PHIMCO INDUSTRIES, INC., G.R. No.

170830
Petitioner,
Present:
- versus -
CARPIO MORALES, J., Chairperson
PHIMCO INDUSTRIES LABOR BRION,
ASSOCIATION (PILA), and BERSAMIN,
ERLINDA VAZQUEZ, RICARDO ABAD, and
SACRISTAN, LEONIDA CATALAN, VILLARAMA, JR., JJ.
MAXIMO PEDRO, NATHANIELA
DIMACULANGAN,* RODOLFO
MOJICO, ROMEO CARAMANZA, Promulgated:
REYNALDO GANITANO, ALBERTO
BASCONCILLO,** and RAMON August 11, 2010
FALCIS, in their capacity as officers
of PILA, and ANGELITA BALOSA,***
DANILO BANAAG, ABRAHAM
CADAY, ALFONSO CLAUDIO,
FRANCISCO DALISAY,****
ANGELITO DEJAN,***** PHILIP
GARCES, NICANOR ILAGAN,
FLORENCIO LIBONGCOGON,******
NEMESIO MAMONONG, TEOFILO
MANALILI, ALFREDO PEARSON,*******
MARIO PEREA,******** RENATO
RAMOS, MARIANO ROSALES,
PABLO SARMIENTO, RODOLFO
TOLENTINO, FELIPE VILLAREAL,
ARSENIO ZAMORA, DANILO
BALTAZAR, ROGER CABER,*********
REYNALDO CAMARIN, BERNARDO
CUADRA,********** ANGELITO DE
GUZMAN, GERARDO FELICIANO,***********
ALEX IBAEZ, BENJAMIN JUAN, SR.,
RAMON MACAALAY, GONZALO
MANALILI, RAUL MICIANO,
HILARIO PEA, TERESA
PERMOCILLO,************ ERNESTO RIO,
RODOLFO SANIDAD, RAFAEL
STA. ANA, JULIAN TUGUIN and AMELIA
ZAMORA, as members of PILA,
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION

BRION, J.:

Before us is the petition for review on certiorari[1] filed by petitioner Phimco

Industries, Inc. (PHIMCO), seeking to reverse and set aside the decision,[2] dated
February 10, 2004, and the resolution,[3] dated December 12, 2005, of the Court of
Appeals (CA) in CA-G.R. SP No. 70336. The assailed CA decision dismissed
PHIMCOs petition for certiorari that challenged the resolution, dated December 29,
1998, and the decision, dated February 20, 2002, of the National Labor Relations
Commission (NLRC); the assailed CA resolution denied PHIMCOs subsequent
motion for reconsideration.

FACTUAL BACKGROUND

The facts of the case, gathered from the records, are briefly summarized
below.

PHIMCO is a corporation engaged in the production of matches, with

principal address at Phimco Compound, Felix Manalo St., Sta. Ana, Manila.
Respondent Phimco Industries Labor Association (PILA) is the duly authorized
bargaining representative of PHIMCOs daily-paid workers. The 47 individually
named respondents are PILA officers and members.

When the last collective bargaining agreement was about to expire on

December 31, 1994, PHIMCO and PILA negotiated for its renewal. The negotiation
resulted in a deadlock on economic issues, mainly due to disagreements on salary
increases and benefits.
 On March 9, 1995, PILA filed with the National Conciliation and Mediation
Board (NCMB) a Notice of Strike on the ground of the bargaining deadlock. Seven
(7) days later, or on March 16, 1995, the union conducted a strike vote; a majority
of the union members voted for a strike as its response to the bargaining impasse.
On March 17, 1995, PILA filed the strike vote results with the NCMB. Thirty-five
(35) days later, or on April 21, 1995, PILA staged a strike.

On May 3, 1995, PHIMCO filed with the NLRC a petition for preliminary
injunction and temporary restraining order (TRO), to enjoin the strikers from
preventing through force, intimidation and coercion the ingress and egress of non-
striking employees into and from the company premises. On May 15, 1995, the
NLRC issued an ex-parte TRO, effective for a period of twenty (20) days, or until
June 5, 1995.

On June 23, 1995, PHIMCO sent a letter to thirty-six (36) union members,
directing them to explain within twenty-four (24) hours why they should not be
dismissed for the illegal acts they committed during the strike. Three days later, or
on June 26, 1995, the thirty-six (36) union members were informed of their
dismissal.

