Yokohama Tire Philippines, Inc. v. Yokohama Employees Union

Certification and Consent Election — Eligible Voters

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Case DigestWeek 5 - The Right to Self-Organization

Yokohama Tire Philippines, Inc. v. Yokohama Employees Union

G.R. No. 159553 · December 10, 2007 · Second Division

Certification and Consent Election — Eligible Voters

Petitioner: Yokohama Tire Philippines, Inc.Respondent: Yokohama Employees Union

Gist

At a certification election with only the union and "No Union" on the ballot, Yokohama challenged 78 votes cast by employees it had dismissed for serious misconduct and abandonment; the union challenged 68 votes by newly regularized employees and 5 by supervisor-trainees. The Supreme Court held the dismissed employees' votes properly counted: the rule in force allowed a dismissed employee to vote so long as his case contesting the dismissal was still pending, and the successor rule says the same — a dismissed employee is a qualified voter "unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election."

Core Doctrine

A dismissed employee remains a qualified voter in a certification election while his challenge to the dismissal is pending. Section 2, Rule XII of the rules implementing Book V "clearly, unequivocally and unambiguously allows dismissed employees to vote during the certification election if the case they filed contesting their dismissal is still pending at the time of the election," and the successor provision — Section 5, Rule IX of D.O. No. 40-03 — makes the point explicit: such an employee "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."

Note: The workbook spells the parties "Yokohoma"; the published caption is Yokohama Tire Philippines, Inc. v. Yokohama Employees Union. The Court decided only the third assigned error — the eligibility of the dismissed employees — and expressly declined to reach the other two as moot, so this case is authority on eligible voters and not on the exclusion of the 68 newly regularized employees or on the sufficiency of a handwritten protest, both of which were resolved below and left undisturbed. On numbering: Article 212(f), relied on by the Court of Appeals, is now Article 219(f) under DOLE Department Advisory No. 01, s. 2015. Note also the two rule-sets in play: Section 2, Rule XII of the Book V rules as amended by D.O. No. 9 governed the 23 November 2001 election, while Section 5, Rule IX of D.O. No. 40-03 is the current provision and is cited only for confirmation.

Facts

On October 7, 1999 the Yokohama Employees Union petitioned for a certification election among the rank and file of Yokohama Tire Philippines, Inc. The Med-Arbiter dismissed it; on appeal the Secretary ordered an election with two choices — the Union and "No Union."
A pre-election conference was held on July 12, 2001, at which the voters' list was submitted. That list is what later excludes the 68 newly regularized employees, whose names were not on it.
On June 27, 2001, employees dismissed by Yokohama filed cases contesting their dismissals. Pending five months before the election — the fact that decides the case.
On November 23, 2001 the election was held: Union 131, No Union 117, spoiled 2 — 250 counted — with 151 of the 401 total ballots challenged and segregated. Yokohama challenged 78 votes cast by employees it had dismissed for serious misconduct and abandonment; the Union challenged 68 by newly regularized rank-and-file employees and 5 by alleged supervisor-trainees.
Yokohama formalized its protest; the Union submitted only a handwritten manifestation during the election. The asymmetry becomes the second assigned error, and is never resolved.
On January 21, 2002 the Med-Arbiter suspended appreciation of the votes of "the sixty-five (65) dismissed employees who contested their dismissal before the NLRC … until the final disposition of their complaint," and ordered the 68 appreciated.
On May 22, 2002 the DOLE Acting Secretary reversed both: the dismissed employees' votes "shall be appreciated," and the 68 "shall be excluded."
On April 9, 2003 the Court of Appeals affirmed in toto, holding the 78 entitled to vote under Article 212(f) and Section 2, Rule XII; disallowing the 68 as "not included in the voters' list"; noting that "Yokohama's insistence on their inclusion lends suspicion that it wanted to create a company union"; ruling that "Yokohama had no right to intervene"; and holding the handwritten manifestation "substantial compliance."
On February 28, 2003 the Labor Arbiter decided the illegal dismissal cases and the NLRC resolved the appeal only on August 29, 2003 — nearly two years after the election. On election day there was no final judgment on any dismissal. Decided December 10, 2007.

Issue

Were the votes of the 78 dismissed employees properly appreciated — that is, does Section 2, Rule XII qualify as a voter an employee dismissed for just cause on grounds unrelated to the election, so long as his case contesting the dismissal was still pending when the election was held?

Secondary issue. Whether the 68 votes of newly regularized employees, omitted from the voters' list settled at the pre-election conference, should have been appreciated.

Ancillary issue. Whether the Union's handwritten manifestation sufficed as a protest.

Ruling

YES, properly appreciated. Section 2, Rule XII, "the rule in force during the November 23, 2001 certification election[,] clearly, unequivocally and unambiguously allows dismissed employees to vote during the certification election if the case they filed contesting their dismissal is still pending at the time of the election." Their cases "were filed on June 27, 2001 and the appeal … was resolved by the NLRC only on August 29, 2003." "Even the new rule has explicitly stated that without a final judgment declaring the legality of dismissal, dismissed employees are eligible or qualified voters."

