Right to Self-Organization

Right to Self-Organization Reported By: Freneil I. Reyes

Topics • Classification of Labor Disputes • Certification Elections • Unfair Labor Practices • Collective Bargaining and Administration of Agreements • Grievance Machinery • Strike, Lockout

Concept of the Right to Self-Organization • It includes two rights: 1. The right to form , join or assist labor organizations, and 2. The right to engage in lawful concerted activities.

Continuation……. • The labor organization may be a union or association of employees, as mentioned in Article 212(g). • Its purposes may be collective bargaining or dealing with the employer. • No “person”-inside or outside of government, employer or non-employer, unionist or non-unionist – may abridged these rights. If abridge in the workplace, the abridgement is termed Unfair Labor Practices, loosely translated as anti-unionism.

What is unfair labor practices? • "Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations."Consequently, unfair labor practices are not only violations of the civil tights of both labor and management, but are also criminal offenses against the State, which shall be subject to prosecution and punishment (Art. 247, LC). As described, the concept of unfair labor practices (hereafter, ULP for short) is broader in scope than is commonly believed.

What is Collective Bargaining Agreement? • Collective bargaining may be defined as bargaining by a labor organization, in behalf of its members, with the employer regarding terms and conditions of employment. It denotes, in common usage as well as in legal terminology, negotiations looking toward a collective bargaining agreement. Collective bargaining is a right guaranteed by the Constitution (Art. XIII, Sec. 3 ) to enable workers to negotiate with the employer on the same level, and with more persuasiveness than if they were to bargain individually and independently for the improvement of their respective conditions.

Continuation…… • This right is complementary to the right of self -organization. The parties to collective bargaining are the labor organization certified as exclusive bargaining agent in behalf of the workers in the bargaining unit, and the employed It is intended to promote, as it were, a friendly dialogue between labor and management as a means of maintaining industrial peace.

LABOR DISPUTES Definition • “Labor Disputes” includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms an d conditions of employment, regardless or whether the disputants stand in the proximate relation of employer and employee. (Art. 212 [1].)

Tests of Criteria of “Labor Dispute” • A. Nature: dispute arises from employer-employee relationships, although disputants need not be proximately “employee” or “employer” of the other. • B. Subject matter: Dispute concerns (1) terms or conditions of employment; or (2) association or representation of persons in negotiating, fixing, maintaining, or changing terms or conditions employment.

Classification of Labor Disputes • A. Labor Standard disputes 1. Compensation 2. Benefits 3. Working conditions • B. Labor Relations Disputes: 1. Organizational Right Dispute/ULP 2. Representation Disputes 3. Bargaining disputes 4. Bargaining disputes 5. Contract Administration or Personnel Policy Disputes 5. Employment Tenure disputes

Remedies in Labor Disputes • A. Grievance Procedure • B. Conciliation • C. Mediation • D. Enforcement or compliance order • E. Certification of bargaining representatives • F. Arbitration • G. Assumption of jurisdiction • H. Certification to NLRC • I. Injunction • J. Judicial action • K. Appeal • L. Review by court • M. Compromise agreement

Certification Elections • Employers generally prefer to ask for certification election than to risk voluntary recognition. This is true even where the establishment has only one union. In such a case, certification election is still feasible, because there is a choice between that union or no union. In the case of government employees, there is a legal provision on voluntary recognition. This provision states that a duly registered employees" organization shall be accorded voluntary recognition upon a showing that no other employees" organization is registered or is seeking registration, based on records of the Bureau of Labor Relations, and that the said organization has the majority support of the rank-and-file employees in the organizational unit (Sec. 11, Ex. 0. No. 180).

Continuation…… • However, where there are two or more duly registered employees" organizations in the appropriate organizational unit, the Bureau shall, upon petition, order the conduct of a certification election and shall certify the winner as the exclusive representative of the rank-and-tile employees in the said organizational unit (Sec. 12, Id.).

PRIMACY OF CERTIFICATION ELECTION • Sound policy dictates that as much as possible, management is to maintain a strictly hands-off policy. For if it does not, it may lend itself to the legitimate suspicion that it is partial to one of the contending unions. As a rule, employers may not intervene in certification election, which is an exclusively employee proceeding. Employers have no legal personality to get involved in it except where the Contract Bar Rule applies. • The Contract Bar Rule is a rule that a valid and existing collective bargaining agreement is a bar to a petition for certification election. Hence an employer may successfully oppose a petition for certification election if it violates this Rule.

Exceptions to Contract Bar Rule • (a) if the petition is made within 60 days before the expiration of the CBA, known as the "freedom period“ • (b) if the CBA is defective or inadequate in substance, as where it does not fulfill the legal requirements of providing for a grievance machinery or voluntary arbitration; and • (c) if it has not fulfilled the formal requirements for registration with the Bureau or the Regional Office of the DOLE, which requirements are held to be mandatory in any of these exceptional cases, the Contract Bar Rule will not apply and the employer would have no ground to contest the certification election.

