THE APPROPRIATE BARGAINING UNIT

Department Order No. 9. [21 June 1997], and

Department Order No. 40, [17 February 2003]
Republic Act No. 9481 [25 May 2007]

1. Bargaining unit defined - Art. 255, LC

DO 40, R1 S1 (d)

Art. 255. Exclusive bargaining representation and workers’

participation in policy and decision-making. The labor
organization designated or selected by the majority of the employees
in an appropriate collective bargaining unit shall be the exclusive
representative of the employees in such unit for the purpose of
collective bargaining. However, an individual employee or group of
employees shall have the right at any time to present grievances to
their employer.

Any provision of law to the contrary notwithstanding, workers shall

have the right, subject to such rules and regulations as the Secretary
of Labor and Employment may promulgate, to participate in policy and
decision-making processes of the establishment where they are
employed insofar as said processes will directly affect their rights,
benefits and welfare. For this purpose, workers and employers may
form labor-management councils: Provided, That the representatives of
the workers in such labor-management councils shall be elected by at
least the majority of all employees in said establishment. (As amended
by Section 22, Republic Act No. 6715, March 21, 1989)

2. Determination of appropriate bargaining unit

2.1 Generally – community of interest
Exception – Globe doctrine (will of employees)

FIRST DIVISION

[G.R. No. 128845. June 1, 2000]

INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner,

vs. HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of
Labor and Employment; HON. CRESENCIANO B. TRAJANO in his capacity
as the Acting Secretary of Labor and Employment; DR. BRIAN
MACCAULEY in his capacity as the Superintendent of International School-
Manila; and INTERNATIONAL SCHOOL, INC., respondents.

DECISION
KAPUNAN, J.:

Receiving salaries less than their counterparts hired abroad, the local-hires of
private respondent School, mostly Filipinos, cry discrimination. We agree. That
the local-hires are paid more than their colleagues in other schools is, of course,
beside the point. The point is that employees should be given equal pay for work
of equal value. That is a principle long honored in this jurisdiction. That is a
principle that rests on fundamental notions of justice. That is the principle we
uphold today.

Private respondent International School, Inc. (the School, for short), pursuant to
Presidential Decree 732, is a domestic educational institution established
primarily for dependents of foreign diplomatic personnel and other temporary
residents.[1] To enable the School to continue carrying out its educational program
and improve its standard of instruction, Section 2(c) of the same decree
authorizes the School to

employ its own teaching and management personnel selected by it

either locally or abroad, from Philippine or other nationalities, such
personnel being exempt from otherwise applicable laws and
regulations attending their employment, except laws that have been
or will be enacted for the protection of employees.

Accordingly, the School hires both foreign and local teachers as members of its
faculty, classifying the same into two: (1) foreign-hires and (2) local-hires. The
School employs four tests to determine whether a faculty member should be
classified as a foreign-hire or a local hire:

a.....What is one's domicile?

b.....Where is one's home economy?

c.....To which country does one owe economic allegiance?

d.....Was the individual hired abroad specifically to work in the

School and was the School responsible for bringing that individual
to the Philippines?[2]

Should the answer to any of these queries point to the Philippines, the faculty
member is classified as a local hire; otherwise, he or she is deemed a foreign-
hire.

The School grants foreign-hires certain benefits not accorded local-hires. These
include housing, transportation, shipping costs, taxes, and home leave travel
allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%)
more than local-hires. The School justifies the difference on two "significant
economic disadvantages" foreign-hires have to endure, namely: (a) the
"dislocation factor" and (b) limited tenure. The School explains:

A foreign-hire would necessarily have to uproot himself from his

home country, leave his family and friends, and take the risk of
deviating from a promising career path-all for the purpose of
pursuing his profession as an educator, but this time in a foreign
land. The new foreign hire is faced with economic realities: decent
abode for oneself and/or for one's family, effective means of
transportation, allowance for the education of one's children,
adequate insurance against illness and death, and of course the
primary benefit of a basic salary/retirement compensation.

Because of a limited tenure, the foreign hire is confronted again

with the same economic reality after his term: that he will eventually
and inevitably return to his home country where he will have to
confront the uncertainty of obtaining suitable employment after a
long period in a foreign land.

The compensation scheme is simply the School's adaptive

measure to remain competitive on an international level in terms of
attracting competent professionals in the field of international
education.[3]

When negotiations for a new collective bargaining agreement were held on June
1995, petitioner International School Alliance of Educators, "a legitimate labor
union and the collective bargaining representative of all faculty members" [4] of the
School, contested the difference in salary rates between foreign and local-hires.
This issue, as well as the question of whether foreign-hires should be included in
the appropriate bargaining unit, eventually caused a deadlock between the
parties.

On September 7, 1995, petitioner filed a notice of strike. The failure of the

National Conciliation and Mediation Board to bring the parties to a compromise
prompted the Department of Labor and Employment (DOLE) to assume
jurisdiction over the dispute. On June 10, 1996, the DOLE Acting Secretary,
Crescenciano B. Trajano, issued an Order resolving the parity and representation
issues in favor of the School. Then DOLE Secretary Leonardo A. Quisumbing
subsequently denied petitioner's motion for reconsideration in an Order dated
March 19, 1997. Petitioner now seeks relief in this Court.

Petitioner claims that the point-of-hire classification employed by the School is

discriminatory to Filipinos and that the grant of higher salaries to foreign-hires
constitutes racial discrimination.
The School disputes these claims and gives a breakdown of its faculty members,
numbering 38 in all, with nationalities other than Filipino, who have been hired
locally and classified as local hires.[5]The Acting Secretary of Labor found that
these non-Filipino local-hires received the same benefits as the Filipino local-
hires:

The compensation package given to local-hires has been shown to apply to all,
regardless of race. Truth to tell, there are foreigners who have been hired locally
and who are paid equally as Filipino local hires. [6]

The Acting Secretary upheld the point-of-hire classification for the distinction in
salary rates:

The principle "equal pay for equal work" does not find application in
the present case. The international character of the School requires
the hiring of foreign personnel to deal with different nationalities and
different cultures, among the student population.

We also take cognizance of the existence of a system of salaries

and benefits accorded to foreign hired personnel which system is
universally recognized. We agree that certain amenities have to be
provided to these people in order to entice them to render their
services in the Philippines and in the process remain competitive in
the international market.

Furthermore, we took note of the fact that foreign hires have limited
contract of employment unlike the local hires who enjoy security of
tenure. To apply parity therefore, in wages and other benefits would
also require parity in other terms and conditions of employment
which include the employment contract.

A perusal of the parties' 1992-1995 CBA points us to the conditions

and provisions for salary and professional compensation wherein
the parties agree as follows:

All members of the bargaining unit shall be

compensated only in accordance with Appendix C
hereof provided that the Superintendent of the School
has the discretion to recruit and hire expatriate
teachers from abroad, under terms and conditions
that are consistent with accepted international
practice.

Appendix C of said CBA further provides:

 The new salary schedule is deemed at equity with the
Overseas Recruited Staff (OSRS) salary schedule.
The 25% differential is reflective of the agreed value
of system displacement and contracted status of the
OSRS as differentiated from the tenured status of
Locally Recruited Staff (LRS).

To our mind, these provisions demonstrate the parties' recognition

of the difference in the status of two types of employees, hence, the
difference in their salaries.

The Union cannot also invoke the equal protection clause to justify
its claim of parity. It is an established principle of constitutional law
that the guarantee of equal protection of the laws is not violated by
legislation or private covenants based on reasonable classification.
A classification is reasonable if it is based on substantial
distinctions and apply to all members of the same class. Verily,
there is a substantial distinction between foreign hires and local
hires, the former enjoying only a limited tenure, having no amenities
of their own in the Philippines and have to be given a good
compensation package in order to attract them to join the teaching
faculty of the School.[7]

We cannot agree.

That public policy abhors inequality and discrimination is beyond contention. Our
Constitution and laws reflect the policy against these evils. The Constitution [8] in
the Article on Social Justice and Human Rights exhorts Congress to "give highest
priority to the enactment of measures that protect and enhance the right of all
people to human dignity, reduce social, economic, and political inequalities." The
very broad Article 19 of the Civil Code requires every person, "in the exercise of
his rights and in the performance of his duties, [to] act with justice, give everyone
his due, and observe honesty and good faith."

International law, which springs from general principles of law, [9] likewise
proscribes discrimination. General principles of law include principles of equity,
[10]
i.e., the general principles of fairness and justice, based on the test of what is
reasonable.[11] The Universal Declaration of Human Rights, [12] the International
Covenant on Economic, Social, and Cultural Rights, [13] the International
Convention on the Elimination of All Forms of Racial Discrimination, [14] the
Convention against Discrimination in Education,[15] the Convention (No. 111)
Concerning Discrimination in Respect of Employment and Occupation [16] - all
embody the general principle against discrimination, the very antithesis of
fairness and justice. The Philippines, through its Constitution, has incorporated
this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed
in favor of capital, inequality and discrimination by the employer are all the more
reprehensible.

The Constitution[17] specifically provides that labor is entitled to "humane

conditions of work." These conditions are not restricted to the physical workplace
- the factory, the office or the field - but include as well the manner by which
employers treat their employees.

The Constitution[18] also directs the State to promote "equality of employment

opportunities for all." Similarly, the Labor Code [19] provides that the State shall
"ensure equal work opportunities regardless of sex, race or creed." It would be
an affront to both the spirit and letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal employment opportunities,
closes its eyes to unequal and discriminatory terms and conditions of
employment.[20]

Discrimination, particularly in terms of wages, is frowned upon by the Labor

Code. Article 135, for example, prohibits and penalizes [21] the payment of lesser
compensation to a female employee as against a male employee for work of
equal value. Article 248 declares it an unfair labor practice for an employer to
discriminate in regard to wages in order to encourage or discourage membership
in any labor organization.

Notably, the International Covenant on Economic, Social, and Cultural Rights,

supra, in Article 7 thereof, provides:

The States Parties to the present Covenant recognize the right of

everyone to the enjoyment of just and favourable conditions of
work, which ensure, in particular:

a.....Remuneration which provides all workers, as a minimum, with:

i.....Fair wages and equal remuneration for work of

equal value without distinction of any kind, in
particular women being guaranteed conditions of work
not inferior to those enjoyed by men, with equal pay
for equal work;

x x x.

The foregoing provisions impregnably institutionalize in this jurisdiction the long

honored legal truism of "equal pay for equal work." Persons who work with
substantially equal qualifications, skill, effort and responsibility, under similar
conditions, should be paid similar salaries.[22] This rule applies to the School, its
"international character" notwithstanding.
The School contends that petitioner has not adduced evidence that local-hires
perform work equal to that of foreign-hires. [23] The Court finds this argument a
little cavalier. If an employer accords employees the same position and rank, the
presumption is that these employees perform equal work. This presumption is
borne by logic and human experience. If the employer pays one employee less
than the rest, it is not for that employee to explain why he receives less or why
the others receive more. That would be adding insult to injury. The employer has
discriminated against that employee; it is for the employer to explain why the
employee is treated unfairly.

The employer in this case has failed to discharge this burden. There is no
evidence here that foreign-hires perform 25% more efficiently or effectively than
the local-hires. Both groups have similar functions and responsibilities, which
they perform under similar working conditions.

The School cannot invoke the need to entice foreign-hires to leave their domicile
to rationalize the distinction in salary rates without violating the principle of equal
work for equal pay.

"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or

recompense for services performed." Similarly, the Philippine Legal
Encyclopedia states that "salary" is the "[c]onsideration paid at regular
intervals for the rendering of services." In Songco v. National Labor Relations
Commission,[24] we said that:

"salary" means a recompense or consideration made to a person

for his pains or industry in another man's business. Whether it be
derived from "salarium," or more fancifully from "sal," the pay of the
Roman soldier, it carries with it the fundamental idea of
compensation for services rendered. (Emphasis supplied.)

While we recognize the need of the School to attract foreign-hires, salaries

should not be used as an enticement to the prejudice of local-hires. The local-
hires perform the same services as foreign-hires and they ought to be paid the
same salaries as the latter. For the same reason, the "dislocation factor" and the
foreign-hires' limited tenure also cannot serve as valid bases for the distinction in
salary rates. The dislocation factor and limited tenure affecting foreign-hires are
adequately compensated by certain benefits accorded them which are not
enjoyed by local-hires, such as housing, transportation, shipping costs, taxes and
home leave travel allowances.

The Constitution enjoins the State to "protect the rights of workers and promote
their welfare,"[25] "to afford labor full protection."[26] The State, therefore, has the
right and duty to regulate the relations between labor and capital. [27] These
relations are not merely contractual but are so impressed with public interest that
labor contracts, collective bargaining agreements included, must yield to the
common good.[28] Should such contracts contain stipulations that are contrary to
public policy, courts will not hesitate to strike down these stipulations.

In this case, we find the point-of-hire classification employed by respondent

School to justify the distinction in the salary rates of foreign-hires and local hires
to be an invalid classification. There is no reasonable distinction between the
services rendered by foreign-hires and local-hires. The practice of the School of
according higher salaries to foreign-hires contravenes public policy and, certainly,
does not deserve the sympathy of this Court.

We agree, however, that foreign-hires do not belong to the same bargaining unit
as the local-hires.

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."[29] The factors in
determining the appropriate collective bargaining unit are (1) the will of the
employees (Globe Doctrine); (2) affinity and unity of the employees' interest,
such as substantial similarity of work and duties, or similarity of compensation
and working conditions (Substantial Mutual Interests Rule); (3) prior collective
bargaining history; and (4) similarity of employment status.[30] 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.[31]

It does not appear that foreign-hires have indicated their intention to be grouped
together with local-hires for purposes of collective bargaining. The collective
bargaining history in the School also shows that these groups were always
treated separately. Foreign-hires have limited tenure; local-hires enjoy security of
tenure. Although foreign-hires perform similar functions under the same working
conditions as the local-hires, foreign-hires are accorded certain benefits not
granted to local-hires. These benefits, such as housing, transportation, shipping
costs, taxes, and home leave travel allowance, are reasonably related to their
status as foreign-hires, and justify the exclusion of the former from the latter. To
include foreign-hires in a bargaining unit with local-hires would not assure either
group the exercise of their respective collective bargaining rights.

WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby

GRANTED IN PART. The Orders of the Secretary of Labor and Employment
dated June 10, 1996 and March 19, 1997, are hereby REVERSED and SET
ASIDE insofar as they uphold the practice of respondent School of according
foreign-hires higher salaries than local-hires.

SO ORDERED.
Puno, and Pardo, JJ., concur.

Davide, Jr., C.J., (Chairman), on official leave.

Ynares-Santiago, J., on leave.

G.R. No. 179146 July 23, 2013

HOLY CHILD CATHOLIC SCHOOL, Petitioner,

vs.
HON. PATRICIA STO. TOMAS, in her official capacity as Secretary of the
Department of Labor and Employment, and PINAG-ISANG TINIG AT LAKAS
NG ANAKPAWIS – HOLY CHILD CATHOLIC SCHOOL TEACHERS AND
EMPLOYEES LABOR UNION (HCCS-TELU-PIGLAS), Respondents.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Civil
Procedure are the April 18, 2007 Decision 1 and July 31, 2007 Resolution2 of the
Court of Appeals in CA-G.R. SP No. 76175, which affirmed the December 27,
2002 Decision3 and February 13, 2003 Resolution4 of the Secretary of the
Department of Labor and Employment (SOLE) that set aside the August 10, 2002
Decision5 of the Med-Arbiter denying private respondent’s petition for certification
election.

The factual antecedents are as follows:

On May 31, 2002, a petition for certification election was filed by private
respondent Pinag-Isang Tinig at Lakas ng Anakpawis – Holy Child Catholic
School Teachers and Employees Labor Union (HCCS-TELUPIGLAS), alleging
that: PIGLAS is a legitimate labor organization duly registered with the
Department of Labor and Employment (DOLE) representing HCCS-TELU-
PIGLAS; HCCS is a private educational institution duly registered and operating
under Philippine laws; there are approximately one hundred twenty (120)
teachers and employees comprising the proposed appropriate bargaining unit;
and HCCS is unorganized, there is no collective bargaining agreement or a duly
certified bargaining agent or a labor organization certified as the sole and
exclusive bargaining agent of the proposed bargaining unit within one year prior
to the filing of the petition.6 Among the documents attached to the petition were
the certificate of affiliation with Pinag-Isang Tinig at Lakas ng Anakpawis
Kristiyanong Alyansa ng Makabayang Obrero (PIGLAS-KAMAO) issued by the
Bureau of Labor Relations (BLR), charter certificate issued by PIGLASKAMAO,
and certificate of registration of HCCS-TELU as a legitimate labor organization
issued by the DOLE.7

In its Comment8 and Position Paper,9 petitioner HCCS consistently noted that it is
a parochial school with a total of 156 employees as of June 28, 2002, broken
down as follows: ninety-eight (98) teaching personnel, twenty-five (25) non-
teaching academic employees, and thirty-three (33) non-teaching non-academic
workers. It averred that of the employees who signed to support the petition,
fourteen (14) already resigned and six (6) signed twice. Petitioner raised that
members of private respondent do not belong to the same class; it is not only a
mixture of managerial, supervisory, and rank-and-file employees – as three (3)
are vice-principals, one (1) is a department head/supervisor, and eleven (11) are
coordinators – but also a combination of teaching and non-teaching personnel –
as twenty-seven (27) are non-teaching personnel. It insisted that, for not being in
accord with Article 24510 of the Labor Code, private respondent is an illegitimate
labor organization lacking in personality to file a petition for certification election,
as held in Toyota Motor Philippines Corporation v. Toyota Motor Philippines
Corporation Labor Union;11 and an inappropriate bargaining unit for want of
community or mutuality of interest, as ruled in Dunlop Slazenger (Phils.), Inc. v.
Secretary of Labor and Employment12 and De La Salle University Medical Center
and College of Medicine v. Laguesma.13

Private respondent, however, countered that petitioner failed to substantiate its

claim that some of the employees included in the petition for certification election
holds managerial and supervisory positions.14 Assuming it to be true, it argued
that Section 11 (II),15 Rule XI of DOLE Department Order (D.O.) No. 9, Series of
1997, provided for specific instances in which a petition filed by a legitimate
organization shall be dismissed by the Med-Arbiter and that "mixture of
employees" is not one of those enumerated. Private respondent pointed out that
questions pertaining to qualifications of employees may be threshed out in the
inclusion-exclusion proceedings prior to the conduct of the certification election,
pursuant to Section 2,16 Rule XII of D.O. No. 9. Lastly, similar to the ruling in In
Re: Globe Machine and Stamping Company,17 it contended that the will of
petitioner’s employees should be respected as they had manifested their desire
to be represented by only one bargaining unit. To back up the formation of a
single employer unit, private respondent asserted that even if the teachers may
receive additional pay for an advisory class and for holding additional loads,
petitioner’s academic and non-academic personnel have similar working
conditions. It cited Laguna College v. Court of Industrial Relations, 18 as well as
the case of a union in West Negros College in Bacolod City, which allegedly
represented both academic and non-academic employees.

On August 10, 2002, Med-Arbiter Agatha Ann L. Daquigan denied the petition for
certification election on the ground that the unit which private respondent sought
to represent is inappropriate. She resolved:
A certification election proceeding directly involves two (2) issues namely:
(a) the proper composition and constituency of the bargaining unit; and (b)
the validity of majority representation claims. It is therefore incumbent upon
the Med-Arbiter to rule on the appropriateness of the bargaining unit once its
composition and constituency is questioned.

Section 1 (q), Rule I, Book V of the Omnibus Rules defines a "bargaining unit" as
a group of employees sharing mutual interests within a given employer unit
comprised of all or less than all of the entire body of employees in the employer
unit or any specific occupational or geographical grouping within such employer
unit. This definition has provided the "community or mutuality of interest" test as
the standard in determining the constituency of a collective bargaining unit. 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. The application of
this test may either result in the formation of an employer unit or in the
fragmentation of an employer unit.

In the case at bar, the employees of petitioner, may, as already suggested, quite
easily be categorized into (2) general classes: one, the teaching staff; and two,
the non-teaching-staff. Not much reflection is needed to perceive that the
community or mutuality of interest is wanting between the teaching and the non-
teaching staff. It would seem obvious that the teaching staff would find very little
in common with the non-teaching staff as regards responsibilities and function,
working conditions, compensation rates, social life and interests, skills and
intellectual pursuits, etc. These are plain and patent realities which cannot be
ignored. These dictate the separation of these two categories of employees for
purposes of collective bargaining. (University of the Philippines vs. Ferrer-Calleja,
211 SCRA 451)19

Private respondent appealed before the SOLE, who, on December 27, 2002,
ruled against the dismissal of the petition and directed the conduct of two
separate certification elections for the teaching and the non-teaching personnel,
thus:

We agree with the Med-Arbiter that there are differences in the nature of work,
hours and conditions of work and salary determination between the
teaching and non-teaching personnel of petitioner. These differences were
pointed out by petitioner in its position paper. We do not, however, agree with
the Med-Arbiter that these differences are substantial enough to warrant
the dismissal of the petition. First, as pointed out by private respondent,
"inappropriateness of the bargaining unit sought to be represented is not a
ground for the dismissal of the petition." In fact, in the cited case of University
of the Philippines v. Ferrer-Calleja, supra, the Supreme Court did not order the
dismissal of the petition but ordered the conduct of a certification election,
limiting the same among the non-academic personnel of the University of the
Philippines.

It will be recalled that in the U.P. case, there were two contending unions, the
Organization of Non-Academic Personnel of U.P. (ONAPUP) and All U.P.
Workers Union composed of both academic and nonacademic personnel of U.P.
ONAPUP sought the conduct of certification election among the rank-and-file
non-academic personnel only while the all U.P. Workers Union sought the
conduct of certification election among all of U.P.’s rank-and-file employees
covering academic and nonacademic personnel. While the Supreme Court
ordered a separate bargaining unit for the U.P. academic personnel, the Court,
however, did not order them to organize a separate labor organization among
themselves. The All U.P. Workers Union was not directed to divest itself of its
academic personnel members and in fact, we take administrative notice that the
All U.P. Workers Union continue to exist with a combined membership of U.P.
academic and non-academic personnel although separate bargaining
agreements is sought for the two bargaining units. Corollary, private respondent
can continue to exist as a legitimate labor organization with the combined
teaching and non-teaching personnel in its membership and representing both
classes of employees in separate bargaining negotiations and agreements.

WHEREFORE, the Decision of the Med-Arbiter dated 10 August 2002 is hereby

REVERSED and SET ASIDE. In lieu thereof, a new order is hereby issued
directing the conduct of two certification elections, one among the non-teaching
personnel of Holy Child Catholic School, and the other, among the teaching
personnel of the same school, subject to the usual pre-election conferences and
inclusion-exclusion proceedings, with the following choices:

A. Certification Election Among Petitioner’s Teaching Personnel:

1. Holy Child Catholic School Teachers and Employees Labor

Union; and

2. No Union.

B. Certification Election Among Petitioner’s Non-Teaching Personnel:

1. Holy Child Catholic School Teachers and Employees Labor

Union; and

2. No Union.

Petitioner is hereby directed to submit to the Regional Office of origin within ten
(10) days from receipt of this Decision, a certified separate list of its teaching and
non-teaching personnel or when necessary a separate copy of their payroll for
the last three (3) months prior to the issuance of this Decision. 20
Petitioner filed a motion for reconsideration 21 which, per Resolution dated
February 13, 2003, was denied. Consequently, petitioner filed before the CA a
Petition for Certiorari with Prayer for Temporary Restraining Order and
Preliminary Injunction.22 The CA resolved to defer action on the prayer for TRO
pending the filing of private respondent’s Comment. 23 Later, private respondent
and petitioner filed their Comment 24 and Reply,25 respectively.

