Kimberly vs. Drilon .docx

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G.R. No. L-77629 May 9, 1990

KIMBERLY INDEPENDENT LABOR UNION FOR SOLIDARITY, ATI!ISM ANDNATIONALISM-ORGANI"ED LABOR ASSOIATION IN LINE INDUSTRIES AND

AGRIULTURE #KILUSAN-OLALIA$, RO%UE &IMENE", MARIO . RONGALEROSa'( OT)ERS, petitioners,vs.)ON. FRANKLIN M. DRILON, KIMBERLY-LARK P)ILIPPINES, IN., RODOLFOPOLOTAN, (o*'+ *'/ '(/ / 3*4 'a4/ 5Ra' Ma'o8/ o.5 a'(UNITED KIMBERLY-LARK EMPLOYEES UNION-P)ILLIPPINE TRANSPORTAND GENERAL ORKERS ORGANI"ATION #UKEU-PTGO$, respondents.

KIMBERLY INDEPENDENT LABOR UNION FOR SOLIDARITY, ATI!ITISM ANDNATIONALISM-OLALIA #KILUSAN-OLALIA$, petitioner,vs.NATIONAL LABOR RELATIONS OMMISSION, MANUEL AGUILAR, MA.ESTRELLA ALDA, APT. REY L. LANADA, OL. !I!ENIO MANAIG a'(KIMBERLY-LARK P)ILIPPINES, IN., respondents.

REGALADO, J.:

Before us are two consolidated petitions for certiorari filed by the above-namedpetitioner union (hereinafter referred to as KILUS!-"LLI, for conciseness# andindividual complainants therein, to wit (a# $.%. &&'), which see*s to reverse and setaside the decision, dated !ovember +, +)', 1 and the resolution, dated anuary ),+)&, 2 respectively handed down by the two former /inisters of Labor, both renderedin BL% 0ase !o. !S-1-+'2-'3 and (b# $.%. !o. &&)+, which prays for the reversalof the resolutions of the !ational Labor %elations 0ommission, dated /ay 1,+)& : and une +),+)& ; issued in In4unction 0ase !o. +22 thereof.

Kimberly-0lar* 5hilippines, Inc. (KI/B6%L7, for brevity# e8ecuted a three-year collective bar9ainin9 a9reement (0B# with United Kimberly-0lar* 6mployees Union-5hilippine :ransport and $eneral ;or*ers< "r9ani=ation (UK06U-5:$;"# whiche8pired on une >, +)'.

;ithin the '>-day freedom period prior to the e8piration of and durin9 the ne9otiationsfor the renewal of the aforementioned 0B, some members of the bar9ainin9 unitformed another union called ?Kimberly Independent Labor Union for Solidarity,

ctivism and !ationalism-"r9ani=ed Labor ssociation in Line Industries and 9riculture (KILUS!-"LLI#.?

"n pril +, +)', KILUS!-"LLI filed a petition for certification election in%e9ional "ffice !o. I@, /inistry of Labor and 6mployment (/"L6#, doc*eted as 0ase!o. %"2-"A-/-2+1-'. < KI/B6%L7 and (UK06U-5:$;"# did not ob4ect to theholdin9 of a certification election but ob4ected to the inclusion of the so-calledcontractual wor*ers whose employment with KI/B6%L7 was coursed throu9h an

independent contractor, %an* /anpower 0ompany (%!K for short#, as amon9 theualified voters.

5endin9 resolution of the petition for certification election by the med-arbiter,KILUS!-"LLI filed a notice of stri*e on /ay &, +)' with the Bureau of Labor %elations, doc*eted as BL% 0ase !o. !S-1-+'2-', 6 char9in9 KI/B6%L7 with unfair labor practices based on the followin9 alle9ed actsC (+# dismissal of union members(KILUS!-"LLI#3 (# non-re9ulari=ation of casualsDcontractuals with over si8months service3 (# non-implementation of appreciation bonus for +) and +)3 (2#non-payment of minimum wa9es3 (1# coercion of employees3 and ('# en9a9in9 in 0Bne9otiations despite the pendency of a petition for certification election. :his was later amended to withdraw the char9e of coercion but to add, as new char9es, thedismissal of %oue imene= and the non-payment of bac*wa9es of the reinstated6merito Euentes . 7

0onciliation proceedin9s conducted by the bureau proved futile, and KILUS!-"LLI declared a stri*e at KI/B6%L7<s premises in San 5edro, La9una on /ay ,+)'.

