G.R. No.

146073

January 13, 2003

five years.4 Both CBAs contained an identically-worded provision on hours and days of work reading: Article IX Regular Hours of Work and Days of Labor Section 1. The regular working days in a week shall be five (5) days on any day from Monday to Sunday, as may be scheduled by the COMPANY, upon seven (7) days prior notice unless any of this day is declared a special holiday.5 (Italics omitted) In accordance with the above-quoted provision of the CBA, the employees work week was reduced to five days or a total of 250 days a year. ICTSI, however, continued using the 304-day divisor in computing the wages of the employees.6 On November 10, 1990, the Regional Tripartite Wage and Productivity Board (RTWPB) in the National Capital Region decreed a P17.00 daily wage increase for all workers and employees receiving P125.00 per day or lower in the National Capital Region.7 The then president of APCWU, together with some union members, thus requested the ICTSIs Human Resource Department/Personnel Manager to compute the actual monthly increase in the employees wages by multiplying the RTWPB mandated increase by 365 days and dividing the product by 12 months.8 Heeding the proposal and following the implementation of the new wage order, ICTSI stopped using 304 days as divisor and started using 365 days in determining the daily wage of its employees and other consequential compensation, even if the employees work week consisted of only five days as agreed upon in the CBA.9 In early 1997, ICTSI went on a retrenchment program and laid off its on-call employees.10 This prompted the APCWU-ICTSI to

JERRY E. ACEDERA, ANTONIO PARILLA, AND OTHERS LISTED IN ANNEX "A,"1, petitioners-appellants, vs. INTERNATIONAL CONTAINER TERMINAL SERVICES, INC. (ICTSI), NATIONAL LABOR RELATIONS COMMISSION and HON. COURT OF APPEALS, respondents-appellees. CARPIO-MORALES, J.: For consideration is the petition for review on certiorari assailing the decision of the Court of Appeals affirming that of the National Labor Relations Commission (NLRC) which affirmed the decision of the Labor Arbiter denying herein petitionersappellants Complaint-in-Intervention with Motion for Intervention. The antecedent facts are as follows: Petitioners-appellants Jerry Acedera, et al. are employees of herein private respondent International Container Terminal Services, Inc. (ICTSI) and are officers/members of Associated Port Checkers & Workers Union-International Container Terminal Services, Inc. Local Chapter (APCWU-ICTSI), a labor organization duly registered as a local affiliate of the Associated Port Checkers & Workers Union (APCWU). When ICTSI started its operations in 1988, it determined the rate of pay of its employees by using 304 days, the number of days of work of the employees in a year, as divisor.2 On September 28, 1990, ICTSI entered into its first Collective Bargaining Agreement (CBA) with APCWU with a term of five years effective until September 28, 1995.3 The CBA was renegotiated and thereafter renewed through a second CBA that took effect on September 29, 1995, effective for another

file a notice of strike which included as cause of action not only the retrenchment of the employees but also ICTSIs use of 365 days as divisor in the computation of wages.11 The dispute respecting the retrenchment was resolved by a compromise settlement12 while that respecting the computation of wages was referred to the Labor Arbiter.13 On February 26, 1997, APCWU, on behalf of its members and other employees similarly situated, filed with the Labor Arbiter a complaint against ICTSI which was dismissed for APCWUs failure to file its position paper.14Upon the demand of herein petitioners-appellants, APCWU filed a motion to revive the case which was granted. APCWU thereupon filed its position paper on August 22, 1997.15 On December 8, 1997, petitioners-appellants filed with the Labor Arbiter a Complaint-in-Intervention with Motion to Intervene.16 In the petition at bar, they justified their move to intervene in this wise: [S]hould the union succeed in prosecuting the case and in getting a favorable reward it is actually they that would benefit from the decision. On the other hand, should the union fail to prove its case, or to prosecute the case diligently, the individual workers or members of the union would suffer great and immeasurable loss. [t]hey wanted to insure by their intervention that the case would thereafter be prosecuted with all due diligence and would not again be dismissed for lack of interest to prosecute on the part of the union.17 The Labor Arbiter rendered a decision, the dispositive portion of which reads: WHEREFORE, decision is hereby rendered declaring that the correct divisor in computing the daily wage and other labor standard benefits of the employees of respondent ICTSI who are members of complainant