On July 23, 2003, petitioner filed a motion for immediate issuance of a TRO,
alleging that Hon. Helen F. Dacanay of the Industrial Relations Division of the
DOLE was set to implement the SOLE Decision when it received a summons
and was directed to submit a certified list of teaching and non-teaching personnel
for the last three months prior to the issuance of the assailed Decision. 26 Acting
thereon, on August 5, 2003, the CA issued the TRO and ordered private
respondent to show cause why the writ of preliminary injunction should not be
granted.27 Subsequently, a Manifestation and Motion28 was filed by private
respondent, stating that it repleads by reference the arguments raised in its
Comment and that it prays for the immediate lifting of the TRO and the denial of
the preliminary injunction. The CA, however, denied the manifestation and motion
on November 21, 200329 and, upon motion of petitioner,30 granted the preliminary
injunction on April 21, 2005.31 Thereafter, both parties filed their respective
Memorandum.32

On April 18, 2007, the CA eventually dismissed the petition. As to the purported
commingling of managerial, supervisory, and rank-and-file employees in private
respondent’s membership, it held that the Toyota ruling is inapplicable because
the vice-principals, department head, and coordinators are neither supervisory
nor managerial employees. It reasoned:

x x x While it may be true that they wield power over other subordinate
employees of the petitioner, it must be stressed, however, that their functions are
not confined with policy-determining such as hiring, firing, and disciplining of
employees, salaries, teaching/working hours, other monetary and non-monetary
benefits, and other terms and conditions of employment. Further, while they may
formulate policies or guidelines, nonetheless, such is merely recommendatory in
nature, and still subject to review and evaluation by the higher executives, i.e.,
the principals or executive officers of the petitioner. It cannot also be denied that
in institutions like the petitioner, company policies have already been pre-
formulated by the higher executives and all that the mentioned employees have
to do is carry out these company policies and standards. Such being the case, it
is crystal clear that there is no improper commingling of members in the private
respondent union as to preclude its petition for certification of (sic) election. 33

Anent the alleged mixture of teaching and non-teaching personnel, the CA

agreed with petitioner that the nature of the former’s work does not coincide with
that of the latter. Nevertheless, it ruled that the SOLE did not commit grave abuse
of discretion in not dismissing the petition for certification election, since it
directed the conduct of two separate certification elections based on Our ruling in
University of the Philippines v. Ferrer-Calleja. 34

A motion for reconsideration35 was filed by petitioner, but the CA denied the
same;36 hence, this petition assigning the alleged errors as follows:

I.

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE

RULING IN THE CASE OF TOYOTA MOTOR PHILIPPINES CORPORATION
VS. TOYOTA MOTOR PHILIPPINES CORPORATION LABOR UNION (268
SCRA 573) DOES NOT APPLY IN THE CASE AT BAR DESPITE THE
[COMMINGLING] OF BOTH SUPERVISORY OR MANAGERIAL AND RANK-
AND-FILE EMPLOYEES IN THE RESPONDENT UNION;

II

THE HONORABLE COURT OF APPEALS ERRED IN ITS CONFLICTING

RULING ALLOWING THE CONDUCT OF CERTIFICATION ELECTION BY
UPHOLDING THAT THE RESPONDENT UNION REPRESENTED A
BARGAINING UNIT DESPITE ITS OWN FINDINGS THAT THERE IS NO
MUTUALITY OF INTEREST BETWEEN THE MEMBERS OF RESPONDENT
UNION APPLYING THE TEST LAID DOWN IN THE CASE OF UNIVERSITY OF
THE PHILIPPINES VS. FERRER-CALLEJA (211 SCRA 451).37

We deny.

Petitioner claims that the CA contradicted the very definition of managerial and
supervisory employees under existing law and jurisprudence when it did not
classify the vice-principals, department head, and coordinators as managerial or
supervisory employees merely because the policies and guidelines they
formulate are still subject to the review and evaluation of the principal or
executive officers of petitioner. It points out that the duties of the vice-principals,
department head, and coordinators include the evaluation and assessment of the
effectiveness and capability of the teachers under them; that such evaluation and
assessment is independently made without the participation of the higher
Administration of petitioner; that the fact that their recommendation undergoes
the approval of the higher Administration does not take away the independent
nature of their judgment; and that it would be difficult for the vice-principals,
department head, and coordinators to objectively assess and evaluate the
performances of teachers under them if they would be allowed to be members of
the same labor union.

On the other hand, aside from reiterating its previous submissions, private
respondent cites Sections 9 and 1238 of Republic Act (R.A.) No. 9481 to buttress
its contention that petitioner has no standing to oppose the petition for
certification election. On the basis of the statutory provisions, it reasons that an
employer is not a party-in-interest in a certification election; thus, petitioner does
not have the requisite right to protect even by way of restraining order or
injunction.

First off, We cannot agree with private respondent’s invocation of R.A. No. 9481.
Said law took effect only on June 14, 2007; hence, its applicability is limited to
labor representation cases filed on or after said date. 39 Instead, the law and rules
in force at the time private respondent filed its petition for certification election on
May 31, 2002 are R.A. No. 6715, which amended Book V of Presidential Decree
(P.D.) No. 442 (the Labor Code), as amended, and the Rules and Regulations
Implementing R.A. No. 6715, as amended by D.O. No. 9, which was dated May
1, 1997 but took effect on June 21, 1997.40

However, note must be taken that even without the express provision of Section
12 of RA No. 9481, the "Bystander Rule" is already well entrenched in this
jurisdiction. It has been consistently held in a number of cases that a
certification election is the sole concern of the workers, except when the
employer itself has to file the petition pursuant to Article 259 of the Labor
Code, as amended, but even after such filing its role in the certification
process ceases and becomes merely a bystander. 41 The employer clearly
lacks the personality to dispute the election and has no right to interfere at
all therein.42 This is so since any uncalled-for concern on the part of the
employer may give rise to the suspicion that it is batting for a company
union.43 Indeed, the demand of the law and policy for an employer to take a strict,
hands-off stance in certification elections is based on the rationale that the
employees’ bargaining representative should be chosen free from any
extraneous influence of the management; that, to be effective, the bargaining
representative must owe its loyalty to the employees alone and to no other. 44

Now, going back to petitioner’s contention, the issue of whether a petition for
certification election is dismissible on the ground that the labor organization’s
membership allegedly consists of supervisory and rank-and-file employees is
actually not a novel one. In the 2008 case of Republic v. Kawashima Textile Mfg.,
Philippines, Inc.,45 wherein the employer-company moved to dismiss the petition
for certification election on the ground inter alia that the union membership is a
mixture of rank-and-file and supervisory employees, this Court had
conscientiously discussed the applicability of Toyota and Dunlop in the context of
R.A. No. 6715 and D.O. No. 9, viz.:

It was in R.A. No. 875, under Section 3, that such questioned mingling was first
prohibited, to wit:

Sec. 3. Employees' right to self-organization. - Employees shall have the right to

self-organization and to form, join or assist labor organizations of their own
choosing for the purpose of collective bargaining through representatives of their
own choosing and to engage in concerted activities for the purpose of collective
bargaining and other mutual aid or protection. Individuals employed as
supervisors shall not be eligible for membership in a labor organization of
employees under their supervision but may form separate organizations of their
own. (Emphasis supplied)

Nothing in R.A. No. 875, however, tells of how the questioned mingling can affect
the legitimacy of the labor organization. Under Section 15, the only instance
when a labor organization loses its legitimacy is when it violates its duty to
bargain collectively; but there is no word on whether such mingling would also
result in loss of legitimacy. Thus, when the issue of whether the membership of
two supervisory employees impairs the legitimacy of a rank-and-file labor
organization came before the Court En Banc in Lopez v. Chronicle Publication
Employees Association, the majority pronounced:

It may be observed that nothing is said of the effect of such ineligibility upon the
union itself or on the status of the other qualified members thereof should such
prohibition be disregarded. Considering that the law is specific where it intends to
divest a legitimate labor union of any of the rights and privileges granted to it by
law, the absence of any provision on the effect of the disqualification of one of its
organizers upon the legality of the union, may be construed to confine the effect
of such ineligibility only upon the membership of the supervisor. In other words,
the invalidity of membership of one of the organizers does not make the union
illegal, where the requirements of the law for the organization thereof are,
nevertheless, satisfied and met. (Emphasis supplied)

Then the Labor Code was enacted in 1974 without reproducing Sec. 3 of R.A.
No. 875. The provision in the Labor Code closest to Sec. 3 is Article 290, which is
deafeningly silent on the prohibition against supervisory employees mingling with
rank-and-file employees in one labor organization. Even the Omnibus Rules
Implementing Book V of the Labor Code (Omnibus Rules) merely provides in
Section 11, Rule II, thus:

Sec. 11. Supervisory unions and unions of security guards to cease operation. -
All existing supervisory unions and unions of security guards shall, upon the
effectivity of the Code, cease to operate as such and their registration certificates
shall be deemed automatically cancelled. However, existing collective
agreements with such unions, the life of which extends beyond the date of
effectivity of the Code shall be respected until their expiry date insofar as the
economic benefits granted therein are concerned.

Members of supervisory unions who do not fall within the definition of managerial
employees shall become eligible to join or assist the rank and file organization.
The determination of who are managerial employees and who are not shall be
the subject of negotiation between representatives of supervisory union and the
employer. If no agreement s reached between the parties, either or both of them
may bring the issue to the nearest Regional Office for determination. (Emphasis
supplied)

The obvious repeal of the last clause of Sec. 3, R.A. No. 875 prompted the Court
to declare in Bulletin v. Sanchez that supervisory employees who do not fall
under the category of managerial employees may join or assist in the formation
of a labor organization for rank-and-file employees, but they may not form their
own labor organization.

While amending certain provisions of Book V of the Labor Code, E.O. No. 111
and its implementing rules continued to recognize the right of supervisory
employees, who do not fall under the category of managerial employees, to join a
rank- and-file labor organization.

Effective 1989, R.A. No. 6715 restored the prohibition against the questioned
mingling in one labor organization, viz.:

Sec. 18. Article 245 of the same Code, as amended, is hereby further amended
to read as follows:

Art. 245. Ineligibility of managerial employees to join any labor organization; right
of supervisory employees. Managerial employees are not eligible to join, assist or
form any labor organization. Supervisory employees shall not be eligible for
membership in a labor organization of the rank-and-file employees but may join,
assist or form separate labor organizations of their own (Emphasis supplied)

Unfortunately, just like R.A. No. 875, R.A. No. 6715 omitted specifying the exact
effect any violation of the prohibition would bring about on the legitimacy of a
labor organization.

It was the Rules and Regulations Implementing R.A. No. 6715 (1989 Amended
Omnibus Rules) which supplied the deficiency by introducing the following
amendment to Rule II (Registration of Unions):

Sec. 1. Who may join unions. - x x x Supervisory employees and security guards
shall not be eligible for membership in a labor organization of the rank-and-file
employees but may join, assist or form separate labor organizations of their own;
Provided, that those supervisory employees who are included in an existing rank-
and-file bargaining unit, upon the effectivity of Republic Act No. 6715, shall
remain in that unit x x x. (Emphasis supplied)

and Rule V (Representation Cases and Internal-Union Conflicts) of the Omnibus

Rules, viz.;
Sec. 1. Where to file. - A petition for certification election may be filed with the
Regional Office which has jurisdiction over the principal office of the employer.
The petition shall be in writing and under oath.

Sec. 2. Who may file. - Any legitimate labor organization or the employer, when
requested to bargain collectively, may file the petition.

The petition, when filed by a legitimate labor organization, shall contain, among
others:

xxxx

(c) description of the bargaining unit which shall be the employer unit unless
circumstances otherwise require; and provided further, that the appropriate
bargaining unit of the rank-and-file employees shall not include supervisory
employees and/or security guards. (Emphasis supplied)

By that provision, any questioned mingling will prevent an otherwise legitimate

and duly registered labor organization from exercising its right to file a petition for
certification election.

Thus, when the issue of the effect of mingling was brought to the fore in Toyota,
the Court, citing Article 245 of the Labor Code, as amended by R.A. No. 6715,
held:

Clearly, based on this provision, a labor organization composed of both rank-and-

file and supervisory employees is no labor organization at all. It cannot, for any
guise or purpose, be a legitimate labor organization. Not being one, an
organization which carries a mixture of rank-and-file and supervisory employees
cannot possess any of the rights of a legitimate labor organization, including the
right to file a petition for certification election for the purpose of collective
bargaining. It becomes necessary, therefore, anterior to the granting of an order
allowing a certification election, to inquire into the composition of any labor
organization whenever the status of the labor organization is challenged on the
basis of Article 245 of the Labor Code.

xxxx

In the case at bar, as respondent union's membership list contains the names of
at least twenty-seven (27) supervisory employees in Level Five positions, the
union could not, prior to purging itself of its supervisory employee members,
attain the status of a legitimate labor organization. Not being one, it cannot
possess the requisite personality to file a petition for certification election.
(Emphasis supplied)
In Dunlop, in which the labor organization that filed a petition for certification
election was one for supervisory employees, but in which the membership
included rank-and-file employees, the Court reiterated that such labor
organization had no legal right to file a certification election to represent a
bargaining unit composed of supervisors for as long as it counted rank-and-file
employees among its members.

It should be emphasized that the petitions for certification election involved in

Toyota and Dunlop were filed on November 26, 1992 and September 15, 1995,
respectively; hence, the 1989 Rules was applied in both cases.

But then, on June 21, 1997, the 1989 Amended Omnibus Rules was further
amended by Department Order No. 9, series of 1997 (1997 Amended Omnibus
Rules). Specifically, the requirement under Sec. 2(c) of the 1989 Amended
Omnibus Rules - that the petition for certification election indicate that the
bargaining unit of rank-and-file employees has not been mingled with supervisory
employees - was removed. Instead, what the 1997 Amended Omnibus Rules
requires is a plain description of the bargaining unit, thus:

Rule XI
Certification Elections

xxxx

Sec. 4. Forms and contents of petition. - The petition shall be in writing and under
oath and shall contain, among others, the following: x x x (c) The description of
the bargaining unit."

In Pagpalain Haulers, Inc. v. Trajano, the Court had occasion to uphold the
validity of the 1997 Amended Omnibus Rules, although the specific provision
involved therein was only Sec. 1, Rule VI, to wit:

Sec. 1. Chartering and creation of a local/chapter.- A duly registered federation or

national union may directly create a local/chapter by submitting to the Regional
Office or to the Bureau two (2) copies of the following: a) a charter certificate
issued by the federation or national union indicating the creation or establishment
of the local/chapter; (b) the names of the local/chapter's officers, their addresses,
and the principal office of the local/chapter; and (c) the local/ chapter's
constitution and by-laws; provided that where the local/chapter's constitution and
by-laws is the same as that of the federation or national union, this fact shall be
indicated accordingly.

All the foregoing supporting requirements shall be certified under oath by the
Secretary or the Treasurer of the local/chapter and attested to by its President.
which does not require that, for its creation and registration, a local or chapter
submit a list of its members.

Then came Tagaytay Highlands Int'l. Golf Club, Inc. v. Tagaytay Highlands
Employees Union-PTGWO in which the core issue was whether mingling affects
the legitimacy of a labor organization and its right to file a petition for certification
election. This time, given the altered legal milieu, the Court abandoned the
view in Toyota and Dunlop and reverted to its pronouncement in Lopez that
while there is a prohibition against the mingling of supervisory and rank-
and-file employees in one labor organization, the Labor Code does not
provide for the effects thereof. Thus, the Court held that after a labor
organization has been registered, it may exercise all the rights and
privileges of a legitimate labor organization. Any mingling between
supervisory and rank-and-file employees in its membership cannot affect
its legitimacy for that is not among the grounds for cancellation of its
registration, unless such mingling was brought about by
misrepresentation, false statement or fraud under Article 239 of the Labor
Code.

In San Miguel Corp. (Mandaue Packaging Products Plants) v. Mandaue

Packing Products Plants-San Miguel Packaging Products-San Miguel Corp.
Monthlies Rank-and-File Union-FFW, the Court explained that since the
1997 Amended Omnibus Rules does not require a local or chapter to
provide a list of its members, it would be improper for the DOLE to deny
recognition to said local or chapter on account of any question pertaining
to its individual members.

More to the point is Air Philippines Corporation v. Bureau of Labor

Relations, which involved a petition for cancellation of union registration
filed by the employer in 1999 against a rank-and-file labor organization on
the ground of mixed membership: the Court therein reiterated its ruling in
Tagaytay Highlands that the inclusion in a union of disqualified employees
is not among the grounds for cancellation, unless such inclusion is due to
misrepresentation, false statement or fraud under the circumstances
enumerated in Sections (a) and (c) of Article 239 of the Labor Code.

All said, while the latest issuance is R.A. No. 9481, the 1997 Amended
Omnibus Rules, as interpreted by the Court in Tagaytay Highlands, San
Miguel and Air Philippines, had already set the tone for it. Toyota and
Dunlop no longer hold sway in the present altered state of the law and the
rules.46

When a similar issue confronted this Court close to three years later, the
above ruling was substantially quoted in Samahang Manggagawa sa
Charter Chemical Solidarity of Unions in the Philippines for Empowerment
and Reforms (SMCC-Super) v. Charter Chemical and Coating
Corporation.47 In unequivocal terms, We reiterated that the alleged
inclusionof supervisory employees in a labor organization seeking to
represent the bargaining unit of rank-and-file employees does not divest it
of its status as a legitimate labor organization. 48

Indeed, Toyota and Dunlop no longer hold true under the law and rules
governing the instant case. The petitions for certification election involved
in Toyota and Dunlop were filed on November 26, 1992 and September 15,
1995, respectively; hence, the 1989 Rules and Regulations Implementing
R.A. No. 6715 (1989 Amended Omnibus Rules) was applied. In contrast,
D.O. No. 9 is applicable in the petition for certification election of private
respondent as it was filed on May 31, 2002.

Following the doctrine laid down in Kawashima and SMCC-Super, it must

be stressed that petitioner cannot collaterally attack the legitimacy of
private respondent by praying for the dismissal of the petition for
certification election:

Except when it is requested to bargain collectively, an employer is a mere

bystander to any petition for certification election; such proceeding is non-
adversarial and merely investigative, for the purpose thereof is to
determine which organization will represent the employees in their
collective bargaining with the employer. The choice of their representative
is the exclusive concern of the employees; the employer cannot have any
partisan interest therein; it cannot interfere with, much less oppose, the
process by filing a motion to dismiss or an appeal from it; not even a mere
allegation that some employees participating in a petition for certification
election are actually managerial employees will lend an employer legal
personality to block the certification election. The employer's only right in
the proceeding is to be notified or informed thereof.

The amendments to the Labor Code and its implementing rules have buttressed
that policy even more.49

Further, the determination of whether union membership comprises managerial

and/or supervisory employees is a factual issue that is best left for resolution in
the inclusion-exclusion proceedings, which has not yet happened in this case so
still premature to pass upon. We could only emphasize the rule that factual
findings of labor officials, who are deemed to have acquired expertise in matters
within their jurisdiction, are generally accorded not only with respect but even
finality by the courts when supported by substantial evidence. 50 Also, the
jurisdiction of this Court in cases brought before it from the CA via Rule 45 is
generally limited to reviewing errors of law or jurisdiction. The findings of fact of
the CA are conclusive and binding. Except in certain recognized instances, 51 We
do not entertain factual issues as it is not Our function to analyze or weigh
evidence all over again; the evaluation of facts is best left to the lower courts and
administrative agencies/quasi-judicial bodies which are better equipped for the
task.52

Turning now to the second and last issue, petitioner argues that, in view of the
improper mixture of teaching and non-teaching personnel in private respondent
due to the absence of mutuality of interest among its members, the petition for
certification election should have been dismissed on the ground that private
respondent is not qualified to file such petition for its failure to qualify as a
legitimate labor organization, the basic qualification of which is the representation
of an appropriate bargaining unit.

We disagree.

The concepts of a union and of a legitimate labor organization are different from,
but related to, the concept of a bargaining unit:

Article 212(g) of the Labor Code defines a labor organization as "any union or
association of employees which exists in whole or in part for the purpose of
collective bargaining or of dealing with employers concerning terms and
conditions of employment." Upon compliance with all the documentary
requirements, the Regional Office or Bureau shall issue in favor of the applicant
labor organization a certificate indicating that it is included in the roster of
legitimate labor organizations. Any applicant labor organization shall acquire
legal personality and shall be entitled to the rights and privileges granted by law
to legitimate labor organizations upon issuance of the certificate of registration. 53

In case of alleged inclusion of disqualified employees in a union, the proper

procedure for an employer like petitioner is to directly file a petition for
cancellation of the union’s certificate of registration due to misrepresentation,
false statement or fraud under the circumstances enumerated in Article 239 of
the Labor Code, as amended.54 To reiterate, private respondent, having been
validly issued a certificate of registration, should be considered as having
acquired juridical personality which may not be attacked collaterally.

On the other hand, a bargaining unit has been defined as a "group of employees
of a given employer, comprised of all or less than all of the entire body of
employees, which the collective interests of all the employees, consistent with
equity to the employer, indicated to be best suited to serve reciprocal rights and
duties of the parties under the collective bargaining provisions of the law." 55 In
determining the proper collective bargaining unit and what unit would be
appropriate to be the collective bargaining agency, the Court, in the seminal case
of Democratic Labor Association v. Cebu Stevedoring Company,
Inc.,56 mentioned several factors that should be considered, to wit: (1) will of
employees (Globe Doctrine); (2) affinity and unity of employees' interest, such as
substantial similarity of work and duties, or similarity of compensation and
working conditions; (3) prior collective bargaining history; and (4) employment
status, such as temporary, seasonal and probationary employees. We stressed,
however, that the test of the grouping is community or mutuality of interest,
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." 57

As the SOLE correctly observed, petitioner failed to comprehend the full import of
Our ruling in U.P. It suffices to quote with approval the apt disposition of the
SOLE when she denied petitioner’s motion for reconsideration:

Petitioner likewise claimed that we erred in interpreting the decision of the

Supreme Court in U.P. v. Ferrer-Calleja, supra. According to petitioner, the
Supreme Court stated that the non-academic rank-andfile employees of the
University of the Philippines shall constitute a bargaining unit to the exclusion of
the academic employees of the institution. Hence, petitioner argues, it sought the
creation of separate bargaining units, namely: (1) petitioner’s teaching personnel
to the exclusion of non-teaching personnel; and (2) petitioner’s non-teaching
personnel to the exclusion of teaching personnel.

Petitioner appears to have confused the concepts of membership in a bargaining

unit and membership in a union. In emphasizing the phrase "to the exclusion of
academic employees" stated in U.P. v. Ferrer-Calleja, petitioner believed that the
petitioning union could not admit academic employees of the university to its
membership. But such was not the intention of the Supreme Court.

A bargaining unit is a group of employees sought to be represented by a

petitioning union. Such employees need not be members of a union seeking the
conduct of a certification election. A union certified as an exclusive bargaining
agent represents not only its members but also other employees who are not
union members. As pointed out in our assailed Decision, there were two
contending unions in the U.P. case, namely, the Organization of Non-Academic
Personnel of U.P. (ONAPUP) and the All U.P. Worker’s Union composed of both
U.P. academic and non-academic personnel. ONAPUP sought the conduct of a
certification election among the rank-and-file non-academic personnel only, while
the All U.P. Workers Union intended to cover all U.P. rank-and-file employees,
involving both academic and non-academic personnel.

The Supreme Court ordered the "non-academic rank-and-file employees of U.P.

to constitute a bargaining unit to the exclusion of the academic employees of the
institution", but did not order them to organize a separate labor organization. In
the U.P. case, the Supreme Court did not dismiss the petition and affirmed the
order for the conduct of a certification election among the non-academic
personnel of U.P., without prejudice to the right of the academic personnel to
constitute a separate bargaining unit for themselves and for the All U.P. Workers
Union to institute a petition for certification election.
In the same manner, the teaching and non-teaching personnel of petitioner
school must form separate bargaining units.1âwphi1 Thus, the order for the
conduct of two separate certification elections, one involving teaching personnel
and the other involving non-teaching personnel. It should be stressed that in the
subject petition, private respondent union sought the conduct of a certification
election among all the rank-and-file personnel of petitioner school. Since the
decision of the Supreme Court in the U.P. case prohibits us from commingling
teaching and non-teaching personnel in one bargaining unit, they have to be
separated into two separate bargaining units with two separate certification
elections to determine whether the employees in the respective bargaining units
desired to be represented by private respondent. In the U.P. case, only one
certification election among the non-academic personnel was ordered, because
ONAPUP sought to represent that bargaining unit only. No petition for
certification election among the academic personnel was instituted by All U.P.
Workers Union in the said case; thus, no certification election pertaining to its
intended bargaining unit was ordered by the Court. 58

Indeed, the purpose of a certification election is precisely to ascertain the

majority of the employees’ choice of an appropriate bargaining unit – to be or not
to be represented by a labor organization and, if in the affirmative case, by which
one.59

At this point, it is not amiss to stress once more that, as a rule, only questions of
law may be raised in a Rule 45 petition. In Montoya v. Transmed Manila
Corporation,60 the Court discussed the particular parameters of a Rule 45 appeal
from the CA’s Rule 65 decision on a labor case, as follows:

x x x In a Rule 45 review, we consider the correctness of the assailed CA

decision, in contrast with the review for jurisdictional error that we undertake
under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law
raised against the assailed CA decision. In ruling for legal correctness, we have
to view the CA decision in the same context that the petition for certiorari it ruled
upon was presented to it; we have to examine the CA decision from the prism of
whether it correctly determined the presence or absence of grave abuse of
discretion in the NLRC decision before it, not on the basis of whether the NLRC
decision on the merits of the case was correct. In other words, we have to be
keenly aware that the CA undertook a Rule 65 review, not a review on appeal, of
the NLRC decision challenged before it. This is the approach that should be
basic in a Rule 45 review of a CA ruling in a labor case. In question form, the
question to ask is: Did the CA correctly determine whether the NLRC committed
grave abuse of discretion in ruling on the case? 61

Our review is, therefore, limited to the determination of whether the CA correctly
resolved the presence or absence of grave abuse of discretion in the decision of
the SOLE, not on the basis of whether the latter's decision on the merits of the
case was strictly correct. Whether the CA committed grave abuse of discretion is
not what is ruled upon but whether it correctly determined the existence or want
of grave abuse of discretion on the part of the SOLE.

