LABOR LAW REVIEW MEMORY AID

Guiller-Kristoffer Lamug

I. EMPLOYER-EMPLOYEE RELATIONSHIP
1. Concept- contractual in character but impressed with public interest, should yield to common good (Civil Code) 2. Four-fold Test a. Selection and engagement b. Payment of wages c. Dismissal d. Power to Control* ECONOMIC REALITY TEST examine prevailing economic realities within activity and between parties; economic dependence of worker on his ER (Orozco v. CA) * CONTROL TEST -- ER has reserved the right to control not only work to be achieved but the manner and method work is to be achieved (LVN Pictures v. LVN Musicians Guild); refers to the existence of the power not necessarily to its actual exercise (RP v. Asiapro) [Exception] Rules that merely serve as guidelines v. Rules that fix the methodology and bind or restrict the parties hired to the use of such means and methods addressing both result and the means. Ex: 1. Insurance agents in the absence of evidence that rules and regulations issued effectively controlled/restricted the agents choice of methods of selling insurance (Insular Life v. NLRC) case to case basis 2. Caddies are not employees in the absence of control (Manila Golf v. IAC) 3. Examples where ER-EE exists a. Jeepney operators/owners jeepney drivers owner is holder of cert. of public convenience thus must ensure that driver follows prescribed route of the franchising authority and rules promulgated; drivers perform activities which are usually necessary or desirable in the usual trade of their ER (Jardin v. NLRC) b. Bus company bus driver (R. Transport v. Ejandra) c. Hospital Resident physicians specific work schedules determined by hospital, supervision and monitoring of resident doctors work through nursing supervisors, charge nurses and orderlies, subject to Code of ethics etc. (Calamba Medical Center v. NLRC) [v. residency training as a pursuit of further education(UERMMMC v. Laguesma)] 4. No ER-EE relationship but one of Independent Contractor Arrangement a. Insurance Co. Commission agents b. Company colleting agents on commission basis c. Softdrink co. independent contractors selling softdrinks d. Shoe shine boys 5. EE v. Independent contractor [defn: an independent contractor is one who carries on a distinct and independent business and undertakes to

perform the job, work, or service on its own account and under its own responsibility according to its own manner and method, free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof.] - works at his own pleasure, in a manner he sees fit (Abante v. Lamadrid) * Newspaper columnist not an EE of newspaper but independent contractor; hired for unique talent, skill and experience, PDI not involved in the actual performance that produced the finished product, did not supply tools and instrumentalities needed to perform work (Orozco v. CA; similar to Sonza v. ABS-CBN Broadcasting) BUUUT off-camera talents are NOT independent contractors but EEs (Fulache v. ABS-CBN)

II. JOB CONTRACTING and LABOR-ONLY CONTRACTING ARRANGMENTS

1. Contracting out is valid as an exercise of management prerogative for as long as it complies with the limits and standards provided by the LC. reduction of EEs in a company made necessary by the introduction of services of an IC is justified when the IC is undertaken in order to effectuate more economic and efficient methods of production (burden of proof on EEs to show malice and arbitrariness) (Asian Alcohol v. NLRC) a. Proof of capitalization and control the legitimate job contractor must have the capitalization and equipment to undertake the sale and distribution of the manufacturers products and must do it on his own using its own means and selling methods (Coca-cola v. Dela Cruz). b. Should be done in good faith, pursuant to the ERs valid interest and not for the circumvention of EEs rights (Temic Automotive v. Temic Automotive Union)

c. Contracting out may be done regardless of whether such activity is peripheral or core in nature (Alviado v. P&G) 2. Valid Independent Contracting or subcontracting arrangements a. Concept of job-contracting arrangements (Trilateral relationship) (1) contract for a specific job principal and contractor/subcontractor, (2) contract of employment contractor and subcontractor b. Valid job contracting contractor carries on (1) independent business and (2) has substantial capital or investment in the tools, equipment, machineries, work premises and other materials necessary for the conduct of his business. c. Permissible job contracting/subcontracting principal agrees ti put out or farm out with a

