V.

THE APPROPRIATE COLLECTIVE BARGAINING UNIT

A. Law and Dofinitlon-267 (255); 251(b) (242); Book V, Rule 1, Sec. 1(d)

 Belyca Corporation v. Hon. Calleja & ALU-TUCP, 168 S 184 (88)

FACTS

private respondent Associated Labor Union (ALU)-TUCP, a legitimate labor

organization duly registered with the Ministry of Labor and Employment, filed with the
Regional Office Ministry of Labor and Employment, a petition for direct certification as
the sole and exclusive bargaining agent of all the rank and file employees/workers of
Belyca Corporation employing approximately 205 rank and file employees/workers, the
collective bargaining unit sought in the petition, or in case of doubt of the union’s
majority representation, for the issuance of an order authorizing the immediate holding
of a certification election

Respondent employer, alleged in its position paper, among others,

(1) that due to the nature of its business, very few of its employees are permanent, the
overwhelming majority of which are seasonal and casual and regular employees;

(2) that of the total 138 rank-andfile employees who authorized, signed and supported
the filing of the petition
(a) 14 were no longer working as of June 3, 1986
(b) 4 resigned after June, 1986
(c) 6 withdrew their membership from petitioner union
(d) 5 were retrenched on June 23, 1986
(e) 12 were dismissed due to malicious insubordination and destruction of
property and
(f) 100 simply abandoned their work or stopped working;

(3) that the 128 incumbent employees or workers of the livestock section were merely
transferred from the agricultural section as replacement for those who have either been
dismissed, retrenched or resigned; and

(4) that the statutory requirement for holding a certification election has not been
complied with by the union
The Labor Arbiter granted the certification election sought for by petitioner union

Corporation, appealed the order of the Labor Arbiter to the Bureau of Labor Relations
in Manila which denied the appeal

ISSUES

WHETHER OR NOT THE PROPOSED BARGAINING UNIT IS AN APPROPRIATE

BARGAINING UNIT.

WHETHER OR NOT THE STATUTORY REQUIREMENT OF 30% (NOW 20%) OF THE

EMPLOYEES IN THE PROPOSED BARGAINING UNIT, ASKING FOR A
CERTIFICATION ELECTION HAD BEEN STRICLTY COMPLIED WITH.

RULING

1. Court has already taken cognizance of the crucial issue of determining the proper
constituency of a collective bargaining unit.

The factors considered in Democratic Labor Association v. Cebu Stevedoring Co. Inc.
are:
“(1) will of employees (Glove Doctrine);
(2) affinity and unity of employee’s interest, such as substantial similarity of
work and duties or similarity of compensation and working conditions;
(3) prior collective bargaining history; and
(4) employment status, such as temporary, seasonal and probationary
employees”.

In that case, the Court stressed the importance of the fourth factor and sustained the
trial court’s conclusion that two separate bargaining units should be formed in dealing
with respondent company, one consisting of regular and permanent employees and
another consisting of casual laborers or stevedores.

in a later case, where the employment status was not at issue but the nature of work of
the employees concerned; the Court stressed the importance of the second factor
otherwise known as the substantial mutual-interest test

in PLASLU v. CIR, the Court held that among the factors to be considered are:
employment status of the employees to be affected, that is the positions and categories
of work to which they belong, and the unity of employees’ interest such as substantial
similarity of work and duties.
whether importance is focused on the employment status or the mutuality of interest of
the employees concerned “the basic test of an asserted bargaining unit’s acceptability is
whether or not it is fundamentally the combination which will best assure to all
employees the exercise of their collective bargaining rights

in the case at bar, it is beyond question that the employees of the livestock and agro
division of petitioner corporation perform work entirely different from those
performed by employees in the supermarts and cinema.

To lump all the employees of petitioner in its integrated business concerns cannot result
in an efficacious bargaining unit comprised of constituents enjoying a community or
mutuality of interest. Undeniably, the rank and file employees of the livestock-agro
division fully constitute a bargaining unit that satisfies both requirements of
classification according to employment status and of the substantial similarity of work
and duties which will ultimately assure its members the exercise of their collective
bargaining rights.

2.

124 employees or workers which are more than a majority of the rank-and-file
employees or workers in the proposed bargaining unit had signed membership with
respondent ALU-TUCP and had expressed their written consent and authorization to
the filing of the petition.

30% of the statutory requirement under Art. 258 of the Labor Code has been met.

petitioner corporation contends that after some time, 119 employees resigned, withdrew
membership, retrenched, dismissed or abandoned their work.

Petitioner’s claim was however belied by the Memorandum of its personnel officer to
the 119 employees showing that the employees were on strike, which was confirmed by
the finding of the Bureau of Labor Relations. They were dismissed and a complaint for
unfair labor practice, illegal dismissal etc. was filed by the Union in their behalf against
petitioner corporation and President and General Manager for unfair labor practice,
illegal dismissal, illegal lockout, etc.

Under Art. 257 of the Labor Code once the statutory requirement is met, the Director of
Labor Relations has no choice but to call a certification election

It is significant to note that 124 employees out of the 205 employees of the Belyca
Corporation have expressed their written consent to the certification election or more
than a majority of the rank and file employees and workers; much more than the
required 30% and over and above the present requirement of 20% by Executive Order
No. 111 and applicable only to unorganized establishments under Art. 257, of the Labor
Code, to which the BELYCA Corporation belong

any doubt cast on the authenticity of signatures to the petition for holding a certification
election cannot be a bar to its being granted

once the required percentage requirement has been reached, the employees’ withdrawal
from union membership taking place after the filing of the petition for certification
election will not affect said petition. On the contrary, the presumption arises that the
withdrawal was not free but was procured through duress, coercion or for a valuable
consideration

until a decision, final in character, has been issued declaring the strike illegal and the
mass dismissal or retrenchment valid, the strikers cannot be denied participation in the
certification election

B. Determination of Appropriate Bargaining Unit - Proper Constituency

1. Factors-Unit Determination

 U.P. v. Hon. Ferrer-Calleja, 211 S 451 (92)

FACTS

The case was initiated by a petition filed by a registered labor union, the “Organization
of Non-Academic Personnel of UP” (ONAPUP). Claiming to have a membership
comprising more than 33% of persons constituting the non-academic personnel of UP-
Diliman, Los Baños, Manila, and Visayas, it sought the holding of a certification election
among all said non-academic employees of the University of the Philippines. the
University stated that it had no objection to the election.

another registered labor union, the “All UP Workers’ Union, Alleging that its
membership covers both academic and non-academic personnel, and that it aims to
unite all UP rank-and-file employees in one union, it declared its assent to the holding
of the election provided the appropriate organizational unit was first clearly defined.
the University, through its General Counsel, stated that there should be two (2) unions:
one for academic, the other for non-academic or administrative, personnel

director Calleja declared that “the appropriate organizational unit xx should embrace
all the regular rank-and-file employees, teaching and non-teaching, of the University of
the Philippines, including all its branches” and that there was no sufficient evidence “to
justify the grouping of the nonacademic or administrative personnel into an
organization unit apart and distinct from that of the academic or teaching personnel.

The Director thus commanded that a certification election be “conducted among rank-
and-file employees, teaching and non-teaching” in all four autonomous campuses of the
UP,

the University filed a Manifestation seeking the exclusion from the organizational unit
of those employees holding supervisory positions among non-academic personnel, and
those in teaching staff with the rank of Assistant Professor or higher

the ONAPUP stated that it was not opposing the University’s proferred classification of
rank-and-file employees. On the other hand, the “All UP Workers’ Union” opposed the
University’s view

Director Calleja in resolving the “sole issue” of “whether or not professors, associate
professors and assistant professors are included in the definition of highlevel
employee(s)” in light of Rule I, Section (1) of the Implementing Guidelines of Executive
Order No. 180, defining “high level employee” as follows:

“1. High Level Employee—is one whose functions are normally considered policy
determining, managerial or one whose duties are highly confidential in nature. A
managerial function refers to the exercise of powers such as:

1. To effectively recommend such managerial actions;

2. To formulate or execute management policies and decisions; or
3. To hire, transfer, suspend, lay-off, recall, dismiss, assign or discipline
employees.”

The Director adjudged that said teachers are rank-and-file employees “qualified to join
unions and vote in certification elections.

