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LABOR ORGANIZATION

Article 234 is the process that is described in the red letter of the law for the registration of a labor organization. Take note that in that process, there must be an organizational meeting that includes all the members of the union, and they must agree to the formation and this must be documented. Article 234 of Labor Code. Requirements of registration. - A federation, national union or industry or trade union center or an independent union shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements: (a) Fifty pesos (P50.00) registration fee; (b) The names of its officers, their addresses, the principal address of the labor organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings; (c) In case the applicant is an independent union, the names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (d) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and (e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. Art 234 provides for the process for organizing a labor organization leading to legitimacy. That is, registration, which confers upon it the status of a person with a separate and distinct personality. Take note of this because this is the very same process that you use whenever you constitute a juridical person. If all of you want to form a corporation... from 5 - 15 incorporators ... minimum number of 5, maximum of 15 will be needed to sign the articles of incorporation as incorporators. But then you will have to constitute yourself. The rest will contribute, original subscription. The names of those who will contribute will also be included in the Articles, no longer as incorporators but as subscribers. So also in a cooperative. In a cooperative, you do not prepare articles of incorporation. The same manner -- you constitute, you have the meeting and then you sign the mother instrument, which is synonymous to the constitution of the Republic of the Philippines. Articles are the basic laws and declarations of juridical persons. Corporations have by-laws. Unions have by-laws and cooperatives have by-laws. Q: So how does a juridical person act? A juridical person acts by a resolution and a vote. Q: So what will the minutes contain? Only the legal significant acts. Let us say...Kapisanan ng Manggagawa Taga-Dabaw... that is the union. Minutes of the organizational meeting held at Dav ao Kitchenette, 24 June 1999. First part there being a quorum certified by a secretary, the meeting is called to order. Q: Whats the purpose of that? The declaration of the legally significant act that there was a quorum. Second part The following were passed. Resolved that the Kapisanan ng Manggagawa Taga-Dabaw unanimously adopt the constitution and by-laws as present. Signatures follow, and then copies of the constitution and the by-laws are also signed. That is the

legal significance. Because Art. 234 (e) says, minutes of its adoption or ratification and the list of the members who participated in it. Afterwards, Roman Numeral III. Third part There being no business to be taken, meeting is adjourned. So a lot of these minutes of corporation meetings, minutes of the meeting of a union, are useless surplusage. It should only contain resolutions. And then you said, when will we discuss? So you called a meeting. W nay minutes-minutes, sigeng diskute. Pagkahuman an, ready ka nang mubotar. Pagkabuhat sa minutes, result lang sa voting ang imyong ibutang; d na kung unsay gisulti. It does not bind anybody... Why? It is not a corporate act. Please understand that a natural person can do anything except those prohibited by law, and those that are not prohibited by law, you can do. But a juridical person can only do that which is either authorized by law to do, or that which is authorized by it articles and by-laws, or that which is voted upon by its members. Other than that, it cannot do anything. It is limited by these three sources of power because it is a person only in contemplation of the law. But when they come together and they act by means of voting, that is a union act. Other than that, they are a bunch of people juxtaposed physically but they are not a union, legally speaking. So, these are the formalities that are essential. Because it is an artificial person, the form of its acts is essential. You have to follow it; otherwise you have no act by that person. Now, let us go to the Implementing Rules (IRR). There is another way of forming a union, and that is by affiliation. Take a look at Rule III, Sec. 6. The rules that were formerly in place before this new DO 4003 had a special rule in registering an affiliation of a chartered local. Now it is just found together with rule III. Section 6. Report of Affiliation with federations or national unions; Where to file. - The report of affiliation of an independently registered labor union with a federation or national union shall be filed with the Regional Office that issued its certificate of registration. You report an affiliation. Who reports an affiliation? The federation says that it has affiliated a certain local. What are the requirements? Section 7. Requirements of affiliation. - The report of affiliation of independently registered labor unions with a federation or national union shall be accompanied by the following documents: (a) resolution of the labor union's board of directors approving the affiliation; (b) minutes of the general membership meeting approving the affiliation; (c) the total number of members comprising the labor union and the names of members who approved the affiliation; (d) the certificate of affiliation issued by the federation in favor of the independently registered labor union; and (e) written notice to the employer concerned if the affiliating union is the incumbent bargaining agent. Whose general membership is this? The federation or the local? It is the local. What is a local? The opposite of that is federation. The local is labor organization on the workplace level. So, independent union and a chartered local. Rule 1, Sec. 1(i). "Chartered Local" refers to a labor organization in the private sector operating at the enterprise level that acquired legal personality through the issuance of a charter certificate by a duly registered federation or national union, and reported to the Regional Office in accordance with Rule III, Section 2-E of these Rules.

If you are a union at the workplace level and you have an independent registration by virtue of Art. 234, can you still affiliate with a federation? Yes, you can still affiliate with the federation. In which case, you have potentially two personalities: You have your own independent registration and you have your registration of the federation. If you are expelled from the federation, you are still a union/labor organization organized under the Labor Code. But if you are not an independently registered union, if you are dismissed, or severed or resigned from the federation, you must immediately affiliate with another federation, otherwise you do not have personality. A federation is an aggrupation of different unions on the workplace level, tenor of which must at least be the exclusive bargaining agent of that particular employer. The local (labor organization on the workplace level) that affiliated with the federation is the principal and the federation is the agent. The employees that are members of the union are the true principals, the union is their agent. But the local, with respect to the federation, is the principal, and the federation is the agent. That is why even if the by-laws and the constitution of the federation prohibit disaffiliation except towards the end of the CBA, the local can still disaffiliate, because the contract of principal and agent may be severed anytime, even if there is consideration. Agency can be terminated anytime. This is because this contract is based on confidence. Rule 4, Book 5, Sec. 8. Effect of Registration. - The labor union or worker's association shall be deemed registered and vested with legal personality from the time of the date of the issuance of a certificate of registration or certificate of affiliation x x x (whether it be independent registration under Art. 234 or registration by affiliation). Such legal personality may be questioned only through an independent petition for cancellation of union registration and not by way of collateral attack in petition for certification election proceedings. Personality of a labor organization cannot be attacked collaterally. When a union petitions for election to be chosen by the workers, it impleads the employer. The employer answers, there should be no election because there is no union, it has no personality. Thus, for the purpose of adjudication of rendering a union a non person, there must be a principal main action. DEFINITIONS Let us go to the definition of labor organization. Let us take the red letter of the law. Art. 212 (g) that is the primary definition of a union for collective bargaining. That is only present in the private sector. Article 212 of Book V Labor Code. Definitions. (g) "Labor organization" means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. (h) "Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof. Section 1 of D.O. No. 40-03. Definition of Terms. (cc) "Labor Organization" refers to any union or association of employees in the private sector which exists in whole or in part for the purpose of collective bargaining, mutual aid, interest, cooperation, protection, or other lawful purposes. (ee) "Legitimate Labor Organization" refers to any labor organization in the private sector registered or reported with the Department in accordance with Rules III and IV of these Rules.

Section 1 of D.O. No. 40-03. Definition of Terms. (ccc) "Workers' Association" refers to an association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining. (ff) "Legitimate Workers' Association" refers to an association of workers organized for mutual aid and protection of its members or for any legitimate purpose other than collective bargaining registered with the Department in accordance with Rule III, Sections 2-C and 2-D of these Rules. Artile 212 of Book V Labor Code. Definitions. (j) "Bargaining representative" means a legitimate organization whether or not employed by the employer.

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First category, you have labor organization: What is determinative of labor organization? Not membership but purpose. The purpose must include (though not exclusively), in part or in whole, to bargain with the employer for better terms and employment of work, etc. The next category is a legitimate labor organization, whether by independent registration or by charter affiliation. The federation issues you a charter certificate, you have organizational meetings, draw constitution and bylaws and together with these three you submit to the DOLE. Legitimate labor organization includes any local thereof. The third category is the bargaining representative. After you have been elected in a certification election and you are certified by DOLE, you become a bargaining representative if you are a labor organization. Summary: The stages of obtaining the status of being an exclusive bargaining agent: labor organization is the first stage, the second is legitimate labor organization, and the highest is the exclusive bargaining agent. UNIONS Section 1 of D.O. No. 40-03. Definition of Terms. (w) "Independent Union" refers to a labor organization operating at the enterprise level that acquired legal personality through independent registration under Article 234 of the Labor Code and Rule III, Section 2-A of these Rules. (i) "Chartered Local" refers to a labor organization in the private sector operating at the enterprise level that acquired legal personality through the issuance of a charter certificate by a duly registered federation or national union, and reported to the Regional Office in accordance with Rule III, Section 2-E of these Rules. (a) "Affiliate" refers to an independent union affiliated with a federation, national union or a chartered local which was subsequently granted independent registration but did not disaffiliate from its federation, reported to the Regional Office and the Bureau in accordance with Rule III, Sections 6 and 7 of these Rules. If you are an affiliate, it means that you are a local. But not just a local, you are have an independent registration under Article 234. When you talk about a chartered local as opposed to the affiliate, the chartered local does not have an independent registration. It is a legitimate labor organization because it is part of a federation, and the federation is a legitimate labor organization. One of the additional requirements for the registration of a federation over and above what Art. 234 requires is found in Art 237.

