EMPLOYEES UNION OF BAYER PHILS., FFW and JUANITO S. FACUNDO, in his capacity as President, petitioners, vs.

BAYER PHILIPPINES, INC., DIETER J. LONISHEN (President), ASUNCION AMISTOSO (HRD Manager), AVELINA REMIGIO AND ANASTACIA VILLAREAL, respondents. FACTS:

Petitioner Employees Union of Bayer Philippines (EUBP) is the exclusive bargaining agent of all rank-and-file employees of Bayer Philippines (Bayer); also an affiliate of the Federation of Free Workers (FFW). 1997: EUBP, headed by its president Juanito S. Facundo (Facundo), negotiated with Bayer for the signing of a collective bargaining agreement (CBA); it resulted in a bargaining deadlock (9.9% wage increase proposal was rejected by Facundo) Thus, strike by EUBP was staged; DOLE assumed jurisdiction over the dispute November 1997: pending resolution, respondent Avelina Remigio (Remigio) and 27 other union members, without any authority from their union leaders, accepted Bayer's wageincrease proposal. EUBP's grievance committee questioned Remigio's action and reprimanded Remigio and her allies. January 1998: the DOLE Secretary issued an arbitral award ordering EUBP and Bayer to execute a CBA retroactive to January 1, 1997 til December 31, 2001. Meanwhile, the rift between Facundo's leadership and Remigio's group broadened; Remigio solicited signatures from union members in support of a resolution: (1) disaffiliate from FFW, (2) rename the union as Reformed Employees Union of Bayer Philippines (REUBP), (3) adopt a new constitution and by-laws for the union, (4) abolish all existing officer positions in the union and elect a new set of interim officers, and (5) authorize REUBP to administer the CBA between EUBP and Bayer. A tug-of-war then ensued between the two rival groups (Facundos group vs. Remigios group), with both seeking recognition from Bayer and demanding remittance of the union dues collected from its rank-and-file members. September 1998: Remigio's group wrote Facundo, etc. informing them that majority wished to disaffiliate from FFW. Facundo, meanwhile, sent similar requests to Bayer requesting for the remittance of union dues in favor of EUBP and accusing the company of interfering with purely union matters. Bayer responded by deciding not to deal with either, and by placing the union dues collected in a trust account until the conflict between the two groups is resolved. September 1998: EUBP filed a complaint for unfair labor against Bayer for non-remittance of union dues November 1998: EUBP later sent a letter to Bayer asking for a grievance conference. Such was unheeded. February 1999: while the first ULP case was still pending and despite EUBP's repeated request for a grievance conference, Bayer decided to turn over the collected union dues amounting to P254,857.15 to respondent Anastacia Villareal, Treasurer of REUBP. LABOR ARBITER DISMISSED: On June 18, 1999, Labor Arbiter Jovencio Ll. Mayor, Jr. dismissed the first ULP complaint for lack of jurisdiction. The Arbiter explained that the root cause for Bayer's failure to remit the collected union dues can be traced to the intra-union conflict between EUBP and Remigio's group and that the charges imputed against Bayer should have been submitted instead to voluntary arbitration. EUBP did not appeal the said decision. December 1999: petitioners filed a second ULP complaint against, complaining that Bayer refused to remit the collected union dues to EUBP despite several demands sent to the management and also, alleged that notwithstanding the requests sent to Bayer for a renegotiation of the last two years of the 1997-2001 CBA between EUBP and Bayer, the latter opted to negotiate instead with Remigio's group. On even date, REUBP and Bayer agreed to sign a new CBA.

NLRC and LA: Petitioners filed for issuance of RO or Injunction, asserting that their authority as the exclusive bargaining representative of all employees of Bayer and Regional Director of the Industrial Relations Division of DOLE: DISMISSED for failure to exhaust reliefs within the union and ordering the conduct of a referendum to determine which of the two groups should be recognized as union officers. Bureau of Labor Relations (BLR): REVERSED the Regional Director's ruling and ordered the management of Bayer to respect the authority of the duly-elected officers of EUBP in the administration of the prevailing CBA. Unfortunately, the said BLR ruling came late since Bayer had already signed a new CBA with REUBP on February 21, 2000. The said CBA was eventually ratified by majority of the bargaining unit. Labor Arbiter: DISMISSED EUBP's second ULP complaint for lack of jurisdiction. NLRC: resolved to DISMISS petitioners' motion for a restraining order and/or injunction stating that the subject matter involved an intra-union dispute, over which the said Commission has no jurisdiction. CA: affirmed LA and NLRC

ISSUES: 1. WHETHER OR NOT THE LABOR ARBITER AND THE NLRC HAVE JURISDICTION OVER THE INSTANT CASE; 2. WHETHER OR NOT THE INSTANT CASE INVOLVES AN INTRA-UNION DISPUTE; HELD:

Petitioners contention: Pertain to the unfair labor practice to Respondents contention: Contend that there can be no unfair labor practice on their part since the requisites for unfair labor practice i.e., that the violation of the CBA should be gross, and that it should involve violation in the economic provisions of the CBA were not satisfied.

The petition is partly meritorious. An intra-union dispute refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union's constitution and by-laws, or disputes arising from chartering or disaffiliation of the union.

Clear that the issues raised by petitioners do not fall under any of the aforementioned circumstances in RULE XI of Dept. Order 40-03 constituting an intra-union dispute. Issue raised pertained only to the validity of the acts of management in light of the fact that it still has an existing CBA with EUBP. Thus as to Bayer, Lonishen and Amistoso the question was whether they were liable for unfair labor practice, which issue was within the jurisdiction of the NLRC. The dismissal of the second ULP complaint was therefore erroneous. However, as to respondents Remigio and Villareal, we find that petitioners' complaint was validly dismissed. Petitioners' ULP complaint cannot prosper as against respondents Remigio and Villareal because the issue, as against them, essentially involves an intra-union dispute based on Section 1 (n) of DOLE Department Order No. 40-03. To rule on the validity or illegality of their acts, the Labor Arbiter and the NLRC will necessarily touch on the issues respecting the propriety of their disaffiliation and the legality of the establishment of REUBP issues that are outside the scope of their jurisdiction. Accordingly, the dismissal of the complaint was validly made, but only with respect to these two respondents.

But Bayer, Lonishen and Amistoso are liable for unfair labor practice. CBA is entered into in order to foster stability and mutual cooperation between labor and capital. An employer should not be allowed to rescind unilaterally its CBA with the duly certified bargaining agent it had previously contracted with, and decide to bargain anew with a different group if there is no legitimate reason for doing so and without first following the proper procedure.

WHEREFORE, the petition for review on certiorari is PARTLY GRANTED. MODIFIED as follows: 1)Respondents Bayer Phils., Dieter J. Lonishen and Asuncion Amistoso are found LIABLE for Unfair Labor Practice, and are hereby ORDERED to remit to petitioners P254,857.15 representing the collected union dues previously turned over to Avelina Remigio and Anastacia Villareal; and 2)The complaint, as against respondents Remigio and Villareal is DISMISSED due to the lack of jurisdiction of the Labor Arbiter and the NLRC, the complaint being in the nature of an intraunion dispute.

ATTY. ALLAN S. MONTAO, petitioner, vs. ATTY. ERNESTO C. VERCELES , respondent. FACTS:

Atty. Montao: legal assistant of FFW Legal Center on October 1, 1994; joined the union of rank-and-file employees, the FFW Staff Association July 1997: Employees' union president November 1998: officer-in-charge of FFW Legal Center 21st National Convention and Election of National Officers of FFW (March 2001): Atty. Montao was nominated for the position of National Vice-President. However, the Commission on Election (FFW COMELEC), informed him that he is not qualified because his candidacy violates the 1998 FFW Constitution and By-Laws Atty. Montao thus filed an Urgent Motion for Reconsideration: for his name to be included in the official list May 26-27, 2001: Election was held at Subic International Hotel, Olongapo City Despite the pending motion for reconsideration with the FFW COMELEC, and strong opposition and protest of respondent Atty. Ernesto C. Verceles (Atty. Verceles), a delegate to the convention and president of University of the East Employees' Association (UEEA-FFW) which is an affiliate union of FFW, the convention delegates allowed Atty. Montao's candidacy. He emerged victorious and was proclaimed as the National Vice-President. PROCEEDINGS BEFORE BUREAU OF LABOR RELATIONS

- May 28, 2001: Atty. Verceles reiterated his protest over Atty. Montao's candidacy to FFW COMELEC - July 2001: Atty. Verceles, as President of UEEA-FFW and officer of the Governing Board of FFW, filed
before the BLR a petition for the nullification of the election of Atty. Montao as FFW National VicePresident and for injunctive relief.

- Atty.

Montaos contention: Motion to Dismiss on the ground, among others, that the Regional Director of the Department of Labor and Employment (DOLE) and not the BLR has jurisdiction over the case answer to the petition pursuant to the rules. The parties thereafter submitted their respective pleadings and position papers.

