KIMBERLY INDEPENDENT LABOR UNION FOR SOLIDARITY, ACTIVISM AND NATIONALISM-ORGANIZED LABOR ASSOCIATION IN LINE INDUSTRIES AND AGRICULTURE (KILUSAN-OLALIA), ROQUE JIMENEZ, MARIO C…

Before us are two consolidated petitions for certiorari
filed by the above-named petitioner union (hereinafter referred to as
KILUSAN-OLALIA, for conciseness) and individual complainants therein, to wit
(a) G.R. No. 77629, which seeks to reverse and set aside the decision, dated
November 13, 1986,^[1]
and the resolution, dated January 9, 1987,^[2]
respectively   handed down by the two
former Ministers of Labor, both rendered in BLR Case No. NS-5-164-86; and (b)
G.R. No. 78791, which prays for the reversal of the resolutions of the National
Labor Relations Commission, dated May
25, 1987^[3]
and June 19, 1987,^[4]
issued in Injunction Case No. 1442 thereof.

Kimberly-Clark Philippines, Inc. (KIMBERLY, for brevity) executed
a three-year collective bargaining agreement (CBA) with United Kimberly-Clark
Employees Union-Philippine Transport and General Workers’ Organization
(UKCEU-PTGWO) which expired on June
30, 1986.

Within the 60-day freedom period prior to the expiration of and
during the negotiations for the renewal of the aforementioned CBA, some members
of the bargaining unit formed another union called “Kimberly Independent
Labor Union for Solidarity, Activism and Nationalism-Organized Labor
Association in Line Industries and Agriculture (KILUSAN-OLALIA).”

On April 21, 1986,
KILUSAN-OLALIA filed a petition for certification election in Regional Office
No. IV, Ministry of Labor and Employment (MOLE), docketed as Case No. RO4-OD-M-4-15-86.^[5]
KIMBERLY and UKCEU-PTGWO did not object to the holding of a certification
election but objected to the inclusion of the so-called contractual workers
whose employment with KIMBERLY was coursed through an independent contractor,
Rank Manpower Company (RANK, for short), as among the qualified voters.

Pending  resolution of   the petition for certification election by
the med-arbiter, KILUSAN-OLALIA filed a notice of strike on May 7, 1986 with
the Bureau of Labor Relations, docketed as BLR Case No. NS-5-164-86,^[6]
charging KIMBERLY with unfair labor practices based on the following alleged
acts:  (1) dismissal of union members
(KILUSAN-OLALIA); (2) non-regularization of casuals/contractuals
with over six months service; (3) non-implementation of appreciation bonus for
1982 and 1983; (4) non-payment of minimum wages; (5) coercion of employees; and
(6) engaging in CBA negotiations despite the pendency
of a petition for certification election. 
This was later amended to withdraw the charge of coercion but to add, as
new charges, the dismissal of Roque Jimenez and the
non-payment of backwages of the reinstated Emerito Fuentes.^[7]

Conciliation proceedings conducted by the bureau proved futile,
and KILUSAN-OLALIA declared a strike at KIMBERLY’s
premises in San Pedro, Laguna on May 23, 1986.

On May 26, 1986, KIMBERLY petitioned MOLE to assume jurisdiction
over the labor dispute.  On May 30, 1986,
finding that the labor dispute would adversely affect national interest, then
Minister Augusto S. Sanchez issued an assumption
order, the dispositive portion whereof reads:

“Wherefore,  premises
considered, immediately upon receipt of this order, the striking union and its
members are hereby enjoined to lift the picket and remove all obstacles to the
free ingress to and egress from the company premises and to return to work,
including the 28 contractual workers who were dismissed; likewise, the company
is directed to resume its operations immediately thereafter and to accept all
the employees back under the same terms and conditions of employment prevailing
prior to the industrial action.  Further,
all issues in the notice of strike, as amended, are hereby assumed in this
assumption order, except for the representation issue pending in Region IV in
which the Med-Arbiter is also enjoined to decide the same the soonest possible
time.”^[8]

In obedience to said assumption order, KILUSAN-OLALIA terminated
its strike and picketing activities effective June 1, 1986 after a compliance
agreement was entered into by it with KIMBERLY.^[9]

On June   2, 1986,
Med-Arbiter Bonifacio I. Marasigan,
who was handling the certification election case (RO4-OD-M-4-15-86), issued an
order^[10]
declaring the following as eligible to vote in the certification election,
thus:

1.       The regular
rank-and-file laborers/employees of the respondent company consisting of 537 as
of May 14, 1986 should be
considered qualified to vote;

2.       Those casuals who
have worked at least six (6) months as appearing in the payroll months prior to
the filing of the instant petition on April 21, 1986; and

3.       Those contractual
employees who are allegedly in the employ of an independent contractor and who
have also worked for at least six (6) months as appearing in the payroll month
prior to the filing of the instant petition on April 21, 1986.

