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Title V COVERAGE Article 243. Coverage and employees right to self-organization. All persons employed in commercial, ind strial and agric lt ral enterprises and in religio s, charita!le, medical, or ed cational instit tions, "hether operating for profit or not, shall have the right to self-organization and to form, #oin, or assist la!or organizations of their o"n choosing for p rposes of collective !argaining. Am! lant, intermittent and itinerant "or$ers, self-employed people, r ral "or$ers and those "itho t any definite employers may form la!or organizations for their m t al aid and protection. %As amended !y &atas 'am!ansa &ilang (), *ay 1, 1+,)-. ........ 1. ORGANIZING IN GENERAL /he rights to organize and to !argain, in a general sense, are given not e0cl sively to employees. 1ven "or$ers "ho are not employees of any partic lar employer may form their organizations to protect their interests. 2nder Art. 243 of this Code, the right to organize refers also to forming, #oining or assisting a labor organization. Connected to Art. 243 this right carries "ith it the right to engage in gro p action, provided it is peacef l, to s pport the organizations o!#ective "hich is not necessarily !argaining ! t, simply, to aid and protect its mem!ers. & t this $ind of gro p action m st !e differentiated from stri$e "hich, !eca se it is "or$ stoppage, m st o!serve certain reg lation4 other"ise, the stri$e may !e declared illegal and its leaders may !e thro"n o t of their #o!s. 1.1 Coverage of the 5ight to 6rganize4 10ceptions /he right to form, #oin or assist a la!or organization is granted to all $inds of employees of all $inds of employers7p !lic or private, profit or non-profit, commercial or religio s. /heir s al form of organization is a nion and the s al p rpose is collective !argaining "ith their employers. & t the seemingly all-incl sive coverage of 8all persons9 in Article 243 act ally admits e0ceptions. 2nder Art. 24:, for instance, managerial employees, regardless of the $ind of organization "here they are employed, may not #oin, assist or form any la!or organization, meaning a la!or nion. Accordingly, managerial employees cannot, in the a!sence of an agreement to the contrary, !e allo"ed to share in the concessions o!tained !y the la!or nion thro gh collective negotiation. 6ther"ise, they "o ld !e e0posed to the temptation of coll ding "ith the nion d ring the negotiations to the detriment of the employer. ;o"ever, there is nothing to prevent the employer from granting !enefits to managerial employees e< al to or higher than those afforded to nion mem!ers. = pervisors are allo"ed to organize, ! t they cannot for, #oin or assist a ran$-and-file nion. 2. RIGHT TO ORGANIZE CANNOT BE BARGAINED AWAY Altho gh "e have pheld the validity of the C&A as the la" among the parties, its provisions cannot override "hat is e0pressly provided !y la" that only managerial employees are ineligi!le to #oin, assist or An employee of s ch a cooperative "ho is a mem!er and co-o"ner thereof cannot invo$e the right to collective !argaining for certainly an o"ner cannot !argain "ith himself or his co-o"ners. ;o"ever, in so far as it involves cooperatives "ith employees "ho are not mem!ers or co-o"ners thereof, certainly s ch employees are entitled to e0ercise the rights of all "or$ers to organization, collective !argaining, negotiations and others as are enshrined in the Constit tion and e0isting la"s of the co ntry. An another case, the co rt clarified that it is the fact of o"nership of the cooperative, and not involvement in the management thereof, "hich dis< alifies a mem!er from #oining any la!or organization "ithin the cooperative. /h s, irrespective of the degree of their participation in the act al management of the cooperative, all mem!ers thereof cannot form, assist or #oin a la!or organization for the p rpose of collective !argaining. & t mem!er-employees of a cooperative may "ithdra" as mem!ers of the cooperative in order to #oin a la!or nion. *em!ership in a cooperative is vol ntary4 inherent in it is the right not to #oin. 4.1 10ception to 10ceptionD Association, not 2nion Ehile the mem!ers of a cooperative "ho are also its employees cannot nionize for !argaining p rposes, the la" does not prohi!it them from forming an association for their m t al aid and protection as employees. form any la!or organization. /herefore, regardless of the challenged employees> designations, "hether they are employed as = pervisors or in the confidential payrolls, if the nat re of their #o! does not fall nder the definition of ?managerial? as defined in the @a!or Code, they are eligi!le to !e mem!ers of the !argaining nit and to vote in the certification election. /heir right to self-organization m st !e pheld in the a!sence of an e0press provision of la" to the contrary. At cannot !e c rtailed !y a collective !argaining agreement. 3. EMPLOYEES OF NONPROFIT INSTITUTIONS 2nder Article 243 of the @a!or Code, the ran$-and-file employees of non-profit medical instit tions are permitted to form, organize or #oin la!or nions of their choice for p rposes of collective !argaining. Af the nion has complied "ith the re< isites provided !y la" for calling a certification election, it is inc m!ent pon the B6@1 5egional Birector to cond ct s ch certification election to ascertain the !argaining representative of the hospital employees. . E!CEPTION" COOPERATIVE EMPLOYEE#MEMBERS OF A

A cooperative is !y its nat re different from an ordinary ! siness concern !eing r n either, !y persons, partnerships or corporations. Ats o"ners andCor mem!ers are the ones "ho r n and operate the ! siness "hile the others are its employees. As a!ove stated, irrespective of the name of shares o"ned !y its mem!ers they are entitled to cast one vote each in deciding pon the affair of the cooperative. /heir share capital earn limited interests. /hey en#oy special privileges as e0emption from income ta0 and sales ta0es, preferential right to s pply their prod cts to =tate agencies and even e0emption from minim m "age la"s.

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B.6. Fo. 4)-)3 allo"s and defines a 8"or$ers association9 as one "hich is organized for the m t al aid and protection of its mem!ers or for any legitimate p rpose other than collective !argaining. $. E!CEPTION" INTERNATIONAL ORGANIZATIONS A certification election cannot !e cond cted in an international organization "hich the 'hilippine Government has granted imm nity from local # risdiction. /he grant of s ch imm nity is a political < estion "hose resol tion !y the e0ec tive !ranch of government is concl sive pon the co rts
%1- 8International 6rganization9 and 8Specialized Agencies97/he term ?international organization? is generally sed to descri!e an organization set p !y agreement !et"een t"o or more states. 2nder contemporary international la", s ch organizations are endo"ed "ith some degree of international legal personality s ch that they are capa!le of e0ercising specific rights, d ties and po"ers. /hey are organized mainly as a means for cond cting general international ! siness in "hich the mem!er states have an interest. /he 2nited Fations, for instance, is an international organization dedicated to the propagation of "orld peace. ?=pecialized agencies? are international organizations having f nctions in partic lar fields. /he term appears in Articles :( and 33 of the Charter of the 2nited Fations. %2- Principles Underlying the Grant of International Immunities to International Organizations7/here are !asically three propositions nderlying the grant of international imm nities to international organizations. /hese principles, contained in the A@6 *emorand m are stated th sD 1- international instit tions sho ld have a stat s "hich protects them against control or interference !y any one government in the performance of f nctions for the effective discharge of "hich they are responsi!le to democratically constit ted international !odies in "hich all the nations concerned are represented4 2- no co ntry sho ld derive any national financial advantage !y levying fiscal charges on common international f nds4 and 3the international organization sho ld, as a collectivity of =tates mem!ers, !e accorded the facilities for the cond ct of its official ! siness c stomarily e0tended to each other !y its individ al mem!er =tates. /he theory !ehind all three propositions is said to !e essentially instit tional in character. ?At is not concerned "ith the stat s, dignity or privileges of individ als, ! t "ith the elements of f nctional independence necessary to free international instit tions from national control and to ena!le them to discharge their responsi!ilities impartially on !ehalf of all their mem!ers. /he raison d>etre for these imm nities is the ass rance of nimpeded performance of their f nctions !y the agencies concerned. %3- Labors Basic Rights Remain7/he imm nity of Anternational Catholic *igration Commission %AC*C- and the Anternational 5ice 5esearch Anstit tion %A55A- from local # risdiction !y no means deprives la!or of its !asic rights, "hich are g aranteed !y Article AA, =ection 1,, Article AAA, =ection ,, and Article HAAA, =ection 3, of the 1+,( Constit tion4 and implemented !y Articles 243 and 243 of the @a!or Code. %4- ertification !lection Barred by Immunity 7/he imm nity granted !eing ?from every form of legal process e0cept in so far as in any partic lar case they have e0pressly "aived their imm nity,? it is inacc rate to state that a certification election is !eyond the scope of that imm nity for the reason that it is not a s it against AC*C. A certification election cannot !e vie"ed as an independent or isolated process. At co ld trigger off a series of events in the collective !argaining process together "ith related incidents andCor concerted activities, "hich co ld inevita!ly involve AC*C in the ?legal process,? "hich incl des 8any penal, civil and administrative proceedings.9 /he event ality of Co rt litigation is neither remote and from "hich international organizations are precisely shielded to safeg ard them from the disr ption of their f nctions. Cla ses on # risdictional imm nity are said to !e standard provisions in the constit tions of international 6rganizations. 8/he imm nity covers the organization concerned, its property and its assets...9

:.1 Eaiver of Amm nity Eaiver of its imm nity is discretionary to A55A. Eitho t s ch e0press "aiver the F@5C or its la!or ar!iters have no # risdiction over A55A even in cases of alleged illegal dismissal of any of its employees. :.2 Ioreign Eor$ers
Ioreigners, "hether nat ral or # ridical, as "ell as foreign corporations are strictly prohi!ited from engaging directly or indirectly in all forms of trade nion activities. ;o"ever, aliens "or$ing in the co ntry "ith valid "or$ permits may e0ercise the right to self-organization if they are nationals of a co ntry that grants the same or similar rights to Iilipino "or$ers. %Art. 23+-

%. E!CEPTION" RELIGIOUS OB&ECTORS' IGLESIA NI CRISTO MEMBERS 2nder the And strial 'eace Act %1+:3- "hich preceded the @a!or Code %and even nder the present Code- the employer and the nion co ld enter into a 8closed shop9 agreement "hich "o ld compel employees to !ecome nion "or$ers as a condition of contin ed employment. & t in 1+31 5.A. Fo. 33:) "as passed to e0empt from s ch comp lsory nion mem!ership the follo"ers of any religio s sect %s ch as the Aglesia ni Cristo- "hose teachings for!id mem!ership in la!or nions. /he constit tionality of 5.A. Fo. 33:) "as pheld !y the = preme Co rt in "ictoriano #$ !lizalde. At may not !e amiss to point o t here that the free e0ercise of religio s profession or !elief is s perior to contract rights. An case of conflict, the latter m st, therefore, yield to the former. 3.1 Boes the 10emption =till =tandJ 3.2 Aglesia Fi Cristo *em!ers *ay Iorm and Koin 6"n 2nion ........ Article 244. 5ight of employees in the p !lic service. 1mployees of government corporations esta!lished nder the Corporation Code shall have the right to organize and to !argain collectively "ith their respective employers. All other employees in the civil service shall have the right to form associations for p rposes not contrary to la". %As amended !y 10ec tive 6rder Fo. 111, Becem!er 24, 1+,3-. ........ 1. GOVERNMENT EMPLOYEES( RIGHT TO ORGANIZE' LIMITATIONS /he highest la" of the land g arantees to government employees the right to organize and to negotiate, ! t not the right to stri$e. 1.1 @imited ' rpose /he e0tent of the government employees> right of self-organization differs significantly from that of employees in the private sector. /he latter>s right of self-organization, i.e., ?to form, #oin or assist la!or organizations for p rposes of collective !argaining,? admittedly incl des the right to deal and negotiate "ith their respective employers in order to fi0 the terms and conditions of employment and also, to engage in concerted activities for the attainment of their o!#ectives, s ch as stri$es, pic$eting, !oycotts. & t the right of government employees to ?form, #oin or assist employees organizations of their o"n choosing? nder 10ec tive 6rder Fo. 1,) is not regarded as e0isting or availa!le for ?p rposes of collective

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!argaining,? ! t simply ?for the f rtherance and protection of their interests.? An other "ords, the right of Government employees to deal and negotiate "ith their respective employers is not < ite as e0tensive as that of private employees. 10cl ded from negotiation !y government employees are the ?terms and conditions of employment...that are fi0ed !y la",? it !eing only those terms and conditions not other"ise fi0ed !y la" that ?may !e s !#ect of negotiation !et"een the d ly recognized employees> organizations and appropriate government a thorities.?
Beclared to !e >not negotia!le> are matters ?that re< ire appropriation of f nds4? e.g., increase in salary emol ments and other allo"ances, car plan, special hospitalization, medical and dental services, increase in retirement !enefits %=ec. 3, 5 le LAAA-, and those ?that involve the e0ercise of management prerogatives4? e.g., appointment, promotion, assignmentCdetail, penalties as a res lt of disciplinary actions, etc. %=ec. 4, Ad.- Considered negotia!le are s ch matters as sched le of vacation and other leaves, "or$ assignment of pregnant "omen4 recreational, social, athletic, and c lt ral activities and facilities, etc. %=ec. 2, Ad.-. e0ercised in accordance "ith la", i.e. are s !#ect !oth to ?Civil =ervice @a" and r les? and ?any legislation that may !e enacted !y Congress,? that ?the resol tion of complaints, grievances and cases involving government employees? is not ordinarily left to collective !argaining or other related concerted activities, ! t to ?Civil =ervice @a" and la!or la"s and proced res "henever applica!le4? and that in case ?any disp te remains nresolved after e0ha sting all availa!le remedies nder e0isting la"s and proced res, the parties may #ointly refer the disp te to the %' !lic =ector @a!or-*anagementCo ncil for appropriate action.? Ehat is more, the 5 les and 5eg lations implementing 10ec tive 6rder Fo. 1,) e0plicitly provide that since the ?terms and conditions of employment in the government, incl ding any political s !division or instr mentality thereof and government-o"ned and controlled corporations "ith original charters are governed !y la", the employees therein shall not stri$e for the p rpose of sec ring changes thereof.

2. REGISTRATION
=ec. (. Government employees> organizations shall register "ith the Civil =ervice Commission and the Bepartment of @a!or and 1mployment. /he application shall !e filed "ith the & rea of @a!or 5elations of the Bepartment "hich shall process the same in accordance "ith the provisions of the @a!or Code of the 'hilippines, as amended. Applications may also !e filed "ith the 5egional 6ffices of the Bepartment of @a!or and 1mployment "hich shall immediately transmit the said applications to the & rea of @a!or 5elations "ithin three %3- days from receipt thereof. =ec. ,. 2pon approval of the application, a registration certificate !e iss ed to the organization recognizing it as a legitimate employees> organization "ith the right to represent its mem!ers and nderta$e activities to f rther and defend its interest. /he corresponding certificates of registration shall !e #ointly approved !y the Chairman of the Civil =ervice Commission and =ecretary of @a!or and 1mployment. %1.6. Fo. 1,)-

1.2 Fo =igning &on s 1mployees and officers of === are not entitled to the signing !on s provided for in the collective negotiation agreement !eca se the process of collective negotiations in the p !lic sector does not encompass terms and conditions of employment re< iring the appropriation of p !lic f nds. /he Co rt reminds the =ocial =ec rity Commission officials that the === f nd is not their money 1.3 10cepted 1mployees 10cepted from the application of 10ec tive 6rder 1,), ho"ever, are 8mem!ers of the Armed Iorces of the 'hilippines, incl ding police officers, policemen, firemen, and #ail g ards9 %=ec. 4-. Ior reasons of sec rity and safety, they are not allo"ed to nionize. A 8high le#el employee9 is one 8"hose f nctions are normally considered policy determining, managerial or one "hose d ties are highly confidential in nat re. A managerial f nction refers to the e0ercise of po"ers s ch asD %1- to effectively recommend s ch managerial actions4 %2- to form late or e0ec te management policies and decisions4 or %3- to hire, transfer, lay-off, recall, dismiss, assign or discipline employees. 1.3a 'rofessors as ran$-and-file employees 'rofessors at the 2niversity of the 'hilippines "ho are not e0ercising managerial or highly confidential f nctions are ran$-and-file employees and may nionize separately from the non-academic personnel. An short, the professors, associate professors and assistant professors of the 2niversity of the 'hilippines are ran$-and-file employees. /he f ll professors, associate professors, assistant professors, instr ctors and the research, e0tension and professional staff may, if so minded, organize themselves into a separate collective !argaining nit. 1.4 5ight to =tri$e
16 Fo. 1,) also concedes to government employees, li$e their co nterparts in the private sector, the right to engage in concerted activities, incl ding the right to stri$e, the e0ec tive order is < ic$ to add that those activities m st !e

3. CERTIFICATION CORPORATION

ELECTION

IN

GOVERNMENT

A certification election to choose the nion that "ill represent the employees may !e cond cted !y the & rea of @a!or 5elations in a government corporation, "hether governed !y the @a!or Code or the Civil =ervice r les. 3.1 1lection of 6fficers in Government 2nions At is < ite clear from this provision that &@5 has the original and e0cl sive # risdiction on all inter- nion and intra- nion conflicts. An intra- nion conflict "o ld refer to a conflict "ithin or inside a la!or nion, and an inter- nion controversy or disp te, one occ rring or carried on !et"een or among nions. /he s !#ect of the case at !ar, "hich is the election of the officers and mem!ers of the !oard of M*MM-*E==, is, clearly, an intra- nion conflict, !eing "ithin or inside a la!or nion. At is "ell "ithin the po"ers of the &@5 to act pon. . WHEN PSLMC MAY RULE ON LEGALITY OF DISMISSAL /he ' !lic =ector @a!or-*anagement Co ncil, created !y 10ec tive 6rder Fo. 1,) %K ne 1, 1+,(- has # risdiction to hear charges of nfair la!or practice filed !y government employees against their employer, e$g$, the 'amantasan ng @ ngsod ng *aynila. An deciding the 2@' charge the '=@*C may also r le on the complainants dismissal if the t"o iss es72@' and dismissal7are navoida!ly interlin$ed. $. UNION#BUSTING IN A GOVERNMENT AGENCY) U.L.P. :.1 1ven /emporary 1mployees *ay 6rganize

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1ven temporary employees en#oy the !asic right to form organization or association for p rposes not contrary to la". 2nder Art. 2((%c- of the @a!or Code, 8any employee, "hether employed for a definite period of not, shall !eginning on his first day of service, !e considered an employee for p rposes of mem!ership in any la!or nion.9 ........ Article 24:. Aneligi!ility of managerial employees to #oin any la!or organization4 5ight of = pervisory 1mployees. - *anagerial employees are not eligi!le to #oin, assist or form any la!or organization. = pervisory employees shall not !e eligi!le for mem!ership in the collective !argaining nit of the ran$-and-file employees ! t may #oin, assist or form separate collective !argaining nits andCor legitimate la!or organizations of their o"n. /he ran$-andfile nion and the s pervisors nion operating "ithin the same esta!lishment may #oin the same federation or national nion. %As amended !y =ection 1,, 5ep !lic Act Fo. 3(1:, *arch 21, 1+,+ and =ection ,, 5ep !lic Act Fo. +4,1 "hich lapsed into la" on *ay 2:, 2))( and !ecame effective on K ne 14, 2))(-. ........ 1. CATEGORIES OF EMPLOYEES 5A 3(1: "hich too$ effect on *arch 21, 1+,+ %1: days after its p !lication in the ?'hilippines Baily An< irer?- provides that altho gh ?s pervisory employees shall not !e eligi!le for mem!ership in a la!or organization of the ran$ and file employees,? they may, ho"ever, ?#oin, assist or form separate la!or organization of their o"n.? 2. INELIGIBILITY OF MANAGERS 2.1 /ypes of *anagerial 1mployees
/he term ?manager? generally refers to ?anyone "ho is responsi!le for s !ordinates and other organizational reso rces.? As a class, managers constit te three levels of a pyramid, namely, top management, middle management, and first-line management "hich is also called s pervisor. &elo" this third level are the operatives or operating employees "ho, "e may add, are also called ran$-and-file. IA5=/-@AF1 *AFAG15= 7 /he lo"est level in an organization at "hich individ als are responsi!le for the "or$ of others is called first-line or firstlevel management. Iirst-line managers direct operating employees only4 they do not s pervise other managers. 10amples of first-line managers are the ?foreman? or prod ction s pervisor in a man fact ring plant, the technical s pervisor in a research department, and the clerical s pervisor in a large office. Iirst-level managers are often called s pervisors. *ABB@1 *AFAG15= 7 /he term middle management can refer to more than one level in an organization. *iddle managers direct the activities of other managers and sometimes also those of operating employees. *iddle managers> principal responsi!ilities are to direct the activities that implement their organizations> policies and to !alance the demands of their s periors "ith the capacities of their s !ordinates. A plant manager in an electronics firm is an e0ample of a middle manager. /6' *AFAG15= 7 Composed of a comparatively small gro p of e0ec tives, top management is responsi!le for the overall management of the organization. At esta!lishes operating policies and g ides the organization>s interactions "ith its environment. /ypical titles of top managers are ?chief e0ec tive officer,? ?president,? and ?senior vice-president.? Act al titles vary from one organization to another and are not al"ays a relia!le g ide to mem!ership in the highest management classification. As can !e seen from this description, a distinction e0ists !et"een those "ho have the a thority to devise, implement and control strategic and operational policies %top and middle managers- and those "hose tas$ is simply to ens re that s ch policies are carried o t !y the ran$-and-file employees of an organization %first-level managersCs pervisors-. Ehat disting ishes them from the ran$-and-file employees is that they act in the interest of the employer in s pervising s ch ran$-and-file employees. ?*anagerial employees? may therefore !e said to fall into t"o distinct categoriesD the ?managers? per se, "ho compose the former gro p descri!ed a!ove, and the ?s pervisors? "ho form the latter gro p. Ehether they !elong to the first or the second category, managers, #is%a%#is employers, are, li$e"ise, employees.

2.2 Constit tionality of the 'rohi!ition /he < estion is "hether the first sentence of Art. 24: of the @a!or Code, prohi!iting managerial employees from forming, assisting or #oining any la!or organization, is constit tional in light of Art. AAA, =ec. , of the Constit tion "hich providesD
/he right of the people, incl ding those employed in the p !lic and private sectors, to form nions, association, or societies for p rposes not contrary to la" shall not !e a!ridged.

/he present Article 24: is the res lt of the amendment of the @a!or Code in 1+,+ !y 5.A. Fo. 3(1:, other"ise $no"n as the ;erreraLeloso @a". 2nli$e the And strial 'eace Act or the provisions of the @a!or Code "hich it s perseded, 5.A. Fo. 3(1: provides separate definitions of the terms ?managerial? and ?s pervisory employees? %=ee Art. 212NmO-. Altho gh the definition of ?s pervisory employees? seems to have !een nd ly restricted to the last phrase of the definition in the And strial 'eace Act, the legal significance given to the phrase ?effectively recommends? remains the same. An fact, the distinction !et"een top and middle managers, "ho set management policy, and front-line s pervisors, "ho are merely responsi!le for ens ring that s ch policies are carried o t !y the ran$ and file, is artic lated in the present definition.
/he rationale for this inhi!ition has !een stated to !e, !eca se if these managerial employees "o ld !elong to or !e affiliated "ith a 2nion, the latter might not !e ass red of their loyalty to the 2nion in vie" of evident conflict of interests. /he 2nion can also !ecome company-dominated "ith the presence of managerial employees in 2nion mem!ership.

2.2a 6ther 6pinions


K stice ' no f rther airs a "arningD 8/o declare Article 24: of the @a!or Code nconstit tional c ts deep into o r e0isting ind strial life and "ill open the floodgates to nionization at all levels of the ind strial hierarchy. = ch a r ling "ill "rea$ havoc on the e0isting set- p !et"een management and la!or. Af all managerial employees "ill !e allo"ed to nionize, then all "ho are in the payroll of the company, starting from the president, vice-president, general managers and everyone, "ith the e0ception of the directors, may go on stri$e or pic$et the employer. Company officers "ill #oin forces "ith the s pervisors and ran$-and-file.9

3. EVOLUTION OF SUPERVISORS( RIGHT TO ORGANIZE 2nli$e managers, s pervisors can nionize. 3.1 Iirst 'eriodD 2nder the And strial 'eace Act

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/he pro!lem "as that altho gh the And strial 'eace Act defined a 8s pervisor,9 it failed to define a 8manager9 or 8managerial employee.9 =o the < estion aroseD Bid the "ord 8s pervisor9 incl de 8manager9J Co ld managers also nionizeJ An a case involving Calte0 managers, the Co rt ans"ered affirmatively. 3.2 =econd 'eriodD 2nder the @a!or Code &efore Amendment !y 5.A. Fo. 3(1: /his time the < estion "asD Bid Pmanagerial employee9 incl de 8s pervisor9J Eere s pervisors also !anned from nionizingJ Qes. /he prohi!ition "as applied to s pervisors in the case of Bulletin Publishing orp$ "$ Sanchez, 144 =C5A 42,, decided on 6cto!er (, 1+,3. 3.3 /hird 'eriodD 2nder the @a!or Code as Amended !y 5A 3(1: 5.A. Fo. 3(1: presents a compromise form laD retain the ineligi!ility of managerial employees ! t revive the right of s pervisory employees to nionize. . DEFINITION OF MANAGER AND SUPERVISOR 2nli$e in the And strial 'eace Act and the @a!or Code !efore s ch amendment, the po"er to decide on managerial acts is no" separated from the po"er to recommend those managerial acts, s ch as laying do"n policy, hiring or dismissing employees, etc. A s pervisor has the po"er only to recommend "hile a managerial employee has the po"er to decide and do those acts. & t to ma$e one a s pervisor, the po"er to recommend m st not !e merely ro tinary or clerical in nat re ! t re< ires the se of independent # dgment. An other "ords, the recommendation is %1discretionary or # dgmental %not clerical-, %2- independent %not a dictation of someone else-, and %3- effective %given partic lar "eight in ma$ing the management decision-. Af these < alities are lac$ing or, "orse, if the po"er to recommend is a!sent, then the person is not really a s pervisor ! t a ran$-and-file employee and therefore !elongs or sho ld !elong to a ran$-and-file organization. =imilarly, a so-called manager, no matter ho" his position is titled, is not really a manager in the eyes of the la" if he does not possess managerial po"ers %to lay do"n and e0ec te management policies andC or to hire, transfer, s spend, lay-off, recall, discharge, assign or discipline employees-. Af he can only recommend the e0ercise of any of these po"ers, he is only a s pervisor, hence, may #oin, assist or form a s pervisors organization. $. TEST OF SUPERVISORY STATUS
/he test of ?s pervisory? or ?managerial stat s? depends on "hether a person possesses a thority to act in the interest of his employer in the matter specified in Article 212 %$- of the @a!or Code and =ection 1 %m- of its Amplementing 5 les and "hether s ch a thority is not merely ro tinary or clerical in nat re, ! t re< ires the se of independent # dgment. /h s, "here s ch recommendatory po"ers as in the case at !ar, are s !#ect to eval ation, revie" and final action !y the department heads and other higher e0ec tives of the company, the same, altho gh present, are not effective and not an e0ercise of independent # dgment as re< ired !y la". At is the nat re of an employee>s f nctions and not the nomenclat re or title given to his #o! "hich determines "hether he has ran$-and-file or managerial stat s. Among the characteristics of managerial ran$ areD %1- ;e is not s !#ect to the rigid o!servance of reg lar office ho rs4 %2- ;is "or$ re< ires the consistent e0ercise of discretion and # dgment in its performance4 %3- the o tp t prod ced or the res lt accomplished cannot !e standardized in relation to a given period of time4 %4- ;e manages a c stomarily recognized department or s !division of the esta!lishment, c stomarily and reg larly directing the "or$ of other employees therein4 %:- ;e either has the a thority to hire or discharge other employees or his s ggestions and recommendations as to hiring and discharging, advancement and promotion or other change of stat s of other employees are given partic lar "eight4 and %3- As a r le, he is not paid ho rly "ages nor s !#ected to ma0im m ho rs of "or$.

:.1 /he 'o"er to 5ecommend /he po"er to recommend, in order to < alify an employee as a s pervisor, m st not only !e effective ! t sho ld re< ire the se of independent # dgment. At sho ld not !e merely of a ro tinary or clerical nat re. :.2 10amples of Aneffective or Clerical 5ecommendation %. SEGREGATION OF RAN*#AND#FILE AND SUPERVISORS Article 24: allo"s s pervisory employees to form, #oin, or assist separate la!or organizations of their o"n, ! t they are not eligi!le for mem!ership in a la!or organization of the ran$-and-file employees. Feither may a ran$-and-file #oin a nion of s pervisors. /his policy of segregating the s pervisors nion from that of the ran$-and-file is fo nded on fairness to the employees themselves. At "ill !e do !ly detrimental to the employer if the s pervisors and the ran$-and-file, as mem!ers of only one nion, co ld ta$e a common stand against the employer. 3.1 1ffects of ;aving *i0ed *em!ership A nion "hose mem!ership is a mi0t re of s pervisors and ran$-andfile is not and cannot !ecome a legitimate la!or organization. At cannot petition for a certification election, m ch less as$ to !e recognized as the !argaining representative of employees.
/he @a!or Code has made it a clear stat tory policy to prevent s pervisory employees from #oining la!or organizations consisting of ran$-and-file employees as the concerns "hich involve mem!ers of either gro p are normally disparate and contradictory. Clearly, !ased on Article 24:, a la!or organization composed of !oth ran$and-file and s pervisory employees is no la!or organization at all. At cannot, for any g ise or p rpose, !e a legitimate la!or organization. Fot !eing one, an organization "hich carries a mi0t re of ran$-and-file and s pervisory employees cannot possess any of the rights of a legitimate la!or organization, incl ding the right to file a petition for certification election for the p rpose of collective !argaining. At !ecomes necessary, therefore, anterior to the granting of an order allo"ing a certification election, to in< ire into the composition of any la!or organization "henever the stat s of the la!or organization is challenged on the !asis of Article 24: of the @a!or Code. /he rationale !ehind the Code>s e0cl sion of s pervisors from nions of ran$and-file employees is that s ch employees, "hile in the performance of s pervisory f nctions, !ecome the alter ego of management in the ma$ing and the implementing of $ey decisions at the s !-managerial level. Certainly, it "o ld !e diffic lt to find nity or m t ality of interests in a !argaining nit consisting of a mi0t re of ran$-and-file and s pervisory employees. And this is so !eca se the f ndamental test of a !argaining nit>s accepta!ility is "hether or not s ch a nit "ill !est advance to all employees "ithin the nit the proper e0ercise of their collective !argaining rights. /he Code itself has recognized this, in preventing s pervisory employees from #oining nions of ran$-and-file employees.

3
3.2 ;o" *anyJ ;o" Ie"J 3.3 Allegal *i0ed *em!ership * st &e 5aised and 'roved 3.4 Cancellation of 2nion 5egistration on Gro nd of Ancl sion of Bis< alified 'ositionsD Ehat needs to !e 'roved
Ehat is essential is the nat re of the employees f nction and not the nomenclat re or title given to the #o! "hich determines "hether the employee has ran$-and-file or managerial stat s or "hether he is a s pervisory employee.

(.2 =econd ="ingD 10cl sion from 5an$-and-Iile (.3 /hird ="ingD Ancl sion Among = pervisors (.4 Io rth ="ingD Ancl sion Among *onthly 'aid 5an$-and-Iile (.4a @imited 10cl sion4 Boctrine of Fecessary Amplication A confidential employee is one entr sted "ith confidence on delicate matters, or "ith the c stody, handling, or care and protection of the employer>s property. Ehile Art. 24: of the @a!or Code singles o t managerial employees as ineligi!le to #oin, assist or form any la!or organization, nder the doctrine of necessary implication, confidential employees are similarly dis< alified. /he doctrine of necessary implication means that "hat is implied in a stat te is as m ch a part thereof as that "hich is e0pressed. (.4! /he *etrola! and *eralco = mmationsD 10cl sion from &argaining nit and Closed-shop Cla se
Altho gh Article 24: of the @a!or Code limits the ineligi!ility to #oin, form and assist any la!or organization to managerial employees, # rispr dence has e0tended this prohi!ition to confidential employees or those "ho !y reason of their positions or nat re of "or$ are re< ired to assist or act in a fid ciary manner to managerial employees and hence, are li$e"ise privy to sensitive and highly confidential records.

/he implementing 5 les state that the legal personality of the petitioner nion cannot !e s !#ect to collateral attac$ 8! t may !e < estioned only in an independent petition for cancellation.9 /o s mmarize, the petition for certification election is not the proper for m to raise the iss e of legal personality of the nion. Also, a petition to cancel nion registration cannot !e heard or decided !y the *ed-Ar!iter ! t either the B6@1 5egional Birector for enterpriselevel or the &@5 Birector for national nions. 3.: Affiliation of = pervisors and 5an$-and-Iile 2nions 1ven in affiliating "ith a federation, the nions of the s pervisors and of the ran-and-file sho ld !e segregated.
/he pec liar role of s pervisors is s ch that "hile they are not managers, "hen they recommend action implementing management policy or as$ for the discipline or dismissal of s !ordinates, they identify "ith the interests of the employer and may act contrary to the interests of the ran$-and-file. Ee agree "ith the petitioner>s contention that a conflict of interest may arise in the areas of discipline, collective !argaining and stri$es. *em!ers of the s pervisory nion might ref se to carry o t disciplinary meas res against their co-mem!er ran$-and-file employees. An the area of !argaining, their interests cannot !e considered identical. /he needs of one are different from those of the other. *oreover, in the event of a stri$e, the national federation might infl ence the s pervisors> nion to cond ct a sympathy stri$e on the sole !asis of affiliation. /h s, if the intent of the la" is to avoid a sit ation "here s pervisors "o ld merge "ith the ran$ and-file or "here the s pervisors> la!or organization "o ld represent conflicting interests, then a local s pervisors> nion sho ld not !e allo"ed to affiliate "ith the national federation of nion of ran$-andfile employees "here that federation actively participates in nion activity in the company.

(.4c Eho Are Confidential 1mployeesJ Confidential employees assist and act in a confidential capacity to, or have access to confidential matters of, persons "ho e0ercise managerial f nctions in the field of la!or relations. As s ch, the rationale !ehind the ineligi!ility of managerial employees to form, assist or #oin a la!or nion e< ally applies to them. Confidential employees are those "ho !y reason of their positions or nat re of "or$ are re< ired to assist or act in a fid ciary manner to managerial employees and hence, are li$e"ise privy to sensitive and highly confidential records. &y the very nat re of their f nctions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons "ho e0ercise managerial f nctions in the field of la!or relations. (.4d /he @a!or Fe0 s
/he !road rationale !ehind this r le is that employees sho ld not !e placed in a position involving a potential conflict of interests. ?*anagement sho ld not !e re< ired to handle la!or relations matters thro gh employees "ho are represented !y the nion "ith "hich the company is re< ired to deal and "ho in the normal performance of their d ties may o!tain advance information of the company>s position "ith regard to contract negotiations, the disposition of grievances, or other la!or relations matters.?

3.3 5estriction in Affiliation Clarified in &e La Salle Iirst, the ran$-and-file employees are directly nder the a thority of the s pervisory employees. =econd, the national federation is actively involved in nion activities in the company. Af these t"o conditions are a!sent, the r le prohi!iting s pervisors from affiliating "ith the mother nion of the ran$-and-file nion does not apply.
/he affiliation of t"o local nions in a company "ith the same national federation is not !y itself a negate-on of their independence since in relation to the employer, the local nions are considered as the principals, "hile the federation is deemed to !e merely their agent.

