2015 labor union election rules and regulations

(NAR) VOL. 26 NO. 3/ JULY - SEPTEMBER 2015

[ BLR Department Order No. 40-I-15, September 07, 2015 ]

FURTHER AMENDING DEPARTMENT ORDER NO. 40, SERIES OF 2003, AMENDING THE IMPLEMENTING RULES AND REGULATIONS OF BOOK V OF THE LABOR CODE OF THE PHILIPPINES, AS AMENDED

Adopted: 07 September 2015
Date Filed: 21 September 2015
SECTION 1. - Pursuant to Article 5 of the Labor Code, as amended, Book V of the Omnibus Rules Implementing the Labor Code, as amended by Department Order 40, Series of 2003 is hereby amended as follows:

SECTION 2. - Section 1 of Rule I is hereby amended adding “Abstention”, “Re-run Election” and “Spoiled Ballots” in the Definition of Terms, to be re-alphabetized and read as follows:

RULE I
DEFINITION OF TERMS
Section 1. Definition of Terms

a.	“ABSTENTION”REFERS TO A BLANK OR UNFILLED BALLOT VALIDLY CAST BY AN ELIGIBLE VOTER. IT IS NOT CONSIDERED AS A NEGATIVE VOTE. HOWEVER, IT SHALL BE CONSIDERED A VALID VOTE FOR PURPOSES OF DETERMINING A VALID ELECTION.
tt.	“RE-RUN ELECTION”REFERS TO AN ELECTION CONDUCTED TO BREAK A TIE BETWEEN CONTENDING UNIONS, INCLUDING BETWEEN “NO UNION” AND ONE OF THE UNIONS. IT SHALL LIKEWISE REFER TO AN ELECTION CONDUCTED AFTER A FAILURE OF ELECTION HAS BEEN DECLARED BY THE ELECTION OFFICER AND/OR AFFIRMED BY THE MEDIATOR-ARBITER.
ww.	“SPOILED BALLOT”REFERS TO A BALLOT THAT IS TORN, DEFACED, OR CONTAINS MARKINGS WHICH CAN LEAD ANOTHER TO CLEARLY IDENTIFY THE VOTER WHO CASTS SUCH VOTE.

SECTION 3. - Rule VII, Voluntary Recognition, is hereby repealed and replaced by new provision entitled, “REQUEST FOR SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) CERTIFICATION”, to read as follows:

RULE VII
REQUEST FOR SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) CERTIFICATION

SECTION 1. WHERE TO FILE. – ANY LEGITIMATE LABOR ORGANIZATION MAY FILE A REQUEST FOR SEBA CERTIFICATION IN THE REGIONAL OFFICE WHICH ISSUED ITS CERTIFICATE OF REGISTRATION OR CERTIFICATE OF CREATION OF CHARTERED LOCAL.

SECTION 2. REQUIREMENTS FOR REQUEST OF SEBA CERTIFICATION. – THE REQUEST FOR CERTIFICATION SHALL INDICATE:

1. THE NAME AND ADDRESS OF THE REQUESTING LEGITIMATE LABOR ORGANIZATION;
2. THE NAME AND ADDRESS OF THE COMPANY WHERE IT OPERATES;
3. THE BARGAINING UNIT SOUGHT TO BE REPRESENTED;
4. THE APPROXIMATE NUMBER OF EMPLOYEES IN THE BARGAINING UNIT; AND
5. THE STATEMENT OF THE EXISTENCE/NON-EXISTENCE OF OTHER LABOR ORGANIZATION/CBA.

THE CERTIFICATE OF REGISTRATION AS DULY CERTIFIED BY THE PRESIDENT OF THE REQUESTING UNION OR CERTIFICATE OF CREATION OF CHARTERED LOCAL AS DULY CERTIFIED BY THE PRESIDENT OF THE FEDERATION OF THE LOCAL SHALL BE ATTACHED TO THE REQUEST.

SECTION 3. ACTION ON THE REQUEST. – WITHIN ONE (1) DAY FROM THE SUBMISSION OF THE REQUEST, THE REGIONAL DIRECTOR SHALL:

1. DETERMINE WHETHER THE REQUEST IS COMPLIANT WITH THE PRECEDING SECTION AND WHETHER THE BARGAINING UNIT SOUGHT TO BE REPRESENTED IS ORGANIZED OR NOT; AND
2. REQUEST A COPY OF THE PAYROLL FOR PURPOSES OF SEBA CERTIFICATION PURSUANT TO SECTION 4 OF THIS RULE.

