C. Bargaining representative

Frequency: ★★★★★

1. Modes to acquire status as Sole and Exclusive Bargaining Agent (SEBA)

a. SEBA Certification

Concept: Voluntary recognition. Voluntary recognition – is a mode whereby the employer voluntarily recognizes the union as the bargaining representative of all the members in the bargaining unit sought to be represented. (Lepanto Consolidated Mining Company v. The Lepanto Capataz Union, G.R. No. 157086, 18 February 2013)

Sta. Lucia East Commercial Corporation v. Hon. Secretary of Labor and Employment (August 2009)
The employer may voluntarily recognize the representation status of a union in unorganized establishments.
[The Company] was not an unorganized establishment when it voluntarily recognized SMSLEC as its exclusive bargaining representative on 20 July 2001. CLUP-SLECC and its Affiliates Workers Union filed a petition for certification election on 27 February 2001 and this petition remained pending as of 20 July 2001. Thus, SLECC’s voluntary recognition of SMSLEC on 20 July 2001, the subsequent negotiations and resulting registration of a CBA executed by SLECC and SMSLEC are void and cannot bar CLUP-SLECCWA’s present petition for certification election.

b. Certification/Consent Election

Concept: Certification Election or Consent Election. Certification Election or Consent Election – refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification election is ordered by the DOLE, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the DOLE. (Section 1[i], DOLE Department Order No. 40, Series of 2003)

Associated Trade Unions [ATU] v. Trajano (June 1988)
The certification election is the most democratic forum for the articulation by the workers of their choice of the union that shall act on their behalf in the negotiation of a collective bargaining agreement with their employer. Exercising their suffrage through the medium of the secret ballot, they can select the exclusive bargaining representative that, emboldened by their confidence and strengthened by their support shall fight for their rights at the conference table. That is how union solidarity is achieved and union power is increased in the free society. Hence, rather than being inhibited and delayed, the certification election should be given every encouragement under the law, that the will of the workers may be discovered and, through their freely chosen representatives, pursued and realized.
PICOP Resources, Incorporated [PRI] v. Dequilla (December 2011)
Time and again, we have ruled that we adhere to the policy of enhancing the welfare of the workers. Their freedom to choose who should be their bargaining representative is of paramount importance. The fact that there already exists a bargaining representative in the unit concerned is of no moment as long as the petition for certification election was filed within the freedom period. What is imperative is that by such a petition for certification election the employees are given the opportunity to make known of who shall have the right to represent them thereafter. Not only some, but all of them should have the right to do so. What is equally important is that everyone be given a democratic space in the bargaining unit concerned.

Majority vote of valid votes cast. The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five (5) days from the day of the election, provided no protest is recorded in the minutes of the election.

When the winning choice is a local chapter without a certificate of creation of chartered

local, such local chapter shall submit its DOLE-issued certificate of creation within five (5) days from the conclusion of election. (Section 16, Rule IX, DOLE Department Order No. 40, Series of 2003)

Procedure in case of challenged 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 the Election Officer in the presence of the voter and the representatives of the contending unions. The Election Officer shall indicate on the envelope the voter’s name, the union challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending unions. The Election Officer shall note all challenges in the minutes of the election proceedings and shall have custody of all envelopes containing the challenged votes. The envelopes shall be opened and 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 11, Rule IX, Ibid.)

Concept: Consent election. Consent and certification election are modes whereby the members of the bargaining unit decide whether they want a bargaining representative and if so, who they want it to be. The difference between a consent election and a certification election is that the conduct of a consent election is agreed upon by the parties to the petition while the conduct of a certification election is ordered by the Med-Arbiter. (Lepanto Consolidated Mining Company v. The Lepanto Capataz Union, supra.)

c. Bars to the holding of Certification/Consent Election

Representation Issue in Organized Establishments; Petition questioning majority status; Within 60-day freedom period. In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collective bargaining 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 to ascertain the will of the employees in the appropriate bargaining unit. (Article 268, Labor Code)

To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter’s officers and members. (Ibid.)

At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (Paragraph 2, Article 268, Ibid.)

Petitions in Unorganized Establishments. In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its local/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter’s officers and members. (Article 269, Ibid.)

d. Failure of election, Run-Off Election, Re-run election

Run-off election. A run-off election refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election with three (3) or more choices, where such a certified or consent election results in none of the three (3) or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. (National Union of Workers in Hotels v. Secretary of Labor and Employment, G.R. No. 181531, 31 July 2009)

e. Employer as a mere bystander rule

When an Employer May File Petition. When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. (Article 270, Ibid.)

