KIMBERLY INDEPENDENT LABOR UNION v.

DRILON
REGALADO, J.: May 9, 1990 G.R. No. 77629.

Doctrine 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.
Summary KILUSAN is a new union. It filed for petition for certification of election. They lost because 64 casual workers
were challenged ballots. Labor Minister Drilon ruled that their regularization was effective only on Nov.
1986. SC says that these workers became regular employees by operation of law, one year after they were
employed by KIMBERLY through RANK.

Facts  KimberlyClark Philippines, Inc. (KIMBERLY) executed a threeyear collective bargaining agreement
(CBA) with United KimberlyClark Employees UnionPhilippine Transport and General Workers’
Organization (UKCEUPTGWO) which expired on June 30, 1986.
 Within the 60day 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
(KILUSAN-OLALIA)
 KILUSANOLALIA filed a petition for certification election in the Ministry of Labor and Employment
(MOLE). KIMBERLY and UKCEUPTGWO did not object to the holding of a certification election BUT
objected to the inclusion of the socalled contractual workers whose employment with KIMBERLY was
coursed through an independent contractor, Rank Manpower Company (RANK), as among the qualified
voters.
 Pending resolution of the Petition for Certification of Election, KILUSANOLALIA filed a Notice of Strike
charging KIMBERLY with unfair labor practices
 KILUSANOLALIA declared a strike at KIMBERLY’s premises in San Pedro, Laguna on May 23, 1986.
 MOLE - issued an assumption 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
 In obedience to said assumption order, KILUSANOLALIA terminated its strike and picketing activities
effective June 1, 1986 after a compliance agreement was entered into by it with KIMBERLY
 Med Arbiter - issued an order declaring the following as eligible to vote in the certification
election; regular rankandfile laborers/employees, the 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;
 During the preelection conference, 64 casual workers were challenged by KIMBERLY and UKCEU-
PTGWO on the ground that they are not employees of KIMBERLY but of RANK. However, 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 (Old union won)

 KILUSANOLALIA filed with the medarbiter 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.
 KIMBERLY filed an opposition to the protest and motion, asserting that there is no employer employee
relationship between the casual workers and the company
 MOLE - The other casual employees not performing janitorial and yard maintenance services
were deemed laboronly contractuals and since laboronly 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
 KIMBERLY filed a motion for reconsideration with respect to the regularization of contractual workers
 In the meantime, KIMBERLY and UKCEUPTGWO 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.
 Labor Minister Drilon - denied both motions for reconsideration filed by KIMBERLY and
 KILUSAN OLALIA; workers not engaged in janitorial or yard maintenance service attained the
status of regular employees only on November 13, 1986 (remember July 1, 1986 botohan)
 KIMBERLY pointed out that the company and UKCEUPTGWO have concluded a new collective
bargaining agreement which had been ratified by 440 out of 517 members of the bargaining unit
 In a separate case that reached the SC – SC issued TRO enjoining respondents from enforcing the
decision recognizing respondent UKCEUPTGWO as the exclusive bargaining representative of all
regular rankandfile employees in the establishment of respondent company.
 In another separate case that reached the SC – KILUSANOLALIA filed another notice of strike with
the Bureau of Labor Relations. Court disallowed but it proceeded to strike. KIMBERLY filed a petition for
injunction with NLRC. NLRC issued TRO. KILUSANOLALIA filed another petition for certiorari and
prohibition with SC, questioning the validity of the temporary restraining orders issued by the NLRC.
(dunno how this is relevant)

KILUSANOLALIA contends that after finding that the 64 workers are regular employees of KIMBERLY,
Minister Sanchez should have remanded the representation case to the medarbiter, instead of declaring
UKCEUPTGWO 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.
Ratio/Issue
s I. WON MOLE Minister Sanchez had jurisdiction over the issue of regularization of the 64 casual
workers? YES
 This fact is not even disputed by KILUSANOLALIA as may be gleaned from its request for an interim
order in the notice of strike case, asking that the regularization issue be immediately resolved.
 Furthermore, even the medarbiter 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 KILUSANOLALIA. We hold that the issue of
regularization was properly addressed to the discretion of said former minister.

II. When did the workers not performing janitorial or yard maintenance service, became regular
employees of KIMBERLY? Before the elections
 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 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 KILUSANOLALIA.
 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.
 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.
 These regular employees are likewise entitled to vote in the certification election held in 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.
Held Ordering the medarbiter in Case No. R04ODM4 1586 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;

Prepared by: A. Cayosa