TOPIC: Double Majority Rule

G.R. No. 181531 July 31, 2009

NATIONAL UNION OF WORKERS IN HOTELS, RESTAURANTS AND ALLIED INDUSTRIES- MANILA
PAVILION
HOTEL CHAPTER, Petitioner,
vs.
SECRETARY OF LABOR AND EMPLOYMENT, BUREAU OF LABOR RELATIONS, HOLIDAY INN
MANILA
PAVILION HOTEL LABOR UNION AND ACESITE PHILIPPINES HOTEL CORPORATION,
Respondents.

DOCTRINE: 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 twofold 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.

FACTS:

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 NO UNION = 1

TOTAL VOTES CAST = 346 SPOILED = 3

NUWHRAIN-MPHC = 151 SEGREGATED = 22

HIMPHLU = 169

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 to decide which among those votes would be opened and tallied. 11 were initially segregated
because they were cast by dismissed employees, the legality of their dismissal was still pending before the
Court of Appeals. 6 other votes were segregated because the employees who cast them were already
occupying supervisory positions at the time of the election. Still 5 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.

Med-Arbiter Calabocal ruled for the opening of 17 out of the 22 segregated votes, especially 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 Gatbonton’s 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.
 Secretary affirmed the decision of the med-arbiter. In fine, the SOLE concluded that the certification
of HIMPHLU as the exclusive bargaining agent was proper.

ISSUES:

(1) whether employees on probationary status at the time of the certification elections should be allowed to
vote

(2) whether HIMPHLU was able to obtain the required majority for it to be certified as the exclusive
bargaining agent. (related to topic)

RULING:

(1) On the first issue, the Court rules in the affirmative.

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. 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.”

For purposes of this section (Rule II, Sec. 2 of Department Order No. 40-03, series of 2003), 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.

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.

(2) 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 Court’s 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. PETITION GRANTED.
TOPIC: Is a Certificate Of Non-Forum Shopping Required in a Petition For Certification Election

SAMAHAN NG MGA MANGGAGAWA SA SAMMA-LAKAS SA INDUSTRIYA NG KAPATIRANG HALIGI

NG ALYANSA (SAMMA-LIKHA), Petitioner, vs. SAMMA CORPORATION, Respondent.

DOCTRINE: Such proceedings are not predicated upon an allegation of misconduct requiring relief, but,
rather, are merely of an inquisitorial nature. The Board's functions are not judicial in nature, but are merely
of an investigative character. The object of the proceedings is not the decision of any alleged commission
of wrongs nor asserted deprivation of rights but is merely the determination of proper bargaining units and
the ascertainment of the will and choice of the employees in respect of the selection of a bargaining
representative. The determination of the proceedings does not entail the entry of remedial orders to redress
rights, but culminates solely in an official designation of bargaining units and an affirmation of the
employees' expressed choice of bargaining agent.

FACTS: Petitioner Samahan ng mga Manggagawa sa Samma– Lakas sa Industriya ng Kapatirang Haligi
ng Alyansa (SAMMA-LIKHA) filed a petition for certification election on July 24, 2001 in the Department of
Labor and Employment (DOLE), Regional Office IV.4 It claimed that: (1) it was a local chapter of the LIKHA
Federation, a legitimate labor organization registered with the DOLE; (2) it sought to represent all the rank-
and-file employees of respondent Samma Corporation; (3) there was no other legitimate labor organization
representing these rank-and-file employees; (4) respondent was not a party to any collective bargaining
agreement and (5) no certification or consent election had been conducted within the employer unit for the
last 12 months prior to the filing of the petition.

Respondent moved for the dismissal of the petition arguing that (1) LIKHA Federation failed to
establish its legal personality; (2) petitioner failed to prove its existence as a local chapter; (3) it failed to
attach the certificate of non-forum shopping and (4) it had a prohibited mixture of supervisory and rank-
and-file employees.

Med-arbiter ordered the dismissal. , Acting Secretary Manuel G. Imson, treating the motion for
reconsideration as an appeal, rendered a decision reversing the order of the med-arbiter. He ruled that the
legal personality of a union cannot be collaterally attacked but may only be questioned in an independent
petition for cancellation of registration. Thus, he directed the holding of a certification election among the
rank-and-file employees of respondent, subject to the usual pre-election conference and inclusion-
exclusion proceedings. CA reversed. Hence, this petition.

