FOITAF-ASSOCIATED ANGLO AMERICAN CHAPTER vs.
On the same date, however,
NORIEL, G.R No. L-41937, July 6, 1976
. an alleged retraction or revocation of signatures to the
FERNANDO, J:
An order of respondent Carmelo Noriel Director of the
Bureau of Labor Relations, 1 for the holding of a certification
election is led in this certiorari proceeding for its alleged
failure to comply with the thirty percent requirement of the
new Labor Code. 2 It is admitted by petitioner labor union
that there were enough signatures but it is contended that
there was a change of mind on the part of a number of the
employees involved resulting in the requirement of the law
not being met. There is thus, so it is submitted, a grave abuse
of discretion amounting to arbitrarinesi Respondent public
official as well as private respondent labor union were
required to comment. In such pleading submitted by Solicitor
General Estelito P. Mendoza 3 on behalf of the former,
characterized by a meticulous and detailed reference to the
background facts, there was an objective narration of what
did transpire It did reduce to the vanishing point whatever
plausibility there was there was in the petition. What clearly
emerged was that petitioner labor union is loathe to have its
former members transfer their allegiance to private
respondent union, a matter which could be even more
obvious if the certification election were held. There is thus
no justification for sustaining the stand taken by petitioner.
To do so would be to disregard previous authoritative
doctrines on the matter, involving the basic constitutional
right of freedom of association, 4 made even more
meaningful in labor matters by the statutory device of
certification election. That we are not disposed to do. We
dismiss the petition.
There was barely a mention of the relevant facts in the
petition, the effort being concentrated in the attempt to
make out a case of arbitrary and improvident exercise of
authority on the part of respondent Director. It is quite
gratifying, therefore, as was mentioned above, to have the
comment of respondent Director setting forth with accuracy
and particularly the events that led to the challenged order.
That it is impressed with accuracy is not just an assumption.
Petitioner was given a chance to refute the same after such
comment, along with that of private respondent, was
admitted as an answer. It failed to do so.
According to the comment of i respondent official: "In order
to afford this Honorable Court with a clear perspective of
what actually transpired summarized hereunder are the
antecedent and salient facts of the case. 1. On March 20,
1975, the Federation of Free Workers (Associated Anglo-
American Employees Chapter, hereinafter referred to as
FFW), filed a verified petition for certification election among
the employees and workers of the Anglo-American Tobacco
Corporation (company for brevity), alleging that more than
30% of its rank and file workers support the same. 2. On April
14, 1975, the company opposed the petition alleging that the
petitioning union did not have the support of at least 30% of
the more than 1,000 workers of the company. 3. At the
hearing of the case on April 21, 1975, the company alleged
that there are 941 rank and file workers under its employ.
Since respondent FFW had then already submitted 283
signatures, the Med-Arbiter ruled that FFW had complied
with the 30% written consent requirement On the same date,
Federacion Obrera de la Industria Tabaquera y Otros
Trabajadores de Filipinos (FOITAF for short) — Associated
Anglo-American Chapter, moved to intervene alleging legal
interest in the case and the latter was granted time to
substantiate its claim by way of employee's support. 4.
Subsequently, at the hearing on April 24, 1975, the list of the
rank and file employees of the company numbering 941,
based on the payroll as of March 1975, was submitted and it
was agreed at said hearing that after the petitioner therein
(FFW) had submitted its position paper, and the Intervenor
FOITAF its manifestation, the case will be considered
submitted for resolution ....
FOITAF filed a motion and manifestation calling attention to
petition coming from thirteen (13) employees attaching
thereto Annexes A, B, C, D, and E, the letters of said
retracting employees, all claims that they were forced to sign
.... It is worthy of note that the letters of retraction by the
thirteen (13) employees were not under oath and none of
them was presented during the hearings to confirm their
alleged retractions. 5. Thus, on April 30, 1975, the Med-
Arbiter assigned to the case, finding that FFW had submitted
283 signatures of the company's labor force of 941, thereby
complying with the 30% consent requirement, ordered the
certification election with the following contending unions: 1.
FFW Associated Anglo-American Employees Chapter), 2.
Federacion Obrera de la Industria Tabaquera y Otros
