G.R. No.

107761 December 27, 1994

ASSOCIATION OF MARINE OFFICERS AND SEAMEN OF REYES AND LIM CO. (MANAGERS FOR CARGO MARINE
CORP.), petitioner,
vs.
HON. BIENVENIDO E. LAGUESMA, REYES AND LIM CO. INC. (MANAGERS FOR CARGO MARINE
CORP.),respondent.
Ruscius G. Zaragoza for petitioner.
Jonathan M. Polines for private respondent.

ROMERO, J.:
The question before us in this petition for certiorari is whether or not the major patron, minor patron, chief mate and chief
engineer of a vessel are managerial employees.
Public respondent Undersecretary of Labor has ruled that they are, contrary to petitioner labor organization's contention
that they are rank and file employees who may form part of the union.

The facts antecedent to this petition are as follows:

The Association of Marine Officers and Seamen of Reyes and Lim Co., a legitimate labor organization, filed a petition for
certification election on March 11, 1992. On June 1, 1992 the Med-Arbiter issued an Order for the conduct of a certification
election in the bargaining unit covering the entire complement of four vessels.
He ruled that even as private respondent company alleges certain employees to be managerial, supervisory and
confidential employees (master, chief mate, second mate, third mate, radio officer, chief engineer and second engineer),
the records is bereft of any showing that the marine officers are performing managerial, supervisory, and confidential
functions. 1

The dispositive portion of the Med-Arbiter's Order reads:

WHEREFORE, on the foregoing consideration, let a certification election be conducted among the regular
marine officers and seamen of Reyes and Lim Co., Inc. (Managers for Cargo Marine Corp.) within twenty
(20) days from receipt hereof, subject to the usual pre-election conference of the parties to thresh out the
mechanics and other details of the election. The payroll of the company three (3) months prior to the filing
of the petition shall be used as the basis in determining the list of eligible voters.
The choices are:
a) Association of Marine Officers and Seamen of Reyes and Lim Co., Inc. (Managers for Cargo Marine
Corp.); and
b) No Union.

SO ORDERED. 2

Private respondent Reyes and Lim Co. Inc. appealed this Order to the Secretary of Labor and Employment on the issues
of employees' status as well as the composition of the bargaining unit. In a resolution dated October 8, 1992,
Undersecretary Bienvenido E. Laguesma modified the order and held that:
PREMISES CONSIDERED, the Resolution of the Med-Arbiter dated 01 June 1992 is hereby modified so
as to exclude Major Patron, Minor Patron, and Chief (Mate) and Chief Marine Engineer from the
bargaining unit.
SO RESOLVED. 3

Their motion for reconsideration having been denied for lack of merit on November 5, 1992, 4 petitioner comes to us
seeking to have the Resolution of public respondent set aside and to have us rule that the major patron, minor patron,
chief mate and chief engineer are not managerial employees but rank and file. As members of the rank and file, these
employees would be eligible to form part of the union and take part in the certification election.
To buttress their position that the aforementioned employees are not managerial but rank and file employees, petitioner
advances the following arguments.

Firstly, it is petitioner's belief that aside from having the power to execute management policies and to hire and fire,
transfer, suspend, lay-off, recall, discharge, assign or discipline employees, a managerial employee should also have the
power and prerogative to lay down management policies. Petitioner claims that the major patron, minor patron, and chief
mate and chief engineer do not have the power to lay down management policies because they merely navigate the bay
and rivers of Pasig and Bataan hauling liquefied petroleum (gasul). Moreover, private respondent's operations department
has "high-tech maritime gadgets and equipment" in order to monitor and direct the operations of the boats while en route
to its destination. 5

