Department Order (D.O.) No. 40-03, as amended by D.O. 40-F-03 and D.O. 40-I-15
NOTE: 1) Rule VII (Voluntary Recognition) was replaced by Rule VII (REQUEST FOR SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) CERTIFICATION) by D.O. 40-I-15.
2) Inconsistency between Rule VIII, Section 14 (f), Rule IX, Section 3, and Rule IX, Section 6 regarding the employment period for members of the bargaining unit.
RULE VIII
CERTIFICATION ELECTION
Section 1. Who May File. – Any legitimate labor organization, including a national union or federation that has issued a charter certificate to its local/chapter or the local/chapter itself, may file a petition for certification election.
A national union or federation filing a petition in behalf of its local/chapter shall not be required to disclose the names of the local/chapter’s officers and members, but shall attach to the petition the charter certificate it issued to its local/chapter.
When requested to bargain collectively in a bargaining unit where no registered collective bargaining agreement exists, an employer may file a petition for certification election with the Regional Office.
In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer’s participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature: and (2) submitting the list of employees during the pre-election conference should the Mediator-Arbiter act favorably on the petition. However, manifestation of facts that would aid the mediator-arbiter in expeditiously resolving the petition such as existence of a contract-bar, one year bar or deadlock bar may be considered. The contract-bar rule shall apply in any of the following: (1) when there exists an unexpired registered CBA; or (2) when there is no challenge on the representation status of the incumbent union during the freedom period. (as amended by D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 2. Where to file. – A petition for certification election shall be filed with the Regional Office which issued the petitioning union’s certificate of registration or certificate of creation of chartered local.
At the option of the petitioner, a petition for certification election and its supporting documents may also be filed online.
The petition shall be heard and resolved by the Mediator-Arbiter.
Where two (2) or more petitions involving the same bargaining unit are filed in one (1) Regional Office, the same shall be automatically consolidated with the Mediator-Arbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. (as amended by D.O. 40-I-15, 7 September 2015)
Section 3. When to file. – A petition for certification election may be filed anytime, except:
(a) when a fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within the bargaining unit within one (1) year prior to the filing of the petition for certification election. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running or the one year period shall be suspended until the decision on the appeal has become final and executory;
(b) when the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 [renumbered 261] of the Labor Code within the one year period referred to in the immediately preceding paragraph;
(c) when a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout;
(d) when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 [renumbered 237] of the Labor Code. Where such collective bargaining agreement is registered, the petition may be filed only within sixty (60) days prior to its expiry.
Section 4. Form and contents of petition. – The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where a federation or national union files a petition in behalf of its local or affiliate, the petition shall be verified under oath by the president or duly authorized representative of the federation or national union. In case the employer filed the petition, the owner, president or any corporate officer, who is authorized by the board of directors shall verify the petition. The petition shall contain the following:
(a) the name of petitioner, its address, and affiliation if appropriate, the date and number of its certificate of registration. If the petition is filed by a federation or national union, the national president or his/her duly authorized representative shall certify under oath as to the existence of its local/chapter in the establishment and attaching thereto the charter certificate or a certified true copy thereof. If the petition is filed by a local/chapter it shall attach its charter certificate or a certified true copy thereof;
(b) the name, address and nature of employer’s business;
(c) the description of the bargaining unit;
(d) the approximate number of employees in the bargaining unit;
(e) the names and addresses of other legitimate labor unions in the bargaining unit:
(f) a statement indicating any of the following circumstances:
1) that the bargaining unit is unorganized or that there is no registered collective bargaining agreement covering the employees in the bargaining unit;
2) if there exists a duly registered collective bargaining agreement, that the petition is filed within the sixty-day freedom period of such agreement; or
3) if another union had been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed outside the one-year period from date of recording of such voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon.