Union as well as the other employees similarly situated is two hundred fifty (250) days such that said respondent is hereby ordered to pay the employees concerned the differentials representing the underpayment of said salaries and other benefits reckoned three (3) years back from February 26, 1997, the date of filing of this complaint or computed from February 27 1994 until paid, but for purposes of appeal, the salary differentials are temporarily computed for one year in the amount of Four Hundred Sixty Eight Thousand Forty Pesos (P468,040.00).18 In the same decision, the Labor Arbiter denied petitionersappellants Complaint-in-Intervention with Motion for Intervention upon a finding that they are already well represented by APCWU.19 On appeal, the NLRC reversed the decision of the Labor Arbiter and dismissed APCWUs complaint for lack of merit.20 The denial of petitioners-appellants intervention was, however, affirmed.21 Unsatisfied with the decision of the NLRC, APCWU filed a petition for certiorari with the Court of Appeals while petitionersappellants filed theirs with this Court which referred the petition22 to the Court of Appeals. The Court of Appeals dismissed APCWUs petition on the following grounds: failure to allege when its motion for reconsideration of the NLRC decision was filed, failure to attach the necessary appendices to the petition, and failure to file its motion for extension to file its petition within the reglementary period.23 As for petitioners-appellants petition for certiorari, it was dismissed by the Court of Appeals in this wise:

It is clear from the records that herein petitioners, claiming to be employees of respondent ICTSI, arealready well represented by its employees union, APCWU, in the petition before this Court (CA-G.R. SP. No. 53266) although the same has been dismissed. The present petition is, therefore a superfluity that deserves to be dismissed. Furthermore, only Acedera signed the Certificate of non-forum shopping. On this score alone, this petition should likewise be dismissed. We find that the same has no merit considering that herein petitioners have not presented any meritorious argument that would justify the reversal of the Decision of the NLRC. Article IX of the CBA provides: Regular Hours of Work and Days of Labor "Section 1. The regular working days in a week shall be five (5) days on any day from Monday to Sunday, as may be scheduled by the COMPANY, upon seven (7) days prior notice unless any of this day is declared a special holiday." This provision categorically states the required number of working days an employee is expected to work for a week. It does not, however, indicate the manner in which an employees salary is to be computed. In fact, nothing in the CBA makes any referral to any divisor which should be the basis for determining the salary. The NLRC, therefore, correctly ruled that" xxx the absence of any express or specific provision in the CBA that 250 days should be used as divisor altogether makes the position of the Union untenable." xxx Considering that herein petitioners themselves requested that 365 days be used as the divisor in

computing their wage increase and later did not raise or object to the same during the negotiations of the new CBA, they are clearly estopped to now complain of such computation only because they no longer benefit from it. Indeed, the 365 divisor for the past seven (7) years has already become practice and law between the company and its employees.24 (Emphasis supplied) xxx Hence, the present petition of petitioners-appellants who fault the Court of Appeals as follows: I . . . in rejecting the CBA of the parties as the source of the divisor to determine the workers daily rate totally disregarded the applicable landmark decisions of the Honorable Supreme Court on the matter. II . . . [IN] disregard[ING] applicable decisions of this Honorable Court when it ruled that the petitionersappellants are already in estoppel. III . . . in ruling that the petitioners-appellants have no legal right to intervene in and pursue this case and that their intervention is a superfluity. IV . . . in holding, although merely as an obiter dictum, that only petitioner Jerry Acedera signed the certificate of non-forum shopping.25

The third assigned error respecting petitioners-appellants right to intervene shall first be passed upon, it being determinative of their right to raise the other assigned errors. Petitioners-appellants anchor their right to intervene on Rule 19 of the 1997 Rules of Civil Procedure, Section 1 of which reads: Section 1. Who may intervene.- A person who has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors right may be fully protected in a separate proceeding. They stress that they have complied with the requisites for intervention because (1) they are the ones who stand to gain or lose by the direct legal operation and effect of any judgment that may be rendered in this case, (2) no undue delay or prejudice would result from their intervention since their Complaint-in-Intervention with Motion for Intervention was filed while the Labor Arbiter was still hearing the case and before any decision thereon was rendered, and (3) it was not possible for them to file a separate case as they would be guilty of forum shopping because the only forum available for them was the Labor Arbiter.26 Petitioners-appellants, however, failed to consider, in addition to the rule on intervention, the rule on representation, thusly: Sec. 3. Representatives as parties.- Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case

