EN BANC

[G.R. No. 164301. October 11, 2011.]

BANK OF THE PHILIPPINE ISLANDS , petitioner, vs . BPI EMPLOYEES

UNION-DAVAO CHAPTER-FEDERATION OF UNIONS IN BPI UNIBANK ,
respondent.

RESOLUTION

LEONARDO-DE CASTRO , J : p

In the present incident, petitioner Bank of the Philippine Islands (BPI) moves for
reconsideration 1 of our Decision dated August 10, 2010, holding that former employees
of the Far East Bank and Trust Company (FEBTC) "absorbed" by BPI pursuant to the two
banks' merger in 2000 were covered by the Union Shop Clause in the then existing
collective bargaining agreement (CBA) 2 of BPI with respondent BPI Employees Union-
Davao Chapter-Federation of Unions in BPI Unibank (the Union).
To recall, the Union Shop Clause involved in this long standing controversy provided, thus:
ARTICLE II
xxx xxx xxx

Section 2. Union Shop. New employees falling within the bargaining unit
as de ned in Article I of this Agreement, who may hereafter be regularly
employed by the Bank shall, within thirty (30) days after they become
regular employees, join the Union as a condition of their continued
employment. It is understood that membership in good standing in the Union is
a condition of their continued employment with the Bank. 3 (Emphases supplied.)

The bone of contention between the parties was whether or not the "absorbed" FEBTC
employees fell within the de nition of "new employees" under the Union Shop Clause, such
that they may be required to join respondent union and if they fail to do so, the Union may
request BPI to terminate their employment, as the Union in fact did in the present case.
Needless to state, BPI refused to accede to the Union's request. Although BPI won the
initial battle at the Voluntary Arbitrator level, BPI's position was rejected by the Court of
Appeals which ruled that the Voluntary Arbitrator's interpretation of the Union Shop Clause
was at war with the spirit and rationale why the Labor Code allows the existence of such
provision. On review with this Court, we upheld the appellate court's ruling and disposed of
the case as follows:
WHEREFORE, the petition is hereby DENIED, and the Decision dated September
30, 2003 of the Court of Appeals is AFFIRMED, subject to the thirty (30) day notice
requirement imposed herein. Former FEBTC employees who opt not to become
union members but who qualify for retirement shall receive their retirement
bene ts in accordance with law, the applicable retirement plan, or the CBA, as the
case may be. 4

Notwithstanding our af rmation of the applicability of the Union Shop Clause to former
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 FEBTC employees, for reasons already extensively discussed in the August 10, 2010
Decision, even now BPI continues to protest the inclusion of said employees in the Union
Shop Clause. cTADCH

In seeking the reversal of our August 10, 2010 Decision, petitioner insists that the parties
to the CBA clearly intended to limit the application of the Union Shop Clause only to new
employees who were hired as non-regular employees but later attained regular status at
some point after hiring. FEBTC employees cannot be considered new employees as BPI
merely stepped into the shoes of FEBTC as an employer purely as a consequence of the
merger. 5
Petitioner likewise relies heavily on the dissenting opinions of our respected colleagues,
Associate Justices Antonio T. Carpio and Arturo D. Brion. From both dissenting opinions,
petitioner derives its contention that "the situation of absorbed employees can be likened
to old employees of BPI, insofar as their full tenure with FEBTC was recognized by BPI and
their salaries were maintained and safeguarded from diminution" but such absorbed
employees "cannot and should not be treated in exactly the same way as old BPI
employees for there are substantial differences between them." 6 Although petitioner
admits that there are similarities between absorbed and new employees, they insist there
are marked differences between them as well. Thus, adopting Justice Brion's stance,
petitioner contends that the absorbed FEBTC employees should be considered "a sui
generis group of employees whose classi cation will not be duplicated until BPI has
another merger where it would be the surviving corporation." 7 Apparently borrowing from
Justice Carpio, petitioner propounds that the Union Shop Clause should be strictly
construed since it purportedly curtails the right of the absorbed employees to abstain
from joining labor organizations. 8
Pursuant to our directive, the Union led its Comment 9 on the Motion for Reconsideration.
In opposition to petitioner's arguments, the Union, in turn, adverts to our discussion in the
August 10, 2010 Decision regarding the voluntary nature of the merger between BPI and
FEBTC, the lack of an express stipulation in the Articles of Merger regarding the transfer of
employment contracts to the surviving corporation, and the consensual nature of
employment contracts as valid bases for the conclusion that former FEBTC employees
should be deemed new employees. 1 0 The Union argues that the creation of employment
relations between former FEBTC employees and BPI (i.e., BPI's selection and engagement
of former FEBTC employees, its payment of their wages, power of dismissal and of control
over the employees' conduct) occurred after the merger, or to be more precise, after the
Securities and Exchange Commission's (SEC) approval of the merger. 1 1 The Union
likewise points out that BPI failed to offer any counterargument to the Court's reasoning
that:
The rationale for upholding the validity of union shop clauses in a CBA, even if
they impinge upon the individual employee's right or freedom of association, is
not to protect the union for the union's sake. Laws and jurisprudence promote
unionism and afford certain protections to the certi ed bargaining agent in a
unionized company because a strong and effective union presumably bene ts all
employees in the bargaining unit since such a union would be in a better position
to demand improved benefits and conditions of work from the employer. . . . .

