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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, 2010
JAILE 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 Pay
Is 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, 2011
MAGDALA 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 XXII
CONCILIATION, 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 the company premises which
became the basis of the judgment of the Labor Arbiter and
NLRC.15

Thus, We agree with the CA that the arguments of respondent
KMLMS are bereft of merit as the May 6, 2002 strike was properly
declared an illegal strike and the prohibited and illegal acts
committed by union members during said strike were duly proved
by substantial evidence on record. Substantial evidence is that
amount of relevant evidence which a reasonable mind might accept
as adequate to justify a conclusion.16

Proper Sanctions for the Illegal Strike

We now come to the proper sanctions for the conduct of union
officers in an illegal strike and for union members who committed
illegal acts during a strike. The above-cited Art. 264 of the Code
presents a substantial distinction of the consequences of an illegal
strike between union officers and mere members of the union. For
union officers, knowingly participating in an illegal strike is a valid
ground for termination of their employment. But for union members
who participated in a strike, their employment may be terminated
only if they committed prohibited and illegal acts during the strike
and there is substantial evidence or proof of their participation, i.e.,
that they are clearly identified to have committed such prohibited
and illegal acts.

As earlier explained, the May 6, 2002 strike is illegal for non-
compliance with provisions of law and its implementing rules.
Consequently, the termination of employment of the 14 union
officers is proper.

In the case of union members who participated in the May 6, 2002
strike and committed prohibited and illegal acts of interference by
obstructing the free ingress to or egress from petitioners
compound, coercion and intimidation, the forfeiture of their
employment is also proper.

LA Aglibut found 27 union members to have committed the illegal
acts and properly declared the forfeiture of their employment status.
The NLRC found additional seven (7) union members committing
illegal acts and likewise declared the forfeiture of their employment
status. Thus, a total of 34 union members have been declared to
have lost their employment due to their commission of prohibited
and illegal acts during the illegal strike of May 6, 2002. Petitioners,
however, take umbrage for the non-declaration of the forfeiture of
employment of 72 other union members who were similarly situated
as the 34 union members whose employment was declared forfeited
in committing prohibited and illegal acts during the May 6, 2002
strike.

In affirming the NLRC Decision and refusing to declare the other
strikers as dismissed, the appellate court found that not all of the
photographs in evidence sufficiently show the strikers committing
illegal acts and that the identification of said strikers is questionable
considering that some were still identified even when their faces
were indiscernible from the photographs.

We, however, cannot agree with the appellate courts view that
there is no substantial proof of the identity of the other 72 striking
union members who committed prohibited and illegal activities. The
prohibited and illegal acts are undisputed. It is only the identity of
the striking union workers who committed said acts that is the crux
of the partial modification prayed for by petitioners.

In the instant case, We have pored over the attachments to the
pleadings of the parties and We find that petitioners have
substantially proved the identity of 72 other union members who
committed prohibited and illegal acts during the May 6, 2002 illegal
strike, thus:

First, the photographs17 submitted by petitioners graphically depict
and show the identities of the union members who committed
prohibited and illegal acts. Second, the identities of these union
members were substantially proved through the eyewitnesses18 of
petitioners who personally knew and recognized them as those who
committed the prohibited and illegal acts. Thus, the identities of
these 72 other union members who participated in the strike and
committed prohibited and illegal acts are not only shown through
the photographs, but are also sufficiently supported, as earlier cited,
by police blotter certifications,19 a criminal complaint for grave
coercion,20 and affidavits of several workers21 and a proprietor.22
As aptly pointed out by petitioners, while several union members
were penalized, other union members with them who are
identifiable in the photographs and attested to by witnesses were not
so penalized. This must be corrected, for these other unpenalized
union members were similarly situated with those penalized in that
they all committed the same prohibited and illegal acts during the
strike. Absent any exculpating circumstance, they must all suffer the
same fate with the statutorily provided consequence of termination
of employment.

Thus, We find that there was patent misappreciation of evidence
both by the LA and the NLRC, but it was not corrected by the CA.

Second Issue: Damages and Attorneys Fees

Anent the issue of the award of damages and attorneys fees, We
affirm the courts a quos uniform findings and rulings that while
petitioners prayed for damages and attorneys fees, they failed to
substantiate their claims.

Indeed, the grant of damages and attorneys fees requires factual,
legal and equitable justification; its basis cannot be left to
speculation or conjecture.23 Petitioners simply bank their claims on
the Affidavit24 of Julito Sioson. The claim for actual damages for
losses of PhP 10,000 daily or PhP 260,000 a month, as averred by
Sioson, cannot be sustained by a mere affidavit of the owner
without being buttressed by other documentary evidence or
unassailable substantiation. Even if attested to in an affidavit, the
amount claimed for actual damages is merely speculative at most.
To be recoverable, actual damages must not only be capable of
proof, but must actually be proved with reasonable degree of
certainty. The Court cannot simply rely on speculation, conjecture,
or guesswork in determining the amount of damages.25 Without
any factual basis, it cannot be granted.

That petitioners had to litigate on the occasion of the illegal strike
does not necessarily mean that attorneys fees will automatically be
granted. On one hand, in labor cases, attorneys fees granted under
Art. 11126 of the Labor Code apply to unlawful withholding of
wages, which indubitably does not apply to the instant case. On the
other hand, Art. 2208(2) of the Civil Code does not ipso facto grant
the award of damages in the form of attorneys fees to a winning
party, for the exercise of protection of ones right is not
compensable.

Besides, jurisprudence instructs that for the award of attorneys fees
to be granted, there must be factual, legal and equitable
justification.27 As the Court held in Filipinas Broadcasting
Network, Inc. v. Ago Medical and Educational Center-Bicol
Christian College of Medicine (AMEC-BCCM):

It is an accepted doctrine that the award thereof as an item of
damages is the exception rather than the rule, and counsels fees are
not to be awarded every time a party wins a suit. The power of the
court to award attorneys fees under Article 2208 of the Civil Code
demands factual, legal and equitable justification, without which the
award is a conclusion without a premise, its basis being improperly
left to speculation and conjecture. In all events, the court must
explicitly state in the text of the decision, and not only in the
decretal portion thereof, the legal reason for the award of attorneys
fees.28

The fact that the courts a quo did not award attorneys fees to
petitioners persuasively shows that they found no factual, legal and
equitable justification for it. Neither do We find any.
WHEREFORE, the instant petition is hereby PARTIALLY
GRANTED. The assailed June 30, 2009 CA Decision in CA-G.R.
SP Nos. 88614 and 88645 is AFFIRMED with MODIFICATION in
that the following additional 72 union members who committed
prohibited and illegal acts during the May 6, 2002 strike are also
declared to have forfeited their employment