"n /ay ', +)', KI/B6%L7 petitioned /"L6 to assume 4urisdiction over the labor dispute. "n /ay >, +)', findin9 that the labor dispute would adversely affectnational interest, then /inister u9usto S. Sanche= issued an assumption order, thedispositive portion whereof readsC

;herefore, premises considered, immediately upon receipt of thisorder, the stri*in9 union and its members are hereby en4oined tolift the pic*et and remove all obstacles to the free in9ress to ande9ress from the company premises and to return to wor*,

includin9 the contractual wor*ers who were dismissed3li*ewise, the company is directed to resume its operationsimmediately thereafter and to accept all the employees bac*under the same terms and conditions of employment prevailin9prior to the industrial action. Eurther, all issues in the notice of stri*e, as amended, are hereby assumed in this assumption order,e8cept for the representation issue pendin9 in %e9ion I@ in whichthe /ed-rbiter is also en4oined to decide the same the soonestpossible time. =



In obedience to said assumption order, KILUS!-"LLI terminated its stri*e andpic*etin9 activities effective une +, +)' after a compliance a9reement was enteredinto by it with KI/B6%L7. 9

"n une , +)', /ed-rbiter Bonifacio +. /arasi9an, who was handlin9 thecertification election case (%"2-"A-/-2-+1'#, issued an order 10 declarin9 thefollowin9 as eli9ible to vote in the certification election, thusC

+. :he re9ular ran*-and-file laborersDemployees of the respondentcompany consistin9 of 1& as of /ay +2, +)' should beconsidered ualified to vote3

. :hose casuals who have wor*ed at least si8 ('# months asappearin9 in the payroll months prior to the filin9 of the instantpetition on pril +, +)'3 and

. :hose contractual employees who are alle9edly in the employof an independent contractor and who have also wor*ed for at

least si8 ('# months as appearin9 in the payroll month prior to thefilin9 of the instant petition on pril +, +)'.

Aurin9 the pre-election conference, '2 casual wor*ers were challen9ed by KI/B6%L7and (UK06U-5:$;"# on the 9round that they are not employees, of KI/B6%L7 butof %!K. It was a9reed by all the parties that the '2 voters shall be allowed to casttheir votes but that their ballots shall be se9re9ated and sub4ect to challen9eproceedin9s. :he certification election was conducted on uly I., +)', with thefollowin9 resultsC 11

+. KILUS!-"LLI F 2' votes

. (UK06U-5:$;"# F '' votes

. !" U!I"! F + vote

2. S5"IL6A BLL":S F 2 votes

1. 0GLL6!$6A BLL":S F '2 votes

HHHH

:":L 1+ votes

"n uly , +)', KILUS!-"LLI filed with the med-arbiter a ?5rotest and /otion to"pen and 0ount 0hallen9ed @otes? 12 on the 9round that the '2 wor*ers are

employees of KI/B6%L7 within the meanin9 of rticle +(e# of the Labor 0ode. "nuly &, +)', KI/B6%L7 filed an opposition to the protest and motion, assertin9 thatthere is no employer-employee relationship between the casual wor*ers and thecompany, and that the med-arbiter has no 4urisdiction to rule on the issue of the statusof the challen9ed wor*ers which is one of the issues covered by the assumption order.:he med-arbiter opted not to rule on the protest until the issue of re9ulari=ation hasbeen resolved by/"L6. 1:

