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8/12/2019 Transcription LABREL

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September 4 2013 Labor Rev

These are the kinds of elections in theThese are found in

the labor code, this is found in the jurisprudence. Theres

one more, petition for de-certification election. Thats

found in LVN vs Philippine Musicians Guild 1 Scra (i

dont know the page) 1961. Petition for certificationelection can be filed either by a legitimate labor

organization or an employer when requested to bargain

collectively. Remember, when out of the blue, there is a

union that goes to the employer and says, here are our

bargaining proposals, let us now sit down and bargain

because we are the exclusive bargaining agent of the

bargaining unit. Now, the employer can now have under

the labor code and the rules that implement the labor code,

they can say, okay, lets sit down and bargain. And then

they can jointly submit a statement of voluntary

recognition under oath thats in the implementing rules,

the new implementing rules. And then the Department

BLR will put a stamp of approval by directly certifying the

union as the exclusive bargaining agent. Theres a problem

with that and that is the latest case of Sta. Lucia East

Commercial Corporation vs. Honorable Secretary 596

SCRA 92 August 14, 2009 case. Heres a union that files

a petition for the workers including supervisors, rank-and-

file and naay duha ka lugas na managers na naapil.

Dismissed by the Med Arbiter without prejudice to refiling

because you cannot have all these people in the same

bargaining unit. Dismissed. After they dismissed it, they

are applying for registration of a new union. Wala na tuy

labot tung uban. While the petition, their application to be

registered was pending, here comes management with

another union entering a collective bargaining agreement

and presenting it to dept of labor for registration/voluntary

recognition. The Supreme Court says, there can be no

voluntary recognition in an organized establishment.

Organized, wa pa man na union. When there is petition

pending for registration it seems the understanding of the

SC is that it is an organized establishment.

Thats the ruling in this case. So to add here, voluntary

recognition/direct certification. It is the process other than

certification election by which a union becomes an

exclusive bargaining agent. Before, there was no need toapply or management to know and recognize a union

They enter into a CBA. The CBA is registered. Then the

CBA now bars any petition for certification election. The

recognition by management is just antecedent to the

registration of a CBA. If the CBA is registered, you pay

the fee, it now bars any certification election. But then in

the Samahan case, 10 years ago, the SC held that ruling

there was a certification election. The NFL union was the

only one running against no union. No union won. After

no union won, the NFL waited for 1 year because of the

certification year rule. At the end of 1 year, on the first day

after the anniversary of the election, NFL filed for another

petition for certification election because NFL was just los

by a handful of votes. When they filed this petition after 1

year, management moved to dismiss. Why? Barred by a

registered certified collective bargaining agreement. They

had in the meantime recognized another union and they

entered into a CBA, and they registered it. Is that valid?

Supreme Court says, no that is not valid. In that ruling the

SC said, there is need for a certification election. This

recognition is impossible according to the SC. Why? Less

than a year ago, this bargaining unit rejected the notion of

representation in a certification election. Thats a free

decision because it is by secret ballot. Why all of a sudden

they chose an exclusive bargaining representative. That is

only the machination of the management. Inimbento to

Company union to. That is what the supreme court said

Now, here we are, this Sta Lucia case. They filed a

certification of election, wa gani maka.hold of certification

election. kay ngano man? the bargaining unit was wrong

so they re-registered a union. This time without the


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supervisors. While they are applying for registration,

management recognizes another union, they go to the

Department of Labor. The Department of Labor directly

certifies. Supreme Court says, you cannot go through

voluntary recognition if it is an organized establishment.

Ngano organized man? kay naa namay union. Nasayop

lang to sila pag file. My point to your attention the

definition in the rules to implement the labor code, the

definition of certification election/consent election, pareho

na. In fact the definition says with or without, ah. Thats

found in Book 5 Rule 1 section 1 letter H. Certification

eletion or consent election. It says, refers to the process of

determining through secret ballot the sole and exclusive

representative of the employees in an appropriate

bargaining unit for purposes of collective bargaining or

negotiation. The certification election is ordered by the

Department while the consent election is voluntarily

agreed upon by the parties with or without the intervention

of the department. I told you how self defeating this

definition is. Does not make sense. Why? If consent

election is the same as certification election there must be

a certain certification. If there is a certification, it involves

a third party who will certify it. Then it says, there is not

even a need for the department to intervene. kinsa man

mo-certify, na nagkasabot man mong duha. Mahimo ba na

magminyo, kamo ra duha. ha? wa man. Whoever wrote

this implementing rule must not be a lawyer. Its like a

stupid as audited financial statement pero walay auditor.

ikaw ray nagpahigawas sa imung statement under your

oath na kani maoy tinuod which is a gratuitous assertion.

somebody has to say, kana iyang gisulti correct na, tinuod

na. But that this is the union declared the exclusive

bargaining agent thats correct because I was there. I

supervised the election and the election was carried out in

accordance with the rules. Therefore, proclaimed. dba?

mao manay trabaho sa COMELEC. makabuhat ba diay ta

ug election na walay comelec? Kinsa may mu-proclaim sa

winner? wa nay kinahanglan ug botuhanan, rakrakan

nalang nimo tanan. :D Thats the whole idea of the

certification. Now. remember, a certification election

number 1 condition for its validity is that at least a

majority of the eligible voters of the bargaining unit must

participate. Then it is a valid election. kinsa may

makadaog? the one who gets a majority of the valid votes

cast. Usa ka.gatos kabuok, naa sa sulod sa bargaining unit

pila may kinahanglan aron ma.valid ang election? 50+1

thats majority, is it not? 50%+1 is majority. 50%+1 cast

their ballot, they participate. What happens if 20 of the

ballots cast are invalid? kinsa man ilang gi-botohan didto?

