Collective Bargaining: Concept and History.

Collective bargaining is of seminal importance in the field of labor relations. Without it,
unionism does not carry much significance because it is the primordial objective of the
organization of workers, the main purpose of the exercise of the right self-organization.
Collective bargaining is a system or a process by which employees, through their duly
chosen representative, negotiate with their employer regarding the terms and conditions of their
employment. The process usually results in a collective bargaining agreement, which is a
contract where the agreed terms and conditions are laid down. Being a contract, it is the law
between the parties thereto, insofar as the terms and conditions of employment are concerned.
The Duly to Bargain Collectively.
The primary meaning of the duty to bargain collectively is laid down in Article 263.
Article 262 provides how that duty is to be complied with in the absence of an agreement or
arrangement for a more expeditious manner of collective bargaining. Article 264 says what the
duty to bargaining collectively “also means that when there is already a CBA between the
parties, neither party shall modify nor the same during its lifetime terminate. All of these,
together with the question of when the duty to bargain arises, have been discussed in the
immediately preceding Title, in connection with unfair labor practice consisting of violation of the
duty to bargain collectively.
Collective bargaining is a continuing process. Consequently, the duty to bargain
collectively does not end with the execution of a collective bargaining agreement but extends to
the settlement of grievances arising from its interpretation or implementation. (Master Iron Labor
Union v. NLRC, 219 SCRA 47.) It also means that complying in good faith with its provisions is
a necessary part of the process.
Representation for the Purpose of Collective Bargaining.
The parties to collective bargaining are the employer on one side and on the other side,
his employees or a distinct aggrupation of his employees, represented by a union. The
bargaining union is required to be a legitimate labor organization, or one duly registered in the
BLR. Once it acquires representative status, it becomes an exclusive collective bargaining
agent.
That status is attained by either of three methods, namely: (1) voluntary recognition, (2)
certification by the BLR after winning in a certification election; or (3) winning in a consent
election.
1.) Voluntary Recognition.

Voluntary Recognition can be granted by the employer to the union in an

unorganized establishment by complying with the conditions and procedures
provided in Rule VII, Book V of the Omnibus Rules. After the submission of the
required documents, the fact of voluntary recognition shall be recorded by the
appropriate enjoy the rights, privileges and obligations of an exclusive collective
bargaining representative.
An unorganized establishment is a firm or company where a recognized
or certified exclusive bargaining agent does not exist.
2.) Certification Election.
Certification is the act of certifying a legitimate labor organization as the
exclusive bargaining representatives of an appropriate collective bargaining unit,
after winning in a certification election, through secret ballot conducted for the
purpose. The object of certification election, through secret ballot conducted for
that purpose. The object of certification proceedings is not the decision of any
alleged commission of wrongs nor asserted deprivation of rights but is merely the
determination of proper bargaining units and the ascertainment of the will and
choice of the employees with respect to the selection of a collective bargaining
representative. A certification proceeding, therefore, is non-litigious in character.
Any legitimate labor organization may file a petition for certification
election. If a federation which possesses that status files the petition on behalf of
its local chapter, the latter, as the principal, should itself be a legitimate labor
organization, having complied with all the requirements prescribed by the
Omnibus Rules for attaining such standing. (Lopez Sugar Corporation v.
Secretary of Labor, 247 SCRA 1.) An employer may also file such a petition,
when requested to bargain collectively, and is in doubt as to the requesting
union’s representative status. If the employer entertains no such doubt, it can just
extend voluntary recognition to the union.
Under Article 258-A (now 271) no matter who filed the petition for
certification election, the employer is a mere bystander in such proceedings; this
matter is the exclusive concern of the employees. (Divine Word University of
Tacloban v. Secretary of Labor, 213 SCRA 759.) It has no personality even to
oppose a petition for certification election. (California Manufacturing Corporation
v. Laguesma, 209 SCRA 606.) Its interference in opposing such a petition is
manifestly uncalled for and unduly creates a suspicion that it intends to establish
a company union. (Oriental Tin Can Labor Union v. Secretary of labor, 294
SCRA 640.) The employee’s role is thus limited to being informed of the filling of
the petition and submitting the list of employees during the pre-election
conference in case the petition is granted.

3.) Consent Election.

Consent Election is not mentioned in the Labor Code, but is allowed by
the Omnibus Rules. It refers to an election voluntarily agreed upon by the parties,
with or without the intervention of the Department, to determine the issue of
majority representation of all the workers in the appropriate collective bargaining
unit. (Section 1 [h], Rule I Book V, Omnibus Rules.)
While a certification election is conducted upon order of the Med-Arbiter
after certification proceedings, a consent election is agreed upon by the parties,
although it may have been the result of the intervention of the Med-Arbiter in
what started out as a petition for certification election. Where that is the case, no
order for the conduct of an election is issued. Instead, the agreement between
the parties is entered in the minutes, signed by them and attested by the Med-
Arbiter. (Section 16, Rule VIII, Book V, Omnibus Rules.)

4.) Direct Certification

 Under the original Article 257 of the Labor Code, direct certification of an
exclusive collective bargaining agent without going through the process of
certification election was allowed, if the choice of the members of the bargaining
unit could be ascertained from the documents submitted. An election was
conducted if there was any reasonable doubt as to whom the employees had
chosen as their representative for the purpose of collective bargaining. The
present law, however, does not provide for direct certification. Articles 268, 269
and 270 require that a certification election be conducted, on an automatic basis,
in certain situations.

Collective Bargaining Unit.

