Nuhrwrain Manila Pavillion Vs Sec of Labor

G.R. No.
181531
July 31, 2009
NATIONAL UNION OF WORKERS IN HOTELS, RESTAURANTS AND ALLIED INDUSTRIES- MANILA PAVILION HOTEL
CHAPTER vs. SECRETARY OF LABOR AND EMPLOYMENT, BUREAU OF LABOR RELATIONS, HOLIDAY INN MANILA PAVILION HOTEL
LABOR UNION AND ACESITE PHILIPPINES HOTEL CORPORATION
FACTS: A certification election was conducted on June 16, 2006 among the rank-and-file employees of respondent Holiday Inn Manila Pavilion Hotel
(the Hotel) with the following results:
EMPLOYEES IN VOTERS LIST =
TOTAL VOTES CAST =
NUWHRAIN-MPHC =
HIMPHLU =
NO UNION =
SPOILED =
SEGREGATED =
353
346
151
169
1
3
22
In view of the significant number of segregated votes, contending unions, petitioner, NUHWHRAIN-MPHC, and respondent Holiday Inn Manila
Pavillion Hotel Labor Union (HIMPHLU), referred the case back to Med-Arbiter to decide which among those votes would be opened and tallied. 11
votes were initially segregated because they were cast by dismissed employees, albeit the legality of their dismissal was still pending before the
Court of Appeals. Six other votes were segregated because the employees who cast them were already occupying supervisory positions at the time
of the election. Still five other votes were segregated on the ground that they were cast by probationary employees and, pursuant to the existing
Collective Bargaining Agreement (CBA), such employees cannot vote. It bears noting early on, however, that the vote of one Jose Gatbonton
(Gatbonton), a probationary employee, was counted.
Med-Arbiter Calabocal ruled for the opening of 17 out of the 22 segregated votes, specially those cast by the 11 dismissed employees and those
cast by the six supposedly supervisory employees of the Hotel.
Petitioner, which garnered 151 votes, appealed to the Secretary of Labor and Employment (SOLE), arguing that the votes of the probationary
employees should have been opened considering that probationary employee Gatbontons vote was tallied. And petitioner averred that respondent
HIMPHLU, which garnered 169 votes, should not be immediately certified as the bargaining agent, as the opening of the 17 segregated ballots would
push the number of valid votes cast to 338 (151 + 169 + 1 + 17), hence, the 169 votes which HIMPHLU garnered would be one vote short of the
majority which would then become 169.
Secretary affirmed the decision of the med-arbiter. In fine, the SOLE concluded that the certification of HIMPHLU as the exclusive bargaining agent
was proper.
ISSUES: (1) whether employees on probationary status at the time of the certification elections should be allowed to vote (2) whether HIMPHLU was
able to obtain the required majority for it to be certified as the exclusive bargaining agent.
HELD:
I. On the first issue, the Court rules in the affirmative.
The inclusion of Gatbontons vote was proper not because it was not questioned but because probationary employees have the right to vote in a
certification election. The votes of the six other probationary employees should thus also have been counted. As Airtime Specialists, Inc. v. FerrerCalleja holds:
In a certification election, all rank and file employees in the appropriate bargaining unit, whether probationary or permanent are entitled to vote. This
principle is clearly stated in Art. 255 of the Labor Code which states that the labor organization designated or selected by the majority of the
employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for purposes of collective
bargaining. Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union
binds all employees in the bargaining unit. Hence, all rank and file employees, probationary or permanent, have a substantial interest in
the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility in
supporting the petition for certification election. The law refers to all the employees in the bargaining unit. All they need to be eligible to
support the petition is to belong to the bargaining unit. (Emphasis supplied)
For purposes of this section (Rule II, Sec. 2 of Department Order No. 40-03, series of 2003), any employee, whether employed for a definite
period or not, shall beginning on the first day of his/her service, be eligible for membership in any labor organization.
All other workers, including ambulant, intermittent and other workers, the self-employed, rural workers and those without any definite employers may
form labor organizations for their mutual aid and protection and other legitimate purposes except collective bargaining. (Emphasis supplied)
The provision in the CBA disqualifying probationary employees from voting cannot override the Constitutionally-protected right of
workers to self-organization, as well as the provisions of the Labor Code and its Implementing Rules on certification elections and
jurisprudence thereon.
A law is read into, and forms part of, a contract. Provisions in a contract are valid only if they are not contrary to law, morals, good customs, public
order or public policy.
II. As to whether HIMPHLU should be certified as the exclusive bargaining agent, the Court rules in the negative.
It is well-settled that under the so-called double majority rule, for there to be a valid certification election, majority of the bargaining unit
must have voted AND the winning union must have garnered majority of the valid votes cast.
Prescinding from the Courts ruling that all the probationary employees votes should be deemed valid votes while that of the supervisory employees
should be excluded, it follows that the number of valid votes cast would increase from 321 to 337. Under Art. 256 of the Labor Code, the union
obtaining the majority of the valid votes cast by the eligible voters shall be certified as the sole and exclusive bargaining agent of all the workers in
the appropriate bargaining unit. This majority is 50% + 1. Hence, 50% of 337 is 168.5 + 1 or at least 170.
HIMPHLU obtained 169 while petitioner received 151 votes. Clearly, HIMPHLU was not able to obtain a majority vote. The position of both the SOLE
and the appellate court that the opening of the 17 segregated ballots will not materially affect the outcome of the certification election as for, so they
contend, even if such member were all in favor of petitioner, still, HIMPHLU would win, is thus untenable.
It bears reiteration that the true importance of ascertaining the number of valid votes cast is for it to serve as basis for computing the required
majority, and not just to determine which union won the elections. The opening of the segregated but valid votes has thus become material.
To be sure, the conduct of a certification election has a two-fold objective: to determine the appropriate bargaining unit and to ascertain the majority
representation of the bargaining representative, if the employees desire to be represented at all by anyone. It is not simply the determination of who
between two or more contending unions won, but whether it effectively ascertains the will of the members of the bargaining unit as to whether they
want to be represented and which union they want to represent them.
Having declared that no choice in the certification election conducted obtained the required majority, it follows that a run-off election must
be held to determine which between HIMPHLU and petitioner should represent the rank-and-file employees.
PETITION GRANTED.
_____________
NOTES:
A run-off election refers to an election between the labor unions receiving the 2 highest number of votes in a certification or consent election with 3 or
more choices, where such a certified or consent election results in none of the 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 50% of the number of votes cast

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G.R. No.

July 31, 2009

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