the choices (candidates) named in the ballot. If
No Union wins, the company pr the bargaining unit remains
ununionized for at least 12 months, the period known as the 12-month
bar. After that period, a petition for a CE may be filed again.
3.1a Certification Election Differentiated from Union Election
A union election is held pursuant to the union's constitution and bylaws, and the
right to vote in it is enjoyed only by union members. A union election should be
LABOR RELATIONS
bargaining representative until it is replaced by another. And until so
replaced it has the right to retain the recognition by the employer.
The employer, says Article 258, may file a PCE when it has been
asked to bargain. If this happens, the holding of the CE becomes
mandatory if there is no existing registered collective bargaining
agreement. However, instead of itself filing a petition, the employer
usually lets the unions interplead to determine who among them will
bargain with the employer.
Other unions which are interested in joining a certification election
may file a motion for intervention. Such motion is governed by the
same rules that apply to a PCE.
Whether petitioner or intervenor, the union has to be an LLO.
If the petition for certification election was filed by the federation which is
merely an agent, the petition is deemed to be filed by the chapter, the principal,
which must be a legitimate labor organization. The chapter cannot merely rely
on the legitimate status of the mother union.
Where the constitution, by-laws and the list of members who supposedly
ratified the same were not attested to by the union president, and the
constitution and by-laws were not verified under oath, the local union has no
personality to file a petition for certification election it not being a legitimate
labor organization. The petition should be dismissed.
A union that has no legal personality to file a petition for CE has no personality
either to file a petition-in-intervention.
(e) such other matters as may be relevant for the final disposition of
the case.
If at the preliminary conference the unions agree to hold a consent
election, then the PCE will no longer be heard and the unions will
instead prepare for the consent election.
If the unions fail to agree to hold a consent election, the Med-arbiter
proceeds to consider the petition. He may deny and dismiss, or he
may grant, the petition. Denial or grant of the petition is always
appealable to the Secretary. Never appealable, however, is the
approval of a PCE in an unorganized (ununionized) bargaining unit,
the reason being that the law wants the ununionized unionized.
3.7 Action on the Petition: Hearings and Pleadings
If the contending unions fail to agree to a consent election during the
preliminary conference, the Med-arbiter may conduct as many
hearings as he may deem necessary. But the conduct of the hearings
cannot exceed fifteen (15) days from the date of the scheduled
preliminary conference/ hearing. After that time the petition shall be
considered submitted for decision. The Med-arbiter shall have control
of the proceedings. Postponements or continuances are discouraged.
The failure of any party to appear in the hearing(s) when notified or to
file its pleadings shall be deemed a waiver of its right to be heard. The
Med-arbiter, however, upon the agreement of the parties for
meritorious reasons, may allow the cancellation of scheduled
hearing(s). The cancellation of any scheduled hearing(s) shall not be
used as a basis for extending the 15-day period within which to
terminate the same.
LABOR RELATIONS
Excepting Article 258, only a legitimate labor organization (LLO) can
file a petition for certification election. Thus, if the petitioning union
is not listed in the DOLEs list of LLOs or it has no CBA registered in
the DOLE, these facts raise doubt as to its being an LLO, and the
med-arbiter may dismiss the PCE.
But even if the union is listed as LLO or is a party to a CBA, its
legitimacy may still be questioned in a separate and independent
petition for cancellation to be heard and decided by the BLR Director
or the Regional Director himself.
Does the filing of a petition to cancel the petitioners registration
cause the suspension or dismissal of the PCE? No, the mere filing foes
not. To serve as a ground for dismissal of a PCE, the legal personality
of the petitioner should have been revoked or cancelled with
finality.
The filing or pendency of any inter/intra-union dispute and other related labor
relations dispute is not a prejudicial question to any petition for certification
election and shall not be a ground for the dismissal of a petition for certification
election or suspension of proceedings for certification election.
Within ten (10) days from the date of the last hearing, the Med-arbiter
shall issue a formal order denying or granting the petition. In
organized establishments, however, no order or decision shall be
issued by the Med-arbiter during the freedom period.
The reason for the last-mentioned rule is that during the entire 60-day
freedom period, up to its last day, the door should remain open for any
union to file a PCE or a motion for intervention.
The Med-arbiter, after due hearing may dismiss the petition on any of
the following grounds:
(1) Not an LLO
(2) Twelve-month Bar
(3) Negotiation Bar or Deadlock Bar
(4) No 25% Support
(5) Contract Bar; PCE Filed Outside the Freedom Period
The first three grounds are applicable to establishments with or
without a CBA; the last two are pertinent only to an establishment
with a CBA about to expire on its fifth year.
3.8a Ground 1: Petitioner not an LLO
LABOR RELATIONS
Ordinarily, a bargaining agent who failed to secure a CBA within 12 months
could be suspected as a tool of management and should deserve to be replaced.