Secondary and ancillary issues: not resolved, being moot. "The 68 votes … even if counted in favor of 'No Union,' will not materially alter the result. There would still be 208 votes in favor of respondent and 189 votes in favor of 'No Union.'" The Court added that "the certification election is already a fait accompli."

"WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated April 9, 2003 of the Court of Appeals in CA-G.R. SP No. 74273 and the Resolution dated August 15, 2003 are AFFIRMED. The temporary restraining order issued on September 15, 2003 is hereby DISSOLVED. No pronouncement as to costs. SO ORDERED."

Ratio

The Court took the third assigned error first — "[w]e shall first resolve the last assigned issue: Was it proper to appreciate the votes of the dismissed employees?" — because it alone could affect the outcome.
It rested on the text of the rule then in force, which "clearly, unequivocally and unambiguously allows dismissed employees to vote … if the case they filed contesting their dismissal is still pending at the time of the election."
The condition was satisfied on the dates: filed June 27, 2001, resolved by the NLRC only August 29, 2003 — the election falling squarely between.
The Court reinforced the reading by pointing to the successor provision, Section 5, Rule IX of D.O. No. 40-03: a dismissed employee who "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."
Yokohama's attempt to distinguish dismissals for causes "unrelated to the certification election" therefore failed for want of any textual foothold — neither rule turns on the ground of dismissal, only on whether it is being contested and whether a final judgment has upheld it.
On that footing the Court found "no reversible error" in ordering the votes appreciated.
The remaining errors were disposed of on mootness, the arithmetic leaving the result unchanged.
The Court closed with a practical observation about completed elections: "the certification election is already a fait accompli, and clearly petitioner's rank-and-file employees had chosen respondent as their bargaining representative." The TRO was dissolved.

Doctrine

Dismissed employees vote. "All employees who are members of the appropriate bargaining unit sought to be represented … shall be qualified to vote," and "[a] dismissed employee whose dismissal is being contested in a pending case shall be allowed to vote in the election." The rule so provides "clearly, unequivocally and unambiguously," and the ground of the dismissal is irrelevant — it is not confined to dismissals connected with the election or with union activity. Under the current rule, an employee who "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" — so "without a final judgment declaring the legality of dismissal, dismissed employees are eligible or qualified voters." Contested voters vote, their ballots segregated and sealed pending resolution. And an issue that cannot "materially alter the result" of a completed election will not be resolved, the election being "already a fait accompli."

Limits. The eligibility rule has two conditions, both objective: a pending contest, and the absence of a final judgment upholding the dismissal. An employee who never challenged his dismissal, or whose dismissal has been finally sustained, is not a qualified voter — the rule protects a claim still open, not every former worker. Note carefully what this case does not decide. The exclusion of the 68 for absence from the voters' list, the observation that insisting on their inclusion "lends suspicion that it wanted to create a company union," the ruling that Yokohama "had no right to intervene," and the holding that a handwritten manifestation was substantial compliance are all findings of the Court of Appeals left undisturbed but expressly not reviewed as moot. They may be persuasive; they are not holdings of this Court. For the protest requirements themselves see National Federation of Labor v. Secretary of Labor. Renumbering: Article 212(f) is now Article 219(f). Caption: the workbook spells the parties "Yokohoma"; the published caption is Yokohama.

Full Digest — Recitation Format

Gist

Yokohama Employees Union petitioned for certification among Yokohama Tire Philippines' rank and file, and after the DOLE Secretary ordered an election with the Union and "No Union" as the only choices, the balloting of 23 November 2001 produced 131 for the Union and 117 for No Union, with 2 spoiled — and 151 of the 401 total ballots challenged and segregated. Yokohama challenged 78 votes cast by employees it had dismissed for serious misconduct and abandonment; the Union challenged 68 cast by newly regularized rank-and-file employees and 5 by alleged supervisor-trainees. The Med-Arbiter suspended appreciation of 65 dismissed employees' votes and counted the 68; the DOLE Acting Secretary reversed both, counting the dismissed employees' votes and excluding the 68; and the Court of Appeals affirmed. The Supreme Court denied the petition. Section 2, Rule XII "clearly, unequivocally and unambiguously allows dismissed employees to vote... if the case they filed contesting their dismissal is still pending at the time of the election," and the successor rule says the same unless the dismissal "was declared valid in a final judgment." The remaining issues were moot: even crediting the 68 to "No Union" left 208 against 189.