LABOR LAW REVIEW MEMORY AID

Guiller-Kristoffer Lamug
contractor/subcontractor the performance or completion of a specific job within a definitive period. d. Elements of valid job contracting Independent Business on his own Account under his own Responsibility using his own Manner and methods Free from control and direction of principal. Has own substantial Capital or investment in the form of Tools, Equipment, Machinery, Work premises. Agreement assures contractual employees entitlement to ALL RIGHTS AND BENEFITS. e. Capitalization Requirement; other factors to be considered (1) Whether the contractor is carrying on an independent business (2) Nature and extent of work (3) Skill required (4) Term and duration of relationship (5) Right to assign the performance of specified pieces of work (6) Control and supervision (7) Power to EP with respect to hiring, firing and payment of workers of the contractor (8) Control of the premises (9) Duty ti supply premises, tools, appliances, materials and labor (10) Mode, manner and terms of payment 3. Labor-only contracting arrangements prohibited by law a. Labor-only contracting (1) no substantial capital or investment, (2) workers recruited are performing activities which are directly related to the principal business of ER b. Prohibition labor-only contractor serves merely as agent of the ER c. Effects (1) If labor-only illegal, ER deemed direct ER; intermediary is solidarily liable for all rightful claims of EEs (SMC v. MAERC Integrated Services) (2) If job contacting legal. ER is INDIRECT ER and is made solidarily liable with contractor for a more limited purpose [payment of unpaid wages and other monetary claims; violation of labor standards laws and ULP]; no ER-EE relationship between owner and EEs of contractor d. DOLE D.O. No. 18-02 S. 2002 (1) Mandatory registration of independent contractors for purposes of establishing an effective labor market information and monitoring; failure to register raises presumption of labor-only contracting (2) Other obligations of independent contractor (1) produce copy of contract between principal an contractor and contract of employment of contractual employee (2) Annual report [including (a) list of contracts (b) no. of workers covered (c) sworn undertaking that the mandatory imposed benefits have been made] government-

(3) Effect of non-compliance delisting of contractors (4) Job contracting negative list 1. Not done in good faith and not justified by the exigencies of the business (termination of regular employees and reduction of work hours or reduction/splitting of the bargaining unit) 2. Contarcting out with cabo [supplies workers to an ER, with or without monetary or other consideration whether in the capacity oof an agent of the ER or as an ostensible independent contractor] 3. Taking undue advantage of the economic situation or lack of bargaining strength of the contractual employee, undermining security of tenure or basic rights, or circumventing provisions of regular employment 4. In-house agency 5. Directly related to the business or operation of the principal by reason of a strike or lockout whether actual or imminent 6. Job performed by union members when such will interfere with the exercise of the rights to self organization. 4. DOLE Certification as sufficient proof of compliance with requirements certification gives rise to a presumption that contractor is a legitimate one [BUUUT when there are contradictory findings between CA and NLRC/LA, SC may consider other factors in determining WON a contractor complies with requisite elements of a legitimate subcontracting. 5. Effect of Failure to require contractor to post bond (LC Art. 108) owner of the project must answer for whatever liabilities the contractor may have incurred to his EEs without prejudice to reimbursement 6. Performing activities directly related to the main business of the principal duties performed are dependent and integral steps in or aspects of the essential operations of the principal (Kimberly v. Drilon) 7. Where principal exercises control, then Labor-only contracting arrangement principal has no right to control the conduct of the EEs as to the means employed to achieve an end; not the character of the activities as being usually necessary or desirable in the usual business of the ER.

III. CLASSIFICATION OF EMPLOYMENT

Article 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities

which are usually necessary or desirable in the usual

LABOR LAW REVIEW MEMORY AID

Guiller-Kristoffer Lamug
business or trade of the employer, except where the employment
has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.

