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160-A Phil.

418

FERNANDO, J.:
The plea for setting aside a certification election earnestly and vigorously pressed by petitioner in
this certiorari and prohibition proceeding is predicated on the proposition that it was held under
circumstances that manifested lack of fairness, thus raising a procedural due process question. There
was an equally firm and vehement denial in a comprehensive comment filed on behalf of private
respondent, National Union of Garments, Textile, Cordage and Allied Workers of the Philippines. The
stress in the comment of respondent Director Carmelo Noriel[1]was on the absence of a grave abuse of
discretion. As will be more fully discussed, a careful scrutiny of what transpired as revealed not only in
the pleadings but in the oral argument will disclose that the attack on the certification election cannot
succeed. The petition lacks merit.

The petition sought to have the certification election declared null and void ab initioand thus
unenforceable, alleging that the contending parties in a pre-election conference conducted by the
Bureau of Labor Relations agreed that petitioner would be listed in the ballot as United Employees
Union of Gelmart Industries Philippines (UEUGIP).[2] In the notice of the certification election,
however, it was wilfully deleted and replaced by "a non-contending party, namely, Philippine Social
Security Labor Union (PSSLU), which, although an existing labor federation * * * has nothing to do
and has no interest or right of participation [therein] ."[3] So it did appear likewise in the sample ballot.
[4] As a result, there was confusion in the minds of independent voters and demoralization in the ranks
of those inclined to favor petitioner.[5] There was a protest but it was not based on this ground; instead,
the grievance complained of referred to the alleged electioneering of nuns and a priest as observers or
inspectors on behalf of private respondent.[6] The above notwithstanding, the certification election
took place "on the scheduled date, May 24, 1975 and respondent GATCORD garnered the highest
number of votes * * * ."[7]It was then set forth that despite such defect in the mode of conducting the
election which for petitioner sufficed to cause "the nullity of the election in question," respondent
Director Carmelo Noriel of the Bureau of Labor Relations "[was] about to certify respondent
GATCORD as the sole and exclusive collective bargaining representative of the rank and file
employees [and] workers of Gelmart Industries Philippines, Inc."[8] Hence this petition with its
overtones as indicated of an alleged violation of procedural due process.

