G.R. No. 168569 October 5, 2007

SAN MIGUEL FOODS, INC., petitioner,vs.SAN MIGUEL CORPORATION EMPLOYEES UNION-PTWGO, respondent.

The present petition for review on certiorari raises the issue of whether respondents complaint is one for unfair labor practice (ULP) over which a Labor Arbiter has jurisdiction.

At the time material to the case, respondent, San Miguel Corporation Employees Union PTWGO (the Union), was the sole bargaining agent of all the monthly paid employees of petitioner San Miguel Foods, Incorporated (SMFI). On November 9, 1992, some employees of SMFIs Finance Department, through the Union represented by Edgar Moraleda, brought a grievance against Finance Manager Gideon Montesa (Montesa), for "discrimination, favoritism, unfair labor practices, not flexible [sic], harassment, promoting divisiveness and sectarianism, etc.,"1 before SMFI Plant Operations Manager George Nava in accordance with Step 1 of the grievance machinery adopted in the Collective Bargaining Agreement (CBA) forged by SMFI and the Union.

The Union sought the "1. review, evaluat[ion] & upgrad[ing of] all Finance staff and 2. promot[ion of] G.Q. Montesa to other SMC affiliate[s] & subsidiaries."2

At the grievance meeting held on January 14, 1993, SMFI informed the Union that it planned to address the grievance through a "work management review" which would be completed by March 1993, hence, it asked the finance personnel to give it their attention and cooperation.

The "work management review" was not completed by March 1993, however, prompting the Union to, on March 26, 1993, elevate the grievance to Step 2.3

Almost nine months after the grievance meeting was held or on October 6, 1993, SMFI rendered a "Decision on Step 1 Grievance" stating that it was still in the process of completing the "work management review,"4 hence, the Unions requests could not be granted.

The Union thereupon filed a complaint on October 20, 1993 before the National Labor Relations Commission (NLRC), Arbitration Branch, against SMFI,5 its President Amadeo P. Veloso, and its Finance Manager Montesa for "unfair labor practice, [and] unjust discrimination in matters of promotion . . . "6 It prayed that SMFI et al. be ordered to promote the therein named employees "with the corresponding pay increases or adjustment including payment of salary differentials plus attorneys fees[,] and to cease and desist from committing the same unjust discrimination in matters of promotion."7

Instead of filing a position paper as required by the Labor Arbiter, SMFI et al. filed a motion to dismiss,8 contending that the issues raised in the complaint were grievance issues and, therefore, "should be resolved in the grievance machinery provided in [the] collective bargaining agreements [sic] of the parties or in the mandated provision of voluntary arbitration which is also provided in the CBA."9 The Union opposed the motion to dismiss.

In its Position Paper, the Union specified acts of ULP of SMFI et al. under Article 248, paragraphs (e) and (i) of the Labor Code10 which Article reads:

Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practices:

x x x x

(e) To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. x x x

x x x x

(i) To violate a collective bargaining agreement.

x x x x

By Order of February 18, 1994, the Labor Arbiter granted SMFI et al.s motion to dismiss and ordered the remand of the case to the grievance machinery for completion of the proceedings.11 The Union appealed the said order to the NLRC by "Motion for Reconsideration/Appeal"12 which its Second Division granted and accordingly ordered the Labor Arbiter to continue the proceedings on the Unions complaint.13 SMFI et al. filed a Motion for Reconsideration of the NLRC order but it was denied, hence, they filed a petition for certiorari with this Court. After the parties and the Solicitor General had filed their respective pleadings, this Court, by Resolution of January 25, 1999, referred the case to the Court of Appeals pursuant to St. Martin Funeral Homes v. NLRC.14

By Decision of July 31, 2002,15 the Court of Appeals denied SMFI et al.s petition for certiorari, it holding that the Labor Arbiter has jurisdiction over the complaint of the Union, they having violated the seniority rule under the CBA by appointing and promoting certain employees which amounted to a ULP.16

Before this Court, SMFI lodged the present petition for review on certiorari, faulting the appellate court in

A.

. . . FINDING THAT THE LABOR ARBITER HAS JURISDICTION OVER THE COMPLAINT OF RESPONDENT UNION

B.

. . . FINDING THAT SMFIS ALLEGED VIOLATION OF THE CBA CONSTITUTES UNFAIR LABOR PRACTICE.

The jurisdiction of Labor Arbiters, enumerated in Article 217 of the Labor Code, includes complaints for ULP.

SMFI argues that the allegations in the Unions complaint filed before the Labor Arbiter do not establish a cause of action for ULP, the Union having merely contended that SMFI was guilty thereof without specifying the ultimate facts upon which it was based. It cites Section 1 of Rule 8 of the Rules of Court as applying suppletorily to the proceedings before the Labor Arbiter, which Section reads:

Section 1. In general. Every pleading shall contain in a methodical and logical form, a plain concise and direct statement of the ultimate facts on which the party pleading relies for his claim . . .

Alleging that the Union failed to comply with this Rule, SMFI concludes that the Labor Arbiter has no jurisdiction over its complaint.

A perusal of the complaint shows that, indeed, the particular acts of ULP alleged to have been committed by SMFI were not specified; neither were the ultimate facts in support thereof. In its Position Paper, however, the Union detailed the particular acts of ULP attributed to SMFI and the ultimate facts in support thereof.

Section 7, Rule V of the New Rules of Procedure of the NLRC provides:

Nature of Proceedings. The proceedings before the Labor Arbiter shall be non-litigious in nature. Subject to the requirements of due process, the technicalities of law and procedure and the rules obtaining in the courts of law shall not strictly apply thereto. The Labor Arbiter may avail himself of all reasonable means to ascertain the facts of the controversy speedily, including ocular inspection and examination of well-informed persons. (Emphasis and underscoring supplied)

Section 1 of Rule 8 of the Rules of Court should thus not be strictly applied to a case filed before a Labor Arbiter. In determining jurisdiction over a case, allegations made in the complaint, as well as those in the position paper, may thus be considered.

