2nd Exam Labrel 2012

7/31/2019 2nd Exam Labrel 2012

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AMDGLectures of Fr. Nazareno

Labor Relations 2nd Exam SY 2012-2013

DAY 11

Certification of Election

Who may file a certification of election?

Where can you file?What are its contents?When can you not file?How?

Q. Who can file? Rule VIII, Sec. 1 (as amended by DO No. 40-F-03, October 30,2008 after RA 9481 which took effect June14,2007)

1. Any legitimate labor organization which can be a local or independent union, or a federation or national union2. The employer when requested to bargain collectively in a bargaining unit when no CBA exists3. (not found in the said rule, this will be discussed later)When there is already a CBA in the last 60 days of the

agreement a.k.a. FREEDOM PERIOD. 25% of the bargaining unit who supported the certification of election can fileeven if they are not a legitimate labor organization.- this right is indubitable because the right to self organization includes the right not to join the union.

Certification of election must determine 2 issues:(1) whether or not the bargaining unit wants representaion?(2) if they want representaion, who is their representative?

The said rule assumes that the union or the workers want representaion. BUT SC has said the right to self organizationincludes the right not to join a union. Otherwise, it will not be a right.

Q: Where do you file? (Rule VIII, Sec. 2)The new rule is complicated.

Old rule was changed by Nestle case in Cagayan de Oro

The union in Nestle Plant CDO decided to file a Certificationof Election in CDO. Nestle moved to dismiss alleging that it is

the regional office of the employer and the main office of the employer is in Makati, it should be filed in Makati. The unioncontended that it should not be in Makati because that will render nugatory our right to self-organization. They cannotafford to go to Makati and file it there.SC said the it is the DOLE Regional Office that has jurisdiction over the workplace. Therefore, it is the Regional Office inCDO that has jurisdiction since the plant is located in CDO.

What does the Rule say? (1st paragraph)

A petition for certification election shall be filed with the Regional Office which issued the petitioning unions certificate ofregistration/certificate of creation of chartered local. chartered local or the federation.

If Manila issued the license of the union and they are now petitioning in Davao because they want to organize the particularbranches of PPI in Davao, can they file it in Davao or should they file it in Manila?Here in the IRR, you should file it in Manila. That is an added confusion.

2nd paragraph says:

The petition shall be heard and resolved by the Med-Arbiter.

Med-Arbiter is the first line officer of the BLR. BLR has the jurisdiction over certification election petition, inter or intra uniondisputes, registration of unions, cancellation of registration.

3rd paragraph says:

3-Manresa (Jonah,Ian, Ana, Jesse) 1


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Where two or more petitions involving the same bargaining unit are filed in one RO, the same shall be automaticallyconsolidated with the Med-Arbiter who first acquired jurusdiction.---

simple ra na

---Where the the petitions are filed in different ROs, the RO in which the petition was first filed shall exclude all others; inwhich case, the latter shall indorse the petition to the former for consolidation.

It is not clear here that you are talking about a workplace that actually struggles 2 ROs. It just says here that if you are filingin 2 ROs. But I think the idea is that the workplace is the basis of the union. They should clarify it. What Regional Directorhas jurisdiction? It should be the one who has the correct venue.

Now, BPI has branched all over the Philippines, is it like PAL which has branches and ports? PAL is only one bargainingunit for all the branches for rank and file. But BPI is split up, all Davao branches belong to one bargaining unit (from Digosto Panabo). That is one bargaining unit covered by 1 CBA. How did that happened? That happened by peculiar historicalcollective bargaining. Its a very contentious case which took place 20-25 years ago. (The father of Councilor Librado wasthe one who organized the union for the BPI branches in Davao. Dean Inigo was the lawyer of BPI when they were onstrike.)

Section 4. Form and contents of petition(READ)

Remember what is the nature of the Certification Election? It is non- adversarial. It is fact finding. So, therefore for failure tocomply with the contents in Sec 4, your petition cannot be dismissed. It will just be given back to you and you are told to pickit up quickly. Because it is factfinding. It is not adversarial.

Now, why is it required to be verified?You know of course what verified is. The petitioner under oath respectfully averse before his honorable Med-Arbiter. 1) thatthe petitioner is the local of the workers of XYZ corporation affiliated with FFF federation of laborers. At the end of that, youhave the verification. A verification is another affidavit: I so and so being the president of the above named local unionunder oath because I say that I am authorized, that I have read the contents of the post the preparation of this petition, that Iknow that the contents are true and correct based on my personal knowledge. Then you sign affiant. Then it is subscribedand sworn to before me as notary public. That is verification.

When you say verification needed, to prevent fly by night personalities that take advantage of what is called the automatic

certification policy. Why? In the direct letter of the law, in unorganized establishments, once a petition of certification electionis filed in unorganized establishments, there is an immediate order to hold certification election automatically. Unorganizedestablishments ha. That is Art 257.

Art. 257. Petitions in unorganized establishments. In any establishment where there is no certified bargaining agent, acertification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labororganization.

That is the policy of automatic certification election in unorganized establishment. In other words, the benefit of the doubt isthe workers should be given a chance to choose their officer. So if what you allege there is not true, wa kay membro dihaetc, you can be caught for perjury. This is to limit the abuse of the policy of certification election.

Now, if you cannot meet these requirements in the form and contents, you just take back the petition and refile it because

there is no penalty for refilling a petition. But the Med-arbiter should help you if you are a labor organization because the lawfavors the right to self-organization. Tabangan ka sa Med-Arbiter. Kung wa kay abogado, kami na lang muverify nimo. Naamay abogado ang Med-arbiter, before whom you verify your petition. Because the important thing is the petition shouldcontain all these actual requisites so that the med-arbiter can properly act on you interest.

Q: when can you file a certification election? That is answered by Section 3, Rule VIII, Book 5. Taas kaau ang answer. It isimportant to remember when you cannot file a certification election.



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There are 3 imstances when you cannot file:a) When the so called certification year rule applies.b) When the so called deadlock bar rule applies.c) When the so called contract bar rule applies.

Therefore, when the 3 rules do not apply, you can file.

What is this certification year rule?a) When the fact of voluntary recognition has been entered or a valid certification, consent or run-off election has

been conducted within 1 bargaining unit within 1 year prior to the filing of the petition for certification election.

You cannot file a certification election. So actually, the certification year rule is from the moment the labor organization iscertified as exclusive bargaining association, it has 1 year to conclude CBA with the management. You cannot file acertification election covering the same bargaining unit.

Q: Does that apply to organized establishments only Art 256? Or does it apply to unorganized establishment also Ar257?It applies to both because the certification rule says, that within 1 year from and after a certification election results,there can be no certification election that can be filed for that bargaining unit.

An organized establishment is 1 that has either an operating CBA or a certified CBA. Why are those two not the same?There might be a certified CB agent but it has not yet proven a CBA. That is already an organized establishment. Or,there might be an existing CBA already and there is an exclusive bargaining agent administering that CBA. That is anorganized establishment.Unoraganized, there is no CBA and there is no exclusive bargaining agent. That is unorganized establishment.

Suppose the certification election ends up with a union winning and being certified as exclusive bargaining unit, that isan organized establishment, he is also given 1 year. He is free from another certification election ousting him. So he is atpeace and concentrate on organizing or negotiating a CBA. But if the certification election ends up with no unionwinning, it has also 1 year that no certification election shall be file in a bargaining unit. Whats the reason for that? Togive the employer and the workplace rest because a certification election is very contentious. Only at the end of that 1year that a certification election can be allowed to be filed.

So the certification year rule applies to both organized and unorganized establishment.

DAY 12

Let us go over them. Book 5, Rule6 Determination of representation status.

If there is only 1, you can you to voluntary recognition. Is that the correct conclusion? Because there is only 1 union, you cango ahead and recognize. Will you marry a guy because he is the last male on earth? Is that the right conclusion? Somethingis wrong. It detracts from the right to self-organization. And you will see later on that SC reiterates that.

