ODELIA S. FUNGO, Petitioner, vs. LOURDES SCHOOL OF MANDALUYONG and FR. SERVILLANO B. BUSTAMANTE, OFM, CAP., Respondents.

G.R. No. 152531July 27, 2007

SANDOVAL-GUTIERREZ, J.:

FACTS:Petitioner filed a complaint for illegal dismissal when she was forced to resign and accept her separation payment. According to the petitioner, Fr. Bustamante urged her to tender her resignation within 30 minutes from when she was summoned to his office. He threatened her that if she would not resign, her separation pay would be forfeited. Before her dismissal, Fr. Bustamente required the petitioner to explain in writing why she should not be dismissed from employment for wilful breach of trust reposed on her when she retrieved some documents from the filing cabinet wherein she was given a duplicate key to. These documents contain the summary of efficiency ratings of all the teachers, including her husband’s who was dismissed from service due to an alleged low performance rating. The LA found that petitioner was constructively dismissed. This was reversed by the NRLC holding that petitioner voluntarily resigned. When her motion for reconsideration was denied, petitioner went to CA which dismissed the petition. With her motion for reconsideration being denied, petitioner elevated the case to the SC.

ISSUE: WON the petitioner was constructively dismissed from the service.

RULING:

There is constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice by him except to forego her continued employment.

An examination of the records of this case convinced us that petitioner was indeed made to resign against her will with threat that she will not be given her separation pay should she fail to do so. Clearly, her consent was vitiated. Indeed, it is very unlikely that petitioner, who worked in the school for almost fifteen (15) years, would simply resign voluntarily. Her receipt of the benefits could be considered as an act of self preservation, taking into consideration the financial predicament she and her family were then facing.

Thus, we rule that petitioner was constructively dismissed from her employment.

WENSHA SPA WELLNESS CENTER Inc. Vs. Loreta T. Yung

G.R. No. 185122

FACTS: Respondent was hired as personal assistant to Mr. Xu, president of Wensha. Sometime in august 2004, respondent was asked to leave her office because Mr. Xu and feng sui master was exploring the premises. Later that day, Xu asked loreta to go on leave with pay for one month.

When she returned, Xu and his wife asked her to resign because according to the feng shui master, her aura did not match that of Xu. Loreta refused but was informed that she could no longer work at Wensha. That same afternoon, Loreta went to the NLRC and filed a case for illegal dismissal against Xu and Wensha.

Wensha and Xu denied illegally dismissing Loreta’s employment. They claimed those to months after Loreta was hired, they received various complaints against her from the employees. They advised her to take a leave of absence for one month while they conducted an investigation on the matter. Based on the result of the investigation, they terminated Loreta based on loss of trust and confidence.

ISSUE: Whether or not dismissing an employee based on the advice of a feng sui master is legal.

Held: No. To be a valid cause for termination of employment, the act or acts constituting breach of trust must have been done intentionally, knowingly and purposely and they must be founded on clearly established facts. The Court find Loreta’s complaint credible as there is consistency in her pleadings and evidence. In contrast, Wensha’s pleadings and evidence, when taken as a whole, suffer from inconsistency. Moreover, the affidavits of employees pertain only to petty matters that, to the Court’s mind, are not sufficient to support Wensha’s alleged loss of trust and confidence.

AGRICULTURAL AND INDUSTRIAL SUPPLIES CORPORATION ET. AL. VS. JUEBER P. SIAZAR and THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION

G.R. No. 177970 August 25, 2010

This case dwells on circumstances that spell dismissal from work although the company insists that such circumstances indicate abandonment of work.

Facts:

, Siazar discovered that his company was not remitting much of his SSS premiums although the computations appeared on his pay slips. When he told his co-employees about it, they made their own inquiries, too. On Siazar’s arrival at work on June 17, 1997, the company guard refused him entry and handed him two notes from the management: one said that he was not to report for work; the other said that he was to report after two days on June 19, 1997 to Atty. Rodriguez at his office in Binondo. The latter told Siazar that the company had decided to abolish his department because of redundancy and he could no longer work.

On July 3, 1997 respondent Jueber P. Siazar (Siazar) filed a complaint for illegal dismissal and unfair labor practice against petitioner Agricultural and Industrial Supplies Corporation (AISC) and others before the National Labor Relations Commission (NLRC).

NLRC, which ruled to uphold the Labor Arbiter’s finding that the company did not dismiss him from work and that, misunderstanding its action, he ceased to report for work. It was all a misunderstanding, said the NLRC, and each party must bear his own loss to place them on equal footing. The NLRC sustained the award of separation pay to be reckoned the time Siazar worked for AISC. The NLRC also affirmed the grant to him of his unpaid salary and proportionate 13th month pay. Siazar asked for reconsideration but the NLRC denied it.

The CA thus ordered the company to reinstate Siazar and pay him full backwages, inclusive of allowances and other benefits or their monetary equivalent computed from the time of his dismissal up to the time of his actual reinstatement.

Two issues are presented:

1. Whether or not the Siazar’s dismissal was valid.

Court’s Ruling

No. From an examination of the record, the Court has ascertained that the evidence supports the CA’s finding that the company dismissed Siazar from work.

The company did not adduce any evidence to prove that Siazar’s dismissal had been for a just or authorized cause as in fact it had been its consistent stand that it did not terminate him and that he quit on his own. But given that the company dismissed Siazar and that such dismissal had remained unexplained, there can be no other conclusion but that his dismissal was illegal.

However, under Article 279 of the Labor Code, separation pay may be awarded to an illegally dismissed employee in lieu of reinstatement when continued employment is no longer possible where, as in this case, the continued relationship between the employer and the employee is no longer viable due to strained relations between them and reinstatement appears no longer practical due to the length of time that had since passed.

PHILIPPINE DIAMOND HOTEL AND RESORT, INC. (MANILA DIAMOND HOTEL) v.MANILA DIAMOND HOTEL EMPLOYEES UNION494 SCRA 195 (2006), THIRD DIVISION (Carpio Morales, J.)

An ordinary striking worker cannot be dismissed for mere participation in an illegal strike unless there be a proof that he committed illegal acts during a strike.

Facts: The Diamond Hotel Employee's Union (the union) filed a petition for Certification Election before the DOLE seeking certification as the exclusive bargaining representative of its members. The DOLE denied said petition as it failed to comply with the legal requirements. The Union later notified petitioner hotel of its intention to negotiate for collective bargaining agreement( CBA). The Human Resource Department of Diamond Hotel rejected the notice and advised the union since it was not certified by the DOLE as the exclusive bargaining agent, it could not be recognized as such. Since there

was a failure to settle the dispute regarding the bargaining capability of the union, the union went on to file a notice of strike due to ULP. In the meantime, Kimpo filed acomplaint for ULP against petitioner hotel. After several conferences, the union suddenly went on strike. The following day, the National Union of Workers in the Hotel, Restaurant and Allied Industries (NUWHRAIN) joined the strike and openly extended its support to the union. The NLRC thus issued a Temporary Restraining Order (TRO) directing the strikers to immediately "cease and desist from obstructing the free ingress and egress from the Hotel premises. During the implementation of the order, the striking employees resisted and some of the guards tasked to remove the barricades were injured. The NLRC declared that the strike was illegal and that the union officers and members who participated were terminated on the grounds of participating in an illegal strike.

ISSUE:

Whether or not the dismissal of the union members is valid on the grounds of participating in an illegal strike

HELD:

Yes. Even if the purpose of a strike is valid, the strike may still be held illegal where the means employed are illegal. Thus, the employment of violence, intimidation, restraint or coercion in carrying out concerted activities which are injurious to the rights to property renders a strike illegal. And so is picketing or the obstruction to the free use of property or the comfortable enjoyment of life or property, when accompanied by intimidation, threats, violence, and coercion as to constitute nuisance.

As the appellate court correctly held, the union officers should be dismissed for staging and participating in the illegal strike, following paragraph 3, Article 264(a) of the Labor Code which provides that ". . .any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during strike may be declared to have lost his employment status. . ." An ordinary striking worker cannot, thus be dismissed for mere participation in an illegal strike. There must be proof that he committed illegal acts during a strike, unlike a union officer who may be dismissed by mere knowingly participating in an illegal strike and/or committing an illegal act during a strike.

FAR EASTERN UNIVERSITY - DR. NICANOR REYES MEDICAL FOUNDATION (FEU-NRMF) and LILIA P. LUNA. M.D., Petitioners, versus FEU-NRMF EMPLOYEES ASSOCIATION-ALLIANCE OF FILIPINO WORKERS (FEU-NRMFEA-AFW), et al Respondents., G.R. No. 168362; October 12, 2006

(Strike, Requisites for a Valid Strike)

FACTS:

In 1994, petitioner FEU-NRMF (a medical institution organized and existing under the Philippine laws), and respondent union (a legitimate labor organization and is the duly recognized representative of the rank and file employees of petitioner), entered into a CBA that will expire on 30 April 1996. In

view of the forthcoming expiry, respondent union sent a letter-proposal to petitioner FEU-NRMF stating their economic and non-economic proposals for the negotiation of the new CBA.

Petitioner FEU-NRMF rejected respondent union’s demands and proposed to maintain the same provisions of the old CBA reasoning that due to financial constraints, it cannot afford to accede to a number of their demands. In an effort to arrive at a compromise, subsequent conciliation proceedings were conducted before the NCMB, but the negotiation failed. Respondent union filed a Notice of Strike before NCMB on the ground of bargaining deadlock. Union staged a strike.

Petitioner FEU-NRMF filed a Petition for the Assumption of Jurisdiction or for Certification of Labor Dispute with the NLRC. Secretary of Labor granted the petition and an Order assuming jurisdiction over the labor dispute was issued, thereby prohibiting any strike or lockout and enjoining the parties from committing any acts which may exacerbate the situation.

Striking employees continued holding a strike, claiming that they had no knowledge that the Secretary of Labor already assumed jurisdiction over the pending labor dispute as they were not able to receive a copy of the AJO.

Secretary of Labor issued another Order directing all the striking employees to return to work and the petitioner FEU-NRMF to accept them under the same terms and conditions prevailing before the strike. A Return to Work Agreement was executed by the disputing parties.

Subsequently, petitioner FEU-NRMF filed a case before the NLRC, contending that respondent union staged the strike in defiance of the AJO, hence, it was illegal. LA declared the strike illegal and allowed dismissal of union officers for conducting the strike in defiance of the AJO. Respondent union filed an Appeal before the NLRC. NLRC affirmed in toto the Decision of the LA. Respondent union filed MR, it was denied. Respondent union brought a Petition for Certiorari before CA. CA granted the Petition and reversed the Resolutions of NLRC.

ISSUE: Whether the service of the AJO was validly effected by the process server so as to bind the respondent union and hold them liable for the acts committed subsequent to the issuance of the said Order.

RULING:

The process server resorted to posting the Order when personal service was rendered impossible since the striking employees were not present at the strike area. This mode of service, however, is not sanctioned by either the NLRC Revised Rules of Procedure or the Revised Rules of Court.

In the case at bar, presumption of receipt of the copies of the Assumption of Jurisdiction Order AJO could not be taken for granted considering the adverse effect in case the parties failed to heed to the injunction directed by such Order. Defiance of the assumption and return-to-work orders of the Secretary of Labor after he has assumed jurisdiction is a valid ground for the loss of employment status

of any striking union officer or member. Employment is a property right of which one cannot be deprived of without due process. Due process here would demand that the respondent union be properly notified of the Assumption of Jurisdiction Order of the Secretary of Labor enjoining the strike and requiring its members to return to work. Thus, there must be a clear and unmistakable proof that the requirements prescribed by the Rules in the manner of effecting personal or substituted service had been faithfully complied with.

Merely posting copies of the AJO does not satisfy the rigid requirement for proper service outlined by the above stated rules. Needless to say, the manner of service made by the process server was invalid and irregular. Respondent union could not therefore be adjudged to have defied the said Order since it was not properly apprised thereof. Accordingly, the strike conducted by the respondent union was valid under the circumstances.

NISSAN MOTORS PHILIPPINES,INC., Vs. SECRETARY OF LABOR AND EMPLOYMENT

 

FACTS:

 

A labor dispute between Nissan Motors Philippines, Inc. (Nissan Motors) and

BANAL-NMPI-OLALIA-KMU triggered by a collective bargaining deadlock

resulted in (1) the filing of four (4) notices of strike. The Department of Labor and

Employment (DOLE) issued an order assuming jurisdiction over the dispute. In it,

the DOLE Secretary expressly enjoined any strike or lockout and directed the

parties to cease and desist from committing any act that might exacerbate the

situation, and for the Union to refrain from engaging in any disruptive activity.