The comment to the petition filed on behalf of private respondent National Union of Garments, Textile,
Cordage and Allied Workers of the Philippines (GATCORD) denied the imputation of irregularity and
sought to clarify matters by a factual presentation of what did transpire. At the outset, however, it made
clear that the petitioner, which garnered only 291 votes or 4.5% of the total number of votes cast as
against the 3,970 or 63% of the votes in its favor, certainly could not be heard to challenge the validity
of the certification election. Thus: "1. Pusuant to an order of the Bureau of Labor Relations of the
Department of Labor, a certification election was conducted on 24 May 1975 in Gelmart Industries
Philippines, Inc., South Superhighway, Paraaque, Rizal, to choose the collective bargaining agent of
the company's rank and file employees; 2. The certification election was conducted and supervised by
the Bureau of Labor Relations; it took almost the entire personnel of the Bureau, including the Director
himself, to man the election; there were 11 precincts, each of which was presided over by a med-arbiter
of the Bureau, as chairman, and another representation officer of the Bureau; there was also created a
central election committee composed of four top personnel of the Bureau for optimum supervision; 3.
There were some 8,900 eligible voters out of about 10,000employees of the company; out of the 8,900
eligible voters, duly agreed upon by all the parties and approved by the Bureau, 6,309 or 79.7% voted;
out of the 6,309 votes cast, 3970 or 63% went to GATCORD, [with UEUGIP placing] only fifth with a
measly 291 votes or barely 4.5% of the total number of votes cast. It may be noted that even if the
votes of all seven losing unions [were added], their total would only be 2,057, which is still 1,823 votes
short of GATCORD's 2,970 votes. It is thus clear that GATCORD won by an overwhelming
majority."[9] It characterized such votes as an "unassailable majority."[10] On the question of the
alleged irregularity, the comment set forth the following: "Petitioner UEUGIP did not lodge any protest
concerning the alleged misprinting or omission of its name in the Notice of Certification Election in the
Sample Ballot * * * before the election, during the election or shortly after the election, [but merely
questioned] the presence of the priests and nuns, over which it filed a protest with the BLR, [not the
alleged misprinting] or omission of its name in the election notice and the sample ballot; 10. The fact
is, when GATCORD petitioned for the certification election (NLRC Case No. LR-4891, later numbered
as BLR Case No. 256) in July, 1974, the United Employees Union of Gelmart Industries Philippines
(UEUGIP) intervened, as represented by Ruben Escreza, the union's duly elected president, [with]
Antonio Diaz, herein alleged representative of UEUGIP, [intervening] then not for UEUGIP but for
UEUGIP-Worker's Faction; 11. Since Mr. Diaz was representing only a faction of UEUGIP, which
faction had no legal personality separate from UEUGIP which was duly represented by Mr. Escreza,
the order of the Bureau dated 15 January 1975 included only UEUGIP as one of the contending unions,
without including UEUGIP-Workers' Faction; 12. Subsequently, the Philippine Transport and General
Workers Organization (PTGWO) intervened and, claiming that UEUGIP had affiliated with PTGWO,
moved for a correction of the name UEUGIP in the order, making it UEUGIP-PTGWO, * * *; 13.
During the first two pre-election conferences in connection with the certification election held on
February 14 and 17, 1975, Mr. Diaz appeared, but he was no longer representing UEUGIP-Workers'
Faction; he entered a new union the Philippine Social Security Labor Union (PSSLU); * * * 14. In the
succeeding pre-election conferences, however, Mr. Diaz, apparently out to create trouble, began
claiming to represent UEUGIP and abandoned representation of PSSLU [with the result that] UEUGIP
had two representatives often clashing with each other; Mr. Escreza and Mr. Diaz; 15. On 19 May
1975 the Bureau of Labor Relations caused the posting of 'Notice of Certification Election' with a
'Sample Ballot', [with said posting being made at a time when] the parties had not yet agreed as to how
their names should appear in the ballot, * * * 16. It was only on 20 May 1974, after the election notice
was already posted with the original sample ballot, that the parties came to discuss how their respective
names should appear in the ballot, [at which time] the parties had agreed that the names of the
contending unions should be printed in the ballots as they were printed, that is, with UNITED
EMPLOYEES UNION OF GELMART INDUSTRIES PHILIPPINES (UEUGIP) there and without
PSSLU."[11] Private respondent then considered the following as the pertinent questions: "If Mr. Diaz
felt that the posting of the election notice and the original sample ballot was erroneous and it was
prejudicial to his group, why did he not raise this question early enough? He could have raised it soon
after the posting was made, especially considering that two more pre-election conferences, on May 20,
22 and 23 were held. Or he could have raised the question during the election day. But he did not. Is
it because he did not really care then, is it because his people inside the company did not really care, or
is it because he had really no people inside to bother at all about said 'error?' If they were that
disinterested in correcting the 'error' at least during the last four days before the election, how could Mr.
Diaz claim now that his group was adversely affected by the alleged 'error' and that if said 'error' was
not made, his group could have won the election?"[12] The comment ended on a statement rather
rhetorical in character: "The truth is, Mr. Diaz had but a droplet of support, which, dream as he would,
could never match, much less overcome, the raging torrents of GATCORD."[13] The comment on
behalf of respondent Director Noriel and the respondent Representation Officer Eduvala stressed a
grave abuse of discretion to certify an action for certiorari. Petitioner sought permission to reply and
was granted. There was, as could be expected, a stout denial of the recital of facts of private
respondent, but it cannot be said that it is impressed with a high degree of persuasiveness.
At any rate, after the Court considered the comments as answers and set the case for hearing, with
arguments coming from both counsel Benito Fabie for petitioner and Jose W. Diokno for private
respondent, and with the labor leader Antonio Diaz referred to in the comment of private respondent
being questioned and presenting petitioner's side of the controversy, a much clearer picture emerged. It
was none too favorable for petitioner.

As noted at the outset, we find for respondents. The petition lacks merit.

1. The institution of collective bargaining is, to recall Cox, a prime manifestation of industrial
democracy at work. The two parties to the relationship, labor and management, make their own rules
by coming to terms. That is to govern themselves in matters that really count. As labor, however, is
composed of a number of individuals, it is indispensable that they be represented by a labor
organization of their choice. Thus may be discerned how crucial is a certification election. So our
decisions from the earliest case of PLDT Employees Union vs. PLDT Co. Free Telephone Workers
Union[14] to the latest, Philippine Communications, Electronics & Electricity Workers' Federation
(PCWF) vs. Court of Industrial Relations,[15]have made clear. Thus in one of the earliest cases, The
Standard Cigarette Workers' Union vs. Court of Industrial Relations,[16] it was made clear in the
opinion of Justice J. B. L. Reyes that "a complaint for unfair labor practice may be considered a
prejudicial question in a proceeding for certification election when it is charged therein that one or
more labor unions participating in the election are being aided, or are controlled, by the company or
employer. The reason is that the certification election may lead to the selection of an employer-
dominated or company union as the employees' bargaining representative, and when the court finds that
said union is employer-dominated in the unfair labor practice case, the union selected would be
decertified and the whole election proceedings would be rendered useless and nugatory."[17] For it is
easily understandable how essential it is, in the language of former Chief Justice Concepcion, in the
leading case of LVN Pictures vs. Philippine Musicians Guild[18] "to insure the fair and free choice of
bargaining representatives by employees."[19] There must be such an opportunity to determine which
labor organization shall act on their behalf.[20] It is precisely because respect must be accorded to the
will of labor thus ascertained that a general allegation of duress is not sufficient to invalidate a
certification election; it must be shown by competent and credible proof.[21] That is to give substance
to the principle of majority rule, one of the basic concepts of a democratic polity.[22] The matter is
summarized thus in one of the latest decisions of this. Court, Federation of the United Workers
Organization vs. Court of Industrial Relations:[23] "The slightest doubt cannot therefore be entertained
that what possess significance in a petition for certification is that through such a device the employees
are given the opportunity to make known who shall have the right to represent them. What is equally
important is that not only some but all of them should have the right to do so."[24] If heed be paid to
the above well-settled principle and applied to the facts disclosed in the present petition, it would be
apparent that the grievance spoken of is more fancied than real, the assertion of confusion and
demoralization based on conjecture rather than reality. The mode and manner in which Antonio Diaz
demonstrated how militant and articulate he could be in presenting his side of the controversy could
hardly argue for the accuracy of his claim that his men did lose heart by what appeared at the most to
be an honest mistake, if it could be characterized as one. Certainly then, the accusation that there was
abuse of discretion, much less a grave one, falls to the ground.