ISSUES
whether or not professors, associate professors and assistant professors are “high-level
employees” “whose functions are normally considered policy determining, managerial
or xx highly confidential in nature.”

whether or not, they, and other employees performing academic functions, 12 should
comprise a collective bargaining unit distinct and different from that consisting of the
non-academic employees of the University, 13 considering the dichotomy of interests,
conditions and rules existing between them

RULING

1. In light of Executive Order No. 180 and its implementing rules, as well as the
University’s charter and relevant regulations, the professors, associate professors
and assistant professors (hereafter simply referred to as professors) cannot be
considered as exercising such managerial or highly confidential functions as
would justify their being categorized as “high-level employees” of the
institution.

it is evident that it is the University Academic Personnel Committee, composed

of deans, the assistant for academic affairs and the chief of personnel, which
formulates the policies, rules and standards respecting selection, compensation
and promotion of members of the academic staff. The departmental and college
academic personnel committees’ functions are purely recommendatory in nature,
subject to review and evaluation by the University Academic Personnel Board.

the personnel actions that may be recommended by the departmental and college
academic personnel committees must conform with the general guidelines
drawn up by the university personnel academic committee.

The power or prerogative pertaining to a high-level employee “to effectively

recommend such managerial actions, to formulate or execute management
policies or decisions and/or to hire, transfer, suspend, lay-off, recall, dismiss,
assign or discipline employees” 23 is exercised to a certain degree by the
university academic personnel board/committees and ultimately by the Board of
Regents in accordance with Section 6 of the University Charter,

the policy-determining functions of the University Council are subject to review,

evaluation and final approval by the Board of Regents. The Council’s power of
discipline is likewise circumscribed by the limits imposed by the Board of
Regents.
the recommendatory powers of the departmental and college academic
personnel committees applies with equal force to the alleged policy-determining
functions of the University Council. Even assuming arguendo that UP professors
discharge policy-determining functions through the University Council, still
such exercise would not qualify them as highlevel employees within the context
of E.O. 180

University of the Philippines represents the government as an employer. ‘Policy-

determining’ refers to policydetermination in university matters that affect those
same matters that may be the subject of negotiation between public sector
management and labor

The policy-determining functions of the University Council refer to academic

matters,

Even Executive Order No. 180 already adverted to is not much help. All it says,
in its Section 9, is that “(t)he appropriate organizational unit shall be the
employer unit consisting of rank-and-file employees, unless circumstances
otherwise require.”

the “community or mutuality of interests” test has provided the standard in

determining the proper constituency of a collective bargaining unit.
In the case at bar, the University employees may be categorized into two
general classes: one, the group composed of employees whose functions are
nonacademic, and two, the group made up of those performing academic
functions,

The formation of two separate bargaining units, the first consisting of the rank-
and-file non-academic personnel, and the second, of the rank-and-file academic
employees, is the set-up that will best assure to all the employees the exercise of
their collective bargaining rights. These special circumstances, the dichotomy of
interests and concerns as well as the dissimilarity in the nature and conditions of
work, wages and compensation between the academic and non-academic
personnel, bring the case at bar within the exception contemplated in Section 9 of
Executive Order No. 180.

 See again: Holy Child Cath. School v. Hon. Sto. Tomas & HCCS-TELU-
PIGAS, 701 SCRA 589 (July 23, 2013) Re: J. Brion’s concurring op. pp. 623-
634; p. 4, Syllabus
Strength in number as consideration must take a back seat if we are talking about
commonality of interest

2. "Community or Mutuality of interests test

 Erson Ang Lee doing business as "Super Lamination Services" v.

Samahang Manggagawa ng Super Lamination (SMSLS-NAFLU-KMU),
GR No. 193816; Nov. 21, 2016

FACTS

Respondent Samahan ng mga Manggagawa ng Super Lamination Services (Union A) is

a legitimate labor organization, which is also a local chapter affiliate of the National
Federation of Labor Unions-Kilusang Mayo Uno.

Super Lamination is a sole proprietorship under petitioner’s name, while Express

Lamination and Express Coat are duly incorporated entities separately registered with
the Securities and Exchange Commission (SEC)

Union A filed a Petition for Certification Election to represent all the rank-and-file
employees of Super Lamination

on the same date, Express Lamination Workers’ Union (Union B) also filed a Petition for
Certification Election to represent all the rank-and-file employees of Express
Lamination.

the same date, the Samahan ng mga Manggagawa ng Express Coat Enterprises, Inc.
(Union C) filed a Petition for Certification Election to represent the rank-and-file
employees of Express Coat.

Super Lamination, Express Lamination, and Express Coat, claimed that the petitions
must be dismissed on the same ground — lack of employeremployee relationship
between these establishments and the bargaining units that Unions A, B, and C seek to
represent as well as these unions’ respective members.

All three Petitions for Certification Election of the Unions were denied.

On appeal, The unions argued that their petitions should have been allowed
considering that the companies involved were unorganized, and that the employers had
no concomitant right to oppose the petitions. They also claimed that while the
questioned employees might have been assigned to perform work at the other
companies, they were all under one management’s direct control and supervision.
The DOLE ordered the immediate conduct of certification election among the rank-and-
file employees of Express Lamination Services, Inc., Super Lamination Services and
Express Coat Enterprises, Inc.,

ISSUES

1. Whether the application of the doctrine of piercing the corporate veil is warranted.

2. Whether the rank-and-file employees of Super Lamination, Express Lamination, and

Express Coat constitute an appropriate bargaining unit.

RULING

An application of the doctrine of piercing the corporate veil is warranted.

Petitioner argues that separate corporations cannot be treated as a single bargaining

unit even if their businesses are related, as these companies are indubitably distinct
entities with separate juridical personalities. IT IS THE GENERL RULE.

The Court had disregarded separate juridical personalities under the doctrine of
piercing the corporate veil. It has done so in cases where a separate legal entity is used
to defeat public convenience, justify wrong, protect fraud, or defend crime, among
other grounds.

A settled formulation of the doctrine of piercing the corporate veil is that when two
business enterprises are owned, conducted, and controlled by the same parties, both
law and equity will, when necessary to protect the rights of third parties, disregard the
legal fiction that these two entities are distinct and treat them as identical or as one and
the same.

In this case, a certification election was ordered to be held for all the rank-and-file
employees of Super Lamination, Express Lamination, and Express Coat. The three
companies were supposedly distinct entities based on the fact that Super Lamination is
a sole proprietorship while Express Lamination and Express Coat were separately
registered with the SEC.

Super Lamination, Express Lamination, and Express Coat are under the control and
management of the same party — petitioner Ang Lee.

Further, from the synchronized movements of petitioner and the two other companies
an attempt to frustrate or defeat the workers’ right to collectively bargain through the
shield of the corporations’ separate juridical personalities.
Therefore, it is only proper that, in order to safeguard the right of the workers and
Unions A, B, and C to engage in collective bargaining, the corporate veil of Express
Lamination and Express Coat must be pierced.

The bargaining unit of the rank-and-file employees of the three companies is

appropriate.

Petitioner argues that there is no showing that the rank-and-file employees of the three
companies would constitute an appropriate bargaining unit on account of the latter’s
different geographical locations. NO.

The basic test for determining the appropriate bargaining unit is the application of a
standard whereby a unit is deemed appropriate if it affects a grouping of employees
who have substantial, mutual interests in wages, hours, working conditions, and other
subjects of collective bargaining.

Geographical location can be completely disregarded if the communal or mutual

interests of the employees are not sacrificed.

In the present case, there was communal interest among the rank-and-file employees
of the three companies based on the finding that they were constantly rotated to all
three companies, and that they performed the same or similar duties whenever
rotated. Aside from geographical location, their employment status and working
conditions were so substantially similar as to justify a conclusion that they shared a
community of interest.

This finding is consistent with the policy in favor of a single-employer unit, unless the
circumstances require otherwise. The more solid the employees are, the stronger is their
bargaining capacity

 See: San Miguel Foods, Inc. v. SMC Supervisors and Exempt Union, GR
No. 146206; Aug. 1, 2011

FACTS

In San Miguel Corporation Supervisors and Exempt Union v. Laguesma, the Court
held that even if they handle confidential data regarding technical and internal business
operations, supervisory employees 3 and 4 and the exempt employees of petitioner San
Miguel Foods, Inc. (SMFI) are not to be considered confidential employees, because the
same do not pertain to labor relations, particularly, negotiation and settlement of
grievances. Consequently, they were allowed to form an appropriate bargaining unit
for the purpose of collective bargaining. The Court also declared that the employees
belonging to the three different plants of San Miguel Corporation Magnolia Poultry
Products Plants in Cabuyao, San Fernando, and Otis, having “community or mutuality
of interests,” constitute a single bargaining unit. They perform work of the same nature,
receive the same wages and compensation, and most importantly, share a common
stake in concerted activities. It was immaterial that the three plants have different
locations as they did not impede the operations of a single bargaining representative.

Pursuant to the Court’s decision (DOLE-NCR) conducted pre-election conferences.3

However, there was a discrepancy in the list of eligible voters,

Med-Arbiter directed the Election Officer to proceed with the conduct of certification
election, a certification election was conducted.