But if circumstances show that the cause of not having concluded a CBA was
not the unions fault, such union should not be blamed, and a CE should not be
authorized even though no CBA has been concluded despite passage of twelve
months. The situation takes the nature of a deadlock bar.
The 12-month prohibition presupposes that there was an actual conduct of
election i.e. ballots were cast and there was a counting of votes. In this case,
there was no certification election conducted precisely because the first petition
was dismissed, on the ground of a defective petition which did not include all
the employees who should be properly included in the collective bargaining
unit, the certification year bar does not apply.
Neither does this bar apply if in fact there was a failure of election
because less than majority of the CBU members voted. In that case,
another PCE may be filed within six (6) months.
An election held less than a year after an invalid election is not barred.
Also not barred would be a second election held among a group of
employees who had not participated in the first election and had not
been given the opportunity to be represented as part of the unit in the
first election.
A radical change in the size of a bargaining unit within a short period
of time, raising a question as to the majority status of the certified
representative, may also prompt the NLRB to entertain a petition for
an election during the certification year.
The one-year rule does not apply to a unit clarification petition filed
during the certification year.
In a CE, the No Union choice won. Within 12 months from that
election the employer voluntarily recognized a new union and then
concluded with it a CBA. Is the 12-month bar violated? Are the
recognition and the CBA valid?
Excepted from the contract-bar rule are certain types of contracts 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 kind of industrial peace contemplated by the law.
In other words, the court strongly doubted that the union voluntarily
recognized by the employer was really the employees choice. Most
probably, it was a company union.
3.8c Ground 3: Negotiation or Deadlock Bar
Neither will a PCE prosper if the negotiation is caught in a deadlock.
The deadlock does not erase that fact that there is negotiation which is
a barrier to holding a certification election. The parties should be
allowed to try to resolve their deadlock; replacing the negotiating
union will not help.
The Deadlock Bar Rule simply provides that a petition for
certification election can only be entertained if there is no pending
bargaining deadlock submitted to conciliation or arbitration or had
become the subject of a valid notice of strike or lockout. The principal
purpose is to ensure stability in the relationship of the workers and the
management.
A "deadlock" is the counteraction of things producing entire stoppage; there is a
deadlock when there is a complete blocking or stoppage resulting from the
action of equal and opposed forces. The word is synonymous with the word
impasse, which "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 "no reasonable effort in good faith" on the employer
certified bargaining agent, there was to bargain collectively. 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.
election had not been strictly complied with, respondent Director is still
empowered to order that it be held precisely for the purpose of ascertaining
which of the, contending labor organizations shall be the exclusive collective
bargaining agent."
3.8e Ground 5: PCE Filed Outside the Freedom Period; the Contract
Bar
This means that there exists in the bargaining unit a CBA still in effect
at the time the PCE is filed. The ban spans a period of five years,
excluding, however, the last sixty (60) days of the fifth (last) year of
the CBA.
LABOR RELATIONS
bargaining union; the freedom period is a political event involving
only the unions and the employees. The two periods, of course, may
coincide on the fifth year of the CBA.
Registered CBA
To bar a certification election it is no longer necessary that the CBA
be certified; it is enough that it is registered in accordance with Art.
231.
Contract-Bar Rule Applied: Extended CBA Under Deadlock
No petition for certification election may be filed before the onset of
the freedom period not after such period. The old CBA is extended
until a new one is signed.
Section 6, Rule V, Book V of the implementing Rules provides that a petition
for certification election or a motion for intervention can only be entertained
within sixty days prior to the expiry date of an existing collective bargaining
agreement. Otherwise put, the rule prohibits the filing of a petition for
certification election during the existence of a collective bargaining agreement
except within the freedom period, as it is called, when the said agreement is
about to expire.
Article 253 of the Labor Code provides that: "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." Despite the lapse of the formal
effectivity of the CBA the law still considers the same as continuing in force
and effect until a new CBA shall have been validly executed. Hence, the
contract bar rule still applies.
The contract bar rule prohibits the filing of a petition for certification election
during the existence of a collective bargaining agreement except within the
freedom period, as it is called, when the said agreement is about to expire. The
purpose, obviously, is to ensure stability in the relationships of the workers and
the management by preventing frequent modifications of any collective
bargaining agreement earlier entered into by them in good faith and for the
stipulated original period.
The freedom period under Articles 253-A and 256 is different from
and ought not to be mistaken for the other sixty-day period mentioned
in Art. 253. The latter speaks of the right of the parties to propose
modifications to the existing CBA, as an exception to the rule that the
CBA cannot be modified during its lifetime. To clarify terms, the sixty
days in Art. 253 may be called renegotiation notice period or simply
notice/proposal period, in contrast to the freedom period under
Arts. 253-A and 256.
