Bars To Certification Election

 

BARS TO CERTIFICATION ELECTION 

Art. 232. Prohibition on Certification Election

 Article 232 discusses what prohibit employees and unions from conducting a Certification Election. While the Labor Code expressly grants employees the right to conduct a Certification Election for their unions, this Article is an exemption to such because it provides for the prohibitions to the holding of such election.

The rationale behind this rule is that rights are always bound to be abused, as history tells us. Thus, there is a need for regulation of rights. Rights are granted but they are not essentially absolute. They are subject to certain limitations and restrictions.

THE THREE BARS TO C.E.  C.E. 

C ont ontract ract B ar R ule --- The Bureau shall not entertain any petition for f or certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties.

--- Basically, a contract prohibiting the holding of a Certification Election. It refers to the existence of a Collective Bargaining  Agreement. Once a contract is executed, the National Labor Relations Board generally does not permit a certification election in the unit covered by the contract until the contract expires.

12- Month  Month Pos Po s t C E B ar --- No certification election may be filed within one year from the date of a valid certification, consent election, or run off election, or from the date of voluntary recognition, or when the Union has commenced negotiations with the employer in accordance with Art.250 of the Labor Code within the 1-year period.

 

--- Any petition for Certification Election can only be entertained within 60 days prior to the expiry date of such agreement, known as the “freedom period”  

--- Where an appeal has been filed on 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 shall have become final and executory.

Deadlo Dead lock ck B ar  --  --- A represe representation ntation q question uestion m may ay not be en entertained tertained if, before tthe he filing of the petition for certification election, a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become subject of valid notice or strike or lockout

Legislative Intent Law of the Law  Law  The law regarding the bars to a Certification Election is built for nothing. It is to ensure stability in the relationship of the workers and the management. Thus speaking, the law looks to avoid conflict between Unions arising from the determination of SEBA (Sole and Exclusive Bargaining Unit).

Moreover, to avoid breach of contract of the parties is a goal of the said law. Finally, the law is an imposition of rules and regulations regarding Certification Election and existing contracts such as the Collective Bargaining Agreement.

Who are the Intended Beneficiaries of the Law? 1. The Bargaining Unions 2. The employees 3. The employer 4. The management

 

5. Med Arbiter 6. NLRB

Specific Rights and Obligations

R ig ht to C onduct a C ertificat ertification ion E lection/ lection/ Obs erve tthe he 3 b ba ars to C E   The Labor Code expressly grants employees’ union the right to conduct a certification election. Rule 2, Sec.1 of D.O. NO. 40-03 provides that it is the policy of the State to promote the free and responsible exercise of the right to self-organization through the establishment of a simplified mechanism for the speedy registration of labor unions and workers associations, determination of representation status and resolution of inter/intra-union and other related labor relations disputes.

With the right granted to employees to join, form and support unions, as well as to conduct a Certification Election comes the obligation to observe the rules and regulations as well as the prohibitions to the holding of such election. The main obligation of unions is to ensure that the observe the 3 bars to certification election; that they comply with its requisites.

BF Goodrich Confidential and Salaried Employees vs BF Goodrich Philippines

FACTS:   FACTS:

 

The Goodrich unions were seeking to be recognized as the bargaining agent of Goodrich employees so that there could be negotiations for a collective bargaining contract. Goodrich countered this by filing for two petitions for certification election with the CIR Strike notices were sent to the company by the union demanding recognition and soon after a strike was actually held. The company then filed a case of illegal strike and unfair labor practice against the unions

ISSUE:   Should the determination of unfair labor practices brought against unions ISSUE: precede the certification election?

LAW APPLICABLE: The Labor Code  Code 

CASE HISTORY:  HISTORY:  CIR - dismissed the petition SC - dismissed petition for certiorari

RULING:   RULING: No. There is no valid reason then for the postponement sought. This is one instance that calls for the application of the maxim, lex dilationes semper exhorret (The law abhors delays). The law clearly contemplates all the employees, not only some of them, to take part in the certification election (Some of the employees could possibly lose such status, by virtue of a pending unfair labor practice case, if such case is to be resolved first before the election)  Another reason (re: no point in the postp postponement onement of s said aid election) is that even iiff the company wins in the pending case, it does not mean that the employees involved automatically would lose their jobs making them ineligible to participate in the certification election.

OPINION: I agree with the Supreme Court's ruling. The employees involved does not automatically lose their jobs i the company wins the case

NLRB vs EFCO

 

  FACTS: United Steelworkers' aforesaid petition was filed on June 25, 1951, at which time there was a subsisting collective bargaining agreement between respondent and Efco Workers Union, an unaffiliated organization, which contract had over seven months to run. The Board has followed a general administrative policy of not entertaining a petition for certification while the employees concerned are covered by a collective bargaining agreement which is not approaching expiration. This policy is, however, a matter largely within the discretion of the Board; and administratively its "contract-bar" rule is not without exceptions. After the hearing there was several months' delay before the Board announced its decision in the representation proceeding.

