UST FACULTY UNION, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION, UNIVERSITY OF SANTO TOMAS, NORBERTO CASTILLO, NORMA LERMA, TERESITA CENDANA AND DIONISIO CABEZON, RESPOND…

The right of a union to intervene in the extension of the service
of a retired employee is the question submitted in this petition.

On May 17, 1986, the UST Faculty Union (Union for short) and the
University of Sto. Tomas (UST for short) entered into a collective bargaining
agreement which provided as follows:

“Section 1. Retirement
age.- It is hereby agreed and stipulated that the compulsory retirement age for
faculty members is 65 years, provided that faculty members who have reached the
age of 65 years may be granted extension of tenure unless they are physically
incapacitated or are manifestly inefficient or incompetent, or are otherwise
removed for cause. They shall continue to enjoy the usual benefits
and privileges until the extension of their tenure is validly denied by the
UNIVERSITY in consultation with the UNION or until they are validly separated from the service,
provided that their period of extended service shall not be credited for
purposes of retirement.’ (Emphasis
supplied)”^[1]

On July 6, 1986, Tranguilina J. Mariño, a faculty member of the
Faculty of Pharmacy, reached the retirement age of 65. She was allowed to continue her teaching
stint until the end of schoolyear 1986-1987 and was further allowed an
extension of tenure for the schoolyear 1987-1988. However, she was denied extension of tenure for the schoolyear
1988-1989.

In the same school year (1988-1989), Professor Francisco
Bonifacio of the College of Education was denied extension of tenure after he
reached the age of 65. Several faculty
members of the Department of Civil Law were allegedly similarly denied
extension of tenure.

On July 12, 1988, a complaint for unfair labor practice was
lodged by the Union with the arbitration branch of the public respondent
National Labor Relations Commission (NLRC). A decision was rendered by Labor Arbiter Bienvenido V. Hermogenes on
December 15, 1988 dismissing the case for lack of merit. The Union appealed to the public respondent
which in due course promulgated a resolution on June 30, 1989 affirming the
appealed decision. A motion for
reconsideration of said decision filed by petitioner was denied in a resolution
dated September 4, 1989.

Hence, the herein petition where it is alleged that the public
respondent acted with grave abuse of discretion amounting to lack of
jurisdiction based on the following submissions:

“I.    The
Honorable Public Respondent acted with grave abuse of discretion amounting to
lack of jurisdiction when it disregarded Section 1, Article XII of the
Collective Bargaining Agreement and rendered the said provision nugatory.

II. The
Honorable Public Respondent acted with grave abuse of discretion amounting to
lack of jurisdiction when it allowed the Respondents to modify the Collective
Bargaining Agreement during its lifetime by adding new terms and conditions not
found therein.

III. The
Honorable Public Respondent acted with grave abuse of discretion amounting to
lack of jurisdiction when it dismissed the Appeal of the Petitioner in NLRC-NCR
Case No. 00-07-02880-88 instead of declaring that the Respondents are guilty of
Unfair Labor Practice for violating Section 1, Article XII.

IV.   The
Honorable Public Respondent acted with grave abuse of discretion amounting to
lack of jurisdiction when it did not order the Respondents to jointly and
severally pay the Petitioner damages for breach of contract.”^[2]

The petition is devoid of merit.

A reading of the aforesaid Section 1, Article XII of the
Collective Bargaining Agreement shows the following: (1) that the compulsory age for retirement for a faculty member is
65 years; (2) upon having reached the age of 65 years they may be granted an
extension of tenure unless they are manifestly inefficient or incompetent or
are otherwise removed for cause; (3) that they shall continue to enjoy the
usual benefits and privileges until the extension of their tenure is validly
denied by the university in consultation with the Union or until they are
validly separated from the service; and (4) that the period of extended service
shall not be credited for purposes of retirement.

It is important to state that upon the compulsory retirement of
an employee or official in the public or private service his employment is
deemed terminated. The matter of
extension of service of such employee or official is addressed to the sound
discretion of the employer. It is a
privilege only the employer can grant.

In the present case, under the rule aforestated, a member of the
faculty of UST who reaches the age of 65 is retired or separated from the
service thereby. However, the UST may
grant extension of tenure to such a retiree unless they are manifestly
inefficient or manifestly physically incapacitated or are otherwise removed for
cause.

The grant of such extension may be made in accordance with
existing rules and regulations of the UST. It appears that on March 1, 1988, the Rector of the UST laid down the
procedure for the extension of service of retired faculty members as follows:

“1.  He must apply in writing to the Dean of his
College of Affiliation;

2.  His application is subject to the decision of
the Dean and the Faculty Council en banc;

“3.  A majority vote of the Dean and the Faculty
Council en banc is required for the recommendation of the extension of
appointment to the Council of Regents and Academic Senate;

4.
The Council of Regents and the Academic Senate must meet separately for
purposes of making their respective decision subject to the approval of the
Father Rector.

GUIDELINES FOR THE EXTENSION OF RETIRED FACULTY MEMBERS:

1.     
Must be mentally and physically fit to discharge his
obligation as a faculty member;

2.     
His subject is highly specialized and that presently there is
no available replacement to take the place of (the) mandatory retired faculty
member once he gets out of the service. For this reason, Deans are required to prepare younger faculty members
for purposes of replacement;

3.     
A retired faculty member whose age is above 70 is no longer
qualified for extension of services.”^[3]

Under the foregoing rules, for a retiree to be granted extension,
he must apply in writing to the Dean of the college to which he or she is
affiliated. His application is subject
to the decision of the Dean and Faculty Council en banc, a
majority of the vote of which is required for a recommendation of the extension
of the applicant to the Council of Regents and Academic Senate. The Council of Regents and Academic Senate
will then meet separately and make the decision subject to the approval of the
Father Rector.