IF HE/SHE FINDS IT DEFICIENT, THE REGIONAL DIRECTOR SHALL ADVISE THE REQUESTING UNION OR LOCAL TO COMPLY WITHIN TEN (10) DAYS FROM NOTICE. FAILURE TO COMPLY WITHIN THE PRESCRIBED PERIOD SHALL BE DEEMED WITHDRAWAL OF THE REQUEST FOR SEBA CERTIFICATION.

SECTION 4. REQUEST FOR CERTIFICATION IN UNORGANIZED ESTABLISHMENT WITH ONLY ONE (1) LEGITIMATE LABOR ORGANIZATION; VALIDATION PROCEEDINGS. – IF THE REGIONAL DIRECTOR FINDS THE ESTABLISHMENT UNORGANIZED WITH ONLY ONE LEGITIMATE LABOR ORGANIZATION, HE/SHE SHALL CALL A CONFERENCE WITHIN FIVE (5) WORK DAYS FOR THE SUBMISSION OF THE FOLLOWING:

1. THE NAMES OF EMPLOYEES IN THE COVERED BARGAINING UNIT WHO SIGNIFY THEIR SUPPORT FOR THE CERTIFICATION, PROVIDED THAT SAID EMPLOYEES COMPRISE AT LEAST MAJORITY OF THE NUMBER OF EMPLOYEES IN THE COVERED BARGAINING UNIT; AND
2. CERTIFICATION UNDER OATH BY THE PRESIDENT OF THE REQUESTING UNION OR LOCAL THAT ALL DOCUMENTS SUBMITTED ARE TRUE AND CORRECT BASED ON HIS/HER PERSONAL KNOWLEDGE.

THE SUBMISSION SHALL BE PRESUMED TO BE TRUE AND CORRECT UNLESS CONTESTED UNDER OATH BY ANY MEMBER OF THE BARGAINING UNIT DURING THE VALIDATION CONFERENCE. FOR THIS PURPOSE, THE EMPLOYER OR ANY REPRESENTATIVE OF THE EMPLOYER SHALL NOT BE DEEMED A PARTY-IN-INTEREST BUT ONLY AS A BY-STANDER TO THE PROCESS OF CERTIFICATION.

IF THE REQUESTING UNION OR LOCAL FAILS TO COMPLETE THE REQUIREMENTS FOR SEBA CERTIFICATION DURING THE CONFERENCE, THE REQUEST FOR SEBA CERTIFICATION SHALL BE REFERRED TO THE ELECTION OFFICER FOR THE CONDUCT OF ELECTION PURSUANT TO RULE IX OF THIS RULES.

SECTION 4.1. ACTION ON THE SUBMISSIO N. – IF THE REGIONAL DIRECTOR FINDS THE REQUIREMENTS COMPLETE, HE/SHE SHALL ISSUE DURING THE CONFERENCE A CERTIFICATION AS SOLE AND EXCLUSIVE BARGAINING AGENT ENJOYING THE RIGHTS AND PRIVILEGES OF AN EXCLUSIVE BARGAINING AGENT OF ALL THE EMPLOYEES IN THE COVERED BARGAINING UNIT.

THE REGIONAL DIRECTOR SHALL CAUSE THE POSTING OF THE SEBA CERTIFICATION FOR FIFTEEN (15) CONSECUTIVE DAYS IN AT LEAST TWO (2) CONSPICUOUS PLACES IN THE ESTABLISHMENT OR COVERED BARGAINING UNIT.

SECTION 4.2. EFFECT OF CERTIFICATION. – UPON THE ISSUANCE OF THE CERTIFICATION AS SOLE AND EXCLUSIVE BARGAINING AGENT, THE CERTIFIED UNION OR LOCAL SHALL ENJOY ALL THE RIGHTS AND PRIVILEGES OF AN EXCLUSIVE BARGAINING AGENT OF ALL THE EMPLOYEES IN THE COVERED BARGAINING UNIT.