"n !ovember +, +)', then /inister Sanche= rendered a decision in BL% 0ase !o.!S-1-+'2-', 1; the disposition wherein is summari=ed as followsC

+. :he service contract for 4anitorial and yard maintenance servicebetween KI/B6%L7 and %!K was declared le9al3

. :he other casual employees not performin9 4anitorial and yardmaintenance services were deemed labor-only contractual andsince labor-only contractin9 is prohibited, such employees wereheld to have attained the status of re9ular employees, there9ulari=ation bein9 effective as of the date of the decision3

. UK06U-5:$;" havin9 9arnered more votes than KILUS!-"LLI was certified as the e8clusive bar9ainin9 representativeof KI/B6%L7<s employees3

2. :he reinstatement of dismissed KILUS!-"LLI memberswas ordered3

1. %oue imene= was ordered reinstated without bac*wa9es, theperiod when he was out of wor* bein9 considered as penalty for his misdemeanor3

'. :he decision of the voluntary arbitrator orderin9 thereinstatement of 6rmilo Euentes with bac*wa9es was declared asalready final and unappealable3 and

&. KI/B6%L7 was ordered to pay appreciation bonus for +)and +).



"n !ovember 1, +)', KI/B6%L7 flied a motion for reconsideration with respect tothe re9ulari=ation of contractual wor*ers, the appreciation bonus and thereinstatement of %oue imene=. 1< In a letter dated !ovember 2, +)', counsel for KILUS!-"LLI demanded from KI/B6%L7 the implementation of the !ovember +, +)' decision but only with respect to the re9ulari=ation of the casual wor*ers. 16

"n Aecember ++, +)', KILUS!-"LLI filed a motion for reconsiderationuestionin9 the authority of the /inister of Labor to assume 4urisdiction over therepresentation issue. In the meantime, KI/B6%L7 and UK06U-5:$;" continuedwith the ne9otiations on the new collective bar9ainin9 a9reement (0B#, norestrainin9 order or 4unctive writ havin9 been issued, and on Aecember +, +)', anew 0B was concluded and ratified by 22> out of 1+& members of the bar9ainin9unit. 17

In an order dated anuary ), +)&, former Labor /inister Eran*lin Arilon denied bothmotions for reconsideration filed by KI/B6%L7 and KILUS!-"LLI. 1= "n /arch+>, +)&, the new 0B e8ecuted between KI/B6%L7 and UK06U-5:$;" wassi9ned.

"n /arch +', +)&, KILUS!-"LLI filed a petition for certiorari in this 0ourtdoc*eted as $.%. !o. &&'), see*in9 to set aside the aforesaid decision, dated!ovember +, +)', and the order, dated anuary ), +)&, rendered by the aforesaidlabor ministers.

"n /arch 1, +)&, this 0ourt issued in $.%. !o. &&') a temporary restrainin9 order,en4oinin9 respondents from enforcin9 andDor carryin9 out the decision and order abovestated, particularly that portion (+# reco9ni=in9 respondent UK06U-5:$;" as thee8clusive bar9ainin9 representative of all re9ular ran*-and-file employees in theestablishment of respondent company, (# enforcin9 andDor implementin9 the alle9ed0B which is detrimental to the interests of the members of the petitioner union, and(# stoppin9 respondent company from deductin9 monthly dues and other unionassessments from the wa9es of all re9ular ran*-and-file employees of respondentcompany and from remittin9 the said collection to respondent UK06U-5:$;" issued

in BL% 0ase !o. !S-1-+'2-', entitled, ?In %eC Labor Aispute at Kimberly-0lar*5hilippines, Inc.,? of the Aepartment of Labor and 6mployment, /anila, 19

In its comment, 20 respondent company pointed out certain events which too* placeprior to the filin9 of the petition in $.%. !o. &&'), to witC

+. :he company and UK06U-5:$;" have concluded a newcollective bar9ainin9 a9reement which had been ratified by 22>out of 1+& members of the bar9ainin9 unit3

