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ALEXYLLE ROSE GARSULA CONCEPCION Page | 1

UNIVERSITY OF THE PHILIPPINES LAW


CENTER
INSTITUTE OF JUDICIAL ADMINISTRATION
PARA-LEGAL TRAINING PROGRAM
FOR LAW STUDENTS AND TRADE UNIONISITS
TUCP TRAINING CENTER, ELLIPTICAL ROAD, Q.C.
24 FEBRUARY 1999, 9 AM - 12 NN
COLLECTIVE BARGAINING AGREEMENT:
LEGAL AND PRACTICAL ASPECTS OF
NEGOTIATION AND ADMINISTRATION
Atty. Ada D. Abad
Antonio H. Abad & Associates Law Offices

A. PRELIMINARY CONSIDERATIONS
LECTURE:

entitled to security of tenure, humane


conditions of work, and a living wage.
They shall also participate in policy and
decision-making
processes
affecting
their rights and benefits as may be
provided by law.
The State shall promote the principle
of shared responsibility between workers and
employers, and the preferential use of
voluntary modes in settling disputes,
including conciliation, and shall enforce their
mutual compliance therewith to foster
industrial peace.
The State shall regulate the
relations between the workers and
employers, recognizing the right of
labor to its just share in the fruits of
production,
and
the
right
of
entrepreneurs to reasonable returns on
investments, and to expansion and
growth.

Why do you suppose collective bargaining is


mandated by the Constitution? Why is it so
important as to ensure that workers be collectively
given a chance to participate in the policy and Art. 211 (a), Labor Code cf. Art. 255, LC
decision-making processes, especially when it
Art. 211. Declaration of policy. -affects the terms and conditions of their work?
It is the policy of the State: (a) to promote
and emphasize the primacy of free collective
As a worker or an employee, the most ideal
bargaining and negotiations, as modes of
situation which could be envisioned is that he will be
settling labor or industrial dispute.
able to dictate the terms and conditions of his work,
even including how much he will be paid, the
manner and method by which he will work, and such
other terms and conditions. But that is not usually
the case. In practical terms, the terms and
conditions of employment are usually dictated upon
by the employer at the time of the hiring of the
employee. In a sense, the contract of employment
(if ever there is one) is in the nature of a contract of
adhesion, e.g., there is already a printed form
enumerating
the
terms
and
conditions
of
employment and the employee takes it or leaves
it. From the time of hiring, you can already note
the inherent inequality between management and
labor. Thus, in cognizance of this inherent inequality
in industrial relations, the State has provided
constitutional guarantees to correct the same.

1. Constitutional and statutory basis;


concept and
bargaining

rationale

of

collective

Consti., Art. 13, sec. 3. The State


shall afford full protection to labor, local and
overseas, organized and unorganized, and
promote full employment and equality of
employment opportunities for all.
It shall guarantee the rights of
all
workers
to
self-organization,
collective bargaining and negotiations,
and
peaceful
concerted
activities,
including
the
right
to
strike
in
accordance with law. They shall be

Art. 255. Exclusive bargaining


representation
and
workers
participation in policy and decisionmaking. -The
labor
organization
designated orselected by a majority of the
employees in an appropriate bargaining unit
shall be the exclusive representative of the
employees in such unit for the purpose of
collective bargaining. However, an individual
employee or a group of employees shall have
the right at any time to present grievances to
their employer.
Any provision of the law to the
contrary notwithstanding, workers shall have
the right, subject to such rules and
regulations as the Secretary of Labor and
Employment may promulgate, the participate
in policy and decision-making processes of
the establishment where they are employed
insofar as said processes will directly affect
their rights, benefits and welfare. For this
purpose, workers and employers may form
labor-management councils: Provided, that
the representatives of the workers in such
labor-management councils shall be elected
by at least the majority of all employees in
said establishment.
Kiok Loy vs. NLRC, 141 SCRA 179 (1986)
Collective bargaining which is
defined
as negotiations
towards
a
collective agreement, is one of the

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democratic frameworks under the New Labor
Code, designed to stabilize the relation
between labor and management, and to
create a climate of sound and stable
industrial peace. It is a mutual resonsibility
of the employer and the union, and is
characterized as a legal obligation. So much
so that Art. 249 (g) of the Labor Code makes
it a ULP for the employer to reufse to meet
and convene promptly and expeditiously in
good faith for the purpose of negotiating an
agreement with respect to wages, hours of
work and all other terms and conditions of
employment,
including
proposals
for
adjusting any grievance or question arising
under such an agreement, and executing a
contract incorporating such an agreement, if
requested by either party.

employees of the contractor


and not of the company.

Caltex
Refinery
Empl.
Union
Brillantes, 279 SCRA 218 (1997)

(b) The union that gets the


majority vote in a certification
election, once it is certified as
the exclusive bargaining agent,
does not act for its members
alone. It represents all the
employees in the bargaining
unit. (Mactan Workers Union
vs. Aboitiz).

Note 2: As regards the


bargaining representative:
(a) The union representative
need not be an employee in
the unit. However, the union
officer must an employee in
the unit. (Example: Union
which is certified as the
exclusive
bargaining
agent
may be represented by the
officers of the federation to
which it is affiliated, during the
collective
bargaining
negotiations.)

vs.

Bargaining is not equivalent to an


adversarial litigation where rights and
obligations are delineated and remedies
applied. It is simply a process of finding a
reasonable solution to a conflict and
harmonizing opposite positions into a fair and
reasonable compromise.
AHAs simple definition:

2.1

Definition of
bargaining unit -

the

appropriate

Dept. Order No. 9 (April 1997), Rule


Collective bargaining is a procedure
I, Sec. 1 (q) looking towards the execution of a labor
contract between the employer and the
bargaining agent, regarding wages, hours of Bargaining unit refers to a group of employees
work and other terms and conditions of sharing mutual interests within a given employer
unit, comprised of all or less than all of the entire
employment.
body of employees in the employer unit or any
specific occupational or geographical grouping within
such employer unit.
2. PARTIES TO COLLECTIVE BARGAINING
Basically:
(a) the employer, as
represented by the members of the
Management panel; and (b) the employees,
as represented by the union certified as the
exclusive bargaining agent/representative in
a certification election called for such
purpose.
Note
1: The
duty
to
bargain collectively exists
only between the employer
and the employees. Hence,
in
the
case
of
Planters
Products Employees Union vs.
Planters Products where a
company
employed
an
independent contractor who
had
his
own
employees
assigned to the plant, the
unionized
contract
workers
cannot demand for collective
bargaining with the company,
inasmuch
as
they
are

Golden Farms vs. Sec. of Labor, 234


SCRA 517 - A bargaining unit has
been defined as a group of employees
of a given employer, comprised of all or
less than all of the entire body of
employees, which the collective interest
of all of the employees indicate to be
best suited to serve the reciprocal
rights and duties of the parties under
the collective bargaining provision of
the law.
NOTE: HOW TO DETERMINE THE
APPROPRIATE BARGAINING UNIT
San Miguel Corp. vs. Laguesma, 236 SCRA 595
The fundamental factors in determining the
appropriate collective bargaining unit are: (1) the
will of the employees [Globe doctrine]; (2) the the
affinity and unity of the employees interests, such
as the substantial similarity of work and duties, or of
compensation and working conditions [Substantial
or Mutual Interests rule; community of interest]; (3)