Trabajadores de Filipinos FOITAF and, 3. No union desired ....
6. On May 9, 1975, petitioner FOITAF filed a letter appeal
from the aforesaid order of the Med-Arbiter on the sole
ground that FFW failed to comply with the 30% requirement.
This was opposed by FFW contending that the alleged
retraction of the 13 employees can only be determined in a
secret balloting in a certification election 7. Meanwhile on
May 29, 1975, acting on a motion to stop the holding of a
certification election filed by FOITAF, the Bureau of Labor
Relations in an order of even date suspended the holding of a
certification election .... 8. During the pendency of the appeal,
the case was again set for further hearing on June 10, 1975,
whereat four (4) additional signatures supporting the petition
for certification election were presented by FFW and at the
same time the latter was permitted to submit its opposition
to the list of 941 employees submitted by the company. On
the other hand, FOITAF was allowed to submit its reply to
FFW's opposition after which the matter was considered
submitted for resolution .... 9. In an addendum, a
manifestation to petitioner's (FFW's) opposition to appeal
dated June 11, 1975, FFW prayed for the exclusion of 124
employees submitted the company's list of 941 employees on
the grounds that some have either resigned, with double
name entries, casual employees with less than six months of
service and still others are confidential employees or are part
of management. ... 10. FOITAF submitted its memorandum
dated July 2, 1975, reiterating that the petition be dismissed
for FFW's failure to meet the 30% requirement and alleging
that an additional number of 32 workers have retracted their
signatures to the petition for certification election. Still later,
on July 9, 1975, FOITAF again filed a motion to dismiss, this
time attaching merely an affidavit of its president, a certain
Timbungeo, to the effect that a total of 45 workers have
retracted their signatures. It is worthy of note that the
signatures of these alleged 45 retractors were not presented.
11. Meanwhile, in the subsequent hearings of the case, the
company was requested to submit the job descriptions or
other proofs relative to the duties of the 124 employees
sought to be excluded by FFW from the company's list of 941
but despite repeated request therefor, the company
submitted only the job descriptions of only 9 employees.
Likewise, FOITAF did not present proof as to the alleged
retraction of the 45 workers .... 12. On the basis of the
foregoing, therefore, the Bureau of Labor Relations, on
August 29, 1975, issued a resolution sustaining the previous
order of the Med-Arbiter for a certification election, the
dispositive part of which reads. "Premises considered, and in
order not to delay any further the exercise of the employee's
right to form a labor organization of their own choosing, the
appealed order is affirmed. The Labor Organization Division,
this Bureau, shall conduct the election and the necessary
exclusion and inclusion proceedings relative thereto.
Accordingly, the company is enjoined not to deal with any
labor organization until after the election has been conducted
and the results have been conclusively determined." ... 13. A
motion for reconsideration of the aforesaid resolution, which
was opposed by respondent FFW was filed by the petitioner
herein and on October 8, 1975, the Bureau of Labor Relations
denied the same. 5
The glaring weakness of the petition is thus fully exposed. AU
mentioned at the outset, it should be dismissed for lack of
merit.
1. Clearly, what is at stake is the constitutional right to
freedom of association on the part of employees. Petitioner
labor union was in the past apparently able to enlist the
allegiance of the working force in the Anglo-American
Tobacco Corporation. Thereafter, a number of such
individuals joined private respondent labor union. That is a
matter clearly left to their sole uncontrolled judgment. There
is this excerpt from Pan American World Airways, Inc. v. Pan
American Employees Association: 6 "There is both a
constitutional and statutory recognition that laborers have
the right to form unions to take care of their interests vis-a-
vis their employees. Their freedom to form organizations
would be rendered nugatory if they could not choose their
own leaders to speak on their behalf and to bargain for
them." 7 It cannot be otherwise, for the freedom to choose
which labor organization to join is an aspect of the
Constitutional mandate of protection to labor. 8 Prior to the
Industrial Peace Act, 9 there was a statute setting forth the
guidelines for the registration of labor unions. 10 , As implied
in Manila Hotel Co. v. Court of Industrial Relations, 11 it was
enacted pursuant to what is ordained in the Constitution.
Thus in Umali v. Lovina, 12 it was held that mandamus lies to
compel the registration of a labor organization. There is this