- BLRs DECISION: Did not give due course to Atty. Montao's MD but ordered the latter to submit his - BLRs FINAL DECISIN: Dismissed the petition for lack of merit
There were no grounds to hold Atty. Montao unqualified to run. It held that the applicable provision in the FFW Constitution and By-Laws to determine whether one is qualified to run for office is not Section 76 of Article XIX but Section 26 of Article VIII thereof. Also, the convention delegates unanimously decided that Atty. Montao was qualified to run for the position of National Vice-President. Atty. Verceles filed a Motion for Reconsideration but was DENIED. PROCEEDINGS BEFORE COURT OF APPEALS

Atty. Verceles on appeal to CA: CA set aside the BLR's Decision These are the grounds: (1) While it agreed that jurisdiction was properly lodged with the BLR, (2) that Atty. Verceles has legal standing to institute the petition, and (3) that the applicable provision of FFW Constitution and By-Laws is Section 26 of Article VIII and not Section 76 of Article XIX, the CA however ruled that Atty. Montao did not possess the qualification requirement under paragraph (d) of Section 26 that candidates must be an officer or member of a legitimate labor organization. He is only considered a confidential employee, and consequently, ineligible to join FFW Staff Association, the rank-and-file union of FFW. Atty. Montaos contentions: CA seriously because the FFW Staff Association, of which he is an officer and member, is not a legitimate labor organization. He asserted that the legitimacy of the union was never raised as an issue CAs DECISION: DENIED BOTH Atty. Montao's motion for reconsideration and FFW Staff Association's motion for intervention/clarification (led by Pres. Danilo Laserna).

ISSUE: WoN the CA erred in upholding the exercise of jurisdiction by herein respondent Bureau and in not ordering the dismissal of the case, despite express provision of law granting said jurisdiction over cases involving protests and petitions for annulment of results of elections to the Regional Directors of the Dept. of Labor and Employment. HELD:

The petition is devoid of merit: BLR has jurisdiction over intra-union disputes involving a federation. Section 226 of the Labor Code clearly provides that the BLR and the Regional Directors of DOLE have concurrent jurisdiction over inter-union and intra-union disputes. Such disputes include the conduct or nullification of election of union and workers' association officers. Rule XVI of Book V of the Omnibus Rules Implementing the Labor Code lays down the decentralized intra-union dispute settlement mechanism. Section 1 states that any complaint in this regard 'shall be filed in the Regional Office where the union is domiciled.' (Domicile = place where the union seeks to operate or has established a geographical presence for purposes of collective bargaining or for dealing with employers concerning terms and conditions of employment.) The matter of venue becomes problematic when the intra-union dispute involves a federation, because the geographical presence of a federation may encompass more than one administrative region. Pursuant to its authority under Article 226, this Bureau exercises original jurisdiction over intraunion disputes involving federations. It is well-settled that FFW, having local unions all over the country, operates in more than one administrative region. Therefore, this Bureau maintains original and exclusive jurisdiction over disputes arising from any violation of or disagreement over any provision of its constitution and by-laws.

SCs RULING: Atty. Montao is NOT qualified to run for the position but NOT for failure to meet the requirement specified under Section 26 (d) of Article VIII of FFW Constitution and By-Laws, BUT BECAUSE of the proscription in the FFW Constitution and By-Laws on federation employees from sitting in its Governing Board. Accordingly, the election of Atty. Montao as FFW Vice-President is null and void.

DIOKNO v. CACDAC July 4, 2007 Facts: FLAMES (First Line Association of Meralco Supervisory Employees), the Supervisor's Union for MERALCO, held a Union Election. It formed its own COMELEC for the purpose of conducting fair elections, with Dante Tong as its Chairman. Jimmy Ong and others filed their certificates of candidacy (CoC). But these were rejected by the COMELEC on the ground that Ong was not a member of FLAMES, and that the others were confidential employees.

Another group, that of Edgardo Daya, also filed their CoCs. Other members of FLAMES petitioned the COMELEC to have them disqualified. The COMELEC disqualified Daya on the ground that they were committing acts of disloyalty which are inimical to the interest FLAMES, as provided for in their Constitution and By-Laws (CBL). It was alleged that, in their campaign, they had solicited support from non-union members, particularly from officers of the MEMABA and the MESALA. The union elections proceeded, then COMELEC declared Diokno and other petitioners as the new President, etc. of FLAMES. Ong's group filed a petition to annul the COMELEC's Order rejecting their CoCs. Daya's group likewise filed their petition to annul their disqualification, to nullify the election proceedings and counting of votes, to declare a failure of election, and to declare the holding of a new election to be controlled and supervised by the DOLE. And yet another group, that of Gaudencio Jimenez, filed anotherpetition alleging that the union elections were not free, orderly and peaceful. All of these petitions were filed separately before the Med-Arb Unit of the DOLE, and were subsequently consolidated. Meanwhile, a new election was held, this time with Daya's group participating. Eventually, the CA upheld the validity of the new elections, and the declaration of Daya's group as the duly elected winners. The Med-Arb ruled that Ong's petition was rendered moot and academic, and that Jimenez's petition was premature for non-exhaustion of administrative remedies within the COMELEC. With respect to Daya's petition, the Med-Arb ruled that Daya's disqualification was improper because it was not supported by substantial evidence, and that the grounds used by the COMELEC as a basis for disqualifying Daya, Art. IV, Sec. 4(a)(6) of the FLAMES CBL, actually referred to the grounds for Expulsion of a member from the union, and not Disqualification from the election. In all cases, the Med-Arb asserted its jurisdiction. The BLR and the CA affirmed the Med-Arb's decision. Diokno and his group argued that the Med-Arb was without jurisdiction over the disputes, because Art. 226 which grants power to the BLR to resolve inter- and intra-union disputes is dead law, and has been amended by Sec. 14, RA 6715 whereby the conciliation, mediation and voluntary arbitration functions of the BLR had been transferred to the NCMB. They also contended that the COMELEC had the sole and exclusive power to rule upon the qualification of any candidate, and therefore it has the correlative power to disqualify any candidate in accordance with its guidelines. Issue: Whether or not the BLR has jurisdiction. Held: Yes. Sec. 14, RA 6715 did not repeal the jurisdiction of the BLR. It only added the clause The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by agreement of the parties. The BLR has original and exclusive jurisdiction on all inter-union and intra-union conflicts. Since Art. 226 has declared that the BLR shall have original and exclusive authority to act on all inter-union and intra-union conflicts, there should be no more doubt as to its jurisdiction. As defined, an intra-union conflict would refer to a conflict within or inside a labor union, while an interunion conflict is one occuring or carried on between or among unions. The controversy in the case at bar is an intra-union dispute. There is no question that this is one which involves a dispute within or inside FLAMES, a labor union. At issue is the propriety of the disqualification of Daya by the FLAMES COMELEC in the unionelections.

It must also be stressed that even as the dispute involves allegations that Daya sought the help of non-union members in their election campaign, the same does not detract from the real character of the controversy. It remains as one which involves the grievance over the CBL of a union, and it is a controversy involving members of the union.

MAGBANUA V. UY G.R. No. 161003. May 6, 2005 Facts: As a final consequence of the final and executory decision of the Supreme Court which affirmed with modification the decision of the NLRC, hearings were conducted to determine the amount of wage differentials due the eight petitioners. The petitioners filed a Motion for Issuance of Writ of Execution. Rizalino Uy filed a Manifestation requesting that the cases be terminated and closed, stating that the judgment award as computed had been complied with to the satisfaction of petitioners. Said Manifestation was also signed by the eight petitioners. Together with the manifestation is a Joint Affidavit dated May 5, 1997 of petitioners, attesting to the receipt of payment from respondent and waiving all other benefits due them in connection with their complaint. On October 20, 1997, six of the eight petitioners filed a Manifestation requesting that the cases be considered closed and terminated as they are already satisfied of what they have received from respondent. Together with said Manifestation is a Joint Affidavit in the local dialect, of the six petitioners attesting that they have no more collectible amount from respondent and if there is any, they are abandoning and waiving the same. Issues: 1. Whether or not the final and executory judgment of the Supreme Court could be subject to compromise settlement; 2. Whether or not the petitioners affidavit waiving their awards in the labor case executed without the assistance of their counsel and labor arbiter is valid. Held: 1. There is no justification to disallow a compromise agreement, solely because it was entered into after final judgment. The validity of the agreement is determined by compliance with the requisites and principles of contracts, not by when it was entered into. Petitioners voluntarily entered into the compromise agreement. Circumstances also reveal that respondent has already complied with its obligation pursuant to the compromise agreement. Having already benefited from the agreement, estoppel bars petitioners from challenging it. 2. The presence or the absence of counsel when a waiver is executed does not determine its validity. There is no law requiring the presence of a counsel to validate a waiver. The test is whether it was executed voluntarily, freely and intelligently; and whether the consideration for it was credible and reasonable. Where there is clear proof that a waiver was wangled from an unsuspecting or a gullible person, the law must step in to annul such transaction. In the present case, petitioners failed to present any evidence to show that their consent had been vitiated.

