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Pre-Week Guide on Labor Law 2006 Bar Examinations Prof. Joselito Guianan Chanincrease from which the salary increases shall be charged. Also, the manner ofcomputing the net incremental proceeds was yet to be agreed upon by theparties.“Petitioner insisted that a new collective bargaining agreement wasconcluded through the conciliation proceeding before the NCMB on all issuesspecified in the notice of strike. Although it is true that the university and theunion may have reached an agreement on the issues raised during the collectivebargaining negotiations, still no agreement was concluded by them because,among other reasons, the DOLE Secretary, who assumed jurisdiction on January23, 1995 only was set to resolve the distribution of the salary increase of thecovered employees. The Court of Appeals found that ‘there are many items inthe draft-CBA that were not even mentioned in the minutes of the July 20, 1994conference.’“Considering the parties failed to reach an agreement regarding certainitems of the CBA, they still have the duty to negotiate a new collectivebargaining agreement in good faith, pursuant to the applicable provisions of theLabor Code.”125. Can a CBA be negotiated and concluded during suspension of operation?There is no legal basis to claim that a new CBA should not be entered into or thatcollective bargaining should not be conducted during the effectivity of a temporary suspension ofoperations which an employer can lawfully do under Article 286 of the Labor Code. In theabsence of any other information, the plain and natural presumption is that the employer wouldresume operations after six (6) months and, therefore, it follows that a new CBA will be neededto govern the employment relations of the parties, the old one having already expired.Consequently, it was held in San Pedro Hospital of Digos, Inc. vs. Secretary of Labor,[G. R. No. 104624, Oct. 11, 1996, 263 SCRA 98], that while the employer cannot be forced toabandon its suspension of operations even if said suspension be declared unjustified, illegal andinvalid, neither can the employer evade its obligation to bargain with the union, using thecessation of its business as reason therefor. For, as already indicated above, the employeremployeerelationship is merely suspended (and not terminated) for the duration of the temporarysuspension. Using the suspension as an excuse to evade the duty to bargain is further proof of itsillegality. It shows abuse of this option and bad faith on the part of the employer. And since itrefused to bargain without valid and sufficient cause, the DOLE Secretary, in the exercise of hispowers under Article 263 [i] of the Labor Code to decide and resolve labor disputes, properlygranted the wage increase and imposed the union shop provision.126. Can a CBA be negotiated and concluded in case of closure of business?An employer which has already decided to close shop cannot be compelled to enter into anew CBA. The Supreme Court said in the same case of San Pedro Hospital [supra] that it cannotimpose upon the employer the directive to enter into a new CBA with the union for the verysimple reason that to do so would be to compel the employer to continue its business when it hadalready decided to close shop, and that would be judicial tyranny on its part.127. Can a CBA proposed by the union be imposed lock, stock and barrel on employer whorefused to negotiate a CBA?The Supreme Court, following the provision of Article 253 which imposes on bothparties to keep the status quo and to continue in full force and effect the terms and conditions ofthe existing agreement during the 60-day period [prior to its expiration date] and/or until a newagreement is reached by the parties, has lately consistently ruled that the CBA, as proposed bythe union, may be unilaterally imposed on the employer in the event the latter fails to dischargeits duty to bargain collectively by refusing to make any counter-proposals to the proposals of theunion or engaging in bad faith bargaining.Article 253 basically mandates the parties to keep the status quo while they are still in theprocess of working out their respective proposals and counter proposals. The general rule is that48
Pre-Week Guide on Labor Law 2006 Bar Examinations Prof. Joselito Guianan Chanwhen a CBA already exists, its provision shall continue to govern the relationship between theparties until a new one is agreed upon. The rule necessarily presupposes that all other things areequal. That is, that neither party is guilty of bad faith. However, when one of the parties abusesthis grace period by purposely delaying the bargaining process, a departure from the general ruleis warranted.Under this situation, the employer which violates the duty to bargain collectively, losesits statutory right to negotiate or renegotiate the terms and conditions of the draft CBA proposedby the union. Hence, the proposals of the union may be adopted as the CBA and, consequently,imposed on the employer, lock, stock and barrel.General Milling Corporation vs. CA.In General Milling Corporation vs. CA, [G. R. No. 146728, Feb. 11, 2004], theSupreme Court imposed on the employer the draft CBA proposed by the union for two yearscommencing from the expiration of the original CBA. This was because of the employer’srefusal to counter-propose to the union’s proposals which constitutes unfair labor practice underArticle 248 [g] of the Labor Code.Kiok Loy vs. NLRC.In the case of Kiok Loy vs. NLRC, [No. L-54334, January 22, 1986, 141 SCRA 179,188], the Supreme Court found that petitioner therein, Sweden Ice Cream Plant, refused to submitany counter proposal to the CBA proposed by its employees’ certified bargaining agent. It ruledthat the former had thereby lost its right to bargain the terms and conditions of the CBA. Thus,the High Court did not hesitate to impose on the erring company the CBA proposed by itsemployees’ union - lock, stock and barrel.Divine Word University of Tacloban vs. Secretary of Labor and Employment.Likewise, in Divine Word University of Tacloban vs. Secretary of Labor andEmployment, [213 SCRA 759, September 11, 1992], petitioner therein refused to perform itsduty to bargain collectively. Thus, the High Tribunal upheld the unilateral imposition on theuniversity of the CBA proposed by the Divine Word University Employees Union.Distinction between the aforesaid cases, disregarded.As strictly distinguished from the facts of General Milling [supra], there was no preexistingCBA between the parties in Kiok Loy and Divine Word University of Tacloban.Nonetheless, the Supreme Court deemed it proper to apply in General Milling the rationale of thedoctrine in the said two cases. To rule otherwise, according to the Court, would be to allowGeneral Milling to have its cake and eat it, too.128. What is “freedom period”?“Freedom period” is the last sixty (60) days of the lifetime of a collective bargainingagreement immediately prior to its expiration It is so called because it is the only time when thelaw allows the parties to serve notice to terminate, alter or modify the existing agreement. It isalso the time when the majority status of the bargaining union or agent may be challenged byanother union by filing appropriate petition for certification election.129. What is “automatic renewal clause”?“Automatic renewal clause” means that at the expiration of the freedom period, theemployer shall continue to recognize the majority status of the incumbent bargaining agent whereno petition for certification election is filed.130. What is the effect of CBA renewal or registration before or during 60-day period?The representation case shall not be adversely affected by a CBA registered before orduring the last sixty (60) days of a subsisting agreement or during the pendency of the49
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