2nd Exam Labrel 2012

AMDG
Lectures of Fr. Nazareno Labor Relations 2nd Exam SY 2012-2013
DAY 11 Certification of Election Who may file a certification of election? Where can you file? What are its contents? When can you not file? How? Q. Who can file? Rule VIII, Sec. 1 (as amended by DO No. 40-F-03, October 30,2008 after RA 9481 which took effect June 14,2007) 1. Any legitimate labor organization which can be a local or independent union, or a federation or national union 2. The employer when requested to bargain collectively in a bargaining unit when no CBA exists 3. (not found in the said rule, this will be discussed later)When there is already a CBA in the last 60 days of the agreement a.k.a. FREEDOM PERIOD. 25% of the bargaining unit who supported the certification of election can file even if they are not a legitimate labor organization. - this right is indubitable because the right to self organization includes the right not to join the union. Certification of election must determine 2 issues: (1) whether or not the bargaining unit wants representaion? (2) if they want representaion, who is their representative? The said rule assumes that the union or the workers want representaion. BUT SC has said the right to self organization includes the right not to join a union. Otherwise, it will not be a right. Q: Where do you file? (Rule VIII, Sec. 2) The new rule is complicated. Old rule was changed by Nestle case in Cagayan de Oro The union in Nestle Plant CDO decided to file a Certificationof Election in CDO. Nestle moved to dismiss alleging that it is the regional office of the employer and the main office of the employer is in Makati, it should be filed in Makati. The union contended that it should not be in Makati because that will render nugatory our right to self-organization. They cannot afford to go to Makati and file it there. SC said the it is the DOLE Regional Office that has jurisdiction over the workplace. Therefore, it is the Regional Office in CDO that has jurisdiction since the plant is located in CDO. What does the Rule say? (1st paragraph) A petition for certification election shall be filed with the Regional Office which issued the petitioning unions certificate of registration/certificate of creation of chartered local. chartered local or the federation. If Manila issued the license of the union and they are now petitioning in Davao because they want to organize the particular branches of PPI in Davao, can they file it in Davao or should they file it in Manila? Here in the IRR, you should file it in Manila. That is an added confusion. 2nd paragraph says: The petition shall be heard and resolved by the Med-Arbiter. Med-Arbiter is the first line officer of the BLR. BLR has the jurisdiction over certification election petition, inter or intra union disputes, registration of unions, cancellation of registration. 3rd paragraph says:
3-Manresa (Jonah,Ian, Ana, Jesse)
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Where two or more petitions involving the same bargaining unit are filed in one RO, the same shall be automatically consolidated with the Med-Arbiter who first acquired jurusdiction.--- simple ra na ---Where the the petitions are filed in different ROs, the RO in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. It is not clear here that you are talking about a workplace that actually struggles 2 ROs. It just says here that if you are filing in 2 ROs. But I think the idea is that the workplace is the basis of the union. They should clarify it. What Regional Director has jurisdiction? It should be the one who has the correct venue. Now, BPI has branched all over the Philippines, is it like PAL which has branches and ports? PAL is only one bargaining unit for all the branches for rank and file. But BPI is split up, all Davao branches belong to one bargaining unit (from Digos to Panabo). That is one bargaining unit covered by 1 CBA. How did that happened? That happened by peculiar historical collective bargaining. Its a very contentious case which took place 20-25 years ago. (The father of Councilor Librado was the one who organized the union for the BPI branches in Davao. Dean Inigo was the lawyer of BPI when they were on strike.) Section 4. Form and contents of petition(READ) Remember what is the nature of the Certification Election? It is non- adversarial. It is fact finding. So, therefore for failure to comply with the contents in Sec 4, your petition cannot be dismissed. It will just be given back to you and you are told to pick it up quickly. Because it is factfinding. It is not adversarial. Now, why is it required to be verified? You know of course what verified is. The petitioner under oath respectfully averse before his honorable Med-Arbiter. 1) that the petitioner is the local of the workers of XYZ corporation affiliated with FFF federation of laborers. At the end of that, you have the verification. A verification is another affidavit: I so and so being the president of the above named local union under oath because I say that I am authorized, that I have read the contents of the post the preparation of this petition, that I know that the contents are true and correct based on my personal knowledge. Then you sign affiant. Then it is subscribed and sworn to before me as notary public. That is verification. When you say verification needed, to prevent fly by night personalities that take advantage of what is called the automatic certification policy. Why? In the direct letter of the law, in unorganized establishments, once a petition of certification election is filed in unorganized establishments, there is an immediate order to hold certification election automatically. Unorganized establishments ha. That is Art 257. Art. 257. Petitions in unorganized establishments. In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by a legitimate labor organization. That is the policy of automatic certification election in unorganized establishment. In other words, the benefit of the doubt is the workers should be given a chance to choose their officer. So if what you allege there is not true, wa kay membro diha etc, you can be caught for perjury. This is to limit the abuse of the policy of certification election. Now, if you cannot meet these requirements in the form and contents, you just take back the petition and refile it because there is no penalty for refilling a petition. But the Med-arbiter should help you if you are a labor organization because the law favors the right to self-organization. Tabangan ka sa Med-Arbiter. Kung wa kay abogado, kami na lang muverify nimo. Naa may abogado ang Med-arbiter, before whom you verify your petition. Because the important thing is the petition should contain all these actual requisites so that the med-arbiter can properly act on you interest. Q: when can you file a certification election? That is answered by Section 3, Rule VIII, Book 5. Taas kaau ang answer. It is important to remember when you cannot file a certification election.
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There are 3 imstances when you cannot file: a) When the so called certification year rule applies. b) When the so called deadlock bar rule applies. c) When the so called contract bar rule applies. Therefore, when the 3 rules do not apply, you can file. What is this certification year rule? a) When the fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within 1 bargaining unit within 1 year prior to the filing of the petition for certification election. You cannot file a certification election. So actually, the certification year rule is from the moment the labor organization is certified as exclusive bargaining association, it has 1 year to conclude CBA with the management. You cannot file a certification election covering the same bargaining unit. Q: Does that apply to organized establishments only Art 256? Or does it apply to unorganized establishment also Art 257? It applies to both because the certification rule says, that within 1 year from and after a certification election results, there can be no certification election that can be filed for that bargaining unit. An organized establishment is 1 that has either an operating CBA or a certified CBA. Why are those two not the same? There might be a certified CB agent but it has not yet proven a CBA. That is already an organized establishment. Or, there might be an existing CBA already and there is an exclusive bargaining agent administering that CBA. That is an organized establishment. Unoraganized, there is no CBA and there is no exclusive bargaining agent. That is unorganized establishment. Suppose the certification election ends up with a union winning and being certified as exclusive bargaining unit, that is an organized establishment, he is also given 1 year. He is free from another certification election ousting him. So he is at peace and concentrate on organizing or negotiating a CBA. But if the certification election ends up with no union winning, it has also 1 year that no certification election shall be file in a bargaining unit. Whats the reason for that? To give the employer and the workplace rest because a certification election is very contentious. Only at the end of that 1 year that a certification election can be allowed to be filed. So the certification year rule applies to both organized and unorganized establishment. DAY 12 Let us go over them. Book 5, Rule 6 Determination of representation status. If there is only 1, you can you to voluntary recognition. Is that the correct conclusion? Because there is only 1 union, you can go ahead and recognize. Will you marry a guy because he is the last male on earth? Is that the right conclusion? Something is wrong. It detracts from the right to self-organization. And you will see later on that SC reiterates that. I will hold you responsible for Rule 7 on Voluntary recognition. You go though that. I am a firm believer of the inconsistency and legitimacy of recognition. Rule 6, Sec. 1- xxx The determination of such exclusive bargaining agent is a non-litigious proceeding and as far as practicable, shall be free from technicalities of law and procedure xxx If it is so simple, if it is non-litigious, why can you not go through certification election? Time and again that is always the conclusion of the SC. Hold a certification election. Alright, we have seen Rule VIII. At least as to the question who? What should be contained? Where to file? And as to when, we will leave that out for a while.
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Q: How? Sec. 5Raffle of the Case. Notice of Preliminary Conference, thats sec. 6. So the petitioner union, the legitimate labor organization is not obliged to furnish a copy and provide proof of service before filing a petition. There is no obligation on the part of the union petitioning to serve copy first with the employer. It is the job of the Med-Arbiter to send a copy of the petition to the employer. Q: Does the employer has the right to receive a copy of the petition for certification election? Yes. RA 9481 says in a certification election, the employer is a by-stander. He is not a party to the case but he has the right to receive a copy of the certification election petition. Where is that in RA 9481? ART. 258-A. Employer as Bystander. - In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer's participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature; and (2) submitting the list of employees during the pre-election conference should the Med-Arbiter act favorably on the petition. So he has the right to be informed and notified. How else an he be informed and notified if he does not receive a copy? He may not be a party but he has the right to receive a copy of the petition. Why is he not a party? Because in the first place, there is no litigation. The determination of such exclusive bargaining agent is a non-litigious proceeding and as far as practicable, shall be free from technicalities of law and procedure, provided only that in every case, the exclusive bargaining agent enjoys the majority support of all the employees in the bargaining unit. (Rule VI, Sec.1). Gi usab nila ang language sa American jurisprudence. It should be that the exclusive bargaining agent is the choice that it should not only enjoy the support. (It might not be your choice but it may still have your support. Kay ngano man? Wa nay lain. ) HE MUST BE THE CHOICE. That is the exercise of the right to self-organization. Alright, so the employer now has notice. He has a copy of the petition. Suppose, upon receive of the copy and after learning the names of the employees who signed, the employer approaches the employee 1 by 1. Kung ikaw empleyado ka, mudeny ang employee. This is the case where the employer filing a manifestation to the Med-Arbiter. He is not a party ha but he file will a manifestation and attached to the manifestation are the affidavits of those who signed the manifestation withdrawing their support from the union. Q: What happens if there is evidence of non-support of their petition? That is when the SC said that the best way to determine who is telling the truth is to hold a certification election. It is the best way to determine the will of the majority. But, Jinggoy says in RA 9481, Art 256 and 257: ART. 256. Representation Issue in Organized Establishments. - In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed by 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 before the Department of Labor and Employment within the sixty (60)-day period before the expiration of the collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members.
AMDG
At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. Art. 256, If it is filed by the federation in organized establishment. Art.257-unorganized, this is a virgin workplace, there is no union yet. ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its 1ocal/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members. Ok, it is possible to hold a certification election without revealing any employees in a workplace that is already in favor of the union. It will be the officers of the federation and not the union, who will sign the petition. So the employer cannot pressure any of the workers to withdraw their support to the petitioning union. That is the whole idea. But anyway, even if there is that , the SC continues to say that the best way to determine who is telling the truth is to hold a certification election. If you are the employer and the employees have truly withdrawn, dili ka mahadlok ug certification election. If you are the union and you say that is not true, you will be confident that you will win because the truth will come out in secret ballot. So, that is the policy follow by the SC. Now, preliminary conference Sec. of Rule VIII. Followed by Sec. 7- Forced intervenor. Sec. 7 Forced Intervenor- The incumbent bargaining agent shall automatically be one of the choices in the certification election as forced intervenor. Now, IRR says that a petition for certification election is a non-litigious proceeding. There should be no technicality of the law involved and yet, for purposes of the law there used the terminology of litigation. Why? The union who wants a certification election is called a petitioner. If there is another union that wants to join the certification election and present itself as choice of the employees, the 2nd 1 should file a motion to intervene. He will be called 2nd intervenor. If there is another union that will come in, it will be called 3rd intervenor. Now, if it is an organized establishment, that means there is already a CBA. There is an exclusive bargaining agent but the CBA is about to end. So theres the freedom period of 60 days. Q: Can any other union can file during that 60 days? The exclusive bargaining agent will not file a petition for certification election. Naa pa lang lain na musulod na lang hinuon. Huwat ra na siya ug 60 days mulabay, exclusive na pud cya. So huwaton niya. Kung karon naay mufile, kinsa man to? Petitioner tong mufile. Siya na wa mufile, mao na cya ang ginatawag na forced intervenor according to Sec. 7 of RuleVIII. He is the forced intervenor, ika duha siya. If there is any other union who will file a motion for intervention to take part of the elction, that union is called 2nd intervenor, 3rd intervenor, etc. Alright, Sec. 8 of rule VIII (READ) Alright, Preliminary Conference na, gipatawag na, tagaan ug notice ang employer. Gitawag na tong petitioner, gipatawag sad tong intervenor. Q: What will be discussed in the conference? Sec.9 (READ). So there we are in the Preliminary conference, the first part of the proceeding known as certification election. The first part is the determining of the bargaining unit.
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And the landmark case which you have to read, Belyca Corporation vs Ferrer-Calleja (168 scra 184). Q: What are the criteria for the determination of an appropriate bargaining unit? It was the employees within the appropriate bargaining unit that will choose whether or not the right representation and if it is so right representtion, who is their representtive? Now, in that case, this happened in Malaybalay, Bukidnon. Belyca is a local businessman and owns a sizable farm with piggery and plantations of corn,camote, soy bean. When you go to the town, Belyca also owns a supermarket, bowling alley, 2 movie houses, and a restaurant. ALU filed a petition for certification election to be held in just the agricultural unit. Belyca filed a manifestation saying that this is not the appropriate bargaining unit. It should be the entire bargaining unit, the agricultural, supermarket, bowling alley, movie houses, and restaurant employees. Kung ilahi ni nimo, dayon mag file na pud ni, dayon mag file na pud ni, mag file napud ni, wa nay trabaho mahimo, sige na lang ta bargain ini. It will be a repetition. That is why the management made a manifestation. The Med-Arbiter rules that this is the appropriate bargaining unit. They appealed, upheld by the Director of BLR. At that time, there was no CA, they went to the SC. The SC says, there are 4 criteria for the determination of appropriate bargaining unit. The 4 criteria are as follows: 1) bargaining history Whatever was the bargaining unit in the past, that is the bargaining unit. If a petition for certification election is filed over a bargaining unit which already have a CBA, which already have an incumbent union representing it, the presumption is it will still be the same bargaining unit. So dali na lang madecide ang issue kung organized establishment. Q: What can change that? Any substantial change with compelling reasons. Example of intervening substantial cause, NAFTU vs Mainit Lumber ULGWP(192 scra 598). Mainit Lumber in Surigao used to have 2 bargaining units, the logging division and the sawmill division. Nahurot naman ang logs, wa namay logging pero sige lang gihapon ug sawmill kay imported naman ang logs gikan Indonesia. The SC said you can make it just 1 bargaining unit. Another example is the case of SMC vs Laguesma (1994). This case has something to do with San Miguel Beer salesmen. They used to have 5 separate bargaining unit but when Beer na Beer came, they had to let go of their mestizo salesmen. So the union filed a petition for certification election as 1 bargaining unit. SMC opposed it the joining together of the bargaining units. SC said you put them together. So the 1st criteria is bargaining history. The only exception is intervening substantial change in the circumstances.
