Day Eight Review Labor

7/24/2019 Day Eight Review Labor

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AY EIGHT

J. THE APPROPRIATE BARGAINING UNIT

Department Order No. 9. [21 June 1997], andDepartment Order No. 40, [17 February 2003]Republic Act No. 9481 [2 !a" 2##7]

1. Bargaining unit defined $ Art. 2, %&

Art. 255. Exclusive bargaining representation and workersparticipation in policy and decision-making.The labor organizationdesignated or selected by the majority of the employees in an appropriatecollective bargaining unit shall be the exclusive representative of theemployees in such unit for the purpose of collective bargaining. However,an individual employee or group of employees shall have the right at any

time to present grievances to their employer.

Any provision of law to the contrary notwithstanding, workers shall havethe right, subject to such rules and regulations as the ecretary of !aborand "mployment may promulgate, to participate in policy and decision#making processes of the establishment where they are employed insofaras said processes will directly a$ect their rights, bene%ts and welfare. &orthis purpose, workers and employers may form labor#managementcouncils' (rovided, That the representatives of the workers in such labor#management councils shall be elected by at least the majority of allemployees in said establishment. )As amended by ection **, +epublicAct o. -/0, 1arch */, /2324

DO 40, 1 !1 "d#

(d) !argaining "nit refers to a group of employees sharing mutualinterests within a given employer unit, comprised of all or less than all ofthe entire body of employees in the employer unit or any speci%coccupational or geographical grouping within such employer unit.

DO $, 1 !1 "%#

(#)!argaining "nit refers to a group of employees sharing mutualinterests within a given employer unit, comprised of all or less than all of

the entire body of employees in the employer unit or any speci%coccupational or geographical grouping within such employer unit.

2. Determination of appropriate bargaining unit

2.1 &enera''y $$ communit" o' intere(t e()eption) *lobe Doctrine $$ de(ire o' emplo"ee(


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2.2 *ne'igibi'ity of +anageria' mp'oyee- to oin any /abor Organiationigt of !uperi-ory mp'oyee-+ Rep. Act No. 9481 (ec 8, amendin Art.24, %&

$E%. &.Article *50 of the !abor 6ode is hereby amended to read asfollows'

A'. 25. Ineligibility of Managerial Employees to Join anyLabor Organization; Right of Supervisory Employees. #1anagerial employees are not eligible to join, assist or form any labororganization. upervisory employees shall not be eligible formembership in the collective bargaining unit of the rank#and#%leemployees but may join, assist or form separate collective bargainingunits and7or legitimate labor organizations of their own. The rank and%le union and the supervisors8 union operating within the sameestablishment may join the same federation or national union.9

2.- ffe)t of *n)'u-ion a- +ember- of mp'oyee- Out-ide te Bargaining nit$Rep. Act No. 9481 (ec 8, in(ertin Art. 24$A, %&

$E%. *.A new provision, Article *50#A is inserted into the !abor 6odeto read as follows'

A'. 25-A. Eect of Inclusion as Members of EmployeesOutsie the !argaining "nit.# The inclusion as union members ofemployees outside the bargaining unit shall not be a ground for thecancellation of the registration of the union. aid employees areautomatically deemed removed from the list of membership of saidunion.9

K. CERTIFICATION ELECTION

Department Order No. 9. [21 June 1997], andDepartment Order No. 40, [17 February 2003], 5***Republic Act No. 9481 2 !a" 2##7/

1. o'e of mp'oyer during )ertifi)ation e'e)tion- 6Rep. Act No. 9481 (ec 12, in(ertin Art. 28$A, %&

$E%. +2.A new provision, Article *03#A is hereby inserted into the !abor

6ode to read as follows'

A'. 25&-A. Employer as !ystaner. # :n all cases, whether thepetition for certi%cation election is %led by an employer or a legitimatelabor organization, the employer shall not be considered a party theretowith a concomitant right to oppose a petition for certi%cation election. Theemployer8s participation in such proceedings shall be limited to' )/4 beingnoti%ed or informed of petitions of such nature; and )*4 submitting the list


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of employees during the pre#election conference should the 1ed#Arbiteract favorably on the petition.9

2. Oter ind- of re)ognition of emp'oyee repre-entatie-e()'uding )ertifi)ation e'e)tion-

2.1 Dire)t )ertifi)ation$ not allo0ed

2.2 5o'untary re)ognition, Dept. Order No. 9, Rule

'",E .

/,"0A'1 'E%/033/0.

$ection +. 'e#uirements 4or voluntary recognition. # :nunorganized establishments, the employer may voluntarily recognizethe representation status of a union. 4 days from

recognition, the employer representative and union president shallsubmit to the +egional ?@ce a joint statement attesting to the fact ofvoluntary recognition, which shall also include the following'

)a4 (roof of posting of the joint statement of voluntary recognition for%fteen )/04 consecutive days in two )*4 conspicuous places of theestablishment or bargaining unit where the union seeks to operate;

)b4 The approximate number of employees in the bargaining unit,accompanied by the names and signatures of atleast a majority of themembers of the bargaining unit supporting the voluntary recognition;and

)c4 A statement that there is no other legitimate labor organizationoperating within the bargaining unit.

The joint statement shall be under oath.

ection*. "$ect of voluntary recognition.#


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DO40 9 !10

$ection +. %onsent Election6 Agreement. # :n case the contendingunions agree to a consent election, the 1ed#Arbiter shall not issue aformal order calling for the conduct of certi%cation election, but shall enter

the fact of the agreement in the minutes of the hearing. The minutes ofthe hearing shall be signed by the parties and attested to by the 1ed#Arbiter. The 1ed#Arbiter shall, immediately thereafter, forward the recordsof the petition to the +egional Birector or his7her authorizedrepresentative for the determination of the "lection ?@cer by thecontending unions through raCe. The %rst pre#election conference shall bescheduled within ten )/>4 days from the date of entry of agreement toconduct consent election.

ffe)t of )on-ent e'e)tion: DO40 9 !23

$ection 27. E8ects o4 consent election. -


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At the expiration of the freedom period, the employer shall continue torecognize the majority status of the incumbent bargaining agent where nopetition for certi%cation election is %led. )As amended by ection *=,+epublic Act o. -/0, 1arch */, /2324

Art. 25$, *,

'",E 'epresentation %ases and 3nternal-"nion >isputes

$E%3/0 +. ?;ere to @le.F A petition for certi%cation election shall be

%led with the +egional ?@ce which has jurisdiction over the principalo@ce of the petitioner. The petition shall be in writing and under oath.

