[Part 1. COLLECTIVE BARGAINING CONCEPT AND PROCEDURE] Art. 250. Procedure in Collective Bargaining, 344
Art. 251. Duty to Bargain Collectively in the Absence of Collective Bargaining Agreements, 345
Comments and Cases
1. Nature of Collective Bargaining, 345 1.1 Defi nition, 345
1.1a CBA Defi ned, 346 1.2 Rationale, 346
1.3 Strength of the Collective Bargaining Method, 347 2. Emergence of Collective Bargaining, 348
2.1 Originator, 349
2.2 Adoption in the Philippines, 349 “The Status of Free Men”, 350
3. Parties to Collective Bargaining, 351
4. Jurisdictional Preconditions of Collective Bargaining, 351 4.1 Bargaining with Minority Union, ULP, 352
5. When Bargaining Should Begin, 353
6. Single Enterprise Bargaining Procedure Broadly Described, 354 7. Multi-Employer Bargaining, 354
7.1 Rationale of Multi-employer Bargaining, 355 7.2 Multi-employer Bargaining Procedure, 356 7.3 Unfavorable to Consumers?, 358
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Art. 252. Meaning of Duty to Bargain Collectively, 359
Art. 253. Duty to Bargain Collectively When There Exists a Collective Bargaining Agreement, 359
Comments and Cases
1. Duty to Bargain Defi ned, 360
1.1 Four Forms of ULP in Bargaining, 360 2. First ULP in Bargaining: Failure or Refusal to Meet
and Convene, 361
2.1 Unresolved Petition for Union Cancellation, 361 2.2 Selling the Company, 362
2.3 Successor Employer: Continuity and Identity, 363 2.4 Conversion to Independent Franchise or Operation, 364 2.5 Do Economic Exigencies Justify Refusal to Bargain?, 364 2.6 Acts not Deemed Refusal to Bargain, 365
2.7 Alleged Interference in the Selection of the Union’s Negotiating Panel, 367
2.8 Non-reply to Proposal; CBA Imposed on Employer, 367 2.8a Repetition in Divine Word University, 368
3. Second U.L.P. in Bargaining: Evading the Mandatory Subjects, 369 3.1 Wages and Employment Conditions, 369
3.1a Wage Factors; “Solomonic” Approach, 371 3.2 Workloads and Work Rules, 372
3.2a Code of Conduct, 372
3.3 Management Prerogatives Clause, 372 3.4 Union Discipline Clause, 373
3.5 Arbitration, Strike-Vote, or No-Strike Clauses, 373 3.6 No-Lockout Clause; Clause Fixing Contractual Term, 373 3.7 Signing Bonus, 373
3.8 Voluntary Benefi ts, 374
3.9 No Duty to Agree Even on Mandatory Subjects, 374 3.10 Non-mandatory Subjects, 375
3.11 Bargaining to the Point of Impasse: Not Necessarily Bad Faith, 375
3.12 When Is There Deadlock or Impasse?, 377
3.12a Duty to Bargain When There is Deadlock or
Impasse, 377
3.12b Strike or Lockout in Case of Deadlock, 378 4. Third ULP in Bargaining: Bad Faith, 379
4.1 Determination of Good Faith, 379
4.2 When Can Bargaining in Bad Faith Occur?, 380 4.3 Instances of Bad Faith: Delay of, or Imposing Time Limit on, Negotiations, 381
4.3a Bad Faitth: Surface Bargaining; Shifting Bargaining Positions; Blue Sky Bargaining, 384
4.3b Bad Faith: Infl exible Demands; Strike Amid Negotiation, 386
4.3c Bad Faith: Bloulwarism; Take-It-or-Leave-It
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4.4 Not Bad Faith to Propose Modifi cations to the Expiring
CBA, 388
4.5 Giving of Information, 388
5. Fourth ULP in Bargaining: Gross Violation of the Contract, 390 6. Ratifi cation by the CBU; Mandatory Requirements, 390
6.1 Invalid Ratifi cation, 390
6.2 When Ratifi cation Not Needed, 391 6.3 Ratifi ed but Unsigned, 392
6.4 Unratifi ed but Implemented, 392 7. Execution of Contract, 392
7.1 Unwritten or Unsigned Agreement, 393 7.2 Effect of Signing on Other Disputes, 393 8. Registration of CBA, 393
“Management’s Negotiation Strategy”, 394 8.1 Registration Requirements, 395 9. Implementation, then Renegotiation, 395 10. Automatic Renewal of CBA, 396