During the pre-election conference, 64 casual workers were
challenged by KIMBERLY and UKCEU-PTGWO on the ground that they are not
employees of KIMBERLY but of RANK.  It
was agreed by all the parties that the 64 voters shall be allowed to cast their
votes but that their ballots shall be segregated and subject to challenge
proceedings.  The certification election
was conducted on July 1, 1986, with the following results:^[11]

On July 2, 1986, KILUSAN-OLALIA filed with the med-arbiter a
“Protest and Motion to Open and Count Challenged Votes”^[12] on
the ground that the 64 workers are employees of KIMBERLY within the meaning of
Article 212(e) of the Labor Code.  On
July 7, 1986, KIMBERLY filed an opposition to the protest and motion, asserting
that there is no employer-employee      
relationship between the casual workers and the company, and that the
med-arbiter has no jurisdiction to rule on the issue of the status of the
challenged workers which is one of the issues covered by the assumption
order.  The med-arbiter opted not to rule
on the protest until the issue of regularization has been resolved by MOLE.^[13]                      

On November 13, 1986, then Minister Sanchez rendered a decision
in BLR Case No. NS-5-164-86,^[14]
the disposition wherein is summarized as follows:

1.       The service contract for
janitorial and yard maintenance services between KIMBERLY and RANK was declared
legal;

2.       The other casual
employees not performing janitorial and yard maintenance services were deemed
labor-only contractuals and since labor-only
contracting is prohibited, such employees were held to have attained the status
of regular employees, the regularization being effective as of the date of the
decision;

3.       UKCEU-PTGWO, having
garnered more votes than KILUSAN-OLALIA, was certified as the exclusive
bargaining representative of KIMBERLY’S employees;

4.       The reinstatement of
28 dismissed KILUSAN-OLALIA members was ordered;

5.       Roque
Jimenez was ordered reinstated without backwages, the
period when he was out of work being considered as penalty for his misdemeanor;

6.       The decision of the
voluntary arbitrator ordering the reinstatement of Ermilo
Fuentes with backwages was declared as already final
and unappealable; and

7.       KIMBERLY was ordered
to pay appreciation bonus for 1982 and 1983.

On November 25, 1986,
KIMBERLY filed a motion for reconsideration with respect to the regularization
of         contractual workers, the
appreciation bonus and the reinstatement of Roque
Jimenez.^[15]
In a letter dated November 24, 1986, counsel for KILUSAN-OLALIA demanded from
KIMBERLY the implementation of the November 13, 1986 decision but only with
respect to the regularization of the casual workers.^[16]

On December 11, 1986, KILUSAN-OLALIA filed a motion for
reconsideration questioning the authority of the Minister of Labor to assume
jurisdiction over the representation issue. 
In the meantime, KIMBERLY and UKCEU-PTGWO continued with the
negotiations on the new collective bargaining agreement (CBA), no restraining
order or injunctive writ having been issued, and on December 18, 1986, a new
CBA was concluded and ratified by 440 out of 517 members of the bargaining
unit.^[17]

In an order dated January 9, 1987, former Labor Minister Franklin
Drilon denied both motions for reconsideration filed
by KIMBERLY and KILUSAN?OLALIA.^[18]  On March 10, 1987, the new CBA executed between
KIMBERLY and UKCEU-PTGWO was signed.

On March 16, 1987, KILUSAN-OLALIA filed a petition for certiorari
in this Court, docketed as G.R. No. 77629, seeking to set aside the aforesaid
decision, dated November 13, 1986, and the order, dated January 9, 1987,
rendered by the aforesaid labor ministers.