Facts

On October 7, 1999, respondent Yokohama Employees Union filed a petition for certification election among the rank-and-file employees of petitioner Yokohama Tire Philippines, Inc.
The Med-Arbiter dismissed the petition; on appeal the Secretary of Labor and Employment ordered an election with two choices — "Yokohama Employees' Union" and "No Union."
A pre-election conference was held on July 12, 2001, at which the voters' list was submitted. That list is what later excludes the 68 newly regularized employees, whose names were not on it.
On June 27, 2001, employees dismissed by Yokohama filed cases contesting their dismissals. The cases were therefore pending five months before the election — the fact that decides the case.
On November 23, 2001, the election was held. The tally: Yokohama Employees Union 131, No Union 117, spoiled 2 — a total of 250 — with 78 votes challenged by Yokohama, 73 challenged by the Union, or 151 total challenged votes, and 401 total votes cast.
Yokohama challenged the 78 votes cast by dismissed employees. The Union challenged 68 votes cast by "newly regularized" rank-and-file employees and 5 more by "alleged supervisor-trainees."
Yokohama formalized its protest, raising the eligibility of the 78 dismissed employees; the Union submitted only a handwritten manifestation during the election. The asymmetry becomes the second assigned error, and is never resolved.
On January 21, 2002, the Med-Arbiter ruled that appreciation of the votes of "the sixty-five (65) dismissed employees who contested their dismissal before the NLRC shall be suspended until the final disposition of their complaint for illegal dismissal," and that the votes of the 68 "newly-regularized" employees "shall be appreciated in the final tabulation."
On May 22, 2002, the DOLE Acting Secretary reversed both rulings: "[t]he votes of dismissed employees who contested their dismissal before the NLRC shall be appreciated in the final tabulation," and "[t]he votes of the sixty-eight (68) newly regularized rank-and-file employees shall be excluded."
On April 9, 2003, the Court of Appeals in CA-G.R. SP No. 74273 affirmed in toto, holding that the 78 employees contesting their dismissal were entitled to vote under Article 212(f) and Section 2, Rule XII; disallowing the 68 because "they were not included in the voters' list submitted during the July 12, 2001 pre-election conference"; noting that "Yokohama's insistence on their inclusion lends suspicion that it wanted to create a company union"; ruling that "Yokohama had no right to intervene in the certification election"; and holding the Union's "handwritten manifestation during the election was substantial compliance with the rule on protest." Reconsideration was denied August 15, 2003.
On February 28, 2003, the Labor Arbiter decided the illegal dismissal cases, and the NLRC resolved the appeal only on August 29, 2003 — nearly two years after the election. On election day there was no final judgment on any of the dismissals.
On September 15, 2003, this Court issued a temporary restraining order against implementation of the DOLE rulings.
On April 25, 2003, the Med-Arbiter denied Yokohama's motion to suspend proceedings and certified that the Union obtained a majority of 208 votes while "No Union" obtained 121; the DOLE Secretary's Office affirmed on July 29, 2003 and the resolution became final on September 29, 2003.
On October 16, 2003, Yokohama filed a manifestation asserting that the July 29, 2003 resolution "is still not final and executory considering the timely filing of a motion for its reconsideration"; on October 21, 2003 it filed an "erratum" deleting that allegation as included "through inadvertence and clerical mishap." The case was decided December 10, 2007.

Arguments of the Parties

A. Petitioner Yokohama Tire Philippines, Inc. Its principal contention was that "the Court of Appeals erred in ruling that the votes of the dismissed employees should be appreciated," positing that "employees who have quit or have been dismissed for just cause prior to the date of the certification election are excluded from participating in the certification election." It stressed the ground of the dismissals — "serious misconduct and abandonment of work, which are causes unrelated to the certification election" — the implication being that the protective rule is meant for employees dismissed because of union activity. It also assigned as error the disallowance of the 68 newly regularized rank-and-file votes, and the holding that the Union's manifestation on election day sufficed as a formalized protest.

B. Respondent Yokohama Employees Union. The Union answered that Section 2, Rule XII of the rules implementing Book V "allows a dismissed employee to vote in the certification election if the case contesting the dismissal is still pending" — a condition satisfied here, the complaints having been filed on 27 June 2001 and remaining unresolved through the election and for nearly two years afterwards.

C. Common Ground. The tally was not disputed — 131 for the Union, 117 for No Union, 2 spoiled, 151 challenged, 401 cast — nor that the dismissal cases were filed on 27 June 2001 and were pending on election day, nor that the 68 newly regularized employees were absent from the voters' list settled at the 12 July 2001 pre-election conference, nor that the Union's protest took the form of a handwritten manifestation.

Issue

A. Main Issue (Topic/Subtopic-Centered). Were the votes of the 78 dismissed employees properly appreciated — that is, does Section 2, Rule XII qualify as a voter an employee dismissed for just cause on grounds unrelated to the election, so long as his case contesting the dismissal was still pending when the election was held?

B. Secondary Issues. Whether the 68 votes of newly regularized rank-and-file employees, omitted from the voters' list settled at the pre-election conference, should have been appreciated.

C. Ancillary/Incidental Issues. Whether the Union's handwritten manifestation during the election was sufficient compliance with the rule on formalization of protests.