The notice period is the last 60 days of the second or third year of the
nonrepresentational provisions; the freedom period is the last 60 days
of the CBAs fifth year of the representational aspect. The notice
period is an economic event involving the employer and the
true that the petition for CE does not bar the employer and the incumbent union
from renegotiating and renewing the expiring CBA. In other words, a CBA may
be renegotiated before, during, or after the 60-day freedom period. But if during
such period a PCE is filed, the Med-arbiter can order the suspension of the
renegotiation until the representation proceedings finally end.
But in a 2005 decision the Court took one step further. It invalidated
the hasty recognition of a union and the signing of a CBA with that
union where such acts were done while there was a pending petition
for certification election by another union.
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 bar rule are certain types of contracts
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.
A CBA automatically renewed usually operates as a bar to a certification
election. But it is not a bar if the employer has served notice that it will
terminate the contract if and when the union no longer represents the majority
of the employees.
LABOR RELATIONS
Does the Med-arbiter or the Secretary of Labor and Employment have
the authority to determine the existence of an employer-employee
relationship between the parties in a petition for certification election?
All issues pertaining to the existence of employer-employee
relationship or to eligibility to union membership shall be resolved in
the order or decision ranting or denying the petition for certification
election. In other words, those issues do not stall the PCE and they are
not grounds for dismissing a PCE.
It is absurd to suggest that the med-arbiter and Secretary of Labor cannot make
their own independent finding as to the sentence of such relationship and must
have to rely and wait for such a determination by the labor arbiter or NLRC in a
separate proceeding. For then, given a situation where there is no separate
complaint filed with the labor arbiter, the med-arbiter and/or the Secretary of
Labor can never decide a certification election case or any labor-management
dispute properly brought before them as they have no authority to determine the
existence of an employer-employee relationship. Such a proposition is, to say
the least, anomalous.
Once there is a determination as to the existence of such a relationship, the
med-arbiter can then decide the certification election case. 9 As the authority to
determine the employer-employee relationship is necessary and indispensable
in the exercise of jurisdiction by the med-arbiter, his finding thereon may only
be reviewed and reversed by the Secretary of Labor who exercises appellate
jurisdiction under Article 259 of the Labor Code, as amended.
LABOR RELATIONS
Section 17. Appeal. - The order granting the conduct of a certification election
in an unorganized establishment shall not be subject to appeal. Any issue
arising therefrom may be raised by means of protest on the conduct and results
of the certification election.
The order granting the conduct of a certification election in an organized
establishment and the decision dismissing or denying the petition, whether in
an organized or unorganized establishment, may be appealed to the Office of
the Secretary within ten (10) days from receipt thereof.
The appeal shall be verified under oath and shall consist of a memorandum of
appeal, specifically stating the grounds relied upon by the appellant with the
supporting arguments and evidence.
contending unions and the employer, which shall be scheduled within ten (10)
days from receipt of the assignment.
The pre-election conference shall set the mechanics for the election and shall
determine, among others, the following:
(a) date, time and place of the election, which shall not be later than forty-five
(45) days from the date of the first pre-election conference, and shall be on a
regular working day and within the employer's premises, unless circumstances
require otherwise;
(b) list of eligible and challenged voters;
(c) number and location of polling places or booths and the number of ballots to
be prepared with appropriate translations, if necessary;
(d) name of watchers or representatives and their alternates for each of the
parties during election;
(e) mechanics and guidelines of the election.
Section 3. Waiver of right to be heard. - Failure of any party to appear during
the pre-election conference despite notice shall be considered as a waiver to be
present and to question or object to any of the agreements reached in said preelection conference. Nothing herein, however, shall deprive the non-appearing
party or the employer of its right to be furnished notices of subsequent preelection conferences and to attend the same.
Section 4. Minutes of pre-election conference. - The Election Officer shall keep
the minutes of matters raised and agreed upon during the pre-election
conference. The parties shall acknowledge the completeness and correctness of
the entries in the minutes by affixing their signatures thereon. Where any of the
parties refuse to sign the minutes, the Election Officer shall note such fact in
the minutes, including the reason for refusal to sign the same. In all cases, the
parties shall be furnished a copy of the minutes.
The pre-election conference shall be completed within thirty (30) days from the
date of the first hearing.
Section 6. Posting of Notices. - The Election Officer shall cause the posting of
notice of election at least ten (10) days before the actual date of the election in
two (2) most conspicuous places in the company premises. The notice shall
contain:
(a) the date and time of the election;
(b) names of all contending unions;
(c) the description of the bargaining unit and the list of eligible and challenged
voters.
The posting of the notice of election, the information required to be included
therein and the duration of posting cannot be waived by the contending unions
or the employer.
