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-andfile 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 runoff 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 decertification 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 decertification 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