Ruling

Main Issue: YES, properly appreciated. Section 2, Rule XII, "the rule in force during the November 23, 2001 certification election[,] clearly, unequivocally and unambiguously allows dismissed employees to vote during the certification election if the case they filed contesting their dismissal is still pending at the time of the election." Their cases "were filed on June 27, 2001 and the appeal of the Labor Arbiter's February 28, 2003 Decision was resolved by the NLRC only on August 29, 2003." "Even the new rule has explicitly stated that without a final judgment declaring the legality of dismissal, dismissed employees are eligible or qualified voters." Secondary and Ancillary Issues: not resolved, being moot. "The 68 votes... even if counted in favor of 'No Union,' will not materially alter the result. There would still be 208 votes in favor of respondent and 189 votes in favor of 'No Union.'" The Court added that "the certification election is already a fait accompli, and clearly petitioner's rank-and-file employees had chosen respondent as their bargaining representative."

Dispositive portion (verbatim):

"WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated April 9, 2003 of the Court of Appeals in CA-G.R. SP No. 74273 and the Resolution dated August 15, 2003 are AFFIRMED. The temporary restraining order issued on September 15, 2003 is hereby DISSOLVED. No pronouncement as to costs.

SO ORDERED."

Ratio

The Court took the third assigned error first — "[w]e shall first resolve the last assigned issue: Was it proper to appreciate the votes of the dismissed employees?" — because it alone could affect the outcome.
It rested on the text of the rule then in force: Section 2, Rule XII "clearly, unequivocally and unambiguously allows dismissed employees to vote during the certification election if the case they filed contesting their dismissal is still pending at the time of the election."
The condition was satisfied on the dates. The dismissed employees' "votes... were challenged by petitioner although their cases were still pending at the time of the certification election on November 23, 2001. These cases were filed on June 27, 2001 and the appeal of the Labor Arbiter's February 28, 2003 Decision was resolved by the NLRC only on August 29, 2003."
The Court reinforced the reading by pointing to the successor provision: "[e]ven the new rule has explicitly stated that without a final judgment declaring the legality of dismissal, dismissed employees are eligible or qualified voters," quoting Section 5, Rule IX of D.O. No. 40-03 — a dismissed employee who "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."
Yokohama's attempt to distinguish dismissals for causes "unrelated to the certification election" therefore failed for want of any textual foothold; neither rule turns on the ground of dismissal, only on whether it is being contested and whether a final judgment has upheld it.
On that footing the Court found "no reversible error on the part of the DOLE Acting Secretary and the Court of Appeals in ordering the appreciation of the votes of the dismissed employees."
The remaining errors were disposed of on mootness: "[t]he 68 votes of the newly regularized rank-and-file employees, even if counted in favor of 'No Union,' will not materially alter the result. There would still be 208 votes in favor of respondent and 189 votes in favor of 'No Union.'"
The Court closed with a practical observation about completed elections: "[w]e also note that the certification election is already a fait accompli, and clearly petitioner's rank-and-file employees had chosen respondent as their bargaining representative." The temporary restraining order was accordingly dissolved.

Doctrine

B. Doctrines/Rules/Principles. "All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the certification or consent election shall be qualified to vote," and "[a] dismissed employee whose dismissal is being contested in a pending case shall be allowed to vote in the election." The rule "clearly, unequivocally and unambiguously" so provides, and the ground of the dismissal is irrelevant — it is not confined to dismissals connected with the election or with union activity. Under the current rule, an employee who "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" — so "without a final judgment declaring the legality of dismissal, dismissed employees are eligible or qualified voters." Where voters' eligibility is disputed, "all contested voters shall be allowed to vote," their ballots segregated and sealed pending resolution. And an issue that cannot "materially alter the result" of a completed election will not be resolved, the election being "already a fait accompli."

C. Distinctions/Limitations/Qualifications. The eligibility rule has two conditions, both objective: a pending contest, and the absence of a final judgment upholding the dismissal. An employee who never challenged his dismissal, or whose dismissal has been finally sustained, is not a qualified voter — the rule protects a claim still open, not every former worker. Note also what this case does not decide. The exclusion of the 68 newly regularized employees for absence from the voters' list, the observation that insisting on their inclusion "lends suspicion that it wanted to create a company union," the ruling that Yokohama "had no right to intervene," and the holding that a handwritten manifestation was substantial compliance with the protest rule are all findings of the Court of Appeals left undisturbed but expressly not reviewed as moot. They may be persuasive; they are not holdings of this Court. For the protest requirements themselves see National Federation of Labor v. Secretary of Labor at item 26.