+. CONFIDENTIAL EMPLOYEES (.1 Iirst ="ingD Ancl sion Among 5an$-and-Iile

Art. 24: of the @a!or Code does not directly prohi!it confidential employees from engaging in nion activities. ;o"ever, nder the doctrine of necessary implication, the dis< alification of managerial employees e< ally applies to confidential employees. /he confidential-employee r le # stifies e0cl sion of confidential employees !eca se in the normal co rse of their d ties they !ecome a"are of management policies relating to la!or relations. At m st !e

(
stressed, ho"ever, that "hen the employee does not have access to confidential la!or relations information, there is no legal prohi!ition against confidential employees from forming, assisting, or #oining a nion. (.4e Fe" C&A may incl de employees e0cl ded from old C&A4 10pired C&A may !e *odified, not # st 5ene"ed /he employer and the nion in an enterprise may negotiate and agree "hom to cover in their C&A. And they are free to change their agreementD people e0cl ded !efore may !e incl ded no", or vice versa. ,. SECURITY GUARDS MAY &OIN RAN*#AND#FILE OR SUPERVISORS UNION 2nder the old r les, sec rity g ards "ere !arred from #oining a la!or organization of the ran$-and-file. 2nder 5A 3(1:, they may no" freely #oin a la!or organization of the ran$-and-file or that of the s pervisory nion, depending on their ran$. ........ Article 24:-A. 1ffect of incl sion as mem!ers of employees o tside the !argaining nit. - /he incl sion as nion mem!ers of employees o tside the !argaining nit shall not !e a gro nd for the cancellation of the registration of the nion. =aid employees are a tomatically deemed removed from the list of mem!ership of said nion. %Antrod ced as ne" provision !y =ection +, 5ep !lic Act Fo. +4,1 "hich lapsed into la" on *ay 2:, 2))( and !ecame effective on K ne 14, 2))(-. ........ Article 243. Fon-a!ridgment of right to self-organization. At shall !e nla"f l for any person to restrain, coerce, discriminate against or nd ly interfere "ith employees and "or$ers in their e0ercise of the right to self-organization. = ch right shall incl de the right to form, #oin, or assist la!or organizations for the p rpose of collective !argaining thro gh representatives of their o"n choosing and to engage in la"f l concerted activities for the same p rpose or for their m t al aid and protection, s !#ect to the provisions of Article 234 of this Code. %As amended !y &atas 'am!ansa &ilang (), *ay 1, 1+,)-. ........ 1. CONCEPT OF THE RIGHT TO SELF ORGANIZATION /his is a $ey article that offers an incl sionary definition of the right to self-organization %=.6.- !y saying not "hat it is ! t "hat it incl des. At incl des at least t"o rightsD %1- the right to form, #oin or assist la!or organizations, and %2- the right to engage in la"f l concerted activities. /he 8la!or organization9 may !e a nion or association of employees, as mentioned in Article 212%g-. Ats p rposes may !e collective !argaining %as stated in this Article- or dealing "ith the employer Nas stated in Article 212%g-O. /he right to form la!or organization is t"in to the right to engage in concerted activities. At is "orth noting, finally, that the right to self-organization is granted not only to employees ! t to 8"or$ers,9 "hether employed or not. An fact, constit tionally spea$ing, the right to form associations or societies is a right of the 8people,9 "hether "or$ers or not. Fo criminal prosec tion nder this /itle may !e instit ted "itho t a final # dgment finding that an nfair la!or practice "as committed, having !een first o!tained in the preceding paragraph. B ring the pendency of s ch administrative proceeding, the r nning of the period of prescription of the criminal offense herein penalized shall !e considered interr ptedD 'rovided, ho"ever, that the final # dgment in the administrative proceedings shall not !e !inding in the criminal case nor !e considered as evidence of g ilt ! t merely as proof of compliance of the re< irements therein set forth. %As amended !y &atas 'am!ansa &ilang (), *ay 1, 1+,) and later f rther amended !y =ection 1+, 5ep !lic Act Fo. 3(1:, *arch 21, 1+,+-. ........ 1. CONCEPT OF UNFAIR LABOR PRACTICE As noted at the start of &oo$ L a ma#or aim of la!or relations policy is ind strial democracy "hose realization is most felt in free collective !argaining or negotiation over terms and conditions of employment. & t for !argaining negotiation to !e tr e and meaningf l, the Fo 8person97inside or o tside of government, employer or nonemployer, nionist or non- nionist7may a!ridge these rights. Af a!ridged in the "or$place, the a!ridgment is termed 2@' % nfair la!or practice-. Article 243, is !oth %in mi0ed metaphors-, the concept al mother and the formida!le fortress of the prohi!ition e0po nded in the ne0t three articles. ........ Title VI UNFAIR LABOR PRACTICES C-./te0 I CONCEPT Article 24(. Concept of nfair la!or practice and proced re for prosec tion thereof. 2nfair la!or practices violate the constit tional right of "or$ers and employees to self-organization, are inimical to the legitimate interests of !oth la!or and management, incl ding their right to !argain collectively and other"ise deal "ith each other in an atmosphere of freedom and m t al respect, disr pt ind strial peace and hinder the promotion of healthy and sta!le la!or-management relations. Conse< ently, nfair la!or practices are not only violations of the civil rights of !oth la!or and management ! t are also criminal offenses against the =tate "hich shall !e s !#ect to prosec tion and p nishment as herein provided. = !#ect to the e0ercise !y the 'resident or !y the =ecretary of @a!or and 1mployment of the po"ers vested in them !y Articles 233 and 234 of this Code, the civil aspects of all cases involving nfair la!or practices, "hich may incl de claims for act al, moral, e0emplary and other forms of damages, attorneys fees and other affirmative relief, shall !e nder the # risdiction of the @a!or Ar!iters. /he @a!or Ar!iters shall give tmost priority to the hearing and resol tion of all cases involving nfair la!or practices. /hey shall resolve s ch cases "ithin thirty %3)- calendar days from the time they are s !mitted for decision. 5ecovery of civil lia!ility in the administrative proceedings shall !ar recovery nder the Civil Code.

,
employees, first of all, m st organize themselves. &eca se selforganization is a prere< isite7the life!lood7of ind strial democracy, the right to self-organize has !een enshrined in the Constit tion, and any act intended to "ea$en or defeat the right is regarded !y la" as an offense. /he offense is technically called 8 nfair la!or practice9 %2@'-. @iterally, it does not mean an nfair practice !y la!or ! t a practice nfair to la!or, altho gh the offender may either !e an employer or a la!or organization. /he victim of the offense is not # st the "or$ers as a !ody and the "ell-meaning employers "ho val e ind strial peace, ! t the =tate as "ell. /h s, the attac$ to this constit tional right is considered a crime "hich therefore carries !oth civil and criminal lia!ilities.
A consideration of the entire la" on the matter clearly discloses the intention of the la"ma$er to consider acts "hich are alleged to constit te nfair la!or practices as violations of the la" or offenses, to !e prosec ted in the same manner as a criminal offense. /he reason for this provision is that the commission of an nfair la!or practice is an offense against a p !lic right or interest and sho ld !e prosec ted in the same manner as a p !lic offense. /he reason for the distinction !et"een an nfair la!or practice case and a mere violation of an employer of its contract al o!ligation to"ards an employees is, 0 0 0 that nfair la!or practice cases involve violations of a p !lic right or policy, to !e prosec ted li$e criminal offenses "hereas a !reach of an o!ligation of the employer to his employee is only a contract al !reach to !e redressed li$e an ordinary contract or o!ligation.

1.2 're# dice to ' !lic Anterest not an 1lement of 2.@.'. A sho"ing of pre# dice to p !lic interest is not a re< isite for 2@' charges to prosper. 2. PROSECUTION OF U.L.P. 2nder Art. 24( 2@' has civil as "ell as criminal aspects. /he civil aspect may incl de lia!ility for damages and these may !e passed pon !y a la!or ar!iter. /o prosec te 2@' as criminal offense is not possi!le ntil after finality of # dgment in the la!or case, finding that the respondent indeed committed nfair la!or practice. & t s ch # dgment "ill not serve as evidence of 2@' in the criminal case4 the criminal charge m st !e proved independently from the la!or case. *oreover, "hile only s !stantial evidence is re< ired in la!or case in the F@5C, proof !eyond reasona!le do !t is needed to convict in the criminal case of 2@'. /he criminal charge, states Art. 22,, falls nder the conc rrent # risdiction of the * nicipal or 5egional /rial Co rt. /he same article defines the penalty of fine andC or imprisonment. 2nder Art. 2,+, the penalty shall !e imposed pon the g ilty officers of a corporation, partnership, association or entity. Af the 2@' is committed !y a la!or organization the parties lia!le are those mentioned in Art. 24+. /he offense prescri!es in 24e 3e.0. %Art. 2+)........ C-./te0 II UNFAIR LABOR PRACTICES OF EMPLOYERS Article 24,. 2nfair la!or practices of employers. At shall !e nla"f l for an employer to commit any of the follo"ing nfair la!or practiceD %a- /o interfere "ith, restrain or coerce employees in the e0ercise of their right to self-organization4 %!- /o re< ire as a condition of employment that a person or an employee shall not #oin a la!or organization or shall "ith-dra" from one to "hich he !elongs4 %c- /o contract o t services or f nctions !eing performed !y nion mem!ers "hen s ch "ill interfere "ith, restrain or coerce employees in the e0ercise of their rights to self-organization4 %d- /o initiate, dominate, assist or other"ise interfere "ith the formation or administration of any la!or organization, incl ding the giving of financial or other s pport to it or its organizers or s pporters4 %e- /o discriminate in regard to "ages, ho rs of "or$ and other terms and conditions of employment in order to enco rage or disco rage mem!ership in any la!or organization. Fothing in this Code or in any other la" shall stop the parties from re< iring mem!ership in a recognized collective !argaining agent as a condition for employment, e0cept those employees "ho are already mem!ers of another nion at the time of the signing of the collective !argaining agreement. 1mployees of an appropriate !argaining nit "ho are not mem!ers of

1.1 1lements Commission of nfair la!or practice at the enterprise level needs the presence of certain elementsD first, there is e1/l23e0#e1/l23ee 0el.ti245-i/ !et"een the offender and the offended4 and second, the .6t 724e i5 e8/0e55l3 7e9i4e7 i4 t-e C27e as an act of nfair la!or practice. /he first element is re< ired !eca se 2@' is negation of, a co nteraction to, the right to organize "hich is availa!le only to employees in relation to their employer. Fo organizational right can !e negated or assailed if employer-employee relationship is a!sent in the first place. /he second element is that the act done is prohi!ited !y the Code, specifically in Articles 24, and 231 for an employer and Article 24+ for a la!or organization. Art. 212%$- emphatically defines 8 nfair la!or practice9 as 8any nfair la!or practice as e0pressly defined in this Code.9 Art. 231 amplifies Art. 24,%i- !y stating that violation of a C&A is nfair la!or practice only if the violation is gross in character. /he prohi!ited acts, it sho ld !e stressed, are all related to the "or$ers self-organizational right and to the o!servance of a collective !argaining agreement %C&A-. /he only possi!le e0ception is Art. 24,%f- referring to dismissing or pre# dicing an employee giving testimony nder this Code Nregardless of the s !#ect of the testimonyO. &eca se 2@' is and has to !e related to the right to self-organization and to the o!servance of the C&A, it follo"s that not every nfair act is 8 nfair la!or practice.9 2@', therefore, has a limited, technical meaning !eca se it is a la!or relations concept "ith a stat tory definition. At refers only to acts opposed to "or$ers right to organize. Eitho t that element, the act, no matter ho" nfair, is not nfair la!or practice as legally defined. =tripped of legalese, nfair la!or practice, "hen committed !y the employer, commonly connotes anti%unionism.

+
the recognized collective !argaining agent may !e assessed a reasona!le fee e< ivalent to the d es and other fees paid !y mem!ers of the recognized collective !argaining agent, if s ch non- nion mem!ers accept the !enefits nder the collective !argaining agreementD 'rovided, that the individ al a thorization re< ired nder Article 242, paragraph %o- of this Code shall not apply to the nonmem!ers of the recognized collective !argaining agent4 %f- /o dismiss, discharge or other"ise pre# dice or discriminate against an employee for having given or !eing a!o t to give testimony nder this Code4 %g- /o violate the d ty to !argain collectively as prescri!ed !y this Code4 %h- /o pay negotiation or attorneys fees to the nion or its officers or agents as part of the settlement of any iss e in collective !argaining or any other disp te4 or %i- /o violate a collective !argaining agreement. /he provisions of the preceding paragraph not"ithstanding, only the officers and agents of corporations, associations or partnerships "ho have act ally participated in, a thorized or ratified nfair la!or practices shall !e held criminally lia!le. %As amended !y &atas 'am!ansa &ilang 13), A g st 21, 1+,1-. ........ 1. CONDITIONS PRECEDENT TO U.L.P. CHARGE &efore an employee may !e considered aggrieved !y an alleged nfair la!or practice %2@'- !y an employer, it m st !e demonstrated, firstly, that the in# red party comes "ithin the definition of 8employee9 as that term is defined !y the Code, and secondly, the act charged as 2@' m st fall nder the prohi!ition of Art. 24, %acts of the employer- or 24+ %acts of the nion-. Fonetheless, specific denomination of the act is not necessary to prosec te 2@'. An resolving the < estion of "hether or not an employer committed the act charged in the complaint, it is of no conse< ence, either as a matter of proced re or of s !stantive la", ho" the act is denominated7"hether as a restraint, interference or coercion, or a discriminatory discharge, or as a ref sal to !argain, or even as a com!ination of any or all of these. Ior ho"ever the employers cond ct may !e characterized, "hat is important is that it constit ted an nfair la!or practice. 2. ILO CONVENTION NO. :,
Article 1 1. Eor$ers shall en#oy ade< ate protection against acts of anti- nion discrimination in respect of their employment. 2. = ch protection shall apply more partic larly in respect of acts calc lated to-%a- ma$e the employment of a "or$er s !#ect to the condition that he shall not #oin a nion or shall relin< ish trade nion mem!ership4 %!- ca se the dismissal of or other"ise pre# dice a "or$er !y reason of nion mem!ership or !eca se of participation in nion activities o tside "or$ing ho rs or, "ith the consent of the employer, "ithin "or$ing ho rs. Article 2 1. Eor$ers> and employers> organisations shall en#oy ade< ate protection against any acts of interference !y each other or each other>s agents or mem!ers in their esta!lishment, f nctioning or administration. 2. An partic lar, acts "hich are designed to promote the esta!lishment of "or$ers> organisations nder the domination of employers or employers> organisations, or to s pport "or$ers> organisations !y financial or other means, "ith the o!#ect of placing s ch organisations nder the control of employers or employers> organisations, shall !e deemed to constit te acts of interference "ithin the meaning of this Article.

3. NO U.L.P." ILLUSTRATIVE INSTANCES OF VALID E!ERCISE OF MANAGEMENT RIGHTS /he la" on 8 nfair la!or practices9 is not intended to deprive employers of their f ndamental right to prescri!e and enforce s ch r les as they honestly !elieve to !e necessary to the proper, prod ctive and profita!le operation of their ! siness. For are his rights of selection and discharge of his employees "rested from him !y the Act. 5othen!erg stresses that an employer, s !#ect to the provisions of his contract "ith his employees, has the same f ll meas re of control over his ! siness as he had prior to the enactment of the Eagner Act and ndiminished !y the amended Act. /he only condition imposed pon this control is that it m st not !e e0ercised so as to effect a violation of the Act and its several prohi!itions. 3.1 'ersonnel *ovements As a r le, it is the prerogative of the company to promote, transfer or even demote its employees to other positions "hen the interests of the company reasona!ly demand it. 2nless there are instances "hich directly point to interference !y the company "ith the employees> right to self-organization, the transfer of private respondent sho ld !e considered as "ithin the !o nds allo"ed !y la". I rthermore, altho gh private respondent "as transferred to a lo"er position, his original ran$ and salary remained ndiminished. At is the companys prerogative to promote its employees to managerial positions. *anagerial positions are offices "hich can only !e held !y persons "ho have the tr st of the corporation and its officers. At sho ld not !e prevented from doing so. A promotion "hich is manifestly !eneficial to an employee sho ld not give rise to a grat ito s spec lation that s ch a promotion "as made simply to deprive the nion of the mem!ership of the promoted employee. 3.2 Acceptance of *ass 5esignation Acceptance of a vol ntary resignation is not 2@'. An a Philippine 'irlines case the co rt said that the pilots ?protest retirementCresignation? "as not a concerted activity "hich "as protected !y la". /hey did not ass me the stat s of stri$ers. /hey cannot, therefore, validly claim that the company committed nfair la!or practice. Ehen the pilots vol ntarily terminated their employment relationship "ith the company, they cannot claim that they "ere dismissed. 3.3 Grant of 'rofit-=haring &enefits to Fon-2nion *em!ers *anagement has the prerogative to reg late, according to its discretion and # dgment, all aspects of employment. /his flo"s from the esta!lished r le that la!or la" does not a thorize the s !stit tion of the # dgment of the employer in the cond ct of its ! siness. = ch

1)
management prerogative may !e availed of "itho t fear of any lia!ility so long as it is e0ercised in good faith for the advancement of the employers> interest and not for the p rpose of defeating or circ mventing the rights of employees nder special la"s or valid agreement and are not e0ercised in a malicio s, harsh, oppressive, vindictive or "anton manner or o t of malice or spite. 3.4 Iorced Lacation @eave Ehere the vacation leave "itho t pay, "hich the employer re< ires employees to ta$e in vie" of the economic crisis, is neither malicio s, oppressive or vindictive, 2@' is not committed. 3.: Ass ance of 5 les or 'olicy 1very ! siness enterprise endeavors to increase its profits. An the process, it may adopt or devise means designed to"ards that goal. 1ven as the la" is solicito s of the "elfare of the employees, it m st also protect the right of an employer to e0ercise "hat are clearly management prerogatives. /he free "ill of management to cond ct its o"n ! siness affairs to achieve its p rpose cannot !e denied. 3.3 /a$ing Action Against =lo"do"n 1mployees have the right to stri$e, ! t they have no right to contin e "or$ing on their o"n terms "hile re#ecting the standards desired !y their employer. ;ence, an employer does not commit an nfair la!or practice !y discharging employees "ho engaged in a slo"do"n, even if their o!#ect is a pay increase "hich is la"f l. *oreover, an employer does not violate the act !y discharging only some of the employees "ho participate in the slo"do"n "here he discharges them to serve as an 8e0ample9 to stop the slo"do"n and not for discriminatory reasons. . DETERMINATION OF VALIDITY Fecessarily, determining the validity of an employers act involves an appraisal of his motives.
An employer may treat freely "ith an employee and is not o!liged to s pport his actions "ith a reason or p rpose. ;o"ever, "here the attendant circ mstances, the history of employer>s past cond ct and li$e considerations, co pled "ith an intimate connection !et"een the employer>s action and the nion affiliations or activities of the partic lar employee or employees ta$en as a "hole raise a s spicion as to the motivation for the employer>s action, the fail re of the employer to ascri!e a valid reason therefor may # stify an inference that his ne0plained cond ct in respect of the partic lar employee or employees "as inspired !y the latter>s nion mem!ership or activities. Ehile the presence of this mere s spicion neither ta$es the place of evidence that the employer>s cond ct "as improperly motivated nor dispenses "ith the re< irement of proof of the fact, s ch s spicion, "hen co pled "ith other facts "hich in themselves, might have !een inade< ate to s pport an adverse finding against the employer, may s ffice to s stain a finding that the employer>s action violated the prohi!ition of the Act.

:.1 Anterrogation 'ersistent interrogation of employees to elicit information as to "hat had happened at nion meetings and the identity of the active nion employees "as held as violative of organizational rights of employees. An order that the < estioning of an employee concerning his nion activities "o ld not !e deemed coercive, the employer m st comm nicate to the employee the p rpose of the < estioning, ass re him that no reprisal "o ld ta$e place, and o!tain his participation on a vol ntary !asis. An addition, < estioning m st also occ r in a conte0t free from employer hostility to nion organization and m st not itself !e coercive in nat re. :.2 2.@.'. 1ven &efore 2nion is 5egistered An employer "ho interfered "ith the right to self-organization !efore the nion is registered can !e held g ilty of 2@'. :.3 'rohi!iting 6rganizing Activities A r le prohi!iting solicitation of nion mem!ership in company property is nla"f l if it applies to non-"or$ing time as "ell as to "or$ing time. Ehere ma#ority of the employees live on the premises of the employer and cannot !e reached !y any means or proced res practically availa!le to nion organizers, the employer may !e re< ired to permit non-employee nion organizers to come "ithin its premises, in order to solicit employees. ;o"ever, in the a!sence of sho"ing that the illegal dismissal "as dictated !y anti- nion motives, the same does not constit te an nfair la!or practice as "o ld !e a valid gro nd for stri$e. /he remedy is an action for reinstatement "ith !ac$"ages and damages. Ee have held that nfair la!or practice cases are not, in vie" of the p !lic interest involved, s !#ect to compromises. :.4 Liolence or Antimidation An employer nla"f lly coerced employees !y directing t"o individ als to his office at g n point on the day of representation election after the individ als had informed the employer that they "ere on the premises to vote in the election. :.: 1spionage and = rveillance 6ne form of 8press re9 "hich some over-eager employers sometimes se is the practice of spying pon employees. /his device consists of sing one or a small gro p of employees, or other agents, inspired !y profit opport nism, vengeance or come $indred h man frailty to se his or their access to employees < arters and affairs for the p rpose of spying pon fello" employees and reporting !ac$ to the employer. At is plainly evident that s ch cond ct on the employers part, ho"ever s !tly it may !e accomplished, constit tes interference "ith the employees e0ercise of their rights. Anasm ch as the 8press re9 res lts more from the employees apprehension than from the employers p rpose in spying and the se of its res lt, it has !een held to !e no ans"er to a charge of nfair la!or practice that the fr its of espionage "ere not sed.

$. FIRST U.L.P." INTERFERENCE ;ART. 2 ,<.=> An s mmarized form, the nine 2.@.'. acts of an employer nder Art. 24, areD %1- Anterference, %2- 8yello" dog9 condition, %3- contracting o t, %4- company nionism, %:- discrimination, %3- discrimination !eca se of testimony, %(- violation of d ty to !argaining, %,- paid negotiation, and %+- violation of C&A.

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Ehen an employer engages in s rveillance or ta$es steps leading his employees to !elieve it is going on, a violation res lts !eca se the employees come nder threat of economic coercion or retaliation for their nion activities. 2nla"f l s rveillance "as properly fo nd "here s pervisors "ere present near the place "here nion meeting "as !eing held to chec$ the names of employees leaving the meeting. :.3 1conomic And cements A violation res lts from an employers anno ncement of !enefits prior to a representation election, "here it is intended to ind ce the employees to vote against the nion. At is "ell-settled r le that "hile a representation election is pending, the conferral of employee !enefits for the p rpose of ind cing the employees to vote against a nion is nla"f l. :.( 1mployers 10pression of 6pinion4 /otality of Cond ct Boctrine /he doctrine holds that the c lpa!ility of employers remar$s "as to !e eval ated not only on the !asis of their implications, ! t against the !ac$gro nd of and in con# nction "ith collateral circ mstances.
%1- Letter to indi#idual employees 7At is an act of interference for the employer to send a letter to all employees notifying them to ret rn to "or$ at a time specified therein, other"ise ne" employees "o ld !e engaged to perform their #o!s. Andivid al solicitation of the employees or visiting their homes, "ith the employer or his representative rging the employees to cease nion activity or cease stri$ing, constit tes nfair la!or practice. All the a!ove-detailed activities are nfair la!or practices !eca se they tend to ndermine the concerted activity of the employees, an activity to "hich they are entitled free from the employer>s molestation. %2- Stri(e%brea(ing7Ehen the respondent company offered reinstatement and attempted to ?!ri!e? the stri$ers "ith ?comforta!le cots,? ?free coffee and occasional movies,? ?overtime? pay for ?"or$ performed in e0cess of eight ho rs,? and ?arrangements? for their families, so they "o ld a!andon the stri$e and ret rn to "or$, they "ere g ilty of stri$e-!rea$ing andCor nion! sting and, conse< ently, of nfair la!or practice. %3- 'cts #iolati#e of right to organize7Liolative of the right to organize, form and #oin la!or organizations are the follo"ing actsD the offer of a Christmas !on s to all ?loyal? employees of a company shortly after the ma$ing of a re< est !y the nion to !argain4 "age increases given for the p rpose of mollifying employees after the employer has ref sed to !argain "ith the nion, or for the p rpose of ind cing stri$ing employees to ret rn to "or$4 the employer>s promises of !enefits in ret rn for the stri$ers> a!andonment of their stri$e in s pport of their nion4 and the employer>s statement, made a!o t 3 "ee$s after the stri$e started, to a gro p of stri$ers in a resta rant to the effect that if the stri$ers ret rned to "or$, they "o ld receive ne" !enefits in the form of hospitalization, accident ins rance, profit-sharing, and a ne" ! ilding to "or$ in. %4- )est of interference or coercion 7/he test of "hether an employer has interfered "ith and coerced employees "ithin the meaning of s !section %a%1- is "hether the employer has engaged in cond ct "hich it may reasona!ly !e said tends to interfere "ith the free e0ercise of employees> rights nder section 3 of the Act, and it is not necessary that there !e direct evidence that any employee "as in fact intimidated or coerced !y statements of threats of the employer if there is a reasona!le inference that anti- nion cond ct of the employer does have an adverse effect on self-organization and collective !argaining. %:- )he *totality of conduct+ doctrine 7the letters of the company president to the individ al stri$ers sho ld not !e considered !y themselves alone ! t sho ld !e read in the light of the preceding and s !se< ent circ mstances. /he letters sho ld !e interpreted according to the ?totality of cond ct doctrine,? "here!y the c lpa!ility of an employer>s remar$s has to !e eval ated not only on the !asis of their implicit implications, ! t "ere to !e appraised against the !ac$gro nd of and in con# nction "ith collateral circ mstances.

:., *ass @ayoff Amo nting to 2.@.'. A companys capital red ction efforts, to camo flage the fact that it has !een ma$ing profits, and to # stify the mass lay-off of its employees especially nion mem!ers, "ere an nfair la!or practice "hich can neither !e co ntenanced nor condoned. :.+ @oc$o t or Clos re Amo nting to 2.@.'. A loc$o t, act al or threatened, as a means of diss ading the employees from e0ercising their rights nder the Act is clearly an nfair la!or practice. ;o"ever, to hold an employer "ho act ally or "ho threatens to loc$ o t his employees g ilty of a violation of the Act, the evidence m st esta!lish that the p rpose thereof "as to interfere "ith the employees e0ercise of their rights. An honest closing of ones plant is not a violation of the Act. ;o"ever, cessation of operations, act al or threatened, does constit te an nfair la!or practice, if it is, directly or indirectly, e0pressly or !y inn endo, calc lated or employed to interfere "ith the employees rights nder the Act. 'roof of the employers state of mind, nless it is e0pressed, is often very diffic lt. ;o"ever, it may !e proven !y circ mstantial evidence. /he r le is that it is nla"f l for the employer to threaten its employees "ith moving or sh tting do"n the plant and conse< ent loss of employment, as the res lt of their s pport for the nion. An employer "hich closed its ! siness to p t an end to a nions activities, and "hich made no effort to allo" the employees attempt to e0ercise their right to self-organization and collective !argaining, and even threatening the employees that they "o ld lose their #o!s if they did not cease affiliation "ith the nion, commits nfair la!or practice. :.+a =ale in &ad Iaith
Ehere the sale of a ! siness enterprise "as attended "ith !ad faith, there is no need to consider the applica!ility of the r le that la!or contracts !eing in personam are not enforcea!le against the transferee. /he latter is in the position of tort-feasor having !een a party li$e"ise responsi!le for the damage inflicted on the mem!ers of the aggrieved nion and therefore cannot # stly escape lia!ility.

At is irrational to s ppose that a p rchaser of a man fact ring enterprise is not a"are of the la!or-management sit ation in the firm he !o ght. :.+! Ass mption of 6!ligations !y Fe" Company :.1) = ccessor 1mployer4 'iercing the Corporate Leil Clos re is li$e"ise not legal and the employees cannot !e separated if, in fact, there is no clos re !eca se the 8closed9 department or company reappeared altho gh nder a ne" name. Af the 8ne"9 company is, for instance, engaging in the same ! siness as the closed company or department, or is o"ned !y the same people, and the 8clos re9 is calc lated to defeat the "or$ers organizational right,

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then, the clos re may !e declared a 8s !terf ge9 and the doctrine of s ccessor employer "ill !e applied, that is, the ne" company "ill !e treated as a contin ation or s ccessor of the one that closed. Af s ch !e the case, the separated employees "ill have to !e employed in the 8ne"9 firm !eca se in the first place they sho ld not have !een separated at all. /he 8s ccessor employer9 r ling is an enforcement of the legal reco rse called 8piercing the veil of corporate entity.9
2nder the doctrine of piercing the veil of corporate entity, "hen valid gro nds therefore e0ist, the legal fiction that a corporation is an entity "ith a # ridical personality separate and distinct from its mem!ers or stoc$holders may !e disregarded. An s ch cases, the corporation "ill !e considered as a mere association of persons. /he mem!ers or stoc$holders of the corporation "ill !e considered as the corporation, that is, lia!ility "ill attach directly to the officers and stoc$holders. /he doctrine applies "hen the corporate fiction is sed to defeat p !lic convenience, # stify "rong, protect fra d, or defend crime, or "hen it is made as a shield to conf se the legitimate iss es or "here a corporation is the mere alter ego or ! siness cond it of a person, or "here the corporation is so organized and controlled and its affairs are so cond cted as to ma$e it merely an instr mentality, agency, cond it or ad# nct of another corporation.

5esorting to a r na"ay shop is a 2.@.'. A 8r na"ay9 shop is defined as an ind strial plant moved !y its o"ners from one location to another to escape nion la!or reg lations or state la"s, ! t the term is also sed to descri!e a plant removed to a ne" location in order to discriminate against employees at the old plant !eca se of their nion activities. *oreover, it has !een held that "here a plant removal is for ! siness reasons ! t the relocation is hastened !y anti- nion motivation, the early removal is an nfair la!or practice. At is immaterial that the relocation is accompanied !y a transfer of title to a ne" employer "ho is an alter ego of the original employer. 5 na"ay shop refers to ! siness relocation animated !y anti- nion animus. =ameness of ! siness is not reason eno gh to sho" r n-a"ay shop to pierce the veil of separate corporate entity.
A ?r na"ay shop? is defined as an ind strial plant moved !y its o"ners from one location to another to escape nion la!or reg lations or state la"s, ! t the term is also sed to descri!e a plant removed to a ne" location in order to discriminate against employees at the old plant !eca se of their nion activities. At is one "herein the employer moves its ! siness to another location or it temporarily closes its ! siness for anti- nion p rposes. A ?r na"ay shop? in this sense, is a relocation motivated !y anti- nion anim s rather than for ! siness reasons. *ere o"nership !y a single stoc$holder or !y another corporation of all or nearly all of the capital stoc$ of a corporation is not of itself s fficient gro nd for disregarding the separate corporate personality. /his fiction of corporate entity can only !e disregarded in certain cases s ch as "hen it is sed to defeat p !lic convenience, # stify "rong, protect fra d, or defend crime. /o disregard said separate # ridical personality of a corporation, the "rongdoing m st !e clearly and convincingly esta!lished.

%. SECOND U.L.P." ?YELLOW DOG@ CONDITION ;ART. 2 ,<A=> Contract provisions "here!y an employee agrees that d ring the period of his employment he "ill not !ecome a mem!er of a la!or nion have !een o tla"ed in the 2nited =tates, !y legislation in some states, as "ell as !y Iederal legislation. /he 8yello" dog9 contract is a promise e0acted from "or$ers as a condition of employment that they are not to !elong to, or attempt to foster, a nion d ring their period of employment. An American scheme, the typical yello" dog contract is an at-"ill employment agreement "hich contains, in addition to the s al provisions for employment, the follo"ing three provisionsD %1- a representation !y the employee that he is not a mem!er of a la!or nion4 %2- a promise !y the employee not to #oin a la!or nion4 %3- a promise !y the employee that, pon #oining a la!or nion, he "ill < it his employment. +. THIRD U.L.P." CONTRACTING OUT ;ART. 2 ,<6=> Contracting o t itself, is not 2@'4 it is the ill intention that ma$es it so. An employers contracting o t of "or$ is itself an nfair la!or practice "here motivated !y a desire to pre#ent his employees from organizing and selecting a collective !argaining representative, rid himself of nion men, or escape his stat tory d ty to !argain collectively "ith his employees !argaining representative.
As "e have previo sly held, the company can determine in its !est ! siness # dgment "hether it sho ld contract o t the performance of some of its "or$ for as long as the employer is motivated !y good faith, and the contracting o t m st not have !een resorted to to circ mvent the la" or m st not have !een the res lt of malicio s or ar!itrary action.

,. FOURTH U.L.P." COMPANY#DOMINATION OF UNION ;ART. 2 ,<7=> Bomination of a la!or nion s ally manifests in the follo"ing formsD %a- Initiation of the company union idea. /his may f rther occ r in three stylesD %1- o tright formation !y the employer or his representatives4 %2- employee formation on o tright demand or infl ence !y employer4 and %3- managerially motivated formation !y employees. %!- ,inancial support to the union . An employer commits nfair la!or practice if he defrays the nion e0penses or pays the attorneys fees to the attorney "ho drafted the constit tion and !y-la"s of the nion. %c- !mployer encouragement and assistance. Ammediately granting the nion e0cl sive recognition as a !argaining agent "itho t determining "hether the nion represents the ma#ority of employees is an illegal form of assistance amo nting to nfair la!or practice. %d- Super#isory assistance. /his ta$es the form of soliciting mem!ership, permitting nion activities d ring "or$ing time or coercing employees to #oin the nion !y threats of dismissal or demotion. An employer "as held to have nla"f lly aided a nion !y assisting its attempt to sec re a thorization cards from employees and !y e0ec ting a contract "ith s ch nion "hen it "as not the a thorized representative of the employees.

(.1 Contracting o t restricted !y C&A (.2 5 na"ay =hop

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A la!or nion is company-dominated "here it appears that $ey officials of the company have !een forcing employees !elonging to a rival la!or nion to #oin the former nder pain of dismissal sho ld they ref se to do so4 that hey officials of the company, as "ell as its legal co nsel, have attended the election of officers of the former nion4 that officers and mem!ers of the rival nion "ere dismissed allegedly p rs ant to a retrenchment policy of the company, after they had presented demands for the improvement of the "or$ing conditions despite its alleged retrenchment policy4 and that, after dismissal of the aforesaid officers of the rival la!or nion, the company engages the services of ne" la!orers.

"here only nionists "ere permanently dismissed "hile non nionists "ere not.
@a!or is a person>s means of livelihood. ;e cannot !e deprived of his la!or or "or$ "itho t d e process of la". 5etrenchment very heart of one>s employment. Ehile the right of stri$es at the very heart of an employer to dismiss an employee is conceded in a valid retrenchment, the right differs from and sho ld not !e conf sed "ith the manner in "hich s ch right is e0ercised. At sho ld not !e oppressive and a! sive since it affects one>s person and property. B e process of la" demands nothing less.

:. FIFTH U.L.P." DISCRIMINATION ;ART. 2 ,<e=> Ehat the la" prohi!its is discrimination to enco rage or disco rage mem!ership in a la!or organization. Ehere the p rpose is to infl ence the nion activity of employees, the discrimination is nla"f l. & t discrimination is not the same as differentiation or classification. Ior instance, it is common management practice to classify #o!s and grant them varying levels of pay !enefits pac$age. /hese are valid differentiations that recognize differences in #o! re< irements or contri! tions. /hey are not necessarily discrimination classifia!le as 2@'.
2nder the And strial 'eace Act, to constit te an nfair la!or practice, the discrimination committed !y the employer m st !e in regard to the ?hire or ten re of employment or any term or condition of employment to enco rage or disco rage mem!ership in any la!or organization.? /he e0action, !y the Company, from the stri$ers ret rning to "or$, of a promise not to destroy company property and not to commit acts of reprisal against the 2nionmem!ers "ho did not participate in the stri$e, cannot !e considered as intended to enco rage or disco rage 2nion-mem!ership. /a$ing the circ mstances s rro nding the prescri!ing of that condition, the re< irement !y the Company is act ally an act of self-preservation and designed to ins re the maintenance of peace and order in the Company premises.

+.4 Biscrimination in 5eg larization +.: Biscrimination !y &lac$listing A !lac$list has !een defined as 8a list of persons mar$ed o t for special avoidance, antagonism or enmity on the part of those "ho prepare the list, or those among "hom it is intended to circ late, as "here a trade nion P!lac$lists "or$men "ho ref se to conform to its r les, or "here a list of insolvent or ntr st"orthy persons is p !lished !y a commercial agency or mercantile association.9 Ehen it is resorted to !y a com!ination of employers to prevent employment of employees for nion activities, it may constit te nfair la!or practice. Aside from constit ting an nfair la!or practice, it may give rise to a right of action for damages !y the employees pre# dice nder Article 2, of the ne" Civil Code.
An its !road sense, ho"ever that is, in the sense of the employers circ lating a list of former employees of notorio s laziness or negligence in the performance of their d ties or of incorrigi!le propensity to create tro !le in the place of employment, it may !e a proper meas re for the protection of employers. /h s, it has !een held that nless the action of the employers in com!ining or in passing comm nications among themselves for the p rpose of e0cl ding n"anted "or$ers from employment, constit tes a li!el or slander %and according to some decisions the defamation, to !e actiona!le, m st !e malicio s-, the e0cl ded employee possesses no right of action !eca se the employers comm nity of interest acts !oth to # stify the com!ination and to privilege the comm nication.

Bisco raging mem!ership in a la!or organization incl des not only disco raging adhesion to nion mem!ership ! t also disco raging participation in nion activities s ch as legitimate stri$e. +.1 Biscrimination in Eor$ R ota
Considered in the light of the anti- nion attit de e0hi!ited !y respondent company in transferring nion president @eones from the main office in *anila to Ce! "hen the nion "as still !eing organized, and "hich act "as fo nd !y the F@5C as constit ting nfair la!or practice and nion-! sting in connection "ith the application for clearance to terminate @eones filed !y respondent company, 34 the neven application of its mar$eting plan !y respondent company is patently an act of discrimination, considered as an nfair la!or practice nder Art. 24,%e- of the @a!or Code.

+.3 Andirect Biscrimination At is a "ell settled r le of la" that "hat is prohi!ited to !e done directly shall not !e allo"ed to !e accomplished indirectly. /h s, the follo"ing acts have !een held nfair la!or practicesD %1- the dismissal of a la!orer in acco nt of nion activities of his !rother4 %2the discharge of an employee d e to the nion activities of the "ife4 and %3- the discharge of a "ife d e to the nion activities of the h s!and. +.( /est of Biscrimination Ior the p rpose of determining "hether or not a discharge is discriminatory, it is necessary that the nderlying reason for the discharge !e esta!lished. /he fact that a la"f l ca se for discharge is availa!le is not a defense "here the employee is act ally discharged !eca se of his nion activities. Af the discharge is act ally motivated !y a la"f l reason, the fact that the employee is engaged in nion activities at the time "ill not lie against the employer and prevent him from the e0ercise of his ! siness # dgment to discharge an employee for ca se.

