Primer on Grievance Machinery and Voluntary Arbitration

INTRODUCTION

The Primer ans ers the numerous !uestions bein" as#ed about voluntary arbitration by $arties to labor%mana"ement dis$utes and their arbitrators&

'or better a$$reciation o( the sub)ect* the Primer traces (irst the develo$ment o( voluntary arbitration ithin the $olicy and le"al (rame or# o( the Phili$$ine labor relations system and e+$lains the meanin" o( Grievances and im$ortance o( Grievance Procedure as $relude to arbitration&

The various to$ics on the main sub)ect o( voluntary arbitration startin" (rom the selection o( voluntary arbitrators* sco$e o( voluntary arbitration* arbitrability issues* arbitration $rocedures and techni!ues* evidence* and voluntary a ards and decisions* combine both the la and $rocedures and their a$$lication in various cases decided by ell%#no n Arbitrators in the United ,tates& In instances here local cases are available* the decisions o( the Phili$$ine ,u$reme Court are also included& The a$$roach $rovided a more realistic and $ractical $icture o( ho voluntary arbitration or#s&

The to$ic on Arbitration Cost and ,$ecial Voluntary Arbitration 'und is included to $rovide ans ers to basic !uestions relative to e+$enses involved in arbitration $roceedin"s and entitlement to "overnment subsidy&

-ith the continued su$$ort (rom "overnment* labor and mana"ement advocates* voluntary arbitrators and non%"overnmental or"ani.ations* the Primer ends ith a very o$timistic note on the (uture o( "rievance settlement and voluntary arbitration in the country&

PO/IC0 AND /1GA/ 'RAM1-OR2

3&

-hat is the $resent national $olicy on labor dis$ute settlement 4

The $resent national $olicy on labor dis$ute settlement is enunciated in the (ollo in" instruments5

A&

3678 Constitution

,ec& 9* Article :III $rovides5

;The ,tate shall $romote the $rinci$le o( shared res$onsibility bet een or#ers and em$loyers and the $re(erential use o( voluntary modes in settlin" dis$utes* includin" conciliation* and shall en(orce their mutual com$liance there ith to (oster industrial $eace&<

=&

/abor Code* as amended by Re$ublic Act >83?

Article @33 o( the Code $rovides* amon" others5

AaB ;CIt is the $olicy o( the ,tateCto $romote and em$hasi.e the $rimacy o( (ree collective bar"ainin" and ne"otiations* includin" voluntary arbitration* mediation and conciliation* as modes o( settlin" labor or industrial dis$utes&<

AbB ;To $rovide an ade!uate administrative machinery (or the e+$editious settlement o( labor or industrial dis$utes&<

@& dis$utes4

-hat ere the early $olicies ado$ted by the "overnment on settlin" labor

Phili$$ine labor $olicy may be said to have evolved over (our $eriods5

A&

Common ealth Period A369>%36?9B

Common ealth Act No& 3D9 established our (irst labor dis$ute settlement system by creatin" the Court o( Industrial Relations and vestin" it ith com$ulsory arbitration $o ers over labor dis$utes involvin" both or#ers in the $rivate sector and in "overnment o ned or controlled cor$orations& The enactment o( CA 3D9 as $ursuant to a $rovision in the 369? Constitution* ,ection >* Article :IV* hich cate"orically $rovided the basis (or com$ulsory arbitration&

On the enactment o( CA 3D9* the hi"hly res$ected Dr& Cicero Calderon had this to say5 ;The ado$tion o( com$ulsory arbitration as not the $roduct o( mere im$ulse or sudden ins$iration& It as a deliberate res$onse o( the $olicy%ma#ers to the social scene characteri.ed by acute a"rarian and industrial unrest o( disturbin" $ro$ortions& ,tron" measures ere necessary to chec# the sur"in" tide o( stri#es and u$risin"s by the tenants and laborers* $articularly in rice haciendas and su"ar $lantations in the country& Other (actors contributin" to the ado$tion o( com$ulsory arbitration ere the $oor state or or"ani.ation o( the or#ers and (arm or#ers and the resultant lac# o( e((ective collective bar"ainin"E the customary reliance o( the 'ili$ino u$on courts o( )ustice in the ad)udication o( controversies o( hatever natureE the desire to e+$eriment ith com$ulsory arbitration* hich had been re)ected at least three times under American ruleE the a$$arent inade!uacy or ine((ectiveness o( the Government $olicy o( non%intervention in the area o( labor%mana"ement relations* and the stron" in(luence o( the then President Manuel /& Fue.on* ho advocated its ado$tion be(ore the National Assembly&<

=&

Industrial Peace Act Period A36?9%368@B

In 36?9* Re$ublic Act No& 78? as enacted (undamentally chan"in" the (rame or# o( labor relations $olicies (rom that o( com$ulsory arbitration to collective bar"ainin"& The Act severely restricted the com$ulsory arbitration $o ers o( the CIR& The latter as divested o( the $o er to set a"es* rates o( $ay* hours o( em$loyment* other terms or conditions o( em$loyment* or other ise re"ulate the relation bet een em$loyers and em$loyees* as a com$ulsory arbitration body* e+ce$t in labor dis$utes involvin" industries indis$ensable to the national interest&

C&

Martial /a

Period A368@%367>B

It as durin" the $eriod o( martial la that voluntary arbitration became an inte"ral $art o( the Phili$$ine labor relations $olicy& This $eriod also mar#ed by the bannin" o( stri#es in the so% called ; vital industries<& To cushion the im$act o( the stri#e ban* Presidential Decree No& @3 as issued creatin" the National /abor Relations Commission* hich e+ercised ori"inal )urisdiction over $ractically all labor dis$utes& Aside (rom creatin" the N/RC* Presidential Decree No& @3 had (our other very im$ortant $rovisions5

3& It im$osed the clearance re!uirement (or dismissals and terminations o( em$loyees ith at least one year o( serviceE

@& dis$utesE

It made "rievance $rocedure a mandatory initial sta"e in the settlement o( labor

9& It $rovided that ;be(ore assumin" )urisdiction over any issue* dis$ute or "rievance* the Commission shall "ive the $arties a chance to submit their $roblem (or voluntary arbitrationE<

G& To ensure the availability o( voluntary arbitrators* the Decree $rovided that ; all collective bar"ainin" a"reements shall contain a $rovision desi"natin" a voluntary arbitratorC to decide all dis$utes and "rievances arisin" out o( the im$lementation o( the collective bar"ainin" a"reements&<

D&

Post%Martial /a Period A 367>%$resentB

-hat a$$ears to be the hallmar# o( this $eriod in so (ar as labor relations $olicy is concerned is the "overnment em$hasis on the $romotion o( voluntary modes o( dis$ute settlement& =y virtue o( 1+ecutive Order No& 3@> hich reor"ani.ed the De$artment o( /abor and 1m$loyment* the National Conciliation and Mediation =oard ANCM=B as created to oversee the im$lementation o( the Constitutional $olicy o( $romotin" the $re(erential use o( the voluntary modes o( dis$ute settlement* includin" conciliation& 1+ecutive Order @?3 hich amended 1+ecutive Order No& 3@> li#e ise created the Tri$artite Voluntary Arbitration Advisory Council ATVAACB to advise the NCM= on the $romotion o( the voluntary arbitration $ro"ram&

Re$ublic Act >83? introduced amendments to the /abor Code ith (ar%reachin" e((ects on the labor dis$ute settlement system& One o( these is the in)unction a"ainst the N/RC and the

DO/1 Re"ional Directors (rom entertainin" dis$utes that are under the ori"inal and e+clusive )urisdiction o( voluntary arbitrators& Re$ublic Act >83? also introduced amendments to the /abor Code hich stren"thened trade unionism and collective bar"ainin" as essential elements o( an e((ective labor dis$ute settlement system&

9& Has the ne labor relations la stren"thened the le"al basis o( the use o( "rievance machinery and voluntary arbitration in settlin" labor dis$utes 4

De(initely& Re$ublic Act >83? no $rovides (or the mandatory use o( the "rievance machineryas a $rere!uisite ste$ to voluntary arbitration o( dis$utes arisin" (rom C=A inter$retation and im$lementation* as ell as those dis$utes arisin" (rom the inter$retation and en(orcement o( com$any $ersonnel $olicies& Article @>@ o( the /abor Code* be(ore it as amended by Re$ublic Act >83?* merely $rovided that< C A heneverB a "rievance arises (rom the inter$retation or im$lementation o( a collective a"reement* includin" disci$linary actions im$osed on members o( the bar"ainin" unit* the em$loyer and the bar"ainin" re$resentative shall meet to ad)ust the "rievance<&

,econdly* it is no the $olicy o( the ,tate to encoura"e voluntary arbitration o( all labor% mana"ement dis$utesother than those arisin" (rom the inter$retation and im$lementation o( collective bar"ainin" a"reement and com$any $ersonnel $olicies& This $olicy is o$erationali.ed by the (ollo in" $rovisions5

A& Article @>D o( the /abor Code* as amended by Re$ublic Act >83?* hich $rovides that5 ; All "rievances submitted to the "rievance machinery hich are not settled ithin seven A8B calendar days (rom the date o( its submission shall automatically be re(erred to voluntary arbitration$rescribed in the C=A& The seven calendar days shall be rec#oned (rom the date the "rievance machinery is submitted to the last ste$ in the "rievance machinery immediately $rior to voluntary arbitration&

=& Article @>3* hich $rovides (or the ori"inal and e+clusive )urisdiction o( voluntary arbitrators over unresolved "rievances arisin" (rom the inter$retation or im$lementation o( the C=A arisin" (rom the inter$retation or en(orcement o( com$any $ersonnel $olicies& -ith this amendment* the ori"inal and e+clusive )urisdiction o( voluntary arbitrators has been tremendously e+$anded&

C& Article @>3 $rovides that C=A violations are to be treated as"rievancesinstead o( un(air labor $ractice acts e+ce$t hen the violation is "ross* meanin" it involves (la"rant and Ior malicious re(usal to com$ly ith the economic $rovisions o( the C=A&

D& The same article en)oinsthe N/RC* its Re"ional Arbitration =ranches* and the Re"ional Directors o( the De$artment o( /abor and 1m$loyment (rom entertainin" dis$utes* "rievances or matters under the e+clusive and ori"inal )urisdiction o( the voluntary arbitrator& I( any o( such cases is (iled be(ore them* they have to immediately dis$ose and re(er the same to the "rievance machinery or voluntary arbitrator $rovided in the C=A&

1& Moreover* under Article @>@* u$on a"reement o( the $arties* voluntary arbitrators may also hear and decide all other labor dis$utes includin" un(air labor $ractices and bar"ainin" deadloc#s&

'& /astly* in case issues arisin" (rom the C=A inter$retation and im$lementation or those arisin" (rom the inter$retation or en(orcement o( com$any $ersonnel $olicies are made as "rounds (or notices o( stri#es or loc#outs or re!uests (or $reventive mediation* the NCM= shall advise the $arties to submit the issueIs to voluntary arbitration A Rule :I* ,ection @* Im$lementin" Rules* /abor CodeB&

GRI1VANC1,

G&

-hat is "rievance4

A "rievance is de(ined as ;any !uestion by either the em$loyer or the union re"ardin" the inter$retation or a$$lication o( the collective bar"ainin" a"reement or com$any $ersonnel $olicies or any claim by either $arty that the other $arty is in violation o( any $rovision o( the C=A or com$any $ersonnel $olicies<&

?&

-hat is the "rievance re(erred to in Title VII%A o( the /abor Code4

The "rievance re(erred to in the technical or restricted sense* is a dis$ute or controversy bet een the em$loyer and the collective bar"ainin" a"ent arisin" (rom the inter$retation or im$lementation o( their C=A andIor those arisin" (rom the inter$retation or en(orcement o( com$any $ersonnel $olicies* (or the ad)ustment and resolution o( hich the $arties have a"reed to establish a machinery or a series o( ste$s commencin" (rom the lo est level o( decision% ma#in" in the mana"ement hierarchy Ausually bet een the sho$ ste ard o( the em$loyee or em$loyees a""rieved and the su$ervisorI (oremanI mana"er hich e+ercises control and su$ervision over the "rievants or ho is res$onsible (or e+ecutin" the mana"ement action that

have "iven rise to the "rievanceB and usually terminatin" at the hi"hest o((icial o( the Com$any& I( such dis$ute remains unresolved a(ter e+haustin" the "rievance machinery or $rocedure* it shall automatically be re(erred to voluntary arbitration $rescribed in the C=A&

>&

-hen is there a "rievance 4

In the technical or restricted sense* there is a "rievance hen a dis$ute or controversy arises over the im$lementation or inter$retation o( a collective bar"ainin" a"reement or (rom the im$lementation or en(orcement o( com$any $ersonnel $olicies* and either the union or the em$loyer invo#es the "rievance machinery $rovision (or the ad)ustment or resolution o( such dis$ute or controversy&

8&

Could there be a "rievance ithout a union or a C=A 4

I( the term "rievance is to be a$$lied in the loose or "eneric sense* any dis$ute or controversy res$ectin" terms and conditions o( em$loyment hich an em$loyee or "rou$ o( em$loyees may $resent to the em$loyer can be a "rievance* even ithout a union or C=A& Under this inter$retation* any com$laint* !uestion or $roblem that an em$loyee or "rou$ o( em$loyees may ish to ta#e u$ or discuss ith the em$loyer res$ectin" terms and conditions o( em$loyment (or the $ur$ose o( resolvin" or satis(yin" the same* constitutes a "rievance& The e+$ansion o( the ori"inal and e+clusive )urisdiction o( voluntary arbitrators to include !uestions arisin" (rom the inter$retation and en(orcement o( com$any $ersonnel $olicies has the e((ect o( idenin" the meanin" and inter$retation o( a "rievance to include a situation here there is no collective bar"ainin" a"ent and no C=A&

7& Are all "rievances arisin" (rom the im$lementation or inter$retation o( the collective bar"ainin" a"reement andIor inter$retation and en(orcement o( com$any $ersonnel $olicies com$ulsory sub)ect to the "rievance machinery 4

0es& This is clear (rom Article @>D and Art& @>3 o( the /abor Code* as amended by Re$ublic Act >83?&

Art& @>D is em$hatic on the duty o( the $arties to a collective bar"ainin" a"reement to establish a machinery (or the ad)ustment and resolution o( "rievances arisin" (rom the inter$retation and

en(orcement o( the C=A andIor com$any $ersonnel $olicies* and (or the mandatory use o( the said machinery&

Art& @>3* on the other hand* directs the N/RC* its Re"ional Arbitration =ranches and the Re"ional Directors o( the De$artment o( /abor and 1m$loyment not to entertain dis$utes* "rievances or matters under the e+clusive and ori"inal )urisdiction o( the voluntary arbitrator or $anel o( voluntary arbitrators and to immediately dis$ose o( and re(er the same to the "rievance machineryor voluntary arbitration $rovided in the collective bar"ainin" a"reement& Moreover* in Rule :I o( the Im$lementin" Rules o( the Code* the Re"ional =ranches o( the National Conciliation and Mediation =oard are en)oined* in case issues arisin" (rom the inter$retation or im$lementation o( the collective bar"ainin" a"reements or those arisin" (rom the inter$retation or en(orcement o( com$any $ersonnel $olicies are raised in notices o( stri#es or loc#outs or re!uests (or $reventive mediation* to advise the $arties to submit the issueIs to voluntary arbitration&

6& -hat usual $rovisions o( a collective bar"ainin" a"reement hose violationIs arisin" (rom inter$retation and im$lementation* may constitute "rievanceIs or the so%called ri"hts dis$utes 4

1very collective a"reement usually contains non%economic and economic $rovisions& Non% economic $rovisions are those hose monetary cost can not be directly com$uted such as no% stri#e%no%loc#out* union security* mana"ement security* chec#%o(( clauses* "rievance $rocedures* etc& 1conomic $rovisions* on the other hand* are those hich have direct and measurable monetary cost conse!uences such as a"e rates* $aid vacations* $ensions* health and el(are $lans* $enalty $remiums and other (rin"e bene(its& Any violation arisin" (rom ri"hts established under collective a"reements* la s* rules and re"ulations and customary $ractices may constitute as "rievance and is o(ten re(erred to as ri"hts dis$ute&

3D& -hat are the $ersonnel $olicies and hat are the matters usually covered by such $olicies* hose ron" (rom en(orcement and inter$retation may constitute "rievanceIs or other sources o( ri"hts dis$utes4

Personnel $olicies are "uidin" $rinci$les stated in broad* lon"%ran"e terms that e+$ress the $hiloso$hy or belie(s o( an or"ani.ationJs to$ authority re"ardin" $ersonnel matter& They deal ith matters a((ectin" e((iciency and ell bein" o( em$loyees and include* amon" others* the $rocedures in the administration o( a"es* bene(its* $romotions* trans(ers and other $ersonnel movements hich are usually not s$elled out in the collective a"reement& The usual source o( "rievances* ho ever* is the rules and re"ulations "overnin" disci$linary actions&

33& -hat violations o( the usual norms o( $ersonnel conduct or behavior o( em$loyees may constitute "rievances o(ten re(erred to as disci$line cases4

Rules and re"ulations "overnin" $ersonnel disci$line may contain the (ollo in" in(ractions coverin" the (ollo in" sub)ects5

3&

AGAIN,T P1R,ON

PH0,ICA/ INKUR0* A,,AU/T* HOMICID1* MURD1R @& AGAIN,T PROP1RT0

MI,%U,1 O' PROP1RT0 DAMAG1 TO PROP1RT0 TH1'T AND RO==1R0 N1G/IG1NC1 IN TH1 U,1 O' PROP1RT0 9& ORD1R/IN1,,IGOOD CONDUCT

'IGHTINGIFUARR1/ING VIO/ATION O' RU/1, DI,COURT1,0IDI,R1,P1CT INTO:ICATION -HI/1 AT -OR2 PO,,1,,ION O' DRUG,INARCOTIC,IA/COHO/IC DRIN2, I//1GA/ ,TRI21 ,TRI21 VIO/ATION,I,A=OTAG1 'AI/UR1 TO COOP1RAT1 IN INV1,TIGATION, H0GI1N1 ,A'1T0 UNION ACTIVIT0 MOON/IGHTING D1PORTM1NT

'INANCIA/ INT1R1,T UNAUTHORIL1D OUT,ID1 -OR2 P1R,ONA/ A''AIR, 1NT1RTAINM1NT O' VI,ITOR, DI,ORD1R/IN1,,* HOR,1P/A0 U,1 O' 'OU/ /ANGUAG1

G&

ATT1NDANC1 AND PUNCTUA/IT0

TIM1211PING VIO/ATION, A=,1NT11I,M TARDIN1,, UND1RTIM1 A-O/

?&

MORA/IT0

IMMORA/IT0 ,1:UA/ HARA,,M1NT

>&

CON'/ICT O' INT1R1,T

CON'/ICT O' INT1R1,T

8&

NON%P1R'ORMANC1

IN,U=ORDINATION N1G/IG1NC1 O' DUT0 IN1''ICI1NC0

MA/ING1RING CAR1/1,,N1,, POOR FUA/IT0

7&

HON1,T0IINT1GRIT0

'A/,IT0I'A/,I'ICATION 'RAUD DI,HON1,T0 =R1ACH O' TRU,T UN'AITH'U/N1,, /O,, O' CON'ID1NC1 U,URIOU, TRAN,ACTION DI,C/O,UR1 O' IN'ORMATION DI,/O0A/T0 NON%PA0M1NT O' D1=T

TH1 GRI1VANC1 PROC1DUR1

3@&

-hat is the Grievance Procedure 4

The "rievance $rocedureis the series o( (ormal ste$s that $arties to a collective bar"ainin" a"reement a"reed to ta#e (or the ad)ustment o( "rievances or !uestions arisin" out o( the inter$retation or im$lementation o( the C=A or com$any $ersonnel $olicies includin" voluntary arbitration as the terminal ste$& The "rievance $rocedure $rovides the $arties a (irst crac# in addressin" $roblems in the C=A administration and its use is an essential re!uisite be(ore a voluntary arbitrator can ta#e co"ni.ance o( the unresolved "rievance& It usually consists o( a multi%ste$ $rocedure startin" (rom or discussion o( the "rievance bet een the em$loyee andIor the Union ,te ard on the one%hand and the (oreman and su$ervisor on the other hand* and

endin" ith the hi"hest decision%ma#in" o((icials o( the com$any* re(lectin" the hierarchy o( command or res$onsibility&

/e"ally s$ea#in"* the "rievance $rocedure is an a$$eal $rocedure and is a ;must< $rovision in every collective a"reement& It is that $art o( the a"reement hich $rovides (or a $eace(ul ay o( settlin" di((erences and misunderstandin" bet een the $arties&

39& Are there minimum le"al re!uirements (or the establishment o( the "rievance$rocedure re(erred to in Title VII%A o( the /abor Code4