. :he company has already 9ranted the new benefits under thenew 0B to all its re9ular employees, includin9 members of petitioner union who, while refusin9 to ratify the 0B neverthelessreadily accepted the benefits arisin9 therefrom3

. :he company has been complyin9 with the chec*-off provisionof the 0B and has been remittin9 the union dues to UK06U-5:$;"

2. :he company has already implement the decision of !ovember +, +)' insofar as the re9ulari=ation of contractual employeeswho have rendered more than one (+# year of service as of thefilin9 of the !otice of Stri*e on /ay &, +)' and are not en9a9edin 4anitorial and yard maintenance wor*, are concerned

1. %an* /anpower 0ompany had already pulled out, reassi9nedor replaced the contractual employees en9a9ed in 4anitorial andyard maintenance wor*, as well as those with less than one year

service3 and

'. :he company has reinstated %oue imene= as of anuary ++,+)&.

In $.%. !o. &&)+, the records 21 disclose that on /ay 2, +)&, KILUS!-"LLI filedanother notice of stri*e with the Bureau of Labor %elations char9in9 respondentcompany with unfair labor practices. "n /ay , +)&, the bureau dismissed andconsidered the said notice as not filed by reason of the pendency of the representationissue before this 0ourt in $.%. !o. &&'). KILUS!-"LLI moved to reconsider said order, but before the bureau could act on said motion, KILUS!-"LLIdeclared a stri*e and established a pic*et on respondent company<s premises in San5edro, La9una on /ay +&, +)&.

"n /ay +, +)&, KI/B6%L7 filed a petition for in4unction with the !ational Labor %elations 0ommission (!L%0#, doc*eted as In4unction 0ase !o. +22. supplementto said petition was filed on /ay +), +)&. "n /ay ', +)&, the commission enbanc issued a temporary restrainin9 order (:%"# on the basis of the ocular inspectionreport submitted by the commission<s a9ent, the testimonies of KI/B6%L7<switnesses, and pictures of the barricade. KILUS!-"LLI moved to dissolve the:%" on the 9round of lac* of 4urisdiction.

Immediately after the e8piration of the first :%" on une ), +)&, the stri*in9employees returned to their pic*et lines and reestablished their barricades at the 9ate."n une +), +)&, the commission en banc issued a second :%".



"n une 1, +)&, KILUS!-"LLI filed another petition for certiorari andprohibition with this 0ourt, doc*eted as $.%. !o. &&)+, uestionin9 the validity of thetemporary restrainin9 orders issued by the !L%0 on /ay ', +)& and une +),+)&. "n une ), +)&, KILUS!-"LLI filed in said case an ur9ent motion for a:%" to restrain !L%0 from implementin9 the uestioned orders. n opposition, as

well as a reply thereto, were filed by the parties.

/eanwhile, on uly , +)&, KI/B6%L7 filed in the !L%0 an ur9ent motion for theissuance of a writ of preliminary in4unction when the stri*ers returned to the stri*e areaafter the second :%" e8pired. fter due hearin9, the commission issued a writ of preliminary in4unction on uly +2, +)&, after reuirin9 KI/B6%L7 to post a bond inthe amount of 5>,>>>.>>.

0onseuently, on uly +&, +)&, KILUS!-"LLI filed in $.%. !o. &&)+ a secondur9ent motion for the issuance of a :%" by reason of the issuance of said writ of preliminary in4unction, which motion was opposed by KI/B6%L7.

:hereafter, in its memorandum 22 filed on Aecember , +)) and in its motion for

early resolution

2:

filed on Eebruary , +))>, both in $.%. !o. &&)+, KILUS!-"LLI alle9ed that it had terminated its stri*e and pic*etin9 activities and that thestri*in9 employees had unconditionally offered to return to wor*, althou9h they wererefused admission by KI/B6%L7. By reason of this supervenin9 development, thepetition in $.%. !o. &&)+, uestionin9 the propriety of the issuance of the twotemporary restrainin9 orders and the writ of in4unction therein, has been renderedmoot and academic.

