PHILIPPINE FRUITS AND VEGETABLE INDUSTRIES, INC., PETITIONER, VS. HON. RUBEN D. TORRES, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT AND TRADE UNION OF…

This petition for review on certiorari with prayer for the
issuance of a temporary restraining order and/or preliminary injunction assails
the following:

(1) The Resolution dated December 12, 1989 of
public respondent Secretary of Labor^[1]
affirming on appeal the Order dated March 7, 1989 issued by Med­-Arbiter Danilo
T. Basa, and certifying private respondent Trade Union of the Philippines and
Allied Services (or TUPAS) as the
sole and exclusive bargaining agent of all regular rank-and-file and seasonal
workers at Philippine Fruits and Vegetable Industries, Inc. (or PFVII),
petitioner herein; and

(2)    The
Order dated February 8, 1990 issued by public respondent Secretary of Labor^[2]
denying petitioner’s Urgent Motion for Reconsideration.

Petitioner PFVII contends the questioned resolution and order are
null and void as they are contrary to law and have been issued with grave abuse
of discretion, and having no other plain, speedy and adequate remedy in the
ordinary course of law, it filed with this Court the petition now at hand.

The facts of the case are well-stated in the Comment filed by the
Solicitor General, and are thus reproduced hereunder, as follows:

“On October 13, 1988, Med-Arbiter Basa issued an Order
granting the petition for Certification election filed by the Trade Union of
the Philippines and Allied Services (TUPAS). Said order directed the holding of a certification election among the
regular and seasonal workers of the Philippine Fruits and Vegetables, Inc. (p. 42, NLRC, Records).

“After a series of pre-election conferences, all issues
relative to the conduct of the certification election were threshed out except
that which pertains to the voting qualifications of the hundred ninety four
(194) workers enumerated in the lists of qualified voters submitted by TUPAS.

“After a late submission by the parties of their respective
position papers, Med?Arbiter Basa issued an Order dated December 9, 1988
allowing 184 of the 194 questioned workers to vote, subject to challenge, in
the certification election to be held on December 16, 1989. Copies of said Order were furnished the
parties (p. 118, NLRC, Records) and on December 12, 1988 the notice of
certification election was duly posted. One hundred sixty eight (168) of the questioned workers actually voted
on election day.

“In the scheduled certification election, petitioner objected
to the proceeding, through a Manifestation (p. 262, NLRC, Records) filed with
the Representation Officer before the close of the election proceedings. Said Manifestation pertinently reads:

‘The posting of the list of eligible voters authorized to
participate in the certification election was short of the five (5) days
provided by law considering that it was posted only on December 12, 1988 and
the election was held today, December 16, 1988 is only four days prior to the
scheduled certification election.’

“By agreement of petitioner and TUPAS, workers whose names
were inadvertently omitted in the list of qualified voters were allowed to
vote, subject to challenge (p. 263,
NLRC, Records). Thirty eight of them
voted on election day.

“Initial tally of the election results excluding the
challenged votes showed the following:

Total No. of Votes
——————– 291

Yes votes
—————————— 40

No votes
——————————- 38

Spoiled
——————————— 7

Challenged (Regular)
————— 38

Total No. of Votes Cast
————- 123

“On January 6, 1989, Management and TUPAS agreed to have the
36 challenged votes of the regular rank-and-file employees opened and a canvass
thereof showed:

Yes votes
—————– 20

No votes
—————— 14

Spoiled
——————– 4

Total————————
38

“Added to the initial election results of December 16, 1988,
the canvass of results showed:

Yes ————- 60

No ————– 52

Spoiled ——– 11

Total ———–123

“Based on the foregoing results, the yes votes failed to
obtain the majority of the votes cast in said certification election, hence,
the necessity of opening the 168 challenged votes to determine the true will of
the employees.

“On January 20, 1989, petitioner filed a position paper
arguing against the opening of said votes mainly because said voters are not
regular employees nor seasonal workers for having allegedly rendered work for
less than 180 days.

“Trade Union of the Philippines and Allied Services (TUPAS),
on the other hand, argued that the employment status of said employees has been
resolved when Labor Arbiter Ricardo N. Martinez, in his Decision dated November
26, 1988 rendered in NLRC Case No. Sub-Rab-01-09-7-0087-88, declared that said
employees were illegally dismissed.

“In an Order dated February 2, 1989 (pp. 278-280, NLRC,
Records) Med-Arbiter Basa ordered the opening of said 168 challenged votes upon
his observation that said employees were illegally dismissed in accordance with
the foregoing Decision of Labor Arbiter Martinez. As canvassed, the results showed:

Yes votes —— 165

No Votes ——- 0

Spoiled ——— 3

Total ———— 168

“On February 23, 1989, petitioner formally filed a Protest
(pp. 284-287, NLRC, Records) claiming that the required five day posting of
notice was not allegedly complied with and that the list of qualified voters so
posted failed to include fifty five regular workers agreed upon by the parties
as qualified to vote. The Protest
further alleged that voters who were ineligible to vote were allowed to vote.

“Med-Arbiter Basa, in his Order dated March 7, 1989, dismissed
said Protest which Order was affirmed on appeal in the Resolution dated
December 12, 1989 of then Secretary of Labor, Franklin Drillon.

“Petitioner’s Motion for
Reconsider­ation was denied for lack of merit in public respondent’s Order
dated February 28, 1990.”