ISSUE: Whether a certificate of non-forum shopping is required in a petition for certification election

RULING: No.

The requirement for a certificate of non-forum shopping refers to complaints, counter-claims, cross
claims, petitions or applications where contending parties litigate their respective positions regarding the
claim for relief of the complainant, claimant, petitioner or applicant. A certification proceeding, even though
initiated by a "petition," is not a litigation but an investigation of a non-adversarial and fact-finding
character.18

Such proceedings are not predicated upon an allegation of misconduct requiring relief, but, rather,
are merely of an inquisitorial nature. The Board's functions are not judicial in nature, but are merely of an
investigative character. The object of the proceedings is not the decision of any alleged commission of
wrongs nor asserted deprivation of rights but is merely the determination of proper bargaining units and the
ascertainment of the will and choice of the employees in respect of the selection of a bargaining
representative. The determination of the proceedings does not entail the entry of remedial orders to redress
rights, but culminates solely in an official designation of bargaining units and an affirmation of the
employees' expressed choice of bargaining agent.
 It is in this light that we take a further look at the necessity of attaching a certification against forum
shopping to a disbarment complaint. It would seem that the scenario sought to be avoided, i.e., the filing of
multiple suits and the possibility of conflicting decisions, rarely happens in disbarment complaints
considering that said proceedings are either "taken by the Supreme Court motu proprio, or by the Integrated
Bar of the Philippines (IBP) upon the verified complaint of any person." Thus, if the complainant in a
disbarment case fails to attach a certification against forum shopping, the pendency of another disciplinary
action against the same respondent may still be ascertained with ease.

The same situation holds true for a petition for certification election. Under the omnibus rules
implementing the Labor Code as amended by D.O. No. 9, it is supposed to be filed in the Regional Office
which has jurisdiction over the principal office of the employer or where the bargaining unit is principally
situated. The rules further provide that where two or more petitions involving the same bargaining unit are
filed in one Regional Office, the same shall be automatically consolidated. Hence, the filing of multiple suits
and the possibility of conflicting decisions will rarely happen in this proceeding and, if it does, will be easy
to discover.

Notably, under the Labor Code and the rules pertaining to the form of the petition for certification
election, there is no requirement for a certificate of non-forum shopping either in D.O. No. 9, series of 1997
or in D.O. No. 40-03, series of 2003 which replaced the former. Considering the nature of a petition for
certification election and the rules governing it, we therefore hold that the requirement for a certificate of
non-forum shopping is inapplicable to such a petition.
TOPIC: Contract-bar rule; 60-day freedom period

ORIENTAL TIN CAN AND METAL SHEET MANUFACTURING CO., INC., petitioner, vs. HON.
BIENVENIDO E. LAGUESMA, UNDERSECRETARY OF LABOR AND EMPLOYMENT, ORIENTAL TIN
CAN WORKERS UNION FFW and ORIENTAL TIN CAN LABOR UNION, respondents.

DOCTRINE:

FACTS:

Respondent (in G.R. No. 116751) and petitioner (in sister case G.R. No. 116779), Oriental Tin Can
and Metal Sheet Manufacturing Company, Inc. (the company) is engaged in the manufacture of tin can
containers and metal sheets. On March 3, 1994, it entered into a collective bargaining agreement (CBA)
with petitioner Oriental Tin Can Labor Union (OTCLU) as the existing CBA was due to expire on April 15,
1994. Four days later, 248 of the companys rank-and-file employees authorized the Federation of Free
Workers (FFW) to file a petition for certification election. On March 10, 1994, however, this petition was
repudiated via a written waiver by 115 of the signatories who, along with other employees totaling 897,
ratified the CBA on the same date.

On March 18, 1994, armed with Charter Certificate No. IV-MEE-089, respondent Oriental Tin Can
Workers Union Federation of Free Workers (OTCWU-FFW) filed a petition for certification election
with the National Capital Region office of the Department of Labor and Employment (DOLE), pursuant
to Article 256 of the Labor Code. Purporting to represent the regular rank-and-file employees of the
company, the petition was accompanied by the authentic signatures of 25% of the employees/workers
in the bargaining unit.

The OTCLU filed a manifestation and motion on April 15, 1994, praying for the dismissal of the
petition for certification election on the ground that it was not endorsed by at least 25% of the
employees of the bargaining unit. Some of the employees who initially signed the petition had
allegedly withdrawn in writing such support prior to the filing of the same.

