BARGAINING UNIT

It is a group of Ees of a given Er, comprised of all or less than all of the
entire body of the Ees which the collective interest of all the Ees consistent with
equity to the Er, indicate to be best suited to serve the reciprocal rights and duties
of the parties under the collective bargaining provisions of the law.

Collective Bargaining Unit (CBU)

Refers to a group of employees sharing mutual interests within a given

employer unit (D.O. No. 40- 03).

NOTE: Within one unit there may be one or more unions. But only one
union should represent the whole CBU in bargaining with the employer. There
may be two or more certified bargaining agents serving different interests.
[Herrera- Veloso amendment (UP v. Ferrer-Calleja, July 14,1992)].

Tests to determine the appropriate bargaining unit

1. Community or mutuality of interest

2. Will of the employees or “Globe Doctrine”

3. Collective bargaining history

4. Similarity of employment status

Substantial or Mutuality of Interest Doctrine

The Ees sought to be represented by the CB agent must have substantial

mutual interest in terms of employment and working condition as evinced by the
type of work they perform (San Miguel Corp. Employees Union-PTGWO v.
Confesor, G.R. No. 111262, September 19, 1996).

Factors considered in determining the Substantial or Mutuality Interest

Doctrine

1. Similarity in the scale and manner of determining earnings;

 2. Similarity in employment benefits, hours of work, and other terms and
conditions of employment;

3. Similarity in the kinds of work performed;

4. Similarity in the qualifications, skills and training of Ees;

5. Frequency of contract or interchange among the Ees;

6. Geographical proximity;

7. Continuity and integration of production processes;

8. Common supervision and determination of labor-relations policy;

9. History of CB;

10. Desires of the affected Ees; or 11. Extent of union organization (Cox,
Bok & Gorman, Labor Law (1977), p. 300.)

NOTE: The facts that the three plants are located in three different places,
namely, in Cabuyao, Laguna, in Otis, Pandacan, Metro Manila, and in San
Fernando, Pampanga is immaterial. Geographical location can be completely
disregarded if the communal or mutual interests of the employees are not
sacrificed (Azucena 2016, p.461).

Q: SamahangTunay, a union of rank-and-file employees lost in a

certification election at Solam Company and has become a minority union. The
majority union now has a signed CBA with the company and the agreement
contains Maintenance of Membership Clause. What can SamahangTunay still do
within the company as a union considering that it still has members who
continue to profess continued loyalty to it? (2013 Bar)

A: As a legitimate labor organization, it can continue to represent its

members on non-CBArelated matters (LC, Art. 248 , as renumbered).

Q: A registered labor union in UP, ONAPUP, filed a petition for

certification election among the non-academic employees. The university did
not oppose, however, another labor union, the All UP Workers Union assents
that it represents both academic and non-academic personnel and seeks to
unite all workers in one union. Do employees performing academic functions
need to comprise a bargaining unit distinct from that of the non-academic
employees?

A: YES. The mutuality of interest test should be taken into consideration.

There are two classes of rank and file Ees in the university, those who perform
academic functions such as the professors and instructors, and those whose
function are nonacademic who are the janitors, messengers, clerks etc. Thus, not
much reflection is needed to perceive that the mutuality of interest which justifies
the formation of a single bargaining unit is lacking between the two classes of Ees
(U.P. v. FerrerCalleja, G.R. No.96189, July 14, 1992).

Will of the employees or “Globe Doctrine” The desires of the employees are
relevant to the determination of the appropriate bargaining unit.

While the desires of employees with respect to their inclusion in bargaining

unit is not controlling, it is a factor which would be taken into consideration in
reaching a decision [Globe Machine & Stamping Co., 3 NLRB 294 (1937)]

. Bargaining history not a decisive factor in the determination of

appropriateness of bargaining unit

While the existence of a bargaining history is a factor that may be reckoned

with in determining the appropriate bargaining unit, the same is not decisive or
conclusive. Other factors must be considered. The test of grouping is community
or mutuality of interests. This is so because the basic test of an asserted
bargaining unit’s acceptability is whether or not it is fundamentally the
combination which will best assure to all Ees the exercise of their CB rights
(Democratic Labor Association v. Cebu Stevedoring Company, Inc., G.R. No. L-
10321, February 28, 1958).
 “One-company, One-union” Policy

It is the policy of the BLR to encourage the formation of an employer unit.

In other words, one employer enterprise should constitute only one bargaining
unit because the more solid the employees are, the stronger their bargaining
capacity.

GR: All the rank-and-file Ees with substantially the same interests and who
invoke the right to selforganization are part of a single unit so that they can deal
with their Er with just one and potent voice. The Ees’ bargaining power is
strengthened thereby (General Rubber and Footwear Corporation v. Bureau of
Labor Relations, et al., G.R. No. 74262, October 29, 1987).

XPNs:

1. Supervisory Ees who are allowed to form their own unions apart from
the rank-and-file Ees and

2. Craft Unit – bargaining unit composed of employees of the company

with the same occupation, such as pilots as distinguished from ground personne

3. Plant Unit – bargaining unit composed of employees in a particular plant

of the company, such as the company’s Cebu plant as distinguished from its Ilocos
Plant. The main consideration in a plant unit is geographical while it is
occupational in a craft unit (Alcantara, 2008).

