February 21, 2018 Labor Relations Transcription:

Summary sa Advise ni Sir before Nag-lesson proper:

The Bar Exam is all about presentation. It is about the organization of your thoughts. You have to organize
your thoughts properly. Focus not just in terms of learning the law, but also try to improve your writing
skills as well. You must have the ability to present your answers correctly in terms of articulation. You
must also be religious in attending your bar reviews.

Lesson Proper:

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 by any
legitimate labor organization including a national union or federation which has already issued a charter
certificate to its local chapter participating in the certification election or a local chapter which has been
issued a charter certificate by the national union or federation before the Department of Labor and
Employment within the sixty (60)-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. To have
a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor
union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent
of all the workers in the unit. 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. In cases where the
petition was filed by a national union or federation, it shall not be required to disclose the names of the
local chapter’s officers and members.

At the expiration of the freedom period, the employer shall continue to recognize the majority status
of the incumbent bargaining agent where no petition for certification election is filed. (As amended by
Section 23, Republic Act No. 6715, March 21, 1989 and Section 10, Republic Act No. 9481 which lapsed
into law on May 25, 2007 and became effective on June 14, 2007).

Paragraph number 1 talks about the requirements of the law. What are the requirements of the Law?
Please read paragraph number 1.

The first requirement is that the petition must be verified. Do you know what a verification is? Have you
seen a verification in all your life? Those who are working in law firms would have encountered this. That
if you have read everything and you attest to the veracity of what you have written and everything to your
knowledge are factual and that is verification.

Q: Alright who can file CE?

A: Legitimate Labor Organization.

Q:When can file a petition for CE?

A: Only during the freedom period. The freedom period being 60 days prior to the expiration of the CBA.

Q: What are the requirements of the law:

A: These are the requirements of the law:

1. It must be verified;
2. Filed by a Legitimate Labor Organization;
3. During the Freedom period; and
4. Supported by 25% of the members of the bargaining unit.

We are talking about a petition for CE in organized establishments. I asked this in your midterm exams.

Q: What is organized establishment?

A: One where a union has been certified as the sole and exclusive bargaining agent and have concluded a
collective bargaining agreement.

So if there is a CBA, the med arbiter can only entertain a petition for certification election during the
freedom period. And the med arbiter, look at this one.

Q: Why would the law require 25% support?

A: Whether or not this petitioner is in fact serious as a challenger to the incumbent SEBA. You get that?
Or if that is not hurdled, therefore that means that this petitioner might only be a nuisance. And further
in that discussion there, you will learn that 25% is not in fact strict rule. Did you encounter that discussion?
Q: What is the 25% support for?

A: It is only to establish whether this challenge is serious or legitimate. If upon determination by the
company and by the HRDP or as affirmed by the med arbiter later on that the support is only 23% or 22%
and there is doubt whether this is serious or not, what should the med-arbiter do?

Q: When the 25% support is doubtful, what should the med arbiter do?

A: The med arbiter is enjoined to settle the matter by way of certification election. The matter referring
to what? What is the question at hand here? Whether this challenger is in fact serious or legitimate?
Legitimate in the sense that he can actually pose a serious contest to the existence of the incumbent SEBA.

Q: What will the med arbiter do to resolve such issue? Is it in the determination of whether the 25%
support is present or not?
A: The answer is no. There is only one way according to jurisprudence where the med arbiter can
determine such issue. How is he going to do that? By calling a certification election. Do you get the
presentation there?

What is the question at hand here? There is doubt as to whether or not there is in fact 25% which is the
barometer for the med arbiter to determine whether this challenge is serious or not. Do you get that?

If there is doubt, resolve in favor of the conduct of the certification election. Why? Ultimately the question
of serious challenge will be resolved in the certification election. Kung wala ka ganing marepresent, then
by all means pag nag CE, ang result ng CE will in fact prove that. Correct?