Article 237. Additional requirements for federations or national unions. - Subject to Article 238, if the applicant for registration is a federation or a national union, it shall, in addition to the requirements of the preceding Articles, submit the following: (a) Proof of the affiliation of at least ten (10) locals or chapters, each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union; and (b) The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved. "Proof of the affiliation of at least 10 locals or chapters" a local may be called a chapter, a branch as in Art. 212 or it may be called affiliate under Sec. 1(a) of the Rules, except that we know that an affiliate has dual personality; a chartered local has only one personality. "each of which must be a duly recognized collective bargaining agent in the establishment or industry in which it operates" Collective Bargaining Agent is the other terminology for Bargaining Representative (which is broader). Section 1 of D.O. No. 40-03. Definition of Terms. (kk) "National Union" or "Federation" refers to a group of legitimate labor unions in a private establishment organized for collective bargaining or for dealing with employers concerning terms and conditions of employment for their member unions or for participating in the formulation of social and employment policies, standards and programs, registered with the Bureau in accordance with Rule III, Section 2-B of these Rules. In terms of perfection of status, for purposes of collective bargaining, this is the sequence. You begin with this (labor organization), your purpose is collective bargaining. You register with the DOLE, you undergo election, and then now you have the fullness of the status of a labor organization. Local, branch, chapter, affiliate. Local could be affiliate, it could be chapter. But you know that the affiliate has an independent registration, then it affiliates itself. Federation or a national union. A federation can have various locals or chapters from different industries. What's an example? NFL (Nat'l Federation of Labor), SPFL (Southern Phil. Federation of Labor). You can have a chapter from Pfizer, which is pharmaceutical. You can have a chapter from Davao Union Cement, which is manufacturing or from SM, which is retail. But if you are a national union, the example is PLDT Union. In PLDT union, the workplace is scattered all over the Philippines. You have workers in NCR, Legaspi, Bicol, Baguio, Davao. Those are various locals, and they are connected with the National Union. Another example is PALEA Phil. Airlines Employees Assoc. So it is just one ER with many chapters. Labor centers. What's an example of this? TUCP (Trade Union Center of the Philipppines), or TUPAS (Trade Unions of the Phil. and Allied Services). These are aggrupations or associations of federations and local independents bonded together under one constitution. Their purpose is to make common stands with respect to issues in labor or labor relations, wages, etc, for purposes of consultation* with the executive meaning tripartite formulation of policy, so groups combine, meet and agree with respect to policies in labor. What are those 3 sectors? From the employees (unions), from the employer, and from government. So they meet together. For purposes of determination of minimum wage, these three meet and distill the

particular policies with respect to wages. They do not assist them to collective bargaining, but their members all participate in collective bargaining situations because they are aggrupations of workers that are organized. Federations, labor unions, or legitimate labor organizations sit in collective bargaining. But labor centers which are aggrupations of labor federations no longer sit in collective bargaining. Unions could either be for CBA, or non-CBA. If it is for CBA, then it is covered principally by Book V. Other than Book V, you are just talking about activities more akin in the exercise of the right of association. But here (in Book V), this is protected already. Why? Because you can demand your employer to sit with you and agree on terms and conditions, you draw up a contract. If the employer does not sit down with you, then the employer may be held to account for exercise of ULP (unfair labor practice). When it comes to money claims, such arises out of an employeremployee where the employer underpays or fails to pay wages and other benefits. The cause of action belongs to the individual employee. If there is a union, it is the union who files the money claim. There is no need to list down all its members that it represents. The union can file a complaint, and later on if the money claim is awarded, then all the members who fit into the complaint and are similarly situated become the beneficiaries of the award. Supposed after the filing of the money claims complaint, the union loses its registration or its registration is cancelled. there is no need for substitution even if the registration of the union is cancelled. The case can go on, and all those union members who fit in the cause of action or similarly situated, they will be the beneficiaries of the award of the labor tribunal. In a money complaint, the personality of a labor union cannot be questioned because the personality of the union is not open to collateral attack. There must be a separate and distinct action for carrying out the cancellation of the union's registration. If there is already a ruling that the labor union's registration is cancelled, and it is still subject to appeal, the union is still functioning because the decision is not final and executory. Only when the decision is final and executory is the union deemed to have lost its personality, but then the case continues with the union members taking up the actions for the union. Does the union have authority to compromise the money claim of its members? If it has the authority to bring an action to claim the underpayment and wage differentials of members, does it have authority to compromise the same? The union does not have authority to compromise them. It must be each member who must compromise his/her own money claim. Suppose the union, in a general membership meeting of all the members of the union, they vote by more than 2/3 majority that they will compromise their money claims, does that bind everyone? There must be individual written authorization. So those who refused to give the individual written authorization are not covered because money claims are personal to them, and it is only them who can surrender the same. Cases when a union becomes a local or a chapter of a federation 1. If the local is an independently registered union, which in the implementing rules is called an affiliate, it does not lose its independent legal personality. Why? Because there is no provision which divests it of its original registration. 2. The local becomes subject to the rules and regulations of the federation. In other words, the federation has a right to investigate and expel members of the local on the basis of the constitution and by laws of the federation.

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The contractual relation between local and federation from the CBA point of view is that of principal and agent. A local is the principal, and the federation is the agent. And therefore, the real party in the CBA is the local, not the federation. Contrary to the constitution and by laws of the federation (which allows disaffiliation only within the 60 day freedom period), the local may disaffiliate from the federation at anytime, provided that such act is approved by the great majority of all the eE's in the bargaining unit. As a corollary to number 4, once there is a disaffiliation, the obligation to remit union dues for the federation -- to check off dues for the federation-- ends, even if the contract still continues. The local union, not the federation, is liable for damages arising from an illegal strike voted for by the local, even if it was the federation who filed the notice of strike. The real party in interest is the local, so it is the local who is liable for damages arising from an illegal strike, even if federation filed the notice of strike.

and records of settlement of labor disputes and copies of orders and decisions of voluntary arbitrators. The file shall be open and accessible to interested parties under conditions prescribed by the Secretary of Labor and Employment, provided that no specific information submitted in confidence shall be disclosed unless authorized by the Secretary, or when it is at issue in any judicial litigation, or when public interest or national security so requires. Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration, accompanied with verified proofs of its posting in two conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau or Regional Offices shall act upon the application for registration of such Collective Bargaining Agreement within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the Bureau with a copy of the Collective Bargaining Agreement within five (5) days from its submission. The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a registration fee of not less than one thousand pesos (P1,000.00) or in any other amount as may be deemed appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient administration of the Voluntary Arbitration Program. Any amount collected under this provision shall accrue to the Special Voluntary Arbitration Fund. The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions, orders and awards of the Secretary of Labor and Employment, Regional Directors and the Commission. They might have decisions also. Remember Art. 129 of your labor standards? The Regional Director has jurisdiction over money claims as long as there is no prayer for reinstatement, and the individual aggregate monetary claim does not exceed P5,000.00. So the regional director also makes awards in cases of inspection of workplaces, and there is a deficiency of wages, the regional director can act on the basis of the recommendation. These are the types of decisions which the bureau shall maintain a file of. That is where the file is kept-- with the BLR. Who is their front line officer? The MED-ARBITER. In contrast with the LABOR ARBITER. The frontline officer of the NLRC is the LA, while that of the Bureau is the MA. RIGHTS AND CONDITIONS OF MEMBERSHIP Article 241. Rights and conditions of membership in a labor organization. The following are the rights and conditions of membership in a labor organization: (a) No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed This is protection to the ordinary member of the union against his own union who might extract excessive or arbitrary fees. (b) The members shall be entitled to full and detailed reports from their officers and representatives of all financial transactions as provided for in the constitution and by-laws of the organization The right to a full and detailed financial reports.

Before we go to Art. 241, we must first be familiar with that bureau in the labor dept. that has jurisdiction over labor unions -- the BUREAU OF LABOR RELATIONS (blr) Under Article 212 (b) Bureau means the Bureau of Labor Relations and/or the Labor Relations Divisions in the regional officies established under PD 1 of DOLE. Let me tell you that in the DOLE there are several bureaus ha. There is Bureau of Labor Studies. But whenever a Bureau is being referred to in Book 5, that is the BLR, not the Bureau of Labor Studies. The BLR is found in Art. 226. The BLR has its principal office in Manila, but then it has several personnel that are attached to the Regional Offices of DOLE. Because for every region there is a regional office of the DOLE, and it has labor relations officers assigned therein. Under 212 (A) when it says Commission it means NLRC. Are there other commissions in the DOLE? Yes, the National Productivity and Wages Commission. But that is not what is referred to, but the NLRC. So, take a look at Art. 226. Bureau of Labor Relations. - The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor, shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labormanagement relations in all workplaces, whether agricultural or nonagricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by agreement of the parties. Note: interunion - conflicts between unions intraunion- conflicts within the unions; either officers vs. officers, members vs. members, or members vs. officers. Now, again, take a look at Art. 231. One of the functions of the BLR is to maintain a registry of unions and a registry of CBAs. Article 231. Registry of unions and file of collective bargaining agreements. - The Bureau shall keep a registry of legitimate labor organizations. The Bureau shall also maintain a file of all collective bargaining agreements and other related agreements