On July 6, 1995, PILA filed a complaint for unfair labor practice and illegal
dismissal (illegal dismissal case) with the NLRC. The case was docketed as NLRC
NCR Case No. 00-07-04705-95, and raffled to Labor Arbiter (LA) Pablo C. Espiritu,
Jr.

On July 7, 1995, then Acting Labor Secretary Jose S. Brillantes assumed

jurisdiction over the labor dispute, and ordered all the striking employees (except
those who were handed termination papers on June 26, 1995) to return to work
within twenty-four (24) hours from receipt of the order. The Secretary ordered
PHIMCO to accept the striking employees, under the same terms and conditions
prevailing prior to the strike.[4] On the same day, PILA ended its strike.

On August 28, 1995, PHIMCO filed a Petition to Declare the Strike Illegal
(illegal strike case) with the NLRC, with a prayer for the dismissal of PILA officers
and members who knowingly participated in the illegal strike. PHIMCO claimed
that the strikers prevented ingress to and egress from the PHIMCO compound,
thereby paralyzing PHIMCOs operations. The case was docketed as NLRC NCR
Case No. 00-08-06031-95, and raffled to LA Jovencio Ll. Mayor.

On March 14, 1996, the respondents filed their Position Paper in the illegal
strike case. They countered that they complied with all the legal requirements for the
staging of the strike, they put up no barricade, and conducted their strike peacefully,
in an orderly and lawful manner, without incident.

LA Mayor decided the case on February 4, 1998,[5] and found the strike
illegal; the respondents committed prohibited acts during the strike by blocking the
ingress to and egress from PHIMCOs premises and preventing the non-striking
employees from reporting for work. He observed that it was not enough that the
picket of the strikers was a moving picket, since the strikers should allow the free
passage to the entrance and exit points of the company premises. Thus, LA Mayor
declared that the respondent employees, PILA officers and members, have lost their
employment status.

On March 5, 1998, PILA and its officers and members appealed LA Mayors
decision to the NLRC.

THE NLRC RULING

 The NLRC decided the appeal on December 29, 1998, and set aside LA
Mayors decision.[6] The NLRC did not give weight to PHIMCOs evidence, and
relied instead on the respondents evidence showing that the union conducted a
peaceful moving picket.

On January 28, 1999, PHIMCO filed a motion for reconsideration in the

illegal strike case.[7]

In a parallel development, LA Espiritu decided the unions illegal dismissal

case on March 2, 1999. He ruled the respondents dismissal as illegal, and ordered
their reinstatement with payment of backwages. PHIMCO appealed LA Espiritus
decision to the NLRC.

Pending the resolution of PHIMCOs motion for reconsideration in the illegal

strike case and the appeal of the illegal dismissal case, PHIMCO moved for the
consolidation of the two (2) cases. The NLRC acted favorably on the motion and
consolidated the two (2) cases in its Order dated August 5, 1999.

On February 20, 2002, the NLRC rendered its Decision in the consolidated
cases, ruling totally in the unions favor.[8] It dismissed the appeal of the illegal
dismissal case, and denied PHIMCOs motion for reconsideration in the illegal strike
case. The NLRC found that the picket conducted by the striking employees was not
an illegal blockade and did not obstruct the points of entry to and exit from the
companys premises; the pictures submitted by the respondents revealed that the
picket was moving, not stationary. With respect to the illegal dismissal charge, the
NLRC observed that the striking employees were not given ample opportunity to
explain their side after receipt of the June 23, 1995 letter. Thus, the NLRC affirmed
the Decision of LA Espiritu with respect to the payment of backwages until the
promulgation of the decision, plus separation pay at one (1) month salary per year
of service in lieu of reinstatement, and 10% of the monetary award as attorneys fees.
It ruled out reinstatement because of the damages sustained by the company brought
about by the strike.

On March 14, 2002, PHIMCO filed a motion for reconsideration of the

consolidated decision.

On April 26, 2002, without waiting for the result of its motion for
reconsideration, PHIMCO elevated its case to the CA through a petition
for certiorari under Rule 65 of the Rules of Court.[9]

THE CA RULING

In a Decision[10] promulgated on February 10, 2004, the CA dismissed

PHIMCOs petition for certiorari. The CA noted that the NLRC findings, that the
picket was peaceful and that PHIMCOs evidence failed to show that the picket
constituted an illegal blockade or that it obstructed the points of entry to and exit
from the company premises, were supported by substantial evidence.

