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PART II- ON STRIKES AND LOCK OUT SUPREME COURT EN BANC LIBERAL LABOR UNION, Petitioner, -versusG.R. No. L-4834 March 28, 1952 PHILIPPINE CAN COMPANY, Respondent. x---------------------------------------------------x DECISION BAUTISTA ANGELO, J.: This is a Petition for Review of a Resolution of the Court of Industrial Relations dated March 14, 1951, declaring illegal the strike staged by the members of petitioning labor union on March 14, 1949, and giving authority to respondent not to hire those responsible for the strike on the ground that petitioner violated the terms of the collective bargaining agreement it concluded with respondent when it failed to submit its grievance, first, to a committee of top officials of both the union and the company and, later, to the Court of Industrial Relations before declaring the strike. It appears that because of a labor dispute that had arisen between petitioner and respondent a case was filed in the Court of Industrial Relations, which was docketed as case No. 229-V, and, by way of compromise, a collective bargaining agreement was entered into between them on February 26, 1949. One of the provisions agreed upon therein concerns the procedure that should be followed in the settlement of a labor dispute which in substance consists as follows: If a worker has a complaint the same shall first be submitted to a grievance committee, which shall be composed of six members, three representing the union, and three the company. If the complaint is not satisfactorily settled, it shall next be taken up by the top officials of both the union and the company. And if still no settlement is reached, the matter shall be submitted to the Court of Industrial Relations, which shall determine it in accordance with law. It likewise appears that on the very day the collective bargaining agreement was concluded, respondent reduced the wages of seven of the laborers of petitioner by P.50. Two days thereafter, petitioner protested this reduction to the assistant manager of respondent, and when the latter intimated that he had nothing to do with it, petitioner reiterated its protest to the general manager who on March 5, 1949, told the protestee to come back because the management would meet to discuss the matter. When the representatives of the union returned days later they were told that the reductions could not be returned because they do not appear in the pay-roll, and that in case the matter would reach the court, the management would deny it. Because of this refusal, and the fact that the matter could not be brought to the grievance committee by reason of the failure of respondent to name its representatives to said committee, after the union had designated the names of those who should compose it in its behalf, the union struck on March 14, 1949. As a consequence, the union filed the petition that initiated these proceedings praying that the strike be declared legal and that respondent be ordered to restore the former rate of wages that the laborers affected were receiving and to refund to them all the reductions that were made in their salaries. After several days of trial, the case was decided by Hon. Jose S. Bautista, concurred in by Judge Modesto Castillo, who held that the strike was legal and justified because of the failure of respondent to designate its representatives in the grievance committee as provided for in the bargaining agreement; but on motion for reconsideration, said holding was reversed in a resolution issued on March 15, 1951, penned by Presiding Judge Arsenio S. Roldan, and concurred in by Judges Juan L. Lanting and Vicente Jimenez Yanzon, wherein it was held that the strike was illegal and that the respondent was justified in not continuing in its service those responsible for the strike. Hence this petition for review. The only issue involved in this appeal refers to the legality of the strike staged by the members of the petitioning union on March 14, 1949. Petitioner contends that the majority opinion of the Court of Industrial Relations erred in declaring that petitioner had violated the collective bargaining agreement of February 26, 1949, when it declared a strike on March 14, 1949, without first submitting its dispute with respondent to the Court of Industrial Relations, because while it is true that in said agreement a grievance committee was provided for to which any dispute should first be submitted, petitioner could not make use of the procedure agreed upon in view of the failure of respondent to designate its representatives in said committees, as it was done by the labor union, and that because of this failure of the respondent which amounted to an outright violation of the agreement, the union became relieved of its duty to follow the grievance procedure and, therefore, its failure to go to the Court of Industrial Relations before declaring the strike did not amount to a violation of the agreement. The pertinent provisions of the collective bargaining agreement of February 26, 1949, read as follows: There is hereby created a grievance committee composed of six (6) members, three as representatives of management and three as representatives of the union, all of whom are workers in the company. The matter of discipline, promotion, and other managerial affairs lies in the hands of management, subject to the grievance procedure. Any worker who feels aggrieved on the action taken by the management shall submit his grievance,

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orally or in writing, to the grievance committee within three days from such action, which committee shall pass upon the grievance within three days upon the submission thereof. Should the grievance be not satisfactorily settled at this stage, it shall be taken up in conference between top management officials and top union officials. Should no agreement be reached at this stage, either party shall submit the matter to the Court of Industrial Relations for disposition in accordance with law. It is understood that the members of the grievance committee shall work in companys time, which shall not exceed one hour a day, which altogether shall not exceed seven hours a week. The determination of the time to meet shall be undertaken by the management. As may be noted, the parties have expressly agreed on a procedure to be followed in the settlement of labor disputes. Under this procedure, the first step to be taken is the creation of a grievance committee composed of six representatives, three from the union and three from the company, to which the grievance must first be submitted. The second step is the submission of the grievance to a conference of top officials of both management and labor, and if the grievance still is not settled, the third step is for either party to submit the grievance to the Court of Industrial Relations for its determination in accordance with law. The parties undoubtedly have adopted this graduated procedure in the settlement of their labor disputes because of their desire to maintain harmonious relations and prevent as much as possible the declaration of a strike which in its last analysis works adversely both to capital and labor. Having in mind this fundamental point of view, the next question to be determined is, is the strike staged by the members of the petitioning labor union on March 14, 1949, legal and justified? In this respect, we find that the majority opinion of the Court of Industrial Relations has interpreted correctly the import and effect of the procedure for settlement of labor disputes agreed upon by the parties. On this point, the majority opinion said: Admitting therefore that the respondent company has not yet nominated its three representatives to said grievance body . . . it cannot be denied, too, that the petitioner union, by its strike on March 14, 1949, has acted beyond its bound in the collective bargaining agreement when it failed to submit the workers grievance to a conference of top management officials and top union officials and on top of all, to the Court of Industrial Relations which has jurisdiction on the subject matter of the dispute. We find this appraisal of the situation correct. As we have already stated, the main purpose of the parties in adopting a procedure in the settlement of their disputes is to prevent a strike. This procedure must be followed in its entirety if it is to achieve its objective. This procedure provides for three steps which should be resorted to before any other step may be taken for the redress of a particular grievance. It is true that the management has failed to do its duty in connection with the formation of a grievance committee, but this failure does not give to labor the right to declare a strike outright, for its duty is to exhaust all available means within its reach before resorting to force. There is no use providing for these steps if they can be ignored. This is a compulsory arbitration which received the sanction of the court. And if labor chooses not to deal with the management, either because of distrust or prejudice, the other way left to achieve a peaceful settlement of its grievance is to resort to the Court of Industrial Relations. This the union failed to do. The authorities are numerous which hold that strikes held in violation of the terms contained in a collective bargaining agreement are illegal, especially when they provide for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their ends have to be achieved (Shop N. Save vs. Retail Food Clerks Union (1940) Cal. Super. Ct. CCT. Tab. Case 91-18675; 2 A. L. R. Ann., 2nd Series, pp. 1278-1282). chanroblespublishingcompany But in the present case there is more than a mere violation of a collective bargaining agreement. Here we find that the majority opinion predicated the illegality of the strike not merely on the infringement of said agreement by the union but on the proven fact that, in carrying out the strike, coercion, force, intimidation, violation with physical injuries, sabotage and the use of unnecessary and obscene language or epithets were committed by the top officials and members of the union in an attempt to prevent the other willing laborers to go to work. We hold that a strike held under these circumstances cannot be justified in a regime of law for that would encourage abuses and terrorism and would subvert the very purpose of the law which provides for arbitration and peaceful settlement of labor disputes. As aptly said in one case: A labor philosophy based upon the theory that might is right, in disregard of law and order, is an unfortunate philosophy of regression whose sole consequences can be disorder, class hatred and intolerance (Greater City Masters Plumbers Association vs. Kahme, [1937] 6 N.Y.S. [2nd] 589). In view of the foregoing, we are of the opinion, and so hold, that the resolution appealed from is in accordance with law, and should, therefore, be affirmed. WHEREFORE, the Petition is DENIED with costs against petitioner.

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18, 1952 an urgent petition in the Court of Industrial Relations praying that the strike thus staged be declared unjustified and illegal and that the Company be authorized to dismiss those responsible for the strike, which petition was docketed as Case No. 707-V. The Union having failed to file its answer as required by the regulation, the trial of the case proceeded and the Company was allowed to present its evidence in support of the petition. When the time of the Union came to present its rebuttal evidence, its counsel asked that it be allowed to set up and prove certain special defenses, which requested was granted. These defenses are: (1) the maulings and acts of violence committed on members of the Union inside the refinery; (2) the threats, intimidation and violence committed on members of the Union by persons supported, encouraged, and abetted by company officials; and (3) the existence of a company union in the refinery. After due trial, and the parties had submitted their memoranda, the Court of Industrial Relations rendered decision declaring the strike unjustified and illegal and giving discretion to the management of the Company to dismiss from the service the leaders responsible therefor whose names are listed in Exhibit "T" appearing on pages 554-558 of the record of Case No. 283-V. Both parties, being dissatisfied with the decision, interposed the present petition for review. Inasmuch as the cases before us concern two petitions for review of a decision of the Court of Industrial Relations, which, by their very nature, merely involve questions of law, the facts of this case as found in the decision are deemed undisputed and, for the purposes of the issues herein raised, resort to said facts is sufficient. We would, therefore, quote hereunder the pertinent portion of the decision wherein said facts are outlined:1wphl.nt It is clear that Mr. Andres B. Callanta and several others presented exhibits "B" and "C", the alleged set of demands, to Mr. Manuel B. Villano, the secretary and treasurer and chief of the Finance and Legal Department of the PHILSUGIN between 3:00 and 4:00 in the afternoon of June 12, 1952 at the office of the PHILSUGIN at 306 Samanillo Building. Mr. Callanta after asking him when the Acting General Manager of the PHILSUGIN could be contacted was told that said Acting General Manager together with the chairman of the Board, (the Board being composed of five members) and two others, were at the time in Bacolod, Negros Occidental, attending a convention of sugar men Mr. Callanta was advised that the Acting General Manager was expected to arrive before June 17 because the usual meetings of the board was every Wednesday and the following Wednesday would be June 18. Mr. Callanta was advised that Exhibits "B" and "C", would be submitted to Mr. Oliveros, the Acting General Manager, the moment he arrived from Bacolod. Mr. Villano noticed upon receipt of exhibits "B" and "C" that the same were dated March 31, 1952. On Monday morning June 15, 1952, Mr. Villano received from Mr. Santiago, the cashier of the PHILSUGIN, another paper signed by one Mr. Lampino and marked as exhibits "S" or exhibit "5" and was submitted to Mr. Santiago about 11:00 or 12:00 o'clock, Saturday morning, June 14, 1952. This exhibit prayed for the stopping of the alleged mauling, requested the payment of gratuities to the workers and the information about petty thefts committed by "extras". It can readily be seen that there was no possibility for the

G.R. Nos. L-7594 and L-7596 September 8, 1954 INSUREFCO PAPER PULP AND PROJECT WORKERS' UNION, petitioner, vs. INSULAR SUGAR REFINING CORPORATION, respondent. INSULAR SUGAR REFINING CORPORATION, petitioner, vs. HONORABLE COURT OF INDUSTRIAL RELATIONS, and INSUREFCO AND PAPER PULP PROJECT WORKERS' UNION, respondents. Cid, Villaluz and Associates for petitioner Insurefco Paper Pulp and Project Workers' Union. Jose P. Bengzon, Guido Advincular and Potenciano Villegas, Jr., for respondent Insular Sugar Refining Corporation. BAUTISTA ANGELO, J.: These two cases concern two petitions for review of the decision rendered by the Court of Industrial Relations on December 8, 1953 declaring the strike staged by the members of the Insurefco Papers Pulp and Project Workers' Union hereinafter referred to as Union, on June 14, 1952 unreasonable and illegal and leaving to the discretion of the management of the Insular Sugar Refining Corporation, hereinafter referred to as Company, the dismissal of those responsible therefor as listed in Exhibit "T" appearing on page 554-558 of the record of Case No. 283V of said court. The Union interposed the present petition upon the plea that the court committed serious errors in declaring the strike illegal and in authorizing the management of the Company to dismiss the alleged leaders of the Union at its discretion, whereas the Company has likewise appealed because the authority did not include other persons who allegedly had had a direct part in the strike or are deemed also leaders of the movement. On June 12, 1952, petitioning Union through its leaders submitted to the Company two sets of economic demands, one for increase in wages, elimination of the rotation system, and enforcement of check-off, and the other containing proposals with respect to profit-sharing, union representation in the management of the Company, and an option to purchase the refinery. In the morning of June 14, 1952, a third demand was submitted by the Union in which it requested for the immediate cessation of the threats, intimidation, and violence being committed by certain thugs, goods, and gangsters inside the refinery and asking at the same time that gratuities be granted to the laborers incident to the purchase of the refinery. When said demands were submitted to the Chief of the Finance and Legal Division of the Company, the union delegation was advised that the Acting General Manager of the Company was then absent from Manila and for that reason no action could be taken on these demands until after his return. On June 14, 1952, at about 11:30 p.m., the members of the Union, without notice or warning, struck causing the stoppage and paralization of the operations of the refinery, said members going even to the extent of picketing the approaches of its compound. Because of this walkout, the Company filed on June

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General Manager nor the board of directors to consider the so-called demands between the time they were presented and the declaration of the strike the strike having been declared about 11:30 p.m. on June 14, 1952. The first official knowledge of the would be strike on that day was when Messrs. Lampino, Robles, Carrera and De Jesus, officers of the union went to the house of one of the key officials of the company, Mr. Dominador Salvador, about 10:30 p.m. urging the latter not to report during his shift that night because there was going to be a strike. Exhibit "S" of petitioner or "5" for respondent which was received as mentioned by the cashier of the company between 11:00 or 12:00 o'clock Saturday on the morning of June 14, 1952, the day that the strike was declared and which respondent considered the same as an ultimatum, mentioned no time or warning of the declaration of strike. The strike was particularly the act of the heads of the barangays whose names appear in exhibit "T" in Case No. 283-V. There was no time to consider the alleged demands because the General Manager, the chairman of the Board, and two others were in Bacolod, and even when the manager was advised by the Superintendent of the corporation at 5:03 a.m. thru a telegram on June 15 of the declaration of the strike, efforts to locate the General Manager in Bacolod proved futile, perhaps it was because it was Sunday, (Exhibit "U"). Mr. Callanta, the virtual head of the union, being the president of the U.I.O. mother union of the respondent union, and the person who advised the emissary of the union to serve an ultimatum, knew very well that when he for the very first time on June 12, 1952, presented demands contained in exhibits "B" and "C" the company officials were not in Manila but elsewhere and would be in Manila on June 17, and that the board would meet on June 18. There was, therefore, not time for the company thru its duly constituted authority to consider the alleged demands whether to grant or not the contents of the three sets of demands presented. Mr. Callanta the man who presented exhibits "B" and "C", a very intelligent young man, know that petitioner is a corporation and its activities are supervised and/or controlled by its board. And while it is true that during the progress of the hearing in court propositions and counter propositions were presented to settle the case amicably in and out of court, and while it is equally true that the corporation eventually turned down every effort of amicable settlement, the same could not be taken as the yard stick to conclude, as respondent claimed, that even if the demands presented were studied and scrutinized by the management within a reasonable time still the same would be rejected, as in fact they were. Certainly, it is different when a strike in declared before the demands are studied and presented to the authority that has the final say on the matter, from a strike called after the demands have been denied upon their consideration. As in this case, the strike has already been declared, and the case presented in court. The corporation has every right to stand by on its prayer that the strike be declared illegal. For these reasons, the court considers the strike unreasonable. The question now to be determined is: Has the Court of Industrial Relations gravely abused its discretion, as claimed, in declaring the strike staged by the members of the Union unreasonable, unjustified, and illegal? It appears that the Union, through its leaders and officials submitted to the management of the Company a set of demands urging immediate action. These demands were handed over to the Secretary-Treasurer and Chief of the Finance and Legal Division of the Company on June 12, 1952. At that time the Acting General Manager, together with the Chairman and two members of the Board of Directors, were absent, having gone to Bacolod City, Negros Occidental, to attend a conference of sugar men. The leaders of the Union were advised of this fact and were informed that they would probably be back on June 17, because the usual meeting of the Board was held every Wednesday and the following Wednesday would be June 18. And in the morning of June 14, 1952, the Union, also through its leaders, submitted another demand regarding certain maulings and acts of violence being committed inside the refinery and requesting that they be stopped. And as no immediate action was taken thereon, but despite the advice given to them that their demands would be submitted to the Acting General Manager immediately upon his arrival from Bacolod City, the leaders of the Union caused its members to declare a strike at about midnight of June 14, 1952 thereby causing the stoppage and paralization of the operations of the refinery. It can readily be seen that the walkout was premature as it was declared without giving to the General Manager, or the Board of Directors of the Company, reasonable time within which to consider and act on the demands submitted by the Union. The nature of the demands was such that no possible action could be taken thereon by the officials to whom they were submitted. They could have only been acted upon by the General Manager, or by the Board of Directors. The former was then in Bacolod, and the latter could not be convened because the chairman and two of its members were also absent. And this fact was well known to the leaders of the Union. In the circumstances, the only conclusion that can be drawn is that, as found by the lower court, the strike staged by the Union was unfortunate, as it is ill-considered, considering the great damage caused to the business of the refinery resulting from the complete paralization of its operations. The Court of Industrial Relations, therefore, acted rightly in declaring said strike unjustified and illegal. One circumstance that should be noted is the fact that a portion of the demands herein involved is but a reaffirmation of the demands that had been submitted by the Union and which were the subject of a previous case between the same parties (Case No. 283-V). This case also gave rise to a similar strike which was resolved by a partial agreement concluded by the parties and wherein, among other things, they included a form of settlement of their labor disputes of the following tenor:1wphl.nt VI. That all labor-management disputes shall be taken up in a Grievance Committee consisting of 6 members, 3 from the Insurefco and Paper Pulp Project Workers' Union and 3 from the management. This committee shall take charge of investigating any dispute arising between labor and management, after which it shall make its recommendation to the management which shall have the final say on the matter under consideration. Any matter submitted to the Grievance Committee shall be decided within four days and the management to take action

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within three days from the receipt of the recommendation of the Grievance Committee except when the matter necessitates the action of the Board, in which case the management should decide the matter within one week from the receipt of the recommendation of the Grievance Committee. (Exhibits "D", "D-1", and "E"). Note that the above form of settlement covers all disputes that might arise between labor and management and was adopted precisely to pave the way for their amicable solution and avert a possible strike on the part of the Union. This agreement received the sanction of the court. But, far from abiding by this form of arbitration, the Union declared the instant strike as already pointed out. This infringement constitutes a further jurisdiction for the decision reached by the court a quo. As this court has aptly said: "Strikes held in violation of the terms contained in a collective bargaining agreement are illegal especially when they provide for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their ends have to be achieved." (Liberal Labor Union vs. Philippine Can Company, 92 Phil., 72.) It is true that the Union submitted a third demand complaining about certain mauling, threats, or intimidation being committed by certain malefactors inside the refinery, and apparently action on this matter would be taken without awaiting the return of the General Manager or the convening to a session of the Board of Directors, but it should be noted that said demand was submitted at noon of June 14, 1952 and at about midnight of the same day of the Union struck. Even granting that such mauling or intimidation really existed, still we believe that the action taken by the Union was unjustified it appearing that it has been so sudden that it did not give time to the management to make an investigation of the complaint. But the truth is, as found by the Court of Industrial Relations, "there is not proof that the company had any hand in any of the treats, intimidations or mauling incidents as pictured before this court.... They ensued out of petty jealousies existing between the two unions in the company jealousies which were aimed solely at one objective, control by one union." These incidents even reached the local courts and at the time the claim was being considered, they were still pending determination. The court found that this claim is without merit. The same thing may be said with regard to the claim that the declaration of the strike as become moot in view of the order of the Court of Industrial Relations issued on March 27, 1953 authorizing the partial resumption of the operation of the refinery readmitting to the service all those who took part in the strike, for the simple reason that said order was issued to enable merely the refinery to carry out its commitment to refine a huge quantity of centrifugal sugar. It appears that the order was issued subject to one express condition, that is, that the question of whether the strikers should be allowed to return permanently to work or not should be made subject to the outcome of that case. It is obvious that that order of March 27, 1953 cannot have the effect of declaring moot the question of the legality of the strike which took place on June 14, 1952. As regards the contention of the Company that the Court of Industrial Relations has failed to include among the leaders whose dismissal was left to the discretion of the management other persons who, as contended, likewise had a direct part in the declaration of the strike, we don't believe necessary to pass upon it appearing that it involves a question of fact which cannot be taken up in a petition for review. It is a well-settled rule in this jurisdiction that "as long as there is some evidence to support a decision of the Court of Industrial Relations, this court should not interfere, nor modify or reverse it, just because it is not based on overwhelming or preponderant evidence. Its only province is to resolve or pass upon questions of law. [Philippine Newspaper Guild vs. Evening News, Inc. G. R. No. L-2604, April 29, 1950, 47 Off. Gaz., 86 Phil. 303 Bardwill Bros. vs. Philippine Labor Union and Court of Industrial Relations (1940), 70 Phil., 672; Antamok Goldfields Mining vs. Court of Industrial Relations and National Labor Union, Inc. (1940) 70 Phil., 340.] The petitions are dismissed, without pronouncement as to costs. __________________________ G.R. No. 166879 August 14, 2009 A. SORIANO AVIATION, Petitioner, vs. EMPLOYEES ASSOCIATION OF A. SORIANO AVIATION, JULIUS S. VARGAS IN HIS CAPACITY AS UNION PRESIDENT, REYNALDO ESPERO, JOSEFINO ESPINO, GALMIER BALISBIS, GERARDO BUNGABONG, LAURENTE BAYLON, JEFFREY NERI, ARTURO INES, REYNALDO BERRY, RODOLFO RAMOS, OSWALD ESPION, ALBERT AGUILA, RAYMOND BARCO, REYNANTE AMIMITA, SONNY BAWASANTA, MAR NIMUAN AND RAMIR LICUANAN, Respondents. DECISION CARPIO MORALES, J.: On May 22, 1997, A. Soriano Aviation (petitioner or the company) which is engaged in providing transportation of guests to and from Amanpulo and El Nido resorts in Palawan, and respondent Employees Association of A. Soriano Aviation (the Union), the duly-certified exclusive bargaining agent of the rank and file employees of petitioner, entered into a Collective Bargaining Agreement (CBA) effective January 1, 1997 up to December 31, 1999. The CBA included a "NoStrike, No-Lock-out" clause. On May 1 & 12, and June 12, 1997, which were legal holidays and peak season for the company, eight mechanics-members of respondent Union, its herein corespondents Albert Aguila (Aguila), Reynante Amimita (Amimita), Galmier Balisbis (Balisbis), Raymond Barco (Barco), Gerardo Bungabong (Bungabong), Josefino Espino (Espino), Jeffrey Neri (Neri) and Rodolfo Ramos, Jr. (Ramos), refused to render overtime work. Petitioner treated the refusal to work as a concerted action which is a violation of the "No-Strike, No-Lockout" clause in the CBA. It thus meted the workers a 30day suspension. It also filed on July 31, 1997 a complaint for illegal strike against them, docketed as NLRC Case No. 07-05409-97, which was later dismissed at its instance in order to give way to settlement, without prejudice to its re-filing should settlement be unavailing.

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The attempted settlement between the parties having been futile, the Union filed a Notice of Strike with the National Conciliation and Mediation Board (NCMB) on October 3, 1997, attributing to petitioner the following acts: (1) union busting, (2) illegal dismissal of union officer, (3) illegal suspension of eight mechanics, (4) violation of memorandum of agreement, (5) coercion of employees and interrogation of newly-hired mechanics with regard to union affiliation, (6) discrimination against the aircraft mechanics, (7) harassment through systematic fault-finding, (8) contractual labor, and (9) constructive dismissal of the Union President, Julius Vargas (Vargas). As despite conciliation no amicable settlement of the dispute was arrived at, the Union went on strike on October 22, 1997. Meanwhile, pursuant to its reservation in NLRC Case No. 07-05409-97, petitioner filed a Motion to Re-Open the Case which was granted by Labor Arbiter Manuel P. Asuncion by Order of October 21, 1997. By Decision1 dated September 28, 1998 rendered in petitioners complaint in NLRC Case No. 07-05409-97, the Labor Arbiter declared that the newly implemented work-shift schedule was a valid exercise of management prerogative and the refusal of herein individual respondents to work on three consecutive holidays was a form of protest by the Union, hence, deemed a concerted action. Noting that the Union failed to comply with the formal requirements prescribed by the Labor Code in the holding of strike, the strike was declared illegal. The Union appealed to the NLRC which dismissed it in a per curiam Decision2 dated September 14, 1999, and the subsequent motion for reconsideration was denied by Resolution dated November 11, 1999. In the interim or on June 16, 1998, eight months into the "second strike," petitioner filed a complaint against respondents before the Labor Arbiter, praying for the declaration as illegal of the strike on account of their alleged pervasive and widespread use of force and violence and for the loss of their employment, citing the following acts committed by them: publicly shouting of foul and vulgar words to company officers and non-striking employees; threatening of officers and non-striking employees with bodily harm and dousing them with water while passing by the strike area; destruction of or inflicting of damage to company property, as well as private property of company officers; and putting up of placards and streamers containing vulgar and insulting epithets including imputing crime on the company. By Decision3 of June 15, 2000, Labor Arbiter Ramon Valentin C. Reyes declared the "second strike" illegal. Taking judicial notice of the September 28, 1998 Decision of Labor Arbiter Asuncion, he noted that as the Union went on the "first strike" on a non-strikeable issue the questioned change of work schedule, it violated the "No-Strike, No-Lockout" clause in the CBA and, in any event, the Union failed to comply with the requirements for a valid strike. The Labor Arbiter went on to hold that the Union deliberately resorted to the use of violent and unlawful acts in the course of the "second strike," hence, the individual respondents were deemed to have lost their employment. On appeal, the National Labor Relations Commission (NLRC) affirmed in toto the Labor Arbiters decision, by Resolution4 dated October 31, 2001. It held that even if the strike were legal at the onset, the commission of violent and unlawful acts by individual respondents in the course thereof rendered it illegal. Its motion for reconsideration having been denied by Resolution 5 dated December 14, 2001, the Union appealed to the Court of Appeals. By the assailed Decision of April 16, 2004,6 the appellate court reversed and set aside the NLRC ruling, holding that the acts of violence committed by the Union members in the course of the strike were not, as compared to the acts complained of in Shell Oil Workers Union v. Shell Company of the Philippines,7 First City Interlink Transportation Co., Inc., v. Roldan-Confesor 8 and Maria Cristina Fertilizer Plant Employees Association v. Tandaya, 9 (this case was applied by the Labor Arbiter in his Decision of September 28, 2008) where the acts of violence resulted in loss of employment, concluded that the acts in the present case were not as serious or pervasive as in these immediately-cited cases to call for loss of employment of the striking employees. Specifically, the appellate court noted that at the time petitioner filed its complaint in June 1998, almost eight months had already elapsed from the commencement of the strike and, in the interim, the alleged acts of violence were committed only during nine non-consecutive days, viz: one day in October, two days in November, four days in December, all in 1997, and two days in January 1998. To the appellate court, these incidents did not warrant the conversion of an otherwise legal strike into an illegal one, and neither would it result in the loss of employment of the strikers. For, so the appellate court held, the incidents consisted merely of name-calling and using of banners imputing negligence and criminal acts to the company and its officers, which do not indicate a degree of violence that could be categorized as grave or serious to warrant the loss of employment of the individual strikers found to be responsible. By Resolution of January 25, 2005, the appellate court denied petitioners motion for reconsideration, hence, the present petition. Petitioner insists that, contrary to the appellate courts finding, the questioned acts of the strikers were of a serious character, widespread and pervasive; and that the Unions imputation of crime and negligence on its part, and the prolonged strike resulted in its loss of goodwill and business, particularly the termination of its lease and air-service contract with Amanpulo, the loss of its after-sales repair service agreement with Bell Helicopters, the loss of its accreditation as the Beechcraft service facility, and the decision of El Nido to put up its own aviation company. Apart from the acts of violence committed by the strikers, petitioner bases its plea that the strike should be declared illegal on the violation of the "No-StrikeNo-Lockout" clause in the CBA, the strike having arisen from non-strikeable issues. Petitioner proffers that what actually prompted the holding of the strike was the implementation of the new shift schedule, a valid exercise of management prerogative. In issue then is whether the strike staged by respondents is illegal due to the alleged commission of illegal acts and violation of the "No Strike-No Lockout"

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clause of the CBA and, if in the affirmative, whether individual respondents are deemed to have lost their employment status on account thereof. The Court rules in the affirmative. The Court notes that, as found by the Labor Arbiter in NLRC Case No. 07-0540997, the first strike or the mechanics refusal to work on 3 consecutive holidays was prompted by their disagreement with the management-imposed new work schedule. Having been grounded on a non-strikeable issue and without complying with the procedural requirements, then the same is a violation of the "No StrikeNo Lockout Policy" in the existing CBA. Respecting the second strike, where the Union complied with procedural requirements, the same was not a violation of the "No Strike- No Lockout" provisions, as a "No Strike-No Lockout" provision in the Collective Bargaining Agreement (CBA) is a valid stipulation but may be invoked only by employer when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law. It would be inapplicable to prevent a strike which is grounded on unfair labor practice.10 In the present case, the Union believed in good faith that petitioner committed unfair labor practice when it went on strike on account of the 30-day suspension meted to the striking mechanics, dismissal of a union officer and perceived union-busting, among others. As held in Malayang Samahan ng mga Manggaggawa sa M. Greenfield v. Ramos:11 On the submission that the strike was illegal for being grounded on a nonstrikeable issue, that is, the intra-union conflict between the federation and the local union, it bears reiterating that when respondent company dismissed the union officers, the issue was transformed into a termination dispute and brought respondent company into the picture. Petitioners believed in good faith that in dismissing them upon request by the federation, respondent company was guilty of unfair labor practice in that it violated the petitioners right to selforganization. The strike was staged to protest respondent companys act of dismissing the union officers. Even if the allegations of unfair labor practice are subsequently found out to be untrue, the presumption of legality of the strike prevails. (Emphasis supplied) Be that as it may, the Court holds that the second strike became invalid due to the commission of illegal action in its course. It is hornbook principle that the exercise of the right of private sector employees to strike is not absolute. Thus Section 3 of Article XIII of the Constitution provides: SECTION 3. x x x It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. (Emphasis and underscoring supplied) Indeed, even if the purpose of a strike is valid, the strike may still be held illegal where the means employed are illegal. Thus, the employment of violence, intimidation, restraint or coercion in carrying out concerted activities which are injurious to the right to property renders a strike illegal. And so is picketing or the obstruction to the free use of property or the comfortable enjoyment of life or property, when accompanied by intimidation, threats, violence, and coercion as to constitute nuisance.12 Apropos is the following ruling in Sukhothai Cuisine v. Court of Appeals: 13 Well-settled is the rule that even if the strike were to be declared valid because its objective or purpose is lawful, the strike may still be declared invalid where the means employed are illegal. Among such limits are the prohibited activities under Article 264 of the Labor Code, particularly paragraph (e), which states that no person engaged in picketing shall: a) commit any act of violence, coercion, or intimidation or b) obstruct the free ingress to or egress from the employer's premises for lawful purposes, or c) obstruct public thoroughfares. The following acts have been held to be prohibited activities: where the strikers shouted slanderous and scurrilous words against the owners of the vessels; where the strikers used unnecessary and obscene language or epithets to prevent other laborers to go to work, and circulated libelous statements against the employer which show actual malice; where the protestors used abusive and threatening language towards the patrons of a place of business or against coemployees, going beyond the mere attempt to persuade customers to withdraw their patronage; where the strikers formed a human cordon and blocked all the ways and approaches to the launches and vessels of the vicinity of the workplace and perpetrated acts of violence and coercion to prevent work from being performed; and where the strikers shook their fists and threatened non-striking employees with bodily harm if they persisted to proceed to the workplace. Permissible activities of the picketing workers do not include obstruction of access of customers. (emphasis supplied) The appellate court found in the present case, as in fact it is not disputed, that the acts complained of were the following: 14 1. On 29 October 1997, while Robertus M. Cohen, personnel manager of the Company, was eating at the canteen, petitioner Rodolfo Ramos shouted "insults and other abusive, vulgar and foul-mouthed word" with the use of a megaphone, such as, "sige, ubusin mo yung pagkain," "kapal ng mukha mo;" that when he left the canteen to go back to his office he was splashed with water from behind so that his whole back was drenched; that when he confronted that strikers at the picket line accompanied by three (3) security guards, to find out who was responsible, he was told by petitioner Oswald Espion who was then holding a thick piece of wood approximately two (2) feet long to leave. 2. On the same day, 29 October 1997, petitioners Julius Vargas, Jeffrey Neri, and Rodolfo Ramos, together with Jose Brin, shouted to Capt. Ben Hur Gomez, the chief operating officer of the Company, in this wise, "Matanda ka na, balatuba ka pa rin. Mangungurakot ka sa kompanya!"

