CEBU PORTLAND CEMENT COMPANY, PETITIONER, VS. CEMENT WORKERS UNION, LOCAL 7-ALU AND COURT OF INDUSTRIAL RELATIONS, RESPONDENTS.

Petitions filed in this Court by the Cebu
Portland Cement Company (CEPOC) for review of the single decision of the Court
of Industrial Relations, in its Cases Nos. 35-IPA, 276-ULP-Cebu and
278-ULP-Cebu, on the fol­lowing grounds:

1.                
The findings of the Court of Industrial
Relations that there was discrimination against Union members in the assignment
of work during Saturdays, Sundays and legal holidays, are not supported by
substantial evidence;

2.                
The findings of the Court of Industrial
Relations that there was discrimination in the appointment of Union members to
permanent positions, are not supported by substantial evidence;

3.                
The management of petitioner CEPOC has power to
compel its employees and workers to take vacation and/or sick leaves of absence
whenever its finances so warrant; and

4.                
The Court of Industrial Relations gravely abused
its discretion in not ordering the dismissal from the service of the workers or
employees who actively participated in the strike of March 24, 1961.

On March 24, 1961, about 300 workers of CEPOC at its plant in Tinaan, Naga, Cebu
City, and affiliated with the Cement Workers Union, Local 7-ALU (hereafter
referred to as the Union), staged a strike, allegedly because of CEPOC’ s refusal to honor its oral commitment to incorporate
in the collective bargaining agreement, then in the process of renewal, a provision for the collection of a
monthly agency fee of P1.00 from every employee non-member of the Union.  Certified by the President of the Philippines
to the Court of Industrial Relations, the case was docketed therein as Case No.
35-IPA.  At about the same time, on
complaint by the Union, a case for unfair labor practice against CEPOC was
filed in the Labor Court based also on the company’s alleged refusal to bargain
with the workers (CIR Case No. 276-ULP-Cebu). 
Thereupon, the CEPOC similarly filed unfair labor practice charges
against the Union, for having staged an illegal strike
and for having employed threats, intimidation and violence in the prosecu­tion
of the aforesaid strike, which resulted in death to one employee and physical
injuries to several others.  This case
was docketed as CIR Case No. 278-ULP-­Cebu. 
Pending final settlement of the controversy, the Labor
Court issued a return-to-work order, and the
strikers were able to work again on July
6, 1961.

On November 6, 1964,
in a single decision rendered in the three cases, the Court declared the strike
illegal, its cause or aim being unjust, trivial and unreasonable.  Accordingly, the mutual charges of unfair
labor practice filed by the parties against each other (CIR Cases Nos.
276-ULP-Cebu and 278-ULP?Cebu), arising from the same demand of the Union
for collection of agency fees from non-Union members, were dismissed.  However, having also found that there was
discrimination against Union-members (a) in the assignment of employees to work
on Saturdays, Sundays and legal holidays, as well as in the night shift, and
(b) in the appointment of 6 Union members to permanent positions with lower
salary range, the court below ordered the CEPOC:  (1) to pay to those who were discriminated
against in the assignment of work on Saturdays, Sundays and legal holidays the
wages that they thus failed to receive; (2) to pay the night premium or salary
differential to those strikers who were not given change in their shift
assignments and remained in the day shift; and (3) to pay to the six employees
(Dionisio Lapitan, Ponciano Mabatid, Vicente Siarza, Sabino Canillo, Fructuoso Gil and Pedro
Sanchez) the difference in wages which they failed to receive because of
discrimination in the classification of their positions.  Addi­tionally, finding that CEPOC’s memorandum of April 4, 1961, issued when the labor
dispute was already pending before the Labor Court, and requiring its employees
to go on 3 days sick and vacation leaves of absence every month, was made in
violation of its return-to-work order, the lower court ordered CEPOC to restore
the accumulated leaves of the employees who were forced to use such leaves and
to pay the wages that they thus failed to receive.  To facilitate the computation of the amounts
involved in the award, the Chief of the Examining Division of the said court
was directed to examine the records and other per­tinent documents of the
company relative to the service of the affected employees and to submit to the
court a corresponding report thereon. 
Its motion for reconsideration of the above-mentioned decision having
been denied by the court in banc, CEPOC appealed, for the reasons
already stated at the begin­ning of this opinion.

Passing upon the Union-charge that the CEPOC discriminated
against the strikers in the assignment of employees to work on weekends and
legal holidays and on the night-shift, the court below declared:

“With respect to discrimination in the assignment of work for
Saturdays, Sundays and legal holidays, the evidence is clear that the strikers
except a very few of them were not permitted to work on those days.  Ad­mittedly, prior to the strike on March 24, 1961, workers performing
operational work worked on Saturdays, Sundays and legal holidays.  The shortage of coal and economic measure
contended by Cepoc would not justify the author­ization
granted to the non-strikers to continue working on those days while only a very
few strikers were granted the same privilege. 
By withholding this privilege to most of the strikers, they were
deprived of additional compensation for work performed on those days.

