Distinction, Certification Election vs.
Consent Election
Certification Election to determine the sole and exclusive bargaining
agent of all the employees in an appropriate bargaining unit for the
purpose of collective bargaining;
Consent Election to determine the issue of majority representation of
all workers in the appropriate collective bargaining unit mainly for the
purpose of determining the administrator of the CBA; not for the purpose
of determining the bargaining agent for purposes of collective bargaining.
Voluntary Recognition
Process whereby the employer recognizes a labor organization as the
exclusive bargaining representative of the employees in the appropriate
bargaining unit after a showing that the labor organization is supported
by at least a majority of the employees in the bargaining unit.
Available only in unorganized establishments.
4.
5.
6.
FAQs
1. What is Certification Election?
Certification election is a process of determining through secret ballot
the sole and exclusive bargaining agent (SEBA) of all the employees in
an appropriate bargaining unit for the purpose of collective
bargaining.
2. Where does a union file a petition for certification election (PCE)?
A PCE is filed at the Regional Office which issued the certificate of
petitioning unions certificate of registration/certificate of creation of
chartered local.
3. What are the requirements in filing a PCE?
Among the important requirements are the following:
a. A statement indicating any of the following:
That the bargaining unit is unorganized or that there is no registered
CBA covering the employees in the bargaining unit;
If there exists a duly registered CBA, that the petition is filed within
the sixty-day freedom period of such agreement;
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.
7.
8.
9.
10.
11.
b. In an organized establishment, the signature of at least twenty-five
(25%) percent of all employees in the appropriate bargaining unit
shall be attached to the petition at the time of its filing (Section 4,
Rule VIII, of the Department Order No. 40-03).
What happens after receipt of the PCE?
The petition will be raffled to the Med-Arbiter for preliminary
conference to determine, among others, the bargaining unit to be
represented, the contending unions, and the possibility of consent
election.
What happens upon approval of the conduct of certification election by
the Mediator-Arbiter?
The PCE will be endorsed to an election officer for the conduct of preelection conference wherein the date, time and place of election will
be identified, the list of challenged and eligible voters will be made,
as well as the number and location of polling places.
May a PCE be denied?
Yes, a PCE may be denied if:
a. it was filed before or after the freedom period of a registered CBA;
b. the petitioner union is not listed in the DOLE Registry of legitimate
labor organization; or
c. the legal personality of the petitioner-union has been revoked or
cancelled with finality.
Who will conduct the CE?
The DOLE Regional Office through the election officer conducts the
certification election.
How is the SEBA determined?
The union that garners majority of the valid votes cast in a valid
certification election shall be certified as the SEBA.
May election protest be entertained?
Yes, but protest should have been first recorded in the minutes of the
election proceedings.
What happens if the petitioner union fails to garner the majority of the
valid votes cast?
There will be no SEBA, but another PCE may be filed one year
thereafter.
What are the requisites for certification election in organized
establishments?
Certification election in organized establishments requires that:
12.
13.
14.
15.
a. a petition questioning the majority status of the incumbent
bargaining agent is filed before the DOLE within the 60-day freedom
period;
b. such petition is verified; and
c. the petition is supported by the written consent of at least twentyfive percent (25%) of all employees in the bargaining unit.
What is the requirement for certification election in unorganized
establishments?
Certification election in unorganized establishments shall
automatically be conducted upon the filing of a petition for
certification election by an independent union or a federation in
behalf of the chartered local or the local/chapter itself.
May an employer file a PCE?
Yes, the employer may file a PCE if it is requested to bargain
collectively.
May an employer extend voluntary recognition to a legitimate labor
organization without filing a PCE?
Yes, management may voluntarily recognize a union if there is no
other union in the company and if other requirements are complied
with (Sec. 2, Rule 7 of D.O. 40-03).
What is the role of employer in certification election?
The employer shall not be considered a party to a petition for
certification election, whether it is filed by an employer or a
legitimate labor organization, and shall have no right to oppose it. Its
participation shall be limited only to being notified or informed of
petition for certification election and submitting the certified list of
employees or where necessary, the payrolls (Employer as Bystander
Rule).