+.2 Biscrimination in &on s Allocation or =alary Ad# stments /here is nfair and n# st discrimination in the granting of salary ad# stments "here the evidence sho"s that %a- the management paid the employees of the nionized !ranch4 %!- "here the salary ad# stments "ere granted to employees of one of its non nionized !ranches altho gh it "as losing in its operations4 and %c- the total salary ad# stments given every ten of its nionized employees "o ld not even e< al the salary ad# stments given one employee in the non nionized !ranch. +.3 Biscrimination in @ayoff or Bismissal 1ven "here ! siness conditions # stified a layoff of employees, nfair la!or practices in the form of discriminatory dismissal "ere fo nd

14
Ehere circ mstances esta!lish a discriminatory motive on the part of the employer, the assignment of a # st ca se "ill !e navailing. Af it can !e esta!lished that the tr e and !asic inspiration for the employers act is derived from the employees nion affiliations or activities, the assignment !y the employer of another reason, "hatever its sem!lance of validity, is navailing. An interference that the discharge of an employee "as motivated !y his nion activity m st !e !ased pon evidence, direct or circ mstantial, not pon mere s spicion. +., Constr ctive Bischarge Ehere the employer prohi!its employees from e0ercising their rights nder the Act, on pain of discharge, and the employee < its as a res lt of the prohi!ition, a constr ctive discharge occ rs, "hich may !e remedies in an nfair la!or practice proceeding. +.+ Bischarge B e to 2nion Activity, A R estion of Iact
/he < estion of "hether an employee "as discharged !eca se of his nion activities is essentially a < estion of fact as to "hich the findings of the Co rt of And strial 5elations are concl sive and !inding if s pported !y s !stantial evidence considering the record as a "hole. /his is so !eca se the And strial Co rt is governed !y the r le of s !stantial evidence, rather than !y the r le of preponderance of evidence as in any ordinary civil cases. = !stantial evidence has !een defined as s ch relevant evidence as a reasona!le mind might accept as ade< ate to s pport a concl sion. At means s ch evidence "hich affords a s !stantial !asis from "hich the fact in iss e can !e reasona!ly inferred.

-odified Union ShopD 1mployees "ho are not nion mem!ers at the time of signing the contract need not #oin the nion, ! t all "or$ers hired thereafter m st #oin. -aintenance of -embership ShopD Fo employee is compelled to #oin the nion, ! t all present or f t re mem!ers m st, as a condition of employment, remain in good standing in the nion. !.clusi#e Bargaining ShopD /he nion is recognized as the e0cl sive !argaining agent for all employees in the !argaining nit, "hether nion mem!ers or not. Bargaining for -embers OnlyD /he nion is recognized as the !argaining agent only for its o"n mem!ers 'gency ShopD An agreement "here!y employees m st either #oin the nion or pay the nion as e0cl sive !argaining agent a s m e< al to that paid !y the mem!ers. /his is directed against 8free rider9 employees "ho !enefits from nion activities "itho t contri! ting financially to nion s pport. At prevents sit ation "here non- nion mem!ers enrich themselves at the e0pense of nion mem!ers. Another term for agency shop agreement is 8maintenance of treasury shop.9 /he a!ove variations are opposite of open shop, an arrangement "hich does not re< ire nion mem!ership as a condition of employment. +.1)! Lalidity of Closed-=hop Agreement

+.1) Lalid BiscriminationD 2nion =ec rity Cla se /here is a form of enco ragement of nion mem!ership "hich is not considered 2@'. /his is "here *anagement and 2nion enter into a collective !argaining agreement containing a nion sec rity cla se. Bespite variations and limitations, a nion sec rity cla se essentially re< ires mem!ership in the nion so that an employee may retain his #o! and the nions e0istence is ass red. 82nion sec rity9 is a generic term "hich is applied to and comprehends 8closed shop,9 8 nion shop,9 8maintenance of mem!ership9 or any other form of agreement "hich imposes pon employees the o!ligation to ac< ire or retain nion mem!ership as a condition affecting employment. At is indeed comp lsory nion mem!ership "hose o!#ective is to ass re contin ed e0istence of the nion. An a sense, there is discrimination "hen certain employees are o!liged to #oin a partic lar nion. & t it is discrimination favo ring nionism4 it is a valid $ind of 8discrimination.9 /he employer is not g ilty of nfair la!or practice if it merely complies in good faith "ith the re< est of the certified nion for the dismissal of employees e0pelled from the nion p rs ant to the nion sec rity cla se in the collective !argaining agreement. +.1)a Minds of 2nion =ec rity Agreements losed%shopD 6nly nion mem!ers can !e hired !y the company and they m st remain as nion mem!ers to retain employment in the company. Union ShopD Fonmem!ers may !e hired, ! t to retain employment m st !ecome nion mem!ers after a certain period. /he re< irement applies to present and f t re employees.
At is tr e that disaffiliation from a la!or nion is not open to legal o!#ection. At is implicit in the freedom of association ordained !y the Constit tion. & t this Co rt has laid do"n the r ling that a closed shop is a valid form of nion sec rity, and s ch provision in a collective !argaining agreement is not a restriction of the right of freedom of association g aranteed !y the Constit tion. At is the policy of the =tate to promote nionism to ena!le the "or$ers to negotiate "ith management on the same level and "ith more pers asiveness than if they "ere to individ ally and independently !argain for the improvement of their respective conditions. /o this end, the Constit tion g arantees to them the rights ?to self-organization, collective !argaining and negotiations and peacef l concerted actions incl ding the right to stri$e in accordance "ith la".? /here is no < estion that these p rposes co ld !e th"arted if every "or$er "ere to choose to go his o"n separate "ay instead of #oining his co-employees in planning collective action and presenting a nited front "hen they sit do"n to !argain "ith their employers. At is for this reason that the la" has sanctioned stip lations for the nion shop and the closed shop as a means of enco raging the "or$ers to #oin and s pport the la!or nion of their o"n choice as their representative in the negotiation of their demands and the protection of their interest vis-a-vis the employer. A closed-shop agreement is an agreement "here!y an employer !inds himself to hire only mem!ers of the contracting nion "ho m st contin e to remain mem!ers in good standing to $eep their #o!s. At is ?the most prized achievement of nionism.? At adds mem!ership and comp lsory d es. &y holding o t to loyal mem!ers a promise of employment in the closed-shop, it "elds gro p solidarity. At is a very effective form of nion sec rity agreement.

+.1)c Advantages and Bisadvantages of Closed-=hop Agreement A closed-shop agreement is advantageo s !eca se it7 a. Ancreases the strength and !argaining po"er of la!or organizations.

1:
!. 'revents non- nion "or$ers from sharing in the !enefits of the nions activities "itho t also sharing its o!ligations. c. 'revents the "ea$ening of la!or organizations !y discrimination against nion mem!ers. d. 1liminates the lo"ering of standards ca sed !y competition "ith non- nion "or$ers. e. 1na!les la!or organizations effectively to enforce collective agreements. f. Iacilitates the collection of d es and the enforcement of nion r les. g. Creates harmonio s relations !et"een the employer and employee. & t it is disadvantageo s as it7 a. 5es lts in monopolistic domination of employment !y la!or organizations. !. Anterferes "ith the freedom of contract and personal li!erty of the individ al "or$er. c. Compels employers to discharge all non- nion "or$ers regardless of efficiency, length of service, etc. d. Iacilitates the se of la!or organizations !y nscr p lo s nion leaders for the p rpose of e0tortion, restraint of trade, etc. e. Benies to non- nion "or$ers e< al opport nity for employment. f. 1na!les nion to charge e0or!itant d es and initiation fees. +.1)d Lalid Bismissal &eca se of Application of 2nion =ec rity Cla se
2nion sec rity cla ses in collective !argaining agreements, if freely and vol ntarily entered into, are valid and !inding. Corollary, dismissals p rs ant to nion sec rity cla ses are valid and legal s !#ect only to the re< irement of d e process, that is, notice and hearing prior to dismissal. /h s, the dismissal of an employee !y the company p rs ant to a la!or nion>s demand in accordance "ith a nion sec rity agreement does not constit te nfair la!or practice. 1ven if the nion mem!ers "ere na"are of the closed-shop stip lation in the C&A, they "ere !o nd !y it. Feither their ignorance of, nor their dissatisfaction "ith its terms and conditions "o ld # stify !reach thereof or the formation !y them of a nion of their o"n. /his is so !eca se a nion mem!er "ho is employed nder an agreement !et"een the nion and his employer is !o nd !y the provisions thereof, since it is a #oint and several contract of the mem!ers of the nion entered into !y the nion as their agent. /his provision is an indirect restriction on the right of an employee to selforganization. At is a solemn prono ncement of a policy that "hile an employee is given the right to #oin a la!or organization, s ch right sho ld only !e asserted in a manner that "ill not spell the destr ction of the same organization /he la" re< ires loyalty to the nion on the part of its mem!ers in order to o!tain to the f ll e0tent its cohesion and integrity.

An order to validly dismiss an employee !y force of the nion sec rity cla se, there sho ld !e a clear and une/ui#ocal statement that the loss of the stat s of a mem!er of good standing in the nion shall !e a ca se for dismissal. 2nion shop, as "ith closed-shop provisions, sho ld !e strictly constr ed against the e0istence of nion shop. =ometimes harsh and onero s, s ch provisions sho ld not !e e0tended !eyond the e0plicit coverage of their terms, and "ill not !e deemed to a thorize !y implication any dismissal of employees already "or$ing !efore the agreement "as made. +.1)f B e 'rocess 5e< ired in 1nforcing 2nion =ec rity Cla se4 Antra- nion *atter !ecomes /ermination Bisp te "ith 1mployer Altho gh a nion sec rity cla se in a C&A may !e validly enforced and that dismissal p rs ant thereto may li$e"ise !e valid, this does not erode the f ndamental re< irement of d e process. /he reason !ehind the enforcement of nion sec rity cla ses "hich is the sanctity and inviola!ility of contracts cannot override one>s right to d e process. +.1)g @ia!ility of 2nion to 'ay Eages and Iringe &enefits of Allegally Bismissed 1mployee +.1)h 1mployer in Good Iaith Fot @ia!le +.1)i Closed-=hop, /o Ehom Fot Applica!le All employees in the !argaining nit covered !y a closed-shop agreement are s !#ect to its terms, e0cept the follo"ingD %1- any employee "ho at the time the closed-shop agreement ta$es effect is a bona fide mem!er of religio s organization "hich prohi!its its mem!ers from #oining la!or nions on religio s gro nds4 %2employees already in the service and already mem!ers of a la!or nion or nions other than the ma#ority nion at the time the closedshop agreement too$ effect4 %3- Confidential employees "ho are e0cl ded from the ran$-and-file !argaining nit4 and %4- employees e0cl ded from the closed-shop !y e0press terms of the agreement.
At is "ell settled in this # risdiction that, in the a!sence of a manifest intent to the contrary, ?closed shop? provisions in a collective !argaining agreement ?apply only to persons to !e hired or to employees "ho are not yet mem!ers of any la!or organization? and that said provisions of the agreement are not applica!le to those already in the service at the time of its e0ec tion. /o hold that the employees in a company "ho are mem!ers of a minority nion may !e compelled to disaffiliate from their nion and #oin the ma#ority or contracting nion, "o ld render n gatory the right of all employees to self organization and to form, #oin or assist la!or organizations of their o"n choosing, a right g aranteed !y the And strial 'eace Act %sec. 3, 5ep. Act Fo. ,(:- as "ell as !y the Constit tion %Art. AAA, sec. 1N3O-.

+.1)# Agency Iee Anstead of 2nion *em!ership /he employees "ho are !enefitting from the C&A, "itho t !eing mem!ers of the !argaining nion, may !e re< ired to pay an agency fee. /he collection of agency fees in an amo nt e< ivalent to nion d es and fees, from employees "ho are not nion mem!ers, is recognized !y Article 24, %e- of the @a!or Code. A "ritten a thorization from the non- nion employee is imposed. /he employee>s acceptance of !enefits res lting from a collective !argaining agreement # stifies the ded ction of agency fees from his pay and the nion>s entitlement thereto. An this aspect, the legal !asis of the nion>s right to agency fees is neither contract al nor stat tory,

+.1)e Bismissal ' rs ant to Closed-=hop Cla se * st Clearly Appear in Contract

13
! t < asi-contract al, deriving from the esta!lished principle that nonnion employees may not n# stly enrich themselves !y !enefiting from employment conditions negotiated !y the !argaining nion. /he # stification of collecting agency fee is the nions accomplishment in having negotiated a C&A in !ehalf of the employees. /he nion served as agent of the employees, and the agency fee is recognition of the agents efforts. /he fee is collecti!le only from employees deriving economic !enefits from the nionnegotiated C&A. 1B. SI!TH U.L.P." DISCRIMINATION TESTIMONY ;ART. 2 ,<9=> BECAUSE OF =elf-organization and collective !argaining are treas red rights of "or$ers. /he la" zealo sly shields them from corr ption. At is a p nisha!le act of 2@' for the employer to pay the nion or any of its officers or agents any negotiation fee or attorneys fee as part of settlement in collective !argaining or any la!or disp te. /o do so is not nla"f l. At is ethically reprehensi!le. 13. NINTH U.L.P." VIOLATION OF THE CBA ;ART. 2 ,<i=> After a C&A is concl ded, its implementation follo"s. Amplementation is still part of the !argaining process "hich, it sho ld !e recalled, rests on the parties 8d ty to !argain.9 /he d ty to !argain, it sho ld also !e recalled, re< ires good faith. And good faith implies faithf l o!servance of "hat has !een agreed pon. At logically follo"s that noncompliance "ith the agreement is non-o!servance of good faith in !argaining4 therefore, the noncompliance amo nts to 2@'. & t s ch violation, to constit te 2@', m st !e 8gross,9 according to Art. 231. 1 . RELIEF IN U.L.P. CASES
Clearly, the efforts to # stify petitioner>s dismissal 7 on top of the private respondent>s scheme of ind cing his employees to sign an affidavit a!solving him from possi!le violations of the @a!or Code 7 taints "ith evident !ad faith and deli!erate malice petitioner>s s mmary termination from employment. /he pivotal < estion in any case "here nfair la!or practice on the part of the employer is alleged is "hether or not the employer has e0erted press re, in the form of restraint, interference or coercion, against his employee>s right to instit te concerted action for !etter terms and conditions of employment. Eitho t do !t, the act of compelling employees to sign an instr ment indicating that the employer o!served la!or standards provisions of la" "hen he might have not, together "ith the act of terminating or coercing those "ho ref se to cooperate "ith the employer>s scheme constit tes nfair la!or practice. /he first act clearly preempts the right of the hotel>s "or$ers to see$ !etter terms and conditions of employment thro gh concerted action.

is "rong, and more than that, Article 24, considers it an nfair la!or practice "hich, nder Art. 233, is a legal reason for employees to hold a stri$e. 11. SEVENTH U.L.P." VIOLATION OF THE DUTY TO BARGAIN ;ART. 2 ,<C=> /he seventh 2@' act nder Art. 24, refers to violating the d ty to !argain. See 'rticles 010 and 012 12. EIGHT U.L.P." PAID NEGOTIATION ;ART. 2 ,<-=>

/he la" protects not only the employees right to form, #oin, or assist la!or organizations ! t also their right to testify on matters covered !y the Code. Af this right is not protected, the right to self-organization "ill !e indirectly defeated !eca se the employees "ill fear their employers reprisal. &y protecting the employees right to testify, the la" therefore shields the "or$ers right to self-organization from indirect assa lt !y the employer. /h s, it is 2@' 8to dismiss, discharge, or other"ise pre# dice or discriminate against an employee for having given or !eing a!o t to give testimony nder this Code. 1mployers reprisal against a testifying employee is 2@' !eca se, f rthermore, it violates the right to engage in concerted activity, a right incl ded in the right to self-organize %Art. 243- and reiterated in Article 233%!-. Concerted activity does not al"ays re< ire a n m!er of people acting in nison. An employee acting alone in p rs ing a gro p interest may !e said to !e doing a concerted activity "hich the employer may not c rtail. 1).1 5ef sal to /estify

14.1 Cease and Besist 6rder /o s pport a cease and desist order, the record m st sho" that the restrained miscond ct "as an iss e in the case4 that there "as a finding of fact of said miscond ct and s ch finding of fact "as s pported !y evidence. /he Co rt is not a thorized to iss e !lan$ cease and desist orders, ! t m st confine its in# nction orders to specific act or acts "hich are related to past miscond ct. A cease and desist order is not invalidated !eca se the act complained of "as vol ntarily discontin ed prior to or d ring the co rse of the proceedings. & t if the act complained of happened so long a time that there is no longer any threat or pro!a!ility of a rec rrence, a cease and desist order "ill not !e # stified. 14.2 Affirmative 6rder /he Co rt does not only have the po"er to iss e negative or prohi!itive orders ! t also affirmative or positive orders. /he order may s ally direct the f ll reinstatement of the discharged employees to their s !stantially e< ivalent position "itho t pre# dice to their seniority and other rights and privileges. 14.3 6rder to &argain4 *andated C&A @i$e"ise, "hen an employer has failed or ref sed to !argain "ith the proper !argaining agent of his employees, the Co rt may, in addition

1).2 @a!or =tandards Liolation *ay @ead to a =ri$e Art. 11,. Retaliatory measures. At shall !e nla"f l for an employer to ref se to pay or red ce the "ages and !enefits, discharge or in any manner discriminate against any employee "ho has filed any complaint or instit ted any proceeding nder this /itle or has testified or is a!o t to testify in s ch proceedings. And yet, Articles 11, and 24, are related. /hey !oth spea$ of employees filing a complaint or giving testimony. & t the s !#ect of complaint or testimony nder Article 11, is limited to matters a!o t "ages, the s !#ect of /itle A of &oo$ AAA. 2nder Article 24,, on the other hand, the s !#ect testified to is any iss e covered !y the Code. &oth articles li$e"ise spea$ of retaliation !y the employer. 5etaliation

1(
to the s al cease and desist orders, iss e an affirmative order to compel the respondent to 8!argain9 "ith the !argaining agent. 14.4 Bisesta!lishment Ehere the employer had initiated, dominated or assisted in or interfered "ith the formation or esta!lishment of any la!or organization or contri! ted financial or other s pport to it, the Co rt may iss e, in addition to a cease and desist order, an order directing the employer to "ithdra" all recognition from the dominated la!or nion and to disesta!lish the same. 1$. U.L.P. NOT SUB&ECT TO COMPROMISE 2nfair la!or practice cases are not, in vie" of the p !lic interest involved, s !#ect to compromises. /he relation !et"een capital and la!or are not merely contract al. /hey are so impressed "ith the p !lic interest that la!or contracts m st yield to the common good. 1%. U.L.P. IN A GIVEN PERIOD SHOULD BE INCLUDED IN SINGLE CHARGE Ehen a la!or nion acc ses an employer of acts of nfair la!or practice allegedly committed d ring a given period of time, the charges sho ld incl de all acts of nfair la!or practice committed against any and all mem!ers of the 2nion d ring that period. /he 2nion sho ld not, pon the dismissal of the charges first preferred, !e allo"ed to split its ca se of action and harass the employer "ith s !se< ent charges. !ased pon acts committed d ring the same period of time. 1+. EMPLOYER(S RESPONSIBILITY FOR U.L.P. ACTS BY SUBORDINATE OFFICIALS 3no4ledge by the employer of the employees improper acts D Ehere it "as esta!lished that the employer "as a"are of the employees "rongdoing, his fail re to prevent contin ation of the co rse of cond ct or his fail re to reno nce any connection or affinity there"ith, invited the imp tation of fa lt and responsi!ility to the employer. ontinuity of improper conduct by employeeD A single tterance !y a s pervisory employee, "hether improvident or deli!erate on the employees part, "as not ordinarily and n a!sence of proof of act al a thority held to !e s fficient to convict an employer of an nfair la!or practice4 ho"ever, contin ed, repeated or "idespread activities !y s ch s pervisory employee in affront of the rights of the !ody of employees "as deemed ample # stification for ascri!ing $no"ledge and !lame to the employer. !mployers past policy and attitude D At has !een held that, among other things, the similarity !et"een the past attit de or policy of the employer and that of the offending s pervisory employee might, in certain cases, !e indicative of a concert of effort !et"een the t"o. ........ C-./te0 III UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS Article 24+. 2nfair la!or practices of la!or organizations. - At shall !e nfair la!or practice for a la!or organization, its officers, agents or representativesD %a- /o restrain or coerce employees in the e0ercise of their right to self-organization. ;o"ever, a la!or organization shall have the right to prescri!e its o"n r les "ith respect to the ac< isition or retention of mem!ership4 %!- /o ca se or attempt to ca se an employer to discriminate against an employee, incl ding discrimination against an employee "ith respect to "hom mem!ership in s ch organization has !een denied or to terminate an employee on any gro nd other than the s al terms and conditions nder "hich mem!ership or contin ation of mem!ership is made availa!le to other mem!ers4 %c- /o violate the d ty, or ref se to !argain collectively "ith the employer, provided it is the representative of the employees4 %d- /o ca se or attempt to ca se an employer to pay or deliver or agree to pay or deliver any money or other things of val e, in the nat re of an e0action, for services "hich are not performed or not to !e performed, incl ding the demand for fee for nion negotiations4 %e- /o as$ for or accept negotiation or attorneys fees from employers as part of the settlement of any iss e in collective !argaining or any other disp te4 or %f- /o violate a collective !argaining agreement. /he provisions of the preceding paragraph not"ithstanding, only the officers, mem!ers of governing !oards, representatives or agents or mem!ers of la!or associations or organizations "ho have act ally participated in, a thorized or ratified nfair la!or practices shall !e held criminally lia!le. %As amended !y &atas 'am!ansa &ilang 13), A g st 21, 1+,1-. ........ 1. RESTRAINT OR COERCION BY LABOR ORGANIZATION' INTERFERENCE BY UNION IS NOT ULP A la!or organization commits 2@' "hen it restrains or coerces employees in their right to self-organization. /his provision of Art. 24+%a- parallels "ith Art. 24,%a-. & t 8interference9 is left o t. /his deli!erate omission is 8the e< ivalent of license of la!or organization to engage in those practices "hich, at the hands of an employer, "o ld constit te actiona!le nfair la!or practices !y "ay of 8interference.9 An other "ords, a la!or organization may interfere in the employees right to self-organization as long as the interference does not amo nt to restraint or coercion. Anterference !y a la!or organization is not 2@' !eca se interfering in the e0ercise of the right to organize is itself a f nction of selforganizing. 1.1 Coercing 'articipation in =tri$e /he provision is violated !y a nions restraining or coercing an employee in the e0ercise of his right to ref se to participate in or recognize a stri$e. =imilarly, violation is committed "hen a nion threatens employees "ith !odily harm in order to force them to stri$e. 2. UNION#INDUCED DISCRIMINATION /he la" for!ids as 2@' nion attempts to ca se an employer to grant advantages for nion mem!ers over non-mem!ers, for nion mem!ers in good standing over s spended or e0pelled mem!ers, for nion

1,
mem!ers over permit holders, for mem!ers of the nion e0ec tive !oard over more senior employees, for mem!ers of one nion over mem!ers of another nion, or for mem!ers of one local over mem!ers of another local. /he for!idden discrimination may refer to terms of hiring or firing, in layoff, in seniority, or in !enefits. 2.1 Ar!itrary 2se of 2nion =ec rity Cla se /he !road r le is that the nion has the right to determine its mem!ership and to prescri!e the conditions for the ac< isition and retention thereof. Conse< ently, admission to mem!ership may not !e compelled. /his r le, ho"ever, is < alified in the case of la!or nions holding a monopoly in the s pply of la!or, either in a given locality, or as regards a partic lar employer !y reason of a closed-shop or similar agreements. An s ch case, < alified applicants may not !e ar!itrarily e0cl ded from mem!ership and their admission may not !e !arred !y nreasona!le r les.
At is "ell settled that la!or nions are not entitled to ar!itrarily e0cl de < alified applicants for mem!ership, and a closed-shop provision "o ld not # stify the employer in discharging, or a nion in insisting pon the discharge of, an employee "hom the nion th s ref ses to admit to mem!ership, "itho t any reasona!le gro nd therefor.4 Feedless to say, if said nions may !e compelled to admit ne" mem!ers, "ho have the re< isite < alifications, "ith more reason may the la" and the co rts e0ercise the coercive po"er "hen the employee involved is a long standing nion mem!er, "ho, o"ing to provocations of nion officers, "as impelled to tender his resignation, "hich he forth"ith "ithdre" or revo$ed. = rely, he may, at least, invo$e the rights of those "ho see$ admission for the first time, and cannot ar!itrarily he denied readmission. /he Co rt stresses, ho"ever, that nion sec rity cla ses are also governed !y la" and !y principles of # stice, fair play, and legality. 2nion sec rity cla ses cannot !e sed !y nion officials against an employer, m ch less their o"n mem!ers, e0cept "ith a high sense of responsi!ility, fairness, pr dence, and # dicio sness. A nion mem!er may not !e e0pelled from her nion, and conse< ently from her #o!, for personal or impet o s reasons or for ca ses foreign to the closedshop agreement and in a manner characterized !y ar!itrariness and "himsicality.

An spite of employee assertions that these so-called feather!edding practices are directly related to #o! sec rity, health and safety, most co rts at common la" fo nd these practices to !e economically "astef l and "itho t any legitimate employee # stification. ........ Title VII COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENTS A5/. 2:). 'roced re in collective !argaining. - /he follo"ing proced res shall !e o!served in collective !argainingD %a- Ehen a party desires to negotiate an agreement, it shall serve a "ritten notice pon the other party "ith a statement of its proposals. /he other party shall ma$e a reply thereto not later than ten %1)calendar days from receipt of s ch notice4 %!- =ho ld differences arise on the !asis of s ch notice and reply, either party may re< est for a conference "hich shall !egin not later than ten %1)- calendar days from the date of re< est. %c- Af the disp te is not settled, the &oard shall intervene pon re< est of either or !oth parties or at its o"n initiative and immediately call the parties to conciliation meetings. /he &oard shall have the po"er to iss e s !poenas re< iring the attendance of the parties to s ch meetings. At shall !e the d ty of the parties to participate f lly and promptly in the conciliation meetings the &oard may call4 %d- B ring the conciliation proceedings in the &oard, the parties are prohi!ited from doing any act "hich may disr pt or impede the early settlement of the disp tes4 and %e- /he &oard shall e0ert all efforts to settle disp tes amica!ly and enco rage the parties to s !mit their case to a vol ntary ar!itrator. %As amended !y =ection 2), 5ep !lic Act Fo. 3(1:, *arch 21, 1+,+-. ........ Article 2:1. B ty to !argain collectively in the a!sence of collective !argaining agreements. An the a!sence of an agreement or other vol ntary arrangement providing for a more e0peditio s manner of collective !argaining, it shall !e the d ty of employer and the representatives of the employees to !argain collectively in accordance "ith the provisions of this Code. ........ 1. NATURE OF COLLECTIVE BARGAINING 1.1 Befinition Collective !argaining or negotiations to"ards a collective agreement is a democratic frame"or$ to sta!ilize the relation !et"een la!or and management and to create a climate of so nd and sta!le ind strial peace. At is a m t al responsi!ility of the employer and the 2nion and is characterized as a legal o!ligation. Collective !argaining incl des fo r related ! t disting isha!le processesD %1- negotiation !et"een representatives of the management and the nion over 8"ages, ho rs, and other terms of employment49 %2- the e0ec tion of a "ritten contract em!odying the terms agreed pon4

2.2 Fot Bisloyalty to As$ ;elp from Another 2nion 3. REFUSAL TO BARGAIN 2@' nder Art. 24+%c- is intended to ins re that nions approach the !argaining ta!le "ith the same attit de of "illingness to agree as the Act re< ires of management. A nion violates its d ty to !argain collectively !y entering negotiations "ith a fi0ed p rpose of not reaching an agreement or signing a contract. . FEATHERBEDDING ARRANGEMENTS AND MA*E#WOR*

Art. 24+%d- refers to feather!edding. 8Ieather!edding9 is the name given to employee practices "hich create or spread employment !y 8 nnecessarily9 maintaining or increasing the n m!er of employees sed, or the amo nt of time cons med, to "or$ on a partic lar #o!.

1+
%3- negotiation of any < estion arising as to the interpretation or application of the contract4 and %4- negotiation over the terms of a ne" contract or proposed modifications, "hen an e0isting agreement is validly opened for negotiations. Collective !argaining is a system made p of a set of contin o s processes4 it is c stomary and helpf l to disting ish negotiation of contracts %the 8legislative9 phase of the nion-employer relationship-, administration of contracts %the 8e0ec tive phase-, and interpretation or application of contracts %the 8# dicial9 phase-. An common sage as "ell as in legal terminology, collective !argaining denotes negotiations loo$ing for"ard to a collective agreement. ;o"ever, it does not end "ith the e0ec tion of an agreement. At is a contin o s process. At re< ires !oth parties, the employer and d ly a thorized representatives of employees, to deal "ith each other "ith open and fair minds and sincerely endeavor to fight the o!stacles in the process to sta!ilize employer-employee relationship. 1.1a C&A Befined 2.1 6riginator A collective !argaining agreement %C&A-, as sed in Article 2:2 of the @a!or Code, refers to a contract e0ec ted pon re< est of either the employer or the e0cl sive !argaining representative incorporating the agreement reached after negotiations "ith respect to "ages, ho rs of "or$ and all other terms and conditions of employment, incl ding proposals for ad# sting any grievances or < estions arising nder s ch agreement.
Ehile the terms and conditions of a C&A constit te the la" !et"een the parties, it is not, ho"ever, an ordinary contract to "hich is applied the principles of la" governing ordinary contracts. A C&A, as a la!or contract "ithin the contemplation of Article 1()) of the Civil Code of the 'hilippines "hich governs the relations !et"een la!or and capital, is not merely contract al in nat re ! t impressed "ith p !lic interest, th s, it m st yield to the common good. As s ch, it m st !e constr ed li!erally rather than narro"ly and technically, and the co rts m st place a practical and realistic constr ction pon it, giving d e consideration to the conte0t in "hich it is negotiated and p rpose "hich it is intended to serve.

At provides an opport nity for the e0change of information tending to enhance the nderstanding of the parties for each other pro!lems and o!#ectives, !oth "here they differ and "here they are identical. *oreover7and this is very important7it provides an orderly proced re !y "hich each side can see$ to present to the other the !est possi!le case for the satisfaction of its partic lar demands. At elicits the consent of those "ho "ill have to live nder the terms of any agreement derived from the !argaining process. =ta!ility is an important element in employment, and 8consent ass res sta!ility !eca se parties "ho have accepted an agreement "ill live !y its terms.9 2. EMERGENCE OF COLLECTIVE BARGAINING Iirst in Great &ritain, ! t not m ch later in other co ntries, "or$ing men so ght to protect themselves against the harsh effects of ne" machines, ne" methods of prod ction, ne" divisions of la!or and ne" intensities of competition !y forming organizations capa!le of representing their interests as a gro p #is%5%#is employees and the =tate.

/he credit for coining the e0pression !elongs to &eatrice Ee!!, "ho first sed it in 1,+1 in her st dy on 8 )he ooperati#e -o#ement in Great Britain$9 An non-1nglish spea$ing co ntries, partic larly on the 1 ropean continent, "here the process of collective !argaining has an e< ally long history, the emphasis "as placed on the term 8collective agreement9 !eca se d ring the early period the "or$ers aimed not so m ch at esta!lishing the proced re of !argaining itself as at having s ch agreements recognized and enforced as legally !inding contracts. 2.2 Adoption in the 'hilippines An the 'hilippines the idea of collective !argaining first gained formal and official recognition thro gh Common"ealth Act Fo. 213, approved !y 'resident *an el @. R ezon on Fovem!er 21, 1+33. & t it is the And strial 'eace Act %5A Fo. ,(:, approved !y 'resident 1lpidio R irino on K ne 1(, 1+:3-, that defined collective !argaining and o tlined its proced re. 3. PARTIES TO COLLECTIVE BARGAINING

A C&A is more than a contract4 it is a generalized code to govern a myriad of cases "hich the draftsmen "holly anticipate. At covers the "hole employment relationship and prescri!es the rights and d ties of the parties. 1.2 5ationale &y 8collective !argaining9 the employee shares thro gh his chosen representatives in fi0ing the conditions nder "hich he "or$s, and a r le of la" is s !stit ted for a!sol te a thority. 1.3 =trength of the Collective &argaining *ethod Collective !argaining is also a means of ens ring "or$ers participation in decision-ma$ing. /he notion that "or$ers are entitled to participate in setting the terms nder "hich they are to "or$ is inherent in collective !argaining4 even the most r dimentary form of collective !argaining involves a transfer of certain iss es, !e it only "ages, from the area of nilateral to the area of !ilateral decisionma$ing.

/he d ty to !argain collectively arises only !et"een the 8employer9 and its 8employees9. Ehere neither party is an 8employer9 nor an ?employee? of the other, no s ch d ty "o ld e0ist. Feedless to add, "here there is no d ty to !argain collectively the ref sal to !argain violates no right. /he parties, then, to collective !argaining as traditionally nderstood, are the employer and the employees represented !y their la!or nion.
Article. 212. %#- ?&argaining representative? means a legitimate la!or organization "hether or not employed !y the employer.

/he !argaining representative of the employees is an entity7the nion7and not the officers of the nion.

2)
. &URISDICTIONAL PRECONDITIONS OF COLLECTIVE BARGAINING Ehile it is a m t al o!ligation of the parties to !argain, the employer, ho"ever, is not nder any legal d ty to initiate contract negotiation. /he mechanics of collective !argaining is set in motion only "hen the follo"ing # risdictional preconditions are present, namelyD %1- possession of the stat s of ma#ority representation of the employees> representative in accordance "ith any of the means of selection or designation provided for !y the @a!or Code4 %2- proof of ma#ority representation4 and %3- a demand to !argain nder Article 2:1, par. %a- of the Fe" @a!or Code. An employers d ty to recognize and !argain collectively "ith a nion as the collective !argaining representative of his employees does not arise ntil after the nion re< ests the employer to !argain. ;ence, an employer is not in defa lt respecting the d ty to !argain ntil a re< est therefor has !een made.
At is essential to the right of a p tative !argaining agent to represent the employees that it !e the delegate of a ma#ority of the employees and, conversely, an employer is nder d ty to !argain collectively only "hen the !argaining agent is representative of the ma#ority of the employees. A nat ral conse< ence of these principles is that the employer has the right to demand of the asserted !argaining agent proof of its representation of its employees. ;aving the right to demonstration of this fact, it is not an > nfair la!or practice> for an employer to ref se to negotiate ntil the asserted !argaining agent has presented reasona!le proof of ma#ority representation. At is necessary ho"ever, that s ch demand !e made in good faith and not merely as a prete0t or device for delay or evasion. /he employer>s right is ho"ever to reasona!le proof.

A nion "hich has !een certified !y the F@5& as a !argaining representative for a partic lar nit en#oys an irref ta!le pres mption of a ma#ority stat s for one year, a!sent special circ mstances. Iollo"ing the e0piration of the one-year certification period, there contin es to !e a pres mption in favor of a nion ma#ority, tho gh the pres mption is re! tta!le. 1mployee t rnover does not constit te 8 n s al circ mstances9 shortening the period. %. SINGLE ENTERPRISE BROADLY DESCRIBED BARGAINING PROCEDURE

/he la" gives primacy to free collective !argaining %Art. 211- and allo"s the parties to devise their !argaining r les %Art. 2:1-. /his is the !asic reason the !argaining proced re is governed primarily !y agreement of the parties. An the presence of validly agreed proced re, the @a!or Code proced re applies s ppletorily only. B.6. Fo. 4)-)3 s pplements the codal provisionsD
=ection 3. Ehen single enterprise !argaining availa!le. - Any vol ntarily recognized or certified la!or nion may demand negotiations "ith its employer for terms and conditions of "or$ covering employees in the !argaining nit concerned. =ection 4. 'roced re in single enterprise !argaining - A recognized or certified la!or nion that desires to negotiate "ith its employer shall s !mit s ch intention in "riting to the employer, together "ith its proposals for collective !argaining.

4.1 &argaining "ith *inority 2nion, 2@' Ehere a ma#ority representative has !een designated, it is an nfair la!or practice, Nfor the employerO as a ref sal of collective !argaining, to deal and negotiate "ith the minority representative. 6n the nion side, "here there e0ists a legitimate iss e as to "hich of several nions is the legitimate representative of employees, it is 2@' for one of the nions to stage a stri$e and demand that the employer sit do"n "ith it for collective !argaining. $. WHEN BARGAINING SHOULD BEGIN Af the three # risdictional preconditions are present, the collective !argaining sho ld !egin "ithin the 12 months follo"ing the determination and certification of the employees e0cl sive !argaining representative. /his period is $no"n as the 8certification year.9 /he employers d ty to !argain d ring the certification year has !een held to e0tend thro gho t the entire year. A!sent n s al circ mstances, an employer commits an nfair la!or practice !y ref sing to !argain "ith the nion d ring its certification year, not"ithstanding the rep diation of the nion !y a ma#ority of its employees !efore the e0piration of the one-year period. /he r le is the same "hether the nion lost its ma#ority as a res lt of the employers nfair la!or practices or thro gh no fa lt of the employer.