THE CERTIFICATION SHALL BAR THE FILING OF A PETITION FOR CERTIFICATION ELECTION BY ANY LABOR ORGANIZATION FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF ITS ISSUANCE. UPON EXPIRATION OF THIS ONE-YEAR PERIOD, ANY LEGITIMATE LABOR ORGANIZATION MAY FILE A PETITION FOR CERTIFICATION ELECTION IN THE SAME BARGAINING UNIT REPRESENTED BY THE CERTIFIED LABOR ORGANIZATION, UNLESS A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE EMPLOYER AND THE CERTIFIED LABOR ORGANIZATION WAS EXECUTED AND REGISTERED WITH THE REGIONAL OFFICE IN ACCORDANCE WITH RULE XVII OF THIS RULES.

SECTION 5. REQUEST FOR CERTIFICATION IN UNORGANIZED ESTABLISHMENT WITH MORE THAN ONE (1) LEGITIMATE LABOR ORGANIZATION. – IF THE REGIONAL DIRECTOR FINDS THE ESTABLISHMENT UNORGANIZED WITH MORE THAN ONE LEGITIMATE LABOR ORGANIZATION, HE/SHE SHALL REFER THE SAME TO THE ELECTION OFFICER FOR THE CONDUCT OF CERTIFICATION ELECTION.

THE CERTIFICATION ELECTION SHALL BE CONDUCTED IN ACCORDANCE WITH RULE IX OF THIS RULES.

SECTION 6. REQUEST FOR CERTIFICATION IN ORGANIZED ESTABLISHMENT. – IF THE REGIONAL DIRECTOR FINDS THE ESTABLISHMENT ORGANIZED, HE/SHE SHALL REFER THE SAME TO THE MEDIATOR-ARBITER FOR THE DETERMINATION OF THE PROPRIETY OF CONDUCTING A CERTIFICATION ELECTION IN ACCORDANCE WITH RULES VIII AND IX OF THIS RULES.

SECTION 4. - Section 1 of Rule VIII, as last amended by D.O. 40-F-03, is hereby further amended, to read as follows:

RULE VIII
CERTIFICATION ELECTION

Section 1. Who May File. – Any legitimate labor organization, including a national union or federation that has issued a charter certificate to its local/chapter or the local/chapter itself, may file a petition for certification election.

A national union or federation filing a petition in behalf of its local/chapter shall not be required to disclose the names of the local/chapter’s officers and members, but shall attach to the petition the charter certificate it issued to its local/chapter.

When requested to bargain collectively in a bargaining unit where no registered collective bargaining agreement exists, an employer may file a petition for certification election with the Regional Office.

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 Mediator-Arbiter act favorably on the petition. HOWEVER, MANIFESTATION OF FACTS THAT WOULD AID THE MEDIATOR- ARBITER IN EXPEDITIOUSLY RESOLVING THE PETITION SUCH AS EXISTENCE OF A CONTRACT-BAR, ONE YEAR BAR OR DEADLOCK BAR MAY BE CONSIDERED. THE CONTRACT-BAR RULE SHALL APPLY IN ANY OF THE FOLLOWING: (1) WHEN THERE EXISTS AN UNEXPIRED REGISTERED CBA; OR (2) WHEN THERE IS NO CHALLENGE ON THE REPRESENTATION STATUS OF THE INCUMBENT UNION DURING THE FREEDOM PERIOD.

SECTION 5. - Section 2 of Rule VIII is hereby amended to read as follows:

Section 2. Where to File . – A petition for certification election shall be filed with the Regional Office which issued the petitioning union’s certificate of registration or certificate of creation of chartered local.

AT THE OPTION OF THE PETITIONER, A PETITION FOR CERTIFICATION ELECTION AND ITS SUPPORTING DOCUMENTS MAY ALSO BE FILED ONLINE.

 The petition shall be heard and resolved by the Mediator-Arbiter.

Where two (2) or more petitions involving the same bargaining unit are filed in one (1) Regional Office, the same shall be automatically consolidated with the Mediator-Arbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation.

SECTION 6. - A new provision is hereby inserted as Section 7, to read as follows:

Section 7. POSTING. – THE REGIONAL DIRECTOR OR HIS/HER AUTHORIZED DOLE PERSONNEL, AND/OR THE PETITIONER SHALL BE RESPONSIBLE FOR THE POSTING OF THE NOTICE OF PETITION FOR CERTIFICATION ELECTION.