deemed unsatisfactory. Not having done so, the ER may dismiss her now only upon proof of legal ground for separation of regular EEs (Holiday Inn v. NLRC). * ER shall make known to the EE at the time he is hired, the standards by which he will qualify as a regular EE, otherwise, he cannot be terminated for failure to comply with the criteria for regularship, he can only be removed for just or authorized causes (Aberdeen Court v. Agustin Jr.) BUUUUT there is no need to inform probationary EE that he has to follow company rules and regulations. Due process in failure to qualify as regular EE does not mean notice and hearing. *Requiring reasonable standards is management prerogative as long as exercised in good faith for the advancement of the ERs interests (Buiser v. Leogardo) *During the probationary period, EE enjoys security of tenure; a probationary EE cannot be terminated except for just cause during the period (Biboso v. Victorias Milling) *Probationary EE may be dismissed for cause at any time before expiration of 6mos if found unfit for the job provided there is due process; must be given ample opportunity to dispute the allegations of poor performance against him. *Burden of proof is upon ER to show just or authorized causes of dismissal by substantial evidence *Dissatisfaction must be real and in good faith *In a situation where the probationary status overlaps with a fixed-term contract not specifically used for a fixed term it offers, Art. 281 should assume primacy and the fixed period character of the contract must give way. NEW RULING: The lapse of an EEs probationary employment for a fixed term, without the latters subsequent appointment as a regular EE, will effectively sever the ER-EE relationship between the parties (Robinsons Supermarket Corp. V. Ranchez) c. PROJECT

1. As to nature job/work rendered by EE in relation to the usual trade of business of the ER a. REGULAR hired for activities which are necessary or desirable in the usual trade or business of the ER * REASONABLE CONNECTION RULE reasonable connection between particular activity performed and its relation to the usual business or trade of the ER. Connection can be determined by considering the nature of the work performed and its relation to the schemes of the particular business or trade in its entirety (De Leon v. NLRC) *Necessity/desirability is to be assessed in relation to the general scheme of the business or undertaking which should be viewed from a perspective of the business or trade in its entirety and not an a confined scope. (Magsalin v. National Organization of Working Men) *Repeated rehiring and continuing need for the EEs services are sufficient evidence of the necessity and indispensability of his services to the ERs business or trade (Baguio Country Club v. NLRC). b. PROBATIONARY hired generally for regular positions but are placed n a probationary status for a period of 6 mos; considered regular if they are allowed to work beyond the probationary period *to afford the ER an opportunity to observe the fitness of the probationary EE at work, and to ascertain whether he will become an efficient and proper EE (International catholic Migration Commission v. NLRC) *Length of time 6mos [except for: (1) Learnership no need for special skill not more than 3 mos/apprenticeship for highly technical industries more than 3mos; (2) teachers 3y; (3) agreement by parties for a longer term, give chance, based on liberality of ER, established to be company policy or is necessary because of the nature of the work] *Training period + probation period is double probation ER had ample time ti summarily terminate the EEs services during her period of probation if they were

d. TERM * A contract of employment for a definite period terminates by its own terms at the end of such period (Brent v. Zamora) decisive is the day certain agreed upon by the parties for the commencement and termination of their employment relation. BUUUUT should not be used to preclude tenurial security - if net effect is to render employment basically at the pleasure of the ER, then it is unlawful (Pakistan International airlines v. Ople) - if parties were not on equal footing, the presumption is that the term contract was entered into to circumvent right to security of tenure (ex. Hiring workers on the

LABOR LAW REVIEW MEMORY AID

Guiller-Kristoffer Lamug
same employment duration after expiration of term( Purefoods v. NLRC)) -term contract was executed years after EEs were hired *CRITERIA (1) Knowingly and voluntarily agreed upon (2) EE and ER dealt with each other on more or less equal terms (Pantranco v. NLRC) *Termination Nuances (1) lack of notice of termination is of no consequence (pangilinan v. General Milling Corp) (2) Non-renewal of an appointment for a definite and renewable period does not involve dismissal but an expiration of term (3) dismissal w/o just cause before expiration of term entitles EE to payment of salaries corresponding to the unexpired portion of the employment contract. e. SEASONAL f. CASUAL 2. As to rank hierarchy in the positions a. MANAGERIAL b. SUPERVISORY c. RANK-AND-FILE 2. Examples of the Exercise of Management Prerogatives a. Hiring of personnel and size of workforce ER has no obligation to keep in its payroll more EEs than are necessary for the operation of its business. Management has the right to terminate an EE for just or authorized cause. b. Terms and conditions upon hiring *reasonableness and compelling business necessity for which no alternative exists other than discriminatory practice BONA FIDE OCCUPATIONAL QUALIFICATION EXCEPTION: (a) employment qualification is reasonably related to the essential operation of the job involved (b) factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job DISPARATE TREATMENT discriminatory on its face (ex. No-spouse employment policies requiring EE of a particular sex to quit) DISPARATE IMPACT a facially neutral policy has a disproportionate effect on a particular class. i. Ban on spouses in same company Failed to show how marriage is detrimental or prejudicial to business operations (Star paper v. Simbol)

