Labor Relations

XI. Pages 546 to 618 (including Blockade or obstruction)

Cases:

• Work Stoppage as illegal strike

Santa Rosa Coca Cola Plant Employees Union, et. al. vs. Coca-cola Bottlers – January 25, 2007, 512 S 437

THIRD DIVISION

SANTA ROSA COCA-COLA G.R. Nos. 164302-03PLANT EMPLOYEESUNION, Donrico V. Sebastian,Eulogio G. Batino, Samuel A. Present:Atanque, Manolo C.Zabaljauregui, Dionisio Tenorio,Edwin P. Rellores, Luis B. YNARES-SANTIAGO, J.Natividad, Myrna Petingco, Chairperson,Feliciano Tolentino, Rodolfo A. AUSTRIA-MARTINEZ,Amante, Jr., Cipriano C. Bello, CALLEJO, SR., andRonaldo T. Espino, Efren Galan, CHICO-NAZARIO, JJ.and Jun Carmelito Santos,

Petitioners,Promulgated:

- versus -January 24, 2007

COCA-COLA BOTTLERSPHILS., INC.,Respondent.x-----------------------------------------------------------------------------------------x

D E C I S I O N

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. SP Nos. 74174 and 74860, which affirmed the ruling of

the National Labor Relations Commission (NLRC) in NLRC CA No. 030424-02,

and the Labor Arbiter in NLRC Case No. RAB-IV-10-11579-99-L.

The Antecedents

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. The individual petitioners are Union

officers, directors, and shop stewards.

The Union and the Company had entered into a three-year Collective

Bargaining Agreement (CBA) effective July 1, 1996 to expire on June 30, 1999.

Upon the expiration of the CBA, the Union informed the Company of its desire to

renegotiate its terms. The CBA meetings commenced on July 26, 1999, where

the Union and the Company discussed the ground rules of the negotiations.

The Union insisted that representatives from the Alyansa ng mga Unyon sa Coca-

Cola be allowed to sit down as observers in the CBA meetings. The Union officers

and members also insisted that their wages be based on their work shift rates. For

its part, the Company was of the view that the members of the Alyansa were not

members of the bargaining unit. The Alyansa was a mere aggregate of employees

of the Company in its various plants; and is not a registered labor

organization. Thus, an impasse ensued.[2]

On August 30, 1999, the Union, its officers, directors and six shop stewards

filed a Notice of Strike with the National Conciliation and Mediation Board

(NCMB) Regional Office in Southern Tagalog, Imus, Cavite. The petitioners relied

on two grounds: (a) deadlock on CBA ground rules; and (b) unfair labor practice

arising from the companys refusal to bargain. The case was docketed as NCMB-

RBIV-NS-08-046-99.[3]

The Company filed a Motion to Dismiss[4] alleging that the reasons cited by

the Union were not valid grounds for a strike. The Union then filed an Amended

Notice of Strike on September 17, 1999 on the following grounds: (a) unfair labor

practice for the companys refusal to bargain in good faith; and (b) interference with

the exercise of their right to self-organization.[5]

Meanwhile, on September 15, 1999, the Union decided to participate in a

mass action organized by the Alyansa ng mga Unyon sa Coca-Cola in front of the

Companys premises set for September 21, 1999. 106 Union members, officers and

members of the Board of Directors, and shop stewards, individually filed

applications for leave of absence for September 21, 1999. Certain that its

operations in the plant would come to a complete stop since there were no

sufficient trained contractual employees who would take over, the Company

disapproved all leave applications and notified the applicants accordingly.[6] A day

before the mass action, some Union members wore gears, red tag cloths stating

YES KAMI SA STRIKE as headgears and on the different parts of their uniform,

shoulders and chests.

The Office of the Mayor issued a permit to the Union, allowing it to conduct

a mass protest action within the perimeter of the Coca-Cola plant on September 21,

1999 from9:00 a.m. to 12:00 noon.[7] Thus, the Union officers and members held a

picket along the front perimeter of the plant on September 21, 1999. 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. All the three lines were operated during

the night shift with cumulative downtime of five (5) hours due to lack of manning,

complement and skills requirement. The volume of production for the day was

short by 60,000 physical case[s] versus budget.[8]

On October 13, 1999, the Company filed a Petition to Declare Strike

Illegal[9] alleging, inter alia, the following: there was a deadlock in the CBA

negotiations between the Union and Company, as a result of which a Notice of

Strike was filed by the Union; pending resolution of the Notice of Strike, the Union

members filed applications for leave on September 21, 1999 which were

disapproved because operations in the plant may be disrupted; on September 20,

1999, one day prior to the mass leave, the Union staged a protest action by wearing

red arm bands denouncing the alleged anti-labor practices of the company; on

September 21, 1999, without observing the requirements mandated by law, the

Union picketed the premises of the Company in clear violation of Article 262 of

the Labor Code; because of the slowdown in the work, the Company suffered

losses amounting to P2,733,366.29; the mass/protest action conducted on

September 21, 1999 was clearly a strike; since the Union did not observe the

requirements mandated by law, i.e., strike vote, cooling-off period and reporting

requirements, the strike was therefore illegal; the Union also violated the provision

of the CBA on the grievance machinery; there being a direct violation of the CBA,

the Unions action constituted an unfair labor practice; and the officers who

knowingly participated in the commission of illegal acts during the strike should be

declared to have lost their employment status. The Company prayed that judgment

be rendered as follows:1. Declaring the strike illegal;

2. Declaring the officers of respondent Union or the individual

respondents to have lost their employment status;

3. Declaring respondent Union, its officers and members guilty of unfair labor practice for violation of the CBA; and

4. Ordering the respondents to pay petitioner the following claims for

damages:

a. Actual Damages in the amount of P 4,733,366.29

b. Moral Damages in the amount of Five (5) Million Pesos; and c. Exemplary Damages in the amount of Two (2) Million Pesos.[10]

The Union filed an Answer with a Motion to Dismiss and/or to Suspend

Proceedings[11] alleging therein that the mass action conducted by its officers and

members on September 21, 1999 was not a strike but just a valid exercise of their

right to picket, which is part of the right of free expression as guaranteed by the

Constitution; several thousands of workers nationwide had launched similar mass

protest actions to demonstrate their continuing indignation over the ill effects of

martial rule in the Philippines.[12] It pointed out that even the officers and members

of the Alyansa ng mga Unyon sa Coca-Cola had similarly organized mass protest

actions. The Union insisted that officers and members filed their applications for

leave for September 21, 1999 knowing fully well that there were no bottling

operations scheduled on September 21 and 22, 1999; they even secured a Mayors

permit for the purpose. The workers, including the petitioners, merely marched to

and fro at the side of the highway near one of the gates of the Sta. Rosa Plant, the

loading bay for public vehicles. After 3 hours, everyone returned to work

according to their respective shifting schedules. The Union averred that the petition

filed by the Company was designed to harass and its officers and members in order

to weaken the Unions position in the on-going collective bargaining negotiations.

In a letter to the Union President dated October 26, 1999, the NCMB stated

that based on their allegations, the real issue between the parties was not the proper

subject of a strike, and should be the subject of peaceful and reasonable

dialogue. The NCMB recommended that the Notice of Strike of the Union be

converted into a preventive mediation case. After conciliation proceedings failed,

the parties were required to submit their respective position papers. [13] In the

meantime, the officers and directors of the Unionremained absent without the

requisite approved leaves. On October 11, 1999, they were required to submit their

explanations why they should not be declared AWOL.[14]

On November 26, 1999, the Labor Arbiter rendered a Decision[15] granting

the petition of the Company. He declared that the September 21, 1999 mass leave

was actually a strike under Article 212 of the Labor Code for the following

reasons: based on the reports submitted by the Production and Engineering

Department of the Company, there was a temporary work stoppage/slowdown in

the company;[16] out of the usual three (3) lines for production for the day shift,

only one line operated by probationary employees was functional and there was a

cumulative downtime of five (5) hours attributed to the lack of manning

complement and skills requirement. The Labor Arbiter further declared: x x x [T]he September 21, 1999 activity of the union and the individual

respondents herein fell within the foregoing definition of a strike. Firstly, the union itself had admitted the fact that on the date in question, respondent officers, together with their union members and supporters from the Alyansa ng mga Unyon sa Coca-Cola, did not report for their usual work. Instead, they all assembled in front of the Sta. Rosa Plant and picketed the premises. Very clearly, there was a concerted action here on the part of the respondents brought about a temporary stoppage of work at two out of three bottling lines at the Sta. Rosa Plant. According to Edwin Jaranilla, the Engineering Superintendent (Annex H, petition), all of his departments 14 engineering personnel did not report for work on September 21, 1999, and that only Line 2 operated on the day shift. Honorio Tacla, the Production Superintendent, testified (Annex H-1), that 71 production personnel were likewise absent from their respective work stations on September 21, 1999, and that only Line 2 operated on the day shift. Similarly, Federico Borja, Physical Distribution Superintendent, stated under oath (Annex H-2) that 12 personnel from his department did not report for work on September 21, 1999, and that no forklift servicing was done on Lines 1 and 3. From the foregoing testimonies, it is evident that respondents concerted activity resulted in a temporary stoppage of work at the Sta. Rosa Plant of the company. Thirdly, such concerted activity by respondents was by reason of a labor dispute. Earlier, the union had filed a Notice of Strike against the company on account of a disagreement with the latter regarding CBA ground rules, i.e., the demand of the Union for Alyansa members from other plants to attend as observers during the CBA negotiation, and for the members of the negotiating panel to be paid their wages based on their work shift rate. Moreover, on September 20, 1999, one day before respondents mass leave from work and concerted action, they had worn red tag cloth materials on different parts of their uniform which contained the words, YES kami sa strike; Protesta kami; Sahod, karapatan, manggagawa ipaglaban; and Union busting itigil. (Annexes G, G-1, G-2 & G-3). These indicated that the concerted action taken by respondents against CCBPI was a result of or on account of a labor dispute.[17]

According to the Labor Arbiter, the strike conducted by the Union was

illegal since there was no showing that the Union conducted a strike vote, observed

the prescribed cooling-off period, much less, submitted a strike vote to the DOLE

within the required time. Consequently, for knowingly participating in the illegal

strike, the individual petitioners were considered to have lost their employment

status.[18]

The Union appealed the decision to the NLRC. On July 31, 2002, the NLRC

affirmed the decision of the Labor Arbiter with the modification that Union

Treasurer Charlita M. Abrigo, who was on bereavement leave at the time, should

be excluded from the list of those who participated in the illegal strike. She was

thus ordered reinstated to her former position with full backwages and benefits.[19]

The Union and its officers, directors and the shop stewards, filed a petition

for certiorari in the CA. The case was docketed as CA-G.R. SP No.

74174. Another petition was filed by Ricky G. Ganarial and Almira Romo,

docketed as CA-G.R. SP No. 74860. The two cases were consolidated in the 6th

Division of the CA.

Petitioners alleged the following in their respective petitions:

ITHE NLRC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF JURISDICTION FOR HAVING DECLARED PETITIONERS TO HAVE LOST THEIR EMPLOYMENT WHEN FACTS WOULD SHOW PETITIONERS WERE NOT AFFORDED DUE PROCESS

II

THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DECLARING THE PEACEFUL PICKETING CONDUCTED BY THE UNION AS ILLEGAL STRIKE DESPITE ABSENCE OF SUBSTANTIAL EVIDENCE ON THE INTENT TO CREATE TEMPORARY WORK STOPPAGE

IIITHE NLRC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF JURISDICTION IN DECLARING THAT PETITIONERS HAVE LOST THEIR EMPLOYMENT FOR KNOWINGLY PARTICIPATING IN AN ILLEGAL STRIKE DESPITE THE FACT THAT PETITIONERS ARE NOT ELECTED OFFICERS OF THE UNION AND ARE MERE SHOP STEWARDS AND DESPITE THE FACT THAT THERE WAS NO PROOF THAT THEY COMMITTED ILLEGAL ACTS.[20]

The petitioners, likewise, raised the following, to wit: WHETHER OR NOT PUBLIC RESPONDENT NLRC HAS GRAVELY

ABUSED ITS DISCRETION AMOUNTING TO EXCESS OR LACK OF JURISDICTION IN AFFIRMING THE DECISION OF THE LABOR ARBITER A QUO WHO COMMITTED SERIOUS ERRORS IN HIS FINDINGS OF FACTS WHEN HE DECLARED THAT THE STRIKE CONDUCTED BY THE RESPONDENTS ON SEPTEMBER 21, 1999 IS ILLEGAL.

WHETHER OR NOT PUBLIC RESPONDENT NLRC HAS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO EXCESS OR LACK OF JURISDICTION IN AFFIRMING THE DECISION OF THE LABOR ARBITER A QUO WHO COMMITTED SERIOUS ERRORS IN HIS FINDINGS OF FACTS WHEN HE DECLARED THAT INDIVIDUAL RESPONDENTS (NOW PETITIONERS), INCLUDING SIX (6) UNION SHOP STEWARDS, ARE CONSIDERED TO HAVE LOST THEIR EMPLOYMENT STATUS (EXCEPT CHARLITA ABRIGO) FOR KNOWINGLY PARTICIPATING IN SAID ILLEGAL STRIKE.[21]

On September 10, 2003, the CA rendered judgment dismissing the petition

for lack of merit. It also declared that petitioners, in CA-G.R. SP No. 74860, were

guilty of forum shopping.

Petitioners filed a motion for reconsideration which the appellate court

denied; hence, the instant petition was filed based on the following grounds:(1) THE HONORABLE COURT OF APPEALS HAS GRAVELY

ABUSED ITS DISCRETION IN DISMISSING THE PETITION BEFORE IT FOR LACK OF MERIT WHEN IT IS CLEAR FROM THE EVIDENCE ON RECORD THAT THE SUBJECT MASS ACTION WAS A VALID EXERCISE OF THE WORKERS CONSTITUTIONAL RIGHT TO PICKET WHICH IS PART OF THE RIGHT TO FREE EXPRESSION.

(2) THE NLRC GRAVELY ABUSED ITS DISCRETION IN

AFFIRMING THE DECISION OF THE LABOR ARBITER A QUO WHEN IT CONCLUDED THAT AS ACONSEQUENCE OF THE ILLEGALITY OF THE STRIKE, THE DISMISSAL OF THE OFFICERS OF THE UNION IS JUSTIFIED AND VALID, IS NOT IN ACCORD WITH FACTS AND EVIDENCE ON RECORD.

(3) EVEN ASSUMING ARGUENDO THAT THE PROTEST MASS

ACTION STAGED BY PETITIONERS ON SEPTEMBER 21, 1999

CONSTITUTES A STRIKE, THE NLRC SERIOUSLY ERRED WHEN IT AFFIRMED THE LABOR ARBITERS DECISION DECLARING THE FORFEITURE OF EMPLOYMENT STATUS OF UNION OFFICERS AND SHOP STEWARDS (WHO HAVE NOT COMMITTED ANY ILLEGAL ACT DURING THE CONDUCT OF THE SAID MASS ACTION) FOR HAVING KNOWINGLY PARTICIPATED IN AN ILLEGAL STRIKE.[22]

The threshold issues in these cases are: (a) whether the September 21,

1999 mass action staged by the Union was a strike; (b) if, in the affirmative,

whether it was legal; and (c) whether the individual officers and shop stewards of

petitioner Union should be dismissed from their employment.

On the first and second issues, petitioners maintain that the September 21,

1999 mass protest action was not a strike but a picket, a valid exercise of their

constitutional right to free expression and assembly.[23] It was a peaceful mass

protest action to dramatize their legitimate grievances against respondent. They did

not intend to have a work stoppage since they knew beforehand that no bottling

operations were scheduled on September 21, 1999 pursuant to the Logistics

Planning Services Mega Manila Production Plan dated September 15, 1999.[24] Thus, they applied for leaves of absences for September 21, 1999 which,

however, were not approved. They also obtained a mayors permit to hold the

picket near the highway, and they faithfully complied with the conditions set

therein. The protesting workers were merely marching to and fro at the side of the

highway or the loading bay near one of the gates of the Company plant, certainly

not blocking in any way the ingress or egress from the Companys premises. Their

request to hold their activity was for four (4) hours, which was reduced to three (3)

hours. Thereafter, they all went back to work. The bottling operations of the

Company was not stopped, even temporarily. Since petitioner Union did not intend

to go on strike, there was no need to observe the mandatory legal requirements for

the conduct of a strike.

