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LABOR LAW

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LABOR RELATIONS LAW

A. RIGHT TO SELF-ORGANIZATION
Article
243.
Coverage
Employees
Right
to
Organization

and
Self-

All person employed in commercial,

industrial and agricultural enterprises
and in religious, charitable, medical or
educational
institute
whether
operating for profit or not, shall have
the right to self- organization and to
form, join, or assist labor organizations
of their own choosing for purposes of
collective
bargaining
Ambulant,
intermittent and itinerant workers, selfemployed people, rural workers and
those without any definite employers
may form labor organizations for their
mutual aid protection.
Right to Self-Organization
Right of the workers to form, join, or
assist labor organizations of their own
choosing for purposes of collective
bargaining.

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The right to self-organization includes

the following, to:
a.
b.
c.
d.
e.
f.

Form unions;
Take part in its formation;
Join a union;
Collectively bargain;
Collectively negotiate; or
Engage in concerted activities for
mutual aid and protection

Negative
Right
to
Self
Organization: the right not to
join, affiliate with, or assist any
union, and to disaffiliate or resign
from a labor organization is
subsumed in the right to join,
affiliate with, or assist any union
and to maintain membership
therein. (Reyes vs. Trajano, 209 SCRA
484)

The right comprehends two broad

concepts, to wit:
1. Liberty or freedom, that is, the
absence of legal restraint; and
2. Power, that is, an employee may,
as he please, join or refrain from
joining an association. (Victoriano vs.
Elizalde Rope Workers Union GR L-25246,
September 12, 1974)

Refusal not to join unions

contrary to religious beliefs
does not bar the members from
forming
their
own
union.
(Kapatiran, et al vs. Calleja, 162 SCRA
367)

Principles on the Right to Self Organization:

1.

Any employee,
whether employed for a definite
period or not, shall, beginning on the
first day of his service, be eligible for
membership
in
any
labor
organization.
2.
Right to join a
union cannot be made subject of a
CBA stipulation.
1. COLLECTIVE BARGAINING

Collective bargaining may be defined

as bargaining by a labor organization,
in behalf of its members, with the
employer
regarding
terms
and
conditions employment. It denotes, in
common usage as well as in legal
terminology,
negotiations
looking
toward
a
collective
bargaining
agreement.
Eligibility
of
Employees
unionize for the purposes
collective bargaining:

to
of

a. The following are eligible to

form
or
assist
a
labor
organization for purposes of
collective bargaining:
Private Sector:
All
persons
employed
in
commercial,
industrial
and
agricultural enterprises (Art. 243);
Employees
of
religious,
charitable,
medical
or
educational
institutions,
whether operating for profit or
not (Art. 243);
Employees
of
governmentowned
and/or
controlled
corporations without original
charter established under the
Corporation Code (Art. 244);

Front-line managers commonly

known
as
supervisory
employees, but only among
themselves, as they cannot join
a rank-and-file union. (Art. 245)
Alien employees, provided:
He has a valid working
permit issued by DOLE; and

He is a national of a country
which grants the same or
similar rights to Filipino
workers
or
which
has
ratified
either
ILO
Convention No. 87 or ILO
Convention No. 98, as
certified by the Philippine
Department
of
Foreign
Affairs (Art. 269)
o Working children
o Homeworkers

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o
o

Employees
of
Cooperatives
Employees of legitimate
contractors, not with the
principals, but with the
contractors.

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Q: Is mixed membership of
supervisors and rank-and-file
employees in one union a
ground
to
cancel
its
registration?
A: No, in case there is mixed
membership of supervisors and
rank-and-file employees in one
union, the rule enunciated in Art.
245-A of the Labor Code, unlike in
the old law, is that it cannot be
invoked as a ground for the
cancellation of the registration of
the union. The employees so
improperly
included
are
automatically deemed removed
from the list of members of the
said union. In other words, their
removal from the said list is by
operation of law.

Public Sector all rank-and-file

employees of all branches,
subdivisions, instrumentalities,
and agencies of government,
including
government-owned
and/or controlled corporations
with original charters can form,
join
or
assist
employees
organizations of their own
choosing (Art. 244)

government authorities, labormanagement

committees,
works councils and other forms
of
workers
participation
schemes to achieve the same
objectives. (Sec. 2)
iii. EO 180 does not apply to:

High-level employees whose

functions
are
normally
considered as policy-making
or managerial or whose
duties are of a highly
confidential nature shall not
be eligible to join the
organization of rank-and-file
government
employees.
(Sec. 3)

iv.

Executive Order No. 180

providing guidelines for the exercise
of the right to organize by the
government employees, creating a
public sector labor management
council, and for other purposes.

Members of the Armed

Forces of the Philippines,
Police
officers
and
policemen,
Firemen, and
Jail guards. (Sec. 4)

Protection of the Right to

Organize
Government
employees
shall
not
be
discriminated against in respect
of their employment by reason
of
their
membership
in
employees organizations or
participation in the normal
activities of their organization.
Their employment shall not be
subject to the condition that
they shall not join or shall
relinquish their membership in
the employees organizations.
(Sec. 5)

i.

ii.

Coverage all employees of all

branches,
subdivisions,
instrumentalities, and agencies
of
government,
including
government-owned
and/or
controlled corporations with
original
charters
(Sec.
1)
otherwise
known
as
government employees.
Purpose for the furtherance
and
protection
of
their
interests. They can also form, in
conjunction with appropriate

v.