LABOR RELATIONS
payroll which should have been used for the purpose of the election.
However, the unjustified refusal of a company to submit the payroll in
its custody, despite efforts to make it produce it, compelled resort to
the SSS list as the next best source of information. After all, the SSS
list is a public record whose regularity is presumed.
Only the employees who are directly employed by the employer and
working along the activities to which the employer is engaged and
linked by employer-employee relationship are qualified to participate
in the certification election, irrespective of the period of their
employment.
Employees of an independent contractor who undertakes to do a piece
of work for his account and responsibility, with minimum interference
on the part of the other contracting party (indirect employer), not
being laborers or employees of the latter, are not qualified to
participate therein.
In case of disagreement over the voters' list or over the eligibility of voters, all
contested voters shall be allowed to vote. But their votes shall be segregated
and sealed in individual envelopes in accordance with Sections 10 and 11 of
this Rule.
Dismissed Employee
An employee who has been dismissed from work but has contested
the legality of the dismissal in a forum of appropriate jurisdiction at
the time of the issuance of the order for the conduct of a certification
election shall be considered a qualified voter, unless his/her dismissal
was declared final judgment at the time of the conduct of the
certification election.
In Philippine jurisprudence it is now settled that employees who have been
improperly laid off but who have a present, unabandoned right to or expectation
of re-employment, are eligible to vote in certification elections. 10 Thus, and to
repeat, if the dismissal is under question, as in the case now at bar whereby a
case of illegal dismissal and/or unfair labor practice was filed, the employees
concerned could still qualify to vote in the elections.
Probationary Employee
In a certification election all rank-and-file employees in the appropriate
bargaining unit are entitled to vote. This principle is clearly stated in Art. 255 of
the Labor Code which states that the "labor organization designated or selected
by the 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."
Collective bargaining covers all aspects of the employment relation and the
resultant CBA negotiated by the certified union binds all employees in the
bargaining unit. Hence, all rank-and-file employees, probationary or
permanent, have a substantial interest in the selection of the bargaining
representative. The Code makes no distinction as to their employment status as
basis for eligibility in supporting the petition for certification election. The law
refers to "all" the employees in the bargaining unit. All they need to be eligible
to support the petition is to belong to the "bargaining unit.".
affiliate with, or assist any union, and to maintain membership therein. The
right to form or join a labor organization necessarily includes the right to refuse
or refrain from exercising said right. It is self-evident that just as no one should
be denied the exercise of a right granted by law, so also, no one should be
compelled to exercise such a conferred right. The fact that a person has opted to
acquire membership in a labor union does not preclude his subsequently opting
to renounce such membership.
The purpose of a certification election is precisely the ascertainment of the
wishes of the majority of the employees in the appropriate bargaining unit: to
be or not to be represented by a labor organization, and in the affirmative case,
by which particular labor organization. If the results of the election should
disclose that the majority of the workers do not wish to be represented by any
union, then their wishes must be respected, and no union may properly be
certified as the exclusive representative of the workers in the bargaining unit in
dealing with the employer regarding wages, hours and other terms and
conditions of employment. The minority employees who wish to have a
union represent them in collective bargaining can do nothing but wait for
another suitable occasion to petition for a certification election and hope that
the results will be different. They may not and should not be permitted,
however, to impose their will on the majority who do not desire to have a
union certified as the exclusive workers' benefit in the bargaining unit upon
the plea that they, the minority workers, are being denied the right of selforganization and collective bargaining.
The respondents' argument that the petitioners are disqualified to vote because
they "are not constituted into a duly organized labor union" "but members of
the INK which prohibits its followers, on religious grounds, from joining or
forming any labor organization" and "hence, not one of the unions which
vied for certification as sole and exclusive bargaining representative," is
specious. Neither law, administrative rule nor jurisprudence requires that only
employees affiliated with any labor organization may take part in a certification
election. On the contrary, the plainly discernible intendment of the law is to
grant the right to vote to all bona fide employees in the bargaining unit, whether
they are members of a labor organization or not.
LABOR RELATIONS
Section 11. Procedure in the challenge of votes. - When a vote is properly
challenged, the Election Officer shall place the ballot in an envelope which
shall be sealed in the presence of the voter and the representatives of the
contending unions and employer. The Election Officer shall indicate on the
envelope the voter's name, the union or employer challenging the voter, and the
ground for the challenge. The sealed envelope shall then be signed by the
Election Officer and the representatives of the contending unions and employer.
The Election Officer shall note all challenges in the minutes of the election and
shall be responsible for consolidating all envelopes containing the challenged
votes. The envelopes shall be opened and the question of eligibility shall be
passed upon only if the number of segregated voters will materially alter the
results of the election.
Section 12. On-the-spot questions. - The Election Officer shall rule on any
question relating to and raised during the conduct of the election. In no case,
however, shall the election officer rule on any of the grounds for challenge
specified in the immediately preceding section.
