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G.R. No.

142506 February 17, 2005


SCHERING EMPLOYEES L!OR "NION #SEL"$ a%& L"CI P.
SERENEO, 'e()()o%er*,
+*.
SCHERING PLO"GH CORPOR,ION, EPI,CIO ,I,ONG, -R., -OSE L.
ES,INGOR, .NNY ,. Y", LEO LO/"INRIO a%& RO!ER,O
,., re*'o%&e%(*.
D E C I S I O N
SN.O0L1G",IERRE2, J.:
Before us s a petton for revew on certiorari under Rue 45 of the 1997 Rues of
Cv Procedure, as amended, assang the Decson
1
dated December 10, 1999 and
Resouton
2
dated March 14, 2000 rendered by the Court of Appeas n CA-G.R. SP
No. 51361, entted "Schering Employees Labor Union (SELU) and Lucia Sereneo
vs. National Labor Relations Commission, Schering lough Corporation, Epitacio
!itong, "r., "ose L. Estingor, #anny !. $u, Leo Lo%uinario, and Roberto !ada."
The facts are:
The nstant controversy stemmed from a compant for unfar abor practce and
ega dsmssa ed wth the Labor Arbter by Scherng Empoyees Labor Unon
(SELU) and Luca P. Sereneo, SELUs presdent, petitioners, aganst Scherng Pough
Corporaton, Eptaco Ttong, |r., |ose L. Estngor, Danny T. Yu, Leo Loqunaro, and
Roberto Tada, respondents, docketed as NLRC NCR Case No. 00-10-06497-96.
Pettoners, n ther compant, aeged that sometme n |anuary 1977, pettoner
Luca P. Sereneo was empoyed as a professona medca representatve by
respondent company. Eventuay, she became a ed saes tranng manager wth a
monthy saary of P22,200.00. Durng her empoyment, she receved severa
awards from respondent n recognton of her remarkabe marketng exceence.
However, on |anuary 22, 1996, when she was eected presdent of SELU and
started the re-negotaton wth respondent company on the coectve barganng
agreement (CBA), respondents suddeny became dssatsed wth her saes
performance. On August 12, 1996, respondent company sent her a notce askng
her to submt an expanaton why she faed to mpement marketng pro|ects.
Agan, on September 13, 1996, she was requred to comment on the compant
chargng her wth msappropraton of company funds, fascaton and tamperng
of company records, and submsson of fase reports. Ths prompted pettoner
SELU to e wth the Natona Concaton and Medaton Board (NCMB) a notce of
strke on the grounds of unfar abor practce and unon bustng. But the notce of
strke was dsmssed by the NCMB n ts Resouton dated October 2, 1996.
Subsequenty, respondents sent pettoner Sereneo a Memorandum dated October
11, 1996 termnatng her servces for oss of trust and condence.
In ther answer, respondents dened the aegatons n the compant. They camed
that pettoner Sereneo, beng a professona medca representatve, performed
varous functons to ensure a protabe sae of ts pharmaceutca products. These
are: vstng hosptas and physcans concerned; preparng and submttng perodc
reports of her ca vsts to varous doctors, tnerary, and expenses. However, she
faed to perform these dutes, promptng respondent company to send her two (2)
etters dated September 5, 1996 and September 13, 1996, chargng her wth wfu
voaton of company rues and reguatons
3
and drectng her to submt a wrtten
expanaton. But she refused to submt her expanaton, promptng respondents to
evauate her records. They found her guty of dshonesty, wfu breach of trust
and wfu dsobedence. Respondents then sent her a notce termnatng her
servces ehectve October 11, 1996.
On |une 27, 1997, the Labor Arbter rendered a Decson ndng respondents guty
of unfar abor practce for dsmssng pettoner Sereneo egay and orderng
them (1) to renstate her to her former poston of medca representatve wthout
oss of senorty rghts and other prveges; and (2) to pay her, |onty and
severay, backwages and attorneys fee equvaent to 10% of the monetary
awards, thus:
"WHEREFORE, |udgment s hereby rendered decarng respondents guty of unfar
abor practce n dsmssng companant, orderng respondents to renstate
companant to her poston as professona medca representatve wthout oss of
senorty rghts and other prveges, and sentencng respondents, |onty and
severay, to pay companant fu backwages from October 11, 1996 up to the date
of her actua renstatement and a sum equvaent to ten (10%) percent of the
monetary awards as attorneys fees, a other cams are hereby ordered dsmssed.
SO ORDERED."
Upon appea, the Natona Labor Reatons Commsson (NLRC) promugated a
Decson dated February 27, 1998 reversng the Arbters Decson and dsmssng
pettoner Sereneos compant.
Pettoners then ed a moton for reconsderaton but was dened by the NLRC n a
Resouton dated Apr 30, 1998. Hence, they ed wth ths Court a petton for
certorar whch we referred to the Court of Appeas pursuant to our rung n St.
&artin's (uneral )ome vs. NLRC.
4
On December 10, 1999, the Appeate Court rendered a Decson amrmng the
NLRCs Decson.
The Court of Appeas hed:
"After thoroughy readng the peadngs and annexes especay the questoned
decson and resouton, ths Court found no trace at a of grave abuse of dscreton
on the part of the respondent Commsson. Instead, ths Court found the
Commssons verdct to be supported by substanta evdence and n accordance
wth the aw.
x x x x x x
Furthermore, ths Court fuy agrees wth the observatons of respondent NLRC:
Moreover, on the ssue of wfu dsobedence to a awfu order, records aso
dscosed that despte two (2) memos ssued by the respondent to the
companant, the atter never bothered to answer nor expan her sde to the
former. Of course companant tred to |ustfy her nacton by camng that t woud
have been fute anyway to expan snce respondent was bent n gettng rd of her.
Such reacton, however, n the ght of what we perceved as ack of substanta
evdence to warrant a ndng of unfar abor practce ony gves an mpresson
that 3o4'5a)%a%( 6a& )%&ee& bee% re4)*e& )% 6er &u()e*. Ths mpresson
can ceary be geaned from the ateratons n the copes of ca cards submtted. If
at a, companants faure to refute pont by pont the specc charges eveed
aganst her worked to her dsadvantage. A tod, t woud appear that t was not
respondent who reed on the genera prncpes of aw but rather the companant
and unfortunatey the Labor Arbter a quo who opted to brush asde the cam of
vad dsmssa through a sweepng statement that no supportng substanta
evdence were presented by respondent when n truth and n fact, there were.
Reatedy, even the cam of dena of due process shoud not have escaped the
Labor Arbters |udcous eyes had he been more prudent. The records ceary show
that companant was accorded the rght to be heard as she was gven ampe tme
to expan and answer the charges aganst her but opted not to on account of the
mstaken noton that to do so woud ony be an exercse n futty. It has aready
been rued by the hghest court due process smpy means the opportunty to be
heard before |udgment s rendered. Respondent coud, therefore, not be fauted f t
decded to exercse ts management prerogatve to mpose dscpne on an errng
empoyee.
Ths Court re|ects the contenton of petton that the decson of respondent NLRC s
nu and vod because t was prepared by ony two Commssoners. Sec. 4 (b), Rue
VII of the New Rues of Procedure of the Natona Labor Reatons Commsson
states:
The presence of at east two (2) Commssoners of a Dvson sha consttute a
quorum to decde any case/matter before t. The concurrence of two (2)
Commssoners of a Dvson sha be necessary for the pronouncement of a
|udgment or resouton.
Whenever the requred membershp n a Dvson s not compete and the
concurrence of two (2) Commssoners to arrve at a |udgment or resouton cannot
be obtaned, the Charman sha desgnate such number of addtona
Commssoners from the other Dvsons as may be necessary from the same
sector.
The pettoners have not sumcenty shown grounds that may urge ths Court to
ssue the prerogatve wrt of certorar.
WHEREFORE, for ack of mert, the petton s DISMISSED.
SO ORDERED."
On |anuary 12, 2000, pettoners ed a moton for reconsderaton, but was dened
by the Appeate Court n a Resouton dated March 14, 2000.
The basc ssue for our determnaton s whether pettoner Sereneo was egay
dsmssed from empoyment.
After a cose revew of the records, we sustan the ndngs of the NLRC, amrmed by
the Court of Appeas, that *6e 7a5*)8e& 3o4'a%y 3a55 3ar&* by a5(er)%9 (6e
&a(e* o7 6er a3(ua5 +)*)(* (o '6y*)3)a%*. On August 27, 1997, *6e :a* 7ou%&
9u)5(y o7 4)*a''ro'r)a()o% o7 3o4'a%y 7u%&* by 7a5*)7y)%9 7oo& re3e)'(*.
,6e*e )%7ra3()o%* *6o: (6a( *6e )* &)*6o%e*(. C5ear5y, *6e brea36e& (6e
(ru*( re'o*e& )% 6er by re*'o%&e%(*. Hence, her dsmssa from the servce s
n order.
Under Artce 282 of the Labor Code, as amended,
5
fraud or wfu breach by the
empoyee of trust reposed n hm by hs empoyer or duy authorzed
representatve s a ground for termnatng an empoyment. Pettoners accusaton
of unon bustng s bereft of any proof. We scanned the records very carefuy and
faed to dscern any evdence to sustan such charge.
In !iu vs. NLRC,
6
we hed:
"x x x. I( )* (6e u%)o%, (6ere7ore, :6o 6a& (6e bur&e% o7 'roo7 (o 're*e%(
*ub*(a%()a5 e+)&e%3e (o *u''or( )(* a55e9a()o%* (of unfar abor practces
commtted by management).
"x x x.
"x x x, but n the case at bar the facts and the evdence dd not estabsh even at
east a ratona bass why the unon woud wed a strke based on aeged unfar
abor practces t dd not even bother to substantate durng the concaton
proceedngs. I( )* %o( e%ou96 (6a( (6e u%)o% be5)e+e& (6a( (6e e4'5oyer
3o44)((e& a3(* o7 u%7a)r 5abor 'ra3()3e :6e% (6e 3)r3u4*(a%3e* 35ear5y
%e9a(e e+e% a prima facie *6o:)%9 (o :arra%( *u36 a be5)e7.;
<HEREFORE, the petton s DENIED. The assaed Decson dated December 10,
1999 and Resouton dated March 14, 2000 of the Court of Appeas n CA-G.R. SP
No. 51361 are hereby AFFIRMED. Costs aganst pettoners.
SO ORDERED.
G.R. No. 10015= -u%e 2, 1>>2
S,. SCHOLS,IC?S COLLEGE, pettoner,
vs.
HON. R"!EN ,ORRES, )% 6)* 3a'a3)(y a* SECRE,RY OF L!OR N.
EMPLOYMEN,, a%& SMHNG NG MNGGG<NG PNG1E."@SYON
S S,. ES@OLS,I@1NF,E", respondents.

!ELLOSILLO, J.:
The prncpa ssue to be resoved n ths recourse s whether strkng unon
members termnated for abandonment of work after fang to compy wth return-
to-work orders of the Secretary of Labor and Empoyment (SECRETARY, for brevty)
shoud by aw be renstated.
On 20 |uy 1990, pettoner St. Schoastca's Coege (COLLEGE, for brevty) and
prvate respondent Samahan ng Manggagawang Pang-Edukasyon sa Sta.
Eskoastka-NAFTEU (UNION, for brevty) ntated negotatons for a rst-ever
coectve barganng agreement. A deadock n the negotatons prompted the
UNION to e on 4 October 1990 a Notce of Strke wth the Department of Labor
and Empoyment (DEPARTMENT, for brevty), docketed as NCMB-NCR-NS-10-826.
