People vs GoceFacts:

On January 12, 1988, an information for illegal recruitment committed by a syndicate and in large scale, punishable under Articles 38 and 39 of the Labor Code as amended by Section 1(b) of Presidential Decree No. 2018, was filed against spouses Dan and Loma Goce and herein accused-appellant Nelly Agustin in the Regional Trial Court of Manila, Branch 5.On January 21, 1987, a warrant of arrest was issued against the three accused but not one of them was arrested. Hence, on February 2, 1989, the trial court ordered the case archived but it issued a standing warrant of arrest against the accused. Thereafter, on learning of the whereabouts of the accused, at around midday of February 26, 1993, Nelly Agustin was apprehended by the Paraaque police. On November 19, 1993, the trial court rendered judgment finding herein appellant guilty as a principal in the crime of illegal recruitment in large scale, and sentencing her to serve the penalty of life imprisonment, as well as to pay a fine of P100,000.00.In her appeal, appellant Agustin raises the following arguments:

(1) her act of introducing complainants to the Goce couple does not fall within the meaning of illegal recruitment and placement under Article 13(b) in relation to Article 34of the Labor Code;

(2) there is no proof of conspiracy to commit illegal recruitment among appellant and the Goce spouses; and

(3) there is no proof that appellant offered or promised overseas employment to the complainants.

Appellant counsel agreed to stipulate that she was neither licensed nor authorized to recruit applicants for overseas employment. Appellant, however, denies that she was in any way guilty of illegal recruitment. It is appellant's defensive theory that all she did was to introduce complainants to the Goce spouses. Being a neighbor of said couple, and owing to the fact that her son's overseas job application was processed and facilitated by them, the complainants asked her to introduce them to said spouses. Allegedly out of the goodness of her heart, she complied with their request.

Issues:

Whether or not appellant Agustin actions in relation with the Goce couple constitute illegal recruitment.

Held:

Appellant is accused of violating Articles 38 and 39 of the Labor Code. Article 38 of the Labor Code, as amended by Presidential Decree No. 2018, provides that any recruitment activity, Including the prohibited practices enumerated in Article 34 of said Code, undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39thereof. The same article further provides that illegal recruitment shall be considered an offense involving economic sabotage if any of these qualifying circumstances exist, namely,(a) when illegal recruitment is committed by a syndicate,i.e., if it is carried out by a group of three or more persons conspiring and/or confederating with one another; or

(b) when illegal recruitment is committed in large scale, i.e., if it is committed against three or more persons individually or as a group. Recruitment and placement refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. On the other hand, referral is the act of passing along or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau. There is illegal recruitment when one gives the impression of having the ability to send a worker abroad." It is undisputed that appellant gave complainants the distinct impression that she had the power or ability to send people abroad for work such that the latter were convinced to give her the money she demanded in order to be so employed.

PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.ANITA BAUTISTA y LATOJA,accused-appellant.

PUNO,J.:

Four (4) separate Informations1were filed before the Regional Trial Court of Manila (Branch XLI) against accused ANITA BAUTISTA y LATOJA, charging her with the crimes ofIllegal Recruitment In Large Scale2and Estafa.3 Upon arraignment on January 29, 1992, accused pleaded NOT GUILTY.4The four (4) cases were tried jointly.

After trial, the courta quofound accused guilty as charged.5In the illegal recruitment case, she was meted the penalty of life imprisonment and ordered to pay P 100,000.00 as fine. In the estafa cases, she was sentenced from two (2) years, eight (8) months and twenty one (21) days ofprision correccionalas minimum, to six (6) years, five (5) months and eleven (11) days ofprision mayoras maximum for each count of estafa, and pay each complainant the amount of P40,000.00 as civil indemnity.

Accused, thru counsel, filed her Notice of Appeal, dated March 6, 1992, indicating her desire to elevate her case to this Court.6The records of the case were, however, transmitted by the trial court to the Court of Appeals. In its Decision7dated November 26, 1993, the appellate court affirmed appellant's conviction. However, it modified the penalty for the three (3) estafa cases. The dispositive portion of the decision of the appellate court states:

WHEREFORE, in Criminal Case No. 92-102377, the Court finds accused Anita BautistaGUILTY BEYOND REASONABLE DOUBTof the crime of illegal recruitment, described and penalized under Article 13 (b), Article 38 (a) and (b) and Article 39 (a) of the Labor Code, and imposes upon her the penalty of life imprisonment and fine of P100,000.00. . . .

Insofar as Criminal Case No. 92-102378, Criminal Case No. 92-102379 and Criminal Case No. 92-102380, the Court renders judgment, finding accused Anita BautistaGUILTY BEYOND REASONABLE DOUBTof the crime of estafa, described and penalized under Article 315 par. 2 (a) of the Revised Penal Code, and sentencing her in each criminal case to the indeterminate penalty of (sic) fromFOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as minimum, to NINE (9) YEARS ofprision mayor, as maximum, and to pay each complainants Remigio Fortes, Anastacio Amor and Dominador Costales, the amount of P40,000.00, without subsidiary imprisonment in case of insolvency, with costs. Accordingly, the penalty imposed upon accused by the lower court is MODIFIED.

IT IS SO ORDERED.

Pursuant to Section 13 of Rule 124, the appellate court elevated to us the records of the case for review. Notice was given to appellant for her to file additional Brief if she so desires. None was filed in her behalf.

The facts are as found by the appellate court:

Sometime in August 1991, accused Anita Bautista approached Romeo Paguio at the latter's restaurant at 565 Padre Faura St., Manila, and offered job openings abroad. At that time, Paguio had relatives who were interested to work abroad. Accused, who also operated a restaurant nearby at Padre Faura, informed Paguio that she knew somebody who could facilitate immediate employment in Taiwan for Paguio's relatives. Accused Anita Bautista introduced Rosa Abrero to Paguio. Abrero informed him that the applicants could leave for Taiwan within a period of one-month from the payment of placement fees. They informed Paguio that the placement fee was P40,000.00 for each person. Paguio contacted his relatives, complainants Remigio Fortes and Dominador Costales who were his brothers-in-law, and Anastacio Amor, a cousin, who lost no time raising the needed money and gave the same to Paguio. The three were to work as factory workers and were to be paid $850.00 monthly salary each. Paguio gave Rosa Abrero P20,000.00, which would be used in following up the papers of the complainants; later he gave accused P40,000.00 and P60,000.00 in separate amounts, totalling P100,000.00, as the remaining balance. Abrero and accused Bautista promised Paguio and complainants that the latter could leave for Taiwan before September 25, 1991. As September 25, 1991 approached, accused Bautista informed Paguio and complainants that there was a delay in the latter's departure because their tickets and visas had not yet been released. Accused re-scheduled the complainants' departure to October 10, 1991. Came October 10, 1991, and complainants were still not able to leave. Paguio then required accused Bautista to sign the "Acknowledgment Receipt," dated October 11, 1991, in which accused admitted having received the sum of P100,000.00 from Paguio, representing payment of plane tickets, visas and other travel documents (Exhibit A). Paguio asked accused to return complainants' money; accused, however, promised that complainants could leave for Taiwan before Christmas. From POEA, Paguio secured a certification, dated January 9, 1992 attesting that Annie Bautista and Rosa Abrero are not licensed or authorized to recruit workers for overseas employment (Exhibit B). Complainants Fortes, Amor and Costales, as well as Paguio, gave their written statements at the Office of the Assistant Chief Directorial Staff for Intelligence of the WPDC, complaining about their being victims of illegal recruitment by Rosa Abrero and Annie Bautista (Exhibits C, D, E and F).

The issue boils down to whether or not reasonable doubt exists to warrant the acquittal of appellant Anita Bautista.

We find none.

The Labor Code definesrecruitment and placementas referring to "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not:Providedthat any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement."It is settled that the essential elements of the crime ofillegal recruitment in large scaleare: (1) the accused engages in the recruitment and placement of workers, as defined under Article 13 (b) or in any prohibited activities under Article 34 of the Labor Code; (2) accused has not complied with the guidelines issued by the Secretary of Labor and Employment, particularly with respect to the securing of a license or an authority to recruit and deploy workers, either locally or overseas; and (3) accused commits the same against three (3) or more persons, individually or a group.

For her exculpation, appellant denied she recruited complainants for employment abroad. She claimed Romeo Paguio was the one who approached her and asked for someone who could help his relatives work abroad. She thus introduced Rosa Abrero, a regular customer at her restaurant, to Paguio. In turn, Paguio introduced Abrero to complainants in their subsequent meeting. Further, appellant testified she was present during the recruitment of complainants since their meeting with Abrero was held at her restaurant. Appellant likewise stressed she did not receive the amount of P100,000.00, as stated in the Acknowledgment Receipt, dated October 11, 1991, but merely acknowledged that said sum was received by Rosa Abrero from Romeo Paguio.

Appellant's defense does not persuade us.

Appellant's active participation in the recruitment process of complainants belies her claim of innocence. Complainants' recruitment was initiated by appellant during her initial meeting with Romeo Paguio. She gave the impression to Romeo Paguio and the complainants that her cohort, Rosa Abrero, could send workers for employment abroad. She introduced Rosa Abrero to Romeo Paguio. Both women assured the departure of complainants to Taiwan within one month from payment of the placement fee of P40,000.00 per person. They even claimed that complainants would work as factory workers for a monthly salary of $850.00 per person. Moreover, it was appellant who informed Romeo Paguio that complainants' scheduled trip to Taiwan would be on October 10, 1991, instead of the original departure date of September 25, 1991, due to some problems on their visas and travel documents.

Her close association with Rosa Abrero is further strengthened by the Acknowledgment Receipt, dated October 11, 1991, which was prepared by Romeo Paguio for the protection of complainants. The receipt reads:

ACKNOWLEDGMENT RECEIPT

P100,000.00 October 11, 1991

RECEIVED FROM: ROMEO PAGUIO, the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS, Philippine Currency, representing the payment (of) plane ticket, visa and other travel documents.

CONFORME:

By:(Sgd.) ROMEO PAGUIO (Sgd.) MRS. ANNIE BAUTISTA c/o Rosa Abrero

SIGNED IN THE PRESENCE OF:

(Sgd.) Anastacio Amor Remigio Fortes

Dominador Costales

Said receipt shows that appellant collected the P100,000.00 for and in behalf of Rosa Abrero, and bolsters Romeo Paguio's allegation that he gave P20,000.00 to Rosa Abrero, while the rest was received by appellant. Notably, in its Decision, dated February 14, 1992, the trial court observed:

The denial(s) made by the accused of any participation in the recruitment of the complainants do not persuade. The evidence at hand shows that she acknowledged in writing the receipt of P100,000.00 from witness Romeo Paguio who was all along representing the complainants in securing employment for them in Taiwan. Her denial of having actually received the money in the sum of P100,000.00, the receipt of which she voluntarily signed is not convincing. By her own admission, she is a restaurant operator. In other words, she is a business woman. As such, she ought to know the consequences in signing any receipt. That she signed Exh. "A" only goes to show that fact, as claimed by Romeo Paguio, that she actually received the same.

It is uncontroverted that appellant and Rosa Abrero arenotauthorized or licensed to engage in recruitment activities.10Despite the absence of such license or authority, appellant participated in the recruitment of complainants. Since there are at least three (3) victims in this case, appellant is correctly held criminally liable for illegal recruitment in large scale.

We shall now discuss appellant's culpability under the Revised Penal Code, specifically Article 315 thereof, inasmuch as her conviction for offenses under the Labor Code does not avert punishment for offenses punishable by other laws.

The elements ofestafaare as follows: (1) that the accused defrauded another (a) by abuse of confidence, or (b) by means of deceit; and (2) that damage or prejudice capable of pecuniary estimation is caused by the offended party or third party.

In the case at bench, it is crystal clear that complainants were deceived by appellant and Rosa Abrero into believing that there were, indeed, jobs waiting for them in Taiwan. The assurances given by these two (2) women made complainants part with whatever resources they have, in exchange for what they thought was a promising job abroad. Thus, they sold their carabaos, mortgaged or sold their parcels of land and even contracted loans to raise the much needed money, the P40,000.00 placement fee, required of them by accused and Rosa Abrero.

The penalty forestafadepends on the amount defrauded. Article 315 of the Revised Penal Code provides: "the penalty ofprision correccionalin its maximum period toprision mayorin its minimum period (or imprisonment ranging from 4 years, 2 months and 1 day to 8 years), if the amount of the fraud is over P12,000.00 but does notexceedP22,000.00 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in itsmaximum period(6 years, 8 months and 21 days to 8 years),adding one year for each additional P10,000.00 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of other provisions of this Code, the penalty shall be termedprision mayororreclusion temporal, as the case may be.

