A. Right to self-organization

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

1. Who may join, form, or assist labor organizations or workers’ associations

Coverage. –

All persons employed
in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions,
whether operating for profit or not,
shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining.

Ambulant, intermittent, itinerant, etc. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (Article 253, Labor Code)

a. Supervisory employees

Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors’ union operating within the same establishment may join the same federation or national union. (Article 255, Labor Code)

Concept: Commingling or mixture of membership. The mixed membership does not result in the illegitimacy of the registered labor union unless the same was done through misrepresentation, false statement or fraud according to Article 239 of the Labor Code. (The Heritage Hotel Manila v. Secretary of Labor and Employment, G.R. No. 172132, 23 July 2014)

After a labor organization has been registered, it may exercise all the rights and privileges of a legitimate labor organization. Any mingling between supervisory and rank-and-file employees in its membership cannot affect its legitimacy for that is not among the grounds for cancellation of its registration, unless such mingling was brought about by misrepresentation, false statement or fraud under Article 239 of the Labor Code. (Holy Child Catholic School v. Sto. Tomas, G.R. No. 179146, 23 July 2013)

Since the 1997 Amended Omnibus Rules does not require a local or chapter to provide a list of its members, it would be improper for the DOLE to deny recognition to said local or chapter on account of any question pertaining to its individual members. (Ibid.)

The alleged inclusion of supervisory employees in a labor organization seeking to represent the bargaining unit of rank-and-file employees does not divest it of its status as a legitimate labor organization. (Ibid.)

In case of alleged inclusion of disqualified employees in a union, the proper procedure for an employer like petitioner is to directly file a petition for cancellation of the union’s certificate of registration due to misrepresentation, false statement or fraud under the circumstances enumerated in Article 239 of the Labor Code, as amended. To reiterate, private respondent, having been validly issued a certificate of registration, should be considered as having acquired juridical personality which may not be attacked collaterally. (Ibid.)

Clearly, then, for the purpose of de-certifying a union, it is not enough to establish that the rank-and-file union includes ineligible employees in its membership. Pursuant to Article 239 (a) and (c) of the Labor Code, it must be shown that there was 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, or in connection with the election of officers, minutes of the election of officers, the list of voters, or failure to submit these documents together with the list of the newly elected-appointed officers and their postal addresses to the BLR. (In Re: Petition for Cancellation of the Union Registration of Air Philippines Flight Attendants Association, Air Philippines Corporation v. Bureau of Labor Relations, G.R. No. 155395, 22 June 2006)

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BAR EXAM QUESTION

(Question IX, Labor Law, 2017 Bar Exam)

Section 255 (245) of the Labor Code recognizes three categories of employees, namely: managerial, supervisory, and rank-and-file.

(a) Give the characteristics of each category of employees, and state whether the employees in each category may organize and form unions. Explain your answer. (5%)

SUGGESTED ANSWER:

1) Managerial employees

Managerial employees are those who are vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.

Managerial employees are not eligible to join, assist or form any labor organization.

2) Supervisory employees

Supervisory employees are those who, in the interest of the employer, effectively recommend

such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment.

Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own.

3) Rank-and-file employees

All employees who not managerial employees no supervisory employees are considered rank-and-file employees.

The rank-and-file employees are eligible to join, assist or form any labor organization.

The rank-and-file union and the supervisors’ union operating within the same establishment may join the same federation or national union.

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BAR EXAM QUESTION

(Question XV, Labor Law, 2018 Bar Exam)

Nexturn Corporation employed Nini and Nono, whose tasks involved directing and supervising rank-and-file employees engaged in company operations. Nini and Nono are required to ensure that such employees obey company rules and regulations, and recommend to the company’s Human Resources Department any required disciplinary action against erring employees. In Nextum Corporation, there are two independent unions, representing rank-and-file and supervisory employees, respectively.

a) May Nini and Nono join a union? (2.5%)

SUGGESTED ANSWER:

Yes. Answer

Under the Labor Code, supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. Rule

In the case at bar, Nini and Nono are supervisory employees. They may join, assist, or form a union for supervisory employees. However, Nini and Nono cannot join the union for rank-and-file employees. Apply

Thus, Nini and Non may join a union for supervisory employees, and not for rank-and-file employees. Conclusion

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2. Restrictions as to managerial employees, supervisory employees, confidential employees, employee-members of cooperatives, alien employees, and government employees