As stated above, the Union, in its Position Paper, mentioned the particular acts of ULP and the ultimate facts in support thereof. Thus it alleged:

This is a complaint for unfair labor practices pursuant to Article 248 (e) and (i) of the Labor Code, as amended, which reads:

Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practices:

x x x x

(e) To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization.

x x x x

(i) to violate a collective bargaining agreement.

and which was committed by herein respondents as follows:

1. large scale and wanton unjust discrimination in matters of promotion, particularly upon the following members of complainant: Ellen Ventura, Julie Geronimo, Ronnie Cruz, Rita Calasin, Romy de Peralta, Malou Alano, And E. M. Moraleda, all assigned with the Finance Department or respondent SMFI.

2. gross and blatant violations by respondent SMFI of Section 5, Article III (Job Security) and Section 4, Article VIII (Grievance Machinery) of the current collective bargaining agreement (CBA) between complainant and respondent SMFI, which provisions of said CBA are hereunder quoted for easy reference. (Emphasis and underscoring supplied)

On the questioned promotions, the Union did not allege that they were done to encourage or discourage membership in a labor organization. In fact, those promoted were members of the complaining Union. The promotions do not thus amount to ULP under Article 248(e) of the Labor Code.

As for the alleged ULP committed under Article 248(i), for violation of a CBA, this Article is qualified by Article 261 of the Labor Code, the pertinent portion of which latter Article reads:

x x x violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. (Emphasis and underscoring supplied)

Silva v. NLRC instructs that for a

ULP case to be cognizable by the Labor Arbiter, and the NLRC to exercise its appellate jurisdiction, the allegations in the complaint should show prima facie the concurrence of two things, namely: (1) gross violation of the CBA; AND (2) the violation pertains to the economic provisions of the CBA.17 (Emphasis and underscoring supplied)

As reflected in the above-quoted allegations of the Union in its Position Paper, the Union charges SMFI to have violated the grievance machinery provision in the CBA. The grievance machinery provision in the CBA is not an economic provision, however, hence, the second requirement for a Labor Arbiter to exercise jurisdiction of a ULP is not present.

The Union likewise charges SMFI, however, to have violated the Job Security provision in the CBA, specifically the seniority rule, in that SMFI "appointed less senior employees to positions at its Finance Department, consequently intentionally by-passing more senior employees who are deserving of said appointment."

Article 4 of the Labor Code provides that "All doubts in the implementation and interpretation of the provisions of this Code, including implementing rules and regulations, shall be resolved in favor of labor." Since the seniority rule in the promotion of employees has a bearing on salary and benefits, it may, following a liberal construction of Article 261 of the Labor Code, be considered an "economic provision" of the CBA.

As above-stated, the Union charges SMFI to have promoted less senior employees, thus bypassing others who were more senior and equally or more qualified. It may not be seriously disputed that this charge is a gross or flagrant violation of the seniority rule under the CBA, a ULP over which the Labor Arbiter has jurisdiction.

SMFI, at all events, questions why the Court of Appeals came out with a finding that it (SMFI) disregarded the seniority rule under the CBA when its petition before said court merely raised a question of jurisdiction. The Court of Appeals having affirmed the NLRC decision finding that the Labor Arbiter has jurisdiction over the Unions complaint and thus remanding it to the Labor Arbiter for continuation of proceedings thereon, the appellate courts said finding may be taken to have been made only for the purpose of determining jurisdiction.

WHEREFORE, the Petition is DENIED.2) G.R. No. 178647 February 13, 2009

GENERAL SANTOS COCA-COLA PLANT FREE WORKERS UNION-TUPAS, Petitioner,vs.COCA-COLA BOTTLERS PHILS., INC. (GENERAL SANTOS CITY), THE COURT OF APPEALS and THE NATIONAL LABOR RELATIONS COMMISSION, Respondents.

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules on Civil Procedure, petitioner General Santos Coca-Cola Plant Free Workers Union-Tupas (Union) is seeking the reversal of the April 18, 2006 Decision1 and May 30, 2007 Resolution2 of the Court of Appeals in CA-G.R. SP No. 80916. The CA affirmed the January 31, 2003 and August 29, 2003 Resolutions3 of the National Labor Relations Commission (NLRC) in favor of respondent Coca-Cola Bottlers Phil., Inc. (CCBPI).

Sometime in the late 1990s, CCBPI experienced a significant decline in profitability due to the Asian economic crisis, decrease in sales, and tougher competition. To curb the negative effects on the company, it implemented three (3) waves of an Early Retirement Program.4 Meanwhile, there was an inter-office memorandum sent to all of CCBPIs Plant Human Resources Managers/Personnel Officers, including those of the CCBPI General Santos Plant (CCBPI Gen San) mandating them to put on hold "all requests for hiring to fill in vacancies in both regular and temporary positions in [the] Head Office and in the Plants." Because several employees availed of the early retirement program, vacancies were created in some departments, including the production department of CCBPI Gen San, where members of petitioner Union worked. This prompted petitioner to negotiate with the Labor Management Committee for filling up the vacancies with permanent employees. No resolution was reached on the matter.5

Faced with the "freeze hiring" directive, CCBPI Gen San engaged the services of JLBP Services Corporation (JLBP), a company in the business of providing labor and manpower services, including janitorial services, messengers, and office workers to various private and government offices.6

On January 21, 2002, petitioner filed with the National Conciliation and Mediation Board (NCMB), Regional Branch 12, a Notice of Strike on the ground of alleged unfair labor practice committed by CCBPI Gen San for contracting-out services regularly performed by union members ("union busting"). After conciliation and mediation proceedings before the NCMB, the parties failed to come to an amicable settlement. On July 3, 2002, CCBPI filed a Petition for Assumption of Jurisdiction with the Office of the Secretary of Labor and Employment. On July 26, 2002, the Secretary of Labor issued an Order enjoining the threatened strike and certifying the dispute to the NLRC for compulsory arbitration.71avvphi1

In a Resolution8 dated January 31, 2003, the NLRC ruled that CCBPI was not guilty of unfair labor practice for contracting out jobs to JLBP. The NLRC anchored its ruling on the validity of the "Going-to-the-Market" (GTM) system implemented by the company, which called for restructuring its selling and distribution system, leading to the closure of certain sales offices and the elimination of conventional sales routes. The NLRC held that petitioner failed to prove by substantial evidence that the system was meant to curtail the right to self-organization of petitioners members. Petitioner filed a motion for reconsideration, which the NLRC denied in a Resolution9 dated August 29, 2003. Hence, petitioner filed a Petition for Certiorari before the CA.