In $.%. !o. &&'), the petition of KILUS!-"LLI avers that the respondentSecretary of Labor andDor the former /inister of Labor have acted with 9rave abuse of discretion andDor without 4urisdiction in (+# rulin9 on the issue of bar9ainin9representation and declarin9 respondent UK06U-5:$;" as the collective bar9ainin9representative of all re9ular ran*-and-file employees of the respondent company3 (#holdin9 that petitioners are not entitled to vote in the certification election3 (#considerin9 the re9ulari=ation of petitioners (who are not 4anitors and maintenance

employees# to be effective only on the date of the disputed decision3 (2# declarin9petitioners who are assi9ned 4anitorial and yard maintenance wor* to be employees of respondent %!K and not entitled to be re9ulari=ed3 (1# not awardin9 to petitionersdifferential pay arisin9 out of such ille9al wor* scheme3 and ('# orderin9 the merereinstatement of petitioner imene=.

:he issue of 4urisdiction actually involves a uestion of whether or not former /inister Sanche= committed a 9rave abuse of discretion amountin9 to lac* of 4urisdiction indeclarin9 respondent UK06U-5:$;" as the certified bar9ainin9 representative of the re9ular employees of KI/B6%L7, after rulin9 that the '2 casual wor*ers, whosevotes are bein9 challen9ed, were not entitled to vote in the certification election.

KILUS!-"LLI contends that after findin9 that the '2 wor*ers are re9ular employees of KI/B6%L7, /inister Sanche= should have remanded the representationcase to the med-arbiter instead of declarin9 UK06U-5:$;" as the winner in thecertification election and settin9 aside the med-arbiter<s order which allowed the '2casual wor*ers to cast their votes.

%espondents ar9ue that since the issues of re9ulari=ation and representation areclosely interrelated and that a resolution of the former inevitably affects the latter, itwas necessary for the former labor minister to ta*e co9ni=ance of the representationissue3 that no timely motion for reconsideration or appeal was made from his decisionof !ovember +, +)' which has become final and e8ecutory3 and that the aforesaiddecision was impliedly accepted by KILUS!-"LLI when it demanded fromKI/B6%L7 the issuance of re9ular appointments to its affected members incompliance with said decision, hence petitioner employees are now stopped fromuestionin9 the le9ality thereof.

;e uphold the authority of former /inister Sanche= to assume 4urisdiction over theissue of the re9ulari=ation of the '2 casual wor*ers, which fact is not even disputed byKILUS!-"LLI as may be 9leaned from its reuest for an interim order in the

notice of stri*e case (BL%-!S-1-+'2-'#, as*in9 that the re9ulari=ation issue beimmediately resolved. Eurthermore, even the med-arbiter who ordered the holdin9 of the certification election refused to resolve the protest on the 9round that the issueraised therein correctly pertains to the 4urisdiction of the then labor minister. !oopposition was offered by KILUS!-"LLI. ;e hold that the issue of re9ulari=ationwas properly addressed to the discretion of said former minister.

Gowever, the matter of the controverted pronouncement by former /inister Sanche=,as reaffirmed by respondent secretary, re9ardin9 the winner in the certification electionpresents a different situation.

It will be recalled that in the certification election, UK06U-5:$;" came out as thewinner, by 9arnerin9 a ma4ority of the votes cast therein with the e8ception of '2ballots which were sub4ect to challen9e. In the protest filed for the openin9 and

countin9 of the challen9ed ballots, KILUS!-"LLI raised the main and soleuestion of re9ulari=ation of the '2 casual wor*ers. :he med-arbiter refused to act onthe protest on the 9round that the issue involved is within the 4urisdiction of the then/inister of Labor. KILUS!-"LLI then sou9ht an interim order for an earlyresolution on the employment status of the casual wor*ers, which was one of theissues included in the notice of stri*e filed by KILUS!-"LLI in BL% 0ase !o. !S-1-+'2-'. 0onseuently, /inister Sanche= rendered the uestioned decision findin9that the wor*ers not en9a9ed in 4anitorial and yard maintenance service are re9ular employees but that they became re9ular only on the date of his decision, that is, on!ovember +, +)', and, therefore, they were not entitled to vote in the certification



election. "n the basis of the results obtained in the certification election, /inister Sanche= declared UK06U-5:$;" as the winner.