$E%3/0 2. ?;o may @le.F Any legitimate labor organization or theemployer, when reDuested to bargain collectively, may %le the petition.

The petition, when %led by a legitimate labor organization shall contain,among others'

)a4 The name of petitioner and its address and a@liation, if any;

)b4 ame, address and nature of the employer8s business;

)c4 Bescription of the bargaining unit which shall be the employer unit unlesscircumstances otherwise reDuire; and provided further, that theappropriate bargaining unit of the rank#and#%le employees shall notinclude supervisory employees and7or security guards;

)d4 Appropriate number of the employees in the alleged bargaining unit;

)e4 ames and addresses of other legitimate labor organizations in thebargaining unit;

)f4 :n an organized establishment, the signatures of at least twenty#%ve )*0E4percent of all employees in the appropriate bargaining unit; and

)g4 ?ther relevant facts.


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)b4 ames and addresses of the legitimate labor organizations involved;

)c4 Approximate number of the employees in the appropriate bargaining unit;)d4 Bescription of the bargaining unit which shall be the employer unit unless

circumstances otherwise reDuired; and provided further, that theappropriate bargaining unit of the rank#and#%le employees shall not

include supervisory employees and7or security guards;

)e4 ?ther relevant facts.

$E%3/0 7. ?;en to @le.F :n the absence of a collective bargainingagreement duly registered in accordance with Article *=/ of the 6ode, apetition for certi%cation election may be %led at any time. However, nocerti%cation election may be held within one year from the date ofissuance of a %nal certi%cation election result. either may arepresentation Duestion be entertained if, before the %ling of a petition forcerti%cation election, a bargaining deadlock to which an incumbent orcerti%ed 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.

:f a collective bargaining agreement has been duly registered inaccordance with Article *=/ of the 6ode, a petition for certi%cationelection or a motion for intervention can only be entertained within sixty)->4 days prior to the expiry date of such agreement.

$E%3/0 . E8ects o4 early agreements.F The representation caseshall not, however, be adversely a$ected by a collective bargainingagreement registered before or during the last sixty )->4 days of asubsisting agreement or during the pendency of the representation case.

$E%3/0 5. ?;ere to @le motion 4or intervention.F The motion forintervention in certi%cation election proceedings shall be %led before the1ed#Arbiter assigned to the case. The mere %ling of said motion, however,will not suspend the holding of the certi%cation election without an orderissued by the 1ed#Arbiter.

$E%3/0 9. =rocedure. F Gpon receipt of a petition, the +egionalBirector shall assign the case to a 1ed#Arbiter for appropriate action. The1ed#Arbiter, upon receipt of the assigned petition, shall have twenty )*>4working days from submission of the case for resolution within which todismiss or grant the petition.

:n a petition %led by a legitimate organization involving an unorganizedestablishment, the 1ed#Arbiter shall immediately order the conduct of acerti%cation election.

:n a petition involving an organized establishment or enterprise where themajority status of the incumbent collective bargaining union is Duestionedthrough a veri%ed petition by a legitimate labor organization, the 1ed#Arbiter shall immediately order the certi%cation election by secret ballot if


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the petition is %led during the last sixty )->4 days of the collectivebargaining agreement and supported by the written consent of at leasttwenty#%ve percent )*0E4 of all the employees in the bargaining unit. Anypetition %led before or after the sixty#day freedom period shall bedismissed outright. The twenty#%ve percent )*0E4 reDuirement shall besatis%ed upon the %ling of the petition, otherwise the petition shall be

dismissed.

The sixty#day freedom period based on the original collective bargainingagreement shall not be a$ected by any amendment, extension or renewalof the collective bargaining agreement for purposes of certi%cationelection.

The decision calling for the conduct of an election shall contain the following')a4 ames of the contending unions;)b4 ame of the employer;)c4 Bescription of the bargaining unit, and)d4 !ist of eligible voters which shall be based on the payroll three )=4 months

prior to the %ling of the petition for certi%cation election.

The certi%cation election shall be held within twenty )*>4 calendar daysfrom receipt of the order by the parties.

$E%3/0 4 calendar days from receipt of the order by the appellant. Anyopposition thereto may be %led within ten )/>4 calendar days from receiptof the appeal. The +egional Birector shall within %ve )04 calendar daysforward the entire records of the case to the ?@ce of the ecretary.

Dept. Order No. 40 [2003], u'e9 and $

'",E 333 %E'33%A3/0 E,E%3/0

$ection +. ?;o may @le.#Any legitimate labor organization may %le apetition for certi%cation election.


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the bargaining unit, the +egional ?@ce shall, after hearing, order theconduct of a certi%cation election.

$ection 2. ?;ere to @le.# A petition for certi%cation election shall be%led with the +egional ?@ce which issued the petitioning union8scerti%cate of registration7certi%cate of creation of chartered local. The

petition shall be heard and resolved by the 1ed#Arbiter.


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)b4 the name, address and nature of employer8s business; )c4 thedescription of the bargaining unit;

)d4 the approximate number of employees in the bargaining unit;

)e4 the names and addresses of other legitimate labor unions in the

bargaining unit;

)f4 a statement indicating any of the following circumstances'

/4 that the bargaining unit is unorganized or that there is no registeredcollective bargaining agreement covering the employees in the bargainingunit;

*4 if there exists a duly registered collective bargaining agreement, thatthe petition is %led within the sixty#day freedom period of suchagreement; or

=4 if another union had been previously recognized voluntarily or certi%edin a valid certi%cation, consent or run#o$ election, that the petition is %ledoutside the one#year period from entry of voluntary recognition or conductof certi%cation or run#o$ election and no appeal is pending thereon.