“The same justification – shortage of coal and eco­nomic
measure – was interposed by Cepoc, as regard the Union’s
claim of discrimination in shift assignments. 
It is also claimed that before and after the strike Cepoc
was operating at a loss and in order not to incur additional Ob­ligation for
work rendered at night, the workers were assigned to work in the day shift and
only in cases of urgent necessity were they allowed to work during the
night.  But even granting this to be
true, this alone can not justify why only non-strikers were given changes in shift
while strikers remained in the day shift, thus deny­ing them the night-work
differential pay equivalent to 25% enjoyed by those assigned in the 2nd shift
(3:00 P.M. to 11:00 P.M.) and 3rd shift (11:00 P.M. to 7:00 A.M. the following
day) and greatly reducing their take home pay.”  (pages 13-14,
Decision)

In assailing the correctness of the above conclusions of the
lower court in this proceeding, petitioner confines itself to saying that the
assignment of personnel rendering work on weekends, legal holidays and at
nighttime was dictated by necessity; that considering the small volume of work
to be done and the bad financial condition the company was in, it would be poor
business management to have required everybody to render such services and to
pay the corresponding extra wages. 
Petitioner, in so arguing, totally missed the point at issue, because
the judgment of the lower court precisely was premised on the presumption that
the rotation of personnel to do extra work was proper.  In other words, the question to be resolved
here is not the propriety or impropriety of the rotation measure adopted by the
company but whether or not in the execution of such measure the strikers or
union-members were dis­criminated against.

The court below, considering the evidence therein presented,
found for the Union, and ruled that the charges of
discrimination have been duly es­tablished, a conclusion which petitioner has
failed to disprove.  The findings of the
lower court in this point must, therefore, be respected and maintained,
particularly since appellant does not cite any portion of the record in support
of its claim that the CIR findings are without substantial evidentiary support.

As regard the alleged discrimination in the appointment of
union-members Dionisio Lapitan,
Ponciano Mabatid, Vicente Siarza, Sabino Canillo, Fructuoso Gil and Pedro
Sanchez, the records show that as of 1951 these employees were occupying the
positions of Mixed Control Chemists at P195.00. 
On June 30, 1957,
they were promoted in salary to P215.00 a month.  For lack of appropriate civil service
eligibility, however, their appointments were noted as temporary by the Civil
Service Commission.  When the WAPCO law
went into effect on July 1, 1957,
the positions of the above-named employees, based on their statements of
duties, were classified as Construction Material Chemists with Range 34, at
P259.00 a month.  As they protested
against this classification,^[1]
said employees were required to submit another statement of their respective
duties, and, based on this later statement, their positions were reclassified
by WAPCO as Senior Chemical Laboratory Technician, with salary range 27, at
P183.00 a month.  It is their appointment
to these positions with lower salary range that the Union
contested allegedly for being discriminatory.

Sustaining the charge that the appointment of the six employees
to the reclassified positions constituted discrimination, the lower court said:

“If as alleged these mix-control chemists were reclassified to
a lower position classification because of their protests and objections to a
higher classification, it is surprising why non-union members Celso Perez and Jaime Medicielo,
who were the least senior in point of service and appointment to these
positions, were reclassified to Range 33, or only one grade lower than their
previous position classification of Range 34, while the rest who were more
senior in the service and were appointed much earlier to these positions were
reclassified to Range 27, a difference of seven grades from their former
position classification.  Apparently the
job description, wherein the job classification of the WAPCO is based, while
accomplished by the employee concerned, must be with the advice and approval of
the superior in the plant and non-union members were properly advised and
informed by the superior what should be reflected in the prepara­tion of their
job description otherwise there seems to be no plausible reason why they should
not be uniformly reclassified as before if the job descrip­tion submitted by
them were of equal import.” (pages 14-15,
Decision)

It can not be denied that the classification of positions was undertaken not by petitioner
CEPOC but by WAPCO, over which the former has no control; that the
position-classification was based on the statements of duties submitted by the
employees themselves; and that the appointments complained of were made
pursuant to WAPCO’s classification.  CEPOC, nevertheless, was found guilty of
discrimination in making the appointments because, according to the lower
court, the superior of the employees at the plant must have advised the
non-Union members on what to state in the job description form, inferring that
no such advise was given to members of the Union; otherwise, there was no
reason why the positions involved in this case would be given a different clas­sification
and lower salary range than the others.

