SCHERING EMPLOYEES L!OR "NION #SEL"$ a%& L"CI P. SERENEO, 'e()()o%er*, +*. SCHERING PLO"GH CORPOR,ION, EPI,CIO ,I,ONG, -R., -OSE L. ES,INGOR, .NNY ,. Y", LEO LO/"INRIO a%& RO!ER,O ,., re*'o%&e%(*. D E C I S I O N SN.O0L1G",IERRE2, J.: Before us s a petton for revew on certiorari under Rue 45 of the 1997 Rues of Cv Procedure, as amended, assang the Decson 1 dated December 10, 1999 and Resouton 2 dated March 14, 2000 rendered by the Court of Appeas n CA-G.R. SP No. 51361, entted "Schering Employees Labor Union (SELU) and Lucia Sereneo vs. National Labor Relations Commission, Schering lough Corporation, Epitacio !itong, "r., "ose L. Estingor, #anny !. $u, Leo Lo%uinario, and Roberto !ada." The facts are: The nstant controversy stemmed from a compant for unfar abor practce and ega dsmssa ed wth the Labor Arbter by Scherng Empoyees Labor Unon (SELU) and Luca P. Sereneo, SELUs presdent, petitioners, aganst Scherng Pough Corporaton, Eptaco Ttong, |r., |ose L. Estngor, Danny T. Yu, Leo Loqunaro, and Roberto Tada, respondents, docketed as NLRC NCR Case No. 00-10-06497-96. Pettoners, n ther compant, aeged that sometme n |anuary 1977, pettoner Luca P. Sereneo was empoyed as a professona medca representatve by respondent company. Eventuay, she became a ed saes tranng manager wth a monthy saary of P22,200.00. Durng her empoyment, she receved severa awards from respondent n recognton of her remarkabe marketng exceence. However, on |anuary 22, 1996, when she was eected presdent of SELU and started the re-negotaton wth respondent company on the coectve barganng agreement (CBA), respondents suddeny became dssatsed wth her saes performance. On August 12, 1996, respondent company sent her a notce askng her to submt an expanaton why she faed to mpement marketng pro|ects. Agan, on September 13, 1996, she was requred to comment on the compant chargng her wth msappropraton of company funds, fascaton and tamperng of company records, and submsson of fase reports. Ths prompted pettoner SELU to e wth the Natona Concaton and Medaton Board (NCMB) a notce of strke on the grounds of unfar abor practce and unon bustng. But the notce of strke was dsmssed by the NCMB n ts Resouton dated October 2, 1996. Subsequenty, respondents sent pettoner Sereneo a Memorandum dated October 11, 1996 termnatng her servces for oss of trust and condence. In ther answer, respondents dened the aegatons n the compant. They camed that pettoner Sereneo, beng a professona medca representatve, performed varous functons to ensure a protabe sae of ts pharmaceutca products. These are: vstng hosptas and physcans concerned; preparng and submttng perodc reports of her ca vsts to varous doctors, tnerary, and expenses. However, she faed to perform these dutes, promptng respondent company to send her two (2) etters dated September 5, 1996 and September 13, 1996, chargng her wth wfu voaton of company rues and reguatons 3 and drectng her to submt a wrtten expanaton. But she refused to submt her expanaton, promptng respondents to evauate her records. They found her guty of dshonesty, wfu breach of trust and wfu dsobedence. Respondents then sent her a notce termnatng her servces ehectve October 11, 1996. On |une 27, 1997, the Labor Arbter rendered a Decson ndng respondents guty of unfar abor practce for dsmssng pettoner Sereneo egay and orderng them (1) to renstate her to her former poston of medca representatve wthout oss of senorty rghts and other prveges; and (2) to pay her, |onty and severay, backwages and attorneys fee equvaent to 10% of the monetary awards, thus: "WHEREFORE, |udgment s hereby rendered decarng respondents guty of unfar abor practce n dsmssng companant, orderng respondents to renstate companant to her poston as professona medca representatve wthout oss of senorty rghts and other prveges, and sentencng respondents, |onty and severay, to pay companant fu backwages from October 11, 1996 up