September 4 2013 Labor Rev

These are the kinds of elections in theThese are found in

the labor code, this is found in the jurisprudence. Theres
one more, petition for de-certification election. Thats
found in LVN vs Philippine Musicians Guild 1 Scra (i
dont know the page) 1961. Petition for certification
election can be filed either by a legitimate labor
organization or an employer when requested to bargain
collectively. Remember, when out of the blue, there is a
union that goes to the employer and says, here are our
bargaining proposals, let us now sit down and bargain
because we are the exclusive bargaining agent of the
bargaining unit. Now, the employer can now have under
the labor code and the rules that implement the labor code,
they can say, okay, lets sit down and bargain. And then
they can jointly submit a statement of voluntary
recognition under oath thats in the implementing rules,
the new implementing rules. And then the Department
BLR will put a stamp of approval by directly certifying the
union as the exclusive bargaining agent. Theres a problem
with that and that is the latest case of Sta. Lucia East
Commercial Corporation vs. Honorable Secretary 596
SCRA 92 August 14, 2009 case. Heres a union that files
a petition for the workers including supervisors, rank-and-
file and naay duha ka lugas na managers na naapil.
Dismissed by the Med Arbiter without prejudice to refiling
because you cannot have all these people in the same
bargaining unit. Dismissed. After they dismissed it, they
are applying for registration of a new union. Wala na tuy
labot tung uban. While the petition, their application to be
registered was pending, here comes management with
another union entering a collective bargaining agreement
and presenting it to dept of labor for registration/voluntary
recognition. The Supreme Court says, there can be no
voluntary recognition in an organized establishment.
Organized, wa pa man na union. When there is petition
pending for registration it seems the understanding of the
SC is that it is an organized establishment.
Thats the ruling in this case. So to add here, voluntary
recognition/direct certification. It is the process other than
certification election by which a union becomes an
exclusive bargaining agent. Before, there was no need to
apply or management to know and recognize a union.
They enter into a CBA. The CBA is registered. Then the
CBA now bars any petition for certification election. The
recognition by management is just antecedent to the
registration of a CBA. If the CBA is registered, you pay
the fee, it now bars any certification election. But then in
the Samahan case, 10 years ago, the SC held that ruling,
there was a certification election. The NFL union was the
only one running against no union. No union won. After
no union won, the NFL waited for 1 year because of the
certification year rule. At the end of 1 year, on the first day
after the anniversary of the election, NFL filed for another
petition for certification election because NFL was just lost
by a handful of votes. When they filed this petition after 1
year, management moved to dismiss. Why? Barred by a
registered certified collective bargaining agreement. They
had in the meantime recognized another union and they
entered into a CBA, and they registered it. Is that valid?
Supreme Court says, no that is not valid. In that ruling the
SC said, there is need for a certification election. This
recognition is impossible according to the SC. Why? Less
than a year ago, this bargaining unit rejected the notion of
representation in a certification election. Thats a free
decision because it is by secret ballot. Why all of a sudden
they chose an exclusive bargaining representative. That is
only the machination of the management. Inimbento to.
Company union to. That is what the supreme court said.
Now, here we are, this Sta Lucia case. They filed a
certification of election, wa gani maka.hold of certification
election. kay ngano man? the bargaining unit was wrong
so they re-registered a union. This time without the
supervisors. While they are applying for registration,
management recognizes another union, they go to the
Department of Labor. The Department of Labor directly
certifies. Supreme Court says, you cannot go through
voluntary recognition if it is an organized establishment.
Ngano organized man? kay naa namay union. Nasayop
lang to sila pag file. My point to your attention the
definition in the rules to implement the labor code, the
definition of certification election/consent election, pareho
na. In fact the definition says with or without, ah. Thats
found in Book 5 Rule 1 section 1 letter H. Certification
eletion or consent election. It says, refers to the process of
determining through secret ballot the sole and exclusive
representative of the employees in an appropriate
bargaining unit for purposes of collective bargaining or
negotiation. The certification election is ordered by the
Department while the consent election is voluntarily
agreed upon by the parties with or without the intervention
of the department. I told you how self defeating this
definition is. Does not make sense. Why? If consent
election is the same as certification election there must be
a certain certification. If there is a certification, it involves
a third party who will certify it. Then it says, there is not
even a need for the department to intervene. kinsa man
mo-certify, na nagkasabot man mong duha. Mahimo ba na
magminyo, kamo ra duha. ha? wa man. Whoever wrote
this implementing rule must not be a lawyer. Its like a
stupid as audited financial statement pero walay auditor.
ikaw ray nagpahigawas sa imung statement under your
oath na kani maoy tinuod which is a gratuitous assertion.
somebody has to say, kana iyang gisulti correct na, tinuod
na. But that this is the union declared the exclusive
bargaining agent thats correct because I was there. I
supervised the election and the election was carried out in
accordance with the rules. Therefore, proclaimed. dba?
