LEGAL NOTE 0052: CERTIFICATION ELECTION

 SOURCE: SAMAHANG MANGGAGAWA SA CHARTER CHEMICAL SOLIDARITY OF UNIONS IN THE PHILIPPINES FOR EMPOWERMENT AND REFORMS (SMCC-SUPER), ZACARRIAS JERRY VICTORIO – UNION PRESIDENT VS. CHARTER CHEMICAL AND COATING CORPORATION (G.R. NO.  169717, 16 MARCH 2011, DEL CASTILLO, J.) SUBJECTS: CERTIFICATION ELECTION; LEGITIMACY OF RANK AND FILE LABOR UNION. (BRIEF TITLE: SAMAHANG MANGGAGAWA ET AL VS. CHARTER CHEMICAL). 

 

WHAT IS THE PURPOSE OF CERTIFICATION ELECTION PROCEEDING?

TO DETERMINE WHICH ORGANIZATION WILL REPRESENT THE EMPLOYEES IN THEIR COLLECTIVE BARGAINING WITH THE EMPLOYER.

 

CAN THE EMPLOYER QUESTION THE LEGITIMACY OF THE LABOR UNION IN SUCH PROCEEDINGS?

NO. THE EMPLOYER IS A MERE BYSTANDER. THE CHOICE OF THE EMPLOYEES’ REPRESENTATIVE IS THE EXCLUSIVE CONFERN OF THE EMPLOYEES AND THE EMPLOYER CANNOT HAVE A PARTISAN INTEREST THEREIN. IT CANNOT THEREFORE INTERFERE WITH OR OPPOSE THE PROCESS. ITS ONLY RIGHT IS TO BE NOTIFIED OR INFORMED THEREOF.

Petitioner union correctly argues that its legal personality cannot be collaterally attacked in the certification election proceedings. As we explained in Kawashima:

                Except when it is requested to bargain collectively, an employer is a mere bystander to any petition for certification election; such proceeding is non-adversarial and merely investigative, for the purpose thereof is to determine which organization will represent the employees in their collective bargaining with the employer. The choice of their representative is the exclusive concern of the employees; the employer cannot have any partisan interest therein; it cannot interfere with, much less oppose, the process by filing a motion to dismiss or an appeal from it; not even a mere allegation that some employees participating in a petition for certification election are actually managerial employees will lend an employer legal personality to block the certification election. The employer’s only right in the proceeding is to be notified or informed thereof.

The amendments to the Labor Code and its implementing rules have buttressed that policy even more.[33]

 

UNDER THE 1997 RULES WHAT ARE THE REQUISITES FOR CREATION BY A NATIONAL FEDERATION OF A LOCAL CHAPTER?

The then prevailing Section 1, Rule VI of the Implementing Rules of Book V, as amended by D.O. No. 9, series of 1997, provides:

Section 1. Chartering and creation of a local chapter — A duly registered federation or national union may directly create a local/chapter by submitting to the Regional Office or to the Bureau two (2) copies of the following:

(a)  A charter certificate issued by the federation or national union indicating the creation or establishment of the local/chapter;

(b)  The names of the local/chapter’s officers, their addresses, and the principal office of the local/chapter; and

(c)  The local/chapter’s constitution and by-laws provided that where the local/chapter’s constitution and by-laws [are] the same as [those] of the federation or national union, this fact shall be indicated accordingly.

All the foregoing supporting requirements shall be certified under oath by the Secretary or the Treasurer of the local/chapter and attested to by its President.

 

THE CHARTER CERTIFICATE WAS SUBMITTED BUT NOT UNDER OATH? DOES THIS INVALIDATE THE REGISTRATION OF THE  LOCAL CHAPTER?

NO.  SUCH CERTIFICATE IS PREPARED BY THE NATIONAL UNION. IT WOULD NOT BE PROPER FOR THE LOCAL CHAPTER TO CERTIFY ON A DOCUMENT IT DID NOT PREPARE.

However, in San Miguel Corporation (Mandaue Packaging Products Plants) v. Mandaue Packing Products Plants-San Miguel Corporation Monthlies Rank-and-File Union-FFW (MPPP-SMPP-SMAMRFU-FFW),[22] which was decided under the auspices of D.O. No. 9, Series of 1997, we ruled – 

In San Miguel Foods-Cebu B-Meg Feed Plant v. Hon. Laguesma, 331 Phil. 356 (1996), the Court ruled that it was not necessary for the charter certificate to be certified and attested by the local/chapter officers. Id. While this ruling was based on the interpretation of the previous Implementing Rules provisions which were supplanted by the 1997 amendments, we believe that the same doctrine obtains in this case. Considering that the charter certificate is prepared and issued by the national union and not the local/chapter, it does not make sense to have the local/chapter’s officers x x x certify or attest to a document which they had no hand in the preparation of.[23] (Emphasis supplied) 

In accordance with this ruling, petitioner union’s charter certificate need not be executed under oath. Consequently, it validly acquired the status of a legitimate labor organization upon submission of (1) its charter certificate,[24] (2) the names of its officers, their addresses, and its principal office,[25] and (3) its constitution and by-laws[26]— the last two requirements having been executed under oath by the proper union officials as borne out by the records.

 

THE EMPLOYER CONTENDS THAT THE LABOR UNION CANNOT BE CONSIDERED LEGITIMATE BECAUSE IT HAS BOTH RANK AND FILE AND SUPERVISORY EMPLOYEES. IS  THE EMPLOYER CORRECT?

NO. UNDER THE PRESENT RULES, A MIXTURE OF RANK AND FILE AND SUPERVISORY EMPLOYEES IN A LABOR UNION DOES NOT NULLIFY ITS LEGAL PERSONALITY BECAUSE IT IS NO LONGER A GROUND FOR CANCELLATION OF THE REGISTRATION OF A  LABOR UNION.