Petitioners also point out that members belonging to the IBM-KMU at the

San Fernando Coca-Cola bottling plant staged simultaneous walkout from their

work assignments for two consecutive days, on October 7 and 8, 1999. However,

the Secretary of Labor and Employment (SOLE) declared that the walkout was

considered a mass action, not a strike, and the officers of the IBM-KMU were only

meted a three-day suspension. Respondent accepted the decision of the SOLE and

no longer appealed the decision. Petitioners insist that this should, likewise, apply

in the resolution of the issue of whether petitioners staged a strike or not, and

whether the penalty of dismissal from the employment with the respondent is just

and equitable.

Petitioners also insist that they were denied the right to due process because

the decision of the Labor Arbiter was implemented even while their appeal was

pending in the NLRC. The decision of the Labor Arbiter against them was to

become final and executory only until after the NLRC shall have resolved their

appeal with finality.

On the third issue, petitioners aver that even assuming that they had indeed

staged a strike, the penalty of dismissal is too harsh. They insist that they acted in

good faith.Besides, under Article 264 of the Labor Code, the dismissal of the

Union officers who participated in an illegal strike is discretionary on the

employer. Moreover, six (6) of the petitioners were shop stewards who were mere

members of the Union and not officers thereof.

In its comment on the petition, respondent avers that the issues raised by

petitioners are factual; hence, inappropriate in a petition for review

on certiorari. Besides, the findings of the Labor Arbiter had been affirmed by the

NLRC and the CA, and are, thus, conclusive on this Court.

Respondent further avers that the law offers no discretion as to the proper

penalty that should be imposed against a Union official participating in an illegal

strike. Contrary to the contention of petitioners, shop stewards are also Union

officers. To support its claim, respondent cited Samahan ng Manggagawa sa

Moldex Products, Inc. v. National Labor Relations Commission,[25] International

Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v.

Hoffa;[26] and Coleman v. Brotherhood of Railway and Steamship Clerks, etc.[27]

The petition is denied for lack of merit.

The ruling of the CA that petitioners staged a strike on September 21, 1999,

and not merely a picket is correct.

It bears stressing that this is a finding made by the Labor Arbiter which was

affirmed by the NLRC[28] and the CA.[29] The settled rule is that the factual findings

and conclusions of tribunals, as long as they are based on substantial evidence, are

conclusive on this Court.[30] The raison detre is that quasi-judicial agencies, like

the Labor Arbiter and the NLRC, have acquired a unique expertise since their

jurisdictions are confined to specific matters. Besides, under Rule 45 of the Rules

of Court, the factual issues raised by the petitioner are inappropriate in a petition

for review on certiorari. Whether petitioners staged a strike or not is a factual

issue.

Petitioners failed to establish that the NLRC committed grave abuse of its

discretion amounting to excess or lack of jurisdiction in affirming the findings of

the Labor Arbiter that petitioners had indeed staged a strike.

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. InBangalisan v. Court of Appeals,[31] 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.[32] The term strike

encompasses not only concerted work stoppages, but also slowdowns, mass leaves,

sit-downs, attempts to damage, destroy or sabotage plant equipment and facilities,

and similar activities.[33]

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.[34] 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.[35]

A labor dispute 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 employer and employee.[36]

That there was a labor dispute between the parties, in this case, is not an

issue. Petitioners notified the respondent of their intention to stage a strike, and not

merely to picket. Petitioners insistence to stage a strike is

evident in the fact that an amended notice to strike was filed even as

respondent moved to dismiss the first notice. The basic elements of a strike are

present in this case: 106 members of petitioner Union, whose respective

applications for leave of absence on September 21, 1999 were disapproved, opted

not to report for work on said date, and gathered in front of the company premises

to hold a mass protest action. Petitioners deliberately absented themselves and

instead wore red ribbons, carried placards with slogans such as: YES KAMI SA

STRIKE, PROTESTA KAMI, SAHOD, KARAPATAN NG MANGGAGAWA

IPAGLABAN, CBA-WAG BABOYIN, STOP UNION BUSTING. They marched

to and fro in front of the companys premises during working hours. Thus,

petitioners engaged in a concerted activity which already affected the companys

operations. The mass concerted activity constituted a strike.

The bare fact that petitioners were given a Mayors permit is not conclusive

evidence that their action/activity did not amount to a strike. The Mayors

description of what activities petitioners were allowed to conduct is

inconsequential. To repeat, what is definitive of whether the action staged by

petitioners is a strike and not merely a picket is the totality of the circumstances

surrounding the situation.

A strike is the most powerful of the economic weapons of workers which

they unsheathe to force management to agree to an equitable sharing of the joint

product of labor and capital. It is a weapon that can either breathe life to or destroy

the Union and its members in their struggle with management for a more equitable

due to their labors.[37] The decision to declare a strike must therefore rest on a

rational basis, free from emotionalism, envisaged by the tempers and tantrums of a

few hot heads, and finally focused on the legitimate interests of the Union which

should not, however, be antithetical to the public welfare, and, to be valid, a strike

must be pursued within legal bounds. The right to strike as a means of attainment

of social justice is never meant to oppress or destroy the employer.[38]

Since strikes cause disparity effects not only on the relationship between

labor and management but also on the general peace and progress of society, the

law has provided limitations on the right to 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.[39] It is clear in this case that petitioners totally ignored the

statutory requirements and embarked on their illegal strike. We quote, with

approval, the ruling of the CA which affirmed the decisions of the NLRC and of

the Labor Arbiter:Since it becomes undisputed that the mass action was indeed a

strike, the next issue is to determine whether the same was legal or not. Records reveal that the said strike did not comply with the requirements of Article 263 (F) in relation to Article 264 of the Labor Code, which specifically provides, thus:

ART. 263. STRIKES, PICKETING, AND LOCKOUTS xxx xxx xxx xxx (f) A decision to declare a strike must be approved by a majority of

the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided.

ART. 264. PROHIBITED ACTIVITIES

(a) No labor organization or employer shall declare a strike or

lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry.

No strike or lockout shall be declared after assumption of

jurisdiction by the President or the Minister 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.

Any worker whose employment has been terminated as a

consequence or an unlawful lockout shall be entitled to reinstatement with full backwages. 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 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.

xxx xxx xxx xxx Applying the aforecited mandatory requirements to the case at

bench, the Labor Arbiter found, thus: In the present case, there is no evidence on record to show that

respondents had complied with the above mandatory requirements of law for a valid strike. Particularly, there is no showing that respondents had observed the prescribed cooling-off period, conducted a strike vote, much less submitted a strike vote report to the Department of Labor within the required time. This being the case, respondents strike on September 21, 1999 is illegal. In the recent case of CCBPI Postmix Workers Union vs. NLRC, 2999 (sic) SCRA 410, the Supreme Court had said: It bears stressing that the strike requirements under Article 264 and 265 of the Labor Code are mandatory requisites, without which, the strike will be considered illegal. The evidence (sic) intention of the law in requiring the strike notice and strike-vote report as mandatory requirements is to reasonably regulate the right to strike which is essential to the attainment of legitimate policy objectives embodied in the law. Verily, substantial compliance with a mandatory provision will not suffice. Strict adherence to the mandate of the law is required.

Aside from the above infirmity, the strike staged by respondents was, further, in violation of the CBA which stipulated under Section 1, Article VI, thereof that,

SECTION 1. The UNION agrees that there shall be no strike,

walkout, stoppage or slowdown of work, boycott, secondary boycott, refusal to handle any merchandise, picketing, sitdown strikes of any kind, sympathetic or general strike, or any other interference with any of the operations of the COMPANY during the term of this Agreement, so long as the grievance procedure for which provision is made herein is followed by the COMPANY. Here, it is not disputed that respondents had not referred their

issues to the grievance machinery as a prior step. Instead, they chose to go on strike right away, thereby bypassing the required grievance procedure dictated by the CBA.[40]

On the second and third issues, the ruling of the CA affirming the decisions

of the NLRC and the Labor Arbiter ordering the dismissal of the petitioners-

officers, directors and shop stewards of petitioner Union is correct.

It bears stressing, however, that the law makes a distinction between union

members and union officers. A worker merely participating in an illegal strike may

not be terminated from employment. It is only when he commits illegal acts during

a strike that he may be declared to have lost employment status.[41] For knowingly

participating in an illegal strike or participates in the commission of illegal acts

during a strike, the law provides that a union officer may be terminated from

employment.[42] The law grants the employer the option of declaring a union officer

who participated in an illegal strike as having lost his employment. It possesses the

right and prerogative to terminate the union officers from service.[43]

We quote, with approval, the following ruling of the Court of Appeals: As to the imposition of the penalty provided for should an illegal strike be

declared as such, We find no legal or factual reason to digress from the following disquisition of the Labor Arbiter, to wit:

No doubt, the strike conducted by respondents on September 21, 1999 is illegal. Under Article 264(a) of the Labor Code, it is stated that, Any union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. xxx. In the present case, CCBPI had already promptly notified respondents and their members of the disapproval of their leave. In fact, in the company notice (of the disapproval of their leave), CCBPI emphasized that operations will come to a complete stop on September 21, 1999 if all the applications are approved. They were further informed that, there are no sufficiently trained contractual employees who can take over as replacements on that day (Annexes C, C-1 to C-18). In other words, respondents had known beforehand that their planned mass leave would definitely result in a stoppage of the operations of the company for September 21, 1999.Still, respondents knowingly and deliberately proceeded with their mass action, unmindful of the ill effects thereof on the business operations of the company. In the case of Association of Independent Unions in the Philippines v. NLRC, 305 SCRA 219, the Supreme Court had ruled that,

Union officers are duty-bound to guide their members to

respect the law. If instead of doing so, the officers urge the members to violate the law and defy the duly constituted authorities, their dismissal from the service is just penalty or sanction for their unlawful acts. The officers responsibility is greater than that of the members. Here, the law required respondents to follow a set of mandatory

procedures before they could go on with their strike. But obviously, rather than call on their members to comply therewith, respondents were the first ones to violate the same.[44]

Petitioners cannot find solace in the Order of the Secretary of Labor and

Employment (SOLE) in OS-A-J-0033-99, NCMB-RB 111-NS-10-44-99 and 11-

51-99 involving the labor dispute between the Company and the Union therein (the

Ilaw at Buklod ng Manggagawa Local No. 1, representing the daily paid rank and

file members of the respondent, as well as the plant-based route helpers and drivers

at its San Fernando Plant). In said case, the SOLE found that the simultaneous

walkout staged on October 7 and 8, 1999 was indeed a mass action, initiated by the

Union leaders. The acts of the Union leaders were, however, found to be illegal

which warranted their dismissal, were it not for the presence of mitigating factors,

i.e., the walkout was staged in support of their leaders in the course of the CBA

negotiation which was pending for more than nine (9) months; the Plant was not

fully disrupted as the Company was able to operate despite the severe action of the

Union members, with the employment of casual and contractual workers; the

Union had complied with the requirements of a strike and refrained from staging

an actual strike.[45]

Neither can the petitioners find refuge in the rulings of this Court in Panay

Electric Company v. NLRC[46] or in Lapanday Workers Union v. NLRC.[47] In

the Panay case, the Court meted the suspension of the union officers, instead of

terminating their employment status since the NLRC found no sufficient proof of

bad faith on the part of the union officers who took part in the strike to protest the

dismissal of their fellow worker, Enrique Huyan which was found to be

illegal. In Lapanday, the Court actually affirmed the dismissal of the union officers

who could not claim good faith to exculpate themselves. The officers, in fact,

admitted knowledge of the law on strike, including its procedure in conducting the

same. The Court held that the officers cannot violate the law which was designed

to promote their interests.

Finally, the contention of petitioners Elenette Moises, Almira Romo, Louie

Labayani, Ricky Ganarial, Efren Galan and Jun Carmelito Santos who were

appointed as shop stewards of the Union that they were mere members and not the

officers of petitioner Union is barren of merit.

We agree with the observation of respondent that under Section 501(a) and

(b) of the Landrum Griffin Act of 1959,[48] shop stewards are officers of the Union:Sec. 501 (a) The officers, agents, shop stewards, and other representatives

of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws and any resolutions of the governing bodies adopted thereunder, to refrain from dealing with such organization as an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest

which conflicts with the interest of such organization, and to account to the organization for any profit received by him in whatever capacity in connection with transactions conducted by him or under his direction on behalf of the organization. A general exculpatory resolution of a governing body purporting to relieve any such person of liability for breach of the duties declared by this section shall be void as against public policy.

(b) When any officer, agent, shop steward, or representative of any labor organization is alleged to have violated the duties declared in subsection (a) of this section and the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer, agent, shop steward, or representative in any district court of the United States or in any State court of competent jurisdiction to recover damages or secure an accounting or other appropriate relief for the benefit of the labor organization.[49]

Under said Act, Section 3(q) thereof provides, as follows: (q) Officer, agent, shop steward, or other representative, when used with respect to a labor organization, includes elected officials and key administrative personnel, whether elected or appointed (such as business agents, heads of departments or major units, and organizers who exercise substantial independent authority), but does not include salaried non-supervisory professional staff, stenographic, and service personnel.[50]

Admittedly, there is no similar provision in the Labor Code of

the Philippines; nonetheless, petitioners who are shop stewards are considered

union officers.

Officers normally mean those who hold defined offices. An officer is any person

occupying a position identified as an office. An office may be provided in the

constitution of a labor union or by the union itself in its CBA with the employer.

An office is a word of familiar usage and should be construed according to the

sense of the thing.[51]

Irrefragably, under its Constitution and By-Laws, petitioner Union has principal

officers and subordinate officers, who are either elected by its members, or

appointed by its president, including the standing committees each to be headed by

a member of the Board of Directors. Thus, under Section 1, Article VI of

petitioner Unions Constitution and By-Laws, the principal officers and other

officers, as well as their functions/duties and terms of office, are as follows:

ARTICLE VIPRINCIPAL OFFICERS

SECTION 1. The governing body of the UNION shall be the following

officers who shall be elected through secret ballot by the general membership: President AuditorVice-President two (2) Public Relations OfficerSecretary Sergeant-at-ArmsTreasurer Board of Directors nine (9) SECTION 2. The above officers shall administer Unions affairs, formulate

policies and implement programs to effectively carry out the objectives of the UNION and the Labor Code of the Philippines and manage all the monies and property of the UNION.

SECTION 3. The officers of the UNION and the members of the Board of

Directors shall hold office for a period of five (5) years from the date of their election until their successors shall have been duly elected and qualified; provided that they remain members of the UNION in good standing.[52]

Section 6, Article II of the CBA of petitioner Union and respondent defines

the position of shop steward, thus: SECTION 6. Shop Stewards. The UNION shall certify a total of eight (8)

shop stewards and shall inform management of the distribution of these stewards among the departments concerned.

Shop Stewards, union officers and members or employees shall not lose

pay for attending Union-Management Labor dialogues, investigations and grievance meetings with management.[53]

Section 6, Rule XIX of the Implementing Rules of Book V of the Labor Code

mentions the functions and duties of shop stewards, as follows:

Section 2. Procedures in handling grievances. In the absence of a specific provision in the collective bargaining agreement prescribing for the procedures in handling grievance, the following shall apply: (a) An employee shall present this grievance or complaint orally or in writing to the shop steward. Upon receipt thereof, the shop steward shall verify the facts and determine whether or not the grievance is valid. (b) If the grievance is valid, the shop steward shall immediately bring the complaint to the employees immediate supervisor. The shop steward, the employee and his immediate supervisor shall exert efforts to settle the grievance at their level.