apt summary of what is signified in Philippine Land-Air-Sea
Labor Union v. Court of Industrial Relations, 13 "to allow a
labor union to organize itself and acquire a personality
distinct and separate from its members and to serve as an
instrumentality to conclude collective bargaining agreements
... " 14 It is no coin cadence that in the first decision of this
Court citing the Industrial Peace Act, 15 Pambujan United
Mine Workers v. Samar Mining Company, 16 the role of a
labor union as the agency for the expression of the collective
will affecting its members both present and prospective, was
stressed. That statute certainly was much more emphatic as
to the vital aspect of such a right as expressly set forth in the
policy of the law. 17 What is more, there is in such enactment
this categorical provision on the right of employees to self
organization: "Employees shall have the right to self-
organization and to form, join or assist labor organizations of
their own choosing for the purpose of collective bargaining
through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining
and other mutual aid or protection," 18 The new Labor
Code, 19 is equally explicit on the matter. Thus: "The State
shall assure the rights of workers to self-organization,
collective bargaining, security of tenure and just and humane
conditions of work." 20
2. It is thus of the very essence of the regime of industrial
democracy sought to be attained through the collective
bargaining process that there be no obstacle to the freedom
Identified with the exercise of the right to self-organization.
Labor is to be represented by a union that can express its
collective will. In the event, and this is usually the case, that
there is more than one such group fighting for that privilege,
a certification election must be conducted. That is the
teaching of a recent decision, under the new Labor
Code, United Employees Union of Gelmart Industries v.
Noriel. 21 There is this relevant excerpt: "The institution of
collective bargaining is, to recall Cox a prime manifestation of
industrial democracy at work. The two parties to the
relationship, labor and management, make their own rules by
coming to terms. That is to govern themselves in matters that
really count. As labor, however, is composed of a number of
individuals, it is indispensable that they be represented by a
labor organization of their choice. Thus may be discerned
how crucial is a certification election. So our decisions from
the earliest case of PLDT Employees Union v. PLDT Co. Free
Telephone Workers Union to the latest, Philippine
Communications Electronics & Electricity Workers' Federation
(PCWF) v. Court of Industrial Relations, have made
clear." 22 An even later pronouncement in Philippine
Association of Free Labor Unions v. Bureau of Labor
Relations 23 speaks similarly: "Petitioner thus appears to be
woefully lacking in awareness of the significance of a
certification election for the collective bargaining process. It is
the fairest and most effective way of determining which labor
organization can truly represent the working force. It is a
fundamental postulate that the will of the majority, if given
expression in an honest election with freedom on the part of
the voters to make their choice, is controlling. No better
device can assure the institution of industrial democracy with
the two parties to a business enterprise, management and
labor, establishing a regime of selfrule." 24
3. There can then be no legitimate objection to the holding of
a certification election not only in the light of the basic theory
of labor statutes from Commonwealth Act 213 to the present
Labor Code, but also in view of the factual finding that the
verified petition by private respondent labor union had the
support of more than thirty percent of the rank and file
employees. Such being the case, it becomes, in the language
of the new Labor Code, "mandatory for the Bureau to
conduct a certification election for the purpose of
determining the representative of the employees in the
appropriate bargaining unit and certify the winner as the
exclusive collective bargaining representative of all the
employees in the unit." 25 It would run counter to the law
then, with the duty thus imposed on respondent Director, to
ignore the demand that it be held. It would follow, therefore,
that no grave abuse of discretion, much leas arbitrariness,
could be imputed to the rejection of the plea of petitioner to
set aside the challenged order, there is persuasiveness,
likewise, to the submission of Solicitor General Mendoza in
the comment filed, that the thirteen employees who
allegedly retracted were not even present before the
medarbiter and that the alleged additional forty-five
employees who supposedly likewise changed their minds,
were also not called to testify to that effect, petitioner
satisfying itself with their being named in an affidavit
