RULE VIII Internal Union-Disputes

SECTION 1. Complaint. — A complaint for any violation of the constitution and by-laws and the rights and conditions of membership under Article 242 may filed in the Regional Office where the union is domiciled.

SECTION 2. Who may file. — If the issue involves the entire membership of the union, the complaint shall be signed by at least 30 percent of the membership of the union.

In addition to the above requirement, the petition must show on its face that the administrative remedies provided for in the constitution and by-laws have been exhausted or such remedies are not readily available to the complaining members through no fault of their own. However, if the issue affects a single member only, such member may alone file his complaint.

SECTION 3. Contents of complaint. — The complaint must, among other things, contain the following:

(a) The person or persons charged;

(b) The specific violation/s committed;

(c) The relief/s prayed for; and

(d) Other relevant matters.

Such complaint must be in writing and under oath, and a copy thereof served on the respondent.

SECTION 4. Procedure. — Upon receipt of the complaint, the Regional Director shall immediately assign the case to a Med-Arbiter. The Med-Arbiter shall have twenty (20) working days within which to settle or decide the case. The decision of the Med-Arbiter shall state the facts and the reliefs granted, if any. If the conflicts involve a violation of the rights and conditions of the membership enumerated under Article 242 of the Code, the Med-Arbiter shall order the cancellation of the registration certificate of the erring union or the expulsion of the guilty party from the union, whichever is appropriate.

SECTION 5. Appeal. — The aggrieved party may, within ten (10) calendar days from receipt of the decision of the Med-Arbiter, appeal the same to the Secretary on any of the following grounds:

(a) Grave abuse of discretion; and (b) Gross incompetence.

The appeal shall consist of a position paper specifically stating the grounds relied upon by the appellant and supporting arguments under oath.

SECTION 6. Where to file appeal. — The appellant shall file his appeal, which shall be under oath and copy furnished the appellee in the Regional Office where the case originated.

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SECTION 7. Period to answer. — The appellee shall file his answer thereto within ten (10) calendar days from receipt of the appeal. The Regional Director shall, within five (5) calendar days, forward the entire records of the case to the Office of the Secretary.

SECTION 8. Decision of the Secretary final and inappealable. — The Secretary shall have fifteen (15) calendar days within which to decide the appeal from receipt of the records of the case. The decision of the Secretary shall be final and inappealable.

SECTION 9. Execution pending appeal. — The execution of the order of the Med-Arbiter shall be stayed pending appeal.

Topic: Union Representation, Petition

Case: Cruzvale Inc. vs. Laguesma

Facts:

1. On July 23, 1991, private respondent, a labor union, filed with the Department of Labor and Employment (DOLE), Regional Office No. IV, a petition for certification election among the regular rank-and-file workers of petitioner, docketed as Case No. RO-400-9107-RU-0107.

2. On August 27, 1991, petitioner filed its comment to the petition for certification election. It sought the denial of the petition on the following grounds:

(a) That no charter certificate evidencing the organization of a local union therein was attached to the petition or submitted to the DOLE at the time the petition was filed;

(b) That the respondent Union has not presented any proof that it is a legitimate labor organization; and

(c) That the Regional Office No. IV of the DOLE has no jurisdiction over the petition since petitioner Company's place of business is located at Cubao, Quezon City, which is outside the jurisdiction of the said Regional Office. Consequently, it is the National Capital Region or NCR of the DOLE which has jurisdiction over said petition (Rollo, p. 7).

MED-ARBITER DECISION:

1. On the status of the petitioner, it is established that the petitioner is a legitimate organization with Dole Registration Certificate No. 11106 LC (FED) and has a local chapter in the respondent's company located at Cainta, Rizal. The existence of a local union is likewise undisputed as the same is evidenced by Charter Certificate No. 82 issued to it by the petitioner, United Filipino Workers, and submitted to this Office, which automatically forms part of the records of this case.

2. As regards the second and third issues on whether or not the herein petition is duly filed or not, the allegation of the respondent that the same is defective in form and substance since no charter certificate and signatories were attached thereto at the time of filing of this petition is unmeritorious and without legal basis.

The respondent is an unorganized establishment which is governed by Article 257 of the Labor Code, as amended by R.A. No. 6715, which read as follows:

Petitions in unorganized establishments. — In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization (Rollo, pp. 74-75).

DOLE UNDERSECRETARY: upheld the order of respondent Med-Arbiter.

ISSUES:

1) Was there a legal error (by the DOLE usec) in LIMITING the certification election to Cruzvale Inc. employees in Cainta and did it disenfranchise other rank and file employees of the petitioner?

2) Is there an issue on the venue when the principal office is in Cubao?

HELD:

1) As to the second assigned error, petitioner claims that respondent Undersecretary should not have limited the certification election to petitioner's employees at the garment factory in Cainta but should have also covered those employed in the cinema business

We agree with the following observation made by respondent Undersecretary in his Decision dated September 25, 1992:

As regards the question on the composition of the bargaining unit, we stress once more that the call for the conduct of election covers all the regular rank-and-file employees of Cruzvale, Inc. at its garment-manufacturing corporation. The use of the pronoun "all" in our decision dated 16 December 1991 refers to all aforementioned

employees at the garment manufacturing operation based on the finding that they were the ones sought to be represented by the petitioner as clearly reflected on the face of the petition and as embodied in the Order of the Med-Arbiter dated 24 April 1992 which was affirmed by this Office on appeal.

Moreover, as stated in the questioned Decision the employees at the Cinema operation and those at the garment manufacturing operation do not share commonality of interest as the former clearly perform work entirely different from that of the latter. Thus, their separation into two (2) distinct bargaining units is proper. This is in accordance with the decision of the Supreme Court in the case of Belyca Corporation v. Dir. Pura Ferrer-Calleja, et al., G.R. No. 77395, 26 November 1988

2) As to the third assigned error, petitioner contends that the petition for certification election should have been filed with the regional office which has jurisdiction over the principal office of the employer in accordance with Section 1, Rule V, Book V of the Omnibus Rules Implementing the Labor Code (Rollo, p. 27). Said section provides:

Where to file. A petition for certification election shall be filed with the Regional Office, which has jurisdiction over the principal office of the Employer. The petition shall be in writing and under oath (Emphasis supplied).

The word "jurisdiction" as used in said provision refers to the venue where the petition for certification must be filed. Unlike jurisdiction, which implies the power of the court to decide a case, venue merely refers to the place where the action shall be brought (Sulo ng Bayan, Inc. v. Araneta, Inc., 72 SCRA 347 [1976]). Venue touches more the convenience of the parties rather than the substance of the case (Consolidated Bank v. Intermediate Appellate Court, 198 SCRA 34 [1991]).

Section 1, Rule V, Book V of the Omnibus Rules Implementing the Labor Code refers only to cases where the place of work of the employees and the place of the principal office of the employer are within the same territorial jurisdiction of the Regional Office where the petition for certification election is filed. The said provision does not apply to the filing of petitions for certification election where the place of work of the employees and the place of principal office of the employer are located within the territorial jurisdictions of different regional offices. We assume that in the drafting of the Omnibus Rules, the Secretary of Labor and Employment took into consideration the fact that there are many companies with factories located in places different from places where the corporate offices are located.

The worker, being the economically-disadvantaged party whether as complainant, petitioner or respondent, as the case may be, the nearest governmental machinery to settle a labor

dispute must be placed at his immediate disposal and the employer must in no case be allowed a choice in favor of another competent agency sitting in another place to the inconvenience of the worker (Nestle Philippines, Inc. v. National Labor Relations Commission, 209 SCRA 834 [1992]).

Petitioner has not shown how it will be prejudiced by the hearing on the petition for certification election before the Regional Office No. IV, which has its offices in Quezon City, the same city where the principal place of business of petitioner is located. Petitioner is, therefore, being unreasonable in demanding that the petition for certification election be filed with the National Capital Region Office, which holds offices in Manila.

Unlike in the Rules governing the procedure before Regional Offices, the New Rules of Procedure of the National Labor Relations Commission prescribes that all cases in which labor arbiters have jurisdiction should be filed in the branch office which has territorial jurisdiction over the "workplace of the complainant/petitioner" (Rule IV, Sec. 1[a]). The NLRC Rules defines the workplace as follows:

For purposes of venue, workplace shall be understood as the place or locality where the employee is regularly assigned when the cause of action arose. It shall include the place where the employee is supposed to report back after a temporary detail, assignment or travel.