:he pivotal issue, therefore, is when said wor*ers, not performin9 4anitorial or yard

maintenance service, became re9ular employees of KI/B6%L7.

;e find and so hold that the former labor minister 9ravely abused his discretion inholdin9 that those wor*ers not en9a9ed in 4anitorial or yard maintenance serviceattained the status of re9ular employees only on !ovember +, +)', which thusdeprived them of their constitutionally protected ri9ht to vote in the certification electionand choose their ri9htful bar9ainin9 representative.

:he Labor 0ode defines who are re9ular employees, as followsC

rt. >. Regular and Casual Employment . H :he provisions of written a9reement to the contrary not withstandin9 and re9ardlessof the oral a9reements of the parties, an employment shall bedeemed to be re9ular where the employee has been en9a9ed to

perform activities which are usually necessary or desirable in theusual business or trade of the employer, e8cept where theemployment has been fi8ed for a specific pro4ect or under thecompletion or termination of which has been determined at thetime of the en9a9ement of the employee or where the wor* or services to be performed is seasonal in nature and theemployment is for the duration of the season.

n employment shall be deemed to be casual if it i s not coveredby the precedin9 para9raphCProvided , :hat any employee whohas rendered at least one year of service, whether such service iscontinuous or bro*en, shall be considered a re9ular employeewith respect to the activity in which he is employed and hisemployment shall continue while such activity e8ists.

:he law thus provides for two. *inds of re9ular employees, namelyC (+# those who areen9a9ed to perform activities which are usually necessary or desirable in the usualbusiness or trade of the employer3 and (# those who have rendered at least one year of service, whether continuous or bro*en, with respect to the activity in which they areemployed. :he individual petitioners herein who have been ad4ud9ed to be re9ular employees fall under the second cate9ory. :hese are the mechanics, electricians,machinists machine shop helpers, warehouse helpers, painters, carpenters, pipefittersand masons It is not disputed that these wor*ers have been in the employ of KI/B6%L7 for more than one year at the time of the filin9 of the 5etition for certification election by KILUS!-"LLI.

"win9 to their len9th of service with the company, these wor*ers became re9ular employees, by operation of law, one year after they were employed by KI/B6%L7throu9h %!K. ;hile the actual re9ulari=ation of these employees entails themechanical act of issuin9 re9ular appointment papers and compliance with such other operatin9 procedures as may be adopted by the employer, it is more in *eepin9 with

the intent and spirit of the law to rule that the status of re9ular employment attaches tothe casual wor*er on the day immediately after the end of his first year of service. :orule otherwise, and to instead ma*e their re9ulari=ation dependent on the happenin9of some contin9ency or the fulfillment of certain reuirements, is to impose a burdenon the employee which is not sanctioned by law.

:hat the first stated position is the situation contemplated and sanctioned by law isfurther enhanced by the absence of a statutory limitation before re9ular status can beacuired by a casual employee. :he law is e8plicit. s lon9 as the employee hasrendered at least one year of service, he becomes a re9ular employee with respect tothe activity in which he is employed. :he law does not provide the ualification that theemployee must first be issued a re9ular appointment or must first be formally declaredas such before he can acuire a re9ular status. "bviously, where the law does notdistin9uish, no distinction should be drawn.

:he submission that the decision of !ovember +, +)' has become final ande8ecutory, on the 9rounds that no timely appeal has been made therefrom and thatKILUS!-"LLI has impliedly acceded thereto, is untenable.