It is the rule well established in this jurisdiction that for the
factual findings of the Court of Industrial Relations to be conclusive upon
this Court, they must be supported at least by substantial and credible proof.^[2]  The reasoning given by the lower court for
its conclusion in connection with the appointments of the six-named employees,
however, is as good an admission as any that there was no evidence presented
during the hearing to support the dis­crimination-charge against the CEPOC, so
that the finding on the latter’s cul­pability was made to rest only on an
inference derived from the absence or want of reason for the alleged
discriminatory act.  This we cannot uphold.  The lack of justification for an act alleged
to be discriminatory by itself, would not be that kind
of evidence that could establish the fact of discrimination.  For a new inference may only be drawn from
another inference, provided the first inference has the required basis of a
proved fact;^[3]
and this is not so in the present cases.

Petitioner also seeks nullification of the Labor
Court’s order to restore to the employees
concerned the vacation and sick leaves that they were forced to take in
compliance with the company’s memorandum of August 4, 1961, and to pay the wages that they failed to
receive on account of such forced leaves. 
It is claimed that as a corporation, petitioner has the power to compel
its em­ployees to use up their earned sick and vacation leaves when the condition
of the company’s finances so requires.

But there is hardly any controversy in this regard, because the
fact that petitioner may have authority to compel its employees to go on forced
leave to avoid its accumulation has no consequence in these appeals.  It may be pointed out that the lower court’s
order now in dispute was precipitated not by any lack of authority of the
company but by the court’s finding that the memorandum of August 4, 1961 was made in violation of its
return-to-work order of April 8, 1961.  Considering that an order to return to work,
which the Labor Court may properly issue in the exercise of its power of
arbitration and conciliation,^[4]
is intended to restore the strikers to their positions in the company under the
last terms and conditions existing before the dispute arose,^[5]
the enforcement of a new company policy, requiring the employees to use up
their earned leaves instead of accumulating them, without judicial
authorization, would indeed constitute a violation of such order for the main­tenance
of status quo in the relations between the workers and the
company.

Petitioner Cement Company charges the Court of Industrial
Relations with grave abuse of discretion for not ordering the dismissal of the
workers who actively took part in the illegal strike, invoking in support of
its con­tention the ruling of this Court in the case of National Labor Union Inc., et al. vs. Philippine Match Factory (70 Phil. 300).

The contention cannot be sustained.  For while it is true that in the above-cited case, promulgated on June
27, 1940, this Court declared:

“The petitioners’ strike in the instant case is clearly
unjustified.  Their cessation from their
employment as a result of such an unjustified strike is one of such
consequences which they must take by the choice of a remedy of their own,
outside of the statute.  To compel the
respondent company, under the circumstances, to readmit the petitioners to
their employment would be to lend countenance to what the Constitution and the
law seek to avoid, and give protection to those who, by their conduct, have
forfeited their rights thereto,”

the rule on the
matter has since undergone a lot of change. 
In fact, a reading of the decisions of the post-war Supreme Court on the
effects of an illegal strike would reveal the marked, if gradual, departure
from the aforesaid doctrine, as was to be expected, in view of the change in the
regulation of labor relations from compulsory arbitration under Commonwealth
Act 103 to free bargaining under Republic Act 875.

For a time, decisions on the issue under consideration were
characterized by strict adherence to the ruling in the Philippine Match Factory case.^[6]
As late as 1956, this was still the prevailing rule.^[7]
However, although in another case it was held that –

“But if the motive that had impelled, prompted, moved or led
members of a labor union or organization to stage a strike, even if they had
acted in good faith in staging it, be unlawful, illegitimate, unjust, un­reasonable
or trivial, and the CIR, the agency entrusted by the Government to determine
it, finds it so, then the strike may be declared illegal.  (Interwood
Em­ployees Association vs. International Hardwood & Veneer Co., 99 Phil.
82, 1956.)

a dissent was
already registered.  Some members of the
Court looked upon dismissal as excessive penalty at least for those workers who
were merely misled by their leaders to join the strike.

The actual break-away from the doctrine laid down in the Philippine Match Factory case came in Dinglasan vs. National Labor Union,^[8]
when the discretionary power of the Court of Industrial Relations to grant
affirmative relief was recognized.  Thus,
although it was therein found that there was no look out committed by the
employer, and that the stoppage of work was voluntary on the part of the
drivers, the order of the Labor Court
for the return of said drivers to their work was sustained.  Finally, in 1964, this Court ruled that
striking employees are “entitled to reinstatement whether or not the strike was
the consequence of the employer’s unfair labor practice”, the only
exceptions thereto being in cases where the strike was not due to any unfair
labor practice on the part of the employer and said employer has hired others
to take the place of the strikers, or where the strikers have committed
unlawful conduct or violence.^[9]
Thereafter, the doctrine enunciated in Interwood
Em­ployees Association, supra, that good faith of the strikers in
the staging of the strike is immaterial in the determination of the legality or
illegality of the strike, was abandoned. 
In the case of Ferrer vs. CIR, et
al.,^[10]
the belief of the strikers that the management was committing unfair labor
practice was properly considered in declaring an otherwise premature strike,
not unlawful, and in affirming the order of the Labor
Court for the reinstatement without back wages of
said employees.