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prior collective bargaining history; and (4) similarity
of employment status.
Toyota Motor Phils. vs. Toyota MP Labor Union,
268 SCRA 571 (1997)
According
to
Rothenberg,
an
appropriate bargaining unit is a group
of employees of a given employer,
composed of all or less than all of the
employees which the collective interest
of all of the employees indicate to be
best suited to serve the reciprocal
rights and duties of the parties under
the collective bargaining provision of
the law. In Belyca Corporation vs.
Ferrer-Calleja,
we
defined
the
bargaining
unit
as
the legal
collectivity
for
purposes
of
collective
bargaining
purposes
whose members have substantially
mutual bargaining interests in
terms
and
conditions
of
employment as will assure to all
employees
their
collective
bargaining rights.
2.2

Generally -- community of interest


The determinative factor in finding out
what kind of workers may properly
constitute an appropriate bargaining
unit is the SUBSTANTIAL SIMILARITY
OF WORK AND DUTIES. The most
efficatious bargaining unit is one which
is comprised of workers enjoying
COMMUNITY
OR
MUTUALITY
OF
INTERESTS. This is so because the
basic test of a bargaining units
acceptability is whether it will best
assure to all the employees concerned
of the exercise of their collective
bargaining rights.

Phil. Land-Air-Sea Labor Union vs. CIR, 110


Phil. 176
In
making
judgments
about
community of interests, the Board will
look to the following factors: (1)
similarity in scale and manner of
determining earnings; (2) similarity in
employments benefits, hours of work,
and other terms and conditions of
employment; (3) similarity in the kind
of work performed; (4) similarity in the
qualifications, skills and training of
employees; (5) frequency of contact or
interchange between the employees;
(6) geographic proximity; (7) continuity
or integration of production processes;
(8)
common
supervision
and
determination of collective bargaining;
(9) history of collective bargaining; (10)
desires of the affected employees; and
(11) extent of union organization.

Pagkakaisa ng Manggagawa sa Triumph vs.


Calleja, 181 SCRA 119
Where the supervisory employees
sought to be represetned by the union
are actually NOT INVOLVED in policy
making, and their recommendatory
powers are not even instantly effective
since they are subject to review by at
least three (3) managers (dept. mgr.,
personnel mgr. And general manager),
then it is evident that these employees
doe not possess managerial status.
The
fact
that
their
work
designations are either managerial
or supervisory is of no moment,
considering that it is the nature of
their functions and NOT SAID
NOMENCLATURES
which
determines their respective status.
A careful examination of the records of
this case reveals no evidence that rules
out the commonality or community of
interest
among
the
rank-and-file
members of the petitioners, and the
herein declared rank-and-file members
of the respondent union. Instead of
forming another bargaining unit, the
law requires them to be members of
the
existing
one. The ends of
unionism are better served if all the
rank-and-file
members
with
substantially the same interests
and who invoke their right to selforganization are part of a single
unit so they can deal with their ER
with JUST ONE AND YET POTENT
VOICE. The Ees bargaining power
with management is strengthened
thereby.
San Miguel vs. Laguesma, 236 SCRA
595
Facts: Petition for CE of North Luzon
Magnolia Sales Force, seeking to
represent all regular sales personnel of
Magnolia in the North Luzon area. This
was opposed by the company, on the
ground of prior bargaining history, re:
each sales office/plant/warehouse to be
considered a separate bargaining unit.
Decision: Existence of prior bargaining
history
is
neither
decisive
nor
conclusive in determination of an
appropriate bargaining unit, the more
decisive
being
the
mutuality
or
community of interest in terms of the
employment conditions and type of
work performed. .
contra: SMC Employees Union vs.
Confesor, 262 SCRA 81 [1996]

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2.3

Spin-off of Magnolia and San Miguel


Foods Companies from the San Miguel
Corporation as separate corporate
entities. Existing CBA included all four
divisions.
During the renewal or
renegotiation for two years on the
economic
provisions,
spin-off
corporations were already in existence.
The Union insisted that the employees
of the spun-off corporations were still to
be considered as part of the appropriate
bargaining unit.

UAW contended that the interrelational


and interdependence of the various
units constitute proof of feasibility of
one company-one union policy, and was
shown by negotiation of plant-wide
agreement (not CBA).

Decision: Considering the spin-off, the


companies would consequently have
their respective and distinctive concerns
in terms of the nature of work, wages,
hours of work and other conditions of
employment.
The interests of the
employees in different companies would
perforce differ. SMC is engaged in beer
manufacturing;
Magnolia
with
manufacturing and processing of dairy
products; SM Foods with production of
feeds and processing of chicken. The
nature of the products and sales of
business may require diff. Skills which
must necessarily be commensurated by
different
compensation
packages;
different volumes of work and working
conditions. It would then be best to
have separate bargaining units for
different companies where the
employees can bargain separately
accdg. to their needs and working
conditions.

2.4 One
Company
One
Union;
modifications under Rep. Act. No.
6715

Globe Doctrine
employees

--

desire

of

The desires of the employees are


relevant to the determination of the
appropriate bargaining unit, but not
controlling under this jurisdiction. It is
only when, all other considerations
being equally balanced, the determining
factor would be the desire of the
employees themselves.
Globe Machine, 3 NLRB 294 [1937]
Three AFL unions representing different
categories
of
employees
(metal
polishers and buffers; punch press
operators; others) of Globe Machine
filed petitions for CE. Another union
(UAW)
intervened,
claiming
representation of all production and
maintenance workers.
Three unions contended that it would
be most feasible to have separate
bargaining units, and that there was a
previous bargaining history of separate
units.

NLRB ruled that in such a case where all


other considerations being equally
balanced, the determining factor would
be the desire of the employees
themselves.

LECTURE:
The proliferation of unions in a single
employer unit is discouraged as a
matter of policy unless there are
compelling reasons which would deny a
certain class of employees the right to
self-org. for purposes of collective
bargaining. Thus:
Managerial
employees are prohibited by law to join,
assist or form labor union; supervisory
are prohibited from joining rank-andfile.
Article 245, Labor Code. Ineligibility
of managerial employees to join any
labor organization; right of supervisory
employees.
Managerial employees
are not eligible to join, assist or form
any labor organization. Supervisory
employees shall not be eligible for
membership in a labor organization of
the rank-and-file employees, but may
join, assist or form separate labor
organizations of their own.
Philtranco vs. BLR, 174 SCRA 388
It is natural in almost all fairly
sized corporations to have different
groups of workers discharging
different functions. No company
could possibly have all employees
performing exactly the same work.
Variety of tasks is to be expected.
It would not be in the interest of sound
mgmt.-labor relations if each group of
employees were to be allowed to form
their
own
separate
bargaining
unit. Certainly
there
is
commonality in interests of all
workers: they are all interested in
the progress of their company and
in each worker sharing the fruits of
their endeavors equitably and
generously. While there may be
differences in the nature of their
individual jobs, such difference is
not substantial as to warrant the
formation of separate unions.