%ule '1 of the %ules of 0ourt allows ori9inal petitions for certiorari from decisions or orders of public respondents provided they are filed within a reasonable time. ;ebelieve that the period from anuary ), +)&, when the motions for reconsiderationseparately filed by KILUS!-"LLI and KI/B6%L7 were denied, to /arch +', +)&,when the petition in $.%. !o. &&') was filed, constitutes a reasonable time for availin9 of such recourse.

;e li*ewise do not subscribe to the claim of respondents that KILUS!-"LLI hasimpliedly accepted the uestioned decision by demandin9 compliance therewith. In

the letter of KILUS!-"LLI dated !ovember 2, +)' 2; addressed to the le9alcounsel of KI/B6%L7, it is there e8pressly and specifically pointed out that KILUS!-"LLI intends to file a motion for reconsideration of the uestioned decision but that,in the meantime, it was demandin9 the issuance of re9ular appointments to the casualwor*ers who had been declared to be re9ular employees. :he filin9 of said motion for reconsideration of the uestioned decision by KILUS!-"LLI, which was later denied, sustains our position on this issue and denies the theory of estoppelpostulated by respondents.

"n the basis of the fore9oin9 circumstances, and as a conseuence of their status asre9ular employees, those wor*ers not perforce 4anitorial and yard maintenance service



were performance entitled to the payment of salary differential, cost of livin9allowance, +th month pay, and such other benefits e8tended to re9ular employeesunder the 0B, from the day immediately followin9 their first year of service in thecompany. :hese re9ular employees are li*ewise entitled to vote in the certificationelection held in uly +, +)'. 0onseuently, the votes cast by those employees not

performin9 4anitorial and yard maintenance service, which form part of the '2challen9ed votes, should be opened, counted and considered for the purpose of determinin9 the certified bar9ainin9 representative.

;e do not find it necessary to disturb the findin9 of then /inister Sanche= holdin9 asle9al the service contract e8ecuted between KI/B6%L7 and %!K, with respect tothe wor*ers performin9 4anitorial and yard maintenance service, which is supported bysubstantial and convincin9 evidence. Besides, we ta*e 4udicial notice of the 9eneralpractice adopted in several 9overnment and private institutions and industries of hirin9a 4anitorial service on an independent contractor basis. Eurthermore, the occasionaldirectives and su99estions of KI/B6%L7 are insufficient to erode primary andcontinuous control over the employees of the independent contractor. 2< Lastly, theduties performed by these wor*ers are not independent and inte9ral steps in or aspects of the essential operations of KI/B6%L7 which is en9a9ed in themanufacture of consumer paper products and ci9arette paper, hence said wor*erscannot be considered re9ular employees.

:he reinstatement of %oue imene= without bac*wa9es involves a uestion of factbest addressed to the discretion of respondent secretary whose findin9 thereon isbindin9 and conclusive upon this 0ourt, absent a showin9 that he committed a 9raveabuse in the e8ercise thereof.

;G6%6E"%6, 4ud9ment is hereby rendered in $.%. !o. &&')C

+. "rderin9 the med-arbiter in 0ase !o. %>2-"A-/-2-+1-' to open and count the '2challen9ed votes, and that the union with the hi9hest number of votes be thereafter

declared as the duly elected certified bar9ainin9 representative of the re9ular employees of KI/B6%L73

. "rderin9 KI/B6%L7 to pay the wor*ers who have been re9ulari=ed their differentialpay with respect to minimum wa9e, cost of livin9 allowance, +th month pay, andbenefits provided for under the applicable collective bar9ainin9 a9reement from thetime they became re9ular employees.

ll other aspects of the decision appea led from, which are not so mod ified or affectedthereby, are hereby EEI%/6A. :he temporary restrainin9 order issued in $.%. !o.&&') is hereby made permanent.

:he petition filed in $.%. !o. &&)+ is hereby AIS/ISS6A.

S" "%A6%6A.

Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.

Kimberly vs. Drilon .docx

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