2) Globe Doctrine This is not SC case. This is just decided by the NLRB (US).
This particular Globe company had 1 general bargaining unit. It was engaged in operation of trains, they had switchmen, electricians and other workers in 1 general bargaining unit. It happened that the electrician increased in number or close to 50% of the general bargaining unit. The electricians moved that they be separated into their own bargaining unit. The main bargaining unit opposed. The NLRB said that the interest of the workers can be serve in both when the bargaining unit remains intact as 1 or if it is separated. So, lets give the choice to the workers. The Globe Doctrine came to be understood as the choice of the workers. Whatever the choice of the workers as to the precise configuration of the bargaining unit should be the criterion used in determining the appropriate bargaining unit.
AMDG
Notice the terminology of the law. The law does not say the most appropriate bargaining unit. The law only says the appropriate bargaining unit. Therefore, the discretion of the trial of facts lies on the Med-Arbiter. As long as it is supported by substantial evidence, it is alright. It is only when there are compelling reasons. Now, let me point out to you that those who have not read the Globe case, they would say that the choice of the workers is the criteria. NO. That is wrong. It must be in the precise content if there is a general bargaining unit composed of the plurality of the skills and work relations of workers. There is a craft that is growing in turbulance. Then, it is strict in main that is the choice of the workers. So, when it comes to the choice of the general bargaining unit and the craft bargaining unit, then it should be the choice of all. 3) mutuality of interest or communality According to the SC, this is the #1 criterion, communality of interest. The workers in the agricultural section are paid in a seasonal basis, of them. Besides that, there is no communality of interest between these workers. There is no possibility of social congress. Thats why the SC says that this is the appropriate bargaining unit, not the entire. 4) status of the employees If you are probationary employee and there are regular employees, you cannot be mixed together because your basic primary interests are not the same. Kung prabational ka, imong damgo, maregular ka. Kung regular ka, imong damgo increase. You would clash with each other when employer offers in different terms. The SC said they should be separated. It is important to realize bargaining unit. It is not true that the labor organization represents the employees. No. The union represents their bargaining unit. Kung wala ka diha sa bargaining unit, you are not represented. But if you are within the bargaining unit, whether or not you are a member of the union, you are represented because it is the exclusive bargaining agent. So, this is the importance of the bargaining unit.
DAY 13 The determination of the appropriate bargaining unit. Q: What is the significance of a bargaining unit? 1) As to its determination, a bargaining unit is first described in the petition for certification election. How do you know that? Because in Rule 8, section 4 letter C of the IRR, Form and the contents of petition, you have there the description of the bargaining unit. The description there is tentative. It is the labor organization that proposes the configuration of the bargaining unit. 2) The next time you come across the bargaining unit is in Rule 8, section 13 letter B, a description of the bargaining unit. Where is that found? The 2nd time it is found is in the Order and Decision to hold the certification election. It says within 10 days form the date of the last hearing, the Mediator Arbiter shall FORMALLY ISSUE a RULING granting OR DENYING the petition, EXCEPT in organized establishment WHERE THE GRANT OF THE PETITION CAN ONLY BE MADE AFTER THE LAPSE OF the freedom perion. (emphasis: as provided for in the codal) So, thats the second time the description of the bargaining unit is found. 3) The third time that it is found is, it is found in Rule 9, section 15 (formerly section 16 but because of the amendments naging section 15) in the order certifying the collective bargaining agent. Nay certification electionthe results are in. It says the the union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within 5 days from the day of the election, provided no protest is recorded in the minutes of the election. Now, in the first description, in the petition for certification election, the employer can question the description of the bargaining unit. He can protest just like what the Belyca Corporation did in the case of B.F Belyca vs. Pura ferrer Calleja.
AMDG
Now, when the MedArbiter orders the holding of the certification election, thats the second time the description is given. That is an appealable order. So you can again question the description. And the third, the order can still be questioned. Why? If the order certifying the appropriate bargaining agent, because that contains the description of the appropriate bargaining unit, if the description of bargaining unit does not square with the description in the order to hold a certification election then there is something wrong. The appropriate bargaining unit once it is determined and has become final in cannot be expanded to include other employees. Why? Because if you expand it then those who have not yet exercised there RTSO they are included without there consent. It is a denial of their right to self organization. If you reduce it, you take away some workers there. Even if they are circumscribed by the original description of the bargaining unit in the order to hold certification election, there is also a violation because they have already voted and they are included in the bargaining unit. So hang on to that because very few understand that. Sometimes even the Supreme Court misses it. Many of the commentaries they just miss that out. So if later on there is a circumscription of a bigger bargaining unit that was actually declared in the first place, there can be a nullification of inclusion in the bargaining unit because there is a continuing violation of the RTSO. And the RTSO is not waived by the union because it is a personal right. Only the individual employee can waive it and they must waive it knowingly. How can you waive it knowingly if you are just by implication either embraced or rejected by the bargaining unit? You are improperly embraced by the bargaining unit if you did not take part in the certification election. Gi apil ka lng nila. There is a rejection if even if you voted but then when the CBA is concluded you are not part of its benefits. You are excluded when you should have been included. In either case, there is a violation of the RTSO. So please take note, that is the limitation of the scope of the CBA. You cannot enter into a CBA wider than the appropriate bargaining unit. Q: Who decides the bargaining unit? Largely it is the labor organization but then it must receive the imprimatur of the state. Ultimately it is the state decides who/what is the appropriate bargaining unit. You contrast that with the EXCLUSIVE BARGAINING AGENT. Q: Who decides the exclusive bargaining agent? It is the workers. They decide. The Employees. The employees within the bargaining unit decide who their exclusive bargaining agent is. Does the state have any role in the decision? NO! the state merely recognizes, it certifies. Q: What is the precise value of the ceftification? The precise value is to announce that all others that you are out of the picture because this particular bargaining unit has decided who their exclusive bargaining unit is. And that is the same legal value of a torrens title. A torrens title merely recognizes ownership. It does not create ownership. What creates ownership? It is the mode. You bought it, somebody gave it to you, or you acquired it by prescription. Occupation in not a mode, prescription is a mode. Nitungtong ka anang yuta unya nagtukod kag payag unya niongan kag ako ni kay nitungtong man ko skwater lng ka, dili na imuha. Pero ug niongan ka ako ni kay 30 years na ko diri pero way titulo, nag tanum ko mga punuan, ang fence xxx I am occupying it in the concept of an owner to the exclusion of all others xxx that is prescription. Mao nay fence kay gipahibalo nimo sa tanang kalibutan na ako ni! That is the same thing with certification of the union as exclusive bargaining agent. The trouble with that exclusivity as you would fine out later is that it is really exclusive. It even excludes the workers themselves. The workers cannot even bargain for themselves even if they wanted to. Hasta ang tao na principal, na they are supposed to be the beneficiary of the representation of the union, they cannot act and set aside the agent. That is the number one difference of agency in collective bargaining and agency in the civil code. Because in the civil code, the principal has the right to do away with the agent at any time even if the agency is still in consideration. It is based on confidence and trust thats why you can set it asaid. However, in labor, you cannot set it asaid, the exclusive bargaining agent.. All individual contracts ceases. Rank and file ka lng but you have a special talent, you dont need an exclusive bargaining agent. Rank and file ka sa PALEA, ikaw loading officer sa eroplano. Bisag brownout o di mugana ang system kaya nimo loadan ang eroplano kay maayo man ka sa mathematics. Unya muingon ka na kelangan mas taas akong sweldo kay mas maayo man akong abilidad sa uban what will determine your pay? The CBA that covers you will determine the pay! It is not you...you cannot bargain. You are with the collective appropriate bargaining unit. You are inside. (Father discussed about the communist nation)
AMDG
Ang sunod Collective bargaining unit. Appropriate collective bargaining unit. In an unorganized establishment, that is an issue to be determined at first instance. In organized establishment, it is no longer an issue because one of the criteria for the determination of the appropriate bargaining unit is BARGAINING HISTORY. Since an organized has a bargaining history, the next time there is a PCE covering that same organized establishment, the presumption is it is the same bargaining unit. The configuration is the same. So the issue is what is an organized establishment? Il ask you to read California Manufacturing vs Laguesma 209 SCRA 606 1992. So the first issue to be determined is what is the configuration of the appropriate bargaining unit. After that determination, the next issue to be determined is, does the bargaining unit decide for representation? and if so who is there representative? How will that be decided? In an election by secret ballot. Take a look at Rule 8 section 14 as amended, Ground for Denial of the Petition. Ok. You have to know this particular section very well.
First, letter A, the federation or national union is not listed in the roster of unions. Who keeps the roster of unions? It is the bureau of Labor Relations. Take note even if it is a government establishment and you are dealing with government union or employees organization the list of unions in government is not kept by the CSC, it is still kept by the bureau of labor relations. Now, if you are not in the list. That means what? You are a petitioner and your allegation that you are a legitimate labor organization is subject to perjury. Remember it is verified. What do you mean by verified? Example, I am the president of this union that is filing this petition, that I have caused the preparation of this petition. I have read the contents of this petition and I know that they are true of my own personal knowledge. So how can you escape perjury? Namakak ka na legitimate organization ka pero wala diay ka sa listahan. That is the requirement of verification. You can be held for perjury. That is why that is the only motion to dismiss a PCE that is allowed because it directly contravenes the petition.
Letter B, failure to submit a charter certificate. Which means the one filing is the local chapter, not the federation. Under article 231, Registry of unions and file of collective bargaining agreements. You will see there that the bureau shall keep a registry of legitimate labor organizations. This is the meaning that you are not in the list, article 231 of the labor code. The locals are also listed there but sometimes even after the regional office of the department of labor is informed, because the registry is located in the national capital region, it may take some time. So, if you are the local filing, you attach to the petition a certified true copy of the charter certificate. It means that it is the local that is filing. With the federation, how do you allege that you are in the list? You give your registration number. Example, Samahan ng manggagawa ng pilipinas with registration certificate of such and such, a duly recognized labor federation. Human pagtanaw sa list wala ka didto, namakak ka, so liable kag perjury. Thats how you catch fly by night operators. Thats why they require it to be verified. Remember, there are two who can file on the labor side, the federation or the local. What is the benefit in the filing by the federation? The advantage is only the president and the officers of the federation sign. The officers and members of the local do not sign. So the employer does not know who the members are, the employer cannot pressure or apply compulsion to the members. If it the local who files, what is the advantage? Later on if you win it is the local that has the personality and
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when they enter to a CBA the local can decide what percentage of the union dues will go to the local. But if it the federation who files, then the federation can determine how much. In the end it is all about money.
Letter C, the third ground. Filing the petition before or after the freedom period of a duly registered collective bargaining agreement. Question, can this petition be from an unorganized establishment? No. For this ground to operate it can only be a PCE filed from an ORGANIZED establishment. Article 256, organized establishment. So there is narrow window within which you can file a PCE if it is an ORGANIZED establishment. What is that window? THE 60 DAYS FREEDOM PERIOD, the last 60 days for collective bargaining. Take a look, it says the collective bargaining agreement shall not be affected by any amendment, extension, or renewal of the CBA. You might be tempted to move the 60 day freedom period further. How? Both union and management agree to extend it. For example, the term is 5 years then they agree to extend it for another 1 year. Even if they agree to extend it for 1 year, the freedom period remains the original CBA. The last 60 days of the 5 th year. What is the value of the extension? We will later on find out when we go to collective bargaining. But for purposes of certification election, the 60 day freedom period is not affected. It remains the same.
Letter D, the PCE can be dismissed for Filing of a petition within one year from the date of recording of the voluntary recognition, or within the same period from a valid certification, consent or run-off election where no appeal on the results of the certification, consent or run-off elections is pending. Shortcut ani is within 1 year from the date of publishing the results of the certification election, SEALED OFF. Q: Why is there a 1 year no certification filing rule? This is called the CERTIFICATION YEAR RULE. If the certification election ended with a union being certified as the exclusive bargaining agent, the law would like to give him 1 year to negotiate/conclude a CBA with the employer. If the certification ended up with no union winning, the law wants to give that workplace a 1 year rest period. That is called the 1 year certification period. This applies to both organized and unorganized establishments. This is the only rule of the three rules where you are prohibited to file for PCE, this is the only rule that can apply to UNORGANIZED establishments.
Letter E, Where a duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 of the Labor code within the one year period referred to in section 14.d of this rule, or where there exists a
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bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout where an incumbent or certified bargaining agent is a party. This is called the DEADLOCK BAR RULE. Even if the 1 year certification rule period is consumed but then there is a deadlock, how is the deadlock shown? It is shown by the fact that when either party invokes voluntary arbitration or compulsory arbitration or a declaration of strike. If and when that happens no PCE covering that SAME BARGAINING UNIT can be entertained by the med-arbiter. That is called the deadlock bar rule. It applies only to organized establishments.
Letter F, a PCE can be dismissed on the ground that in an organized establishment, the failure to submit the 25% signature requirement to support the filing of the petition for certification election. Take note, if it is an organized establishment and there is 25% of the bargaining unit signing in support of the petition, the med-arbiter has no discretion to dismiss the PCE. If it just filed within the freedom period and the certification year rule does not apply, the deadlock bar rule does not apply then the med-arbiter has no choice but to pursue this certification election petition. Now the question is if there is signature support but it is less 25%, can the med-arbiter entertain the PCE? YES. It is not that this should mean that if the signature support is lower than 25% percent, the med-arbiter has no choice but to dismiss-NO! it just shows that if there is 25% signature support then the med-arbiter has no choice but to accept the petition. Lower than that, the med-arbiter has discretion the only time it loses this discretion is when there is 25% signature support.