and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. . . 27 (Emphasis supplied) A labor union is one such party authorized to represent its members under Article 242(a) of the Labor Code which provides that a union may act as the representative of its members for the purpose of collective bargaining. This authority includes the power to represent its members for the purpose of enforcing the provisions of the CBA. That APCWU acted in a representative capacity "for and in behalf of its Union members and other employees similarly situated," the title of the case filed by it at the Labor Arbiters Office so expressly states. While a party acting in a representative capacity, such as a union, may be permitted to intervene in a case, ordinarily, a person whose interests are already represented will not be permitted to do the same28 except when there is a suggestion of fraud or collusion or that the representative will not act in good faith for the protection of all interests represented by him.29 Petitioners-appellants cite the dismissal of the case filed by ICTSI, first by the Labor Arbiter, and later by the Court of Appeals.30 The dismissal of the case does not, however, by itself show the existence of fraud or collusion or a lack of good faith on the part of APCWU. There must be clear and convincing evidence of fraud or collusion or lack of good faith independently of the dismissal. This, petitioners-appellants failed to proffer. Petitioners-appellants likewise express their fear that APCWU would not prosecute the case diligently because of its "sweetheart relationship" with ICTSI.31 There is nothing on record, however, to support this alleged relationship which allegation surfaces as a mere afterthought because it was

never raised early on. It was raised only in petitionersappellants reply to ICTSIs comment in the petition at bar, the last pleading submitted to this Court, which was filed on June 20, 2001 or more than 42 months after petitioners-appellants filed their Complaint-in-Intervention with Motion to Intervene with the Labor Arbiter. To reiterate, for a member of a class to be permitted to intervene in a representative action, fraud or collusion or lack of good faith on the part of the representative must be proven. It must be based on facts borne on record. Mere assertions, as what petitioners-appellants proffer, do not suffice. The foregoing discussion leaves it unnecessary to discuss the other assigned errors. WHEREFORE, the present petition is hereby denied. SO ORDERED.

G.R. Nos. 113666-68

January 19, 2000

GOLDEN DONUTS, INC. and LEOPOLDO PRIETO, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION, AGAPITO MACANDOG, LEONISA M. HONTIVEROS, ROSITA D. TAMARGO, LUCITA TEGIO and ALMA MAGTARAYO, respondents. PARDO, J.: The petition at bar is actually one for certiorari1 impugning the resolution2 of the National Labor Relations Commission (NLRC), which modified the Labor Arbiter's decision and ordered petitioner to reinstate complainants (respondents) to their former positions without loss of seniority rights and back wages limited to three (3) years from dismissal up to time of reinstatement and to pay respondents Rosita Tamargo, Lucita Tegio, Alma Magtarayo, and Leonisa Hontiveros each separation pay of P4,000.00; to pay complainant Agapito Macandog separation pay of P4,000.00, unpaid salary of P1,000.00; thirteenth month pay of P1,329.25 and attorney's fee of ten (10%) per cent of the total amount due; and the order3 denying reconsideration of the aforementioned resolution. Private respondents Macandog, Hontiveros, Tamargo, Tegio and Magtarayo, were employees of petitioner Golden Donuts, Inc., and were the complainants in three consolidated cases filed in September 1990 with the Labor Arbiter. The facts are aptly summarized in the Labor Arbiter's decision dated January 29, 1993, as follows: Complainants were members of the Kapisanan ng Manggagawa sa Dunkin Donut-CFW (KMDD-CFW, for short) whose collective bargaining agreement with the