Section 13. Protest; when perfected. - Any party-in-interest may file a protest
based on the conduct or mechanics of the election. Such protests shall be
recorded in the minutes of the election proceedings. Protests not so raised are
deemed waived.
The protesting party must formalize its protest with the Med-Arbiter, with
specific grounds, arguments and evidence, within five (5) days after the close of
the election proceedings. If not recorded in the minutes and formalized within
the prescribed period, the protest shall be deemed dropped.
Section 15. Conduct of election and canvass of votes. - The election precincts
shall open and close on the date and time agreed upon during the pre-election
conference. The opening and canvass shall proceed immediately after the
precincts have closed. Failure of any party or the employer or his/her/their
representative to appear during the election proceedings shall be considered a
waiver to be present and to question the conduct thereof.
number of valid votes cast shall be certified as the winner, subject to Section
20, Rule IX.
LABOR RELATIONS
provisions of the Act, constitutes the agent as the representative of all
the employees within the particular bargaining unit. The Act provides
that such bargaining agent shall be the exclusive representative of
the employees. The term exclusive was interpreted under the
original Act to mean that the employer must treat with the
representative to the exclusion of all other claiming bargaining agents.
5.1 Exclusive Bargaining Agent Represents Even the Minority Union
On the part of the union that won in the certification election, it becomes, and is
certified as, the exclusive bargaining agent of all the workers in the bargaining
unit. It represents even the members of the minority union.
However, although the union has every right to represent its members in the
negotiation regarding the terms and conditions of their employment, it cannot
negate their wishes on matters which are purely personal and individual to
them.
What can the minority do? The minority union, although a loser in the
election, does not lose its character as a lawful labor organization
entitled to protection under Article 246 which makes it unlawful for
any person to abridge the right to self-organization. (see also Article
255)
Like a CE, its purpose is the same, namely, to find out which union
should serve as the bargaining agent. The difference is that a
certification is ordered by the Department while a consent election is
voluntarily agreed upon by the parties, with or without the
intervention of the Department.
May a minority union charge the employer with ULP? Yes. It can file
an individual or group complaint for ULP. It can even engage in
peaceful concerted activity. But it cannot resort to work stoppage or
strike because strike is reserved, under Article 263, to an exclusive
bargaining representative (i.e., the majority union), if there is one.
5.
THE
WINNER
REPRESENTATIVE
AS
SOLE
AND
EXCLUSIVE
LABOR RELATIONS
Unilaterally formulated rules and policy can neither contradict nor
undermine the CBA provisions.
Since the collective bargaining agreement is considered the law between the
parties, containing as it does the agreed terms of employment of the employee
with his employer, unilaterally imposed orders or rules qualifying the terms
contained in the agreement are subordinate to the CBA. At most, such rules,
such as the rules on trips abroad formulated by petitioner [school] a few months
before Legaspis application, are merely suppletory and can neither contradict
nor undermine the terms found in the CBA.
LABOR RELATIONS
relations, against the individual union members in matters that affect them
peculiarly, and against the union in matters that affect the entire membership or
large classes of its members," and "a union member who is employed under an
agreement between the union and his employer is bound by the provisions
thereof, since it is a joint and several contract of the members of the union
entered into by the union as their agent."
AGAINST
TRANSFEREE
5.2 Exceptions
Although the purchaser of the assets or enterprise is not legally bound to absorb
in its employ the employers of the seller of such assets or enterprise, the parties
are liable to the employees if the transaction between the parties is colored or
clothed with bad faith.
OF
The agreement is binding on the parties for the period therein specified. The
employees cannot revoke the validly executed collective bargaining contract
with their employer by the simple expedient of changing their bargaining
representative. Thus, when there occurs a shift in employees' union allegiance
after the execution of a bargaining contract with their employer, and the
employees change their bargaining representative, the contract continues to
bind them up to its expiration date. The new agent, however, may bargain for
the shortening of the contract period.
In formulating the "substitutionary" doctrine, the only consideration involved
was the employees' interest in the existing bargaining agreement. The agent's
interest never entered the picture. In fact, the justification 9 for said doctrine
was:
xxx that the majority of the employees, as an entity under the statute, is the true
party in interest to the contract, holding rights through the agency of the union
representative. Thus, any exclusive interest claimed by the agent is defeasible at
the will of the principal.... (Emphasis supplied)
Stated otherwise, the "substitutionary" doctrine only provides that the
employees cannot revoke the validly executed collective bargaining contract
with their employer by the simple expedient of changing their bargaining agent.
And it is in the light of this that the phrase "said new agent would have to
respect said contract" must be understood. It only means that the employees,
thru their new bargaining agent, cannot renege on their collective bargaining
contract, except of course to negotiate with management for the shortening
thereof.
