MEMORANDUM

TO:

Atty. Philip John Pojas

FROM:Arvin Antonio V. Ortiz

DATE:06 February 2015

RE:The merit of the administrative complaints filed against the respective counsels of FCY Company and Federation XYZ who allegedly interfered in the certification electionTHE ISSUES(1.) Is exerting influence upon the employees to vote for Federation XYZ (XYZ for brevity) over the Activist Union (AU for brevity) during the certification election (CE) an interference that amounts to Unfair Labor Practice (ULP) by the employer?(2.) If number one is in the affirmative, may a lawyer who instructed the supervisors of the FCY to influence the employees to vote for XYZ be administratively liable?

(3.) If number two is in the affirmative, who between the counsels of FCY and XYZ is administratively liable?BRIEF ANSWER(1.) Yes. Based on jurisprudence that evolved explaining the role of employers in certification election, the employer is a mere bystander because a certification election is the sole concern of the workers, a mechanism by which the workers choose their duly authorized representative to collectively bargain with the employer. Thus, it is a ULP on the part of the employer to frustrate the free choice by the employees of a bargaining representative in their negotiations with their employer.

(2.) Yes. Under the Code of Professional Responsibility, a lawyer is an officer of the court who shall at all times uphold the constitution, obey the laws of the land, promote respect for law and legal processes. Hence, a lawyer violates the law when he advised his client to do an act which the law explicitly prohibits.(3.) Only the lawyer of FCY may be held administratively liable. Conspiracy must not only be alleged, but it must also be proven. Here, there is very little evidence to show that the respective lawyers of XYZ and FCY colluded with each other, except that both are good friends who opposed the disaffiliation of the employees from XYZ and their affiliation with the Activist Union.FACTS

The FCY Company concluded a collective bargaining agreement (CBA) with Federation XYZ, the exclusive bargaining representative of its rank-and-file employees, which would expire on April 30, 2006. 60 days before the expiration period, the local union notified FCY that the employees have disaffiliated from XYZ.Both FCY and XYZ, through their counsels who are good friends, questioned the disaffiliation of the employees from XYZ and their affiliation with the Activist Union.The Regional Office rejected their argument and directed the conduct of a certification election among the employees with the bargaining unit. Upon the instruction of FCYs counsel, the supervisors of the rank-and-file workers exerted their influence upon the employees and convinced them to vote for XYZ, which won the election with a margin of only ten votes over the AU.

Soon after, a new CBA was concluded and ratified by just more than half of the employees within the collective bargaining unit. The new CBA granted an increase of 10% over the wages and benefits granted under the previous CBA. Unable to accept their defeat, the members of the AU filed an administrative complaint with the Supreme Court against the counsels of FCY and XYZ, asking that sanctions be imposed on them for colluding with each other to frustrate the free choice by the employees of a bargaining representative in their negotiations with their employer.DISCUSSION

Interference by the employer during the certification election is an unfair labor practice by the employer.

The concept of ULP is provided in Article 247 of the Labor Code which states:Article 247.Concept of unfair labor practice and procedure for prosecution thereof.-- Unfair labor practices violate the constitutional right of workers and employees to self-organization, are inimical to the legitimate interest of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-management relations.

To commit a ULP, the following elements must be present:

1.) There is employer-employee relationship between the offender and the offended; and

2.) The act done is expressly defined in the Code as an act of unfair labor practice.

All the elements are present here. There is an employer-employee relationship between FCY and the rank-and-file employees who affiliated with AU. The act of interference is also specifically mentioned in the Labor Code as a ULP. Article 248 of the Labor Code provides:Article 248.Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practices:

(a) To interfere with, restrain, or coerce employees in the exercise of their right to self-organization;

x x x

Long-standing is the rule that the choice of a collective bargaining agent is the sole concern of the employees. The only exception to this rule is where the employer has to file the petition for certification election pursuant to Article 258 of the Labor Code because it was requested to bargain collectively, which exception finds no application here. Its role in a certification election has aptly been described inTrade Unions of the Philippines and Allied Services (TUPAS) v. Trajano, as that of a mere bystander. It has no legal standing in a certification election as it cannot oppose the petition or appeal the Med-Arbiter's orders related thereto. This principle has not been disturbed nor overturned in subsequent cases.

In another case, the Supreme Court said, On a matter that should be the exclusive concern of labor, the choice of a collective bargaining representative, the employer is definitely an intruder. His participation, to say the least, deserves no encouragement. This Court should be the last agency to lend support to such an attempt at interference with a purely internal affair of labor.

