Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y.
2017-2018
LABOR RECITS (FINALS)
NOTE:
These are the oral recitations in Labor Relations (AY 2017-2018)
up to the Finals compiled from all the sections. Also, some
answers have been given. Please note that these are not the
100% guaranteed correct answers. Please minimize or regulate
the sharing of this document because WE do NOT want Atty.
Marquez to see this. Also, as much as possible, do not have this
printed. Thank you!
(CGDP)
RIGHT TO SELF-ORGANIZATION
1. Does the state promote unionism as a matter of
policy? Yes
2. Why do you think it is the policy of the state to
promote unionism? It is to enable the workers to
negotiate with the management employer effectively
and better when done individually
3. What is your concept of unionism? It is an organized
attempt by workers to improve their status by united
action
4. When you speak of unionism, does it refer to
workers or employers? Workers
5. Can’t the EE on their own negotiate with the ER to
improve their work conditions? They can but
collective bargaining is more effective
6. Does the constitution provide the freedom to form
associations? Yes.
ART III SEC 8: The right of the people, including those
employed in the public and private sectors, to form
unions, associations, or societies for purposes not
contrary to law shall not be abridged.
ART XIII SEC 3: It shall guarantee the rights of all
workers to self-organization, collective bargaining
and negotiations, and peaceful concerted activities,
including the right to strike in accordance with law. They
shall be entitled to security of tenure, humane conditions
of work, and a living wage. They shall also participate in
policy and decision-making processes affecting their
rights and benefits as may be provided by law.
7. What are the rights granted under the constitution?
(1) Right to self organization
- To join, assist and form labor organizations
(2) Right to collective bargaining and Negotiations
- EE and ER negotiate the terms of employment
collectively;
(3) Right to engage in lawful and peaceful concerted
activities
- Strikes and lockouts
8. Is strike a concerted activity? Yes
9. What is picketing? Marching to & fro the employers
premises usually with placards. It is regarded as a
concerted activity
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10. What is the third type of peaceful activity on the
employee’s side? BOYCOTT- refusal to patronize an
employer’s goods or services
If you are not a worker, it is called the RIGHT to
ASSOCIATION (Freedom of association)
11. Is this conferred by the constitution? Yes
12. What is this right to association? Broader right of
every individual. If we speak of workers, it is called the
RIGHT to ORGANIZATION. Right to association is
available to non-workers
13. What is your concept of freedom of association?
Right to associate (freedom of association) and also the
right not to associate (negative freedom of association).
You are free to act without any restraint
14. Are you a member of the LEX circle?
Do you have the freedom to disassociate from the
LEX circle?
Do you possess freedom and power in your
membership?
What is your legal basis for your membership? Is
there a contract or a law?
Did you as a student sign an agreement that you
should join the Lex Circle upon enrolment?
So if the membership in the Lex Circle does not have
liberty and power, what kind of freedom is that?
15. What are the principal attributes of the freedom of
association?
(1) Liberty or freedom—may act as he pleases in the
absence of legal restraint
(2) Power to join or not to join—choose to join or not to
join and which organization to join and he may
disassociate from the organization
When you join an association, you should have this
liberty and power because these two are inherent
attributes to this freedom of association.
Note: Freedom to disassociate is not available to the
worker in a closed-shop agreement which finds its
basis in the CBA and regulated by Art 248, LC where
EE, under pain of dismissal has no choice but to join
the existing labor organization
16. The general rule is that the freedom of association
carries with it the negative freedom of association.
What is this? Freedom not to join any organization
17. The right not to associate is not absolute, however.
Why? One exception is the Closed Shop Agreement,
where it stipulates that under pain of dismissal, the EE
has no choice but to join the existing labor organization.
This is found in the Labor Code
Art 259, (e). “…Nothing in this Code or in any other law
shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for
employment, except those employees who are already
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Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
members of another union at the time of the signing of
the collective bargaining agreement”
 25. Does the LC provide who are the managerial
Basically, they will only be hired if they will be members
of that recognized bargaining union which is the union
that is chosen by the employees in that bargaining unit.
The company cannot employ him because in the first
place, the company agreed with the union for that
condition. The contract is the law between them.
The closed shop agreement is considered the most
prized achievement of unionism because it wields unity
and solidarity.
18. Who are the parties to the CBA? ER and Recognized
Bargaining Union (in representation of the workers of
that bargaining unit)
19. Can the ER be forced to agree to such closed-shop
provision? No, the ER cannot be forced to agree
because a contract is supposed to be consensual. It
must be a product of agreement of both parties to be
valid.
20. Is there an exception to that exception where the
closed shop agreement cannot be enforced? It is
also found in Art 259 (e) “except those employees who
are already members of another union at the time of the
signing of the collective bargaining agreement”
 implements the managerial policies laid down and
These members who have exercised their freedom of
association previously cannot be forced to give up their
membership just because of this closed shop
agreement.
21. What is another exception to this exception where
the closed shop agreement cannot be enforced?
When it violates the employee’s freedom of religion. If
the exercise of religious freedom of the EE prohibits
such employee from affiliating with any labor
organization. The freedom of religion prevails over this
closed-shop provision which is basically contractual in
nature.
22. What is your opinion why we should respect
religious beliefs? We respect and honor religious
freedom because it is important not only for the
wellbeing of society but an individual’s wellbeing
23. Give another exception to this closed shop
agreement. When the CBA expressly excludes, so
where by the express terms of the CBA, the parties have
agreed that certain kinds of employees or certain named
employees are excluded in this provision
An example of a kind of EE who is not allowed to join
any union even when he is not managerial in position is
the confidential employee (where by the nature of his
job, the EE is made to assist or perform tasks involving
confidential records in relation to labor relations)
24. What is the 3-tiered classification of employees?
(1) Rank and file
(2) Supervisory
(3) Managerial
Remember, in Labor Standards, we only had
Managerial EE and Rank and file EE.
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employees? Yes, under Art. 219 (m)— “Managerial
employee is one who is vested with the powers or
prerogatives to lay down and execute management
policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees”
26. Who are supervisory employees? Art. 219 (m)—
“Supervisory employees are those who, in the interest
of the employer, effectively recommend such
managerial actions if the exercise of such authority is not
merely routinary or clerical in nature but requires the use
of independent judgment.
27. Who are rank and file employees? Article 219 (m)—
“All employees not falling within any of the above
definitions are considered rank-and-file employees for
purposes of this Book”
The job of the rank and file EE is mostly clerical or
routinary.
28. What is the principal difference between managerial
and supervisory employees? Managerial EE have the
power to to lay down and execute management policies.
They also have the power to decide and do managerial
acts. However, the supervisory EE is one who
executed. Unlike, the managerial EE, they have the
power to recommend managerial acts and acts which
require discretion or independent judgment and not
merely routinary or clerical in nature
29. What is the hierarchy of the management?
(1) Top management
(2) Middle management
(3) Front-line (first-line) management (e.g. supervisors)
30. How do you classify my employment? Rank and file
31. Can I organize a labor union with my fellow
teachers? Yes
32. Is a workers’ association a union? No, they are
different. (DO 40-03)
Union—any labor organization in the private sector
organized for collective bargaining and for other
legitimate purposes
Workers’ Association—association of workers
organized for the mutual aid and protection of its
members or for any legitimate purpose OTHER THAN
collective bargaining.
For example: Faculty association in USC is composed
of managers (Deans), supervisor and rank & file
(teachers); but this is not allowed in a Union. The mixing
of supervisors and rank and file employees are not
allowed in a labor union. Managers are not allowed to
form or join labor unions.
33. What is the purpose of the formation of a labor
union? For collective bargain and negotiation.
However, in the workers’ association, it is for mutual aid
and protection or for any other purpose OTHER THAN
collective bargaining.
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34. Who are eligible to form/organize unions? Rank and
file employees
Supervisory employees are not prohibited from forming
or joining labor unions as long as they do not mix or join
with the labor union of rank and file employees. There
should be separate labor unions for rank and file
employees and supervisory employees.
35. Who are not eligible to form labor unions aside from
managerial employees? Confidential employees who
may be rank and file or supervisory EE.
36. Who are confidential employees? They assist and act
in a confidential capacity to or have access to
confidential matters or persons who exercise
managerial functions in the field of labor relations.
37. Does the LC expressly prohibit their right to self-
organization? No, the LC does not expressly prohibit
the right to self-organization of confidential employees.
They are prohibited by the Doctrine of Necessary
Implication. Being so involved in the managerial acts in
the field of labor relations, the absolute prohibition of
managers equally applies to them.
38. Are there supervisory EE who are also prohibited
from exercising this right? Yes, when they are
considered as confidential employees.
39. Why are supervisory employees not allowed to join
the rank and file employees in the same labor
union? Conflict of interest
40. In what areas are there conflict?
(1) Area of Discipline – there will be no one to discipline
the rank and file employees
(2) Area of collective bargaining – loyalty will be
divided. Supervisory employees usually act in the
interest of the employer.
41. For managerial EE, do they have the right to self-
organization? No, they are absolutely prohibited from
joining a union for collective bargaining.
42. What about alien employees? What are the
requirements in order for them to join labor union?
(1) Aliens can be EEs in the Philippines if they have a
valid ALIEN EMPLOYMENT PERMIT issued by
DOLE (AEP)
(2) National of a country which grants the same or
similar rights to Filipino workers
(3) which has ratified either ILO convention no. 87 or
ILO convention no. 98 as certified by DFA
43. What is the name of those ILO?
(1) ILO 87—Freedom of association and protection of
the right to organize
(2) ILO 98—Right to organize and collective bargaining
44. Are aliens allowed to organize unions? NO. The
Labor Code does not allow aliens to organize or form a
union, they can ONLY JOIN OR ASSIST a labor union.
NOT FORM.
ARTICLE 284. [269] Prohibition against Aliens;
Exceptions. 220 — All aliens, natural or juridical, as
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well as foreign organizations are strictly prohibited
from engaging directly or indirectly in all forms of
trade union activities without prejudice to normal
contacts between Philippine labor unions and
recognized international labor centers: Provided,
however, That aliens working in the country with
valid permits issued by the Department of Labor and
Employment, may exercise the right to self-
organization and join or assist labor organizations
of their own choosing for purposes of collective
bargaining: Provided, further, That said aliens are
nationals of a country which grants the same or
similar rights to Filipino workers.
However, if you meet the three requirement above, you
can participate directly or indirectly in trade union
activities.
45. Why does the law not allow the aliens to form labor
organizations or directly or indirectly participate in
trade union activities? They may eventually dominate
the authorities and rule the Philippines
46. In forming and organizing a labor union, the law
allows the creation of independent union or forming
and organizing a local chapter through process of
chartering, let’s go to independent union first.
What are the requirements to form and organize an
independent union?
IRR Rule III
REGISTRATION OF LABOR ORGANIZATIONS
Section 2. Requirements for application. - A. The application
for registration of an independent labor union shall be
accompanied by the following documents:
(1) the name of the applicant labor union, its principal
address, the name of its officers and their respective
addresses, approximate number of employees in
the bargaining unit where it seeks to operate, with a
statement that it is not reported as a chartered local
of any federation or national union;
(2) the minutes of the organizational meeting(s) and the
list of employees who participated in the said
meeting(s);
(3) the name of all its members comprising at least 20%
of the employees in the bargaining unit;
(4) the annual financial reports if the applicant has been
in existence for one or more years, unless it has not
collected any amount from the members, in which
case a statement to this effect shall be included in the
application;
(5) the applicant's constitution and by-laws, minutes of
its adoption or ratification, and the list of the
members who participated in it. The list of ratifying
members shall be dispensed with where the
constitution and by-laws was ratified or adopted during
the organizational meeting. In such a case, the factual
circumstances of the ratification shall be recorded in the
minutes of the organizational meeting(s).
47. You will notice that one of the requirement is that
you must have at least 20% of the employees in the
bargaining unit to form an independent labor union,
what does that mean? If you have 100 rank and file
employees in the bargaining union, you must have at
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Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
least 20 employees as members to form and organize a
union.
48. Why do you think does the law provide for 20%
only? The policy of the state is to promote unionism.
The intent is to encourage employees to easily organize
and form an independent union. This 20% is the
minimum requirement. The 80% may not join the union
or may join other unions. But again, you do not need the
permission of this 80% to register as an independent
union.
This is a clear evidence that there can be 2 or more labor
unions in one bargaining unit.
49. What do you mean by constitution and by laws?
Constitution is a document that expresses the
philosophy and policies of the organization (e.g. name
of organization, declaration of principles, vision-
mission)`
By-laws give the specifics such as internal
management, schedule of meetings, etc.; terms and
conditions, duties and responsibilities of members and
officers (by-laws is more comprehensive)
50. Does it need to be ratified? How? Yes. There must be
proof majority of the total union membership ratified. So
if you have 20 members, 11 must ratify it. That should
be done in a general meeting called for that purpose.
51. Why should they ratify it? For it to be valid, binding
and enforceable among the members
52. What agency has the power to register an
independent union? Bureau of Labor Relations (part of
DOLE)
53. For purposes of collective bargaining and
negotiation, can there be more than 1 unit? No, there
should only be a SEBA (Sole and Exclusive Bargaining
Agent) elected through certification election (so
mayroong majority union and minority union)
54. To be certified as the SEBA, what is the voting
requirement? You must meet the double-majority rule
(valid certification election where majority of the
electorate are present and obtain the majority of the
valid votes cast)
The union that lost in the election will remain an
independent union. Only that, it does not become a
SEBA without prejudice to it being voted as a SEBA in
the future. The chance will come when the freedom-
th
period comes in. At the onset of the 5 year, any
legitimate labor union existing in the bargaining unit can
challenge the incumbent SEBA.
55. What happens if the bargaining unit does not obtain
the required double majority rule where majority of
the EE do not even cast their vote? Such becomes a
failure of election or an invalid election. The minimum
requirement is at the very least, there must be a valid
election.
56. What is meant by financial report? Accounting of the
money collected. This is to ensure the responsibility and
accountability of labor union
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57. Why must the union submit a financial report if it is
already existing for one year? Why are unions
existing for less than a year not covered with this
requirement? Because if a union is newly organized
(less than a year pa ni-exist), there might be no
collection of dues yet.
58. Can the union deduct the union dues from salary?
Yes
ARTICLE 113. Wage Deduction. — No employer, in his
own behalf or in behalf of any person, shall make any
deduction from the wages of his employees, except:
(b) For union dues, in cases where the right of the
worker or his union to check-off has been
recognized by the employer or authorized in writing
by the individual worker concerned
Here, the union will just wait for the employer to remit
the union dues that was automatically
deducted/collected from the salary of the employee that
is member of the union.
59. Where will you appeal from BLR incase intra-union
dispute? To SOLE then certiorari to CA then SC
60. By submitting the names of their members, does
that mean the ER will know? Yes, the ER will know
which may open to a curtailment of their right. The ER
who may know of an officer or a member of the union
may promote him as a manager absolutely disqualifying
him to be one or grant an across-the-board wage
increase making the workers think of the
unnecessariness of a union
JMM DISCUSSION AFTER LONDON BREAK
We are already through discussing the requirements for
registrations of an independent labor union. As you can see, the
requirements are listed and enumerated. It is quite extensive,
especially with the 20% mandatory membership requirement.
However, it is different from that of registration of a local or
chapter.
If you look at the requirements for registration of a local or chapter
does not mention of the 20% membership requirement. The
message there is that it is easier to organize as a local or chapter
through the process of chartering. The intent of the law is to
encourage the creation of a local or a chapter because if you are
created by a federation or a national union, at least the local or
chapter is assured of strength. The federation or national union is
comprised of many independent unions. So mas malaki siya.
(showed us slides; nastop pud akong recording ani guys)
The charter certificate, that’s how it looks. Just like a diploma. The
local or chapter can create their own name. The federation or
national union can create a local or chapter through the process
of chartering. All they have to do is issue this charter certificate.
By this time, the local or chapter will have acquired legal
personality only for the purpose of filing a petition for certification
election. Not yet on the exercise of the other rights of a legitimate
labor organization. In order that the local or chapter will be able
to exercise rights of a legitimate labor organization, it will have to
comply with the submission of requirements under DO 40-03, as
amended (I think the latest amendment was in 2015). Just look
at the requirements in the DO. Kapag ang BLR which is the
agency which has the power to approve or deny applications for
registration finds out that all the requirements have been
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Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
submitted, the DOLE will issue a Certificate of Creation of local
or chapter. To distinguish it from a Certificate of Registration. Pag
independent union, ang i-issue ng DOLE ay Certificate of
Registration pero kung na create ka as a local or chapter, ang i-
issue ng DOLE is a Certificate of Creation of local or chapter. Of
course, that was in the past. Now, it is the BLR that will issue
these certificates through the DOLE regional office.
The next topic is of course, logically, is the Certification Election.
Meron ka ng Certificate of Registration eh as an independent
union or a Certificate of Creation as a local or chapter. So next
topic natin is the petition for certification election. One of the rights
of a legitimate labor organization is to be certified as the SEBA
for the purpose of collective bargaining. Now, the union cannot
exercise the right to collective bargaining and negotiation unless
it has been certified as the SEBA.
Under DO 40-03 as amended in 2015, the labor organization can
file a Request for SEBA Certification. That provision took over
voluntary recognition. That was in the old DO 40-03. So yan and
Request for SEBA. That Request for SEBA is so easy to
understand. I leave that to you because that’s only for academic
purposes. Yang requirements are so self-explanatory. What is
important is this certification election process.
What is the nature for this petition for CE? The SC said in that old
San Miguel case, it is not a litigation. It is a mere investigation of
a non-adversary fact-finding character the purpose of which is to
determine from among the qualified rank and file employees,
whether they want you to be the SEBA to represent them for the
purpose of collective bargaining. The proceedings are quasi-
judicial in nature. Being so, the decisions rendered therein by the
Med-Arbiter (Mediator-Arbiter) may be the subject of appeal. In
that sense, the Med-Arbiter exercises a quasi-judicial power.
While it is true that it is not a litigation yung CE, any decision
rendered by the Med-Arbiter may be subject of an appeal to the
SOLE. Decisions rendered therein may as to the coverage of
employees who would constitute the bargaining unit will be
governed by res judicata.
The first thing you have to take note is who may file. It says there
that the one who may file is any legitimate labor organization, the
employer when requested to bargain collectively, the federation
or national union that has issued a charter certificate. (What
happens kasi is that in practice, the federation or national union
is usually the one who will file a petition for CE in place of the
local or chapter created. However, the local or chapter may do so
once it has been issued such charter certificate. It just chooses
not to do so in order not to divulge the identity of its officers
because there might be instances when these officers or union
members be subjected to undue pressure. That is why it will be
the federation or national union which will file such petition.) Any
of these 3 may file a petition for CE.
They can file the petition with the Med-Arbiter. Where to file, look
at the venue, the regional office of the DOLE, of course the
Bureau of Labor Relations of the DOLE has jurisdiction. When to
file? If the establishment is not organized, it can be filed at any
time. (When is an establishment organized or not? It is
unorganized when there is no certified or recognized bargaining
agent or a CBA. It is organized when there is a certified or
recognized bargaining agent or a CBA.) While it is true that the
EEs in an establishment may organize and form a union or a labor
organization in the establishment where it is operating, it cannot
exercise the rights to collective bargaining and negotiation unless
it is certified or recognized as a SEBA. One way of doing that
under DO 40-03 as amended is filing for a Request for SEBA.
Another way, the more democratic is through petition for CE. If
the establishment is organized, as to when you can file, you have
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to take note of the different barriers. You cannot just file it at
anytime. Why? Because there is already an existing certified or
recognized BA.
The Med-Arbiter which has jurisdiction, will have to determine
based on the petition if the petition discloses that it is filed in an
establishment that is not organized, it will grant the petition (for
as long as all the other requirements are met). There is no need
for a support requirement (in membership) for a labor
organization in an establishment that is not organized. All that is
needed is that it is filed by a legitimate labor organization
(independent union, local or chapter). Pag organized yung
establishment, then the Med-Arbiter will have to take a look
whether it is filed on time (filed during the 60-day period
immediately prior to the expiration of the existing CBA), whether
there is a legal impediment. Take note of these legal impediments
that will result to the denial by the Med-Arbiter of the petition for
CE.
Contents. I just want you to look at the contents required in the
petition. Everything is there class. You just have to take a look.
The regional office of the DOLE will have to raffle the petition if
there are 2 or more Med-Arbiters (if there is only one, then no
need to raffle obviously).
The preliminary conference. The Med-Arbiter will issue a notice
of the conduct of a preliminary conference. What is done during
the preliminary conference? Look at your 40-03. There are many
items. One of the items there is the determination of the
bargaining unit that is sought to be represented by the petitioning
union. What if upon inquiry of the Med-Arbiter, the petitioning
union says it wants to represent the managerial bargaining unit.
Ay of course, sabihin niya tarant—there is no such thing as
managerial bargaining unit! That is the importance of knowing the
appropriate bargaining unit because it assumes that the workers
are qualified.
While it is true that the ER is also allowed to file a petition for CE.
The law requires that it can only file a petition when requested to
bargain collectively. Who requests? It is the workers who make
the request (write a letter to the management). That is more
theoretical. Because, in my experience there is not one employer
who will file a petition for CE. They will not want unions because
if there are unions then they will have a cut in their pocket. But if
the workers are really adamant in their want to organize then I
think we owe it to them to respect their rights.
The preliminary conference is a very informal proceeding before
the Med-Arbiter. I want you to look at the grounds for denial. Once
the Med-Arbiter has issued a notice for preliminary conference,
the petition itself must be posted in at least 2 conspicuous places
in the establishment so that the workers (members or not) will be
informed that there is this Union trying to represent itself in a
petition for CE and trying to earn the confidence of at least the
majority of the workers to be certified as the SEBA. If you don’t
like that union, then reject that union. But if you like that union to
represent you, then give them the vote of confidence. You have
the choice.
Posting of the preliminary conference. So everyone, the
intervenors and even the ER if he so minded can attend that
preliminary conference. But, the ER will stay as a mere
bystander. The law expressly considers the ER as a bystander.
By the way, if it is the ER who will file the petition for CE, once it
files the petition, its participation ends there (only to file). Also, the
DOLE should keep its hands off except to facilitate the conduct
of the CE. The DOLE and the ER are mere bystanders. The
DOLE, however, has an active part in the sense that it facilitates
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the conduct up to its final conclusion. Yung ER totally bystander
lang. If you look at the law, there are only 2 occasions that the ER
has a role. ER will only be notified of the petition because natural,
it is the ER who will negotiate with the union with regard its CBA;
and to submit a certified list of the employees. The ER is the one
who knows who are its EEs and who the EEs are in that
bargaining unit (would know who are qualified and disqualified).
At the end of the preliminary conference, the Med-Arbiter will tell
the parties (ER is not a party! The party there is the petitioning
union and any other union which intervenes) of the decision of
the Med-Arbiter whether to grant or deny the petition. All the Med-
Arbiter needs is to see if there is a ground for denial of the petition.
If there is no ground, then it will grant the petition. Focus on the
grounds of denial.
Along the way, there might be issues of consent election,
intervention, and there may be ancillary issues involving the
existence of ER-EE relationship, the Med-Arbiter will have to
resolve that ancillary issue when he issues the order denying or
granting the petition. You have to be alert during the preliminary
conference! Raise the issues!
From the order granting or denying, there is a topic of appeal to
the SOLE. If you look at the LC, you can see there that the
decision of the Med-Arbiter is appealable to the SOLE. But, if you
look at the IRR, there is a qualification. When the establishment
is not organized, then the order granting the petition is not
appealable. That is because there is yet no certified bargaining
agent and the policy of the state is to promote unionism. An order
denying the petition, that is appealable to the Secretary within 10
calendar days. For example, the Med-Arbiter denied the petition
but not under the grounds allowed, then the Med-Arbiter
committed an error of judgment. So you can appeal that order to
the SOLE. On the other hand, if the establishment is organized
(that means there is an existing or incumbent certified bargaining
agent), there is no rush. So, the order granting or denying may
be appealed to the SOLE (if establishment is organized!!).
By the way, if there is another union during the preliminary
conference that wants to participate in the election, there is
nothing wrong with that. Yan ang intervention. What do you do?
Just file a motion to intervene or a petition for intervention. As
long as you are qualified to participate in the CE.
Assuming that the order is appealable to the SOLE, sabi ng Rules
natin sa level ng SOLE “no MR shall be allowed” but that is not
consistent with the principle of exhaustion of administrative
remedies. So, with regard that provision of no motion for
reconsideration allowed, that is not a valid and enforceable
provision. You can file a MR notwithstanding the prohibition under
the Rules. You can file it in 10 days with the SOLE. Of course,
pag na deny, there’s no more appeal. There is however, a remedy
of certiorari under Rule 65 to the CA and Rule 45 to the SC
thereafter.
Once the order granting has attained finality, the Med-Arbiter will
have to endorse the petition to an Election Officer. That means
the Med-Arbiter is not the same as the Election Officer. Yan ang
assignment to an Election Officer. The Election Officer will
conduct the actual election. (gipagawas nami ani, so sorry wa kay
koy sure sa mga gipangdiscuss tbh)
The Election Officer will conduct a pre-election conference. There
are 2 conferences ha! Yung una—preliminary conference (you
already know the matters to be taken up there) and then pre-
election conference. The Election Officer presides in the second
conference. The Election Officer will serve the notice of pre-
election conference and in that same notice, he will direct the
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submission of the certified list of EEs in the bargaining unit. The
ER will be directed to submit the list because sila yung may alam
sa mga empleyado or could be the payroll. But dapat, certified list
of EEs of the bargaining unit. Once it is done, he will conduct the
pre-election conference. Look at inclusion and exclusion
proceedings and qualifications of voters, that’s a lawyer’s job.
That will require a basic background of the labor laws.
Inclusion and exclusion proceedings. This is to include those who
are qualified but were excluded; and exclude who are included
but not qualified. You have to be prepared. What determines your
status as rank and file, supervisory or managerial is your job
description that will spell out your duties and responsibilities. It is
not the title or nomenclature that matters. At the end of the day,
there will be a list of qualified voters. For those names of the EEs
who were sought to be excluded or disqualified, they are
identified as challenged voters. The Election Officer cannot
decide who is disqualified or not. Wala siyang quasi-judicial
power to rule on that. Kapag chinallenge mo yan, the name will
be segregated and be a challenged voter. Walang ruling yan. It is
only the Med-Arbiter that rules or has quasi-judicial power. Since
it is only the Election Officer who is there, there will be no ruling
until the conclusion of the election.
What is another matter taken up during the pre-election
conference? Of course, the date of the election. It must be a
regular working day. Wag mong gawing holiday kasi yung mga
empleyado will not be interested in going to work (so there will be
no successful election or there may even be a failure of election
and there will be no certified BA). To be a valid election, majority
of the eligible voters must cast their vote. Place? It should be in
the establishment and not elsewhere.
Ang idiscuss din sa pre-election conference is the mechanics of
election. Like how many precincts should we have? Polling
booths? Things like that. Anything can be discussed under the
sun. And of course, there is the ballot preparation. With the list of
the qualified voters, the DOLE will know how many ballots to
prepare. Syempre, they will spare some ballots in case they are
spoiled ballots. The DOLE is supposed to ensure the secrecy and
sanctity of the ballot. There should be no duplication of the ballot,
no pre-signing except to authenticate by the parties, etc. These
are things expected to be taken up at the pre-election conference.
By the way, note the notice of election and posting. Kailangan
meron another posting. There are 2 sets of posting—the first one
is the posting of the petition for the CE and the next one is the
posting of the notice of election para all people there will be aware
that on this date, there will be a holding of a CE. At least it will
give them a chance to participate or not participate at all.
Come the day of the election proper. Before the actual conduct
of the election, there will be inspection of the polling place
(whether everything is in order). After that’s done, there will be an
actual voting na. People will queue to get their ballot; they will fill
up the ballot (yes for that union; no for that union). You will sign
your name there. There will be a topic of marking votes and
spoiled ballots (shet throwback election discussion; insert guji
huhu). Just look at the definition of a spoiled ballot. In that 2015
amendment, there is a definition of a spoiled ballot, abstention.
The ballot will have to be placed inside the ballot box. For those
voters that were challenged, although they can cast their vote,
they should not put their ballot inside the ballot box. Otherwise, it
will mix up with the valid votes. And will confuse everybody. Their
votes will have to be segregated and placed in an envelope to be
opened only if it will materially affect the results of the election.
On-the-spot questions, the Election Officer can rule on that.
Nothing to do with the merits of the election. That is within the
power of the Election Officer not the Med-Arbiter.
VANILLAELA (2017-2018)
Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
Protest! “Mr. Election Officer, I would like to manifest my protest
on the conduct of your election! I saw management people inside
the polling place trying to distribute money to the voters” That’s a
protest. You have to ask the Election Officer to record that in the
minutes of the election because after the close of the election,
that protest must be formalized in writing within 5 days.
Otherwise, it will be considered waived. Any deviation from what
the parties agreed upon which the party considers material that
will affect the results of the election will be named a protest. Dapat
alisto ka! Should the Election Officer rule? Noooo, walang power
yung Election Officer to rule on the protest. That will eventually
be submitted to the Med-Arbiter assuming that it is formalized
within 5 days from the close of the election.
If everything has been cast and done, then we are left with the
closure of the election precincts. Canvassing of votes, tabulation
and appreciation of ballots. If you have a valid vote, spoiled ballot,
abstention (not a negative vote; it is also considered to determine
whether the election is valid or not but of course you do not use
that to determine whether you are certified SEBA). When is there
a valid election? When a majority of the eligible voters have cast
their vote and of course, if the union obtains the majority of the
valid votes cast then it may be certified as the SEBA. That is the
so-called double-majority rule. Failure of election. Look at the
definition in your IRR. It’s not in the LC but in the IRR—when the
votes cast is less than the majority of the eligible voters. If there
is a failure of election, we will have to wait for not more than 6
months if there is a motion filed for the conduct of another
election. In the past (15 years ago), the Med-arbiter will
automatically order the conduct of another election and election
and election and election. Makes the lawyer so rich because
there is always an election. But right now, if there is a failure of
election, the Med-Arbiter will have to wait if there is a motion for
the conduct of another election. This will be done within 6 months
from the failure of election. Kung wala, we have to wait for 1 year
from the finality of the last election, before the filing of another
petition for CE. Parang impeachment ba, meron siyang bar.
Runoff election. Don’t forget. There are 3 or more choices, none
of which has obtained the majority of the valid votes cast
notwithstanding a valid election. A runoff election can only be
conducted when there is a valid election. In that valid election,
there are 3 or more choices. None of the unions has obtained the
majority of the valid votes cast. When you say “valid votes cast”,
that excludes spoiled ballots. For a valid election, you have to
count even the spoiled ballots, abstention to determine a valid
election. But to determine whether you are certified as the SEBA,
you must obtain majority of the valid votes cast. That means we
exclude the spoiled ballots and abstention. Why is there a runoff
election? Because if there’s a valid election, that already
indicates the desire of the EEs to organize themselves as a labor
organization, the desire to choose their representatives in
collective bargaining—only that none of which has obtained the
majority of the valid votes cast.
Pagkatapos ng election proper, the minutes inayos na ng Election
Officer, lahat yan i-endorse niya sa Med-Arbiter, who will do the
proclamation of the results of the election. If there is a winner,
certify the winner through the proclamation. That is through an
order issued by the Med-Arbiter on the results of the election.
Re-run election. That is something new. I just want you to look at
the definition of terms. Baka lumabas yan sa multiple choice, you
will be confused again with the different kinds of election.
Whatever is the results of the election, may be appealed to the
SOLE. Look at the LC. Notwithstanding the provision on the
prohibition of filing a MR, of course, under the principle of
7
exhaustion of administrative remedies, we have no choice but to
allow that MR. Remember, before filing certiorari, there must be
no other plan, speedy, adequate remedy under the course of law.
The MR is one of those remedies. From the SOLE to the CA; from
the CA to the SC.
(PowerPoint outline as typed by Nica)
Outline of Certification Election Procedure
Nature: Mere investigation of a non-adversary fact finding
character to ascertain the desire of the employees as to the
matter of their representation. It is not a litigation, however, the
proceedings are quasi-judicial in nature and decisions rendered
therein may as to the coverage of employees who would
constitute the bargaining unit will be governed by res judicata.
Who may file [Art. 251(242)(b) & 270 (258); Rule 8, Sec1]
➡ Any legitimate labor organization may file a petition for
certification election.
Where to file; Venue (Rule 8, Sec 2**) and Jurisdiction [Art
269 (257*)]
➡ A petition for certification election shall be filed with the
Regional Office which issued the petitioning union's
certificate of registration/certificate of creation of chartered
local.
➡ 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
petition was first filed shall exclude all others; in which case,
the latter shall indorse the petition to the former for
consolidation.
Article 269 (257). Petitions in Unorganized Establishments
➡ a certification election shall automatically be conducted by
the Med-Arbiter upon the filing of a petition by any legitimate
labor organization, including a national union or federation
which has already issued a charter certificate to its
local/chapter participating in the certification election or a
local/chapter which has been issued a certificate by the
national union or federation
➡ in cases where the petition was filed by a national union
or federation, it shall not be required to disclose the names
of the local chapter’s officers and members.
When to file [Rule 8, Sec 3; Art 269(257*) & 268 (256*)]
Rule 8, Section 3
GR: A petition for certification election may be filed
anytime
XCPs:
(a) when a fact of voluntary recognition has been entered
or a valid certification, consent or run-off election has
been conducted within the bargaining unit within one
(1) year prior to the filing of the petition for certification
election. Where an appeal has been filed from the
order of the Med-Arbiter certifying the results of the
election, the running of the one year period shall be
suspended until the decision on the appeal has
become final and executory;
(b) when the duly certified union has commenced and
sustained negotiations in good faith with the employer
in accordance with Article 250 of the Labor Code
within the one year period referred to in the
immediately preceding paragraph;
(c) when a bargaining deadlock to which an incumbent or
certified bargaining agent is a party had been
VANILLAELA (2017-2018)
Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018
submitted to conciliation or arbitration or had become
the subject of a valid notice of strike or lockout;
(d) when a collective bargaining agreement between the
employer and a duly recognized or certified
bargaining agent has been registered in accordance
with Article 231 of the Labor Code. Where such
collective bargaining agreement is registered, the
petition may be filed only within sixty (60) days prior
to its expiry.
Art. 269 (257*)
Art. 268(256*)
Contents of Petition (Rule 8, Sec 4*)
➡ The petition shall be in writing, verified under oath by the
president of petitioning labor organization. Where a federation
or national union files a petition in behalf of its local or affiliate,
the petition shall be verified under oath by the president or its
duly authorized representative of the federation or national
union. In case the employer files the petition, the owner,
president or any corporate officer who is authorized by the
board of directors, shall verify the petition. The petition shall
contain the following:
(a) the name of petitioner, its address, and affiliation if
appropriate, the date and number of its certificate of
registration. If the petition is filed by a federation or
national union, the national president or his/her duly
authorized representative shall certify under oath as to the
existence of its local/chapter in the establishment and
attaching thereto the charter certificate or a certified true
copy thereof. If the petition is filed by a local/chapter, it
shall attach its charter certificate or a certified true copy
thereof;
(b) the name, address and nature of employer's business;
(c) the description of the bargaining unit;
(d) the approximate number of employees in the bargaining
unit;
(e) the names and addresses of other legitimate labor unions
in the bargaining unit;
(f) a statement indicating any of the following circumstances:
(1) that the bargaining unit is unorganized or that there
is no registered collective bargaining agreement
covering the employees in the bargaining unit;
(2) if there exists a duly registered collective
bargaining agreement, that the petition is filed
within the sixty-day freedom period of such
agreement; or
(3) 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 date of recording
of such voluntary recognition or conduct of
certification or run-off election and no appeal is
pending thereon.
(g) in an organized establishment, the signature of at least
twenty-five percent (25%) of all employees in the appropriate
bargaining unit shall be attached to the petition at the time of
its filing; and
(h) other relevant facts.
Procedure:
A. Raffle of Petition (Rule 8, Sec 5* & 25) and assignment to
Med-Arbiter
➡ The Regional Director or his/her duly authorized
representative, upon receipt of the petition, shall
immediately assign it by raffle to a Med-Arbiter. The
raffle shall be done in the presence of the petitioner if
the latter so desires. (Rule 8, Sec 5, as amended)
8
➡ When there is no Med-Arbiter available in the Regional
Office by reason of vacancy, prolonged absence, or
excessive workload as determined by the Regional
Director, he/she shall transmit the entire records of the
case to the Bureau, which shall be within 48 hours from
receipt, assign the case to any Med-Arbiter from any of
the Regional Offices or from the Bureau. (Rule 8, Sec
25)
B. Notice of preliminary conference (Rule 8, Sec 6*)
➡ The petition shall immediately be transmitted to the
assigned Med-Arbiter, who shall immediately prepare
and serve a notice of preliminary conference to be held
within 10 working days from the Med-Arbiter’s
receipt of the petition. (as amended)
➡ The service of the petition to the employer and of the
notice of preliminary conference to the petitioner and the
incumbent bargaining agent, if any, shall be made within
3 working days from the Med-Arbiter’s receipt of the
petition. The service may be made by personal service,
by registered mail, or by courier service.
C. Posting of petition and notice (Rule 8, Sec 7**)
D. Preliminary Conference (Section 8, Sec 9) and employer as
bystander [Art 271(258-A*) Rule IX Sec 1**;] and also DOLE
E. Order granting or denying the petition Rule 8, Sec 18**; Art
269 (257*)
(1) Grounds for denial [Rule 8 Sec 14*; Article 268 (256)]
(2) Prohibited ground for denial or suspension of election
[Rule 8, Sec 15; Art 246 (238-A)]
(3) Consent election [Rule 8, sec 10* & Sec 23] and
intervention: other legitimate labor union; interested
employee (Rule 8, Sec 8)
(4) Ancillary Issues (Rule 8, Sec 16*); employer-employee
relationship
(5) Appeal to the Secretary/DOLE (Rule 8, Sec 17 & 21)
and stay of election (Rule 8, Sec 21)
(6) No motion for reconsideration (Rule 8, Sec 21)
(7) Remedy from order; certiorari (Rule 65, ROC)
F. Assignment to Election Officer (Rule 9, Sec 1)
G. Notice of Pre-election conference and submission of list of
employees or payroll (Rule 9, Sec 2*)
H. Pre-election conference (Rule 9, Sec 3&4)
(1) Inclusion or exclusion proceedings and qualification of
voters [Art 255(245*); Rule 9 Sec 6**; Art 219(212)(f)]
(2) Challenge of voter (Rule 9, Sec 10) and list of eligible
voters
I. Notice of Election and posting (Rule 9, Sec 7**)
A. Ballots preparation and signing; Secrecy and Sanctity of
ballot (Rule 9, Sec 8**)
J. Election Proper
(1) Inspection of polling place, booths, etc (Rule 9, Sec 7)
(2) Actual voting
(1) Marking of votes and spoiled ballot (Rule 9, Sect 9)
(2) Challenge of votes procedure; casting of votes
(Rule 9, Sec 10**)
(3) On the spot questions (Rule 9, Sec 11)
(4) Protests (Rule 9, Sec 13**) and Period to Formalize
protest
(5) Closure of Election precincts, canvassing of votes
(Rule 9, Sec 13&14) and tabulation and
appreciation of ballots
(6) Valid election, failure of election (Rule 9, Sec 17-
19) and run-off election (Rule 10, Sec 1&2)
K. Proclamation of results of election and certification of winner;
Certification of Collective Bargaining Agent (Rule 9, Sec 20;
Sec 16**); Re-run Election (Rule 9, Sec 18**)
L. Appeal to the Secretary/DOLE (Art 272 (259); Motion for
Reconsideration Not prohibited prior to Certiorari under Rule
65)
VANILLAELA (2017-2018)
Labor Relations (Finals) Transcript | Atty. Jefferson Marquez | A.Y. 2017-2018 9

JMM DISCUSSION AFTER LONDON BREAK (continuation)

After that, after you have been certified as the SEBA. You will
now be able to exercise the right to collective bargaining and
negotiation. The right to participate in policy and decision-making
processes. The right to engage in lawful, peaceful concerted
activities including the right to strike.

VANILLAELA (2017-2018)