mao manay trabaho sa COMELEC. makabuhat ba diay ta
ug election na walay comelec? Kinsa may mu-proclaim sa
winner? wa nay kinahanglan ug botuhanan, rakrakan
nalang nimo tanan. :D Thats the whole idea of the
certification. Now. remember, a certification election
number 1 condition for its validity is that at least a
majority of the eligible voters of the bargaining unit must
participate. Then it is a valid election. kinsa may
makadaog? the one who gets a majority of the valid votes
cast. Usa ka.gatos kabuok, naa sa sulod sa bargaining unit,
pila may kinahanglan aron ma.valid ang election? 50+1.
thats majority, is it not? 50%+1 is majority. 50%+1 cast
their ballot, they participate. What happens if 20 of the
ballots cast are invalid? kinsa man ilang gi-botohan didto?
si Duterte. :D ang imung mga gipangbutang ana, sayop
imung mga boto. di, only 40 ballots will be considered. Is
that still a valid election? Yes. Because majority (50+1)
participated. The valid votes are only 40. kinsa may
makadaog anang electiona? kanang makakuha ug 21
nianang 40. mao nay daog. Is that a majority of the
bargaining unit? No! That is the crazy thing about election
here. Election is only plurality, its not majority. majority
ba diay makapa.elect nimo? dili. dili majority. Ug ang
kalaban makumbinsi nimo ayaw mo ug boto, ayaw ninyo
palabii, pildi nako ayaw nalang mo ug boto. ug dili sila
muboto, oh di daog ka, bisag 20 ra to kabuok niboto. :D
Now. if majority of the eligible voters do not participate
and there is an election, what is the result? Failed election.
Failed. you have to have another election. This time, make
sure that majority of the eligible voters participate. So, to
the question: Is a second certification election always a
run-off election? the answer is no. if the first election was
failed because not the majority of the eligible voters
participated then you will have to schedule another
election. Even that you need a third party to certify that.
kinsa may mu.ingon na failed ang election? It must be an
authority, a third person. That is the BLRthe Med
Arbiter, you must seek and schedule another date for
election. That is why this consent election definition is
impractical. it is as if you are saying management lutuan
na tanan mahimo nimo thats the writing behind the lines
of this definition. Now, when do you have a run-off
election?
1. if you have had a valid election before.
2. In that valid election, there were at least 3
choices. 3 choices. And then none of the choices received
a majority of the valid votes cast.
3. And then the votes of the unions is at least 50%
in all. Then you have a run-off election.
Those are provisions. Question: Can you have a
certification election if theres only one union running?
Yes. you can. What are the choices? Union A and No
Union. Why? kinsa mani si No Union? kinsa mani na
kandidato? Its the supreme court who said in Quijano vs
CIR reiterated in Victoriano vs. Victoriano Workers
Assoc., that the right to self-organization is not only the
right to form, join, and assist a union of ones choice but
also not to join any union. Even if you have only one
union, it is incumbent upon you to hold a certification
election. Why? because a certification election is the best,
the optimum method in arriving at the choice of the
bargaining unit. Bargaining unit in a certification election
proceeding, there is a determination of two factual
proceedings:
1. What is the will of the bargaining unit. do they
want representation or no representation? I tell you, for the
first time, that is brought out in the latest case that i told
you. This BPI. brought out there. The first issue to be
determined in the certification election proceeding is
whether or not this is the bargaining unit and what is its
choice. If it wants representation, then, that will go to the
next question.
2. Who is the representative. That is determined in
the election proper.
Now, run-off election, 3 choices. so in the very least you
have two unions running and No Union, in the very least.
why is there a requirement that 50% of the votes must be
votes for the unions but none of them receives majority of
the valid votes cast? because, if No Union receives already
the majority of the valid votes cast, wa na, humana, daog
na. If it is less than the majority of the valid votes cast,
then, at least 50% ni-a sa duha. Thats the only
mathematical choice that you have. None of them receives
majority of the valid votes cast. So what is the contest in a
run-off election? The two choices with the highest number
of votes is the one that is running for the run-off election.
Can it be union A or no union? it can never be. It can only
be either No Union wins or two unions go through a run-
off election.
Alright. what is a referendum? remember, this has got to
do with the an allegiance to the federation. For it to be a
valid disaffiliation, overwhelming majority of the those in
the bargaining unit must withdraw their allegiance from
their assisting representative and then choose another
union federation. But no other terminology based on 9481.
a local or a chapter is a workplace union that has no
independent registration. How was it registered? the
federation that has registration issues a chapter certificate
and then the local chapter now becomes a union with
sufficient personality to file a petition for certification
election. An affiliate is a workplace union that has an
independent registration. Theyve accomplished an
independent registration. Subsequently, they affiliate with
a federation. Ngano mu-affiliate pa man siyag federation?
because they feel inadequate. federation has so many
resources. In effect, the affiliate has a double __
personality because it can disaffiliate from the mother
federation without having to affiliate to another federation.