On 5 November 1990, the UNION decared a strke whch parayzed the operatons
of the COLLEGE. Ahectng as t dd the nterest of the students, pubc respondent
SECRETARY mmedatey assumed |ursdcton over the abor dspute and ssued on
the same day, 5 November 1990, a return-to-work order. The foowng day, 6
November 1990, nstead of returnng to work, the UNION ed a moton for
reconsderaton of the return-to-work order questonng inter alia the assumpton of
|ursdcton by the SECRETARY over the abor dspute.
On 9 November 1990, the COLLEGE sent ndvdua etters to the strkng
empoyees en|onng them to return to work not ater than 8:00 o'cock A.M. of 12
November 1990 and, at the same tme, gvng notce to some twenty-three (23)
workers that ther return woud be wthout pre|udce to the ng of approprate
charges aganst them. In response, the UNION presented a st of (6) demands to
the COLLEGE n a daogue conducted on 11 November 1990. The most mportant
of these demands was the uncondtona acceptance back to work of the strkng
empoyees. But these were aty re|ected.
Lkewse, on 9 November 1990, respondent SECRETARY dened reconsderaton of
hs return-to-work order and sterny warned the strkng empoyees to compy wth
ts terms. On 12 November 1990, the UNION receved the Order.
Thereafter, partcuary on 14 and 15 November 1990, the partes hed concaton
meetngs before the Natona Concaton and Medaton Board where the UNION
pruned down ts demands to three (3), vi*.+ that strkng empoyees be renstated
under the same terms and condtons before the strke; that no retaatory or
dscpnary acton be taken aganst them; and, that CBA negotatons be
contnued. However, these ehorts proved fute as the COLLEGE remaned
steadfast n ts poston that any return-to-work oher shoud be uncondtona.
On 16 November 1990, the COLLEGE manfested to respondent SECRETARY that
the UNION contnued to defy hs return-to-work order of 5 November 1990 so that
"approprate steps under the sad crcumstances" may be undertaken by hm.
1
On 23 November 1990, the COLLEGE maed ndvdua notces of termnaton to
the strkng empoyees, whch were receved on 26 November 1990, or ater. The
UNION omcers and members then tred to return to work but were no onger
accepted by the COLLEGE.
On 5 December 1990, a Compant for Iega Strke was ed aganst the UNION, ts
omcers and severa of ts members before the Natona Labor Reatons
Commsson (NLRC), docketed as NLRC Case No. 00-12-06256-90.
The UNION moved for the enforcement of the return-to-work order before
respondent SECRETARY, ctng "seectve acceptance of returnng strkers" by the
COLLEGE. It aso sought dsmssa of the compant. Snce then, no further hearngs
were conducted.
Respondent SECRETARY requred the partes to submt ther respectve poston
papers. The COLLEGE prayed that respondent SECRETARY uphod the dsmssa of
the empoyees who deed hs return-to-work order.
On 12 Apr 1991, respondent SECRETARY ssued the assaed Order whch, inter
alia, drected the renstatement of strkng UNION members, premsed on hs
ndng that no voent or otherwse ega act accompaned the conduct of the
strke and that a edgng UNION ke prvate respondent was "naturay expected
to exhbt unbrded f nexperenced enthusasm, n assertng ts
exstence".
2
Nevertheess, the aforesad Order hed UNION omcers responsbe for
the voaton of the return-to-work orders of 5 and 9 November 1990 and,
correspondngy, sustaned ther termnaton.
Both partes moved for parta reconsderaton of the Order, wth pettoner
COLLEGE questonng the wsdom of the renstatement of strkng UNION members,
and prvate respondent UNION, the dsmssa of ts omcers.
On 31 May 1991, n a Resouton, respondent SECRETARY dened both motons.
Hence, ths Petton for Certiorari, wth Prayer for the Issuance of a Temporary
Restranng Order.
On 26 |une 1991, We restraned the SECRETARY from enforcng hs assaed Orders
nsofar as they drected the renstatement of the strkng workers prevousy
termnated.
Pettoner questons the assumpton by respondent SECRETARY of |ursdcton to
decde on termnaton dsputes, mantanng that such |ursdcton s vested nstead
n the Labor Arbter pursuant to Art. 217 of the Labor Code, thus -
Art. 217. "urisdiction o, Labor -rbiters and the Commission. . (a)
Except as otherwse provded under ths Code, the Labor Arbters
sha have orgna and excusve |ursdcton to hear and decde,
wthn thrty (30) caendar days after the submsson of the case by
the partes for decson wthout extenson, the foowng cases
nvovng a workers, whether agrcutura or non-agrcutura: . . .
2. Termnaton dsputes . . . 5. Cases arsng from any voaton of
Artce 264 of ths Code, ncudng questons on the egaty of
strkes and ock-outs . . .
In support of ts poston, pettoner nvokes Our rung n -L v. Secretary o, Labor
and Employment
A
where We hed:
The abor Secretary exceeded hs |ursdcton when he restraned
PAL from takng dscpnary measures aganst ts guty empoyees,
for, under Art. 263 of the Labor Code, a that the Secretary may
en|on s the hodng of the strke but not the company's rght to
take acton aganst unon omcers who partcpated n the ega
strke and commtted ega acts.
Pettoner further contends that foowng the doctrne ad down n Sarmiento v.
!uico
4
and Union o, (ilipro Employees v. Nestle hilippines, /nc.,
5
workers who
refuse to obey a return-to-work order are not entted to be pad for work not done,
or to renstatement to the postons they have abandoned of ther refusa to return
thereto as ordered.
Takng a contrary stand, prvate respondent UNION peads for renstatement of ts
dsmssed omcers consderng that the act of the UNION n contnung wth ts
pcket was never characterzed as a "brazen dsregard of successve ega orders",
whch was ready apparent n Union (ilipro Employees v. Nestle hilippines, /nc.,
supra, nor was t a wfu refusa to return to work, whch was the bass of the
rung n Sarmiento v. !uico, supra. The faure of UNION omcers and members to
mmedatey compy wth the return-to-work orders was not because they wanted
to defy sad orders; rather, they hed the vew that academc nsttutons were not
ndustres ndspensabe to the natona nterest. When respondent SECRETARY
dened ther moton for reconsderaton, however, the UNION ntmated that ehorts
were mmedatey ntated to fashon out a reasonabe return-to-work agreement
wth the COLLEGE, abet, f faed.
The ssue on whether respondent SECRETARY has the power to assume |ursdcton
over a abor dspute and ts ncdenta controverses, causng or key to cause a
strke or ockout n an ndustry ndspensabe to the natona nterest, was aready
setted n /nternational harmaceuticals, /nc. v. Secretary o, Labor and
Employment.
6
Theren, We rued that:
. . . |T|he Secretary was expcty granted by Artce 263 (g) of the
Labor Code the authorty to assume |ursdcton over a abor
dspute causng or key to cause a strke or ockout n an ndustry
ndspensabe to the natona nterest, and decde the same
accordngy. Necessary, ths authorty to assume |ursdcton over
the sad abor dspute must ncude and extend to a questons and
ncude and extend to a questons and controverses arsng
therefrom, ncudng cases over whch the Labor Arbter has
excusve |ursdcton.
And rghty so, for, as found n the aforesad case, Artce 217 of the Labor Code dd
contempate of exceptons thereto where the SECRETARY s authorzed to assume
|ursdcton over a abor dspute otherwse beongng excusvey to the Labor
Arbter. Ths s ready evdent from ts openng provso readng "(e)xcept as
otherwse provded under ths Code . . .
Prevousy, We hed that Artce 263 (g) of the Labor Code was broad enough to
gve the Secretary of Labor and Empoyment the power to take |ursdcton over an
ssue nvovng unfar abor practce.
7
At rst gance, the rungs above stated seem to run counter to that of -L v.
Secretary o, Labor and Employment, supra, whch was cted by pettoner. But the
conct s ony apparent, not rea.
To reca, We rued n the atter case that the |ursdcton of the Secretary of Labor
and Empoyment n assumpton and/or certcaton cases s mted to the ssues
that are nvoved n the dsputes or to those that are submtted to hm for
resouton. The seemng dherence s, however, reconcabe. Snce the matter on
the egaty or egaty of the strke was never submtted to hm for resouton, he
was thus found to have exceeded hs |ursdcton when he restraned the empoyer
from takng dscpnary acton aganst empoyees who staged an ega strke.
Before the Secretary of Labor and Empoyment may take cognzance of an ssue
whch s merey ncdenta to the abor dspute, therefore, the same must be
nvoved n the abor dsputed tsef, or otherwse submtted to hm for resouton. If
t was not, as was the case n -L v. Secretary or Labor and Employment,
supra, and he nevertheess acted on t, that assumpton of |ursdcton s
tantamount to a grave abuse of dscreton. Otherwse, the rung n /nternational
harmaceuticals, /nc. v. Secretary o, Labor and Employment, supra, w appy.
The submsson of an ncdenta ssue of a abor dspute, n assumpton and/or
certcaton cases, to the Secretary of Labor and Empoyment for hs resouton s
thus one of the nstances referred to whereby the atter may exercse concurrent
|ursdcton together wth the Labor Arbters.
In the nstant petton, the COLLEGE n ts Manfestaton, dated 16 November 1990,
asked the "Secretary of Labor to take the approprate steps under the sad
crcumstances." It kewse prayed n ts poston paper that respondent SECRETARY
uphod ts termnaton of the strkng empoyees. Upon the other hand, the UNION
questoned the termnaton of ts omcers and members before respondent
SECRETARY by movng for the enforcement of the return-to-work orders. There s
no dspute then that the ssue on the egaty of the termnaton of strkng
empoyees was propery submtted to respondent SECRETARY for resouton.
Such an nterpretaton w be n consonance wth the ntenton of our abor
authortes to provde workers mmedate access to ther rghts and benets
wthout beng nconvenenced by the arbtraton and tgaton process that prove
to be not ony nerve-wrackng, but nancay burdensome n the ong run. Soca
|ustce egsaton, to be truy meanngfu and rewardng to our workers, must not
be hampered n ts appcaton by ong-wnded arbtraton and tgaton. Rghts
must be asserted and benets receved wth the east nconvenence. For, abor
aws are meant to promote, not defeat, soca |ustce (&aternity Children0s )ospital
v. )on. Secretary o, Labor ). = After a, Art. 4 of the Labor Code does state that a
doubts n the mpementaton and nterpretaton of ts provsons, ncudng ts
mpementng rues and reguatons, sha be resoved n favor of abor.
We now come to the more pvota queston of whether strkng unon members,
termnated for abandonment of work after fang to compy strcty wth a return-
to-work order, shoud be renstated.
We quote hereunder the pertnent provsons of aw whch govern the ehects of
defyng a return-to-work order:
1. Artce 263 (g) of the Labor Code -
Art. 263. Stri1es, pic1eting, and loc1outs. . . . . (g) When, n hs
opnon, there exsts a abor dspute causng or key to cause a
strke or ockout n an ndustry ndspensabe to the natona
nterest, the Secretary of Labor and Empoyment may assume
|ursdcton over the dspute and decde t or certfy the same to the
Commsson for compusory arbtraton. Such assumpton or
certcaton sha have the ehect of automatcay en|onng the
ntended or mpendng strke or ockout as speced n the
assumpton or certcaton order. /, one has already ta1en place at
the time o, assumption or certi2cation, all stri1ing or loc1ed out
employees shall immediately return to 3or1 and the empoyer sha
mmedatey resume operatons and readmt a workers under the
same terms and condtons prevang before the strke or ockout.