The CA issued the assailed Decision10 on April 18, 2006 upholding the NLRCs finding that CCBPI was not guilty of unfair labor practice. The CA based its decision on the validity of CCBPIs contracting out of jobs in its production department. It held that the contract between CCBPI and JLBP did not amount to labor-only contracting. It found that JLBP was an independent contractor and that the decision to contract out jobs was a valid exercise of management prerogative to meet exigent circumstances. On the other hand, petitioner failed to adduce evidence to prove that contracting out of jobs by the company resulted in the dismissal of petitioners members, prevented them from exercising their right to self-organization, led to the Unions demise or that their group was singled out by the company. Consequently, the CA declared that CCBPI was not guilty of unfair labor practice.

Its motion for reconsideration having been denied,11 petitioner now comes to this Court seeking the reversal of the CA Decision.

The petition is bereft of merit. Hence, we deny the Petition.

Under Rule 45 of the Revised Rules on Civil Procedure, only questions of law may be raised in a Petition for Review on Certiorari.12

There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence. The resolution of the issue must rest solely on what the law provides on a given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. If the query requires a re-evaluation of the credibility of witnesses, or the existence or relevance of surrounding circumstances and their relation to one another, the issue in that query is factual.13

An examination of the issues raised by petitioner reveals that they are questions of fact. The issues raised, i.e., whether JLBP is an independent contractor, whether CCBPIs contracting-out of jobs to JLBP amounted to unfair labor practice, and whether such action was a valid exercise of management prerogative, call for a re-examination of evidence, which is not within the ambit of this Courts jurisdiction.

Moreover, factual findings of the NLRC, an administrative agency deemed to have acquired expertise in matters within its jurisdiction, are generally accorded not only respect but finality especially when such factual findings are affirmed by the CA.14

Furthermore, we find no reversible error in the assailed Decision.1avvphi1

It is true that the NLRC erroneously concluded that the contracting- out of jobs in CCBPI Gen San was due to the GTM system, which actually affected CCBPIs sales and marketing departments, and had nothing to do with petitioners complaint. However, this does not diminish the NLRCs finding that JLBP was a legitimate, independent contractor and that CCBPI Gen San engaged the services of JLBP to meet business exigencies created by the freeze-hiring directive of the CCBPI Head Office.

On the other hand, the CA squarely addressed the issue of job contracting in its assailed Decision and Resolution. The CA itself examined the facts and evidence of the parties15 and found that, based on the evidence, CCBPI did not engage in labor-only contracting and, therefore, was not guilty of unfair labor practice.

The NLRC found and the same was sustained by the CA that the companys action to contract-out the services and functions performed by Union members did not constitute unfair labor practice as this was not directed at the members right to self-organization.

Article 248 of the Labor Code provides:

ART. 248. UNFAIR LABOR PRACTICE OF EMPLOYERS. It shall be unlawful for an employer to commit any of the following unfair labor practices:

x x x

(c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to self-organization;

x x x

Unfair labor practice refers to "acts that violate the workers right to organize." The prohibited acts are related to the workers right to self-organization and to the observance of a CBA. Without that element, the acts, even if unfair, are not unfair labor practices.16

Both the NLRC and the CA found that petitioner was unable to prove its charge of unfair labor practice. It was the Union that had the burden of adducing substantial evidence to support its allegations of unfair labor practice,17 which burden it failed to discharge.

WHEREFORE, the foregoing premises considered, the Petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 80916 are AFFIRMED.

3) G.R. No. 154591 March 5, 2007

MANILA HOTEL EMPLOYEES ASSOCIATION and its members, Petitioners,vs.MANILA HOTEL CORPORATION, Respondent.

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

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 MHEAs Urgent 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 Commissioner Veloso 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 the dispositive 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 Decision27 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 certification31 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 issues34:

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.

II

WITH 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 assumption38 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 allegation42 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 immediately executory 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.1awphi1.nt

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 theory56 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. Brillantes57 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 in pari delicto doctrine pronounced in Philippine Airlines Inc. v. Brillantes65 and Philippines Interfashion Inc. v. National Labor Relations Commission66 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 Commission67:

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.

4) G.R. No. 160302 September 27, 2010JAILE OLISA, ISIDRO SANCHEZ, ANTONIO SARCIA, OSCAR CONTRERAS, ROMEO ZAMORA, MARIANO GAGAL, ROBERTO MARTIZANO, DOMINGO SANTILLICES, ARIEL ESCARIO, HEIRS OF FELIX LUCIANO, AND MALAYANG SAMAHAN NG MGA MANGGAGAWA SA BALANCED FOODS, Petitioners,vs.DANILO ESCARIO, PANFILO AGAO, ARSENIO AMADOR, ELMER COLICO, ROMANO DELUMEN, DOMINADOR AGUILO, OLYMPIO GOLOSINO, RICARDO LABAN, LORETO MORATA, ROBERTO TIGUE, GILBERT VIBAR, THOMAS MANCILLA, JR., NESTOR LASTIMOSO, JIMMY MIRABALLES, NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION), PINAKAMASARAP CORPORATION, DR. SY LIAN TIN, AND DOMINGO TAN, Respondents.

Conformably with the long honored principle of a fair days wage for a fair days labor, employees dismissed for joining an illegal strike are not entitled to backwages for the period of the strike even if they are reinstated by virtue of their being merely members of the striking union who did not commit any illegal act during the strike.

We apply this principle in resolving this appeal via a petition for review on certiorari of the decision dated August 18, 2003 of the Court of Appeals (CA),1 affirming the decision dated November 29, 2001 rendered by the National Labor Relations Commission (NLRC) directing their reinstatement of the petitioners to their former positions without backwages, or, in lieu of reinstatement, the payment of separation pay equivalent to one-half month per year of service.2

Antecedents

The petitioners were among the regular employees of respondent Pinakamasarap Corporation (PINA), a corporation engaged in manufacturing and selling food seasoning. They were members of petitioner Malayang Samahan ng mga Manggagawa sa Balanced Foods (Union).