0es& The (ollo in" are the minimum le"al re!uirements5

3& The "rievance machinery established by the $arties should be su((icient to ensure mutual observance o( the C=AJs terms and conditions* (or the resolution and ad)ustment o( "rievances arisin" (rom the C=A inter$retation or im$lementationE and those arisin" (rom the inter$retation or en(orcement o( com$any $ersonnel $oliciesE

@& The $arties should include in the a"reement a $rocedure (or the selection o( voluntary arbitrator or $anel o( voluntary arbitrators or name and desi"nate in advance a voluntary arbitrator or $anel o( voluntary arbitrators&

In most collective a"reements* the $rovision o( Grievance Procedure contains5 3B de(inition o( "rievance* @B statement o( "uidin" $rinci$les in the resolution o( "rievances* and 9B $rocedural ste$s in the settlement and resolution o( "rievances&

3G& Can there be a collective bar"ainin" a"reement entered into by the $arties and later on duly re"istered ith the DO/1 hich does not $rovide (or a "rievance $rocedure 4

/e"ally* none& A "rievance $rocedure is a ;must< $rovision in any C=A and no collective a"reement can be re"istered in the absence o( such $rocedure& In the event that a C=A ithout such $rovision is submitted (or re"istration* the re"istrar shall advise the $arties to include a "rievance $rocedure the C=A is considered duly re"istered&

3?& -hat standards may used as "uides in (ormulatin" an e((ective "rievance $rocedure4

The (ollo in" standards are su""ested in the (ormulation o( e((ective "rievance $rocedure5

3& Collective bar"ainin" a"reements should contain $rovisions that "rievances and dis$utes involvin" the inter$retation or a$$lication o( the terms o( the a"reement are to be settled ithout resort to stri#es* loc#outs* or other interru$tions to normal o$erations by an e((ective "rievance $rocedure ith arbitration as its (inal ste$&

@& To be e((ective* the $rocedure established (or the settlement o( such "rievances and dis$utes should meet at least the (ollo in" standards5

a& The successive ste$s in the $rocedure* the method o( $resentin" "rievances or dis$utes* and the method o( ta#in" an a$$eal (rom one ste$ to another should be so clearly stated in the a"reement as to be readily understood by all em$loyees* union o((icials* and mana"ement re$resentatives &

b& The $rocedure should be ada$table to the handlin" o( various ty$es o( "rievance and dis$utes hich come under the terms o( the a"reement &

c& The $rocedure should be desi"ned to (acilitate the settlement o( "rievances and dis$utes as soon as $ossible a(ter they arise& To this end5

3& The a"reement should $rovide ade!uate stated time limits (or the $resentation o( "rievances and dis$utes* the renderin" o( decisions* and the ta#in" o( a$$eals&

@& Issues should be clearly (ormulated at the earliest $ossible moment& In all cases hich cannot be settled in the (irst in(ormal discussions* the $ositions o( both sides should be reduced to ritin"&

9& Mana"ement and union should encoura"e their re$resentatives to settle at the lo er ste$s "rievances hich do not involve broad !uestions o( $olicy or o( contract inter$retation and should dele"ate su((icient authority to them to accom$lish this end&

G& Provision should be made (or $riority handlin" o( "rievances involvin" dischar"e* sus$ension* or other disci$linary action&

d& The $rocedure should be o$en to the submission o( "rievances by all $arties to the a"reement&

9& Mana"ement and unions should in(orm and train their re$resentatives in the $ro$er (unctionin" o( the "rievance $rocedure and in their res$onsibilities under it& In such a $ro"ram* it should be em$hasi.ed5

a& That the basic ob)ective o( the "rievance $rocedure is the achievement o( sound and (air settlements and not the ; innin"< o( casesE

b& That the (ilin" o( "rievances should be considered by (oreman or su$ervisors as aids in discoverin" and removin" causes o( discontent in their de$artmentsE

c& That any tendency by either $arty to su$$ort the earlier decisions o( its re$resentatives hen such decisions are ron" should be discoura"edE

d& That the illin"ness o( mana"ement and union o((icials to "ive ade!uate time and attention to the handlin" and dis$osition o( "rievances and dis$ute is necessary to the e((ective (unctionin" o( the $rocedureE

e& That (or sound handlin" o( "rievances and dis$utes both mana"ement and union re$resentatives should be thorou"hly (amiliar ith the entire collective bar"ainin" a"reement&

3>&

-hat are the usual ste$s in the Grievance Procedure 4

A "rievance $rocedure usually consists o( a series o( ste$s to be ta#en ithin the s$eci(ied time limits& The nature o( the $rocedure ill de$end u$on the structure o( the com$any and on the needs and desires o( the $arties* but there is a tendency to (ollo a (airly de(inite $attern& ,mall com$anies can be e+$ected to have short* sim$le "rievance $rocedures* sometimes ith only one or t o ste$s& /ar"er com$anies usually have multi%ste$ $rocedures& Three%ste$ and (our% ste$ $rocedures $robably are most common&

Commissioner Kesus =& Diamonon o( the Tri$artite Voluntary Arbitration Advisory Council elaborated that the reason (or havin" a number o( ste$s is to $rovide a method o( a$$eal to hi"her authority (rom the decision o( a lo er su$ervisory o((icial& 1ach ste$ is as im$ortant as the other& The intermediate ste$s are not merely a transmission belt (or $assin" "rievances alon" to the to$ authorities& The re$resentatives therein as in any other ste$s must have ade!uate authority either to u$hold or reverse decisions made at the lo er level&

Accordin" to him* the "rievance $rocedure has t o A@B $eriods5 the $eriod o( $ersuasion* (rom the (irst ste$ to the last ste$ immediately $rior to arbitration* here labor and mana"ement* ith the use o( ar"uments and evidence* $ersuade one another to "ive in to oneJs $osition or a"ree to a com$romise* and the $eriod o( arbitration hich be"ins hen the act o( $ersuasion has been e+haustively used and no settlement has been reached& Once and (or all* the dis$ute must be resolved and the $arties ill have to $ersuade the arbitrator (or a (avorable decision or a ard&

38& -hat is the interrelationshi$ bet een the "rievance $rocedure and voluntary arbitration 4

Pro(essor 'ernande. !uotes =ernstein 5

;It is o( vital im$ortance that the interrelationshi$ o( the t o $rocedures%"rievance and arbitration%be borne in mind by those ho study and $ractice arbitration& A "rievance $rocedure in hich (e dis$utes are settled inevitably overloads arbitral machinery& Arbitration $rocedures and a ards that undermine the "rievance machinery by $ermittin" serious disre"ard o( its $rescribed $rocedures can invite more arbitration and (e er settlements by ne"otiation& Or arbitration that encoura"es overem$hasis on technical $rocedural re!uirements ill th art settlement on the merits so that $ressure builds (or resort to sel(%hel$& Obviously the balance to be struc# re!uires )ud"ment* $reeminently on the $art o( the re$resentatives o( unions and mana"ement* ho have initial and $rimary res$onsibility& Ho they dischar"e their (unctions may be a((ected by hat arbitrators do& Arbitration is a $o er(ul tool that can* on occasion* send reverberations throu"h the lar"er or"anism* the "rievance $rocedure and sho$ o((ice relationsJ<

37& -hat are the advanta"es and disadvanta"es o( (e er sta"es in the "rievance $rocedure4

The advanta"es o( (e er sta"es in the "rievance $rocedure are A3B "reater s$eed in $rocessin"* and A@B savin"s in $ersonnel time& Its disadvanta"es are A3Bvulnerability to "rievance overloadE A@B e+cessive involvement o( senior o((icials and A9B inade!uate consideration o( the merits by lo er level su$ervisors ho are in a much better $osition to ma#e an e((ective ad)ustment&

36&

-hat are the advanta"es and disadvanta"es o( a multi%sta"e $rocedure4

The multi%sta"e $rocedure has the (ollo in" advanta"es5 A3B it enables the mana"ement% su$ervisory $ersonnel at all levels to contribute their #no %ho to the ad)ustment o( "rievancesE A@B a more ade!uate consideration o( the "rievance is li#elyE A9B involvement o( senior o((icials in "rievance $rocessin"* is "reatly reduced* thereby (reein" them (or other mana"erial tas#s&

Its disadvanta"es are5 A3B it is aste(ul o( $ersonnel time and e((ort and A@B it is less e+$editious&

@D&

-hat should be the $ro$er attitude o( $arties to the Grievance Procedure4

The $artiesJ attitude in handlin" "rievances* $robably more than in any other as$ect o( the labor% mana"ement relationshi$* indicates their "ood (aith& No here in that relationshi$ is mutual "ood (aith more im$ortant& The attitude o( the $arties is even more im$ortant than the ty$e o( "rievance $rovisions contained in the a"reement& This vie has been shared by unions and mana"ement ali#e in most cases in hich the "rievance $rocedure has been considered success(ul and in the ma)ority o( cases in hich the $rocedure has bro#en do n& Good "rievance machinery is im$ortant* but such machinery alone ill not insure success& The attitude* )ud"ment* e+$erience and trainin" o( the individuals involved are o( $rime im$ortance& Moreover* a desire to settle "rievances* rather than to in them* is essential&

@3& -hat is the res$onsibility o( the union ste ards and (oreman in handlin" "rievances4

Union ste ards and (oreman must see to it that "rievances are $resented only hen there is a real basis (or com$laint or there is a need (or a decision& I( ste ards are convinced that the or#er does not have a real case* it is better to tell him so ri"ht (rom the be"innin"& In borderline cases here it is (elt that the or#er has considerable )ustice on his side* he should be told o( the uncertainty o( the decision be(ore the case is $rocessed to "et a de(inite rulin" throu"h the "rievance $rocedure&

'oreman* on the other hand* should be trained in the human relations as$ects o( their )obs& They should be ready to listen (irst be(ore they start debatin" ith the em$loyee& They should note hat is bein" said rather than ho the matter is said& This ay* "ri$es are se$arated (rom "rievances* or "ri$es are $revented (rom becomin" "rievances&

=oth ste ards and (oreman should ma#e every e((ort to settle "rievances at the lo est ste$& Mana"ement has a le"al duty to $rovide all in(ormation that ill e+$lain the s$eci(ic details and basis ot its action to enable the sho$ ste ard to determine hether to $roceed ith the "rievance&

@@& May $arties to a collective bar"ainin" a"reement sti$ulate that certain matters or !uestions arisin" under the contract be e+em$t (rom the "rievance $rocedure4

The /abor Code (i+es the sco$e or covera"e o( the "rievance $rocedure and voluntary arbitration in Article @>3* to it5

; The voluntary arbitrator or $anel o( voluntary arbitrators shall have ori"inal and e+clusive )urisdiction to hear and decide all unresolved "rievances arisin" (rom the inter$retation or im$lementation o( the collective bar"ainin" a"reement and those arisin" (rom the inter$retation or en(orcement o( com$any $ersonnel $olicies re(erred to in the immediately $recedin" Article& Accordin"ly* violations o( a collective bar"ainin" a"reement* e+ce$t those hich are "ross in character* shall no lon"er be treated as un(air labor $ractice and shall be resolved as "rievances under the collective bar"ainin" a"reement& 'or $ur$oses o( this Article* "ross violations o( a collective bar"ainin" a"reement shall mean (la"rant andIor malicious re(usal to com$ly ith the economic $rovisions o( such a"reement&

; The Commission* its Re"ional O((ices and the Re"ional Directors o( the De$artment o( /abor and 1m$loyment shall not entertain dis$utes* "rievances or matters under the e+clusive and ori"inal )urisdiction o( the voluntary arbitrator or $anel o( voluntary arbitrator or $anel o(

voluntary arbitrators and shall immediately dis$ose and re(er the same to the "rievance machinery or voluntary arbitration $rovided in the collective bar"ainin" a"reement&<

It is the la hich con(ers to voluntary arbitrators their ori"inal and e+clusive )urisdiction and the $arties cannot diminish their )urisdiction by sti$ulation as this ould con(lict ith the basic directive o( the /abor Code&

@9& May !uestions concernin" terms and conditions actually obtainin" but not re(erred to in the C=A* althou"h $rovided (or in com$any manuals or $olicy statements* be sub)ect to the "rievance $rocedure4

-ith the e+$ansion o( the sco$e o( the ori"inal and e+clusive )urisdiction o( voluntary arbitrators to include !uestions arisin" out o( the inter$retation or im$lementation o( com$any $ersonnel $olicies* the ans er to the above is decidedly ;yes<&

=ut even be(ore this e+$ansion o( )urisdiction brou"ht about by RA >83?* under the theory o( im$lied incor$oration* e+istin" terms and conditions* thou"h not dealt ith in s$eci(ic $rovisions* ere already deemed $art o( the a"reement and thus* "rievable&

'ernande. !uotes Co+ and Dunlo$ in e+$lainin" the so%called theory o( im$lied incor$oration5

;A collective bar"ainin" a"reement should be deemed* unless an intention is mani(est* to carry (or ard (or its term the ma)or terms and conditions o( em$loyment not covered by the a"reement* hich $revailed hen the a"reement as e+ecuted&<

@G&

Ho

is "rievance $resented 4

Grievances ordinarily are brou"ht by the a""rieved em$loyee* usually ith the union re$resentative called the sho$ ste ard or "rievance o((icer* to the (oreman either orally or in ritin"& Usually a Grievance 'orm is $rovided (or the $ur$ose& I( no settlement is reached at (irst level* the a""rieved em$loyee or the "rievance o((icer may brin" the "rievance throu"h the successive ste$s in the "rievance $rocedure $rovided (or in the C=A&

As mandated by the /abor Code* as amended by Re$ublic Act >83?* all "rievances that remain unresolved a(ter e+haustin" all the internal $rocedures shall automaticallybe re(erred to voluntary arbitration $rescribed in the C=A i( they are not settled ithin seven A8B days (rom the date o( its submission to the last ste$ in the internal "rievance machinery&

@?&

-ho can (ile a "rievance 4

Generally* em$loyeesinitiate a "rievance& This is reco"ni.ed by Article @?? o( the /abor Code hich $rovides* amon" others* that ; C an individual em$loyee or "rou$ o( em$loyees shall have the ri"ht at any time to $resent "rievances to their em$loyer&<

,econdly* the "rievance $rocedure bein" $art and $arcel o( the ;continuous collective bar"ainin" $rocess< and the union desi"nated or selected by the ma)ority o( the em$loyees bein" their e+clusive bar"ainin" re$resentative* unionsare "enerally reco"ni.ed as havin" the ri"ht to initiate* (ile or $resent a "rievance* either ith re"ard to their ri"hts as unions under the contract* or ith re"ard to the ri"hts o( em$loyees* hether collective or individual&

Thirdly* hile em$loyersdo not as a "eneral rule initiate a "rievance* it ould be $rudent to include a $rovision in the C=A "rantin" the em$loyer such ri"ht* es$ecially in cases here the em$loyer may ish to use the "rievance machinery to resolve a !uestion over a va"ue or inde(inite $rovision o( a C=A&

@>&

Ho

are "rievance $rocessed 4

Pro(essor 'ernande. su""ests the (ollo in" a$$roach in the $rocessin" and ad)ustment o( "rievances5

;Processin" o( "rievances involves a )oint e((ort on A3B identi(ication o( the issue or issues involved A@B develo$in" its (actual basis or bac#"round A9B determinin" the contract $rovisions involved AGB evaluatin" the merits o( the "rievance in the li"ht o( the (actual bac#"round and a$$licable rules and A?B or#in" out a (air and )ust settlement&<

@8& -hat $re$arations should be underta#en in order that the "rievance can e((ectively be $resented by the "rievant4

The Trade Union Con"ress o( the Phili$$ines in its Manual (or ,ho$ ,te ardsrecommends the (ollo in" ste$s in $re$arin" (or the $resentation o( a "rievance5

3& Determine (irst i( there is a "enuine "rievance and i( there is* hether the same is )usti(ied or not&Has the contract been violated4 Has the or#er been treated un(airly by some action o( the com$any4 Is the em$loyer res$onsible4 Is the $roblem covered by the contract or $ersonnel $olicies in any ay4

@& ,tudy the C=A and com$any $ersonnel $olicies&A ,te ard or a "rievant ho is not (amiliar ith the C=A and com$any $ersonnel $olicies is li#e a navi"ator ithout a com$ass& Most "rievances are contract violations and i( the ste ard or the "rievant does not #no the contract or the com$any $ersonnel $olices* he ill not reco"ni.e a violation hen he sees one&

9& Get all (acts o( the case&=e sure to investi"ate the (ive -Js M the -HO* -H1N* -H1R1* -H0and -HAT&

-HO* re(ers to that $art o( the (orm that clearly identi(ies the or#er ith the "rievance& On this (orm is included5 3Bem$loyeeJs name* @B cloc# number Aor cha$a numberB 9B de$artment* GB shi(t* ?B classi(ication&

-H1N*re(ers to the time element& O(ten* in(ormation re"ardin" more than one date is needed to $ro$erly com$lete the (orm5 3B the date on hich the "rievance is o((icially ritten* @B the time and date on hich the "rievance actually ha$$ened* 9B the date on hich the "rievance as (iled in the (irst ste$ ith the (oreman* and GB the date on hich the (oreman "ave his decision& It is $articularly im$ortant in matters involvin" bac# $ay that all dates be clearly stated&

-H1R1*re(ers to the e+act $lace here the "rievance too# $lace%the de$artment aisle* or miracle&

-H0* re(ers to the reasons hy the com$laint is considered a "rievance& This is the heart o( the "rievance and should be ritten under the section that carries the headin" NNature o( Grievance&< It is im$ortant to remember that it is $ossible to have a le"itimate "rievance ithout bein" able to $oint to a violation o( a s$eci(ic clause o( the contract&

-HAT* re(ers to hat should be done about the "rievance M the settlement desired& Many "rievance (orms do not have a se$arate section headed* ;,ettlement Desired&< In those cases** it is customary (or the ,te ard to list his settlement re!uest at the end o( the section Nature o( Grievance&< It is e+tremely im$ortant that this be done since an arbitrator ill o(ten base his a ard solely on the ori"inal re!uest&

G& Discuss the "rievance ith the Union or other ste ards in order to learn ho the contract should be inter$reted and hat #ind o( settlement or ad)ustment ill be demanded&

?& It may be im$ortant to #no about $ast "rievance settlements o( similar nature as the "rievance to be $resented&

@7& -hat $re$arations should be underta#en by the res$ondent and his advocates in a "rievance to e((ectively $resent his action such that they may be understood and a$$reciated4

In the same manner that a "rievant or a ste ard has to $re$are (or the $resentation o( a "rievance* the em$loyer and his advocates do n the line in the mana"ement hierarchy* has to $re$are its ;de(ense< o( its action hich "ave rise to the "rievance& They must also $re$are by "ettin" all the (acts& I( it as a disci$linary action * hat has the "rievant done to deserve the disci$linary action4 -hen4 -here4 It is the em$loyer ho ill have the burden o( $roo( in )usti(yin" its action a(ter the "rievant and Ior the Union has $resented the "rievance&

The em$loyer or res$ondent has to be thorou"hly (amiliar ith the C=A and its o n $ersonnel $olicies& Althou"h the administration o( the C=A is a )oint e((ort bet een the Union and the em$loyer* the $rimary source or the ori"inator o( these $olicies is the em$loyer and he is there(ore e+$ected to be more ell%versed ith the $rovisions o( the C=A and its o n $ersonnel $olicies&

The em$loyer must be ready to )usti(y its action and convince the union or "rievant o( its reasonableness and (airness& He may $oint to a clear C=A $rovision as the le"al basis o( its action& He may re(er to a #no n com$any $olicy or $ractice that has been clearly and mani(estly violated by the "rievant or he may $oint to $recedents o( similar "rievances that ere resolved or ad)usted in (avor o( the em$loyer&

The bottom line is5 i( both $arties a"ree to the (acts* the road ahead is much clearer and ider&

@6& -hat remedy is available to a $arty i( the other re(uses to attend or a$$ear in the "rievance hearin"4

Art& @?@ o( the /abor Code $rescribes attendance in "rievance hearin"s as $art o( the $artiesJ duty to bar"ain collectively* to it5

;The duty to bar"ain collectively means the $er(ormance o( a mutual obli"ation to meet and convene $rom$tly and e+$editiously in "ood (aith (or the $ur$ose o( ne"otiatin" an a"reement ith res$ect to a"es* hours o( or# and all other terms and conditions o( em$loyment includin" $ro$osals (or ad)ustin" any "rievances or !uestions arisin" under such a"reement and e+ecutin" a contract incor$oratin" such a"reements i( re!uested by either $arty* but such duty does not com$el any $arty to a"ree to a $ro$osal or to ma#e any concession&