D. Topic/Subtopic Integration (Mandatory). Classified DIRECT. The syllabus assigns this case at item 20 under item 7.c for eligible voters, and it is the clearest Philippine authority on the single most litigated eligibility question — whether a dismissed employee may vote. Read it beside St. James School of Quezon City, which applies the first sentence of the same Section 2 to fix the quorum base on the bargaining unit; beside Belyca Corporation v. Ferrer-Calleja, which reaches the same result for strikers and dismissed employees on the ground that "until a decision, final in character, has been issued declaring the strike illegal and the mass dismissal or retrenchment valid, the strikers cannot be denied participation"; and beside National Union of Workers in Hotels-Manila Pavilion v. SOLE at item 21, which asks the parallel question about supervisory employees inadvertently included in a rank-and-file unit. The through-line of all four is that eligibility is fixed by the unit and by objective status, not by the employer's characterisation of the voter.

Separate Opinions

None. The Decision, penned by Justice Quisumbing, was concurred in by Justices Carpio, Carpio Morales, Tinga, and Velasco, Jr., with Justice Quisumbing attesting as Division Chairperson and Chief Justice Puno certifying under Section 13, Article VIII of the Constitution.

Cited Laws & Provisions

Every statute, rule, and issuance the decision turns on — the text as written, and the work it does in this case.

Implementing Rules

Section 2, Rule XII, Book V, Implementing Rules (D.O. No. 9)

Qualification of voters; inclusion-exclusion proceedings

Rules implementing Book V of the Labor Code, as amended by Department Order No. 9, effective 21 June 1997 — the rule in force at the 23 November 2001 election

Section 2. Qualification of voters; inclusion-exclusion proceedings. — All employees who are members of the appropriate bargaining unit sought to be represented by the petitioner at the time of the certification or consent election shall be qualified to vote. A dismissed employee whose dismissal is being contested in a pending case shall be allowed to vote in the election.

In case of disagreement over the voters' list or over the eligibility of voters, all contested voters shall be allowed to vote. However, their votes shall be segregated and sealed in individual envelopes in accordance with Section 9 of these Rules.

Why it is cited here

The Court's own description of this provision is the strongest thing it says about it: it "clearly, unequivocally and unambiguously allows dismissed employees to vote during the certification election if the case they filed contesting their dismissal is still pending at the time of the election." Three adverbs, because Yokohama's argument required reading a qualification into a sentence that has none.

The employer's position was that "employees who have quit or have been dismissed for just cause prior to the date of the certification election are excluded," and it pressed the character of the dismissals — "serious misconduct and abandonment of work, which are causes unrelated to the certification election." The implicit distinction is between employees dismissed because of union activity, who plainly must be allowed to vote, and employees dismissed for ordinary misconduct, who arguably should not.

The rule draws no such line. Its only condition is that the dismissal be "being contested in a pending case." The reason is structural rather than sympathetic: whether a dismissal was for just cause is precisely what the pending case will decide, so to exclude the voter on the ground that the dismissal was justified is to assume the answer. And the assumption would be made by the party with the strongest interest in it — the employer, who is otherwise a bystander in the election.

Consider what the contrary rule would license. An employer facing an election it expects to lose dismisses the union's supporters, characterises the dismissals as misconduct, and thereby removes them from the electorate; by the time the illegal dismissal cases are won, the election is long over and the result stands. Compare Belyca Corporation v. Ferrer-Calleja: "the duty of the employer to bargain collectively is nullified if the purpose of the dismissal of the union members is to defeat the union in the consent requirement for certification election."

The segregation rule in the second paragraph is what makes the whole scheme workable. Contested voters vote; their ballots go into sealed envelopes; eligibility is resolved afterwards. Here 151 of 401 ballots were challenged and set aside, and the count that mattered came later.

DOLE Issuance

Section 5, Rule IX, D.O. No. 40-03

Qualification of voters; inclusion-exclusion — the current rule

Department Order No. 40-03, Series of 2003

Section 5. Qualification of voters; inclusion-exclusion. — . . . 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.

D.O. No. 40-03 post-dates the 23 November 2001 election in this case and did not govern it; the Court cites it to show that "[e]ven the new rule has explicitly stated" the same thing. This is the provision the Week 5 syllabus refers to as DOLE D.O. No. 40-03, Rules VII and VIII, as amended.

Why it is cited here

The current rule states the same principle with the timing spelled out, and the added precision is worth learning because it answers questions the older rule left open.

When must the contest exist? "[A]t the time of the issuance of the order for the conduct of a certification election." So the relevant moment is when the election is ordered, not when it is held — an employee dismissed after that order, or one who files his complaint later, is in a different position.

What ends the eligibility? Only a final judgment upholding the dismissal, and only one existing "at the time of the conduct of the certification election." A Labor Arbiter's decision under appeal is not a final judgment; neither is an NLRC ruling still open to review.

Run this case through the timeline and the point becomes concrete. The illegal dismissal cases were filed 27 June 2001; the election was held 23 November 2001; the Labor Arbiter decided on 28 February 2003; and the NLRC resolved the appeal only on 29 August 2003 — nearly two years after the balloting. On election day there was no final judgment of any kind, so the dismissed employees were qualified voters under either formulation.