I will hold you responsible for Rule 7 on Voluntary recognition. You go though that. I am a firm believer of the inconsistencyand legitimacy of recognition.

Rule 6, Sec. 1- xxx The determination of such exclusive bargaining agent is a non-litigious proceeding and as far aspracticable, shall be free from technicalities of law and procedure xxx

If it is so simple, if it is non-litigious, why can you not go through certification election? Time and again that is always theconclusion of the SC. Hold a certification election.

Alright, we have seen Rule VIII. At least as to the question who? What should be contained? Where to file? And as to whenwe will leave that out for a while.



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Q: How? Sec. 5Raffle of the Case.

Notice of Preliminary Conference, thats sec. 6.So the petitioner union, the legitimate labor organization is not obliged to furnish a copy and provide proof of service beforefiling a petition. There is no obligation on the part of the union petitioning to serve copy first with the employer. It is the job o

the Med-Arbiter to send a copy of the petition to the employer.

Q: Does the employer has the right to receive a copy of the petition for certification election?Yes. RA 9481 says in a certification election, the employer is a by-stander. He is not a party to the case but he has the righto receive a copy of the certification election petition. Where is that in RA 9481?

ART. 258-A. Employer as Bystander. - In all cases, whether the petition for certification election is filed by an employer ora legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a

petition for certification election. The employer's participation in such proceedings shall be limited to: (1) being notified orinformed of petitions of such nature; and (2) submitting the list of employees during the pre-election conference should theMed-Arbiter act favorably on the petition.

So he has the right to be informed and notified. How else an he be informed and notified if he does not receive a copy? He

may not be a party but he has the right to receive a copy of the petition. Why is he not a party? Because in the first placethere is no litigation. The determination of such exclusive bargaining agent is a non-litigious proceeding and as far aspracticable, shall be free from technicalities of law and procedure, provided only that in every case, the exclusive bargainingagent enjoys the majority support of all the employees in the bargaining unit. (Rule VI, Sec.1). Gi usab nila ang language sa

American jurisprudence.

It should be that the exclusive bargaining agent is the choice that it should not only enjoy the support. (It might not be youchoice but it may still have your support. Kay ngano man? Wa nay lain. ) HE MUST BE THE CHOICE. That is the exerciseof the right to self-organization.

Alright, so the employer now has notice. He has a copy of the petition. Suppose, upon receive of the copy and after learningthe names of the employees who signed, the employer approaches the employee 1 by 1. Kung ikaw empleyado ka, mudenyang employee. This is the case where the employer filing a manifestation to the Med-Arbiter. He is not a party ha but he file

will a manifestation and attached to the manifestation are the affidavits of those who signed the manifestation withdrawingtheir support from the union.

Q: What happens if there is evidence of non-support of their petition?That is when the SC said that the best way to determine who is telling the truth is to hold a certification election. It is the bestway to determine the will of the majority. But, Jinggoy says in RA 9481, Art 256 and 257:

ART. 256. Representation Issue in Organized Establishments. - In organized establishments, when a verified petitionquestioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including anational union or federation which has already issued a charter certificate to its local chapter participating in thecertification election or a local chapter which has been issued a charter certificate by the national union or federationbefore the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collectivebargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is

supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit toascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of alleligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall becertified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or morechoices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between thelabor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unionsis at least fifty percent (50%) of the number of votes cast. In cases where the petition was filed by a national union orfederation, it shall not be required to disclose the names of the local chapter's officers and members.



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At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbentbargaining agent where no petition for certification election is filed.

Art. 256, If it is filed by the federation in organized establishment.

Art.257-unorganized, this is a virgin workplace, there is no union yet.

ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, acertification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimatelabor organization, including a national union or federation which has already issued a charter certificate to its1ocal/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by thenational union or federation. In cases where the petition was filed by a national union or federation, it shall not be requiredto disclose the names of the local chapter's officers and members.

Ok, it is possible to hold a certification election without revealing any employees in a workplace that is already in favor of theunion. It will be the officers of the federation and not the union, who will sign the petition. So the employer cannot pressureany of the workers to withdraw their support to the petitioning union. That is the whole idea.

But anyway, even if there is that , the SC continues to say that the best way to determine who is telling the truth is to hold acertification election. If you are the employer and the employees have truly withdrawn, dili ka mahadlok ug certificationelection. If you are the union and you say that is not true, you will be confident that you will win because the truth will comeout in secret ballot. So, that is the policy follow by the SC.

Now, preliminary conference Sec. of Rule VIII. Followed by Sec. 7- Forced intervenor.

Sec. 7 Forced Intervenor- The incumbent bargaining agent shall automatically be one of the choices in the certificationelection as forced intervenor.

Now, IRR says that a petition for certification election is a non-litigious proceeding. There should be no technicality of the lawinvolved and yet, for purposes of the law there used the terminology of litigation. Why? The union who wants a certificationelection is called a petitioner. If there is another union that wants to join the certification election and present itself as choiceof the employees, the 2nd 1 should file a motion to intervene. He will be called 2nd intervenor. If there is another union that wilcome in, it will be called 3rd intervenor.

Now, if it is an organized establishment, that means there is already a CBA.There is an exclusive bargaining agent but the CBA is about to end. So theres the freedom period of 60 days.

Q: Can any other union can file during that 60 days?The exclusive bargaining agent will not file a petition for certification election. Naa pa lang lain na musulod na lang hinuon.Huwat ra na siya ug 60 days mulabay, exclusive na pud cya. So huwaton niya. Kung karon naay mufile, kinsa man to?Petitioner tong mufile. Siya na wa mufile, mao na cya ang ginatawag na forced intervenor according to Sec. 7 of RuleVIIIHe is the forced intervenor, ika duha siya. If there is any other union who will file a motion for intervention to take part of theelction, that union is called 2nd intervenor, 3rd intervenor, etc.

Alright, Sec. 8 of rule VIII (READ)

Alright, Preliminary Conference na, gipatawag na, tagaan ug notice ang employer. Gitawag na tong petitioner, gipatawagsad tong intervenor.

Q: What will be discussed in the conference? Sec.9 (READ).

So there we are in the Preliminary conference, the first part of the proceeding known as certification election. The first part isthe determining of the bargaining unit.



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Notice the terminology of the law. The law does not say the most appropriate bargaining unit. The law only says theappropriate bargaining unit. Therefore, the discretion of the trial of facts lies on the Med-Arbiter. As long as it issupported by substantial evidence, it is alright. It is only when there are compelling reasons.

Now, let me point out to you that those who have not read the Globe case, they would say that the choice of theworkers is the criteria. NO. That is wrong. It must be in the precise content if there is a general bargaining uni

composed of the plurality of the skills and work relations of workers. There is a craft that is growing in turbulanceThen, it is strict in main that is the choice of the workers. So, when it comes to the choice of the general bargainingunit and the craft bargaining unit, then it should be the choice of all.

3) mutuality of interest or communality

According to the SC, this is the #1 criterion, communality of interest. The workers in the agricultural section are paidin a seasonal basis, of them. Besides that, there is no communality of interest between these workers. There isno possibility of social congress. Thats why the SC says that this is the appropriate bargaining unit, not the entire.

4) status of the employees

If you are probationary employee and there are regular employees, you cannot be mixed together because your

basic primary interests are not the same. Kung prabational ka, imong damgo, maregular ka. Kung regular ka, imongdamgo increase. You would clash with each other when employer offers in different terms.The SC said they should be separated.

It is important to realize bargaining unit. It is not true that the labor organization represents the employees. No. The unionrepresents their bargaining unit. Kung wala ka diha sa bargaining unit, you are not represented. But if you are within thebargaining unit, whether or not you are a member of the union, you are represented because it is the exclusive bargainingagent. So, this is the importance of the bargaining unit.

DAY 13The determination of the appropriate bargaining unit.

Q: What is the significance of a bargaining unit?1) As to its determination, a bargaining unit is first described in the petition for certification election. How do you know that?Because in Rule 8, section 4 letter C of the IRR, Form and the contents of petition, you have there the description of thebargaining unit. The description there is tentative. It is the labor organization that proposes the configuration of thebargaining unit.