(c) The members shall directly elect their officers, including those of the national union or federation to which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification requirements for candidacy to any position shall be imposed other than membership in good standing in subject labor organization. The secretary or any other responsible union officer shall furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with the appointive officers or agents who are entrusted with the handling of funds, within thirty (30) calendar days after the election of officers or from the occurrence of any change in the list of officers of the labor organization The right to directly elect their officers. Now the terms of the officers cannot be longer than 5 years. Why is is 5 years? To coincide with the term of the CBA. Another way is by representation. The whole point of this change is supposedly to end dynasties. If you are a big federation all over the Philippines, the only candidate that will win is someone who has the money to travel around. And who has the money to travel around? The candidate of the employer, not the candidate of the members. (d) The members shall determine by secret ballot, after due deliberation, any question of major policy affecting the entire membership of the organization, unless the nature of the organization or force majeure renders such secret ballot impractical, in which case, the board of directors of the organization may make the decision in behalf of the general membership Now, the union leaders do not want that to be the subject of voting by everybody and what do they do? They put it in their articles of incorporation. They will say that "the union dues that will be checked off from every member of this federation shall not exceed 1 1/2 or 2% of the gross pay of the member" So as your salary increases, it also increases. And it is also proportionate, the bigger your salary, the bigger your union dues. Now, if it is in the constitution and by laws, do you still vote for it? No more because that is the terms and conditions of your agreement. You are supposed to have read that. If you don't agree, then you don't join, but if you do join, you are presumed to have agreed to that condition. (e) No labor organization shall knowingly admit as members or continue in membership any individual who belongs to a subversive organization or who is engaged directly or indirectly in any subversive activity No longer in force (f) No person who has been convicted of a crime involving moral turpitude shall be eligible for election as a union officer or for appointment to any position in the union (g) No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to its constitution and by-laws This rule is here because during the organizational phase of a union, there are still no officers, there is still no treasurer, secretary. It is the organizers who start to collect money to fund the union's activities. After their organization, there is already an election of officers, these organizers get used to collecting. (h) Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt signed by the officer or agent making the collection and entered into the record of the organization to be kept and maintained for the purpose Any organization will have to follow this as this is part of accounting. (i) The funds of the organization shall not be applied for any purpose or object other than those expressly provided by its

constitution and by-laws or those expressly authorized by written resolution adopted by the majority of the members at a general meeting duly called for the purpose Extraordinary expenditures must be approved by the members at a general meeting duly called for the purpose. Is it the absolute majority of the membership or is it just a quorum majority? It is just a quorum majority. (j) Every income or revenue of the organization shall be evidenced by a record showing its source, and every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment is made, which shall state the date, place and purpose of such payment. Such record or receipt shall form part of the financial records of the organization. Any action involving the funds of the organization shall prescribe after three (3) years from the date of submission of the annual financial report to the Department of Labor and Employment or from the date the same should have been submitted as required by law, whichever comes earlier: Provided, That this provision shall apply only to a legitimate labor organization which has submitted the financial report requirements under this Code: Provided, further, that failure of any labor organization to comply with the periodic financial reports required by law and such rules and regulations promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the cancellation of union registration of such labor organization The failure to file financial reports has been upheld in the case of PAFLU vs. Secretary, famous landmark case of Chief Justice Roberto Concepcion. Because the union PAFLU claimed that by cancelling registration the Department of Labor was violating the members constitutional right to association. Roberto Concepcion in his clear and lucid language distinguished it. A totally and distinct personality that is to be registered is not a precondition for the exercise of freedom of association. Your separate and legal personality as a union is cancelled if you failed to report. That is not necessary for the exercise freedom of association. Because freedom of association is essentially association. The Martial Law was proclaimed, General Order No. 1, to be effective the gathering of three or more people. If you gather three or more you could be arrested and detained without the need of any warrant. Why? Because it is very easy to say let us meet together and topple the government because it is an unauthorized government. Martial rule is already in excess of constitution. So immediately Marcos declared I dont care what the Sandiganbayan has done which is one of the smelliest courts that has made an appearance. The essence of freedom of association is solicitation. Remember it is not the gathering physically. Kay kung tinuod pa na kanang tanan nagasakay og jeep diba more than three man pandakpon mo kay naa mo dira nagkatigom mo. The juxtaposing of people is not freedom of association. The essence of association is solicitation. That is why even in the internet, even if you are miles apart you can associate. And any country that wants to control the internet is actually violating your freedom of association. China is the number one violator of freedom of association. The big internet websites like yahoo, google, and different Chinese websites are forced to give to the government. They have primary codes. The Chinese government hires people to keep track. If you are a man and you associated with more than one woman you could have been arrested in Martial Law. You cannot gather three or more. That is General Order No. 1. General Order No. 2 is check points. That is why kanang mga check point nga good evening sir, G.O. 2 ni sir those are part of G.O. 2. All those soldiers are educated

and trained. Who issued the GO? The Commander in Chief. It is a military operation. It does not require a warrant. If the union registration is cancelled for failure to comply with the periodic financial report that is not a violation of the freedom of association. Prescriptive period is supposed to be 3 years from the date of submission of report or from the date of actual submission, whichever comes earlier. Every expenditure from the funds shall be credited by a receipt from the person to whom payment is made which shall state the date, place and purpose of the same. You must have evidence of the expenditure. (k) The officers of any labor organization shall not be paid any compensation other than the salaries and expenses due to their positions as specifically provided for in its constitution and bylaws, or in a written resolution duly authorized by a majority of all the members at a general membership meeting duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from the organization The general rule is that the officers of the union are not paid. The exception is if the constitution and by-laws so provide or by the general membership by absolute majority vote then they shall so be paid. That is the rule. (l) The treasurer of any labor organization and every officer thereof who is responsible for the account of such organization or for the collection, management, disbursement, custody or control of the funds, moneys and other properties of the organization, shall render to the organization and to its members a true and correct account of all moneys received and paid by him since he assumed office or since the last day on which he rendered such account, and of all bonds, securities and other properties of the organization entrusted to his custody or under his control. The rendering of such account shall be made: (1) At least once a year within thirty (30) days after the close of its fiscal year; (2) At such other times as may be required by a resolution of the majority of the members of the organization it is just a quorum majority. So there is a very small quantum of votes needed to command the treasurer to make the report. (3) Upon vacating his office. The account shall be duly audited and verified by affidavits and a copy thereof should be furnished to the Secretary of Labor. Why is this necessary? To put a closure to his accountability, and so that the incoming treasurer will not be penalized by the indiscretions of the predecessor, or so that the incoming treasurer will not be able to steal money and so is that predecessor, either way so there must be closure. That is why he is commanded upon vacating the office to produce a financial report. The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the Secretary of Labor. (m) The books of accounts and other records of the financial activities of any labor organization shall be open to inspection by any officer or member thereof during office hour The stockholders rights apply to this section. You cannot demand a

copy, but you can copy at your own expense. And the union has the right to determine the time when they (books) are open for inspection, because if this right can just be exercised at will, then the officers will have nothing to do but just opening the books. (n) No special assessment or other extraordinary fees may be levied upon the members of a labor organization unless authorized by a written resolution of a majority of all the members in a general membership meeting duly called for the purpose. The secretary of the organization shall record the minutes of the meeting including the list of all members present, the votes cast, the purpose of the special assessment or fees and the recipient of such assessment or fees. The record shall be attested to by the president There is a need for voting and absolute majority. So there are even formal requirements when it comes to special assessment in addition to the secret ballot voting required by letter (d). (o) Other than for mandatory activities under the Code, no special assessments, attorneys fees, negotiation fees or any other extraordinary fees may be checked off from any amount due to an employee without an individual written authorization duly signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction So when it is a special assessment or when it is atty's fees or negotiatition fees, or extraordinary fees, then aside from the secret ballot (in letter D), and the formal requirements (in letter N the secretary has to write down all those who participated in the meeting, and the attestation of the president, etc), additional requirement of individual written authorization duly signed by the employee. Now what happens if all vote and write the written authority and there is only one who does not want? Then he cannot be covered by this special assessment; he cannot be checked off by the employer. Check off means it will be deducted from the source by the employer. Now, that is why you have to read the ABS CBN case. That is the landmark case for special assessment. You will see those who did not give their written authorization will not be covered by the special assessment. So Korina Sanchez, Jay Sonza, Mel Tiangco filed a case that they should not be covered, and the Union could not prove that it was a mandatory activity -- because it says "OTHER THAN for MANDATORY ACTIVITY". If it were a mandatory activity, you can collect on special assessment, this is the exception to the exception. But here, this was not a mandatory activity because it was attorney's fees for the attorney who helped them negotiate their CBA. What are these mandatory activities for which you can collect for special assessment without necessarily going through the formalities of individual written authorization in letter O and N. That is answered in letter P: (p) It shall be the duty of any labor organization and its officers to inform its members on the provisions of its constitution and bylaws, collective bargaining agreement, the prevailing labor relations system and all their rights and obligations under existing labor laws. These are mandatory activities for which you can collect for special assessment without necessarily going through the formalities of individual written authorization in letter O and N. For this purpose, registered labor organizations may assess reasonable dues to finance labor relations seminars and other labor education activities. That is a mandatory requirement. You can