SOLOMON ET AL. V. POWERTECH CORP JANUARY 22, 2008 Facts: The case stems from a complaint for illegal dismissal and other money claims filed by the Nagkakaisang Manggagawa Ng Powertech Corporation in behalf of its 52 individual members and nonunion members against their employer, Powertech. The case was dismissed as to twenty-seven (27) employees by virtue of duly executed affidavits of repudiation and quitclaim. The case proceeded with respect to the remaining twenty-five (25) employees, petitioners in this case.

On June 25, 1999, Labor Arbiter Renell Joseph R. Dela Cruz rendered a Decision declaring illegal the termination of twenty (20) of petitioners and granting their monetary claims in the total amount of P2,538,728.84. Powertech appealed to the NLRC. During its pendency, Carlos Gestiada, for himself and on behalf of other petitioners, executed a quitclaim, release and waiver in favor of Powertech in consideration of the amount of P150,000.00. Earlier, Gestiada was appointed by his co-petitioners as their attorney-infact. The appointment was evidenced by a special power of attorney dated October 8, 1999. The compromise amount was paid to Gestiada by check. On March 15, 2000, Gestiada terminated the services of their counsel, Atty. Evangelista and, instead, retained Atty. Manuel Luis Felipe of the Public Attorneys Office. Powertech paid P150,000.00 to Gestiada purportedly as compromise amount for all of petitioners. That same day, Gestiada, through Atty. Felipe, and Powertech filed a joint motion to dismiss with the NLRC based on the compromise agreement. Atty. Evangelista opposed the motion, alleging that the compromise agreement is unconscionable, that he was illegally terminated as counsel for the other petitioners without their consent, and that the P150,000.00 was received by Gestiada as payment solely for his backwages and other monetary claims. Issue: Whether or not the Compromise Agreement between Gestiada and Powertech Corp was valid and whether NLRC properly assumed jurisdiction over the issue Held: Compromise Agreement is invalid. NLRC properly assumed jurisdiction. First, the P150,000 compromise is rather measly when taken in light of the more than P2.5 million judgment on appeal to the NLRC. Petitioners already won on the arbiter level P2.5 million pesos. It is highly improbable that they would suddenly agree to accept P150,000 as compromise for the P2.5 million. We contrast the monetary judgment to the P150,000.00 received by Gestiada, which appears to be his share in the P2.5 million based on the calculation of the NLRC. We find no plausible reason to disbelieve his claim that the sum represents payment solely of his backwages. Second, even granting for the mere sake of argument that the P150,000 was a fair and reasonable compromise for all, petitioners failed to receive a single centavo from the compromise. This conclusively indicates that Gestiada received the P150,000 in payment of his backwages and no other. Third, We give credence to the admission of Gestiada that he received the P150,000.00 as payment for his own backwages. In his letter to Atty. Evangelista, Gestiada said that he was pressured by Powertech to sign the waiver and quitclaim for petitioners in order to receive his share in the P2.5 million judgment. Having no stable job after his dismissal, Gestiada had no other choice but to breach his fiduciary obligation to petitioners. He succumbed to the pressure of Powertech in signing the waiver, release and quitclaim in exchange for the P150,000.00. In short, he colluded with Powertech to the detriment of petitioners. Fourth, the events that led to the execution of the compromise agreement show that Powertech was negotiating in bad faith. More importantly, they show that Powertech colluded with Gestiada to defraud petitioners of their share of the P2.5 million Labor Arbiter judgment. To give effect to the collusion, Gestiada had to get rid of Atty. Evangelista, who had previously succeeded in nullifying the compromise agreement. He fired Atty. Evangelista without cause basing his dismissal on his plenary authority as agent of petitioners. He then procured the services of another lawyer, Atty. Felipe. All these circumstances indicate that the P150,000.00 was received by Gestiada solely as payment for his backwages and not a whit of a settlement for the monetary claim of petitioners.

Collusion is a species of fraud. Article 227 of the Labor Code empowers the NLRC to void a compromise agreement for fraud, thus: Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion.

PHILIPPINE JOURNALISTS INC V. NLRC SEPTEMBER 5, 2006 Facts: The Philippine Journalists, Inc. (PJI) is a domestic corporation engaged in the publication and sale of newspapers and magazines. The exclusive bargaining agent of all the rank-and-file employees in the company is the Journal Employees Union (Union for brevity). Sometime in April 2005, the Union filed a notice of strike before the National Conciliation and Mediation Board (NCMB), claiming that PJI was guilty of unfair labor practice. PJI was then going to implement a retrenchment program due to "over-staffing or bloated work force and continuing actual losses sustained by the company for the past three years resulting in negative stockholders equity of P127.0 million." The Secretary of the Department of Labor and Employment (DOLE) certified 4 the labor dispute to the National Labor Relations Commission (NLRC) for compulsory arbitration. The parties were required to submit their respective position papers. PJI filed a motion to dismiss, contending that the Secretary of Labor had no jurisdiction to assume over the case and thus erred in certifying it to the Commission. The NLRC denied the motion. PJI, thereafter, filed a Motion to Defer Further Proceedings, alleging, among others, that the filing of its position paper might jeopardize attempts to settle the matter extrajudicially, which the NLRC also denied. The case was, thereafter, submitted for decision. In its Resolution6 dated May 31, 2001, the NLRC declared that the 31 complainants were illegally dismissed and that there was no basis for the implementation of petitioner's retrenchment program . Thereafter, the parties executed a Compromise Agreement 8 dated July 9, 2001, where PJI undertook to reinstate the 31 complainant-employees effective July 1, 2001 without loss of seniority rights and benefits; 17 of them who were previously retrenched were agreed to be given full and complete payment of their respective monetary claims, while 14 others would be paid their monetary claims minus what they received by way of separation pay. The agreement stated that the parties entered the agreement "[i]n a sincere effort at peace and reconciliation as well as to jointly establish a new era in labor management relations marked by mutual trust, cooperation and assistance, enhanced by open, constant and sincere communication with a view of advancing the interest of both the company and its employees." However, despite the compromise agreement, the Union claimed that 29 employees were illegally dismissed from employment, and that the salaries and benefits 14 of 50 others had been illegally reduced.15 After the retrenchment program was implemented, 200 Union members-employees who continued working for petitioner had been made to sign five-month contracts. The Union also alleged that the company, through its legal officer, threatened to dismiss some 200 union members from employment if they refused to conform to a 40% to 50% salary reduction; indeed, the 29 employees who refused to accede to these demands were dismissed on June 28, 2002. The Union prayed that the dismissed employees be reinstated with payment of full backwages and all other benefits or their monetary equivalent from the date of their dismissal on July 3, 2002 up to the actual date of reinstatement; and that the CBA benefits (as of November 2002) of the 29 employees and 50 others be restored.

Issue: Whether or not the union can appeal to the NLRC over the issue of the 29 dismissed employees even after the compromise agreement between the petitioner and the union since compromise agreement is considered as res judicata thus the issue may not be reopened by the NLRC Held: Yes the union may appeal the case despite the compromise agreement. The NLRC obtained jurisdiction over the said controvery. The nature of a compromise is spelled out in Article 2028 of the New Civil Code: it is "a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced." Parties to a compromise are motivated by "the hope of gaining, balanced by the dangers of losing."26 It contemplates mutual concessions and mutual gains to avoid the expenses of litigation, or, when litigation has already begun, to end it because of the uncertainty of the result. 27 Article 227 of the Labor Code of the Philippines authorizes compromise agreements voluntarily agreed upon by the parties, in conformity with the basic policy of the State "to promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes." Under Article 2037 of the Civil Code, "a compromise has upon the parties the effect and authority of res judicata," even when effected without judicial approval; and under the principle of res judicata, an issue which had already been laid to rest by the parties themselves can no longer be relitigated. The Court went on to state that a judgment approving a compromise agreement cannot have the effect of res judicata upon non-signatories since the requirement of identity of parties is not satisfied. A judgment upon a compromise agreement has all the force and effect of any other judgment, and, conclusive only upon parties thereto and their privies, hence, not binding on third persons who are not parties to it. A careful perusal of the wordings of the compromise agreement will show that the parties agreed that the only issue to be resolved was the question of the monetary claim of several employees. To reiterate, the rule is that when judgment is rendered based on a compromise agreement, the judgment becomes immediately executory, there being an implied waiver of the parties' right to appeal from the decision.43 The judgment having become final, the Court can no longer reverse, much less modify it.

COLLEGIO DE SAN JUAN DE LETRAN v. ASSOCIATION OF EMPLOYEES AND FACULTY OF LETRAN ET AL. SEPTEMBER 18, 2000 Facts: On December 1992, Salvador Abtria, then President of respondent union, Association of Employees and Faculty of Letran, initiated the renegotiation of its Collective Bargaining Agreement with petitioner Colegio de San Juan de Letran for the last two (2) years of the CBA's five (5) year lifetime from 19891994. On the same year, the union elected a new set of officers wherein private respondent Eleanor Ambas emerged as the newly elected President. Ambas wanted to continue the renegotiation of the CBA but petitioner, through Fr. Edwin Lao, claimed that the CBA was already prepared for signing by the parties. The parties submitted the disputed CBA to a referendum by the union members, who eventually rejected the said CBA.