/he recognized or certified la!or nion and its employer may adopt s ch proced res and processes they may deem appropriate and necessary for the early termination of their negotiations. /hey shall name their respective representatives to the negotiation, sched le the n m!er and fre< ency of meetings, and agree on "ages, !enefits and other terms and conditions of "or$ for all employees covered in the !argaining nit. +. MULTI#EMPLOYER BARGAINING Collective !argaining may ta$e place at the national, ind stry, or enterprise level. /he 'hilippines so far has tried only enterprise-level, or decentralized !argaining. (.1 5ationale of * lti-employer &argaining Ehen a n m!er of employees #oin forces for p rposes of collective !argaining, the nit str ct re is descri!ed as a m lti-employer !argaining nit. /he str ct re may consist of an association representing employers, or even a "hole ind stry, or it may !e composed of only a fe" employers "ho !argain as a gro p, or thro gh an association. Competitive press res are the dominant forces that enco rage !oth nions and employers to enter into m lti-employer or ind stry-"ide !argaining relationships. =mall employers in highly competitive and la!or-intensive fields may find it easier to operate "ith niformity of la!or cost.

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/he m lti-employer nit is partic larly advantageo s to !oth sides in ind stries composed of many small, financially "ea$ employers. * lti-employer !argaining provides !oth management and nions "ith significant cost savings in negotiation of la!or agreements. At is cheaper to negotiate one master m lti-employer agreement than a n m!er of single-employer agreements. /here are, ho"ever, other considerations than costs, s ch as intraorganizational iss es, that the parties ta$e into acco nt !efore opting for m lti-employer nits. * lti-employer !argaining may not only overloo$ the needs of vario s employee gro ps, ! t also ignore partic lar re< irements of individ al employers. Ehat may !e readily accepta!le to one employer may !e considered as financially disastro s !y another. /o arrive at m lti-employer agreements is m ch more diffic lt than to arrive at single-employer contracts. /he e0panded size of the nit composed of many heterogeneo s gro ps leads to intensive intraorganizational !argaining !oth on the nions and on the employers side. At times, these intra-organizational press res may lead to lengthy delays in negotiations and even to !rea$do"n of !argaining. (.2 * lti-employer &argaining 'roced re %B.6. Fo. 4)-)3=ection :. Ehen m lti-employer !argaining availa!le. - A legitimate la!or nion%s- and employers may agree in "riting to come together for the p rpose of collective !argaining, providedD %a- only legitimate la!or nions "ho are inc m!ent e0cl sive !argaining agents may participate and negotiate in m lti-employer !argaining4 %!- only employers "ith co nterpart legitimate la!or nions "ho are inc m!ent !argaining agents may participate and negotiate in m lti-employer !argaining4 and %c- only those legitimate la!or nions "ho pertain to employer nits "ho consent to m lti-employer !argaining may participate in m lti-employer !argaining. =ection 3. 'roced re in m lti-employer !argaining. - * lti-employer !argaining may !e initiated !y the la!or nions or !y the employers. %a- @egitimate la!or nions "ho desire to negotiate "ith their employers collectively shall e0ec te a "ritten agreement among themselves, "hich shall contain the follo"ingD 1- the names of the la!or !argaining4 nions "ho desire to avail of m lti-employer 1mployers "ho agree to gro p themselves or se their e0isting associations to engage in m ltiemployer !argaining shall send a "ritten notice to each of their co nterpart legitimate la!or nions indicating their desire to engage in m lti-employer !argaining. =aid notice shall indicate the follo"ingD 1- the names of the employers "ho desire to avail of m lti-employer !argaining4 2- their corresponding legitimate la!or organizations4 3- the fact that each corresponding legitimate e0cl sive !argaining agent4 nion is any inc m!ent

4- the d ration of the c rrent collective !argaining agreement, if any, entered into !y each employer "ith the co nterpart legitimate la!or nion. %c- 1ach employer or concerned la!or nion shall e0press its "illingness or ref sal to participate in m lti-employer !argaining in "riting, addressed to its corresponding e0cl sive !argaining agent or employer. Fegotiations may commence only "ith regard to respective employers and la!or nions "ho consent to participate in m lti-employer !argaining4 %d- B ring the co rse of negotiations, consenting employers and the corresponding legitimate la!or nions shall disc ss and agree on the follo"ingD 1- the manner !y "hich negotiations shall proceed4 2- the scope and coverage of the negotiations and the agreement4 and 3- "here appropriate, the effect of the negotiations on c rrent agreements or conditions of employment among the parties. =ection (. 'osting and registration of collective !argaining agreement. - /"o %2- signed copies of collective !argaining agreement reached thro gh m ltiemployer !argaining shall !e posted for at least five % :- days in t"o conspic o s areas in each "or$place of the employer nits concerned. =aid collective !argaining agreement shall affect only those employees in the !argaining nits "ho have ratified it. /he same collective !argaining agreement shall !e registered "ith the Bepartment in accordance "ith the follo"ing 5 le.

(.4 6ptional 2nder B.6. Fo. 4)-)3 m lti-employer !argaining is p rely optional for employers and nions. 2nli$e other !argaining nits, the m lti-employer primarily on the consent of the firms involved. ........ nit is !ased

2- each la!or nion in the employer nit4 3- the fact that each of the la!or nions are the inc m!ent e0cl sive !argaining agents for their respective employer nits4 4- the d ration of the collective !argaining agreements, if any, entered into !y each la!or nion "ith their respective employers. @egitimate la!or nions "ho are mem!ers of the same registered federation, national, or ind stry nion are e0empt from e0ec tion of this "ritten agreement. %!- /he legitimate la!or nions "ho desire to !argain "ith m lti-employers shall send a "ritten notice to this effect to each employer concerned. /he "ritten agreement stated in the preceding paragraph, or the certificates of registration of the federation, national, or ind stry nion, shall accompany said notice.

Article 2:2. *eaning of d ty to !argain collectively. /he d ty to !argain collectively means the performance of a m t al o!ligation to meet and convene promptly and e0peditio sly in good faith for the p rpose of negotiating an agreement "ith respect to "ages, ho rs of "or$ and all other terms and conditions of employment incl ding proposals for ad# sting any grievances or < estions arising nder s ch agreement and e0ec ting a contract incorporating s ch agreements if re< ested !y either party ! t s ch d ty does not compel any party to agree to a proposal or to ma$e any concession. ........ Article 2:3. B ty to !argain collectively "hen there e0ists a collective !argaining agreement. Ehen there is a collective !argaining agreement, the d ty to !argain collectively shall also mean that

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neither party shall terminate nor modify s ch agreement d ring its lifetime. ;o"ever, either party can serve a "ritten notice to terminate or modify the agreement at least si0ty %3)- days prior to its e0piration date. At shall !e the d ty of !oth parties to $eep the stat s < o and to contin e in f ll force and effect the terms and conditions of the e0isting agreement d ring the 3)-day period andCor ntil a ne" agreement is reached !y the parties. ........ 1. DUTY TO BARGAIN DEFINED /he la" contemplates and defines t"o sit ations "hen the d ty to !argain e0istsD =it ation one, "hen there is yet no collective !argaining agreement %Art. 2:2-, and =it ation t"o, "here a C&A e0ists %Art. 2:3-. Ior =it ation 6ne, the d ty to !argain means in essence the m t al o!ligation of the employer and the employees ma#ority nion to meet and convene. /he purposes of the meeting and convening areD %1- to negotiate an agreement on the s !#ects ofD 2.1 2nresolved 'etition for 2nion Cancellation %a- "ages, %!- ho rs of "or$, and %c- all other terms and conditions of employment incl ding proposals for ad# sting grievances or < estions arising nder s ch agreement4 and %2- to e0ec te a contract incorporating s ch agreement if re< ested !y either party. /he (ind of compliance re< ired is prompt, e0peditio s, and in good faith. /he limitations or reservations of the d ty are that it does not compel any party to agree to a proposal or to ma$e a concession. Ior =it ation /"o, the d ty to !argain means all of the a!ove and, additionally, the o!ligation not to terminate or modify the C&A d ring its lifetime. & t 3) days !efore the C&A e0pires, either party may notify the other in "riting that it desires to terminate or modify the agreement. B ring the 3)-day period and ntil a ne" agreement is reached, the C&A remains in f ll force and effect4 the parties are d ty!o nd to $eep the stat s < o. /he la" therefore provides for a tomatic rene"al or e0tension of the C&A. /his 3)-day period nder Art. 2:3 refers to s !mission of proposals to renegotiate the nonrepresentational provisions of the C&A. At does not al"ays coincide "ith the 3)-day period mentioned in Articles 2:3-A and 2:3 pertaining to 8freedom period9 to resolve representation contest !et"een nions 1.1 Io r Iorms of 2@' in &argaining %1- fail re to meet and convene4 %2- evading the mandatory s !#ects of !argaining4 %3- !ad faith in !argaining, incl ding fail re or ref sal to e0ec te the collective agreement, if re< ested4 and %4- gross violation of the C&A. 2. FIRST U.L.P. IN BARGAINING" FAILURE OR REFUSAL TO MEET AND CONVENE An employer is g ilty of an nfair la!or practice in ref sing to !argain "ith the representative of a ma#ority of his employees. /o !argain in 2.2 =elling the Company Af an employer is g ilty of nfair la!or practice "hen he directly discharges his employees to forestall a demand for collective !argaining, he certainly sho ld not !e allo"ed to evade responsi!ility if he indirectly ca ses that discharge !y selling to a company that he $no"s is n"illing to accept his employees. /he !asic r le is that if the transfer of assets and employees from one employer to another leaves intact the identity of the employing enterprise, the transferors d ty to recognize and !argain "ith an inc m!ent nion devolves pon the transferee as 8s ccessor employer.9 /hat means that an ac< iring employer is a s ccessor to the !argaining o!ligations of his predecessor if there is a contin ity in the ! siness operation. 6nly a high degree of enterprise contin ity "ill # stify imposing o!ligations nder a contract "ith the nion to "hich the ne" employer "as not a party. A mere change in o"nership of a ! siness is ins fficient to alter a nions stat s as !argaining representative. 2.3 = ccessor 1mployerD Contin ity and Adentity An ma$ing the determination as to "hether an employer is s ccessor, the F@5& loo$s to the totality of circ mstances to determine "hether there has !een a s !stantial and material alteration in the employing enterprise. Af there is a s !stantial and material alteration in the employing enterprise, the ne" employer need not !argain "ith the inc m!ent nion. 2.4 Conversion to Andependent Iranchise or 6peration A decision to "ithdra" capital from a company-operated facility and relin< ish the operating control to an independent dealership lies very m ch at the core of entreprene rial control, and hence is not a mandatory s !#ect of !argaining 2.: Bo 1conomic 10igencies K stify 5ef sal to &argainJ good faith, an employer m st not only meet and confer "ith the nion "hich represents his employees, ! t also m st recognize the nion for the p rpose of collective !argaining. An addition, he m st recognize the nion as the !argaining representative of all the employees in the appropriate !argaining nit, even if they are not all mem!ers of the nion. /he d ty to !argain e0tends !eyond the period of contract negotiations, and applies to la!or-management relations d ring the term of the agreement. =ince a collective !argaining agreement does not define all the rights and o!ligations of the employer and his employees, negotiation of grievances is part and parcel of the !argaining process. /he fail re of ref sal of an employer to !argain collectively "ith his employees constit tes an en#oina!le nfair la!or practice not only nder the s !division of the Act dealing e0pressly "ith 8collective !argaining,9 ! t also nder the s !section ma$ing it an 8 nfair la!or practice9 toD 8interfere "ith, restrain or coerce employees in the e0ercise9 of their g aranteed rights, on the theory that ref sal !y an employer to !argain collectively "ith his employees constit tes 8interference9 "ith the latters right of self-organization.

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An employer has !een held not g ilty of a ref sal to !argain !y adamantly re6ecting the nions economic demands "here he is operating at a loss, on a lo" profit margin, or in a depressed ind stry, as long as he continues to negotiate. 2.3 Acts not Beemed 5ef sal to &argain /he d ty to !argain is not violated !yD %1- adoption of an adamant !argaining position in good faith, partic larly "hen the company is operating at a loss4 %2- ref sal to !argain over demands for commission of nfair la!or practices4 %3- ref sal to !argain d ring period of illegal stri$e. Af a nion engages in an illegal stri$e, the employer has no o!ligation to !argain ntil he is notified that the illegal stri$e has !een terminated. Ehere, p rs ant to an honest do !t, the employer has demanded additional proof or ac< isition of an official certification of !argaining agency, there is no o!ligation or d ty on the employers part to enter into negotiations ntil the demanded proof is presented pending the certification proceedings, nless it can !e esta!lished that the demand lac$s in good faith and is intended as an o!str ction to negotiations. Feither is the d ty to !argain violated "hereD %1- there is no re< est for !argaining4 %2- the nion see$s recognition for an inappropriately large nit4 %3- the nion see$s to represent some persons "ho are e0cl ded from the Act4 %4- the ran$-and-file other"ise4 nit incl des s pervisors or inappropriate
Ee agree "ith the prono ncement that it is not o!ligatory pon either side of a la!or controversy to precipitately accept or agree to the proposals of the other. & t an erring party sho ld not !e tolerated and allo"ed "ith imp nity to resort to schemes feigning negotiations !y going thro gh empty gest res.

2.,a 5epetition in Bivine Eord 2niversity


8A companys ref sal to ma$e co nter proposal if considered in relation to the entire !argaining process, may indicate !ad faith and this is especially tr e "here the 2nions re< est for a co nter proposal is left nans"ered.9 *oreover, the Co rt added in the same case that 8it is not o!ligatory pon either side of a la!or controversy to precipitately accept or agree to the proposals of the other. & t an erring party sho ld not !e tolerated and allo"ed "ith imp nity to resort to schemes feigning negotiations !y going thro gh empty gest res.9

3. SECOND U.L.P. IN BARGAINING" EVADING THE MANDATORY SUB&ECTS At is the o!ligation of the employer and the employees representative to !argain "ith each other "ith respect to 8"ages, ho rs, and other terms and conditions of employment.9 /hey are stat tory or 8mandatory9 proposals. An employers ref sal to negotiate a mandatory s !#ect of !argaining is an nfair la!or practice altho gh the employer has every desire to reach agreement and earnestly and in all good faith !argains to that end. 6n the other hand, an employers d ty to !argain is limited to the mandatory !argaining s !#ects4 as to other matters, he is free to !argain or not to !argain. A mere remote, direct, or incidental impact is ins fficient to render a s !#ect a mandatory s !#ect of !argaining4 in order for a matter to !e s !#ect to mandatory collective !argaining, it m st materially or significantly affect the terms or conditions of employment. 3.1 Eages and 1mployment Conditions /he term 8"ages,9 as sed in 2+ 2=C= =ec. 1:,%d-, has !een held to incl de not only compensation ! t also other emol ments of val e f rnished !y the employer to his employees. 2nder o r @a!or Code, 8"age9 refers to rem neration or earnings, ho"ever designated, capa!le of !eing e0pressed in terms of money, etc.
=ince the passage of the /aft-;artley Act, the Fational @a!or 5elations &oard has held that ind strial pensions, gro p ins rance, and merit increases all are matters a!o t "hich employers m st !argain collectively.

%:- the demand for recognition and !argaining is made "ithin the year follo"ing a certification election in "hich the clear choice "as no nion and no ad interim significant change has ta$en place in the nit4 %3- the nion ma$es nla"f l !argaining demands. 2.( Alleged Anterference in the =election of the 2nions Fegotiation 'anel
An order to sho" that the employer committed 2@' nder the @a!or Code, s !stantial evidence is re< ired to s pport the claim. = !stantial evidence has !een defined as s ch relevant evidence as a reasona!le mind might accept as ade< ate to s pport a concl sion.

/he follo"ing are e0amples of matters considered as mandatory s !#ects of !argainingD %1- Eages and other types of compensation, incl ding merit increases4 %2- Eor$ing ho rs and "or$ing days, incl ding "or$ shifts4 %3- Lacations and holidays4 %4- &on ses4 %:- 'ensions and retirement plans4 %3- =eniority4 %(- /ransfer4

2., Fon-reply to 'roposal4 C&A Amposed on 1mployer


Collective !argaining, designed to sta!ilize the relation !et"een la!or and management and to create a climate of so nd and sta!le ind strial peace. At is a legal o!ligation, so m ch so that Article 24, of the @a!or Code ma$es it an nfair la!or practice for an employer to ref se ?to meet and convene promptly and e0peditio sly in good faith for the p rpose of negotiating an agreement "ith respect to "ages, ho rs of "or$, and all other terms and conditions of employment.

24
%,- @ay-offs4 %+- 1mployee "or$loads4 %1)- Eor$ r les and reg lations4 3.: Ar!itration, =tri$e-Lote, or Fo-=tri$e Cla se %11- 5ent of company ho ses4 %12- 2nion sec rity arrangements. 3.1a Eage Agreement4 8=olomonic9 Approach
Ee ta$e note of the ?middle gro nd? approach employed !y the =ecretary in this case "hich. "e do not necessarily find to !e the !est method of resolving a "age disp te. *erely finding the mid"ay point !et"een the demands of the company and the nion, and ?splitting the difference? is a simplistic sol tion that fails to recognize that the parties may already !e at the limits of the "age levels they can afford. At may lead to the danger too that neither of the parties "ill engage in principled !argaining4 the company may $eep its position artificially lo" "hile the nion presents an artificially high position, on the fear that a ?=olomonic? sol tion cannot !e avoided. /h s, rather than enco rage agreement, a ?middle gro nd approach? instead promotes a ?play safe? attit de that leads to more deadloc$s than to s ccessf lly negotiated C&As.

employees "ho crossed a pic$et line aro nd the employers plant is an nla"f l ref sal to !argain, since the right not to "ithdra" fines is an internal nion affairs, a matter involving relations !et"een employees and their nions, and therefore not a mandatory !argaining item.

An employer may la"f lly !argain to an impasse over his proposal that the collective !argaining agreement incl de an ar!itration cla se or a no-stri$e cla se "hich prohi!its the employees from stri$ing d ring the life of the agreement. 3.3 Fo-@oc$o t Cla se4 Cla se Ii0ing Contract al /erm An employers stat tory d ty to !argain re< ires him to negotiate over the nions proposal that their agreement incl de a cla se !inding him not to loc$ o t the employees. An employers ref sal to !argaining over the d ration of the contract to !e entered into is also an nfair la!or practice. & t an employers o!ligation to enter into a collective !argaining agreement does not re< ire that the employer enter into an naltera!le o!ligation for an e0tended period of time, and many collective !argaining agreements contain a cla se permitting termination or modification !y either party pon prescri!ed notice. 3.( =igning &on s =igning !on s is a grant motivated !y good"ill created "hen a C&A is s ccessf lly negotiated and signed !et"een the employer and the nion. Ehere good"ill does not e0ist, "hy as$ for a signing !on sJ
An contract al terms, a signing !on s is # stified !y and is the consideration paid for the good"ill that e0isted in the negotiations that c lminated in the signing of a C&A. Eitho t the good"ill, the payment of a signing !on s cannot !e # stified and any order for s ch payment, to o r mind, constit tes grave a! se of discretion.

3.2 Eor$loads and Eor$ 5 les 1mployee "or$loads are a mandatory s !#ect of !argaining. 1mployer r les concerning coffee !rea$s, l nch periods, smo$ing, employee discipline, and dress are also mandatory s !#ects of !argaining, as are plant safety r les and general reg lations. Company r les relating to safety and "or$ practices come "ithin the meaning of the phrase 8other terms and conditions of employment9 as sed in the Act and, therefore, constit te a mandatory s !#ect of collective !argaining. 3.2a Code of Cond ct Eor$ r les and reg lations are commonly compiled into a !oo$let s ally called 8Code of Biscipline9 or 8Code of Cond ct.9 = ch dos and donts for employees of the enterprise are "or$ r les, forming part of terms and conditions of employment, that are proper s !#ects of collective !argaining. ;ardly may the employer contend that they are 8non-negotia!le9 matters. 3.3 *anagement 'rerogatives Cla se An employer does not commit an nfair la!or practice !y insisting, to the point of a !argaining impasse, on the incl sion in the contract of a management prerogatives cla se, even tho gh some of the matters covered !y the cla se are 8conditions of employment9 "hich are mandatory s !#ects of !argaining nder 2+ 2=C= =ec. 1:,%d-. /h s, an employers insistence that its decisions regarding hiring and ten re of employment sho ld not !e revie"a!le !y ar!itration is not a ref sal to !argain. 3.4 2nion Biscipline Cla se An employer may !argain to an impasse over his proposal that the nion eliminate a piece"or$ ceiling imposed !y a nion r le "hich s !#ects mem!ers to discipline for e0ceeding the prod ction < ota. ;o"ever, an employers insistence to the point of a !argaining impasse on the nions "ithdra"al of fines imposed on mem!er-

An short, if the reason !ehind a signing !on s is a!sent, no signing !on s need !e given. 3., Fo B ty to Agree 1ven on *andatory = !#ects /he Act does not compel agreements !et"een employers and employees, and neither party is legally o!ligated to yield even on a mandatory !argaining s !#ect. Ehere the s !#ect of the disp te is a mandatory !argaining s !#ect, either party may !argain to an impasse as long as he !argains in good faith. /he d ty to !argain does not o!ligate a party to ma$e concessions or yield a position fairly held. ;ence, an employers adamant insistence on a !argaining position is not necessarily a ref sal to !argain in good faith. 1ven if the negotiating party th m!s do"n the other partys proposals, there is no violation of the d ty to !argain7hence, no 2@'7as long as the negative reply can !e e0plained in good faith. 3.+ Fon-mandatory = !#ects An employer cannot insist, to the point of creating a !argaining impasse, on the incl sion of a provision o tside the scope of the stat tory !argaining s !#ects, even if he acts in good faith. 6n the other hand, it is la"f l to insist on the incl sion of a provision in a collective !argaining agreement if the provision is "ithin the scope of a stat tory s !#ect of !argaining.

2:
An employer !argains to an impasse over a non-mandatory !argaining s !#ect "hen he ref ses to reach any agreement "ith the nion nless the nion capit lates to him on that s !#ect. ;o"ever, it has !een held that a !argaining impasse may !e reached over a non-mandatory !argaining s !#ect altho gh that s !#ect is not the sole ca se for the parties fail re to agree. Ehen a s !#ect nder disc ssion is not mandatory, it may !e disc ssed if !oth parties agree, ! t a stri$e or loc$o t may not !e sed to compel a negotiation or agreement. Ehile most matters that might !e disc ssed or proposed in collective !argaining are li$ely to !ear some relation, even if ten o s, to 8"age, ho rs, and other terms and conditions of employment,9 not all proposals that someho" respond to a pro!lem that is c stomarily !argained a!o t may themselves !e insisted pon to impasse. &y once !argaining and agreeing on a permissive s !#ect of !argaining, the parties do not ma$e the s !#ect a mandatory topic of f t re !argaining. 3.1) &argaining to the 'oint of AmpasseD Fot necessarily &ad Iaith /he adamant insistence on a !argaining position to the point "here the negotiations reach an impasse does not esta!lish !ad faith. Feither can !ad faith !e inferred from a partys insistence on the incl sion of a partic lar s !stantive provision nless it concerns trivial matters or is o!vio sly intolera!le.
/he < estion as to "hat are mandatory and "hat are merely permissive s !#ects of collective !argaining is of significance on the right of a party to insist on his position to the point of stalemate. A party may ref se to enter into a collective !argaining contract nless it incl des a desired provision as to a matter "hich is a mandatory s !#ect of collective !argaining4 ! t a ref sal to contract nless the agreement covers a matter "hich is not a mandatory s !#ect is in s !stance a ref sal to !argain a!o t matters "hich are mandatory s !#ects of collective !argaining, and it is no ans"er to the charge of ref sal to !argain in good faith that the insistence on the disp ted cla se "as not the sole ca se of the fail re to agree or that agreement "as not reached "ith respect to other disp ted cla ses.

A !argaining impasse over an iss e e0ists "here good faith !argaining on the part of the parties has failed to resolve the iss e and there are no definite plans for f rther efforts to !rea$ the deadloc$. 8Ampasse,9 "ithin the meaning of the federal la!or la"s, pres pposes reasona!le effort at good faith !argaining "hich, despite no!le intentions, does not concl de in an agreement !et"een the parties. An the F@5&s vie", "hether a !argaining impasse e0ists is a matter of # dgment dependent on s ch factors as the !argaining history, the parties good faith in negotiations, the length of the negotiations, the importance of the iss e or iss es as to "hich there is disagreement, and the contemporaneo s nderstanding of the parties as to the state of negotiations. 3.11a B ty to &argain Ehen /here As Beadloc$ or Ampasse Beadloc$ does not mean the end of !argaining. At signals rather the need to contin e the !argaining "ith the assistance of a third party as conciliator or ar!itrator "hose first aim is to get the parties !ac$ to the negotiating ta!le and help them craft a "in-"in sol tion. 3.11! =tri$e or @oc$o t in Case of Beadloc$ &argaining may proceed smoothly7and this is the "ish of most negotiation panels7! t it may also !e marred !y insin ations, mis nderstandings, and apparently irreconcila!le !argaining positions. Beadloc$ develops. An fact, deadloc$ may occ r anytime for vario s reasons s ch as naccepta!ility of a proposal or co nter proposal, grandstanding of a negotiator, a tocratic or arrogant stance, or imprecise "ording of a stip lation. /he la" %Art. 233- recognizes !argaining deadloc$ as a valid reason to declare a stri$e or loc$o t. =tri$eC loc$o t presents a ma#or deviation from the preferred smooth ro te of !argaining. At this point of !argaining scenario, stri$eC loc$o t is s pposed to !e a method of resolving an impasse, a device to constrain the parties to end an impasse and go !ac$ to the negotiation ta!le. & t stri$eC loc$o t, "hile meant to !e a sol tion, fre< ently !ecomes a pro!lem in itself.
Altho gh the nion>s petition "as for ?comp lsory ar!itration,? the s !se< ent agreement of petitioner to s !mit the matter for ar!itration in effect made the ar!itration a vol ntary one. /he essence of vol ntary ar!itration, after all, is that it is !y agreement of the parties, rather than comp lsion of la", that a matter is s !mitted for ar!itration. At does not matter that the person chosen as ar!itrator is a la!or ar!iter "ho, nder Art. 21( of the @a!or Code, is charged "ith the comp lsory ar!itration of certain la!or cases. /here is nothing in the la" that prohi!its these la!or ar!iters from also acting as vol ntary ar!itrators as long as the parties agree to have him hear and decide their disp te.

=tated in another "ay, the r ling means that !argaining to the point of deadloc$ may or may not amo nt to !argaining in !ad faith depending on "hether the insistence refers to a mandatory or a non-mandatory s !#ect of !argaining. /he reason is that the d ty to !argain re< ires meeting and convening on terms and conditions of employment ! t does not re< ire assent to the other partys proposals. 6ver a non-mandatory s !#ect, on the other hand, a party may not insist on !argaining to the point of impasse, other"ise his insistence can !e constr ed as !argaining in !ad faith. At may !e constr ed as evasion of the d ty to !argain4 s ch evasion is 2@'. /he a!ove r lings do not mean that non-mandatory s !#ects cannot !e proposed or that the proponent cannot demand serio s disc ssion of s ch proposal. Ehat the r lings for!id is the post re of ma$ing settlement on a non-mandatory s !#ect a precondition to the disc ssion or settlement of a mandatory s !#ect. Af a non-mandatory s !#ect is proposed and agreed pon, the agreeing party, !y itself, is !inding. 3.11 Ehen As /here Beadloc$ or AmpasseJ

. THIRD U.L.P. IN BARGAINING" BAD FAITH &argaining deadloc$ may !e precipitated not only !y hard-line positions on mandatory or non-mandatory s !#ects. At may also arise !eca se of lac$ of good faith in !argaining. Good-faith !argaining demands more than sterile and repetitive disc ssion of formalities precl ding act al negotiation, more than formal replies "hich constit te in effect a ref sal to treat "ith the nion, and more than a "illingness to enter pon a sterile disc ssion of nion-management differences. At re< ires a sincere effort to reach agreement, altho gh it does not re< ire agreement itself. *oreover, the d ty to !argain does not end "ith the negotiation of the agreement.

23
/he d ty to !argain collectively may !e violated "itho t a general fail re of s !#ective good faith, and there is no occasion to consider the iss e of good faith if a party ref ses even to negotiate in fact a!o t any of the mandatory s !#ects. AF employer cannot !e g ilty of a ref sal to !argain if the nion is not itself !argaining in good faith. 4.1 Betermination of Good Iaith
/he cr cial < estion "hether or not a party has met his stat tory d ty to !argain in good faith typically t rns on the facts of the individ al case. /here is no per se test of good faith in !argaining. Good faith or !ad faith is an inference to !e dra"n from the facts and is largely a matter for the F@5&s e0pertise. /o some degree, the < estion of good faith may !e a < estion of credi!ility.

Fonetheless, the prior ad# dication of !ad faith on an earlier occasion is not itself s !stantial evidence of present !ad faith.
As the Co rt held in the case of 3io( Loy #$ 7LR , 141 =C5A 1(+, 1,3 %1+,3-, the company>s ref sal to ma$e co nter-proposal to the nion>s proposed C&A is an indication of its !ad faith.

4.3a &ad IaithD = rface &argaining4 =hifting &argaining 'ositions4 &l e =$y &argaining 8= rface !argaining,9 "hich means a sophisticated pretense in the form of apparent !argaining, does not satisfy the stat tory d ty to !argain. /he d ty is not discharged !y merely meeting together or simply manifesting a "illingness to tal$. At re< ires more than a "illingness to enter pon a sterile disc ssion of nion-management differences. Collective !argaining is not simply an occasion for p rely formal meetings !et"een management and la!or "hile each maintains an attit de of 8ta$e it or leave it,9 ! t pres pposes a desire to reach an ltimate agreement to enter into a collective !argaining contract. An employers proposals "hich co ld not !e offered "ith any reasona!le e0pectation that they "o ld !e accepted !y the nion constit te s rface !argaining. 5epeated shifts in position and attit de on the part of an employer "henever a tentative agreement is reached are evidence of a ref sal to !argain collectively in good faith. At has also !een held that an employer cannot re#ect a nions acceptance of the employers co nter offer on the gro nd that the nion had earlier re#ected the offer.
= rface !argaining is defined as ?going thro gh the motions of negotiating? "itho t any legal intent to reach an agreement. /he resol tion of s rface !argaining allegations never presents an easy iss e. /he determination of "hether a party has engaged in nla"f l s rface !argaining is s ally a diffic lt one !eca se it involves, at !ottom, a < estion of the intent of the party in < estion, and s ally s ch intent can only !e inferred from the totality of the challenged partys cond ct !oth at and a"ay from the !argaining ta!le. At involves the < estion of "hether an employers cond ct demonstrates an n"illingness to !argain in good faith or is merely hard !argaining. 0 0 0 Ee, li$e"ise, do not agree that the 2nion is g ilty of 2@' for engaging in !l e-s$y !argaining or ma$ing e0aggerated or nreasona!le proposals.

A fair criterion of good faith in collective !argaining re< ires that the parties involved deal "ith each other "ith open and fair mind and sincerely endeavor to overcome o!stacles or diffic lties e0isting !et"een them to the end that employment relations may !e esta!lished and o!str ction to the free flo" of commerce prevented. *ere pretended !argaining "ill not s ffice4 neither m st the mind !e hermetically sealed against the tho ght of entering into an agreement. /o do less that is re< ired !y the standards of good faith and cond ct is a ref sal to !argain collectively and violates the spirit and intent of the Act. 4.2 Ehen Can &argaining in &ad Iaith 6cc rJ &argaining in !ad faith is considered 2@' nder Art, 24,%g-. & t if one "ill !e charged "ith !argaining in !ad faith, the charge sho ld !e raised "hile the !argaining is in progress. Ehen the !argaining is finished and the C&A has !een e0ec ted vol ntarily !y the parties, a charge of !argaining in !ad faith is too late and ntena!le.
Eith the e0ec tion of the C&A, !ad faith !argaining can no longer !e imp ted pon any of the parties thereto. All provisions in the C&A are s pposed to have !een #ointly and vol ntarily incorporated therein !y the parties. /his is not a case "here private respondent e0hi!ited an indifferent attit de to"ards collective !argaining !eca se the negotiations "ere not the nilateral activity of petitioner nion. /he C&A is proof eno gh that private respondent e0erted ?reasona!le effort at good faith !argaining.? /he nions proposal, not !eing part of the signed contract, cannot serve as !asis of holding the management g ilty of !ad faith in !argaining or in implementing their contract as signed.

4.3! &ad IaithD Anfle0i!le Bemands4 =tri$e Amid Fegotiation 4.3c &ad IaithD &o l"arism4 /a$e-At-or-@eave-At &argaining
/he ne" plan "as threefold. As negotiations approached, the Company "o ld se its local management personnel on the desires of the "or$ force on the type and level of !enefits4 these "ere then translated into specific proposals, "hose cost and effectiveness "ere researched in order to determine an attractive !argaining offer "ithin the Company>s means4 the Company then attempted to ?sell? its proposals to its employees and the general p !lic thro gh a p !licity campaign in plant ne"spapers, ! lletins, letters, television and radio anno ncements and personal contacts. /he Company anno nced in negotiations that it re#ected the s al 8horse trading9 approach to !argaining, "ith each side event ally compromising initial nreasona!le positions4 it advertised its initial proposals as 8fair9 and 8firm.9 /ho gh "illing to accept 2nion s ggestions !ased on facts it might have overloo$ed, the Company ref sed to change its position simply !eca se the 2nion disagreed "ith it. Ee have already indicated that one of the central tenets of ?the &o l"are approach? is that the ?prod ct? or ?firm, fair offer? m st !e mar$eted vigoro sly to the ?cons mers? or employees, to convince them that the Company, and not the 2nion, is their tr e representative.

4.3 Anstances of &ad IaithD Belay of, or Amposing /ime @imit on, Fegotiations An n"arranted delay in negotiations may !e evidence of !ad faith on the part of the employer. ;o"ever, an employer has !een held not g ilty of !ad faith for failing to complete a collective !argaining contract d ring a 3-year period, "here many conferences had !een held d ring the period, even tho gh the employer had insisted on a no-stri$e cla se and had raised "ages d ring negotiations for the p rpose of meeting competition. /he Fational @a!or 5elations &oard of the 2nited =tates reported that 8lac$ of good faith is indicated "here the employer engages in nfair la!or practices "hile !argaining "ith the nion4 "here it engages in dilatory tactics d ring negotiations4 or "here it instit tes a "age c t !y nilateral action and "itho t cons lting the ma#ority representative.9

2(
/he aim, in a "ord, "as to deal "ith the 2nion thro gh the employees, rather than "ith the employees thro gh the 2nion.

4.4 Fot &ad Iaith to 'ropose *odifications to the 10piring C&A At is not !ad-faith !argaining "hen a party proposes modifications to the e0piring C&A. /he second sentence of Article 2:3 e0plicitly refers to serving a "ritten notice 8to terminate or modify9 the agreement. *odification may mean addition to, s !traction from, or other "ays of changing the contents or phraseology of contents of the e0piring C&A. At does not connote a one-direction movement. & t "hichever "ay it is proposed to go, the proposed changes re< ire honest e0planation. Ehat "as e0cl ded from the old C&A may !e proposed for incl sion in the forthcoming C&A, or vice-versa. Fegotiation precisely contemplates proposals and co nter-proposals. 4.: Giving of Anformation 'art of good-faith !argaining, and a method to e0pedite the process, is s pplying of information to the other party, as re< ired !y la". At sho ld !e recalled that nder Art. 242 one of the rights of a legitimate la!or organization "hich is certified as the e0cl sive !argaining agent, is to as$ for and !e f rnished "ith the employers ann al a dited financial statements, incl ding the !alance sheet and the profit and loss statement. = ch information is cr cial in !argaining. An employer is nder a d ty, pon re< est of the !argaining representative, to provide information relevant to the iss es at the !argaining ta!le. 5ef sal to provide relevant information after the same has !een re< ested constit tes per se violation of the d ty to !argain. 5elevant information or data may incl de information concerning the employees in the !argaining nit, s ch as their names, addresses, and seniority standing, or concerning the financial stat s of the employer, especially "here needed to s !stantiate claims of ina!ility to pay. $. FOURTH U.L.P. IN BARGAINING" GROSS VIOLATION OF THE CONTRACT At this stage, the negotiations are over4 the doc ment has !een signed, sealed, and delivered. Amplementation sho ld follo". & t at this stage the collective !argaining process is not yet over, and the d ty to !argain is still operative !eca se s ch d ty f rther re< ires faithf l adherence to the contract al provisions. Liolation of the contract amo nts to 2@', if the violation is 8gross.9 %. RATIFICATION REDUIREMENTS BY THE CBU' MANDATORY

for at least five days in t"o conspic o s places in the esta!lishment !efore ratification, to ena!le the "or$ers to clearly inform themselves of its provisions. *oreover, the C&A s !mitted to the *6@1 did not carry the s"orn statement of the nion secretary, attested !y the nion president, that the C&A had !een d ly posted and ratified, as re< ired !y the Amplementing 5 les and 5eg lations. /he co rt r led that these re< irements !eing mandatory, non-compliance there"ith rendered the said C&A ineffective. 3.1 Anvalid 5atification 3.2 Ehen 5atification Fot Feeded 5atification of the C&A !y the employees in the !argaining nit is not needed "hen the C&A is a prod ct of an ar!itral a"ard !y appropriate government a thority or !y a vol ntary ar!itrator. /he ar!itral a"ard may res lt from vol ntary ar!itration nder Art.232 or from the secretarys ass mption of # risdiction or certification of the disp te to the F@5C, nder Art. 233%g-. An any of those sit ations the C&A still needs to !e posted in t"o conspic o s places in the "or$place, ! t the posting is for the information of, and not ratification !y, the employees affected. *oreover, the C&A has to !e registered "ith the B6@1 regional office. /o re< ire ratification of the C&A in case of ar!itral a"ards "ill !e inconsistent "ith the nat re of ar!itration as a disp te-settlement device. /he preceding comment, ho"ever, does not mean that the ar!itral a"ard is !eyond < estion. ertiorari on proper gro nds is availa!le. 3.3 5atified ! t 2nsigned @ac$ of the p rely ministerial act of signing the formal contract did not o!viate the fact that there "as a !inding contract. 3.4 2nratified ! t Amplemented
/he parties to a collective agreement are re< ired to f rnish copies to the appropriate 5egional 6ffice "ith accompanying proof of ratification !y the ma#ority of all the "or$ers in the !argaining nit. /his "as not done in the case at !ar. & t "e do not declare the C&A invalid or void considering that the employees have en#oyed !enefits from it. /hey cannot receive !enefits nder provisions favora!le to them and later insist that the C&A is void simply !eca se other provisions t rn o t not to the li$ing of certain employees. At is ini< ito s to receive !enefits from a C&A and later on disclaim its validity.