The amount defrauded in such estafa case (Criminal Case Nos. 92-102378, 92-102379, 92-102380) is P 40,000.00. As prescribed in Article 315,supra, the penalty should be imposed in themaximum period(6 years, 8 months and 21 days to 8 years)plus one (1) year, there being only one (1) P10,000.00 in excess of P22,000.00. Applying the Indeterminate Sentence Law, the maximum penalty should be taken from the aforesaid period, while the minimum term of the indeterminate penalty shall be within the range of the penalty next lower in degree, that is prision correccionalin its minimum and medium periods which has a duration of 6 months, 1 day to 4 year and 2 months.

Considering the foregoing, the appellant court correctly imposed the indeterminate penalty of four (4) years and two (2) months ofprision correccional, as minimum, to nine (9) years ofprision mayor, as maximum.

WHEREFORE, premises considered, the decision of the Court of Appeals, finding appellant ANITA BAUTISTA guilty beyond reasonable doubt of the crimes ofIllegal Recruitment in Large Scale(Criminal Case Nos. 92-102377) andEstafa(Criminal Case Nos. 92-102378, 92-102379, 92-102380) is AFFIRMED. No Costs.ALMODIEL v NLRC

GR No. 100641, June 14, 1993

FACTS

Petitioner is a CPA hired as Cost Accounting Manager of Respondent Raytheon Philippines, Inc. As such, his major duties were (1) plan, coordinate, and carry out year-end physical inventory; (2) formulate and issue out hard copies of standard product costing and other cost/pricing analysis if needed and required; and set up the written cost accounting system for the whole company. However, when the standard cost accounting system for Raytheon plans worldwide was adopted and installed in the Philippine operations, the services of the petitioner was reduced to only the submission of period reports that would use computerized forms prescribed and designed by the international head office of the company in California, USA.

On January 27, 1989, petitioner was told of the abolition of his position on the ground of redundance. He was constrained to file the complaint for illegal dismissal after his request to have him transferred to another department was denied. He also alleged that the functions of his position were absorbed by the Payroll/MIS/Finance Department which is headed by a resident alien without working permit from the DOLE.

The NLRC ruled for Raytheon and directed the latter to pay the petitioner P100,000.00 as separation pay. Hence, this petition.

ISSUEWON the termination of the petitioner on the ground of redundancy was tainted with malice, bad faith and irregularity

HELDAn employer has no legal obligation to keep more employees that are necessary for the operation of the business. Considering further that petitioner held a managerial position, Raytheon had a broad latitude of discretion in abolishing the position. The reason obviously is that officers in such key positions perform not only functions which by nature require the employers full trust and confidence but also functions that spell the success or failure of an enterprise.

Likewise destitute of merit is petitioners imputation of unlawful discrimination when Raytheon caused corollary functions appertaining to cost accounting to be absorbed by a resident alien without working permit. Article 40 of the Labor Code which requires employment permit refers to non-resident aliens.

General Milling Corporation vs. Torres

G.R No. 9366, April 22, 1991

FACTS:

Earl Timothy Cone is a US citizen, who was hired by General Milling as a sports consultant and assistant coach.He possessed an alien employment permit which was changed to pre-arranged employee by the Board of Special Inquiry of the Commission on Immigration and Deportation. GMC requested that Cones employment permit be changed to a full-fledged coach, which was contested by The Basketball Coaches Association of the Philippines. Alleging that GMC failed to show that there is no competent person in the Philippines to do the coaching job. Secretary of Labor cancelled Cones employment permit.

ISSUE:

Whether or not the Secretary of Labor act with grave abuse of discretion in revoking Cones Alien Employment Permit?

HELD:

The Secretary of Labor did not act with grave abuse of discretion in revoking Cones Alien Employment Permit. GMCs claim that hiring of a foreign coach is an employers prerogative has no legal basis. Under Section 40 of the Labor Code, an employer seeking employment of an alien must first obtain an employment permit from the Department of labor. GMCs right to choose whom to employ is limited by the statutory requirement of an employment permit.

The Labor Code empowers the Labor Secretary to determine as to the availability of the services of a person in the Philippines who is competent, able and willing at the time of the application to perform the services for which an alien is desired.

NITTO ENTERPRISES,petitioner,-versus-NATIONAL LABOR RELATIONS COMMISSION and ROBERTO CAPILI,respondents.

Facts:

Petitioner Nitto Enterprises, a company engaged in the sale of glass and aluminum products, hired Roberto Capili sometime in May 1990 as an apprentice machinist, molder and core maker as evidenced by an apprenticeship agreement2for a period of six (6) months from May 28, 1990 to November 28, 1990 with a daily wage rate of P66.75 which was 75% of the applicable minimum wage.

On August 2, 1990, Roberto Capili who was handling a piece of glass which he was working on, accidentally hit and injured the leg of an office secretary who was treated at a nearby hospital. Further, Capili entered a workshop within the office premises which was not his work station. There, he operated one of the power press machines without authority and in the process injured his left thumb. The following day he was asked to resign. Three days after, , private respondent formally filed before the NLRC Arbitration Branch, National Capital Region a complaint for illegal dismissal and payment of other monetary benefits. The Labor Arbiter rendered his decision finding the termination of private respondent as valid and dismissing the money claim for lack of merit. On appeal, NLRC issued an order reversing the decision of the Labor Arbiter. The NLRC declared that Capili was a regular employee of Nitto Enterprises and not an apprentice. Consequently, Labor Arbiter issued a Writ of Execution ordering for the reinstatement of Capili and to collect his back wages. Petitioner, Nitto Enterprises filed a case to the Supreme Court.

Issue:

Whether or not NLRC correctly ruled that Capili is a regular employee and not an apprentice of Nitto Enterprises.

Whether or not Capili was illegally dismissed.

Held:1st issue: The apprenticeship agreement between petitioner and private respondent was executed on May 28, 1990 allegedly employing the latter as an apprentice in the trade of "care maker/molder. However, the apprenticeship Agreement was filed only on June 7, 1990. Notwithstanding the absence of approval by the Department of Labor and Employment, the apprenticeship agreement was enforced the day it was signed.

The act of filing the proposed apprenticeship program with the Department of Labor and Employment is a preliminary step towards its final approval and does not instantaneously give rise to an employer-apprentice relationship.

Nitto Enterprises did not comply with the requirements of the law. It is mandated that apprenticeship agreements entered into by the employer and apprentice shall be entered only in accordance with the apprenticeship program duly approved by the Minister of Labor and Employment. Thus, the apprenticeship agreement has no force and effect; and Capili is considered to be a regular employee of the company.