Secondly, petitioner asserts that the job descriptions submitted by private respondent Reyes and Lim Co., Inc. 6and relied
upon by public respondent Undersecretary of Labor do not apply to the situation of the aforementioned employees.
Furthermore, the job descriptions were not acknowledged and even outrightly denied by the workers themselves. 7 The
employees of Reyes and Lim Co., Inc. possess no seamen's book, for they do not traverse the high seas but merely the
bay and rivers from Pasig to Bataan. They therefore, are not covered by the job descriptions applicable to Filipino
seafarers, but are ordinary workers. 8
Finally, public respondent's determination of who are managerial employees constitutes a deprivation of the worker's right
to self-organization and free collective bargaining since such resolution is made during pre-election conference on
"inclusion-exclusion" proceedings. 9
Petitioner's arguments fail to persuade.
The only question for resolution is whether or not the major patron, minor patron, chief mate and chief engineer of the
vessels, M/T Banak, M/T Butane, M/T Biya, and M/T Alkane are managerial employees, and as such, not qualified,
therefore, to join a union.

Public respondent opined in the following manner:

An evaluation of the afore-mentioned job descriptions submitted by respondent-appellant vis-a-visArticle
212 (m) of the Labor Code, as amended, showed that the following are managerial positions, namely:
Major Patron, Minor Patron, Chief Mate and Chief Marine Engineer. This must be so, because among the
Major Patron's duties and functions are to take complete charge and command of the ship and to perform
the duties and responsibilities of a ship captain; a Minor Patron commands a vessel, plying within limits of
inland waterways, ports and estuaries, while a Chief Mate acts as the executive officer next in command
to the captain on board a ship; and a Chief Marine Engineer plans, coordinates the engine-room
department including supervision of subordinates. In the performance of said functions, it is clear that they
are vested with powers or prerogatives to lay down and execute management policies. 10

While petitioners assail public respondent for the use of the "Job Descriptions of Main Category of Particular Ranks and
Ratings of Filipino Seafarers" submitted by private respondent, they offer no other superior proof by way of reliability and
substance.
Such an attack on these job descriptions cannot be considered adequate. Apart from general claims made in a joint
affidavit executed by 18 employees, including the masters, chief mates and chief engineers of three vessels, 11 there
appears no other proof on record of the functions they actually perform on board the vessels and of the functions
performed by other marine officers of the same position.

To buttress their position, private respondents assert that these "Job Descriptions" have been adopted as reference by the
POEA and considered as matters of public knowledge in consonance with the provisions of the Code of Commerce,
Philippine Merchant Marine Rules and Regulations and customary maritime practice with respect to the inherent and
customary duties of captains, chief mates, and chief marine engineers on board the vessels. 12 This declaration remaining
unrebutted, we are led to the conclusion that the job descriptions submitted constitute industry practice, at the very least.
More importantly, the credence accorded by public respondent to these job descriptions is worthy of due respect. The
factual findings of quasi-judicial agencies, such as the Department of Labor and Employment which are supported by
substantial evidence, are binding on us and entitled to great respect considering their expertise in their respective fields. 13
Petitioner's failure to overcome the submissions of private respondent as regards these descriptions and to rebut the
same leaves us no alternative but to accept public respondent's evaluation of facts.

Furthermore, petitioner's arguments that the employees who work on board the vessels are not seamen bound by the job
descriptions, is untenable. The fact that they transport liquefied petroleum gas (LPG) and the vessels operate for only five
hours are immaterial for these do not remove them from the coverage of maritime law. While they haul LPG, they continue
to do so on board a vessel which traverses waters. Neither the length of operating time nor the area traveled would alter
the fact that the vessels are used as means of transportation by water and within the sphere of maritime law to which the
job descriptions are applicable. The workers on board are not, as petitioners would have us believe, in the category of
gasoline delivery helpers or ordinary employees. 14

We next consider the law concerning managerial employees.

The second paragraph of Article 82 referring to managerial employees in the Labor Code reads, thus:
. . . "managerial employees" refers to those whose primary duty consists of the management of the
establishment in which they are employed or of a department or subdivision thereof, and to other officers
or members of the managerial staff. . . .

Article 212 (m) of the Code further defines managerial employees as:
(m) "Managerial employee" is 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. . . ..

