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E. Bargaining Representative (LC 268-272 & IRR Book V, Rule VII) - May…
E. Bargaining Representative (LC 268-272 & IRR Book V, Rule VII) - May be split into either organized or unorganized establishments. This is established either via a certification election or, voluntary recognition.
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II. Unorganized Establishments (269) - No union, No CBA.
Voluntary recognition - Employers may no longer voluntarily recognize unions in unorganized establishments.
Certification Election (269) - Where there is no certified bargaining agent, certification election is AUTOMATICALLY conducted by the med-arbiter UPON FILING of any petition by LLO.
Non-Disclosure - If National Union/Federation files, it shall not be required to disclose the names of the local chapter's officers and members.
APPEAL (Notre Dame v. Laguesma) - Under DO 40, an appeal of a med-arbiter's order to hold a certification election will not stay the holding of a certification election.
SEBA Certification (DO 40-1-15) - Process wherein an LLO is recognized by the employer as a sole exclusive bargaining rep/agent in a bargaining unit. This is done by request to the Regional Director of SEBA certification.
Requisites - a request for SEBA certification must indicate the following:
- BARGAINING - unit sought to be represented
- REQUESTING LLO - name and address
- APPROXIMATE - number of employees in the bargaining unit
- COMPANY - name and address where company operates
- EXISTENCE - a statement on the existence/non-existence of other labor organization/CBA
EFFECT OF CERTIFICATION (40-1-15 S. 4.2) - Upon issuance of the certification,
- RIGHTS - certified union shall enjoy all the rights and privileges of an exclusive bargaining agent of all employees in the covered bargaining unit.
- BAR TO FILING - This shall also bar the filing of a petition for certification election for a (1) - year period from the date of its issuance. Upon expiration of such period, any LLO may file petition for certification election int he same bargaining unit UNLESS CBA duly executed and registered prevents otherwise.
HOW CERTIFIED (40-1-15 S. 6) - Here, the Regional Director will call a conference for the submission of the requirements. If complete, certified as SEBA. BUT if more than one LLO present, refer for certification election.
WHERE FILED - Regional Office which issued its certificate of registration or certificate of creation of chartered local
Who may be Recognized (LC 251) - Only legitimate labor organizations may be certified as a sole and exclusive bargaining agent. Consequently, there must be an E-E relationship and a representation role via a labor organization.
DECISIONS IN CERTIFICATION ELECTION (Hijo Resources Corp. v. Mejares) - When a med-arbiter makes a finding of the existence of an E-E relationship in a petition for certification election, this does not constitute res judicata.
- The Labor Arbiter (LC 224) can still make a further finding on E-E relationship in a later case as they are not bound by the findings of the med-arbiter. This is because illegal dismissal case + finding of no E-E relationship by med-arbiter would mean that no mode of appeal to the Sec. of Labor as Union would have no personality to appeal.
Appeal from Med-Arbiter - may be made ONLY to the Sec. of Labor as regards his decision of E-E relationship in petitions for certification election.
Effect of Improper Membership (Tagaytay Highlands v. Tagaytay Highlands Employees Union) - Inclusion of employees outside the bargaining unit in a labor union that has gone through registration proceedings does not mean cancellation of the certification. LC 239 specifies grounds for cancellation, thus requires showing of FRAUD OR MISREPRESENTATION to be grounds for cancellation. This must be raised in an independent proceeding
Remedy - To file an independent petition for cancellation of the certificate of registration alleging fraud/misrepresentation. They cannot intervene in the petition for certification election proper.
Strict Application (DHL-URFA-FFW v. BNMC) - While generally (5) day period to perfect a protest of certification, procedural technicalities will be waived in the interest of right of workers to freely organize. If there is sign of blatant fraud, misrepresentation, protest will be allowed.
Misrepresentation/Fraud - Has the following elements:
- MATERIAL FACT - has been misrepresented in the campaign;
- OPPORTUNITY - for reply has been lacking; and
- MISREPRESENTATION - has had an impact on the free choice of the employees participating in the election. This is likely if coming from person in authority/trust
SUBSEQUENT WITHDRAWAL - Does not invalidate the certification per se, but constitutes evidence of fraud or misrepresentation.
BYSTANDER RULE (LC 270) - Employer may only file certification election. No participation other than may be required to submit documents pertaining to CBU as well as may be notified of certification proceedings.
PROBATIONARY EMPLOYEES (NUWHRAIN) - Even if stipulated in a CBA, probationary employees are eligible to vote in certification elections. This is pursuant to LC 255. So long as they belong to the bargaining unit, they are eligible.
CLOSED/UNION SHOP AGREEMENTS (PICOP v. Dequilla) - Mere acts of signing authorization for a petition for certification election insufficient to terminate an employee on the basis of disloyalty in relation to union security agreements. In closed shop, termination for failure to remain member in good standing in the union.
Requisites for Termination (Closed Shop) - Burden of proof on the management to show:
- the union security clause is applicable;
- The union is requesting for the enforcement of the union security provision in the CBA; and
- there is sufficient evidence to support the decision of the union to expel the employee from the union.
RATIFICATION OF CBA - Needs to be presented to the whole CBU and then ratified by at-least a majority vote.
BARGAINING UNIT - Only formed at the petition for certification proper. Because that's when you declare what the bargaining unit is.
Certification - must be in document. Either certificate of election or certification in case of request for certification.
RUN-OFF ELECTION - IF certification election has
- (3) - or more choices AND
- NO MAJORITY VOTE - in favor of any-one of them AND
- NO UNRESOLVED - challenge of votes/election protest.
- TOTAL NUMBER - of votes cast for unions is at-least 50% of all votes
Here, election between the TWO UNIONS with the highest number of votes.
Requisites - Note that this requires the conduct of a valid election i.e. majority vote, etc. No-Union is also a valid choice. Also uses the same voter's list in the certification election.
Period of Resolution (270) - All certification cases shall be decided within (20) working days. To be conducted in accordance with the IRR prescribed by the SOLE.
APPEALS (272) -
- WHO MAY APPEAL - Any party to an election (not employer) the order or results of the election as determined by the Med-Arbiter
- WHERE APPEAL - directly to the SOLE.
- GROUNDS FOR APPEAL - that the rules and regulations or parts thereof established by the Secretary of Labor and Employment for the conduct of the election have been violated
- HOW RESOLVED - Within (15) calendar days.
WHAT IS APPEALED (Notre Dame v. Laguesma) - Refers to the order granting the petition for certification election itself, not just any order. An appeal stays the holding of any certification election.
FINALITY OF DECISION - Within (48) hours of notice of receipt of decision and finality of decision remanded to Regional Office for implementation. Here, Labor Election Officer handles proceedings.
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Re-Run Election - In case certification, consent or run-off results in a tie between (2) choices, election officer must immediately notify parties involved AND post notice of re-run within (5) days from the election. Re-run conducted (10) days after posting of notice.