Vote in Certification Election if Dismissal Case Still Pending

First to resolve is the last assigned issue: Was it proper to appreciate the votes of the dismissed employees? Petitioner argues that the Court of Appeals erred in ruling that the votes of the dismissed employees should be appreciated. Petitioner posits 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. Petitioner had questioned the eligibility to vote of the 78 dismissed employees.

Respondent counters that Section 2, Rule XII of the rules implementing Book V of the Labor Code allows a dismissed employee to vote in the certification election if the case contesting the dismissal is still pending.

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.

Here, the votes of employees with illegal dismissal cases 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 Arbiters 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. Thus,

RULE IX
CONDUCT OF CERTIFICATION ELECTION

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

x x x x

Thus, the Supreme Court finds 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.

Finally, The Supreme Court 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.

The Supreme Court notes that the certification election is already a fait accompli, and clearly petitioners rank-and-file employees had chosen respondent as their bargaining representative. (G.R. No. 159553; December 10, 2007)

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