On January 18, 1996, the parties agreed to disregard the unsigned CBA and to start negotiation on a new five-year CBA starting 1994-1999. On February 7, 1996, the union submitted its proposals to

petitioner, which notified the union six days later or on February 13, 1996 that the same had been submitted to its Board of Trustees. In the meantime, Ambas was informed through a letter dated February 15, 1996 from her superior that her work schedule was being changed from Monday to Friday to Tuesday to Saturday. Ambas protested and requested management to submit the issue to a grievance machinery under the old CBA. Due to petitioner's inaction, the union filed a notice of strike on March 13, 1996. The parties met on March 27, 1996 before the NCMB to discuss the ground rules for the negotiation. On March 29, 1996, the union received petitioner's letter dismissing Ambas for alleged insubordination. Hence, the union amended its notice of strike to include Ambas' dismissal. On April 20, 1996, both parties again discussed the ground rules for the CBA renegotiation. However, petitioner stopped the negotiations after it purportedly received information that a new group of employees had filed a petition for certification election. Issue: Whether or not the petitioners could stop the negotiations on the ground of receiving information that a new group of employees filed a petition for certification election Held: No. Petitioner claims that the suspension of negotiation was proper since by the filing of the petition for certification election the issue on majority representation of the employees has arose. According to petitioner, the authority of the union to negotiate on behalf of the employees was challenged when a rival union filed a petition for certification election. Citing the case of Lakas Ng Manggagawang Makabayan v. Marcelo Enterprises, petitioner asserts that in view of the pendency of the petition for certification election, it had no duty to bargain collectively with the union. We disagree. In order to allow the employer to validly suspend the bargaining process there must be a valid petition for certification election raising a legitimate representation issue. Hence, the mere filing of a petition for certification election does not ipso facto justify the suspension of negotiation by the employer. The petition must first comply with the provisions of the Labor Code and its Implementing Rules. Foremost is that a petition for certification election must be filed during the sixty-day freedom period. The "Contract Bar Rule" under Section 3, Rule XI, Book V, of the Omnibus Rules Implementing the Labor Code, provides that: " . If a collective bargaining agreement has been duly registered in accordance with Article 231 of the Code, a petition for certification election or a motion for intervention can only be entertained within sixty (60) days prior to the expiry date of such agreement." The rule is based on Article 232, in relation to Articles 253, 253-A and 256 of the Labor Code. No petition for certification election for any representation issue may be filed after the lapse of the sixty-day freedom period. The old CBA is extended until a new one is signed. The rule is that despite the lapse of the formal effectivity of the CBA the law still considers the same as continuing in force and effect until a new CBA shall have been validly executed. Hence, the contract bar rule still applies. The purpose is to ensure stability in the relationship of the workers and the company by preventing frequent modifications of any CBA earlier entered into by them in good faith and for the stipulated original period. In the case at bar, the lifetime of the previous CBA was from 1989-1994. The petition for certification election by ACEC, allegedly a legitimate labor organization, was filed with the Department of Labor and Employment (DOLE) only on May 26, 1996. Clearly, the petition was filed outside the sixty-day freedom period. Hence, the filing thereof was barred by the existence of a valid and existing collective bargaining agreement. Consequently, there is no legitimate representation issue and, as such, the filing of the petition for certification election did not constitute a bar to the ongoing negotiation. Reliance, therefore, by petitioner of the ruling in Lakas Ng Manggagawang Makabayan v. Marcelo Enterprises is misplaced since that case involved a legitimate representation issue which is not present in the case at bar. Moreover, Petitioner's utter lack of interest in bargaining with the union is obvious in its failure to make a timely reply to the proposals presented by the latter. More than a month after the proposals were

submitted by the union, petitioner still had not made any counter-proposals. This inaction on the part of petitioner prompted the union to file its second notice of strike on March 13, 1996. Petitioner could only offer a feeble explanation that the Board of Trustees had not yet convened to discuss the matter as its excuse for failing to file its reply. This is a clear violation of Article 250 of the Labor Code governing the procedure in collective bargaining, Art. 250. Procedure in collective bargaining. - The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. Mariwasa Siam Ceramics Inc vs. Sec. of Labor G.R. No. 183317 December 21, 2009 Facts: Respondent Samahan Ng Mga Manggagawa Sa Mariwasa Siam Ceramics, Inc. (SMMSC-Independent) was issued a Certificate of Registration as a legitimate labor organization by DOLE Region IV-A. Petitioner Mariwasa Siam Ceramics, Inc. filed a Petition for Cancellation of Union Registration against respondent, claiming that the latter violated Article 234 of the Labor Code for not complying with the 20% requirement, and that it committed massive fraud and misrepresentation in violation of Article 239 of the same code. Regional Director of DOLE IV-A issued an Order granting the petition, revoking the registration of respondent, and delisting it from the roster of active labor unions. Aggrieved, respondent appealed to the Bureau of Labor Relations. BLR ruled in favor of the respondent saying that respondent remains in the roster of legitimate labor organizations. CA also dismissed the appeal. Petitioner insists that respondent failed to comply with the 20% union membership requirement for its registration as a legitimate labor organization because of the disaffiliation from the total number of union members of 102 employees who executed affidavits recanting their union membership. Issue: Whether or not respondent union complied with the 20% membership requirement. Held: Respondent union complied. Even assuming the veracity of the affidavits of recantation, the legitimacy of respondent as a labor organization must be affirmed. While it is true that the withdrawal of support may be considered as a resignation from the union, the fact remains that at the time of the unions application for registration, the affiants were members of respondent and they comprised more than the required 20% membership for purposes of registration as a labor union. Article 234 of the Labor Code merely requires a 20% minimum membership during the application for union registration. It does not mandate that a union must maintain the 20% minimum membership requirement all throughout its existence. The total union membership at the time of registration was 169. Since the total number of rank-and-file employees at that time was 528, 169 employees would be equivalent to 32% of the total rank-and-file workers complement, still very much above the minimum required by law. For the purpose of de-certifying a union such as respondent, it must be shown that there was 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; or, in connection with the election of officers, the minutes of the election of officers, the list of voters, or failure to submit these documents together with the list of the newly elected-appointed officers and their postal addresses to the BLR. And for fraud and misrepresentation to be grounds for cancellation of union registration under the Labor Code, the nature of the fraud and misrepresentation must be grave and compelling enough to vitiate the consent of a majority of union members.

Electromat Manufacturing and Recording Corp vs. Lagunzad GR No. 172699 July 27, 2011 Facts: The private respondent Nagkakaisang Samahan ng Manggagawa ng Electromat-Wasto (union), a charter affiliate of the Workers Advocates for Struggle, Transformation and Organization (WASTO), applied for registration with the Bureau of Labor Relations (BLR). Supporting the application were the following documents: (1) copies of its ratified constitution and by-laws (CBL); (2) minutes of the CBLs adoption and ratification; (3) minutes of the organizational meetings; (4) names and addresses of the union officers; (5) list of union members; (6) list of rank-and-file employees in the company; (7) certification of non-existence of a collective bargaining agreement (CBA) in the company; (8) resolution of affiliation with WASTO, a labor federation; (9) WASTOs resolution of acceptance; (10) Charter Certificate; and (11) Verification under oath. BLR thereafter issued the union a Certification of Creation of Local Chapter (equivalent to the certificate of registration of an independent union) pursuant to Department Order No. (D.O.) 40-03. Petitioner Electromat Manufacturing and Recording Corporation (company) filed a petition for cancellation of the unions registration certificate, for the unions failure to comply with Article 234 of the Labor Code. It argued that D.O. 40-03 is an unconstitutional diminution of the Labor Codes union registration requirements under Article 234. Both DOLE and BLR dismissed the companys appeal. Petitioner assails as unconstitutional Section 2(E), Rule III of D.O. 40-03 which provides: The report of creation of a chartered local shall be accompanied by a charter certificate issued by the federation or national union indicating the creation or establishment of the chartered local. The company points out that D.O. 40-03 delisted some of the requirements under Article 234 of the Labor Code for the registration of a local chapter. It contends that the enumeration of the requirements for union registration under the law is exclusive and should not be diminished, and that the same requirements should apply to all labor unions whether they be independent labor organizations, federations or local chapters. It adds that in making a different rule for local chapters, D.O. 40-03 expanded or amended Article 234 of the Labor Code, resulting in an invalid exercise by the DOLE of its delegated rule-making power. It thus posits that the unions certificate of registration which was issued in violation of the letters of Article 234 of the Labor Code is void and of no effect, Issue: Whether or not said D.O. is a valid exercise of the rule-making power of DOLE even if some requirements of Art. 234 are not listed. Held: It is valid. The Court encountered a similar question in an earlier case which it said that by force of law, the local or chapter of a labor federation or national union becomes a legitimate labor organization upon compliance with Section 3, Rule II, Book V of the Rules Implementing the Labor Code, the only requirement being the submission of the charter certificate to the BLR. Further, the Court noted that Section 3 omitted several requirements which are otherwise required for union registration. Notwithstanding these omissions, the Court upheld the governments implementing policy expressed in the old rules when it declared in said earlier case Undoubtedly, the intent of the law in imposing lesser requirements in the case of a branch or local of a registered federation or national union is to encourage the affiliation of a local union with a federation or national union in order to increase the local unions bargaining powers respecting terms and conditions of labor. It was this same Section 3 of the old rules that D.O. 40-03 fine-tuned when the DOLE amended the rules on Book V of the Labor Code, thereby modifying the governments implementing policy on the registration of locals or chapters of labor federations or national unions. D.O. 40-03 represents an expression of the governments implementing policy on trade unionism. It builds upon the old rules by further simplifying the requirements for the establishment of locals or chapters. As in D.O. 9, we see nothing contrary to the law or the Constitution in the adoption by the