The Omnibus Rules Implementing the Labor Code has no provision as to when an objection to improper venue may be raised. The Med-Arbiter ruled that where the employer had appeared twice at the hearing of the petition for certification election without questioning the venue, said employer was barred from raising the issue in the subsequent proceedings.

He observed:

This practice of deliberately delaying the legal proceedings cannot be countenanced any further; otherwise, the ends of justice will forever be defeated. We don't see any reason for the respondent to delay as it did, the proceedings of the case only to assail later on the jurisdiction of the office. This issue could have been brought up or objected to during the initial hearing (Rollo, p. 77).

Respondent Undersecretary accepted the stance of the Med-Arbiter, that the question of the venue in representation cases should be raised at the first hearing.

DISPOSITIVE: No grave abuse of discretion.WHEREFORE, the petition is DISMISSED and the temporary restraining order is LIFTED.

CERTIFICATION PROCESS:

1st misconception: CBA has an expiration of 5 yearsWhy? The 5 year period only pertains to the representation aspect.

2nd misconceptopn: When you say Freedom Period yan yung ichchallenge mo yung Sole EBA. – It pertains to 60 days PRIOR to the expiration of the 5 year period from execution of the CBA meaning it does not pertain to the EXPIRATION kasi nga walang 5 – year expiration period

That’s the reason under the DO 40 Rule 8 Sec 14 that the 60 day period based on the original CBA shall not be affected by any amendment extension or renewal.

**FREEDOM PERIOD

2 KINDS

1. 60 days before the expiration of the 5th year of the CBA

2. 60 days before the expiration of the CBA itself wherein you can negotiate for a new CBA

Topic: Union Representation, Union as an Initiating Party, Organized Establishment, Petition BEFORE Freedom Period

Case: Atlantic, Gulf and Pacific Company of Manila, Inc. vs. Laguesma

Facts: 1) Petitioner Atlantic, Gulf and Pacific Company of Manila, Inc. is

engaged in the construction and fabrication business and conducts

its construction business in different construction sites here and abroad while its fabrication operations are conducted by its Steel and Marine Structures Group at its Batangas Marine and Fabrication Yard ("BMFY," for brevity) in Bauan, Batangas where the steel structures and other heavy marine works are fabricated.

2) In the exercise of its management prerogative, petitioner has adopted the practice of hiring project employees when existing fabrication capacity cannot absorb increases in job orders for steel structures and other heavy construction works.

3) Said project employees are covered by the Project Worker/Reliever Employment Agreements which indicate the specific projects to which they are assigned and the duration of their employment. Upon the expiration of their contracts/agreements, the employment of these employees is automatically terminated unless the projects to which they are assigned have not yet been completed; in which case, they are rehired for the remainder of the project.

4) The positions occupied by the regular rank-and-file employees and the project employees are basically similar in nature and are directly related to the main line of petitioner's business.

5) Petitioner signed a Collective Bargaining Agreement with the AG&P United Rank & File Association ("URFA," for brevity), which is the sole and exclusive bargaining agent of all the regular rank-and-file employees of the petitioner.

6) Private respondent Lakas ng Manggagawa sa AG&P-SMSG-National Federation of Labor ("LAKAS-NFL," for brevity) filed a Petition for Certification Election with the Med-Arbitration Unit to be certified as the sole and exclusive bargaining agent of the regular non-project employees of the Steel and Marine Structure at the BMFY representing approximately 1,000 employees or that a certification be conducted among said employees.

7) On September 25, 1990, public respondent Med-Arbiter Tomas F. Falconitin of the Department of Labor and Employment ordered that certification election among the regular "Project Workers"/employees of Atlantic Gulf and Pacific Company of Manila, Inc. at its Steel and Marine Structures Group (AG&P-SMSG) be conducted immediately. The Representation Officer is hereby directed to conduct the usual pre-election conference in connection thereof with the following choices to consider:

1 Lakas Ng Manggagawa Sa AG&P-SMSG National Federation of Labor (LAKAS-NFL); and

2 No Union.SO ORDERED.

8) On October 11, 1990, petitioner filed an appeal with the Department of Labor and Employment.

9) USEC Bienvenido E. Laguesma denied petitioner's appeal for lack of merit.

10) On November 28, 1990, petitioner's project employees at its SMSG site who were not given regular employment appointment on October 26, 1990 went on strike and completely paralyzed petitioner's operations in Bauan, Batangas.

11) Said strike was settled in a conciliation conference convened by the National Conciliation and Mediation Board on December 8, 1990 when an Agreement was reached by the petitioner and private respondent LAKAS-NFL wherein petitioner agreed to formally regularize all the remaining alleged project employees with at least one year of service pending the final outcome of the certification election case. 5 Thereafter, 686 additional regular project employees were regularized effective December 1, 1990 in pursuance to said Agreement.

12) On December 6, 1990, petitioner received a letter from URFA informing the former about the admission into URFA of the membership of 410 regular project employees who were formally regularized by the petitioner effective November 1, 1990.

13) On that same date, petitioner filed a Motion for Reconsideration on the Resolution dated November 22, 1990 alleging that the employees sought to be represented by the private respondent LAKAS-NFL are regular employees of the petitioner and are deemed included in the existing Collective Bargaining Agreement of the regular rank-and-file employees of the petitioner which motion was subsequently denied by the public respondent Undersecretary Laguesma

14) Hence, this petition assailing said Order and Resolution

Issues:

1) Does the Contract Bar Rule Apply to this case?2) Did they fail to consider the supervening fact that bargaining unit of

the alleged “regular project workers” has ceased to exist by the regularization of all the alleged project workers with at least one year of service?

HELD: The contentions of the petitioner are meritorious.

Section 1 of Article II of petitioner's Collective Bargaining Agreement with URFA defined appropriate bargaining unit as follows:

ARTICLE II

SCOPESec. 1. Appropriate Bargaining Unit — The appropriate bargaining unit covered by this Agreement consists of those regular rank-and-file employees of the COMPANY who have remained as such up to the

date of execution of this Agreement, as well as those who may hereafter acquire the same status. It is hereby understood and agreed that the following are not within the appropriate bargaining unit and, therefore, this Agreement is not applicable to them, to wit:

a. Executives, division department and section heads, staff members, managerial employees, and executive secretaries;

b. Workers hired by the COMPANY as project employees as contemplated by existing laws including relievers of regular employees who are sent abroad are not covered by this Contract. Provided, however, that regular employees who are assigned as relievers shall continue to be covered by this Contract, and provided further that relievers who are assigned to regular positions which may become vacant shall be duly considered for such regular positions after attaining the six months probationary period.

c. Security personnel.

Although the aforementioned definition does not include petitioner's regular project employees in the coverage of the existing Collective Bargaining Agreement between petitioner and the URFA, the regularization of all the regular project employees with at least one year of service and the subsequent membership of said employees with the URFA mean that the alleged regular project employees whom respondent LAKAS-NFL seeks to represent are, in fact, regular employees by contemplation of law and included in the appropriate bargaining unit of said Collective Bargaining Agreement consequently, the bargaining unit which respondent LAKAS-NFL seeks to represent has already ceased to exist.

The Labor Code provides:

Art. 232. Prohibition on Certification Election. — The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties except under

Articles 253, 253-A and 256 of this Code.

Paragraph 2 of Section 3, Rule V, Book V of the Implementing Rules And Regulations likewise provides:

If a collective bargaining agreement has been duly registered in accordance with Article 231 of the Code, a petition for certification election or a motion for intervention can only be entertained within sixty (60) days prior to the expiry date of such agreement – Leo: mali yan ha. Tingnan mo yung code.

Consequently, the existence of a duly registered Collective Bargaining Agreement between the petitioner and URFA, which is the sole and exclusive bargaining representative of all the regular rank-

and-file employees of the petitioner including the regular project employees with more than one year of service, bars any other labor organization from filing a petition for certification election except within the 60-day period prior to the expiration of the Collective Bargaining Agreement.