2) The next time you come across the bargaining unit is in Rule 8, section 13 letter B, a description of the bargaining unitWhere is that found? The 2nd time it is found is in the Order and Decision to hold the certification election. It says within 10days form the date of the last hearing, the Mediator Arbiter shall FORMALLY ISSUE a RULING granting OR DENYING thepetition, EXCEPT in organized establishment WHERE THE GRANT OF THE PETITION CAN ONLY BE MADE AFTER THELAPSE OF the freedom perion. (emphasis: as provided for in the codal) So, thats the second time the description of thebargaining unit is found.

3) The third time that it is found is, it is found in Rule 9, section 15 (formerly section 16 but because of the amendmentsnaging section 15) in the order certifying the collective bargaining agent. Nay certification electionthe results are in. It saysthe the union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agentof all the employees in the appropriate bargaining unit within 5 days from the day of the election, provided no protest isrecorded in the minutes of the election.

Now, in the first description, in the petition for certification election, the employer can question the description of thebargaining unit. He can protest just like what the Belyca Corporation did in the case of B.F Belyca vs. Pura ferrer Calleja.3-Manresa (Jonah,Ian, Ana, Jesse) 7


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Now, when the MedArbiter orders the holding of the certification election, thats the second time the description is givenThat is an appealable order. So you can again question the description. And the third, the order can still be questioned.

Why? If the order certifying the appropriate bargaining agent, because that contains the description of the appropriatebargaining unit, if the description of bargaining unit does not square with the description in the order to hold a certificationelection then there is something wrong. The appropriate bargaining unit once it is determined and has become final in

cannot be expanded to include other employees. Why? Because if you expand it then those who have not yet exercisedthere RTSO they are included without there consent. It is a denial of their right to self organization. If you reduce it, you takeaway some workers there.

Even if they are circumscribed by the original description of the bargaining unit in the order to hold certification election,there is also a violation because they have already voted and they are included in the bargaining unit. So hang on to thabecause very few understand that. Sometimes even the Supreme Court misses it. Many of the commentaries they just missthat out. So if later on there is a circumscription of a bigger bargaining unit that was actually declared in the first place, therecan be a nullification of inclusion in the bargaining unit because there is a continuing violation of the RTSO.

And the RTSO is not waived by the union because it is a personal right. Only the individual employee can waive it and theymust waive it knowingly. How can you waive it knowingly if you are just by implication either embraced or rejected by thebargaining unit? You are improperly embraced by the bargaining unit if you did not take part in the certification election. G

apil ka lng nila. There is a rejection if even if you voted but then when the CBA is concluded you are not part of its benefits.You are excluded when you should have been included. In either case, there is a violation of the RTSO. So please takenote, that is the limitation of the scope of the CBA. You cannot enter into a CBA wider than the appropriate bargaining unit.

Q: Who decides the bargaining unit?Largely it is the labor organization but then it must receive the imprimatur of the state. Ultimately it is the state decideswho/what is the appropriate bargaining unit. You contrast that with the EXCLUSIVE BARGAINING AGENT.

Q: Who decides the exclusive bargaining agent? It is the workers. They decide. The Employees. The employees within thebargaining unit decide who their exclusive bargaining agent is. Does the state have any role in the decision? NO! the statemerely recognizes, it certifies.

Q: What is the precise value of the ceftification?The precise value is to announce that all others that you are out of the picture because this particular bargaining unit hasdecided who their exclusive bargaining unit is. And that is the same legal value of a torrens title. A torrens title merelyrecognizes ownership. It does not create ownership. What creates ownership? It is the mode. You bought it, somebodygave it to you, or you acquired it by prescription. Occupation in not a mode, prescription is a mode. Nitungtong ka anangyuta unya nagtukod kag payag unya niongan kag ako ni kay nitungtong man ko skwater lng ka, dili na imuha. Pero ugniongan ka ako ni kay 30 years na ko diri pero way titulo, nag tanum ko mga punuan, ang fence xxx I am occupying it inthe concept of an owner to the exclusion of all others xxx that is prescription. Mao nay fence kay gipahibalo nimo sa tanangkalibutan na ako ni! That is the same thing with certification of the union as exclusive bargaining agent.

The trouble with that exclusivity as you would fine out later is that it is really exclusive. It even excludes the workersthemselves. The workers cannot even bargain for themselves even if they wanted to. Hasta ang tao na principal, na they aresupposed to be the beneficiary of the representation of the union, they cannot act and set aside the agent. That is thenumber one difference of agency in collective bargaining and agency in the civil code. Because in the civil code, theprincipal has the right to do away with the agent at any time even if the agency is still in consideration. It is based on

confidence and trust thats why you can set it asaid. However, in labor, you cannot set it asaid, the exclusive bargainingagent.. All individual contracts ceases. Rank and file ka lng but you have a special talent, you dont need an exclusivebargaining agent. Rank and file ka sa PALEA, ikaw loading officer sa eroplano. Bisag brownout o di mugana ang systemkaya nimo loadan ang eroplano kay maayo man ka sa mathematics. Unya muingon ka na kelangan mas taas akong sweldokay mas maayo man akong abilidad sa uban what will determine your pay? The CBA that covers you will determine thepay! It is not you...you cannot bargain. You are with the collective appropriate bargaining unit. You are inside. (Fathediscussed about the communist nation)



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Ang sunod Collective bargaining unit. Appropriate collective bargaining unit. In an unorganized establishment, that is anissue to be determined at first instance. In organized establishment, it is no longer an issue because one of the criteria fothe determination of the appropriate bargaining unit is BARGAINING HISTORY. Since an organized has a bargaininghistory, the next time there is a PCE covering that same organized establishment, the presumption is it is the samebargaining unit. The configuration is the same.

So the issue is what is an organized establishment? Il ask you to read California Manufacturing vs Laguesma 209 SCRA606 1992.

So the first issue to be determined is what is the configuration of the appropriate bargaining unit. After that determinationthe next issue to be determined is, does the bargaining unit decide for representation? and if so who is there representative?How will that be decided? In an election by secret ballot.

Take a look at Rule 8 section 14 as amended, Ground for Denial of the Petition.Ok. You have to know this particular section very well.

First, letter A, the federation or national union is not listed in the roster of unions. Who keeps the roster of unions? It is thebureau of Labor Relations. Take note even if it is a government establishment and you are dealing with government unionor employees organization the list of unions in government is not kept by the CSC, it is still kept by the bureau of laborrelations.

Now, if you are not in the list. That means what? You are a petitioner and your allegation that you are a legitimate labororganization is subject to perjury. Remember it is verified. What do you mean by verified? Example, I am the president othis union that is filing this petition, that I have caused the preparation of this petition. I have read the contents of this petitionand I know that they are true of my own personal knowledge. So how can you escape perjury? Namakak ka na legitimateorganization ka pero wala diay ka sa listahan. That is the requirement of verification. You can be held for perjury. That iswhy that is the only motion to dismiss a PCE that is allowed because it directly contravenes the petition.

Letter B, failure to submit a charter certificate. Which means the one filing is the local chapter, not the federation. Undearticle 231, Registry of unions and file of collective bargaining agreements. You will see there that the bureau shall keep aregistry of legitimate labor organizations. This is the meaning that you are not in the list, article 231 of the labor code. Thelocals are also listed there but sometimes even after the regional office of the department of labor is informed, because theregistry is located in the national capital region, it may take some time. So, if you are the local filing, you attach to the petitiona certified true copy of the charter certificate. It means that it is the local that is filing.

With the federation, how do you allege that you are in the list? You give your registration number. Example, Samahan ngmanggagawa ng pilipinas with registration certificate of such and such, a duly recognized labor federation. Humanpagtanaw sa list wala ka didto, namakak ka, so liable kag perjury. Thats how you catch fly by night operators. Thats whythey require it to be verified.