NOTE: The policy should yield to the right of Ees to form union for purposes
not contrary to law, selforganization and to enter into CB negotiations. Two
corporations cannot be treated as a single bargaining unit, even if their businesses
are related (Indophil Textile Mill Workers Union v. VA Calica, G.R. No. 96490, Feb.
3, 1992).

NOTE: The proliferation of unions in an employer unit is merely

discouraged as a matter of policy. However, if there are compelling reasons which
would deny a certain class of employees the right of self-organization for
purposes of collective bargaining, then it would be allowed. In case of two
companies with related businesses, not necessarily treated as a single BU It is
erroneous to treat two companies as a single bargaining unit when these
companies are indubitably distinct entities with separate juridical personalities.

Subsidiaries and Spin-off Corporations

Subsidiaries or corporations formed out of former divisions of a mother

company following a reorganization may constitute a separate bargaining unit.

NOTE: In determining an appropriate bargaining unit, the test of grouping

is mutuality or commonality of interests. Considering the spin-offs, the companies
would have their respective and distinctive concerns in terms of the nature of
work, wages, hours of work and other conditions of employment. Interests of
employees in the different companies per force differ (San Miguel Corp. Union v.
San Miguel Corp., Magnolia Corp., and San Miguel Foods, Inc., G.R. No. 111262,
Sept. 19, 1996).

The Four-Factor Analysis

The US National Labor Relations Board continues to apply a four-factor

analysis in determining whether two or more employers constitute a single
employer:

1. Interrelations of operation;

2. Centralized control of labor relations;

3. Common management; and

4. Common ownership (Azucena, 2016, p. 471) Distinguishing the CBU from

the union is important because:

1. In a C.E., the votes are the whole bargaining unit, whether union or non-
union members;

2. In CBA ratification, the voters are the whole bargaining unit, not just the
union members;
 3. In strike voting, the voters are the members of the union, not whole
bargaining unit (Azucena, 2016 p. 472).

Q: Union filed a petition for certification election among the rank and file
employees of three security agencies including the Veterans Security. The latter
opposed alleging that the three security agencies have separate and distinct
corporate personalities. May a single petition for certification election be filed
by a labor union in the three corporations instead of filing three separate
petitions?

A: YES. The following are indications that the three agencies do not exist
and operate separately and distinctly from each other with different corporate
direction and goals:

1) Veterans Security failed to rebut the fact that they are managed through
the Utilities Management Corporation with all their employees drawing their
salaries and wages from the said entity;

2) that the agencies have common and interlocking incorporators and

officers;

3) that they have a single mutual benefit system and followed a single
system of compulsory retirement;

4) they could easily transfer security guards of one agency to another and
back again by simply filling-up a common pro-forma slip;

5) they always hold joint yearly ceremonies such as the PGA Annual Awards
Ceremony; and

6) they continue to be represented by one counsel. Hence, the veil of

corporate fiction of the three agencies should be lifted for the purpose of allowing
the Ees of the three agencies to form single union. As a single bargaining unit, the
Ees need not file three separate PCE (Philippine Scout Veterans Security and
Investigation Agency v. SLE, G.R. No. 92357, July 21, 1993).
 Q: Company XYZ has two recognized labor unions, one for its rank-and-file
employees and the other for its supervisory employees. Of late, the company
instituted a restructuring program by virtue of which A, a rank-and-file
employee and officer of rank-and-file employees’ labor union, was promoted to
a supervisory position along with four other colleagues, also active union
members and/or officers. Labor Union KMJ, a rival labor union seeking
recognition as the rank-and-file bargaining agent, filed a petition for the
cancellation of the registration of rank-and-file Ees labor union on the ground
that A and her colleagues have remained to be members of rank-and-file Ees
labor union. Is the petition meritorious? Explain. (2010 Bar)

A: NO. The inclusion as union members of Ees outside the bargaining unit
shall not be a ground for the cancellation of the registration of the union. Said Ees
are automatically deemed removed from the list of membership of said union.

There are only three grounds for the cancellation of union registration:

a. Misrepresentation, false statement or fraud in connection with the

adoption or ratification of the constitution and by-laws or amendments thereto,
the minutes of ratification and the list of members who took part in the
ratification;

b. Misrepresentation, false statements or fraud in connection with the

election of officers, minutes of the election of officers, and the list of voters;

c. Voluntary dissolution by the members (LC, Art. 239 as amended by RA

9481, June 14, 2007)

BARGAINING REPRESENTATIVE

Organized establishment is an enterprise where there exists a recognized

or certified sole and exclusive bargaining agent.

Unorganized establishment, on the otherhand, is an enterprise where no

union has yet been duly recognized or certified as bargaining representative.
 Bargaining representative of the Ees for purposes of collective bargaining

The labor organization designated or selected by the majority of the Ees in

an appropriate collective bargaining unit shall be the exclusive representative of
the Ees in such unit for the purpose of CB. However, an individual Ee or group of
Ees shall have the right at any time to present grievances to their Er [LC, Art. 267
(formerly Art. 255) as amended by Sec 22 of R.A. No. 6715, Sec. 22 (1989)].

Three (3) methods of determining the exclusive bargaining

representative:

1. SEBA Certification

2. Certification Election

3. Consent Election SEBA CERTIFICATION

This is a new mode of determining SEBA. D.O. No. 40-I-15, s. 2015 issued
on September 07, 2015, has expressly repealed the entire set of Rules applicable
to Voluntary Recognition in the Implementing Rules on Book V of the Labor Code
(Chan, 2017).