To rule otherwise would negate the legislative intent in the enactment of Article 232 of the Labor Code which was designed to ensure industrial peace between the employer and its employees during the existence of the collective bargaining agreement.

WHEREFORE, finding the petition meritorious, the assailed Resolution of November 22, 1990 and the Order dated December 11, 1990 are hereby annuled and set aside. This temporary restraining order issued is made permanent. Costs against respondents.SO ORDERED.

Topic: The Union as Initiating Party, Organized Establishment, Petition AFTER Freedom Period

Case: National Congress of Union in Sugar Industry v. Ferrer-Calleja

Facts:

1) Petitioner National Congress of Unions in the Sugar Industry of the Philippines (NACUSIP-TUCP) is a legitimate national labor organization duly registered with the Department of Labor and Employment.

2) Respondent Honorable Pura Ferrer-Calleja is impleaded in her official capacity as the Director of the Bureau of Labor Relations of the Department of Labor and Employment, while private respondent National Federation of Sugar Workers (NFSW-FGT-KMU) is a labor organization duly registered with the Department of Labor and Employment.

3) Dacongcogon Sugar and Rice Milling Co., Inc. (Dacongcogon) based in Kabankalan, Negros Occidental employs about five hundred (500) workers during milling season and about three hundred (300) on off-milling season.

4) Private respondent NFSW-FGT-KMU and employer Dacongcogon entered into a collective bargaining agreement (CBA) for a term of three (3) years, which was to expire on November 14, 1987.

5) When the CBA expired, private respondent NFSW-FGT-KMU and Dacongcogon negotiated for its renewal. The CBA was extended for another three (3) years with reservation to negotiate for its amendment, particularly on wage increases, hours of work, and other terms and conditions of employment.

6) However, a deadlock in negotiation ensued on the matter of wage increases and optional retirement.

7) In order to obviate friction and tension, the parties agreed on a suspension to provide a cooling-off period to give them time to evaluate and further study their positions. Hence, Labor Management Council was set up and convened, with a representative of the Department of Labor and Employment, acting

as chairman, to resolve the issues.8) Petitioner NACUSIP-TUCP filed a petition for direct certification or

certification election among the rank and file workers of Dacongcogon.

9) On January 27, 1989, private respondent NFSW-FGT-KMU moved to dismiss the petition on the following grounds, to wit:

i) Deadlock negotiation between intervenor and respondent-central

ii) Petition was filed out of time

10) Med-Arbiter denied the motion to dismiss filed by private respondent NFSW-FGT-KMU and directed the conduct of certification election among the rank and file workers of Dacongcogon

CERT. election among the rank and file employees/workers of the Dacongcogon Sugar and Rice Milling Co., situated at Kabankalan, Neg. Occ., be conducted with the following choices:

(1) National Congress of Unions in the Sugar Industry of the Philippines (NACUSIP-TUCP);(2) National Federation of Sugar Workers (NFSW);(3) No Union.

11) On February 9, 1989, private respondent filed a motion for reconsideration and/or appeal

12) Petitioner filed its opposition to the motion for reconsideration praying that the motion for reconsideration and/or appeal be denied for lack of merit.

13) Respondent Director of the Bureau of Labor Relations rendered a resolution reversing the order of the Med-Arbiter FOR BEING filed out of time.

Issue: Whether or not a petition for certification election may be filed after the 60-day freedom period.

Petitioner maintains that respondent Director Calleja committed grave abuse of discretion amounting to excess of jurisdiction in rendering the resolution dated June 26, 1989 setting aside, vacating and reversing the order dated February 8, 1989 of Med-Arbiter Serapio, in the following manner:

1) by setting aside and vacating the aforesaid Order dated February 8, 1989 of Med-Arbiter Felizardo Serapio and in effect dismissing the Petition for Direct or Certification Election of Petitioner NACUSIP-TUCP (Annex "A" hereof) without strong valid, legal and factual basis;

2) by giving a very strict and limited interpretation of the provisions of Section 6, Rule V, Book V of the Implementing Rules and Regulations of the Labor Code, as amended, knowing, as she does, that the Labor Code, being a social legislation, should be liberally interpreted to afford the workers the opportunity to exercise their legitimate legal and constitutional rights to self-organization and to free collective bargaining;

3) by issuing her questioned Resolution of June 26, 1989 knowing fully well that upon the effectivity of Rep. Act No. 6715 on 21 March 1989 she had no longer any appellate powers over decisions of Med-Arbiters in cases of representation issues or certification elections;

4) by ignoring intentionally the applicable ruling of the Honorable Supreme Court in the case of Kapisanan ng Mga Manggagawa sa La Suerte-FOITAF vs. Noriel, L-45475, June 20, 1977;

5) by clearly failing to appreciate the significance (sic) of the fact that for more than four (4) years there has been no certification election involving the rank and file workers of the Company; and,

6) by frustrating the legitimate desire and will of the workers of the Company to determine their sole and exclusive collective bargaining representative through secret balloting. (Rollo, pp. 9-10)

However, the public respondent through the Solicitor General stresses that the petition for certification election was filed out of time. The records of the CBA at the Collective Agreements Division (CAD) of the Bureau of Labor Relations show that the CBA between Dacongcogon and private respondent NFSW-FGT-KMU had expired on November 14, 1987, hence, the petition for certification election was filed too late, that is, a period of more than one (1) year after the CBA expired.

The public respondent maintains that Section 6 of the Rules Implementing Executive Order No. 111 commands that the petition for certification election must be filed within the last sixty (60) days of the CBA and further reiterates and warns that any petition filed outside the 60-day freedom period "shall be dismissed outright." Moreover, Section 3, Rule V, Book V of the Rules Implementing the Labor Code enjoins the filing of a representation question, if before a petition for certification election is filed, a bargaining deadlock to which the bargaining agent is a party is submitted for conciliation or arbitration.

Finally, the public respondent emphasizes that respondent Director has jurisdiction to entertain the motion for reconsideration interposed by respondent union from the order of the Med-Arbiter directing a certification election. Public respondent contends that Section 25 of Republic Act No. 6715 is not applicable, "(f)irstly, there is as yet no rule or regulation established by the Secretary for the conduct of elections among the rank and file of employer Dacongcogon; (s)econdly, even the mechanics of the election which had to be first laid out, as directed in the Order dated February 8, 1989 of the Med-Arbiter, was aborted by the appeal therefrom interposed by respondent union; and (t)hirdly, petitioner is estopped to question the jurisdiction of respondent Director after it filed its opposition to respondent union's Motion for Reconsideration (Annex 'F,' Petition) and without, as will be seen, in any way assailing such jurisdiction. . . ." (Rollo, p.66)

We find the petition devoid of merit.

A careful perusal of Rule V, Section 6, Book V of the Rules Implementing the Labor Code, as amended by the rules implementing Executive Order No. 111 provides that:

Sec. 6. Procedure — . . .In a petition involving an organized establishment or enterprise where the majority status of the incumbent collective bargaining union is questioned by a legitimate labor organization, the Med-Arbiter shall immediately order the conduct of a certification election if the petition is filed during the last sixty (60) days of the collective bargaining agreement. Any petition filed before or after the sixty-day freedom period shall be dismissed outright.

The sixty-day freedom period based on the original collective bargaining agreement shall not be affected by any amendment, extension or renewal of the collective bargaining agreement for purposes of certification election.

xxx xxx xxx

The clear mandate of the aforequoted section is that the petition for certification election filed by the petitioner NACUSIP-TUCP should be dismissed outright, having been filed outside the 60-day freedom period or a period of more than one (1) year after the CBA expired.It is a rule in this jurisdiction that only a certified collective bargaining agreement — i.e., an agreement duly certified by the BLR may serve as a bar to certification elections. (Philippine Association of Free Labor Unions (PAFLU) v. Estrella, G.R. No. 45323, February 20, 1989, 170 SCRA 378, 382) It is noteworthy that the Bureau of Labor Relations duly certified the November 14, 1984 collective bargaining agreement.

Hence, the contract-bar rule as embodied in Section 3, Rule V, Book V of the rules implementing the Labor Code is applicable.

