LABOR RELATIONS PART 1
RIGHT TO SELF-ORGANIZATION 7 CARDINAL RIGHTS OF WORKERS (1987 Const., Art. 13, Sec. 3)
(1) self-organization
(2) collective bargaining and negotiations
(3) peaceful concerted activities, including the right to strike in accordance with law (4) security of tenure
(5) humane conditions of work (6) a living wage
(7) participate in policy and decision-making processes affecting their rights and benefits as may be provided by law
COVERAGE OF RIGHT TO SELF-ORGANIZATION [Art. 243-245, 269; DO 40-03 (Rules Implementing Book V)]
• All persons may organize for a lawful purpose but not all may form labor unions (i.e., forming or joining labor organizations for the purpose of collective bargaining)
• The right to self-organization includes the right not to exercise it. An employee may, as he pleases, join or refrain from joining an association. (Reyes v. Trajano, 1992)
Q: Do workers have a right not to join a labor organization? Suggested answer:
Yes, when workers decide whether they will or will not become members of a labor organization. That is why a union’s constitution and by-laws need the members’ adoption and ratification. Moreover, if they are members of religious group whose doctrine forbids union membership, their right not to be compelled to become union members has been upheld. However, if the worker is not a “religious objector” and there is a union security clause, he may be required to join the union if he belongs to the bargaining unit. (Reyes v. Trajano) (2000 Bar Question)
Q: Mang Bally, owner of a shoe repair shop with only 9 workers in his establishment, received proposals for collective bargaining from the Bally Shoe Union. Mang Bally refused to bargain with the workers for several reasons. First, his shoe business is just a service establishment. Second, his workers are paid on a piecework basis (ie per shoe repaired) and not on a time basis. Third, he has less than 10 EEs in the establishment. Which reason or reason/s is/are tenable? Explain briefly.
None. First, Mang Bally’s shoe business is a commercial enterprise, albeit a service establishment. Second, the mere fact that the workers are paid on a piece-rate basis does not negate their status as regular EEs. Payment by piece is just a method of compensation and does not define the essence of the relation. [Lambo v. NLRC, 317 SCRA 420 (1999)]. Third, the EEs’ right to self organization is not delimited by their number.
The right to self-organization covers all persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions whether operating for profit or not. [Art. 243, LC] (2002 Bar Question)
General Rule (To whom the right is available)
Right Purpose
All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit
form, join, or assist labor orgs of their own choosing Collective bargaining
Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers Ambulant— moving about,
form
labor orgs Mutual aid and protection and other
legitimate purposes other than collective
“palipat-lipat” Intermittent— temporary
Itinerant— travels from place to place
bargaining
Specific EEs With Right to Self-Organization for purposes of collective bargaining (1) Government EEs
(a) For govt EEs of govt corps established under the Corp. Code (LC governs them)— right to organize and bargain collectively
(b) For EEs of all branches ,subdivisions, instrumentalities of govt, including GOCCs with original charters from Congress—EO 180 governs them
EXECTUIVE ORDER 180 (June 1, 1987)
Applies to all EEs of all branches, subdivisions, instrumentalities and agencies of the government including EEs of GOCCs with original charters
Rights
(1) can form, join or assist EEs’ organizations for furtherance and protection of interest (2) can engage in concerted activities, including the right to strike
(3) may negotiate collective negotiation agreements (CNA) or memorandum of agreement (MOA) with their ERs
Limitations
(1) the concerted activities must be exercised in accordance with law, i.e., subject to Civil Service Law and rules and any legislation that may be enacted by Congress
(2) negotiations should only involve terms and conditions of employment that are not fixed by law (3) the resolution of complaints, grievances, and cases involving government EEs is not ordinarily
left to collective bargaining or other related concerted activities but to Civil Service Law and labor laws and procedures whenever applicable
(4) in case any dispute remains unresolved after exhausting all available remedies under existing laws and procedures, the parties may jointly refer the dispute to the Public Sector Labor-Management Council (the EO provided for the composition of this) for appropriate action Employees’ Org
• The appropriate organizational unit is the unit consisting of rank-and-file EEs unless circumstances otherwise require
• Govt EEs organizations shall register with the CSC and the BLR
• The duly registered EEs’ organization having the majority support of the EEs in the appropriate organizational unit shall be designated as the sole and exclusive representative of the EEs
Not Covered
(1) High-level EEs (those whose functions are policy-making or managerial or highly-confidential cannot join the org of rank-and-file EEs)
(2) AFP
(3) Police officers (4) Policemen (5) Firemen (6) Jailguards
• BUT Memorandum Circular No. 6 of CSC, dated April 21, 1987, enjoins strikes by government officials and EEs (Arizala v CA, 1990)
Thus, to sum up the government EEs covered by EO 180: (1) may organize and unionize
by law)
(3) they cannot strike
Q: How does the government employees’ right to self-organization differ from that of the employees in the private sector?
Suggested Answer:
There is no substantial difference of the right of self-organization between workers in the private sector and those in the public sector. In the public sector, Executive Order No. 180, the purpose of self-organization is stated as “for the furtherance and protection of their interest.” In the private sector, Art 243 o the Labor Code states “for the purpose of collective bargaining”, and “for the purpose of enhancing and defending their interests and for their mutual aid and protection.”
Alternative Answer:
In government, managerial employees shall no be eligible to join the organization of rank and file employees per EO 180 but said law does not provide that they are not eligible to join, assist, or form any labor organization, meaning they could join, assist of form any labor organization of their own. In the private sector, managerial employees are not eligible to join, assist, or form any labor organization. (See At. 243, LC and Sec. 3, EO 10) (1996) (1996 Bar Question)
(2) Supervisory EEs [Art. 245; Art. 212 (m)]— those who, in the interest of the employer (a)Effectively recommends such managerial actions
(b) If the exercise of such authority is not merely routinary or clerical in nature (c)But requires the use of independent judgment.
• What determines the nature of employment is not the employee's title, but his job description. • Supervisory employees shall—NOT be eligible for membership in a labor organization of the
rank-and-file employees but may join, assist or form SEPARATE labor organizations of their own. • To maintain the segregation, a supervisor’s union is not allowed to affiliate with the same
federation as that of the rank-and-file union under these conditions:
(1) The rank-and-file EEs are directly under the authority of the supervisory EEs
(2) The national federation is actively involved in union activities in the company (Atlas Lithographic v. Laguesma, 1992; De la Salle University Medical Center v. Laguesma, 1998)
(3) Aliens (Art. 269)—Aliens, generally, have no right to self organize for purpose of collective bargaining unless (the following must concur):
(a)They have valid permits issued by DOLE; and
(b) That said aliens are nationals of a country which grants the same or similar rights to Filipino workers (reciprocity
(4) Security Guards
• EO 111 has eliminated the disqualification of security guards from forming labor unions.
