G.R. No.

181531
DECISION
 
CARPIO MORALES, J.:
National Union of Workers in Hotels, Restaurants and Allied Industries
Manila Pavilion Hotel Chapter (NUWHRAIN-MPHC), herein petitioner, seeks the
reversal of the Court of Appeals November 8, 2007 Decision [1] and of the Secretary
of Labor and Employments January 25, 2008 Resolution[2] in OS-A-9-52-05 which
affirmed the Med-Arbiters Resolutions dated January 22, 2007[3] and March 22,
2007.[4]
 
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 Pavillion
Hotel Labor Union (HIMPHLU), referred the case back to Med-Arbiter Ma.
Simonette Calabocal 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 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.
 
By Order of August 22, 2006, 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.
 
By the assailed Resolution of January 22, 2007, the Secretary of Labor and
Employment (SOLE), through then Acting Secretary Luzviminda Padilla, affirmed
the Med-Arbiters Order. It held that pursuant to Section 5, Rule IX of the Omnibus
Rules Implementing the Labor Code on exclusion and inclusion of voters in a
certification election, the probationary employees cannot vote, as at the time the
Med-Arbiter issued on August 9, 2005 the Order granting the petition for the
conduct of the certification election, the six probationary employees were not yet
hired, hence, they could not vote.
 
The SOLE further held that, with respect to the votes cast by the 11
dismissed employees, they could be considered since their dismissal was still
pending appeal.
 
As to the votes cast by the six alleged supervisory employees, the SOLE
held that their votes should be counted since their promotion took effect months
after the issuance of the above-said August 9, 2005 Order of the Med-Arbiter,
hence, they were still considered as rank-and-file.
 
 Respecting Gatbontons vote, the SOLE ruled that the same could be the
basis to include the votes of the other probationary employees, as the records show
that during the pre-election conferences, there was no disagreement as to his
inclusion in the voters list, and neither was it timely challenged when he voted on
election day, hence, the Election Officer could not then segregate his vote.
 
The SOLE further ruled that even if the 17 votes of the dismissed and
supervisory employees were to be counted and presumed to be in favor of
petitioner, still, the same would not suffice to overturn the 169 votes garnered by
HIMPHLU.
 
In fine, the SOLE concluded that the certification of HIMPHLU as the
exclusive bargaining agent was proper.
 
Petitioners motion for reconsideration having been denied by the SOLE by
Resolution of March 22, 2007, it appealed to the Court of Appeals.
 
By the assailed Decision promulgated on November 8, 2007, the appellate
court affirmed the ruling of the SOLE. It held that, contrary to petitioners assertion,
the ruling in Airtime Specialist, Inc. v. Ferrer Calleja[5] stating that in a
certification election, all rank-and-file employees in the appropriate bargaining
unit, whether probationary or permanent, are entitled to vote, is inapplicable to the
case at bar. For, the appellate court continued, the six probationary employees were
not yet employed by the Hotel at the time the August 9, 2005 Order granting the
certification election was issued. It thus held that Airtime Specialist applies only to
situations wherein the probationary employees were already employed as of the
date of filing of the petition for certification election.
 
Respecting Gatbontons vote, the appellate court upheld the SOLEs finding that
since it was not properly challenged, its inclusion could no longer be questioned,
nor could it be made the basis to include the votes of the six probationary
employees.
 
The appellate court brushed aside petitioners contention that the opening of the 17
segregated votes would materially affect the results of the election as there would
be the likelihood of a run-off election in the event none of the contending unions
receive a majority of the valid votes cast. It held that the majority contemplated in
deciding which of the unions in a certification election is the winner refers to the
majority of valid votes cast, not the simple majority of votes cast, hence, the SOLE
was correct in ruling that even if the 17 votes were in favor of petitioner, it would
still be insufficient to overturn the results of the certification election.
 
Petitioners motion for reconsideration having been denied by Resolution of
January 25, 2008, the present recourse was filed.
 
Petitioners contentions may be summarized as follows:
 
1.           Inclusion of Jose Gatbontons vote but excluding the vote of the six other
probationary employees violated the principle of equal protection and is
not in accord with the ruling in Airtime Specialists, Inc. v. Ferrer-Calleja;
2.           The time of reckoning for purposes of determining when the probationary
employees can be allowed to vote is not August 9, 2005 the date of
issuance by Med-Arbiter Calabocal of the Order granting the conduct of
certification elections, but March 10, 2006 the date the SOLE Order
affirmed the Med-Arbiters Order.
 