(c) If no settlement is reached, the grievance shall be referred to the grievance committee which shall have ten (10) days to decide the case. Where the issue involves or arises from the interpretation or implementation of a provision in the collective bargaining agreement, or from any order, memorandum, circular or assignment issued by the appropriate authority in the establishment, and such issue cannot be resolved at the level of the shop steward or the supervisor, the same may be referred immediately to the grievance committee. All grievance unsettled or unresolved within seven (7) calendar days from the date of its submission to the last step in the grievance machinery shall automatically be referred to a voluntary arbitrator chosen in accordance with the provisions of the collective bargaining agreement, or in the absence of such provisions, by mutual agreement of the parties.[54]

Thus, a shop steward is appointed by the Union in a shop, department, or

plant serves as representative of the Union, charged with negotiating and

adjustment of grievances of employees with the supervisor of the employer. [55] He

is the representative of the Union members in a building or other workplace.

Blacks Law Dictionary defines a shop steward as a union official who represents

members in a particular department. His duties include the conduct of initial

negotiations for settlement of grievances.[56] He

is to help other members when they have concerns with the employer or other

work-related issues. He is the first person that workers turn to for assistance or

information. If someone has a problem at work, the steward will help them sort it

out or, if necessary, help them file a complaint.[57] In the performance of his duties,

he has to take cognizance of and resolve, in the first instance, the grievances of the

members of the Union. He is empowered to decide for himself whether the

grievance or complaint of a member of the petitioner Union is valid, and if valid, to

resolve the same with the supervisor failing which, the matter would be elevated to

the Grievance Committee.

It is quite clear that the jurisdiction of shop stewards and the supervisors

includes the determination of the issues arising from the interpretation or even

implementation of a provision of the CBA, or from any order or memorandum,

circular or assignments issued by the appropriate authority in the establishment. In

fine, they are part and parcel of the continuous process of grievance resolution

designed to preserve and maintain peace among the employees and their

employer. They occupy positions of trust and laden with awesome responsibilities.

In this case, instead of playing the role of peacemakers and grievance

solvers, the petitioners-shop stewards participated in the strike. Thus, like the

officers and directors of petitioner Union who joined the strike, petitioners-shop

stewards also deserve the penalty of dismissal from their employment.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack

of merit. The Decision of the Court of Appeals is AFFIRMED. No costs. SO ORDERED.

• Effect of Illegal strike to Union Members and Officers

Visayas Community Medical Center vs. Yballe, et al.G.R. No. 196156, January 15, 2014

Republic of the PhilippinesSUPREME COURTManila

SPECIAL FIRST DIVISION

G.R. No. 196156 January 15, 2014

VISAYAS COMMUNITY MEDICAL CENTER (VCMC), Formerly known as METRO CEBU COMMUNITY HOSPITAL (MCCH), Petitioner, vs.ERMA YBALLE, NELIA ANGEL, ELEUTERIA CORTEZ and EVELYN ONG, Respondents.

D E C I S I O N

VILLARAMA, JR., J.:

The present petition was included in the four consolidated cases previously decided by this Court.1 However, its reinstatement and separate disposition became necessary due to oversight in the issuance of the order of consolidation.

The Facts

Respondents were hired as staff nurses (Ong and Angel) and midwives (Yballe and Cortez) by petitioner Visayas Community Medical Center (VCMC), formerly the Metro Cebu Community Hospital, Inc. (MCCHI). MCCHI is a non-stock, non-profit corporation which operates the Metro Cebu Community Hospital (MCCH), a tertiary medical institution owned by the United Church of Christ in the Philippines (UCCP).

Considering the similar factual setting, we quote the relevant portions of the narration of facts in our Decision dated December 7, 2011 in Abaria v. NLRC2:

The National Federation of Labor (NFL) is the exclusive bargaining representative of the rank-and-file employees of MCCHI. Under the 1987 and 1991 Collective Bargaining Agreements (CBAs), the signatories were Ciriaco B. Pongasi, Sr. for MCCHI, and Atty. Armando M. Alforque (NFL Legal Counsel) and Paterno A. Lumapguid as President of NFL-MCCH Chapter. In the CBA effective from January 1994 until December 31, 1995, the signatories were Sheila E. Buot as Board of Trustees Chairman, Rev. Iyoy as MCCH Administrator and Atty. Fernando Yu as Legal Counsel of NFL, while Perla Nava, President of Nagkahiusang Mamumuo sa MCCH (NAMA-MCCH-NFL) signed the Proof of Posting.

On December 6, 1995, Nava wrote Rev. Iyoy expressing the union’s desire to renew the CBA, attaching to her letter a statement of proposals signed/endorsed by 153 union members. Nava subsequently requested that the following employees be allowed to avail of one-day union leave with pay on December 19, 1995: Celia Sabas, Jesusa Gerona, Albina Bañez, Eddie Villa, Roy Malazarte, Ernesto Canen, Jr., Guillerma Remocaldo, Catalina Alsado, Evelyn Ong, Melodia Paulin, Sofia Bautista, Hannah Bongcaras, Ester Villarin, Iluminada Wenceslao and Perla Nava. However, MCCHI returned the CBA proposal for Nava to secure first the endorsement of the legal counsel of NFL as the official bargaining representative of MCCHI employees.

Meanwhile, Atty. Alforque informed MCCHI that the proposed CBA submitted by Nava was never referred to NFL and that NFL has not authorized any other legal counsel or any person for collective bargaining negotiations. By January 1996, the collection of union fees (check-off) was temporarily

suspended by MCCHI in view of the existing conflict between the federation and its local affiliate. Thereafter, MCCHI attempted to take over the room being used as union office but was prevented to do so by Nava and her group who protested these actions and insisted that management directly negotiate with them for a new CBA. MCCHI referred the matter to Atty. Alforque, NFL’s Regional Director, and advised Nava that their group is not recognized by NFL.

In his letter dated February 24, 1996 addressed to Nava, Ernesto Canen, Jr., Jesusa Gerona, Hannah Bongcaras, Emma Remocaldo, Catalina Alsado and Albina Bañez, Atty. Alforque suspended their union membership for serious violation of the Constitution and By-Laws. Said letter states:

x x x x

On February 26, 1996, upon the request of Atty. Alforque, MCCHI granted one-day union leave with pay for 12 union members. The next day, several union members led by Nava and her group launched a series of mass actions such as wearing black and red armbands/headbands, marching around the hospital premises and putting up placards, posters and streamers. Atty. Alforque immediately disowned the concerted activities being carried out by union members which are not sanctioned by NFL. MCCHI directed the union officers led by Nava to submit within 48 hours a written explanation why they should not be terminated for having engaged in illegal concerted activities amounting to strike, and placed them under immediate preventive suspension. Responding to this directive, Nava and her group denied there was a temporary stoppage of work, explaining that employees wore their armbands only as a sign of protest and reiterating their demand for MCCHI to comply with its duty to bargain collectively. Rev. Iyoy, having been informed that Nava and her group have also been suspended by NFL, directed said officers to appear before his office for investigation in connection with the illegal strike wherein they reportedly uttered slanderous and scurrilous words against the officers of the hospital, threatening other workers and forcing them to join the strike. Said union officers, however, invoked the grievance procedure provided in the CBA to settle the dispute between management and the union.

On March 13 and 19, 1996, the Department of Labor and Employment (DOLE) Regional Office No. 7 issued certifications stating that there is nothing in their records which shows that NAMA-MCCH- NFL is a registered labor organization, and that said union submitted only a copy of its Charter Certificate on January 31, 1995. MCCHI then sent individual notices to all union members asking them to submit within 72 hours a written explanation why they should not be terminated for having supported the illegal concerted activities of NAMA-MCCH-NFL which has no legal personality as per DOLE records. In their collective response/statement dated March 18, 1996, it was explained that the picketing employees wore armbands to protest MCCHI’s refusal to bargain; it was also contended that MCCHI cannot question the legal personality of the union which had actively assisted in CBA negotiations and implementation.

On March 13, 1996, NAMA-MCCH-NFL filed a Notice of Strike but the same was deemed not filed for want of legal personality on the part of the filer. The National Conciliation and Mediation Board (NCMB) Region 7 office likewise denied their motion for reconsideration on March 25, 1996. Despite such rebuff, Nava and her group still conducted a strike vote on April 2, 1996 during which an overwhelming majority of union members approved the strike.

Meanwhile, the scheduled investigations did not push through because the striking union members insisted on attending the same only as a group. MCCHI again sent notices informing them that their refusal to submit to investigation is deemed a waiver of their right to explain their side and management shall proceed to impose proper disciplinary action under the circumstances. On March 30, 1996, MCCHI sent termination letters to union leaders and other members who participated in the strike and picketing activities. On April 8, 1996, it also issued a cease-and-desist order to the rest

of the striking employees stressing that the wildcat concerted activities spearheaded by the Nava group is illegal without a valid Notice of Strike and warning them that non-compliance will compel management to impose disciplinary actions against them. For their continued picketing activities despite the said warning, more than 100 striking employees were dismissed effective April 12 and 19, 1996.

Unfazed, the striking union members held more mass actions. The means of ingress to and egress from the hospital were blocked so that vehicles carrying patients and employees were barred from entering the premises. Placards were placed at the hospital’s entrance gate stating:

"Please proceed to another hospital" and "we are on protest." Employees and patients reported acts of intimidation and harassment perpetrated by union leaders and members. With the intensified atmosphere of violence and animosity within the hospital premises as a result of continued protest activities by union members, MCCHI suffered heavy losses due to low patient admission rates. The hospital’s suppliers also refused to make further deliveries on credit.

With the volatile situation adversely affecting hospital operations and the condition of confined patients, MCCHI filed a petition for injunction in the NLRC (Cebu City) on July 9, 1996 (Injunction Case No. V-0006-96). A temporary restraining order (TRO) was issued on July 16, 1996. MCCHI presented 12 witnesses (hospital employees and patients), including a security guard who was stabbed by an identified sympathizer while in the company of Nava’s group. MCCHI’s petition was granted and a permanent injunction was issued on September 18, 1996 enjoining the Nava group from committing illegal acts mentioned in Art. 264 of the Labor Code.

On August 27, 1996, the City Government of Cebu ordered the demolition of the structures and obstructions put up by the picketing employees of MCCHI along the sidewalk, having determined the same as a public nuisance or nuisance per se.

Thereafter, several complaints for illegal dismissal and unfair labor practice were filed by the terminated employees against MCCHI, Rev. Iyoy, UCCP and members of the Board of Trustees of MCCHI.3

On August 4, 1999, Executive Labor Arbiter Reynoso A. Belarmino rendered his Decision4 in the consolidated cases which included NLRC Case No. RAB-VII-02-0309-98 filed by herein respondents. The dispositive portion of said decision reads:

WHEREFORE, premises considered, judgment is hereby rendered dismissing the claim of unfair labor practice and illegal dismissal and declaring the termination of the following as an offshoot of the illegal strike: Perla Nava, Catalina Alsado, Albina Bañez, Hannah Bongcaras, Ernesto Canen, Jesusa Gerona and Guillerma Remocaldo but directing the respondent Metro Cebu Community Hospital to pay the herein complainants separation pay in the sum of THREE MILLION EIGHTY FIVE THOUSAND EIGHT HUNDRED NINETY SEVEN and [40]/100 (P3,085,897.40) detailed as follows:

x x x x

79. Erma Yballe

6/11/83 – 4/19/96: 12 years, 10 mos. (13 years)P5,000.00 ÷ 2 x 13 = 32,500.00

80. Eleuteria Cortez

12/13/[74]5 – 4/12/96: 21 years, 4 mos. (21 years)P5,000.00 ÷ 2 x 21 = 52,500.00

81. Nelia Angel


82. Evelyn Ong


x x x x

SO ORDERED.6

Executive Labor Arbiter Belarmino ruled that MCCHI and its administrators were not guilty of unfair labor practice. He likewise upheld the termination of complainants union officers who conducted the illegal strike. The rest of the complainants were found to have been illegally dismissed, thus:

We, however, see that the NAMA members deserve a different treatment. As the Court said, members of a union cannot be held responsible for an illegal strike on the sole basis of such membership, or even on an account of their affirmative vote authorizing the same. They become liable only if they actually participated therein (ESSO Phil., Inc. vs. Malayang Manggagawa sa Esso 75 SCRA 73). But the illegality of their participation is placed in a state of doubt they, being merely followers. Under the circumstances, We resort to Art. 4 of the Labor Code favoring the workingman in case of doubt in the interpretation and implementation of laws.

Obviously swayed by the actuations of their leaders, herein complainants ought to be reinstated as a matter of policy but without backwages for they cannot be compensated having skipped work during the illegal strike (National Federation of Sugar Workers vs. Overseas et al. 114 SCRA 354). But with their positions already taken over by their replacements and with strained relations between the parties having taken place, We deem it fair that complainants except for the seven officers, should be paid separation pay of one-half (1/2) month for every year of service by the respondent hospital.7

Respondents and their co-complainants filed their respective appeals before the National Labor Relations Commission (NLRC) Cebu City. On February 15, 2001, respondents and MCCHI jointly moved to defer resolution of their appeal (NLRC Case No. V-001042-99) in view of a possible compromise. Consequently, in its Decision8 dated March 14, 2001, the NLRC’s Fourth Division (Cebu City) resolved only the appeals filed by respondents’ co-complainants. The dispositive portion of said decision reads:

WHEREFORE, premises considered, the decision of the Executive Labor Arbiter dismissing the complaint for unfair labor practice and illegal dismissal is AFFIRMED with MODIFICATIONS declaring the dismissal of all the complainants in RAB Case No. 07-02-0394-98 and RAB Case No. 07-03-0596-98 valid and legal. Necessarily, the award of separation pay and attorney’s fees are hereby Deleted.

Resolution on RAB Case No. 07-02-0309-98 is hereby Deferred upon Joint Motion of the parties.

SO ORDERED.9

The NLRC denied the motion for reconsideration of the above decision under its Resolution10 dated July 2, 2001.

Having failed to reach a settlement, respondents’ counsel filed a motion to resolve their appeal on January 2, 2003. Thus, on March 12, 2003, the NLRC-Cebu City Fourth Division rendered its Decision,11 as follows:

WHEREFORE, premises considered, the decision of the Executive Labor Arbiter dismissing the complaint for unfair labor practice and illegal dismissal is AFFIRMED with MODIFICATIONS declaring all the complainants to have been validly dismissed. Necessarily, the award of separation pay and attorney’s fees are hereby Deleted.

SO ORDERED.12

In deleting the award of separation pay and attorney’s fees, the NLRC emphasized that respondents and their co-complainants are guilty of insubordination, having persisted in their illegal concerted activities even after MCCHI had sent them individual notices that the strike was illegal as it was filed by NAMA-MCCH-NFL which is not a legitimate labor organization. It held that under the circumstances where the striking employees harassed, threatened and prevented non-striking employees and doctors from entering hospital premises, blocked vehicles carrying patients to the hospital premises and caused anxiety to recuperating patients by displaying placards along the corridors of the hospital, and the resulting decrease in hospital admission, refusal of suppliers to make further deliveries due to fears of violence erupting as a result of picketing, and diminished income due to low admission rates, it would be unfair to saddle MCCHI with the burden of paying separation pay to complainants who were validly dismissed. Respondents’ motion for reconsideration was denied by the NLRC under its Resolution13 dated April 13, 2004.

Meanwhile, the petition for certiorari filed by respondents’ co-complainants in the Court of Appeals (CA) Cebu Station (CA-G.R. SP No. 66540) was initially dismissed by the CA’s Eighth Division on the ground that out of 88 petitioners only 47 have signed the certification against forum shopping. On motion for reconsideration filed by said petitioners, the petition was reinstated but only with respect to the 47 signatories. Said ruling was challenged by complainants before this Court via a petition for review on certiorari, docketed as G.R. No. 154113 (Abaria, et al. v. NLRC, et al.).14

On October 17, 2008, the CA dismissed the petition in CA-G.R. SP No. 66540, as follows:

WHEREFORE, premises considered, judgment is hereby rendered AFFIRMING the Decision of the National Labor Relations Commission (NLRC) – Fourth Division dated March 14, 2001 in NLRC Case No. V-001042-99, WITH MODIFICATIONS to the effect that (1) the petitioners, except the union officers, shall be awarded separation pay equivalent to one-half (1/2) month pay for every year of service, and (2) petitioner Cecilia Sabas shall be awarded overtime pay amounting to sixty-three (63) hours.