)g4 in an organized establishment, the signature of at least twenty#%vepercent )*0E4 of all employees in the appropriate bargaining unit shall beattached to the petition at the time of its %ling; and

)h4 other relevant facts.

ection 0. +aCe of the case. # Gpon the %ling of the petition, the +egional

Birector or any of his7her authorized representative shall allow the party%ling the petition to personally determine the 1ed#Arbiter assigned to thecase by means of a raCe. 4 days from receipt of thepetition.


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ection . &orced :ntervenor. # The incumbent bargaining agent shallautomatically be one of the choices in the certi%cation election as forcedintervenor.

ection 3. 1otion for :ntervention. # 4 days from

receipt of the petition to determine the following'

)a4 the bargaining unit to be represented;)b4 contending labor unions;)c4 possibility of a consent election;)d4 existence of any of the bars to certi%cation election under ection = ofthis +ule; and )e4 such other matters as may be relevant for the %naldisposition of the case.

ection />. 6onsent "lection; Agreement. # :n case the contending unionsagree to a consent election, the 1ed#Arbiter shall not issue a formal ordercalling for the conduct of certi%cation election, but shall enter the fact of

the agreement in the minutes of the hearing.

The minutes of the hearing shall be signed by the parties and attested toby the 1ed#Arbiter.

The 1ed#Arbiter shall, immediately thereafter, forward the records of thepetition to the +egional Birector or his7her authorized representative forthe determination of the "lection ?@cer by the contending unions throughraCe. The %rst pre#election conference shall be scheduled within ten )/>4days from the date of entry of agreement to conduct consent election.

ection //. umber of Hearings; (leadings. # :f the contending unions failto agree to a consent election during the preliminary conference, the 1ed#Arbiter may conduct as many hearings as he7she may deem necessary,but in no case shall the conduct thereof exceed %fteen )/04 days from thedate of the scheduled preliminary conference7hearing, after which timethe petition shall be considered submitted for decision. The 1ed#Arbitershall have control of the proceedings. (ostponements or continuancesshall be discouraged.


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they may deem necessary for the immediate resolution of the petition."xtensions of time shall not be entertained. All motions shall be resolvedby the 1ed#Arbiter in the same order or decision granting or denying thepetition.

ection /*. &ailure to appear despite notice. # The failure of any party to

appear in the hearing)s4 when noti%ed or to %le its pleadings shall bedeemed a waiver of its right to be heard. The 1ed#Arbiter, however, whenagreed upon by the parties for meritorious reasons may allow thecancellation of scheduled hearing)s4. The cancellation of any scheduledhearing)s4 shall not be used as a basis for extending the /0#day periodwithin which to terminate the same.

ection /=. ?rder7Becision on the petition. # 4 days from thedate of the last hearing, the 1ed#Arbiter shall issue a formal ordergranting the petition or a decision denying the same. :n organizedestablishments, however, no order or decision shall be issued by the 1ed#Arbiter during the freedom period. The order granting the conduct of a

certi%cation election shall state the following'

)a4 the name of the employer or establishment;)b4 the description of the bargaining unit;)c4 a statement that none of the grounds for dismissal enumerated in thesucceeding paragraph exists;)d4 the names of contending labor unions which shall appear as follows'petitioner union7s in the order in which their petitions were %led, forcedintervenor, and no union; and)e4 a directive upon the employer and the contending union)s4 to submitwithin ten )/>4 days from receipt of the order, the certi%ed list ofemployees in the bargaining unit, or where necessary, the payrolls

covering the members of the bargaining unit for the last three )=4 monthsprior to the issuance of the order.

ection /5. Benial of the petition; rounds. # The 1ed#Arbiter may dismissthe petition on any of the following grounds')a4 the petitioner is not listed in the Bepartment8s registry of legitimatelabor unions or that its legal personality has been revoked or cancelledwith %nality in accordance with +ule I:J of these +ules;)b4 the petition was %led before or after the freedom period of a dulyregistered collective bargaining agreement; provided that the sixty#dayperiod based on the original collective bargaining agreement shall not bea$ected by any amendment, extension or renewal of the collectivebargaining agreement;)c4 the petition was %led within one )/4 year from entry of voluntaryrecognition or a valid certi%cation, consent or run#o$ election and noappeal on the results of the certi%cation, consent or run#o$ election ispending;)d4 a duly certi%ed union has commenced and sustained negotiations withthe employer in accordance with Article *0> of the !abor 6ode within theone#year period referred to in ection /5.c of this +ule, or there exists a


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bargaining deadlock which had been submitted to conciliation orarbitration or had become the subject of a valid notice of strike or lockoutto which an incumbent or certi%ed bargaining agent is a party;)e4 in case of an organized establishment, failure to submit the twenty#%vepercent )*0E4 support reDuirement for the %ling of the petition forcerti%cation election.

ection /0. (rohibited grounds for the denial7suspension of the petition. #All issues pertaining to the existence of employer#employee relationship,eligibility or mixture in union membership raised before the 1ed#Arbiterduring the hearing)s4 and in the pleadings shall be resolved in the sameorder or decision granting or denying the petition for certi%cation election.Any Duestion pertaining to the validity of petitioning union8s certi%cate ofregistration or its legal personality as a labor organization, validity ofregistration and execution of collective bargaining agreements shall beheard and resolved by the +egional Birector in an independent petition forcancellation of its registration and not by the 1edArbiter in the petition forcerti%cation election, unless the petitioning union is not found in the

Bepartment8s roster of legitimate labor organizations or an existingcollective bargaining agreement is unregistered with the Bepartment.

ection /-. +elease of ?rder7Becision within ten )/>4 days from the lasthearing, # The 1edArbiter shall release his7her order or decision grantingor denying the petition personally to the parties on an agreed date andtime.

ection /. Appeal. # The order granting the conduct of a certi%cationelection in an unorganized establishment shall not be subject to appeal.Any issue arising therefrom may be raised by means of protest on theconduct and results of the certi%cation election. The order granting the

conduct of a certi%cation election in an organized establishment and thedecision dismissing or denying the petition, whether in an organized orunorganized establishment, may be appealed to the ?@ce of theecretary within ten )/>4 days from receipt thereof. The appeal shall beveri%ed under oath and shall consist of a memorandum of appeal,speci%cally stating the grounds relied upon by the appellant with thesupporting arguments and evidence.

ection /3.


