G.R. No. L-14280. May 30, 1960
JUAN YSMAEL & COMPANY, INC., PETITIONER, VS. THE COURT OF INDUSTRIAL RELATIONS, THE HONORABLE JOSE S. BAUTISTA, ARSENIO I. MARTINEZ, BALTAZAR M. VILLANUEVA, AND EMILIANO C. TABI…
CONCEPCION, J.:
as the Company, from an order of the Presiding Judge of the Court of
Industrial Relations, which was affirmed by the Court sitting in banc,
certifying the Ysmael Steel Salemen’s Union, hereafter referred to as
the petitioning Union, as the sole and exclusive bargaining
representative of all the salesmen of the Company, with all the rights
and obligations imposed by law.
On November 27, 1957, the
petitioning Union, a legitimate labor organization duly registered with
the Department of Labor, filed a petition praying for the aforesaid
certification, upon the ground that it is a labor organization composed
of all the salesmen working for the Ysmael Steel Manufacturing Co.,
which is operated by the Company, as a subsidiary thereof, both of
which are employers of the aforementioned salesmen; that there are in
the Company two (2) other labor unions, namely, the Ysmael Steel Labor
Organization (PAFLU), the membership of which is composed mainly of
manual factory workers (non-supervisors), and the Ysmael Steel
Employees Union, the membership of which is composed of supervisors,
non-supervisors who are technical employees, office non-technical
employees and clerical factory workers, and that the members of
petitioning Union are not included in or represented by any of said two
(2) unions in their collective bargaining agreement with the Company,
for the economic factors affecting the members of petitioning Union are
different and they constitute a separate and distinct union for an
appropriate bargaining unit. The Company filed an answer objecting to
the petition upon several grounds, which were, in effect, overruled by
the Court in the order appealed from.
The Company assails
the same as null and void for alleged want of a clear and distinct
statement of the law and facts on which it is based, in violation, it
is claimed, of Article VIII, Section 12, of the Constitution. The
pertinent part of the order appealed from reads as follows:
“At
the hearing of this case on February 11, March 12, 26 and May 5, 1958,
the following facts appear to have been established in evidence: That
the petitioning Union is duly registered by the Department of Labor and
is, therefore, a legitimate labor organization within the meaning of
Section 2(f) of the Act; that the Company is a corporation
engaged in the manufacture of steel equipment, machines, etc., owned
and operated by the Juan Ysmael & Company, Inc.; that at the time
of the instant petition for certification was filed, there were twenty
(20) salesmen or commission agents working for the Company, but that as
of March 26, 1958, only fourteen (14) of them were left; and that
neither of the two unions existing in the Company, namely the Ysmael
Steel Labor Organization (PAFLU) and the Ysmael Steel Employees’ Union,
represents the members of the petitioning Union in any of their
respective collective bargaining agreement with the Company.“Furthermore,
after a careful examination of the records, particularly the respective
memoranda filed by both of the petitioning Union and the Company, and
after a mature consideration of all the proofs submitted in evidence in
this case by both parties, the Court believes and so holds that there
exists an employer-employee relationship between the members of the
petitioning Union and the Company; that all the salesmen working with
the Company may constitute a distinct and separate appropriate unit for
bargaining purposes with the Company; and that the members of the
petitioning Union constitute the majority of the salesmen working for
the Company. The certification of the petitioning Union, therefore, as
the sole and exclusive bargaining representative of all the salesmen
working with the Company is in order.”
The
foregoing findings constitute a substantial compliance with the
constitutional mandate invoked by the Company. In any event, this Court
held in Talabon vs. Provincial Warden (78 Phil., 599; 44 Off. Gaz.
4326) that failure to comply with said requirement of our fundamental
law does not nullify or affect the validity of the decision or order in
question.
The main issue is whether the members of
petitioning Union are employees of the Company, for purposes of
certification of the former as the sole and exclusive bargaining
representative of all the salesmen of the latter. The Company maintains
the negative upon the ground that the members of petitioning Union are
mere commission agents or sales representatives, whose form of
selection and engagement is different from that of the employees of the
Company, for unlike such employees, commission agents are not required
to undergo physical examination, to submit a police clearance, and to
punch the bundy clock, and are not provided with identification cards.
It is further urged that commission agents are paid neither wages nor
salaries, but are granted commissions, the amount of which depends on
their sales, and that their conduct as agents is not subject to the
control or supervision of the Company, which, moreover, has no power of
dismissal over them.
The aforementioned difference in the
manner of “selection and engagement” does not prove, however, the
alleged absence of employer-employee relationship. Most business
enterprises have employees of different classes, necessarily requiring
different methods of selection and contracts of services of various
types, without detracting from the existence of said relationship.
Besides, the very evidence for the Company shows that commission agents
are dispensed from physical examination and from punching the bundy
clock because their duties are extraneous to the factory work and they
have no fixed hours to contact their customers.