executed by its president. That would make, so it is plausibly
contended, such alleged retraction to be highly dubious in
character. There is this reinforcement to the contention of
respondent public official in this closing paragraph of such
comment: "Besides, the best forum for determining whether
there were indeed retractions from some of the laborers is in
the certification election, itself wherein the workers can
freely express their choice in a secret ballot. If, wherefore,
petitioner herein is confident that it commands the majority
of the workers in the collective bargaining unit, why then
does it vigorously oppose a certification election." 26
4. The lack of merit in the petition is equally obvious
considering that what asked of this Court is, in the final
analysis, to set aside a factual finding arrived at by
respondent Director after a careful consideration of all the
relevant matters pertinent to the issue. Again, that is contrary
to the constant holding of this Tribunal in a host of cases
starting from National Labor Union v. Dinglasan 27 to Adame
v. Court of Industrial Relations. 28
WHEREFORE, the petition is dismissed. This decision is
immediately executory so as to enable the holding forthwith
of the certification election. The restraining order issued on
November 26, 1975 is hereby lifted. No costs.
Barredo, Antonio, Aquino and Martin, JJ., concur.
Concepcion, Jr., J., is on leave.
Philippine Fruits and Vegetables Industries, Inc. vs. Torres,
211 SCRA 95, G.R. No. 92391 July 3, 1992
This petition for review on certiorari with prayer for the
issuance of a temporary restraining order and/or preliminary
injunction assails the following:
(1) The Resolution dated December 12, 1989 of public 12, 1988 and the election
respondent Secretary of Labor 1 affirming on appeal the was held today,
Order dated March 7, 1989 issued by Med-Arbiter Danilo T. December 16, 1988 is only
Basa, and certifying private respondent Trade Union of the four days prior to the
Philippines and Allied Services (or TUPAS) as the sole and scheduled certification
exclusive bargaining agent of all regular rank-and-file and election.
seasonal workers at Philippine Fruits and Vegetable
Industries, Inc. (or PFVII), petitioner herein; and By agreement of petitioner and TUPAS,
workers whose names were inadvertently
(2) The Order dated February 8, 1990 issued by public omitted in the list of qualified voters were
respondent Secretary of Labor 2 denying petitioner's Urgent allowed to vote, subject to challenge (p.
Motion for Reconsideration. 263, NLRC, Records). Thirty eight of them
voted on election day.
Petitioner PFVII contends the questioned resolution and
order are null and void as they are contrary to law and have Initial tally of the election results excluding
been issued with grave abuse of discretion, and having no the challenged votes showed the following:
other plain, speedy and adequate remedy in the ordinary
course of law, it filed with this Court the petition now at Total No. of the Votes 291
hand.
Yes votes 40
The facts of the case are well-stated in the Comment filed by No votes 38
the Solicitor General, and are thus reproduced hereunder, as Spoiled 7
follows: Challenged (Regular) 38
——
On October 13, 1988, Med-Arbiter Basa Total No. of Votes Cast
issued an Order granting the petition for 123
Certification election filed by the Trade
Union of the Philippines and Allied Services On January 6, 1989, Management and
(TUPAS). Said order directed the holding of TUPAS agreed to have the 36 challenged
a certification election among the regular votes of the regular rank-and-file
and seasonal workers of the Philippine employees opened and a canvass thereof
Fruits and Vegetables, Inc. (p. 42, NLRC, showed:
Records).
Yes votes 20
After a series of pre-election conferences, No votes 14
all issues relative to the conduct of the Spoiled 4
certification election were threshed out ——
except that which pertains to the voting Total 38
qualifications of the hundred ninety four
(194) workers enumerated in the lists of Added to the initial election results of
qualified voters submitted by TUPAS. December 16, 1988, the canvass of results
showed:
After a late submission by the parties of
their respective position papers, Med- Yes 60
Arbiter Basa issued an Order dated No 52
December 9, 1988 allowing 184 of the 194 Spoiled 11
questioned workers to vote, subject to ——
challenge, in the certification election to be Total 123
held on December 16, 1989. Copies of said
Order were furnished the parties (p. 118,
Based on the foregoing results, the yes
NLRC, Records) and on December 12, 1988
votes failed to obtain the majority of the
the notice of certification election was duly
votes cast in said certification election,
posted. One hundred sixty eight (168) of
hence, the necessity of opening the 168
the questioned workers actually voted on
challenged votes to determine the true will
election day.
of the employees.