Why? because it can stand on its own. it has its own
independent registration. and the SC has already said, that
a local chapter that disaffiliates from the federation and
does not affiliate to any other federation is no longer a
legitimate labor organization. So, that the big difference ha
between an affiliate and a chapter or a local. Both can file
a petition for certification election. But once the local or
the chapter disaffiliates or it does not affiliate to another
federation, they have lost their personality to act for and in
behalf of any collective appropriate bargaining unit.
Alright. Plebiscite. plebiscite happens despite bargaining
history. What is bargaining history? Bargaining history is
the first criterion for the appropriateness of the bargaining
unit. If you have been in the past, a bargaining unit that is
appropriate with your own exclusive bargaining agent and
you have entered into a CBA, you are presumed to remain
the same bargaining unit. When can you cease to be the
appropriate bargaining unit? If there has been in the
meantime a substantial compelling historical change.
Pareha ining Mechanical (case) ni JBL Reyes. nidaghan
ang mga mekaniko, na sila sa general bargaining unit.
and they have now clamoured to be separated. So,
following Globe Doctrine, pronounced by the National
Labor Relations Board of the United States, it is the
entirety of the original bargaining unit that must vote to
determine whether they will remain as one or they will
now be separated. The will of the workers splitting a craft
unit from a general bargaining unit. You need a plebiscite.
Remember, a plebiscite cannot be prevented just because
there is still a collective bargaining agreement that is
existing. A referendum cannot be prevented just because
there is still an existing bargaining unit. In other words, the
contract bar rule does not prevent a bargaining unit from
asking for a referendum or a plebiscite. It is not barred.
Why? Because according to Benguet vs. Benguet, what
will happen is only a change in exclusive bargaining
representative. The CBA will continue and there is just a
substitution that would come. Now, what is de-
certification election? De-certification election is proper
during the last 60 days of the collective bargaining
agreement. It is supposed to be the freedom period. Now,
if you allow only unions to file a petition for certification
election during the freedom period, then that so-called
freedom period will be less than free. Why? Because
freedom, in the exercise of the right to self organization is
not only the right to form, join and assist the labor
organization of ones choice, it is also the freedom not to
join. So naa kana sa 60 day freedom period, suppose
muusab ang inyong huna2 na dili namo gusto
magpahimuwa, na you want to go back to individual
contracts of employment. Muingon ka, ngano man na
gusto man mo mubalik? Welders man mi unya of the
welders of the Philippines have gone to Japan kay tua sila
mag welding didto unya kuwangan na kaayo dinhi. wa na,
di na ta kinahanglag union, we can bargain by ourselves.
ako gusto ko mu-bargain, half-day nalang ko mutrabaho.
Ngano man? mag welding2 ko, mamuhat nako ug jeepney,
mamuhat nakog duwaan dinha o unsa ba. Mao nay akong
buhaton. I dont want a union. Can I file a petition for de-
certification election? Mao ni. You are asking that in an
organized establishment in the last 60 days there will be an
election and the choice will be the incumbent union or no
union. Ang incumbent, dili man gyud na mu.file ug
petition for certification during the 60-day freedom period.
Ngano dili man siya mo-file? pagka.upos sa 60-day
freedom period balik man na siya ang exclusive bargaining
agent. Wa na sad lain maka.file ug petition. mu-utong na
lang siya. Hantod maupos nang 60-day freedom period.
kinsa ra may maka file dinhi? 25% of the bargaining unit,
single individual workers will sign the petition and the
petition is denominated as Petition for De-certification
Election. Ang kalaban ninyo ang kanang union. kumpanya
mo sa imung mga kauban. Balik ta sa walay union. That is
recognized in LVN vs. Philippine Musicians Guild. No
commentator wants to talk about that because I think they
do not understand it. They do not know it. But it is there in
the statute. Now, I told you about voluntary recognition,
direct certification. There is a process now by which there
is intervention on the part of the Dept. of Labor. but I tell
you that the cases so far that have been decided by the SC
they have all been shutting down voluntary recognition
under those circumstances. First circumstance: you cannot
file for voluntary recognition within the 1 year certification
year rule. 1 year from and after the results of certification
election is the least there can be no petition for
certification election neither can there be voluntary
recognition if the one that wins in a certification election is
No Union.
Second rule (circumstance): this Sta. Lucia case. If there
is a petition that is filed, it is dismissed and then there is a
pending registration/re-registration of a union, part of the
one who filed was dismissed. You cannot go through a
voluntary recognition according to the SC. because that is
already an organized establishment. So at least those two
instances you know there cannot be a voluntary
recognition.
Alright? We are ready for the next exam. :P