At 8:30 in the morning of March 13, 1993, all the officers and some 200 members of the Union walked out of PINAs premises and proceeded to the barangay office to show support for Juanito Caete, an officer of the Union charged with oral defamation by Aurora Manor, PINAs personnel manager, and Yolanda Fabella, Manors secretary.3 It appears that the proceedings in the barangay resulted in a settlement, and the officers and members of the Union all returned to work thereafter.

As a result of the walkout, PINA preventively suspended all officers of the Union because of the March 13, 1993 incident. PINA terminated the officers of the Union after a month.

On April 14, 1993, PINA filed a complaint for unfair labor practice (ULP) and damages. The complaint was assigned to then Labor Arbiter Raul Aquino, who ruled in his decision dated July 13, 1994 that the March 13, 1993 incident was an illegal walkout constituting ULP; and that all the Unions officers, except Caete, had thereby lost their employment.4

On April 28, 1993, the Union filed a notice of strike, claiming that PINA was guilty of union busting through the constructive dismissal of its officers.5 On May 9, 1993, the Union held a strike vote, at which a majority of 190 members of the Union voted to strike.6 The strike was held in the afternoon of June 15, 1993.7

PINA retaliated by charging the petitioners with ULP and abandonment of work, stating that they had violated provisions on strike of the collective bargaining agreement (CBA), such as: (a) sabotage by the insertion of foreign matter in the bottling of company products; (b) decreased production output by slowdown; (c) serious misconduct, and willful disobedience and insubordination to the orders of the Management and its representatives; (d) disruption of the work place by invading the premises and perpetrating commotion and disorder, and by causing fear and apprehension; (e) abandonment of work since June 28, 1993 despite notices to return to work individually sent to them; and (f) picketing within the company premises on June 15, 1993 that effectively barred with the use of threat and intimidation the ingress and egress of PINAs officials, employees, suppliers, and customers. 8

On September 30, 1994, the Third Division of the National Labor Relations Commission (NLRC) issued a temporary restraining order (TRO), enjoining the Unions officers and members to cease and desist from barricading and obstructing the entrance to and exit from PINAs premises, to refrain from committing any and all forms of violence, and to remove all forms of obstructions such as streamers, placards, or human barricade.9

On November 29, 1994, the NLRC granted the writ of preliminary injunction.10

On August 18, 1998, Labor Arbiter Jose G. de Vera (LA) rendered a decision, to wit:

WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered declaring the subject strike to be illegal.

The complainants prayer for decertification of the respondent union being outside of the jurisdiction of this Arbitration Branch may not be given due course.

And finally, the claims for moral and exemplary damages for want of factual basis are dismissed.

SO ORDERED.11

On appeal, the NLRC sustained the finding that the strike was illegal, but reversed the LAs ruling that there was abandonment, viz:

However, we disagree with the conclusion that respondents union members should be considered to have abandoned their employment.

Under Article 264 of the Labor Code, as amended, the union officers who knowingly participate in the illegal strike may be declared to have lost their employment status. However, mere participation of a union member in the illegal strike does not mean loss of employment status unless he participates in the commission of illegal acts during the strike. While it is true that complainant thru individual memorandum directed the respondents to return to work (pp. 1031-1112, Records) there is no showing that respondents deliberately refused to return to work. A worker who joins a strike does so precisely to assert or improve the terms and conditions of his work. If his purpose is to abandon his work, he would not go to the trouble of joining a strike (BLTB v. NLRC, 212 SCRA 794).

WHEREFORE, premises considered, the Decision appealed from is hereby MODIFIED in that complainant company is directed to reinstate respondents named in the complaint to their former positions but without backwages. In the event that reinstatement is not feasible complainant company is directed to pay respondents separation pay at one (1/2) half month per year of service.

SO ORDERED.12

Following the denial of their motion for reconsideration, the petitioners assailed the NLRCs decision through a petition for certiorari in the Court of Appeals (CA), claiming that the NLRC gravely abused its discretion in not awarding backwages pursuant to Article 279 of the Labor Code, and in not declaring their strike as a good faith strike.

On August 18, 2003, the CA affirmed the NLRC.13 In denying the petitioners claim for full backwages, the CA applied the third paragraph of Article 264(a) instead of Article 279 of the Labor Code, explaining that the only instance under Article 264 when a dismissed employee would be reinstated with full backwages was when he was dismissed by reason of an illegal lockout; that Article 264 was silent on the award of backwages to employees participating in a lawful strike; and that a reinstatement with full backwages would be granted only when the dismissal of the petitioners was not done in accordance with Article 282 (dismissals with just causes) and Article 283 (dismissals with authorized causes) of the Labor Code.

The CA disposed thus:14

WHEREFORE, premises considered, the Petition is DISMISSED for lack of merit and the assailed 29 November 2001 Decision of respondent Commission in NLRC NRC CA No. 009701-95 is hereby AFFIRMED in toto. No costs.

SO ORDERED.15

On October 13, 2003, the CA denied the petitioners motion for reconsideration.16

Hence, this appeal via petition for review on certiorari.

Issue

The petitioners posit that they are entitled to full backwages from the date of dismissal until the date of actual reinstatement due to their not being found to have abandoned their jobs. They insist that the CA decided the question in a manner contrary to law and jurisprudence.

Ruling

We sustain the CA, but modify the decision on the amount of the backwages in order to accord with equity and jurisprudence.

I

Third Paragraph of Article 264 (a), >Labor Code, is Applicable

The petitioners contend that they are entitled to full backwages by virtue of their reinstatement, and submit that applicable to their situation is Article 279, not the third paragraph of Article 264(a), both of the Labor Code.

We do not agree with the petitioners.