The "substitutionary" doctrine, therefore, cannot be invoked to support the
contention that a newly certified collective bargaining agent automatically
assumes all the personal undertakings like the no-strike stipulation here
in the collective bargaining agreement made by the deposed union. When
BBWU bound itself and its officers not to strike, it could not have validly
bound also all the other rival unions existing in the bargaining units in question.
BBWU was the agent of the employees, not of the other unions which possess
distinct personalities. To consider UNION contractually bound to the no-strike
stipulation would therefore violate the legal maxim that res inter alios nec
prodest nec nocet.
7. GRIEVANCES
A grievance is defined as any question by either the employer or the
union regarding the interpretation or application of the collective
bargaining agreement or company personnel policies or any claim by
either party that the other party is violating any provision of the CBA
or company personnel policies.
LABOR RELATIONS
collective agreement. The usual source of grievances, however, is the
rules and regulations governing disciplinary actions.
7.1 By-passing the Grievance Machinery: ULP
All grievances arising from the implementation or interpretation of the
collective bargaining agreement and/or interpretation and enforcement
of company personnel policies are compulsorily subject to the
grievance of machinery.
Upholding the requirement, the Court has ruled that the grievance
procedure provided in the CBA should be adhered to by the parties.
Refusal or failure to do so is an unfair labor practice, because the
grievance procedure is part of the continuous process of collective
bargaining. It is intended to promote friendly dialogue between labor
and management as a means of maintaining industrial peace.
Before an aggrieved employee may resort to the courts to enforce his
individual rights under a bargaining contract, the employee must
exhaust all the remedies available to him under such contract. And a
court should not entertain any complaint by an aggrieved employee
until proper use has been made of the contract grievance procedure
agreed upon by employer and the bargaining representative.
The grievance machinery under the agreement is the very heart of
industrial self0government.
May a grievance be brought to voluntary arbitration without passing
through the grievance procedure under the CBA?
This appears to be proscribed by the Labor Code which directs the
parties to a CBA to establish a grievance machinery for the adjustment
and resolution of grievances arising from the interpretation or
enforcement of company personnel policies.
In view, however, of the State policy to encourage voluntary
arbitration of all other labor-management disputes, it is submitted that
a grievance may be brought directly to voluntary arbitration without
passing through the grievance machinery, especially when the latter
has been proven to be ineffective in the past, or when the parties
inadvertently failed to include a grievance machinery provision in
their CBA.
Article 262 of the Labor Code provides that upon agreement of the parties, the
voluntary arbitrator can hear and decide all other labor disputes.
The employees waiver of her option to submit her case to grievance machinery
did not amount to relinquishing her right to avail herself of voluntary
arbitration.
LABOR RELATIONS
two (2) representatives each from the members of the bargaining unit and the
employer, unless otherwise agreed upon by the parties. The representatives
from among the members of the bargaining unit shall be designated by the
union.
choice and by consent submit their controversy to him for determination. 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.
8. VOLUNTARY ARBITRATION
Section 3. Submission to voluntary arbitration. - Where grievance remains
unresolved, either party may serve notice upon the other of its decision to
submit the issue to voluntary arbitration. The notice shall state the issue or
issues to be arbitrated, copy thereof furnished the board or the voluntary
arbitrator or panel of voluntary arbitrators named or designated in the collective
bargaining agreement. If the party upon whom the notice is served fails or
refuses to respond favorably within seven (7) days from receipt thereof, the
voluntary arbitrator or panel of voluntary arbitrators designated in the collective
bargaining agreement shall commence voluntary arbitration proceedings.
Where the collective bargaining agreement does not so designate, the board
shall call the parties and appoint a voluntary arbitrator or panel of voluntary
arbitrators, who shall thereafter commence arbitration proceedings in
accordance with the proceeding paragraph.
In instances where parties fail to select a voluntary arbitrator or panel of
voluntary arbitrators, the regional branch of the Board shall designate the
voluntary arbitrator or panel of voluntary arbitrators, as may be necessary,
which shall have the same force and effect as if the parties have selected the
arbitrator.
BE
ACCREDITED
AS
VOLUNTARY
Arbitration
Informal
Not obliged
Not observed
No comparable appeal
recourse
Hear
only
industrial
disputes
Not essential
LABOR RELATIONS
the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall
immediately dispose and refer the same to the Grievance Machinery
or Voluntary Arbitration provided in the Collective Bargaining
Agreement.
________
Article. 262. Jurisdiction over other labor disputes. - The Voluntary
Arbitrator or panel of Voluntary Arbitrators, upon agreement of the
parties, shall also hear and decide all other labor disputes including
unfair labor practices and bargaining deadlocks.