PHIMCO came to us through the present petition after the CA

denied[11] PHIMCOs motion for reconsideration.[12]

THE PETITION

The petitioner argues that the strike was illegal because the respondents
committed the prohibited acts under Article 264(e) of the Labor Code, such as
blocking the ingress and egress of the company premises, threat, coercion, and
intimidation, as established by the evidence on record.

THE CASE FOR THE RESPONDENTS

 The respondents, on the other hand, submit that the issues raised in this case
are factual in nature that we cannot generally touch in a petition for review, unless
compelling reasons exist; the company has not shown any such compelling reason
as the picket was peaceful and uneventful, and no human barricade blocked the
company premises.

THE ISSUE

In Montoya v. Transmed Manila Corporation,[13] we laid down the basic approach

that should be followed in the review of CA decisions in labor cases, thus:
In a Rule 45 review, we consider the correctness of the assailed CA decision, in
contrast with the review for jurisdictional error that we undertake under Rule 65.
Furthermore, Rule 45 limits us to the review of questions of law raised against the
assailed CA decision. In ruling for legal correctness, we have to view the CA
decision in the same context that the petition for certiorari it ruled upon was
presented to it; we have to examine the CA decision from the prism of whether it
correctly determined the presence or absence of grave abuse of discretion in the
NLRC decision before it, not on the basis of whether the NLRC decision on the
merits of the case was correct. In other words, we have to be keenly aware that the
CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision
challenged before it. This is the approach that should be basic in a Rule 45 review
of a CA ruling in a labor case. In question form, the question to ask is: Did the CA
correctly determine whether the NLRC committed grave abuse of discretion in
ruling on the case?

In this light, the core issue in the present case is whether the CA correctly
ruled that the NLRC did not act with grave abuse of discretion in ruling that the
unions strike was legal.

OUR RULING

We find the petition partly meritorious.

Requisites of a valid strike

 A strike is the most powerful weapon of workers in their struggle with
management in the course of setting their terms and conditions of
employment. Because it is premised on the concept of economic war between labor
and management, it is a weapon that can either breathe life to or destroy the union
and its members, and one that must also necessarily affect management and its
members.[14]

In light of these effects, the decision to declare a strike must be exercised

responsibly and must always rest on rational basis, free from emotionalism, and
unswayed by the tempers and tantrums of hot heads; it must focus on legitimate
union interests. To be legitimate, a strike should not be antithetical to public welfare,
and must be pursued within legal bounds. The right to strike as a means of attaining
social justice is never meant to oppress or destroy anyone, least of all, the
employer.[15]
Since strikes affect not only the relationship between labor and management
but also the general peace and progress of the community, the law has provided
limitations on the right to strike. Procedurally, for a strike to be valid, it must comply
with Article 263[16] of the Labor Code, which requires that: (a) a notice of strike be
filed with the Department of Labor and Employment (DOLE) 30 days before the
intended date thereof, or 15 days in case of unfair labor practice; (b) a strike vote be
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; and (c) a
notice be given to the DOLE of the results of the voting at least seven days before
the intended strike.

These requirements are mandatory, and the unions failure to comply renders
the strike illegal.[17] The 15 to 30-day cooling-off period is designed to afford the
parties the opportunity to amicably resolve the dispute with the assistance of the
NCMB conciliator/mediator, while the seven-day strike ban is intended to give the
DOLE an opportunity to verify whether the projected strike really carries the
imprimatur of the majority of the union members.[18]
In the present case, the respondents fully satisfied the legal procedural
requirements; a strike notice was filed on March 9, 1995; a strike vote was reached
on March 16, 1995; notification of the strike vote was filed with the DOLE on March
17, 1995; and the actual strike was launched only on April 25, 1995.

Strike may be illegal for commission

of prohibited acts

Despite the validity of the purpose of a strike and compliance with the
procedural requirements, a strike may still be held illegal where the means
employed are illegal.[19]The means become illegal when they come within the
prohibitions under Article 264(e) of the Labor Code which provides:
No person engaged in picketing shall commit any act of violence, coercion
or intimidation or obstruct the free ingress to or egress from the employer's premises
for lawful purposes, or obstruct public thoroughfares.