The implementing rules and regulations of the Labor Code further provide a more detailed definition of managerial
employees. Rule I, Book III, Section 2 states:
Sec. 2. Exemption. The provisions of this Rule shall not apply to the following persons if they qualify for
exemption under the conditions set forth herein:
(a) . . . .
(b) Managerial employees, if they meet all of the following conditions, namely:
(1) Their primary duty consists of the management of the establishment in which they are employed or of
a department or subdivision thereof;
(2) They customarily and regularly direct the work of two or more employees therein;
(3) They have the authority to hire or fire other employees of lower rank; or their suggestions and
recommendations as to the hiring and firing and as to the promotion or any other change of status of
other employees are given particular weight.
(c) . . . .
It is very significant to note that we are not dealing here with employees of an ordinary business establishment. The
business of a marine or shipping corporation is, by its very nature, different from other corporate concerns.
Petitioner claims that the marine officers in question must possess the power to lay down and formulate management
policies aside from just executing such policies.

Public respondent committed no error in concluding that the positions of major patron, minor patron, chief mate, and chief
engineer are managerial because the job descriptions on record disclose that the major patron's duties include taking
complete charge and command of the ship and performing the responsibilities and duties of a ship captain; the minor
patron also commands the vessel, plying the limits of inland waterways, ports and estuaries; the chief mate performs the
functions of an executive officer next in command to the captain; and the chief marine engineer takes over-all charge of
the operation of the ship's mechanical and electrical equipment. Public respondent's assessment of these managerial
functions of the subject officers has adequate basis and should not be disturbed.

The functions which these officers discharge pertain to the navigation of the vessel. Even if there are advanced
communications equipment on board, the importance of the position of the officers in assessing risks and evaluating the
vessel's situation remains indisputable. The exercise of discretion and judgment in directing a ship's course is as much
managerial in nature as decisions arrived at in the confines of the more conventional board room or executive office.
We find that there has been no grave abuse of discretion on the part of the respondent Undersecretary of Labor when it
ruled that the major patron, minor patron, chief mate and chief engineer are managerial employees who are not allowed
under Article 245 of the Labor Code to join, assist or form any labor organization.

With regard to the next issue, petitioners content that the determination of whether or not said employees are managerial
should be done during the pre-election conference on "inclusion-exclusion proceeding," and not during the processing of
their petition for certification election. We find this issue not a proper one for consideration since it is raised in this petition
for the first time. The well-settled principle that issues not raised in the court a quo cannot be raised for the first time on
appeal for being offensive to basic rules of fair play, justice, and due process applies even in labor cases. 15

IN VIEW WHEREOF, the instant petition is DISMISSED. The challenged resolution of the Undersecretary of Labor is
AFFIRMED.
SO ORDERED.
Bidin, Melo and Vitug, JJ., concur.
Feliciano, J., is on leave.

[G.R. No. 112574. October 8, 1998]

MERCIDAR FISHING CORPORATION represented by its President DOMINGO B. NAVAL, petitioner, vs. NATIONAL
LABOR RELATIONS COMMISSION and FERMIN AGAO, JR., respondents.
DECISION

