19. Duty to bargain collectively The duty to bargain collectively means 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 executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession (LABOR CODE, Art. 262)

Discuss the Kiok Loy RulingANS: Back to enterprise level the employer is not under any legal duty to initiate contract negotiation. The mechanics, of collective bargaining are set in motion only when the following preconditons are present namely

1. Possession of the status of majority representation of employees representative in accordance with any of the means of selection or designation provided for by the Labor Code;2. Proof of majority representation; and3. A demand to bargain under Article 256, Par, a (Kiok Loy v. NLRC, G.R. No. 54334':January 22, 1986):

When there is absence of a CBA When there is a CBA

Compliance to Article 256, LC Er and union must MEET, CONVENE and

CONFER for collective bargaining purposes Requisites of collective bargaining must be

complied witho Er-Ee relationshipo Majority status of bargaining uniono Demand to negotiate

Advantage where the negotiations have no precedent CBA: Clean slate, unencumbered by previous agreements

Neither party shall terminate nor modify such agreement during its lifetime.

Parties may serve notice to terminate or modify agreement during freedom period

Parties to keep the status quo during freedom period until new agreement is reached.

Basis:In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. (LABOR CODE, Art. 261).

Basis:Duty to bargain collectively when there exists a collective bargaining agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms of conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the

parties.(Labor Code Art. 263)

20. ULP by Employer and Labor OrganizationsElements of Unfair Labor Practice

Concurrence of BOTH1) There should exist an employer-employee relationship between the offended party and offender2) Act complained of must be EXPRESSLY mentioned and defined in the Labor Code

ULP by Employers ULP by Labor organizations

1. Interference 2. Yellow dog condition 3. Contracting out 4. Company unionism 5. Discrimination

a. Wages, hours of work, terms and conditions of employment

b. Except with respect to Union Security Clauses

6. Dismissal or prejudice or discrimination by reason of testimony

7. Violation of duty to bargain8. Payment of Negotiation or Attorney’s Fees to

the Union, its officers or agents9. Violate CBA

1. Restraint or coercion of employees in the exercise of their right

2. Causing or attempting to cause employer to discriminate against an employee

3. Violate duty, or refuse to bargain collectively with employer

4. Causing or attempting to cause employer to pay or deliver any money or other things of value for services which are not performed, including demand for union negotiation fees (Feather-bedding)

5. Ask for or accept negotiation or attorney’s fees from employers as part of settlement of any issue in collective bargaining or any other dispute

6. Violation of a CBA

Company Union Initiate, dominate, assist or otherwise interfere with the formation or administration of any

labor organization Includes giving of financial or other support to it or its organizers or supporters

Yellow Dog Contract Known previously as “infamous document” or “iron-clad document” From the United Mine Workers Journal (1921) – “This agreement has been well named. It is

yellow dog for sure. It reduces to the level of a yellow dog any man that signs it, for he signs away every right he possesses under the Constitution and by-laws of the land and makes himself the truckling, helpless slave of the employer.”

Totality of Conduct of Doctrine

Expressions of opinion by an employer, may be held to be constitutive of unfair labor practice because of the circumstances under which they were uttered, the history of the particular employer‘s labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference. An expression which might be permissibly uttered by one employer, might, in the mouth of more hostile employer, be deemed improper and consequently actionable as an unfair labor practice.

Criminal Liability for ULPs Only officers or agents of corporations, associations or partnerships who actually participated in,

authorized or ratified ULPs to be held criminally liable On the part of the Union, its officers, members of governing boards, representatives or agents