A petition for certification election may be filed anytime, except:
(a) when a fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within the bargaining unit within one (1) year prior to the filing of the petition for certification election. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running of the one year period shall be suspended until the decision on the appeal has become final and executory;
(b) when the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 of the Labor Code within the one year period referred to in the immediately preceding paragraph;
(c) when a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout;
(d) when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 of the Labor Code. Where such collective bargaining agreement is registered, the petition may be filed only within sixty (60) days prior to its expiry.
Comment:
In a PCE the order or decision granting the PCE must be rendered after the freedom period to allow any other qualified union to file a PCE or an intervention. The decision of the med-arbiter to allow or deny a CE is appealable to the SOLE. Note must be taken that an order granting a PCE in an ununionized enterprise is not appealable save that of rule 65.
8 grounds for denial of PCE:
1) non-appearance of the petitioner for 2 consecutive scheduled conference before the med-arbiter despite due notice
2) illegitimacy/unregistered union.
3) Failure of the federation/national union or the local chapter to submit a duly issued charter certificate upon filing of the petition for election
4) Absent of employment relationship 5) Election bar (12 month bar rule)
6) Election bar due to negotiation or deadlock
when the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 of the Labor Code within the one year period referred to in the immediately preceding paragraph; when a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout;
7) Election bar – existing CBA
Filing the petition before or after the freedom period 8) Lack of support
Failure of the petitioning union to submit the 12% signature requirement to support the filing of the PCE
Comment:
With respect to ground number 2, the mere filing of a petition to cancel the certification of an LLO is not sufficient ground to suspend or dismiss a PCE since it is not a prejudicial question as the name entails.
The only instance where the law allows dismissal is if the certification of the union has been revoked or cancelled with finality
Comment:
Once a union has been elected to be the CB agent it must conclude a CBA within the 12 month period otherwise it may be considered as a tool of management. However when the failure to conclude a CBA is not due to the union’s fault but on the employer, the same shall not be a ground to institute another PCE since this form constitute a analogous situation with a deadlock bar.
Exceptions to the 12 month bar
1. When the failure to conclude a CBA was due to the fault of the employer ( the bar may exceed 12 months)
2. When there was a failure of election because less than majority of the CBU voted, in this case another PCE may be granted
3. If there election held was invalid, a new PCA may be granted within the period
4. An election may be granted where a unit of employees newly created by combining employees not previously considered as one unit, hence employees who voted as part of one bargaining unit may find themselves involved in an election encompassing a larger group of employees established as a different CBU.
5. When some of the members of the CBU were not given notice and opportunity to vote in the prior election.
6. The bar does not apply to a unit clarification petition filed during the certification year.
Comment:
The SC ruled that in the case where the “no union” choice won within a CE, subsequently within the 12 month bar the employer recognized a union and concluded a CBA with it constituted a violation of the 12 bar rule under the reasoning that the court highly doubted the independence and probity of the said union.
Comment:
In order for the deadlock bar to come into play the deadlock must be genuine and not a drama. Deadlock is a question of fact
Indicators of a genuine deadlock
1. When the deadlock was submitted to a third party conciliator or arbitrator 2. Where the deadlock is subject to a valid notice of strike or lockout Freedom period vs notice period
The former refers to the 60 day period at the end of the representation provisions in the CBA usually at the end of the 5th year. During the same 60 day period a PCE may be held if warranted by the circumstances. Whereas the notice period of 60 days refers to the period of time where the non-representational provisions is about to expire which usually is on or just before the 3rd year of the CBA. In sum the distinction is the freedom period is viewed as a political event upon which a new BA may be elected by virtue of a PCE whereas the “renegotiation” notice period is an economic activity where the non-representational provisions of the CBA may be amended, repealed or extended dependent on the will of the parties.
Grounds not appropriate to dismiss a PCE 1) Commingling
Since the law automatically removes from the list of members of the CBU those who are not part of the CBU
2) Validity or registration
Since PCE shall continue until the registration of the LLO is deemed invalid by the BLR. Note that the absence of registration is an appropriate ground for dismissal
Comment:
The med-arbiter and the SOLE in deciding the PCE has adequate authority to determine the existence of a E&E relationship since it is an integral part thereof.
Employees who can vote in a CE
1. Employees who are members of the CBU
2. Terminated employees whose termination is still pending litigation 3. Probationary employees
4. Contested employees. However their votes shall be segregated and not counted but sealed in an envelope for determination.
5. Non-members of union.
A contrary stipulation is void since the actual purpose of a CE is to determine the actual will of the majority and if the majority wills the no union choice the same must be respected.