Rationale for the Repeal

By allowing the employer to extend “voluntary recognition” to a union, it is

no longer the employees but the employer who determines and designates the
SEBA when is supposed to be just a mere “by-stander” in such determination and
designation process (Chan, 2017).

SEBA Certification Process where a union requests the DOLE regional

director to recognize and certify the union as the SEBA (sole and exclusive
bargaining agent) of the BU it purports to represent for purposes of collective
bargaining with the employer.

Conditions:

1. The bargaining unit is not unionized;

 2. The requesting union is the only union in that bargaining unit;

3. The CBU majority are members of the union.

Documentary Requirements

The Request should indicate:

1. The name and address of the requesting legitimate labor organization;

2. The name and address of the company where it operates;

3. The bargaining unit sought to be represented;

4. The approximate number of the employees in the bargaining unit; and

5. The statement of the existence/non-existence of other labor

organization/CBA.

Where to file the Request

Any legitimate labor organization may file a Request in the DOLE Regional
Office which issued its certificate for registration or certificate of creation of
chartered local, as the case may be.

Action on the Request

Within one (1) day from the submission of the Request, the DOLE Regional
Director should:

1. Determine whether the request for is compliant with the documentary

requirements and whether the bargaining unit sought to be represented is
organized or not; and

2. Request a copy of the payroll for purposes of SEBA certification.

If the DOLE Regional Director finds the Request deficient, he should advise
the requesting union or local to comply within 10 days from notice.
Noncompliance shall be deemed withdrawal of the request (Sec. 3, D.O. 40-1-15,
s. 2015).
 Scenarios contemplated by the Rules on Request for Sole and Exclusive
Bargaining Agent Certification

1. Request certification in unorganized establishment with only one

legitimate union The DOLE Regional Director shall call a conference within five (5)
working days for the submission of the following: \

a. The names of employees in the covered bargaining unit who signify their
support for the SEBA certification, provided that said employees comprise at least
majority of the number of employees in the covered bargaining unit; and

b. Certification under oath by the President that all document submitted

are true and correct based on his/her personal knowledge.

If the requesting union or local fails to complete the requirements for the
SEBA certification during the conference, the Request should be referred to the
Election Officer for the conduct of certification election.

If the DOLE Regional Director finds that the requirements complete, he

shall issue, during the conference, a Certification as SEBA. Effect of the Issuance of
the Certification as SEBA

a. The certified union shall enjoy all the rights and privileges of an exclusive
bargaining agent of all the employees in the covered bargaining unit.

b. Certification Bar Rule. The issuance of the SEBA Certification as SEBA bars
the filing of a petition election by any labor organization for a period of one (1)
year from the date of issuance.

2. Request for certification in unorganized establish with more than one

legimitatelabor organization

If the DOLE Regional Director finds that the establishment unorganized

with more than one legitimate labor organization, he should refer the same to the
Election Officer for the conduct of certification election (Sec. 5, D.O. No. 40-I-15,
s. 2015).

3. Request for certification in organized establishment

 If the DOLE Regional Director finds that the establishment organized, he
should refer the same to the Mediator-Arbiter for the determination of the
propriety of conducting a certification election.

Q: What would happen if the request is denied? A: It may be referred to

an election officer for the conduct of a certification election. Q: What if it was
granted?

A: Then the certified union shall enjoy the rights and privileges of an EBA for
the BU. CERTIFICATION ELECTION It is the process of determining through secret
ballot the sole and exclusive representative of the Ees in an appropriate
bargaining unit, for purposes of CB or negotiation[IRR, Book V, Rule I, Sec. 1 (h)].

NOTE: The process is called CE because it serves as the official, reliable and
democratic basis for the BLR to determine and certify the union that shall be the
exclusive bargaining representative of the Ees for the purpose of bargaining with
the Er.

Nature of certification election

A CE is not a litigation but merely an investigation of a non-adversarial fact-

finding character in which BLR plays a part of a disinterested investigator seeking
merely to ascertain the desire of the Ees as to the matter of their representation
(Airline Pilots Association of the Philippines v. CIR, G.R. No. L33705, April 15,
1977).

Purpose of a certification election

It is a means of determining the worker’s choice of:

1. Whether they want a union to represent them for CB or if they want no

union to represent them at all.

2. And if they choose to have a union to represent them, they will choose
which among the contending unions will be the sole and exclusive bargaining
representative of the Ees in the appropriate bargaining unit.
 Filing a petition for certification election (PCE)

The following may file a PCE:

1. Any LLO

2. A national union or federation which has already issued a charter

certificate to its local chapter participating in the CE

3. A local chapter which has been issued a charter certificate

4. An Er only when requested to bargain collectively in a bargaining unit

where no registered CBA exists (IRR as amended by D.O. 40-F-03, Book V, Rule
VIII, Sec. 1).

NOTE: A national union or federation filing a petition in behalf of its

local/chapter shall not be required to disclose the names of the local/chapter’s
officers and members, but shall attach to the petition the charter certificate it
issued to its local/chapter (IRR as amended by D.O. 40-F-03, Book V, Rule VIII, Sec.
1).

In registration of federation or national union, the 20% membership

requirement may not be complied with

The registration requirement of submitting the names of all its members

comprising at least 20% of all the Ees in the bargaining unit where it seeks to
operate is applicable only to registration of independent union. LC merely
requires for proof of affiliation of at least 10 local chapters and the names and
addresses of the companies where they operate.