(g) in an organized establishment, the signature of at least twenty-five percent (25%) of all employees in the appropriate bargaining unit shall be attached to the petition at the time of its filing; and
(h) other relevant facts. (as amended by D.O. 40-F-03, 30 October 2008)
Section 5. Raffle or the case. – The Regional Director or his/her duly authorized representative upon receipt of the petition shall immediately assign it by raffle to a Mediator-Arbiter. The raffle shall be done in the presence of the petitioner if the latter so desires. (as amended by D.O. 40-F-03, 30 October 2008)
Section 6. Notice of preliminary conference. – The petition shall immediately be transmitted to the assigned Mediator-Arbiter who shall immediately prepare and serve a notice of preliminary conference to be held within ten (10) working days from the Mediator-Arbiter’s receipt of the petition.
The service of the petition to the employer and of the notice of preliminary conference to the petitioner and the incumbent bargaining agent (if any) shall be made within three (3) working days from the Mediator-Arbiter’s receipt of the petition. The service may be made by personal service, by registered mail or by courier service.
A copy of the petition and of the notice of preliminary conference shall be posted within the same three (3) day period in at least two conspicuous places in the establishment. In multiple-location workplaces, the posting shall be made in at least two conspicuous places in every location. (as amended by D.O. 40-F-03, 30 October 2008)
Section 7. Posting. – The regional director or his/her authorized DOLE personnel, and/or the petitioner shall be responsible for the posting of the notice of petition for certification election. (inserted by D.O. 40-I-15, 7 September 2015)
Section 8. Forced Intervenor. – The incumbent bargaining agent shall automatically be one of the choices in the certification election as forced intervenor. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 9. Motion for Intervention. – When a petition for certification election was filed in an organized establishment, any legitimate labor union other than the incumbent bargaining agent operating within the bargaining unit may file a motion for intervention with the Med-Arbiter during the freedom period of the collective bargaining agreement. The form and contents of the motion shall be the same as that of a petition for certification election.
In an unorganized establishment, the motion shall be filed at any time prior to the decision of the Med-Arbiter. The form and contents of the motion shall likewise be the same as that of a petition for certification election. The motion for intervention shall be resolved in the same decision issued in the petition for certification election. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 10. Preliminary Conference; Hearing. – The Med-Arbiter shall conduct a preliminary conference and hearing within ten (10) days from receipt of the petition to determine the following:
(a) the bargaining unit to be represented;
(b) contending labor unions;
(c) possibility of a consent election:
(d) existence of any of the bars to certification election under Section 3 of this Rule: and
(e) such other matters as may be relevant for the final disposition of the case. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 11. Consent Election; Agreement. – The contending unions may agree to the holding of an election, in which case it shall be called a consent election. The Mediator-Arbiter shall forthwith call for the consent election, reflecting the parties’ agreement and the call in the minutes of the conference.
The Mediator-Arbiter shall, immediately forward the records of the petition to the Regional Director or his/her authorized representative for the determination of the Election Officer who shall be chosen by raffle in the presence of representatives of the contending unions if they so desire.
The first pre-election conference shall be scheduled within ten (10) days from the date of the consent election agreement. Subsequent conferences may be called to expedite and facilitate the holding of the consent election.
To afford an individual employee-voter an informed choice where a local/chapter is the petitioning union, the local/chapter shall secure its certificate of creation at least five working days before the date of the consent election. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 12. Number of Hearings; Pleadings. – If the contending unions fail to agree to a consent election during the preliminary conference, the Med-Arbiter may conduct as many hearings as he/she may deem necessary, but in no case shall the conduct thereof exceed fifteen (15) days from the date of the scheduled preliminary conference/hearing, after which time the petition shall be considered submitted for decision. The Med-Arbiter shall have control of the proceedings. Postponements or continuances shall be discouraged.