Steps post granting of the PCE
1. The med arbiter shall rule upon the petition stating:
a. The name of the employer or establishment b. The description of the BU
c. Statement that none of the grounds to dismiss as enumerated by law exists d. The names of contending LLO
e. Require a local chapter, if any, to submit to the election officer its certificate of creation otherwise it shall be DQ to participate in the CE
f. A directive upon the Employer and contending unions to submit within 10 days from receipt of order, the certified list of employees in the BU, or where necessary, the payrolls covering the member of the BU for the last 3 months prior to issuance of the order 2. If an appeal has been made, the same must be decided upon prior to the holding of the CE
3. Within 24 hours from receipt of final order, the regional director shall cause the raffle of the case to an election officer who shall have control of the pre-election conference and election proceedings
4. Within w4 hours from receipt by the EO of the assignment he shall cause the issuance of notice of pre-election conference to the contending unions, which shall be scheduled within 10 days from assignment.
5. The pre-election conference shall set the mechanics for the election and determine, among others the following:
a. Date, time and place of the election which must be:
i. Not later than 45 days from the first election conference
ii. On a regular work day within the employer’s premises unless circumstance require otherwise
b. List of eligible voters
c. Number and location of polling booths and number of ballot to be prepared
d. Name of watchers or representative and their alternatives for each of the unions during elections
e. Mechanics and guidelines of the election
6. Failure to attend the pre-election conference shall be deemed a waiver to be present and be heard therein. However such waiver shall not extend to the right of the absent union for future notices 7. Notice of the date of election shall be made at least 10 days prior to the election and posted in at
least 2 conspicuous place within the company premises.
8. The notice shall contain
a. Date and time of elections b. Names of contending unions
c. Description of the bargaining unit and the list of eligible and challenged voters.
Comment:
The EO may rule on matters pertinent to the elections on the same time however he has no authority to rule on the acceptability of the challenged votes which shall be decided upon by the med-arbiter provided that the number of votes will materially alter the results of the election
Protest when filed
Protest based on the conduct of elections shall be recorded in the minutes of the election proceedings.
Protest not so raised are deemed waived. The protesting party must formalize their protest by filing with the med arbiter their protest specifying the grounds, arguments and evidence it has within 5 days from the close of the election proceeding. If not recorded in the minutes and formalized within 5 days thereof, the protest shall be deemed dropped.
Comment:
Failure of election shall result when less than majority of the eligible voters cast their votes in the election.
Effect of Failure of election
A failure of election shall not bar another CE within the period of 6 months provided that it is upon motion by any party to be decided upon within 15 days thereof and that notice of CE shall be made at least 10 days from the date of the elections and posted in at least 2 conspicuous place in the premises of the employer.
Proclamation
Within 24 hours from the final canvass of votes, there being a valid election, the EO shall transmit the records of the case to the Med-Arbiter who shaoll, within the period from receipt of the minutes and results of the election, issue an order proclaiming the results of the election certifying the union which obtained a majority of the valid votes casts as the sole bargaining representative under the following conditions:
1. No valid or perfected protest was filed
2. No challenge or eligibility issue was raised. Even if there was if the said issue is not sufficient to alter the result of the election.
Elements of Run-off election
1. A valid election was held because Majority of the BU casted their votes in the election 2. There are 3 or more contending unions
3. None of the unions received majority of the votes in the election
4. That the total number of votes for all the union is at least 50% of the votes cast.
5. There are no objections nor challenges which if sustained would materially alter the results.
Comment
If all the above is present the EO shall Motu Proprio conduct a run-off election within 10 days from the close of the election proceedings between the labor unions receiving the 2 highest number of votes. “No Union” shall not be a choice in the run-off election. The notice of run-off election shall be made at least 5 days before the actual run-off election.
Comment:
In case there is a tie between the second highest votes all of them as well as the highest voted union shall participate in the run-off election since the contest is not between 2 unions but between the 2 highest votes received.
Consent Election
Is an election to determine who is the appropriate bargaining unit via election voluntarily agreed upon by the contending unions without the intervention of the department. In this situation:
1. Upon filing of the CE, the parties subsequently agreed to hold a consent election. The Med-Arbiter concerned shall enter into the minutes of the hearing or preliminary conference the fact of agreement and then cause the immediate scheduling of the pre-election conference. The minutes should be signed by the unions attested to by the MA.
2. Without filing a CE but upon agreement between the parties seeking intercession by the regional office
The MA shall immediately transmit the record to the director or his authorized representative for the purpose of determination of the EO by raffle in the presence of the unions of they so desire. Then the process shall be the same with a CE.
Rights of the minority union
1) The employer nor the majority union cannot abridge their right to self organization.
2) Right to present grievance to their employer 3) To complain of ULP
Comment:
Retired members may still be represented by the Union in litigation if the basis of their cause of action is the rights given by their CBA or by law during their employment. The SC deems them an employee entitled to the protection of the labor code, for the purpose of prosecuting their claim
GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION Article. 260. Grievance machinery and voluntary arbitration.
The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies.
All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the