Article 279 provides:

Article 279. Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

By its use of the phrase unjustly dismissed, Article 279 refers to a dismissal that is unjustly done, that is, the employer dismisses the employee without observing due process, either substantive or procedural. Substantive due process requires the attendance of any of the just or authorized causes for terminating an employee as provided under Article 278 (termination by employer), or Article 283 (closure of establishment and reduction of personnel), or Article 284 (disease as ground for termination), all of the Labor Code; while procedural due process demands compliance with the twin-notice requirement.17

In contrast, the third paragraph of Article 264(a) states:

Art. 264. Prohibited activities. (a) xxx

Any worker whose employment has been terminated as a consequence of 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.

x x x

Contemplating two causes for the dismissal of an employee, that is: (a) unlawful lockout; and (b) participation in an illegal strike, the third paragraph of Article 264(a) authorizes the award of full backwages only when the termination of employment is a consequence of an unlawful lockout. On the consequences of an illegal strike, the provision distinguishes between a union officer and a union member participating in an illegal strike. A union officer who knowingly participates in an illegal strike is deemed to have lost his employment status, but a union member who is merely instigated or induced to participate in the illegal strike is more benignly treated. Part of the explanation for the benign consideration for the union member is the policy of reinstating rank-and-file workers who are misled into supporting illegal strikes, absent any finding that such workers committed illegal acts during the period of the illegal strikes.18

The petitioners were terminated for joining a strike that was later declared to be illegal. The NLRC ordered their reinstatement or, in lieu of reinstatement, the payment of their separation pay, because they were mere rank-and-file workers whom the Unions officers had misled into joining the illegal strike. They were not unjustly dismissed from work. Based on the text and intent of the two aforequoted provisions of the Labor Code, therefore, it is plain that Article 264(a) is the applicable one.

II

Petitioners not entitled to backwages despite their reinstatement:A fair days wage for a fair days labor

The petitioners argue that the finding of no abandonment equated to a finding of illegal dismissal in their favor. Hence, they were entitled to full backwages.

The petitioners argument cannot be sustained.

The petitioners participation in the illegal strike was precisely what prompted PINA to file a complaint to declare them, as striking employees, to have lost their employment status. However, the NLRC ultimately ordered their reinstatement after finding that they had not abandoned their work by joining the illegal strike. They were thus entitled only to reinstatement, regardless of whether or not the strike was the consequence of the employers ULP,19 considering that a strike was not a renunciation of the employment relation.20

As a general rule, backwages 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.21 The grant of backwages 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.22

That backwages are not granted to employees participating in an illegal strike simply accords with the reality that they do not render work for the employer during the period of the illegal strike.23 According to G&S Transport Corporation v. Infante:24

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. xxx 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. (emphasis supplied)

The petitioners herein do not deny their participation in the June 15, 1993 strike. As such, they did not suffer any loss of earnings during their absence from work. Their reinstatement sans backwages is in order, to conform to the policy of a fair days wage for a fair days labor.

Under the principle of a fair days wage for a fair days labor, the petitioners were not entitled to the wages during the period of the strike (even if the strike might be legal), because they performed no work during the strike. Verily, it was neither fair nor just that the dismissed employees should litigate against their employer on the latters time.25 Thus, the Court deleted the award of backwages and held that the striking workers were entitled only to reinstatement in Philippine Diamond Hotel and Resort, Inc. (Manila Diamond Hotel) v. Manila Diamond Hotel Employees Union,26 considering that the striking employees did not render work for the employer during the strike.

III

Appropriate Amount for Separation PayIs One Month per Year of Service

The petitioners were ordered reinstated because they were union members merely instigated or induced to participate in the illegal strike. By joining the strike, they did not renounce their employment relation with PINA but remained as its employees.

The absence from an order of reinstatement of an alternative relief should the employer or a supervening event not within the control of the employee prevent reinstatement negates the very purpose of the order. The judgment favorable to the employee is thereby reduced to a mere paper victory, for it is all too easy for the employer to simply refuse to have the employee back. To safeguard the spirit of social justice that the Court has advocated in favor of the working man, therefore, the right to reinstatement is to be considered renounced or waived only when the employee unjustifiably or unreasonably refuses to return to work upon being so ordered or after the employer has offered to reinstate him.27

However, separation pay is made an alternative relief in lieu of reinstatement in certain circumstances, like: (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 employers 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.28

Here, PINA manifested that the reinstatement of the petitioners would not be feasible because: (a) it would "inflict disruption and oppression upon the employer"; (b) "petitioners [had] stayed away" for more than 15 years; (c) its machines had depreciated and had been replaced with newer, better ones; and (d) it now sold goods through independent distributors, thereby abolishing the positions related to sales and distribution.29

Under the circumstances, the grant of separation pay in lieu of reinstatement of the petitioners was proper.1awph!1 It is not disputable that the grant of separation pay or some other financial assistance to an employee is based on equity, which has been defined as justice outside law, or as being ethical rather than jural and as belonging to the sphere of morals than of law.30 This Court has granted separation pay as a measure of social justice even when an employee has been validly dismissed, as long as the dismissal has not been due to serious misconduct or reflective of personal integrity or morality.31

What is the appropriate amount for separation pay?

In G & S Transport,32 the Court awarded separation pay equivalent to one month salary per year of service considering that 17 years had passed from the time when the striking employees were refused reinstatement. In Association of Independent Unions in the Philippines v. NLRC,33 the Court allowed separation pay equivalent to one month salary per year of service considering that eight years had elapsed since the employees had staged their illegal strike.

Here, we note that this case has dragged for almost 17 years from the time of the illegal strike. Bearing in mind PINAs manifestation that the positions that the petitioners used to hold had ceased to exist for various reasons, we hold that separation pay equivalent to one month per year of service in lieu of reinstatement fully aligns with the aforecited rulings of the Court on the matter.

WHEREFORE, we affirm the decision dated August 18, 2003 of the Court of Appeals, subject to the modification to the effect that in lieu of reinstatement the petitioners are granted backwages equivalent of one month for every year of service.