Registration with the Civil

Service Commission and DOLE.
(Sec. 7)

vi.

Subject of Negotiation
Terms
and
conditions
of
employment or improvements
thereof, except those that are
fixed by law (Sec. 13)

vii.

Peaceful
Concerted
Activities and Strikes - Civil
Service
laws
and
rules

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governing concerted activities

and strikes in the government
service shall be observed,
subject to any legislation that
may be enacted by Congress.
(Sec. 14)

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b. Persons not allowed form, join

or assist labor organizations
for the purpose of collective
bargaining
Private Sector:
Managerial employees are not
eligible to join, assist or form
any labor organization. (Art. 245)
Confidential
employees

confidential
employees
are
those who meet the following
criteria:
They assist in confidential
capacity;
To persons or officers who
formulate, determine, and
effectuate
management
policies, specifically in the
field of labor relations.
Public Sector:
o EO 180 Sec. 4
Members of the Armed
Forces of the Philippines
Police
officers
and
policemen
Firemen
Jail Guards

Members
of
the
Cooperatives they are
regarded as co-owners of
the cooperative. (San Jose
Electric Service Cooperatives, Inc.
vs, Ministry of Labor, G.R. No.
77231, May 31, 1989)

Exception: Employees of
the cooperative who are not
members thereof.

Self-Employed employees,
ambulant, intermittent, and
other
workers
without
definite employees they
can join labor organizations
for their mutual aid and
benefit but not for the
purpose
of
collective
bargaining since they have
no employees with whom
they
can
collectively
bargain (Art. 243)

2. Bargaining unit
Bargaining Unit refers to a group of
employees sharing mutual interests
within
a
given
employer
unit,
comprised of all or less than all of the
entire body of employee in the
employer
unit
or
any
specific
occupational or geographical grouping
within such employer unit. (Book Five,
Rule 1 Section 1d of the Implementing Rules and
Regulation)

A bargaining unit is a "group of

employees of a given employer,
comprised of all or less than all of
the entire body of employees,
consistent with equity to the
employer, indicate to be the best
suited to serve the reciprocal rights
and duties of the parties under the
collective bargaining provisions of
the law. (San Miguel Corp. vs.
Laguesma, GR No. 100485, Sept. 21, 1994)

a.

Test to determine the constituency

of an appropriate bargaining unit:
(San Miguel Corp. vs. Laguesma, id.)

1.
2.

nity or
doctrine;

mutuality

of

Commu
interest

Globe
doctrine or the will of the members;
3.
Collecti
ve bargaining history doctrine; and
4.
Employ
ment status doctrine.
Community
or
mutuality
of
Interest
Doctrine

employees
sought to be represented by the
collective bargaining agent must have
community or mutuality of interest in
terms of employment and working
conditions as evidenced by the type of
work they perform. It is characterized
by the similarity of employment status,
same duties and responsibilities and
substantially similar compensation and
working conditions.

Basic test of an appropriate

bargaining units acceptability is
whether or not it is fundamentally

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the combination which will best

assure to all employees the
exercise
of
their
collective
bargaining rights (Belyca vs. FerrerCalleja, 168 SCRA 184).
Globe Doctrine this principle is
based on the will of the employees.
This rule was first enunciated in the
United State case of Globe Machine
and Stamping Co., where it was ruled
that in defining appropriate bargaining
unit, the determining factor is the
desire of the workers themselves,
through
referendum,
plebiscite,
certification election, etc.

Bargaining units may be formed

through separation of new units
from existing ones whenever
plebiscites had shown the workers
desire
to
have
their
own
representatives
(Mechanical
Department Labor Union vs. CIR, 24 SCRA
925).

Collective
Bargaining
History
Doctrine puts premium to the prior
collective bargaining history and
affinity
of
the
employees
in
determining
the
appropriate
bargaining unit.

While the existence of a bargaining

history is a factor that may be
reckoned with in determining the
appropriate bargaining unit, the
same is not decisive or conclusive.
The test of grouping is community
or mutuality of interests. This is so
because "the basic test of an
asserted
bargaining
unit's
acceptability is whether or not it is
fundamentally the combination
which will best assure to all
employees the exercise of their
collective
bargaining
rights."
(Democratic Labor Association v. Cebu
Stevedoring Company, Inc., et al., 103 Phil.
1103 [1958]). Certainly, there is a

mutuality of interest among the

employees of the Sawmill Division
and the Logging Division. Their
functions mesh with one another.
One group needs the other in the

same way that the company needs

them
both.
There
may
be
difference as to the nature of their
individual assignments but the
distinctions are not enough to
warrant the formation of a separate
bargaining unit. (National Association of
Free Trade Union vs. Mainit Lumber
Development Company Workers Union, 192
SCRA 598)

Employment Status Doctrine the

position and categories of work to
which the employees belong must
adhere to the test of community or
mutuality of interest (Belyca Corporation
vs. Ferrer-Calleja, 168 SCRA 184)

A unit must in effect be

a grouping
of
employees
who
have
substantial, mutual interest in
wages, hours, working conditions
and other subject of collective
bargaining. (San Miguel Corporation
Employees Union-PTGWO vs. Confesor, G.R.
No. 111262, September 19, 1996)

Elements
of
Bargaining Unit

an

Appropriate

1. Composition
All or less than all of the entire
body of employees.
2. Equity
Of employees: a.k.a.
interest of employees

collective

Consistent with the equity of

the employer

3. Purpose
To serve the reciprocal rights and
duties of the parties under
collective bargaining provisions of
law.
4. Size of the Unit
The
legal
preference
is
to
consolidate employees into one
unit rather than splitting them up
into smaller and weaker groups.