SECTION 7. - Section 17, Release of Order/Decision within Ten (10) Days from the Last Hearing, is hereby renumbered as Section 18 and amended, to read as follows:

Section 18. Release of Order/Decision within Ten (10) Days from the Last Hearing. – The MEDIATOR-ARBITER shall release his/her order or decision granting or denying the petition personally to the parties WITHIN TEN (10) DAYS FROM THE LAST HEARING, COPY FURNISHED THE EMPLOYER.

SECTION 8. - Sections subsequent to inserted new provisions and/or renumbered sections are re-numbered accordingly.

SECTION 9. - A new provision is hereby added as Section 1, Rule IX, to read as follows:

RULE IX
CONDUCT OF CERTIFICATION ELECTION
SECTION 1. EMPLOYER AS BY-STANDER. – SUBJECT TO THE PROVISIONS OF PARAGRAPH 3, SECTION 1 OF RULE VIII, THE PRINCIPLE OF THE EMPLOYER AS BY-STANDER SHALL BE STRICTLY OBSERVED THROUGHOUT THE CONDUCT OF CERTIFICATION ELECTION. THE EMPLOYER SHALL NOT HARASS, INTIMIDATE, THREAT OR COERCE EMPLOYEES BEFORE, DURING AND AFTER ELECTIONS.

SECTION 10. - Section 5, Qualification of Voters; Inclusion-Exclusion, is hereby renumbered as Section 6 and amended to read as follows:

Section 6. Qualification of Voters; Inclusion-Exclusion. – ALL EMPLOYEES WHO ARE MEMBERS OF THE APPROPRIATE BARGAINING UNIT THREE (3) MONTHS PRIOR TO THE FILING OF THE PETITION/REQUEST SHALL BE ELIGIBLE TO VOTE. 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.

In case of disagreement over the voters’ list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 11 and 12 of this Rule.

SECTION 11. - Section 6, Posting of Notices, is hereby renumbered as Section 7 and amended to read as follows:

Section 7. Posting of Notices. – THE ELECTION OFFICER AND/OR AUTHORIZED DOLE PERSONNEL SHALL CAUSE THE POSTING OF NOTICE OF ELECTION AT LEAST TEN (10) DAYS BEFORE THE ACTUAL DATE OF THE ELECTION IN TWO (2) MOST CONSPICUOUS PLACES IN THE COMPANY PREMISES. The notice shall contain:

1. The date, time and venue/s of the election, which is preferably within the establishment;
2. Names of all contending unions; and
3. The description of the bargaining unit and the list of eligible and challenged voters.

THE POSTING OF THE LIST OF EMPLOYEES COMPRISING THE BARGAINING UNIT SHALL BE DONE BY THE DOLE PERSONNEL.

The posting of the notice of election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer.

SECTION 12. - Section 7 of Rule IX, is hereby renumbered as Section 8 and amended to read as follows:

Section 8. Secrecy and Sanctity of the Ballot. – To ensure secrecy of the ballot, the Election Officer, together with the authorized representatives of the contending unions, shall before the start of the actual voting, inspect the polling place, the ballot boxes and the polling booths.

NO DEVICE THAT COULD RECORD OR IDENTIFY THE VOTER OR OTHERWISE UNDERMINE THE SECRECY AND SANCTITY OF THE BALLOT SHALL BE ALLOWED WITHIN THE PREMISES, EXCEPT THOSE DEVICES BROUGHT IN BY THE ELECTION OFFICER. ANY OTHER DEVICE FOUND WITHIN THE PREMISES SHALL BE CONFISCATED BY THE ELECTION OFFICER AND RETURNED TO ITS OWNER AFTER THE CONDUCT OF THE CERTIFICATION ELECTION.

SECTION 13. Section 9 of Rule IX is hereby renumbered as Section 10 and amended, to read as follow:

Section 10. Casting of Votes. – The voter must put a cross (x) or check (/) mark in the square opposite the name of the chosen union or "No Union"

if she does not want to be represented by any union.

If the voter inadvertently spoils a ballot, he/she shall return it to the Election Officer who shall destroy it and give him/her another ballot.

ANY MEMBER OF THE BARGAINING UNIT WHO IS UNINTENTIONALLY OMITTED IN THE MASTER LIST OF VOTERS MAY BE ALLOWED TO VOTE IF BOTH PARTIES AGREE, OTHERWISE, HE/ SHE WILL BE ALLOWED TO VOTE BUT THE BALLOT IS SEGREGATED.