collect special assessment on that because that is mandated by the labor code. Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. Normally it is the officers who are being penalized, because is you cancel the registration of the Union, you are in effect, penalizing the members, that is why most often, it is the officers who are penalized. At least thirty percent (30%) of the members of a union or any member or members specially concerned may report such violation to the Bureau. The Bureau shall have the power to hear and decide any reported violation to mete the appropriate penalty. What bureau is it? Bureau of Labor Relations has the exclusive and original jurisdiction of what is called intra-union disputes, which arise under this Art. 241. Is there need for 30% to file the complaint before the Med-Arbiter of the Bureau can hear and decide those cases? By a decided case, the SC said that this 30% requirement is merely directory. That is Rodriguez vs. Director of Labor Relations 165 SCRA 239 (1988). That is only directory. Criminal and civil liabilities arising from violations of above rights and conditions of membership shall continue to be under the jurisdiction of ordinary courts. The ruling in Progressive Development case and Protection Technology case, where the registration requirement was questioned in the petition for the issuance of an order for certification election is deemed modified. Now, a labor organizations registration may also be attacked directly through cancellation of registration proceedings in accordance with Arts. 238 and 239 of the Labor Code. However, if the union still does not have legal personality as when it does not have yet a certification of registration at the time it files a petition for certification election, or when the local / chapter has no certificate indicating that it is included in the roster of legitimate labor organizations as issued by the Regional Office or the Bureau, then the rulings in Progressive Development case and Protection Technology case are still controlling. Q: What is the PROCEDURE? Notice and hearing as required by Art. 238. The original provision of Art. 238 has already been repealed by EO 111. That means, it is actually Arts. 234, 237 and 239 that constitute the grounds for cancellation. So, there you have the explicit grounds. Take note... observance of the periods; 30 days; observance of the submission of lists are serious obligations. The failure of which could merit cancellation. Q: When a group of workers form themselves into a group and write a constitution and by-laws, and files the same with the SEC for registration as a corporation, and after that, turn around and form themselves as a union and register with the DOLE-BLR. Subsequently, the two sets of officers fought over union dues. In that case, how many separate and distinct personalities does it have? You read the case of Cebu Seamens Association vs. Calleja. It is the registration of the organization with the BLR and not with the SEC which makes it a labor organization with the rights and privileges granted under the Labor Code. Its registration with the SEC could not give it the status of a legitimate labor organization. Now, let me bring to your attention Art. 274, visitorial power. When did we first come across this power? We saw this in Art. 128 Visitorial powers of Sec DOLE or representative of Sec. of DOLE with respect to enforcement of minimum wage.

Article 274. Visitorial power. - The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine compliance or non-compliance with the law and to prosecute any violations of the law and the union constitution and by-laws: So who has the power to inspect labor organizations, to visit them, to look at their books? Under 247, the Sec. of Labor or his duly authorized representatives -- the Bureau or the Director or any officer there can be made the duly authorized representative. Provided, That such inquiry or examination shall not be conducted during the sixty (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. (As amended by Section 31, Republic Act No. 6715, March 21, 1989). This particular last provision is so that this particular visitorial power will not be used for persecution against particular personalities. So you cannot do it during the freedom period of the CBA and upon assumption of office, within 30 days. Now, the issue here is the BLR has the exclusive and original jurisdiction to try and decide intra-union dispute, and this dispute may spring out from money controversy. Can the Bureau on its own, does it have power to inspect? Because it says here (Art. 274) they have to wait for the Sec. of Labor? It would seem that they have to wati for the Sec. of Labor. Do they not have on their own the visitorial power to inspect? They have [such power], but just to show you how topsy-turvy our law is, it is found in Chapter 16, Book 4, Title 7 of the Admin. Code of 1987. The Sec. of Labor has visitorial powers, the BLR on its own can exercise visitorial powers. Why? In the interest of the working man who is supposed to be protected by the Union. Just to put things in perspective, you have taken up Admin. Law, and you have come across the doctrine of exhaustion of admin. remedies. That is the same rule that is applicable here. The union member must first exhaust all the internal remedies available to a worker under its constitution and by-laws. So he must seek redress from the authority of the Union. After he/she has exhausted [the remedies], then s/he can file a complaint with the Med-Arbiter. Of course you know that there are so many exceptions, suppose the one you are complaining against is the one under the constitution and by-laws whom you should file your complaint with, or if it is a question of law, etc. There are 13 exceptions here, laid down by jurisdiction. That is also applicable here. RIGHTS AND OBLIGATIONS OF LEGITIMATE LABOR ORGANIZATIONS Article 242. Rights of legitimate labor organizations. A legitimate labor organization shall have the right: (a) To act as the representative of its members for the purpose of collective bargaining when it acts as representative for purposes of collective bargaining, we will learn later on, that it is not only representing its union members, but it represents the entire barganing unit. (b) To be certified as the exclusive representative of all the employees in an appropriate bargaining unit for purposes of collective bargaining What do you mean by certified? First, you become part of the bargaining unit, and after your election, the BLR certifies that election.

(c) To be furnished by the employer, upon written request, with its annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement, or during the collective bargaining negotiation Audited financial statement, there are two: the balance sheet, and profit and losses. You have a right to demand. Now, if you have not demanded within 30 days after you were certified, you can also ask for it during the negotiations or during collective bargaing negotiations, or within 60 days before the expiration of the existing CBA The necessary incidental rights of a juridical person: (d) To own property, real or personal, for the use and benefit of the labor organization and its members; (e) To sue and be sued in its registered name; and (f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. Notwithstanding any provision of a general or special law to the contrary, the income and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision. CANCELLATION Article 239. Grounds for cancellation of union registration. - The following shall 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) Failure to submit the documents mentioned in the preceding paragraph within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto; (c) Misrepresentation, false statements or fraud in connection with the election of officers, 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 within thirty (30) days from election; (d) Failure to submit the annual financial report to the Bureau within thirty (30) days after the closing of every fiscal year and misrepresentation, false entries or fraud in the preparation of the financial report itself; (e) Acting as a labor contractor or engaging in the "cabo" system, or otherwise engaging in any activity prohibited by law; (f) Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standards established by law; (g) Asking for or accepting attorneys fees or negotiation fees from employers; (h) Other than for mandatory activities under this Code, checking off special assessments or any other fees without duly signed individual written authorizations of the members; (i) Failure to submit list of individual members to the Bureau once a year or whenever required by the Bureau; and

(j)

Failure to comply with requirements under Articles 237 and 238.

This is not an exclusive list. Art. 241, says: "Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of officers from office, whichever is appropriate. x x x". So potentially, therefore, any of these provisions in 241 is a ground for cancellation of registration. So in relation to 239, you have 241. And then under Art. 239, it says under letter (j) Failure to comply with requirements under Articles 237 and 238. And those are requirements for the registration. Failure to comply with Articles 234, 237, 239, and 241 sums up the grounds for cancellation of registration. What is important in the cancellation of registration is notice and hearing. Registration once issued is a vested right and therefore the union may not be deprived of the same without compliance with the requirements of due process. And due process is complied with if there is notice and hearing. CERTIFICATION ELECTION Rule 1, Sec. 1(h). "Certification Election" or "Consent Election" refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. A certification eletion is ordered by the Department, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. Know that very well because that is erroneous. First of all, it does not distinguish between certification election and consent election. Secondly, intervention of the State by way of overseeing elections is permissive, when it is not. In other words, there could be or there could not be intervention by the DOLE (the State) in the certification election. That is incorrect, precisely because it is for certification election, not just election because the State certifies the result. You have an accountant in you establishment, and you have a certified public accountant, what is the difference? The CPA issues a sworn statement, that the work of the accountant in telling the financial story is as close as possible to the real financial story. Somebody else certifies, he's an independent body. The trouble is our DOLE is only schooled in one school of thought. The real definition of a certification election is: It is the process of determining whether or not a bargaining unit wishes to be represented, and if so, who or what union shall represent them. And the result of that process is certified by the state as the true and correct choice of the bargaining unit. So basically there are two issues to be determined: 1. Whether or not the bargaining unit may be represented; 2. Who is that representative. Now, its not like an election for a mayor. The people there have no choice, whether they like it or not, they must have a mayor. That is why you just vote for who will be a mayor. But in a certification election, especially if it is the first certification election in an unorganized establishment, even if there is only one candidate, there is still an election. And what is the choice? The choice is between no union and that candidate. And time and again the SC has said that even if there is only one candidate, there has to be an election. Why? Because the right to self-organization includes the right not to join a union. Under EO 180, it says that if there is only 1 union registered for a particular employee's unit, then the same will be listed as the