SO ORDERED.15

The motion for reconsideration and motion for partial reconsideration respectively filed by the complainants and MCCHI in CA-G.R. SP No. 66540 were likewise denied by the CA.16 Both parties elevated the case to this Court in separate petitions: G.R. No. 187778 (Perla Nava, et al. v. NLRC, et al.) and G.R. No. 187861 (Metro Cebu Community Hospital v. Perla Nava, et al.). Herein respondents also filed in the CA a petition for certiorari assailing the March 12, 2003 Decision and April 13, 2004 Resolution of the NLRC, docketed as CA-G.R. SP No. 84998 (Cebu City). By Decision17 dated November 7, 2008, the CA granted their petition, as follows:

WHEREFORE, the challenged Decision of public respondent dated March 12, 2003 and its Resolution dated April 13, 2004 are herebyREVERSED AND SET ASIDE. Private respondent Metro Cebu Community Hospital is ordered to reinstate petitioners Erma Yballe, Eleuteria Cortes, Nelia Angel and Evelyn Ong without loss of seniority rights and other privileges; to pay them their full backwages inclusive of their allowances and other benefits computed from the time of their dismissal up to the time of their actual reinstatement.

No pronouncement as to costs.

SO ORDERED.18

Petitioner filed a motion for reconsideration which the CA denied in its February 22, 2011 Resolution.19

The Case

The present petition (G.R. No. 196156) was filed on April 27, 2011. Records showed that as early as August 3, 2009, G.R. Nos. 187861 and 187778 were consolidated with G.R. No. 154113 pending with the Third Division.20 As to the present petition, it was initially denied under the June 8, 2011 Resolution21 issued by the Second Division for failure to show any reversible error committed by the CA. Petitioner filed a motion for reconsideration to which respondents filed an opposition. Said motion for reconsideration of the earlier dismissal (June 8, 2011) remained unresolved by the Second Division which, on June 29, 2011, issued a resolution ordering the transfer of the present case to the Third Division.22

It is further recalled that on June 23, 2011, petitioner moved to consolidate the present case with G.R. Nos. 154113, 187861 and 187778 which was opposed by respondents. Under Resolution dated August 1, 2011, the Third Division denied the motion for consolidation, citing the earlier dismissal of the petition on June 8, 2011.23 However, on motion for reconsideration filed by petitioner, said resolution was set aside on October 19, 2011 and the present case was ordered consolidated with G.R. Nos. 154113, 187778 and 187861 and transferred to the First Division where the latter cases are pending.24

On December 7, 2011, the Decision25 in the consolidated cases (G.R. Nos. 154113, 187778, 187861 and 196156) was rendered, the dispositive portion of which states:

WHEREFORE, the petition for review on certiorari in G.R. No. 187861 is DENIED while the petitions in G.R. Nos. 154113, 187778 and 196156 are PARTLY GRANTED. The Decision dated October 17, 2008 of the Court of Appeals in CA-G.R. SP No. 66540 is hereby AFFIRMED with MODIFICATIONS in that MCCHI is ordered to pay the petitioners in G.R. Nos. 154113 and 187778, except the petitioners who are union officers, separation pay equivalent to one month pay for every year of service, and reasonable attorney’s fees in the amount of P50,000.00. The Decision dated November 7, 2008 is likewise AFFIRMED with MODIFICATIONS in that MCCHI is ordered to pay the private respondents in G.R. No. 196156 separation pay equivalent to one month pay for every year of service, and that the award of back wages is DELETED.

The case is hereby remanded to the Executive Labor Arbiter for the recomputation of separation pay due to each of the petitioners union members in G.R. Nos. 154113, 187778 and 196156 except those who have executed compromise agreements approved by this Court.

No pronouncement as to costs.

SO ORDERED.26

On February 7, 2012, respondents filed a Motion for Reconsideration with Motion for Severance and Remand27 asserting that they were denied due process as they had no opportunity to file a comment on the petition prior to the rendition of the Decision dated December 7, 2011. They also point out that the issues in the present case are different from those raised in the petitions filed by their co-complainants.

On June 18, 2012, this Court issued a Resolution (1) reinstating the petition and requiring the respondents to file their comment on the petition; and (2) denying the motion for remand to the Second Division.28 Respondents thus filed their Comment, to which petitioner filed its Reply. Thereafter, the parties submitted their respective memoranda.

Issues

In their Memorandum, respondents submit that since the Decision dated December 7, 2011 in the consolidated cases of Abaria v. NLRC have already declared the dismissal of complainants union members as illegal but awarded separation pay and reasonable attorney’s fees, the remaining issue to be resolved in this case is whether respondents are entitled to back wages and damages.

Petitioner, however, further assail the CA in (a) allowing respondents to change their theory on appeal, (b) finding that respondents did not commit illegal acts during the strike and (c) increasing the award of separation pay to one month pay for every year of service as held in the December 7, 2011 Decision in view of the damages suffered by petitioner.

Respondents’ Argument

Respondents maintain that there was no iota of evidence presented by petitioner that they took part in the illegal strike conducted by the Nava group or committed illegal acts like the blocking of ingress and egress in the hospital premises. They claim that they were never involved in work stoppage but instead were locked out by petitioner as they were unable to resume work because hospital security personnel prevented them from entering the hospital upon petitioner’s instructions.

Claiming that they have consistently manifested their non- participation in the illegal strike before the regional arbitration branch, NLRC and the CA, respondents argue that there is absolutely no reason to delete the awards of back wages and separation pay in lieu of reinstatement.

Petitioner’s Argument

Petitioner contends that respondents have surreptitiously changed their position from admitting in their pleadings before the NLRC their participation in the illegal strike to that of mere wearing of arm bands and alleged non-receipt of the notices in their appeal before the CA. They stress the established facts on record that: (1) respondents signed the March 18, 1996 collective reply of the union officers and members to the notices sent by petitioner regarding their illegal concerted activities, thus proving that they received the said notices; (2) acknowledged Perla Nava as their union leader which belies respondents’ belated attempt to distance themselves from the Nava group who led the illegal strike; and (3) respondents did not, in their motion for reconsideration of the NLRC Decision dated March 12, 2003, make any denial of their participation in the illegal strike but even justified their resort thereto due to the prevailing labor dispute.

With the Decision in the consolidated cases (Abaria v. NLRC) having already upheld the consistent rule that dismissed employees who participated in an illegal strike are not entitled to back wages, petitioner prays that the previous rulings in Philippine Diamond Hotel and Resort, Inc. (Manila Diamond Hotel) v. Manila Diamond Hotel Employees Union,29 G & S Transport Corporation v.

Infante,30 Philippine Marine Officers’ Guild v. Compañia Maritima, et al.,31 and Escario v. National Labor Relations Commission (Third Division)32 be likewise applied in this case.

Our Ruling

The petition is partly meritorious.

Paragraph 3, Article 264(a) of the Labor Code 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 a strike may be declared to have lost his employment status . . ." In the Decision dated December 7, 2011, we declared as invalid the dismissal of MCCH employees who participated in the illegal strike conducted by NAMA-MCCH-NFL which is not a legitimate labor organization. Since there was no showing that the complainants committed any illegal act during the strike, they may not be deemed to have lost their employment status by their mere participation in the illegal strike. On the other hand, the union leaders (Nava group) who conducted the illegal strike despite knowledge that NAMA-MCCH-NFL is not a duly registered labor union were declared to have been validly terminated by petitioner.

We stress that the law makes a distinction between union members and union officers. A worker merely participating in an illegal strike may not be terminated from employment. It is only when he commits illegal acts during a strike that he may be declared to have lost employment status.33 In contrast, a union officer may be terminated from employment for knowingly participating in an illegal strike or participates in the commission of illegal acts during a strike. The law grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment. It possesses the right and prerogative to terminate the union officers from service.34

In this case, the NLRC affirmed the finding of the Labor Arbiter that respondents supported and took part in the illegal strike and further declared that they were guilty of insubordination. It noted that the striking employees were determined to force management to negotiate with their union and proceeded with the strike despite knowledge that NAMA-MCCH-NFL is not a legitimate labor organization and without regard to the consequences of their acts consisting of displaying placards and marching noisily inside the hospital premises, and blocking the entry of vehicles and persons.

On appeal, the CA reversed the rulings of the Labor Arbiter and NLRC, ordered the reinstatement of respondents and the payment of their full back wages. The CA found that respondents’ participation was limited to the wearing of armband and thus, citing Bascon v. CA,35 declared respondents’ termination as invalid in the absence of any evidence that they committed any illegal act during the strike.

In the Decision dated December 7, 2011, we likewise ruled that the mass termination of complainants was illegal, notwithstanding the illegality of the strike in which they participated. However, since reinstatement was no longer feasible, we ordered MCCHI to pay the dismissed employees separation pay equivalent to one month pay for every year of service. The claim for back wages was denied, consistent with existing law and jurisprudence. Respondents argue that the CA correctly awarded them back wages because while they "supported the protest action" they were not part of the Nava group who were charged with blocking the free ingress and egress of the hospital, threatening and harassing persons entering the premises, and making boisterous and unpleasant remarks. They deny any participation in the illegal strike and assert that no evidence of their actual participation in the strike was shown by petitioner.

We are not persuaded by respondents’ attempt to dissociate themselves from the Nava group who led the illegal strike. In their motion for reconsideration filed before the NLRC, respondents no longer denied having participated in the strike but simply argued that no termination of employment in

connection with the strike "staged by complainants" cannot be legally sustained because MCCHI "did not file a complaint or petition to declare the strike of complainants illegal or declare that illegal acts were committed in the conduct of the strike." Respondents further assailed the NLRC’s finding that they were guilty of insubordination since "the proximate cause of the acts of complainants was the prevailing labor dispute and the consequent resort by complainants of [sic] a strike action."36 When the case was elevated to the CA, respondents shifted course and again insisted that they did not participate in the strike nor receive the March 15, 1996 individual notices sent by petitioner to the striking employees.

Respondents’ inconsistent posture cannot be sanctioned. While there was indeed no evidence of any illegal act committed by respondents during the strike, the Labor Arbiter and NLRC were one in finding that respondents actively supported the concerted protest activities, signed the collective reply of union members manifesting that they launched the mass actions to protest management’s refusal to negotiate a new CBA, refused to appear in the investigations scheduled by petitioner because it was the union’s stand that they would only attend these investigations as a group, and failed to heed petitioner’s final directive for them to desist from further taking part in the illegal strike. The CA, on the other hand, found that respondents’ participation in the strike was limited to the wearing of armbands. Since an ordinary striking worker cannot be dismissed for such mere participation in the illegal strike, the CA correctly ruled that respondents were illegally dismissed. However, the CA erred in awarding respondents full back wages and ordering their reinstatement despite the prevailing circumstances.

As a general rule, back wages are granted to indemnify a dismissed employee for his loss of earnings during the whole period that he is out of his job. Considering that an illegally dismissed employee is not deemed to have left his employment, he is entitled to all the rights and privileges that accrue to him from the employment.37 The grant of back wages to him is in furtherance and effectuation of the public objectives of the Labor Code, and is in the nature of a command to the employer to make a public reparation for his illegal dismissal of the employee in violation of the Labor Code.38

Are respondents then entitled to back wages? This Court, in G & S Transport Corporation v. Infante,39 ruled in the negative:

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. x x x In Philippine Marine Officers’ Guild v. Compañia Maritima, as affirmed in Philippine Diamond Hotel and Resort v. Manila Diamond Hotel Employees Union, 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. (Emphasis supplied)

The alternative relief for union members who were dismissed for having participated in an illegal strike is the payment of separation pay in lieu of reinstatement under the following circumstances: (a) when reinstatement can no longer be effected in view of the passage of a long period of time or because of the realities of the situation; (b) reinstatement is inimical to the employer’s interest; (c) reinstatement is no longer feasible; (d) reinstatement does not serve the best interests of the parties involved; (e) the employer is prejudiced by the workers’ continued employment; (f) facts that make execution unjust or inequitable have supervened; or (g) strained relations between the employer and employee.40

In the Decision dated December 7, 2011, we held that the grant of separation pay to complainants is the appropriate relief under the circumstances, thus:

Considering that 15 years had lapsed from the onset of this labor dispute, and in view of strained relations that ensued, in addition to the reality of replacements already hired by the hospital which had apparently recovered from its huge losses, and with many of the petitioners either employed elsewhere, already old and sickly, or otherwise incapacitated, separation pay without back wages is the appropriate relief. x x x41

In fine, we sustain the CA in ruling that respondents who are mere union members were illegally dismissed for participating in the illegal strike conducted by the Nava group. However, we set aside the order for their reinstatement and payment of full back wages.

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated November 7, 2008 and Resolution dated February 22, 2011 of the Court of Appeals in CA-G.R. SP No. 84998 are hereby AFFIRMED with MODIFICATIONS. In lieu of reinstatement, petitioner Visayas Community Medical Center formerly known as the Metro Cebu Community Hospital) is ordered to PAY respondents Erma Yballe, Evelyn Ong, Nelia Angel and Eleuteria Cortez separation pay equivalent to one month pay for every year of service. The award of back wages to the said respondents is DELETED.

The case is hereby remanded to the Executive Labor Arbiter for the recomputation of separation pay due to each of the respondents.

SO ORDERED.

MARTIN S. VILLARAMA, JR.Associate Justice

• Actual Participation in illegal strike necessary to dismiss employees

Chuayuko Steel Mfg. Corporation vs. Buklod ng Manggagawa sa Chuayuko Steel Mfg. Corp. – January 31, 2007, 513 S 621

SECOND DIVISION

CHUAYUCO STEEL MANUFACTURING CORPORATION AND/OR EDWIN CHUA,

Petitioners,

- versus -

BUKLOD NG MANGGAGAWA SA CHUAYUCO STEEL MANUFACTURING CORPORATION,

Respondent.

G.R. No. 167347

Present:

QUISUMBING, J., Chairperson,CARPIO,CARPIO MORALES,TINGA, andVELASCO, JR., JJ.

Promulgated:January 31, 2007

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

D E C I S I O N

CARPIO MORALES, J.: Assailed via petition for review are issuances of the Court of Appeals in CA-G.R. SP No.

79330, to wit: Decision[1] dated October 7, 2004 modifying the decision of the National Labor Relations Commission (NLRC) in NLRC CA No. 032475-02, and Resolution[2] dated February 28, 2005 denying petitioners motion for partial reconsideration.

Buklod ng Manggagawa sa Chuayuco Steel Manufacturing Corporation (respondent), a

legitimate labor organization, is the recognized bargaining agent of all rank and file employees of petitioner Chuayuco Steel Manufacturing Corporation (the corporation) of which its co-petitioner Edwin Chua is the President.[3]

In a special election of officers conducted by respondent on May 10,

1999, Camilo L. Lenizo (Lenizo) emerged as president. A copy of the result of the election was served upon the corporation which, however, refused to recognize the newly elected officers in light of the alleged existence of an intra-union conflict between the factions of Lenizoand Romeo Ibanez (Ibanez), former acting union president.[4]

The Department of Labor and Employment (DOLE) Regional Director later issued an

order directing the corporation to recognize the newly elected officers as the authorized representatives of respondent.[5] The order was upheld by the Bureau of Labor Relations (BLR) by Resolution dated October 16, 2000.[6] Ibanezs faction sought a reconsideration of the resolution but was denied on March 20, 2001.[7]

In the meantime, as respondents collective bargaining agreement expired on November

30, 2000, Lenizos group submitted collective bargaining proposals which the corporation did not heed.