corporation expired on November 16, 1989. During the freedom period, or on October 17, 1989, respondents through its Human Resources and Industrial Relations Manager informed the President of the Union that the initial CBA negotiation was on October 26, 1989 and, at the same time, requested for the confirmation of the people who shall be the regular members of the union panel in order to avoid any misunderstanding. At which date however, despite the absence of Leopoldo Prieto, Jr., the management representative, and the President of the Union, both panels were able to agree on the rules regarding the negotiation, including the time, date and number of days the panels had to meet. On November 7, 1989 (sic) CBA negotiations, the management panel arrived late, or at 1:35 P.M. which was thirty five minutes late, thus prompting the union panel to walkout. Despite the management request to go back and proceed with the agenda, the union simply ignored the same. A day after, or on November 8, 1989, the management addressed a letter of apology to the union and requested that the CBA negotiation be resumed on November 9, 15 and 17, 1989 which was discredited in the following wise: November 9, 1989 The Management CBA Negotiating Panel Golden Donuts, Inc. Attention: Ms. Gertrudes P. Bangalan HRIR Manager We are in receipt of your letter expressing your sincere apology for the incident that happened last Nov. 7, 1989 at AIT. Truly, it is our interest to come up with a peaceful negotiation, as we had displayed during our previews meetings. From punctuality even up to the manner of discussion we had shown

our concern and sincere interest that we could finish our CBA as soon as possible smoothly and peacefully. However, as we go on with the process, we observed that you are taking our CBA negotiation for granted, not considering it as one of your priorities. However further, we would like to inform you that our final decision is to declare the negotiationDEADLOCK (sic). Thus, we regret to inform you that we could not attent (sic) to your scheduled meeting this afternoon. Sincerely yours, Florante M. Vicedo KMDD President Came November 15 and 17, but the union panel did not show up despite the management letters advising the former about the CBA meetings. Again, on November 20, 1989 management sent a letter informing the union regarding the resumption of the negotiation, but the same turned out fruitless. Finally, despite management's open letter of admonition under date of November 23, 1989, the union struck on December 18, 1989. On the ground that the strike was illegal because (a) it was started without the union having first exercised the ritht (sic) to collective bargaining in violation of Article 264 (a) of the Labor Code; (b) the strikers barricaded the company premises, barring ingress to and egress from the premises, which resulted to the trapping of officers and employees; (c) the strikers, on December 19, 1989, overturned the company's Isuzu Kc-20 Van with Plate No. 506 and, thereafter, smashed its windshield, headlights and sidemirrors; (d) the strikers brandished broken bottles of Coca-Cola and effectively prevented Ernesto de Castillo, the traffic dispatcher, and his driver, Narciso Urjal, from making any move to pacify the mob; and (e) the strike was

affected without any strike vote for the purpose and without the approval of the majority of the membership, and for not having reported the same to the Ministry (now Department) of Labor and Employment; a Complaint with Prayer for Preliminary Injunction was filed by Golden Donuts, Inc. on January 9, 1990, seeking the following relief (sic): a) to declare the strike illegal and to dismiss all officers of the union and members who participated in the commission of illegal acts; b) to pay petitioner actual damages as may be proven, the sum of Five Hundred Thousand (P500,000.00) Pesos and Three Hundred Thousand (P300,000.00) Pesos, respectively, as moral and exemplary damages, plus attorney's fees. After KMU's Atty. Pontenciano Flores was retained as counsel by the union and strikers, and sensing the gravity of the penalties attendant to the strike resorted to, including the financial award that may be due the Golden Donuts, Inc. and civil liabilities that may be awarded thereafter, said counsel pleaded for a comprome (sic). Hence, on July 16, 1990, a compromise agreement was entered into by the KMDD-CFW and Golden Donuts, Inc. whereby: 4.4. The parties agree to withdraw/dismiss with prejudice any and all cases, whether criminal, civil or labor filed against each other and agree to execute affidavit of desistance and/or Motion to Dismiss to ensure the dismissal of these cases. 5. Upon execution of this Agreement, the parties undertake not to file any other charges/complaints against each other as this act constitutes a general waiver or release/quitclaim by them (sic). apart from the separation pay said strikers, 262 in all, should receive from the corporation, the variable amounts of which are stated in the list of workers attached to the agreement. Out of the said 262 striking force, only the five (5) aforenamed complainants disagree (sic) and did not receive the amount due, arguing that the compromise agreement was entered into