Who cannot form unions:
1) Managerial employees;
2) Confidential employees;
3) Employee-members of cooperatives;
4) Alien employees; and
5) Government employees

a. MANAGERIAL EMPLOYEES

Managerial employees are not eligible to join, assist or form any labor organization. (Article 255, Labor Code)

The right to self-organization, however, is subject to certain limitations as provided by law. For instance, the Labor Code specifically disallows managerial employees from joining, assisting or forming any labor union. Meanwhile, supervisory employees, while eligible for membership in labor organizations, are proscribed from joining the collective bargaining unit of the rank and file employees. (Ibid.)

b. CONFIDENTIAL EMPLOYEES

Art. 255 [245] of the Labor Code does not directly prohibit confidential employees from engaging in union activities. However, under the doctrine of necessary implication, the disqualification of managerial employees equally applies to confidential employees. The confidential-employee rule justifies exclusion of confidential employees because in the normal course of their duties they become aware of management policies relating to labor relations. It must be stressed, however, that when the employee does not have access to confidential labor relations information, there is no legal prohibition against confidential employees from forming, assisting, or joining a union. (Sugbuanon Rural Bank, Inc. v. Laguesma, G.R. No. 116194, 02 February 2000)

Concept: Confidential employees. Confidential employees – are defined as those who (1) assist or act in a confidential capacity, in regard (2) to persons who formulate, determine, and effectuate management policies in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee – that is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle the prescribed responsibilities relating to labor relations. The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the “confidential employee rule.” (San Miguel Foods, Incorporated v. San Miguel Corporation Supervisors, G.R. No. 146206, 01 August 2011)

A confidential employee is one entrusted with confidence on delicate, or with the custody, handling or care and protection of the employer’s property. Confidential employees, such as accounting personnel, should be excluded from the bargaining unit, as their access to confidential information may become the source of undue advantage. (Ibid.)

Corollarily, although Article 245 of the Labor Code limits the ineligibility to join, form and assist any labor organization to managerial employees, jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and, hence, are likewise privy to sensitive and highly confidential records. (Ibid.)

Confidential employees are thus excluded from the rank-and-file bargaining unit. The rationale for their separate category and disqualification to join any labor organization is similar to the inhibition for managerial employees, because if allowed to be affiliated with a union, the latter might not be assured of their loyalty in view of evident conflict of interests and the union can also become company-denominated with the presence of managerial employees in the union membership. Having access to confidential information, confidential employees may also become the source of undue advantage. Said employees may act as a spy or spies of either party to a collective bargaining agreement. (Ibid.)

Concept: Doctrine of necessary implication. No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication. The doctrine states that what is implied in a statute is as much a part thereof as that which is expressed. Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis. And every statutory grant of power, right or privilege is deemed to include all incidental power, right or privilege. This is so because the greater includes the lesser, expressed in the Maxim, in eo plus sit, simper inest et minus. (Chua v. Civil Service Commission, G.R. No. 88979, 07 February 1992)

A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer’s property. While Art. 255 [245] of the Labor Code singles out managerial employee as ineligible to join, assist or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified. This doctrine states that what is implied in a statute is as much a part thereof as that which is expressed. (Pepsi-Cola Products, Philippines, Inc. v. Secretary of Labor, G.R. Nos. 96663, 103300, 10 August 1999)

BAR EXAM TIPS
1) The doctrine of necessary implication, which limits the membership of confidential employees to join union, is frequently asked in the bar exam.
2) Take note of the reason why.

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BAR EXAM QUESTION

(Question IX, Labor Law, 2017 Bar Exam)

Section 255 (245) of the Labor Code recognizes three categories of employees, namely: managerial, supervisory, and rank-and-file.

(b) May confidential employees who assist managerial employees, and who act in a confidential capacity or have access to confidential matters being handled by persons exercising managerial functions in the field of labor relations form, or assist, or join labor unions? Explain your answer. (2.5%)

SUGGESTED ANSWER:

No. Under the doctrine of necessary implication, the disqualification of managerial employees equally applies to confidential employees. The exclusion from bargaining units of employees who, in the normal course of their duties, become aware of management policies relating to labor relations is a principal objective sought to be accomplished by the “confidential employee rule.”

