Certification Election

Atty. Dominic Victor C. De Alban

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It is the policy of the State to promote free trade
unionism through expeditious procedures
governing the choice of an exclusive bargaining
agent. The determination of such exclusive
bargaining agent is a non-litigious proceeding and,
as far as practicable, shall be free from technicalities
of law and procedure, provided only that in every
case, the exclusive bargaining agent enjoys the
majority support of all the employees in the
bargaining unit.

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 How can a sole and exclusive bargaining
representative chosen?
• Certification election
• Consent election
• Voluntary recognition
• Run-off election

Direct certification not anymore allowed

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 Certification Election
• Refers to the process of determining through
secret ballot the sole and exclusive
representative of the employees in an
appropriate bargaining unit for purposes of
collective bargaining or negotiation.
• It is ordered by the Department of Labor

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 Consent Election
• Voluntarily agreed upon by the parties, with or
without the intervention by the Department
of labor.

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 Voluntary recognition
1. In an UNORGANIZED ESTABLISHMENT
2. ONLY ONE legitimate labor organization
3. EMPLOYER VOLUNTARILY RECOGNIZES the
said labor organization

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 Nature of Certification Election
• It is the fairest and most effective way of determining
which labor organization can truly represent the
working force. WHY?
• Because:
– Election
– Secret ballot
• It is not a litigation in the sense in which the term is
ordinarily understood, but an investigation of non-
adversary and fact finding character. As such, it is not
bound by technical rules of evidence
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Who may petition for certification election?

• Legitimate labor organization

– Independent union
– Local or chapter of a federation/Affiliate
– Federation on behalf of the local or chapter
• Employer when requested to bargain
collectively.

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Bato Hardware Inc. (BHI) has two labor
organizations. One is Kilusang Manggagawang
Bato (KMB) and the other is Batonians Worker’s
Union (BWU). Both organizations are competing
to be the sole and bargaining representatives of
BHI. However, it is rumored that KMB is already
infiltrated by members of leftist group while
BWU is composed of the reasonable members
of the employer’s workforce. Being the HR
manager, what is the most prudent thing to do?

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Employer not a party; By-stander principle
• 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:
– being notified or informed of petitions of such nature
– submitting the list of employees during the pre-election
conference should the Med-Arbiter act favorably on the petition
• The proceedings shall be the sole concern of the workers

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 Role of the employer in a certification
election
• Certification is the sole concern of the workers
• Only exception is when the employer has to
file a petition for certification election because
it is requested to bargain collectively
– Thereafter the role of the employer in the
certification process ceases
– It becomes a mere by-stander

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 Pendency of a petition for cancellation of
union’s registration
• As long as there is no final order for the
cancellation of the registration of the
petitioner union, the certification election
should be allowed to proceed.

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 Where should the petition be filed?

• It should be filed with the Regional Office

which issued the petitioning union’s certificate
of registration/certificate of creation of
chartered local.

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 Organized establishment
• It is an enterprise where there exists a
recognized or certified exclusive bargaining
agent.
• Otherwise stated, an UNORGANIZED
establishment is an enterprise where there is
no recognized or certified bargaining agent.

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 Who are entitled to vote?
• All the employees in the appropriate
bargaining unit are entitled to vote in a
certification election.
• Membership in a union is not a requirement;
it is only necessary that the employee belongs
to the bargaining unit.

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Conditions for Certification Election by Secret
Ballot
• In an organized establishment:
1.) A petition was filed questioning the majority
status of the incumbent bargaining agent.
2.) Petition is verified.
3.) Supported by written consent of at least 25%
of all employees in the bargaining unit.

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25% written consent of all employees in the
bargaining unit
• The rule requiring the submission of 25%
consent signatures should not be strictly
applied to frustrate the determination of the
legitimate representative of the workers.
• Filing of petition for certification election
within freedom period is sufficient subject to
the submission of the consent signatures
within a reasonable period.

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• The Med-arbiter is still empowered to order
that certification election be conducted despite
statutory requirement of 25% consent
signature not strictly complied with to ascertain
which of the contending labor organizations
shall be the exclusive bargaining agent.
– The Med-arbiter must determine whether the
purpose of the 25% requirement is present –
whether the incumbent agent still has the mandate
of the employees.

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• In an unorganized establishment:
Upon filing of a petition by a legitimate labor
organization.
-No need for 25% signatures unlike in an
organized establishment.

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 Withdrawal of Written Consent
• If made before the filing of the petition:
– Presumed voluntary
• If after the filing of the petition:
– Deemed involuntary
• The best forum to determine whether the
retraction is voluntary is through certification
election.