On the date of the election, petitioner filed the Omnibus Objections and Challenge to
Voters, questioning the eligibility to vote by some of its employees on the grounds that
some employees do not belong to the bargaining unit which respondent seeks to
represent or that there is no existence of employer-employee relationship with
petitioner.

the Med-Arbiter issued the Order stating that since the “Yes” vote received 97% of the
valid votes cast, respondent is certified to be the exclusive bargaining agent of the
supervisors and exempt employees of petitioner’s Magnolia Poultry Products Plants in
Cabuyao, San Fernando, and Otis.

On appeal, the then Acting DOLE Undersecretary, in the Resolution affirmed the Order
with modification that some employees be excluded from the bargaining unit for being
members of Magnolia Poultry Processing Plants Monthly Employees Union and
employees of San Miguel Corporation, which is a separate and distinct entity from
petitioner.

ISSUES

The issues in the present case, relating to the inclusion of employees in supervisor levels
3 and 4 and the exempt employees in the proposed bargaining unit, thereby allowing
their participation in the certification election; the application of the “community or
mutuality of interests” test; and the determination of the employees who belong to the
category of confidential employees

RULING
An appropriate bargaining unit is defined as a group of employees of a given employer,
comprised of all or less than all of the entire body of employees, which the collective
interest of all the employees, consistent with equity to the employer, indicate to be best
suited to serve the reciprocal rights and duties of the parties under the collective
bargaining provisions of the law.

In National Association of Free Trade Unions v. Mainit Lumber Development Company

Workers Union—United Lumber and General Workers of the Phils:

 the Court, taking into account the “community or mutuality of interests” test,
ordered the formation of a single bargaining unit consisting of the Sawmill
Division in Butuan City and the Logging Division in Zapanta Valley, Kitcharao,
Agusan [Del] Norte of the Mainit Lumber Development Company. It held that
while the existence of a bargaining history is a factor that may be reckoned with
in determining the appropriate bargaining unit, the same is not decisive or
conclusive. Other factors must be considered. The test of grouping is community
or mutuality of interest.
 Certainly, there is a mutuality of interest among the employees of the Sawmill
Division and the Logging Division. Their functions mesh with one another. One
group needs the other in the same way that the company needs them both.
There may be differences as to the nature of their individual assignments, but
the distinctions are not enough to warrant the formation of a separate bargaining
unit.

Applying the ruling to the present case, the Court affirms the finding of the CA that
there should be only one bargaining unit for the employees in Cabuyao, San Fernando,
and Otis of Magnolia Poultry Products Plant involved in “dressed” chicken processing
and Magnolia Poultry Farms engaged in “live” chicken operations. Certain factors, such
as specific line of work, working conditions, location of work, mode of compensation,
and other relevant conditions do not affect or impede their commonality of interest.
Although they seem separate and distinct from each other, the specific tasks of each
division are actually interrelated and there exists mutuality of interests which warrants
the formation of a single bargaining unit.

3. Unit Severance and Globe Doctrine

  Mechanical Department Labor Union v.CIR & Samahan ng
Manggagawa sa Coloocan Shops, 24 S 925 (68)

FACTS

The case started when a petition of the respondent "Samahan ng mga Manggagawa,
etc." calling attention to the fact that there were three unions in the Caloocan shops of
the Philippine National Railways:

 the "Samahan", the "Kapisanan ng Manggagawa sa Manila Railroad Company",

and the Mechanical Department Labor Union;
 that no certification election had been held in the last 12 months in the Caloocan
shops;
 that both the "Samahan" and the Mechanical Department Labor Union had
submitted different labor demands upon the management for which reason a
certification election was needed to determine the proper collective bargaining
agency for the Caloocan shop workers.

The petition was opposed by the management .as well as by the Mechanical
Department Labor Union,

The main issues was: Whether or not a new unit should be established, the Caloocan
shops, separate and distinct from the rest of the workers under the Mechanical
Department now represented by the Mechanical Department Labor Union.

The Caloocan Shops, all located at Caloocan City have 360 workers more or less. It is
part and parcel of the whole Mechanical Department of the Philippine National
Railways. The department is composed of four main divisions or units

The trial judge then reviewed the collective bargaining history of the Philippine
National Railways, that originally, there was only one bargaining unit in the com-pany,
represented by the Kapisanan Ng Manggagawa sa MRR.

In view of its findings and the history of union representation in the railway company,
indicating that bargaining units had been formed through separation of new units from
existing ones whenever plebiscites had shown the workers' desire to have their own
representatives, and relying on the "Globe doctrine"

The trial judge held that the employees in the Caloocan Shops should be given a chance
to vote on whether their group should be separated from that represented by the
Mechanical Department Labor Union, and ordered a plebiscite held for the purpose
ISSUES

RULING

The ruling was sustained by the Court en banc; wherefore, the Mechanical Department
Labor Union appealed to this Court, questioning the applicability under the
circumstances of the "Globe doctrine" of considering the will of the employees in
determining what union should represent them.

Technically, this appeal is premature, since the result of the ordered plebiscite among
the workers of the Caloocan shops may be adverse to the formation of a separate unit,
in which event, as stated in the appealed order, all questions raised in this case would
be rendered moot and academic. Apparently, however, the appellant Mechanical
Department Labor Uiiion takes it for granted that the plebiscite would favor separation.

Appellant contends that the application of the "Globe doctrine" is not warranted
because the workers of the Caloocan shops do not require different skills from the rest
of the workers in the Mechanical Department of the Railway Company. This question is
primarily one of facts. The Industrial Court has found that there is a basic difference, in
that those in the Caloocan shops not only have a community of interest and working
conditions but perform major repairs of railway rolling stock, using heavy equipment
and machineries found in said shops, while the others only perform minor repairs.

the workers in the Caloocan shops require special skill in the use of heavy equipment
and machinery sufficient to set them apart from the rest of the workers. In addition, the
record shows that the collective bargaining agreements negotiated by the appellant
union have been in existence for more than two (2) years; hence, such agreements
cannot constitute a bar to the determination, by proper elections, of a new bargaining
representative

GLOBE DOCTRINE - the will of the employees is one of the fundamental factors to
determine the appropriate bargaining unit

 Kapisanan ng mga Manggagawa sa Manila Railroad Co. v. Yard Crew

Union, Station Employees Union, RailRoad Engineering Dept. Union &
MR Co., 109 P. 1143 (60)

FACTS
Kapisanan, filed a petition praying that it be certified as the exclusive bargaining agent
in the Manila Railroad Company,

A decision, affirmed by the Court en banc, in which the respondent Court found three
unions appropriate for purposes of collective bargaining, to wit:

(1) The unit of locomotive drivers, firemen, assistant firemen and motormen—otherwise
known as the engine crew unit:

(2) the unit of conductors, assistant conductors, unit agents, assistant route agents and
train posters, otherwise known as the train crew unit, and

(3) the unit of all the rest of the company personnel, except the supervisors, temporary
employees, the members of the Auditing Department, the members of the security
guard and professional and technical employees referred to by the respondent court as
the unit of the rest of the employees.

To these 3 units, the unions were respectively certified as the exclusive bargaining
agents

After the decision had become final, All asked that they be certified in the units sought
to be separated. The respondent unions are legitimate labor organizations with
certificates of registration in the Department of Labor.

The Kapisanan and the Company opposed the separation of the said three units

the respondent Court ordered a plebiscite to be conducted among the employees in the
three proposed groups, namely: the Engineering Department, the Station Employees
and the Yard Crew Personnel.

The respondent Court also declared that the collective bargaining agreement could not
be a bar to another certification election because one of its signatories, the Kapisanan
President, was a supervisor

ISSUES

Is the order of the respondent court, granting groups of employees to choose whether or
not they desire to be separated from the certified unit to which they belong, during the
existence of a valid bargaining contract entered into by a union close to the heels of its
certification, contrary to law?

Is it legal error for the respondent court to hold that the bargaining agreement in
question does not bar certification proceedings, only because one of the signatories for
the union was adjudged by the majority of such court to be a supervisor, in a previous
case?