by their counsel and the President of the Union without their individual consent and/or authority and that the same was not approved nor ratified by the majority of the union membership. Hence, these complaints which were filed on the dates mentioned earlier.4 On January 29, 1993, the Labor Arbiter rendered a decision upholding the dismissal of private respondents and ruling that they were bound by the compromise agreement entered into by the union with petitioners. The dispositive portion of the decision states: WHEREFORE, in conformity with the opinion above expressed, judgment is hereby rendered ordering the Golden Donuts, Inc.: 1. To pay complainants Rosita D. Tamargo, Lucita N. Tegio, Alma Magtarayo and Lenisa Hontiveros each the sum of Four Thousand Five Hundred (P4,500.00) Pesos as separation pay; 2. To pay complainant Agapito Macandog the following amounts: a. Four Thousand Five Hundred (P4,500.00) Pesos as separation pay; b. One Thousand (P1,000.00) Pesos as unpaid salary; c. One Thousand Three Hundred Twenty-Nine and Twenty Five (P1,329.25) Centavos as balance of his thirteenth month pay: 3. To pay complainants' counsel ten percent (10%) of the total amount due them as attorney's fees. SO ORDERED.5

In due time, private respondents interposed an appeal to the NLRC, claiming that the union had no authority to waive or compromise their individual rights and that they were not bound by the compromise agreement entered into by the union with petitioners. On October 29, 1993, the NLRC issued a resolution which disposed of the case as follows: WHEREFORE, the decision of the Labor Arbiter is hereby accordingly modified and a new one entered ordering respondent to reinstate complainants to their former positions without loss of seniority rights and back-wages limited to three years from the time of their dismissal up to the time of reinstatement. Furthermore, respondent is hereby ordered as follows : 1. To pay complainants Rosita D. Tamargo, Lucita N. Tegio, Alma Magtarayo and Leonisa Hontiveros each the sum of Four Thousand Five Hundred (P4,500.00) Pesos as separation pay; 2. To pay complainant Agapito Macandog the following amounts: a. Four Thousand Five Hundred (P4,500.00) Pesos as separation pay; b. On Thousand (P1,000.00) Pesos as unpaid salary; c. One Thousand Three Hundred Twenty-Nine and Twenty-Five (P1.329.25) Centavos as balance of his thirteenth month pay. 3. To pay complainant's counsel ten percent (10%) of the total amount due them as attorney's fees.6

On January 31, 1994, the NLRC denied petitioners' motion for reconsideration of the resolution, for lack of an assignment of "palpable" or "patent" errors.7 Hence, this petition.8 The questions presented in the petition are: (1) whether or waive not a union may compromise or waive the rights to security of tenure and money claims of its minority members, without the latter's consent, and (2) whether or not the compromise agreement entered into by the union with petitioner company, which has not been consented to nor ratified by respondents minority members has the effect of res judicata upon them. As a consequence of a negative ruling on the foregoing issues, there arises the issue of whether private respondents are entitled to monetary benefits subject of their individual complaints. The petition is anchored on the argument that a preponderant majority of the union members, that is, 257 out of 262 members, having agreed to a compromise settlement whereby they shall be paid separation pay in exchange for the dismissal of the criminal and unfair labor practice cases filed by petitioners against them, the union is authorized to waive and compromise even the claims of those who did not consent to the terms of such compromise agreement. In other words, petitioners claim that the compromise agreement is binding on union members including those who did not consent thereto, such as private respondents. We find the petition without merit. First, even if a clear majority of the union members agreed to a settlement with the employer, the union has no authority to compromise the individual claims of members who did not consent to such settlement. Rule 138 Section 23 of the 1964

Revised Rules of Court requires a special authority before an attorney may compromise his client's litigation. "The authority to compromise cannot lightly be presumed and should be duly established by evidence."9 In the case at bar, minority union members did not authorize the union to compromise their individual claims. Absent a showing of the union's special authority to compromise the individual claims of private respondents for reinstatement and back wages, there is no valid waiver of the aforesaid rights. As private respondents did not authorize the union to represent them not bound by the terms thereof.10 Second, whether minority union members who did not consent to a compromise agreement are bound by the majority decision approving a compromise settlement has been resolved in the negative.11 In La Campana, we explicitly declared: Money claims due to laborers cannot be the object of settlement or compromise effected by a union or counsel without the specific individual consent of each laborer concerned. The beneficiaries are the individual complainants themselves. The union to which they belong can only assist them but cannot decide for them.12 The case of La Campana was re-affirmed in the General Rubber case as follows: In the instant case, there is no dispute that private respondent has not ratified the Return-to-Work Agreement. It follows, and we so hold, that private respondents cannot be held bound by the Return-toWork Agreement. The waiver of money claims, which in this case were accrued money claims, by workers and employees must be regarded as a personal right, that is,