Art. 253-A. Terms of a Collective Bargaining Agreement, 399
Comments and Cases
1. Effectivity and Retroactivity, 399
1.1 Effectivity of CBA Concluded After Six Months from Expiration of Old CBA, 400
2. Duration of a C.B.A., 401
3. Extension of Effectivity of CBA, When Valid, 405 3.1 Ten-year Suspension of CBA, 405
Art. 254. Injunction Prohibited, 407
Comments and Cases
1. No Injunction Policy, 407
1.1 Reason of the No-Injunction Policy, 408
1.2 Injunction Issued by Regular Court, When Proper, 409 “Social Dumping/Concession Bargaining”, 410
Title VII — COLLECTIVE BARGAINING AND ADMINISTRATION OF AGREEMENT
[Part 2. EMPLOYEE PARTICIPATION AND REPRESENTATION] Art. 255. Exclusive Bargaining Representation and Workers’
Participation in Policy and Decision-Making, 411
Comments and Cases
1. Workers’ Participatory Right: Its Constitutional Meaning, 412 1.1 Employees’ Participation in Formulating the Code of Discipline, 415
2. Workers’ Participation as the Real Objective: The LMC, 417 2.1 Department’s Promotion of LMC and Other Councils, 418
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3. Individual Grievance, 419
4. Collective Bargaining Unit (CBU) Defi ned, 419
5. Appropriateness of Bargaining Unit; Factors Considered, 420 5.1 Bargaining History Not Decisive Factor, 422
5.2 Exclusion of Confi dential Employees, 423 5.3 Temporary or Part-Time Employees, 423 5.4 Seasonal Employees, 424
5.5 Probationary Employees, 424
6. Referendum Where Interests Are Dissimilar, 424
6.1 Desire of the Employees; The Globe Doctrine, 425 7. Single or “Employer Unit” is Preferred, 426
7.1 Exceptions to One-unit Policy, 426 8. Two Companies with Related Businesses, 427
8.1 Subsidiaries and Spun-off Corporations, 429 9. Summation of Signifi cance, 430
Art. 256. Representation Issue in Organized Establishments, 431 Art. 257. Petitions in Unorganized Establishments, 431
Art. 258. When an Employer May File Petition, 432 Art. 258-A. Employer as Bystander, 432
Art. 259. Appeal From Certifi cation Election Orders, 432
Comments and Cases
1. Determining the Bargaining Union: Overview of the Methods, 432 2. First Method: Voluntary Recognition (V.R.), 434
2.1 V.R. Under D.O. No. 40-03, 434
3. Second Method: Certifi cation Election (C.E.), 436 3.1 Fact-Finding, 436
3.1a Certifi cation Election Differentiated from Union Election, 437
3.2 Direct Certifi cation No Longer Allowed, 438
3.3 Who Files Petition for Certifi cation Election (PCE), 438 3.3a Intervention, 439
3.4 Where to File the PCE, 440 3.5 When to File the PCE, 440
3.6 Form and Contents of Petition, 441
3.7 Action on the Petition; Preminary Conference, 442 3.8 Action on the Petition; Hearings and Pleadings, 442 3.9 Action on the Petition: Denial; Eight Grounds, 443 3.9a First Ground: Non-appearance, 444
3.9b Second Ground: Illegitimacy: Unregistered
Union, 445
3.9c Third Ground: Illegitimacy: No Charter, 447 3.9d Fourth Ground: Absence of Employment
Relationship, 447
3.9e Fifth Ground: The 12-month Bar, 447
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3.9g Seventh Ground: Election Bar: Existing CBA, 451 3.9h Eight Ground: Election Bar: Lack of Support, 458 3.10 Prohibited Ground for the Denial/Suspension of the Petition, 461
3.10a Commingling, 461
3.10b Validity of Registration, 461
3.10c Authority to Decide Existence of Employer- Employee Relationship; Med-Arbiter’ Order Appealable to Secretary, 461
3.11 Employer a Bystander; Cannot Oppose PCE, 462 3.12 Action on the Petition; Approval, 463
3.13 Appeal of Order Granting or Denying Petition, 464 3.14 Conducting the C.E., 465
