PLJ Volume 49 Number 5 - 06 - Vicente A. Cruz, JR - Union Security Clauses in The Collective Bargaining Agreements PDF
PLJ Volume 49 Number 5 - 06 - Vicente A. Cruz, JR - Union Security Clauses in The Collective Bargaining Agreements PDF
II.
0/
is one
Ibid.,
albid.,
4Ibid.,
5 Ibid.,
6 Ibid.,
.Ibid.,
2
CODE, art.
art. 249.
art.
art.
art.
art.
arts.
247.
248(a).
247(c).
112(b).
247(e) .
237 & 238.
III.
One of the means by which a union seeks and gains strength and
stability is through contractual arrangements with employers whereby union
membership is made a condition of employment for each worker included
within the bargaining unit. These shop arrangement provisions, which
are designed to establish union security vis-a-vis the employ;ers, other
labor unions, and the workers or laborers themselves, take many different
forms, tr.e most extreme of which is the so-called closed shop, and the
variants being the union shop, maintenance of membership, agency shop,
and check-off. Some of the modifications of the more common variants
are the closed shop with a closed union, closed shop with an open union,
percentage union shop, modified union shop, preferential hiring arrangement, closed shop or union shop, or maintenance of membership with an
escape clause.
8
9
The Court has also ruled that where a union security agreement is
by its own terms applicable only to new employees, it may not be applied to the disadvantage of employees who were already such at the time
the agreement was entered into. Likewise, old employees who are
members of a minority union are not obliged to join the majority contracting union.14 As regards old employees, however, who are not members of any labor organization at the time the Collective Bargaining Agreement takes effect, the Court ruled that this category of old employees may
be obliged to join the union, if there is a valid closed shop arrang~ment,
otherwise, their refusal would be justifiable basis for dismissal,15
Certain categories, too, of employees were statutorily excluded from
the coverage of union security clauses, namely, (1) supervisory personnel,
who cannot be compelled to join a union of rank-and-file employees under
their supervision,!6 and (2) the so-called "conscientious objectors," i.e.}
members of religious sects which prohibit their members from joining labor
unions, who, under Republic Act No. 3350, may not be compelled to
join a union even under a closed shop arrangement.11'
It may also be logically inferred from decided cases that an employer,
without serving advance notice or paying the required "mesada" and without any of the just causes under the Termination Pay Law, may valid1y
terminate the employment of an employee if such termination is pursuant to a validly existing union security management.18
In regard to check-off, which is also a union security arrangement,
the applicable rules were that it may be enforced, under the Minimum
Wage Law,!9 with the consent of the employer or by authority in writing
by the individual employees. Apropos of this, the Supreme Court said:
"when the union and the employer agree, the consent' of the employees is
immaterial. When the Employees duly authorize the check-off, the employer's consent is unnecessary and his recognition of the right is obliga14 Conrederated
Sons of Labor v. Anakan Lumber Co., G.R. No. L-12503,
April 29, 1960, 107 Phil. 915 (1960); Local 7, Press and Printing Free Workers (PFW)
v. Judge Tabigne, G.R. No. L-16093, November 29, 1%0, 110 Phil. 276 (1960); Freeman Shirt Mfg. Co., Inc. v. CIR, G.R. No. L-16561, January 28, 1961, 1 SeRA
353 (1961); San Carlos Milling Co., Inc. v. CIR, G.R. Nos. L-15463 and L-15723,
March 17, 1%1, 1 SCRA 734 (1961.); Talim Quarry Co .. Inc. v. Bartola, G.R. No.
L-15768, April 29, 1961, 1 SCRA 1301 (1961) among others.
15 Juat
v. CIR, Bulaklak Publications, G.R. No. L-20764, November 28, 1%5,
15 SCRA 391 (1965).
16 Rep. Act No. 875 (1953), sec. 3.
17 Rep. Act No. 875 (1953), sec. 4(a).
18 R. SANTOS,
REVIEWER
IN LABOR
ANDSOCIAL
LEGISLATION,
183 (1964); see Victorias
Milling Co. v. Victorias Manapla Workers Organization, G.R. No. L-I8467 a:ld
Victorias Manapla Workers Organization-PAFLU v. Court of Industrial Relations,
G.R. No. L-18470, both promulgated September 30, 1963, 9 SCRA 154 (1963).