On January 26, 2001, respondent filed a notice of strike with the National Conciliation

Mediation Board (NCMB) R-IV grounded on unfair labor practice, union interference, refusal to bargain, discrimination and non-remittance of funds held in trust.[8]

The corporation filed a Motion to Dismiss the Notice, arguing that it could not enter into

negotiations with respondent because of an intra-union conflict between the factions of Ibanez and Lenizo.[9]

Ibanez later informed the corporation of his intention to question the above-

mentioned BLRs October 16, 2000 decision before the Court of Appeals via petition for certiorari.[10] He in fact filed a petition which was, however, eventually dismissed by the appellate court.[11]

On April 25, 2001, respondent staged a strike. On May 9, 2001, the corporation filed before the NLRC a Petition to Declare the Strike

Illegal, alleging that, aside from the fact that it was based on an intra-union dispute, respondent employed unlawful means in staging the strike including padlocking and putting up several

structures and large stones before the gate to the premises of the corporation, thus preventing free ingress and egress.[12]

On the basis of an ocular inspection report that there was no free ingress to or egress from

the corporation premises, the NLRC issued on May 17, 2001 a temporary restraining order in favor of the corporation.[13] A writ of preliminary injunction was subsequently issued through Order dated June 11, 2001.[14]

By Decision of April 25, 2002, Labor Arbiter Cresencio G. Ramos, Jr. declared the strike

illegal and the individual respondents who led and took active parts in the subject concerted mass action . . . as having consequentially lost their employment status.[15]

The Labor Arbiters Decision was affirmed by the NLRC by Resolution[16] of February 24,

2003. The Court of Appeals, to which respondent appealed via certiorari, modified the NLRC

Resolution by Decision of October 7, 2004 by ordering the reinstatement of the therein named union members of respondent. Thus the appellate court disposed:

WHEREFORE, the April 25, 2002 Decision of the Labor Arbiter

declaring the strike illegal is AFFIRMED. Accordingly, the union officers of Buklod ng Manggagawa Sa ChuayucoSteel Manufacturing Corporation, namely: Camilo L. Lenizo, Edwin T. Caada, Juanito B. Grutas, Reynaldo L. Bandal, Renato H. Castro, Herminio R. Villanueva, Reynaldo M. Larazo,Edgardo C. Trinidad, Salvador B. Cario, Rolando S. Dorado, Robetro C. Larida, Redillon A. Cortez, Eduardo C. Arroyo, Hector A. Trinidad, Rey B. Belardo, Elpidio S. Razon, and Joel L.Petelo are hereby declared as having lost their employment status.

Private respondent Chuayuco Steel Manufacturing Corporation is

ordered to immediately reinstate Rodolfo P. Maniaol, Warlon J. Jimenez, Glenn M. Miraflores, Emilio G. Lee, RamilQ. Guerrero, Ronilo A. Adia, Feliciano R. Amalin, Jr., Armando B. Antolin, Carlito C. Arroyo, Eric G. Ayson, Eldy C. Balbalore, Perlito Bentor, Bernardo N. Caluza, Edgar Q. Dayo, Arnel Q.Fabillar, Roger N. Hecole, Rommel N. Hecole, Ceferino T. Lopez, Rommel N. Manoguid, Eugenio M. Marinas, Jr., Vicente M. Monsalve, Donaldo P. Nuyles, Elvis C. Ocampo, Vicente A.Penillos, Erwin L. Regana, Christopher P. Siatriz, Joelito O. Talasik, Eddie M. Tayco, Salvador Amar, Sonny Magsombol, and Bernardo Baquit to their respective positions without loss of seniority rights.

SO ORDERED.[17] (Emphasis in the original)

Hence, this petition for review which raises the following issues:

I. WHETHER THE COURT OF APPEALS MAY REVIEW THE FINDINGS MADE BY THE NLRC; AND

II. WHETHER THE THIRTY-ONE (31) MEMBERS OF RESPONDENT

WHO JOINED THE STRIKE ARE ENTITLED TO REINSTATEMENT. At the outset, it bears emphasis that a petition for review on certiorari under Rule 45 of

the Rules of Court should raise only questions of law.[18] It is a settled rule that in the exercise of this Courts power of review, it does not inquire into the sufficiency of the evidence presented, consistent with the rule that this Court is not a trier of facts.[19] A fortiori, this rule applies in labor cases.[20] As long as the factual findings of quasi-judicial agencies are supported by substantial evidence, they are entitled to great respect in light of their expertise in their respective fields.[21]

Nevertheless, this Court has recognized a number of exceptions to the foregoing rule,

including, as enumerated in The Insular Life Assurance Company, Ltd. v. Court of Appeals,[22] the following:

(1) when the findings are grounded entirely on speculation, surmises or

conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. x x x (Italics in the original; citations omitted)

On the first issue, contrary to the contention of the corporation (hereafter petitioner), it

was within the jurisdiction of the Court of Appeals, whose jurisdiction over labor cases has been expanded to review the findings of the NLRC. Thus, St. Martin Funeral Home v. NLRC[23] teaches:

. . . [E]ver since appeals from the NLRC to the Supreme Court were

eliminated, the legislative intendment was that the special civil action of certiorari was and still is the proper judicial review of decisions of the NLRC.

x x x x

. . . [W]hile it does not wish to intrude into the congressional sphere on the matter of the wisdom of a law, on this score we add the further observation that there is a growing number of labor cases being elevated to the Court, which, not being a trier of facts, has at times been constrained to remand the case to the NLRC for resolution of unclear or ambiguous factual findings ; that the Court of Appeals is procedurally equipped for that purpose, aside from the increased number of its component divisions; and that there is undeniably an imperative need for expeditious action on labor cases as a major aspect of constitutional protection to labor.

Therefore all references in the amended Section 9 of B.P No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should henceforth be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. (Emphasis and underscoring supplied)

Further, when the circumstances so warrant, the Court of Appeals

can disregard the factual findings of the NLRC. While as a rule, factual findings of agencies exercising quasi-judicial functions such as the NLRC are accorded not only respect but even finality, and that judicial review of labor cases does not go so far as to evaluate the sufficiency of evidence on which the labor officials' findings rest; more so when both the labor arbiter and the NLRC share the same findings, such as in the present case, the Court cannot affirm the decision of the NLRC when its findings of fact on which the conclusion was based are not supported by substantial evidence. By substantial evidence, we mean the amount of relevant evidence which a reasonable mind might accept as adequate to justify the conclusion.[24] (Emphasis and underscoring supplied; citations omitted)

The Court of Appeals, NLRC and Labor Arbiter were in fact unanimous in finding the

strike staged by respondent illegal because of commission of acts proscribed under Article 264(e) of the Labor Code, reading:

(e) No person engaged in picketing shall commit any act of violence,

coercion or intimidation or obstruct the free ingress to or egress from the employers premises for lawful purposes, or obstruct public thoroughfares. (Emphasis supplied)

Thus the Court of Appeals found in its assailed decision:

Even if the strike is valid because its objective or purpose is lawful the strike may still be declared invalid where the means employed are illegal. xxx [A]s confirmed by the NLRC representative who conducted an ocular inspection

on May 10, 2001, the petitioner blocked the free ingress and egress of the private respondents premises by chaining the main gate, putting structures and placing large rocks before the gates of the companys premises. While the petitioner may have a well grounded cause to stage a strike due the private respondents refusal to bargain, still, they committed illegal acts in the process of airing their grievances that rendered it illegal.[25] (Emphasis supplied)

Aside from obstructing free ingress to and egress from petitioners premises, respondents

members also committed illegal acts which were intended to intimidate and harass petitioner and its non-striking employees. Consider the following evidence of petitioner which was unrebutted:

Sinumapaang Salaysay dated 13 November 2001 of Garry P. Florendo

x x x x

5) Na tinangka namin ng kasama kong guard na sina Norberto Almoguera, Ramon Gordavilla, Errol Ibaez at Fornela Corsini na pigilan sina Edwin Caada at ang mga nabanggit nitongkasamahan at iba pang miyembro nila at tanggalin ang mga nakabarikada sa gate ng planta ngunit kami ay pinagbantaan na pag inalis namin ito ay masasaktan kami at magkakagulohabang may hawak-hawak silang mga pamalo at bato;

6) Na simula Abril 25, 2001 ay hindi ako nakalabas ng chuayuco kasama ang iba pang mga empleyado ng chuayuco na sina Gilberto Zapanta, Menrado Barcelo, Jacinto Ibaez, RodolfoBarcelo, Leonoro Manuguid, Florencio Baluga, Salvador Pedraza, Joel Manuguid, Maximo Lerit, Anthony Castro at ang mga kasamahan kong mga guwardiya na sina Norberto Almoguera, Ramon Gordavilla, Errol Ibaez at Corsini Fornela;[26] (Emphasis supplied)

x x x x Sama-samang Salaysay dated 27 June 2001 of Eisen Moral, Ramil Tuubeo, Bryan Tabuzo, Dingreo Batallones[27]

9. Nang mapadaan kami sa picket line ay hinarang kami ng mga strikers sa pangunguna nina Edwin Caada, Salvador Cario, at Rey Belardo; 10. Na, pasigaw at pabantang sinabi ni Edwin Caada na Huwag na kayong papasok bukas!;

11. Na ang kasama nilang si Rey Belardo ay nagpunta sa bandang likuran ng tricycle kung saan nakaupo si Eisen Moral, at bigla na lang itong sinuntok ni Rey Belardo sa maytagiliran; 12. Na tinangka ring sampalin ni Rey Belardo si Ramil Tuibeo ngunit ito ay nasalag niya; 13. Na kung hindi dahil sa tricycle driver na umawat ay maaring nabugbog kaming lahat ng mga strikers.[28] (Emphasis supplied)

x x x x Sinumpaang Salaysay dated 13 November 2001 of Salvador A. Pedraza[29]

6) Noong Mayo 1, 2001, tinangka naming lumabas nina Jacinto Ibaez at Florencio Baluga sa likod ng bakod subalit nagalit ang mga strikers at sinabihan kami na mga sipsip at tuta,hinarang ng mga pamalo at barikada at binantaan na masasaktan kapag lumabas ng kumpanya nina Edwin Caada, Rommel Manuguid, Feliciano Amalin, Salvador Cario, Rey Belardo,Perlito Bentor, Warlon Jimenez, Alberto Ais, Rogel Hecole, at iba pa. Kaya hindi na kami nakalabas;

x x x x 13) Na noong ika 21 ng Agosto 2001, bandang alas 6 ng umaga nang ako ay papasok sa loob ng kumpaya [sic] ay hinarang ang aking sasakyan nina Edwin Caada, Eddie Tayco, Joe Talisik, Edgar Trinidad, Rey Belardo, Edgar Dayo, Rodolfo Maniaol, Jr., Rommel Manuguid, at ilan pa nilang kasamahan at pinilit pababain ang mga manggagawa na nakasakay sa akingsasakyan; 14) Na pinipilit nilang buksan ang pinto ng aking sasakyan at sinuntok pa ni Joe Talisik ang kaliwang likurang bahagi ng pinto ng aking sasakyan; 15) Na ako ay pinagsisigawan ni Edwin Caada at Eddie Tayco na bumaba ng aking sasakyan at ng ako ay bumaba, ako ay sinugod ni Edwin Caada at pilit na tinatadyakan, mabutina lamang ay aking nailagan at inawat ito ng isang nakatalagang guwardiya (S/G Corsini Fornela);[30] (Emphasis supplied) Even assuming then that the purpose for which the strike was staged was valid, the means

employed were far from legitimate, rendering it illegal.

In cases not falling within the prohibition against strikes, the legality or

illegality of a strike depends first, upon the purpose for which it is maintained, and, second, upon the means employed in carrying it on. Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable or unjust (as in the case of the National Labor Union vs. Philippine Match Co., 70 Phil., 300), or if in carrying on the strike the strikers should commit violence or cause injuries to persons or damage to property (as in the case of National Labor Union, Inc., vs. Court of Industrial Relations, et al., 68 Phil., 732) the strike, although not prohibited by injunction, may be declared by the court illegal, with the adverse consequences to the strikers (Luzon Marine Dept. Union vs. Roldan, 86 Phil., 507).

Where, in carrying out the strike, coercion, force, intimidation, violation

with physical injuries, sabotage and the use of unnecessary and obscene language or epithets were committed by the top officials and members of the union in an attempt to prevent the other willing laborers to go to work, it was held that "a strike held under those circumstances cannot be justified in a regime of law for that would encourage abuses and terrorism and would subvert the very purpose of the law which provides for arbitration and peaceful settlement of labor disputes" (Liberal Labor vs. Phil. Can, 91 Phil. 72)[31] (Emphasis supplied)

Nevertheless, responsibility for these illegal acts must be on an individual and not collective basis. So Article 264 (a) of the Labor Code directs:

x x x x . . . 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 a strike may be declared to have lost his employment status . . .

x x x x

Thus, a union officer may be declared to have lost his employment status if he knowingly participates in an illegal strike, whereas a union member may be similarly faulted if he knowingly participates in the commission of illegal acts during the strike.[32] Substantial evidence, which is that level of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion,[33] suffices to prove participation in the commission of illegal acts. [34]

Contrary to the Court of Appeals finding, the record is replete with evidence identifying the members of respondent who committed prohibited acts under Article 264 of the Labor Code, viz:

Sinumpaang Salaysay dated 13 November 2001 of Salvador A. Pedraza[35]

3) Na ng aking silipin sa gate

ay nakita kong naglalagay na ng mga malalaking bato at kahoy na inihaharang sa main gate sila Edwin Caada, Warlon Jimenez, Camilo Lenizo, Hector Trinidad, Rommel Manoguid, Salvador Cario at iba pa nitong kasamahan at naghahanda na rin sila sa paggawa ng kubol;

x x x x

5) Na noong araw na ring iyon, sinubukan tanggalin ng mga guwardiya na sina G

avino Rocafor, Albert Famini at iba pang mga guwardiya ng Target Security Agency at empleyado ngChuayuco na sina Andres Balatero, Ronaldo Letun, Victor Ragais, Dandy Pulido at Manny Bulahan ang mga nakabarikadang malalaking bato at kahoy sa harapan ng gate ngunitnagbanta sina Edwin Caada, Christopher Siatriz, Edgar Trinidad, Perlito Bentor at iba pang strikers na kapag pinilit tanggalin ang barikada ay magkakagulo atmagkakasakitan;

6) Noong Mayo 1,

2001, tinangka naming lumabas nina Jacinto Ibaez at Florencio Baluga sa likod ng bakod subalit nagalit ang mga strikers at sinabihan kami na mga sipsip at tuta,hinarang ng mga pamalo at barikada at binantaan na masasaktan kapag lumabas ng kumpanya nina Edwin Caada, Rommel Manuguid, Feliciano Amalin, Salvador Cario, ReyBelardo, Perlito Bentor, Warlon Jimenez, Alberto Ais, Rogel Hecole, at iba pa. Kaya hindi na kami nakalabas;

x x x x

11) Na magbuhat ng mabuksan ang kompanya, ang lahat ng nagnanais pumaso

k sa tungkulin tulad ko at ibang empleyado katulad nina Eisen Moral, Dingreo Batallones, Ramil Tuiebeoay tinatakot at pinipigilan nina Edwin Caada, Eddie Tayco, Rommel Manuguid, Perlito Bentor, Salvador Cario, Joe Talisik, Edgar Trinidad at iba pang mga strikers;

x x x x

13) Na noong ika 21 ng Agosto 2001, bandang alas 6 ng umaga nang ako ay papasok sa loob ng kumpaya [sic] ay hinarang ang aking sasakyan nina Edwin Caada, Eddie Tayco, JoeTalisik, Edgar Trinidad, Rey Belardo, Edgar Dayo, Rodolfo Maniaol, Jr., Rommel Manuguid, at ilan pa nilang kasamahan at pinilit pababain ang mga manggagawa nanakasakay sa aking sasakyan;

14) Na pinipilit nilang buksan ang pinto ng aking sasakyan at sinuntok pa ni Joe

Talisik ang kaliwang likurang bahagi ng pinto ng aking sasakyan; 15) Na ako ay pinagsisigawan ni Edwin Caada at

Eddie Tayco na bumaba ng aking sasakyan at ng ako ay bumaba, ako ay sinugod ni Edwin Caada at pilit na tinatadyakan, mabuti na lamang ayaking nailagan at inawat ito ng isang nakatalagang guwardiya (S/G Corsini Fornela);

x x x x[36] (Emphasis and underscoring supplied)

Sinumpaang Salaysay dated 13 November 2001 of Garry P. Florendo 4) Pagkatapos noon ay sinarhan nina Edwin Caada[,] Hector

Trinidad, Eddie Tayco, Warlon Jimenez, Bernard Caluza, Armando Antolin, Dondon Noilez, Christopher Siatriz at ibapang kasamahan nila ang gate at nilagyan na ng mga barikadang malalaking bato at kahoy ang harap ng gate at naglagay na rin sila ng kubol sa harap at likod ng chuayuco;

5) Na tinangka namin ng kasama kong guard na sina Norberto Almoguera,

Ramon Gordavilla, Errol Ibaez at Fornela Corsini na pigilan sina Edwin Caada at ang mga nabanggit nitongkasamahan at iba pang miyembro nila at tanggalin ang mga nakabarikada sa gate ng planta ngunit kami ay pinagbantaan na pag inalis naming ito ay masasaktan kami atmagkakagulo habang may hawak-hawak silang mga pamalo at bato;

x x x x[37] (Emphasis and underscoring supplied)

Clearly, the following members of respondent were shown to have participated in the

commission of illegal acts, hence, deemed to have lost their employment status:Warlon Jimenez, Rommel Manuguid, Christopher Siatriz, Perlito Bentor, Feliciano Amalin, Roger Hecole, Eddie Tayco, Joelito Talisik, Edgar Dayo, Rodolfo Maniaol, Jr., Bernardo Caluza, and Armando Antolin.