• They may now join a rank-and-file organization or that of the supervisory union, depending on their rank. (Manila Electric v. Sec. of Labor, 1997)
Q: Do the following workers have the right to self-organization? Reasons/ basis 1. employees of non-stock, non-profit organizations?
2. alien employees? Suggested Answer:
1. Even EEs of non-stock, non-profit organizations have the right to self-organization. This is explicitly provided for in Art 243 of the Labor Code.
A possible exception, however, are EE members of non-stock, non-profit cooperatives.
2. Alien EEs with valid work permits in RP may exercise the right to self-organization on the basis of parity or reciprocity, that is, if Filipino workers in the alien’s country are given the same right. (Art 269, LC) (2000 Bar Question)
Workers Without Right to Self-Organization For purposes of collective bargaining (1) Managerial Employees [Art. 245; Art. 212 (m)]
- one who is vested with powers or prerogatives
a. To lay down and execute management policies and/ or
b. To hire , transfer, suspend, layoff, recall, discharge, assign, or discipline employees - NOT eligible to join, assist or form any labor organization
• “labor organization” is a technical term
• it is formed for the purpose of collective bargaining concerning terms and conditions or dealing with employment concerning terms and condition of employment
• Hence, managerial EEs are not prohibited from forming an association
- The prohibition of unionization of managerial EEs does not violate the Phil. Consti. (UPSU v. Laguesma, 1998)
- National Sugar Refineries Corp v NLRC (1993)
› the definition of a managerial employee in Labor relations [Art. 212 (m)] is not exactly the same as the definition under labor standards (Art. 82).
› Art. 82 is much broader in scope than Art. 212 (m).
› It was held that for purposes of forming and joining unions, certification elections, collective bargaining, supervisory EEs are considered not managerial EEs hence they can unionize.
› However, in terms of working conditions and rest periods and entitlement to the questioned benefits, they are officers or members of the managerial staff (which are managerial EEs per Art. 82,) hence they are not entitled thereto.
- Who are rank-and-file EEs? EEs who are not managerial nor supervisory EEs.
Q: A, B, C and D (treasurer, accountant, elementary department Principal, and secretary of the Director, respectively), regular employees of a private educational institution, were administratively charged for their participation in a picket held in front of the campus after office hours. Several faculty members, non-academic staff and students joined the peaceful prayer rally organized by the disgruntled employees to protest certain alleged abuses of the incumbent school director. Subsequently, the rank and file employees succeeded in forming the first and only union of the School.
During the investigation, the administration discovered that two (2) days prior to the rally, A, B, C and D attended the meeting of the School’s employees’ association which planned the protest activity. Two well-known organizers/leaders of a national federation were also present.
A, B, C and D were dismissed by the School on the ground of violating the Labor Code which prohibits managerial employees to “join, assist, or form any labor organization.”
Is the contention of the School tenable? Is the dismissal of A, B, C and D valid? Explain. Suggested Answer:
The dismissal of A, B, C and D on the ground that they violated the Labor Code provision which states that managerial employees “are not eligible to join, assist or form any labor organization” is not valid. The Labor Code doe not provide for any sanction for the aforesaid acts. These acts could not be considered as just cause for the termination of employment, either.
Another Suggested Answer:
The dismissal of the management employees because of union activities, no matter how erroneous or tenuous may be the basis for the exercise, is a violation of the constitutional and statutory guaranteed rights of self-organization and an act of unfair labor practice. (Sec. 3, Art. XIII, Constitution; Art. 243, LC. See also Art. 248(a), LC). (2004 Bar Question)
(2) Confidential EEs --those who:
(a)Assist or act in a fiduciary capacity
(b) 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 superior officer and that the superior officer must handle the prescribed responsibilities relating to labor relations (if not labor relations, then not confidential EE).
Sugbuanon Rural Bank vs. Laguesma, (2000)
› Art. 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.
Note: An EE may not be excluded from appropriate bargaining unit merely because he has access to confidential information concerning employer’s internal business operations and which is NOT RELATED to the field of labor relations. If access is merely incidental, you cannot classify them as confidential employees. Thus a phone operator or driver cannot be classified as a confidential employee for the purpose of excluding them from joining a union. It is the policy of the law to encourage self-organization, thus if you have to limit it, the limitation must strictly be construed and well justified.
Q: Malou is the Executive Secretary of the Senior Vice-President of a bank while Ana is the Legal Secretary of the bank’s lawyer. They and other executive secretaries would like to join the union of rank and file EEs of the bank. Are they eligible to join the union? Why? Explain briefly.
Suggested Answer:
The following rules will govern the right of self-organization of Malou, Ana, and the other Executive Secretaries:
1. No right to self-organization – confidential EE who act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor-management relation. The two criteria are cumulative and both must be met. [San Miguel Corporation Union v. Laguesma, 277 SCRA 370 (1997)]
2. With right to self-organization – when the EE does not have access to confidential labor relations information, there is no legal prohibition against confidential EEs from forming, assisting, or joining a labor organization. [Sugbuanon Rural Bank, Inc. v Laguesma, 324 SCRA 425 (2000)]
No right of self-organization for Legal Secretaries – Legal Secretaries fall under the category of confidential EEs with no right to self-organization. [Pier & Arrastre Stevedoring Services, Inc. v. Confessor, 241 SCRA 294 (1995)]
(2002 Bar Question)
(3) Workers-Members of a Cooperative
Cooperative— is an organization composed of small producers and of consumers who voluntarily join together to form business enterprises which they themselves, own, control and patronize. (PD 175)
(a) An employee of such a cooperative who is a member and co-owner— no right to collective bargaining because an owner cannot bargain with himself or co-owners. (BENECO v. Ferrer-Calleja, 1989)
(b) Employees who are NOT members or co-owners— such employees are entitled to exercise the rights of all workers to organization, collective bargaining negotiations, and others. (San Jose Electric Service Coop. v. Min. of Labor, 1989)
Q: Do EEs of a cooperative have a right to form a union? Explain briefly. Suggested Answer:
EEs who are members of a cooperative cannot form a union because, as members, they are owners and owners cannot bargain with themselves. However, EEs who are not members of a cooperative can form a union. [San Jose Electric Service Cooperatiev v. Ministry of Labor (1989)] (2002 Bar Question)
(4) Employees of International Organizations
Certain international organizations, such as the Intl Rice Research Institute (IRRI) and the Intl Catholic Migration Commission (ICMC), are by their charters given a grant of immunity from legal processes and thus are beyond the jurisdiction of the DOLE. A certification election cannot be conducted in these international orgs.