SECTION 14. - Section 12 of Rule IX is hereby renumbered as Section 13 and amended, to read as follows:

Section 13. Protest; When Perfected. – Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings, Protests not so raised immediately after the last ballot cast are deemed waived.

GENERAL RESERVATION TO FILE A PROTEST SHALL BE PROHIBITED. THE PROTESTING PARTY SHALL SPECIFY THE GROUNDS FOR PROTEST.

The protesting party must formalize its protest with the Mediator-Arbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped.

SECTION 15. - Section 15 of Rule IX is hereby renumbered as Section 16 and amended, to read as follows:

Section 16. Certification of Collective Bargaining Agent. – The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five (5) days from the day of the election, provided no protest is recorded in the minutes of the election.

WHEN THE WINNING CHOICE IS A LOCAL CHAPTER WITHOUT A CERTIFICATE OF CREATION OF CHARTERED LOCAL, SUCH LOCAL CHAPTER SHALL SUBMIT ITS DOLE-ISSUED CERTIFICATE OF CREATION WITHIN FIVE (5) DAYS FROM THE CONCLUSION OF ELECTION.

SECTION 16. - A new provision is hereby added as Section 18, to read as follows:

SECTION 18. RE-RUN ELECTION. – WHEN A CERTIFICATION, CONSENT OR RUN-OFF ELECTION RESULTS TO A TIE BETWEEN THE TWO (2) CHOICES, THE ELECTION OFFICER SHALL IMMEDIATELY NOTIFY THE PARTIES OF A RE-RUN ELECTION. THE ELECTION OFFICER SHALL CAUSE THE POSTING OF THE NOTICE OF RE-RUN ELECTION WITHIN FIVE (5) DAYS FROM THE CERTIFICATION, CONSENT OR RUN-OFF ELECTION. THE RE-RUN ELECTION SHALL BE CONDUCTED WITHIN TEN (10) DAYS AFTER THE POSTING OF NOTICE.

THE CHOICE RECEIVING THE HIGHEST VOTES CAST DURING THE RE-RUN ELECTION SHALL BE DECLARED THE WINNER AND SHALL BE CERTIFIED ACCORDINGLY.

SECTION 17. - Sections subsequent to inserted new provisions and/or renumbered sections are renumbered accordingly.

SECTION 18. - Section 1 of Rule XI is hereby amended to read as follows:

RULE XI
INTER/INTRA-UNION DISPUTES AND OTHER RELATED LABOR RELATIONS DISPUTES
Section 1. Coverage. – Inter/intra-union disputes shall include:

1. Cancellation of registration of a labor organization filed by its members or by another labor organization;
2. Conduct of election of union and workers’ association officers/nullification of election of union and workers’ association officers;
3. Audit/accounts examination of union or workers’ association funds;
4. Deregistration of collective bargaining agreements;
5. Validity/invalidity of union affiliation or disaffiliation;
6. Validity/invalidity of acceptance/non-acceptance for union membership;
7. Validity/invalidity of impeachment/expulsion of union and workers’ association officers and members;
8. VALIDITY/INVALIDITY OF THE SEBA CERTIFICATION;
9. Opposition to application for union and CBA registration;
10. Violations of or disagreements over any provision in a union or workers’ association constitution and by-laws;
11. Disagreements over chartering or registration of labor organizations and collective bargaining agreements;
12. Violations of the rights and conditions of union or workers' association membership;
13. Violations of the rights of legitimate labor organizations, except interpretation of collective bargaining agreements; and
14. Such other disputes or conflicts involving the rights to self-organization, union membership and collective bargaining –
    
    1. Between and among legitimate labor organizations; or
    2. Between and among members of a union or workers’ association.

SECTION 19. Supersession. – All other rules, regulations, issuances, circulars and administrative orders inconsistent herewith are hereby superseded.

SECTION 20. Separability Clause. – If any part or provision of this Order shall be held unconstitutional or invalid, other parts or provisions thereof which are not affected thereby shall continue to be in full force and effect.

SECTION 21. Effectivity. – This Order shall take effect fifteen (15) days following its publication in at least two (2) newspapers of general circulation.

Manila, Philippines, 07 September 2015.

(SGD) ROSALINDA DIMAPILIS-BALDOZ
Secretary