Pero, look at this one, if the signature support is let us say only 10%, are you going to call for a CE? There
is no doubt there that this is actually not serious. Kasi ang meron sila is only 10%. How can this be a
serious challenge?

I will tell you a story that the decision of the lawyer is not so legal. The strategy is not in accordance with
the book but very very smart. I granted a petition for CE because they presented in their petition that they
have 26% support. When I identified the list before the HR, lumalabas na parang 22.4% lang. What does
it present? The petitioner said that we have 26%, the HR said only 22%. What is the situation presented
to me? It presents doubt kung meron bang 25% support or not. Is that correct? What is the directive of
the Supreme Court in that regard? When there is doubt, whether there is legitimate challenge or not,
resolve in favor of the conduct of the certification election. So what did I do? I granted the petition.
Because that is what the Supreme Court said. I based my decision on the principle of doubt. My decision
was based on what jurisprudence says.

What did the lawyers advise his group? Did they appeal the decision on the basis of the supposed to be
wrong decision? Sabi ng lawyer no. We don’t appeal the decision. Conduct the election now. Anyway,
they only have 22%. If they would appeal the decision, they would allow the other parties still have time
to convince others to join them on their side while the appeal is going on in the Office of the Secretary.
Sabi ng lawyer, no. Conduct the election now. Doon pa lang alam na talaga nila na yung 22% is yung
maximum number talaga nung support ng challenger, ng petitioner. So the lesson is if you are the lawyer,
are you going to work it out in legal remedies available to you or you should be very very smart? No. Just
allow the election to proceed. Anyway, the numbers are with us. If we would appeal this, they might gain
grounds and recruit others to join their ranks. True, I certified na nanalo talaga ang incumbent. After the
certification election, nung na canvass na. Sabi ko, sige I will certify. You are hereby certified as the Sole
and Exclusive Bargaining Agent of X Company. My decision was based on what jurisprudence says.

For years as a med arbiter, I was only reversed once. And until this day, I am still not convinced that the
Secretary is correct. It was on the issue of whether or not members of the cooperative are excluded from
voting in the Certification Election. Because I really took the ruling in the Cooperative Bank, in Ifugao
Electric Coop, in Negros 1 Electric Cooperative Cases. These cases said that if you are a member of the
coop, you cannot participate in Certification election. So I excluded in my order. The petition is granted
except for those who are members of the cooperative. Sabi ng Secretary of Labor, mere membership in
the cooperative does not deny the right of workers to right to self-organization. So, okay, I was reversed.
Pero now the matter is in the Court of Appeals. Anyway, that is with respect to the 25% support. I hope
that is clear to you.
What are the other material things there? Who are the contestants in a run off election? We discussed
the double majority rule last Monday tama? Today we discussed the requirement in paragraph A. Ang
next paragraph niyan is the double majority rule. Ang next item niyan is related to run-off. Ano yung sabi
ng Code, when the certification election results in yung no clear majority. Provided, that the vote of the
contending unions is at least 50%. You don’t even have to hurdle the majority there basta kalahati lang.
The principle is what? Adhering to the principle that the law favors unionism. So kahit 50% lang, sabihin
natin okay gusto talaga ng mga tao na they will be represented by a union. Did you get that? That is the
clear message of what is half of them. So what do you do in that regard? The election officer shall call for
a run-off election. So the question is, who wins in a run-off election?

Who are the contestants in a run-off election? The two highest union choices, excluded in the choice
would be NO UNION. So dalawa na lang ang choice. So between the two, who wins? The choice which
garners the majority of the votes? The answer to that is found in Rule 11. I think Section 2 siguro yun. Rule
10 pala ng DO 40. Anong sabi ng Rule 10. Basa.

Section 2. Qualification of voters. - The same voters' list used in the certification election shall be used
in the run-off election. The ballots in the run-off election shall provide as choices the unions receiving
the highest and second highest number of the votes cast. The labor union receiving the greater number
of valid votes cast shall be certified as the winner, subject to Section 20, Rule IX.

