DEADLOCK OR IMPASSE Q: When is there deadlock or impasse?

A: It exists where GF bargaining on the part of the

parties has failed to resolve the issue and there are no definite plans for further efforts to break the deadlock.

Impasse presupposes a reasonable effort at GF

bargaining which, despite noble intentions, does not conclude in an agreement between parties.

Q: What determines whether a bargaining impasse exists?

A:

1. Bargaining history

2. Parties good faith in negotiations 3. Length of the negotiations

4. Importance of the issue or issues as to which there is disagreement

5. Contemporaneous understanding of the parties as to the state of negotiations.

Q: What is necessary to break an existing impasse? A: A substantial change in the bargaining position of

one party is necessary to break an existing impasse so as to render unlawful the other party’s subsequent refusal to meet and bargain.

NOTE: No valid bargaining impasse can be said to occur when bargaining deadlock is caused by the failure of one of the parties to bargain in GF.

Q: Does deadlock mean end of bargaining?

A: No, it signals rather the need to continue the

bargaining with the assistance of a third party as conciliator or arbitrator whose first aim is to get the parties back to the negotiating table and help them craft a win-win solution.

NOTE: An ER cannot be held to have violated the obligation to bargain collectively with representatives of its EEs where the negotiations with the union had resulted in a deadlock, causing the ER to shut down the plant and the union made no request to further negotiate until after the plant had reopened with a new set of EEs operating under an agreement with another LO.

The law recognizes bargaining deadlock as a valid reason to declare a strike or lockout. At this point, strike/lockout is supposed to be a method of resolving an impasse, a device to constrain the parties to end an impasse and go back to the negotiation table. Nonetheless, frequently, they become a problem in themselves.

Q: May a bargaining deadlock be resolved through arbitration by a L.A?

A: In the case of Manila Central Line Corp. v. Manila

Central Line Free Workers Union, the Court held that there is nothing in the law that prohibits LAs from also acting as voluntary arbitrators as long as the parties agree to have him hear and decide their dispute.

Bad Faith

Bargaining deadlock may also arise because of lack GF in bargaining.

Q: What does good-faith include?

A: Good faith demands more than sterile and repetitive

discussion of formalites precluding actual negotiation, more than formal replies which constitute in effect a refusal to treat with the union, and more than a willingness to enter upon a sterile discussion of union- management differences. It requires sincere effort to reach agreement, although it does not require agreement itself.

NOTE: An ER cannot be guilty of a refusal to bargain if the union is not itslef bargaining in good faith.

Q: What determines GF? What is the test of GF in bargaining?

A: There is no per se test of GF in bargaining. GF or BF is

an inference to be drawn from the facts and is largely a matter of NCRB’s expertise. To some degree, the question of GF may be a question of cerdibility.

-it must be based entirely upon the consideration of the negotiations as a whole.

- the effect of an ER’s actions individually is not the test of good-faith bargaining but the impact of all such occassions or actions, considered as a whole, and th inferences fairly drawn therefrom collectively, may offer a basis for the finding of the NLRB.

Q: What may be a good criterion of GF?

A: A fair criterion of GF requires that the parties

involved deal with each other with open and fair mind and sincerely endevour to overcome obstacles or difficulties existing between them to the end that employment reletions may be established and obstruction to the free flow of commerce prevented.

Q: When can bargaining in BF be raised?

A: If one will be charged with bargaining in BF, the

charge should be raised while the bargaining is in progress. When the bargaining is finished and the CBA has been executed voluntarily by the parties, a charge of bargaining in BF is too late and untenable.

Q: What are the instances to be considered as BF? A:

1. Delay in negotiations

2. If the negotiation is motivated by a desire to gain time so as to be able to undermine the union. 3. There was a refusal to bargain collectively in GF

within the meaning of the statute where an ER imposed a 7-month bargaining hiatus because of the unavailability of ts negotiators; where the ER postponed several meetings and made no attempt to reach an agreement when meetings took place; where the ER’s negotiator frequently interrupted bargaining sessions with time-consuiming discussions, and no new areas of agreement were reached in spite of some counter proposals offered by the union and its often-indicated willingness to listen to other offers by the ER; delaying tactics; 4. ER refused to bind himself contractually as to wage

rates, hours of work, holidays, vacations and bonuses, insisting upon the right to grant such conditions of employment as grautities, and rejected a clause against lockouts;

5. By failing to vest its negotiators with sufficient authority to make agreements on their own initiative or to accept tentatively comnitments which would have reasonable likelihood of final acceptance by its Board of Directors.

NOTE: The prior adjudication of BF on an earlier occasion is not itself substantial evidence of present bad faith.

COLEGIO DE SAN JUAN DE LETRAN v. ASSOC. OF EMPLOYEE AND FACULTY OF LETRAN AND AMBAS

The ER’s utter lack of interest in bargaininh with the union is obvious in tis failure to make a timely reply to the proposals presented by the latter. As the Court ruled in the case of Kiok Loy v. NLRC, the company’s refusal to make counter-proposal to the union’s proposed CBA is an indication of BF.

Q: Does the mere filing of a petition for certification election suspend the negotiation?

A: No, mere filing of for a certification election does not

ipso facto justify the suspension of negotiation by the ER. The petition must first comply with the provisions of the Labor Code and its Implementing Rules.