LABOR MAY 24, 2018

We will always bear in mind ULP.

Where can you find possible ULP’s?

 Exercise of right to join, assist and form labor organizations

 Performance of duty to collectively bargain
 CBA compliance

The most democratic mode of selection is Certification Election. It’s like a barangay election.
There are contestants. It is initiated thru a filing of petition, and the filing is within the Office of
Med Arbiter. It’s his Jurisdiction. It is his concern to receive and resolve petitions and relative to
CE petitions, take note of this sole area of questioning:

When is a CE petition valid?

Look into FORMAL and SUBSTANTIVE requisites.

Formal since it is a petition, it must be in writing. Somebody has to sign it and has to be verified
and must bear a non forum shopping certificate.

VERIFICATION is the most important among these requisites.

Supposed a CE petition does not come with a verification, should the Med Arbiter dismiss it
outright? Answer: No
Because Certification Election petition does not initiate a litigation. It’s not like a civil case where
the complainant/plaintiff will seek relief against another person, (defendant), that is not the
nature of a certification election.

In the words of the Supreme Court, in the Sandoval Shipyards case, a CE is just a mode of
verification.
Just a means of determining the will of the workers as to the representative for purposes of
collective bargaining so that absence of verification is not fatal. Except DO 40-03 says that it
must be verified.

In the language of Justice Bersamin, it is investigative in character.

Who investigates? –Med Arbiter
What does he investigate? –the will of the workers as to which union is their preference for
representation
That is the nature of CE.
As to Substantive requisites, the petition must contain the following allegations:
 o That the petitioner is a Legitimate Labor Organization (the best way to prove that is to
attach the Certificate of Registration)
o It must state that it is not barred (you must have come across CE bars like the contract
bar, certification bar and the deadlock bar)
Is there a bar to the CE? As petitioner, penned to med arbiter, this petition is not barred.
There must be a statement describing the CBU sought to be represented.
CBU= Collective Bargaining Unit
It is grouping of workers consisting of all or less than all of the employees of the company.
Usually less than all. That is the character of the CBU.

o The petition must have a description of CBU sought to be represented. It is enough to tell
the Med Arbiter, the petitioner seeks to represent the CBU consisting of rank and filers
and that would be a sufficient description.
o A statement that the majority workers or the members of the CBA support the CE.

Determining the validity of CE

You cannot produce a legitimate EBR (Exclusive Bargaining Representative) unless the mode of
selection is valid.

So the CE has to be valid.

How do you know that it is valid? There are two requisites:

 The CE is not barred

What is the contract bar?

It implies a contract. What is that contract which constitutes a bar to CE? The CBA. The CBA is
the contract. CBA has two lives, the 5-year political life and the 3 year economic life.
A contract like a CBA, must have stipulations.
Divide these stipulations into two.
1. Money Provisions (the economic rights)
2. Political Provisions (which comprise the political life)
What are political provisions?
i) Grievance Machinery
ii) Union Security Clause
iii) All provisions which have nothing to do with money benefits

When do you start counting 5 years? Is the start of signing of CBA?

Answer: Not Necessarily
Because if a CBA is signed today but the agreement of the parties is that, it shall take effect
tomorrow, then it takes effect tomorrow. You count five years from tomorrow. Then yung five
years, meron siyang last 60 days, filing of CE petitions during the political life except during the
freedom period.

As pre requisite of contract bar, the CBA must be registered, if not registered there is no bar.
Any rival union can file a petition for CE even before the onset of the freedom period.

Can a petition of CBA be filed outside the freedom period?

Ask if the CBA is registered. If not registered, contract bar will not apply.

What about the certification year bar? Today, Union A is certified as EDR, this is the union that
will represent all the workers in the establishment for purposes of entering into a CBA with the
company, for purposes of collective bargaining. From today you count, 12 months. That
representative must commence and sustain collective bargaining during that period. During the
12-month period, no filing of CE petitions. Those petitions will be barred by the certification
union bar.

What is the pre-requisite of the second bar?

Representative must commence and sustain collective bargaining.

Deadlock bar
Usually a CE petition is resorted to all, or to produce a representative which will be there to
address issues with the company.
If an issue, a problem, a dispute has been submitted to Voluntary Arbitrator to mediation or
any, it is subject to a valid notice of strike. No filing. Because these are processes which should
be allowed to produce fruits. You won’t let a CE disturb these processes.

 Majority of the eligible voters must cast their votes during the election

Who are eligible to vote?

Here is X company with 1,000 rank and filers.

These are the members of the CBU.
But these 100 are not eligible voters.
Who are these 100?

 Non Employees
 Non members of the CBUs sought to be represented
 The voter is a CBU member however he’s membership in the CBU is less than 3 months

You don’t allow confidential employees to vote because it’s a rank and filers concern. Also the
Abusayaffs because they are not allowed.
Subversive are not allowed but according to USec Jimenez, the Anti Subversion Law should
produce an effect which allows subversives to vote.

The 900 will be allowed to vote.

What is majority of ELVOT. How do you determine majority? = 50% + 1

The winning union. Is the union headed by military officer?

The winning union who cast majority of votes. Majority votes based on valid votes.

In the 900 ELVOTS, we’re going to take away 20. Because those 20 are not valid votes. Why?
Because they consist of black ballots.

880. Who’s the winner? Union by majority of votes based on valid votes.
Again 50% + 1

440 = 50%
+1
441

Union A = 400
Union B = 241
Union C = 239
No Union = 0

NO WINNER

No winner, walang iccertify si Med Arbiter.

The workers cannot proceed to Collective Bargaining. In other words, they cannot compel the
employer to come or to negotiate a CBA.
Because to be able to do that, the workers must comply with jurisdictional pre conditions of
collective bargaining.

 Possession of majority representative status

 Proof of majority representative status
 Demand to bargain

ULP = Refusal (to reply within 10 days)

Mere Failure = Not ULP

What happens if a CE does not produce an EBR for their workers?

Run Off Election, to produce that representative
If total vote is at least 50% of the votes cast = it tells you that the workers want to be represented
by a union.

Give them a representative thru a Run Off Election.

But first check if the other requisites are present.

Requisites:

 Valid CE
 There must be three or more participants including “No Union”
 Non of the participants got majority vote based on valid votes
 Total votes excluding the vote of No Union is at least 50% of casted votes
 There shall be no election contest that can materially alter the result of the CE

Who should participate in the Run Off?

The Two Unions with the highest number of votes

Winner: Union that will get majority votes based on the valid votes cast in the run off election
not in the CE.

Run Off Election comes after a failed CE.

What if it fails too?
There will be no more elections.
In fact, after a failed Run Off Election, it shall happen again in the next 12 months in order to
avoid Union Politics. In order to stabilize the company.

Re Run Election
If in the course of CE, irregularities are committed, like Election Officer then the Med Arbiter
must conduct a UCE within the next six months.
Failure of Election, Med Arbiter must conduct another CE within six months.

Less than majority = failure of elections, solution > Re Run