The Secretary of Labor and Empoyment or the Commsson may
seek the assstance of aw enforcement agences to ensure
compance wth ths provson as we as wth such orders as he
may ssue to enforce the same . . . (as amended by Sec. 27, R.A.
6715; emphass supped).
2. Artce 264, same Labor Code -
Art. 264. rohibited activities. . (a) No abor organzaton or
empoyer sha decare a strke or ockout wthout rst havng
barganed coectvey n accordance wth Tte VII of ths Book or
wthout rst havng ed the notce requred n the precedng
Artce or wthout the necessary strke or ockout vote rst havng
been obtaned and reported to the Mnstry.
No stri1e or loc1out shall be declared a,ter assumption o,
4urisdiction by the resident or the &inister or after certcaton or
submsson of the dspute to compusory or vountary arbtraton or
durng the pendency of cases nvovng the same grounds for the
strke or ockout
. . . (emphass supped).
Any worker whose empoyment has been termnated as
consequence of an unawfu ockout sha be entted to
renstatement wth fu back wages. -ny union o5cer 3ho
1no3ingly participates in an illegal stri1e and any 3or1er or union
o5cer 3ho 1no3ingly participates in the commission o, illegal acts
during a stri1e may be declared to have lost his employment
status+ rovided, !hat mere participation o, a 3or1er in a la3,ul
stri1e shall not constitute su5cient ground ,or termination o, his
employment, even i, a replacement had been hired by the
employer during such la3,ul stri1e . . . (emphass supped).
3. Secton 6, Rue IX, of the New Rues of Procedure of the NLRC (whch took ehect
on 31 August 1990) -
Sec. 6. E6ects o, #e2ance. . Non-compance wth the certcaton
order of the Secretary of Labor and Empoyment or a return to
work order of the Commsson sha be consdered an ega act
commtted n the course of the strke or ockout and sha authorze
the Secretary of Labor and Empoyment or the Commsson, as the
case may be, to enforce the same under pain or loss o,
employment status or enttement to fu empoyment benets
from the ockng-out empoyer or backwages, damages and/or
other postve and/or amrmatve reefs, even to crmna
prosecuton aganst the abe partes . . . (emphass supped).
Prvate respondent UNION mantans that the reason they faed to mmedatey
compy wth the return-to-work order of 5 November 1990 was because they
questoned the assumpton of |ursdcton of respondent SECRETARY. They were of
the mpresson that beng an academc nsttuton, the schoo coud not be
consdered an ndustry ndspensabe to natona nterest, and that pendng
resouton of the ssue, they were under no obgaton to mmedatey return to
work.
Ths poston of the UNION s smpy awed. Artce 263 (g) of the Labor Code
provdes that f a strke has aready taken pace at the tme of assumpton, "a
strkng . . . empoyees sha mmedatey return to work." Ths means that by ts
very terms, a return-to-work order s mmedatey ehectve and executory
notwthstandng the ng of a moton for reconsderaton (University o, Sto. !omas
v. NLRC).
>
It must be strcty comped wth even durng the pendency of any
petton questonng ts vadty (Union o, (ilipro Employees v. Nestle hilippines,
/nc., supra). After a, the assumpton and/or certcaton order s ssued n the
exercse of respondent SECRETARY's compusve power of arbtraton and, unt set
asde, must therefore be mmedatey comped wth.
The ratonae for ths rue s expaned n University o, Sto. !omas v. NLRC, supra,
citing hilippine -ir Lines Employees -ssociation v. hilippine -ir Lines, /nc.,
10
thus
-
To say that ts (return-to-work order) ehectvty must wat
amrmance n a moton for reconsderaton s not ony to
emascuate t but ndeed to defeat ts mport, for by then the
deadne xed for the return to work woud, n the ordnary course,
have aready passed and hence can no onger be amrmed nsofar
as the tme eement s concerned.
Moreover, the assumpton of |ursdcton by the Secretary of Labor and
Empoyment over abor dsputes nvovng academc nsttutons was aready
uphed n hilippine School o, 7usiness -dministration v. Noriel
11
where We rued
thus:
There s no doubt that the on-gong abor dspute at the schoo
adversey ahects the natona nterest. The schoo s a duy
regstered educatona nsttuton of hgher earnng wth more or
ess 9,000 students. The on-gong work stoppage at the schoo
unduy pre|udces the students and w enta great oss n terms of
tme, ehort and money to a concerned. More mportant, t s not
amss to menton that the schoo s engaged n the promoton of
the physca, nteectua and emotona we-beng of the country's
youth.
Respondent UNION's faure to mmedatey compy wth the return-to-work order of
5 November 1990, therefore, cannot be condoned.
The respectve abtes of strkng unon omcers and members who faed to
mmedatey compy wth the return-to-work order s outned n Art. 264 of the
Labor Code whch provdes that any decaraton of a strke or ockout after the
Secretary of Labor and Empoyment has assumed |ursdcton over the abor
dspute s consdered an ega. act. Any worker or unon omcer who knowngy
partcpates n a strke defyng a return-to-work order may, consequenty, "be
decared to have ost hs empoyment status."
Secton 6 Rue IX, of the New Rues of Procedure of the NLRC, whch provdes the
penates for defyng a certcaton order of the Secretary of Labor or a return-to-
work order of the Commsson, aso reterates the same penaty. It speccay
states that non-compance wth the aforesad orders, whch s consdered an ega
act, "sha authorze the Secretary of Labor and Empoyment or the Commsson . . .
to enforce the same under pan of oss of empoyment status." Under the Labor
Code, assumpton and/or certcaton orders are smary treated.
Thus, we hed n Sarmiento v. !uico, supra, that by nsstng on stagng the
restraned strke and deanty pcketng the company premses to prevent the
resumpton of operatons, the strkers have forfeted ther rght to be readmtted,
havng abandoned ther postons, and so coud be vady repaced.
We recenty reterated ths stance n (ederation o, (ree 8or1ers v.
/nciong,
12
wheren we cted Union o, (ilipro Employees v. Nestle hilippines, /nc.,
supra, thus -
A strke undertaken despte the ssuance by the Secretary of Labor
of an assumpton or certcaton order becomes a prohbted
actvty and thus ega, pursuant to the second paragraph of Art.
264 of the Labor Code as amended . . . The unon omcers and
members, as a resut, are deemed to have ost ther empoyment
status for havng knowngy partcpated n an ega act.
Despte knowedge of the rung n Sarmiento v. !uico, supra, records of the case
revea that prvate respondent UNION opted to defy not ony the return-to-work
order of 5 November 1990 but aso that of 9 November 1990.
Whe they cam that after recevng copy of the Order of 9 November 1990
ntatves were mmedatey undertaken to fashon out a return-to-work agreement
wth management, st, the unrebutted evdence remans that the strkng unon
omcers and members tred to return to work ony eeven (11) days after the
concaton meetngs ended n faure, or twenty (20) days after they receved copy
of the rst return-to-work order on 5 November 1990.
The sympathy of the Court whch, as a rue, s on the sde of the aborng casses
(Reliance Surety 9 /nsurance Co., /nc. v. NLRC),
1A
cannot be extended to the
strkng unon omcers and members n the nstant petton. There was wfu
dsobedence not ony to one but two return-to-work orders. Consderng that the
UNION conssted many of teachers, who are supposed to be we-ettered and
we-nformed, the Court cannot overook the pan arrogance and prde dspayed
by the UNION n ths abor dspute. Despte contanng threats of dscpnary acton
aganst some unon omcers and members who actvey partcpated n the strke,
the etter dated 9 November 1990 sent by the COLLEGE en|onng the unon
omcers and members to return to work on 12 November 1990 presented the
workers an opportunty to return to work under the same terms and condtons or
pror to the strke. Yet, the UNION decded to gnore the same. The COLLEGE,
correspondngy, had every rght to termnate the servces of those who chose to
dsregard the return-to-work orders ssued by respondent SECRETARY n order to
protect the nterests of ts students who form part of the youth of the and.
Lasty, the UNION omcers and members aso argue that the doctrne ad down
n Sarmiento v. !uico, supra, and Union o, (ilipro Employees v. Nestle, hilippines,
/nc., supra, cannot be made appcabe to them because n the atter two cases,
workers deed the return-to-work orders for more than ve (5) months. Ther
deance of the return-to-work order, t s sad, dd not ast more than a month.
Agan, ths ne of argument must be re|ected. It s cear from the provsons above
quoted that from the moment a worker dees a return-to-work order, he s deemed
to have abandoned hs |ob. It s aready n tsef knowngy partcpatng n an ega
act. Otherwse, the worker w |ust smpy refuse to return to hs work and cause a
standst n the company operatons whe retanng the postons they refuse to
dscharge or aow the management to (Sarmiento v. !uico, supra). Sumce t to
say, n(ederation o, (ree 8or1ers v. /nciong, supra, the workers were termnated
from work after defyng the return-to-work order for ony nne (9) days. It s ndeed
nconcevabe that an empoyee, despte a return-to-work order, w be aowed n
the nterm to stand akmbo and wat unt ve (5) orders sha have been ssued for
ther return before they report back to work. Ths s absurd.
In ne, respondent SECRETARY gravey abused hs dscreton when he ordered the
renstatement of strkng unon members who refused to report back to work after
he ssued two (2) return-to-work orders, whch n tsef s knowngy partcpatng n
an ega act. The Order n queston s, certany, contrary to exstng aw and
|ursprudence.
WHEREFORE, the Petton for Certiorari s hereby GRANTED. The Order of 12 Apr
1991 and the Resouton 31 May 1991 both ssued by respondent Secretary of
Labor and Empoyment are SET ASIDE nsofar as they order the renstatement of
strkng unon members termnated by pettoner, and the temporary restranng
order We ssued on |une 26, 1991, s made permanent.
No costs.
SO ORDERED.
G.R. No. 120751 Mar36 17, 1>>>
PHIMCO IN."S,RIES, INC., pettoner,
vs.
HONOR!LE C,ING SECRE,RY OF L!OR -OSE !RILLN,ES a%& PHIMCO
IN."S,RIES L!OR SSOCI,ION, respondents.

P"RISIM, J.:
At bar s a Petton for Certiorari under Rue 65 of the Revsed Rues of Court,
seekng to set asde the |uy 7, 1995 Order
1
of the then Actng Secretary |ose
Brantes of the Department of Labor and Empoyment, n NCMB-NCR-NS-03-122-
95, on the ground of grave abuse of dscreton amountng to ack or excess of
|ursdcton.
The antecedent facts are, as foows:
On March 9, 1995, the prvate respondent, Phmco Industres Labor Assocaton
(PILA), duy certed coectve barganng representatve of the day pad workers
of the pettoner, Phmco Industres Inc. (PHIMCO), ed a notce of strke wth the
Natona Concaton and Medaton Board, NCR, aganst PHIMCO, a corporaton
engaged n the producton of matches, after a deadock n the coectve barganng
and negotaton. On Apr 21, 1995, when the severa concaton conferences
caed by the contendng partes faed to resove ther dherences PILA, composed
of 352
2
members, staged a strke.
On |une 7, 1995, PILA presented a petton for the nterventon of the Secretary of
Labor n the resouton of the abor dspute, to whch petton PHIMCO opposed.
Pendng resouton of the sad petton or on |une 26, 1995, to be precse, PHIMCO
sent notce of termnaton to some 47
A
workers ncudng severa unon omcers.
On |uy 7, 1995, the then Actng Secretary of Labor |ose Brantes assumed
|ursdcton over the abor dspute and ssued hs Order rung, thus:
WHEREFORE, ABOVE PREMISES CONSIDERED, and pursuant to Artce 263
(g) of the Labor Code, as amended, ths omce hereby assumes |ursdcton
over the dspute at, Phmco ndustres, Inc.