MENDOZA, J.:
This is a petition for certiorari to set aside the decision, dated August 30, 1993, of the National Labor Relations
Commission dismissing the appeal of petitioner Mercidar Fishing Corporation from the decision of the Labor Arbiter in
NLRC NCR Case No. 09-05084-90, as well as the resolution dated October 25, 1993, of the NLRC denying
reconsideration.
This case originated from a complaint filed on September 20, 1990 by private respondent Fermin Agao, Jr. against
petitioner for illegal dismissal, violation of P.D. No. 851, and non-payment of five days service incentive leave for 1990.
Private respondent had been employed as a bodegero or ships quartermaster on February 12, 1988. He complained that
he had been constructively dismissed by petitioner when the latter refused him assignments aboard its boats after he had
reported to work on May 28, 1990.[1]
Private respondent alleged that he had been sick and thus allowed to go on leave without pay for one month from
April 28, 1990 but that when he reported to work at the end of such period with a health clearance, he was told to come
back another time as he could not be reinstated immediately. Thereafter, petitioner refused to give him work. For this
reason, private respondent asked for a certificate of employment from petitioner on September 6, 1990. However, when
he came back for the certificate on September 10, petitioner refused to issue the certificate unless he submitted his
resignation. Since private respondent refused to submit such letter unless he was given separation pay, petitioner
prevented him from entering the premises.[2]
Petitioner, on the other hand, alleged that it was private respondent who actually abandoned his work. It claimed that
the latter failed to report for work after his leave had expired and was, in fact, absent without leave for three months until
August 28, 1998. Petitioner further claims that, nonetheless, it assigned private respondent to another vessel, but the
latter was left behind on September 1, 1990. Thereafter, private respondent asked for a certificate of employment on
September 6 on the pretext that he was applying to another fishing company. On September 10, 1990, he refused to get
the certificate and resign unless he was given separation pay.[3]
On February 18, 1992, Labor Arbiter Arthur L. Amansec rendered a decision disposing of the case as follows:
ACCORDINGLY, respondents are ordered to reinstate complainant with backwages, pay him his 13th month
pay and incentive leave pay for 1990.
All other claims are dismissed.
SO ORDERED.

Petitioner appealed to the NLRC which, on August 30, 1993, dismissed the appeal for lack of merit. The NLRC
dismissed petitioners claim that it cannot be held liable for service incentive leave pay by fishermen in its employ as the
latter supposedly are field personnel and thus not entitled to such pay under the Labor Code. [4]
The NLRC likewise denied petitioners motion for reconsideration of its decision in its order dated October 25, 1993.
Hence, this petition. Petitioner contends:
I
THE RESPONDENT COMMISSION PALPABLY ERRED IN RULING AND SUSTAINING THE VIEW THAT FISHING
CREW MEMBERS, LIKE FERMIN AGAO, JR., CANNOT BE CLASSIFIED AS FIELD PERSONNEL UNDER ARTICLE 82
OF THE LABOR CODE.

II
THE RESPONDENT COMMISSION ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION WHEN IT UPHELD THE FINDINGS OF THE LABOR ARBITER THAT HEREIN PETITIONER HAD
CONSTRUCTIVELY DISMISSED FERMIN AGAO, JR., FROM EMPLOYMENT.

The petition has no merit.

Art. 82 of the Labor Code provides:
ART. 82. Coverage. - The provisions of this Title [Working Conditions and Rest Periods] shall apply to
employees in all establishments and undertakings whether for profit or not, but not to government employees,
field personnel, members of the family of the employer who are dependent on him for support, domestic
helpers, persons in the personal service of another, and workers who are paid by results as determined by the
Secretary of Labor in appropriate regulations.
..........
Field personnel shall refer to non-agricultural employees who regularly perform their duties away from the
principal place of business or branch office of the employer and whose actual hours of work in the field cannot
be determined with reasonable certainty.
Petitioner argues essentially that since the work of private respondent is performed away from its principal place of
business, it has no way of verifying his actual hours of work on the vessel. It contends that private respondent and other
fishermen in its employ should be classified as field personnel who have no statutory right to service incentive leave pay.
In the case of Union of Filipro Employees (UFE) v. Vicar,[5] this Court explained the meaning of the phrase whose
actual hours of work in the field cannot be determined with reasonable certainty in Art. 82 of the Labor Code, as follows:
Moreover, the requirement that actual hours of work in the field cannot be determined with reasonable certainty
must be read in conjunction with Rule IV, Book III of the Implementing Rules which provides:
Rule IV Holidays with Pay
Section 1. Coverage - This rule shall apply to all employees except:
..........
(e) Field personnel and other employees whose time and performance is unsupervised by the
employer xxx (Italics supplied)