+. E!ECUTION OF CONTRACT A party to a collective !argaining may !e re< ired to sign a contract "here the agreement has !een reached !y the parties and only one partys ref sal to e0ec te a contract is preventing its !eing carried into effect. = ch ref sal is an nfair la!or practice (.1 2n"ritten or 2nsigned Agreement American co rts have held that a collective !argaining agreement is valid tho gh not red ced to "riting or signed, if neither party re< ests a "ritten instr ment.

/he agreement negotiated !y the employees !argaining agent sho ld !e ratified or approved !y the ma#ority of all the "or$ers in the !argaining nit. /he proper ratifying gro p is not # st the ma#ority nion ! t the 1.E20it3 29 .ll t-e F20Ge05 i4 t-e A.0C.i4i4C H4it represented in the negotiation. /he ratification and the manner of doing it are mandatory. /he Amplementing 5 les re< ire posting of the C&A in t"o conspic o s places for five days. An one case, the C&A "as not posted

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(.2 1ffect of =igning on 6ther Bisp tes ,. REGISTRATION OF C.B.A. /he collective agreement, having !een properly ratified, sho ld !e registered "ith the B6@1 5egional 6ffice "here the !argaining nion is registered or "here it principally operates. Art. 231 re< ires the registration "ithin thirty %3- calendar days from e0ec tion of the agreement. * lti-employer collective !argaining agreements shall !e filed "ith the & rea . At is !elieved that fail re to register the C&A does not ma$e it invalid or nenforcea!le. Ats non-registration, ho"ever, renders the contract!ar r le inoperative. ,.1 5e< irements for 5egistration
=ection 2. 5e< irements for registration. - /he application for C&A registration shall !e accompanied !y the original and t"o %2- d plicate copies of the follo"ing doc ments "hich m st !e certified nder oath !y the representative%s- of the employer%s- and la!or nion%s- concerned %a- the collective !argaining agreement4 %!- a statement that the collective !argaining agreement "as posted in at least t"o %2- conspic o s places in the esta!lishment or esta!lishments concerned for at least five %:- days !efore its ratification4 and %c- a statement that the collective !argaining agreement "as ratified !y the ma#ority of the employees in the !argaining nit of the employer or employers concerned. Fo other doc ment shall !e re< ired in the registration of collective !argaining agreements

Any agreement on s ch other provisions of the Collective &argaining Agreement entered into "ithin si0 %3- months from the date of e0piry of the term of s ch other provisions as fi0ed in s ch Collective &argaining Agreement, shall retroact to the day immediately follo"ing s ch date. Af any s ch agreement is entered into !eyond si0 months, the parties shall agree on the d ration of retroactivity thereof. An case of a deadloc$ in the renegotiation of the Collective &argaining Agreement, the parties may e0ercise their rights nder this Code. %As amended !y =ection 21, 5ep !lic Act Fo. 3(1:, *arch 21, 1+,+-. ........ 1. DURATION OF A C.B.A. 5A Fo. +(1: %*arch 21, 2+,+- has introd ced thro gh Art. 2:3-A a significant change in setting the d rations or terms of a C&A at five years for the 8representation aspect9 and not more than three years for 8all other provisions.9 /he 8representation aspect9 refers to the identity and ma#ority stat s of the nion that negotiated the C&A as the e0cl sive representative of the !argaining nit. 8All other provisionsD simply refers to the rest of the C&A, economic as "ell as non-economic other than representational. /he conference agreed to ma$e the 8terms and conditions9 or 8economic9 provision of the C&A good only for three years so as to protect the economic gains of the "or$ers.
6!vio sly, the framers of the la" "anted to maintain ind strial peace and sta!ility !y having !oth management and la!or "or$ harmonio sly together "itho t any dist r!ance. /h s, no o tside nion can enter the esta!lishment "ithin five %:- years and challenge the stat s of the inc m!ent nion as the e0cl sive !argaining agent. @i$e"ise, the terms and conditions of employment %economic and non-economic- cannot !e < estioned !y the employers or employees d ring the period of effectivity of the C&A. /he C&A is a contract !et"een the parties and the parties m st respect the terms and conditions of the agreement. Fota!ly, the framers of the la" did not give a fi0ed term as to the effectivity of the terms and conditions of employment. At can !e gleaned from their disc ssions that it "as left to the parties to fi0 the period. /he iss e as to the term of the non-representation provisions of the C&A need not !ela!ored especially "hen "e ta$e note of the *emorand m of the =ecretary of @a!or dated Ie!r ary 24, 1++4. An said memorand m, the =ecretary of @a!or had occasion to clarify the term of the renegotiated terms of the C&A vis-a-vis the term of the !argaining agent, to "itD As a matter of policy the parties are enco rages %sic- to enter into a renegotiated C&A "ith a term "hich "o ld coincide %sic- "ith the aforesaid five %:- year term of the !argaining representative. An the event ho"ever, that the parties, !y m t al agreement, enter into a renegotiated contract "ith a term of three %3- years or one "hich does not coincide "ith the said :-year term, and said agreement is ratified !y ma#ority of the mem!ers in the !argaining nit, the s !#ect contract is valid and legal and therefore, !inds the contracting parties. /he same "ill ho"ever not adversely affect the right of another nion to challenge the ma#ority stat s of the inc m!ent !argaining agent "ithin si0ty %3)- days !efore the lapse of the original five %:- year term of the C&A.

/he application may !e denied if the s pporting doc ments are incomplete or not verified nder oath. /he denial, if !y the 5egional office, is appeala!le to the & rea "ithin ten %1)- days or to the =ecretary if the denial is !y the & rea . :. AUTOMATIC RENEWAL OF CBA /he parties shall contin e the C&A in 8f ll force and effect9 ntil they reach a ne" agreement.
At is clear from the a!ove provision of la" that ntil a ne" Collective &argaining Agreement has !een e0ec ted !y and !et"een the parties, they are d ty-!o nd to $eep the stat s < o and to contin e in f ll force and effect the terms and conditions of the e0isting agreement. /he la" does not provide for any e0ception nor < alification as to "hich of the economic provisions of the e0isting agreement are to retain force and effect, therefore, it m st !e nderstood as encompassing all the terms and conditions in the said agreement.

........ Article 2:3-A. /erms of a collective !argaining agreement. Any Collective &argaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, !e for a term of five %:- years. Fo petition < estioning the ma#ority stat s of the inc m!ent !argaining agent shall !e entertained and no certification election shall !e cond cted !y the Bepartment of @a!or and 1mployment o tside of the si0ty-day period immediately !efore the date of e0piry of s ch five-year term of the Collective &argaining Agreement. All other provisions of the Collective &argaining Agreement shall !e renegotiated not later than three %3- years after its e0ec tion.

2. EFFECTIVITY AND RETROACTIVITY OF A C.B.A. Af the C&A is the very first for the !argaining nit, the Code does not state any r le on the C&As effectivity date. /he parties have to decide it for themselves. & t if the ens ing C&A is rene"al, modification or renegotiation of an e0piring one, the Code offers a form la for the effectivity date. Article 2:3-A provides that the ens ing agreement, if

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entered into "ithin si0 %3- months from e0piry of the old one, shall retroact to the date follo"ing s ch e0piry date4 th s, if the C&A e0pired on Becem!er 31 and the ne" one is concl ded on, say, *arch 31, its effectivity date is Kan ary 1. Af, on the other hand, the ne" agreement is concl ded after K ne 3), then the matter of retroaction and the possi!le retroactive date are left to the parties. Ehen, precisely, is the date an agreement is 8concl ded9 or 8entered into9J
/he determining point is the date the parties agreed, not the date they signed. Art. 2:3-A refers merely to an ?agreement? "hich, according to &lac$>s @a" Bictionary is ?a coming together of minds4 the coming together in accord of t"o minds on a given proposition.? /his is similar to Art. 13): of the Civil Code>s definition of ?contract? as ?a meeting of minds !et"een t"o persons.? /he t"o terms, ?agreement? and ?contract,? are indeed similar, altho gh the former is !roader than the latter !eca se an agreement may not have all the elements of a contract. As in the case of contracts, ho"ever, agreements may !e oral or "ritten. ;ence, even "itho t any "ritten evidence of the Collective &argaining Agreement made !y the parties, a valid agreement e0isted in this case from the moment the minds of the parties met on all matters they set o t to disc ss, as provided nder Art. 131: of the Civil Code.

/he policy, !asically, is freedom at the "or$place. /he la", tr e to the tenets of free enterprise system, allo"s management and la!or to fashion the contents and incidents of their relationship. Af there is disp te !et"een the parties, the responsi!ility to solve it devolves pon them primarily, not pon the government. Government intervention is the e0ception rather than the r le. /his anti-in# nction policy applies even as regards "age-fi0ing !y the "age commission or regional "age !oards. *oreover, any in# nctive order in 8non-national interest9 disp tes can !e directed only against the illegal acts !eing committed in connection "ith the la!or disp te4 it cannot !e directed against the disp te itself.
/here is no po"er the e0ercise of "hich is more delicate "hich re< ires grater ca tion, deli!eration, and so nd discretion, or %"hich is- more dangero s in a do !tf l case than the iss ing of an in# nction4 it is the strong arm of e< ity that never o ght to !e e0tended nless to cases of great in# ry, "here co rts of la" cannot afford an ade< ate or commens rate remedy in damages. /he right m st !e clear, the in# ry impending or threatened, so as to !e averted only !y protection preventive process of in# nction.

1.1 5eason of the Fo-An# nction 'olicy /he la!or in# nction is an employers most effective remedy in la!or disp te. ;o"ever narro" its scope and form, the iss ance of an in# nction for any p rpose in a la!or disp te "ill generally tip the scales of the controversy. /he iss ance of an in# nction in the early phases of a stri$e can critically s"ay the !alance of the economic str ggle against the nion. 1nforced !y the co rts contempt po"ers, even a preliminary in# nction is an effect al stri$e-!rea$ing "eapon !eca se so m ch time ordinarily elapses !et"een the iss ance of a preliminary in# nction and the time "hen a final decree can !e revie"ed on appeal. 1.2 An# nction Ass ed !y 5eg lar Co rt, Ehen 'roper 5eg lar co rts are "itho t a thority to iss e in# nction orders in cases involving or originating from la!or disp tes even if the complaint "as filed !y non-stri$ing employees and the employer "as also made a respondent to the action or even if the complainant "as a c stomer of the stri$e-!o nd employer or a sister company of the stri$e-!o nd employer, "hose premises "ere pic$eted !y the stri$ers.
/he co rt may iss e an in# nction, "hether temporary or permanent, as provided in said section of 5ep !lic Act ,(:, only in a case involving or gro"ing o t of a la!or disp te.

2.1 1ffectivity of C&A Concl ded After =i0 *onths from 10piration of 6ld C&A =ignificantly, the la" does not specifically cover the sit ation "here si0 months have elapsed ! t the parties have reached no agreement "ith respect to effectivity. An this event ality, "e hold that any provision of la" sho ld then apply, for the la" a!hors a vac m.
6ne s ch provision is the principle of hold over, i.e., that in the a!sence of a ne" C&A, the parties m st maintain the status /uo and m st contin e in f ll force and effect the terms and conditions of the e0isting agreement ntil a ne" agreement is reached. An this manner, the la" prevents the e0istence of a gap in the relationship !et"een the collective !argaining parties. Another legal principle that sho ld apply is that in the a!sence of an agreement !et"een the parties, then, an ar!itrated C&A ta$es on the nat re of any # dicial or < asi# dicial a"ard4 it operates and may !e e0ec ted only prospectively nless there are legal # stifications for its retroactive application.

3. E!TENSION OF EFFECTIVITY OF C.B.A.) WHEN VALID 3.1 /en-Qear = spension of C&A ........ Article 2:4. An# nction prohi!ited. Fo temporary or permanent in# nction or restraining order in any case involving or gro"ing o t of la!or disp tes shall !e iss ed !y any co rt or other entity, e0cept as other"ise provided in Articles 21, and 234 of this Code. %As amended !y &atas 'am!ansa &ilang 22(, K ne 1, 1+,2-. ........ 1. NO#IN&UNCTION POLICY An in# nction may re< ire or restrain the doing of an act. Article 2:4 anno nces the policy that la!or disp tes are generally not s !#ect to in# nction. Af the r le "ere other"ise, it "o ld contradict the declared policy, nder Article 211%a-, 8to promote and emphasize the primacy of free collective !argaining and negotiations, incl ding vol ntary ar!itration, mediation and conciliation, as modes of settling la!or or ind strial disp tes.9

........ Article 2::. 10cl sive !argaining representation and "or$ers participation in policy and decision-ma$ing. /he la!or organization designated or selected !y the ma#ority of the employees in an appropriate collective !argaining nit shall !e the e0cl sive representative of the employees in s ch nit for the p rpose of collective !argaining. ;o"ever, an individ al employee or gro p of employees shall have the right at any time to present grievances to their employer. Any provision of la" to the contrary not"ithstanding, "or$ers shall have the right, s !#ect to s ch r les and reg lations as the =ecretary of @a!or and 1mployment may prom lgate, to participate in policy and decision-ma$ing processes of the esta!lishment "here they are employed insofar as said processes "ill directly affect their rights, !enefits and "elfare. Ior this p rpose, "or$ers and employers may form la!or-management co ncilsD 'rovided, /hat the representatives

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of the "or$ers in s ch la!or-management co ncils shall !e elected !y at least the ma#ority of all employees in said esta!lishment. %As amended !y =ection 22, 5ep !lic Act Fo. 3(1:, *arch 21, 1+,+-. ........ 1. WOR*ERS( PARTICIPATORY CONSTITUTIONAL MEANING RIGHT" ITS their employer at any time. 1ffectively voicing ones grievance is reserved and hallo"ed !y la", "ith or "itho t collective !argaining. & t individ al representation in dealing or !argaining "ith the employer is "ea$. Ior this reason the la" provides another for m7 the la!or-management co ncil aside from or instead of a nion. An @*C is versatile. At can e0ist "here there is no nion or co-e0ist "ith a nion. 6ne thing it cannot and m st not do is to replace a nion. Ehile a la!or nion is hamstr ng !y s ch legal prescriptions as formal registration, limited !argaining nit, ma#ority stat s, mandatory and non-mandatory s !#ects, etc., an @*C need not !e held !ac$ !y any of these. At can represent employees across the enterprise, present grievances regardless of the grievants ran$, and proffer proposals nhindered !y formalities. At can also handle pro#ects and programs "hoever is the proponent, form committees for myriad p rposes, instill discipline and improve prod ctivity. /he @*C, in short, can deal "ith the employer on matters affecting the employees rights, !enefits and "elfare. 8Bealing "ith the employer,9 "e have seen, is !roader, freer, and %from the employers vie"point- less threatening method than collective !argaining. 2.1 Bepartments 'romotion of @*C and 6ther Co ncils
=ection 1. Creation of la!or-management and other co ncils. - /he Bepartment shall promote the formation of la!or-management co ncils in organized and norganized esta!lishments to ena!le the "or$ers to participate in policy and decision-ma$ing processes in the esta!lishment, insofar as said processes "ill directly affect their rights, !enefits and "elfare, e0cept those "hich are covered !y collective !argaining agreements or are traditional areas of !argaining.

/he cr cial < estion isD "hat is the meaning or e0tent of the "or$ers right to participate in policy and decision-ma$ingJ 1nlightening in this regard are the deli!erations of the 1+,3 Constit tional Commission. /hey reveal that the intention "as to refer to participation in grievance proced res and vol ntary modes of settling disp tes and not to form lation of corporate programs or policies. /here are three levels in "hich employees co ld infl ence management in their decision-ma$ing, and one "o ld !e at the corporate level. /his "o ld refer to strategic policies pertaining to the mergers, ac< isitions, pricing and mar$eting policies, disposition of profits and the li$e. /he second level "o ld !e the plant or department level. At is here "here administrative decisions are made. Becisions made in this level may refer to hiring, firing, and promotion of employees, cost and < ality control, reso rce allocations, achievement of target < otas, etc. And the third "ill !e the shop-floor level. At is here "here the so-called operating decisions are made. Becisions made in this level s ally refer to sched ling of "or$, safety reg lations, "or$ methods, training of ne" employees. =o these are the different levels in "hich "e hope there "o ld !e this democratic participation of "or$ers in vital iss es that affect !oth management and the "or$ers. 1.1 1mployees 'articipation in Iorm lating the Code of Biscipline
Andeed, it "as only on *arch 2, 1+,+, "ith the approval of 5ep !lic Act Fo. 3(1:, amending Article 211 of the @a!or Code, that the la" e0plicitly considered it a =tate policy ?%t-o ens re the participation of "or$ers in decision and policy-ma$ing processes affecting the rights, d ties and "elfare.? ;o"ever, even in the a!sence of said clear provision of la", the e0ercise of management prerogatives "as never considered !o ndless. Lerily, a line m st !e dra"n !et"een management prerogatives regarding ! siness operations per se and those "hich affect the rights of the employees. An treating the latter, management sho ld see to it that its employees are at least properly informed of its decisions or modes action.

3. INDIVIDUAL GRIEVANCE As !riefly indicated a!ove, the presence of an employees organization,--a nion, an @*C or other for m7does not replace the individ al employees right to p rs e grievances. 1ach employee retains the right to deal "ith his or her employer, and #ice%#ersa. /he la!or organization is a representative of the collective employees, ! t this fact does not mean that an employee can act only thro gh the representative. Ior these reasons, the la" %rt. 2::- e0plicitly preserves and respects the right of an individ al employee or any gro p of employees to directly present grievances to their employers at any time. 1ven "hen nder investigation, an employee can choose to handle personally his defense, nassisted !y any representative %Art. 2((N!O-. /he second sentence of Art. 2:: is meant to !e an e0ception to the e0cl siveness of the representative role of the la!or organization. = ch individ al right cannot !e ta$en a"ay even !y a nions constit tion and !y-la"s. American # rispr dence holds that not"ithstanding a nions o!ligation as e0cl sive !argaining representative to process the grievances of all !argaining nit employees, individ al employees may at any time present grievances directly to the employer for ad# stment "itho t the intervention of the !argaining representative, and "itho t s !#ecting the employer to lia!ility for ref sing to !argain "ith the nion. ;o"ever, the ad# stment of the grievances m st !e consistent "ith the terms of the c rrent collective !argaining contract or agreement. *oreover, the !argaining representative m st !e given the opport nity to !e present at the meeting !et"een the employer and employee. . COLLECTIVE BARGAINING UNIT ;CBU> DEFINED

2. WOR*ERS( PARTICIPATION AS THE REAL OB&ECTIVE' THE LMC Article 2:: deals "ith the cr cial concept of employee participation. /he la", "hile promoting collective !argaining, really aims at employee participation in policy and decision-ma$ing. Collective &argaining is # st one of the forms of employee participation. Bespite so m ch interest in and promotion of collective !argaining, it is incorrect to say that the device "hich sec res ind strial democracy is collective !argaining and no other. And it is e< ally misleading to say that collective !argaining is the end-goal of employee representation. 5ather, the real aim is employee participation in "hatever form it may appear7!argaining or no !argaining, nion or no nion. /his is "hy Art. 2::, second sentence, reserves the right of an individ al employee or gro p of employees % nionized or n nionized, or inside or o tside a nion- to present grievances to

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At the enterprise level there are three democratic devices, stat torily em!edded, to advance the ca se of ind strial peace, namelyD airing of grievance even !y an individ al employee directly to the employer anytime4 participation in policy and decision-ma$ing !y employees, "hether nionized or not4 and collective !argaining "ith the employer !y nionized employees. /he collective !argaining that the la" envisions occ rs !et"een the employer and the employees comprised in an 8appropriate9 collective !argaining nit %C&2- represented !y a nion. As initially e0plained in Art. 234, the 8C&29 is that gro p of #o!s and #o!holders represented !y the recognized or certified nion "hen it !argains "ith the employer. /he 8gro p9 may comprise all the s pervisors or, separately, all the ran$-and-file pop lation in the company. 6r it may !e less than all of these t"o categories, altho gh the la" prefers to have only one gro ping per category in one enterprise !eca se the more solid the nit, the stronger its !argaining capacity. & t if a single nit %only one for all s pervisors or only one for all ran$-and-file- is not feasi!le, the la" allo"s s !gro ps as !argaining nits, provided only that each s !-gro p is 8appropriate.9 At is appropriate if its mem!ers share s !stantially common concerns and interests. As defined in B.6. Fo. 4)-)3 "hich is no" the revised &oo$ L of the 5 les Amplementing the @a!or Code, 8!argaining nit9 refers to a gro p of employees sharing m t al interests "ithin a given employer nit, comprised of all or less than all of the entire !ody of employees in the employer nit or any specific occ pational or geographical gro ping "ithin s ch employer nit. Eithin one nit there may !e one or more nions. /he !argaining nit therefore is not the same as, and s ally a !igger gro p than, a nion. & t only one nion sho ld represent the "hole C&2 in !argaining "ith the employer. /he chosen nion is called the !argaining agent, its principal !eing the C&2 mem!ers themselves. /he !argaining nion has to !e the ma#ority nion, the one "here ma#ority of the C&2 mem!ers !elong. 85epresentative nion,9 8!argaining nion,9 8ma#ority nion,9 8!argaining agent,9 and 8!argaining representative9 are one and the same. At refers to the nion that represents the C&2 in !argaining or dealing "ith the employer. $. APPROPRIATENESS OF BARGAINING UNIT' FACTORS CONSIDERED
/he determination of "hat constit tes a proper !argaining nit lies primarily in the discretion of the & rea , since no individ al factor is given !y la" decisive "eight. & t "hile the determination of the appropriate collective !argaining nit %C&2- is a primary f nction of the & rea , it is s !#ect to the legal re< irement that proper consideration sho ld !e given to all legally relevant factors. /he !asic test of an asserted !argaining nit>s accepta!ility is "hether or not it is f ndamentally the com!ination "hich "ill !est ass re to all employees the e0ercise of their collective !argaining rights. And strial e0perience indicates that the most efficacio s !argaining nit is one "hich is comprised of constit ents en#oying a comm nity of interest. /his comm nity of interest is reflected in gro ps having s !stantial similarity of "or$ and d ties or similarity of compensation and "or$ing conditions.

scale and manner of determining earnings4 %2- similarity in employment !enefits, ho rs of "or$ and other terms and conditions of employment4 %3- similarity in the $inds of "or$ performed4 %4similarity in the < alifications, s$ills and training of the employees4 %:- fre< ency of contact or interchange among the employees4 %3geographic pro0imity4 %(- contin ity or integration of prod ction processes4 %,- common s pervision and determination of la!orrelations policy4 %+- history of collective !argaining4 %1)- desires of the affected employees4 or %11- e0tent of nion organization. Geographical location can !e completely disregarded if the comm nal or m t al interests of the employees are not sacrificed. :.1 &argaining ;istory Fot Becisive Iactor
/he !asic test of an asserted !argaining nit>s accepta!ility is "hether or not it is f ndamentally the com!ination "hich "ill !est ass re to all employees the e0ercise of their collective !argaining rights.

:.2 10cl sion of Confidential 1mployees


&y the very nat re of their f nctions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons "ho e0ercise managerial f nctions in the field of la!or relations. As s ch, the rationale !ehind the ineligi!ility of managerial employees to form, assist or #oin a la!or nion e< ally applies to them.

:.3 /emporary or 'art-/ime 1mployees /he F@5& has !een pheld in e0cl ding temporary employees from !argaining nits of "or$ers in certain #o!s. An determining "hether temporary or part-time employees are s fficiently identified "ith the reg lar employees, so as to !e properly incl ded in the !argaining nit, one of the important factors considered !y the F@5& is the reasona!le li$elihood that the temporary or part-time employees "ill event ally !ecome ade< ately identified in employment "ith the other mem!ers of the !argaining nit. :.4 =easonal 1mployees /he f ll-time seasonal employees "ho have a reasona!le e0pectation of s !stantial seasonal employment from year to year have !een held properly incl ded in the nit, ! t part-time seasonal employees "ho receive none of the fringe !enefits en#oyed !y f ll-time employees have ins fficient common interest "ith the f ll-time employees to !e incl ded in the same !argaining nit. :.: 'ro!ationary 1mployees /he fact that an employee is given a classification s ch as !eginner, trainee or pro!ationary employee, and the fact that contemplation of permanent ten re is s !#ect to satisfactory completion of an initial trial period, are ins fficient to "arrant s ch employees e0cl sion from a !argaining nit. *oreover, the eligi!ility of pro!ationary employees does not t rn on the proportion of s ch employees "ho, "illingly or not, fail to contin e to "or$ for the employer thro gho t the trial period. %. REFERENDUM WHERE INTERESTS ARE DISSIMILAR /he decision then of the 10ec tive @a!or Ar!iter in merely directing the holding of a referend m 8to determine the "ill of the service engineers, sales representatives as to their incl sion or e0cl sion in

An ma$ing # dgments a!o t 8comm nity of interest9 in these different settings, the &oard "ill loo$ to s ch factors asD %1- similarity in the

32
the !argaining nit9 is the most appropriate proced re that conforms "ith their right to form, assist or #oin a la!or nion or organization. 3.1 Besire of the 1mployees4 /he Glo!e Boctrine /he desires of the employees are relevant to the determination of the appropriate !argaining nit. /he relevancy of the "ishes of employees concerning their incl sion or e0cl sion from a proposed !argaining nit is inherent in the !asic right to self organization. Ehile the desires of the employees "ith respect to their incl sion in a !argaining nit is not controlling, it is a factor "hich "o ld !e ta$en into consideration in reaching a decision. +. SINGLE OR ?EMPLOYER UNIT@ IS FAVORED At has !een the policy of the & rea of @a!or 5elations to enco rage the formation of an employer nit nless circ mstances other"ise re< ire. An other "ords, one employer enterprise constit tes only one !argaining nit. /he more solid the employees are, the stronger is their !argaining capacity. /he proliferation of nions in an employer nit is disco raged as a matter of policy nless there are compelling reasons "hich "o ld deny a certain class of employees the right to self-organization for p rposes of collective !argaining. =ingle plant nits are pres med to !e appropriate for p rposes of collective !argaining.
Anstead of forming another !argaining nit, the la" re< ires them to !e mem!ers of the e0isting one. /he ends of nionism are !etter served if all the ran$-and-file employees "ith s !stantially the same interests and "ho invo$e their right to self-organization are part of a single nit so that they can deal "ith their employer "ith # st one and yet potent voice. /he employees> !argaining po"er "ith management is strengthened there!y. *oreover, in determining an appropriate !argaining nit, the test of gro ping is m t ality or commonality of interests. /he employees so ght to !e represented !y the collective !argaining agent m st have s !stantial m t al interests in terms of employment and "or$ing conditions as evinced !y the type of "or$ they performed. Considering the spin-offs, the companies "o ld conse< ently have their respective and distinctive concerns in terms of the nat re of "or$, "ages, ho rs of "or$ and other conditions of employment. Anterests of employees in the different companies perforce differ. =*C is engaged in the ! siness of the !eer man fact ring. *agnolia is involved in the man fact ring and processing of dairy prod cts "hile =*IA is involved in the prod ction of feeds and the processing of chic$en. /he nat re of their prod cts and scales of ! siness may re< ire different s$ills "hich m st necessarily !e commens rated !y different compensation pac$ages. /he different companies may have different vol mes of "or$ and different "or$ing conditions. Ior s ch reason, the employees of the different companies see the need to gro p themselves together and organize themselves into distinctive and different gro ps. At "o ld then !e !est to have separate !argaining nits for the different companies "here the employees can !argain separately according to their needs and according to their o"n "or$ing conditions.

= !sidiaries or corporations formed o t of former divisions of a mother company follo"ing a bona fide reorganization may constit te separate !argaining nits.

:. SUMMATION OF SIGNIFICANCE At is helpf l to reiterate that the !argaining nit is not the same as the nion4 in fact, there may !e several nions %ma#ority and minority- in one !argaining nit. Betermining the scope or 8mem!ership9 of the !argaining nit is significant and far-reaching !eca se it leads to the determination also ofD %1- the employees "ho can vote in the certification election4 %2- the employees to !e represented in !argaining "ith the employer4 and %3- the employees "ho "ill !e covered !y the res lting C&A. Bisting ishing the C&2 from the nion is important !eca se7 1. in a C1 the voters are the C&2, "hether mem!ers4 2. in C&A ratification the voters are the mem!ers4 nion or non- nion nion

(.1 10ception to 6ne- nit 'olicy /he 8one nit-one company9 r le is not "itho t e0ception. /he e0cl sion of the s !#ect employees from the ran$-and-file !argaining nit and the C&A is definitely a 8compelling reason,9 for it completely deprived them of the chance to !argain collectively "ith petitioner and are th s left "ith no reco rse ! t to gro p themselves into a separate and distinct !argaining nit and form their o"n organization.
/he s al e0ception, of co rse, is "here the employer nit has to give "ay to the other nits li$e the craft nit, plant nit, or a s !division thereof4 the recognition of these e0ceptions ta$es into acco nt the policy to ass re employees of the f llest freedom in e0ercising their rights. 6ther"ise stated, the one company-one nion policy m st yield to the right of the employees to form nions or associations for p rposes not contrary to la", to selforganization and to enter into collective !argaining negotiations, among others, "hich the Constit tion g arantees.

nit, not # st the

3. in stri$e voting, the voters are the mem!ers of the nion, not all of the nit. ........ Article 2:3. 5epresentation Ass e in 6rganized 1sta!lishments. - An organized esta!lishments, "hen a verified petition < estioning the ma#ority stat s of the inc m!ent !argaining agent is filed !y any legitimate la!or organization incl ding a national nion or federation "hich has already iss ed a charter certificate to its local chapter participating in the certification election or a local chapter "hich has !een iss ed a charter certificate !y the national nion or federation !efore the Bepartment of @a!or and 1mployment "ithin the si0ty %3)--day period !efore the e0piration of the collective !argaining agreement, the *ed-Ar!iter shall a tomatically order an election !y secret !allot "hen the verified petition is s pported !y the "ritten consent of at least t"enty-five percent %2:S- of all the employees in the !argaining nit to ascertain the "ill of the employees in the appropriate !argaining nit. /o have a valid election, at least a ma#ority of all eligi!le voters in the nit m st have cast their votes. /he la!or nion receiving the ma#ority of the valid votes cast shall !e certified as the e0cl sive !argaining agent of all the "or$ers in the

,. TWO COMPANIES WITH RELATED BUSINESSES /"o corporations cannot !e treated as a single !argaining nit even if their ! sinesses are related. ,.1 = !sidiaries and =p n-6ff Corporations

33
nit. Ehen an election "hich provides for three or more choices res lts in no choice receiving a ma#ority of the valid votes cast, a r noff election shall !e cond cted !et"een the la!or nions receiving the t"o highest n m!er of votesD 'rovided, /hat the total n m!er of votes for all contending nions is at least fifty percent %:)S- of the n m!er of votes cast. An cases "here the petition "as filed !y a national nion or federation, it shall not !e re< ired to disclose the names of the local chapters officers and mem!ers. At the e0piration of the freedom period, the employer shall contin e to recognize the ma#ority stat s of the inc m!ent !argaining agent "here no petition for certification election is filed. %As amended !y =ection 23, 5ep !lic Act Fo. 3(1:, *arch 21, 1+,+ and =ection 1), 5ep !lic Act Fo. +4,1 "hich lapsed into la" on *ay 2:, 2))( and !ecame effective on K ne 14, 2))(-. ........ Article 2:(. 'etitions in 2norganized 1sta!lishments. - An any esta!lishment "here there is no certified !argaining agent, a certification election shall a tomatically !e cond cted !y the *edAr!iter pon the filing of a petition !y any legitimate la!or organization, incl ding a national nion or federation "hich has already iss ed a charter certificate to its localCchapter participating in the certification election or a localCchapter "hich has !een iss ed a charter certificate !y the national nion or federation. An cases "here the petition "as filed !y a national nion or federation, it shall not !e re< ired to disclose the names of the local chapters officers and mem!ers. %As amended !y =ection 24, 5ep !lic Act Fo. 3(1:, *arch 21, 1+,+ and =ection 11, 5ep !lic Act Fo. +4,1 "hich lapsed into la" on *ay 2:, 2))( and !ecame effective on K ne 14, 2))(-. ........ Article 2:,. Ehen an employer may file petition. Ehen re< ested to !argain collectively, an employer may petition the & rea for an election. Af there is no e0isting certified collective !argaining agreement in the nit, the & rea shall, after hearing, order a certification election. All certification cases shall !e decided "ithin t"enty %2)- "or$ing days. /he & rea shall cond ct a certification election "ithin t"enty %2)days in accordance "ith the r les and reg lations prescri!ed !y the =ecretary of @a!or. ........ Article 2:,-A. 1mployer as &ystander. - An all cases, "hether the petition for certification election is filed !y an employer or a legitimate la!or organization, the employer shall not !e considered a party thereto "ith a concomitant right to oppose a petition for certification election. /he employers participation in s ch proceedings shall !e limited toD %1- !eing notified or informed of petitions of s ch nat re4 and %2- s !mitting the list of employees d ring the pre-election conference sho ld the *ed-Ar!iter act favora!ly on the petition. %As amended !y =ection 12, 5ep !lic Act Fo. +4,1 "hich lapsed into la" on *ay 2:, 2))( and !ecame effective on K ne 14, 2))(-. ........ Article 2:+. Appeal from certification election orders. Any party to an election may appeal the order or res lts of the election as determined !y the *ed-Ar!iter directly to the =ecretary of @a!or and 1mployment on the gro nd that the r les and reg lations or parts thereof esta!lished !y the =ecretary of @a!or and 1mployment for the cond ct of the election have !een violated. = ch appeal shall !e decided "ithin fifteen %1:- calendar days. %As amended !y =ection 2:, 5ep !lic Act Fo. 3(1:, *arch 21, 1+,+-. ........ 1. DETERMINING THE BARGAINING UNION" OVERVIEW OF THE METHODS /o !argain "ith the employer, the employees in the collective !argaining nit %C&2- can !e represented !y one and only one nion "hich has to !e a legitimate la!or organization d ly designated or selected !y the employees in the C&2. 2nder the Code a 8!argaining representative9 is defined as a 8legitimate la!or organization or any officer or agent of s ch organization "hether or not employed !y the employer.9 /he Amplementing 5 les, ho"ever, as amended !y B.6. Fo. 4)-)3 drops the 8officer or agent9 as it statesD 810cl sive !argaining representative means any legitimate la!or nion d ly recognized or certified as the sole and e0cl sive !argaining representative or agent of all the employees in a !argaining nit.9 /he selection of s ch !argaining agent may ta$e place in an organized or an norganized esta!lishment. 86rganized esta!lishment9 refers to an enterprise "here there e0ists a recognized or certified sole and e0cl sive !argaining agent. /he employer company is 8 norganized9 "here no nion has yet !een d ly recognized or certified as !argaining representative. Art. 2:3 spea$s of an organized firm4 Art. 2:(, of the norganized. Ehether the proceedings ta$e place in an organized or an norganized !argaining nit, and "hether the proceedings are called consent election or certification election, the o!#ective is the same, namely, to identify the nion that "ill represent the employees in !argaining "ith the employer. 2ntil this representation disp te is resolved, no C&A can !e entered into. An an norganized esta!lishment, the employer may vol ntarily recognize the !argaining agent. Af there are o!stacles to this, the petition to hold an election may !e filed anytime !y any legitimate la!or organization %@@6-, e0cept "ithin 12 months from a previo s C1, r n-off, or consent election. An an organized esta!lishment, on the other hand, vol ntary recognition is not possi!le. A petition to hold a C1 has to !e filed "ithin the 8freedom period9 "hich means the last si0ty %3)- days of the fifth year of the e0piring C&A4 in other "ords, the contest !et"een nions comes at intervals of ro ghly fo r years and ten months. /he petition may !e filed !y any @@6, ! t the petition m st have the "ritten s pport of at least t"enty-five percent %2:S- of the employees in the !argaining nit. /he 2:S initial s pport indicates that the petitioner has a fair chance of "inning and that the petition is not # st a n isance. Conceiva!ly ! t rarely an employer may also file a petition for a C1. /he election is cond cted nder the s pervision and control of B6@1 officials. At ends p "ith a formal and official statement of res lts, certifying "hich nion "on, if any. ;ence, the election is appropriately called 8certification election.9

34
Ehere one casting of votes is not decisive eno gh to elect a nion, the election officials may re< ire a r n-off election if certain other conditions e0ist, as e0plained !elo". & t a certification election, a r n-off election, or a consent election is needed only "hen t"o or more nions are vying for the 8office9 of e0cl sive !argaining representative %1&5-. Ehere there is ! t one nion in the !argaining nit and there is ample proof that that nion carries the ma#ority of the employees, the la" allo"s the employer to vol ntarily recognize s ch nion. Lol ntary recognition does a"ay "ith the more tedio s electoral contest !et"een nions. /here are, therefore, three methods to determine the !argaining nionD %1- vol ntary recognition4 %2- certification election "ith or "itho t r n-off4 and %3- consent election. 2. FIRST METHOD" VOLUNTARY RECOGNITION ;V.R.> /he employers vol ntary recognition of the employees nion significantly facilitates the !argaining process. /he employees, especially the nion leaders and organizers, re#oice "hen they are a!le to convince the employer to vol ntarily recognize and s !se< ently !argain "ith their nion. & t L5 re< ires three conc rrent conditions. ,irst, vol ntary recognition is possi!le only in an norganized esta!lishment. An an organized setting the employer cannot vol ntarily recognized any ne" nion !eca se the la" %Art. 2:3- re< ires him to contin e recognizing and dealing "ith the inc m!ent nion as long as it has not !een properly replaced !y another nion. Second, only one nion is as$ing for recognition4 if there are t"o or more nions as$ing to !e recognized the employer cannot recognize any of them4 the rivalry m st !e resolved thro gh an election4 )hird, the nion vol ntarily recognized sho ld !e the ma#ority nion as indicated !y the fact that mem!ers of the !argaining nit did not o!#ect to the pro#ected recognition. Af no o!#ection is raised, the recognition "ill proceed, the B6@1 "ill !e informed and C&A negotiation "ill commence. Af o!#ection is raised, the recognition is !arred, and a certification election or consent election "ill have to ta$e place. 2.1 L5 2nder B.6. Fo. 4)-)3
=ection 1. Ehen and "here to file. - An norganized esta!lishments "ith only one legitimate la!or organization, the employer may vol ntarily recognize the representation stat s of s ch a nion. Eithin thirty %3)- days from s ch recognition, the employer and nion shall s !mit a notice of vol ntary recognition "ith the 5egional 6ffice "hich iss ed the recognized la!or nion>s certificate of registration or certificate of creation of a chartered local. =ection 2. 5e< irements for vol ntary recognition. - /he notice of vol ntary recognition shall !e accompanied !y the original copy and t"o %2- d plicate copies of the follo"ing doc mentsD %a- a #oint statement nder oath of vol ntary recognition attesting to the fact of vol ntary recognition4 %!- certificate of posting of the #oint statement of vol ntary recognition for fifteen %1:- consec tive days in at least t"o %2- conspic o s places in the esta!lishment or !argaining nit "here the nion see$s to operate4 %c- the appro0imate n m!er of employees in the !argaining nit, accompanied !y the names of those "ho s pport the vol ntary recognition comprising at least a ma#ority of the mem!ers of the !argaining nit4 and %d- a statement that the la!or nion is the only legitimate la!or organization operating "ithin the !argaining nit. All accompanying doc ments of the notice for vol ntary recognition shall !e certified nder oath !y the employer representative and president of the recognized la!or nion. =ection 3. Action on the Fotice. - Ehere the notice of vol ntary recognition is s fficient in form, n m!er and s !stance and "here there is no other registered la!or nion operating "ithin the !argaining nit concerned, the 5egional 6ffice, thro gh the @a!or 5elations Bivision shall, "ithin ten %1)days from receipt of the notice, record the fact of vol ntary recognition in its roster of legitimate la!or nions and notify the la!or nion concerned. Ehere the notice of vol ntary recognition is ins fficient in form, n m!er and s !stance, the 5egional 6ffice shall, "ithin the same period, notify the la!or nion of its findings and advise it to comply "ith the necessary re< irements. Ehere neither the employer nor the la!or nion failed to complete the re< irements for vol ntary recognition nder =ection 2 of this 5 le "ithin thirty %3)- days from receipt of the advisory, the 5egional 6ffice shall ret rn the notice for vol ntary recognition together "ith all its accompanying doc ments "itho t pre# dice to its re-s !mission. =ection 4. 1ffect of recording of fact of vol ntary recognition. - Irom the time of recording of vol ntary recognition, the recognized la!or nion shall en#oy the rights, privileges and o!ligations of an e0isting !argaining agent of all the employees in the !argaining nit. 1ntry of vol ntary recognition shall !ar the filing of a petition for certification election !y any la!or organization for a period of one %1- year from the date of entry of vol ntary recognition. 2pon e0piration of this one-year period, any legitimate la!or organization may file a petition for certification election in the same !argaining nit represented !y the vol ntarily recognized nion, nless a collective !argaining agreement !et"een the employer and vol ntarily recognized la!or nion "as e0ec ted and registered "ith the 5egional 6ffice in accordance "ith 5 le HLAA of these 5 les.

