DAY FOUR

H. INTER-UNION AND INTRA-UNION DISPUTES

DOLE Department Order No. 40-03, series of 2003

1. What are inter- or intra-union disputes [DO40, s1&2].

De la Salle University vs. De la Salle University Employees Association. G.R. No. 169254, 23
August 2012.

2. What are effects of pendency of inter- or intra-union disputes [DO40, s3].

3. Who may file an inter- or intra-union disputes [DO40, s4].

4. Where to file inter- or intra-union disputes.

I. COLLECTIVE BARGAINING
Department Order No. 9. [21 June 1997], and
Department Order No. 40, [17 February 2003]

1. Duty to bargain collectively

1.1 a. Defined

b. Two kinds of Bargaining:

Single enterprise bargaining - One where any voluntarily recognized or certified labor
union may demand negotiations with its employer for terms and conditions of work
covering employees in the bargaining unit concerned.

Multiple Employer bargaining One where a legitimate labor union(s) and employers
may agree in writing to come together for the purpose of collective bargaining, provided:

(1) only legitimate labor unions who are incumbent exclusive bargaining agents may
participate and negotiate in multi-employer bargaining;

(2) only employers with counterpart legitimate labor unions who are incumbent
bargaining agents may participate and negotiate in multi-employer bargaining;
and

(3) only those legitimate labor unions who pertain to employer units who consent to
multi-employer bargaining may participate in multi-employer bargaining.

1.2 When duty to bargain exists/begins -

1.2.1 In the absence of a CBA - Art. 251, LC
1.2.2 Existence of a CBA - only during freedom
period, Art. 253, LC

1.3 Effect of refusal to bargain - constitutes ULP under Art. 258 (g)
Divine Word Univ. vs. NLRC, 213 SCRA 759
ISSUE: Whether Petitioner University should be declared in default, for their [disguised] refusal to
bargain, and unilaterally impose the Unions 1988 collective bargaining agreement proposals.
RULING: Yes. Petitioners contention that the DWUEU-ALUs proposals may not be unilaterally imposed
on it on the ground that a collective bargaining agreement is a contract wherein the consent of both
parties is indispensable is devoid of merit. A similar argument had already been disregarded in the case
of Kiok Loy v. NLRC, where we upheld the order of the NLRC declaring the unions draft CBA proposal as
the collective agreement which should govern the relationship between the parties. Kiok Loy v. NLRC is
applicable in the instant case considering that the facts therein have also been indubitably established in
this case.
These factors are:
(a) the union is the duly certified bargaining agent;
(b) it made a definite request to bargain and submitted its collective bargaining proposals, and
(c) the University made no counter proposal whatsoever.
As we said in Kiok Loy, [a] companys refusal to make counter proposal if considered in relation to the
entire bargaining process, may indicate bad faith and this is especially true where the Unions request for
a counter proposal is left unanswered. Moreover, the Court added in the same case that it is not
obligatory upon either side of a labor controversy to precipitately accept or agree to the proposals of the
other. But an erring party should not be tolerated and allowed with impunity to resort to schemes feigning
negotiations by going through empty gestures.
That being the said case, the petitioner may not validly assert that its consent should be a primordial
consideration in the bargaining process. By its acts, no less than its inaction which bespeak its insincerity,
it has forfeited whatever rights it could have asserted as an employer.

Colegio de San Juan de Letran vs. Assn of Employees and Faculty of Letran, 340 SCRA
587 [2000]

1.4 When duty to bargain ceases

1.5 Standard of conduct required

Surface bargaining
Standard Chartered Bank Employees Union (NUBE) vs. Secretary Nieves Confesor and
Standard Chartered Bank, GR No. 11497, 16 June 2004

Individual bargaining
Insular Life Assurance Employees-NATO vs. Insular Life Assurance Ltd., 76 SCRA 50
citing Melo Photo Supply Corp. vs. NLRB, 321 U.S. 332

2. What are bargainable issues - Art. 252, LC

3. Bargaining Deadlock

3.1 When is there a deadlock in collective bargaining

Capitol Medical Center Alliance of Concerned Employees
vs. Laguesma, 267 SCRA 503 (1997)

3.2 Difference between economic and non-economic provisions

San Miguel Food vs. SMC Employees Unino PTGWO, 535 SCRA 133 [2007].

