July 28 Labor Arbitration Lecture Notes

Robert Frost poem

-was a poet lauriat - he was asked during state functions to compose poems, including that of JFK

---so around 30 minutes about Culture…

*"Men of culture would never be irrelevant in society"

What has this to do, at all, with our class in Labor Law?

When you become lawyers, you have to be "cultured".

Obsequitious 

DUTY TO BARGAIN

-important: almost always, dito nagsisimula ung labor dispute

-start of the process where the parties would finally end up with Voluntary Arbitration

-if you examine the entire relationship (EER) and attempt to divide that relationship into portions, you can start initially with bargaining, then conciliation, mediation, grievance procedure then finally voluntary arbitration

-start: bargaining in GF

-end: VA

SAMAHAN SA PERMEX V. SOLE

F: Certification Election was conducted, wherein 61% of the employees voted "no union" (Feb 1991). However, SMP wrote to PERMEX to be recognized as the SBR, and PERMEX complied with it. Employees contested this, even saying they were coerced or misled into signing a document which turned out to be in support of SMP as its CB Agent. CBA was entered into by SMP and PERMEX.

H: Since there is a question as to the majority status of the recognized BR, the CBA is not effective.

-Also, improper for the ER to voluntarily recognize SMP. Should have a CE to determine which Union all the employees recognize as its EBR.

-found it dubious that SMP was recognized as EBR by the ER even after 10 months after the CE wherein "No union" won

*on the 10 month period: if it was longer, would it change anything? No. the employer should not have voluntarily recognized SMP, but should have held a CE to determine the sentiments of the employees as to who they want to represent them - now, direct recognition by the ER is prohibited

ALU V. FERRER-CALLEJA

F: ALU asked to be the EBR of the employees, and ER wrote back asking that ALU show proof of majority status. 2 days after, ALU and the ER entered into CBA negotiations. 2 other labor unions questioned the status of ALU as the majority representative of the employees, petitioned for a Certification Election.

H: For there to be collective bargaining, 3 things should first be shown to exist (Kiok loy jurisdictional requirements), one of which is proof of majority representation which in this case does not exist or was not shown to exist.

-what is wrong with the ER voluntarily recognizing ALU as the sole bargaining rep? CHA: because the status of ALU as the majority representative of the employees of the company is questionable

What factual circumstances show this:

• There are at least 2 other union in the company
• The 2 unions conducted a strike

WHAT IS WRONG ACCORDING TO SIR: the ER knew that there was an issue as to the majority status of the Union. Even so, it voluntarily recognized ALU as the EBR of the employees. The circumstances should have put the ER on notice of the issue of majority status of the Union.

"there was precipitate haste…"

"unusual promptitude"

"an apparent and suspicious hurry"

Show BF on the part of ER

Precipitate: sudden, too soon….

STANDARD CHARTERED BANK EMPLOYEES UNION V. CONFESSOR

F: Surface bargaining v. blue sky-bargaining

H: NO ULP in either side

-Duty to bargain does not compel either party to agree to a proposal or to require the making of a concession

SMB v. NLRC (1999)

F: in an attempt to streamline its operations, SMC laid off some of its employess. The employees and SMC underwent the grievance procedure provided in the CBA. Arguing that there was a deadlock in the grievance procedure, the Union filed a notice for strike.

H: No deadlock yet because there was still a grievance procedure

CSR: corporate social responsibility

-in SMC's case, as part of its CSR even before it became a buzzword, before dismissing its employees, SMC should first find a job among its units (when all that is required from the ER when it finds that the services of an EE is redundant is TO GIVE 30-DAY notice to affected EE and DOLE).

-it's a precedent-setting case:

• SC agreed with the ER that NLRC has positive legal duty to stop an ongoing strike/prevent an incoming strike when doing so is violative of a law/CBA

-strike:

• Deadlock in CBA
• Deadlock based in ULP

-if not strikeable, ER would file a motion to dismiss the notice of strike! (as was done in this case) But before NLRC refused to do so, saying its not their duty to prevent a threatened strike or stop an ongoing strike

• However, there is no clear express law providing that power. What NLRC/NCMB does is to convert the notice to strike into a Preventive Mediation Case, considered the notice to strike as not having been filed at all (which does not have any affect at all to Unions, who would still strike since there is no clear order from NLRC/NCMB that the strike is illegal)
• University of San Agustin: SC penalized NCBM/NLRC for not stopping an illegal strike!

SAMAHAN SA TOP FORM v. NLRC (1998)

F: During the CBA negotiations, provisions mandating ACROSS THE BOARD implementation of wage orders was not included in the CBA, with the ER promising to incorporate it in the CBA. When Wage Orders were issued, the Union insisted on the Across the Board implementation of the wage, in accordance with the minutes of the CBA negotiations. ER refused to comply, saying it is not included in the CBA.

H: Only provisions included in the CBA should be interpreted and implemented - so minutes of the CBA negotiations not binding upon the ER

-No BF bargaining:

1. ER was willing to negotiate - and did negotiate!
2. CBA was entered into
3. No BF to insist on a position to the point of stalemate - not required to give concessions and to agree to a proposal

-it is one of management's negotiation strategies to tentatively agree to the demands of the union

-It is the union's duty to insist that the said "promise" be included in the CBA

...Whenever discussed: warn class not to be misled by some of the things the SC said:

• Minutes of the meeting walang kabuluhan unless/until find print in the CBA: here, the labor union failed to give evidence that the employer agreed on the implementation of the across the board wage increase. Union should have made that said agreement a part of the actual part of the CBA. SO MAKE IT A POINT THAT AN IMPORTANT AGREEMENT REACHED DURING THE NEGOTIATIONS BE INCLUDED IN THE CBA!!!