found guilty of committing acts of disloyalty, conduct unbecoming of a union

[199] G&S Transport Co. v. Tito Infante et. al. member and acts inimical to the interest of the Union.
G. R. No. 160303 | September 13, 2007 | J. Tinga ○ The two employees were terminated by the petitioner company.
● Upon learning of the incident, several drivers of petitioner stopped driving
SUMMARY ​Respondents are taxi drivers employed by the petitioner company who their taxi cabs apparently in sympathy with their dismissed colleagues.
operates as a taxi concessionaire for NAIA. Upon recommendation of the union, two ○ Petitioner alleged that the work stoppage constituted an illegal
employees were terminated from work by the company. The workers then staged a strike at the work premises. Furthermore, petitioner averred that
strike in solidarity with the dismissed workers. The company filed a complaint for an various illegal acts, such as stopping, barring and intimidating other
illegal strike with the LA while the employees filed complaints for illegal dismissal. employees wishing to enter the work premises, were committed by
Most of the workers eventually withdrew their complaints. The LA ruled that the strike the said drivers that resulted in the paralyzation of petitioner’s
was illegal and held that respondents participated in the strike. However, the LA business operation.
stated that respondents should not have been dismissed. NLRC affirmed the LA. The ● Petitioner ordered the striking workers to return to work but some of the
CA remanded the case back to the LA. The Court affirmed the LA ruling that the strike drivers, including respondents, refused to do so.
was illegal for not being based on a labor dispute. Furthermore, union members who ○ They then filed an action for illegal strike before the LA against 37
participated in an illegal strike should not be dismissed. However, considering the drivers. Two days later, said drivers filed a case for illegal dismissal
time that has elapsed since their termination, the Court rules that payment of against petitioner.
backwages is appropriate in this case. ● Respondents Infante and Borbo denied joining the alleged strike. They
narrated that they reported to work on the day of the strike but did not find
DOCTRINE ​A valid strike therefore presupposes the existence of a labor dispute.
their taxi in the garage. The dispatcher and the counter sales clerk were
For union officers: ​knowingly participating in an illegal strike is a valid ground for
likewise not around. Thereafter, they learned about the protest of their
termination of employment
coworkers. They soon found out that the management had stopped
For union members: ​mere participation in an illegal strike is not sufficient ground for
company operation that afternoon but they stayed in the company premises.
termination of services
○ They did not report for work on the following day because it was
FACTS their day-off. The next day, they did report for work but were
refused entry by the guard because their names did not appear on
● Petitioner was the exclusive coupon taxi concessionaire at the NAIA from the list of drivers allowed by petitioner to work on that day.
1989 to 1994 by virtue of a concession contract. ● Respondent Castañeda stated that he was on sick leave days before the
○ Under the terms of the contract, the coupon taxi units assigned to strike. He reported for work on the day of the strike but was not able to
service arriving plane passengers would be dispatched from the perform his duties because of the protest staged by his co-workers. He
garage located at the Duty Free Compound opposite NAIA, reported back to work on the following day but he was not allowed entry by
whereas units assigned to service departing plane passengers the guard for having allegedly participated in the illegal strike.
would be given their assignment by the garage dispatcher on their ● Out of the 37 complainant drivers, only 7 remained as complainants while
way back to the garage after taking arriving passengers to their the others executed their respective affidavits of desistance and filed their
destination. corresponding motion to dismiss.
● Respondents had been employed by the company since 1989. ● LA declared the protest of the drivers as an illegal strike:
○ At the time of their dismissal they were assigned at the Domestic ○ there seemed to be no labor disputes but merely a protest of the
Airport on the morning and afternoon shifts. dismissal of respondent’s leaders. Under Art. 212 (D) "any
● Petitioner claimed to have received from the NAIA Airport Taxi Service temporary stoppage of work by the concerted action of employees
Employees Union - TUPAS a letter-memorandum demanding the dismissal must be a result of an industrial or labor dispute." No industrial or
from employment of Gonzales and Azaga on the ground that they were labor dispute, however, was existing at the time.
 ● LA also found that some of the dismissed drivers did not participate in the ○ No proof presented by Borbo and Infante to establish that it really
strike and thus their dismissal was illegal and they should be paid separation was their day-off, Castaneda could not present evidence that he
pay and backwages since reinstatement is no longer an option due to the was on sick leave.
cessation of the company’s operations. ○ In any case, LA, NLRC, and CA are unanimous in finding that
○ On the other hand, respondents, though found to have participated respondents took part in the strike. They only differed in ruling
in the illegal strike, were not meted out the penalty of dismissal; regarding the legality of the dismissal.
instead, petitioner was ordered to pay them separation pay in lieu
of reinstatement but without backwages On the legality of the dismissal
● NLRC affirmed the LA ruling.
● The CA reversed and remanded the case back to the LA. ● Art. 264 provides for the consequences of an illegal strike, making a
○ LA failed to categorically rule on the validity of respondents’ distinction between union officers and members who participated therein.
dismissal and instead merely stated that they should not have been ○ Thus, knowingly participating in an illegal strike is a valid
dismissed. Thus,the CA held that their dismissal was illegal. ground for termination of employment of a union officer.
○ Furthermore, CA noted that SEC certified that the company was ○ The law, however, treats differently mere union members. ​Mere
still operational. Thus, the LA and NLRC gravely abused their participation in an illegal strike is not a sufficient ground for
discretion in ordering payment of separation pay instead of termination of the services of the union members.
reinstatement. ● The Labor Code protects an ordinary, rank-and-file union member who
○ MR was dismissed. participated in such a strike from losing his job, provided that he did not
commit an illegal act during the strike.
ISSUES: W/N respondents participated in the illegal strike - YES ○ It can be gleaned from the aforecited provision of law in point,
however, that an ordinary striking employee cannot be terminated
● Art. 212 defines a strike as any temporary stoppage of work by the for mere participation in an illegal strike. Proof beyond reasonable
concerted action of employees as a result of an industrial or labor dispute. doubt is not required. Substantial evidence available under the
● A valid strike therefore presupposes the existence of a labor dispute. attendant circumstances, which may justify the imposition of the
○ The strike undertaken by respondents took the form of a sit-down penalty of dismissal, may suffice.
strike, or more aptly termed as a sympathetic strike, where the ● IN THIS CASE: ​No substantial evidence to establish that illegal acts
striking employees have no demands or grievances of their own, were committed by respondents. Thus, they should not have been
but they strike for the purpose of directly or indirectly aiding others, dismissed.
without direct relation to the advancement of their interest. ○ Nowhere in their affidavits did these witnesses cite the particular
● It is indubitable that an illegal strike in the form of a sit-down strike illegal acts committed by each individual respondent during the
occurred in petitioner’s premises, as a show of sympathy to the two strike. Notably, no questions during the hearing were asked relative
employees who were dismissed by petitioner. to the supposed illegal acts.
○ Petitioner has sufficiently established that respondents ○ Interestingly, the Labor Arbiter, the proximate trier of fact, also
remained in the work premises in the guise of waiting for made no mention of the supposed illegal acts in his decision.
orders from management to resume operations when, in fact, ● Acts of respondents do not merit their dismissal from employment because it
they were actively participating in the illegal strike. has not been substantially proven that they committed any illegal act while
● The office telegram sent to individual respondents informing them to return participating in the illegal strike.
to work went unheeded. Respondents failed to satisfactorily explain their ● Company argues that it did not terminate respondents but merely sought a
conspicuous absence following the day of the purported illegal strike. declaration from the NLRC that they have lost their employment by filing a
complaint for illegal dismissal.
 ○ COURT: From the facts, respondents were clearly dismissed.