Secretary of Labor and Employment of D.O. 40-03 as this department order is consistent with the intent of the government to encourage the affiliation of a local union with a federation or national union to enhance the locals bargaining power. If changes were made at all, these were those made to recognize the distinctions made in the law itself between federations and their local chapters, and independent unions; local chapters seemingly have lesser requirements because they and their members are deemed to be direct members of the federation to which they are affiliated, which federations are the ones subject to the strict registration requirements of the law. EAGLE RIDGE GOLF & COUNTRY CLUB vs. COURT OF APPEALS and EAGLE RIDGE EMPLOYEES UNION (EREU) G.R. No. 178989 March 18, 2010 FACTS: Petitioner Eagle Ridge is a corporation engaged in the business of maintaining golf courses. It had, at the end of CY 2005, around 112 rank-and-file employees. On December 6, 2005, at least 20% of Eagle Ridges rank-and-file employeesthe percentage threshold required under Article 234(c) of the Labor Code for union registrationhad a meeting where they organized themselves into an independent labor union, named "Eagle Ridge Employees Union" (EREU or Union), elected a set of officers, and ratified their constitution and by-laws. On December 19, 2005, EREU formally applied for registration before the Department of Labor and Employment (DOLE) Regional Office IV (RO IV). In time, DOLE RO IV granted the application. The EREU then filed a petition for certification election in Eagle Ridge Golf & Country Club. Eagle Ridge opposed this petition, followed by its filing of a petition for the cancellation of the application. Eagle Ridges petition ascribed misrepresentation, false statement, or fraud to EREU in connection with the adoption of its constitution and by-laws, the numerical composition of the Union, and the election of its officers. Petitioner alleged that the EREU declared in its application for registration having 30 members, when the minutes of its December 6, 2005 organizational meeting showed it only had 26 members. The misrepresentation was exacerbated by the discrepancy between the certification issued by the Union secretary and president that 25 members actually ratified the constitution and by-laws on December 6, 2005 and the fact that 26 members affixed their signatures on the documents, making one signature a forgery. Finally, petitioner contended that five employees who attended the organizational meeting had manifested the desire to withdraw from the union. The five executed individual affidavits or Sinumpaang Salaysay on February 15, 2006, attesting that they arrived late at said meeting which they claimed to be drinking spree; that they did not know that the documents they signed on that occasion pertained to the organization of a union; and that they now wanted to be excluded from the Union. The withdrawal of the five, Eagle Ridge maintained, effectively reduced the union membership to 20 or 21, either of which is below the mandatory minimum 20% membership requirement under Art. 234(c) of the Labor Code. Reckoned from 112 rank-and-file employees of Eagle Ridge, the required number would be 22 or 23 employees. As a counterpoint, EREU alleged that discrepancies are not real for before filing of its application on December 19, 2005, four additional employees joined the union on December 8, 2005, thus raising the union membership to 30 members as of December 19, 2005; that the understatement by one member who ratified the constitution and by-laws was a typographical error, which does not make it either grave or malicious warranting the cancellation of the unions registration; that the retraction of 5 union members should not be given any credence for the reasons that: (a) the sworn statements of the five retracting union members sans other affirmative evidence presented hardly qualify as clear and credible evidence considering the joint affidavits of the other members attesting to the orderly conduct of the organizational meeting; (b) the retracting members did not deny signing the union documents; (c) it can be presumed that "duress, coercion or valuable consideration" was brought to bear on the retracting members; and (d) once the required percentage requirement has been reached, the employees withdrawal from union membership taking place after the filing of the petition for certification election will not affect the petition. After due proceedings, the DOLE Regional Director, focusing on the question of misrepresentation, issued an Order finding for Eagle Ridge. Aggrieved, the Union appealed to the BLR, which affirmed the

appealed order of the DOLE Regional Director. Undeterred by successive set backs, EREU interposed a motion for reconsideration which was granted. Eagle Ridge sought but was denied reconsideration. Eagle Ridge thereupon went to the CA, which dismissed the petition for certiorari. The CA later denied Eagle Ridges motion for reconsideration, hence the recourse with the SC. ISSUE: Whether there was fraud in the application to merit the cancellation of the EREUs registration HELD: NO, a scrutiny of the records fails to show any misrepresentation, false statement, or fraud committed by EREU to merit cancellation of its registration. The Supreme Court succinctly explained this decision in eight points: First. The Union submitted the required documents attesting to the facts of the organizational meeting on December 6, 2005, the election of its officers, and the adoption of the Unions constitution and bylaws. Second. The members of the EREU totaled 30 employees when it applied on December 19, 2005 for registration. The Union thereby complied with the mandatory minimum 20% membership requirement under Art. 234(c). Of note is the undisputed number of 112 rank-and-file employees in Eagle Ridge, as shown in the Sworn Statement of the Union president and secretary and confirmed by Eagle Ridge in its petition for cancellation. Third. The Union has sufficiently explained the discrepancy between the number of those who attended the organizational meeting showing 26 employees and the list of union members showing 30. The difference is due to the additional four members admitted two days after the organizational meeting as attested to by their duly accomplished Union Membership form. Fourth. In its futile attempt to clutch at straws, Eagle Ridge assails the inclusion of the additional four members allegedly for not complying with what it termed as "the sine qua non requirements" for union member applications under the Unions constitution and by-laws, specifically Sec. 2 of Art. IV. We are not persuaded. Any seeming infirmity in the application and admission of union membership, most especially in cases of independent labor unions, must be viewed in favor of valid membership. The right of employees to self-organization and membership in a union must not be trammeled by undue difficulties. In this case, when the Union said that the four employee-applicants had been admitted as union members, it is enough to establish the fact of admission of the four that they had duly signified such desire by accomplishing the membership form. The fact, as pointed out by Eagle Ridge, that the Union, owing to its scant membership, had not yet fully organized its different committees evidently shows the direct and valid acceptance of the four employee applicants rather than deter their admissionas erroneously asserted by Eagle Ridge. Fifth. The difference between the number of 26 members, who ratified the Unions constitution and bylaws, and the 25 members shown in the certification of the Union secretary as having ratified it, is, as shown by the factual antecedents, a typographical error. It was an insignificant mistake committed without malice or prevarication. The list of those who attended the organizational meeting shows 26 members, as evidenced by the signatures beside their handwritten names. Sixth. In the more meaty issue of the affidavits of retraction executed by six union members, we hold that the probative value of these affidavits cannot overcome those of the supporting affidavits of 12 union members and their counsel as to the proceedings and the conduct of the organizational meeting on December 6, 2005. The DOLE Regional Director and the BLR OIC Director obviously erred in giving credence to the affidavits of retraction, but not according the same treatment to the supporting affidavits. The six affiants of the affidavits of retraction were not presented in a hearing before the Hearing Officer (DOLE Regional Director), as required under the Rules Implementing Book V of the Labor Code covering Labor Relation. It is settled that affidavits partake the nature of hearsay evidence, since they are not generally prepared by the affiant but by another who uses his own language in writing the

affiants statement, which may thus be either omitted or misunderstood by the one writing them. For their non-presentation and consonant to the above-quoted rule, the six affidavits of retraction are inadmissible as evidence against the Union in the instant case. Seventh. The fact that six union members, indeed, expressed the desire to withdraw their membership through their affidavits of retraction will not cause the cancellation of registration on the ground of violation of Art. 234(c) of the Labor Code requiring the mandatory minimum 20% membership of rankand-file employees in the employees union. The six retracting union members clearly severed and withdrew their union membership. The query is whether such separation from the Union can detrimentally affect the registration of the Union. We answer in the negative. Twenty percent (20%) of 112 rank-and-file employees in Eagle Ridge would require a union membership of at least 22 employees (112 x 205 = 22.4). When the EREU filed its application for registration on December 19, 2005, there were clearly 30 union members. Thus, when the certificate of registration was granted, there is no dispute that the Union complied with the mandatory 20% membership requirement. With the withdrawal of six union members, there is still compliance with the mandatory membership requirement under Art. 234(c), for the remaining 24 union members constitute more than the 20% membership requirement of 22 employees. Eighth. Finally, it may not be amiss to note, given the factual antecedents of the instant case, that Eagle Ridge has apparently resorted to filing the instant case for cancellation of the Unions certificate of registration to bar the holding of a certification election. This can be gleaned from the fact that the grounds it raised in its opposition to the petition for certification election are basically the same grounds it resorted to in the instant case for cancellation of EREUs certificate of registration. This amounts to a clear circumvention of the law and cannot be countenanced.