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3. In the morning of 11 November 1997, petitioner Ramos was reported to have shouted to Mr. Maximo Cruz, the Mechanical and Engineering Manager of the Company, "Max, mag-resign ka na, ang baho ng bunganga mo!" 4. In the afternoon of the same day, 11 November 1997, petitioner Jeffrey Neri was said to have shouted these words "Max, mag-resign ka na, ang baho ng bunganga mo!" to Mr. Maximo Cruz; 5. On 12 November 1997. petitioners Julius Vargas, Jeffrey Neri, Oswald Espion, Raymond Barco, together with Jose Brin, were reported to have shouted to Capt. Gomez and Mr. Maximo Cruz, "Matanda ka na, balatuba ka pa rin! Max, ang baho ng bunganga mo, kasing baho ng ugali mo!" 6. On the same day, 12 November 1997, petitioner Oswald Espion was said to have shouted to the non-striking employees and officers of the Company, "putang-ina ninyo!" 7. Also, on 12 November 1997, petitioner Oswald Espion was reported to have thrown gravel and sand to the car owned by Celso Villamor Gomez, lead man of the Company, as the said car was traveling along company premises near the picket line; (apart from the marks of mud, gravel and sand found on the entire body of the car, no heavy damages, however, appears to have been sustained by the car)." 8. On 08 December 1997, petitioners Julius Vargas, Rey Espero, Rey Barry, Galmier Balisbis, Rodolfo Ramos, Sonny Bawasanta and Arturo Ines, together with Jose Brin, shouted, "Max, ang sama mo talaga, lumabas ka dito at pipitpitin ko ang mukha mo!" "Cohen, inutil ka talaga. Nagpahaba ka pa ng balbas para kang tsonggo!" Cohen, lumabas ka dito at hahalikan kita." 9. On 10 December 1997, petitioners Vargas and Espion were reported to have shouted to Mr. Maximino Cruz, "Hoy, Max Cruz, wala kang alam dyan, huwag kang poporma-porma dyan!" and then flashed the "dirty finger" at him; 10. On 15 December 1997, petitioner Neri was said to have shouted to nonstriking employees at the canteen, "Hoy, mga iskerol, kain lang ng kain, mga putangina ninyo!" 11. Also on 15 December 1997, petitioners Vargas, Neri, Espion, Mar Nimuan, Ramir Licuanan, Albert Aguila and Sonny Bawasanta, together with Jose Brin, splashed water over Edmund C. Manibog, Jr., security guard of the Company; 12. On 20 December 1997, the strikers admittedly lit and threw firecrackers purportedly outside the Company premises, as part of a noise barrage, while the Company was having its Christmas party inside the Company premises; 13. On 14 January 1998, when Chris A. Oballas, collector of the Company, boarded a public utility jeepney where Jose Brin, a striker, was also passenger, Jose Brin was said to have shouted to the other passengers and driver of the jeepney, "Mga pasahero, driver, itong tao ito sherol, ang kapal ng mukha. Iyong pinagtrabahuhan namin kinakain nito, ibenebent[a] kami nito, hudas ito! Mga pasahero, tingnan niyo, hindi makatingin-tingin sa akin, hindi makapagsalita. Hoy, tingin ka sa akin, napahiya ka sa mga ginagawa mo ano?" and, that when Chris Oballas was alighting from the jeepney, he was kicked on his leg by Jose Brin; and, 14. On 15 January 1998, while Julio Tomas, Avionics Technician of the Company, and his girlfriend, Elizabeth Gali, also an employee of the Company, were waiting for their ride, several union members shouted to Elizabeth Gali, Beth iwanan mo na yang taong yan, walang kwentang tao yan!" "Beth, paano na yung pinagsamahan natin?" irked, Julio Tomas upon boarding the passenger jeepney with his girlfriend threw a P2.00 coin in the direction of the picketers, the coin hit the windshield of a privately-owned jeepney belonging to petitioner Espion which was parked alongside the premises of the strike area; The act of Tomas, provoked the petitioners Espion and Amimita to follow Tomas, who when left alone inside the tricycle after his girlfriend took a separate tricycle to her home, was approached by petitioners Espion and Amimita; petitioner Espion then threw a P2.00 coin at him, and while pointing a baseball bat to his face shouted, "Huwag mong uulitin yung ginawa mo kundi tatamaan ka sa akin!" (Emphasis and italics in the original) The Court notes that the placards and banners put up by the striking workers in the company premises read: "ANDRES SORIANO AVIATION, INC. CAUGHT IN THE ACT, ATTEMPTING TO BRIBE GOVERNMENT OFFICIALS BEWARE, NOW A NAME YOU CAN TRASH," "ASAI DETERIORATING SAFETY RECORD KILLS 2 DEAD + VARIOUS (IN PLANE CRASH) FLIGHT MISHAPS BEWARE," "FLY AT YOUR OWN RISK," "ANDRES SORIANO AVIATION, INC. DETERIORATING SAFETY RECORD KILLS INNOCENT PEOPLE IN PLANE CRASH, THE CAUSE: UNTRAINED MECHANICS DOING AIRCRAFT RELEASE, THE RESULT: SLIPSHOD MAINTENANCE AND SLOPPY PLANE INSPECTION," "WANNA FLY BLIND?," "BENHUR GOMEZ DRAGS COMPANY TO DEBT AND SHAMEFUL EXPERIENCE (MAHIYA KA NAMAN, OY!)," "A. SORIANO AVIATION, INC., DEAD PEOPLE IN PLANE CRASH," "ELY BONIFACIO (MASAKIT ANG TOTOO) MAGNANAKAW NG PIYESA, PALITAN NA RIN! TINGNAN NYO KUNG NAGNANAKAW," "MEKANIKO DE EROPLANO Y HUELGA UN VIAJE DE PELIGRO, AIRCRAFT MANAGEMENT BULOK; "A. SORIANO AVIATION KILLS PEOPLE FOR LAX OVERSIGHT OF SAFETY PROC." "(ELY BONIFACIOPATALSIKIN NA RIN," "MANDARAMBONG" "MUKHANG KWARTA," "SAAN MO DINALA ANG DORNIER SPECIAL TOOLS? IKAW HA!)," "ELY BONIFACIO KAWATAN BANTAY SALAKAY," "AMANPULO AND EL NIDO GUESTS, BEWARE OF ASAI FLIGHTS, AIRCRAFT MECHANICS STILL ON STRIKE," "GOING TO BORACAY AND EL NIDO IS GOOD BUT FLYING WITH A. SORIANO AVIATION? THINK TWICE!" "ACHTUNG: A SORIANO AVIATION DEAD PEOPLE IN PLANE CRASH INSURANCE ENTITLEMENTS DENIED DUE TO CAR VIOLATIONS," "UNDRESS SORIANO AVIATION, INC. UNRELIABLE FIXED BASED OPERATOR KILLS PEOPLE FOR LAX OVERSIGHT OF SAFETY PROCEDURES." It cannot be gainsaid that by the above-enumerated undisputed acts, the Union committed illegal acts during the strike. The Union members repeated namecalling, harassment and threats of bodily harm directed against company officers and non-striking employees and, more significantly, the putting up of placards, banners and streamers with vulgar statements imputing criminal negligence to the company, which put to doubt reliability of its operations, come within the purview of illegal acts under Art. 264 and jurisprudence.

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That the alleged acts of violence were committed in nine non-consecutive days during the almost eight months that the strike was on-going does not render the violence less pervasive or widespread to be excusable. Nowhere in Art. 264 does it require that violence must be continuous or that it should be for the entire duration of the strike.1avvphil The appellate court took against petitioner its filing of its complaint to have the strike declared illegal almost eight months from the time it commenced. Art. 264 does not, however, state for purposes of having a strike declared as illegal that the employer should immediately report the same. It only lists what acts are prohibited. It is thus absurd to expect an employer to file a complaint at the first instance that an act of violence is alleged to be committed, especially, as in the present case, when an earlier complaint to have the refusal of the individual respondents to work overtime declared as an illegal strike was still pending an issue resolved in its favor only on September 25, 1998. The records show that the Union went on strike on October 22, 1997, and the first reported harassment incident occurred on October 29, 1997, while the last occurred in January, 1998. Those instances may have been sporadic, but as found by the Labor Arbiter and the NLRC, the display of placards, streamers and banners even up to the time the appeal was being resolved by the NLRC works against the Unions favor. The acts complained of including the display of placards and banners imputing criminal negligence on the part of the company and its officers, apparently with the end in view of intimidating the companys clientele, are, given the nature of its business, that serious as to make the "second strike" illegal. Specifically with respect to the putting up of those banners and placards, coupled with the namecalling and harassment, the same indicates that it was resorted to to coerce the resolution of the dispute the very evil which Art. 264 seeks to prevent. While the strike is the most preeminent economic weapon of workers to force management to agree to an equitable sharing of the joint product of labor and capital, it exerts some disquieting effects not only on the relationship between labor and management, but also on the general peace and progress of society and economic well-being of the State.15 If such weapon has to be used at all, it must be used sparingly and within the bounds of law in the interest of industrial peace and public welfare. As to the issue of loss of employment of those who participated in the illegal strike, Sukhothai16 instructs: In the determination of the liabilities of the individual respondents, the applicable provision is Article 264(a) of the Labor Code: Art. 264. Prohibited Activities (a) x x x xxxx x x x x Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during an illegal 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. xxxx In Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio Lines, Inc., this Court explained that the effects of such illegal strikes, outlined in Article 264, make a distinction between workers and union officers who participate therein: an ordinary striking worker cannot be terminated for mere participation in an illegal. There must be proof that he or she committed illegal acts during a strike. A union officer, on the other hand, may be terminated from work when he knowingly participates in an illegal strike, and like other workers, when he commits an illegal act during an illegal strike. In all cases, the striker must be identified. But proof beyond reasonable doubt is not required. Substantial evidence available under the attendant circumstances, which may justify the imposition of the penalty of dismissal, may suffice. 17 (Emphasis supplied) The liability for prohibited acts has thus to be determined on an individual basis.1awph!1.e+ A perusal of the Labor Arbiters Decision, which was affirmed in toto by the NLRC, shows that on account of the staging of the illegal strike, individual respondents were all deemed to have lost their employment, without distinction as to their respective participation. Of the participants in the illegal strike, whether they knowingly participated in the illegal strike in the case of union officers or knowingly participated in the commission of violent acts during the illegal strike in the case of union members, the records do not indicate. While respondent Julius Vargas was identified to be a union officer, there is no indication if he knowingly participated in the illegal strike. The Court not being a trier of facts, the remand of the case to the NLRC is in order only for the purpose of determining the status in the Union of individual respondents and their respective liability, if any. WHEREFORE, the petition is GRANTED. The Court of Appeals Decision and Resolution dated April 16, 2004 and January 25, 2005, respectively, are REVERSED and SET ASIDE. The Resolutions dated October 31, 2001 and December 14, 2001 of the National Labor Relations Commission affirming the Decision of the Labor Arbiter in NLRC-NCR Case No. 00-06-04890-98 are AFFIRMED with the MODIFICATION in light of the foregoing discussions. The case is accordingly REMANDED to the National Labor Relations Commission for the purpose of determining the Union status and respective liabilities, if any, of the individual respondents. SO ORDERED. __________________ G.R. No. L-24711 April 30, 1968 BENGUET CONSOLIDATED, INC., plaintiff-appellant, vs. BCI EMPLOYEES and WORKERS UNION-PAFLU, PHILIPPINE ASSOCIATION OF FREE LABOR UNIONS, CIPRIANO CID and JUANITO GARCIA, defendants-appellees. Ross, Selph, Del Rosario, Bito and Misa for plaintiff-appellant. Cipriano Cid and Associates for defendants-appellees. BENGZON, J.P., J.:

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The contending parties in this case Benguet Consolidated, Inc., ("BENGUET") on the one hand, and on the other, BCI Employees & Workers Union ("UNION") and the Philippine Association of Free Labor Unions ("PAFLU") do not dispute the following factual settings established by the lower court. On June 23, 1959, the Benguet-Balatoc Workers Union ("BBWU"), for and in behalf of all BENGUET employees in its mines and milling establishment located at Balatoc, Antamok and Acupan, Municipality of Itogon, Mt. Province, entered into a Collective Bargaining Contract, Exh. "Z" ("CONTRACT") with BENGUET. Pursuant to its very terms, said CONTRACT became effective for a period of four and a half (4-) years, or from June 23, 1959 to December 23, 1963. It likewise embodied a No-Strike, No-Lockout clause. 1 About three years later, or on April 6, 1962, a certification election was conducted by the Department of Labor among all the rank and file employees of BENGUET in the same collective bargaining units. UNION obtained more than 50% of the total number of votes, defeating BBWU, and accordingly, the Court of Industrial Relations, on August 18, 1962, certified UNION as the sole and exclusive collective bargaining agent of all BENGUET employees as regards rates of pay, wages, hours of work and such other terms and conditions of employment allowed them by law or contract. Subsequently, separate meetings were conducted on November 22, 23 and 24, 1962 at Antamok, Balatoc and Acupan Mines respectively by UNION. The result thereof was the approval by UNION members of a resolution 2directing its president to file a notice of strike against BENGUET for: 1. [Refusal] to grant any amount as monthly living allowance for the workers; 2. Violation of Agreements reached in conciliation meetings among which is the taking down of investigation [sic] and statements of employees without the presence of union representative; 3. Refusal to dismiss erring executive after affidavits had been presented, thereby company showing [sic] bias and partiality to company personnel; 4. Discrimination against union members in the enforcement of disciplinary actions. The Notice of Strike 3 was filed on December 28, 1962. Three months later, in the evening of March 2, 1963, UNION members who were BENGUET employees in the mining camps at Acupan, Antamok and Balatoc, went on strike. Regarding the conduct of the strike, the trial court reports: 4 ... Picket lines were formed at strategic points within the premises of the plaintiff. The picketers, by means of threats and intimidation, and in some instances by the use of force and violence, prevented passage thru the picket lines by personnel of the plaintiff who were reporting for work. Human blocks were formed on points of entrance to working areas so that even vehicles could not pass thru, while the officers of the plaintiff were not allowed for sometime to leave the "staff" area. The strikers forming picket lines bore placards with the letters BBWU-PAFLU written thereon. As a general rule, the picketers were unruly, aggressive and uttered threatening remarks to staff members and non-strikers who desire to pass thru the picket lines. On some occasions, the picketers resorted to violence by pushing back the car wherein staff officers were riding who would like to enter the mine working area. The picketers lifted one side of the vehicle and were in the act of overturning it when they were prevented from doing so by the timely intervention of PC soldiers, who threw tear gas bombs to make the crowd disperse. Many of the picketers were apprehended by the PC soldiers and criminal charges for grave coercion were filed against them before the Court of First Instance of Baguio. Two of the strike leaders and twenty-two picketers, however, were found guilty of light coercion while nineteen other accused were acquitted. There was a complete stoppage of work during the strike in all the mines. After two weeks elapsed, repair and maintenance of the water pump was allowed by the strikers and some of the staff members were permitted to enter the mines, who inspected the premises in the company of PC soldiers to ascertain the extent of the damage to the equipment and losses of company property. xxx xxx xxx On May 2, 1963, the parties agreed to end the raging dispute. Accordingly, BENGUET and UNION executed the AGREEMENT, Exh. 1. PAFLU placed its conformity thereto and said agreement was attested to by the Director of the Bureau of Labor Relations. About a year later or on January 29, 1964, a collective bargaining contract was finally executed between UNION-PAFLU and BENGUET. 5 Meanwhile, as a result, allegedly, of the strike staged by UNION and its members, BENGUET had to incur expenses for the rehabilitation of mine openings, repair of mechanical equipment, cost of pumping water out of the mines, value of explosives, tools and supplies lost and/or destroyed, and other miscellaneous expenses, all amounting to P1,911,363.83. So, BENGUET sued UNION, PAFLU and their respective Presidents to recover said amount in the Court of First Instance of Manila, on the sole premise that said defendants breached their undertaking in the existing CONTRACT not to strike during the effectivity thereof . In answer to BENGUET's complaint, defendants unions and their respective presidents put up the following defenses: (1) they were not bound by the CONTRACT which BBWU, the defeated union, had executed with BENGUET; (2) the strike was due, inter alia, to unfair labor practices of BENGUET; and (3) the strike was lawful and in the exercise of the legitimate rights of UNION-PAFLU under Republic Act 875. Issues having been joined, trial commenced. On February 23, 1965, the trial court rendered judgment dismissing the complaint on the ground that the CONTRACT, particularly the No-Strike clause, did not bind defendants. The latters' counterclaim was likewise denied. Failing to get a reconsideration of said decision, BENGUET interposed the present appeal. The several errors assigned by BENGUET basically ask three questions: (1) Did the Collective Bargaining Contract executed between BENGUET and BBWU on June 23, 1959 and effective until December 23, 1963 automatically bind UNION-PAFLU upon its certification, on August 18, 1962, as sole bargaining representative of all BENGUET employees?

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(2) Are defendants labor unions and their respective presidents liable for the illegal acts committed during the course of the strike and picketing by some union members? (3) Are defendants liable to pay the damages claimed by BENGUET? In support of an affirmative answer to the first question, BENGUET first invokes the so-called "Doctrine of Substitution" referred to in General Maritime Stevedores' Union v. South Sea Shipping Lines, L-14689, July 26, 1960. There it was remarked: xxx xxx xxx We also hold that where the bargaining contract is to run for more than two years, the principle of substitution may well be adopted and enforced by the CIR to the effect that after two years of the life of a bargaining agreement, a certification election may be allowed by the CIR; that if a bargaining agent other than the union or organization that executed the contract, is elected, said new agent would have to respect said contract, but that it may bargain with the management for the shortening of the life of the contract if it considers it too long, or refuse to renew the contract pursuant to an automatic renewal clause. (Emphasis supplied) xxx xxx xxx The submission utterly fails to persuade Us. The above-quoted pronouncement was obiter dictum. The only issue in the General Maritime Stevedores' Union case was whether a collective bargaining agreement which had practically run for 5 years constituted a bar to certification proceedings. We held it did not and accordingly directed the court a quo to order certification elections. With that, nothing more was necessary for the disposition of the case. Moreover, the pronouncement adverted to was rather premature. The possible certification of a union different from that which signed the bargaining contract was a mere contingency then since the elections were still to be held. Clearly, the Court was not called upon to rule on possible effects of such proceedings on the bargaining agreement. 6 But worse, BENGUET's reliance upon the Principle of Substitution is totally misplaced. This principle, formulated by the NLRB 7 as its initial compromise solution to the problem facing it when there occurs a shift in employees' union allegiance after the execution of a bargaining contract with their employer, merely states that even during the effectivity of a collective bargaining agreement executed between employer and employees thru their agent, the employees can change said agent but the contract continues to bind them up to its expiration date. They may bargain however for the shortening of said expiration date. 8 In formulating the "substitutionary" doctrine, the only consideration involved was the employees' interest in the existing bargaining agreement. The agent's interest never entered the picture. In fact, the justification 9 for said doctrine was: ... that the majority of the employees, as an entity under the statute, is the true party in interest to the contract, holding rights through the agency of the union representative. Thus, any exclusive interest claimed by the agent is defeasible at the will of the principal.... (Emphasis supplied) Stated otherwise, the "substitutionary" doctrine only provides that the employees cannot revoke the validly executed collective bargaining contract with their employer by the simple expedient of changing their bargaining agent. And it is in the light of this that the phrase "said new agent would have to respect said contract" must be understood. It only means that the employees, thru their new bargaining agent, cannot renege on their collective bargaining contract, except of course to negotiate with management for the shortening thereof. The "substitutionary" doctrine, therefore, cannot be invoked to support the contention that a newly certified collective bargaining agent automatically assumes all the personal undertakings like the no-strike stipulation here in the collective bargaining agreement made by the deposed union. When BBWU bound itself and its officers not to strike, it could not have validly bound also all the other rival unions existing in the bargaining units in question. BBWU was the agent of the employees, not of the other unions which possess distinct personalities. To consider UNION contractually bound to the no-strike stipulation would therefore violate the legal maxim that res inter alios nec prodest nec nocet. 10 Of course, UNION, as the newly certified bargaining agent, could always voluntarily assume all the personal undertakings made by the displaced agent. But as the lower court found, there was no showing at all that, prior to the strike, 11 UNION formally adopted the existing CONTRACT as its own and assumed all the liability ties imposed by the same upon BBWU. BENGUET also alleges that UNION is now in estoppel to claim that it is not contractually bound by the CONTRACT for having filed on September 28, 1962, in Civil Case No. 1150 of the Court of First Instance of Baguio, entitled "Bobok Lumber Jack Ass'n. vs. Benguet Consolidated, Inc. and BCI Employees Workers Union-PAFLU" 12 a motion praying for the dissolution of the ex parte writ of preliminary injunction issued therein, wherein the following appears: In that case, the CIR transfered the contactual rights of the BBWU to the defendant union. One of such rights transferred was the right to the modified union-shop checked off union dues arrangement now under injunction. The collective bargaining contract mentioned in the plaintiff's complaint did not expire by the mere fact that the defendant union was certified as bargaining agent in place of the BBWU. The Court of Industrial Relations in the case above mentioned made it clear that the collective bargaining contract would be respected unless and until the parties act otherwise. In effect, the defendant union by act of subrogation took the place of the BBWU as the UNION referred to in the contract. (Emphasis supplied) There is no estoppel. UNION did not assert the above statement against BENGUET to force it to rely upon the same to effect the union check-off in its favor. UNION and BENGUET were together as co-defendants in said Civil Case No. 1150. Rather, the statement was directed against Bobok Lumber Jack Ass'n., plaintiff therein, to weaken its cause of action. Moreover, BENGUET did not rely upon said statement. What prompted Bobok Lumber Jack Ass'n. to file the

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complaint for declaratory relief was the fact that "... the defendants [UNION and BENGUET] are planning to agree to the continuation of a modified union shop in the three camps mentioned above without giving the employees concerned the opportunity to express their wishes on the matter ..." BENGUET even went further in its answer filed on October 18, 1962, by asserting that "... defendants have already agreed to the continuation of the modified union shop provision in the collective bargaining agreement...." 13 Neither can we accept BENGUET's contention that the inclusion of said aforequoted motion in the record on appeal filed in said Civil Case No. 1150, now on appeal before Us docketed as case No. L-24729, refutes UNION's allegation that it has subsequently abandoned its stand against Bobok Lumber Jack Ass'n., in said case. The mere appearance of such motion in the record on appeal is but a compliance with the procedural requirement of Rule 41, Sec. 6, of the Rules of Court, that all matters necessary for a proper understanding of the issues involved be included in the record on appeal. This therefore cannot be taken as a rebuttal of the UNION's explanation. There is nothing then, in law as well as in fact, to support plaintiff BENGUET's contention that defendants are contractually bound by the CONTRACT. And the stand taken by the trial court all the more becomes unassailable in the light of Art. 1704 of the Civil Code providing that: In the collective bargaining, the labor union or members of the board or committee signing the contract shall be liable for non-fulfillment thereof. (Emphasis supplied) There is no question, defendants were not signatories nor participants in the CONTRACT. Lastly, BENGUET contends, citing Clause II in connection with Clause XVIII of the CONTRACT, that since all the employees, as principals, continue being bound by the no-strike stipulation until the CONTRACT's expiration, UNION, as their agent, must necessarily be bound also pursuant to the Law on Agency. This is untenable. The way We understand it, everything binding on a duly authorized agent, acting as such, is binding on the principal; notvice-versa, unless there is a mutual agency, or unless the agent expressly binds himself to the party with whom he contracts. As the Civil Code decrees it: 14 The agent who acts as such is not personally liable to the party with whom he contracts, unless he expressly binds himself or exceeds the limits of his authority without giving such party sufficient notice of his powers. (Emphasis supplied)1wph1.t Here, it was the previous agent who expressly bound itself to the other party, BENGUET. UNION, the new agent, did not assume this undertaking of BBWU. In view of all the foregoing, We see no further necessity of delving further into the other less important points raised by BENGUET in connection with the first question. On the second question, it suffices to consider, in answer thereto, that the rule of vicarious liability has, since the passage of Republic Act 875, been expressly legislated out. 15 The standing rule now is that for a labor union and/or its officials and members to be liable, there must be clear proof of actual participation in, or authorization or ratification of the illegal acts. 16 While the lower court found that some strikers and picketers resorted to intimidation and actual violence, it also found that defendants presented uncontradicted evidence that before and during the strike, the strike leaders had time and again warned the strikers not to resort to violence but to conduct peaceful picketing only. 17 Assuming that the strikers did not heed these admonitions coming from their leaders, the failure of the union officials to go against the erring union members pursuant to the UNION and PAFLU constitutions and by-laws exposes, at the most, only a flaw or weakness in the defense which, however, cannot be the basis for plaintiff BENGUET to recover. Lastly, paragraph VI of the Answer 18 sufficiently traverses the material allegations in paragraph VI of the Complaint, 19 thus precluding a fatal admission on defendants' part. The purpose behind the rule requiring specific denial is obtained: defendants have set forth the matters relied upon in support of their denial. Paragraph VI of the Answer may not be a model pleading, but it suffices for purposes of the rule. Pleadings should, after all, be liberally construed. 20 Since defendants were not contractually bound by the no-strike clause in the CONTRACT, for the simple reason that they were not parties thereto, they could not be liable for breach of contract to plaintiff. The lower court therefore correctly absolved them from liability. WHEREFORE, the judgment of the lower court appealed from is hereby affirmed. No costs. So ordered. _____________________ Malayang Samahan ng mga Manggagawa sa M. Greenfield, G.R. No. 113907 , February 28, 2000 At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court to annul the decision of the National Labor Relations Commission in an unfair labor practice case instituted by a local union against its employer company and the officers of its national federation. chanroblespublishingcompany The petitioner, Malayang Samahan ng mga Manggagawa sa M. Greenfield, Inc., (B) (MSMG), hereinafter referred to as the local union, is an affiliate of the private respondent, United Lumber and General Workers of the Philippines (ULGWP), referred to as the federation. The collective bargaining agreement MSMG and M Greenfield, Inc. names the parties as follows: This agreement made and entered into by and between: M. GREENFIELD, INC. (B) a corporation duly organized in accordance with the laws of the Republic of the Philippines with office address at Km. 14, Merville Road, Paraaque, Metro Manila, represented in this act by its General Manager, Mr. Carlos T. Javelosa, hereinafter referred to as the company; -and-