In any event, except for Rommel Manuguid and Feliciano Amalin, the employees named in the immediately preceding paragraph had tendered their resignation, along with Glenn M. Miraflores, Emilio G. Lee, Ramil Q. Guerrero, Carlito C. Arroyo, Eric G. Ayson, Eldy C. Balbalore, Rommel N. Hecole, Ceferino T. Lopez, Vicente M. Monsalve,Donaldo P. Nuyles, Elvis C. Ocampo, and Erwin L. Regana.[38]

In light of petitioners manifestation[39] and admission that Salvador Amar,

Sonny Magsombol and Bernardo Baquit did not join the strike and have remained employed with it, the order for their reinstatement is improper, hence, must be deleted.

Only Ronilo A. Adia, Arnel Q. Fabillar, Eugenio M. Marinas, Jr., and Vicente

A. Penillos then must be reinstated. IN FINE, the assailed Decision dated October 7, 2004 and Resolution dated February 28,

2005 issued by the Court of Appeals are Affirmed with Modification. WHEREFORE, the petition is in part GRANTED. The strike staged by respondent, Buklod ng Manggagawa sa Chuayuko Steel

Manufacturing Corporation, is declared illegal. The following officers and members of respondent, namely: Camilo L. Lenizo, Edwin

T. Caada, Juanito B. Grutas, Reynaldo L. Bandal, Renato H. Castro, Herminio R. Villanueva, Reynaldo M. Larazo, Edgardo C. Trinidad, Salvador B. Cario, Rolando S. Dorado, Robetro C. Larida, Redillon A. Cortez, Eduardo C. Arroyo, Hector A. Trinidad,Rey B. Belardo, Elpidio S. Razon, and Joel L. Petelo, Warlon Jimenez, Rommel Manuguid, Christopher Siatriz, Perlito Bentor, Feliciano Amalin, Roger Hecole, Eddie Tayco,Joelito Talisik, Edgar Dayo, Rodolfo Maniaol, Jr., Bernardo Caluza, and Armando Antolin are declared to have lost their employment status.

Petitioner Chuayuco Steel Manufacturing Corporation is ordered to immediately reinstate

only Ronilo A. Adia, Arnel Q. Fabillar, Eugenio M. Marinas, Jr., and Vicente A.Penillos to their respective positions without loss of seniority rights.

SO ORDERED. CONCHITA CARPIO MORALESAssociate Justice

• Nature of the Notice of Return to work Order

Manila Hotel Employees Association vs. Manila Hotel Corporation, March 5, 2007, 517 S 349

THIRD DIVISION

MANILA HOTEL EMPLOYEES ASSOCIATION and its members,Petitioners,

- versus -

MANILA HOTEL CORPORATION,Respondent.

G.R. No. 154591

Present:

YNARES-SANTIAGO, J.,Chairperson,AUSTRIA-MARTINEZ,CALLEJO, SR.,*

CHICO-NAZARIO, andNACHURA, JJ.

Promulgated:

March 5, 2007x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N CHICO-NAZARIO, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the

Decision,[1]dated 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.

On 11 November 1999, the MHEA filed a Notice of Strike with the National Conciliation and

Mediation Board (NCMB) in its National Capital Region office against Manila Hotel on the

grounds of unfair labor practices.[2] 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 on 24 November 1999. 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.[3] The parties and their counsels were served copies of

the said Order.[4] MHEA filed a Motion for Reconsideration dated 29 November 1999 assailing

the validity of said Order.

The case was set for mandatory conference on 8 February 2000 before Presiding Commissioner

Rogelio I. Rayala. During the conference, the parties were advised of the certification order,

which prohibited them from taking any action that would exacerbate the situation. At the

instance of the MHEA officers, the hearing of the case was reset to 29 February 2000 due to the

absence of the counsel for MHEA.[5]

On 10 February 2000, the MHEA conducted a strike despite the clear terms of the Order issued

by the SOLE on 24 November 1999, and despite the repeated reminders thereof.[6] On the same

day, Commissioner Rayala called for a mandatory conference.[7] Thereafter, several conferences

were conducted by the NLRC, wherein both parties were warned against aggravating the already

volatile situation. During its hearing on 8 March 2000, the NLRC sought to have both parties

identify the issues and stipulate the facts, despite their reluctance. It also allowed the parties

sufficient time to file their position papers, with which both parties failed to comply.[8]

After the strike was conducted, both parties filed various motions and pleadings before the

NLRC. Manila Hotel filed a complaint with Prayer for Injunction and/or Temporary Restraining

Order on 11 February 2000, alleging that MHEA conducted an illegal strike, blocked all ingress

and egress of the hotel premises, harassed and intimidated company officers, non-striking

employees, customers and suppliers. In addition, it sought a declaration that the strike was illegal

and that, consequently, the striking employees lost their employment.[9]

The NLRC issued an Order dated 11 February 2000 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 further instructed the parties to submit proof of compliance with the

instant order immediately after the lapse of twenty-four hours.[10]The parties, through their

counsels, received the said Order before 4:00 pm of the same day. In their Urgent Manifestation

and Motion to Set Aside Order dated 14 February 2000, and Motion for Reconsideration

dated 11 April 2000, MHEA admitted that a copy of the order was served on the picket lines

at 5:00 pm of 11 February 2000.[11]

The NLRC received a copy of the Compliance filed by Manila Hotel on 14 February 2000,

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.[12]

In response to the NLRCs return-to-work order, dated 11 February 2000, the MHEA filed an

Urgent Manifestation and Motion to Set Aside Order on 14 February 2000. It alleged that the

Motion for Reconsideration, dated 29 November 1999, questioning the validity of the Order of

the SOLE, dated 24 November 1999, which certified the case to the NLCR, was still pending

with the SOLE. The said motion had prevented the said Order of the SOLE from becoming final

and executory. Thus, it alleged that the NLRC had not acquired jurisdiction over the labor

dispute pending the resolution of the Motion for Reconsideration filed before the SOLE.[13] On 17 February 2000, the NLRC denied MHEAsUrgent Manifestation and Motion to Set

Aside Order.[14]

The NLRC also issued another Order on 17 February 2000, 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. [15]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.[16]

Pending the resolution of its motion, MHEA filed a Motion to Inhibit, dated 10 March 2000,

seeking to inhibit Commissioner Rayala,[17] who voluntarily inhibited himself.[18]Likewise, the

MHEA, through a Supplemental Motion, dated 22 March 2000, sought the inhibition of all the

members of the First Division of the NLRC.[19] CommissionerVeloso also voluntarily inhibited

himself. On 31 March 2000, the case was re-raffled to the members of the Second and Third

Divisions. The Commissioners thus convened and agreed to resolve the case per curiam. [20]

In the Decision promulgated on 5 April 2000, the NLRC ruled that the 10 February 2000 strike

held by MHEA was illegal for its defiance of the return-to-work order. However, it determined

that only the union officers were deemed to have lost their employment. It ruled that there was

no evidence showing who among the striking employees were actually notified of the return-to-

work order, and therefore, such employees have not forfeited their employment. But in view of

the antagonism on both sides, the NLRC awarded a severance pay equivalent to one-month

salary to the returning union members for every year of service, instead of ordering Manila Hotel

to reinstate them.[21] In thedispositive part of the Decision,[22] the NLRC decreed that:

WHEREFORE, premises considered, the strike is declared illegal. Accordingly, the incumbent officers of the union are declared to have forfeited their employment status. Further, no relief may be granted the union with respect to their demands, in view of the absence of a decision thereon by a Voluntary Arbitrator.

In lieu of an order for the Hotel and members of the union to maintain their respective status previous to the strike, Manila Hotel, Inc. is hereby ORDERED to pay the returning union members, as an alternative relief to continued employment, severance compensation in an amount equivalent to one (1) month salary for every year of service, a fraction thereof, being considered as one whole year. No entitlement to backwages is however decreed, pursuant to the no-work-no-pay principle in strike cases.

Both parties filed their respective Motions for Reconsideration. Manila Hotel filed a Motion for

Partial Reconsideration which sought the deletion of the award of severance compensation to the

union members who participated in the illegal strike.[23] MHEA, on the other hand, sought the

reversal of the Decision on the ground that the NLRC had no jurisdiction over the case and that

they were deprived of due process.[24] The NLRC denied both motions in a Resolution dated 17

May 2000.[25]

On 6 July 2000, Manila Hotel filed a Petition for Certiorari under Rule 65 before the Court of

Appeals to assail the Decision dated 5 April 2000, and the Resolution dated 17 May 2000, both

issued by the NLRC.[26] In a Decision[27] dated 31 October 2001, the Court of Appeals granted the

petition, to wit:

WHEREFORE, finding merit in the petition, the same is GRANTED. The assailed Decision is MODIFIED in that both the incumbent officers and members of the Union involved in the illegal strike are declared to have lost their employment status. The award of severance compensation to the striking members of the union is consequently DELETED.

On 26 November 2001, MHEA filed a Motion for Reconsideration, which the Court of Appeals

denied in a Resolution, dated 1 August 2002.[28]

MHEA filed a petition for review on certiorari before this Court questioning the assailed

decision of the Court of Appeals dated 31 October 2000. Thereafter, the Court ordered MHEA to

submit proof that the Chairman/President of MHEA, Fernando Barles, had been duly authorized

to sign the verification of the petition and certification of forum shopping. [29] In compliance

thereof, MHEA submitted eight (8) special powers of attorney (SPAs) executed by 138 union

members authorizing Atty. Potenciano Flores and Ferdinand Barles to represent them in the

case Manila Hotel Employees Association v. NLRC, CA-G.R. S.P No. 59601.[30] Manila Hotel

sought the dismissal of the present petition on the ground that petitioner Ferdinand Barles was

not authorized to file it. Manila Hotel alleged that Barles was no longer the Chairman of MHEA

and attached a certification[31] dated 5 March 2003 of the union Secretary General, stating that

Eduardo M. Saplan was the Chairman of the union, and that he succeeded Antonio Dumpit who

held the position of Chairman from 5 July 2000 to 19 December 2002. It further alleged that

the SPAs attached to the Compliance authorizing Barles and Potenciano to represent the union

pertained to a different case, and not the present case.[32] MHEA, however, insisted that it was the

same case since it involved the same parties, facts, and issues.[33]

In the present petition, MHEA raises the following issues[34]:

I

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS AND THE RESPONDENT COMMISSION HAD ACTED WITH GRAVE ABUSE OF DISCRETION AND THEY HAD COMMITED REVERSIBLE ERRORS IN THEIR QUESTIONED DECISIONS AND RESOLUTIONS WHEN, OBVIOUSLY, BY LAW AND SETTLED JURISPRUDENCE, THE INDIVIDUAL PETITIONERS, WHO ARE MERE ORDINARY MEMBERS OF THE UNION, ARE ENTITLED TO BE REINSTATED BACK (sic) TO WORK WITHOUT LOSS OF SENIORITY OR OTHER EMPLOYEES RIGHTS AND BENEFITS AND WITH FULL BACKWAGES FROM DATE OF DISMISSAL UNTIL ACTUAL REINSTATEMENT.

IIWITH DUE RESPECT, THE COURT BELOW AND THE RESPONDENT COMMISSION HAD COMMITTED REVERSIBLE ERROR IN APPLYING THE DOCTRINE OF STRAINED RELATIONSHIP IN THE CASE AT BAR.

This petition is devoid of merit.

Before discussing the substantial issues of this case, this Court takes notice of a serious

procedural flaw. Ferdinand Barles is not authorized to sign the verification and certification of

non-forum shopping in the present case. The General Membership Resolution, dated 23

December 1998, affirmed that he was appointed as the Chairman of MHEA, in place of

Gonzalo Irabon.[35] Nevertheless, Barles failed to refute the facts that were ascertained by the

certification of the secretary-general of MHEA: that at the time this petition was filed on 26

September 2002, and even at the time the petition was filed before the Court of Appeals by

Manila Hotel - on 10 July 2000, Ferdinand Barles was no longer the Chairman of MHEA. The

certification clearly stated that Antonio Dumpit was the union Chairman from 5 July 2000 to 19

December 2000, and that he was succeeded by Eduardo Saplan. Moreover, the SPAs that were

submitted to the Court in order to prove that Barles was authorized to sign the verification and

certification of non-forum shopping in this case failed to establish that crucial

fact. The SPAs had in fact authorized Barles to represent the 138 members who signed the SPA

to represent them in a different case, Manila Hotel Employees Association v. National Labor

Relations Commission, CA-G.R. S.P No. 59601, which was raised on appeal before the Supreme

Court under G.R. No. 144879. The MHEAs assertion that there were the same parties and issues

involved in the two cases is self-defeating, not only because these are clearly two distinct cases,

but because such will likewise violate the rule against non-forum shopping.

The provisions of Supreme Court Circular Nos. 28-91 and 04-94 require a Certification

of Non-Forum Shopping in any initiatory pleading filed before the Supreme Court and the Court

of Appeals. In the case of Teoville Homeowners Association v. Ferreira,[36] the Court

emphatically underscored the need to show to the satisfaction of the Court that the person

signing the verification and certification against non-forum shopping had been specifically

authorized to do so. In other similar cases,[37] it has been ruled that it is the party-pleader, and not

the counsel, who must execute the certificate against forum shopping. The rationale for the rule

is that the counsel may be unaware of any similar actions pending with other courts on the same

matter. In this case, Ferdinand Barles was no longer an officer of the union at the time this

petition was filed, and therefore was no longer privy to the cases that may have been filed by

MHEA. Absent the specific authorization from the MHEA members that he sought to represent,

any statement he may make cannot bind the MHEA herein named. For the foregoing reasons

alone, this petition should be dismissed.

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[38] by the SOLE certifying the dispute to the

NLRC for compulsory arbitration. Worse still, the strikers failed to comply with the 11 February

2000 return-to-work Order, issued by the NLRC, despite receipt thereof. The law explicitly

prohibits such acts.

ART. 263. STRIKES, PICKETING, AND LOCKOUTS

x x x x (g) When, in his opinion there exists a labor dispute causing or likely to cause a

strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of the assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.

ART. 264. PROHIBITED ACTIVITIES (a) x x x x

No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister 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.

More to the point, the Court has consistently ruled in a long line of cases spanning several

decades that once the SOLE assumes jurisdiction over a labor dispute, such jurisdiction should

not be interfered with by the application of the coercive processes of a strike or

lockout. Defiance of the assumption order or a return-to work order by a striking employee,

whether a union officer or a member, is an illegal act and, therefore, a valid ground for loss of

employment status.[39]

The assumption of jurisdiction by the SOLE over labor disputes causing or likely to cause

a strike or lockout in an industry indispensable to the national interest is in the nature of a police

power measure.[40] In this case, the SOLE sufficiently justified the assumption order, thus:

The Hotel is engaged in the hotel and restaurant business and one of the

de luxe hotels operating in Metro Manila catering mostly to foreign tourist groups and businessmen. It serves as venue for local and international conventions and conferences. The Hotel provides employment to more than 700 employees as well

as conducts business with entities dependent on its continued operation. It also provides substantial contribution to the government coffers in the form of foreign exchange earnings and tax payments. Undoubtedly, a work stoppage thereat will adversely affect the Hotel, its employees, the industry, and the economy as a whole.