The drafting choice is deliberate: eligibility is fixed by a bright line — the existence or absence of a final judgment — rather than by an assessment of how strong the employer's cause looks. Bright lines are what an election officer can administer on the day.

Labor Code

Article 212(f), Labor Code

Definitions — "Employee"

Labor Code (P.D. No. 442, as amended)

ART. 212. Definitions . . .

(f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the employees of a particular employer, unless this Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.

Renumbered Article 219(f) by DOLE Department Advisory No. 01, series of 2015. The Court of Appeals relied on this definition together with Section 2, Rule XII; the Supreme Court decided on the rule and did not separately construe the article.

Why it is cited here

This definition supplies the statutory footing for what the implementing rule provides, and it is worth noticing how far its last sentence reaches.

An "employee" is not confined to a person currently on the payroll. The term "shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice, if he has not obtained any other substantially equivalent and regular employment." The status survives the severance of the relationship, and it survives it for as long as the worker has not found comparable work elsewhere.

The rationale is the same one that runs through the rest of the Code's representation provisions. Rights that could be extinguished by the unilateral act of the other party would be no rights at all. If dismissal ended employee status for all purposes, an employer could shrink a bargaining unit at will, and every unfair labor practice would carry its own cure.

Two limits are on the face of the text and should not be overlooked. The cessation must be connected to a current labor dispute or to an unfair labor practice — not every ex-employee is included. And the individual must not have obtained substantially equivalent and regular employment, the point being to protect someone still bound to this workplace, not someone who has moved on.

Note that the Court of Appeals rested on this article as well as on the rule; the Supreme Court found the rule sufficient and did not reach the article, so its scope here is persuasive background rather than a holding.

Jurisprudence

Issues left unresolved as moot

The 68 newly regularized voters and the handwritten protest

Court of Appeals Decision in CA-G.R. SP No. 74273 (9 April 2003), as summarised in this decision

Finally, we need not resolve the other issues for being moot. The 68 votes of the newly regularized rank-and-file employees, even if counted in favor of "No Union," will not materially alter the result. There would still be 208 votes in favor of respondent and 189 votes in favor of "No Union."

Why it is cited here

Two questions that would otherwise be squarely within this week's syllabus were not decided, and it is important to know that before citing the case for them.

The 68 newly regularized employees. The Court of Appeals had "disallowed the votes of the 68 newly regularized employees since they were not included in the voters' list submitted during the July 12, 2001 pre-election conference," and added that "Yokohama's insistence on their inclusion lends suspicion that it wanted to create a company union," and that "Yokohama had no right to intervene in the certification election." The Supreme Court left all of that undisturbed but decided none of it, because the arithmetic made it irrelevant: 208 for the union against 121 plus 68, or 189, for "No Union."

The union's protest. The union had challenged 68 votes with only "a handwritten manifestation during the election," where Yokohama had formalized its protest properly. The appellate court "ruled that the union's handwritten manifestation during the election was substantial compliance with the rule on protest." That too was left unreviewed. On the formalization requirements themselves, see National Federation of Labor v. Secretary of Labor at item 26 of this week's list, where Sections 3 and 4 of Rule VI are set out.

The Court's closing observation is a practical principle in its own right: "the certification election is already a fait accompli, and clearly petitioner's rank-and-file employees had chosen respondent as their bargaining representative." Where a challenge cannot change the outcome, the courts will not unmake a completed election to decide it — the same materiality filter that appears in Section 13, Rule XII ("even if one was raised, the resolution of the same will not materially change the result") in St. James School of Quezon City.

A final detail worth noting for what it shows about candour in pleading: Yokohama filed a manifestation on 16 October 2003 asserting that a DOLE resolution "is still not final and executory," then filed an "erratum" five days later deleting that allegation as included "through inadvertence and clerical mishap" — having itself attached the entry of judgment showing the resolution had become final on 29 September 2003.

Cited laws & provisions

Section 2, Rule XII, Book V, Implementing Rules (D.O. No. 9)

Implementing Rules

Qualification of voters; inclusion-exclusion proceedings

Rules implementing Book V of the Labor Code, as amended by Department Order No. 9, effective 21 June 1997 — the rule in force at the 23 November 2001 election

Why it is cited here

Full entry below ↓

Section 5, Rule IX, D.O. No. 40-03

DOLE Issuance

Qualification of voters; inclusion-exclusion — the current rule

Department Order No. 40-03, Series of 2003

Why it is cited here

The current rule states the same principle with the timing spelled out, and the added precision is worth learning because it answers questions the older rule left open.

Full entry below ↓

Article 212(f), Labor Code

Labor Code

Definitions — "Employee"

Labor Code (P.D. No. 442, as amended)

ART. 212. Definitions . . .

Why it is cited here

This definition supplies the statutory footing for what the implementing rule provides, and it is worth noticing how far its last sentence reaches.