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MALAYANG SAMAHAN NG MGA MANGGAGAWA SA M. GREENFIELD (B) (MSMG)/UNITED LUMBER AND GENERAL WORKERS OF THE PHILIPPINES (ULGWP), a legitimate labor organization with address at Suite 404, Trinity Building, T.M. Kalaw Street, Manila, represented in this act by a Negotiating Committee headed by its National President, Mr. Godofredo Paceno, Sr. referred to in this Agreement as the UNION. The CBA includes, among others, the following pertinent provisions: Article II-Union Security SECTION 1. Coverage and Scope. All employees who are covered by this Agreement and presently members of the UNION shall remain members of the UNION for the duration of this Agreement as a condition precedent to continued employment with the COMPANY. x x x x x x x x x SECTION 4. Dismissal. Any such employee mentioned in Section 2 hereof, who fails to maintain his membership in the UNION for non-payment of UNION dues, for resignation and for violation of Unions Constitution and By-Laws and any new employee as defined in Section 2 of this Article shall upon written notice of such failure to join or to maintain membership in the UNION and upon written recommendation to the COMPANY by the UNION, be dismissed from the employment by the COMPANY; provided, however, that the UNION shall hold the COMPANY free and blameless from any and all liabilities that may arise should the dismissed employee question, in any manner, his dismissal; provided, further that the matter of the employees dismissal under this Article may be submitted as a grievance under Article XIII and, provided, finally, that no such written recommendation shall be made upon the COMPANY nor shall COMPANY be compelled to act upon any such recommendation within the period of sixty (60) days prior to the expiry date of this Agreement conformably to law. Article IX SECTION 4. Program Fund. The Company shall provide the amount of P10, 000.00 a month for a continuing labor education program which shall be remitted to the Federation. [2] On September 12, 1986, a local union election was held under the auspices of the ULGWP wherein the herein petitioner, Beda Magdalena Villanueva, and the other union officers were proclaimed as winners. Minutes of said election were duly filed with the Bureau of Labor Relations on September 29, 1986. chanroblespublishingcompany On March 21, 1987, a Petition for Impeachment was filed with the national federation ULGWP by the defeated candidates in the aforementioned election. On June 16, 1987, the federation conducted an audit of the local union-funds. The investigation. did not yield any unfavorable result and the local union. officers were cleared of the charges of anomaly in the custody, handling and disposition of the union funds. The 14 defeated candidates filed a Petition for Impeachment/Expulsion of the local union officers with the DOLE NCR on November 5, 1987, docketed as NCR-OD-M-11-780-87. However, the same was dismissed on March 2, 1988, by Med-Arbiter Renato Parungo for failure to substantiate the charges and to present evidence in support of the allegations. On April 17, 1988, the local union held a general membership meeting at the Caruncho Complex in Pasig. Several union members failed to attend the meeting, prompting the Executive Board to create a committee tasked to investigate the non-attendance of several union members in the said assembly, pursuant to Sections 4 and 5, Article V of the Constitution and By-Laws of the union, which read: SEKSYON 4. Ang mga kinukusang hindi pagdalo o hindi paglahok sa lahat ng hakbangin ng unyon ng sinumang kasapi o pinuno ay maaaring maging sanhi ng pagtitiwalag o pagpapataw ng multa ng hindi hihigit sa P50.00 sa bawat araw na nagkulang. SEKSYON 5. Ang sinumang dadalo na aalis ng hindi pa natatapos ang pulong ay ituturing na pagliban at maparusahan ito ng alinsunod sa Article V, Seksyong 4 ng Saligang Batas na ito. Sino mang kasapi o opisyales na mahuli ang dating sa takdang oras ng di lalampas sa isang oras ay magmumulta ng P25.00 at babawasin sa sahod sa pamamagitan ng salary deduction at higit sa isang oras ng pagdating ng huli ay ituturing na pagliban. [3] On June 27, 1988, the local union wrote respondent a letter requesting it to deduct the union fines from the wages/salaries of those union members who failed to attend the general membership meeting. A portion of the said letter: x x x x x x x x x In connection with Section 4 Article II of our existing Collective Bargaining Agreement, please deduct the amount of P50.00 from each of the union members named in said annexes on the payroll of July 2-8, 1988 as fine for their failure to attend said general membership meeting. [4] In a Memorandum dated July 3, 1988, the Secretary General of the

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national federation, Godofredo Paceo, Jr. disapproved the resolution of the local union imposing the P50.00 fine. The union officers protested such action by the Federation in a Reply dated July 4, 1988. On July 11, 1988, the federation wrote respondent company a letter advising the latter not to deduct the fifty-peso fine from the salaries of the union members requesting that: any and all future representations by MSMG affecting a number of members be first cleared from the federation before corresponding action by the Company. The following day, respondent company sent a reply to petitioner unions request in a letter, stating that it cannot deduct fines from the employees salary without going against certain laws. The company suggested that the union refer the matter to the proper government office for resolution in order to avoid placing the company in the middle of the issue. The imposition of P50.00 fine became the subject of bitter disagreement between the Federation and the local union culminating in the latters declaration of general autonomy from the former through Resolution No. 10 passed by the local executive board and ratified by the general membership on July 16, 1988. In retaliation, the national federation asked respondent company to stop the remittance of the local unions share in the education funds effective August 1988. This was objected to by the local union which demanded that the education fund be remitted to it in full. The company was thus constrained to file a Complaint for Interpleader with a Petition for Declaratory Relief with the MedArbitration Branch of the Department of Labor and Employment, docketed as Case No. OD-M-8-435-88. This was resolved on October 28, 1988, by Med-Arbiter Anastacio Bactin in an Order, disposing thus: WHEREFORE, premises considered, it is hereby ordered: 1. That the United Lumber and General Workers of the Philippines (ULGWP) through its local union officers shall administer the collective bargaining agreement (CBA). 2. That petitioner company shall remit the P10,000.00 monthly labor education program fund to the ULGWP subject to the condition that it shall use the said amount for its intended purpose. 3. That the Treasurer of the MSMG shall be authorized to collect from the 356 union members the amount of P50.00 as penalty for their failure to attend the general membership assembly on April 17, 1988. However, if the MSMG Officers could present the individual written authorizations of the 356 union members, then the company is obliged to deduct from the salaries of the 356 union members the P50.00 fine. [6] On appeal, Director Pura-Ferrer Calleja issued a Resolution dated February 7, 1989, which modified in part the earlier disposition, to wit: WHEREFORE, premises considered, the appealed portion is hereby modified to the extent that the company should remit the amount of five thousand pesos (P5,000.00) of the P10,000.00 monthly labor education program fund to ULGWP and the other P5,000.00 to MSMG, both unions to use the same for its intended purpose. [7] Meanwhile, on September 2, 1988, several local unions (Top Form, M. Greenfield, Grosby, Triumph International, General Milling, and Vander Hons chapters) filed a Petition for Audit and Examination of the federation and education funds of ULGWP which was granted by Med-Arbiter Rasidali Abdullah on December 25, 1988 in an Order which directed the audit and examination of the books of account of ULGWP. On September 30, 1988, the officials of ULGWP called a Special National Executive Board Meeting at Nasipit, Agusan del Norte where a Resolution was passed placing the MSMG under trusteeship and appointing respondent Cesar Clarete as administrator. On October 27, 1988, the said administrator wrote the respondent company informing the latter of. its designation of a certain Alfredo Kalingking as local union president and disauthorizing the incumbent union officers from representing the employees. This action by the national federation was protested by the petitioners in a letter to respondent company dated November 11, 1988. On November 13, 1988, the petitioner union officers received identical letters from the administrator requiring them to explain within 72 hours why they should not be removed from their office and expelled from union membership. On November 26, 1988, petitioners replied: (a) Questioning the validity of the alleged National Executive Board Resolution placing their union under trusteeship; (b) Justifying the action of their union in declaring a general autonomy from ULGWP due to the latters inability to give proper educational, organizational and legal services to its affiliates and the pendency of the audit of the federation funds; (c) Advising that their union did not commit any act of disloyalty as it has remained an affiliate of ULGWP; (d) Giving ULGWP a period of five (5) days to cease and desist from further committing acts of coercion, intimidation and

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harassment. However, as early as November 21, 1988, the officers were expelled from the ULGWP. The termination letter read: Effective today, November 21, 1988, you are hereby expelled from UNITED LUMBER AND GENERAL WORKERS OF THE PHILIPPINES (ULGWP) for committing acts of disloyalty and/or acts inimical to the interest and violative to the Constitution and by-laws of your federation. You failed and/or refused to offer an explanation inspite of the time granted to you. Since you are no longer a member of good standing, ULGWP is constrained to recommend for your termination from your employment, and provided in Article II Section 4, known as UNION SECURITY, in the Collective Bargaining agreement. On the same day, the federation advised respondent company of the expulsion of the 30 union officers and demanded their separation from employment pursuant to the Union Security Clause in their collective bargaining agreement. This demand was reiterated twice, through letters dated February 21 and March 4, 1989, respectively, to respondent company. Thereafter, the Federation filed a Notice of Strike with the National Conciliation and Mediation Board to compel the company to effect the immediate termination of the expelled union officers. On March 7, 1989, under the pressure of a threatened strike, respondent company terminated the 30 union officers from employment, serving them identical copies of the termination letter reproduced below: We received a demand letter dated 21 November 1988 from the United Lumber and General Workers of the Philippines (ULGWP) demanding for your dismissal from employment pursuant to the provisions of Article II, Section 4 of the existing Collective Bargaining Agreement (CBA). In the said demand letter, ULGWP informed us that as of November 21, 1988, you were expelled from the said federation for committing acts of disloyalty and/or inimical to the interest of ULGWP and violative to its Constitution and By-laws particularly Article V, Section 6, 9, and 12, Article XIII, Section 8. chanroblespublishingcompany In subsequent letters dated 21 February and 4 March 1989, the ULGWP reiterated its demand for your dismissal, pointing out that notwithstanding your expulsion from the federation, you have continued in your employment with the company in violation of Sec. 1 and 4 of Article II of our CBA, and of existing provisions of law. In view thereof, we are left with no alternative but to comply with the provisions of the Union Security Clause of our CBA. Accordingly, we hereby serve notice upon you that we are dismissing you from your employment with M. Greenfield, Inc., pursuant to Sections 1 and 4 Article II of the CBA effective immediately. On that same day, the expelled union officers assigned in the first shift were physically or bodily brought out of the company premises by the companys security guards. Likewise, those assigned to the second shift were not allowed to report for work. this provoked some of the members of the local union to demonstrate their protest for the dismissal of the said union officers. Some union members left their work posts and walked out of the company premises. On the other hand, the Federation, having achieved its objective, withdrew the Notice of Strike filed with the NCMB. On March 8, 1989, the petitioners filed a Notice of Strike with the NCMB, DOLE, Manila, docketed as Case No. NCMB-NCR-NS03-21689, alleging the following grounds for the strike: (a) Discrimination (b) Interference in union activities (c) Mass dismissal of union officers and shop stewards (d) Threats, coercion and intimidation (e) Union busting The following day, March 9,1989, a strike vote referendum was conducted and out of 2,103 union members who cast their votes, 2,086 members voted to declare a strike. On March 10, 1989, the thirty (30) dismissed union officers filed an urgent petition, docketed as Case No. NCMB-NCR-NS-03-216-89, with the Office of the Secretary of the Department of Labor and Employment praying for the suspension of the effects of their termination from employment. However, the petition was dismissed by then Secretary Franklin Drilon on April 11, 1989, the pertinent portion of which stated as follows: At this point in time, it is clear that the dispute at M. Greenfield is purely an intra-union matter No mass lay-off is evident as the terminations have been limited to those allegedly leading the secessionist group leaving MSMG-ULGWP to form a union under the KMU. x x x x x x x x x WHEREFORE, finding no sufficient jurisdiction to warrant the exercise of our extraordinary authority under Article 277 (b) of the Labor Code, as amended, the instant Petition is hereby DISMISSED for lack of merit. SO ORDERED. [11] On March 13 and 14, 1989, a total of 78 union shop stewards were placed under preventive suspension by respondent company. This prompted the union members to again stage a walk-out and resulted in the official declaration of strike at around 3:30 in the afternoon of March 14, 1989. The strike was attended with violence, force and intimidation on both sides resulting to physical injuries to several

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employees, both striking and non-striking, and damage to company properties. The employees who participated in the strike and allegedly figured in the violent incident were placed under preventive suspension by respondent company. The company also sent return to-work notices to the home addresses of the striking employees thrice successively, on March 27, April 8 and April 31, 1989, respectively. However, respondent company admitted that only 261 employees were eventually accepted back to work. Those who did not respond to the return-to-work notice were sent termination letters dated May 17, 1989, reproduced below: M. Greenfield Inc., (B) Km. 14, Merville Rd., Paraaque May 17, 1989 x x x x x x x x x On March 14, 1989, without justifiable cause and without due notice, you left your work assignment at the prejudice of the Companys operations. On March 27, April 11, and April 21, 1989, we sent you notices to report to the Company. Inspite of your receipt of said notices, we have not heard from you up to this date. Accordingly, for your failure to report, it is construed that you have effectively abandoned your employment and the Company is, therefore, constrained to dismiss you for said cause Very truly yours, M. GREENFIELDS, INC., (B) By: WENZEL STEPHEN LIGOT Asst HRD Manager [12] On August 7, 1989, the petitioners filed a verified complaint with the Arbitration Branch, National Capital Region, DOLE, Manila, docketed as Case No. NCR -00-09-04199-89, charging private respondents of unfair labor practice which consists of union busting, illegal dismissal, illegal suspension interference in union activities, discrimination, threats, intimidation, coercion, violence, and oppression. After the filing of the complaint, the lease contracts on the respondent companys office and factory at Merville Subdivision, Paraaque expired and were not renewed. Upon demand of the owners of the premises, the company was compelled to vacate its office and factory. Thereafter, the company transferred its administration and account/client servicing department at AFP-RSBS Industrial Park in Taguig, Metro Manila. For failure to find a suitable place in Metro Manila for relocation of its factory and manufacturing operations, the company was constrained to move the said departments to Tacloban, Leyte. Hence, on April 16, 1990, respondent company accordingly notified its employees of a temporary shutdown. in operations. Employees who were interested in relocating to Tacloban were advised to enlist on or before April 23, 1990. The complaint for unfair labor practice was assigned to Labor Arbiter Manuel Asuncion but was thereafter reassigned to Labor Arbiter Cresencio Ramos when respondents moved to inhibit him from acting on the case. On December 15, 1992, finding the termination to be valid in compliance with the union security clause of the collective bargaining agreement, Labor Arbiter Cresencio Ramos dismissed the complaint. Petitioners then appealed to the NLRC. During its pendency, Commissioner Romeo Putong retired from the service, leaving only two commissioners, Commissioner Vicente Veloso III and Hon. Chairman Bartolome Carale in the First Division. When Commissioner Veloso inhibited himself from the case, Commissioner Joaquin Tanodra of the Third Division was temporarily designated to sit in the First Division for the proper disposition of the case. The First Division affirmed the Labor Arbiters disposition. With the denial of their motion for reconsideration on January 28, 1994, petitioners elevated the case to this Court, attributing grave abuse of discretion to public respondent NLRC in: I. UPHOLDING THE DISMISSAL OF THE UNION OFFICERS BY RESPONDENT COMPANY AS VALID; II. HOLDING THAT THE STRIKE STAGED BY THE PETITIONERS AS ILLEGAL; III. HOLDING THAT THE PETITIONER EMPLOYEES WERE DEEMED TO HAVE ABANDONED THEIR WORK AND HENCE, VALIDLY DISMISSED BY RESPONDENT COMPANY; AND IV. NOT FINDING RESPONDENT COMPANY AND RESPONDENT FEDERATION OFFICERS GUILTY OF ACTS OF UNFAIR LABOR PRACTICE. Notwithstanding the several issues raised by the petitioners and respondents in the voluminous pleadings presented before the NLRC and this Court, they revolve around and proceed from the issue of whether or not respondent company was justified in dismissing petitioner employees merely upon the labor federations demand for the enforcement of the union security clause embodied in their collective bargaining agreement. Before delving into the main issue, the procedural flaw pointed out by the petitioners should first be resolved. Petitioners contend that the decision rendered by the First Division of the NLRC is not valid because Commissioner Tanodra, who is from the Third Division, did not have any lawful authority to sit, much less write the ponencia, on a case pending before the First Division. It is

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claimed that a commissioner from one division of the NLRC cannot be assigned or temporarily designated to another division because each division is assigned a particular territorial jurisdiction. Thus, the decision rendered did not have any legal effect at all for being irregularly issued. Petitioners argument is misplaced. Article 213 of the Labor Code in enumerating the powers of the Chairman of the National Labor Relations Commission provides that: The concurrence of two (2) Commissioners of a division shall be necessary for the pronouncement of a judgment or resolution. Whenever the required membership in a division is not complete and the concurrence of two (2) commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from the other divisions as may be necessary. It must be remembered that during the pendency of the case in the First Division of the NLRC, one of the three commissioners, Commissioner Romeo Putong, retired, leaving Chairman Bartolome Carale and Commissioner Vicente Veloso III. Subsequently, Commissioner Veloso inhibited himself from the case because the counsel for the petitioners was his former classmate in law school. The First Division was thus left with only one commissioner. Since the law requires the concurrence of two commissioners to arrive at a judgment or resolution, the Commission was constrained to temporarily designate a commissioner from another division to complete the First Division. There is nothing irregular at all in such a temporary designation for the law empowers the Chairman to make temporary assignments whenever the required concurrence is not met. The law does not say that a commissioner from the first division cannot be temporarily assigned to the second or third division to fill the gap or vice versa. The territorial divisions do not confer exclusive jurisdiction to each division and are merely designed for administrative efficiency. Going into the merits of the case, the court finds that the Complaint for unfair labor practice filed by the petitioners against respondent company which charges union busting, illegal dismissal, illegal suspension, interference in union activities, discrimination, threats, intimidation, coercion, violence, and oppression actually proceeds from one main issue which is the termination of several employees by respondent company upon the demand of the labor federation pursuant to the union security clause embodied in their collective bargaining agreement. Petitioners contend that their dismissal from work was effected in an arbitrary, hasty, capricious and illegal manner because it was undertaken by the. respondent company without any prior administrative investigation; that, had respondent company conducted prior independent investigation it would have found that their expulsion from the union was unlawful similarly for lack of prior administrative investigation; that the federation cannot recommend the dismissal of the union officers because it was not a principal party to the collective bargaining agreement. between the company and the union; that public respondents acted with grave abuse of discretion when they declared petitioners dismissals as valid and the union strike as illegal and in not declaring that respondents were guilty of unfair labor practice. Private respondents, on the other hand, maintain that the thirty dismissed employees who were former officers of the federation have no cause of action against the company, the termination of their employment having been made upon the demand of the federation pursuant to the union security clause of the CBA; the expelled officers of the local union were accorded due process of law prior to their expulsion from their federation; that the strike conducted by the petitioners was illegal for noncompliance with the requirements; that the employees who participated in the illegal strike and in the commission of violence thereof were validly terminated from work; that petitioners were deemed to have abandoned their employment when they did not respond to the three return to work notices sent to them; that petitioner labor union has no legal personality to file and prosecute the case for and on behalf of the individual employees as the right to do so is personal to the latter; and that, the officers of respondent company cannot be liable because as mere corporate officers, they acted within the scope of their authority. Public respondent, through the Labor Arbiter, ruled that the dismissed union officers were validly and legally terminated because the dismissal was effected in compliance with the union security clause of the CBA which is the law between the parties. And this was affirmed by the Commission on appeal. Moreover, the Labor Arbiter declared that notwithstanding the lack of a prior administrative investigation by respondent company, under the union security clause provision in the CBA, the company cannot look into the legality or illegality of the recommendation to dismiss by the union and the obligation to dismiss is ministerial on the part of the company. [13] This ruling of the NLRC is erroneous. Although this Court has ruled that union security clauses embodied in the collective bargaining agreement may be validly enforced and that dismissals pursuant thereto may likewise be valid, this does not erode the fundamental requirement of due process. The reason behind the enforcement of union security clauses which is the sanctity and inviolability of contracts [14] cannot override ones right to due process.

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In the case of Cario vs. National Labor Relations Commission, [15] this Court pronounced that while the company, under a maintenance of membership provision of the collective bargaining agreement, is bound to dismiss any employee expelled by the union for disloyalty upon its written request, this undertaking should not be done hastily and summarily. The company acts in bad faith in dismissing a worker without giving him the benefit of a hearing. The power to dismiss is a normal prerogative of the employer. However, this is not without limitation. The employer is bound to exercise caution in terminating the services of his employees especially so when it is made upon the request of a labor union pursuant to the Collective bargaining Agreement. Dismissals must not be arbitrary and capricious. Due process must be observed in dismissing an employee because it affects not only his position but also his means of livelihood. Employers should respect and protect the rights of their employees, which include the right to labor. In the case under scrutiny, petitioner union officers were expelled by the federation for allegedly committing acts of disloyalty and/or inimical to the interest of ULGWP and in violation of its Constitution and By-laws. Upon demand of the federation, the company terminated the petitioners without conducting a separate and independent investigation. Respondent company did not inquire into the cause of the expulsion and whether or not the federation had sufficient grounds to effect the same. Relying merely upon the federations allegations, respondent company terminated petitioners from employment when a separate inquiry could have revealed if the federation had acted arbitrarily and capriciously in expelling the union officers. Respondent companys allegation that petitioners were accorded due process is belied by the termination letters received by the petitioners which state that the dismissal shall be immediately effectiveAs held in the aforecited case of Cario, the right of an employee to be informed of the charges against him and to reasonable opportunity to present his side in a controversy with either the company or his own union is not wiped away by a union security clause or a union shop clause in a collective bargaining agreement. An employee is entitled to be protected not only from a company which disregards his rights but also from his own union the leadership of which could yield to the temptation of swift and arbitrary expulsion from membership and mere dismissal from his job. While respondent company may validly dismiss the employees expelled by the union for disloyalty under the union security clause of the collective bargaining agreement upon the recommendation by the union, this dismissal should not be done hastily and summarily thereby eroding the employees right to due process, self-organization and security of tenure. The enforcement of union security clauses is authorized by law provided such enforcement is not characterized by arbitrariness, and always with due process. [16] Even on the assumption that the federation had valid grounds to expel the union officers, due process requires that these union officers be accorded a separate hearing by respondent company. In its decision, public respondent declared that if complainants (herein petitioners) have any recourse in law, their right of action is against the federation and not against the company or its officers. relying on the findings of the Labor Secretary that the issue of expulsion of petitioner union intra-union matter. Again, such a contention is untenable. While its is true that the issue of expulsion of the local union officers is originally between the local union and the federation, hence, intra-union in character, the issue was later on converted into a termination dispute when the company dismissed the petitioners from work without the benefit of a separate notice and hearing. As a matter of fact, the records reveal that the termination was effective on the same day that the termination notice was served on the petitioners. In the case of Liberty Cotton Mills Workers Union vs. Liberty Cotton Mills, Inc., [17] the Court held the company liable for payment of backwages for having acted in bad faith in effecting the dismissal of the employees. Bad faith on the part of the respondent company be gleaned from the fact that the petitioner workers were dismissed hastily and summarily. At best, it was guilty of a tortious act, for which it must assume solidary liability, since it apparently chose to summarily dismiss the workers at the unions instance secure in the unions contractual undertaking that the union would hold it free from any liability arising from such dismissal. Thus, notwithstanding the fact that the dismissal was at the instance of the federation and that it undertook to hold the company free from any liability resulting from such a dismissal, the company may still be held liable if it was remiss in its duty to accord the would be dismissed employees their right to be heard on the matter. Anent petitioners contention that the federation was not a principal party to the collective bargaining agreement between the company and the union, suffice it to say that the matter was already ruled upon in the Interpleader case filed by respondent company. Med-Arbiter Anastacio Bactin thus ruled: After a careful examination of the facts and evidences presented by the parties, this Officer hereby renders its decision as

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follows: 1.) It appears on record that in the Collective Bargaining Agreement (CBA) which took effect on July 1, 1986, the contracting parties are M. Greenfield, Inc. (B) and Malayang Samahan ng Mga Manggagawa sa M. Greenfield, Inc. (B) (MSMG)/United Lumber and General Workers of the Philippines (ULGWP). However, MSMG was not yet a registered labor organization at the time of the signing of the CBA. Hence, the union referred to in the CBA is the ULGWP. Likewise on appeal, Director Pura Ferrer-Calleja put the issue to rest as follows: It is undisputed that ULGWP is the certified sole and exclusive collective bargaining agent of all the regular rank-and-file workers of the company, M. Greenfield, Inc. (pages 31-32 of the records).It has been established also that the company and ULGWP signed a 3-year collective bargaining agreement effective July 1, 1986 up to June 30, 1989. Although the issue of whether or not the federation had reasonable grounds to expel the petitioner union officers is properly within the original and exclusive jurisdiction of the Bureau of Labor Relations being an intra-union conflict, this Court deems it justifiable that such issue be nonetheless ruled upon, as the Labor Arbiter did, for to remand the same to the Bureau of Labor Relations would be to intolerably delay the case. The Labor Arbiter found that petitioner union officers were justifiably expelled from the federation for committing acts of disloyalty when it undertook to disaffiliate from the federation by charging ULGWP with failure to provide any legal, educational or organizational support to the local and declared autonomy, wherein they prohibit the federation from interfering in any internal and external affairs of the local union. It is well-settled that findings of facts of the NLRC are entitled to great respect and are generally binding on this Court, but it is equally well-settled that the Court will not uphold erroneous conclusions of the NLRC as when the Court finds insufficient or insubstantial evidence on record to support those factual findings. The same holds true when it is perceived that far too much is concluded, inferred. or deduced from the bare or incomplete facts appearing of record. In its decision, the Labor Arbiter declared that the act of disaffiliation and declaration of autonomy by the local union was part of its plan to take over the respondent federation. This is purely conjecture and speculation on the part of public respondent, totally unsupported by the evidence.

A local union has the right to disaffiliate from its mother union or declare its autonomy. A local union, being a separate and voluntary association, is free to serve the interests of all its members including the freedom to disaffiliate or declare its autonomy from the federation which it belongs when circumstances warrant, in accordance with the constitutional guarantee of freedom of association. The purpose of affiliation by a local union with a mother union a federation: is to increase by collective action the bargaining power in respect of the terms and conditions of labor. Yet the locals remained the basic units of association, free to serve their own and the common interest of all, subject to the restraints imposed by the Constitution and By-Laws of the Association, and free also to renounce the affiliation for mutual welfare upon the terms laid down in the agreement which brought it into existence. Thus, a local union which has affiliated itself with a federation is free to sever such affiliation anytime and such disaffiliation cannot be considered disloyalty. In the absence of specific provisions in the federations constitution prohibiting disaffiliation or the declaration of autonomy of a local union, a local may dissociate with its parent union. [24] The evidence on hand does not show that there is such a provision in ULGWPs constitution. Respondents reliance upon Article V; Section 6, of the federations constitution is not right because said section, in fact, bolsters the petitioner unions claim of its right to declare autonomy: SECTION 6. The autonomy of a local union affiliated with ULGWP shall be respected insofar as it pertains to its internal affairs, except as provided elsewhere in this Constitution. There is no disloyalty to speak of, neither is there any violation of the federations constitution because there is nothing in the said constitution which specifically prohibits disaffiliation or declaration of autonomy. Hence, there cannot be any valid dismissal because Article II, Section 4 of the union security clause in the CBA limits the dismissal to only three (3) grounds, to wit: failure to maintain membership in the union (1) for non-payment of union dues, (2) for resignation; and (3) for violation of the unions Constitution and By-Laws. To support the finding of disloyalty, the Labor Arbiter gave weight to the fact that on February 26, 1989, the petitioners declared as vacant all the responsible positions of ULGWP,

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filled these vacancies through an election and filed a petition for the registration of UWP as a national federation. It should be pointed out, however, that these occurred after the federation had already expelled the union officers. The expulsion was effective November 21, 1988. Therefore, the act of establishing a different federation, entirely separate from the federation which expelled them, is but a normal retaliatory reaction to their expulsion. With regard to the issue of the !legality or illegality of the strike, of the Labor Arbiter held that the strike was illegal for the following reasons: (1) it was based on an intra-union dispute which cannot properly be the subject of a strike, the right to strike being limited to cases of bargaining deadlocks and unfair labor practice (2) it was made in violation of the no strike, no lock-out clause in the CBA, and (3) it was attended with violence, force and intimidation upon the persons of the company officials, other employees reporting for work and third persons having legitimate business with the company, resulting to serious physical injuries to several employees and damage to company property. On the submission that the strike was illegal for being grounded on a non-strikeable issue, that is, the intra-union conflict between the federation and the local union, it bears reiterating that when respondent company dismissed the union officers, the issue was transformed into a termination dispute and brought respondent company into the picture. Petitioners believed in good faith that in dismissing them upon request by the federation, respondent company was guilty of unfair labor practice in that it violated the petitioners right to self-organization. The strike was staged to protest respondent companys act of dismissing the union officers. Even if the allegations of unfair labor practice are subsequently found out to be untrue, the presumption of legality of the strike prevails. [25] Another reason why the Labor Arbiter declared the strike illegal is due to the existence of a no strike no lockout provision in the CBA. Again, such a ruling is erroneous. A no strike, no lock out provision can only be invoked when the strike is economic in nature, i.e. to force wage or other concessions from the employer which he is not required by law to grant. [26] Such a provision cannot be used to assail the legality of a strike which is grounded on unfair labor practice, as was the honest belief of herein petitioners. Again, whether or not there was indeed unfair labor practice does not affect the strike. On the allegation of violence committed in the course of the strike, it must be remembered that the Labor Arbiter and the Commission found that the parties are agreed that there were violent incidents resulting to injuries to both sides, the union and management. [27] The evidence on record show that the violence cannot be attributed to the striking employees alone for the company itself employed hired men to pacify the strikers. With violence committed on both sides, the management and the employees, such violence cannot be a ground for declaring the strike as illegal. With respect to the dismissal of individual petitioners, the Labor Arbiter declared that their refusal to heed respondents recall to work notice is a clear indication that they were no longer interested in continuing their employment and is deemed abandonment. It is admitted that three return to work notices were sent by respondent company to the striking employees on March 27, April 11, and April 21, 1989 and that 261 employees who responded to the notice were admitted back to work. However, jurisprudence holds that for abandonment of work to exist, it is essential (1) that the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (2) that there must have been a clear intention to sever the employer employee relationship manifested by some overt acts. [28] Deliberate and unjustified refusal on the part of the employee to go back to his work post and resume his employment must be established. Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. [29] And the burden of proof to show that there was unjustified refusal to go back to work rests on the employer. In the present case, respondents failed to prove that there was a clear intention on the part of the striking employees to sever their employer-employee relationship. Although admittedly the company sent three return to work notices to them, it has not been substantially proven that these notices were actually sent and received by the employees. As a matter of fact, some employees deny that they ever received such notices. Others alleged that they were refused entry to the company premises by the security guards and were advised to secure a clearance from ULGWP and to sign a waiver. Some employees who responded to the notice were allegedly told to wait for further notice from respondent company as there was lack of work.