a right that must be personally exercised. For a waiver thereof to be legally effective, the individual consent or ratification of the workers or employees involved must be shown. Neither the officers nor the majority or the union had any authority to waive the accrued rights pertaining to the dissenting minority members, even under a collective bargaining agreement which provided for a "union shop". The same considerations of public policy which impelled the Court to reach the conclusion it did in La Campana, are equally compelling in the present case. The members of the union need the protective shield of this doctrine not only vis--vis their employer but also, at times, vis--vis the management of their own union, and at other times even against their own imprudence or impecuniousness.13 We have consistently ruled that "a compromise is governed by the basic principle that the obligations arising therefrom have the force of law between the parties."14 Consequently, private respondents may pursue their individual claims against petitioners before the Labor Arbiter. The judgment of the Labor Arbiter based on the compromise agreement in question does not have the effect ofres judicata upon private respondents who did not agree thereto. "A compromise, once approved by final orders of the court has the force of res judicata between the parties and should not be disturbed except for vices of consent or forgery."15 A compromise is basically a contract perfected by mere consent. "Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract."16 A compromise agreement is not valid when a party in the case has not signed the same or when someone signs for and in behalf of such party without authority to do so.17

In SMI Fish Industries, Inc. vs. NLRC,18 this Court declared that where the compromise agreement was signed by only three of the five respondents, the non-signatories cannot be bound by that amicable settlement. This is so as a compromise agreement is a contract and cannot affect third persons who are not parties to it.19 Private respondents were not parties to the compromise agreement. Hence, the judgment approving such agreement cannot have the effect of res judicata upon them since the requirement of identity of parties20 is not satisfied. A judgment upon a compromise agreement has all the force and effect of any other judgment, hence conclusive only upon parties thereto and their privies.21 Viewed in light of the foregoing legal principles, the conclusion is inescapable that private respondents are not bound by the compromise agreement entered into by the union without their consent. They have not waived their right to security of tenure nor can they be barred from entitlement of their individual claims. Since the Labor Arbiter found no evidence showing that private respondents committed any illegal act during the strike, petitioners' failure to reinstate them after the settlement of the strike amounts to illegal dismissal, entitling them to the twin reliefs of reinstatement and back wages.22 "The burden is on the employer to prove that the termination was after due process, and for a valid or authorized cause.23 For the two requisites in our jurisdiction to constitute a valid dismissal are: (a) the existence of a cause expressly stated in Article 282 of the Labor Code; and (b) the observance of due process, including the opportunity given the employee to be heard and defend himself."24 However, the separation pay must be deleted, as private respondents are entitled to reinstatement and back wages and

there is no showing of strained relations as would prevent their reinstatement.25 WHEREFORE, the Court DISMISSES the petition and AFFIRMS the NLRC resolution dated October 29, 1993 and the order dated January 31, 1994, in NLRC NCR Case Nos. 00-0804180-90, 00-09-04807-90, and 00-09-04840-90, with modification deleting the award of separation pay to private respondents.1wphi1.nt No costs. SO ORDERED.

G.R. No. 161933

April 22, 2008

submitted issues that were not passed upon are dismissed. The charge of unfair labor practice for bargaining in bad faith and the claim for damages relating thereto are hereby dismissed for lack of merit. Finally, the charge of unfair labor practice for gross violation of the economic provisions of the CBA is hereby dismissed for want of jurisdiction. SO ORDERED.3 Both petitioner and the Bank filed their respective motions for reconsideration, which were denied by the Secretary per Order dated August 30, 2001.4 Petitioner sought recourse with the CA via a petition for certiorari, and in the assailed Decision dated October 9, 20025 and Resolution dated January 26, 2004,6 the CA dismissed their petition and affirmed the Secretary's Orders. Hence, herein petition based on the following grounds: I. THE COURT A QUO ERRED IN DECIDING THAT THERE WAS NO BASIS FOR REVISING THE SCOPE OF EXCLUSIONS FROM THE APPROPRIATE BARGAINING UNIT UNDER THE CBA. II. THE COURT A QUO ERRED IN DECIDING THAT A ONE-MONTH OR LESS TEMPORARY OCCUPATION OF A POSITION (ACTING CAPACITY) DOES NOT MERIT ADJUSTMENT IN REMUNERATION.7

