LVN PICTURES, INC., PETITIONER AND APPELLANT VS. PHILIPPINE MUSICIANS GUILD (FFW) AND COURT OF INDUSTRIAL RELATIONS, RESPONDENTS AND APPELLEES. SAMPAGUITA PICTURES, INC., PETITI…

Petitioners herein, LVN Pictures, Inc. and Sampaguita Pictures, Inc.,
seek a review by certiorari of an order of the Court of Industrial
Relations, in Case No. 306-MC thereof, certifying the Philippine
Musicians Guild (FFW), petitioner therein and respondent herein, as the
sole and exclusive bargaining agency of all musicians working with said
companies, as well as with the Premiere Productions, Inc., which has
not appealed. The appeal of LVN Pictures, Inc., has been docketed as G.
R. No. L-12582, whereas G. R. No. L-12598 is the appeal of Sampaguita
Pictures, Inc. Involving as they do the same order, the two cases have
been jointly heard in this Court, and will similarly be disposed of.

In its petition in the lower court, the Philippine Musicians Guild
(FFW), hereafter referred to as the Guild, averred that it is a duly
registered legitimate labor organization; that LVN Pictures, Inc.,
Sampaguita Pictures, Inc., and Premiere Productions, Inc. are
corporations, duly organized under the Philippine laws, engaged in the
making of motion pictures and in the processing and distribution
thereof; that said companies employ musicians for the purpose of making
music recordings for title music, background music, musical numbers,
finale music and other incidental music, without which a motion picture
is incomplete; that ninety-five (95%) percent of all the musicians
playing for the musical recording of said companies are members of the
Guild; and that the same has no knowledge of the existence of any other
legitimate labor organization representing musicians in said companies.
Premised upon these allegations, the Guild prayed that it be certified
as the sole and exclusive bargaining agency for all musicians working
in the aforementioned companies.

In their respective
answers, the latter denied that they have any musicians as employees,
and alleged that the musical numbers in the films of the companies are
furnished by independent contractors. The lower court, however,
rejected this pretense and sustained the theory of the Guild, with the
result already adverted to. A reconsideration of the order complained
of having been denied by the Court en banc, LVN Pictures, Inc. and Sampaguita Pictures, Inc. filed these petitions for review by certiorari.

Apart from impugning the conclusion of the lower court oil the status
of the Guild members as alleged employees of the film companies, the
LVN Pictures, Inc., maintains that a petition for certification cannot
be entertained when the existence of employer-employee relationship
between the parties is contested. However, this claim is neither borne
out by any legal provision nor supported by any authority. So long as,
after due hearing, the parties are found to bear said relationship, as
in the case at bar, it is proper to pass upon the merits of the
petition for certification.

It is next urged that a
certification is improper in the present case, because “(a) the
petition does not allege and no evidence was presented that the alleged
musicians-employees of the respondents constitute a proper bargaining
unit, and (b) said alleged musicians-employees represent a majority of
the other numerous employees of the film companies constituting a
proper bargaining unit under section 12 (a) of Republic Act No. 875.”

The absence of an express allegation that the members of the Guild
constitute a proper bargaining unit is not fatal in a certification
proceeding, for the same is not a “litigation” in the sense in which
this term is commonly understood, but a mere investigation of a
non-adversary, fact finding character, in which the investigating
agency plays the part of a disinterested investigator seeking merely to
ascertain the desires of employees as to the matter of their
representation. In connection therewith, the court enjoys a wide
discretion in determining the procedure necessary to insure the fair
and free choice of bargaining representatives by employees.^[1]
Moreover, it is alleged in the petition that the Guild is a duly
registered legitimate labor organization and that ninety-five (95%) per
cent of the musicians playing for all the musical recordings of the
film companies involving in these cases are members of the Guild.
Although, in its answer, the LVN Pictures, Inc. denied both
allegations, it appears that, at the hearing in the lower court, it was
merely the status of the musicians as its employees that the film
companies really contested. Besides, the substantial difference between
the work performed by said musicians and that of other persons who
participate in the production of a film, and the peculiar circumstances
under which the services of the former are engaged and rendered,
suffice to show that they constitute a proper bargaining unit.