Any $arty "uilty o( non%attendance may there(ore be char"ed o( un(air labor $ractice* $ursuant to Art& @G7 A"B or Art& @G6 O& The other $arty may* as a matter o( choice* (ile re!uest (or $reventive mediation or a notice o( stri#e ith the NCM=* or (ile a U/P char"e ith the N/RC but not simultaneously& Art& @>G en)oins a stri#e or loc#out over a dis$ute that has been certi(ied or submitted to com$ulsory or voluntary arbitration or durin" the $endency o( cases involvin" the same "rounds (or the stri#e or loc#out&

The other school o( thou"ht $resents this $ro$osition5 Non%attendance in "rievance hearin"s im$lies that the non%attendin" $arty is not convinced that the "rievance machinery ill be use(ul or e((ective in ad)ustin" or resolvin" the "rievance and that* there(ore* he is deemed to have dis$ensed ith the $reliminary ste$ to voluntary arbitration& Under this theory** the $arties may then be deemed to have submitted the "rievance to voluntary arbitration&

9D& May a union "o on stri#e over an un(air labor $ractice act des$ite a no stri#eIno loc#out $rovision in the C=A $rovidin" (or the resolution o( such dis$ute throu"h the "rievance $rocedure and voluntary arbitration4 Is such a C=A $rovision $rovidin" (or arbitration in case o( U/P by either $arty valid4

There are t o con(lictin" decisions o( the ,u$reme Court on this matter&

One* $romul"ated on May 3?* 3686* in the case o( Phili$$ine Metal 'oundries* Inc&* vs& CIR* et& al*declared that a no stri#e $rohibition in a Collective =ar"ainin" A"reement is a$$licable only to

economic stri#es& In other ords* U/P is not covered and or#ers may "o on stri#e based on U/P des$ite the no stri#e $rovision&

The other* issued on ,e$tember 3D* 3686* in the case o( GOP%CCP -or#ers Union vs& CIR* hich $ronounced as not ille"al the sti$ulation in the collective bar"ainin" a"reement that ; in case o( any alle"ed un(air labor $ractice on the $art o( either $arty* there ill be no stri#es* loc#outs* or $re)udicial action C until the !uestion or "rievance is resolved by thee $ro$er court i( not settled throu"h a "rievance $rocedure therein outlined&<

In the li"ht o( the (act that the latter case is more recent and in vie o( the $resent state $olicy o( $re(erence (or voluntary modes o( dis$ute settlement* it is submitted that the latter decision is more conducive to industrial stability* unless the Un(air /abor Practice act o( the com$any is so "ross and so $atent as to threaten the e+istence o( the union&

,1/1CTION O' VO/UNTAR0 AR=ITRATOR

93& -hat "eneral considerations should "uide the $arties in their choice o( a voluntary arbitrator4

The choice o( an arbitrator must ta#e into account the (ollo in" "eneral considerations5 3B (ield o( choice* or the $roblem o( availability o( desired $ersonsE @B le"al !uali(icationE 9B le"al dis!uali(icationE and GB criteria and attributes o( a suitable arbitrator&

9@&

-hat attributes or criteria should a voluntary arbitrator $ossess4

1very arbitrator must $ossess certain attributes that ma#e him acce$table to the $arties interested in namin" him as arbitrator5 3B he must be ithout $re)udice or bias* @B he must be intelli"ent* 9B he must be ca$able o( e+ercisin" sound )ud"ment* GB he must be immune to $ressures (rom $arties to the dis$ute and (rom others* ?B he must be e+$erienced in the (ield o( labor relations&

99&

-hat are some established indicators o( acce$tability o( an arbitrator to the $arties4

Re(errin" to ,eit.& P& ; ,o you -ant To =e an Arbitrator*< !uoted Pro(essor 'ernande. listed the (ollo in"< indices o( acce$tabilities5

3& hi"hly #no led"eable and has had si"ni(icant e+$erience in the (ield o( labor la * labor relations* $ersonnel mana"ement and union $roblemsE

@& his roleE

has the ca$acity to run a hearin" (airly and com$etently and command res$ect in

9& is sensitive to and understands the needs o( the $arties inso(ar as a decision is concerned and the articulation o( the reasons u$on hich it is basedE

G& and*

has a re$utation in the industrial and union community (or (airness and im$artiality

?& because o( character* can be de$ended u$on not to de$art (rom the ethical standards hich arbitrators im$ose u$on themselves&

Other salient attributes based on survey o( mana"ement and union attitudes ere also listed5

3B @B 9B GB

decisions are based on the (acts o( the s$eci(ic case hi"hly consistent rulin"s broad vie $oint submits a detailed )usti(ication o( the decision

?B develo$s $ertinent in(ormation throu"h !uestionin" in the hearin" A2in" =&* Mana"ement and Union Attitude A((ectin" the 1m$loyment o( the Ine+$erienced /abor ArbitratorB

In another study* Davey& H&& ;Ho 3B @B 9B $ersonal inte"rity

Arbitrators Decide Cases&< The list consisted o( the (ollo in"5

)udicial sel(%detachment some #no led"e o( labor relations

GB reasonably hi"h level o( intelli"ence* combined ith analytical ability* humor* $atience* and all other "ood thin"s&

9G&

-ho are available (or a$$ointmentIselection as voluntary arbitrator in the Phili$$ines4

-hile in most industrial countries* there are three ty$es o( arbitrators available5 3B the $ro(essional arbitratorsE @B $ersons ho* ithout bein" $ro(essional* o(ten serve as arbitrators* and 9B amateurs* in the Phili$$ines* those available (or selectionIa$$ointment are those ho belon" to the second and third cate"ories& The list o( accredited voluntary arbitrators o( the National Conciliation and Mediation =oard available (or a$$ointment consists o( $ersons en"a"ed in (ull time or# as em$loyees and o((icials in the Government& 1ducational* civic and reli"ious institutions* trade union or"ani.ations and $rivate enter$rises& They are either members o( the Arbitration Association o( the Phili$$ines AAAPB or the Phili$$ine Academy o( Pro(essional Arbitrators APAPAB* hose bona(ide membershi$ in those or"ani.ations automatically (or accreditation& Others are individual a$$licants ho meet the (ollo in" minimum criteria (or accreditation5

3&

Must be a 'ili$ino citi.en residin" in the Phili$$ines&

@& Must be holder o( a =achelorJs de"ree in any (ield o( behavioral or a$$lied sciences or e!uivalent educational trainin"s short o( a =achelorJs De"reeE

9&

Must have at least (ive A?B years e+$erience in labor%mana"ement relationsE

G& =oardE

Must have com$leted a trainin" course on voluntary arbitration conducted by the

?& Must be a $erson o( "ood moral character* noted (or im$artiality* $robity* and has not been civilly* criminally and administratively ad)ud"ed "uilty o( any o((ense involvin" moral tur$itude as evidenced by a duly s orn a((idavitE

>&

Pro(icient in oralI ritten communication both in 1n"lish and Ta"alo"&

Under the Pro(essional Develo$ment Plan (or Accredited Voluntary Arbitrators* the (ollo in" minimum re!uirements (or accreditation ere set5

3&

Must be a 'ili$ino citi.en* residin" in the Phili$$ines

@& Must be a holder o( a =achelorJs de"ree in any (ield o( behavioral or a$$lied sciences or e!uivalent educational trainin" short o( a =achelorJs de"reeE

9& and

Must have at least (ive A?B years e+$erience in the (ield o( labor%mana"ement relationsE

G&

Has not been convicted o( any crime involvin" moral tur$itude&

9?&

I( individual a$$licant* ho does one a$$ly (or accreditation ith the NCM=4

Under the Voluntary Arbitration Accreditation ,ystem AVAA,B* the a$$licant shall submit an a$$lication letter ith the NCM= or any o( its Re"ional =ranches* to"ether ith5

3&

An u$dated bio%dataE

@&

T o A@B co$iesB o( ;@+@< blac# and hite $ictureE

9& ,chool records Atranscri$t o( records ith ,$ecial Order No& or e!uivalent certi(ication (rom schoolB* certi(yin" that a$$licant has satis(actorily com$lied the de"ree indicated in the bio%dataE

G&

Certi(icate o( 1m$loyment (rom $resent em$loyerAi( a$$licableBE

?& A((idavit statin" that A$$licant has not been convicted o( any crime involvin" moral tur$itudeE and

>& Names o( three A9B character re(erences ho can attest to a$$licantJs character* stature and e+$erience in the (ield o( labor%mana"ement relations&

A(ter the screenin" o( his !uali(ications by the NCM= and a(ter com$letion o( the bac#"round% re(erence chec# ith re"ard his stature and e+$erience in the (ield o( labor%mana"ement relations* the a$$licant ill be in(ormed accordin"ly hether he satis(ies the minimum re!uirements or not&

A$$licants ho meet the minimum re!uirements ill under"o a $anel intervie to be conducted by the Accreditation Committee& A(ter $assin" the $anel intervie * he ill be advised to attend a Pre%Accreditation Trainin" $ro"ram to e!ui$ him ith the basic #no led"e* s#ills and orientation necessary (or him to dis$atch the res$onsibilities and (unctions o( an accredited voluntary arbitrator&

A(ter the com$letion o( the Pre%Accreditation Trainin" Pro"ram* the a$$licant ill under"o a$$renticeshi$ to e+$ose him to actual arbitration $roceedin"s as conducted by a seasoned Accredited Voluntary Arbitrator and to enable him to e+ercise the #no led"e* s#ills and orientation he ac!uired (rom the Pro"ram in an actual arbitration session* under the su$ervision o( the said AVA&

U$on satis(actory com$letion o( all the $hases o( the VAA,* the ne AVA ill be "iven his Certi(icate o( Accreditation bearin" his Accreditation Number* and herea(ter ill (ormally ta#e his Oath o( O((ice and si"n the Roll o( Accredited Voluntary Arbitrators&

9>&

-hy should voluntary arbitrators see# accreditation ith the NCM=4

=y see#in" accreditation ith the NCM=* accredited voluntary arbitrators are "iven more o$$ortunity to be selected by the $arties ho have not named $ermanent arbitrator in their C=A* es$ecially i( those $arties see# the assistance o( the NCM= in the selection or a$$ointment o( an arbitrator& In cases li#e this* the NCM= ill utili.e the list o( accredited voluntary arbitrators (or $ur$oses o( selection and a$$ointment&

Moreover* accredited arbitrators are $rimary bene(iciaries o( trainin" $ro"rams conducted by the =oard and reci$ients o( all in(ormation* education and communication AI1CB materials hich are available ithout cost&

98& Ho are voluntary arbitrators chosen4 -hat are the variety o( methods in the selection o( arbitrator4

Parties in "eneral may choose bet een the use o( a tem$orary or $ermanent arbitrator& They have also a choice as to the number o( arbitrators to be used* either sin"le or $anel o( arbitrators or the so%called Arbitration =oard&

The most hi"hly desirable method o( selection is by mutual a"reement o( the $arties& Other alternative methods include the election or a$$ointment by an administrative a"ency li#e the NCM=&

97&

Ho

is a tem$orary or ad hoc arbitrator distin"uished (rom $ermanent arbitrator4

Tem$orary or ad hoc arbitrator is selected a(ter dis$ute arises& He is named to arbitrate a s$eci(ic dis$ute or a s$eci(ic "rou$ o( dis$utes* and there is no commitment to select him a"ain& Permanent arbitrator on the other hand* is one ho is selected to serve (or a $eriod o( time usually durin" the li(e o( the C=A* rather than (or )ust one case or s$eci(ic "rou$ o( cases&

97& -hat are the advanta"es and disadvanta"es in the desi"nation o( tem$orary arbitrators4 Permanent arbitrator4

It is conceded that $ossibility o( easy chan"e o( arbitrators is one o( the chie( advanta"es o( the use o( tem$orary arbitrators& I( $arties are satis(ied and the arbitrator is available* he can be selected a"ain and a"ain& 'or $arties ith relatively (e dis$utes* a$$ointment o( ad hoc arbitrators ans er (or economy and li#e ise $ermits selection o( arbitrators $ossessed o( s$ecial !uali(ication and technical e+$ertise needed in each case& Moreover* the tem$orary nature o( his a$$ointment lessens the bias that is li#ely to result (rom his $ersonal ac!uaintance ith both $arties&

A$$ointment o( $ermanent arbitrator au"ers ell (or continuin" stability in relationshi$* consistency in $olicy and develo$ment o( established )uris$rudence and mutually acce$table $rocedures* that can save on time and naturally* on cost& =ein" named in advance* no time is lost in selectin" a $ermanent arbitrator a(ter the dis$ute arises and di((iculty in selection is avoided throu"h the hi"hly desirable method o( mutual choice by the $arties&

GD& Ho is a Tri$artite Arbitration =oard constituted and hat are its advanta"es and disadvanta"es4

The =oard* hich may either be tem$orary or $ermanent* is made u$ o( one or more members selected by mana"ement and e!ual number selected by labor* and a neutral member ho serves as chairman & The im$artial member acts li#e a sin"le arbitrator and $artisan members serve as $artiesJ re$resentatives&

Tri$artite boards do not o(ten reach unanimous decisions and in most C=As* a ma)ority a ard becomes (inal and bindin"& The side hose $osition is (avored by the neutral member "enerally )oins the neutral in a ma)ority a ard* ith the ri"ht to dissent reserved to the other $arty re$resentatives&

In a tri$artite board* the neutral member is $rovided ith the able advice and assistance the $artisan members* #ee$in" him ade!uately in(ormed o( the $artiesJ real $ositions hich may not be e+actly the same as their (ormal $ositions& The use o( a tri$artite board is most advisable in the arbitration o( interest dis$utes& =ut because o( the $ossible delay in the a$$ointment o( $artisan members* in the hearin" o( the case* in ritin" o( ma)ority and dissentin" o$inions* many $arties $re(er not to use tri$artite boards (or ri"hts dis$utes&

G3&

Ho

may the NCM= assist the $arties in the selection o( arbitrators4

To (acilitate selection* the =oard ill sendI$rovide the $arties ith a list o( names o( accredited voluntary arbitrators (rom its Roll& The $arties ill have the $rivile"e to cross o(( names ob)ected to and to indicate $re(erence (rom the remainin" names in the list& The =oard then ma#es the a$$ointment u$on the re!uest o( the $arties (rom the remainin" names on the list in the order o( $re(erence& I( the $arties (ail to a"ree on any o( the names submitted* they may re!uest (or additional lists& I( they still cannot a"ree* the NCM= shall a$$oint an arbitrator not a$$earin" on the list&

G@& Do e+istin" la s* rules and re"ulations in the Phili$$ines $rovide (or the !uali(ications* attributes* (unctions* role and e+tent o( authority o( voluntary arbitrators4

01,& Re$ublic Act >83? and its Im$lementin" Rules and the NCM= Procedural Guidelines in The Conduct o( Voluntary Arbitration Proceedin"s $rovide the basic le"al and $rocedural re!uirements in handlin" voluntary arbitration cases& The NCM= Code o( Pro(essional Res$onsibility (or Accredited Voluntary Arbitrators o( /abor%Mana"ement Dis$utes li#e ise de(ines the arbitratorsJ !uali(ications* their res$onsibilities to the $ro(ession* to the $arties and to the administrative a"ency in the $er(ormance o( their (unctions&

G9& Can any o( the $arties re!uest the re$lacement o( a voluntary arbitrator on such "rounds as $atent $artiality or "ross i"norance o( the la 4

The matter o( inhibitin" a voluntary arbitrator or re!uestin" his re$lacement is better addressed to the sound discretion o( the voluntary arbitrator himsel(& Unless the arbitrator is someone chosen (or the $arties by the NCM= $recisely because they have disa"reed on the choice earlier* the !uestion o( lac# o( trust and con(idence in the im$artiality o( the voluntary arbitrator is rarely brou"ht at issue because the $arties have $resumably thorou"hly screened the educational and ethical bac#"round o( the arbitrator be(ore a$$ointin" him as their arbitrator&

-hether chosen by the $arties or a$$ointed (or them by the NCM=* it ould be ell (or the arbitrator to disclose any $ossible con(lict o( interest due to $ecuniary ties or those arisin" out o( ties o( consan"uinity or a((inity ith any o( the $arties be(ore hearin" the merits o( the case&

,COP1 O' VO/UNTAR0 AR=ITRATION

GG&

-hat are the ty$es o( labor dis$utes that may be submitted to voluntary arbitration4

Under Article @>3 o( the /abor Code* as amended* the (ollo in" dis$utes are sub)ect to the ori"inal and e+clusive )urisdiction o( voluntary arbitrator or $anel o( voluntary arbitrators5 3B unresolved "rievances arisin" (rom C=A inter$retation or im$lementation& These include C=A violations hich are not "ross in character* meanin"* (la"rant andIor malicious re(usal to com$ly ith the economic $rovisions o( the C=AE @B unresolved "rievances arisin" (rom $ersonnel $olicy en(orcement and inter$retation includin" disci$linary cases& These dis$utes are o(ten re(erred to as ;ri"hts dis$utes<&

Under Article @>@ o( the same Code* all other labor dis$utes includin" un(air labor $ractices and bar"ainin" deadloc#s may also be submitted to voluntary arbitration u$on a"reement o( the $arties& =ar"ainin" deadloc#s are o(ten re(erred to as ;interest dis$utes&<

Article @>9 AhB li#e ise allo s the $arties u$on a"reement* to submit even the so%called ;national interest cases< to voluntary arbitration* be(ore or any sta"e o( the com$ulsory arbitration $rocess $rior to the submission o( the resolution&

Re$ublic Act Nos& >8@8 and >683 enacted on 8 Kuly 3676 and @@ November 366D* res$ectively* also e+$anded the )urisdiction o( voluntary arbitration to include5 3B all unresolved a"e distortion cases as a result o( the a$$lication o( a"e orders issued by any Re"ional Tri$artite -a"es and Productivity =oard in establishments here there is collective bar"ainin" a"reement or reco"ni.ed labor union* and @B all unresolved dis$utes* "rievances or other matters arisin" (rom the inter$retation and im$lementation o( a $roductivity incentives $ro"ram hich remains unresolved ithin t enty A@DB calendar days (rom the time o( the submission to labor% mana"ement committee&

G?&

Ho

are interest dis$utes distin"uished (rom ri"hts dis$utes4

The U, ,u$reme Court has e+$lained the (undamental distinction as (ollo s5

;The (irst relates to dis$utes over the (ormation o( collective a"reements or e((orts to secure them& They arise here there is no such a"reement or here it is sou"ht to chan"e the terms o( one* and there(ore the issue is not hether an e+istin" a"reement controls the controversy& They loo# to the ac!uisition o( ri"hts (or the (uture* not to assertion o( ri"hts claimed to have vested in the $ast&

The second class* ho ever* contem$lates the e+istence collective a"reement already concluded or* at any rate* situation in hich no e((ort is made to brin" about a (ormal chan"e in terms or to create a ne one& The dis$ute relates either t o the meanin" or $ro$er a$$lication o( a $articular $rovision ith re(erence to a s$eci(ic situation or to an omitted case& In the latter event the claim is (ounded u$on some incident o( the em$loyment relation* or asserted one* inde$endent o( those covered by the collective a"reement PPP& In either case the claim is to ri"hts accrued* not merely to have ne ones created (or the (uture&<

G>& -hat is arbitratorJs (unction in ri"hts dis$utes4 In interest dis$utes4

In "eneral* the (unction o( the ri"hts arbitrator is !uite similar to that o( court in construin" contract& The (unction is basically that o( ad)udication rather than le"islation& The $arties very (re!uently $rovide that the arbitrator shall have no $o er to add to* subtract (rom* or modi(y any $rovision o( the a"reement&

In United ,teel or#ers v& 1nter$rise -heel and Car Cor$&* 7D Ct& 39?7* 39>3* the ,u$reme Court bluntly con(ined arbitrators to the (unction s$eci(ied by the $arties5

-hen an arbitrator is commissioned to inter$ret and a$$ly the collective bar"ainin" a"reement* he is to brin" his in(ormed )ud"ment to bear in order to reach a (air solution o( a $roblem&

This is es$ecially true hen it comes to (ormulatin" remedies& PPP Nevertheless* an arbitrator is con(ined to inter$retation and a$$lication o( the collective bar"ainin" a"reementE he does not sit to dis$ense his o n brand o( industrial )ustice& He may o( course loo# (or "uidance (rom many sources yet his a ard is le"itimate only so lon" as it dra s its essence (rom the collective bar"ainin" a"reement& -hen the arbitratorJs ords mani(est an in(idelity to this obli"ation* courts have no choice but to re(use en(orcement o( the a ard&

In interest dis$utes* the arbitratorJs role is that o( ;le"islator< or ;bar"ainer< (or the $arties& As e+$lained by Arbitrator 1manuel ,tein* ;the tas# is more nearly le"islative than )udicial& The ans ers are not to be (ound ithin the ;(our corners< o( a $re%e+istin" document hich the $arties have a"reed shall "overn their relationshi$& /ac#in" "uidance o( such a document hich con(ines and limits the authority o( arbitrators to a determination o( hat the $arties had a"reed to hen they dre u$ their basic a"reement* our tas# is to search (or hat ould be* in the li"ht o( all the relevant (actors and circumstances* a (air and e!uitable ans er to a $roblem hich the $arties have been able to resolve by themselves&<