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This bias for bigger units flows from

the basic philosophy of unionizing
in unity there is strength.
Determining
agency
appropriate bargaining unit

of

Bureau of Labor Relations and Labor

Relations Divisions in the Regional
Offices of the DOLE (Art.226, Labor Code).
BLR shall have 15 calendar days to act
on labor cases before it, subject to
extension by agreement of the parties.

The CIR (now BLR) enjoys a wide

discretion in determining the
procedure necessary to ensure the
fair and free choice of bargaining
representation by employees. Its
action in deciding upon an
appropriate unit for collective
bargaining
purposes
is
discretionary and its judgment in
this respect is entitled to almost
complete finality, unless its action
is arbitrary or capricious and
absent
ant
grave
abuse
of
discretion as to justify the Courts
intervention. (Filoil Refinery Corp. vs.
Filoil
Supervisory
and
Employees, 46 SCRA 512)

Confidential

No one would deny the CIRs (now

BLR) right of full investigation in
arriving at a correct and conclusive
finding of fact in order to deny or
grant the petitions for certification
election. One way of determining
the will or desire of the employees
is through a plebiscite carried by
secret ballot to be conducted by
the
CIR
itself.
(Kapisanan
ng
Manggagawa sa Manila Railroad Co. vs. Yard
Crew Union, 4 SCRA 487)

b. Bargaining Agent
Exclusive
Bargaining
Representative or Agent - refers to
a
legitimate
labor
union
duly
recognized or certified as the sole and
exclusive bargaining representative or
agent of all the employees in a
bargaining unit. (Art. 212[j])

1. Modes of determining the sole and

exclusive bargaining agent:
a.
Voluntary Recognition;
b.
Certification Election;
c. Consent Election;
d.
Run-off Election;
e.
Re-run election.
a. Voluntary Recognition the process
by which a legitimate labor union is
voluntarily recognized by the employer
as
the
exclusive
bargaining
representative or agent in a bargaining
unit and reported as such with the
regional office in accordance with the
Rules to Implement the Labor Code. It
is proper only when there is only one
legitimate labor organization existing
an operating in a bargaining unit.
Instance
when
voluntary
recognition is proper:
1. Unorganized company (enterprise
is being unionized for the first
time);
2. There is only one labor union as
petitioner;
3. Union voluntarily recognized is
composed of the majority of the
members of the bargaining unit.
(i) Requirements:

(Rule VII, Book V,

Omnibus Rules Implementing the Labor
Code)

Section
1.
Requirements
voluntary recognition.

for

Within thirty (30) days from the

voluntary recognition of the employer,
the employer representative and union
president shall submit to the Regional
Office a joint statement attesting to
the fact of voluntary recognition, which
shall also include the following:
(a) Proof of posting of the joint
statement of voluntary recognition
for fifteen (15) consecutive days in
two (2) conspicuous places of the
establishment or bargaining unit
where the union seeks to operate;

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(b) The
approximate
number
of
employees in the bargaining unit,
accompanied by the names and
signatures of at least a majority of
the
supporting
the
voluntary
recognition; and
(c) A statement that there is no other
legitimate
labor
organization
operating within the bargaining
unit.
General Rule: Voluntary recognition is
no longer allowed.
Exception: However, for unorganized
establishment, it can still be allowed. It
bars the certification election for 1
year, after which others can file
certification election unless CBA was
agreed upon by the employer and the
labor union. (Samahang Manggagawa sa

Philippine Corporation United Rank and file

Association Federation of Free Workers vs.
Buklod ng Manggagawa ng DHL Philippines
Corporation, G.R. No. 152094, July 22,
2004).

Participants
Election:

the Labor Code)

This is the most democratic and

expeditious method by which the
laborer can freely determine the
union that shall act as their
representative in their dealings
with the establishment where they
are working. It is also appropriate
means whereby controversies and
dispute on representation may be
laid to rest, by the unequivocal
vote of the employees themselves.
(Philippine Airlines Employees Asscoiation
vs. Calleja, G.R. No. 76673, June 22, 1988)

Purpose:
To ascertain the majority of the
employees choice of an appropriate
bargaining unit

To be or not be represented by a
labor organization and, in the
affirmative case, by which one (DHL

Certification

General Rule: All employees in a

bargaining unit regardless of the
period or status of their employment.
Exceptions:
a. Managerial employees;
b. Workers
without
employment
relationship
in
establishment
concerned; and

Premex vs. Sec. of Labor, 286 SCRA 693)

b. Certification election refers to the

process of determining through special
ballot
the
sole
and
exclusive
bargaining agent of the employees in
an appropriate bargaining unit for
purposes of collective bargaining or
negotiations. (Book V, Rule I, Sec 1, IRR of

in

No
Employer

Employee
relationship = No duty to
bargain on either party (Allied
Free Workers Union vs.
Maritima, 19 SCRA 258)

Compania

c. Employees of a cooperative who

are also members of the same.
Note: The employer can only call for a
certification election, other than that,
he has no other role, otherwise,
interference is prohibited. Employer is
stranger to the election, otherwise, it
can be considered as a company
union.
Instance
when
Petition
for
Certification Elections is Proper:
a. In case representation issues exist
in an organized establishment;
b. In an unorganized establishment,
even without representation issue.