Based on our examination of the evidence which the LA viewed

differently from the NLRC and the CA, we find the PILA strike illegal. We
intervene and rule even on the evidentiary and factual issues of this case as both the
NLRC and the CA grossly misread the evidence, leading them to inordinately
incorrect conclusions, both factual and legal. While the strike undisputably had not
been marred by actual violence and patent intimidation, the picketing that respondent
PILA officers and members undertook as part of their strike activities effectively
blocked the free ingress to and egress from PHIMCOs premises, thus preventing
non-striking employees and company vehicles from entering the PHIMCO
compound. In this manner, the picketers violated Article 264(e) of the Labor Code.
The Evidence

We gather from the case record the following pieces of relevant evidence adduced
in the compulsory arbitration proceedings.[20]

For the Company

1. Pictures taken during the strike, showing that the respondents

prevented free ingress to and egress from the company premises;[21]
2. Affidavit of PHIMCO Human Resources Manager Francis Ferdinand
Cinco, stating that he was one of the employees prevented by the strikers from
entering the PHIMCO premises;[22]
3. Affidavit of Cinco, identifying Erlinda Vazquez, Ricardo
Sacristan, Leonida Catalan, Maximo Pedro, Nathaniela R. Dimaculangan, Rodolfo
Mojico, Romeo Caramanza, Reynaldo Ganitano, Alberto Basconcillo, and Ramon
Falcis as PILA officers;[23]
4. Affidavit of Cinco identifying other members of PILA;[24]
5. Folder 1, containing pictures taken during the strike identifying and
showing Leonida Catalan, Renato Ramos, Arsenio Zamora, Reynaldo Ganitano,
Amelia Zamora, Angelito Dejan, Teresa Permocillo, and Francisco Dalisay as the
persons preventing Cinco and his group from entering the company premises;[25]
6. Folder 2, with pictures taken on May 30, 1995, showing Cinco,
together with non-striking PHIMCO employees, reporting for work but being
refused entry by strikers Teofilo Manalili, Nathaniela Dimaculangan, Bernando
Cuadra, Maximo Pedro, Nicanor Ilagan, Julian Tuguin, Nemesio Mamonong,
Abraham Caday, Ernesto Rio, Benjamin Juan, Sr., Ramon Macaalay, Gerardo
Feliciano, Alberto Basconcillo, Rodolfo Sanidad, Mariano Rosales, Roger Caber,
Angelito de Guzman, Angelito Balosa and Philip Garces who blocked the company
gate;[26]
 7. Folder 3, with pictures taken on May 30, 1995, showing the
respondents denying free ingress to and egress from the company premises;[27]
8. Folder 4, with pictures taken during the strike, showing that non-
striking employees failed to enter the company premises as a result of the
respondents refusal to let them in;[28]
9. Affidavit of Joaquin Aguilar stating that the pictures presented by
Cinco were taken during the strike;[29]
10. Pictures taken by Aguilar during the strike, showing non-striking
employees being refused entry by the respondents;[30]
11. Joint affidavit of Orlando Marfil and Rodolfo Digo, identifying the
pictures they took during the strike, showing that the respondents blocked ingress to
and egress from the company premises;[31] and,
12. Testimonies of PHIMCO employees Rodolfo Eva, Aguilar and Cinco,
as well as those of PILA officers Maximo Pedro and Leonida Catalan.

For the Respondents

1. Affidavit of Leonida Catalan, stating that the PILA strike complied with
all the legal requirements, and the strike/picket was conducted peacefully with no
incident of any illegality;[32]
2. Affidavit of Maximo Pedro, stating that the strike/picket was
conducted peacefully; the picket was always moving with no acts of illegality having
been committed during the strike;[33]
3. Certification of Police Station Commander Bienvenido de los Reyes
that during the strike there was no report of any untoward incident;[34]
4. Certification of Rev. Father Erick Adeviso of Dambanang Bayan
Parish Church that the strike was peaceful and without any untoward incident;[35]
5. Certification of Priest-In-Charge Angelito Fausto of the Philippine
Independent Church in Punta, Santa Ana, that the strike complied with all the
requirements for a lawful strike, and the strikers conducted themselves in a peaceful
manner;[36]
6. Clearance issued by Punong Barangay Mario O. dela Rosa
and Barangay Secretary Pascual Gesmundo, Jr. that the strike from April 21 to July
7, 1995 was conducted in an orderly manner with no complaints filed;[37] and,
7. Testimonies at the compulsory arbitration proceedings.

In its resolution of December 29, 1998,[38] the NLRC declared that the string
of proofs the company presented was overwhelmingly counterbalanced by the
numerous pieces of evidence adduced by respondents x x x all depicting a common
story that respondents put up a peaceful moving picket, and did not commit any
illegal acts x x xspecifically obstructing the ingress to and egress from the company
premises[.][39]

We disagree with this finding as the purported peaceful moving picket upon
which the NLRC resolution was anchored was not an innocuous picket, contrary to
what the NLRC said it was; the picket, under the evidence presented, did effectively
obstruct the entry and exit points of the company premises on various occasions.

