1. Duty to Bargain

DUTY TO BARGAIN COLLECTIVELY

Meaning of the Duty to Bargain Collectively

• The performance of a mutual (employer and the exclusive bargaining agent) obligation to meet and convene
• Promptly and expeditiously in good faith
• For the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement, and
• Executing a contract incorporating such agreements, if requested by either party. (Labor Code, Art. 263)

Parties to Collective Bargaining

• Employer
• Employees, represented by the exclusive bargaining agent

The duty to bargain collectively arises only between the employer and its employee. (Allied Free Workers Union v. Compania Maritima, G.R. Nos. L-122951-52, 1967)

Jurisdictional Pre-Conditions of Collective Bargaining

• Status of majority representation of the employees’ representative;
• Proof of majority representation; and
• Demand to bargain under Art. 261(a) (Kiok Loy v. NLRC, G.R. No. L-54334, 1986).

Purpose of Collective Bargaining

Purpose of collective bargaining is the reaching of an agreement resulting in a contract binding on the parties; but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. The statutes invite and contemplate a collective bargaining contract, but they do not compel one. The duty to bargain does not include the obligation to reach an agreement (Union of Filipro Employees v. Nestle Phils., G.R. 158930-31, 2008)

When There Is No Collective Bargaining Agreement (Labor Code, Art. 262)

In absence of an agreement OR other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of the employer AND the representatives of the employees to bargain collectively in accordance with the provisions of this Code.

The duty to bargain collectively where no CBA exists involves the performance of a mutual obligation:

• To meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement; and
• To execute a contract incorporating such agreements, if requested by either party. (Labor Code, Art. 263)

Essentially, the duty to bargain in this situation still requires the performance of the obligation by the employer and the union to meet, convene and confer for collective purposes.

Limitations to the Duty to Bargain

The duty to bargain does not compel any party to agree to a proposal or to make any concession (Labor Code, Art. 263).

Notes: The provisions of the Code are only supplementary and not mandatory with regard to the process of collective bargaining. It is the policy of the state to promote the primacy of FREE collective bargaining. (Labor Code, Art. 218[a])

The Code authorizes parties to provide for their own procedure in CB but it must be more expeditious than that provided in Art. 261.

If they are unable to agree, they must follow the Code procedure (i.e. in Art. 261).

Automatic Renewal Clause

At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (Labor Code, Art. 268 [256]) It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. (Labor Code, Art. 264 [253])

Duty to Bargain Collectively when there is a Collective Bargaining Agreement (Labor Code, Art. 264)

General Rule: When there is a CBA, the duty to bargain also means that neither party shall terminate nor modify such agreement during its lifetime.

Exception: 60 days before the CBA expires, either party may notify the other in writing that it wants to terminate or modify the agreement. The CBA remains in full force and effect during the 60 day period and until a new agreement is reached.

SEVENTH ULP: VIOLATION OF THE DUTY TO BARGAIN (ART. 259 [G])

To violate the duty to bargain collectively as prescribed by this Code

Both employers and labor organizations can commit acts of unfair labor practices in collective bargaining. However, the labor organization must be the representative of the employees before any act it does may be considered as a violation of the duty to bargain collectively. (Labor Code, Art. 259[g] and 260[c])

Four Forms of Unfair Labor Practice in Bargaining

• Failure or Refusal to Meet and Convene
• Evading the Mandatory Subjects of Bargaining
• Bad Faith in Bargaining
• Flagrant and/or malicious refusal to comply with the economic provisions of the CBA

Acts Not Deemed Refusal to Bargain

• Adoption of an adamant bargaining position in good faith, particularly when the company is operating at a loss;
• Refusal to bargain over demands for commission of ULP;
• Refusal to bargain during period of illegal strike;
• Refusal to bargain where there is no request for bargaining;
• Union seeks recognition for an inappropriately large unit

Note: Holding meetings that result in deadlocks, if done in good faith, does not result in ULP. The purpose of collective bargaining is the reaching of an agreement resulting in a contract binding on the parties but the failure to reach an agreement after negotiations have continued for a reasonable period does not establish a lack of good faith. (Union of Filipro Employees v. Nestle, G.R. Nos. 158930-31, 2008).

SECOND FORM: EVADING THE MANDATORY SUBJECTS OF BARGAINING

Where the subject of the dispute is a mandatory bargaining subject, either party may bargain to an impasse as long as he bargains in good faith.

Where the subject is non-mandatory, a party may not insist on bargaining to the point of impasse. His insistence may be construed as evasion of the duty to bargain.

Other Examples of Bad Faith Bargaining

Surface Bargaining: A sophisticated pretense in the form of apparent bargaining does not satisfy the statutory duty to bargain. The duty is not discharged by merely meeting together or simply manifesting a willingness to talk. An employer’s proposals which could not be offered with any reasonable expectation that they would be accepted by the union constitute surface bargaining. (Standard Chartered Bank Employees Union (NUBE) v. Confessor, G.R. No 114974, 2004)

Blue Sky Bargaining: The making of exaggerated or unreasonable proposals in collective bargaining. (Standard Chartered Bank Employees Union (NUBE) v. Confessor, G.R. No. 114974, 2004)

Boulwarism – occurs:

• When the employer directly bargains with the employee disregarding the union;
• The aim was to deal with the union through the employees, rather than with the employees through the union;
• Employer submits its proposals and adopts a “take it or leave it” stand. (NLRB v. General Electric Co., 418 F. 2d 736 (1970)

THIRD ULP: REFUSAL TO BARGAIN (ART. 260(C))

A union violates its duty to bargain collectively by entering negotiations with a fixed purpose of not reaching an agreement or signing a contract.

Requisites

• Union is the duly certified bargaining agent (Lakas ng Manggagawang Makabayan v. Marcelo Enterprises, G.R. No. L-38258, 1982)
• Commits any of the following:
• Violation of the duty to bargain collectively
• Refusal to bargain collectively with the employer

See above discussion on Forms of ULP in Collective Bargaining