Accordngy, a the strkng workers, except those who have been handed
down termnaton papers on |une 26, 1995, are hereby drected to return to
work wth twenty-four (24) hours from recept of ths Order and for the
Company to accept them back under the same terms and condtons
prevang pror to the strke.
The partes are further ordered to cease and desst from commttng any
act that w aggravate the stuaton.
To expedte the resouton of ths dspute, the partes are drected to submt
ther poston papers and evdence wthn ten (10) days from recept of ths
Order.
SO ORDERED.
4
On |uy 12, 1995, pettoner brought the present petton; theorzng, that:
I
THE HONORABLE ACTING SECRETARY |OSE BRILLANTES ACTED WITH THE
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF EXCESS OF
|URISDICTION IN ISSUING THE ASSAILED ORDER.
II
THE HONORABLE ACTING SECRETARY |OSE BRILLANTES ACTED WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
|URISDICTION WHEN HE WENT BEYOND THE BASIS FOR ASSUMPTION OF
|URISDICTION UNDER ART. 263 OF THE LABOR CODE.
5
On |uy 31, 1995, two weeks after the ng of the Petton, the pubc respondent
ssued another Order
6
temporary hodng n abeyance the mpementaton of the
questoned Order dated |uy 7, 1995 for a perod of thrty (30) day; drectng, as
foows:
WHEREFORE PREMISES CONSIDERED, the mpementaton of our Order
dated 7 |uy 1995 hereby temporary hed n abeyance for a perod of
thrty (30) days ehectve from recept thereof pendng the prvate
negotatons of the partes for the settement of ther abor dspute.
Thereafter, both the Unon and the Company are drected to submt to ths
Omce the resut of ther negotatons for our evauaton and approprate
acton.
SO ORDERED.
7
The pvota ssue here s: whether or not the pubc respondent acted wth grave
abuse of dscreton amountng to ack or excess of |ursdcton n assumng
|ursdcton over sub|ect abor dspute.
The petton s mpressed wth mert.
Art. 263, paragraph (g) of the Labor Code, provdes:
(g) When, n hs opnon, there exst a abor dspute causng or key to
cause a strke or ockout n an ndustry ndspensabe to the natona
nterest, the Secretary of Labor and Empoyment may assume |ursdcton
over the dspute and decde t or certfy the same to the Commsson for
compusory arbtraton . . .
The Labor Code vests n the Secretary of Labor the dscreton to determne what
ndustres are ndspensabe to the natona nterest. Accordngy, upon the
determnaton by the Secretary of Labor that such ndustry s ndspensabe to the
natona nterest, he w assume |ursdcton over the abor dspute n the sad
ndustry.
=
Ths power, however, s not wthout any mtaton. In uphodng the
consttutonaty of B.P. 130 nsofar as t amends Artce 264 (g)
>
of the Labor Code,
t stressed n the case of (ree telephone 8or1ers Union vs. )onorable &inister o,
Labor and Employment, et al.,
10
the mtaton set by the egsature on the power of
the Secretary of Labor to assume |ursdcton over a abor dspute, thus:
Batas Pambansa Bg. 130 cannot be any cearer, the coverage beng
mted to "strkes or ockouts adversey ahectng the natona nterest.
11
In ths case at bar, however, the very admsson by the pubc respondent draws
the abor dspute n queston out of the ambt of the Secretary's prerogatve, to wt.
Whe the case at bar appears on ts face not to fa wthn the strct
categorzaton of cases mbued wth "natona nterest", ths omce beeves
that the obtanng crcumstances warrant the exercse of the powers under
Artce 263 (g) of the Labor Code, as amended.
12
The prvate respondent dd not even make any ehort to touch on the
ndspensabty of the match factory to the natona nterest. It must have been
aware that a match factory, though of vaue, can scarcey be consdered as an
ndustry "ndspensabe to the natona nterest" as t cannot be n the same
category as "generaton and dstrbuton of energy, or those undertaken by banks,
hosptas, and export-orented ndustres."
1A
Yet, the pubc respondent assumed
|ursdcton thereover, ratocnatng as foows:
For one, the proonged work dsrupton has adversey ahected not ony the
protagonsts, i.e., the workers and the Company, but aso those drecty
and ndrecty dependent upon the unhampered and contnued operatons
of the Company for ther means of vehood and exstence. In addton, the
entre communty where the pant s stuated has aso been paced n
|eopardy. If the dspute at the Company remans unabated, possbe oss of
empoyment, not to menton consequent soca probems, mght resut
thereby compoundng the unempoyment probem of the country.
Thus we cannot be unmndfu of the possbe dre consequences that mght
ensue f the present dspute s aowed to reman unresoved, partcuary
when aternatve dspute resouton mechansm obtans to dspose of the
dherences between the partes heren.
14
It s thus evdent from the foregong that the Secretary's assumpton of |ursdcton
grounded on the aeged "obtanng crcumstances" and not on a determnaton
that the ndustry nvoved n the abor dspute s one ndspensabe to the "natona
nterest", the standard set by the egsature, consttutes grave abuse of dscreton
amountng to ack of or excess of |ursdcton. To uphod the acton of the pubc
respondent under the premses woud be stretchng too far the power of the
Secretary of Labor as every case of a strke or ockout where there are
nconvenences n the communty, or work dsruptons n an ndustry though not
ndspensabe to the natona nterest, woud then come wthn the Secretary's
power. It woud be practcay aowng the Secretary of Labor to ntervene n any
Labor dspute at hs peasure. Ths s precsey why the aw sets and denes the
standard: even n the exercse of hs power of compusory arbtraton under Artce
263 (g) of the Labor Code, the Secretary must foow the aw. For "when an
overzeaous omca by-passes the aw on the pretext of retanng a audabe
ob|ectve, the ntendment or purpose of the aw w ose ts meanng as the aw
tsef s dsregarded"
15
In ght of the foregong, we hod that the pubc respondent gravey abused hs
dscreton n assumng |ursdcton over the abor dspute sued upon n the case.
WHEREFORE, the petton s hereby GRANTED; and the assaed Order, dated |uy 7,
1995, of the Actng Secretary of Labor SET ASIDE. No pronouncement as to costs.
SO ORDERED.
G.R. No. 120505 Mar36 25, 1>>>
SSOCI,ION OF IN.EPEN.EN, "NIONS IN ,HE PHILIPPINES #I"P$, -OEL
.ENSING, HENE.INO MIRF"EN,ES, CHRIS,OPHER P,EN,ES, N.
N.RES ,E-N, pettoners,
vs.
N,IONL L!OR REL,IONS COMMISSION #NLRC$, CENPRO CHEMICL
CORPOR,ION a%&Bor GO SING CHN )% 6)* 3a'a3)(y a* Ma%a9)%9
.)re3(or, respondents.

P"RISM, J.:
The Petton for revew on Certiorari at bar seeks to renstate the Decson
1
of the
Labor Arbter nsofar as t ordered the renstatement and payment of backwages of
the four pettoners heren. The sad decson was amrmed
2
n toto by the NLRC.
On February 21, 1995, however, upon moton for reconsderaton of the respondent
company, the NLRC came out wth a Resouton
A
modfyng ts decson, by
deetng therefrom the award of backwages, orderng payment of separaton pay n
eu of renstatement, and decarng the oss of empoyment status of pettoner
|oe Densng.
The antecedent facts are as foows:
|oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana, the
pettoners heren, were casua empoyees of respondent CENAPRO Chemcas
Corporaton. In the sad company, the coectve barganng representatve of a
rank and e empoyees was CENAPRO Empoyees Assocaton (CCEA), wth whch
respondent company had a coectve barganng agreement (CBA). Ther CBA
excuded casua empoyees from membershp n the ncumbent unon. The casua
empoyees who have rendered at east one to sx years of servce sought
reguarzaton of ther empoyment. When ther demand was dened, they formed
themseves nto an organzaton and amated wth the Assocaton of Independent
unons n the Phppnes (AIUP). Thereafter, AIUP ed a petton for certcaton
eecton, whch petton was opposed by the respondent company. The CCEA
anchored ts opposton on the contract bar rue.
On May 4 and |uy 3 1990, the unon ed a notce of strke, mnutes of strke vote,
and the needed documentaton, wth the Department of Labor and Empoyment.
The notce of strke cted as grounds therefor the acts of respondent company
consttutng unfar abor practce, more speccay coercon of empoyees and
systematc unon bustng.
On |uy 23, 1992, the unon proceeded to stage a strke, n the course of whch, the
unon perpetrated ega acts. The strkers padocked the gate of the company. The
areas frontng the gate of the company were barrcaded and bocked by unon
strkers. The strkers aso prevented and coerced other non-strkng empoyees
from reportng for work. Because of such ega actvtes, the respondent company
ed a petton for n|uncton wth the NLRC, whch granted a Temporary Restranng
Order (TRO), en|onng the strkers from dong further acts of voence, coercon, or
ntmdaton and from bockng fee ngress and egress to the company premses.
Subsequenty, or on |uy 25, 1990, to be precse, the respondent company ed a
compant for ega strke. The day before, |uy 24, 1990, pettoners ed a
compant for unfar abor practce and ega ockout aganst the respondent
company.
In a consodated Decson, dated September 10, 1993, the Labor Arbter decares
ega the strke staged by the pettoners, and dsmssed the charge of ega
ockout and unfar abor practce. The dspostve porton of the Labor Arbter's
decson was to the foowng ehect:
WHEREFORE, premses consdered, |udgment s hereby rendered
ndng the strke ega and as a consequence thereto, the omcers
who partcpated n the ega strke namey: Oscar Enco, |ame
dea Pedra, Lno Isdro, Are |orda, and |ose Catnubay are decared
to have ost ther empoyment status. CENAPRO s drected
however to renstate the other workers, except Ireneo Sagara,
Artemo Gunto, Ruben Tuod, Marceo M. Matura, Gbert Hoda,
Cesar Bunto, Rey Sarot, Luco Nuneza, |ose Basco, Gervaco
Badespnosa, |r., Cresecente Bunto, Denns Pepto, Forenco
Pepto, Edwn Ramayrat, Dane Canete, and Vvenco Snad|an who
executed qutcams n favor of CENAPRO and cenapro s beng
absoved from the charges of ega ockout and unfar abor
practce.
SO ORDERED.
4
In short, ve (5) unon omcers were decared to have ost ther empoyment status,
fteen (15) unon members were not renstated because they executed qut cams
n favor of the respondent company, and sx (6) workers, Rosato Bantuan, Edward
Regner, |oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres
Te|ana, ordered to be renstated.
On October 8, 1993, the Labor Arbter ssued an Order excudng Rosato Bantuan
and Edward Regner from the st of those to be renstated and to be pad
backwages. The remanng four (4) workers, |oe Densng, Henedno Mrafuentes,
Chrstopher Patentes, and Andres Te|ana, are the pettoners here.
On October 5, 1993, the respondent company appeaed the aforesad decson
nsofar as t ordered the renstatement of some of the strkers.
On October 7, 1993, the pettoners aso appeaed the same decson of the Labor
Arbter.
Pendng resouton of the sad appeas, pettoner AUIP ed wth the Labor Arbter a
Moton for Executon of the Labor Arbter's Decson drectng renstatement of
some of ts members. The moton was granted n the Order dated October 15,
1993.
On December 7, 1993, respondent company presented Manfestaton/Moton
prayng that nstead of renstatement. t be aowed to pay separaton pay
pettoners.