TAGAYTAY HIGHLANDS INTERNATIONAL GOLF CLUB INC v. TAGAYTAY HIGHLANDS EMPLOYEES UNION-PGTWO 395 SCRA 699 January 22, 2003 The Supreme Court ruled that the effect of issuance of certificate of registration to a union is that it becomes legitimate and its legal personality can only be attacked through a petition for cancellation of registration and not thru intervention in a certification election petition. FACTS: On October 16, 1997, the Tagaytay Highlands Employees Union (THEU)Philippine Transport and General Workers Organization (PTGWO), Local Chapter No. 776, a legitimate labor organization said to represent majority of the rank-and-file employees of Tagaytay Highlands International Golf Club Incorporated (THIGCI), filed a petition for certification election before the DOLE Mediation-Arbitration Unit, Regional Branch No. IV. THIGCI, in its Comment, opposed THEUs petition for certification election on the ground that the list of union members submitted by it was defective and fatally flawed as it included the names and signatures of supervisors, resigned, terminated and absent without leave (AWOL) employees, as well as employees of The Country Club, Inc., a corporation distinct and separate from THIGCI; and that out of the 192 signatories to the petition, only 71 were actual rank-and-file employees of THIGCI. THIGCI thus submitted a list of the names of its 71 actual rank-and-file employees to the petition for certification election. And it therein incorporated a tabulation showing the number of signatories to said petition whose membership in the union was being questioned as disqualified and the reasons for disqualification. THEU asserted that it complied with all the requirements for valid affiliation and inclusion in the roster of legitimate labor organizations pursuant to DOLE Department Order No. 9, series of 1997, on account of which it was duly granted a Certification of Affiliation by DOLE on October 10, 1997; and that Section 5, Rule V of said Department Order provides that the legitimacy of its registration cannot be subject to collateral attack, and for as long as there is no final order of cancellation, it continues to enjoy the rights accorded to a legitimate organization. Therefore, the Med-Arbiter should, pursuant to Article 257 of the Labor Code and Section 11, Rule XI of DOLE Department Order No. 09, automatically order the conduct of a certification election. On January 28, 1998, DOLE Med-Arbiter Anastacio Bactin ordered the holding of a certification election. THIGCI appealed to the Office of the DOLE Secretary which, by Resolution of June 4, 1998, set aside the said Med-Arbiters Order and accordingly dismissed the petition for certification election on the ground that there is a "clear absence of community or mutuality of interests," it finding that THEU sought to represent two separate bargaining units (supervisory employees and rank-and-file employees) as well as employees of two separate and distinct corporate entities. Upon Motion for Reconsideration by THEU, DOLE Undersecretary Rosalinda Dimalipis-Baldoz, by authority of the DOLE Secretary, issued DOLE Resolution of November 12, 1998 setting aside the June 4, 1998 Resolution dismissing the petition for certification election. She held that since THEU is a local chapter, the twenty percent (20%) membership requirement is not necessary for it to acquire legitimate status, hence, "the alleged retraction and withdrawal of support by 45 of the 70 remaining rank-and-file members . . . cannot negate the legitimacy it has already acquired before the petition". THIGCIs Motion for Reconsideration was denied by the DOLE Undersecretary hence it filed a petition for certiorari with the CA. The CA denied THIGCIs Petition for Certiorari and affirmed the DOLE Resolution dated November 12, 1998. It held that while a petition for certification election is an exception to the innocent bystander rule, hence, the employer may pray for the dismissal of such petition on the basis of lack of mutuality of interests of the members of the union as well as lack of employer-employee relationship and petitioner failed to adduce substantial evidence to support its allegations. ISSUE: Whether the unions legal personality can be subject to collateral attack after a certificate of registration is issued

HELD: NO, Petition is DENIED, and the records of the case are remanded to the office of origin. While Article 245 expressly prohibits supervisory employees from joining a rank-and-file union, it does not provide what would be the effect if a rank-and-file union counts supervisory employees among its members, or vice-versa. Citing Toyota19 which held that "a labor organization composed of both rankand-file and supervisory employees is no labor organization at all," and the subsequent case of Progressive Development Corp. Pizza Hut v. Ledesma20 which held that: "The Labor Code requires that in organized and unorganized establishments, a petition for certification election must be filed by a legitimate labor organization. The acquisition of rights by any union or labor organization, particularly the right to file a petition for certification election, first and foremost, depends on whether or not the labor organization has attained the status of a legitimate labor organization. In the case before us, the Med-Arbiter summarily disregarded the petitioners prayer that the former look into the legitimacy of the respondent Union by a sweeping declaration that the union was in the possession of a charter certificate so that for all intents and purposes, Sumasaklaw sa Manggagawa sa Pizza Hut (was) a legitimate organization,"21 (Underscoring and emphasis supplied), We also do not agree with the ruling of the respondent Secretary of Labor that the infirmity in the membership of the respondent union can be remedied in "the pre-election conference thru the exclusion-inclusion proceedings wherein those employees who are occupying rank-and-file positions will be excluded from the list of eligible voters." After a certificate of registration is issued to a union, its legal personality cannot be subject to collateral attack. It may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V, Book IV of the "Rules to Implement the Labor Code" (Implementing Rules) which section reads: Sec. 5. Effect of registration. The labor organization or workers association shall be deemed registered and vested with legal personality on the date of issuance of its certificate of registration. Such legal personality cannot thereafter be subject to collateral attack, but may be questioned only in an independent petition for cancellation in accordance with these Rules. (Emphasis supplied) The inclusion in a union of disqualified employees is not among the grounds for cancellation, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) and (c) of Article 239 of above-quoted Article 239 of the Labor Code. THEU, having been validly issued a certificate of registration, should be considered to have already acquired juridical personality which may not be assailed collaterally. As for petitioners allegation that some of the signatures in the petition for certification election were obtained through fraud, false statement and misrepresentation, the proper procedure is, as reflected above, for it to file a petition for cancellation of the certificate of registration, and not to intervene in a petition for certification election. Regarding the alleged withdrawal of union members from participating in the certification election, this Courts following ruling is instructive: "[T]he best forum for determining whether there were indeed retractions from some of the laborers is in the certification election itself wherein the workers can freely express their choice in a secret ballot. Suffice it to say that the will of the rank-and-file employees should in every possible instance be determined by secret ballot rather than by administrative or quasi-judicial inquiry. Such representation and certification election cases are not to be taken as contentious litigations for suits but as mere

investigations of a non-adversary, fact-finding character as to which of the competing unions represents the genuine choice of the workers to be their sole and exclusive collective bargaining representative with their employer." As for the lack of mutuality of interest argument of petitioner, it, at all events, does not lie given, as found by the court a quo, its failure to present substantial evidence that the assailed employees are actually occupying supervisory positions. While petitioner submitted a list of its employees with their corresponding job titles and ranks, there is nothing mentioned about the supervisors respective duties, powers and prerogatives that would show that they can effectively recommend managerial actions which require the use of independent judgment.25 As this Court put it in Pepsi-Cola Products Philippines, Inc. v. Secretary of Labor , Designation should be reconciled with the actual job description of subject employees x x x The mere fact that an employee is designated manager does not necessarily make him one. Otherwise, there would be an absurd situation where one can be given the title just to be deprived of the right to be a member of a union. In the case of National Steel Corporation vs. Laguesma (G. R. No. 103743, January 29, 1996), it was stressed that What is essential is the nature of the employees function and not the nomenclature or title given to the job which determines whether the employee has rank-and-file or managerial status or whether he is a supervisory employee.

