Title
Amendment to Labor Code Rules on Union Elections
Law
Blr Department Order No. 40-i-15
Decision Date
Sep 7, 2015
The BLR Department Order No. 40-I-15 amends the implementing rules of the Labor Code to clarify definitions related to election processes for labor organizations, establish procedures for sole and exclusive bargaining agent certification, and ensure the integrity of certification elections.
labor code
administrative law
implementing rules

Legal basis and prior framework

  • The amendments are issued pursuant to Article 5 of the Labor Code, as amended.
  • The Order amends Book V of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 40, series of 2003.
  • Department Order No. 40, series of 2003 is the primary prior framework being amended.
  • D.O. 40-F-03 is referenced as having last amended Rule VIII, Section 1, which is further amended by this Order.

Policy and operational purpose

  • The amendments govern the procedures and mechanics of union certification elections and SEBA certification requests, including election rules that promote the secrecy and sanctity of the ballot.
  • The Order expressly establishes an election framework that treats certain ballots and election events (including re-run elections) with defined election-officer processes and timelines.
  • The Order strengthens restrictions on employer interference during certification elections by imposing a strict by-stander principle.

Definitions: abstention, re-run, spoiled ballot

  • “Abstention” refers to a blank or unfilled ballot validly cast by an eligible voter.
  • Abstention is not considered a negative vote, but it is treated as a valid vote for purposes of determining a valid election.
  • “Re-run election” refers to an election conducted to break a tie between contending unions, including between “No Union” and one of the unions.
  • Re-run election also covers an election conducted after a failure of election declared by the election officer and/or affirmed by the Mediator-Arbiter.
  • “Spoiled ballot” refers to a ballot that is torn, defaced, or contains markings which can lead another to clearly identify the voter who cast such vote.

SEBA certification request: filing, requirements, effects

  • 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 (Rule VII, Section 1).
  • The request must indicate:
    • 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/non-existence of other labor organization/CBA.
  • The request must attach the certificate of registration duly certified by the President of the requesting union or the certificate of creation of chartered local duly certified by the President of the federation of the local (Rule VII, Section 2).
  • Within one (1) day from submission, the Regional Director must:
    • determine whether the request is compliant with the requirements and whether the bargaining unit is organized; and
    • request a copy of the payroll for SEBA certification pursuant to Rule VII, Section 4.
  • If the request is deficient, the Regional Director must require compliance within ten (10) days from notice, and failure to comply within that period deems the request withdrawn.
  • If the establishment is unorganized with only one (1) legitimate labor organization, the Regional Director must call a conference within five (5) work days for:
    • names of employees in the covered bargaining unit who support certification, where such employees comprise at least majority of the bargaining unit; and
    • certification under oath by the president of the requesting union or local that submitted documents are true and correct based on personal knowledge.
  • Documents presented during the conference are presumed true and correct unless contested under oath by any member of the bargaining unit during the validation conference.
  • The employer (or its representative) is not deemed a party-in-interest and acts only as a by-stander to the certification process.
  • If the requesting union or local fails to complete SEBA certification requirements during the conference, the request is referred to the election officer for an election under Rule IX.
  • If requirements are complete, the Regional Director issues during the conference a SEBA certification granting the union or local the rights and privileges of an exclusive bargaining agent for all employees in the covered bargaining unit.
  • The SEBA certification must be posted for fifteen (15) consecutive days in at least two (2) conspicuous places in the establishment or covered bargaining unit.
  • Once issued, the certification grants the certified union or local all rights and privileges of an exclusive bargaining agent of all employees in the covered bargaining unit.
  • The SEBA certification bars the filing of a petition for certification election by any labor organization for one (1) year from the date of issuance.
  • After the one (1) year period expires, any legitimate labor organization may file a petition for certification election in the same bargaining unit unless a collective bargaining agreement between the employer and the certified labor organization was executed and registered with the Regional Office under Rule XVII.
  • If the establishment is unorganized with more than one (1) legitimate labor organization, the Regional Director refers the matter to the election officer for a certification election under Rule IX.
  • If the establishment is organized, the Regional Director refers the matter to the Mediator-Arbiter to determine whether a certification election should be conducted under Rules VIII and IX.