When the decision is for a denial of the extension of tenure of a
retiree the decision should be made in consultation with the Union. However, such consultation is not necessary
when the retiree is validly separated from the service.

In the case of Prof. Mariño, she was, as aforestated, allowed an
extension of two (2) years in her teaching stint in the Faculty of Pharmacy for
the schoolyears 1986-1988. However, she
was denied extension of tenure for the schoolyear 1988-1989. Contrary to the claim of petitioner that
there was no consultation with the Union, it appears that on June 20, 1988, the
Union wrote the Rector of UST on the matter of extension of the service of
Prof. Mariño. In a letter of June 27,
1988, the Union was informed by the Rector of the reasons why the extension was
denied, as follows:

“1. No recommendation on Mrs. Mariño’s extension
for another year was made by the Dean and Faculty Council of the Faculty of
Pharmacy, which recommendation is condition sine qua non
for the yearly grant of extension.

2.     
The two (2) subjects assigned to and being handled by Mrs.
Mariño last second semester of school year 1987-1988 are general and common
subjects not necessitating the specialized knowledge of Mrs. Mariño and which
can properly, sufficiently and adequately handled by non-extendee regular,
tenured, willing and able faculty members.

3.     
It is the position of Management that the matter of extension
of the term of service of professors beyond the compulsory retirement
age of sixty five (65) years is not a matter of right, legally enforceable and
demandable, but a mere privilege which the University may withhold in the
rightful exercise of its discretionary power and prerogative. To make it a legally enforceable and
demandable right would certainly defeat the very purpose and reason behind the compulsory
retirement scheme and would prevent the infusion of young blood in the academic
community of the University.

4.     
While it is true that the Collective Bargaining Agreement
(CBA) provides for ‘consultation with the union’ in cases of denial of
extension, however, in this particular case of Mrs. Mariño, it is the position
of Management that no further consultation is necessary since her case has been
the subject of discussion for quite sometime between the union and Management
as shown by the numerous exchange of communications thereon.

In any event, the consultation provision in the CBA does not
operate to totally deprive the University of its sole and exclusive prerogative
and discretion to determine the professors who deserve to be extended. The clause ‘Consultation with the Union’ in
the CBA should not be interpreted or construed to mean ‘approval’ or ‘consent’
of the Union. Consultation, however we
define the term, legally, literally or otherwise, only means that management
will hear the advice, position or opinion of the Union, but has no legal duty or obligation to priorily
secure the approval or consent thereof. The Union’s role, therefore, is nothing but advisory in nature; and
being so, management may either adopt or reject it, wholly or partly. In other words, the final decision still
rests with Management.”^[4]

The Court agrees with the position of the UST that the required
consultation with the Union as provided in the CBA should be interpreted to
mean as one which is advisory in character and as such, the opinion of the
Union is not binding on the UST authorities. The final say as to the denial of extension of a retiree still rests with the employer, the UST.

Moreover, it appears that there are two (2) reasons why extension
was not granted to Prof. Mariño, namely: (1) she did not apply for an extension so no recommendation for
her extension could have been granted; and (2) the subjects assigned to her do
not require specialized knowledge and may be adequately handled by non-extendee
regular faculty members.

Consequently, the Court holds that in the case of Prof. Mariño,
she was validly separated from the service not only because she did not apply
for an extension but because her service does not appear to be
indispensable. In accordance with the
aforestated CBA, inasmuch as she was validly separated, a consultation with the
Union was unnecessary.

The separation from the service provided for in the aforestated
CBA agreement should not be interpreted to mean the valid causes for separation
as provided for by law. When the
compulsory retirement age is reached by an employee or official he is thereby
effectively separated from the service. However, the employer would be the best judge as to the grounds that may
warrant a grant or denial of the extension of service of an employee or
official. The Court finds that there is
cogent basis in the denial of the extension of Prof. Mariño in this instance.

In the case of Prof. Francisco Bonifacio, the non-extension of
his service was because he did not apply for the same but also because at the
time he retired there was an administrative case against him for allegedly
immoral acts. Nevertheless, he executed
an affidavit stating that he did not authorize the filing of the petition in
his behalf and that he is not interested in the extension of his service.^[5]

In the case of the three (3) professors of the Faculty of Civil
Law, namely: Messrs. Jose Feria,
Antonio Gregorio (deceased) and Voltaire Garcia, aside from the fact that none
of them applied for the extension of tenure, all of them have reached the age
of 70 beyond which no extension may be granted under the rules of the school.

The public respondent did not commit a grave abuse of discretion
in dismissing the complaint of petitioner. In the same light, the UST did not commit an unfair labor practice in
denying the extension of the service of Prof. Mariño even without consultation
with petitioner.

WHEREFORE, the petition is DISMISSED, without pronouncement
as to costs.

SO ORDERED.

Cruz, Griño-Aquino, and
Medialdea, JJ., concur.

Narvasa, J., (Chairman), no
part.

^[1]
Annex A to the petition; page 5, Rollo.

^[2]
Pages 8-9, Rollo.

^[3] Annex A to the petition; page 137, Rollo.

^[4] Annex B to the Comment; page 139-140, Rollo.

^[5]
Annexes E to E-1, Comment of the Private Respondent.