majority of the rank-and-file employees, in the absence of a legal impediment, the holding of a certification election is the most democratic method of determining the employees' choice of their bargaining representative. It is the appropriate means whereby controversies and disputes on representation may be laid to rest, by the unequivocal vote of the employees themselves.
Exercising their suffrage through the medium of the secret ballot, they can select the exclusive bargaining representative that, emboldened by their confidence and strengthened by their support shall fight for their rights at the conference table. That is how union solidarity is achieved and union power is increased in the free society. Hence, rather than being inhibited and delayed, the certification election should be given every encouragement under the law, that the will of the workers may be discovered and, through their freely chosen representatives, pursued and realized.
3.1 Fact-Finding
In labor legislation, certification proceedings is not a litigation in the sense in which the term is ordinarily understood, but an investigation
of non-adversary and fact finding character. As such, it is not bound by technical rules of evidence.
The law does not contemplate the holding of a certification election unless the preliminary inquiry shows a reasonable doubt as to which of the contending unions represents a majority, or unless ten per centum of the laborers demand this election. But these grounds necessarily depend on the weight of the evidence adduced by the rival unions, and this weight, in turn, cannot be determined properly if the right to cross examination is denied.
Certification proceedings directly involve only two issues: (a) proper composition and constituency of the bargaining unit; and (b) veracity of majority membership claims of the competing unions so as to identify the one union that will serve as the bargaining representative of the entire bargaining unit.
But some of the employees may not want to have a union; hence, “No Union” is one of the choices (“candidates”) named in the ballot. If “No Union” wins, the company pr the bargaining unit remains ununionized for at least 12 months, the period known as the 12-month bar. After that period, a petition for a CE may be filed again.
3.1a Certification Election Differentiated from Union Election
A union election is held pursuant to the union's constitution and bylaws, and the right to vote in it is enjoyed only by union members. A union election should be distinguished from a certification election, which is the process of determining, through secret ballot, the sole and exclusive bargaining agent of the employees in the appropriate bargaining unit, for purposes of collective bargaining. Specifically, the purpose of a certification election is to ascertain whether or not a majority of the employees wish to be represented by a labor organization and, in the affirmative case, by which particular labor organization.
In a certification election, all employees belonging to the appropriate bargaining unit can vote. Therefore, a union member who likewise belongs to the appropriate bargaining unit is entitled to vote in said election. However, the reverse is not always true; an employee belonging to the appropriate bargaining unit but who is not a member of the union cannot vote in the union election, unless otherwise authorized by the constitution and bylaws of the union. Verily, union affairs and elections cannot be decided in a non-union activity.
The winners in a union election become officers and representatives of the union only. The winner in a certification election is an entity, a union, which becomes the representative of the whole bargaining unit that includes even the members of the defeated unions.
3.2 Direct Certification No Longer Allowed
Even in a case where a union has filed a petition for certification election, the mere fact that there was no opposition does not warrant a direct certification.
The holding of a certification election at the proper time is not necessarily a mere formality as there was a compelling legal reason not to directly and unilaterally certify a union whose legitimacy is precisely the object of litigation in a pending cancellation case filed by certain "concerned salesmen," who also claim majority status.
The direct certification originally allowed under Article 257 of the Labor Code has apparently been discontinued as a method of selecting the exclusive bargaining agent of the workers. This amendment affirms the superiority of the certification election over the direct certification which is no longer available now under the change in said provision.
3.3 Who Files Petition for CE
Any legitimate labor organization or any employer, when requested to bargain collectively while the majority status of the union is in doubt, may file a petition for certification election (PCE)
In an unorganized establishment one a petition is filed by a legitimate labor organization, the Med-arbiter shall automatically order the conduct of a certification election. The tenor of Article 257 is one of command, so such order is not appealable. To make it appealable will contradict the objective stated in Article 211, to promote free trade unionism. But the application of Article 257 has to be initiated by a genuine petition from a legitimate labor organization. Indeed, the law did not reduce the Med-Arbiter to an automaton which can instantly be set to impulse by the mere filing of a petition for certification election. He is still tasked to satisfy himself that all the conditions of the law are met, and among the legal requirements is that the petitioning union must be a legitimate labor organization in good standing.