(5) Non-Employees
- If there is no ER-EE relationship, then there is no right to collective bargaining
- but they still have the right to organize since this right is constitutionally protected, only that they cannot organize for the purpose of collective bargaining.
Q: FACTS: Solar Plexus Bar and Night Club allowed by tolerance 50 Guest Relations Officers (GROs) to work without compensation in its establishment under the direct supervision of its Manager from 8:00pm to 4:00am everyday, including Sundays and Holidays. The GROs, however, are free to ply their trade elsewhere anytime but once they enter the premises of the night club, they are required to stay up to closing time. The GROs earned their keep exclusively from commissions for food and drinks, and tips from generous customers. In time, the GROs formed the Solar Ugnayan ng mga Kababaihang Inaapi (SUKI), a labor union duly registered with the DOLE. Subsequently, SUKI filed a petition for certification election in order to be recognized as the exclusive bargaining agent of its members. Solar Plexus opposed the petition for certification election on the singular ground of absence of ER-EE relationship between th GROs on the one hand and the night club on the other hand.
May the GROs form SUKI as a labor organization for purposes of collective bargaining? Explain briefly. Suggested Answer:
The GROs may form SUKI as a labor organization for purposes of collective bargaining. There is an ER-EE relationship between the GROs and the night club.
The Labor Code (in Art 138) provides that any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar, or similar establishment, under the effective control or supervision of the ER for a substantial period of time as determined by the Secretary of Labor, shall be considered as an EE of such establishment for purposes of labor and social legislation.
In the case at bar, it is clearly stated that the women once they enter the premises of the night club would be under the direct supervision of the manager from 8:00pm to 4:00am everyday including Sundays and holidays. Such is indicative of an ER-EE relationship since the manager would be exercising the right of control. (1999 Bar Question)
PART 2
LABOR ORGANIZATION
LABOR ORGANIZATION—any union or association of EEs in the private sector which exists for collective bargaining purposes or of dealing with ERs concerning terms and conditions of employment [Art. 212 (g)]
Q: What is the importance of labor organizations? Suggested Answer:
A labor organization exists in whole or in art for the purpose of collective bargaining agreement or of dealing with employers concerning terms and conditions of employment. Employees may form labor organizations for their mutual aid and protection. (See Arts. 212 (a) and 243 of the Labor Code)
Alternative Answers:
The importance of labor unions are:
A. The enhancement of democracy and the promotion of social justice and development.
B. As instrumentalities trough which worker welfare may be promoted and fostered. (Mactan Workers Union v. Aboitiz)
C. It is the instrumentality through which an individual laborer who is helpless as against a powerful ER may, through concerted effort and activity, achieve legal goal of economic well-being. (Gullano v. CIR) (1996 Bar Question)
Legitimate Labor Organization— any labor organization in the private sector registered or reported with the DOLE [Book V, Rule 1, Sec. 1 (ee)] (if not registered, does not posses the rights of a LLO)
Union—any labor organization in the private sector organized for collective bargaining and for other legitimate purpose [Book V, Rule 1, Sec. 1 (zz)]
Independent Union — labor organization operating at the enterprise level that acquired legal personality from independent registration
Chartered Local — labor organization at the enterprise level that acquired legal personality acquired through issuance of charter certificate by a duly registered federation or national union
National Union / Federation — labor organization with at least 10 locals/ chapters or affiliated unions, each of which must be a duly certified or recognized collective bargaining agent.
Company union — any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice
Affiliate — refers to an independent union affiliated with a federation, national union or a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation, reported to the Regional Office and the Bureau
Affiliation/ Disaffiliation
• Affiliation by a duly registered union with a national federation does not cause the local union to lose its legal personality.
• The local union remains the basic unit that serves the common interest of its members.
• The union also has the right to disaffiliate from its mother union and join a new federation (exercise of right to self-organization), in the absence of enforceable provisions in the federation’s constitution preventing disaffiliation.
• But when the union is not independently registered and it disaffiliates from a federation, it is not granted the rights and privileges granted to a LLO. It cannot file a petition for CE or bargain with the ER or stage a strike (Villar v. Inciong, 1983)
• Affiliation/ disaffiliation is an affair between the parent and the daughter union. The ER is not involved and should not be adversely affected. The CBA continues to bind the members of the disaffiliated union up to the CBA’s expiration date (Associated Workers Union PTWGO v. NLRC, 1990)
WORKER’S ASSOCIATION — an association of workers organized for the mutual aid and protection or for any legitimate purpose other than collective bargaining of its members. [Book V, Rule 1, Sec. 1 (ccc)]
Legitimate Worker’s Association— an association of workers organized for the mutual aid and protection or for any legitimate purpose other than collective bargaining of its members registered with the DOLE. [Book V, Rule 1, Sec. 1 (ff)]
LABOR ORGANIZATION V. WORKER’S ASSN
LABOR ORGANIZATION WORKER’S ASSN
Compositi
on Employees Workers
Purpose collective bargaining or
of dealing with employers concerning terms and conditions of employment.
mutual aid and protection of its members or for any other legitimate purpose other than collective bargaining
REQUIREMENTS OF REGISTRATION Independent Labor Org
1. Registration fee
2. Name of the applicant union, its principal address, names and addresses of its officers, approx. number of EEs in the BU where it seeks to operate, with a statement that it is not reported as a chartered local of any federation or national union;
3. Minutes of the organizational meeting; list of workers who participated in the meetings; 4. Names of all its members comprising at least 20% of all EEs in the BU;
5. Annual financial report if the applicant has been in existence for one or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included;
6. Constitution and by-laws (CBL), minutes of its adoption and ratification, and the list of the members who participated
- list of the ratifying members may be dispensed with where the CBL was ratified or adopted during the organizational meeting— factual circumstance of the ratification shall be recorded in the meeting
All required documents shall be certified under oath by the Sec. or Treas. and attested to by the Pres.
1 original copy and 2 duplicate copies of all documents accompanying the application or notice shall be submitted to the Regl Office or the Bureau.
Federation/ National Union
In addition to 1,2,3,5 and 6 above:
- Resolution of affiliation of at least 10 LLOs, whether independent union or chartered locals (all duly recognized as collective bargaining agents)
- Names and addresses of the companies where the affiliates operate plus list all members in each company involved.