IV. MANAGEMENT PREROGATIVES

1. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied (Bisig v. NLRC) An ER is free to regulate, according to his own discretion and judgment all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay-off of workers and the discipline, dismissal and recall or work (SMC v. Ople) a. EE is given elbow room for profit to enhance chanes of making a profit; may be taken as freedom to administer the affairs of the business enterprise such that the cost of running it would be below the expected earnings or receipts (Agustin Chu v. NLRC) b. Elements for valid exercise in good faith for the advancement of the ERs interest and not for the purpose of defeating or circumventing the rights of the EEs under special laws or under valid agreements (SMC v. Layoc) c. Limitations law, CBA, general principles of fair play and justice; a line must be drawn between management prerogative regarding business operations per se and those which affect the rights of the EEs. In the latter, EEs should at least be properly informed (Abbot v. NLRC).

ii. Bona fide occupational qualification on stipulations against marriage to EE of competitor company relationship of this nature might compromise interests of ER. ER only aims to protects its interests against the possibility that a competitor company will gain access to its secrets and procedures (Duncan. V. Glaxo Wellcome) iii. Bona fide occupational qualification re: obesity and ERs weight requirement weight standards as continuing qualification of an EE; show ERs effort to comply with exacting obligations imposed upon it by law by virtue of being a common carrier (Yrasegui v. PAL) c. Non-compete and exclusivity clauses should not be contrary to public welfare, and restraint is reasonably necessary to afford a fair and reasonable protection to the contracting parties. Test of validity: (1) reasonably necessary for the protection of the contracting parties and (2) will not affect public interest or service (Red Line Transportation case) d. Qualification and change in law e. Discipline of EEs as controlled by substantive due process and tempered by policy of protection to labor. Penalty must be commensurate with the act imputed

LABOR LAW REVIEW MEMORY AID

Guiller-Kristoffer Lamug
on the EE and imposed in connection with ER;s disciplinary authority (Farrol v. CA) f. Transfer of EEs not motivated by discrimination or bad faith (PT&T v. Laplana); It is the prerogative of the ER to transfer an EE where he can be most useful to the company, an EE who refuses a valid transfer is guilty of insubordination (Pharmacia v. UPJOHN). BUUUT this cannot be used to rid himself of an undesirable EE (Blue Dairy v. NLRC) * when constructive dismissal unreasonable, inconvenient or prejudicial to EE; involves demotion of rank or diminution of salaries, benefits and other privileges. * EE cannot be promoted without his consent (PT&T v. CA) ** ER has the burden of proof of valid transfer g. Abolish positions complement and/or downsize personnel b. Requirements for registration i. Independent Union/Federations/National Unions ii. Local of Chapter Federations/National Unions c. Failure to comply with reportorial requirements shall no longer be a ground for cancellation of union registration, but shall subject errant officers/members to penalty d. Fewer grounds for cancellation of union registration e. ER is simply a bystander and can no longer oppose or participate in the certification proceedings