On March 25, 1987, this Court issued in G.R. No. 77629 a
temporary restraining order, enjoining respondents from enforcing and/or
carrying out the decision and order above stated, particularly that portion (1)
recognizing respondent UKCEU-PTGWO as the exclusive bargaining representative
of all regular rank-­and-file employees in the establishment of responde      nt company, (2) enforcing and/or implementing the alleged
CBA which is detrimental to the interests of the members of the petitioner
union, and (3) stopping respondent company from deducting monthly dues and
other union assessments from the wages of all regular rank?and-file
employees of respondent company and from remitting the said collection to
respondent UKCEU-PTGWO, issued in BLR Case No. NS-5-164-86, entitled, “In
Re:  Labor Dispute at Kimberly-Clark
Philippines, Inc.,” of the Department of Labor and Employment, Manila.^[19]

In its comment,^[20]
respondent company pointed out certain events which took place prior to the
filing of the petition in G.R. No. 77629, to wit:

1.       The company and
UKCEU-PTGWO have concluded a new collective bargaining agreement which had been
ratified by 440 out of 517 members of the bargaining unit.

2.       The company has
already granted the new benefits under the new CBA to all its regular
employees, including members of petitioner union who, while refusing to ratify
the CBA nevertheless readily accepted the benefits arising therefrom.

3.       The company has been
complying with the check-off provision of the CBA and has been remitting the
union dues to UKCEU-PTGWO;

4.       The company has
already implemented the decision of November 13, 1986 insofar as the
regularization of contractual employees who have rendered more than one (1)
year of service as of the filing of the Notice of Strike on May 7, 1986 and are
not engaged in janitorial and yard maintenance work, are concerned;

5.       Rank Manpower Company
had already pulled out, reassigned, or replaced the contractual employees
engaged in janitorial and yard maintenance work, as well as those with less
than one year service; and

6.       The company has
reinstated Roque Jimenez as of January 11, 1987.

In G.R. No. 78791, the records^[21]
disclose that on May 4, 1987,
KILUSAN-OLALIA filed another notice of strike with the Bureau of Labor
Relations charging respondent company with unfair labor practices.  On May 8, 1987, the bureau dismissed and
considered the said notice as not filed by reason of the pendency
of the representation issue before this Court in G.R. No. 77629.  KILUSAN-OLALIA moved to reconsider said
order, but before the bureau could act on said motion, KILUSAN-OLALIA declared
a strike and established a picket on respondent company’s premises in San
Pedro, Laguna on May 17, 1987.

On May 18, 1987, KIMBERLY filed a petition for injunction with
the National Labor Relations Commission (NLRC), docketed as Injunction Case No.
1442.  A supplement to said petition was
filed on May 19, 1987.  On May 26, 1987,
the commission en banc issued a temporary restraining order (TRO)
on the basis of the ocular inspection report submitted by the commission’s
agent, the testimonies of KIMBERLY’S witnesses, and pictures of the
barricade.  KILUSAN-OLALIA moved to
dissolve the TRO on the ground of lack of jurisdiction.

Immediately after the expiration of the first TRO on June 9,
1987, the striking employees returned to their picketlines
and reestablished their barricades at the gate. 
On June 19, 1987, the commission en banc issued a second
TRO.

On June 25, 1987, KILUSAN-OLALIA filed another petition for certiorari
and prohibition with this Court, docketed as G.R. No. 78791, questioning the
validity of the temporary restraining orders issued by the NLRC on May 26, 1987
and June 19, 1987.  On June 29, 1987,
KILUSAN-OLALIA filed in said case an urgent motion for a TRO to restrain NLRC
from implementing the questioned orders. 
An opposition, as well as a reply thereto, were filed by the parties.

Meanwhile, on July 3, 1987, KIMBERLY filed in the NLRC an urgent
motion for the issuance of a writ of preliminary injunction when the strikers
returned to the strike area after the second TRO expired.  After due hearing, the commission issued a
writ of preliminary injunction on July 14, 1987, after requiring KIMBERLY to
post a bond in the amount of P20,000.00.

Consequently, on July 17, 1987, KILUSAN-OLALIA filed in G.R. No.
78791 a second urgent motion for the issuance of a TRO by reason of the
issuance of said writ of preliminary injunction, which motion was opposed by
KIMBERLY.