During the certification election, counsel of FCY instructed the supervisors of the company to influence the rank-and-file employees who were about to cast their votes to choose XYZ over AU. Obviously, the reason behind this move is that FCY had had an amicable relationship with XYZ since most of the CBA interpretation issues and employee termination cases that arose during its term where resolved to the parties mutual satisfaction.

When XYZ won the election with a margin of only 10 votes over AU, it must be because of the influence the supervisors of FCY exerted upon the employees. In a workplace, it is not uncommon that an employee gives in to the bidding of his superior lest the latter would be terminated from his employment. Under that circumstance, it cannot be said that the employees choice of bargaining representative was free from compulsion. When the employer frustrates that freedom of choice, he violates as well the employees right to self-organization.

Hence, the act of FCY, through its counsel and ultimately through its supervisors, in interfering with the employees freedom of choice of bargaining representative constitutes a ULP.

A lawyer violates the law for advising a client to commit an unfair labor practice, and may thus be held administratively liable.

A lawyer is an officer of the Court. In that capacity, he has sworn to uphold the constitution, obey the laws of the land, and promote respect for law and legal processes. In addition, A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct and he shall not counsel or abet activities at defiance of the law or at lessening confidence in the legal system.

On legal matters, lawyers know better than their clients. By virtue of their training and knowledge of the law, they are in the position to advise their clients what actions are permissible under the law. Although it is the right of their clients to exhaust the remedies the law permits, it is ultimately the lawyer who prevails in the choice of which course of legal action to take.

In this case, FCYs counsel instructed the supervisors of the company to influence the employees to vote for XYZ over AU. As shown above, that is an unfair labor practice on the part of the employer. Knowing that it is against the law to interfere with the employees during certification election as doing so frustrates their right to self-organization, the lawyer must have refrained from advising his client to pursue that conduct.

Therefore, a lawyer who commits that act is subject to administrative sanction, if only to restore the confidence of the people on the judicial system and to impress upon other lawyers that a similar act will not go unpunished.

Only the lawyer of FCY may be held liable since there is no proof that the lawyer of XYZ colluded with the lawyer of FCY in interfering with the rank-and-file employees during the certification election.

The lawyer of XYZ, who is a good friend of FCYs lawyer, is implicated for allegedly colluding with each other in frustrating the free choice by the rank-and-file employees of a bargaining representative in their negotiations with their employer.

In this case, there is little proof that the lawyer of XYZ colluded with FCYs counsel. For conspiracy to lie, it must not only be alleged, but it must also be proven with clear and convincing evidence. In a criminal case. the Supreme Court said of conspiracy:

There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence must be strong enough to show the community of criminal design. For conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is the product of intentionality on the part of the cohorts.It is necessary that a conspirator should have performed some overt act as a direct or indirect contribution to the execution of the crime committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it, without any active participation in the same, is not enough for purposes of conviction.

There is very little evidence to conclude that XYZs lawyer colluded with FCYs lawyer. True both lawyers are good friends. True as well that both opposed the disaffiliation of the rank-and-file employees from XYZ and their affiliation with AU. It does not follow, however, that there is already a conspiracy between the two lawyers. For failure to show a clear and convincing proof that XYZs lawyer colluded with FCYs lawyer, the latter must be exculpated from the administrative charge against him.

To summarize, the discussion above leads to the following conclusions:

(1.) Influencing the rank-and-file employees to vote for XYZ over AU during the certification election is an unfair labor practice of FCY, and thus violates the employees right to self-organization as it frustrates their free choice of bargaining representative in their negotiations with FCY;

(2.) FCYs lawyer violates the law when he advised the supervisors of FCY to commit an unfair labor practice by instructing the supervisors of FCY to influence the rank-and-file employees to vote for XYZ over AU, which makes FCYs lawyer subject for administrative liability; and

(3.) Only FCYs lawyer may be held administratively liable since there is very little evidence to show that XYZs lawyer colluded with FCYs lawyer in influencing the rank-and-file employees to vote for XYZ over AU. San Miguel Foods, Inc.-Cebu B-Meg Feed Plant v. Laguesma, G.R. No. 116172, 10 October 1996, 263 SCRA 68, 81-82.This was reiterated inLaguna Autoparts Manufacturing Corporation v. Office of the Secretary, Department of Labor and Employment, G.R. No. 157146, 29 April 2005, 457 SCRA 730, 742.

Consolidated Farms, Inc. vs. Noriel, L-47752, July 31, 1978, 84 SCRA 469, 473.

Canon 1, Code of Professional Responsibility.

Rule 1.01, Id.

Rule 1.02, Id.

Bahilidad v. People, G.R. No. 185195, March 17, 2010, 615 SCRA 597, 604.