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Pre-Week Guide on Labor Law 2006 Bar Examinations Prof. Joselito Guianan Chan118. What is multi-employer bargaining?Multi-employer bargaining involves negotiation between and among several certifiedlabor unions and employers.Any legitimate labor unions and employers may agree in writing to come together for thepurpose of collective bargaining, provided:(a) only legitimate labor unions which are incumbent exclusive bargaining agents mayparticipate and negotiate in multi-employer bargaining;(b) only employers with counterpart legitimate labor unions which are incumbentbargaining agents may participate and negotiate in multi-employer bargaining; and(c) only those legitimate labor unions which pertain to employer units which consent tomulti-employer bargaining may participate in multi-employer bargaining. (Section 5,Rule XVI, Book V, Ibid.).119. What is meant by “duty to bargain collectively” when there has yet been a CBA?Article 251 contemplates a situation where there is yet no CBA or other voluntaryarrangements or modes providing for a more expeditious manner of collective bargaining.Accordingly, the law itself mandates that the procedures in collective bargaining laid down in theLabor Code, specifically Article 250 thereof, among other pertinent provisions, should befollowed by the employer and the representatives of the employees in their collective bargainingefforts. Essentially, the duty to bargain in this situation still requires the performance of theobligation by the employer and the union to meet, convene and confer for collective bargainingpurposes. The basic requisites of collective bargaining such as the existence of employeremployeerelationship, majority status of the bargaining union and the demand to negotiate anagreement, should likewise be fully satisfied before such negotiations may be validly held. Theadvantage of negotiating a CBA for the first time lies in the fact that both parties are not restrictedor encumbered by any previous agreement on any of the issues that may be raised in the coursethereof. They are free to take positions on anything, without having to worry about possible pastagreements affecting the current ones for discussion.120. What is meant by “duty to bargain collectively” when there exists a CBA?When there is a collective bargaining agreement, the duty to bargain collectively shallmean that neither party shall terminate nor modify such agreement during its lifetime. However,either party can serve a written notice to terminate or modify the agreement at least sixty (60)days prior to its expiration date. It shall be the duty of both parties to keep the status quo and tocontinue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties.121. What are the mandatory requisites of publication, ratification and registration of theCBA?a. Posting of CBA.The general rule is that the CBA is required to be posted in two (2) conspicuous places inthe work premises, for a period of at least five (5) days prior to its ratification.In the case of multi-employer bargaining, two (2) signed copies of the CBA should beposted for at least five (5) days in two (2) conspicuous areas in each workplace of the employerunits concerned. Said CBA shall affect only those employees in the bargaining units who haveratified it. (Section 7, Rule XVI, Book V, Rules to Implement the Labor Code, as amended byDepartment Order No. 40-03, Series of 2003, [Feb. 17, 2003]).b. Posting is mandatory.This requirement on the posting of the CBA as above-described is considered amandatory requirement. Non-compliance therewith will render the CBA ineffective. (AssociatedTrade Unions [ATU] vs. Trajano, G. R. No. L-75321, June 20, 1988).c. Posting is responsibility of employer.46
Pre-Week Guide on Labor Law 2006 Bar Examinations Prof. Joselito Guianan ChanThe posting of copies of the CBA is the responsibility of the employer which can easilycomply with the requirement through a mere mechanical act. (Associated Labor Union [ALU] vs.Ferrer-Calleja, G. R. No. 77282, May 5, 1989).d. Ratification by majority of the members of the bargaining unit.The ratification of the CBA should be made not by the majority of the members of thebargaining union but by the majority of the members of the bargaining unit which is beingrepresented by the bargaining union in the negotiations.e. Registration of CBA.The CBA shall be registered with the Department of Labor and Employment inaccordance with the Rules to Implement the Labor Code, as amended in 2003. (Section 7, RuleXVI, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03,Series of 2003, [Feb. 17, 2003]).122. What is the consequence of refusal of party to negotiate the CBA?The refusal of the employer to bargain with the collective bargaining representative, byignoring all notices for negotiations and requests for counter-proposals so much so that the unionhad to resort to conciliation proceedings, may indicate bad faith. (Kiok Loy vs. NLRC, G. R. No.54334, Jan. 22, 1986, 141 SCRA 179).For refusing to send a counter-proposal to the union and to bargain anew on the economicterms of the CBA, the company commits an unfair labor practice act under Article 248 [g] of theLabor Code (violation of the duty bargain collectively). As held in General Milling Corporationvs. CA, [G. R. No. 146728, Feb. 11, 2004], the union lived up to this obligation when it presentedproposals for a new CBA to the management within three (3) years from the effectivity of theoriginal CBA. But the employer failed in its duty under Article 252. What it did was to devise aflimsy excuse, by questioning the existence of the union and the status of its membership toprevent any negotiation.According to Colegio De San Juan De Letran vs. Association of Employees andFaculty of Letran, [G.R. No. 141471, Sept. 18, 2000, 340 SCRA 587, 595], the management’srefusal to make a counter-proposal to the union’s proposal for CBA negotiation is an indication ofits bad faith. Where the employer did not even bother to submit an answer to the bargainingproposals of the union, there is a clear evasion of the duty to bargain collectively.123. What is the effect of the refusal of party to sign the CBA?A party to a fully-concluded CBA may be compelled to sign it, especially if said refusalto sign is the only remaining hitch to its being implemented. Such refusal is considered unfairlabor practice. (Roadway Express vs. General Teamster, 320 F 2d, 859).124. What is the effect if there is no meeting of the minds?In University of the Immaculate Concepcion, Inc. vs. The Hon. Secretary of Laborand Employment, [G. R. No. 146291, January 23, 2002], the petitioner presented to the union adraft of the CBA allegedly embodying all the terms and conditions agreed upon during theconciliation sessions held by the NCMB. Petitioner contended that the union was bound tocomply with the terms contained in the draft-CBA since said draft allegedly contains all the itemsalready agreed upon before the NCMB. The Supreme Court disagreed. In affirming the findingof the Court of Appeals that there was still no new CBA because the parties had not reached ameeting of the minds, the Supreme Court ratiocinated, thusly:“As in all other contracts, there must be clear indications that the partiesreached a meeting of the minds.“In this case, no CBA could be concluded because of what the unionperceived as illegal deductions from the 70% employees’ share in the tuition fee47
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