VI. APPROPRIATE BARGAINING UNIT

1. Appropriate Bargaining Unit a. Definition: group of EEs of a given ER, comprised of all or less than the entire body of EEs, which the collective interest of all the EEs, consistent with the equity to the ER, indicate to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law. b. Fundamental Factors: (1) will of EEs [Globe doctrine], (2) affinity and unity of EEs interest [Substantial Mutual Interest Rule - substantial similarity of work and duties, similarity of compensation and working conditions], (3) Prior collective bargaining history, and (4) similarity of employment status (SMC v. Laguesma) c. Test to determine constituency of a bargaining unit community or mutuality of interests substantial mutual interests in terms of employment and working conditions d. Appropriateness of bargaining unit must effect a grouping of EEs who have substantial, mutual interests in wages, hours, working conditions and other subjects of collective bargaining. 2. Certification election a. Definition: process of determining the sole and exclusive bargaining agent of the EEs in an ABU for purposes of collective bargaining i. v. Consent Election purpose is to determine the issue of majority representation of all workers in the ABU. ii. v. Voluntary Recognition In unorganized establishments with only one legitimate LO, the ER may voluntarily recognize the representation status of the union. (submit notice of voluntary recognition with Regional Office within 30d from such recognition); Effects enjoy rights, privileges and obligations of an existing bargaining agent; bar filing of a petition for certification election by any LO for 1y, afterwhich an LO can file petition for certification election UNLESS a CBA was executed and registered with the Regional Office

h. Abolish position due to company reorganization or merger i. Adoption of redundancy/retrenchment program to streamline operations resulting in the reduction of manpower complement in order to monimize or avert losses j. Promotion of EEs k. Imposition of productivity standards l. Bonus m. Change of working hours

V. RIGHT TO SELF ORGANIZATION

1. Existence of ER-EE relationship is essential for the determination of whether or not one may exercise right of self-organization for purposes of collective bargaining 2. Rationale for Unionization 3. Who may unionize for purposes of collective bargaining negotiations a. Any EE b. Exceptions i. Managerial EEs ii. Confidential EEs iii. Government EEs (including GOCCs with original charters) iv. Members of cooperatives v. EEs of International Organizations or Specialized Agencies vi. Aliens w/o valid working permits/ w/ valid working permits but nationals of countries not granting Filipinos to exercise right of selforganization and to join/assist Los 4. Salient Features of RA 9481 a. Allows commingling of supervisors unions and rank and file in same federation

LABOR LAW REVIEW MEMORY AID

Guiller-Kristoffer Lamug
iii. Nature an investigation of a non-adversarial fact-finding character in which the BLR plays the part of a disinterested investigator seeking the ascertain the desires of the EEs re: their representation. iv. Objectives: (1) determine ABU, (2) ascertain majority representation of the bargaining representative, if EEs desire to be represented at all by anyone v. Role of ER [GR] not a party because sole concern of workers; [exception: where ER has to file a petition for certification election when requested to bargain collectively BUUUT if union files petition for CE when precluded from doing so; contract bar rule, deadlock bar rule, certification year rule, the ER can actively participate and oppose the petition for CE vi. Venue and Jurisdiction: Regional Office having jurisdiction over principal office of ER [if different locations, at the option/choice of EEs (Nestle v. NLRC)]; Objection to venue should be raised on the first hearing, lotherwise, deemed waived. When To file * No CBA/ CBA not registered Anytime * With duly registered CBA - CONTRACT BAR RULE freedom period (w/in 60dprior to the expiry of the 5th year of the CBA) [exception: need for industrial stability is clearly shown to be imperative (Foamtex labor Union v. Noriel)] - ONE YEAR BAR RULE within one year from date of issuance of a final certification election result - DEADLOCK BAR RULE CE can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become a subject of a valid notice of strike or lockout to ensure stability in the relationshio of the workers and the management (National Congress of Unions in the Sugar Industry v. Trajano) Certification Election in an organized establishment * petition shall contain signatures of at least 25% of all EEs in ABU even if not complied with, discretionary on the part of the Med-Arb. If complied with, CE mandatory 9California Manufacturing v. Laguesma) 6. x. Requirements for an unregistered local affiliated with a National Federation to be considered a legitimate labor organization so that it can file a petition for certification election and be certified as sole and exclusive bargaining agent * (GR) local chapter to submit: (1) charter certificate and (2) constitution and by-laws, roster of officers and books of accounts [exception: estoppel] 3. Is a Petition to Cancel/revoke registration a Prejudicial Question to the Petition for Certification Election? NO. At the time union filed petition, it still had the legal personality (Pepsi Cola v. Secretary of Labor) Who can Vote in the Certification Election (1) All EEs sought to be represented irrespective of employment status (Reyes v. Trajano); Probationary EEs allowed to vote even if there is a provision in the CBA disqualifying them from voting because they have a substantial interest in the selection of the bargaining representative. They just need to belong to the bargaining unit (NUWHRAIN v. Secretary of Labor). (2) EEs who were terminated but who filed an illegal dismissal case in connection therewith because LC defines EEs as including one whose employment has ceased as a result of or in connection with any current labor dispute *Time of reckoning date of Med-Arbs Order granting conduct of certification elections [excpetion: when Order is appealed to the Secretary of Labor finality of Order dapat] - BUUUT additional workers hired pending appeal of the Med-Arbs Order are allowed to vote, holding otherwise would disenfranchise EEs hired during the pendency of the appeal 5. Retractions, Recantations or Withdrawals * The best forum to determine whether there were indeed retractions is the CE itself where the workers can freely express their choice in a secret ballot * made BEFORE filing of petition presumed voluntary unless theres convincing proof to the contrary * made AFTER filing of petition deemed involuntary (La Suerte Cigar v. Director of BLR) * Recantations are looked upon with disfavour especially in pro-forma affidavits Ees not totally free from ERs pressure, voluntariness becomes suspect 9Mariwasa v. Secretary of Labor) Procedure for Certification Election (1) Pre-election conference notice of pre-election conference shall be received 10d from conference; failure to appear considered waiver to be present and to question/object to any of the agreements reached.

