Labor Relations PDF

V. LABOR RELATIONS **Labor Relations** Refers to the interactions between employer and employees or their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted, and enforced. Constitutional provisions in relation to Labor Re...

V. LABOR RELATIONS **Labor Relations** Refers to the interactions between employer and employees or their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted, and enforced. Constitutional provisions in relation to Labor Relations Sec. 3, Art. XIII guarantees to all workers, among others, their right to: 1. 2. 3. **RIGHT TO SELF-ORGANIZATION** Right to Self-Organization Refers to the right of workers and employees to form, join, or assist unions, organizations, or associations for purposes of collective bargaining and/or for mutual aid and protection, including the right to engage in peaceful concerted activities and participate in policy-decision-making processes affecting their rights and benefits. It includes at least two (2) rights: 1. 2. Purpose of Exercise of Right to Self-Organization 1. 2. A collective bargaining agreement (CBA), also known as a union contract, is a written legal contract between an employer and a union representing employees. This agreement results from an extensive negotiation process covering essential topics such as wages, work hours and employment conditions. **Why do workers organize?** For self-advancement and the desire for: (a) job security; (b) substituting "rule of law" for the arbitrary power by the boss; and (c) sense of participation in the business enterprise. (Azucena, 2016) 1. a. b. 1. 2. 3. 4. When can an employee join a labor organization? Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered an employee for purposes of membership in any labor union. EMPLOYEES RESTRICTED TO FORM, JOIN, OR ASSIST LABOR ORGANIZATIONS a. b. c. d. e. f. g. h. **Managerial employees** A managerial employee is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay off, recall, discharge, assign, or discipline employees. (Art. 219(m), LC) Managerial employees are not eligible to join, assist or form any labor organization. (Art. 255, LC) The rationale for the inhibition is that if managerial employees would belong to or be affiliated with a union, the latter might not be assured of their loyalty to the union in view of evident conflict of interests. The union can become company- dominated with the presence of managerial employees in the union membership. (Bulleting Publishing Co., Inc. v. Hon. Sanchez, G.R. No. 74425, 07 Oct. 1986) Managerial employees cannot be allowed to share in the concessions obtained by the labor union through collective negotiation. Otherwise, they would be exposed to the temptation of colluding with the union during the negotiations to the detriment of the employer. (Azucena, 2016) **Supervisory employees** Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. (Art. 219(m), LC) Supervisory employees are allowed to organize, but they cannot form, join, or assist a rank-and-file union. (Azucena, 2016) **Confidential employees (in the field of labor relations)** A confidential employee is one who assists and acts in a confidential capacity to, or has access to confidential matters of, persons who exercise managerial functions in the field of labor relations. (Philips Industrial Development v. NLRC, G.R. No. 88957, 25 June 1992) NOTE: The phrase "in the field of labor relations" is important because it stresses the labor nexus, that is, the confidentiality of the position should relate to labor relations matters. **Employee-Members of a Cooperative** An employee of a cooperative who is also a member and co-owner thereof cannot invoke the right to collective bargaining, for an owner cannot bargain with himself or his co-owners. **Government Employees** Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. Government employees have the right to self- Organization. The highest law of the land guarantees to government employees the right to organize and to negotiate, but not the right to strike. Government employees' right to organize is for a limited purpose The right of government employees to "form, join, or assist employees' organizations of their own choosing" under E. O. No. 180 is not regarded as existing or available "for purposes of collective bargaining," but simply "for the furtherance and protection of their interests. Members of AFP, police officers, policemen, firemen, and jail guards E.O. No. 180 excludes members of AFP, police officers, policemen, firemen, and jail guards from unionizing for reasons of security and safety. **High-level Government employees** A high-level employee is one whose functions are normally considered policy determining, managerial or one whose duties are highly confidential in nature. They cannot join the organization of rank-and-file government employees. (E.O. No. 180) NOTE: In the public sector, there are only two levels of position: high level and rank-and-file. **Employees of International Organizations** International organizations are immune from Philippine jurisdiction. (i.e., ICMC, IRRI, ADB) Thus, a certification election cannot be conducted in an international organization which has been granted immunity from local jurisdiction. (ICMC v. Hon. Pura Calleja, G.R. No. 89331, 28 Sept. 1990) EXCEPTION: However, the international organization has the discretion to waive its immunity. Without such express waiver, the NLRC or its labor arbiters have no jurisdiction over international organizations, even in cases of alleged illegal dismissal of any of its employees. (Callado **Foreign Workers** Foreigners are prohibited from engaging in all forms of trade union activities. However, an alien working in the country with a valid working permit may exercise the right to self-organization if they are nationals of a country which grants the same or similar right to Filipino workers. **Religious objectors;** Members of religious sects cannot be compelled or coerced to join labor unions even when said unions have closed-shop agreements with the employers. Free exercise of religious belief is superior to contract rights. In case of conflict, the latter must yield to the former. 