exclusive bargaining agent of that unit. There is what we call direct certification. The government itself certifies that that is the representative. That can still be challenged before the SC, and if that will be challenged by the government workers, they will say that our right to self organization should not be less than the right to self organization of those employed in the private sector. Because even if there is only one union, they can still choose between no union and that union. There are several kinds of certification election. First it says CONSENT ELECTION. The definition there is not quite accurate because in the certification election proceedings, actually if it is an unorganized establishment, the first order of business is to determine the appropriate bargaining unit. The union represents a bargaining unit. What is a bargaining unit? A bargaining unit is a specific configuration of employees in one employer. In any employer, there are at least 2 bargaining units. Why? You have the bargaining unit of supervisors, because the supervisors cannot join the rank and file. And secondly, there is the bargaining unit of the rank and file. At least there are two, and you can be sure of that. So, rank and file can also be very broad, it can be divided into several bargaining unit. Now, question: What are the accepted criteria for the determination of a bargaining unit as appropriate? That is answered in BELYCA CORP. VS CURRA-FERRER CALLEJA. In this case, this is an unorganized establishment, meaning there is still no union in this establishment. The union came in for the 1st time and filed a petition for certification election. Management opposed and what was the opposition? It was grounded on the improprietness of the bargaining unit. Now, this is where the SC listed down several criteria, and it is important for you to realize why a multiple criteria is needed because the law does not say the "most appropriate bargaining unit" but it says "appropriate bargaining unit". So the leeway for discretion is wide. You will later on see that the title of a certification election is not Union, petitioner vs. Management, respondent. Management is NOT a party. What the SC says in LVN vs Phil. Musicians' Guild is a landmark pronouncement in labor relations because SC says that a petition for certification is a fact finding proceeding. What is the fact sought to be established? The choice of the people in the bargainng unit. That is why the title for a petition for certification election is: IN RE: Petition for Cert. Election among Rank and File Ees of XYZ Corp. That is the title of the petition. In Belyca case, the setting here is Malaybalay Bukidnon. There is a place there called Kalasugay. As you go into that portion, you will see there a farm where Belyca Corp had a 300 sow piggery, and some cornfields and cassava fields.Uptown there is this particular supermarket, Belyca Supermarket. And there is another part of town with two movie theaters and a restaurant, that is all part of Belyca Corporation. Now, ALU went into the farm of Belyca and organized the farmers. They filed a petition for certification elections, and the respondent is Belyca Corporation, and they want this established as a bargaining unit, carved out of the rank and file workers of Belyca. And they want to represent this bargaining unit. Management opposed and said this is not the appropriate bargaining unit. Mgt says the appropriate bargaining unit is the entire employee unit. They gave particular reasons: If this (farmers) is the appropriate

bargaining unit, then all these (supermarket workers and the theater and restaurant workers) will also separate and we will have no time to manage and we will just be sitting with one union after another. So this is not the appropriate bargaining unit. The med-arbiter who heard this made a pronouncement that the appropriate bargaining unit is this farm and therefore set an election. Belyca appealed it to the Sec of Labor and then to SC. SC says there are several criteria for determination of the appropriateness of a bargaining unit. What are those criteria? 1. BARGAINING HISTORY 2. GLOBE DOCTRINE 3. COMMUNITY OF INTEREST 4. STATUS OF THE WORKERS' EMPLOYMENT 1. BARGAINING HISTORY

What do you mean by bargaining history? IF this were an organized establishment, meaning there is already a union here representing these workers, the next time it holds a petition for certification election, the bargaining unit over which representation will be determined, will still be the unit because it is presupposed that what is apppropriate before is still appropriate now. What is the bargaining unit yesterday will still be the bargaining unit today and tomorrow. What is the exception? The exception is if there is AN INTERVENING SUBSTANTIALLY ALTERING HISTORICAL FACT. What could that fact be? The case of NAFTU vs. Mainit Lumber-ULGWP. Before, Mainit Lumber was divided into two general bargaining unit for the rank and file. The first bargaining unit (BU) is for the logging workers. Most of these workers are out in the field, operating heavy machineries, staling the logs, loading the trucks.. they are out in the forest. The second BU is the sawmill, those that cut the logs, classify the logs, load and ship the logs. So these are two separate BU. In the course of the years, all the logs were consumed. There were no more logs to be cut. So they laid off people little by little until those who working-- the remnants of the logging BU -- became the members of the logpulp when the logs from Indonesia which they improvised (?) were dropped off and brought into the sawmill. Gamay na lang ang tao. So the union moved that instead of 2 BUs, there should only be 1 because the logging BU were depleted. Is that correct because management opposed it? SC said that's correct, it should only be one because there is now a substantial fact that has altered the situation. So that principle of bargaining history is given exception to. Another exception to that rule is SAN MIGUEL CORP VS LAGUESMA. What happened here? We are talking here of the sales force of SMB. The sales force of SMB used to be made up of roving mestizo employees that had white uniforms, white shirt, khaki pants, and they roamed in these trucks which were really SMB trucks, and they got their merchandise from the SMB bodega, and they distributed SMB. So you have a sales force in La Union, in Baguio, in Lawat, Ilocos Norte, in Isabela, in all these different places. Now, what happened? SMB entered into a revision of its sales force. Instead of employing these mestizo looking individuals, SMB began to set up this guerilla style of selling, pioneered by Pop Cola. What was this guerilla style of selling introduced by Pop Cola? Muadto sila to the biggest sari-sari store in the area, gusto ka ba mahimong distributor? Unya, mao ni imong area, pautangon ka

namo, buhat kag bodega sa imong likod, butangan natog softdrinks. Dayon imong mga tao ang manuroy diha sa inyong area, manguhag order, unya ang mudeliver ana kanang mga trisikle drivers na.Dili na na sila ma-unionize. Mao na na ang nahitabo. That was questioned in the SC, San Miguel Special Events Team vs. Secretary. It was upheld by the SC. Because: 1. it was bona fide business interest -- to reduce cost. 2. Management did not reduce the pay of the salesmen. They incorporated their commissions in their basic, so even if their territory is growing smaller and smaller, they were still receiving the same pay. But they were no longer being replaced. If they retire, there will be no replacement hired for you. The area they leave behind will be taken over by these sari sari store distributors. So nagkagamay na sila ug kagamay. Hantod sa kagamay nila, napugos sila ug retire. Those are business exigencies. In this case, before, there used to be let say 30 salesmen in San Fernando, La Union; 40 in Baguio; etc. These were the different chapters of the union. Karon, because of the retirements, mahimo na lang 2 salesmen in La Union, 3 in Baguio etc. Because they were already very few, the union moved that they will be constituted as a single BU. They could no longer survive if they will still be considered different BUs. So they were pointing to that intervening fact that changed substantially the circumstances. Is that correct? The SC says Yes, bargaining history is taken exception to because of the intervening substantially altering historical fact. 2. GLOBE DOCTRINE

should determine the BU. That is a little over generalization, that is not accurate. 3. COMMUNITY OF INTEREST

The criteria that should determine whether this should be the BU or some other configuration is a community of interest. Whether or not the employees covered by the BU share a common interest with respect to pay, days of work, working conditions, etc. so that they can bind themselves together and have common cause with which to bargain with management. Example: You have daily paid and monthly paid ees. That does not configure to commonality of interest. Daily paid or monthly paid. The monthly paid people do not care if it is a holiday or not because they receive the same amount of pay regardless of actual number of working days a month. But a daily paid worker, you are interested in finding out the actual number of working days in a month. So the increase you are trying to get is an increase in a monthly rate if you are a monthly employee.. and so there is no commonality of interest. 4. STATUS OF WORKER'S EMPLOYMENT

For example, you are a probationary employee. You are still under a conditional employment. What is the condition? You will be a regular subject to compliance with the standards of the company during the probationary period, say 6 months. Now, if in the bargaining unit you also have regulars, you will have no commonality of interest, you will have opposing interest. Why? Because the probationary worker would readily sacrifice increase of wages provided he be granted security of tenure. Bahala na walay increase, basta ma-regular lang. What was the ruling of the SC in Belyca case? There is a lack of community of interest if the bargaining unit is the entire employee unit. Why? 1. The agricultural workers here, many of them are seasonal workers, and they do not work the whole 365 days, unlike the workers in the supermarket. 2. They (farmers) are paid on a daily basis, while the supermarket workers are mostly paid on a monthly basis. 3. There is no social intercourse. They cannot mingle with each other in order to forge a common stand; in order to exchange views. Why? Because the workers in the farm are paid there; they have their records there. They are in fact prohibited from going to the supermarket. So how can they make common cause with each other if they are socially segregated by the rules of the company itself. Therefore, this (farmer's BU) is an appropriate bargaining unit. So first, it is the appropriateness of the bargaining unit. Now, the real definition of representation.. if the employer says, "I agree with the appropriateness of the bargaining unit, there is no objection." Then the Med-Arbiter says "So you consent to the election? Sige, election!". The issue to be determined is the second part, who if, at all, will represent this bargaining unit. So you set right away the date of the election. So there are two possibilities: either the employer really knows that he is going to win in this election because he agrees to an election right away, or he is in favor of the union representation because he consents to an election. But that is very rare-- because from the business point of view, unions are additional cost, which is not a market cost. Sometimes, the SC comes up with a criteria other than those mentioned. In UP vs. Curra-Ferrer Calleja, remember there the nonteaching staff of UP wanted to include professors in their certification elections. According to them, it will simplify the relations between

