2014 (Labor Law) Bar Exam Questions: Question 5

[Answer/discuss the question below. Or see 2014 bar exam Labor Law Instructions; 2014 Labor Law essay and multiple choice Questions: 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27; See also 2014 Bar Exam: Information, Discussions, Tips, Questions and Results]

V.

Liwayway Glass had 600 rank-and-file employees. Three rival unions – A, B, and C ? participated in the certification elections 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, four (4) were cast by probationary employees and six (6) were cast by dismissed employees whose respective cases are still on appeal. (10%)

(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?

2 comments

  1. 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?

    Ans: Yes. Employees have the right to form, join or
    assist labor organizations for the purpose of collective
    bargaining or for their mutual aid and protection. Whether
    employed for a definite period or not, they shall, beginning
    on his first day of service, be considered as an
    employee for purposes of membership in any labor union.
    (UST Faculty Union v. Bitonio (1999), see also ART. 277(c))

    The above case applies to probationary employees then. Dismissed
    employees who cases are still on appeal may still be
    allowed to vote because their dismissal status is not yet
    declared final.

    Employees who have been improperly laid off but who have a
    present, unabandoned right to or expectation of
    reemployment, are eligible to vote in certification elections.
    If the dismissal is under question, employees concerned could
    still qualify to vote in the elections. [Philippine Fruits v Torres
    (211 SCRA 95)]

    (B) Was there a valid election?
    Ans: Yes. Article 256 only requires that to have a valid
    election, at least a majority of all eligible voters in the
    unit must have cast their votes. 500 employees of the 600
    rank and file employees have voted and this is more
    than a majority.

    (C) Should Union A be declared the winner?
    Ans:
    Assuming this is an organized establishment,
    Art. 256 provides that
    when an election which provides for three or more choices
    results in no choice receiving a majority of the valid votes
    cast, a run-off election shall be conducted between the
    labor unions receiving the two highest number of
    votes: Provided, that the total number of votes for all contending
    unions is at least fifty percent (50%) of the number of votes cast.

    Here the total number of votes cast for all contending unions
    ( A, B, C) was 400. This figure is more than 50% of the
    number of votes cast (500).

    (D) Suppose the election is declared invalid, which of the contending
    unions should represent the rank-and-file employees?

    Ans: None, an invalid election results to no election.

    (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?

    Yes, because Art. 256 requires only that
    “The labor union receiving the majority of
    the valid votes cast shall be certified as the
    exclusive bargaining agent of all the workers
    in the unit”.

    The total valid votes cast in this case is 490 (250+
    150+50+40) and 250 for Union A satisfies the
    majority requirement.

    ALL EMPLOYEES ENTITLED TO VOTE
    1. All rank-and-file employees in the appropriate bargaining unit:
    The Code makes no distinction as to their employment status.
    All they need to be eligible to support the petition is to belong
    to a bargaining unit. [Airtime Specialists, Inc. v Director of BLR
    (1990)]

    Rationale: Collective bargaining covers all
    aspects of the employment relation and the resultant
    CBA binds all employees in the bargaining unit. All rank
    and file employees, probationary or permanent, have a
    substantial interest in the selection of the bargaining
    representative.

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  2. A. Sec. 5 of the Omnibus Rules implementing the LABOR CODE on exlusion and inclusion of voters
    PROBATIONARY CANNOT VOTE

    The case of NATIONAL UnION OF WORKERSIN HOTELS RESTAURANT AND ALLIED INDUSTRIES: MANILA PAVILLON CHAPTER VS SEC OF DOLE 2009

    Dismissed employee with pending appeal CAN vote

    B.

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