2nd issue: Before a valid dismissal exist the twin requirements of due process- substantive and procedural must be complied with. The employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires. In the case at bar, the petitioner "strong-armed" the respondent into signing the resignation letter and quitclaim without explaining to him the contents thereof notwithstanding the absence of notices for the respondent regarding the reasons of his dismissal.

NAWASAvs .NWSA Consolidated unions it was held that NAWASA is not anagencyperforminggovernmentalfunctionsratheritperformsproprietaryfunctions.Thefunctionofprovidingwater supply and sewerage service are regarded as mere optionalfunctionsofthegovernmenteventhoughthe service rendered caters to the community as a whole and the goal isfor the general interest of society.

NATIONAL WATERWORKS & SEWERAGE AUTHORITY V NWSA CONSOLIDATED UNIONS

11 SCRA 766

BAUTISTA ANGELO; August 31, 1964

NATURE

Petition for review of a decision of the Court of Industrial Relations

FACTS

- Petitioner National Waterworks & Sewerage Authority is a government-owned and controlled corporation created under Republic Act No. 1383, while respondent NWSA Consolidated Unions are various labor organizations composed of laborers and employees of the NAWASA. The other respondents are intervenors Centeno, et al., hereinafter referred to as intervenors.

- Petitioner and respondent unions, conformably to a suggestion of the Court of Industrial Relations on the controversy between them, submitted a joint stipulation of facts on the issues concerning the 40-Hour Week Law, distress pay, minimum wage, filling of vacancies, night compensation, and salary adjustments, reserving the right to present evidence on matters not covered herein. Respondent intervenors filed a petition in intervention on the issue for additional compensation for nightwork. Later, however, they amended their petition by including a new demand for overtime pay in favor of Centeno and other employees receiving P4200 per annum or more.

- Petitioner filed a motion to dismiss the claim for overtime pay alleging that respondent Court of Industrial Relations was without jurisdiction to pass upon the same because, as mere intervenors, the latter cannot raise new issues not litigated in the principal case, the same not being the lis mota therein involved. To this motion, the intervenors filed an opposition. Thereafter, respondent court issued an order allowing the issue to be litigated. Petitionerss motion to reconsider having been denied, it filed its answer to the petition for intervention.

- Finally, respondent rendered its decision stating among others that (1) the NAWASA is an agency not performing governmental functions and, therefore, is liable to pay additional compensation for work on Sundays and legal holidays conformably to Commonwealth Act No. 444, known as the Eight-Hour Labor Law, even if said days should be within the staggered five work-days authorized by the President and (2) the intervenors do not fall within the category of managerial employees as contemplated in Republic Act 2377 and so are not exempt from the coverage of the Eight-Hour Labor Law; even those intervenors attached to the General Auditing Office and the Bureau of Public Works come within the purview of Commonwealth Act No. 444.

- Its motion for reconsideration having been denied, NAWASA filed the present petition for review.

ISSUE

WON the intervenors are managerial employees within the meaning of Republic Act 2377 and, therefore, not entitled to the benefits of Commonwealth Act No. 444, as amended

HELD

NO

- One of the distinguishing characteristics by which a managerial employee may be known as expressed in the explanatory note of Republic Act 2377 is that he is not subject to the rigid observance of regular office hours. The true worth of his service does not depend so much on the time he spends in office but more on the results he accomplishes. In fact, he is free to go out of office anytime.

- Section 2 of Republic Act 2377 provides:

Sec. 2. This Act shall apply to all persons employed in any industry or occupation whether public or private, with the exception of farm laborers, laborers who prefer to be paid on piece work basis, managerial employees, outside sales personnel, domestic servants, persons in the personal service of another and members of the family of the employer working for him.

The term `managerial employee in this Act shall mean either (a) any person whose primary duty consists of the management of the establishment in which he is employed or of a customarily recognized department or subdivision thereof, or (b) any officer or member of the managerial staff.

- The philosophy behind the exemption of managerial employees from the 8-Hour Labor Law is that such workers are not usually employed for every hour of work but their compensation is determined considering their special training, experience, or knowledge which requires the exercise of discretion and independent judgment, or perform work related to management policies or general work related to management policies or general business operations along specialized or technical lines. For these workers it is not feasible to provide a fixed hourly rate of pay or maximum hours of labor.

- The intervenors herein are holding positions of responsibility. One of them is the Secretary of the Board of Directors. Another is the private secretary of the general manager. Another is a public relations officer, and many other chiefs of divisions or sections and others are supervisors and overseers. Respondent court, however, after examining carefully their respective functions, duties, and responsibilities found that their primary duties do not bear any direct relation with the management of the NAWASA, nor do they participate in the formulation of its policies nor in the hiring and firing of its employees. The chiefs of divisions and sections are given ready policies to execute and standard policies to observe for their execution. Hence, it concludes, they have little freedom of action, as their main function is merely to carry out the companys orders, plans, and policies.

- To the foregoing comment, the Court agrees. As a matter of fact, they are required to observe working hours and record their time work and are not free to come and go to their offices, nor move about at their own discretion. They do not, therefore, come within the category of managerial employees within the meaning of the law.

Disposition Decision affirmed with modification.

SALAZAR vs. NLRC (1996)

FACTS:

Petitioner Salazar, was employed as construction/project engineer by HL Carlos Construction for the construction of the Monte de Piedad building in Cubao, Quezon City. Salazar received a memorandum issued by the companys project manager, informing him of the termination of his services. Salazar filed a complaint for illegal dismissal, and for non-payment of benefits LA: declared that Salazar is not entitled to separation pay. He was hired as a PROJECT EMPLOYEE and his services were terminated due to the completion of the project. NLRC affirmedIssue: Whether Salazar is a project EE and, therefore, not entitled to separation pay

HELD: YES

GR: Project EEs are entitled to separation pay

EXPN: Project EEs are not entitled to separation pay if they are terminated as a result of the completion of the project, regardless of the projects in which they have been employed.Salazars dismissal was due to the completion of the construction of the building.

SALAZAR V NLRCKAPUNAN; April 17, 1996

NATURE

Petition for certiorari to annul the decision of the National Labor Relations CommissionFACTS

- On 17 April 1990, private respondent, at a monthly salary of P4,500.00, employed petitioner as construction/project engineer for the construction of the Monte de Piedad building in Cubao, Quezon City.