Issues:
1) Whether the grievance machinery provision in the CBA is an economic provision.
2) Whether the seniority rule in the promotion of employees in the CBA is an economic
provision.

Ruling:
1) NO. For an unfair labor practice case to be cognizable by the Labor Arbiter, and the
NLRC to exercise its appellate jurisdiction, the allegations in the complaint should
show prima facie the concurrence of two things, namely: (1) gross violation of the
CBA; AND (2) the violation pertains to the economic provisions of the CBA. Here, the
Union charges petitioner to have violated the grievance machinery provision in the
 CBA. Such provision is not an economic provision. Hence, the second requirement
for a Labor Arbiter to exercise jurisdiction of a ULP is not present.
2) YES. The Union likewise charges petitioner to have violated the Job Security provision
in the CBA, specifically the seniority rule, in that petitioner appointed less senior
employees to positions at its Finance Department, consequently intentionally by-
passing more senior employees who are deserving of said appointment. Article 4 of
the Labor Code provides that All doubts in the implementation and interpretation of
the provisions of this Code, including implementing rules and regulations, shall be
resolved in favor of labor. Since the seniority rule in the promotion of employees has
a bearing on salary and benefits, it may, following a liberal construction of Article 261
of the Labor Code, be considered an economic provision of the CBA. Hence, the
Labor Arbiter has jurisdiction.

3.3 Remedies - Notice of strike or notice of lock-out

30-day cooling-period and 7-day strike ban

J. COLLECTIVE BARGAINING AGREEMENT

Department Order No. 9. [21 June 1997], and Department Order
No. 40, [17 February 2003]

1. Definition - B5 R1 S1 (jj), IRR

Interpretation: See previous discussion in page 2 hereof, General Priinciples

Benson Industries Employees Union-ALU-TUCP et. al. vs. Benson Industries, Inc., G.R. No.
200746, 06 August 2014, J. Perlas-Bernabe

Issue:
What is a CBA?

Held:
A collective bargaining agreement refers to the negotiated contract between a legitimate labor
organization and the employer concerning wages, hours of work and all other terms and conditions of
employment in a bargaining unit. As in all contracts, the parties in a CBA may establish such
stipulations, clauses, terms and conditions as they may deem convenient provided these are not
contrary to law, morals, good customs, public order or public policy. Thus, where the CBA is clear and
unambiguous, it becomes the law between the parties and compliance therewith is mandated by the
express policy of the law.

2. Contents - supra., IRR

2.1 Mandatory subjects

a) Compliance with minimum labor standards; what is effect of sub-standard

contract
RFM Corp Flour Division vs. KAMPI-NAFLU-KMU, GR No. 162324, 04 February 2009.

Issue:
W/N RFM corporation should pay the holiday pay agreed upon in the CBA on Dec 31,
2000 but fell on a Sunday.
Held:
Yes, RFM must pay because it was clear in the CBA that it shall pay a special holiday
pay for December 31 if it is declared a special holiday by the government, which the
government did in this case. There was no qualification in the CBA. If the terms of the
CBA are clear and have no doubt upon the intention of the contracting parties the literal
 meaning shall prevail. If it was the intention of the parties to exclude non-working-days,
then they should have incorporated such terms in the CBA.

b) Grievance procedure and voluntary arbitration

c) No strike/no lockout clause

Malayang Samahan ng mga Manggagawa sa M Greenfield
vs. Ramos, 326 SCRA 428 [2000]

ISSUE: WON the strike is illegal because of the non-strike clause in the CBA

RULING: NO.

With regard to the issue of the legality or illegality of the strike, the Labor Arbiter held that the strike
was illegal for the following reasons:xxx (2) it was made in violation of the "no strike, no lock-out"
clause in the CBA.xxx
Another reason why the Labor Arbiter declared the strike illegal is due to the existence of a no strike
no lockout provision in the CBA. Again, such a ruling is erroneous. A no strike, no lock out provision
can only be invoked when the strike is economic in nature, i.e. to force wage or other concessions
from the employer which he is not required by law to grant. Such a provision cannot be used to assail
the legality of a strike which is grounded on unfair labor practice, as was the honest belief of herein
petitioners. Again, whether or not there was indeed unfair labor practice does not affect the strike.