At this critical time when efforts of the present administration are

seriously focused on preserving the economic gains achieved and ensuring that existing jobs are maintained, it is the utmost concern of this Office to avoid work disruption that might result to the firms closure particularly so when an alternative mechanism obtains to resolve the parties differences.[41]

The allegation[42] that the strikers relied on their honest belief that the filing of a Motion for

Reconsideration of the Order, issued by the SOLE on 24 November 1999, entitled them to

participate in a strike, cannot be sustained. In the case of St. Scholasticas College v. Torres,[43] the Court reiterated the rule that a return-to-work order is

immediatelyexecutory notwithstanding the filing of a motion for reconsideration. It must be

strictly complied with even during the pendency of any petition questioning its validity. Citing

the case Philippine Airlines Employees Association v. Philippine Airlines, Inc.,[44] it accounted

for the rationale of this rule, as thus:

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 courts compulsory power of arbitration, and therefore must be obeyed until set aside. To say that its [return-to-work order] 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.

Returning to work in this situation is not a matter of option or voluntariness but of

obligation. The worker must return to his job together with his co-workers so the operations of

the company can be resumed and it can continue serving the public and promoting its interest.[45] This extraordinary authority given to the Secretary of Labor is aimed at arriving at a peaceful

and speedy solution to labor disputes, without jeopardizing national interests. Regardless

therefore of their motives, or the validity of their claims, the striking workers must cease and/or

desist from any and all acts that tend to, or undermine this authority of the Secretary of Labor,

once an assumption and/or certification order is issued. They cannot, for instance, ignore return-

to-work orders, citing unfair labor practices on the part of the company, to justify their action.[46]

MHEA claims that the Court should consider as a mitigating circumstance the fact that they held

the strike three months after filing their notice of strike. Such detail is irrelevant.What is crucial

is that they were apprised of the assumption order of the SOLE wherein they were enjoined from

carrying out a strike. They were again reminded to refrain from conducting a strike during the

mandatory conference on 8 February 2000. Pending the proceedings for compulsory arbitration

and for no apparent reason, they staged the strike two days later and refused to obey the return-

to-work order issued on 11 February 2000. In the case of Grand Boulevard Hotel v. Genuine

Labor Organization of Workers in Hotel, Restaurant and Allied Industries (GLOWHRAIN),[47] the Court cautioned against the unreasonable and indiscriminate exercise of the right to strike:

[T]he decision to wield the weapon of strike must therefore rest on a rational basis, free from emotionalism, unswayed by the tempers and tantrums of a few hotheads, and firmly focused on the legitimate interest of the union which should not however be antithetical to the public welfare. In every strike staged by a union, the general peace and progress of society and public welfare are involved. x x x.

MHEA alleges that the union members were not served a copy of the assumption order

issued by SOLE.[48] Such allegation is absurd considering that MHEA repeatedly alluded in its

Motion for Reconsideration dated 29 November 1999 to the assumption order, which they now

deny having received. The records also state that petitioners and their counsels received a copy

of the order on 24 November 1999 and 26 November 1999, respectively. On 8 February 2000,

two days before the strike was undertaken, MHEA officers had attended a mandatory conference

before the NLRC wherein they were advised not to take any action to exacerbate the

situation. They had even moved for the postponement of the hearing to 29 February 2000 due to

the absence of their counsel. It is only too obvious that MHEA conducted the 10 February

2000 strike knowing fully that an assumption order had been issued.

They, likewise, imply that they were not served a copy of the return-to-work order.[49] Such allegation loses credence because MHEA, in its Urgent Manifestation and Motion to Set

Aside Order dated 14 February 2000, and Motion for Reconsideration dated 11 April

2000, admitted that a copy of the return-to-work order was served on the picket lines. Records

show that their counsel was likewise served a copy thereof during the 11 February

2000 conference and that he refused to acknowledge receipt.[50] During the 16 February

2000 conference, MHEAs counsel stated that the reason that some of the strikers were unable to

return to work was the fact that the picket lines were violently dispersed a few hours after the

twenty-four hour period expired.[51] This implies that during the twenty-four hour period that they

were allowed to be fully reinstated, they failed to report to work.

MHEA cannot lean on the doctrine in the case of PNOC Dockyard and Engineering Corporation

v. National Labor Relations Commission.[52] The Court, in the aforecited case, ruled that there

was no valid service of the certification order which prohibited any strike or lockout since the

said order was served on the guard on duty instead of the president of the union who was

authorized to receive the same. As a result, the strike undertaken after the issuance of the said

order was considered legal, hence cannot effectively terminate the employment of workers who

joined the strike. In the present case, not only were the union officers apprised of the order, a

copy of the same was served on the picket lines.

MHEA, likewise, assails the Decision of the NLRC for having been determined without

conducting any preliminary hearings nor requiring the submission of position papers.[53]Again,

the records belie these statements. During the mandatory conference held on 8 March 2000, the

parties had in fact identified the issues and made stipulations of facts. [54]During the same hearing,

the Presiding Commissioner required both parties to file their position papers.[55] The parties,

however, failed to present evidence or file the position papers after they had been given ample

opportunity to do so.

MHEA propounds the theory[56] that both parties had acted in pari delicto and, therefore, the

dismissal of its members who participated in the illegal strike, was unwarranted, citing as its

precedents Philippine Airlines Inc. v. Brillantes[57] and Philippines Interfashion Inc. v. National

Labor Relations Commission.[58] In both cases, the undisputed finding that the employer was

guilty of an illegal lockout while the union conducted an illegal strike, caused the Court to order

the reinstatement of the employees who participated in the illegal strike. In Philippine Airlines

Inc. v. Brillantes,[59] the Court emphasized the unequivocal rule that participating in a strike

undertaken in defiance of the order of the SOLE results in the loss of employment status. It only

made an exception of the said case because the records clearly established that the employer,

Philippine Airlines, Inc., terminated the employment of 183 union officers and members, in

violation of the order issued by the SOLE.[60] In Philippines Interfashion Inc. v. National Labor

Relations Commission, the return-to-work order was not issued pursuant to an assumption or

certification order.[61] More importantly, the employees complied with the return-to-work order

and reported back for work within one day after receiving the same. Despite such compliance,

the employer refused to reinstate 114 employees, and, thus, such refusal on the part of the

employer amounted to an illegal lockout.[62]

In the present case, nothing in the records shows that Manila Hotel was guilty of an illegal

lockout. It readmitted the six (6) employees who complied with the return-to-work order. MHEA

made a vague reference to striking employees who complied with the return-to-work order, but

were nevertheless refused re-admittance by Manila Hotel.[63]However, they failed to even

identify these employees. There is no allegation that MHEA filed any case for illegal lock-out

against Manila Hotel. What is clearly shown by the records is that the strike or picketing was still

being conducted on 28 February 2000, way after the 24-hour deadline set by the NLRC.[64] Thus,

it is obvious that applying the inpari delicto doctrine pronounced in Philippine Airlines Inc.

v. Brillantes[65] and Philippines Interfashion Inc. v. National Labor Relations Commission[66] to

this case would be improper and without basis.

It would not be amiss to reiterate the Courts pronouncement in the case Reliance Surety &

Insurance Co., Inc. v. National Labor Relations Commission[67]:

As a general rule, the sympathy of the Court is on the side of the laboring classes, not only because the Constitution imposes sympathy but because of the one-sided relation between labor and capital. The Court must take care, however, that in the contest between labor and capital, the results achieved are fair and in conformity with the rules. x x x.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED. This

Court AFFIRMS the assailed Decision of the Court of Appeals, promulgated on 31 October

2001, declaring the strike conducted by the MHEA on 10 February 1999 as illegal and, thus,

resulting in the loss of employment status of the union officers and members who participated in

the said strike. No costs.

SO ORDERED.

• Payroll reinstatement in lieu of actual reinstatement upon assumption of jurisdiction

NUWHRAIN-Dusit Hotel Nikko Chapter vs. CA – Nov. 11, 2008, 570 S 598

NATIONAL UNION OF WORKERS IN THE HOTEL RESTAURANT AND ALLIED INDUSTRIES (NUWHRAIN-APL-IUF) DUSIT HOTEL NIKKO CHAPTER,Petitioner,

- versus -

THE HONORABLE COURT OF APPEALS (Former Eighth Division), THE NATIONAL LABOR RELATIONS COMMISSION (NLRC), PHILIPPINE HOTELIERS INC., owner and operator of DUSIT HOTEL NIKKO and/or CHIYUKI FUJIMOTO, and ESPERANZA V. ALVEZ,Respondents.x----------------------------------------x

NUWHRAIN-DUSIT HOTEL NIKKO CHAPTER,

Petitioner,

-versus-

SECRETARY OF LABOR AND EMPLOYMENT and PHILIPPINE HOTELIERS, INC.,Respondents.

G.R. No. 163942

Present:

QUISUMBING, J., Chairperson,CARPIO MORALES,VELASCO, JR.,REYES,* andLEONARDO-DE CASTRO,* JJ.

G.R. No. 166295

Promulgated:

November 11, 2008

x-----------------------------------------------------------------------------------------xD E C I S I O N

VELASCO, JR., J.: In G.R. No. 163942, the Petition for Review on Certiorari under Rule 45 of the National Union of Workers in the Hotel Restaurant and Allied Industries Dusit Hotel Nikko Chapter (Union) seeks to set aside the January 19, 2004 Decision[1] and June 1, 2004 Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No. 76568 which affirmed the October 9, 2002 Decision[3] of the National Labor Relations Commission (NLRC) in NLRC NCR CC No. 000215-02. In G.R. No. 166295, the Petition for Certiorari under Rule 65 of the Union seeks to nullify the May 6, 2004 Decision[4] and November 25, 2004 Resolution[5] of the CA in CA-G.R. SP No. 70778 which affirmed the January 31, 2002[6] and March 15, 2002[7] Orders of the Secretary of Labor and Employment, Patricia A. Sto. Tomas (Secretary).

Evolution of the Present Petitions The Union is the certified bargaining agent of the regular rank-and-file employees of Dusit Hotel Nikko (Hotel), a five star service establishment owned and operated by Philippine Hoteliers, Inc. located in Makati City. Chiyuki Fuijimoto and Esperanza V. Alvez are impleaded in their official capacities as the Hotels General Manager and Director of Human Resources, respectively. On October 24, 2000, the Union submitted its Collective Bargaining Agreement (CBA) negotiation proposals to the Hotel. As negotiations ensued, the parties failed to arrive at mutually acceptable terms and conditions. Due to the bargaining deadlock, the Union, on December 20, 2001, filed a Notice of Strike on the ground of the bargaining deadlock with the National Conciliation and Mediation Board (NCMB), which was docketed as NCMB-NCR-NS-12-369-01. Thereafter, conciliation hearings were conducted which proved unsuccessful. Consequently, a Strike Vote[8] was conducted by the Union on January 14, 2002 on which it was decided that the Union would wage a strike. Soon thereafter, in the afternoon of January 17, 2002, the Union held a general assembly at its office located in the Hotels basement, where some members sported closely cropped hair or cleanly shaven heads. The next day, or on January 18, 2002, more male Union members came to work sporting the same hair style. The

Hotel prevented these workers from entering the premises claiming that they violated the Hotels Grooming Standards.

In view of the Hotels action, the Union staged a picket outside the Hotel premises. Later, other workers were also prevented from entering the Hotel causing them to join the picket. For this reason the Hotel experienced a severe lack of manpower which forced them to temporarily cease operations in three restaurants.

Subsequently, on January 20, 2002, the Hotel issued notices to Union

members, preventively suspending them and charging them with the following offenses: (1) violation of the duty to bargain in good faith; (2) illegal picket; (3) unfair labor practice; (4) violation of the Hotels Grooming Standards; (5) illegal strike; and (6) commission of illegal acts during the illegal strike. The next day, the Union filed with the NCMB a second Notice of Strike on the ground of unfair labor practice and violation of Article 248(a) of the Labor Code on illegal lockout, which was docketed as NCMB-NCR-NS-01-019-02. In the meantime, the Union officers and members submitted their explanations to the charges alleged by the Hotel, while they continued to stage a picket just inside the Hotels compound.

On January 26, 2002, the Hotel terminated the services of twenty-nine (29) Union officers and sixty-one (61) members; and suspended eighty-one (81) employees for 30 days, forty-eight (48) employees for 15 days, four (4) employees for 10 days, and three (3) employees for five days. On the same day, the Union declared a strike. Starting that day, theUnion engaged in picketing the premises of the Hotel. During the picket, the Union officials and members unlawfully blocked the ingress and egress of the Hotel premises. Consequently, on January 31, 2002, the Union filed its third Notice of Strike with the NCMB which was docketed as NCMB-NCR-NS-01-050-02, this time on the ground of unfair labor practice and union-busting.

On the same day, the Secretary, through her January 31, 2002 Order, assumed jurisdiction over the labor dispute and certified the case to the NLRC for compulsory arbitration, which was docketed as NLRC NCR CC No. 000215-02. The Secretarys Order partly reads:

WHEREFORE, in order to have a complete determination of the bargaining deadlock and the other incidents of the dispute, this Office hereby consolidates the two Notices of Strike NCMB-NCR-NS-12-369-01 and NCMB-NCR-NS-01-019-02 and CERTIFIES the entire labor dispute covered by these Notices and the

intervening events, to the NATIONAL LABOR RELATIONS COMMISSION for compulsory arbitration pursuant to Article 263 (g) of the Labor Code, as amended, under the following terms: x x x x d. the Hotel is given the option, in lieu of actual reinstatement, to

merely reinstate the dismissed or suspended workers in the payroll in light of the special circumstances attendant to their reinstatement;

x x x x

SO ORDERED. (Emphasis added.)

Pursuant to the Secretarys Order, the Hotel, on February 1, 2002, issued an

Inter-Office Memorandum,[9] directing some of the employees to return to work, while advising others not to do so, as they were placed under payroll reinstatement.

Unhappy with the Secretarys January 31, 2002 Order, the Union moved for

reconsideration, but the same was denied per the Secretarys subsequent March 15, 2002 Order. Affronted by the Secretarys January 31, 2002 and March 15, 2002 Orders, the Union filed a Petition for Certiorari with the CA which was docketed as CA-G.R. SP No. 70778. Meanwhile, after due proceedings, the NLRC issued its October 9, 2002 Decision in NLRC NCR CC No. 000215-02, in which it ordered the Hotel and the Union to execute a CBA within 30 days from the receipt of the decision. The NLRC also held that the January 18, 2002 concerted action was an illegal strike in which illegal acts were committed by the Union; and that the strike violated the No Strike, No Lockout provision of the CBA, which thereby caused the dismissal of 29 Union officers and 61 Union members. The NLRC ordered the Hotel to grant the 61 dismissed Union members financial assistance in the amount of months pay for every year of service or their retirement benefits under their retirement plan whichever was higher. The NLRC explained that the strike which occurred on January 18, 2002 was illegal because it failed to comply with the mandatory30-day cooling-off period[10] and the seven-day strike ban,[11] as the strike occurred only 29 days after the submission of the notice of strike on December 20, 2001 and only four days after the submission of the strike vote on January 14, 2002. The NLRC also ruled that even if the Union had complied with the temporal requirements mandated by law, the strike would nonetheless be declared illegal because it was attended by illegal acts committed by the Union officers and members.