Within the same 15-day period within which the petition is heard, the contending labor unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions of time shall not be entertained. All motions shall be resolved by the Med-Arbiter in the same order or decision granting or denying the petition. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 13. Failure to appear despite notice. – The failure of any party to appear in the hearing(s) when notified or to file its pleadings shall be deemed a waiver of its right to be heard. The Med-Arbiter, however, when agreed upon by the parties for meritorious reasons may allow the cancellation of scheduled hearing(s). The cancellation of any scheduled hearing(s) shall not be used as a basis for extending the 15-day period within which to terminate the same. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 14. Order/Decision on the petition. – Within ten (10) days from the date of the last hearing, the Mediator-Arbiter shall formally issue a ruling granting or denying the petition, except in organized establishments where the grant of the petition can only be made after the lapse of the freedom period.
The ruling for the conduct of a certification election shall state the following:
(a) the name of the employer or establishment;
(b) a 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 the contending labor unions which shall appear in the following order: the petitioner unions in the order of the date of filing of their respective petitions; the forced intervenor; and “no union”:
(e) to afford an individual employee-voter an informed choice where a local/chapter is one of the contending unions, a directive to an unregistered local/chapter or a federation/national union representing all unregistered local/chapter to personally submit to the Election Officer its certificate of creation at least five working days before the actual conduct of the certification election.
Non-submission of this requirement as certified by the Election Officer shall disqualify the local/chapter from participating in the certification election: and
(f) 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. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 15. Denial of the petition; Grounds. – The Mediator-Arbiter may dismiss the petition on any of the following grounds:
(a) the petitioning union or national union/federation is not listed in the Department’s registry of legitimate labor unions or that its registration certificate has been cancelled with finality in accordance with Rule XIV of these Rules:
(b) failure of a local/chapter or national union/federation to submit a duly issued charter certificate upon filing of the petition for certification election;
(c) filing the petition before or after the freedom period or a duly registered collective bargaining agreement; provided that the sixty-day period based on the original collective bargaining agreement shall not be affected by any amendment, extension or renewal of the collective bargaining agreement;
(d) filing of a petition within one (1) year from the date of recording of the voluntary recognition, or within the same period from a valid certification, consent or run-off election where no appeal on the results of the certification, consent or run-off election is pending;
(e) where a duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 [renumbered 261] of the Labor Code within the one-year period referred to in Section 14.d of this Rule, or where there exists a bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout where an incumbent or certified bargaining agent is a party;
(f) in an organized establishment, the failure to submit the twenty-five percent (25%) signature requirement to support the filing of the petition for certification election;
(g) non-appearance of the petitioner for two (2) consecutive scheduled conferences before the Mediator-Arbiter despite due notice; and
(h) absence of employer-employee relationship between all the members of the petitioning union and the establishment where the proposed bargaining unit is sought to be represented. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 16. Prohibited ground for the denial/suspension of the petition. – The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said unions. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered pursuant to D.O. 40-I-15, 7 September 2015)
Section 17. Ancillary Issues. – All issues pertaining to the existence of employer-employee relationship, eligibility or mixture in union membership raised before the Mediator-Arbiter during the hearing(s) and in the pleadings shall be resolved in the same order or decision granting or denying the petition for certification election.
All issues pertaining to the validity of the petitioning union’s certificate of registration or its legal personality as a labor organization, validity of registration and execution of collective bargaining agreements shall be heard and resolved by the Regional Director in an independent petition for cancellation of its registration and not by the Mediator-Arbiter in the petition for certification election, unless the petitioning union is not listed in the Department’s roster of legitimate labor organizations, or an existing collective bargaining agreement is not registered with the Department. (renumbered and amended by D.O. 40-F-03. 30 October 2008)
Section 18. Release of Order/Decision within ten (10) days from the last hearing. – The Med-Arbiter shall release his/her order or decision granting or denying the petition personally to the parties within ten (10) days from the last hearing, copy furnished the employer. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015 and amended by D.O. 40-I-15, 7 September 2015)
Section 19. Appeal. – The order granting the conduct of a certification election in an unorganized establishment shall not be subject to appeal. Any issue arising therefrom may be raised by means of protest on the conduct and results of the certification election.