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c. EMPLOYEE-MEMBERS OF COOPERATIVES

Cooperatives may become employers. – A cooperative acquires juridical personality upon its registration with the Cooperative Development Authority. It has its Board of Directors, which directs and supervises its business; meaning, its Board of Directors is the one in charge in the conduct and management of its affairs. With that, a cooperative can be likened to a corporation with a personality separate and distinct from its owners-members. (Republic of the Philippines v. ASIAPRO Cooperative, G.R. No. 172101, 23 November 2007)

Republic of the Philippines v. ASIAPRO Cooperative (November 2007)
The question involved here is whether an employer-employee relationship can exist between the cooperative and an owner-member. In fact, a closer look at Cooperative Rural Bank of Davao City, Inc. will show that it actually recognized that an owner-member of a cooperative can be its own employee.
It bears stressing, too, that a cooperative acquires juridical personality upon its registration with the Cooperative Development Authority. It has its Board of Directors, which directs and supervises its business; meaning, its Board of Directors is the one in charge in the conduct and management of its affairs. With that, a cooperative can be likened to a corporation with a personality separate and distinct from its owners-members. Consequently, an owner-member of a cooperative can be an employee of the latter and an employer-employee relationship can exist between them.
In the present case, it is not disputed that the respondent cooperative had registered itself with the Cooperative Development Authority, as evidenced by its Certificate of Registration No. 0-623-2460. In its by-laws, its Board of Directors directs, controls, and supervises the business and manages the property of the respondent cooperative. Clearly then, the management of the affairs of the respondent cooperative is vested in its Board of Directors and not in its owners-members as a whole. Therefore, it is completely logical that the respondent cooperative, as a juridical person represented by its Board of Directors, can enter into an employment with its owners-members.
In sum, having declared that there is an employer-employee relationship between the respondent cooperative and its owners-member, we conclude that the petitioner SSC has jurisdiction over the petition-complaint filed before it by the petitioner SSS. This being our conclusion, it is no longer necessary to discuss the issue of whether the respondent cooperative was estopped from assailing the jurisdiction of the petitioner SSC when it filed its Answer with Motion to Dismiss.

Members of cooperatives as employees; Prohibited from collective bargaining. The right to collective bargaining is not available to an employee of a cooperative who at the same time is a member and co-owner thereof. With respect, however, to employees who are neither members nor co-owners of the cooperative they are entitled to exercise the rights to self-organization, collective bargaining and negotiation as mandated by the 1987 Constitution and applicable statutes. (Benguet Electric Cooperative, Inc. v. Ferrer-Calleja, G.R. No. 79025, 29 December 1989)

Cooperative Rural Bank of Davao City, Inc. v. Ferrer-Calleja (September 1988)
A cooperative, therefore, is by its nature different from an ordinary business concern, being run either by persons, partnerships, or corporations. Its owners and/or members are the ones who run and operate the business while the others are its employees x x x.
An employee therefore of such a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his co-owners. In the opinion of August 14, 1981 of the Solicitor General he correctly opined that employees of cooperatives who are themselves members of the cooperative have no right to form or join labor organizations for purposes of collective bargaining for being themselves co-owners of the cooperative.
However, in so far as it involves cooperatives with employees who are not members or co-owners thereof, certainly such employees are entitled to exercise the rights of all workers to organization, collective bargaining, negotiations and others as are enshrined in the Constitution and existing laws of the country.

Same; Due to fact of ownership, and not whether part of the management. –

Benguet Electric Cooperative, Inc. v. Ferrer-Calleja (December 1989)
Contrary to respondents’ claim, the fact that the members-employees of petitioner do not participate in the actual management of the cooperative does not make them eligible to form, assist or join a labor organization for the purpose of collective bargaining with petitioner. The Court’s ruling in the Davao City case that members of cooperative cannot join a labor union for purposes of collective bargaining was based on the fact that as members of the cooperative they are co-owners thereof. As such, they cannot invoke the right to collective bargaining for “certainly an owner cannot bargain with himself or his co-owners.”  It is the fact of ownership of the cooperative, and not involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative. Thus, irrespective of the degree of their participation in the actual management of the cooperative, all members thereof cannot form, assist or join a labor organization for the purpose of collective bargaining.
Respondent union further claims that if nominal ownership in a cooperative is “enough to take away the constitutional protections afforded to labor, then there would be no hindrance for employers to grant, on a scheme of generous profit sharing, stock bonuses to their employees and thereafter claim that since their employees are not stockholders [of the corporation], albeit in a minimal and involuntary manner, they are now also co-owners and thus disqualified to form unions.” x x x
The above contention of respondent union is based on the erroneous presumption that membership in a cooperative is the same as ownership of stocks in ordinary corporations. While cooperatives may exercise some of the rights and privileges given to ordinary corporations provided under existing laws, such cooperatives enjoy other privileges not granted to the latter. Similarly, members of cooperatives have rights and obligations different from those of stockholders of ordinary corporations. It was precisely because of the special nature of cooperatives, that the Court held in the Davao City case that members-employees thereof cannot form or join a labor union for purposes of collective bargaining.