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ection *>. (eriod to +eply. # A reply to the appeal may be %led by anyparty to the petition within ten )/>4 days from receipt of the memorandumof appeal. The reply shall be %led directly with the ?@ce of the ecretary.

ection */. Becision of the ecretary. # The ecretary shall have %fteen)/04 days from receipt of the entire records of the petition within which to

decide the appeal. The %ling of the memorandum of appeal from the orderor decision of the 1ed#Arbiter stays the holding of any certi%cationelection. The decision of the ecretary shall become %nal and executoryafter ten )/>4 days from receipt thereof by the parties. o motion forreconsideration of the decision shall be entertained.

ection **. Transmittal of records to the +egional ?@ce. # 4 days of a subsisting agreement orduring the pendency of the representation case. ection

*0. on#availability of 1ed#Arbiter. #


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ection *. (re#election conference. # 4 days before the actual date of the


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election in two )*4 most conspicuous places in the company premises. Thenotice shall contain' )a4 the date and time of the election; )b4 names of allcontending unions; )c4 the description of the bargaining unit and the list ofeligible and challenged voters. The posting of the notice of election, theinformation reDuired to be included therein and the duration of postingcannot be waived by the contending unions or the employer.

ection . ecrecy and sanctity of the ballot. # To ensure secrecy of theballot, the "lection ?@cer, together with the authorized representatives ofthe contending unions and the employer, shall before the start of theactual voting, inspect the polling place, the ballot boxes and the pollingbooths.

ection 3. (reparation of ballots. # The "lection ?@cer shall prepare theballots in "nglish and &ilipino or the local dialect, corresponding to thenumber of voters and a reasonable number of extra ballots. All ballotsshall be signed at the back by the "lection ?@cer and authorizedrepresentative of each of the contending unions and employer. &ailure or

refusal to sign the ballots shall be considered a waiver thereof and the"lection ?@cer shall enter the fact of such refusal or failure in the recordsof the case as well as the reason for the refusal or failure to sign.

ection 2. 1arking of votes. # The voter must put a cross ) x 4 or check ) L4mark in the sDuare opposite the name of the union of his choice or 9oGnion9 if he7she does not want to be represented by any union :f a ballot istorn, defaced or left un%lled in such a manner as to create doubt orconfusion or to identify the voter, it shall be considered spoiled. :f thevoter inadvertently spoils a ballot, he7she shall return it to the "lection?@cer who shall destroy it and give him7her another ballot.

ection />. 6hallenging of votes. # An authorized representative of any ofthe contending unions and employer may challenge a vote before it isdeposited in the ballot box only on any of the following grounds' )a4 thatthere is no employer#employee relationship between the voter and thecompany; )b4 that the voter is not a member of the appropriate bargainingunit which petitioner seeks to represent.

ection //. (rocedure in the challenge of votes. #


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ection /*. ?n#the#spot Duestions. # The "lection ?@cer shall rule on anyDuestion relating to and raised during the conduct of the election. :n nocase, however, shall the election o@cer rule on any of the grounds forchallenge speci%ed in the immediately preceding section.

ection /=. (rotest; when perfected. # Any party#in#interest may %le aprotest based on the conduct or mechanics of the election. uch protestsshall be recorded in the minutes of the election proceedings. (rotests notso raised are deemed waived. The protesting party must formalize itsprotest with the 1ed#Arbiter, with speci%c grounds, arguments andevidence, within %ve )04 days after the close of the election proceedings. :fnot recorded in the minutes and formalized within the prescribed period,the protest shall be deemed dropped.

ection /5. 6anvassing of votes. # The votes shall be counted andtabulated by the "lection ?@cer in the presence of the representatives ofthe contending unions. Gpon completion of the canvass, the "lection

?@cer shall give each representative a copy of the minutes of the electionproceedings and results of the election. The ballots and the tally sheetsshall be sealed in an envelope and signed by the "lection ?@cer and therepresentatives of the contending unions and transmitted to the 1ed#Arbiter, together with the minutes and results of the election, withintwenty#four )*54 hours from the completion of the canvass.


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consent election within six )-4 months from date of declaration of failure ofelection.

ection /2. Action on the motion. #


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certi%ed as the exclusive bargaining agent of all the workers in theunit.


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()'u-ie bargaining repre-entatie:DO% Dept. Order 4# [2##-], R1 31 r/

(r) Employee refers to any person working for an employer. :tincludes one whose work has ceased in connection with any currentlabor dispute or because of any unfair labor practice and one who hasbeen dismissed from work but the legality of the dismissal is being

contested in a forum of appropriate jurisdiction.

NUHRWRAIN Manila Pavilion Hotel Chapter vs. Sec. of Labor, LR,Holi!a" Inn Manila Pavilion Hotel Labor Union an! Acesite Phils. HotelCorp., #R No. $%$&'$, '$ ()l" *++

The inclusion of atbontons vote was proper not because it was notDuestioned but because probationary employees have the right tovote in a certi%cation election. The votes of the six other probationaryemployees should thus also have been counted. AsAirtimeSpecialists, Inc. v. Ferrer-Calleja holds'

:n a certi%cation election, all rank and @le employees in t;eappropriate bargaining unitB w;et;er probationary orpermanent are entitled to vote. This principle is clearly stated inArt. *00 of the !abor 6ode which states that the labor organizationdesignated or selected by the majority of the employees in anappropriate bargaining unit shall be the exclusive representative ofthe employees in such unit for purposes of collective bargaining.6ollective bargaining covers all aspects of the employment relationand the resultant 6A negotiated by the certi%ed union binds allemployees in the bargaining unit. Hence, all rank and %le employees,probationary or permanent, have a substantial interest in theselection of the bargaining representative. ;e %ode makes no

distinction as to t;eir employment status as basis 4oreligibility in supporting t;e petition 4or certi@cationelection.;e law re4ers to all t;e employees in t;e bargainingunit. All t;ey need to be eligible to support t;e petition is tobelong to t;e bargaining unit. )"mphasis supplied4