RULING

a practice designated as the "Globe doctrine," which sanctions the holding of a series of
elections, not for the purpose of allowing the group receiving an overall majority of
votes to represent all employees, but for the specific purpose of permitting the
employees in each of the several categories to select the group which each chooses as a
bargaining unit; that the factors which may be considered and weighed in fixing
appropriate units are:

 the history, extent and type of organization of employees;

 the history of their collective bargaining;
 the history, extent and type of organization of employees in other plants of the
same employer, or other employers in the same industry;
 the skill, wages, work and working conditions of the employees;
 the desires of the employees;
 the eligibility of the employees for membership in the union or unions involved;
and
 the relationship between the unit or units proposed and the employer's
organization, management and operation,

and the test in determining the appropriate bargaining unit is that a unit must effect a
grouping of employees who have substantial, mutual interests in wages, hours,
working conditions and other subjects of collective bargaining.

one way of determining the will or desire of the employees is what the respondent
court had suggested: a plebiscite—carried by secret ballot. A plebiscite and not the
certification election itself. A plebiscite not to be conducted by the Department of
Labor,

"the votes of the workers one way or the other, in these cases will not by any chance
choose the agent or unit which will represent them anew, for precisely that is a matter
that is within the issues raised in these petitions for certification"

the present appeals or petitions for review by certiorari, are not authorized by law and
should be dismissed

Having, however, reached the conclusion that the orders in question are not appealable
and that the respondent court has not as yet decided on whether the said collective
bargaining agreement is a bar or not to the petitions for separate units and for
certification election, which could properly be determined after the result of the
plebiscite shall have been known by the respondent court, the consideration of this
issue is premature.

1. Prior Collective Bargaining History —

 San Miguel Corp. v. Hon. Laguesma & North Luzon Magnolia Sales

Labor Union-Indep., 236 S 595 (94)

FACTS

the North Luzon Magnolia Sales Labor Union filed with the Department of Labor a
petition for certification election among all the regular sales personnel of Magnolia
Dairy Products in the North Luzon Sales Area.

Petitioner opposed the petition and questioned the appropriateness of the bargaining
unit sought to be represented by respondent union. It claimed that its bargaining
history in its sales offices, plants and warehouses is to have a separate bargaining unit
for each sales office.

petitioner being represented by Atty. Alvin C. Batalla, withdrew petitioner’s opposition

to a certification election and agreed to consider all the sales offices in northern Luzon
as one bargaining unit.

Respondent union won the election

Mediator-Arbiter certified respondent union as the sole and exclusive bargaining agent
for all the regular sales personnel in all the sales offices of Magnolia Dairy Products in
the North Luzon Sales Area.

Petitioner appealed to the Secretary of Labor. It claimed that Atty. Batalla was only
authorized to agree to the holding of certification elections subject to the following
conditions: (1) there would only be one general election; (2) in this general election, the
individual sales offices shall still comprise separate bargaining units.

public respondent, by authority of the Secretary of Labor, denied SMC’s appeal and
affirmed the Order of the Med-Arbiter.

ISSUES
whether or not respondent union represents an appropriate bargaining unit,

RULING

A bargaining unit is a “group of employees of a given employer, comprised of all or less

than all of the entire body of employees, consistent with equity to the employer,
indicate to be the best suited to serve the reciprocal rights and duties of the parties
under the collective bargaining provisions of the law.

The fundamental factors in determining the appropriate collective bargaining unit are:
(1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees’
interest, such as substantial similarity of work and duties, or similarity of compensation
and working conditions (Substantial Mutual Interests Rule); (3) prior collective
bargaining history; and (4) similarity of employment status.

Contrary to petitioner’s assertion, this Court has categorically ruled that the existence of
a prior collective bargaining history is neither decisive nor conclusive in the
determination of what constitutes an appropriate bargaining unit.

Indeed, the test of grouping is mutuality or commonality of interests.

In the case, respondent union sought to represent the sales personnel in the various
Magnolia sales offices in northern Luzon. There is similarity of employment status for
only the regular sales personnel in the north Luzon area are covered. They have the
same duties and responsibilities and substantially similar compensation and working
conditions. The commonality of interest among the sales personnel in the north Luzon
sales area cannot be gainsaid. In fact, in the certification election held, the employees
concerned accepted respondent union as their exclusive bargaining agent. Clearly, they
have expressed their desire to be one.

2. Size of Unit and Effect on Self-Organization

 See agan: San Miguel v. Hon. Laguesma, 236 S 595 (94); this page,
Syllabus

3. CBA coverage
  Farley Fulache, et. al. (plus 7 others) v. ABS-CBN Broadcasting Corp.;
GR No. 183810; Jan. 21, 2010

FACTS

Petitioners filed two separate complaints for regularization, unfair labor practice and
several money claims (regularization case) against ABS-CBN Broadcasting Corporation-
Cebu (ABS-CBN)

They were either drivers, cameraman, editors, PA/Teleprompter Operator-Editing or a

VTR man/editor.

The petitioners alleged that ABSCBN and the ABS-CBN Rank-and-File Employees
Union (Union) executed a collective bargaining agreement; they only became aware of
the CBA when they obtained copies of the agreement; they learned that they had been
excluded from its coverage as ABS-CBN considered them temporary and not regular
employees,

They claimed they had already rendered more than a year of service in the company

ABS-CBN claimed that the production of programs per se is not necessary or desirable
in its business because it could generate profits by selling airtime to block-timers or
through advertising.

ABS-CBN further claimed that to cope with fluctuating business conditions, it contracts
on a case-to-case basis the services of persons who possess the necessary talent, skills,
571 training, expertise or qualifications to meet the requirements of its programs and
productions. These contracted persons are called “talents” and are considered
independent contractors who offer their services to broadcasting companies.

Labor Arbiter Rendoque rendered his decision holding that the petitioners were regular
employees of ABS-CBN, not independent contractors, and are entitled to the benefits
and privileges of regular employees. ABS-CBN appealed the ruling to the National
Labor Relations Commission (NLRC) Fourth Division, mainly contending that the
petitioners were independent contractors, not regular employees.

the CA ruled that the petitioners failed to prove their claim to CBA benefits since they
never raised the issue in the compulsory arbitration proceedings, and did not appeal the
labor arbiter’s decision which was silent on their entitlement to CBA benefits. The CA
found that the petitioners failed to show with specificity how Section 1 (Appropriate
Bargaining Unit) and the other provisions of the CBA applied to them.

ISSUES

Whether or not the employees fall within the coverage of the bargaining unit and are
therefore entitled to CBA benefits as a matter of law and contract.

RULING

YES.

The declaration unequivocally settled the petitioners’ employment status: they are ABS-
CBN’s regular employees entitled to the benefits and privileges of regular employees.
These benefits and privileges arise from entitlements under the law (specifically, the
Labor Code and its related laws), and from their employment contract as regular
ABSCBN employees, part of which is the CBA if they fall within the coverage of this
agreement. Thus, what only needs to be resolved as an issue for purposes of
implementation of the decision is whether the petitioners fall within CBA coverage.

The parties’ 1999-2002 CBA that the scope includes the regular rank-and-file employees
of ABS-CBN. Except Supervisor and Confidential employees, casual, probationary or
contractual.

Under these terms, the petitioners are members of the appropriate bargaining unit
because they are regular rank-and-file employees and do not belong to any of the
excluded categories. Specifically, nothing in the records shows that they are supervisory
or confidential employees; neither are they casual nor probationary employees.

as regular rank-and-file employees, they fall within CBA coverage under the CBA’s
express terms and are entitled to its benefits.

To further clarify, CBA coverage is not only a question of fact, but of law and contract.
The factual issue is whether the petitioners are regular rank-and-file employees of
ABSCBN. The tribunals below uniformly answered this question in the affirmative.
From this factual finding flows legal effects touching on the terms and conditions of the
petitioners’ regular employment.

4. Effect of Prior Agreement

  General Rubber and Footwear Corp. v. Bureau of Labor Relations,
NATU, 155 S 283 (97)

FACTS

the Samahang Manggagawa sa General Rubber Corporation—ANGLO was formed by

the daily paid—rank and file employees as their union for collective bargaining, after
the expiration of the collective bargaining agreement previously executed by petitioner
with General Rubber Workers Union (Independent)

after forming their own collective bargaining unit—the National Association of Trade
Unions of Monthly Paid Employees-NATU, filed a petition for direct certification with
the Bureau of Labor Relations which petition was opposed by herein petitioner.

the Med-Arbiter issued an Order for the holding of a certification election after finding
that a certification election is in order in this case

On appeal, the Bureau of Labor Relations denied both the appeal and motion for
reconsideration interposed by petitioner and affirmed the ruling of the Med-Arbiter.

ISSUES

petitioner argues that: The order violates the thrust of the Labor Code insofar as
formation of a bargaining unit is concerned. A policy is in favor of a larger unit and not
the creation of smaller units in one establishment which might lead to formentation,
thus impractical.

RULING

From the above findings of the Bureau of Labor Relations that the members of private
respondent are not managerial employees as claimed by petitioners but merely
considered as rank-and-file employees who have every right to self-organization or to
be heard through a duly certified collective bargaining union.

Petitioner, in justification of its action, maintained that the exclusion of the members of
the private respondent from the bargaining union of the rank-and-file or from forming
their own union was agreed upon by petitioner corporation with the previous
bargaining representatives. Such posture has no leg to stand on. It has not been shown
that private respondent was privy to this agreement. And even if it were so, it can
never bind subsequent federations and unions particularly private respondent-union
because it is a curtailment of the right to self-organization guaranteed by the labor
laws.