SS Ventures International Inc. v. SS Ventures Labor Union July 23, 2008 G.R. 161690 J. Velasco Jr. Facts: On March 21, 2000, the Union filed with DOLE-Region III a petition for certification election in behalf of the rank-and-file employees of Ventures. 542 signatures, 82 of which belong to terminated Ventures employees, appeared on the basic documents supporting the petition. On August 21, 2000, Ventures filed a Petition to cancel the Unions certificate of registration invoking the grounds set forth in Article 239(a) of the Labor Code. The petition alleged the following: (1) The Union deliberately and maliciously included the names of more or less 82 former employees no longer connected with Ventures in its list of members who attended the organizational meeting and in the adoption/ratification of its constitution and by-laws held on January 9, 2000 in Mariveles, Bataan; and the Union forged the signatures of these 82 former employees to make it appear they took part in the organizational meeting and adoption and ratification of the constitution; (2) The Union maliciously twice entered the signatures of three persons namely: Mara Santos, Raymond Balangbang, and Karen Agunos; (3) No organizational meeting and ratification actually took place; and (4) The Unions application for registration was not supported by at least 20% of the rank-andfile employees of Ventures, or 418 of the total 2,197-employee complement. Since more or less 82 of the 500 signatures were forged or invalid, then the remaining valid signatures would only be 418, which is very much short of the 439 minimum (2197 total employees x 20% = 439.4) required by the Labor Code. In its Answer, the Union denied committing the imputed acts of fraud or forgery and alleged that: (1) the organizational meeting actually took place on January 9, 2000 at the Shoe City basketball court in Mariveles; (2) the 82 employees adverted to in Ventures petition were qualified Union members for, although they have been ordered dismissed, the one-year prescriptive period to question their dismissal had not yet lapsed; (3) it had complied with the 20%-member registration requirement since it had 542 members; and (4) the "double" signatures were inadvertent human error. In its supplemental reply memorandum Ventures cited other instances of fraud and misrepresentation, claiming that the "affidavits" executed by 82 alleged Union members show that they were deceived into signing paper minutes or were harassed to signing their attendance in the organizational meeting. Ventures added that some employees signed the "affidavits" denying having attended such meeting. Issue: Whether or not the Certification of Registration of the Union should be revoked

Held: The right to form, join, or assist a union is specifically protected by Art. XIII, Section 3 of the Constitution and such right, according to Art. III, Sec. 8 of the Constitution and Art. 246 of the Labor Code, shall not be abridged. Once registered with the DOLE, a union is considered a legitimate labor organization endowed with the right and privileges granted by law to such organization. While a certificate of registration confers a union with legitimacy with the concomitant right to participate in or ask for certification election in a bargaining unit, the registration may be canceled or the union may be decertified as the bargaining unit, in which case the union is divested of the status of a legitimate labor organization. Among the grounds for cancellation is the commission of any of the acts enumerated in Art. 239(a) of the Labor Code, such as fraud and misrepresentation in connection with the adoption or ratification of the unions constitution and like documents. To decertify a union, it is not enough to show that the union includes ineligible employees in its membership. It must also be shown that there was misrepresentation, false statement, or fraud in connection with the application for registration and the supporting documents, such as the adoption or ratification of the constitution and by-laws or amendments thereto and the minutes of ratification of the constitution or by-laws, among other documents. Essentially, Ventures faults both the BLR and the CA in finding that there was no fraud or misrepresentation on the part of the Union sufficient to justify cancellation of its registration. In this regard, Ventures makes much of, first, the separate hand-written statements of 82 employees who, in gist, alleged that they were unwilling or harassed signatories to the attendance sheet of the organizational meeting. However, as aptly noted by both the BLR and CA, these mostly undated written statements submitted by Ventures on March 20, 2001, or seven months after it filed its petition for cancellation of registration, partake of the nature of withdrawal of union membership executed after the Unions filing of a petition for certification election on March 21, 2000. It was held that the employees withdrawal from a labor union made before the filing of the petition for certification election is presumed voluntary, while withdrawal after the filing of such petition is considered to be involuntary and does not affect the same. Now then, if a withdrawal from union membership done after a petition for certification election has been filed does not vitiate such petition, is it not but logical to assume that such withdrawal cannot work to nullify the registration of the union? Upon this light, the Court is inclined to agree with the CA that the BLR did not abuse its discretion nor gravely err when it concluded that the affidavits of retraction of the 82 members had no evidentiary weight. It cannot be over-emphasized that the registration or the recognition of a labor union after it has submitted the corresponding papers is not ministerial on the part of the BLR. After a labor organization has filed the necessary registration documents, it becomes mandatory for the BLR to check if the requirements under Art. 234 of the Labor Code have been complied with. If the unions application is infected by falsification and like serious irregularities, a union should be denied recognition as a legitimate labor organization. Prescinding from these considerations, the issuance to the Union of the Certificate of Registration necessarily implies that its application for registration and the supporting documents thereof are prima facie free from any vitiating irregularities. The cancellation of a unions registration doubtless has an impairing dimension on the right of labor to self-organization. Accordingly, we can accord concurrence to the following apt observation of the BLR: "For fraud and misrepresentation to be grounds for cancellation of union registration under Article 239 of the Labor Code, the nature of the fraud and misrepresentation must be grave and compelling enough to vitiate the consent of a majority of union members." In its Comment, the Union points out that for almost seven (7) years following the filing of its petition, no certification election has yet been conducted among the rank-and-file employees. If this be the case, the delay has gone far enough and can no longer be allowed to continue. The CA is right when it said that Ventures should not interfere in the certification election by actively and persistently opposing the certification election of the Union. A certification election is exclusively the concern of employees and the employer lacks the legal personality to challenge it. In fact, jurisprudence frowns on the employers interference in a certification election for such interference unduly creates the impression that it intends to establish a company union.

Heritage Hotel Manila v. NUWHRAIN-HHMSC January 12, 2011 G.R. No. 178296 J. Nachura Facts: On October 11, 1995, respondent filed with the DOLE-NCR a petition for certification election. The Med-Arbiter granted the petition on February 14, 1996 and ordered the holding of a certification election. On appeal, the DOLE Secretary, in a Resolution dated August 15, 1996, affirmed the Med-Arbiters order and remanded the case to the Med-Arbiter for the holding of a preelection conference on February 26, 1997. Petitioner filed a motion for reconsideration, but it was denied on September 23, 1996. The preelection conference was not held as initially scheduled; it was held a year later, or on February 20, 1998. Petitioner moved to archive or to dismiss the petition due to alleged repeated nonappearance of respondent. The latter agreed to suspend proceedings until further notice. The preelection conference resumed on January 29, 2000. Subsequently, petitioner discovered that respondent had failed to submit to the Bureau of Labor Relations its annual financial report for several years and the list of its members since it filed its registration papers in 1995. Consequently, on May 19, 2000, petitioner filed a Petition for Cancellation of Registration of respondent, on the ground of the non-submission of the said documents. Petitioner prayed that respondents Certificate of Creation of Local/Chapter be cancelled and its name be deleted from the list of legitimate labor organizations. It further requested the suspension of the certification election proceedings. On June 1, 2000, petitioner reiterated its request by filing a Motion to Dismiss or Suspend the Certification Election Proceedings, arguing that the dismissal or suspension of the proceedings is warranted, considering that the legitimacy of respondent is seriously being challenged in the petition for cancellation of registration. Petitioner maintained that the resolution of the issue of whether respondent is a legitimate labor organization is crucial to the issue of whether it may exercise rights of a legitimate labor organization, which include the right to be certified as the bargaining agent of the covered employees. Nevertheless, the certification election pushed through on June 23, 2000. Respondent emerged as the winner. On June 28, 2000, petitioner filed a Protest with Motion to Defer Certification of Election Results and Winner, stating that the certification election held on June 23, 2000 was an exercise in futility because, once respondents registration is cancelled, it would no longer be entitled to be certified as the exclusive bargaining agent of the supervisory employees. Petitioner also claimed that some of respondents members were not qualified to join the union because they were either confidential employees or managerial employees. It then prayed that the certification of the election results and winner be deferred until the petition for cancellation shall have been resolved, and that respondents members who held confidential or managerial positions be excluded from the supervisors bargaining unit. Meanwhile, respondent filed its Answer to the petition for the cancellation of its registration. It averred that the petition was filed primarily to delay the conduct of the certification election, the respondents certification as the exclusive bargaining representative of the supervisory employees, and the commencement of bargaining negotiations.