This rule simply provides that a petition for certification election or a motion for intervention can only be entertained within sixty days prior to the expiry date of an existing collective bargaining agreement. Otherwise put, the rule prohibits the filing of a petition for certification election during the existence of a collective bargaining agreement except within the freedom period, as it is called, when the said agreement is about to expire. The purpose, obviously, is to ensure stability in the relationships of the workers and the management by preventing frequent modifications of any collective bargaining agreement earlier entered into by them in good faith and for the stipulated original period. (Associated Labor Unions (ALU-TUCP) v. Trajano, G.R. No. 77539, April 12, 1989, 172 SCRA 49, 57 citing Associated Trade Unions (ATU v.

Trajano, G.R. No. L-75321, 20 June 1988, 162 SCRA 318, 322-323)

Anent the petitioner's contention that since the expiration of the CBA in 1987 private respondent NFSW-FGT-KMU and Dacongcogon had not concluded a new CBA, We need only to stress what was held in the case of Lopez Sugar Corporation v. Federation of Free Workers, Philippine Labor Union Association (G.R. No. 75700-01, 30 August 1990, 189 SCRA 179, 191) quoting Article 253 of the Labor Code that "(i)t shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties." Despite the lapse of the formal effectivity of the CBA the law still considers the same as continuing in force and effect until a new CBA shall have been validly executed.

Hence, the contract bar rule still applies.

Besides, it should be emphasized that Dacongcogon, in its answer stated that the CBA was extended for another three (3) years and that the deadlock was submitted to the Labor Management Council.All premises considered, the Court is convinced that the respondent Director of the Bureau of Labor Relations did not commit grave abuse of discretion in reversing the order of the Med-Arbiter.

ACCORDINGLY, the petition is DENIED and the resolution of the respondent Director of the Bureau of Labor Relations is hereby AFFIRMED.

Topic: Filing Party, Misrepresentation of Union OfficersCase: DHL Phil. Corp. United RAF Association – FFW v. Buklod ng Manggagawa

Facts1. A certification election was conducted among the regular rank

and file employees in the main office and the regional branches of DHL Philippines Corporation. The contending choices were DHL’s and "no union."

2. On the basis of the results of the certification election, with petitioner receiving 546 votes and "no union" garnering 348 votes, the election officer certified the former as the sole and exclusive bargaining agent of the rank and file employees of the corporation.

3. Buklod ng Manggagawa ng DHL Philippines Corporation (BUKLOD) filed with the Industrial Relations Division of the Department of Labor and Employment (DOLE) a Petition for the nullification of the certification election.

4. This misrepresentation was supposedly the basis for their selection of petitioner in the certification election.

5. Med-Arbiter nullified the certification election and ordered the holding of another one with the following contending choices: petitioner, respondent, and "no choice."

6. Setting aside the Decision of Med-Arbiter, DOLE Undersecretary held on appeal that the issue of representation

had already been settled with finality in favor of petitioner, and that no petitions for certification election would be entertained within one year from the time the election officer had issued the Certification Order.

7. CA held that the withdrawal of a great majority of the members of petitioner -- 704 out of 894 of them -- provided a compelling reason to conduct a certification election anew in order to determine, once and for all, which union reflected their choice.

8. According to the appellate court, broader considerations should be accorded the disaffiliating member-employees and a new election held to finally ascertain their will, consistent with the constitutional and labor law policy of according full protection to labor’s right to self-organization. The CA added that the best forum to determine the veracity of the withdrawal or retraction of petitioner’s former members was another certification election.

9. The appellate court also held that the election officer’s issuance of a Certification Order was precipitate because, prior thereto, BUKLOD had filed with the med-arbiter a Petition for nullification of the election. Furthermore, the Certification was not in accordance with Department Order No. 9 (DO 9), Series of 1997.

10. The charges of fraud and deceit, lodged immediately after the election by petitioner’s former members against their officers, should have been treated as protests or issues of eligibility within the meaning of Section 13 of DO 9, hence, this Petition.

IssuesWhether or not the BUKLOD failed to follow strictly the procedural technicalities regarding the period for filing their protest.

RulingThe Petition lacks merit.DHL argues that the CA gravely erred in rendering its assailed Decision, considering that no protest or challenge had been formalized within five days, or raised during the election proceedings and entered in the minutes thereof. DHL adds that BUKLOD did not file any protest, either, against the alleged fraud and misrepresentation by the former’s officers during the election.We disagree. When the med-arbiter admitted and gave due course to BUKLOD’s Petition for nullification of the election proceedings, the election officer should have deferred issuing the Certification of the results thereof. Section 13 of the Implementing Rules cannot strictly be applied to the present case.BUKLOD’s contention is that a number of employees were lured by their officers into believing that DHL was an independent union. Since the employees had long desired to have an independent union that would represent them in collective bargaining, they voted "yes" in favor of DHL. Having been misled, a majority of them eventually disaffiliated themselves from it and formed an independent union, BUKLOD herein, which thereafter protested the conduct of the election. Having been formed just after such exercise by the defrauded employees who were former members of DHL, BUKLOD

could not have reasonably filed its protest within five days from the close of the election proceedings.Notably, after it had applied for registration with the Bureau of Labor Relations (BLR), BUKLOD filed its Petition to nullify the certification election. DHL insistently opposed the Petition, as BUKLOD had not yet been issued a certificate of registration at the time. Because such certificate was issued in favor of the latter four days after the filing of the Petition, the misgivings of the former were brushed aside by the med-arbiter. Indeed, the fact that BUKLOD was not yet a duly registered labor organization when the Petition was filed is of no moment, absent any fatal defect in its application for registration.The circumstances in the present case show that the employees did not sleep on their rights. Hence, their failure to follow strictly the procedural technicalities regarding the period for filing their protest should not be taken against them. Mere technicalities should not be allowed to prevail over the welfare of the workers.15 What is essential is that they be accorded an opportunity to determine freely and intelligently which labor organization shall act on their behalf.16 Having been denied this opportunity by the betrayal committed by DHL’s officers in the present case, the employees were prevented from making an intelligent and independent choice.Petition is DENIED, and the assailed Decision AFFIRMED. Costs against petitioner.

Topic: Certification Election, Form of PetitionCase: National Mines vs. Secretary of Labor

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court assailing the Decision dated August 4, 1992 of the secretary of Labor in Case No. OS-A-4-102-92. In said decision, the Secretary of Labor affirmed the decision of the Med-Arbiter in Cases No. NCR-OD-M-91-09-106 and NCR-OD-M-91-10-131, which granted the petition of respondent Federation of Free Workers-Samahang Mangagawa sa Quality Container Corporation (FFW-SMQCC), for a certification election to be conducted among the rank and file employees of respondent Quality Container Corporation (QCC).Petitioner and respondent FFW-SMQCC are local chapters of labor federations duly registered with the Department of Labor and Employment (DOLE). Petitioner is the exclusive bargaining agent of all the rank and file workers of respondent QCC, a domestic corporation engaged in the metal industry.On September 27, 1991, 38 days before the expiration of the Collective Bargaining Agreement between petitioner and respondent QCC, respondent FFW-SMQCC through Reynito de Pedro filed with the DOLE Industrial Relations Division, National Capital Region (NCR-OD-M-91-09-106) a petition for certification election. The petition was accompanied by a list of signatures of company employees, who signified their consent to a certification election among the rank and file employees of QCC (Rollo, pp. 79-83).Petitioner herein moved to dismiss the petition of respondent FFW-SMQCC on the grounds that: (a) the required consent to the certification election of at least 25% of the rank and file employees