19 Rep.
Act No. 602 (1951), sec. IOCb) (3).
tory."20 On this subject, too, the Supreme Court has ruled that even if
the check-off authority is irrevocable, its validity is coterminous only with
the membership in the union; it is good only as long as the employees
remain members of the union and are therefore required to pay dues.
When the employee ceases to be a union member, his obligation to pay
dues likewise ceases, hence, the check-off authorization likewise ends.21
The Agency Shop or Agency Fee clause was invalidated by the
Supreme Court, under the old law. The validity of this arrangement
whereby all the employees in the bargaining unit, whether union members or not, must pay the union a fixed fee to defray expenses incurred
while acting as their bargaining agent, was not recognized by the Supreme
Court. The Court said: "while it is true that whatever benefits the
majority union obtains from the employer accrue to its members, .as well
as the non-members, this alone does not justify the collection of fees
from non-members for the benefits of the Collective Bargaining Agreement are extended to all employees regardless of union membership, because to withhold the same from the non-members would be to discriminate
against them." Further, the Supreme Court pointed out: "when a union
bids to be the exclusive bargaining agent, it voluntarily assumes the
responsibility of representing all the employees in the appropriate bargaining unit. "22
This, then, was the state of law and jurisprudence on union security
arrangements prior to the effectivity of the Labor Code. Let us now
examine what changes had been wrought by the passage of the Code.
Under the aegis of the Labor Code
The specific provision of the Labor Code on union security arrangements reads: "Nothing in this code or in any other law shall stop the
parties from requiring membership in a recognized collective bargaining
agent as a condition of employment, except those employees who are already mel.1bers of another union at the time of the signing of the collective bargaining agreement."23
Although there has been a slight change in actual phraseology, there
is no conceptual alteration. It would appear then that the closed hop arrangement, and variations thereof, are, under the Labor Code as under
20 Manila
Trading & Suply Co. v. Manila Trading Labor Association, G.R No.
L-5783, May 29, 1953, 93 Phil. 288 (1953).
21 Pagkakaisa
ng Samahang Manggagawa sa San Miguel Brewery v. Enriquez,
108 Phil. 1010 (1960); Philippine Federation of Petroleum Workers (PFPW) v.
Court of Industrial Relations, G.R. Nos. L-26346 & L-2635S, February 27, 1971,
37 SCRA 711 (1971).
22 National
Brewery & Allied Industries Labor Union of the Philippines v.
San Miguel Brewery, Ir.c., G.R. No. L-18170,August 31, 1963, 8 SeRA 805 (1963).
23 ~R
CODE, art. 247( e) .
25
art.
art.
art.
art.
art.
art.
245.
244
247(e).
246.
24l( 0).
247(e).
Subsequently, Presidential Decree No. 570-A added, by way of amendment, the proviso: "provided, that the individual authorization required
under Article 241 ( 0) of this Code shall not apply to the non.memberi
of the recognized collective bargaining agent."30 This additional proviso
is, of course, a practical necessity, for without it, it would have be-en
extremely difficult to impose the agency fee, for the non-union member
from whom it is being exacted is not likely to sign readily any individual
authorization for check-off.
The policy-makers who formulated the Code obviously, in effect,
reversed previous Supreme Court rulings on the matter, and in the exercise
of legislative policy-making, deliberately declared as a valid arrangement
what had been previously declared by the Court as invalid.
Apparently, the framers of the Code were persuaded by the oftrepeated argument that unions, unlike other voluntary associations, must
represent members and non-members alike so that those who do not join
are "free riders," accepting valuable benefits without cost, not to mention
responsibility. Obviously, also, they have chosen to brush aside the
counter-argument that there are some employees who may wish to refrain
from joining a union - or supporting one through the payment of dues
- for genuine and sincere reasons of conscience, and that the rights of
these individual must be respected.