. . . Nonetheless, settled jurisprudence has already swung the balance in favor of

unionism, in recognition that ultimately the individual employee will be bene ted
by that policy. In the hierarchy of constitutional values, this Court has repeatedly
held that the right to abstain from joining a labor organization is subordinate to
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 the policy of encouraging unionism as an instrument of social justice. 1 2

While most of the arguments offered by BPI have already been thoroughly addressed in
the August 10, 2010 Decision, we nd that a quali cation of our ruling is in order only with
respect to the interpretation of the provisions of the Articles of Merger and its
implications on the former FEBTC employees' security of tenure.
Taking a second look on this point, we have come to agree with Justice Brion's view that it
is more in keeping with the dictates of social justice and the State policy of according full
protection to labor to deem employment contracts as automatically assumed by the
surviving corporation in a merger, even in the absence of an express stipulation in the
articles of merger or the merger plan. In his dissenting opinion, Justice Brion reasoned
that: aDECHI

To my mind, due consideration of Section 80 of the Corporation Code, the

constitutionally declared policies on work, labor and employment, and the specific
FEBTC-BPI situation i.e., a merger with complete "body and soul" transfer of all
that FEBTC embodied and possessed and where both participating banks were
willing (albeit by deed, not by their written agreement) to provide for the affected
human resources by recognizing continuity of employment should point this
Court to a declaration that in a complete merger situation where there is total
takeover by one corporation over another and there is silence in the merger
agreement on what the fate of the human resource complement shall be, the
latter should not be left in legal limbo and should be properly provided for, by
compelling the surviving entity to absorb these employees. This is what Section
80 of the Corporation Code commands, as the surviving corporation has the legal
obligation to assume all the obligations and liabilities of the merged constituent
corporation.

Not to be forgotten is that the affected employees managed, operated and worked
on the transferred assets and properties as their means of livelihood; they
constituted a basic component of their corporation during its existence. In a
merger and consolidation situation, they cannot be treated without consideration
of the applicable constitutional declarations and directives, or, worse, be simply
disregarded. If they are so treated, it is up to this Court to read and interpret the
law so that they are treated in accordance with the legal requirements of mergers
and consolidation, read in light of the social justice, economic and social
provisions of our Constitution. Hence, there is a need for the surviving corporation
to take responsibility for the affected employees and to absorb them into its
workforce where no appropriate provision for the merged corporation's human
resources component is made in the Merger Plan. 1 3

By upholding the automatic assumption of the non-surviving corporation's existing

employment contracts by the surviving corporation in a merger, the Court strengthens
judicial protection of the right to security of tenure of employees affected by a merger and
avoids confusion regarding the status of their various benefits which were among the chief
objections of our dissenting colleagues. However, nothing in this Resolution shall impair
the right of an employer to terminate the employment of the absorbed employees for a
lawful or authorized cause or the right of such an employee to resign, retire or otherwise
sever his employment, whether before or after the merger, subject to existing contractual
obligations. In this manner, Justice Brion's theory of automatic assumption may be
reconciled with the majority's concerns with the successor employer's prerogative to
choose its employees and the prohibition against involuntary servitude.