Letter G, Non-appearance of the petitioner for 2 consecutive scheduled conferences before the med-arbiter despite due notice. These rules will be changed. You know why? This is not consistent with the nature of a certification election. If the certification election is non-litigious in character, the moment there is non-appearance then certification should go right away, if the law is sincere in finding out the will of the workers. Mao nay makadaot. Sometimes what gives away the nature of the law is what it does, not what it says. Or In this case what it does not do. So sa ato pa mu apply diay ang failure to prosecute?
Letter H, Absence of employer-employee relationship between all the members of the petitioning union and the establishment where the proposed bargaining unit is sought to be represented. That is decided not after the declaration of the bargaining unit, that is decided earlier. The ER will make a manifestation. There is now an issue here of appropriate bargaining unit because these people are not our employees. Then you litigate, whether there is ER-EE relationship. So the stage is set for the next part of the proceeding, and what is this? Inclusion and exclusion proceeding. You have determined what the parameters of a bargaining unit are. Let us say regular, daily paid production workers of XYZ corporation. Then you say ikaw employer ihatag tanan listahan sa employee. Ikaw union ihatag ang listahan sa mga empleyado. Human dili pareho ang listahan. Diha magsugod ang lalis. Who are included, who are excluded? That is the next issue to be determined. (END) DAY 14
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Rule VIII Sec. 15 Prohibited ground for the Denial/Suspension of the Petition. The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said unions. Art. 245-A Effect of Inclusion as Members of Employees Outside the Bargaining Unit.The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of the said union. We have gone through the grounds for denying the petition for election and then you have Section 15 prohibited ground denial or suspension of the petition. What is this? The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of registration of the union said employees are automatically deemed removed from the list of membership of that union. That is the by virtue of Art. 245-A which is a new provision introduced by RA 9481. Q: Is this not a disenfranchisement of a union member without due process of law? You know this particular new provision was introduced by RA 9481 in order to overturn the decision in Toyota vs. Toyota and the Slazenger case. You know in that case, the union have some managerial and supervisory employees included in their roster. Now, the RR move to dismiss on the ground that if the roster includes managerial EE who are prohibited from joining units and they include supervisors who are permitted to exercise their right to self-organization but they must join their own union. The argument of the management is the one filing is not a union, it is not a legitimate labor organization. And only a legitimate labor organization can file a petition for election. That argument was shot down by the Labor Arbiter, was shot down by the Director of the Bureau of Labor Relations. They went on the Court of Appeals and when they reached to the Supreme Court(SC), the SC said correct! If you have an organization composed of managerial and rank-and-file that is not a union. So the Petition for Certificate Election was validly dismissed. This new law sought to prevent that because according to the discussion, that problem could have been easily solve in the exclusion and inclusion proceedings. Once there has been declared an appropriate bargaining unit and there is an order for a Petition for Certificate Election has been issued. Then you look at, the employees embraced by the bargaining unit. If you are not there, you are out. You are not covered. So if the managerial EE included in the roster of the union is automatically out. Question, if it is managerial, then they have no right to self-organization. What happens if he is not? Example: Suppose these are production workers, that are daily paid regulars. Those are the parameters of the union. Now, they are also at the same time sales force, in fact they are only part-time production workers. So they belong actually to two kinds of bargaining units. The sales man and in the production. He is there included in the list and the employer says, he is outside the bargaining unit because he is actually part of the sales force. The solution is automatically he is out. And in what right can you say that he is automatically out? Jinngoy Estrada listened to the Labor experts that want a few obstacles as possible to the certification election, which is always in favour of the union. The (effect?) of the resolution is this, but on the other hand if they have the right to self-organization and there is a question. As to their belonging to or embraced within the bargaining unit. The (party to dangerous?) would leave it entirely to the law. If you have a substantial interest to be within a bargaining unit. Because in fact you are receiving a daily regular wage there as a part-time employee or seasonal employee. Why can you not be embraced? Why are you deemed automatically out. That is the problem, so the solution, I do not know. The SC might still overrule this. We do not know but this is precisely enacted to overturn the two SC decisions. Sec. 16 Ancillary Issues All issues pertaining to the existence of employer-employee relationship raised before the mediator-arbiter during the hearing(s) and in the pleading shall be resolved in the same order or decision granting or denying the petition for the certification election. All issues pertaining to the validity of the petitioning unions certificate of registration or its legal personality as a labor organization, validity of registration and execution of collective bargaining agreements shall be heard and resolved by the Regional Director in an independent petition for cancellation of its registration and not by the mediator arbiter in the petition for certificate election, unless the petitioning union is not listed in the Departments roster of legitimate labor organizations, or an existing collective bargaining agreement is not registered with the Department.
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It means subordinate issues. This particular provision enunciates the policy of the Bureau of Labor Relations when it comes to Certificate of Election Petitions. That it abhors interlocutory orders. All issues will be settled in the main issue. As to WON to grant , a petition for certificate of election. So the issues of WON there is employer and employee relationship, won there is registration, or registration has been cancelled, etc. Or these issues are determined in the overall issue as to WON the order to hold certificate of election shall be permitted. So, Section 17 says, Med Arbiter shall release her order or decision granting or denying the petition of the parties on an agreed date and time ten days from the last hearing. The order granting the conduct of the certification election according to Section 18 may be appealed within ten days from a receipt of a copy thereof. The appeal shall be verified and shall consists a memorandum of appeal specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence. So the period to appeals is the same as the period to appeal from the labor arbiters decision. And it must already be a verified memorandum, memorandum of appeal. Ten days from receipt(calendar days). Now, it becomes 11 if the last day is a holiday. Where do you appeal? It is filed in the Regional Office of the Dept. of Labor and within 24 hours from the receipt of the appeal. The Regional Director shall cause the transmittal thereof together with the entire records of the case to the Office of the Secretary of Labor. Now, if there is no appeal within the ten day period. The med-arbiter shall enter the finality of the order or decision in the records of the case and cause the transmittal of the record xx to the regional director. Reply is also ten days from the receipt of the memorandum. The memorandum of appeal must show proof of service of the memorandum of appeal to the other party. And from the date that a copy of the memorandum received by the other party has ten days. So this mandate of the Med-Arbiter, to send the record of the memorandum of appeal within 24 hours from the receipt of the appeal is never followed. But you are penalized, if you do not submit your appeal on time because the med-arbiter will normally wait for the reply to be appealed. And together if the records are sent up to the Secretary of Labor. Sec. 22 The Secretary shall have (15) days from receipt of the entire records of the decision within which to decide the appeal. The filing of the memorandum of appeal from the order or decision of the med-arbiter stays the holding of any certification election. The decision of the Secretary shall become final and executory after ten days from receipt thereof by the parties. No motion for reconsideration of the decision shall be entertained. Now, if it becomes final within 48 hours, the decision of the secretary becomes final if there is no appeal and when it becomes final within 48 hours from the time the decision becomes final. The records of the case are remitted to the Regional Office for the implementation of the decision and it cannot be stayed unless restrained by the appropriate court. Who is the proper court who could restraint? The Court of Appeals. Sec. 24 Effects of Consent ElectionWhere a petition for certification election had been filed and upon intercession of the med-arbiter the parties agree to hold consent election. The results thereof shall constitute a bar to the holding of a certification election for one year from the holding of such consent election. Q: What is the definition here of consent election? The consent election is where the parties agreed immediately to hold certificate of election. In other words the first part of the hearing is rendered unnecessary because the employer agrees to the description of the bargaining unit. The petitioner is the agreement with management as to the holding with a certification of election. All other intervenors, they do not oppose. So everybody agrees no more first part. What do they do? They go to the second part, the Pre- Election Conference. The exclusion-inclusion proceeding, kinsay apil-kinsay walay apil sa bargaining unit. That is the only time in a consent election where the description of the bargaining unit in the petition and in order to hold the certificate of election. The description here of the bargaining unit and the certification of the med-arbiter that he has won the election which also contains the descrition of the bargaining unit. The three have identical description. That is when you have a consent election. In other words, these definition of terms found in Rule 1 book V section sub para. (h),
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(h) Certificate Election or Consent Election refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for the purposes of collective bargaining bargaining or negotiation. A certification election is ordered by the Department, while a consent election is vouluntarily agreed upon by the parties, with or without the intervention by the Department. This is a wrong definition. If it gives you an impression here that in consent election, that the Dept. of Labor has nothing to do with it. No! the correct definition is in Sec. 24 where the certificate of election has been filed. There is intervention of the Dept. of Labor because the petition has been filed. (H) the certificate election is ordered by the Dept. while the consent election is voluntary agreed upon by the parties with or without intervention of the Dept. They parties could just agree with or without intervention of Department and that is already called consent election. That is incorrect the correct definition is in Sec. 24, there is a petition filed and the parties do not agree of the appropriate bargaining unit and its parameters and they consent on the holding of a certificate of election. The moment it is a consent. The med-arbiter appropriates the agreement to itself and makes that the decision. So the first part is rendered unnecessary, dili namo mag lalis kung unsay appropriate. Now, Rule VIII, Sec. 25 Effects of early agreement this is for the purpose of the 60 day freedom period. Sec. 25 Effects of Early Agreement The representation case shall not be adversely affected by a collective bargaining agreement registered before or during the last sixty days of a subsisting agreement or during the pendency of the representation case. Should the incumbent exclusive bargaining agent. Remember, what is the other name for the incumbent, in relation to certificate of election? Forced Intervenor. Kanang incumbent dili na naxa mag file ug certificate of election. Llamado na gud na sila. Sila na ang nagtungtung dinha. If the 60 day period expires after 60 days without the petition for election. Its status as the exclusive bargaining agent is renewed. There is no more petition that is allowed to be entertained covering the same bargaining unit. The moment has expired without any petition for certificate of election, the window from which you can file a petition for a certificate of election is only within that 60 day period. That is for organized establishment. Now, if during your sixty days, the incumbent has entered into a CBA to renew the expiring one. And they concluded with management during the 60 day freedom period and register that with the Dept. of Labor. Q: Can that CBA bar a certification election? Is that the CBA that bars the certificate of election? Sec. 25 says No. The representation case shall not be adversely affected by a collective bargaining agreement registered before or during the last 60 days of a subsisting agreement or during the pendency of the representation case. So during the 60 day freedom period, the petition for certificate of election cannot be denied on the basis of the contract bar rule. In Sec. 25 here, they are talking about two CBAs. Why two because there is an amendment. The existing one which is in its last 60 days. It is a dying CBA. Now, during the 60 day period the contract bar rule, does not apply namely the existing bargaining agreement does not bar a petition for a certificate of election. Now, any agreements during the 60 day freedom period the incumbent enters with the management into a CBA. They register it with the Dept. of Labor. Can that 2nd CBA bar a petition for certificate of election? Muiingun ka: Wala man ta ni-agi ug election, we only have the contract that will cover future. wa nah, ayos na. Can that bar? No. The early agreement cannot bar. The right to selforganization freedom period during the last 60 days is superior to the existing contract and to a succeeding contract and that is concluded. So no petition for certification of election can be barred during the 60 days freedom period on the basis of the contract bar rule. Remember I explained to you there are three types when you cannot file a petition for election. First, certification year rule, within one year from and after the results of the certification election. Now, you cannot file a certification election. Whether it is organized or unorganized. Second, Deadlock bar rule, for as long as there is a deadlock between the management and the union. That is already the exclusive bargaining agent. Let us say at the end of the certification year, there is a deadlock, they are not in an agreement, they are not moving anymore. And sometimes there is already submitted for a voluntary arbitration or compulsory agreement. Or it is already a subject of notice of strike. There can be no issue of certification of election that can be entertained. Third is the contract bar rule. For as long as there is an existing severy. No petition for certification election shall be in the same appropriate bargaining unit covered by the same CBA can be entertained by the med-arbiter. Exception: 60 day freedom period. That is the meaning of Sec.25.
