R. TRANSPORT CORPORATION, PETITIONER, VS. HON. BIENVENIDO E. LAGUESMA, IN HIS CAPACITY AS UNDERSECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT, CHRISTIAN LABOR ORGANIZATION …

This is a petition for certiorari under Rule 65 of the
Rules of Court which seeks to set aside the Resolutions of the Undersecretary
of the Department of Labor and Employment (DOLE), dated July 22, 1992,
affirming the order of the Med­-Arbiter calling for the conduct of the
certification election, and August 25, 1992, denying petitioner’s motion for
reconsideration.

On January 4, 1991, respondent Christian Labor Organization of
the Philippines (CLOP), filed with the Med-­Arbitration Unit of the DOLE a
petition for certification election among the rank and file employees of the
petitioner (NCR-OD-M-91-01-002).

On April 8, 1991, Med-Arbiter A. Dizon dismissed the petition on
the ground that the bargaining unit sought to be represented by respondent CLOP
did not include all the eligible employees of petitioner but only the drivers,
conductors, and conductresses to the exclusion of the inspectors,
inspectresses, dispatchers, mechanics and washer boys.

On May 10, 1991, respondent CLOP rectified its mistake and filed
a second petition for certification election, which included all the rank and
file employees of the company, who hold non-managerial and non-supervisorial
positions.

Petitioner filed a motion to dismiss the second petition and
contended that the dismissal of the first petition constituted res judicata. Petitioner argued that respondent CLOP
should have interposed an appeal to the dismissal of the first petition and its
failure to do so barred it from filing another petition for certification
election.

On July 3, 1991, Med-Arbiter R. Parungo rendered a decision,
which ordered that a certification election among the regular rank and file
workers of petitioner company be conducted (Rollo, pp. 87-91).

On October 16, 1991, the Associated Labor Unions (ALU­-TUCP)
filed a motion for intervention (NCR OD-M-91-01-002) and alleged that it has
members in the proposed bargaining unit. Subsequently, the National Federation of Labor Unions (NAFLU) filed a
separate petition for certification election (NCR-OD-M–91-10-058) and a motion
to consolidate related cases to avoid confusion.

Dissatisfied with the Decision dated July 3, 1991 rendered by
Med-Arbiter R. Parungo, petitioner appealed to the DOLE Secretary, who, through
Undersecretary Bienvenido E. Laguesma, affirmed the order of the Med-Arbiter in
its Resolution dated July 22, 1992 calling for the conduct of the certification
election (Rollo, pp. 25-28). The Resolution, in
pertinent part, reads as follows:

xxx                                                xxx                                       xxx

“The defense of res judicata is not obtaining in the
present petition for certification election. It is settled that for res judicata to apply there must be a
final judgment on the merits on matters put in issue. In the instant case, ‘it could not be said that there is a
final judgment on the merits of the petition simply because the composition of
the present proposed bargaining unit is different from that in the first
petition. Moreover, there are now other
parties involved, and therefore, it would not be correct to say that the
parties in the said two cases are identical.

xxx                                                xxx                                       xxx

With regard however, to the question on propriety of consolidation,
there is merit in the argument of respondent-appellant on the need to
consolidate the separate petitions for certification election because they
involve the same bargaining unit. Case
No. NCR-OD-M-91-10-058 should be consolidated with that of Case No. NCR­-OD-M-91-05-062,
where the petition of NAFLU should be treated as an intervention and resolved
by the Med-Arbiter together with the intervention of ALU­-TUCP.

PREMISES CONSIDERED, the Order of the Med-Arbiter calling for the
conduct of the certification election is hereby affirmed subject to the
resolution of the Med-Arbiter of the motions for intervention
aforementioned” (Rollo, pp. 27-28; underscoring supplied).

On July 31, 1992, petitioner filed a Motion for Reconsideration,
again stressing the principle of res judicata. Petitioner further argued that the second petition for a
certification election by respondent CLOP, NAFLU and ALU-TUCP were barred at
least for a period of one year from the time the first petition of CLOP was dismissed pursuant to Section 3, Rule V,
Book V of the Omnibus Rules Implementing the Labor Code as amended.

On August 25, 1991, Undersecretary Laguesma denied the motion for
reconsideration (Rollo, pp. 32-34).