2. Nor need this Court pass upon the ground of protest based on the alleged participation by nuns and a
priest who presumably aided the cause of private respondent. Petitioner did not choose to press this
point. It is understandable why. In the leading case of Victoriano vs. Elizalde Rope Workers' Union,
[25] this Court, through Justice Zaldivar, left no doubt as to the primacy of religious freedom, to which
contractual rights, even on labor matters, must yield, thus removing any taint of nullity from the
amendment to the Industrial Peace Act,[26] which would allow exemption from a closed shop on the
part of employees, members of a given religious sect prohibiting its devotees from affiliating with any
labor organization. Subsequently, in Basa vs. Federacion Obrera de la Industria Tabaquera,[27] such
doctrine was reaffirmed, thus emphasizing that one's religious convictions may be the basis for an
employee joining or refusing to join a labor union. Certainly, the wide latitude accorded religious
groups in the exercise of their constitutional freedom would caution against reliance on such a ground
to invalidate a certification election. It thus appears that such an approach is reflected in the attitude
adopted by petitioner, which in effect amounts to an abandonment of such a possible ground of protest,
not at all lodged with this Court but merely mentioned in its recital of background facts.

3. During the hearing of this case, reference was made to the registration of private respondent
allegedly having been revoked. As the pleadings do not touch upon the matter at all, this Court is not in
a position to rule on such a question. The decision therefore leaves that particular aspect of the
litigation open.

WHEREFORE, the Petition for certiorari and prohibition is dismissed for lack of merit. The
restraining order issued by this Court is lifted. This decision is immediately executory. No costs.

Barredo, Antonio, Aquino, and Martin, JJ., concur.

Concepcion, Jr., J., on official leave.


G.R. No. 97622

ROMERO, J.:
This petition for certiorari seeks to nullify and set aside the decision dated January 31, 1991 of the
Secretary of Labor which reversed on appeal the Order dated December 20, 1990 issued by Med-arbiter
Rolando S. de la Cruz declaring petitioners as the duly-elected officers of the Universal Robina Textile
Monthly Salaried Employees Union (URTMSEU) as well as the Order dated March 5, 1991 denying
petitioner Catalino Algire's motion for reconsideration.
The case arose out of the election of the rightful officers to represent the union in the Collective
Bargaining Agreement (CBA) with the management of Universal Robina Textile at its plant in Km. 50,
Bo. San Cristobal, Calamba, Laguna.
Universal Robina Textile Monthly Salaried Employees Union, (URTMSEU), through private
respondent Regalado de Mesa, filed on September 4, 1990 a petition for the holding of an election of
union officers with the Arbitration Branch of the Department of Labor and Employment (DOLE).
Acting thereon, DOLE's med-arbiter Rolando S. de la Cruz issued an Order dated October 19, 1990
directing that such an election be held.
In the pre-election conference, it was agreed that the election by secret ballot be conducted on
November 15, 1990 between petitioners (Catalino Algire, et al.) and private respondents (Regalado de
Mesa, et al.) under the supervision of DOLE through its duly appointed representation officer.
The official ballot contained the following pertinent instructions:

"Nais kong pakatawan sa grupo ni:

LINO ALGIRE REGALADO

and DE MESA

his officers and his officers

1. Mark check (/) or cross (x) inside the box specified above who among the two
contending parties you desire to be represented for the purpose of collective bargaining.