5)G.R. No. 160138 January 16, 2013

AUTOMOTIVE ENGINE REBUILDERS, INC. (AER), ANTONIO T. INDUCIL, LOURDES T. INDUCIL, JOCELYN T. INDUCIL and MA. CONCEPCION I. DONATO, Petitioners,vs.PROGRESIBONG UNYON NG MGA MANGGAGAWA SA AER, ARNOLD VILLOTA, FELINO E. AGUSTIN, RUPERTO M. MARIANO II, EDUARDO S. BRIZUELA, ARNOLD S. RODRIGUEZ, RODOLFO MAINIT, JR., FROILAN B. MADAMBA, DANILO D. QUIBOY, CHRISTOPHER R. NOLASCO, ROGER V. BELATCHA, CLEOFAS B. DELA BUENA, JR., HERMINIO P. PAPA, WILLIAM A. RITUAL, ROBERTO CALDEO, RAFAEL GACAD, JAMES C. CAAMPUED, ESPERIDION V. LOPEZ, JR., FRISCO M. LORENZO, JR., CRISANTO LUMBAO, JR., and RENATO SARABUNO, Respondents.

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

G.R. No. 160192

PROGRESIBONG UNYON NG MGA MANGGAGAWA SA AER, ARNOLD VILLOTA, FELINO E. AGUSTIN, RUPERTO M. MARIANO II, EDUARDO S. BRIZUELA, ARNOLD S. RODRIGUEZ, RODOLFO MAINIT, JR., FROILAN B. MADAMBA, DANILO D. QUIBOY, CHRISTOPHER R. NOLASCO, ROGER V. BELATCHA, CLEOFAS B. DELA BUENA, JR., HERMINIO P. PAPA, WILLIAM A. RITUAL, ROBERTO CALDEO, RAFAEL GACAD, JAMES C. CAAMPUED, ESPERIDION V. LOPEZ, JR., FRISCO M. LORENZO, JR., CRISANTO LUMBAO, JR., and RENA TO SARABUNO, Petitioners,vs.AUTOMOTIVE ENGINEREBUILDERS, INC., and ANTONIO T. INDUCIL, Respondents.

For resolution is the Motion for Partial Reconsideration filed by Progresibong Unyon Ng Mga Manggagawa Sa AER (Unyon) which questioned the Courts July 13, 2011 Decision insofar as it failed to award backwages to fourteen (14) of its members. The decretal portion of the decision reads:

WHEREFORE, the petitions are DENIED. Accordingly, the complaining employees should be reinstated without backwages. If reinstatement is no longer feasible, the concerned employees should be given separation pay up to the date set for their return in lieu of reinstatement.1

In arriving at said determination, the Court found out both parties were at fault or in pari delicto and must bear the consequences of their own wrongdoing.2 Thus, it decreed that the striking employees must be restored to their respective positions prior to the illegal strike and illegal lockout.

Records disclose that this labor controversy started when both parties filed charges against each other, blaming the other party for violating labor laws. Thirty-two (32) employees filed and signed a complaint,3 dated February 18, 1999, against Automotive Engine Rebuilders, Inc. (AER). The complaint prayed that AER be declared guilty of Unfair Labor Practices, Illegal Dismissal, Illegal Suspension, and Run-away shop; that the complainants be reinstated; and that they be paid "full backwages and without loss of seniority rights and privileges, payment of wages during suspension, plus moral and exemplary damages and attorneys fees."4

The names of the 32 complaining employees are as follows:

On the other hand, the earlier complaint5 filed by AER against Unyon and eighteen (18) of its members for illegal concerted activities prayed that, after notice and hearing, judgment be rendered as follows:

1. Finding respondents guilty of unfair labor practice and illegal concerted activity;

2. Finding respondents guilty of abandonment of work, serious misconduct, gross disrespect, commission of felonies against the complainant and their respective officers, threats, coercion and intimidation;

3. Penalizing complainants with dismissal and/or termination of employment; and

4. Adjudging respondents to be jointly and solidarily liable to complainant for moral damages in the sum of P500,000.00, exemplary damages in the sum of P500,000.00 and attorneys fees and costs.

The names of the 18 workers charged with illegal strike by AER are as follows:

AER likewise suspended seven (7) union members who tested positive for illegal drugs, namely:

Out of the seven (7) suspended employees, only Edwin Fabian and Nazario Madala were allowed by AER to report back to work. The other five (5) suspended employees were not admitted by AER without first submitting the required medical certificate attesting to their fitness to work.

On August 9, 2001, after the parties submitted their respective position papers,6 the Labor Arbiter (LA) rendered a decision7 in favor of Unyon by directing AER to reinstate the concerned employees but without backwages effective October 16, 2001. Both parties filed their respective appeals8 with the National Labor Relations Commission (NLRC).

On March 5, 2002, the NLRC issued its Resolution9 modifying the LA decision by setting aside the order of reinstatement as it ruled out illegal dismissal. The NLRC likewise ruled that the concerned employees had no valid basis in conducting a strike. On April 19, 2002, Unyon filed a motion for reconsideration10 insisting, among others, that AER was guilty of unfair labor practice, illegal suspension and illegal dismissal. Unyon also argued that since AER charged only 18 of the 32 employees with illegal strike, the employees who were not included in the said charge should have been admitted back to work by AER. Unyon also claimed that there was no allegation that these employees, who were not included in AERs charge for illegal strike, were involved in the January 28, 1999 incident.11

After the denial of their motion for reconsideration, Unyon and the concerned employees filed a petition12 before the Court of Appeals (CA). Unyon reiterated its argument that AER should admit back to work those excluded from its list of 18 employees charged with illegal strike.13

On June 27, 2003, the CA rendered a decision,14 the dispositive portion of which reads, as follows:

WHEREFORE, premises considered, the petition is GRANTED. Respondents are hereby directed to reinstate the petitioners effective immediately but without backwages, except those who were tested positive for illegal drugs and have failed to submit their respective medical certificates.

On October 1, 2003, ruling on the motion for partial reconsideration filed by Unyon, the CA rendered the assailed Amended Decision,15 ordering the immediate reinstatement of all the suspended employees without backwages. Thus,

WHEREFORE, the partial motion for reconsideration is GRANTED insofar as the reinstatement of the suspended employees is concerned. This Courts decision dated June 27, 2003 is hereby MODIFIED. Private respondents are hereby directed to reinstate all petitioners immediately without backwages.