To strike is to withhold or to stop work by the concerted action of employees

as a result of an industrial or labor dispute.[40] The work stoppage may be
accompanied by picketing by the striking employees outside of the company
compound. While a strike focuses on stoppage of work, picketing focuses on
publicizing the labor dispute and its incidents to inform the public of what is
happening in the company struck against. A picket simply means to march to and
from the employers premises, usually accompanied by the display of placards and
other signs making known the facts involved in a labor dispute.[41] It is a strike
activity separate and different from the actual stoppage of work.
 While the right of employees to publicize their dispute falls within the
protection of freedom of expression[42] and the right to peaceably assemble to air
grievances,[43]these rights are by no means absolute. Protected picketing does not
extend to blocking ingress to and egress from the company premises. [44] That the
picket was moving, was peaceful and was not attended by actual violence may not
free it from taints of illegality if the picket effectively blocked entry to and exit from
the company premises.

In this regard, PHIMCO employees Rodolfo Eva and Joaquin Aguilar, and the
companys Human Resources Manager Francis Ferdinand Cinco testified during the
compulsory arbitration hearings:

ATTY. REYES: this incident on May 22, 1995, when a coaster or bus attempted to
enter PHIMCO compound, you mentioned that it was refused entry. Why
was this (sic) it refused entry?

WITNESS: Because at that time, there was a moving picket at the gate that is why
the bus was not able to enter.[45]

xxxx

Q: Despite this TRO, which was issued by the NLRC, were you allowed entry by
the strikers?

A: We made several attempts to enter the compound, I remember on May 7, 1995,

we tried to enter the PHIMCO compound but we were not allowed entry.

Q: Aside from May 27, 1995, were there any other instances wherein you were not
allowed entry at PHIMCO compound?

A: On May 29, I recall I was riding with our Production Manager with the Pick-up.
We tried to enter but we were not allowed by the strikers.[46]

xxxx

ARBITER MAYOR: How did the strikers block the ingress of the company?

A: They hold around, joining hands, moving picket.[47]

xxxx
 ARBITER MAYOR: Reform the question, and because of that moving picket
conducted by the strikers, no employees or vehicles can come in or go out
of the premises?

A: None, sir.[48]

These accounts were confirmed by the admissions of respondent PILA

officers Maximo Pedro and Leonida Catalan that the strikers prevented non-striking
employees from entering the company premises. According to these union officers:
ATTY. CHUA: Mr. witness, do you recall an incident when a group of managers
of PHIMCO, with several of the monthly paid employees who tried to enter
the PHIMCO compound during the strike?

MR. PEDRO: Yes, sir.

ATTY. CHUA: Can you tell us if these (sic) group of managers headed by Francis
Cinco entered the compound of PHIMCO on that day, when they tried to
enter?

MR. PEDRO: No, sir. They were not able to enter.[49]

xxxx

ATTY. CHUA: Despite having been escorted by police Delos Reyes, you still did
not give way, and instead proceeded with your moving picket?

MR. PEDRO: Yes, sir.

ATTY. CHUA: In short, these people were not able to enter the premises of
PHIMCO, Yes or No.

MR. PEDRO: Yes, sir. [50]

xxxx

ATTY. CHUA: Madam witness, even if Major Delos Reyes instructed you to give
way so as to allow the employees and managers to enter the premises, you
and your co-employees did not give way?

MS. CATALAN: No sir.

 ATTY. CHUA: the managers and the employees were not able to enter the
premises?

MS. CATALAN: Yes, sir.[51]

The NLRC resolution itself noted the above testimonial evidence, all building
up a scenario that the moving picket put up by [the] respondents obstructed the
ingress to and egress from the company premises[,][52] yet it ignored the clear import
of the testimonies as to the true nature of the picket. Contrary to the NLRC
characterization that it was a peaceful moving picket, it stood, in fact, as an
obstruction to the companys points of ingress and egress.