ISSUE Should the contract bar rule be applied in denying the petition?

LAW APPLICABLE Labor Code, Bars to Certification Election

CASE HISTORY NLRB - directs respondent Efco Manufacturing, Inc., upon request to bargain collectively with United Steelworkers of America CA - upheld NLRB decision

RULING   RULING Some of this delay was attributable to respondent, and it is not clear to us that the Board took an unreasonable time to decide the case after it had been finally submitted. But even if the Board were subject to criticism in this respect, we fail to see how that, in itself, could be a ground for challenge of the Board's ultimate decision. By the time the Board issued its direction of election, on December 4, 1951, the contract with the more or less defunct Efco Workers Union was within a few weeks of its expiration date; and admittedly at that time the contract-bar rule, as it had been formulated by the Board, did not stand in the way of giving the employees a new opportunity to select a different bargaining representative. Hence the Board found it unnecessary to determine whether, if it had reached its decision several months earlier. the Board decided that the question had become moot with the lapse of time.

 

OPINION I agree with the Court of Appeals' decision to uphold the NLRB ruling. Some of the delay was attributable to respondent, and it is not clear that the Board took an unreasonable time to decide the case after it had been finally submitted. Even if the decision came out months earlier, it would under the particular circumstances presented have applied its contract-bar rule to deny a petition for election for the choice of a new bargaining representative.

GENERAL MARITIME STEVEDORES' UNION OF THE PHILIPPINES vs SOUTH SEA SHIPPING LINE

FACTS  Acting on a petition dated October 23, 1953 of the United Seamen's Union of the Philippines, later referred to as USUP, in case No. 43-MC, the CIR issued an order dated February 28, 1955, directing that an election be held among the unlicensed members and crew of the respondent South Sea Shipping Lines, later referred to as Shipping Lines. In said order, the USUP and GMSU were considered eligible to be voted for. The certification election was held on April 15 and June 10, 1955, after which the CIR issued another order dated June 17, 1955, certifying USUP as the exclusive bargaining representative of the laborers and employees of the Shipping Lines. On June 28, 1957, a collective bargaining agreement was entered into between the Shipping Line and the USUP.

GMSU insists that the agreement entered into was but a renewal of an agreement between the USUP and Shipping Line entered into sometime in 1955. On April 30, 1958, that is a little more than two years after the holding of the last certification election, GMSU and its co-petitioners filed with the CIR a petition for certification election, Case No. 546-MC, later numbered as Case No. 547-MC, alleging that there were two labor unions, to which were unlicensed crew members of the Shipping Line, namely, the GMSU and the USUP; that as members of the GMSU petitioners constituted 10% of all the unlicensed crew members of the Shipping Line; and that there had not been a certification election within twelve months before the filing of the petition.

ISSUE: Should the existing agreement entered into by the parties be considered a contract which bars the CE?  CE?  

LAW APPLICABLE  APPLICABLE 

 

  Art. 232, Labor Code (Bars to C.E.)  C.E.) 

CASE HISTORY  HISTORY  NLRB - denied petition for CE CIR - upheld NLRB ruling SC - upheld CIR ruling, denying the petition

RULING The appealed order of the CIR dismissing the petition for certification election and refusing to allow the selection of a new bargaining agent, was valid under the circumstances obtaining at the time. However, inasmuch as there has been a renewal of the bargaining agreement for another two years and because it seems that the present agreement is but a renewal of the one entered into way back in 1955, so that until the expiration of the present agreement, about six years shall have passed, it is advisable that a new certification election be held. For this purpose, this case is hereby remanded to the CIR, so that the petition for certification can be entertained, admitted and given due course, and that a certification election be held, with the understanding that if a bargaining agent other tan the one that negotiated and executed the present bargaining contract, is elected, said new agent would have to respect the present bargaining agreement, but without prejudice to its negotiating with the company for a shortening of the period of the life of the contract, refuse to renew it when it expires, if it so desires, and otherwise represent and protect the interest of the members of the bargaining unit, all of course, within the terms and purview of the bargaining contract.

OPINION The SC is correct in their ruling. The existence of a bargaining agreement beween the mgmt. and employees is a bar to CE

LABOR BOARD v. GENERAL MOTORS

FACTS

 

   An "agency shop" arrangement, which leaves union membership optional with the employees but requires that, as a condition of continued employment, non-union employees pay to the union sums equal to the initiation fees and periodic dues paid by union members, does not in itself constitute an unfair labor practice under Sec.8 (a) and (3) of the National Labor Relations Act and is not prohibited by Sec.7 or 8. In a State which does not prohibit such an arrangement, therefore, an employer commits an unfair labor practice, within the meaning of Sec.8 (a) and (5), when it unconditionally refuses to bargain with a certified union of its employees over the union's proposal for the adoption of such an arrangement

ISSUE: Whether ISSUE:  Whether the employer commits unfair labor practice

LAW APPLICABLE The National Labor Relations Act (US)

CASE HISTORY Solicitor General Cox - argued the cause for petitioners Harry S. Benjamin, Jr - argued the cause for respondents SC - ruled that the employer committed ULP

RULING The employer was not excused from his duty to bargain over the proposal on the theory that his acceding to it would necessarily involve him in an unfair labor practice. Whether a different result obtains in States which have declared such arrangements unlawful is an issue still to be resolved in Retail Clerks Assn. v. Schermerhorn, and one which is of no relevance here because Indiana law does not forbid the present contract proposal.