- Allegedly, by virtue of an oral contract, petitioner would also receive a share in the profits after completion of the project and that petitioners services in excess of eight (8) hours on regular days and services rendered on weekends and legal holidays shall be compensable overtime at the rate of P27.85 per hour.

- On 16 April 1991, petitioner received a memorandum issued by private respondents project manager, Engr. Nestor A. Delantar informing him of the termination of his services effective on 30 April 1991.

- Petitioner filed a complaint against private respondent for illegal dismissal, unfair labor practice, illegal deduction, non-payment of wages, overtime rendered, service incentive leave pay, commission, allowances, profit-sharing and separation pay with the NLRC.

- Labor Arbiter Raul T. Aquino dismissed the complaint for lack of merit.

- NLRC affirmed, and also denied MFR

ISSUE

WON petitioner is entitled to overtime pay, premium pay for services rendered on rest days and holidays and service incentive leave pay, pursuant to Articles 87, 93, 94 and 95 of the Labor Code

HELD

NO

- The NLRC concurred with the Labor Arbiters ruling that petitioner was a managerial employee and, therefore, exempt from payment of overtime pay, premium pay for holidays and rest days and service incentive leave pay under the law.

- Petitioner claims that since he performs his duties in the project site or away from the principal place of business of his employer, he falls under the category of field personnel.

- However, petitioner accentuates that his case constitutes the exception to the exception because his actual working hours can be determined as evidenced by the disbursement vouchers containing payments of petitioners salaries and overtime services. Strangely, petitioner is of the view that field personnel may include managerial employees.

- In his original complaint, petitioner stated that the nature of his work is supervisory-engineering. Similarly, in his own petition and in other pleadings, petitioner confirmed that his job was to supervise the laborers in the construction project.

- Although petitioner cannot strictly be classified as a managerial employee under Art. 82 of the Labor Code, and Sec. 2(b), Rule 1, Book III of the Omnibus Rules Implementing the Labor Code, nonetheless he is still not entitled to payment of the aforestated benefits because he falls squarely under another exempt category - officers or members of a managerial staff as defined under Sec. 2(c) of the abovementioned implementing rules:

- A case in point is National Sugar Refineries Corporation v. NLRC. On the issue of whether supervisory employees, as defined in Article 212 (m), Book V of the Labor Code, should be considered as officers or members of the managerial staff under Article 82, Book III of the same Code and hence not entitled to overtime, rest day and holiday pay, this Court ruled: A cursory perusal of the Job Value Contribution Statements of the union members will readily show that these supervisory employees are under the direct supervision of their respective department superintendents and that generally they assist the latter in planning, organizing, staffing, directing, controlling, communicating and in making decisions in attaining the companys set goals and objectives. These supervisory employees are likewise responsible for the effective and efficient operation of their respective departments. From the foregoing, it is apparent that the members of respondent union discharge duties and responsibilities which ineluctably qualify them as officers or members of the managerial staff, as defined in Section 2, Rule 1, Book III of the Rules to Implement the Labor Code

- The same applies to petitioner herein considering in the main his supervisory duties as private-respondents project engineer, duties which, it is significant to note, petitioner does not dispute.

- Petitioner, likewise, claims that the NLRC failed to give due weight and consideration to the fact that private respondent compensated him for his overtime services as indicated in the various disbursement vouchers he submitted as evidence.- Petitioners contention is unmeritorious. That petitioner was paid overtime benefits does not automatically and necessarily denote that petitioner is entitled to such benefits. Art. 82 of the Labor Code specifically delineates who are entitled to the overtime premiums and service incentive leave pay provided under Art. 87, 93, 94 and 95 of the Labor Code and the exemptions thereto.

- As previously determined, petitioner falls under the exemptions and therefore has no legal claim to the said benefits. It is well and good that petitioner was compensated for his overtime services. However, this does not translate into a right on the part of petitioner to demand additional payment when, under the law, petitioner is clearly exempted therefrom.

UNION CARBIDE LABOR UNION (NLU),petitioner,vs.UNION CARBIDE PHILIPPINES, INC. AND THE HON. SECRETARY OF LABOR,respondents.

MELO,J.:This refers to a petition for review of the decision of the then Secretary of Labor Blas Ople handed down on February 7, 1975 which set aside the decision of the Arbitrator ordering reinstatement with backwages, and instead adjudged the payment of separation pay; and the resolution dated July 24, 1975 denying petitioner's motion for reconsideration for lack of merit.

The undisputed facts as found by the Secretary of Labor are as follows:

. . . Complainants Agapito Duro, Alfredo Torio, and Rustico Javillonar, were dismissed from their employment after an application for clearance to terminate them was approved by the Secretary of Labor on December 19, 1972. Respondent's application for clearance was premised on "willful violation of Company regulations, gross insubordination and refusal to submit to a Company investigation . . . ."

Prior events leading to the dismissal of complainants are recited in the Arbitrator's decision, which we quote:

It appears that the Company is operating on three (3) shifts namely: morning, afternoon and night shifts. The workers in the third shift normally work from Monday to Saturday, the last working day being Friday or forty (40) hours a week or from Monday to Friday.

Sometime in July 1972, there seems to be a change in the working schedule from Monday to Friday as contained in the collective bargaining agreement aforecited to Sunday thru Thursday. The change became effective July 5, 1972. The third shift employees were required to start the new work schedule from Sunday thru Thursday.

On November 6, 1972, the night shift employees filed a demand to maintain the old working schedule from Monday thru Friday. (Letter of November 6, 1972 addressed to the Committee on Labor Relation, UCLU). The demand was referred to the Labor Management Relation Committee and discussed from November 15, up to November 24, 1972. In the discussions had, it was arrived at that all night shift operating personnel were allowed to start their work Monday and on Saturday. This excepted the employees in the maintenance and preparation crews whose work schedule is presumed to be maintained from Sunday to Thursday. The work schedule between management representatives and the alleged officers of the Union (Varias group) was approved and disseminated to take effect November 26, 1972. (Exh. "2" Respondent).

In manifestation of their dissention to the new work schedule, the three respondents Duro, Torio, and Javillonar did not report for work on November 26, 1972 which was a Sunday since it was not a working day according to the provisions of the Collecrtive Bargaining Agreement. (Exh. "A" Complainant). Their absence caused their suspension for fourteen (14) days. (pp. 29-30,Rollo).

