Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-39575 August 31, 1978
GOVERNMENT SERVICE INSURANCE SYSTEM,
petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM SUPERVISORS' UNION, THE COURT OF INDUSTRIAL RELATIONS AND/OR THE NATIONAL LABOR RELATIONS COMMISSION, respondents.
Leopoldo M. Abellera Manuel M Lazaro, Vicente M. Constantino, Jr., Office of the Gov't. Corporate Counsel and Romulo P. Untalan Legal Officer of GSIS for petitioner.
Magadia & Uy for respondent Union.
Gabriel Manansala for respondent Dr. Orlando Misa.
GUERRERO, J.:
This is a petition for review on certiorari of the Order dated October 8, 1974 of the Court of Industrial Relations in CIR Case No. 87- IPA entitled "Government Service Insurance System Supervisors' Union GSISSU Petitioner, vs. Government Service Insurance System, Respondent," which Order was affirmed by the CIR en banc in its Resolution of October 25, 1974 directing the Government Service Insurance System to Appoint Dr. Andrea Moral as Acting Assistant Medical Director in place of Dr. Orlando Misa, the. present incumbent .
On February 27, 1969, a strike was called and staged by the Government Service Insurance System Supervisors' Union GSISSU in protest against the discriminatory acts constituting unfair labor practices in matters of promotion, among others, committed by the management of the Government Service Insurance System against the GSISSU and its members.
The labor dispute was certified by the President of the Philippines to the Court of Industrial Relations for compulsory arbitration. On March 5, 1969, the Court of Industrial Relations issued a return-to- work order which, among others, required the General Manager of the GSIS and the President of the GSISSU to sit down together and amicably settle the disputes relative to questioned appointments and promotions complained of by the GSISSU as discriminatory. The General Manager thereafter met and rectified many of the demands of the Union but the dispute continued.
On March 8, 1969, the Government Service Insurance System Supervisors' Union filed a petition with the Court of industrial Relations stating the stand of the GSISSU on the strike and the causes thereof as follows: (1) consistent refusal of the GSIS to bargain with the petitioner and (2) union busting activities of the GSIS and its continuing commission of unfair labor practices on 11 specific and separate counts. It alleged that promotions are based on union affiliation and that to further discourage membership in the GSISSU the GSIS bargained with a rank and file union in the GSIS on the terms and conditions of employment of employees who pertain to the certified supervisory bargaining unit, such that promotions to positions in Pay Classes 7 to 13 were processed by a CBA Personnel, Pool composed of rank and file employees.
The GSIS through the Government Corporate Counsel answered on March 29, 1969 the petition and denied the imputed acts of discrimination; the GSIS alleged that it did not interfere in the employees' right to self-organization and never considered union affiliation as a ground for promotion; that promotions are made on the basis of competence, merit and qualification to hold the position and on the basis of appropriate civil service eligibility; that promotions to position in Pay Classes 7 to 13 are not processed by the CBA Personnel Pool composed of rank and file employees; and it finally prayed that the strike be declared illegal
Thereafter, the GSISSU Med a supplemental petition dated January 13, 1970, specifying, among others, that the GSIS had failed and refused to revoke or amend several questionable office orders so as to enable the substitution of personnel as in the case of Orlando Misa as Acting Assistant Manager, Medical Department, to be replaced by Demetrio Lopez or Andrea Moral (par. 6 [e] of the Supplemental Petition).
Answering the supplemental petition, the GSIS averred in its answer under par. 6e dated February 26, 1970 that in point of qualification, Dr. Orlando Misa had the highest points over the other aspirants and that in the judgment of the GSIS, Dr. Misa was best qualified to occupy the position of Acting Assistant Manager, Medical Department, GSIS, as shown below:
(e) Re: Case of Dr. Orlando Misa, Actg. Assistant Manager, Medical Department vs. Demetrio Lopez or Andrea Moral.
