CASE NO.

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
G.R. No. 181531 July 31, 2009

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 353

TOTAL VOTES CAST 346
NUWHRAIN-MPHC 151
HIMPHLU 169
NO UNION 1
SPOILED 3
SEGREGATED 22

In view of the significant number of segregated votes, contending unions, petitioner,

NUHWHRAIN-MPHC, and respondent Holiday Inn Manila Pavilion Hotel Labor Union
(HIMPHLU), referred the case back to Med-Arbiter to decide which among those votes
would be opened and tallied.

Eleven (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 (6) 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, especially
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 Gatbonton’s vote was tallied, and
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:

1. YES.

The inclusion of Gatbonton’s 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. Ferrer-Calleja 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.

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.

2. NO.

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 Court’s 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
becomes 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.

***** SIMPLIFIED FACTS:

In this case, a certification election was held among the rank-and-file employees of Holiday
Inn Manila Pavilion Hotel. The results showed 353 employees in the voters' list, with 346
votes cast. Two unions, NUWHRAIN-MPHC and HIMPHLU, were contending for
representation.

Due to the presence of segregated votes, both unions referred the case back to the Med-
Arbiter to determine which of these votes should be opened and tallied. The segregated
votes included those of dismissed employees, employees already holding supervisory
positions, and probationary employees, among others.

The Med-Arbiter decided to open 17 out of the 22 segregated votes, including those of
dismissed employees and supposed supervisory employees. The petitioner, NUWHRAIN-
MPHC, appealed to the Secretary of Labor and Employment (SOLE), arguing that the votes
of probationary employees should also be opened, especially since one probationary
employee's vote was counted. The petitioner also contended that HIMPHLU should not be
immediately certified as the bargaining agent, as the opening of the 17 segregated ballots
would affect the total valid votes.

However, the Secretary of Labor affirmed the Med-Arbiter's decision, stating that the
certification of HIMPHLU as the exclusive bargaining agent was proper. The SOLE
concluded that the segregation and opening of certain votes were done correctly in
determining the valid votes and the majority needed for certification.