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 Notwithstanding this concession, we nd no reason to reverse our previous
pronouncement that the absorbed FEBTC employees are covered by the Union Shop
Clause.
Even in our August 10, 2010 Decision, we already observed that the legal ction in the law
on mergers (that the surviving corporation continues the corporate existence of the non-
surviving corporation) is mainly a tool to adjudicate the rights and obligations between and
among the merged corporations and the persons that deal with them. 1 4 Such a legal
ction cannot be unduly extended to an interpretation of a Union Shop Clause so as to
defeat its purpose under labor law. Hence, we stated in the Decision that:
In any event, it is of no moment that the former FEBTC employees retained the
regular status that they possessed while working for their former employer upon
their absorption by petitioner. This fact would not remove them from the scope of
the phrase "new employees" as contemplated in the Union Shop Clause of the
CBA, contrary to petitioner's insistence that the term "new employees" only refers
to those who are initially hired as non-regular employees for possible regular
employment.

The Union Shop Clause in the CBA simply states that "new employees" who
during the effectivity of the CBA "may be regularly employed" by the Bank must
join the union within thirty (30) days from their regularization. There is nothing in
the said clause that limits its application to only new employees who possess
non-regular status, meaning probationary status, at the start of their employment.
Petitioner likewise failed to point to any provision in the CBA expressly excluding
from the Union Shop Clause new employees who are "absorbed" as regular
employees from the beginning of their employment. What is indubitable from the
Union Shop Clause is that upon the effectivity of the CBA, petitioner's new regular
employees (regardless of the manner by which they became employees of BPI)
are required to join the Union as a condition of their continued employment. 1 5 cACDaH

Although by virtue of the merger BPI steps into the shoes of FEBTC as a successor
employer as if the former had been the employer of the latter's employees from the
beginning it must be emphasized that, in reality, the legal consequences of the merger only
occur at a speci c date, i.e., upon its effectivity which is the date of approval of the merger
by the SEC. Thus, we observed in the Decision that BPI and FEBTC stipulated in the Articles
of Merger that they will both continue their respective business operations until the SEC
issues the certi cate of merger and in the event no such certi cate is issued, they shall
hold each other blameless for the non-consummation of the merger. 1 6 We likewise
previously noted that BPI made its assignments of the former FEBTC employees effective
on April 10, 2000, or after the SEC approved the merger. 1 7 In other words, the obligation
of BPI to pay the salaries and bene ts of the former FEBTC employees and its right of
discipline and control over them only arose with the effectivity of the merger.
Concomitantly, the obligation of former FEBTC employees to render service to BPI and
their right to receive bene ts from the latter also arose upon the effectivity of the merger.
What is material is that all of these legal consequences of the merger took place during
the life of an existing and valid CBA between BPI and the Union wherein they have mutually
consented to include a Union Shop Clause.
From the plain, ordinary meaning of the terms of the Union Shop Clause, it covers
employees who (a) enter the employ of BPI during the term of the CBA; (b) are part of the
bargaining unit (de ned in the CBA as comprised of BPI's rank and le employees); and (c)
become regular employees without distinguishing as to the manner they acquire their
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 regular status. Consequently, the number of such employees may adversely affect the
majority status of the Union and even its existence itself, as already amply explained in the
Decision.
Indeed, there are differences between (a) new employees who are hired as probationary or
temporary but later regularized, and (b) new employees who, by virtue of a merger, are
absorbed from another company as regular and permanent from the beginning of their
employment with the surviving corporation. It bears reiterating here that these differences
are too insubstantial to warrant the exclusion of the absorbed employees from the
application of the Union Shop Clause. In the Decision, we noted that:
Verily, we agree with the Court of Appeals that there are no substantial differences
between a newly hired non-regular employee who was regularized weeks or
months after his hiring and a new employee who was absorbed from another
bank as a regular employee pursuant to a merger, for purposes of applying the
Union Shop Clause. Both employees were hired/employed only after the CBA was
signed. At the time they are being required to join the Union, they are both already
regular rank and le employees of BPI. They belong to the same bargaining unit
being represented by the Union. They both enjoy bene ts that the Union was able
to secure for them under the CBA. When they both entered the employ of BPI, the
CBA and the Union Shop Clause therein were already in effect and neither of them
had the opportunity to express their preference for unionism or not. We see no
cogent reason why the Union Shop Clause should not be applied equally to these
two types of new employees, for they are undeniably similarly situated. 1 8