A certi%cation election is the process of determining the sole andexclusive bargaining agent of the employees in an appropriatebargaining unit for purposes of collective bargaining. 6ollectivebargaining, refers to the negotiated contract between a legitimatelabor organization and the employer concerning wages, hours of workand all other terms and conditions of employment in a bargaining unit.MN

The signi%cance of an employees right to vote in a certi%cationelection cannot thus be overemphasized. &or he has considerableinterest in the determination of who shall represent him in negotiatingthe terms and conditions of his employment.
http://sc.judiciary.gov.ph/jurisprudence/2009/july2009/181531.htm#_ftn10http://sc.judiciary.gov.ph/jurisprudence/2009/july2009/181531.htm#_ftn10


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To be sure, the conduct of a certi%cation election has a two#foldobjective' to determine the appropriate bargaining unit and toascertain the majority representation of the bargaining representative,if the employees desire to be represented at all by anyone. :t is notsimply the determination of who between two or more contendingunions won, but whether it e$ectively ascertains the will of the

members of the bargaining unit as to whether they want to berepresented and which union they want to represent them.Having declared that no choice in the certi%cation election conductedobtained the reDuired majority, it follows that a run#o$ election mustbe held to determine which between H:1(H!G and petitioner shouldrepresent the rank#and#%le employees.A run#o$ election refers to an election between the labor unionsreceiving the two )*4 highest number of votes in a certi%cation orconsent election with three )=4 or more choices, where such a certi%edor consent election results in none of the three )=4 or more choices

receiving the majority of the valid votes cast; provided that the totalnumber of votes for all contending unions is at least %fty percent)0>E4 of the number of votes cast.M3N


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&or the purpose of de#certifying a union such as respondent, it must beshown that there was misrepresentation, false statement or fraud inconnection with the adoption or rati%cation of the constitution and by#lawsor amendments thereto; the minutes of rati%cation; or, in connection withthe election of o@cers, the minutes of the election of o@cers, the list ofvoters, or failure to submit these documents together with the list of the

newly elected#appointed o@cers and their postal addresses to the !+. M/0N

The bare fact that two signatures appeared twice on the list of those whoparticipated in the organizational meeting would not, to our mind, providea valid reason to cancel respondents certi%cate of registration. Thecancellation of a unions registration doubtless has an impairing dimensionon the right of labor to self#organization. &or fraud and misrepresentationto be grounds for cancellation of union registration under the !abor 6ode,the nature of the fraud and misrepresentation must be grave andcompelling enough to vitiate the consent of a majority of union members.

:n this case, we agree with the !+ and the 6A that respondent could not

have possibly committed misrepresentation, fraud, or falsestatements. The alleged failure of respondent to indicate withmathematical precision the total number of employees in the bargainingunit is of no moment, especially as it was able to comply with the *>Eminimum membership reDuirement. "ven if the total number of rank#and#%le employees of petitioner is 0*3, while respondent declared that itshould only be 500, it still cannot be denied that the latter would havemore than complied with the registration reDuirement.

-.2 ?o may, and @ere to, fi'e petition for 8

B< < !1>2, *

'",E

'epresentation %ases and 3nternal-"nion >isputes

"6T:? /.


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)e4 ames and addresses of other legitimate labor organizations in thebargaining unit;

)f4 :n an organized establishment, the signatures of at least twenty#%ve )*0E4percent of all employees in the appropriate bargaining unit; and

)g4 ?ther relevant facts.2

'",E 3

%E'33%A3/0 E,E%3/0$

ection /.


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$ection 2. ?;ere to @le. -A petition for certi%cation election shall be %ledwith the +egional ?@ce which issued the petitioning union8s certi%cate ofregistration7certi%cate of creation of chartered local. The petition shall beheard and resolved by the 1ed#Arbiter.


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The purpose of every certi%cation election is to determine theexclusive representative of employees in an appropriatebargaining unit for the purpose of collective bargaining. Acerti%cation election for the collective bargaining process is oneof the fairest and most e$ective ways of determining whichlabor organization can truly represent the working force.M/-N:n

determining the labor organization which represents theinterests of the workforce, those interests must be, as far asreasonably possible, homogeneous, so as to genuinely reach theconcerns of the individual members of a labor organization.

A'. 25 3neligibility o4 managerial employees to Doin anylabor organi:ation6 rig;t o4 supervisory employees. --1anagerial "mployees are not eligible to join, assist or form anylabor organization. upervisory employees shall not be eligiblefor membership in a labor organization of the rank#and#%leemployees but may join, assist or form separate labororganizations of their own.

6learly, based on this provision, a labor organization composedof both rank#and#%le and supervisory employees is no labororganization at all. :t cannot, for any guise or purpose, be alegitimate labor organization. ot being one, an organizationwhich carries a mixture of rank#and#%le and supervisoryemployees cannot possess any of the rights of a legitimate labororganization, including the right to %le a petition for certi%cationelection for the purpose of collective bargaining. :t becomesnecessary, therefore, anterior to the granting of an orderallowing a certi%cation election, to inDuire into the compositionof any labor organization whenever the status of the labor

organization is challenged on the basis of Article *50 of the!abor 6ode.

upervisory employees, as de%ned above, are those who, in theinterest of the employer, e$ectively recommend managerialactions if the exercise of such authority is not merely routinaryor clerical in nature but reDuire the use of independent

judgment.M*/NGnder the job description for level %ve employees,such personnel all engineers having a number of personnelunder them, not only oversee production of new models but alsodetermine manpower reDuirements, thereby inOuencingimportant hiring decisions at the highest levels. Thisdetermination is neither routine nor clerical but involves theindependent assessment of factors a$ecting production, whichin turn a$ect decisions to hire or transfer workers. The use ofindependent judgment in making the decision to hire, %re ortransfer in the identi%cation of manpower reDuirements wouldbe greatly impaired if the employee8s loyalties are torn betweenthe interests of the union and the interests of management. Asupervisory employee occupying a level %ve position would
http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/121084.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/121084.htm#_edn21http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/121084.htm#_edn16http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/121084.htm#_edn21


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therefore %nd it di@cult to objectively identify the exactmanpower reDuirements dictated by production demands.