had not been met; (b) the petition was not verified as required by law; and (c) Reynito de Pedro, who was also the president of petitioner, had no personality to file the petition on behalf of FFW-SMQCC.On October 30, 1991, respondent FFW-SMQCC, filed a second petition for certification election, this time signed and verified by De Pedro (NCR-OD-91-10-131).On January 24, 1992, the Med-Arbiter granted the petition for certification election of respondent FFW-SMQCC in a decision, the dispositive portion of which, reads as follows:WHEREFORE, premises considered, let a certification election be conducted among the rank-and-file employees of Quality Container Corporation within twenty (20) days from receipt hereof with the usual pre-election conference of the parties to thresh out the mechanics and other details of the election. The payroll of the company three (3) months prior to the filing of the petition shall be used as the basis in determining the list of eligible voters.The choices are:a) Federation of Free Workers (FFW)- Samahang Mangagawa sa Quality Container Corporation Chapter;b) National Mines and Allied Workers' Union (NAMAWU); andc) No union (Rollo, pp. 24-25).Petitioner appealed this decision to the Secretary of Labor (OS-A-4-102-92). On June 17, 1992, the Secretary of Labor rendered a decision, denying the appeal for lack of merit and affirming the order of the Med-Arbiter.Hence, this petition.Petitioner contends that the assailed decision was issued in grave abuse of discretion for the following reasons: (1) that Reynito de Pedro is not the authorized representative of respondent FFW-SMQCC, he being the duly elected president of petitioner; (2) that the filing of the second petition for certification election did not cure, much less correct, the defects in the first petition; and (3) that in the first and second petitions, the signatures of the 141 employees, who signified their support thereto, were either forged or pre-maturely obtained prior to the 60-day period before the expiration of the existing collective bargaining agreement.The petition is not impressed with merit.First, although Reynito de Pedro was the duly elected president of petitioner, he had disaffiliated himself therefrom and joined respondent FFW-SMQCC before the petition for certification election was filed on September 27, 1991. The eventual dismissal of De Pedro from the company is of no moment, considering that the petition for certification election was filed before his dismissal on August 22, 1992.Second, verification of a pleading is a formal, not jurisdictional requisite (Buenaventura v. Uy, 149 SCRA 22 [1987]; In the Matter of the Change of Name of Antonina B. Oshita, 19 SCRA 700 [1967]). Even if verification is lacking and the pleading is formally defective, the courts may dispense with the requirement in the interest of justice and order of correction of the pleading accordingly. Generally, technical and rigid rules of procedure are not binding in labor cases; and this rule is specifically applied in certification election proceedings, which are non-litigious but merely investigative and non-

adversarial in character (Associated Labor Unions v. Ferrer-Calleja, 179 SCRA 127 [1989]); Tanduay Distillery Labor Union v. NLRC, 149 SCRA 470 [1987]). Nevertheless, whatever formal defects existed in the first petition were cured and corrected in the second petition for certification election.Third, attached to the original petition for certification election was a list of 141 supporting signatures out of the 300 employees belonging to the appropriate bargaining unit to be represented by respondent FFW-SMQCC. Respondent QCC sought to delete from the list some 36 signatures which are allegedly forged and falsified. Petitioner, likewise, submitted a joint affidavit of 13 employees, disclaiming the validity of the signatures therein.Granting that 36 signatures were falsified and that 13 was disowned, this leaves 92 undisputed signatures which is definitely more than 75 — i.e., 25% of the total number of company employees required by law to support a petition for certification election. The disclaimer of 13 employees by their respective signatures covers only their own personal participation and cannot in any way be extended to include the rest of those who did not question the same.Moreover, the fact that the list of signatures is undated does not necessarily mean that the signatures were obtained prior to the 60-day period before the expiration of the existing collective bargaining agreement. What is important is that the petition for certification election must be filed during the freedom period and that the 25% requirement of supporting signatures be met upon the filing thereof. These requirements have been compiled by respondent FFW-SMQCC in their first and second petitions, and it was thus incumbent upon the Med-Arbiter to order a certification election to be conducted among the rank and file employees of the company (Labor Code of the Philippines, Art. 256; Warren Mfg. Workers' Union v. Bureau of Labor Relations, 159 SCRA 387 [1988]; Samahang Mangagawa ng Pacific Mills v. Noriel, 134 SCRA 152 [1985]).If indeed there are employees in the bargaining unit who refused to be represented by respondent FFW-SMQCC, with all the more reason should a certification election be held where the employees themselves can freely and voluntarily express by secret ballot their choice of bargaining representative. A certification election is the most effective and expeditious way to determine which labor organization can truly represent the working force in the appropriate bargaining unit of the company (Central Negros Electric Cooperative, Inc. v. Sec. of Labor, 201 SCRA 584 [1991]; National Association of Free Trade Unions v. Bureau of Labor Relations, 164 SCRA 12 [1988]).We find no grave abuse of discretion on the part of the Secretary of Labor.WHEREFORE, the petition is DISMISSED.

Topic: Certification Election, Substantial Support

Case: Port Workers Union etc. v. DOLE

FACTS

-The collective bargaining agreement of the International Container Terminal Services, Inc. (ICTSI) with private respondents Associate Port Checkers and Workers Union (APCWU), the incumbent union, was due to expire on April 14, 1990. Other unions were seeking to represent the laborers in the negotiation of the next CBA and were already plotting their moves.-on March 14, 1990, when the Sandigan ng Manggagawa sa Daungan (SAMADA) filed a petition for certification election. The consent signatures of at least 25% of the employees in the bargaining unit were submitted on March 26, 1990, or eleven days after the petition.-On April 2, 1990, herein petitioner Port Workers Union of the Philippines (PWUP) filed a petition for intervention.-another petition for certification election was filed by the Port Employees Association and Labor Union (PEALU), on April 6, 1990. The consent signatures were submitted on May 11, 1990, or thirty-five days after the filing of the petition.-On April 26, 1990, APCWU filed a motion to dismiss them on the ground that they did not comply with the requirement set forth in Section 6, Rule V, Book V of the Implementing Rules, quoted in part as follows: In a petition involving an organized establishment or enterprise where the majority status of the incumbent collective bargaining union is questioned through a verified petition by a legitimate labor organization, the Med-Arbiter shall immediately order the certification election by secret ballot if the petition is filed during the Last sixty (60) days of the collective bargainingagreement and supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit. Any petition filed before or after the sixty-day freedom period shall be dismissed outright. The twenty-five percent (25%) requirementshall be satisfied upon the filing of the petition, otherwise the petition shall be dismissed. (Emphasis supplied.)-the Med-Arbiter dismissed the consolidated petitions. PWUP appealed to the Secretary of Labor, arguing that Article 256 of The Labor Code did not require the written consent to be submitted simultaneously with the petition for certification election. DOLE Undersecretary Laguesma affirmed the order of the Med-Arbiter and dismissed PWUP’s appeal.-ICTSI and APCWU resumed negotiations for a new collective bargaining agreement, which was concluded on September 28, 1990. This was ratified by a majority of the workers in the bargaining unit.-PWUP claims grave abuse of discretion on the part of the public respondent in theapplication of Article 256 of the Labor Code. The article provides in part as follows: Art. 256. Representation issue in organized establishments. In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five (25%) percent of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. . . .

-The petitioner argues that under this article, the Med-Arbiter should automatically order election by secret ballot when the petition is supported by at least 25% of all employees in the bargaining unit. SAMADA and PEALU substantially complied with the law when they submitted the required consent signatures several days after filing the petition. The petitioner complains that the dismissal of the petitions for certification election, including its own petition for intervention, had the effect of indirectly certifying APCWU as the sole and exclusive bargaining representative of the ICTSI employees.-Private respondent ICTSI maintains that the dismissal was based on Article 256 of the Labor Code as implemented by Section 6, Rule V, Book V of the Implementing Rules, quoted above. Moreover, under Section 10, Rule V, Book V of the Implementing Rules, decisions of the Secretary in certification election cases shall be final and unappealable.-For its part, APCWU questions PWUP’s personality in these proceedings in view of the lack of consent signatures in its petition, and argues as well that the petitioner has no authority to represent SAMADA or PEALU, which had not appealed. The private respondent also invokes Tupas and maintains that the ratification of the new CBA by the majority of the workers was an affirmation of their membership in the union that negotiated that agreement.ISSUEWON there was indeed grave abuse of discretion amounting to lack or excess of jurisdiction on the part of public respondents when they dismissed the petitions for certification election because the consent signatures had not been submitted simultaneously with the petitionHELDYES-pursuant to the constitutional provision guaranteeing workers the right to self-organization and collective bargaining, “the constant and unwavering policy of the Court” has been “to require a certification election as the best means of ascertaining which labor organization should be the collective bargaining representative.”-The certification election is the most democratic and expeditious method by which the laborers can freely determine the union that shall act as their representative in their dealings with the establishment where they are working. The holding of a certification election is a statutory policy that should not be circumvented.-the administrative rule requiring the simultaneous submission of the 25% consent signatures upon the filing of petition for certification election should not be strictlyapplied to frustrate the determination of the legitimate representative of the workers. Significantly, the requirement in the rule is not found in Article 256, the law it seeks to implement. This is all the more reason why the regulation should at best be given only a directory effect.-It is not denied that the petition to intervene filed by PWUP did not carry the 25% consent signatures, but that the requirement is in fact not applicable to a petition in intervention.-the certification election is not litigation but a mere investigation of a non-adversary character where the rules of procedure are not strictly applied. Technical rules and objections should not hamper the correct ascertainment of the labor union that has the support of confidence of

