2. Certification Election

Pending Petition for Cancellation of Union Registration

Pendency of a petition for cancellation of union registration does NOT preclude collective bargaining. It shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election (Sec. 3, Rule XI of D.O. 40-03).

Employees of International Organizations

International organizations are endowed with some degree of international legal personality. They are granted jurisdictional immunity, as provided in their organization’s constitutions, to safeguard them from the disruption of their functions.

Immunity […] is granted to avoid interference by the host country in their internal workings. The determination [by the executive branch] has been held to be a political question conclusive upon the Courts in order not to embarrass a political department of Government [Hence], a certification election cannot be conducted in an international organization to which the Philippine Government has granted immunity from local jurisdiction [International Catholic Migration Commission v. Calleja, G.R. No. 85750 (1990)].

Effect of Pendency of ULP Case

While generally, the pendency of ULP case filed against a labor organization participating in the certification election does not stay the holding thereof (Barrera v. CIR, G.R. No. L-32853, 1981).

Prejudicial Question that Bars Holding of Certificate Election

However, the pendency of a formal charge of company domination against one of the unions which is participating in the certification election is a prejudicial question that bars the holding thereof until its final resolution. (Standard Cigarette v. CIR, G.R. No. L-9908, 1957).

Where to File

Regional Office which issued the legitimate labor organization’s certificate of registration or certificate of creation of chartered local.

Requirements for Request of SEBA Certification: The request shall indicate:

• The name and address of the requesting legitimate labor organization
• The name and address of the company where it operates
• The bargaining unit sought to be represented
• The approximate number of employees in the bargaining unit; and
• The statement of the existence/nonexistence of other labor organization/CBA
• List of employees who support the certification, numbering at least majority of the CBU.

The certificate of registration or certification of creation as duly certified by the president of the requesting union or of the federation of the local, respectively, shall be attached to the request.

Action on the Request

Within 1 day from the submission of the request, the Regional Director shall:

• Determine whether the request is compliant with the rules and whether the bargaining unit sought to be represented is organized or not
• Request a copy of the payroll for purposes of SEBA certification

If he/she finds it deficient, the Regional Director shall advise the requesting union or local to comply within 10 days from notice. Failure to comply is deemed a withdrawal of the request.

Request for Certification In Organized Establishment

If the RD finds the establishment organized, he/she shall refer the same to the Mediator-Arbiter for the determination of the propriety of conducting a certification election.

CERTIFICATION ELECTION

Process of determining through secret ballot the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiations. Conducted by an Election Officer under DOLE rules; the Med-Arbiter hears and decides the petition for certification election. (IRR Labor Code, Sec. 1[x], Rule I, Book V)

Purpose

The ascertainment of the wishes of the majority of the employees in the appropriate bargaining unit: to be or not to be represented by a labor organization, and in the affirmative case, by which particular labor organization. (Reyes v. Trajano, G.R. No. 84433, 1992)

Whenever there is doubt as to whether a particular union represents the majority of the rank-and-file employees, in the absence of a legal impediment, the holding of a certification election is the most democratic method of determining the employees’ choice of their bargaining representative. It is the appropriate means whereby controversies and disputes on representation may be laid to rest, by the unequivocal vote of the employees themselves. (Philippine Airlines Employees’ Association (PALEA) v. Ferrer-Calleja, G.R. No. 76673, 1988)

Issues Involved in a Certification Election

• Proper composition and constituency of the bargaining unit; and
• Veracity of membership claims of the competing unions so as to identify the union that will serve as the bargaining representative of the entire bargaining unit

Note: The questions to be resolved in a Certification Election:

• Whether the employees want to be represented
• By whom should they be represented

Pending Petition for Cancellation of Registration is not a Bar for a Certification Election

An order to hold a certification election is proper despite the pendency of the petition for cancellation of the registration certificate of the respondent union because at that time the union filed its petition, it still had the legal personality to perform such act absent an order directing the cancellation (Legend International Resorts Limited v. Kilusang Manggagawa ng Legenda, G.R. 169754, 2006).

Note: The process in certification elections depends upon whether the establishment is organized or unorganized. The general flow remains the same, but there are some differences, as will be discussed below.

Who May File

Any legitimate labor organization including

• A national union or federation which has already issued a charter certificate to its local/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. (Labor Code, Art. 269)
• An employer may file a Petition for Certification Election when:
• Requested to bargain collectively; and
• No bargaining agent nor a registered CBA exists in the unit. (Labor Code, Art. 270)

Requisites for holding a certification election in an unorganized establishment (Labor Code, Art. 269)

Once a petition is filed by a legitimate labor organization, the Med-Arbiter shall automatically order the conduct of a certification election.