WHEREFORE, the pet1t1on is DENIED. The April 18, 2007 Decision and July
31, 2007, Resolution of the Court of Appeals in CA-G.R. SP No. 76175, which
affirmed the December 27, 2002 Decision of the Secretary of the Department of
Labor and Employment that set aside the

August 10, 2002 Decision of the Med-Arbiter denying private respondent's

petition for certification election are hereby AFFIRMED.

SO ORDERED.

2.2 Ineligibility of Managerial Employees to Join and Labor Organization;

Right of Supervisory Employees – RA 9481, sec. 8, amending Art. 245 LC

Art. 245. Ineligibility of managerial employees to join any labor

organization; right of supervisory employees. Managerial
employees are not eligible to join, assist or form any labor
organization. Supervisory employees shall not be eligible for
membership in a labor organization of the rank-and-file employees but
may join, assist or form separate labor organizations of their own. (As
amended by Section 18, Republic Act No. 6715, March 21, 1989)

ART. 245. Ineligibility of Managerial Employees to Join any Labor Organization;

Right of Supervisory Employees. - Managerial employees are not eligible to join,
assist or form any labor organization. Supervisory employees shall not be eligible
for membership in the collective bargaining unit of the rank-and-file employees
but may join, assist or form separate collective bargaining units and/or legitimate
labor organizations of their own. The rank and file union and the supervisors'
union operating within the same establishment may join the same
federation or national union (as amended by RA 9481)

2.3 Effect of inclusion as Members of Employees Outside the Bargaining

Unit – RA 9481 sec 8 inserting 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.

CERTIFICATION ELECTION
Department Order No. 9. [21 June 1997], and
Department Order No. 40, [17 February 2003], RVIII
Republic Act No. 9481 (25 May 2007)
1. Role of Employer during certification elections –
Rep. Act No. 9481 sec 12, inserting Art. 258-A, LC

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.

2. Other kinds of recognition of employee representatives EXCLUDING

certificate elections
2.1 Direct Certification
2.2 voluntary recognition
DO 9 Rule X
RULE X
.

VOLUNTARY RECOGNITION
.
Section 1. Requirements for voluntary recognition. - In
unorganized establishments, the employer may voluntarily
recognize the representation status of a union. Within thirty
(30) days from recognition, 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:chanroblesvirtuallawlibrary

.
(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;

.
(b) The approximate number of employees in the bargaining
unit, accompanied by the names and signatures of atleast a
majority of the members of the bargaining unit supporting the
voluntary recognition; and
.
(c) A statement that there is no other legitimate labor
organization operating within the bargaining unit.

.
The joint statement shall be under oath.

.
Section2. Effect of voluntary recognition.- Within twenty-four
(24) hours upon submission of all the aforementioned
documents, the Regional Office shall enter the fact of voluntary
recognition into the records of the union, copy of such entry
immediately furnished the Bureau. From the time of recording,
the union shall enjoy the rights, privileges and obligations of an
exclusive bargaining representative.

2.3 consent election

DO 9 R1, S(ee)
(ee) "Consent Election" means the election voluntarily agreed
upon by the parties, with or without the intervention of the
Department, to determine the issue of majority representation
of all the workers in the appropriate collective bargaining unit.

DO40 S8 R10
Section 10. Consent Election; Agreement. - In case the contending unions agree
to a consent election, the Med-Arbiter shall not issue a formal order calling for the
conduct of certification election, but shall enter the fact of the agreement in the
minutes of the hearing. The minutes of the hearing shall be signed by the parties
and attested to by the Med-Arbiter. The Med-Arbiter shall, immediately thereafter,
forward the records of the petition to the Regional Director or his/her authorized
representative for the determination of the Election Officer by the contending
unions through raffle. The first pre-election conference shall be scheduled within
ten (10) days from the date of entry of agreement to conduct consent election.

Effect of Consent Election: DO40R8 S23

Section 23. Effects of consent election. - Where a petition for certification election
had been filed, and upon the intercession of the Med-Arbiter, the parties agree to
hold a consent election, the results thereof shall constitute a bar to the holding of
a certification election for one (1) year from the holding of such consent election.
Where an appeal has been filed from the results of the consent election, the
running of the one-year period shall be suspended until the decision on appeal
has become final and executory.

Where no petition for certification election was filed but the parties themselves
agreed to hold a consent election with the intercession of the Regional Office, the
results thereof shall constitute a bar to another petition for certification election.

3. Certification election and procedure

Art. 256-257

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 before the
Department of Labor and Employment within the sixty-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.

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. (As amended by Section
23, Republic Act No. 6715, March 21, 1989)

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. (As amended by Section 24, Republic Act No. 6715,
March 21, 1989)

B5 R5 S1-9, IRR
RULE V
Representation Cases and Internal-Union Disputes
SECTION 1. Where to file. — A petition for certification election shall
be filed with the Regional Office which has jurisdiction over the
principal office of the petitioner. The petition shall be in writing and
under oath.cralaw
SECTION 2. Who may file. — Any legitimate labor organization or the
employer, when requested to bargain collectively, may file the
petition.cralaw
The petition, when filed by a legitimate labor organization shall
contain, among others:
(a) The name of petitioner and its address and affiliation, if any;
(b) Name, address and nature of the employer's business;
(c) Description of the bargaining unit which shall be the employer unit
unless circumstances otherwise require; and provided further, that the
appropriate bargaining unit of the rank-and-file employees shall not
include supervisory employees and/or security guards;
(d) Appropriate number of the employees in the alleged bargaining
unit;
(e) Names and addresses of other legitimate labor organizations in the
bargaining unit;
(f) In an organized establishment, the signatures of at least twenty-
five (25%) percent of all employees in the appropriate bargaining unit;
and
(g) Other relevant facts.cralaw
When the petition is filed by an employer, it shall contain, among
others:
(a) The name, address and general nature of the employer's business;
(b) Names and addresses of the legitimate labor organizations
involved;
(c) Approximate number of the employees in the appropriate
bargaining unit;
(d) Description of the bargaining unit which shall be the employer unit
unless circumstances otherwise required; and provided further, that
the appropriate bargaining unit of the rank-and-file employees shall
not include supervisory employees and/or security guards;
(e) Other relevant facts.cralaw
SECTION 3. When to file. — In the absence of a collective bargaining
agreement duly registered in accordance with Article 231 of the Code,
a petition for certification election may be filed at any time. However,
no certification election may be held within one year from the date of
issuance of a final certification election result. Neither may a
representation question be entertained if, before the filing of a petition
for certification election, a bargaining deadlock to which an incumbent
or certified bargaining agent is a party had been submitted to
conciliation or arbitration or had become the subject of a valid notice
of strike or lockout.cralaw
If a collective bargaining agreement has been duly registered in
accordance with Article 231 of the Code, a petition for certification
election or a motion for intervention can only be entertained within
sixty (60) days prior to the expiry date of such agreement.cralaw
SECTION 4. Effects of early agreements. — The representation case
shall not, however, be adversely affected by a collective bargaining
agreement registered before or during the last sixty (60) days of a
subsisting agreement or during the pendency of the representation
case.cralaw
SECTION 5. Where to file motion for intervention. — The motion for
intervention in certification election proceedings shall be filed before
the Med-Arbiter assigned to the case. The mere filing of said motion,
however, will not suspend the holding of the certification election
without an order issued by the Med-Arbiter.cralaw
SECTION 6. Procedure. — Upon receipt of a petition, the Regional
Director shall assign the case to a Med-Arbiter for appropriate action.
The Med-Arbiter, upon receipt of the assigned petition, shall have
twenty (20) working days from submission of the case for resolution
within which to dismiss or grant the petition.cralaw
In a petition filed by a legitimate organization involving an
unorganized establishment, the Med-Arbiter shall immediately order
the conduct of a certification election.cralaw
In a petition involving an organized establishment or enterprise where
the majority status of the incumbent collective bargaining union is
questioned through a verified petition by a legitimate labor
organization, the Med-Arbiter shall immediately order the certification
election by secret ballot if the petition is filed during the last sixty (60)
days of the collective bargaining agreement and supported by the
written consent of at least twenty-five percent (25%) of all the
employees in the bargaining unit. Any petition filed before or after the
sixty-day freedom period shall be dismissed outright. The twenty-five
percent (25%) requirement shall be satisfied upon the filing of the
petition, otherwise the petition shall be dismissed.cralaw
The sixty-day freedom period based on the original collective
bargaining agreement shall not be affected by any amendment,
extension or renewal of the collective bargaining agreement for
purposes of certification election.cralaw
The decision calling for the conduct of an election shall contain the
following:
(a) Names of the contending unions;
(b) Name of the employer;
(c) Description of the bargaining unit, and
(d) List of eligible voters which shall be based on the payroll three (3)
months prior to the filing of the petition for certification election.cralaw
The certification election shall be held within twenty (20) calendar
days from receipt of the order by the parties.cralaw
SECTION 7. Appeal. — Any aggrieved party may appeal the order of
the Med-Arbiter to the Secretary on the ground that the rules and
regulations or parts thereof established by the Secretary for the
conduct of election have been violated.cralaw
The appeal shall specifically state the grounds relied upon by the
appellant with the supporting memorandum.cralaw
SECTION 8. Where to file appeal. — The appeal, which shall be under
oath and copy furnished the appellee, shall be filed in the Regional
Office where the case originated.cralaw
SECTION 9. Period of Appeal. — The appeal shall be filed within ten
(10) calendar days from receipt of the order by the appellant. Any
opposition thereto may be filed within ten (10) calendar days from
receipt of the appeal. The Regional Director shall within five (5)
calendar days forward the entire records of the case to the Office of
the Secretary.cralaw

DO40, R 8 and 9
RULE VIII
CERTIFICATION ELECTION
Section 1. Who may file. -Any legitimate labor organization may file a petition for
certification election.
When requested to bargain collectively, an employer may file a petition for
certification election with the Regional Office. If there is no existing registered
collective bargaining agreement in the bargaining unit, the Regional Office shall,
after hearing, order the conduct of a certification election.
Section 2. Where to file. - A petition for certification election shall be filed with the
Regional Office which issued the petitioning union's certificate of
registration/certificate of creation of chartered local.
The petition shall be heard and resolved by the Med-Arbiter.
Where two or more petitions involving the same bargaining unit are filed in one
Regional Office, the
same shall be automatically consolidated with the Med-Arbiter who first acquired
jurisdiction. Where the
petitions are filed in different Regional Offices, the Regional Office in which the
petition was first filed
shall exclude all others; in which case, the latter shall indorse the petition to the
former for
consolidation.
Section 3. When to file. - A petition for certification election may be filed anytime,
except:
(a) when a fact of voluntary recognition has been entered or a valid certification,
consent or run-off
election has been conducted within the bargaining unit within one (1) year prior to
the filing of the
petition for certification election. Where an appeal has been filed from the order
of the Med-Arbiter
certifying the results of the election, the running of the one year period shall be
suspended until the
decision on the appeal has become final and executory;
(b) when the duly certified union has commenced and sustained negotiations in
good faith with the
employer in accordance with Article 250 of the Labor Code within the one year
period referred to in the
immediately preceding paragraph;
(c) when a bargaining deadlock to which an incumbent or certified bargaining
agent is a party had been
submitted to conciliation or arbitration or had become the subject of a valid notice
of strike or lockout;
(d) when a collective bargaining agreement between the employer and a duly
recognized or certified
bargaining agent has been registered in accordance with Article 231 of the Labor
Code. Where such
collective bargaining agreement is registered, the petition may be filed only within
sixty (60) days prior
to its expiry.
Section 4. Form and contents of petition. - The petition shall be in writing, verified
under oath by the
president of petitioning labor organization. Where the petition is filed by a
federation or national union, it
shall verified under oath by the president or its duly authorized representative.
The petition shall contain
the following:
(a) the name of petitioner, its address, and affiliation if appropriate, the date and
number of its
certificate of registration. If the petition is filed by a federation or national union,
the date and number of
the certificate of registration or certificate of creation of chartered local;
(b) the name, address and nature of employer's business;
(c) the description of the bargaining unit;
(d) the approximate number of employees in the bargaining unit;
(e) the names and addresses of other legitimate labor unions in the bargaining
unit;
(f) a statement indicating any of the following circumstances:
1) that the bargaining unit is unorganized or that there is no registered collective
bargaining agreement covering the employees in the bargaining unit;
2) if there exists a duly registered collective bargaining agreement, that the
petition is
filed within the sixty-day freedom period of such agreement; or
3) if another union had been previously recognized voluntarily or certified in a
valid
certification, consent or run-off election, that the petition is filed outside the one-
year
period from entry of voluntary recognition or conduct of certification or run-off
election
and no appeal is pending thereon.
(g) in an organized establishment, the signature of at least twenty-five percent
(25%) of all employees
in the appropriate bargaining unit shall be attached to the petition at the time of
its filing; and
(h) other relevant facts.
Section 5. Raffle of the case. - Upon the filing of the petition, the Regional
Director or any of his/her
authorized representative shall allow the party filing the petition to personally
determine the Med-Arbiter
assigned to the case by means of a raffle. Where there is only one Med-Arbiter in
the region, the raffle
shall be dispensed with and the petition shall be assigned to him/her.
Section 6. Notice of preliminary conference. - Immediately after the raffle of the
case or receipt of
the petition, the same shall be transmitted to the Med-Arbiter, who shall in the
same instance prepare
and serve upon the petitioning party a notice for preliminary conference. The first
preliminary
conference shall be scheduled within ten (10) days from receipt of the petition.
Within three (3) days from receipt of the petition, the Med-Arbiter shall cause the
service of notice for
preliminary conference upon the employer and incumbent bargaining agent in the
subject bargaining
unit directing them to appear before him/her on a date, time and place specified.
A copy of the notice of
preliminary conference and petition for certification election shall be posted in at
least two conspicuous
places in the establishment.
Section 7. Forced Intervenor. - The incumbent bargaining agent shall
automatically be one of the
choices in the certification election as forced intervenor.
Section 8. Motion for Intervention. - When a petition for certification election was
filed in an organized
establishment, any legitimate labor union other than the incumbent bargaining
agent operating within
the bargaining unit may file a motion for intervention with the Med-Arbiter during
the freedom period of
the collective bargaining agreement. The form and contents of the motion shall
be the same as that of a
petition for certification election.
In an unorganized establishment, the motion shall be filed at any time prior to the
decision of the MedArbiter.
The form and contents of the motion shall likewise be the same as that of a
petition for
certification election. The motion for intervention shall be resolved in the same
decision issued in the
petition for certification election.
Section 9. Preliminary Conference; Hearing. - The Med-Arbiter shall conduct a
preliminary
conference and hearing within ten (10) days from receipt of the petition to
determine the following:
(a) the bargaining unit to be represented;
(b) contending labor unions;
(c) possibility of a consent election;
(d) existence of any of the bars to certification election under Section 3 of this
Rule;
and
(e) such other matters as may be relevant for the final disposition of the case.
Section 10. Consent Election; Agreement. - In case the contending unions agree
to a consent
election, the Med-Arbiter shall not issue a formal order calling for the conduct of
certification election,
but shall enter the fact of the agreement in the minutes of the hearing. The
minutes of the hearing shall
be signed by the parties and attested to by the Med-Arbiter. The Med-Arbiter
shall, immediately
thereafter, forward the records of the petition to the Regional Director or his/her
authorized
representative for the determination of the Election Officer by the contending
unions through raffle. The
first pre-election conference shall be scheduled within ten (10) days from the
date of entry of agreement
to conduct consent election.
Section 11. Number of Hearings; Pleadings. - If the contending unions fail to
agree to a consent
election during the preliminary conference, the Med-Arbiter may conduct as
many hearings as he/she
may deem necessary, but in no case shall the conduct thereof exceed fifteen (15)
days from the date of
the scheduled preliminary conference/hearing, after which time the petition shall
be considered
submitted for decision. The Med-Arbiter shall have control of the proceedings.
Postponements or
continuances shall be discouraged.
Within the same 15-day period within which the petition is heard, the contending
labor unions may file
such pleadings as they may deem necessary for the immediate resolution of the
petition. Extensions of
time shall not be entertained. All motions shall be resolved by the Med-Arbiter in
the same order or
decision granting or denying the petition.
Section 12. Failure to appear despite notice. - The failure of any party to appear
in the hearing(s)
when notified or to file its pleadings shall be deemed a waiver of its right to be
heard. The Med-Arbiter,
however, when agreed upon by the parties for meritorious reasons may allow the
cancellation of
scheduled hearing(s). The cancellation of any scheduled hearing(s) shall not be
used as a basis for
extending the 15-day period within which to terminate the same.
Section 13. Order/Decision on the petition. - Within ten (10) days from the date of
the last hearing,
the Med-Arbiter shall issue a formal order granting the petition or a decision
denying the same. In
organized establishments, however, no order or decision shall be issued by the
Med-Arbiter during the
freedom period.
The order granting the conduct of a certification election shall state the following:
(a) the name of the employer or establishment;
(b) the description of the bargaining unit;
(c) a statement that none of the grounds for dismissal enumerated in the
succeeding paragraph exists;
(d) the names of contending labor unions which shall appear as follows:
petitioner union/s in the order
in which their petitions were filed, forced intervenor, and no union; and
(e) a directive upon the employer and the contending union(s) to submit within
ten (10) days from
receipt of the order, the certified list of employees in the bargaining unit, or where
necessary, the
payrolls covering the members of the bargaining unit for the last three (3) months
prior to the issuance
of the order.
Section 14. Denial of the petition; Grounds. - The Med-Arbiter may dismiss the
petition on any of the
following grounds:
(a) the petitioner is not listed in the Department's registry of legitimate labor
unions or that its legal
personality has been revoked or cancelled with finality in accordance with Rule
XIV of these Rules;
(b) the petition was filed before or after the freedom period of a duly registered
collective bargaining
agreement; provided that the sixty-day period based on the original collective
bargaining agreement
shall not be affected by any amendment, extension or renewal of the collective
bargaining agreement;
(c) the petition was filed within one (1) year from entry of voluntary recognition or
a valid certification,
consent or run-off election and no appeal on the results of the certification,
consent or run-off election is
pending;
(d) 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.c of this Rule, or
there exists a bargaining deadlock 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 a party;
(e) in case of an organized establishment, failure to submit the twenty-five
percent (25%) support
requirement for the filing of the petition for certification election.
Section 15. Prohibited grounds for the denial/suspension of the petition. - All
issues pertaining to
the existence of employer-employee relationship, eligibility or mixture in union
membership raised
before the Med-Arbiter during the hearing(s) and in the pleadings shall be
resolved in the same order or
decision granting or denying the petition for certification election. Any question
pertaining to the validity
of petitioning union's 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 MedArbiter
in the petition for certification election, unless the petitioning union is not found in
the
Department's roster of legitimate labor organizations or an existing collective
bargaining agreement is
unregistered with the Department.
Section 16. Release of Order/Decision within ten (10) days from the last hearing,
- The MedArbiter
shall release his/her order or decision granting or denying the petition personally
to the parties
on an agreed date and time.
Section 17. Appeal. - The order granting the conduct of a certification election in
an unorganized
establishment shall not be subject to appeal. Any issue arising therefrom may be
raised by means of
protest on the conduct and results of the certification election.
The order granting the conduct of a certification election in an organized
establishment and the decision
dismissing or denying the petition, whether in an organized or unorganized
establishment, may be
appealed to the Office of the Secretary within ten (10) days from receipt thereof.
The appeal shall be verified 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.
Section 18. Where to file 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 twenty-four (24) hours from 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.
Section 19. Finality of Order/Decision. - Where no appeal is filed within the ten-
day period, the Med-
Arbiter shall enter the finality of the order/decision in the records of the case and
cause the transmittal
of the records of the petition to the Regional Director.
Section 20. Period to Reply. - A reply to the appeal may be filed by any party to
the petition within ten
(10) days from receipt of the memorandum of appeal. The reply shall be filed
directly with the Office of
the Secretary.
Section 21. Decision of the Secretary. - The Secretary shall have fifteen (15)
days from receipt of the
entire records of the petition 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 (10)
days from receipt thereof
by the parties. No motion for reconsideration of the decision shall be entertained.
Section 22. Transmittal of records to the Regional Office. - Within forty-eight (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 implementation. Implementation of
the decision shall not
be stayed unless restrained by the appropriate court.
Section 23. Effects of consent election. - Where a petition for certification election
had been filed,
and upon the intercession of the Med-Arbiter, the parties agree to hold a consent
election, the results
thereof shall constitute a bar to the holding of a certification election for one (1)
year from the holding of
such consent election. Where an appeal has been filed from the results of the
consent election, the
running of the one-year period shall be suspended until the decision on appeal
has become final and
executory.
Where no petition for certification election was filed but the parties themselves
agreed to hold a consent
election with the intercession of the Regional Office, the results thereof shall
constitute a bar to another
petition for certification election.
Section 24. Effects of early agreements. - The representation case shall not be
adversely affected by
a collective bargaining agreement registered before or during the last sixty (60)
days of a subsisting
agreement or during the pendency of the representation case.
Section 25. Non-availability of Med-Arbiter. - Where there is no Med-Arbiter
available in the Regional
Office by reason of vacancy, prolonged absence, or excessive workload as
determined by the Regional
Director, he/she shall transmit the entire records of the case to the Bureau, which
shall within forty-eight
(48) hours from receipt assign the case to any Med-Arbiter from any of the
Regional Offices or from the
Bureau.