The order granting the conduct of a certification election in an organized establishment and the decision dismissing or denying the petition, whether in an organized or unorganized establishment, may be appealed to the Office of the Secretary within ten (10) days from receipt thereof.
The appeal shall be verified under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 20. Where to file appeal. – The memorandum of appeal shall be filed in the Regional Office where the petition originated, copy furnished the contending unions and the employer, as the case may be. Within twenty-four (24) hours from receipt of the appeal, the Regional Director shall cause the transmittal thereof together with the entire records of the case to the Office of the Secretary. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 21. Finality of Order/Decision. – Where no appeal is filed within the ten-day period, the Med-Arbiter shall enter the finality of the order/decision in the records of the case and cause the transmittal of the records of the petition to the Regional Director. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 22. Period to Reply. – A reply to the appeal may be filed by any party to the petition within ten (10) days from receipt of the memorandum of appeal. The reply shall be filed directly with the Office of the Secretary. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 23. 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. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 24. Transmittal of records to the Regional Office. – Within forty-eight (48) hours from notice of receipt of decision by the parties and finality of the decision, the entire records of the case shall be remanded to the Regional Office of origin for implementation. Implementation of the decision shall not be stayed unless restrained by the appropriate court. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 25. Effects of consent election. – Where a petition for certification election had been filed, and upon the intercession of the Med-Arbiter, the parties agree to hold a consent election, the results thereof shall constitute a bar to the holding of a certification election for one (1) year from the holding of such consent election. Where an appeal has been filed from the results of the consent election, the running of the one-year period shall be suspended until the decision on appeal has become final and executory.
Where no petition for certification election was filed but the parties themselves agreed to hold a consent election with the intercession of the Regional Office, the results thereof shall constitute a bar to another petition for certification election. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 26. Effects of early agreements. – The representation case shall not be adversely affected by a collective bargaining agreement registered before or during the last sixty (60) days of a subsisting agreement or during the pendency of the representation case. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 27. Non-availability of Med-Arbiter. – Where there is no Med-Arbiter available in the Regional Office by reason of vacancy, prolonged absence, or excessive workload as determined by the Regional Director, he/she shall transmit the entire records of the case to the Bureau, which shall within forty-eight (48) hours from receipt assign the case to any Med-Arbiter from any of the Regional Offices or from the Bureau. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
RULE IX
CONDUCT OF CERTIFICATION ELECTION
SECTION 1. Employer as By-Stander. – Subject to the provisions of paragraph 3, Section 1 of Rule VIII, the principle of the employer as by-stander shall be strictly observed throughout the conduct of certification election. The employer shall not harass, intimidate, threat or coerce employees before, during and after elections. (inserted by D.O. 40-I-15, 7 September 2015)
Section 2. Raffle of the case. – Within twenty-four (24) hours from receipt of the notice of entry of final judgment granting the conduct of a certification election, the Regional Director shall cause the raffle of the case to an Election Officer who shall have control of the pre-election conference and election proceedings. (renumbered by D.O. 40-I-15, 7 September 2015)
Section 3. Pre-election conference. – Within twenty-four (24) hours from receipt of the assignment for the conduct of a certification election, the Election Officer shall cause the issuance or notice of pre-election conference upon the contending unions, which shall be scheduled within ten (10) calendar days from receipt of the assignment. The employer shall be required to submit the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit at the time of the filing of the petition. (as amended by D.O. 40-F-03. 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)
Section 4. Waiver of right to be heard. – Failure of any party to appear during the pre-election conference despite notice shall be considered as a waiver of its right to be present and to question or object to any of the agreements reached in the pre-election conference. However, this shall not deprive the non-appearing party of the right to be furnished notices of and to attend subsequent pre-election conferences. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)
Section 5. Minutes of pre-election conference. – The Election Officer shall keep the minutes of matters raised and agreed upon during the pre-election conference. The parties shall acknowledge the completeness and correctness of the entries in the minutes by affixing their signatures thereon. Where any of the parties refuse to sign the minutes, the Election Officer shall note such fact in the minutes, including the reason for refusal to sign the same. In all cases, the parties shall be furnished a copy of the minutes.