This is precisely what the !abor 6ode, in reDuiring separateunions among rank#and#%le employees on one hand, andsupervisory employees on the other, seeks to avoid. The

rationale behind the 6ode8s exclusion of supervisors from unionsof rank#and#%le employees is that such employees, while in theperformance of supervisory functions, become the alter ego ofmanagement in the making and the implementing of keydecisions at the sub#managerial level. 6ertainly, it would bedi@cult to %nd unity or mutuality of interests in a bargaining unitconsisting of a mixture of rank#and#%le and supervisoryemployees. And this is so because the fundamental test of abargaining unit8s acceptability is whether or not such a unit willbest advance to all employees within the unit the properexercise of their collective bargaining rights. M**NThe 6ode itselfhas recognized this, in preventing supervisory employees from

joining unions of rank#and#%le employees.

:n the case at bar, as respondent union8s membership listcontains the names of at least twenty#seven )*4 supervisoryemployees in !evel &ive positions, the union could not, prior topurging itself of its supervisory employee members, attain thestatus of a legitimate labor organization. ot being one, itcannot possess the reDuisite personality to %le a petition forcerti%cation election.

The foregoing discussion, therefore, renders entirely irrelevant,the technical issue raised as to whether or not respondent union

was in possession of the status of a legitimate labor organizationat the time of %ling, when, as petitioner vigorously claims, theformer was still at the stage of processing of its application forrecognition as a legitimate labor organization. The union8scomposition being in violation of the !abor 6ode8s prohibition ofunions composed of supervisory and rank#and#%le employees, itcould not possess the reDuisite personality to %le for recognitionas a legitimate labor organization. :n any case, the factual issue,albeit ignored by the public respondent8s assailed +esolution,was adeDuately threshed out in the 1ed#Arbiter8s eptember *3,/225 ?rder.

1a5a"ta" Hi5hlan!s Intl #olf Cl)b, Inc. vs 1a5a"ta" Hi5hlan!s6plo"ees Union P#1W7,'& SCRA 2 3** (an *++'4

The statutory authority for the exclusion of supervisory employees in a

rank#and#%le union, and vice#versa, is Article *50 of the !abor 6ode, to

wit'
http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/121084.htm#_edn22http://sc.judiciary.gov.ph/jurisprudence/1997/feb1997/121084.htm#_edn22


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Article *50. Ineligiilit" o# managerial emplo"ees to join an" laor

organization$ rig!t o# supervisor" emplo"ees. 1anagerial employees

are not eligible to join, assist or form any labor

organization. upervisory employees shall not be eligible for

membership in a labor organization of the rank#and#%le employees but

may join, assist or form separate labor organizations of their own.


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As this 6ourt put it in (epsi#6ola (roducts (hilippines, :nc. v. ecretary

of !abor'M*-N

Besignation should be reconciled with the actual job description of

subject employees x x x The mere fact that an employee is designated

manager does not necessarily make him one. ?therwise, there wouldbe an absurd situation where one can be given the title just to be

deprived of the right to be a member of a union. :n the case

of *ational Steel Corporation vs. (aguesma ). +. o. />=5=, Panuary

*2, /22-4, it was stressed that'


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*4 if there exists a duly registered collective bargaining agreement,that the petition is %led within the sixty#day freedom period of suchagreement; or=4 if another union had been previously recognized voluntarily orcerti%ed in a valid certi%cation, consent or run#o$ election, that thepetition is %led outside the one#year period from entry of voluntary

recognition or conduct of certi%cation or run#o$ election and no appealis pending thereon.

)g4 in an organized establishment, the signature of at least twenty#%vepercent )*0E4 of all employees in the appropriate bargaining unit shallbe attached to the petition at the time of its %ling; and

)h4 other relevant facts.

-.- ?en to fi'e petition for 8$

DO40 9 !3

$ection 7. ?;en to @le. -A petition for certi%cation election may be%led anytime, except' )a4 when a fact of voluntary recognition has beenentered or a valid certi%cation, consent or run#o$ election has beenconducted within the bargaining unit within one )/4 year prior to the %lingof the petition for certi%cation election. of the !abor 6ode within the one year period referred to in theimmediately preceding paragraph;

)c4 when a bargaining deadlock to which an incumbent or certi%edbargaining agent is a party had been submitted to conciliation orarbitration or had become the subject of a valid notice of strike or lockout;

)d4 when a collective bargaining agreement between the employer and aduly recognized or certi%ed bargaining agent has been registered inaccordance with Article *=/ of the !abor 6ode.


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representation Duestion be entertained if, before the %ling of a petition forcerti%cation election, a bargaining deadlock to which an incumbent orcerti%ed bargaining agent is a party had been submitted to conciliation orarbitration or had become the subject of a valid notice of strike or lockout.

:f a collective bargaining agreement has been duly registered in

accordance with Article *=/ of the 6ode, a petition for certi%cationelection or a motion for intervention can only be entertained within sixty)->4 days prior to the expiry date of such agreement.

"6T:? 5. "$ects of early agreements. F The representation case shallnot, however, be adversely a$ected by a collective bargaining agreementregistered before or during the last sixty )->4 days of a subsistingagreement or during the pendency of the representation case.

"6T:? 0.


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)a4 ames of the contending unions;)b4 ame of the employer;)c4 Bescription of the bargaining unit, and)d4 !ist of eligible voters which shall be based on the payroll three )=4 months

prior to the %ling of the petition for certi%cation election.