At this juncture, it should be noted that the action of the lower court
in deciding upon an appropriate unit for collective bargaining purposes
is discretionary (N.L.R.B. vs. May Dept. Store Co., 66 Sup. Ct.
468, 90 L. ed. 145) and that its judgment in this respect is entitled
to almost complete finality, unless its action is arbitrary or
capricious (Marshall Field & Co. vs. N.L.R.B. [CCA. 1943], 135 F. 2d. 391), which is far from being so in the cases at bar.

Again, the Guild seeks to be, and was, certified as the sole and exclusive bargaining agency for the musicians
working in the aforesaid film companies. It does not intend to
represent the other employees therein. Hence, it was not necessary for
the Guild to allege that its members constitute a majority of all the
employees of said film companies, including those who are not musicians.

The real issue in these cases, is whether or not the musicians in
question are employees of the film companies. In this connection the
lower court had the following to say:

“As a
normal and usual course of procedure employed by the companies when a
picture is to be made, the producer invariably chooses, from the
musical directors, one who will furnish the musical background for a
film. A price is agreed upon verbally between the producer and musical
director for the cost of furnishing such musical background. Thus, the
musical director may compose his own music specially written for or
adapted to the picture. He engages his own men and pays the
corresponding compensation of the musicians under him.

“When
the music is ready for recording, the musicians are summoned through
‘call slips’ in the name of the film company (Exh. ‘D’), which show the
name of the musician, his musical instrument, and the date, time and
place where he will be picked up by the truck of the film company. The
film company provides the studio for the use of the musicians for that
particular recording. The musicians are also provided transportation to
and from the studio by the company. Similarly, the company furnishes
them meals at dinner time.

“During the recording sessions,
the motion picture director, who is an employee of the company,
supervises the recording of the musicians and tells what to do in every
detail. He solely directs the performance of the musicians before the
camera. As director, he supervises the performance of all the actors
including the musicians who appear in the scenes so that in the actual
performance to be shown on the screen, the musical director’s
intervention has stopped.

“And even in the recording
sessions and during the actual shooting of a scene the technicians,
soundmen and other employees of the company assist in the operation.
Hence, the work of the musicians, is an integral part of the entire
motion picture since they not only furnish the music but are also
called upon to appear in the finished picture.

“The
question to he determined next is what legal relationship exist between
the musicians and the company in the light of the foregoing facts.

“We
are thus called upon to apply R. A. Act No. 875, which is substantially
the same as and patterned after the Wagner Act and the Taft-Hartley Law
of the United States. Hence, reference to decisions of American Courts
on these laws on the point-at-issue is called for.

“Statutes are to be construed in the light of purposes to be achieved and the evils sought to be remedied. (U.S. vs. American Tracking Association, 310 U.S. 534, 84 L. ed. 1345.)

“In the case of National Labor Relations Board vs.
Hearst Publications, 322, U.S. 111, the United States Supreme Court
said the Wagner Act was designed to avert the ‘substantial obstruction
to the free flow of commerce which results from strikes and other forms
of industrial unrest by eliminating the causes of the unrest. Strikes
and industrial unrest result from the refusal of employers’ to bargain
collectively and the inability of workers to bargain successfully for
improvement in their working conditions. Hence, the purposes of the Act
are to encourage collective bargaining and to remedy the workers’
inability to bargaining power, by protecting the exercise of full
freedom, of association and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions of
their employment.’

“The mischief at which the Act is aimed
and the remedies it offers are not confined exclusively to ’employees’
within the traditional legal distinctions, separating them from
‘independent contractor.’ Myriad forms of service relationship, with
infinite and subtle variations in the term of employment, blanket the
nation’s economy. Some are within this Act, others beyond its coverage.
Large numbers will fall clearly on one side or on the other, by
whatever test may be applied. Inequality of bargaining power in
controversies of their wages, hours and working conditions may
characterize the status of one group as of the other. The former, when
acting alone may be as helpless in dealing with the employer ‘as
dependent on his daily wage and as unable to resist arbitrary and
unfair treatment as the latter.’