2. This a secret ballot. Don't write any other markings."[1]

The results of the election were as follows:


Lino Algire group - 133

Regalado de Mesa group - 133

Spoiled - 6

Total votes cast - 272


On November 19, 1990, Catalino Algire filed a Petition and/or Motion (RO 400-9009-AU-002), which
DOLE's Med-Arbitration unit treated as a protest, to the effect that one of the ballots wherein one voter
placed two checks inside the box opposite the phrase "Lino Algire and his officers," hereinafter referred
to as the "questioned ballot," should not have been declared spoiled, as the same was a valid vote in
their favor. The group argued that the two checks made even clearer the intention of the voter to
exercise his political franchise in favor of Algire's group.
During the scheduled hearing thereof, both parties agreed to open the envelope containing the spoiled
ballots and it was found out that, indeed, one ballot contained two (2) checks in the box opposite
petitioner Algire's name and his officers.
On December 20, 1990, med-arbiter de la Cruz issued an Order declaring the questioned ballot valid,
thereby counting the same in Algire's favor and accordingly certified petitioner's group as the union's
elected officers.[2]
Regalado de Mesa, et al. appealed from the decision of the med-arbiter to the Secretary of Labor in
Case No. OS-A-1-37-91 (RO 400-9009-AU-002). On January 31, 1991, the latter's office granted the
appeal and reversed the aforesaid Order. In its stead, it entered a new one ordering "the calling of
another election of officers of the Universal Robina Textile Monthly Salaried Employees Union
(URTMSEU), with the same choices as in the election of 15 November, 1990, after the usual pre-
election conference."[3]
Director Maximo B. Lim of the Industrial Relations Division, Regional Office No. IV of the DOLE set
the hearing for another pre-election conference on March 22, 1991, reset to April 2, 1991, and finally
reset to April 5, 1991.
Catalino Algire's group filed a motion for reconsideration of the Order. It was denied for lack of merit
and the decision sought to be reconsidered was sustained.
Algire, et al. filed this petition on the following issues:
"(1) the Secretary of Labor erred in applying Sections 1 and 8 (6), Rule VI, Book V of the
Rules and Regulations implementing the Labor Code to the herein case, considering that
the case is an intra-union activity, which act constitutes a grave abuse in the exercise of
authority amounting to lack of jurisdiction.

(2) the assailed decision and order are not supported by law and evidence."

with an ex-parte motion for issuance of a temporary restraining order, alleging that the assailed
decision of the office of the Secretary of Labor as public respondent is by nature immediately
executory and the holding of an election at any time after April 5, 1991, would render the petition moot
and academic unless restrained by this Court.
On April 5, 1991, we issued a temporary restraining order enjoining the holding of another election of
union officers pursuant to the January 31, 1991 decision.[4]
There is no merit in the petition.
The contention of the petitioner is that a representation officer (referring to a person duly authorized to
conduct and supervise certification elections in accordance with Rule VI of the Implementing Rules
and Regulations of the Labor Code) can validly rule only on on-the-spot questions arising from the
conduct of the elections, but the determination of the validity of the questioned ballot is not within his
competence. Therefore, any ruling made by the representation officer concerning the validity of the
ballot is deemed an absolute nullity because -- such is the allegation -- it was done without or in excess
of his functions amounting to lack of jurisdiction.
To resolve the issue of union representation at the Universal Robina Textile plant, what was agreed to
be held at the company's premises and which became the root of this controversy, was a consent
election, not a certification election.
It is unmistakable that the election held on November 15, 1990 was a consent election and not a
certification election. It was an agreed one, the purpose being merely to determine the issue of majority
representation of all the workers in the appropriate collective bargaining unit. It is a separate and
distinct process and has nothing to do with the import and effort of a certification election.[5]
The ruling of DOLE's representative in that election that the questioned ballot is spoiled is not based on
any legal provision or rule justifying or requiring such action by such officer but simply in pursuance
of the intent of the parties, expressed in the written instructions contained in the ballot, which is to
prohibit unauthorized markings thereon other than a check or a cross, obviously intended to identify the
votes in order to preserve the sanctity of the ballot, which is in fact the objective of the contending
parties.
If indeed petitioner's group had any opposition to the representation officer's ruling that the questioned
ballot was spoiled, it should have done so seasonably during the canvass of votes. Its failure or inaction
to assail such ballot's validity shall be deemed a waiver of any defect or irregularity arising from said
election. Moreover, petitioners even question at this stage the clear instruction to mark a check or cross
opposite the name of the candidate's group, arguing that such instruction was not clear, as two checks
"may be interpreted that a voter may vote for Lino Algire but not with (sic) his officers or vice-
versa,"[6] notwithstanding the fact that a pre-election conference had already been held where no such
question was raised.
In any event, the choice by the majority of employees of the union officers that should best represent
them in the forthcoming collective bargaining negotiations should be achieved through the democratic
process of an election, the proper forum where the true will of the majority may not be circumvented
but clearly defined. The workers must be allowed to freely express their choice once and for all in a
determination where everything is open to their sound judgment and the possibility of fraud and
misrepresentation is minimized, if not eliminated, without any unnecessary delay and/or maneuvering.
WHEREFORE, the petition is DENIED and the challenged decision is hereby AFFIRMED.
SO ORDERED.