On September 3, 1992, petitioner filed a Motion to Suspend
Proceedings Based on Prejudicial Questions as an Addendum to the Motion for
Reconsideration filed on July 31, 1992. Petitioner argued that the present case must be indefinitely suspended
until the following cases are resolved by the NLRC and the Supreme Court: a) NLRC-NCR Case No. 00-08-04708-91 entitled
“R. Transport Corporation v. Jose S. Torregaza, et. al., wherein Labor
Arbiter de Castro declared the strike staged by respondent CLOP illegal and
ordered the strikers to pay petitioner the amount of P10,000.00 as exemplary
damages; b) NLRC-NCR Case No. 06-03415092 filed by respondent CLOP and its
members for illegal dismissal; and c) NLRC-NCR Case No. 00-08-04389-92 filed by
respondent CLOP in behalf of its affected members for illegal dismissal (Rollo,
pp. 139-145).

On September 29, 1992, Undersecretary Laguesma in a resolution
denied the motion to suspend the conduct of the certification election. The pertinent portion of said resolution
reads as follows:

“The pendency of NLRC-NCR Cases Nos. 00-08-­04708-91,
06-03415092 and 00-08-04389-92 before the NLRC is not a valid ground for the
suspension of the already stalled petition for certification election which
must be resolved with dispatch.

This must be so, because the employees subject of the pending
cases before the NLRC legally remain as employees of respondent until the
motion to declare them as having lost their employment status by reason of the
illegal strike or their complaint for illegal dismissal is finally
resolved” (Rollo, pp. 181-182; underscoring supplied).

On October 14, 1992, petitioner filed a motion for
reconsideration of the Resolution dated September 29, 1992 which was
subsequently denied by Undersecretary Laguesma on October 29, 1992 (Rollo, pp.
29-31).

Petitioner filed a Comment and Objection to the Order dated
October 29, 1992 with Urgent Motion to Dismiss the Petition for Certification
Election. Without waiting for the
resolution of the motion to dismiss, petitioner resorted to this Court by way
of the instant special civil action.

This petition is without merit.

Before the principle of res judicata can be operative, the
following requisites must be compresent: a) the former judgment or order must be final; b) it must be a judgment
or order on the merits; c) it must have been rendered by a court having
jurisdiction over the subject-matter and the parties; and d) there must be,
between the first and second actions, identity of parties (Nabus v. Court of
Appeals, 193
SCRA 732 [1991]).

In the case at bench, it cannot be said that the parties in the
first and second actions were identical. The first action was dismissed by the Med-Arbiter because it excluded parties
essential to the bargaining unit such as inspectors, inspectresses, dispatchers
and washer boys. The second petition included all the employees who were excluded in the first
petition. Therefore, the Med-Arbiter
was correct when he gave due course to the second petition for certification
election after respondent CLOP corrected its mistake.

Likewise untenable is petitioner’s contention that the second
petition for certification election should have been filed after one year from
the dismissal of the first petition for certification election under Section 3, Rule V, Book V of the Omnibus Rules
Implementing the Labor Code as amended. Said section provides as follows:

“When to file – In the absence of collective bargaining
agreement duly registered in accordance with Article 231 of the Code, a
petition for certification election may be filed any time. However, no certification election may be
held within one year from the date of issuance of a final certification
election result” (underscoring supplied).

Apparently, petitioner misread the above-mentioned provision of
law. The phrase “final
certification election result” means that there was an actual conduct of
election i.e., ballots were cast and there was a counting of votes. In this case, there was no certification
election conducted precisely because the first petition was dismissed, on the
ground of a defective petition which did not include all the employees who
should be properly included in the collective bargaining unit.

Devoid of merit is petitioner’s contention that the employment
status of the members of respondent CLOP who joined the strike must first be
resolved before a certification election can be conducted.

As held in the case of Philippine Fruits and Vegetables Industries, Inc. v. Torres, 211 SCRA 95 (1992):

“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 (Rothenberg on Labor Relations, p. 548). 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.”

Therefore, the employees of petitioner who participated in the
strike, legally remain as such, until either the motion to declare their
employment status legally terminated or their complaint for illegal dismissal
is resolved by the NLRC.

It should be noted that it is petitioner, the employer, which has
offered the most tenacious resistance to the holding of a certification
election. This must not be so for the
choice of a collective bargaining agent is the sole concern of the
employees. The employer has no right to
interfere in the election and is merely regarded as a bystander (Divine Word
University of Tacloban v. Secretary of Labor and Employment, 213 SCRA 759
[1992]).

Finally, petitioner’s Comment and Objection to the Order dated
October 29, 1992 with Urgent Motion to Dismiss the Petition for Certification
Election is still pending with the Undersecretary of Labor. The resort to judicial action by petitioner
is premature. Hence, it is also guilty
of forum-shopping in pursuing the same cause of action involving the same
issue, parties and subject matter before two different fora.

WHEREFORE, the Court Resolved to DISMISS the petition.

SO ORDERED.

Cruz, (Chairman), and
Davide, Jr., JJ., concur.

Bellosillo, J., on leave.