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Furthermore, this Court has ruled that an employee who took steps to protest his lay-off cannot be said to have abandoned his work. [30] The filing of a complaint for illegal dismissal is inconsistent with the allegation of abandonment. In the case under consideration. the petitioners did, in fact, file a complaint when they were refused reinstatement by respondent company. Anent public respondents finding that there was no unfair labor practice on the part of respondent company and federation officers, the Court sustains the same. As earlier discussed, union security clauses in collective bargaining agreements, if freely and voluntarily entered into, are valid and binding. Corrolarily, dismissals pursuant to union security clauses are valid and legal subject only to the requirement of due process, that is, notice and hearing prior to dismissal. Thus, the dismissal of an employee by the company pursuant to a labor unions demand in accordance with a union security agreement does not constitute unfair labor practice. [31] However the dismissal was invalidated in this case because of respondent companys failure to accord petitioners with due process, that is, notice and hearing prior to their termination. Also, said dismissal was invalidated because the reason relied upon by respondent Federation was not valid. Nonetheless, the dismissal still does not constitute unfair labor practice. Lastly, the Court is of the opinion, and so holds, that respondent company officials cannot be held personally liable for damages on account of the employees dismissal because the employer corporation has a personality separate and distinct from its officers who merely acted as its agents. It has come to the attention of this Court that the 30-day prior notice requirement for the dismissal of employees has been repeatedly violated and the sanction imposed for such violation enumerated in Wenphil Corporation vs. NLRC[32] has become an ineffective deterrent. Thus, the Court recently promulgated a decision to reinforce and make more effective the requirement of notice and hearing, a procedure that must be observed before termination of employment can be legally effected. In Ruben Serrano vs. NLRC and Isetann Department Store. (G.R. No. 117040 January 27 2000) the Court ruled that an employee who is dismissed, whether or not for just or authorized cause but without prior notice of his termination, is entitled to full backwages from the time he was terminated until the decision in his case becomes final, when the dismissal was for cause, and in case the dismissal was without just or valid cause, the backwages shall be computed from the time of his dismissal until his actual reinstatement. In the case at bar, where the requirement of notice and hearing was not complied with the aforecited doctrine laid down in the Serrano case applies. WHEREFORE, the Petition is GRANTED; the decision of the National Labor Relations Commission in Case No. NCR-00-0904199-89 is REVERSED and SET ASIDE; and the respondent company is hereby ordered to immediately reinstate the petitioners to their respective positions. Should reinstatement be not feasible, respondent company shall pay separation pay of one month salary for every year of service. Since petitioners were terminated without the requisite written notice at least 30 days prior to their termination, following the recent ruling in the case of Ruben Serrano vs. National Labor Relations Commission and Isetann Department Store, the respondent company is hereby ordered to pay full backwages to petitioner-employees while the Federation is also ordered to pay full backwages to petitioner-union officers who were dismissed upon its instigation. Since the dismissal of petitioners was without cause, backwages shall be computed from the time the herein petitioner employees and union officers were dismissed until their actual reinstatement. Should reinstatement be not feasible, their backwages shall be computed from the time petitioners were terminated until the finality of this decision. Costs against the respondent company. SO ORDERED. _______________________ G.R. No. 106316 May 5, 1997 FIRST CITY INTERLINK TRANSPORTATION CO., INC., doing business under the name and style FIL TRANSIT, petitioner, vs. THE HONORABLE SECRETARY MA. NIEVES ROLDAN-CONFESOR, in her capacity as Secretary of Labor and Employment, and NAGKAKAISANG MANGGAGAWA NG FIL TRANSIT-NATIONAL FEDERATION OF LABOR (NMF-NFL), respondents. MENDOZA, J.: This is a petition for review on certiorari to set aside the order dated July 23, 1992 of the respondent Secretary of the Department of Labor and Employment, ordering the payment of backwages and separation pay to striking employees of petitioner First City Interlink Transportation Co., Inc. Petitioner First City Interlink Transportation Co., Inc., is a public utility corporation doing business under the name and style Fil Transit. Respondent Nagkakaisang Manggagawa ng Fil Transit-National Federation of Labor (NM-NFL) is a labor union composed of employees of Fil Transit. On May 27, 1986, the Fil Transit Employees Union filed a notice of strike with the Bureau of Labor Relations (BLR) because of alleged unfair labor practice of petitioner. Despite several conciliation conferences, the parties failed to reach an

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agreement, so that, on June 17, 1986, the Union went on strike. As a result several workers were dismissed. The Union filed another notice of strike alleging unfair labor practice, massive dismissal of union officers and members, coercion of employees and violation of workers' rights to self-organization. Conciliation conferences were again held but, on July 27, 1986, the Union again went on strike, lifting their picket only on August 2, 1986. On September 16, 1986, the then Minister of Labor and Employment, after assuming jurisdiction over the dispute under Art. 264(g) and Art. 278(b) of the Labor Code, ordered (1) all striking employees including those who were dismissed prior to the June 17, 1986 strike to return to work within forty-eight (48) hours from receipt of the order; and (2) petitioner to accept all the returning employees under the same terms and conditions prevailing previous to the dispute. On September 22, 1986, petitioner filed a motion for reconsideration and later a supplemental motion for reconsideration, contending that no strike vote had been obtained before the strike was called and the result of strike vote was not reported to the Ministry of Labor and Employment. Its motion was, however, not acted upon for the reason that petitioner had already brought the matter to this Court on certiorari, resulting in the issuance of a temporary restraining order. The petition for certiorari was denied and the temporary restraining order was lifted by this Court in its resolution dated February 23, 1987. On November 24, 1987, the Department of Labor and Employment issued a writ of execution, ordering the chief of the execution arm of the NLRC to cause the actual and physical return to work of all striking employees, including those dismissed prior to the June 17, 1986 strike under the same terms and conditions prevailing previous to the dispute, and to secure certification that the parties have complied with such return to work order. The Union then filed a motion for the award of backwages in the total amount of P1,364,800.00 for the period December 9, 1987 up to February 9, 1988 and for the issuance of a writ of execution. On March 23, 1988, the Sheriff reported in his return that only 66 employees reported back to work and were accepted by petitioner on condition that they submit certain requirements. On May 15, 1990 the Secretary of Labor issued the order awarding backwages and the corresponding writ of execution as follows: Considering the unreasonable stance adopted by Fil Transit, Inc., vis-a-vis the implementation of the return to work order, and the consequent denial to the workers of their means of livelihood, this office is inclined to grant the union's prayer for backwages computed from the time the Writ of Execution was first served upon the company. We demur, however, to the amount of P1,364,800.00 backwages as computed by the union. This is a matter which is best discussed and maybe the subject of later proceedings. In the meantime, our paramount concern is the readmission of the workers to forestall further economic suffering arising from their loss income. WHEREFORE, in view of the foregoing, the management of Fil Transit, Inc. is ordered to comply strictly with the return to work directive dated September 16, 1986, as sought to be implemented by the writ of execution of November 24, 1987. The list of employees attached to the aforementioned writ is hereby adopted en toto as the sole basis for management's compliance. . . . 1 Petitioner moved for a reconsideration but its motion was denied. In his order dated August 27, 1991, the Secretary of Labor ruled: WHEREFORE, premises considered, the instant motion for reconsideration is hereby DENIED. The Fil Transit, Inc. and Fil Transit Employees Union NFL are hereby directed to file their position papers and evidence with this office, within fifteen (15) days from receipt hereof, on the following issues, to wit: (a) Amount of backwages due to the workers covered by the Return to Work Order of September 16, 1986 using as basis therefore the list attached to the writ of execution; (b) the issues identified in the Assumption Order of September 16, 1986, to wit; (1) Alleged unfair labor practices, harassment, coercion, violation of worker's right to self-organization, alleged non-payment of ECOLA. (2) Validity of fines and suspensions; (3) Validity of charge of wage distortion. The Order dated 15 May 1990, calling for the compliance with the return to work directive of September 16, 1986 is hereby AFFIRMED. No further motions of this same nature shall be entertained. 2 Petitioner questioned the order in a petition for certiorari, prohibition and mandamus filed with this Court which, however, dismissed the petition on September 23, 1991, for lack of showing that the Secretary of Labor committed a grave abuse of discretion in rendering the questioned order. 3 Thereafter, respondent Union submitted its position paper on October 30, 1991 and asked the Secretary of Labor. 1. To declare respondent company guilty of unfair labor practice for its continuous defiance of the return to work Order issued by the Department of Labor and Employment. 2. To pay complainant backwages from the time they were refused of their reinstatement last 1986. 3. To pay individual complainants their separation pay, in lieu of reinstatement considering that complainants are no longer interested to go back to Fil Transit. 4. To pay complainant union attorney's fees . . . On the other hand, petitioner First City Interlink Transportation Co., Inc. asked that: 1. The Order of 27th August 1991, be amended, to include, among the issues the question of the legality or illegality of the strike; 2. Respondent be given an extension of thirty (30) days from today within which to file its position paper; 3. That after the parties shall have submitted their respective position papers the case be set for hearing to afford the respondent the opportunity to cross examine the supposed complainants.

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Petitioner asked for another extension of the time for submitting its position paper that as of the date of respondent's questioned order of July 23, 1992, it had not yet submitted its paper. Without waiting for the paper, the Secretary of Labor ruled the strike of the Union legal and awarded backwages and separation pay to the strikers. The dispositive portion of her decision, dated July 23, 1992, states: WHEREFORE, premises considered, Fil Transit Co., Inc., is hereby ordered to pay the dismissed striking employees the following: 1. Backwages for three (3) years without qualification and deduction and; 2. Separation pay equivalent to one-half month pay for every year of service in lieu of reinstatement, the date of this office's order as the cut-off date. The Director, Bureau of Working Conditions (BWC), this Department, is hereby directed to immediately compute the monetary award, as ordered, which computation shall form part of this order. Hence, this second petition questioning the grove order. The petitioner contends that: 1. The Honorable Respondent Secretary of Labor erred in declaring the strike legal; 2. The strikers, having engaged in violent, illegal and criminal acts, have lost their employment status; 3. The Honorable Secretary erred in declaring that management refused to comply with the Return to Work Order; 4. The Honorable Secretary erred in disregarding the report of the sheriff. 5. The striking employees are not entitled to backwages; 6. Assuming that backwages could properly be awarded, there was no basis for the amount fixed by the Secretary of Labor. 7. The judgment against Fil Transit is null and void. First. Petitioner's main contention is that the strike called by the Union was illegal. Pursuant to Art. 263(c)(f) of the Labor Code, the requisites for a valid strike are as follows: (1) a notice of strike filed with the Department of Labor at least 30 days before the intended date thereof or 15 days in case of unfair labor practice; (2) strike vote approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; (3) notice given to the Department of Labor and Employment of the results of the voting at least 7 days before the intended strike. These requirements are mandatory. 4 Petitioner contends that the strike staged by the Union was illegal because no strike vote had been taken before the strike was called. This matter was raised by petitioner before the Secretary of Labor and now in this petition. However, in none of the numerous pleadings filed by respondent Union before this Court, has it been shown that a strike vote had been taken before declaring a strike. As between petitioner and respondent Union, the latter is in a better position to present proof of such fact. The Union's failure to do so raises the strong probability that there was no strike vote taken. The first and only instance it is mentioned that such a vote had been taken before the strike was called was in the order dated July 23, 1992 of the Secretary of Labor in which she stated: . . . the records show that a notice of strike was filed by the union with the Bureau of Labor Relations (BLR) on May 27, 1986, and after a failure of several conciliation conferences due to management's consistent refusal to appear, the union went on strike on June 17, 1986, after a strike vote was obtained. 5 (Emphasis added) But the Secretary of Labor did not indicate the basis for her statement nor the date the strike vote was allegedly taken. Neither did she mention whether her office had been notified of the strike vote as required by law. For that matter the statement in the same order that a notice of strike had been filed because several conciliation conferences failed "due to management's consistent refusal to appear" is contrary to evidence in the record. Annexes E and F of the petition show that management was duly represented during the conciliation proceeding prior to the strike on June 17, 1986. Annex G likewise shows that at the conciliation conference held on July 17, 1986, management actively participated, contrary to the statement in the order of the Secretary of Labor that the failure of the second set of conciliation conferences was due to management's refusal to attend. Moreover, even assuming that a strike vote had been taken, we agree with petitioner that the Union nevertheless failed to observe the required seven-day strike ban from the date the strike vote should have been reported to the DOLE up to the time the Union staged the strike on June 17, 1986. As petitioner contends: It must be noted in this regard that as shown in the minutes of conciliation conferences (Annex "F"), the parties met in a conciliation conference on June 13, 1986, four (4) days before the June 17, 1986 strike. So even if it is conceded that a strike vote was taken, there would have been non-compliance with the requisite cooling off period and the 7-day strike ban for the simple reason that between June 13, 1986, the day the parties met for conciliation conference and June 17, 1986, the day of the strike, there were only four (4) days. 6 It is nonetheless contended by the Solicitor General that "[a] strike inspired by good faith is not illegal simply because certain requirements were not followed," citing the case of Ferrer v. CIR. 7 The contention has no merit. In Ferrer, the strikers failed to observe the 30-day cooling off period, but this Court found the strike legal because of the strikers' belief in good faith that the employer committed unfair labor practice. But, in the case at bar, what is lacking is the strike vote which should have been reported to the DOLE seven days before staging the strike. The importance of the strike vote and reporting of the results to the DOLE cannot be gainsaid as it is the Union itself that the law seeks to protect by ensuring that the majority of its members voted in favor of the strike. As held inNational Federation of Sugar Workers (NFSW) v. Ovejera: 8 When the law says "the labor union may strike" should the dispute "domain unsettled until the lapse of the requisite number of days (cooling-off period) from the mandatory filing of the notice," the unmistakeable implication is that the union may not strike before the lapse of the cooling-off period. Similarly, the

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mandatory character of the 7-day strike ban after the report on the strike-vote is manifest in the provision that "in any case," the union shall furnish the MOLE with the results of the voting "at least seven (7) days before the intended strike, subject to the (prescribed) cooling-off period. "It must be stressed that the requirements of cooling-off period and 7-day strike ban must both be complied with, although the labor union may take a strike vote and report the same within the statutory cooling-off period. Moreover, petitioner is right that good faith can not be invoked by the Union in the case. As the records will bear out, the private respondent had clearly acted in bad faith when it went on strike. Annex "F" of the petition (June 13, 1986 Minutes of Conciliation Proceedings) attached to the records of the case, shows that at the time the strike was staged, conciliation meetings were going on. In fact, said Annex "F" reveals that the parties met in a conciliation meeting on June 13, 1986 and agreed to meet further on June 17, 1986 at 2:00 P.M. (Please see Annex "F"). Instead of meeting with petitioner on the scheduled conciliation meeting on June 17, 1986 as agreed upon, private respondent went on strike. Certainly, this act of the private respondent cannot be characterized as having been made in good faith. 9 Indeed, there is no finding in this case that petitioner was guilty of the alleged unfair labor practices as charged by the Union. The award of backwages and separation pay was based solely on the alleged refusal of petitioner to comply with the Return to Work Order an issue which will be discussed in the latter part of this decision. Hence, the ruling in Ferrer v. CIR that the strike staged before the expiration of the 30-day cooling off period is not illegal because of what the strikers perceived in good faith to be unfair labor practices of the employer does not apply. Second. Petitioner contends that the strikers, having engaged in violent, illegal, and criminal acts, have lost their employment status. The Labor Code considers the commission of these acts a "prohibited activity" 10 and any worker or union officer, who knowingly participates in their commission during a strike, may be declared to have lost his employment status. Respondent Secretary held that responsibility for such acts should be individual and not collective. In her questioned order of July 23, 1992, she stated: It is contended, by the Company, that several acts of violence were allegedly committed by former employees of the company during the strike. However, in the absence of clear proof that the strikers committed the same by design or policy, only those strikers who committed illegal acts could be held personally responsible therefor. To our mind, a wholesale dismissal of the strikers from their employment on the basis that the strike was attended by violence, is not warranted in the case at bar. As held by the Supreme Court in the case of FEATI Faculty Club v. FEAU University, et al.; G.R. NO. L-31504, to wit: Not every form of violence suffices to affix the seal of illegality on a strike as to cause the loss of employment of the guilty party. Where acts of violence while the strike lasts are sporadic and not pervasive by design and policy, responsibility therefore is individual and not collective. 11 Contrary to respondent Secretary's finding, the strike declared by the Union was attended by pervasive and widespread violence. The acts of violence committed were not mere isolated incidents which could normally occur during any strike. The hijacking of Fil-Transit Bus No. 148 at the intersection of EDSA and Quezon Avenue on Sunday, July 27, 1986, three days before the scheduled conciliation conference, reveals that it was staged in pursuance of a preconceived plan. This was followed by the barricading of the terminal in Alabang by means of five buses which had also been hijacked. In the days that followed, the strikers persisted in their violent acts, (1) the hijacking of 26 more buses which resulted in injuries to some employees and panic to the commuters; (2) the puncturing of tires; (3) the cutting of electric wirings, water hoses and fan belts; and (4) the alleged theft of expensive equipment such as fuel injections worth P30,000 each. The commission of these illegal acts was neither isolated nor accidental but deliberately employed to intimidate and harass the employer and the public. The strikers even resorted to the use of molotov bombs which were thrown into the petitioner's compound. Nevertheless, we are constrained to uphold the respondent Secretary's ruling that responsibility for these illegal acts must be on an individual and not collective basis. Therefore, although the strike was illegal because of the commission of illegal acts, only the union officers and strikers who engaged in violent, illegal and criminal acts against the employer are deemed to have lost their employment status. Union members who were merely instigated to participate in the illegal strike should be treated differently. 12 Third. As already noted, respondent Secretary awarded backwages on the ground that petitioner had refused to comply with the Return to Work Order of September 16, 1986. Petitioner explains that its failure to immediately reinstate the employees was due to the Union's insistence on the reinstatement of even those who had been dismissed for cause and had been dismissed even before the strike held on June 17, 1986. Moreover, by the time the respondent Secretary issued the questioned order of July 23, 1992, petitioner had already complied with the Return to Work Order. Out of the approximately 160 employees included in the Return to Work Order of the Secretary of Labor, 66 employees had been admitted back to work. The rest were not readmitted to work because they simply did not return on March 8, 1988, the date agreed upon by the parties. On the other hand, the Union contends that petitioner imposed certain requirements as condition for reinstatement which amounted to a refusal to comply with the Return to Work Order. These were: 1. Cash of P1,000.00 2. X-Ray, urinalysis and stool results 3. Birth Certificate/Baptismal 4. NBI Clearance 5. Police Clearance 6. Barangay Clearance 7. Residence Certificate 8. High School Diploma/Transcript of records

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9. Certification of employment 10. Driver's/Conductors/Conductresses license 11. Marriage Contract (If married) 12. Pictures 4 1x1 colored 13. Pictures 4 2x2 black and white Some requirements are indeed unreasonable considering that the strikers were not being hired for the first time but merely being reinstated. Reinstatement connotes a continuity of the employer-employee relationship as contrasted to an initial employment. Hence, a distinction must be made between requirements which are valid management prerogatives and those which are unreasonable. On the other hand, there are certain conditions which are valid. The requirement to submit NBI, Police and Barangay clearances is reasonable to enable management to determine whether the returning employees have pending charges of illegal acts especially those committed during the strike. So also is the requirement to have driver's and conductor's/conductress' license, to enable them to perform their tasks. The pictures required are necessary for the employer's personnel records and so can validly be required. With respect to the required medical examination, the same can be justified as management prerogative since it is the employer's right to ensure that the employees are physically fit to resume the performance of their duties. This is especially true in this case, because two years had elapsed since the time of dismissal of the employees. As held in Jackbilt Concrete Block Co., Inc. v. Norton & Harrison Co., 13 an employer should not be compelled to reinstate an employee who is no longer physically fit for the job from which he was ousted. It is true that in Davao Free Workers Front v. CIR, 14 it was held that the medical examination could not be required as a condition for reinstatement, but that is in cases where the employer is guilty of unfair labor practice. As this Court explained: To require [employees] to undergo a physical or medical examination as a precondition of reinstatement or return to work simply because of the long pendency of their case which is due to no fault of theirs would not only defeat the purpose of the law and the constitutional and statutory mandates to protect labor but would work to their unfair prejudice as aggrieved parties and give an undue advantage to employers as the offenders who have the means and resources to wage attrition and withstand the bane of protracted litigation. Hence, the aggrieved workers may be subject to periodic physical or medical examination as old reinstated workers, but not as a precondition to their reinstatement or return to work with the important consequence that if they are found to be ill or suffering from some disability, they would be entitled to all the benefits that the laws and company practices provide by way of compensation, medical care, disability benefits and gratuities, etc. to employees and workers. 15 In the present case, although the Union has charged petitioner with unfair labor practice, the matter is still to be resolved. Hence, the ruling in Davao Free Workers Front v. CIR 16 does not apply. With respect to some of the requirements (i.e., P1,000, cash bond, birth/baptismal certificate, residence certificate, high school diploma/transcript of records, certification of employment, and marriage contract), we agree with respondent Union that these requirements cannot be imposed being more appropriate for employees who are being hired for the first time. However, the imposition of such requirements by the employer did not amount to a refusal to admit workers back to work or an illegal lock-out so as to entitle the workers to the payment of backwages under Art. 264(g) of the Local Code, the pertinent portion of which states: . . . For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. . . For the fact is that petitioner after all accepted all returning employees. If there were workers who were not taken in, they were those who did not return to work on March 8, 1988. In the Sheriff's Return dated March 23, 1988, Antonio P. Soriano, Deputy Sheriff, reported: 1. That on 01 March 1988, as per appointment, undersigned together with a number of returning employees went to the company (FIL TRANSIT, INC.,) to discuss the final details of the implementation of the Order. The parties sat down with Mr. Virgilio M. Aquino, who represented Management. After a while and upon suggestion of said Mr. Aquino, parties agreed that the employee will return on 08 March 1988, where the returning employee duly covered by and qualified under the Order shall report for work with Management reiterating its willingness to comply strictly with the said Order of this Honorable Office; 2. . . . However, it appearing [sic] that only sixty-six (66) employees reported back for work, as evidenced in the yellow pad showing the names and their corresponding signatures. Acting on the same, Management accepted the returning employees. . . 17 xxx xxx xxx From the foregoing, undersigned is of the opinion that the Order has been complied with upon completion of the above-requirements being requested by Management. . . . In Jackbilt Concrete Block Co., Inc., v. Norton & Harrison Co., 18 the unjustified refusal of the striking employees to return to work and comply with the employer's requirement to undergo a medical examination was considered a waiver of their right to reinstatement. Consequently, petitioner is not liable for backwages. Employees, who are not guilty of illegal acts and, therefore, are entitled to reinstatement would only be entitled to backwages if they were refused readmission. As none of such employees was refused readmission, no backwages are due from petitioner. On the other hand, employees who are entitled to be reinstated because they did not take part in illegal acts would be entitled to separation pay in lieu of reinstatement in view of the fact that, after all the time that this case has been pending, reinstatement is no longer feasible. Separation pay should be computed

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only up to March 8, 1988, the date when employees were supposed to return as agreed upon by the parties. Those who failed to return on March 8, 1988, will not be entitled to separation pay after such date. In view of the conclusion thus far reached, we find it unnecessary to discuss the other questions raised in this case. To summarize, this Court holds that: 1) The respondent Secretary of Labor erred in declaring the strike legal. There is no evidence to show that a strike vote had in fact been taken before a strike was called. Even assuming that a strike vote had been taken, the strike called by the Union was illegal because of nonobservance by the Union of the mandatory seven-day strike ban counted from the date the strike vote should have been reported to the Department of Labor and Employment up to the time the Union staged the strike on June 17, 1986. In accordance with Art. 264 of the Labor Code, any union officer who knowingly participated in the illegal strike is deemed to have lost his employment status. 2) The commission of the illegal acts during the strike rendered it illegal. However, only officers and leaders of the Union and workers guilty of illegal acts are liable. Such employees are deemed to have lost their employment status in accordance with Art. 264 of the Labor Code. 3) Petitioner substantially complied with the Return to Work Order. The medical examination, NBI, Police and Barangay Clearances as well as the driver's and conductor's/conductress licenses and photographs required as conditions for reinstatement were reasonable management prerogatives. However, the other requirements imposed as condition for reinstatement were unreasonable considering that the employees were not being hired for the first time, although the imposition of such requirements did not amount to refusal on the part of the employer to comply with the Return to Work Order or constitute illegal lockout so as to warrant payment of backwages to the strikers. If at all, it is the employees' refusal to return to work that may be deemed a refusal to comply with the Return to Work Order resulting in loss of their employment status. As both the employer and the employees were, in a sense, at fault or in pari delicto, the nonreturning employees, provided they did not participate in illegal acts; should be considered entitled to reinstatement. But since reinstatement is no longer feasible, they should be given separation pay computed up to March 8, 1988 (the date set for the return of the employees) in lieu of reinstatement. 4) Because the award of backwages was based on the alleged refusal of the employer to comply with the Return to Work Older, the same should be set aside for being without basis. WHEREFORE, the questioned order of respondent Secretary of Labor is SET ASIDE. The union officers who participated in the illegal strike and those who participated in the commission of illegal acts are deemed to have lost their employment status. Petitioner is ORDERED to pay the employees who did not participate in the commission of illegal acts during the strike separation pay. SO ORDERED. ____________________ G.R. No. 116128 July 12, 1996 ALLIED BANKING CORPORATION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, For review in these consolidated petitions is the Decision, dated May 20, 1994, of the National Labor Relations Commission as well as its Order, dated July 8, 1994, in NLRC NCR Case No. 004005-92 and NLRC NCR Case No. 00316-92. In its petition, 1 the Bank questions the latter portion of the decision of the National Labor Relations Commission (NLRC) wherein it remanded to the Labor Arbiter the issue of whether or not the forty-one (41) respondents are entitled to back wages corresponding to the period that they should have been reinstated since 1986, pursuant to the guideline stated in our Resolution, dated May 4, 1988. Respondents, on the other hand, contend in their petition 2 that the NLRC gravely abused its discretion in affirming the validity of their dismissal by the Bank. The dispute between petitioner and respondent Union started when their collective bargaining agreement which was to expire on June 30, 1984 came up for renewal. They failed to reach an amicable settlement particularly on the wage increase issue. Respondent Union thereupon filed a notice of strike with the Bureau of Labor Relations. On December 16, 1984, then Minister of Labor and Employment, Blas Ople assumed jurisdiction over the dispute pursuant to Article 263 (g) of the Labor Code of the Philippines, as amended. The orders enjoined the Union from declaring a strike and the management from effecting a lock out. 3 The orders notwithstanding, respondent Union nevertheless filed on December 20, 1984, a report on the results of the strike vote that it earlier conducted. On January 3, 1985, respondent Union staged a strike upon the Union president's contention that the Labor Minister's assumption order was a mere scrap of paper. On January 4, 1985, petitioner filed with the Ministry of Labor and Employment a Manifestation and Urgent Motion praying for a return-to-work order. On January 6, 1985, Minister Ople granted the motion and issued a return-to-work order which included a P1,000.00 grant per employee chargeable to future CBA benefits. In an Order, issued on January 18, 1985, Minister Ople directed the parties to continue negotiations until January 31, 1985; otherwise, if no compromise agreement is reached, he will personally resolve the bargaining deadlock. The parties failed to break the deadlock and so, Minister Ople issued an Order, dated January 31, 1985, directing them to incorporate in their collective agreement the awards granted. 4 On February 11, 1985, "certain members of the Union resumed the strike and, on the following days, acts of violence were committed . . . resulting in the filing of criminal charges against some of the strikers." 5Petitioner identified these "certain members of the Union," numbering 271, the respondents included. Petitioner, through notices published in the Bulletin Today, the Times Journal, and the Daily Express, directed the striking employees to return to work not later than 1:00 p.m. of February 13, 1985.