Bidin, (Acting Chairman), Melo, and Vitug, JJ, concur.


Feliciano, J., on leave.
NATIONAL UNION OF
WORKERS IN HOTELS, G.R. No. 181531
RESTAURANTS AND ALLIED
INDUSTRIES- MANILA Present:
PAVILION HOTEL CHAPTER,
Petitioner, QUISUMBING, J., Chairperson,
CARPIO MORALES,
- versus - CHICO-NAZARIO,*
LEONARDO-DE CASTRO,** and
PERALTA,*** JJ.
SECRETARY OF LABOR AND
EMPLOYMENT, BUREAU OF
LABOR RELATIONS, HOLIDAY
INN MANILA PAVILION HOTEL Promulgated:
LABOR UNION AND ACESITE July 31, 2009
PHILIPPINES HOTEL
CORPORATION,
Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:


National Union of Workers in Hotels, Restaurants and Allied Industries Manila Pavilion
Hotel Chapter (NUWHRAIN-MPHC), herein petitioner, seeks the reversal of the Court
of Appeals November 8, 2007 Decision[1] and of the Secretary of Labor and
Employments January 25, 2008 Resolution[2] in OS-A-9-52-05 which affirmed
the Med-Arbiters Resolutions dated January 22, 2007[3] and March 22, 2007.[4]

A certification election was conducted on June 16, 2006 among the rank-and-file
employees of respondent Holiday Inn Manila Pavilion Hotel (the Hotel) with the
following results:

EMPLOYEES IN VOTERS LIST = 353


TOTAL VOTES CAST = 346
NUWHRAIN-MPHC = 151
HIMPHLU = 169
NO UNION = 1
SPOILED = 3
SEGREGATED = 22

In view of the significant number of segregated votes, contending unions, petitioner,


NUHWHRAIN-MPHC, and respondent Holiday Inn Manila Pavillion Hotel Labor
Union (HIMPHLU), referred the case back to Med-Arbiter Ma. Simonette Calabocal to
decide which among those votes would be opened and tallied. Eleven (11) votes were
initially segregated because they were cast by dismissed employees, albeit the legality of
their dismissal was still pending before the Court of Appeals. Six other votes were
segregated because the employees who cast them were already occupying supervisory
positions at the time of the election. Still five other votes were segregated on the ground
that they were cast by probationaryemployees and, pursuant to the existing Collective
Bargaining Agreement (CBA), such employees cannot vote. It bears noting early on,
however, that the vote of one Jose Gatbonton (Gatbonton), a probationary employee,
was counted.

By Order of August 22, 2006, Med-Arbiter Calabocal ruled for the opening of 17 out of
the 22 segregated votes, specially those cast by the 11 dismissed employees and those
cast by the six supposedly supervisory employees of the Hotel.

Petitioner, which garnered 151 votes, appealed to the Secretary of Labor and
Employment (SOLE), arguing that the votes of the probationary employees should have
been opened considering that probationary employee Gatbontons vote was tallied.And
petitioner averred that respondent HIMPHLU, which garnered 169 votes, should not be
immediately certified as the bargaining agent, as the opening of the 17 segregated ballots
would push the number of valid votes cast to 338 (151 + 169 + 1 + 17), hence, the 169
votes which HIMPHLU garnered would be one vote short of the majority which would
then become 169.

By the assailed Resolution of January 22, 2007, the Secretary of Labor and Employment
(SOLE), through then Acting Secretary Luzviminda Padilla, affirmed the Med-Arbiters
Order. It held that pursuant to Section 5, Rule IX of the Omnibus Rules Implementing
the Labor Code on exclusion and inclusion of voters in a certification election, the
probationary employees cannot vote, as at the time the Med-Arbiter issued on August 9,
2005 the Order granting the petition for the conduct of the certification election, the six
probationary employees were not yet hired, hence, they could not vote.

The SOLE further held that, with respect to the votes cast by the 11 dismissed
employees, they could be considered since their dismissal was still pending appeal.

As to the votes cast by the six alleged supervisory employees, the SOLE held that their
votes should be counted since their promotion took effect months after the issuance of
the above-said August 9, 2005 Order of the Med-Arbiter, hence, they were still
considered as rank-and-file.