In the scheduled certification election,

On January 20, 1989, petitioner filed a
petitioner objected to the proceeding,
position paper arguing against the opening
through a Manifestation (p. 262, NLRC,
of said votes mainly because said voters are
Records) filed with the Representation
not regular employees nor seasonal
Officer before the close of the election
workers for having allegedly rendered work
proceedings. Said Manifestation pertinently
for less than 180 days.
reads:
Trade Union of the Philippines and Allied
The posting of the list of
Services (TUPAS), on the other hand, argued
eligible voters authorized
that the employment status of said
to participate in the
employees has been resolved when Labor
certification election was
Arbiter Ricardo N. Martinez, in his Decision
short of the five (5) days
dated November 26, 1988 rendered in NLRC
provided by law
Case No. Sub-Rab-01-09-7-0087-88,
considering that it was
declared that said employees were illegally
posted only on December
dismissed.
 In an Order dated February 2, 1989 (pp.
278-280, NLRC, Records) Med-Arbiter Basa
ordered the opening of said 168 challenged
votes upon his observation that said
employees were illegally dismissed in
accordance with the foregoing Decision of
Labor Arbiter Martinez. As canvassed, the
results showed
Yes votes 165
No votes 0 supplied)
Spoiled 3
——
Total 168
On February 23, 1989, petitioner formally
filed a Protest (pp.
284-287, NLRC, Records) claiming that the
required five day posting of notice was not
allegedly complied with and that the list of
qualified voters so posted failed to include
fifty five regular workers agreed upon by
the parties as qualified to vote. The Protest
further alleged that voters who were
ineligible to vote were allowed to vote.
Med-Arbiter Basa, in his Order dated March
7, 1989, dismissed said Protest which Order
was affirmed on appeal in the Resolution
dated December 12, 1989 of then Secretary
of Labor, Franklin Drillon.
Petitioner's Motion for Reconsideration was
denied for lack of merit in public
respondent's Order dated February 28,
1990.
(pp. 84-88, Rollo)3
The instant petition has, for its Assignment of Errors, the
following:
(1) The Honorable Secretary of Labor and
Employment acted with grave abuse of
discretion amounting to lack of jurisdiction
and committed manifest error in upholding
the certification of TUPAS as the sole
bargaining agent mainly on an erroneous
ruling that the protest against the
canvassing of the votes cast by 168
dismissed workers was filed beyond the
reglementary period.
(2) The Honorable Secretary of Labor
committed an abuse of discretion in
completely disregarding the issue as to
whether or not non-regular seasonal
workers who have long been separated
from employment prior to the filing of the
petition for certification election would be
allowed to vote and participate in a
certification election. 4
The Court finds no merit in the petition.
For it is to be noted that the formal protest of petitioner PFVII
was filed beyond the reglementary period. A close reading of
Sections 3 and 4, Rule VI, Book V of the Implementing Rules
of the Labor Code, which read as follows:
Sec. 3. Representation officer may rule on
any-on-the-spot questions. — The
Representation officer may rule on any on-
the-spot question arising from the conduct
of the election. The interested party may
however, file a protest with the
representation officer before the close of
the proceedings.
Protests not so raised are deemed
waived. Such protest shall be contained in
the minutes of the proceedings. (Emphasis
Sec. 4. Protest to be decided in twenty (20)
working days. — Where the protest is
formalized before the med-arbiter with five
(5) days after the close of the election
proceedings, the med-arbiter shall decide
the same within twenty (20) working days
from the date of formalization. If not
formalized within the prescribed period, the
protest shall be deemed dropped. The
decision may be appealed to the Bureau in
the same manner and on the same grounds
as provided under Rule V. (Emphasis
supplied)
would readily yield, as a matter of procedure, the following
requirements in order that a protest filed thereunder would
prosper, to wit:
(1) The protest must be filed with the
representation officer and made of record
in the minutes of the proceedings before
the close of election proceedings, and
(2) The protest must be formalized before
the Med-Arbiter within five (5) days after
the close of the election proceedings.
The records before Us quite clearly disclose the fact that
petitioner, after filing a manifestation of protest on
December 16, 1988, election day, only formalized the same
on February 20, 1989, or more than two months after the
close of election proceedings (i.e., December 16, 1988). We
are not persuaded by petitioner's arguments that election
proceedings include not only casting of votes but necessarily
includes canvassing and appreciation of votes cast and
considering that the canvassing and appreciation of all the
votes cast were terminated only on February 16, 1989, it was
only then that the election proceedings are deemed closed,
and thus, when the formal protest was filed on February 20,
1989, the five-day period within which to file the formal
protest still subsisted and its protest was therefore
formalized within the reglementary period. 5
As explained correctly by the Solicitor General, the phrase
"close of election proceedings" as used in Sections 3 and 4 of
the pertinent Implementing Rules refers to that period from
the closing of the polls to the counting and tabulation of the
votes as it could not have been the intention of the
Implementing Rules to include in the term "close of the
election proceedings" the period for the final determination
of the challenged votes and the canvass thereof, as in the
case at bar which may take a very long period. 6 Thus, if a
protest can be formalized within five days after a final
determination and canvass of the challenged votes have been
made, it would result in an undue delay in the affirmation of
the employees' expressed choice of a bargaining
representative. 7
Petitioner would likewise bring into issue the fact that the
notice of certification election was posted only on December
12, 1988 or four days before the scheduled elections on
December 16, 1988, instead of the five-day period as
required under Section 1 of Rule VI, Book V of the
Implementing Rules. But it is not disputed that a substantial
number, or 291 of 322 qualified voters, of the employees
concerned were informed, thru the notices thus posted, of
the elections to be held on December 16, 1988, and that such
employees had in fact voted accordingly on election day.
Viewed thus in the light of the substantial participation in the
elections by voter-employees, and further in the light of the
all-too settled rule that in interpreting the Constitution's
protection to labor and social justice provisions and the labor
laws and rules and regulations implementing the
constitutional mandate, the Supreme Court adopts the liberal
approach which favors the exercise of labor rights, 8 We find
the lack of one day in the posting of notices insignificant, and
hence, not a compelling reason at all in nullifying the
elections.