On December 16, 1993, pettoners presented a moton for payro renstatement,
whch moton was opposed by the respondent company, aegng many that the
crcumstances of the case have straned the reatonshp of the partes heren,
renderng ther renstatement unwse and napproprate. But such opposton was
overrued by the Labor Arbter. In hs Order of March 23, 1994, the same Labor
Arbter ssued a second wrt of executon drectng actua, f not payro
renstatement of the strkers.
On Apr 6, 1994, respondent company appeaed the second order for the
renstatement of the strkers, pacng reance on the same grounds rased n
support of ts rst appea.
In ts Decson dated August 15, 1994, the NLRC amrmed n toto the Labor Arbter's
decson, dsmssed both the appea of prvate respondent and that of pettoners,
and reterated the Labor Arbter's Order for the renstatement of the heren
pettoners, |oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres
Te|ana. The sad decson dsposed and drected as foows:
WHEREFORE, premses consdered, these appeas are DISMISSED,
and the decson of the Labor Arbter s AFFIRMED n ts entrety.
Appeant Cenapro Chemca Corporaton s hereby ordered to
mmedatey compy wth the Labor Arbter's Order dated March 23,
1994 and to reease the saares of four (4) appeant-workers
namey |oe Densng, Henedno Mrafuentes, Chrstopher Patentes,
and Andres Te|ana from October 15, 1993 and contnue payng
them up to the tme ths decson has become na and executory,
ess earnng earned esewhere.
SO ORDERED.
5
Respondent company moved for reconsderaton of that porton of the NLRC's
decson orderng the renstatement of the sad strkers.
Actng thereupon, the NLRC moded ts Decson of August 15, 1994, by orderng
the payment of separaton pay n eu of the renstatement of the pettoners,
deetng the award of backwages, and decarng the oss of empoyment status of
|oe Densng. The dspostve porton of the Amendatory Resouton, rued thus:
WHEREFORE, the decson of the Commsson promugated on
August 15, 1994 s hereby MODIFIED. In vew of renstatement to
companants Henedno Mrafuentes, Chrstopher Patentes, and
Andres Te|ana, appeant-movant CENAPRO Chemcas corporaton
s drected to pay them amount equvaent to one (1) month pay
for every year of servce and wthout backwages. As regards |oe
Densng, he s decared to have ost hs empoyment status.
SO ORDERED.
6
Hence, the present petton, theorzng that respondent NLRC acted wth grave
abuse of dscreton amountng to ack or excess of |ursdcton n:
1) Entertanng the 6 Apr 1994 (the rst appea dated 5 October 1993) whch was
based on smar grounds.
2) Reversng ts earer Resouton of the rst appea promugated 15 August 1994
by way of another contradctory and baseess rung promugated on 21 February
1995.
3) Deprvng Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana of
ther rght to renstatement and backwages; and
4) Deprvng |oe Densng of hs rght to renstatement or separaton pay wth
backwages.
It s decsvey cear that athough the grounds nvoked n the two appeas were the
same, the sad appeas were the same, the sad appeas were separate and dstnct
remedes. Fed on October 5, 1993, the rst appea was from the decson of Labor
Arbter Ncaso Annon, dated September 10, 1993, seekng oss of empoyment
status of a the unon members who partcpated n the ega strke. The second
appea, dated Apr 6, 1994, was, n ehect, an opposton to the second wrt of
executon ssued on March 23, 1994. The second wrt pertaned to the order to
ehect mmedate actua or payro renstatement of the four pettoners heren. The
sad appeas were acted upon separatey by the NLRC, whch dd not act wth grave
abuse of dscreton n entertanng such appeas.
When they ed the notce of strke, pettoners cted as ther grounds therefor
unfar abor practce, speccay coercon of empoyees and systematc unon
bustng. But the sad grounds wee ad|udged as baseess by the Labor Arbter. The
court quotes wth approva the foowng ndngs of Labor Arbter Annon, to wt:
. . . In fact, n the undated |ont Amdavt of Oscar Eneco, Edgardo
Regner, Chrstopher Patentes, Edgar Sanchez, Are |orda, |ame
dea Pedra, the workers stated that what they consdered as
harassments and nsuts are those when they were scoded for tte
mstakes and memoranda for tardness. These acts, f reay
commtted cannot be consdered as harassment and nsuts but
were ordnary acts whch empoyers have to do as part of ther
admnstratve supervson over ther empoyees. Moreover, Oscar
Eneco's testmony that some of hs feow unon members ke
vce-presdent |ame dea Pedra, Chrstopher Patentes and
Henodno Mrafuentes, were aso harass when they were made to
work another eght (8) hours after ther tour of duty deserves scant
consderaton not ony because t s uncorroborated but he coud
not even gve the dates when these workers were made to work for
sxteen (16) hours, how many nstances these happened and
whether or not the workers have actuay worked.
7
The court dscerns no bass for aterng the aforesad ndngs whch have been
amrmed by the NLRC.
The court s not persuaded by pettoners' aegaton of unon bustng. The NLRC
correcty rued that the strke staged by pettoners was n the nature of a unon-
recognton-strke. A unon-recognton-strke, as ts ega desgnaton mpes, s
cacuated to compe the empoyer to recognze one's unon, and not the other
contendng group, as the empoyees' barganng representatve to work out a
coectve barganng agreement despte the strkng unon's doubtfu ma|orty
status to mert vountary recognton and ack of forma certcaton as the
excusve representatve n the barganng unt. It s undsputed that at the tme the
petton for certcaton eecton was ed by AUIP, pettoner unon, there was an
exstng CBA between the respondent company and CCEA, the ncumbent
barganng representatve of a rank and e empoyees. The petton shoud have
not been entertaned because of the contract bar rue. When a coectve
barganng agreement has been duy regstered n accordance wth Artce 231 of
the Labor Code, a petton for certcaton eecton or moton for nterventon may
be entertaned ony wthn sxty (60) days pror to the expry date of the sad
agreement.
=
Outsde the sad perod, as n the present case, the petton for
certcaton eecton or moton for nterventon cannot be aowed. Hence, the
concuson that the respondent company dd not commt the aeged unon bustng.
From the gamut of evdence on hand, t can be gathered that the strke staged by
the pettoner unon was ega for reasons, that:
1) The strkers commtted ega acts n the course of the strke. They formed
human barrcades to bock the road, prevented the passage of the respondent
company's truck, padocked the company's gate, and prevented co-workers from
enterng the company premses.
>
2) And voated the Temporary Restranng Order (TRO)
10
en|onng the unon
and/or ts members from obstructng the company premses, and orderng the
remova therefrom of a the barrcades.
A strke s a egtmate weapon n the unversa strugge for exstence.
11
It s
consdered as the most ehectve weapon n protectng the rghts of the empoyees
to mprove the terms and condtons of ther empoyment.
12
But to be vad, a
strke must be pursued wthn ega bounds. The rght to strke as a means for the
attanment of soca |ustce s never meant to oppress or destroy the empoyer. The
aw provdes mts for ts exercse. Among such mts are the prohbted actvtes
under Artce 264 of the Labor Code, partcuary paragraph (e), whch states that
no person engaged n pcketng sha:
a) commt any act of voence, coercon, or ntmdaton or
b) obstruct the free ngress to or egress from the empoyer's premses for awfu
purposes or
c) obstruct pubc thoroughfares.
Even f the strke s vad because ts ob|ectve or purpose s awfu, the strke may
st be decared nvad where the means empoyed are ega. For nstance, the
strke was consdered ega as the "strkers formed a human cordon aong the sde
of the Sta. Ana wharf and bocked a the ways and approaches to the aunches and
vesses of Pettoners".
1A
It foows therefore that the dsmssa of the omcers of the strkng unon was
|usted and vad. Ther dsmssa as a consequence of the egaty of the strke
staged by them nds support n Artce 264 (a) of the Labor Code, pertnent porton
of whch provdes: " . . Any unon omcer who knowngy partcpates n an ega
strke and any . . unon omcer who knowngy partcpates n the commsson of
ega acts durng a strke may be decared to have ost hs empoyment status. . ."
Unon omcers are duty bound to gude ther members to respect the aw. If nstead
of dong so, the omcers urge the members to voate the aw and defy the duy
consttuted authortes, ther dsmssa from the servce s a |ust penaty or sancton
for ther unawfu acts. The omcers' responsbty s greater than that of the
members.
14
The court nds mert n the ndng by the Labor Arbter and the NLRC that the
respondent company commtted no ega ockout. Lockout means temporary
refusa of the empoyer to furnsh work as a resut of an ndustra or abor
dspute.
15
As observed by the Labor Arbter, t was the appeant-workers who vountary
stopped workng because of ther strke. In fact the appeant workers admtted
that non-strkng workers who wanted to return to work were aowed to do so.
Ther beng wthout work coud not therefore be attrbuted to the empoyer's
refusa to gve them work but rather, to the vountary wthdrawa of ther servces
n order to compe the company to recognze ther unon.
16
The next aspect of the case to consder s the fate of the four pettoners heren.
Decsve on the matter s the pertnent provson of Artce 264 (a) of the Labor
Code that: ". . any worker . . who knowngy partcpates n the commsson of
ega acts durng a strke may be decared to have ost hs empoyment status. . ."
It can be geaned unerrngy from the aforected provson of aw n pont, however,
that an ordnary strkng empoyee can not be termnated for mere partcpaton n
an ega strke. There must be proof that he commtted ega acts durng the
strke
17
and the strker who partcpated n the commsson of ega act must be
dented. But proof beyond reasonabe doubt s not requred. Substanta evdence
avaabe under the attendant crcumstances, whch may |ustfy the mposton of
the penaty of dsmssa, may sumce.
In the andmark case of Ang !ibay vs. C/R,
1=
the court rued "Not ony must there
be some evdence to support a ndng or concuson, but the evdence must be
"substanta". Substanta evdence s more than a mere scnta. It means such
reevant evdence that a reasonabe mnd mght accept as sumcent to support a
concuson."
Respondent company contends that sumcent testmona, documentary and rea
evdence, ncudng the photographs supposedy taken by a certan Mr. Ponce, were
presented at the arbtraton eve. It s argued that the sad pctures best show the
partcpaton of the strkers n the commsson of ega acts n the course of the
strke. In connecton therewth, t s worthy to pont out the soe bass of the NLRC
for decarng the oss of empoyment status of pettoner |oe Densng, to wt:
ATTY. PINTOR:
O: Now, Mr. Ponce, on page 1 of your amdavt,
paragraph 4 thereof, you aeged that: "Whe n the
gate, I saw severa strkers of Cenapro bocked ts
gate and prevented the truck from proceedng to
ts destnaton." Who were these severa workers
you referred to, n ths amdavt of yours?
WITNESS:
A. The strkers.
HON. LABOR ARBITER:
O. Are you referrng to the companants n ths
case who are now present?
WITNESS:
A. Yes sr, I am referrng to AIU members.
HON, LABOR ARBITER:
Make t of record that the wtness s referrng to the
ve persons nsde the court namey: Rosato
Bentuan, Are |orda, Ranufo Cabrestante, |ose
Catnubay and "oel #ensing.
1>
(emphass supped)
A thngs studedy consdered, the court s not convnced that the quantum of
proof on record hurded the substantaty of evdence test
20
to support a decson,
a basc requrement n admnstratve ad|udcaton. If the sad pctures exhbted
before the Labor Arbter portrayed the heren pettoners performng prohbted
acts durng the strke, why were these pctures not exhbted for dentcaton of
pettoners? Pettoners coud have been dented n such pctures, f they were
reected theren, n the same manner that the awyer who examned Mr. Ponce,
asked wtness Armamento to dentfy the Sherh Mr. Leahmon Too, thus:
ATTY. PINTOR:
O I refer your attenton Mr. Armamento to Exhbt
"16". There s a person here wearng a short seeve
barong tagaog. Can you pease te the Honorabe
omce f you w be abe to dentfy ths person?