No 20% membership requirement is required for registration of a

federation or national union.

NOTE: Under the LC and the rules, the power granted to labor
organizations to directly create a chapter or local through chartering is given to a
federation or national union only, not to a trade union center(SMCEU v. San
Miguel Packaging Products Employees Union, G.R. No. 171153, September 12,
2007).
 Employer may file a petition for certification election

Er may file a petition for certification election when requested to bargain

collectively. But thereafter it should not be allowed to have an active role in the
CE; it shall merely act as a bystander.

NOTE: If the petition for certification election was filed by the federation
which is merely an agent, the petition is deemed to be filed by the chapter, the
principal which must be a legitimate labor organization.

The chapter cannot merely rely on the legitimate status of the mother
union.

Equity of the Incumbent

The incumbent bargaining agent will not file a PCE because it will not
contest its own status as the bargaining representative It does not lose its
representative status; it remains the sole bargaining representative until it is
replaced by another. Until so replaced, it has the right to retain the recognition by
the employer.

Time to File PCE

It would depend if the Bargaining Unit has a CBA or none.

If there is none: Petition may be filed anytime except within the 12 months
of a previous election, if any.

If there is a CBA:

Petition may only be filed within the “freedom period” of the

representational aspect of the CBA.

Q: In what instance may a petition for certification election be filed

outside the freedom period of a current collective bargaining agreement? (1997
Bar Question)
 A: As a general rule in an establishment where there is a CBA in force and
effect, a PCE may be filed only during the freedom period of such CBA. But to have
that effect, the CBA should have been filed and registered with the DOLE(LC, Art.
231, 253-A and 256). Thus, a CBA that has not been filed and registered with the
DOLE cannot be a bar to a CE and such election can be held outside the freedom
period of such CBA.

Alternative Answer: A PCE may be filed outside the freedom period of a

current CBA if such CBA is a new CBA that has been prematurely entered into,
meaning it was entered into before the expiry date of the old CBA. The filing of the
PCE shall be within the freedom period of the old CBA which is outside the
freedom period of the new CBA that had been prematurely entered into.

Where to file the PCE

A petition for certification election shall be filed with the Regional Office
which issued the petitioning union’s certificate of registration or certificate of
creation of chartered local The petition shall be heard and resolved by the Med-
Arbiter.

NOTE: The filing or pendency of any inter/intraunion dispute and other

related labor relations dispute is not a prejudicial question to any petition for
certification election and shall not be a ground for the dismissal of a petition for
certification election or suspension of proceedings of certification of election (Sec.
2, Rule XI of D.O. 40- 03).

Med-Arbiter’s Action on the Petition:

Hold a Preliminary Conference:

1. To determine whether the PCE should be processed or dismissed

2. To determine the BU that will participate in the election and the identity
of the contending unions

3. To determine the possibility of holding a “consent election”

 a. If the unions agree, the PCE will no longer be heard and the unions will
instead prepare for the consent election.

b. If the unions fail to agree, hearings would be conducted

Conduct of Hearings:

After the last hearing, Med-Arbiter shall issue a formal order denying or
granting the petition.

IN AN UNORGANIZED ESTABLISHMENT

Unorganized Establishment

An unorganized establishment is a bargaining unit with no recognized or

certified bargaining agent. It does not necessarily refer to an entire company.

NOTE: It may happen that the rank-and-file unit has a bargaining agent
while the supervisory unit still does not have such agent; thus, the former is
already an “organized establishment” while the latter remains, in the same
company, an unorganized establishment.

Requirement for certification election in unorganized establishments

The certification election shall be automatically conducted upon the filing

of a PCE by a LLO.

IN AN ORGANIZED ESTABLISHMENT

Requisites for certification election in an Organized Establishment

The Mediator-Arbiter is required to automatically order the conduct of a CE

by secret ballot in an organized establishment as soon as the following requisites
are met:

1. A petition questioning the majority status of the incumbent bargaining

agent is filed before the DOLE within the 60-day freedom period;

2. Such petition is verified;

 3. The petition is supported by the written consent of at least 25% of all the
Ees in the bargaining unit (LC, Art. 256; TUPAS-WFTU v. Laguesma, G.R. No.
102350, June 30, 1994).

Filing of 25% consent signature in the petition for certification election

Ideally, the signature should be filed together with the petition. However, it
may be filed after the petition within a reasonable period of time.

Effect if the petition for certification election was not accompanied by

the requisite 25% consent signatures

Under the Implementing Rules, absence or failure to submit the written

consent of at least 25% of all the Ees in the bargaining unit to support the petition
is a ground for denying the said petition. The Supreme Court said that the
Mediator-Arbiter may still have the discretion to grant or deny the petition. Even
if there is no 25% consent signature submitted together with the petition, it is
within the discretion of the Med-Arbiter whether to grant or deny the petition
(Port Workers Union v. BienvenidoLaguesma, G.R. Nos. 94929-30, March 18,
1992).

If the petition, however, is accompanied by the 25% consent signatures,

then the holding of the CE becomes mandatory (California Manufacturing Corp. v.
Laguesma, G.R. No. 97020, June 8, 1992).