An evaluation of the qualifications of these officials, based on (1) rank or salary; (2) efficiency rating, (3) education and training, (4) seniority in the GSIS; (5) seniority in the same department; and (6) civil service eligibility and in-service training, shows the following.
|
Name
|
Points
|
|
Orlando Misa
|
64.68
|
|
Demetrio Lopez
|
63.17
|
|
Andrea Moral
|
63.97
|
It is clear that Dr. Misa has the highest points. He had undergone a special training in Madrid where he participated in a course "La Especialization Medico de la Seguridad Social" of the Central International de Formacion de Technics of the Organization Ibero-Americano de Seguridad Social.
Before a designation was made, the qualifications of Dr. Misa and those of Drs. Demetrio Lopez, Andrea Moral and other all medical supervisors in the Medical Department, were carefully scrutinized and evaluated. As a matter of fact even only a cursory glance at their respective efficiency ratings for the last three rating periods ending June 30, 1968 as appearing below will reveal that Dr. Misa always had a better efficiency rating than any of them except only as of June 30, 1968 when Dr. Lopez had the same rating.
|
Name
|
As of June 30, 1967
|
As of December 31, 1967
|
As of June 30, 1968
|
|
Orlando Misa
|
91.6
|
91.6
|
88.9
|
|
Andrea Moral
|
90.1
|
90.1
|
88.6
|
|
Demetrio Lopez
|
88.3
|
88.3
|
88.9
|
In the selection of officials for such a high position in the supervisory level it is always part of the objective to choose one among prospective appointees who has demonstrated some qualities of leadership. This is obviously an essential element because a super visor accomplishes things not only by himself but mostly thru others. A supervisor should be a good leader. Believe the Office Order designating Dr. Misa is justified. Furthermore, the following information is relevant:
DE. ORLANDO MISA
Appointed Clinic Supervisor..........................................................July 1, 1960
Appointed Medical Supervisor.......................................... December 16, 1962
DR. DEMETRIO LOPEZ
Appointed Medical Officer which is below the rank of Cc Supervisor............................................................... 1960
Appointed Medical Supervisor.........................................December 16, 1962
DR. ANDREA MORAL
Appointed Medical Officer........................................................................1960
Appointed Clinic Supervisor.....................................................................1961
Appointed Medical Supervisor.........................................December 16,1962
(Records, pp. 114-115)
The Court of Industrial Relations thereupon commissioned Atty. Francisco de los Reyes as Hearing Officer to receive the evidence and submit his report on the specification, among others, "... (5) that the respondent (GSIS) to discourage membership in the petitioning union discriminated against its members by said respondent's failure and refusal to upgrade and/or convert the position of ... (e) Dr. Orlando Misa as Acting Assistant Manager, Medical Department, to be replaced by Demetrio Lopez or Andrea Moral."
After receiving the evidence, the Hearing Officer submitted his report, and recommended that "it would seem to be equitable that Dra. Andrea Moral should have been appointed Acting Assistant Medical Director rather than Dr. Orlando Misa." Accordingly, the Court thru Acting Associate Judge Pedro F. Perez in his Order dated October 8, 1974 approved the Report and adopted it as the Court's Order in the case, for the GSIS to appoint Dra. Andrea Moral as Acting Assistant Medical Director in place of Dr. Orlando Misa, present incumbent.
The GSIS and the private respondent, Dr. Orlando Misa, moved for reconsideration of the Order above-cited which the GSISSU oppose On October 25, 1974, the Court en banc denied the motions for reconsideration and affirmed the Order of October 8, 1974. The GSIS now comes to Us on appeal assailing the legality and/or validity of the aforementioned Order and the Resolution en banc of the Court of Industrial Relations.