Mere technicalities should not

be allowed to prevail over the
welfare of the workers. What is
essential is that they be
accorded an opportunity to
determine
freely
and
intelligently
which
labor
organization shall act on their
behalf. (DHL Philippines Corporation
United Rank and File Association
Federation
of
free

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Workers vs. Buklod ng Mangagawa ng
DHL Philippines Corporation, G.R. No.
152094, July 22, 2004)

(i)

In
an
establishment

unorganized

a. motion shall be filed at any

time prior to the finality of the
decision
calling
for
a
certification election.
b. If the motion is found sufficient
in form and substance, the
Med-Arbiter shall, within five (5)
days from receipt thereof order
the inclusion of the movant as
one of the choices, and the
original
decision
shall
be
amended accordingly.
Note: The order of the Med-Arbiter
resolving the motion shall not be
subject
to
reconsideration
or
appeal.
Any
motion
for
reconsideration or appeal so filed
shall not stop the conduct of
consent election, but nevertheless
shall form part of the record of the
case.
Unorganized Establishment an
employer entity:
1. Where there is no recognized or
certified collective bargaining union
or agent;
2. Where there are unions in existence
therein for as long as not one of
them is duly certified as the sole
and
exclusive
bargaining
representative of the employees in
the particular bargaining unit it
seeks to operate and represent;
3. Where there is a duly recognized or
certified bargaining agent for rankand file employees, but the petition
for certification election was filed by
the supervisors union.
(ii)

In an organized establishment
Requisites:
a.
A petition questioning the
majority
status
of
the
incumbent bargaining agent is

filed before the DOLE within the

60-day freedom period;
b. Such petition was verified;
c. The petition is supported by the
written consent of at least
twenty-five percent (25%) of all
the
employees
in
the
bargaining unit. (Substantial
Support)
Substantial
Support
with
regard
to
Organized
Establishments A Substantial
support or twenty-five percent
(25%) of all members of the
Appropriate Bargaining Unit is
required to know the real intention
of the employees if they really
want to have an election. If such
requirement is complied with, it is
mandatory upon the Bureau to
order the election.

Substantial support is not

jurisdictional; hence it need not
be given within a reasonable
time before the election day.
If substantial support is not
reached, it is discretionary to
continue the election. The test
whether
the
substantial
compliance
was
obtained
through
fraud
or
when
substantial support was not
reached, will be proven in the
election itself.

Organized
vs.
Establishment

Unorganized

ORGANIZED

UNORGANIZED

(Art. 256)

(Art. 257)

As to the existence of a recognized

or certified Sole and exclusive
bargaining agent
Has at least one.

None.

As to the petition to be filled

Must be verified.

Need
not
verified.

be

As to the filing of the petition for

certificate of election

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No
petition
for
certification election
must be filed EXCEPT
within
the
60-day
freedom period before
the expiration of the
collective agreement.

b. From the date a valid

certification
election,
consent or run-off election
has been conducted within
the bargaining unit.

Not Applicable.
Freedom period
is not applicable,
thus the petition
can
be
filed
anytime

3. Bargaining Deadlock Bar

Rule
A
representation
question
may
not
be
entertained:

Rationale:
In
accordance with the
principle on industrial
peace wherein there
should be a period
where the employer
and
employees
should be prevented
from protesting the
CBA and respect what
has
been
agreed
upon.

a. When the duly certified

bargaining
agent
has
commenced and sustained
negotiations in good faith
with the ER, within the
period of one year from the
date of a valid certification,
consent, or run-off election
or
from
the
date
of
voluntary recognition;
b. When a bargaining deadlock
to which an incumbent is a
party has been submitted to
conciliation, arbitration, or
the subject of a valid notice
of strike or lockout

As to the Substantial Support Rule

Must
be
duly
supported
by
the
written consent of at
least 25% of all the
members
of
the
Appropriate
Bargaining Unit.
Rationale: Law wants
to know the intention
of the employees.

Substantial
support rule is
not necessary in
unorganized
establishments.
Rationale:
Intention of law
is to bring in the
union
and
to
implement
the
policy
behind
Art. 221 (a).

(iii) Rules prohibiting the filing of

petition
for
certification
election
1. Contract Bar Rule - a petition
for Certification Election may
not be filed when a CBA has
been registered with the BLR.
Where a CBA is duly registered,
a petition for CE may be filed
only within the sixty-day period
prior to its expiry.
2. Certification-Year
Year Bar

Rule/One

Requisites for the validity of

the petition for certification
election:
1. Legitimate Union
2. In an organized establishment,
petition is filed during the 60day freedom period of a duly
registered CBA
3. In
an
unorganized
establishment,
the
petition
complied
with
the
25%
requirement of written support
of
the
members
of
the
bargaining unit.
4. The petition is filed not in
violation of the four (4) Bar
Rules.