Withdrawal of cooperative membership, allowed. –

CENECO v. DOLE, CURE (September 1991)
The issue, therefore, actually involves a determination of whether or not the employees of CENECO who withdrew their membership from the cooperative are entitled to form or join CURE for purposes of the negotiations for a collective bargaining agreement proposed by the latter. x x x
The argument of CENECO that the withdrawal was merely to subvert the ruling of this Court in the BATANGAS case is without merit. The case referred to merely declared that employees who are at the same time members of the cooperative cannot join labor unions for purposes of collective bargaining. However, nowhere in said case is it stated that member-employees are prohibited from withdrawing their membership in the cooperative in order to join a labor union.
As discussed by the Solicitor General, Article I, Section 9 of the Articles of Incorporation and By- Laws of CENECO provides that “any member may withdraw from membership upon compliance with such uniform terms and conditions as the Board may prescribe.” The same section provides that upon withdrawal, the member is merely required to surrender his membership certificate and he is to be refunded his membership fee less any obligation that he has with the cooperative. There appears to be no other condition or requirement imposed upon a withdrawing member. Hence, there is no just cause for petitioner’s denial of the withdrawal from membership of its employees who are also members of the union.
Membership in an electric cooperative which merely vests in the member a right to vote during the annual meeting becomes too trivial and insubstantial vis-a-vis the primordial and more important constitutional right of an employee to join a union of his choice. Besides, the 390 employees of CENECO, some of whom have never been members of the cooperative, represent a very small percentage of the cooperative’s total membership of 44,000. It is inconceivable how the withdrawal of a negligible number of members could adversely affect the business concerns and operations of CENECO.

d. ALIEN EMPLOYEES

Alien employees. Alien employees with valid working permits issued by the Department may exercise the right to self-organization and join or assist labor unions for purposes of collective bargaining if they are nationals of a country which grants the same or similar rights to Filipino workers, as certified by the Department of Foreign Affairs. (Section 2, Rule II, DOLE D.O. 40, Series of 2003, cited in Samahan ng Manggagawa sa Hanjin Shipyard v. Bureau of Labor Relations, G.R. No. 211145, 14 October 2015)

e. GOVERNMENT EMPLOYEES

Government employees. Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. (Article 254, Ibid.)

Government employees have the right to self-organization. It is not, however, regarded as existing or available for purposes of collective bargaining, but simply for the furtherance and protection of their interests. (Samahan ng Manggagawa Sa Hanjin Shipyard v. BLR, Hanjin Heavy Industries and Construction Co., Ltd., G.R. No. 211145, 14 October 2015)

3. Determination of appropriate bargaining unit (ABU), effect of inclusion of employees outside of the ABU

Union v. Labor Organization. The concepts of a union and of a legitimate labor organization are different from, but related to, the concept of a bargaining unit. (Holy Child Catholic School v. Sto. Tomas, G.R. No. 179146, 23 July 2013)

Bargaining unit. Bargaining unit – refers to a “group of employees of a given employer, comprised of all or less than all of the entire body of employees, which the collective interests of all the employees, consistent with equity to the employer, indicated to be best suited to serve reciprocal rights and duties of the parties under the collective bargaining provisions of the law.” (Holy Child Catholic School v. Sto. Tomas, supra.)

Labor organization. Labor organization – means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. (Article 219 [212] (g), Labor Code)

Legitimate labor organization. Legitimate labor organization – means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. (Article 219 [212] (h), Labor Code)

Bargaining representative. 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. 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)

Company union. Company union – means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. (Article 219 [212] (i), Labor Code)

a. DETERMINATION OF REPRESENTATION STATUS

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)

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)

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.)

b. FACTORS IN DETERMINING COLLECTIVE BARGAINING UNIT

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

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.

2) Certification 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.)

3) Consent election

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.)

BAR EXAM TIPS
1) Voluntary recognition, certification election, consent election, and run-off election are moderately asked in the bar exam.
2) Make sure you are familiar with the concepts and their requirements.

