NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary, July 31, 2009 Case Digest

NUWHRAIN-Manila Pavilion Hotel Chapter v.
Secretary, July 31, 2009
Facts:
On June 16, 2006, a certification election was conducted among the rank-and-file employees of
respondent Holiday Inn Manila Pavilion Hotel (the Hotel). The results are as follows: NUWHRAIN-
MPHC – 151; HIMPHLU – 169; Segregated - 22
The segregated ballots include 11 that belongs to employees that were dismissed but with its legality
still pending before the CA; 5 from probationary employees; and 6 from supervisors that were
previously promoted. The existing CBA at the time states that probationary employees cannot vote.
The National Union of Workers in Hotels, Restaurants and Allied Industries - Manila Pavilion Hotel
Chapter (NUWHRAIN-MPHC) referred the case back to the Med Arbiter and contends on which of
the segregated votes may be counted. The Med Arbiter 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 appealed to the Secretary of Labor and Employment (SOLE) that the votes of the
probationary employees should have been opened considering that probationary employee
Gatbonton's vote was tallied. Petitioner also averred that Holiday Inn Manila Pavillion Hotel Labor
Union (HIMPHLU) should not be certified yet because with the opening of the 17 segregated votes,
the number of valid votes cast would increase 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.
The SOLE affirmed the decision of the Med Arbiter based on the following grounds:
 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 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
The CA affirmed the ruling of the SOLE based on the following argument:
 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.
 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
Issue:
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
Ruling:
1st Issue: The Court ruled in the affirmative. all rank and file employees in the appropriate bargaining
unit, whether probationary or permanent are entitled to vote. 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."
Legal Basis:
Art 255 of the Labor Code: “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.”
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: “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…”
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
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.
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. specifically section 5 and section 13. 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
or denying the appeal, becomes final and executory.
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-Arbiter's 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.
2nd Issue: 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. 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.
Legal Basis:
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.

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