The certi%cation election shall be held within twenty )*>4 calendar daysfrom receipt of the order by the parties.

$ Rep. Act No. 9481 (ec 8, amendin Art. 27, %&

-.-.2 *f organied e-tab'i-mentep. ;)t No. $491 -e) 9, amending ;rt. 2 at any time

b/ ?it du'y regi-tered 8B;

1/ 8ontra)t bar ru'e$ onl" durin 'reedom periodArt. 2-2, %&

Art. 272. =ro;ibition on certi@cation election.The ureau shall notentertain any petition for certi%cation election or any other action whichmay disturb the administration of duly registered existing collectivebargaining agreements a$ecting the parties except under Articles *0=,*0=#A and *0- of this 6ode. )As amended by ection /0, +epublic Act o.-/0, 1arch */, /2324

B< < !4, *

$E%3/0 . E8ects o4 early agreements. The representation caseshall not, however, be adversely a$ected by a collective bargainingagreement registered before or during the last sixty )->4 days of asubsisting agreement or during the pendency of the representation case.


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89C Labor Union:P#1W7 vs. Saa Saan5 Na5;a;aisan5 Man555a5a-a sa 89C:SI#L7, #R $/2*


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:f a collective bargaining agreement has been duly registered inaccordance with Article *=/ of the 6ode, a petition for certi%cationelection or a motion for intervention can only be entertained within sixty)->4 days prior to the expiry date of such agreement.

-/ Dead'o) bar ru'e5 R 3-, RR/ "-ame aboe#

4. Denia' of Cetition for 8ertifi)ation 'e)tion

4.1 &round- for denia':

Dept Order No. 40, 9 !14>122

ection /. Appeal. # The order granting the conduct of a certi%cation

election in an unorganized establishment shall not be subject to appeal.Any issue arising therefrom may be raised by means of protest on theconduct and results of the certi%cation election. The order granting theconduct of a certi%cation election in an organized establishment and thedecision dismissing or denying the petition, whether in an organized orunorganized establishment, may be appealed to the ?@ce of theecretary within ten )/>4 days from receipt thereof. The appeal shall beveri%ed under oath and shall consist of a memorandum of appeal,speci%cally stating the grounds relied upon by the appellant with thesupporting arguments and evidence.

ection /3. 4 days from receipt thereof by the parties. o motion forreconsideration of the decision shall be entertained.

ection **. Transmittal of records to the +egional ?@ce. #


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'",E 3 %/0>"% / %E'33%A3/0 E,E%3/0

ection /. +aCe of the case. # 4 days from receipt of the assignment. The pre#election conference shall set the mechanics for the election and shalldetermine, among others, the following' )a4 date, time and place of theelection, which shall not be later than forty#%ve )504 days from the date ofthe %rst pre#election conference, and shall be on a regular working dayand within the employer8s premises, unless circumstances reDuire

otherwise; )b4 list of eligible and challenged voters; )c4 number andlocation of polling places or booths and the number of ballots to beprepared with appropriate translations, if necessary; )d4 name of watchersor representatives and their alternates for each of the parties duringelection; )e4 mechanics and guidelines of the election.

ection =. 4days from the date of the %rst hearing.

ection 0. Kuali%cation of voters; inclusion#exclusion. # All employees whoare members of the appropriate bargaining unit sought to be representedby the petitioner at the time of the issuance of the order granting theconduct of a certi%cation election shall be eligible to vote. An employeewho has been dismissed from work but has contested the legality of thedismissal in a forum of appropriate jurisdiction at the time of the issuanceof the order for the conduct of a certi%cation election shall be considered a


35/41

Duali%ed voter, unless his7her dismissal was declared valid in a %naljudgment at the time of the conduct of the certi%cation election. :n case ofdisagreement over the voters8 list or over the eligibility of voters, allcontested voters shall be allowed to vote. ut their votes shall besegregated and sealed in individual envelopes in accordance with ections/> and // of this +ule.

ection -. (osting of otices. # The "lection ?@cer shall cause the postingof notice of election at least ten )/>4 days before the actual date of theelection in two )*4 most conspicuous places in the company premises. Thenotice shall contain' )a4 the date and time of the election; )b4 names of allcontending unions; )c4 the description of the bargaining unit and the list ofeligible and challenged voters. The posting of the notice of election, theinformation reDuired to be included therein and the duration of postingcannot be waived by the contending unions or the employer.

ection . ecrecy and sanctity of the ballot. # To ensure secrecy of theballot, the "lection ?@cer, together with the authorized representatives of

the contending unions and the employer, shall before the start of theactual voting, inspect the polling place, the ballot boxes and the pollingbooths.

ection 3. (reparation of ballots. # The "lection ?@cer shall prepare theballots in "nglish and &ilipino or the local dialect, corresponding to thenumber of voters and a reasonable number of extra ballots. All ballotsshall be signed at the back by the "lection ?@cer and authorizedrepresentative of each of the contending unions and employer. &ailure orrefusal to sign the ballots shall be considered a waiver thereof and the"lection ?@cer shall enter the fact of such refusal or failure in the recordsof the case as well as the reason for the refusal or failure to sign.

ection 2. 1arking of votes. # The voter must put a cross ) x 4 or check ) L4mark in the sDuare opposite the name of the union of his choice or 9oGnion9 if he7she does not want to be represented by any union :f a ballot istorn, defaced or left un%lled in such a manner as to create doubt orconfusion or to identify the voter, it shall be considered spoiled. :f thevoter inadvertently spoils a ballot, he7she shall return it to the "lection?@cer who shall destroy it and give him7her another ballot.

ection />. 6hallenging of votes. # An authorized representative of any ofthe contending unions and employer may challenge a vote before it isdeposited in the ballot box only on any of the following grounds' )a4 thatthere is no employer#employee relationship between the voter and thecompany; )b4 that the voter is not a member of the appropriate bargainingunit which petitioner seeks to represent.