(pp.
84-88, Rollo)^[3]

The instant petition has, for its Assignment of Errors, the
following:

(1)   The Honorable Secretary of Labor and
Employment acted with grave abuse of discretion amounting to lack of
jurisdiction and committed manifest error in upholding the certification of
TUPAS as the sole bargaining agent mainly on an erroneous ruling that the
protest against the canvassing of the votes cast by 168 dismissed workers was
filed beyond the reglementary period.

(2)      
The Honorable Secretary of Labor committed an abuse of
discretion in completely disregarding the issue as to whether or not
non-regular seasonal workers who have long been separated from employment prior
to the filing of the petition for certification election would be allowed to
vote and participate in a certification election.^[4]

The Court finds no merit in the petition.

For it is to be noted that the formal protest of petitioner PFVII
was filed beyond the reglementary period. A close reading of Sections 3 and 4, Rule VI, Book V of the Implementing
Rules of the Labor Code, which read as follows:

“Section 3. Representation officer may rule on
any-on-the-spot questions. – The
Representation officer may rule on any on­-the-spot question arising from the
conduct of the election. The interested
party may however, file a protest with
the representation officer before the close
of the proceedings.

“Protests not so raised are
deemed waived. Such
protest shall be contained in the minutes
of the proceedings.” (underscoring supplied)

“Section 4. Protest to
be decided in twenty (20) working days. – Where the protest is formalized before
the med-arbiter within five (5) days after
the close of the election proceedings,
the med-arbiter shall decide the same within twenty (20) working days from the
date of formalization. If not
formalized within the prescribed period, the
protest shall be deemed dropped. The
decision may be appealed to the Bureau in the same manner and on the same
grounds as provided under rule V.” (Underscoring supplied)

would readily yield, as a matter of procedure, the following
requirements in order that a protest
filed thereunder would prosper, to wit:

(1)      
The protest must be filed with the representation officer and
made of record in the minutes of the proceedings before the close of election
proceedings, and

(2)      
The protest must be formalized before the Med-Arbiter within
five (5) days after the close of the election proceedings.

The records before Us quite clearly disclose the fact that
petitioner, after filing a manifestation of protest on December 16, 1988,
election day, only formalized the same on February 20, 1989, or more than two
months after the close of election proceedings (i.e., December 16, 1988). We are
not persuaded by petitioner’s arguments that election proceedings
include not only casting of votes but necessarily includes canvassing and
appreciation of votes cast and considering that the canvassing and appreciation
of all the votes cast were terminated only on February 16, 1989, it was only
then that the election proceedings are deemed closed, and thus, when the formal
protest was filed on February 20, 1989, the five-day period within which to
file the formal protest still subsisted and its protest was therefore
formalized within the reglementary
period.^[5]

As explained correctly by the Solicitor General, the phrase
“close of election proceedings” as used in Sections 3 and 4 of the
pertinent Implementing Rules refers to that period from the closing of the polls to the counting and
tabulation of the votes as it could not have been the intention of the Implementing Rules to include in the
term “close of the election proceedings” the period for the final determination
of the challenged votes and the canvass thereof, as in the case at bar which
may take a very long period.^[6] Thus,
if a protest can be formalized within five days after a final determination and canvass of the challenged votes
have been made, it would result in an undue delay in the affirmation of the
employees’ expressed choice of a bargaining representative.^[7]

Petitioner would likewise bring into issue the fact that the
notice of certification election was posted only on December 12, 1988 or four days before the
scheduled elections on December 16, 1988, instead of the five-day period as
required under Section 1 of Rule VI, Book V of the Implementing Rules. But it is not disputed that a substantial
number, or 291 of 322 qualified voters, of the employees concerned were
informed, thru the notices thus posted, of the elections to be held on December
16, 1988, and that such employees had in fact voted accordingly on election
day. Viewed thus in the light of the
substantial participation in the elections by voter-employees, and further in
the light of the all-too settled rule that in interpreting the Constitution’s
protection to labor and social justice provisions and the labor laws and rules and regulations implementing the
constitutional mandate, the Supreme Court adopts the liberal approach which
favors the exercise of labor rights.^[8] We
find the lack of one day in the posting of notices insignificant, and hence,
not a compelling reason at all in nullifying the elections.

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

“The election results indicate that TUPAS obtained majority of
the valid votes cast in the election – 60 plus 165, or a total of 225 votes out
of a possible total of 291.

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

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

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

WHEREFORE, the petition filed by Philippine Fruits and
Vegetable Industries, Inc. (PFVII) is hereby DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Regalado, and Nocon, JJ.,
concur.

^[1]
Then Secretary of Labor Franklin M. Drilon.

^[2]
Then Secretary of Labor Ruben D. Torres.

^[3]
Rollo, pp. 84-88.

^[4]
Ibid., at p. 9.

^[5]
Rollo, pp. 66-67; Annex “I” of the Petition.

^[6]
Rollo, p. 91; Comment of the Solicitor General, p. 8.

^[7]
Ibid.; Id..

^[8]
Manila Electric Company vs. NLRC, G.R. No. 78763 July 12, 1989.

^[9]
Rollo, p. 26; Annex “B”, p.
5.

^[10]
Rothenberg on Labor Relations, p. 548.

^[11]
Samahang Manggagawa ng Via Mare vs.
Noriel, 98 SCRA 507.