LOs operating within an identified industry may also apply for registration as a federation or national union within the specified industry by submitting to the Bureau the same set of documents
Worker’s Association 1. Registration fee
2. Name of the applicant association, its principal address, the name of its officers and their respective addresses
3. Minutes of the organizational meeting(s) and the names of individual members who attended such meetings
4. The financial reports of the applicant association if it has been in existence for one or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included in the application;
5. Constitution and by-laws (CBL) to which must be attached the names of the ratifying members, the minutes of adoption or ratification of the CBL, and the date when the ratification was made, unless ratification was done in the organizational meeting(s), in which case such fact shall be reflected in the minutes of the organizational meeting(s)
• Application for registration of a workers’ association operating in more than one region shall be accompanied, in addition to the above requirements, by a resolution of membership of each member association, duly approved by its BOD.
Legal personality: cannot be attacked collaterally
• The labor union or worker’s association shall be deemed registered and vested with legal personality on the date of the issuance of its certificate of registration or certificate of creation of chartered local.
• such legal personality may be questioned only through an independent petition for cancellation of union registration, and not by collateral attack (Book V, Rule IV, Sec. 8)
Q: At what particular point does a labor organization acquire a legal personality?
(a) On the date of the agreement to organize the union is signed by the majority of all its members; or (b) On the date the application for registration is duly filed with the Department of Labor; or
(c) On the date appearing on the Certificate of Registration; or (d) On the date the Certificate of Registration is actually issued; or (e) None of the above.
Choose the correct answer. Suggested Answer:
On the date the Certificate of Registration is actually issued. Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration.
Another Suggested Answer:
(c) “On the date appearing on the Certificate of Registration.”
When the law provides that a “labor organization xxx shall acquire legal personality xxx upon issuance of the certificate of registration”, the date appearing therein is legally presumed – under the rule on presumption or regularity – to be its date of issuance. Actual issuance is a contentious evidentiary issue that
can hardly be resolved, not mention that the law does not speak of the actual issuance. (2003 Bar Question)
GROUNDS FOR CANCELLATION OF UNION REGISTRATION
A. Failure to comply with the requirements of registration (see above) B. Violation of any of the provisions of Art. 239. These are:
(1) Misrepresentation, false statement or fraud in connection with
a. the adoption or ratification of the CBL or amendments thereto, the minutes of ratification and the list of members who took part in the ratification;
b. the election of officers, minutes of the election of officers, the list of voters c. in the preparation of financial reports
(2) Failure to submit
a. the CBL or amendments thereto, the minutes of ratification and the list of members who took part in the ratification within 30 days from adoption/ ratification
b. minutes of the election of officers, the list of voters within 30 days from election c. annual financial report within 30 days after the closing of every fiscal year d. list of individual members to the Bureau once a year or whenever required
(3) Acting as a labor contractor or engaging in the "cabo" system, or otherwise engaging in any activity prohibited by law
C. Entering into CBA which provide terms and conditions of employment below minimum standards established by law
D. Asking for or accepting attorney’s fees or negotiation fees from employers
E. Checking off special assessments or any other fees without duly signed individual written authorizations of the members (Other than for mandatory activities under the Labor Code)
F. Failure to comply with requirements under Articles 237 and 238 (requirements for unions and federations)
Commission of any of the acts in Art. 241 (Rights and conditions of membership in a labor org) Rule: Any party-in-interest may commence a petition for cancellation of registration except in actions
involving violations of Art. 241, which can only be commenced by members of the labor organization concerned.
- and if it involves the entire membership of the union, the complaint should be supported by at least 30% of the union members
RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LO (Art. 241)
- violations of these shall be a ground for cancellation of union registration or expulsion of officer from office, whichever is appropriate.
• Any EE, whether employed for a definite period or not, shall be eligible for membership in any labor organization beginning the 1st day of service. (Book V, Rule ii, Sec. 2)
• Union is an agent of its members.
Q: A labor union lawyer opined that a labor organization is a private and voluntary organization; hence, a union can deny membership to any and all applicants.
Is the opinion of counsel in accord with law? Suggested answer:
No, the opinion of counsel is not in accord with law.
The Labor Code (in Art 249 (a),(b)) provides that a labor organization has the right to prescribe its own rules for the acquisition or retention of membership, but it is an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of their right to self-organization. Thus, a labor organization cannot discriminate against any employee by denying such employee membership in the labor organization
on any ground other than the usual terms and conditions under which membership or continuation of union membership is made available to other members.
Another suggested answer:
Yes, the legal opinion of counsel, on the nature of a labor union and its admission policy is in accord with law, but must be qualified.
The Supreme Court ruled in Salunga v. CIR (1967) as follows:
“Generally, a state may not compel ordinary voluntary association to admit thereto any given individual, because membership therein may be accorded or withheld as a matter of privilege.”
The same case further ruled that the law can compel a labor union to admit an applicant for membership when the union
is-“The rule is qualified in respect of labor unions holding a monopoly in the supply of labor, either in a given locality or as regards a particular employer with which it has a closed-shop agreement. The reason is that (union security provisions) cause the admission requirements of trade union to be affected with public interest.” (1998 Bar Question)
Q: On what ground or grounds may a union member be expelled from the organization? Suggested Answer:
Union members may be expelled from the labor organization only on valid grounds provided for in the Union Constitution, By-Laws, or conditions for union membership.
Another Suggested Answer:
Whenever appropriate for any violation of the rights as: 1. refusal to pay union dues and special assessments; 2. disloyalty to the union; and
3. violation of the constitution and by-laws of the union (2002 Bar Question) Political Rights
Officers directly elected by secret ballot at intervals of 5 years
No qualification requirement for candidacy to any position other than membership in good standing
No person convicted of crime involving moral turpitude shall be eligible to be an officer of union Officers shall not be paid any compensation other than salaries and expenses due to their
positions as authorized by CBL or written resolution of majority Deliberative and decision-making rights
Determination by secret ballot any question of major policy
No admission of individuals who are members of subversive organizations Right to be informed
Full and detailed report of financial transactions
All income and revenue evidenced by a record and every expenditure evidenced by a receipt Treasurer and officers render a true and correct account of all moneys received and paid since
assuming office or since last accounting:
- At least once a year within 30 days from close of fiscal year - Other times as required by written resolution of majority - Upon vacating his office
Books of account and financial records open to inspection by officer/ member during office hours Members should be informed about the provisions of its constitution and by-laws, CBA, prevailing
labor relations system and their rights and obligations under existing labor laws (LLO may assess reasonable dues to finance labor relations seminars/ labor education activities)
Rights over money matter
No arbitrary, excessive, oppressive initiation fees, fines and forfeiture
No collection of fees, dues nor disbursements unless duly authorized pursuant to CBL All payment of fees, dues, contributions evidenced by receipt and entered into records
Funds shall not be applied for any purpose other than expressly provided in CBL or authorized by majority of members at general meeting
No special assessment or other extraordinary fees may be levied unless authorized by written resolution of majority (levy)
Other than mandatory activities under the Code, no special assessment, atty’s fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an EE without any individual written authorization (check-off) (cf. Art. 113)
Requisites for a valid levy (i.e., imposition of a certain amount)
Authorization by a written resolution of majority of all members at the general membership meeting called for the purpose
Requisites for a valid check-off (i.e., collecting an amount through salary deduction) Authorization by a written resolution of majority of all members
at the general membership meeting called for the purpose
individual written authorization of the EE, specifying the amount, purposes, and beneficiary of the deduction
› EEs’ check-off authorization is only valid as long as they remain members of the union. When a local union disaffiliates from a national union/ federation, the latter ceases to be entitled to check-off dues. The local union, which has validly disaffiliates will be the one entitled to check off dues (Volkschel Labor Union v. BLR, 1985)
Q: What requisites must a Union comply with before it can validly impose special assessments against its members for incidental expenses, attorney’s fees, representation expenses and the like?