The Union then filed a Motion for Reconsideration of the NLRCs Decision which was denied in the February 7, 2003 NLRC Resolution. Unfazed, the Union filed a Petition for Certiorari under Rule 65 with the CA, docketed as CA-G.R. SP No. 76568, and assailed both the October 9, 2002 Decision and the February 7, 2003 Resolution of the NLRC. Soon thereafter, the CA promulgated its January 19, 2004 Decision in CA-G.R. SP No. 76568 which dismissed the Unions petition and affirmed the rulings of the NLRC. The CA ratiocinated that the Union failed to demonstrate that the NLRC committed grave abuse of discretion and capriciously exercised its judgment or exercised its power in an arbitrary and despotic manner.

For this reason, the Union filed a Motion for Reconsideration which the CA, in its June 1, 2004 Resolution, denied for lack of merit. In the meantime, the CA promulgated its May 6, 2004 Decision in CA-G.R. SP No. 70778 which denied due course to and consequently dismissed the Unions petition. The Union moved to reconsider the Decision, but the CA was unconvinced and denied the motion for reconsideration in its November 25, 2004 Resolution. Thus, the Union filed the present petitions. The Union raises several interwoven issues in G.R. No. 163942, most eminent of which is whether the Union conducted an illegal strike. The issues presented for resolution are:

-A-

WHETHER OR NOT THE UNION, THE 29 UNION OFFICERS AND 61 MEMBERS MAY BE ADJUDGED GUILTY OF STAGING AN ILLEGAL STRIKE ON JANUARY 18, 2002 DESPITE RESPONDENTS ADMISSION THAT THEY PREVENTED SAID OFFICERS AND MEMBERS FROM REPORTING FOR WORK FOR ALLEGED VIOLATION OF THE HOTELS GROOMING STANDARDS

-B-

WHETHER OR NOT THE 29 UNION OFFICERS AND 61 MEMBERS MAY VALIDLY BE DISMISSED AND MORE THAN

200 MEMBERS BE VALIDLY SUSPENDED ON THE BASIS OF FOUR (4) SELF-SERVING AFFIDAVITS OF RESPONDENTS

-C-

WHETHER OR NOT RESPONDENTS IN PREVENTING UNION OFFICERS AND MEMBERS FROM REPORTING FOR WORK COMMITTED AN ILLEGAL LOCK-OUT[12]

In G.R. No. 166295, the Union solicits a riposte from this Court on whether

the Secretary has discretion to impose payroll reinstatement when he assumes jurisdiction over labor disputes.

The Courts Ruling

The Court shall first dispose of G.R. No. 166295. According to the Union, there is no legal basis for allowing payroll reinstatement in lieu of actual or physical reinstatement. As argued, Art. 263(g) of the Labor Code is clear on this point. The Hotel, on the other hand, claims that the issue is now moot and any decision would be impossible to execute in view of the Decision of the NLRC which upheld the dismissal of the Union officers and members. The Unions position is untenable. The Hotel correctly raises the argument that the issue was rendered moot when the NLRC upheld the dismissal of the Union officers and members. In order, however, to settle this relevant and novel issue involving the breadth of the power and jurisdiction of the Secretary in assumption of jurisdiction cases, we now decide the issue on the merits instead of relying on mere technicalities.We held in University of Immaculate Concepcion, Inc. v. Secretary of Labor:

With respect to the Secretarys Order allowing payroll reinstatement instead of actual reinstatement for the individual respondents herein, an amendment to the previous Orders issued by her office, the same is usually not allowed. Article 263(g) of the Labor Code aforementioned states that all workers must immediately return to work and all employers must readmit all of them under the same terms and conditions prevailing before the strike or lockout. The phrase under the same terms

and conditions makes it clear that the norm is actual reinstatement. This is consistent with the idea that any work stoppage or slowdown in that particular industry can be detrimental to the national interest.[13]

Thus, it was settled that in assumption of jurisdiction cases, the Secretary should impose actual reinstatement in accordance with the intent and spirit of Art. 263(g) of the Labor Code. As with most rules, however, this one is subject to exceptions. We held in Manila Diamond Hotel Employees Union v. Court of Appeals that payroll reinstatement is a departure from the rule, and special circumstances which make actual reinstatement impracticable must be shown. [14] In one case, payroll reinstatement was allowed where the employees previously occupied confidential positions, because their actual reinstatement, the Court said, would be impracticable and would only serve to exacerbate the situation. [15] In another case, this Court held that the NLRC did not commit grave abuse of discretion when it allowed payroll reinstatement as an option in lieu of actual reinstatement for teachers who were to be reinstated in the middle of the first term.[16] We held that the NLRC was merely trying its best to work out a satisfactory ad hoc solution to a festering and serious problem.[17]

The peculiar circumstances in the present case validate the Secretarys decision to order payroll reinstatement instead of actual reinstatement. It is obviously impracticable for the Hotel to actually reinstate the employees who shaved their heads or cropped their hair because this was exactly the reason they were prevented from working in the first place.Further, as with most labor disputes which have resulted in strikes, there is mutual antagonism, enmity, and animosity between the union and the management. Payroll reinstatement, most especially in this case, would have been the only avenue where further incidents and damages could be avoided. Public officials entrusted with specific jurisdictions enjoy great confidence from this Court. The Secretary surely meant only to ensure industrial peace as she assumed jurisdiction over the labor dispute. In this case, we are not ready to substitute our own findings in the absence of a clear showing of grave abuse of discretion on her part.

The issues raised in G.R. No. 163942, being interrelated, shall be discussed concurrently.

To be determined whether legal or not are the following acts of the Union: (1) Reporting for work with their bald or cropped hair style on January 18,

2002; and

(2) The picketing of the Hotel premises on January 26, 2002. The Union maintains that the mass picket conducted by its officers and

members did not constitute a strike and was merely an expression of their grievance resulting from the lockout effected by the Hotel management. On the other hand, the Hotel argues that the Unions deliberate defiance of the company rules and regulations was a concerted effort to paralyze the operations of the Hotel, as the Union officers and members knew pretty well that they would not be allowed to work in their bald or cropped hair style. For this reason, the Hotel argues that the Union committed an illegal strike on January 18, 2002 and on January 26, 2002.

We rule for the Hotel. Art. 212(o) of the Labor Code defines a strike as any temporary stoppage of

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

In Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National

Labor Relations Commission, we cited the various categories of an illegal strike, to wit:

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.[18]

With the foregoing parameters as guide and the following grounds as basis, we hold that the Union is liable for conducting an illegal strike for the following reasons:

First, the Unions violation of the Hotels Grooming Standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the Hotel and was, therefore, not a protected action. The appearances of the Hotel employees directly reflect the character and well-being of the Hotel, being a five-star hotel that provides service to top-notch clients. Being bald or having cropped hair per se does not evoke negative or unpleasant feelings. The reality that a substantial number of employees assigned to the food and beverage outlets of the Hotel with full heads of hair suddenly decided to come to work bald-headed or with cropped hair, however, suggests that something is amiss and insinuates a sense that something out of the ordinary is afoot. Obviously, the Hotel does not need to advertise its labor problems with its clients. It can be gleaned from the records before us that the Union officers and members deliberately and in apparent concert shaved their heads or cropped their hair. This was shown by the fact that after coming to work on January 18, 2002, some Union members even had their heads shaved or their hair cropped at the Union office in the Hotels basement. Clearly, the decision to violate the company rule on grooming was designed and calculated to place the Hotel management on its heels and to force it to agree to the Unions proposals.In view of the Unions collaborative effort to violate the Hotels Grooming Standards, it succeeded in forcing the Hotel to choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work, even if it had to cease operations in affected departments or service units, which in either way would disrupt the operations of the Hotel. This Court is of the opinion, therefore, that the act of the Union was not merely an expression of their grievance or displeasure but, indeed, a calibrated and calculated act designed to inflict serious damage to the Hotels finances or its reputation. Thus, we hold that the Unions concerted violation of the Hotels Grooming Standards which resulted in the temporary cessation and disruption of

the Hotels operations is an unprotected act and should be considered as an illegal strike.

Second, the Unions concerted action which disrupted the Hotels operations clearly violated the CBAs No Strike, No Lockout provision, which reads:

ARTICLE XXII NO STRIKE/WORK STOPPAGE AND LOCKOUT SECTION 1. No Strikes The Union agrees that there shall be no strikes, walkouts, stoppage or slow-down of work, boycott, refusal to handle accounts, picketing, sit-down strikes, sympathy strikes or any other form of interference and/or interruptions with any of the normal operations of the HOTEL during the life of this Agreement.

The facts are clear that the strike arose out of a bargaining deadlock in the CBA negotiations with the Hotel. The concerted action is an economic strike upon which the afore-quoted no strike/work stoppage and lockout prohibition is squarely applicable and legally binding.[19]

Third, the Union officers and members concerted action to shave their heads

and crop their hair not only violated the Hotels Grooming Standards but also violated the Unions duty and responsibility to bargain in good faith. By shaving their heads and cropping their hair, the Union officers and members violated then Section 6, Rule XIII of the Implementing Rules of Book V of the Labor Code.[20] This rule prohibits the commission of any act which will disrupt or impede the early settlement of the labor disputes that are under conciliation. Since the bargaining deadlock is being conciliated by the NCMB, the Unions action to have their officers and members heads shaved was manifestly calculated to antagonize and embarrass the Hotel management and in doing so effectively disrupted the operations of the Hotel and violated their duty to bargain collectively in good faith.

Fourth, the Union failed to observe the mandatory 30-day cooling-off

period and the seven-day strike ban before it conducted the strike on January 18, 2002. The NLRC correctly held that the Union failed to observe the mandatory periods before conducting or holding a strike. Records reveal that the Union filed its Notice of Strike on the ground of bargaining deadlock on December 20, 2001. The 30-day cooling-off period should have been until January 19, 2002. On

top of that, the strike vote was held on January 14, 2002 and was submitted to the NCMB only on January 18, 2002; therefore, the 7-day strike ban should have prevented them from holding a strike until January 25, 2002. The concerted action committed by the Union on January 18, 2002 which resulted in the disruption of the Hotels operations clearly violated the above-stated mandatory periods.

Last, the Union committed illegal acts in the conduct of its strike. The

NLRC ruled that the strike was illegal since, as shown by the pictures [21] presented by the Hotel, the Union officers and members formed human barricades and obstructed the driveway of the Hotel. There is no merit in the Unions argument that it was not its members but the Hotels security guards and the police officers who blocked the driveway, as it can be seen that the guards and/or police officers were just trying to secure the entrance to the Hotel. The pictures clearly demonstrate the tense and highly explosive situation brought about by the strikers presence in the Hotels driveway.

Furthermore, this Court, not being a trier of facts, finds no reason to alter or

disturb the NLRC findings on this matter, these findings being based on substantial evidence and affirmed by the CA.[22] Factual findings of labor officials, who are deemed to have acquired expertise in matters within their respective jurisdictions, are generally accorded not only respect but even finality, and bind us when supported by substantial evidence.[23] Likewise, we are not duty-bound to delve into the accuracy of the factual findings of the NLRC in the absence of clear showing that these were arrived at arbitrarily and/or bereft of any rational basis.[24]

What then are the consequent liabilities of the Union officers and members

for their participation in the illegal strike? Regarding the Union officers and members liabilities for their participation

in the illegal picket and strike, Art. 264(a), paragraph 3 of the Labor Code provides that [a]ny 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 a strike may be declared to have lost his employment status x x x. The law makes a distinction between union officers and mere union members. Union officers may be validly terminated from employment for their participation in an illegal strike, while union members have to participate in and commit illegal acts for them to lose their employment status. [25] Thus, it is necessary for the company to adduce proof of the participation of the striking employees in the commission of illegal acts during the strikes.[26]

Clearly, the 29 Union officers may be dismissed pursuant to Art. 264(a), par. 3 of the Labor Code which imposes the penalty of dismissal on any union officer who knowingly participates in an illegal strike. We, however, are of the opinion that there is room for leniency with respect to the Union members. It is pertinent to note that the Hotel was able to prove before the NLRC that the strikers blocked the ingress to and egress from the Hotel. But it is quite apparent that the Hotel failed to specifically point out the participation of each of the Union members in the commission of illegal acts during the picket and the strike. For this lapse in judgment or diligence, we are constrained to reinstate the 61 Union members. Further, we held in one case that union members who participated in an illegal strike but were not identified to have committed illegal acts are entitled to be reinstated to their former positions but without backwages.[27] We then held in G & S Transport Corporation v. Infante:

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, as affirmed in Philippine Diamond Hotel and Resort v. Manila Diamond Hotel Employees Union, 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.[28]

In this light, we stand by our recent rulings and reinstate the 61 Union

members without backwages. WHEREFORE, premises considered, the CAs May 6, 2004 Decision in CA-G.R. SP No. 70778 is hereby AFFIRMED.

The CAs January 19, 2004 Decision in CA-G.R. SP No. 76568 is hereby SET ASIDE. The October 9, 2002 Decision of the NLRC in NLRC NCR CC No. 000215-02 is hereby AFFIRMED with MODIFICATIONS, as follows:

The 29 Union officials are hereby declared to have lost their employment status, to wit:

1. LEO ANTONIO ATUTUBO2. EDWIN E. BALLESTEROS3. LORETTA DIVINA DE LUNA4. INISUSAN DE VELEZ5. DENNIS HABER6. MARITES HERNANDEZ7. BERNARD HUGO8. NORZAMIA INTAL9. LAURO JAVIER10. SHANE LAUZ11. MAY BELEN LEANO12. EDGAR LINGHON13. MILAGROS LOPEZ14. JOSE MUZONES15. RAY NERVA16. JESUS NONAN17. MARLYN OLLERO18. CATHY ORDUNA19. REYNALDO RASING20. JUSTO TABUNDA21. BARTOLOME TALISAYON22. JUN TESORO23. LYNDON TESORO24. SALVADOR TIPONES25. SONNY UY26. WILFREDO VALLES, JR.27. MEL VILLAHUCO28. EMMA Q. DANAO29. JORDAN ALEJANDRO

The 61 Union members are hereby REINSTATED to their former positions

without backwages:

1. DANILO AGUINALDO2. CLARO ABRANTE3. FELIX ARRIESGADO4. DAN BAUTISTA5. MA. THERESA BONIFACIO6. JUAN BUSCANO7. ELY CHUA8. ALLAN DELAGON9. FRUMENCIO DE LEON

10. ELLIE DEL MUNDO11. EDWIN DELOS CIENTOS12. SOLOMON DIZON13. YLOTSKI DRAPER14. ERLAND COLLANTES15. JONAS COMPENIDO16. RODELIO ESPINUEVA17. ARMANDO ESTACIO18. SHERWIN FALCES19. JELA FRANZUELA20. REY GEALOGO21. ALONA GERNOMINO22. VINCENT HEMBRADOR23. ROSLYN IBARBIA24. JAIME IDIOMA, JR.25. OFELIA LLABAN26. RENATON LUZONG27. TEODULO MACALINO28. JAKE MACASAET29. HERNANIE PABILONIA30. HONORIO PACIONE31. ANDREA VILLAFUERTE32. MARIO PACULAN33. JULIO PAJINAG34. JOSELITO PASION35. VICENTE PASIOLAN36. HAZEL PENA37. PEDRO POLLANTE38. EDUARDO RAMOS39. IMELDA RASIN40. DELFIN RAZALAN41. EVANGELINE REYES42. RODOLFO REYES43. BRIGILDO RUBIO44. RIO SALCEDO45. JUANITO SANCHEZ46. MA. THERESA SANCHEZ47. DONATO SAN AGUSTIN48. RICARDO SOCORRO49. VALERIO SOLIS50. DOMINADOR SUAREZ51. ORLANDO TABUGOCA52. HELEN TALEON53. ROBERT TANEGRA54. LOURDES TAYAG55. ROLANDO TOLENTINO

56. REYNALDO TRESNADO57. RICHARD SABLADA58. MAE YAP-DIANGCO59. GILBERTO VEDASTO60. DOMINGO VIDAROZAGA61. DAN VILLANUEVA

In view of the possibility that the Hotel might have already hired regular

replacements for the afore-listed 61 employees, the Hotel may opt to pay SEPARATION PAYcomputed at one (1) months pay for every year of service in lieu of REINSTATEMENT, a fraction of six (6) months being considered one year of service. SO ORDERED.

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Labor Relations