A petition for CE may not be

filed within one year:
a. From the date of the fact of
voluntary recognition has
been entered

A certification election, to
repeat, is the most appropriate
means of ascertaining its will. It
is true that there may be
circumstances
where
the
interest of the employer calls
for its being heard on the

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matter. An obvious instance is

where it invokes the obstacle
interposed by the contract-bar
rule. This case certainly does
not fall within the exception.
Sound policy dictates that as
much as possible, management
is to maintain a strictly handsoff policy. For if it does not, it
may lend itself to the legitimate
suspension that it is partial to
one of the contending unions.
That is repugnant to the
concept
of
collective
bargaining. That is against the
letter and spirit of welfare
legislation intended to protect
labor and to promote social
justice. The judiciary then
should be the last to look with
tolerance at such efforts of an
employer to take part in the
process leading to the free and
untrammeled choice of the
exclusive
bargaining
representative of the workers.
(Eastland vs. Noriel, G.R. No. L-45528
February 10, 1982)

General Rule: Under the Contract

Bar Rule, a valid and existing
collective bargaining agreement is
a bar to petition for certification
election. Hence an employer may
successfully oppose a petition for
certification election if it violates
this Rule.

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Exceptions:
(a) if the petition is made within 60
days before the expiration of
the
CBA,
known
as
the
freedom period
(b) if the CBA is defective or
inadequate in substance, as
when it does not fulfill the legal
requirements of providing for a
grievance
machinery
or
voluntary arbitration; and
(c) if it has not voluntary the formal
requirements for registration
with Bureau or the Regional
Office of the DOLE, which
requirement are held to be
mandatory (Asso. Trade Union vs.
Trajano, 162 SCRA 318) in any of
these exceptional cases, the
Contract Bar Rule will not apply
and the employer would have
no ground to contest the
certification election.
Protests and other question
arising
from
conduct
of
certification election
Section 10. Challenging of vote.An
authorized representative of any of
the
contending
unions
and
employer may challenge a vote
before it is deposited in the ballot
box only on any of the following
grounds:
(a) that there is no employeremployee relationship between
the voter and the company;
(b) that the voter is not member of
the appropriate bargaining unit
which
petitioner
seeks
to
present.
Section 11. Procedure in the
challenge of votes.When a vote is
property challenged, the Election
Officer shall place the ballot in an
envelope which shall be sealed in
the presence of the voter and the
representative f the contending
unions and employer. The Election
Officer shall indicate on the

envelope the voters name, the

union or employer challenging the
vote, and the challenge.
The sealed envelope shall then be
signed by the Election Officer and
the
representatives
of
the
contending unions and employer.
The Election Officer shall note all
challenges in the minutes of the
election and shall be responsible
for consolidating all envelopes
containing the challenged votes.
The envelope shall be opened and
the question of eligibility shall be
passed upon only if the number of
segregated voters will materially
alter the result of the election.
Section 12. On-the-spot question.
The Election Officer shall be 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.
Section
13.
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 proceedings. Pretest not
so raised are deemed waived.
Grounds for denial of petition
a. Petitioner is not listed in the
DOLEs registry of legitimate
labor unions or its legal
personality
revoked
or
cancelled with finality;
b. The petition was filed before or
after the freedom period of a
duly registered CBA; provided
that the 60-day period based on
the original CBA shall not
affected by any amendment,
extension or renewal of the
CBA;
c. A duly certified union has
commenced
and
sustained
negotiations, in good faith, with

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the employer in accordance

with Article 250 of the Labor
Code within the 1 year period
from the date of a valid
certification; or there exist a
bargaining deadlock to which
had
been
submitted
to
conciliation or arbitration or had
become the subject of a valid
notice of strike or lockout to
which an incumbent or certified
bargaining agent is party;
d. In case of an organized
establishments,
failure
to
submit
25%
support
requirement.
Two (2) Kinds
Required
in
Election:

of Majorities
Certification

1. Number of votes required for

the validity of the process of
certification election itself majority of all eligible voters in
the appropriate bargaining unit
must cast their votes.
2. Number of votes required to be
certified
as
the
collective
bargaining agent the union
must obtain a majority of the
valid votes cast.
Key Principles:
1. The pendency of a petition to
cancel
the
certificate
of
registration
of
a
union
participating in a certification
election does not stay the
conduct thereof.
2. The pendency of an unfair labor
practice case filed against a
labor organization participating
in certification election does not
stay the holding thereof.
3. Direct Certification as a method
of selecting the exclusive
bargaining
agent
of
the
employees is not allowed. This
is because the conduct of a
certification election is still
necessary in order to arrive in a
manner definitive and certain

concerning the choice

of the
labor organization to represent
the workers in a collective
bargaining unit.
4. The No Union vote is always
one of the choices in a
certification election. Where
majority of the valid votes cast
results in No Union obtaining
the majority, the Med-Arbiter
shall declare such fact in the
order.
5. Only persons who have direct
employment relationship with
the employer may vote in the
certification election, regardless
of their period of employment.
PROCESS AND PROCEDURE

(Rule
VIII, Book V, Omnibus Rules Implementing
the Labor Code)

WHO MAY FILE? (Sec. 1)

a)

Any
legitimate
labor
organization;
b) Any employer, when requested
to bargain collectively.
c) Bureau when no existing
registered CBA in the Bargaining
unit
WHERE TO FILE? (Sec. 2)
The Regional Office which issued the
petitioning unions certificate of
registration/certificate of creation of a
chartered local union.
The petition shall be heard and
resolved by the Med-Arbiter with
jurisdiction on the place where:
a. the principal office of the employer
is located - when both the
employer and the employee are
within
the
same
territorial
jurisdiction; or
b. the bargaining unit actually render
service.
Where two or more petition involving
the same bargaining unit are filed in
one Regional Office, the same shall
be automatically consolidated.
Where these petitions are filed in
different
Regional
Offices,
the

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Regional Office which first acquires
jurisdiction over the case shall
exclude the others, in which case, the
latter shall endorse the petition to the
former for consolidation.