The pre-election conference shall be completed within thirty (30) days from the date of the first hearing. (renumbered by D.O. 40-I-15, 7 September 2015)
Section 6. Qualification of voters; inclusion-exclusion. – All employees who are members of the appropriate bargaining unit three (3) months prior to the filing of the petition/request 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.
In case of disagreement over the voters’ list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 11 and 12 of this Rule. (as amended and renumbered by D.O. 40-I-15, 7 September 2015)
Section 7. Posting of Notices. – The Election Officer and/or authorized DOLE personnel shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company premises. The notice shall contain:
(a) the date and time of the election;
(b) names of all contending unions;
(c) the description of the bargaining unit and the list of eligible and challenged voters.
The posting of the list of employees comprising the bargaining unit shall be done by the DOLE personnel.
The posting of the notice or election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer. (as amended and renumbered by D.O. 40-I-15, 7 September 2015)
Section 8. Secrecy and sanctity of the ballot. – To ensure secrecy of the ballot, the Election Officer, together with the authorized representatives of the contending unions and the employer, shall before the start of the actual voting, inspect the polling place, the ballot boxes and the polling booths.
No device that could record or identify the voter or otherwise undermine the secrecy and sanctity of the ballot shall be allowed within the premises, except those devices brought in by the election officer. Any other device found within the premises shall be confiscated by the election officer and returned to its owner after the conduct of the certification election. (as amended and renumbered by D.O. 40-I-15, 7 September 2015)
Section 9. Preparation of ballots. – The Election Officer shall prepare the ballots in English and Filipino or the local dialect. The number of ballots should correspond to the number of voters in the bargaining unit plus a reasonable number or extra ballots for contingencies. All ballots shall be signed at the back by the Election Officer and an authorized representative each of the contending unions. A party who refuse or fails to sign the ballots waives its right to do so and the Election Officer shall enter the fact of refusal and the reason therefor in the records of the case. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)
Section 10. Casting of votes. – The voter must put a cross (x) or check (/) mark in the square opposite the name of the chosen union or “No Union” if she does not want to be represented by any union.
If the voter inadvertently spoils a ballot, he/she shall return it to the Election Officer who shall destroy it and give him/her another ballot.
Any member of the bargaining unit who is untentionally [(yes, the spelling is wrong)] omitted in the master list of voters may be allowed to vote if both parties agree, otherwise, he/she will be allowed to vote but the ballot is segregated. (as amended and renumbered by D.O. 40-I-15, 7 September 2015)
Section 11. Procedure in the challenge of votes. – The ballot of the voter who has been properly challenged during the pre-election conferences, shall be placed in an envelope which shall be sealed by the Election Officer in the presence of the voter and the representatives of the contending unions. The Election Officer shall indicate on the envelope the voter’s name. the union challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending unions. The Election Officer shall note all challenges in the minutes of the election proceedings and shall have custody of all envelopes containing the challenged votes. The envelopes shall be opened and the question of eligibility shall be passed upon by the Mediator-Arbiter only if the number of segregated votes will materially alter the results of the election. (renumbered and amended by D.O. 40-F-03, 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)
Section 12. On-the-spot questions. – The Election Officer shall rule on any question relating to and raised during the conduct of the election. In no case, however, shall the Election Officer rule on any of the grounds for challenge specified in the immediately preceding section. (renumbered by D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015).
Section 13. Protest; When perfected. – Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings. Protests not so raised are deemed waived.
General reservation to file a protest shall be prohibited. The protesting party shall specify the grounds for protest.