Suggested answer:
The Labor Code (in Art 241 (n)) provides that “no special assessments or extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose.”
Another suggested answer:
In the ABS-CBN Employees Supervisors Union v. ABS-CBN Broadcasting Corp., and Union Officers (1999), the Supreme Court ruled that the following are the requisites:
1. authorization by a written resolution of the majority of all the members at the general membership meeting duly called for the purpose;
2. secretary’s record of the minutes of the meeting; and
3. individual written authorization for check-off duly signed by the employee concerned. (2001 and 2002 Bar Questions)
Q: Atty. Facundo Velasco was retained by Welga Labor union to represent it in the Collective Bargaining Negotiations. It was agreed that Atty. Velasco would be paid in the sum of P20,000 as attorney’s fees for his assistance in the CBA negotiations.
After the conclusion of the negotiations, Welga Labor Union collected from its individual members the sum of P100 each to pay for Atty. Velasco’s fees and another sum of P100 each for services rendered by the union officers. Several members of the Welga Labor Union approached you to seek advice on the ff. matters.
(a) Whether or not the collection of the amount assessed on the individual members to answer for the Attorney’s fees was valid.
(b) Whether or not the assessment of P100 from the individual members of the Welga Labor Union for services rendered by the union officers in the CBA negotiations was valid.
Answer:
(a)The assessment of P100 from each union member as attorney’s fees – for union negotiation, is not valid. Art. 222(b), LC, reads:
“No attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining negotiations or conclusion of the collective agreement shall be imposed on any individual member of the contracting union; Provided, however, that attorneys fees may be charged against union funds in an amount to e agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void.”
(b) The assessment of P100as negotiation fees charged to each individual union member and payable to union officers is also not valid, for the same reason as stated above. The assessment is an act violative of Art. 222(b).
Alternative Answers:
(a) The collection of the amount assessed on the on individual members to members to answer for the attorney’s fees would be valid if it was authorized by a written resolution of a majority of all the members in general membership meeting duly called for the purpose.
(b) The assessment of P100 from the individual members of the Welga Labor Union for services rendered by the Union officers in the CBA negotiations would be valid if it was authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. [Art. 241(N)] (1997 Bar Question)
RIGHTS OF LEGITIMATE LABOR ORGS (Art. 242)
To act as the representative of its members for the purpose of CB; (per Azucena: erroneous because only the LLO who has majority status can represent the BU; minority LLO does not have this right)
To be certified as the exclusive representative of all EEs in an appropriate collective bargaining unit for purposes of CB; (per Azucena, this is only true if the union won the certification election or consent election)
To be furnished by the ER with the annual audited financial statements after the union has been duly recognized by the ER or certified as the sole and exclusive bargaining representatives of the EEs in the BU, or within 60 calendar days before the expiration of the existing CBA, or during the CB negotiation;
To own property, real or personal, for the use and benefit of the labor org and its members; To sue and be sued in its registered name; and
To undertake all other activities designed to benefit the organization and its members
The income and the properties, etc. of LLOs used actually, directly and exclusively for lawful purposes shall be free from taxes
PART 3
THE APPROPRIATE BARGAINING UNIT
APPROPRIATE BARGAINING UNIT (ABU)— group of EEs sharing mutual interest within a given ER unit, comprised of all or less than all of the entire body of EEs in the ER unit or any specific occupational or geographical grouping within such ER unit.
Factors to be considered in determining the ABU (1) Will of the EEs
(2) Affinity and unity of EEs’ interest, such as substantial similarity of works and duties or similarity of compensation & working conditions,
(3) Prior collective bargaining history
(4) Employment status, i.e., temporary, seasonal, and probationary EEs
• Test of grouping: community or mutuality of interests because the basic test of an asserted bargaining unit’s acceptability is whether it is fundamentally the combination w/c will best assure to all EEs the exercise of their collective bargaining rights.
• Globe Doctrine — determinative factor is the express will of the EEs. (The practice of the courts to hold a series of elections not for the purpose of granting the right of representation to the group garnering the majority vote but to let employees select on several units to represent them)
Q: What is an appropriate bargaining unit for purposes of collective bargaining? Suggested answer:
An appropriate bargaining unit is a group of employees of a given employer comprised of all or less than all of the entire body of employees, which the collective interest of all the employees, consistent with the interest of the employer, indicate to be best suited to serve reciprocal rights and duties of the parties under the collective bargaining provisions of the law. [See UP v. Ferrer-Calleja (1992)] (1998 Bar Question) Q: Can the 2 Managers be part of the bargaining unit?
Suggested Answer:
No, the 2 Managers cannot be part of the bargaining unit composed of supervisory EEs.
A bargaining unit must effect a grouping of EEs who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining. (San Miguel Corp. Supervisors and Exempt EEs Union v. Laguesma, 227 SCRA 370)
The Labor Code (in Art. 245) provides that managerial EEs are not eligible to join, assist or form any labor organization.