Interest arbitrator su$$lements the collective bar"ainin" $rocess by doin" the bar"ainin" (or both $arties a(ter they have (ailed to reach a"reement throu"h their o n bar"ainin" e((orts& In carryin" out this (unction as le"islator or bar"ainer (or the $arties* interest arbitrator must strive to achieve a or#able solution& Fuotin" ,oule* -a"e Arbitration* >%8 A36@7B* 1l#ouri states5 ;AThe arbitrator isB not a su$erior sort o( dictator* dis$ensin" )ustice (rom on hi"h* but an a"ent o( the t o sides to the collective bar"ainin"& His )ob is to reach a solution that ill be satis(actory enou"h to be or#able& He has to ta#e into consideration their relative stren"th and their relative necessities& He has to remember not to de$art so (ar (rom a $ossible com$romise* consistent ith the res$ective $o er and desires o( the $arties* that one or the other o( them ill be li#ely ne+t time to $re(er o$en hostility to $eace(ul settlement& He has also to remember that a decision is useless i( it cannot be en(orced and that the $o er and ability o( the res$ective $arties to administer a decision success(ully is an inte"ral $art o( the decision itsel(&

;A decision hich cannot be carried into e((ect or hich ill create lastin" dissatis(action is not really a decision at all& On this account a a"e arbitration is not an e+ercise in $ure reason and a summary o( merely lo"ical ar"uments* accom$anied by the o$inion accom$anyin" the decision* does not tell the hole story& Arbitrators (re!uently do not* o( course* (ully understand these limitations the more success(ul ones do so&<

AR=ITRA=I/IT0 I,,U1,5

G8& Can a "rievance be brou"ht to voluntary arbitration ithout $assin" throu"h the "rievance $rocedure under the C=A4

This a$$ears to be $rescribed by the /abor Code hich directs the $arties to a C=A to establish a "rievance machinery (or the ad)ustment and resolution o( "rievances arisin" (rom the inter$retation or im$lementation o( their C=A and those arisin" (rom the inter$retation or en(orcement o( com$any $ersonnel $olicies&

In vie * ho ever* o( the ,tate $olicy to encoura"e voluntary arbitration o( all other labor% mana"ement dis$utes* it is submitted that a "rievance may be brou"ht directly to voluntary arbitration ithout $assin" throu"h the "rievance machinery* es$ecially hen the latter has been $roven to be ine((ective in the $ast* or hen the $arties inadvertently railed to include a "rievance machinery $rovision in their C=A&

G7& I( a "rievance is brou"ht to arbitration* could any $arty add issues other than the "rievance itsel(4

,ince the labor $olicy encoura"es the settlement or resolution o( all issues or irritants in the labor%mana"ement relationshi$ as a means o( $romotin" industrial stability* it is submitted that a $arty to a voluntary arbitration case can add issues other than the "rievance* $rovided it does not "ive undue advanta"e to one and cause $re)udice to the other& The $arty ishin" to add other issues must in(orm the other $arty and see# his con(ormity&

The other situation hich could allo an issue to be added is hen a(ter the "rievance has been $resented* it as discovered that it as lin#ed or interrelated to another issue not $reviously resolved and the resolution o( the latter is necessary to the (inal determination o( the "rievance&

G6&

-hat are ;arbitrability issues< and hen may they arise4

Issues o( arbitrability are those that may be raised by any o( the $arties to an arbitration case on any o( the (ollo in" "rounds5

3& that the case does not involve any o( the dis$utes that are covered by the arbitration clauseE

@& that hile covered by the arbitration clause* some conditions $recedent such as the e+haustion o( the "rievance $rocedure* or timely notice o( intent to arbitrate has not been met&

-hen an e+istin" dis$ute is ta#en to arbitration by a )oint submission o( the $arties* ordinarily there is no $roblem o( arbitrability since the submission by the $arties identi(y the dis$ute and a"ree to its arbitrability& Ho ever* hen only one $arty initiates arbitration by (ilin" a notice o( intent to arbitrate under the arbitration clause he a"reement* the other $arty may raise issues o( arbitrability&

?D&

-ho decides the issue o( arbitrability4

The determination o( arbitrability is o(ten le(t by the $arties to the arbitrator or to the administrative a"ency li#e the NCM= in lieu o( the court& The $arties can s$eci(ically $rovide in

the a"reement the $ro$er authority to decide the issue o( arbitrability& 1ven in the absence o( such $rovision* it is an acce$ted $rinci$le that a $reliminary decision relatin" to arbitrability by an arbitrator is an inherent $arts o( his duty&

AR=ITRATION PROC1DUR1, AND T1CHNIFU1,

?3&

In "eneral* hat is the e+tent o( the authority o( an arbitrator4

As a "eneral rule* the authority o( an arbitrator embraces or covers the (ollo in"5

3& General authority to investi"ate and hear the case u$on notice o( the $arties and to render an a ard based on the contract and record o( the caseE

@& Incidental authority to $er(orm all acts necessary to an ade!uate dischar"e o( his duties and res$onsibilities li#e settin" and conduct o( hearin"* attendance o( itnesses and $roo( documents and other evidences* (act%(indin" and other modes o( discovery* reo$enin" o( hearin"* etc&E

9& ,$ecial $o er in aid o( his "eneral contractual authority li#e the authority to determine arbitrability o( any $articular dis$ute and to modi(y any $rovision o( e+istin" a"reement u$on hich a $ro$osed chan"e is submitted (or arbitration&

?@&

-ho determines the arbitration $rocedures that may a$$ly in a "iven case4

In $ractice* it (re!uently ha$$ens that in a "iven case* some o( the $rocedures used are based u$on the le"al re!uirements ARe$ublic Act >83? and Im$lementin" RulesB* a"reement o( the $arties AC=A and relevant a"reementsB* directives o( the arbitrator* and $rocedural rules o( a$$ro$riate a"encies li#e the NCM= Procedural Guidelines in Conduct o( Voluntary Arbitration Proceedin"&

?9&

-ho controls the arbitration $roceedin"s4

It is "enerally acce$ted that the conduct o( arbitration $roceedin"s is under the )urisdiction and control o( the arbitrator sub)ect to such rules o( $rocedures that the $arties may )ointly $rescribe or those hich a$$ro$riate a"encies li#e the NCM= may le"ally re!uire&

?G&

Ho

may arbitration be initiated4

Arbitration may be initiated either by 3B a ,ubmission or @B by a demand or Notice invo#in" a collective a"reement arbitration clause& ,ometimes both instruments are used in a case& A1l#ouri and 1l#ouriB&

??&

Ho

do e distin"uish ,ubmission (rom Demand or Notice to Arbitrate4

,ubmission is sometimes called a ;,ti$ulation< or an ;A"reement to Arbitrate<& It is used here there is no $revious a"reement to arbitrate& The ,ubmission hich must be si"ned by both $arties* describes an e+istin" dis$ute o(ten names the arbitrator* $rocedures in the hearin" and it sometimes contains considerable details o( the arbitratorJs authority and other matters hich the $arties ish to control& ,ubmission is more a$$ro$riate in interest dis$utes since collective a"reement "enerally do not $rovide (or the arbitration o( such dis$utes that may arise in the (uture& ,ubmission is o(ten entered into a(ter the dis$ute has materiali.ed and the issues can already be de(ined&

Ho ever* Demand or Notice o( Intent to Arbitrate is more a$$licable to ri"hts dis$ute because collective a"reements are re!uired under Re$ublic Act >83? to $rovide (or a "rievance $rocedure and a voluntary arbitration clause ith res$ect to dis$utes arisin" (rom the a$$lication or inter$retation o( the a"reement& Thus* there is an ;a"reement to arbitrate< (uture dis$ute that may arise under and durin" the term o( the C=A& I( a dis$ute is covered by such an arbitration clause* arbitration maybe initiated unilaterally by one $arty by servin" u$on the other a ritten demand or notice o( intent to arbitrate&

?>& -hat are some o( the reasons hy $arties to a case may still choose to e+ecute a submission even i( there is already an arbitration clause in the C=A4 In various decided American cases* some reasons ere "iven (or doin" so5

3& To e+$and or diminish the authority o( the arbitrator $rovided by the collective a"reement AInternational ,hoe Co&* @3 /A ??D* ??D%??3* Roder* 36?9E 1&2& Porter Co& vs& United ,a * 'ile and ,teel Production -or#ers* GD> '&@d >G9 and District Council vs& Anderson* 3DG /RRM @377* @376B

@& To state $recisely the issue to be decided by the arbitrator* and indicate the sco$e o( is )urisdiction more $recisely A1&I du Pont de Nemours and Co&* 96 /A 3D79* 3D7GB

9& To state $rocedural details here the $arties desire to control them and the collective a"reement contains little or no detail in re"ard thereto&

G& In arbitration under a la * to com$lete any statutory re!uirements not met by the arbitration clause o( the collective a"reement

?& To con(irm the arbitrability o( the $articular dis$ute A2ra(t 'oods Co&* 3G? /A 99>B

>& To $rovide additional o$$ortunity to settle the dis$ute

8&

To a"ree to a remedy

In ne"otiatin" on a submission* the $arties may (ind that they are not too (ar a$art (or ne"otiated settlement o( the basic dis$ute&

?8& -hat $re$arations should the $arties and their advocates underta#e in order that they ill be able to $resent their res$ective cases and $ositions most e((ectively4

To (acilitate the hearin" o( the case* $arties shall ensure the e((ective $resentation o( the (acts and ar"uments o( their res$ective cases by underta#in" the (ollo in" $re$arations5

3& ,tudy the ori"inal statement o( the "rievances and revie the "rievance machinery&

its history throu"h every ste$ o(

@& 1+amine care(ully the initiatin" document hether it is the Demand (or Arbitration or the ,ubmission A"reement* to hel$ determine ith certainty the sco$e o( the arbitratorJs )urisdiction

9& Revie the collective bar"ainin" a"reement $articularly the s$eci(ic $rovisions involved and other related $rovisions includin" any $ertinent com$any $olicy* rules and re"ulations&

G& Com$ile all documents needed at the hearin" ma#e available $hotoco$ies (or the arbitrator and the other $arty& -here some o( the documents needed are in the $ossession o( the other $arty* ma#e arran"ements to ensure availability durin" the hearin"& Other ise* motions (or the issuance o( sub$oenas may be availed o( $rior to or durin" the hearin"&

?& I( ocular ins$ection is material to the case* ma#e advance arran"ements ith the arbitrator& Durin" on%the%s$ot investi"ations* the arbitrator must be accom$anied by the re$resentatives o( both $arties&

>& Intervie all itnesses and ensure that they understand the hole case and their $articular relevance and im$ortance o( their testimony to the case& Ma#e a ritten summary or chec#list o( the $oints u$on hich each itness ill testi(y to ensure that nothin" is overloo#ed durin" the hearin"&

8& ,tudy the case (rom the other $artyJs $oint o( vie & Antici$ate rebuttal !uestions and $re$are to res$ond to the evidence and ar"uments $resented by the other $arty&

7& Revie articles* re(erences and $ublished a ardsIdecisions and )uris$rudence on the "eneral sub)ect matter in dis$ute

AR=ITRATION H1ARING

?7&

In "eneral* hat are the $rocedural ste$s in the conduct o( arbitration hearin"4

Arbitration hearin" normally involves many* i( not all* o( the (ollo in" ste$s5

3& The ta#in" o( the oath by the arbitrator and his o$enin" statement

@& =rie( statement o( the issues in controversy by the $arties

9& ,ti$ulation o( the (acts

G& Presentation o( evidence by the "rievant& The voluntary arbitrator shall have a ide latitude o( discretion in determinin" the order o( $resentation& In disci$linary cases* it is the $arty ho disturbed the status !uo in the relationshi$ ho ill $resent the case& In cases o( contract inter$retation* the statement shall be $resented (irst by the initiatin" $arty&

?& Presentation o( evidence by the other $arty

>& ,u$$lementary (act%(indin" $rocedures* such as ocular ins$ections

8& Hearin"s and )ud"ment o( De(ault

7&'ormal o((er o( evidence

6& 'ilin" o( brie(s and re$ly brie(s&

3D& Closin" o( Hearin"

?6&

-ho may re$resent $arties in arbitration $roceedin"s4

It is "enerally a"reed that each $arty has the ri"ht to be re$resented in arbitration $roceedin"s by $ersons o( their o n choosin"& He can be the s$o#esman in the $rearbitral sta"es o( the "rievance $rocedures li#e the sho$ ste ards and (oremen* to$ union and com$any o((icials* or com$any or union attorney&

>D&

-ho are entitled to attend arbitration hearin"s4

As a rule* arbitration hearin" is not o$en to the $ublic& Only $ersons havin" direct interest in the case* that is* the $arties and their authori.ed re$resentatives are entitled to attend the hearin"& Other $ersons may be $ermitted to attend the hearin" only ith the $ermission o( the arbitrator or the $arties&

>3& -ho is res$onsible in settin" the time and $lace o( hearin" and the sendin" o( the notice o( hearin"4

Ordinarily* the arbitrator ill meet at any time and $lace a"reed to by the $arties* i( he is available& Other ise* he (i+es the time and $lace in consultation ith the $arties and "ives timely and ritten notice o( such date* time and $lace o( the hearin"&

>@& Is the ta#in" o( the oath by the arbitrator o( the NCM= and itnesses necessary in arbitration $roceedin"s4

All Accredited Voluntary Arbitrators o( the NCM= ta#e their oath o( o((ice to com$lete their accreditation and are no lon"er re!uired to do so be(ore $roceedin" ith the (irst hearin" o( the case&

The s earin" in o( itnesses is o(ten $re(erred hether re!uired by la de$ends on the Arbitrator&

or not& =ut this

>9& -hat is the im$ortance o( ,ti$ulation o( 'acts4 -hen may $arties enter into such sti$ulation4

An a"reed statement o( (acts e+$edites the arbitration hearin" by reducin" the number o( necessary itnesses and (ocusin" attention on dis$utes on dis$uted issues or (acts o( the case& The $arties at their o n initiative or u$on the su""estion o( the arbitrator* may enter into ,ti$ulation o( 'acts be(ore or durin" the hearin"&

>G&

To hat e+tent should arbitrator $artici$ate in the hearin"4

Arbitrators must (eel (ree to $artici$ate $ersonally in the hearin" by as#in" !uestions* see#in" in(ormation* and e+$lorin" all an"les hich he deems necessary (or a (ull understandin" o( the case& He must ta#e the initiative in reconcilin" a$$arent contradictions or in see#in" insi"hts into the motives o( those hose testimony is at odds&

>?& ,hould settlement by the $arties on some or all o( the issues be encoura"ed orallo ed a(ter arbitration has been initiated or hearin" has already commenced4

Arbitrators are encoura"ed under the la to conciliate or mediate to aid the $arties in reachin" voluntary settlement even a(ter arbitration has been initiated and an arbitration hearin" already commenced&

>>&

Is the arbitrator com$elled to set (orth the terms o( settlement in an a ard4

Generally* hen $arties settle their dis$ute durin" the course o( arbitration they o(ten re!uest that the arbitrator set (orth the terms o( the settlement in the a ard& I( the arbitrator believes that the a"reement is $ro$er* (air* sound and la (ul* it becomes his res$onsibility to ado$t the same&

>8&

Is the need (or a hearin" a basic re!uirement in all arbitration $roceedin"s4

A hearin" in the $resence o( the arbitrator is deemed im$erative in virtually all cases& In "ivin" each $arty (ull and (air o$$ortunity to be heard* the arbitration hearin" simultaneously serves to in(orm the arbitrator (ully re"ardin" all material as$ects o( the dis$utes& 1ven hen the $arties a"ree to submit their case on the basis o( sti$ulated (acts* ritten brie(s and a((idavits* the arbitrator may not al ays a"ree that the case be $ro$erly resolved ithout a hearin"&

In the case o( Natividad vs& -or#menJs Com$ensation Commission* cited in the $a$er $resented by Atty& Rosa Maria =autista durin" the Institute on Grievance ,ettlement and Voluntary Arbitration* here the De$artment o( /abor held no hearin" to enable it to dis$ose o( or terminate at the !uic#est $ossible time all or#menJs cases (iled on or be(ore March 93* 368?* the ,u$reme Court throu"h Kustice Cecilia Muno. Palma stated5

,uch an ar"ument does violence to the $rinci$le o( due $rocess hich the Court must u$hold at all times es$ecially here substantial ri"hts o( a liti"ation are at sta#e& 1+$ediency cannot be invo#ed at the sacri(ice o( $rocedural due $rocess&

The due $rocess re!uirement is not a mere (ormality that may be dis$ensed ith at ill& Its disre"ard is a matter o( serious concern& It is a constitutional sa(e"uard o( the hi"hest order& It is a res$onse to manJs intimate sense o( )ustice& It demands that "overnment acts* more es$ecially so in the case o( the )udiciary* be not in(ected ith arbitrariness& It cannot be satis(ied unless the elementary re!uirements o( (airness are met&

Generally* the arbitrator must in(orm the $arties that relevant and material evidences must be $resented re"ardless o( the (orm ith minimal use o( technicalities&

>7&

-hen may an arbitrator "rant continuances or ad)ournment o( hearin"4

An arbitrator may "rant continuances or ad)ourn the hearin" (rom time to time u$on )oint re!uest o( the $arties or at the initiative o( only one $arty (or "ood cause sho n&

Continuances are o(ten due to the absence o( itnesses or evidence and the re!uest* even i( o$$osed by the other $arty* may be "ranted i( such absence as not due to the (ault o( the re!uestin" $arty&

>6& Are transcri$ts o( hearin" al ays necessary in arbitration $roceedin"s4 -ho $ays (or the cost4

A (ormal ritten record o( the hearin" is not al ays necessary& In sim$le cases* the arbitrator can ta#e ade!uate notes& On contract inter$retation cases* there bein" no dis$uted (acts** the arbitratorJs notes* the $arties e+hibits and brie(s ordinarily ma#es a transcri$t unnecessary& In com$licated cases* ho ever* steno"ra$hic records ill be very hel$ i( not indis$ensable& The transcri$t ill aid the arbitrator in studyin" the case* the $arties in $re$arin" the brie(s* and the court in revie in" the case on a$$eal&

The cost o( the transcri$t is usually shared e!ually by the $arties ith each $arty $ayin" (or e+tra co$ies it orders&

8D&

-hat are e+hibits and ho are they o((ered in evidence4

They are evidence $resented and $reserved in ritten (orm& 1ach $arty may use a itness to identi(y the e+hibit and to sho its accuracy i( the other $arty does not acce$t the same (or hat it $ur$orts to be& Co$ies o( the e+hibit should be $re$ared in advance and co$ies "iven to the other $arty and the arbitrator

83& -hen may a voluntary arbitrator conduct e+ $arte $roceedin"s and render de(ault a ards4

Only an une+$lained (ailure to a$$ear due notice* not a delay in a$$earance* can )usti(y an e+ $arte $roceedin"& The Arbitrator must $roceed to hear the testimony and receive all the evidences submitted by the other $arty includin" those that he may re!uire (or the ma#in" o( an a ard&

8@& -hen may $lant visits by arbitrator necessary in arbitration $roceedin"s4

A $lant visit may be indis$ensable i( the conduct thereo( hel$s the arbitrator secure a better understandin" o( the case and in some cases* avoid voluminous testimony& Plant visit may be done at the initiative o( the arbitrator or at the re!uest o( any $arty to the dis$ute&

89& -hat is the im$ortance o( o$enin" and closin" statements in arbitration $roceedin"s4

O$enin" statements $rovide the arbitrator in brie( and clear lan"ua"e about each $artyJs vie o( hat the dis$ute is all about and hat each e+$ects to $rove by its evidence& Throu"h closin" statements* $arties render a real service to the arbitrator and to themselves by care(ul analysis and synthesis o( the im$ortant as$ects o( the cases* the (acts $roven and $lacin" them in $ro$er relation to the ultimate conclusion they see# the arbitrator to arrive&

8G& -hen is the hearin" deemed ;closed< (or $ur$oses o( renderin" an a ard4

Hearin"s are deemed closed hen all evidence and ar"uments o( the $arties have been received and (inal ad)ournment is declared& Ho ever* i( brie(s and other documents are to be (iled a(ter such ad)ournment* the hearin" is deemed closed a(ter recei$t o( said documents&

