Bargaining to the Point of Deadlock or Impasse 1. Over a mandatory subject - party may insist on bargaining and will not be construed as bargaining ‘in bad faith Reason: Duty to bargain requires meeting and convening on the terms and conditions of ‘employment but does not require assent to the other party's proposals. 2, Over a non-mandatory subject - party may Not insist:on bargaining to the point of impasse, otherwise, he will be construed as bargaining in bad faith, Ilustration: The employer's insistence that the union should change its negotiator before bargaining can proceed to the employees’ wage and benefits is an. instance of bad_faith bargaining because ‘the composition’ of the negotiating panel.is not a mandatory subject: of bargaining. / f Hence; if Party Ainsists on first settlit@*a‘hon- mandatory subject-before tackling.a mandatory” subject, Party B riajcomplain that, Party-A’s- Posture is just an excuse'to avoid bargaining on the mandatory, essential Subjects of bargaining: thus, Party B can “charge that Parly iA is bargaining in bad faithoris'evading bargaining on terms and condition’ of employment = jin shor, Party Ais commiting ULP.» £3 }/ &. Se yo WET ot u Note: What the rule forbidsis the posture of making settlement of @ non‘mandatory. subject a pre-condition to the discussion.or settlement of a Mandatory subject. EY easy Deadlock is synonymous™.with impasse or a standstill which presupposés reasonable’ effort in good faith bargaining but despite noble intentions does not conclude an agreement between the. Parties (Divine Word University -of Tacloban’ v. Secretary of Labor and Employment,’ 91916, September 11, 1992). Remedies In case of a deadlock in the renegotiation of the CBA 7 The parties may exercise the following: (NASL) 1. Call upon the National Conciliation and Mediation Board (NCMB) to intervene for the Purpose of conducting conciliation preventive mediation; 2 Refer the matter for voluntary Arbitration or compulsory arbitration; or 3. Declare a Strike or Lockout upon compliance wih the legal requirements. This is the remedy of last resort 123 SAM ReDA COLLEGE OF Law 2026 CenTRatizeO BAR OPERATIONS ARTICLE 264: DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A COLLECTIVE BARGAINING AGREEMENT General Rule: When theré is an existing CBA, the duty to bargain collectively shall also mean ‘that neither party: stall terminate nor modify such agreement during its lifetime. It is the duty of both parties to: 1. Keep the status quo: and 2. To continue in the full force and effect the terms and conditions of the existing CBA. Exception: During the 60-day period prior to its expiration, upon service of a written notice of a party's intention to terminate or modify the same, a party may choose to terminate or modify the non- representational aspect of the CBA only after the expiration of CBA of fixed duration. Automatic Renewal Clause >.” E22 ETHECBA shall remain- effective’ and enforceable “2¥v6ii aftér the expiration of the period fixed by the Cpalties‘as.long as no new agreement is reached by _. them (LABOR CODE, Art: 263). Reason: To avoid or prevent a situation where no collective bargaining agreement at all would govern between the employer company and its employees. Note:The Automatic Renewal Pertains only to the eConomic’ provisions ‘of the CBA and does not include representational aspect of the CBA (PICOP Resources, “Inc.. v.: Dequilla, G.R. No. 172666, - December 7, 2011); ee POE ons a \CCFreedom Period isthe 60-day period immediately Pfeceding the \expiration of the representation “period of five.(5) years in the CBA. What maybe done during the’ 60-day freedom ~ “period (DTC) - - 14°A labor. union may Disaffiliate from the mother ~CBA.- Hence, may be ~sfenegotiated not later than three years. a SNe OE Note! While the. parties may agree to extend the CBA'S original five-year term despite an agreement for a-CBA with-alife-of more than five years, the bargaining union's “exclusive bargaining status is effective only for five years and can be challenged within sixty (60)-days prior to the expiration of the CBA's ‘first five years (FVCLU-PTGWO v. SANAMA-FVC-SIGLO, GR. No. 176249, November 27, 2009). SAN BEDA CouLEGE OF Law 2016 CENTRALIZED BAR Operations 129Last 60 days of the CBA’s 5% year of the representational aspect “notice period” for renegotiation of. an ‘expiring CBA; Refers to modifying or fenegotiating the CBA provisions other than epresentational, also called “economic provisions” Economic event Political event between rival unions and voters. ER is not a part ER is a pany Economic Provisions may include: 1. Wages; 2. Family planning; 3. Effectivity of the agreement; or; 4. Other terms and conditions of empio SA ‘ yyment, Non-Economic Provisions may include: 1. Coverage of the bargaining unit; 2. Union Security claisesy7 3. Management prerdgatives rights or fesponsibilities of employees; 1s 4. Grievance machinery-and-voluntary arbit and Se 5. No strike no lock-out provision. ws AM Effectivity and Retroactivity of other-Economic Provisions of the CBA “> y 1. If CBA is the very first for the bargaining unit, the parties have to decide the CBA's effectivity date; Ee - ‘Those made within six moinths after the date of expiry of the CBA are sUbject to automatic fetroaction to the day immediately, following such date of expiry; Example: CBA expired on December 31. New CBA concluded on March 31. Tho effectivity date is January 1; and ! Those not made within six (6) monthis,. the parties may agree on the date of retroaction This rule applies only if there is an existing agreement. If there is no existing agreement, there is no retroactive effect because the date agreed upon shall be the start of the period of agreement, : Art, 265 on retroaction does not apply if the provisions were imposed by the Secretory ot aber by virtue of arbitration. It applies only if the agreement was voluntarily made by the parties (St. Luke's Medical Center, Inc. v. Hon. Torres, G.R. No, 99395, June 29, 1993) ‘Sax BEOA COLLEGE OF Law 230 2016 CetsrnaLizeD BAR OPceATIONS Parties may agree on the suspension of their CBA for a certain period. Art, 268 of the Labor Code has a two-fold purpose: (1)Promote industrial stability and predictabiity; and (2)assign specific timetables wherein negotiations become a matter of rights and requirement. Nothing therein prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same (Rivera v. Hon. Espiritu, G.R. No. 135547, January 23, 2002). The notice of intention to terminate, amend or alter the provisions of the CBA shall be filed within the 60-day period, immediately prior to the ‘expiration of the CBA, ARTICLE 266: INJUNCTION PROHIBITED General’ Rule:: No temporaryy or permanent injunction oF restraining order in-any case involving ‘Sf Gfowing out of labor disputes shall be issued by ‘any court or other entity. Excoption: ‘As otherwise Provided in Arts, 225 (Powers of the Gommission/NLRC) and 279 (Prohibited Activities) of this Code, Reason: Injufiction “contradicts the constitutional Preference for Voluntary modes of dispute settlement." ~The following ~ are . authorized to injunctions or restraining orders 4. NLRC (LABOR CODE, Art. 225); 52 ;President — in case of labor dispute in industries whicl ‘h are indispensable to national interest (LABOR CODE, Art. 278); and 3. "Secretary In case of labor dispute in industries which are indispensable to national interest, the Secretary may assume jurisdiction over the dispute or certify the same to the Commission for compulsory arbitration. Such ‘assumption or certification ‘shall have the effect of automatically enjoining the intended of Impending strike. if one has already taken Place, all striking or locked out employees shall immediately return to work and the employer shall immediately re-admit’ employees and resume operations, Jurisdiction to Issue Injunctions General Rule: Regular courts are without authority to issue injunction orders in cases involving of criginating from labor disputes even ifthe complaint was filed by non-striking employees and the employer was made a respondent. To hold otherwise is to sanction spliting of jurisdiction which is obnoxious to the orderly administration ofyustice (Ando v. Campo, G.R. No. 184007, February 16, 2011). y Exception: A regular court may issue injunction to protect the interest of neutral employers in common situs picketing, provided the injunction does not in ‘any way curtail the right of the union to strike and/or picket (Republic Flour Mill Workers Association v. Reyes, G.R. No. L-21378, November 28, 1966) Note: In cases of strikes/picketing, third parties or innocent bystanders may secure a court (regular court) injunction to protect their rights (PAFLU v. Cloribel, G.R. No. L-25878, March 28, 1969) (See notes under Arts. 277 and 278). ARTICLE 267: EXCLUSIVE BARGAINING REPRESENTATION AND. WORKER'S PARTICIPATION. IN POLICY AND. DECISION: MAKING ; 8 Worker's Participation as the réal objective Ait. 267 of the Labor: Code deals with crucial concept of employee participation, The law, while, | Promoting collective bargaining, really aims at. employee participation. in policy”. and decision making. i Collective bargaining is just one of the forms of employee participation, and it is incorrect to say that the device which secures industrial democracy is collective bargaining and no other. That is why Art, 267, second sentence, reserves the rightof an individual employee or group of employees (unionized or un-unionized, or inside or outside a Union) to present grievances to their employers anytime. Extent of the Workers’ Right to Participate In Policy and Decision-Making Processes Such right refers only to participation im grievance Procedures and voluntary modes of setting disputes and not to formulation of corporate rograms and policies. Note: An employer may solicit questions, Suggestions and complaints from employees even ‘hough the employees are represented by a union, Provided: 1. The collective bargaining representative executes an agreement waiving the right to be Present on any occasion when employee Grievances are being adjusted by the employer; and 2. Employer acts strictly within the terms of this waiver agreement, One-Union, One-Company Policy provides that {he proliferation of unions in an employer unit is ‘scouraged as a mailer of policy unless Inere are compelling reasons which would deny @ certain class of employees the right to self-organization for purposes of collective bargaining (Phillranco Service Enterprises v. Bureau of Labor Relations, G.R. No. 85343, June 28, 1989). 1. Supervisory employees who are allowed to form their own unions apart from the rank-and- file employees; and 2. The policy should yield to the right of employees to form unions for purposes not contrary to law, self-organization and to enter into collective bargaining negotiations. a. Two companies cannot be treated into a single bargaining - unit even. if their businesses are related. LS Subsidiaries or corporations formed out of former. divisions of a mother company “following a reorganization,may constitute a separate bargaining'uni _Labor, Management Council deals with the employer. on:-matters: affecting the employee's rights, benefits and welfare. 1. Promote gainful.employment; 2." Improve working conditions; and 3. Achieve increased productivity (R.A. 6971). ‘An exception to’ the exclusiveness of the representative role of labor organization is individual grievance The labor organization is a representative of the * collective employees, but this fact alone does not mean that an employee can act only through the representative. “An -individual employee has a Personal right to handle his own grievances unassisted, by’“any ‘representative (2 AZUCENA, supra at. 432). ARTICLE 268: PETITION FOR CERTIFICATION ELECTION ARTICLE 269: PETITIONS IN UNORGANIZED. ESTABLISHMENTS, ARTICLE 270: WHEN AN EMPLOYER MAY FILE PETITION Bargaining Unit is a group of employees of a given employer, comprised of all or less than all the entire body of the employees, which, consistent with equity to the employer, indicate to be best suited to serve the reciprocal righis. and duties of parties under the col ini the partes ollective bargaining provision Exclusive Bargaining Representative mea legitimate labor organization duly. rocsoriecsee. SAN BEDA CouLEGE OF Law 2016 CENTRALIZED Bar Operations 131