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Indophil Textile Mills Workers
Union vs. Calica, 205 SCRA 697
Acrylic Indophil Corporation cannot be
considered
an
extension
of
IndophilCorporation, as to cover in one
bargaining unit all employees thereof.
Note
separate
corporate
entities:
doctrine of piercing the veil of corporate
entity not applied.
Knitjoy Manufacturing vs. FerrerCalleja, 214 SCRA 174
Article 245 of Labor Code expressly
allows for supervisory employees who
are
not
performing
managerial
functions to join, assist or form unions,
but bars them from membership in the
rank-and-file. The provisions obviously
allows more than one union in the
company.
Toyota Motor Phils. vs. Toyota MP
Labor Union, 268 SCRA 571
(1997)
A labor organization composed of both
rank-and-file
and
supervisory
employees is no labor organization at
all. It cannot, for any guise or purpose,
be a legitimate labor organization, and
consequently, cannot have the right to
file a petition for CE for purposes of
collective bargaining.
It becomes
necessary therefore, anterior to the
granting of an order allowing for a CE,
to inquire into the composition of any
labor organization whenever the status
of the labor org is challenged on the
basis of Art. 245 of the Labor Code.
Supervisory employees: those who,
in the interest of the employer,
effectively
recommend
managerial
actions if the exercise of such authority
is not merely routinary or clerical in
nature but require the use of
independent judgment.
In relation to:
Managerial employees: one who is
vested with powers or prerogatives to
lay down an dexecute management
policies, including right to hire, transfer,
suspend, lay-off and recall.
Villuga vs. NLRC:
A managerial
employee is one whose: (a) primary
duties consists of performance of work
directly
related
to
management
policies; (b) customarily and regularly
exercises discretion and independent
judgment relative thereto; (c) regularly
and directly assists in the management
of the establishment; (d) does not

devote 20% of his time to work other


than those described above.

3. Duty to bargain collectively


3.1

Defined:
Art. 252, Labor Code. Meaning of
duty to bargain collectively. -- The
duty
to
bargain
collectively
means THE PERFORMANCE OF A
MUTUAL OBLIGATION TO MEET
AND CONVENE PROMPTLY AND
EXPEDITIOUSLY IN GOOD FAITH
FOR
THE
PURPOSE
OF
NEGOTIATING
AN
AGREEMENT
WITH RESPECT TO THE WAGES,
HOURS OF WORK AND ALL OTHER
TERMS
AND
CONDITIONS
OF
EMPLOYMENT including proposals for
adjusting any grievances or questions
arising under such agreement and
executing a contract incorporating such
agreements if requested by either
party, but such duty does not compel
any party to agree to a proposal or to
make any concession.
Kiok Loy vs. NLRC, supra.
Sweden Ice cream company, with an
already certified union.
Company
given CBA proposals and request for
counter-proposal. Company ignored
the request. Union filed a case for ULP
after notice of strike. NLRC for Union
and declared the proposals as the CBA.

3.2
When
exists/begins
a)

duty

to

bargain

In the absence of a CBA


Art. 251, Labor Code. Duty to
bargain collectively in the absence
of
collective
bargaining
agreements. -- In the absence of
an agreement or other voluntary
arrangement providing for a more
expeditious manner of collective
bargaining, it shall be the duty of
the
employer
and
the
representatives of the employees
to
bargain
collectively
in
accordance with the provisions of
this Code.
Lakas
Manggagawa
Marcelo, 12 Nov. 1982

vs.

It is essential to the right of a


putative bargaining agent to
represet the employees that it be
the delegate of a majority of the
employees, and conversely, AN

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EMPLOYER IS UNDER DUTY TO
BARGAIN COLLECTIVELY ONLY
WHEN
THE
BARGAINING
AGENT IS REPRESENTATIVE
OF THE MAJORITY OF THE
EMPLOYEES.

It shall be the duty of each


party to keep the status quo
and to continue in full force
and effect the terms and
conditions of the existing CBA
during the 60-day period,
and/or until a new agreement
is reached by the parties.

A natural consequence of this


is that the employer has the right
to demand of the asserted
bargaining agent proof of its
representation
of
its
employees. Having the right to
demonstration of this fact, it is
not unfair labor practice for
an employer to refuse to
negotiate until the asserted
bargaining
agent
has
presented reasonable proof of
majority representation. It is
necessary however that the
demand be made in good faith,
and not merely as a pretext or
device for delay or evasion.
The
employers
right
is
however subject to reasonable
proof only.

Note 2: As regards CBA about to


expire, the law provides for
anAUTOMATIC
RENEWAL
CLAUSE, e.g., that the terms and
conditions of the existing CBA
shall continue to be in full force
and effect during the sixty-day
freedom period (Union of Filipro
Ees. vs. NLRC, 192 SCRA 414),
or until a new CBA is reached.
Thus, depiste the lapse of the
effectivity of the old CBA, the law
considers the same as continuing
in full force and effect until a new
CBA is executed. (Lopez Sugar
vs. FFW, 30 Aug. 1990)
Note 3:
In both instances
however, the duty to bargain
collectively
is
therefore
an
obligation of both the employer
and the employees/union.

b) With the existence of a CBA only during freedom period


Art. 253, Labor Code. Duty to
bargain collectively when there
exists a collective bargaining
agreement. -- When there is a
collective bargaining agreement,
the duty to bargain collectively
shall also mean that neither party
shall terminate nor modify such
agreement
during
its
lifetime. HOWEVER,
EITHER
PARTY CAN SERVE A WRITTEN
NOTICE TO TERMINATE OR
MODIFY THE AGREEMENT AT
LEAST SIXTY (60) DAYS PRIOR
TO ITS EXPIRATION DATE. It
shall be the duty of both parties to
keep the status quo and to
continue in full force and effect the
terms and conditions of the
existing agreement during the 60day period and/or until a new
agreement is reached by the
parties.
Note 1. When there is a collective
bargaining agreement, the duty to
bargain collectively shall also
mean that neither party shall
terminate or modify such
agreement during its lifetime.
However, either party can serve a
written notice to terminate or
modify the agreement at least 60
days prior to the expiration day.

3.3

Effect of refusal to bargain constitutes ULP under Art. 248


(g)
Art. 248 (g), Labor Code. Unfair
labor practices of employers. -- To
violate the duty to bargain collectively
as prescribed by this Code.
If the employer is guilty of violating
the duty to bargain collectively in
good faith, the employer may be held
guilty of ULP under Art. 258 (g).
Furthermore, the unions draft CBA
proposals may unilaterally be imposed
upon the employer as the collective
bargaining agreement to govern their
relationship.
Hence, the case of
Divine Word.
Divine Word Univ. vs. NLRC, 213
SCRA 759
Petitioners
contention
that
the
Unions
proposal
may
not
be
unilaterally imposed on it on the
ground that a CBA is a contract where
in the consent of both parties is
indispensable, is devoid of merit.
A similar argument has already been
disregarded in the case of KIOK LOY,
where the SC upheld the order of the
NLRC declaring the unions draft CBA
proposal as the collective agreement

ALEXYLLE ROSE GARSULA CONCEPCION Page | 7


which should govern the relationship
between the parties. That case is
applicable because of the similarities:
(a) the union made a definite request
to
bargain
and
submitted
its
bargaining
proposals;
(b)
the
University made no counter-proposal
whatsoever.
As stated in Kiok Loy, a companys
refusal
to
make
counter
proposals,
if
considered
in
relation to the entire bargaining
process, may indicate bad faith,
and this is especially true where
the Unions request for the
counter-proposal
is
left
unanswered.
While it is not
obligatory
for
either
party
to
precipitately accept or agree to the
proposals of the other, an erring party
should not be tolerated and allowed
with impunity to resort to schemes
feigning
negotiations
by
going
through empty gestures.

it is but just that they should be given their


equitable share in the profits.
In the context of a depressed economy such as
ours, and the lack of employment opportunities,
employer-employee relationships may thus be
subject to abuses by management. Hence, the
State regulates the relationship through the
promulgation and implementation of laws which
are intended to protect the interests of labor.
One such right is thus collective bargaining.
1.