8?& -hen may re%o$enin" the hearin" be allo ed4

Under acce$ted $ractice the arbitrator on his o n initiative* or u$on re!uest o( a $arty (or "ood cause sho n* may reo$en the hearin" at any time be(ore the a ard is rendered& I( reo$enin" ould $revent the issuance o( the a ard ithin the mandatory time limit* the hearin" may not be reo$ened unless the $arties a"ree to e+tend the time limit&

Good cause sho n include the introduction o( ne evidences not available durin" the hearin"* the admission o( hich ill $robably a((ect the outcome o( the case* and it is sho n that reason reasonable "rounds e+ist (or its non%$roduction at the o( hearin"&

8>& -hen may ithdra al o( cases (rom arbitration be allo ed4

Parties may ithdra a case throu"h a"reement& It has been su""ested that the com$laint usually may ithdra the case at any $oint $rior to arbitration hearin"* but a(ter the hearin" has commenced* he may not ithdra the case over the ob)ection o( the other $arty unless $ermitted by the arbitrator& A"reement $rovision usually allo s ithdra al o( the case a(ter arbitration hearin" only by mutual consent o( the $arties&

1VID1NC1

88&

Ho is evidence a$$reciated in voluntary arbitration $roceedin"s4

,ection 7* Rule VI o( the NCM= Procedural Guidelines in the Conduct o( Voluntary Arbitration Proceedin"s states that the relevancy and materiality o( the evidence $resented may be solely determined by the arbitrator and he may allo or acce$t evidence* the arbitrator shall not be bound by the Rules o( Court $ertainin" to evidence&

87&

Ho should a voluntary arbitrator receive the evidence $resented by the $arties4

,trict observance o( le"al rules o( evidence usually is not re!uired but not the $arties in all cases must be "iven ade!uate o$$ortunity to $resent all o( their evidences and ar"uments& Voluntary Arbitration are ell advised to be very liberalin the rece$tion o( evidence&

86&

-hat are the common ty$es o( evidence used in arbitration $roceedin"s4

1vidence introduced vary (rom case to case accordin" to the !uestion involved& There are ho ever more or less s$eci(ic ty$es o( evidence re!uired (or each "eneral ty$e o( case5

3& In dis$utes over the settin" o( "eneral a"e rates M the most im$ortant ty$e o( evidence is documented statistical and economic data on such matters as $revailin" $ractice* cost o( livin"* ability to $ay and the li#e&

@& In dischar"e or disci$line cases* the most im$ortant evidence "enerally comes in the (orm o( testimony o( itnesses that ill establish the (acts that led to the disci$linary action& I(

the issue $enalty determination* the $ast record o( $er(ormance o( em$loyee and evidence o( $ast disci$linary action ill be material&

9& In contract inter$retation cases* the history o( $re%contract ne"otiations and the $ast $ractice o( the $arties n a$$lyin" the dis$uted $rovision ill be im$ortant

In some cases* visual or $ictorial evidence is use(ul& Indeed* as lon" as evidence ;(its< and is relevant to the case the unusual nature o( the evidence should not bar its admission and consideration&

7D&

Are voluntary arbitrators authori.ed to issue sub$oena4

Re$ublic act >83? and its im$lementin" rules em$o er the voluntary arbitrator to hold hearin"s* receive and ;ta#e hatever action is necessary to resolve the issue or issues sub)ect o( the dis$ute* + + +<

Usin" the (ore"oin" statement con(errin" broad and "eneral $o ers on the arbitrator* the NCM= Procedural Guidelines in the Conduct o( Voluntary Arbitration Proceedin"s s$eci(ically "rant to voluntary arbitrators the com$ulsory $o er to sub$oena itnesses and documents hen the relevancy o( the testimony and the materiality thereo( have been demonstrated to the arbitrators&

A vie has been e+$ressed that ;1ven assumin" its le"ality* the use o( sub$oena is not to be encoura"ed& Demands (or relevant in(ormation by either $arty should be honored ithout the (ormality o( a sub$oena&<

73& -hat should be the a$$roach o( the arbitrator in "ivin" ei"ht and credibility to the evidence $resented4

Noted Arbitrator Geor"e Cheney $ointed out that* in arrivin" at the truth in such case* an Arbitrator must consider hether con(lictin" statements run true or (alseE hat he ill note is the itnessesJ demeanor hile on the standE and that he ill credit or discredit testimony accordin" to his im$ression o( the itnesses veracity&

He also $ointed out that in determinin" here the $re$onderance o( evidence lies ith res$ect to any material $oint* the arbitrator ill into consideration hether the itness s$ea#s (rom (irst%hand in(ormation to hether the testimony is lar"ely based in hearsay or "ossi$&<

In summari.in"* Arbitrator Cheney stated that the duty o( the Arbitrator is sim$ly to determine the truth res$ectin" material matters in controversy as he believes it to be* based u$on a (ull and (air consideration o( the entire evidence* the ei"ht* i( any* to hich he honestly believes it to be entitled&

7@& In "ivin" ei"ht and credibility to testimony in dischar"e and disci$line cases* hat s$ecial considerations should be ta#en into account by the arbitrator4

In dischar"e and disci$line cases* i( there is evidence o( ill on the $art o( the accuser a"ainst the accused* the testimony o( the (ormer ill be sub)ect to doubt and care(ul scrutiny by the arbitrator&

In one case* Arbitrator ,hulman reco"ni.ed that an accused em$loyee has an incentive (or denyin" the char"e a"ainst him in that he stands immediately to "ain or lose in the case* and that normally there is no reason to su$$ose that a $lant $rotection man* (or e+am$le* ould un)usti(iably $ic# one em$loyee out o( the hundreds and accuse him o( an o((ense* althou"h in $articular cases the $lant $rotection man may be mista#en or in some cases even malicious& Arbitrator ,hulman declared that* i( there is no evidence o( ill ill to ard the accused on the $art o( t he accuser and i( there are no conclusion that the char"e is true can hardly be deemed im$ro$er&

In several decided American cases* one other (actor to be considered by the arbitrator in ei"hin" testimony in dischar"e and disci$line cases is the so%called code hich inhibits one member o( the or"ani.ation and (re!uently one member o( an unor"ani.ed or#in" (orce (rom testi(yin" a"ainst another&

79&

-hat is the value o( hearsay evidence in arbitration hearin"s4

Arbitrators "enerally admit such evidence* but !uali(y its rece$tion by in(ormin" the $arties that it is admitted only ;(or hat it is orth&<

In -alden vs& Teamasters case* the Court held that a unionJs (ailure to ob)ect to hearsay evidence in arbitration did not constitute a breach o( its duty o( (air re$resentation the court declared that5 An arbitration hearin" is not a court o( la and need not be conducted li#e one& Neither la yers nor strict adherence to )udicial rules o( evidence are necessary com$laints o( industrial $eace and stability M the ultimate "oals o( arbitration&

In many decided American cases* very little ei"ht is "iven to hearsay evidence* and it is e+ceedin"ly unli#ely that an arbitrator ill render a decision su$$orted by hearsay evidence alone& Then* too hearsay evidence ill be "iven little ei"ht i( contradicted by evidence hich has been sub)ected to cross%e+amination&

The rule on hearsay evidence li#e ise a$$lies to a((idavits& Ob)ections to its admission must be considered and the other $arty should be "iven the o$$ortunity to cross%e+amine the $ersons ma#in" the a((idavits&

7G&

-hat is the value o( circumstantial evidence in arbitration hearin"4

There are times hen arbitrators decide cases on the basis o( circumstantial evidence& Arbitrator Paul H& Herbert stated that the use o( circumstantial evidence does not eliminate in any sense the re!uirement that there must be clear and convincin" $roo( to establish that the o((ense char"ed as committed& Certainly* mere sus$icion is not enou"h to establish ron" doin"&

Moreover* as basic sa(e"uard* Arbitrator Claire V& Du(( em$hasi.ed that an arbitrator in usin" circumstantial evidence ;must e+ercise e+treme care so that by due deliberation and care(ul )ud"ment he may avoid ma#in" hasty or (alse deductions& I( the evidence $roducin" the chain o( circumstances $ointin" to "uilt is ea# and inconclusive* no $robability o( (act may be in(erred (rom the combined circumstances&

Circumstantial evidence* accordin" to Arbitrator Kose$h A& Ken#ins is o(ten (ar more $ersuasive than direct testimony* $articularly hen action in the nature o( a cons$iracy is involved& In /one ,tar ,teel Co& Case involvin" unauthori.ed or# sto$$a"e (ound that circumstantial evidence

made out a ;$rima (acie case< o( "uilt* leavin" a burden on each individual em$loyee to o((er evidence o( e+cuse Asuch as illnessB (or not re$ortin" (or or#&

The (ollo in" admissions* on the other hand* may be "iven si"ni(icant ei"ht5

% admission made by the "rievant in the $resence o( union re$resentatives durin" $re%arbitral "rievance hearin"s&

GrievantJs admission at the arbitration

% Admissions as#ed on by others and those that a$$ear in the record o( $rior $roceedin"s so as to $arta#e o( the nature o( )udicial admissions&

,OM1 AR=ITRATION ,TANDARD, IN CONTRACT INT1RPR1TATION

7?& -hat are some o( the standards hich an arbitrator may use as "uide in inter$retin" contract lan"ua"e4

In a $a$er $rovided by Mr& Tom Riley* Asian%American 'ree /abor Institute AAA'/IB Country Pro"ram Director* to the $artici$ants o( the Institute o( Grievance ,ettlement and Voluntary Arbitration* the (ollo in" standards in contract inter$retation based on a ,ection o( Ho Arbitration -or#s by 1l#ouri and 1l#ouri* ere summari.ed5

3& /an"ua"e hich is ;clear and unambi"uous<51ven hen the $arties themselves disa"ree on hat contract lan"ua"e means* the arbitrator may (ind #it to be clear and de(inite& Interested $arties are inclined to ma#e a clause mean hat they ant it to mean& The arbitrator brin"s a certain amount o( ob)ectivity to the $rocess&

@& ,$eci(ic versus "eneral lan"ua"e5-here contract lan"ua"e is s$eci(ic in some res$ects* it ill normally be held to su$ersede another more "eneral clause& ;,$eci(ic< means constitutin" or (allin" into a named cate"ory&

9& To e+$ress one thin" is to e+clude another5 To mention one item o( a "rou$ or class o( items* and not to mention others* may be construed to mean that others ere meant to be e+cluded&

G& -ords ill be )ud"ed by their conte+t5 The meanin" o( the ords or $hrases ill be )ud"ed by the conte+t in hich they a$$ear&

?& A"reement to be construed as a hole5Arbitrators normally ill hold that all $arts o( the contract have some meanin" or the $arties ould not have included them in the a"reement&

>& Normal and technical usa"e5-ords and $hrases ill be "iven their $o$ularly%acce$ted meanin" in $re(erence to some s$ecial meanin" hich one o( the $arties may try to "ive them& Arbitrators ill ta#e the meanin" customary in labor relations&

8& Intent o( the $arties5-here the contract is not a su((icient "uide* the arbitrator ill loo# beyond it to see i( he can determine the intent o( the $arties&

7&

/ist o( union or com$any demands submitted at ne"otiations&

6& Contract ne"otiations5The history o( ne"otiations* as evidenced by minutes or records* is im$ortant& The arbitrator may rely on oral evidence* i( he is convinced o( its accuracy&

3D&

,ettlement memoranda&

33& No consideration to com$romise o((ers5O((ers made in ne"otiation leadin" u$ to arbitration ill normally no be considered in arbitration& It is reco"ni.ed that $arties ill ma#e o((ers** loo#in" to ards a settlement* that mi"ht be less than they consider to be their strict contractual

ri"hts& AHere* ho ever* it must be determined that it is a com$romise o((er and not an admission that the case is really based on considerations other than those $ut (or ard in ne"otiationsB&

3@& Custom and $ast $ractice5;-hat the $arties do under a collective a"reement mi"ht be even more im$ortant than hat they say in it&<

39& The salient contract versus e+$ressed $rovisions5A ;salient< contract is one hich contains no e+$ress obli"ations to continue in (orce $ractices or or#in" conditions hich e+isted at the time that collective a"reements is si"ned&

It is reco"ni.ed that there is $ractical inability o( the $arties to deal (ully and conclusively ith all as$ects o( local or#in" conditions& The (ollo in" sets (orth ;"eneral $rinci$les and $rocedures hich e+$lain the status o( these matters and (urnish necessary "uide$osts to the $arties< and the board o( arbitrators5

3& There is reco"nition that an em$loyee does not have the ri"ht to have a or#in" condition established here it has not $reviously e+isted or to have an e+istin" condition chan"ed or eliminated e+ce$t to the e+tent that the e+istence o( the local or#in" condition th arts a$$lication o( a s$eci(ic a"reementJs $rovision&

@& That no local or#in" condition shall be e((ective to de$rive any em$loyee o( ri"hts under the a"reement&

9& That local or#in" conditions $rovidin" bene(its ;in e+cess o( or in addition to ;those in e((ect (or its term e+ce$t as chan"ed or eliminated by mutual a"reement or in accordance ith the (ourth "uide$ost&

G& That the com$any has the ri"ht to chan"e or eliminate a local or#in" condition i( mana"ementJs actions under the mana"ement clause chan"e or eliminate the basis (or the e+istence o( the local or#in" condition* thereby ma#in" its continuance unnecessary& =ut it has been held that in the e+ercise o( its mana"ement ri"hts* the com$any must observe the $rovisions o( the contract* includin" the local or#in" conditions section& Hence an action o( mana"ement ta#en $ursuant tot he mana"ement clause hich does not chan"e or eliminate the basis (or the e+istence o( the local or#in" condition cannot result in its chan"e or elimination&

?& That the establishment o( or a"reement on any local or#in" condition herea(ter hich chan"es or modi(ies any $rovisions o( the a"reement* e+ce$t to the e+tent a$$roved by to$ mana"ement and union o((icials* is barred&

>& That attem$ts to th art the develo$ment o( a $ractice* even i( unsuccess(ul* may $revent it (rom attainin" the status o( a local or#in" condition& As an e+am$le* it as held that $ersistent* thou"h lar"ely unsuccess(ul e((orts by su$ervisor to $revent em$loyees (rom ta#in" ash%u$ time $rior to shi(t end did not establish a viable $ractice $rotected by a local or#in" condition clause& ;/a+ity in en(orcin" a reasonable rule is not tantamount to the establishment o( a local or#in" condition&

3G& In inter$retin" the or#in" intent and a$$lication o( contractual $rovisions* arbitrators may be "uided by $ast $ractice under the contract& ;A $ractice is a reasonable uni(orm res$onse to a recurrin" situation over a substantial $eriod o( time* hich has been reco"ni.ed by the $arties im$licitly or e+$licitly as the $ro$er res$onse&<

The term $ractices usually re(er to local $ractices and or#in" conditions hich can vary considerably at di((erent $lants o( the same com$any& They are o(ten a customary ay* not necessarily the best ay o( handlin" a "iven $roblem& A method o( handlin" a $roblem cannot be considered a $ractice i( it is only one o( several ays o( doin" it&

The $ractice must be recurrin" and deal ith the same ty$e o( situation& It must have e+isted over a substantial $eriod o( time& The la+ en(orcement o( a rule may not constitute a valid $ractice since there may not be acce$tance* either im$licit or e+$licit& /a+ en(orcement mi"ht nonetheless be used in some cases to build $roo( o( discriminatory or ine!uitable treatment&

Generally* the burden o( $roo( is on the union to sho that the $ractice in (act does e+ist& This is (re!uently di((icult to do* since the union may not have very com$lete records and the com$any is able to "ive evidence o( a di((erent $ractice&

I( the $ractice is unclear or con(lictin"* the arbitrator is not li#ely to $lace much ei"ht on either ay&

7>&

Ho

im$ortant are $ast $ractices in collective bar"ainin"4

Past $ractices have made the (ollo in" contributions to the develo$ment o( industrial sel(% "overnment5

3&

They can be an aid to the inter$retation o( ambi"uous contract lan"ua"e&

@&

1ven here contract lan"ua"e is clear an a"reed $ractice may modi(y it&

9& Past $ractice is im$ortant in de(inin" )obs and classi(ication lines hich may a((ect layo((s* a"es and $romotions&

G& Under some circumstances a lon" history o( a $ractice indicates a mutual a"reement even thou"h the contract is silent&

?& A $ast $ractice is not bindin" and cannot be en(orced hen it is clearly contrary to the contract&

The validity o( a $ast $ractice ar"ument can only be determined by com$lete #no led"e o( the details o( the individual a"reement in e((ect in the $lant or industry&

78& -hat are the other s$ecial considerations that must "uide arbitrators in inter$retin" contract lan"ua"e4

3& Inter$retation in the li"ht o( the la 5-hen t o inter$retations are $ossible* one ma#in" the a"reement la (ul and the other ma#in" it la (ul* the (ormer may be used on the $resum$tion that the $arties intended to have a valid )ud"ment o( a reasonable man&<

@& Reason and e!uity5-here lan"ua"e is ambi"uous arbitrators usually ill strive to a$$ly it in a manner that is reasonable and e!uitable to both $arties& As one arbitrator $ut it5 the arbitrator should ; loo# at the lan"ua"e in the li"ht o( e+$erience and choose that course hich does the least violence to the )ud"ment o( a reasonable man&<

9& Avoidin" harsh* absurd or nonsensical results5-hen one inter$retation ould brin" )ust and reasonable results and another ould lead to harsh* absurd or non%sensical results* the (ormer ill be used&

G& 'or(eitures or $enalties5=oth arbitrators and courts are reluctant to assess a $enalty or (or(eiture i( another inter$retation is reasonably $ossible& On the other hand* many arbitrators are inclined to rule that some ;remedy< Aincludin" bac# $ay and even interest in some casesB* is a$$ro$riate in certain ty$es o( cases& The !uestion o( remedies is one o( the most controversial (or arbitrators* unions and em$loyers&

?& 1+$erience and trainin" o( ne"otiators5Arbitrators are less inclined to a$$ly a strict construction o( lan"ua"e here the ne"otiators are ine+$erienced& The assum$tion is that the rules and $ractices ere better understood by the $arties than the ords by hich they tried to e+$ress such $ractices& This liberal attitude ould not be ta#en ith e+$erienced ne"otiators ho ere #no n to have scrutini.ed the lan"ua"e closely&

>& Inter$retation a"ainst selectin" the lan"ua"e5-hen no other rule or standard a$$lies* arbitrators sometimes ill rule a"ainst the $arty hich dra(ted the lan"ua"e& The reason is that the dra(tin" $arty can more easily $revent doubts as to its meanin"&

The $arty hose inter$retation o( ambi"uous lan"ua"e is contracted by an established $ractice has the obli"ation in ne"otiations o( clari(yin" the ambi"uity in its (avor i( the $ractice is to be discontinued or chan"ed&<

AR=ITRATION ,TANDARD, IN DI,CIP/IN1 CA,1,

77& -hat standards may serve as "uides to arbitrator in arbitratin" disci$line or dischar"e cases4

The (ollo in" standards in the arbitration o( disci$line cases have been su""ested5

3&

Prior #no led"e by the em$loyee o( the rules and $enalties (or violation

3& (ore#no led"e or (ore arnin" $ro$erly have been "iven orally by mana"ement or in ritin" throu"h the medium o( ty$ed or $rinted sheets or boo#s o( sho$ rules and $enalties (or violation thereo(

@& there must have been actual oral or ritten communication o( the rules and $enalties to the em$loyees& There are* ho ever* certain o((enses such as insubordination* comin" to or# into+icated* drin#in" into+icatin" bevera"es on the )ob* the(t o( $ro$erty o( the com$any or o( (ello em$loyees hich are so serious that any em$loyee in the industrial society may $ro$erly be e+$ected to #no already that such conduct is o((ensive and heavily $unishable

9& In the absence o( any contractual $rohibition or restriction** the com$any has the ri"ht unilaterally to $romul"ate reasonable rules and "ive reasonable orders* and same need not have been ne"otiated ith the union&

@& Reasonableness o( the com$any rules in relation to the orderly* e((icient and sa(e o$eration o( com$anyJs business&

Under this standard* i( an em$loyee believes that said rule or order is unreasonable* he must nevertheless obey the same* in hich case* he may (ile a "rievance* unless he sincerely (eels that to obey the rule or order ould seriously and immediately )eo$ardi.e his $ersonal sa(ety andIor inte"rity& Given a (irm (indin" to the latter e((ect* the em$loyee may be said to said to have had )usti(ication (or his disobedience&

9&

1m$loyeeJs ;Day in Court< Princi$le&

Under this standard* it becomes a duty on the $art o( mana"ement that be(ore administerin" disci$line to an em$loyee* there should be an honest e((ort to investi"ate hether the em$loyee did in (act violate or disobey a rule or order o( the com$any&

The com$anyJs investi"ation must normally be made be(ore its disci$linary decision is made& I( the com$any (ails to do so* its (ailure may not normally be e+cused on the "round that the em$loyee ill "et his day in court throu"h the "rievance $rocedure a(ter the e+action o( disci$line& =y that time has usually been too much hardenin" o( $ositions&

