Grievance Machinery and Arbitration Flashcards
(35 cards)
What is a Grievance?
It is “any question by either the employer or union regarding the interpretation or application of the collective bargaining agreement or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies.
What are Personnel Policies?
They deal with matters affecting efficiency and well being of employees and include among others the procedures in the administration of wages, benefits, promotions, transfer and other company personnel movements which usually not spelled out in a collective bargaining agreement.
What is the effect of a CBA which does not contain a grievance machinery?
A CBA without grievance machinery will not be registered with the DOLE. It is a “must” provision required of all CBA’s.
What is the effect of by-passing the grievance machinery?
All grievance arising from implementation or interpretation of collective bargaining agreement and/or interpretation and implementation and enforcement of company personnel policies are compulsorily subject to the grievance machinery. Grievance procedure provided in the CBA should be adhered by the parties. Refusal or failure to do so is an unfair labor practice because the grievance procedure is part of the continuous process of collective bargaining.
Can an aggrieved immediately resort to the courts?
No. Before an aggrieved employee may resort to the courts to enforce individual rights under a bargaining contract, the employee must exhaust all the remedies available to him in the contract. And a court should not entertain any complaint by the aggrieved employee until proper use has been made of the contract grievance procedure agreed upon by the employer and the bargaining representative.
May the grievance be brought to voluntary arbitration without passing through the grievance procedure under the CBA?
Yes. In view of the State policy to encourage voluntary arbitration of all other labor management disputes, it is submitted that a grievance may be brought directly to voluntary arbitration without passing through the grievance machinery.
What is the Wiley Doctrine?
It means a duty to arbitrate arising from a collective bargaining agreement survives the employer’s ceasing to do business as a separate entity after its merger with a substantially large corporation so as to be binding on the larger corporation, where relevant similarity and continuity of operations across the change in ownership as evidenced by the wholesale transfer of the smaller corporation’s employees to the larger corporation’s plant.
But a duty to arbitrate arising from collective bargaining agreement does not survive in every case in which the ownership or corporate structure of an enterprise is changed. It does not survive where there is lack of any substantial continuity of identity in the business enterprise before and after a change, or where the union abandons its right to arbitration by failing to make its claims known.
What is the procedure in handling grievance?
In the absence of a specific provision in the collective bargaining agreement or existing company practice prescribing for the procedures in handling grievance, the following shall apply:
a) An employee shall present his grievance or complaint orally or in writing to the shop steward;
b) If the grievance is valid, the shop steward shall immediately bring the complaint to the employees immediate supervisor. The Shop Steward, the employee and his immediate supervisor shall exert efforts to settle the grievance at their level;
c) If no settlement is reached, the grievance shall be referred to the grievance committee which shall have 10 days to decide;
What is Voluntary Arbitration?
It is a contractual proceeding whereby parties to the dispute or controversy, in order to obtain a speedy and inexpensive final disposition of the matter involved, select a judge of their own choice and by consent, submit their controversy to him for determination.
When Voluntary Arbitration is resorted to?
When the grievance machinery remains unresolved, either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration.
Distinguish the nature of Voluntary Arbitration and Compulsory Arbitration.
In Voluntary Arbitration, the resolution of the dispute is arrived at by resort to a disinterested third party whose decision is final and binding to the parties, but in Compulsory Arbitration, such a third party is normally appointed by the government. In Philippine context, the “judge” in Voluntary Arbitration is called arbitrator while that in compulsory arbitration is a labor arbiter.
Explain Voluntary Arbitration as a private judicial system.
The management and labor select their own judges and fixes their own rules of procedure. A voluntary arbitrator “is not a public tribunal imposed upon by the parties by a superior authority which the parties are obliged to accept. He has no general character to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties.
Explain Voluntary Arbitration as a “Master Procedure.”
It is called “master procedure” in the sense that any and all kinds of labor disputes may be submitted to, settled and resolved through voluntary arbitration, if the parties so desire. As a matter of procedure, voluntary arbitration takes precedence over other dispute settlement devices.
Is Voluntary Arbitration really voluntary?
Yes, because the parties themselves choose the arbitrator and define the issues submitted to him.
But submission to him of the issues named in Article 274 is required by law. Because of this requirement, the DOLE Committee that drafted the Labor Code called it “mandatory voluntary arbitration.
What is the Jurisdiction of Voluntary Arbitrator and panel of Voluntary Arbitrator?
It has original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies.
Are violations of CBA constitute ULP?
No more. Only violations of the CBA which are gross in character are treated as ULP. Violations of the CBA are now resolved as grievances under the CBA.
When a violation of the CBA is considered gross?
It means flagrant and/or malicious refusal to comply with the economic provisions of such agreement.
What shall the Commission and Regional Offices do if the issue is under the jurisdiction of the Voluntary Arbitrators?
It shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator and panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement.
When Voluntary Arbitrators have jurisdiction over termination disputes?
Employment termination disputes arising from CBA and company personnel implementation and are cognizable by the voluntary arbitration and not by the labor arbiter. Such termination cases, if filed with the labor arbiter is to be dismissed for lack of jurisdiction and re-filed to the concerned NCMB Regional Branch for appropriate action. The parties will proceed to select a voluntary arbitrator (or a panel of voluntary arbitrator) based on the procedure outlined in their CBA. But this referral by the labor arbiter presupposes that the parties had agreed in unequivocal language that the termination dispute shall be submitted to grievance machinery and voluntary arbitration. Without such explicit agreement, the labor arbiter may hear and decide the case.
When the Voluntary Arbitrators or panel of Voluntary Arbitrators have jurisdiction over money claim?
Money claims arising from CBA because it involves an issue arising from the interpretation or implementation of a provision of a Collective Bargaining Agreement.
Can a voluntary arbitrator award backwages?
Yes. Voluntary arbitrator may award backwages upon a finding of illegal dismissal, even though the issue of entitlement thereto is not explicitly claimed in the Submission Agreement. Backwages, in general, are awarded on the ground of equity as a form of relief that restores the income lost by the terminated employee by reason of his illegal dismissal.
When a ULP case is said to be cognizable by the Labor Arbiter and the NLRC in its exercise of appellate jurisdiction?
When the allegations of the complaint would show prima facie the concurrence of two things, namely: (1) gross violation of the CBA and (2) the violations pertains to the economic provisions of the CBA.
When reference to the economic provisions of the CBA is not necessary element of a ULP?
When the employee in effect totally disregard the subsisting CBA. When the employer proceed to negotiate with a splinter union despite the existence of a valid CBA with the duly certified and exclusive bargaining agent, the former indubitably abandons its recognition of the latter and terminates the entire CBA. Total disregard of the CBA is more than gross violation of economic provisions.
Is the Union entitled to Moral Damages?
No. A union like a corporation is an artificial person that exist only in contemplation of law. it has no feelings, no emotions, no senses. Hence, it cannot experience physical suffering or mental anguish that translates to moral damages.