Collective Bargaining Agreement
A 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
Deemed as the law between the parties during its lifetime
Provisions are construed liberally
Legal Principles Applicable to CBA
A proposal not embodied in the CBA is not part thereof
Minutes of CBA negotiation have no effect if not incorporated in the CBA
Making a promise during the CBA negotiation is not considered bad faith
Adamant stance resulting in impasse is not bad faith
No terms and conditions may be imposed by the DOLE or any other
agency which the law and the parties did not intend to reflect in the CBA
Signing bonus is not demandable under the law
Allegations of bad faith are erased with the signing of the CBA
Collective Bargaining, Kinds
Single Enterprise
o Between on certified labor union and one employer
Multi-Employer Bargaining
o Between and among several certified labor unions and employers
o Conditions
Only LLOs that are the SEBA may participate and
negotiate
Only employers with counterpart LLOs which are
incumbent bargaining agents may participate
Employers must consent to multi-enterprise bargaining
may participate
Duty to Bargain Collectively
Where there is yet no CBA:
o Compliance to Article 256, LC
o Er and union must MEET, CONVENE and CONFER for collective
bargaining purposes
o Requisites of collective bargaining must be complied with
Er-Ee relationship
Majority status of bargaining union
Demand to negotiate
o Advantage where the negotiations have no precedent CBA: Clean
slate, unencumbered by previous agreements
Where there exists a CBA
o Neither party shall terminate nor modify such agreement during
its lifetime.
o Parties may serve notice to terminate or modify agreement
during freedom period
Parties to keep the status quo during freedom period until new
agreement is reached.
Requisites in Relation to CBA
Posting of CBA
o Posted in two conspicuous places in the work premises, at least
five days prior to ratification
o Mandatory requirement; non-compliance will result in
ineffectiveness of CBA (ATU vs. Trajano, 1988)
o Employer responsible for posting (ALU vs. Ferrer-Calleja, May
1989)
Ratification by Majority of Employees in Bargaining Unit
Registration of CBA
The CBA or other provisions of such agreement entered into
within 6 months from expiration of term shall retroact to the day
immediately following date of expiration
o If entered into beyond 6 months, parties shall agree on effectivity
CBA concluded through arbitral award
o LMG Chemicals Corporation vs. Secretary of DOLE, (GR No.
127422, April 2001)
Breaking the Deadlock
Conciliation and Mediation with NCMB, DOLE
Declaration of Strike or Lockout
Referral to conciliation or voluntary arbitration
Grievance and Voluntary Arbitration
Refusal to Negotiate
Ignoring all notices for negotiation and requests for counter-proposals
Refusing to bargain anew on economic terms of the CBA, using flimsy
excuses such as questioning union
Not serving an answer
All the above are indications of bad faith
Employer who violates the duty to bargain collectively loses its statutory
right to negotiate or renegotiate terms and conditions of the draft CBA;
and may impose the adoption of the proposals of the union as the CBA
Cases
o General Milling Corporation vs. CA,
o Kiok Loy vs. NLRC
o Divine Word University of Tacloban vs. SOLE
Lifetime of a CBA
Representation aspect 5 years, meaning no petition questioning the
majority status of the incumbent agent shall be entertained by DOLE
Economic and non-economic provisions except representation
renegotiated not later than three years after its execution
Retroactivity of CBA
New CBA concluded by negotiation
Grievance
Any question by Er or union regarding
o interpretation or application of the CBA, or
o company personnel policies, or
o Any claim by either party that the other party is violating the CBA
or company personnel policies.
Complaint or dissatisfaction arising from the interpretation or
implementation of CBA and those arising from interpretation or
enforcement of personnel policies.
Grievance Machinery
Refers to mechanism for the adjustment and resolution of grievances
arising from the interpretation or implementation of a CBA and those
arising from the interpretation and enforcement of company personnel
policies.
Grievance Procedure
Internal rules of procedure established by the parties in their CBA with
voluntary arbitration as the terminal step.
Refers to the system of grievance settlement at the plant level as
provided in the CBA.
Consists of successive steps starting at complainant and his immediate
supervisor, up to the level of top union and company officials
All grievances submitted to the grievance machinery that are not settled
in seven calendar days from submission shall be referred to Voluntary
Arbitration prescribed in the CBA
Voluntary Arbitrators shall be named and designated in advance, or
include a procedure for selection of VAs.