Then came Tagaytay Highlands Int’l. Golf Club, Inc. v. Tagaytay Highlands Employees Union-PGTWO in which the core issue was whether mingling affects the legitimacy of a labor organization and its right to file a petition for certification election. This time, given the altered legal milieu, the Court abandoned the view in Toyota and Dunlop and reverted to its pronouncement in Lopez that while there is a prohibition against the mingling of supervisory and rank-and-file employees in one labor organization, the Labor Code does not provide for the effects thereof. Thus, the Court held that after a labor organization has been registered, it may exercise all the rights and privileges of a legitimate labor organization. Any mingling between supervisory and rank-and-file employees in its membership cannot affect its legitimacy for that is not among the grounds for cancellation of its registration, unless such mingling was brought about by misrepresentation, false statement or fraud under Article 239 of the Labor Code.

In San Miguel Corp. (Mandaue Packaging Products Plants) v. Mandaue Packing Products Plants-San Miguel Packaging Products-San Miguel Corp. Monthlies Rank-and-File Union-FFW, the Court explained that since the 1997 Amended Omnibus Rules does not require a local or chapter to provide a list of its members, it would be improper for the DOLE to deny recognition to said local or chapter on account of any question pertaining to its individual members.

More to the point is Air Philippines Corporation v. Bureau of Labor Relations, which involved a petition for cancellation of union registration filed by the employer in 1999 against a rank-and-file labor organization on the ground of mixed membership: the Court therein reiterated its ruling in Tagaytay Highlands that the inclusion in a union of disqualified employees is not among the grounds for cancellation, unless such inclusion is due to misrepresentation, false statement or fraud under the circumstances enumerated in Sections (a) and (c) of Article 239 of the Labor Code.

All said, while the latest issuance is R.A. No. 9481, the 1997 Amended Omnibus Rules, as interpreted by the Court in Tagaytay Highlands,San Miguel and Air Philippines, had already set the tone for it. Toyota and Dunlop no longer hold sway in the present altered state of the law and the rules.[32] [Underline supplied]

 

CAN  THOSE HOLDING  SUPERVISORY POSITIONS  AND SECURITY GUARDS JOIN THE RANK AND FILE LABOR UNION?

NO. BUT THEY CAN FORM THEIR OWN UNION.

R.A. No. 6715 omitted specifying the exact effect any violation of the prohibition [on the co-mingling of supervisory and rank-and-file employees] would bring about on the legitimacy of a labor organization.

It was the Rules and Regulations Implementing R.A. No. 6715 (1989 Amended Omnibus Rules) which supplied the deficiency by introducing the following amendment to Rule II (Registration of Unions):

“Sec. 1. Who may join unions. – x x x Supervisory employees and security guards shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own; Provided, that those supervisory employees who are included in an existing rank-and-file bargaining unit, upon the effectivity of Republic Act No. 6715, shall remain in that unit x x x. (Emphasis supplied)

[1]       Rollo, pp. 29-36; penned by Associate Justice Estela M. Perlas-Bernabe and concurred in by Associate Justices Elvi John S. Asuncion and Hakim S. Abdulwahid.

[2]       Id. at 74-75.

[3]       Id. at 38.

[4]       Id. at 214-223.

[5]       Id. at 215-220.

[6]       Id. at 40-50.

[7]       PRESIDENTIAL DECREE NO. 442, as amended.

[8]       Rollo, pp. 52-54.

[9]       Id. at 75.

[10]     Id. at 36.

[11]     335 Phil. 1045 (1997).

[12]     Rollo, pp. 12-13.

[13]     443 Phil. 841 (2003).

[14]     Supra note 11.

[15]     Upon reconsideration, the DOLE noted that the other union which allegedly filed a prior petition for certification election was prevented from doing so because its petition for certification election was filed out of time. Thus, there was no obstacle to the conduct of a certification election in respondent company.

[16]     “An Act Strengthening the Workers’ Constitutional Right to Self-Organization, Amending for the Purpose Presidential Decree No. 442, as Amended, Otherwise Known as the Labor Code of the Philippines.”

[17]     Republic v. Kawashima Textile Mfg., Philippines, Inc., G.R. No. 160352, July 23, 2008, 559 SCRA 386, 396.

[18]     “An Act to Extend Protection to Labor, Strengthen the Constitutional Rights of Workers to Self-Organization, Collective Bargaining and Peaceful Concerted Activities, and Foster Industrial Peace and Harmony.”  Effective March 21, 1989.

[19]     Approved on May 24, 1989.

[20]     Effective: June 21, 1997.

[21]     Supra note 17 at 396-397.

[22]     504 Phil. 376 (2005).

[23]     Id. at 400.

[24]     DOLE records, p. 51.

[25]     Id. at 43-44.

[26]     Id. at 25-40.

[27]     Article 245. Ineligibility of Managerial Employees to Join Any Labor Organization; Right of Supervisory Employees.— x x x Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. x x x

[28]     Supra note 11.

[29]     Respondent company claimed that the batchman, mill operator and leadman perform, among others, the following functions:

        Prepares, coordinates and supervises work schedules and activities of subordinates or helpers in their respective area of responsibility.

1.       Recommends the reduction, increase, transfer and number of employees assigned to them.

2.       Sees to it that daily production schedules and outputs are carried on time.

3.       Coordinates with their respective managers the needed raw materials and the quality of finished products. (Rollo, p. 220)

[30]     Article 212(m) of the Labor Code, states in part: “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. x x x”

[31]     Supra note 17.

[32]     Id. at 402-407.

[33]     Id. at 408.