Determining the Sole and Exclusive Bargaining Agent

Published — March 13, 2019

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

The constitution of the Philippine makes it a duty of the State to assure the workers’ right to self-organization (1987 Constitution, Art. 13, Section 3). It further safeguards the rights of the workers to form unions, associations or societies for purposes not contrary to law (1987 Constitution, Art. 3, Section 8). Through the exercise of these rights, workers can be given collective bargaining agreements to elevate their working conditions and acquire better benefits from their employer.

The negotiated contract between a duly recognized or certified exclusive bargaining agent of workers and their employer, concerning wages, hours of work and all other terms and conditions of employment in the bargaining unit, including mandatory provisions for grievances and arbitration machineries is called a collective bargaining agreement (CBA). One of the requisites for a valid CBA is that the bargaining agent must have been established as the sole and exclusive bargaining agent under the modes provided by the law (Book 5, Rule 1, Sec. 1 [j] of the Implementing Rules and Regulations (IRR) of the Labor Code).

This article is concerned on the established modes of determining the sole and exclusive bargaining agent or SEBA. As mentioned, right to collectively bargain is exercised through SEBA. SEBA refers to a legitimate labor union duly certified as the sole and exclusive bargaining representative or agent of all the employees in a collective bargaining unit (CBU) (Art 219 (j) Labor Code). A bargaining unit refers to a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specified occupational or geographical grouping within such employment (Book 5, Rule 1, Sec. 1 [d] IRR of Labor Code).

Under Article 267 (255) of the Labor Code, only the union certified as SEBA can act as the exclusive representative of the employees in a CBU. Hence, if the union is admittedly not the exclusive representative of the majority of the employees in a CBU, it could not demand from the employer the right to bargain collectively in their behalf (Philippine Diamond Hotel and Resort, Inc. (Manila Diamond Hotel) vs. Manila Diamond Hotel Employees Union 494 SCRA 195, June 30, 2006).

Under the provisions of the Labor Code, SEBA may be determined through any of the following modes:

Request for SEBA certification;
Certification election;
Consent election;
Run-off election;
Re-run election.

Before the foregoing modes are discussed individually in this article, there is a need to point out the distinction between an organized and unorganized establishment, number of unions involved in the electoral exercises and the freedom period. An unorganized establishment is a firm or company without certified SEBA, while an organized establishment is an enterprise where there exists a SEBA, regardless of whether a CBA has been concluded or not by such SEBA with the employer.

As to the number of unions in the electoral exercises, a single or multiple union may be involved. Single union election is when there is only one union in contention who files for Petition for Certification Election (PCE), its opponent is the “no union” vote. On the other hand, multiple unions election is when there are two (2) or more unions in contention which results may give rise to other kinds of elections, namely, Consent, Run-off and Re-run Elections.

Freedom period is the last sixty (60) days of the 5-year lifetime of the CBA immediately prior to its expiration. This is the period when the law allows the parties to freely serve a notice to terminate, alter, or modify the existing CBA. This is also the time when the majority status of the CBA may be challenged by another union by filing the appropriate Petition for Certification Election (PCE) (Tanduay Distillery Labor Union vs. NLRC 149 SCRA 470, April 30, 1987).

Request for SEBA Certification

Any legitimate labor organization may file a Request in the DOLE Regional Office which issued the certificate of registration or certificate of creation of chartered local, as the case may be (Book V, Rule 7, Sec 1 IRR of Labor Code). The request should indicate the following:

The name and address of the requesting legitimate labor organization;
The name and address of the company where it operates;
The bargaining unit sought to be represented;
The approximate number of employees in the bargaining unit; and
The statement of the existence or non-existence of other labor organization or CBA.

There are three (3) scenarios involving a request for Certification under the Rules governing the Labor Code, these are:

Request for certification in unorganized establishment with only one (1) legitimate union. No certification election is required in this case unless the requesting union fails to complete the requirements for SEBA certification.
Request for certification in unorganized establishment with more than one (1) legitimate labor organization.
Request for certification in organized establishment

For the third (3^rd) and fourth (4^th) scenarios, the calling of a certification election is involved.

Certification Election

A certification election refers to the process of determining through secret ballot the SEBA of the employees in an appropriate CBU for purposes of collective bargaining negotiations. A certification election is conducted only upon the order of the Med-Arbiter of the Bureau of Labor Relations (BLR). (Book V, Rule 1, Sec 1(h) IRR of Labor Code)

In an organized establishment, a PCE shall be filed questioning the majority status of the incumbent bargaining agent before DOLE within the sixty (60) day freedom period. The PCE must be supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit. It is manifested through signature to support. On the other hand, in case of an unorganized establishment, the only requirement is the petitioning union should be legitimate.

Aside from the requirement for the validity of PCE, the requisites for the validity of the certification election and the valid determination of the winning union are also essential. Under the so-called double majority rule, for there to be a valid certification election, majority of the bargaining unit must have voted (first majority) and the winning union must have garnered majority of the valid votes cast (second majority) (National Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavillion Hotel Chapter vs. Secretary of Labor and Employment 594 SCRA 773, July 31, 2009).

Provided below is an illustration of the double majority rule:

It must be stressed that no union is always a choice in a certification election under the principle that the right to join also includes the right not to join. If no union wins, then there is no SEBA, the other unions are only allowed to file for new certification election after the one (1) year statutory bar rule, unless the conduct of re-run or run-off election is justified.

Consent Election

Consent Election refers to the process, voluntarily and mutually agreed upon by the contending unions, of determining through secret ballot the SEBA of the employees in an appropriate CBU for purposes of collective bargaining or negotiation (Rule 1, Section 1 (y) of the Rules Implementing (IRR) the Labor Code). It is conducted with or without the intervention of the Department of Labor and Employment (DOLE).

Run-off Election

When at least three (3) or more unions are involved in the certification election and not one of them has garnered the majority of the valid votes cast but the total votes of all the contending unions is equivalent to at least 50% of the valid votes.

Provided below is an illustration where run-off election is called for:

Re-run Election

A re-run election is called for when there is a tie or failure of election in a certification election involving two (2) or more unions.

Re-run election is conducted to break a tie in a valid certification election or when there is a need to cure a failure of election. Certification Election is invalidated or nullified by a multitude of reasons that negate the true will, undistorted desire and informed choice. There is also a failure of election when less than majority of the number of eligible voters participated on the election and there are no challenged votes that could materially change the result of the election.

Provided below are illustrations depicting a call for a Re-run Election:

OTHER SOURCES:
Joselito Guianan Chan, Bar Reviewer on Labor Law, 3rd Revised edition, ChanRobles Publishing Company (2017)

Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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