OPINION Indiana Law does not prohibit nor forbid the present contract proposal. Thus, the employer shall have the duty to bargain with the employees over the proposal

PLDT Employees Union vs PLDT and Free Telephone Workers Union

 

FACTS   FACTS The PLDT Company, a public utility corporation locally organized, filed in the CIR a petition for certification. It alleged that, a week before, it received from the Free Telephone Workers' Union notice of its desire to bargain collectively; that until the receipt of such notice, the Company believed the only legitimate labor organization existing therein was the PLDT Employees Union with which it signed a CBA still in operation; and that said Company was in no position to determine which of the two Unions represented the majority of the workers. The Free Telephone Workers' Union-hereafter designated respondent asserting that it represented the preponderant majority of the employees, manifested its willingness to let the investigation proceed; and answering the Employees' Union's motion to dismiss, it contended that the existing collective bargaining agreement constituted no legal objection, inasmuch as no certification election had been held within the preceding twelve months. As to the alleged impairment of the existing collective contract, it argued there was no such impairment, because 'the contract is between the company and the employees represented by the intervenor union who are the principals and can change their agent at will" by a majority which it is desired to ascertain.

ISSUE: Should CE proceed notwithstanding the fact of who among the Bargaining Units is the  Appropriate Bargaining Unit?

LAW APPLICABLE Labor Code

CASE HISTORY CIR - dismissed petition, remanded for determination of the ABU

RULING   RULING It would seem from the foregoing flrat this petition for review or appeal of the intervenor is premature, the order denying its motion m otion to dismiss not being a final f inal order. The Court had to determine the proper bargaining agency or direct a certification ejection. There was something to be done in theCourt. We W e are aware, of course, that the law permitting appeals to this Court from "any order" of the CIR does not in any line employ the word "final". But it is reasonable to suppose that Congress did not intend to disregard such well-known rule of orderly procedure, which is based partly upon the convenience of the appealing party itself, in the sense of forestalling f orestalling useless appeals. The assertion that the appealed order impairs petitioner's CBA is unfounded, because the tenor of the order precisely contemplates that any bargaining agreement

 

between the Telephone Co. and the newly-found bargaining agency will have effect only after Sept. 14, 1954 when the then existing agreement could be properly terminated.

OPINION   OPINION Court's may rulingbe is renewed meritorious. certifi cation election isby notthe held immediately, the The agreement withIf a orcertification without modification parties thereto and again it may be used as an argument to bar the subsequent holding of a certification election. The result would be to deprive entirely the Free Telephone Workers' Union (PAFLU) of an opportunity to prove that it, and not the PLDT Employees Union, has the majority status and, therefore, entitled to represent all the employees of the Company for collective bargaining purposes.

 S am ample ple Q& A   MAX Inc. had 600 R/F employees. 3 rival unions A, B, and C participated in the CE ordered by the Med-Arbiter. 500 employees voted. The unions obtained the following votes: A-200; B-150; C-50; 90 employees voted "no union"; and 10 were segregated votes. Out of the segregated votes, 4 were cast by probationary employees and 6 were cast by dismissed employees whose respective cases are still on appeal.

(A) Should the votes of the probationary and dismissed employees be counted in the total votes cast for the purpose of determining the winning labor union? (B) Was there a valid election? (C) Should Union A be declared the winner? (D) Suppose the election is declared invalid, which of the contending unions should represent the rank-and-file employees? (E) Suppose that in the election, the unions obtained the following votes: A-250; B-150; C-50; 40 voted "no union"; and 10 were segregated votes.

Should Union A be certified as the bargaining representative?

 A ns wers

 

(A) Yes. The segregated votes should be counted as valid votes. Probationary employees are not among the employees who are ineligible to vote. Likewise, the pendency of the appeal of the six dismissed employees indicates that they have contested their dismissal before a forum of appropriate jurisdiction; hence, they continue to be employees for purposes of voting in a certification election.

(B) Yes. The certification election is valid because it is not a barred election and majority of the eligible voters cast their votes

(C) No. Union A should not be declared the winner because it failed f ailed to garner majority of the valid votes. The majority of 500 votes, representing valid votes, is 251 votes. Since Union A received 200 votes only, it did not win the election . (D) None of the participating unions can represent the rank-and-file employees for purposes of collective bargaining because none of them enjoys majority representative status.

(E) If the 10 votes were segregated on the same grounds, Union A cannot still be certified as the bargaining representative because its vote of 250 is still short of the majority vote of 251. However, if the 10 votes were validly segregated, majority vote would be 246 votes. Since Union a received more than majority vote then it won the election