Again, the records disclose the following facts, among others:
-
One who wishes to be a commission agent must file an application
therefor. Then he is given a two-month probationary period, within
which technical men of the Company train him. On the basis of his
performance during said period, the Company, thereafter, decides
whether or not he will be taken as a regular commission agent. - His duties as such include the following: (a)
One hundred per centum (100%) “loyalty to the Company”, and “disloyalty
of any form or free-lancing for any other company during their tour of
duty, will be sufficient cause for cutting allowances and withdrawal of
the authority to sell for the Company.” (b) He must check in at
8:00 a.m., to “report daily all visits made”, and “any
misrepresentation with regard to coverage will be sufficient cause for
cutting allowances.” He was, also, required, before, to check in at
4:00 p.m., but, subsequently, this requirement was eliminated. (c)
He “must list in his daily report all items offered to customers, plus
results.” (d) He “has to visit his accounts at least twice every
month”, and “if he fails to visit an account within two (2) months, he
shall automatically lose any claim to his account.” -
The Company directs the details of the work of making sales, through a
sales manager, under whose authority commission agents are. -
As the agents or salesmen report for work each morning, they are given
transportation allowances of P1.50 or P2.00 each. They have, also, a
drawing allowance, the amount of which varies depending upon past
performances, deductible from future commissions. - The Company exercises the power of dismissal: (a)
by cutting off these allowances, when the agent makes a
misrepresentation with regards to coverage or report on daily visits
made, or is guilty of disloyalty in any form or free-lancing for any
other company during his tour of duty; (b) by withdrawing the
authority to sell in case of such disloyalty or free-lancing, or when
an agent fails to make any reasonably good sale within a reasonable
period; and (c) by forcing him to resign for any compelling
reason, as the company has done in the case of commission agents Jose
S. Esquivias, Melecio Data and Felicidad Sinope. -
The company has adopted the foregoing norms unilaterally—generally by
the promulgation of pertinent rules—without the intervention or consent
of the agents, and without any objection on their part. Both parties
have thereby indicated that the Company has full authority to determine
the manner and conditions under which the agents shall perform their
duties. In other words, the Company has control over the conduct of its
salesmen or agents. Thus, absence of any duty on their part to keep
regular office hours, submit a police clearance and punch the bundy
clock, and of other additional duties, is due, not to lack of power or authority to impose the same, but merely to a policy
of the management which deems it, for the time being, either
unnecessary or inexpedient or both, owing to the peculiar nature of the
task of commission agents. - All
sales of products of Ysmael Steel Manufacturing Company are seemingly
effected through the aforementioned salesmen or commission agents.
There are no other persons, apart from the sales manager and sales
supervisor of the Company, charged with the duty to sell therefor said
products. - The salesmen or agents
in question are, according to the assistant general manager of the
Company, registered as members of the Social Security System,
established by Republic Act No. 1161, as amended by Republic Act No.
1792, sections 9 and 8(d) of which read:
“* * * * * * *
“Sec. 9.—Compulsory coverage.—Coverage
in the System shall be compulsory upon all employees between the ages
of sixteen and sixty years, inclusive, if they have been for at least
six months in the service of an employer who is a member of the System
* * *.”“Sec. 8.—Terms defined.—For the purposes of this Act, the following shall, unless the context indicates otherwise, have the following meanings:
“(d) Employee.—Any
person who performs services for an ’employer’ in which either or both
mental and physical efforts are used and who receives compensation for
such services.”
Pursuant to section 2, paragraphs (c) and (d), of Republic Act No. 875:
“An employer includes any person acting in the interest of an employer,
directly or indirectly, but shall not include any labor organization
(otherwise than when acting as an employer) or anyone acting in the
capacity of officer or agent of such labor organization.” (Sec. 2[c],
Rep. Act No. 875.)“The term ’employee’ shall include any
employee and shall not be limited to the employee of a particular
employer unless the Act explicitly states otherwise and shall include
any individual whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair
labor practice and who has not obtained any other substantially
equivalent and regular employment.” (Sec. 2[d], id.) In the
light of the foregoing, it is our considered opinion that the lower
court did not err in holding that the members of petitioning union are
employees of the Company—within the purview of the terms “employer” and
“employee’ as denned in the Industrial Peace Act—for purposes of
certification of said union as the bargaining representative of: its
salesmen or commission agents.
It is next
argued by the Company that said members of petitioning Union do not
constitute a majority of its salesmen or commission agents. This
pretense is, however, contrary to the above quoted findings of fact of
the lower court, which, admittedly, are borne out by Exhibit C, a list
of the salesmen or agents affiliated to petitioning Union. Hence, said
findings may not be disturbed in this proceeding for review by
certiorari. (Rule 44, Sec. 2, Rules of Court; Sec. 14, Com. Act No.
103, Philippine Refining Co. Workers’ Union vs. Philippine
Refining Co., Inc., 80 Phil., 531; 45 Off. Gaz., 159). Besides,
although the Company now says that said list, Exhibit C, is not
correct, the fact is that, in its answer, filed with the lower court,
it merely averred that it is “not certain” that the members of
petitioning Union constitute a majority of the salesmen or commission
agents of said Company. At any rate, the record shows that the same had
twenty (20) salesmen or commission agents when this case was
instituted; that, at the time of the hearing in the lower court, there
were only fourteen (14) of them working for the Company; and that, with
the exception of one (1) of them, the remaining thirteen (13) salesmen
or commission agents are members of petitioning Union, and there is no
evidence to the contrary. The Company doubts the accuracy of the
finding to this effect in the order appealed from simply because only
three (3) of these salesmen or agents appeared at the aforementioned
hearing. Apart from the fact they were not required to be present at
said hearing, the reluctance of employees or agents to do anything that
may antagonize the employer, or may give occasion for antagonism, is
readily understandable.
Wherefore, the order appealed from
is hereby affirmed, with costs against petitioner herein, Juan Ysmael
& Co., Inc. It is so ordered.
Paras, C. J., Bengzon, Bautista Angelo, Labrador, Barrera, and Gutierrez David, JJ., concur.
Montemayor, J., reserves his vote.
Reyes, J.B.L., and Endencia, JJ., took no part.