________
1. ARBITRABLE DISPUTES
In the field of labor relations, arbitration applies to two kinds of
disputes: (1) contract-negotiation disputes; and (2) contractinterpretation disputes. Contract negotiation disputes are disputes as to
the terms of a collective bargaining agreement. Where there is an
existing agreement to arbitrate such disputes, and a bargaining
deadlock or impasse has arisen, the disputants submit to an impartial
outsider for settlement the collective bargaining issue which they had
been unable to settle by themselves, whether or not aided by
conciliators. Contract interpretation disputes are disputes arising
under an existing collective bargaining agreement, involving such
matters as the interpretation and application of the contract, or alleged
violation of its provisions.
Arbitration of contract negotiation disputes is often known as
arbitration of interest, while arbitration of contract interpretation
disputes is known as arbitration of grievance or rights.
2. JURISDICTION OF L.A. AND V.A.
The aforecited provisions of law cannot be read in isolation or separately. They
must be read as a whole and each Article of the Code reconciled one with the
other. An analysis of the provisions of Articles 217, 261, and 262 indicates,
that:
1. The jurisdiction of the Labor Arbiter and Voluntary Arbitrator or Panel of
Voluntary Arbitrators over the cases enumerated in Articles 217, 261 and 262,
can possibly include money claims in one form or another.
2. The cases where the Labor Arbiters have original and exclusive jurisdiction
are enumerated in Article 217, and that of the Voluntary Arbitrator or Panel of
Voluntary Arbitrators in Article 261.
3. The original and exclusive jurisdiction of Labor Arbiters is qualified by an
exception as indicated in the introductory sentence of Article 217 (a), to wit:
Art. 217. Jurisdiction of Labor Arbiters . . . (a) Except as otherwise provided
under this Code the Labor Arbiter shall have original and exclusive jurisdiction
to hear and decide . . . the following cases involving all workers. . . .
The phrase "Except as otherwise provided under this Code" refers to the
following exceptions:
A. Art. 217. Jurisdiction of Labor Arbiters . . .
xxx
(c) Cases arising from the interpretation or implementation of collective
bargaining agreement and those arising from the interpretation or enforcement
of company procedure/policies shall be disposed of by the Labor Arbiter by
referring the same to the grievance machinery and voluntary arbitrator as may
be provided in said agreement.
LABOR RELATIONS
B. Art. 262. Jurisdiction over other labor disputes. The Voluntary Arbitrator
or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear
and decide all other labor disputes including unfair labor practices and
bargaining deadlocks.
4. The jurisdiction of Voluntary Arbitrator or Panel of Voluntary Arbitrators is
provided for in Arts. 261 and 262 of the Labor Code as indicated above.
A. A close reading of Article 261 indicates that the original and exclusive
jurisdiction of Voluntary Arbitrator or Panel of Voluntary Arbitrators is limited
only to:
. . . unresolved grievances arising from the interpretation or implementation of
the Collective Bargaining Agreement and those arising from the interpretation
or enforcement of company personnel policies . . . Accordingly, violations of a
collective bargaining agreement, except those which are gross in character,
shall no longer be treated as unfair labor practice and shall be resolved as
grievances under the Collective Bargaining Agreement. . . . .
B. Voluntary Arbitrators or Panel of Voluntary Arbitrators, however, can
exercise jurisdiction over any and all disputes between an employer and a union
and/or individual worker as provided for in Article 262.
It must be emphasized that the jurisdiction of the Voluntary Arbitrator or Panel
of Voluntary Arbitrators under Article 262 must be voluntarily conferred upon
by both labor and management. The labor disputes referred to in the same
Article 262 can include all those disputes mentioned in Article 217 over which
the Labor Arbiter has original and exclusive jurisdiction.
As shown in the above contextual and wholistic analysis of Articles 217, 261,
and 262 of the Labor Code, the National Labor Relations Commission correctly
ruled that the Labor Arbiter had no jurisdiction to hear and decide petitioner's
money-claim-underpayment of retirement benefits, as the controversy between
the parties involved an issue "arising from the interpretation or
implementation" of a provision of the collective bargaining agreement. The
Voluntary Arbitrator or Panel of Voluntary Arbitrators has original and
exclusive jurisdiction over the controversy under Article 261 of the Labor
Code, and not the Labor Arbiter.
policies. Note the phrase "unresolved grievances." In the case at bar, the
termination of petitioner is not an unresolved grievance.
Article 260 further provides that the parties to a CBA shall name or designate
their respective representative to the grievance machinery and if the grievance
is unsettled in that level, it shall automatically be referred to the voluntary
arbitrators designated in advance by the parties to a CBA of the union and the
company. It can thus be deduced that only disputes involving the union and the
company shall be referred to the grievance machinery or voluntary arbitrators.