“To eliminate the causes
of labor dispute and industrial strike, Congress thought it necessary
to create a balance of forces in certain types of economic
relationship. Congress recognized those economic relationships cannot
be fitted neatly into the containers designated as ’employee’ and
’employer’. Employers and employees not in proximate relationship may
be drawn into common controversies by economic forces and that the very
dispute sought to be avoided might involve employees’ who are at times
brought into an economic relation ship with ’employers’, who are not
their ’employers’. In this light, the language of the Act’s definition
of ’employee’ or ’employer’ should be determined broadly in doubtful
situations, by underlying economic facts rather than technically and
exclusively established legal classifications. (NLRB vs. Blount, 131 F [2d] 585.)

“In
other words, the scope of the term ’employee’ must be understood with
reference to the purposes of the Act and the facts involved in the
economic relationship. Where all the conditions of relation require
protection, protection ought to be given.

“By declaring a
worker an employee of the person for whom he works and by recognizing
and protecting his rights as such, we eliminate the cause of industrial
unrest and consequently we promote industrial peace, because we enable
him to negotiate an agreement which will settle disputes regarding
conditions of employment, through the process of collective bargaining.

“The
statutory definition of the word ’employee’ is of wide scope. As used
in the Act, the term embraces ‘any employee’ that is all employees in
the conventional as well as in the” legal sense except those excluded
by express provision. (Connor Lumber Co. 11 NLRB, 776.)

“It
is the purpose and policy of Republic Act 875; (a) To eliminate the
causes of industrial unrest by protecting the exercise by employees of
their right to self-organization for the purpose of collective
bargaining, (b) To promote sound stable industrial peace and the
advancement of the general welfare, and the best interests of employers
and employees by the settlement of issues respecting terms and
conditions of employment through the process of collective bargaining
between employers and representatives of their employees.

“The
primary consideration is whether the declared policy and purpose of the
Act can be effectuated by securing for the individual worker the rights
and protection guaranteed by the Act. The matter is not conclusively
determined by a contract which purports to establish the status of the
worker, not as an employee.

“The work of the musical
director and musicians is a functional and integral part of the
enterprise performed at the same studio substantially under the
direction and control of the company.

“In other words, to
determine whether a person who performs work for another is the
latter’s employee or an independent contractor, the National Labor
Relations Board relies on “the right of control’ test. Under this test
an employer-employee relationship exists where the person for whom the
services, are performed reserves the right to control not only the end
to be achieved, but also the manner and means to be used in reaching
the end. (United Insurance Company, 108, NLRB No. 115.)

“Thus, in said similar case of Connor Lumber Company, the Supreme Court said:

‘We find that the independent contractors and persons working under
them are ’employees’ within the meaning of Section 2 (3) of its Act.
However, we are of the opinion that the independent contractors have
sufficient authority over the persons working under their immediate
supervision to warrant their exclusion from the unit. We shall include in the unit the employees working under the supervision of the independent contractors, but exclude the contractors.’

“Notwithstanding
that the employees are called independent contractors, the Board will
hold them to be employees under the Act where the extent of the
employer’s control over them indicates that the relationship is in
reality one of employment. (John Hancock life Insurance Co., 2375-D,
1940, Teller, Labor Dispute Collective Bargaining, Vol.
…………….).

“The right of control of the film
company over the musicians is shown (1) by calling the musicians
through ‘call slips’ in the name of the company; (2) by arranging
schedules in its studio for recording sessions; (3) by furnishing
transportation and meals to musicians; and (4) by supervising and
directing in detail, through the motion picture director, the
performance of the musicians before the camera, in order to suit the
music they are playing to the picture which is being flashed on the
screen.

“Thus, in application of Philippine statutes and
pertinent decision of the United States courts on the matter to the
facts established in this case, we cannot but conclude that to
effectuate the policies of the Act and by virtue of the ‘right of
control’ test, the members of the Philippine Musicians Guild are
employees of the three film companies and, therefore, entitled to right
of collective bargaining under Republic Act No. 875.