si Duterte. :D ang imung mga gipangbutang ana, sayop

imung mga boto. di, only 40 ballots will be considered. Is

that still a valid election? Yes. Because majority (50+1)

participated. The valid votes are only 40. kinsa may

makadaog anang electiona? kanang makakuha ug 21

nianang 40. mao nay daog. Is that a majority of the

bargaining unit? No! That is the crazy thing about election

here. Election is only plurality, its not majority. majority

ba diay makapa.elect nimo? dili. dili majority. Ug ang

kalaban makumbinsi nimo ayaw mo ug boto, ayaw ninyo

palabii, pildi nako ayaw nalang mo ug boto. ug dili sila

muboto, oh di daog ka, bisag 20 ra to kabuok niboto. :D

Now. if majority of the eligible voters do not participate

and there is an election, what is the result? Failed election

Failed. you have to have another election. This time, make

sure that majority of the eligible voters participate. So, to

the question: Is a second certification election always a

run-off election? the answer is no. if the first election was

failed because not the majority of the eligible voters

participated then you will have to schedule anothe

election. Even that you need a third party to certify that

kinsa may mu.ingon na failed ang election? It must be an

authority, a third person. That is the BLRthe Med

Arbiter, you must seek and schedule another date for

election. That is why this consent election definition is

impractical. it is as if you are saying management lutuan


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na tanan mahimo nimothats the writing behind the lines

of this definition. Now, when do you have a run-off

election?

1. if you have had a valid election before.

2. In that valid election, there were at least 3

choices. 3 choices. And then none of the choices received

a majority of the valid votes cast.

3. And then the votes of the unions is at least 50%

in all. Then you have a run-off election.

Those are provisions. Question: Can you have a

certification election if theres only one union running?

Yes. you can. What are the choices? Union A and No

Union. Why? kinsa mani si No Union? kinsa mani na

kandidato? Its the supreme courtwho said in Quijano vs

CIR reiterated in Victoriano vs. Victoriano Workers

Assoc., that the right to self-organization is not only the

right to form, join, and assist a union of ones choice but

also not to join any union. Even if you have only one

union, it is incumbent upon you to hold a certification

election. Why? because a certification election is the best,

the optimum method in arriving at the choice of the

bargaining unit. Bargaining unit in a certification election

proceeding, there is a determination of two factual

proceedings:

1. What is the will of the bargaining unit. do they

want representation or no representation? I tell you, for the

first time, that is brought out in the latest case that i told

you. This BPI. brought out there. The first issue to be

determined in the certification election proceeding is

whether or not this is the bargaining unit and what is its

choice. If it wants representation, then, that will go to the

next question.

2. Who is the representative. That is determined in

the election proper.

Now, run-off election, 3 choices. so in the very least you

have two unions running and No Union, in the very least

why is there a requirement that 50% of the votes must be

votes for the unions but none of them receives majority of

the valid votes cast? because, if No Union receives already

the majority of the valid votes cast, wa na, humana, daog

na. If it is less than the majority of the valid votes cast

then, at least 50% ni-a sa duha. Thats the only

mathematical choice that you have. None of them receives

majority of the valid votes cast. So what is the contest in a

run-off election? The two choices with the highest number

of votes is the one that is running for the run-off election.

Can it be union A or no union? it can never be. It can only

be either No Union wins or two unions go through a run-

off election.

Alright. what is a referendum? remember, this has got to

do with the an allegiance to the federation. For it to be a

valid disaffiliation, overwhelming majority of the those in

the bargaining unit must withdraw their allegiance from

their assisting representative and then choose another

union federation. But no other terminology based on 9481

a local or a chapter is a workplace union that has no

independent registration. How was it registered? the

federation that has registration issues a chapter certificate

and then the local chapter now becomes a union with

sufficient personality to file a petition for certification

election. An affiliate is a workplace union that has an

independent registration. Theyve accomplished an

independent registration. Subsequently, they affiliate with

a federation. Ngano mu-affiliate pa man siyag federation?

because they feel inadequate. federation has so many

resources. In effect, the affiliate has a double __

personality because it can disaffiliate from the mothe

federation without having to affiliate to another federation

Why? because it can stand on its own. it has its own

independent registration. and the SC has already said, tha

a local chapter that disaffiliates from the federation and


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is intervention on the part of the Dept. of Labor. but I tell

you that the cases so far that have been decided by the SC

they have all been shutting down voluntary recognition

under those circumstances. First circumstance: you cannot

file for voluntary recognition within the 1 year certification

year rule. 1 year from and after the results of certification

election is the least there can be no petition for

certification election neither can there be voluntary

recognition if the one that wins in a certification election is

No Union.

Second rule (circumstance): this Sta. Lucia case. If there

is a petition that is filed, it is dismissed and then there is a

pending registration/re-registration of a union, part of the

one who filed was dismissed. You cannot go through a

voluntary recognition according to the SC. because that is

already an organized establishment. So at least those two

instances you know there cannot be a voluntary

recognition.

Alright? We are ready for the next exam. :P

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