Certification election

The workers in a bargaining unit have the right to choose their sole and exclusive bargaining agent through the process of certification election.

Summary

▪ The certification election determines who will be the sole and exclusive bargaining agent in an organized establishment, particularly if there is more than one (1) legitimate labor organization.

▪ A legitimate labor organization may file a petition for certification election to be certified as the exclusive bargaining agent.

▪ The employer may also file a petition for certification election and thereafter be considered as a bystander or a non-party.

1. Concepts

“Certification election” – is the process of determining the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of collective bargaining. (National Union of Workers in Hotels v. DOLE Secretary, G.R. No. 181531, 31 July 2009)

“Collective bargaining” – refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit. (Ibid.)

a. Two-fold objective

The conduct of a certification election has a two-fold objective: to determine the appropriate bargaining unit and to ascertain the majority representation of the bargaining representative, if the employees desire to be represented at all by anyone. It is not simply the determination of who between two or more contending unions won, but whether it effectively ascertains the will of the members of the bargaining unit as to whether they want to be represented and which union they want to represent them. (Ibid.)

2. Petition for certification election

a. 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 any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its local/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. (Article 269, P.D. 442, Labor Code)

In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter’s officers and members. (Ibid.)

b. Representation Issue in Organized Establishments

1) Verified petition with 25% written consent

In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by any legitimate labor organization including a national union or federation which has already issued a charter certificate to its local chapter participating in the certification election or a local chapter which has been issued a charter certificate by the national union or federation before the Department of Labor and Employment within the sixty (60)-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 percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. (Article 268, Ibid.)

If petition filed by a national union/federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter’s officers and members. (Ibid.)

Status quo. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. (Ibid.)

2) Majority votes cast

To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. 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. (Ibid.)

Run-off elections. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. (Ibid.)

c. Double majority rule

Under the so-called “double majority rule,” for there to be a valid certification election, majority of the bargaining unit must have voted AND the winning union must have garnered majority of the valid votes cast. (National Union of Workers in Hotels v. DOLE Secretary, supra.)

3. Employee’s right to vote

The significance of an employee’s right to vote in a certification election cannot thus be overemphasized. For he has considerable interest in the determination of who shall represent him in negotiating the terms and conditions of his employment. (Ibid.)

a. Employment status, irrelevant

In a certification election, all rank and file employees in the appropriate bargaining unit, whether probationary or permanent are entitled to vote. This principle is clearly stated in Art. 255 of the Labor Code which states that the “labor organization designated or selected by the majority of the employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for purposes of collective bargaining.” Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. Hence, all rank and file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility in supporting the petition for certification election. The law refers to “all” the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the “bargaining unit.” (Airtime Specialist, Inc. v. Ferrer-Calleja, G.R. No. 80612-16, 29 December 1989)

National Union of Workers in Hotels v. DOLE Secretary
G.R. No. 181531, 31 July 2009
The relevant issues for resolution then are first, whether employees on probationary status at the time of the certification elections should be allowed to vote, and second, whether HIMPHLU was able to obtain the required majority for it to be certified as the exclusive bargaining agent.
On the first issue, the Court rules in the affirmative.
The inclusion of Gatbonton’s vote was proper not because it was not questioned but because probationary employees have the right to vote in a certification election. The votes of the six other probationary employees should thus also have been counted…
x x x
The provision in the CBA disqualifying probationary employees from voting cannot override the Constitutionally-protected right of workers to self-organization, as well as the provisions of the Labor Code and its Implementing Rules on certification elections and jurisprudence thereon.
A law is read into, and forms part of, a contract. Provisions in a contract are valid only if they are not contrary to law, morals, good customs, public order or public policy.
x x x
In light of the immediately-quoted provisions, and prescinding from the principle that all employees are, from the first day of their employment, eligible for membership in a labor organization, it is evident that the period of reckoning in determining who shall be included in the list of eligible voters is, in cases where a timely appeal has been filed from the Order of the Med-Arbiter, the date when the Order of the Secretary of Labor and Employment, whether affirming or denying the appeal, becomes final and executory.

4. Employer’s role

a. Employer as Bystander

The “Bystander Rule” is already well entrenched in this jurisdiction. It has been consistently held in a number of cases that a certification election is the sole concern of the workers, except when the employer itself has to file the petition pursuant to Article 259 of the Labor Code, as amended, but even after such filing its role in the certification process ceases and becomes merely a bystander. The employer clearly lacks the personality to dispute the election and has no right to interfere at all therein. This is so since any uncalled-for concern on the part of the employer may give rise to the suspicion that it is batting for a company union. Indeed, the demand of the law and policy for an employer to take a strict, hands-off stance in certification elections is based on the rationale that the employees’ bargaining representative should be chosen free from any extraneous influence of the management; that, to be effective, the bargaining representative must owe its loyalty to the employees alone and to no other. (Holy Child Catholic School v. Sto. Tomas, En Banc, G.R. No. 179146, 23 July 2013)

In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a in such proceedings shall be limited to:

1) Being notified or informed of petitions of such nature; and,

2) Submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition. (Article 271, Ibid.)

Basic in the realm of labor union rights is that the certification election is the sole concern of the workers, and the employer is deemed an intruder as far as the certification election is concerned. Thus, the [employer] lacked the legal personality to assail the proceedings for the certification election, and should stand aside as a mere bystander who could not oppose the petition, or even appeal the Med-Arbiter’s orders relative to the conduct of the certification election. (The Heritage Hotel Manila v. DOLE Secretary, G.R. No. 172132, 23 July 2014)

Except when it is requested to bargain collectively, an employer is a mere bystander to any petition for certification election; such proceeding is non-adversarial and merely investigative, for the purpose thereof is to determine which organization will represent the employees in their collective bargaining with the employer. The choice of their representative is the exclusive concern of the employees; the employer cannot have any partisan interest therein; it cannot interfere with, much less oppose, the process by filing a motion to dismiss or an appeal from it; not even a mere allegation that some employees participating in a petition for certification election are actually managerial employees will lend an employer legal personality to block the certification election. The employer’s only right in the proceeding is to be notified or informed thereof. (Republic v. Kawashima Textile Mfg., Philippines, Inc., G.R. No. 160352, 23 July 2008)

b. When an employer may file petition

When requested to bargain collectively, an employer may petition the Bureau of Labor Relations (“Bureau”) for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election. (Article 270, Ibid.)

All certification cases shall be decided within twenty (20) working days. (Ibid.)

The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor. (Ibid.)

5. Appeal from Certification Election Orders

Any party to an election may appeal the order or results of the election as determined by the Med-Arbiter directly to the Secretary of Labor and Employment on the ground that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated. Such appeal shall be decided within fifteen (15) calendar days. (Article 272, P.D. 442, Labor Code)

References

Presidential Decree No. 442, Labor Code of the Philippines

DOLE Department Order No. 40, Series of 2003

DOLE Department Order No. 40-A-I, Series of 2003

DOLE Department Order No. 40-B, Series of 2003

DOLE Department Order No. 40-C, Series of 2004

DOLE Department Order No. 40-D, Series of 2005

DOLE Department Order No. 40-F-3, Series of 2008

DOLE Department Order No. 40-G-03, Series of 2010

DOLE Department Order No. 40-I, Series of 2015

DOLE Department Order No. 15, Series of 2015

▪ Jurisprudence or Supreme Court Decisions (as cited above)

Disclaimer: All information is for educational and general information only. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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