8. Effect of Including Employees outside the bargaining unit/mixture of RAF

& Supervisory employees - Art. 256 (245-A) (RA 9481)

 Samahang Manggagawa sa Charter Chemical SUPER Zacarias Jerry

Victorio, Union Pres. V. Charter Chemical & Coating Corp., GR No.
169717; Mar. 16, 2011

FACTS

Samahang Manggagawa sa Charter Chemical Solidarity of Unions in the Philippines for

Empowerment and Reforms (petitioner union) filed a petition for certification election
among the regular rankand-file employees of Charter Chemical and Coating
Corporation (respondent company) with the Mediation Arbitration Unit of the DOLE.

respondent company filed an Answer with Motion to Dismiss on the ground that
petitioner union is not a legitimate labor organization because of (1) failure to comply
with the documentation requirements set by law, and (2) the inclusion of supervisory
employees within petitioner union.

Med-Arbiter dismissed the petition for certification election. The Med-Arbiter ruled that
petitioner union is not a legitimate labor organization because the union registration
was defective.

Further, the list of membership of petitioner union consisted of 12 batchman, mill

operator and leadman who performed supervisory functions. Under who were
supervisory employees and are prohibited from joining petitioner union which seeks to
represent the rank-and-file employees of respondent company. As a result, not being a
legitimate labor organization, petitioner union has no right to file a petition for
certification election for the purpose of collective bargaining.

DOLE allowed the conduct of certification election among the regular rank-and-file
employees of Charter Chemical and Coating Corporation. The CA reversed this ruling.

the appellate court gave credence to the findings of the Med-Arbiter that petitioner
union failed to comply with the documentation requirements under the Labor Code. It,
likewise, upheld the Med-Arbiter’s finding that petitioner union consisted of both rank-
and-file and supervisory employees.

ISSUES

RULING

the DOLE found that petitioner union complied with the documentation requirements
of the Labor Code and that the evidence was insufficient to establish that there was an
illegal mixture of supervisory and rank-andfile employees in its membership.

The mixture of rank-and-file and supervisory employees in petitioner union does not
nullify its legal personality as a legitimate labor organization. (you just need to drop
the names from the list)(not among the grounds)

petitioner union failed to present any rebuttal evidence in the proceedings below after
respondent company submitted in evidence the job descriptions of the aforesaid
employees. The job descriptions indicate that the aforesaid employees exercise
recommendatory managerial actions which are not merely routinary but require the use
of independent judgment, hence, falling within the definition of supervisory employees
under Article 212(m)30 of the Labor Code.

Nonetheless, the inclusion of the aforesaid supervisory employees in petitioner union

does not divest it of its status as a legitimate labor organization.

The applicable law and rules in the instant case are the same as those in Kawashima
because the present petition for certification election was filed in 1999 when D.O. No. 9,
series of 1997, was still in effect. As a result, petitioner union was not divested of its
status as a legitimate labor organization even if some of its members were supervisory
employees; it had the right to file the subject petition for certification election.

The right to file a petition for certification election is accorded to a labor organization
provided that it complies with the requirements of law for proper registration. The
inclusion of supervisory employees in a labor organization seeking to represent the
bargaining unit of rank-and-file employees does not divest it of its status as a
legitimate labor organization.

The legal personality of petitioner union cannot be collaterally attacked by

respondent company in the certification election proceedings.
Except when it is requested to bargain collectively, an employer is a mere bystander to
any petition for certification election; such proceeding is non-adversarial and merely
investigative, for the purpose thereof is to determine which organization will represent
the employees in their collective bargaining with the employer. not even a mere
allegation that some employees participating in a petition for certification election are
actually managerial employees will lend an employer legal personality to block the
certification election. The employer’s only right in the proceeding is to be notified or
informed thereof.

1. Difference between the concept of a Union/LLO and a Bargaining Unit

 Sta. Lucia East Commercial Corp. v. Sec. of Labor & SLECC Workers
Assoc. (CLUP), G.R. No. 162355; Aug. 14, 2009

FACTS

Confederated Labor Union of the Philippines (CLUP), in behalf of its chartered local,
instituted a petition for certification election among the regular rank-and-file employees
of Sta. Lucia East Commercial Corporation and its Affiliates

The affiliate companies included in the petition were SLE Commercial, SLE Department
Store, SLE Cinema, Robsan East Trading, Bowling Center, Planet Toys, Home Gallery
and Essentials.

Med-Arbiter Bactin ordered the dismissal of the petition due to inappropriateness of the
bargaining unit.

In the meantime, [CLUP-SLECC and its Affiliates Workers Union] reorganized itself
and re-registered as CLUP-Sta. Lucia East Commercial Corporation Workers limiting its
membership to the rank-and-file employees of Sta. Lucia East Commercial Corporation.
It was issued Certificate of Creation of a Local Chapter

[CLUP-SLECCWA] filed the instant petition. Alleging that while there is another union
registered with DOLE-Regional Office covering the same employees, namely
[SMSLEC], it has not been recognized as the exclusive bargaining agent of [SLECC’s]
employees.
SLECC filed a motion to dismiss the petition. It averred that it has voluntarily
recognized [SMSLEC] as the exclusive bargaining agent of its regular rank-and-file
employees, and that collective bargaining negotiations already commenced between
them.

a CBA between [SMSLEC] and [SLECC] was ratified by its rank-and-file employees and
registered with DOLE-Regional Office

[CLUP-SLECCWA] filed its Opposition assailing the validity of the voluntary

recognition of [SMSLEC] by [SLECC] and their consequent negotiations and execution
of a CBA.

Med-Arbiter Anastacio L. Bactin dismissed CLUP-SLECCWA’s petition for direct

certification on the ground of contract bar rule.

On appeal, the Secretary granted it and ordered the conduct of a certification election

The appellate court affirmed the ruling of the Secretary

ISSUES

SLECC asserted that the appellate court commited a reversible error when it affirmed
the Secretary’s finding that SLECC’s voluntary recognition of SMSLEC was done while
a legitimate labor organization was in existence in the bargaining unit.

RULING

Article 212(g) of the Labor Code defines a labor organization as “any union or
association of employees which exists in whole or in part for the purpose of collective
bargaining or of dealing with employers concerning terms and conditions of
employment.” Upon compliance with all the documentary requirements, the Regional
Office or Bureau shall issue in favor of the applicant labor organization a certificate
indicating that it is included in the roster of legitimate labor organizations

The concepts of a union and of a legitimate labor organization are different from, but
related to, the concept of a bargaining unit.

A Legitimate Labor Organization Representing An Inappropriate Bargaining Unit

CLUP-SLECC and its Affiliates Workers Union’s initial problem was that they
constituted a legitimate labor organization representing a non-appropriate bargaining
unit. However, CLUP-SLECC and its Affiliates Workers Union subsequently re-
registered as CLUP-SLECCWA, limiting its members to the rank-and-file of SLECC.
SLECC cannot ignore that CLUP-SLECC and its Affiliates Workers Union was a
legitimate labor organization at the time of SLECC’s voluntary recognition of SMSLEC.
SLECC and SMSLEC cannot, by themselves, decide whether CLUP-SLECC and its
Affiliates Workers Union represented an appropriate bargaining unit.

CLUP-SLECC and its Affiliates Workers Union, having been validly issued a certificate
of registration, should be considered as having acquired juridical personality which
may not be attacked collaterally.

SLECC’S Voluntary Recognition of SMSLEC

The employer may voluntarily recognize the representation status of a union in

unorganized establishments. SLECC was not an unorganized establishment when it
voluntarily recognized SMSLEC as its exclusive bargaining representative

SLECC’s voluntary recognition of SMSLEC on 20 July 2001, the subsequent negotiations

and resulting registration of a CBA executed by SLECC and SMSLEC are void and
cannot bar CLUP-SLECCWA’s present petition for certification election.

Employer’s Participation in a Petition for Certification Election

We find it strange that the employer itself, SLECC, filed a motion to oppose CLUP-
SLECCWA’s petition for certification election. In petitions for certification election, the
employer is a mere bystander and cannot oppose the petition or appeal the Med-
Arbiter’s decision.

The exception to this rule, which happens when the employer is requested to bargain
collectively, is not present in the case before us.

C. Determining Agency—232 (226), 238 (232)

- Note: BLR (now NCMB) ensures the free and fair choice of bargaining
representation by employees.