2. 1. 2. 3. 4. **NON-INTERFERENCE WITH WORKERS' RIGHT TO SELF-ORGANIZATION** It shall be unlawful for any person to restrain, coerce, discriminate against, or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to form, join, or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Art. 264 of the Labor Code. An employee cannot invoke an absolute right to union membership. The right to self-organization and collective bargaining comprehends at least two broad notions, namely: It is, therefore, the employee who should decide for himself whether or not he should join an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. **Right to Union Membership** 1. 2. 3. 4. 1. 2. 1. 1. 2. 3. 4. 5. **Where to Register** 1. 2. **Classification of Labor Organizations** At the National Level 1\. National Union/Federation; 2\. Industry Union; 3\. Trade Union Center; and 4\. Company Union. At the Enterprise Level 1\. Independent Union; and 2\. Chapter. **CANCELLATION OF REGISTRATION** Grounds for Cancellation of Registration (R-E-V) 1. 2. 3. Note: If there are supervisors that are joined with the rank-and-file employees union, would that be a ground for cancellation of registration? Answer: NO. Those who do not properly belong to the union are deemed automatically removed from the union by operation of law. (Art. 256, LC) **3. AFFILIATION/DISAFFILIATION FROM NATIONAL UNION OR FEDERATION** A local union may affiliate with or disaffiliate from a federation. This is an exercise of the right of association recognized by the Constitution. Between the chapter and the federation, affiliation or disaffiliation is a contractual relation. Hence, even if disaffiliation is a matter of right, the local must comply with the obligations under the CBL such as manner and period of notice. Affiliate An affiliate refers to: 1\. An independently registered union that enters into an agreement of affiliation with a federation or national union; or 2\. A chartered local which applies for and is granted an independent registration but does not disaffiliate from its mother federation or national union. **How local chapter is created** A duly registered federation or national union may directly create a local/chapter by issuing a charter certificate indicating the establishment of a local/chapter. 1. 2. a. b. c. 3. a. b. **Reportorial Requirements in Affiliation** The report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by the following documents: 1. 2. 3. 4. **Reasons for Affiliation** 1. 2. 3. **Independently registered union is required to report affiliation with the Regional Office** A union affiliating with a federation or national union is required to report such affiliation to the Regional Office that issued its certificate of registration. \\ **Disaffiliation of local union from the federation** GR: A labor union may disaffiliate from the mother union to form an independent union only during the 60-day freedom period immediately preceding the expiration of the CBA. XPN: Even before the onset of the freedom period, disaffiliation may still be carried out, but such must be effected by the majority of the union members in the bargaining unit. Disaffiliation must be decided by the entire membership through secret balloting in accordance with Art. 250(d). This happens when there is a substantial shift in allegiance on the part of the majority of the members of the union. In such a case, however, the CBA continues to bind the members of the new or disaffiliated and independent union to determine the union which shall administer the CBA. **Disaffiliation must be by majority decision** Disaffiliation must be decided by the entire membership through secret balloting in accordance with Art. 250 (d). An individual member or any number of members may disaffiliate from the union during the "freedom period" but disaffiliating the union itself from the mother union must be supported by the majority of the members. If done by a minority, even during the freedom period, the act may constitute disloyalty. They may be expelled from the union or may be removed from their employment because of the union security clause. Limitation to Disaffiliation Effect of Disaffiliation 1\. Union Dues -- the obligation of an employee to remit union dues to the mother is coterminous with the affiliation or membership of its local. The dues must now be remitted to the local. 