On May 4, 1973, the Arbitrator rendered a decision ordering the reinstatement with backwages of the complainants. On June 8, 1973, the National Labor Relations Commission dismissed respondent company's appeal for having been filed out of time. A motion for reconsideration which was treated as an appeal was then filed by respondent company before the Secretary of Labor, resulting in the modification of the Arbitrator's decision by awarding complainants separation pay. A motion for reconsideration subsequently filed by the petitioner was denied for lack of merit.

Hence, this petition.

The main issue in this case is whether or not the complainants could be validly dismissed from their employment on the ground of insubordination for refusing to comply with the new work schedule.

Petitioner alleges that the change in the company's working schedule violated the existing Collective Bargaining Agreement of the parties. Hence, complainants cannot be dismissed since their refusal to comply with the re-scheduled working hours was based on a provision of the Collective Bargaining Agreement. Petitioner further contends that the dismissal of the complainants violated Section 9, Article II of the 1973 Constitution which provides "the right of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work."

The petition has no merit.

Although Article XIX of the CBA provides for the duration of the agreement, which We quote:

This agreement shall become effective on September 1, 1971 and shall remain in full force and effect without change until August 31, 1974. Unless the parties hereto agree otherwise, negotiation for renewal, or renewal and modification, or a new agreement may not be initiated before July 1, 1974.

this does not necessarily mean that the company can no longer change its working schedule, for Section 2, Article II of the same CBA expressly provides that:

Sec. 2. In the exercise of its functions of management, the COMPANY shall have the sole and exclusive right and power, among other things, to direct the operations and the working force of its business in all respects; to be the sole judge in determining the capacity or fitness of an employee for the position or job to which he has been assigned; to schedule the hours of work, shifts and work schedules; to require work to be done in excess of eight hours or Sundays or holidays as the exigencies of the service may require; to plan, schedule, direct, curtail and control factory operations and schedules of production; to introduce and install new or improved methods or facilities; to designate the work and the employees to perform it; to select and hire new employees; to train new employees and improve the skill and ability of employees from one job to another or form one shift to another; to classify or reclassify employees; and to make such changes in the duties of its employees as the COMPANY may see fit or convenient for the proper conduct of its business.

Verily and wisely, management retained the prerogative, whenever exigencies of the service so require, to change the working hours of its employees. And as long as such prerogative is 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, this Court will uphold such exercise (San Miguel Brewery Sales Force Union (PTGWO) vs. Ople, 170 SCRA 25 [1989]).

Thus, in the case ofAbbott Laboratories (Phil.), Inc.vs.NLRC(154 SCRA 713 [1987]), We ruled:

. . . Even as the law is solicitous of the welfare of employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied. (p.717)

Further, the incident complained of took place sometime in 1972, so there is no violation of the 1973 Constitution to speak of because the guarantee of security of tenure embodied under Section 9, Article II may not be given a retroactive effect. It is the basic norm that provisions of the fundamental law should be given prospective application only, unless legislative intent for its retroactive application is so provided.

As pointed out by Justice Isagani Cruz, to wit:

Finally, it should be observed that the provisions of the Constitution should be given only a prospective application unless the contrary is clearly intended. Were the rule otherwise, rights already acquired or vested might be unduly disturbed or withdrawn even in the absence of an unmistakable intention to place them within the scope of the Constitution.

(p.10, Constitutional Law,Isagani Cruz, 1991 Edition)

We agree with the findings arrived at by both Arbitrator and the Secretary of Labor that there is no unfair labor practice in this case. Neither was there gross and habitual neglect of complainants' duties. Nor did the act of complainants in refusing to follow the new working hours amount to serious misconduct or willful disobedience to the orders of respondent company.

Although no serious objections may be offered to the Arbitrator's conclusion to order reinstatement with backwages of the complainants, We now refrain from doing so considering that reinstatement is no longer feasible due to the fact that the controversy started more than 20 years ago aside from the obviously strained relations between the parties.

WHEREFORE, the decision appealed from is hereby AFFIRMED. SO ORDERED.

Sime Darby Pilipinas vs. NLRC [G.R. No. 119205, April 15, 1998]Facts:Petitioner is engaged in the manufacture ofautomotive tires, tubes and otherrubber products. Private respondent is an association of monthly salariedemployeesof petitioner at its Marikina factory. Beforehand, all company factory workers in Marikina including members of private respondent union worked from 7:45am to 3:45pm with a 30-minute paid on call lunch break.

Petitioner issued a memorandum to all factory- basedemployees advising all its monthly salariedemployeesin its Marikina Tire Plant, except those inthe Warehouseand Quality Assurance Department working on shifts.

Private respondent felt affected adversely by the change in the work scheduleand discontinuance of the 30-minute paid on call lunch break, hence thefillingofcomplaintfor unfair labor practice, discrimination and evasion of liability. The Labor Article dismissed the complainant on the ground that the change in the workschedule and the elimination of the 30-minute paid lunch break of factory workers constituted a valid exercise of management prerogative and did not decrease thebenefitsgranted to factory workers as the working time did not go beyond 8 hours. Hence, this petition.

Issue:Whether or not there was a diminution ofbenefitswhen the 30-minute paid lunch break was eliminated

Held:The right to fix the work,schedulesof theemployeesrests principally on their employer. The petitioner cities as reason for the adjustment the efficient conduct of its business operations and its improved production. Since theemployeesare no longer required during this one-hour lunch break, there is no more need for them to be compensated for this period. The new workschedulefully complies with the daily work period of eight (8) hours without violating the Labor Code. Also, the newscheduleapplies to all employeesin the factory similarly situated whether they are union members or not; Even as the law is solicitous of the welfare of the employees; it must also protect the right of an employer to exercise what are clearly management prerogatives; Management retains the prerogative, whenever exigencies of the service so require, to change the working hours of itsemployeesPetition is granted. The dismissedcomplaintagainst petitioner for unfair labor practice is affirmed.

PAN-AM vs PAN-AM Employees

1 SCRA527

FACTS:Petitioner herein claims that the one hour meal period should not be considered as overtime work, because the evidence showed that complainants could rest completely, and were not in any manner under the control of the company during that period. The court below found, on the contrary, that during the so-called meal period, the mechanics were required to stand by for emergency work; that if they happened not to be available when called, they were reprimanded by the lead man; that as in fact it happened on many occasions, the mechanics had been called from their meals or told to hurry up eating to perform work during this period.

ISSUE:Whether or not the 1 hour meal period of the mechanics is considered working time.