All certification cases shall be decided within twenty (20) working days. (Paragraph 2, Article 270, Ibid.)

The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor. (Paragraph 3, Article 270, Ibid.)

Employer as Bystander. In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. (Article 271, Ibid.)

The employer’s participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; and (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition. (Paragraph 2, Article 271, Ibid.)

Appeal from Certification Election Orders. Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated. Such appeal shall be decided within fifteen (15) calendar days. (Article 272, Ibid.)

Grounds for cancellation. –

Grounds for cancellation of registration of labor organizations:
1) misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, the list of members who took part in the ratification;
2) misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; or
3) voluntary dissolution by the members. (Section 3, Rule XIV, DOLE Department Order No. 40, Series of 2003)

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BAR EXAM QUESTION

(Question II, Labor Law, 2018 Bar Exam)

Nayon Federation issued a charter certificate creating a rank-and-file Neuman Employees Union. On the same day, New Neuman Employees Union filed a petition for certification election with the Department of Labor and Employment (DOLE) Regional Office, attaching the appropriate charter certificate.

a) The employer, Neuman Corporation, filed a motion to dismiss the petition for lack of legal personality on the part of the petitioner union. Should the motion be granted? (2.5%)

b) The employer likewise filed a petition for cancellation of union registration against New Neuman Employees Union, alleging that Nayon Federation already had a chartered local rank-and-file union, Neuman Employees Union, pertaining to the same bargaining unit within the establishment. Should the petition for cancellation prosper? (2.5%)

SUGGESTED ANSWER:

a) No. Answer

Under the Labor Code, the employer is only a bystander in all cases involving certification election. Otherwise stated, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. Rule

In the case at bar, the employer is only a bystander in the proceedings. It has no right to oppose the petition for certification election. Apply

Thus, the motion should not be granted. Conclusion

b) No. Answer

Under the Labor Code, and DOLE regulations, the grounds for cancellation of union registration are as follows: (a) misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, the list of members who took part in the ratification; (b) misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; or (c) voluntary dissolution by the members. Rule

In the case at bar, the employer’s ground for cancellation is not one of those recognized by the Labor Code and DOLE Regulations. Apply

Thus, the petition for cancellation should not prosper. Conclusion

⦁⦁⦁⦁⦁

BAR EXAM QUESTION

(Question VI, Labor Law, 2018 Bar Exam)

A certification election was conducted in Nation Manufacturing Corporation, whereby 55% of eligible voters in the bargaining unit cast their votes. The results were as follows:

Union Nana : 45 votes

Union Nada: 40 votes

Union Nara : 30 votes

No Union : 80 votes

Union Nana moved to be declared as the winner of the certification election.

a) Can Union Nana be declared as the winner? (2.5%)

b) Assume that the eligibility of 30 voters was challenged during the pre-election conference. The ballots of the 30 challenged voters were placed inside an envelope sealed by the DOLE Election Officer. Considering the said envelope remains sealed, what should be the next course of action with respect to the said challenged votes? (2.5%)

SUGGESTED ANSWER:

a) No. Answer

Under DOLE regulations, to be declared as the winner in a certification election, a union has to obtain a majority of the valid votes cast. Rule

In the case at bar, the total number of votes cast is 195 votes. The majority vote (50% + 1) is at least 99 votes. Union Nana only obtained 45 votes, short of the required majority vote. Apply

Thus, Union Nana cannot be declared as the winner. Conclusion

b) The Election Officer shall indicate on the envelope the voter’s name, the union challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending unions. The Election Officer shall note all challenges in the minutes of the election proceedings and shall have custody of all envelopes containing the challenged votes. The envelopes shall be opened and 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.

⦁⦁⦁⦁⦁

BAR EXAM QUESTION

(Question XI[A], Labor Law, 2017 Bar Exam)

The modes of determining the exclusive bargaining agent of the employees in a business are: (a) voluntary recognition; (b) certification election; and (c) consent election. Explain how they differ from one another. (4%)

SUGGESTED ANSWER:

(a) Voluntary recognition

Voluntary recognition is a mode whereby the employer voluntarily recognizes the union as the bargaining representative of all the members in the bargaining unit sought to be represented.

(b) Certification election v. Consent Election

Consent and certification election are modes whereby the members of the bargaining unit decide whether they want a bargaining representative and if so, who they want it to be.

The difference between a consent election and a certification election is that the conduct of a certification election is ordered by the Med-Arbiter.

(c) Consent Election

The conduct of a consent election is agreed upon by the parties to the petition.

⦁⦁⦁⦁⦁

Disclaimer: All information herein is for educational and general information only intended for those preparing for the bar exam. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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