2.2 Union dues vs. Agency fees/special assessments; check-off

Art. 241 (r); Art. 222 (b)
Palacol vs. Calleja, 26 Feb. 1990

ISSUE: WON the special assessment is valid

RULING: NO

After a careful review of the records of this case, We are convinced that the deduction of
the 10% special assessment by the Union was not made in accordance with the
requirements provided by law.

The respondent-Union brushed aside the defects pointed out by petitioners in the manner
of compliance with the legal requirements as "insignificant technicalities." On the contrary,
the failure of the Union to comply strictly with the requirements set out by the law
invalidates the questioned special assessment. Substantial compliance is not enough in
view of the fact that the special assessment will diminish the compensation of the union
members. Their express consent is required, and this consent must be obtained in
accordance with the steps outlined by law, which must be followed to the letter. No
shortcuts are allowed.

The last stated purpose is contended by petitioners to fall under the coverage of Article 222
(b) of the Labor Code. The contention is impressed with merit. Article 222 (b) prohibits
attorney's fees, negotiations fees and similar charges arising out of the conclusion of a
collective bargaining agreement from being imposed on any individual union member. The
collection of the special assessment partly for the payment for services rendered by union
officers, consultants and others may not be in the category of "attorney's fees or
 negotiations fees." But there is no question that it is an exaction which falls within the
category of a "similar charge," and, therefore, within the coverage of the prohibition in the
aforementioned article.

The Court, therefore, stakes down the questioned special assessment for being a violation
of Article 241, paragraphs (n) and (o), and Article 222 (b) of the Labor Code.

Effect if ER fails to implement check-off

Holy Cross of Davao vs. Joaquin, 263 SCRA 358 [18 Oct 1996]

Issue:
W/N the employer is liable to the union of its employees, the amounts it failed to deduct
from their salaries (as union dues or agency fees) in accordance with the check-off provisions of
the CBA which it claims to have been automatically extended.
Held:
No, a check-off is a process or device whereby the employer, on agreement with the
union recognized as the proper bargaining representative, or on prior authorization from its
employees, deducts union dues or agency fees from the latters wage and remits them directly to
the union.
Although recognized by the Supreme court, no provision of law makes the employer
directly liable for the payment to the labor organization of union dues and assessments that the
former fails to deduct from its employees salaries and wages pursuant to a check-off stipulation.
It is the obligation of the individual employee.
The principle of unjust enrichment precludes the union to recover from the employer from
obligations pertaining to the individual worker in favor of the union.

2.3 Union security clauses: nature and kinds

Bank of the Philippine Islands vs. BPI Employees Union - Davao Chapter - Federation of
Unions in BPI Unibank, G.R. No. 164301, 10 August 2010; En Banc.

Issue:
What is a Union Shop Clause?

Held:
The Union Shop Clause in the CBA simply states that "new employees" who during the effectivity of the
CBA "may be regularly employed" by the Company must join the union within a specific period from their
regularization.

Termination due to union security clause

PICOP Resources, Inc. (PRI) vs. Anacleto Taneca et. al, G.R. No. 160828, 09 August 2010

Issue: Whether there was just cause to terminate the employment of respondents pursuant
to the Union Security Clause of the CBA.