As intimated earlier, collective bargaining


allows for a means toward the ideal laissez
faire condition, where the employees stand
on a more or less equal footing with the
employer, in threshing out the conditions and
terms of their employment.
It is in pursuance of the better terms and
conditions of their employment that the
Union would seek vast improvements
therein. Thus, in the submission of their
proposals, the Union usually maximizes their
proposals (SUNTOK SA BUWAN), in
cognizance that these proposals will usually
be whittled down during the negotiation
proper.

Hence, Divine Word may not validly


assert that its consent should be a
primordial
consideration
in
the
bargaining process. By its acts, no
less that its inaction which
bespeck of its sincerity, it has
forfeited whatever rights it could
have asserted as an employer.
3.4

On the other hand, the Company will usually


maintain a very conservative stand. In the
context of its quest for profits, the Company
will as much as possible not want to give
anything more than that which is mandated
by law. Thus, this is where the bargaining
power and the relative strength of the Union
comes in. This is in turn, backed up by its
constitutional rights to strike and to
undertake concerted activities --- but note
that this must all be done in accordance with
law.

When duty to bargain ceases


1. Upon actual loss of majority status
of the bargaining representative
without fault of the employer; or
2. Where a representation question or
dispute has arisen in the unit.
2.

B.

COLLECTIVE BARGAINING NEGOTIATIONS

A PRACTICAL GUIDE IN HANDLING CBA


NEGOTIATIONS
As had been intimated earlier, the constitutional
guarantee of the workers right to collective
bargaining is an implicit cognizance of the
inherent inequality in the economic relationship
between labor and management. Management
controls and owns the capital, the disposition
and direction of which is entirely within
management prerogatives, in its quest for
PROFITS.
On the other hand, the workers are economically
dependent upon capital, and hence, the weaker
of the two. Note however that despite this,
there is no gainsaying the fact that without the
workers efforts, profits could not be had. Thus,

Submission of Proposals

Composition of Panels; requirements


2.1 Appointment of the members of the
respective panels;
by whose
authority
For the management panel: by
authority of the President or the Board
of Directors/Trustees, depending upon
the By-laws of the corporation.
Usually, Board of Directors/Trustees
give authority by way of a resolution
passed and approved during a regular
meeting, there being a quorum to
transact business.
For the union panel: usually the
officers of the union are members of
the panel, duly given authority by their
own Board.

ALEXYLLE ROSE GARSULA CONCEPCION Page | 8


2.2

Presentation of the appropriate


Special Power of Attorney

while the recording secretary for the


Union panel shall be Ms. Ara Mina).

2.3
Identification of Chairman and
Recorder

Both recording secretaries shall consult


with each other and make the common
minutes for the past meeting.

Chairman: note that it is only the


chairman that can bind their respective
panel.
Recorder: to ensure the recording of
the minutes of each meeting or
conference. The minutes are useful
later, in case there arises a question of
the
interpretation
and/or
implementation of the CBA provisions.

3. Determination of ground
1st mtg.
3.1

rules

What will be considered


Working Documents
e.g., Existing CBA
proposals of Union

and

Mechanics:
The
Union
recording
secretary may fax their minutes to the
Management recording secretary who
will make the common minutes. The
common minutes must be faxed at least
one (1) day immediately prior to the
next scheduled meeting, in order that
the Union may review the same.
3.5

(on

The common minutes should all be


signed before the actual start of the
negotiations. Hence, any correction,
amendments or modifications to the
common minutes must be made prior to
the start of the negotiations.

as

the

3.6

The
following
documents
may
considered as the working documents
of the CBA negotiations: (a) Original
CBA; (b) Proposals of the Union for a
new CBA; and (c) Counter-proposals of
the Management shall be considered as
references.
3.2

3.3

3.4

Both panels should appoint


respective recording secretary.

3.7

Setting of the Agenda


In order that the discussions per
meeting will be both fast and
productive, both panel should agree
that before adjournment of each
meeting, that they will enumerate the
agenda for discussion on the next
meeting.

3.8

Related expenses
It was agreed that expenses for the
collective
bargaining
negotiations
pertaining to merienda, shall be for the
account of the Management.
Recess
Recess during negotiations shall be
allowed upon request of either panel.

their

(The recording secretary for the


Institute shall be Ms. Rosanna Roces,

or

Both panels may agree to follow the


order
provided
in
the
Working
Documents (CBA 1996) in accordance
with the above priority.

3.9

Recording of the Minutes

Discussion

OR

Postponement
It may be agreed by both panels that
should a postponement be necessary,
to inform the other panel, in writing, of
such postponement within twenty four
(24) hours. Should the Union request
for a postponement, such notice should
be addressed to Chairman or Recorder
of the Management panel; should the
Management
request
for
a
postponement, such notice should be
addressed to the President of the Union
or the recorder.

Order
of
Negotiations

Both panels may agree to discuss noneconomic provisions first (inclusive of


political and union rights), prior to the
discussion on all economic provisions.

Quorum
The quorum for business to be
transacted shall be at least: (a) three
[3] members for the Management
Panel; and (b) three [3] members for
the Union Panel.

Signing of the Common Minutes

3.10

Venue, frequency and time


meetings

of

ALEXYLLE ROSE GARSULA CONCEPCION Page | 9


Usually better to set it at a particular day and time,
e.g., every Friday at 10:00 a.m. Note that for
union members, this is considered time-in.
The time frame per each meeting may
be extended by mutual consent of both
parties, should the same be deemed
necessary under the circumstances.

4.

What are Bargainable Issues - Art. 252,


LC
Art. 252, Labor Code. Meaning of duty to
bargain collectively. -- The duty to bargain
collectively means the performance of a
mutual obligation to meet and convene
promptly and expeditiously in good faith for
the purpose of negotiating an agreement
with respect to the wages, hours of work
and all other terms and conditions of
employment including proposals for
adjusting any grievances or questions
arising under such agreement and
executing a contract incorporating such
agreements if requested by either party,
but such duty does not compel any party to
agree to a proposal or to make any
concession.
4.1 Mandatory Subjects
a. As regards minimum standards
provided by the Labor Code and
effect of substandard contract
Phil. Am. Mgmt. vs. Phil. Am. Ees.
Assn., 51 SCRA 98 (1971)
There is an area placed beyond the
sphere of bargaining between the
parties.
Included therein is the
question of minimum wages. It is
understandable why it is so. For
legislation
of
that
character
proceeds from the premise that
THERE IS A FLOOR BELOW WHICH
THE
AMOUNT
PAID
LABOR
SHOULD NOT FALL. That is to
assrue decent living conditions. Such
an enactment is compoulsory in
nature; not even the consent of the
employees themselves suffices to
defeat its operation. MORE PLAINLY
PUT, THE QUESTION OF MINIMUM
WAGES IS NOT NEGOTIABLE.
What the law decrees must be
obeyed. It is as simple as that.
NOTE: By entering into a subminimum contract, there arises a
cause of action on the part of the
affected
employees
to DECERTIFYthe Union (Article
239, LC).