Respecting Gatbontons vote, the SOLE ruled that the same could be the basis to include
the votes of the other probationary employees, as the records show that during the pre-
election conferences, there was no disagreement as to his inclusion in the voters list, and
neither was it timely challenged when he voted on election day, hence, the Election
Officer could not then segregate his vote.

The SOLE further ruled that even if the 17 votes of the dismissed and supervisory
employees were to be counted and presumed to be in favor of petitioner, still, the same
would not suffice to overturn the 169 votes garnered by HIMPHLU.

In fine, the SOLE concluded that the certification of HIMPHLU as the exclusive
bargaining agent was proper.
Petitioners motion for reconsideration having been denied by the SOLE by Resolution of
March 22, 2007, it appealed to the Court of Appeals.

By the assailed Decision promulgated on November 8, 2007, the appellate


court affirmed the ruling of the SOLE. It held that, contrary to petitioners assertion, the
ruling in Airtime Specialist, Inc. v. Ferrer Calleja[5] stating that in a certification
election, all rank-and-file employees in the appropriate bargaining unit, whether
probationary or permanent, are entitled to vote, is inapplicable to the case at bar. For, the
appellate court continued, the six probationary employees were not yet employed by the
Hotel at the time the August 9, 2005 Order granting the certification election was
issued. It thus held that Airtime Specialistapplies only to situations wherein the
probationary employees were already employed as of the date of filing of the petition for
certification election.

Respecting Gatbontons vote, the appellate court upheld the SOLEs finding that since it
was not properly challenged, its inclusion could no longer be questioned, nor could it be
made the basis to include the votes of the six probationary employees.

The appellate court brushed aside petitioners contention that the opening of the 17
segregated votes would materially affect the results of the election as there would be the
likelihood of a run-off election in the event none of the contending unions receive a
majority of the valid votes cast. It held that the majority contemplated in deciding which
of the unions in a certification election is the winner refers to the majority of valid votes
cast, not the simple majority of votes cast, hence, the SOLE was correct in ruling that
even if the 17 votes were in favor of petitioner, it would still be insufficient to overturn
the results of the certification election.

Petitioners motion for reconsideration having been denied by Resolution of January 25,
2008, the present recourse was filed.

Petitioners contentions may be summarized as follows:


1. Inclusion of Jose Gatbontons vote but excluding the vote of the six
other probationary employees violated the principle of equal protection and is
not in accord with the ruling in Airtime Specialists, Inc. v. Ferrer-Calleja;
2. The time of reckoning for purposes of determining when the
probationary employees can be allowed to vote is not August 9, 2005 the date of
issuance by Med-Arbiter Calabocal of the Order granting the conduct of
certification elections, but March 10, 2006 the date the SOLE Order affirmed the
Med-Arbiters Order.

3. Even if the votes of the six probationary employees were included, still,
HIMPHLU could not be considered as having obtained a majority of the valid
votes cast as the opening of the 17 ballots would increase the number of valid
votes from 321 to 338, hence, for HIMPHLU to be certified as the exclusive
bargaining agent, it should have garnered at least 170, not 169, votes.

Petitioner justifies its not challenging Gatbontons vote because it was precisely its
position that probationary employees should be allowed to vote. It thus avers that justice
and equity dictate that since Gatbontons vote was counted, then the votes of the 6 other
probationary employees should likewise be included in the tally.

Petitioner goes on to posit that the word order in Section 5, Rule 9 of Department Order
No. 40-03 reading [A]ll 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 certification election shall be allowed to vote refers to
an order which has already become final and executory, in this case the March 10, 2002
Order of the SOLE.

Petitioner thus concludes that if March 10, 2006 is the reckoning date for the
determination of the eligibility of workers, then all the segregated votes cast by the
probationary employees should be opened and counted, they having already been
working at the Hotel on such date.
Respecting the certification of HIMPHLU as the exclusive bargaining agent, petitioner
argues that the same was not proper for if the 17 votes would be counted as valid, then
the total number of votes cast would have been 338, not 321, hence, the majority would
be 170; as such, the votes garnered by HIMPHLU is one vote short of the majority for it
to be certified as the exclusive bargaining agent.

The relevant issues for resolution then are first, whether employees on probationary
status at the time of the certification elections should be allowed to vote, and second,
whether HIMPHLU was able to obtain the required majority for it to be certified as the
exclusive bargaining agent.

On the first issue, the Court rules in the affirmative.