In the meantime, on April 18, 1994, the DOLE issued a certificate of registration of the CBA
pursuant to Article 231 of the Labor Code, as amended by Republic Act No. 6715. It showed that the
CBA between the company and the OTCLU would have the force and effect of law between the
parties that had complied with the requirements and standards for registration thereof.

On June 1, 1994, the officers of the OTCWU-FFW walked out of their jobs, prompting the
company to require them to explain in writing why no disciplinary action should be taken against them
for walking out en masse. The following day, said union filed a notice of strike with the National
Conciliation and Mediation Board (NCMB) grounded on the alleged dismissal of union
members/officers. Two days later, the company directed said officers to report back to work within 48
hours, but none of them did.

In an order dated June 7, 1994, Med-Arbiter Renato D. Parugo dismissed the petition for
certification election for lack of merit. Noting that the petition was filed after the valid retractions were
made, he concluded that by the withdrawal of support to the petition by 115 workers, the remaining
133 of the 1,020 employees were clearly less than the 25% subscription requirement.

In view of the circumstances obtaining in the case at bar, we are constrained to order the dismissal
of the instant petition.

The OTCWU-FFW appealed this ruling to the Labor Secretary. On June 18, 1994, however, during
the pendency of the appeal, said union staged a strike that prevented the free ingress and egress of
non-striking employees, delivery trucks and other vehicles to and from the companys premises. Upon
complaint of the company, the National Labor Relations Commission (NLRC) issued a writ of
preliminary injunction on July 19, 1994, on the ground that the strike caused the company to incur
daily losses amounting to P3.6 million. Meanwhile, on July 15, 1994, Undersecretary Bienvenido E.
Laguesma, acting on the appeal of the OTCWU-FFW, issued a resolution holding that:

An examination of the records of this case shows that the subject CBA was concluded during the
60-day freedom period of the old CBA which expired on 15 April 1994, and registered with the Regional
Office of this Department on 18 April 1994 while the petition for certification election was filed on 18
March 1994. It is therefore, crystal clear that, the present petition was filed during the freedom period
and no registered CBA in the respondent establishment could be invoked (to) pose as a bar to the
holding of a certification election. In other words, when the said CBA was registered there was a
pending representation case. Consequently, said CBA cannot bar the election being prayed for. This is
the rule contained in Section 4, Rule V of the Rules and Regulations Implementing the Labor Code, as
amended, which provides that:

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.

ISSUE: Whether the respondent gravely abused his discretion in:

(a) ordering the conduct of a certification election even though the employees who signed the petition
therefor had withdrawn their support by ratifying the CBA and even though no certification election
could be conducted without the written consent of at least 25% of all the employees in the bargaining
unit, and

(b) ruling, in effect, that the provision of Article 256 of the Labor Code takes precedence over
that of Article 253 of the same Code.

RULING:

The company concedes that, as an employer, it should remain a bystander in the entire process of
selection by the employees of their bargaining representative, since the exercise is indisputably an all
employee affair. Nonetheless, it justifies its right to question the filing of the petition for certification
election by the situation where the small number of employees, the very ones who had earlier
supported the petition for certification election, subsequently changed their mind, and ratified the CBA
and thereafter reaped from its bounty. Thus, in its desire to maintain industrial peace, the company
deemed it necessary to challenge the propriety of holding a certification election.
This argument is misleading. It is a well-established rule that certification elections are exclusively the
concern of employees; hence, the employer lacks the legal personality to challenge the same. In Golden
Farms, Inc. v. Secretary of Labor, the Court declared:

x x x. Law and policy demand that employers take a strict, hands-off stance in certification elections.
The bargaining representative of employees should be chosen free from any extraneous influence of
management. A labor bargaining representative, to be effective, must owe its loyalty to the employees
alone and to no other.

The only instance when an employer may concern itself with employee representation activities is
when it has to file the petition for certification election because there is no existing CBA in the unit and
it was requested to bargain collectively, pursuant to Article 258 of the Labor Code. After filing the
petition, the role of the employer ceases and it becomes a mere bystander. The company’s interference in
the certification election below by actively opposing the same is manifestly uncalled-for
and unduly creates a suspicion that it intends to establish a company union. On this score, it is
clear that the perceived grave abuse of discretion on the part of the Labor Secretary is non-existent
and G.R. No. 116779 should, consequently, be dismissed. This case will now proceed and be decided
on the merits of the issues raised in G.R. No. 116751.