SOUTHERN PHILIPPINES FEDERATION OF LABOR (SPFL), PETITIONER, VS. HONORABLE PURA FERRER CALLEJA, DIRECTOR, BUREAU OF LABOR RELATIONS, DEPARTMENT OF LABOR AND EMPLOYMENT, PUBLIC R…

This petition for certiorari seeks to annul and set aside
the Order issued by public respondent Director Pura Ferrer Calleja of the Bureau of
Labor Relations dated June 23, 1987 which certified the respondent union,
Mindanao Miners Employees Union-Sandigan ng Manggagawang Filipino (MMEU-Sandigan), as the sole and exclusive bargaining
representative of the rank-and-file employees of respondent Apex Mining Company
(Apex) after the said public respondent denied the motion of herein petitioner
to exclude one hundred ninety-seven (197) employees from voting in the certification
election.  The denial is based on the
ground that they are rank-and-file employees.

As summarized by the Solicitor General in his Comment, the facts
are as follows:

“On December 29, 1986, petitioner Southern Philippines
Federation of Labor filed a petition for certification election among the
rank-and-file employees of private respondent Apex Mining Company, Incorporated
with the Department of Labor in Region XI, Davao
City.

 “On February 6, 1987,
Med-Arbiter Conrado O. Macasa,
Sr. issued an Order calling for the holding of the certification election on
February 23, 1987 among the rank-and-file employees of APEX with the following
choices:

“1.          Southern Philippines
Federation of Labor (SPFL)

2.            Mindanao
Miners Employees Union-Sandigan ng
Manggagawang Pilipino (MMEU-Sandigan)
and

3.            No union.

“On February 9, 1987,
a pre-election conference was conducted among the petitioner Union;
private respondent Union, MMEU-Sandigan;
and APEX to settle details in the conduct of the election such as the venue of
the election and the list of employees qualified to vote in the election.

“During the pre-election conference, the parties agreed to
delete from the list of workers prepared and submitted by APEX numbering One
Thousand Seven Hundred Sixteen (1,716), the names of nineteen (19) managerial employees and seventy-three probationary
employees who were statutorily disqualified from voting.  Petitioner Union objected to the inclusion in
said list of the following: (1) employees
occupying the positions of Supervisor I, II, and III; (2) employees under confidential/special payrolls;
and (3) employees who were not paying
Union dues. The petitioner Union contends that the aforementioned
employees were disqualified from
participating in the certification election
since the Supervisors were managerial employees while the last two were
disqualified by virtue of their non-membership in the Union and their exclusion
from the benefits of the collective bargaining agreement.

“In view of the
lack of agreement among the parties on the list of qualified voters,
Med-Arbiter Macasa issued an Order on February 20, 1987, the dispositive
portion of which reads:

“’Wherefore, premises considered, it is hereby declared that the
following groups of workers be not included in the list of employees qualified
to vote in the consent election on
February 23, 1987, as follows:

1.   Nineteen (19) managerial employees:

2.   Seventy-three (73) probationary employees;
and

3.   Nineteen (19)
Supervisors I;

All other workers except the foregoing will be allowed to vote.’”

“On February 23, 1987,
the day of the certification election, petitioner Union
filed a Motion for Reconsideration of Macasa’s Order
dated February 20, 1987.  The certification election was nonetheless
conducted, with the result as follows:

“1.            Southern
Philippine Federation of Labor————————————————–614

2.  Mindanao
Miners Employees Union (MMEU-Sandigan——————————528

3.  No
Union———————————————————————————————–9

4.  Challenged
Ballots——————————————————————————–197

5.  Spoiled————————————————————————————————25

TOTAL VOTES
CAST———————————————————————1,373

“On the basis of the foregoing results, respondent Union filed
an Urgent Motion to Open the Challenged Ballots, with the prayer, to wit:

“‘Wherefore, premises considered, it is most respectfully
prayed of this Honorable office that this instant motion be given due course and that an order be issued to open and count the challenged ballots in order to determine,
once and for all, the winner in the certification and/or consent election and
thereafter certify the sole and exclusive collective bargaining representative
of all rank-and-file employees and workers of Apex
Mining Company, Incorporated’.

xxx                   xxx                   xxx

“On March 11, 1987,
APEX filed a Manifestation and Motion manifesting its interest in the speedy resolution of the case and primary
concern for ‘the restoration of normalcy and the preservation of industrial peace in the already explosive
situation in the mining area.’

xxx                   xxx                   xxx

xxx                   xxx                   xxx

“On March 19, 1987,
Med-Arbiter Macasa issued an Order, the dispositive portion of which reads:

“‘Wherefore, the interest of industrial peace considered, it
is hereby directed that the challenged ballots be opened and inventoried on 26
March 1987 at 3:00 p.m., before the entire records of the case be indorsed to the BLR for review’.

xxx                   xxx                   xxx

“Petitioner Union appealed Macasa’s Order
dated March 19, 1987 to the
Bureau of Labor Relations.  On April 14,
1987, BLR Director Pura Ferrer-Calleja
issued an Order, the dispositive portion of which
reads:

“WHEREFORE, the Appeal of petitioner Southern Philippines
Federation of Labor (SPFL) is hereby dismissed for lack of merits and the Med-Arbiter’s Order dated 19 March
1987 is affirmed
with modification that the 197 ballots should be opened and canvassed by Labor
Regional Office XI, Davao City.  Let, therefore, the records of this case be immediately remanded to the said office, for the
immediate implementation of this Resolution.’”

“Petitioner Union moved for  a reconsideration of the resolution dated April 14, 1987.  Meanwhile, on May 21, 1987, Med-Arbiter Macasa
opened and canvassed the 197 challenged ballots with the result as follows:

“As a consequence of the opening and canvass of the challenged
ballots, the outcome of the certification election became:

SPFL                                                    –           –   626 votes

SANDIGAN                                           –           –   706 votes

No Union                                               –           –     11 votes

TOTAL                                                  –           1,343 votes

“Based on the aforementioned results, respondent Union
filed a Manifestation with the
BLR with prayer for the issuance of Certification Order certifying it as the sole
and exclusive bargaining representative of the rank-and-file employees of APEX.

“On June 23, 1987,
Director Calleja issued an Order, the dispositive portion of which reads:”

“’WHEREFORE, the Motion for reconsideration of Petitioner SPFL is
hereby denied for lack of merit. 
Meanwhile, intervenor Mindanao Employees
Union-Sandigan Ng Manggagawang
Pilipino (MMEU-SANDIGAN) is hereby certified as the sole and exclusive
bargaining representative of the rank-and-file employees of respondent Apex
Mining Company, Inc.  Accordingly, the management of Apex Mining Company,
Inc., is
directed to negotiate with MMEU-SANDIGAN for the conclusion of a collective
bargaining agreement (CBA).’”

Hence, this petition.

The issue raised in this petition is whether or not the public
respondent committed grave abuse of discretion in allowing the 197 employees to
vote in the certification election when, as alleged by the petitioner, they are
disqualified by express provision of law or under the existing collective
bargaining agreement.

It is maintained by the petitioner that under the Labor Code,
managerial employees are excluded from forming or joining a collective
bargaining unit; and under            the
collective bargaining agreement executed between Apex and respondent union, among those who are
excluded from the bargaining unit are: a)
managerial employees as defined in paragraph K, Article 212 of the Labor
Code; b) those performing supervisory functions; and c) those holding
confidential positions as
determined by the company.  Therefore, the
employees holding the positions of Supervisors II and III and those in the
confidential payrolls should be excluded from joining the bargaining unit and
from voting in the certification election. 
Likewise, those employees who are not paying union dues should be
excluded from the same since the existing CBA contains a Union shop provision.

The contentions have no merit.