Petitioner lists the following assignment of errors;
I
The defunct Court of Industrial Relations, hereinafter merely referred to as CIR, now the National Labor Relations Commission, hereinafter merely referred to as NLRC, committed a grave abuse of discretion amounting to lack of and/or in excess of jurisdiction in substituting the judgment or discretion of your petitioner Government Service Insurance System, hereinafter merely referred to as GSIS, as to who is best qualified to occupy the position of the Assistant Medical Director in the GSIS;
II
The defunct CIR or the NLRC committed a grave abuse of discretion amounting to lack of and/or in excess of jurisdiction when it issued the orders substituting the judgment or discretion of GSIS contrary to CIR's own findings;
III
The defunct CIR now the NLRC committed a grave abuse of discretion amounting to lack of and/or in excess of jurisdiction in holding that the person claiming a right to an office may still bring an action one year and three months after another person had been appointed to the same position;
IV
The defunct CIR now the NLRC committed a grave abuse of discretion amounting to lack of and/or in excess of jurisdiction in not holding that the instant case has now become moot and academic.
The contention of the petitioner that the Court of Industrial Relations, in ordering the GSIS to appoint Dr. Andrea Moral as Acting Assistant Medical Director, replacing the present incumbent, Dr. Orlando Misa, substituted the judgment or discretion of management and thereby committed a grave abuse of discretion ing to lack and/or excess of jurisdiction, is meritorious The right to select and appoint employees is the prerogative of the employer, the privilege of management because such right interest in the conduct and operation f the business by the employer. Labor may not impose-nor demand who is to be appointed originated logged management of his discretion or judgment lodged in management may not therefore, be controlled, interfered with or substituted by the court of Industrial Relations upon petition or representation of the striking labor union.
In the case of National Labor Union, petitioner, vs. Insular Yebana Tobacco Corporation, respondent, 2 SCRA 924, 931, the Supreme Court, speaking thru Justice labrador, said:
A similar or parallel case is that t his National Labor Relations Board vs. Union Pacific Stages, 99 F. (2d) pp. 153, 177-179, in which the following principles are laid down.
... The National Labor Relations At was not intended to empower the National Labor Relations Board to substitute its judgment for that of the employer in the conduct of his business, and did not deprive the employer of the right to select or dismiss his employees for any cause except where the employee we s actually discriminated against because of his union activities or affiliation. It did not authorize the Board to absolve employees from compliance with reasonable regulations for their government and guidance. The Act does not vest in the Board managerial authority ...
In American labor jurisprudence, Rothenberg on Labor Relations, commenting on the provisions of the Labor Management Relations Act prohibiting an employer form discriminating against an employee or prospective employee because of the latter's union activities, the following principles are held: "(I)t must not be supposed that the Act is intended to or permits usurpation of the employer's normal prerogatives in hiring or firing employees. The prohibiting of the Act is not asynonym for deprivation of those basic rights of an employer, but is merely an injunction against the use of the right to employ or discharge as an instrument of discrimination, interference or oppression because of one's labor activities."
In absence of the use of the right of Hiring and firing as a vehicle for discrimination, the exercise of these rights by the employer are unimpaired by the Act. They may not be usurped by the National Labor Relations Board in an effort by that agency to dictate to an employer, who has not violated the Act, who shall be employed or discharged.
In absence of the use of these rights for the purpose of interfering with the rights guaranteed by the Act to employees or applicants to employment, an employer's right to "hire and fire" remains inviolate and unabridged. Presupposing that such action is not intended to interfere with or discourage the employeesz union or labor activities or affiliations in violation of the Act and further, assuming that, no breach of an existing contract is entailed, an employer is free to hire, demote, reprimand suspend, discipline, transfer, or discharge his employees or any of them even as he would in absence of the Act. The employer may exercise these rights at will and for any cause or reason, good or bad, just or unjust or for no reason at are The sole prohibition prescribed by the Act is directed against the use of these rights to disturb or impede the exercise by employees or applicants for employment of the rights assured to them by the Act. Whether or not a given exercise by an employer of his rights constitutes a violation of the Act, depends on whether or not the evidence discloses that his conduct was calculated to or did interfere with employees' rights under the Act. It is clear, however, that an employer's exercise of his prerogatives with or without reason, does not, per se constitute proof of coercion or similar interference with the employee's rights or of the commission of an 'unfair labor practice. Rothenberg on Labor Relations, pp. 398- 400).