Unsatisfied, both parties filed the present consolidated petitions. Unyon argued that the CA erred in not awarding backwages to the suspended employees who were ordered reinstated. AER, on the other hand, argued that the CA erred in ordering the reinstatement of the suspended employees.

On July 13, 2011, this Court rendered a decision,16 the dispositive portion of which reads, as follows:

WHEREFORE, the petitions are DENIED. Accordingly, the complaining employees should be reinstated without backwages. If reinstatement is no longer feasible, the concerned employees should be given separation pay up to the date set for their return in lieu of reinstatement.

Unyon filed the subject Motion for Partial Reconsideration17 questioning the Courts July 13, 2011 Decision insofar as it failed to award backwages to fourteen (14) of its members.

Unyon argues that backwages should have been awarded to the 14 employees who were excluded from the complaint filed by AER and that the latter should have reinstated them immediately because they did not have any case at all.

AER was directed to file its comment. Its Comment,18 however, failed to address the issue except to say that the motion for partial reconsideration was pro-forma.

After going over the records again, the Court holds that only nine (9) of the fourteen (14) excluded employees deserve to be reinstated immediately with backwages.

Records disclose that thirty-two (32) employees filed a complaint for illegal suspension and unfair labor practice against AER. Out of these 32 workers, only eighteen (18) of them were charged by AER with illegal strike leaving fourteen (14) of them excluded from its complaint. The names of these 14 employees are as follows:

Technically, as no charges for illegal strike were filed against these 14 employees, they cannot be among those found guilty of illegal strike. They cannot be considered in pari delicto. They should be reinstated and given their backwages.

Out of these 14 employees, however, five (5) failed to write their names and affix their signatures in the Membership Resolution19 attached to the petition filed before the CA, authorizing Union President Arnold Villota to represent them. It must be noted that Arnold Villota signed as the Affiant in the Verification and Certification by virtue of the Membership Resolution.20 The names of these 5 employees are:

Because of their failure to affix their names and signatures in the Membership Resolution, Edwin Mendoza, Tammy Punzalan, Edward Ferrancol, Menching Mariano, Jr. and Carlos Carolina cannot be granted the relief that Unyon wanted for them in its Motion for Partial Reconsideration.

Only the following nine (9) employees who signed their names in the petition can be granted the relief prayed for therein, namely:

These excluded nine (9) workers, who signed their names in their petition before the CA, deserve to be reinstated immediately and gra:1ted backwages. It is basic in jurisprudence that illegally dismissed workers are entitled to reinstatement with back wages pi us interest at the legal rate.21

As stated in the Amended Decision of the CA, which the Court effectively affirmed after denying the petition of both parties, the reinstatement shall be "without prejudice to the right of private respondent AER to subject them for further medical check-up to determine if subject petitioners are drug dependents."22

WHEREFORE, the Motion for Pa1iial Reconsideration filed by Progresibong Unyon Ng Mga Manggagawa Sa AER is GRANTED only insofar as the nine (9) employees are concerned, namely: Ruperto Mariano II, Arnold Rodriguez, Froilan Madamba, Danilo Quiboy, Roger Belateha, Roberto Caldeo, Crisanto Lumbao, Jr., Arnold Villota, and Renato Sarabuno.1wphi1

Accordingly, the July 13, 2011 Decision is hereby MODIFIED in that the aforementioned nine (9) workers are entitled to be reinstated and granted backwages with interest at the rate of six percent (6%) per annum which shall be increased to twelve percent (12%) after the finality of this judgment.

SO ORDERED.

6)G.R. Nos. 191138-39 October 19, 2011MAGDALA MULTIPURPOSE & LIVELIHOOD COOPERATIVE and SANLOR MOTORS CORP., Petitioners,vs.KILUSANG MANGGAGAWA NG LGS, MAGDALA MULTIPURPOSE & LIVELIHOOD CORPERATIVE (KMLMS) and UNION MEMBERS/ STRIKERS, namely: Respondents.The Case

Petitioners Magdala Multipurpose & Livelihood Cooperative and Sanlor Motors Corp. assail and seek the modification of the June 30, 2009 Decision1 and January 28, 2010 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP Nos. 88614 and 88645, which affirmed in toto the October 15, 2004 Decision3 of the National Labor Relations Commission (NLRC) in NLRC CA No. 040560-04 (NLRC RAB IV-9-1265-02-R).

The Facts

Respondent Kilusang Manggagawa ng LGS, Magdala Multipurpose and Livelihood Cooperative (KMLMS) is the union operating in Magdala Multipurpose & Livelihood Cooperative and Sanlor Motors Corp.

KMLMS filed a notice of strike on March 5, 2002 and conducted its strike-vote on April 8, 2002. However, KMLMS only acquired legal personality when its registration as an independent labor organization was granted on April 9, 2002 by the Department of Labor and Employment under Registration No. RO-400-200204-UR-002.4 On April 19, 2002, it became officially affiliated as a local chapter of the Pambansang Kaisahan ng Manggagawang Pilipino when its application was granted by the Bureau of Labor Relations.5

Thereafter, on May 6, 2002, KMLMSnow a legitimate labor organization (LLO)staged a strike where several prohibited and illegal acts were committed by its participating members.

On the ground of lack of valid notice of strike, ineffective conduct of a strike-vote and commission of prohibited and illegal acts, petitioners filed their Petition to Declare the Strike of May 6, 2002 Illegal6 before the NLRC Regional Arbitration Board (RAB) No. IV in Quezon City, docketed as NLRC RAB IV-9-1265-02-R. In their petition, as well as their Position Paper,7 petitioners prayed, inter alia, that the officers and members of respondent KMLMS who participated in the illegal strike and who knowingly committed prohibited and illegal activities, respectively, be declared to have lost or forfeited their employment status.

The Ruling of the Labor Arbiter

In her March 26, 2004 Decision,8 Executive Labor Arbiter Lita V. Aglibut (LA Aglibut) found the May 6, 2002 strike illegal and declared 41 workers to have lost their employment, the dispositive portion reading:

WHEREFORE, this Office finds the strike conducted by the Kilusang Manggagawa ng LGS, Magdala / Sanlor Motors-KMLMS, now known and registered as Kilusang [Manggagawa] Ng LGS/Magdala Sanlor Motors Corporation PKMP, illegal and the employment status of the following workers are hereby declared forfeited: x x x.