LABOR RELATIONS
and original jurisdiction to hear and decide all grievances arising from the
implementation or interpretation of the collective bargaining agreements and
those arising from the interpretation or enforcement of company personnel
policies which remain unresolved after exhaustion of the grievance procedure.
They shall also have exclusive and original jurisdiction, to hear and decide
wage distortion issues arising from the application of any wage orders in
organized establishments, as well as unresolved grievances arising from the
interpretation and implementation of the productivity incentive programs under
RA 6971.
Upon agreement of the parties, any other labor dispute may be submitted to a
voluntary arbitrator or panel of voluntary arbitrators. Before or at any stage of
the compulsory arbitration process, the parties may opt to submit their dispute
to voluntary arbitration.
The National Labor Relations Commission, its regional branches and Regional
Directors of the Department of Labor and Employment shall not entertain
disputes, grievances or matters under the exclusive and original jurisdiction of
the voluntary arbitrator or panel of voluntary arbitrators and shall immediately
dispose and refer the same to the appropriate grievance machinery or voluntary
arbitration provided in the collective bargaining agreement.
1. General authority to investigate and hear the case upon notice of the
parties and to render an award based on the contract and record of the
case;
2. Incidental authority to perform all acts necessary to an adequate
discharge of his duties and responsibilities like setting and conduct of
hearing, attendance of witnesses and proof documents and other
evidences, fact-finding and other modes of discovery, reopening of
hearing, etc.;
3. Special power in aid of his general contractual authority like the
authority to determine arbitrability of any particular dispute and to
modify any provision of existing agreement upon which a proposed
change is submitted for arbitration.
LABOR RELATIONS
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 Voluntary
Arbitrator or panel of Voluntary Arbitrators. Hearing may be
adjourned for cause or upon agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for the
Voluntary Arbitrator or panel of Voluntary Arbitrators to render an
award or decision within twenty (20) calendar days from the date of
submission of the dispute to voluntary arbitration.
The award or decision of the Voluntary Arbitrator or panel of
Voluntary Arbitrators shall contain the facts and the law on which it is
based. It shall be final and executory after ten (10) calendar days from
receipt of the copy of the award or decision by the parties.
5. FUNCTIONS OF ARBITRATOR
The labor arbitrator under a collective bargaining agreement is an
indispensable agency in the continuous collective bargaining process.
He sits to settle disputes at the plant leveldisputes which require for
their solution knowledge of the custom and practices of a particular
factory or of a particular industry as reflected in particular
agreements.
On the other hand, the power and authority of arbitrators in labor
dispute cases is derived from and limited by the terms of the parties
agreement. The arbitrator is confined to interpretation and application
of the CBA; he does not sit to dispense his own brand of industrial
justice. The arbitrators authority is contractual rather than judicial in
nature; his power is conferred by the CBA; and his duty with respect
to that agreement is to settle disputes arising thereunder by applying
and interpreting that agreement.
But so long as an arbitrator is not arbitrary, he has wide latitude in
exercising his authority, especially in fashioning an appropriate
remedy.
5.1 Arbitrators Interpretation of CBA
It is said that an arbitral award does not draw its essence from the CBA; hence,
there is an unauthorized amendment or alteration thereof, if:
1. It is so unfounded in reason and fact;
2. It is so unconnected with the working and purpose of the agreement;
3. It is without factual support in view of its language, its context, and any other
indicia of the parties' intention;
4. It ignores or abandons the plain language of the contract;
5. It is mistakenly based on a crucial assumption which concededly is a
nonfact;
6. It is unlawful, arbitrary or capricious; and
7. It is contrary to public policy.
________
Article. 262-A. Procedures. - The Voluntary Arbitrator or panel of
Voluntary Arbitrators shall have the power to hold hearings, receive
evidences and take whatever action is necessary to resolve the issue or
issues subject of the dispute, including efforts to effect a voluntary
settlement between parties.
LABOR RELATIONS
The decisions of voluntary arbitrators must be given the highest respect and as
a general rule must be accorded a certain measure of finality. This is especially
true where the arbitrator chosen by the parties enjoys the first rate credentials. It
is not correct, however, that this respect precludes the exercise of judicial
review over their decisions.
Inspite of statutory provisions making 'final' the decisions of certain
administrative agencies, we have taken cognizance of petitions questioning
these decisions where want of jurisdiction, grave abuse of discretion, violation
of due process, denial of substantial justice, or erroneous interpretation of the
law were brought to our attention.
The Labor Code and its Implementing Rules thus clearly reflect the
important public policy of encouraging recourse to voluntary
arbitration and of shortening the arbitration process by rendering the
arbitral award non- appealable to the NLRC. The result is that a
voluntary arbitral award may be modified and set aside only upon the
same grounds on which a decision of the NLRC itself may be
modified or set aside, by the Supreme Court.