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WHEN TO FILE? (Sec. 3)

expiry date of such agreement.

General Rule : ANYTIME

Exception: Bar Rules:
a. Voluntary recognition has been
entered, or valid certification,
consent or run-off election has
been conducted within 1 year
prior to the filing (Certification
Year Bar Rule);
b. The duly certified union has
commenced
and
sustained
negotiations in good faith with the
employer (Negotiations
Bar
Rule);
c. Bargaining deadlock had been
submitted to
conciliation or
arbitration or had become the
subject of a valid notice of strike
or
lockout
(Bargaining
Deadlock Bar Rule);
d. there is an existing registered
CBA may file only within 60 days
prior to the expiration of the CBA
(Contract Bar Rule)
However, no certification may be
held within one year from the
date of a valid certification,
consent or run-off election or
from the date of voluntary
recognition;
One Year Period Suspended:

Appeal is filed on the order

certifying the election result.
Suspension to be lifted until
decision becomes final.
Neither
may
a
representation
question be entertained, if, before the
filing of a petition for certification
election:
a. the duly recognized or certified
union
has
commenced
negotiations within the one-year
period
referred
to
in
the
immediately preceding paragraph;
b. a bargaining deadlock to an
incumbent or certified bargaining
agent is a party to conciliation or
arbitration or had become the
subject of a valid notice of strike or
lock-out.
If a collective bargaining agreement
has been duly registered, a petition
for certification election or motion for
intervention can only be entertained
within sixty (60) days prior to the

Voting day should be done on a

regular working day. Strike or
lockout is not considered as an
irregular business day, even if it
affects the actual performance of
the
work
of
some
of
the
employees.
(Asian
Design
and
Manufacturing Corp vs. Calleja, 174 SCRA
477)

c. Consent Election the process of

determining through secret ballot the
sole and exclusive representative of
the employees in an appropriate
bargaining unit for purposes of
collective bargaining and negotiation.
It is voluntarily agreed upon by the
parties,
with
or
without
the
intervention of DOLE.
Consent elections are generally held if
there is no substantial issue in dispute
between the employer and unions
involved in representative case.
Difference Between Certification
Election and Consent Election
Certification

Consent Election

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Election
A process of determining through secret
ballot, the sole and exclusive bargaining
agent of the employees in an appropriate
bargaining unit for purposes of collective
bargaining or negotiation.
It is ordered by the
Med-Arbiter of the
BLR,
Department
of
Labor
and
Employment.

It
is
voluntarily
agreed upon by the
parties,
with
or
without
the
intervention by the
Department.

Q: Can the parties agree to the

conduct of consent election even
during the pendency of certification
Election?
A: Yes, in fact the Med-Arbiter is
required to determine if the
contending labor unions are willing
to submit themselves to a consent
election. And if they do, the MedArbiter should conduct consent
election instead of certification
election.
Note: If the unions agree to a consent
election, the Med-Arbiter would not
issue a formal order calling for a
Certification Election, but shall enter
the fact of the agreement in the
minutes of the hearing.

Minutes shall be signed by parties

and attested to by the Med-Arbiter
is required.
The Med-Arbiter shall immediately
forwards record of the petition to
Regional Director or authorized
representative
for
the
determination of the Election
Officer.
1st pre-election conference =
within 10 days from the date of
entry of agreement (Sec. 10, Rule VIII,
Implementing Rules on Labor).

The election is informal because the

preliminary issues concerning the
election
are
resolved,
at
least
tentatively, without the need for a
hearing. In a consent election, the

parties agree to all preliminary issue

and agree to allow the Regional
Director to resolve any objections or
challenges which occur in the election.
Such critical issues which must be
worked out in any case include:
1. Date, time and place for the
election,
2. The description of the appropriate
bargaining unit,
3. The payroll eligibility date, or date
upon which a person must be
employed to be eligible to vote,
and
4. The eligibility of specific employees
(i.e. whether or not an employee is
considered as a supervisor)
Effect of Consent Election

(Sec. 24,

Rule VIII, D.O. No. 40-03)

1. It is a bar to a petition for

Certification Election for 1 year
from the holding of the consent
election.
2. If appeal is filed from the results of
the consent election, the running of
the one-year period is suspended
until the decision on the appeal has
become final and executory.
3. If there is no petition for
Certification
Election
but
the
parties themselves agreed to hold
a consent election with the
intercession of the Regional Office,
it shall bar subsequent petition for
a Certification Election.
d. Run-Off Election election between
the labor unions receiving the two (2)
highest number of votes in a
certification or consent election with
three (3) or more choices, where such
during such certification or consent
election none of the three (3) or more
choices received the majority of the
valid votes cast, provided that the total
number of votes for all contending
unions is at least fifty percent (50%) of
the number votes cast.
Requisites:

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1. Election which provided for 3 or

more choices (no unionis always
a choice);
2. None of the contending unions
receiving a majority of the valid
votes cast;
3. No objections or challenges which,
if sustained, can materially alter
the result; and
4. Total vote for all contending unions
is at least 50% of the number of
vote cast
e. Re-run Election a re-run election
may be justified if certain irregularities
have been committed during the
conduct of the certification election,
such as, inter alia:
a. Disenfranchisement of the voters;
b. Lack of secrecy in voting;
c. Fraud or bribery;

In both instances, An election will be

NO UNION is also a conducted between
choice.
the union receiving
the highest and the
second
highest
number of valid
vote cast.