WITNESS:
A Yes, ths s the Sherh Mr. Leahmon Too.
21
The dentcaton of the aeged pctures of the strkers, f propery made, coud
have been categorzed as substanta evdence, whch a reasonabe mnd may
accept as adequate to support a concuson that |oe Densng partcpated n
bockng the gate of respondent company.
Very, the uncorroborated testmony of Mr. Ponce does not sumce to support a
decaraton of oss of empoyment status of |oe Densng. Ths coud be the reason
why the Labor Arbter and the NLRC, n ts decson dated August 15, 1994, uphed
the renstatement of |oe Densng.
The contenton of pettoners that the factua ndngs by the Labor Arbter, as tra
omcer n the case, deserve much weght s tenabe. The NLRC s bound by the
factua ndngs of the Labor Arbter as the atter was n a better poston to
observe the demeanor and department of the wtnesses. "Absent any substanta
proof that the tra court's decson was based on specuaton, the same must be
accorded fu consderaton and shoud not be dsturbed on appea.
22
Premses studedy consdered, we are of the neuctabe concuson, and hod, that
the NLRC gravey abused ts dscreton n decarng the oss of empoyment status
of |oe Densng.
As regards the other pettoners, Henedno Mrafuentes, Chrstopher Patentes, and
Andres Te|ana, ther renstatement s warranted. In ts resouton, the NLRC
ad|udged pettoners as "not entrey fautess" n ght of the foowng reveaton of
Mr. Ponce, to wt:
ATTY. PINTOR:
O. Mr. Ponce, I w refer you to a pcture prevousy
marked as our Annex "H". Showng to you the sad
pcture. In sad pcture, there are persons who are
yng on the road. Can you pease dentfy who are
these persons?
WITNESS:
A. They are the strkers.
ATTY. PINTOR:
O. Are you referrng to the AIU strkers the
companants n ths case?
WITNESS:
A. Yes. Sr.
2A
For the severest admnstratve penaty of dsmssa to attach, the errng strkers
must be duy dented. Smpy referrng to them as "strkers", "AIU strkers"
"companants n ths case" s not enough to |ustfy ther dsmssa.
On the ssue of renstatement and payment of saares, the court aso nd for
pettoners. Teng on the monetary award s Artce 223 of the Labor Code, the
pertnent of whch reads:
. . . In any event, the decson of the abor arbter renstatng a
dsmssed empoyee sha be mmedatey executory, even pendng
appea. The empoyee sha ether be admtted back to work under
the same terms and condtons prevang pror to hs dsmssa or
separaton or, at the opton of the empoyer, merey renstated n
the payro. The postng of bond sha not stay the executon of the
renstatement provded theren. . . .
The NLRC Resouton of February 21, 1995 does not state any pausbe ground or
bass for deetng the award for backwages. The mere fact that the pettoners were
"not entrey fautess" s of no moment. Such ndng beow does not adversey
ahect ther enttement to backwages. As opned by the NLRC n ts Decson of
August 15, 1994, amrmng n ts entrety the concuson arrved at by the Labor
Arbter "the ony opton eft to the appeant-company s whether to physcay
renstate appeant workers or to renstate them on the payro."
The unmertorous appea nterposed by the respondent company, et aone the
faure to execute wth dspatch the award of renstatement deayed the payro
renstatement of pettoners. But ther ong watng s not competey n van, for
the court hods that ther (pettoners') saares and backwages must be computed
from October 15, 1993 unt fu payment of ther separaton pay, wthout any
deducton. Ths s n consonance wth the rung n the case of7ustamante vs.
NLRC,
24
where payment of fu backwages wthout deductons was ordered. The
four pettoners heren are entted to renstatement absent any |ust ground ther
dsmssa. Consderng, however, that more than eght (8) years have passed snce
sub|ect strke was staged, an award of separaton pay equvaent to one (1) month
pay for every year of servce, n eu of renstatement, s deemed more practca
and approprate to a the partes concerned.
WHEREFORE, the petton s GRANTED; the Resouton of NLRC, dated February 21,
1995, s SET ASIDE, and the Decson of the Labor Arbter of October 8, 1993
REINSTATED, wth the modcaton that the pettoners, |oe Densng, Henedno
Mrafuentes, Chrstopher Patentes, and Andres Te|ana, be pad fu backwages
computed from October 15, 1993 unt fu payment of ther separaton pay. The
payment of separaton pay n eu of renstatement, s hereby authorzed. No
pronouncement as to costs.
SO ORDERED.
G.R. No. 12=6A2 u9u*( 5, 1>>>
MSF ,IRE N. R"!!ER, INC., pettoner,
vs.
CO"R, OF PPELS a%& PHIL,RE. ,IRE <OR@ERS? "NION, respondents.
MEN.O2, J.:
Pettoner seeks a revew of the decson
1
of the Court of Appeas, dated March 20,
1997, whch set asde the order of the Regona Tra Court of Makat, dated |uy 2,
1996, n Cv Case No. 95-770, grantng pettoner's appcaton for a wrt of
premnary n|uncton.
The facts are as foows:
A abor dspute arose between Phtread Tre and Rubber Corporaton (Phtread)
and prvate respondent, Phtread Tre Workers' Unon (Unon), as a resut of whch
the Unon ed on May 27, 1994 a notce of strke n the Natona Concaton and
Medaton Board - Natona Capta Regon chargng Phtread wth unfar abor
practces for aegedy engagng n unon-bustng for voaton of the provsons of
the coectve barganng agreement. Ths was foowed by pcketng and the
hodng of assembes by the Unon outsde the gate of Phtread's pant at Km. 21,
East Servce Road, South Superhghway, Muntnupa, Metro Mana. Phtread, on
the other hand, ed a notce of ock-out on May 30, 1994 whch t carred out on
|une 15, 1994.
In an order, dated September 4, 1994,
2
then Secretary of Labor Neves Confesor
assumed |ursdcton over the abor dspute and certed t for compusory
arbtraton. She en|oned the Unon from strkng and Phtread from ockng out
members of the Unon.
On December 9, 1994, durng the pendency of the abor dspute, entered nto a
Memorandum of Agreement wth Sam Tyre Pubc Company Lmted (Sam Tyre), a
subsdary of Sam Cement. Under the Memorandum of Agreement, Phtread's
pant and equpment woud be sod to a new company (pettoner MSF Tre and
Rubber, Inc.), 80% of whch woud be owned by Sam Tyre and 20% by Phtread,
whe the and on whch the pant was ocated woud be sod to another company
(Sucat Land Corporaton), 60% of whch woud be owned by Phtread and 40% by
Sam Tyre.
Ths was done and the Unon was nformed of the purchase of the pant by
pettoner. Pettoner then asked the Unon to desst from pcketng outsde ts pant
and to remove the banners, streamers, and tent whch t had paced outsde the
pant's fence.
As the Unon refused pettoner's request, pettoner ed on May 25, 1995 a
compant for n|uncton wth damages aganst the Unon and the atter's omcers
and drectors before the Regona Tra Court of Makat, Branch 59 where the case
was docketed as Cv Case No. 95-770.
On |une 13, 1995, the Unon moved to dsmss the compant aegng ack of
|ursdcton on the part of the tra court. It nssted that the partes were nvoved n
a abor dspute and that pettoner, beng a mere "ater ego" of Phtread, was not
an "nnocent bystander."
After pettoner made ts oher of evdence as we as the submsson of the partes'
respectve memoranda, the tra court, n an order, dated March 25, 1996, dened
pettoner's appcaton for n|uncton and dsmssed the compant. However, on
pettoner's moton, the tra court, on |uy 2, 1996, reconsdered ts order, and
granted an n|uncton. Its order read:
3
Consderng a that has been stated, the moton for reconsderaton s
granted. The Order dated March 25, 1996 s reconsderaton and set asde.
Panth's compant s renstated and defendant's moton to dsmss s
DENIED.
As regards panth's appcaton for the ssuance of a wrt of premnary
n|uncton, the Court nds that the panth has estabshed a cear and
sustanng rght to the n|unctve reef, hence, the same s GRANTED. Upon
postng by the panth and approva by the Court of a bond n the amount
of One Mon (P1,000,000.00) Pesos whch sha answer for any damage
that the defendants may suher by reason of the n|uncton n the event
that the Court may nay ad|udge that the panth s not entted thereto,
et a wrt of premnary n|uncton ssue orderng the defendants and any
other persons actng wth them and/or on ther behaf to desst
mmedatey from conductng ther assemby n the area mmedatey
outsde the panth's pant at Km. 21 East Servce Road, South
Superhghway, Muntnupa, Metro Mana, and from pacng and/or
constructng banners, streamers, posters and pacards, and/or
tents/shantes or any other structure, on the fence of, and/or aong the
sdewak outsde, the sad pant premses unt further from ths Court.
SO ORDERED.
4
Wthout ng a moton for reconsderaton, the Unon ed on August 5, 1996 a
petton for certiorari and prohbton before the Court of Appeas.
On March 20, 1997, the appeate court rendered a decson grantng the Unon's
petton and orderng the tra court to dsmss the cv case for ack of |ursdcton.
Hence, ths petton for revew. Pettoner makes the foowng arguments n support
of ts petton:
a. The Court of Appeas erred n not summary dsmssng the Unon's
petton for ts fase certcaton of non-forum shoppng and the Unon's
faure to e a moton for reconsderaton before gong up to the Court of
Appeas on a petton for certiorari.
b. The Court of Appeas gravey erred n dsmssng Cv Case No. 95-770
for ack of |ursdcton and mert on the aeged grounds that MSF dd not
have a cear and unmstakabe rght to entte t to a wrt of premnary
n|uncton.
c. The Court of Appeas' pronouncement that t has not touched upon the
ssue of whether or not prvate respondent s a mere nnocent bystander to
the abor dspute between Phtread and the Unon or upon the ssue of
whether or not prvate respondent s a mere dummy or contnuty of
Phtread s contrary to ts own concusons n the body of the decson,
whch concusons are erroneous.
d. The Court of Appeas gravey abused ts dscreton when t dsaowed
the n|uncton based on Phtread's remanng operatons n the country and
aowed the Unon to exercse ts rght to communcate the facts of ts abor
dspute wthn MSF's premses, gven the percentage of nterest Phtread
has n both MSF and the corporaton whch owns the and bearng sad
pant.
The ssues are (1) whether the Unon's faure to dscose the pendency of NCMB-
NCR-NS-05-167-96 n ts certcaton of non-forum shoppng and ts faure to e a
moton for reconsderaton of the order, dated |uy 2, 1996, of the tra court were
fata to ts petton for revew before the Court of Appeas; and (2) whether
pettoner has shown a cear ega rght to the ssuance of a wrt of n|uncton under
the "nnocent bystander" rue.
(irst. Forum shoppng s the nsttuton of two (2) or more actons or proceedngs
grounded on the same cause on the supposton that one or the other court woud
make a favorabe dsposton.
5
It s an act of mapractce and s prohbted and
condemned as trng wth courts and abusng ther processes.
6
As hed
n E:ecutive Secretary v.;ordon:
7
Forum-shoppng conssts of ng mutpe suts nvovng the same partes
for the same cause of acton, ether smutaneousy or successvey, for the
purpose of obtanng a favorabe |udgment. Thus, t has been hed that
there s forum-shoppng -
(1) whenever as a resut of an adverse decson one forum, a party seeks a
favorabe decson (other than by appea or certiorari) n another, or
(2) f, after he has ed a petton before the Supreme Court, a party es
another before the Court of Appeas snce n such case he deberatey
spts appeas "n the hope that even as one case n whch a partcuar
remedy s sought s dsmssed, another case (oherng a smar remedy)
woud st be open, or
(3) where a party attempts to obtan a premnary n|uncton n another
court after fang to obtan the same from the orgna court.