2\. Existing CBA -- the CBA continues to bind the members of the new or disaffiliated and independent union up to the CBA's expiration date based on the 'Substitutionary Doctrine.' **Revocation of Charter** A federation may revoke the charter issued to a local/chapter by serving a verified notice of revocation, copy furnished to the Bureau, on the ground of disloyalty or such other grounds as may be specified in the constitution and by-laws of the federation. (Sec. 5, Rule VIII, Book V, IRR). +-----------------------------------+-----------------------------------+ | **Effect of Revocation: | | | Independently Registered vs. | | | Unregistered Chartered Local | | | Union** | | +===================================+===================================+ | **INDEPENDENTLY REGISTERED** | **UNREGISTERED** | +-----------------------------------+-----------------------------------+ | **Effect of Disaffiliation to the | | | Union (local)** | | +-----------------------------------+-----------------------------------+ | Would not affect its being an LLO | Would cease to be an LLO and | | and therefore, it would continue | would no longer have the legal | | to have legal personality and to | personality and the rights and | | possess all rights and privileges | privileges granted by law to LLO, | | of LLO. | unless the local chapter is | | | covered by its duly registered | | | CBA. | +-----------------------------------+-----------------------------------+ | **Effect of Disaffiliation to the | | | CBA** | | +-----------------------------------+-----------------------------------+ | An existing CBA would continue to | The CBA would continue to be | | be valid as the labor | valid up to its expiration date. | | organization can continue | | | administering the CBA. | | +-----------------------------------+-----------------------------------+ | **Entitlement to Union Dues after | | | Disaffiliation** | | +-----------------------------------+-----------------------------------+ | Labor organization entitled to | Union dues may no longer be | | the union dues and not the | collected as there would no | | | longer be any labor union that is | | federation from which the labor | allowed to collect such union | | org | dues from the Ees. | +-----------------------------------+-----------------------------------+ **Effect of Revocation** GR: The revocation shall divest the local/chapter of its legal personality upon receipt of the notice by the Bureau. XPN: If the local/chapter has acquired independent registration. **Effect of Cancellation of Registration of Federation or National Union on locals/chapters** GR: The cancellation shall operate to divest its locals/chapters of their status as legitimate labor organizations. XPN: Locals/chapters are covered by a duly registered CBA. NOTE: In the latter case, locals/chapters shall be allowed to register as independent unions. If they fail to register, they shall lose their legitimate status upon the expiration of the CBA. Q: PSEA is a local union in Skylander Company which is affiliated with PAFLU. PSEA won the certification election among the rank-and-file employees of the Skylander Company but its rival union PSEA-WATU protested the results. Pending the resolution of such controversy, PSEA disaffiliated with PAFLU and hence affiliated with NCW which was supported by its members. May a local union disaffiliate with its mother federation pending the settlement of the status as the sole and exclusive bargaining agent? A: YES. The pendency of an election protest does not bar the valid disaffiliation of the local union which was supported by the majority of its members. The right of a local union to disaffiliate with the federation in the absence of any stipulation in the Constitution and by-laws of the federation prohibiting disaffiliation is well settled. Local unions remain as the basic unit of association, free to serve their own interest subject to the restraints imposed by the Constitution and by-laws of national federation and are free to renounce such affiliation upon the terms and conditions laid down in the agreement which brought such affiliation to existence **Substitutionary Doctrine** This doctrine holds that the employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. The new agent must respect the contract. The employees, through their new bargaining agent, cannot renege on the collective bargaining contract, except to negotiate with the management for the shortening thereof. The Substitutionary Doctrine, however, cannot be invoked to support the contention that a newly certified collective bargaining agent automatically assumes all the personal undertakings---like the no- strike stipulation here---in the collective bargaining agreement made by the deposed union. When EBR bound itself and its officers not to strike, it could not have validly bound all the other rival unions existing in the bargaining units in question. **4. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS** A legitimate labor organization shall have the right: a. b. c. d. e. f. g. **(START FROM HERE)** **5. RIGHTS AND CONDITIONS OF MEMBERSHIP IN LEGITIMATE LABOR ORGANIZATIONS** The rights of union members may be summarized as follows: (Pol-M-I-D) a. b. c. d. a. b. 1. 2. 3. 4. 5. 6. c. 1. 2. 3. d. Q: When, how, and under what conditions does an employee become a union member? A: The answer depends on the union's constitution and by-laws. The Labor Code gives a labor organization the right to prescribe its own rules for acquisition or retention of membership. Nonetheless, an employee is already qualified for union membership starting on his first day of service. (Azucena, 2016) **Expulsion of a Union Member** A member of a union may be expelled but only for a valid cause and by following the procedure outlined in the constitution and by-laws. A member is entitled to due process. Expulsion of a member for arbitrary or impetuous reasons may amount to ULP by the union. **Election of Union Officers** Q: What positions should be filled up, when, and how should the election be done? A: It depends on the union's constitution and by- laws or the agreement among the members. In the absence thereof, the Implementing Rules of Book V shall apply. **Officers are elected by the members through secret ballot voting.