=imply said, the last paragraph means that the employer and the nion sho ld concl de and register a C&A "ithin one year from the vol ntary recognition, other"ise, the recognition "ill lapse and a rival nion may petition for a certification election. 3. SECOND METHOD" CERTIFICATION ELECTION ;C.E.>
Ehenever there is do !t as to "hether a partic lar nion represents the ma#ority of the ran$-and-file employees, in the a!sence of a legal impediment, the holding of a certification election is the most democratic method of determining the employees> choice of their !argaining representative. At is the appropriate means "here!y controversies and disp tes on representation may !e laid to rest, !y the ne< ivocal vote of the employees themselves. 10ercising their s ffrage thro gh the medi m of the secret !allot, they can select the e0cl sive !argaining representative that, em!oldened !y their confidence and strengthened !y their s pport shall fight for their rights at the conference ta!le. /hat is ho" nion solidarity is achieved and nion po"er is increased in the free society. ;ence, rather than !eing inhi!ited and delayed, the certification election sho ld !e given every enco ragement nder the la", that the "ill of the "or$ers may !e discovered and, thro gh their freely chosen representatives, p rs ed and realized.

3.1 Iact-Iinding An la!or legislation, certification proceedings is not a litigation in the sense in "hich the term is ordinarily nderstood, ! t an investigation

3:
of non-adversary and fact finding character. As s ch, it is not !o nd !y technical r les of evidence. /he la" does not contemplate the holding of a certification election nless the preliminary in< iry sho"s a reasona!le do !t as to "hich of the contending nions represents a ma#ority, or nless ten per cent m of the la!orers demand this election. & t these gro nds necessarily depend on the "eight of the evidence add ced !y the rival nions, and this "eight, in t rn, cannot !e determined properly if the right to cross e0amination is denied. Certification proceedings directly involve only t"o iss esD %a- proper composition and constit ency of the !argaining nit4 and %!- veracity of ma#ority mem!ership claims of the competing nions so as to identify the one nion that "ill serve as the !argaining representative of the entire !argaining nit. & t some of the employees may not "ant to have a nion4 hence, 8Fo 2nion9 is one of the choices %8candidates9- named in the !allot. Af 8Fo 2nion9 "ins, the company pr the !argaining nit remains n nionized for at least 12 months, the period $no"n as the 12-month !ar. After that period, a petition for a C1 may !e filed again. 3.1a Certification 1lection Bifferentiated from 2nion 1lection
A nion election is held p rs ant to the nion>s constit tion and !yla"s, and the right to vote in it is en#oyed only !y nion mem!ers. A nion election sho ld !e disting ished from a certification election, "hich is the process of determining, thro gh secret !allot, the sole and e0cl sive !argaining agent of the employees in the appropriate !argaining nit, for p rposes of collective !argaining. =pecifically, the p rpose of a certification election is to ascertain "hether or not a ma#ority of the employees "ish to !e represented !y a la!or organization and, in the affirmative case, !y "hich partic lar la!or organization. An a certification election, all employees !elonging to the appropriate !argaining nit can vote. /herefore, a nion mem!er "ho li$e"ise !elongs to the appropriate !argaining nit is entitled to vote in said election. ;o"ever, the reverse is not al"ays tr e4 an employee !elonging to the appropriate !argaining nit ! t "ho is not a mem!er of the nion cannot vote in the nion election, nless other"ise a thorized !y the constit tion and !yla"s of the nion. Lerily, nion affairs and elections cannot !e decided in a non- nion activity.

3.3 Eho Iiles 'etition for C1 Any legitimate la!or organization or any employer, "hen re< ested to !argain collectively "hile the ma#ority stat s of the nion is in do !t, may file a petition for certification election %'C1An an norganized esta!lishment one a petition is filed !y a legitimate la!or organization, the *ed-ar!iter shall a tomatically order the cond ct of a certification election. /he tenor of Article 2:( is one of command, so s ch order is not appeala!le. /o ma$e it appeala!le "ill contradict the o!#ective stated in Article 211, to promote free trade nionism. & t the application of Article 2:( has to !e initiated !y a gen ine petition from a legitimate la!or organization. Andeed, the la" did not red ce the *ed-Ar!iter to an a tomaton "hich can instantly !e set to imp lse !y the mere filing of a petition for certification election. ;e is still tas$ed to satisfy himself that all the conditions of the la" are met, and among the legal re< irements is that the petitioning nion m st !e a legitimate la!or organization in good standing. An an organized esta!lishment the inc m!ent !argaining agent, of co rse, "ill not file a 'C1 !eca se it "ill not contest its o"n inc m!ency. /he filer "ill most li$ely !e a nion that "as defeated in the C1 held some five years !efore. An any s ch petition the inc m!ent nion is a necessary party, a forced intervenor. & t even so, it does not there!y lose its representative stat s4 it remains the sole !argaining representative ntil it is replaced !y another. And ntil so replaced it has the right to retain the recognition !y the employer. /he employer, says Article 2:,, may file a 'C1 "hen it has !een as$ed to !argain. Af this happens, the holding of the C1 !ecomes mandatory if there is no e0isting registered collective !argaining agreement. ;o"ever, instead of itself filing a petition, the employer s ally lets the nions interplead to determine "ho among them "ill !argain "ith the employer. 6ther nions "hich are interested in #oining a certification election may file a motion for intervention. = ch motion is governed !y the same r les that apply to a 'C1. Ehether petitioner or intervenor, the nion has to !e an @@6.
Af the petition for certification election "as filed !y the federation "hich is merely an agent, the petition is deemed to !e filed !y the chapter, the principal, "hich m st !e a legitimate la!or organization. /he chapter cannot merely rely on the legitimate stat s of the mother nion. Ehere the constit tion, !y-la"s and the list of mem!ers "ho s pposedly ratified the same "ere not attested to !y the nion president, and the constit tion and !y-la"s "ere not verified nder oath, the local nion has no personality to file a petition for certification election it not !eing a legitimate la!or organization. /he petition sho ld !e dismissed. A nion that has no legal personality to file a petition for C1 has no personality either to file a petition-in-intervention.

/he "inners in a nion election !ecome officers and representatives of the nion only. /he "inner in a certification election is an entity, a nion, "hich !ecomes the representative of the "hole !argaining nit that incl des even the mem!ers of the defeated nions. 3.2 Birect Certification Fo @onger Allo"ed 1ven in a case "here a nion has filed a petition for certification election, the mere fact that there "as no opposition does not "arrant a direct certification.
/he holding of a certification election at the proper time is not necessarily a mere formality as there "as a compelling legal reason not to directly and nilaterally certify a nion "hose legitimacy is precisely the o!#ect of litigation in a pending cancellation case filed !y certain ?concerned salesmen,? "ho also claim ma#ority stat s. /he direct certification originally allo"ed nder Article 2:( of the @a!or Code has apparently !een discontin ed as a method of selecting the e0cl sive !argaining agent of the "or$ers. /his amendment affirms the s periority of the certification election over the direct certification "hich is no longer availa!le no" nder the change in said provision.

3.4 Ehere to Iile the 'etition for C1 A petition for certification election %'C1- shall !e filed "ith the 5egional 6ffice "hich iss ed the petitioning nions certificate of registration or certificate of creation of chartered local. /he petition shall !e heard and resolved !y the *ed-Ar!iter.

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Ehere t"o or more petitions involving the same !argaining nit are filed in one 5egional 6ffice, the same shall !e a tomatically consolidated "ith the *ed-Ar!iter "ho first ac< ired # risdiction. Ehere the petitions are filed in different 5egional 6ffices, the 5egional 6ffice in "hich the petitions are first filed shall e0cl de all others4 in "hich case, the latter shall indorse the petition to the former for consolidation. 3.: Ehen to Iile the 'etition /he proper time to file a petition for C1 depends on "hether the C&2 has a C&A or not. Af it has no C&A , the petition may !e filed anytime o tside the 12-month !ar. Af it has a C&A, it can !e filed only "ithin the last 3) days of the fifth year of the C&A. 3.3 Action on the 'etitionD 'reliminary Conference %3- NeC2ti.ti24 B.0 20 De.7l26G B.0 /he preliminary conference shall determine the follo"ingD %4- N2 2$J SH//20t %a- the !argaining nit to !e represented4 %:- C24t0.6t B.0' PCE File7 OHt5i7e t-e F0ee721 Pe0i27 %!- contending la!or nions4 %c- possi!ility of a consent election4 %d- e0istence of any of the !ars to certification election nder =ection3 of B.6. Fo. 4)-)34 %e- s ch other matters as may !e relevant for the final disposition of the case. Af at the preliminary conference the nions agree to hold a consent election, then the 'C1 "ill no longer !e heard and the nions "ill instead prepare for the consent election. Af the nions fail to agree to hold a consent election, the *ed-ar!iter proceeds to consider the petition. ;e may deny and dismiss, or he may grant, the petition. Benial or grant of the petition is al"ays appeala!le to the =ecretary. Fever appeala!le, ho"ever, is the approval of a 'C1 in an norganized % n nionized- !argaining nit, the reason !eing that the la" "ants the n nionized nionized. 3.( Action on the 'etitionD ;earings and 'leadings Af the contending nions fail to agree to a consent election d ring the preliminary conference, the *ed-ar!iter may cond ct as many hearings as he may deem necessary. & t the cond ct of the hearings cannot e0ceed fifteen %1:- days from the date of the sched led preliminary conferenceC hearing. After that time the petition shall !e considered s !mitted for decision. /he *ed-ar!iter shall have control of the proceedings. 'ostponements or contin ances are disco raged. /he fail re of any party to appear in the hearing%s- "hen notified or to file its pleadings shall !e deemed a "aiver of its right to !e heard. /he *ed-ar!iter, ho"ever, pon the agreement of the parties for meritorio s reasons, may allo" the cancellation of sched led hearing%s-. /he cancellation of any sched led hearing%s- shall not !e sed as a !asis for e0tending the 1:-day period "ithin "hich to terminate the same. Eithin ten %1)- days from the date of the last hearing, the *ed-ar!iter shall iss e a formal order denying or granting the petition. An /he first three gro nds are applica!le to esta!lishments "ith or "itho t a C&A4 the last t"o are pertinent only to an esta!lishment "ith a C&A a!o t to e0pire on its fifth year. 3.,a Gro nd 1D 'etitioner not an @@6 10cepting Article 2:,, only a legitimate la!or organization %@@6- can file a petition for certification election. /h s, if the petitioning nion is not listed in the B6@1s list of @@6s or it has no C&A registered in the B6@1, these facts raise do !t as to its !eing an @@6, and the med-ar!iter may dismiss the 'C1. & t even if the nion is listed as @@6 or is a party to a C&A, its legitimacy may still !e < estioned in a separate and independent petition for cancellation to !e heard and decided !y the &@5 Birector or the 5egional Birector himself. Boes the filing of a petition to cancel the petitioners registration ca se the s spension or dismissal of the 'C1J Fo, the mere filing foes not. /o serve as a gro nd for dismissal of a 'C1, the legal personality of the petitioner sho ld have !een revo$ed or cancelled 8"ith finality.9
/he filing or pendency of any interCintra- nion disp te and other related la!or relations disp te is 42t . /0eEH7i6i.l KHe5ti24 to any petition for certification election and shall not !e a gro nd for the dismissal of a petition for certification election or s spension of proceedings for certification election.

organized esta!lishments, ho"ever, no order or decision shall !e iss ed !y the *ed-ar!iter d ring the freedom period. /he reason for the last-mentioned r le is that d ring the entire 3)-day freedom period, p to its last day, the door sho ld remain open for any nion to file a 'C1 or a motion for intervention. 3., Action on the 'etitionD Benial4 Gro nds /he *ed-ar!iter, after d e hearing may dismiss the petition on any of the follo"ing gro ndsD %1- N2t .4 LLO %2- TFelIe#124t- B.0

/he # stification for this r le is that the employees opport nity to choose a !argaining agent can easily !e !loc$ed or forestalled !y an employer thro gh the simple e0pedience of < estioning the legitimacy of the petitioner nion. Suspension of Proceedings8 * ompany Union+ harge
A complaint for nfair la!or practice may !e considered a pre# dicial < estion in a proceeding for certification election "hen it is charged therein that one or more la!or nions participating in the election are !eing aided, or are controlled, !y the company or employer. /he reason is that the certification election may lead to the selection of an employer-dominated or company nion as the employees !argaining representative, and "hen the co rt finds that said nion is employer-dominated in the nfair la!or practice case, the

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nion selected "o ld !e decertified and the "hole election proceedings "o ld !e rendered seless and n gatory.

concl ded "ith it a C&A. As the 12-month !ar violatedJ Are the recognition and the C&A validJ
10cepted from the contract-!ar r le are certain types of contracts "hich do not foster ind strial sta!ility, s ch as contracts "here the identity of the representative is in do !t. Any sta!ility derived from s ch contracts m st !e s !ordinated to the employees> freedom of choice !eca se it does not esta!lish the $ind of ind strial peace contemplated !y the la".

F6F1/;1@1==, a certification election cannot !e stayed d ring the pendency of nfair la!or practice charge against a nion filed !y the employer. =imilarly, certification election may !e ordered despite pendency of a petition to cancel the nions registration certificate fo nded on alleged illegal stri$e !y the nion. 3.,! Gro nd 2D /he 12-month &ar %certification year !arFo petition for a C1 may !e filed "ithin one year from the date of a valid certification, consent, or r n-off election or from the date of entry of a vol ntary recognition of the nion !y the employer. /h s, if an election had !een held ! t not one of the nions "on a 'C1 may !e filed again ! t only after 12 months. /he la" does not "ant more than one election in a 12-month period. /he same !ar applies if 8Fo 2nion9 "on in the previo s election. 6n the other hand, if a nion has "on, s ch nion and the employer m st "ithin 12 months start negotiating a collective agreement. Af they fail to do so, they are defeating the employees "ish to have a C&A4 hence, the nion or nions that lost can petition again for a certification election after 12 months from the last election so as to replace the nprod ctive !argaining agent "hich, perhaps, is cavorting "ith the employer.
6rdinarily, a !argaining agent "ho failed to sec re a C&A "ithin 12 months co ld !e s spected as a tool of management and sho ld deserve to !e replaced. & t if circ mstances sho" that the ca se of not having concl ded a C&A "as not the nions fa lt, s ch nion sho ld not !e !lamed, and a C1 sho ld not !e a thorized even tho gh no C&A has !een concl ded despite passage of t"elve months. /he sit ation ta$es the nat re of a 8deadloc$ !ar.9 /he 12-month prohi!ition pres pposes that there "as an act al cond ct of election i.e. !allots "ere cast and there "as a co nting of votes. An this case, there "as no certification election cond cted precisely !eca se the first petition "as dismissed, on the gro nd of a defective petition "hich did not incl de all the employees "ho sho ld !e properly incl ded in the collective !argaining nit, the certification year !ar does not apply.

An other "ords, the co rt strongly do !ted that the nion vol ntarily recognized !y the employer "as really the employees choice. *ost pro!a!ly, it "as a company nion. 3.,c Gro nd 3D Fegotiation or Beadloc$ &ar Feither "ill a 'C1 prosper if the negotiation is ca ght in a deadloc$. /he deadloc$ does not erase that fact that there is negotiation "hich is a !arrier to holding a certification election. /he parties sho ld !e allo"ed to try to resolve their deadloc$4 replacing the negotiating nion "ill not help. /he 8Beadloc$ &ar9 5 le simply provides that a petition for certification election can only !e entertained if there is no pending !argaining deadloc$ s !mitted to conciliation or ar!itration or had !ecome the s !#ect of a valid notice of stri$e or loc$o t. /he principal p rpose is to ens re sta!ility in the relationship of the "or$ers and the management.
A ?deadloc$? is the co nteraction of things prod cing entire stoppage4 there is a deadloc$ "hen there is a complete !loc$ing or stoppage res lting from the action of e< al and opposed forces. /he "ord is synonymo s "ith the "ord impasse, "hich ?pres pposes reasona!le effort at good faith !argaining "hich, despite no!le intentions, does not concl de in agreement !et"een the parties.? Af the la" proscri!es the cond ct of a certification election "hen there is a !argaining deadloc$ s !mitted to conciliation or ar!itration, "ith more reason sho ld it not !e cond cted if, despite attempts to !ring an employer to the negotiation ta!le !y the ?no reasona!le effort in good faith? on the employer certified !argaining agent, there "as to !argain collectively. At is only # st and e< ita!le that the circ mstances in this case sho ld !e considered as similar in nat re to a ?!argaining deadloc$? "hen no certification election co ld !e held.

Feither does this !ar apply if in fact there "as a failure of election !eca se less than ma#ority of the C&2 mem!ers voted. An that case, another 'C1 may !e filed "ithin si0 %3- months. An election held less than a year after an invalid election is not !arred. Also not !arred "o ld !e a second election held among a gro p of employees "ho had not participated in the first election and had not !een given the opport nity to !e represented as part of the nit in the first election. A radical change in the size of a !argaining nit "ithin a short period of time, raising a < estion as to the ma#ority stat s of the certified representative, may also prompt the F@5& to entertain a petition for an election d ring the certification year. /he one-year r le does not apply to a nit clarification petition filed d ring the certification year. An a C1, the 8Fo 2nion9 choice "on. Eithin 12 months from that election the employer vol ntarily recognized a ne" nion and then

*&eadloc( Bar+ Rule9 :hen 7ot 'pplicable; 'rtificial &eadloc( /he deadloc$ that !ars a C1 m st !e gen ine and not a drama. 6ne indicator that it is gen ine is the s !mission of the deadloc$ to a thirdparty conciliator or ar!itrator. Another is that the deadloc$ is the s !#ect of a valid notice of stri$e or loc$o t. An artificial deadloc$7a deadloc$ prearranged or preserved !y coll sion of the employer and the ma#ority nion7is deception of the "or$ers, hence, not a !arrier to a petition for a C1. 3.,d Gro nd 4D 2: 'ercent = pport to 'C1 Article 2:3 re< ires that the petition for a C1 in an organized esta!lishment "hich may !e filed "ithin the 8freedom period9 sho ld !e s pported !y at least t"enty-five percent %2:S- of the !argaining nit. /he s pport re< irement is e0plained !y government policy to favor the self-organization of "or$ers. An a company still norganized the "or$ers sho ld find it easy to organize, ! t one a nion has esta!lished itself as the employees representative, it sho ld not !e so

3,
easy for another nion to replace the inc m!ent. /rying to so "ill dist r! the peace in the enterprise. /o # stify the dist r!ance, it m st appear that a sizea!le portion of the employees7at least 2:S7 desires to have a ne" nion. Eitho t this minim m s pport the challenge to the inc m!ent loo$s li$e a n isance. )he BU9 7ot the !nterprise Af a companys ran$-and-file employees are nionized ! t the s pervisors are not, does the s pervisors petition need the 2:S minim m s pportJ F6, !eca se the company is considered norganized. /he petition for C1 involves only the s pervisors, not the ran$-and-file. Ansofar as the s pervisors are concerned, the 8esta!lishment9 is considered n nionized. ;ence the re< irement for 2:S s pport to the petition does not apply. An other "ords, in deciding "hether the 2:S re< irement is applica!le or not, the la" considers the C&2 involved, not the "hole enterprise. /his, again, ma$es it easy for "or$ers to nionize, a !asic o!#ective of la!or relations la". !lection &espite Lac( of 01 Percent Support 1ven in the sit ation "here the 2:S is needed. /his re< irement may !e rela0ed.
Compliance "ith the said re< irement need not even !e esta!lished "ith a!sol te certainty. /he Co rt has consistently r led that ?even conceding that the stat tory re< irement of 3)S of the la!or force as$ing for a certification election had not !een strictly complied "ith, respondent Birector is still empo"ered to order that it !e held precisely for the p rpose of ascertaining "hich of the, contending la!or organizations shall !e the e0cl sive collective !argaining agent.? /herefore, it "o ld not !e ne0pected that the opposite party "o ld se fo l means for the s !#ect employees to "ithdra"al their s pport.

3.,e Gro nd :D 'C1 Iiled 6 tside the Ireedom 'eriod4 the Contract &ar /his means that there e0ists in the !argaining nit a C&A still in effect at the time the 'C1 is filed. /he !an spans a period of five years, e0cl ding, ho"ever, the last si0ty %3)- days of the fifth %last- year of the C&A.
/he contract !ar r le prohi!its the filing of a petition for certification election d ring the e0istence of a collective !argaining agreement e0cept "ithin the freedom period, as it is called, "hen the said agreement is a!o t to e0pire. /he p rpose, o!vio sly, is to ens re sta!ility in the relationships of the "or$ers and the management !y preventing fre< ent modifications of any collective !argaining agreement earlier entered into !y them in good faith and for the stip lated original period.

/he 8freedom period9 nder Articles 2:3-A and 2:3 is different from and o ght not to !e mista$en for the other si0ty-day period mentioned in Art. 2:3. /he latter spea$s of the right of the parties to propose modifications to the e0isting C&A, as an e0ception to the r le that the C&A cannot !e modified d ring its lifetime. /o clarify terms, the si0ty days in Art. 2:3 may !e called 8renegotiation notice period9 or simply 8noticeCproposal period,9 in contrast to the 8freedom period9 nder Arts. 2:3-A and 2:3. /he notice period is the last 3) days of the second or third year of the nonrepresentational provisions4 the freedom period is the last 3) days of the C&As fifth year of the representational aspect. /he notice period is an economic event involving the employer and the !argaining nion4 the freedom period is a political event involving only the nions and the employees. /he t"o periods, of co rse, may coincide on the fifth year of the C&A. Registered B' /o !ar a certification election it is no longer necessary that the C&A !e 8certified94 it is eno gh that it is registered in accordance "ith Art. 231. ontract%Bar Rule 'pplied8 !.tended B' Under &eadloc( Fo petition for certification election may !e filed before the onset of the freedom period not after s ch period. /he old C&A is e0tended ntil a ne" one is signed.
=ection 3, 5 le L, &oo$ L of the implementing 5 les provides that a petition for certification election or a motion for intervention can only !e entertained "ithin si0ty days prior to the e0piry date of an e0isting collective !argaining agreement. 6ther"ise p t, the r le prohi!its the filing of a petition for certification election d ring the e0istence of a collective !argaining agreement e0cept "ithin the freedom period, as it is called, "hen the said agreement is a!o t to e0pire. Article 2:3 of the @a!or Code provides thatD ?it shall !e the d ty of !oth parties to $eep the stat s < o and to contin e in f ll force and effect the terms and conditions of the e0isting agreement d ring the 3)-day period andCor ntil a ne" agreement is reached !y the parties.? Bespite the lapse of the formal effectivity of the C&A the la" still considers the same as contin ing in force and effect ntil a ne" C&A shall have !een validly e0ec ted. ;ence, the contract !ar r le still applies.

!ffect of :ithdra4al of Signatories Af a petition for a certification election lac$s the 2:S s pport !eca se a sizea!le n m!er of nion mem!ers has "ithdra"n their mem!ership, may the petition still !e grantedJ 6r m st it !e dismissedJ A critical fact to consider is "hether the "ithdra"al happened !efore or after the filing of the petition. Af it happened Ae920e the filing, the "ithdra"al is /0e5H1e7 I2lH4t.03 and it does not affect the propriety of the petition4 if .9te0, the "ithdra"al is 7ee1e7 i4I2lH4t.03 %perhaps press red !y the employer- and it does not necessarily ca se the dismissal of the petition
/he pres mption "o ld arise that the "ithdra"al "as proc red thro gh d ress, coercion or for val a!le consideration. An other "ords, the distinction m st !e that "ithdra"als made !efore the filing of the petition are pres med vol ntary nless there is convincing proof to the contrary, "hereas "ithdra"als made after the filing of the petition are deemed invol ntary. /he reason for s ch distinction is that if the "ithdra"al or retraction is made !efore the filing of the petition, the names of employees s pporting the petition are s pposed to !e held secret to the opposite party. @ogically, any s ch "ithdra"al or retraction sho"s vol ntariness in the a!sence of proof to the contrary. *oreover, it !ecomes apparent that s ch employees had not given consent to the filing of the petition, hence the s !scription re< irement has not !een met. Ehen the "ithdra"al or retraction is made after the petition is filed, the employees "ho are s pporting the petition !ecome $no"n to the opposite party since their names are attached to the petition at the time of filing.

3+
ontract%Bar Rule 'pplied8 Unpro#ed Surreptitious Registration of B' 1ven if the e0isting C&A is registered s rreptitio sly, as alleged !y the petitioner nion, ! t no evidence is presented proving the alleged s rreptitio s registration, the petition for C1 cannot !e granted. /he contract-!ar r le applies. Ehether or not the C&A "as indeed s rreptitio sly registered is a fact al matter "hose determination is o tside the am!it of a petition for certiorari. ontract%Bar Rule 7ot 'pplied8 <a= &efecti#e B'
/o !e a !ar to a certification election, the C&A m st !e ade< ate in that it comprises s !stantial terms and conditions of employment.

& t in a 2)): decision the Co rt too$ one step f rther. At invalidated the hasty recognition of a nion and the signing of a C&A "ith that nion "here s ch acts "ere done "hile there "as a pending petition for certification election !y another nion.
&asic to the contract !ar r le is the proposition that the delay of the right to select representatives can !e # stified only "here sta!ility is deemed paramo nt. 10cepted from the contract !ar r le are certain types of contracts "hich do not foster ind strial sta!ility, s ch as contracts "here the Adentity of the representative is in do !t. Any sta!ility derived from s ch contracts m st !e s !ordinated to the employees> freedom of choice !eca se it does not esta!lish the type of ind strial peace contemplated !y the la". A C&A a tomatically rene"ed s ally operates as a !ar to a certification election. & t it is not a !ar if the employer has served notice that it "ill terminate the contract if and "hen the nion no longer represents the ma#ority of the employees.

<b= Referendum to Register on Independent Union


/his referend m is neither nion disaffiliation nor severance4 it is not disallo"ed !y la" even "hile a C&A e0ists.

3.+ Anvalid Gro nds for the BenialC= spension of the 'etition R estions pertaining to the validity of petitioning nions certificate of registration, or its legal personality as a la!or organization, or the validity of registration and e0ec tion of collective !argaining agreements shall !e heard and resolved !y the 5egional Birector in an independent petition for cancellation of the nions registration. /hey are not reasons for the *ed-ar!iter to s spend hearing the 'C1. ;o"ever, the *ed-ar!iter himself may r le on the o!#ection if the pending nion is not fo nd in the Bepartments roster of legitimate la!or organizations or an alleged collective !argaining agreement is nregistered "ith the Bepartment. 3.+a A thority to Becide 10istence of 1mployer-1mployee 5elationship4 *ed-Ar!iters 6rder Appeala!le to =ecretary Boes the *ed-ar!iter or the =ecretary of @a!or and 1mployment have the a thority to determine the e0istence of an employer-employee relationship !et"een the parties in a petition for certification electionJ All iss es pertaining to the e0istence of employer-employee relationship or to eligi!ility to nion mem!ership shall !e resolved in the order or decision ranting or denying the petition for certification election. An other "ords, those iss es do not stall the 'C1 and they are not gro nds for dismissing a 'C1.
At is a!s rd to s ggest that the med-ar!iter and =ecretary of @a!or cannot ma$e their o"n independent finding as to the sentence of s ch relationship and m st have to rely and "ait for s ch a determination !y the la!or ar!iter or F@5C in a separate proceeding. Ior then, given a sit ation "here there is no separate complaint filed "ith the la!or ar!iter, the med-ar!iter andCor the =ecretary of @a!or can never decide a certification election case or any la!ormanagement disp te properly !ro ght !efore them as they have no a thority to determine the e0istence of an employer-employee relationship. = ch a proposition is, to say the least, anomalo s. 6nce there is a determination as to the e0istence of s ch a relationship, the med-ar!iter can then decide the certification election case. + As the a thority to determine the employer-employee relationship is necessary and indispensa!le in the e0ercise of # risdiction !y the med-ar!iter, his finding thereon may only !e revie"ed and reversed !y the =ecretary of @a!or "ho e0ercises appellate # risdiction nder Article 2:+ of the @a!or Code, as amended.

<c= B' Signed Before or :ithin ,reedom Period &espite In6uncti#e Order
A collective !argaining agreement "hich "as premat rely rene"ed is not a !ar to the holding of a certification election. = ch indecent haste in rene"ing the C&A despite an order en#oining them from doing so is designed to fr strate the constit tional right of the employees to self-organization. *oreover, Ee cannot co ntenance the act ation of the petitioner and the management in this case "hich is not cond cive to ind strial peace.

"alidity of B' Signed &uring Representation &ispute


At is tr e that the contract-!ar r le does not apply d ring the 8freedom period94 i$e$9 "ithin that period a petition for C1 may !e entertained. & t it is e< ally tr e that the petition for C1 does not !ar the employer and the inc m!ent nion from renegotiating and rene"ing the e0piring C&A. An other "ords, a C&A may !e renegotiated !efore, d ring, or after the 3)-day freedom period. & t if d ring s ch period a 'C1 is filed, the -ed%arbiter can order the suspension of the renegotiation ntil the representation proceedings finally end.

/he la" is attempting a !alancing feat. &y allo"ing a 'C1 d ring the freedom period the la" preserves democratic !et"een nions, and, in the same !readth, !y allo"ing C&A renegotiation d ring the same freedom period, the la" safeg ards the opport nity to possi!ly pgrade the employees employment condition. /he < estion may !e as$edD Ehat "o ld !e the effect on the renegotiated C&A if a nion other than the one that e0ec ted it sho ld "in the C1J An a pertinent case, it "as held that the nion th s certified "o ld have to respect the contract, ! t that it may !argain "ith the management to shorten the life of the contract if it is too long.
Ehen a collective !argaining agreement is entered into at a time "hen the petition for certification election had already !een filed !y a nion and "as then pending resol tion, the said C&A cannot !e deemed permanent, precl ding the commencement of negotiations !y another nion "ith the management. An the meantime ho"ever, so as not to deprive the "or$ers of the !enefits of the said agreement, it shall !e recognized and given effect on a temporary !asis, s !#ect to the res lts of the certification election. /he agreement may !e contin ed in force if the nion is certified as the e0cl sive !argaining representative of the "or$ers or may !e re#ected and replaced in the event that the rival emerges as the "inner.

At is apparent that incidental to the po"er of the med-ar!iter to hear and decide representation cases is the po"er to determine "ho the eligi!le voters are. An so doing, it is a0iomatic that the med-ar!iter

4)
sho ld determine the legality of the employees> mem!ership in the nion. 3.1) Action on the 'etitionD As the 1mployer a &ystanderJ See Art. 2:,-A 3.1)a 1mployer a &ystander4 Cannot 6ppose 'C1 3.11 Action on the 'etitionD Approval
=ection 13. 6rderCBecision on the petition. - Eithin ten %1)- days from the date of the last hearing, the *ed-Ar!iter shall iss e a formal order granting the petition or a decision denying the same. An organized esta!lishments, ho"ever, no order or decision shall !e iss ed !y the *ed-Ar!iter d ring the freedom period. /he order granting the cond ct of a certification election shall state the follo"ingD %a- the name of the employer or esta!lishment4 %!- the description of the !argaining nit4 %c- a statement that none of the gro nds for dismissal en merated in the s cceeding paragraph e0ists4 %d- the names of contending la!or nions "hich shall appear as follo"sD petitioner nionCs in the order in "hich their petitions "ere filed, forced intervenor, and no nion4 and %e- a directive pon the employer and the contending nion%s- to s !mit "ithin ten %1)- days from receipt of the order, the certified list of employees in the !argaining nit, or "here necessary, the payrolls covering the mem!ers of the !argaining nit for the last three %3- months prior to the iss ance of the order =ection 2). 'eriod to 5eply. - A reply to the appeal may !e filed !y any party to the petition "ithin ten %1)- days from receipt of the memorand m of appeal. /he reply shall !e filed directly "ith the 6ffice of the =ecretary. =ection 21. Becision of the =ecretary. - /he =ecretary shall have fifteen %1:days from receipt of the entire records of the petition "ithin "hich to decide the appeal. /he filing of the memorand m of appeal from the order or decision of the *ed-Ar!iter stays the holding of any certification election. /he decision of the =ecretary shall !ecome final and e0ec tory after ten %1)days from receipt thereof !y the parties. Fo motion for reconsideration of the decision shall !e entertained. =ection 22. /ransmittal of records to the 5egional 6ffice. - Eithin forty-eight %4,- ho rs from notice of receipt of decision !y the parties and finality of the decision, the entire records of the case shall !e remanded to the 5egional 6ffice of origin for implementation. Amplementation of the decision shall not !e stayed nless restrained !y the appropriate co rt.