Full entry below ↓

Issues left unresolved as moot

Jurisprudence

The 68 newly regularized voters and the handwritten protest

Court of Appeals Decision in CA-G.R. SP No. 74273 (9 April 2003), as summarised in this decision

Why it is cited here

Two questions that would otherwise be squarely within this week's syllabus were not decided, and it is important to know that before citing the case for them.

Full entry below ↓

Facts

On October 7, 1999 the Yokohama Employees Union petitioned for a certification election among the rank and file of Yokohama Tire Philippines, Inc. The Med-Arbiter dismissed it; on appeal the Secretary ordered an election with two choices — the Union and "No Union."
A pre-election conference was held on July 12, 2001, at which the voters' list was submitted. That list is what later excludes the 68 newly regularized employees, whose names were not on it.
On June 27, 2001, employees dismissed by Yokohama filed cases contesting their dismissals. Pending five months before the election — the fact that decides the case.
On November 23, 2001 the election was held: Union 131, No Union 117, spoiled 2 — 250 counted — with 151 of the 401 total ballots challenged and segregated. Yokohama challenged 78 votes cast by employees it had dismissed for serious misconduct and abandonment; the Union challenged 68 by newly regularized rank-and-file employees and 5 by alleged supervisor-trainees.
Yokohama formalized its protest; the Union submitted only a handwritten manifestation during the election. The asymmetry becomes the second assigned error, and is never resolved.
On January 21, 2002 the Med-Arbiter suspended appreciation of the votes of "the sixty-five (65) dismissed employees who contested their dismissal before the NLRC … until the final disposition of their complaint," and ordered the 68 appreciated.
On May 22, 2002 the DOLE Acting Secretary reversed both: the dismissed employees' votes "shall be appreciated," and the 68 "shall be excluded."
On April 9, 2003 the Court of Appeals affirmed in toto, holding the 78 entitled to vote under Article 212(f) and Section 2, Rule XII; disallowing the 68 as "not included in the voters' list"; noting that "Yokohama's insistence on their inclusion lends suspicion that it wanted to create a company union"; ruling that "Yokohama had no right to intervene"; and holding the handwritten manifestation "substantial compliance."
On February 28, 2003 the Labor Arbiter decided the illegal dismissal cases and the NLRC resolved the appeal only on August 29, 2003 — nearly two years after the election. On election day there was no final judgment on any dismissal. Decided December 10, 2007.

Issue

Secondary issue. Whether the 68 votes of newly regularized employees, omitted from the voters' list settled at the pre-election conference, should have been appreciated.

Ancillary issue. Whether the Union's handwritten manifestation sufficed as a protest.

Ruling

"WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated April 9, 2003 of the Court of Appeals in CA-G.R. SP No. 74273 and the Resolution dated August 15, 2003 are AFFIRMED. The temporary restraining order issued on September 15, 2003 is hereby DISSOLVED. No pronouncement as to costs. SO ORDERED."

Ratio

The Court took the third assigned error first — "[w]e shall first resolve the last assigned issue: Was it proper to appreciate the votes of the dismissed employees?" — because it alone could affect the outcome.
It rested on the text of the rule then in force, which "clearly, unequivocally and unambiguously allows dismissed employees to vote … if the case they filed contesting their dismissal is still pending at the time of the election."
The condition was satisfied on the dates: filed June 27, 2001, resolved by the NLRC only August 29, 2003 — the election falling squarely between.
The Court reinforced the reading by pointing to the successor provision, Section 5, Rule IX of D.O. No. 40-03: a dismissed employee who "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."
Yokohama's attempt to distinguish dismissals for causes "unrelated to the certification election" therefore failed for want of any textual foothold — neither rule turns on the ground of dismissal, only on whether it is being contested and whether a final judgment has upheld it.
On that footing the Court found "no reversible error" in ordering the votes appreciated.
The remaining errors were disposed of on mootness, the arithmetic leaving the result unchanged.
The Court closed with a practical observation about completed elections: "the certification election is already a fait accompli, and clearly petitioner's rank-and-file employees had chosen respondent as their bargaining representative." The TRO was dissolved.