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In spite of these notices, respondents failed to report for work on the stated deadline. Respondents explained that the resumption of their picketing activities was brought about by their belief that Minister Ople's decision, dated January 31, 1985, was not based on justice, equity and reason. Private respondent's posture of intransigence caused petitioner to issue notices of their termination. Meeting the Union demands halfway, Minister Ople, on March 7, 1985, issued a Resolution modifying his January 31, 1985 Order and so the union lifted its picket lines and notified petitioner, on March 11, 1985, that the striking employees were returning back to work. Petitioner refused to accept them back on the ground that the strikers have already been dismissed for abandonment of work when they failed to obey the assumption order. In order to quell further dispute, Minister Ople, on June 5, 1985, issued an Order which directed the bank to reinstate provisionally all striking workers except (a) those who have already accepted their separation pay; (b) officers of the union; and (c) those with pending criminal charges. The Union then filed with us a petition for certiorari, with a prayer for the issuance of a preliminary mandatory injunction, docketed as G.R. No. 71239. In the said petition, the union asked that the June 5, 1985 Order of Minister Ople be modified to likewise direct the reinstatement of all union officers, employees with pending criminal cases and employees who have received their separation pay with full back wages, emergency cost of living allowance (ECOLA) and employee benefits counted from March 8, 1985 until actually reinstated. In a Resolution, dated June 18, 1986, we remanded the petition to the Ministry of Labor and Employment, with the instruction to resolve all pending factual and legal issues relative to the petition. On August 29, 1986, Minister Augusto Sanchez, the successor of Minister Ople, modified the last Order of the latter by order the reinstatement of all striking employees, except those who have already accepted their separation pay. The bank, as a consequence, filed a petition with the Supreme Court, docketed as G.R. No. 75749, to nullify the aforesaid Order. In amplification of our Resolution of September 15, 1986, we issued in G.R. No. 75749 the following Resolution, dated May 4, 1988: In a resolution dated September 15, 1986 in G.R. No. 75749, the Court issued "a Temporary Restraining Order" enjoining enforcement of the August 29, 1986 order of the Minister of Labor and Employment only insofar as it directs the payment of back wages, allowances, and other benefits due to the private respondents effective March 11, 1985 until their actual reinstatement. Considering, however, the financial plight of some of the private respondents, the Court further Resolved to order the petitioner to advance the equivalent of two (2) months salary to each of the private respondents entitled to reinstatement under the MOLE order, said amount to be repaid to the petitioner or charged to accumulated back wages depending on the final outcome of this case' (p. 64, Rollo). A motion for clarification of this Resolution filed by the Bank was denied. In view of the above-mentioned resolution, Minister Sanchez' order to reinstate back to work all striking employees except those who have accepted separation pay was ordered implemented. 6 It appears that the problem of reinstating striking employees except those who had accepted separation pay was reduced a bit when 71 of 112 affected employees were additionally reinstated. Thus, only 41 among the individual respondents were not reinstated. In our Resolution dated May 4, 1988 we observed that: The individual private respondents in G.R. No. 75749 have filed motions to cite in contempt the Bank for violation of the Court's Resolution ordering the implementation of the reinstatement order of Minister Sanchez. They alleged that they were "forced to file the Motions to expose and protest the unabating display of bad faith on the part of the Bank in effecting their reinstatement. (p. 400, Rollo in 74749)." We did not act favorably upon private respondents' "motion to cite in contempt the bank for violation of the court's Resolution ordering the implementation of the reinstatement order of Minister Sanchez." Instead, we dismissed said petitions of the union and the individual respondents in G.R. No. 71239, and the Bank's petition in G.R. No. 71239, and in G.R. No. 75749; and remanded them to the Department of Labor and Employment and its pertinent agencies for further proceedings as stated in our resolution, to wit: A thorough review of the voluminous records of these two petitions shows that unresolved factual issues prevent a final solution to the individual respondents' and the Bank's problems. First, whether or not the strikes staged by the Union and the individual respondents are legal remains unresolved. This question has been pending before the Arbitration Branch of the National Labor Relations Commission (NLRC) even before the filing of the two petitions. In his order dated August 29, 1986, Minister Sanchez ordered reinstatement pending the final outcome of the petition initiated by the Bank to declare the strike illegal. The reinstatement is, therefore, provisional. A permanent reinstatement will depend on the legality or illegality of the strike. Second, the Department of Labor and Employment (DOLE) or the NLRC must also look into the roles played by the individual respondents should the strike be declared illegal. Third, in this Court's June 18, 1986 resolution, the respondent Minister was ordered to resolve (sic) the certain factual questions, to wit: There are various factual issues which must first be resolved. Counsel for the petitioners admits that the petitioners are not authorized by the Allied Bank Employees Union nor NUBE to speak for the Union or the bargaining unit. Neither have the petitioners any authority to file a case in behalf of the Union officers and certain separated employees whom they want this Court to order reinstated. In fact, there are statements filed by individual petitioners who manifest that they did not authorize the petition to be filed in their names. Counsel for the petitioners failed to clarify at the June 18, 1986 hearing how many of the petitioners he really represents, how many workers have received separation

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pay, and how many of these workers have authorized the filing of a case in their behalf. Counsels for the parties have given this Court conflicting data on positions of terminated personnel allegedly being filled by new employees and various other factual matters necessitating the presentation of evidence. It is also rather odd why a petitioner union affiliated with NUBE and the Trade Union Congress of the Philippines (TUCP) or its members should be represented in this case by the legal counsel of a rival labor federation, the Kilusang Mayo Uno (KMU). There is at present pending with the respondent a supplemental motion for partial reconsideration of the order now challenged in this petition. Counsel for the petitioner admits that they have not moved in the premises and have not asked the present Minister of the MOLE whether or not he would reconsider the questioned order issued by his predecessor. Both parties are agreed that conciliation proceedings have not terminated and both expressed a willingness to continue the proceedings. The issue of whether or not the strike which commenced on February 11, 1985 is legal remains pending determination by NLRC and calls for the presentation of the evidence. The status of the pending criminal case likewise not clear. The Assistant Solicitor General who represented MOLE informed the Court that the respondent Minister had to suspend action on the various matter pending before him because the petitioners decided to file this petition before allowing the administrative process to make the initial determination (p. 420, Rollo in G.R. No. 71239). These questions have not been resolved to date. And fourth, there are likewise factual matters that have cropped up in G.R. No. 75749 with regards (sic) to which the court has neither the means or (sic) the time to look into. The appropriate agencies of DOLE should conduct hearings on the contention of the bank that it is now impossible to reinstate the remaining 41 respondents inspite (sic) of its alleged bona fide attempts to find equivalent positions for them and on the counter-contentions of the individual respondents that there was discrimination in the reinstatement of their companions, that the contractual employees were hired to displace them, that the bank employed harassment tactics, and that their dismissal was summary, arbitrary, and malicious in gross violation of this Court's twin resolutions on September 17 and 29, 1986. All the unresolved factual questions call for the presentation of evidence before the appropriate administrative agency. They cannot be resolved through pleadings or oral arguments before the Court. 7 xxx xxx xxx In view of this development, the respondents, including the forty-one (41) individual respondents, led by Rolando Ocampo, Rowena Rebosa and Alfredo del Pilar, were not reinstated by the bank. Subsequently, arbitration of the Bank's petition continued with the issues confined to these matters, viz: (a) whether or not the subject strikes, i.e., one that took place on January 3 and 4, 1985 to March 11, 1985, were illegal; (b) whether or not anyone of the individual respondents committed illegal acts during the duration of the strikes; (c) whether or not the individual respondents were illegally dismissed and/or locked out; and (d) whether or not the respondent-employees are entitled to moral and exemplary damages. 8 After weighing the arguments of both parties, the Arbiter ruled that: There is not dispute that under Art. 263, paragraph (g) of the Labor code, as amended, the assumption by the Secretary of Labor and Employment over a labor dispute has the automatic effect of enjoining any intended or impending strike or lockout. When then Minister Blas Ople assumed jurisdiction over the labor dispute between the bank and the union on December 19, 1984, by operation of law, the intended strike of the respondent union was automatically enjoined. The union cannot feign ignorance of this legal mandate. It is the law and compliance therewith cannot be excused on the more convenient excuse of ignorance. Besides, the order of December 19, 1984 clearly reiterated such legal injunction such that the respondent union may not now be allowed to assert that it did not violate any law or order of the lawful authorities when it staged the strike on January 3 and 4, 1985. An assumption and/or certification order of the Secretary of Labor automatically results in a return-to-work of all striking workers, whether or not a corresponding order has been issued by the Secretary of Labor. Once an assumption/certification order is issued strikers are enjoined, or if one has already taken place, all strikers shall immediately return to work. A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal. . . . Admittedly by respondent union went on strike on January 3 and 4, 1985, barely sixteen (16) days after then Minister of Labor and Employment Blas Ople assumed jurisdiction. And while the labor dispute between the parties was still pending before Minister Blas Ople, another strike was staged on February 11, 1985 which continued up to March 11, 1985. Being in violation of the provisions of Art. 263, paragraph (g) of the Labor Code, as amended, as well as the assumption order of December 19, 1984, both strikes are, therefore, illegal and consequently, all union officers, namely, Tomas Gonzalo, Crisanto Balisi, Norberto Aguja, Benito Barrera, Hernanie Sison, Meynard Cuenca, Victor Alvares, Inocencio Salvador, Luisito Mendoza, Arturo Villanueva, and Pedro Pascual, are declared to have lost their employment status. This Branch does not agree with the respondents' contention that the strike on January 3 and 4, 1985 was already amicably settled and/or condoned by the bank when it agreed to accept back to work the striking workers. The bank merely complied with the return-to-work order of Minister Blas Ople issued on January 6, 1985 but this did not preclude the bank from questioning the legality or illegality of the said strike. Nor can this Branch accede to the respondents' assertion that they are merely acting in self-defense when they resumed their concerted activity on February 11, 1985 allegedly on account of unfair labor practices committed by the bank's representatives and agents. Regardless 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 undernine the authority of Secretary of Labor and Employment once an assumption order is issued. They cannot, for instance, ignore return-to-work

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orders, citing unfair labor practices on the part of the company, to justify their actions. . . . 9 The Labor Arbiter qualified that, under Article 264 (a) of the Labor Code, the individual respondents other than the union officers can be subjected to dismissal only in cases where they knowingly participated in the commission of illegal acts during the strike. Finding that all the individual respondents who were not officers of the union did not commit the illegal acts complained of, the Labor Arbiter held that they cannot validly be declared to have lost their employment status. With regard to the question of whether or not the Bank validly dismissed the respondents for their failure to obey the return-to-work notices, the Labor Arbiter held: . . . Implicit in the petitioner's argument is that the individual respondents by their failure to comply with the published return-to-work order are liable for abandonment of work. Abandonment as a ground for dismissal must be shown to be deliberate and that the employee involved has shown no more inclination to resume work. This is not true in the instant case. At the time they were terminated by the bank, the individual respondents were then on strike, and until the legality or illegality of the strike is resolved, the petitioner did not have any basis for terminating the individual respondents' services. Precisely, the primary reason why the respondents struck was rooted on their conviction that their economic demands that led to bargaining deadlock were justified. If the respondents through the strike have shown their eagerness in improving their employment situation, how could they now be held liable for abandonment. The grounds relied upon by the bank in terminating the individual respondents being non-existent, perforce such subject termination must be held to be without just and valid grounds, and consequently, the individual respondents are entitled to reinstatement with back wages from the time of their termination until their actual reinstatement. 10 Hence, the Labor Arbiter's disposition of the case, viz: WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered as follows: a) Declaring the strikes complained of as illegal and consequently, all union officers, namely, Tomas Gonzalo, Crisanto Balisi, Norberto Aguja, Benito Barrera, Harnanie Sison, Meynard Cuenca, Victor Alvarez, Inocencio Salvador, Luisito Mendoza, Arturo Villanueva, and Pedro Pascual, lost their employment status; b) Dismissing the petition to declare the strike illegal as against the other individual respondents; c) Declaring the dismissal of the abovenamed 163 counter-complainants as illegal and ordering the petitioner Allied Banking Corporation to pay their aggregate back wages and other computed benefits in the total sum of P5,049,692.73; d) Ordering the petitioner Allied Banking Corporation to reinstate the forty-one (41) counter-complainants led by Rolando Ocampo, Rowena Rebosa and Alfredo del Pilar, to their former or substantially equivalent position with all the rights, privileges and benefits appertaining thereto including seniority, and to pay them their backwages and other computed benefits in the aggregate sum of P3,548,213.80 plus moral and exemplary damages in the aggregate amount of P615,000.00; and e) Ordering the petitioner Allied Banking Corporation to pay attorney's fees in the amount of P921,290.65. 11 On September 29, 1992, the forty-one (41) respondents who were ordered reinstated filed a "Motion to Issue Partial Writ of Execution." This was granted by the Labor Arbiter. On September 30, 1992, petitioner appealed from the decision of the Labor Arbiter. Respondents, on the other hand, filed, on October 2, 1992, a partial appeal from the aforesaid decision of the Labor Arbiter praying that the decision be modified: (1) to reflect in the computation of back wages the actual basic monthly rates of the individual union members, including the other employees' benefits; (2) to order the payment of actual, moral, and exemplary damages, including attorney's fees to all 163 dismissed employees; (3) to order the reinstatement of all dismissed 163 employees; and (4) to include "Innocence Salvador ". . . as one of the Union officers deemed to have lost their employment status." On October 6, 1992, petitioner filed a motion to quash the writ of execution. This was denied on November 5, 1992. While the Labor Arbiter's September 4, 1992 decision and his September 30, 1992 writ of execution limited his identification of those to be reinstated pending appeal to the forty-one (41) complaints led by Rolando Ocampo, Rowena Rebosa and Alfredo del Pilar, he later on identified all the respondents to be reinstated in his Order, dated November 5, 1992, rationalizing that This alleged ground cited that other than three (3) individual respondents, namely, Rolando Ocampo, Alfredo del Pilar and Rowena Rebosa, the thirty-eight (38) others were not identified, the petitioner-bank cannot feign its back of awareness as to who are the thirty-eight (38) other individual respondents considering that the petitioner itself notified the Supreme Court in its Manifestation/Motion filed on March 7, 1988 that 2. Since October 7, 1986 to date, petitioner has found equivalent positions only for 71 among 112 of those ordered reinstated by this Honorable Court, although petitioner Bank paid their salaries and other monetary benefits continuously from October 1986 to the present without rendering work, to the damage and prejudice of petitioner; 3. Petitioner has exhausted all possible means to look for adequate equivalent positions for the remaining 41 employees but to no avail. . . . The petitioner attached to the said Manifestation/Motion a list of the forty-one (41) employees together with the corresponding separation pay and other benefits they are supposed to receive. And these forty-one (41) employees are, as follows: Daisy Adriano, Luisito Arellano, Teodoro Banaticla, Ruben Beltran, Jose Bufi, Walfrido Calcabin, Roy Casido, Edna Cioco, Rosauro Clerigo, Mary Ann Co, Delia Conde, Judith dela Cruz, Roberta dela Cruz, Carmen delos Santos, Rogelio Edora, Raul Gonzales, Balagtas Hernandez, Gerardo Ilano, Alan de Jesus, Hector Juliano, Teresita Licarte, Tony Manaois, Jaime Manipis, Edgar Marcelo, Rufino Marquez, Edgardo Nicasio, Rolando Ocampo, Irene Ocos, Herson

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Ozarraga, Alfredo del Pilar, Elpidio Pineda, Alfredo Raymundo, Rowena Rebosa, Dexter Sanchez, Romeo Simon, Noel Solis, Evangeline Saulog, Fe Uy, Ruel Velarde, Veronica Villarica, and Mario Marquez. 12 On November 19, 1992, petitioner filed with the NLRC a consolidated petition for injunction docketed as NLRC NCR IC NO. 000316-92. But, before the NLRC could decide on the issue of reinstatement pending appeal, respondents filed a petition for mandamus with us, docketed as G.R. No. 110687, to compel the Chairman of the NLRC to issue a writ of execution as regards the reinstatement aspect of the Labor Arbiter's September 4, 1992 decision. On December 15, 1993, we promulgated a resolution dismissing the aforesaid petition for mandamus. On April 7, 1994, the NLRC issued an Order directing the reinstatement of fortyone (41) respondents pending appeal and at the same time dismissing the bank's petition for injunction. The NLRC upheld the Labor Arbiter's finding that the strikes staged by the employees of the bank on January 3 & 4, 1985 and from February 11 to March 11, 1985 were in violation of the provisions of Article 263 (g) of the Labor Code, as amended, as well as the Assumption Order of December 19, 1984 and as such the striking union members had lost their employment status. However, in spite of its conclusion that the respondents were validly dismissed the NLRC opined that "the 41 . . . respondents earned for themselves the right to be reinstated not only under Article 223 of the Labor Code, as amended by R.A. 6715, on March 2, 1989, but retroactive September 15, 1986, the date the Supreme Court ordered the implementation of the Order of MOLE Minister Sanchez directing the reinstatement of 'all striking employees except those who have accepted separation pay' [as 'only 71 of the 112 affected employees' were reinstated by the Bank (May 4, 1988 Resolution of the Supreme Court in G.R. 71239 and G.R. 75749 p. 7)]. It then remanded to the Labor Arbiter the query of whether or not the subject forty-one (41) individual respondents, who were not reinstated since 1986, can validly be paid back wages from September 1986 up to the time the NLRC promulgated its decision. The dispositive portion of the assailed decision reads as follows: WHEREFORE, the appealed September 4, 1992 Decision insofar as concerns disposition (b) to (e) thereof, is hereby set aside. Our Order of April 7, 1994 is hereby reconsidered and likewise set aside. Instead, the question of whether or not the forty-one (41). Individual Respondents (led by Rolando Ocampo, Rowena Rebosa and Alfredo del Pilar) are entitled to back wages corresponding to the period that they should have been reinstated since 1986 is hereby remanded to the Arbiter of origin pursuant to the earlier quoted guideline of the Supreme Court in its May 4, 1988 resolution. 13 The opposing parties moved for a reconsideration of the said decision, which motions were denied in a Resolution of the NLRC, dated July 8, 1994. Hence, these petitions. The crux of the present controversy is whether or not the striking union members terminated for abandonment of work after failing to obey the return-to-work order of the Secretary of Labor and Employment, should be reinstated with back wages. Respondents contend that the NLRC committed grave abuse of discretion when it ruled that their dismissal is legal considering that mere participation of union members in an illegal strike should not automatically result in their termination from employment. 14 We agree with respondents' contention that mere participation of union members in an illegal strike should not automatically result in their termination from employment. However, the case at bar involves a different issue as a perusal of the records shows that respondents were terminated from employment by reason of their defiance to the return-to-work order of the Secretary of Labor. Respondents staged a strike on January 3 and 4, 1985 or fourteen (14) days after then Labor Minister Ople assumed jurisdiction over the dispute between them and the bank. Thereafter, respondents again staged a strike from February 11 up to March 11, 1985 while their labor dispute with the Bank was still pending before Minister Ople. The provisions of law which govern the effects of defying a return-to-work order are: 1) Article 263 (g) of the Labor Code xxx xxx xxx 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 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 . . . (as amended by Sec. 27, R.A. 6715; emphasis supplied.) 2) Article 264 (a) No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. Any worker whose employment has been terminated as a consequent of an unlawful lockout shall be entitled to reinstatement with full back wages. 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

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for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. In the case of Union of Filipro Employees v. Nestle Philippines, Inc., 15 we ruled that a strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus, illegal, pursuant to Article 264 (a) of the Labor Code. Moreover, the union officers and members who have participated in the said illegal activity, are, as a result, deemed to have lost their employment status. Thus, we held that: UFE completely misses the underlying principle embodied in Art. 263 (g) on the settlement of labor disputes and this is, that assumption and certification orders are executory in character and are to bestrictly complied with by the parties even during the pendency of any petition questioning their validity. 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 actions. . . . xxx xxx xxx One other point that must be underscored is that the return-to-work order is issued pending the determination of the legality or illegality of the strike. It is not correct to say that it may be enforced only if the strike is legal and may be disregarded if the strike is illegal, for the purpose precisely is to maintain the status quo while the determination is being made. Otherwise, the workers who contend that their strike is legal can refuse to return to their work and cause a standstill on the company operations while retaining the positions they refuse to discharge or allow the management to fill. Worse, they will also claim payment for work not done, on the ground that they are still legally employed although actually engaged in the activities inimical to their employer's interest. This is like eating one's cake and having it too, and at the expense of the management. Such an unfair situation surely was not contemplated by our labor laws and cannot be justified under the social justice policy, which is a policy of fairness to both labor and management. Neither can this unseemly arrangement be sustained under the due process clause as the order, if thus interpreted, would be plainly oppressive and arbitrary. In the cases of Sarmiento v. Tuico, 16 and Asian Transmission Corporation v. National Labor Relations Commission, 17 we explained the rationale for this rule: It is also important to emphasize that the return-to-work order not so much confers a right as it imposes a duty; and while as a right it may be waived, it must be discharged as a duty even against the worker's will. 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. That is the real reason such return can be compelled. So imperative is the order in fact that it is not even considered violative of the right against involuntary servitude, as this Court held in Kaisahan Ng Mga Manggagawa sa Kahoy v. Gotamco Sawmills. The worker can of course give up his work, thus severing his ties with the company, if he does not want to obey the order; but the order must be obeyed if he wants to retain his work even if his inclination is to strike. This principle was reiterated in the case of St. Scholastica's College v. Torres, 18 wherein we cited the case of Federation of Free Workers v. Inciong, 19 and held that: A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 264 of the Labor Code as amended. . . . The Union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act. Hence, respondents' failure to immediately comply with the return-to-work order dated, December 16, 1984 and January 6, 1985 cannot be condoned. Respondents also contend that there is nothing on record to prove that they knowingly participated in an illegal strike. 20 Private respondents' contentions are belied by the records as there was an assumption order already issued by the Minister of Labor when they first conducted a strike on January 3 and 4, 1985, and this assumption order was still in effect when they struck continuously from February 11 to March 11, 1995. This knowledge of the assumption order is manifested in their answer dated September 26, 1985, which was summarized in the Decision of the Labor Arbiter dated September 4, 1992, the pertinent portions of which are hereby quoted: On their part, the individual respondents in their answer dated September 26, 1985 denied that the strike on January 3 and 4, 1985 was illegal contending that there was already an amicable settlement pursuant to which the bank agreed to accept back to work all striking employees. Further, the said respondents alleged that the bank in an Order dated January 6, 1985 was directed to accept back all striking employees under the same terms and conditions previous to work stoppage and this order allegedly became final and executory. Regarding the strike on February 11, 1985, the respondents argued that the same is legal for the following alleged reasons, namely: (a) they resorted to such concerted action upon the representation of the union officers that it was legal; (b) said concerted action was resumption of their picketing activities considering that the Order of January 31, 1985 was nothing but a mere reiteration of the position taken by the bank on the deadlocked issues and the Minister unjustly ignored the position of the respondents; (c) the said action was justified in view of alleged acts of the bank amounting to unfair labor practices; and (d) the order of January 31, 1985 of the Minister has not yet become final considering that there was filed by this union a motion for reconsideration on February 11, 1985. The respondents charged as unfair labor practice the act of the petitioner in publishing in metropolitan newspapers the notices requiring the striking employees to return to work under threat of disciplinary action contending that it was a coercive act

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which was tantamount to interference and restraint when the publication adverted to the concerted action on February 11, 1985 as illegal. Furthermore, the respondents argued that even if the strike stage by them was illegal, they did not incur any liability for the following stated reasons, to wit: a) the individual respondents participated in the strike on the strength of representations/assurances made by union officers that the strike was legal; b) they have acted in good faith and merely exercised their constitutional right to strike and engage in concerted action; c) they acted in defense of their political and economic rights which were allegedly ignored by the Minister of Labor; d) they have acted in peaceful and orderly manner during the picketing and they did not commit any illegal or violent act; e) they have faithfully complied with the orders of the Minister of Labor and f) they merely acted in self-defense to repel the continuing acts of unfair labor practices committed by the petitioner's representatives and agents. 21 Furthermore, private respondents contend that a strike is not synonymous with abandonment of work as the employer-employee relationship is not terminated during the duration of the strike but merely suspended. They also cited the cases of Insular Life Assurance Co. Ltd., Employees Association NATU v. The Insular Life Assurance Co. Ltd., 22 and the case of RCPI v. Philippine Communications Electronics & Electricity Worker's Federation , 23 wherein we held that mere failure to report for work after notice to return, does not constitute abandonment nor bar reinstatement. However, private respondents' failed to take into consideration the cases recently decided by this Court which emphasized on the strict adherence to the rule that defiance of the return-to-work order of the Secretary of Labor would constitute a valid ground for dismissal. The respective liabilities of striking union officers and members who failed to immediately comply with the return-to-work order, are clearly spelled out in Article 264 of the Labor Code which provides that any declaration of a strike or lockout after the Secretary of Labor and Employment has assumed jurisdiction over the labor dispute is considered an illegal act. Therefore, any worker or union officer who knowingly participates in a strike defying a return-to-work order may as a result thereof be considered to have lost his employment status. Moreover, as aptly stated by the NLRC in its decision: Abandonment of work as a ground to dismiss under Article 282 (b) of the Labor Code should not be confused with abandonment of work under the law on strike, particularly those as provided in Article 263 (g) and Article 264 (a) of the Labor Code. To rule that [t]o constitute abandonment of position, there must be concurrence of the intention to abandon and some overt act from which it may be inferred that the employee concerned has no more interest in working . . . while available as a defense against dismissals under Article 282 of the Labor Code, cannot, however, be validly invoked in dismissals resulting from a striker's defiance of a DOLE Secretary's assumption order so clearly spelled out in Article 263 (g) of the Labor Code, much less as a defense against the ban on strikes after assumption of jurisdiction by . . . the Minister of Labor and Employment (Article 264 (a), Labor Code). 24 Furthermore, as non-compliance with an assumption or certification order is considered as an illegal act committed in the course of a strike, the Ministry of Labor and Employment (now DOLE) is authorize to impose such sanctions as may be provided for by law which may include the hiring of replacements for workers defying the order. In the case of Jackbilt Concrete Block Company, Inc. v. Norton and Harrison Company, 25 it appeared that in an earlier decision the Supreme Court ordered the reinstatement without back wages of the strikers who staged a strike on the good-faith belief that the Company had committed an unfair labor practice. Some of the strikers reported for work and were reinstated. The rest of the strikers listed in the order either ignored or disobeyed said order. Of the strikers who reported for work, some have either not submitted themselves to medical examination as required and did not report back anymore or after having gone through medical examination, did not report back for work, or after reporting back for work did not continue working anymore and the others were found suffering from disease and unfit for work. Before the Supreme Court, the Company raised in issue the employment status of the strikers who failed to comply with the return-to-work order, contending that they should be declared to have forfeited their right to reinstatement. Sustaining this contention, the Supreme Court said: We are also of the opinion and so hold that the strikers who failed, without proper justification, to report for work assignment despite the issuance of the orders reinstating them to their jobs are deemed to have forfeited their right to reinstatement. Their unexplained failure to request for another period or an extended period within which to comply with the reinstatement orders and report back for work militates against them. In East Asiatic Company Ltd., et al. vs. CIR, et. al., G.R. No. L-29068, August 31, 1971, 40 SCRA 521, this Court had occasion to rule that the failure to report for work when one had the opportunity to do so waived thereby his right to reinstatement. Because of the apparent lack of interest of the strikers concerned as shown by their failure to report for work without justifiable reason with the petitioner herein, We are constrained to declare them to have forfeited their right to reinstatement. In the case at bar, we fully agree with the ruling of the NLRC in declaring that respondents were validly dismissed considering their defiance of the return-towork order issued by the Secretary of Labor. As a consequence of such defiance, they are considered severed from their employment. Apparently, the basis of the portion of NLRC's decision remanding the issue of back wages to the Labor Arbiter, is this Court's Resolution dated May 4, 1988 issued in the cases of Allied Bank Employees Union-NUBE, et al. v. Hon. Blas Ople, et al., G.R. No. 71239 and Allied Banking Corporation v. Hon. Augusto S.Sanchez, et al., G.R. No. 75749. In the said resolution we remanded the aforecited cases to the Department of Labor, the dispositive portion of which reads: Considering the foregoing, the Court RESOLVED to DISMISS the instant petitions and to REMAND them to the Department of Labor and Employment and its pertinent agencies for further proceedings as outlined in this resolution. This

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action is without prejudice to either or both parties filing an appropriate and concise petition with this Court, if they are so minded after the final administrative determination of the issues has been made. 26 Furthermore, a perusal of our Resolution reveals that the issue of whether or not the forty one (41) respondents should be paid back wages from September, 1986 up to the date of the promulgation of the decision, was not raised therein. Only the determination of factual matters, i.e., whether or not the strike was illegal; the roles played by respondents should the strike be declared illegal; issue of representation and the impossibility of reinstating the 41 respondents by bank, we remanded by this Court to the DOLE. This Resolution of ours, as must be noted, was issued when the petition to declare the strike illegal has not yet been resolved. It was only resolved last September 4, 1992, when the NLRC issued a Decision declaring the strike illegal and upholding the dismissal of the respondents. The reinstatement ordered by then Minister Sanchez, in his August 29, 1986 order, was only provisional and subject to the outcome of the petition to declare the strike illegal, viz: In his order dated August 29, 1986, Minister Sanchez ordered reinstatement pending the final outcome of the petition initiated by the Bank to declare the strike illegal. The reinstatement is, therefore, provisional. A permanent reinstatement will depend on the legality or illegality of the strike . As a consequence of the declaration of the illegality of the strike and the upholding of the dismissal of respondents in the NLRC Decision, the factual matters mentioned in our Resolution dated May 4, 1988 have already become moot and academic. Moreover, an award of back wages is incompatible with the findings of the NLRC upholding the dismissal of respondents. The NLRC's disposition of the case remanding to the Labor Arbiter the issue of reinstating respondents and the computation of their back wages is an illogical consequence of respondents' valid dismissal from their employment. Such disposition is inconsistent with our pronouncement in the cases aforecited and should be struck down as having been issued with grave abuse of discretion. Respondents also contend that the NLRC should have adopted a liberal approach favoring labor which this Court has upheld in its decisions and that the employers are urged to be more compassionate as to their workers' needs. 27 We agree with respondent's contention that this Court should view with compassion the plight of the workers. However, this sense of compassion should be coupled with a sense of fairness and justice to the parties concerned. Hence, while social justice has an inclination to give protective to the working class, the caused of the labor sector is not upheld at all times as the employer has also a right entitled to respect in the interest of simple fair play. 28 Thus, in the case of St. Scholastica's College v. Torres, 29 we stated that: The sympathy of the Court which, as a rule, is on the side of the laboring classes (Reliance Surety and Insurance Co., Inc. v. NLRC), cannot be extended to the striking union officers and members in the instant petition. There was willful disobedience not only to one but two return-to-work orders. Considering that the UNION consisted mainly of teachers, who are supposed to be well-lettered and well-informed, the court cannot overlook the plain arrogance and pride displayed by the UNION in this labor dispute. Despite containing threats of disciplinary action against some union officers and members who actively participated in the strike, the letter dated 9 November 1990 sent by the COLLEGE enjoining the union officers and members to return to work under the same terms and conditions prior to the strike. Yet, the UNION decided to ignore the same. The COLLEGE, correspondingly, had every right to terminate the services of those who chose to disregard the return-to-work orders issued by respondent SECRETARY in order to protect the interests of its students who form part of the youth of the land. WHEREFORE, the NLRC Decision of May 20, 1994 is AFFIRMED with respect to the finding that private respondents were validly dismissed. However, as to its disposition that the issue of reinstatement and computation of back wages be remanded to the Labor Arbiter, the same, being inconsistent with the finding of valid dismissal, is ANNULLED and SET ASIDE. SO ORDERED. ________________________ G.R. No. 100158 June 2, 1992 ST. SCHOLASTICA'S COLLEGE, petitioner, vs. HON. RUBEN TORRES, in his capacity as SECRETARY OF LABOR AND EMPLOYMENT, and SAMAHANG NG MANGGAGAWANG PANG-EDUKASYON SA STA. ESKOLASTIKA-NAFTEU,respondents. BELLOSILLO, J.: The principal issue to be resolved in this recourse is whether striking union members terminated for abandonment of work after failing to comply with return-to-work orders of the Secretary of Labor and Employment (SECRETARY, for brevity) should by law be reinstated. On 20 July 1990, petitioner St. Scholastica's College (COLLEGE, for brevity) and private respondent Samahan ng Manggagawang Pang-Edukasyon sa Sta. Eskolastika-NAFTEU (UNION, for brevity) initiated negotiations for a first-ever collective bargaining agreement. A deadlock in the negotiations prompted the UNION to file on 4 October 1990 a Notice of Strike with the Department of Labor and Employment (DEPARTMENT, for brevity), docketed as NCMB-NCR-NS-10826. On 5 November 1990, the UNION declared a strike which paralyzed the operations of the COLLEGE. Affecting as it did the interest of the students, public respondent SECRETARY immediately assumed jurisdiction over the labor dispute and issued on the same day, 5 November 1990, a return-to-work order. The following day, 6 November 1990, instead of returning to work, the UNION filed a motion for reconsideration of the return-to-work order questioning inter alia the assumption of jurisdiction by the SECRETARY over the labor dispute. On 9 November 1990, the COLLEGE sent individual letters to the striking employees enjoining them to return to work not later than 8:00 o'clock A.M. of 12 November 1990 and, at the same time, giving notice to some twenty-three