In determnng whether or not there s forum-shoppng, what s mportant s the
vexaton caused the courts and partes-tgant by a party who asks dherent courts
and/or admnstratve agences to rue on the same or reated causes and/or grant
the same or substantay the same reefs and n the process creatng the
possbty of conctng decsons beng rendered by the dherent fora upon the
same ssues.
8
Pettoner asserts that the Court of Appeas shoud have dsmssed the Unon's
petton for revew on the ground that the certcaton of non-forum shoppng was
fase and per|urous as a resut of the Unon's faure to menton the exstence of
NCMB-NCR-NS-05-167-96, a proceedng nvovng the same partes and pendng
before the Natona Concaton and Medaton Board.
The argument s wthout mert. Pettoner was a party to the proceedngs before
the Natona Concaton and Medaton Board n whch an order, dated September
8, 1994, was ssued by then Secretary of Labor Neves Confesor, en|onng any
strke or ock-out by the partes.
9
It was pettoner whch ntated the acton for
n|uncton before the tra court. Aggreved by the n|unctve order ssued by the
ower court, the Unon was forced to e a petton for revew before the Court of
Appeas. We cannot understand why pettoner shoud compan that no menton of
the pendency of the arbtraton case before the abor department was made n the
certcate of non-forum shoppng attached to the Unon's petton n the Court of
Appeas. The petton of the Unon n the Court of Appeas was provoked by
pettoner's acton n seekng n|uncton from the tra court when t coud have
obtaned the same reef from the Secretary of Labor.
Indeed, by focusng on the Unon's certcaton before the appeate court,
pettoner faed to notce that ts own certcaton before the ower court suhered
from the same omsson for whch t fauts the Unon. Athough the body of
pettoner's compant mentons NCMB-NCR-NS-05-167-96, ts own certcaton s
sent concernng ths matter.
10
It s not n keepng wth the requrements of farness
for pettoner to demand strct appcaton of the prohbton aganst forum-
shoppng, when t, too, s guty of the same omsson.
Second. Pettoner asserts that ts status as an "nnocent bystander" wth respect
to the abor dspute between Phtread and the Unon enttes t to a wrt of
n|uncton from the cv courts and that the appeate court erred n not uphodng
ts corporate personaty as ndependent of Phtread's.
In hilippine -ssociation o, (ree Labor Unions (-(LU) v. Cloribel,
11
ths Court,
through |ustce |.B.L. Reyes, stated the "nnocent bystander" rue as foows:
The rght to pcket as a means of communcatng the facts of a abor
dspute s a phase of the freedom of speech guaranteed by the
consttuton. If peacefuy carred out, t can not be curtaed even n the
absence of empoyer-empoyee reatonshp.
The rght s, however, not an absoute one. Whe peacefu pcketng s
entted to protecton as an exercse of free speech, we beeve the courts
are not wthout power to conne or ocaze the sphere of communcaton
or the demonstraton to the partes to the abor dspute, ncudng those
wth reated nterest, and to nsuate estabshments or persons wth no
ndustra connecton or havng nterest totay foregn to the context of the
dspute. Thus the rght may be reguated at the nstance of thrd partes or
"nnocent bystanders" f t appears that the nevtabe resut of ts s to
create an mpresson that a abor dspute wth whch they have no
connecton or nterest exsts between them and the pcketng unon or
consttute an nvason of ther rghts. In one case decded by ths Court, we
uphed a tra court's n|uncton prohbtng the unon from bockng the
entrance to a feed m ocated wthn the compound of a our m wth
whch the unon had a dspute. Athough sustaned on a dherent ground,
no connecton was found between the two ms owned by two dherent
corporatons other than ther beng stuated n the same premses. It s to
be noted that n the nstances cted, peacefu pcketng has not been totay
banned but merey reguated. And n one Amercan case, a pcket by a
abor unon n front of a moton pcture theater wth whch the unon had a
abor dspute was en|oned by the court from beng extended n front of the
man entrance of the budng housng the theater wheren other stores
operated by thrd persons were ocated.
12
(Emphass added)
Thus, an "nnocent bystander," who seeks to en|on a abor strke, must satsfy the
court that asde from the grounds speced n Rue 58 of the Rues of Court, t s
entrey dherent from, wthout any connecton whatsoever to, ether party to the
dspute and, therefore, ts nterests are totay foregn to the context thereof. For
nstance, n -(LU v.Cloribel, supra, ths Court hed that Wengton and Gaang
were entrey separate enttes, dherent from, and wthout any connecton
whatsoever to, the Metropotan Bank and Trust Company, aganst whom the strke
was drected, other than the ncdenta fact that they are the bank's andord and
co-essee housed n the same budng, respectvey. Smary, n Li3ay3ay
ublications, /nc. v. ermanent Concrete 8or1ers Union,
13
ths Court rued
thatLi3ay3ay was an "nnocent bystander" and thus entted to en|on the unon's
strke because Lwayway's ony connecton wth the empoyer company was the
fact that both were stuated n the same premses.
In the case at bar, pettoner cannot be sad not to have such on to the dspute. As
correcty observed by the appeate court:
Comng now to the case before us, we nd that the "negotaton, contract
of sae, and the post transacton" between Phtread, as vendor, and Sam
Tyre, as vendee, reveas a ega reaton between them whch, n the
nterest of pettoner, we cannot gnore. To be sure, the transacton
between Phtread and Sam Tyre, was not a smpe sae whereby Phtread
ceased to have any propretary rghts over ts sod assets. On the contrary,
Phtread remans as 20% owner of prvate respondent and 60% owner of
Sucat Land Corporaton whch was kewse ncorporated n accordance
wth the terms of the Memorandum of Agreement wth Sam Tyre, and
whch now owns the and were sub|ect pant s ocated. Ths, together wth
the fact that prvate respondent uses the same pant or factory; smar or
substantay the same workng condtons; same machnery, toos, and
equpment; and manufacture the same products as Phtread, ead us to
safey concude that prvate respondent's personaty s so cosey nked to
Phtread as to bar ts enttement to an n|unctve wrt. Stated dherenty,
gven ts cose nks wth Phtread as to bar ts enttement to an n|unctve
wrt. Stated dherenty, gven ts cose nks wth Phtread, we nd no cear
and unmstakabe rght on the part of prvate respondent to entte t to the
wrt of premnary n|uncton t prayed for beow.
x x x x x x x x x
We stress that n so rung, we have not touched on the ssue of . . .
whether or not prvate s a mere dummy or contnuaton of Phtread . . . .
14
Athough, as pettoner contends, the corporate cton may be dsregarded where t
s used to defeat pubc convenence, |ustfy wrong, protect fraud, defend crme, or
where the corporaton s used as a mere ater-ego or busness condut,
15
t s not
these standards but those of the "nnocent bystander" rue whch govern whether
or not pettoner s to an n|unctve wrt. Snce pettoner s not an "nnocent
bystander", the tra court's order, dated |uy 2, 1996, s a patent nuty, the tra
court havng no |ursdcton to ssue the wrt of n|uncton. No moton for
reconsderaton need be ed where the order s nu and vod.
16
WHEREFORE, petton s hereby DENIED and the decson of the Court of Appeas s
AFFIRMED.<=3phi<.n>t
SO ORDERED.
G.R. No. 140>>2 Mar36 25, 2004
SMHNG MNGGG< S S"LPICIO LINES, INC.CNFL", RO.OLFO
LIN.,O, RO/"E ,N, -ESSIE LIM, S"SN ,OPCIO, LY.. PSC"L,
!ERNR.O LCN,R, GELCIO .ES/"I,.O, RO.RIGO 0ELINO,
LEONR.O N.R.E, .NILO CH", MN.O E"GENIO, CL0IN LOPE2,
N.RES !SCO, -R., a%& CIRILO LON, 'e()()o%er*,
+*.
S"LPICIO LINES, INC., re*'o%&e%(.
D E C I S I O N
SANDOVAL-GUTIERREZ, ".:
A strke s a powerfu weapon of the workng cass. But ke a senstve exposve, t
must be handed carefuy, est t bows up n the workers own hands.
1
Thus, the
rght to strke has to be pursued wthn the bounds of aw.
For our resouton s the nstant petton for revew on certiorari under Rue 45 of
the 1997 Rues of Cv Procedure, as amended, assang the Decson
2
dated May
28, 1999 and the Resouton
3
dated November 25, 1999 rendered by the Court of
Appeas n CA-G.R. SP No. 51322, entted "Samahang &anggaga3a sa Sulpicio
Lines, /nc. ? N-(LU vs. National Labor Relations Commission and Sulpicio Lines,
/nc."
The factua antecedents as geaned from the records are:
On February 5, 1991, Supco Lnes, Inc. (heren respondent) and the Samahang
Manggagawa sa Supco Lnes Inc. - NAFLU (heren pettoner) executed a
coectve barganng agreement (CBA) wth a term of ve (5) years (from October
17, 1990 to October 16, 1995).
After three (3) years or on December 15, 1993, pettoner unon and respondent
company started ther negotaton on the CBAs economc provsons.
4
But ths
negotaton remaned at staemate.
On March 1, 1994, pettoner ed wth the Natona Concaton and Medaton
Board (NCMB), Natona Capta Regon, a notce of strke due to coectve
barganng deadock, docketed as NCMB-NCR-NS-03-118-94.
For ts part, respondent, on March 21, 1994, ed wth the Omce of the Secretary,
Department of Labor and Empoyment a petton prayng that the Labor Secretary
assume |ursdcton over the controversy.
On March 23, 1994, former Labor Secretary Neves R. Confesor ssued an Order
assumng |ursdcton over the abor dspute pursuant to Artce 263 (g) of the
Labor Code, as amended, thus:
"WHEREFORE PREMISES CONSIDERED, ths Omce assumes |ursdcton over
the abor dspute at Supco Lnes, Inc. pursuant to Artce 263 (g) of the
Labor Code, as amended.
"Accordngy, any strke or ockout whether actua or ntended s hereby
en|oned.
"Further, the partes are drected to cease and desst from commttng any
and a acts that mght exacerbate the stuaton.
"SO ORDERED."
Meanwhe, on May 20, 1994, pettoner ed wth the NCMB a second notce of
strke aegng that respondent company commtted acts
5
consttutng unfar abor
practce amountng to unon bustng, docketed as NCMB NCR-05-261-94.
Provoked by respondents aeged unfar abor practce/s, pettoner unon
mmedatey conducted a strke vote. Thus, on May 20, 1994, about 9:30 ocock n
the mornng, 167 rank-and-e empoyees, omcers and members of pettoner, dd
not report for work and nstead gathered n front of Per 12, North Harbor at Mana.
As a remeda measure, former Labor Secretary Confesor ssued an Order dated
May 20, 1994 drectng the strkng empoyees to return to work; and certfyng the
abor dspute to the Natona Labor Reatons Commsson (NLRC) for compusory
arbtraton. Ths certed abor dspute was docketed as NLRC Case No. CC-0083-
94.
Meanwhe, respondent company ed wth the NLRC a compant for "ega
strke/cearance for termnaton," docketed as NLRC NCR Case No. 00-05-04705-94.