3.           Even if the votes of the six probationary employees were included, still,
HIMPHLU could not be considered as having obtained a majority of the
valid votes cast as the opening of the 17 ballots would increase the number
of valid votes from 321 to 338, hence, for HIMPHLU to be certified as the
exclusive bargaining agent, it should have garnered at least 170, not 169,
votes.
 
Petitioner justifies its not challenging Gatbontons vote because it was
precisely its position that probationary employees should be allowed to vote. It
thus avers that justice and equity dictate that since Gatbontons vote was counted,
then the votes of the 6 other probationary employees should likewise be included
in the tally.
 
Petitioner goes on to posit that the word order in Section 5, Rule 9 of
Department Order No. 40-03 reading [A]ll employees who are members of the
appropriate bargaining unit sought to be represented by the petitioner at the time of
the issuance of the order granting the conduct of certification election shall be
allowed to vote refers to an order which has already become final and executory, in
this case the March 10, 2002 Order of the SOLE.
 
Petitioner thus concludes that if March 10, 2006 is the reckoning date for the
determination of the eligibility of workers, then all the segregated votes cast by the
probationary employees should be opened and counted, they having already been
working at the Hotel on such date.
 
Respecting the certification of HIMPHLU as the exclusive bargaining agent,
petitioner argues that the same was not proper for if the 17 votes would be counted
as valid, then the total number of votes cast would have been 338, not 321, hence,
the majority would be 170; as such, the votes garnered by HIMPHLU is one vote
short of the majority for it to be certified as the exclusive bargaining agent.
 
The relevant issues for resolution then are first, whether employees on
probationary status at the time of the certification elections should be allowed to
vote, and second, whether HIMPHLU was able to obtain the required majority for
it to be certified as the exclusive bargaining agent.
 
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. 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)
 
 
Rule II, Sec. 2 of Department Order No. 40-03, series of 2003, which
amended Rule XI of the Omnibus Rules Implementing the Labor Code, provides:
 
Rule II
 
Section 2. Who may join labor unions and workers' associations. -
All persons employed in commercial, industrial and agricultural
enterprises, including employees of government owned or controlled
corporations without original charters established under the Corporation
Code, as well as employees of religious, charitable, medical or
educational institutions whether operating for profit or not, shall have the
right to self-organization and to form, join or assist labor unions for
purposes of collective bargaining: provided, however, that supervisory
employees shall not be eligible for membership in a labor union of the
rank-and-file employees but may form, join or assist separate labor
unions of their own. Managerial employees shall not be eligible to form,
join or assist any labor unions for purposes of collective bargaining.
Alien employees with valid working permits issued by the Department
may exercise the right to self-organization and join or assist labor unions
for purposes of collective bargaining if they are nationals of a country
which grants the same or similar rights to Filipino workers, as certified
by the Department of Foreign Affairs.
 
For purposes of this section, 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.[6]
 
Rule XI, Sec. 5 of D.O. 40-03, on which the SOLE and the appellate court
rely to support their position that probationary employees hired after the issuance
of the Order granting the petition for the conduct of certification election must be
excluded, should not be read in isolation and must be harmonized with the other
provisions of D.O. Rule XI, Sec. 5 of D.O. 40-03, viz:
 
Rule XI
xxxx
Section 5. Qualification of voters; inclusion-exclusion. - All employees
who are members of the appropriate bargaining unit sought to be
represented by the petitioner at the time of the issuance of the order
granting the conduct of a certification election shall be eligible to
vote. An employee who has been dismissed from work but has contested
the legality of the dismissal in a forum of appropriate jurisdiction at the
time of the issuance of the order for the conduct of a certification
election shall be considered a qualified voter, unless his/her dismissal
was declared valid in a final judgment at the time of the conduct of the
certification election. (Emphasis supplied)
 
xxxx
Section 13. Order/Decision on the petition. - Within ten (10) days from
the date of the last hearing, the Med-Arbiter shall issue a formal order
granting the petition or a decision denying the same. In organized
establishments, however, no order or decision shall be issued by the
Med-Arbiter during the freedom period.
 
