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C. Bargaining representative

1. CONCEPTS

Bargaining representative – means a legitimate labor organization or any officer or agent of such organization whether or not employed by the employer. (Article 219 [212] (j), Labor Code)

Exclusive Bargaining Representation – the labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. (Article 267, Labor Code)

2. LOYALTY TO THE EMPLOYEES ALONE

The employees’ bargaining representative should be chosen free from any extraneous influence of the management; that, to be effective, the bargaining representative must owe its loyalty to the employees alone and to no other. (Holy Child Catholic School v. Sto. Tomas, En Banc, G.R. No. 179146, 23 July 2013)

1. Determination of representation status

a. Exclusive Bargaining Representation

The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. However, an individual employee or group of employees shall have the right at any time to present grievances to their employer. (Article 267 [255],Labor Code)

1) Workers’ Participation in Policy and Decision-Making

Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-management councils: Provided, That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. (Paragraph 2, Article 267 [255], Ibid.)

2) Injunction prohibited

No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity, except as otherwise provided in Articles 218 and 264 of this Code. (Article 266 [254], Ibid.)

b. Fundamental Factors in determining collective bargaining unit

1) Globe doctrine

… Will of employees (Holy Child Catholic School v. Sto. Tomas, En Banc, G.R. No. 179146, 23 July 2013)

2) Substantial Mutual Interests Rule

… Affinity and unity of employees’ interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (San Miguel Corporation v. Laguesma, G.R. No. 100485, 21 September 1994)

The test of the grouping is community or mutuality of interest, because “the basic test of an asserted bargaining unit’s acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights.” (Holy Child Catholic School v. Sto. Tomas, supra.)

The test of grouping is mutuality or commonality of interests. The employees sought to be represented by the collective bargaining agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they perform. (San Miguel Corporation v. Laguesma, supra.)

The fact that the three plants are located in three different places, namely, in Cabuyao, Laguna, in Otis, Pandacan, Metro Manila, and in San Fernando, Pampanga is immaterial. Geographical location can be completely disregarded if the communal or mutual interests of the employees are not sacrificed as demonstrated. (San Miguel Corporation Supervisors and Exempt Union v. Laguesma, G.R. No. 110399, 15 August 1997)

3) Prior collective bargaining history

The existence of a prior collective bargaining history is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. (Sta. Lucia East Commercial Corporation v. Secretary of Labor and Employment, G.R. No. 162355, 14 August 2009)

Employees in two corporations cannot be treated as a single bargaining unit even if the businesses of the two corporations are related. (Ibid.)

4) Employment status

… such as temporary, seasonal and probationary employees (Holy Child Catholic School v. Sto. Tomas, supra.)

Employees engaged as casual or day to day basis and have no reasonable basis for continued or renewed employment for any appreciable substantial time — not to mention the nature of work they perform — they cannot be considered to have such mutuality of interest as to justify their inclusion in a bargaining unit composed of permanent or regular employees. (Philippine Land-Air-Sea Labor Union [PALSU] v. CIR, En Banc, G.R. No. L-14656, 29 November 1960)

c. Modes of determining the exclusive bargaining agent

1) 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)

The employer may voluntarily recognize the representation status of a union in unorganized establishments. (Sta. Lucia East Commercial Corporation v. Hon. Secretary of Labor and Employment, G.R. No. 162355, 14 August 2009)

[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. (Ibid.)

2) Certification 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)

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. (Associated Trade Unions [ATU] v. Trajano, G.R. No. 75321, 20 June 1988)

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. (PICOP Resources, Incorporated [PRI] v. Dequilla, G.R. No. 172666, 07 December 2011)

a) 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)

b) 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.)

3) 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.)

d. 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. Representation Issue in Organized Establishments

1) Petition questioning majority status

2) 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.)

f. 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.)

g. 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.)

h. 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.)

i. 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.)

j. Grounds for cancellation

Any of the following may constitute as ground/s 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

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