When to File

Any time, except within 12 months of a previous election (if any).

Requisites for holding a certification election in an organized establishment (Labor Code, Art. 268):

• The Med-Arbiter shall automatically order an election by secret ballot when
• Verified petition supported by at least 25% of all the employees in the bargaining unit, questioning the majority status of the incumbent bargaining agent.
• Filed before the DOLE within the 60-day period before the expiration of the five year representation aspect of the CBA

Note: The requisite written consent of at least 20% (now 25%) of the workers in the bargaining unit applies to certification election only, and not to motions for intervention. (PAFLU v. Calleja, G.R. No. 79347, 1989)

Comparison of Organized v. Unorganized establishments

REQUIREMENTS FOR VALID CERTIFICATION ELECTION

• The union should be legitimate which means that it is duly registered and listed in the registry of legitimate labor unions of the BLR or that its legal personality has not been revoked or cancelled with finality.
• In case of organized establishments, the petition for certification election is filed during (and not before or after) the 60-day freedom period of a duly registered CBA.
• In case of organized establishments, the petition is supported by the written consent of at least 25% of all employees in the bargaining unit, including employees who are not members of the incumbent union.
• The petition is filed not in violation of any of the three (3) bar rules.

Where to file the Petition for Certification Election (PCE)

With the Regional Office which issued the petitioning union’s certificate of registration or certificate of creation of chartered local.

• Where two/more petitions involving the same bargaining unit are filed in one Regional Office, the same shall be automatically consolidated with the Med-Arbiter who first acquires jurisdiction.
• Where the petitions are filed in different Regional Offices, the Regional office in which the petition was first filed shall exclude all others; in which case, the latter shall endorse the petition to the former for consolidation.
• At the option of the petitioner, a PCE and its supporting document may also be filed ONLINE. (DO No. 40-I-15)

The Regional Director or his/her authorized personnel shall be responsible for the posting of the Notice of Petition for Certification Election.

RULES PROHIBITING THE FILING OF PCE/BARS TO CERTIFICATION ELECTION

Genuine Deadlock

• The submission of the deadlock to a 3rd party conciliator or arbitrator; or
• The deadlock is the subject of a valid notice of strike or lockout (National Congress of Unions in the Sugar Industry v. Trajano, G.R. No. 67485, 1992)

Petition for certification election cannot be entertained if:

• A duly certified union has commenced and sustained negotiations with the employer in accordance with Art. 261 within the one-year period referred to in Section 14(a), Rule VIII of D.O. No. 40-03.
• Before the filing of the petition for certification election, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout.

Requisites:

• Parties must have negotiated in good faith
• Deadlock must have been submitted to voluntary conciliation or arbitration or is subject of a valid notice of strike / lock-out.

ONE-YEAR BAR RULE OR CERTIFICATION YEAR BAR RULE

No petition for a certification election may be filed within 1 year from the date of a valid certification, consent, or run-off election.

Certification year rule will apply even if the “No union” choice won. Therefore, for one year, no PCE will be entertained (Samahang Manggagawa sa Permex v. Secretary, G.R. No. 107792, 1998)

Note: The 12-month prohibition presupposes that there was an actual conduct of election, i.e. ballots were cast and there was a counting of votes. In a case where there was no certification election conducted precisely because the first petition was dismissed on the ground that it did not include all the employees who should be properly included in the collective bargaining unit, the certification year bar does not apply. (R Transport Corp. v. Laguesma, G.R. No. 106830, 1993)

Date of election

Date to be considered is when the election was conducted; if results are appealed, then the date when appeal is finally resolved.

Where less than majority of CBU voted

There is a failure of election when less than majority of the CBU members voted. A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election. It may be filed within 6 months from date of declaration of the failure of election. (D.O. No. 40-03, Sec. 18, Rule IX)

Note: The last sentence pertains to the re-run election as provided under D.O. No. 40-I-15.

When Certification Year Bar Rule will NOT APPLY

• In a case where there was no certification election conducted precisely because the first petition was dismissed on the ground that it did not include all the employees who should be properly included in the collective bargaining unit. (R Transport Corp. v. Laguesma, G.R. No. 106830, 1993)
• A failure of election where less than majority of the CBU members voted. A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election may be filed within 6 months from date of declaration of the failure of election. (D.O. No. 40-03, Sec. 18, Rule IX)