NATIONAL MERCHANDISING CORPORATION, PETITIONER, VS. COURT OF INDUSTRIAL RELATIONS, GOODWILL LABOR ORGANIZATION-CCLU AND NAMERCO EMPLOYEES AND LABORERS ASSOCIATION (FTLO), RESPON…

This petition was filed by,the National Merchandising Corporation to
contest the correctness of the order of the Court.of Industrial
Relations (in Case No.. 857-MC), and affirmed by the court en banc on
July 21, 1961, holding that petitioner’s 8 section chiefs are minor
supervisory employees who should be included in the appropriate
Employer’s Unit, and entitled to vote in the certification election to
be conducted for the purpose of determining the proper bargaining agent
for the employees. Insofar as pertinent to the instant proceeding,
the following facts had been established:

Through a petition filed in the Court of Industrial Relations, the
National Merchandising Corporation asked for its aid in ascertaining
whether the Goodwill Labor Organization—CCLU, which had sought to
bargain collectively with it (the Company) for and in behalf of its
employees, may properly act as bargaining agent for the latter. It was
therein claimed that petitioner had in its employ 10 supervisors, 1
confidential employee, 3 salesmen, 22 office employees, and 54
mechanics, painters, carpenters, and laborers, and it doubts whether
the aforesaid union represents a majority thereof.

Respondent union answered maintaining its right to represent the
Company’s employees, and prayed the court for the holding of a
certification election after all the employees entitled to vote shall
have been determined.

The parties entered into trial solely to’determine the appropriate
unit and ‘bargaining agent for the employees. During the hearing, the
Company and the Union agreed to the holding of a certification
election, the appropriate bargaining unit or Employer Unit to be
composed of all regular and temporary employees and laborers working in
the different departments of the company, while a Casual Unit shall be
constituted by the casual employees; However, aside from the 16
officers and employees who, by reason of their managerial, supervisory
and/or confidential positions, were to be excluded from the appropriate
bargaining unit, the Company insisted in the non-inelusion therein of 8
employees allegedly performing supervisory functions, namely:

1. Comelio Vitug—Chief Mechanic, Agricultural Shop, Repairs & Maintenance Department;
2. Eufronio Atienza—Chief Mechanic, Industrial Shop, Repairs & Maintenance Department;
3. Bleardo Rodriguez—In Charge, Automotive Shop; Repairs & Maintenance Department;
4. Edilberto Enriquez—Chief Mechanic, Lambretta Shop, Repairs & Maintenance Department;,
5. Jesus Avila—Chief Welder, Welding Shop, Repairs & Maintenance Department;
6. Jose Padilla—Chief Mechanic, Motor Pool, Repairs & Maintenance Department;
7. Alejandro Justo—Chief Painter, Painting Shop, Repairs & Maintenance Department;
8. Eulogio Candelaria—Chief Carpenter, . Carpentry Shop, Repairs & Maintenance Department.

In its order of May 5, 1961, the court, finding them to be at most
minor supervisory employees who work in close association with the few
men under them, allowed their inclusion in the Employer Unit, and .
directed the Department of Labor to conduct secret-ballot-elections
among the employees to determine the exclusive bargaining
representative for the 2 groups constituting the Employer and Casual
Units.1 Hence, the institution of the instant proceeding by the
petitioner company on the sole issue of whether the 8 employees
concerned are supervisors, as defined in Section 2 (k) of Republic Act
875, which reads:.

“Sec. 2. Definition.- As used in this Act.—

“(k) ‘Supervisor’- means any person having authority
in the interest of an employer, to hire transfer, suspend, lay-off
recall, discharge, assign, recommend, or discipline other employees or responsibly to direct them, and to adjust their grievances, or
effectively to recommend such acts if, in connection with the
foregoing, the exercise of such authority is not of a merely routinary
or clerical nature but requires the use of independent judgment.’