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• When a petition for certification election was
filed in an organized establishment, any
legitimate labor union other than the
incumbent bargaining agent operating within
the bargaining unit may file a motion for
intervention with the Med-Arbiter during the
freedom period of the collective bargaining
agreement.

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Petition for Certification Election may be filed
anytime except:
1. 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 year
prior to the filing of the petition for
certification election (One-year Bar Rule).
2. Duly certified union commenced negotiations
in good faith with employer.

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3. When a bargaining deadlock which an incumbent
bargaining agent is a party had been submitted for
conciliation/arbitration or a subject of
strike/lockout (Deadlock Bar Rule).
4. When there is a collective bargaining agreement
between the employer and a duly recognized or
certified bargaining agent has been registered,
petition may only be filed within 60 days (freedom
period) prior to its expiry (Contract Bar Rule).

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 One-year Bar
• To be a bar to the holding of a certification
election, the collective bargaining agreement
must provide for substantial benefits to the
employees.
• A sweetheart contract will not bar a
certification election.
– A sweetheart contract is one which simply grants
benefits already enjoyed by the workers under
existing laws.
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 Freedom period
• The 60 day period wherein a petition for certification
election may be filed to question the majority status of the
bargaining agent.
• Any petition filed before or after the said period shall be
dismissed outright.
• The prohibition for a petition outside the freedom period is
to ensure the industrial peace between the employer and
the employees during the existence of the CBA.
• 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.
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 Deadlock Bar Rule
• A petition for certification election can only be
entertained if there is no pending bargaining
deadlock submitted to conciliation or
arbitration or which has become the subject
of a valid notice of strike or lockout.

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 Contract Bar Rule
• The existence of a collective bargaining agreement duly
filed with the Department bars a certification election in
the bargaining unit except with in 60 days prior to the
expiration of the life of such contract.
• This is to assure industrial peace and stability.
• Belated registration of the CBA will not affect the
application of the contract bar rule otherwise technical
rules will defeat the primary purpose of the law which is to
foster industrial peace.
• However it does not prohibit the creation and registration
of a Labor organization outside the freedom period.
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 Contract bar rule should not be used to
defeat right of workers
• A collective bargaining agreement which is prematurely
renewed is not a bar to the holding of a certification
election.
– The reckoning point of the freedom period is still 60 days
before the expiration of the original period of the agreement.
• An incumbent union whose membership dwindled
because most of its members formed another union
delayed the filing of the petition of the new union by
questioning its registration and hastily concluding a CBA
with the employer for the contract bar rule to apply.

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 Prohibition for petition for certification
election after freedom period
• Despite the lapse of the formal effectivity of
the CBA, the law still considers the same as
continuing in force and effect until a new CBA
shall have been validly executed.

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 Company Dominated Union
• A union formed or created with the assistance
or through the initiative of the employer.
• Pendency of a formal charge of company
domination is a prejudicial question that, until
decided, bars proceedings for a certification
election, the reason being that the votes of
the members of the dominated union would
not be free.

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Procedure for a Valid Certification Election

1. Majority of the members of the bargaining

unit must have casted their votes.
2. Majority of the valid votes cast is needed to
for a union to win the election.
– Spoiled ballots are not counted in determining
the majority.
– Majority is 50% plus one of the valid votes cast
excluding spoiled ballots.

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Grounds for Questioning an Employee’s Vote

1. There is no employer-employee relationship

between him and the employer.
2. The employee voter is not a member of the
bargaining unit.

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 Run-off election
• Refers to an election between the labor unions
receiving the two (2) highest number of votes in a
certification or consent election with three (3) or
more choices, where such a certified or consent
election results in none of the three (3) or more
choices receiving the majority of the valid votes cast;
provided that the total number of votes for all
contending unions is at least fifty percent (50%) of
the number of votes cast.
• “No Union” shall not be a choice.
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 Direct Certification
• It is no longer allowed as a method of selecting the
bargaining agent because it may defeat the rights
of the workers.
• Fact that no opposition is made does not warrant a
direct certification.
• Certification election as the most effective and
most democratic way of determining which labor
organization can truly represent the working force.
• Can also be subject to abuse by a company union.

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 Individual Bargaining
• Although there may exist an exclusive
bargaining representative in the unit, an
individual employee or group of employees
have the right at any time to present
grievances to their employer.

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 Election of Sole and Exclusive Bargaining
Agent
• The sole and exclusive bargaining
representative acts in favor of all the members
of the bargaining unit not only its members.

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 References:
• Alcantara, Samson. Labor Law Reviewer
(2014).
• Chan, Joselito. Labor Law Book II (2009).
• Labor Code of the Philippines.

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