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Now the availability of the med-arbiter. That is an administrative issue, now let us go to the conduct of certification election. Provisions Under Rule IX Section 1 Raffle of the CaseWithin twenty four hours from receipt of the notice of entry of final judgment granting the conduct of a certification election, the Regional Director shall cause the raffle of the case to an Election Officer who shall have the control of the pre-election conference and election proceedings. Sec.2 Pre-election ConferenceWithin twenty four (24) hours from receipt of the assignment for the conduct of a certification election, the Officer shall cause the issuance of notice of pre-election conference upon the contending unions, which shall be scheduled within ten (10) calendar days from receipt of the assignment. The employer shall be required to submit the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit at the time of the filing of the petition. Section 4. Minutes of Pre-Election Conference. The Election Officer shall keep the minutes of matters raised and agreed upon during the pre-election conference. The parties shall acknowledge the completeness and correctness of the entries in the minutes by affixing their signatures thereon. Where any of the parties refuse to sign the minutes, the Election Officer shall note such fact in the minutes including the reason for the refusal to sign the same. In all cases, the parties shall be furnished a copy of the minutes. The pre-election conference shall be completed within 30 days from the date of the first hearing. If you are absent during the pre-election conference, that means you waive your right to the minutes of the pre-election conference. Partial acknowledgement of the completeness according to Sec. 4 and the correctness of the entries by affixing their signature thereon. Whenever the parties refused to sign the minutes. The election officer shall note such fact in the minutes including the reason for the refusal to sign the same. Gubot ba diay kayo namaglista aka kung kinsa ang nag-apil sa bargaining unit? You will be surprised how problematic it is. If you are the union, basta imong tao gani na, gusto ka naa sa lista. Kung ikaw management, gusto ka imong tao na sa lista. Kung dli imong tao, dili ka ganahan na naa sa lista. Patay naman na siya, ngano naa mana sa lista? Sometimes they will argue, buhi pa man to siya pag file sa certification of election. Edi naa pa siya dinha, because the rule says at the time of the filing of the certification election. Makakita ka ug lalis na dugay sa katanan.. Now the moment you reached 1000 workers it is so problematic. You have 1,000 workers you need to divide you will need more than one precinct. Problematic ang Certification of Election. This is what is going to be settled in a certification of election. Preparation of the ballots. Can you imagine the ballots should be translated it is a provision here. You know in the new rules it is already a provision. Section 8 Preparation of Ballots.The Election Officer shall prepare the ballots in English and Filipino or the local dialect. The number of ballots should correspond to the number of voters in the bargaining unit plus a reasonable number of extra ballots for contingencies. All ballots shall be signed at the back by the election officer and an authorized representative each of the contending unions. A party who refuses or fails to sign the ballots waives its rights to do so and the election officer shall enter the fact of refusal or failure and the reason therefor in the records of the case. The ballots are constructed for illiterates, take a look at Section 9. Marking of VotesThe voter must put a cross (X) or check (/) mark in the the square opposite the name of the union of his choice or No Unionif he does not want to be represented by any union. If a ballot is torn, defaced, or left unfilled in such a manner as to create doubt or confusion or to identify the voter, it shall be considered spoiled. If the voter inadvertently spoils a ballot, he/ she shall return it to the Election Officer who shall destroy it and give him or her another ballot. In Sec. 9, marking of votes this is a wrong title. It should be How you vote. Unlike voting in the Comelec, you write the names. Kung petioner ka, let us say FFW, ikaw ang una dinha. Kung forced intervenor ka, incumbent ka, ikaw sunod, let us say ALU. Hantud sa katapusan ana, No Union. You need to put X. Kung illiterate gani na, you will say daghan kahon ana, ang una atoa na.. kato ang cheki, cguraduhi na. Unya kung ifollow-up nimo, muiingun lang na siya: ako jud gsigurad gichekan nako to tanam.. Invalid nato. When in doubt para sa ignorante, cheken niya tanan para sigurado. Now, that is already written in dialect or Filipino, now it is useless if your bargaining units are illiterates. Adto ka sa pier, 90% ana illiterate, sa agricultural labor mga 60% ana. Things that you take for granted is a major issue in labor organizing unions. There are some from the form 201 of the employer, you think they can read. Di man. xxx
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Q: What happens to a challenged vote? There is a procedure. Rule IX, Section 5. Qualification of Voters; Inclusion-exclusionAll employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the issuance of the order granting the conduct of a certification election shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of the certification election shall be considered a qualified voter unless his/her dismissal was valid in a final judgment at the time of the conduct of the certificate election. In case of disagreement over the voters list over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Section 10 and 11 of this Rule. Section 10 is deleted in DO No. 40-F-03 Section 11 is amended and enumbered as Section 10 under Rule IX and to read as: Section 10. Procedure in Challenge of votes. The ballot of the voter who has been properly challenged during the preelection conferences, shall be placed in an envelope which shall be sealed by Election Officer in the presence of the voter and the representatives of the contending unions. The Election Officer shall indicate on the envelope the voters name, the union challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending union. The Election Officer shall note all challenges in the minutes of the election proceedings and shall have custody of all envelopes containing the challenged votes. The envelopes shall be opened by the question of eligibility shall be passed upon by the mediator-arbiter only if the number of segregated votes will materially alter the results of the election. Section 5. Qualifications of voters- inclusions and exclusion. Members of the appropriate bargaining unit. This is a mistake. You Are not a member of the bargaining unit, you are a member of the union or you are a member of the exclusive bargaining agent. A bargaining unit is not an organization, you cannot be a member, you are included or not included. Huna-hunaa ninyo ang bargaining unit, toril na-toril. Kanang kural asa kasudlan sa mga baka, para pagkagabii nay silay kasudlan, para matulog sila dinha. Mao nay Torilsheep fold. The union is an organization, so ypu talk about members or non-members. Nagsulat ani wala kasabot sa iyaha labor relations.. Civil Code and background. All contested voters, when in doubt you are allowed to vote but votes are segregated. You know exactly how many are contested. At the end of the election, in the canvassing of the ballot, if the lead of the winner is so big that that even you count the votes that has been segregated against it are not enough to compensate the lead then there is no need to open. If it matters then it will be contained in the decision of the med-arbiter proclaiming the results of the election. That is the election proceedings. DAY 15 The conduct of certification elections. There are many parallels to certification election like what you have studied under the omnibus election code on how the election is conducted. The readying of the precincts, the voters list and here we go through how we go about challenging an issue during the proceedings. Rule 9, sec. 11: On the Spot Questions - The election officer shall rule on any question relating to and raised during the conduct of the election. In no case, however, shall the election officer rule on any of the grounds for challenge specified in the immediately preceding section. Rule 9, section 11 (formerly section 12 but naging section 11 because of the amendment) on the conduct of elections gives the proper procedure on how to raise an objection or how to raise a question. The election officer shall rule on any question relating to and raised during the conduct of the election. In no case, however, shall the election officer rule on any of the grounds for challenge specified in the immediately preceding section. That is with respect to the right to vote.
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Rule 9, sec. 12: Protest; When Perfected - Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings. The protesting party must formalize its protest with the med-arbiter, with specific grounds, arguments and evidence, within 5 days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped. Now, if there are protests according to Rule 9, section 12 any party-in-interest may file a protest based on the conduct or mechanics of the election. Who is the party in interest? Remember the employer is not a party in interest because he is not a party at all. He is a mere bystander. And what is the ideal behaviour of a bystander? It is to leave the election alone. He cannot do anything to stop it, to discourage it, and he cannot do anything to encourage it. His ideal posture is to do nothing. His ideal posture is just to fold his hands and be a bystander. And you will later on find out in practice that it is more often breached than observed. I still have to see an employer that is completely neutral to an election for the representative of the workers. There is no such thing, normally But that is what the law requires of the employer, because the issue as to whether or not a bargaining unit wants to be represented and who there representative should be is there own decision. That is the reason. The employer should not interfere! To interfere means to do something positive or negative. ER should refrain from interfering. So, only a party in interest can make a protest. It could be any of the contending unions. It could be any employee included in the bargaining unit. It could be an officer of the federation who is not in ER-EE relationship with the company. So, it is not necessary that you have ER-EE relationship for you to be a party in interest. Remember, an employee whose employment has ceased because he was terminated, and the termination is being questioned, even if it is precedent to the actual elections but if it connected with organizing or exercise of the RTSO and the dismissed employee is questioning the dismissal and it has not yet been decided with finality then that former employee is a party in interest and he can raise a protest. Q: How do raise a protest? First, the protest must be recorded in the minutes of the election proceedings. What is the effect if not recorded in the minutes? The protest is deemed waived. Is this a harsh rule? NO, because if you do not have this rule, you will be encouraging protests and controversies. And as a general rule, a protest must be on substantial reasons. A slight or insubstantial or incidental question affecting the RTSO of the employee or of the secondary right of the union should not be a ground for protest. Gamay lng sipyat reklamo dayon, dili na mahimo. As much as possible it should be substantial. That why they require it to be recorded. When you protest you go to the election officer. I am protesting, I will sign in the proceedings, in the records. I will not leave until you record it. What is your protest? You are allowing these people to vote, these people are not employees. Now, is that all that is required? To record it? No, it says here in the second paragraph of section 12 the protesting party must formalize its protest with the med-arbiter, with specific grounds, arguments and evidence, within five days after the close of the election proceedings. You must formalize it in writing with 5 days after the close of the proceeding. PLEASE TAKE NOTE that the meaning of close of proceedings in the certification election is not the same as the close of proceeding in the omnibus election code. Q: When is there a close of proceeding in the omnibus election code? When there is already a proclamation. The results are out. Because the proclamation of the results is included in the proceeding of the election. Here, 5 days wala pay proclaimed. So it does not include the results of the canvassing of votes. Rule 9, sec. 13: Canvassing of Votes - The votes shall be counted and tabulated by the election officer in the presence of the representatives of the contending unions. Upon completion of the canvass, the election officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the election officer and the representative of the contending unions and transmitted to the med-arbiter, together with the minutes and results of the election, within 24 hours from the completion of the canvass. Where the election is conducted in more than one region, consolidation of results shall be made within 15 days from the conduct thereof.
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So rule 9, section 13 Canvassing of votes. the votes shall be counted and tabulated by the election officer in the presence of the representatives of the contending unions. Upon completion of the canvass, the election officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the election officer and the representative of the contending unions and transmitted to the med-arbiter, together with the minutes and results of the election, within 24 hours from the completion of the canvass. Where the election is conducted in more than one region, consolidation of results shall be made within 15 days from the conduct thereof. Sometimes it can be longer like PAL. It might take long for the results to come in. it might even take more than 1 election day for some areas like tawi-tawi. Once a week lng ang flight. So those are some circumstances that are beyond the power of those who are charged to fulfil. Rule 9, sec. 14: Conduct of election and canvass of votes - The election precincts shall open and close on the date and time agreed upon during the pre-election conference. The opening and canvass shall proceed immediately after the precincts have closed. Failure of any party or the employer or his/her/their representative to appear during the election proceedings shall be considered a waiver to be present and to question the conduct thereof. Section 14, Conduct of election and canvass of votes the election precincts shall open and close on the date and time agreed upon during the pre-election conference. The opening and canvass shall proceed immediately after the precincts have closed. This is important because if the precinct is not closed, then there is no canvassing. Does the precinct close automatically because everyone has voted? For example, there was 100% turn-out, everyone already voted but the agreed time to close has not yet arrived. If there is only one precinct, then no problem. Pwede na iclose. But if there are two or more precincts, the counting must start simultaneously. Otherwise, if one precinct starts counting ahead, the results might influence the votes to be made in the other precints. So there must be uniformity in the closing and canvassing of votes. Rule 9, sec. 15: Certification of collective bargaining agent -The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five days from the day of the election, provided no protest in recorded in the minutes of the election. Rule 9, sec. 16: Failure of Election Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings. Rule 9, sec. 17: Effect of Failure of Election - A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within 6 months from the date of declaration of failure of election. Now, section 15, Certification of collective bargaining agent the union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five days from the day of the election, provided no protest in recorded in the minutes of the election. So, you have to wait 5 days from the cessation of the voting. But if there is no protest recorded in the minutes, you can proclaim right away because you could know the results right away. There is no more possibility of protest because you are deemed to have waived it if you did not record it in the minutes. Q: Who wins? It is not plurality votes like the elections in the omnibus election code. In a certification election it must be the MAJORITY OF THE VALID VOTES CAST. First, there are the votes cast, this is the big set. A subset of that set is valid votes; another subset is the invalid votes, and another subset which is the stray votes. Remove the invalid and stray votes what remains is the valid votes and that is the basis of who wins. If you get the majority of the valid votes cast, you win. Is that the only condition? No, there is another condition. Section 17, Effect of failure of election A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within 6 months from the date of declaration of failure of election. Q: When is there a failure of election? When less than the majority of the eligible voters cast their votes. For a valid election there must be at least majority of the eligible voters participation. So, if there are less than the eligible voters who participate, there is failure of election. The med arbiter must declare a failure of election. They must schedule another election. Suppose the majority of the eligible voters participated. And there are at least 3 choices, and none of the choices
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receives a majority of the valid votes cast. What is the result? Run off election. Another election is held between the two choices with the highest number of votes. Assuming of course that there was a valid election, at least 3 choices, none of the choices receives a majority of the valid votes cast and the sum total of the votes received by the unions is at least 50% of the valid votes cast. Take a look at Rule 10, Run off election. Q: When is it proper? Rule 10, section 1 when and election which provides for three or more choices results in none of the contending unions receiving a majority of the valid votes cast, and there are no objections or challenges which if sustained can materially alter the results, the election officer shall motu propio conduct a run-off election within 10 days from the close of the elections proceedings between the labor unions receiving the two highest number of votes; provided, that the total number of votes for all contending unions is at least 50% of the number of votes cast. No union shall not be a choice in the run-off election. Notice of run-off election shall be posted by the election officer at least 5 days before the actual date of run-off election. So, those are the conditions of a run-off election. Now, if you are asked are all second elections run-off elections? No, because its not sure because there could have been a failure of election. The first election was no election at all. You cannot say also that the most number of elections can only be two which is the main election and the run-off, no you cannot say that!!! Because there could be an invalid election for lack of participation, and then inconclusive election-the second election, and finally the run-off election. So, those are the requirements. Rule 9, sec. 21: Appeal; finality of decision. the decision of the med-arbiter may be appealed to the secretary within ten days from receipt by the parties of a copy thereof. The appeal shall be under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence. Where no appeal is filed within the ten-day period, the order/decision shall become final and executory and the med-arbiter shall enter this fact into the records of the case. Section 22: Where to appeal the memorandum of appeal shall be filed in the regional office where the petition originated, copy furnished the contending unions and the employer, as the case may be. Within 24 hours from receipts of the appeal, the regional director shall cause the transmittal thereof together with the entire records of the case to the office of the secretary. Section 23: Period to reply a reply to the appeal may be filed by any party to the petition within ten days from receipt of the memorandum of appeal. The reply shall be filed directly with the office of the secretary. Section 24: Decision of the Secretary - the Secretary shall have 15 days from receipt of the entire records of the petition within which to decide the appeal. The decision of the secretary shall become final and executory after 10 days from receipt thereof by the parties. No motion for reconsideration of the decision shall be entertained Section 25: Transmittal of records to the Regional Office within 48 hours from notice of receipt of decision by the parties and finality of the decision, the entire records of the case shall be remanded to the Regional Office of origin for the implementation of the decision of the secretary and shall not be stayed unless restrained by the appropriate court. Now, from section 21-25 of Rule 9, that is about appeal. (page 431 of the codal 2009 version) The proclamation being final can also be appealed. The proclamation is supposed to end the certification proceeding. And because that is final, you can now contest it. Who can contest it? Any of the contending unions can contest it. The ER is not supposed to contest it because he is not a party. Now, if the employer wants to question the results of the certification election, normally what he does is he courses it through one of the contending unions to file the necessary papers because the employer is not a party. Q: What is policy of automatic certification election? It is a policy adopted by the department of labor and the labor code because of the constitutional bias for the exercise of the RTSO. The constitution favors the exercise RTSO because self organization is the only way by which the employees as a party can stand on equal footing with the employer. The employer is united and so the employees should also be united as one to stand on equal footing with capital. That is why the constitution has a bias for the exercise of the RTSO.
