Dismissed Employees and Blank Ballots: Certification Election Rules Clarified

The Supreme Court recently settled important questions about certification elections in Mercury Drug Corporation (Distribution Center) Employees Union-FFW v. Mercury Drug Corporation (G.R. No. 263812, February 24, 2026). The case clarifies two rules that affect every union election: when a dismissed employee may still vote, and how blank or unfilled ballots are counted. These rules determine whether a union wins the right to represent workers, making them essential knowledge for both labor unions and employers.

The Dispute

The Mercury Drug Corporation Employees Union sought to be certified as the sole bargaining agent for about 109 rank-and-file employees at the company's Libis, Quezon City distribution center. A certification election was held on June 11, 2018, with 99 eligible voters. The results showed 45 votes for the union and 44 for "No Union," with four spoiled ballots and one segregated ballot.

The segregated ballot belonged to Bernabe Valencia Jr., the union president. He had been dismissed from employment on June 2, 2018, just nine days before the election. Valencia filed a Notice of Strike with the National Conciliation and Mediation Board (NCMB) on June 7, 2018, but did not file an illegal dismissal case with the National Labor Relations Commission (NLRC) until February 2019.

The union argued that Valencia's Notice of Strike sufficiently contested his dismissal, making him eligible to vote. The company disagreed, and the dispute reached the Supreme Court.

When Can a Dismissed Employee Vote?

The Court applied the rules on certification elections issued by the Department of Labor and Employment under DOLE Department Order No. 40-03, as amended. Under these rules, a dismissed employee may vote in a certification election if the legality of the dismissal was contested in a forum of appropriate jurisdiction at the time the election order was issued. The exact text of this provision is not reproduced in the library consulted for this article, but the Supreme Court applied it directly to the facts.

The key question was whether filing a Notice of Strike with the NCMB qualifies as contesting a dismissal. The Court answered no.

Under Article 224 of the Labor Code, labor arbiters of the NLRC have original and exclusive jurisdiction over termination disputes. A Notice of Strike, by contrast, is simply a notification to the NCMB of an intention to strike because of alleged unfair labor practices or a deadlock in collective bargaining negotiations. It cannot substitute for a proper illegal dismissal case before the labor arbiter.

The Court emphasized that a dismissal for violation of company rules is a termination dispute, not an unfair labor practice. The alleged act must have a proximate connection to the exercise of self-organization, collective bargaining, or observance of a collective bargaining agreement to qualify as an unfair labor practice. A simple dismissal for violating company rules does not meet this standard.

How Are Blank Ballots Counted?

The Court also clarified the treatment of blank or unfilled ballots. Under DOLE Department Order No. 40-I-15, which amended the earlier rules, blank ballots are now considered abstentions—valid ballots cast by eligible voters. They are not negative votes, but they count in determining whether a valid election occurred. The exact definitional text of this provision is not reproduced in the library consulted for this article, but the Court applied it directly.

The union argued that abstentions should count only for determining whether a majority of eligible voters participated, but not for computing the majority of valid votes cast. The Court rejected this interpretation as unreasonable. Once a ballot counts for the first majority requirement, it must also count for the second.

This matters because of the "double majority rule" under Articles 267 and 268 of the Labor Code. First, at least a majority of all eligible voters must cast ballots for the election to be valid. Second, a union must receive the majority of valid votes cast to be certified.

The Outcome

With Valencia's ballot excluded and the two blank ballots counted as abstentions, there were 91 valid votes. The union received only 45 votes, short of the 46 needed for a simple majority. Even if Valencia's ballot were counted, the total would rise to 92, requiring 47 votes—and the union would still have only 46.

The Court also addressed procedural issues, noting that the union failed to disclose a related case in its certification against forum shopping. While the omission did not appear willful, the Court reminded parties that the disclosure requirement is mandatory.

Practical Takeaways

• Dismissed employees must contest their dismissal before the NLRC to remain eligible to vote in certification elections. A Notice of Strike with the NCMB does not suffice.
• Timing matters. The contest must be filed in the proper forum at the time the election order is issued, not months later.
• Blank ballots count as valid votes for purposes of the double majority rule. They are abstentions, not spoiled ballots, and they affect the majority threshold.
• Unions must carefully compute the required majority before claiming victory. Including abstentions can raise the threshold needed for certification.
• Parties must disclose related cases in their certification against forum shopping, even if the omission is not deliberate.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.