 Eventually, the DOLE Secretary issued a decision which contained names of union

officers and members whom Nissan Motors dismissed for defying the directives

contained in the assumption order.

The DOLE Secretary subsequently issued a resolution affirming with modification

its previous decision. The modification consisted in the deletion from the list of

dismissed Union officers the names of three (3) employees previously identified.

The CA, acting on the separate petitions for certiorari of Nissan Motors and the

Union, effectively affirmed the aforementioned decision, as modified, of the

DOLE Secretary.

ISSUES: Wheteher or not the decision of CA in reinstating some union members

after their previous dismissal is valid.

HELD:Yes. The Union engaged in work showdown which under the circumstances in which

they were undertaken constitute illegal strike. The company is therefore right in dismissing the

subject Unionofficers in accordance with Article 264 (a) of the Labor Code, for participating in

illegal strike in defiance of the assumption of jurisdiction order by the Labor Secretary.

However, the members of the Union should not be as severely punished. Dismissal is a harsh

penalty as surely they were only following orders from their officers. Besides, there is no

evidence that they engaged or participated in the commission of illegal activities during the said

strike. They should thus be reinstated to their former positions, but without back wages.

ARELLANO UNIVERSITY EMPLOYEES AND WORKERS UNION, et al. v. COURT OF APPEALS, et al. 502 SCRA 219 (2006), THIRD DIVISION (Carpio Morales, J.)

An ordinary striking worker may not be declared to have lost his employment status by mere participation in an illegal strike.

Facts: The Arellano University Employees and Workers Union (the Union), the exclusive bargaining representative of about 380 rank-and-file employees of Arellano University, Inc., filed with the National Conciliation and Mediation Board (NCMB) a Notice of Strike charging the University with Unfair Labor Practice (ULP). After several controversies and petitions, a strike was staged.Upon the lifting of the strike, the University filed a Petition to Declare the Strike Illegal before the NationalLabor Relations Commission (NLRC). The NLRC issued a Resolution holding that the University was not guilty of ULP. Consequently, the strike was declared illegal. All the employees who participated in the illegal strike were thereafter declared to have lost their employment status.

ISSUE:

Whether or not an employee is deemed to have lost his employment by mere participation in an illegal strike

HELD: Under Article 264 of the Labor Code, an ordinary striking worker may not be declared to have lost his employment status by mere participation in an illegal strike. There must be proof that he knowingly

participated in the commission of illegal acts during the strike. While the University adduced photographs showing strikers picketing outside the university premises, it failed to identify who they were. It thus failed to meet the substantiality of evidence test applicable in dismissal cases. With respect to the union officers, as already discussed, their mere participation in the illegal strike warrants their dismissal.

BILFLEX PHIL. INC. LABOR UNION et al. v. FILFLEX INDUSTRIAL ANDMANUFACTURING CORPORATION AND BILFLEX (PHILS.), INC.511 SCRA 247 (2006), THIRD DIVISION (Carpio Morales, J.)

Any union officer who knowingly participates in an illegal strike and any worker or union who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status.

Facts: Biflex Philippines Inc. Labor Union and Filflex Industrial and Manufacturing Labor Union are the respective collective bargaining agents of the employees of the sister companies Biflex and Filflex which are engaged in the garment business. They are situated in one big compound and they have a common entrance. The labor sector staged a welga ng bayan to protest against oil price hike; the unions staged a work stoppage which lasted for several days, prompting the companies to file a petition to declare the work stoppage illegal for failure to comply with procedural requirements. The Labor Arbiter held that the strike is illegal and declared the officers of the union to have lost their employment status.

ISSUE: Whether or not the staged strike is illegal and a ground for the lost of employment status of the union officers

HELD: Article 264 (a) of the Labor Code states that any union officer who knowingly participates in an illegal strike and any worker or union who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. Thus, a union officer may be declared to have lost his employment status if he knowingly participates in an illegal strike and in this case, the strike is declared illegal by the court because the means employed by the union are illegal. Here, the unions blocked the egress and ingress of the company premises thus, a violation of Article 264 (e)of the Labor Code which would affect the strike as illegal even if assuming arguendo that the unions had complied with legal formalities and thus, the termination of the employees was valid. The court said that the legality of a strike is determined not only by compliance with its legal formalities but also by means by which it is carried out.

SUKHOTHAI CUISINE and RESTAURANT vs. COURT OF APPEALS

G.R. No. 150437 July 17, 2006

FACTS: This case originated from a complaint for illegal strike filed with the NLRC by the petitioner against private respondents due to an alleged "wildcat strike" and other concerted action staged in the company premises. Private respondent Union filed a Notice of Strike with the National Conciliation and Mediation Board (NCMB) on the ground of unfair labor practice, and particularly, acts of harassment,

fault-finding, and union busting through coercion and interference with union affairs. In a conciliation conference, the representatives of the petitioner agreed and guaranteed that there will be no termination of the services of private respondents during the pendency of the case, with the reservation of the management prerogative to issue memos to erring employees for the infraction, or violation of company policies. The petitioner and the Union entered into a Submission Agreement, thereby agreeing to submit the issue of unfair labor practice – the subject matter of the foregoing Notice of Strike and the Strike Vote – for voluntary arbitration with a view to prevent the strike.

During the pendency of the voluntary arbitration proceedings, the petitioner terminated the employment of the union vice president and two other union members. Shortly thereafter, respondents staged a "wildcat strike."

The petitioner filed a complaint for illegal strike with the NLRC against private respondents, seeking to declare the strike illegal, and to declare respondents, who participated in the commission of illegal acts, to have lost their employment status.

ISSUE: Whether or not strike is illegal, hence private respondents have lost their employment status.

Held:Yes. Article 264 of the Labor Code provides: No strike or lockout shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. The alleged dismissals of the union members, which allegedly triggered the wildcat strike, are not sufficient grounds to justify the radical recourse on the part of the private respondents. Private respondents should have availed themselves of alternative remedies instead of resorting to a drastic and unlawful measure, specifically, the holding a wildcat strike and because of the fact that the Union was fully aware that the arbitration proceedings were pending, good faith cannot be invoked as a defense. For failing to exhaust all steps in the arbitration proceedings by virtue of the Submission Agreement, in view of the proscription under Article 264 of the Labor Code, and the prevailing state policy as well as its underlying rationale, this Court declares that the strike staged by the private respondents is illegal.

MANILA HOTEL EMPLOYEES ASSOCIATION and its members vs. MANILA HOTEL CORPORATION

G.R. No. 154591             March 5, 2007

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision,1dated 31 October 2001, promulgated by the Court of Appeals, affirming the Decision of the National Labor Relations Commission (NLRC), dated 5 April 2000, declaring that the strike held by the petitioner Manila Hotel Employees Association (MHEA), herein represented by Ferdinand Barles, is illegal. The Court of Appeals, in its assailed Decision, modified the Decision rendered by the NLRC and ruled that both incumbent officers and members of MHEA involved in the illegal strike lost their employment status.

MHEA filed a Notice of Strike with the National Conciliation and Mediation Board (NCMB) in against Manila Hotel on the grounds of unfair labor practices. Upon the petition of Manila Hotel, the Secretary of Labor and Employment (SOLE) certified the labor dispute to the NLRC for compulsory arbitration pursuant to Article 263(g) of the Labor Code. Specifically, the Order enjoined any strike or lockout and the parties were ordered to cease and desist from committing any acts that may exacerbate the situation. The parties and their counsels were served copies of the said Order. MHEA filed a Motion for Reconsideration assailing the validity of said Order. The case was set for mandatory conference. During the conference, the parties were advised of the certification order, which prohibited them from taking any action that would exacerbate the situation. However, MHEA subsequently conducted a strike despite the clear terms of the Order issued by the SOLE.

The NLRC issued an directing the striking workers to return to work immediately and the hotel to accept them back under the same terms and conditions of employment. The NLRC received a copy of the Compliance filed by Manila Hotel, manifesting that only six striking employees complied with the return-to-work Order and were reinstated. The other striking employees had openly defied the said Order.

The NLRC issued another, ordering MHEA to refrain from putting up a blockade or barricade or any mode of preventing the free ingress to and egress from the hotel. Parenthetically, it also ordered Manila Hotel to respect the right of the striking workers to peacefully picket in a designated area outside the hotel. Manila Hotel moved for the Reconsideration of the said Order on the ground that the picket, which they were ordered to respect, was an unlawful activity.

ISSUE: Whether or not the strike staged is illegal and as a consequence terminated the employment status of the employees.

HELD:Yes.

Aside from its procedural defects, the petition is also substantially infirm. MHEA members seek their reinstatement after participating in an illegal strike, that is,

a strike that was conducted after receiving an Order of assumption by the SOLE certifying the dispute to the NLRC for compulsory arbitration. Worse still, the

strikers failed to comply with the return-to-work Order, issued by the NLRC, despite receipt thereof.

The very nature of a return-to-work order issued in a certified case lends itself to no other construction. The certification attests to the urgency of the matter,

affecting as it does an industry indispensable to the national interest. The order is issued in the exercise of the court’s compulsory power of arbitration, and

therefore must be obeyed until set aside. To say that its effectivity must await affirmance on a motion for reconsideration is not only to emasculate it but

indeed to defeat its import, for by then the deadline fixed for the return to work would, in the ordinary course, have already passed and hence can no longer be

affirmed insofar as the time element it concerned.

The Court AFFIRMS the assailed Decision of the Court of Appeals, declaring the strike conducted by the MHEA as illegal and, thus, resulting in the loss of

employment status of the union officers and members who participated in the said strike.

Santa Rosa Coca Cola Plant Employee Union vs Coca Cola Bottlers Phils. Inc.

GR 164302-03

Facts: The Sta. Rosa Coca-Cola Plant Employees Union (Union) is the sole and exclusive bargaining representative of the regular daily paid workers and the monthly paid non-commission-earning employees of the Coca-Cola Bottlers Philippines, Inc. (Company) in its Sta. Rosa, Laguna plant. Upon the expiration of the CBA, the Union informed the Company of its desire to renegotiate its terms. No agreement was reached, thus, an impasse ensued. The Union filed a “Notice of Strike” with the NCMB. The Union officers and members held a picket along the front perimeter of the plant. All of the 14 personnel of the Engineering Section of the Company did not report for work, and 71 production personnel were also absent. As a result, only one of the three bottling lines operated during the day shift. The volume of production for the day was short by 60,000 physical cases versus budget. The Company filed a “Petition to Declare Strike Illegal”

Issue: WON the strike, dubbed by petitioner as picketing, is illegal.

Held: Article 212(o) of the Labor Code defines strike as a temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. In Bangalisan v. CA, the Court ruled that “the fact that the conventional term ‘strike’ was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation, and not its appearance, will be deemed to be controlling.” Picketing involves merely the marching to and fro at the premises of the employer, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. As applied to a labor dispute, to picket means the stationing of one or more persons to observe and attempt to observe. The purpose of pickets is said to be a means of

peaceable persuasion.

The basic elements of a strike are present in this case. They marched to and fro in front of the

company’s premises during working hours. Thus, petitioners engaged in a concerted activity

which already affected the company’s operations. The mass concerted activity constituted a

strike.

For a strike to be valid, the following procedural requisites provided by Art 263 of the Labor

Code must be observed: (a) a notice of strike filed with the DOLE 30 days before the intended

date thereof, or 15 days in case of unfair labor practice; (b) strike vote approved by a majority

of the total union membership in the bargaining unit concerned obtained by secret ballot in a

meeting called for that purpose, (c) notice given to the DOLE of the results of the voting at least

seven days before the intended strike. These requirements are mandatory and the failure of a

union to comply therewith renders the strike illegal. It is clear in this case that petitioners totally

ignored the statutory requirements and embarked on their illegal strike.

Petition denied.

TOYOTA MOTOR PHILS. CORP. WORKERS ASSOC. (TMPCWA) NLRC, TOYOTA MOTOR PHIL CORP et al

G.R. Nos. 158786 & 158789

October 19, 2007

FACTS: The Union filed a petition for certification election among the Toyota rank and file employees with the National Conciliation and Mediation Board (NCMB). The Med-Arbiter denied the petition, but, on appeal, the DOLE Secretary granted the Union’s prayer, and, through an Order, directed the immediate holding of the certification election.

After Toyota’s plea for reconsideration was denied, the certification election was conducted. The Med-Arbiter's Order certified the Union as the sole and exclusive bargaining agent of all the Toyota rank and file employees. Toyota challenged said Order via an appeal to the DOLE Secretary.

-STRIKE-

In the meantime, the Union submitted its CBA proposals to Toyota, but the latter refused to negotiate in view of its pending appeal. Consequently, the Union filed a notice of strike with the NCMB based on Toyota’s refusal to bargain. In connection with Toyota’s appeal, Toyota and the Union were required to attend a hearing on before the Bureau of Labor Relations (BLR). The February 21, 2001 hearing was cancelled and reset to February 22.

STRIKE 1: On February 21, 135 Union officers and members failed to render the required overtime work, and instead marched to and staged a picket in front of the BLR office. The Union, in a letter of the same date, also requested that its members be allowed to be absent on February 22 to attend the hearing and instead work on their next scheduled rest day. This request however was denied by Toyota.

Despite denial of the Union’s request, more than 200 employees staged mass actions on February 22 and 23 in front of the BLR and the DOLE offices, to protest the partisan and anti-union stance of Toyota. Due to the deliberate absence of a considerable number of employees on February 22 to 23, Toyota experienced acute lack of manpower in its manufacturing and production lines, and was unable to meet its production goals resulting in huge losses.

On February 27, Toyota sent individual letters to some 360 employees requiring them to explain within 24 hours why they should not be dismissed for their obstinate defiance of the company’s directive to render overtime work on February 21, for their failure to report for work on February 22 and 23, and for their participation in the concerted actions which severely disrupted and paralyzed the plant’s operations. These letters specifically cited Section D, paragraph 6 of the Company’s Code of Conduct, to wit:

xx

Inciting or participating in riots, disorders, alleged strikes, or concerted actions detrimental to [Toyota’s] interest.

1st offense – dismissal.11

xx

On the next day, the Union filed with the NCMB another notice of strike for union busting amounting to unfair labor practice.

On March 1, the Union nonetheless submitted an explanation in compliance with the February 27 notices sent by Toyota to the erring employees. Consequently, on March 2 and 5, Toyota issued 2 memoranda to the concerned employees to clarify whether or not they are adopting the March 1, 2001 Union’s explanation as their own. The employees were also required to attend an investigative interview, but they refused to do so.

On March 16, Toyota terminated the employment of 227 employees for participation in concerted actions in violation of its Code of Conduct and for misconduct under Article 282 of the Labor Code.

STRIKE 2: In reaction to the dismissal of its union members and officers, the Union went on strike on March 17. Subsequently, from March 28 to April 12, the Union intensified its strike by barricading the gates of Toyota’s Bicutan and Sta. Rosa plants. The strikers prevented workers who reported for work from entering the plants.

On March 29, Toyota filed a petition for injunction with a prayer for the issuance of a TRO with the NLRC. It sought free ingress to and egress from its Bicutan and Sta. Rosa manufacturing plants. Acting on said petition, the NLRC issued a TRO against the Union, ordering its leaders and members as well as its sympathizers to remove their barricades and all forms of obstruction to ensure free ingress to and egress from the company’s premises.

Meanwhile, Toyota filed a petition to declare the strike illegal with the NLRC arbitration branch, , and prayed that the erring Union officers, directors, and members be dismissed.

On April 10, the DOLE Secretary assumed jurisdiction over the labor dispute and issued an Order certifying the labor dispute to the NLRC. In said Order, the DOLE Secretary directed all striking workers to return to work at their regular shifts by April 16. On the other hand, it ordered Toyota to accept the returning employees under the same terms and conditions obtaining prior to the strike or at its option, put them under payroll reinstatement. The parties were also enjoined from committing acts that may worsen the situation.

The Union ended the strike on April 12. The union members and officers tried to return to work on April 16 but were told that Toyota opted for payroll-reinstatement authorized by the Order of the DOLE Secretary.

STRIKE 3: Meanwhile, on May 23, despite the issuance of the DOLE Secretary’s certification Order, several payroll-reinstated members of the Union staged a protest rally in front of Toyota’s Bicutan Plant

bearing placards and streamers in defiance of the April 10 Order. Then, on May 28, around Union members staged another protest action in front of the Bicutan Plant. At the same time, some payroll-reinstated employees picketed in front of the Santa Rosa Plant’s main entrance, and were later joined by other Union members.

On June 5, notwithstanding the certification Order, the Union filed another notice of strike.

--

In the meantime, the NLRC ordered both parties to submit their respective position papers on June 8. The union, however, requested for abeyance of the proceedings considering that there is a pending petition for certiorari with the CA assailing the validity of the DOLE Secretary’s Assumption of Jurisdiction Order.

Thereafter, on June 19, the NLRC issued an Order, reiterating its previous order for both parties to submit their respective position papers on or before June 2, 2001. Only Toyota submitted its position paper. During the August 3, 2001 hearing, the Union, despite several accommodations, still failed to submit its position paper. Later that day, the Union claimed it filed its position paper by registered mail.

NLRC decision

Subsequently, the NLRC, in its August 9 Decision, declared the strikes staged by the Union on February 21 to 23 (as the Union failed to comply with the procedural requirements of a valid strike under Art. 263 of the Labor Code) and May 23 and 28 as illegal and Declared that the dismissal of the 227 who participated in the illegal strike on February 21-23 is legal. Lastly, award of severance compensation was given to the dismissed Union members

After the DOLE Secretary assumed jurisdiction over the Toyota dispute on April 10, the Union again staged strikes on May 23 and 28. The NLRC found the strikes illegal as they violated Art. 264 of the Labor Code which proscribes any strike or lockout after jurisdiction is assumed over the dispute by the President or the DOLE Secretary.

The NLRC held that both parties must have maintained the status quo after the DOLE Secretary issued the assumption/certification Order, and ruled that the Union did not respect the DOLE Secretary’s directive.

Accordingly, both Toyota and the Union filed MRs, which the NLRC denied. Consequently, both parties questioned the Resolutions of the NLRC in separate petitions for certiorari filed with the CA. The CA then consolidated the petitions.

[In its February 27, 2003 Decision, the CA ruled that the Union’s petition is defective in form for its failure to append a proper verification and certificate of non-forum shopping, given that, out of the 227 petitioners, only 159 signed the verification and certificate of non-forum shopping. Despite the flaw, the CA proceeded to resolve the petitions on the merits and affirmed the assailed NLRC Decision and Resolution with a modification, however, of deleting the award of severance compensation to the

dismissed Union members.

However, in its June 20, 2003 Resolution, the CA modified its February 27, 2003 Decision by reinstating severance compensation to the dismissed employees based on social justice.]

ISSUE:

(1) Whether the mass actions committed by the Union on different occasions are illegal strikes; and

(2) Whether separation pay should be awarded to the Union members who participated in the illegal strikes.

HELD: WHEREFORE, the petitions in G.R. Nos. 158786 and 158789 are DENIED while those in G.R. Nos. 158798-99 are GRANTED.

The June 20, 2003 CA Resolution restoring the grant of severance compensation is ANNULLED and SET ASIDE.

The February 27, 2003 CA Decision which affirmed the August 9, 2001 Decision of the NLRC but deleted the grant of severance compensation, is REINSTATED and AFFIRMED.

1. YES, THERE IS ILLEGAL STRIKE

A strike means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. A labor dispute, in turn, includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of the employer and the employee

Noted authority on labor law, Ludwig Teller, lists six (6) categories of an illegal strike, viz:

(1) [when it] is contrary to a specific prohibition of law, such as strike by employees performing governmental functions; or

(2) [when it] violates a specific requirement of law[, such as Article 263 of the Labor Code on the requisites of a valid strike]; or

(3) [when it] is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against non-union employees; or

(4) [when it] employs unlawful means in the pursuit of its objective, such as a widespread terrorism of non-strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or

(5) [when it] is declared in violation of an existing injunction[, such as injunction, prohibition, or order issued by the DOLE Secretary and the NLRC under Art. 263 of the Labor Code]; or

(6) [when it] is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration

clause

Petitioner Union contends that the protests or rallies conducted on February 21 and 23 are not within the ambit of strikes as defined in the Labor Code, since they were legitimate exercises of their right to peaceably assemble and petition the government for redress of grievances. The Union’s position fails to convince us.

Applying pertinent legal provisions and jurisprudence, we rule that the protest actions undertaken by the Union officials and members on February 21 to 23 are not valid and proper exercises of their right to assemble and ask government for redress of their complaints, but are illegal strikes in breach of the Labor Code. The Union’s position is weakened by the lack of permit from the City of Manila to hold "rallies." Shrouded as demonstrations, they were in reality temporary stoppages of work perpetrated through the concerted action of the employees who deliberately failed to report for work on the convenient excuse that they will hold a rally at the BLR and DOLE offices on February 21 to 23. The purported reason for these protest actions was to safeguard their rights against any abuse which the med-arbiter may commit against their cause. However, the Union failed to advance convincing proof that the med-arbiter was biased against them. The acts of the med-arbiter in the performance of his duties are presumed regular. Sans ample evidence to the contrary, the Union was unable to justify the February 2001 mass actions. What comes to the fore is that the decision not to work for two days was designed and calculated to cripple the manufacturing arm of Toyota . It becomes obvious that the real and ultimate goal of the Union is to coerce Toyota to finally acknowledge the Union as the sole bargaining agent of the company. This is not a legal and valid exercise of the right of assembly and to demand redress of grievance.

It is obvious that the February 21 to 23 concerted actions were undertaken without satisfying the prerequisites for a valid strike under Art. 263 of the Labor Code . The Union failed to comply with the following requirements:

(1) a notice of strike filed with the DOLE 30 days before the intended date of strike, or 15 days in case of unfair labor practice;

(2) strike vote approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in a meeting called for that purpose; and

(3) notice given to the DOLE of the results of the voting at least seven days before the intended strike. These requirements are mandatory and the failure of a union to comply with them renders the strike illegal.

The evident intention of the law in requiring the strike notice and the strike-vote report is to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy objectives embodied in the law. As they failed to conform to the law, the strikes on February 21, 22, and 23 (STRIKE 1) were illegal.

With respect to the strikes committed from March 17 to April 12 (STRIKE 2), those were initially legal as

the legal requirements were met. However, on March 28 to April 12, the Union barricaded the gates of the Bicutan and Sta. Rosa plants and blocked the free ingress to and egress from the company premises. Toyota employees, customers, and other people having business with the company were intimidated and were refused entry to the plants. As earlier explained, these strikes were illegal because unlawful means were employed. The acts of the Union officers and members are in palpable violation of Art. 264(e), which proscribes acts of violence, coercion, or intimidation, or which obstruct the free ingress to and egress from the company premises. Undeniably, the strikes from March 28 to April 12 (STRIKE 2) were illegal.

Petitioner Union also posits that strikes were not committed on May 23 and 28 (STRIKE 3). The Union asserts that the rallies held on May 23 and 28 could not be considered strikes, as the participants were the dismissed employees who were on payroll reinstatement. It concludes that there was no work stoppage.

This contention has no basis. It is clear that once the DOLE Secretary assumes jurisdiction over the labor dispute and certifies the case for compulsory arbitration with the NLRC, the parties have to revert to the status quo ante (the state of things as it was before).

This was not heeded by the Union and the individual respondents who staged illegal concerted actions on May 23 and 28, in contravention of the Order of the DOLE Secretary that no acts should be undertaken by them to aggravate the "already deteriorated situation."

2. Anent the grant of severance compensation to legally dismissed union members:

The general rule is that when just causes for terminating the services of an employee under Art. 282 of the Labor Code exist, the employee is not entitled to separation pay.

As in any rule, there are exceptions. One exception where separation pay is given even though an employee is validly dismissed is when the court finds justification in applying the principle of social justice well entrenched in the 1987 Constitution. In one case, the Court laid down the rule that severance compensation shall be allowed only when the cause of the dismissal is other than serious misconduct or that which reflects adversely on the employee’s moral character.

Explicit in PLDT ase are two exceptions when the NLRC or the courts should not grant separation pay based on social justice:

1. serious misconduct (which is the first ground for dismissal under Art. 282) or

2. acts that reflect on the moral character of the employee.

Considering that the dismissal of the employees was due to their participation in the illegal strikes as well as violation of the Code of Conduct of the company, the same constitutes serious misconduct. A serious misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment.

Based on existing jurisprudence, the award of separation pay to the Union officials and members in the instant petitions cannot be sustained.

NOTES:

1. The Union contends that the NLRC violated its right to due process when it disregarded its position paper in deciding Toyota’s petition to declare the strike illegal.

We rule otherwise.

It is entirely the Union’s fault that its position paper was not considered by the NLRC. Records readily reveal that the NLRC was even too generous in affording due process to the Union. It issued no less than 3 orders for the parties to submit its position papers, which the Union ignored until the last minute. No sufficient justification was offered why the Union belatedly filed its position paper. In Datu Eduardo Ampo v. The Hon. Court of Appeals, it was explained that a party cannot complain of deprivation of due process if he was afforded an opportunity to participate in the proceedings but failed to do so. If he does not avail himself of the chance to be heard, then it is deemed waived or forfeited without violating the constitutional guarantee. Thus, there was no violation of the Union’s right to due process on the part of the NLRC.

2. CIVIL PROCEDURE GUYS! HEHE

On a procedural aspect, the Union faults the CA for treating its petition as an unsigned pleading and posits that the verification signed by 159 out of the 227 petitioners has already substantially complied with and satisfied the requirements under Secs. 4 and 5 of Rule 7 of the ROC.

The Union’s proposition is partly correct.

Sec. 4 of Rule 7 of the ROC states:

Sec. 4. Verification.—Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records.

A pleading required to be verified which contains a verification based on "information and belief" or upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned pleading.

The verification requirement is significant, as it is intended to secure an assurance that the allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation.30 This requirement is simply a condition affecting the form of pleadings, and noncompliance with the requirement does not necessarily render it fatally defective. Indeed, verification is only a formal and not a jurisdictional requirement.

In this case, the problem is not the absence but the adequacy of the Union’s verification, since only 159 out of the 227 petitioners executed the verification. Undeniably, the petition meets the requirement on the verification with respect to the 159 petitioners who executed the verification, attesting that they have sufficient knowledge of the truth and correctness of the allegations of the petition. However, their signatures cannot be considered as verification of the petition by the other 68 named petitioners unless the latter gave written authorization to the 159 petitioners to sign the verification on their behalf. Thus, in Loquias v. Office of the Ombudsman, we ruled that the petition satisfies the formal requirements only with regard to the petitioner who signed the petition but not his co-petitioner who did not sign nor authorize the other petitioner to sign it on his behalf. The proper ruling in this situation is to consider the petition as compliant with the formal requirements with respect to the parties who signed it and, therefore, can be given due course only with regard to them. The other petitioners who did not sign the verification and certificate against forum shopping cannot be recognized as petitioners have no legal standing before the Court. The petition should be dismissed outright with respect to the non-conforming petitioners.

In the case at bench, however, the CA, in the exercise of sound discretion, did not strictly apply the ruling in Loquias and instead proceeded to decide the case on the merits.

3. Union officers are liable for unlawful strikes or illegal acts during a strike. Art. 264(a) sanctions the dismissal of a union officer who knowingly participates in an illegal strike or who knowingly participates in the commission of illegal acts during a lawful strike.

4. The rule is well entrenched in this jurisdiction that factual findings of the labor tribunal, when affirmed by the appellate court, are generally accorded great respect, even finality

5. Member’s liability depends on participation in illegal acts. Art. 264(a) of the Labor Code provides that a member is liable when he knowingly participates in an illegal act "during a strike." While the provision is silent on whether the strike is legal or illegal, we find that the same is irrelevant.

Now, what are considered "illegal acts" under Art. 264(a)?

No precise meaning was given to the phrase "illegal acts." It may encompass a number of acts that violate existing labor or criminal laws, such as the following:

(1) Violation of Art. 264(e) of the Labor Code which provides that "[n]o person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares";

(2) Commission of crimes and other unlawful acts in carrying out the strike;54 and

(3) Violation of any order, prohibition, or injunction issued by the DOLE Secretary or NLRC in connection with the assumption of jurisdiction/certification Order under Art. 263(g) of the Labor Code.

As earlier explained, this enumeration is not exclusive and it may cover other breaches of existing laws.

However, There must be proof that he committed illegal acts during the strike and the striker who participated in the commission of illegal act[s] must be identified. But proof beyond reasonable doubt is not required. Substantial evidence available under the circumstances, which may justify the imposition of the penalty of dismissal, may suffice.

6. Noted labor law expert, Professor Cesario A. Azucena, Jr., traced the history relating to the liability of a union member in an illegal strike, starting with the "rule of vicarious liability," thus:

Under [the rule of vicarious liability], mere membership in a labor union serves as basis of liability for acts of individuals, or for a labor activity, done on behalf of the union. The union member is made liable on the theory that all the members are engaged in a general conspiracy, and the unlawful acts of the particular members are viewed as necessary incidents of the conspiracy. It has been said that in the absence of statute providing otherwise, the rule of vicarious liability applies.

Even the Industrial Peace Act, however, which was in effect from 1953 to 1974, did not adopt the vicarious liability concept. It expressly provided that:

No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute shall be held responsible or liable for the unlawful acts of individual officers, members, or agents, except upon proof of actual participation in, or actual authorization of, such acts or of ratifying of such acts after actual knowledge thereof.

Replacing the Industrial Peace Act, the Labor Code has not adopted the vicarious liability rule

G.R. No. 160058             June 22, 2007

PILIPINO TELEPHONE CORPORATION, petitioner, vs.PILIPINO TELEPHONE EMPLOYEES ASSOCIATION (PILTEA), PELAGIO S. BRIONES II, GEORGE L. DE LEON, LECEL M. FIDEL, AUGUSTO C. FRANCISCO, OLIVER B. ANTONIO, RONALDO B. CORONEL, CHRISTOPHER L. HERRERA and GEM TORRES, respondents.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 160094             June 22, 2007

PILIPINO TELEPHONE EMPLOYEES ASSOCIATION (PILTEA), PELAGIO S. BRIONES II, GEORGE L. DE LEON, and GEM TORRES, petitioners, vs.NATIONAL LABOR RELATIONS COMMISSION and PILIPINO TELEPHONE CORPORATION, respondents.

D E C I S I O N

PUNO, C.J.:

At bar are two consolidated petitions seeking review of the decision1 and resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 59799 which modified the decision3 of the National Labor Relations Commission (NLRC) by affirming the illegality of the strike conducted by Pilipino Telephone Employees Association (the Union) but reducing the penalty against union officers Pelagio S. Briones II, George De Leon, Lecel M. Fidel and Gem Torres from dismissal to suspension for six (6) months.

First, we unfurl the facts.

The Collective Bargaining Agreement (CBA) between the Union and Pilipino Telephone Corporation (the Company) was due to expire on December 31, 1997. On October 30, 1997, the Union submitted to the Company its proposals for the renegotiation of the non-representation aspects of their CBA. As there was a standstill on several issues, the parties submitted their dispute to the National Conciliation and Mediation Board (NCMB) for preventive mediation.4 The conciliation proceedings before the NCMB failed.

On July 13, 1998, the Union filed a Notice of Strike5 with the NCMB for unfair labor practice due to the alleged acts of "restraint and coercion of union members and interference with their right to self-organization" committed by the Company's Revenue Assurance Department (RAD) Manager Rosales and its Call Center Department Manager, Manny Alegado, to wit:

1. Requiring employees to execute undated resignation letters prior to regularization as a condition for continued employment.

2. Preventing employees from displaying Union flags and CBA's slogans.

3. Prohibiting employees from conducting and preventing employees from participating in Union activities.

4. Requiring employees to render forced overtime to prevent them from attending Union meetings and activities after office hours.

5. Using vulgar and insulting language such as "Kahit sa puwet n'yo isaksak ang mga banderang yan!"

6. Threatening employees who join concerted Union activities with disciplinary action.

7. Discouraging employees from participating in Union activities by branding the activities illegal and prohibited by law.

8. Abuse of Company Rules and Regulations to prevent the free exercise by the Union and its members of their right to self organization and free expression (e.g. issuing show cause memos for refusal to render overtime and vandalism).

9. Utilizing security guards to harass employees who participate in Union activities by requiring the guards to take down the names of employees who participate in the Union activities.6

The Company filed a petition for Consolidated Assumption of Jurisdiction with the Office of the Secretary of Labor. On August 14, 1998, then Secretary Bienvenido E. Laguesma issued an Order, the dispositive portion of which states:

WHEREFORE, premises considered, this Office hereby assumes jurisdiction over the entire labor disputeat Pilipino Telephone Corporation pursuant to Art. 263(g) of the Labor Code, as amended.

Accordingly, any strike or lockout, whether actual or intended, is hereby enjoined.

Furthermore, the parties are likewise directed to cease and desist from committing any or all acts that might exacerbate the situation.

To expedite the resolution of the dispute, the parties are hereby directed to file their respective position papers and documentary evidence within TEN (10) days from receipt of this Order.

SO ORDERED.7 (Emphases supplied.)

On September 4, 1998, the Union filed a second Notice of Strike8 with the NCMB on the grounds of: a) union busting, for the alleged refusal of the Company to turn over union funds; and b) the mass promotion of union members during the CBA negotiation, allegedly aimed at excluding them from the bargaining unit during the CBA negotiation. On the same day, the Union went on strike.

On September 9, 1998, Secretary Laguesma directed the striking Union officers and members to return to work within twenty-four (24) hours from receipt of the Order and for the Company to accept all strikers under the same terms and conditions of employment prior to the strike. The Union and its members complied.

On December 7, 1998, the Company filed with the NLRC a petition9 to declare the Union's September 4, 1998 strike illegal. On August 16, 1999, Labor Arbiter Aliman D. Mangandog issued a decision, the dispositive portion of which states:

WHEREFORE, premises considered, the September 4, 1998 strike conducted by PILTEA is declared illegal.

Accordingly, the following union officers of PILTEL/MKP, namely: George de Leon, Pelagio S. Briones, Nelson C. Pineda, Rolando U. Sta. Ana, Elna E. Escalante, Gem P. Torres, Ma. Rica D. Hilotin, Gerald Joseph P. Tayas, Lecel M. Fidel and Jose Rudylin R. Gamboa are declared to have lost their employment status.

While the following members, namely: Romeo Anonuevo, Jonathan Molaer, Cris Herrera, Edgar Alan Aquino, Aris Ablis, Dorothy Zulieta, Ronald Cornel, Arnel

Garcia, Ranelio Mendoza, Oliver Antonio, Alvin Usman, Augusto Francisco, Celia Mogol and Erlinda Madrid are hereby suspended for six (6) months without pay.

SO ORDERED.10

The Labor Arbiter found the strike illegal for having been conducted in defiance of Secretary Laguesma's August 14, 1998 assumption order and for non-compliance with the procedural requirements for the conduct of a strike under the Labor Code and its implementing rules. The Labor Arbiter cited Scholastica's College v. Ruben Torres11 which ruled that a strike undertaken despite the issuance of an assumption or certification order by the Secretary of Labor is a prohibited activity, hence, illegal under Article 264 of the Labor Code. He found that the grounds relied upon by the Union in its second notice of strike were substantially the same as those set forth in its first notice of strike. Moreover, he held that the Company's alleged refusal to turn over the checked-off union dues was not a strikeable issue as it was not a gross and blatant violation of the economic provisions of the CBA. He also held that the mass promotion of the Union's members was not tantamount to dismissal, hence, did not constitute union busting. The staging of the strike was likewise found to suffer from fatal procedural defects, to wit: a) the notice of strike was filed on the same day that the strike was conducted; b) the fifteen (15)-day cooling-off period was not observed; c) the Union failed to conduct a strike vote within the time prescribed by law; and d) the result of the strike vote was not furnished to the NCMB at least seven (7) days prior to the intended strike. Certain illegal acts were likewise found to have been committed during the strike, among which were the following: 1) striker Manny Costales prevented the Company's Director, Lilibeth Pasa, from entering the Bankers Centre Building; 2) union officers Judilyn Gamboa and Rolly Sta. Ana physically blocked the front entrance of the same building; 3) striker Aris Ablis drove a company vehicle and used it to block the driveway of PILTEL Centre II, thus, the cars inside the building were prevented from going out. The tires of said company vehicle were found deflated the following day; 4) strikers Dorothy Zulieta and Ronald Cornel prevented the Warehousing Manager assigned at the PILTEL Metropolitan Warehouse from going out of his office; 5) the strikers, led by Nelson Pineda, blocked the Detachment Supervisor of Protection Specialists and the uniformed company guards from delivering food to the non-striking employees trapped inside PILTEL Call Center at the Manila Memorial Park Building; 6) in General Santos City, some union members tied the entrance doors of the PILTEL Building and tied the company vehicles together; 7) Fe Carandang, Estrella Anonical, Zaldy Logos and Jovencio Laderas blocked the main entrance of the Boac, Marinduque office of the Company; 8) strikers Edna Carrion, Celia Mogol, Erlinda Madrid, Raul Montalan, Rolly Miraflor, Zaldy de Chavez and Dina Madla of the Company's office in Boac, Marinduque were also heard telling the Company's clients not to transact business with the company; and 9) strikers Zaldy Logos, Rizaldy de Chavez, Raul Montalan, Rolly Milaflor and Jovencio Laderas were seen preventing the free ingress and egress of the Company's office premises in Boac, Marinduque. The Labor Arbiter ruled that since the September 4, 1998 strike was illegal, the Union officers were deemed to have lost their employment status. He further ruled that the illegal acts committed during the strike were not serious enough to merit the dismissal of the erring Union members as they were merely acting at the order of their leaders. Hence, the erring union members were merely suspended for six (6) months.

On appeal, the NLRC affirmed the decision of the Labor Arbiter in toto.12 The Union, its dismissed officers and its suspended members filed a motion for reconsideration, to no avail.13

The Union, its officers Briones, De Leon, Fidel and Torres, and its members Francisco, Antonio, Coronel and Herrera filed a Petition for Certiorari under Rule 65 of the Rules of Court with the CA, attributing grave abuse of discretion amounting to excess of jurisdiction on the part of the NLRC.14 On September 20, 2002, the CA modified the ruling of the NLRC as follows:

WHEREFORE, the assailed decision of the NLRC dated February 29, 2000 is MODIFIED. Petitioners Pelagio S. Briones, George L. De Leon, Lecel M. Fidel and Gem Torres shall be suspended for six (6) months without pay instead of being dismissed. If already dismissed, petitioners shall be reinstated back to their former positions, or, if already filled, then to any other equal positions and shall be entitled to backwages computed from date of dismissal until date of actual reinstatement less the pay for the six (6) months suspension they were supposed to serve. The suspension of petitioners Augusto C. Francisco, Oliver B. Antonio, Ronaldo B. Coronel and Christopher L. Herrera for six (6) months without pay and the finding of illegality of the September 4, 1998 strike STANDS.

SO ORDERED.15

Both parties filed their respective partial motions for reconsideration - the company assailed the CA decision decreasing the penalty of the union officers while the Union and its dismissed officers assailed the decision declaring the strike illegal. Both motions were denied.16

Hence, the instant petitions.

In G.R. No. 160058, the Company raises the issue of:

[WHETHER] THE ASSAILED 20 SEPTEMBER 2002 DECISION AND 17 SEPTEMBER 2003 RESOLUTION OF THE COURT OF APPEALS ARE CONTRARY TO LAW AND JURISPRUDENCE.17

It prays that the September 20, 2002 Decision and September 17, 2003 Resolution of the CA be reversed in part and judgment be rendered affirming in toto the February 29, 2000 Decision of the NLRC.

In G.R. No. 160094, the Union and Union officers Briones, De Leon and Torres raise the issue of:

[WHETHER] THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN UPHOLDING NLRC'S FINDING THAT THE 4 SEPTEMBER 1998 STRIKE HELD BY PILTEA WAS ILLEGAL AS IT IS NOT IN ACCORDANCE WITH EXISTING LAW OR JURISPRUDENCE.18

They pray that this Court modify the September 20, 2002 Decision and September 17, 2003 Resolution of the CA and: a) declare the Union's September 4, 1998 strike as legal; b) nullify the six-month suspension imposed on Briones, De Leon and Torres; and c) order the Company to pay them backwages covering the period of their suspension.

The twin issues to be resolved are: a) the legality of the Union's strike and b) the penalty to be imposed on the Union officers, if any.

First, the legality of the strike.

The Union and its officers maintain that their September 4, 1998 strike was legal. They allege that the Company was guilty of union busting in promoting a substantial number of Union members and officers to positions outside the bargaining unit during the period of CBA negotiations. Allegedly, said Union members and officers maintained the same jobs and duties despite their promotion. They also capitalize on the CA's finding that the company was guilty of unfair labor practice in refusing to turn over the deducted contingency fees of the union members to the union. Citing Bacus v. Ople,19 Panay Electric Company v. NLRC20 and PNOC Dockyard and Engineering Corporation v. NLRC,21 they contend that this finding of unfair labor practice precludes the CA from ruling that the strike was illegal and that the Union was in bad faith in conducting the strike.

These arguments do not sway.

Article 263 of the Labor Code, as amended by Republic Act (R.A.) No. 6715,22 and Rule XXII, Book V of the Omnibus Rules Implementing the Labor Code outline the following procedural requirements for a valid strike:

1) A notice of strike, with the required contents, should be filed with the DOLE, specifically the Regional Branch of the NCMB, copy furnished the employer of the union;

2) A cooling-off period must be observed between the filing of notice and the actual execution of the strike thirty (30) days in case of bargaining deadlock and fifteen (15) days in case of unfair labor practice. However, in the case of union busting where the union's existence is threatened, the cooling-off period need not be observed.

xxx xxx xxx

4) Before a strike is actually commenced, a strike vote should be taken by secret balloting, with a 24-hour prior notice to NCMB. The decision to declare a strike requires the secret-ballot approval of majority of the total union membership in the bargaining unit concerned.

5) The result of the strike vote should be reported to the NCMB at least seven (7) days before the intended strike or lockout, subject to the cooling-off period.23

It is settled that these requirements are mandatory in nature and failure to comply therewith renders the strike illegal.24

In the case at bar, the Union staged the strike on the same day that it filed its second notice of strike. The Union violated the seven-day strike ban. This requirement should be observed to give the Department of Labor and Employment (DOLE) an opportunity to verify whether the projected strike really carries the approval of the majority of the union members. 25

Moreover, we agree with the CA that there was no union busting which would warrant the non-observance of the cooling-off period. To constitute union busting under Article 263 of the Labor Code, there must be: 1) a dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws; and 2) the existence of the union must be threatened by such dismissal. In the case at bar, the second notice of strike filed by the Union merely assailed the "mass promotion" of its officers and members during the CBA negotiations. Surely, promotion is different from dismissal. As observed by the Labor Arbiter:

x x x Neither does that (sic) PILTEL's promotion of some members of respondent union constitutes (sic) union busting which could be a valid subject of strike because they were not being dismissed. In fact, these promoted employees did not personally come forward to protest their promotion vis-à-vis their alleged option to remain in the union bargaining unit of the rank and filers.26

This is consistent with our ruling in Bulletin Publishing Corporation v. Sanchez27 that a promotion which is manifestly beneficial to an employee should not give rise to a gratuitous speculation that it was made to deprive the union of the membership of the benefited employee.

The contention of the Union and its officers that the finding of unfair labor practice by the CA precludes the ruling that the strike was illegal is unmeritorious. The refusal of the Company to turn over the deducted contingency funds to the union does not justify the disregard of the mandatory seven-day strike ban and the 15-day cooling-off period.

The Union's reliance on Bacus v. Ople,28 Panay Electric Company v. NLRC29 and PNOC Dockyard and Engineering Corporation v. NLRC30 is likewise unavailing.

Nowhere in Panay Electric Company and PNOC Dockyard and Engineering Corporation did the Court rule that the procedural requirements for a valid strike may be dispensed with if the striking workers believed in good faith that the company was committing acts of unfair labor practice. In both cases, the striking union members complied with the procedural requirements for a valid strike. It is correct that this Court, in Bacus, held that "a strike staged by the workers inspired by good faith does not automatically make the same illegal," but said case was decided before the effectivity of R.A. No. 6715 on March 21, 1989. We have ruled that with the enactment of R.A. No. 6715, the requirements as to the filing of a notice of strike, strike vote, and notice given to the DOLE are mandatory in nature.31

Moreover, we agree with the NLRC that the subject strike defied the assumption order of the Secretary of Labor. The NLRC correctly affirmed the Labor Arbiter that the second notice of strike was based on substantially the same grounds as the first notice of strike. The Union and its officers and members alleged that the mass promotion of the union officers and members and the non-remittance of the deducted contingency fees were the reasons for their concerted activities which annoyed the Company's RAD Manager and made him commit acts of unfair labor practice, eventually leading to the Union's filing of the first notice of strike. Clearly then, the issues which were made as grounds for the second notice of strike, viz, the mass promotion of the union members and officers and the non-remittance of the deducted contingency fees, were already existing when the Secretary of Labor assumed jurisdiction over the entire labor dispute between the Company and the Union on August 14, 1998.

Article 264 of the Labor Code provides:

Art. 264. Prohibited activities.—x x x

No strike or lockout shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.

Having settled that the subject strike was illegal, we shall now determine the proper penalty to be imposed on the union officers who knowingly participated in the strike.

Both the Labor Arbiter and the NLRC imposed the penalty of dismissal on the striking union officers after finding that: a) the strike was illegal for having been conducted in defiance of Secretary Laguesma's August 14, 1998 Order of assumption of jurisdiction and for non-compliance with the procedural requirements for the conduct of a strike under the Labor Code and its implementing rules; b) the grounds relied upon by the Union in its second notice of strike were substantially the same as those set forth in its first notice of strike; c) the Company's alleged refusal to turn over the checked-off union dues was not a strikeable issue as it was not a gross and blatant violation of the economic provisions of the CBA; d) the mass promotion of the Union's members was also not tantamount to dismissal, hence, did not constitute union busting; and e) certain illegal acts were found to have been committed during the strike.

On the other hand, the CA reduced the penalty of the union officers from dismissal to suspension for six months after finding that the "supreme penalty of dismissal" imposed on union officers Briones, De Leon, Fidel and Torres was "so harsh" considering that the Union did not defy the Secretary of Labor's Assumption Order and that the Company did not have "clean hands" when it filed the instant case for having committed an unfair labor practice by refusing to turn over the union dues to the Union.

We find that the CA committed a reversible error in modifying the rulings of the Labor Arbiter and the NLRC.

For a petition for certiorari under Rule 65 of the Rules of Court to prosper, the tribunal, board or officer exercising judicial or quasi-judicial functions must be proven to have acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction.32 "Grave abuse of discretion" has been defined as "a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough, it must be so grave as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."33

We note that although the CA modified the ruling of the NLRC, nowhere in its decision did it attribute grave abuse of discretion to the NLRC. And rightly so.

Article 264 of the Labor Code further provides:

Art. 264. Prohibited activities.— x x x

Any workers whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full back wages. Any union officer who knowingly participates in illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, that mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. x x x

We have explained the meaning of this provision as follows:

The effects of illegal strikes, as outlined in Article 264 of the Labor Code, make a distinction between ordinary workers and union officers who participate therein. Under established jurisprudence, a union officer may be terminated from employment for knowingly participating in an illegal strike. The fate of union members is different. Mere participation in an illegal strike is not a sufficient ground for termination of the services of the union members. The Labor Code protects ordinary, rank-and-file union members who participated in such a strike from losing their jobs provided that they did not commit illegal acts during the strike.34

In Gold City Integrated Port Service, Inc. v. NLRC,35 the Court held that "[t]he law, in using the word may,grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment." Thus, in a number of cases,36 proof that an employee who knowingly participated in an illegal strike is a union officer was enough to warrant his dismissal from employment.

This rule was relaxed in the case of PAL v. Brillantes37 where the Court "invoke[d] its judicial prerogative to resolve disputes in a way to render to each interested party the most judicious solution, and in the ultimate scheme, a resolution of a dispute tending to preserve the greater order of society." In said case, the Court dismissed the petition of PAL seeking the termination from employment of certain Union members and officers who staged a strike

in violation of the Secretary of Labor's return-to-work order. The Court found that both parties contributed to the volatile atmosphere that emerged despite the Secretary of Labor's status quo order as PAL terminated en masse the employment of 183 union officers and members. It noted the finding of the Acting Secretary of Labor that PAL "did not come to this office with 'clean hands' in seeking the termination of the officers and members of PALEA who participated in the 16 June 1994 strike."38

This Court exercised this judicial prerogative sparingly in Nissan Motors Philippines, Inc. v. Secretary of Labor.39 In said case, the Court also found Nissan equally guilty of exacerbating the situation after the assumption order of the Secretary for suspending a substantial number of Union officers and members with threat of eventual dismissal and perceived illegal lockout and union busting. However, while it affirmed the ruling of the Secretary of Labor suspending the union members who participated in the illegal strike, the Court sustained the dismissal of the union officers, viz:

While the employer is authorized to declare a union officer who participated in an illegal strike as having lost his employment, his/its option is not as wide with respect to union members or workers for the law itself draws a line and makes a distinction between union officers and members/ordinary workers. An ordinary striking worker or union member cannot, as a rule, be terminated for mere participation in an illegal strike; there must be proof that he committed illegal acts during the strike.40

The Court further explained the reason:

x x x Thus in Association of Independent Union in the Philippines vs. NLRC,41 we held that the responsibility of union officers, as main players in an illegal strike, is greater than that of the members and, therefore, limiting the penalty of dismissal only for the former for participation in an illegal strike is in order. Of the same tenor, albeit formulated a bit differently is our holding in Gold City Integrated Port Service, Inc. vs. NLRC.42 (Emphasis supplied.)

In the case at bar, we do not find any reason to deviate from our rulings in Gold City Integrated Port Service, Inc. and Nissan Motors Philippines, Inc. It bears emphasis that the strike staged by the Union in the instant case was illegal for its procedural infirmities and for defiance of the Secretary's assumption order. The CA, the NLRC and the Labor Arbiter were unanimous in finding that bad faith existed in the conduct of the subject strike. The relevant portion of the CA Decision states:

x x x We cannot go to the extent of ascribing good faith to the means taken in conducting the strike. The requirement of the law is simple, that is—1. Give a Notice of Strike; 2. Observe the cooling period; 3. Observe the mandatory seven day strike ban; 3. If the act is union busting, then the union may strike doing away with the cooling-off period, subject only to the seven-day strike ban. To be lawful, a strike must simply have a lawful purpose and should be executed through lawful means. Here, the union cannot claim good faith in the conduct of the strike because, as can be gleaned from the findings of the Labor Arbiter, this was an extensively coordinated strike having been conducted all through out the offices of PILTEL all over the country. Evidently, the strike was planned. Verily,

they cannot now come to court hiding behind the shield of "good faith." Be that as it may, petitioners claim good faith only in so far as their grounds for the strike but not on the conduct of the strike. Consequently, they still had to comply with the procedural requirements for a strike, which, in this case, they failed to do so.43

Thus, in imposing the penalty of dismissal, the NLRC correctly held:

x x x the point We wish to stress is that the [open, blatant] and willful defiance by the respondents of the Order emanating from the Secretary of Labor and Employment in this labor dispute only goes to show that the respondents have little or no regard at all for lawful orders from duly constituted authorities. For what their officers and members have suffered they have no one else to blame.44

It cannot be overemphasized that strike, as the most preeminent economic weapon of the workers to force management to agree to an equitable sharing of the joint product of labor and capital, exert some disquieting effects not only on the relationship between labor and management, but also on the general peace and progress of society and economic well-being of the State.45 This weapon is so critical that the law imposes the supreme penalty of dismissal on union officers who irresponsibly participate in an illegal strike and union members who commit unlawful acts during a strike. The responsibility of the union officers, as main players in an illegal strike, is greater than that of the members as the union officers have the duty to guide their members to respect the law.46The policy of the state is not to tolerate actions directed at the destabilization of the social order, where the relationship between labor and management has been endangered by abuse of one party's bargaining prerogative, to the extent of disregarding not only the direct order of the government to maintain the status quo, but the welfare of the entire workforce though they may not be involved in the dispute. The grave penalty of dismissal imposed on the guilty parties is a natural consequence, considering the interest of public welfare.47

IN VIEW WHEREOF, the petition in G.R. No. 160094 is DENIED. The petition in G.R. No. 160058 is GRANTED. The Decision and Resolution of the CA in CA-G.R. SP No. 59799 dated September 20, 2002 and September 17, 2003, respectively, are REVERSED and the Decision and Resolution of the NLRC dated February 29, 2000 and April 28, 2000, respectively, are REINSTATED.

SO ORDERED.

G & S TRANSPORT CORPORATION, G. R. No. 160303Petitioner,Present:QUISUMBING, J.,- versus - Chairperson,CARPIO,CARPIO MORALES,

TINGA, andTITO S. INFANTE, MELOR VELASCO, JR., JJ.BORBO, and DANILO CASTAEDA,Respondents.

Promulgated: September 13, 2007 x-----------------------------------------------------------------------------------------x  

D E C I S I O N  

TINGA, J.: 

This petition for review seeks the reversal of the decision[1] and resolution[2] of the

Court of Appeals in CA-G.R. SP No. 71472 dated 27 June 2003 and 8 October

2003, respectively. The assailed judgment reversed and set aside the decision[3] of

the National Labor Relations Commission (NLRC) which affirmed in toto the

decision of the Acting Executive Labor Arbiter for Adjudication Melquiades Sol

D. Del Rosario (Labor Arbiter) dated 31 May 1999. The Labor Arbiter had ordered

G & S Transport Corporation (petitioner) to pay respondents Tito Infante (Infante),

Melor Borbo (Borbo) and Danilo Castaeda (Castaeda) separation pay in lieu of

reinstatement without backwages.

 

Petitioner was the exclusive coupon taxi concessionaire at the Ninoy Aquino

International Airport (NAIA) from 1 February 1989 to31 January 1994 by virtue of

a five-year concession contract awarded by the Manila International Airport

Authority. Under the terms of the contract, the coupon taxi units assigned to

service arriving plane passengers would be dispatched from the garage located at

the Duty Free Compound opposite NAIA, whereas units assigned to service

departing plane passengers would be given their assignment by the garage

dispatcher via a two-way radio system on their way back to the garage after taking

arriving passengers to their destination.[4]

 

Respondents in the employ of petitioner had been drivers since 1 February

1989. At the time of their dismissal, they were assigned at

the Domestic Airport from 16 to 31 May 1990 on two (2) the shifts: morning shift

which starts from 7:00 a.m. to 4:00 p.m. and the afternoon shift from 4:00

p.m. to 1:00 a.m. Castaeda was assigned to the morning shift[5] while Infante and

Borbo were assigned to the afternoon shift.[6]

 

 

On 5 May 1990, petitioner claimed to have received from the NAIA Airport

Taxi Service Employees Union-TUPAS (Union) a letter-memorandum demanding

the dismissal from employment of Ricardo Gonzales (Gonzales) and Ephraim

Alzaga (Alzaga), both drivers of petitioner on the ground that they were found

guilty of committing acts of disloyalty, conduct unbecoming of a union member

and acts inimical to the interest of the Union. The Union based its action on a

petition filed by said employees calling for a local election. [7] On 9 May 1990, the

two employees were terminated by petitioner.[8]

 

Upon learning of the incident, several drivers of petitioner stopped driving

their taxi cabs apparently in sympathy with their dismissed colleagues. Petitioner

alleged that the work stoppage constituted an illegal strike at the work

premises. Furthermore, petitioner averred that various illegal acts, such as

stopping, barring and intimidating other employees wishing to enter the work

premises, were committed by the said drivers that resulted in the paralyzation of

petitioners business operation.[9]

 

Petitioner ordered the striking workers to return to work but some of the

drivers, including respondents, refused to do so. On22 May 1990, petitioner filed

an action for illegal strike before the Labor Arbiter against thirty-seven (37)

drivers. Two days later, said drivers filed a case for illegal dismissal against

petitioner.

 

In a Joint Affidavit dated 18 October 1990, Infante and Borbo denied joining

the alleged strike. They narrated that they reported to work at the domestic airport

on 16 May 1990 before 4:00 p.m. but did not find their taxi in the area. They

proceeded to the garage at the Duty Free shop. The dispatcher and the counter sales

clerk were likewise not around. Thereafter, they learned about the protest of their

co-workers over the dismissal of Gonzales and Alzaga. They soon found out that

the management had stopped company operation that afternoon but they stayed on

until 1:00 a.m. They did not report for work on the following day because it was

their day-off. On 18 May 1990, they did report for work but were refused entry by

the guard because their names did not appear on the list of drivers allowed by

petitioner to work on that day. They soon received a copy of the complaint filed by

petitioner charging them with illegal strike.[10]

 

Castaeda, in his Affidavit dated 17 March 1995, stated that he was on sick

leave from 11 to 15 May 1990. He reported for work on 16 May 1990 but was not

able to perform his duties because of the protest staged by his co-workers. He

reported back to work on the following day but he was not allowed entry by the

guard for having allegedly participated in the illegal strike.[11]

    

 

Out of the 37 complaining drivers, only seven remained as complainants

when the case reached the Labor Arbiter, namely: Gener Mendoza (Mendoza),

Eduardo Dacanay (Dacanay), Norman Sabiniano (Sabiniano), Mario Daramayo

(Daramayo), Borbo, Infante, and Castaeda. Others executed their respective

affidavits of desistance and filed the corresponding motion to dismiss.[12]On 31

May 1999, the Labor Arbiter declared respondents concerted action as a form of an

illegal strike, thus:

 Anent the issue of illegal strike, the records show that there was a

stoppage of work on May 16, 1990 at the premises of the garage of G &

S Transport located at the Duty Free Shop just fronting the Ninoy Aquino International Airport (NAIA), brought about primarily by the dismissal of Messrs. Gonzales and Alzaga, on the account of acts of [sic] [inimical] to the interest of G & S union. As pointed out by complainant G & S Transport, its Taxi drivers undertook those collective action without filing any notice of strike and taking a strike vote, and in violation of no strike-no lockout clause embodied in the CBA thus making their action as illegal activity.

 x x x x

 Actually when the stoppage of work occurred, there seemed to be

no labor disputes but merely a protest of the dismissal of respondents leaders. Under Article 212 (D) any temporary stoppage of work by the concerted action of employees must be a result of an industrial or labor dispute. No industrial or labor dispute, however, was existing on May 16, 1990, since there was no pending case in any legal forum then.[13]

 

 

 

 

 

 

However, finding that Mendoza, Dacanay and Sabiniano had not

participated in the strike, the Labor Arbiter declared their dismissal as illegal and

ordered petitioner to pay them backwages and separation pay, in lieu of

reinstatement, since petitioner had already stopped its operations on 31 January

1995. On the other hand, respondents Daramayo, Borbo, Infante and Castaeda,

though found to have participated in the illegal strike, were not meted out the

penalty of dismissal; instead, petitioner was ordered to pay them separation pay in

lieu of reinstatement but without backwages.[14]

 

On appeal, the NLRC affirmed in toto the ruling of the Labor Arbiter.

 

In a petition for certiorari before the Court of Appeals, respondents assailed

the NLRC decision affirming the Labor Arbiters findings: (1) that respondents had

joined the illegal strike; (2) that petitioner was no longer in operation and hence,

reinstatement could not be ordered; and (3) that respondents were not illegally

dismissed, but were not entitled to reinstatement and backwages.[15]

 

On 27 June 2003, the Court of Appeals reversed the decisions of the NLRC

and the Labor Arbiter, the dispositive portion of which reads:      WHEREFORE, based on the foregoing, the petition is GIVEN

DUE COURSE. The assailed Resolution and Order of the National Labor Relations Commission are ANNULLED and SET ASIDE. The matter is remanded to the Labor Arbiter for the computation of backwages and such other monetary benefits awarded in accordance with this Decision.[16]

  

 

The appellate court scored the Labor Arbiter because the latter failed to

categorically rule on the validity of respondents dismissal and instead stood

content in simply stating that respondents should not have been meted out the

severest penalty of dismissal for their inadequacies and wrongful actions. [17] The

appellate court went on to declare respondents dismissal as illegal. 

Relying on a certification from the Securities and Exchange Commission

(SEC) that petitioner was then still operational, the Court of Appeals further held

that the Labor Arbiter and the NLRC gravely abused their discretion in ordering

the grant of separation pay instead of reinstatement.[18]

 

Dissatisfied, petitioner filed a motion for reconsideration of the said

decision. On 8 October 2003, the Court of Appeals issued a resolution denying said

motion for lack of merit. [19]

 

    

In the instant petition, petitioner contends that the Court of Appeals erred

when it acted as a trier of facts and ordered the reinstatement of respondents and

payment of backwages.[20] Petitioner insists that the appellate court erroneously

substituted its decision with that of the Labor Arbiter, whose finding and

conclusion are in accordance with judicial precedents.[21] Petitioner reiterates that

extensive trial on the merits was held before the Labor Arbiter wherein the parties

had been afforded the opportunity to present their respective witnesses and

documentary evidence. Petitioner stresses that findings of the Labor Arbiter,

therefore, were all based on facts and substantial evidence.[22]

 

Respondents, for their part, argue that by virtue of the Courts

pronouncement in St. Martin Funeral Homes v. NLRC,[23] the Court of Appeals is

clothed with plenary authority to reverse the factual findings of the NLRC or other

quasi-judicial bodies particularly when the latters judgment is based on a

misapprehension of facts when it manifestly overlooked certain relevant facts,

which if properly considered would justify a different conclusion, or when it

erroneously misapplied a law as is obtaining in the case at bar.[24]

     

A petition for certiorari is available when any tribunal, board or officer

exercising judicial or quasi-judicial functions has acted without or in excess of its

or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of

jurisdiction. As a general rule, factual issues are not proper subjects for certiorari

which is limited to the issue of jurisdiction and grave abuse of discretion. [25] It does

not include an inquiry into the correctness of the evaluation of evidence which was

the basis of the labor agency in reaching its conclusion. Neither is it for the Court

of Appeals nor this Court to re-examine conflicting evidence, re-evaluate the

credibility of witnesses or substitute the findings of fact of an administrative body

which has gained expertise in its specialized field.[26]

 

One question therefore arisesdid the NLRC commit grave abuse of

discretion when it affirmed the findings of the Executive Labor Arbiter? While

only questions of law may be entertained by this Court through a petition for

review on certiorari, there are, however, well-recognized exceptions such as the

instant case where the factual findings of the NLRC and the Court of Appeals are

contradictory. A re-evaluation of the records of this case is necessary for its proper

resolution.[27]

 

 

 

The issues presented before the Executive Labor Arbiter and the NLRC are

the very same issues proffered by the parties before this Court, which may be

summed up as follows: (1) whether respondents participated in the illegal strike

and (2) whether the order for the payment of separation pay, in lieu of

reinstatement without backwages, is proper. 

Petitioner maintains that respondents knowingly and deliberately

participated in the illegal activities in the course of an illegal strike by the mere fact

that they resolutely defied the order directing them to report back to work and

continued to stay outside the premises, barricading the gates, heckling and

intimidating employees who were returning to work.[28]

 

Respondents however aver that there was no iota of evidence that would

show that they have trooped the line of the illegal strikers.[29] Assuming arguendo that they participated in the illegal strike, respondents

argue that they should not be dismissed because there was no proof that they

committed illegal acts during the strike.[30]

 

In its Reply, petitioner refutes respondents argument and submits that

evidence, such as photographs, affidavits of witnesses, and memoranda/telegrams,

were presented during trial to prove that respondents joined the illegal strike.

 

 

Article 212 of the Labor Code defines strike as any temporary stoppage of

work by the concerted action of employees as a result of an industrial or labor

dispute. A valid strike therefore presupposes the existence of a labor dispute. The

strike undertaken by respondents took the form of a sit-down strike, or more aptly

termed as a sympathetic strike, where the striking employees have no demands or

grievances of their own, but they strike for the purpose of directly or indirectly

aiding others, without direct relation to the advancement of the interest of the

strikers.[31] It is indubitable that an illegal strike in the form of a sit-down strike

occurred in petitioners premises, as a show of sympathy to the two employees who

were dismissed by petitioner. Apart from the allegations in its complaint for illegal

strike filed before the Labor Arbiter, petitioner presented the affidavits and

testimonies of their other employees which confirm the participation of

respondents in the illegal strike. Petitioner has sufficiently established that

respondents remained in the work premises in the guise of waiting for orders from

management to resume operations when, in fact, they were actively participating in

the illegal strike.

 

The office telegram sent to individual respondents informing them to return

to work went unheeded. Respondents failed to satisfactorily explain their

conspicuous absence following the day of the purported illegal strike. No record

whatsoever was presented by Borbo and Infante to prove that 17 May 1990 was

their day-off. It was convenient to pass the buck on petitioner by alleging that

proof of their alibi is in petitioners file.[32] Castaeda could not even present a sick

leave form to attest to his absence from 11-15 May 1990.[33] Moreover, the NLRC

and the Court of Appeals appeared unanimous in sustaining the findings of the

Labor Arbiter with respect to respondents participation in the illegal strike. The

appellate courts decision dwelt on the fact that no illegal activities were committed

by respondents in the course of the illegal strike, hence, reinstatement is proper.

 

Respondents participation in the illegal strike having been established, we

shall now determine the effects of their proscribed acts.

 

Article 264 of the Labor Code, in providing for the consequences of an

illegal strike, makes a distinction between union officers and members who

participated therein. Thus, knowingly participating in an illegal strike is a valid

ground for termination of employment of a union officer. The law, however, treats

differently mere union members. Mere participation in an illegal strike is not a

sufficient ground for termination of the services of the union members. 

The Labor Code protects an ordinary, rank-and-file union member who

participated in such a strike from losing his job, provided that he did not commit an

illegal act during the strike.[34] It can be gleaned from the aforecited provision of

law in point, however, that an ordinary striking employee cannot be terminated for

mere participation in an illegal strike. There must be proof that he committed

illegal acts during the strike and the striker who participated in the commission of

illegal act must be identified. Proof beyond reasonable doubt is not required.

Substantial evidence available under the attendant circumstances, which may

justify the imposition of the penalty of dismissal, may suffice.[35]

 

In the case at bar, this Court is not convinced that the affidavits of petitioners

witnesses constitute substantial evidence to establish that illegal acts were

committed by respondents. Nowhere in their affidavits did these witnesses cite the

particular illegal acts committed by each individual respondent during the strike.

Notably, no questions during the hearing were asked relative to the supposed

illegal acts.

 

Interestingly, the Labor Arbiter, the proximate trier of fact, also made no

mention of the supposed illegal acts in his decision, thus:

 As adverted to earlier, no matter by what term the respondents

complainants used in describing their concerted action, i.e. [,] protest, sympathy or mere expression, their joint action have successfully paralyzed the operations of G & S Transport, and this is considered a strike.

 If at all, what mitigates respondent action is their honest albeit

wrong belief that the course of action they have taken is correct because this is the only way they can show their oneness with their dismissed leaders. But as already held, their action is not the correctremedy because they failed to execute their course

  

of action within the ambit and parameters of the law. Respondents complainants should not have been meted out the severest penalty of dismissal for their inadequacies and wrongful action. Had G & S [T]ransport been still operational[,] the four respondents, namely[:] Melo Borbo, Tito Infante, Mario Daramayo and Danilo Castaeda, would have been ord[e]red to return to work sans backwages (the period of time that lapse without wages being considered as penalty). But since, the company is no longer operational, then in lieu of reinstatement, said complainants respondents should be paid a months salary per year of service, a fraction of six (6) months being considered one year.[36]

 

It can now therefore be concluded that the acts of respondents do not merit

their dismissal from employment because it has not been substantially proven that

they committed any illegal act while participating in the illegal strike. Petitioner,

however, disavows that it terminated respondents employment. It explained that by

filing a complaint for illegal strike before the NLRC, it was merely seeking a

declaration that respondents have lost their employment status.[37]

 

Respondents dismissal from work could not be any clearer than the refusal

of petitioner to admit them back as they signified their intention to go back to

work. In fact, this very act of petitioner precipitated respondents filing of a

complaint for illegal dismissal with a prayer for reinstatement.

 

With respect to backwages, the principle of a fair days wage for a fair days

labor remains as the basic factor in determining the award thereof. If there is no

work performed by the employee there

 

 

can be no wage or pay unless, of course, the laborer was able, willing and ready to

work but was illegally locked out, suspended or dismissed or otherwise illegally

prevented from working. While it was found that respondents expressed their

intention to report back to work, the latter exception cannot apply in this

case. In Philippine Marine Officers Guild v. Compaia Maritima,[38] as affirmed

in Philippine Diamond Hotel and Resort v. Manila Diamond Hotel Employees

Union,[39] the Court stressed that for this exception to apply, it is required that the

strike be legal, a situation that does not obtain in the case at bar.

 

Under the circumstances, respondents reinstatement without backwages

suffices for the appropriate relief. If reinstatement is no longer possible, given the

lapse of considerable time from the occurrence of the strike, the award of

separation pay of one (1) month salary for each year of service, in lieu of

reinstatement, is in order.

 

The Court of Appeals, in ordering reinstatement, relied on the SEC

certification that petitioner was then still operational, viz:  Petitioners in this petition attached a certification from the

Securities and Exchange Commission that private respondent is still operational as of August 6, 1999. Private respondent did not deny the certification. Since petitioners employment with private

 respondent was not conditional on private respondents concession at the NAIA, it is grave abuse of discretion for the Labor Arbiter and the NLRC to order the grant of separation pay instead of reinstatement.[40]

 

Petitioner asserts that the belated certification issued by the SEC bears no

value to respondents reinstatement because the employment of respondents was

conditioned on the subsistence of petitioners concession with NAIA but which had

already been terminated in 1995.[41]

 

Respondents counter that petitioner and Avis Coupon Taxi are one and the

same company and that it is of public knowledge that Avis Coupon Taxi still

continues to be the exclusive concessionaire of NAIA at that time. Moreover,

respondents deny that their employment was conditioned on petitioners concession

with NAIA.

 

The SEC has certified that G & S Transport Corporation was registered on 5

January 1972 for a period of fifty (50) years and as of 6 August 1999, no document

showing its dissolution had been filed.[42] Furthermore, the personnel manager of

petitioner verified that Avis Coupon Taxi and G & S Transport Corporation are

one and the same.[43] These documents pointedly indicate that petitioner has not

ceased operations. Petitioner cannot seek refuge behind the mere

assertion that respondents employment is conditioned on the five-year concession

with NAIA. No employment contract was presented to support such fact. Petitioner

in fact even admitted that it obtained another concession from NAIA in 2000.

 

It is of no moment that petitioners concession was no longer exclusive. No

evidence exists that the employment of respondents was in any way conditioned on

petitioners obstention of an exclusive contract from NAIA. The fact remains that

petitioner still operates a taxi concession in NAIA and that logically requires the

service of taxi drivers, the same position held by respondents back in 1990. Section

4, Rule I of the Rules Implementing Book VI of the Labor Code provides:

 SEC. 4.  Reinstatement to former position.(a) An employee who is separated from work without just cause shall be reinstated to his former position, unless such position no longer exists at the time of his reinstatement, in which case he shall be given a substantially equivalent position in the same establishment without loss of seniority rights. 

   

The above-quoted rule enunciates reinstatement as the standard

relief. However, in this case, seventeen (17) years have elapsed since respondents

were illegally dismissed. In Association of Independent Unions in the Philippines

v. NLRC [44], where more than eight (8) years have passed since the petitioners

therein staged an illegal strike and were found to have been unlawfully terminated,

an award of separation pay equivalent to one (1) month pay for every year of

service, in lieu of reinstatement, was deemed more practical and appropriate to all

the parties concerned. We adopt the same tack in this case.

 

In sum, the resolution and order of the NLRC, which adopted the findings of the

Labor Arbiter, are in accordance with law and jurisprudence. Consequently, the

Court of Appeals erred in granting respondents petition for certiorari, there being

no grave abuse of discretion on the part of the NLRC.  

WHEREFORE, the petition is GRANTED. The challenged Decision dated 27 June

2003 and Resolution dated 8 October 2003 of the Court of Appeals in CA-G.R. SP

No. 71472 are REVERSED AND SET ASIDE. The Decision dated 15 October

2001 of the NLRC, which affirmed that of the Labor Arbiter, is REINSTATED. SO ORDERED.

NATIONAL UNION OF WORKERS IN HOTELS, RESTAURANTS AND ALLIED INDUSTRIES- MANILA PAVILION HOTEL CHAPTER vs. SECRETARY OF LABOR AND EMPLOYMENTISSUE: Should employees on probationary status at the time of the certification elections be allowed to vote?DOCTRINE: As Airtime Specialists, Inc. v. Ferrer-Calleja holds:In a certification election, all rank and file employees in the appropriate bargaining unit, whether probationary or permanent are entitled to vote. This principle is clearly stated in Art. 255 of the Labor Code which states that the "labor organization designated or selected by the majority of the employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for purposes of collective bargaining." Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. Hence, all rank and file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as basis for eligibility in supporting the petition for certification election. The law refers to "all" the employees in the bargaining unit. All they need to be eligible to support the petition is to belong to the "bargaining unit."

Calamba Medical Center, Inc. vs National Labor Relations Commission

571 SCRA 585 – Labor Law – Labr Relations – Labor Standards – Strike

– Managerial Employees – Control – Illegal Dismissal

Ronaldo Lanzanas and Merceditha Lanzanas are doctors employed by Calamba

Medical Center, Inc. They are given a retainer’s fee by the hospital as well as shares

from fees obtained from patients.

One time, Ronaldo was overheard by Dr. Trinidad talking to another doctor about

how low the admission rate to the hospital is. That conversation was reported to Dr.

Desipeda who was then the Medical Director of the hospital.

Eventually Ronaldo was suspended. Ronaldo filed a case for Illegal Suspension in

March 1998. In the same month, the rank and file employees organized a strike

against the hospital for unfair labor practices. Desipeda eventually fired Ronaldo for

his alleged participation in the strike, which is not allowed under the Labor Code for

he is a managerial employee. Desipeda also fired Merceditha on the ground that she

is the wife of Ronaldo who naturally sympathizes with him.

The Labor Arbiter ruled that there was no Illegal Suspension for there was no

employer-employee relationship because the hospital has no control over Ronaldo

as he is a doctor who even gets shares from the hospitals earnings.

The National Labor Relations Commission as well as the Court of Appeals reversed

the LA.

ISSUE: Whether or not there is an employer-employee relationship?

HELD: Yes. Under the control test, an employment relationship exists between a

physician and a hospital if the hospital controls both the means and the details of the

process by which the physician is to accomplish his task. There is control in this

case because of the fact that Desipeda schedules the hours of work for Ronaldo and

his wife.

The doctors are also registered by the hospital under the SSS which is premised on

an employer-employee relationship.

There is Illegal Dismissal committed against Rolando for there was no notice and

hearing held. It was never shown that Rolando joined the strike. But even if he did,

he has the right to do so for he is not a part of the managerial or supervisory

employees. As a doctor, their decisions are still subject to revocation or revision by

Desipeda.

There is Illegal Dismissal committed against Merceditha for the ground therefor was

not mentioned in Article 282 of the Labor Code.

When is Control (One of the Four Tests of Employer-Employee Relationship)

Absent?

Where a person who works for another does so more or less at his own pleasure

and is not subject to definite hours or conditions of work, and is compensated

according to the result of his efforts and not the amount thereof, the element of

control is absent.

Jackbilt Industries, Inc. vs Jackbilt Employees Workers Union-NAFLU-KMU

Labor Law – Labor Relations – Illegal Strike

In 1997, Jackbilt Industries forced some of its employees to go on a six-month leave

as it was experiencing financial difficulties due to the 1997 financial crisis.

In March 1998, the Jackbilt Employees Workers Union staged a strike without

following the procedural requirements of Article 264 of the Labor Code.  During the

said strike, they prevented private vehicles from entering and exiting the premises of

Jackbilt.

Eventually in May 1998, Jackbilt dismissed employees who joined the strike.

In July 1998, the National Labor Relations Commission (NLRC) ruled that the March

1998 strike was illegal.

In October 1999, the Labor Arbiter ruled that Jackbilt is guilty of illegally dismissing

the striking employees on the ground that it terminated their services without first

petitioning for the declaration of illegal strike against the union (lack of due process).

ISSUE: Whether or not Jackbilt needs to have the union strike be declared illegal

first before dismissing the striking employees.

HELD: No. In the case at bar, there is already a finding by the NLRC in July 1998

that the March 1998 strike was illegal for it was attended by the use of illegal means

i.e. preventing vehicles from entering/exiting the Jackbilt premises. Such judgment is

conclusive upon the Labor Arbiter who issued the October 1999 decision. In short,

the filing of a petition to declare the strike illegal was unnecessary even though the

May 1998 dismissal actually came before the July 1998 NLRC declaration.

G.R. No. 164032 January 19, 2009LOLITA A. LOPEZ, et. al.

petitioner,vs.

QUEZON CITY SPORTS CLUB, INC.,

respondents.

FACTS:

The Kasapiang Manggagawa sa Quezon City Sports Club (union) averred that it wasordered to submit a new information sheet. It immediately wrote a letter addressed to thegeneral manager to inquire about the information sheet, only to be insulted by the latter. Themembers of the union were not paid their salaries on 30 June 1997. On 4 July 1997, the unionwrote a letter to the management for the release of the members’ salaries and grant of wageincreases mandated by the CBA. When its letter went unanswered, the union filed a notice of strike and fter conducting a strike vote, it staged a strike on 12 August 1997. On 16 August1997, the QCSC placed some of its employees under temporary lay-off status due toredundancy. The Kasapiang Manggagawa sa Quezon City Sports Club (union) filed a complaintfor unfair labor practice against QCSC on 12 November 1997. Labor Arbiter Joel S. Lustriapromulgated a decision finding QCSC guilty of unfair labor practice and ordering it to pay theaffected employees their separation pay, backwages, and salary increase, totalingP27,504,864.46. QCSC filed an appeal and a motion for reduction of the appeal bond toP4,000,000.00. NLRC ordered the posting of an additional P6,000,000.00 bond and rendered adecision granting the appeal and reversing the Lustria decision. Petitioners appealed to theCourt of Appeal but it was also denied.

ISSUE

: (1) Whether or not the simultaneous filing of the motion to reduce the appeal bond andposting of the reduced amount of bond within the reglementary period for appeal constitutesubstantial compliance with Article 223 of the Labor Code? (2) Whether or not the decision of the NLRC is valid?

HELD:

On the first issue, the Court ruled that the posting of the amount of P4,000,000.00simultaneously with the filing of the motion to reduce the bond to that amount, as well as thefiling of the memorandum of appeal, all within the reglementary period, altogether constitutesubstantial compliance with the Rules. it is provided on Article 223 of the Labor Code andSections 4(a) and 6 of Rule VI of the New Rules of Procedure of the NLRC, as amended, thatappeals involving monetary awards are perfected only upon compliance with the followingmandatory requisites, namely: (1) payment of the appeal fees; (2) filing of the memorandum of appeal; and (3) payment of the required cash or surety bond; and that no motion to reduce shallbe entertained except on meritorious grounds and upon the posting of a bond in a reasonableamount in relation to the monetary award. Furthermore, based on existing jurisprudence, thebond requirement on appeals involving monetary awards had been and could be relaxed inmeritorious cases such as: (1) there was substantial compliance with the Rules; (2) thesurrounding facts and circumstances constitute meritorious grounds to reduce the bond; (3) aliberal interpretation of the requirement of an appeal bond would serve the desired objective of resolving controversies on the merits; or (4) the appellants, at the very least, exhibited their willingness and/or good faith by posting a partial bond during the reglementary period.On the second issue, the Court ruled that the NLRC erred in setting aside the Lustria’s decision,as well as in deleting the award of backwages and separation pay, despite the finding that theaffected employees had been constructively dismissed. In the notice of strike, the union did notstate in particular the acts which allegedly constitute unfair labor practice. By virtue of the "no-strike no lockout" provision in the CBA, the union was prohibited from staging an economicstrike. However, while the strike by the union was held illegal, only the union officers weredeclared as having lost their employment status. In effect, the other union members who had merely participated in the strike but had not committed any illegal acts were not dismissed fromemployment. The grant of backwages and separation pay, in Lustria’s decision, not premised onthe

declaration of the illegality of the strike but on the finding that these affected employeeswere constructively dismissed from work, as evidenced by the layoffs effected by the company.Therefore, the Lustria decision should be upheld and therefore reinstated except as regards thefour petitioners who were declared having lost their employment status.

PHIMCO INDUSTRIES, INC. VS. PHIMCO INDUSTRIES LABOR ASSOCIATION (PILA) G.R. No. 170830, August 11, 2010 Ponente: J. Brion FACTS: PHIMCO Industries is engaged in production of matches while PILA is the ABU of daily paid workers. There ensued a bargaining deadlock between the company and union due to disagreements on salary increases and benefits. The union staged a strike which prompted the Secretary of Labor to assume jurisdiction over the case and later on issued a return to work order. The company after accepting its employees, terminated the services of 36 union members. Company also filed a complaint for illegal strike and claimed that strikers prevented egress and ingress from Phimco compound thereby paralyzing its operations. The Labor arbiter declared the strike illegal. The illegal dismissal case and illegal strike case were consolidated before the NLRC. The NLRC ruled in favor of the union which was later on upheld by the CA. The company assailed the decision of CA by way of petition for certiorari. The Union submitted that issues before the SC are factual in nature that cannot be touch in a petition for review.

ISSUE: What is the basic approach that should be followed in the review of decisions of Court of Appeals in labor cases? LAW: Rule 45 of the Rules of Court Rule 65 of the Rules of Court Citing the case of Montoya vs. Transmed Manila Corp. 597 SCA 334 (2009)

RULING: The Supreme Court has to view the decision of the Court of Appeals in the same context that the petition for certiorari it ruled upon was presented to it. The SC have to examine the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of whether the NLRC decision on the merits of the case was correct. In this case the decision of Labor Arbiter in declaring the strike is illegal was upheld by the SC but they were awarded with nominal damages in pursuant to Agabon Doctrine because they were not accorder with due process.

OPINION: I adhere to the approach laid down by the Supreme Court in reviewing decisions of the Court of Appeals in reviewing of labor cases. I agree that petition for review on certiorari before the CA, as governed by Rule 65 of the Rules of Court, is different from review on appeal and therefore the correct question to be answered by the CA is that “Did the NLRC gravely abuse its discretion in deciding the case?”. On appeal, the case is subject to review in the perspective that as if there is no decision previously rendered while if it is on review by Rule 65 of the Rules of Court, the decision will be premised on the findings on whether the NLRC committed grave abuse of discretion in deciding the case.

Escario vs NLRC (pero sa full text, it’s Olisa vs Escario)

G.R. No. 160302 September 27, 2010

FACTS: The petitioners were among the regular employees of respondent

Pinakamasarap Corporation (PINA), a corporation engaged in manufacturing and

selling food seasoning. They were members of petitioner Malayang Samahan ng

mga Manggagawa sa Balanced Foods (Union).

At 8:30 in the morning of March 13, 1993, all the officers and some 200 members

of the Union walked out of PINA’s premises and proceeded to the barangay office

to show support for an employee and officer of the union who was charged with

oral defamation by a manager of the company. All officers and members of the

union went back to work afterwards.

As a result of the walkout, PINA preventively suspended all officers of the Union

because of the March 13, 1993 incident. PINA terminated the officers of the Union

after a month.

On April 14, 1993, PINA filed a complaint for unfair labor practice (ULP) and

damages. LA ruled that the incident was an illegal walkout constituting ULP; and

that all the Union’s officers, except Cañete, had thereby lost their employment.

Union filed a notice of strike, claiming that PINA was guilty of union busting

through the constructive dismissal of its officers. Union held a strike vote, at which

a majority of 190 members of the Union voted to strike.

PINA retaliated by charging the petitioners with ULP and abandonment of work,

stating that they had violated provisions on strike of the collective bargaining

agreement (CBA).

On September 30, 1994, the Third Division of the National Labor Relations

Commission (NLRC) issued a temporary restraining order (TRO). On November

29, 1994, the NLRC granted the writ of preliminary injunction.

The LA rendered decision declaring the strike as illegal.

NLRC sustained, but held that there was no abandonment on the part of the

employees.

CA sustained the NLRC and explained that they were not entitled to full back

wages as only instance under Article 264 when a dismissed employee would be

reinstated with full backwages was when he was dismissed by reason of an illegal

lockout; that Article 264 was silent on the award of backwages to employees

participating in a lawful strike; and that a reinstatement with full backwages would

be granted only when the dismissal of the petitioners was not done in accordance

with Article 282 (dismissals with just causes) and Article 283 (dismissals with

authorized causes) of the Labor Code.

ISSUE: WON they are entitled to back wages during the illegal strike

HELD: Petitioners not entitled to backwages despite their reinstatement.

A fair day’s wage for a fair day’s labor.

Back-wages are not granted to employees participating in an illegal strike simply

accords with the reality that they do not render work for the employer during the

period of the illegal strike.

With respect to backwages, the principle of a "fair day’s wage for a fair day’s

labor" remains as the basic factor in determining the award thereof. If there is no

work performed by the employee there can be no wage or pay unless, of course,

the laborer was able, willing and ready to work but was illegally locked out,

suspended or dismissed or otherwise illegally prevented from working.

Under the principle of a fair day’s wage for a fair day’s labor, the petitioners were

not entitled to the wages during the period of the strike (even if the strike might be

legal), because they performed no work during the strike. Verily, it was neither fair

nor just that the dismissed employees should litigate against their employer on the

latter’s time.