ATLANTIC GULF & PACIFIC CO. OF MANILA, INC., PETITIONER, VS. COURT OF INDUSTRIAL RELATIONS AND A.G. & P. EMPLOYEES AND WORKERS’ UNION (PAFLU), RESPONDENTS.

Appeal
by certiorari from a decision of the Court of Industrial Relations
convicting Atlantic Gulf and Pacific Co. of Manila, Inc., hereafter
referred to as the petitioner, of unfair labor practice and directing
the same to cease and desist from committing further acts of unfair
labor practice and to reinstate Felipe Mercado to his former position,
with back wages from the time of his dismissal up to his actual
reinstatement.

Felipe Mercado was petitioner’s employee since
1928. He rose from the ranks until he became foreman supervisor.
Admittedly, he was an efficient employee Respondent Atlantic Gulf and
Pacific Free Workers and employees Union (PAFLU), hereafter referred to
as the Union, is a legitimate labor organization, some of whose members
are workers or employees of petitioner herein, including Mercado, Who
had been one of the organizers of said Union and was its auditor since
March 1957. As such he was active in holding meetings and caucuses
among union members, which were held at his place of work, during off
hours and lunch breaks, with petitioner knowledge. He was, also,
active, in July, 1953, as one of the watchers, in an election, held
under the supervision of the Department of Labor, in connection with
the certification election proceedings in Case No. 495–MC, in which the
PAFLU–to which respondent Union is affiliated–and NLU were the
contenders.

On October 28, 1958, Mercado was dismissed by
petitioner for allegedly taking out from the company premises, on
October 4, 1953, two (2) brushes and the handle of a hammer, valued at
P1.00 each. Alleging that the true reason for Mercado’s dismissal was
his union affiliation and activities, the Union charged petitioner with
unfair labor practice. In due course, the corresponding complaint
therefor was filed against petitioner, and, after appropriate
proceedings, the Court of Industrial Relations rendered the decision
adverted to above. On motion for reconsideration filed by petitioner,
said decision was affirmed by a divided Court sitting en banc. Hence, this appeal by certiorari.

The
main issue is, as it was in the lover court, whether or not the
dismissal of Mercado had been due to his union activities. This is a
question of fact which was affirmatively decided by said court, whose
finding thereon is conclusive upon us. Petitioner maintains, however,
that it is not upon the ground that the lower court had committed a
grave abuse of discretion in making the aforementioned finding there
being allegedly no evidence whatsoever in support thereof. The record
before us refutes this pretense.

The Union introduced
evidence, consisting mainly of the testimony of Felipe Mercado, Ruben
Pangan and Benito Samonte, to the effect that several days before the
election adverted to above, petitioner’s shop superintendent, Robert
Russel, talked to Mercado about the membership of they Union and its
activities and branded the PAFLU as a communist organization; that
Mercado refuted the charge by showing to Russel the minutes of the
meetings of said organization; that, in reply, Russel told Mercado that
he was like Luis Taruc, the HUK leader; that on October 24, 1953, at
about 4:15 p.m., as Mercado was about to leave the company compound
carrying a bundle, he unwrapped the same before the gateman and showed
its contents, consisting of two (2) brushes and the handle of a hammer,
stating that he wanted to bring the same with the intent of using them
in the cemetery and returning them the next day; that the gateman
advised him to secure a pass and that, if he could not get one that
afternoon, he could leave said objects and then obtain a pass the next
day; that he agreed to this arrangement and left the brushes and hammer
handle with the gateman; and that on October 28, he was dismissed by
appellant upon the pretext that he had taken out said property from its
compound.

Petitioner tried to prove that Mercado had not
voluntarily and upon his own initiative presented the bundle already
referred to and its contents to the gateman, who turned out to be
Rodolfo Caminio, and that the latter had to forcibly grab said bundle
in order to take possession thereof. The evidence of petitioner thereon
consisted, however of the testimony of its security guard, Cornelio
Tongson, who, not having witnessed the occurrence, declared about a
conversation he allegedly had with Gaminio shortly thereafter. Likewise
placed on the witness stand by the petitioner were Ricardo Mamuyac and
Eladio Morales, who testified about a report allegedly submitted to
them by Tongson and Gaminio, The lower court found that the story by
Tongson, Mamuyac and Morales were hearsay evidence. Inasmuch, moreover,
as petitioner had not presented Caminio as witness, upon the ground
that he was no longer under its employment, and that there was no
competent evidence contradicting the testimony of Mercado concerning
the incident on October 24, 1958, the lower court accepted the version
of respondent Union and held that, in the afternoon of October 24,
1958, Mercado had voluntarily shown the objects aforementioned to
petitioner’s gateman, and informed him of his intent to use them in the
cemetery (presumably in connection with the All Saints’ Day on November
1), and then to return them the next day (October 25, 1953) and that
Mercado had no intent of appropriating said object.