There may* o( course* be circumstances under hich mana"ement must react immediately to the em$loyeesJs behavior& In such cases* the normally $ro$er action is to sus$end the em$loyee $endin" investi"ation* ith the understandin" that AaB the (inal disci$linary decision ill be made a(ter the investi"ation and AbB i( the em$loyee is (ound innocent a(ter the investi"ation* he ill be restored to his )ob ith $ay time lost&

The com$anyJs investi"ation must also include an in!uiry into $ossible )usti(ication (or alle"ed rule violation&

G&

Re!uirement o( (air and ob)ective investi"ation&

At such investi"ation* the mana"ement o((icial may both ;$rosecutor< and ;)ud"e< but he should not also be a itness a"ainst the em$loyee& It is essential (or some hi"her* detached mana"ement o((icial to assume and conscientiously $er(orm the )udicial role** "ivin" the commonly acce$ted meanin" to that term in his attitude and conduct&

?&

Re!uirement o( substantial evidence or $roo( that the em$loyee as "uilty as char"ed&

It is not re!uired that the evidence be $re$onderant* conclusive or beyond reasonable doubt& =ut evidence must be truly substantial and not (limsy& The mana"ement )ud"e should actively search out itnesses and evidence and not )ust $assively ta#e hat $artici$ants ot ;volunteer< itnesses tell him&

>&

Re!uirement o( consistent and non%discriminatory a$$lication o( rules&

A (indin" o( discrimination arrants ne"otiation or modi(ication o( the disci$line im$osed& I( the com$any has been la+ed in en(orcin" its rules and decides hence(orth to a$$ly them vi"orously* the com$any may avoid a (indin" o( discrimination by tellin" all em$loyees be(orehand o( its intent to en(orce herea(ter all ritten rules&

8& Re!uirement o( reasonableness and a$$ro$riateness o( the $enalty de$endin" on the seriousness o( the em$loyeesJ $roven o((ense and the em$loyment record o( the em$loyee&

A trivial o((ense does not merit harsh disci$line unless the em$loyee has $ro$erly been (ound "uilty o( the same or other o((enses a number o( times in the $ast& There is no rule as to hat

number o( $revious o((enses constitutes a ;"ood ;*<(air< or a ;bad< record& Reasonable )ud"ment thereon must be used&

An em$loyeeJs record o( various o((ense should not be used to discover hether he as "uilty o( the immediate or latest o((ense& The only $ro$er use o( his record is to hel$ determine the severity o( disci$line once he has $ro$erly been (ound "uilty o( the immediate o((ense&

76&

To hat e+tent may arbitrators revie the $enalties im$osed by mana"ement4

One vie maintains that the determination o( the $enalty (or misconduct is $ro$erly a (unction o( mana"ement and that an arbitrator should hesitate to substitute his )ud"ment and discretion (or that o( mana"ement& 1laboratin" this vie * Arbitrator -hitley P& McCoy states5

-here an em$loyee has violated a rule or en"a"ed in conduct meritin" disci$linary action* it is $rimarily the (unction o( mana"ement to decide u$on the $ro$er $enalty& I( mana"ement acts in "ood (aith u$on a (air investi"ation and (i+es a $enalty not inconsistent ith that im$osed in other li#e cases* an arbitrator should not disturb it& The mere (act that mana"ement has im$osed a some hat di((erent $enalty or a some hat more severe $enalty than the arbitrator ould have* i( he had the decision to ma#e ori"inally* is no )usti(ication (or chan"in" it& The minds o( e!ually reasonable men di((er& A consideration hich ould ei"h heavily ith one man seem o( less im$ortance to another& A circumstance hich hi"hly a""ravates an o((ense in one manJs eyes may be only sli"ht a""ravation another& I( an arbitrator could substitute his )ud"ment and discretion (or the )ud"ment and discretion honestly e+ercised by mana"ement* then the (unctions o( mana"ement ould have been abdicated* and unions ould ta#e every case to arbitration& The result ould be as intolerable to em$loyees as to mana"ement& The only circumstances under hich a $enalty im$osed by mana"ement can be ri"ht(ully set aside by an arbitrator are those here discrimination* un(airness* or ca$ricious and arbitrary action are $roved M in other ords* here there has been abuse o( discretion&

The ;unreasonable* ca$ricious or arbitrary action< standard o( revie has been re$eatedly e+$ressed by many other arbitrators in decided cases cited in the 1l#ouri and 1l#ouri&

A less restricted role o( the arbitrator in revie in" disci$line im$osed under a"reements re!uirin" cause is e+$ressed by Arbitrator Henry H& Platt5

It is ordinarily the (unction o( an Arbitrator in inter$retin" a contract $rovision hich re!uires ;su((icient cause< as a condition $recedent to dischar"e not only to determine hether the em$loyee involve is "uilty o( ron"%doin" and* i( so* to con(irm the em$loyerJs but also to sa(e"uard the interests o( the dischar"ed em$loyee by ma#in" reasonably sure that the causes (or dischar"e ere )ust and e!uitable and such as ould a$$eal to reasonable and (air%minded $ersons as arrantin" dischar"e& To be sure* no standards e+ist to aid an arbitrator in (indin" a conclusive ans er to such a !uestion and* there(ore* $erha$s the best he can do is to decide hat reasonable man* mind(ul o( the habits and custom o( industrial li(e and o( the standards o( )ustice and (air dealin" $revalent in the community* ou"ht to have done under similar circumstances and in the li"ht to decide hether the conduct o( the dischar"ed em$loyee as de(ensible and the disci$linary $enalty )ust&

'inally* it should be reco"ni.ed that hile arbitration do not li"htly inter(ere ith mana"ement decisions in dischar"e and disci$line matters* the arbitrators are e+$ected to act (irmly hen mana"ement decisions are (ound to be un)ust and unreasonable under all the circumstances& Arbitrator Charles =& ,$auldin" says5

Three ans ers to this line o( ar"ument seem a$$ro$riate& The (irst is that arbitrators very (re!uently do ste$ in and u$set the decisions o( mana"ement& The second is that* i( arbitrators could not do so* arbitration ould be o( little im$ort* since the )ud"ment o( mana"ement ould in so many cases constitute the (inal verdict& 'inally* the more care(ul statement o( the $rinci$le ould $robably run to the e((ect that here the contract uses such terms as dischar"e (or ;cause< or (or ;"ood cause< or (or ;)usti(iable cause< an arbitrator ill not li"htly u$set a decision reached by com$etent care(ul mana"ement hich acts in the (ull li"ht o( all the (acts* and ithout any evidence o( bias* haste* or lac# o( emotional balance& 1ven under these conditions* i( the decision is such as to shoc# the sense o( )ustice o( ordinary reasonable men* e sus$ect that arbitrators our have a duty to inter(ere& ,ince the acts o( mana"ement in this case do shoc# our sense o( )ustice* and since they do seem to have occurred in a situation o( emotional tension* in haste* and ithout a very care(ul ei"hin" o( the (acts* e (ind ourselves inevitably driven to overthro the decision o( this mana"ement&

6D&

-hat are the arbitral remedies in dischar"e and disci$line cases4

The more common remedies utili.ed by arbitrators in settin" aside mana"erial actions in dischar"e and disci$line cases include the (ollo in"5

a& i( a $enalty o( dischar"e is u$set throu"h arbitration* the a ard o(ten ill order reinstatement either ith bac# $ay* ithout bac# $ay* or ith $artial bac# $ay* and o(ten ill

(urther order that other ri"hts and $rivile"es shall remain unim$airedE or the dischar"e maybe commuted to sus$ension (or a s$eci(ic $eriod* or even to a reduced $enalty o( only a re$rimand or arnin"E

b& -here a $enalty o( sus$ension assessed mana"ement is u$set throu"h arbitration* the a ard ill either void the sus$ension com$letely Asometimes substitutin" a re$rimand or arnin"B* or ill sim$ly reduce the len"th o( the time the em$loyee is deemed sus$ended%in either event bac# $ay ill be ordered consistent ith the shortened or eliminated $eriod o( sus$ension &

The remedy may* ho ever* be $rovided in the ,ubmission a"reement o( the $arties (rom the Arbitrator cannot dictate&

63&

-hat are some violations in arbitral remedies that are less (re!uently used4

a& /oss o( seniority& ,ome em$loyees have been ordered reinstated on the basis that they not be credited ith any seniority (or the $eriod bet een dischar"e and reinstatement& /oss o( some seniority that had accrued $rior to the dischar"e is also a $ossibility&

b& /oss o( other bene(its under the a"reement& In denyin" seniority credit (or the $eriod bet een dischar"e and reinstatement* arbitrators o(ten $rohibit the accumulation o( the other a"reement%$rovided bene(its durin" said $eriod&

c& Probation or (inal arnin"& ,ome dischar"ed em$loyees have been reinstated on a $robation basis Athe $robation conditions varyin" (rom a ard to a ard and the $robationary $eriods o(ten ran"in" (rom 3 to 3@ monthsB* or ith a (inal arnin" that any re$etition o( the o((ense ill )usti(y immediate dischar"e&

d& Reinstatement conditioned u$on some s$ecial act or $romise by em$loyee& Reinstatement has been ordered on the condition that the em$loyee resi"ns his outside )ob* that he (urnishes an indemnity bond re!uired by the em$loyer* that he si"ns an a"reement by hich he $romises to a$$ly and com$ly conscientiously ith com$any sa(ety rules* that he acce$ts counselin" (rom his $astor or some com$etent social a"ency* or that the em$loyee com$lies ith some other s$eci(ied condition&

e& -ritten aiver re!uired& -here the collective a"reement ar"uably mi"ht have re!uired bac# in the event o( reinstatement a(ter dischar"e* a condition to reinstatement as im$osed in the (orm o( a re!uirement that the em$loyee a"ree in ritin" to aive bac# $ay&

,OM1 ,TANDARD, IN AR=ITRATION O' INT1R1,T DI,PUT1,

6@& dis$utes4

-hat are some standards that serve as "uides in the arbitration o( interest

Arbitrators o(ten use some o( the (ollo in" standards in arbitratin" interest dis$utes5 3B $revailin" $ractice* @B cost o( livin"* 9B livin" a"e* GB ability to $ay* ?B com$etition* >B a"e $attern* 8B $roductivity* 7B ta#e%home $ay* 6B $ast $ractice and bar"ainin" history

69&

-hat should "uide the arbitrators in "ivin" e((ect to the $revailin" $ractice4

Arbitrators usually rely u$on $recedent* ado$tin" (or the $arties that hich has been ado$ted by other $arties throu"h collective bar"ainin" or* sometimes* as a result o( arbitration a ards& An a ard based u$on the a$$lication o( these standards is not li#ely to be too (ar (rom the e+$ectations o( the $arties* since most $ersons in the business community have lon" acce$ted the idea that there should be no basic ine!ualities amon" com$arable individuals or "rou$s&

6G& $ractice4

-hat are some limitations on the use o( com$arative standards based on $revailin"

A$$lication o( the $revailin" $ractice standard may involve di((iculties& 'irst* hat is to be the basis o( com$arison4 Is it the entire industry* the $articular industry ithin the area* or the industry in "eneral ithin the area4 A(ter the !uestion is decided* hat $ractice should be determined4 'inally* ho to a$$ly the $ractice to the $articular com$any involved in the case should also be determined4

In many cases* stron" reasons rest (or the case o( $revailin" $ractice o( the same class o( em$loyees ithin the locality or area& The res$onsibility o( the arbitrator is to determine the a$$ro$riate basis (or the com$arison (rom the (acts and circumstances o( the case&

6?& I( a $revailin" $ractice has already been determined* ho should the arbitrator a$$ly the same in a "iven case4

It ould be di((icult to a$$ly the standard i( the issue does not involve the (i+in" o( the a"e rates li#e the number o( $aid holidays& Ho ever* the a$$lication o( $revailin" a"e rates is not so sim$le and arbitrators o(ten resort to ;minor< standards to )usti(y hy the em$loyer should not $ay the $revailin" rates& These reasons include such matters as relative "eneral di((erentials o( s#ill and trainin"* res$onsibility* steadiness o( em$loyment* ha.ards o( the em$loyment* (rin"e bene(its* established "eo"ra$hical di((erentials and a"e leadershi$&

6>& dis$utes4

-hen and ho

do arbitrators use cost o( livin" standards in arbitratin" interest

Durin" $eriods characteri.ed by $ronounced chan"es in livin" costs* the use o( the standard measured in terms o( the Consumer Price Inde+ ACPIB ma#es it $ossible to measure chan"es in retail costs o( services and commodities and the resultin" e((ect u$on the $urchasin" $o er o( the income o( the or#ers& The CPI re(lects the cost o( livin" as o( a date about si+ ee#s $rior to its issuance or $ublication&

68&

-hat is the livin"% a"e standard4

The livin"% a"e standard is related to* but not the same as* the cost%o(%livin" standard& The livin"% a"e standard is based u$on the idea that the standard o( livin" o( or#ers should be raised to the hi"hest level $ossible* but more realistic basis (or it is the belie( that ;em$loyees are entitled to a"es and salaries su((icient to enable them* throu"h the e+ercise o( thri(t and reasonable economy* to maintain themselves and (amilies in decency and com(ort and to ma#e reasonable $rovision (or old a"e&<

67& -hat is the ability%to%$ay standard4 To hat e+tent should it be a$$lied in the arbitration o( interest dis$utes4

Althou"h it is a "enerally reco"ni.ed $rinci$le that lar"e $ro(its do not alone )usti(y demands (or a"es substantially hi"her than those hich are standard ithin an industry hile small $ro(its

do not )usti(y the $ayment o( substandard a"es* the ability%to%$ay criterion is o( "reat im$ortance in the determination o( a"e rates and other contract bene(its&

1m$loyers ho have $leaded inability to $ay have been held to have the burden o( $roducin" su((icient evidence to su$$ort the $lea& In a number o( decided American cases* it has been held that the alle"ed inability must be more than ;s$eculative< and (actors to $roduce su((icient evidence ill result in a re)ection o( the $lea& The $ayment o( reasonable dividends to stoc#holders and o( reasonable salaries to to$ mana"ement has been held to render invalid a $lea o( inability to $ay& Arbitrators should $rovide any sa(e"uards needed to $rotect the con(idential nature o( such evidences&

66& -hen is the com$etitive nature o( the business standard relevant in arbitratin" interest dis$utes4

Fuotin" a lon" line o( decided cases* 1l#ouri and 1l#ouri e+$lains that a (actor hich must be "iven consideration in interest arbitration is the com$etitive nature o( the em$loyerJs business& In some res$ect this is related to the ability%to%$ay standard& In other res$ect it is related to the $revailin"%$rice standard& 'or these reasons it is "enerally not considered as an inde$endent standard& -here* ho ever* an em$loyer is en"a"ed in a hi"hly com$etitive business or is (aced ith s$ecial com$etitive $roblems* the arbitrator may s$eci(ically $oint out the com$etitive nature o( the em$loyerJs business as a (actor to be "iven s$ecial consideration in settin" contract terms Asometimes even )usti(yin" a a"e reductionB&

3DD&

-hat are ; a"e $atterns< as standards in arbitration o( interest dis$utes4

The ;$attern< may be de(ined as a $articular #ind o( solution o( collective bar"ainin" issues hich has been used on a ide enou"h scale to be distinctly identi(ied& The $attern standard is obviously related to the $revailin"%$ractice standard and could reasonably be considered merely as one o( its as$ects& Ho ever* it is o(ten s$o#en o( as i( it ere a distinct criterion&

A ;$attern< in a"e arbitrations is o(ten stated in terms o( a s$eci(ic number o( cents $er hour* or it may be stated as a $ercenta"e a"e increase& 'or instance* the $attern standard ould reco"ni.e that here com$anies or industries A* =* and C have "ranted several a"e increase o( 3D cents $er hour* related com$any or industry D should "rant a 3D cent increase also& In the a$$lication o( this standard* stress is $laced u$on the "rantin" o( the same number* amount or $ercenta"e o( increase "ranted by others* rather than "rantin" o( the same total a"e that is $aid by com$arable em$loyers&

3D3&

Ho

do arbitrators a$$ly $roductivity standards in a"e dis$ute4

The a$$lication o( $roductivity standards $roceeds (rom the reco"nition that there is a close relationshi$ bet een the "eneral level o( $roductivity and the "eneral level o( a"es and that both an increase in a"e rates and a reduction in hours may be arranted by increased $roductivity measured in terms o( added out$ut $er man%hour&

Increases in $roductivity can relatively result in decreased a"es* decreased $rices* increased $ro(its* or some combinations o( the three& I( the increase in out$ut $er man%hour is due to "reater e((ort and to "reater s#ill* there ould a$$ear to be no doubt that the "ain should accrue to the bene(it o( the em$loyees& =ut i( the increase is the result o( technolo"ical $ro"ress or better mana"ement* several considerations must be ta#en into account&

3D@& -hen is $ast $ractice and bar"ainin" history o( s$ecial si"ni(icance in arbitration o( interest dis$utes4

Arbitrator Clar# 2err "ave im$ortance to the standard hen the $arties are ne"otiatin" their contract (or the (irst time& He said that the arbitrator considers $ast $ractice a $rimary (actor& It is standard (orm to incor$orate $ast conditions into collective bar"ainin" contracts* hether these contracts are develo$ed by ne"otiation or arbitration& The (act o( unioni.ation creates no basis (or the ithdra al o( conditions $reviously in e((ect& I( they ere )usti(ied be(ore* they remain )usti(ied a(ter the event o( union a((iliation& It is almost a+iomatic that the e+istin" conditions should be $er$etuated& ,ome contracts even blan#et them in throu"h a "eneral ;catch%all< clause&

AR=ITRATION A-ARDID1CI,ION

3D9&

Ho

is A ard distin"uished (rom an O$inion4

The a ard is the arbitratorJs decision o( the case& O(ten the arbitrator accom$anies his a ard ith a ritten o$inion statin" the reasons (or the a ard& Under e+istin" la s and $rocedures* the a ard must state in clear* concise and de(inite terms the (acts and the basis u$on hich the a ard is rendered&

In cases involvin" monetary claim* the a ard must s$eci(y the amount "ranted and the (ormula used in the com$utation&

The a ard must be si"ned by the arbitrator& I( rendered by arbitration boards* it must be si"ned by all the members here a unanimous decision is re!uired* other ise* it must be si"ned by at least a ma)ority unless the ar"ument $ermits the issuance o( the a ard by the neutral alone&

3DG&

-hat are the elements o( a "ood Decision4

The (ollo in" essential elements ma#e u$ the (ormat o( a "ood Decision5

3& 1ssential $reliminary matters li#e ho are the $arties* here and hen the hearin" as held* ho a$$eared (or each $arty* ho ere the itnesses* hether brie(s ere (iled and i( so* hen*

@& arbitratorE

,tatement o( the issue* hether sti$ulated by the $arties or as determined by the

9&

Contract clauses that bear u$on the issuesE

G&

=ac#"round o( the dis$ute* meanin" the (acts that led to the "rievanceE

?&

Position o( the $artiesE

>& ArbitratorJs discussions o( the $ositions as they a$$ly to the bac#"round and relevant contract clauses* "ivin" his or her considered conclusion on each ar"ument made and the reasons (or itE

8& The a ard* statin" hat ill ha$$en to the "rievance* hether sustained or denied* and* i( the (ormer* hat ill be the remedy&

3D?&

-hat are some ;ti$s< in ritin" a Decision4

Atty& Rosa Maria =autista in the same $a$er $resented at the Institute on Grievance ,ettlement and Voluntary Arbitration* shared the (ollo in" ti$s in ritin" a decision5

3& Ma#e your a ard a master$iece& It should be brie(* clear and direct to the $oint& 1very ord and sentence count&

@& 1numerate your (acts chronolo"ically based on the sti$ulation o( the (acts by the $arties& =e ob)ective in ritin" the (acts& No o$inion or conclusion should a$$ear as (acts&

9& Re(er to the ,ubmission A"reement and attach it as Anne+ ;A< since this is the basis o( your authority&

G& Have the ,u$reme Court in mind hen you rite your a ard& Remember that the Kustices are very busy and that i( your a ard is t enty $a"es or more* they may not have the time to read your a ard (ully&

?& I( you rite in 1n"lish* be sure that your "rammar is correct& Other ise* you may "o do n in history Aseldom do you have a chance to have your or# elevated to the ,u$reme CourtB as the arbitrator hose verbs and tenses do not a"ree ith one another& Continue to im$rove yoursel(& Gro in the la * in 1n"lish* and in style& Use short sentences& I( you can still delete a sentence or a ord* your a ard is still not ti"ht and concise&

>& ,tate the issueIs directly and sim$ly& Avoid verbosity& Phrase and re$hrase the issueIs until an ordinary layman can read your statements and not be con(used& 'ormulate the issue or issues in the (orm o( !uestions* i( $ossible&