the majority of the workers and is thus entitled to represent them in their dealings with management.-Deviation from the contract-bar rule is justified only where the need for industrial stability is clearly shown to be imperative. Subject to this singular exception, contracts where the identity of the authorized representative of the workers is in doubt must berejected in favor of a more certain indication of the will of the workers. The certification election is the best method of determining the will of the workers on the crucial question of who shall represent them in their negotiations with the management for a collective bargaining agreement that will best protect and promote their interests. It is essential that there be no collusion against this objective between an unscrupulous management and a union covertly supporting it while professing its loyalty to labor, or at least that the hopes of labor be not frustrated because of its representation by a union that does not enjoy its approval and support. It is therefore sound policy that any doubt regarding the real representation of the workers be resolved in favor of the holding of the certification election. This is preferable to the suppression of the voice of the workers through the prissy observance of technical rules that will exalt procedure over substantial justice.DISPOSITIONPetition GRANTED.

Case: Oriental Tin Can vs. Laguesma

FACTS: Oriental Tin Can and Metal Sheet Manufacturing Company, Inc. (the company) is engaged in the manufacture of tin can containers and metal sheets. On March 3, 1994, it entered into a collective bargaining agreement (CBA) with petitioner Oriental Tin Can Labor Union (OTCLU) as the existing CBA was due to expire on April 15, 1994. Four days later, 248 of the company’s rank-and-file employees authorized the Federation of Free Workers (FFW) to file a petition for certification election. On March 10, 1994, however, this petition was repudiated via a written waiver by 115 of the signatories who, along with other employees totalling 897, ratified the CBA on the same date.On March 18, 1994, armed with Charter Certificate No. IV-MEE-089, respondent Oriental Tin Can Workers Union — Federation of Free Workers (OTCWU-FFW) filed a petition for certification election with the National Capital Region office of the Department of Labor and Employment (DOLE), pursuant to Article 256 of the Labor Code. Purporting to represent the regular rank-and-file employees of the company, the petition was accompanied by the “authentic signatures” of 25% of the employees/workers in the bargaining unit.The above petition for certification elections was opposed by the OTCLU. For its part, the company filed a comment alleging inter alia that the new CBA was ratified by 897 out of the 1,020 rank-and-file employees within the bargaining unit. The OTCLU then filed a motion to dismiss and/or position paper reiterating its position that the petition did not comply with the 25% signature requirement and maintaining that the new CBA was a bar to a certification election.

The certification election was allowed.ISSUE: WON the company has a personality to challenge the conduct of a certification elections.HELD: NONEIt is a well-established rule that certification elections are exclusively the concern of employees; hence, the employer lacks the legal personality to challenge the same. Law and policy demand that employers take a strict, hands-off stance in certification elections. The bargaining representative of employees should be chosen free from any extraneous influence of management. A labor bargaining representative, to be effective, must owe its loyalty to the employees alone and to no other.The only instance when an employer may concern itself with employee representation activities is when it has to file the petition for certification election because there is no existing CBA in the unit and it was requested to bargain collectively, pursuant to Article 258 of the Labor code. After filing the petition, the role of the employer ceases and it becomes a mere bystander. The company’s interference in the certification election below by actively opposing the same is manifestly uncalled-for and unduly creates a suspicion that it intends to establish a company union.The designation or selection of the bargaining representative without, however, going through the process set out by law for the conduct of a certification election applies only when representation is not in issue. There is no problem if a union is unanimously chosen by a majority of the employees as their bargaining representative, but a question of representation arising from the presence of more than one union in a bargaining unit aspiring to be the employees’ representative, can only be resolved by holding a certification election under the supervision of the proper government authority.NOTE: It is uncontroverted that the petition for certification election in this case was filed on March 18, 1994, twenty-eight days before the expiration of the existing CBA on April 15, 1994, and well within the 60-day period provided for by the Code. The OTCLU, however, is concerned with the effect of the employees’ ratification of the new CBA on the timely filing of the petition for certification election. Would such ratification nullify the petition?The law dictates a negative reply. The filing of a petition for certification election during the 60-day freedom period gives rise to a representation case that must be resolved even though a new CBA has been entered into within that period. This is clearly provided for in the aforequoted Section 4, Rule V, Book V of the Omnibus Rules Implementing the Labor Code. The reason behind this rule is obvious. A petition for certification election is not necessary where the employees are one in their choice of a representative in the bargaining process. Moreover, said provision of the Omnibus Rules manifests the intent of the legislative authority to allow, if not encourage, the contending unions in a bargaining unit to hold a certification election during the freedom period. The agreement prematurely signed by the union and the company during the freedom period does not affect the petition for certification election filed by another union.

As regards the 25% support requirement, the same has been met. As previously held by the SC, once the required percentage requirement has been reached, the employees’ withdrawal from union membership (waiver in this case) taking place after the filing of the petition for certification election will not affect the petition. On the contrary, the presumption arises that the withdrawal was not free but was procured through duress, coercion or for a valuable consideration. Hence, the subsequent disaffiliation of the 6 employees from the union will not be counted against or deducted from the previous number who had signed up for certification

Topic: Certification of Election: Forced Intervention, Motion for Intervention

Case: PAFLU vs. Calleja

The basic facts of this case are undisputed:A petition for certification election among the rank-and-file workers of the Hundred Island Chemical Corporation was filed with the Bureau of Labor Relations (BLR) by respondent Malayang Samahan ng mga Manggagawa sa Hundred Island Chemical Corporation (Samahan, for short) and was docketed as BLR Case No. A-6-201-87. A motion to intervene, accompanied by the written consent of twenty percent (20%) of the rank-and-file employees of the said corporation was filed by petitioner Philippine Association of Free Labor Unions (September Convention), or PAFLU, on 27 April 1987, Likewise the Katipunan ng Manggagawang Pilipino (KAMAPI, for brevity) flied its motion to intervene on 1 June 1987 but unaccompanied by a similar written consent of the employer's workers. Due to such want of a written consent, PAFLU moved for the striking out of KAMAPI's motion for intervention. Acting on said motion, Med-Arbiter Renato D. Parungo issued an order dated 8 June 1987 denying KAMAPI's motion for intervention and allowing PAFLU's inclusion in the certification election. On 17 June 1987, KAMAPI appealed the said Med-Arbiter's order to the respondent Director of the BLR, who issued the afore-quoted order. Thus, on 17 August 1987, this petition was filed. And as prayed for in the said petition, We issued a temporary restraining order dated 24, August 1987. Respondent Samahan has contested the issuance of said restraining order and has prayed that it be lifted since the delay of the certification election only defeats the constitutional right of labor to organize.The main issue in this petition was aptly deposited by the Solicitor General in his consolidated comment; Whether or not KAMAPI should be allowed to participate in a certification election thru a motion for intervention without a prior showing that it has the required support expressed in the written consent of at least twenty (20%) percent of all employees in the collective bargaining unit. In taking the negative stance, petitioner cites Section 6, Rule V of the Rules Implementing Executive Order No. 111, which reads:SEC. 6. PROCEDURE. Upon receipt of a petition, the Regional Director shall assign the case to a Med-Arbiter for appropriate action. The Med-Arbiter shall have twenty (20) working days within which to grant or dismiss the petition. In a petition filed by a legitimate