STANDARD CHARTERED BANK EMPLOYEES UNION (SCBEU-NUBE), petitioner, vs. STANDARD CHARTERED BANK and ANNEMARIE DURBIN, in her capacity as Chief Executive Officer, Philippines, Standard Chartered Bank, respondents. DECISION AUSTRIA-MARTINEZ, J.: For resolution is an appeal by certiorari filed by petitioner under Rule 45 of the Rules of Court, assailing the Decision1 dated October 9, 2002 and Resolution2 dated January 26, 2004 issued by the Court of Appeals (CA), dismissing their petition and affirming the Secretary of Labor and Employment's Orders dated May 31, 2001 and August 30, 2001. Petitioner and the Standard Chartered Bank (Bank) began negotiating for a new Collective Bargaining Agreement (CBA) in May 2000 as their 1998-2000 CBA already expired. Due to a deadlock in the negotiations, petitioner filed a Notice of Strike prompting the Secretary of Labor and Employment to assume jurisdiction over the labor dispute. On May 31, 2001, Secretary Patricia A. Sto. Tomas of the Department of Labor and Employment (DOLE) issued an Order with the following dispositive portion: WHEREFORE, PREMISES CONSIDERED, the Standard Chartered Bank and the Standard Chartered Bank Employees Union are directed to execute their collective bargaining agreement effective 01 April 2001 until 30 March 2003 incorporating therein the foregoing dispositions and the agreements they reached in the course of negotiations and conciliation. All other

The resolution of this case has been overtaken by the execution of the parties' 2003-2005 CBA. While this would render the case moot and academic, nevertheless, the likelihood that the same issues will come up in the parties' future CBA negotiations is not far-fetched, thus compelling its resolution. Courts will decide a question otherwise moot if it is capable of repetition yet evading review.[8] The CBA provisions in dispute are the exclusion of certain employees from the appropriate bargaining unit and the adjustment of remuneration for employees serving in an acting capacity for one month. In their proposal, petitioner sought the exclusion of only the following employees from the appropriate bargaining unit all managers who are vested with the right to hire and fire employees, confidential employees, those with access to labor relations materials, Chief Cashiers, Assistant Cashiers, personnel of the Telex Department and one Human Resources (HR) staff.9 In the previous 1998-2000 CBA,10 the excluded employees are as follows: A. All covenanted and assistant officers (now called National Officers) B. One confidential secretary of each of the: 1. Chief Executive, Philippine Branches 2. Deputy Chief Executive/Head, Corporate Banking Group 3. Head, Finance 4. Head, Human Resources

5. Manager, Cebu 6. Manager, Iloilo 7. Covenanted Officers provided said positions shall be filled by new recruits. C. The Chief Cashiers and Assistant Cashiers in Manila, Cebu and Iloilo, and in any other branch that the BANK may establish in the country. D. Personnel of the Telex Department E. All Security Guards F. Probationary employees, without prejudice to Article 277 (c) of the Labor Code, as amended by R.A. 6715, casuals or emergency employees; and G. One (1) HR Staff11 The Secretary, however, maintained the previous exclusions because petitioner failed to show that the employees sought to be removed from the list qualify for exclusion.12 With regard to the remuneration of employees working in an acting capacity, it was petitioner's position that additional pay should be given to an employee who has been serving in a temporary/acting capacity for one week. The Secretary likewise rejected petitioner's proposal and instead, allowed additional pay for those who had been working in such capacity for one month. The Secretary agreed with the Bank's position that a restrictive provision would curtail management's prerogative, and at the same time, recognized that employees should not be made to work in an acting capacity for long periods of time without adequate compensation.