*ay a certification election !e held legally pon petition of 2nion & "hile a petition for C1 !y 2nion A is pending on appeal at the 6ffice of the =ecretaryJ Fo, the appeal sho ld first !e resolved. 3.13 Cond cting the C1 3.13a 're-election Conference
=ection 1. 5affle of the case. - Eithin t"enty-fo r %24- ho rs from receipt of the notice of entry of final # dgment granting the cond ct of a certification election, the 5egional Birector shall ca se the raffle of the case to an 1lection 6fficer "ho shall have control of the pre-election conference and election proceedings. =ection 2. 're-election conference. - Eithin t"enty-fo r %24- ho rs from receipt of the assignment for the cond ct of a certification election, the 1lection 6fficer shall ca se the iss ance of notice of preelection conference pon the contending nions and the employer, "hich shall !e sched led "ithin ten %1)- days from receipt of the assignment. /he pre-election conference shall set the mechanics for the election and shall determine, among others, the follo"ingD %a- date, time and place of the election, "hich shall not !e later than forty-five %4:- days from the date of the first pre-election conference, and shall !e on a reg lar "or$ing day and "ithin the employer>s premises, nless circ mstances re< ire other"ise4 %!- list of eligi!le and challenged voters4 %c- n m!er and location of polling places or !ooths and the n m!er of !allots to !e prepared "ith appropriate translations, if necessary4 %d- name of "atchers or representatives and their alternates for each of the parties d ring election4 %e- mechanics and g idelines of the election. =ection 3. Eaiver of right to !e heard. - Iail re of any party to appear d ring the pre-election conference despite notice shall !e considered as a "aiver to !e present and to < estion or o!#ect to any of the agreements reached in said pre-election conference. Fothing herein, ho"ever, shall deprive the nonappearing party or the employer of its right to !e f rnished notices of s !se< ent pre-election conferences and to attend the same. =ection 4. *in tes of pre-election conference. - /he 1lection 6fficer shall $eep the min tes of matters raised and agreed pon d ring the pre-election conference. /he parties shall ac$no"ledge the completeness and correctness of the entries in the min tes !y affi0ing their signat res thereon. Ehere any of the parties ref se to sign the min tes, the 1lection 6fficer shall note s ch fact

3.12 Appeal of 6rder Granting or Benying 'etition


=ection 1(. Appeal. - /he order granting the cond ct of a certification election in an norganized esta!lishment shall not !e s !#ect to appeal. Any iss e arising therefrom may !e raised !y means of protest on the cond ct and res lts of the certification election. /he order granting the cond ct of a certification election in an organized esta!lishment and the decision dismissing or denying the petition, "hether in an organized or norganized esta!lishment, may !e appealed to the 6ffice of the =ecretary "ithin ten %1)- days from receipt thereof. /he appeal shall !e verified nder oath and shall consist of a memorand m of appeal, specifically stating the gro nds relied pon !y the appellant "ith the s pporting arg ments and evidence.

An short, denial of any petition for C1 is al"ays appeala!le, ! t never appeala!le is the approval of any 'C1 in an enterprise still n nionized. /he reason is so nd and simpleD the la" "ants to nionized the n nionized.
=ection 1,. Ehere to file appeal. - /he memorand m of appeal shall !e filed in the 5egional 6ffice "here the petition originated, copy f rnished the contending nions and the employer, as the case may !e. Eithin t"enty-fo r %24- ho rs from receipt of the appeal, the 5egional Birector shall ca se the transmittal thereof together "ith the entire records of the case to the 6ffice of the =ecretary. =ection 1+. Iinality of 6rderCBecision. - Ehere no appeal is filed "ithin the ten-day period, the *ed-Ar!iter shall enter the finality of the orderCdecision in the records of the case and ca se the transmittal of the records of the petition to the 5egional Birector.

41
in the min tes, incl ding the reason for ref sal to sign the same. An all cases, the parties shall !e f rnished a copy of the min tes. /he pre-election conference shall !e completed "ithin thirty %3)- days from the date of the first hearing. =ection 3. 'osting of Fotices. - /he 1lection 6fficer shall ca se the posting of notice of election at least ten %1)- days !efore the act al date of the election in t"o %2- most conspic o s places in the company premises. /he notice shall containD %a- the date and time of the election4 %!- names of all contending nions4 %c- the description of the !argaining nit and the list of eligi!le and challenged voters. /he posting of the notice of election, the information re< ired to !e incl ded therein and the d ration of posting cannot !e "aived !y the contending nions or the employer.

election shall !e considered a < alified voter, nless hisCher dismissal "as declared final # dgment at the time of the cond ct of the certification election.
An 'hilippine # rispr dence it is no" settled that employees "ho have !een improperly laid off ! t "ho have a present, na!andoned right to or e0pectation of re-employment, are eligi!le to vote in certification elections. 1) /h s, and to repeat, if the dismissal is nder < estion, as in the case no" at !ar "here!y a case of illegal dismissal andCor nfair la!or practice "as filed, the employees concerned co ld still < alify to vote in the elections.

Probationary !mployee
An a certification election all ran$-and-file employees in the appropriate !argaining nit are entitled to vote. /his principle is clearly stated in Art. 2:: of the @a!or Code "hich states that the ?la!or organization designated or selected !y the ma#ority of the employees in an appropriate !argaining nit shall !e the e0cl sive representative of the employees in s ch nit for the p rpose of collective !argaining.? Collective !argaining covers all aspects of the employment relation and the res ltant C&A negotiated !y the certified nion !inds all employees in the !argaining nit. ;ence, all ran$-and-file employees, pro!ationary or permanent, have a s !stantial interest in the selection of the !argaining representative. /he Code ma$es no distinction as to their employment stat s as !asis for eligi!ility in s pporting the petition for certification election. /he la" refers to ?all? the employees in the !argaining nit. All they need to !e eligi!le to s pport the petition is to !elong to the ?!argaining nit.?.

3.13! Cond cting the C1D /he Loters 6ne of the matters the pre-election conference threshes o t is the list of voters.
=ection :. R alification of voters4 incl sion-e0cl sion. - All employees "ho are mem!ers of the appropriate !argaining nit so ght to !e represented !y the petitioner at the time of the iss ance of the order granting the cond ct of a certification election shall !e eligi!le to vote.

I73 Belie#ers -ay "ote An the C1 all mem!ers of the nit, "hether nion mem!ers or not, have the right to vote. 2nion mem!ership is not a prere< isite. Af ma#ority of the nit mem!ers do not "ant a nion, as e0pressed in the C1, s ch ma#ority decision m st !e respected.
@ogically, the right F6/ to #oin, affiliate "ith, or assist any nion, and to disaffiliate or resign from a la!or organization, is s !s med in the right to #oin, affiliate "ith, or assist any nion, and to maintain mem!ership therein. /he right to form or #oin a la!or organization necessarily incl des the right to ref se or refrain from e0ercising said right. At is self-evident that # st as no one sho ld !e denied the e0ercise of a right granted !y la", so also, no one sho ld !e compelled to e0ercise s ch a conferred right. /he fact that a person has opted to ac< ire mem!ership in a la!or nion does not precl de his s !se< ently opting to reno nce s ch mem!ership. /he p rpose of a certification election is precisely the ascertainment of the "ishes of the ma#ority of the employees in the appropriate !argaining nitD to !e or not to !e represented !y a la!or organization, and in the affirmative case, !y "hich partic lar la!or organization. Af the res lts of the election sho ld disclose that the ma#ority of the "or$ers do not "ish to !e represented !y any nion, then their "ishes m st !e respected, and no nion may properly !e certified as the e0cl sive representative of the "or$ers in the !argaining nit in dealing "ith the employer regarding "ages, ho rs and other terms and conditions of employment. /he minority employees 7 "ho "ish to have a nion represent them in collective !argaining 7 can do nothing ! t "ait for another s ita!le occasion to petition for a certification election and hope that the res lts "ill !e different. /hey may not and sho ld not !e permitted, ho"ever, to impose their "ill on the ma#ority 7 "ho do not desire to have a nion certified as the e0cl sive "or$ers> !enefit in the !argaining nit 7 pon the plea that they, the minority "or$ers, are !eing denied the right of self-organization and collective !argaining. /he respondents> arg ment that the petitioners are dis< alified to vote !eca se they ?are not constit ted into a d ly organized la!or nion? 7 ?! t mem!ers of the AFM "hich prohi!its its follo"ers, on religio s gro nds, from #oining or forming any la!or organization? 7 and ?hence, not one of the nions "hich vied for certification as sole and e0cl sive !argaining representative,? is

/he list of voters sho ld !e !ased on the employer-certified list of employees in the C&2 or payrolls. Af the employer does not s !mit the list or payrolls, the nion may s !mit its o"n list. 1ven the list of employees s !mitted to the === may !e sed as !asis to comprise the list of voters for the C1. 8At sho ld ideally !e the payroll "hich sho ld have !een sed for the p rpose of the election. ;o"ever, the n# stified ref sal of a company to s !mit the payroll in its c stody, despite efforts to ma$e it prod ce it, compelled resort to the === list as the ne0t !est so rce of information. After all, the === list is a p !lic record "hose reg larity is pres med.9 6nly the employees "ho are directly employed !y the employer and "or$ing along the activities to "hich the employer is engaged and lin$ed !y employer-employee relationship are < alified to participate in the certification election, 8irrespective of the period of their employment.9 1mployees of an independent contractor "ho nderta$es to do a piece of "or$ for his acco nt and responsi!ility, "ith minim m interference on the part of the other contracting party %indirect employer-, not !eing la!orers or employees of the latter, are not < alified to participate therein.
An case of disagreement over the voters> list or over the eligi!ility of voters, all contested voters shall !e allo"ed to vote. & t their votes shall !e segregated and sealed in individ al envelopes in accordance "ith =ections 1) and 11 of this 5 le.

&ismissed !mployee An employee "ho has !een dismissed from "or$ ! t has contested the legality of the dismissal in a for m of appropriate # risdiction at the time of the iss ance of the order for the cond ct of a certification

42
specio s. Feither la", administrative r le nor # rispr dence re< ires that only employees affiliated "ith any la!or organization may ta$e part in a certification election. 6n the contrary, the plainly discerni!le intendment of the la" is to grant the right to vote to all !ona fide employees in the !argaining nit, "hether they are mem!ers of a la!or organization or not. =ection 1:. Cond ct of election and canvass of votes. - /he election precincts shall open and close on the date and time agreed pon d ring the pre-election conference. /he opening and canvass shall proceed immediately after the precincts have closed. Iail re of any party or the employer or hisCherCtheir representative to appear d ring the election proceedings shall !e considered a "aiver to !e present and to < estion the cond ct thereof.

3.13c Cond cting the C1D /he Loting


=ection (. =ecrecy and sanctity of the !allot. - /o ens re secrecy of the !allot, the 1lection 6fficer, together "ith the a thorized representatives of the contending nions and the employer, shall !efore the start of the act al voting, inspect the polling place, the !allot !o0es and the polling !ooths. =ection ,. 'reparation of !allots. - /he 1lection 6fficer shall prepare the !allots in 1nglish and Iilipino or the local dialect, corresponding to the n m!er of voters and a reasona!le n m!er of e0tra !allots. All !allots shall !e signed at the !ac$ !y the 1lection 6fficer and a thorized representative of each of the contending nions and employer. Iail re or ref sal to sign the !allots shall !e considered a "aiver thereof and the 1lection 6fficer shall enter the fact of s ch ref sal or fail re in the records of the case as "ell as the reason for the ref sal or fail re to sign. =ection +. *ar$ing of votes. - /he voter m st p t a cross % - or chec$ % mar$ in the s< are opposite the name of the nion of his choice or ?Fo 2nion? if heCshe does not "ant to !e represented !y any nion. Af a !allot is torn, defaced or left nfilled in s ch a manner as to create do !t or conf sion or to identify the voter, it shall !e considered spoiled. Af the voter inadvertently spoils a !allot, heCshe shall ret rn it to the 1lection 6fficer "ho shall destroy it and give himCher another !allot. =ection 1). Challenging of votes. - An a thorized representative of any of the contending nions and employer may challenge a vote !efore it is deposited in the !allot !o0 only on any of the follo"ing gro ndsD %a- that there is no employer-employee relationship !et"een the voter and the company4 %!- that the voter is not a mem!er of the appropriate !argaining nit "hich petitioner see$s to represent. =ection 11. 'roced re in the challenge of votes. - Ehen a vote is properly challenged, the 1lection 6fficer shall place the !allot in an envelope "hich shall !e sealed in the presence of the voter and the representatives of the contending nions and employer. /he 1lection 6fficer shall indicate on the envelope the voter>s name, the nion or employer challenging the voter, and the gro nd for the challenge. /he sealed envelope shall then !e signed !y the 1lection 6fficer and the representatives of the contending nions and employer. /he 1lection 6fficer shall note all challenges in the min tes of the election and shall !e responsi!le for consolidating all envelopes containing the challenged votes. /he envelopes shall !e opened and the < estion of eligi!ility shall !e passed pon only if the n m!er of segregated voters "ill materially alter the res lts of the election. =ection 12. 6n-the-spot < estions. - /he 1lection 6fficer shall r le on any < estion relating to and raised d ring the cond ct of the election. An no case, ho"ever, shall the election officer r le on any of the gro nds for challenge specified in the immediately preceding section. =ection 13. 'rotest4 "hen perfected. - Any party-in-interest may file a protest !ased on the cond ct or mechanics of the election. = ch protests shall !e recorded in the min tes of the election proceedings. 'rotests not so raised are deemed "aived. /he protesting party m st formalize its protest "ith the *ed-Ar!iter, "ith specific gro nds, arg ments and evidence, "ithin five %:- days after the close of the election proceedings. Af not recorded in the min tes and formalized "ithin the prescri!ed period, the protest shall !e deemed dropped.

ULP in Relation to !lection


/he employer deserves o r strongest condemnation for ignoring the petitioners> re< est for permission for some time o t to attend to the hearing of their petition !efore the med-ar!iter. At is not only an act of arrogance, ! t a !razen interference as "ell "ith the employees right to self-organization, contrary to the prohi!ition of the @a!or Code against nfair la!or practices. At is nfair la!or practice for the company to s spended the "or$ers on the gro nd of ?a!andonment of "or$? on the day on "hich the pre-election conference had !een sched led. At is the employees right to hold a certification election, the e0ercise of "hich is their sole prerogative. A company commits nfair la!or practice "here it iss ed s spension and termination orders "hile the employees are in the midst of a certification election preliminary to a la!or management conference ?to normalize employer-employee relations.?

3.13d Cond cting the C1D Canvassing of Lotes /he voting shall close on the date and time agreed pon in the preelection conference. Canvassing shall immediately follo".
=ection 14. Canvassing of votes. - /he votes shall !e co nted and ta! lated !y the 1lection 6fficer in the presence of the representatives of the contending nions. 2pon completion of the canvass, the 1lection 6fficer shall give each representative a copy of the min tes of the election proceedings and res lts of the election. /he !allots and the tally sheets shall !e sealed in an envelope and signed !y the 1lection 6fficer and the representatives of the contending nions and transmitted to the *ed-Ar!iter, together "ith the min tes and res lts of the election, "ithin t"enty-fo r %24- ho rs from the completion of the canvass. Ehere the election is cond cted in more than one region, consolidation of res lts shall !e made "ithin fifteen %1:- days from the cond ct thereof.

3.13e Eho Eins in C1D 'roclamation and Certification


=ection 2). 'roclamation and certification of the res lt of the election. Eithin t"enty-fo r %24- ho rs from final canvass of votes, there !eing a valid election, the 1lection 6fficer shall transmit the records of the case to the *edAr!iter "ho shall, "ithin the same period from receipt of the min tes and res lts of election, iss e an order proclaiming the res lts of the election and certifying the nion "hich o!tained a ma#ority of the valid votes cast as the sole and e0cl sive !argaining agent in the s !#ect !argaining nit, nder any of the follo"ing conditionsD %a- no protest "as filed or, even if one "as filed, the same "as not perfected "ithin the five-day period for perfection of the protest4 %!- no challenge or eligi!ility iss e "as raised or, even if one "as raised, the resol tion of the same "ill not materially change the res lts of the elections. /he "inning nion shall have the rights, privileges and o!ligations of a d ly certified collective !argaining agent from the time the certification is iss ed. Ehere ma#ority of the valid votes cast res lts in ?Fo 2nion? o!taining the ma#ority, the *ed-Ar!iter shall declare s ch fact in the order. =ection 13. Certification of Collective &argaining Agent. - /he nion "hich o!tained a ma#ority of the valid votes cast shall !e certified as the sole and

43
e0cl sive !argaining agent of all the employees in the appropriate !argaining nit "ithin five %:- days from the day of the election, provided no protest is recorded in the min tes of the election. /he manner in "hich the election "as held co ld ma$e the difference !et"een ind strial strife and ind strial harmony in the company. Ehat an employer is prohi!ited from doing is to interfere "ith the cond ct of the certification election for the p rpose of infl encing its o tcome. & t certainly an employer has an a!iding interest in seeing to it that the election is clean, peacef l, orderly and credi!le.

3,13f Iail re of 1lectionD *otion for a 5emedial 1lection


=ection 1(. Iail re of election. - Ehere the n m!er of votes cast in a certification or consent election is less than the ma#ority of the n m!er of eligi!le voters and there are no material challenged votes, the 1lection 6fficer shall declare a fail re of election in the min tes of the election proceedings. =ection 1,. 1ffect of fail re of election. - A fail re of election shall not !ar the filing of a motion for the immediate holding of another certification or consent election "ithin si0 %3- months from date of declaration of fail re of election. =ection 1+. Action on the motion. - Eithin t"enty-fo r %24- ho rs from receipt of the motion, the 1lection 6fficer shall immediately sched le the cond ct of another certification or consent election "ithin fifteen %1:- days from receipt of the motion and ca se the posting of the notice of certification election at least ten %1)- days prior to the sched led date of election in t"o %2most conspic o s places in the esta!lishment. /he same g idelines and list of voters shall !e sed in the election.

. THIRD METHOD" CONSENT ELECTION @i$e a C1, its p rpose is the same, namely, to find o t "hich nion sho ld serve as the !argaining agent. /he difference is that a certification is ordered !y the Bepartment "hile a consent election is vol ntarily agreed pon !y the parties, "ith or "itho t the intervention of the Bepartment. /"o or more nions are involved in a consent election. And li$e certification election, consent election may ta$e place in an norganized or organized esta!lishment. 4.1 1ffect of Consent 1lection
=ection 23. 1ffects of consent election. - Ehere a petition for certification election had !een filed, and pon the intercession of the *ed-Ar!iter, the parties agree to hold a consent election, the res lts thereof shall constit te a !ar to the holding of a certification election for one %1- year from the holding of s ch consent election. Ehere an appeal has !een filed from the res lts of the consent election, the r nning of the one-year period shall !e s spended ntil the decision on appeal has !ecome final and e0ec tory. Ehere no petition for certification election "as filed ! t the parties themselves agreed to hold a consent election "ith the intercession of the 5egional 6ffice, the res lts thereof shall constit te a !ar to another petition for certification election.

3.13g 5 n-off 1lection


=ection 1. Ehen proper. - Ehen an election "hich provides for three %3- or more choices res lts in none of the contending nions receiving a ma#ority of the valid votes cast, and there are no o!#ections or challenges "hich if s stained can materially alter the res lts, the 1lection 6fficer shall motu propio cond ct a r n-off election "ithin ten %1)- days from the close of the election proceedings !et"een the la!or nions receiving the t"o highest n m!er of votes4 provided, that the total n m!er of votes for all contending nions is at least fifty %:)S- percent of the n m!er of votes cast. ?Fo 2nion? shall not !e a choice in the r n-off election. Fotice of r n-off elections shall !e posted !y the 1lection 6fficer at least five %:- days !efore the act al date of r n-off election. =ection 2. R alification of voters. - /he same voters> list sed in the certification election shall !e sed in the r n-off election. /he !allots in the r n-off election shall provide as choices the nions receiving the highest and second highest n m!er of the votes cast. /he la!or nion receiving the greater n m!er of valid votes cast shall !e certified as the "inner, s !#ect to =ection 2), 5 le AH.

$. THE WINNER REPRESENTATIVE

AS

SOLE

AND

E!CLUSIVE

/o s mmarize, a r n-off election is proper if five conc rrent conditions e0ist, namelyD 1. a valid election too$ place !eca se ma#ority of the C&2 mem!ers voted. 2. the election presented a least three choices, e$g$, 2nion 6ne, 2nion /"o, and Fo 2nion, meaning there are at least t"o nion 8candidates.9 3. not one of the nions o!tained the ma#ority ofthe valid votes. 4. the total n m!er of votes for all the nions is at least :)S of the valid votes cast. :. there is no nresolved challenge of voter or election protest. 3.14 Appeal to =ecretary as to 1lection 5es lt7 See B.6. Fo. 4)-1-)3 %dated 3) Fovem!er 2)):3.1: 1lection Arreg larities, 'rotest !y 1mployer

Collective !argaining contemplates the representation of the collective !argaining interests of all the employees in the partic lar !argaining nit !y a properly selected !argaining agent. /he selection of a !argaining agent !y a ma#ority of s ch employees, nder e0press provisions of the Act, constit tes the agent as the representative of all the employees "ithin the partic lar !argaining nit. /he Act provides that s ch !argaining agent shall !e the 8e0cl sive9 representative of the employees. /he term 8e0cl sive9 "as interpreted nder the original Act to mean that the employer m st treat "ith the representative to the e0cl sion of all other claiming !argaining agents. :.1 10cl sive &argaining Agent 5epresents 1ven the *inority 2nion
6n the part of the nion that "on in the certification election, it !ecomes, and is certified as, the e0cl sive !argaining agent of all the "or$ers in the !argaining nit. At represents even the mem!ers of the minority nion. ;o"ever, altho gh the nion has every right to represent its mem!ers in the negotiation regarding the terms and conditions of their employment, it cannot negate their "ishes on matters "hich are p rely personal and individ al to them.

:.2 'rotection and Capacity of the @oser4 the B ty of Iair 5epresentation Ehat if the ma#ority nion neglects the interest of the employees in the minority nionJ /he ma#ority nion in s ch case "ill !e violating

44
its d ty of fair representation. /his d ty o!ligates the ma#ority nion to serve the interest of all mem!ers of the "hole !argaining nit "itho t hostility or discrimination. Ehat can the minority doJ /he minority nion, altho gh a loser in the election, does not lose its character as a la"f l la!or organization entitled to protection nder Article 243 "hich ma$es it nla"f l for any person to a!ridge the right to self-organization. % see also Article 2::*ay a minority nion charge the employer "ith 2@'J Qes. At can file an individ al or gro p complaint for 2@'. At can even engage in peacef l concerted activity. & t it cannot resort to "or$ stoppage or stri$e !eca se stri$e is reserved, nder Article 233, to an e0cl sive !argaining representative %i$e$, the ma#ority nion-, if there is one. :.3 As the &argaining 2nion a *a#ority 2nionJ /he minority nions entitlement to protection gains greater force and respect if it is remem!ered that the !argaining nion does not al"ays comprise the n merical ma#ority in the !argaining nit. Article 2:3 re< ires, for a nion to "in a C1, only a ma#ority of the #alid #otes cast. /he ma#ority of the valid votes may !e lesser that the ma#ority of the employees in the !argaining nit. Article 2:3 therefore does not s pport Article 2::4 in fact, they are incongr ent. Ehereas Article 2:: re< ires selection !y ma#ority of the nit mem!ers, Article 2:3 re< ires only ma#ority of the valid votes cast. /he res lt may !e a !argaining agent that does not carry the mandate of the ma#ority of the employees. :.4 *ay the &argaining Agent 5epresent 5etired 1mployeesJ 2. C.B.A.) LAW BETWEEN THE PARTIES An p rs ing their claim for retirement !enefits nder the C&A, the claimant retirees are represented !y the nion of "hich they "ere former mem!ers. ........ Title VII#A GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION Article. 23). Grievance machinery and vol ntary ar!itration. - /he parties to a Collective &argaining Agreement shall incl de therein provisions that "ill ens re the m t al o!servance of its terms and conditions. /hey shall esta!lish a machinery for the ad# stment and resol tion of grievances arising from the interpretation or implementation of their Collective &argaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances s !mitted to the grievance machinery "hich are not settled "ithin seven %(- calendar days from the date of its s !mission shall a tomatically !e referred to vol ntary ar!itration prescri!ed in the Collective &argaining Agreement. Ior this p rpose, parties to a Collective &argaining Agreement shall name and designate in advance a Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators, or incl de in the agreement a proced re for the selection of s ch Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators, prefera!ly from the listing of < alified Lol ntary Ar!itrators d ly accredited !y the &oard. An case the parties fail to
/he provisions of the collective !argaining agreement m st !e respected since its terms and conditions ?constit te the la" !et"een the parties.? /hose "ho are entitled to its !enefits can invo$e its provisions. An the event that an o!ligation therein imposed is not f lfilled, the aggrieved party has the right to go to co rt for redress.

select a Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators, the &oard shall designate the Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators, as may !e necessary, p rs ant to the selection proced re agreed pon in the Collective &argaining Agreement, "hich shall act "ith the same force and effect as if the Ar!itrator or panel of Ar!itrators has !een selected !y the parties as descri!ed a!ove. ........ 1. CONTRACT ADMINISTRATION AS PART OF THE DUTY TO BARGAIN Collective !argaining is not an end in itself. At is a means to an end, "hich is the ma$ing of collective agreements sta!ilizing employment relations for a period of time "ith res lts advantageo s !oth to the "or$er and the employer. ;o"ever narro"ly it may canalize its co rse, the e0ec tion of a contract does not complete collective !argaining. 'iece rates and "or$ assignments fre< ently re< ire day-to-day ad# stments4 periodic decisions m st !e made concerning s ch matters as shop r les, #o! content, and the letting of s !contracts. /here "ill !e am!ig ities in the agreement to !e clarified and gaps !e filled. An other "ords, the d ty to !argain contin es into the contract administration stage. An effect, therefore, 8contract negotiations are the legislative process of collective !argaining4 the day-to-day "or$ing o t of plant pro!lems is its administrative or # dicial aspects. =trengthening the !inding force of the C&A, Art. 24, considers as nfair la!or practice any act that violates an e0isting collective !argaining agreement. & t this la" m st !e related to Art, 231 "hich limits that $ind of 2@' to 8gross violations9 only.

2nilaterally form lated r les and policy can neither contradict nor ndermine the C&A provisions.
=ince the collective !argaining agreement is considered the la" !et"een the parties, containing as it does the agreed terms of employment of the employee "ith his employer, nilaterally imposed orders or r les < alifying the terms contained in the agreement are s !ordinate to the C&A. At most, s ch r les, s ch as the r les on trips a!road form lated !y petitioner NschoolO a fe" months !efore @egaspis application, are merely s ppletory and can neither contradict nor ndermine the terms fo nd in the C&A.

2.1 Constr ing the Contract


/he C&A !eing a contract, the r les em!odied in the Civil Code on interpretation of contracts sho ld govern. /he intent of the parties sho ld !e ascertained !y considering relevant provisions of the said C&A. /he intention of the parties is primordial4 if the terms of the contract are clear, the literal meaning of the stip lations shall control, ! t if the "ords appear to !e contrary to the evident intention of the parties, the latter shall prevail over the former. Any do !ts or am!ig ity in the contract !et"een management and the nion mem!ers sho ld !e resolved in the light of Article 1()2 of the Civil Code thatD An case of do !t, all la!or legislation and all la!or contracts shall !e

4:
constr ed in favor of the safety and decent living for the la!orer. /his is also in consonance "ith the principle en nciated in the @a!or Code that all do !ts sho ld !e resolved in favor of the "or$er. & t contracts "hich are not am!ig o s are to !e interpreted according to their literal meaning and sho ld not !e interpreted !eyond their o!vio s intendment. Compliance "ith a C&A is mandated !y the e0pressed policy to give protection to la!or. An the same vein, C&A provisions sho ld !e ?constr ed li!erally rather than narro"ly and technically, and the co rts m st place a practical and realistic constr ction pon it, giving d e consideration to the conte0t in "hich it is negotiated and p rpose "hich it is intended to serve.? /his is fo nded on the dict m that a C&A is not an ordinary contract ! t one impressed "ith p !lic interest. At goes "itho t saying, ho"ever, that only provisions em!odied in the C&A sho ld !e so interpreted and complied "ith.

*anagers, "ho are not allo"ed to nionize to !argain collectively "ith the employer, cannot claim the !enefits contained in the C&A negotiated !y the "or$ers nder them. /hey cannot o!tain indirectly "hat they cannot do directly.
Accordingly, managerial employees cannot, in the a!sence of an agreement to the contrary, !e allo"ed to share in the concessions o!tained !y the la!or nion thro gh collective negotiation. 6ther"ise, they "o ld !e e0posed to the temptation of coll ding "ith the nion d ring the negotiations to the detriment of the employer. ;o"ever, there is nothing to prevent the employer from granting !enefits to managerial employees e< al to or higher than those afforded to nion mem!ers. /here can !e no conflict of interest "here the employer himself vol ntarily agrees to grant s ch !enefits to managerial employees. An the case at !ar, at the !eginning of petitioner>s employment, he "as told that those "ho are not covered !y the C&A "o ld nevertheless !e entitled to !enefits "hich "o ld !e, if not higher, at least e< ivalent to those provided in the C&A. /hat private respondents made s ch a promise to petitioner is not denied !y them.

2.2 'roposal Contained in *in tes ! t Fot in the C&A Atself A proposal mentioned in the negotiation ! t not em!odied in the collective !argaining contract itself is not part of the C&A. At cannot serve as !asis of a charge of violating the C&A or of !argaining in !ad faith. 2.3 8Tipper Cla se9 A device to forestall negotiation proposals after the C&A has !een signed is the 8zipper cla se.9 At is a stip lation in a C&A indicating that iss es that co ld have !een negotiated ! t not contained in the C&A cannot !e raised for negotiation "hen the C&A is already in effect. An short, the C&A is a complete agreement4 negotiation is closed, as a zipper does. 3. LAW DEEMED WRITTEN IN CONTRACT /he principle is th s "ell-settled that an e0isting la" enters into and forms part of a valid contract "itho t the need for the parties e0pressly ma$ing reference to it. 6nly th s co ld its validity insofar as some of its provisions are concerned !e ass red. . BINDING EFFECT OF AGREEMENT
A collective !argaining agreement entered into !y officers of a nion, as agent of the mem!ers, and an employer, gives rise to valid enforcea!le contract al relations, against the individ al nion mem!ers in matters that affect them pec liarly, and against the nion in matters that affect the entire mem!ership or large classes of its mem!ers,? and ?a nion mem!er "ho is employed nder an agreement !et"een the nion and his employer is !o nd !y the provisions thereof, since it is a #oint and several contract of the mem!ers of the nion entered into !y the nion as their agent.?

4.3 1ffect of Collective Agreement on the Andivid al Contracts of 1mployment Ehen a collective agreement is concl ded !et"een a la!or nion and an employer, the mem!ers of the la!or nion are precl ded from entering into individ al contracts of employment. & t if the agreement merely fi0es "ages and "or$ing conditions, the employer may enter into partic lar contracts of employment "ith his employees even tho gh !oth are !o nd !y the general contract as to "ages and "or$ing conditions. $. ENFORCEABILITY ENTERPRISE :.1 ' rchase of Assets
/he r le is that nless e0pressly ass med, la!or contracts s ch as employment contracts and collective !argaining agreements are not enforcea!le against a transferee of an enterprise, la!or contracts !eing in personam, th s !inding only !et"een the parties. A la!or contract merely creates an action in personally and does not create any real right "hich sho ld !e respected !y third parties. /his concl sion dra"s its force from the right of an employer to select his employees and to decide "hen to engage them as protected nder o r Constit tion, and the same can only !e restricted !y la" thro gh the e0ercise of the police po"er. As a general r le, there is no la" re< iring a !ona fide p rchaser of assets of an on-going concern to a!sor! in its employ the employees of the latter.

AGAINST

TRANSFEREE

OF

:.2 10ceptions
Altho gh the p rchaser of the assets or enterprise is not legally !o nd to a!sor! in its employ the employers of the seller of s ch assets or enterprise, the parties are lia!le to the employees if the transaction !et"een the parties is colored or clothed "ith !ad faith.

4.1 'ersons 1ntitled to &enefits


At is tr e that "hatever !enefits the ma#ority nion o!tains from the employer accr e to its mem!ers as "ell as to non-mem!ers. Ior the !enefits of a collective !argaining agreement are e0tended to all employees regardless of their mem!ership in the nion !eca se to "ithhold the same from the nonmem!ers "o ld !e to discriminate against them. At is even conceded that a la!orer can claim !enefits from a collective !argaining agreement entered into !et"een the company and the nion of "hich he is a mem!er at the time of the concl sion of the agreement, even after he has resigned from said nion.

:.3 *erger and Consolidation *erger ta$es place "hen t"o or more corporations #oin into a single corporation "hich is one of the merging corporations4 the separate e0istence of the other constit ent corporations ceases. Consolidation occ rs "hen t"o or more corporations #oin into a ne" single corporation4 the separate e0istence of all the constit ent corporations ceases, e0cept that of the consolidated corporation.

4.2 *anagers Fot 1ntitled to C&A &enefits4 10ception

43
=ection ,). 1ffects of merger or consolidation. - /he merger or consolidation shall have the follo"ing effectsD 000 :. /he s rviving or consolidated corporation shall !e responsi!le and lia!le for all the lia!ilities and o!ligations of each of the constit ent corporations in the same manner as if s ch s rviving or consolidated corporation had itself inc rred s ch lia!ilities or o!ligations4 and any pending claim, action or proceeding !ro ght !y or against any of s ch constit ent corporations may !e prosec ted !y or against the s rviving or consolidated corporation. /he rights of creditors or liens pon the property of any of s ch constit ent corporations shall not !e impaired !y s ch merger or consolidation. %n"ith their employer !y the simple e0pedient of changing their !argaining agent. And it is in the light of this that the phrase ?said ne" agent "o ld have to respect said contract? m st !e nderstood. At only means that the employees, thr their ne" !argaining agent, cannot renege on their collective !argaining contract, e0cept of co rse to negotiate "ith management for the shortening thereof. /he ?s !stit tionary? doctrine, therefore, cannot !e invo$ed to s pport the contention that a ne"ly certified collective !argaining agent a tomatically ass mes all the personal nderta$ings 7 li$e the no-stri$e stip lation here 7 in the collective !argaining agreement made !y the deposed nion. Ehen &&E2 !o nd itself and its officers not to stri$e, it co ld not have validly !o nd also all the other rival nions e0isting in the !argaining nits in < estion. &&E2 "as the agent of the employees, not of the other nions "hich possess distinct personalities. /o consider 2FA6F contract ally !o nd to the no-stri$e stip lation "o ld therefore violate the legal ma0im that res inter alios nec prodest nec nocet.