Consent signatures of at least 25% of the employees in the bargaining

unit may not be submitted simultaneously with the filing of the petition for
certification election

The administrative rule requiring the simultaneous submission of the 25%

consent signatures upon the filing of PCE should not be strictly applied to
frustrate the determination of the legitimate representative of the workers.
Accordingly, the Court held that the mere filing of a PCE within the freedom
period is sufficient basis for the issuance of an order for the holding of a CE,
subject to the submission of the consent signatures within a reasonable period
from such filing (Port Workers Union of the Phils. v. Laguesma, G.R. Nos. 94929-
30, March 18, 1992).

Effect of Ee’s withdrawal of his signature in the petition for certification

election

If the withdrawal was made before the filing of the petition, then the
withdrawal is presumed to be voluntary unless there is convincing proof to the
contrary. If the withdrawal was made after the filing of the petition, the
withdrawals are deemed involuntary. Thus, withdrawals made after the filing of
the petition will not affect the PCE.

Rules prohibiting the filing of petition for certification election (Bar rules)

A. General rule

The general rule is that in the absence of a CBA duly registered in

accordance with Article 231 of the Labor Code, a petition for certification election
may be filed at any time.

B. Bar rules

No certification election may be held nder the following rules:

1. Certification year bar rule;

2. Negotiations bar rule;

3. Bargaining deadlock bar rule; or

4. Contract bar rule Certification year bar rule Under this rule, a petition for
certification election may not be filed within one (1) year from the date a valid
certification, consent, run-off or re-run election has been conducted within the
bargaining unit.

NOTE: In case of failure of elections, a re-run election will be held within six
(6) months. Also, when the election held is invalid
 Exception to the Certification year bar rule

When there is failure of election, the number of votes cast in a certification

or consent election is less than the majority of the number of eligible votes and
there are no material challenged votes. It shall not bar the filing of a motion for
the immediate holding of another certification or consent election within six
months from date of declaration of failure of election.

NOTE: If an election had been held but not one of the unions won, a PCE
may be filed again but only after 12-months.

The same ban applied if “No Union” won in the previous election. If a
union has won, such union and the employer must within 12 months start
negotiation a collective agreement.

Negotiation bar rule

Under this rule, no petition for certification election should be entertained

while the sole and exclusive bargaining agent and the employer have commenced
and sustained negotiations in good faith within the period of one (1) year from
the date of a valid certification, consent, run-off, re-run or from the date of
voluntary recognition.

Once the CBA negotiation have commenced and while the parties are in the
process of negoiating the terms and conditions of the CA, no challening union is
allowed to file a petition for certification election that would disturb the process
and unduly forestall the early conclusion of the agreement.

Bargaining deadlock bar rule

Under this rule, a petition for certification election may not be entertained
when a bargaining deadlock to which an incumbent or certified bargaining agent
is a party has been submitted to conciliation or has become the subject of a valid
notice of strike or lockout.

NOTE: The employer’s continuing act of evading negotiation with the

certified bargaining union is tantamount to a bargaining deadlock Artificial
Deadlock A deadlock pre-arranged or preserved by collusion of the employer and
the majority union.

Contract bar rule

Under this rule, a petition for certification election may not be filed when a
CBA between the employer and a duly recognized or certified bargaining agent
has been registered with the Bureau of Labor Relations (BLR) in accordance with
the Labor Code.

Where the CBA duly registered, a petition for certification election may be
filed within the 60-day freedom period prior to its expiry.

The purpose of this rule is ensure stability in the relationship of the workers
and the employer by preventing frequent modifications of any CBA entered into
by them in good faith and for the stipulated original period.

Requisites of Contract Bar

1. It must contain substantial terms and conditions of employment

sufficient to stabilize the bargaining relationship;

2. It must be signed by the parties; and

3. The effective date and expiration date must be readily discernible on the
face of the contract

Contract bar rule applied on extended CBA under deadlock

No petition for certification election may be filed before the onset of the
freedom period nor after such period. The old CBA is extended until a new one is
signed. It 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.

The contract bar rule does not apply in the following cases:
 1. Where there is an automatic renewal provision in the CBA but prior to
the date when such automatic renewal became effective, the employer
seasonably filed a manifestation with the Bureau of Labor Relations of its
intention to terminate the said agreement if and when it is established that the
bargaining agent does not represent anymore the majority of the workers in the
bargaining unit.

2. Where the CBA, despite its due registration, is found in appropriate

proceedings that

(a) it contains provisions lower than the standards fixed by law; or

(b) the documents supporting its registration are falsified, fraudulent or

tainted with misrepresentation.

3. Where the CBA does not foster industrial stability, such as contracts
where the identity of the representative is in doubt since the employer extended
direct recognition to the union and conducted a CBA therewith less than one (1)
year from the time a certification election was conducted where the “no union”
vote won.

This situation obtains in a case where the company entered into a CBA with
the union when its status as exclusive bargaining agent of the employees has not
been established yet.

4. Where the CBA was registered before or during the last sixty (60) days of
a subsisting agreement or during the pendency of a representation case. It is well-
settled that the 60-day freedom period based on the original CBA should not be
affected by any amendment, extension or renewal of the CBA for purposes of
certification election.

Denial; Other grounds:

1. Non-appearance: When petitioner does not appear in two (2) successive

conferences called by the Med-Arbiter, the petition may be dismissed.
 2. Illegitimacy – Unregistered union: When the petitioning union is not
listed in DOLE’s list of LLOs or if its registration has been cancelled.

Q: Does the filing of a petition for cancellation of registration of union

cause the suspension or dismissal of a PCE?