The Globe Doctrine is not a doctrine of the US Supreme Court. It is just a pronouncement of the NLRB (National Labor Relations Board). But because of its wisdom, it became very popular and was used by all the states without exception and so it became a federal doctrine. If you have a general bargaining unit (which means: those employees included in the general bargaining unit have different technicals -there could be plumbers there, mechanics, electricians, etc-- there common denominator is that they are rank and file), and there is a particular group of workers with one technical specialization (i.e. plumbers), and they want to separate because now they are a substantial group (daghan na sila), and they feel that they do not get a proper representation when they are mixed with the generality of the rank and file employee. how is that to be decided? Whether there will be remaining general bargaining unit or whether there will be two: one a general bargaining unit, and the other a craft unit now made up of one particular craft. The NLRB says there should be a referendum of all the members involved and they should decide which regime should be followed -and that became known as Globe Doctrine because the ER there is the Globe Electrical Company in the US. So what is the doctrine if you really want to be precise about the Globe Doctrine? IF a general unit -- all those covered by it --- will be equally served by maintaining that gen. unit or by breaking it up into a craft unit and a gen. unit, then it should be the workers who will decide by a secret ballot what regime should be followed: multiple bargaining unit or a general bargaining unit. That is the real Globe Doctrine. But the Supreme Court just sums it up: IT IS THE WILL OF THE WORKERS THAT SHOULD DETERMINE A PARTICULAR BARGAINING UNIT. It is the choice of the workers that

the University if it will only have to deal with one union. So they want to include the professors. Second, the UP normally gives the same raise in pay and other benefits to the teaching staff, that the nonteaching staff is able to get from the UP. So you might as well represent also the teaching staff. That's their second argument. The UP opposed the lumping together of the teaching staff and nonteaching staff into one bargaining unit. The issue was brought to the SC. The SC has this clear ruling that is somehow condescending, somehow discriminatory. SC says it cannot imagine what is of common interest between the ordinary wage earner and the professors who have had long education and high degrees such as PhDs and graduate degrees. It would seem for the SC that in a tertiary level employer, it would be difficult to mingle a tertiary professor with a non-teaching staff, because there is no community of interest. The SC says that in the case of the non-teaching staff, it is the UP who determines if you become regular or not provided you meet the standards made known to you at the inception of the relation. If you meet the standards, then you become a regular. If you are a professor in UP, how do you become a tenured professor? It is not just the UP which determines that, it is your peers. There is a tenure committee, and so many criteria which will determine if you will become a tenured professor. And peculiar to that criteria is your field of expertise. Did you finish your degree in a respectable institution? What have you written or published? Where was it published? What research have you done? It is not UP that determines that, it is your peers. Because in the end, the teacher in the tertiary level is that rare employee that enjoys that double security of tenure. S/he enjoys that security of tenure in the Labor Code. And if you are a professor with tenure in the university, you are also protected by that security of tenure based on academic freedom. You cannot be disciplined because of what you teach, on the basis of the contents of what you teach. Why? Because you are supposed to be in the forefronts of knowledge. The ordinary rank and file non-teaching staff cannot possibly be together with tertiary level professors. So, can that be understood as another bargaining unit imposed by law? You know that the BU of supervisors is imposed by law; they cannot join the rank and file workers, they must form their own bargaining unit. Now, can this UP case be another one? We don't know.. this has not been answered yet. Article 256 is certification elections in organized establishments. Article 256. Representation issue in organized establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. That is the first sentence. That answers the question when is there an automatic certification election in an organized establishment? 1. If the petitioner filed it within 60 days prior to the expiration of the CBA and 2. It has the signature support of at least 25% of those covered in the BU.

Remember this is an organized establishment. They have a union representing the BU; they have a CBA, but it is about to expire. It is within the 60 day expiration date (or the so-called freedom period).. within that period, any union, as long as it is legitimate, can file a petition challenging the representation status of the incumbent who is administering the existing CBA. If he wants an automatic election, he must convince 25% of the BU to support that petition -- sign it. If he does that, then the Med-Arbiter no longer has any discretion to grant or deny the petition. He must order the conduct of certification election. That is in organized establishment. Now let us first go to Art. 257. Article 257. Petitions in unorganized establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. So, question: When you petition for certification election in an unorganized establishment a bargaining unit that has yet no exclusive bargaining agent; no existing CBA are you obliged to support that petition with signatures from employees covered by the BU? No, you are not. There is no need for any signature support, unlike the organized establishment. In unorganized, there is no need for signature support. What is the effect if you file a petition and you are a legitimate labor organization? What should the Med-Arbiter do? The Med-Arbiter should automatically order the conduct of certification election. Is that correct? Can the Med-Arbiter do that? Theoretically, yes. But before you file for a certification election, you must include the proof of service to the ER. The ER is given a copy of the petition. The ER who looks at the petition may not agree to the description of the BU, if so, he files an opposition. So the Med-Arbiter has to determine the appropriateness of the BU. That is what delays what would otherwise be by explicit command of 247, an automatic certification. That is what happened in Belyca. If the ER does not agree to the definition of the BU, mao na ang makalangan. Because the ER has a legitimate reason to intervene in the petition for certification election when it comes to the bargaining unit; when it comes to the configuration. So the answer therefore to the question: what is automatic certification election? What is the policy of automatic certification? You must distinguish your answer. In an organized establishment, this is the rule; in an unorganized establishment, this is the rule. It is not just one answer, because under the law, there are two provisions dealing with that. So we go to the IRR to see what should be the contents in a petition for certification election. Rule 8, Sec. 4: Form and Contents of a certification election. Sec. 4. The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where the petition is filed by a federation or national union, it shall be verified under oath by the president or its duly authorized representative. So that is as to form. So if it is in writing, that is not sufficient. It must be verified. What do you mean by verified-- pag verified gani, notarized na, because you execute a verification.

" I, Juan de la Cruz, of legal age, resident of Davao City, having been sworn in accordance with law, do hereby depose to say: x x x 1) That I am the president of XYZ union of ABC Corporation; 2) That I have caused the above petition for certification to be drawn up and I have read the same and the contents thereof are true of my own personal knowledge. In witness thereof, I hereby set my hand on this day x x x" That is verified. If there is no verification, iuli na sa DOLE, dili na idismiss. If it is not in correct form, it is as if there was no petition that was filed. So what are the contents? The petition shall contain the following: (a) the name of petitioner, its address, and affilitaion if appropriate, the date and number of its certificate of registration. If the petition is filed by a federation or national union, the date and number of the certificate of registration or certificate of creation of chartered local; (b) the name, address and nature of employer's business; (c) the description of the bargaining unit What could be a possible description? Daily paid production regular workers of ABC Corporation. Klaro. Mga daily na sila, naa sa production, regular na sila -- walay labot ang probationary why? Because status is included in the determination, diba? So you do not include different status. Now, is that final? NO. The Med-Arbiter has to rule on that. That is tentative, and the Med-Arbiter will conduct hearing. He will ask Management, "why do you oppose? Submit a memorandum"; "Union, why is this your bargaining unit, submit a memorandum." So, this is always tentative. (d) the approximate number of employees in the bargaining unit; (e) the names and addresses of other legitimate labor unions in teh bargaining unit; (f) a statement indicating any of the ff. circumstances: 1) that the bargaining unit is unorganized, or there is no registered collective bargaining agreement covering the employees in the bargaining unit; 2) if there exists a duly registered collective bargaining agreement, that the petition is filed within the sixty-day period of such agreement; or 3) if another union had been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed ouside the oneyear period from entry of voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon. (g) in an organized establishment, the signature of at least 25% of all employees in the appropriate bargaining unit shall be attached to the petition at the time of its filing; and (h) other relevant facts. Now, the question is: when does the description of the bargaining unit become final? It becomes final upon the order to hold a certificate election. You go now to Sec. 13, Rule 8: Sec. 13. Order/Decision on the petition- Within 10 days from the date of the last hearing, the Med-Arbiter shall issue a formal order granting the petition or a decision denying the same. In organized establishments, however, no order or decision shall be issued by the Med-Arbiter during the freedom period. (To give the chance to other unions) The order granting the conduct of a certification election shall state the following:

(a) the name of the employer or establishment; (b) the description of the bargaining unit; (c) x x x That is the bargaining unit! Is that final bargaining unit? Is that already really the final decision on the bargaining unit? YES, IF THERE IS NO APPEAL. But if there is an appeal, like in Belyca, then there is a possibility that it will be changed or amended by the higher authorities like the Sec. of Labor or the SC just like in Belyca. Now, the description of the bargaining unit REALLY becomes final in the order certifying the labor organization that has won the certification election. Take a look at Sec. 20 of Rule 9: Sec. 20. Proclamation and certification of the result of the election. Within 24 hours from final canvass of votes, there being a valid election, the Election Officer thsall transmit the records of the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and the results of election, issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid votes cast as the sole and exclusive bargaining agent in the subject bargaining unit, under any of the following conditions: (a) no protest was filed, or even if one was filed, the same was not perfected within the 5 day period for perfection of the protest; (b) no challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the elections. The winning union shall have the rights, privileges and obligations of a duly certified collective bagaining agent from the time the certification is issued. Where the majority of the valid votes casts results in "No Union" obtaining the majority, the Med-Arbiter declare such fact in the order. So again, there is a description of the bargaining unit in the certification order. This is where you look at the bargaining unit. These are the primary evidence you will look as evidence of what is the bargaining unit. Why is it important to determine the BU? Because the BU is the final authority. The BU is the principal, the union is only the agent. So it is important to know who the principal is. So we know the documents to look for. So let us ask the question of WHO SHALL FILE A PETITION FOR CERTIFICATION ELECTION? Take a look at Rule 8, Sec 1. Sec. 1: Who may file-- Any legitimate labor organization may file a petition for certification election. So it says any. Now, is that the only one who can file? Take a look at Art. 258 of the Labor Code. Art. 258. When an employer may file the petition When requested to bargain collectively, an employer may file a petition for certification election with the Regional Office. If there is no existing registered collective bagaining agreement in the bargaining unit, the Regional Office shall, after hearing, order the conduct of a certification election. (Note: this is the 2nd paragraph of Sec 1, Rule 8)