OTHER RULES BARRING CERTIFICATION ELECTIONS The Contract Bar Rule is not the only instance where petitions for certification election may be barred. There are other applicable rules whereby such petitions will not be entertained. To summarize, no certification election may be held in the following cases: • (a) During the existence of a collective bargaining agreement, except within the freedom period (the Contract Bar Rule); • (b) Within one year from the date of issuance of a final certification result (Bk. V, Sec. 3, OR); and • (c) Where a bargaining deadlock to "which an incumbent or certified bargaining agent is a party has been submitted to conciliation or arbitration, or has become the subject of a valid notice of strike or lockout (Id.). This is known as the Deadlock Bar Rule. Its principal purpose is to ensure stability in the relationship of workers and management

PETITIONS FOR CERTIFICATION ELECTION • The Labor Code gives the instances and requirements for petitions for certification election. • Generally, these are: in case where a representation issue exists in an organized establishment, and even in the absence of such an issue, in an unorganized establishment.

Petition for certification election in organized establishments • when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the proper Regional Office of DOLE within the 60-day period before the expiration of the CBA, the med-arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least 25 percent of all the employees in the bargaining unit. Where no petition for certification election is lifted at the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent .

Petition for certification election in organized establishments • In unorganized establishments where there is no certified bargaining agent, a certification election shall automatically be conducted by the med arbiter upon the filing of a petition by a legitimate labor organization. Thus, the requirements for a petition for certification election in an organized establishment are: • (a) it should be verified; • (b) filed within the freedom period; and • (c) with the written consent of at least 25 percent of all the employees in the bargaining unit.

Continuation…… • It has been held, however, that where the petition is supported by less than .20 percent of employees in the bargaining unit, the Bureau has the discretion whether or not to order certification election. The petitioning union in a certification election must be a legitimate organization in good standing. Hence, a local or chapter of a national union that has only a chapter certificate cannot file such a petition, because it is not a legitimate labor organization.. In unorganized establishments, the only requirement is that the verified petition be filed by a logjam ate labor organization. The petitioner must be a union, not employees.

PARTICIPANTS IN CERTIFICATION ELECTION • As a rule, all employees are entitled to vote in certification election regardless of the period or status of their employment , because the object of this exercise is to formalize a collective bargaining agreement which would cover all aspects of the employment relationship and bind all employees in the bargaining unit regardless of status. Employees who have been improperly laid off, who have a present un abandoned right to or expectation of re-employment, are still eligible to vote in certification elections. There are, however, exceptions to this rule, such as the following who are not qualified to participate;

Continuation…… • (a) Managerial employees, for they represent the employer This does not include supervisory employees, which have the right to organize their own unions and negotiate with the employer in collective bargaining.

Continuation…… • b) Workers as to whom there is no employment relationship in the establishment concerned, e.g. contractors and concessionaires" agents, security guards, etc. This is because certification election is premised on employer-employee relationship, without which there is no duty to bargain collectively, and there being no such duty, certification election would be pointless. In this connection, it may be pointed out that the med-arbiter has the authority and original and exclusive jurisdiction to determine the existence of employer-employee relationship between parties. His findings may only be reviewed and reversed by the Secretary of Labor who exercises appellate jurisdiction under Art. 259 of the Labor Code.

Continuation…… • (c) Employees of a cooperative who are also members of the same cannot vote in certification elections nor join or assist labor organizations for the purpose of collective bargaining, because an owner cannot bargain with himself nor with his co-owners. But this does not apply to employees of cooperatives who are not members or co-owners thereof.

PROCEDURE IN CERTIFICATION ELECTIONS • The basic procedural requirements for certification elections are that the elections be by secret ballot, that they be conducted by the Labor Relations Division of the Regional Office under rules and regulations established by the SOLE and that representatives of the contending unions have a right to attend the balloting as inspectors.

Continuation…… • Notices of the election shall be posted in two conspicuous places of die establishment at least five working days before the election containing the date of the election, "names of the contending parties, the description of the bargaining unit, and the list of eligible voters. • A representation officer shall oversee the conduct and security of the elections, and may rule on any on-the-spot question arising there from. • This officer shall also count and tabulate the votes cast in the presence of the representatives of the parties as soon as the polls close. • The ballots, tally sheet, and certified results, together with the minutes of the election, shall be sealed in an envelope and signed on the outside by this officer and by representatives of the contending parties.

Continuation…… • The med-arbiter, upon receipt of these results, and no protest having been filed, shall certify the winner (Book V , Rule5, OR). or a valid election, at least a majority of all eligible voters in the unit must have cast their votes. • 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. • 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 50 percent of the number of votes cast (Art. 256, LC,as am.).

POST- ELECTION • The winning union in certification election has the right to be certified as the sole and exclusive bargaining agent of all the workers in the unit for the purpose of collective bargaining. The losing union (s) shall continue to enjoy the rights of legitimate labor organizations, except the right to represent the employees in collective bargaining with the employer. Any party to certification election may appeal from the order on the results of the election as determined by the med-arbiter directly to the SOLE on the ground that the rules and regulations or parts thereof established by the Secretary for the conduct of the election have been violated. Such appeal shall be decided within 15 calendar days (Art. 259, LC, as am.).

Thank you For Listening…. 

Right to Self-Organization