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The general bias of the labor code is that petitions for certification of elections as much as possible should be given due course. If the petition is defective it is not dismissed, it is returned to the one filing to complete the requirements. If a petition in an UNORGANIZED establishment is sufficient in form and substance with or without supporting signatures from those embraced in the bargaining unit, it should be given due course. A certification election should be called as a matter of due course. In ORGANIZED establishments, that mean there has been an exclusive bargaining agent, there has been a CBA, filed in the 60 day freedom period timely. If the petition in an organized establishment is duly supported by at least 25% of the employees within that bargaining unit then automatically the PCE should be given due course. The med arbiter has no discretion to deny the petition. Q: Is the 25% signature support to be measured solely from the petitioning union? Or is the med arbiter allowed to count a less than 25% signature support with other signature support of motions to intervene by other unions? Yes, if the cumulative signature support is 25% then the med arbiter has no discretion but to grant the PCE. Now, why 25%? The law considers as a threshold 25% as substantial doubt as to the continuing representation status of the incumbent exclusive bargaining agent. The allegiance of the bargaining unit is already questionable whether it is still with the incumbent. Now, if it is not true that the allegiance has shifted, then the incumbent exclusive bargaining agent should have nothing to worry about and continue with the certification election. Usually, the incumbent will argue that their members did not know what they were signing and then they will present a signature support stating that they still have the allegiance of the members. Q: What is the best remedy? Go on with the certification election! Ngano mahadlok man ka ug imo jud na sila then we will see kung asa ang allegiance, whether it is with the incumbent or with the petitioner. Remember when you cannot file a petition: certification year rule, deadlock bar rule, contract bar rule. There has been a question raised many times. Is a contract of CBA not registered with the department of labor, does it bar a petition for certification? As you would know later a collective bargaining agreement once entered is posted in 2 conspicous place in the workplace and is supposed to be ratified by the bargaining unit. After it is ratified it is supposed to be registered to the department of labor and it is the employer who pays the fee of 1,000pesos regardless of the amount of the CBA. Once registered it is now considered a certified CBA. Now, what if for some reason it has not been registered within 30 days after it has been entered to. Does it bar a PCE? The ruling of the Supreme Court is thisif the CBA provides for substantial benefits and it has been accepted, enforced and has been the law of the parties for a considerable time then that CBA will bar a PCE. Q: How do you know that it is substantial benefits? When it provides for standards higher than what the labor standards provides, above labor standards. If it only gives benefits at par with the labor standards then it will not bar a PCE. If it only gives the same benefits it is called a sweetheart contract, it is a technical term used by the supreme court, it is a specific kind of contract. A sweetheart contract is questionable because why would you enter into a contract which provides benefits already afforded for by the law!? Ngano mag hago2x pa man ka? Provided for by the law na man. The union that signs a sweetheart contract is otherwise called a company union. You are under the thumb of the employer are there any question? (END)
DAY 16 IRR (READ) Section 15 section article 245-A "ART. 245-A. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. - The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union."
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This is a new provision introduced by Republic Act 9481. Is this not a disenfranchisement of a union member without due process of law? This new provision was introduced by Republic Act 9481 in order to overturn the decision of the Supreme Court in Toyota vs Toyota. In that case, the union had some managerial and supervisory employees included the roster. The employer moved to dismiss on the ground that if the roster of membership includes managerial employees who are prohibited in joining unions and they included supervisors who are permitted to exercise the right to self-organization but they must join their own union, then the argument by the management that the one filing is not a union. It is a legitimate labor organization and only a legitimate labor organization can file a certification election. That argument was shutdown by the Med-Arbiter. It was shutdown by the Director of Labor Relations when it was on appeal. HELD: Supreme Court said correct! An organization composed by rank and file and managerial employees is not a union. So the petition for certification election was validly dismissed. Article 245-A sought to prevent that through inclusion and exclusion proceedings. So if a managerial employee is included in the roster of the union, he is automatically out. If it is a managerial employee, no problem because he has no right to self-organization. BUT what happens if he is not. Supposed he is a production worker that is daily paid regularly, who is at the same time, a part-time production worker, a sales man. So he belongs to two kinds of bargaining units with the sales force and with the production. Is he automatically out? The solution, I DO NOT KNOW! Section 16, Ancillary Issues or Subsidiary Issues (READ) This particular provision enunciates the policy of the Bureau of Labor Relations when it comes to certification election petitions, that it abhors interlocutory orders. All issues are settled in the main issue as to whether or not to grant petition for certification election. So the issue whether there is an EE-ER relationship, whether there is registration or registration has been cancelled, etc. all these issues are determined in the over-all issue as to whether or not the order to hold certification election will be granted. (READ) Section 17 The period to appeal is the same as the period for appeal from the Labor Arbiters decision and it must already be a verified memorandum. Memorandum of Appeal 10 days from the period of appeal. Calendar days. It becomes 11 if the last day is a holiday. Where you appeal? It is filed in the regional office of the Department of Labor and within 24 hours from receipt of the appeal, the Regional Director shall cause the transmittal of the records thereof with the entire case to the Office of the Secretary Labor. If there is no appeal within the 10 day period, the Med-Arbiter shall enter the finality of the decision, order in the records of the case and cause the transmittal of the records and petition to the Regional Director. Reply is also 10 days from receipt of the memorandum of appeal. The memorandum of appeal must show proof of service of memorandum of appeal. You serve other parties or the employer if you are the union or to the union if its the employer appealing the order. And from the date that the copy of the memorandum is received by the other party, he has 10 days. This mandate of the Med-Arbiter that he sends a record of memorandum of appeal within 24 hours from receipt of the appeal ? But you are penalized if you do not submit your appeal on time because the Med-Arbiter will normally wait for the reply to the appeal. (READ) Section 22 If it becomes final within 48 hours, the decision of the Secretary becomes final if there is no appeal. From the time it becomes final, the records of the case will be transmitted to the Regional Office for implementation of the decision and this cannot be stayed unless restrained by the appropriate court. Who is the appropriate court? Court of Appeals (READ) Section 24 effect of consent election
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Q: What is a consent election? It is one where the parties agree immediately to hold certification election. In other words, the first part of the hearing is rendered unnecessary because the employer agrees in a description of the bargaining unit. The petitioner is in agreement with the management as to the holding of certification election. All the other intervenors, they do not oppose. Everybody agrees. What do they do? Proceed to the second part - the pre-election conference, the inclusion or exclusion proceedings. That is the only time in a consent election where the description of the bargaining unit from the petition and the order to hold certification election, the description in the bargaining unit and the certification by the MedArbiter that he has won the election which he so obtains the description of the bargaining unit, the three have identical description. In other words, this definition of terms found in Rule I Book V Section 1 (h) (READ) This is a wrong definition. Certification election is ordered by the Department while a consent election is voluntarily agreed upon by the parties with or without intervention by the Department. The parties can just agree without the intervention of the Department and it is a consent election. That is incorrect. The correct definition is in Section 24. There is a petition that is filed and the parties do not disagree with the appropriate bargaining unit and its parameters and they consent with the holding of the certification election. The moment it is consent, the Med-Arbiter appropriates the agreement to itself and makes that the decision. So the first part is rendered unnecessary. (READ) Section 25 Effects of early agreement This is for purposes of 60-day freedom period. Q: What is another term for incumbent exclusive bargaining agent in relation to certification election? FORCED INTERVENOR kay naa may laing mofile ug certification election. Dili mana xa mofile ug certification election, llamado na gud xa. If the 60-day freedom period expires after 60 days without petition for certification election, his status as exclusive bargaining agent is renewed. There is no more any petition that is allowed to be entertained covering for that same bargaining unit in an organized establishment.If during that period 60 days, the incumbent has entered into a CBA to renew the expiring one and they concluded that with the management during the 60 day freedom period and they register that with the Department of Labor. Q: CAN THAT CBA BAR A PETITION FOR CERTIFICATION ELECTION? NO! So during the 60 day freedom period, a petition for certification election cannot be denied on the basis of the contract-bar rule. Remember, in section 25, there are talking about 2 CBAs. 1. Existing one on its last 60 days, a dying CBA. During the 60 - day freedom period, the contract bar rule does not apply. Namely that existing collective bargaining agreement does not bar a petition for certification election.
2. During the 60-day freedom period, the incumbent enters with management in a CBA. They register it with the
Department of Labor. Can that 2nd CBA bar the petition for certification election? NO. The right to self-organization freedom period of 60 days is a period to the existing contract and to a succeeding contract that is concluded every year. So no certification election can be barred during the 60-day freedom period on the basis of the contract bar rule. Three times you cannot file a certification election 1. Certification year rule - Within one year from and after the results of certification election are announced, you cannot a petition for certification election, whether the place is organized or unorganized. 2. Dead lock bar rule - For as long as there is a dead lock between the management and union that is already the exclusive bargaining agent, there is no agreement, they are not moving anymore, there can be no petition for certification election. 3. Contract bar rule - GR: For as long as there is an existing CBA, no petition for certification election covering the same appropriate bargaining unit can be entertained. - Exception: 60 day freedom period
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RULE IX SECTION 1 RAFFLE OF THE CASE (READ)PROVISION SEC 1, 2, So if there is a disagreement between the payroll, records as of the time of the filing that will prevail. (?) If you are absent during the pre-election conference, you waived your right to be heard. (READ) minutes of the pre-election conference (READ) Preparation of the ballots. (READ) section 8 The ballots are constructed for illiterates. (READ) section 9 marking of votes This is a wrong title. Unsa man diay na, tikasan na nimo daan, markahan na nimo. How you vote! Unlike voting in the comelec, you write the names, nganhi eksan or tsekan ra na. When in doubt, chekan tanan @_@ kidding aside, check one box otherwise strayed vote. What happens to challenged votes? (READ) Section 5 qualifications of voters Rule IX All employees who are members of the appropriate bargaining unit xxx that is a mistake. You are not a member of the bargaining unit. You are a member of the union. You are a member of an exclusive bargaining agent. But a bargaining unit is not an organization, so you cannot be a member. You are either included or not included. The union is an organization, so you talk about members and non-members. 1st par Bisan natangtang kana, as long as your dismissal is under contention. Next par So when in doubt, youre not allowed to vote. Your vote is segregated. You know exactly how many are contested. At the end of the election, in the canvassing of the ballots, if the lead of the winner is so big that even if you count the votes that had been segregated against it, are not enough to compensate for the lead. Then, no need to open. Thats why it is segregated. If it matters, then, it will be contained in the decision of the Med-Arbiter proclaiming the results of the election. (JLC) Note: for the provisions, read the codal na lang Cant find it in the net=) sorry^^ Labor is reactive. Capital or management is proactive. You can never produce until capital is there. The only one who can produce without capital is God himself Fr. Gus DAY 17 Example can you get married through an agent. Your bride is here in the Philippines and you are in the US, you are already bedridden. But you think you can still get married. Is age a limitation? It is a qualification,a certain minimum age of an employee, isnt it not? [father talked about child marriages] Can you that, you cannot? Why there is no agency of such an act. You will let someone else do your marital obligations. The moment there is an exclusive bargaining agent for a particular bargaining unit. Not even the employees of that unit can take back their right to negotiate for terms and conditions of work excluding the exclusive bargaining unit. Only in extraordinary circumstances which you will later on see. But it is to the exclusion of all unions of the world and it is to the exclusion even to the principals. That is a contrivance of law which the socialist thinking is for a greater good and the greater good is the union of the employees. To make them strong they are one. They will determine and bargain with the employer who is also bond, who has also organize itself as one. To put it in equal footing in negotiating terms and conditions of work. [Right to Work Laws. Now, I told you there is a movement and principally it began in the US. And now it soon creep into Europe. That it will not allow the exclusive bargain agents to exclude the principals themselves. It will exclude the other unions but not the principals, the employees themselves. I f an employee does not want to, not even the decision of the entire bargaining unit will prevent them from bargaining for themselves.] What is the net result? Is,there is no union that can survive. So the
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union can only survive by the law of the state. The laws of the state. You see Tenessee, Lousiana, Texas, New Orleans, Florida those are where the (national industries are?). Because there is no such thing as exclusive bargaining agent. So you have, certification election. Now, the next terminology we have to look at is consent election. It is also found Book V, Section 1, subsubparagraph letter h. Rule 1 book V section sub para. (h), (h) Certificate Election or Consent Election refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for the purposes of collective bargaining bargaining or negotiation. A certification election is ordered by the Department, while a consent election is vouluntarily agreed upon by the parties, with or without the intervention by the Department. That is erroneous. Consent election is a certification election, agreed upon by the parties and subsequently mad part and parcel of the order of the med-arbiter who conducted the certification election. Because if no intervention at all by the Dept. f Labor., Then it is a Voluntary Recognition. Then there is (certification?) There is no intervention at all. What happens is the first issue is agreed upon by the parties as to the appropriateness of the bargaining unit. After the new rules now, the employer can no longer opposed the certification of election because he is not a party to it. Why he is not a party because he does not decide whether he has a part to play or whether or not the employees should have representation. Its interest is limited to the appropriateness of the bargaining unit. That is its interest. He manifest his interest by a motion,--- a manifestation. Now, if there is an agreement as to the appropriateness of a bargaining unit. He cannot oppose an election. If the petitioner, he has no choice but to agree because he proposed it. The intervenors union, they can propose an amendment in a motion to intervene. If everybody is in agreement then the next issue is when would they hold the certification of election. We know much what the court does when the two parties to a litigation enter into a compromise agreement. It is co-opted by the court; Q: What is the purpose that the court still makes an order? Because if one of the parties refused to do its part, according to a compromise agreement, then it can be executed. The agreed party can file a motion for execution for the compromised judgment. Kung nagkasabot namo, ngano niadto pa mo sa korte naa silay giawayan. [father gave an example sa buyer of a land na wala nagbayad sa balance, sa the aggrieved party goes to the court on a sum of money based on a contract. Supposed the two agreed last chance one more month mangita ka ug kwarta para makabayad.. then the two parties mad a joint manifestation entering into a compromise. Naa bay court na mag-ingun na buang2x mo duha you are wasting my time. The court would say: pagdali pagcompromise na, pag agree namo.. tapos nagpagawas na ang court of order ]. Mao ning pasabot sa consent election. Kinin wala man ni consent nag unsa lang man ang duha? Confused. They do not know their labor relation. So agreed upon by the parties and adopted by the med-arbiter as its order. What is the danger to that? There is a group of workers they belong to the bargaining unit and they will exclude some of the workers. Ingun sila: ayaw na na sila paapila, hapit na sila mag-retire. What is the remedy of these workers who are excluded? They come in agreement ba, Department of Labor does not need to intervene. What is their remedy? None. A run-off election is a valid election, where there are atl east three choices none of which garners the majority of the valid votes cast and the total number of votes for the unions is at least 50% of the votes cast, so that a second election is to be held between the two choices that garnered the number of votes. Certification of election is valid if at least the majority of the eligible voters has voted. Q: What is the majority? 50% of the eligible voters of the bargaining unit. So if that is the case, is it in all instances that it is the choice of the majority of the bargaining unit. No. the requirement of the law is the choice of the bargaining unit cannot be less than of the bargaining unit eligible voters plus one. Let us say, you have a bargaining unit that has 100 employees eligible to vote. To have a valid certification election, you need 50 plus 1 to vote. 51 votes. To win, assuming that at least 50 plus 1 votes are valid. You will just need 27 votes. 27 compared to 100 is approximately . So it is not technically mathematically true that the union is the representative of the majority of the bargaining unit. You can represent the bargaining unit to the exclusion of all others including the warm bodies of the workers that make up the bargaining unit. Even you have only have a little over the 1/4th of the votes of the bargaining unit. You can declare a