** **Eligibility of Voters** Only union members can take part in the election of union officers. The election takes place at intervals of five (5) years, which is the term of office of the union officers. **Election under the Implementing Rules** The incumbent president should create an election committee within 60 days before expiration of the term of incumbent officers. The Rules specify the composition of the election committee as well as its powers and duties. If the officers with expired term do not call an election, the remedy is for at least 30% of the members to file a petition with the DOLE Regional Office. **Union Officer must be an Employee** No person who is not an employee or worker of the company or establishment where a union operates shall be elected or appointed as an officer of such union. Only an employee may be a union officer. **Disqualification of Union Officers** The following are disqualified to become union officers: 1. 2. 3. **Frustration over incumbent officers of the union does not justify disregard of union's constitution and by-laws** Frustration over the performance of the incumbent officers, as well as their fears of a fraudulent election to be held under the latter's supervision, could not justify the imposition of their own will on the union. The organizations shall have the right to draw up their own constitution and rules and to elect their representatives in full freedom, free from any interference from public authorities. The union members should respect the constitution and rules they themselves draw up equally so. The CBL is the fundamental law that governs the relationship between and among the members of the union. **Due Process in Impeachment of Union Officers** Despite practical difficulties in complying with the procedure laid down in the constitution and by-laws, the impeachment procedure contained therein must be substantially complied with. Q: Can a labor organization prescribe rules and regulation with respect to voting? A: YES. It may require reasonable period of prior membership (such as six months or a year). It may also condition the exercise of right to vote on the payment of dues since paying dues is a basic obligation of membership. However, this is subject to two (2) qualifications: (a) it must be applied uniformly; and (b) members must be afforded a reasonable opportunity to pay dues, including a grace period during which dues may be paid without any loss of rights. It should be noted however, that it cannot create special classes of non-voting members. Obtaining Relief with the Union **GR (General Rule):** First, redress must be sought with the union itself in accordance with the constitution and by- laws. When the intra-union remedy fails, a case can be filed with the Bureau of Labor Relations. **XPN (Exception):** When the exhaustion of remedies with the union would practically amount to a denial of justice. Then, it cannot be insisted upon as a condition to the right to invoke the aid of the court. **30% Requirement** GR: At least 30% of the members are required to report a violation of labor organization procedures. XPN: When such violation affects only one or two members, then only one or two members would be enough to report such violation. **Visitorial power of SOLE to inquire into the financial activities of labor organizations** SOLE is authorized to inquire into the financial activities of any labor organization to determine compliance or non-compliance with the laws and to aid in the prosecution of any violation thereof. It is initiated on the basis of: 1. 2. **Dues and assessments which the union may collect** Legitimate labor organizations are authorized to collect reasonable amounts of the following: 1. 2. 3. 4. 5. 6. **CHECK OFF, ASSESSMENTS, UNION DUES, AND AGENCY FEES** **Check Off** A check-off is a method of deducting from the employee's pay at prescribed periods, any amount due for fees, fines, or assessments. It is a process or device whereby the employer, on agreement with the union recognized as the proper bargaining representative, or on prior authorization from its employees, deducts union dues and assessments from the latter's wages and remits them directly to the union. **Requirements for a Valid Check-Off** 1. 2. 3. NOTE: Under Art. 113, one of the lawful deductions from employee's wage is for "union dues, in cases where the right of the worker or his union to check- off has been recognized by the employer or authorized in writing by the individual worker concerned. **Jurisdiction over Check-Off Disputes** Being an intra-union dispute, the Regional Director of DOLE has jurisdiction over check off disputes. (Art. 250(p), LC) **Assessments** Payments used for a special purpose. Especially if required only for a limited time **Requisites to Collect Special Assessment** GR: No special assessments, attorney's fees, negotiation fees, or any other extraordinary fees may be checked off from any amount due to an employee unless there is: 1. 2. 