Again, it is worthwhile to highlight that a contrary interpretation of the Union Shop Clause
would dilute its ef cacy and put the certi ed union that is supposedly being protected
thereby at the mercy of management. For if the former FEBTC employees had no say in the
merger of its former employer with another bank, as petitioner BPI repeatedly decries on
their behalf, the Union likewise could not prevent BPI from proceeding with the merger
which undisputedly affected the number of employees in the bargaining unit that the Union
represents and may negatively impact on the Union's majority status. In this instance, we
should be guided by the principle that courts must place a practical and realistic
construction upon a CBA, giving due consideration to the context in which it is negotiated
and purpose which it is intended to serve. 1 9
We now come to the question: Does our af rmance of our ruling that former FEBTC
employees absorbed by BPI are covered by the Union Shop Clause violate their right to
security of tenure which we expressly upheld in this Resolution? We answer in the negative.
AaITCS

In Rance v. National Labor Relations Commission, 2 0 we held that:

It is the policy of the state to assure the right of workers to "security of tenure"
(Article XIII, Sec. 3 of the New Constitution, Section 9, Article II of the 1973
Constitution). The guarantee is an act of social justice. When a person has no
property, his job may possibly be his only possession or means of livelihood.
Therefore, he should be protected against any arbitrary deprivation of his job.
Article 280 of the Labor Code has construed security of tenure as meaning
that "the employer shall not terminate the services of an employee
except for a just cause or when authorized by" the Code . . . . (Emphasis
supplied.)

We have also previously held that the fundamental guarantee of security of tenure and due
process dictates that no worker shall be dismissed except for a just and authorized cause
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 provided by law and after due process is observed. 2 1 Even as we now recognize the right
to continuous, unbroken employment of workers who are absorbed into a new company
pursuant to a merger, it is but logical that their employment may be terminated for any
causes provided for under the law or in jurisprudence without violating their right to
security of tenure. As Justice Carpio discussed in his dissenting opinion, it is well-settled
that termination of employment by virtue of a union security clause embodied in a CBA is
recognized in our jurisdiction. 2 2 In Del Monte Philippines, Inc. v. Saldivar , 2 3 we explained
the rationale for this policy in this wise:
Article 279 of the Labor Code ordains that "in cases of regular employment, the
employer shall not terminate the services of an employee except for a just cause
or when authorized by [Title I, Book Six of the Labor Code]." Admittedly, the
enforcement of a closed-shop or union security provision in the CBA as
a ground for termination nds no extension within any of the
provisions under Title I, Book Six of the Labor Code. Yet jurisprudence
has consistently recognized, thus: "It is State policy to promote
unionism to enable workers to negotiate with management on an even playing
eld and with more persuasiveness than if they were to individually and
separately bargain with the employer. For this reason, the law has allowed
stipulations for 'union shop' and 'closed shop' as means of encouraging workers
to join and support the union of their choice in the protection of their rights and
interests vis-a-vis the employer." 2 4 (Emphasis supplied.)

Although it is accepted that non-compliance with a union security clause is a valid ground
for an employee's dismissal, jurisprudence dictates that such a dismissal must still be
done in accordance with due process. This much we decreed in General Milling
Corporation v. Casio, 2 5 to wit:
The Court reiterated in Malayang Samahan ng mga Manggagawa sa M.
Greenfield v. Ramos that:
While respondent company may validly dismiss the employees expelled by
the union for disloyalty under the union security clause of the collective
bargaining agreement upon the recommendation by the union, this
dismissal should not be done hastily and summarily thereby eroding the
employees' right to due process, self-organization and security of tenure.
The enforcement of union security clauses is authorized by law provided
such enforcement is not characterized by arbitrariness, and
always with due process . Even on the assumption that the federation
had valid grounds to expel the union of cers, due process requires that
these union of cers be accorded a separate hearing by respondent
company .
The twin requirements of notice and hearing constitute the essential elements of
procedural due process. The law requires the employer to furnish the employee
sought to be dismissed with two written notices before termination of
employment can be legally effected: (1) a written notice apprising the employee
of the particular acts or omissions for which his dismissal is sought in order to
afford him an opportunity to be heard and to defend himself with the assistance
of counsel, if he desires, and (2) a subsequent notice informing the employee of
the employer's decision to dismiss him. This procedure is mandatory and its
absence taints the dismissal with illegality.
Irrefragably, GMC cannot dispense with the requirements of notice and
hearing before dismissing Casio, et al. even when said dismissal is
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 pursuant to the closed shop provision in the CBA . The rights of an
employee to be informed of the charges against him and to reasonable
opportunity to present his side in a controversy with either the company or his
own union are not wiped away by a union security clause or a union shop clause
in a collective bargaining agreement. . . . 2 6 (Emphases supplied.)
EScaIT