The inclusion of Gatbontons vote was proper not because it was not questioned but
because probationary employees have the right to vote in a certification election. The
votes of the six other probationary employees should thus also have been
counted. As Airtime Specialists, Inc. v. Ferrer-Calleja holds:

In a certification election, all rank and file employees in the appropriate


bargaining unit, whether probationary or permanent are entitled to
vote. This principle is clearly stated in Art. 255 of the Labor Code which
states that the labor organization designated or selected by the majority of
the employees in an appropriate bargaining unit shall be the exclusive
representative of the employees in such unit for purposes of collective
bargaining. Collective bargaining covers all aspects of the employment
relation and the resultant CBA negotiated by the certified union binds all
employees in the bargaining unit. Hence, all rank and file employees,
probationary or permanent, have a substantial interest in the selection of the
bargaining representative. The Code makes no distinction as to their
employment status as basis for eligibility in supporting the petition for
certification election. The law refers to all the employees in the
bargaining unit. All they need to be eligible to support the petition is to
belong to the bargaining unit. (Emphasis supplied)
Rule II, Sec. 2 of Department Order No. 40-03, series of 2003, which amended Rule XI
of the Omnibus Rules Implementing the Labor Code, provides:

Rule II

Section 2. Who may join labor unions and workers' associations. - All
persons employed in commercial, industrial and agricultural enterprises,
including employees of government owned or controlled corporations
without original charters established under the Corporation Code, as well as
employees of religious, charitable, medical or educational institutions
whether operating for profit or not, shall have the right to self-organization
and to form, join or assist labor unions for purposes of collective
bargaining: provided, however, that supervisory employees shall not be
eligible for membership in a labor union of the rank-and-file employees but
may form, join or assist separate labor unions of their own. Managerial
employees shall not be eligible to form, join or assist any labor unions for
purposes of collective bargaining. Alien employees with valid working
permits issued by the Department may exercise the right to self-
organization and join or assist labor unions for purposes of collective
bargaining if they are nationals of a country which grants the same or
similar rights to Filipino workers, as certified by the Department of Foreign
Affairs.

For purposes of this section, any employee, whether employed for a


definite period or not, shall beginning on the first day of his/her service,
be eligible for membership in any labor organization.

All other workers, including ambulant, intermittent and other workers, the
self-employed, rural workers and those without any definite employers may
form labor organizations for their mutual aid and protection and other
legitimate purposes except collective bargaining. (Emphasis supplied)

The provision in the CBA disqualifying probationary employees from voting cannot
override the Constitutionally-protected right of workers to self-organization, as well as
the provisions of the Labor Code and its Implementing Rules on certification elections
and jurisprudence thereon.
A law is read into, and forms part of, a contract. Provisions in a contract are valid only if
they are not contrary to law, morals, good customs, public order or public policy.[6]

Rule XI, Sec. 5 of D.O. 40-03, on which the SOLE and the appellate court rely to
support their position that probationary employees hired after the issuance of the Order
granting the petition for the conduct of certification election must be excluded, should
not be read in isolation and must be harmonized with the other provisions of D.O. Rule
XI, Sec. 5 of D.O. 40-03, viz:

Rule XI
xxxx
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. (Emphasis supplied)

xxxx
Section 13. Order/Decision on the petition. - Within ten (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.

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) a statement that none of the grounds for dismissal enumerated in


the succeeding paragraph exists;
(d) the names of contending labor unions which shall appear as
follows: petitioner union/s in the order in which their petitions were
filed, forced intervenor, and no union; and

(e) a directive upon the employer and the contending union(s) to


submit within ten (10) days from receipt of the order, the certified
list of employees in the bargaining unit, or where necessary, the
payrolls covering the members of the bargaining unit for the last three
(3) months prior to the issuance of the order. (Emphasis supplied)
xxxx

Section 21. Decision of the Secretary. - The Secretary shall have fifteen
(15) days from receipt of the entire records of the petition within which to
decide the appeal. The filing of the memorandum of appeal from the
order or decision of the Med-Arbiter staysthe holding of any
certification election.

The decision of the Secretary shall become final and executory after ten
(10) days from receipt thereof by the parties. No motion for
reconsideration of the decision shall be entertained. (Emphasis supplied)

In light of the immediately-quoted provisions, and prescinding from the principle that all
employees are, from the first day of their employment, eligible for membership in a
labor organization, it is evident that the period of reckoning indetermining who shall be
included in the list of eligible voters is, in cases where a timely appeal has been
filed from the Orderof the Med-Arbiter, the date when the Order of the Secretary of L
abor and Employment,
whether affirming or denyingthe appeal, becomes final and executory.

The filing of an appeal to the SOLE from the Med-Arbiters Order stays its execution, in
accordance with Sec. 21, and rationally, the Med-Arbiter cannot direct the employer to
furnish him/her with the list of eligible voters pending the resolution of the appeal.

During the pendency of the appeal, the employer may hire additional employees. To
exclude the employees hired after the issuance of the Med-Arbiters Order but before the
appeal has been resolved would violate the guarantee that every employee has the right
to be part of a labor organization from the first day of their service.