3. The authorization should specify the: 1\. Amount; 2\. Purpose; and 3\. Beneficiary of the deduction. Exceptions a\. For mandatory activities under the LC; b\. For Agency Fees; c\. When non-members of the union avail of the benefits of the CBA: 1. 2. **Effect of failure to strictly comply with the requirements set by law** It shall invalidate the questioned special assessments. Substantial compliance with the requirements is not enough in view of the fact that the special assessment will diminish the compensation of union members. **Union Dues** These are regular monthly contributions paid by the members to the union in exchange for the benefits given to them by the CBA and to finance the activities of the union in representing the union. **Nature and purpose of union dues** Union dues are the lifeblood of the union. All unions are authorized to collect reasonable membership fees, union dues, assessments, fines, and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund, and credit and cooperative undertakings. **Agency Fees** It is an amount equivalent to union dues, which a non-union member pays to the union because he benefits from the CBA negotiated by the union. NOTE: Payment by non-union members of agency fees does not amount to unjust enrichment because the purpose of such dues is to avoid discrimination between union and non-union members. The source of Agency Fee is not contractual but is based from quasi-contract. **Requisites for Assessment of Agency Fees** 1. 2. 3. NOTE: The individual authorization required under Art. 250(n) shall not apply to non-members of the recognized CB agent with regard to assessment of agency fees. The employee\'s acceptance of benefits resulting from a collective bargaining agreement justifies the deduction of agency fees from his pay and the union\'s entitlement thereto. In this aspect, the legal basis of the union\'s right to agency fees is neither contractual nor statutory, but quasi-contractual deriving from the established principle that non- union employees may not unjustly enrich themselves by benefiting from employment conditions negotiated by the bargaining union. (Holy Cross of Davao College v. Hon. Joaquin, G.R. No. 110007, 18 Oct. 1996) **Limitation on the Amount of Agency Fee** The bargaining union cannot capriciously fix the amount of agency fees it may collect from its non- members. Article 248(e) of the Labor Code expressly sets forth the limitation in fixing the amount of the agency fees, thus: 1\. It should be reasonable in amount; and 2\. It should be equivalent to the dues and other fees paid by members of the recognized collective bargaining agent. Q: A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is the recognized exclusive bargaining agent. Although A is a member of rival union XYR-MU, he receives the benefits under the CBA that XYZ-EU had negotiated with the company. XYZ-EU assessed A, a fee equivalent to the dues and other fees paid by its members but A insists that he has no obligation to pay said dues and fees because he is not a member of XYZ--EU and he has not issued an authorization to allow the collection. Explain whether his claim is meritorious. (2010 BAR) A: NO. The fee exacted from A takes the form of an agency fee which is sanctioned by Art. 248 (now 259) (e) of the Labor Code. The collection of agency fees in an amount equivalent to union dues and fees from Ees who are not union members is recognized under the LC. The union may collect such fees even without any written authorization from the non- union member Ees, if said Ees accept the benefits resulting from the CBA. The legal basis of agency fees is quasi-contractual. (Del Pilar Academy v. Del Pilar Academy Employees Union, G.R. No. 170112, 30 Apr. 2008) Union Dues vs. Agency Fees Union Dues- Collected from union members - Agency Fees - Collected by the union from non-members belonging to the same bargaining unit who receive the benefits under the CBA. - **UNION SECURITY CLAUSE** Union security is a generic term, which is applied to and comprehends \"closed-shop,\" \"union-shop,\" \"maintenance of membership,\" or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. Kinds of union security clause 1. 2. 3. Dismissal by virtue of stipulation in the CBA- Moreover, a stipulation in the CBA authorizing the dismissal of employees is of equal import as the statutory provisions on dismissal under the Labor Code, since a CBA is the "law between the company and the union and compliance therewith is mandated by the express policy to give protection to labor." In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: 1. 2. 3. **C. BARGAINING REPRESENTATIVE** An Organized establishment is an enterprise where there exists a recognized or certified sole and exclusive bargaining agent. An Unorganized establishment, on the other hand, is an enterprise where no union has yet been duly recognized or certified as a 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. (Art. 267, LC) Three (3) methods of determining the exclusive bargaining representative: 1\. SEBA Certification 2\. Certification Election 3\. Consent Election MODES TO ACQUIRE STATUS AS SOLE AND EXCLUSIVE BARGAINING AGENT SEBA Certification 1. 2. a. b. c. 3. 4. a. 1. 