RULE IX
CONDUCT OF CERTIFICATION ELECTION
Section 1. Raffle of the case. - Within twenty-four (24) 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 control of the pre-election conference and election proceedings.
Section 2. Pre-election conference. - Within twenty-four (24) hours from receipt of
the assignment for the conduct of a certification election, the Election Officer
shall cause the issuance of notice of preelection conference upon the contending
unions and the employer, which shall be scheduled within ten (10) days from
receipt of the assignment.
The pre-election conference shall set the mechanics for the election and shall
determine, among others, the following:
(a) date, time and place of the election, which shall not be later than forty-five
(45) days
from the date of the first pre-election conference, and shall be on a regular
working day
and within the employer's premises, unless circumstances require otherwise;
(b) list of eligible and challenged voters;
(c) number and location of polling places or booths and the number of ballots to
be
prepared with appropriate translations, if necessary;
(d) name of watchers or representatives and their alternates for each of the
parties
during election;
(e) mechanics and guidelines of the election.
Section 3. Waiver of right to be heard. - Failure of any party to appear during the
pre-election
conference despite notice shall be considered as a waiver to be present and to
question or object to
any of the agreements reached in said pre-election conference. Nothing herein,
however, shall deprive
the non-appearing party or the employer of its right to be furnished notices of
subsequent pre-election
conferences and to attend the same.
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 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 thirty (30) days from the
date of the first hearing.
Section 5. Qualification of voters; inclusion-exclusion. - 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. 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 a
certification election shall be
considered a qualified voter, unless his/her dismissal was declared valid in a final
judgment at the time
of the conduct of the certification election.
In case of disagreement over the voters' list or 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 Sections 10 and 11 of this Rule.
Section 6. Posting of Notices. - The Election Officer shall cause the posting of
notice of election at
least ten (10) days before the actual date of the election in two (2) most
conspicuous places in the
company premises. The notice shall contain:
(a) the date and time of the election;
(b) names of all contending unions;
(c) the description of the bargaining unit and the list of eligible and challenged
voters.
The posting of the notice of election, the information required to be included
therein and the duration of
posting cannot be waived by the contending unions or the employer.
Section 7. Secrecy and sanctity of the ballot. - To ensure secrecy of the ballot,
the Election Officer,
together with the authorized representatives of the contending unions and the
employer, shall before
the start of the actual voting, inspect the polling place, the ballot boxes and the
polling booths.
Section 8. Preparation of ballots. - The Election Officer shall prepare the ballots
in English and
Filipino or the local dialect, corresponding to the number of voters and a
reasonable number of extra
ballots. All ballots shall be signed at the back by the Election Officer and
authorized representative of
each of the contending unions and employer. Failure or refusal to sign the ballots
shall be considered a
waiver thereof and the Election Officer shall enter the fact of such refusal or
failure in the records of the
case as well as the reason for the refusal or failure to sign.
Section 9. Marking of votes. - The voter must put a cross ( x ) or check ( ü) mark
in the square
opposite the name of the union of his choice or "No Union" if he/she 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/her another ballot.
Section 10. Challenging of votes. - 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 employer-employee relationship between the voter and the
company;
(b) that the voter is not a member of the appropriate bargaining unit which
petitioner seeks to represent.
Section 11. Procedure in the challenge of votes. - When a vote is properly
challenged, the Election
Officer shall place the ballot in an envelope which shall be sealed in the presence
of the voter and the
representatives of the contending unions and employer. The Election Officer shall
indicate on the
envelope the voter's name, the union or employer 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 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
envelopes shall be opened and the question of eligibility shall be passed upon
only if the number of
segregated voters will materially alter the results of the election.
Section 12. 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.
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 in the minutes of
the election
proceedings. Protests not so raised are deemed waived.
The protesting party must formalize its protest with the Med-Arbiter, with specific
grounds, arguments
and evidence, within five (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.
Section 14. 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 representatives of the contending unions and transmitted
to the Med-Arbiter,
together with the minutes and results of the election, within twenty-four (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
fifteen (15) days from the conduct thereof.
Section 15. 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 16. 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 (5) days from the day of the election,
provided no protest is
recorded in the minutes of the election.
Section 17. 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.
Section 18. 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 six (6)
months from date of
declaration of failure of election.
Section 19. Action on the motion. - Within twenty-four (24) hours from receipt of
the motion, the
Election Officer shall immediately schedule the conduct of another certification or
consent election
within fifteen (15) days from receipt of the motion and cause the posting of the
notice of certification
election at least ten (10) days prior to the scheduled date of election in two (2)
most conspicuous
places in the establishment. The same guidelines and list of voters shall be used
in the election.
Section 20. Proclamation and certification of the result of the election. - Within
twenty-four (24)
hours from final canvass of votes, there being a valid election, the Election
Officer shall transmit the
records of the case to the Med-Arbiter who shall, within the same period from
receipt of the minutes
and results of election, issue an order proclaiming the results of the election and
certifying the union
which obtained a majority of the valid votes cast as the sole and exclusive
bargaining agent in the
subject bargaining unit, under any of the following conditions:
(a) no protest was filed or, even if one was filed, the same was not perfected
within the five-day period
for perfection of the protest;
(b) no challenge or eligibility issue was raised or, even if one was raised, the
resolution of the same will
not materially change the results of the elections.
The winning union shall have the rights, privileges and obligations of a duly
certified collective
bargaining agent from the time the certification is issued.
Where majority of the valid votes cast results in "No Union" obtaining the
majority, the Med-Arbiter shall
declare such fact in the order.

RA 9481, secs 10 and 11

SEC. 10. Article 256 of the Labor Code is hereby amended to read as follows:

"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.

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."

SEC. 11. Article 257 of the Labor Code is hereby amended to read as follows:

"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."

Definition and nature of Certification Election

B5 R1 S1(x), IRR
(x) "Certification Election" means the 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.cralaw

DO9 R1 S9(dd)
(dd) "Certification Election" means the process of determining
through secret ballot the sole and exclusive bargaining
representative of the employees in an appropriate bargaining
unit, for purposes of collective bargaining.
D040 R1 S1(d)
(d) "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
employees in the employer unit or any specific occupational or geographical
grouping within such employer unit.

(h) "Certification 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 purposes of collective bargaining
or negotiation. A certification election is ordered by the Department, while a
consent election is voluntarily agreed upon by the parties, with or without the
intervention by the Department.

Exclusive Bargaining representative: DO40 R1 S1(t)

(t) "Exclusive Bargaining Representative" 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.

NUHRWRAIN – Manila Pavilion Hotel Chapter vs. Sec. of Labor, BLR, et al.,
GR No. 181531, 31 July 2009
CARPIO MORALES, J.:
National Union of Workers in Hotels, Restaurants and Allied Industries
Manila Pavilion Hotel Chapter (NUWHRAIN-MPHC), herein petitioner, seeks the
reversal of the Court of Appeals November 8, 2007 Decision [1] and of the
Secretary of Labor and Employments January 25, 2008 Resolution [2] in OS-A-9-
52-05 which affirmed the Med-Arbiters Resolutions dated January 22, 2007 [3] and
March 22, 2007.[4]

A certification election was conducted on June 16, 2006 among the rank-and-file
employees of respondent Holiday Inn Manila Pavilion Hotel (the Hotel) with the
following results:

EMPLOYEES IN VOTERS LIST = 353

TOTAL VOTES CAST = 346
NUWHRAIN-MPHC = 151
HIMPHLU = 169
NO UNION = 1
SPOILED = 3
SEGREGATED = 22

In view of the significant number of segregated votes, contending unions,

petitioner, NUHWHRAIN-MPHC, and respondent Holiday Inn Manila Pavillion
Hotel Labor Union (HIMPHLU), referred the case back to Med-Arbiter Ma.
Simonette Calabocal to decide which among those votes would be opened and
tallied. Eleven (11) votes were initially segregated because they were cast
by dismissed employees, albeit the legality of their dismissal was still pending
before the Court of Appeals. Six other votes were segregated because the
employees who cast them were already occupying supervisory positions at the
time of the election. Still five other votes were segregated on the ground that they
were cast by probationary employees and, pursuant to the existing Collective
Bargaining Agreement (CBA), such employees cannot vote. It bears noting early
on, however, that the vote of one Jose Gatbonton (Gatbonton), a probationary
employee, was counted.

By Order of August 22, 2006, Med-Arbiter Calabocal ruled for the opening of 17
out of the 22 segregated votes, specially those cast by the 11 dismissed
employees and those cast by the six supposedly supervisory employees of the
Hotel.

Petitioner, which garnered 151 votes, appealed to the Secretary of Labor

and Employment (SOLE), arguing that the votes of the probationary employees
should have been opened considering that probationary employee Gatbontons
vote was tallied. And petitioner averred that respondent HIMPHLU, which
garnered 169 votes, 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 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.

By the assailed Resolution of January 22, 2007, the Secretary of Labor and
Employment (SOLE), through then Acting Secretary Luzviminda Padilla, affirmed
the Med-Arbiters Order. It held that pursuant to Section 5, Rule IX of the
Omnibus Rules Implementing the Labor Code on exclusion and inclusion of
voters in a certification election, the probationary employees cannot vote, as at
the time the Med-Arbiter issued on August 9, 2005 the Order granting the petition
for the conduct of the certification election, the six probationary employees were
not yet hired, hence, they could not vote.

The SOLE further held that, with respect to the votes cast by the 11
dismissed employees, they could be considered since their dismissal was still
pending appeal.

As to the votes cast by the six alleged supervisory employees, the SOLE
held that their votes should be counted since their promotion took effect months
after the issuance of the above-said August 9, 2005 Order of the Med-Arbiter,
hence, they were still considered as rank-and-file.

Respecting Gatbontons vote, the SOLE ruled that the same could be the
basis to include the votes of the other probationary employees, as the records
show that during the pre-election conferences, there was no disagreement as to
his inclusion in the voters list, and neither was it timely challenged when he voted
on election day, hence, the Election Officer could not then segregate his vote.
 The SOLE further ruled that even if the 17 votes of the dismissed and
supervisory employees were to be counted and presumed to be in favor of
petitioner, still, the same would not suffice to overturn the 169 votes garnered by
HIMPHLU.

In fine, the SOLE concluded that the certification of HIMPHLU as the

exclusive bargaining agent was proper.

Petitioners motion for reconsideration having been denied by the SOLE by

Resolution of March 22, 2007, it appealed to the Court of Appeals.

By the assailed Decision promulgated on November 8, 2007, the appellate

court affirmed the ruling of the SOLE. It held that, contrary to petitioners
assertion, the ruling in Airtime Specialist, Inc. v. Ferrer Calleja [5] stating that in a
certification election, all rank-and-file employees in the appropriate bargaining
unit, whether probationary or permanent, are entitled to vote, is inapplicable to
the case at bar. For, the appellate court continued, the six probationary
employees were not yet employed by the Hotel at the time the August 9,
2005 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.

Respecting Gatbontons vote, the appellate court upheld the SOLEs finding that
since it was not properly challenged, its inclusion could no longer be questioned,
nor could it be made the basis to include the votes of the six probationary
employees.

The appellate court brushed aside petitioners contention that the opening of the
17 segregated votes would materially affect the results of the election as there
would be the likelihood of a run-off election in the event none of the contending
unions receive a majority of the valid votes cast. It held that the majority
contemplated in deciding which of the unions in a certification election is the
winner refers to the majority of valid votes cast, not the simple majority of votes
cast, hence, the SOLE was correct in ruling that even if the 17 votes were in
favor of petitioner, it would still be insufficient to overturn the results of the
certification election.

Petitioners motion for reconsideration having been denied by Resolution of

January 25, 2008, the present recourse was filed.

Petitioners contentions may be summarized as follows:

1. Inclusion of Jose Gatbontons vote but excluding the vote of the six
other probationary employees violated the principle of equal protection
 and is not in accord with the ruling in Airtime Specialists, Inc. v. Ferrer-
Calleja;
2. The time of reckoning for purposes of determining when the
probationary employees can be allowed to vote is not August 9, 2005 the
date of issuance by Med-Arbiter Calabocal of the Order granting the
conduct of certification elections, but March 10, 2006 the date the SOLE
Order affirmed the Med-Arbiters Order.

3. Even if the votes of the six probationary employees were included,

still, HIMPHLU could not be considered as having obtained a majority of
the valid votes cast as the opening of the 17 ballots would increase the
number of valid votes from 321 to 338, hence, for HIMPHLU to be
certified as the exclusive bargaining agent, it should have garnered at
least 170, not 169, votes.

Petitioner justifies its not challenging Gatbontons vote because it was

precisely its position that probationary employees should be allowed to vote. It
thus avers that justice and equity dictate that since Gatbontons vote was
counted, then the votes of the 6 other probationary employees should likewise be
included in the tally.

Petitioner goes on to posit that the word order in Section 5, Rule 9 of

Department Order No. 40-03 reading [A]ll 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 certification election shall be
allowed to vote refers to an order which has already become final and executory,
in this case the March 10, 2002 Order of the SOLE.

Petitioner thus concludes that if March 10, 2006 is the reckoning date for
the determination of the eligibility of workers, then all the segregated votes cast
by the probationary employees should be opened and counted, they having
already been working at the Hotel on such date.

Respecting the certification of HIMPHLU as the exclusive bargaining

agent, petitioner argues that the same was not proper for if the 17 votes would be
counted as valid, then the total number of votes cast would have been 338, not
321, hence, the majority would be 170; as such, the votes garnered by HIMPHLU
is one vote short of the majority for it to be certified as the exclusive bargaining
agent.

The relevant issues for resolution then are first, whether employees
on probationary status at the time of the certification elections should be
allowed to vote, and second, whether HIMPHLU was able to obtain the
required majority for it to be certified as the exclusive bargaining agent.

On the first issue, the Court rules in the affirmative.

 The inclusion of Gatbontons vote was proper not because it was not
questioned but because probationary employees have the right to vote in a
certification election. The votes of the six other probationary employees should
thus also have been counted. As Airtime Specialists, Inc. v. Ferrer-Calleja holds:

In a certification election, all rank and file employees in the

appropriate bargaining unit, whether probationary or
permanent are entitled to vote. This principle is clearly stated in
Art. 255 of the Labor Code which states that the labor organization
designated or selected by the majority of the employees in an
appropriate bargaining unit shall be the exclusive representative of
the employees in such unit for purposes of collective bargaining.
Collective bargaining covers all aspects of the employment relation
and the resultant CBA negotiated by the certified union binds all
employees in the bargaining unit. Hence, all rank and file
employees, probationary or permanent, have a substantial interest
in the selection of the bargaining representative. 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. (Emphasis supplied)

Rule II, Sec. 2 of Department Order No. 40-03, series of 2003, which
amended Rule XI of the Omnibus Rules Implementing the Labor Code, provides:

Rule II

Section 2. Who may join labor unions and workers'

associations. - All persons employed in commercial, industrial and
agricultural enterprises, including employees of government owned
or controlled corporations without original charters established
under the Corporation Code, as well as employees of religious,
charitable, medical or educational institutions whether operating for
profit or not, shall have the right to self-organization and to form,
join or assist labor unions for purposes of collective bargaining:
provided, however, that supervisory employees shall not be eligible
for membership in a labor union of the rank-and-file employees but
may form, join or assist separate labor unions of their own.
Managerial employees shall not be eligible to form, join or assist
any labor unions for purposes of collective bargaining. Alien
employees with valid working permits issued by the Department
may exercise the right to self-organization and join or assist labor
unions for purposes of collective bargaining if they are nationals of
 a country which grants the same or similar rights to Filipino
workers, as certified by the Department of Foreign Affairs.

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.

All other workers, including ambulant, intermittent and other

workers, the self-employed, rural workers and those without any
definite employers may form labor organizations for their mutual aid
and protection and other legitimate purposes except collective
bargaining. (Emphasis supplied)

The provision in the CBA disqualifying probationary employees from voting

cannot override the Constitutionally-protected right of workers to self-
organization, as well as the provisions of the Labor Code and its Implementing
Rules on certification elections and jurisprudence thereon.

A law is read into, and forms part of, a contract. Provisions in a contract
are valid only if they are not contrary to law, morals, good customs, public order
or public policy.[6]

Rule XI, Sec. 5 of D.O. 40-03, on which the SOLE and the appellate court
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 of D.O. Rule XI, Sec. 5 of D.O. 40-03, viz:

Rule XI
xxxx
Section 5. Qualification of voters; inclusion-exclusion. - 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. 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 a certification election shall
be considered a qualified voter, unless his/her dismissal was
declared valid in a final judgment at the time of the conduct of the
certification election. (Emphasis supplied)

xxxx
 Section 13. Order/Decision on the petition. - Within ten (10) days
from the date of the last hearing, the Med-Arbiter shall issue a
formal order granting the petition or a decision denying the same. In
organized establishments, however, no order or decision shall be
issued by the Med-Arbiter during the freedom period.

The order granting the conduct of a certification election shall

state the following:

(a) the name of the employer or establishment;

(b) the description of the bargaining unit;

(c) a statement that none of the grounds for dismissal enumerated

in the succeeding paragraph exists;

(d) the names of contending labor unions which shall appear as

follows: petitioner union/s in the order in which their petitions
were filed, forced intervenor, and no union; and

(e) a directive upon the employer and the contending union(s)

to submit within ten (10) days from receipt of the order,
the certified list of employees in the bargaining unit, or
where necessary, the payrolls covering the members of the
bargaining unit for the last three (3) months prior to the
issuance of the order. (Emphasis supplied)
xxxx

Section 21. Decision of the Secretary. - The Secretary shall have

fifteen (15) days from receipt of the entire records of the petition
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 (10) days from receipt thereof by the parties. No
motion for reconsideration of the decision shall be entertained.
(Emphasis supplied)

In light of the immediately-quoted provisions, and prescinding 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
Secretary of Labor and Employment,
whether affirming or denying the appeal, becomes final and executory.

The filing of an appeal to the SOLE from the Med-Arbiters Order stays its
execution, in accordance with Sec. 21, and rationally, the Med-Arbiter cannot
direct the employer to furnish him/her with the list of eligible voters pending the
resolution of the appeal.

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.

In the present case, records show that the probationary employees,

including Gatbonton, were included in the list of employees in the bargaining unit
submitted by the Hotel on May 25, 2006 in compliance with the directive of the
Med-Arbiter after the appeal and subsequent motion for reconsideration have
been denied by the SOLE, rendering the Med-Arbiters August 22, 2005 Order
final and executory 10 days after the March 22, 2007 Resolution (denying the
motion for reconsideration of the January 22 Order denying the appeal), and
rightly so. Because, for purposes of self-organization, those employees are, in
light of the discussion above, deemed eligible to vote.

A certification election is the process of determining the sole and

exclusive bargaining agent of the employees in an appropriate bargaining
unit for purposes of collective bargaining. Collective bargaining, refers to
the negotiated contract between a legitimate labor organization and the
employer concerning wages, hours of work and all other terms and
conditions of employment in a bargaining unit.[7]

The significance of an employees right to vote in a certification election

cannot thus be overemphasized. For he has considerable interest in the
determination of who shall represent him in negotiating the terms and conditions
of his employment.

Even if the Implementing Rules gives the SOLE 20 days to decide the appeal
from the Order of the Med-Arbiter, experience shows that it sometimes takes
months to be resolved. To rule then that only those employees hired as of the
date of the issuance of the Med-Arbiters 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-Arbiters
Order as the cut-off date would render inutile the remedy of appeal to the SOLE.

But while the Court rules that the votes of all the probationary employees
should be included, under the particular circumstances of this case and the
period of time which it took for the appeal to be decided, the votes of the six
supervisory employees must be excluded because at the time the certification
elections was conducted, they had ceased to be part of the rank and file, their
promotion having taken effect two months before the election.

As to whether HIMPHLU should be certified as the exclusive bargaining agent,

the Court rules in the negative. 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.

Prescinding from the Courts ruling that all the probationary employees
votes should be deemed valid votes while that of the supervisory employees
should be excluded, it follows that the number of valid votes cast would increase
from 321 to 337. Under Art. 256 of the Labor Code, the union obtaining the
majority of the valid votes cast by the eligible voters shall be certified as the sole
and exclusive bargaining agent 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 obtained 169 while petitioner received 151 votes. Clearly,

HIMPHLU was not able to obtain a majority vote. The position of both the SOLE
and the appellate court that the opening of the 17 segregated ballots will not
materially affect the outcome of the certification election as for, so they contend,
even if such member were all in favor of petitioner, still, HIMPHLU would win, is
thus untenable.

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. It is not simply the determination of who between two or more
contending unions won, but whether it effectively ascertains the will of the
members of the bargaining unit as to whether they want to be represented and
which union they want to represent them.

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 petitioner should represent the
rank-and-file employees.

A run-off election refers to an 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 a certified or consent
election results in none of the three (3) or more choices receiving 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 of votes cast.
[8]
With 346 votes cast, 337 of which are now deemed valid and HIMPHLU having
only garnered 169 and petitioner having obtained 151 and the choice NO UNION
receiving 1 vote, then the holding of a run-off election between HIMPHLU and
petitioner is in order.

WHEREFORE, the petition is GRANTED. The Decision dated November

8, 2007 and Resolution dated January 25, 2008 of the Court of Appeals affirming
the Resolutions dated January 22, 2007 and March 22, 2007, respectively, of the
Secretary of Labor and Employment in OS-A-9-52-05
are ANNULLED and SET ASIDE.

The Department of Labor and Employment-Bureau of Labor Relations

is DIRECTED to cause the holding of a run-off election between petitioner,
National Union of Workers in Hotels, Restaurants and Allied Industries-Manila
Pavilion Hotel Chapter (NUWHRAIN-MPC), and respondent Holiday Inn Manila
Pavilion Hotel Labor Union (HIMPHLU).

SO ORDERED.

MARIWASA SIAM CERAMICS VS. SEC OF LABOR ET AL, GR 183317, 21

DECEMBER 2009

NACHURA, J.:

This is a petition for review on certiorari[1] under Rule 45 of the Rules of Court,
seeking to annul the Decision [2] dated December 20, 2007and the
Resolution[3] dated June 6, 2008 of the Court of Appeals in CA-G.R. SP No.
98332.

The antecedent facts are as follows

On May 4, 2005, respondent Samahan Ng Mga Manggagawa Sa Mariwasa Siam

Ceramics, Inc. (SMMSC-Independent) was issued a Certificate of
Registration[4] as a legitimate labor organization by the Department of Labor and
Employment (DOLE), Region IV-A.

On June 14, 2005, petitioner Mariwasa Siam Ceramics, Inc. filed a Petition for
Cancellation of Union Registration against respondent, claiming that the latter
violated Article 234[5] of the Labor Code for not complying with the 20%
requirement, and that it committed massive fraud and misrepresentation in
violation of Article 239[6] of the same code. The case was docketed as Case No.
RO400-0506-AU-004.

On August 26, 2005, the Regional Director of DOLE IV-A issued an Order
granting the petition, revoking the registration of respondent, and delisting it from
the roster of active labor unions.
Aggrieved, respondent appealed to the Bureau of Labor Relations (BLR).

In a Decision[7] dated June 14, 2006, the BLR granted respondents appeal and
disposed as follows

WHEREFORE, premises considered, the appeal by Samahan ng

Manggagawa sa Mariwasa Siam Ceramics, Inc. (SMMSC-
Independent) is hereby GRANTED, and the Decision dated 26
August 2005 by DOLE-Region-IV-A Director Maximo B. Lim is
hereby REVERSED and SET ASIDE.Samahan ng Manggagawa sa
Mariwasa Siam Ceramics, Inc. (SMMSC-Independent), under
Registration Certificate No. RO400-200505-UR-002, remains in the
roster of legitimate labor organizations.

SO DECIDED.[8]

Petitioner filed a Motion for Reconsideration but the BLR denied it in a

Resolution[9] dated February 2, 2007.

Petitioner sought recourse with the Court of Appeals (CA) through a Petition
for Certiorari; but the CA denied the petition for lack of merit.

Petitioners motion for reconsideration of the CA Decision was likewise denied,

hence, this petition based on the following grounds

Review of the Factual Findings of the Bureau of Labor

Relations, adopted and confirmed by the Honorable Court of
Appeals is warranted[;]

The Honorable Court of Appeals seriously erred in ruling that

the affidavits of recantation cannot be given credence[;]

The Honorable Court of Appeals seriously erred in ruling that

private respondent union complied with the 20% membership
requirement[; and]

The Honorable Court of Appeals seriously erred when it

ruled that private respondent union did not commit
misrepresentation, fraud or false statement. [10]
The petition should be denied.

The petitioner insists that respondent failed to comply with the 20% union
membership requirement for its registration as a legitimate labor organization
because of the disaffiliation from the total number of union members of 102
employees who executed affidavits recanting their union membership.

It is, thus, imperative that we peruse the affidavits appearing to have been
executed by these affiants.

The affidavits uniformly state

Ako, _____________, Pilipino, may sapat na gulang, regular na

empleyado bilang Rank & File sa Mariwasa Siam Ceramics, Inc.,
Bo. San Antonio, Sto. Tomas, Batangas, matapos na
makapanumpa ng naaayon sa batas ay malaya at kusang loob na
nagsasaad ng mga sumusunod:

1. Ako ay napilitan at nilinlang sa pagsapi sa Samahan ng mga

Manggagawa sa Mariwasa Siam Ceramics, Inc. o SMMSC-
Independent sa kabila ng aking pag-aalinlangan[;]

2. Aking lubos na pinagsisihan ang aking pagpirma sa sipi ng

samahan, at handa ako[ng] tumalikod sa anumang
kasulatan na aking nalagdaan sa kadahilanan na hindi
angkop sa aking pananaw ang mga mungkahi o adhikain ng
samahan.

SA KATUNAYAN NANG LAHAT, ako ay lumagda ng aking

pangalan ngayong ika-____ ng ______, 2005 dito sa Lalawigan ng
Batangas, Bayan ng Sto. Tomas.

____________________
Nagsasalaysay

Evidently, these affidavits were written and prepared in advance, and the pro
forma affidavits were ready to be filled out with the employees names and
signatures.

The first common allegation in the affidavits is a declaration that, in spite

of his hesitation, the affiant was forced and deceived into joining the respondent
union. It is worthy to note, however, that the affidavit does not mention the
identity of the people who allegedly forced and deceived the affiant into joining
the union, much less the circumstances that constituted such force and
deceit. Indeed, not only was this allegation couched in very general terms and
sweeping in nature, but more importantly, it was not supported by any evidence
whatsoever.

The second allegation ostensibly bares the affiants regret for joining
respondent union and expresses the desire to abandon or renege from whatever
agreement he may have signed regarding his membership with respondent.

Simply put, through these affidavits, it is made to appear that the affiants
recanted their support of respondents application for registration.

In appreciating affidavits of recantation such as these, our ruling in La

Suerte Cigar and Cigarette Factory v. Director of the Bureau of Labor
Relations[11] is enlightening, viz.