In case parties fail to select VA, NCMB shall designate
Voluntary Arbitration
Mode of settling labor-management disputes
Parties select a competent, trained and impartial third person
Decision based on merits of the case
Decision is final and executory
Voluntary Arbitration vs. Court
Voluntary Arbitration
Proceedings may be Informal
Precedents set by other arbitration not
obligatory on VAs
Rules on evidence are not imposed,
hence arbitrator determines what is
admissible
Arbitrators are highly specialized
Courts of Law
Proceedings are Formal
Doctrine of Stare Decisis
Rules on evidence outline points of
admissibility of evidence
Judges considered as generalists
Arbitrable Disputes
Contract-negotiation disputes
o Terms and conditions of contracts
o Collective bargaining issues
o Known as arbitration of interest
Contract interpretation disputes
o Arises out of existing CBAs
o Known as arbitration of grievance or rights
Interplay of Jurisdiction, Labor Arbiters vs. Voluntary Arbitrators
Jurisdiction of LA Article 223
Jurisdiction of VA- Article 267, 268
Interpretation or implementation of CBA are disposed of by LAs by
referring the matter to the grievance machinery, of which the terminal
step is voluntary arbitration
Under Article 268, VAs may, upon voluntary agreement of the parties
hear and decide ALL other labor disputes including ULP and bargaining
deadlocks
Termination disputes may fall within the jurisdiction of VAs, provided that
the parties had agreed in unequivocal language that the termination
dispute would be referred to the grievance machinery and voluntary
arbitration.
Cases
San Jose vs. NLRC & Ocean Terminal Services (GR 121227, Aug. 1998)
San Miguel Corporation vs. NLRC
Sanyo Philippines Workers Union vs. Canizares, GR No. 101619, July 1992
Voluntary Arbitrator
Any person accredited by NCMB as such, or
Any person named or designated in the CBA as such, or
One appointed by the NCMB in case either party refuses to submit to
voluntary arbitration
Note that VAs are not part of DOLE or any government agency. His
authority to render arbitral awards are vested by law.
Enforcement of VAs Decision
Article 268-A: Upon motion of any interested party, the VA may issue a
writ of execution requiring the sheriff of the NLRC or regular courts or
public officials whom the parties may designate in the submission
agreement
Strikes, Lockouts and Picketing
Concerted Activities
People planning and acting together
One undertaken by two or more employees, or by one on behalf of
others.
Strikes
Temporary stoppage of work by the concerted action of the employees as
a result of an industrial or labor dispute.
Consists not only of concerted work stoppages but also sitdowns, mass
leaves, slowdowns, attempts to damage, destroy or sabotage plant
equipment or facilities and similar activities.
Cessation of work by employee in an effort to get more favorable terms
for employment
Concerted refusal by employees to do any work for their employer, or
work at their customary rate of speed until the object of strike is attained
by employers concession
Characteristics of Strikes
Established relationship between strikers and persons against whom the
strike is called
Relationship must be of employer-employe
Existence of dispute between the parties and the utilization by labor of
the weapon of concerted refusal to work as a means of persuading or
coercing compliance to demands
Even though work cessation is by belligerent suspension, Employment
relation still continues
Work stoppage is temporary
Concerted action by employees
Striking group is a LLO, and in the case of bargaining deadlock, the sole
bargaining representative
Lockout
Temporary stoppage of work by reason of refusal of an employer to
furnish work as a result of an industrial or labor dispute
An employers means of protecting his bargaining position
Employer must show that his act is primarily defensive, and not an act of
hostility to collective bargaining or of discriminaiton.
Valid Lockouts
To forestall threatened acts of sabotage (Rizal Cement Workers Union vs.
Madrigal Co.)
In anticipation of a threatened strike where motivated by economic
considerations
In response to unprotected strike or walkout
In response to a whipsaw strike
Picketing
A right given to workers to peacefully march to and from before an
establishment involved in a labor dispute accompanied by the carrying
and display of signs, placards and banners intended to inform the public
about the dispute.
Picketing Allowed by Law
Included in the constitutional guarantee
o to engage in concerted activities for purposes of collective
bargaining for their mutual benefit and protection
o Freedom of speech principle
Can be performed by persons even in the absence of Er-Ee relationship
Limitations
Right to peaceful picketing should be exercised with due respect to the
right of others; coercion, intimidation or acts of violence are strictly
prohibited
Picketers cannot rightfully prevent employees of another company which
is not their employer from entering or leaving their rented premises
(innocent bystander)
Kinds of Strikes
Extent
o General occur over a whole community, province, state or
country. An extended form of sympathetic strike; many workers
stop working to put pressure on government or paralyze
economic & social systems
o Local or Particular applies only in a particular enterprise or
locality
Nature of the Act
o Sitdown Strike Possession, trespass and prevention of access
and operation
o Slowdown reduction of production output
o Partial or quickie strike intermittent, unannounced work
stoppage; used interchangeably with wildcat strike
Employee Interest
Primary Strike declared by employees who have a direct and
immediate interest in the subject of the dispute between them
and the Er
o Secondary Strike Coercive measure adopted by workers against
an employer connected by product or employment with alleged
unfair labor conditions or practices
o Sympathetic Strike striking employees have no demands or
grievances of their own, but strike to directly or indirectly aid
others without direct relation to the advancement of the interest
of the strikers.