“In
view of the fact that the three (3) film companies did not question the
union’s majority, the Philippine Musicians Guild is hereby declared as
the sole collective bargaining representative for all the musicians
employed by the film companies.”

We are
fully in agreement with the foregoing conclusion and the reasons given
in support thereof. Both are substantially in line with the spirit of
our decision in Maligaya Ship Watchmen Agency vs. Associated
Watchmen and Security Union, 103 Phil., 920; 55 Off. Gaz., (52) 10681.
In fact, the contention of the employers in the Maligaya cases, to the
effect that they had dealt with independent contractors, was stronger
than that of the film companies in these cases. The third parties with
whom the management and workers contracted in the Maligaya cases were
agencies registered with the Bureau of Commerce and duly licensed by the City of Manila to engage in the business of supplying watchmen to steamship companies, with permits to engage in said business issued by the City Mayor and the Collector of Customs. In the cases at bar, the musical directors with whom the film companies claim to have dealt with had nothing
comparable to the business standing of said watchmen agencies. In this
respect, the status of said musical directors is analogous to that of
the alleged independent contractor in Caro vs. Rilloraza, 102 Phil., 61, with the particularity that the Caro case involved the enforcement of the liability
of an employer under the Workmen’s Compensation Act, whereas the cases
before us are merely concerned with the right of the Guild to represent
the musicians as a collective bargaining unit. Hence, there is less
reason to be legalistic and technical in these cases, than in the Caro
case.

Herein petitioners-appellants cite, in support of their appeal, the cases of Sunripe Coconut Product Co., Inc. vs.
CIR, 83 Phil., 518; 46 Off. Gaz., 5506, 5509; Philippine Manufacturing
Co. vs. Santos Vda. de Geronimo, 96 Phil., 276; Viana vs. Al Lagadan, 99 Phil., 408; 54 Off. Gaz., (3) 644, and Josefa Vda. de Cruz vs.
The Manila Hotel Co., 101 Phil., 358; 53 Off. Gaz., 8540; Instead of
favoring the theory of said petitioners-appellants, the case of the
Sunripe Coconut Product Co., Inc. is authority for herein
respondents-appellees. It was held that, although engaged as
piece-workers, under the “pakiao” system, the “parers” and “shellers”
involved in that case were, not independent contractors, but employees
of said company, because “the requirement imposed on the ‘parers’ to
the effect that ‘the nuts are pared whole or that there is not much
meat wasted’, in effect limits or controls the means or details by which said workers are to accomplish their services“—as in the cases before us.

The nature of the relation between the parties was not settled in the
Viana case, the same having been remanded to the Workmen’s Compensation
Commission for further evidence.

The case of the Philippine
Manufacturing Co. involved a contract between said company and Eliano
Garcia, who undertook to paint a tank of the former. Garcia, in turn,
engaged the services of Arcadio Geronimo, a laborer, who fell while
painting the tank and died in consequence of the injuries thus
sustained by him. Inasmuch as the company was engaged in the
manufacture of soap, vegetable, lard, cooking oil and margarine, it was
held that the connection between its business and the painting
aforementioned was purely casual; that Eliano Garcia was an
independent contractor; that Geronimo was not an employee of the
company; and that the latter was not bound, therefore, to pay the
compensation provided in the Workmen’s Compensation Act. Unlike the
Philippine Manufacturing case, the relation between the business of
herein petitioners-appellants and the work of the musicians in question
is not casual. As held in the order appealed from—which, in this
respect, is not contested by herein petitioners-appellants—”the work of
the musicians is an integral part of the entire motion picture.” Indeed, one can hardly find modern films without music therein. Hence, in the Caro case (supra)
the owner and operator of buildings for rent was held bound to pay the
indemnity prescribed in the Workmen’s Compensation Act for the injury
suffered by a carpenter while working as such in one of said buildings
even though his services had been allegedly engaged by a third party
who had directly contracted with said owner. In other words, the repair
work had not merely a casual connection with the business of said
owner. It was a necessary incident thereof, just as music is in the
production of motion pictures.