4.

vii.

viii.

ix. CE in an Unorganized Establishment * immediate order for certification election shall be issued upon the filing of a petition by a legitimate labor organization (25% consent signature not applicable)

LABOR LAW REVIEW MEMORY AID

Guiller-Kristoffer Lamug
(2) Posting of Notice of Election at least 10d before actual date of election in 2 most conspicuous places in company premises; shall contain: (a) date and time, (b) names of contending unions, (c) description of the bargaining unit and the list of eligible and challenged voters; *cannot be waived (3) Certification Election Proper (a) Election Officer shall inspect polling place, ballot boxes and polling booths. (b) EO shall prepare ballots in English and Filipino or local dialect; ballots shall be signed at the back by EO and authorized representative of each contending unions and ER. (c) Voter must put a cross (x) or check (/) mark. (d) Challenging of votes Eo shall place ballot in an envelop which shall be sealed in the presence of the voter and the reps. Envelopes will be opened and question of eligibility passed upon onlny if the number of segregated voters will materially alter the results of the election. 7. Requirement to Have A Valid Election 50% + 1 of all eligible voters must have casted their votes Requirement for Certification of the Union * DOUBLE MAJORITY majority of all voters cast, union received majority of all votes cast; Abstentations are not valid votes * Failure of Elections no majority * Effect not bar filing of a motion for immediate holding of another CE within 6mos from date of declaration of failure of election * Motion EO shall schedule conduct of another CE within 15d from receipt of motion and cause posting of notice or CE at least 10d before election in 2 most conspicuous places. 9. Run-Off Elections; Elements and Nuances (1) between 3 or more choices (NO UNION is a choice), and no choice receiveing a majority of the valid votes cast (2) The total number of votes for all contending unions is at least 50% of the number of votes cast (3) Between the labor unions receiving the two highest number of votes * should be formalized with the Med-Arb within 5d from close of proceedings otherwise, waived or abandoned 12. Mixture of Rank and File and Supervisory EEs * After certificate of registration has been issued, its legal personality cannot be subject to a collateral attack. It may be questioned only in an independent petition for cancellation 13. Direct Certification No longer allowed * Declaration of a union as a sole bargaining representative of an ABU without election affirms superiority of CE. Where a union has filed a petition for CE, the mere fact that no opposition is made does not warrant a direct certification (Colgate v. Ople)

8.

10. Jurisdiction to determine ER-EE relationship in Certification Elections Med-Arb or Secretary of Labor BUT will not constitute res judicata in an illegal dismissal case 11. Protests and Other Questions Arising from the Conduct of the Election * should be in the minutes, otherwise, deemed waived