Considering,
also, (1) that Mercado had been in petitioner’s service for thirty (30)
years; (2) that he was, admittedly, an efficient employee; (3) that
another employee of the company, suspected of stealing ten (10) empty
drums (seemingly of oil or gasoline), had merely been suspended for six
(6) months, so that petitioner could not have believed that Mercado
should be dismissed for having tried to use company property–worth only
P300, or much less than said drums–under the aforementioned conditions;
(4) that petitioner had given Mercado no opportunity to defend himself
before dismissing him; (5) that Mercado had been very active as member
of respondent Union, particularly in a certification election contested
between said Union and another labor organization, about three (3)
months before his dismissal; and (6) that petitioner’s shop
superintendent had branded respondent Union as a communist organization
and told Mercado that he was like Luis Taruc, the HUK “supremo”, we are
not prepared to hold that a grave abuse of discretion had been
committed by the lower court in concluding that the union activities of
Mercado were the cause of his dismissal or of the discrimination that
the same entailed against him, when compared or contrasted with the
action taken by petitioner against the employee suspected of stealing
ten (10) drums.

It is urged that, being a foreman supervisor,
Mercado was, pursuant to section 3 of Republic Act No, 875, “not
eligible for membership in a labor organization of employees under
their supervision”; that he was not, therefore, a lawful member and
officer of respondent Union; and that, consequently, he is not
protected by law for his activities as such.

This question
was not raised, however, in the lower court either before Judge B.
Villanueva, who rendered the decision appealed from, or before the
Court of Industrial Relations en banc. It cannot be
entertained, therefore, in this appeal, since it does not affect the
jurisdiction of said court, (International Oil Factory Workers Union
(FFW) vs. Hon. Martinez, et al., 110 Phil., 595.)

Upon
the other hand, the aforementioned section 3 explicitly provides that
“employees”–and this term includes supervisors–”shall have the right to
self-organization, and to form, join or assist labor organizations of
their own choosing for the purpose of collective bargaining through
representations of their own choosing and to engage in concerted
activities for the purpose of collective bargaining and other mutual
aid or protection” and that “individuals employed as supervisors * * *
may form separate organizations of their own”. Indeed, it is well
settled that, “in relation to his employer”, a foreman or supervisor
“is an employee within the meaning of the Act” (see 169 ALR, 446-447,
citing Packard Motor Car Co. vs. National Labor Relations Bd. [1947]
US, 91 Led [Adv 697], 67 S. Ct. 789; National Labor Relations Bd. vs.
Skinner & K, Stationary Co. [1940; CCA 8th] 133 F, 2d 667; National
Labor Relations Bd. vs. Armour & Co. [CCA 10th]; Jones & L. Steel Corp. vs.
National Labor Relations Bd. [1945; CCA 5th] 146 F. 2d 833 [writ of
certiorari denied in [1945] 325 US 886, 89 L. ed, 2000, 65 S. Ct.
1575). For this reason, supervisors are entitled to engage in union
activities any discrimination against them by reason thereof
constitutes an unfair labor practice. Moreover, it does not appear that
employees under Mercado’s supervision are members of respondent Union.
Again, petitioner does not claim to have dismissed Mercado by reason of
the alleged illegality of his membership in respondent Union. Lastly,
the case of N.L.R.B. vs. Inter-City Advertising Co., 190 F.
2d, 420) cited by petitioner is not in point, for supervisors are
expressly excluded from the definition of “employees” contained in the
statute therein relied upon,^[1] unlike the definition of employees found in our Republic Act. No. 875.^[2]

Wherefore, the decision appealed from is hereby affirmed, with costs against petitioner herein. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon and De Leon, JJ., concur.

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^[1] “The term ’employee’ shall
include any employee, and shall not be limited to the employees of a
particular employer, unless this subchapter explicitly states
otherwise, and shall include any individual whose work has ceased as a
consequence of, or in connection with, any current labor dispute or
because of any unfair labor practice, and who has not obtained any
other regular and substantially equivalent employment, but shall not
include any individual employed as an agricultural laborer, or in the
domestic service of any family or person at his home, or any individual
employed by his parent or spouse, or any individual having the status
of an independent contractor, or any individual employed as a supervisor,
or any individual employed by an employer subject to the Railway Labor
Act, as amended from time to time, or by any other person who is not an
employer as herein defined.” (29 USCA, Sec. 152[3] p. 201; (Italics
ours.)

^[2] “The term ’employee’
shall include any employee and shall not be limited to the employee of
a particular employer unless the Act explicitly states otherwise and
shall include any individual whose work has ceased as a consequence
of,or in connection with, any current labor dispute or because of any
unfair labor practice and who has not obtained any other substantially
equivalent and regular employment” (Republic Act N0. 875, Section
2[d]).