8& ,tate your decision by ans erin" the !uestion or !uestions in either yes or no& Then tac#le the reasons one by one& Cite the s$eci(ic $rovisions o( the labor la * or the C=A* or

the rules and re"ulations o( the com$any* or the $articular $olicy* or $ractice& Remember that the intent o( the $arties Anot your o nB is the one that matters&

7& =e sure that your a ard is s$eci(ic enou"h to be understood and en(orced& I( your a ard or decision ill )ust add to the conclusion* re%dra(t it* havin" in mind the )ustices o( the ,u$reme Court ho ill read it& -hile your a ard or decision may not be !uestioned on certiorari* rite it in such a manner that it can survive a $etition (or certiorari& It should be more than one that you can de(end throu"h all the le"al attac#s o( the learned )ustices* and most im$ortant o( all* the admonition o( your o n conscience&

6& 0our a ard should $romote not only industrial $eace but your o n $eace o( mind& It should achieve the hi"hest ladder o( im$artiality and )ustice* other ise there is no use bein" a voluntary arbitrator because the $arties ill never "et you a"ain as their arbitrator&

3D& The shorter your a ard* the less mista#es you commit& =ut be sure it is com$lete and can stand alone and needs nothin" else besides&

3D>& -hat is the $eriod re!uired (or a voluntary arbitrator or $anel o( voluntary arbitrators to render an a ard or decision4

Unless the $arties a"ree other ise* it shall be mandatory (or the Voluntary Arbitrator or $anel o( Voluntary Arbitrators to render an a ard or decision ithin t enty A@DB calendar days (rom the date o( submission o( the dis$ute to voluntary arbitration AArt& @>@%A* /abor CodeB&

In cases involvin" unresolved a"e distortion issues* the $eriod to render an a ard or decision should be ithin ten A3DB calendar days (rom the time the case as re(erred to voluntary arbitration* unless a"reed other ise by the $arties in ritin" AArt& 3@G* /abor code as amended by R&A& >8@8B&

3D8&

May the voluntary arbitrator modi(y his a ard* by motion or motu $ro$io4

No* the ,u$reme Court has cate"orically ruled on this issue in the case o( Consolidated =an# and trust Com$any A,olidban#B Inc& vs& =ureau o( /abor relations* et& al&* G&R& No& >G6>@* October 3?* 3677& In this case* the voluntary arbitrator did more than )usti(y the ori"inal a ard5 he modi(ied it& The Hi"h Court reminded the $arties that ;the arbitration la or )uris$rudence on

the matter is e+$licit in its stand a"ainst revocation and amendment o( the submission a"reement and the arbitration a ard once such has been made& The rationale behind this is that5 ;An a ard should be re"arded as the )ud"ment o( a court o( last resort so that all reasonable $resum$tion should be ascertained in its (avor and easy mode o( obtainin" )ustice* ould be merely an unnecessary ste$ in the course o( liti"ation* causin" delay and e+$enses* but not (inally settlin" anythin"& Not ithstandin" the natural reluctance o( the courts to inter(ere ith matters determined by the arbitrators they ill do so in $ro$er cases here the la ordains them AArbitration* Man"uiat* citin" U&,& vs& Geason 38? U, ?77B&

In the interest o( )ustice and industrial $eace* ho ever* the consistent stand o( the National Conciliation and Mediation =oard has been that voluntary arbitrator may modi(y their ori"inal a ards or decisions but only to correct ty$o"ra$hical or harmless errors that are $atently obvious on the (ace o( the a ard or decision& They may not* ho ever* introduce a substantial amendment to their a ard or decision in the "uise o( correctin" a harmless or ty$o"ra$hical error&

3D7&

Is the decision o( a voluntary arbitrator a$$ealable4

No* the decision is (inal* una$$ealable and e+ecutory a(ter ten A3DB calendar days (rom the recei$t o( the co$y o( the a ard or decision by the $arties& A Article @>@%A* /abor Code o( the Phili$$ines* as amended by re$ublic Act >83?B

Ho ever* in the cases o( Oceanic =ic Division A''-B vs& Romero* G&R& No& /%G976D* Kuly 3>* 367G ,CRA 96@ and MantradeI'MMC Division 1m$loyer and -or#ers Union vs& =acun"an* G&R& No& /%G7G98* ,e$tember 9D* 367>* 3GG ,CRA ?3D* the ,u$reme Court said that there are e+ce$tions to the rule and these are5

3& @& 9& G& ?&

ant o( )urisdiction "rave abuse o( discretion violation o( due $rocess denial o( substantive )ustice erroneous inter$retation o( the la

In these instances* the Court may revie certiorari&

the ArbitratorJs decision in a s$ecial civil action o(

3D6&

Are arbitrators bound to (ollo

le"al )uris$rudence in renderin" an a ard4

A voluntary arbitrator is neither le"ally normally bound by hat another arbitrator has ruled in a $revious case& There is nothin" in the /abor Code that says so& =ut here there is a similarity o( the $arties* the contract and the issues* the $resent arbitrator ould be ell advised to ta#e a lon" and care(ul loo# at the earlier decision& I( the latter is sound* it ould not hurt to (ollo its $recedent* as other ise* chaos and con(usion ould result (rom the con(lictin" rulin"s on the same issue bet een the same $arties and arisin" out o( the same contract&

On this matter* an American Arbitrator* Maurice H& MerrillJs statement is very relevant5 ;As to arbitral decisions rendered under other contracts bet een $arties not related to those in the case at hand* use(ulness de$ends u$on similarity o( the terms and o( the situations to hich they are to be a$$lied& They must be ei"hed and a$$raised* not only in res$ect to these characteristics* but also ith re"ard to the soundness o( the $rinci$les u$on hich they $roceed& Certainly* an arbitrator may be aided in (ormulatin" his o n conclusions by #no led"e o( ho other men have solved similar $roblems& He ou"ht not to arro"ate as his o n s$ecial virtue the isdom and )ustice essential to sound decision& In at least t o instances in recent months I have (ound by investi"ation that a stron" current o( arbitral decision had overborne my (irst im$ression o( the im$lications o( $articular lan"ua"e& To yield to this ;common sense o( most<* es$ecially as* on e+amination* the reason on hich it as based carried $lausibility* as neither to evade my res$onsibility nor to sacri(ice my intellectual inte"rity& Contrary ise* it reduced discriminatory a$$lication o( similar $rovisions& It enabled me to ma#e use o( the isdom o( others ho or# in the same (ield&<

VO/UNTAR0 AR=ITRATION CO,T AND ,P1CIA/ VO/UNTAR0 AR=ITRATION 'UND

33D& -hat are the res$onsibilities o( the $arties in the $ayment o( the cost o( voluntary arbitration4

The $arties to a collective bar"ainin" a"reement shall $rovide therein a $ro$ortionate sharin" scheme to $ay the cost o( voluntary arbitration* includin" the voluntary arbitratorJs (ee&

Unless the $arties a"ree other ise* the cost o( voluntary arbitration $roceedin"s and voluntary arbitratorJs (ees shall be shared e!ually by the $arties out o( the (unds that they may set aside (or the $ur$ose* under their collective a"reement&

333&

-hat are the (actors to be considered in determinin" the (ee o( voluntaryarbitrators4

The (i+in" o( the (ee o( voluntary arbitrator or $anel o( voluntary arbitrators* hether shouldered holly by the $arties or subsidi.ed by the ,$ecial Voluntary Arbitration 'und* shall ta#e into account the (ollo in" (actors5

a&Nature o( the case b& Time consumed in hearin" the case c& Pro(ession standin" o( the voluntary arbitrator d& Ca$acity to $ay o( the $artiesE and e&'ees $rovided (or in the Revised Rules o( Court

33@&

Are there "overnment "uidelines in (i+in" voluntary arbitratorJs (ee4

In the absence o( any a"reement (i+in" the (ee o( the voluntary arbitrator or $anel o( arbitrators* the $arties and the voluntary arbitrator may use the (ollo in" schedule o( (ees a$$roved by the TVAAC (or subsidy $ur$oses* and re(erence "uide5

a& Inter$retation or im$lementation o( C=A P?*DDD&DD

b& Inter$retation or en(orcement o( com$any dismissalItermination

$ersonnel P

$oliciesIsus$ension and ?*DDD&DD

c&

Inter$retation or im$lementation o( $roductivity incentive a"reement P 3D*DDD&DD

339& May an arbitrator char"e (ees i( the case is ithdra n a(ter he has been selected and a date (or hearin" is set4

The arbitrator is $ermitted to char"e not only $er diem (ee but also other (ees li#e cancellation* $ost$onement* reschedulin" or administrative (ees&

33G& Is there a (und $rovided by the "overnment to subsidi.e the cost o( voluntary arbitration4

0es* section 99 A(B o( re$ublic Act >83? $rovides (or a ,$ecial Voluntary Arbitration 'und A,VA'B hich ill subsidi.e the cost o( voluntary arbitration includin" the arbitratorJs (ees* and such other related $ur$oses to $romote and develo$ voluntary arbitration& The =oard shall administer the ,VA' in accordance ith the "uidelines it may ado$t u$on the recommendation o( the Tri$artite Voluntary Arbitration Advisory Council* hich "uidelines shall be sub)ect to the a$$roval o( the ,ecretary o( labor and 1m$loyment&

33?&

Ho

is the "overnment subsidy involvin" voluntary arbitration raised4

Continuin" (unds (or this $ur$ose ta#es the nature o( an amount o( (i(teen million $esos AP3?*DDD*DDDB in the General A$$ro$riations Act&

In addition* the =ureau o( /abor relations or the re"ional O((ices o( the De$artment o( /abor and 1m$loyment shall assess em$loyer* (or every C=A re"istration (ee o( not less than one thousand $esos AP3*DDD&DDB (or the e((ective and e((icient administration o( the voluntary arbitration $ro"ram& The amount collected shall accrue to the ,VA'&

33>&

Ho

my one avail o( the "overnment subsidy in voluntary arbitration4

The TVAACJs resolution No& @* series o( 366@ sets the (ollo in" "uidelines (or the availment o( the voluntary arbitration subsidy5

I& Covera"e % Parties to a Collective =ar"ainin" A"reement are !uali(ied to avail o( the voluntary arbitration subsidy

II& Cases to be ,ubsidi.ed % subsidi.ed are as (ollo s5

The voluntary arbitration cases hich can be

3& unresolved "rievances involvin" the inter$retation or im$lementation o( the collective bar"ainin" a"reement and those arisin" (rom the inter$retation or en(orcement o( com$any $ersonnel $oliciesE @& $roductivity incentive $ro"ram

9& a"e distortion cases and other issues related to a"e and salary administration includin" those resultin" (rom the a$$lication o( -a"e Orders issued by re"ional Tri$artite -a"es and Productivity =oardE G& all other cases not (allin" ithin the ori"inal and e+clusive )urisdiction o( voluntary arbitrators hich are submitted (or voluntary arbitration&

III& Amount o( ,ubsidy % =oth $arties shall be entitled to the (ollo in" ma+imum (i+ed subsidy $er case submitted (or voluntary arbitration5

a&

Inter$retation or im$lementation o( C=A P 3D*DDD&DD

b&

Inter$retation or en(orcement o( com$any $ersonnel $oliciesIsus$ension and dismissalItermination P 3D*DDD&DD

c&

Inter$retation or im$lementation o( $roductivity incentive a"reement P 3D*DDD&DD

d&

-a"e distortion cases and other

issues related to a"e and salary administration includin" those resultin" (rom the a$$lication o( a"e order issued by Re"ional Tri$artite -a"es and Productivity =oard P 3D*DDD&DD

e&

Collective =ar"ainin" Deadloc# P 3?*DDD&DD

(&

The case is a ri"hts dis$ute involvin"

t o or more issues P 3?*DDD&DD

"&

The case is submitted under the

1+$edited Voluntary Arbitration Procedure as laid do n in TVAAC Resolution No& @* series o( 3666& P 3?*DDDD&DD

h&

The case is submitted under the '/AVA, Pro"ram* hich shall be

$aid as (ollo s5 P3*DDD&DD to the le"al aid o((ice* P?DD&DD to to the PAVA local cha$ter* P9*?DD&DD to the voluntary arbitrator P ?*DDD&DD

"&

All other issues

3D*DDD&DD

IV& Procedure (or the Payment o( ,ubsidy

3& Parties availin" o( the voluntary arbitration subsidy shall accom$lish the Re!uest (or ,ubsidy 1ntitlement 'orm and (ile the same ith the a$$ro$riate re"ional =ranch o( the =oard to"ether ith a co$y o( the a ard or decision&

@& The Re"ional =ranch concerned shall immediately act on the re!uest ithin t o A@B days u$on recei$t thereo(& I( the conditions (or entitlement are satis(ied* the Re"ional Director shall (or ard the re!uest to"ether ith all the re!uired su$$ortin" documents to the NCM= e+ecutive Director ith the recommendation that the re!uest be "ranted& Once the entitlement to subsidy is established* the amount shall be directly $aid by the =oard to the voluntary arbitrator concerned& Ho ever* in case the arbitratorJs (ee has been (ully $aid in advance by the $arty or $arties to the arbitrator concerned* the amount shall be reimbursed to the $arty or $arties availin" o( the subsidy&

TH1 'UTUR1 O' GRI1VANC1 PROC1DUR1 AND VO/UNTAR0 AR=ITRATION

-e are !uite o$timistic about the (uture o( "rievance machinery and voluntary arbitration in the settlement o( labor dis$utes&

The hindrances that ere identi(ied as contributory to the (ailure o( these t o modes o( dis$ute settlement in the $ast are bein" addressed& The $roblem o( the hi"h cost o( voluntary

arbitration (ees has been addressed by the creation o( the ,$ecial Voluntary Arbitration 'und out o( the General A$$ro$riation Act and the C=A re"istration (ees& The shorta"e in the number o( available trained* !uali(ied and com$etent voluntary arbitrators is seriously bein" addressed by the continuin" trainin" $ro"rams bein" initiated and conducted by the National Conciliation and Mediation board* in coordination ith non%"overnment or"ani.ations&

The le"al in(rastructure has also been laid do n& -ith the $romul"ation o( Re$ublic Act >83?* voluntary arbitration has been "iven a (resh im$etus* ith the e+$ansion o( the ori"inal and e+clusive )urisdiction o( voluntary arbitration and those that they may hear and decide u$on a"reement o( the $arties&

Administrative su$$ort (or the $ro"ram is also very stron"& A hole division o( the NCM= and its counter$art units in (i(teen A3?B Re"ional =ranches are tas#ed to $romote the $ro"ram over a (ive%year $eriod& The Tri$artite Voluntary Arbitration Advisory Council ATVAACB has also been created solely (or the $ur$ose o( advisin" the NCM= on ho to $romote the voluntary arbitration $ro"ram& The "reater challen"e no (aces labor and mana"ement hose use and su$$ort o( voluntary arbitration ill s$ell the di((erence bet een success and (ailure&

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Re$ublic o( the Phili$$ines De$artment o( /abor and 1m$loyment National Conciliation and Mediation =oard TRIPARTIT1 VO/UNTAR0 AR=ITRATION ADVI,OR0 COUNCI/ Ground 'loor* DO/1 =uildin"* Intramuros* Manila Tele$hone Numbers5 ?@8%9G>9E ?@8%9G6>E ?@8%9G8G

R1,O/UTION NO& 3 ,eries o( 3666

AM1NDING AND CON,O/IDATING TH1 GUID1/IN1, ON TH1 '11, AND IN TH1 PROC1,,ING AND PA0M1NT O' ,U=,ID0 1NTIT/1M1NT 'OR VO/UNTAR0 AR=ITRATION CA,1,

-H1R1A,* Resolutions no& 3* @ and 9* series o( 3668* all o( hich ere $assed by the Tri$artite Voluntary Arbitration Advisory Council and a$$roved by the ,ecretary o( /abor and 1m$loyment on Kanuary >* 3668* established the Guidelines on 1+$edited Voluntary Arbitration Procedure* revised the Guidelines on the Processin" and Payment o( ,ubsidy 1ntitlement and the Guidelines (or ,ubsidy Under the 'ree /e"al Aid and Voluntary Arbitration ,ervices A'/AVA,B $ro"ram* res$ectivelyE

-H1R1A,* these "uidelines need to be revie ed $eriodically $articularly in vie o( the chan"in" times and increasin" costs o( $ro(essional service and other e+$enses incidental to arbitration o( labor dis$utesE

-H1R1A,* to $romote acce$tance o( voluntary arbitration* there is a need to remove the burden o( cost (rom the $artiesE

-H1R1A,* the Council* durin" its 96th,$ecial Meetin" held on @9 A$ril 3666* resolved to revise the Guidelines On 1+$edited Voluntary Arbitration Procedure and consolidate under one "eneral "uidelines* sub)ect to a$$ro$riate distinctions as herein $rovided* all "uidelines on subsidies (or cases (allin" under re"ular and e+$edited voluntary arbitration $rocedures as ell as cases (allin" under the '/AVA, $ro"ramE

-H1R1A,* the Council li#e ise resolved that the subsidy should be $rovided only to $arties ho have no ca$acity to $ay the arbitratorJs (eesE

-H1R1'OR1* $ursuant to the $rovisions o( Re$ublic Act& No& >83? authori.in" the Council to recommend a$$ro$riate "uidelines on the use o( the ,$ecial Voluntary Arbitration 'und $articularly on subsidy* Resolution No& 9* ,eries o( 3668 is hereby incor$orated and Resolution No& @* ,eries o( 3668 is hereby amended to read as (ollo s5

I&

COV1RAG1

The subsidy shall cover all arbitration cases hether involvin" unioni.ed or non%unioni.ed establishments* u$on $roo( by either or both $arties o( lac# o( ca$acity to $ay the cost o( arbitration in accordance ith no& II herein and sub)ect to the (ollo in" conditions5

A&

UND1R R1GU/AR AND 1:P1DIT1D VO/UNTAR0 AR=ITRATION CA,1,

The subsidy shall be $rovided to all arbitration cases involvin" unioni.ed establishments&

=& UND1R TH1 'R11 /1GA/ AID AND VO/UNTAR0 AR=ITRATION ,1RVIC1, A'/AVA,B PROGRAM* the subsidy shall be available to the (ollo in"5

3& Individual or#ers in establishments ith no unions or ith no collective bar"ainin" a"reements AC=AsBE

@&

Unions hich are still in the or"ani.ational sta"eE and

9&

Mana"ement o( distressed com$anies and small and medium enter$rises A,M1sB

II&

PROC1DUR1, AND R1FUIR1M1NT,

The subsidy is $ayable to the voluntary arbitrator or to the Chairman and its members in case o( $anel o( voluntary arbitrators e+ce$t in cases o( reimbursement (or amounts $aid to the arbitrator or $anel o( arbitrators by either $arty* in hich case it shall be $aid to the union or the com$any* as the case may be&

The re!uest (or subsidy shall be su$$orted by the (ollo in"5

A&

Duly%accom$lished re!uest (or ,ubsidy 1ntitlement 'ormE

=&

Co$y o( Decision or A ardE

C& 'or establishments ith C=As* co$y o( C=A or Certi(icate o( C=A R1GI,TRATIONE

D&

Co$y o( ,ubmission A"reementE

1& In cases o( reimbursement* $roo( o( $artialI(ull $ayment to the voluntary arbitratorE

'&

-aiver (rom the other $arty not availin" o( the subsidy* here a$$ro$riate&

All re!uests* accom$anied by the a(orementioned documents shall be (iled ith the a$$ro$riate Re"ional =ranch&

III&

AMOUNT O' ,U=,ID0

A& As a rule* the amount o( subsidy shall be Ten Thousand Pesos AP3D*DDD&DDB (or all ty$es o( voluntary arbitration cases* e+ce$t as s$eci(ied hereunder5

3B

'i(teen thousand $esos AP3?*DDD&DDBshall be $rovided i(5

aB The case is submitted under the 1+$edited Voluntary Arbitration Procedure as laid do n in TVAAC Resolution No& @* series o( 3666&

bB

The case is a ri"hts dis$ute involvin" t o or more issues&

cB

The case involves bar"ainin" deadloc#re"ardless o( the number o( issues&

@B 'ive thousand $esos AP?*DDD&DDBshall be $rovided i( the case is submitted under the '/AVA, $ro"ram&

The amount shall be dis$osed o( as (ollo s5 aB P3*DDD shall be $aid to the o((ice o( the le"al aidE

bB

P?DD shall be remitted to the $ava re"ional cha$terE

cB

P9*?DD shall be $aid to the voluntary arbitrator

=& In instances here the case is settled throu"h a com$romise a"reement entered into by the $arties ith the assistance o( the Voluntary Arbitrator* (ull re"ular subsidy may be "iven to the $arties should it a$$ear to the satis(action o( the =oard that the com$romise a"reement is not contrary to la * morals* "ood order and $ublic $olicy and entered into in "ood (aith and not solely (or the $ur$ose o( claimin" the subsidy& The subsidy under this $rovision can be availed o( by the same $arties only once& Any a"reement hich tantamounts to a mere ithdra al o( the case is e+cluded (rom covera"e o( this $rovision&