Nestle Phils. vs. NLRC, 193 SCRA


504 (1991)
The companys contention that the
retirement
plan
being
noncontributory
and
hence,
nonnegotiable, is not well-taken. The
NLRC correctly observed that the
inclusion of the retirement plan in the
CBA as part of the package of
economic benefits extended by the
company to its employees to provide
them a measure of financial security
after they shall have ceased to be
employed in the company, reward
their loyalty, boost their morale and
efficiency, and promote industrial
peace, gives a consensual character
to the plan so that it may not be
terminated or modified at will by
either party.
The fact that the retirement plan is
non-contributory
(i.e.
that
the
employees do not contribute anything
to the operation of the plan) does not
make
it
a
non-issue
in
CBA
negotiations. As a matter of fact,
almost all of the benefits which the
company
has
granted
to
its
employees are non-contributory, such
as salary increases, rice allowances,
mid-year
bonuses,
13th and
th
14 month pay, seniority pay, medical
and hospitalization plans, health and
dental services, vacation, sick and
other leaves with pay, are noncontributory.
b.
Grievance
procedure
voluntary arbitration

and

The grievance machinery as


provided in the CBA usually defines
the following: (a) composition of the
panel; (b) procedure at plant level;
and (c) what is to be considered as
a grievance. If the definition
includes ULP as subject to the
grievance procedure, a strike in
violation of its terms will be illegal.
PROCEDURE UNDER THE LAW
AFTER GRIEVANCE MACHINERY
PLANT LEVEL:
Under
the
Labor
Code,
all
grievances
submitted
to
the
grievance machinery which are not
settled within 7 calendar days from
the date of its submission shall
automatically
be
referred
to
voluntary arbitration prescribed in
the CBA (Art. 260, LC).
For this purpose, parties to a CBA
shall name and designate in

A L E X Y L L E R O S E G A R S U L A C O N C E P C I O N P a g e | 10
advance a Voluntary Arbitrator or
panel of Voluntary Arbitrators, or
include
in
the
agreement
a
procedure for the selection of such
VA or panel of VAs, preferably from
a listing of qualified VAs duly
accredited by the Board.
The VA or panel of VAs shall have
original and exclusive jurisdiction to
hear and decide all unresolved
grievances
arising
from
the
jurisdiction to hear and decide all
unresolved grievances arising from
the interpretation or implementation
of the CBA and those arising from
the interpretation or enforcement of
company
personnel
policies. Violations of a CBA,
except those which are gross in
character, shall no longer be
treated as unfair labor practice
and
shall
be
resolved
as
grievances under the CBA.
Gross violations of the CBA shall
mean flagrant and/or malicious
refusal to comply with the
economic provisions of the
agreement (Art. 260, LC).

Unless the parties agree otherwise,


it shall be mandatory for the VA or
the VA panel to render an award or
decision within 20 calendar days
from the date of submission of the
dispute to VA.
c. union dues, special assessment
Art. 241, Labor Code. Rights and
conditions of membership in a labor
organization
(g) No officer, agent or member of a labor
organization shall collect any fees, dues or other
contributions in its behalf or make any disbursement
of its money or funds unless he is duly authorized
pursuant to its constitution and by-laws;
(h) Every payment of fees, dues or other
contributions by a member shall be evidenced by a
receipt signed by the officer or agent making the
collection and entered into the record of the
organization to be kept and maintained for the
purpose;
(n) No special assessment or other extraordinary
fees may be levied upon the members of a labor
organization unless authorized by a written
resolution of a majority of all the members of a
general membership meeting duly called for the
purpose. The secretary of the organization shall
record the minutes of the meeting including the list
of all members present, the votes cast, the purpose
of the special assessment or fees and the recipient
of such assessment or fees. The record shall be
attested to by the president.

The
Commission,
its
Regional
Offices and the Regional Directors of
the
Department
of
Labor
&
Employment shall not entertain
disputes, grievances or matters
under the exclusive and original
jurisdiction of the VA or VA panel
and shall immediately dispose and
refer the same to the Grievance
Machinery or Voluntary Arbitration (o) Other than for mandatory activities under the
Code, no special assessments, attorneys fees,
provided in the CBA (Art. 261, LC).
negotiation fees or any other extraordinary fees
may be checked off from any amount due to an
The VA or VA panel, upon
employee, without an individual written
agreement of the parties, shall also
authorization duly signed by the employee. The
hear and decide all other labor
authorization should specifically state the amount,
disputes including unfair labor
purpose and beneficiary of the deduction, if any.
practices (ULPs) and bargaining
deadlocks (Art. 262, LC).
xxx Any violation of the above rights and conditions
of membership shall be a ground for the cancellation
The VA shall have the power to hold
of union registration or expulsion of officer from
hearings, receive evidence and take
office, whichever is appropriate. At least thirty
whatever action is necessary to
percent (30%) of all the members of a union or any
resolve the issue/s subject to the
member or members specifically concerned may
dispute, including efforts to effect a
report such violation to the Bureau. xxx
voluntary settlement between the
parties.
Art.
222
(b),
Labor
Code. Appearances and fees. -- (b)
All parties to the dispute shall be
No attorneys fees, negotiation fees or
entitled to attend the arbitration
similar charges of any kind arising
proceedings. The attendance of any
from
any
collective
bargaining
third party or the exclusion of any
negotiations or conclusion of the
witness from the proceedings shall
collective agreement shall be imposed
be determined by the VA or VA
on any individual member of the
panel. Hearings may be adjourned
contracting
union; Provided,
for cause or upon agreement by the
however, that attorneys fees may
parties.
be charged against union funds in
an amount to be agreed upon by

A L E X Y L L E R O S E G A R S U L A C O N C E P C I O N P a g e | 11
the
parties.
Any
contract,
agreement or arrangement of any
sort to the contrary shall be null
and void.

2. MANAGEMENT agrees that


there shall be no lock-out during the
effectivity of this CBA.
The
No
Strike-No
Lockout
Clause is not an infringement or
undue
restriction
of
the
constitutional right to strike,
because said clause is applicable
only to ECONOMIC STRIKES, but
not to ULP strikes.
In other
words, even during the effectivity
of the CBA, the Union may still
strike if the company commits
ULP as enumerated in Article 248
of the Labor Code. (PHIL. METAL
FOUNDRIES VS. CIR, 90 SCRA
135)

Palacol vs. Calleja, 26 Feb. 1990


THE SPECIAL ASSESSMENT IN
THIS
CASE
WAS
DECLARED
INVALID.
A special assessment cannot be
validly deducted by the Union certified
as coll. barg. agent from the lumpsum pay of its members granted
under the CBA, especially so that
there
had
been
subsequent
disauthorizations by the majority
of the union members, and that
the procedure for imposition of
special assessment provided by
the Labor Code was not followed.