Certification election: petition rules and consolidation

  • Any legitimate labor organization may file a petition for certification election, including a national union or federation that has issued a charter certificate to its local/chapter or the local/chapter itself (Rule VIII, Section 1).
  • A national union or federation filing for its local/chapter is not required to disclose the names of the local/chapter’s officers and members, but must attach the charter certificate it issued to the local/chapter.
  • When requested to bargain collectively in a bargaining unit where there is no registered collective bargaining agreement, an employer may file a petition for certification election with the Regional Office.
  • The employer is not a party entitled to oppose the petition; employer participation is limited to:
    • being notified or informed of petitions of that nature; and
    • submitting the list of employees during the pre-election conference if the Mediator-Arbiter acts favorably on the petition.
  • Manifestations of facts that aid expeditious resolution—such as existence of a contract-bar, one year bar, or deadlock bar—may be considered.
  • The contract-bar rule applies when:
    • there exists an unexpired registered CBA; or
    • there is no challenge on the representation status of the incumbent union during the freedom period.
  • A petition is filed with the Regional Office that issued the petitioning union’s Certificate of Registration or Certificate of Creation of chartered local (Rule VIII, Section 2).
  • The petitioner may file a petition and supporting documents online at its option.
  • The petition is 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, they are automatically consolidated with the Mediator-Arbiter who first acquired jurisdiction.
  • Where petitions are filed in different Regional Offices, the Regional Office where the first petition was filed excludes the others, and the later Regional Office must endorse the petition to the former for consolidation.
  • The Regional Director or authorized DOLE personnel and/or the petitioner must ensure posting of the notice of petition for certification election.

Certification election conduct: posting, voters, ballot secrecy

  • The election framework strictly observes the employer as by-stander principle throughout certification elections, subject to Rule VIII, Section 1, Paragraph 3.
  • The employer must not harass, intimidate, threaten, or coerce employees before, during, and after elections (Rule IX, Section 1).
  • All employees who are members of the appropriate bargaining unit three (3) months prior to the filing of the petition/request are eligible to vote.
  • An employee dismissed from work who contested the legality of the dismissal in a forum of appropriate jurisdiction at the time the order for certification election is issued is eligible unless the dismissal is declared valid by final judgment before the election.
  • If there is disagreement over the voters’ list or eligibility, all contested voters are allowed to vote.
  • Votes of contested voters must be segregated and sealed in individual envelopes under the rules on segregated voting.
  • Notice of election must be posted by the Election Officer and/or authorized DOLE personnel at least ten (10) days before the election date in two (2) most conspicuous places in company premises.
  • The election notice must contain:
    • the date, time and venue/s of election (preferably within the establishment);
    • the names of all contending unions; and
    • the description of the bargaining unit and the list of eligible and challenged voters.
  • Posting of the list of employees comprising the bargaining unit must be done by DOLE personnel.
  • The posting requirements, including information in the notice and duration of posting, cannot be waived by contending unions or the employer.
  • The Election Officer, with authorized representatives of contending unions, must inspect the polling place, ballot boxes, and polling booths before voting starts.
  • No device that could record or identify the voter or otherwise undermine ballot secrecy and sanctity is allowed within election premises, except devices brought in by the Election Officer.
  • Any other device found within the premises must be confiscated by the Election Officer and returned to its owner after the certification election.
  • To vote, the voter must place a cross (x) or check (/) mark in the square opposite the chosen union or “No Union” if the voter does not want representation by any union.
  • If a voter inadvertently spoils a ballot, the voter returns it to the Election Officer, who destroys it and issues another ballot.
  • Any unintentionally omitted bargaining-unit member in the master list of voters may vote only if both parties agree; otherwise, the person is still allowed to vote but the ballot is segregated.
  • Any party-in-interest may file a protest based on election conduct or mechanics.
  • Protests must be recorded in the election minutes and protests not raised immediately after the last ballot cast are deemed waived.
  • A general reservation to file a protest is prohibited, and the protesting party must specify the protest grounds.
  • The protest must be formalized with the Mediator-Arbiter with specific grounds, arguments, and evidence within five (5) days after the close of election proceedings.
  • If not recorded in the minutes and formalized within the prescribed period, the protest is deemed dropped.
  • The union that obtains a majority of the valid votes cast is certified as the sole and exclusive bargaining agent of all employees in the appropriate bargaining unit within five (5) days from the election day, provided no protest is recorded in the minutes.
  • When the winning choice is a local chapter without a certificate of creation of chartered local, the local chapter must submit its DOLE-issued certificate of creation within five (5) days from the conclusion of the election.
  • The Mediator-Arbiter must release the order or decision personally to the parties within ten (10) days from the last hearing, and the copy must be furnished to the employer.
  • When certification, consent, or run-off election results in a tie between the two (2) choices, the election officer must immediately notify the parties of a re-run election.
  • The election officer must cause posting of the notice of re-run election within five (5) days from certification/consent/run-off certification.
  • The re-run election must be conducted within ten (10) days after the posting of notice.
  • The option receiving the highest votes cast during the re-run election is declared the winner and is certified accordingly.

Union and related disputes coverage; supersession; separability

  • Inter/intra-union disputes include disputes involving the validity/invalidity of the SEBA certification.
  • The Order supersedes all other rules, regulations, issuances, circulars, and administrative orders inconsistent with it.
  • If any part or provision is held unconstitutional or invalid, the remaining parts and provisions continue in full force and effect.

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