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strike even you only have 1/4th. Now they do not know. The Labor Relations does not consider it iniquitous. Why? For the higher value of getting the worker, united as one, to speak in one voice vsi-a-vis the management, which is already united. Whether you are a partnership, or a corporation you are united and only have one voice. To stand up against that voice, the law sacrifices certain liberties. Who decided it? Our fathers in the Constitution who gave social justice thrust in our Constitution. Run-off election has to be distinguished from an invalid certificate of election/ no certificate of election. If less than 50% of the majority of the eligible voters of the bargaining unit cast their ballots in the certification election. Less than the majority. What is that? It is No Certification Election. Even all parties agreed to the date of the election. What is the biased of the date? IRR says it must be a working day. Although with the agreement of the parties the Med-arbiter can allow for the voting to be conducted in a non-working day. That is the exception. Why is it in a working day? Because it is assumed that people will be present in a working day. That is why? The biased is for making the certification election day a working day. Now, even everyone voted but the counting of the ballot is less than the majority of the votes cast. Less than the majority of the voters participating in the election that is an invalid election. So there will be another election that will be called true certification election that is not a run-off election. Next terminology Referendum. To understand referendum read Latex vs. Eduvala Bala 79 srca 88(1977). Then also read Benguet Consolidate Inc. Employees Union vs. Benguet Consolidated Inc. 23 Scra 465 (1960). Read Pambansang Kapatiran vs. Secretary 253 SCRA 96 (1996). Now this is what happens, I told you that once there has been a valid election and the union has garnered the majority of the valid votes cast. The union has been certified as the exclusive bargaining agent, then assuming that it concludes the bargaining unit. For the next 5 years it is exclusive against the whole world even against the principal themselves who are the employees. Q: Is there an exception and the exception is this? When there is a schism. You will that in Eduvala and Benguet when a vast majority withdraws their allegiance from the union. Sometimes it is clear already when the union has disappeared. Sometimes there are very corrupt unions. They will tell management to advance their union dues for five years. Why would a union do that, probably he has a bigger target, he wants to capitalize in a campaign for another work force who has a number of thousands and you will need money for that(and so on). When the unions are abandoned, what would the workers do? Who will represent them in their grievance? There are many provisions in the CBA that has not been complied with. What will they do? They will disaffiliate from the union. If there is a schism, overwhelming majority. (Then father gave the history of the word schism.) So when the entire bargaining unit, overwhelming majority disaffiliates from the federation and chooses to affiliate with another federation during the five year period of the CBA outside the 60 day freedom period then it is valid. Now if the Department of Labor is in doubt whether or not there is a massive disaffiliation. What will it do? It will conduct a referendum. That is what they did in Eduvala. Gipaboto nila and sure enough in Edu Bala they voted overwhelmingly to switch the exclusive bargaining agent. Then Benguet says, what happens schism is the application of the substitionary doctrine. In other words, the new mother union of the local to whom you will affiliate. Merely substitutes, take the place, takes the shoes of the old exclusive bargaining agent. It is not a new certification election because he is not free to enter into a new CBA. He just takes the place of the old Collective Bargaining Agent. He administers the same CBA. He can negotiate to shorten it but the management can stand by its prerogative under the old CBA. It can refuse to shorten it. The only difference is that the new collective bargaining agent is not bound of the personal obligation of the CBA. Personal obligation finding upon the exclusive bargaining agent signatory to the CBA. What are those? No strike clause. Etc. We will take it up in collective bargaining agreement but that is the result. Valid referendum will give rise to the substitutionary doctrine under the Benguet case. Now Pambansang Kapatiran will give you a case that a SC did not consider it a schism and so the substitutionary doctrine was not applied. Now, the last terminology is certification election. I give you the case of AirPhil Flight Attendant Association vs. AirPhilippines: why this is not a decertification election. SC is in error here, it is not a decertification election. Where is there a decertification election you read again LVN vs. Musicians Guild. And distinguish decertification election from proceedings cancelling registration of a union. When the union itself votes to cancel its registration. That is a form of decertification election. The result will be there will be no more union that will administer the CBA. Because in the (meeting?) of the union
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members 2/3 to cancel its registration that is provided for RA 9481 an amendment of the Labor Code. Why it is not a decertification election?
DAY 18 COLLECTIVE BARGAININGcollective bargaining follows the certification election. Its good for you to review your basic principles in contracts. There are many principles in contracts that are not exactly followed in collective bargaining. You remember the principles of contracts. First you have the principle of autonomy. Parties are free to whether or not enter into contracts. What is more they are free to stipulate such terms and conditions of the contract that are agreeable to the parties for as long as those terms and conditions are not contrary to law, good customs, and morals. Then there is the principle of consensuality. Contracts are perfected by mere consent, unless the law provides for a specific form. Like contracts that bind real property must be in a public instrument with the participation of a notary public. If it is not notarized, it does not bind the real property. Contract of sale of real property that is just written at the back of a cigarette wrapper because it was signed in the casinothen that is not valid. That why those who lend money in the casino, they are ready with the forms. You just fill in the forms. Notice in the casino there are constant patrons, you think they are gambling? NO! They are hovering like albatross waiting for victims. They have all kinds of prepared contracts especially sale of real property. And they have access to notary publics that can be waken up even in the wee hours of the morning. The moment you sign, thats the end! Your car also requires notarial form. Constructive delivery by giving the key is not sufficient because a form is required by the law. Now, you must understand that an ER-EE contract does not require a form. BUT a collective bargaining agreement requires notorial form. Q: Is a collective bargaining agreement an ER-EE contract? Yes it is! That is what many commentators. In fact, a collective bargaining agreement cannot be entered into unless it takes the place of an ER-EE contract. The CBA is not created in a vacuum. It does not start ab ovo. What is the meaning of ab ovo? From the egg. (from the beginning) Trail ab ovo you have to start the trial ab ovo. Which is different from trial de novo, which means you start the trial again. Whats an example? If there is an amendment in the information, in order to uprise properly the accused so that the constitutional requirement of being informed of the charges against him is complied with. You start again from the beginning. What is the beginning of a trial? That you have read the information, precisely for you to be informed. If there is an amendment in the information then there is a need for trial de novo. AB OVO means you start it from zero. Even if you have proven any evidence in the preliminary investigation, that does not count. You start from zero again! Why? Because the court did not have jurisdiction. Now, if you have CBA, you can be sure that there was before it an ER-EE relationship. How many contracts does the CBA replace? As many contracts as there are employees covered by the CBA. That is why it is called collective. Gi himung isa ra ang daghan kaayong kasabutan. Supposed this is a workplace, you are all employees. How many ER-EE contracts are there? As many employees as there are. Now, after the ER-EE individual contracts have been substituted, it is now CBA, how many contracts are left? Just one! The CBA. What happens to the individual contracts? Is it not held to supplement the CBA? No, it is completely replaced. Can you invoke the individual agreements you had with the management? No, there is only one agreement now and that is the CBA. Supposed I like my individual contract very much, I am against this CBA. Dont I not have freedom of contract to stick with my individual contract? YOU DO NOT HAVE AUTONOMY OF CONTRACT! The principle of autonomy of contract does enter, in fact is suppressed and denied by labor relations law represented by book 5 of the labor code. You have no freedom to contract. Principle of mutuality. What is this principle in contracts? Contracts are binding mutually, equally between the parties... And only the parties. Those who are not privy to the contract are not bound by the contract. The exception is if the contract provides for a clause known as pour autrui. There is a 3rd party beneficiary. Of course, the beneficiary must give his/her consent before the death of any of the parties otherwise the beneficiary is not privy to the contract. The principle of benefit pour autrui.
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Now, we go to the collective bargaining agreement. Who signs the CBA? The employer or his representative. Normally the employer is not a natural person. Its either partnership or most likely it is a corporation. If it is a corporation, then the corporation passes a resolution designating let us say the president or the officer designated by the by laws to represent the corporation to enter into contracts to sign the contract. Unless there is that resolution, the president enters the CBA contract without authority, he acts ultra vires, beyond his powers. Now, the union signs for and in behalf of the employees that are in the bargaining unit. Q: Who performs the obligation if the CBA? Is it the union? No, it is not the union. It is the warm living bodies of the employees. They are the ones who show up to work and put in their time. Who gets the benefits? The benefits are gotten by the workers. They are the ones who get paid. Are they signatories? No, they are not signatories. Does the agreement say that they are representing the workers? No, it does not say. It just says that this is the appropriate bargaining unit. Why dont they mention the members? Because the members can be fluidone day a recruiter from Saudi Arabia will come and 95% percent of the workers would pack up and go and there would be new set of workers. Is the CBA still valid? Yes, because it was signed by the union. So, that is an exception of the principle of mutuality. So, certain principles in contracts are not clearly followed. There are exceptions. And be sure you know the exceptions, because if you do not know then mabuang ka. Its either you dont know your civil law or you do not know your labor law. Because the employee can enter into other contracts with the employer and it is not necessarily and employer-employee contract. For example, muadto and employee sa employer mu ingon siya mangayo ko ug cash advance. What is that? That is a contract of mutuum. That is a contract o loan. And the Supreme Court has already ruled that the labor arbiter has no jurisdiction over that kind of contract. That is a civil law contract. Now, here is the employer entering into contract with the union on the terms and conditions of work. It called a CBA. The employer is called a proactive party, the union and the employees are called merely reactive parties. So what is the meaning of that? The employer has what is called managerial prerogatives. We already saw that in labor standards, more properly in termination law. Because the ER, being the owner of the enterprise has the right to promote, reassign, reschedule, transfer, for as long as he does not violate the labor code. Why does he have the right to do that? Because he is the owner. So what if he is the owner? Because ownership is not one right but a bundle of rights! You have jus possidendi, jus fruendi, jus utendi, jus abutendi, jus disponendi. Jus possidendi, the right to posses. Ug kawaton imong kabaw? Gukdon nimo ang kawatan kay imuha man na dili na iyaha wala siyay right to posses. Ug snatchon imong bag, human gikuha nimog balik ang bag, human pag-ilog nimo sa imong bag na tumba siya kay mas kusgan man ka sa iya human na igo iyang ulo sa cemento. What is your liability? You are doing something lawful! Retaining possession of your property. If something happened to him then you are not criminally liable. That is one of the exempting circumstances. To bad his head hit the pavement; to bad he suffered a concussion. But you were in the course of performing something lawful. The employer has that right because he owns the enterprise. He has the right to direct the business therefore he has the right to schedule the work. Now, we go back to civil law. What is the right of the employee? The right of the EE is what is in the labor code and what is in the CBA. The employer must, in the exercise of his rights of ownership must not transgress any of the rights in the labor code and the CBA. So you see, what is the net result of that kind of relationship? The net result is, that is only true in CBA, there is no such thing as breach of collective bargaining agreement there is only grievance! Management will always act first and if it is according to law and contract, the employee must accept it. But if his rights are transgressed, then he has a reason to complain, he has a grievance. Q: Does management ever have a grievance? No! Management will act to relieve himself to assert his right. There is no such thing as breach of collective bargaining agreement. BREACH OF CONTRACT IS ONLY IN CIVIL LAW. IN LABOR LAWS, THERE IS NO SUCH THING AS BREACH OF CONTRACT. If you ever say that, I tell you, as night follows day, you will fail the course. That means that you are in gross ignorance. You do not know what the real status of the parties. You do not know that the employer is a proactive party.
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Example, naay CBA. Late and trabahante. Mu ingon ang management na naa koy grievance kay cge kag ka late. Mu ingon ba ang management ana? Dili!!! Management will say na I am the owner of the this establishment! Suspendido ka kay ka upat na ka na late, alkansi na ko kay imong trabaho na byaan! Karon ang empleyado na ang mu ingon na kana imong pag suspendi nako dili na subay sa labor code or dili na subay sa CBA. Mao naa koy mulo, naa koy grievance! Kay wala nimo gipa tuman ang sabot nato. So, that is why you will realize that an employer will never begin collective bargaining negotiations. Without that CBA, there will only be individual contracts. And those individual contracts are largely contracts of adhesion. Ang management lang ang nag prepare. The other party is just left with the choice of accepting it or leaving it. When the CBA comes around thats no longer contracts of adhesion, its already negotiation. Now tell me, what employer prefers that as to contracts of adhesion or individual contracts? So, even after there has been a certification election, even after there is a certification that this union is now the exclusive bargaining representative of this bargaining unit, di mataranta ang employer kay kinahanglan na niya mag negotiate. So, because of that, again this peculiar to a CBA ha, the right to collective bargaining agreement is always asserted by the union or the employees. And on the part of the employer, it is the duty to enter to collective bargaining agreement that is often cited. In the very least, the ER is concerned as to when the duty to bargain arises. In the very least, the union and the employees are concerned with when the right to collective bargaining arises. So thats the first thing as to the rights involved in collective bargaining.