Significantly, the testimonies adduced were validated by the photographs

taken of the strike area, capturing the strike in its various stages and showing how
the strikers actually conducted the picket. While the picket was moving, it was
maintained so close to the company gates that it virtually constituted an obstruction,
especially when the strikers joined hands, as described by Aguilar, or were moving
in circles, hand-to-shoulder, as shown by the photographs, that, for all intents and
purposes, blocked the free ingress to and egress from the company premises. In fact,
on closer examination, it could be seen that the respondents were conducting the
picket right at the company gates.[53]

The obstructive nature of the picket was aggravated by the placement of

benches, with strikers standing on top, directly in front of the open wing of the
company gates, clearly obstructing the entry and exit points of the company
compound.[54]

With a virtual human blockade and real physical obstructions (benches and
makeshift structures both outside and inside the gates),[55] it was pure conjecture on
the part of the NLRC to say that [t]he non-strikers and their vehicles were x x x free
to get in and out of the company compound undisturbed by the picket
line.[56] Notably, aside from non-strikers who wished to report for work, company
vehicles likewise could not enter and get out of the factory because of the picket and
the physical obstructions the respondents installed. The blockade went to the point
of causing the build up of traffic in the immediate vicinity of the strike area, as shown
by photographs.[57] This, by itself, renders the picket a prohibited activity. Pickets
may not aggressively interfere with the right of peaceful ingress to and egress from
the employers shop or obstruct public thoroughfares; picketing is not peaceful where
the sidewalk or entrance to a place of business is obstructed by picketers parading
around in a circle or lying on the sidewalk.[58]

What the records reveal belies the NLRC observation that the
evidence x x x tends to show that what respondents actually did was walking or
patrolling to and fro within the company vicinity and by word of mouth, banner or
placard, informing the public concerning the dispute.[59]

The peaceful moving picket that the NLRC noted, influenced apparently by
the certifications (Mayor delos Reyes, Fr. Adeviso, Fr. Fausto
and Barangay Secretary Gesmundo presented in evidence by the respondents, was
peaceful only because of the absence of violence during the strike, but the
obstruction of the entry and exit points of the company premises caused by the
respondents picket was by no means a petty blocking act or an insignificant
obstructive act.[60]

As we have stated, while the picket was moving, the movement was in circles,
very close to the gates, with the strikers in a hand-to-shoulder formation without a
break in their ranks, thus preventing non-striking workers and vehicles from coming
in and getting out. Supported by actual blocking benches and obstructions, what the
union demonstrated was a very persuasive and quietly intimidating strategy whose
chief aim was to paralyze the operations of the company, not solely by the work
stoppage of the participating workers, but by excluding the company officials and
non-striking employees from access to and exit from the company premises. No
doubt, the strike caused the company operations considerable damage, as the NLRC
itself recognized when it ruled out the reinstatement of the dismissed strikers.[61]

Intimidation

Article 264(e) of the Labor Code tells us that picketing carried on with violence,
coercion or intimidation is unlawful.[62] According to American jurisprudence, what
constitutes unlawful intimidation depends on the totality of the
circumstances.[63] Force threatened is the equivalent of force exercised. There may
be unlawful intimidation without direct threats or overt acts of violence. Words or
acts which are calculated and intended to cause an ordinary person to fear an injury
to his person, business or property are equivalent to threats.[64]

The manner in which the respondent union officers and members conducted the
picket in the present case had created such an intimidating atmosphere that non-
striking employees and even company vehicles did not dare cross the picket line,
even with police intervention. Those who dared cross the picket line were
stopped. The compulsory arbitration hearings bear this out.

Maximo Pedro, a PILA officer, testified, on July 30, 1997, that a group of
PHIMCO managers led by Cinco, together with several monthly-paid employees,
tried to enter the company premises on May 27, 1995 with police escort; even then,
the picketers did not allow them to enter.[65]Leonida Catalan, another union officer,
testified that she and the other picketers did not give way despite the instruction of
Police Major de los Reyes to the picketers to allow the group to enter the company
premises.[66] (To be sure, police intervention and participation are, as a rule,
prohibited acts in a strike, but we note this intervention solely as indicators of how
far the union and its members have gone to block ingress to and egress from the
company premises.)
Further, PHIMCO employee Rodolfo Eva testified that on May 22, 1995, a company
coaster or bus attempted to enter the PHIMCO compound but it was refused entry
by the moving picket.[67] Cinco, the company personnel manager, also testified that
on May 27, 1995, when the NLRC TRO was in force, he and other employees tried
to enter the PHIMCO compound, but they were not allowed entry; on May 29, 1995,
Cinco was with the PHIMCO production manager in a pick-up and they tried to enter
the company compound but, again, they were not allowed by the strikers. [68] Another
employee, Joaquin Aguilar, when asked how the strikers blocked the ingress of the
company, replied that the strikers hold around, joining hands, moving picket and,
because of the moving picket, no employee or vehicle could come in and go out of
the premises.[69]

The evidence adduced in the present case cannot be ignored. On balance, it

supports the companys submission that the respondent PILA officers and members
committed acts during the strike prohibited under Article 264(e) of the Labor
Code. The testimonies of non-striking employees, who were prevented from gaining
entry into the company premises, and confirmed no less by two officers of the union,
are on record.