VI. UNION REPRESENTATION:

ESTABLISHING UNION MAJORITY STATUS

 A. Pre-Condition: Employer-Employee Relationship/Representation Role — 267
(255),
par. 1

238

 See: Allied Free Workers Union (PLUM) v. Cia Maritima, 19 S 258 (67)

FACTS

The right to file a petition for certification election is accorded to a labor organization
provided that it complies with the requirements of law for proper registration. The
inclusion of supervisory employees in a labor organization seeking to represent the
bargaining unit of rank-and-file employees does not divest it of its status as a legitimate
labor organization.

MARITIMA, through Teves, entered into a CONTRACT with AFWU,

During the first month of the existence of the CONTRACT, AFWU rendered satisfactory
service. So, MARITIMA, through Teves, verbally renewed the same. This harmonious
relations between MARITIMA and AFWU lasted until the former complained to the
latter of unsatisfactory and inefficient service by the laborers doing the arrastre and
stevedoring work.

As a remedy, Teves was forced to hire extra laborers from among “stand-by” workers
not affiliated to any union to help in the stevedoring and arrastre work. The wages of
these extra laborers were paid by MARITIMA through separate vouchers and not by
AFWU. Moreover, said wages were not charged to the consignees or owners of the
cargoes

Then, AFWU presented to MARITIMA a written proposal 5 for a collective bargaining

agreement.

This demand embodied certain terms and conditions of employment different from the
provisions of the CONTRACT. No reply was made by MARITIMA.

AFWU instituted proceedings in the Industrial Court praying that it be certified as the
sole and exclusive bargaining agent in the bargaining unit composed of all the laborers
doing the arrastre and stevedoring work in connection with MARITIMA’s vessels
MARITIMA answered, alleging lack of employer-employee relationship between the
parties

MARITIMA informed AFWU of the termination of the CONTRACT because of the

inefficient service rendered by the latter which had adversely affected its business.
MARITIMA then contracted with the Iligan Stevedoring Union for the arrastre and
stevedoring work. The latter agreed to perform the work subject to the same terms and
conditions of the CONTRACT.

upon the instance of AFWU, MARITIMA found itself charged before the Industrial
Court 7 of unfair labor practices. MARITIMA answered, again denying the employer-
employee relationship between the parties.

members of AFWU, together with those of the Mindanao Workers Alliance—a sister
union—formed a picket line at the wharf of Iligan City, thus preventing the Iligan
Stevedoring Union from carrying out the arrastre and stevedoring work it contracted
for.

MARITIMA filed an action to rescind the CONTRACT, enjoin AFWU members from
doing arrastre and stevedoring work in connection with its vessels, and for recovery of
damages against AFWU and its officers.

ISSUES

whether there is an employer-employee relationship between MARITIMA, on the one

hand, and AFWU and/or its members-laborers who do the actual stevedoring and
arrastre work, on the other hand.

RULING

It is true that MARITIMA admits that it did not answer AFWU’s proposal for a
collective bargaining agreement. From this it does not necessarily follow that it is guilty
of unfair labor practice. Under the law the duty to bargain collectively arises only
between the “employer” and its “employees”. Where neither party is an “employer”
nor an “employee” of the other, no such duty would exist. Needless to add, where there
is no duty to bargain collectively the refusal to bargain violates no right.

the question is: Under the CONTRACT, was MARITIMA the “employer” and AFWU
and/or its members the “employees” with respect to one another?
CIR DECISION: The court a quo held that under the CONTRACT, AFWU was an
independent contractor of MARITIMA. This conclusion was based on the following
findings of fact:

 The petitioner union operated as a labor contractor under the so-called ‘cabo’
system;
 all appointed by the general manager of the union and are paid in accordance
with the union payroll exclusively prepared by the union in the office. The
payrolls where laborers are listed and paid were prepared by the union itself
without the intervention or control of the respondent company and/or its agent
at Iligan City. The respondent never had any knowledge of the individual names
of laborers and/or workers listed in the union payroll or in their roster of
membership.
 The union engaged the services of their members in undertaking the work of
arrastre and stevedoring. The charges for such service were known by the union
and collected by them through their bill collector. Once goods are delivered to
their destination the union through its bill collectors prepare the bills of
collection and the charges thereon are collected by the union bill collectors who
are employees of the union and not of the respondent.
 In doing this work, the union employs their own trucks or other vehicles or
conveyance from shipper’s warehouse to the boat or vice-versa. The respondent
has no truck of any kind for the service of hauling cargoes because such service is
included in the contract executed between the parties.
 The union members who were hired by the union to perform arrastre and
stevedoring work on respondents’ vessels at Iligan port were being supervised
and controlled by the general foreman of the petitioner union or by any union
assistant or capataz responsible for the execution of the labor contract
 All the laborers and/or workers hired for said work are union members and are
only responsible to their immediate chief who are officers and/or employees of
the union.
 There were no instances where officers and employees of the respondent
Compañia Maritima and/or its agent had interferred in the giving of instructions
to the laborers performing the arrastre and/or stevedoring work either aboard
vessels or at the wharf of Iligan City. As contractor, the union does not receive
instructions as to what to do, how to do, and works without specific instructions.
They have no fixed hours of work required by the Maritima.
 Other disciplinary measures imposed on laborers performing the said work were
exercised by the general foreman of the union who has blanket authority from
the union general manager to exercise disciplinary control over their members
who were assigned to perform the work in a group of laborers assigned by the
 union to perform loading or unloading cargoes when a Compañia Maritima boat
docked at Iligan City. The respondents have not at any time interferred in the
imposition of disciplinary action upon the laborers who are members of the
union. In one instance, under this situation, the president of the union himself
dismissed one inefficient laborer found to have been performing inefficient
service at the time
 Respondent cannot, therefore, discipline and/ or dismiss these erring workers of
the union.

And in absolving MARITIMA of the unfair labor charge

 The Court finds no interference in the union activities, if any, of the members of
the Allied Free Workers Union as these persons engaged in the stevedoring and
arrastre service were employed by the Allied Free Workers Union as
independent contractor subject to the terms and conditions of their then’ existing
labor contract
 “Further, the Court finds that the petitioner, aside from its labor contract (See
Exhibit ‘A') with the respondent Compañia Maritima also has other labor
contracts with other shipping firms on the stevedoring and arrastre work; and
that this contract obligated the petitioner as an independent labor contractor to
undertake the arrastre and stevedoring service on Compañia Maritima boats
docking at Iligan City Port.
 The clear implication of the decision of the Supreme Court is that if the
defendant has no power of control—which, according to the Supreme Court, is
the ‘most important element’—there is no employer-employee relationship

AFWU was an independent contractor. And an independent contractor is not an

“employee".

it is AFWU itself who is the “employer” of those laborers.

there is no legal impediment for a union to be an “employer".

however, AFWU appears to be more of a distinct and completely autonomous business

group or association. Its organizational structure and operational system is no different
from other commercial entities on the same line. It even has its own bill collectors and
trucking facilities. And that it really is engaged in business is shown by the fact that it
had arrastre and stevedoring contracts with other shipping firms in Iligan City.
There is no question that certification election could not have been proper during the
existence of the CONTRACT in view of the court a quo’s finding that there was no
employment relationship thereunder between the parties.

AFTER THE RESCISSION OF CONTRACT

From the finding that after the rescission of the CONTRACT, MARITIMA continued to
avail of the services of AFWU, however, the Court held that there still no employer-
employee relationship between the parties.

It is because after the rescission, the AFWU laborers continued working in accordance”
with’ the “cabo” system, which was the prevailing custom in the place.

Under the “Cabo” system, the union was an independent contractor. This is shown by
the court a quo’s own finding that prior to the CONTRACT between MARITIMA and
AFWU, the former had an oral arrastre and stevedoring agreement with another union
which was also based on the cabo system.

insofar as the working arrangement was concerned, there was no real difference
between the CONTRACT and the prior oral agreement. Both were based on the “cabo”
system. Under both, (1) the union was an independent contractor which engaged the
services of its members as laborers; (2) the charges against the consignees and owners of
cargoes were made directly by the union; and (3) the laborers were paid on union
payrolls and MARITIMA had nothing to do with the preparation of the same. These are
the principal characteristics of the “cabo” system on which the parties based their
relationship after the termination of the CONTRACT.

Hence, since the parties observed the “cabo” system after the rescission of the
CONTRACT, and since the characteristics of said system show that the contracting
union was an independent contractor, it is reasonable to assume that AFWU continued
being an independent contractor of MARITIMA. And, being an independent contractor,
it could not qualify as an “employee”.

Moreover, there is no evidence at all regarding the characteristics of the working

arrangement between AFWU and MARITIMA after the termination of the CONTRACT.

the duty to bargain collectively exists only between the “employer” and its
“employees”. There being no employeremployee relationship between the parties
disputants, there is neither a “duty to bargain collectively” to speak of. And there being
no such duty, to hold certification elections would be pointless.
1. Individual Employees/Group of Employees grievances to Employer - Right to present
grievances to Employer — 267 (255), par. 1

 Juanito Tabigue plus 19 others v. International Copra Export Corp. GR No.