IV.
and
The Labor Code being quite new and avowedly designed to effect a
re-structuring in one of the most critical areas of human interaction, it
is to be expected that it will contain many provisions which will generate
controversy and that there will be a number of points which will require
clarification. At this juncture, attention shall be focused on some of these
aspects, which are a little obscure and dim, so that some possible explanations which will afford some enlightenment can be explored.
As earlier adverted to, the issue of union security arrangements
specially in its extreme form, the closed shop - involves a serious conflict
of basic rights. As a respected commentator puts it: "On the one hand,
there is the fundamental right of the employee to earn a living as well as
the fundamental right to decide whether or not he will join a union, and
if so. which union he is to join. The effect of a closed shop agreement
on these rights is quite clear: these rights are gravely restricted by its
32
not also work out this way? Union membership, like any other membership, in any association entails more responsibilities and duties than mere
payment of dues. Now that the non-union member is required by law to
pay an agency fee, would this not have the effect of relieving him of the
moral duty to join the union, because after all he is no longer a "free-rider".
And if so, would this not deter, rather than promote, an increase in union
membership? From the point of view of the upion leadership itself, would'
the fact that it no longer has to worry about free riders not cause
them to be complacent with their membership, considering that they are
assured of financial resources anyway and any increase in membership would
necessarily only impose added demands upon their time and personal involvement? Will they not consequently be less aggressive in their membership campaign? Would this not in the long run lead to stunting the
growth of trade unionsim? Would it not also be conducive to the perpetuation of a situation of "taxation without representation?"
Would not the fact that the union can charge agency fees not be
used by management to forestall the installation of a closed shop or a union
shop? Could a persuasive management negotiator not succeed in convincing the labor panel that with the agency fee there is really no need
for the union to take all the employees under its wing?
Let us now turn to questions of interpretation and implementation.
Is the agency fee provision merely permissive or mandatory? An examination of the wording would indicate that it merely authorizes the
~mposition of an agency fee, as witness the use of the permissive "may".
In the recent Tripartite Conference, however, I understand that a rankin,g
Department of Labor official opined that the provision is mandatory,
for that is how they had intended it to be, and if the wording as it stands
does not reflect that intention, then, they will change the wording. Now,
which shall prevail, the final wording of the statutory provision, or the afterthought of one of its <'mers?
What constitutes "acceptance of benefits" which would be the basis
for the collection of agency fee? Would a non-union member who continues to receive after November 1, 1974 benefits which are identical
to those given under a Collective Bargaining Agreements negotiated before the effectivity of the Labor Code now be subject to the payment of
an agency fee?
It stands to reason that the agency fee provision should apply only
to new Collective Bargaining Agreements, that is to say, those that will
be negotiated and concluded after the effectivity of the Labor Code. But
suppose the new Collective Bargaining Agreement merely continues the same
benefits under the old Collective Bargaining Agreement, may the non-union
member object legally to the collection of the agency fee on the ground that
he has not accepted any "new" benefits and that he is merely enjoying
old benefits to which he has already acquired some form of vested right?
Suppose the Management varies somewhat the form and nature of the
benefits to be extended to the non-union members, will this be sufficient
to exempt the non-union members from the agency fee on the allegation
that the benefits that were extended to them are not the same benefits
given under the Collective Bargaining Agreement?
To what rights are the non-union members from whom agency fees are
collected entitled, vis-a-vis the Union? By paying the agency fee, do the
non-union members become thereby "quasi-members"? If so, what are
their rights as such?
These are some of the questions that need to be definitively an3wered.
Unfortunately, constraints of time and space inhibit any attempt on this
occasion to suggest even the most tentative answers. It is hoped, however,
that in due course the National Labor Relations Commission and, if need
be, the Supreme Court will unequivocably resolve the issues that have
been raised.