 The order granting the conduct of a certification election shall state
the following:
 
(a) the name of the employer or establishment;
 
(b) the description of the bargaining unit;
 
(c) a statement that none of the grounds for dismissal enumerated in the
succeeding paragraph exists;
 
(d) the names of contending labor unions which shall appear as follows:
petitioner union/s in the order in which their petitions were filed,
forced intervenor, and no union; and
 
(e) a directive upon the employer and the contending union(s) to
submit within ten (10) days from receipt of the order, the
certified list of employees in the bargaining unit, or where
necessary, the payrolls covering the members of the bargaining unit
for the last three (3) months prior to the issuance of the
order. (Emphasis supplied)
xxxx
 
Section 21. Decision of the Secretary. - The Secretary shall have fifteen
(15) days from receipt of the entire records of the petition within which
to decide the appeal. The filing of the memorandum of appeal from
the order or decision of the Med-Arbiter stays the holding of any
certification election.
 
The decision of the Secretary shall become final and executory after
ten (10) days from receipt thereof by the parties. No motion for
reconsideration of the decision shall be entertained. (Emphasis supplied)
 
 
In light of the immediately-quoted provisions, and prescinding from the
principle that all employees are, from the first day of their employment, eligible for
membership in a labor organization, it is evident that
the period of reckoning in determining who shall be included in the list of eligible
voters is, in cases where a timely appeal has been filed from the Order of the Med-
Arbiter, the date when the Order of the Secretary of Labor and Employment,
whether affirming ordenying the appeal, becomes final and executory.
  
The filing of an appeal to the SOLE from the Med-Arbiters Order stays its
execution, in accordance with Sec. 21, and rationally, the Med-Arbiter cannot
direct the employer to furnish him/her with the list of eligible voters pending the
resolution of the appeal.
 
During the pendency of the appeal, the employer may hire additional
employees. To exclude the employees hired after the issuance of the Med-Arbiters
Order but before the appeal has been resolved would violate the guarantee that
every employee has the right to be part of a labor organization from the first day of
their service.
 
In the present case, records show that the probationary employees, including
Gatbonton, were included in the list of employees in the bargaining unit submitted
by the Hotel on May 25, 2006 in compliance with the directive of the Med-
Arbiter after the appeal and subsequent motion for reconsideration have been
denied by the SOLE, rendering the Med-Arbiters August 22, 2005 Order final and
executory 10 days after the March 22, 2007 Resolution (denying the motion for
reconsideration of the January 22 Order denying the appeal), and rightly
so. Because, for purposes of self-organization, those employees are, in light of the
discussion above, deemed eligible to vote.
 
A certification election is the process of determining the sole and exclusive
bargaining agent of the employees in an appropriate bargaining unit for purposes
of collective bargaining. Collective bargaining, refers to the negotiated contract
between a legitimate labor organization and the employer concerning wages, hours
of work and all other terms and conditions of employment in a bargaining unit.[7]
 
The significance of an employees right to vote in a certification election
cannot thus be overemphasized. For he has considerable interest in the
determination of who shall represent him in negotiating the terms and conditions of
his employment.
 
Even if the Implementing Rules gives the SOLE 20 days to decide the appeal from
the Order of the Med-Arbiter, experience shows that it sometimes takes months to
be resolved. To rule then that only those employees hired as of the date of the
issuance of the Med-Arbiters Order are qualified to vote would effectively
disenfranchise employees hired during the pendency of the appeal. More
importantly, reckoning the date of the issuance of the Med-Arbiters Order as the
cut-off date would render inutile the remedy of appeal to the SOLE.
 
But while the Court rules that the votes of all the probationary employees
should be included, under the particular circumstances of this case and the period
of time which it took for the appeal to be decided, the votes of the six supervisory
employees must be excluded because at the time the certification elections was
conducted, they had ceased to be part of the rank and file, their promotion having
taken effect two months before the election.
 
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.
 
A run-off election refers to an election between the labor unions receiving
the two (2) highest number of votes in a certification or consent election with three
(3) or more choices, where such a certified or consent election results in none of
the three (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 fifty
percent (50%) of the number of votes cast. [8] With 346 votes cast, 337 of which are
now deemed valid and HIMPHLU having only garnered 169 and petitioner having
obtained 151 and the choice NO UNION receiving 1 vote, then the holding of a
run-off election between HIMPHLU and petitioner is in order.
 
WHEREFORE, the petition is GRANTED. The Decision dated November
8, 2007 and Resolution dated January 25, 2008 of the Court of Appeals affirming
the Resolutions dated January 22, 2007 and March 22, 2007, respectively, of the
Secretary of Labor and Employment in OS-A-9-52-05
are ANNULLED and SETASIDE.