General rule:
A No strike - No Lock-out
clause applies only to economic
strikes, and not to ULP strike. (Phil.
Metal Foundries case).

Special assessment was for purposes


of putting up a cooperative and credit
union, for purchase of vehicles and
other items needed for the benefit of
the officers and general membership,
and for payment of services rendered
by union members. Allocation thereof
at discretion of Union President.
The Union, contrary to the legal
procedure, held local membership
meetings on different occasion, on
different dates and various venues. It
submitted only minutes of said
meetings when what is required is a
written resolution adopted at the
general meeting. Worse, only a union
director recorded the minutes and not
the secretary, no record of votes or
list of members present.
d. No Strike - No Lock-out clause
Example:
MANAGEMENT and UNION
agree that the way to preserve job
security and improve the welfare of
the employees is to increase the
goodwill xxx. It is therefore to the
mutual interest of both parties that
the business of the company will
continue without inconvenience to the
public, and as such, MANAGEMENT
and UNION agree as follows:
1. UNION agrees that there
shall
be
no
strike,
walk-outs,
stoppage, slowdown, boycotts, xxx
whether sympathetic or general,
during the effectivity of this CBA.

Exception: (but this is no longer


controlling; already overturned and
modified by the new rules which
reverts back to the Phil. Metal
Foundries case)
When the CBA provides for a
conclusive arbitration clause, in which
case, even ULP strikes are subject to
the no-strike no lock-out clause.
(Union of Filipro vs. Nestle Phils.)
4.2

Other non-mandatory subjects


a.
Management
clause

prerogatives

The
above
provisions
notwithstanding, MANAGEMENT is
not precluded from exercising its
management
prerogatives,
including but not limited to the
exclusive right to hire and
appoint employees subject to
such
reasonable
rules
and
regulations it may prescribe, to
transfer, demote, suspend, layoff, dismiss or impose any form of
disciplinary
action
upon
its
employees, or such other matters
relative to the conduct of the
business of the company.
b. Union security clauses (union
shop/closed shop, etc.)
Example 1:
MANAGEMENT agrees to require
as a condition of employment for
those employees within the

A L E X Y L L E R O S E G A R S U L A C O N C E P C I O N P a g e | 12
bargaining unit who are either
members
of
the
ABC
FEDERATION on the date of the
effectivity of this CBA, or may
join
the
union
during
the
effectivity of this Agreement, and
that they shall not voluntarily
resign from the union earlier than
60 days prior to expiration of this
Agreement. xxx

equivalent to the dues and other


fees paid by members of the
recognized collective bargaining
agent,
if
such
non-union
members accept the benefits
under the collective agreement:
Provided, that the individual
authorization
required
under
Article 242, paragraph (o) of this
Code shall not apply to the nonmembers of the
recognized
collective bargaining agent;

Example 2:

c. Signing bonus:

Section 1. Employees of the


COMPANY who at the signing of
this Agreement are members of
the UNION and those who
subsequently become members
thereof
shall
maintain
their
membership with the UNION for
the duration of this Agreement as
a condition of employment.

Caltex
Refinery
Assn.
Brillantes, 279 SCRA 218

Although proposed by petitioner


UNION, the signing bonus was not
accepted
by
the
Company.
Besides, a signing bonus is not a
benefit which may be demanded
under the law. Rather, it is now
claimed by petitioner Union under
the principle of maintenance of
existing benefits of the old
CBA. However,
as
clearly
explained by the respondent
Company, a signing bonus may
not be demanded as a matter
of right. If it is not agreed
upon
by
the
parties,
or
unilaterally
offered
as
an
additional incentive by the
company, the condition for
awarding it must be duly
satisfied. In the present case,
the condition sine qua non for its
grant a non-strike was not
complied
with.

Section 2. Members of the Union


who cease to be members of the
UNION in good standing by
reason of resignation or expulsion
shall not be retained in the
employment of the COMPANY.
NOTE: A Union security clause cannot have any
retroactive effect under Article 248 of the Labor
Code, and as such, will not apply to employees who
are already members of another union at the time of
the effectivity of the CBA.
ART. 248. Unfair labor practices
of employers. - It shall be
unlawful for an employer to
commit any of the following
unfair labor practice:
xxx
(e) To discriminate in regard to
wages, hours of work, and other
terms
and
conditions
of
employment
in
order
to
encourage
or
discourage
membership
in
any
labor
organization. Nothing in this
Code or in any other law shall
stop
the
parties
from
requiring membership in a
recognized
collective
bargaining
agent
as
a
condition for
employment,
except those employees who
are
already
members
of
another union at the time of
the signing of the collective
bargaining
agreement.
Employees of an appropriate
collective bargaining unit who are
not members of the recognized
collective bargaining agent may
be assessed a reasonable fee

vs.

5.

Bargaining Deadlock
5.1

When is there a deadlock


collective bargaining

in

Deadlock
is
defined
as
the
counteraction of things producing an
entire stoppage; a state of inaction or
of neutralizaiton caused by the
opposition
of
persons
or
factions; STANDSTILL.
During negotiations, it is a situation
where both parties have reached a
point beyond which there is no longer
any compromise, e.g., unacceptable.
The word is synonymous to an
impasse, which in labor relations
law, presupposes reasonable effort at
good faith bargaining which, despite
noble intentions, does not conclude in
an agreement between the parties.

A L E X Y L L E R O S E G A R S U L A C O N C E P C I O N P a g e | 13
Capitol Medical Center Alliance of
Concerned
Employees
vs. Laguesma, 267 SCRA 503
(1997)
In the case of Divine Word University
of Tacloban vs. Secretary of Labor and
Employment, we had the occasion to
define what a deadlock is, viz:
A deadlock is xxx the counterclaim
of things producing entire stoppage;
xxx. There is a deadlock when there
is a complete blocking or stoppage
resulting from the action of equal and
opposed forces xxx. The word is
synonymous with the word impasse,
which xxx presupposes reasonable
effort at good faith bargaining which,
despite noble intentions, does not
conclude in agreement between the
parties.
If the law proscribes the conduct
of a certification election when
there is a bargaining deadlock
submitted
to
conciliation
or
arbitration, with more reason
should it not be conducted if,
despite attempts to bring an
employer to the negotiation table
by the certified bargaining agent,
there was no reasonable effort in
good faith on the part of the
employer to bargain collectively.

ITS
DUTY
COLLECTIVELY.

TO

BARGAIN

5.2 Remedies - Notice of strike or


notice of lock-out
30day cooling-period and 7-day strike
ban.
Art. 263 (c), Labor Code. Strikes,
picketing and lock-outs. -- (c) In
cases of bargaining deadlocks,
the duly certified or recognized
bargaining agent may file a
notice of strike or the employer
may file a notice of lock-out with
the
Ministry
(Department) at
least 30 days before the intended
date thereof.
In cases of unfair labor practice,
the period of notice shall be 15
days and in the absence of a duly
certified or recognized bargaining
agent, the notice of strike may be
filed
by
any
legitimate
labor
organization
in
behalf
of
its
members.
However, in case of
dismissal from employment of union
officers duly elected in accordance
with the union constitution and bylaws, which may constitute union
busting where the existence of the
union is threatened, the 15-day
cooling off period shall not apply, and
the
union
may
take
action
accordingly.