On the second issue whether or not the withdrawal of 31 union

members from NATU affected the petition for certification election
insofar as the 30% requirement is concerned, We reserve the Order
of the respondent Director of the Bureau of Labor Relations, it
appearing undisputably that the 31 union members had withdrawn
their support to the petition before the filing of said petition. It would
be otherwise if the withdrawal was made after the filing of the
petition for it would then be presumed that the withdrawal was not
free and voluntary. The presumption would arise that the withdrawal
was procured through duress, coercion or for valuable
consideration. In other words, the distinction must be that
withdrawals made before the filing of the petition are presumed
voluntary unless there is convincing proof to the contrary, whereas
withdrawals made after the filing of the petition are deemed
involuntary.

The reason for such distinction is that if the withdrawal or retraction

is made before the filing of the petition, the names of employees
supporting the petition are supposed to be held secret to the
opposite party. Logically, any such withdrawal or retraction shows
voluntariness in the absence of proof to the contrary. Moreover, it
becomes apparent that such employees had not given consent to
the filing of the petition, hence the subscription requirement has not
been met.

When the withdrawal or retraction is made after the petition is filed,

the employees who are supporting the petition become known to
the opposite party since their names are attached to the petition at
the time of filing. Therefore, it would not be unexpected that the
 opposite party would use foul means for the subject employees to
withdraw their support.[12]

In the instant case, the affidavits of recantation were executed after the identities
of the union members became public, i.e., after the union filed a petition for
certification election on May 23, 2005, since the names of the members were
attached to the petition. The purported withdrawal of support for the registration
of the union was made after the documents were submitted to the DOLE, Region
IV-A. The logical conclusion, therefore, following jurisprudence, is that the
employees were not totally free from the employers pressure, and so the
voluntariness of the employees execution of the affidavits becomes suspect.

It is likewise notable that the first batch of 25 pro forma affidavits shows that the
affidavits were executed by the individual affiants on different dates from May 26,
2005 until June 3, 2005, but they were all sworn before a notary public on June
8, 2005.
There was also a second set of standardized affidavits executed on
different dates from May 26, 2005 until July 6, 2005. While these 77 affidavits
were notarized on different dates, 56 of these were notarized on June 8, 2005,
the very same date when the first set of 25 was notarized.

Considering that the first set of 25 affidavits was submitted to the DOLE
on June 14, 2005, it is surprising why petitioner was able to submit the second
set of affidavits only on July 12, 2005.

Accordingly, we cannot give full credence to these affidavits, which were

executed under suspicious circumstances, and which contain allegations
unsupported by evidence. At best, these affidavits are self-serving. They
possess no probative value.

A retraction does not necessarily negate an earlier declaration. For this

reason, retractions are looked upon with disfavor and do not automatically
exclude the original statement or declaration based solely on the
recantation. It is imperative that a determination be first made as to which
between the original and the new statements should be given weight or
accorded belief, applying the general rules on evidence. In this case,
inasmuch as they remain bare allegations, the purported recantations
should not be upheld.[13]

Nevertheless, even assuming the veracity of the affidavits of recantation, the

legitimacy of respondent as a labor organization must be affirmed. While it is true
that the withdrawal of support may be considered as a resignation from the
union, the fact remains that at the time of the unions application for registration,
the affiants were members of respondent and they comprised more than the
required 20% membership for purposes of registration as a labor union. Article
234 of the Labor Code merely requires a 20% minimum membership during the
application for union registration. It does not mandate that a union must maintain
the 20% minimum membership requirement all throughout its existence.[14]

Respondent asserts that it had a total of 173 union members at the time it
applied for registration. Two names were repeated in respondents list and had to
be deducted, but the total would still be 171 union members. Further, out of the
four names alleged to be no longer connected with petitioner, only two names
should be deleted from the list since Diana Motilla and T.W. Amutan resigned
from petitioner only on May 10, 2005 and May 17, 2005, respectively, or after
respondents registration had already been granted. Thus, the total union
membership at the time of registration was 169. Since the total number of rank-
and-file employees at that time was 528, 169 employees would be equivalent to
32% of the total rank-and-file workers complement, still very much above the
minimum required by law.

For the purpose of de-certifying a union such as respondent, it must be shown

that there was misrepresentation, false statement or fraud in connection with the
adoption or ratification of the constitution and by-laws or amendments thereto;
the minutes of ratification; or, in connection with the election of officers, the
minutes of the election of officers, the list of voters, or failure to submit these
documents together with the list of the newly elected-appointed officers and their
postal addresses to the BLR.[15]

The bare fact that two signatures appeared twice on the list of those who
participated in the organizational meeting would not, to our mind, provide a valid
reason to cancel respondents certificate of registration. The cancellation of a
unions registration doubtless has an impairing dimension on the right of labor to
self-organization. For fraud and misrepresentation to be grounds for cancellation
of union registration under the Labor Code, the nature of the fraud and
misrepresentation must be grave and compelling enough to vitiate the consent of
a majority of union members.

In this case, we agree with the BLR and the CA that respondent could not
have possibly committed misrepresentation, fraud, or false statements. The
alleged failure of respondent to indicate with mathematical precision the total
number of employees in the bargaining unit is of no moment, especially as it was
able to comply with the 20% minimum membership requirement. Even if the total
number of rank-and-file employees of petitioner is 528, while respondent
declared that it should only be 455, it still cannot be denied that the latter would
have more than complied with the registration requirement.

WHEREFORE, the petition is DENIED. The assailed December 20,

2007 Decision and the June 6, 2008 Resolution of the Court of Appeals
are AFFIRMED. Costs against petitioner.

SO ORDERED.
3.2 Who May, and where to, file petition for CE
B5 R5 S1-2, IRR

DO9, RXI, S1-2

Do40 R8, S1-2
RA 9481 S10 amending 256LC

3.2.1 Challenging the petition for Certification Election

TOYOTA MOTORS VS. TOYOTA MPC LABOR UNION, 268 SCRA 571
KAPUNAN, J.:

On November 26, 1992, the Toyota Motor Philippines Corporation Labor

Union (TMPCLU) filed a petition for certification election with the Department of
Labor, National Capital Region, for all rank-and-file employees of the Toyota
Motor Corporation.[1]
In response, petitioner filed a Position Paper on February 23, 1993 seeking
the denial of the issuance of an Order directing the holding of a certification
election on two grounds: first, that the respondent union, being "in the process of
registration" had no legal personality to file the same as it was not a legitimate
labor organization as of the date of the filing of the petition; and second, that the
union was composed of both rank-and-file and supervisory employees in
violation of law.[2] Attached to the position paper was a list of union members and
their respective job classifications, indicating that many of the signatories to the
petition for certification election occupied supervisory positions and were not in
fact rank-and-file employees.[3]
The Med-Arbiter, Paterno D. Adap, dismissed respondent union's petition for
certification election for lack of merit. In his March 8, 1993 Order, the Med-Arbiter
found that the labor organization's membership was composed of supervisory
and rank-and-file employees in violation of Article 245 of the Labor Code, [4] and
that at the time of the filing of its petition, respondent union had not even
acquired legal personality yet.[5]
On appeal, the Office of the Secretary of Labor, in a Resolution [6] dated
November 9, 1993 signed by Undersecretary Bienvenido E. Laguesma, set aside
the Med-Arbiter's Order of March 3, 1993, and directed the holding of a
certification election among the regular rank-and-file employees of Toyota Motor
Corporation. In setting aside the questioned Order, the Office of the Secretary
contended that:

Contrary to the allegation of herein respondent­appellee, petitioner­appellant was already 
a legitimate labor organization at the time of the filing of the petition on 26 November 
1992. Records show that on 24 November 1992 or two (2) days before the filing of the 
said petition, it was issued a certificate of registration.
We also agree with petitioner­appellant that the Med­Arbiter should have not dismissed 
the petition for certification election based on the ground that the proposed bargaining 
unit is a mixture of supervisory and rank­and­file employees, hence, violative of Article 
245 of the Labor Code as amended.

A perusal of the petition and the other documents submitted by petitioner­appellant will 
readily show that what the former really seeks to represent are the regular rank­and­file 
employees in the company numbering about 1,800 more or less, a unit which is obviously
appropriate for bargaining purposes. This being the case, the mere allegation of 
respondent­appellee that there are about 42 supervisory employees in the proposed 
bargaining unit should have not caused the dismissal of the instant petition. Said issue 
could very well be taken cared of during the pre­election conference where 
inclusion/exclusion proceedings will be conducted to determine the list of eligible voters.
[7]

Not satisfied with the decision of the Office of the Secretary of Labor,
petitioner filed a Motion for Reconsideration of the Resolution of March 3, 1993,
reiterating its claim that as of the date of filing of petition for certification election,
respondent TMPCLU had not yet acquired the status of a legitimate labor
organization as required by the Labor Code, and that the proposed bargaining
unit was inappropriate.
Acting on petitioner's motion for reconsideration, the public respondent, on
July 13, 1994 set aside its earlier resolution and remanded the case to the Med-
Arbiter concluding that the issues raised by petitioner both on appeal and in its
motion for reconsideration were factual issues requiring further hearing and
production of evidence.[8] The Order stated:

We carefully re­examined the records vis­a­vis the arguments raised by the movant, and 
we note that movant correctly pointed out that petitioner submitted a copy of its 
certificate of registration for the first time on appeal and that in its petition, petitioner 
alleges that it is an independent organization which is in the process of registration." 
Movant strongly argues that the foregoing only confirms what it has been pointing out all
along, that at the time the petition was filed petitioner is (sic) not yet the holder of a 
registration certificate; that what was actually issued on 24 November 1992 or two (2) 
days before the filing of the petition was an official receipt of payment for the application
fee; and, that the date appearing in the Registration certificate which is November 24, 
1992 is not the date when petitioner was actually registered, but the date when the 
registration certificate was prepared by the processor. Movant also ratiocinates that if 
indeed petitioner has been in possession of the registration certificate at the time this 
petition was filed on November 26, 1992, it would have attached the same to the petition.
The foregoing issues are factual ones, the resolution of which is crucial to the petition. 
For if indeed it is true that at the time of filing of the petition, the said registration 
certificate has not been approved yet, then, petitioner lacks the legal personality to file the
petition and the dismissal order is proper. Sadly, we can not resolve the said questions by 
merely perusing the records. Further hearing and introduction of evidence are required. 
Thus, there is a need to remand the case to the Med­Arbiter solely for the purpose.

WHEREFORE, the motion is hereby granted and our Resolution is hereby set aside. Let 
the case be remanded to the Med­Arbiter for the purpose aforestated.

SO ORDERED.[9]

Pursuant to the Order, quoted above, Med-Arbiter Brigida C. Fodrigon

submitted her findings on September 28, 1994, stating the following: [10]

[T]he controvertible fact is that petitioner could not have been issued its Certificate of 
Registration on November 24, 1992 when it applied for registration only on November 
23, 1992 as shown by the official receipt of payment of filing fee. As Enrique Nalus, 
Chief LEO, this office, would attest in his letter dated September 8, 1994 addressed to 
Mr. Porfirio T. Reyes, Industrial Relations Officer of Respondent company, in response 
to a query posed by the latter, "It is unlikely that an application for registration is 
approved on the date that it is filed or the day thereafter as the processing course has to 
pass thought routing, screening, and assignment, evaluation, review and initialing, and 
approval/disapproval procedure, among others, so that a 30­day period is provided for 
under the Labor Code for this purpose, let alone opposition thereto by interested parties 
which must be also given due course."

Another evidence which petitioner presented . . . is the "Union Registration 1992 
Logbook of IRD" . . . and the entry date November 25, 1992 as allegedly the date of the 
release of the registration certificate . . . On the other hand, respondent company 
presented . . . a certified true copy of an entry on page 265 of the Union Registration 
Logbook showing the pertinent facts about petitioner but which do not show the 
petitioner's registration was issued on or before November 26, 1992.[11]

Further citing other pieces of evidence presented before her, the Med-Arbiter
concluded that respondent TMPCLU could not have "acquire[d] legal personality
at the time of the filing of (its) petition." [12]
On April 20, 1996, the public respondent issued a new Resolution, "directing
the conduct of a certification election among the regular rank-and-file employees
of the Toyota Motor Philippines Corporation. [13] Petitioner's motion for
reconsideration was denied by public respondent in his Order dated July 14,
1995.[14]
Hence, this special civil action for certiorari under Rule 65 of the Revised
Rules of Court, where petitioner contends that "the Secretary of Labor and
Employment committed grave abuse of discretion amounting to lack or excess of
jurisdiction in reversing, contrary to law and facts the findings of the Med-Arbiters
to the effect that: 1) the inclusion of the prohibited mix of rank-and file and
supervisory employees in the roster of members and officers of the union cannot
be cured by a simple inclusion-exclusion proceeding; and that 2) the respondent
union had no legal standing at the time of the filing of its petition for certification
election.[15]
We grant the petition.
The purpose of every certification election is to determine the exclusive
representative of employees in an appropriate bargaining unit for the purpose of
collective bargaining. A certification election for the collective bargaining process
is one of the fairest and most effective ways of determining which labor
organization can truly represent the working force. [16] In determining the labor
organization which represents the interests of the workforce, those interests must
be, as far as reasonably possible, homogeneous, so as to genuinely reach the
concerns of the individual members of a labor organization.
According to Rothenberg,[17] an appropriate bargaining unit is a group of
employees of a given employer, composed of all or less than the entire body of
employees, which the collective interests of all the employees, consistent with
equity to the employer indicate to be best suited to serve reciprocal rights and
duties of the parties under the collective bargaining provisions of law. In Belyca
Corporation v. Ferrer Calleja,[18] we defined the bargaining unit as "the legal
collectivity for collective bargaining purposes whose members have substantially
mutual bargaining interests in terms and conditions of employment as will assure
to all employees their collective bargaining rights." This in mind, the Labor Code
has made it a clear statutory policy to prevent supervisory employees from
joining labor organizations consisting of rank-and-file employees as the concerns
which involve members of either group are normally disparate and contradictory.
Article 245 provides:

ART. 245 Ineligibility of managerial employees to join any labor organization; right of 
supervisory employees. ­­ Managerial Employees are not eligible to join, assist or form 
any labor organization. Supervisory employees shall not be eligible for membership in a 
labor organization of the rank­and­file employees but may join, assist or form separate 
labor organizations of their own.

Clearly, based on this provision, a labor organization composed of both rank-

and-file and supervisory employees is no labor organization at all. It cannot, for
any guise or purpose, be a legitimate labor organization. Not being one, an
organization which carries a mixture of rank-and-file and supervisory employees
cannot possess any of the rights of a legitimate labor organization, including the
right to file a petition for certification election for the purpose of collective
bargaining. It becomes necessary, therefore, anterior to the granting of an order
allowing a certification election, to inquire into the composition of any labor
organization whenever the status of the labor organization is challenged on the
basis of Article 245 of the Labor Code.
It is the petitioner's contention that forty-two (42) of the respondent union's
members, including three of its officers, occupy supervisory positions. [19]In its
position paper dated February 22, 1993, petitioner identified fourteen (14) union
members occupying the position of Junior Group Chief II [20] and twenty-seven
(27) members in level five positions. Their respective job-descriptions are quoted
below:

LEVEL 4 (JUNIOR GROUP CHIEF II) He is responsible for all operators and assigned 
stations, prepares production reports related to daily production output. He oversees 
smooth flow of production, quality of production, availability of manpower, parts and 
equipments. He also coordinates with other sections in the Production Department.

LEVEL 5 He is responsible for overseeing initial production of new models, prepares and
monitors construction schedules for new models, identifies manpower requirements for 
production, facilities and equipment, and lay­out processes. He also oversees other 
sections in the production process (e.g. assembly, welding, painting)." (Annex "V" of 
Respondent TMP's Position Paper, which is the Job Description for an Engineer holding 
Level 5 position in the Production Engineering Section of the Production Planning and 
Control Department).

While there may be a genuine divergence of opinion as to whether or not

union members occupying Level 4 positions are supervisory employees, it is
fairly obvious, from a reading of the Labor Code's definition of the term that those
occupying Level 5 positions are unquestionably supervisory employees.
Supervisory employees, as defined above, are those who, in the interest of the
employer, effectively recommend managerial actions if the exercise of such
authority is not merely routinary or clerical in nature but require the use of
independent judgment.[21] Under the job description for level five employees, such
personnel all engineers having a number of personnel under them, not only
oversee production of new models but also determine manpower requirements,
thereby influencing important hiring decisions at the highest levels. This
determination is neither routine nor clerical but involves the independent
assessment of factors affecting production, which in turn affect decisions to hire
or transfer workers. The use of independent judgment in making the decision to
hire, fire or transfer in the identification of manpower requirements would be
greatly impaired if the employee's loyalties are torn between the interests of the
union and the interests of management. A supervisory employee occupying a
level five position would therefore find it difficult to objectively identify the exact
manpower requirements dictated by production demands.
This is precisely what the Labor Code, in requiring separate unions among
rank-and-file employees on one hand, and supervisory employees on the other,
seeks to avoid. The rationale behind the Code's exclusion of supervisors from
unions of rank-and-file employees is that such employees, while in the
performance of supervisory functions, become the alter ego of management in
the making and the implementing of key decisions at the sub-managerial level.
Certainly, it would be difficult to find unity or mutuality of interests in a bargaining
unit consisting of a mixture of rank-and-file and supervisory employees. And this
is so because the fundamental test of a bargaining unit's acceptability is whether
or not such a unit will best advance to all employees within the unit the proper
exercise of their collective bargaining rights. [22] The Code itself has recognized
this, in preventing supervisory employees from joining unions of rank-and-file
employees.
In the case at bar, as respondent union's membership list contains the
names of at least twenty-seven (27) supervisory employees in Level Five
positions, the union could not, prior to purging itself of its supervisory employee
members, attain the status of a legitimate labor organization. Not being one, it
cannot possess the requisite personality to file a petition for certification election.
The foregoing discussion, therefore, renders entirely irrelevant, the technical
issue raised as to whether or not respondent union was in possession of the
status of a legitimate labor organization at the time of filing, when, as petitioner
vigorously claims, the former was still at the stage of processing of its application
for recognition as a legitimate labor organization. The union's composition being
in violation of the Labor Code's prohibition of unions composed of supervisory
and rank-and-file employees, it could not possess the requisite personality to file
for recognition as a legitimate labor organization. In any case, the factual issue,
albeit ignored by the public respondent's assailed Resolution, was adequately
threshed out in the Med-Arbiter's September 28, 1994 Order.
The holding of a certification election is based on clear statutory policy which
cannot be circumvented.[23] Its rules, strictly construed by this Court, are designed
to eliminate fraud and manipulation. As we emphasized in Progressive
Development Corporation v. Secretary, Department of Labor and Employment,
[24]
the Court's conclusion should not be interpreted as impairing any union's right
to be certified as the employees' bargaining agent in the petitioner's
establishment. Workers of an appropriate bargaining unit must be allowed to
freely express their choice in an election where everything is open to sound
judgment and the possibility for fraud and misrepresentation is absent. [25]
WHEREFORE, the petition is GRANTED. The assailed Resolution dated
April 20, 1995 and Order dated July 14, 1995 of respondent Secretary of Labor
are hereby SET ASIDE. The Order dated September 28, 1994 of the Med-Arbiter
is REINSTATED.
 SO ORDERED.
Padilla, (Chairman), Bellosillo, Vitug, and Hermosisima, Jr., JJ., concur.

TAGAYTAY HIGHLANDS INTL GOLF CLUB, INC. VS TAGAYTAY HIGHLANDS

EMPLOYEES UNION – PGTWO, 395 SCRA 699 [2003]
CARPIO-MORALES, J.:

Before this Court on certiorari under Rule 45 is the petition of the Tagaytay
Highlands International Golf Club Incorporated (THIGCI) assailing the February
15, 2002 decision of the Court of Appeals denying its petition to annul the
Department of Labor and Employment (DOLE) Resolutions of November 12,
1998 and December 29, 1998.
On October 16, 1997, the Tagaytay Highlands Employees Union
(THEU)Philippine Transport and General Workers Organization (PTGWO), Local
Chapter No. 776, a legitimate labor organization said to represent majority of the
rank-and-file employees of THIGCI, filed a petition for certification election before
the DOLE Mediation-Arbitration Unit, Regional Branch No. IV.
THIGCI, in its Comment[1] filed on November 27, 1997, opposed THEUs
petition for certification election on the ground that the list of union members
submitted by it was defective and fatally flawed as it included the names and
signatures of supervisors, resigned, terminated and absent without leave (AWOL)
employees, as well as employees of The Country Club, Inc., a corporation
distinct and separate from THIGCI; and that out of the 192 signatories to the
petition, only 71 were actual rank-and-file employees of THIGCI.
THIGCI thus submitted a list of the names of its 71 actual rank-and-file
employees which it annexed[2] to its Comment to the petition for certification
election. And it therein incorporated the following tabulation [3] showing the
number of signatories to said petition whose membership in the union was being
questioned as disqualified and the reasons for disqualification:

# of Signatures Reasons for Disqualification

13 Supervisors of THIGCI

6 Resigned employees of THIGCI

2 AWOL employees of THIGCI

53 Rank­and­file employees of The Country Club at Tagaytay Highlands, Inc.

14 Supervisors of The Country Club at Tagaytay Highlands, Inc.
 6 Resigned employees of The Country Club at Tagaytay Highlands, Inc.

3 Terminated employees of The Country Club at Tagaytay Highlands, Inc.

1 AWOL employees of The Country Club at Tagaytay Highlands, Inc.

4 Signatures that cannot be deciphered

16 Names in list that were erased

2 Names with first names only

THIGCI also alleged that some of the signatures in the list of union members
were secured through fraudulent and deceitful means, and submitted copies of
the handwritten denial and withdrawal of some of its employees from
participating in the petition.[4]
Replying to THIGCIs Comment, THEU asserted that it had complied with all
the requirements for valid affiliation and inclusion in the roster of legitimate labor
organizations pursuant to DOLE Department Order No. 9, series of 1997, [5] on
account of which it was duly granted a Certification of Affiliation by DOLE on
October 10, 1997;[6] and that Section 5, Rule V of said Department Order
provides that the legitimacy of its registration cannot be subject to collateral
attack, and for as long as there is no final order of cancellation, it continues to
enjoy the rights accorded to a legitimate organization.
THEU thus concluded in its Reply [7] that under the circumstances, the Med-
Arbiter should, pursuant to Article 257 of the Labor Code and Section 11, Rule XI
of DOLE Department Order No. 09, automatically order the conduct of a
certification election.
By Order of January 28, 1998, [8] DOLE Med-Arbiter Anastacio Bactin ordered
the holding of a certification election among the rank-and-file employees of
THIGCI in this wise, quoted verbatim:

We evaluated carefully this instant petition and we are of the opinion that it is complete 
in form and substance. In addition thereto, the accompanying documents show that 
indeed petitioner union is a legitimate labor federation and its local/chapter was 
duly reported to this Office as one of its affiliate local/chapter. Its due reporting 
through the submission of all the requirements for registration of a local/chapter is a clear
showing that it was already included in the roster of legitimate labor organizations in this 
Office pursuant to Department Order No. 9 Series of 1997 with all the legal right and 
personality to institute this instant petition. Pursuant therefore to the provisions of Article 
257 of the Labor Code, as amended, and its Implementing Rules as amended by 
Department Order No. 9, since the respondents establishment is unorganized, the holding 
of a certification election is mandatory for it was clearly established that petitioner is a 
legitimate labor organization. Giving due course to this petition is therefore proper and 
appropriate.[9] (Emphasis supplied)

Passing on THIGCIs allegation that some of the union members are

supervisory, resigned and AWOL employees or employees of a separate and
distinct corporation, the Med-Arbiter held that the same should be properly raised
in the exclusion-inclusion proceedings at the pre-election conference. As for the
allegation that some of the signatures were secured through fraudulent and
deceitful means, he held that it should be coursed through an independent
petition for cancellation of union registration which is within the jurisdiction of the
DOLE Regional Director. In any event, the Med-Arbiter held that THIGCI failed
to submit the job descriptions of the questioned employees and other
supporting documents to bolster its claim that they are disqualified from
joining THEU.
THIGCI appealed to the Office of the DOLE Secretary which, by Resolution
of June 4, 1998, set aside the said Med-Arbiters Order and accordingly
dismissed the petition for certification election on the ground that there is a clear
absence of community or mutuality of interests, it finding that THEU sought to
represent two separate bargaining units (supervisory employees and rank-and-
file employees) as well as employees of two separate and distinct corporate
entities.
Upon Motion for Reconsideration by THEU, DOLE Undersecretary Rosalinda
Dimalipis-Baldoz, by authority of the DOLE Secretary, issued DOLE Resolution of
November 12, 1998[10] setting aside the June 4, 1998 Resolution dismissing the
petition for certification election. In the November 12, 1998
Resolution, Undersecretary Dimapilis-Baldoz held that since THEU is a local
chapter, the twenty percent (20%) membership requirement is not necessary for
it to acquire legitimate status, hence, the alleged retraction and withdrawal of
support by 45 of the 70 remaining rank-and-file members . . . cannot negate the
legitimacy it has already acquired before the petition; that rather than disregard
the legitimate status already conferred on THEU by the Bureau of Labor
Relations, the names of alleged disqualified supervisory employees and
employees of the Country Club, Inc., a separate and distinct corporation, should
simply be removed from the THEUs roster of membership; and that regarding the
participation of alleged resigned and AWOL employees and those whose
signatures are illegible, the issue can be resolved during the inclusion-exclusion
proceedings at the pre-election stage.
The records of the case were thus ordered remanded to the Office of the
Med-Arbiter for the conduct of certification election.
THIGCIs Motion for Reconsideration of the November 12, 1998 Resolution
having been denied by the DOLE Undersecretary by Resolution of December 29,
1998,[11] it filed a petition for certiorari before this Court which, by Resolution of
April 14, 1999,[12] referred it to the Court of Appeals in line with its pronouncement
in National Federation of Labor (NFL) v. Hon. Bienvenido E. Laguesma, et al .,
[13]
and in strict observance of the hierarchy of courts, as emphasized in the case
of St. Martin Funeral Home v. National Labor Relations Commission.[14]
By Decision of February 15, 2000, [15] the Court of Appeals denied THIGCIs
Petition for Certiorari and affirmed the DOLE Resolution dated November 12,
1998. It held that while a petition for certification election is an exception to the
innocent bystander rule, hence, the employer may pray for the dismissal of such
petition on the basis of lack of mutuality of interests of the members of the union
as well as lack of employer-employee relationship following this Courts ruling
in Toyota Motor Philippines Corporation v. Toyota Motor Philippines Corporation
Labor Union et al[16] and Dunlop Slazenger [Phils.] v. Hon. Secretary of Labor and
Employment et al,[17] petitioner failed to adduce substantial evidence to
support its allegations.
Hence, the present petition for certiorari, raising the following

ISSUES/ASSIGNMENT OF ERRORS:

THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE 
RESOLUTION DATED 12 NOVEMER 1998 HOLDING THAT SUPERVISORY 
EMPLOYEES AND NON­EMPLOYEES COULD SIMPLY BE REMOVED FROM 
APPELLEES ROSTER OF RANK­AND­FILE MEMBERSHIP INSTEAD OF 
RESOLVING THE LEGITIMACY OF RESPONDENT UNIONS STATUS

THE COURT OF APPEALS GRIEVOUSLY ERRED IN AFFIRMING THE 
RESOLUTION DATED 12 NOVEMBER 1998 HOLDING THAT THE 
DISQUALIFIED EMPLOYEES STATUS COULD READILY BE RESOLVED 
DURING THE INCLUSION AND EXCLUSION PROCEEDINGS

THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT HOLDING THAT THE 
ALLEGATIONS OF PETITIONER HAD BEEN DULY PROVEN BY FAILURE OF 
RESPONDENT UNION TO DENY THE SAME AND BY THE SHEER WEIGHT OF 
EVIDENCE INTRODUCED BY PETITIONER AND CONTAINED IN THE 
RECORDS OF THE CASE[18]

The statutory authority for the exclusion of supervisory employees in a rank-

and-file union, and vice-versa, is Article 245 of the Labor Code, to wit:

Article 245. Ineligibility of managerial employees to join any labor organization; right of
supervisory employees. Managerial employees are not eligible to join, assist or form any 
labor organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank­and­file employees but may join, assist or form separate labor 
organizations of their own.