In an organized establishment the incumbent bargaining agent, of course, will not file a PCE because it will not contest its own incumbency. The filer will most likely be a union that was defeated in the CE held some five years before. In any such petition the incumbent union is a necessary party, a forced intervenor. But even so, it does not thereby lose its representative status; it remains the sole bargaining representative until it is replaced by another. And until so replaced it has the right to retain the recognition by the employer. The employer, says Article 258, may file a PCE when it has been asked to bargain. If this happens, the holding of the CE becomes mandatory if there is no existing registered collective bargaining agreement. However, instead of itself filing a petition, the employer usually lets the unions interplead to determine who among them will bargain with the employer.
Other unions which are interested in joining a certification election may file a motion for intervention. Such motion is governed by the same rules that apply to a PCE.
Whether petitioner or intervenor, the union has to be an LLO.
If the petition for certification election was filed by the federation which is merely an agent, the petition is deemed to be filed by the chapter, the principal, which must be a legitimate labor organization. The chapter cannot merely rely on the legitimate status of the mother union.
Where the constitution, by-laws and the list of members who supposedly ratified the same were not attested to by the union president, and the constitution and by-laws were not verified under oath, the local union has no personality to file a petition for certification election it not being a legitimate labor organization. The petition should be dismissed.
A union that has no legal personality to file a petition for CE has no personality either to file a petition-in-intervention.
3.4 Where to File the Petition for CE
A petition for certification election (PCE) shall be filed with the Regional Office which issued the petitioning union’s certificate of registration or 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 petitions are first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation.
3.5 When to File the Petition
The proper time to file a petition for CE depends on whether the CBU has a CBA or not. If it has no CBA , the petition may be filed anytime outside the 12-month bar. If it has a CBA, it can be filed only within the last 60 days of the fifth year of the CBA.
3.6 Action on the Petition: Preliminary Conference The preliminary conference shall 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 Section3 of D.O. No. 40-03;
(e) such other matters as may be relevant for the final disposition of the case.
If at the preliminary conference the unions agree to hold a consent election, then the PCE will no longer be heard and the unions will instead prepare for the consent election.
If the unions fail to agree to hold a consent election, the Med-arbiter proceeds to consider the petition. He may deny and dismiss, or he may grant, the petition. Denial or grant of the petition is always appealable to the Secretary. Never appealable, however, is the approval of a PCE in an unorganized (ununionized) bargaining unit, the reason being that the law wants the ununionized unionized.
3.7 Action on the Petition: Hearings and 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 may deem necessary. But the conduct of the hearings cannot exceed fifteen (15) days from the date of the scheduled preliminary conference/ hearing. After that time the petition shall be considered submitted for decision. The Med-arbiter shall have control of the proceedings. Postponements or continuances are discouraged. 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, upon the agreement of 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.
Within ten (10) days from the date of the last hearing, the Med-arbiter shall issue a formal order denying or granting the petition. In
organized establishments, however, no order or decision shall be issued by the Med-arbiter during the freedom period.
The reason for the last-mentioned rule is that during the entire 60-day freedom period, up to its last day, the door should remain open for any union to file a PCE or a motion for intervention.
3.8 Action on the Petition: Denial; Grounds
The Med-arbiter, after due hearing may dismiss the petition on any of the following grounds:
(1) Not an LLO (2) Twelve-month Bar
(3) Negotiation Bar or Deadlock Bar (4) No 25% Support
(5) Contract Bar; PCE Filed Outside the Freedom Period
The first three grounds are applicable to establishments with or without a CBA; the last two are pertinent only to an establishment with a CBA about to expire on its fifth year.
3.8a Ground 1: Petitioner not an LLO
Excepting Article 258, only a legitimate labor organization (LLO) can file a petition for certification election. Thus, if the petitioning union is not listed in the DOLE’s list of LLOs or it has no CBA registered in the DOLE, these facts raise doubt as to its being an LLO, and the med-arbiter may dismiss the PCE.
But even if the union is listed as LLO or is a party to a CBA, its legitimacy may still be questioned in a separate and independent petition for cancellation to be heard and decided by the BLR Director or the Regional Director himself.
Does the filing of a petition to cancel the petitioner’s registration cause the suspension or dismissal of the PCE? No, the mere filing foes not. To serve as a ground for dismissal of a PCE, the legal personality of the petitioner should have been revoked or cancelled “with finality.”
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. The justification for this rule is that the employees’ opportunity to choose a bargaining agent can easily be blocked or forestalled by an employer through the simple expedience of questioning the legitimacy of the petitioner union.