Thereafter, in its memorandum^[22]
filed on December 28, 1989 and in its motion for early resolution^[23]
filed on February 28, 1990, both in G.R. No. 78791, KILUSAN-OLALIA alleged that
it had terminated its strike and picketing activities and that the striking employees
had unconditionally offered to return to work, although they were refused
admission by KIMBERLY.  By reason of this
supervening development, the petition in G.R. No. 78791, questioning the
propriety of the issuance of the two temporary restraining orders and the writ
of injunction therein, has been rendered moot and academic.

In G.R. No. 77629, the petition of KILUSAN-OLALIA avers that the
respondent Secretary of labor and/or the former Minister of Labor have acted
with grave abuse of discretion and/or without jurisdiction in (1) ruling on the
issue of bargaining representation and declaring respondent UKCEU-PTGWO as the
collective bargaining representative of all regular rank-and-file employees of
the respondent company; (2) holding that petitioners are not entitled to vote
in the certification election; (3) considering the regularization of
petitioners (who are not janitors and maintenance employees) to be effective
only on the date of the disputed decision; (4) declaring petitioners who are
assigned janitorial and yard maintenance work to be employees of respondent
RANK and not entitled to be regularized; (5) not awarding to petitioners
differential pay arising out of such illegal work scheme; and (6) ordering the
mere reinstatement of petitioner Jimenez.

The issue of jurisdiction actually involves a question of whether
or not former Minister Sanchez committed a grave abuse of discretion amounting
to lack of jurisdiction in declaring respondent UKCEU-PTGWO as the certified
bargaining representative of the regular employees of KIMBERLY, after ruling
that the 64 casual workers, whose votes are being challenged, were not entitled
to vote in the certification election.

KILUSAN-OLALIA contends that after finding that the 64 workers
are regular employees of KIMBERLY, Minister Sanchez should have remanded the
representation case to the med-arbiter, instead of declaring UKCEU-PTGWO as the
winner in the certification election and setting aside the med arbiter’s order
which allowed the 64 casual workers to cast their votes.

Respondents argue that since the issues of regularization and
representation are closely interrelated and that a resolution of the former
inevitably affects the latter, it was necessary for the former labor minister
to take cognizance of the representation issue; that no timely motion for
reconsideration or appeal was made from his decision of November 13, 1986 which
has become final and executory; and that the
aforesaid decision was impliedly accepted by KILUSAN-OLALIA when it demanded
from KIMBERLY the issuance of regular appointments to its affected members in
compliance with said decision, hence petitioner employees are now estopped from questioning the legality thereof.

We uphold the authority of former Minister Sanchez to assume
jurisdiction over the issue of the regularization of the 64 casual workers,
which fact is not even disputed by KILUSAN-OLALIA as may be gleaned from its
request for an interim order in the notice of strike case (BLR-NS-5-164-86),
asking that the regularization issue be immediately resolved.  Furthermore, even the med-arbiter who ordered
the holding of the certification election refused to resolve the protest on the
ground that the issue raised therein correctly pertains to the jurisdiction of
the then labor minister.  No opposition
was offered by KILUSAN-OLALIA.  We hold
that the issue of regularization was properly addressed to the discretion of
said former minister.

However, the matter of the controverted
pronouncement by former Minister Sanchez, as reaffirmed by respondent
secretary, regarding the winner in the certification election presents a
different situation.

It will be recalled that in the certification election,
UKCEU-PTGWO came out as the winner, by garnering a majority of the votes cast
therein with the exception of 64 ballots which were subject to challenge.  In the protest filed for the opening and
counting of the challenged ballots, KILUSAN-OLALIA raised the main and sole
question of regularization of the 64 casual workers.  The med-arbiter refused to act on the protest
on the ground that the issue involved is within the jurisdiction of the then
Minister of Labor.  KILUSAN-OLALIA then
sought an interim order for an early resolution on the employment status of the
casual workers, which was one of the issues included in the notice of strike
filed by KILUSAN-OLALIA in BLR Case No. NS-5-164-86.  Consequently, Minister Sanchez rendered the
questioned decision finding that the workers not engaged in janitorial and yard
maintenance service are regular employees but that they became regular only on
the date of his decision, that is, on November 13, 1986, and, therefore, they
were not entitled to vote in the certification election.  On the basis of the results obtained in the
certification election, Minister Sanchez declared UKCEU-PTGWO as the winner.