A: NO.An order to hold a certification election is proper despite the

pendency of the petition for cancellation of the registration certificate of the
respondent union. The rationale for this is that at the time the respondent union
filed its petition, it still had the legal personality to perform such act absent an
order directing the cancellation (Association of Court of Appeals Employees v.
FerrerCalleja, G.R. No. 94716, November 15, 1991).

NOTE: The finality of a decision canceling the certificate of registration of a

LLO would not retroact to the time of its issuance of the certificate. Meaning, that
despite the fact that a PCE is filed during the pendency of a trial ruling over the
legitimacy of a labor union, the filing for said petition was done when it still had
legal personality. Additionally, the legitimacy of the legal personality of a
LLOcannot be collaterally attacked. It must be done in a separate action (Legend
International Resorts Limited v. Kilusang Manggagawa Ng Legenda, G.R. No.
169754, February 23, 2011).

Q: Are there exceptions that would bar the proceedings of the PCE?

A: No definitive ruling yet. In a decided case by the Supreme Court, it was

held that proceedings may be suspended if there is a charge of “company
domination” or company unionism which is ultimately, an unfair labor practice.

NOTE: The above ruling is placed under serious doubt by the words and
intention of D. O. No. 40-03 which does not favor “prejudicial questions” that
block certification proceedings (2 Azucena, 2016, p. 485).

3. Illegitimacy – No charter: When the union fails to submit a duly issued

charter certificate of the chapter at the time the union files its PCE, it will cause
the dismissal of the PCE.
 4. Absence of employment relationship: Employees right to unionize is
founded on the existence of Er-Ee relationship. If there is none, there would be no
basis. Med-Arbiter can determine Er-Ee relationship Med-Arbiter has the
authority to determine existence of Er-Ee relationship in a PCE

5. Lack of support (25% signature requirement): When the union filing a

PCE does not have the support of 25% of the bargaining unit manifested through
their signatures, the PCE may be denied.

Reason: without this minimum support, the challenge to the incumbent

union looks like a nuisance. It must appear that a sizeable portion of the
employees desires to have a union.

This requirement only applies to organized establishments. In unorganized

establishments, it is merely directory.

NOTE: 25% requirement may be relaxed by the Med-Arbiter and order the
holding of the certification election precisely for the purpose of ascertaining
which of the contending unions shall be the EBA.

Effect of withdrawal of signature by the employees

Critical factor to consider is when the withdrawal happened:

1. If it is made before the filing, the withdrawal is presumed voluntary and

affects the propriety of the petition

2. If it is made after the filing, the withdrawal is deemed involuntary and

does not cause the dismissal of the petition.

Appeal of grant or denial of PCE

It would depend if the establishment is organized or unorganized.

1. In case of organized establishment, it is appealable.

2. In case of unorganized establishment, it is not appealable.

 NOTE: The filing or pendency of any inter/intraunion dispute and other
related labor relations dispute is not a prejudicial question to any petition for
certification election and shall not be a ground for the dismissal of a petition for
certification election or suspension of proceedings of certification of election (Sec.
2, Rule XI of D.O. 40- 03).

Double Majority rule (certification election)

1. Valid election – majority of eligible voters shall have validly cast their
votes (First Majority rule).

2. Winning Union – the winner who obtained majority of the valid votes
casts shall be declared as the bargaining agent in the bargaining unit (Second
Majority rule).

Q: LiwaywayGlass had 600 rank-and-file employees. Three rival unions A, B,

and C ‒ participated in the certification elections ordered by the Med-Arbiter. 500
employees voted. The unions obtained the following votes: A-200; B-150; C-50; 90
employees voted “no union”; and 10 were segregated votes. Out of the
segregated votes, four (4) were cast by probationary employees and six (6) were
cast by dismissed employees whose respective cases are still on appeal. (2014 Bar
Question)

a. Should the votes of the probationary and dismissed employees be

counted in the total votes cast for the purpose of determining the winning labor
union?

b. Was there a valid election?

c. Should Union A be declared the winner

d. Suppose the election is declared invalid, which of the contending unions

should represent the rank-and-file employees?

e. Suppose that in the election, the unions obtained the following votes: A-
250; B-150; C-50; 40 voted “no union”; and 10 were segregated votes. Should
Union A be certified as the bargaining representative?
 A: a. YES.Rule IX, Section 5 of DOLE Department Order 40-03 provides that
“all employees who are members of the appropriate bargaining unit sought to be
represented by the petitioner at the time of the issuance of the order granting the
conduct of a certification election shall be eligible to vote. An employee who has
been dismissed from work but has contested the legality of the dismissal in a
forum of appropriate jurisdiction at the time of the issuance of the order for the
conduct of a certification election shall be considered a qualified voter, unless
his/her dismissal was declared valid in a final judgment at the time of the conduct
of the certification election.”

b. YES. To have a valid election, at least a majority of all eligible voters in

the unit must have cast their votes. In the instant case, 500 out of 600 rank-and-
file employees voted.

c. NO. The Labor Code provides that the Labor Union receiving the majority
of the valid votes cast shall be certified as the exclusive bargaining agent of all the
workers in the unit. Here, the number of valid votes cast is 490; thus, the winning
union should receive at least 246 votes. Union A only received 200 votes.

d. None of them should represent the rank-and-file employees

e. YES. The Labor Code provides that the Labor Union receiving the
majority of the valid votes cast shall be certified as the exclusive bargaining agent
of all the workers in the unit Here, the number of valid votes cast is 490.