The photographs of the strike scene, also on record, depict the true character
of the picket; while moving, it, in fact, constituted a human blockade, obstructing
free ingress to and egress from the company premises, reinforced by benches planted
directly in front of the company gates. The photographs do not lie these photographs
clearly show that the picketers were going in circles, without any break in their ranks
or closely bunched together, right in front of the gates. Thus, company vehicles were
unable to enter the company compound, and were backed up several meters into the
street leading to the company gates.

Despite all these clear pieces of evidence of illegal obstruction, the NLRC
looked the other way and chose not to see the unmistakable violations of the law on
strikes by the union and its respondent officers and members. Needless to say, while
the law protects the rights of the laborer, it authorizes neither the oppression nor the
destruction of the employer.[70] For grossly ignoring the evidence before it, the
NLRC committed grave abuse of discretion; for supporting these gross NLRC errors,
the CA committed its own reversible error.

Liabilities of union
officers and members

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

Any union officer who knowingly participates in an illegal strike and any worker
or union officer who knowingly participates in the commission of illegal acts during
a strike may be declared to have lost his employment status: Provided, That mere
participation of a worker in a lawful strike shall not constitute sufficient ground for
termination of his employment, even if a replacement had been hired by the
employer during such lawful strike.

We explained in Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v.

Sulpicio Lines, Inc.[71] that the effects of illegal strikes, outlined in Article 264 of the
Labor Code, make a distinction between participating workers and union
officers. The services of an ordinary striking worker cannot be terminated for mere
participation in an illegal strike; proof must be adduced showing that he or she
committed illegal acts during the strike. The services of a participating union officer,
on the other hand, may be terminated, not only when he actually commits an illegal
act during a strike, but also if he knowingly participates in an illegal strike.[72]

In all cases, the striker must be identified. But proof beyond reasonable doubt
is not required; substantial evidence, available under the attendant circumstances,
suffices to justify the imposition of the penalty of dismissal on participating workers
and union officers as above described.[73]

In the present case, respondents Erlinda Vazquez, Ricardo Sacristan, Leonida

Catalan, Maximo Pedro, Nathaniela Dimaculangan, Rodolfo Mojico, Romeo
Caramanza, Reynaldo Ganitano, Alberto Basconcillo, and Ramon Falcis stand to be
dismissed as participating union officers, pursuant to Article 264(a), paragraph 3,
of the Labor Code.This provision imposes the penalty of dismissal on any union
officer who knowingly participates in an illegal strike. The law grants the employer
the option of declaring a union officer who participated in an illegal strike as having
lost his employment.[74]

PHIMCO was able to individually identify the participating union

members thru the affidavits of PHIMCO employees Martimer Panis[75] and Rodrigo
A. Ortiz,[76] and Personnel Manager Francis Ferdinand Cinco,[77] and the
photographs[78] of Joaquin Aguilar. Identified were respondents Angelita Balosa,
Danilo Banaag, Abraham Caday, Alfonso Claudio, Francisco Dalisay, Angelito
Dejan, Philip Garces, Nicanor Ilagan, Florencio Libongcogon, Nemesio Mamonong,
Teofilo Manalili, Alfredo Pearson, Mario Perea, Renato Ramos, Mariano Rosales,
Pablo Sarmiento, Rodolfo Tolentino, Felipe Villareal, Arsenio Zamora, Danilo
Baltazar, Roger Caber, Reynaldo Camarin, Bernardo Cuadra, Angelito de Guzman,
Gerardo Feliciano, Alex Ibaez, Benjamin Juan, Sr., Ramon Macaalay, Gonzalo
Manalili, Raul Miciano, Hilario Pea, Teresa Permocillo, Ernesto Rio, Rodolfo
Sanidad, Rafael Sta. Ana, Julian Tuguin and Amelia Zamora as the union members
who actively participated in the strike by blocking the ingress to and egress from the
company premises and preventing the passage of non-striking employees. For
participating in illegally blocking ingress to and egress from company premises,
these union members stand to be dismissed for their illegal acts in the conduct of the
unions strike.
PHIMCO failed to observe due
process

We find, however, that PHIMCO violated the requirements of due process of

the Labor Code when it dismissed the respondents.