The pivotal issue, therefore, is when said workers, not
performing janitorial or yard maintenance service, became regular employees of
KIMBERLY.

We find and so hold that the former labor minister gravely abused
his discretion in holding that those workers not engaged in janitorial or yard
maintenance    service attained the status
of regular employees only on November 13, 1986, which thus deprived them of
their constitutionally protected right to vote in the certification election
and choose their rightful bargaining representative.

The Labor Code defines who are regular employees, as follows:

“ART. 280.  Regular
and Casual Employment. – The provisions of written
agreements to the contrary notwithstanding and regardless of the oral
agreements of the parties, an employment shall be deemed to be regular where
the employee has been engaged to perform activities which are usually necessary
or desirable in the usual business or trade of the employer, except where the
employment has been fixed for a specific project or undertaking the completion
or termination of which has been determined at the time of the engagement of
the employee or where the work or services to be performed is seasonal in
nature and the employment is for the duration of the season.

“An employment shall be deemed to be casual if it is not
covered by the preceding paragraph:  Provided,
That any employee who has rendered at least one year of service, whether such
service is continuous or broken, shall be considered a regular employee with
respect to the activity in which he is employed and his employment shall
continue while such activity exists.”

The law thus provides for two kinds of regular employees,
namely:  (1) those who are engaged to
perform activities which are usually necessary or desirable in the usual
business or trade of the employer; and (2) those who have rendered at least one
year of service, whether continuous or broken, with respect to the activity in
which they are employed.  The individual
petitioners herein who have been adjudged to be regular employees fall under
the second category.  These are the
mechanics, electricians, machinists, machine shop helpers, warehouse helpers,
painters, carpenters, pipefitters and masons.  It is not disputed that these workers have
been in the employ of KIMBERLY for more than one year at the time of the filing
of the petition for certification election by KILUSAN-OLALIA.

Owing to their length of service with the company, these workers
became regular employees, by operation of law, one year after they were
employed by KIMBERLY through RANK.  While
the actual regularization of these employees entails the mechanical act of
issuing regular appointment papers and compliance with such other operating
procedures as may be adopted by the employer, it is more in keeping with the
intent and spirit of the law to rule that the status of regular employment
attaches to the casual worker on the day immediately after the end of his first
year of service.  To rule otherwise, and
to instead make their regularization dependent on the happening of some
contingency or the fulfillment of certain requirements, is to impose a burden
on the employee which is not sanctioned by law.

That the first stated position is the situation contemplated and sanctioned
by law is further enhanced by the absence of a statutory limitation before
regular status can be acquired by a casual employee.  The law is explicit.  As long as the employee has rendered at least
one year of service, he becomes a regular employee with respect to the activity
in which he is employed.  The law does
not provide the qualification that the employee must first be issued a regular
appointment or must first be formally declared as such before he can acquire a
regular status.  Obviously, where the law
does not distinguish, no distinction should be drawn.

The submission that the decision of November 13, 1986 has become
final and executory, on the grounds that no timely
appeal has been made therefrom and that
KILUSAN-OLALIA has impliedly acceded thereto, is untenable.

Rule 65 of the Rules of Court allows original petitions for certiorari
from decisions or orders of public respondents provided they are filed within a
reasonable time.  We believe that the
period from January 9, 1987, when the motions for reconsideration separately
filed by KILUSAN-OLALIA and KIMBERLY were denied, to March 16, 1987, when the
petition in G.R. No. 77629 was filed, constitutes a reasonable time for
availing of such recourse.

We likewise do not subscribe to the claim of respondents that
KILUSAN-OLALIA has impliedly accepted the questioned decision by demanding
compliance therewith.  In the letter of
KILUSAN-OLALIA dated November 24, 1986,^[24]
addressed to the legal counsel of KIMBERLY, it is there expressly and specifically
pointed out that KILUSAN-OLALIA intends to file a motion for reconsideration of
the questioned decision but that, in the meantime, it was demanding the
issuance of regular appointments to the casual workers who had been declared to
be regular employees.  The filing of said
motion for reconsideration of the questioned decision by KILUSAN-OLALIA, which
was later denied, sustains our position on this issue and denies the theory of estoppel postulated by respondents.