In rejecting this claim of petitionei, also laised m the court below the trial judge took into account the following

” Alfonso Panganiban, Personal Manager; declared
that he has the direct supervision over all personal of the company;
that Vitug, Atienza, Rodriguez, Enriquez, Avila, Padilla, and
Candalaria are in charge of supervision of the work and personnel
working under them in their respective sections; that as section heads,
they can recommend the hiring, expulsion or dismissal of workers tinder
their respective shops whenever proper and necessary. No evidence,
however, was adduced with respect to Alejandro Justo;

“According
to the list of officers and employees (Exh. X-Court), Vitug has V men
under him; Atienza,’3; Rodriguez, 1; Enriquez, ; Avila, 8;
Padilla, 3; and Candelaria, 2 men all working in the Repairs and
Maintenance Department. Granting arguendo that these controverted
employees are group or unit heads exercising such functions and
recommendatory prerogatives, yet we believe that that alone do riot)
encompass them within the meaning and definition of ‘supervisor’.
According to the evidence, they are directly under the Service Manager,
JustoSycip, who gives work assignments to all persqnncl under the
Repairs and Maintenance Department. As admitted by the Company,, they
have no authority to hire,. promote, transfer, suspend or fire
employees. As regards their alleged recommendatory powers, it is
correct to state that the same are subject to evaluation, review and
final approval by the department, head, and other higher executive,
of-the company. There was, however, no showing that such .
recommendator’y,(‘Prerogatii’es had, been exercised by these employees
effectively and of their own independent judgment. The Company failed
to adduce evidence—may; even a superficial attempt-—to show concrete
instances that these cor.trn-‘ verted employees ever exercised such
alleged recommendatory powers. As a matter of fact, Personnel Manager
Panganiban, on cross’ examination, admitted that he had no occasion to
know of anyone who was recommended by the said employees for hiring,
expulsion, separation, transfer, reprimand; or for increase in salary
to the management. This must be so, because according- to the
unrebutted testir mony of Cornelia Vitug, although he sometimes makes
work assignment of the four or five mechanics.under him, he has not
hired or firecl nor. recommended anybody for hiring or firing and that
he Tiad reprimanded nobody because he has no power of reprimand. It may
be noteworthy to note that Vitug, who is claimed to be a supervisor for
being allegedly a section head, is only receiving’ P200.00, whereas, a
mechanic, under him, Federico Ealbalona, is receiving P230.00 a month.
This fact was never denied or contradicted by the Company.”

Petitioner now contends that neither the absence of power to hire,
discharge, promote, transfer, discipline, etc. subordinate
personnel,”nor the laqk of the use thereof, if present, is
determinative of the supervisory status or classification of an
employee under the Industrial Peace Act.

It is proposed that to be classified as a supervisor, it would.be
sufficient that he has the power to recommend the hiring, dismissal,
promotion, disciplining, etc. of personnel under him or responsibly
direct them, which the eight (8) employees involved in the case
allegedly have.

It is to be noted, however, that,the power to recommend, in order
to, qualify an employee as a supervisor, must not only be effective but
the exercise of such authority should not be merely of a routinary or
clerical nature but should require the use of independent judgpient. In
the case at bar, it appears in the first place that, as found by the
trial court, there are no clear appointments in favor of the employees
in question including the alleged power to recommend; and while Alfonso
Panganiban,, Personnel Manager of the petitioner company, declared that
these employees as section heads could recommend the hiring, expulsion
or dismissal of th.e workers under their respective shops, the fact
remains that as admitted by him, no such recommendations have ever
been made by them. There is also evidence that other employees have
been appointed, transferred, or discharged and laid off without any.
recommendation of the employees involved in these proceedings.
Furthermore, such recommendatory powers are subject to evaluation,
review and final action by the department heads and other higher
executives of the company. It, therefore, appears that the conclusion
of the trial court that the authority to recommend even if present, is
not effective and not an exercise of independent judgment as required
by law, is not incorrect.

Neither is it borne by the records that the employees herein
involved can responsibly direct those under them, for the evidence
discloses that the service, manager, Justo Sycip, is the one who gives
work.assignments to all personnel Under the Repairs and Maintenance
Department m which, the employees herein concerned are working. The
mere designation of these employees as chief mechanic, chief welder,
chief painter and chief carpenter doe not indicate more than the fact
that they are the number one mechanic, welder, painter or carpenter
among the many of the same category.

Wherefore, finding no error in the order and resolution of the court
en banc subject of this proceeding, the same are hereby affirmed, with
costs against the petitioner. The preliminary injunction herein issued
is dissolved. So ordered.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala, and Makalintal, JJ., concur.

 

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^[1] This order was affirmed by resolution of the court en banc of July 21, 1961).