In the case at bar, petitioner exercising the privilege, prerogative or right of management had appointed Dr. Orlando Misa as Acting Assistant Medical Director as of October 1, 1968, after considering and evaluating the rank or salary, efficiency rating, education and training, seniority in the GSIS, seniority in the same department and civil service eligibility and in service training of the qualified personnel at its Medical Department, namely Dr. Orlando Misa, Dr. Andrea Moral and Dr. Demetrio Lopez. The GSIS found that based on the "CPA Evaluation Sheet on Promotion" Dr. Misa was the best qualified for the position after an evaluation of their respective qualifications.
The evaluation, which has been quoted earlier, appears to be factual, fair and made in good faith. It has not been shown by any credible proof submitted to the Hearing Officer or to the Court of Industrial Relations that such selection was whimsical, unfair or arbitrary. The claim of the respondent Union that the designation of Dr. Misa and not Dr. Moral is discriminatory on account of the latter's being a member of the union has not been sufficiently proved for there is nothing in the Report submitted by the Hearing Officer clearly indicating that the GSIS preferred Dr. Misa instead of Dr. Moral in order to bust the GSISSU or to discourage membership in said union. The Report made no finding if the protagonists belong to different camps or even slightly that for union considerations, the GSIS favored one or the other. This is evident in the Report which We quote:
Atty. Francisco de los Reyes, Hearing Examiner commissioned to receive the evidence, submitted his report in the above-entitled case which is quoted here under, to wit:
Among the issues raised in the above-entitled case which was certified by the President of the Philippines as embodied in Supplementary Petition filed in behalf of the Government Service Insurance System Supervisors Union, GSISSU in short (pp. 180 to 199 of records), particularly in relation to the present incident, the following are the specifications:
xxx xxx xxx
5. That the respondent, to discourage membership in petitioner union, discriminated against its members by said respondent's failure and refusal to upgrade and/or convert the position of-
L. xxx xxx xxx
(e) Dr. Orlando Misa as Acting Assistant Manager, Medical Department, to be replaced by Demetrio Lopez or And dread Moral.
The Office Order appears to have been questioned by petitioner GSISSU
The GSIS in its Answer filed in February 27, 1970 with respect to the designation of Orlando Misa as Acting Assistant Manager, Medical Department answered, by way of denying the material averments of the said Supplemental Petition and in relation to Orlando Misa stated that an evaluation of the qualifications of those officials, based on (1) rank or salary;(2) efficiency rating, (3) education and training, (4) seniority in the GSIS(5) seniority in the same department; and (6) civil service elegibility and in-service training, claimed that Dr. Misa has the highest points. The records of this case do not show that Dr. Demetrio Lopez, the other person who supposedly is not protesting the appointment in an acting capacity of Dr. Misa has ever made any steps by way of pursuing his claim. So that what remains here is the GSISSU Supplemental Petition in behalf of Dra. Andrea Moral
Neccesarily, the determination of the above-named specifications as embodied in the said supplemental petition of the GSISSU would revolve on the different qualifications of both Dr. Misa and Dra. Moral, since it is evident that the discrimination will primarily be based on their respective qualifications.
This must be so, considering the background of the instant case where it is a matter of judicial as well as common knowledge that during the period or years wherein these occurences or circumstances happened, the union rivalry was so intense between what is known as the GSIS Employees association GSISEA and the GSIS Supervisors Union GSISSU And as found in the records of the different cases in this Court, the rivalry involved the classification of positions with which these unions sought to represent in the bargaining table, particularly those positions involving Pay Clan" 6 to 8. We should, therefore, proceed in accordance with the foregoing consideration, on a comparative inquiry into the respective qualifications of both Dra. Moral and Dr. Misa
xxx xxx xxx
On the basis of the foregoing testimony, together with the different parties submitted, it would am different exhibits of both parties submitted in his case m o be equitable that Dra. Andrea Moral should have been appointed Acting Assistant Medical Director rather than Dr. Orlando Misa.