3.14a Pre-election Conference, 465 3.14b Conducting the C.E.; the Voters, 467 3.14c Conducting the C.E.: The Voting, 470 3.14d Conducting the C.E.: Canvassing of Votes, 472 3.14e Who Wins in the C.E.; Proclamation and Certifi cation, 472
3.14f Failure of Election; Motion for a Remedial
Election, 473
3.14g Run-off Election, 473
3.15 Appeal to Secretary as to Election Result, 475 3.16 Election Irregularities, Protest by Employer, 476 4. Third Method: Consent Election, 476
4.1 Effect of Consent Election, 477
5. The Winner as Sole and Exclusive Representative, 478
5.1 Exclusive Bargaining Agent Represents Even the Minority Union, 478
5.2 Protection and Capacity of the Loser; the Duty of Fair Representation, 478
5.3 Is the Bargaining Union a Majority Union?, 479
5.4 May the Bargaining Agent Represent Retired Employees?, 480 Title VII-A — GRIEVANCE MACHINERY AND VOLUNTARY
ARBITRATION
Art. 260. Grievance Machinery and Voluntary Arbitration, 481
Comments and Cases
1. Contract Administration as Part of the Duty to Bargain, 482 2. CBA, Law Between the Parties, 482
2.1 Construing the Contract, 486
2.2 Proposal Contained in Minutes but Not in the CBA Itself, 487 2.3 “Zipper Clause”, 488
3. Law Deemed Written in Contract, 489 4. Binding Effect of Agreement, 489
4.1 Persons Entitled to Benefi ts, 489
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4.3 Effect of Collective Agreement on the Individual Contracts of Employment, 490
5. Enforceability Against Transferee of Enterprise, 490 5.1 Purchase of Assets, 490
5.2 Exceptions, 492
5.3 Merger and Consolidation, 493 5.4 Wiley Doctrine, 493
6. Change of Bargaining Agent; Substitutionary Doctrine, 494 7. Grievances, 496
7.1 By-passing the Grievance Machinery: ULP, 496
7.2 Waiver of Grievance Machinery Procedure and Submission To VA, 498
7.3 Structure and Procedure, 498 8. Voluntary Arbitration, 499
“Settling Grievances”, 500
“Grievance Handling Tips For T.U.C.P. Shop Stewards”, 501
8.1 Voluntary Arbitration: A Private Judicial System, 503 8.2 Voluntary Arbitration, a Master Procedure, 503 9. Who May Be Accredited as Voluntary Arbitrator, 504 10. How Voluntary Arbitrator Is Chosen, 505
11. Distinguished from a Court of Law, 505
Art. 261. Jurisdiction of Voluntary Arbitrators or Panel of Voluntary Arbitrators, 506
Art. 262. Jurisdiction Over Other Labor Disputes, 506
Comments and Cases
1. Arbitrable Disputes, 506
2. Jurisdiction of L.A. and V.A., 507
2.1 Jurisdiction Over Termination Disputes, 509 2.1a “Policies,” “Rules,” “Procedures”, 510 2.2 Jurisdiction Over CBA Violations, 511 2.3 Other Cases, 512
2.4 Dispute over Company’s Drug Abuse Policy, 513 3. How Voluntary Arbitration Is Initiated, 513
3.1 The Submission Agreement; Extent of Arbitrator’s Authority, 513
4. Powers of the Arbitrator, 515
4.1 Power to Arbitrate Any Dispute, 515
4.2 No Power to Add to or Subtract from the Contract, 516 5. Functions of Arbitrator, 517
5.1 Arbitrator’s Interpretation of CBA, 517 Art. 262-A. Procedures, 518
Comments and Cases
1. Compliance with Duty to Arbitrate, 519
2. Who Determines the Arbitration Procedures, 519 3. Ethical Standards of Arbitrators, 519
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4. Voluntary Arbitration Award, Generally Final; Exceptions, 520 4.1 Motion for Reconsideration, 521
4.2 Review of Award by Certiorari, 522
4.2a From VA to CA: Mode of Appeal is Rule 43, not 65, 523
4.3 Findings of Facts of a Voluntary Arbitrator, 524
Art. 262-B. Cost of Voluntary Arbitration and Voluntary Arbitrator’s Fee, 524 “Principles of Union Management Relations”, 524
Title VIII — STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT