KIMBERLY CLARK PHILIPPINES, PETITIONER, VS. VOLUNTARY ARBITRATOR DANILO LORREDO AND UNITED KIMBERLY CLARK EMPLOYEES UNION- PTGWO, RESPONDENTS.

A Voluntary Arbitrator’s decision which is final and
unappealable, as a rule^[1], is
assailed in this special civil action for certiorari under Rule 65 of
the Rules of Court. Since the voluntary
arbitrator regrettably has not expounded on what appears to be the threshold
issue, we have decided to accept for consideration the petition.

Petitioner Kimberly-Clark Philippines, Inc. (KCPI), seeks to set aside the
Resolutions of 15 October 1991 and 21 November 1991 of public respondent
Voluntary Arbitrator Danilo Lorredo, holding that the nephew of a retired
employee should be employed by KCPI as his replacement pursuant to Section 1,
Article XX, of their Collective Bargaining Agreement (“CBA”).

The pertinent provisions of the CBA^[2],
relevant to the controversy, is hereinafter quoted:

“Art. XX – Resignation, Retirement, Disability and Death.

Section 1. The COMPANY
agrees to employ, the immediate member of
the family of an employee provided qualified, upon the employee’s resignation,
retirement, disability or death. In
case of resignation, however, employment
of an immediate member of the family of an employee may be allowed provided the
employee has rendered a service of ten (10) years and above and the resignation
is not a forced resignation. For the
purpose of this section, the phrase ‘immediate member of the family of an
employee’ shall refer to the employee’s
legitimate children and in default thereof to the employee’s collateral
relative within the third civil degree. The recommendee of the retired/resigned employee shall, if qualified, be
hired on probationary status.”

Danilo L. Guerrero, an employee assigned as Operator B in KCPI’s
Finishing Section, voluntarily resigned on 02 January 1991, after thirteen (13)
years and three (3) months of employment with the petitioner corporation.^[3]

Pursuant to Section I, Article XX, of the aforementioned CBA,
Guerrero, through the Union, recommended for hiring his nephew (name
undisclosed from the records), who is a collateral relative within the third
civil degree.

In a letter, dated 16 April 1991^[4], KCPI
informed the Union, through its President, that it could not act favorably on
Guerrero’s recommendee “(i)n as much as Mr. Danilo L. Guerrero has
legitimate children * * *”, namely: Joanne Guerrero (ten years of age), Mary Anne Guerrero (seven
years of age) and Dianne Guerrero (three years of age). The private respondent argued that, since
Guerrero’s legitimate children are still minors, he could validly recommend for
hiring his nephew.

Failing to agree on the proper interpretation of Article XX,
Section 1, of the CBA and after exhausting remedies through the grievance
machinery, the parties agreed to submit their dispute for voluntary
arbitration.

A submission agreement^[5] was
then filed with the National Conciliation and Mediation Board, Regional Branch
No. IV. Arbitrator Danilo Lorredo was
assigned to resolve the central issue of how the above cited CBA provision
should be construed.^[6]

On 15 October 1991, after hearing and the submission of position
papers, reply, rejoinder and counter-rejoinder, the voluntary arbitrator
rendered his disputed resolution,^[7] the
pertinent portions of which read:

* * *                 * * *                 * * *

“Indeed the issue that needs resolution is not whether the
Union’s or the Company’s interpretation is correct. What should be resolved is whether or not the implementation of
the questioned provision of the CBA is well within the spirit of the
provision. The relationships of the
replacements with the retired employees should control. They are within the covered provision. Admittedly, they were hired as replacements
of the concerned retired employees pursuant to the questioned CBA
provision. We have to agree with the
Union’s posturing on this point. The
Company’s argument evades the issue. It
maintains that these relatives who replaced the resigned employees were hired
as contractual before they became regular employees. This fact is not is issue. In what status the replacement started at the company is not in
issue. The issue is they were employed
by the Company as replacements of the resigned, retired and dead
employees. This has not been
controverted. It is basic that mere
denials cannot prevail over positive assertion.

In fine, the Company has implemented the questioned provision of
the CBA in such a manner that retired employees have been replaced by their
relatives within the degree allowed by the CBA. This is the fact of the matter. And no reason has been put forth why the nephew of Mr. Guerrero should
be treated differently.

What has appeared as a sore thumb in the whole exercise is the lack
of procedure in the replacement. There
is no showing how the retired employee manifests his intent to be
replaced. However, the fact remains
that the replacements were hired at the instance of the retired employee. And the Company accepted them. We find nothing illegal or immoral in the
manner the questioned CBA provision has been implemented. What is disturbing is why all of a sudden
the Company now objects to the hiring of Mr. Guerrero’s nephew as his
replacement. We hold that the nephew of
retired employee Danilo Guerrero should be employed by the Company as his
replacement pursuant to Section 1, Article XX of the Collective Bargaining
Agreement. (emphasis supplied)

* * *          * * *                 *
* *

SO ORDERED.”

A motion for reconsideration
was denied in the arbitrator’s resolution of 21 November
1991.^[8]

Hence, this petition.

The question, as aforesaid, focuses on the proper interpretation
of the aforequoted Section 1, Article XX, of the Collective Bargaining
Agreement. KCPI reiterates its stand that since Danilo Guerrero
has legitimate children of his own, he cannot recommend his nephew for hiring
under the pertinent provisions of the CBA. Private respondent, on the other hand, asserts that since Guerrero’s
children are still minors, he can recommend his nephew (a collateral relative
within the third civil degree) for hiring, and the petitioner corporation is
obligated to hire him under the same CBA provision.

A collective bargaining agreement, just like any other contract,
is respected as the law between the contracting parties and compliance
therewith in good faith is mandated.^[9]
Similarly, the rules embodied in the Civil Code^[10] on the
proper interpretation of contracts can very well govern.^[11] The
intention of the parties is primodial;^[12] if the
terms of the contract are clear, the literal meaning of the stipulations shall control,^[13] but if the words appear to be
contrary to the evident intention of the parties, the latter shall
prevail over the former.^[14]

The company has agreed in its CBA with the employees “to employ (an)
immediate member of the family
provided qualified upon the employee’s resignation, retirement, disability or
death.” This is its basic covenant. Covered
by the term “(an) immediate
member of the
family” are the employee’s legitimate children and, in default
thereof, a collateral relative within the third civil degree; it is thus a
definition by inclusion. As we see it, the phrase “in default
thereof” has not been intended or contemplated by the parties as having a
preclusive effect within the group. It simply sets a priority on who can possibly be recommendees for
employment. The employee, in fine, need
not be childless at all for him to be allowed to nominate a third degree
collateral relative; otherwise, his ability to designate such relative is all
but suddenly lost by the birth of an only child and regained by the latter’s
demise. This situation could not have
been intended.

Even in government and corporate hierarchy, when a next ranking
official is to take over the authorities and responsibilities of a superior,
such as when the latter is “absent” (the literal and ordinary meaning
of “in default of”), such absence merely means his non-availability,
not necessarily that he be extant, in order to permit the former to assume the
office.

We take note, furthermore, that KCPI is not obligated to
unconditionally accept the recommendee since the latter must still meet the
required employment standards theretofore set by it. And even when the recommendee is qualified, he, nonetheless,
shall be hired only, pursuant to the agreement, on a “probationary
status,” an added measure, we assume, to further prove his worth for
eventual regular employment. The
company is not, therefore, left without its own safeguards under the agreement.

WHEREFORE, the petition is hereby DISMISSED. The questioned resolutions of 15 October
1991 and 21 November 1991 are hereby AFFIRMED. No costs.

SO ORDERED.

Bidin, (Acting Chairman), Romero, and
Melo, JJ., concur.

Feliciano, J., (Chairman),on
leave.

^[1]
Eternit Employees and Workers Union
v. De Veyra, G.R. No. 50110, 189 SCRA 752/1990/.

^[2]
Annex “C”, Petition, Rollo, 41.

^[3]
Ibid., 45; 160.

^[4]
Annex “D”, Petition, Rollo, p. 42.

^[5]
Annex E-1, Ibid., 44.

^[6]
Annex “E”, Ibid., 43.

^[7]
Annex “A”, Ibid., 35-39.

^[8]
Annex “B”, Petition, Rollo, 40.

^[9]
Article 1159, Civil Code; Alex Ferrer v. NLRC, G.R. No. 100898, 05 July
1993; Marcopper Mining v. NLRC, G.R. No. 83207, 200 SCRA 167/1991/; Pe v.
IAC, 195 SCRA 137.

^[10]
Article 1370 to Article 1379, Civil Code.

^[11]
Marcopper Mining v. NLRC, 200 SCRA 167, supra.

^[12]
Article 1170, Civil Code; Kasilag v. Rodriguez, 69 Phil. 217/1939/.

^[13]
Ibid; Alim v. CA, 200 SCRA 450; Honrado, Jr. v. CA, 198 SCRA
326; Papa v. Alonzo, 198 SCRA 564.

^[14]
Article 1370, Civil Code; Sy vs. Court of Appeals, 131 SCRA 116.