Suspension of Proceedings: “Company Union” Charge
A complaint for unfair labor practice may be considered a prejudicial question in a proceeding for certification election when it is charged therein that one or more labor unions participating in the election are being aided, or are controlled, by the company or employer. The reason is that the certification election may lead to the selection of an employer-dominated or company union as the employees’ bargaining representative, and when the court finds that said union is employer-dominated in the unfair labor practice case, the
union selected would be decertified and the whole election proceedings would be rendered useless and nugatory.
NONETHELESS, a certification election cannot be stayed during the pendency of unfair labor practice charge against a union filed by the employer.
Similarly, certification election may be ordered despite pendency of a petition to cancel the union’s registration certificate founded on alleged illegal strike by the union.
3.8b Ground 2: The 12-month Bar (certification year bar)
No petition for a CE may be filed within one year from the date of a valid certification, consent, or run-off election or from the date of entry of a voluntary recognition of the union by the employer. Thus, if an election had been held but not one of the unions won a PCE may be filed again but only after 12 months. The law does not want more than one election in a 12-month period. The same bar applies if “No Union” won in the previous election.
On the other hand, if a union has won, such union and the employer must within 12 months start negotiating a collective agreement. If they fail to do so, they are defeating the employees’ wish to have a CBA; hence, the union or unions that lost can petition again for a certification election after 12 months from the last election so as to replace the unproductive bargaining agent which, perhaps, is cavorting with the employer.
Ordinarily, a bargaining agent who failed to secure a CBA within 12 months could be suspected as a tool of management and should deserve to be replaced. But if circumstances show that the cause of not having concluded a CBA was not the union’s fault, such union should not be blamed, and a CE should not be authorized even though no CBA has been concluded despite passage of twelve months. The situation takes the nature of a “deadlock bar.” The 12-month prohibition presupposes that there was an actual conduct of election i.e. ballots were cast and there was a counting of votes. In this case, there was no certification election conducted precisely because the first petition was dismissed, on the ground of a defective petition which did not include all the employees who should be properly included in the collective bargaining unit, the certification year bar does not apply.
Neither does this bar apply if in fact there was a failure of election because less than majority of the CBU members voted. In that case, another PCE may be filed within six (6) months.
An election held less than a year after an invalid election is not barred. Also not barred would be a second election held among a group of employees who had not participated in the first election and had not been given the opportunity to be represented as part of the unit in the first election.
A radical change in the size of a bargaining unit within a short period of time, raising a question as to the majority status of the certified representative, may also prompt the NLRB to entertain a petition for an election during the certification year.
The one-year rule does not apply to a unit clarification petition filed during the certification year.
In a CE, the “No Union” choice won. Within 12 months from that election the employer voluntarily recognized a new union and then
concluded with it a CBA. Is the 12-month bar violated? Are the recognition and the CBA valid?
Excepted from the contract-bar rule are certain types of contracts which do not foster industrial stability, such as contracts where the identity of the representative is in doubt. Any stability derived from such contracts must be subordinated to the employees' freedom of choice because it does not establish the kind of industrial peace contemplated by the law.
In other words, the court strongly doubted that the union voluntarily recognized by the employer was really the employees’ choice. Most probably, it was a company union.
3.8c Ground 3: Negotiation or Deadlock Bar
Neither will a PCE prosper if the negotiation is caught in a deadlock. The deadlock does not erase that fact that there is negotiation which is a barrier to holding a certification election. The parties should be allowed to try to resolve their deadlock; replacing the negotiating union will not help.
The “Deadlock Bar” Rule simply provides that a petition for certification election can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. The principal purpose is to ensure stability in the relationship of the workers and the management.
A "deadlock" is the counteraction of things producing entire stoppage; there is a deadlock when there is a complete blocking or stoppage resulting from the action of equal and opposed forces. The word is synonymous with the word impasse, which "presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties."
If the law proscribes the conduct of a certification election when there is a bargaining deadlock submitted to conciliation or arbitration, with more reason should it not be conducted if, despite attempts to bring an employer to the negotiation table by the "no reasonable effort in good faith" on the employer certified bargaining agent, there was to bargain collectively. It is only just and equitable that the circumstances in this case should be considered as similar in nature to a "bargaining deadlock" when no certification election could be held.
“Deadlock Bar” Rule, When Not Applicable; Artificial Deadlock The deadlock that bars a CE must be genuine and not a drama. One indicator that it is genuine is the submission of the deadlock to a third- party conciliator or arbitrator. Another is that the deadlock is the