Article 242. Rights of legitimate labor organizations. - A legitimate labor organization shall have the right: "(a) To act as the representative of its members for the purpose of collective bargaining; "(b) To be certified as the exclusive representative of all the employees in an appropriate collective bargaining unit for purposes of collective bargaining; "(c) To be furnished by the employer, upon written request, with his annual audited financial statements, including the balance sheet and the profit and loss statement, within thirty (30) calendar days from the date of receipt of the request, after the union has been duly recognized by the employer or certified as the sole and exclusive bargaining representative of the employees in the bargaining unit, or within sixty (60) calendar days before, or during the collective bargaining negotiation. "(d) To own property, real or personal, for the use and benefit of the labor organization and its members; "(e) To sue and be sued in its registered name; and "(f) To undertake all other activities designed to benefit the organization and its members, including cooperative, housing welfare and other projects not contrary to law. "Notwithstanding any provision of a general or special law to the contrary, the income, and the properties of legitimate labor organizations, including grants, endowments, gifts, donations and contributions they may receive from fraternal and similar organizations, local or foreign, which are actually, directly and exclusively used for their lawful purposes, shall be free from taxes, duties and other assessments. The exemptions provided herein may be withdrawn only by a special law expressly repealing this provision." Q: When do you think the right to collective bargaining arises? The moment the decision declaring the exclusive bargaining agent, certifying the exclusive bargaining agent has become finalis that the beginning of the right to bargain collectively? The landmark case that you have to read is KIOK LOY vs NLRC 141 scra 185. Now, kiok loy, I have begin to believe, was repealed by RA. 6715 (Herrera-veloso law) which became effective march 1989. Kiok Loy was at 1986. RA 6715, provides in Art. 242 that one of the rights of a legitimate labor
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organization actually an exclusive bargaining agent is to demand from management, at anytime after it has been declared the exclusive bargaining agent, updates of the latest audited financial statements. But then in the latest case of GENERAL MILLING vs CA, the Supreme Court reiterated the kiok loy doctrine. The kiok loy doctrine says: The duty to bargain arises on the part of management after 3 requisites are complied with. 1.) Majority representation from the part of the union of the particular bargaining unit. 2.) Proof of majority representation status 3.) Submission to management of his written demands or proposals for bargaining in accordance to article 250 of the labor code. ARTICLE 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining: (a) When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; (b) Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. (c) If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; (d) During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and (e) The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. (As amended by Section 20, Republic Act No. 6715, March 21, 1989). The moment you have those 3 requisites, then the duty on the part of management begins. Now, why did I say that article 242 amended that? Because 242 gives a new right to the certified exclusive bargaining agent that he can demand from the management, copies of the latest audited financial statements. You know, the failure of the duty to bargain collectively, what is the result? In this case of kiok loy, the union presented bargaining proposals to management. The management did not acknowledge receipt. Management did not give an answer. Article 250 says, within 10 days from receipt of the bargaining proposal, the other party must give counter proposal. Now, after the counter proposal, then the other party will now propose a schedule of negotiation of the proposal and the counter proposal. Now, that is already the beginning. Now, kiok loy never answered. What was the result? The DOLE declared the bargaining proposals as the terms and conditions of the CBA. Naa kay duty na tubagon nimopero wa man nimo tubaga eh di ang proposal na ang himoong agreement. Now, you see, that negates the principle that contracts arises from consent. In the United States, that will never happen. This is a major departure from US legislation on collective bargaining. You will only be fined or penalized but never will they make a bargaining proposal the terms and conditions of a CBA. It is only in the landmark case of justice cuevas! Contrary to the basic principles of contracts. Actually, Cuevas only affirmed the decision of DOLE. Why did he affirm it? He said that seeing that the proposals are reasonable, therefore, the DOLE did not exceed its authority, did not act with grave abuse of discretion. This is the kiok loy case which was reiterated in the general milling case. (Father discussed about general milling, flour supplier) the end!
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Day 19 We are in collective bargaining and there are 3 distinctive phases in the so called bargaining process. 1) Negotiation phase 2) Administration phase 3) Subsequent re-negotiation phase The supreme court in Republic Savings Bank vs. CIR (1 SCRA 226) ruled collective bargaining does not end with a collective bargaining agreement. Bargaining, hangyo-hangyo, kung naa nay kasabutan, wala nay hangyo-hangyo. But in collective bargaining, even if there is already an agreement, there is still a collective bargaining. So when you adjust grievances because of controversies arising from the collective bargaining agreement that is still part of collective bargaining. So when there is already a collective bargaining agreement, in administering the contract, there is still a duty to bargain you make to adjust grievances. Also in the re-negotiation phase, there is still collective bargaining. What is the difference between these 3 phases? Do they have different duty and content? YES Let us go to them one by one. NEGOTIATION PHASE The duty to bargain collectively is enunciated in Article 257, LC Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. 3 positive duties: 1) to meet and convene promptly and expeditiously - This is the first duty and easiest to determine whether you are complying. You have agreed to meet at 8 oclock, if you were not there, you did not meet and convene promptly and expeditiously. This is behavioural. 2) To meet in good faith More difficult to determine because it is not readily evident. - How do you know that somebody is in good faith? It is presumed and upon the party who affirms the contrary holds the burden of proof. If he comes at 8 oclock, he comes promptly and expeditiously and it is presumed he meets in good faith. - Example of bad faith bargaining: Divine World University of Tacloban vs Secretary o There was certification election. The union of regular faculty members of the university, the independent union was chosen by the bargaining unit. Majority of the valid votes cast chose the independent union. Shortly after it was declared as the exclusive bargaining agent by the Med - Arbiter, the president of the union recorded the written petitions/proposals for collective bargaining an handed it over to the university administration. Three months passed and there was no response. The president of the union died and subsequently, the VP withdrew the bargaining proposals. Three years passed and there was a second submission of bargaining proposals. This time it was submitted by the officers of the ALU federation. A week later, management was there, ready to bargain. BUT the union filed a petition for certification election. HELD: this is bad faith. They act for bargaining negotiation and yet they do something which negated that. They filed a petition for certification election. When ALU presented a bargaining proposal, management could have
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easily said, I do not owe you. You were not the one elected; it was the independent union of the faculty. Independent union must be affiliated with ALU. But ALU was not elected. So management could have said, Im sorry. But the trouble is, management recognized them. Another kind of bad faith bargaining: SURFACE BARGAINING o Bradman Company vs CIR (78 SCRA 10)
o Parties are always there, always on time, they meet BUT there is no agreement. Sige lang silag tagbo.
Pero walay agi. On the surface they are bargaining, but on the actual pact, there is no collective bargaining. WHY? No agreement! Another bad faith bargaining: BOULWARE BARGAINING o In General Electric, the union submitted bargaining proposals, management drew up its bargaining proposals in answer to the proposals of the union. Management went on a very extensive media campaign to show that the counter-proposals of management was the best possible deal that the union and those of the bargaining unit could have. They did that to pressure the union and agree to the management proposal. So the union filed an action for unfair labor practice. HELD: US Supreme Court said, this is bad faith bargaining. The law says, management must negotiate with the union, nobody else. The act of management in negotiating through other people constituted bad faith bargaining. o So if management sits down with somebody else, other than the representative of the union, that is bad faith bargaining.
Under 212 (j) , LC "Bargaining representative" means a legitimate labor organization whether or not employed by the employer. This is separate and distinct from the exclusive bargaining agent, book V rule I section 1 (t) Exclusive bargaining representative So exclusive bargaining representative is a legitimate labor union. Actually what they meant here is a legitimate labor organization not yet a union. According to Fr. Gus=), the definition of a bargaining representative in Article 212 (j) of the Labor Code, is a wrong definition. How can an employer employ a union when it is not a juridical person? An employer is a person, not an individual. What is the correct definition of bargaining representative? "Bargaining Representative" means a legitimate labor organization or any duly authorized officer or agent of such organization whether or not employed by the employer. So bargaining representative can mean: 1. the labor organization; or 2. any officer of such organization whether or not employed by the employer So, the representative is the exclusive bargaining agent as defined in book V rule I section 1 (t). My point is a petition has to be made. The union is the exclusive bargaining representative or agent. It is chosen. But if it is a juridical person, it cannot walk down the aisle and sit in the bargaining table. It is recognized in law as a person. It can represent those in the bargaining unit. BUT in order to act, it needs natural person to act, warm bodies. Who is that warm body? It is the bargaining representative. That warm body is the one who sits and bargains with the representative of management. - Another kind of bad faith bargaining:
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Nestle vs Filipro, reiterated in Nestle vs CA. Nestle said, we are granting you members of the bargaining unit, very generous retirement benefit. This retirement benefits are non-contributory and you will get this at the age of 55 or after 20 years of service, whichever comes sooner. In LC, 60 is the age of retirement. Union said, Ibutang na ninyo sa agreement. That is a mandatory subject of agreement because it is part of the terms and conditions of work. But nestle said, kami man maghatag ana. Wala moy labot. Union said, that is part of collective bargaining, you have to bargain with it. HELD: retirement benefits are mandatory subject to bargain. But nestle, though did not obey the ruling of the SC, was not held in contempt. Why? They are bargaining not to bargain. The stand not to bargain with respect to the retirement benefits is legitimate. The only bad faith that constitutes in the bargain is not to say anything, but if you keep saying that you should not bargain and put reasons why you should not bargain, you are actually bargaining.(JLC)
God has His hand on you so dont live life in fear. Day 20 Art. 250 Procedure in collective bargainingThe following procedures shall be observed in collective bargaining: a) When party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice; b) Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of the request; c) If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call; d) During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes; and e) The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to voluntary arbitrator. (As amended by Sec. 20, RA No. 6715, March 21, 1989) 252. Meaning of Duty to Bargain CollectivelyThe duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievance or questions arising under such agreement and executing a contract incorporating such agreements if requested by other party but such duty does not compel any party to agree to a proposal or to make any concession. Yesterday, we took up the first phase of bargaining which is the negotiation phase. And we said that the duty to bargain during the negotiation phase is to meet promptly and expeditiously in good faith in order to include the terms and conditions of work, rates of pay, hours of work to conclude the CBA but according to 252 that obligation does not include the obligation to make any concession or to agree to any proposal. Now, the said several examples of bad faith bargaining, example of not performing meeting and convening promptly and expeditiously is the case of Kiok Loi. Complete refusal did not even bother to write a counter refusal . What was the finding: the proposals are decreed by the NLRC as terms and conditions of the agreement. It became the CBA. According to the SC: since the proposal are reasonable then the NLRC is not in excess of its jurisdiction in decreeing that the proposals become the terms of the CBA. I told you this is unprecedented.
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You know that in your obligations and contracts. There is a remedy called the reformation of contracts. When is that resulted? When two parties arrive at an agreement but they are not sure of what they agreed upon. So they asked the court to determine what is it exactly that they agreed upon. That is the reformation of contracts. Here actually there is actually no agreement. Kiok Loijust s imply refused to acknowledge the receipt of the proposals. Under Art. 250 Kiok Loi should have made counter proposals within ten days from receipt of proposal. They did not even do that. They did not even acknowledge receipt of proposal. So the SC says those proposals that are submitted are now the terms and condition of the CBA. Now to me, it defies simple logic and but even all the cannons of contracts. That is why there is no decision in the US. that is the source of our laws. We just copied. CBA is just copied. I thought that Kiok Loi is a wild cavaricion of jurisprudence that will soon disappear. But it has been reiterated lately in the case of Gen Millings vs. CA, it is not a ground lost it is the proper jurisprudence that has to be followed. If an employer refuses to bargain then there is a controversy, the NLRC has the jurisdiction to determine WON the proposals are reasonable and when it is reasonable the SC said: that the NLRC is within its jurisdiction to declare proposals themselves become the agreement. It is an extreme. So, Kiok Loi reiterated in the General Foods and the General Foods and the General Milling Case is important because there the SC delineates the many instances where there is an obligation to collective bargaining. The provisions of the collective bargaining are delineated in the General Milling case. Now, the second kind of bargaining in bad faith is the case of Divine Word University of Tacloban vs. NLRC. Bad faith bargaining because the employer sits down, actually meeting the first duty of promptly and expeditiously sat down and yet at the same time they filed a petition for certification election. So the Sc said: As the Indians would say, they speak with a (fork-thumb). They undergo negotiation and at the same time they are asking the Bureau of Labor Relations-med-arbiter to issue an order of certificate of election in the bargaining unit. How can you be negotiating and then you ask the BLR to determine with whom you should negotiate. Bad faith bargaining. The third bad faith bargaining is what I told you, Braggman Company vs. CIR. Surface bargaining. You just keep on meeting but there is no agreement that happens. So you are bargaining on the surface. Youread that case because the SC is quoted: says this old system of collective bargaining is the full compelling force of the law, brings the parties together at the bargaining table. But in the last analysis they must come to an agreement . And then you switches to the metaphor. You can bring the horse to the bank of the river push the horse down so that it will be close to the water. But in the end it is the horse which will drink the water. Nobody else could drink the water for the horse. That is an old arab metaphor. The duty to baragin does not include the duty to come to an agreement to come into a proposal or to make any concession. What Is the obligation to sit in the table and bargain. What Is the compelling force of bargaining because the employer needs the cooperation of the employee to get his operation going. So it should be (?)in arriving to the terms and conditions by which (15: 09). Nobody can force him to enter into an agreement. Pareha bana sa arranged marriages (and so on). Many times you can arrange marriage but in the end. The two people must give their consent because after all. It is they that were living together. So that is we SC points out the heart of the system of bargaining. So read Bragman 78 Scra 10, (1977). The next kind of bad faith bargaining is Bolwerism(?). Who decided to come into agreement with the union through the workers and their families. The SC says: that it is wrong you come into an agreement with the workers only through the bargaining representative not anybody else. That is dictated by the law. Then you have the 6th kind of bargaining. Recently pronounced by the SC in the celebareted case of Union of Filipino Fil-Pro Empls Drug food-KMU vs. Nestle Phil. 574 SCRA 323 March 3, 2008. This is the ruling of the SC:an employers steadfast insistence to a particular substantive provision is no different from a bargaining representatives perseverance to include one that they deemed of absolute necessity. An adamant insistence of a bargaining position to the point where the negotiaition reached an impasse does not establish bad faith. The duty to bargain does not include the duty to make a concession or to agree to any conditions.