Thus, the winning union should receive at least 246 votes; Union A received
250 votes.

Employer as a Bystander (Bystander Rule)

In all cases, whether the PCE is filed by an Er or a LLO, the Er shall not be
considered a party thereto with a concomitant right to oppose a PCE. The Er’s
participation in such proceedings shall be limited to:

1. Being notified or informed of petitions of such nature; and

 2. Submitting the list of Ees during the preelection conference should the
MediatorArbiter act favorably on the petition (Republic v. Kawashima Textile, G.R.
No. 160352, July 23, 2008).

Q: May an organization which carries a mixture of rank-and-file and

supervisory employees possess any of the rights of a legitimate labor
organization, including the right to file a petition for certification election for
the purpose of collective bargaining?

A: YES. While there is a prohibition against the mingling of supervisory and

rank-and-file employees in one labor organization, the Labor Code does not
provide for the effects thereof. Thus, the Court held that after a labor organization
has been registered, it may exercise all the rights and privileges of a legitimate
labor organization. Any mingling between supervisory and rank-and-file
employees in its membership cannot affect its legitimacy for that is not among the
grounds for cancellation of its registration, unless such mingling was brought
about by misrepresentation, false statement or fraud under Article 239 of the
Labor Code (Republic vs. Kawashima Textile, G.R. No. 160352, July 23, 2008)

Certification Election Union Election

The process, ordered and supervised by Held pursuant to the union’s
DOLE, of determining, through secret constitution and by-laws, and the right
ballot, whether or not a majority of the to vote in it is enjoyed only by union
employees wish to be represented by a members
labor union and, if so, by which union
All employees whether union members Only members of that union may vote
or not, who belongs to the bargaining unless otherwise authorized by the
unit can vote union constitution and by-laws
Held according to the Labor Code and Procedure is governed by the union by-
its implementing rules laws
. The winner in a certification election is Winners in a union election become
an entity, a union, which becomes the officers and representatives of the
representative of the whole bargaining union only
unit that includes even the members of
the defeated union
 Q: Who can vote in the CE?

A: All employees who are members of the appropriate BU three (3) months
prior to the filing of PCE including those dismissed from work but has contested
the legality of the dismissal in a proper forum. The Code does not make any
distinction as to the employment status.

Issues directly involved in a certification proceeding

1. Proper composition and constituency of the bargaining unit; and

2. The veracity of majority membership claims of the competing unions so

as to identity the one union that will serve as the bargaining representative of the
entire bargaining unit.

NOTE: Some of the Ees may not want to have a union; hence, “no union” is
one of the choices named in the ballot. If “no union” wins, the company or the
bargaining unit remains ununionized for at least 12 months, the period is known
as 12-month bar. After that period, a PCE may be filed again.

Five-year representation status of a bargaining agent cannot be extended

While the parties may agree to extend the CBA’s original five-year term
together with all other CBA provisions, any such amendment or term in excess of
five years will not carry with it a change in the union’s exclusive CB status.

Under Art. 253-A, LC, the exclusive bargaining status cannot go beyond five
years and the representation status is a legal matter not for the workplace parties
to agree upon.

In other words, despite an agreement for a CBA with a life of more than
five years, either as an original provision or by amendment, the bargaining union’s
exclusive bargaining status is effective only for five years and can be challenged
within 60 days prior to the expiration of the CBA’s first five years (FVC Labor
Union-Philippine Transport and General Workers Organization v. Sama-
samangNagkakaisangManggagawasa FVC- Solidarity of Independent and General
Labor Organizations, G.R. No. 176249, November 27, 2009).
 Illegally dismissed employees of the companymay participate in the
certification election

It is now well-settled that Ees who have been improperly laid off but who
have at present an unabandoned right to or expectation of reemployment, are
eligible to vote in CEs. Thus, and to repeat, if the dismissal is under question, as in
the case now at bar whereby a case of illegal dismissal and/or ULP was filed, the
Ees concerned could still qualify to vote in the elections (Phiippine Fruits &
Vegetables Industries v. Torres, G.R. No. 92391, July 3, 1992).

Employees whose services were terminated are still entitled to vote

during the certification election

Provided that there is a pending illegal dismissal case filed by them. While
the case is still pending, the Er-Ee relationship is not yet severed.

How protest should be made during certification elections

Protest must be raised and contained in the minutes of the proceedings

otherwise it is deemed waived(National Association of Trade Free Unions v.
Mainit Lumber Development Co. Workers Union, G.R. No. 79526, December 21,
1990). Protests should be formalized before the Med-Arbiter within 5 days from
the close of the proceedings otherwise it is deemed abandoned (Timbungco v.
Castro, G.R. No. 76111, March 14, 1990).

Failure of Elections

When the number of votes cast is less than the majority of the number of
eligible voters

Effect of failure of elections A motion for the immediate holding of another

certification or consent election may be filed within 6 months from date of
declaration of failure of election.

Run-off Election

A run-off election refers to an election between the labor union receiving

the two highest votes in a certification election or consent election with three or
more unions in contention, where such certification election or consent election
results in none of the contending unions receiving the majority of the valid votes
cast; provided, that the total number of votes for all contending unions, if added,
is at least fifty percent (50%) of the number of valid votes cast (LC, Article 268, as
renumbered).