The Secretary's disposition of the issues raised by petitioner were affirmed by the CA.13 The Court sustains the CA. Whether or not the employees sought to be excluded from the appropriate bargaining unit are confidential employees is a question of fact, which is not a proper issue in a petition for review under Rule 45 of the Rules of Court.14 This holds more true in the present case in which petitioner failed to controvert with evidence the findings of the Secretary and the CA. The disqualification of managerial and confidential employees from joining a bargaining unit for rank and file employees is already well-entrenched in jurisprudence. While Article 245 of the Labor Code limits the ineligibility to join, form and assist any labor organization to managerial employees, jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence, are likewise privy to sensitive and highly confidential records.15 In this case, the question that needs to be answered is whether the Bank's Chief Cashiers and Assistant Cashiers, personnel of the Telex Department and HR staff are confidential employees, such that they should be excluded. As regards the qualification of bank cashiers as confidential employees, National Association of Trade Unions (NATU) Republic Planters Bank Supervisors Chapter v. Torres16 declared that they are confidential employees having control, custody and/or access to confidential matters, e.g., the branch's cash position, statements of financial condition, vault combination, cash codes for telegraphic transfers, demand drafts and other negotiable instruments, pursuant to Sec. 1166.4 of the Central Bank Manual regarding joint custody, and therefore, disqualified from joining or assisting a union; or joining, assisting or forming any other labor organization.17

Golden Farms, Inc. v. Ferrer-Calleja18 meanwhile stated that "confidential employees such as accounting personnel, radio and telegraph operators who, having access to confidential information, may become the source of undue advantage. Said employee(s) may act as spy or spies of either party to a collective bargaining agreement."19 Finally, in Philips Industrial Development, Inc. v. National Labor Relations Commission,20 the Court designatedpersonnel staff, in which human resources staff may be qualified, as confidential employees because by the very nature of their functions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations. Petitioner insists that the foregoing employees are not confidential employees; however, it failed to buttress its claim. Aside from its generalized arguments, and despite the Secretary's finding that there was no evidence to support it, petitioner still failed to substantiate its claim. Petitioner did not even bother to state the nature of the duties and functions of these employees, depriving the Court of any basis on which it may be concluded that they are indeed confidential employees. As aptly stated by the CA: While We agree that petitioner's proposed revision is in accordance with the law, this does not necessarily mean that the list of exclusions enumerated in the 1998-2000 CBA is contrary to law. As found by public respondent, petitioner failed to show that the employees sought to be removed from the list of exclusions are actually rank and file employees who are not managerial or confidential in status and should, accordingly, be included in the appropriate bargaining unit. Absent any proof that Chief Cashiers and Assistant Cashiers, personnel of the Telex department and one

(1) HR Staff have mutuality of interest with the other rank and file employees, then they are rightfully excluded from the appropriate bargaining unit. x x x21(Emphasis supplied) Petitioner cannot simply rely on jurisprudence without explaining how and why it should apply to this case. Allegations must be supported by evidence. In this case, there is barely any at all. There is likewise no reason for the Court to disturb the conclusion of the Secretary and the CA that the additional remuneration should be given to employees placed in an acting capacity for one month. The CA correctly stated: Likewise, We uphold the public respondent's Order that no employee should be temporarily placed in a position (acting capacity) for more than one month without the corresponding adjustment in the salary. Such order of the public respondent is not in violation of the "equal pay for equal work" principle, considering that after one (1) month, the employee performing the job in an acting capacity will be entitled to salary corresponding to such position. xxxx

Thus, the Court reiterates the doctrine that: [T]he office of a petition for review on certiorari under Rule 45 of the Rules of Court requires that it shall raise only questions of law. The factual findings by quasijudicial agencies, such as the Department of Labor and Employment, when supported by substantial evidence, are entitled to great respect in view of their expertise in their respective fields. Judicial review of labor cases does not go so far as to evaluate the sufficiency of evidence on which the labor official's findings rest. It is not our function to assess and evaluate all over again the evidence, testimonial and documentary, adduced by the parties to an appeal, particularly where the findings of both the trial court (here, the DOLE Secretary) and the appellate court on the matter coincide, as in this case at bar. The Rule limits that function of the Court to the review or revision of errors of law and not to a second analysis of the evidence. x x x Thus, absent any showing of whimsical or capricious exercise of judgment, and unless lack of any basis for the conclusions made by the appellate court be amply demonstrated, we may not disturb such factual findings.23 WHEREFORE, the petition is DENIED. SO ORDERED.

In arriving at its Order, the public respondent took all the relevant evidence into account and weighed both parties arguments extensively. Thus, public respondent concluded that a restrictive provision with respect to employees being placed in an acting capacity may curtail management's valid exercise of its prerogative. At the same time, it recognized that employees should not be made to perform work in an acting capacity for extended periods of time without being adequately compensated. x x x22