Economic Strike one intended to force wage and other concessions
from the employer, which he is not required by law to grant.
Unfair Labor Practice Strike called against the ULP of the employer,
usually for the purpose of making him desist from further committing
such practices. Called for mutual protection, and for the discontinuance
of employer abuses.
Avoidance of Strikes
Parties must first exhaust measures or remedies that will avoid the strike,
akin to the doctrine of Exhaustion of Administrative Remedies.
Only when non-disruptive alternatives have proved unsuccessful may
strikes be deemed justified.
Jumping the gun on the grievance procedure/voluntary arbitration of a
dispute will mean that the strike is PREMATURE, thus illegal
Premature Strikes
Insurefco Paper Pulp Project Workers Union vs. Insular Sugar Refinery
Corporation, 95 Phil. 161
Almeda vs. CIR, 97 Phil. 306
National Labor Union vs. Phimco., 70 Phil 300
Until all the remedies and negotiations looking toward the adjustment
or settlement of labor disputes have been exhausted, the law does not
look with favor upon resort to radical measures, the pernicious
consequences of which transcend the rights of the immediate parties.
(Union of the Philippine Education Employees (NLU) vs. PECO, L-4423,
March 31, 1952)
Avoidance of Strikes
Once an issue has been submitted for conciliation, mediation or
compromise, the employees cannot resort to a strike.
Discussions during conciliation proceedings are confidential and treated
as privileged information
Parties can enter into compromise agreements to avoid a strike, which
compromise shall be immediately final and executory.
Labor Code Provisions Protecting the Right to Strike
Art. 260 Not subject to labor injunction or restraining order
Art. 254 No discrimination against striker in the exercise of the right
Art. 270(a) Preservation of employment relationship
Art. 270(c) Prohibition on Strike-breakers
Strike-Breakers
Persons
who obstruct, impede or interfere
with any peaceful picketing by employees during any labor controversy
affecting wages, conditions of work or in the exercise of their rights
Through force, violence, coercion, threats or intimidation
Strikes, Mandatory Requisites
First requisite: Valid and factual ground
(1) CBA Deadlock; and
(2) Unfair labor practice (ULP).
Second Requisite: Notice (of Strike or Lockout)
(1) CBA Deadlock - 30 days from intended date of strike
(2) Unfair labor practice (ULP) 15 days.
Third requisite: Notice to NCMB-DOLE at least 24 hours priot to the taking
of the strike or lockout vote (secret ballot)
o Decision to conduct vote
o Date, time and place
Fourth Requisite: Strike or Lockout Vote
o Majority approval required
o Must be implemented even in cases of union-busting
Fifth requisite: Strike/Lockout Vote Report
o Submitted at least seven days prior to strike/lockout
o If report submitted during cooling off period, seven day waiting
period begins on the day following the cooling off period
o If for union busting, cooling period may be dispensed with
Sixth Requisite: Cooling Off Period
o Reckoned from filing of notice of strike/lockout
o 30 days for deadlock, 15 for ULP
o If strike is for union-busting, period is dispensed with
Seventh requisite: Waiting period
o Seven days from submission of strike vote report
Nota Bene: Strike Rules
1. Failure to comply with requisites will render the strike or lockout illegal.
2. A strike or lockout based on non-strikeable issues is illegal
3. A strike or lockout is illegal if the issues involved are already subject of
compulsory or voluntary arbitration or conciliation or the steps in
grievance machinery are not exhausted.
4. A strike or lockout is illegal if unlawful means were employed or
prohibited acts or practices were committed (e.g., Use of force, violence,
threats, coercion, etc.; Barricades, blockades and obstructions of ingress
to [entrance] or egress from [exit] the company premises).
5. A strike or lockout is illegal if the notice of strike or notice of lockout is
already converted into a preventive mediation case.
6. A strike or lockout is illegal if staged in violation of the No-Strike, NoLockout clause in the collective bargaining agreement.
7. A strike or lockout is illegal if staged in violation of a temporary
restraining order or an injunction or assumption or certification order.