All certification cases shall be decided within twenty (20) working days. The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor. Okay, what is the scenario here? Here is, let us say, the general manager of an establishment, one morning naa nay naghuwat nga mga tao sa iya sa iyang office. "Sir, we have this letter to you.. mao ni ang president sa federation of free workers, mao ni ang vice president, tapos ako ang president sa local. They and us, we are now a Union -- we are legitimate, we are legitimate. And we have everybody. Here is the list of our members. All the production workers amo na tanan.. nagpirma na sila dinhi. So mao ni among proposal sa CBA. Pwede ba nato na sabot-sabuton kay dili pa man na final.. let us sit down and bargain" Now, the ER, walay kalibutan is now being asked to bargain. Now, siguro ba sya na this is the representative of the whole BU? Wala naman sya'y mahimo.. is he forced to sit down? The law gives him a leeway when he is requested to bargain collectively, an er MAY file a petition for certification election. The operative word there is MAY ha.. he MAY file a petition. Mahimo man sad na nga the ER will say, "Pasaylu-a lang ko pero wala man jud ko kaila ninyo.. Unsaon man nako pagkabalo nga kamo ang gadala sa tingog sa workers." Then muingon ang Union (kuno), "Gipili man mi sa trabahante.. giila man mi nila". So ER will say " Na! Wa man ko didto pagpili sa inyo.. wala jud ko kabalo kung kamo ba ang gipili. Maong di sa ko makigsabot sa inyo." Is he obliged to file a petition? The law just says he may file if he wants to find out. Pero buang-buang ka if you file a petition for certification election. Kung ako, dili jud ko mu-file. But the law gives the ER that very rare opportunity to file a petition for certification election when he is requested to bargain collectively. Now, here is my postulate: Aside from the legitimate labor organization and the ER, it is my submission that 25% of the BU in an organized establishment, may file a petition for de-certification election during the 60 day freedom period of an organized establishment. Why? It is not explicit in the Labor Code, but a de-certification election is a proceeding that is recognized by the Supreme Court. It is in LVN vs. Phil Musician's Guild.. a petition for de-certification. Now, this is the situtation: It is an organized establishment. The workers have been under a regime of CBA and then they find it negative actually. So during the freedom period, they are supposed to be free to choose another representative, not the existing bargaining representative. Or, they are also free to go back to a regime where there is no union, because the right to self-organization also includes the right not to join a union. So the 25% there who signed are included in the BU and they want another contest between an existing representative and no union. Mao nay pilian.. dili na a new union vs. the existing representative. The premise is that people want to continue representation. But in this de-certification election, the premise is, the people who are asking for the election want to get out of the representation status. They don't want a union. Is that allowed? It is recognized. It is recognized in US jurisprudence; by our SC in LVN vs. Phil Musician's Guild, and there is a new case last year, Burger King. It has to be recognized if the freedom period is a

true freedom period. Otherwise, it is not freedom. Because the freedom that the law talks about is the right to form, join or assist a labor organization of you own choice, or not to join any labor organization at all. I don't know whether your commentaries discuss a de-certification election. Acuzena does not discuss that, nor Robles Chan. But that is a legal necessity. So that is another species of certification election -- a petition for de-certification election. It is filed, not by a union, not by the ER, but by a group of EEs belonging in the BU. Now, why do I insist 25%? Because if it is 25%, then the Med-Arbiter no longer has discretion to deny it. It becomes automatic decertification election. But if it is less than 25%, he can deny it by saying that "you have no personality. It should be the union who will file a petition for de-certification election. First, organize yourselves as a union." But precisely that is why we are petitioning because we do not want to have a union. Therefore it has to be 25% because that is the number that removes the discretion from the Med-Arbiter. It becomes automatic. Now where should the petitioner file the petition for certification election? Under Rule 8, Sec. 2 Section 2. Where to file. - A petition for certification election shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local. The petition shall be heard and resolved by the Med-Arbiter. Where two or more petitions involving the same bargaining unit are filed in one Regional Office, the same shall be automatically consolidated with the Med-Arbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. Now, this is a little bit more confusing. It says here that a petition for certification election shall be filed with the Regional Office which issued the petitioning union's certificate of registration/certificate of creation of chartered local. That is a little bit confusing because if the original union where the city where it is licensed suddenly the workplace there no longer exists because it is just a small workplace outside the city where the license or certificate was issued, then this rule will not apply. What is important to remember is the old rule, which is, the Regional Office which has jurisdiction over the workplace. That is where you file the petition. We saw the contents (SEC 4), then there is a raffling of the case (SEC. 5) just like in the RTC or the MTC, the case is raffled after it is filed. Sec. 6 - There is a notice of preliminary conference immediately after the raffle of the case. Section 6. Notice of preliminary conference. - Immediately after the raffle of the case or receipt of the petition, the same shall be transmitted to the Med-Arbiter, who shall in the same instance prepare and serve upon the petitioning party a notice for preliminary conference. The first preliminary conference shall be scheduled within ten (10) days from receipt of the petition. Within three (3) days from receipt of the petition, the Med-Arbiter shall cause the service of notice for preliminary conference upon the employer and incumbent bargaining agent in the subject bargaining unit directing them to appear before him/her on a date, time and

place specified. A copy of the notice of preliminary conference and petition for certification election shall be posted in at least two conspicuous places in the establishment. That is for purposes of informing the EE that are covered within the bargaining unit. Now, if there is any other labor organization that wishes to partake or participate in the certification election, he files a motion for intervention. And he is called an intervenor. And intervenors are numbered according to who was the earliest to file the motion for intervention after the petitioner. Now it is very important, as to the order of filing the motion for intervention. Why? Because later on, in the vote-- in the ballot, you are arranged according to order of filing. 1. Petitioner, 2. Intervenor 1 or forced intervenor , 3. Intervenor 2 and so on. In an organized establishment, when there is an incumbent collective bargaining representative with a CBA, cooling off period (60 days) -there is another union that files a petition for certification. The incumbent union is called a forced intervenor; he is sent a notice of the petition in the same manner and in the same day as the employer. So he is forced to intervene. The employer is forced to respond. Now, the preliminary conference, according to Sec. 9 of Rule 8. Section 9. Preliminary Conference; Hearing. - The Med-Arbiter shall conduct a preliminary conference and hearing within ten (10) days from receipt of the petition to determine the following: (a) the bargaining unit to be represented; (b) contending labor unions; (c) possibility of a consent election; (d) existence of any of the bars to certification election under Section 3 of this Rule; (This is when petition for certification election cannot be accepted) and (e) such other matters as may be relevant for the final disposition of the case. Section 10. Consent Election; Agreement. - In case the contending unions agree to a consent election, the Med-Arbiter shall not issue a formal order calling for the conduct of certification election, but shall enter the fact of the agreement in the minutes of the hearing. The minutes of the hearing shall be signed by the parties and attested to by the Med-Arbiter. The Med-Arbiter shall, immediately thereafter, forward the records of the petition to the Regional Director or his/her authorized representative for the determination of the Election Officer by the contending unions through raffle. The first pre-election conference shall be scheduled within ten (10) days from the date of entry of agreement to conduct consent election. That means that there is no longer any issue as to the bargaining unit. There is no longer any issue as to the contending union-- all will participate. Let us say that there is a consent election agreement, may an additional union still be allowed to participate in the certification election after the agreement of consent election? Can there still be? The answer is YES, for as long as the date of the election has not been set. For as long it is still before the set date of the election, a union who files a motion of intervention is normally accommodated should be accommodated. What happens if the contending unions fail to agree and the management refuses to accept the description of the bargaining unit?