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It is but natural that at negotiations that management and labor adopt positions and make demands and offer proposals and counterproposals. On the account of the importance of the economic issue proposed by KMU, Nestle could have refused to bargain with former, but it did not. And the management firms stand in the issue of the retirement plan did not mean that it was bargaining in bad faith. It had the right to insist on its position to point of stalemate. Ngano ang Nestle dili man jud musugot. You know Nestle had 13 plans all over the Philippines and KMU has 1. Nestle had finished bargaining with the 12, the 12 had already accepted the retirement plan. And here comes KMU, we recuperate. Nestle: dili na mi, human nana we are giving more generous retirement package. Is there a way by which the law saying that unreasonable demands should not be tolerated when there is a compulsory agreement? If the proposal and demand is unreasonable does it nullify the bargaining negotiation. It will not nullify. Why? Because at any one time, the big bricks of labor that the labor now enjoys. [minimum working hours, night shift differentials.]They used to be impossible demands. If you will lable it as impossible. Then you make it impossible for the working man to improve his life. What may be impossible today may not be impossible tomorrow. [Father relayed the work in the oil riggs.] Can a negotiating panel, either the management or the labor object to the membership of the negotiating panel of the opposite party? Muingun xa na: nganong nagdala pa man ka ug kangang abogadoha , malangay ta ana. Mao ran a ang nagadala ug tigaw dinhi, dili dayon ta conclude sa agreement. Dili mi mulingkod kung naa na xa. Can you do that? If you bargain that way, saying take it or leave it. Then it is refusal to bargain, but when you bargain like nestle. Ayaw nalang na siya, sige jud ug sulti ayaw nalang na buhata na take it or leave it. Then it is still a valid because the duty to bargain does not include the duty to agree on any proposal or to make any negotiation. Now, suppose the union insist on something that is not terms and conditions of work. Example the union insists that should the owner or management decides to sell the company then it should give the union the right of first refusal. Gusto sa union silay mupalit sa Kompanya. Question: is that terms and conditions of work? No that is not terms and conditions of work. Then it is not within the scope of collective bargaining. It is not included in the duty to bargain. That is called mandatory subject of bargaining. The duty to bargain and the right to bargain only covers mandatory subject of bargaining. What are the mandatory subject of bargaining. Terms and conditions of work that are within the bargaining unit, not the other terms and conditions of work of other bargaining unit. Only that bargaining unit that is the subject matter of the negotiation. So retirement benefit are they mandatory subject of bargaining. Yes. Nestle had pronounced. It is subject of mandatory bargaining. Parties cannot refuse to bargain of retirement benefits. Now, question: about the health benefits of retired workers is it mandatory subject of bargaining. Do you know of any worker who is covered by benefits after they have retired? I know at least one benefit. Free passes of Philippine Air Line employees that have reached 20 years of service. When you retire from the airline you still enjoy free passes provided you reached 20 years of service. [Father added:Those are NRSS tickets= Non-Revenue Subject to Space.] This is the negotiation phase. This is the administration phase. There is another list of duty to bargain and that is 253. Duty to bargain where there exist a collective bargaining agreement. Art. 253 Duty to Bargain Collectively When there Exists a Collective Bargaining Agreement. When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. The duties during the administration phase when there is a CBA: 1) to maintain the status quo- you will not change the bargaining agreement. You keep it the same, if you only agreed upon P30 that remains for the entire period. You cannot change your mind and say gigamyan naman mi ilisdan nani nato. You wait for the next negotiation for the next bargaining agreement. 2) neither parties shall terminate- you cannot terminate it and say I will go back to individual agreement. 3) not modified. But then there is an option. In the last 60 days of the agreement either party can serve a notice to modify the agreement. This is already preparatory to the period when the existing CBA has already reached its end. You renegotiate in advance the terms and conditions during the 60 day period and the question is: if a union during the 60 day
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freedom period submit a bargaining proposal, is the employer duty bound to meet promptly and expeditiously in good faith for the purpose of arriving in a CBA. The SC has said the employer who negotiates the new CBA during the 60 day freedom period does so at his own risk because there might be petition for certification of election (transpire?) during the 60 days. An election will be held and the incumbent arrived at the CBA renewal might not be elected. The new exclusive bargaining agent and you will have to enter a negotiation and the negotiation they entered beforehand might be trashed away. So it is good if there is no certification of election then right after the end of the existing CBA and you will have a new one that you will immediately dove tail it.. There is no gap. Because if no CBA to dovetail the old CBA that expires. What will happen? 253 says that the old CBA will remain in full force and effect during the 60 day period and or until a new CBA has been reached by the parties. There is therefore an automatic hold-over provided for. The old CBA will continue to be the law between the parties until the new CBA is arrived at. That is the law imposing to the parties, the parties may not agree on that in the CBA because the CBA only provided years but the law again imposes that the CBA that has expired continuous to be the law between the parties. So, here not terminate not modified maintain status quo those are the duties to bargain collectively. 4) may submit bargaining proposals 60 day freedom period.- do you have the duty to respond within 10 days after the submission of the proposals. The answer is no. 250 does not operate. Because it is simply permissive not mandatory. Not mandatory. Now.in the end of the 5 year period. Term of the CBA has been reached. 60 day freedom period. Where you are allowed to do negotiation. What happens here in the negotiation period. This becomes true you do not terminate, you do not modify, you maintain the status quo. The old CBA continuous to cover the parties. And then besides that this entire thing becomes operative because you are negotiating a new CBA. So here everything is (reiterated?). You are negotiating a new CBA and yet at the same time an old CBA that is automatically holding the parties. So Collective Bargaining is cumulative. DAY 21 Let us go through the 5 provisions of the Labor Code where there is a duty to bargain 1) Art 124 Where the application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board results in distortions of the wage structure within an establishment, the employer and the union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the grievance procedure under their collective bargaining agreement and, if it remains unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by the voluntary arbitrators within ten (10) calendar days from the time said dispute was referred to voluntary arbitration. There is an invocation of the grievance procedure of the CBA. That is where you thresh out the problem on wage distortion. Q: When does the wage distortion occur? If you have a workplace that has a hierarchy of employees with different wage levels because of their experience, their qualifications, and other modes of objective distinction as to their wages. If there is that hierarchy and there is that wage order and it does not apply to all of them and the application that is selective, lets say it only applies to 1 class or sub-class, results in the elimination and severe contraction of wage differences. Then you have wage distortion. Now, how are wage distortion settled? You are a regular welder. Before the WO, you were receiving P150. The probational welder receives minimum wage P120. The WO is issued and it adds P20 to the former minimum wage. So kadtong P120 + P20, nahimo ng P140. So pila na ang diperensya sa P150 ug sa new minimum wage? P10 na lng. Reklamo ang regular welder: there is wage distortion, before our difference is P30, now it is just P10. Q: How do you resolve wage distortion? They will file a grievance if there is a CBA. It will be dictated as their grievance.
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What is the obligation of the employer, once there is a grievance filed? There is an obligation to meet promptly and expeditiously to adjust. If you will not meet, then you fail in the duty to bargain because that is part of bargaining. Republic Savings Banks says, part of the duty to bargain does not end in the CBA. It continues in the administering the CBA. The union president wrote an open letter to the president of the bank. Then he distributed it to the union members, and reprinted in hundreds and passed it to all employees. In that letter, he said: you, as president of the bank, have failed the bank. You are a no good president. Everybody knows that your secretary is your mistress. You go to US to attend a banking conference, you do not bring any of the officers. You bring your mistress.. Then he signed it. The president of the bank placed the union president under investigation for defaming the bank president and serious misconduct. After that, the union president was fired. The union president filed an unfair labor practice complaint against the president of the bank. What is the unfair labor practice? It is for discriminatory treatment of the union president because I exercised my right to self-organization and my right to CBA. How come there is CBA? Because what I passed to you was a grievance and you did not attend to it. What I gave you was bad news, but it was a grievance. You punished the messenger instead of acting on the bad news. Issue: who is correct? The SC said that the duty to bargain does not end in the CBA. It continues even after the CBA has been signed. Every grievance that commences from the CBA must be attended to with dispatch, with speed. So the union president was correct. What he sent was a grievance and management has the duty to immediately attend to it. No wonder employers are allergic to unions. Every line in the CBA could arise a controversy. Whether or not the controversy is reasonable does not excuse you from attending the grievance. You cannot say that you can only bargain if the guy sitting across the table is talking sense. If not, tell him to go to the marines. No, you cannot tell that. Even if the grievance is nonarbitrable. (Pareho ra na sa no cause of action, kinahanglan aktohan gihapon nimo, file a motion to dismiss for no cause of action.) For instance, if the grievance is non-arbitrable. Suppose there is an agreement in the CBA that does not cover terms and condition of employment, is that arbitrable? Suppose there is an agreement that the union is granted the right to first refusal in case the employer sells the factory. And now, the employer is selling the factory to 3rd party and the union learns about it. And the union learns about it. And the union invokes the CBA and grieves. Then the factory will say na lamo na wa man moy kwarta. Is that the correct answer? Mao nay lantugi na kinanto bah, dili na mahimo. Do you really have the right to 1st refusal? If it is there, does the employer have to entertain you? It is not terms and conditions of work so it cannot be a grievance. Then where do you bring it? You bring it to the regular courts because it is violation of your right to first refusal. (That is a nominate contract) If you are the employer and mutawag sila ug grievance na ing ana, no cause of action. Why? It will only be a grievance if it is mandatory subject of the employment. Iapil na lang diay na? You cannot do that because jurisdiction is not granted by the parties. It is granted by law. But even if it is not arbitrable, the labor arbiter, before whom a complaint of unfair labor practice is lodged, is given the 1 st opportunity to act on it. Dili mutubag ang employer, maglalis sila. Naay grievance. What is the next step after the grievance procedure? Voluntary arbitration. Mamili sila ug voluntary arbitrator. Then it will be the voluntary arbitrator who is given the 1st option to act on the issue of jurisdiction. Then the employer will say, non-arbitrable because it is not covered by the CBA. Naa na na sa VA if he thinks he has the jurisdiction, he will continue to hear and decide the case. What is the remedy of the employer? Naa ra na niya if paminawon siya. Musaka siya sa SC, question of law, certiorari. Dako na nag gasto. If it is a big employer, maybe the employer will go straight, just like the nestle case. 2005, 2008, hantod karon naa gihapon. 2) Art. 251 Art. 251. Duty to bargain collectively in the absence of collective bargaining agreements.In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be
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the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. That provision is non-sense because it says In the absence of CBA, the employer and the employee will bargain in the accordance of Labor Code. Dayon mangita ka sa Labor Code, wala diay. Sa ato pa wa diay duty to bargain. 3) Art. 252 Art. 252. Meaning of duty to bargain collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. That is the set of duties to bargain collectively during the negotiation phase. 4) Art 253 Art. 253. Duty to bargain collectively when there exists a collective bargaining agreement.When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. That is the list of duties during the administration phase. There are 3 instances of the duty that you need to pay attention to: a) the duty not to terminate or modify the contract. That is a duty. Na dili ka muhilabot sa CBA. Aron dili ni mausab o muoppose kay wa pa man siya matapos. b) the duty to attend to grievances. Precisely to maintain the CBA. c) the option to renew the contract even before the contract has ended and that is during the 60 days. That is not a duty. The parties are free to bargain collectively for the next contract but there is no obligation there. There is no duty. Why? Because there might be a petition that will be filed. There might be a certification election. The incumbent exclusive bargaining agent may be changed. The new one may want to change the CBA, they may want a product of their own negotiation. So there is no obligation at all during the 60 days. Permissive, not mandatory. 5) Art. 253-A Art. 253-A. Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may exercise their rights under this Code.
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This you have to remember. Term of CBA is 5 years. You agree wage rates, hours of work, and all types of terms and conditions for all those 5 years. Now, it is customary to have yearly increase in wages in the CBA. So there is 1st year increase, 2nd year increase and so on til 5th year. Normally that happens. Now, it says all other provisions of the CBA shall be renegotiated not later than 3 years after its execution. You have the option before the 3rd year ends that the remaining 2 years be renegotiated. Thats what happened in General Milling vs CA. General Milling refused to negotiate the last 2 years. Why? Because they said union has already been rejected by the employees. The SC said, they promulgated the duty to bargain collectively because they did not sit down to renegotiate for the last 2 years. Now, also in the provision it says, the CBA remains in effect even after the CBA has ended. Q: Upto when? Until a new CBA is entered into. Sa ato pa, while you re already negotiating a new CBA after the 60-day freedom period, you must also administer an existing expired CBA. All the duties in the 2nd phase is also carried. You continue to meet grievances in the old CBA and you may also be negotiated. That is the most troublesome phase. Those are the 5 provision in the duty to bagain collectively. Balikbalika na ug basa. Imagina na aron makita ninyo kung unsa ning duty to bargain collectively. Kanus a ni? Naa na gani union na exclusive bargaining agent, at least 1 of these 5 will apply. Naa na ganni CBA, at least 3 or 4 of these 5 will apply. If you dont believe, imagina na ninyo after reading these. Do an outline arong makasabot ka. Kung cge ra kag balikbalik ug basa ani and wa nimo makit-I, dili nimo maimagine, this is alien to you. Dili man ni everday. Dili man ni sale, property.
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Lectures of Fr. Nazareno Labor Relations 2nd Exam SY 2012-2013

3-Manresa (Jonah,Ian, Ana, Jesse)

3-Manresa (Jonah,Ian, Ana, Jesse)

3-Manresa (Jonah,Ian, Ana, Jesse)

3-Manresa (Jonah,Ian, Ana, Jesse)

3-Manresa (Jonah,Ian, Ana, Jesse)

3-Manresa (Jonah,Ian, Ana, Jesse)

3-Manresa (Jonah,Ian, Ana, Jesse)

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