All other claims are dismissed for lack of merit.

SO ORDERED.9

On the ground of non-compliance with the strict and mandatory requirements for a valid conduct of a strike under Article 263(c), (d) and (f) of the Labor Code and Rule XXII, Book V of the Omnibus Rules Implementing the Labor Code, LA Aglibut found the May 6, 2002 strike illegal and accordingly dismissed all the 14 union officers of KMLMS. LA Aglibut likewise found 27 identified members of KMLMS to have committed prohibited and illegal acts proscribed under Art. 264 of the Labor Code and accordingly declared them to have forfeited their employment.

Both parties appealed the Decision of LA Aglibut before the NLRC.

The Ruling of the NLRC

On October 15, 2004, the NLRC rendered its Decision affirming with modification LA Aglibuts Decision by declaring an additional seven (7) union members to have forfeited their employment status. The decretal portion reads:

WHEREFORE, premises considered, the decision appealed from is affirmed with modification in that [said seven union members] are also declared to have lost their employment status for having committed prohibited acts.

SO ORDERED.10

Unsatisfied, both parties again filed their respective appeals before the CA.

The Ruling of the CA

The CA rendered the assailed Decision on June 30, 2009 affirming in toto the NLRC Decision, the fallo reading:

WHEREFORE, in view of the following disquisition, the respective petitions for certiorari in CA-G.R. SP. No. 88614 and CA-G.R. SP. No. 88645 are hereby DISMISSED for lack of merit. Accordingly, the assailed Decision, dated 15 October 2004, of the National Labor Relations Commission (NLRC) in NLRC CA No. 040560-04 (NLRC RAB IV-9-1265-02-R) is hereby AFFIRMED in toto.

SO ORDERED.11

Thus, petitioners have come to Us, praying for a partial modification of the assailed CA Decision by declaring additional 7312 similarly erring KMLMS members to have lost their employment.

The Issues

A

THE COURT OF APPEALS ERRED IN REFUSING TO SIMILARLY DECLARE AS HAVING LOST THEIR EMPLOYMENT STATUS THE REST OF THE UNION STRIKERS WHO HAVE PARTICIPATED IN THE ILLEGAL STRIKE AND COMMITTED PROHIBITED/ILLEGAL ACTS, TO THE PREJUDICE OF PETITIONERS[] BUSINESS OPERATIONS.

B

THE COURT OF APPEALS ERRED IN REFUSING TO AWARD DAMAGES AND ATTORNEYS FEES AS A RESULT OF THE ILLEGAL STRIKE THAT NEARLY CRIPPLED THE BUSINESS OPERATIONS OF PETITIONERS.13

The Courts Ruling

The petition is partly meritorious.

First Issue: The May 6, 2002 Strike Was Illegal

There is no question that the May 6, 2002 strike was illegal, first, because when KMLMS filed the notice of strike on March 5 or 14, 2002, it had not yet acquired legal personality and, thus, could not legally represent the eventual union and its members. And second, similarly when KMLMS conducted the strike-vote on April 8, 2002, there was still no union to speak of, since KMLMS only acquired legal personality as an independent LLO only on April 9, 2002 or the day after it conducted the strike-vote. These factual findings are undisputed and borne out by the records.

Consequently, the mandatory notice of strike and the conduct of the strike-vote report were ineffective for having been filed and conducted before KMLMS acquired legal personality as an LLO, violating Art. 263(c), (d) and (f) of the Labor Code and Rule XXII, Book V of the Omnibus Rules Implementing the Labor Code. The Labor Code provisos pertinently provide:

ART. 263. Strikes, Picketing and Lockouts. (a) x x x

(c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 days before the intended date thereof. In case of unfair labor practice, the period of notice shall be 15 days and in absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (As amended by Executive Order No. 111, December 24, 1986.)

(d) The notice must be in accordance with such implementing rules and regulations as the Ministry of Labor and Employment may promulgate.

x x x x

(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. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and further amended by Executive Order No. 111, December 24, 1986.)

On the other hand, Rule XXII, Book V of the Omnibus Rules Implementing the Labor Code likewise pertinently provides:

RULE XXIICONCILIATION, STRIKES AND LOCKOUTS

x x x x

SEC. 6. Who may declare a strike or lockout. Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices. The employer may declare a lockout in the same cases. In the absence of a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike but only on grounds of unfair labor practice. (Emphasis supplied.)

It is, thus, clear that the filing of the notice of strike and the conduct of the strike-vote by KMLMS did not comply with the aforequoted mandatory requirements of law and its implementing rules. Consequently, the May 6, 2002 strike is illegal. As the Court held in Hotel Enterprises of the Philippines, Inc. (HEPI) v. Samahan ng mga Manggagawa sa Hyatt-National Union of Workers in the Hotel and Restaurant and Allied Industries (SAMASAH-NUWHRAIN),14 these requirements are mandatory and failure of a union to comply renders the strike illegal.

Striking KMLMS Members Committed Prohibited Acts

There is likewise no dispute that when the May 6, 2002 illegal strike was conducted, the members of respondent KMLMS committed prohibited and illegal acts which doubly constituted the strike illegal. This is the unanimous factual finding of the courts a quo which the Court accords finality, as supported by evidence on record.

The proscribed acts during a strike are provided under Art. 264 of the Labor Code, thus:

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 case involving the same grounds for the strike or lockout.

Any worker whose employment has been terminated as a consequence of any 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.

x x x x

(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. (As amended by Batas Pambansa Bilang 227, June 1, 1982).

Here, the striking workers committed acts of (1) interference by obstructing the free ingress to or egress from petitioners compound and (2) coercion and intimidation. As aptly pointed out by the appellate court:

This is clear from the Police Blotter Certifications, including a Complaint for Grave Coercion, Affidavits from several workers, including one from a proprietor, all of whom were prevented from entering the company premises and doing their work or conducting their business, and the countless photographs which show the striking workers blocking the gates of