While contending that such rule added another element not found in the law (Rollo, p. 13), the petitioner
nevertheless attempted to show that its affected members are not covered by the abovementioned rule. The
petitioner asserts that the companys sales personnel are strictly supervised as shown by the SOD (Supervisor
of the Day) schedule and the company circular dated March 15, 1984 (Annexes 2 and 3, Rollo, pp. 53-55).
Contrary to the contention of the petitioner, the Court finds that the aforementioned rule did not add another
element to the Labor Code definition of field personnel. The clause whose time and performance is
unsupervised by the employer did not amplify but merely interpreted and expounded the clause whose actual

hours of work in the field cannot be determined with reasonable certainty. The former clause is still within the
scope and purview of Article 82 which defines field personnel. Hence, in deciding whether or not an employees
actual working hours in the field can be determined with reasonable certainty, query must be made as to
whether or not such employees time and performance is constantly supervised by the employer.[6]
Accordingly, it was held in the aforementioned case that salesmen of Nestle Philippines, Inc. were field personnel:
It is undisputed that these sales personnel start their field work at 8:00 a.m. after having reported to the office
and come back to the office at 4:00 p.m. or 4:30 p.m. if they are Makati-based.
The petitioner maintains that the period between 8:00 a.m. to 4:00 or 4:30 p.m. comprises the sales personnels
working hours which can be determined with reasonable certainty.
The Court does not agree. The law requires that the actual hours of work in the field be reasonably
ascertained. The company has no way of determining whether or not these sales personnel, even if they report
to the office before 8:00 a.m. prior to field work and come back at 4:30 p.m., really spend the hours in between
in actual field work.[7]

In contrast, in the case at bar, during the entire course of their fishing voyage, fishermen employed by petitioner have
no choice but to remain on board its vessel. Although they perform non-agricultural work away from petitioners business
offices, the fact remains that throughout the duration of their work they are under the effective control and supervision of
petitioner through the vessels patron or master as the NLRC correctly held. [8]
Neither did petitioner gravely abuse its discretion in ruling that private respondent had constructively been dismissed
by petitioner. Such factual finding of both the NLRC and the Labor Arbiter is based not only on the pleadings of the parties
but also on a medical certificate of fitness which, contrary to petitioners claim, private respondent presented when he
reported to work on May 28, 1990.[9] As the NLRC held:
Anent grounds (a) and (b) of the appeal, the respondent, in a nutshell, would like us to believe that the Arbiter
abused his discretion (or seriously erred in his findings of facts) in giving credence to the factual version of the
complainant. But it is settled that (W)hen confronted with conflicting versions of factual matters, the Labor
Arbiter has the discretion to determine which party deserves credence on the basis of evidence received.
[Gelmart Industries (Phils.), Inc. vs. Leogardo, 155 SCRA 403, 409, L-70544, November 5, 1987].And besides,
it is settled in this jurisdiction that to constitute abandonment of position, there must be concurrence of the
intention to abandon and some overt acts from which it may be inferred that the employee concerned has no
more interest in working (Dagupan Bus Co., Inc. vs. NLRC, 191 SCRA 328), and that the filing of the complaint
which asked for reinstatement plus backwages (Record, p. 20) is inconsistent with respondents defense of
abandonment (Hua Bee Shirt Factory vs. NLRC, 188 SCRA 586).[10]

It is trite to say that the factual findings of quasi-judicial bodies are generally binding as long as they are supported
substantially by evidence in the record of the case. [11] This is especially so where, as here, the agency and its subordinate
who heard the case in the first instance are in full agreement as to the facts.[12]
As regards the labor arbiters award which was affirmed by respondent NLRC, there is no reason to apply the rule
that reinstatement may not be ordered if, as a result of the case between the parties, their relation is strained. [13] Even at
this late stage of this dispute, petitioner continues to reiterate its offer to reinstate private respondent. [14]
WHEREFORE, the petition is DISMISSED.

SO ORDERED.
Regalado, Acting C.J., (Chairman), Melo, Puno, and Martinez, JJ., concur.