Remember, there are two who can file on the labor side, the federation or the local. What is the benefit in the filing by thefederation? The advantage is only the president and the officers of the federation sign. The officers and members of thelocal do not sign. So the employer does not know who the members are, the employer cannot pressure or apply compulsionto the members. If it the local who files, what is the advantage? Later on if you win it is the local that has the personality and



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when they enter to a CBA the local can decide what percentage of the union dues will go to the local. But if it the federationwho files, then the federation can determine how much. In the end it is all about money.

Letter C, the third ground. Filing the petition before or after the freedom period of a duly registered collective bargainingagreement. Question, can this petition be from an unorganized establishment? No. For this ground to operate it can only bea PCE filed from an ORGANIZED establishment. Article 256, organized establishment.

So there is narrow window within which you can file a PCE if it is an ORGANIZED establishment. What is that window? THE60 DAYS FREEDOM PERIOD, the last 60 days for collective bargaining. Take a look, it says the collective bargainingagreement shall not be affected by any amendment, extension, or renewal of the CBA. You might be tempted to move the60 day freedom period further. How? Both union and management agree to extend it.

For example, the term is 5 years then they agree to extend it for another 1 year. Even if they agree to extend it for 1 yearthe freedom period remains the original CBA. The last 60 days of the 5 th year. What is the value of the extension? We willater on find out when we go to collective bargaining. But for purposes of certification election, the 60 day freedom period isnot affected. It remains the same.

Letter D, the PCE can be dismissed for Filing of a petition within one year from the date of recording of the voluntary

recognition, or within the same period from a valid certification, consent or run-off election where no appeal on the results ofthe certification, consent or run-off elections is pending. Shortcut ani is within 1 year from the date of publishing the resultsof the certification election, SEALED OFF.

Q: Why is there a 1 year no certification filing rule?This is called the CERTIFICATION YEAR RULE. If the certification election ended with a union being certified as theexclusive bargaining agent, the law would like to give him 1 year to negotiate/conclude a CBA with the employer. If thecertification ended up with no union winning, the law wants to give that workplace a 1 year rest period. That is called the 1year certification period. This applies to both organized and unorganized establishments. This is the only rule of the threerules where you are prohibited to file for PCE, this is the only rule that can apply to UNORGANIZED establishments.

Letter E, Where a duly certified union has commenced and sustained negotiations with the employer in accordance withArticle 250 of the Labor code within the one year period referred to in section 14.d of this rule, or where there exists a



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bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice ofstrike or lockout where an incumbent or certified bargaining agent is a party. This is called the DEADLOCK BAR RULE.

Even if the 1 year certification rule period is consumed but then there is a deadlock, how is the deadlock shown? It is shownby the fact that when either party invokes voluntary arbitration or compulsory arbitration or a declaration of strike. If andwhen that happens no PCE covering that SAME BARGAINING UNIT can be entertained by the med-arbiter. That is called

the deadlock bar rule. It applies only to organized establishments.

Letter F, a PCE can be dismissed on the ground that in an organized establishment, the failure to submit the 25% signaturerequirement to support the filing of the petition for certification election. Take note, if it is an organized establishment andthere is 25% of the bargaining unit signing in support of the petition, the med-arbiter has no discretion to dismiss the PCE. Ifit just filed within the freedom period and the certification year rule does not apply, the deadlock bar rule does not apply thenthe med-arbiter has no choice but to pursue this certification election petition.

Now the question is if there is signature support but it is less 25%, can the med-arbiter entertain the PCE? YES. It is not thatthis should mean that if the signature support is lower than 25% percent, the med-arbiter has no choice but to dismiss-NO! it

just shows that if there is 25% signature support then the med-arbiter has no choice but to accept the petition. Lower thanthat, the med-arbiter has discretion the only time it loses this discretion is when there is 25% signature support.

Letter G, Non-appearance of the petitioner for 2 consecutive scheduled conferences before the med-arbiter despite duenotice. These rules will be changed. You know why? This is not consistent with the nature of a certification election. If thecertification election is non-litigious in character, the moment there is non-appearance then certification should go rightaway, if the law is sincere in finding out the will of the workers. Mao nay makadaot. Sometimes what gives away the nature

of the law is what it does, not what it says. Or In this case what it does not do. So sa ato pa mu apply diay ang failure toprosecute?

Letter H, Absence of employer-employee relationship between all the members of the petitioning union and theestablishment where the proposed bargaining unit is sought to be represented. That is decided not after the declaration ofthe bargaining unit, that is decided earlier. The ER will make a manifestation. There is now an issue here of appropriatebargaining unit because these people are not our employees. Then you litigate, whether there is ER-EE relationship. So the

stage is set for the next part of the proceeding, and what is this? Inclusion and exclusion proceeding. You have determinedwhat the parameters of a bargaining unit are. Let us say regular, daily paid production workers of XYZ corporation. Then yousay ikaw employer ihatag tanan listahan sa employee. Ikaw union ihatag ang listahan sa mga empleyado. Human dili parehoang listahan. Diha magsugod ang lalis. Who are included, who are excluded? That is the next issue to be determined. (END)

DAY 14



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Rule VIII Sec. 15 Prohibited ground for the Denial/Suspension of the Petition. The inclusion as union members ofemployees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Saidemployees are automatically deemed removed from the list of membership of said unions.

Art. 245-A Effect of Inclusion as Members of Employees Outside the Bargaining Unit.The inclusion as union membersof employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Saidemployees are automatically deemed removed from the list of membership of the said union.

We have gone through the grounds for denying the petition for election and then you have Section 15 prohibited grounddenial or suspension of the petition. What is this? The inclusion as union members of employees outside the bargainingunit shall not be a ground for the cancellation of registration of the union said employees are automatically deemed removedfrom the list of membership of that union. That is the by virtue of Art. 245-A which is a new provision introduced by RA 9481

Q: Is this not a disenfranchisement of a union member without due process of law?

You know this particular new provision was introduced by RA 9481 in order to overturn the decision in Toyota vs. Toyotaand the Slazenger case. You know in that case, the union have some managerial and supervisory employees included intheir roster. Now, the RR move to dismiss on the ground that if the roster includes managerial EE who are prohibited from

joining units and they include supervisors who are permitted to exercise their right to self-organization but they must jointheir own union.The argument of the management is the one filing is not a union, it is not a legitimate labor organization. And only a

legitimate labor organization can file a petition for election. That argument was shot down by the Labor Arbiter, was shotdown by the Director of the Bureau of Labor Relations.They went on the Court of Appeals and when they reached to the Supreme Court(SC), the SC said correct! If you havean organization composed of managerial and rank-and-file that is not a union. So the Petition for Certificate Election wasvalidly dismissed.

This new law sought to prevent that because according to the discussion, that problem could have been easily solve in theexclusion and inclusion proceedings. Once there has been declared an appropriate bargaining unit and there is an order foa Petition for Certificate Election has been issued. Then you look at, the employees embraced by the bargaining unit. If youare not there, you are out. You are not covered. So if the managerial EE included in the roster of the union is automaticallyout. Question, if it is managerial, then they have no right to self-organization. What happens if he is not?

Example: Suppose these are production workers, that are daily paid regulars. Those are the parameters of the union. Now

they are also at the same time sales force, in fact they are only part-time production workers. So they belong actually to twokinds of bargaining units. The sales man and in the production. He is there included in the list and the employer says, he isoutside the bargaining unit because he is actually part of the sales force. The solution is automatically he is out. And inwhat right can you say that he is automatically out? Jinngoy Estrada listened to the Labor experts that want a few obstaclesas possible to the certification election, which is always in favour of the union.

The (effect?) of the resolution is this, but on the other hand if they have the right to self-organization and there is a question.As to their belonging to or embraced within the bargaining unit. The (party to dangerous?) would leave it entirely to the lawIf you have a substantial interest to be within a bargaining unit. Because in fact you are receiving a daily regular wage thereas a part-time employee or seasonal employee. Why can you not be embraced? Why are you deemed automatically outThat is the problem, so the solution, I do not know. The SC might still overrule this. We do not know but this is preciselyenacted to overturn the two SC decisions.