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(23) workers that their return would be without prejudice to the filing of appropriate charges against them. In response, the UNION presented a list of (6) demands to the COLLEGE in a dialogue conducted on 11 November 1990. The most important of these demands was the unconditional acceptance back to work of the striking employees. But these were flatly rejected. Likewise, on 9 November 1990, respondent SECRETARY denied reconsideration of his return-to-work order and sternly warned the striking employees to comply with its terms. On 12 November 1990, the UNION received the Order. Thereafter, particularly on 14 and 15 November 1990, the parties held conciliation meetings before the National Conciliation and Mediation Board where the UNION pruned down its demands to three (3), viz.: that striking employees be reinstated under the same terms and conditions before the strike; that no retaliatory or disciplinary action be taken against them; and, that CBA negotiations be continued. However, these efforts proved futile as the COLLEGE remained steadfast in its position that any return-to-work offer should be unconditional. On 16 November 1990, the COLLEGE manifested to respondent SECRETARY that the UNION continued to defy his return-to-work order of 5 November 1990 so that "appropriate steps under the said circumstances" may be undertaken by him. 1 On 23 November 1990, the COLLEGE mailed individual notices of termination to the striking employees, which were received on 26 November 1990, or later. The UNION officers and members then tried to return to work but were no longer accepted by the COLLEGE. On 5 December 1990, a Complaint for Illegal Strike was filed against the UNION, its officers and several of its members before the National Labor Relations Commission (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, citing "selective acceptance of returning strikers" by the COLLEGE. It also sought dismissal of the complaint. Since then, no further hearings were conducted. Respondent SECRETARY required the parties to submit their respective position papers. The COLLEGE prayed that respondent SECRETARY uphold the dismissal of the employees who defied his return-to-work order. On 12 April 1991, respondent SECRETARY issued the assailed Order which, inter alia, directed the reinstatement of striking UNION members, premised on his finding that no violent or otherwise illegal act accompanied the conduct of the strike and that a fledgling UNION like private respondent was "naturally expected to exhibit unbridled if inexperienced enthusiasm, in asserting its existence". 2 Nevertheless, the aforesaid Order held UNION officers responsible for the violation of the return-to-work orders of 5 and 9 November 1990 and, correspondingly, sustained their termination. Both parties moved for partial reconsideration of the Order, with petitioner COLLEGE questioning the wisdom of the reinstatement of striking UNION members, and private respondent UNION, the dismissal of its officers. On 31 May 1991, in a Resolution, respondent SECRETARY denied both motions. Hence, this Petition for Certiorari, with Prayer for the Issuance of a Temporary Restraining Order. On 26 June 1991, We restrained the SECRETARY from enforcing his assailed Orders insofar as they directed the reinstatement of the striking workers previously terminated. Petitioner questions the assumption by respondent SECRETARY of jurisdiction to decide on termination disputes, maintaining that such jurisdiction is vested instead in the Labor Arbiter pursuant to Art. 217 of the Labor Code, thus Art. 217. Jurisdiction of Labor Arbiters and the Commission. (a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, the following cases involving all workers, whether agricultural or nonagricultural: . . . 2. Termination disputes . . . 5. Cases arising from any violation of Article 264 of this Code, including questions on the legality of strikes and lockouts . . . In support of its position, petitioner invokes Our ruling in PAL v. Secretary of Labor and Employment 3 where We held: The labor Secretary exceeded his jurisdiction when he restrained PAL from taking disciplinary measures against its guilty employees, for, under Art. 263 of the Labor Code, all that the Secretary may enjoin is the holding of the strike but not the company's right to take action against union officers who participated in the illegal strike and committed illegal acts. Petitioner further contends that following the doctrine laid down in Sarmiento v. Tuico 4 and Union of Filipro Employees v. Nestle Philippines, Inc., 5 workers who refuse to obey a return-to-work order are not entitled to be paid for work not done, or to reinstatement to the positions they have abandoned of their refusal to return thereto as ordered. Taking a contrary stand, private respondent UNION pleads for reinstatement of its dismissed officers considering that the act of the UNION in continuing with its picket was never characterized as a "brazen disregard of successive legal orders", which was readily apparent in Union Filipro Employees v. Nestle Philippines, Inc., supra, nor was it a willful refusal to return to work, which was the basis of the ruling in Sarmiento v. Tuico, supra. The failure of UNION officers and members to immediately comply with the return-to-work orders was not because they wanted to defy said orders; rather, they held the view that academic institutions were not industries indispensable to the national interest. When respondent SECRETARY denied their motion for reconsideration, however, the UNION intimated that efforts were immediately initiated to fashion out a reasonable return-to-work agreement with the COLLEGE, albeit, if failed. The issue on whether respondent SECRETARY has the power to assume jurisdiction over a labor dispute and its incidental controversies, causing or likely to cause a strike or lockout in an industry indispensable to the national interest, was already settled in International Pharmaceuticals, Inc. v. Secretary of Labor and Employment. 6 Therein, We ruled that:

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. . . [T]he Secretary was explicitly granted by Article 263 (g) of the Labor Code the authority to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, and decide the same accordingly. Necessarily, this authority to assume jurisdiction over the said labor dispute must include and extend to all questions and include and extend to all questions and controversies arising therefrom, including cases over which the Labor Arbiter has exclusive jurisdiction. And rightly so, for, as found in the aforesaid case, Article 217 of the Labor Code did contemplate of exceptions thereto where the SECRETARY is authorized to assume jurisdiction over a labor dispute otherwise belonging exclusively to the Labor Arbiter. This is readily evident from its opening proviso reading "(e)xcept as otherwise provided under this Code . . . Previously, We held that Article 263 (g) of the Labor Code was broad enough to give the Secretary of Labor and Employment the power to take jurisdiction over an issue involving unfair labor practice. 7 At first glance, the rulings above stated seem to run counter to that of PAL v. Secretary of Labor and Employment, supra, which was cited by petitioner. But the conflict is only apparent, not real. To recall, We ruled in the latter case that the jurisdiction of the Secretary of Labor and Employment in assumption and/or certification cases is limited to the issues that are involved in the disputes or to those that are submitted to him for resolution. The seeming difference is, however, reconcilable. Since the matter on the legality or illegality of the strike was never submitted to him for resolution, he was thus found to have exceeded his jurisdiction when he restrained the employer from taking disciplinary action against employees who staged an illegal strike. Before the Secretary of Labor and Employment may take cognizance of an issue which is merely incidental to the labor dispute, therefore, the same must be involved in the labor disputed itself, or otherwise submitted to him for resolution. If it was not, as was the case in PAL v. Secretary or Labor and Employment, supra, and he nevertheless acted on it, that assumption of jurisdiction is tantamount to a grave abuse of discretion. Otherwise, the ruling in International Pharmaceuticals, Inc. v. Secretary of Labor and Employment, supra, will apply. The submission of an incidental issue of a labor dispute, in assumption and/or certification cases, to the Secretary of Labor and Employment for his resolution is thus one of the instances referred to whereby the latter may exercise concurrent jurisdiction together with the Labor Arbiters. In the instant petition, the COLLEGE in its Manifestation, dated 16 November 1990, asked the "Secretary of Labor to take the appropriate steps under the said circumstances." It likewise prayed in its position paper that respondent SECRETARY uphold its termination of the striking employees. Upon the other hand, the UNION questioned the termination of its officers and members before respondent SECRETARY by moving for the enforcement of the return-to-work orders. There is no dispute then that the issue on the legality of the termination of striking employees was properly submitted to respondent SECRETARY for resolution. Such an interpretation will be in consonance with the intention of our labor authorities to provide workers immediate access to their rights and benefits without being inconvenienced by the arbitration and litigation process that prove to be not only nerve-wracking, but financially burdensome in the long run. Social justice legislation, to be truly meaningful and rewarding to our workers, must not be hampered in its application by long-winded arbitration and litigation. Rights must be asserted and benefits received with the least inconvenience. For, labor laws are meant to promote, not defeat, social justice (Maternity Children's Hospital v. Hon. Secretary of Labor ). 8 After all, Art. 4 of the Labor Code does state that all doubts in the implementation and interpretation of its provisions, including its implementing rules and regulations, shall be resolved in favor of labor. We now come to the more pivotal question of whether striking union members, terminated for abandonment of work after failing to comply strictly with a returnto-work order, should be reinstated. We quote hereunder the pertinent provisions of law which govern the effects of defying a return-to-work order: 1. Article 263 (g) of the Labor Code Art. 263. Strikes, picketing, and lockouts. . . . (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 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 . . . (as amended by Sec. 27, R.A. 6715; emphasis supplied). 2. Article 264, same Labor Code Art. 264. Prohibited activities. (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout . . . (emphasis supplied). Any worker whose employment has been terminated as consequence of an unlawful lockout shall be entitled to reinstatement with full back wages. Any

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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 . . . (emphasis supplied). 3. Section 6, Rule IX, of the New Rules of Procedure of the NLRC (which took effect on 31 August 1990) Sec. 6. Effects of Defiance. Non-compliance with the certification order of the Secretary of Labor and Employment or a return to work order of the Commission shall be considered an illegal act committed in the course of the strike or lockout and shall authorize the Secretary of Labor and Employment or the Commission, as the case may be, to enforce the same under pain or loss of employment status or entitlement to full employment benefits from the locking-out employer or backwages, damages and/or other positive and/or affirmative reliefs, even to criminal prosecution against the liable parties . . . (emphasis supplied). Private respondent UNION maintains that the reason they failed to immediately comply with the return-to-work order of 5 November 1990 was because they questioned the assumption of jurisdiction of respondent SECRETARY. They were of the impression that being an academic institution, the school could not be considered an industry indispensable to national interest, and that pending resolution of the issue, they were under no obligation to immediately return to work. This position of the UNION is simply flawed. Article 263 (g) of the Labor Code provides that if a strike has already taken place at the time of assumption, "all striking . . . employees shall immediately return to work." This means that by its very terms, a return-to-work order is immediately effective and executory notwithstanding the filing of a motion for reconsideration (University of Sto. Tomas v. NLRC). 9 It must be strictly complied with even during the pendency of any petition questioning its validity (Union of Filipro Employees v. Nestle Philippines, Inc., supra). After all, the assumption and/or certification order is issued in the exercise of respondent SECRETARY's compulsive power of arbitration and, until set aside, must therefore be immediately complied with. The rationale for this rule is explained in University of Sto. Tomas v. NLRC, supra, citing Philippine Air Lines Employees Association v. Philippine Air Lines, Inc., 10 thus To say that its (return-to-work order) effectivity must wait affirmance in 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 is concerned. Moreover, the assumption of jurisdiction by the Secretary of Labor and Employment over labor disputes involving academic institutions was already upheld in Philippine School of Business Administration v. Noriel 11 where We ruled thus: There is no doubt that the on-going labor dispute at the school adversely affects the national interest. The school is a duly registered educational institution of higher learning with more or less 9,000 students. The on-going work stoppage at the school unduly prejudices the students and will entail great loss in terms of time, effort and money to all concerned. More important, it is not amiss to mention that the school is engaged in the promotion of the physical, intellectual and emotional well-being of the country's youth. Respondent UNION's failure to immediately comply with the return-to-work order of 5 November 1990, therefore, cannot be condoned. The respective liabilities of striking union officers and members who failed to immediately comply with the return-to-work order is outlined in Art. 264 of the Labor Code which provides that any declaration of a strike or lockout after the Secretary of Labor and Employment has assumed jurisdiction over the labor dispute is considered an illegal. act. Any worker or union officer who knowingly participates in a strike defying a return-to-work order may, consequently, "be declared to have lost his employment status." Section 6 Rule IX, of the New Rules of Procedure of the NLRC, which provides the penalties for defying a certification order of the Secretary of Labor or a return-towork order of the Commission, also reiterates the same penalty. It specifically states that non-compliance with the aforesaid orders, which is considered an illegal act, "shall authorize the Secretary of Labor and Employment or the Commission . . . to enforce the same under pain of loss of employment status." Under the Labor Code, assumption and/or certification orders are similarly treated. Thus, we held in Sarmiento v. Tuico, supra, that by insisting on staging the restrained strike and defiantly picketing the company premises to prevent the resumption of operations, the strikers have forfeited their right to be readmitted, having abandoned their positions, and so could be validly replaced. We recently reiterated this stance in Federation of Free Workers v. Inciong, 12 wherein we cited Union of Filipro Employees v. Nestle Philippines, Inc., supra, thus A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 264 of the Labor Code as amended . . . The union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act. Despite knowledge of the ruling in Sarmiento v. Tuico, supra, records of the case reveal that private respondent UNION opted to defy not only the return-to-work order of 5 November 1990 but also that of 9 November 1990. While they claim that after receiving copy of the Order of 9 November 1990 initiatives were immediately undertaken to fashion out a return-to-work agreement with management, still, the unrebutted evidence remains that the striking union officers and members tried to return to work only eleven (11) days after the conciliation meetings ended in failure, or twenty (20) days after they received copy of the first return-to-work order on 5 November 1990.

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The sympathy of the Court which, as a rule, is on the side of the laboring classes (Reliance Surety & Insurance Co., Inc. v. NLRC), 13 cannot be extended to the striking union officers and members in the instant petition. There was willful disobedience not only to one but two return-to-work orders. Considering that the UNION consisted mainly of teachers, who are supposed to be well-lettered and well-informed, the Court cannot overlook the plain arrogance and pride displayed by the UNION in this labor dispute. Despite containing threats of disciplinary action against some union officers and members who actively participated in the strike, the letter dated 9 November 1990 sent by the COLLEGE enjoining the union officers and members to return to work on 12 November 1990 presented the workers an opportunity to return to work under the same terms and conditions or prior to the strike. Yet, the UNION decided to ignore the same. The COLLEGE, correspondingly, had every right to terminate the services of those who chose to disregard the return-to-work orders issued by respondent SECRETARY in order to protect the interests of its students who form part of the youth of the land. Lastly, the UNION officers and members also argue that the doctrine laid down in Sarmiento v. Tuico, supra, and Union of Filipro Employees v. Nestle, Philippines, Inc., supra, cannot be made applicable to them because in the latter two cases, workers defied the return-to-work orders for more than five (5) months. Their defiance of the return-to-work order, it is said, did not last more than a month. Again, this line of argument must be rejected. It is clear from the provisions above quoted that from the moment a worker defies a return-to-work order, he is deemed to have abandoned his job. It is already in itself knowingly participating in an illegal act. Otherwise, the worker will just simply refuse to return to his work and cause a standstill in the company operations while retaining the positions they refuse to discharge or allow the management to fill (Sarmiento v. Tuico, supra). Suffice it to say, in Federation of Free Workers v. Inciong, supra, the workers were terminated from work after defying the returnto-work order for only nine (9) days. It is indeed inconceivable that an employee, despite a return-to-work order, will be allowed in the interim to stand akimbo and wait until five (5) orders shall have been issued for their return before they report back to work. This is absurd. In fine, respondent SECRETARY gravely abused his discretion when he ordered the reinstatement of striking union members who refused to report back to work after he issued two (2) return-to-work orders, which in itself is knowingly participating in an illegal act. The Order in question is, certainly, contrary to existing law and jurisprudence. WHEREFORE, the Petition for Certiorari is hereby GRANTED. The Order of 12 April 1991 and the Resolution 31 May 1991 both issued by respondent Secretary of Labor and Employment are SET ASIDE insofar as they order the reinstatement of striking union members terminated by petitioner, and the temporary restraining order We issued on June 26, 1991, is made permanent. No costs. SO ORDERED [G.R. No. 178409, June 08 : 2011] YOLITO FADRIQUELAN, ARTURO EGUNA, ARMANDO MALALUAN, DANILO ALONSO, ROMULO DIMAANO, ROEL MAYUGA, WILFREDO RIZALDO, ROMEO SUICO, DOMINGO ESCAMILLAS AND DOMINGO BAUTRO, PETITIONERS, VS. MONTEREY FOODS CORPORATION, RESPONDENT. [G.R. NO. 178434] MONTEREY FOODS CORPORATION, PETITIONER, VS. BUKLURAN NG MGA MANGGAGAWA SA MONTEREY-ILAW AT BUKLOD NG MANGGAGAWA, YOLITO FADRIQUELAN, CARLITO ABACAN, ARTURO EGUNA, DANILO ROLLE, ALBERTO CASTILLO, ARMANDO MALALUAN, DANILO ALFONSO, RUBEN ALVAREZ, ROMULO DIMAANO, ROEL MAYUGA, JUANITO TENORIO, WILFREDO RIZALDO, JOHN ASOTIGUE, NEMESIO AGTAY, ROMEO SUICO, DOMINGO ESCAMILLAS AND DOMINGO BAUTRO, RESPONDENTS. DECISION ABAD, J.: These cases are about the need to clearly identify, for establishing liability, the union officers who took part in the illegal slowdown strike after the Department of Labor and Employment (DOLE) Secretary assumed jurisdiction over the labor dispute. The Facts and the Case On April 30, 2002 the three-year collective bargaining agreement or CBA between the union Bukluran ng Manggagawa sa Monterey-Ilaw at Buklod ng Manggagawa (the union) and Monterey Foods Corporation (the company) expired. On March 28, 2003 after the negotiation for a new CBA reached a deadlock, the union filed a notice of strike with the National Conciliation and Mediation Board (NCMB). To head off the strike, on April 30, 2003 the company filed with the DOLE a petition for assumption of jurisdiction over the dispute in view of its dire effects on the meat industry. In an Order dated May 12, 2003, the DOLE Secretary assumed jurisdiction over the dispute and enjoined the union from holding any strike. It also directed the union and the company to desist from taking any action that may aggravate the situation. On May 21, 2003 the union filed a second notice of strike before the NCMB on the alleged ground that the company committed unfair labor practices. On June 10, 2003 the company sent notices to the union officers, charging them with intentional acts of slowdown. Six days later or on June 16 the company sent new notices to the union officers, informing them of their termination from work for defying the DOLE Secretary's assumption order.

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the developments in the CBA negotiation, not protest demonstrations over it. But as the CA correctly observed, if the meetings had really been for the stated reason, why did the union officers and members from separate company farms choose to start and end their meetings at the same time and on the same day? And if they did not intend a slowdown, why did they not hold their meetings after work. There is no allegation that the company prevented the union from holding meetings after working hours. Second. A distinction exists, however, between the ordinary workers' liability for illegal strike and that of the union officers who participated in it. The ordinary worker cannot be terminated for merely participating in the strike. There must be proof that he committedillegal acts during its conduct. On the other hand, a union officer can be terminated upon mere proof that he knowingly participated in the illegal strike.[2] Still, the participating union officers have to be properly identified. [3] The CA held that the company illegally terminated union officers Ruben Alvarez, John Asotigue, Alberto Castillo, Nemesio Agtay, Carlito Abacan, Danilo Rolle, and Juanito Tenorio, there being no substantial evidence that would connect them to the slowdowns. The CA said that their part in the same could not be established with certainty. But, although the witnesses did not say that Asotigue, Alvarez, and Rolle took part in the work slowdown, these officers gave no credible excuse for being absent from their respective working areas during the slowdown. Tenorio allegedly took a break and never went back to work. He claimed that he had to attend to an emergency but did not elaborate on the nature of such emergency. In Abacan's case, however, he explained that he was not feeling well on May 26, 2003 and so he decided to take a two-hour rest from work. This claim of Abacan is consistent with the report[4] that only one officer (Tenorio) was involved in the slowdown at the Calamias farm. At the Quilo farm, the farm supervisor did not include Castillo in the list of employees who failed to report for work on May 26, 2003.[5] In Agtay's case, the evidence is that he was on his rest day. There is no proof that the union's president, Yolito Fadriquelan, did not show up for work during the slowdowns. The CA upheld his dismissal, relying solely on a security guard's report that the company submitted as evidence. But, notably, that report actually referred to a Rolly Fadrequellan, another employee who allegedly took part in the Lipa farm slowdown. Besides, Yolito Fadriquelan was then assigned at the General Trias farm in Cavite, not at the Lipa farm. In fact, as shown in the sworn statements[6] of the Cavite farm employees, Fadriquelan even directed them not to do anything which might aggravate the situation. This clearly shows that his dismissal was mainly based on his being the union president. The Court sustains the validity of the termination of the rest of the union

On June 23, 2003, acting on motion of the company, the DOLE Secretary included the union's second notice of strike in his earlier assumption order. But, on the same day, the union filed a third notice of strike based on allegations that the company had engaged in union busting and illegal dismissal of union officers. On July 7, 2003 the company filed a petition for certification of the labor dispute to the National Labor Relations Commission (NLRC) for compulsory arbitration but the DOLE Secretary denied the motion. He, however, subsumed the third notice of strike under the first and second notices. On November 20, 2003 the DOLE rendered a decision that, among other things, upheld the company's termination of the 17 union officers. The union and its officers appealed the decision to the Court of Appeals (CA). On May 29, 2006 the CA rendered a decision, upholding the validity of the company's termination of 10 union officers but declaring illegal that of the other seven. Both parties sought recourse to this Court, the union in G.R. 178409 and the company in G.R. 178434. The Issues Presented The issues these cases present are: 1. Whether or not the CA erred in holding that slowdowns actually transpired at the company's farms; and 2. Whether or not the CA erred in holding that union officers committed illegal acts that warranted their dismissal from work. The Rulings of the Court First. The law is explicit: no strike shall be declared after the Secretary of Labor has assumed jurisdiction over a labor dispute. A strike conducted after such assumption is illegal and any union officer who knowingly participates in the same may be declared as having lost his employment. [1]Here, what is involved is a slowdown strike. Unlike other forms of strike, the employees involved in a slowdown do not walk out of their jobs to hurt the company. They need only to stop work or reduce the rate of their work while generally remaining in their assigned post. The Court finds that the union officers and members in this case held a slowdown strike at the company's farms despite the fact that the DOLE Secretary had on May 12, 2003 already assumed jurisdiction over their labor dispute. The evidence sufficiently shows that union officers and members simultaneously stopped work at the company's Batangas and Cavite farms at 7:00 a.m. on May 26, 2003. The union of course argues that it merely held assemblies to inform members of

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officers. The identity and participations of Arturo Eguna,[7] Armando Malaluan, [8] Danilo Alonso,[9] Romulo Dimaano,[10] Roel Mayuga,[11] Wilfredo Rizaldo, [12] Romeo Suico,[13] Domingo Escamillas,[14] and Domingo Bautro[15]in the slowdowns were properly established. These officers simply refused to work or they abandoned their work to join union assemblies. In termination cases, the dismissed employee is not required to prove his innocence of the charges against him. The burden of proof rests upon the employer to show that the employee's dismissal was for just cause. The employer's failure to do so means that the dismissal was not justified. [16] Here, the company failed to show that all 17 union officers deserved to be dismissed. Ordinarily, the illegally dismissed employees are entitled to two reliefs: reinstatement and backwages. Still, the Court has held that the grant of separation pay, instead of reinstatement, may be proper especially when as in this case such reinstatement is no longer practical or will be for the best interest of the parties.[17] But they shall likewise be entitled to attorney's fees equivalent to 10% of the total monetary award for having been compelled to litigate in order to protect their interests.[18] WHEREFORE,the Court MODIFIES the decision of the Court of Appealsin CAG.R. SP 82526,DECLARES Monterey Foods Corporation's dismissal of Alberto Castillo, Nemesio Agtay, Carlito Abacan, and Yolito Fadriquelan illegal, and ORDERS payment of their separation pay equivalent to one month salary for every year of service up to the date of their termination. The Court also ORDERSthe company to pay 10% attorney's fees as well as interest of 6% per annum on the due amounts from the time of their termination and 12% per annum from the time this decision becomes final and executory until such monetary awards are paid. SO ORDERED. _______________ [G.R. Nos. 88710-13 : December 19, 1990.] 192 SCRA 396 UNION OF FILIPRO EMPLOYEES (UFE), vs. NESTL PHILIPPINES, INC., NATIONAL LABOR RELATIONS This petition assails the decision of the NLRC, dated November 2, 1988 on the consolidated appeals of petitioners, the dispositive portion of which provides as follows: "1. In NLRC Case No. NCR-12-4007-85 and NLRC Case No. NCR-1-295-86 a. Declaring the strike illegal; b. Declaring the following respondent union officers, namely; M.L. Sarmiento, B.M. Altarejos, R.D. Paglinawan, C.G. Nuqui, C.Y. Sazon, R. Armas, E. Abella, A.A. Caete, A.B. Mira, P.C. Caringal, E. Leonardo E.C. Nuez, P.D. San Jose, E. Villena A. Ricafrente, M. Lantin, A. Montojo, R. Monsud, R. Diaz, R. Urgelles, C. San Jose, E. Bunyi, N. Centeno, R. Gacutan, G. de Borja, N. Nipales, E. San Pedro, C. Ponce, J. Castro, R. Beo, E. Quino, M. Roxas, R. Arandela, W. Ramirez, I. Natividad, S. Pampang, D. Canlobo, R. Calong-Calong, G. Noble, E. Sayao, C. Cenido, P. Mijares, P. Quitlong, A. Avelino, L. Payabyab, I. Rieza, C. Pre, D. Belarmino, to have lost their employment status; c. Ordering the reinstatement of the following respondents-appellants: Juanito Capili, Carlo Medina, Rodrigo Lucas, Adoho Castillo, Jr., Venusito Solis, Ricardo Arevalo, Quezon G. Mateo, Jr., Dionisio Completo, Felix Esguerra, Manuel dela Fuente and Reymundo Almenanza, to their former or equivalent positions without loss of seniority rights but without backwages; d. Declaring the union (UFE) guilty of unfair labor practice; and e. Dismissing the union complaint for unfair labor practice.- nad 2. In RAB-X-2-0047-86, the decision sought to be set aside is AFFIRMED and the individual respondents-appellants namely: Roy Baconguis, Jerome T. Fiel, Efren P. Dinsay, Anastacio G. Caballero, Susan E. Berro, Jose T. Isidto, Wilson C. Barros, Rogelio E. Raiz, Manuel A. Lavin, Cipriano P. Lupeba are hereby declared to have lost their employment status;. 3. In NLRC-00-09-0385-87, the challenged decision is likewise AFFIRMED, except as it affects Cesar S. Cruz, who is ordered reinstated to his former or equivalent position without backwages." (pp. 417-418, Rollo) and the resolution dated March 7, 1989, quoted as follows: "NLRC CASE NO. NCR-12-4007-85 entitled Union of Filipro Employees (UFE), Petitioner-Appellants, versus, Filipro, Inc., et al., Respondents-Appellees, NLRC CASE NO. NCR-1-295-86 entitled Nestle Phils., Inc., Petitioner-Appellee, versus, Union of Filipro Employees, et al., Respondents-Appellants, NLRC CASE NO. RABX-2-0047-86 entitled Nestle Phils., Inc., Petitioner-Appellee, versus, Cagayan de Oro Filipro Workers Union-WATU, et al., Respondents-Appellants, NCR-00-090385-87 entitled Union of Filipro Employees (UFE) and its officers, ComplainantsAppellants, versus, Nestle Phils., et al., Respondents-Appellees. The Commission sitting en banc, after deliberation, resolved to rectify par. 3 of the dispositive portion of our November 2, 1988 resolution by ordering the reinstatement of Quezon G. Mateo, Jr. and Dionisio Completo to their former or equivalent position without backwages and to deny the motion for reconsideration filed by appellants UFE and its Officials adversely affected by said resolution." (p. 429, Rollo) In a lengthy and voluminous petition, dwelling largely on facts, petitioner Union of Filipro Employees and 70 union officers and a member (henceforth "UFE") maintain that public respondent NLRC had acted with grave abuse of discretion in its affirmance of the decisions of the Labor Arbiters a quo, declaring illegal the strikes staged by UFE. Respondent NLRC premised its decision on the following sets of facts: 1. In NCR 12-4007-85 and NCR 1-295-86: UFE filed a notice of strike on November 14, 1985, (BLR-NS-11-344-85) with the Bureau of Labor Relations against Filipro (now Nestle Philippines, Inc., ["Nestle"]). On December 4, 1988, UFE filed a complaint for Unfair Labor Practice (ULP) against Nestle and its officials for violation of the Labor Code (Art. 94) on

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Holiday Pay, non-implementation of the CBA provisions (Labor Management Corporation scheme), Financial Assistance and other unfair labor practice (p. 381, Rollo).:- nad Acting on Nestle's petition seeking assumption of jurisdiction over the labor dispute or its certification to the NLRC for compulsory arbitration, then Minister of Labor and Employment Blas F. Ople assumed jurisdiction over the dispute and issued the following order on December 11, 1985: "WHEREFORE, this Office hereby assumes jurisdiction over the labor dispute at Filipino, Inc. pursuant to Article 264(g) of the Labor Code of the Philippines, as amended. In lime with this assumption a strike, lockout, or any other form of concerted action such as slowdowns, sitdowns, noise barrages during office hours, which tend to disrupt company operations, are strictly enjoined. Let a copy of this Order be published in three (3) conspicuous places inside company premises for strict compliance of all concerned." (p. 381-382, Rollo) On December 20, 1985, UFE filed a petition for Certiorari with prayer for issuance of temporary restraining order, with this Court (G.R. No. 73129) assailing the assumption of jurisdiction by the Minister. Notwithstanding the automatic injunction against any concerted activity, and an absence of a restraining order, the union members, at the instigation of its leaders, and in clear defiance of Minister Ople's Order of December 11, 1986, staged a strike and continued to man picket lines at the Makati Administrative Office and all of Nestle's factories and warehouses at Alabang, Muntinlupa, Cabuyao, Laguna, and Cagayan de Oro City. Likewise, the union officers and members distributed leaflets to employees and passersby advocating a boycott of company products (p. 383, Rollo). On January 23, 1986, Nestle filed a petition to declare the strike illegal (NCR-1295-86) premised on violation of the CBA provisions on "no strike/no lockout" clause and the grievance machinery provisions on settlement of disputes. On January 30, 1986, then Labor Minister Ople issued another Order, with this disposition: "WHEREFORE, in line with the Order of December 11, 1985, this Office hereby orders all the striking workers to report for work and the company to accept them under the same terms and conditions prevailing before the work stoppage within forty eight (48) hours from notice of this Order. The Director of Labor Relations is designated to immediately conduct appropriate hearings and meetings and submit his recommendations to enable this Office to decide the issues within thirty (30) days." (p. 383, Rollo) Despite receipt of the second order dated January 30, 1986, and knowledge of a notice caused to be published by Nestle in the Bulletin on February 1, 1986, advising all workers to report to work not later than February 3, 1986, the officers and members of UFE continued with the strike. On February 4, 1986, the Minister B. Ople denied their motion for reconsideration of the return-to-work order portion as follows: "WHEREFORE, the motion for reconsideration is hereby denied and no further motion of similar nature shall be entertained.: nad "The parties are further enjoined from committing acts that will disrupt the peaceful and productive relations between the parties while the dispute is under arbitration as well as acts considered illegal by law for the orderly implementation of this Order like acts of coercion, harassment, blocking of public thoroughfares, ingress and egress to company premises for lawful purposes or those undertaken without regard to the rights of the other party. "Police and military authorities are requested to assist in the proper and effective implementation of this Order." (p. 384, Rollo) UFE defied the Minister and continued with their strike. Nestle filed criminal charges against those involved. On March 13, 1986, the new Minister of Labor and Employment, Augusto B. Sanchez, issued a Resolution, the relevant portions of which stated thus: "This Office hereby enjoins all striking workers to return-to-work immediately and management to accept them under the same terms and conditions prevailing previous to the work stoppage except as qualified in this resolution. The management of Nestle Philippines is further directed to grant a special assistance as suggested by this Ministry in an order dated 30 January 1986 to all striking employees covered by the bargaining units at Makati, Alabang, Cabuyao and Cagayan de Oro City in an amount equivalent to their weighted average monthly basic salary, plus the cash conversion value of the vacation leave credits for the year 1986, payable not later than five (5) days from the date of the actual return to work by the striking workers." (p. 385, Rollo) On March 17, 1986, the strikers returned to work. On March 31, 1986, We granted UFE's Motion to Withdraw its Petition for Certiorari(G.R. No. 73129) (p. 385, Rollo) On April 23, 1986, Minister Sanchez rendered a Decision, the dispositive portion of which reads: WHEREFORE, the Union charge for unfair labor practices is hereby dismissed for want of merit. Nestle Philippines is hereby directed to make good its promise to grant an additional benefit in the form of bonus equivalent to one (1) month's gross compensation to all employees entitled to the same in addition to the onemonth weighted average pay granted by this office in the return-to-work Order." (p. 786, Rollo) On June 6, 1986, Minister Sanchez modified the foregoing decision as follows: "WHEREFORE, our 23 April 1986 Decision is hereby modified as follows: "1. Nestle Philippines is directed to pay the Anniversary bonus equivalent to one month basic salary to all its employees in lieu of the one month gross compensation previously ordered by this office." (p. 787, Rollo) On November 13, 1987, after trial on the merits, Labor Arbiter Eduardo G. Magno issued his decision, disposing as follows: "WHEREFORE, judgment is hereby rendered: "1. Declaring the strike illegal.: nad "2. Declaring all the respondent union officers, namely: M.L. Sarmiento, R.M. Alterejos, R.D. Paglinawan, C.G. Nuqui, C.Y. Sazon, R. Lucas, R. Armas, E. Abella, A.A. Caete, J.T. Capili, A.S. Castillo, Jr., P.C. Caringal, E. Leonardo, E.B. Mira, E.C. Nuez, P.D. San Jose, V. Solis, E. Villena, A. Ricafrente, M. Lantin, A. Mortojo, R. Munsod, R. Diaz, R. Urgelles, C. San Jose, E. Bunyi, N. Centeno, R. Gacutan, G. de Borja, N. Nipales, E. San Pedro, M. de la Fuente, C. Medina, C.