Issue: Whether or not the certificate of registration should be cancelled Held: Articles 238 and 239 of the Labor Code give the Regional Director ample discretion in dealing with a petition for cancellation of a unions registration, particularly, determining whether the union still meets the requirements prescribed by law. It is sufficient to give the Regional Director license to treat the late filing of required documents as sufficient compliance with the requirements of the law. After all, the law requires the labor organization to submit the annual financial report and list of members in order to verify if it is still viable and financially sustainable as an organization so as to protect the employer and employees from fraudulent or fly-by-night unions. With the submission of the required documents by respondent, the purpose of the law has been achieved, though belatedly. We cannot ascribe abuse of discretion to the Regional Director and the DOLE Secretary in denying the petition for cancellation of respondents registration. The union members and, in fact, all the employees belonging to the appropriate bargaining unit should not be deprived of a bargaining agent, merely because of the negligence of the union officers who were responsible for the submission of the documents to the BLR. It is worth mentioning that the Labor Codes provisions on cancellation of union registration and on reportorial requirements have been recently amended by R.A. No. 9481 which lapsed into law on May 25, 2007 and became effective on June 14, 2007. The amendment sought to strengthen the workers right to self-organization and enhance the Philippines compliance with its international obligations as embodied in the International Labour Organization (ILO) Convention No. 87, pertaining to the non-dissolution of workers organizations by administrative authority. Thus, R.A. No. 9481 amended Article 239 to read: ART. 239. Grounds for Cancellation of Union Registration.The following may constitute grounds for 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. R.A. No. 9481 also inserted in the Labor Code Article 242-A, which provides: ART. 242-A. Reportorial Requirements.The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: (a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto; (b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; (c) Its annual financial report within thirty (30) days after the close of every fiscal year; and (d) Its list of members at least once a year or whenever required by the Bureau. Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty. ILO Convention No. 87, which we have ratified in 1953, provides that "workers and employers organizations shall not be liable to be dissolved or suspended by administrative authority." The ILO has expressed the opinion that the cancellation of union registration by the registrar of labor unions, which in our case is the BLR, is tantamount to dissolution of the organization by administrative authority when such measure would give rise to the loss of legal personality of the union or loss of advantages necessary for it to carry out its activities, which is true in our jurisdiction. Although the ILO has allowed such measure to be taken, provided that judicial safeguards are in place, i.e., the right to appeal to a judicial body, it has nonetheless reminded its members that dissolution of a union, and cancellation of registration for that matter, involve serious consequences for occupational representation. It has, therefore, deemed it preferable if such actions were to be taken only as a last resort and after exhausting other possibilities with less serious effects on the organization. It is undisputed that appellee failed to submit its annual financial reports and list of individual members in accordance with Article 239 of the Labor Code. However, the existence of this ground should not necessarily lead to the cancellation of union registration. Article 239 recognizes the regulatory authority of the State to exact compliance with reporting requirements. Yet there is more at stake in this case than merely monitoring union activities and requiring periodic documentation thereof.

The more substantive considerations involve the constitutionally guaranteed freedom of association and right of workers to self-organization. Also involved is the public policy to promote free trade unionism and collective bargaining as instruments of industrial peace and democracy. An overly stringent interpretation of the statute governing cancellation of union registration without regard to surrounding circumstances cannot be allowed. Otherwise, it would lead to an unconstitutional application of the statute and emasculation of public policy objectives. Worse, it can render nugatory the protection to labor and social justice clauses that pervades the Constitution and the Labor Code. Moreover, submission of the required documents is the duty of the officers of the union. It would be unreasonable to order the cancellation of the union and penalize the entire union membership on the basis of the negligence of its officers.

REPUBLIC OF THE PHILIPPINES, represented by DOLE vs.KAWASHIMA TEXTILE MFG., PHILIPPINES, INC. G.R. No. 160352 July 23, 2008

Kawashima Free Workers Union (KFWU) filed a Petition for Certification Election to be conducted in the bargaining unit composed of 145 rank-and-file employees of Kawashima Textile Mfg. Phils., Inc. Attached to its petition are a Certificate of Creation of Local/Chapter issued on January 19, 2000 by DOLE Regional Office No. IV, stating that it [KFWU] submitted to said office a Charter Certificate issued to it by the national federation Phil. Transport & General Workers Organization (PTGWO), and a Report of Creation of Local/Chapter. Kawashima Textile Mfg. Phils., Inc. argues that KFWU did not acquire any legal personality because its membership of mixed rank-and-file and supervisory employees violated Article 245 of the Labor Code, and its failure to submit its books of account. The Republic of the Philippines filed the present petition to seek closure on two issues: 1. WON a mixed membership of rank-and-file and supervisory employees in a union is a ground for the dismissal of a petition for certification election in view of the amendment brought about by D.O. 9, series of 1997, which deleted the phraseology in the old rule that "[t]he appropriate bargaining unit of the rank-and-file employee shall not include the supervisory employees and/or security guards;" and WON the legitimacy of a duly registered labor organization can be collaterally attacked in a petition for a certification election through a motion to dismiss filed by an employer such as Kawashima Textile Manufacturing Phils., Inc.

2.

First ISSUE: NO. [In short: here RA 9841 did not apply. If it did, the held would have been NO. Yet even without using RA. 9841, the Court still held NO, using 1997 Amended Omnibus Rules, as interpreted by the Court in Tagaytay Highlands, San Miguel and Air Philippines] The key to the closure that petitioner seeks could have been Republic Act (R.A.) No. 9481. Sections 8 and 9 thereof provide: Section 8. Article 245 of the Labor Code is hereby amended to read as follows: "Art. 245. Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees. - Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors' union operating within the same establishment may join the same federation or national union." Section 9. A new provision, Article 245-A is inserted into the Labor Code to read as follows: "Art. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are

automatically deemed removed from the list of membership of said union ." (Emphasis supplied) Moreover, under Section 4, a pending petition for cancellation of registration will not hinder a legitimate labor organization from initiating a certification election, viz: Sec. 4. A new provision is hereby inserted into the Labor Code as Article 238-A to read as follows: "Art. 238-A. Effect of a Petition for Cancellation of Registration. - A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election . In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable remedies in the appropriate courts." (Emphasis supplied) Furthermore, under Section 12 of R.A. No. 9481, employers have no personality to interfere with or thwart a petition for certification election filed by a legitimate labor organization, to wit: Sec. 12. A new provision, Article 258-A is hereby inserted into the Labor Code to read as follows: "Art. 258-A. Employer as Bystander. - 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 petition for certification election. The employer'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 employees during the pre-election conference should the MedArbiter act favorably on the petition." (Emphasis supplied) However, R.A. No. 9481 took effect only on June 14, 2007; hence, it applies only to labor representation cases filed on or after said date. As the petition for certification election subject matter of the present petition was filed by KFWU on January 24, 2000, R.A. No. 9481 cannot apply to it. There may have been curative labor legislations that were given retrospective effect, but not the aforecited provisions of R.A. No. 9481, for otherwise, substantive rights and interests already vested would be impaired in the process. Instead, the law and rules in force at the time of the filing by KFWU of the petition for certification election on January 24, 2000 are R.A. No. 6715 and the Implementing Rules. It is now using these that the Court will now resolve the two issues raised by petitioner. When the issue of the effect of mingling was brought to the fore in Toyota Motor Philippines Corporation v. Toyota Motor Philippines Corporation Labor Union , the Court, citing Article 245 of the Labor Code, as amended by R.A. No. 6715, held: Clearly, based on this provision, a labor organization composed of both rank-and-file and supervisory employees is no labor organization at all. It cannot, for any guise or purpose, be a legitimate labor organization. Not being one, an organization which carries a mixture of rank-and-file and supervisory employees cannot 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. It becomes necessary, therefore, anterior to the granting of an order allowing a certification election, to inquire into the composition of any labor organization whenever the status of the labor organization is challenged on the basis of Article 245 of the Labor Code. xxxx In Dunlop Slazenger, Inc. v. Secretary of Labor and Employment in which the labor organization that filed a petition for certification election was one for supervisory employees, but in which the membership included rank-and-file employees, the Court reiterated that such labor organization had no legal right to file a certification election to represent a bargaining unit composed of supervisors for as long as it counted rank-and-file employees among its members. But then, on June 21, 1997, the 1989 Amended Omnibus Rules was further amended by Department Order No. 9, series of 1997 (1997 Amended Omnibus Rules) . Specifically, the requirement under Sec. 2(c) of the 1989 Amended Omnibus Rules - that the petition for certification election indicate that the bargaining unit of rank-and-file employees has not been mingled with supervisory employees - was removed. Instead, what the 1997 Amended Omnibus Rules requires is a

plain description of the bargaining unit, which does not require that, for its creation and registration, a local or chapter submit a list of its members. Then came Tagaytay Highlands Intl. Golf Club, Inc. v. Tagaytay Highlands Employees UnionPGTWO in which the core issue was whether mingling affects the legitimacy of a labor organization and its right to file a petition for certification election. This time, given the altered legal milieu, the Court abandoned the view in Toyota and Dunlop and reverted to its pronouncement in Lopez that 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. In San Miguel Corp. (Mandaue Packaging Products Plants) v. Mandaue Packing Products Plants-San Miguel Packaging Products-San Miguel Corp. Monthlies Rank-and-File UnionFFW, the Court explained that since the 1997 Amended Omnibus Rules does not require a local or chapter to provide a list of its members, it would be improper for the DOLE to deny recognition to said local or chapter on account of any question pertaining to its individual members. More to the point is Air Philippines Corporation v. Bureau of Labor Relations , which involved a petition for cancellation of union registration filed by the employer in 1999 against a rank-and-file labor organization on the ground of mixed membership: the Court therein reiterated its ruling in Tagaytay Highlands that the inclusion in a union of disqualified employees is not among the grounds for cancellation, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) and (c) of Article 239 of the Labor Code. All said, while the latest issuance is R.A. No. 9481, the 1997 Amended Omnibus Rules, as interpreted by the Court in Tagaytay Highlands, San Miguel and Air Philippines, had already set the tone for it. Toyota and Dunlop no longer hold sway in the present altered state of the law and the rules. Flow: Toyota/Dunlop-Omnibus Rules/ Tagaytay/San Miguel/Air Phil Second ISSUE: NO. 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.