Sec. 16 Ancillary Issues All issues pertaining to the existence of employer-employee relationship raised before themediator-arbiter during the hearing(s) and in the pleading shall be resolved in the same order or decision granting ordenying the petition for the certification election.

All issues pertaining to the validity of the petitioning unions certificate of registration or its legal personality as a labororganization, validity of registration and execution of collective bargaining agreements shall be heard and resolved by theRegional Director in an independent petition for cancellation of its registration and not by the mediator arbiter in the

petition for certificate election, unless the petitioning union is not listed in the Departments roster of legitimate labororganizations, or an existing collective bargaining agreement is not registered with the Department.



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It means subordinate issues. This particular provision enunciates the policy of the Bureau of Labor Relations when it comesto Certificate of Election Petitions. That it abhors interlocutory orders. All issues will be settled in the main issue. As toWON to grant , a petition for certificate of election. So the issues of WON there is employer and employee relationship, wonthere is registration, or registration has been cancelled, etc. Or these issues are determined in the overall issue as to WONthe order to hold certificate of election shall be permitted.

So, Section 17 says, Med Arbiter shall release her order or decision granting or denying the petition of the parties on anagreed date and time ten days from the last hearing. The order granting the conduct of the certification election according toSection 18 may be appealed within ten days from a receipt of a copy thereof. The appeal shall be verified and shalconsists a memorandum of appeal specifically stating the grounds relied upon by the appellant with the supportingarguments and evidence.

So the period to appeals is the same as the period to appeal from the labor arbiters decision. And it must already be averified memorandum, memorandum of appeal. Ten days from receipt(calendar days). Now, it becomes 11 if the last day isa holiday. Where do you appeal? It is filed in the Regional Office of the Dept. of Labor and within 24 hours from the receipof the appeal. The Regional Director shall cause the transmittal thereof together with the entire records of the case to theOffice of the Secretary of Labor.

Now, if there is no appeal within the ten day period. The med-arbiter shall enter the finality of the order or decision in the

records of the case and cause the transmittal of the record xx to the regional director. Reply is also ten days from thereceipt of the memorandum. The memorandum of appeal must show proof of service of the memorandum of appeal to theother party. And from the date that a copy of the memorandum received by the other party has ten days. So this mandateof the Med-Arbiter, to send the record of the memorandum of appeal within 24 hours from the receipt of the appeal is neverfollowed. But you are penalized, if you do not submit your appeal on time because the med-arbiter will normally wait for thereply to be appealed. And together if the records are sent up to the Secretary of Labor.

Sec. 22 The Secretary shall have (15) days from receipt of the entire records of the decision within which to decide theappeal. The filing of the memorandum of appeal from the order or decision of the med-arbiter stays the holding of anycertification election.The decision of the Secretary shall become final and executory after ten days from receipt thereof by the parties. Nomotion for reconsideration of the decision shall be entertained.

Now, if it becomes final within 48 hours, the decision of the secretary becomes final if there is no appeal and when itbecomes final within 48 hours from the time the decision becomes final. The records of the case are remitted to theRegional Office for the implementation of the decision and it cannot be stayed unless restrained by the appropriate court.Who is the proper court who could restraint? The Court of Appeals.

Sec. 24Effects of Consent ElectionWhere a petition for certification election had been filed and upon intercession of themed-arbiter the parties agree to hold consent election. The results thereof shall constitute a bar to the holding of acertification election for one year from the holding of such consent election.

Q: What is the definition here of consent election?The consent election is where the parties agreed immediately to hold certificate of election. In other words the first part othe hearing is rendered unnecessary because the employer agrees to the description of the bargaining unit. The petitioneis the agreement with management as to the holding with a certification of election. All other intervenors, they do no

oppose. So everybody agrees no more first part. What do they do? They go to the second part, the Pre- ElectionConference. The exclusion-inclusion proceeding, kinsay apil-kinsay walay apil sa bargaining unit. That is the only time in aconsent election where the description of the bargaining unit in the petition and in order to hold the certificate of election.The description here of the bargaining unit and the certification of the med-arbiter that he has won the election which alsocontains the descrition of the bargaining unit. The three have identical description. That is when you have a consenelection. In other words, these definition of terms found in

Rule 1 book V section sub para. (h),



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(h) Certificate Election or Consent Election refers to the process of determining through secret ballot the sole andexclusive representative of the employees in an appropriate bargaining unit for the purposes of collective bargainingbargaining or negotiation. A certification election is ordered by the Department, while a consent election is vouluntarilyagreed upon by the parties, with or without the intervention by the Department.

This is a wrong definition. If it gives you an impression here that in consent election, that the Dept. of Labor has nothing to

do with it.No! the correct definition is in Sec. 24where the certificate of election has been filed. There is intervention of the Dept. oLabor because the petition has been filed. (H) the certificate election is ordered by the Dept. while the consent election isvoluntary agreed upon by the parties with or without intervention of the Dept. They parties could just agree with or withouintervention of Department and that is already called consent election. That is incorrect the correct definition is in Sec. 24there is a petition filed and the parties do not agree of the appropriate bargaining unit and its parameters and they consenton the holding of a certificate of election. The moment it is a consent. The med-arbiter appropriates the agreement to itseland makes that the decision. So the first part is rendered unnecessary, dili namo mag lalis kung unsay appropriate.

Now, Rule VIII, Sec. 25 Effects of early agreement this is for the purpose of the 60 day freedom period.

Sec. 25 Effects of Early Agreement The representation case shall not be adversely affected by a collective bargainingagreement registered before or during the last sixty days of a subsisting agreement or during the pendency of therepresentation case.

Should the incumbent exclusive bargaining agent. Remember, what is the other name for the incumbent, in relation tocertificate of election? Forced Intervenor. Kanang incumbent dili na naxa mag file ug certificate of election. Llamado na gudna sila. Sila na ang nagtungtung dinha. If the 60 day period expires after 60 days without the petition for election. Its statusas the exclusive bargaining agent is renewed. There is no more petition that is allowed to be entertained covering the samebargaining unit. The moment has expired without any petition for certificate of election, the window from which you can file apetition for a certificate of election is only within that 60 day period. That is for organized establishment. Now, if during yousixty days, the incumbent has entered into a CBA to renew the expiring one. And they concluded with management duringthe 60 day freedom period and register that with the Dept. of Labor.

Q: Can that CBA bar a certification election? Is that the CBA that bars the certificate of election? Sec. 25 says No. Therepresentation case shall not be adversely affected by a collective bargaining agreement registered before or during the las60 days of a subsisting agreement or during the pendency of the representation case.

So during the 60 day freedom period, the petition for certificate of election cannot be denied on the basis of the contract barrule. In Sec. 25 here, they are talking about two CBAs. Why two because there is an amendment. The existing one whichis in its last 60 days. It is a dying CBA. Now, during the 60 day period the contract bar rule, does not apply namely theexisting bargaining agreement does not bar a petition for a certificate of election. Now, any agreements during the 60 dayfreedom period the incumbent enters with the management into a CBA. They register it with the Dept. of Labor.

Can that 2nd CBA bar a petition for certificate of election? Muiingun ka: Wala man ta ni-agi ug election, we only have thecontract that will cover future. wa nah, ayos na. Can that bar? No. The early agreement cannot bar. The right to selforganization freedom period during the last 60 days is superior to the existing contract and to a succeeding contract and thatis concluded. So no petition for certification of election can be barred during the 60 days freedom period on the basis of thecontract bar rule.