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Ponce, J. Castro Jr., R. Arevalo, R. Beo, F. Esguerra, R. Almenanza, E. Quino, M. Roxas, R. Arandela, W. Ramirez, I. Natividad, S. Pampang, D. Canlobo, G. Noble, E. Sayao, C. Cenido, F. Mijares, R. Calong-Calong, P. Quitlong, D. Completo, A. Avelino, L. Payabyab, I. Rieza, D. Belarmino, Q. Mateo, and C. Pre to have lost their employment status. "3. Declaring the union guilty of unfair labor practice; and "4. Dismissing the Union complaint for unfair labor practice." (pp. 380-381, Rollo) 2. In RAB-X-2-0047-86: Filipro (Nestle) and the Cagayan de Oro Filipro Workers Union-WATU, renewed a 3-year contract, made effective from December 1, 1984 up to June 30, 1987. Petitioners signed the CBA as the duly-elected officers of the Union. On January 19, 1985, the union officers, together with other members of the union sent a letter to Workers Alliance Trade Unions (WATU), advising them "that henceforth we shall administer the CBA by ourselves and with the help of the Union of Filipro Employees (UFE) to where we have allied ourselves." WATU disregarded the unions's advice, claiming to be the contracting party of the CBA. UFE filed a petition (Case No. CRD-M-88-326-85) for administration of the existing CBAs at Cebu, Davao and Cagayan de Oro bargaining units against TUPAS and WATU. From January 22, 1986 to March 14, 1986, the rank and file employees of the company staged a strike at the instigation of the UFE officers, who had represented themselves as officers. Nestle filed a petition to declare the strike illegal. The strikers countered that their strike was legal because the same was staged pursuant to the notice of strike filed by UFE on November 14, 1985 (BLR-NS-11-344-85), of which they claim to be members, having disaffiliated themselves from CDO-FWU-WATU. On November 24, 1987, Executive Labor Arbiter Zosimo Vasallo issued his decision, disposing as follows: "WHEREFORE, in view of the foregoing, judgment is hereby rendered: "1. Declaring the strike illegal; "2. Declaring respondent union guilty of unfair labor practice; and "3. Declaring the following individual respondent Union officers namely: Roy Y. Baconguis, Jerome T. Fiel, Efren P. Dinsay, Anastacio G. Caballero, Susan E. Berro, Jose T. Isidto, Wilson C. Barros, Rogelio E. Raiz, Manuel A. Lavin and Cipriano P. Lupeba to have lost their employment status." (p. 388, Rollo) 3. In NCR-00-09-03285-87. (a) On August 13, 1986, UFE, its officers and members staged a walkout from their jobs, and participated in the Welga ng Bayan. Nestl filed a petition to declare the walkout illegal (NLRC Case No. SRB-IV-1831-87) (p. 392, Rollo); (b) On September 21, 1986, complainants (UFE) again did not proceed to their work, but joined the picket line in sympathy with the striking workers of Southern Textile Mills, which became the subject of an Illegal Strike Petition (NLRC Case SRB-IV-I 1831-87) (p. 392, Rollo); (c) On November 12, 1986, UFE its officers and members just left their work premises and marched towards Calamba in a demonstration over the slaying of a labor leader, . . . hence a complaint for Illegal Walkout (NLRC Case No. SRB-IV1833-87) was filed by Nestle (p. 392, Rollo); (d) On December 4, 1986, UFE filed a Notice of Strike with the Bureau of Labor Relations (BLR-NS-12-531-86) (to protest the unfair labor practices of Nestle, such as hiring of contractual workers to perform regular jobs and wage discrimination) (p. 392, Rollo); (e) On December 23, 1986, then Minister Augusto S. Sanchez certified the labor dispute to the Commission for compulsory arbitration, strictly enjoining any intended or actual strike or lockout (p. 392, Rollo); (f) On August 18, 1987, UFE union officers and members at the Cabuyao factory again abandoned their jobs and just walked out, leaving unfinished products on line and raw materials leading to their spoilage. The walk-out resulted in economic losses to the company. Nestle filed a Petition to Declare the Walkout Illegal. (NLRC Case No. SRB-IV-3-1898-87) (p. 407, Rollo); (g) On August 21, 1987, UFE union officers and members at the Alabang factory also left their jobs in sympathy with the walkout staged by their Cabuyao counterparts. Nestle filed again a Petition to Declare the Strike Illegal (NLRCNCR-Case No. 00-08-03003-87) (p. 407, Rollo); (h) On August 27, 1987, UFE union members at the Alabang and Cabuyao factories, in disregard of the Memorandum of Agreement entered into by the Union and Management on August 21, 1987, (to exert their best efforts for the normalization of production targets and standards and to consult each other on any matter that may tend to disrupt production to attain industrial peace) participated in an indignation rally in Cabuyao because of the death of two (2) members of PAMANTIC, and in Alabang because one of their members was allegedly mauled by a policeman during the nationwide strike on August 26, 1987 (p. 408, Rollo); (i) On September 4, 1987, around 6:00 P.M. all sections at the Alabang factory went on a 20-minute mealbreak simultaneously, contrary to the agreement and despite admonition of supervisors, resulting in complete stoppage of their production lines. Responsible officials namely: Eugenio San Pedro, Carlos Jose, and Cesar Ponce, were suspended from work for six (6) days without pay (p. 408, Rollo); (j) From September 5 to 8, 1987, at the instigation of UFE union officers, all workers staged a sitdown strike; and (k) On September 7, 1987, Cabuyao's culinary section's union members sympathized with the sitdown strike at Alabang, followed at 12:30 P.M. by the whole personnel of the production line and certain areas in the Engineering Department. These sitdown strikes at the Alabang and Cabuyao factories became the subject of two separate petitions to declare the strike illegal (NCR-Case No. 00-09-03168-87 and SRB-IB-9-1903-87, respectively) (p. 408, Rollo); (l) On September 8, 1987, Hon. F. Drilon issued the following order: "All the workers are hereby directed to return to work immediately, refrain from resorting to any further slowdown, sitdown strike, walkout and any other kind of activities that may tend to disrupt the normal operations of the company. The

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company is directed to accept all employees and to resume normal operations.: nad Parties are likewise directed to cease and desist from committing any and all acts that would aggravate the situation." (p. 394, Rollo) (m) Despite the order, UFE staged a strike on September 11, 1987, without notice of strike, strike vote and in blatant defiance of then Labor Minister Sanchez's certification order dated November 23, 1986 and Secretary Drilon's return-to-work order dated September 8, 1987." (p. 409, Rollo); (n) Nestle sent individual letter of termination dated September 14, 1987 dismissing them from the service effective immediately for knowingly instigating and participating in an illegal strike, defying the order of the Secretary of Labor, dated September 8, 1987, and other illegal acts (pp. 394-395, Rollo). On September 22, 1987, UFE filed a complaint for Illegal Dismissal, ULP and damages (NLRC NCR-00-03285-87). Labor Arbiter Evangeline Lubaton ruled on both issues of dismissal and strike legality, upon the premise that the issue on validity of the dismissal of the individual complainants from employment "depends on the resolution of the issue on whether or not the strike declared by complainants was illegal." The decision dated January 12, 1988, disposed as follows: "WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Dismissing the instant complaint for lack of merit; and 2. Confirming the dismissal of all individual complainants herein as valid and legally justified." (p. 376, Rollo) UFE appealed, assailing the three decisions, except that rendered in Case No. NLRC-NCR-12-4007-85 (Complaint for Unfair Labor Practice Against UFE) "because it was already rendered moot and academic by the return to work agreement and order dated March 10 and 13, 1986, respectively." (p. 49, Rollo). Upon UFE's subsequent motion, the three appeals were ordered consolidated and elevated to the NLRC en banc (p, 95, Rollo) The NLRC affirmed the unanimous decisions of the three labor arbiters which declared the strikes illegal, premised on the view that "the core of the controversy rests upon the legality of the strikes." In the petition before Us, UFE assigns several errors (pp. 63-321, Rollo), which We have summarized as follows: 1. that Articles 263 and 264 are no longer good laws, since compulsory arbitration has been curtailed under the present Constitution. 2. that the question on the legality of the strike was rendered moot and academic when Nestle management accepted the striking workers in compliance with the return-to-work order of then Minister of Labor Augusto Sanchez dated March 13, 1986, (citing the case of Bisayan Land Transportation Co. v. CIR (102 Phil. 439) and affirmed in the case of Feati University Faculty Club (PAFLU) v. Feati University, G.R. No. L-31503, August 15, 1974, 58 SCRA 395).chanrobles virtual law library 3. that the union did not violate the no-strike/no lock-out clause, considering that the prohibition applies to economic strikes, pursuant to Philippine Metal Foundries v. CIR, G.R. No. L-34948-49, May 15, 1979, 90 SCRA 135. UFE, it is claimed, premised their strike on a violation of the labor standard laws or non-payment of holiday pay, which is, in effect, a violation of the CBA. 4. on the commission of illegal and prohibited acts which automatically rendered the strike illegal, UFE claimed that there were no findings of specific acts and identifies of those participating as to render them liable (ESSO Phils. v. Malayang Manggagawa sa ESSO, G.R. No. L-36545, January 26, 1977, 75 SCRA 72; Shell Oil Workers Union v. CIR, G.R. No. L-28607, February 12, 1972, 43 SCRA 224). By holding the officers liable for the illegal acts of coercion, or denial of free ingress and egress, without specifying and finding out their specific participation therein, the Labor Arbiter resorted to the principle of vicarious liability which has since been discarded in the case of Benguet Consolidated v. CIR, G.R. No. L24711, April 30, 1968, 23 SCRA 465. We agree with the Solicitor General that the petition failed to show that the NLRC committed grave abuse of discretion in its affirmance of the decisions of the Labor Arbiters a quo. At the outset, UFE questions the power of the Secretary of Labor under Art. 263(g) of the Labor Code to assume jurisdiction over a labor dispute tainted with national interests, or to certify the same for compulsory arbitration. UFE contends that Arts. 263 and 264 are based on the 1973 Constitution, specifically Sec. 9 of Art. II thereof, the pertinent portion of which reads: "Sec. 9. . . . The State may provide for compulsory arbitration." (p. 801, Rollo) UFE argues that since the aforecited provision of Sec. 9 is no longer found in the 1987 Constitution, Arts. 263(g) and 264 of the Labor Code are now "unconstitutional and must be ignored." We are not persuaded. We agree with the Solicitor General that on the contrary, both provisions are still applicable. We quote: "Article 7 of the New Civil Code declares that: 'Article 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse or custom or practice to the contrary. x x x' "In the case at bar, no law has ever been passed by Congress expressly repealing Articles 263 and 264 of the Labor Code. Neither may the 1987 Constitution be considered to have impliedly repealed the said Articles considering that there is no showing that said articles are inconsistent with the said Constitution. Moreover, no court has ever declared that the said articles are inconsistent with the 1987 Constitution. "On the contrary, the continued validity and operation of Articles 263 and 264 of the Labor Code has been recognized by no less than the Congress of the Philippines when the latter enacted into law R.A. 6715, otherwise known as Herrera Law, Section 27 of which amended paragraphs (g) and (i) of Article 263 of the Labor Code. "At any rate, it must be noted that Articles 263 (g) and 264 of the Labor Code have been enacted pursuant to the police power of the State, which has been defined as the power inherent in a Government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general

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welfare of society (People vs. Vera Reyes, 67 Phil. 190). The police power, together with the power of eminent domain and the power of taxation, is an inherent power of government and does not need to be expressly conferred by the Constitution. Thus, it is submitted that the argument of petitioners that Articles 263 (g) and 264 of the Labor Code do not have any constitutional foundation is legally inconsequential." (pp. 801-803, Rollo) On the issue of the legality of the strike committed, UFE seeks to absolve itself by pointing out qualifying factors such as motives, good faith, absence of findings on specific participation and/or liability, and limiting the no-strike provision to economic strikes. UFE completely misses the underlying principle embodied in Art. 264(g) on the settlement of labor disputes and this is, that assumption and certification orders are executory in character and are to be strictly complied with by the parties even during the pendency of any petition questioning their validity. 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 actions. Thus, the NLRC in its decision, re-emphasized the nature of a return-towork order within the context of Art. 264(g) as amended by BP Nos. 130 and 227: "x x x "One other point that must be underscored is that the return-to-work order is issued pending the determination of the legality or illegality of the strike. It is not correct to say that it may be enforced only if the strike is legal and may be disregarded if the strike is illegal, for the purpose precisely is to maintain the status quo while the determination is being made. Otherwise, the workers who contend that their strike is legal can refuse to return to work to their work and cause a standstill on the company operations while retaining the positions they refuse to discharge or allow the management to fill. Worse, they will also claim payment for work not done, on the ground that they are still legally employed although actually engaged in the activities inimical to their employer's interest. (Emphasis supplied) "This is like eating one's cake and having it too, and at the expense of the management. Such an unfair situation surely was not contemplated by our labor laws and cannot be justified under the social justice policy, which is a policy of fairness to both labor and management. Neither can this unseemly arrangement be sustained under the due process clause as the order, if thus interpreted, would be plainly oppressive and arbitrary. ". . ." (p. 415, Rollo) Also, in the cases of Sarmiento v. Judge Tuico, (G.R. No. 75271-73; Asian Transmission Corporation v. National Labor Relations Commission, G.R. 77567, 27 June 88, 162 SCRA 676). We stated: "The return to work order does not so much confer a right as it imposes a duty; and while as a right it may be waived, it must be discharged as a duty even against the worker's will. 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.": nad We also wish to point out that an assumption and/or certification order of the Secretary of Labor automatically results in a return-to-work of all striking workers, whether or not a corresponding order has been issued by the Secretary of Labor. Thus, the striking workers erred when they continued with their strike alleging absence of a return-to-work order. Article 264(g) is clear. Once an assumption/certification order is issued, strikes are enjoined, or if one has already taken place, all strikers shall immediately return to work. A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 264 of the Labor Code as amended (Zamboanga Wood Products, Inc. v. NLRC, G.R. 82088, October 13, 1989; 178 SCRA 482). The Union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act. The NLRC also gave the following reasons: 1. The strike was staged in violation of the existing CBA provisions on "No Strike/No Lockout Clause" stating that a strike, which is in violation of the terms of the collective bargaining statement, is illegal, especially when such terms provide for conclusive arbitration clause (Liberal Labor Union vs. Phil. Can Co., 91 Phil. 72; Phil. Airlines vs. PAL Employees Association, L-8197, October 31, 1958). The main purpose of such an agreement is to prevent a strike and it must, therefore, be adhered to strictly and respected if their ends are to be achieved (pp. 397-398, Rollo) 2. Instead of exhausting all the steps provided for in the grievance machinery provided for in the collective bargaining agreement to resolve the dispute amicably and harmoniously within the plant level, UFE went on strike (p. 398, Rollo) 3. The prescribed mandatory cooling-off period and then 7-day strike and after submission of the report of strike vote at Nestle's Makati Offices and Muntinlupa and Cabuyao Plants were not complied with (NLRC-NCR-124007-85 & NCR-1295-86), while no notice of strike was filed by respondents when they staged the strike at Nestle's Cagayan de Oro Plant (RABX-2-0047-86) contrary to the pertinent provision of Articles 263 and 264 of the Labor Code, emphasizing that "the mandatory character of these cooling-off periods has already been categorically ruled upon by the Supreme Court" (National Federation of Sugar Workers (NFSW) vs. Ovejera, et al., 114 SCRA 354) (p. 402, Rollo)- nad 4. In carrying out the strike, coercion, force, intimidation, violence with physical injuries, sabotage, and the use of unnecessary and obscene language or epithets

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were committed by the respondent officials and members of either UFE or WATU. It is well-settled that a strike conducted in this manner is illegal (United Seamen's Union vs. Davao Shipowners Association, 20 SCRA 1226). In fact, criminal cases were filed with the Makati Fiscal's Office (p. 402, Rollo). Thus, the NLRC correctly upheld the illegality of the strikes and the corresponding dismissal of the individual complainants because of their "brazen disregard of successive lawful orders of then Labor Ministers Blas F. Ople, Augusto Sanchez and Labor Secretary Franklin Drilon dated December 11, 1985, January 30, 1986 and February 4, 1986, respectively, and the cavalier treatment of the provisions of the Labor Code and the return-to-work orders of the Minister (now Secretary) of Labor and Employment, or Articles 264 and 265 (now renumbered Arts. 263 and 264), providing in part as follows: "ART. 263. Strikes, picketing and lockouts. x x x "(g) When in his opinion there exists a labor dispute causing or likely to cause strikes or lockouts adversely affecting the national interest, such as may occur in but not limited to public utilities, companies engaged in the generation or distribution of energy, banks, hospitals, and export-oriented industries including those within export processing zones, the Minister of Labor and Employment shall 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 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 Minister 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. (Italics supplied)- nad "The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries wherein (sic) his opinion labor disputes may adversely affect the national interest, and from intervening at any time and assuming jurisdiction over any labor dispute adversely affecting the national interest in order to settle or terminate the same. x x x 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 o f cases involving the same grounds for the strike or lockout." ([pp. 399-401, Rollo]) (Emphasis supplied) On the alleged lack of jurisdiction of Labor Arbiter Lubaton, NLRC has clarified that the question on the legality of strike was properly resolved by the Labor Arbiter, not only because the question is perfectly within the original and exclusive jurisdiction of the Labor Arbiter to adjudicate, but also because the issue was not subsumed by the Order of Labor Minister Sanchez, dated December 23, 1986, certifying the Notice of Strike dated December 4, 1986 for compulsory arbitration, further clarifying that the issue of whether or not the strike staged on September 11, 1987 by UFE and its officials and members was illegal is a prejudicial question to the issue of whether or not the complainants were illegally dismissed. We shall not belabor the issue any further.: nad ACCORDINGLY, the petition is DISMISSED, and the decision of public respondent NLRC, dated November 2, 1988, and its Resolution, dated March 7, 1989, are both AFFIRMED in their entirety. No costs. SO ORDERED. __________ G.R. No. 169632 March 28, 2006 UNIVERSITY OF SAN AGUSTIN EMPLOYEES UNION-FFW (USAEU-FFW), and individual union officers THEODORE NEIL LASOLA, MERLYN JARA, JULIUS MARIO, FLAVIANO MANALO, RENE CABALUM, HERMINIGILDO CALZADO, MA. LUZ CALZADO, RAY ANTHONY ZUIGA, RIZALENE VILLANUEVA, RUDANTE DOLAR, ROVER JOHN TAVARRO, RENA LETE, ALFREDO GORIONA, RAMON VACANTE and MAXIMO MONTERO, Petitioners, vs. THE COURT OF APPEALS and UNIVERSITY OF SAN AGUSTIN, Respondents. DECISION GARCIA, J.: By this petition for review on certiorari, petitioners University of San Agustin Employees Union-FFW (Union) and its officers seek to reverse and set aside the Partially Amended Decision1 of the Court of Appeals (CA) dated August 23, 2005 in CA-G.R.SP No. 85317, reversing the Decision and Resolution of the Secretary of Labor and Employment (SOLE) dated April 6, 2004 and May 24, 2004, respectively. The assailed CA decision declared the strike conducted by the petitioner Union, illegal, and consequently, the co-petitioner union officers were deemed to have lost their employment status. It further vacated the SOLEs resolution of the economic issues involved in the case and directed the parties to resort to voluntary arbitration in accordance with the grievance machinery as embodied in their existing collective bargaining agreement (CBA). The facts: Respondent University of San Agustin (University) is a non-stock, non-profit educational institution which offers both basic and higher education courses. Petitioner Union is the duly recognized collective bargaining unit for teaching and non-teaching rank-and-file personnel of the University while the other individual petitioners are its officers. On July 27, 2000, the parties entered into a 5-year CBA2 which, among other things, provided that the economic provisions thereof shall have a period of three

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(3) years or up to 2003. Complementary to said provisions is Section 3 of Article VIII of the CBA providing for salary increases for School Years (SY) 2000-2003, such increase to take the form of either a lump sum or a percentage of the tuition incremental proceeds (TIP). The CBA contained a "no strike, no lockout" clause and a grievance machinery procedure to resolve management-labor disputes, including a voluntary arbitration mechanism should the grievance committee fail to satisfactorily settle such disputes. Pursuant to the CBA, the parties commenced negotiations for the economic provisions for the remaining two years, i.e., SY2003-2004 and SY2004-2005. During the negotiations, the parties could not agree on the manner of computing the TIP, thus the need to undergo preventive mediation proceedings before the National Conciliation and Mediation Board (NCMB), Iloilo City. The impasse respecting the computation of TIP was not resolved. This development prompted the Union to declare a bargaining deadlock grounded on the parties failure to arrive at a mutually acceptable position on the manner of computing the seventy percent (70%) of the net TIP to be allotted for salary and other benefits for SY2003-2004 and SY2004-2005. Thereafter, the Union filed a Notice of Strike before the NCMB which was expectedly opposed by the University in a Motion to Strike Out Notice of Strike and to Refer the Dispute to Voluntary Arbitration,3 invoking the "No strike, no lockout" clause4 of the parties CBA. The NCMB, however, failed to resolve the Universitys motion. The parties then made a joint request for the SOLE to assume jurisdiction over the dispute. The labor dispute was docketed as OS-AJ-0032-2003. On September 18, 2003, an Assumption of Jurisdiction Order 5 (AJO) was issued by the SOLE, thus: WHEREFORE, this Office hereby ASSUMES JURISDICTION over the labor dispute at the UNIVERSITY OF SAN AGUSTIN, pursuant to Article 263(g) of the Labor Code, as amended. ACCORDINGLY, any strike or lockout whether actual or intended, is hereby strictly enjoined and the parties are directed to cease and desist from committing any act that might exacerbate the situation. Finally, to expedite resolution of the dispute, the parties are directed to submit their respective position papers and evidence to this Office within TEN (10) calendar days from receipt hereof, with proof of service to the other party. REPLY thereto shall be submitted with proof of service to the other party, within five (5) calendar days from receipt of the other partys POSITION PAPER. On September 19, 2003, the Union staged a strike. At 6:45 a.m. of the same day, Sheriffs Francisco L. Reyes and Rocky M. Francisco had arrived at San Agustin University to serve the AJO on the Union. At the main entrance of the University, the sheriffs saw some elements of the Union at the early stages of the strike. There they met Merlyn Jara, the Unions vice president, upon whom the sheriffs tried to serve the AJO, but who, after reading it, refused to receive the same, citing Union Board Resolution No. 3 naming the union president as the only person authorized to do so. The sheriffs explained to Ms. Jara that even if she refused to acknowledge receipt of the AJO, the same would be considered served. Sheriff Reyes further informed the Union that once the sheriffs post the AJO, it would be considered received by the Union.6 At approximately 8:45 a.m., the sheriffs posted copies of the AJO at the main gate of San Agustin University, at the main entrance of its buildings and at the Unions office inside the campus. At 9:20 a.m., the sheriffs served the AJO on the University. Notwithstanding the sheriffs advice as to the legal implication of the Unions refusal to be served with the AJO, the Union went ahead with the strike. At around 5:25 p.m., the Union president arrived at the respondent Universitys premises and received the AJO from the sheriffs. On September 24, 2003, the University filed a Petition to Declare Illegal Strike and Loss of Employment Status7 at the National Labor Relations Commission (NLRC) Sub-regional Arbitration Branch No. VI in Iloilo City. The case was docketed as NLRC SRAB Case No. 06-09-50370-03, which the University later on requested to be consolidated with OS-AJ-0032-2003 pending before the SOLE. The motion for consolidation was granted by the Labor Arbiter in an Order dated November 7, 2003.8 On April 6, 2004, the SOLE rendered a Decision9 resolving the various economic issues over which the parties had a deadlock in the collective bargaining, including the issue of legality/illegality of the September 19, 2003 strike. Dispositively, the decision reads: WHEREFORE, the parties are hereby directed to conclude a memorandum of agreement embodying the foregoing dispositions to be appended to the current CBA. The petition to declare the strike illegal is hereby DISMISSED for want of legal and factual basis. Consequently, there is no basis whatsoever to declare loss of employment status on the part of any of the striking union members. SO ORDERED. The University moved for a reconsideration of the said decision but its motion was denied by the SOLE in a Resolution10 of May 24, 2004. In time, the University elevated the matter to the CA by way of a petition for certiorari, thereat docketed as CA-G.R. SP No. 85317. On March 4, 2005, the CA rendered a Decision11 partially granting the Universitys petition. While the CA affirmed the rest of the SOLEs decision on the economic issues, particularly the formula to be used in computing the share of the employees in the tuition fee increase for Academic Year 2003-2004, it, however, reversed the SOLEs ruling as to the legality of the September 19, 2003 strike, to wit: WHEREFORE, the foregoing premises considered, the petition is hereby partially GRANTED. The assailed Decision of the public respondent SOLE is hereby MODIFIED to the effect that the strike held by the [petitioners] on September 19, 2003 is illegal. Hence, the union officers are deemed to have lost their employment status. The assailed Decision however, is AFFIRMED in all other respects. SO ORDERED. (Word in bracket added).