8. A strike is illegal if staged by a minority union.
9. A strike or lockout is illegal if conducted for unlawful purpose/s (e.g.:
Strike to compel dismissal of employee or to compel the employer to
recognize the union or the so-called Union-Recognition Strike)
10. The local union and not the federation is liable to pay damages in case of
illegal strike.
Preventive Mediation
The NCMB has the authority to convert a notice of strike filed by the
union into a preventive mediation case if it finds that the real issues
raised therein are non-strikeable in character.
NCMB has duty to exert all efforts at mediation and conciliation to enable
parties to settle the dispute amicably and in line with the state policy of
favoring voluntary modes of settling labor disputes.
Once a notice of strike/lockout is converted into a preventive mediation
case, it will be dropped from the docket of notices of strikes/lockouts.
Once dropped therefrom, a strike/lockout can no longer be legally staged
based on the same notice. The conversion has the effect of dismissing the
notice.
Invalid Grounds for Strike
1. Violation of collective bargaining agreements, except those which are
gross in character.
2. Inter-union or intra-union disputes. A strike declared more on the
ground of inter-union and intra-union conflict which is a non-strikeable
issue is patently illegal pursuant to the provision of paragraph [b] of
Article 263 (now 269) of the Labor Code. (Filcon Manufacturing
Corporation vs. Lakas Manggagawa sa Filcon-Lakas Manggagawa Labor
Center [LMF-LMLC], G. R. No. 150166, July 26, 2004).
3. Issues already assumed by the DOLE Secretary or certified by him to the
NLRC for compulsory arbitration. Once the Secretary of Labor and
Employment assumes jurisdiction over a labor dispute affecting national
interest or certifies the same to the NLRC for compulsory arbitration, the
issues involved in said labor dispute can no longer be invoked by the
union in staging a strike or by management in conducting a lockout.
4. Issues already brought before grievance machinery or voluntary
arbitration. In a plethora of case, it was held that a strike is illegal
because of the failure to exhaust all the steps in the grievance
machinery/voluntary arbitration provided for in the CBA. (Union of Filipro
Employees, vs. Nestle Philippines, Inc., G. R. No. 88710-13, Dec. 19, 1990).
Illegal Strikes
1. Those that are expressly prohibited by law
2. Does not comply with statutory requirements
3. Declared for an unlawful purpose
4. Employs unlawful means
5. In violation of an existing injunction
6. In violation of assumption or certification order
7. Violation of no-strike, no-lockout clause
8. Minority union calls strike
9. Strike by a non-registered union
10. Premature strike
Assumption of Jurisdiction
Occurs when labor dispute that caused or may cause strike is in an
industry indispensable to the national interest
DOLE Secretary assumes jurisdiction and
o May decide the case, or
o Certify the same to the NLRC for compulsory arbitration
The power of assumption of jurisdiction over labor disputes in these
industries is in the nature of the POLICE POWER measure
Effects of Assumption
Automatically enjoins intended or impending strike or lockout
All striking or locked out employees shall return to work immediately
o Note that striking employees are not considered to have
abandoned their employment, but only ceased from their labor
Employer shall resume operations and admit all workers under same
conditions pre-strike
No Motion for Reconsideration will stay the assumption order
Wages to be paid during strike
No work, no pay rule applied
Exceptions
o ULP strike
o Unconditional and voluntary offer to return to work is refused by
employer
o Employees are discriminated against despite a RTWO
o Non-participating employees were locked out by employer
o Reinstatement no longer possible
Prohibited Activities
Article 270 - Note prohibitions on:
o Labor Organizations
o Third Persons
o Employers
o Public Officials or Employees
o Picketers
Return to Work Order
Enjoins striking workers to RETURN TO WORK
Defiance of RTWO is considered an illegal act
Strike becomes illegal
Defiant strikers may be sanctioned with disciplinary measures, e.g.
dismissal or loss of employment status or criminal prosecution
Improved Offer Balloting
NCMB shall conduct a referendum by secret ballot on or before 30th day
of the strike;
If majority of union members accept offer
o Striking workers shall return to work immediately
o Employer readmits striking workers upon signing of agreement
Initiated when EMPLOYER makes an offer that is, in his opinion, better
than his previous stance in the labor dispute
Reduced Offer Balloting
NCMB shall conduct a referendum by secret ballot on or before 30th day
of the lockout;
If majority of board members, trustees or directors accept offer
o Locked out workers shall return to work immediately
o Employer readmits workers upon signing of agreement
Initiated when STRIKERS make an offer that is, in their opinion, more
acceptable than their previous stance in the labor dispute