Company unionism It shall be

unlawful for an employer to initiate,
dominate, assist, or otherwise interfere
with the formation or administration of
any labor organization, including the
giving of financial or support to its
organizers of supporters. (Article 248 [d].
Labor Code)

Rationale: The election would not

reflect the true sentiments and wishes
of employees because the votes of the
members of company dominated union
would not be free.

The invalidation of a certification

election necessitate the conduct of a
re-run election among the contending
unions to determine the true will and
desire of the employees-electorates.

Acts of employer which may

constitute company unionism

In American law and jurisprudence,

a re-run election is conducted when
it is sufficiently proven that the
freedom
of
choice
of
the
employees
in
a
certification
election had been comprised by
the employer or the union (Railway
Labor Act).

a. outright formation by employer

or his representatives;
b. employee formation on outright
demand
or
influence
by
employer;
c. managerially
motivated
formation by employees.

RE-RUN
ELECTION
Conducted when:

1. One
choice
receives
a
plurality
of
vote and the
remaining
choices result
in a tie;
2. All
choices
received the
same number
of votes.

RUN-OFF
ELECTION
Conducted
when
none of the choices,
including the choice
of
NO
UNION,
receives a majority
of the valid votes
cast. There must be
at least 3 choices.

1. Initiation of the company union

idea by:

2. Financial support to the union by

employer who:
a. Defray union expenses; or
b. Pays attorneys to the attorney
who drafted the Constitution or
by-laws of the union.
3. Employer
encouragement
and
assistance by immediate granting
of
exclusive
recognition
as
bargaining
agent
without
determining whether the union
represent
majority
of
the
employees.

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4. Supervisory assistance by soliciting

membership,
permitting
union
activities during work time or
coercing employees to join the
union by threats of dismissal or
demotion.

association free to serve the common

interest of all its members subject only
to
restraints
imposed
by
the
constitution and by-laws of the
association. (Phil. Skylanders, et. al. vs.
NLRC, et. al. G.R. No. 127374, January 21, 2002)

Basic Principles:

Prejudicial Question Rule - an

allegation that one of the contending
union is a company union which will
suspend the holding of a certification
election.

1.

Court of Industrial Relations, 127 SCRA 268)

2. Affiliate union becomes subject of

the rules of the mother union. (Phil.

2. Affiliation and disaffiliation of the

local union from the mother union

Skylanders, et. al. vs. NLRC, et. al., G.R. No.

127374 , January 21, 2002)

a. Affiliation

3.

Mother Union in relation to an

affiliate, the federation or national
union is commonly known as mother
union
Affiliate refers to:
a. An independent union affiliated
with a mother union;
b. A local chapter which has been
subsequently granted independent
registration but did not disaffiliate
from the mother union which
created it.
Note: A chartered local/local chapter
is not an affiliate because a local
chapter created through the mode of
chartering by a mother union under
Art. 234-A of the Labor Code cannot be
properly called an affiliate if it has
not
acquired
any
independent
registration of its own.
Purpose of Affiliation to further
strengthen the collective bargaining
leverage of the affiliate through
collective action
Contract of Agency the mother
union, acting for and in behalf of its
affiliate, has the status of an agent
while the local union remains as a
principal the basic unit of the

Independent legal personality of an

affiliate union is not affected by
affiliation. (Adamson & Adamson, Inc. vs.

The appendage of the acronym of

the mother union after the name of
the
affiliate
union
in
the
registration with the DOLE does not
change
the
principal-agent
relationship between them. Such
inclusion of the acronym is merely
to indicate affiliation at the time of
the registration. It does not mean
that the affiliate union cannot
stand on its own. (Insular Hotel
Employees Union-NFL vs. Waterfront Insular
Hotel
Davao,
G.R.
No.
174040-41,
September 22, 2010)

4. The fact that it was the mother

union which negotiated the CBA
does not make it the principal and
the affiliate or local union which it
represents, the agent.
5. In case of illegal strike, the local
union, not the mother union, is
liable for damages.
b. Disaffiliation

The right to of the affiliate union to

disaffiliate from its mother union is
a constitutionally guaranteed right
which may be invoked by the
former at any time. It is axiomatic
that an affiliate union is a separate
and voluntary association free to
serve the interest of all its
members consistent with the

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freedom of association guaranteed

in the Constitution. (Volkschel Labor

6.

Union vs. Bureau of Labor Relations, G.R.

No. L-45824, June 19, 1985)

Disaffiliation of
IndependentlyRegistered
Union
Does not affect its
legitimate status
as
a
labor
organization

1.

Disaffiliation does not divest an

affiliate
union
of
its
legal
personality. (Adamson & Adamson, Inc.

Disaffiliation of an affiliate union is

not an act of disloyalty. (Malayang
Samahan ng mga Manggagawa sa
M.Greenfield (MSMG-UWP), et. al. vs.
Hon. Cresencio J. Ramos, et. al., G.R. No.
113907, February 28, 2000)

3.

7. Disaffiliating from the mother union

and entering into a CBA with the
employer does not constitute unfair
labor practice.

Ceases
to
be
entitled
to
the
rights
and
privileges granted
to
a
legitimate
labor organization

vs. Court of Industrial Relations, 127 SCRA

268)
2.