In light of the foregoing, we nd it appropriate to state that, apart from the fresh thirty
(30)-day period from notice of nality of the Decision given to the affected FEBTC
employees to join the Union before the latter can request petitioner to terminate the
former's employment, petitioner must still accord said employees the twin requirements
of notice and hearing on the possibility that they may have other justi cations for not
joining the Union. Similar to our August 10, 2010 Decision, we reiterate that our ruling
presupposes there has been no material change in the situation of the parties in the
interim.
WHEREFORE , the Motion for Reconsideration is DENIED . The Decision dated August 10,
2010 is AFFIRMED , subject to the qualifications that:
(a) Petitioner is deemed to have assumed the employment contracts of the Far East
Bank and Trust Company (FEBTC) employees upon effectivity of the merger without
break in the continuity of their employment , even without express stipulation in the
Articles of Merger; and
(b) Aside from the thirty (30) days, counted from notice of nality of the August 10,
2010 Decision, given to former FEBTC employees to join the respondent, said employees
shall be accorded full procedural due process before their employment may be
terminated.
SO ORDERED.
Corona, C.J., Velasco, Jr., Peralta, Abad, Villarama, Jr., Mendoza and Perlas-Bernabe, JJ.,
concur.
Carpio, J., I reiterate my dissenting opinion.
Brion, J., in light of modification.
Bersamin and Perez, JJ., are on official leave.
Sereno, J., joins J. Carpio.
Del Castillo, J., is on leave.
Reyes, J., took no part.

Footnotes

1.Rollo, pp. 249-258.

2.The term of the CBA in question covered the period April 1, 1996 to March 31, 2001.
3.Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions in
BPI Unibank, G.R. No. 164301, August 10, 2010, 627 SCRA 590, 613.
4.Id. at 649.
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 5.Rollo, pp. 251-252; Motion for Reconsideration, pp. 3-4.
6.Id. at 253; id. at 5.

7.Justice Brion's Dissenting Opinion, Bank of the Philippine Islands v. BPI Employees Union-
Davao Chapter-Federation of Unions in BPI Unibank, supra note 3 at 693; quoted in
Motion for Reconsideration, id.
8.Rollo, pp. 254-256.
9.Id. at 262-278.

10.Id. at 264-271.
11.Id. at 275.
12.Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions
in BPI Unibank, supra note 3 at 647-648.
13.Id. at 683-684.
14.Id. at 630-631.
15.Id. at 632.

16.Id. at 634.
17.Id.
18.Id. at 635-636.
19.Marcopper Mining Corporation v. National Labor Relations Commission , 325 Phil. 618, 632
(1996).
20.246 Phil. 287, 292-293 (1988), cited in Gatus v. Quality House Inc., G.R. No. 156766, April 16,
2009, 585 SCRA 177, 199 and Perez v. Philippine Telegraph and Telephone Company ,
G.R. No. 152048, April 7, 2009, 584 SCRA 110, 150.
21.Cosep v. National Labor Relations Commission , 353 Phil. 148, 157 (1998); Archbuild
Masters and Construction, Inc. v. National Labor Relations Commission , 321 Phil. 869,
877 (1995).

22.Justice Carpio's Dissenting Opinion, Bank of the Philippine Islands v. BPI Employees Union-
Davao Chapter-Federation of Unions in BPI Unibank, supra note 3 at 667, citing Alabang
Country Club, Inc. v. National Labor Relations Commission , G.R. No. 170287, February
14, 2008, 545 SCRA 351, 361.
23.G.R. No. 158620, October 11, 2006, 504 SCRA 192.
24.Id. at 203-204.
25.G.R. No. 149552, March 10, 2010, 615 SCRA 13.

26.Id. at 34-35.

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