Ruling: NO. In validly terminating the employment of an employee by enforcing the union
security clause, the employer needs to determine and prove that: (1) the union security
clause is applicable; (2) the union is requesting for the enforcement of the union security
provision in the CBA; and (3) there is sufficient evidence to support the decision of the
union to expel the employee from the union.
 As to the first requisite, there is no question that the CBA included a union security clause,
specifically, a maintenance of membership. PRI, upon written request from the Union, can
terminate the employment of the employee who failed to maintain its good standing as a
union member. Secondly, it is likewise undisputed that NAMAPRI- SPFL (the collective
bargaining agent) demanded from PRI to terminate the employment of respondents due to
their acts of disloyalty to the Union. However, as to the third requisite, there is no sufficient
evidence to support the decision of PRI to terminate the employment of the respondents.
PRI alleged that they were terminated based on the alleged acts of disloyalty when they
signed an authorization for the Federation of Free Workers (FFW) to file a Petition for
Certification Election among all rank-and-file employees. However, the mere signing of the
authorization in support of the Petition for Certification Election before the freedom period,
is not sufficient ground to terminate the employment of respondents inasmuch as the
petition itself was actually filed during the freedom period. Strictly speaking, what is
prohibited is the filing of a petition for certification election outside the 60-day freedom
period. This is not the situation in this case. If at all, the signing of the authorization to file
was merely preparatory to the filing of the petition for certification election, or an exercise of
respondents right to self-organization. Nothing in the records would show that
respondents failed to maintain their membership in good standing in the Union.
Respondents did not resign or withdraw their membership from the Union to which they
belong. Respondents continued to pay their union dues and never joined the FFW.

2.4 Signing bonus

Caltex Refinery, supra. 279 SCRA 218

3. Signing and ratification

ALU vs. Ferrer-Calleja, 173 SCRA 178

4. Effect:

4.1 With respect to successor-employer

E. Razon vs. Secretary of Labor, 222 SCRA 1

4.2 With respect to a change in exclusive bargaining agent - Substitutionary Doctrine

Benguet Consolidated vs. BCI Ees Union, 23 SCRA 465

5. Procedure in registration of CBA

Art. 231, LC; B5 R9 S1, IRR; DO 9, Rule XVI, Secs. 1-5

6. Scope of the agreement; who may avail of benefits -

Natl. Brewers and Allied Industries Labor Union vs. San Miguel Brewery
ISSUE: Whether petitioner, as the appropriate collective bargaining unit, may compel the payment of
union agency fee [as a form of union security] to non-members who also benefits from the collective
bargaining agreement.
RULING: No. It is true, as the union claims, that whatever benefits the majority union obtains from the
employer accrue to its members as well as to non-members. But this alone does not justify the collection
of agency fee from non-members. For the benefits of a collective bargaining agreement are extended to
all employees regardless of their membership in the union because to withhold the same from the
nonmembers would be to discriminate against them.
The basic principle underlying the decision in the case of General Motors Corp., 130 NLRB 481 equally
applies here, namely, that where the parties are not free to require of employees membership in a union
as a condition of employment, neither can they require a lesser form of union security. "For one cannot
waive a right he does not have."
For although a closed-shop agreement may validly be entered into under Section 4(a) (4) of the Industrial
Peace Act, We held that the same cannot be made to apply to employees who, like the employees in this
case, are already in the service and are members of another union. Hence, if a closed shop agreement
cannot be applied to these employees, neither may an agency fee, as a lesser form of union security, be
imposed upon them.

New Pacific Timber vs. NLRC, 328 SCRA 404 [2000]

Issue: Whether the rank and file employees hired after the term of the CBA, considering their subsequent
membership in the bargaining unit, are parties to the agreement and may claim benefits thereunder.

Ruling: Yes. When a CBA is entered into by the union representing the employees and the employer,
even the non-union members are entitled to the benefits of the contract. A laborer can claim benefits from
a CBA entered into the company and the union of which he is a member at the time of the conclusion of
the agreement even after he has resigned from said union. Therefore, the benefits under the CBA should
be extended to those who only became such after it expired; to exclude them would constitute undue
discrimination.

7. Duration of the CBA (Art. 253-A)

7.1 Economic provisions of the CBA: 3 years

7.2 Representation question: 5 years

- contract bar rule, DO 9 Rule XVI, Sec. 4

May parties negotiate and agree to extend term of exclusive bargaining status of
majority union?
FVC Labor Union Phil Transport and General Workers Org. (FVCLU-PTGWO) vs Sama-
samang Nagkakaisang Manggagawa sa FVC-Solidarity of Independent and General Labor
Organization (SANAMA-FVC-SIGLO), GR 176249, 27 Nov 2009.