Remember I explained to you there are three types when you cannot file a petition for election. First, certification year rule

within one year from and after the results of the certification election. Now, you cannot file a certification election. Whether iis organized or unorganized. Second, Deadlock bar rule, for as long as there is a deadlock between the management andthe union. That is already the exclusive bargaining agent. Let us say at the end of the certification year, there is a deadlockthey are not in an agreement, they are not moving anymore. And sometimes there is already submitted for a voluntaryarbitration or compulsory agreement. Or it is already a subject of notice of strike. There can be no issue of certification oelection that can be entertained. Third is the contract bar rule. For as long as there is an existing severy. No petition focertification election shall be in the same appropriate bargaining unit covered by the same CBA can be entertained by themed-arbiter. Exception: 60 day freedom period. That is the meaning of Sec.25.



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Q: What happens to a challenged vote? There is a procedure.

Rule IX, Section 5. Qualification of Voters; Inclusion-exclusionAll employees who are members of the appropriatebargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of acertification election shall be eligible to vote. An employee who has been dismissed from work but has contested thelegality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of thecertification election shall be considered a qualified voter unless his/her dismissal was valid in a final judgment at the time

of the conduct of the certificate election.In case of disagreement over the voters list over the eligibility of voters, all contested voters shall be allowed to vote. Buttheir votes shall be segregated and sealed in individual envelopes in accordance with Section 10 and 11 of this Rule.

Section 10 is deleted in DO No. 40-F-03Section 11 is amended and enumbered as Section 10 under Rule IX and to read as:

Section 10. Procedure in Challenge of votes. The ballot of the voter who has been properly challenged during the pre-election conferences, shall be placed in an envelope which shall be sealed by Election Officer in the presence of the voterand the representatives of the contending unions. The Election Officer shall indicate on the envelope the voters name,the union challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by theElection Officer and the representatives of the contending union. The Election Officer shall note all challenges in theminutes of the election proceedings and shall have custody of all envelopes containing the challenged votes. Theenvelopes shall be opened by the question of eligibility shall be passed upon by the mediator-arbiter only if the number of

segregated votes will materially alter the results of the election.

Section 5. Qualifications of voters- inclusions and exclusion. Members of the appropriate bargaining unit. This is a mistakeYou Are not a member of the bargaining unit, you are a member of the union or you are a member of the exclusivebargaining agent. A bargaining unit is not an organization, you cannot be a member, you are included or not includedHuna-hunaa ninyo ang bargaining unit, toril na-toril. Kanang kural asa kasudlan sa mga baka, para pagkagabii nay silaykasudlan, para matulog sila dinha. Mao nay Torilsheep fold. The union is an organization, so ypu talk about members onon-members. Nagsulat ani wala kasabot sa iyaha labor relations.. Civil Code and background.

All contested voters, when in doubt you are allowed to vote but votes are segregated. You know exactly how many arecontested. At the end of the election, in the canvassing of the ballot, if the lead of the winner is so big that that even youcount the votes that has been segregated against it are not enough to compensate the lead then there is no need to open. Iit matters then it will be contained in the decision of the med-arbiter proclaiming the results of the election. That is the

election proceedings.

DAY 15

The conduct of certification elections.

There are many parallels to certification election like what you have studied under the omnibus election code on how theelection is conducted. The readying of the precincts, the voters list and here we go through how we go about challenging anissue during the proceedings.

Rule 9, sec. 11: On the Spot Questions - The election officer shall rule on any question relating to and raised during theconduct of the election. In no case, however, shall the election officer rule on any of the grounds for challenge specified in

the immediately preceding section.

Rule 9, section 11 (formerly section 12 but naging section 11 because of the amendment) on the conduct of elections givesthe proper procedure on how to raise an objection or how to raise a question. The election officer shall rule on any questionrelating to and raised during the conduct of the election. In no case, however, shall the election officer rule on any of thegrounds for challenge specified in the immediately preceding section. That is with respect to the right to vote.



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Rule 9, sec. 12: Protest; When Perfected - Any party-in-interest may file a protest based on the conduct or mechanics ofthe election. Such protests shall be recorded in the minutes of the election proceedings.

The protesting party must formalize its protest with the med-arbiter, with specific grounds, arguments and evidence, within5 days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed

period, the protest shall be deemed dropped.

Now, if there are protests according to Rule 9, section 12 any party-in-interest may file a protest based on the conduct ormechanics of the election. Who is the party in interest? Remember the employer is not a party in interest because he is noa party at all. He is a mere bystander. And what is the ideal behaviour of a bystander? It is to leave the election alone. Hecannot do anything to stop it, to discourage it, and he cannot do anything to encourage it. His ideal posture is to do nothingHis ideal posture is just to fold his hands and be a bystander. And you will later on find out in practice that it is more oftenbreached than observed. I still have to see an employer that is completely neutral to an election for the representative of theworkers. There is no such thing, normally But that is what the law requires of the employer, because the issue as towhether or not a bargaining unit wants to be represented and who there representative should be is there own decision.That is the reason.

The employer should not interfere! To interfere means to do something positive or negative. ER should refrain frominterfering. So, only a party in interest can make a protest. It could be any of the contending unions. It could be any

employee included in the bargaining unit. It could be an officer of the federation who is not in ER-EE relationship with thecompany. So, it is not necessary that you have ER-EE relationship for you to be a party in interest. Remember, an employeewhose employment has ceased because he was terminated, and the termination is being questioned, even if it is precedentto the actual elections but if it connected with organizing or exercise of the RTSO and the dismissed employee is questioningthe dismissal and it has not yet been decided with finality then that former employee is a party in interest and he can raise aprotest.

Q: How do raise a protest?First, the protest must be recorded in the minutes of the election proceedings. What is the effect if not recorded in theminutes? The protest is deemed waived. Is this a harsh rule? NO, because if you do not have this rule, you will beencouraging protests and controversies. And as a general rule, a protest must be on substantial reasons. A slight oinsubstantial or incidental question affecting the RTSO of the employee or of the secondary right of the union should not bea ground for protest. Gamay lng sipyat reklamo dayon, dili na mahimo. As much as possible it should be substantial. Tha

why they require it to be recorded.

When you protest you go to the election officer. I am protesting, I will sign in the proceedings, in the records. I will not leaveuntil you record it. What is your protest? You are allowing these people to vote, these people are not employees. Now, isthat all that is required? To record it? No, it says here in the second paragraph of section 12 the protesting party mustformalize its protest with the med-arbiter, with specific grounds, arguments and evidence, within five days after the close ofthe election proceedings. You must formalize it in writing with 5 days after the close of the proceeding. PLEASE TAKENOTE that the meaning of close of proceedings in the certification election is not the same as the close of proceeding in theomnibus election code.

Q: When is there a close of proceeding in the omnibus election code? When there is already a proclamation. The results areout. Because the proclamation of the results is included in the proceeding of the election. Here, 5 days wala pay proclaimedSo it does not include the results of the canvassing of votes.

Rule 9, sec. 13: Canvassing of Votes - The votes shall be counted and tabulated by the election officer in the presence ofthe representatives of the contending unions. Upon completion of the canvass, the election officer shall give eachrepresentative a copy of the minutes of the election proceedings and results of the election. The ballots and the tallysheets shall be sealed in an envelope and signed by the election officer and the representative of the contending unionsand transmitted to the med-arbiter, together with the minutes and results of the election, within 24 hours from thecompletion of the canvass. Where the election is conducted in more than one region, consolidation of results shall bemade within 15 days from the conduct thereof.



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So rule 9, section 13 Canvassing of votes. the votes shall be counted and tabulated by the election officer in the presenceof the representatives of the contending unions. Upon completion of the canvass, the election officer shall give eachrepresentative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheetsshall be sealed in an envelope and signed by the election officer and the representative of the contending unions andtransmitted to the med-arbiter, together with the minutes and results of the election, within 24 hours from the completion ofthe canvass. Where the election is conducted in more than one region, consolidation of results shall be made within 15 days

from the conduct thereof. Sometimes it can be longer like PAL. It might take long for the results to come in. it might eventake more than 1 election day for some areas like tawi-tawi. Once a week lng ang flight. So those are some circumstancesthat are beyond the power of those who are charged to fulfil.