Doctrine

Full Digest — Recitation Format

Gist

Facts

On October 7, 1999, respondent Yokohama Employees Union filed a petition for certification election among the rank-and-file employees of petitioner Yokohama Tire Philippines, Inc.
The Med-Arbiter dismissed the petition; on appeal the Secretary of Labor and Employment ordered an election with two choices — "Yokohama Employees' Union" and "No Union."
A pre-election conference was held on July 12, 2001, at which the voters' list was submitted. That list is what later excludes the 68 newly regularized employees, whose names were not on it.
On June 27, 2001, employees dismissed by Yokohama filed cases contesting their dismissals. The cases were therefore pending five months before the election — the fact that decides the case.
On November 23, 2001, the election was held. The tally: Yokohama Employees Union 131, No Union 117, spoiled 2 — a total of 250 — with 78 votes challenged by Yokohama, 73 challenged by the Union, or 151 total challenged votes, and 401 total votes cast.
Yokohama challenged the 78 votes cast by dismissed employees. The Union challenged 68 votes cast by "newly regularized" rank-and-file employees and 5 more by "alleged supervisor-trainees."
Yokohama formalized its protest, raising the eligibility of the 78 dismissed employees; the Union submitted only a handwritten manifestation during the election. The asymmetry becomes the second assigned error, and is never resolved.
On January 21, 2002, the Med-Arbiter ruled that appreciation of the votes of "the sixty-five (65) dismissed employees who contested their dismissal before the NLRC shall be suspended until the final disposition of their complaint for illegal dismissal," and that the votes of the 68 "newly-regularized" employees "shall be appreciated in the final tabulation."
On May 22, 2002, the DOLE Acting Secretary reversed both rulings: "[t]he votes of dismissed employees who contested their dismissal before the NLRC shall be appreciated in the final tabulation," and "[t]he votes of the sixty-eight (68) newly regularized rank-and-file employees shall be excluded."
On April 9, 2003, the Court of Appeals in CA-G.R. SP No. 74273 affirmed in toto, holding that the 78 employees contesting their dismissal were entitled to vote under Article 212(f) and Section 2, Rule XII; disallowing the 68 because "they were not included in the voters' list submitted during the July 12, 2001 pre-election conference"; noting that "Yokohama's insistence on their inclusion lends suspicion that it wanted to create a company union"; ruling that "Yokohama had no right to intervene in the certification election"; and holding the Union's "handwritten manifestation during the election was substantial compliance with the rule on protest." Reconsideration was denied August 15, 2003.
On February 28, 2003, the Labor Arbiter decided the illegal dismissal cases, and the NLRC resolved the appeal only on August 29, 2003 — nearly two years after the election. On election day there was no final judgment on any of the dismissals.
On September 15, 2003, this Court issued a temporary restraining order against implementation of the DOLE rulings.
On April 25, 2003, the Med-Arbiter denied Yokohama's motion to suspend proceedings and certified that the Union obtained a majority of 208 votes while "No Union" obtained 121; the DOLE Secretary's Office affirmed on July 29, 2003 and the resolution became final on September 29, 2003.
On October 16, 2003, Yokohama filed a manifestation asserting that the July 29, 2003 resolution "is still not final and executory considering the timely filing of a motion for its reconsideration"; on October 21, 2003 it filed an "erratum" deleting that allegation as included "through inadvertence and clerical mishap." The case was decided December 10, 2007.

Arguments of the Parties

Issue

B. Secondary Issues. Whether the 68 votes of newly regularized rank-and-file employees, omitted from the voters' list settled at the pre-election conference, should have been appreciated.

C. Ancillary/Incidental Issues. Whether the Union's handwritten manifestation during the election was sufficient compliance with the rule on formalization of protests.

Ruling

Dispositive portion (verbatim):

"WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated April 9, 2003 of the Court of Appeals in CA-G.R. SP No. 74273 and the Resolution dated August 15, 2003 are AFFIRMED. The temporary restraining order issued on September 15, 2003 is hereby DISSOLVED. No pronouncement as to costs.

SO ORDERED."

Ratio

The Court took the third assigned error first — "[w]e shall first resolve the last assigned issue: Was it proper to appreciate the votes of the dismissed employees?" — because it alone could affect the outcome.
It rested on the text of the rule then in force: Section 2, Rule XII "clearly, unequivocally and unambiguously allows dismissed employees to vote during the certification election if the case they filed contesting their dismissal is still pending at the time of the election."
The condition was satisfied on the dates. The dismissed employees' "votes... were challenged by petitioner although their cases were still pending at the time of the certification election on November 23, 2001. These cases were filed on June 27, 2001 and the appeal of the Labor Arbiter's February 28, 2003 Decision was resolved by the NLRC only on August 29, 2003."
The Court reinforced the reading by pointing to the successor provision: "[e]ven the new rule has explicitly stated that without a final judgment declaring the legality of dismissal, dismissed employees are eligible or qualified voters," quoting Section 5, Rule IX of D.O. No. 40-03 — a dismissed employee who "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."
Yokohama's attempt to distinguish dismissals for causes "unrelated to the certification election" therefore failed for want of any textual foothold; neither rule turns on the ground of dismissal, only on whether it is being contested and whether a final judgment has upheld it.
On that footing the Court found "no reversible error on the part of the DOLE Acting Secretary and the Court of Appeals in ordering the appreciation of the votes of the dismissed employees."
The remaining errors were disposed of on mootness: "[t]he 68 votes of the newly regularized rank-and-file employees, even if counted in favor of 'No Union,' will not materially alter the result. There would still be 208 votes in favor of respondent and 189 votes in favor of 'No Union.'"
The Court closed with a practical observation about completed elections: "[w]e also note that the certification election is already a fait accompli, and clearly petitioner's rank-and-file employees had chosen respondent as their bargaining representative." The temporary restraining order was accordingly dissolved.