FVC Labor Union-Philippine Transport and General Workers Organization (FVCLU-

PTGWO) vs. Sama-Samang Nagkakaisang Manggagawa sa FVC-Solidarity of
Independent and General Labor Organizations (SANAMA-FVC-SIGLO)
G.R. No. 176249. November 27, 2009.
BRION, J.:

Facts: On December 22, 1997, the petitioner FVCLU-PTGWO the recognized bargaining
agent of the rank-and-file employees of the FVC Philippines, Incorporated (company)
signed a five-year collective bargaining agreement (CBA) with the company. The five-year
CBA period was from February 1, 1998 to January 30, 2003. At the end of the 3rd year of
the five-year term and pursuant to the CBA, FVCLU-PTGWO and the company entered into
the renegotiation of the CBA and modified, among other provisions, the CBAs duration.

Issue: Whether the amended or extended term of the CBA on the exclusive representation
status of the collective bargaining agent and the right of another union to ask for
certification as exclusive bargaining agent is affected?

Held: No. FVCLU-PTGWO has taken the view that its exclusive representation status
should fully be in step with the term of the CBA and that this status can be challenged only
within 60 days before the expiration of this term. Thus, when the term of the CBA was
extended, its exclusive bargaining status was similarly extended so that the freedom period
for the filing of a petition for certification election should be counted back from the
expiration of the amended CBA term.

The Court hold this FVCLU-PTGWO position to be correct, but only with respect to the
original five-year term of the CBA which, by law, is also the effective period of the unions
 exclusive bargaining representation status. While the parties may agree to extend the
CBAs original five-year term together with all other CBA provisions, any such amendment
or term in excess of five years will not carry with it a change in the unions exclusive
collective bargaining status. By express provision of the above-quoted Article 253-A, the
exclusive bargaining status cannot go beyond five years and the representation status is a
legal matter not for the workplace parties to agree upon. In other words, despite an
agreement for a CBA with a life of more than five years, either as an original provision or by
amendment, the bargaining unions exclusive bargaining status is effective only for five
years and can be challenged within sixty (60) days prior to the expiration of the CBAs first
five years.

7.3 Retroactivity

Union of Filipro Employees vs. NLRC, 23 SCRA 465

Manila Electric Company vs. Quisumbing, 302 SCRA 173 (1999)

Manila Electric Company vs. Quisumbing, 326 SCRA 172 [2000]

Manila Electric Company vs. Quisumbing, 326 SCRA 172 [February 22, 2000]

ISSUE: When should the arbitral award should retroact? - from the period immediately
following the last day of the expired CBA

RULING: In general, a CBA negotiated within six months after the expiration of the existing
CBA retroacts to the day immediately following such date and if agreed thereafter, the
effectivity depends on the agreement of the parties. On the other hand, the law is silent
as to the retroactivity of a CBA arbitral award or that granted not by virtue of the mutual
agreement of the parties but by intervention of the government. Despite the silence of
the law, the Court rules herein that CBA arbitral awards granted after six months from
the expiration of the last CBA shall retroact to such time agreed upon by both employer
and the employees or their union. Absent such an agreement as to retroactivity, the
award shall retroact to the first day after the six-month period following the expiration of
the last day of the CBA should there be one. In the absence of a CBA, the Secretarys
determination of the date of retroactivity as part of his discretionary powers over arbitral
awards shall control.

Court considers the letter of petitioners Chairman of the Board and its President addressed
to their stockholders, which states that the CBA for the rank-and-file employees
covering the period December 1, 1995 to November 30, 1997 is still with the Supreme
Court, as indicative of petitioners recognition that the CBA award covers the said
period. Earlier, petitioners negotiating panel transmitted to the Union a copy of its
proposed CBA covering the same period inclusive. In addition, petitioner does not
dispute the allegation that in the past CBA arbitral awards, the Secretary granted
retroactivity commencing from the period immediately following the last day of the
expired CBA. Thus, by petitioners own actions, the Court sees no reason to retroact the
subject CBA awards to a different date.