CASE DIGEST: NATIONAL UNION OF WORKERS IN HOTELS, ETC. VS SECRETARY OF DOLE

NATIONAL UNION OF WORKERS IN HOTELS, ETC.  

VS

SECRETARY OF DOLE  

G.R. No. 181531

[July 31, 2009]

ISSUE:

Whether employees on probationary status at the time of the certification elections should be allowed to vote

HELD:

YES. The inclusion of Gatbonton’s vote was proper not because it was not questioned but because probationary employees have the right to vote in a certification election. 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.” The significance of an employee’s 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. 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.

Compare Policy on Certification Election, 256, 257, 258sand Voluntary Recognition – BV, RI (bbb); BV, IR, R VII;

BV; IR, RVIII, Sec. 23

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)

Art. 258. When an employer may file petition. When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no existing certified collective bargaining agreement in the unit, the Bureau shall, after hearing, order a certification election.

All certification cases shall be decided within twenty (20) working days.

The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and regulations prescribed by the Secretary of Labor.

BV, RI(bb) “Organized Establishment” refers to a firm or company where there is a recognized or certified exclusive bargaining agent.

RULE VII

Challenges and Run-Offs

SECTION 1. Challenging of votes. — (a) Any vote may be challenged for a valid cause by any observer before the voter has deposited his vote in the ballot box. (b) If a ballot is challenged on valid grounds, the Representation Officer shall segregate it from the unchallenged ballots and seal it in an envelope. The Representation Officer shall indicate on the envelope the name of the challenger and the ground of the challenge.

SECTION 2. 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 might change the results, the representation officer shall motu proprio conduct a run-off election within five (5) calendar days from the close of the election 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.

The ballots in the run-off election shall provide for two choices receiving the highest and the second highest number of the votes cast.

RULE VIII

Internal Union-Disputes

SECTION 1. Complaint. — A complaint for any violation of the constitution and by-laws and the rights and conditions of membership under Article 242 may filed in the Regional Office where the union is domiciled.

SECTION 2. Who may file. — If the issue involves the entire membership of the union, the complaint shall be signed by at least 30 percent of the membership of the union.

In addition to the above requirement, the petition must show on its face that the administrative remedies provided for in the constitution and by-laws have been exhausted or such remedies are not readily available to the complaining members through no fault of their own. However, if the issue affects a single member only, such member may alone file his complaint.

SECTION 3. Contents of complaint. — The complaint must, among other things, contain the following:

(a) The person or persons charged;

(b) The specific violation/s committed;

(c) The relief/s prayed for; and

(d) Other relevant matters.

Such complaint must be in writing and under oath, and a copy thereof served on the respondent.

SECTION 4. Procedure. — Upon receipt of the complaint, the Regional Director shall immediately assign the case to a Med-Arbiter. The Med-Arbiter shall have twenty (20) working days within which to settle or decide the case. The decision of the Med-Arbiter shall state the facts and the reliefs granted, if any. If the conflicts involve a violation of the rights and conditions of the membership enumerated under Article 242 of the Code, the Med-Arbiter shall order the cancellation of the registration certificate of the erring union or the expulsion of the guilty party from the union, whichever is appropriate.

SECTION 5. Appeal. — The aggrieved party may, within ten

(10) calendar days from receipt of the decision of the Med-Arbiter, appeal the same to the Secretary on any of the following grounds:

(a) Grave abuse of discretion; and

(b) Gross incompetence.

The appeal shall consist of a position paper specifically stating the grounds relied upon by the appellant and supporting arguments under oath.

SECTION 6. Where to file appeal. — The appellant shall file his appeal, which shall be under oath and copy furnished the appellee in the Regional Office where the case originated.

SECTION 7. Period to answer. — The appellee shall file his answer thereto 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.

SECTION 8. Decision of the Secretary final and inappealable. — The Secretary shall have fifteen (15) calendar days within which to decide the appeal from receipt of the records of the case. The decision of the Secretary shall be final and inappealable.

SECTION 9. Execution pending appeal. — The execution of the order of the Med-Arbiter shall be stayed pending appeal.

RULE VIII-A

Visitorial Power

SECTION 1. Exercise of visitorial power. — The Secretary of Labor and Employment or his duly authorized representative shall inquire into the financial activities of any legitimate labor organization and examine their books of accounts and other records to determine compliance with the law and the organization, constitution and by-laws, upon filing of a complaint under oath and duly supported by the written consent of at least twenty (20%) percent of the total membership of the labor organization concerned.

SECTION 2. Period of inquiry or examination. — No inquiry or examination of the financial activities and books of accounts as well as other records of any legitimate labor organization mentioned in the preceding section shall be conducted during the sixty (60) days freedom period nor within thirty (30) days immediately preceding the date of election of union officials.