BLR, id.)

Disaffiliation of a
Local Chapter

Basic Principles:

8.

c. Substitutionary Doctrine (Change

of
Bargaining
Representative
during the life of a CBA)
It simply refers to the substitution of
the bargaining agent by a newly
certified agent. As a new bargaining
agent, it is duty-bound to respect the
existing CBA but it can renegotiate for
new terms and conditions therein.

Disaffiliation for the purposes of

forming a new union does not
terminate the status of members
thereof as employees of the
company.
By
said
act
of
disaffiliation, the employees who
are members of the local union did
not form a new union but merely
exercised their right to register
their local union. The local union is
free to disaffiliate from its mother
union. (Tropical Hut Employees Union-

Disaffiliation should be approved by

the majority of the union members.
(Art. 249[d])

5.

Disaffiliation terminates the right to

check-off federation dues. (Phil.
Federation of Petroleum Workers vs. Court
of Industrial Relations, 37 SCRA 711)

Disaffiliation is not a violation of the

union security clause. (Tropical Hut
Employees Union-CGW, et. al., vs. Tropical
Hut Food Market, Inc. et. al, id.)

CGW, et. al., vs. Tropical Hut Food Market,

Inc. et. al., G.R. Nos. L-43495-99, January
20, 1990)
4.

Disaffiliation does not affect the

CBA. It does not operate to amend
it or change the administration of
the contract. (Volkschel Labor Union vs.

The substitutionarydoctrine only

provided that the employees
cannot revoke the validly executed
collective bargaining contract with
their employer by simple expedient
of changing their bargaining agent.
And it is in the light of this that the
phrase said new agent would have
to respect said contractmust be
understood, it only means that the
employees,
thru
their
new
bargaining agent, cannot renege
on their collective bargaining
contract, except of course to
negotiate with management for the
shortening
thereof.
(Benguet
Consolidated vs. BCI Employees and
Workers Union PAFLU, G.R. No. L-24711,
April 30, 1968)

In case of change of bargaining

agent under the substitutionary
doctrine, the new bargaining agent
is not bound by the personal
undertakings of the deposed union
like the no strike, no lockout
clause in the CBA which is the

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personal
undertaking
of
the
bargaining unit which negotiated it.
Basic Principles:
1. The substitutionary doctrine cannot
be invoked to subvert the existing
CBA, in derogation of the principle
of freedom to contract.
2. The substitutionary doctrine is also
applies when the local union
disaffiliates from its mother union
after it secured an independent
registration. The local union will
thus be substituted to that of the
mother union which negotiated the
CBA.
3. Union
Dues
Assessments

and

Special

Requirements for validity

Art. 241 have three requisites for the
validity of the special assessment for
the unions incidental expenses:
1) Authorization by written resolution
of majority of all members at the
general
memberships
meeting
called for that purpose;
2) Secretarys record of the minutes
of the meetings attested to by the
president;
3) Individual written authorization for
check-off duly signed by the
employees concerned. (Gabriel vs.

extraordinary fees, other than for

mandatory activities under the Labor
Code.
Exception:
Individual
written
authorization is not required in the
following deductions:
1. for agency fees of non-members of
the bargaining agent, if such nonmember accept the benefits under
the CBA;
2. for fees of mandatory activities
such as labor relations seminar and
labor education activities;
3. for withholding tax;
4. Debt owed by the employee to the
employer which are already due;
5. made pursuant to a judgment order
for debts incurred for food,
clothing, shelter and medical
attendance;
6. wage deductions ordered by the
court;
7. authorized
by
law
such
as
premiums for SSS, Philhealth, PagIbig, etc.
4. Agency Fees

Sec. of Labor, G.R. No. 115949, March 16,

2000)

Check-off a method of deducting

from the employees pay at prescribed
periods, any amount due for fees, fines
and assessment. (Art. 113)
Individual authorization
General Rule: Individual written
authorization duly signed by the
employee indicating the amount,
purpose and beneficiary of the
deduction is required for the check-off
of any union dues, special assessment,
attorneys
fees
or
any
other

Nature:
Quasi-contractual the
bargaining
agent
which
successfully negotiated the CBA
with the employer is given the right
to collect a reasonable fee, called
agency fees from its nonmembers who accept the benefits
under said CBA. It is called agency
fees because by availing of the
benefits of the CBA, they, in effect,
recognize
and
accept
the
bargaining union as their agent
as well. (Holy Cross of Davao College Inc.
vs. Joaquin, 263 SCRA 358)

Requisites:
a. He is a member of the bargaining
unit as a rank-and-file employee;
b. He avails of the benefits of the
existing CBA; and
c. He is not a member of any union.

The unions right to a check-off of

any fee, being a legal right, arises

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even in the absence of a stipulation

for agency fee, provided the above
requisites are present. The basis of
agency fee is that non-union
employees
are
enjoying
the
benefits of the CBA, which was
obtained by the union, without
providing financial or other support
to the union, since they are not
union members. Hence, agency fee
is justified as the consideration for
the benefits they enjoy under the

CBA.

(JA. Sibal, Labor Jurisprudence and

Practice, 4thEd. P. 12)

Limitations on the Amount

Agency Fee: (Art. 248(e))

of

a. It should be reasonable in amount;

b. It should be equivalent to the dues
and other fees paid by members of
the
recognized
collective
bargaining agent