C& I( both $arties avail o( the subsidy* the a$$licable amount shall be a$$lied in accordance ith the sharin" scheme o( the $arties $er C=A $rovision& ,hould the sharin" scheme $rovide (or >D%GD or 8D%9D or any sharin" other than ?D%?D* (or $ur$oses o( subsidy* the amount to be $rovided shall be reversed* the bi""er amount ill be a$$lied to labor& In the absence o( any scheme* the subsidy shall be a$$lied e!ually& Ho ever* in no case shall the subsidy be more than the share o( either $arty in the a"reed (ees o( the arbitrator&

IV& ,UP1R,1,,ION C/AU,1

Resolution No& @* ,eries o( 3668 Providin" Guidelines on the 'ees and in the Processin" o( Payment o( ,ubsidy 1ntitlement (or Re"ular Voluntary Arbitration Cases is hereby amended& Resolution No& 9* series o( 3668 $rovidin" Guidelines (or ,ubsidy Under the 'ree /e"al Aid and Voluntary Arbitration ,ervices Pro"ram is hereby incor$orated by re(erence&

All other resolutions inconsistent ith this are hereby su$erseded&

V&

APPROVA/ O' TH1 GUID1/IN1,

These "uidelines shall be sub)ect to the a$$roval o( the ,ecretary o( /abor and 1m$loyment&

NO-* TH1R1'OR1* the Tri$artite Voluntary Arbitration Advisory Council has R1,O/V1D* as it is hereby R1,O/V1D* that the National Conciliation and Mediation =oard shall observe and com$ly ith the "uidelines set (orth herein as a$$roved by the ,ecretary o( /abor and 1m$loyment* in the administration o( the ,$ecial Voluntary Arbitration (und and in the use o( the voluntary arbitration subsidy&

APPROV1D&

Manila* Phili$$ines* November 3?* 3666

A,GD&B =U1NAV1NTURA C& MAG,A/IN Chairman

A,GD&B =1N1DICTO 1RN1,TO R& =ITONIO* KR& Member%Government ,ector

A,GD&B RO=1RTO A& PADI//A Member%/abor ,ector

A,GD&B 1DGAR C& R1CIQA Member%/abor ,ector

A,GD&B RANU/'O P& PA0O, Member%1m$loyer ,ector

A,GD&B ANIANO G& =AGA=A/DO Member%1m$loyer ,ector

APPROV1D5

A,GD&B =I1NV1NIDO 1& /AGU1,MA ,ecretary

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Re$ublic o( the Phili$$ines De$artment o( /abor and 1m$loyment National Conciliation and Mediation =oard TRIPARTIT1 VO/UNTAR0 AR=ITRATION ADVI,OR0 COUNCI/ Ground 'loor* DO/1 =uildin"* Intramuros* Manila Tele$hone Numbers5 ?@8%9G>9E ?@8%9G6>E ?@8%9G8G

R1,O/UTION NO @& ,eries o( 3666

1,TA=/I,HING TH1 R1VI,1D 1:P1DIT1D PROC1DUR1, 'OR VO/UNTAR0 AR=ITRATION O' /A=OR%MANAG1M1NT DI,PUT1,

-H1R1A,* Resolution No& 3 series o( 3668 as $assed by the Council on Kanuary* 3668 establishin" the 1+$edited Procedures (or Voluntary Arbitration o( /abor and Mana"ement dis$utesE

-H1R1A,* the Council durin" its 96th,$ecial Meetin" held on @9 A$ril 3666 resolved to amend these "uidelines to (urther $romote the e+$editious settlement o( labor dis$utes* as (ollo s5

3& The $rocedures shall a$$ly to all voluntary arbitration cases handled by a sin"le voluntary arbitrator involvin" sim$le issueIs here hearin"s* rece$tion o( evidences*

submission o( $ost hearin" brie(sI $osition $a$ers* i( necessary* and $romul"ation o( decision can be com$leted ithin t enty A@DB calendardays (rom submission o( the case to the arbitrator& Ho ever* this $rocedure shall not a$$ly to cases (allin" under the 'ree /e"al Aid and Voluntary Arbitration ,ervices A'/AVA,B $ro"ram&

@& The arbitrator shall meet the $arties ithin t o A@B days (rom re(erral o( the case (or arbitration& 'or subse!uent hearin"s* the arbitrator* ith the a"reement or in consultation ith the $arties* shall (i+ the date* time* and $lace o( the hearin"&

9& The hearin" shall be conducted by the arbitrator in a manner that ill e+$edite (ull $resentation o( the evidence and ar"uments o( the $arties& The arbitrator shall $re$are minutes o( the $roceedin"s duly si"ned the $arties and attested to by the arbitrator* and hich shall (orm $art o( the records o( the case&

G& The a ard shall be in ritin"* si"ned by the arbitrator and rendered ithin t enty A@DB calendar days (rom the date the case is submitted (or arbitration&

?& In case o( com$liance ith this Resolution* any $arty ho has no ca$acity to $ay the arbitratorJs (ee and u$on a$$roval o( the a$$lication (or subsidy shall be entitled to a ma+imum subsidy o( (i(teen thousand $esos AP3?*DDD&DDB& ,uch subsidy shall be $aid directly to the voluntary arbitrator u$on submission o( the documentary re!uirements by the $arties&

APPROV1D&

Manila* Phili$$ines* November 3?* 3666&

A,GD&B =U1NAV1NTURA C& MAG,A/IN Chairman

A,GD&B =1N1DICTO 1RN1,TO R& =ITONIO* KR& Member%Government ,ector

A,GD&B RO=1RTO A& PADI//A Member% /abor ,ector

A,GD&B 1DGAR C& R1CINA Member%/abor ,ector

A,GD&B RANU/'O P& PA0O, Member%1m$loyer ,ector

A,GD&B ANIANO G& =AGA=A/DO Member%1m$loyer ,ector

APPROV1D5

A,GD&B =I1NV1NIDO 1& /AGU1,MA ,ecretary

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% Re$ublic o( the Phili$$ines De$artment o( /abor and 1m$loyment National Conciliation and Mediation =oard TRIPARTIT1 VO/UNTAR0 AR=ITRATION ADVI,OR0 COUNCI/ Ground 'loor* DO/1 =uildin"* Intramuros* Manila Tele$hone Numbers5 ?@8%9G>9E ?@8%9G6>E ?@8%9G8G

R1,O/UTION NO 3& ,eries o( @DD3

-H1R1A,* on D8 Kune 3666* The National Conciliation and Mediation =oard ANCM=B* the Phili$$ine Overseas 1m$loyment Administration APO1AB* the ,ea(arerJs Unions Grou$ and the ,ea(arers 1m$loyers Grou$ entered into a Memorandum o( A"reement ado$tin" the system o( voluntary arbitration as a mode o( settlin" dis$utes bet een the sea(arers and their em$loyers% $rinci$alsE

-H1R1A,*said Memorandum o( A"reement covers the ,ea(arersJ Unions and ,ea(arersJ 1m$loyers Grou$ in the maritime industry ith collective bar"ainin" a"reementsE

-H1R1A,* under said Memorandum o( A"reement* unresolved dis$utes involvin" sea(arers and their em$loyers%$rinci$als arisin" (rom the inter$retation or im$lementation o( the ,tandard 1m$loyment Contract* the ,hi$$in" Article* Collective =ar"ainin" A"reement* the inter$retation* en(orcement o( com$any $ersonnel $olicies at the or#site* and other em$loyer%em$loyee

relations cases involvin" 'ili$ino sea(arers and their em$loyers* $rinci$als and contractin" $artners* includin" but not limited to causes arisin" (rom contracts* disci$linary actions* or other cases shall be submitted to voluntary arbitration (or resolutionE

-H1R1A,* under the said Memorandum* the NCM= has committees to $rovide subsidy to $arties under ,$ecial Voluntary Arbitration 'und in de(rayin" the cost o( voluntary arbitration under the e+istin" "uidelines on availment o( subsidy and such other "uidelines it may $romul"ate5

-H1R1A,* on 3? November 3666* the Tri$artite Voluntary Arbitration Advisory Council ATVAACB $assed Resolution No& 3* ,eries o( 3666 hich amends and consolidates the "uidelines on (ees and on $rocessin" and $ayment o( subsidy entitlement (or voluntary arbitration casesE

-H1R1A,* durin" the GGth,$ecial Meetin" o( the TVAAC held on Au"ust 33* @DDD at the O((ice o( the National Conciliation and Mediation =oard in Manila* the members o( the Council have a"reed to e+tend the subsidy to maritime voluntary arbitration cases covered by the a(orementioned Memorandum o( A"reement* sub)ect to e+istin" "uidelines on the availment o( subsidyE

-H1R1'OR1* $ursuant to the $rovisions o( Re$ublic Act& No& >83? authori.in" the TVAAC to recommend a$$ro$riate "uidelines on the use o( the ,$ecial Voluntary Arbitration 'und $articularly on subsidy* Resolution No& 3* ,eries o( 3666 is hereby made a$$licable also to all maritime dis$utes as de(ined under the above%mentioned Memorandum o( A"reement&

APPROV1D&

Manila* Phili$$ines* 33 A$ril* @DD3&

A,GD&B RO/ANDO RICO C& O/A/IA Chair$erson* TVAAC

A,GD&B =1N1DICTO 1RN1,TO R& =ITONIO* KR& Member%Government ,ector

A,GD&B RO=1RTO A& PADI//A Member% /abor ,ector

A,GD&B 1DGAR C& R1CINA Member%/abor ,ector

A,GD&B RANU/'O P& PA0O, Member%1m$loyer ,ector

A,GD&B ANIANO G& =AGA=A/DO Member%1m$loyer ,ector

APPROV1D5

A,GD&B PATRICIA A& ,TO& TOMA, ,ecretary

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Re$ublic o( the Phili$$ines De$artment o( /abor and 1m$loyment NATIONA/ CONCI/IATION AND M1DIATION =OARD Intramuros* Manila

R1FU1,T 'OR ,U=,ID0 1NTIT/1M1NT

Pursuant to Revised Guidelines on the Utili.ation o( the ,$ecial Voluntary Arbitration 'und on the "rant o( subsidy* the undersi"ned $artyI$arties re!uest (or entitlement under the (ollo in" circumstances AP/1A,1 CH1C2 APP/ICA=/1 CONDITION,B5

3&

Parties availin" o( the subsidy

-e are $arty to a duly si"ned C=A ith DO/1&

-e are $arty to a C=A not yet re"istered ith DO/1* a co$y o( hich is attached&

-e are a $arty not re$resented by duly reco"ni.ed union&

-e are a $arty belon"in" to the unor"ani.ed sector&

@&

Reasons (or availin" the subsidy

The Voluntary 'und $rovided in our C=A is insu((icient as e are able to shoulder the $art o( the cost o( voluntary arbitratorJs (ees in the amount o( PRRRRRRRRRRRR&

Due to (inancial and bud"etary constraints e are unable to $ay the remainin" balance o( the total cost o( the $roceedin"s* es$ecially the voluntary arbitratorJs (ees corres$ondin" to our share&

-e have no (und to $ay (or the voluntary arbitratorJs (ees&

Other reasons* $lease s$eci(y RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

9&

Procedure Utili.ed

1+$edited Voluntary Arbitration Procedure Adecided ithin @D calendar days (rom date o( submission to arbitrationB

Re"ular Voluntary Arbitration Case Procedure

'ree /e"al Aid and Voluntary Arbitration ,ervices A'/AVA,B

G&

Relevant in(ormation are as (ollo s5

aB

Parties5

Union5RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Mana"ement5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

bB Name o( Arbitrator5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRR Acc& No&RRRRRR

cB IssueIs involved RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

dB Date ,ubmitted to Arbitration RRRRRRRRRRRRRRRRRRRRR eB Date ,ubmitted (or Decision RRRRRRRRRRRRRRRRRRRRRR

(B Date Decided RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

"B Total Cost o( Arbitration Aincludin" CounselI/a yerJs 'eesB P RRRRRRRRRRRR

Union ,hare P RRRRRRRRRRRRRRR Mana"ement ,hare P RRRRRRRRRRRRRRRR

hB Cost%,harin" ,cheme under C=A Union RRRRRRRRRRRRRRS Mana"ement RRRRRRRRRRRRRRRRRRS

iB Amount Paid to Arbitrator P RRRRRRRRRRRRRRRRRRRRRR

)B Amount o( ,ubsidy Re!uested P RRRRRRRRRRRRRRRRRRR

Payable to Arbitrator

Reimbursable to Re!uestin" Party

The other $arty is not availin" o( the ,ubsidy APlease chec# i( a$$licableB

In su$$ort o( this re!uest* e submit here ith the (ollo in" documentary re!uirements5

Authenticated co$y o( the Certi(icate o( C=A Re"istration

Co$y o( Unre"istered C=A

Photoco$y o( C=A Provision on Grievance Machinery and Voluntary Arbitration authenticated by both $arties AIn its absence* cost sharin" scheme shall be ?DS%?DSB

Co$y o( ,ubmission A"reement

Co$y o( DecisionIA ard

-aiver (rom the other $arty not availin" o( the ,ubsidy*

here a$$licable

Proo( o( PartialI'ull Payment to the arbitrator A(or reimbursement onlyB

,ubmitted by5

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR ,i"nature over Printed Name

RRRRRRRRRRRRRRRRRRRRRR Position

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR R1FU1,TING PART0

Attested by5

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR Voluntary Arbitrator RRRRRRRRRRRRRRRRRR Accreditation Number

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Re$ublic o( the Phili$$ines De$artment o( /abor and 1m$loyment NATIONA/ CONCI/IATION AND M1DIATION =OARD Re"ional =ranch No& RRRRRRRRRR

,UMMI,,ION

AGR11M1NT

'OR 1:P1DIT1D VO/UNTAR0 AR=ITRATION PROC1DUR1,

Date RRRRRRRRRRRRRRRRRRRRRRRRR

The $arties herein* a(ter e+haustin" the $rocedures o( the "rievance machinery* do hereby a"ree to ado$t the e+$edited voluntary arbitration $rocedure $ursuant to TVAAC Resolution No& 3* ,eries o( 3666&

TO ,U=MITto arbitration the (ollo in" issueIs5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

TO D1,IGNAT1 AND APPOINT RRRRRRRRRRRRRRRRRRRRRRRR as the voluntary arbitrator

TO A=ID1 =0 and com$ly ith the DecisionI Order I Resolution I A ard o( the Arbitrator on the issues submitted (or arbitration and to acce$t the same as (inal and bidin" u$on the $arties herein&

TO PA0the arbitratorJs (ees in accordance ith the $ro$ortionate sharin" scheme under the C=A and in the absence or insu((iciency o( (unds* to avail o( the subsidy $ursuant to e+istin" TVAAC "uidelines&

1MP/O01R5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Address5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Tele$hone No& RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR 'a+ No& RRRRRRRRRRRRRRRRRRRR

Re$resented by5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR Position5RRRRRRRRRRRRRRR

UNION5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR Address5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Tele$hone No& RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR 'a+ No& RRRRRRRRRRRRRRRRRRRR

Re$resented by5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR Position5RRRRRRRRRRRRRRR CON'ORM15

RRRRRRRRRRRRRRRRRRRRRRRRRRRRR

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Union

Mana"ement

RRRRRRRRRRRRRRRRRRRRRRRRR Voluntary Arbitrator

RRRRRRRRRRRRRRRRRRRRRRRRR Date Acce$ted

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

Re$ublic o( the Phili$$ines De$artment o( /abor and 1m$loyment NATIONA/ CONCI/IATION AND M1DIATION =OARD Re"ional =ranch No& RRRRRRRRRR

,UMMI,,ION

AGR11M1NT

Date RRRRRRRRRRRRRRRRRRRRRRRRR

The $arties herein* a(ter e+haustin" the $rocedures o( the "rievance machinery* do hereby a"ree5

TO ,U=MIT to arbitration the (ollo in" issueIs5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

TO D1,IGNAT1 AND APPOINT RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR as the voluntary arbitrator or the (ollo in" as $anel o( arbitrators in this case&

3& RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR* Chairman @& RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR* Member 9& RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR* Member

TO A=ID1 =0and com$ly ith the DecisionI OrderI ResolutionI A ard o( the ArbitratorIPanel o( Arbitrators on the issues submitted (or arbitration and to acce$t the same as (inal and bindin" u$on the $arties herein&

TO PA0the arbitratorJs (ees in accordance ith the $ro$ortionate sharin" scheme under the C=A and in the absence or insu((iciency o( (unds* to avail o( the subsidy $ursuant to e+istin" TVAAC "uidelines&

1MP/O01R5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Address5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Tele$hone No& RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR 'a+ No& RRRRRRRRRRRRRRRRRRRR

Re$resented by5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR Position5RRRRRRRRRRRRRRR

UNION5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Address5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

Tele$hone No& RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR 'a+ No& RRRRRRRRRRRRRRRRRRRR

Re$resented by5 RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR Position5RRRRRRRRRRRRRRR

CON'ORM15

RRRRRRRRRRRRRRRRRRRRRRRRRRRRR Union

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR Mana"ement

RRRRRRRRRRRRRRRRRRRRRRRRR Voluntary Arbitrator

RRRRRRRRRRRRRRRRRRRRRRRRR Date Acce$ted

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

R1'1R1NC1,

Arbitration Association o( the Phili$$ines AAAPB and 'ederacion International Abo"adas A'IOAB& Voluntary Arbitration -hys and -here(oresFue.on City5 Re+ Printin" Co&* Inc& 3678&

Asian%American 'ree /abor Institute AAA'/IB* Arbitration Association o( the Phili$$ines AAAPB* De$artment o( /abor ADO/B* O$en ,ym$osium on Arbitration& Fue.on City* 368G

Asian%American 'ree /abor Institute AAA'/IB%-ashin"ton* ;Contract Inter$retation and A$$lication&< /abor Mana"ement Arbitration* -ashin"ton* 368?&

=autista* Rosa Maria K&* Hearin" Procedures in Voluntary Arbitration* Institute on Grievance ,ettlement and Voluntary Arbitration* =a"uio City* 3676&

Diamonon* Kesus =&* The Collective =ar"ainin" A"reement5 Its Content* Inter$retation and 1n(orcement* Institute on Grievance ,ettlement and Voluntary Arbitration* =acolod* Ca"ayan de Oro City* =a"uio City and Fue.on City* 3676&

1l#ouri* 'ran# and 1dna As$er 1l#ouri* Ho =ureau o( National A((airs* Inc& 367?&

Arbitration -or#s* Gthed&* -ashin"ton* D&C&5

'ernande.* Per(ecto V&* /abor Arbitration* Fue.on City5 Tala Publishin" Cor$oration* 368?&

I/OIUNDPIA,1AN Pro"ramme on Industrial Relations (or Develo$ment* Voluntary and Com$ulsory Arbitration o( /abor Dis$utes& International /abour Or"ani.ation* 3677&

/abor Code o( the Phili$$ines* 367? 1dition&

Ma"naye* =ienvenido* Com$any Personnel Policies* Institute on Grievance ,ettlement and Voluntary Arbitration* =acolod City and Ca"ayan de Oro City& 3676&

National Conciliation and Mediation =oard* De$artment o( /abor and 1m$loyment* =asic Documents on Voluntary Arbitration o( /abor%Mana"ement Dis$utes& Manila* 366@ Revised 1dition&

Trade Union Con"ress o( the Phili$$ines* Manual (or ,ho$ ,te ards* De$artment o( 1ducation and Research* TUCP&

TUCPIAA'/I* Voluntary Arbitration in the Phili$$ines* Ho to Ma#e it -or#* 3673&

Re$ublic Act No& >8@8&

Re$ublic Act No& >683&

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% PROK1CT ,TA''

Pro)ect Director5

Rosalinda D& =aldo.

Pro)ect Coordinators5

Gilbert D& Pimentel 1lenita M& 'rancisco

Technical ,ta((5

Kalilo O& dela Torre Isidro /& Ce$eda Ma& ,hirley I& ,a"uinsin

1ditorial ,ta((5

Reydelu. D& Con(erido Ke((rey D& Corta.ar

Administrative ,ta((5

Teresita '& 1u"enio Arthur R& Audea 1mmanuel T& Diones Cecilia P& /anu.o

Printin" and Publication5

Kose(ina O& ,antos Kunice M& Osunero Teresita D& Rolluda

=oard o( Consultants5

=uenaventura C& Ma"salin Kesus =& Diamonon Cicero D& Calderon 'roilan M& =acun"an Herman M& Montene"ro