While above-quoted Article 245 expressly prohibits supervisory employees

from joining a rank-and-file union, it does not provide what would be the effect if a
rank-and-file union counts supervisory employees among its members, or vice-
versa.
Citing Toyota[19] which held that a labor organization composed of both rank-
and-file and supervisory employees is no labor organization at all, and the
subsequent case of Progressive Development Corp. Pizza Hut v.
Ledesma[20] which held that:

The Labor Code requires that in organized and unorganized establishments, a petition for 
certification election must be filed by a legitimate labor organization. The acquisition of 
rights by any union or labor organization, particularly the right to file a petition for 
certification election, first and foremost, depends on whether or not the labor 
organization has attained the status of a legitimate labor organization.

In the case before us, the Med­Arbiter summarily disregarded the petitioners prayer that 
the former look into the legitimacy of the respondent Union by a sweeping declaration 
that the union was in the possession of a charter certificate so that for all intents and 
purposes, Sumasaklaw sa Manggagawa sa Pizza Hut (was) a legitimate organization,
[21]
 (Underscoring and emphasis supplied),

petitioner contends that, quoting Toyota, [i]t becomes necessary . . ., anterior

to the granting of an order allowing a certification election, to inquire into the
composition of any labor organization whenever the status of the labor
organization is challenged on the basis of Article 245 of the Labor Code. [22]
Continuing, petitioner argues that without resolving the status of THEU, the
DOLE Undersecretary conveniently deferred the resolution on the serious
infirmity in the membership of [THEU] and ordered the holding of the certification
election which is frowned upon as the following ruling of this Court shows:

We also do not agree with the ruling of the respondent Secretary of Labor that the 
infirmity in the membership of the respondent union can be remedied in the pre­
election conference thru the exclusion­inclusion proceedings wherein those employees 
who are occupying rank­and­file positions will be excluded from the list of eligible 
voters. Public respondent gravely misappreciated the basic antipathy between the interest 
of supervisors and the interest of rank­and­file employees. Due to the irreconcilability of 
their interest we held in Toyota Motor Philippines v. Toyota Motors Philippines 
Corporation Labor Union, viz:
x x x

Clearly, based on this provision [Article 245], a labor organization composed of both 
rank­and­file and supervisory employees is no labor organization at all. It cannot, for any 
guise or purpose, be a legitimate labor organization. Not being one, an organization 
which carries a mixture of rank­and­file and supervisory employees cannot posses any of 
the rights of a legitimate labor organization, including the right to file a petition for 
certification election for the purpose of collective bargaining. It
    becomes necessary, 
therefore, anterior to the granting of an order allowing a certification election, to 
inquire into the composition of any labor organization whenever the status of the labor 
organization is challenged on the basis of Article 245 of the Labor Code. (Emphasis by 
petitioner) (Dunlop Slazenger (Phils.), v. Secretary of Labor, 300 SCRA 120 
[1998]; Underscoring and emphasis supplied by petitioner.)

The petition fails. After a certificate of registration is issued to a union, its

legal personality cannot be subject to collateral attack. It may be questioned only
in an independent petition for cancellation in accordance with Section 5 of Rule
V, Book IV of the Rules to Implement the Labor Code (Implementing Rules)
which section reads:

Sec. 5. Effect of registration. The labor organization or workers association shall be 
deemed registered and vested with legal personality on the date of issuance of its 
certificate of registration. Such legal personality cannot thereafter be subject to collateral 
attack, but may be questioned only in an independent petition for cancellation in 
accordance with these Rules. (Emphasis supplied)

The grounds for cancellation of union registration are provided for under
Article 239 of the Labor Code, as follows:

Art. 239. Grounds for cancellation of union registration. The following shall constitute 
grounds for cancellation of union registration:

(a) Misrepresentation, false statement or fraud in connection with the adoption or 
ratification of the constitution and by­laws or amendments thereto, the minutes of 
ratification, and the list of members who took part in the ratification;

(b) Failure to submit the documents mentioned in the preceding paragraph within thirty 
(30) days from adoption or ratification of the constitution and by­laws or amendments 
thereto;
(c) Misrepresentation, false statements or fraud in connection with the election of 
officers, minutes of the election of officers, the list of voters, or failure to subject these 
documents together with the list of the newly elected/appointed officers and their postal 
addresses within thirty (30) days from election;

(d) Failure to submit the annual financial report to the Bureau within thirty (30) days after
the losing of every fiscal year and misrepresentation, false entries or fraud in the 
preparation of the financial report itself;

(e) Acting as a labor contractor or engaging in the cabo system, or otherwise engaging in 
any activity prohibited by law;

(f) Entering into collective bargaining agreements which provide terms and conditions of 
employment below minimum standards established by law;

(g) Asking for or accepting attorneys fees or negotiation fees from employers;

(h) Other than for mandatory activities under this Code, checking off special assessments 
or any other fees without duly signed individual written authorizations of the members;

(i) Failure to submit list of individual members to the Bureau once a year or whenever 
required by the Bureau; and

(j) Failure to comply with the requirements under Articles 237 and 238, (Emphasis 
supplied),

while the procedure for cancellation of registration is provided for in Rule VIII,
Book V of the Implementing Rules.
The inclusion in a union of disqualified employees is not among the grounds
for cancellation, unless such inclusion is due to misrepresentation, false
statement or fraud under the circumstances enumerated in Sections (a) and
(c) of Article 239 of above-quoted Article 239 of the Labor Code.
THEU, having been validly issued a certificate of registration, should be
considered to have already acquired juridical personality which may not be
assailed collaterally.
As for petitioners allegation that some of the signatures in the petition for
certification election were obtained through fraud, false statement and
misrepresentation, the proper procedure is, as reflected above, for it to file a
petition for cancellation of the certificate of registration, and not to intervene in a
petition for certification election.
 Regarding the alleged withdrawal of union members from participating in the
certification election, this Courts following ruling is instructive:

[T]he best forum for determining whether there were indeed retractions from some of the 
laborers is in the certification election itself wherein the workers can freely express their 
choice in a secret ballot. Suffice it to say that the will of the rank­and­file employees 
should in every possible instance be determined by secret ballot rather than by 
administrative or quasi­judicial inquiry. Such representation and certification election 
cases are not to be taken as contentious litigations for suits but as mere investigations of 
a non­adversary, fact­finding character as to which of the competing unions represents 
the genuine choice of the workers to be their sole and exclusive collective bargaining 
representative with their employer.[23]

As for the lack of mutuality of interest argument of petitioner, it, at all events,
does not lie given, as found by the court a quo, its failure to present substantial
evidence that the assailed employees are actually occupying supervisory
positions.
While petitioner submitted a list of its employees with their corresponding job
titles and ranks,[24] there is nothing mentioned about the supervisors respective
duties, powers and prerogatives that would show that they can effectively
recommend managerial actions which require the use of independent judgment.
[25]

As this Court put it in Pepsi-Cola Products Philippines, Inc. v. Secretary of

Labor:[26]

Designation should be reconciled with the actual job description of subject employees x x
x The mere fact that an employee is designated manager does not necessarily make him 
one. Otherwise, there would be an absurd situation where one can be given the title just to
be deprived of the right to be a member of a union. In the case of National Steel 
Corporation vs. Laguesma (G. R. No. 103743, January 29, 1996), it was stressed that:

What is essential is the nature of the employees function and not the nomenclature or
title given to the job which determines whether the employee has rank­and­file or 
managerial status or whether he is a supervisory employee. (Emphasis supplied).[27]

WHEREFORE, the petition is hereby DENIED. Let the records of the case be
remanded to the office of origin, the Mediation-Arbitration Unit, Regional Branch
No. IV, for the immediate conduct of a certification election subject to the usual
pre-election conference.
SO ORDERED.
 Puno, (Chairman), Panganiban, Sandoval-Gutierrez and Corona,
JJ., concur.
3.2.2 Filing og Petition for Cancelation of Union;s registration is not per se an act
of ULP
3.2.3 Form and content of petition – DO40 R8 S4

3.3 When to file the Petition for CE

3.3.1 If unorganized establishment – at any time (B5 R5 S3-6)
RA 9481 sec 8 amending 256 LC
3.3.2 If organized establishment
RA 9481 sec 8 amending 256 LC
a. No duly registered CBA – at any time
b. With duly registered CBA
1. Contract bar rule – only during the freedom period
Art 232 LC,B5 R5 S4

FVC Labor Union-PGTWO vs. Sama Samang Nagkakaisang Mangggagawa sa FVC-

SIGLO, GR 176249, 27 November 2009

BRION, J.:

We pass upon the petition for review on certiorari under Rule 45 of the Rules of
Court[1] filed by FVC Labor UnionPhilippine Transport and General Workers
Organization (FVCLU-PTGWO) to challenge the Court of Appeals (CA) decision of July
25, 2006[2] and its resolution rendered on January 15, 2007[3] in C.A. G.R. SP No. 83292.
[4]

THE ANTECEDENTS

The facts are undisputed and are summarized below.

On December 22, 1997, the petitioner FVCLU-PTGWO the recognized bargaining agent
of the rank-and-file employees of the FVC Philippines, Incorporated (company) signed a
five-year collective bargaining agreement (CBA) with the company. The five-year CBA
period was from February 1, 1998 to January 30, 2003.[5] At the end of the 3rd year of the
five-year term and pursuant to the CBA, FVCLU-PTGWO and the company entered into
the renegotiation of the CBA and modified, among other provisions, the CBAs
duration. Article XXV, Section 2 of the renegotiated CBA provides that this re-
negotiation agreement shall take effect beginning February 1, 2001 and until May 31,
2003 thus extending the original five-year period of the CBA by four (4) months.

On January 21, 2003, nine (9) days before the January 30, 2003 expiration of the
originally-agreed five-year CBA term (and four [4] months and nine [9] days away from
the expiration of the amended CBA period), the respondent Sama-Samang Nagkakaisang
Manggagawa sa FVC-Solidarity of Independent and General Labor Organizations
(SANAMA-SIGLO) filed before the Department of Labor and Employment (DOLE) a
petition for certification election for the same rank-and-file unit covered by the FVCLU-
PTGWO CBA. FVCLU-PTGWO moved to dismiss the petition on the ground that the
certification election petition was filed outside the freedom period or outside of the sixty
(60) days before the expiration of the CBA on May 31, 2003.

Action on the Petition and Related Incidents

On June 17, 2003, Med-Arbiter Arturo V. Cosuco dismissed the petition on the ground
that it was filed outside the 60-day period counted from the May 31, 2003 expiry date of
the amended CBA.[6] SANAMA-SIGLO appealed the Med-Arbiters Order to the DOLE
Secretary, contending that the filing of the petition on January 21, 2003 was within 60-
days from the January 30, 2003 expiration of the original CBA term.

DOLE Secretary Patricia A. Sto. Tomas sustained SANAMA-SIGLOs position,

thereby setting aside the decision of the Med-Arbiter. [7]She ordered the conduct of a
certification election in the company. FVCLU-PTGWO moved for the reconsideration of
the Secretarys decision.

On November 6, 2003, DOLE Acting Secretary Manuel G. Imson granted the

motion; he set aside the August 6, 2003 DOLE decision and dismissed the petition as the
Med-Arbiters Order of June 17, 2003 did.[8] The Acting Secretary held that the amended
CBA (which extended the representation aspect of the original CBA by four [4] months)
had been ratified by members of the bargaining unit some of whom later organized
themselves as SANAMA-SIGLO, the certification election applicant. Since these
SANAMA-SIGLO members fully accepted and in fact received the benefits arising from
the amendments, the Acting Secretary rationalized that they also accepted the extended
term of the CBA and cannot now file a petition for certification election based on the
original CBA expiration date.

SANAMA-SIGLO moved for the reconsideration of the Acting Secretarys Order,

but Secretary Sto. Tomas denied the motion in her Order of January 30, 2004.[9]

SANAMA-SIGLO sought relief from the CA through a petition for certiorari

under Rule 65 of the Rules of Court based on the grave abuse of discretion the Labor
Secretary committed when she reversed her earlier decision calling for a certification
election. SANAMA-SIGLO pointed out that the Secretarys new ruling is patently
contrary to the express provision of the law and established jurisprudence.

THE CA DECISION

The CA found SANAMA-SIGLOs petition meritorious on the basis of the applicable

law[10] and the rules,[11] as interpreted in the congressional debates. It set aside the
challenged DOLE Secretary decisions and reinstated her earlier ruling calling for a
certification election.The appellate court declared:
 It is clear from the foregoing that while the parties may renegotiate the
other provisions (economic and non-economic) of the CBA, this should
not affect the five-year representation aspect of the original CBA. If the
duration of the renegotiated agreement does not coincide with but rather
exceeds the original five-year term, the same will not adversely affect the
right of another union to challenge the majority status of the incumbent
bargaining agent within sixty (60) days before the lapse of the original
five (5) year term of the CBA. In the event a new union wins in the
certification election, such union is required to honor and administer the
renegotiated CBA throughout the excess period.

FVCLU-PTGWO moved to reconsider the CA decision but the CA denied the

motion in its resolution of January 15, 2007. [12] With this denial, FVCLU-PTGWO now
comes before us to challenge the CA rulings.[13] It argues that in light of the peculiar
attendant circumstances of the case, the CA erred in strictly applying Section 11 (11b),
Rule XI, Book V of the Omnibus Rules Implementing the Labor Code, as amended by
Department Order No. 9, s. 1997.[14]

Apparently, the peculiar circumstances the FVCLU-PTGWO referred to relate to the

economic and other provisions of the February 1, 1998 to January 30, 2003 CBA that it
renegotiated with the company. The renegotiated CBA changed the CBAs remaining term
from February 1, 2001 to May 31, 2003. To FVCLU-PTGWO, this extension of the CBA
term also changed the unions exclusive bargaining representation status and effectively
moved the reckoning point of the 60-day freedom period from January 30, 2003 to May
30, 2003. FVCLU-PTGWO thus moved to dismiss the petition for certification election
filed on January 21, 2003 (9 days before the expiry date on January 30, 2003 of the
original CBA) by SANAMA-SIGLO on the ground that the petition was filed outside the
authorized 60-day freedom period.

It also submits in its petition that the SANAMA-SIGLO is estopped from

questioning the extension of the CBA term under the amendments because its members
are the very same ones who approved the amendments, including the expiration date of
the CBA, and who benefited from these amendments.

Lastly, FVCLU-PTGWO posits that the representation petition had been rendered
moot by a new CBA it entered into with the company covering the period June 1, 2003 to
May 31, 2008.[15]

Required to comment by the Court[16] and to show cause for its failure to comply,
[17]
SANAMA-SIGLO manifested on October 10, 2007 that: since the promulgation of the
CA decision on July 25, 2006 or three years after the petition for certification election
was filed, the local leaders of SANAMA-SIGLO had stopped reporting to the federation
office or attending meetings of the council of local leaders; the SANAMA-SIGLO
counsel, who is also the SIGLO national president, is no longer in the position to pursue
the present case because the local union and its leadership, who are principals of SIGLO,
had given up and abandoned their desire to contest the representative status of FVCLU-
PTGWO; and a new CBA had already been signed by FVCLU-PTGWO and the
company.[18] Under these circumstances, SANAMA-SIGLO contends that pursuing the
case has become futile, and accordingly simply adopted the CA decision of July 25, 2006
as its position; its counsel likewise asked to be relieved from filing a comment in the
case. We granted the request for relief and dispensed with the filing of a comment.[19]

THE COURTS RULING

While SANAMA-SIGLO has manifested its abandonment of its challenge to the

exclusive bargaining representation status of FVCLU-PTGWO, we deem it
necessary in the exercise of our discretion to resolve the question of law raised since
this exclusive representation status issue will inevitably recur in the future as
workplace parties avail of opportunities to prolong workplace harmony by
extending the term of CBAs already in place.[20]

The legal question before us centers on the effect of the amended or extended
term of the CBA on the exclusive representation status of the collective bargaining
agent and the right of another union to ask for certification as exclusive bargaining
agent. The question arises because the law allows a challenge to the exclusive
representation status of a collective bargaining agent through the filing of a certification
election petition only within 60 days from the expiration of the five-year CBA.

Article 253-A of the Labor Code covers this situation and it provides:

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.
 This Labor Code provision is implemented through Book V, Rule VIII of the
Rules Implementing the Labor Code[21] which states:

Sec. 14. Denial of the petition; grounds. The Med-Arbiter may

dismiss the petition on any of the following grounds:

xxxx

(b) the petition was filed before or after the freedom period of a
duly registered collective bargaining agreement; provided that
the sixty-day period based on the original collective bargaining
agreement shall not be affected by any amendment, extension
or renewal of the collective bargaining
agreement (underscoring supplied).

xxxx

The root of the controversy can be traced to a misunderstanding of the interaction

between a unions exclusive bargaining representation status in a CBA and the term or
effective period of the CBA.

FVCLU-PTGWO has taken the view that its exclusive representation status
should fully be in step with the term of the CBA and that this status can be challenged
only within 60 days before the expiration of this term. Thus, when the term of the CBA
was extended, its exclusive bargaining status was similarly extended so that the freedom
period for the filing of a petition for certification election should be counted back from
the expiration of the amended CBA term.

We hold this FVCLU-PTGWO position to be correct, but only with respect to

the original five-year term of the CBA which, by law, is also the effective period of the
unions exclusive bargaining representation status. While the parties may agree to extend
the CBAs original five-year term together with all other CBA provisions, any such
amendment or term in excess of five years will not carry with it a change in the unions
exclusive collective bargaining status. By express provision of the above-quoted Article
253-A, the exclusive bargaining status cannot go beyond five years and the representation
status is a legal matter not for the workplace parties to agree upon. In other words,
despite an agreement for a CBA with a life of more than five years, either as an original
provision or by amendment, the bargaining unions exclusive bargaining status is effective
only for five years and can be challenged within sixty (60) days prior to the expiration of
the CBAs first five years. As we said in San Miguel Corp. Employees UnionPTGWO, et
al. v. Confesor, San Miguel Corp., Magnolia Corp. and San Miguel Foods, Inc., [22] where
we cited the Memorandum of the Secretary of Labor and Employment dated February 24,
1994:

In the event however, that the parties, by mutual agreement, enter

into a renegotiated contract with a term of three (3) years or one which
 does not coincide with the said five-year term and said agreement is
ratified by majority of the members in the bargaining unit, the subject
contract is valid and legal and therefore, binds the contracting parties. The
same will however not adversely affect the right of another union to
challenge the majority status of the incumbent bargaining agent within
sixty (60) days before the lapse of the original five (5) year term of the
CBA.

In the present case, the CBA was originally signed for a period of five years, i.e.,
from February 1, 1998 to January 30, 2003, with a provision for the renegotiation of the
CBAs other provisions at the end of the 3 rd year of the five-year CBA term. Thus, prior to
January 30, 2001 the workplace parties sat down for renegotiation but instead of
confining themselves to the economic and non-economic CBA provisions, also extended
the life of the CBA for another four months, i.e., from the original expiry date on January
30, 2003 to May 30, 2003.

As discussed above, this negotiated extension of the CBA term has no legal effect
on the FVCLU-PTGWOs exclusive bargaining representation status which remained
effective only for five years ending on the original expiry date of January 30, 2003. Thus,
sixty days prior to this date, or starting December 2, 2002, SANAMA-SIGLO could
properly file a petition for certification election. Its petition, filed on January 21, 2003 or
nine (9) days before the expiration of the CBA and of FVCLU-PTGWOs exclusive
bargaining status, was seasonably filed.

We thus find no error in the appellate courts ruling reinstating the DOLE order for
the conduct of a certification election. If this ruling cannot now be given effect, the only
reason is SANAMA-SIGLOs own desistance; we cannot disregard its manifestation that
the members of SANAMA themselves are no longer interested in contesting the
exclusive collective bargaining agent status of FVCLU-PTGWO. This recognition is
fully in accord with the Labor Codes intent to foster industrial peace and harmony in the
workplace.
WHEREFORE, premises considered, we AFFIRM the correctness of the
challenged Decision and Resolution of the Court of Appeals and
accordingly DISMISS the petition, but nevertheless DECLARE that no certification
election, pursuant to the underlying petition for certification election filed with the
Department of Labor and Employment, can be enforced as this petition has effectively
been abandoned.

SO ORDERED.

