probationary employees which under the CBA, could not vote.
But
Double Majority Rule
GR 181531 – NUWHRAIN-MPC vs SOLE
Carpio Morales, J.
A certification election was conducted between NUWHRAIN and HIMPHLU.
Because of the significant number of segregated votes, the case was
referred back to the Med-Arbiter. The Med-Arbiter ordered the opening of 17
votes. NUWHRAIN argued that HIMPHLU should not be immediately
certified as the SEBA as the inclusion of 17 votes would render the 169 votes
garnered by the latter insufficient to attain the majority of the votes as the
valid votes would increase from 321 to 338 and majority of this is 170. SC
agreed and said that the 17 votes had become significant and ordered a run-
off election seeing that neither of the 2 unions had obtained the required
majority vote.
DOCTRINE
It is well-settled that under the so-called double majority rule, for there to be
a valid certification election, majority of the bargaining unit must have voted
AND the winning union must have garnered majority of the valid votes cast.
FACTS
1. A certification election was conducted among the r&f employees of
Holiday Inn Manila with the ff results:
Employees in voters list: 353
Total Votes Cast: 346
NUWHRAIN-MPHC: 151
HIMPHLU: 169
No Union: 1
Spoiled: 3
Segregated:22
2. In view of significant number of segregated votes, NUWHRAIN-MPC and
HIMPHLU referred the case back to Med-Arbiter Calabocal to decide
which votes to open and tally.
3. 11 of the votes were segregated because they were cast by dismissed
employees, although the legality of their dismissal was still pending
before the CA. 6 were segregated because they were casted by
employees who were occupying supervisory positions at the time of the
election. Lastly, 5 were segregated because they were casted by
Gatbonton, a probationary empolyee’s vote was counted early on.
4. Calabocal ordered the opening of the 17 votes but excluded the
probationary votes.
5. NUWHRAIN appealed to the SOLE and argued that since Gatbonton’s
vote was counted, then the other 5 should be counted as well. Also
HIMPHLU, should not be immediately certified as the bargaining agent,
as the opening of the 17 segregated ballots would push the number of
valid votes cast from 321 to 338 (151 + 169 + 1 + 17), hence, the 169
votes which HIMPHLU garnered would be one vote short of the majority
which would then become 169.
6. SOLE affirmed the Med-Arbiter and argued that Gatbonton’s vote was
included because during the pre-election conference, there was no
disagreement as to its inclusion and neither was it timely challenged, so
that when election day came, the election officer could not just then
segregate his vote. The SOLE further held that even if the 17 votes of
the dismissed and supervisory employees were to be counted and
presumed to be in favor of NUHWRAIN, still, the same would not suffice
to overturn the 169 votes of HIMPHLU.
7. CA affirmed and held that the case of Airtime Specialist does not apply
because the six probationary employees were not yet employed by the
Hotel at the time the Order granting the certification election was issued.
It thus held that Airtime Specialist applies only to situations wherein the
probationary employees were already employed as of the date of filing
of the petition for certification election.
ISSUE with HOLDING
1. W/N the probationary employees’ vote should be counted – NO
The inclusion of Gatbonton’s vote was proper not because it was not
questioned but because probationary employees have the right to vote in a
certification election. As held in Airtime Specialist:
In a certification election, all rank and file employees in the
appropriate bargaining unit, whether probationary or
permanent are entitled to vote… The Code makes no
distinction as to their employment status as basis for eligibility
in supporting the petition for certification election. The law
refers to all the employees in the bargaining unit. All they
need to be eligible to support the petition is to belong to the
bargaining unit.
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Also Rule 2, Sec 2 of DO 40-03 states: xxx For purposes of this section,
any employee, whether employed for a definite period or not, shall
beginning on the first day of his/her service, be eligible for membership in
any labor organization. Xxx
The CBA which prohibits the inclusion of probationary employees cannot
override the Constitutionally-protected right of workers to self-organization.
Rule 9, Sec 5 of DO 40-03, on which the SOLE and the CA rely to support
their position that probationary employees hired after the issuance of the
Order granting the petition for the conduct of certification election must be
excluded, should not be read in isolation and must be harmonized with the
other provisions. Sec 5 states:
All 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.
Presiding from the principle that all employees are, from the first day of
their employment, eligible for membership in a labor organization, it is
evident that the period of reckoning in determining who shall be included in
the list of eligible voters is, in cases where a timely appeal has been filed
from the Order of the Med-Arbiter, the date when the Order of the SOLE,
whether affirming or denying the appeal, becomes final and
executory. Because the filing of an appeal to the SOLE from the Med-
Arbiters Order stays its execution, in accordance with Sec 21 of DO 40-03.
During the pendency of the appeal, the employer may hire additional
employees. To exclude the employees hired after the issuance of the Med-
Arbiters Order but before the appeal has been resolved would violate the
guarantee that every employee has the right to be part of a labor
organization from the first day of their service.
To rule then that only those employees hired as of the date of the issuance
of the Med-Arbiter’s Order are qualified to vote would effectively
disenfranchise employees hired during the pendency of the appeal. More
importantly, reckoning the date of the issuance of the Med-Arbiter’s Order
as the cut-off date would render inutile the remedy of appeal to the SOLE.
Also the votes of supervisory employees should be excluded because
during the election, they already ceased to be r&f employees.
2. W/N HIMPHLU should be certified as the exclusive bargaining agent –
NO
It is well-settled that under the so-called double majority rule, for there to
be a valid certification election, majority of the bargaining unit must
have voted AND the winning union must have garnered majority of
the valid votes cast.
So if the probationary votes are included and the supervisory votes
excluded, it follows that the number of valid votes cast would increase from
321 to 337. Under Art. 256 of LC, the union obtaining the majority of the
valid votes cast by the eligible voters shall be certified as the SEBA of all
the workers in the appropriate bargaining unit. This majority is 50% + 1.
Hence, 50% of 337 is 168.5 + 1 or at least 170.
HIMPHLU only garnered 160 votes, it’s thus clear that it was not able to
obtain a majority vote.
It bears reiteration that the true importance of ascertaining the number of
valid votes cast is for it to serve as basis for computing the required
majority, and not just to determine which union won the elections. The
opening of the segregated but valid votes has thus become material. To be
sure, the conduct of a certification election has a two-fold objective:
to determine the appropriate bargaining unit and to ascertain the
majority representation of the bargaining representative, if the
employees desire to be represented at all by anyone.
Having declared that no choice in the certification election conducted
obtained the required majority, it follows that a run-off election must be held
to determine which between HIMPHLU and NUWHRAIN should represent
the r&f employees.
DISPOSITIVE PORTION
Petition granted. SOLE and CA order set aside.
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