HELD:Yes. The Industrial Courts order for permanent adoption of a straight 8-hour shift including the meal period was but a consequence of its finding that the meal hour was not one of complete rest but was actually a work hour, since for its duration, the laborers had to be on ready call.SHELL OIL CO. OF THE PHILS LTD V NATIONAL LABOR UNION

81 Phil 315

BRIONES; July 26, 1948

NATURE

Petition for review on certiorari

FACTS

- Acting on a petition of the company "National Work Union," the Court of Industrial Relations has dictated a decision in which, among others things, the petroleum firm is obliged to pay its laborers for work at night a compensation additional of 50% on its regular salaries. It seems that the company has need of the nocturnal service of a determined number of laborers, since some of the necessary tasks are done at night for the supply of gasoline and lubricants, and for other needs. The company alleges and argues that theres not any disposition that authorizes the Court of Industrial Relations to order the payment of additional compensation to laborers that work at night, but, on the contrary, the law of the Commonwealth Not. 444 exempts all owners of similar obligation every time that in said law the cases are provided in which the payment of "overtime" is compulsory, and among such cases of overtime does not figure the work at night. In turn, the union maintains that the law Not. 444 of the Commonwealth that is invoked does not have any application al present case, therefore the same one is of reach inevitably limited, being referred And exclusively to the day maxima of work contidiano permitted in the industrial establishments the day of 8 hours. Our conclusion is that the union has the reason on its part. - Commonwealth No. 444 states:

SECTION 1. The legal working day for any person employed by another shall be of not more than eight hours daily. When the work is not continuous, the time during which the laborer is not working and can leave his working place and can rest completely shall not be counted.SEC. 3. Work may be performed beyond eight hours a day in case of actual or impending emergencies caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity in order to prevent loss to life and property or imminent danger to public safety; or in case urgent work to be performed on the machines, equipment, or installations in order to avoid a serious loss which the employer would otherwise suffer, or some other just cause of a similar nature; but in all such cases the laborers and employees shall be entitled to receive compensation for the overtime work performed at the same rate as their regular wages or salary, plus at least twenty-five per centum additional.In case of national emergency the government is empowered to establish rules and regulations for the operation of the plants and factories and to determine the wages to be paid the laborers.SEC. 4. No person, firm, or corporation, business establishment or place or center of labor shall compel an employee or laborer to work during Sundays and legal holidays, unless he is paid an additional sum of at least twenty-five per centum of his regular remuneration: Provided however, That this prohibition shall not apply to public utilities performing some public service such as supplying gas, electricity, power, water, or providing means of transportation or communication.- The lawyers of the company argues that in these articules the cases are specified in which payment of extra of additional compensation is authorized: (A) in case of "overtime" or work over and above the hours regulated by reasons dangers of urgency because of some disaster or accident, or to avoid lost or to repair them; (b) in case of work by Sundays and festivals; (c) in case of emergency, and nothing it is necessary refer at work at night; then the order that treats is illegal, therefore not this authorized by the law. "In the absence of legislation authorizing the payment of extra compensation for work at night, the Court of Industrial Relations has not the power or authority to order the petitioner company to pay extra compensation for by its laborers at night. Expressio unius est exclusio alterius. Where, in the statute expressly specifies the cases where payment of extra compensation may be demanded, extra compensation may be allowed in those cases only, and in not others. The provisions of the Commonwealth Act Not. 444 cannot be enlarged by implication or otherwise. Expressum facit cessare tacitum. The argumentation is erronea. The Law Not. 444 is not applicable al present case, being evident that the same one has an object I specify, to know: (A) to set in 8 hours the day maxima of work; (b) senalar certain exceptional cases in which the work out of said day can be authorized; (c) to provide a bonus, that should not be less than 25% of the salary to regulate, for the "overtime" or I work over and above the 8 hours.

ISSUEWON the petroleum company is obligated to give additional pay for its night workers

HELD

YESRatio The night work that the company Shell requires of its laborers is not an "overtime", in the sense in which this word is employed in Commonwealth Act 444, but is a complete day of work, of 8 hours. In other words, the work at night is not only unexceso, prolongacion or "overtime" of the regular daywork , but is another type of work, absolutely independent of the day. Therefore there are two shifts: the shift of laborers that work during the day; and the shift of the ones that work at night. It is not strange that the legislator have not included this type of work among the cases of "overtime" in the above-mentioned law Not. 444. Reasoning