When to be conducted:

If conditions that justify the conduct of a run-off election are present and
there are no objections or challenges which, if sustained, can materially alter the
election results, the Election Officer should motu proprio a run-off election within
ten days from the close of the election proceeding between the labor unions
receiving the two highest number of votes cast.

Requirements for a run-off election

1. An election was conducted with three or more choices

2. None of the contending union obtained the required majority vote of

50% + 1 of the valid votes cast

3. There are no objections or challenges that can alter the results

materially

4. The number of votes received by all contending unions when added

together amounts to at least 50% of the total votes cast

NOTE: Thus if “no union” garnered the majority vote, no run-off elections
may be held.

Choices in a run-off election

The unions receiving the highest and 2nd highest number of the votes cast
(IRR, Book V, Rule X, Sec. 2). “No Union” is not a choice in the Run-off Election.
 Posting of notice for run-off election

The notice should be posted by the Election Officer at least five days
before the actual date (IRR, Book V, Rule X, Sec. 1).

Re-run Election

There are three instances of Re-Run:

1. Failure on certification on election declared by the election officer;

2. Tie between two union; 3. Tie between a union and no union. In both
instances, the “no union” is also a choice.

CONSENT ELECTIONS

is an election that is voluntarily agreed upon by the parties with or without

the intervention of DOLE for the purpose of determining the EBA

Difference between Certification Election and Consent Election

Certification Election Consent Election

Ordered by DOLE Voluntarily agreed upon by the parties
with or without the intervention of
DOLE

Duty of Fair Representation The winning union in the certification election

becomes the EBA of all the workers in the BU and shall represent even the
members of the minority union

EXCLUSIVE BARGAINING REPRESENTATION AND WORKER’S

PARTICIPATION IN POLICY AND DECISION-MAKING

Rule on solicitation of questions, suggestions and complaints by the Er

from the Ees who are represented by a union

GR: The Er may not solicit questions, suggestions and complaints from Ees
who are represented by a union.
 XPN:

1. The CB representative executes an agreement waiving the right to be

present on any occasion when Ee grievances are being adjusted by the Er; and

2. Er acts strictly within the terms of his waiver agreement.

Q: What is the meaning or extent of the workers’ right to participate in

policy and decision-making? Does it carry approval/ disapproval power?

A: The deliberations of the 1986 Constitutional Commission reveal the

intention was to refer to participation in grievance procedures, voluntary modes of
settling disputes, and collective bargaining, and not to formulation of corporate
programs or policies (Azucena, 206, p. 449).

Q: The hotel union filed a Notice of Strike with the National Conciliation
and Mediation Board (NCMB) due to an unfair labor practice against the
Diamond Hotel who refused to bargain with it. The hotel advised the union that
since it was not certified by the DOLE as the exclusive bargaining agent, it could
not be recognized as such. The union sought to bargain for members only. May
the Union bargain collectively?

A: NO. Art. 267 (formerly Art. 255) of the LC declares that only the labor
organization designated or selected by the majority of the Ees in an appropriate
CB unit is the exclusive representative of the Ees in such unit for the purpose of CB.
The union is admittedly not the exclusive representative of the majority of the Ees
of the hotel, hence, it could not demand from the hotel the right to bargain
collectively in their behalf (Manila Diamond Hotel v. Manila Diamond Hotel Ees
Union, G.R. No. 158075, June 30, 2006).

Principle of Codetermination or co-sharing (2007 Bar)

It refers to the right of workers to participate in policy and decision-making

process affecting their rights and benefits (PAL v. NLRC, G.R. No. 85985, August
13, 1993; 1987 Constitution, Art. XIII, Sec. 3).
 Individual Grievance

The presence of an employees’ organization (a union, an LMC or other

forum), does not replace the individual employee’s right to pursue grievances.
Each employee retains the right to deal with his or her employer, and vice-versa
(Article 267, LC).

Q: Does the worker’s right to participate in policy and decision-making

process as provided under Art. XIII, Sec. 13 of the 1987 Constitution include
membership in the Board of Directors of a corporation? (2008 Bar)

A: NO. The SC recognized the right of the union to participate in policy

formulation and decision-making process on matters affecting the union
members’ rights, duties and welfare. However, such participation of the union in
committees of the Er is not in the nature of a co-management control of the
business.

Impliedly, therefore, workers’ participatory right in policy and decision-

making processes does not include the right to put a union member in a
corporation’s Board of Directors (Manila Electric Company v. Quisumbing, G.R. No.
127598, January 27, 1999).

Q: May the employees’ demand participation in making the company’s

code of discipline?

A: YES. the employee’s may demand participation. The Supreme Court

declared that employees possess the right to participate in the deliberation of
matters which may affect their rights and the formulation of policies relatvie
therto (PAL v. NLRC, G.R. No. 85985, August 13. 1993).

NOTE: Participatory right does not grant Management control. When the
subject of the company policy affects the employee’s tenure; hence, employees’
participation is required in shaping the policy
 Q: Enumerate at least four (4) policies enshrined in Section 3, Article XIII
of the Constitution that are not covered by Article 3 of the Labor Code on
declaration of basic policy. (BAR 2009)

A: 1. All workers shall have the right to peaceful concerted activities,

including the right to strike in accordance with law.

2. They shall be entitled to a living wage.

3. They shall participate in policy and decision making processes affecting

their rights and benefits as may be provided by law.

4. The state shall promote the principle of shared responsibility between

workers and employers [Answers to Bar questions in Labor law and Social
Legislations, UP law complex (2017), p. 137].