183335; Dec. 23, 2009

FACTS

Petitioner Juanito Tabigue and his 19 co-petitioners, all employees of respondent

International Copra Export Corporation (INTERCO), filed a Notice of Preventive
Mediation with the (NCMB), against respondent, for violation of Collective Bargaining
Agreement (CBA) and failure to sit on the grievance conference/meeting.

As the parties failed to reach a settlement before the NCMB, petitioners requested to
elevate the case to voluntary arbitration

Before the parties could finally meet, respondent presented before the NCMB a letter of
Tan, the president of the INTERCO Employees/Laborers’ Union (the union) of which
petitioners are members, addressed to respondent’s plant manager (Tangente), stating
that petitioners “are not duly authorized by [the] board or the officers to represent the
union, [hence] . . . all actions, representations or agreements made by these people with
the management will not be honored or recognized by the union.” Respondent thus
moved to dismiss petitioners’ complaint for lack of jurisdiction.

Petitioners soon sent union president Tan and respondent’s plant manager Tangente a
Notice to Arbitrate, citing the “Revised Guidelines” in the Conduct of Voluntary
Arbitration Procedure

The parties having failed to arrive at a settlement, NCMB Director wrote petitioner Alex
Bibat and respondent’s plant manager Tangente of the lack of willingness of both
parties to submit to voluntary arbitration, which willingness is a pre-requisite to submit
the case thereto; and that under the CBA forged by the parties, the union is an
indispensable party to a voluntary arbitration but that since Tan informed respondent
that the union had not authorized petitioners to represent it, it would be absurd to bring
the case to voluntary arbitration.

The NCMB Director thus concluded that “the demand of [petitioners] to submit the
issues . . . to voluntary arbitration CAN NOT BE GRANTED.”
Petitioners thus assailed the NCMB Director’s decision via Petition for Review before
the Court of Appeals9 which dismissed it by Resolution

ISSUES

RULING

Respecting petitioners’ thesis that unsettled grievances should be referred to voluntary

arbitration as called for in the CBA, the same does not lie.

The pertinent portion of the CBA reads: If the dispute or grievance cannot be settled by
the Committee, or if the committee failed to act on the matter within the period of
fifteen (15) days herein stipulated, the UNION and the COMPANY agree to submit the
issue to Voluntary Arbitration.

Petitioners have not, however, been duly authorized to represent the union.

in Atlas Farms, Inc. v. National Labor Relations Commission,26 viz.:

“x x x Pursuant to Article 260 of the Labor Code, the parties to a CBA shall name or
designate their respective representatives to the grievance machinery and if the
grievance is unsettled in that level, it shall automatically be referred to the voluntary
arbitrators designated in advance by parties to a CBA. Consequently only disputes
involving the union and the company shall be referred to the grievance machinery or
voluntary arbitrators.”

petitioners invoke the first paragraph of Article 255 of the Labor Code which states:

“Art. 255. The labor organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit shall be the exclusive
representative of the employees in such unit for the purpose of collective bargaining.
However, an individual employee or group of employees shall have the right at any
time to present grievances to their employer.

To petitioners, the immediately quoted provision “is meant to be an exception to the

exclusiveness of the representative role of the labor organization/union.” NO.

The right of any employee or group of employees to, at any time, present grievances to
the employer does not imply the right to submit the same to voluntary arbitration.
 2. Labor-Management Council/Purpose — 267 (255), par. 2

 See: Cirtek Employees Labor Union - FFW v. Cirtek Electronics, Inc., GR

No. 190515; June 6, 2010 (Note: Read page 661 only)

FACTS

ISSUES

RULING

As found by the Secretary of Labor, the MOA came about as a result of the constitution,
at respondent’s behest, of the Labor-Management Council (LMC) which, he reminded
the parties, should not be used as an avenue for bargaining but for the purpose of
affording workers to participate in policy and decision-making. Hence, the agreements
embodied in the MOA were not the proper subject of the LMC deliberation or
procedure but of CBA negotiations and, therefore, deserving little weight.

The appellate court, held, however, that the Secretary did not have the authority to give
an arbitral award higher than what was stated in the MOA. The conflicting views drew
the Court to re-evaluate the facts as borne by the records, an exception to the rule that
only questions of law may be dealt with in an appeal by certiorari under Rule 45.

As discussed in the Decision under reconsideration, the then Acting Secretary of Labor
Manuel G. Imson acted well within his jurisdiction in ruling that the wage increases to
be given are P10 per day effective January 1, 2004 and P15 per day effective January 1,
2005, pursuant to his power to assume jurisdiction under Art. 263 (g) of the Labor Code.

(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike
or lockout in an industry indispensable to the national interest, the Secretary of Labor
and Employment may assume jurisdiction over the dispute and decide it or certify the
same to the Commission for compulsory arbitration. Such assumption or certification
shall have the effect of automatically enjoining the intended or impending strike or
lockout as specified in the assumption or certification order. If one has already taken
place at the time of assumption or certification, all striking or locked out employees
shall immediately return-to-work and the employer shall immediately resume
operations and readmit all workers under the same terms and conditions prevailing
before the strike or lockout. The Secretary of Labor and Employment or the
Commission may seek the assistance of law enforcement agencies to ensure compliance
with this provision as well as with such orders as he may issue to enforce the same.

B. Methods of Establishing Majority Status

1. Policy/Rationale-251(b) (242); 267 (255); Omnibus Rules, Book V, Rule VI, Sec.
1; Art. 218 (211) A(b); Const., Art. XIII, Sec. 3

 Samahang Manggagawa sa PERMEX (SMP-PIILU-TUCP) v. Sec. of Labor,

NFL Permex Producer & Exporter Corp., G.R. No. 107792, March 2, 1998

FACTS

a certification election was conducted among employees of respondent Permex

Producer and Exporter Corporation. No Union won.

However, some employees of Permex Producer formed a labor organization known as

the Samahang Manggagawa sa Permex (SMP) which they registered with the
Department of Labor and Employment

The Union later affiliated with the Philippine Integrated Industries Labor Union
(PIILU).

(SMP-PIILU), wrote the respondent company requesting recognition as the sole and
exclusive bargaining representative of employees at the Permex Producer. Permex
Producer recognized SMP-PIILU and entered into a CBA with it. The CBA was ratified
by the majority of the rank and file employees of Permex Producer and was certified by
DOLE.

respondent NFL filed a petition for certification election, but it was dismissed by
MedArbiter. Respondent NFL then appealed the order to the Secretary of Labor and
Employment who set aside the order of the Med-Arbiter and ordered a certification
election to be conducted

ISSUES
RULING

ARGUE: First, it is contended that petitioner has been recognized by the majority of the
employees at Permex Producer as their sole collective bargaining agent. Petitioner
argues that when a group of employees constituting themselves into an organization
and claiming to represent a majority of the work force requests the employer to bargain
collectively, the employer may do one of two things. First, if the employer is satisfied
with the employees’ claim the employer may voluntarily recognize the union by merely
bargaining collectively with it. The formal written confirmation is ordinarily stated in
the collective bargaining agreement. Second, if on the other hand, the employer refuses
to recognize the union voluntarily, it may petition the Bureau of Labor Relations to
conduct a certification election. If the employer does not submit a petition for
certification election, the union claiming to represent the employees may submit the
petition so that it may be directly certified as the employees’ representative or a
certification election may be held.

In accordance with Ilaw at Buklod ng Manggagawa v. FerrerCalleja, Permex Producer

should not have given its voluntary recognition to SMP-PIILU-TUCP when the latter
asked for recognition as exclusive collective bargaining agent of the employees of the
company. The company did not have the power to declare the union the exclusive
representative of the workers for the purpose of collective bargaining.

it is not enough that a union has the support of the majority of the employees. It is
equally important that everyone in the bargaining unit be given the opportunity to
express himself.

in this case, the recognition given to the union came barely ten (10) months after the
employees had voted “no union” in the certification election conducted in the
company.

, there can be no determination of a bargaining representative within a year of the

proclamation of the results of the certification election. The results, which showed that
61% of the employees voted for “no union,” were certified only on February 25, 1991
but on December 1, 1991 Permex Producer already recognized the union and entered
into a CBA with it.

ARGUE: Second. Petitioner invokes the contract-bar rule. They contend that under Arts.
253, 253-A and 256 of the Labor Code and Book V, Rule 5, §3 of its Implementing Rules
and Regulations, a petition for certification election or motion for intervention may be
entertained only within 60 days prior to the date of expiration of an existing collective
bargaining agreement.