ection //. (rocedure in the challenge of votes. #


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envelope the voter8s name, the union or employer challenging the voter,and the ground for the challenge. The sealed envelope shall then besigned by the "lection ?@cer and the representatives of the contendingunions and employer. The "lection ?@cer shall note all challenges in theminutes of the election and shall be responsible for consolidating allenvelopes containing the challenged votes. The envelopes shall be

opened and the Duestion of eligibility shall be passed upon only if thenumber of segregated voters will materially alter the results of theelection.

ection /*. ?n#the#spot Duestions. # The "lection ?@cer shall rule on anyDuestion relating to and raised during the conduct of the election. :n nocase, however, shall the election o@cer rule on any of the grounds forchallenge speci%ed in the immediately preceding section.

ection /=. (rotest; when perfected. # Any party#in#interest may %le aprotest based on the conduct or mechanics of the election. uch protestsshall be recorded in the minutes of the election proceedings. (rotests not

so raised are deemed waived. The protesting party must formalize itsprotest with the 1ed#Arbiter, with speci%c grounds, arguments andevidence, within %ve )04 days after the close of the election proceedings. :fnot recorded in the minutes and formalized within the prescribed period,the protest shall be deemed dropped.

ection /5. 6anvassing of votes. # The votes shall be counted andtabulated by the "lection ?@cer in the presence of the representatives ofthe contending unions. Gpon completion of the canvass, the "lection?@cer shall give each representative a copy of the minutes of the electionproceedings and results of the election. The ballots and the tally sheetsshall be sealed in an envelope and signed by the "lection ?@cer and the

representatives of the contending unions and transmitted to the 1ed#Arbiter, together with the minutes and results of the election, withintwenty#four )*54 hours from the completion of the canvass.


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ection /. &ailure of election. #


38/41

=. un>off 'e)tion-+

DO $, u'e A***

/A***$ N>OFF!

ection/. +un#o$ election. # E4 of the number of votes cast.

The voters8 list to be used in the run#o$ election shall be the same list as thatused in the %rst election. The ballots in the run#o$ election shall provide aschoices the unionsreceiving the highest and the second highest number of

the votes cast.The union receiving the greater number of valid votes castshall be certi%ed as the winner, subject to the applicableprovisions of +ule I::of this ook.

Dept Order No. 40, 10

'",E '"0-/ E,E%3/0$

ection /. , +ule :I.

7. Fai'ure of e'e)tion- > Dept Order No. 4#, R17 and 18

'",E 33 'E3$'A3/0 / %/,,E%3E !A'A3030 A'EEFE0$


39/41

ection /.


40/41

ection -. (eriod and manner of disposition of appeal. # The ureau and the ?@ceof the ecretary shall resolve the appeal within the same period and in the samemanner prescribed in +ule I: of these +ules.

ection . Term of representation status; contract bar rule. # The representationstatus of the incumbent exclusive bargaining agent which is a party to a duly

registered collective bargaining agreement shall be for a term of %ve )04 years fromthe date of the e$ectivity of the collective bargaining agreement. o petitionDuestioning the majority status of the incumbent exclusive bargaining agent orpetition for certi%cation election %led outside of the sixty#day period immediatelypreceding the expiry date of such %ve#year term shall be entertained by theBepartment. The %ve#year representation status acDuired by an incumbentbargaining agent either through single enterprise collective bargaining or multi#employer bargaining shall not be a$ected by a subseDuent collective bargainingagreement executed between the same bargaining agent and the employer duringthe same %ve#year period.

ection 3. +e#negotiation of collective bargaining agreements. # All provisions of a

collective bargaining agreement, except the representation status of the incumbentbargaining agent shall, as a matter of right, be renegotiated not later than three )=4years after its execution. The re#negotiated collective bargaining agreement shall berati%ed and registered with the same +egional ?@ce where the precedingagreement was registered. The same reDuirements and procedure in theregistration of collective bargaining agreements prescribed in the preceding rulesshall be applied. +G!"

333 %E0'A, 'E3$'1 / ,A!/' /'A03GA3/0$ A0> %/,,E%3E!A'A3030 A'EEFE0$

ection /. &orms for registration. # 6onsistent with the policy of the tate to promote

unionism, the ureau shall devise or prescribe such forms as are necessary tofacilitate the process of registration of labor organizations and collective bargainingagreements or of compliance with all documentary or reporting reDuirementsprescribed in these +ules.

ection *. Transmittal of records; central registry. # The !abor +elations Bivision ofthe +egional ?@ces shall, within forty#eight )534 hours from issuance of a certi%cateof creation of chartered locals or certi%cate of registration of labor organizations andcollective bargaining, transmit to the ureau a copy of such certi%catesaccompanied by a copy of the documents supporting registration. The !abor+elations Bivision of the +egional ?@ce shall also transmit to the ureau a copy ofevery %nal decision canceling or revoking the legitimate status of a labororganization or collective bargaining agreement, indicating therein the date whenthe decision became %nal. :n cases of chartering and a@liation or compliance withthe reporting reDuirements under +ule J, the +egional ?@ce shall transmit withintwo )*4 days from receipt thereof the original set of documents to the ureau,retaining one set of documents for its %le.

L. INTER-UNION AND INTRA-UNION DISPUTES


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DO% Department Order No. 4#$#-, (erie( o' 2##-

1. >;at are inter$ or intra$union di(pute( [DO4#, (1?2].

De 'a !a''e nier-ity -. De 'a !a''e nier-ity mp'oyee- ;--o)iation. &.. No.1=$2;at are e''ect( o' pendenc" o' inter$ or intra$union di(pute( [DO4#, (-].

-. >;o ma" 'ile an inter$ or intra$union di(pute( [DO4#, (4].

4. >;ere to 'ile inter$ or intra$union di(pute(.
http://sc.judiciary.gov.ph/jurisprudence/2012/august2012/169254.pdfhttp://sc.judiciary.gov.ph/jurisprudence/2012/august2012/169254.pdfhttp://sc.judiciary.gov.ph/jurisprudence/2012/august2012/169254.pdfhttp://sc.judiciary.gov.ph/jurisprudence/2012/august2012/169254.pdf

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