On September 29, 1995, the NLRC ssued a Resouton
6
decarng the strke of
pettoners omcers and members ega, wth notce to respondent of the opton to
termnate ther (pettoners omcers) empoyment. In the same Resouton, the
NLRC dsmssed pettoners compant aganst respondent, thus:
"WHEREFORE, premses consdered, after a carefu and |udcous
consderaton of the facts, arguments and evdence thus adduced, t s the
consdered opnon of the Commsson that the unon (Samahang
Manggagawa sa Supco Lnes, Inc.) had ceary engaged n an ega strke
on May 20, 1994, when ts omcers and members actvey partcpated n a
we concerted refusa, stoppage and cessaton to render work at Supco
Lnes, Inc.. In cear voaton not ony of the procedura requrements of a
vad strke, but worse, n cear and batant contraventon of the
assumpton order of the Secretary of Labor and Empoyment.
Consequenty, the foowng unon omcers named n the compant, to wt:
1) Aan F. Aguhar 9) Rodrgo Aveno
2) Rodofo Andato 10) Leonardo Andrade
3) Roque Tan 11) Dano Chua
4) |esse Lm 12) Amando Eugeno
5) Susan Topaco 13) Cavn Lopez
6) Lydda Pascua 14) Andres Rasco, |r.
7) Bernardo Acantara 15) Cro Aon
8) Geaco Dequtado
are decared to have ost ther empoyment status wth the company, and
the atter may now, f t so desres, termnate ther empoyment wth t. The
unons compant aganst the company s hereby DISMISSED for ack of
mert.
"SO ORDERED."
Pettoner ed a moton for reconsderaton but was dened by the NLRC n a
Resouton
7
dated |anuary 15, 1996.
On March 19, 1996, pettoner ed wth ths Court a petton for certorar assang
the NLRC Resoutons. Pursuant to our rung n St. &artin's (uneral )ome vs.
NLRC,
8
we referred the petton to the Court of Appeas for ts approprate acton
and dsposton.
On May 28, 1999, the Court of Appeas rendered a Decson amrmng the NLRC
Resoutons. The Appeate Court hed (1) that the NLRC has |ursdcton to resove
the ssue of egaty of the strke; (2) that the May 20, 1994 temporary work
stoppage by the omcers and members of pettoner amounted to an ega strke;
(3) that even assumng that respondent commtted unfar abor practce/s, st, the
strke s ega because t faed to compy wth the mandatory procedura
requrements of a vad strke under Artce 263 (c) and (f) of the Labor Code, as
amended; and (4) that the dsmssa of pettoners omcers who knowngy
partcpated n an ega strke s n accordance wth Artce 264 (a) of the Labor
Code, as amended.
On October 20, 1995, pettoner ed a moton for reconsderaton but was dened
by the Court of Appeas n a Resouton dated November 25, 1999.
Hence, ths petton for revew on certiorari. Pettoner aeged that the Court of
Appeas serousy erred (1) n hodng that the one-day work stoppage of
pettoners omcers and members s an ega strke; (2) n sustanng the dsmssa
from the servce of ts omcers; and (3) n rung that the NLRC has |ursdcton over
a petton to decare the strke ega.
The basc ssue for our determnaton s whether the strke staged by
pettoners omcers and members s ega. Artces 263 and 264 of the
Labor Code, as amended, provde:
"ART. 263. STRIKES, PICKETING AND LOCKOUTS.
x x x
(c) In cases of barganng deadocks, the duy certed or recognzed
barganng agent may e a notce of strke x x x wth the Mnstry (now
Department) at east 30 days before the ntended date thereof. In cases of
unfar abor practce, the perod of notce sha be 15 days and n the
absence of a duy certed or recognzed barganng agent, the notce of
strke may be ed by any egtmate abor organzaton n behaf of ts
members. However, n case of dsmssa from empoyment of unon
omcers duy eected n accordance wth the unon consttuton and by-
aws, whch may consttute unon bustng where the exstence of the unon
s threatened, the 15-day coong-oh perod sha not appy and the unon
may take acton mmedatey.
x x x
(f) A decson to decare a strke must be approved by a ma|orty of the
tota unon membershp n the barganng unt concerned, obtaned by
secret baot n meetngs or referenda caed for that purpose. x x x. The
decson sha be vad for the duraton of the dspute based on
substantay the same grounds consdered when the strke or ockout vote
was taken. The Mnstry (now Department) may at ts own ntatve or upon
the request of any ahected party, supervse the conduct of the secret
baotng. In every case, the unon x x x sha furnsh the Mnstry (now
Department) the resuts of the votng at east seven days before the
ntended strke or ockout, sub|ect to the coong-oh perod heren provded.
x x x.
ART. 264. R@)/7/!E# -C!/A/!/ES.
(a) No abor organzaton or empoyer sha decare a strke or ockout
wthout rst havng barganed coectvey n accordance wth Tte VII of
ths Book or wthout rst havng ed the notce requred n the precedng
artce or wthout the necessary strke or ockout vote rst havng been
obtaned and reported to the Mnstry (now Department).
x x x."
Foowng are the Impementng Gudenes of the above provsons ssued by the
Department of Labor and Empoyment:
1. A strke sha be ed wth the Department of Labor and Empoyment at
east 15 days f the ssues rased are unfar abor practce or at east 30
days f the ssue nvoved barganng deadock. However, n case of
dsmssa from empoyment of unon omcers duy eected n accordance
wth the unon consttuton and by-aws, whch may consttute unon
bustng where the exstence of the unon s threatened, the 15-day coong-
oh perod sha not appy and the unon may take acton mmedatey;
2. The strke sha be supported by a ma|orty vote of the members of the
unon obtaned by secret baot n a meetng caed for the purpose; and
3. A strke vote sha be reported to the Department of Labor and
Empoyment at east seven (7) days before the ntended strke.
There s no showng that the pettoner unon observed the 7-day strke ban; and
that the resuts of the strke vote were submtted by pettoners to the Department
of Labor and Empoyment at east seven (7) days before the strke.
We thus hod that for fang to compy wth the mandatory requrements of Artce
263 (c) and (f) of the Labor Code, the strke mounted by pettoner unon on May
20, 1994 s ega.
In ;old City /ntegrated ort Service, /nc. vs. NLRC,
9
we stressed that "the anguage
of the aw eaves no room for doubt that the coong-oh perod and the seven-day
strke ban after the strke-vote report were ntended to be mandatory."
But pettoner nssts that the strke can st be decared ega for t was done n
good fath, beng n response to what ts omcers and members honesty perceved
as unfar abor practce or unon bustng commtted by respondent.
Pettoners accusaton of unon bustng s bereft of any proof. We scanned the
records very carefuy and faed to dscern any evdence to sustan such charge.
In !iu vs. NLRC,
10
we hed:
"x x x. It s the unon, therefore, who had the burden of proof to present
substanta evdence to support ts aegatons (of unfar abor practces
commtted by management).
"x x x.
"x x x, but n the case at bar the facts and the evdence dd not estabsh
even at east a ratona bass why the unon woud wed a strke based on
aeged unfar abor practces t dd not even bother to substantate durng
the concaton proceedngs. It s not enough that the unon beeved that
the empoyer commtted acts of unfar abor practce when the
crcumstances ceary negate even a prma face showng to warrant such a
beef."
We expaned n National (ederation o, Labor vs. NLRC
11
that "wth the enactment
of Repubc Act No. 6715 whch took ehect on March 21, 1989, the rue now s
that such requrements as the ng of a notce of strke, strke vote, and notce
gven to the Department of Labor are mandatory n nature. Thus, even f the unon
acted n good fath n the beef that the company was commttng an unfar abor
practce, f no notce of strke and a strke vote were conducted, the sad strke s
ega."
In a desperate attempt to |ustfy ts poston, pettoner nssts that what transpred
on May 20, 1994 was not a strke but merey a "one-day work absence"
12
or a
"smpe act of absenteesm".
13
We are not convnced. A strke, as dened n Artce 212 (o) of the Labor Code, as
amended, means "any temporary stoppage of work by the concerted acton of
empoyees as a resut of an ndustra or abor dspute." The term "strke" sha
comprse not ony concerted work stoppages, but aso sowdowns, mass eaves,
stdowns, attempts to damage, destroy or sabotage pant equpment and factes,
and smar actvtes.
14
The basc eements of a strke are present n the case at bar. Frst, pettoners
omcers and members numberng 167, n a concerted manner, dd not report for
work on May 20, 1994; second, they gathered n front of respondents omce at Per
12, North Harbor at Mana to partcpate n a strke votng conducted by pettoner;
and thrd, such unon actvty was an aftermath of pettoners second notce of
strke by reason of respondents unfar abor practce/s. Ceary, what transpred
then was a strke because the cessaton of work by pettoners concerted acton
resuted from a abor dspute.
Invokng compasson, pettoner peads that ts omcers who partcpated n the one-
day strke shoud not be dsmssed from the servce, consderng that respondents
busness actvtes were not nterrupted, much ess parayzed. Whe we
sympathze wth ther pght, however, we must take care that n the contest
between abor and capta, the resuts acheved are far and n conformty wth the
aw.
15
Pertnent s Artce 264 (a) of the same Code, thus:
"ART. 264. R@)/7/!E# -C!/A/!/ES.
"x x x. Any unon omcer who knowngy partcpates n an ega strke and
any worker or unon omcer who knowngy partcpates n the commsson
of ega acts durng a strke may be decared to have ost hs empoyment
status: Provded, That mere partcpaton of a worker n a awfu strke sha
not consttute sumcent ground for termnaton of hs empoyment, even f
a repacement had been hred by the empoyer durng such awfu strke.
x x x."
It s worth reteratng that the strke s ega for faure of pettoner to submt the
strke vote to the Department of Labor and Empoyment at east seven (7) days
pror thereto. Aso, pettoner faed to prove that respondent company commtted
any unfar abor practce. Amd ths background, the partcpaton of the unon
omcers n an ega strke forfets ther empoyment status.
In !ele,un1en Semiconductors Employees UnionB((8 vs. Secretary o, Labor and
Employment,
16
we expaned -
"The ehects of such ega strkes, outned n Artce 265 (now Artce 264)
of the Labor Code, make a dstncton between workers and unon omcers
who partcpate theren.
"A unon omcer who knowngy partcpates n an ega strke and any
worker or unon omcer who knowngy partcpates n the commsson of
ega acts durng a strke may be decared to have ost ther empoyment
status. An ordnary strkng worker cannot be termnated for mere
partcpaton n an ega strke. There must be proof that he commtted
ega acts durng a strke. A unon omcer, on the other hand, may be
termnated from work when he knowngy partcpates n an ega strke,
and ke other workers, when he commts an ega act durng a strke."
Moreover, pettoner mantans that the Labor Arbter, not the NLRC, shoud have
taken cognzance of the case at bar. We do not agree.
In /nternational harmaceuticals, /nc. v. Secretary o, Labor and Employment,
17
we
hed:
x x x |T|he Secretary was expcty granted by Artce 263 (g) of the Labor
Code the authorty to assume |ursdcton over a abor dspute causng or
key to cause a strke or ockout n an ndustry ndspensabe to the
natona nterest, and decde the same accordngy. Necessary, ths
authorty to assume |ursdcton over the sad abor dspute must ncude
and extend to a questons and controverses arsng therefrom, ncudng
cases over whch the Labor Arbter has excusve |ursdcton (underscorng
supped).
"In the same manner, when the Secretary of Labor and Empoyment
certes the abor dspute to the NLRC for compusory arbtraton the atter
s concomtanty empowered to resove a questons and controverses
arsng therefrom ncudng cases otherwse beongng orgnay and
excusvey to the Labor Arbter."
WHEREFORE, the petton s DENIED. The Decson and Resouton of the Court of
Appeas dated May 28, 1999 and November 25, 1999 are hereby AFFIRMED.
SO ORDERED.