2. Scenarios contemplated by the Rules on Request for Sole and Exclusive Bargaining Agent Certification i\. Request certification in UNORGANIZED establishment with ONLY ONE LEGITIMATE UNION. ii\. Request for certification in UNORGANIZED establishment with MORE THAN ONE LEGITIMATE LABOR ORGANIZATION iii\. Request for certification in ORGANIZED establishment **i. Unorganized -- Only One Legitimate Union Organized** The DOLE Regional Director shall call a conference within five (5) working days for the submission of the following: a. b. Effect of the Issuance of the Certification as SEBA 1. 2. **ii. Unorganized -- More Than One Legitimate Labor 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. **iii. Organized** 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. (Sec. 1(h), Rule I, Book V, IRR) 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. **Certification proceedings directly involve only two issues** 1. 2. **Purpose of a Certification Election** It is a means of determining the worker's choice of: 1. 2. **Filing a Petition for Certification Election (PCE)** The following may file a PCE: 1. 2. 3. 4. **Employer may file a Petition for Certification Election** Er may file a petition for certification election when requested to bargain collectively, but it should thereafter not be allowed to have an active role in the CE; it shall merely act as a bystander. **Equity of the Incumbent** The incumbent bargaining agent shall automatically be one of the choices in the certification election as forced intervenor. (Rule VIII, Sec. 8, DO 40-03). 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. **No Union as a Choice** The right to join a union includes the right to not to join. (Victoriano v. Elizalde Rope Workers Union, G.R. L-25246, 12 Sept. 1974) In view of this, the "no union" choice should always be included in the certification election. If the "no union" option wins, the statutory bar rule shall apply. Thus, there will be no SEBA and no new PCE can be filed within one (1) year from the conduct of certification elections. **Time to File PCE** It would depend if the Bargaining Unit has a CBA or none. If there is none, the petition may be filed anytime except within the 12 months of a previous election, if any. If there is a CBA, the petition may only be filed within the "freedom period" of the representational aspect of the CBA. NOTE: Freedom period refers to the last 60 days immediately preceding the expiration of CBA. (Tanduay Distillery Labor Union v. NLRC, G.R. No. 75037, 30 Apr. 1987) Q: In what instance may a petition for certification election be filed outside the freedom period of a current collective bargaining agreement? 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. (Art. 237, 265, and 268, LC) 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. **Requisites For Certification Election** A. B. 1. 2. 3. **Filing of 25% Consent Signatures 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. Notwithstanding the provision of the IRR that failure to submit the required 25% consent signatures is a ground for the denial of the petition, the Supreme Court ruled that, it is within the discretion of the Med-Arbiter whether to grant or deny the petition despite absence of the required 25% written consent. (Port Workers Union v. Bienvenido Laguesma, G.R. Nos. 94929-30, 18 Mar. 1992) If the petition, however, is accompanied by the 25% consent signatures, then the holding of the CE becomes mandatory. **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 a 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. **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. **Consent Election** Consent election 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. **BARS TO THE HOLDING OF CERTIFICATION/CONSENT ELECTION** GR: In the absence of a CBA duly registered in accordance with Art. 237 of the Labor Code, a petition for certification election may be filed at any time. **Bar Rules** No certification election may be held under 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. This is also called as the 12-month Bar rule. The same ban applies if "No Union" won in the previous election. 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 a failure of election -- when the number of votes cast in a certification or consent election is less than the majority of the number of eligible votes and there is no material challenged votes. Failure of election does not bar the holding of another certification or consent election within six (6) months. NOTE: If an election had been held but No Union won, a PCE may be filed again but only after 12 months. c\. BARS TO THE HOLDING OF If a union has won, such union and the employer must within 12 months start negotiating 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 negotiating the terms and conditions of the CBA, no challenging union is allowed to file a petition for certification election that would disturb the process and unduly forestall the early conclusion of the agreement. If after the lapse of 12 months and they failed to commence the negotiation, the employees' wish to have a CBA is defeated. Hence, another union can petition again for a certification election to replace the unproductive bargaining agent. **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. Signs of Artificial Deadlock include failure of the union to resort to conciliation, failure to charge the Employer ULP, or failure to file a notice of strike despite the deadlock. **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 BLR in accordance with the Labor Code. Where the CBA is 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 to 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.