:.4 Eiley Boctrine /he disappearance !y merger of a corporate employer "hich has entered into a collective !argaining agreement "ith a nion does not a tomatically terminate all rights of the employees covered !y the agreement, even tho gh the merger is for gen ine ! siness reasons. 2nder the Eiley doctrine, a d ty to ar!itrate arising from a collective !argaining agreement s rvives the employers ceasing to do ! siness as a separate entity after its merger "ith a s !stantially large corporation, so as to !e !inding on the larger corporation, "here relevant similarity and contin ity of operations across the change in o"nership is evidenced !y the "holesale transfer of the smaller corporations employees to the larger corporations plant. Af a contract al d ty to ar!itrate s rvives the employers merger into another corporate employer, < estion as to the effect of the merger on the rights of the employees covered !y the agreement7the former employees of the merged employer7are ar!itra!le if < estions as to those rights "o ld have !een ar!itra!le !efore the merger. & t a d ty to ar!itrate arising from collective !argaining agreement does not s rvive in every case in "hich the o"nership or corporate str ct re of an enterprise is changed. At does not s rvive "here there is lac$ of any s !stantial contin ity of identity in the ! siness enterprise !efore and after a change, or "here the nion a!andons its right to ar!itration !y failing to ma$e its claims $no"n. %. CHANGE OF BARGAINING AGENT' SUBSTITUTIONARY DOCTRINE ;o" does disaffiliation affect the C&AJ
/he agreement is !inding on the parties for the period therein specified. /he employees cannot revo$e the validly e0ec ted collective !argaining contract "ith their employer !y the simple e0pedient of changing their !argaining representative. /h s, "hen there occ rs a shift in employees> nion allegiance after the e0ec tion of a !argaining contract "ith their employer, and the employees change their !argaining representative, the contract contin es to !ind them p to its e0piration date. /he ne" agent, ho"ever, may !argain for the shortening of the contract period. An form lating the ?s !stit tionary? doctrine, the only consideration involved "as the employees> interest in the e0isting !argaining agreement. /he agent>s interest never entered the pict re. An fact, the # stification + for said doctrine "asD 000 that the ma6ority of the employees , as an entity nder the stat te, is the tr e party in interest to the contract, holding rights thro gh the agency of the nion representative. /h s, any e0cl sive interest claimed !y the agent is defeasi!le at the "ill of the principal.... %1mphasis s pplied=tated other"ise, the ?s !stit tionary? doctrine only provides that the employees cannot revo$e the validly e0ec ted collective !argaining contract

+. GRIEVANCES A grievance is defined as 8any < estion !y either the employer or the nion regarding the interpretation or application of the collective !argaining agreement or company personnel policies or any claim !y either party that the other party is violating any provision of the C&A or company personnel policies.9 Af the term grievance is to !e applied in the loose or generic sense, any disp te or controversy respecting terms and conditions of employment "hich an employee or gro p of employees may present to the employer can !e a grievance, even "itho t a nion or C&A. /he e0pansion of the original and e0cl sive # risdiction of vol ntary ar!itrators to incl de < estions arising from the interpretation and enforcement of company personnel policies has the effect of "idening the meaning and interpretation of a grievance to incl de a sit ation "here there is no collective !argaining agent and no C&A. 'ersonnel policies are g iding principles stated in !road, long-range terms that e0press the philosophy or !eliefs of an organizations top a thority regarding personnel matters. /hey deal "ith matters affecting efficiency and "ell-!eing of employees and incl de, among others, the proced res in administration of "ages, !enefits, promotions, transfer and other personnel movements "hich are s ally not spelled o t in the collective agreement. /he s al so rce of grievances, ho"ever, is the r les and reg lations governing disciplinary actions. (.1 &y-passing the Grievance *achineryD 2@' All grievances arising from the implementation or interpretation of the collective !argaining agreement andCor interpretation and enforcement of company personnel policies are comp lsorily s !#ect to the grievance of machinery. 2pholding the re< irement, the Co rt has r led that the grievance proced re provided in the C&A sho ld !e adhered to !y the parties. 5ef sal or fail re to do so is an nfair la!or practice, !eca se the grievance proced re is part of the contin o s process of collective !argaining. At is intended to promote friendly dialog e !et"een la!or and management as a means of maintaining ind strial peace. &efore an aggrieved employee may resort to the co rts to enforce his individ al rights nder a !argaining contract, the employee m st

4(
e0ha st all the remedies availa!le to him nder s ch contract. And a co rt sho ld not entertain any complaint !y an aggrieved employee ntil proper se has !een made of the contract grievance proced re agreed pon !y employer and the !argaining representative. /he grievance machinery nder the agreement is the very heart of ind strial self)government. *ay a grievance !e !ro ght to vol ntary ar!itration "itho t passing thro gh the grievance proced re nder the C&AJ /his appears to !e proscri!ed !y the @a!or Code "hich directs the parties to a C&A to esta!lish a grievance machinery for the ad# stment and resol tion of grievances arising from the interpretation or enforcement of company personnel policies. An vie", ho"ever, of the =tate policy to enco rage vol ntary ar!itration of all other la!or-management disp tes, it is s !mitted that a grievance may !e !ro ght directly to vol ntary ar!itration "itho t passing thro gh the grievance machinery, especially "hen the latter has !een proven to !e ineffective in the past, or "hen the parties inadvertently failed to incl de a grievance machinery provision in their C&A. (.2 Eaiver of Grievance *achinery 'roced re and = !mission to LA
Article 232 of the @a!or Code provides that pon agreement of the parties, the vol ntary ar!itrator can hear and decide all other la!or disp tes. Contrary to the finding of the Co rt of Appeals, vol ntary ar!itration as a mode of settling the disp te F.5 42t 9206e7 H/24 0e5/247e4t5 . &oth parties indeed agreed to s !mit the iss e of validity of the dismissal of petitioner to the # risdiction of the vol ntary ar!itrator !y the = !mission Agreement d ly signed !y their respective co nsels. As the vol ntary ar!itrator had # risdiction over the parties> controversy, disc ssion of the second iss e is no longer necessary. /he employees "aiver of her option to s !mit her case to grievance machinery did not amo nt to relin< ishing her right to avail herself of vol ntary ar!itration. %c- Af no settlement is reached, the grievance shall !e referred to the grievance committee "hich shall have ten %1)- days to decide the case. Ehere the iss e involves or arises from the interpretation or implementation of a provision in the collective !argaining agreement, or from any order, memorand m, circ lar or assignment iss ed !y the appropriate a thority in the esta!lishment, and s ch iss e cannot !e resolved at the level of the shop ste"ard or the s pervisor, the same may !e referred immediately to the grievance committee.

,. VOLUNTARY ARBITRATION
=ection 3. = !mission to vol ntary ar!itration. - Ehere grievance remains nresolved, either party may serve notice pon the other of its decision to s !mit the iss e to vol ntary ar!itration. /he notice shall state the iss e or iss es to !e ar!itrated, copy thereof f rnished the !oard or the vol ntary ar!itrator or panel of vol ntary ar!itrators named or designated in the collective !argaining agreement. Af the party pon "hom the notice is served fails or ref ses to respond favora!ly "ithin seven %(- days from receipt thereof, the vol ntary ar!itrator or panel of vol ntary ar!itrators designated in the collective !argaining agreement shall commence vol ntary ar!itration proceedings. Ehere the collective !argaining agreement does not so designate, the !oard shall call the parties and appoint a vol ntary ar!itrator or panel of vol ntary ar!itrators, "ho shall thereafter commence ar!itration proceedings in accordance "ith the proceeding paragraph. An instances "here parties fail to select a vol ntary ar!itrator or panel of vol ntary ar!itrators, the regional !ranch of the &oard shall designate the vol ntary ar!itrator or panel of vol ntary ar!itrators, as may !e necessary, "hich shall have the same force and effect as if the parties have selected the ar!itrator.

/he parties to a C&A "ill decide on the n m!er of ar!itrators "ho may hear a disp te only "hen the need for it arises. 1ven the la" itself does not specify the n m!er of ar!itrators. /heir alternatives 7 "hether to have one or three ar!itrators 7 have their respective advantages and disadvantages. An this matter, cost is not the only consideration4 f ll deli!eration on the iss es is another, and it is !est accomplished in a hearing cond cted !y three ar!itrators. An effect, the parties are afforded the latit de to decide for themselves the composition of the grievance machinery as they find appropriate to a partic lar sit ation. @a!or ar!itration is the reference of a la!or disp te to a third party for determination on the !asis of evidence and arg ments presented !y s ch parties, "ho are !o nd to accept the decision.
Lol ntary ar!itration has !een defined as a contract al proceeding "here!y the parties to any disp te or controversy, in order to o!tain a speedy and ine0pensive final disposition of the matter involved, select a # dge of their o"n choice and !y consent s !mit their controversy to him for determination. 2nder vol ntary ar!itration, on the other hand, referral of a disp te !y the parties is made, p rs ant to a vol ntary ar!itration cla se in their collective agreement, to an impartial third person for a final and !inding resol tion. Adeally, ar!itration a"ards are s pposed to !e complied "ith !y !oth parties "itho t delay, s ch that once an a"ard has !een rendered !y an ar!itrator, nothing is left to !e done !y !oth parties ! t to comply "ith the same. After all, they are pres med to have freely chosen ar!itration as the mode of settlement for that partic lar disp te. ' rs ant thereto, they have chosen a m t ally accepta!le ar!itrator "ho shall hear and decide their case. A!ove all, they have m t ally agreed to de !o nd !y said ar!itrator>s decision. Comp lsory ar!itration is a system "here!y the parties to a disp te are compelled !y the government to forego their right to stri$e and are compelled to accept the resol tion of their disp te thro gh ar!itration !y a third party. 1 /he essence of ar!itration remains since a resol tion of a disp te is arrived at !y resort to a disinterested third party "hose decision is final and !inding on

(.3 =tr ct re and 'roced re


An the a!sence of applica!le provision in the collective !argaining agreement, a grievance committee shall !e created "ithin ten %1)- days from signing of the collective !argaining agreement. /he committee shall !e composed of at least t"o %2- representatives each from the mem!ers of the !argaining nit and the employer, nless other"ise agreed pon !y the parties. /he representatives from among the mem!ers of the !argaining nit shall !e designated !y the nion. =ection 2. 'roced re in handling grievances. - An the a!sence of a specific provision in the collective !argaining agreement or e0isting company practice prescri!ing for the proced res in handling grievance, the follo"ing shall applyD %a- An employee shall present this grievance or complaint orally or in "riting to the shop ste"ard. 2pon receipt thereof, the shop ste"ard shall verify the facts and determine "hether or not the grievance is valid. %!- Af the grievance is valid, the shop ste"ard shall immediately !ring the complaint to the employee>s immediate s pervisor. /he shop ste"ard, the employee and his immediate s pervisor shall e0ert efforts to settle the grievance at their level.

4,
the parties, ! t in comp lsory ar!itration, s ch a third party is normally appointed !y the government. An 'hilippine conte0t, the 8# dge9 in vol ntary ar!itration is called ar!itrator, "hile that in comp lsory is la!or ar!iter. /he # risdiction of a LA is stated in Articles 231 and 232 "hile that of an @A is in Article 21(.

/he preferred method of selection is !y m t al agreement of the parties. Alternative methods incl de the selection or appointment !y an administrative agency li$e the FC*&. 'arties in general may choose !et"een the se of a temporary %"hen a disp te is already at hand4 specific- or permanent ar!itrator %!efore a disp te arises4 for a period of time, s ally d ring the life of the C&A-. /hey have also a choice as to the n m!er of ar!itrators, either a sole ar!itrator or a panel of ar!itrators or Ar!itration &oard. 11. DISTINGUISHED FROM A COURT OF LAW Co rt of @a" Iormal Iollo" precedents 5 les of evidence o!served Becisions may !e appealed to the higher co rt ;ear a great variety of cases =ervices of a la"yer is essential d e to comple0ity Ar!itration Anformal Fot o!liged Fot o!served Fo compara!le appeal reco rse ;ear only ind strial disp tes Fot essential

,.1 Lol ntary Ar!itrationD A 'rivate K dicial =ystem A vol ntary ar!itrator 8is not a p !lic tri! nal imposed pon the parties !y a s perior a thority "hich the parties are o!liged to accept. ;e has no general character to administer # stice for a comm nity "hich transcends the parties. ;e is rather part of a system of selfgovernment created !y and confined to the parties.9 /he primary f nction of vol ntary la!or ar!itration is to provide %1- a process for the orderly disposition of disp tes and %2- a fo ndation for sta!le la!or-management relations. ,.2 Lol ntary Ar!itrationD A *aster 'roced re An la!or-management relations vol ntary ar!itration is a master proced re. Any and all $inds of la!or disp tes may !e s !mitted to, settled, or resolved thro gh vol ntary ar!itration, if the parties so desire. *oney claims, !argaining deadloc$s, stri$e or loc$o t, employment termination, and even < estions a!o t e0istence or a!sence of employer-employee relationship, may !e resolved !y the parties7"ith finality7!y availing themselves of vol ntary ar!itration. As a master proced re vol ntary ar!itration ta$es precedence over other disp te settlement devices % i$e$, cases !efore the la!or ar!iter or =ecretary of @a!or or the F@5CA disp te pending in vol ntary ar!itration %or comp lsory ar!itration, for that matter- cannot !e the s !#ect of a stri$e or loc$o t notice. :. WHO MAY ARBITRATOR BE ACCREDITED AS VOLUNTARY

Ar!itration, in s m, is a non-technical and relatively ine0pensive proced re for o!taining a < ic$ sol tion to ind strial disp tes !y persons "ho have specialized $no"ledge of la!or management relations. ........ Article. 231. K risdiction of Lol ntary Ar!itrators or panel of Lol ntary Ar!itrators. - /he Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators shall have original and e0cl sive # risdiction to hear and decide all nresolved grievances arising from the interpretation or implementation of the Collective &argaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective &argaining Agreement, e0cept those "hich are gross in character, shall no longer !e treated as nfair la!or practice and shall !e resolved as grievances nder the Collective &argaining Agreement. Ior p rposes of this article, gross violations of Collective &argaining Agreement shall mean flagrant andCor malicio s ref sal to comply "ith the economic provisions of s ch agreement. /he Commission, its 5egional 6ffices and the 5egional Birectors of the Bepartment of @a!or and 1mployment shall not entertain disp tes, grievances or matters nder the e0cl sive and original # risdiction of the Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators and shall immediately dispose and refer the same to the Grievance *achinery or Lol ntary Ar!itration provided in the Collective &argaining Agreement. ........ Article. 232. K risdiction over other la!or disp tes. - /he Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators, pon agreement of the parties, shall also hear and decide all other la!or disp tes incl ding nfair la!or practices and !argaining deadloc$s. ........ 1. ARBITRABLE DISPUTES

/he follo"ing are the minim m criteria for accreditation as vol ntary ar!itratorD 1. A Iilipino citizen residing in the 'hilippines4 2. A holder of at least a &achelors Begree in any field of !ehavioral or applied sciences or e< ivalent ed cational training short of a &achelors Begree4 3. At least five %:- years e0perience in the field of @a!or-*anagement relations4 4. Completion of a training co rse on vol ntary ar!itration cond cted !y the &oard4 and :. A person of good moral character, noted for impartiality, pro!ity, and has not !een civilly, criminally and administratively ad# dged g ilty of any offense involving moral t rpit de as evidenced !y a d ly s"orn affidavit.

1B. HOW VOLUNTARY ARBITRATOR IS CHOSEN A vol ntary ar!itrator is chosen !y the parties themselves % preferably accredited !y the FC*&-. /he choice is s ally infl enced !y the tr st in the persons fairness and $no"ledge of the dynamics, incl ding la", of la!or-management relation.

4+
An the field of la!or relations, ar!itration applies to t"o $inds of disp tesD %1- contract-negotiation disp tes4 and %2- contractinterpretation disp tes. ontract negotiation disp tes are disp tes as to the terms of a collective !argaining agreement. Ehere there is an e0isting agreement to ar!itrate s ch disp tes, and a !argaining deadloc$ or impasse has arisen, the disp tants s !mit to an impartial o tsider for settlement the collective !argaining iss e "hich they had !een na!le to settle !y themselves, "hether or not aided !y conciliators. ontract interpretation disp tes are disp tes arising nder an e0isting collective !argaining agreement, involving s ch matters as the interpretation and application of the contract, or alleged violation of its provisions. Ar!itration of contract negotiation disp tes is often $no"n as ar!itration of 8interest,9 "hile ar!itration of contract interpretation disp tes is $no"n as ar!itration of 8grievance9 or 8rights.9 2. &URISDICTION OF L.A. AND V.A.
/he aforecited provisions of la" cannot !e read in isolation or separately. /hey m st !e read as a "hole and each Article of the Code reconciled one "ith the other. An analysis of the provisions of Articles 21(, 231, and 232 indicates, thatD 1. /he # risdiction of the @a!or Ar!iter and Lol ntary Ar!itrator or 'anel of Lol ntary Ar!itrators over the cases en merated in Articles 21(, 231 and 232, can possi!ly incl de money claims in one form or another. 2. /he cases "here the @a!or Ar!iters have original and e0cl sive # risdiction are en merated in Article 21(, and that of the Lol ntary Ar!itrator or 'anel of Lol ntary Ar!itrators in Article 231. 3. /he original and e0cl sive # risdiction of @a!or Ar!iters is < alified !y an e0ception as indicated in the introd ctory sentence of Article 21( %a-, to "itD Art. 21(. K risdiction of @a!or Ar!iters . . . %a- 10cept as other"ise provided nder this Code the @a!or Ar!iter shall have original and e0cl sive # risdiction to hear and decide . . . the follo"ing cases involving all "or$ers. . . . /he phrase ?10cept as other"ise provided nder this Code? refers to the follo"ing e0ceptionsD A. Art. 21(. K risdiction of @a!or Ar!iters . . . 000 %c- Cases arising from the interpretation or implementation of collective !argaining agreement and those arising from the interpretation or enforcement of company proced reCpolicies shall !e disposed of !y the @a!or Ar!iter !y referring the same to the grievance machinery and vol ntary ar!itrator as may !e provided in said agreement. &. Art. 232. K risdiction over other la!or disp tes. 7 /he Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators, pon agreement of the parties, shall also hear and decide all other la!or disp tes incl ding nfair la!or practices and !argaining deadloc$s. 4. /he # risdiction of Lol ntary Ar!itrator or 'anel of Lol ntary Ar!itrators is provided for in Arts. 231 and 232 of the @a!or Code as indicated a!ove. A. A close reading of Article 231 indicates that the original and e0cl sive # risdiction of Lol ntary Ar!itrator or 'anel of Lol ntary Ar!itrators is limited only toD . . . nresolved grievances arising from the interpretation or implementation of the Collective &argaining Agreement and those arising from the interpretation or enforcement of company personnel policies . . . Accordingly, violations of a collective !argaining agreement, e0cept those "hich are gross in character, shall no longer !e treated as nfair la!or practice and shall !e resolved as grievances nder the Collective &argaining Agreement. . . . . &. Lol ntary Ar!itrators or 'anel of Lol ntary Ar!itrators, ho"ever, can e0ercise # risdiction over any and all disp tes !et"een an employer and a nion andCor individ al "or$er as provided for in Article 232. At m st !e emphasized that the # risdiction of the Lol ntary Ar!itrator or 'anel of Lol ntary Ar!itrators nder Article 232 m st !e vol ntarily conferred pon !y !oth la!or and management. /he la!or disp tes referred to in the same Article 232 can incl de all those disp tes mentioned in Article 21( over "hich the @a!or Ar!iter has original and e0cl sive # risdiction. As sho"n in the a!ove conte0t al and "holistic analysis of Articles 21(, 231, and 232 of the @a!or Code, the Fational @a!or 5elations Commission correctly r led that the @a!or Ar!iter had no # risdiction to hear and decide petitioner>s money-claim- nderpayment of retirement !enefits, as the controversy !et"een the parties involved an iss e ?arising from the interpretation or implementation? of a provision of the collective !argaining agreement. /he Lol ntary Ar!itrator or 'anel of Lol ntary Ar!itrators has original and e0cl sive # risdiction over the controversy nder Article 231 of the @a!or Code, and not the @a!or Ar!iter.

2.1 K risdiction over /ermination Bisp tes /he preference or !ias of the la" in favor of vol ntary ar!itration # stifies the vie" that employment termination disp tes, arising from C&A or personnel policy implementation, are cogniza!le !y a vol ntary ar!itrator and not a la!or ar!iter. = ch termination cases, if filed "ith a la!or ar!iter, is to !e dismissed for lac$ of # risdiction and referred to the concerned FC*& 5egional &ranch for appropriate action.
Article 23) of the @a!or Code on grievance machinery and vol ntary ar!itrator states that ?%t-he parties to a Collective &argaining Agreement shall incl de therein provisions that "ill ens re the m t al o!servance of its terms and conditions. /hey shall esta!lish a machinery for the ad# stment and resol tion of grievances arising from the interpretation or implementation of their Collective &argaining Agreement and those arising from the interpretation or enforcement of company personnel policies.? At is f rther provided in said article that the parties to a C&A shall name or designate their respective representatives to the grievance machinery and if the grievance is not settled in that level, it shall a tomatically !e referred to vol ntary ar!itrators %or panel of vol ntary ar!itrators- designated in advance !y the parties. At need not !e mentioned that the parties to a C&A are the nion and the company. ;ence, only disp tes involving the nion and the company shall !e referred to the grievance machinery or vol ntary ar!itrators. Article 231 of the @a!or Code "hich grants to vol ntary ar!itrators original and e0cl sive # risdiction to hear and decide all nresolved grievances arising from the interpretation or implementation of the collective !argaining agreement and those arising from the interpretation or enforcement of company personnel policies. Fote the phrase ? nresolved grievances.? An the case at !ar, the termination of petitioner is not an nresolved grievance. Article 23) f rther provides that the parties to a C&A shall name or designate their respective representative to the grievance machinery and if the grievance is nsettled in that level, it shall a tomatically !e referred to the vol ntary ar!itrators designated in advance !y the parties to a C&A of the nion and the company. At can th s !e ded ced that only disp tes involving the nion and the company shall !e referred to the grievance machinery or vol ntary ar!itrators.

2.1a 8'olicies,9 85 les,9 8'roced res9 'olicies are form lated !y management even !efore a company opens for ! siness in order to g ide the men in the operational level, the line

:)
manager or s pervisor as to the scope of their activities, a thority and responsi!ility, and to ena!le them to arrive at so nd decisions. 'olicies are val a!le in fi0ing definite o!#ectives for the organization. 'olicy statements are also needed to allo" s !ordinate e0ec tives to ma$e fair and consistent decisions on rec rrent pro!lems. /hey promote niformity of action and prevent conflicting decisions especially as regards la!or matter.9 Company policies m st !e iss ed !y top management "hich is responsi!le for ma$ing ma#or policies that are !y nat re company"ide in application. *inor policies, !etter $no"n as r les and proced res, are the e0tension of ma#or policies and are s ally form lated !y minor e0ec tives or department managers. 5 les are specific g ides intended to govern cond ct and action of operating s pervisors and employees in the performance of their designated activities. 'roced res are made to specify "ays or methods of carrying o t policies and r les. A proced re tells "hat "or$ or tas$ to do, ho" to do it, and "hen to do it. 2.2 K risdiction over C&A Liolations C&A violations not constit ting 2@' are li$e"ise cogniza!le !y a vol ntary ar!itrator if not resolved thro gh the grievance machinery. Af the violations, ho"ever, are 8gross9 in character, these are to !e treated as nfair la!or practice "hich, follo"ing Art. 21( %a-1-, are to !e heard and decided !y a la!or ar!iter. /he la" "ants the ind strial players to resolve their differences !y and among themselves as m ch as possi!le. And if they need help, they are li$e"ise free to agree "here that help may come from.
Ior a 2@' case to !e cogniza!le !y the @a!or Ar!iter, and the F@5C to e0ercise its appellate # risdiction, the allegations in the complaint sho ld sho" prima facie the conc rrence of t"o things, namelyD %1- gross violation of the C&A4 AFB %2- the violation pertains to the economic provisions of the C&A. 2ns !stantiated concl sions of !ad faith and n# stified ref sal to re-employ petitioners, to o r mind, do not constit te gross violation of the C&A for p rposes of lodging # risdiction "ith the @a!or Ar!iter and the F@5C. Altho gh evidentiary matters are not re< ired %and even disco raged- to !e alleged in complaint, still, s fficient details s pporting the concl sion of !ad faith and n# st ref sal to re-employ petitioners m st !e indicated. I rthermore, it is even do !tf l if the C&A provision on re-employment fits into the accepted notion of an economic provision of the C&A. the comp lsory ar!itration process, the parties may opt to s !mit their disp te to vol ntary ar!itration. /he Fational @a!or 5elations Commission, its regional !ranches and 5egional Birectors of the Bepartment of @a!or and 1mployment shall not entertain disp tes, grievances or matters nder the e0cl sive and original # risdiction of the vol ntary ar!itrator or panel of vol ntary ar!itrators and shall immediately dispose and refer the same to the appropriate grievance machinery or vol ntary ar!itration provided in the collective !argaining agreement.

2.4 Bisp te over Companys Br g A! se 'olicy


A nions petition to en#oin implementation of the companys dr g policy is a la!or disp te !eyond 5/Cs # risdiction. At is a personnel policy disp te "ithin the # risdiction of a LA.

3. HOW VOLUNTARY ARBITRATION IS INITIATED Lol ntary ar!itration may !e initiated either !y 1- a = !mission or 2!y a Bemand or Fotice invo$ing a collective agreement ar!itration cla se. =ometimes !oth instr ments are sed in a case. = !mission is sometimes called a 8=tip lation9 or an 8Agreement to Ar!itrate.9 At is sed "here there is no previo s agreement to ar!itrate. /he = !mission, "hich m st !e signed !y !oth parties, descri!es an e0isting disp te4 it often names the ar!itrator, proced res in the hearing and it sometimes contains considera!le details of the ar!itrators a thority and other matters "hich the parties "ish to control. = !mission is more appropriate in interest disp tes since collective agreement generally do not provide for the ar!itration of s ch disp tes that may arise in the f t re. = !mission is often entered into after the disp te has materialized and the iss es can already !e defined. ;o"ever, Bemand or Fotice of Antent to Ar!itrate is more applica!le to rights disp te !eca se collective agreements are re< ired nder 5A 3(1: to provide for a grievance proced re and a vol ntary ar!itration cla se "ith respect to disp tes arising from the application or interpretation of the agreement. /h s, there is an 8agreement to ar!itrate9 f t re disp te that may arise nder and d ring the term of the C&A. Af a disp te is covered !y s ch an ar!itration cla se, ar!itration may !e initiated nilaterally !y one party !y serving pon the other a "ritten demand or notice of intent to ar!itrate. 3.1 /he = !mission Agreement4 10tent of Ar!itrators A thority Altho gh the contract may esta!lish the !readth of the ar!itrators po"er and the limits of his a thority, his po"er may !e more sharply defined in the s !mission agreement. Ire< ently, the parties #ointly form late in "riting the specific iss es to !e decided !y the ar!itrator. =ometimes the ar!itrator is as$ed !y the parties to help them frame the iss e on the !asis of the "ritten grievance or the case as presented. An general, the ar!itrator is e0pected to decide those < estions e0pressly stated and limited in the s !mission agreement. ;o"ever, since ar!itration is the final resort for the ad# dication of disp tes, the ar!itrator "ill ass me that he has the po"er to ma$e a final settlement. At is th s essential to stress that the Lol ntary Ar!itrator had plenary # risdiction and a thority to interpret the agreement to ar!itrate and to determine the scope of hs o"n a thority s !#ect only, in a proper case, to the certiorari # risdiction of this Co rt.

2.3 6ther Cases


=ection 4. K risdiction of vol ntary ar!itrator or panel of vol ntary ar!itrators. - /he vol ntary ar!itrator or panel of vol ntary ar!itrators shall have e0cl sive and original # risdiction to hear and decide all grievances arising from the implementation or interpretation of the collective !argaining agreements and those arising from the interpretation or enforcement of company personnel policies "hich remain nresolved after e0ha stion of the grievance proced re. /hey shall also have e0cl sive and original # risdiction, to hear and decide "age distortion iss es arising from the application of any "age orders in organized esta!lishments, as "ell as nresolved grievances arising from the interpretation and implementation of the prod ctivity incentive programs nder 5A 3+(1. 2pon agreement of the parties, any other la!or disp te may !e s !mitted to a vol ntary ar!itrator or panel of vol ntary ar!itrators. &efore or at any stage of

:1
Generally, the ar!itrator is e0pected to decide only those < estions e0pressly delineated !y the s !mission agreement. Fevertheless, the ar!itrator can ass me that he has the necessary po"er to ma$e a final settlement since ar!itration is the final resort for ad# dication of disp tes.
/he iss e of reg larization sho ld !e vie"ed as t"o-tiered iss e. Ehile the s !mission agreement mentioned only the determination of the date or reg larization, la" and # rispr dence give the vol ntary ar!itrator eno gh lee"ay of a thority as "ell as ade< ate prerogative to accomplish the reason for "hich the la" on vol ntary ar!itration "as created speedy la!or # stice. At !ears stressing that the nderlying reason "hy this case arose is to settle, once and for all, the ltimate < estion of "hether respondent employees are entitled to higher !enefits. /o re< ire them to file another action for payment of s ch !enefits "o ld certainly ndermine la!or proceedings and contravene the constit tional mandate providing f ll protection to la!or.

modify any provision of e0isting agreement pon "hich a proposed change is s !mitted for ar!itration. $. FUNCTIONS OF ARBITRATOR /he la!or ar!itrator nder a collective !argaining agreement is an indispensa!le agency in the contin o s collective !argaining process. ;e sits to settle disp tes at the plant level7disp tes "hich re< ire for their sol tion $no"ledge of the c stom and practices of a partic lar factory or of a partic lar ind stry as reflected in partic lar agreements. 6n the other hand, the po"er and a thority of ar!itrators in la!or disp te cases is derived from and limited !y the terms of the parties agreement. /he ar!itrator is confined to interpretation and application of the C&A4 he does not sit to dispense his o"n !rand of ind strial # stice. /he ar!itrators a thority is contract al rather than # dicial in nat re4 his po"er is conferred !y the C&A4 and his d ty "ith respect to that agreement is to settle disp tes arising there nder !y applying and interpreting that agreement. & t so long as an ar!itrator is not ar!itrary, he has "ide latit de in e0ercising his a thority, especially in fashioning an appropriate remedy. :.1 Ar!itrators Anterpretation of C&A

. POWERS OF THE ARBITRATOR /he st dy of collective !argaining agreements discloses different types of ar!itration cla ses "ith varying degrees of po"er granted to the ar!itration. /his po"er may !e very limited or n s ally !road in scope. 4.1 'o"er to Ar!itrate Any Bisp te /he contract cla se that gives the ar!itrator the !roadest scope of po"er is commonly $no"n as the 8disp tes9 cla se. /his type of cla se grants the ar!itrator # risdiction to hear and determine practically any matter in disp te !et"een the parties. *oreover, he is not necessarily limited to matters specifically stated in the contract. At is common, ho"ever, for some relationship to !e sho"n !et"een the matter in disp te and the provisions of the contract. 4.2 Fo 'o"er to Add /o or = !tract Irom the Contract =ome ar!itration cla ses limit the ar!itrators po"er to an interpretation and application of the contract and f rther specifically provide that he 8shall have no po"er to add to or s !tract from the contract. = ch cla ses clearly state the parties intention that the ar!itrator "ill !e empo"ered only to interpret the contract ! t not add to or modify it. As a general r le, the a thority of an ar!itrator em!races or covers the follo"ingD 1. General a thority to investigate and hear the case pon notice of the parties and to render an a"ard !ased on the contract and record of the case4 2. Ancidental a thority to perform all acts necessary to an ade< ate discharge of his d ties and responsi!ilities li$e setting and cond ct of hearing, attendance of "itnesses and proof doc ments and other evidences, fact-finding and other modes of discovery, reopening of hearing, etc.4 3. =pecial po"er in aid of his general contract al a thority li$e the a thority to determine ar!itra!ility of any partic lar disp te and to

At is said that an ar!itral a"ard does not dra" its essence from the C&A4 hence, there is an na thorized amendment or alteration thereof, ifD 1. At is so nfo nded in reason and fact4 2. At is so nconnected "ith the "or$ing and p rpose of the agreement4 3. At is "itho t fact al s pport in vie" of its lang age, its conte0t, and any other indicia of the parties> intention4 4. At ignores or a!andons the plain lang age of the contract4 :. At is mista$enly !ased on a cr cial ass mption "hich concededly is a nonfact4 3. At is nla"f l, ar!itrary or capricio s4 and (. At is contrary to p !lic policy.

........ Article. 232-A. 'roced res. - /he Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators shall have the po"er to hold hearings, receive evidences and ta$e "hatever action is necessary to resolve the iss e or iss es s !#ect of the disp te, incl ding efforts to effect a vol ntary settlement !et"een parties. All parties to the disp te shall !e entitled to attend the ar!itration proceedings. /he attendance of any third party or the e0cl sion of any "itness from the proceedings shall !e determined !y the Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators. ;earing may !e ad#o rned for ca se or pon agreement !y the parties. 2nless the parties agree other"ise, it shall !e mandatory for the Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators to render an a"ard or decision "ithin t"enty %2)- calendar days from the date of s !mission of the disp te to vol ntary ar!itration.

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/he a"ard or decision of the Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators shall contain the facts and the la" on "hich it is !ased. At shall !e final and e0ec tory after ten %1)- calendar days from receipt of the copy of the a"ard or decision !y the parties. 2pon motion of any interested party, the Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators or the @a!or Ar!iter in the region "here the movant resides, in case of the a!sence or incapacity of the Lol ntary Ar!itrator or panel of Lol ntary Ar!itrators, for any reason, may iss e a "rit of e0ec tion re< iring either the sheriff of the Commission or reg lar co rts or any p !lic official "hom the parties may designate in the s !mission agreement to e0ec te the final decision, order or a"ard. ........ 1. COMPLIANCE WITH DUTY TO ARBITRATE Af a C&A re< ires settlement of disp tes 8e0cl sively9 !y the ar!itration, then ar!itration is needed !efore co rt s its for !reach of the contract may !e filed. Fonetheless, the parties to a C&A may "aive the ar!itration covenants of the agreement, ! t their cond ct m st clearly sho" that intention. 2. WHO DETERMINES THE ARBITRATION PROCEDURES An practice, vol ntary ar!itration of la!or cases se proced res !ased on the @a!or Code as amended !y 5A 3(1: and its Amplementing 5 les, the C&A, and other agreements of the parties, the directives of the ar!itrator, and the proced ral r les of appropriate agencies li$e the FC*& 'roced ral G idelines in Cond ct of Lol ntary Ar!itration 'roceedings. 3. ETHICAL STANDARDS OF ARBITRATORS An ar!itrator is o!liged to maintain a high level of professional ethics in his relationship "ith the parties and the appointing agencies. ;e also has a responsi!ility to society. ;is cond ct sho ld !e a!ove reproach. =ince in effect, he is a # dge, and his ethics m st !e on the same high level as the code that governs the cond ct of # dicial tri! nals.
Iail re on the part of the vol ntary ar!itrator to render a decision, resol tion, order or a"ard "ithin the prescri!ed period, shall pon complaint of a party, !e s fficient gro nd for the &oard to discipline said vol ntary ar!itrator, p rs ant to the g idelines iss ed !y the =ecretary. An cases that the recommended sanction is de-listing, it shall !e nla"f l for the vol ntary ar!itrator to ref se or fail to t rn over to the !oard, for its f rther disposition, the records of the case "ithin ten %1)- calendar days from demand thereof. A vol ntary ar!itrator !y the nat re of her f cntions acts in < asi-# dicial capacity. /here is no reason "hy herdecisions involving interpretation of la" sho ld !e !eyond this Co rt>s revie". Administrative officials are pres med to act in accordance "ith la" and yet "e do hesitate to pass pon their "or$ "here a < estion of la" is involved or "here a sho"ing of a! se of a thority or discretion in their official acts is properly raised in petitions for certiorari.

/he @a!or Code and its Amplementing 5 les th s clearly reflect the important p !lic policy of enco raging reco rse to vol ntary ar!itration and of shortening the ar!itration process !y rendering the ar!itral a"ard non- appeala!le to the F@5C. /he res lt is that a vol ntary ar!itral a"ard may !e modified and set aside only pon the same gro nds on "hich a decision of the F@5C itself may !e modified or set aside, !y the = preme Co rt. 4.1 *otion for 5econsiderationU
=ection (. Iinality of A"ardCBecision. - /he decision, order, resol tion or a"ard of the vol ntary ar!itrator or panel of vol ntary ar!itrators shall !e final and e0ec tory after ten %1)- calendar days from receipt of the copy of the a"ard or decision !y the parties and it shall not !e s !#ect of a motion for reconsideration.

4.2 5evie" of A"ard !y ertiorari


/he vol ntary ar!itrator no less performs a state f nction p rs ant to a governmental po"er delegated to him nder the provisions therefor in the @a!or Code and he falls, therefore, "ithin the contemplation of the term ?instr mentality? in the afore< oted =ec. + of &.'. 12+. /he fact that his f nctions and po"ers are provided for in the @a!or Code does not place him "ithin the e0ceptions to said =ec. + since he is a < asi-# dicial instr mentality as contemplated therein. A fortiori, the decision or a"ard of the vol ntary ar!itrator or panel of ar!itrators sho ld li$e"ise !e appeala!le to the Co rt of Appeals, in line "ith the proced re o tlined in 5evised Administrative Circ lar Fo. 1-+:, # st li$e those of the < asi-# dicial agencies, !oards and commissions en merated therein. An effect, this e< ates the a"ard or decision of the vol ntary ar!itrator "ith that of the regional trial co rt. Conse< ently, in a petition for certiorari from that a"ard or decision, the Co rt of Appeals m st !e deemed to have conc rrent # risdiction "ith the = preme Co rt. As a matter of policy, this Co rt shall henceforth remand to the Co rt of Appeals petitions of this nat re for proper disposition.

4.2a Irom LA to CAD *ode of Appeal is 5 le 43, not 3:


/he mode of appeal from LA to the CA is therefore 5 le 43 of the 1++( 5 les of 'roced re. At is not 5 le 3: !eca se a petition for certiorari nder that 5 le lies only "here there is 8no appeal9 and no plain, speedy and ade< ate remedy in the ordinary co rse of la". Certiorari nder 5 le 3: cannot !e allo"ed "hen a party to a case fails to appeal a # dgment despite the availa!ility of that remedy, certiorari not !eing a s !stit te for lost appeal. /he remedies of appeal and certiorari are m t ally e0cl sive and not alternative or s ccessive.

. VOLUNTARY ARBITRATION FINAL' E!CEPTIONS

AWARD

GENERALLY

/he decisions of vol ntary ar!itrators m st !e given the highest respect and as a general r le m st !e accorded a certain meas re of finality. /his is especially tr e "here the ar!itrator chosen !y the parties en#oys the first rate credentials. At is not correct, ho"ever, that this respect precl des the e0ercise of # dicial revie" over their decisions. Anspite of stat tory provisions ma$ing >final> the decisions of certain administrative agencies, "e have ta$en cognizance of petitions < estioning these decisions "here "ant of # risdiction, grave a! se of discretion, violation of d e process, denial of s !stantial # stice, or erroneo s interpretation of the la" "ere !ro ght to o r attention.

4.3 Iindings of Iacts of a Lol ntary Ar!itrator ........ Article. 232-&. Cost of vol ntary ar!itration and Lol ntary Ar!itrators fee. - /he parties to a Collective &argaining Agreement shall provide therein a proportionate sharing scheme on the cost of vol ntary ar!itration incl ding the Lol ntary Ar!itrators fee. /he fi0ing of fee of Lol ntary Ar!itrators, "hether sho ldered "holly !y

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the parties or s !sidized !y the =pecial Lol ntary Ar!itration I nd, shall ta$e into acco nt the follo"ing factorsD %a- Fat re of the case4 %!- /ime cons med in hearing the case4 %c- 'rofessional standing of the Lol ntary Ar!itrator4 %d- Capacity to pay of the parties4 and %e- Iees provided for in the 5evised 5 les of Co rt. ........