organization involving an unorganized establishment, the Med-Arbiter shall grant the petition upon verification that the same is supported by the written consent of at least twenty (20%) of all the employees in the collective bargaining unit, the twenty (20%) support shall be satisfied upon the filing of the petition for certification election, otherwise, the petition shall be dismissed. In either case, he shall cite the ground.Pertinent to the above rule is Section 7 of E.O. 111 to which the former relates, and which provides:SEC. 7. Articles 257 and 258 of the Labor Code of the Philippines are hereby amended to read as follows:x x xArt. 258. Petitions in unorganized establishments. — In any establishment where there is no certified bargaining agent, the petition for certification election filed by a legitimate labor organization shall be supported by the written consent of at least twenty (20%) percent of all the employees in the bargaining unit. Upon receipt of such petition, the Med-Arbiter shall automatically order the conduct of a certification election.Considering the above provisions of law, We rule to dismiss the instant petition for certiorari. The respondent Director did not abuse her discretion in issuing the contested order. It is crystal clear from the said provisions that the requisite written consent of at least 20% of the workers in the bargaining unit applies to petitioners for certification election only, and not to motions for intervention. Nowhere in the aforesaid legal provisions does it appear that a motion for intervention in a certification election must be accompanied by a similar written consent. Not even in the Implementing Rules of the Labor Code (see Rule V, Rules Implementing the Labor Code). Obviously, the percentage requirement pertains only to the petition for certification election, and nothing else.This leads Us to the question of purpose. the reason behind the 20% requirement is to ensure that the petitioning union has a substantial interest in the representation proceedings ** and, as correctly pointed out by the Solicitor General, that a considerable number of workers desire their representation by the said petitioning union for collective bargaining purposes. Hence, the mere fact that 20% of the workers in the bargaining unit signify their support to the petition by their written consent, it becomes mandatory on the part of the Med-Arbiter to order the holding of a certification election in an unorganized establishment (Samahang Manggagawa ng Pacific Mills, Inc. vs. Noriel, 134 SCRA 152). The 20% requirement, thereof, is peculiar to petitions for certification election.In the light of the foregoing, KAMAPI must be allowed to participate in the certification election since the essence of such proceeding is to settle once and for all which union is preferred by the workers to represent them (PAFLU vs. BLR, 69 SCRA 132; PAFLU vs. BLR, 72 SCRA 396). As long as the motion for intervention has been properly and timely filed and the intervention would not cause any injustice to anyone, it should not be denied and this is so even if the eventual purpose of the motion for intervention is to participate in the

certification election. After all the original applicant had already met the 20% requirement.WHEREFORE, the instant petition is hereby DISMISSED and the Temporary Restraining Order dated 24 August 1987 LIFTED. With costs against petitioner.SO ORDERED.

Topic: Unorganized EstablishmentCase: Sugbuanon Rural Bank v. Laguesma

FACTS: Petitioner Sugbuanon Rural Bank, Inc., (SRBI, for brevity) is a duly-registered banking institution with principal office in Cebu City and a branch in Mandaue City. Private respondent SRBI Association of Professional, Supervisory, Office, and Technical Employees Union (APSOTEU) is a legitimate labor organization affiliated with the Trade Unions Congress of the Philippines (TUCP).1âwphi1.nêtOn October 8, 1993, the DOLE Regional Office in Cebu City granted Certificate of Registration No. R0700-9310-UR-0064 to APSOTEU-TUCP, hereafter referred to as the union.

On October 26, 1993, the union filed a petition for certification election of the supervisory employees of SRBI. It alleged, among others, that: (1) APSOTEU-TUCP was a labor organization duly-registered with the Labor Department; (2) SRBI employed 5 or more supervisory employees; (3) a majority of these employees supported the petition: (4) there was no existing collective bargaining agreement (CBA) between any union and SRBI; and (5) no certification election had been held in SRBI during the past 12 months prior to the petition.On October 28, 1993, the Med-Arbiter gave due course to the petition. The pre-certification election conference between SRBI and APSOTEU-TUCP was set for November 15, 1993.

On November 12, 1993, SRBI filed a motion to dismiss the union’s petition. It sought to prevent the holding of a certification election on two grounds. First, that the members of APSOTEU-TUCP were in fact managerial or confidential employees.

ISSUES:

(1) Whether or not the members of the respondent union are managerial employees and/or highly-placed confidential employees, hence prohibited by law from joining labor organizations and engaging in union activities.

(2) Whether or not the Med-Arbiter may validly order the holding of a certification election upon the filing of a petition for certification election by a registered union, despite the petitioner’s appeal pending before the DOLE Secretary against the issuance of the union’s registration.

RULING:

(1) Petitioner’s explanation does not state who among the employees has access to information specifically relating to its labor to relations policies. Even Cashier Patricia Maluya, who serves as the secretary of the bank’s Board of Directors may not be so classified.Confidential employees are those who

(1) assist or act in a confidential capacity, in regard (2) to persons who formulate, determine, and effectuate management policies [specifically in the field of labor relations].9 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 officer must handle the prescribed responsibilities relating to labor relations.

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. It must be stressed, however, that when the employee does not have access to confidential labor relations information, there is no legal prohibition against confidential employees from forming, assisting, or joining a union.

(2) One of the rights of a legitimate labor organization under Article 242(b) of the Labor Code is the right to be certified as the exclusive representative of all employees in an appropriate bargaining unit for purposes of collective bargaining. Having complied with the requirements of Art. 234, it is our view that respondent union is a legitimate labor union. Article 257 of the Labor Code mandates that a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization.16 Nothing is said therein that prohibits such automatic conduct of the certification election if the management appeals on the issue of the validity of the union’s registration. On this score, petitioner’s appeal was correctly dismissed.

Topic: Cert - Employer as Initiating party / Bystander RuleCase: Hercules Industries, Inc. v. Secretary of Labor

SYLLABUS

1. LABOR AND SOCIAL LEGISLATION; LABOR RELATIONS; CERTIFICATION ELECTION; AS A GENERAL RULE, EMPLOYER IS NOT A PARTY THERETO; EXCEPTION. — In a long line of decisions, this Court has undeviatingly ruled that the employer is not a party to a certification election which is the sole or exclusive concern of the workers (Rizal Workers Union v. Ferrer-Calleja, 186 SCRA 431). In the choice of their collective bargaining representative, the employer is definitely an intruder. His participation, to put it mildly, deserves no encouragement (Consolidated Farms, Inc. v. Noriel, 84 SCRA 469; Filipino Metals Corp. v. Ople, 107 SCRA 211). The only instance when the employer

may be involved in that process is when it is obliged to file a petition for certification election on its workers’ request to bargain collectively pursuant to Article 258 of the Labor Code. After the order for a certification election issues, the employer’s involvement ceases, and it becomes a neutral bystander.

D E C I S I O N

GRIÑO-AQUINO, J.:

This petition for certiorari * seeks to set aside the resolution ** dated September 17, 1990 of the Undersecretary of Labor in the case entitled, "National Federation of Labor v. Hercules Industries, Inc." denying the herein petitioner’s appeal from respondent Med-Arbiter’s Order dated May 25, 1990 declaring the National Federation of Labor (NFL) as the sole and exclusive bargaining agent of the rank and file workers/employees of Hercules Industries, Inc.

Hercules Industries, Inc., herein petitioner, is a corporation duly registered under Philippine laws which employs more or less one hundred eighty (180) workers.

On July 30, 1987, private respondent National Federation of Labor (NFL), a legitimate labor federation, filed a petition for certification election alleging that the existing collective bargaining agreement would expire in August, 1987 and that it enjoys the support of more than twenty per cent (20%) of the rank and file employees in the bargaining unit.

On August 21, 1987, by agreement of the parties, the Med-Arbiter issued an order for the conduct of a certification election with the following choices: chanrob1es virtual 1aw library

(1) National Federation of Labor (NFL);

(2) Hercules Employees Labor Union (HELU); and

(3) No Union.