The above provision shows that managerial EEs do not have the same interests as the supervisory EEs which compose the bargaining unit where SMCT wishes to be the exclusive bargaining representative. (1999 Bar Question)
PART 4
UNION REPRESENTATION: ESTABLISHING MAJORITY STATUS
EXCLUSIVE BARGAINING AGENT [Art. 255; Book V, Rule 1, Sec. 1(t)] — the legitimate labor union duly recognized or certified as the sole and exclusive bargaining agent (SEBA) of the EEs in a BU. • Despite having a SEBA, an individual EE or group of EEs shall have the right at anytime to present
grievances to their ERs. (Art. 255)
Q: The modes of determining an exclusive bargaining agreement (agent) are: a. voluntary recognition
b. certification election c. consent election
Explain briefly how they differ from one another. Suggested Answer
a. There is voluntary recognition when in an unorganized establishment with only one legitimate labor organization, the employer voluntarily recognizes the representation status of such a union. Within thirty (30) days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office of the Department of Labor and Employment which issued the recognized labor union’s certificate of registration or certificate of creation of a chartered local.
b. Certificate 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 Department of Labor and Employment, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. (Art 256, 257, 258, LC)
c. When the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit is not ordered by the DOLE, but has been voluntarily agreed upon by the parties with or without the intervention of the DOLE, then the process is consent election. [Warren Manufacturing Workers Union v. BLR(1988)]
Q: When does a run-off election occur? Suggested answer:
A “run-off” or second election occurs when an election which provides for three (3) or more choices result in no choice receiving a majority if the valid votes cast, and no objections or challenges have been presented which, if sustained, can materially change the results; the election officer shall motu propio conduct a run-off election within ten (10) calendar days from the close of election proceedings between the labor unions receiving the (2) highest number of votes; Provided that, the total number of votes for all contending unions is at least fifty per cent (50%) of the number of votes cast. (Art 256; LC Rule X, Dept Order 40-03) (2006 and 2000 Bar Questions)
PRE-CONDITION: ER-EE RELATIONSHIP
• An employer-employee relationship is a pre-condition before the conduct of a certification election since without such relationship, there will be no duty to bargain on the part of either the employer or employee. Thus, it will be senseless to go on with a certification election to choose their bargaining representative when there is no duty to collectively bargain anyway. (Allied Free Workers Union v. Cia Maritima, 1967)
Q: Is it required that an employer-employee relationship exists between an employer and the employees in the appropriate bargaining unit before a certification election can be ordered? If so, why?
Suggested answer:
Yes, it is required that an employer-employee relationship is existing between the employer and the employees in the appropriate bargaining unit before a certification election can be ordered for the simple
reason that a certification election is held for the purpose of determining which labor organization shall be the exclusive collective bargaining representative of the employees in an appropriate bargaining unit. There could be no collective bargaining between persons who do not have employer-employee relationship.
Another suggested answer:
Yes, the Supreme Court has ruled that the existence of an employer-employee relationship is required before a certification election can be held.
The Supreme Court in Allied Force Waters Union v. Compania Maritima (1967), ruled:
“xxx there being no employer-employee relationship between the parties disputants, there is neither a “duty to bargain collectively” to speak of. And there being no such duty, to hold certification elections would be pointless. There is no reason to select a representative to negotiate when there can be no negotiations in the first place. Where there is no duty to bargain collectively, it is not proper to hold certification elections in connection therewith.” (1998 Bar Question)
SELECTION OF SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) (1) Voluntary Recognition by ER—allowed only
a. in an enterprise being unionized for the first time (unorganized establishment—if there exists no duly recognized or certified bargaining agent of the concerned bargaining unit); and
b. where there is only one legitimate labor organization seeking recognition (Book V, Rule, VII, Sec. 1)
Note: If a union asks the ER to voluntarily recognize it as the bargaining agent of the EEs, it in effect asks the ER to certify it as the SEBA—a certification which the ER has no authority to give. It is the EEs’ prerogative, not the ER’s, to determine whether they want a union to represent them, and if so, which one it should be. (Samahan ng Manggagawa sa Permex v. Sec. of Labor, 1998)
In Colgate Palmolive Phils v. Ople (1988), it was held that the Sec. of Labor cannot directly certify a union as the SEBA.
(2) Certification Election (CE)(Art. 256)—(see below)
(3) Consent Election— process of determining through secret ballot, voluntarily agreed upon by the parties, the SEBA of the EEs in an ABU for purposes of CB or negotiation.
(4) Run-off Election (Art. 256)— election between the labor unions receiving the 2 highest number of votes provided:
(1) There are 3 or more choices in the CE;
(2) results of the CE: none of these choices received majority of the valid votes cast; and (3) total number of votes for all contending unions: at least 50% of the total votes cast • Presumption: there is a valid election, i.e., majority of the eligible voters voted
• “No Union” shall not be a choice in the run-off election
CERTIFICATION ELECTION— process of determining through secret balloting the sole and exclusive representative of the EEs in an ABU for purposes CB or negotiation (this is different from union election which selects the officers of the union)
Q: There are instances when a certification election is mandatory. What is the rationale for such legal mandate?
Suggested Answer:
According to the Labor Code, 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 a legitimate labor organization.
In the above-described situation, a certification election is made mandatory because if there is no certified bargaining agent as determined by a certification election, there could be no collective bargaining in the said unorganized establishment. (2003 Bar Question)
Q: Are probationary EEs entitled to vote in a certification election? Why? Suggested Answer:
In a certification election, all rank-and-file EEs in the appropriate bargaining unit are entitled to vote. This principle is clearly stated in Art. 255, LC which states that the “labor organization designated or selected by the majority of the EEs in such unit shall be the exclusive representative of the EEs in such unit for the purpose of collective bargaining.” Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all EEs in the bargaining unit. Hence, all rank-and-file EEs, probationary or permanent, have substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility to vote in the petition for certification election. The law refers to “all” the EEs in the bargaining unit. All they need to be eligible to vote is to belong to the “bargaining unit.” (Airtime Specialists, Inc. v. Ferrer-Calleja, 180 SCRA 749)
Alternative Answer:
Probationary EEs may not be entitled to vote in a certification election where only regular EEs belong t a bargaining unit and probationary EEs do not belong to such bargaining unit. It is the belonging to a bargaining unit that entitles an EE to vote in a certification election.
Another Alternative Answer:
Yes. An EE, whether employed for a definite period or not, shall, beginning on his first day of service be considered an EE for purposes of membership in any labor union. [Art. 277(c)] (1999 Bar Question)
Nature of CE proceedings (1) Non-adversarial (2) Non-litigious
(3) Administrative proceeding to determine the worker’s choice
“Organized Establishment”— an enterprise where there is a recognized or certified SEBA. The determination of “organized establishment” status should be at the bargaining unit level. (Hence an establishment may be considered as organized insofar as the rank-and-file BU is concerned but not organized insofar as the supervisor BU is concerned.)
