CERTIFICATION ELECTION (FRAMEWORK) 1. Definition and nature of certification election

1.1 Definition: It is the process of determining the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of collective bargaining. (Sec. [n], Rule I, Book V, Implementing Rules.)

1.2 Nature of certification election: A certification election is not a litigation but merely an investigation of a non-adversarial fact-finding character in which the Bureau of Labor Relations plays the part of a disinterested investigator seeking merely to ascertain the desires of the employees as to the matter of their representation. (Airline Pilots Assn. Of the Philippines vs. CIR, 76 SCRA 274.) 2. Role of Employer during certification elections

General Rule: The employer is not a party in a certification election, which activity is the sole concern of the workers. It is improper for the employer to be present at all during the proceedings, even as an observer, let alone sit and participate therein thru a representative.

Thus, Republic Act No. 9481 explicitly mandates that the employer is to be a BYSTANDER in the certification election proceedings. Hence:

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“Art. 258-A, LC. -- 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. 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”

Exception: Where the employer has to file a petition for certification election pursuant to Art. 258 of the Labor Code because it was requested to bargain collectively. Even then, it becomes a neutral bystander.

3. CERTIFICATION ELECTION AND PROCEDURE

Art. 256-257, LC; BR R5 S1-9, IRR; Dept. Order No. 9 s1-9, Dept. Order No. 40-03 Rule VIII s1-25.

3.1 Who may and where to file petition for CE

B5 R5 S1-2, IRR; Dept Order No. 40-03, R8, secs 1-25

 Who may file: General rule - any legitimate labor organization

Exception – Employer, if requested to bargain collectively and the majority status of the labor organization is questionable

 Where to file: Mediation-Arbitration Branch, through the Regional Office which has jurisdiction over the principal office of the employer. Officer who will hear the petition is called the Med-Arbiter.

 When to file petition for CE

3.3.1 If unorganized establishment (B5 R5 S3-6, IRR)

 Petition for certification election may be filed at any time by a legitimate labor organization

 Note that the 25% signature requirement is not applicable.

Why? Literal interpration of law in favor of labor. The Labor Code merely provides that it may be filed by any legitimate labor organization.

3.3.2 If organized establishment (with existing CBA)

 No duly registered CBA – Petition for certification election may be filed at any time

 With duly registered CBA - only during freedom period (60 days prior to the expiration of the 5-yr representation term of the CBA)

3.2 Denial of the petition; Grounds. – The Med-Arbiter may dismiss the petition on any of the following grounds:

Page | 37 PALS BAR OPS PILIPINAS 2016 o the PETITIONER UNION IS NOT LISTED in the Department’s registry of legitimate labor unions or that ITS LEGAL PERSONALITY HAS BEEN REVOKED OR CANCELLED WITH FINALITY in accordance with Rule XIV of these Rules;

o CONTRACT BAR RULE: the petition was filed before or after the freedom period of a duly registered collective bargaining agreement; provided that the sixty-day period based on the original collective bargaining agreement shall not be affected by any amendment, extension or renewal of the collective bargaining agreement

o ONE YEAR BAR RULE: the petition was filed within one (1) year from entry of voluntary recognition or a valid certification, consent or run-off election and no appeal on the results of the certification, consent or run-off election is pending;

o DEADLOCK BAR RULE: a duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 of the Labor Code within the one-year period referred to in Section 14.c of this Rule, or there exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party

4. REQUIREMENTS FOR VALID CERTIFICATION ELECTION (Dept. Order No.9, Section 12, Rule XIII; Dept Order No. 40-03 Rule 9)

4.1 To have a valid election, a majority of all eligible voters in the appropriate bargaining unit must have CAST their votes (FIRST MAJORITY RULE -- JUST COUNT HOW MANY VOTED).