In the present case, records show that the probationary employees, including Gatbonton,
were included in the list ofemployees in the bargaining unit submitted by the Hotel
on May 25, 2006 in compliance with the directive of the Med-Arbiter after the appeal
and subsequent motion for reconsideration have been denied by the SOLE, rendering the
Med-Arbiters August 22, 2005 Order final and executory 10 days after the March 22,
2007 Resolution (denying the motion for reconsideration of the January 22 Order
denying the appeal), and rightly so. Because, for purposes of self-organization, those
employees are, in light of the discussion above, deemed eligible to vote.

A certification election is the process of determining the sole and exclusive bargaining
agent of the employees in an appropriate bargaining unit for purposes of collective
bargaining. Collective bargaining, refers to the negotiated contract between a legitimate
labor organization and the employer concerning wages, hours of work and all other
terms and conditions of employment in a bargaining unit.[7]

The significance of an employees right to vote in a certification election cannot thus be


overemphasized. For he has considerable interest in the determination of who shall
represent him in negotiating the terms and conditions of his employment.

Even if the Implementing Rules gives the SOLE 20 days to decide the appeal from the
Order of the Med-Arbiter, experience shows that it sometimes takes months to be
resolved. To rule then that only those employees hired as of the date of the issuance of
the Med-Arbiters Order are qualified to vote would effectively disenfranchise employees
hired during the pendency of the appeal. More importantly, reckoning the date of the
issuance of the Med-Arbiters Order as the cut-off date would render inutile the remedy
of appeal to the SOLE.

But while the Court rules that the votes of all the probationary employees should be
included, under the particular circumstances of this case and the period of time which it
took for the appeal to be decided, the votes of the six supervisory employees must be
excluded because at the time the certification elections was conducted, they had ceased
to be part of the rank and file, their promotion having taken effect two months before the
election.

As to whether HIMPHLU should be certified as the exclusive bargaining agent, the


Court rules in the negative. It is well-settled that under the so-called double majority
rule, for there to be a valid certification election, majority of the bargaining unit
must have voted AND the winning union must have garnered majority of the valid
votes cast.

Prescinding from the Courts ruling that all the probationary employees votes should be
deemed valid votes while that of the supervisory employees should be excluded, it
follows that the number of valid votes cast would increase from 321 to 337.Under Art.
256 of the Labor Code, the union obtaining the majority of the valid votes cast by the
eligible voters shall be certified as the sole and exclusive bargaining agent of all the
workers in the appropriate bargaining unit. This majority is 50% + 1. Hence, 50% of 337
is 168.5 + 1 or at least 170.

HIMPHLU obtained 169 while petitioner received 151 votes. Clearly, HIMPHLU was
not able to obtain a majority vote.The position of both the SOLE and the appellate court
that the opening of the 17 segregated ballots will not materially affect the outcome of the
certification election as for, so they contend, even if such member were all in favor of
petitioner, still, HIMPHLU would win, is thus untenable.

It bears reiteration that the true importance of ascertaining the number of valid votes cast
is for it to serve as basis for computing the required majority, and not just to determine
which union won the elections. The opening of the segregated but valid votes has thus
become material. To be sure, the conduct of a certification election has a two-fold
objective: to determine the appropriate bargaining unit and to ascertain the
majority representation of the bargaining representative, if the employees desire to
be represented at all by anyone. It is not simply the determination of who between two
or more contending unions won, but whether it effectively ascertains the will of the
members of the bargaining unit as to whether they want to be represented and which
union they want to represent them.

Having declared that no choice in the certification election conducted obtained the
required majority, it follows that a run-off election must be held to determine which
between HIMPHLU and petitioner should represent the rank-and-file employees.

A run-off election refers to an election between the labor unions receiving the two (2)
highest number of votes in a certification or consent election with three (3) or more
choices, where such a certified or consent election results in none of the three (3) or
more choices receiving the majority of the valid votes cast; provided that the total
number of votes for all contending unions is at least fifty percent (50%) of the number of
votes cast.[8] With 346 votes cast, 337 of which are now deemed valid and HIMPHLU
having only garnered 169 and petitioner having obtained 151 and the choice NO
UNION receiving 1 vote, then the holding of a run-off election between HIMPHLU and
petitioner is in order.

WHEREFORE, the petition is GRANTED. The Decision dated November 8, 2007 and
Resolution dated January 25, 2008 of the Court of Appeals affirming the Resolutions
dated January 22, 2007 and March 22, 2007, respectively, of the Secretary of Labor and
Employment in OS-A-9-52-05 are ANNULLED and SET ASIDE.

The Department of Labor and Employment-Bureau of Labor Relations


is DIRECTED to cause the holding of a run-off election between petitioner, National
Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavilion Hotel
Chapter (NUWHRAIN-MPC), and respondent Holiday Inn Manila Pavilion Hotel Labor
Union (HIMPHLU).

SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice