FIRST ULP IN BARGAINING: FAILURE OR REFUSAL TO MEET AND CONVENE An employer is guilty of unfair labor practice in refusing to bargain

with the representative of a majority of his employees. An employer must bargain in good faith, he must not only meet and confer with the union which represents his employees, but also recognize the union for the purpose of collective bargaining. In addition, he must recognize the union as the bargaining representative of all employees in the appropriate bargaining unit, even if they are not all members of the union. This ULP can also be committed by employees, in one case, a union was found guilty of refusal to bargain collectively by insisting that an employer agree to union demands that he make retroactive payments of pension benefits and submit to an audit of his books, before a union would execute a bargaining agreement. ( NLRB vs. Bricklayers and Masons Union ) The following instances may or may not justify refusal to bargain: Unresolved petition for Union Cancellation The pendency of a petition for cancellation of union registration does not preclude collective bargaining. The majority status of a union is not is not affected by the pendency of the petition for cancellation against it. Unless its certificate of registration and its status as the certified bargaining agent are revoked, the employer is by express provision of the law, duty bound to collectively bargain. ( Capitol Medical Center vs Trajano ) Selling the Company If an employer is guilty of unfair labor practice when he directly his employees to forestall a demand for collective bargaining, he should certainly not be allowed to evade responsibility if he indirectly causes that discharge by selling to a company that he knows is unwilling to accept his employees. The basic rule is that if the transfer of assets and employees from one employer to another leaves intact the identity of the employing enterprise, the transferors duty to recognize and bargain with an incumbent union devolves upon the transferee as successor employer The rule is different however where the buyer makes substantial nondiscriminatory personnel changes and changes in the operational structure of the business, in such a case, he is not a successor employer, and need not recognize or bargain with the incumbent union. Conversion to Independent Franchise or Operation. A decision to withdraw capital from a company oriented facility and relinquish the operating control to an independent dealership or contractor lies very much at the core of entrepreneurial control, and hence not a mandatory subject of collective bargaining. It is not an unfair labor practice, even though all the members of the union were eliminated, where the employer had no anti-union motivation and took the step solely for business reasons.

Do Economic Exigencies Justify Refusal to Bargain? An employer has been held not guilty of a refusal to bargain by adamantly rejecting the unions economic demands where he is operating at a loss on a low profit margin, or in a depressed industry as long as he continues to negotiate in good faith. But financial hardship constitutes no excuse for refusing to bargain collectively

Acts not Deemed Refusal to Bargain 1. Adoption of an adamant bargaining position in good faith, particularly where the company is operating at a loss; 2. Refusal to bargain over demands for commission of unfair labor practices. 3. Refusal to bargain during periods of illegal strike. 4. There is no request for bargaining 5. The union seeks recognition for an inappropriately large unit 6. The union seeks to represent some persons who are excluded from the Act. 7. The rank-and-file unit includes supervisors or inappropriate otherwise. 8. The demand for recognition and bargaining is made within a year following a certification election in which the clear voice was no union, and no ad interim significant change has taken place in the unit. 9. The union makes unlawful bargaining demands. Non-Reply to Proposal; CBA Imposed on Employer In the case of Kiok Loy vs NLRC, the Surpeme Court found that petitioner therein, Sweden Ice Cream Plant, refused to submit any counter proposal to the CBA proposed by its employees certified bargaining agent. The court held in the case that collective bargaining is a mutual responsibility between labor and management. Its a legal obligation so much so that Art. 248 of the Labor Code makes its unfair labor practice for the employer to refuse to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement for wages, hours of work, and other terms of employment. The union complied with the jurisdictional preconditions of collective bargaining, namely: 1. Possession of majority representation 2. Proof of majority representation 3.demand to bargain. For the conduct of the company, it is indubitably shown that it disregarded its obligation to bargain in good faith. The court imposed on the erring company the CBA proposed by the Union. This decision of the high court was repeated in the case of Divine Word University of Tacloban vs. Secretary of Labor. In this case, the University contended that the unions proposal cannot be unilaterally imposed on it on the ground that a collective bargaining agreement is a contract where the consent of both parties is indispensable . This contention, according to the court is devoid of merit for the same reasons stated in the Kiok Loy case, moreover the court ruled that it is not obligatory upon either side of a labor controversy to agree to the proposals of the other, But an erring party should not

be tolerated and allowed with impunity to resort to schemes feigning negotiation by going through empty gestures.

SECOND ULP IN BARGAINING: EVADING THE MANDATORY SUBJECTS

It is the obligation of the employer and the employees representative to bargain with each other with respect to wages, hours and other terms and conditions of employment. They are statutory or mandatory proposals. An employers refusal to negotiate a mandatory subject of bargaining is an unfair labor practice although the employer has every desire to reach agreement and earnestly and in all good faith bargains to that end. On the other hand, an employers duty to bargain is limited to the mandatory bargaining subjects; as to other matters, he is free to bargain or not to bargain. The following are examples of matters considered as mandatory subjects of bargaining : 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Wages and other types of compensation including merit increases Working hours and working days, including work shifts Vacation and holidays Bonuses Pensions and retirement plans Seniority Transfer Layoffs Employee workloads Work and rules of regulation Rent of company houses Union security arrangements

No Duty to Agree Even on Mandatory Subjects The Act does not compel agreements between employers and employees and neither party is legally obligated to yield even on mandatory bargaining subject. Where the subject of a dispute is mandatory one, either party may bargain to an impasse or deadlock as long as he bargains in good faith. An employer on the other hand cannot insist on the inclusion to the point of an impasse on the inclusion of a provision outside the scope of the statutory bargaining subjects, even if he acts in good faith.

Therefore, bargaining to the point of deadlock may or may not amount to bargaining in bad faith constituting an ULP depends on whether the insistence refers to mandatory or a non-mandatory subject of bargaining. Duty to Bargain When There is Deadlock or Impasse Deadlock doesnt mean the end of bargaining. 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 het the parties back to the negotiating table and help them craft a win-win solution. The deadlock may be resolved by authorities such as the National Conciliation and Mediation Board or by the labor arbiters acting as a voluntary arbitrators as long as the parties agree to have the latter hear and decide the dispute.