Rule 9, sec. 14: Conduct of election and canvass of votes - The election precincts shall open and close on the date andtime agreed upon during the pre-election conference. The opening and canvass shall proceed immediately after the

precincts have closed. Failure of any party or the employer or his/her/their representative to appear during the electionproceedings shall be considered a waiver to be present and to question the conduct thereof.

Section 14, Conduct of election and canvass of votes the election precincts shall open and close on the date and timeagreed upon during the pre-election conference. The opening and canvass shall proceed immediately after the precinctshave closed. This is important because if the precinct is not closed, then there is no canvassing. Does the precinct closeautomatically because everyone has voted? For example, there was 100% turn-out, everyone already voted but the agreed

time to close has not yet arrived. If there is only one precinct, then no problem. Pwede na iclose. But if there are two omore precincts, the counting must start simultaneously. Otherwise, if one precinct starts counting ahead, the results mighinfluence the votes to be made in the other precints. So there must be uniformity in the closing and canvassing of votes.

Rule 9, sec. 15: Certification of collective bargaining agent -The union which obtained a majority of the valid votes castshall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit withinfive days from the day of the election, provided no protest in recorded in the minutes of the election.

Rule 9, sec. 16: Failure of Election Where the number of votes cast in a certification or consent election is less than themajority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare afailure of election in the minutes of the election proceedings.

Rule 9, sec. 17: Effect of Failure of Election - A failure of election shall not bar the filing of a motion for the immediate

holding of another certification or consent election within 6 months from the date of declaration of failure of election.

Now, section 15, Certification of collective bargaining agent the union which obtained a majority of the valid votes casshall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit withinfive days from the day of the election, provided no protest in recorded in the minutes of the election. So, you have to wait 5days from the cessation of the voting. But if there is no protest recorded in the minutes, you can proclaim right awaybecause you could know the results right away. There is no more possibility of protest because you are deemed to havewaived it if you did not record it in the minutes.

Q: Who wins?It is not plurality votes like the elections in the omnibus election code. In a certification election it must be the MAJORITY OFTHE VALID VOTES CAST. First, there are the votes cast, this is the big set. A subset of that set is valid votes; anothesubset is the invalid votes, and another subset which is the stray votes. Remove the invalid and stray votes what remains is

the valid votes and that is the basis of who wins. If you get the majority of the valid votes cast, you win. Is that the onlycondition? No, there is another condition. Section 17, Effect of failure of election A failure of election shall not bar the filingof a motion for the immediate holding of another certification or consent election within 6 months from the date of declarationof failure of election.

Q: When is there a failure of election? When less than the majority of the eligible voters cast their votes. For a valid electionthere must be at least majority of the eligible voters participation. So, if there are less than the eligible voters whoparticipate, there is failure of election. The med arbiter must declare a failure of election. They must schedule anotheelection. Suppose the majority of the eligible voters participated. And there are at least 3 choices, and none of the choices



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receives a majority of the valid votes cast. What is the result? Run off election. Another election is held between the twochoices with the highest number of votes. Assuming of course that there was a valid election, at least 3 choices, none of thechoices receives a majority of the valid votes cast and the sum total of the votes received by the unions is at least 50% ofthe valid votes cast. Take a look at Rule 10, Run off election.

Q: When is it proper?

Rule 10, section 1 when and election which provides for three or more choices results in none of the contending unionsreceiving a majority of the valid votes cast, and there are no objections or challenges which if sustained can materiallyalter the results, the election officer shall motu propio conduct a run-off election within 10 days from the close of theelections proceedings between the labor unions receiving the two highest number of votes; provided, that the total numberof votes for all contending unions is at least 50% of the number of votes cast. No union shall not be a choice in the run-offelection. Notice of run-off election shall be posted by the election officer at least 5 days before the actual date of run-offelection.

So, those are the conditions of a run-off election. Now, if you are asked are all second elections run-off elections? No,because its not sure because there could have been a failure of election. The first election was no election at all. Youcannot say also that the most number of elections can only be two which is the main election and the run-off, no you cannotsay that!!! Because there could be an invalid election for lack of participation, and then inconclusive election-the second

election, and finally the run-off election. So, those are the requirements.

Rule 9, sec. 21: Appeal; finality of decision. the decision of the med-arbiter may be appealed to the secretary within tendays from receipt by the parties of a copy thereof.The appeal shall be under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied uponby the appellant with the supporting arguments and evidence. Where no appeal is filed within the ten-day period, theorder/decision shall become final and executory and the med-arbiter shall enter this fact into the records of the case.

Section 22: Where to appeal the memorandum of appeal shall be filed in the regional office where the petitionoriginated, copy furnished the contending unions and the employer, as the case may be. Within 24 hours from receipts ofthe appeal, the regional director shall cause the transmittal thereof together with the entire records of the case to the officeof the secretary.

Section 23: Period to reply a reply to the appeal may be filed by any party to the petition within ten days from receipt ofthe memorandum of appeal. The reply shall be filed directly with the office of the secretary.

Section 24: Decision of the Secretary - the Secretary shall have 15 days from receipt of the entire records of the petitionwithin which to decide the appeal. The decision of the secretary shall become final and executory after 10 days fromreceipt thereof by the parties. No motion for reconsideration of the decision shall be entertained

Section 25: Transmittal of records to the Regional Office within 48 hours from notice of receipt of decision by the partiesand finality of the decision, the entire records of the case shall be remanded to the Regional Office of origin for theimplementation of the decision of the secretary and shall not be stayed unless restrained by the appropriate court.

Now, from section 21-25 of Rule 9, that is about appeal. (page 431 of the codal 2009 version) The proclamation being finalcan also be appealed. The proclamation is supposed to end the certification proceeding. And because that is final, you can

now contest it. Who can contest it? Any of the contending unions can contest it. The ER is not supposed to contest itbecause he is not a party. Now, if the employer wants to question the results of the certification election, normally what hedoes is he courses it through one of the contending unions to file the necessary papers because the employer is not a party.

Q: What is policy of automatic certification election?It is a policy adopted by the department of labor and the labor code because of the constitutional bias for the exercise of theRTSO. The constitution favors the exercise RTSO because self organization is the only way by which the employees as aparty can stand on equal footing with the employer. The employer is united and so the employees should also be united asone to stand on equal footing with capital. That is why the constitution has a bias for the exercise of the RTSO.



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The general bias of the labor code is that petitions for certification of elections as much as possible should be given duecourse. If the petition is defective it is not dismissed, it is returned to the one filing to complete the requirements. If a petitionin an UNORGANIZED establishment is sufficient in form and substance with or without supporting signatures from thoseembraced in the bargaining unit, it should be given due course. A certification election should be called as a matter of duecourse. In ORGANIZED establishments, that mean there has been an exclusive bargaining agent, there has been a CBA

filed in the 60 day freedom period timely. If the petition in an organized establishment is duly supported by at least 25% ofthe employees within that bargaining unit then automatically the PCE should be given due course. The med arbiter has nodiscretion to deny the petition.

Q: Is the 25% signature support to be measured solely from the petitioning union? Or is the med arbiter allowed to count aless than 25% signature support with other signature support of motions to intervene by other unions?Yes, if the cumulative signature support is 25% then the med arbiter has no discretion but to grant the PCE. Now, why25%? The law considers as a threshold 25% as substantial doubt as to the continuing representation status of theincumbent exclusive bargaining agent. The allegiance of the bargaining unit is already questionable whether it is still withthe incumbent. Now, if it is not true that the allegiance has shifted, then the incumbent exclusive bargaining agent shouldhave nothing to worry about and continue with the certification election. Usually, the incumbent will argue that their membersdid not know what they were signing and then they will present a signature support stating that they still have the allegianceof the members.

Q: What is the best remedy?Go on with the certification election! Ngano mahadlok man ka ug imo jud na sila then we will see kung asa ang allegiance,whether it is with the incumbent or with the petitioner. Remember when you cannot file a petition: certification year ruledeadlock bar rule, contract bar rule.