The constituency of a duly recognized or certified exclusive collective
bargaining representative is a group of employees called collective bargaining
unit. Such a unit is defined in the Omnibus Rules (Section 1[d], Rule I, Book V)
as “a group of employees sharing mutual interest within a given employer unit,
comprised of all or less than all of the entire body of employees in the employer
unit or any specific occupational or geographical grouping within such employer
unit.” A collective bargaining agreement usually contains a provision on
“coverage,” which defines the scope of the collective bargaining unit. As so
defined, all the members of such unit, whether or not affiliated with the bargaining
union, are directly entitled to the benefits provided by the CBA.
The factors that should be considered in determining the appropriate
collective bargaining unit are:1) the will of the employees (Globe Doctrine); 2)
affinity and unity of the employees’ interest, such as substantial similarity of work
and duties, or similarity of compensation and working conditions (Substantial
Mutual Interest Rule); 3) prior collective bargaining history; and 4) similarity
bargaining unit’s acceptability is whether or not it is fundamentally the
combination that will best assure to all employees the exercise of their collective
bargaining right. (International Alliance of Educators v. Quisumbing, 333SCRA
13.)

UPLs in Collective Bargaining

1.) The first may be committed by refusing to bargain or evading the

duty to bargain with respect to wages, hours or work and other terms
and conditions of employment, bargaining in bad faith, and refusing to
execute a contract if requested by any party after agreement is
reached.
Under the primary definition of the duty to bargain collectively
(Article 263), the first duty of the parties is to meet and convene
promptly and expeditiously. Meeting and convening are the
prerequisites to negotiating an agreement. Therefore, violation of that
duly to meet and convene is unfair labor practice, but only if the
matters to meet and convene about include wages, hours of work and
other terms and conditions of employment and proposals for adjusting
grievances arising under the agreement. These are known as the
statutory or mandatory subjects of collective bargaining.
2.) Under Article 259(h), it is unfair labor practice for an employer to pay
negotiation or attorney’s fees to the union or its officers or agents as
part of the settlement of any issue in collective bargaining or any
dispute, while under Article 260€, it is unfair labor practice for a labor
organization to ask for or accept negotiation or attorney’s fees from
employers for the Title on Unfair Labor Practices.
3.) The third unfair labor practice in collective bargaining is violation of a
collective bargaining agreement, under Articles 259(i) and 260(f), in
relation to Article 274. The latter Article provides that violation of CBA
is an act of unfair labor practice only if it gross, i.e., consisting of
flagrant and/or malicious refusal to comply with the economic
provisions of the CBA. This matter will be taken up further under
Article 274.

Collective Bargaining Agreement.

A collective bargaining agreement, which is a binding contract

between the employer and his employees concerning the latter’s
terms and conditions of employment, is for that reason sometimes
referred to as the industrial constitution of the enterprise. Being a
contract, a CBA is the law between the parties and should be
implemented according to its obvious intendment. Where there is a
conflict between words and the evident intention of the parties, the
latter must prevail. (Kimberly Clark Philippines v. Larredo, 226 SCRA
639.) Since the CBA is the law between the parties during the period
agreed upon, no one can be compelled to accept changes in its terms
during that period. (Golden Farms, Inc. v. Ferrer-Calleja, 175 SCRA
471.) The NLRC cannot remake a contract by eviscerating it by
deleting from it words placed by the parties. No court, no interpreter or
applier of a contract has such a prerogative (United Textile Mills v.
NLRC, 184 SCRA 273.)
Where the words of a CBA are plain, there is no need for
interpretation beyond their literal meaning. But, where there is an
ambiguity, the same should be resolved in favor of labor. (Plastic
Town Center Corporation v. NLRC, 172 SCRA 580.) Under Article
1702 of the Civil Code in case of doubt all labor legislation and all
labor contracts should be construed in favor of the safety and decent
living for the laborer.
A CBA is not an ordinary contract but one impressed with public
interest, and thus must yield to the common good. It should be
constructed liberally rather than narrowly and technically. (Davao
Integrated Port Services v. Avarquez, 220 SCRA 197.) In interpreting
it, the constitutional policy of according utmost protection and justice
to labor shall be upheld. (Marcopper Mining Corporation v. NLRC, 255
SCRA 322.) The courts must place a practical and realistic
construction upon it, giving due consideration to the context in which it
was negotiated and the purpose which it is intended to serve.
(Pantranco North Express, Inc. v. NLRC, 259 SCRA 161.)
Is a CBA enforceable against the transferee of an enterprise? As
a general rule, the answer is no because a CBA is a contract in
person which is binding only on the parties thereto. There are
exceptions, however. In cases where the transferee assumed liability
under the CBA in the contract of sale, or the transfer was made in bad
faith, or in the transfer of a going concern, where the identity of the
business is left intact or is continued to be operated without
substantial change, liability under the CBA devolves on the transferee.
(See discussion of successor employer under Unfair Labor Practices
in Collective Bargaining, supra.)
The execution of a contract does not end the collective bargaining
process. It just signals the end of the contract negotiable, which is
sometimes referred to as the legislative aspect of that process. The
executive aspect, consisting of the day-by-day administration of the
contract, and the judicial aspect, or the settlement of disputes arising
thereunder, are yet to come. For the latter purposes, Article 273
requires that every CBA contain provisions that will ensure the mutual
observance of its terms and conditions, and a machinery for the
settlement and resolution of grievances arising from the interpretation
or implementation of the CBA as well as those arising from the
interpretation and enforcement of company personnel policies.