This is what is strikingly different


between the Kaisahan case and the
(f) A decision to declare a strike
case at bench for in the latter case,
must be approved by a majority of
there was proof that the certified
the total union membership in the
bargaining agent, respondent union,
bargaining unit concerned, obtained
had taken an action to legally coerce
by secret ballot in meetings or
the employer to comply with its
referenda called for that purpose.
statutory duty to bargain collectively,
Xxx The decision shall be valid for
i.e., charging the employer with unfair
the duration of the dispute based on
labor practice and conducting a strike
substantially the same grounds
in protest against the employer'
considered when the strike or lockout
refusal to bargain. It is only just
vote was considered. Xxx. In every
and
equitable
that
the
case, the union or the employer
circumstances in this case should
shall furnish the (Department)
be considered as similar in nature
the results of the volting at least
to a bargaining deadlock when
seven days before the intended
no certification election could be
date of strike or lockout, subject
held. This is also to make sure that
to the cooling-off period herein
no floodgates will be opened for the
provided.
circumvention
of
the
law
by
unscrupulous employers to prevent
any certified bargaining agent from
negotiating a CBA. THUS, SECTION C. COLLECTIVE BARGAINING AGREEMENT
3, RULE V, BOOK V OF THE
IMPLEMENTING RULES SHOULD
1. Definition
BE INTERPRETED LIBERALLY SO
AS
TO
INCLUDE
A
Dept. Order No. 9, Rule I. Definition of
CIRCUMSTANCE, E.G. WHERE A
terms.
(pp)
Collective
bargaining
CBA COULD NOT BE CONCLUDED
agreement
refers
to
the
negotiated
contract
DUE TO THE FAILURE OF ONE
between
a
legitimate
labor
organization
and
PARTY TO WILLINGLY PERFORM
the employer concerning wages, hours of

A L E X Y L L E R O S E G A R S U L A C O N C E P C I O N P a g e | 14
work and all other terms and conditions of
employment in a bargaining unit.
B5 R1 S1 (jj), Impl. Rules and
Regulations.
Collective
bargaining
agreement refers to the negotiated contract
between a legitimate labor organization and
the employer concerning wages, hours of
work and all other terms and conditions of
employment in a bargaining unit, including
mandatory provisions for grievances and
arbitration machineries.
Davao Integrated Port Stevedoring vs.
Abarquez, 220 SCRA 197 (1993)
While the terms and conditions of a CBA
constitute the law between the parties,
it is not an ordinary contract to which is
applied the principles of law governing
ordinary contracts. A CBA, as a labor
contract within contemplation of Art.
1700 of the Civil Code, is not merely
contractual in nature but is impressed
with public interest. Thus, it must yield
to the common good. As such, it must be
construed liberally rather than narrowly and
technically, and the courts must place a
practical and realistic construction upon it,
giving due consideration to the context in
which it is negotiated and the purpose which
it
is
intended
to
serve.

2.

Signing and ratification


2.1

2.2

The collective bargaining agreement


should be signed by the members of
both panels.
After the signing by the panels, a
majority of the employees covered by
the appropriate bargaining unit should
ratify the same.

2.3

Note the posting requirement in at


least two conspicuous places in the
establishment at least five (5) days
before its ratification

2.4

If certified CBA, contract bar rule


applies and operates as a bar to a
representation question.

2.5

Note however that a CBA is valid


even without certification, and will be
considered as binding upon the
parties.

3. Procedure in registration of CBA


Dept. Order No. 9 (April 1997), Rule
XVI, Secs. 1, 2 & 5:
(See also: B5 R9 S1, IRR)

Section
1. Registration
of
collective
bargaining agreement. The parties to a
collective bargaining agreement shall submit
to the appropriate Regional Office two (2)
duly signed copies thereof within thirty (30)
calendar days from execution. Such copies
of the agreement shall be accompanied with
verified proof of posting in two conspicuous
places in the work place and of ratification by
the majority of all the workers of the
bargaining unit.
Such proof shall consist of copies of
the following documents certified under
oath by the union secretary and attested
to by the union president.
(a) Statement that the collective
bargaining agreement was posted in at least
two conspicuous places in the establishment
at least five (5) days before its ratification;
and
(b) Statement that the collective
bargaining agreement was ratified by the
majority of the employees in the bargaining
unit.
The Regional Office shall assess the
employer for every collective bargaining
agreement a registration fee of one thousand
pesos (P1,000.00).
The Regional Office shall retain one
(1) copy of the agreement for its file and
transmit one (1) copy thereof tot he Bureau
within five (5) calendar days from its
registration. The Regional Office shall issue a
certification of registration within five (5)
calendar days from receipt of the agreement
and the proofs of posting and ratification as
required herein.
Section
2. Registration
of
agreement
resulting from awards by the Secretary, the
Commission or the Voluntary Arbitrator.
-- Where the agreement results from an
arbitration award, the same shall be
registered
in
accordance
with
the
immediately preceding section, except that
the requirement of ratification and proof
thereof shall be dispensed with.
Section 5. Appeal. -- The decision of the
Regional Director granting or denying an
action to declare the registration ineffectual
may be appealed to the Bureau on the
ground of grave abuse of discretion within
ten (10) days from receipt of the parties of a
copy thereof. The Bureau shall have twenty
(20) dyas within which to resolve the appeal
and its decision shall be final and executory.
Art. 231, Labor Code. Registry of unions
and file of collective agreements. -- The
Bureau shall keep a registry of legitimate
labor organizations. The Bureau shall also

A L E X Y L L E R O S E G A R S U L A C O N C E P C I O N P a g e | 15
maintain a file of all collective bargaining
agreements and other related agreements
and records of settlement of labor disputes,
and copies of orders, and decisions of
voluntary arbitrators. The files shall be open
and accessible to interested parties subject
to conditions prescribed by the Secretary of
Labor and Employment, provided that no
specific information submitted in confidence
shall be disclosed unless authorized by the
Secretary, or when it is at issue in any
judicial litigation or when public interest or
national security so requires.
xxx

4. Scope of the agreement; who may avail


of benefits Natl. Brewers and Allied Industries
Labor Union vs. San Miguel Brewery
All employees in the barg. unit are covered,
regardless of their membership or nonmembership in the union; otherwise,
discrimination.

5.

Duration of the CBA (Art. 253-A. cf.