Section 11. Number of Hearings; Pleadings. - If the contending unions fail to agree to a consent election during the preliminary conference, the Med-Arbiter may conduct as many hearings as he/she may deem necessary, but in no case shall the conduct thereof exceed fifteen (15) days from the date of the scheduled preliminary conference/hearing, after which time the petition shall be considered submitted for decision. The Med-Arbiter shall have control of the proceedings. Postponements or continuances shall be discouraged. Within the same 15-day period within which the petition is heard, the contending labor unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions of time shall not be entertained. All motions shall be resolved by the Med-Arbiter in the same order or decision granting or denying the petition. What happens if parties are absent during the hearing despite notice? Section 12. Failure to appear despite notice. - The failure of any party to appear in the hearing(s) when notified or to file its pleadings shall be deemed a waiver of its right to be heard. The Med-Arbiter, however, when agreed upon by the parties for meritorious reasons may allow the cancellation of scheduled hearing(s). The cancellation of any scheduled hearing(s) shall not be used as a basis for extending the 15-day period within which to terminate the same. So, once there is a determination of these issue-- the BU, contending labor unions, and the order is already issued to hold the certification election and the date is set.. in the case of an unorganized establishment, management can appeal the order because that is already a final determination of the petition. Now, if there is no appeal, then there is what is called "election hearing" the so-called "inclusion or exclusion hearings". In other words, the Med-Arbiter will say, "Union, you submit to us the actual names of the workers within the BU." Then management will be asked to comment and he will not agree.. X is not included, he is outside; also Y, he is not regular. So there will be a hearing as to who is included and who is excluded. So that is called exclusion and inclusion proceeding. Now, take a look at Rule 9, Sec. 5 Section 5. Qualification of voters; inclusion-exclusion. - All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election. In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule. All employees who are members of the appropriate bargaining unit -TAKE A LOOK AT THIS BECAUSE THIS IS A FUNDAMENTAL MISTAKE, BECAUSE A BARGAINING UNIT IS NOT AN ORGANIZATION, IT IS A CONFIGURATION OR AGGRUPATION OF WORKERS, THE UNION IS AN ORGANIZATION. YOU ARE A MEMBER OF A UNION, BUT IF IT IS A BARGAINING UNIT, YOU ARE EITHER INCLUDED OR EXCLUDED.

So at the very least, if there are those who are included in the bargaining unit but are in the meantime already dismissed, and the union questions their dismissals. Their votes shall be segregated but they are allowed to vote. If there is a doubt, what is the tendency? To resolve the doubt, the tendency is -- it is for the right of the exercise of right of self-organization. So when several of the ees are under question, you will be allowed to vote but your votes will be segregated. If the result of the unsegregated votes already show a clear victory and even if the segregated votes will be counted in favor of the loser and still it will not change the outcome, then there really is no issue anymore to resolve the doubt. So duha ka-union nagkontra: A ug B. May biya si B ug 50 votes, ang katong contested 5 ra kabuok, bisag ihatag pa na sa pikas kanang 5, then kita na ang end results. Listen to this: In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule. That is what is meant. Now, suppose the union and management could not agree as to who should be included in the BU; there is a disagreement. There was an old rule before that the roster of employee two months before the filing of a petition for certification election should be determinative as an objective criteria as to who is included in the BU. That is still followed now as a rule of thumb. Although the rule now is that those contested, even in and out of the BU should be segregated and be allowed to vote. And only when they are material to the decision of the results of the election will they be counted and resolved. So there will be a posting of notice in two conspicuous places (Sec. 6) Section 6. Posting of Notices. - The Election Officer shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company premises. The notice shall contain: (a) the date and time of the election; (b) names of all contending unions; (c) the description of the bargaining unit and the list of eligible and challenged voters. The posting of the notice of election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer. The purpose of the notice? The order to hold a certification election is there plus the names of all those who are supposed to be included in the BU. So all those within the BU are apprised that their BU must choose w/n it will have representation and who will be the representative, if they should choose to be represented. And then the election officer of DOLE will go to the place and there will be a setting up of polling places, preparation of the ballot, etc. Now, this becomes very relevant if you have a very large workplace, like TADECO. That is 20,000 has -- 5 farms! And each farm will have two polling places. Now, dili man na mahimo na dili simultaneous. If you don't do the voting simultaneously, manawag na tong sa HQ, musulti human na sila ug kinsa daog didto, dili na lang ka muboto.

But if you are just a small workplace, let's say NCCC. There is no contest. But if you have a big workplace like DOLE, then you will have simultaneous voting (dapat). Now, if you have many workers, there will be an agreement as to identification. They will present their IDs. Then they will vote. What happens if their id's are all gone? Kanang sa mga kilid nga lugar, panguhaon ug pangbayaran man na nila.. lahi tao man muboto.. unsaon man na? So there will be challenges.. right in the polling place, the representative of one union and the other union will be there, they will be challenge. Dili ni sya mao sa ID! So what happens? His vote will be segregated, and the challenge will be recorded in the minutes of the election proceedings. And the challenges/protest according to Sec. 13: Section 13. Protest; when perfected. - Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings. Protests not so raised are deemed waived. The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped. So if there is any party who votes and you are challenging there, important that it must be recorded first in the minutes of the proceedings, and after it is recorded it is formalized within 5 days from the close of the proccedings. Then we have the canvassing of the ballots. Sec. 14 Section 14. Canvassing of votes. - The votes shall be counted and tabulated by the Election Officer in the presence of the representatives of the contending unions. Upon completion of the canvass, the Election Officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the Election Officer and the representatives of the contending unions and transmitted to the Med- Arbiter, together with the minutes and results of the election, within twenty-four (24) hours from the completion of the canvass. Where the election is conducted in more than one region, consolidation of results shall be made within fifteen (15) days from the conduct thereof. Now, that is also a final order and that can be appealed to the Sec. of Labor or to the Director of the BLR. So, I suggest you read very well Rule 8 and Rule 9 so you have the mechanics of the voting process. Now, what is a run-off election? First, the red letter of the law: Article 256. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. There are several requisites for a run-off election. 1) There must be a valid election. When is there a valid election? IF 50%+1 of the eligible voters of the BU cast their votes. If there are 100 eligible voters, 51 must cast their ballots.

Now, who wins in the certification elections? Remember that it is not plurality ha! In the national or local elections, it is plurality -- one who has the highest number of votes. But here, it must be majority of the valid votes cast. The particular choice is that who obtains the majority of the valid votes cast. That means know the category of the votes cast. Out of the votes cast, you have the valid and invalid votes. Invalid votes will constitute as marked ballots; stray ballots. All rules in election laws are applicable here. So only the valid votes counts. Majority of the valid votes cast wins the election. 2) 3) 4) There must be at least three choices; none of the choices obtained majority of the valid votes cast The sum total of the votes received by all contending unions must be at least 50% of the number of votes cast.

any labor organization whenever the status of the labor organization is challenged on the basis of 245 of the LC. So, technically speaking, no Motion To Dismiss a labor union's petition can be accepted just because there are non-EEs or nonmembers included in the union. But once you have managerial EEs therein, the SC says that that petitioning body is no longer a union because managers are absolutely prohibited from joining a union. It has no personality to file [a petition]. Remember that under the rules, the only way you can dismiss a petition is if the list of chapters of that federation does not contain that local. Then you can outright dismiss it. Otherwise, it will be considered a challenge to the personality [of the union] -- a collateral attack -- which is not allowed. You must file a separate action to nullify or cancel the registration of the union. The exception is Dunlop vs. Sec. There is a managerial EE that is alleged to belong, and he is admitted as a managerial EE, then the petition can be dismissed outright. Of course the dismissal is without prejudice, you can still file a petition subsequently. But that is one of the instances when you can dismiss outright a petition and that will not be considered a collateral attack. All the more reason, federation ka, you file a petition for and in behalf of the local, pagtan-aw sa roster of union, there is no such federation, you can be dismissed right away. The law says only legitimate labor organizations can file a petition for certification election. That is not considered as collateral attack. Please just go over the rules because these are very important. There is another rule that was just in the website of the DOLE amending some of the provisions here. The moment a chapter or a local has submitted all the requirements, it is deemed to have perfected its personality for purposes of filing a petition for certification election, even if it has not been okayed by the DOLE. DOLE will give you a certificate for purposes of filing. That is a new rule.

So you have to distinguish between valid votes cast and votes cast. Valid votes cast is material for who wins the election. And votes cast is material for determination of run-off election. Take note one result of an election is that somebody wins, diba? Another result of an election is a run-off election. So there will be another election, and that will be between the two highest choices. That is a run-off election. A third possibility of an election is a failure of election. That is Sec. 17 of Rule 9: Section 17. Failure of election. - Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings. There will be another election. So question, is a second certification election necessarily a run-off election? It depends on how you answer it. Because a failure of election means that there was really no election. That is why you hold another certification election that is valid.. that is really [now] the first election. If a valid election does not result in any choice receiving majority of the valid votes cast and there are more than 3 choices, and the sum total of the votes cast in favor of the union is more than 50% , then there is run-off election. That is a second valid election between the two highest choices. Now, here is the problem. Suppose the certification election has only two choices: between a union and no union, and then all the votes are valid. And the result is even. Who wins? Status quo. You go back to no union because the winner in an election is one who obtains majority of the valid votes cast. That is 50%+1. That election is valid. There is no run-off election and there is no second election because there is no failure of election. So this is the fourth possibility that can result in an election. There is an honest to goodness tie. That will result in the [maintaining of the] status quo. I would just like to bring out to you because somewhere in the rules it says that any question of inclusion in the union petitioning or intervening in a certification election should be threshed out in an inclusion/exclusion proceeding. That is what the rule says. However the SC has come up with a decision in Dunlop vs. Secretary 300 SCRA 120 (1998): The SC says that a union composed of both rank and file and supervisory EEs is no labor organization at all. It becomes necessary therefore, anterior to the granting of an order allowing a certification election, to inquire into the composition of

END OF 1st EXAM COVERAGE

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