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Both parties filed their respective motions for partial reconsideration of the aforestated decision, the University excepting from the CAs decision insofar as the latter affirmed the SOLEs resolution of the economic issues. On the other hand, the Union sought reconsideration of the CAs finding of illegality of the September 19, 2003 strike. In the meantime, on April 7, 2005, the University served notices of termination to the union officers who were declared by the CA as deemed to have lost their employment status. On the same day April 7, 2005 in response to the Universitys action, the Union filed with the NCMB a second notice of strike, this time on ground of alleged union busting. On April 22, 2005, the parties again took initial steps to negotiate the new CBA but said attempts proved futile. Hence, on April 25, 2005, the Union went on strike. In reaction, the University notified the Union that it was pulling out of the negotiations because of the strike. On August 23, 2005, the CA, acting on the parties respective motions for reconsideration, promulgated the herein challenged Partially Amended Decision.12 Finding merit in the respondent Universitys motion for partial reconsideration, the CA ruled that the SOLE abused its discretion in resolving the economic issues on the ground that said issues were proper subject of the grievance machinery as embodied in the parties CBA. Consequently, the CA directed the parties to refer the economic issues of the CBA to voluntary arbitration. The CA, however, stood firm in its finding that the strike conducted by the petitioner Union was illegal and its officers were deemed to have lost their employment status. Dispositively, the decision reads: WHEREFORE, in view of all the foregoing premises, an amended judgment is hereby rendered by us GRANTING the petition for certiorari, SETTING ASIDE our original decision in this case which was promulgated on March 4, 2005, SETTING ASIDE also the Decision rendered by the public respondent SOLE on April 6, 2004 and DECLARING the strike held on September 19, 2003 by the [petitioner] Union as ILLEGAL. The union officers are therefore deemed to have lost their employment status. The parties are hereby DIRECTED to refer the economic issues of the CBA to VOLUNTARY ARBITRATION, where the computation and determination of the TIP shall be in the manner directed in the body of this Decision. SO ORDERED. On September 20, 2005, the Union and its dismissed officers filed the instant petition raising the following basic issues: I THE HONORABLE COURT OF APPEALS GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN DECLARING ILLEGAL THE STRIKE OF THE PETITIONERS ON SEPTEMBER 19, 2003 AND IN DECLARING THE UNION OFFICERS AS DEEMED TO HAVE LOST THEIR EMPLOYMENT STATUS FOR THE ALLEGED FAILURE OF THE PETITIONERS TO IMMEDIATELY RETURN TO THEIR WORK WHEN THE ASSUMPTION OF JURISDICTION ORDER WAS DEEMED SERVED UPON THEM BY THE DOLE SHERIFFS AS OF 8:45 IN THE MORNING OF THAT DATE, WHEN, IN CASES WHERE THE STRIKE HAS ALREADY COMMENCED, THE SECRETARY OF LABOR AND EMPLOYMENT (SOLE) ALWAYS GIVES TWENTY-FOUR HOURS TO THE STRIKING WORKERS WITHIN WHICH TO RETURN TO WORK, AND TAKING INTO CONSIDERATION THE TOTALITY OF THE CONDUCT OF THE STRIKERS, AS WHAT THE SOLE HAD DONE, THE PETITIONERS HAVE NOT MANIFESTED NAKED DISPLAY OF RECALCITRANCE NOR SHOWN BAD FAITH TO THE RESPONDENT UNIVERSITY. II THE HONORABLE COURT OF APPEALS GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN DIRECTING TO REFER THE ECONOMIC ISSUES OF THE LABOR DISPUTE TO VOLUNTARY ARBITRATION WHEN IT IS SETTLED BY JURISPRUDENCE THAT "THE LABOR SECRETARYS AUTHORITY TO ASSUME JURISDICTION OVER A LABOR DISPUTE MUST INCLUDE AND EXTEND TO ALL QUESTIONS AND CONTROVERSIES ARISING THEREFROM, EVEN INCLUDING CASES OVER WHICH THE LABOR ARBITER HAS EXCLUSIVE JURISDICTION." Prefatorily, we restate the time-honored principle that in petitions for review under Rule 45 of the Rules of Court, only questions of law may be raised. It is not our function to analyze or weigh all over again evidence already considered in the proceedings below, our jurisdiction being limited to reviewing only errors of law that may have been committed by the lower court. 13 The resolution of factual issues is the function of lower courts, whose findings on these matters are received with respect. A question of law which we may pass upon must not involve an examination of the probative value of the evidence presented by the litigants.14 Here, however, the findings of fact of the CA are not in accord with the conclusions made by the SOLE regarding the legality of the subject strike. Consequently, we are compelled to make our own assessment of the evidence on record insofar as the strike issue is concerned. We find the CAs conclusions to be well supported by evidence, particularly the Sheriffs Report.15 As we see it, the SOLE was remiss in disregarding the sheriffs report. It bears stressing that said report is an official statement by the sheriff of his acts under the writs and processes issued by the court, in this case, the SOLE, in obedience to its directive and in conformity with law. In the absence of contrary evidence, a presumption exists that a sheriff has regularly performed his official duty. To controvert the presumption arising therefrom, there must be clear and convincing evidence. The sheriffs report unequivocally stated the union officers refusal to receive the AJO when served on them in the morning of September 19, 2003. The September 16, 2003 Unions Board Resolution No. 3 which gave sole authority to its president to receive the AJO must not be allowed to circumvent the standard operating procedure of the Office of the Undersecretary for Labor Relations which considers AJOs as duly served upon posting of copies thereof on designated places. The procedure was adopted in order to prevent the thwarting of AJOs by

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the simple expedient of refusal of the parties to receive the same, as in this case. The Union cannot feign ignorance of this procedure because its counsel Atty. Mae M. Gellecanao-Laserna was a former Regional Director of the Department of Labor and Employment (DOLE). To be sure, the Union was not able to sufficiently dispute the truth of the narration of facts contained in the sheriffs report. Hence, it was not unreasonable for the CA to conclude that there was a deliberate intent by the Union and its officers to disregard the AJO and proceed with their strike, which, by their act of disregarding said AJO made said strike illegal. The AJO was issued by the SOLE pursuant to Article 263(g) of the Labor Code, which reads: Art. 263. Strikes, picketing, and lockouts. - (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 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. (Emphasis supplied). Conclusively, when the SOLE assumes jurisdiction over a labor dispute in an industry indispensable to national interest or certifies the same to the NLRC for compulsory arbitration, such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout. Moreover, if one had already taken place, all striking workers 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. In Trans-Asia Shipping Lines, Inc., et al. vs. CA, et al., 16 the Court declared that when the Secretary exercises these powers, he is granted great breadth of discretion in order to find a solution to a labor dispute. The most obvious of these powers is the automatic enjoining of an impending strike or lockout or the lifting thereof if one has already taken place. Assumption of jurisdiction over a labor dispute, or the certification of the same to the NLRC for compulsory arbitration, always co-exists with an order for workers to return to work immediately and for employers to readmit all workers under the same terms and conditions prevailing before the strike or lockout. In this case, the AJO was served at 8:45 a.m. of September 19, 2003. The strikers then should have returned to work immediately. However, they persisted with their refusal to receive the AJO and waited for their union president to receive the same at 5:25 p.m. The Unions defiance of the AJO was evident in the sheriffs report: We went back to the main gate of the University and there NCMB Director Dadivas introduced us to the Union lawyer, Atty. Mae Lacerna a former DOLE Regional Director. Atty. Lacerna however refused to be officially served the Order again pointing to Board Resolution No. 3 passed by the Union officers. Atty. Lacerna then informed the undersigned Sheriffs that the Union president will accept the Order at around 5:00 oclock in the afternoon. Atty. Lacerna told the undersigned Sheriff that only when the Union president receives the Order at 5:00 p.m. shall the Union recognize the Secretary of Labor as having assumed jurisdiction over the labor dispute.17 Thus, we see no reversible error in the CAs finding that the strike of September 19, 2003 was illegal. Consequently, the Union officers were deemed to have lost their employment status for having knowingly participated in said illegal act. The Unions assertion of a well settled practice that the SOLE always gives twenty-four hours (24) to the striking workers within which to return to work, offers no refuge. Aside from the fact that this alleged well settled practice has no basis in law and jurisprudence, Article 263(g) of the Labor Code, supra, is explicit that if a strike has already taken place at the time of assumption of jurisdiction 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 lock-out. This is compounded further by this Courts rulings which have never interpreted the phrase "immediately return to work" found in Article 263(g) to mean "within twenty four (24) hours." On the other hand, the tenor of these ponencias18 indicates an almost instantaneous or automatic compliance for a striker to return to work once an AJO has been duly served. We likewise find logic in the CAs directive for the herein parties to proceed with voluntary arbitration as provided in their CBA. As we see it, the issue as to the economic benefits, which included the issue on the formula in computing the TIP share of the employees, is one that arises from the interpretation or implementation of the CBA. To be sure, the parties CBA provides for a grievance machinery to resolve any "complaint or dissatisfaction arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies." 19 Moreover, the same CBA provides that should the grievance machinery fail to resolve the grievance or dispute, the same shall be "referred to a Voluntary Arbitrator for arbitration and final resolution."20 However, through no fault of the University these processes were not exhausted. It must be recalled that while undergoing preventive mediation proceedings before the NCMB, the Union declared a bargaining deadlock, filed a notice of strike and thereafter, went on strike. The University filed a Motion to Strike Out Notice of Strike and to Refer the Dispute to Voluntary Arbitration21 but the motion was not acted upon by the NCMB. As borne by the records, the University has been consistent in its position that the Union must exhaust the grievance machinery provisions of the CBA which ends in voluntary arbitration. The Universitys stance is consistent with Articles 261 and 262 of the Labor Code, as amended which respectively provide:

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ART. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, 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. The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators and shall immediately dispose and refer the same to the grievance machinery or voluntary arbitration provided in the collective bargaining agreement. ART. 262. Jurisdiction over other labor disputes. - The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. The grievance machinery and no strike, no lockout22 provisions of the CBA forged by the University and the Union are founded on Articles 261 and 262 quoted above. The parties agreed that practically all disputes including bargaining deadlocks shall be referred to the grievance machinery which ends in voluntary arbitration. Moreover, no strike or no lockout shall ensue while the matter is being resolved. The University filed a Motion to Strike Out Notice of Strike and Refer the Dispute to Voluntary Arbitration23precisely to call the attention of the NCMB and the Union to the fact that the CBA provides for a grievance machinery and the parties obligation to exhaust and honor said mechanism. Accordingly, the NCMB should have directed the Union to honor its agreement with the University to exhaust administrative grievance measures and bring the alleged deadlock to voluntary arbitration. Unfortunately, the NCMB did not resolve the Universitys motion thus paving the way for the strike on September 19, 2003 and the deliberate circumvention of the CBAs grievance machinery and voluntary arbitration provisions. As we see it, the failure or refusal of the NCMB and thereafter the SOLE to recognize, honor and enforce the grievance machinery and voluntary arbitration provisions of the parties CBA unwittingly rendered said provisions, as well as, Articles 261 and 262 of the Labor Code, useless and inoperative. As here, a union can easily circumvent the grievance machinery and a previous agreement to resolve differences or conflicts through voluntary arbitration through the simple expedient of filing a notice of strike. On the other hand, management can avoid the grievance machinery and voluntary arbitration provisions of its CBA by simply filing a notice of lockout. In Liberal Labor Union vs. Philippine Can Company,24 the Court viewed that the main purpose of management and labor in adopting a procedure in the settlement of their disputes is to prevent a strike or lockout. Thus, this procedure must be followed in its entirety if it is to achieve its objective. Accordingly, the Court in said case held: The authorities are numerous which hold that strikes held in violation of the terms contained in a collective bargaining agreement are illegal, specially when they provide for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their ends have to be achieved. It is noteworthy that in Liberal, management refused to submit names in connection with the formation of the grievance committee. Yet, the Court ruled in that case that labor still had no right to declare a strike, for its duty is to exhaust all available means within its reach before resorting to force. In the case at bench, the University, in filing its Motion to Strike Out Notice of Strike and to Refer the Dispute to Voluntary Arbitration before the NCMB, was insisting that the Union abide by the parties CBAs grievance machinery and voluntary arbitration provisions. With all the more reasons then should the Union be directed to proceed to voluntary arbitration. We are not unmindful of the Courts ruling in International Pharmaceuticals, Inc. vs. Secretary of Labor, et al.,25that the SOLE s jurisdiction over labor disputes must include and extend to all questions and controversies arising therefrom, including cases over which the Labor Arbiter has exclusive jurisdiction. However, we are inclined to treat the present case as an exception to that holding. For, the NCMBs inaction on the Universitys motion to refer the dispute to voluntary arbitration veritably forced the hand of the University to seek and accordingly submit to the jurisdiction of the SOLE. Considering that the CBA contained a no strike, no lockout and grievance machinery and voluntary arbitration clauses, the NCMB, under its very own Manual of Procedures in the Settlement and Disposition of Conciliation and Preventive Mediation Cases, should have declared as not duly filed the Unions Notice of Strike and thereafter, should have referred the labor dispute to voluntary arbitration pursuant to Article 261, supra, of the Labor Code. For sure, Section 6(c)(i), Rule VI, of the NCMBs Manual specifically provides: Section 6. Action on non-strikeable issues - A strike or lockout notice anchored on grounds involving (1) inter-union or intra-union disputes (2) violation of labor standard laws (3) pending cases at the DOLE Regional Offices, BLR, NLRC and its appropriate Regional Branches, NWPC and its Regional Wage Boards, Office of the Secretary, Voluntary Arbitrator, Court of Appeals and the Supreme Court (4) execution and enforcement of final orders, decisions, resolutions or awards of no. (3) above shall be considered not duly filed and the party so filing shall be notified of such finding in writing by the Regional Branch Director. On his part, the Conciliator-Mediator shall convince the party concerned to voluntarily withdraw the notice without prejudice to further conciliation proceedings.

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Otherwise, he shall recommend to the Regional Branch Director that the notice be treated as a preventive mediation case. xxx xxx xxx xxx xxx xxx c. Action on Notices Involving Issues Cognizable by the Grievance Machinery, Voluntary Arbitration or the National Labor Relations Commission. i) Disputes arising from the interpretation or implementation of a collective bargaining agreement or from the interpretation or enforcement of company personnel policies shall be referred to the grievance machinery as provided for under Art. 261 of the Labor Code xxx (Emphasis supplied). As quoted earlier, Article 261 of the Labor Code mentioned in the aforequoted Section 6(c)(i), Rule VI of the NCMB Manual refers to the jurisdiction of voluntary arbitrator or panel of voluntary arbitrators "to hear and decide all unresolved grievances arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies," hence "violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the CBA." The same Article further states that the "Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment (DOLE) shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the CBA." As it were, Article 261 of the Labor Code, in relation to Section 6(c)(i), Rule VI of the NCMB Manual, provides the manner in which the NCMB must resolve notices of strike that involve non-strikeable issues. And whether the notice of strike or lockout involves inter-union or intra-union disputes, violation of labor standards laws or issues cognizable by the grievance machinery, voluntary arbitration or the NLRC, the initial step is for the NCMB to consider the notice of strike as not duly filed. Centering on disputes arising from the interpretation or implementation of a CBA or from the interpretation or enforcement of company personnel policies, following Section 6(c)(i), Rule VI, supra, of the NCMB Manual, after the declaration that the notice of strike is "not duly filed," the labor dispute is to be referred to voluntary arbitration pursuant to Article 261, supra, of the Labor Code. In short, the peculiar facts of the instant case show that the University was deprived of a remedy that would have enjoined the Union strike and was left without any recourse except to invoke the jurisdiction of the SOLE. Following Liberal, this Court will not allow the no strike, no lockout, grievance machinery and voluntary arbitration clauses found in CBAs to be circumvented by the simple expedient of filing of a notice of strike or lockout. A similar circumvention made possible by the inaction of the NCMB on the Universitys Motion to Strike Out Notice of Strike and to Refer the Dispute to Voluntary Arbitration will not be countenanced. To rule otherwise would render meaningless Articles 261 and 262 of the Labor Code, as amended, as well as the voluntary arbitration clauses found in CBAs. All told, we find no reversible error committed by the CA in rendering its assailed decision. WHEREFORE, the petition is DENIED. The Partially Amended Decision dated August 23, 2005 of the Court of Appeals in CA-G.R. SP No. 85317 is AFFIRMED. SO ORDERED. _______________ G.R. No. 118223 June 26, 1998 PNOC DOCKYARD AND ENGINEERING CORPORATION, petitioner, vs. THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION The Constitution mandates the state to afford full protection to labor. To achieve this goal, technical rules of procedure shall be liberally construed in favor of the working class in accordance with the demands of substantial justice. The Case This petition for review under Rule 65 of the Rules of Court seeks to set aside the Decision 1 dated August 12, 1993, promulgated by the National Labor Relations Commission 2 (NLRC) in NLRC NCR CC No. 000033-92, the dispositive portion of which reads: 3 WHEREFORE, premises considered, respondent PNOC-subsidiaries are declared guilty of illegal dismissal, violation of the Memorandum of Agreement dated 3 January 1992 and of unfair labor practice acts, as herein charged. Consequently, respondent companies are hereby ordered to cease and desist from further violating the terms and conditions of the parties' Memorandum of Agreement of 3 January 1992 and from further committing the unfair labor practice acts herein complained of. Individual respondent herein are hereby ordered reinstated to their former positions with full backwages from the time of their dismissals to dates of their actual reinstatements and without loss of seniority rights and benefits appurtenant thereto. In case reinstatement proves unenforceable on account of the sale of any of respondent companies, in lieu of reinstatement, the complainants concerned are hereby ordered paid their separation pay equivalent to their on (1) month's pay for every year of service, a fraction of at least six (6) months considered as one (1) whole year, in addition to the award of backwages. Respondents are hereby ordered to pay complainants their attorney's fees in the amount of not less than ten (10%) percent of the total monetary award herein. The claims of both parties herein for moral and exemplary damages and all other claims herein for lack of merit are hereby dismissed. Both parties filed their respective motions for reconsideration. Only the motion of herein private respondent was granted in a Decision 4 of the NLRC dated December 9, 1994. The decretal part thereof reads: 5 ACCORDINGLY, in view of the foregoing, this Division's Decision dated August 12, 1993 is hereby MODIFIED so that the PNOC-Dockyard and Engineering

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Corporation shall pay their employees separated because of the sale of their assets, separation benefits equivalent to two months for every year of service, as mandated by company policy and practice. The motions for reconsideration filed by Petron and its officers, PNOC-Dockyard and Shipping Corporation, PNOC Energy Development Corporation and Bataan Refines Union of the Philippines are hereby DENIED for lack of merit. The present petition likewise impugns the foregoing ruling. The Facts The solicitor general exhaustively presents there factual antecedents of the case: 6 1. On November 22, 1991, private respondent [Kapisanan ng Malayang Manggagawa-PNOC Dockyard & Engineering Corporation (KMM-PDEC)], among unions namely: Bataan Refiners Union of the Philippines (BRUP); PNOC-Energy Development Employees' Association (PEDEA); PNOC-Coal Corporation Employees' Association (PCC-ELU); and PNOC-Shipping & Transport Corp. [Employees' Association] (PSTCEA), filed with the Department of Labor and Employment (DOLE) a notice of strike against Phil. National Oil Company (PNOC) and Monico Jacob as President/Chairman, on the ground of discrimination constituting unfair labor practice (p. 2, NLRC Decision dated August 12, 1993). The dispute arose from the grant [by] petitioner and PNOC [of] the amount of P2,500.00 increase in monthly salaries to Managerial, Professionals and Technical Employees (MPT) but not to Non-Managerial, Professional and Technical Employees (NMPT). 2. On December 13, 1991, Acting Secretary Nieves Confesor certified the dispute subject of the notice of strike to the National Labor Relations Commission (NLRC) for compulsory arbitration. The certification reads in part: xxx xxx xxx WHEREFORE, IN VIEW OF THE FOREGOING, and pursuant to Article 263 (g) of the Labor Code, as amended, this Office hereby CERTIFIES the labor dispute at Phil. National Oil Company to the National Labor Relations Commission for compulsory arbitration. Accordingly, any strike or lock-out is hereby strictly enjoined. Parties are ordered to CEASE and DESIST from committing any and all acts that might exacerbate the situation. SO ORDERED. Manila, Philippines, 13 Dec. 1991. SGD. NIEVES R. CONFESOR Acting Secretary (DOLE Order dated Dec. 13, 1991, Attachment 3, Position Paper, PNOC Subsidiaries) 3. The aforequoted Order however was not served to the respondent union's President, Felimon Paglinawan, who is authorized to receive notices. Wilfredo Rojo, the process server of DOLE merely left the Order with the guard on duty at the gate of the premises which is a distance away from the union office (pp. 1011, Position Paper of respondent union, Records). 4. In the morning of December 18, 1991, the day when respondent union was poised to strike, its officers and members decided to report for work but petitioner thru its Operations Manager, Nemesio Guillermo, padlocked the gate and refused entry to the employees. Some officers and members of respondent union were able to enter the premises of petitioner and punch-in their timecards; however, they were immediately escorted back outside (pp. 4, 12, & 13, Position Paper of respondent union and its Annexes "E-1" to "E-4", Records; pp. 13-14, NLRC Decision dated Aug. 12, 1993). 5. On December 19, 1991, Acting Labor Secretary Nieves Confesor issued a return to work order, which reads in part: xxx xxx xxx WHEREFORE, ABOVE PREMISES CONSIDERED, all striking workers are hereby ordered to return to work within twenty four (24) hours form receipt of this Order and for the Company to accept them under the same terms and conditions prevailing prior to the work stoppage. Further, the directive to the parties to cease and desist from committing any and all acts that might aggravate the situation is hereby reiterated. SO ORDERED. Manila, Philippines, 19 December 1991. SGD. NIEVES CONFESOR Acting Secretary (Return to Work Order dated December 19, 1991, Attachment 4, Position Paper of PNOC Subsidiaries, Records) 6. On December 20, 1991, respondent union thru its President, Felimon Paglinawan filed before the NLRC Arbitration Branch, Region IV, a complaint against petitioner for Illegal Lock-out (Complaint dated December 20, 1991, Records). 7. On December 23, 1991, all members of the private respondent union reported and were accepted back to work (p. 5, NLRC Decision dated August 12, 1993). 8. Subsequently, petitioner filed before the DOLE a petition to declare the strike illegal with a motion to cite the striking workers in contempt for defying the DOLE Orders (p. 4, Position Paper of Petitioner, Records). Respondent union on the other hand filed a Motion to Dismiss the petition (p. 4, Position Paper for Respondent, Records). 9. On March 3, 1992, Felimon Paglinawan, Leo O. Orrica, Johnny Clariones and Generoso Mercado, Jr., the President, Secretary, Auditor and Treasurer of the respondent union, respectively, after due notice and investigation, were dismissed by petitioner from their employment on the ground, among others of their participation in the work stoppage on December 18 to 21, 1991 (p. 4, Position Paper of Respondent, Records). 10. On March 9, 1992, the aforementioned dismissed union officers filed before the NLRC a complaint for illegal dismissal. The cases were consolidated and in [the herein challenged] Decision dated August 12, 1993, public respondent ordered the reinstatement of the dismissed officers of private respondent union . . . .

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The same Decision further ruled that, where reinstatement was no longer feasible "on account of the sale of any of respondent companies," separation pay shall be awarded, equivalent to "one (1) month's pay for every year of service, a fraction of at least six (6) months considered as one (1) whole year, in addition to the award of backwages." The parties filed their respective motions for reconsideration. In its December 9, 1994 Decision, the NLRC modified its earlier disposition and ordered herein petitioner to pay its separated employees severance benefit equivalent to "two months for every year of service" in accordance with the company's established business practice. The separate motions of PNOC and its subsidiaries were all denied. Hence, this recourse 7 filed by the PNOC Dockyard and Engineering Corporation. 8 Issues Petition submits the following grounds for its petition: I. Respondent NLRC committed a grave abuse of discretion in not holding that KMM-PDEC and its officers are not guilty of illegal strike notwithstanding the provisions of Section 4, Rule XIII of the Omnibus Rules implementing the Labor Code and overwhelming evidence of their guilt. II. Respondent NLRC committee a grave abuse of discretion in not finding the termination of respondent KMM-PDEC union officers, who led the illegal strike, as legal and for just cause as clearly shown by overwhelming evidence. III. Respondent NLRC committed a grave abuse of discretion in not finding that petitioner is entitled to the award of damages. 9 The Court's Ruling The arguments of petitioner do not persuade us. We find no grave abuse of discretion committed by the NLRC in its two challenged Decisions. First Issue: The Strike Was Legal At the outset, the Court emphasizes that, under Rule 65 of the Rules of Court, its review of decisions or resolutions of quasi-judicial bodies, such as the NLRC, is confined to issues of jurisdiction and grave abuse of discretion. 10 As a rule, judicial review by this Court does not extend to a reevaluation of the factual circumstances of the case. Specialized agencies are presumed to have gained expertise on matters within their respective fields. Thus, their findings of fact, when supported by substantial evidence, are entitled to great respect and are generally rendered conclusive upon this Court, 11 except only upon a clear showing of palpable error or arbitrary disregard of evidence. A thorough examination of the records of this case reveals no reason to justify a reversal of the factual findings of the NLRC. In resolving that the strike was legal, the labor tribunal took note of the following facts: (1) the notice of strike was filed only after the union members lost hope for the redress of their grievance arising from their exclusion from the P2,500 salary increase; (2) the union members honesty believed that they were discriminated against, since the company practice in the past was to grant salary increases to all employees regardless of whether they were MPTs (managerial, professional, and technical employees) or NMPTs (non-managerial, professional, and technical employees); (3) such discriminatory grant appeared to be an unfair labor practice intended to discourage union membership, since MPTs were non-union members; and (4) the labor unions complied with the legal requirements before going on strike, such as the members' strike vote by secret ballot, the submission of the results thereof to the National Conciliation and Meditation Board (NCMB), the filing of a notice to strike and the observance of the 15-day cooling-off period. Respondent Commission opined that the unions had a reason to regard the salary discrimination, believed to discourage membership in the labor organization, as an unfair labor practice prohibited by Article 248 (e) 12 of the Labor Code. Thus, although rejecting that PNOC and its subsidiaries were guilty of discrimination, the NLRC reiterated the policy enunciated in several labor cases "that a strike does not automatically carry the stigma of illegality even if no unfair labor practice were committed by the employer. It suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a strike." 13 Indeed, the presumption of legality prevails even if the allegation of unfair labor practice is subsequently found to be untrue, 14 provided that the union and its members believed in good faith in the truth of such averment. As to the alleged violation of the strike prohibition in their CBA, the NLRC held that there should be no automatic verdict of illegality on the strike conducted. It found support from this Supreme Court ruling 15: Even on the assumption that the illegality of the strike is predicated on its being a violation of the ban or prohibition of strike in export-oriented industries, lack of notice to strike, and as a violation of the no-strike clause of the CBA, still, the automatic finding of the illegality of the strike finds no authoritative support in the light of the attendant circumstances. As this Court held in Cebu Portland Cement Co. vs. Cement Workers Union [25 SCRA 504], a strike staged by the workers, inspired by good faith, does not automatically make the same illegal. In Ferrer vs. Court of Industrial Relations [17 SCRA 352], the belief of the strikers that the management was committing unfair labor practice was properly considered in declaring an otherwise premature strike, not unlawful, and in affirming the older of the Labor Court for the reinstatement without backwages of said employees. The NLRC noted further that the strike was peaceful and orderly, unmarred by any form of violence or untoward incident. As to the alleged transgression by respondent unions of Section 4, Rule XIII of the Omnibus Rules Implementing the Labor Code, we agree with Respondent Commission that there actually was substantial compliance thereof. The aforesaid provision reads: Sec. 4 Contents of notice. The notice shall state, among other, the names and addresses of the employers and the union involved, the nature of the industry to which the employer belongs, the number of union members and of the workers in the bargaining unit, and such other relevant data as may facilitate the settlement of the dispute, such as a brief statement or enumeration of all pending labor dispute involving the same parties.

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In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-proposals of the employer and the proof of a request for conference to settle the differences. In cases of unfair labor practices, the notice shall, as far as practicable, state the acts complained of and the efforts taken to resolve the dispute amicably. Any notice which does not conform with the requirements of this and the foregoing sections shall be deemed as not having been filed and the party concerned shall be so informed by the regional branch of the Board. Petitioner argues that the notice of strike was invalid, since (1) it erroneously named PNOC as the employer, which is actually a corporate entity separate and distinct from petitioner; (2) it did not indicate the specific acts which respondent union considered as unfair labor practices; and (3) there was no reasonable attempt or effort on the part of respondent union to amicably settle the alleged labor dispute. The NLRC ruled, and we agree, that respondent union merely committed an honest mistake, because it appears on record that PNOC has the same set of corporate officers as petitioner; 16 and matters as to wages and other official policies all emanated from PNOC, the mother company. The unrebutted testimony of Leo O. Orrica further attests to the fact that the employees concerned repeatedly brought to the attention of the management the discriminatory grant of salary increase, but the latter failed to address the grievance of the NMPTs or to satisfactorily explain such grant to MPTs only, except to say that it was management's prerogative. 17 Lastly, we agree with the solicitor general that, under the circumstances, there was sufficient indication of the nature and cause of the labor dispute subject of the notice of strike unfair labor practice in the form of discrimination. The unions merely filled out the standard form furnished for the purpose by the Department of Labor and Employment, and they were indeed not expected to write in detail the history of their dispute. By supplying the information required in the DOLE form and submitting the other explicitly required documents, respondent unions have substantially complied with the law. A well-recognized norm in labor law is that technical rules of procedure are not to be strictly interpreted and applied in a manner that would defeat substantial justice or be unduly detrimental to the work force. Rules may be relaxed in order to give full meaning to the constitutional mandate of affording full protection to labor. 18 As provided in Article 4 of the Labor Code, "all doubts in the implementation and interpretation of this Code, including its implementing rules and regulations, shall be rendered in favor of labor." 19 In addition, we disagree with petitioner's contention that the strike became automatically illegal upon the labor secretary's certification of the dispute to the NLRC for compulsory arbitration. Basic is the rule that no order, decision or resolution not even one that is "immediately executory" is binding and automatically executory unless and until the proper parties are duly notified thereof. 20 The labor Code specifically enjoins that decisions, orders or awards of the labor secretary, the regional director, the NLRC or the labor arbiter are "to [be] separately furnish[ed] immediately [to] the counsels of record and the parties . . . ." 21 This means that in labor cases, boththe party and its counsel must be duly served their separate copies of the order, decision or resolution; unlike in ordinary judicial proceedings where notice to counsel is deemed notice to the party. 22 Private respondent precisely impugn the validity of the service of the DOLE certification order dated December 13, 191. They maintain that said order was not validly served on them, since their supposed copy was left only with a security guard at the gate of the office premises of the union. Allegedly, no effort was made to serve the same to an authorized person inside their office. The service of the order upon counsel for the umbrella union FUEL-GAS should not be deemed a valid service upon Respondent KMM-PDEC, which had its own counsel of record, Atty. Tomas Caspe, who appeared before the NCMB. Besides, the law requires service to both the counsel and the parties. It has also been previously held that service to a security guard of the building where the principal holds office is not a valid service. 23 Nevertheless, upon verified information of the existence of the certification order, members of respondent labor unions promptly ended their strike and returned to their jobs. All in all, we find that the conclusions of Respondent NLRC on the legality of the strike are in accordance with law and jurisprudence. Petitioner has failed to show grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the NLRC. Second Issue: The Dismissals Were Illegal Having ruled that the strike staged by respondent unions was legal, the subsequent dismissals of their officers due to their staging of said strike cannot be countenanced. The NLRC correctly observed that, although petitioner averred that the dismissals of individual respondent were due to infractions of company rules and regulations, the alleged infractions actually arose from their participation in the strike. This is crystal clear from the charges leveled against the union officers, such as "active participation in the illegal work stoppage." "disruption of company operations resulting [in] losses." "violation of the 'NO STRIKE' clause of the existing CBA," among others, cited in their similarly worded notices of investigation that eventually led to their dismissals. Furthermore, such investigations conducted by petitioner were in flagrant disregard of the authority and jurisdiction of Respondent Commission and in defiance of the Memorandum of Agreement 24 with the striking unions, executed upon the order of then acting Labor Secretary Nieves R. Confesor. The issues relating to the strike and lockout were already submitted before the NLRC through the corresponding complaints filed by petitioner itself and private respondents. By filing a formal complaint for illegal strike, it behooved petitioner to desist from undertaking its own investigation on the same matter, concluding upon the illegality of the union activity and dismissing outright the union officers involved. The latter objected, in fact, to the conduct of such investigations precisely due to the pendency before the NLRC of an action based on the same

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grounds. Instead, petitioner preempted the NLRC from ascertaining the merits of the complaints. Moreover, the Memorandum of Agreement, other than enjoining the striking workers to return to work, likewise ordered the management to "accept them under the same terms and conditions prevailing prior to the work stoppage," and ruled that the matter of "staggered" wage and holiday pay deductions for the strike period be discussed in the labor-management committee (LMC). In glaring defiance, petitioner arbitrarily undertook to change the work schedule of some employee on the very day they resumed work, aside from deducting in full the wages and holiday pays of the striking employees pertaining to the strike period, even before the LMC could convene. The actions of petitioner are clearly tainted with abuse of power and with illegality. While we recognize the prerogative of management to regulate all aspects of employment, the power to discipline and terminate an employee's services may not exercised in a despotic or whimsical manner as to erode or render meaningless the constitutional guarantees of security of tenure and due process. 25 Time and again, we have held that the employment status of workers cannot be trifled with, such that their constitutional and statutory rights as well as those arising from valid agreements will, in effect, be defeated or circumvented. No less than the Constitution itself guarantees state protection of labor and assures workers of security of tenure in their employment. 26 Third Issue: Damages The actual and exemplary damages sought by petitioner have no basis in law, much less in equity and fair play. From the foregoing discussion, the strike was staged by respondent unions in the honest belief that petitioner, among the other PNOC subsidiaries involved, was guilty of unfair labor practice due to the discrimination in the grant of salary increase believed to discourage union membership, and to its refusal to bargain collectively on the matter. There was good faith on the part of the striking unions. Thus, they cannot be penalized by imposing upon them payment of damages. WHEREFORE, the petition is hereby DISMISSED. The assailed Decisions are AFFIRMED. SO ORDERED. _______________ Lacking one casethe last one. Maybe I got the wrong case title =(