Sinong Manalo? The one who receives the greater. Kung tatlo ang bumoto, dalawa ang napunta sa A, isa
sa B, sinong mananalo? Si A. You need not hurdle the second majority, right? There was already a valid
election, there is no need to hurdle the majority because the majority has already decided to be
represented. The only thing needed is what? Whichever choice garners the greater number of votes. Did
you get that? You understand it by heart? We always doubt ourselves noh?? (TRUE SIR…hehe) Maybe the
results of the midterm will boost your morale… (huhuhu)

If you look at Article 257, walang ibang requirement diyan noh. Ano yang 257? Certification Election in
Unorganized establishments. In short, wala itong union. Walang SEBA ito. Unorganized meaning to say
first time pa lang ito magkakaroon ng SEBA. Wala pang CBA actually. What is the requirement of the law?
Sabi diyan, in many of our decisions we always quote Article 257 basta unorganized. The law places no
other requirement for the petition to be granted except that what? The petitioner must be a Legitimate
Labor Organization. Ang wording diyan is the med-arbiter shall immediately conduct, conduct ba ang
ginamit na term? automatically conduct. Parang pagfile ng petition, okay election agad, parang ganyan if
you visualize it. Actually, hindi naman ganyan. You still have to resolve it. The order granting the petition
is actually contained in a decision type of thing noh. There will be narration of facts, ganito. Wala namang
contest ito. Naregister naman. Before the dispositive portion, you will say that the law requires nothing
else for this petition to be granted except that the petitioner is a LLO. And therefore, your dispositive
portion will say what? That in the case the petitioner being a legitimate labor organization, then the
petition is granted. So what do you do? Let a certification election be conducted among the rank and file
workers in XYZ establishment with the following choices: 1. XYZ Union, 2. NO Union. Or kung dalawa sila,
nagfile sila ng petition sabay or nagfile ang isa, nag intervene yung isa, dalawa sila. So, the choices will be
three: 1. Union A, 2. Union B and 3. No Union.

That’a what the law means in the run-off election paragraph- when the certification election has 3 or more
choices. Meaning to say kung 3 or more choices, anong ibig sabihin non? Dalawang union, isang no union.
Yan yung 3. Hindi yung 3 na parehas silang union because kung tatlo ang union, how many choices will
there be? There will be 4 because No Union will always be a choice. Except in the run-off election where
NO UNION will no longer be a choice. Do you understand? So you call a Certification Election.

If you fast-track it a little bit which I will discuss on Friday. Once the petition is granted, what happens?
you proceed with pre-election conference. What happens in pre-election conference? Other than the
venue, etc. Because you have to agree on the venue. Sa gymnasium ba ng barangay or saan ba malapit
ang entrance ng plantation or sa loob ba ng plantation or what? Is it going to be in DOLE? Whatever it is
noh.. You agree on those matters in the pre-election conference.

And then most importantly, you go through the process of inclusion and exclusion. The inclusion and
exclusion proceeding is the most crucial in depth prior to the certification election itself. I have also very
nice stories about inclusion and exclusion where I included 3 and I excluded 1 in one contest. No Union
actually prevailed there. In the certification election itself before the exclusion of the 4 doctors, NO UNION
led by 1 vote. Lamang ang NO UNION ng 1 vote. Ang Union parang 50, 51 ganyan ang score. But there are
4 challenged votes because the med arbiter still has to rule whether these 4 are actually eligible voters.
That’s why they were excluded. Excluded means they can vote but there votes will not be canvassed
because they are considered to be challenged.

Q: Who are challenged voters?

A: Those management and union cannot agree on as legitimate voters. Union says they are voters but
management are saying they are not. Why? Because they are managers to the mind of the management.
Therefore, they are considered challenged. We have to rule whether their votes will be opened and
canvassed.

So ganun yun. But those things, the listing of who are legitimate voters and who are not happens during
the pre-election conference particularly during the inclusion and exclusion proceeding. Okay. Now more
on that next meeting as to what happens in the actual election…

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