Although we have upheld the validity of the CBA as the law among
the parties, (see Planters Products, Inc. v. NLRC, et al., G.R. NO. 78524,
January 20, 1989), its provisions cannot override what expressly provided by
law that only managerial employees are ineligible to join, assist or for any
labor organization.  (See Art. 247, Labor
Code).  Therefore, regardless of the
challenged employees’ designations, whether they are employed as Supervisors or
in the confidential payrolls, if the nature of their job does not fall under
the definition of “managerial” as defined in the Labor Code, they are
eligible to be members of the bargaining unit and to vote in the certification
election.  Their right to
self-organization must be upheld in the absence of an express provision of law
to the contrary.  It cannot be curtailed by
a collective bargaining
agreement.

Hence, it is important to determine whether the positions of
Supervisors II and III are considered “managerial” under the law.

As defined in the Labor Code and as we have held in the case of Franklin
Baker Company of the Phils.
v. Trajano, (157 SCRA 416, 421-
423, [1988]):

“A managerial employee is defined as one ‘who is vested with
powers or prerogatives to lay down and execute management policies and/or to
hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees, or to effectively recommend
such managerial actions.’ 
(Reynolds Phil. Corp. v. Eslava, 137 SCRA
[1985], citing Section 212 (K), Labor Code.”

x x x                 x x x                 x x x

“The test of ‘supervisory’ or ‘managerial status’ depends on
whether a person possesses authority to act the interest of his employer in the
matter specified in Article 212 (k) of the Labor code and Section 1 (m) of its Implementing Rules and whether such
authority is not merely routinary or clerical in
nature, but requires the use of independent judgment.  Thus, where such recommendatory powers as in
the case at bar, are subject to evaluation, review and final action by the
department heads and other higher executives of the company, the same, although
present, are not effective and not an exercise of independent judgment as required
by law (National Warehousing Corp. v. CIR, 7 SCRA 602-603 [1963]).”

 “Furthermore, in line
with the ruling of this Court, subject employees are not managerial employees
because as borne by the records, they do not participate in policy making but
are given ready policies to execute and standard practices to observe, thus
having little freedom of action (National Waterworks and Sewerage Authority v. NWSA Consolidated,
L-18938, 11 SCRA 766
[1964]).”

The petitioner’s motion for
reconsideration before the public respondent outlined the job description of
Supervisors.  In the category of
Supervisory II, the “General Summary” provides:

“GENERAL SUMMARY:

“Assists the Foreman in the effective
dispatching/distribution of manpower and equipment to carry out approved
work.” (p. 30, Rollo)

while the first
duty enumerated in the position of supervisor III states:

“1.  Executes and coordinates work plans emanating
from his supervisors.” (p. 32, Rollo)

Thus, it is clear from the above provisions that the functions of
the questioned positions are not managerial in nature because they only execute
approved and established policies leaving little or no discretion at all
whether to implement the said policies or not. 
The respondent Director, therefore, did not commit grave abuse of
discretion in dismissing the petitioner’s appeal from the Med Arbiter’s Order
to open and count the challenged ballots in denying the petitioner’s motion for
reconsideration and in certifying
the respondent Union as the sole and exclusive bargaining representative of the
rank-and-file employees of respondent Apex.

As regards the employees in the confidential payroll, the petitioner has not shown that the
nature of their jobs is classified as managerial except for its allegation that they are considered by
management as occupying managerial positions and highly confidential.  Neither can payment or non-payment of union
dues be the determining factor of whether the challenged employees should be
excluded from the bargaining unit since the union shop provision in the CBA
applies only to newly hired employees but not to members of the bargaining unit who were not members of the union
at the time of the signing of the CBA. 
It is, therefore, not impossible for employees to be members of the bargaining unit even though they
are non-union members or not paying union dues.

WHEREFORE, the petition is hereby DISMISSED for LACK OF MERIT.  Casts against the petitioner.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.