On the basis of the foregoing circumstances, and as a consequence
of their status as regular employees, those workers not performing janitorial
and yard maintenance service were perforce entitled to the payment of salary
differential, cost of living allowance, 13th month pay, and such other benefits
extended to regular employees under the CBA, from the day immediately following
their first year of service in the company. 
These regular employees are likewise entitled to vote in the
certification election held on July 1, 1986. 
Consequently, the votes cast by those employees not performing
janitorial and yard maintenance service, which form part of the 64 challenged
votes, should be opened, counted and considered for the purpose of determining
the certified bargaining representative.

We do not find it necessary to disturb the finding of then
Minister Sanchez holding as legal the service contract executed between
KIMBERLY and RANK, with respect to the workers performing janitorial and yard
maintenance service, which is supported by substantial and convincing
evidence.  Besides, we take judicial
notice of the general practice adopted in several government and private
institutions and industries of hiring a janitorial service on an independent
contractor basis.  Furthermore, the
occasional directives and suggestions of KIMBERLY are insufficient to erode
primary and continuous control over the employees of the independent
contractor.^[25]
Lastly, the duties performed by these workers are not independent and integral
steps in or aspects of the essential operations of KIMBERLY which is engaged in
the manufacture of consumer paper products and cigarette paper, hence said
workers cannot be considered regular employees.

The reinstatement of Roque Jimenez
without back-wages involves a question of fact best addressed to the discretion
of respondent secretary whose finding thereon is binding and conclusive upon
this Court, absent a showing that he committed a grave abuse in the exercise
thereof.

WHEREFORE, judgment is hereby rendered in G.R. No. 77629:

1.     Ordering
the med-arbiter in Case No. RO4-OD-M-­4-15-86 to open and count the 64
challenged votes, and that the union with the highest number of votes be
thereafter declared as the duly elected certified bargaining representative of
the regular employees of KIMBERLY;

2.     Ordering
KIMBERLY to pay the workers who have been regularized their differential pay
with respect to minimum wage, cost of living allowance, 13th month pay, and
benefits provided for under the applicable collective bargaining agreement from
the time they became regular employees.

All other aspects of the decision appealed from, which are not so
modified or affected thereby, are hereby AFFIRMED.  The temporary restraining order issued in
G.R. No. 77629 is hereby made permanent.

The petition filed in G.R. No. 78791 is hereby DISMISSED.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Sarmiento, JJ., concur.

*
The other petitioners not specifically named in the title of this case consist
of 97 other alleged members of petitioner union (exclusive of petitioners Roque Jimenez and Mario C. Rongaleros)
who are enumerated in the “Amended List of Petitioners” which is
indicated as Annex “A” of the basic petition filed herein.

^[1]
Petition, G.R. No. 77629, Annex B; Rollo,
62-79.

^[2] Id.,
id., Annex C; ibid., 80-81.

^[3]
Petition, G.R. No. 78791, Annex A; Rollo,
42-43.

^[4] Id.,
id., Annex B; ibid., 44-45.

^[5]
Petition, G.R. No. 77629, Annex D; Rollo,
82-83.

^[6] Id.,
id., Annex F; ibid., 86.

^[7]
Memorandum of Public Respondent, G.R. No. 77629; Rollo,
458-459.

^[8]
Petition, G.R. No. 77629, Annex G; ibid., 87-88.

^[9] Id.,
id., Annex H; ibid., 89.

^[10] Id.,
id., Annex J; ibid., 114-117.

^[11] Rollo, G.R. No. 77629, 66.

^[12] Ibid.,
id., 18.

^[13] Ibid.,
id., 19, 68, 461. 

^[14] Ibid.,
id., 62-79.

^[15] Ibid.,
id., 461-462.

^[16] Petition,
G.R. No. 77629, Annex M; ibid., 125.

^[17] Rollo, G.R. No. 77629; 462-463.

^[18] Ibid.,
id., 161-162.

^[19] Ibid.,
id., 134-135.

^[20] Ibid.,
id., 171-190.

^[21] Rollo, G.R. No. 78791, 327-339.

^[22] Rollo, G.R. No. 78791, 350-402.

^[23] Ibid.,
id., 406.

^[24]
Footnote 16, ante.

^[25] Wirtz vs. San Francisco & Oakland Helicopter Air
Inc., 244 F. Supp. 680.