As regards the second assignment of error, the public

respondent Secretary of Labor did not completely disregard
the issue as to the voting rights of the alleged separated
employees for precisely, he affirmed on appeal the findings of
the Med-Arbiter when he ruled

The election results indicate that TUPAS

obtained majority of the valid votes cast in
the election — 60 plus 165, or a total of 225
votes out of a possible total of 291.

WHEREFORE, premises considered, the

appeal is hereby denied and the Med-
Arbiter's order dated 7 March 1989
affirmed. Petitioner TUPAS is hereby
certified as the sole and exclusive
bargaining agent of all regular rank-and-file
and seasonal workers at Philippine Fruits
and Vegetable Industries, Inc. 9 (p. 26, Rollo)

At any rate, it is now well-settled that employees who have

been improperly laid off but who have a present,
unabandoned right to or expectation of re-employment, are
eligible to vote in certification elections. 10 Thus, and to
repeat, if the dismissal is under question, as in the case now
at bar whereby a case of illegal dismissal and/or unfair labor
practice was filed, the employees concerned could still qualify
to vote in the elections. 11

And finally, the Court would wish to stress once more the rule
which it has consistently pronounced in many earlier cases
that a certification election is the sole concern of the workers
and the employer is regarded as nothing more than a
bystander with no right to interfere at all in the election. The
only exception here is where the employer has to file a
petition for certification election pursuant to Article 258 of
the Labor Code because it is requested to bargain collectively.
Thus, upon the score alone of the "Bystander Rule", the
instant petition would have been dismissed outright.

WHEREFORE, the petition filed by Philippine Fruits and

Vegetable Industries, Inc. (PFVII) in hereby DISMISSED for lack
of merit.

SO ORDERED