The case of Josefa Vda. de Cruz vs.
The Manila Hotel Co., 101 Phil., 358; 63 Off. Gaz., 8540, differs
materially from the present cases. It involved the interpretation of
Republic Act No, 660, which amends the law creating and establishing
the Government Service Insurance System. No labor law was sought to be
construed in that case. In fact, the same was originally heard in the
Court of First Instance of Manila, the decision of which was, on
appeal, affirmed by the Supreme Court. The meaning or scope of the term
“employee”, as used in the Industrial Peace Act (Republic Act No. 875)
was not touched therein.

Moreover, the subject-matter of
said case was a contract between the management of the Manila Hotel, on
the one hand, and Tirso Cruz, on the other, whereby the latter agreed
to furnish the former the services of his orchestra, consisting of 15
musicians, including Tirso Cruz, “from 7:30 p.m. to closing time
daily”. In the language of this Court in that case, “what pieces the
orchestra shall play, and how the music shall be arranged or directed,
the intervals and other details—such are left to the leader’s discretion.”

This is not the situation obtaining in the cases at bar. The musical
directors above referred to have no such control over the musicians
involved in the present case. Said musical directors control neither
the music to be played, nor the musicians playing it. The film
companies summon the musicians to work, through the musical directors.
The film companies, through the musical directors, fix the date, the
time and the place of work. The film companies, not the musical
directors, provide the transportation to and from the studio. The film
companies furnish meal at dinner time.

What is more—in the language of the order appealed from—”during the recording sessions, the motion picture director who is an employee of the company”—not the musical director—”supervises the recording of the musicians and tells them what to do in every detail.” The motion picture director—not the musical director—”solely directs the performance of the musicians before the camera“. The motion picture director “supervises the performance of all the actors, including the musicians who appear in the scenes, so that in the actual performance to be shown on the screen, the musical director’s intervention has stopped.”
Or, as testified to in the lower court, “the movie director tells the
musical director what to do; tells the music to be cut or tells
additional music in this part or he eliminates the entire music he does
not (want) or he may want more drums or more violin or piano, as the
case may be”. The movie director “directly controls the
activities of the musicians”. He “says he wants more drums and the
drummer plays more” or “if he wants more violin or he does not like
that”.

It is well settled that “an employer-employee
relationship exists * * * where the person for whom the services are
performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end * *.” (Alabama Highway Express Co. vs.
Local, 612, 108 S. 2d 350.) The decisive nature of said control over
the “means to be used”, is illustrated in the case of Gilchrist Timber
Co., et al., Local No. 2530 (73 NLRB No. 210, pp. 1197, 1199-1201), in
which, by reason of said control, the employer-employee relationship
was held to exist between the management and the workers,
notwithstanding the intervention of an alleged independent contractor, who had, and exercised, the power to hire and fire said workers.
The aforementioned control over “the means to be used” in reaching the
desired end is possessed and exercised by the film companies over the
musicians in the cases before us.

Wherefore, the order appealed from is hereby affirmed, with costs against petitioners herein. It is so ordered.

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

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^[1]
N.L.R.B. vs. Botany Worsted Mills, 319 U. S. 751. 87 L. ed. 1705;
Southern S.S. Co. vs. N.L.R.B., 316 U.S. 31, 86 L. ed 1246; N.L.R.B.
vs. A. J. Tower Co., 66 Sup. Ct. 1011;

“* * * ‘certification’ and ‘de-certification’ proceedings under this section of the Act are a non-adversary
nature. Such proceedings are not predicated upon an allegation of
misconduct requiring relief, but, rather, are merely of an
inquisitorial nature. The Board’s functions are not judicial in nature,
but are merely of an investigative character. The object of the
proceedings is not the decision of an alleged commission of wrongs nor
asserted deprivation of rights but merely the determination of proper
bargaining units and the ascertainment of the will and choice of the
employees in respect of the selection of a bargaining representative.
The determination of the proceedings does not entail the entry of
remedial orders to redress rights, but culminates solely in an official
designation of bargaining units and an affirmation of the employees’
expressed choice of bargaining agent.” (Rothenberg on Labor Relations,
p. 514.