2) ONE YEAR BAR RULE B5R 5 S 3 IRR

SECTION 3. When to file. — In the absence of a collective bargaining
agreement duly registered in accordance with Article 231 of the Code,
a petition for certification election may be filed at any time. However,
no certification election may be held within one year from the
date of issuance of a final certification election result. Neither
may a representation question be entertained if, before the filing of a
petition for certification election, a bargaining deadlock to which an
incumbent or certified bargaining agent is a party had been submitted
to conciliation or arbitration or had become the subject of a valid
notice of strike or lockout. cralaw

If a collective bargaining agreement has been duly registered in

accordance with Article 231 of the Code, a petition for certification
election or a motion for intervention can only be entertained within
sixty (60) days prior to the expiry date of such agreement. cralaw

3) DEADLOCK BAR RULE B5 R5 S3

SECTION 3. When to file. — In the absence of a collective bargaining
agreement duly registered in accordance with Article 231 of the Code,
a petition for certification election may be filed at any time. However,
no certification election may be held within one year from the date of
issuance of a final certification election result. Neither may a
representation question be entertained if, before the filing of a
petition for certification election, a bargaining deadlock to
which an incumbent or certified bargaining agent is a party had
been submitted to conciliation or arbitration or had become the
subject of a valid notice of strike or lockout. cralaw

If a collective bargaining agreement has been duly registered in

accordance with Article 231 of the Code, a petition for certification
election or a motion for intervention can only be entertained within
sixty (60) days prior to the expiry date of such agreement. cralaw

4. Denial of Petition for Certification Election

4.1 Grounds for denial – DO 40 R8 S14-15
Section 14. Denial of the petition; Grounds. ­ The Med­Arbiter may dismiss the petition on any of the 
following grounds: 
(a) the petitioner is not listed in the Department's registry of legitimate labor unions or that its legal 
personality has been revoked or cancelled with finality in accordance with Rule XIV of these Rules; 
(b) the petition was filed before or after the freedom period of a duly registered collective bargaining 
agreement; provided that the sixty­day period based on the original collective bargaining agreement shall 
not be affected by any amendment, extension or renewal of the collective bargaining agreement; 
(c) the petition was filed within one (1) year from entry of voluntary recognition or a valid certification, 
consent or run­off election and no appeal on the results of the certification, consent or run­off election is 
pending; 
(d) a duly certified union has commenced and sustained negotiations with the employer in accordance with 
Article 250 of the Labor Code within the one­year period referred to in Section 14.c of this Rule, or there 
exists a bargaining deadlock 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 a party; 
(e) in case of an organized establishment, failure to submit the twenty­five percent (25%) support 
requirement for the filing of the petition for certification election. 

Section 15. Prohibited grounds for the denial/suspension of the petition. ­ All issues pertaining to the 
existence of employer­employee relationship, eligibility or mixture in union membership raised before the 
Med­Arbiter during the hearing(s) and in the pleadings shall be resolved in the same order or decision 
granting or denying the petition for certification election. Any question pertaining to the validity of 
petitioning union's 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 MedArbiter in the 
petition for certification election, unless the petitioning union is not found in the Department's roster of 
legitimate labor organizations or an existing collective bargaining agreement is unregistered with the 
Department.

4.2 Appellate procedure in case o denial – DO 40 R8 S17-22

Section 17. Appeal. ­ The order granting the conduct of a certification election in an unorganized 
establishment shall not be subject to appeal. Any issue arising therefrom may be raised by means of protest 
on the conduct and results of the certification election. The order granting the conduct of a certification 
election in an organized establishment and the decision dismissing or denying the petition, whether in an 
organized or unorganized establishment, may be appealed to the Office of the Secretary within ten (10) 
days from receipt thereof. The appeal shall be verified 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. 

Section 18. Where to file 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 
twenty­four (24) hours from 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. 

Section 19. Finality of Order/Decision. ­ Where no appeal is filed within the ten­day period, the Med­ 
Arbiter shall enter the finality of the order/decision in the records of the case and cause the transmittal of 
the records of the petition to the Regional Director. 

Section 20. Period to Reply. ­ A reply to the appeal may be filed by any party to the petition within ten (10)
days from receipt of the memorandum of appeal. The reply shall be filed directly with the Office of the 
Secretary. 

Section 21. Decision of the Secretary. ­ The Secretary shall have fifteen (15) days from receipt of the entire 
records of the petition within which to decide the appeal. The filing of the memorandum of appeal from the
order or decision of the Med­Arbiter stays the holding of any certification election. The decision of the 
Secretary shall become final and executory after ten (10) days from receipt thereof by the parties. No 
motion for reconsideration of the decision shall be entertained. 

Section 22. Transmittal of records to the Regional Office. ­ Within forty­eight (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 implementation. Implementation of the decision shall not be 
stayed unless restrained by the appropriate court
5. Procedure in the Conduct of the Certification Elections
5.1 Raffle and pre-election conference
5.2 Qualification of voters; inclusion-exclusion proceedings

NUHRWRAIN – Manila Pavilion Hotel Chapter vs. Sec. of Labor, BLR, et al., GR
No.181531, 31 July 2009 (supra – as to won probee may vote)

5.3 Voting proper

5.4 challenging the votes; on-the spot questions
5.5 canvass of votes
5.6 certification of collective bargaining agent

6. Run-off Elections – DO9 Rule XIII; DO 40, R10

DO9 Rule XIII -RUN-OF

Section1. Run-off election. - When an election which provides for three (3) or
more choices results in no choice receiving a majority of the valid votes cast, and
no objections or challenges have been presented which, if sustained, can
materially change the results, the election officer shall motu pro prio conduct a
run-off election within five (5) calendar days from the close of the election
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 fifty
percent (50%) of the number of votes cast.

The voters' list to be used in the run-off election shall be the same list as that
used in the first election. The ballots in the run-off election shall provide as
choices the unions receiving the highest and the second highest number of the
votes cast. The union receiving the greater number of valid votes cast shall be
certified as the winner, subject to the applicable provisions of Rule XII of this
Book.

DO 40, R10- RUN-OFF ELECTIONS

Section 1. When proper. - When an election which provides for three (3) 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 ten (10) days from the close of the election 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 fifty (50%)
percent of the number of votes cast.

"No Union" shall not be a choice in the run-off election.

Notice of run-off elections shall be posted by the Election Officer at least five (5)
days before the actual date of run-off election.
Section 2. Qualification of voters. - The same voters' list used in the certification
election shall be used in the run-off election. The ballots in the run-off election
shall provide as choices the unions receiving the highest and second highest
number of the votes cast. The labor union receiving the greater number of valid
votes cast shall be certified as the winner, subject to Section 20, Rule IX.

7. Failure of elections – DO40 RIX S17, 18

Section 17. 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.

Section 18. 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 six (6) months from date of declaration of failure of election.

INTER-UNION AND INTRA-UNION DISPUTES

DOLE Department Order No. 40-03, series of 2003
1. What are inter- or intra-union disputes [DO40, s1&2].

De la Salle University vs. De la Salle University Employees Association.

G.R. No. 169254, 23 August 2012

LEONARDO-DE CASTRO, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the Rules
of Court assailing the March 4, 2005 Decision 1 and August 5, 2005 Resolution2
of the Court of Appeals in CA-G.R. SP No. 82472, entitled De La Salle University
versus the Honorable Secretary of Labor and De La Salle University Employees
Association (DLSUEA-NAFTEU), which affirmed the November 17, 2003
Decision3 and January 20, 2004 Order4 of the Secretary of Labor in OS-AJ-0033-
2003 (NCMB-NCR-NS-08-246-03). These decisions and resolutions consistently
found petitioner guilty of unfair labor practice for failure to bargain collectively
with respondent.

This petition involves one of the three notices of strike filed by respondent De La
Salle University Employees Association (DLSUEANAFTEU) against petitioner De
La Salle University due to its refusal to bargain collectively with it in light of the
intra-union dispute between respondent’s two opposing factions. The following
narration of facts will first discuss the circumstances surrounding the said intra-
union conflict between the rival factions of respondent union and, thereafter,
recite the cases relating to the aforementioned conflict, from the complaint for
unfair labor practice to the subsequent notices of strike, and to the assumption of
jurisdiction by the Secretary of Labor.
Petition for Election of Union
Officers

On May 30, 2000, some of respondent’s members headed by Belen Aliazas (the
Aliazas faction) filed a petition for the election of union officers in the Bureau of
Labor Relations (BLR).5 They alleged therein that there has been no election for
respondent’s officers since 1992 in supposed violation of the respondent union’s
constitution and by-laws which provided for an election of officers every three
years.6 It would appear that respondent’s members repeatedly voted to approve
the hold-over of the previously elected officers led by Baylon R. Bañez (Bañez
faction) and to defer the elections to expedite the negotiations of the economic
terms covering the last two years of the 1995-2000 collective bargaining
agreement (CBA)7 pursuant to Article 253-A of the Labor Code.8

On March 19, 2001, BLR Regional Director Alex E. Maraan issued a Decision
ordering the conduct of an election of union officers to be presided by the Labor
Relations Division of the Department of Labor and Employment-National Capital
Region (DOLE-NCR).9 He noted therein that the members of the Bañez faction
were not elected by the general membership but were appointed by the
Executive Board to their positions since 1985. 10

The Bañez faction appealed the said March 19, 2001 Decision of the BLR
Regional Director.

While the appeal was pending, the Aliazas faction filed a Very Urgent Motion for
Intervention in the BLR. They alleged therein that the Bañez faction, in complete
disregard of the March 19, 2001 Decision, scheduled a "regular" election of union
officers without notice to or participation of the DOLE-NCR. 11

In an Order dated July 6, 2001, BLR Director IV Hans Leo J. Cacdac granted the
motion for intervention.12 He held that the unilateral act of setting the date of
election on July 9, 2001 and the disqualification of the Aliazas faction by the
DLSUEA-COMELEC supported the intervening faction’s fear of biased
elections.13

Thereafter, in a Resolution dated May 23, 2002, BLR Director Cacdac dismissed
the appeal of the Bañez faction. The salient portions thereof stated:

The exercise of a union member’s basic liberty to choose the union leadership is
guaranteed in Article X of [respondent’s] constitution and by-laws. Section 4
mandates the conduct of a regular election of officers on the first Saturday of July
and on the same date every three years thereafter.

In unequivocal terms, Article 241(c) of the Labor Code states that "[t]he members
shall directly elect their officers, including those of the national union or
federation, to which they or their union is affiliated, by secret ballot at intervals of
five (5) years."

[The Bañez faction] admitted that no elections were conducted in 1992 and
1998, when the terms of office of the officers expired. This Office emphasizes
that even the decision to dispense with the elections and allow the hold-over
officers to continue should have been subjected to a secret ballot under Article
241(d) which states:

The members shall determine by secret ballot, after due deliberation, any
question of major policy affecting the entire membership of the organization,
unless the nature of the organization or force majeure renders such secret ballot
impractical, in which case the board of directors of the organization may make
the decision in behalf of the general membership.

With the clear and open admission that no election transpired even after
the expiration of the union officers’ terms of office, the call for the conduct
of elections by the Regional Director was valid and should be
sustained.14 (Emphases supplied.)

Subsequently, in a memorandum dated May 16, 2003, BLR Director Cacdac

stated that there was no void in the union leadership as the March 19, 2001
Decision of Regional Director Maraan did not automatically terminate the Bañez
faction’s tenure in office. He explained therein that "[a]s duly-elected officers of
[respondent], their leadership is not deemed terminated by the expiration of their
terms of office, for they shall continue their functions and enjoy the rights and
privileges pertaining to their respective positions in a hold-over capacity, until
their successors shall have been elected and qualified." 15

On August 28, 2003, an election of union officers under the supervision of the
DOLE was conducted. The Bañez faction emerged as the winner thereof. 16 The
Aliazas faction contested the election results.

On October 29, 2003, the Bañez faction was formally proclaimed as the winner in
the August 28, 2003 election of union officers. 17

The Complaint for Unfair Labor

Practices and Three Notices of
Strike

On March 20, 2001, despite the brewing conflict between the Aliazas and Bañez
factions, petitioner entered into a five-year CBA covering the period from June 1,
2000 to May 31, 2005.18

On August 7, 2001, the Aliazas faction wrote a letter to petitioner requesting it to

place in escrow the union dues and other fees deducted from the salaries of
employees pending the resolution of the intra-union conflict. We quote the
pertinent portion of the letter here:

The [BLR], in its March 19, 2001 [decision], declared that the hold-over capacity
as president of Mr. Baylon Bañez, as well as that of the other officers [of
respondent] has been extinguished. It was likewise stated in the [decision] that
"to further defer the holding of a local election is whimsical, capricious and is a
violation of the union members’ rights under Article 241 and is punishable by
expulsion."

This being so, we would like to request [petitioner] to please put on escrow all
union dues/agency fees and whatever money considerations deducted from
salaries of the concerned co-academic personnel until such time that an election
of union officials has been scheduled and subsequent elections has been held.
We fully understand that putting the collection on escrow means the continuance
of our monthly deductions but the same will not be remitted to respondent’s
funds.19

Petitioner acceded to the request of the Aliazas faction and informed the Bañez
faction of such fact in a letter dated August 16, 2001. Petitioner explained:

It is evident that the intra-union dispute between the incumbent set of officers of
your Union on one hand and a sizeable number of its members on the other
hand has reached serious levels. By virtue of the 19 March 2001 Decision and
the 06 July 2001 Order of the Department of Labor and Employment (DOLE), the
hold-over authority of your incumbent set of officers has been considered
extinguished and an election of new union officers, to be conducted and
supervised by the DOLE, has been directed to be held. Until the result of this
election [come] out and a declaration by the DOLE of the validly elected
officers is made, a void in the Union leadership exists.

In light of these circumstances, the University has no other alternative but to

temporarily do the following:

1. Establish a savings account for the Union where all the collected union
dues and agency fees will be deposited and held in trust; and

2. Discontinue normal relations with any group within the Union including
the incumbent set of officers.

We are informing you of this decision of [petitioner] not only for your guidance but
also for the apparent reason that [it] does not want itself to be unnecessarily
involved in your intra-union dispute. This is the only way [petitioner] can maintain
neutrality on this matter of grave concern.20 (Emphasis supplied.)
In view of the foregoing decision of petitioner, respondent filed a complaint for
unfair labor practice in the National Labor Relations Commission (NLRC) on
August 21, 2001.21 It alleged that petitioner committed a violation of Article 248(a)
and (g) of the Labor Code which provides:

Article 248. Unfair labor practices of employers. It shall be unlawful for an

employer to commit any of the following unfair labor practice:

(a) To interfere with, restrain or coerce employees in the exercise of their right to
self-organization.

xxxx

(d) To initiate, dominate, assist or otherwise interfere with the formation or

administrator of any labor organization, including the giving of financial or other
support to it or its organizers or supporters.

Respondent union asserted that the creation of escrow accounts was not an act
of neutrality as it was influenced by the Aliazas factions’s letter and was an act of
interference with the internal affairs of the union. Thus, petitioner’s non-
remittance of union dues and discontinuance of normal relations with it
constituted unfair labor practice.

Petitioner, for its defense, denied the allegations of respondent and insisted that
its actions were motivated by good faith.

Meanwhile, on March 7, 2002, respondent filed a notice of strike in the National

Conciliation and Mediation Board (NCMB). 22

Shortly thereafter, or on July 12, 2002, Labor Arbiter Felipe P. Pati dismissed the
August 21, 2001 complaint for unfair labor practice against petitioner for lack of
merit in view of the May 23, 2002 decision of the BLR, affirming the need to
conduct an election of the union’s officers. 23 The labor arbiter, in effect, upheld the
validity of petitioner’s view that there was a void in the leadership of respondent.

The July 12, 2002 Decision of Labor Arbiter Pati, however, did not settle matters
between respondent and petitioner.

On March 15, 2003, respondent sent a letter to petitioner requesting for the
renegotiation of the economic terms for the fourth and fifth years of the then
current CBA, to wit:

This refers to the re-negotiation of the economic provisions for the [fourth and
fifth] year[s] of the 2000-2005 [CBA] that will commence sometime in March
2003.
In this regard, the [Bañez faction] for and in behalf of [respondent] would like to
respectfully request your good office to provide us a copy of the latest Audited
Financial Statements of [petitioner,] including its budget performance report so
that [petitioner] and [respondent through] their respective authorized
representatives could facilitate the negotiations thereof.

We are furnishing [petitioner through] your good self a copy of [our] CBA
economic proposals for the [fourth and fifth] year[s] of the 2000-2005 CBA signed
by its authorized negotiating panel.

We also request [petitioner] to furnish us a copy of its counter proposals as well

as a list of its negotiating panel not later than ten (10) days from receipts of [our]
CBA proposals so that [we] and [petitioner] can now proceed with the initial
conference to discuss the ground rules that will govern the CBA negotiation. 24

In a letter dated March 20, 2003,25 petitioner denied respondent’s request. It

stated therein:

Pursuant to the [d]ecisions of appropriate government authority, and consistent

with the position enunciated and conveyed to you by [petitioner] in my letter
dated August 16, 2001, there is a conclusion of fact that there is an absolute
void in the leadership of [respondent]. Accordingly, your representation as
President or officer of, as well as, that of all persons purporting to be officers and
members of the board of the said employees association [will] not [be]
recognized. Normal relations with the union cannot occur until the said void
in the leadership of [respondent] is appropriately filled. Affected by the
temporary suspension of normal relations with [respondent] is the
renegotiation of the economic provisions of the 2002-2005 CBA. No
renegotiation can occur given the void in the leadership of [respondent.]26

As a consequence of the aforementioned letter, respondent filed a second notice

of strike on April 4, 2003.27 Upon the petition filed by petitioner on April 11,
2003,28 the Secretary of Labor assumed jurisdiction over the matter pursuant to
Article 263 of the Labor Code29 as petitioner, an educational institution, was
considered as belonging to an industry indispensable to national interest and
docketed the case as OS-AJ-0015-2003.30

On June 26, 2003, the Second Division of the NLRC affirmed the July 12, 2002
Decision of Labor Arbiter Pati.31Respondent moved for reconsideration but it was
denied by the NLRC in a Resolution dated September 30, 2003. 32

Meanwhile, on July 28, 2003, the Secretary of Labor issued a Decision 33 in OS-
AJ-0015-2003, finding petitioner guilty of violating Article 248(g) in relation to
Article 252 of the Labor Code.34 The salient portion thereof stated:
The University is guilty of refusal to bargain amounting to an unfair labor practice
under Article 248(g) of the Labor Code. Indeed there was a requirement on both
parties of the performance of the mutual obligation to meet and convene
promptly and expeditiously in good faith for the purpose of negotiating an
agreement. Undoubtedly, both [petitioner] and [respondent] entered into a [CBA]
on [March 20, 2001. The term of the said CBA commenced on [June 1, 2000 and
with the expiration of the economic provisions on the third year, [respondent]
initiated negotiation by sending a letter dated March 15, 2003, together with the
CBA proposal. In reply to the letter of [respondent], [petitioner] in its letter dated
[March 20, 2003 refused.

Such an act constituted an intentional avoidance of a duty imposed by law. There

was nothing in the [March 19, 2001 and July 6, 2001 orders] of Director Maraan
and Cacdac which restrained or enjoined compliance by the parties with their
obligations under the CBA and under the law. The issue of union leadership is
distinct and separate from the duty to bargain.

In fact, BLR Director Cacdac clarified that there was no void in [respondent’s]
leadership. The pertinent decision dated March 19, 2001 x x x reads 35 :

We take this opportunity to clarify that there is no void in [respondent’s]

leadership. The [March 19, 2001 decision] x x x should not be construed as an
automatic termination of the incumbent officers[’] tenure of office. As duly-elected
officers of [respondent], their leadership is not deemed terminated by the
expiration of their terms of office, for they shall continue their functions and enjoy
the rights and privileges pertaining to their respective positions in a hold-over
capacity, until their successors shall have been elected and qualified.

It is thus very clear. x x x. This official determination by the BLR Director [Cacdac]
removes whatever cloud of doubt on the authority of the incumbent to negotiate
for and in behalf of [respondent] as the bargaining agent of all the covered
employees. [Petitioner] is duty bound to negotiate collectively pursuant to Art.
252 of the Labor Code, as amended.

xxxx

On the question: [i]s [petitioner] guilty of unfair labor practice? This office resolves
the issue in the affirmative. Citing the case of the Divine Word University of
Tacloban v. Secretary of Labor, [petitioner] is guilty of unfair labor practice in
refusing to abide by its duty to bargain collectively. The refusal of [petitioner] to
bargain is tainted with bad faith amounting to unfair labor practice. There is no
other way to resolve the issue given the facts of the case and the law on the
matter.

WHEREFORE, premises considered, this Office finds [petitioner] guilty of refusal

to bargain collectively in violation of Article 252 in relation to Article 248 of the
Labor Code, as amended. Management is hereby directed to cease and desist
from refusing to bargain collectively. The parties are therefore directed to
commence negotiations effective immediately.36 (Citations omitted.)

On August 1, 2003, respondent reiterated its demand on petitioner to bargain

collectively pursuant to the aforementioned Decision of the Secretary of Labor. 37

On August 4, 2003, petitioner sent a letter to respondent explaining that it cannot

act on the latter’s letter. The August 4, 2003 letter of petitioner stated:

[Petitioner’s] counsel is preparing a Motion for Reconsideration that would be

filed with the Office of the Secretary of Labor and Employment. Under the Rule,
[petitioner] still has the remedy of filing such Motion with the Office of the
Secretary before elevating the matter to higher authorities should it become
necessary.

We, therefore, regret to advise you that [petitioner] cannot accede to your
demand to immediately commence negotiations for the CBA with your group or
any other group of Union members, as the case may be, until such time that the
case before the Secretary is resolved with finality. We will, therefore, continue to
defer the CBA negotiations pending final resolution of the matter.

As regards your other demands, [petitioner] is of the position that the matters
subject of said demands are still pending before the various offices of the Labor
Arbiters and NLRC and, therefore, it cannot act on the same until such time that
said cases are likewise resolved with finality. It cannot be assumed that all these
cases that you filed have been rendered moot and academic by the Secretary’s
Decision, otherwise you would, in effect, be admitting that you have engaged in
"forum shopping."38

Failing to secure a reconsideration of the July 28, 2003 Decision of the Secretary
of Labor, petitioner assailed the same in the Court of Appeals via a petition
for certiorari docketed as CA-G.R. SP No. 81649.

On August 27, 2003, respondent filed the third notice of strike, 39 in the wake of
petitioner’s August 4, 2003 letter and citing among others petitioner’s alleged
violation of the CBA and continuing refusal to bargain in good faith. Petitioner, on
the other hand, filed a petition for assumption of jurisdiction for this third notice of
strike.40 Again, the Secretary of Labor assumed jurisdiction. This case was
docketed as OS-AJ-0033-2003.

On November 17, 2003, the Secretary of Labor, in resolving OS-AJ-0033-2003,

cited the July 28, 2003 Decision in OS-AJ-0015-2003, and consequently
declared that petitioner committed an unfair labor practice. The salient portions of
said Decision stated:
Considering that this case, docketed as Case No. OS-AJ-0033-2003 is
based on the same set of facts with another case, involving the same
parties numbered as OS-AJ-0015-2003, and based on the same factual and
legal circumstances, we have to consistently hold that the [petitioner] has
indeed failed to comply with its obligation under the law. As a matter of fact,
it admits in persisting to refuse despite the fact that there is no more legal
obstacle preventing the commencement of the Collective Bargaining Negotiation
between the parties. Anent the so called void in the Union leadership, We
declared that the same does not constitute a valid ground to refuse to
negotiate because [petitioner’s] duty to bargain under the law is due and
demandable under the law by [respondent] as a whole and not by any
faction within the union.

xxxx

x x x Events have lately turned out in favor of [respondent], thereby obliterating

any further justification on the part of [petitioner] not to bargain. On October 29,
2003, the new Regional Director of DOLENCR, Ciriaco E. Lagunzad III,
issued a resolution declaring the Bañez group as the duly elected officers
of the Union. x x x.

xxxx

The above election results were the outcome of a duly-held union election,
supervised by the Department’s Regional Office. This was the election
ordered in the [July 6, 2001 and March 19, 2001 orders of the BLR]. This
was also the same election invoked by [petitioners] in trying to justify it
continuing refusal to bargain.

The [members of the Bañez faction have] reportedly taken their oath of office and
have qualified. [Petitioner] is now under estoppel from recognizing them,
considering that it committed in writing to recognize and commence bargaining
once a set of duly elected officers [is] proclaimed after an election duly conducted
under the supervision of the Department.

xxxx

Not only has [petitioner] refused to negotiate with [respondent], it has unduly
withheld the money belonging to the bargaining agent. Both these acts are
illegal and are tantamount to Unfair Labor Practice under Article 248 in
relation to Article 252 of the Labor Code x x x.

ACCORDINGLY, all the foregoing premises being duly considered, this Office
hereby declares that [petitioner] committed Unfair Labor Practice in violation of
[Article 248 in relation to Article 252 of the Labor Code x x x. [Petitioner] and its
duly authorized officers and personnel are therefore ordered to cease and desist
from committing said acts under pain of legal sanction.

[Petitioner] is therefore specifically directed to commence collective bargaining

negotiation with [respondents] without further delay and to immediately turn over
to the Bañez group the unlawfully withheld union dues and agency fees with legal
interest corresponding to the period of the unlawful withholding. All these specific
directives should be done within ten (10) days from receipt of this Decision and
with sufficient proof of compliance herewith to be submitted immediately
thereafter.41

In accordance with the terms of the aforementioned Decision, petitioner turned

over to respondent the collected union dues and agency fees from employees
which were previously placed in escrow amounting to ₱ 441,924.99. 42

Nonetheless, petitioner moved for the reconsideration of the November 17, 2003
Decision of the Secretary of Labor but it was denied in an Order dated January
20, 2004.