The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped. (renumbered by D.O. 40-F-03, 30 October 2008 and amended and renumbered by D.O. 40-I-15, 7 September 2015)
Section 14. Canvassing of votes. – The votes shall be counted and tabulated by the Election Officer in the presence of the representatives of the contending unions. Upon completion of the canvass, the Election Officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the Election Officer and the representatives of the contending unions and transmitted to the Med-Arbiter, together with the minutes and results of the election, within twenty-four (24) hours from the completion of the canvass.
Where the election is conducted in more than one region, consolidation of results shall be made within fifteen (15) days from the conduct thereof. (renumbered by D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 15. Conduct of election and canvass of votes. – The election precincts shall open and close on the date and time agreed upon during the pre-election conference. The opening and canvass of votes shall proceed immediately after the precincts have closed. Failure of the representative/s of the contending unions to appear during the election proceedings and canvass of votes shall be considered a waiver of the right to be present and to question the conduct thereof. (renumbered and amended by D.O. 40-F-03, 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)
Section 16. Certification of Collective Bargaining Agent. – The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five (5) days from the day of the election, provided no protest is recorded in the minutes of the election.
When the winning choice is a local chapter without a certificate of creation of chartered local, such local chapter shall submit its DOLE-issued certificate of creation within five (5) days from the conclusion of election. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and amended and renumbered by D.O. 40-I-15, 7 September 2015)
Section 17. Failure or election. – Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings. (renumbered pursuant to D.O 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 18. Re-Run Election. – When a certification, consent or run-off election results to a tie between the two (2) choices, the election officer shall immediately notify the parties of a re-run election. The election officer shall cause the posting of the notice of re-run election within five (5) days from the certification, consent or run-off election. The re-run election shall be conducted within ten (10) days after the posting of notice.
The choice receiving the highest votes cast during the re-run election shall be declared the winner and shall be certified accordingly. (inserted by D.O. 40-I-15, 7 September 2015)
Section 19. Effect of failure of election. – A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within six (6) months from date of declaration of failure of election. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 20. Action on the motion. – Within twenty-four (24) hours from receipt of the motion, the Election Officer shall immediately schedule the conduct of another certification or consent election within fifteen (15) days from receipt of the motion and cause the posting of the notice or certification election at least ten (10) days prior to the scheduled date of election in two (2) most conspicuous places in the establishment. The same guidelines and list of voters shall be used in the election. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 21. Proclamation and certification of the result of the election. – Within twenty-four (24) hours from final canvass of votes, there being a valid election, the Election Officer shall transmit the records of the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and results of election, issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid votes cast as the sole and exclusive bargaining agent in the subject bargaining unit, under any of the following conditions:
(a) no protest was filed or, even if one was filed, the same was not perfected within the five-day period for perfection of the protest;
(b) no challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the elections.
The winning union shall have the rights, privileges and obligations of a duly certified collective bargaining agent from the time the certification is issued.
Where majority of the valid votes cast results in “No Union” obtaining the majority, the Med-Arbiter shall declare such fact in the order. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 22. Appeal; finality of decision. – The decisions of the Med-Arbiter may be appealed to the Secretary within ten (10) days from receipt by the parties of a copy thereof.
The appeal shall be under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence.
Where no appeal is filed within the ten-day period, the order/decision shall become final and executory and the Med-Arbiter shall enter this fact into the records of the case. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 23. Where to file appeal. – The memorandum of appeal shall be filed in the Regional Office where the petition originated, copy furnished the contending unions and the employer, as the case may be. Within twenty-four (24) hours from receipt of the appeal, the Regional Director shall cause the transmittal thereof together with the entire records of the case to the Office of the Secretary. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 24. Period to Reply. – A reply to the appeal may be filed by any party to the petition within ten (10) days from receipt of the memorandum of appeal. The reply shall be filed directly with the Office of the Secretary. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 25. 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 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. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
Section 26. Transmittal of records to the Regional Office. – Within forty-eight (48) hours from notice of receipt of decision by the parties and finality of the decision, the entire records of the case shall be remanded to the Regional Office of origin for implementation. Implementation of the decision shall be stayed unless restrained by the appropriate court. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)