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)

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.)

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)

⦁⦁⦁⦁⦁

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

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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.

⦁⦁⦁⦁⦁

4. Non-interference with workers’ rights to self-organization

a. By the employer

Unfair labor practices of employers’ interefering with workers’ right to self-organization.  It shall be unlawful for an employer to commit any of the following unfair labor practices… to interfere with, restrain or coerce employees in the exercise of their right to self-organization. (Article 259[a], P.D. 442, Labor Code)

Same; Necessarily includes the right to collective bargaining. Article 248(a) of the Labor Code, considers it an unfair labor practice when an employer interferes, restrains or coerces employees in the exercise of their right to self-organization or the right to form association. The right to self-organization necessarily includes the right to collective bargaining. (Standard Chartered Bank Employees Union (NUBE) v. Confesor, G.R. No. 114974, 16 June 2004)

Same; Interference – results in unfair labor practice. Parenthetically, if an employer interferes in the selection of its negotiators or coerces the Union to exclude from its panel of negotiators a representative of the Union, and if it can be inferred that the employer adopted the said act to yield adverse effects on the free exercise to right to self-organization or on the right to collective bargaining of the employees, ULP under Article 248(a) in connection with Article 243 of the Labor Code is committed. (Ibid.)

Same; Same; Substantial evidence. In order to show that the employer committed ULP under the Labor Code, substantial evidence is required to support the claim. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.48 In the case at bar, the Union bases its claim of interference on the alleged suggestions of Diokno to exclude Umali from the Union’s negotiating panel. (Ibid.)

Standard Chartered Bank Employees Union (NUBE) v. Confesor (June 2004)
The circumstances that occurred during the negotiation do not show that the suggestion made by Diokno to Divinagracia is an anti-union conduct from which it can be inferred that the Bank consciously adopted such act to yield adverse effects on the free exercise of the right to self-organization and collective bargaining of the employees, especially considering that such was undertaken previous to the commencement of the negotiation and simultaneously with Divinagracia’s suggestion that the bank lawyers be excluded from its negotiating panel.
The records show that after the initiation of the collective bargaining process, with the inclusion of Umali in the Union’s negotiating panel, the negotiations pushed through. The complaint was made only on August 16, 1993 after a deadlock was declared by the Union on June 15, 1993.
It is clear that such ULP charge was merely an afterthought. The accusation occurred after the arguments and differences over the economic provisions became heated and the parties had become frustrated. It happened after the parties started to involve personalities. As the public respondent noted, passions may rise, and as a result, suggestions given under less adversarial situations may be colored with unintended meanings.49 Such is what appears to have happened in this case.
Bankard, Inc. v. NLRC, Buencosejo (March 2013)
Contracting out of services is an exercise of business judgment or management prerogative. Absent any proof that management acted in a malicious or arbitrary manner, the Court will not interfere with the exercise of judgment by an employer. Furthermore, bear in mind that ULP is punishable with both civil and/or criminal sanctions. As such, the party so alleging must necessarily prove it by substantial evidence. The Union, as earlier noted, failed to do this. Bankard merely validly exercised its management prerogative. Not shown to have acted maliciously or arbitrarily, no act of ULP can be imputed against it.

b. By the labor organization

Unfair labor practices of labor organizations to restrain or coerce employees in their exercise of their right to self-organization. It shall be unfair labor practice for a labor organization, its officers, agents or representatives… to restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own  rules with respect to the acquisition or retention of membership; (Article 260[a], P.D. 442, Labor Code)

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Subjects

Political Law, Labor Law

G. Executive clemency

Frequency: ★★★☆☆ | Probability: ★★★☆☆ 1. Forms and limitations General Rules: 1) The President may grant reprieves, commutations and pardons, and remit fines and forfeitures,

D. Crimes against public interest

Frequency: ★★★☆☆ CHAPTER 1: FORGERIES SECTION 1 – FORGING THE SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISILANDS, THE SIGNATURE OR STAMP OF THE CHIEF

1. Criminal liabilities and felonies

Frequency: ★★★★★ FELONIES: Acts and omissions punishable by law are felonies (delitos). (Article 3, Act No. 3815, Revised Penal Code) DOLO; CULPA: Felonies are committed

J. Crimes against chastity

Frequency: ★★★★★ COMMON PROVISIONS 1) Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness The crimes of adultery and concubinage

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