Under Article 277(b)[79] of the Labor Code, the employer must send the
employee, who is about to be terminated, a written notice stating the cause/s for
termination and must give the employee the opportunity to be heard and to defend
himself.

We explained in Suico v. National Labor Relations Commission,[80] that

Article 277(b), in relation to Article 264(a) and (e) of the Labor Code recognizes the
right to due process of all workers, without distinction as to the cause of their
termination, even if the cause was their supposed involvement in strike-related
violence prohibited under Article 264(a) and (e) of the Labor Code.

To meet the requirements of due process in the dismissal of an employee, an

employer must furnish him or her with two (2) written notices: (1) a written notice
specifying the grounds for termination and giving the employee a reasonable
opportunity to explain his side and (2) another written notice indicating that, upon
due consideration of all circumstances, grounds have been established to justify the
employer's decision to dismiss the employee.[81]

In the present case, PHIMCO sent a letter, on June 23, 1995, to thirty-six (36)
union members, generally directing them to explain within twenty-four (24) hours
why they should not be dismissed for the illegal acts they committed during the
strike; three days later, or on June 26, 1995, the thirty-six (36) union members were
informed of their dismissal from employment.
 We do not find this company procedure to be sufficient compliance with the
due process requirements that the law guards zealously. It does not appear from the
evidence that the union officers were specifically informed of the charges against
them and given the chance to explain and present their side. Without the
specifications they had to respond to, they were arbitrarily separated from work in
total disregard of their rights to due process and security of tenure.

As to the union members, only thirty-six (36) of the thirty-seven (37) union
members included in this case were notified of the charges against them thru the
letters dated June 23, 1995, but they were not given an ample opportunity to be heard
and to defend themselves; the notice of termination came on June 26, 1995, only
three (3) days from the first notice - a perfunctory and superficial attempt to comply
with the notice requirement under the Labor Code. The short interval of time
between the first and second notice speaks for itself under the circumstances of this
case; mere token recognition of the due process requirements was made, indicating
the companys intent to dismiss the union members involved, without any meaningful
resort to the guarantees accorded them by law.

Under the circumstances, where evidence sufficient to justify the penalty of

dismissal has been adduced but the workers concerned were not accorded their
essential due process rights, our ruling in Agabon v. NLRC[82] finds full application;
the employer, despite the just cause for dismissal, must pay the dismissed workers
nominal damages as indemnity for the violation of the workers right to statutory due
process. Prevailing jurisprudence sets the amount of nominal damages at P30,000.00,
which same amount we find sufficient and appropriate in the present case.[83]

WHEREFORE, in light of all the foregoing, we

hereby REVERSE and SET ASIDE the decision dated February 10, 2004 and the
resolution dated December 12, 2005 of the Court of Appeals in CA-G.R. SP No.
70336, upholding the rulings of the National Labor Relations Commission.
 The Decision, dated February 4, 1998, of Labor Arbiter Jovencio Ll. Mayor
should prevail and is REINSTATED with the MODIFICATION that Erlinda
Vazquez, Ricardo Sacristan, Leonida Catalan, Maximo Pedro, Nathaniela
Dimaculangan, Rodolfo Mojico, Romeo Caramanza, Reynaldo Ganitano, Alberto
Basconcillo, Ramon Falcis, Angelita Balosa, Danilo Banaag, Abraham Caday,
Alfonso Claudio, Francisco Dalisay, Angelito Dejan, Philip Garces, Nicanor Ilagan,
Florencio Libongcogon, Nemesio Mamonong, Teofilo Manalili, Alfredo Pearson,
Mario Perea, Renato Ramos, Mariano Rosales, Pablo Sarmiento, Rodolfo Tolentino,
Felipe Villareal, Arsenio Zamora, Danilo Baltazar, Roger Caber,Reynaldo Camarin,
Bernardo Cuadra, Angelito de Guzman, Gerardo Feliciano, Alex Ibaez, Benjamin
Juan, Sr., Ramon Macaalay, Gonzalo Manalili, Raul Miciano, Hilario Pea, Teresa
Permocillo, Ernesto Rio, Rodolfo Sanidad, Rafael Sta. Ana, Julian Tuguin, and
Amelia Zamora are each awarded nominal damages in the amount of P30,000.00.
No pronouncement as to costs.

SO ORDERED.