Freedom Period—last 60 days of the 5th year of the CBA
Valid Election— at least majority of the eligible voters voted (base: eligible voters in the BU) Exclusive Bargaining Agent— labor union receiving the majority of the valid votes cast [base:
valid votes (not the number of voters); exclude the invalid votes first] Petition for Certification Election (Arts. 256-258)
Organized Establishment Unorganized Establishment
What Verified petition— supported by a written
consent of at least 25% of all EEs in the BU Verified petition—No 25% requirement Who
files LLO or the ER (when requested to bargain collectively) LLO or the ER (when requested to bargain collectively) When
filed With CBA— within the 60-day freedom period Without CBA— anytime except when barred (cf. bars to petition for CE)
Anytime except within 1 yr from a valid CE
Where
filed Regl Office which issued the petitioning union’s cert. of reg/ cert. of creation of chartered local (with the Med-Arbiter)
Regl Office which issued the petitioning union’s cert. of reg/ cert. of creation of chartered local (with the Med-Arbiter)
2 positive requisites:
1. filed within the freedom period
2. with written consent of at least 25% of all EEs in the BU 25% signature requirement
› Submission of the 25% consent signature need not be simultaneous with the filing of the petition. The SC held that the mere filing of a petition for CE within the freedom period is sufficient basis for the holding of a CE, subject to the submission of the consent signatures within a reasonable period from such filing. (Port Worker’s Union of the Philippines v. Laguesma, 1992)
› Even if 25% is not achieved, if Med-Arb feels there is a representation achievement, Med-Arb may still order CE. (California Mfg. v. Laguesma, 1992)
› Labor Code: mandatory requirement (it becomes the ministerial duty of the Med-Arb to conduct the CE)
› IRR: absence of such ground is a ground for the dismissal of the petition for CE. Procedure
Petition for CE is filed with Med-Arbiter
decides within 20 days
(if no appeal, order of Med-Arb is final;
order granting conduct of CE in an unorganized establishment is unappealable)
Appeal to Sec. of Labor within 10 days from receipt of order
(but appeal is filed with the Regl Office, who later transmits the records to the Sec.; reply to the appeal may be
filed with the Sec. within 10 days; appeal stays the conduct of the CE)
Sec. decides within 15 days
Decision of Sec. becomes final and executory in 10 days; no MR is allowed from this decision; (but may be questioned before
the CA
in a pet. for certiorari under Rule 65)
Records remanded to the Regionall Office of origin for implementation within 48 hrs from finality;
(implementation shall not be stayed unless restrained by appropriate court)
• The incumbent bargaining agent shall automatically be one of the choices in the CE as forced intervenor. (Book V, Rule VIII, Sec. 7)
Q: Can a “no-union” win in a certificate election? Suggested Answer:
Yes, because the objective in a certification election is to ascertain the majority representation of the bargaining representative, if the employees desire to be represented at all by anyone. Hence, “no union” is one of the choices in a certification election.
Another Suggested Answer:
No, a “no-union” cannot win in a certification election. The purpose of a certification election is to elect an exclusive bargaining agent and a “no-union vote would precisely mean that the voter is not choosing any
of the contending unions. If the “no union” votes constitute a majority of the valid votes cast, this fact will all the more mean that no union won in the certification election. A one-year bay will consequently stop the holding of another certification election to allow the employer to enjoy industrial peace for at least one year. Q: As Human Resources Department (HRD) manager of EZ Components, an unorganized manufacturer of electric and electronic components for household appliances, you are suddenly confronted with demands for recognition and collective bargaining negotiations from two competing labor unions. They both claim to represent all the rank-and-file EEs. Union A is led by a moderate faction, while Union B is affiliated with a militant federation identified with leftist ideology.
Which of the following courses of action should you take to best protect the interests of your company and EEs?
(a) Recognize Union A as the rightful bargaining representative because it will be more reasonable to deal with;
(b) Recognize Union B because you do not want to antagonize its leftist connections and foment inter-union conflicts;
(c) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage; or
(d) Petition the Bureau of Labor Relations to conduct a certification election to determine which union really represents the majority of the EEs in the bargaining unit.
Suggested answer:
(d) Petition the BLR to conduct a certification election to determine which union really represents the majority of the EEs in the appropriate bargaining unit.
Cite Art. 258.
Another Suggested Answer:
(c) Ignore the demands of either union since you cannot be compelled legally to deal with them at this stage. The reason why I am opting for (c) instead of (d) is because option (d) calls for the EZ Component’s filing of a petition for certification election with “the Bureau of Labor Relations”. Book V, Rule VIII, Sec. 2 of the Omnibus Rules Implementing the Labor Code (amended by DO 40-03, Series of 2003), which implements Arts. 257 and 258 of the Labor Code, is explicit that “a petition for certification election shall be filed with the Regional Office which issued the petitioning union’s certificate of registration / certificate of creation of chartered local. The petition shall be heard and resolved by the MED-Arbiter”. Filing it with the Bureau of Labor Relations rendered (d) a wrong answer.
Art. 258 of the Code, which empowers the “Bureau” to entertain the petition for certification election of an ER, must be read alongside Art. 212(b) of the Labor Code which defines “Bureau” to mean as the BLR and/or the Labor Relations Division in the regional offices … in the Department of Labor, as well as Art. 259 of the Code which tells us that it is the MED-Arbiter of the Labor Relations Division in the regional offices who hears and decides certification election and that appeal therefrom is not even to BLR but to the DOLE Secretary. (2005 Bar Question)
Q: PT&T Supervisory EEs Union filed a petition for the holding of a certification election among the supervisory EEs of the PT&T Company. The company moved to dismiss the petition on the ground that union members were performing managerial functions and were not merely supervisory EEs. The company also alleged that a certified bargaining unit existed among its rank and file EEs which barred the filing of the petition.
1) Does the company have the standing to file the motion to dismiss? Explain. 2) If you were the Med-Arbiter, how would you resolve the petition?
3) What is the proper remedy of an employer to ensure that the EEs are qualified to hold a certification election?
Suggested Answer:
1) No, the company has no standing to file a Motion to Dismiss as the ER has no right to interfere in a purely union matter or concern. [Philippine Fruits and Vegetable Industries, Inc. v. Torres, 211 SCRA 95 (1992)]
The Court would wish to stress once more the rule which has consistently pronounced in many earlier cases that a certification election is the sole concern of the workers and the ER is regarded as nothing more than a by-stander with no right to interfere at all in the election.
2) As the Med-Arbiter I will:
a. Deny, for lack of merit, the ER’s Motion to Dismiss the Union’s Petition for Certification Election. b. Proceed to hear the merits of the petition, especially:
1. the appropriation of the claimed bargaining unit;
3. if the petition is in order, to set the date, time and place of the election.