In the present cases, considering that the strikers’ demand for
deduction of an “agency fee” from non-members was made in 1961, over
two years before our decision in National Brewery & Allied Industries Labor
Union vs. San Miguel Brewery, Inc., L-18170 (August 31, 1963) declared, for the
first time, that such agency fee was not lawfully demandable; that the strikers
offered to return to work, and, in fact, did return to work when so ordered by
the Labor Court; and there is no proof that all of them had resorted to, and
were convicted of, unlawful acts committed in the prosecution of the strike, we
find no abuse of dis­cretion in the denial by the court below of the company’s
plea for the dismissal of the said strikers. 
Of course, following the jurisprudence on the matter, the separation
from the service of those who may be found guilty of unlawful acts committed in
carrying out the strike may properly be decreed.^[11]

For its part, on the pretext of trying to maintain the judgment
on appeal, respondent Union assigns in its brief as
error allegedly committed by the lower court the declaration of the illegality
of the strike of March 24, 1961.  The point cannot be entertained in this
proceeding.  In spite of respondent’s
protestations it is evident that the assigned issue should have been raised by
art appellant.  Having failed to appeal,
from that portion of the decision declaring the strike illegal, the Union
can no longer be heard to question that ruling which by now has become final.

WHEREFORE, with
the modification that the petitioner CEPOC is not liable to pay the
differential salary awarded by the lower court to the six employees named in
the complaint, there being no discrimination employed by petitioner in the
appointment of said employees to their present positions, the decision appealed
from is affirmed in all other respects. 
Accordingly, these cases are remanded to the lower court for compliance
with the judgment herein.  Costs against petitioner.

Concepcion, C.J., Dizon,
Makalintal, Sanchez, Castro, Angeles, Fernando, and Capistrano, JJ., concur.

Zaldivar, J., on official leave, did not take part.

^[1]
Presumably because they do not possess the appropriate civil
service eligibility.

^[2]
Union of Philippine Education Employees (NLU) vs. Phil. Education Co.,
91 Phil. 93; Laguna Transportation Employees Union, et al. vs. Laguna
Transportation Co., Inc., L-23266, April 25, 1968, and many others.

^[3]
Vol. 1, Jones Commentaries on Evidence, 2nd ed., on
page 22, and cases cited therein.

^[4]
Philippine Marine Radio Officers Association vs. CIR, L-10095 &
L-10115, Oct. 31, 1957; Feati University vs.
Bautista, L-21278, 21462 & 21500, Dec. 27, 1966; Bachrach
Transp. Co. vs. Rural Transit Shop Employees
Association, L-26764, July 25, 1967.

^[5]
Section 19, Commonwealth Act 103.

^[6]
Luzon Marine Department Union vs. Arsenio C. Roldan, et al., 86 Phil. 507 (1950); Philippine Can Company
vs. CIR, et al., 87 Phil. 9 (1950); Standard Coconut Corp. vs. CIR,
et al., 89 Phil. 562 (1951); Liberal Labor Union vs. Phil. Can
Co., 91 Phil. 72 (1952); Manila Oriental Sawmill Co. vs. NLU, L-6943,
Dec. 29, 1954; INSUREFCO Paper Pulp & Project Wokers
Union vs. Insular Sugar Refining Corp., 95 Phil. 61 (1954); Almeda, et al. vs. CIR, et al., 98 Phil. 17 (1955).

^[7]
National City Bank of New York vs.
National City Bank Employees Union, 98 Phil. 301 (1956).

^[8]
106 Phil. 671 (1959).

^[9]
Cromwell Commercial Employees & Laborers Union (PTUC) vs. CIR, et
al., L-19778, Sept. 30, 1964, 27 SCRA, 352; reiterated in Phil. Steam
Navigation Co. vs. Phil. Marine Officers Guild, et al., L-20667-69, Oct.
29, 1965.

^[10]
L-24267-68, May 31, 1966; also Norton & Harrison Co. & Jackbilt Concrete Blocks Co. Labor Union (NLU) vs.
Norton & Harrison Co. & Jackbilt Concrete
Blocks Co., Inc., et al., L-18461, Feb. 10, 1967, 19 SCRA, 310, PHILD. 1967A, page 245.

^[11]
Cromwell Commercial Employees and Laborers Union (PTUC) vs.
CIR, L-19778, Sept. 30, 1964;
Consolidated Labor Assoc. vs. Marsman & Co.,
L-17038, July 31, 1964; United Seamen’s Union vs. Davao Shipowners
Assoc. (1961) 30 SCRA 1226.