On September 21, 1987, a pre-election conference was conducted. The parties, however, could not agree on the list of qualified voters who would participate in the election. Specifically, Hercules Industries, Inc. charged that the list included ninety eight (98) scabs; sixteen (16) capatazes; eight (8) security guards; and nine (9) managerial employees. chanrobles virtual lawlibrary

On October 26, 1987, the Med-Arbiter issued an order, the dispositive portion of which reads: jgc:chanrobles.com.ph

"WHEREFORE, considering the foregoing, judgment should be, as it is hereby promulgated, ordering the immediate conduct of the Certification Election within fifteen (15) days from date hereof, at the premises of the Hercules Industries, Inc., Laih, Siay, Zamboanga del Sur, with all the regular rank and file workers appearing in the payroll of July, 1987, and the strikers, who have not executed ‘Quitclaim’ and voluntarily accepted separation pay, are eligible participants in the Certification Election, except those that are hereinbelow expressly and categorically excluded by virtue of their being classified as managerial employees, legally separated and barred under the contemplation of law.

"A. MANAGERIAL EMPLOYEES (Excluded).

"x       x       x

"B. SECURITY FORCE DEPARTMENT (Excluded).

"x       x       x

"C. STRIKES EMPLOYEES WHO HAVE EXECUTED DEED OF QUITCLAIM AND VOLUNTARILY ACCEPTED SEPARATION PAY

(Excluded)

"x       x       x

"The representation officer-designate is hereby ordered to post immediately within five (5) days prior to the date of election the notices of Certification Election together with the master list of eligible voters in conspicuous places at the premises of the Respondent." (pp. 27-28, Rollo.)

On November 4, 1987, NFL appealed the order to the Bureau of Labor Relations (BLR Case No. A-1-10-88 LRD Case No. 014-87) on the following grounds:chanrobles virtual lawlibrary

"1. The Med-Arbiter erred in unqualifiedly accepting all the names appearing in the July 1987 payroll as eligible voters and in allowing the 98 contract replacement worker to vote; and

"2. The Med-Arbiter erred in disregarding the fact that an earlier order for certification election had already been handed down and that the workers were on strike." (p. 29, Rollo.)

Pending the resolution of the NFL’s appeal, a certification election was conducted on November 7, 1990.

On January 6, 1988, BLR Director Pura Ferrer-Calleja of the DOLE rendered a decision, the dispositive portion of which reads: jgc:chanrobles.com.ph

"WHEREFORE, premises considered, the appeal is hereby granted and the certification election held on 7 November 1987 declared null and void.

"Let a new certification election among the rank and file workers of Hercules Industries, Inc. be held. The payroll of July 1987 excluding the [ninety eight] 98 scab replacement, shall be the basis of the voters’ list." (p. 32, Rollo.)

On April 4, 1990, a pre-election conference attended by the management of Hercules Industries, Inc. and NFL’s representatives was held at the Department of Labor and Employment Regional Office in Zamboanga City. The NFL asked that a certification election be immediately scheduled on May 4, 1990 at 9:00 a.m. to be held in the Barangay Hall, Bato, Siay, Zamboanga del Sur.chanrobles virtual lawlibrary

Accordingly, a certification election was held on May 4, 1990 with the following results: jgc:chanrobles.com.ph

"1. NATIONAL FEDERATION OF LABOR 89 Votes

"2. HERCULES LUMBER & EMPLOYEES

LABOR UNION 0 (Zero)

"3. MANAGEMENT (NO UNION) 0 (Zero)

"4. SPOILED/INVALID VOTES 2 (Votes)

TOTAL VOTES CAST: 91 Votes"

(p. 188, Rollo.)

On May 25, 1990, Med-Arbiter Melchor S. Lim issued a resolution declaring and certifying the National Federation of Labor as the sole and exclusive bargaining agent of the rank and file employees of the petitioner.

On July 5, 1990, the petitioner filed a motion for reconsideration/appeal with

the DOLE. It was denied on September 17, 1990 by Undersecretary Bienvenido E. Laquesma on the grounds that Sections 3 and 4, Rule 6, Book V of the Implementing Rules of the Labor Code on protests had not been followed; that the records disclose that no protest was made before the election, nor formalized within five (5) days after the election, as provided for by the rules; and the DOLE has not found any legal obstacle to the proclamation of the NFL as the collective bargaining agent of petitioner’s workers.

On September 29, 1990, petitioner filed a motion for reconsideration but the same was denied on October 26, 1990 by Undersecretary Laquesma.

Hence, the present recourse.

On January 21, 1991, Zamboanga Rubber Workers Union, a duly organized labor union affiliated with the Philippine Integrated Industries Labor Union, filed a motion for intervention in this Court alleging that it had requested the petitioner in writing to recognize it as the sole and exclusive bargaining agent of its workers. The motion was noted by this Court without action.

The pivotal issue in this case is whether or not the petitioner, Hercules Industries, Inc., as employer, may question the validity of the certification election among its rank-and-file employees. The answer is no. chanrobles lawlibrary : rednad

In a long line of decisions, this Court has undeviatingly ruled that the employer is not a party to a certification election which is the sole or exclusive concern of the workers (Rizal Workers Union v. Ferrer-Calleja, 186 SCRA 431). In the choice of their collective bargaining representative, the employer is definitely an intruder. His participation, to put it mildly, deserves no encouragement (Consolidated Farms, Inc. v. Noriel, 84 SCRA 469; Filipino Metals Corp. v. Ople, 107 SCRA 211).

The only instance when the employer may be involved in that process is when it is obliged to file a petition for certification election on its workers’ request to bargain collectively pursuant to Article 258 of the Labor Code. After the order for a certification election issues, the employer’s involvement ceases, and it becomes a neutral bystander. (Rizal Workers’ Union v. Calleja, supra.).

In this case, the Solicitor General correctly observed that while the employees themselves never requested the petitioner to bargain collectively, still, they did not object to the results of the certification election. Hence, petitioner’s appeal to the Bureau of Labor Relations from the Med-Arbiter’s Order certifying the NFL as the exclusive bargaining agent of its rank and file employees, and its filing of this petition for certiorari with us, must be rejected. The employer’s intervention in the certification election of its workers is frowned upon by law.

In any event, petitioner’s challenge against the validity of the certification election of May 4, 1990 is devoid of merit. Its allegations that no notice of the certification election had been issued, hence, no copies of said notice were given to it, nor posted in conspicuous places within the company’s premises; that the payroll of July 1987 was not used as the basis of the voters’ list; and that only fifteen (15) out of the ninety eight (98) voters signed their names showing that they actually voted, were belied by the minutes of the pre-election conference (Annex "A" of Comment of private respondent) which showed that petitioner was duly notified of the conference and attended the same, and that during said conference the Med-Arbiter set the certification election on May 4, 1990. chanrobles.com : virtual law library

The minutes of the certification election (Annex "C" of private respondent’s Comment) also show that "the list of the names of the voters were (sic) copied from the payroll of 1987 per order of the Director, Bureau of Labor Relations, Manila, . . ." (p. 188, Rollo).

Finally, the same minutes certified that: "The certification election just concluded was conducted in the most just, honest and freely (sic) manner

without untoward happening. Further, we certify that the result above is true and correct" (p. 188, Rollo) thereby refuting petitioner’s allegation that only fifteen (15) out of ninety eight (98) workers signed the master list to show that they actually voted again.

Besides, neither the records of the case nor the minutes of the certification election show that petitioner protested the conduct of the certification election as provided in Section 3 of Rule VI (ELECTIONS) of Book V of the Omnibus Rules Implementing the Labor Code which states: jgc:chanrobles.com.ph

"SECTION 3. Representation officer may rule on any on-the-spot questions. — The Representation officer may rule on any on-the-spot question arising from the conduct of the election. The interested party may however, file a protest with the representation officer before the close of the proceedings.

"Protests not so raised are deemed waived. Such protests shall be contained in the minutes of the proceedings." (Emphasis ours.) chanrobles virtual lawlibrary

On the basis of the election minutes, which are the only relevant and competent evidence on the conduct of the election, the Med-Arbiter did not err in declaring the NFL as the duly elected exclusive bargaining agent of the petitioner’s rank and file workers. That finding should be accorded not only respect but also finality by this Court for it is supported by substantial evidence (Chua v. NLRC, 182 SCRA 354).

WHEREFORE, finding no grave abuse of discretion in the assailed decision of the NLRC, the petition for certiorari is DISMISSED, with costs against the petitioner.

SO ORDERED.

Medialdea and Bellosillo, JJ., concur.

Cruz, J., is on leave.