4.2 The Union obtaining a majority of ALL VALID VOTES cast shall be certified as sole and exclusive bargaining representative of the workers in the appropriate bargaining unit. (SECOND MAJORITY RULE – JUST COUNT IF THERE IS A UNION THAT GARNERED A MAJORITY OF THE VALID VOTES CAST)

4.3 RUN-OFF ELECTION, REQUISITES (Dept. Order No. 9, Rule XIII):

a) There is a valid election (FIRST MAJORITY RULE COMPLIED).

b) Between three or more choices

c) No choice receiving a majority of the valid votes cast (SECOND MAJORITY RULE NOT COMPLIED);

d) The total number of votes for all contending unions is at least 50% of the number of votes cast

e) Between the two labor unions receiving the two highest number of votes.

I. INTER-UNION AND INTRA-UNION DISPUTES (DOLE Dept. Order No. 40-03, series of 2003)

1. WHAT ARE INTER OR INTRA-UNION DISPUTES: (sec 1&2)

Page | 38 PALS BAR OPS PILIPINAS 2016 (a) cancellation of registration of a labor organization filed by its

members or by another labor organization;

(b) conduct of election of union and workers’ association officers/nullification of election of union and workers’ association officers;

(c) audit/accounts examination of union or workers’ association funds;

(d) deregistration of collective bargaining agreements;

(e) validity/invalidity of union affiliation or disaffiliation;

(f) validity/invalidity of acceptance/non-acceptance for union membership;

(g) validity/invalidity of impeachment/expulsion of union and workers association officers and members;

(h) validity/invalidity of voluntary recognition;

(i) opposition to application for union and CBA registration;

(j) violations of or disagreements over any provision in a union or self-organization, union membership and collective bargaining –

(1) between and among legitimate labor organizations;

(2) between and among members of a union or workers’

association.

Other related labor relations disputes shall include any conflict between a labor union and the employer or any individual, entity or group that is not a labor organization or workers’ association. This includes: (1) cancellation of registration of unions and workers associations; and (2) a petition for interpleader.

2. WHAT ARE THE EFFECTS OF PENDENCY OF INTER/INTRA-UNION DISPUTE? (Sec 3)

 PARTIES TO REMAIN STATUS QUO ANTE. -- “The rights, relationships and obligations of the parties litigants against each other and other parties-in-interest prior to the institution of the petition shall continue to remain during the pendency of the petition and until the date of finality of the decision rendered therein. Thereafter, the rights, relationships and obligations of the parties litigants against each other and other parties-in-interest shall be governed by the decision so ordered.

 INTER/INTRA-UNION DISPUTE SHALL NOT BE CONSIDERED PREJUDICIAL QUESTION. -- The filing or pendency of any inter/intra-union dispute and other related labor relations dispute is not a prejudicial question to any petition for certification election and shall not be a ground for the dismissal of a petition for certification election or suspension of proceedings for certification election.

3. WHO MAY FILE INTER OR INTRA-UNION DISPUTE (Sec 4):

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 Any legitimate labor organization or member(s) thereof specially concerned may file a complaint or petition involving disputes or issues enumerated in (a) to (n) of Section 1.

 Any party-in-interest may file a complaint or petition involving disputes or issues regarding cancellation of registration of unions and workers associations; and/or a petition for interpleader

 Where the issue involves the entire membership of the labor organization, the complaint or petition shall be supported by at least thirty percent (30%) of its members.

4. WHERE TO FILE INTER/INTRA-UNION DISPUTES.

4.1 With Regional Office that issued the certificate of registration or certificate of creation of chartered local, for the following complaints --

 Complaints or petitions involving labor unions with independent registrations, chartered locals, workers’ associations, its officers or members

 Petitions for cancellation of registration of labor unions with independent registration, chartered locals and workers association shall be resolved by the Regional Director. He/She may appoint a Hearing Officer from the Labor Relations Division.

 petitions for deregistration of collective bargaining agreements

 Other inter/intra-union disputes and related labor relations disputes shall be heard and resolved by the Med-Arbiter in the Regional Office.

4.2 With Bureau of Labor Relations, for the following complaints --

 Complaints or petitioners involving federations, national or industry unions, trade union centers and their chartered locals, affiliates or member

organizations, its officers or member organizations. (Note, if filed with the Regional Office, the complaint/petition shall stil be heard and resolved by the Bureau).

When two or more petitions involving the same parties and the same causes of action are filed, the same shall be automatically consolidated.