WHEREFORE, it is respectfully recommended that this particular incident in the Supplemental Petition of 1970 be decided in favor of the petitioner GSISSU and the GSIS should be Wanted to appoint Dra. Andrea Moral as Acting Assistant Medical Director. (Records, pp. 203-209)
The findings of the Hearing Officer that "the determination of the above-named specifications as embodied in the said supplemental petition of the GSISSU would revolve on the different qualifications of both Dr. Misa and Dra. Moral, since it is evident that the discrimination will primarily be based on their respective qualifications," do not support the contention of the respondent union that the GSIS discriminated against its members by the latter's refusal and failure to up-grade and/or convert the position of Demetrio Lopez or Andrea Moral as Acting Assistant Medical Director, Medical Department. It cannot be logically maintained that simply because Dr. Misa was preferred over the recommendees of the union that the preference constituted an act of discrimination against the union on account of alleged union activities of either Dr. Moral or Dr. Lopez, of which none was cited or hinted to say the least, in the Report of the Hearing Officer. If the choice of management did not fall on either of the two union candidates, it was so by reason of their respective professional qualifications as admitted in the Report. The fact that Dr. Misa was designated as Acting Assistant Medical Director at a time when there was intense rivalry between the two unions is no proof that there was discrimination on the part of GSIS management to discourage membership in the respondent Union. We also note that even the criterion used in the Report as equitable basis of the recommendation submitted to the CIR, although favoring the union recommended, centered on the professional efficiency, performance and standing of the aspirants concerned which cannot, by any stretch of imagination, constitute an unfair labor practice. In the last analysis, in choosing the appointee or making the designation, there must necessarily be a selection, which cannot be avoided, among different contenders of varying personal circumstances and Capabilities, including dissimilar professional skills, talents and faculties such that We cannot accept that the final selection was p y motivated by union considerations or affiliation in the absence of clear proof to the contrary.
Moreover, We cannot lose sight of the fact that the GSIS is a governmental agency, although performing a proprietary function (GSISEA vs. Alvendia, 108 Phil. 505; Boys Scouts of the Phils. vs. Araos 102 Phil. 1080) and that the officers and personnel therein while entitled to the same rights and privileges under the Industrial Peace Act are still governmental personnel covered by and subject to civil service rules and regulations. Hence, in matters of appointment, discipline, suspension and removal, the general principles of public administration must govern their conduct, the terms and conditions of their employment. Thus, that the power of appointment is largely discretional that the appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified for any competitive position in the civil service (Jimenez vs. Francisco, 100 Phil. 1025); and that the appointing power is not restricted by a rigid, straight, and hard-and-fast rule in the choice of personnel, particularly of a supervisory character as in the case at bar, are rules that hold strong and pertinent government here, considering that in so exercising such power, the overriding consideration is the promotion of the public welfare and the exigencies of the public service (Reyes va. Abeleda, 22 SCRA 825; Aguilar vs. Nieva, Jr., 40 SCRA 113).
Furthermore, it is to be noted that the position to which the candidates are contending involves medical duties of supervision over the regional offices of the GSIS and if Dr. Orlando Misa was designated to the position, according to the Report because of "(t)he most important factor that we have to take into account is the nature of the job because that was the time that the Assistant General Manager in charge of the regional office of the GSIS requested me to appoint someone who could easily be picked up without any question and that he could easily be told right away for supervision in the regional offices. Another thing is that the Assistant General Manager wanted somebody to be appointed who could accompany him in going around the different regional offices and of course before that he was already going out along with Dr. Misa and he told me that it should be Dr. Misa so that he will not have a hard time in g somebody who could go with him around the different regional offices. He wants somebody who could just be called up at any time to go with him or to be requested to go around the different regional offices for inspection. I have that also in mind and so I made my recommendation because I believe that Dr. Orlando Misa who is a male physician can do the job better so that prompted me to recommend him to that position as Acting Assistant Medical Director. ..." It stands to reason that the principal consideration for such designation was a choice of who can do the job better, Dr. Misa or Dr. Moral, and not by reason of any union affiliation, activity, sentiment or sympathy manifested by one or the other.