- And with respect with the apreciation that the work at night is but heavy and burdensome than that of day and, therefore, he deserves greater remuneration, there is no reason to revoke it or to alter it. There is not possible argument against the universal fact that the ordinary, normal, and regular work is that of day and that the work at night is very exceptional and justified alone certainly imperatively inevitable motives. - Reasons of hygiene, of medicine, of morale, of culture, of sociologia, they establish with one accord that the work at night has many objections, and when there is not but remedy that to cause is alone just that I am paid better than usually to compensate hasa certain point al working of such objections. It must be remembered that it is distinctly unphysiological to turn the night into day and deprive the body of the beneficial effects of sunshine. The human organism revolts against this procedure. Added to artificial lighting are reversed and unnatural times of eating, resting, and sleeping. Much of the inferiority of nightwork can doubtless be traced to the failure of the workers to secure proper rest and sleep, by day. Because of inability or the lack of opportunity to sleep, nightworkers often spend their days in performing domestic duties, joining the family in the midday meal, 'tinkering about the place', watching the baseball game, attending the theater or taking a ride in the car. It is not strange that nightworkers tend to be less efficient than dayworkers and lose more time. . . (The Management of Labor Relations, by Watkins & Dodd, page 524.).> Nightwork. Nightwork has gained a measure of prominence in the modern industrial system in connection with continuous industries, that is, industries in which the nature of the processes makes it necessary to keep machinery and equipment in constant operation. Even in continuous industries the tendency is definitely in the direction of FOUR shifts of 6 hours each, with provision for an automatic change of shift for all workers at stated intervals. Some discussion has taken place with regard to the lengths of the period any workers should be allowed to remain on the night shift. A weekly change of shifts is common, specially where three or four shifts are in operation; in other cases the change is made fortnightly or monthly; in still other instances, no alternation is provided for, the workers remaining on day or nightwork permanently, except where temporary changes are made for individual convenience.There is sharp difference of opinion concerning the relative merits of these systems. Advocates of the weekly change of shifts contend that the strain of nightwork and the difficulty of getting adequate sleep during the day make it unwise for workers to remain on the"graveyard" shift for more than a week at a time. Opponents urge that repeated changes make it more difficult to settle down to either kind of shift and that after the first week nightwork becomes less trying while the ability to sleep by day increases. Workers themselves react in various ways to the different systems. This much, however, is certain: Few persons react favorably to nightwork, whether the shift be continuous or alternating. Outside of continuous industries, nightwork can scarcely be justified, and, even in these, it presents serious disadvantages which must be recognized in planing for industrial efficiency, stabilization of the working force, the promotion of industrial good-will, and the conservation of the health and vitality of the workers.> Nightwork cannot be regarded as desirable, either from the point of view of the employer or of the wage earner. It is uneconomical unless overhead costs are unusually heavy. Frequently the scale of wages is higher as an inducement to employees to accept employment on the night shift, and the rate of production is generally lower.> The lack of sunlight tends to produce anemia and tuberculosis and to predispose to other ills. Nightwork brings increased liability to eyestrain and accident. Serious moral dangers also are likely to result from the necessity of traveling the streets alone at night, and from the interference with normal home life. From an economic point of view, moreover, the investigations showed that nightwork was unprofitable, being inferior to day work both in quality and in quantity. Wherever it had been abolished, in the long run the efficiency both of the management and of the workers was raised. Furthermore, it was found that nightwork laws are a valuable aid in enforcing acts fixing the maximum period of employment. (Principles of Labor Legislation, by Commons and Andrews, 4th Revised Edition, p. 142.)Special regulation of nightwork for adult men is a comparatively recent development. Some European countries have adopted laws placing special limitations on hours of nightwork for men, and others prohibit such work except in continuous processes. (Principles of Labor legislation, 4th Revised Edition by Common & Andrews, p. 147.)> Nightwork has almost invariably been looked upon with disfavor by students of the problem because of the excessive strain involved, especially for women and young persons, the large amount of lost time consequent upon exhaustion of the workers, the additional strain and responsibility upon the executive staff, the tendency of excessively fatigued workers to "keep going" on artificial stimulants, the general curtailment of time for rest, leisure, and cultural improvement, and the fact that night workers, although precluded to an extent from the activities of day life, do attempt to enter into these activities, with resultant impairment of physical well-being. It is not contended, of course, that nightwork could be abolished in the continuous-process industries, but it is possible to put such industries upon a three- or four-shifts basis, and to prohibit nightwork for women and children. (Labor's Progress and Problems, Vol. I, p. 464, by Professors Millis and Montgomery.)> Nightwork. Civilized peoples are beginning to recognize the fact that except in cases of necessity or in periods of great emergency, nightwork is socially undesirable. Under our modern industrial system, however, nightwork has greatly aided the production of commodities, and has offered a significant method of cutting down the ever-increasing overhead costs of industry. This result has led employers to believe that such work is necessary and profitable. Here again one meets a conflict of economic and social interests. Under these circumstances it is necessary to discover whether nightwork has deleterious effects upon the health of laborers and tends to reduce the ultimate supply of efficient labor. If it can proved that nightwork affects adversely both the quality and quantity of productive labor, its discontinuance will undoubtedly be sanctioned by employers. From a social point of view, even a relatively high degree of efficiency in night operations must be forfeited if it is purchased with rapid exhaustion of the health and energy of the workers. From an economic point of view, nightwork may be necessary if the employer is to meet the demand for his product, or if he is to maintain his market in the face of increasing competition or mounting variable production costs.> Industrial experience has shown that the possession of extra-ordinary physical strength and self-control facilitates the reversal of the ordinary routine of day work and night rest, with the little or no unfavorable effect on health and efficiency. Unusual vitality and self-control, however, are not common possessions. It has been found that the most serious obstacle to a reversal of the routine is the lack of self-discipline. Many night workers enter into the numerous activities of day life that preclude sleep, and continue to attempt to do their work at night. Evidence gathered by the British Health of Munition Workers' Committee places permanent night workers, whether judged on the basis of output or loss of time, in a very unfavorable positions as compared with day workers.> Systems of nightwork differ. There is the continuous system, in which employees labor by night and do not attend the establishment at all by day, and the discontinuous system, in which the workers change to the day turn at regular intervals, usually every other week. There are, of course, minor variations in these systems, depending upon the nature of the industry and the wishes of management. Such bodies as the British Health Munition Workers' Committee have given us valuable conclusions concerning the effect of nightwork. Continuous nightwork is definitely less productive than the discontinuous system. The output of the continuous day shift does not make up for this loss in production.> There is, moreover, a marked difference between the rates of output of night and day shifts on the discontinuous plan. In each case investigated the inferiority of night labor was definitely established. This inferiority is evidently the result of the night worker's failure to secure proper amounts of sleep and rest during the day. The system of continuous shifts, especially for women, is regarded by all investigators as undesirable. Women on continuous nightwork are likely to perform domestic duties, and this added strain undoubtedly accounts for the poorer results of their industrial activities. The tendency to devote to amusement and other things the time that should be spent in rest and sleep is certainly as common among men as among women workers and accounts largely for the loss of efficiency and time on the part of both sexes in nightwork.- The case against nightwork, then, may be said to rest upon several grounds. In the first place, there are the remotely injurious effects of permanent nightwork manifested in the later years of the worker's life. Of more immediate importance to the average worker is the disarrangement of his social life, including the recreational activities of his leisure hours and the ordinary associations of normal family relations. From an economic point of view, nightwork is to be discouraged because of its adverse effect upon efficiency and output. A moral argument against nightwork in the case of women is that the night shift forces the workers to go to and from the factory in darkness. Recent experiences of industrial nations have added much to the evidence against the continuation of nightwork, except in extraordinary circumstances and unavoidable emergencies. The immediate prohibition of nightwork for all laborers is hardly practicable; its discontinuance in the case of women employees is unquestionably desirable. 'The night was made for rest and sleep and not for work' is a common saying among wage-earning people, and many of them dream of an industrial order in which there will be no night shift.Disposition Petition denied

Sec. 2. Exemption. - The provisions of this Rule shall not apply to the following persons if they qualify for exemption under the condition set forth herein: (c) Officers or members of a managerial staff if they perform the following duties and responsibilities: (1) The primary duty consists of the performance of work directly related to management policies of their employer; (2) Customarily and regularly exercise discretion and independent judgment; (3) [i] Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or [ii] execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or [iii] execute under general supervision special assignments and tasks; and (4) who do not devote more than 20 percent of their hours worked in a work-week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2), and (3) above.