3) The ER has no remedy. The petition for certification election was initiated by the Union; hence, the ER is a total stranger or a bystander in the election process. (Philippine Fruits and vegetable Industries, Inc. v. Torres). To allow an ER to assert a remedy is an act of interference in a mater which is purely a concern of the Union.
Alternative Answer:
1) The company does not have the standing to file a motion to dismiss the petition for certification election, but it could move for the exclusion of the EEs it alleged to be managerial EEs from the bargaining unit for which a petition for certification election has been filed.
As a general rule, an employer has no standing in a petition for certification election because the purpose of a certification election is to determine who should be he collective bargaining representative of the EEs. Thus, a certification is the concern of the EEs and not the ER.
But in the case at bar, the ER may have a standing because the petition for certification election involves personnel which the ER alleges to be managerial EEs. And managerial EEs under the LC are not eligible to form, assist or join labor organizations, implying that they cannot be part of the bargaining unit for which a petition for certification election has been filed.
2) As the Med-Arbiter, I will order the holding of the certification election. The fact that there is already a certified collective bargaining representative of the rank and file EEs of the Company is not a bar to the holding of a certification election for the determination of the collective bargaining representative of the supervisory EEs. But I will exclude those EEs found to be managerial from participating in the certification election.
3) The proper remedy of an ER to ensure that only the EEs are qualified to hold a certification election is to move for the exclusion of those whom he alleges to be managerial personnel. (1996 and 1999 Bar Questions)
Q: Can the Bureau of Labor Relations certify a union as the exclusive bargaining representative after showing proof of majority representation thru union membership cards without conducting an election? Suggested answer:
The Bureau of Labor Relations cannot certify a union as the exclusive collective bargaining representative after showing of proof of majority representation thru union membership cards without conducting a certification election.
The Labor Code (in Arts 256, 257, 258) provides only for a certification election as the mode for determining the exclusive collective bargaining representative if there is a question of representation in an appropriate bargaining unit.
Another suggested answer:
No, the Bureau of Labor Relations cannot certify a union as the exclusive bargaining representative without conducting a certification election.
The Supreme Court, in Colgate Palmolive Phils., Inc. v. Ople (1988), ruled:
“The procedure for a representation case is outlined (in the) Labor Code… the main purpose of which is to aid in ascertaining majority representation. The requirements under the law… are all calculated to ensure that the certified bargaining representative is the true choice of the employees against all contenders. xxx When an… official bypasses the law on the pretext of retaining a laudable objective, the meaning or purpose of the law will lose its meaning as the law itself is disregarded. When the (BLR) directly (certifies) a union, he in fact disregarded this procedure and its legal requirements. There was therefore failure to determine with legal certainty whether the union indeed enjoyed majority representation.” (1998 Bar Question)
Bars To A Petition For CE(negative requisites)
1. Certification year— no CE may be held within 12 months from a previous CE, or consent election, or a run-off election, or voluntary recognition by ER
2. Negotiation/ Deadlock bar— no CE if a duly certified union has commenced and sustained negotiations with the ER within 1 year from its certification or there is a pending bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout
3. Contract bar— no CE when there is an existing CBA which has been duly registered (a petition for CE may only be filed within the last 60 days of the 5th year of the CBA— freedom period)
* If the legitimacy of the petitioner union is under question in a proceeding seeking to cancel its registration, such question must first be filed before its petition for CE may be granted.
Q: Distinguish between “contract bar rule” and “deadlock bar rule”. Suggested Answer:
Under the “contract bar rule,” a certification election cannot be held if there is in force and in effect a CBA that has been duly registered with the DOLE except during the freedom period of such CBA which is the 60-day period prior to the expiry date of said CBA. (See Articles 231, 253-A and 256)
Under the “deadlock bar rule” a certification election can not be held if a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or mediation or had become a subject of a valid notice of strike or lockout. (See Sec. 3, Rule XI, Book V of the IRR of the LC) Q: in what instance may a petition for a certification election be filed outside the freedom period of a current CBA?
Suggested Answer:
As a general rule, in an establishment where there is in force and effect a CBA, a petition for certification election may be filed only during the freedom period of such CBA.
But to have the above-mentioned effect, the CBA should have been filed and registered with the DOLE. (See Art 231, 253-A and 256)
Thus, a CBA that has not been filed and registered with the DOLE cannot be a bar to a certification election and such election an be held outside of the freedom period of such CBA.
Alternative Answer:
A petition for certification election may be filed outside the freedom period of a current CBA if such CBA is a new CBA that has been prematurely entered into, meaning, it was entered into before the expiry date of the old CBA. The filing of the petition for certification election shall be within the freedom period of the old CBA which is outside the period of the new CBA that has been prematurely entered into. (1999 Bar Questions)
Grounds for denial of petition for CE
Petitioning union is not a LLO (not registered as a LLO or legal personality has been revoked or cancelled)
Petition violates any of the bars to CE
Petitioning union in an organized establishment fails to submit the 25% support requirement for the filing of the petition for CE
Note: Any question pertaining to the validity of petitioning union’s certificate of registration or its legal personality as LLO, or validity of registration and execution of CBA, shall be held and resolved by the Regl Director in an independent petition for cancellation of its registration (not by the Med-Arb in the petition for CE), unless the petitioning union is not in the roster of LLO or the CBA is not registered.
Q: UNIDAD, a labor organization claiming to represent the majority of the rank and file workers of BAGSAK Toyo Manufacturing Corp. filed a petition for certification election during the freedom period obtaining in said corporation. Despite the opposition thereto by SIGAW Federation on the ground that UNIDAD was not possessed with all the attributes of a duly registered union, the Med-Arbiter issued an order calling for a certification election on July 25, 2001.
This Order was promulgated and served on the parties on July 12, 2001. On July 14, 2001, UNIDAD submitted and served the required documents for its registration as an independent union, which documents were approved by the DOLE on July 15, 2001.
During the elections, UNIDAD won over SIGAW. SIGAW questioned UNIDAD’s victory on the ground that UNIDAD was not a duly registered union when it filed a petition for certification election. Shall SIGAW’s case prosper or not? Why?
Suggested answer:
No, SIGAW’s case will not prosper. The application of technicalities of procedural requirements in certification election disputes will serve lawful objective or purpose. It is a statutory policy that no obstacles should be placed on the holding of a certification election, (Samahan ng Manggagawa sa Pacific Plastic v. Laguesma (1997)) and that the law is indisputably partial to the holding of a certification election. (Western Agusan v. Trajano (1991))