Dept. Order No. 9, Rule XIV, Secs. 3-4)
Article 253-A, Labor Code. (same as
Dept. Order No. 9, Rule XIV, secs. 3-4)
5.1 Economic provisions of the CBA term of 3 yrs.
Dept. Order No. 9, Rule XIV, sec. 3
All other provisions of said agreement
shall, as a matter of right, be
renegotiated not later than three (3)
years after its execution.
5.2 Representation question and the
contract-bar rule
Dept. Order No. 9, Rule XIV, secs.
3-4
Section 3. Term of representation
status of agreement; contract-bar
rule. -- The representation status of
the incumbent exclusive bargaining
representative which is a party to a duly
registered
collective
bargaining
agreement shall be for a term of five
(5)
years. (CONTRACT
BAR
RULE)NO PETITION QUESTIONING
THE MAJORITY STATUS OF THE
INCUMBENT
EXCLUSIVE
BARGAINING
REPRESENTATIVE
SHALL BE ENTERTAINED AND NO
CERTIFICATION ELECTION SHALL
BE
CONDUCTED
BY
THE
DEPARTMENT OUTSIDE OF THE

SIXTY-DAY PERIOD IMMEDIATELY


BEFORE THE DATE OF EXPIRY OF
SUCH FIVE-YEAR TERM.
Section 4. Exception to the contract
bar
rule.
Notwithstanding
its
registration, a collective bargaining
agreement shall not constitute a bar to
a certification election where it is found
in appropriate proceedings before the
Regional Director that any of the
following conditions exist:
(a) The agreement
contains provisions
lower than the
standards fixed by law;
or
(b) The documents
supporting its
registration are
falsified, fraudulent or
tainted with
misrepresentation.
ALU vs. Ferrer-Calleja, 173 SCRA
178
CONTRACT BAR RULE DOES NOT
APPLY WHERE THE CBA WAS NOT
DULY SUBMITTED IN ACCORDANCE
WITH LAW. Moreover, there is no
proof tending to show that the CBA has
been posted in at least 2 conspicuous
places in the company at least 5 days
prior to the ratification, and that the
same was ratified by a majority of the
members of the union.
Perusal of the facts show that the CBA
was defective, and hence unproductive
of the legal effects of a certified CBA.
Note
that
the
Labor
unions
representation
was
in
itself
questionable, and that there was
precipitate haste in recognizing the
union based on an unsubstantiated and
self-serving claim that it represented
the majority of the employees in the
bargaining unit. Moreover, there was
an apparent and suspicious hurry in the
formulation and finalization of the CBA.
Hence: IF NOT CERTIFIED AND FILED
WITH THE BLR, the representation issue
may be questioned by another union.
5.3 Retroactivity
Dept. Order No. 9, Rule XIV, sec. 3
Any agreement on such other provisions
entered into within six (6) months from the
date of expiry of such provisions shall
retroact to the day immediately following
such date. If any such provisions are

A L E X Y L L E R O S E G A R S U L A C O N C E P C I O N P a g e | 16
entered into beyond six months, the
parties shall agree on the duration of
retroactivity. In case of a deadlock in the
renegotiation of the agreement, the parties
may exercise their rights under the Code.
In case of renegotiation, all requirements
for registration prescribed under the two
immediately preceding sections shall be
complied with, whichever is applicable,
except payment of the registration fee.
Union of Filipro Employees vs. NLRC,
192 SCRA 397, at 425
In the aforecited case, the Court only
pointed out that, it is not right for union
members to argue that they cannot be
covered by the past and the new CBAs both
containing
the
same
closed-shop
agreement for acts committed during the
interregnum. What as emphasized by
this Court is that in no case should
there be a period
in which no
agreement would govern at all. But
nowhere in the said pronouncement
did We rule that every CBA contracted
after the expiry date of the previous
CBA must retroact to the day following
such date. Hence, it is proper to rule that
in the case at bar, the clear and
unmistakable terms of Articles 253 and
253-A must be deemed controlling.
Articles 253 and 253-A mandate the parties
to keep the status quo and to continue in
full force and effect the terms and
conditions of the existing agreement during
the 60-day period prior to the expiration of
the old CBA and/or until a new agreement
is reached by the parties. Consequently,
there being no new agreement reached,
the automatic renewal clause provided for
by the law which is deemed incorporated in
all CBAs, provides the reason why the new
CBA can only be given a prospective effect.
Petitioner claims that because of the
prospective effect of the CBA, union
members were deprived of substantial
amount of monetary benefits which they
could have enjoyed had the CBA be given
retroactive effect.
This would include
backwages, the immediate effects of the
mandated wage increase on the fringe
benefits such as the 13th and 14th month
pay, overtime premium, and right to
differential pay, leaves, etc. This Court, is
not unmindful of these. Nevertheless, We
are convinced that the CBA formulated by
public respondent is fair, reasonable and
just. Even if prospective in effect, said CBA
still entitles the Nestle workers and
employees reasonable compensation and
benefits which, in the opinion of this Court,
is one of the highest, if not the highest in
the industry. Petitioner did not succeed in
overcoming the presumption of regularity
in
the
performance
of
the
public

respondents functions.
Even if the
resolution fell short of meeting the
numerous demands of the union, the
petitioner failed to establish that public
respondent committed grave abuse of
discretion in not giving the CBA a
retrospective
effect.

6.

Violations of the CBA (Art. 261)


Question:

Is the violation of the CBA


provisions a ULP as to allow
the union to strike?

Answer: It depends on whether the


violation is gross in character or not. If
gross, then ULP and the union may strike.
If not gross, then non-strikeable and must
be referred to the grievance machinery.
Hence:
6.1 Generally: Grievances
arising
from
interpretation
or
implementation of the
CBA
is
no
longer
considered ULP and
hence, non-strikeable.
Must be referred to
grievance
machinery
and
voluntary
arbitrators

6.2

Exception:

Strikeable issue when


there is gross and
flagrant
refusal
to
comply
with
the
economic provisions of
the CBA

Article 261, Labor Code. Jurisdiction of


Voluntary Arbitrators or panel of Voluntary
Arbitrators. -- The Voluntary Arbitrator or
panel of voluntary arbitrators shall have
original and exclusive jurisdiction to hear
and decide all unresolved grievances arising
from interpretation or implementation of the
Collective Bargaining Agreement and those
arising
from
the
interpretation
or
enforcement of company personnel policies
referred to in the immediately preceding
article. Accordingly, violations of a
Collective
Bargaining
Agreement,
except those which are gross in
character, shall no longer be treated as
unfair labor practices and shall be
resolved as reviances under the
Collective Bargaining Agreement. For
purposes
of
this
article,
gross
violations of the Collective Bargaining
Agreement shall mean flagrant and/or
malicious refusal to comply with the
economic
provisions
of
such

A L E X Y L L E R O S E G A R S U L A C O N C E P C I O N P a g e | 17
agreement.

7. Substitutionary Doctrine
Benguet Consolidated vs. BCI Ees Union,
23 SCRA 465
The employees cannot revoke the validly
executed CBA with their employer by the
simple
expedient
of
changing
their
bargaining representative.
The CBA is
binding for the period specified therein, but
the new agent may bargain for the
shortening of the period.

An innocent transferee of a business


concern has no liability to the employees
either with respect to continuing them in
employment or with respect to the past ULP
of previous owner.
Exceptions to above general rule:
a) By virtue of obligations assumed under
the contract.
b) Liability arises because of new owners
participation in defeating the rights of the
employees. In such instance, he is treated
as in the same position of a tortfeasor.

But the substitutionary doctrine applies only


E. Razon vs. Secretary of Labor, 222
to the employees of the unit, not to the new
SCRA 1
agent which is not bound by the purely
personal undertakings of the displaced agent A CBA is a contract in personam, and therefore, not
like the no-strike clause in the CBA. enforceable against the successor-employer. In
rehiring the workers of the old employer, the
successor-employer has the right to consider them
8. Effect:
(w/ respect to successor- as new employees. The old employer, to whom
employer)
years of service had been rendered by its suddenly
jobless employees, had the corresponding obligation
to pay them their respective separation pay.
General rule: