REPRESENTATION CASE

By: Atty. Edwin E. Torres, MSU (2022)

I. MODES OF DETERMINING EXCLUSIVE BARGAINING AGENT:

A. VOLUNTARY RECOGNITION - in an unorganized establishment, the

employer may voluntarily recognize the union as the representative of the
employees in the bargaining unit.

B. COMPULSORY RECOGNITION - the recognition of an exclusive

bargaining agent via a certification election. A certification election may
be initiated by:

a) A legitimate labor organization, or by

b) An employer when requested to bargain collectively and the
status of the union is in doubt.

II. KINDS OF ELECTION:

A. "CERTIFICATION ELECTION" means the process of determining,

through secret ballot, the sole and exclusive bargaining agent of the
employees in an appropriate bargaining unit, for purposes of collective
bargaining.

B. "CONSENT ELECTION" means the election voluntarily agreed upon by

the parties to determine the issue of majority representation of all the
workers in the appropriate collective bargaining unit.

C. "RUN-OFF ELECTION" refers to an election between the labor unions receiving

the two (2) higher number of voters when a certification election which provides
for three (3) or more choices results in no choice receiving a majority of the valid
votes cast, where the total number of votes for all contending unions is at least
fifty percent (50%) of the number of votes cast.

III. BYSTANDER RULE:

Article 258-A is inserted into the Labor Code by RA 9481 to read as follows:

“ART. 258-A. Employer as Bystander. - In all cases, whether the petition for certification
election is filed by an employer or a legitimate labor organization, the employer shall not
be considered a party thereto with a concomitant right to oppose a petition for
certification election. The employer's participation in such proceedings shall be limited
to: (1) being notified or informed of petitions of such nature; and (2) submitting the list
of employees during the pre-election conference should the Med-Arbiter act favorably on
the petition."

Even without the express provision of Section 12 of RA No. 9481, the "Bystander Rule" is
already well entrenched in this jurisdiction. It has been consistently held in a number of cases
that a certification election is the sole concern of the workers, except when the employer itself
has to file the petition pursuant to Article 259 of the Labor Code, as amended, but even after
such filing its role in the certification process ceases and becomes merely a bystander. The
employer clearly lacks the personality to dispute the election and has no right to interfere at all
therein. This is so since any uncalled-for concern on the part of the employer may give rise to
the suspicion that it is batting for a company union. Indeed, the demand of the law and policy
for an employer to take a strict, hands-off stance in certification elections is based on the
rationale that the employees’ bargaining representative should be chosen free from any
extraneous influence of the management; that, to be effective, the bargaining representative
must owe its loyalty to the employees alone and to no other.1

IV. THE REPRESENTATION PROCEEDING:

A. FILING – the PCE is filed with the Regional Office of the DOLE which has jurisdiction of
the principal office of the establishment.

B. WHEN TO FILE – anytime except:

1
Holy Child Catholic School vs. Sto. Tomas, et al. (G.R. No. 179146, 23 July 2013).

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 CERTIFICATION ELECTION BAR RULE – no PCE may be held within one year
from the date of issuance of a final certification election result.

BARGAINING DEADLOCK RULE – no PCE can be entertained if before its filing

a bargaining deadlock to which an incumbent or certified bargaining agent is a
party had been submitted to conciliation or arbitration or had become the
subject of a valid notice of strike or lockout.

CONTRACT BAR RULE – no PCE can be entertained during the pendency of a

duly registered CBA except within 60 days prior to the expiry date thereof
(“freedom period”). Any PCE filed before or after the sixty-day freedom period
shall be dismissed outright.

At the expiration of the freedom period, the employer shall continue to recognize the majority
status of the incumbent bargaining agent where no petition for certification election is filed.
While it is incumbent for the employer to continue to recognize the majority status of the
incumbent bargaining agent even after the expiration of the freedom period, they could only do
so when no petition for certification election was filed. The reason is, with a pending petition for
certification, any such agreement entered into by management with a labor organization is
fraught with the risk that such a labor union may not be chosen thereafter as the collective
bargaining representative. The provision for status quo is conditioned on the fact that no
certification election was filed during the freedom period. 2

The filing of a petition for the cancellation of the union’s registration is not a bar to the conduct
of a certification election. Only a final order for the cancellation of the registration would
prevent the union from continuing to enjoy all the rights conferred on it as a legitimate labor
union, including the right to the petition for the certification election. 3

C. ROLE OF THE MED-ARBITER – The Regional Director assigns the case to the Med-
Arbiter who shall do the following:

(1) In an organized establishment, he immediately orders the election if the

PCE is supported by the written consent of at least 25% of all the
employees of the bargaining unit.

(2) If the PCE is in an unorganized establishment, he immediately orders the

election.

(3) He issues the List of Eligible Voters along with his grant of the PCE.

(4) He dismisses the PCE if it is filed before or after the 60-day freedom
period.

(5) Upon receipt of the results of the election from the Representation Officer
and no protest having been filed, he shall certify the winner of the PCE.

The 60-day freedom period based on the original CBA shall not be affected by any amendment,
extension or renewal of the collective bargaining agreement for purposes of certification
election.

A certification election proceeding directly involves two (2) issues namely: (a) the proper
composition and constituency of the bargaining unit; and (b) the validity of majority
representation claims. It is therefore incumbent upon the Med-Arbiter to rule on the
appropriateness of the bargaining unit once its composition and constituency is questioned.

In a certification election, all rank and file employees in the appropriate bargaining unit,
whether probationary or permanent are entitled to vote. This principle is clearly stated in Art.
255 of the Labor Code which states that the "labor organization designated or selected by the
majority of the employees in an appropriate bargaining unit shall be the exclusive
representative of the employees in such unit for purposes of collective bargaining." Collective
bargaining covers all aspects of the employment relation and the resultant CBA negotiated by
the certified union binds all employees in the bargaining unit. Hence, all rank and file
employees, probationary or permanent, have a substantial interest in the selection of the
2
Picop Resources, Inc. vs. Dequilla, et al. (G.R. No. 172666, 7 December 2011).
3
The Heritage Hotel Manila vs. Secretary of Labor, et al. (G.R. No. 172132, 23 July 2014).

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bargaining representative. The Code makes no distinction as to their employment status as
basis for eligibility in supporting the petition for certification election. The law refers to "all" the
employees in the bargaining unit. All they need to be eligible to support the petition is to belong
to the "bargaining unit."4

D. ROLE OF THE REPRESENTATION OFFICER:

The Representation Officer conducts the election. In conducting the election, he performs the
following acts:

(1) Before the actual voting commences, he shall inspect the polling place, the ballot boxes
and the polling booths to insure secrecy of balloting. The parties shall be given
opportunity to witness the inspection proceedings.

(2) After the examination of the ballot box, he shall lock it with three keys one of which he
shall keep and the rest forthwith given one each to the employer's representative and
the representative of the labor organization. If more than one union is involved, the
holder of the third key shall be determined by drawing of lots. The key shall remain in
the possession of the Representation Officer and the parties during the proceedings and
thereafter until all the controversies concerning the conduct of the election shall have
been definitely resolved.

(3) He shall destroy spoiled ballots – i.e., ballots torn, marked, or defaced, in such a
manner as to create doubt or confusion or identify the voter, it shall be considered
spoiled – and replace them with new ones.

(4) He shall count and tabulate the votes in the presence of the representatives of the
parties.

(5) He shall give each representative a certification of the result of the election and minutes
of the concluded election upon completion of the canvassing.

E. LIST OF ELIGIBLE VOTERS:

The Med-Arbiter’s decision to conduct an election contains a list of eligible voters. The filing of
an appeal to the SOLE from the Med-Arbiter’s Order stays its execution. During the pendency
of the appeal, the employer may hire additional employees. To exclude the employees hired
after the issuance of the Med-Arbiter’s Order but before the appeal has been resolved would
violate the guarantee that every employee has the right to be part of a labor organization from
the first day of their service. The period of reckoning in determining who shall be included in
the list of eligible voters is, in cases where a timely appeal has been
filed from the Order of the Med-Arbiter, 
the date when the Order of the Secretary of Labor and Employment, whether affirming
or denying the appeal, becomes final and executory.5

In a certification election, all rank and file employees in the appropriate bargaining unit,
whether probationary or permanent are entitled to vote. This principle is clearly stated in Art.
255 of the Labor Code which states that the "labor organization designated or selected by the
majority of the employees in an appropriate bargaining unit shall be the exclusive
representative of the employees in such unit for purposes of collective bargaining." Collective
bargaining covers all aspects of the employment relation and the resultant CBA negotiated by
the certified union binds all employees in the bargaining unit. Hence, all rank and file
employees, probationary or permanent, have a substantial interest in the selection of the
bargaining representative. The Code makes no distinction as to their employment status as
basis for eligibility in supporting the petition for certification election. The law refers to "all" the
employees in the bargaining unit. All they need to be eligible to support the petition is to belong
to the "bargaining unit."6

Although included in the list of voters, the votes of the supervisory employees must be
excluded because at the time the certification elections was conducted, they had ceased to be
part of the rank and file, their promotion having taken effect two months before the election. 7

4
National Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavilion Hotel Chapter vs.
Secretary of Labor, et al. (G.R. No. 181531, 31 July 2009).
5
Ibid.
6
Ibid.
7
Ibid.

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An employee who has been dismissed from work but has contested the legality of the
dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the
conduct of a certification election shall be considered a qualified voter, unless his/her
dismissal was declared valid in a final judgment at the time of the conduct of the certification
election.

F. HANDLING OF PROTESTS:

The Representation Officer may rule on any on-the-spot question arising from the conduct of
the election. The interested party may, however, file a protest with the Representation Officer
before the close of the proceedings. Protests not so raised are deemed waived. Such protests
shall be contained in the minutes of the proceedings.

When the protest is formalized before the Med-Arbiter within five (5) days after the close of the
election proceedings, the Med-Arbiter shall decide the same within twenty (20) working days
from the date of its formalization. If not formalized within the prescribed period, the protest
shall be deemed dropped.

G. ELECTION RESULT:

The union which obtained a majority of the valid votes cast by the eligible voters shall be
certified as the sole and exclusive bargaining agent of all the workers in the appropriate unit.
However, in order to have a valid election, at least a majority of all eligible voters in the
bargaining unit must have cast their votes.

The true importance of ascertaining the number of valid votes cast is for it to serve as basis for
computing the required majority, and not just to determine which union won the elections. The
opening of the segregated but valid votes has thus become material. To be sure, the conduct of
a certification election has a two-fold objective: to determine the appropriate bargaining unit
and to ascertain the majority representation of the bargaining representative, if the employees
desire to be represented at all by anyone. It is not simply the determination of who between two
or more contending unions won, but whether it effectively ascertains the will of the members of
the bargaining unit as to whether they want to be represented and which union they want to
represent them. Under the so-called "double majority rule," for there to be a valid certification
election, majority of the bargaining unit must have voted AND the winning union must have
garnered majority of the valid votes cast.8

H. APPEAL:

Any aggrieved party may appeal the order of the Med-Arbiter to the Secretary on the ground
that the rules and regulations or parts thereof established by the Secretary for the conduct of
election have been violated. The filing of the appeal from the decision of the Med-Arbiter stays
the holding of any certification election. The decision of the Secretary is final and inappealable.

Read:

Book V of the Omnibus Rules and Regulations Implementing the Labor Code.

8
National Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavilion Hotel Chapter vs.
Secretary of Labor, et al. (G.R. No. 181531, 31 July 2009).