The purpose of the rule is to ensure stability in the relationships of the workers and the
management by preventing frequent modifications of any collective bargaining
agreement earlier entered into by them in good faith and for the stipulated original
period. Excepted from the contract-bar rule are certain types of contracts which do not
foster industrial stability, such as contracts where the identity of the representative is in
doubt. Any stability derived from such contracts must be subordinated to the
employees’ freedom of choice because it does not establish the kind of industrial peace
contemplated by the law. 6 Such situation obtains in this case. The petitioner entered
into a CBA with Permex Producer when its status as exclusive bargaining agent of the
employees had not been established yet.

 See again: Alexander Reyes & 140 others v. Hon. Trajano & Tri - Union
Employees Union, 209 S 484 (92); p. 3, Syllabus

The vote should have been included because the right to join has the right not to join.

2. Request for Sole and Exclusive Bargaining Agent (SEBA) Certification

(Formerly referred to as “Voluntary Recognition”) - 251 (242) (C): see: OId Def.
of “Voluntary Recognition", Book V, Rule I, Sec. 1 (bbb); Rule VI, Sec. 2; Rule
VII, as amended by D.O. No. 40-I-15.

a. Requisites of request for SEBA certification Book V, Rule VIl, Sec. 2, as

amended by D.O. 40-I-15

b. Validation proceedings

1) Requisites of SEBA cert. in unorganized estb. with only one legit.

labor org.- Rule VIl, Sec. 4/Action of the Reg. Div.-Rule VIl, Sec. 4.1

2) Req. for SEBA cert. in unorganized estb. with more than one legit.
 labor org. - Rule VIl, Sec. 5

3) Req. for SEBA cert. in organized estb. - Rule VII, Sec. 6

c. Effect of SEBA Certification, Book V, Rule VIl, Sec. 4.2, as amended by D.O.
40-I-15

 See again: Sta. Lucia East Commercial Corp. v. Secretary of Labor, GR No.
162355; Aug. 14, 2009; p. 13, Syllabus

3. Elections

a. Certification election - Art. 268 (256); Book V, Rules I, Sec. 1 (h) (II); VIII, IX, X;
D.O. No. 40-1-15 added sec. 1, Rule IX. "Employer as Bystander".

b. Consent election - Book V, Rules I, Sec. 1 (h); VIII, Secs. 10, 11, 23
Effect - Book V, Rule VIII, Sec. 24
c. Run-off election - Art. 268 (256), par. 1, penultimate sentence;
Book V, Rules 1, Sec. 1 (ss); X.
d. Re-run election - DOLE D.O. No. 40-03 amended by D.O. No. 40- I-15 & introd.
a new section - Sec. 18, Rule IX

4. Venue of Petition: Reg. Office which issued the Certificate of Reg. - Book V, Rule VIll,
Sec. 2; VII, Sec. 1, as amended by D.O. 40-I-15

C. Certification Election—Process: Book V, Rules VIll (as amended by DO 40-F-03,

Nov. 23, 2008) D.O. 40-I-15 (Sept, 7, 2015), IX, X

1. The Union as Initiating Party—251(b) (242); Book V, Rule VIIl, Sec. 1, amended by
D.O. 40-F-03/further amended by D.O. 40-I-15.

a. Organized Establishment—268 (256); 272 (259); 238 (232). See: RA 9841;

May 25, 2007; Book V, Rule l, Sec. 1(II)

1) When to File - Book V. Rule VIII. Sec. 3 (see: the new Rule VlI as introduced by
D.O. 40-I-15 re. SEBA certification in lieu of Voluntary Recognition)
 i) Petition Before Freedom Period—264 (253), 268 (256); Bk. V, Rule VIII, Sec. 3
(d); Sec. 13, par. 1, as amended by D.O. 40-F-03

 Atlantic Gulf and Pacific Co. Manila Inc. v. Hon. Laguesma, Lakas-NFL, 212
S 281 (92)

Existence of a duly registered CBA barrs a certification election except within freedom
period(60 days prior to expiration of CBA).

ii) Petition Beyond Freedom Period

 National Congress of Union in Sugar Industry NACUSIP-TUCP v. Hon.

Ferrer-Calleja & NFSW-FGT-KMU, 205 S 478 (92)

NACUSIP filed one year after the original CBA expired.

They belatedly filed

2) Filing Party-Bk. V, Rule VIIl, Sec. 1, as amended by D.O. 40-F-03/further

amended by D.O. 40-I-15 Misrepresentation by Union officers

 DHL Phil. Corp. United RAF Association - FFW v. Buklod ng Mggwa, GR

152094; July 22, 2004
Certification election may be set aside grounds: misstatements made during the campaign
A material fact has been misrepresented
Opportunity to reply has been lacking
If it came from an authoritative person will have an impact on their free choice.

3) Form of Petition—Bk. V, Rule VIll, Sec. 4, as amended by D.O. 40-F-03

 National Mines and Allied Workers Union (NAMAWU-MIF) v. Sec. of Labor,

FFW-SMQCC & Quality Container Corp., 227 S 821 (92)
Verification of the pleading( a formal and not jrequirement. May order the curing. Technical
procedures are not binding in labor proceedings). CE should be held
The petition was not verified by law. Filed a second petition

4) Substantial Support/Simultaneous Submission (directory).- Art. 268 (256); Bk. V,

Rule VIlI, Sec. 4(g), as amended by D.O. 40-F-03, Sec. 14(e), now Sec. 14 (f) as
amended by D.O. 40-F-03; 1997 Impl. Rules - Rule XI, Sec. 11, II (e)

 Oriental Tin Can Labor Union v. Sec. of Labor, &OTCWU-FFW & Oriental
Tin Can & Metalsheet, 294 S 640 (98)
The 25% Support requirement was met. The support requirement is a mere technicality
which should be employed in determining the true will of the workers instead of
frustrating the same.
Once met, withdrawal of others after filing the petition will not affect the petition

 See: Port Workers Union (PWUP) etc. v. DOLE & International Container,
207 S 329 (92)

5) Effect of Members' Retraction on Petition

 Eagle Ridge Golf & Country Club v. CA & EREU, GR No. 178989;
Mar. 18, 2010
Withdrawal of the 6 members does not affect the petition of certification election does not
affect union registration
Before – presumed voluntary
After – presumed involuntary

6) Forced Intervention/Motion for Intervention—Book V, Rule VIll, Secs. 7 &

8/renumbered as Secs. 8 & 9 with the insertion of a new Sec. 7 re. Posting by
D.O. 40-I-15

 Phil. Assn. of Free Labor Union v. Hon. Calleja, KMPMSM sa Hundred Is.
Chem. Corp., 169 S 491 (89)
The requirement of Written consent of at least 20% is not for motion for intervention but for
petition for CE

b. Unorganized Establishment—251(a) (242), 269 (257); 270 (258); See RA 9481;

May 25, 2007; Book V, Rule l, Sec. 1 (II)

2. The Employer as Initiating Party/Bystander Rule—270 (258); 271 (258-A),

XPN: when he is obliged to file a petition for CE upon the request of

employees. After filing, he will become a by-stander again.

See: RA 9481; May 25, 2007; Book V, Rule VIll, Sec. 1, par. 2/now par. 3 with the new
par. 2 as inserted/amended by D.O. 40-F-03

 Hercules Industries, Inc. v. Secretary of Labor & NFL, 214 S 129(92)

  Phil. Scouts Veterans Security v. Hon. Torres & PGA Brotherhood Assoc, - UFW,
224 S 682 (93)

3. Grounds for the Denial of the Petition - Rule VIll, Sec. 14, as amended by D.O. 40-F-03
which introduced 3 new grounds - Sec. 14 (b) (g) (h) MEMORIZE: 8 grounds

4. Prohibited grounds for Denial - Rule VIll, Sec. 15, new provision introduced by D.O.
40-F-03; Art. 256 (245-A); RA No. 9481

Employees shall be automatically deemed removed from the list of membership

5. Ancillary Issues - Rule VIII, Sec. 16, that is, formerly Sec. 15 which was
renumbered/amended by D.O. 40-F-03

6. Responsible Agency — 232 (226), 238 (232), 268 (256), 269 (257), 270 (258), 272
(259); Book V, Rule VIII, Secs. 13, 14 & 15, the 3 sections as amended by D.O. 40-F-03
Note: Art. 226 (now 232) was superceded by EO 251 (Jan. 30, 1987) which created
the NCMB, absorbing the conciliation and mediation functions of the BLR; also,
amended by RA 6715 (Mar. 21, 1989)

 Hijo Resources Corp. v. Epifanio Mejares plus 3 others, GR No. 208986;

Jan. 13, 2016
MA has the authority to determine EE-ER relationship. If a party contests, it is only
appealable to the SOLE.

The decision of MA does not foreclose chuchu HAHAHAHA