There has been a question raised many times. Is a contract of CBA not registered with the department of labor, does it bar apetition for certification? As you would know later a collective bargaining agreement once entered is posted in 2 conspicousplace in the workplace and is supposed to be ratified by the bargaining unit. After it is ratified it is supposed to be registeredto the department of labor and it is the employer who pays the fee of 1,000pesos regardless of the amount of the CBA. Onceregistered it is now considered a certified CBA.

Now, what if for some reason it has not been registered within 30 days after it has been entered to. Does it bar a PCE? Theruling of the Supreme Court is thisif the CBA provides for substantial benefits and it has been accepted, enforced and hasbeen the law of the parties for a considerable time then that CBA will bar a PCE.

Q: How do you know that it is substantial benefits? When it provides for standards higher than what the labor standardsprovides, above labor standards. If it only gives benefits at par with the labor standards then it will not bar a PCE. If it onlygives the same benefits it is called a sweetheart contract, it is a technical term used by the supreme court, it is a specifickind of contract. A sweetheart contract is questionable because why would you enter into a contract which provides benefitsalready afforded for by the law!? Ngano mag hago2x pa man ka? Provided for by the law na man. The union that signs asweetheart contract is otherwise called a company union. You are under the thumb of the employer are there anyquestion? (END)

DAY 16

IRR

(READ) Section 15section article 245-A

"ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as unionmembers of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of theunion. Said employees are automatically deemed removed from the list of membership of said union."



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This is a new provision introduced by Republic Act 9481.

Is this not a disenfranchisement of a union member without due process of law?This new provision was introduced by Republic Act 9481 in order to overturn the decision of the Supreme Court in Toyota vsToyota.

In that case, the union had some managerial and supervisory employees included the roster. The employer moved todismiss on the ground that if the roster of membership includes managerial employees who are prohibited in joining unionsand they included supervisors who are permitted to exercise the right to self-organization but they must join their ownunion, then the argument by the management that the one filing is not a union. It is a legitimate labor organization and onlya legitimate labor organization can file a certification election. That argument was shutdown by the Med-Arbiter. It wasshutdown by the Director of Labor Relations when it was on appeal. HELD: Supreme Court said correct! An organizationcomposed by rank and file and managerial employees is not a union. So the petition for certification election was validlydismissed.

Article 245-A sought to prevent that through inclusion and exclusion proceedings. So if a managerial employee is included inthe roster of the union, he is automatically out.If it is a managerial employee, no problem because he has no right to self-organization. BUT what happens if he is not.Supposed he is a production worker that is daily paid regularly, who is at the same time, a part-time production worker, a

sales man. So he belongs to two kinds of bargaining units with the sales force and with the production. Is he automaticallyout? The solution, I DO NOT KNOW!

Section 16, Ancillary Issues or Subsidiary Issues (READ)

This particular provision enunciates the policy of the Bureau of Labor Relations when it comes to certification electionpetitions, that it abhors interlocutory orders. All issues are settled in the main issue as to whether or not to grant petition forcertification election. So the issue whether there is an EE-ER relationship, whether there is registration or registration hasbeen cancelled, etc. all these issues are determined in the over-all issue as to whether or not the order to hold certificationelection will be granted.

(READ) Section 17The period to appeal is the same as the period for appeal from the Labor Arbiters decision and it must already be a verified

memorandum. Memorandum of Appeal 10 days from the period of appeal. Calendar days. It becomes 11 if the last day is aholiday.Where you appeal? It is filed in the regional office of the Department of Labor and within 24 hours from receipt of the appeal,the Regional Director shall cause the transmittal of the records thereof with the entire case to the Office of the SecretaryLabor.

If there is no appeal within the 10 day period, the Med-Arbiter shall enter the finality of the decision, order in the records ofthe case and cause the transmittal of the records and petition to the Regional Director. Reply is also 10 days from receipt ofthe memorandum of appeal. The memorandum of appeal must show proof of service of memorandum of appeal. You serveother parties or the employer if you are the union or to the union if its the employer appealing the order. And from the datethat the copy of the memorandum is received by the other party, he has 10 days.This mandate of the Med-Arbiter that he sends a record of memorandum of appeal within 24 hours from receipt of theappeal ? But you are penalized if you do not submit your appeal on time because the Med-Arbiter will normally wait for thereply to the appeal.

(READ) Section 22If it becomes final within 48 hours, the decision of the Secretary becomes final if there is no appeal. From the time itbecomes final, the records of the case will be transmitted to the Regional Office for implementation of the decision and thiscannot be stayed unless restrained by the appropriate court. Who is the appropriate court? Court of Appeals

(READ) Section 24 effect of consent election



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Q: What is a consent election? It is one where the parties agree immediately to hold certification election. In other words, thefirst part of the hearing is rendered unnecessary because the employer agrees in a description of the bargaining unit. Thepetitioner is in agreement with the management as to the holding of certification election. All the other intervenors, they donot oppose. Everybody agrees. What do they do? Proceed to the second part - the pre-election conference, the inclusion orexclusion proceedings. That is the only time in a consent election where the description of the bargaining unit from thepetition and the order to hold certification election, the description in the bargaining unit and the certification by the Med-

Arbiter that he has won the election which he so obtains the description of the bargaining unit, the three have identicadescription.

In other words, this definition of terms found in Rule I Book V Section 1 (h) (READ)This is a wrong definition.Certification election is ordered by the Department while a consent election is voluntarily agreed upon by the parties with orwithout intervention by the Department. The parties can just agree without the intervention of the Department and it is aconsent election. That is incorrect. The correct definition is in Section 24. There is a petition that is filed and the parties donot disagree with the appropriate bargaining unit and its parameters and they consent with the holding of the certificationelection. The moment it is consent, the Med-Arbiter appropriates the agreement to itself and makes that the decision. So thefirst part is rendered unnecessary.

(READ) Section 25 Effects of early agreement

This is for purposes of 60-day freedom period.

Q: What is another term for incumbent exclusive bargaining agent in relation to certification election?FORCED INTERVENOR kay naa may laing mofile ug certification election. Dili mana xa mofile ug certification election,llamado na gud xa. If the 60-day freedom period expires after 60 days without petition for certification election, his status asexclusive bargaining agent is renewed. There is no more any petition that is allowed to be entertained covering for that samebargaining unit in an organized establishment.If during that period 60 days, the incumbent has entered into a CBA to renewthe expiring one and they concluded that with the management during the 60 day freedom period and they register that withthe Department of Labor.

Q: CAN THAT CBA BAR A PETITION FOR CERTIFICATION ELECTION? NO!So during the 60 day freedom period, a petition for certification election cannot be denied on the basis of the contract-barrule.Remember, in section 25, there are talking about 2 CBAs.

1. Existing one on its last 60 days, a dying CBA. During the 60 - day freedom period, the contract bar rule does no

apply. Namely that existing collective bargaining agreement does not bar a petition for certification election.

2. During the 60-day freedom period, the incumbent enters with management in a CBA. They register it with theDepartment of Labor. Can that 2nd CBA bar the petition for certification election? NO. The right to self-organization

freedom period of 60 days is a period to the existing contract and to a succeeding contract that is concluded every

year. So no certification election can be barred during the 60-day freedom period on the basis of the contract bar

rule.

Three times you cannot file a certification election1. Certification year rule

- Within one year from and after the results of certification election are announced, you cannot a petition for

certification election, whether the place is organized or unorganized.2. Dead lock bar rule

- For as long as there is a dead lock between the management and union that is already the exclusive bargaining

agent, there is no agreement, they are not moving anymore, there can be no petition for certification election.

3. Contract bar rule

- GR: For as long as there is an existing CBA, no petition for certification election covering the same appropriate

bargaining unit can be entertained.

- Exception: 60 day freedom period



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RULE IX SECTION 1 RAFFLE OF THE CASE(READ)PROVISION SEC 1, 2,So if there is a disagreement between the payroll, records as of the time of the filing that will prevail. (?)If you are absent during the pre-election conference, you waived your right to be heard.(READ) minutes of the pre-election co

2nd Exam Labrel 2012

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