Aggrieved, petitioner filed a petition for certiorari under Rule 65 of the Rules of
Court with the Court of Appeals. Petitioner alleged therein that the Secretary of
Labor committed grave abuse of discretion by holding that it (petitioner) was
liable for unfair labor practice. Taking a contrary stance to the findings of the
Secretary of Labor, petitioner stressed that it created the escrow accounts for the
benefit of the winning faction and undertook temporary measures in light of the
March 19, 2001 and July 6, 2001 Orders of the BLR. Thus, it should not be
penalized for taking a hands-off stance in the intra-union controversy between
the Aliazas and Bañez factions.

In a Decision dated March 4, 2005, the Court of Appeals affirmed the November
17, 2003 Decision and January 20, 2004 Order of the Secretary of Labor and
dismissed the said petition. It held:

[Petitioner] finds reason to refuse to negotiate with [respondent’s incumbent

officers] because of the alleged "void in the union leadership" declared by the
Regional Director in his March 19, 2001 decision, [but] after the election of the
union officers held on August 28, 2003, continued refusal by the University to
negotiate amounts to unfair labor practice. The non-proclamation of the newly
elected union officers cannot be used as an excuse to fulfill the duty to
bargain collectively.43 (Emphasis supplied.)

Petitioner moved for reconsideration but it was denied in a Resolution dated

August 5, 2005. The Court of Appeals noted that petitioner’s arguments were a
mere "rehash of the issues and discussions it presented in its petition and in the
relevant pleadings submitted x x x."44
Meanwhile, the Court of Appeals dismissed CA-G.R. SP No. 81649 (which
assailed the July 28, 2003 Decision in OS-AJ-0015-2003), in a Decision dated
March 18, 2005.45 The said decision likewise found that petitioner erred in
unilaterally suspending negotiations with respondent since the pendency of the
intra-union dispute was not a justifiable reason to do so.

Petitioner moved for reconsideration of the aforesaid decision in CAG. R. SP No.

81649 but it was denied in a Resolution dated June 7, 2005 46 due to lack of merit.

Aggrieved, petitioner elevated both the assailed decisions and resolutions in this
case and in CA-G.R. SP No. 81649, which was docketed as G.R. No. 168477, to
this Court. Petitioner, in both instances, essentially argued that it did not
maliciously evade its duty to bargain. On the contrary, it asserts that it merely
relied in good faith on the March 19, 2001 Decision of the BLR that there was a
void in respondent’s leadership.47

This Court, through its Third Division, denied G.R. No. 168477 in a minute
resolution dated July 20, 2005 due to the petition’s "failure x x x to show that a
reversible error had been committed by the appellate court." 48 The motion for
reconsideration was denied with finality on September 21,

200549 and entry of judgment was made on November 3, 2005. 50

Meanwhile, respondent was ordered to file a comment herein, and, subsequently,

this petition was given due course.

We note that both G.R. No. 168477 and this petition are offshoots of petitioner’s
purported temporary measures to preserve its neutrality with regard to the
perceived void in the union leadership. While these two cases arose out of
different notices to strike filed on April 3, 2003 and August 27, 2003, it is
undeniable that the facts cited and the arguments raised by petitioner are almost
identical. Inevitably, G.R. No. 168477 and this petition seek only one
relief, that is, to absolve petitioner from respondent’s charge of committing
an unfair labor practice, or specifically, a violation of Article 248(g) in
relation to Article 252 of the Labor Code.

For this reason, we are constrained to apply the law of the case doctrine in light
of the finality of our July 20, 2005 and September 21, 2005 resolutions in G.R.
No. 168477. In other words, our previous affirmance of the Court of Appeals’
finding – that petitioner erred in suspending collective bargaining negotiations
with the union and in placing the union funds in escrow considering that the intra-
union dispute between the Aliazas and Bañez factions was not a justification
therefor — is binding herein. Moreover, we note that entry of judgment in G.R.
No. 168477 was made on November 3, 2005, and that put to an end to the
litigation of said issues once and for all.51
The law of the case has been defined as the opinion delivered on a former
appeal. It means that whatever is once irrevocably established as the controlling
legal rule or decision between the same parties in the same case continues to be
the law of the case, whether correct on general principles or not, so long as the
facts on which such decision was predicated continue to be the facts of the case
before the court.52

In any event, upon our review of the records of this case, we find that the Court
of Appeals committed no reversible error in its assailed Decision dated March 4,
2005 and Resolution dated August 5, 2005. Petitioner’s reliance on the July 12,
2002 Decision of Labor Arbiter Pati, and the NLRC’s affirmance thereof, is
misplaced. The unfair labor practice complaint dismissed by Labor Arbiter Pati
questioned petitioner’s actions immediately after the March 19, 2001 Decision of
BLR Regional Director Maraan, finding that "the reason for the hold-over [of the
previously elected union officers] is already extinguished." The present
controversy involves petitioner’s actions subsequent to (1) the clarification of said
March 19, 2001 Maraan Decision by BLR Director Cacdac who opined in a May
16, 2003 memorandum that the then incumbent union officers (i.e., the Bañez
faction) continued to hold office until their successors have been elected and
qualified, and (2) the July 28, 2003 Decision of the Secretary of Labor in OS-AJ-
0015-2003 ruling that the very same intra-union dispute (subject of several
notices of strike) is insufficient ground for the petitioner to suspend CBA
negotiations with respondent union. We take notice, too, that the aforesaid
Decision of Labor Arbiter Pati has since been set aside by the Court of Appeals
and such reversal was upheld by this Court’s Second Division in its Decision
dated April 7, 2009 in G.R. No. 177283, wherein petitioner was found liable for
unfair labor practice.53

Neither can petitioner seek refuge in its defense that as early as November 2003
it had already released the escrowed union dues to respondent and normalized
relations with the latter. The fact remains that from its receipt of the July 28, 2003
Decision of the Secretary of Labor in OS-AJ-0015-2003 until its receipt of the
November 17, 2003 Decision of the Secretary of Labor in OS-AJ-0033-2003,
petitioner failed in its duty to collectively bargain with respondent union without
valid reason. At most, such subsequent acts of compliance with the issuances in
OS-AJ-0015-2003 and OS-AJ-0033-2003 merely rendered moot and academic
the Secretary of Labor’s directives for petitioner to commence collective
bargaining negotiations within the period provided.

To conclude, we hold that the findings of fact of the Secretary of Labor and the
Court of Appeals, as well as the conclusions derived therefrom, were amply
supported by evidence on record. Thus, in line with jurisprudence that such
findings are binding on this Court, we see no reason to disturb the same. 54

WHEREFORE, the petition is DENIED.

SO ORDERED.

2. What are effects of pendency of inter- or intra-union disputes [DO40, s3].

RXI
Section 3. Effects of the filing/pendency of inter/intra-union and other related
labor relations disputes. - The rights, relationships and obligations of the parties
litigants against each other and other parties-in-interest prior to the institution of
the petition shall continue to remain during the pendency of the petition and until
the date of finality of the decision rendered therein. Thereafter, the rights,
relationships and obligations of the parties litigants against each other and other
parties-in-interest shall be governed by the decision so ordered. The filing or
pendency of any inter/intra-union dispute and other related labor relations dispute
is not a prejudicial question to any petition for certification election and shall not
be a ground for the dismissal of a petition for certification election or suspension
of proceedings for certification election.

3. Who may file an inter- or intra-union disputes [DO40, s4].

RXI
Section 4. Who may file. - Any legitimate labor organization or member(s) thereof
specially concerned may file a complaint or petition involving disputes or issues
enumerated in Section 1 hereof. Any party in-interest may file a complaint or
petition involving disputes or issues enumerated in Section 2 hereof. Where the
issue involves the entire membership of the labor organization, the complaint or
petition shall be supported by at least thirty percent (30%) of its members.

4. Where to file inter- or intra-union disputes.

Section 5. Where to file. - Complaints or petitions involving labor unions with
independent registrations, chartered locals, workers' associations, its officers or
members shall be filed with the Regional Office that issued its certificate of
registration or certificate of creation of chartered local. Complaints involving
federations, national unions, industry unions, its officers or member organizations
shall be filed with the Bureau. Petitions for cancellation of registration of labor
unions with independent registration, chartered locals and workers association
and petitions for deregistration of collective bargaining agreements shall be
resolved by the Regional Director. He/She may appoint a Hearing Officer from
the Labor Relations Division. Other inter/intra-union disputes and related labor
relations disputes shall be heard and resolved by the Med-Arbiter in the Regional
Office. Complaints or petitions involving federations, national or industry unions,
trade union centers and their chartered locals, affiliates or member organizations
shall be filed either with the Regional Office or the Bureau. The complaint or
petition shall be heard and resolved by the Bureau. When two or more petitions
involving the same parties and the same causes of action are filed, the same
shall be automatically consolidated.
COLLECTIVE BARGAINING
Department Order No. 9. [21 June 1997], and
Department Order No. 40, [17 February 2003]
1. Duty to bargain collectively
Divine Word Univ. vs. NLRC, 213 SCRA 759
Colegio de San Juan de Letran vs. Assn of Employees and Faculty of Letran,
340 SCRA 587 [2000]
Standard Chartered Bank Employees Union (NUBE) vs. Secretary Nieves
Confesor and Standard Chartered Bank, GR No. 11497, 16 June 2004
Insular Life Assurance Employees-NATO vs. Insular Life Assurance Ltd., 76
SCRA 50
2. What are bargainable issues - Art. 252, LC
3. Bargaining Deadlock
Capitol Medical Center Alliance of Concerned Employees vs. Laguesma, 267
SCRA 503
San Miguel Food vs. SMC Employees Unino – PTGWO, 535 SCRA 133

COLLECTIVE BARGAINING AGREEMENT

Department Order No. 9. [21 June 1997], and
Department Order No. 40, [17 February 2003]
1. Definition - B5 R1 S1 (jj), IRR
Davao Integrated Port Stevedoring vs. Abarquez, 220 SCRA 197
PT&T vs. NLRC, 245 SCRA 193 [1995
2. Contents
RFM Corp Flour Division vs. KAMPI-NAFLU-KMU, GR No. 162324, 04 February
2009
San Miguel Corp. vs. NLRC, 204 SCRA 1 (1999)
Malayang Samahan ng mga Manggagawa sa M Greenfield vs. Ramos, 326
SCRA 428 [2000]
Palacol vs. Calleja, 26 Feb. 1990
Holy Cross of Davao vs. Joaquin, 263 SCRA 358 [18 Oct 1996]
Bank of the Philippine Islands vs. BPI Employees Union - Davao Chapter -
Federation of Unions in BPI Unibank, G.R. No. 164301, 10 August 2010
Olvido vs. CA, 536 SCRA 81 [2007]
Inguillo vs. First Philippines Scales, Inc., 588 SCRA 471 [2009]
PICOP Resources, Inc. (PRI) vs. Anacleto Taneca et. al, G.R. No. 160828, 09
August 2010
Caltex Refinery, 279 SCRA 218
BPI vs. BPI Employees Union – Metro Manila, G.R. No. 175678, 22 August 2012
Philippine Journalist Inc. vs.Journal Employees Union, G.R. No. 192601, 26 June
2013
Mitsubishi Motors Phils. Salaried Employees Union (MMPSEU) vs. Mitsubishi
Motors Phils Corp., G.R. No. 175773, 17 June 2013
National Union Of Workers In Hotel Restaurant And Allied Industries
(NUWHRAIN) - Philippine Plaza Chapter Vs. Philippines Plaza Inc., G.R. No.
177524, 23 July 2014
3. Signing and ratification
ALU vs. Ferrer-Calleja, 173 SCRA 178
4. Effect:
E. Razon vs. Secretary of Labor, 222 SCRA 1
Metrobank Union vs. NLRC, 226 SCRA 268
Benguet Consolidated vs. BCI Ees Union, 23 SCRA 465
5. Procedure in registration of CBA
6. Scope of the agreement; who may avail of benefits -
Natl. Brewers and Allied Industries Labor Union vs. San Miguel Brewery, G.R.
No. L 19017, December 27, 1963
New Pacific Timber vs. NLRC, 328 SCRA 404 [2000]
7. Duration of the CBA (Art. 253-A)
General Milling Corporation-Independent Labor Union [GMC-ILU] vs. General
Milling Corporation, et al., G.R. Nos. 183122/183889, 15 June 2011.
FVC Labor Union – Phil Transport and General Workers Org. (FVCLUPTGWO)
vs Sama-samang Nagkakaisang Manggagawa sa FVC-Solidarity of Independent
and General Labor Organization (SANAMA-FVC-SIGLO), GR 176249, 27 Nov
2009.
Union of Filipro Employees vs. NLRC, 23 SCRA 465
Manila Electric Company vs. Quisumbing, 302 SCRA 173 (1999)
Manila Electric Company vs. Quisumbing, 326 SCRA 172 [2000]

UNFAIR LABOR PRACTICES

1. Concept: Article 247, Labor Code.
2. Test to determine ULP
Insular Life Assurance Co. Ltd., Employees Association-NATU vs. Insular Life
Assurance Co., Ltd., 37 SCRA 244 [1971]
De Leon vs. NLRC, 358 SCRA 274 [2001]
2. Unfair Labor Practices of employers, Art. 248 LC
2.1 Interference in the right to self-organization
Hacienda Fatima vs. National Federation of Sugarcane Workers-Food
and General Trade, G.R. No. 149440, 28 January 2003
Prince Transport, Inc. vs. Garcia, et al. G.R. No. 167291, 12 January
2011
2014 ULP CASE WHERE THE EMPLOYER HAS ORCHESTRATED
ACTIVITIES TO SUBVERT CERTIFICATION ELECTIONS.
T & H Shopfitters Corporation/ Gin Queen Corporation et. al. vs. T & H
Shopfitters Corporation/Gin Queen Workers Union, et. al., G.R. No.
191714, 26 February 2014, J. Mendoza.
2.2 Refusal to bargain collectively
Divine World vs. Secretary of Labor, 213 SCRA 759 [1992]
2.3 Gross violation of the CBA; need not be limited to economic
provisions if GROSS PER SE.
Employees Union of Bayer Phils. vs. Bayer Philippines, GR No. 162943,
06 Dec 2010.
2.4 Question: Is a lump-sum amount in lieu of wage increases during
CBA negotiations tantamount to bargaining in bad faith?
Tabangao Shell Refinery Employees Association vs. Pilipinas Shell
Petroleum Corporation, G.R. No. 170007, 07 April 2014.
3. Unfair Labor Practices of labor organizations, Art. 249 LC
3.1 Interference in the employee’s right to self-organization, or to
discriminate against him
Salunga vs. Court of Industrial Relations, 21 SCRA 216 (1967)
Manila Mandarin Employees Union vs. NLRC, 154 SCRA 368 (1987)
21 | 2017 LABOR RELATIONS SYLLABUS – Dean Ada D. Abad
4. When not ULP:
General Santos Coca-cola Plant Free Workers Union-TUPAS vs. Coca Cola
Botters et al., GR 178647, 13 February 2009
Suspension of CBA due to financial losses not ULP:
Manila Mining Corp. Employees Association, et al. vs.. Manila Mining corp, et
al., G.R. Nos. 178222-23, 29 September 2010
L. STRIKES, PICKETING AND LOCK-OUTS
Azucena, pp. 292 - 385
Art. 263 - 266, Labor Code
Rule 8, Secs. 1-14, Impl. Rules and Reglns.
Dept. Order No. 9 [1997], Rule XXII, Secs. 1-14
Department Order No. 40, [17 February 2003]
1. Constitutional basis and definition
DO 40, S1, R1 (uu to ww)
Gold City Integrated Port Services vs. NLRC, 245 SCRA 627 [1995]
Lapanday Workers Union vs. NLRC, 248 SCRA 95 [1995]
Great Pacific Life Employees Union vs. Grepalife, 303 SCRA 113 [1999]
Association of Independent Unions in the Phils. Vs. NLRC, 305 SCRA 219
(1999)
1.1 Mass leave is not equivalent to a strike. --
Alex Q. Naranjo, et al. vs. Biomedica Health Care, Inc., et al. G.R.
No. 193789, 19 September 2012
2. Who may declare a strike or lock-out; when it may be declared
B5 R8 S2 IRR; Dept. Order No. 9, Rule XXII, Sec. 1-2
3. Requisites for valid strike or lock-out:
Dept. Order No. 9, Rule XXII, Sec. 1
First City Interlink vs. Roldan-Confesor, 272 SCRA 124 [1997]
Pilipino Telephone Corp vs. Pilipino Telephone Ees Assn. (PILTEA), 525 SCRA
361 [2007]
Toyota Motor Phils. Workers Association.(TMPCWA) vs. NLRC, 537 SCRA 171
[2007]
SIX CATEGORIES OF ILLEGAL STRIKE :Toyota Motor Phils Workers Assn.
(TMPCWA) vs. NLRC, 537 SCRA 171 (2007).
3.1 Lawful purpose
3.1.1 Economic strike/lock-out; Deadlock defined
Capitol Medical Center Alliance vs. Laguesma, supra.,
22 | 2017 LABOR RELATIONS SYLLABUS – Dean Ada D. Abad
267 SCRA 503 [1997]
3.1.2 ULP strike/lock-out
cf. Arts. 248-249, LC
Filing of petition for cancellation of Union’s registration is not
per se an act of ULP –
Rural Bank of Alaminos Employees Union vs. NLRC, 317 SCRA 669
(1999)
Welga ng Bayan not a valid purpose -
Biflex Phils. Labor Union (NAFLU) vs. Filflex Ind’l and Mfg., 511
SCRA 247 [2007]
No lawful purpose when conducted by a union which is not a
legitimate labor organization
Manila Diamond Hotel vs. Manila Diamond Hotel Employees Union,
G.R. No. 158075, 30 June 2006
Abaria vs. NLRC, G.R. No. 154113. 07 December 2011.
Malayang Manggagawa ng Stayfast, Inc. vs. NLRC, G.R. No. 155306,
28 August 2013, Leonardo-De Castro, J
QUESTION: May employees who have gone on mass leaves
without prior authorization be presumed to have conducted an
illegal strike? Park Hotel, et al. vs. Manolo Soriano, et al. G.R. No.
171118. 10 September 2012, J. Peralta. -
3.2 Lawful means
3.2.1 Art. 264 (b) and (e), LC

3.2.2 Guidelines on Removal of Illegal Blockades at Factory Gates,

DOLE Memorandum dated 22 October 1987

3.2.3 Guidelines for the Conduct of INP/AFP Personnel

during Strikes, Lock-outs and Labor Disputes in General,
effective 22 October 1987
3.2.4 Dept. Order No. 9, Rule 22, Secs. 10-13
Phil. Marine Officers Guild vs. Compania Maritima, 22 SCRA 113
United Seamens Union of the Philippines vs. Davao Shipowners
Asso., 20 SCRA 1226
Almira vs. B.F. Goodrich, 58 SCRA 1290
Ilaw at Buklod Manggagawa vs. NLRC, 198 SCRA 586
Note: Violence committed on both sides during the strike
Malayang Samahan ng mga Manggagawa sa M Greenfield vs.
Ramos, 326 SCRA 428 [2000]
3.2.5 Liability of Union officers and members in illegal strikes
Allied Banking Corp. vs. NLRC, 258 SCRA 724 [1996]
C. Alcantara & Sons, Inc. vs. Court of Appeals / Nagkahiusang
Mamumuno sa Alsons-SPFL (NAMAAL-SPFL), et al. vs. C. Alcantara
23 | 2017 LABOR RELATIONS SYLLABUS – Dean Ada D. Abad
& Sons, Inc., et al. / Nagkahiusang Mamumuno sa Alsons-SPFL
(NAMAAL-SPFL), et al. vs. C. Alcantara & Sons, Inc., et al., G.R. No.
155109/G.R. No. 155135/G.R. No. 179220, 29 September 2010.
Club Filipino, Inc., et al. vs. Benjamin Bautista, et al., G.R. No. 168406,
14 January 2015
3.3
Compliance with procedural requirements
3.3.1 Strike vote/Lock-out vote (Dept. Order No. 9, R22, S7-8)
3.3.2 Notice of strike/lock-out (Dept. Order 9, R22, S3-5)
San Miguel Corporation vs. NLRC, 304 SCRA 1 [1999]
Filipino Pipe and Foundry Corp. vs. NLRC, 318 SCRA 68 [1999]

3.3.3 Cooling-off period

a. Economic strike: 30 days
b. ULP strike: 15 days
c. Exceptions - Art. 263 (b); B5 R8 S3, IRR
3.3.4 Seven-day strike ban
National Fedn. of Sugar Workers vs. Ovejera, 114 SCRA 354
First City Interlink vs. Roldan-Confesor, 272 SCRA 124 [1997]

3.3.5 Conciliation proceedings (Dept. Order 9, R22, S6)

GTE Directories vs. Sanchez, 197 SCRA 452
San Miguel Corp vs. NLRC, 403 SCRA 418 [10 June 2003]
3.3.6 Improved offer balloting (Dept. Order 9, R22, S9)
3.4 Good faith strike
People’s Indl. & Comml. (FFW) vs. PICC, 15 March 1982
Phil. Metal Foundries vs. CIR, 90 SCRA 135
CONTRA: Not a good defense in cases of procedural infirmity
Grand Boulevard Hotel vs. Genuine Labor Organizations of Workers in Hotel
Restaurant and Allied Industries, G.R. No. 1534664, 18 July 2003
3.5 Liability of company who fails to immediately reinstate the union
member for participating in an illegal strike; extent of backwages.
C. Alcantara and Sons vs Court of Appeals and Nagkahiusang Mamumuo
Sa Alsons-SPFL, G.R. No. 155109, 14 March 2012. J Peralta.
4. Effect of a no strike/no lock-out clause in CBA
Phil. Metal Foundries vs. CIR, supra., 90 SCRA 135
Master Iron Labor Union vs. NLRC, 17 Feb. 1993
5. Assumption of Jurisdiction by Secretary of Labor or Certification of the
labor dispute to the NLRC for Compulsory Arbitration, Art. 264 (g), LC
24 | 2017 LABOR RELATIONS SYLLABUS – Dean Ada D. Abad
Saulog Transit vs. Lazaro, 128 SCRA 591
Telefunken Semi-conductors Ees Union-FFW vs. CA, 348 SCRA 565 [2000]
5.1 Discretion of the Secretary
FEATI University vs. Bautista, 18 SCRA 1191
Extent of discretion:
 May order the suspension of the termination aspect of a labor
dispute - University of Immaculate Concepcion, Inc. vs. Secretary of
Labor, et al., G.R. No. 151379, 14 Jan. 2009
 May give an award higher than what was agreed upon by the
management and union - Cirtek Employees Labor Union – FFW vs.
Cirtek Electronics, GR 190515, 15 November 2010.
 May not use unaudited financial statements as basis for decision
regarding wage increases – Asia Brewery vs. Tunay na Pagkakaisa ng
Manggagawa sa Asia, G.R. 171594-96, 18 September 2013
5.2 Nature and Effect of Assumption and Certification Orders
Intl. Pharma. vs. Sec. of Labor, 205 SCRA 59
 Payroll reinstatement in lieu of actual reinstatement during strike
proceedings
Manila Diamond Hotel Employees’ Union vs. Court of Appeals, et al.,
G.R. No. 140518, 12/16/2004
5.3 Effect of Defiance of Return-to-Work Orders

a) Hearing not necessary; akin to contempt of court

St. Scholastica’s College vs. Hon. Ruben Torres, 210 SCRA 565
Allied Banking Corp. vs. NLRC, supra. 258 SCRA 724 [1996]
Telefunken Semi-conductors, supra.
b) CONTRA: New twist on defiance of return to work order
Solidbank vs. Gamier et al, GR 159460, 15 Nov 2010; Solidbank vs.
Solidbank Union et al., GR 159461, 15 Nov 2010
6. Picketing and other forms of concerted activities
Dept. Order No. 9, Rule 22, Sec. 12
6.1 Nature of picketing
- includes stationing persons at the site of the labor dispute,
or even at run-away shop
MSF Tire and Rubber vs. Court of Appeals, 311 SCRA 784 [1999]
Sta. Rosa Coca-Cola Plant EEs Union vs. Coca-Cola Bottlers Phils. Inc., 512
SCRA 437 [2007]
6.2 Limitations:
6.2.1. Moving picket
6.2.2 Must not affect neutral parties
25 | 2017 LABOR RELATIONS SYLLABUS – Dean Ada D. Abad
Liwayway Publications vs. Permanent Concrete Workers Union, 23 Oct.
1981
6.2.3 Private homes not allowed
6.2.4 Without violence and intimidation
6.3 Other forms of concerted activities