Assuming that Dr. Moral was next in rank and entitled to the designation as Acting Assistant Medical Director in two of the six categories considered in the promotion to a higher position, that is, education and training, and seniority, whereas Dr. Misa outranks her in the other four departments and that is, (1) rank or s (2) efficiency rating, (3) seniority in the same department; and (4) civil service eligibility and in-service training, the basic consideration that must rule the exercise of discretion by the appointing power is to effect efficiency and responsibility in public service, even to the disappointment of those aspirants longer in the service. The pronouncement of the Court in Aguilar vs. Nieva, Jr., 40 SCRA 11 3, gives the rationale for such rule and We quote:
Whatever sympathy might be elicited for public officials who had stayed long in the public service and who, for some reason or another, did not receive the promotion to which they felt they should be entitled, cannot obscure the discretion that the law leaves in the hands of the appointing officials. ... The basic intent of the law itself is to foster a more efficient public service. It is ever timely to keep in mind the public trust character of any governmental office. Its creation is justifiable only if it serves to assure that the functions of government, whether through the traditional public offices or government-owned or controlled corporations, be attended to with dispatch and competence. Necessarily then, -the appointing official especially so where his position is a constitutional creation, as in this case, must be left that necessary latitude of choice as to who can best discharge the responsibilities of the office where the vacancy occurs. This is what happened here, and no legal infirmity can validly he said to have vitiated such an appointment.
The respondent maintains that the rule advanced by the petitioner "that the CIR or NLRC cannot substitute the judgment or discretion of the GSIS as to who is best qualified or fitted to the position," citing Reyes vs. Abeleda, 22 SCRA 825; Aguilar vs. Nieva, 40 SCRA 113; Pineda vs. Claudia 28 SCRA 34; del Rosario vs. Subido, 31 SCRA 382 and the cases cited therein, is not applicable to the present case considering that this is a certified labor dispute, and that the correct point of inquiry is the extent of the powers of the Court of Industrial Relations in certified labor disputes. Respondent further contends that "When a case is certified to the CIR by the President of the Philippines pursuant to See. 10 of R.A. 875, the CIR is granted authority to find a solution to the industrial dispute; and the solution which the CIR has found under the authority of the presidential certification and conformable thereto cannot be questioned." (Radio Operators Association of the Philippines vs. Philippines Marine Officers Association, et al., 102 Phil. 526; Feati University vs. Bautista, 18 SCRA 1191).
We disagree with respondent's position in the light of the specific facts established in the case at bar which clearly sustain the basic right of management in hiring and firing employees, in regulating according to its own discretion and judgment, all aspects of employment which include work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of workers. These prerogatives of management may be availed of without liability provided they are exercised in good faith for the advancement of the employer's interest, and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, and provided further that. such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive o wanton manner, or out of malice or spite. (Labor and Social Legislation, Fernandez and Quiazon, pp. 19, 2 Admittedly the CIR has the power and authority to find the solution to this particular dispute when the case was certified to it by the President pursuant to Sec. 10 of the Industrial Peace Act and generally, such solution may not be questioned as the said solution may be considered to be within the broad discretion of the court. However, where, as in the case at bar, there is no factual basis of the solution ordered, where We find no substantial evidence to support the Order and the Resolution now being assailed by the petitioner, We hold that the CIR gravely abused its discretion and committed a reversible error. The Presidential certification is no authority for the CIR to exceed its discretion which amount to lack and/or in excess of jurisdiction.
We have discussed and resolved petitioner's first and second assigned errors, sustaining the contention of the petitioner, thereby rendering superfluous and unnecessary further consideration and resolution of the remaining assigned errors.
WHEREFORE, IN VIEW OF THE FOREGOING, the Order appealed from and the Resolution en banc of the defunct Court of Industrial Relations (now the National Labor Relations Commission) are hereby vacated and the same set aside. No pronouncement as to costs.
Petition granted.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muñoz Palma and Fernandez JJ., concur.
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