On backwages and reinstatement

● GENERAL RULE: No work performed means no wages

○ EXCEPTION: If the worker was able, willing and ready to work but
was illegally locked out, suspended or dismissed or otherwise
illegally prevented from working.
● Under the circumstances, respondents’ reinstatement without backwages
suffices for the appropriate relief. ​If reinstatement is no longer possible,
given the lapse of considerable time from the occurrence of the strike,
the award of separation pay of one (1) month salary for each year of
service, in lieu of reinstatement, is in order.
○ Court noted the SEC certification proving that the company has not
yet ceased operations and that they even admitted that they have
another concession agreement with NAIA.
● Fact remains that petitioner company still operates a taxi concession and
that logically requires the service of taxi drivers, the same position held by
respondents back in 1990.
● Rules provide that reinstatement should be the proper relief. However,
where more than eight (8) years have passed since the petitioners therein
staged an illegal strike and were found to have been unlawfully terminated,
an award of separation pay equivalent to one (1) month pay for every year of
service, in lieu of reinstatement, was deemed more practical and appropriate
to all the parties concerned.

RULING: ​WHEREFORE, the petition is GRANTED. The challenged Decision dated

27 June 2003 and Resolution dated 8 October 2003 of the Court of Appeals in
CA-G.R. SP No. 71472 are REVERSED AND SET ASIDE. The Decision dated 15
October 2001 of the NLRC, which affirmed that of the Labor Arbiter, is REINSTATED.
SO ORDERED.