to the date of her actua renstatement and a sum equvaent to ten (10%) percent of the monetary awards as attorneys fees, a other cams are hereby ordered dsmssed. SO ORDERED." Upon appea, the Natona Labor Reatons Commsson (NLRC) promugated a Decson dated February 27, 1998 reversng the Arbters Decson and dsmssng pettoner Sereneos compant. Pettoners then ed a moton for reconsderaton but was dened by the NLRC n a Resouton dated Apr 30, 1998. Hence, they ed wth ths Court a petton for certorar whch we referred to the Court of Appeas pursuant to our rung n St. &artin's (uneral )ome vs. NLRC. 4 On December 10, 1999, the Appeate Court rendered a Decson amrmng the NLRCs Decson. The Court of Appeas hed: "After thoroughy readng the peadngs and annexes especay the questoned decson and resouton, ths Court found no trace at a of grave abuse of dscreton on the part of the respondent Commsson. Instead, ths Court found the Commssons verdct to be supported by substanta evdence and n accordance wth the aw. x x x x x x Furthermore, ths Court fuy agrees wth the observatons of respondent NLRC: Moreover, on the ssue of wfu dsobedence to a awfu order, records aso dscosed that despte two (2) memos ssued by the respondent to the companant, the atter never bothered to answer nor expan her sde to the former. Of course companant tred to |ustfy her nacton by camng that t woud have been fute anyway to expan snce respondent was bent n gettng rd of her. Such reacton, however, n the ght of what we perceved as ack of substanta evdence to warrant a ndng of unfar abor practce ony gves an mpresson that 3o4'5a)%a%( 6a& )%&ee& bee% re4)*e& )% 6er &u()e*. Ths mpresson can ceary be geaned from the ateratons n the copes of ca cards submtted. If at a, companants faure to refute pont by pont the specc charges eveed aganst her worked to her dsadvantage. A tod, t woud appear that t was not respondent who reed on the genera prncpes of aw but rather the companant and unfortunatey the Labor Arbter a quo who opted to brush asde the cam of vad dsmssa through a sweepng statement that no supportng substanta evdence were presented by respondent when n truth and n fact, there were. Reatedy, even the cam of dena of due process shoud not have escaped the Labor Arbters |udcous eyes had he been more prudent. The records ceary show that companant was accorded the rght to be heard as she was gven ampe tme to expan and answer the charges aganst her but opted not to on account of the mstaken noton that to do so woud ony be an exercse n futty. It has aready been rued by the hghest court due process smpy means the opportunty to be heard before |udgment s rendered. Respondent coud, therefore, not be fauted f t decded to exercse ts management prerogatve to mpose dscpne on an errng empoyee. Ths Court re|ects the contenton of petton that the decson of respondent NLRC s nu and vod because t was prepared by ony two Commssoners. Sec. 4 (b), Rue VII of the New Rues of Procedure of the Natona Labor Reatons Commsson states: The presence of at east two (2) Commssoners of a Dvson sha consttute a quorum to decde any case/matter before t. The concurrence of two (2) Commssoners of a Dvson sha be necessary for the pronouncement of a |udgment or resouton. Whenever the requred membershp n a Dvson s not compete and the concurrence of two (2) Commssoners to arrve at a |udgment or resouton cannot be obtaned, the Charman sha desgnate such number of addtona Commssoners from the other Dvsons as may be necessary from the same sector. The pettoners have not sumcenty shown grounds that may urge ths Court to ssue the prerogatve wrt of certorar. WHEREFORE, for ack of mert, the petton s DISMISSED. SO ORDERED." On |anuary 12, 2000, pettoners ed a moton for reconsderaton, but was dened by the Appeate Court n a Resouton dated March 14, 2000. The basc ssue for our determnaton s whether pettoner Sereneo was egay dsmssed from empoyment. After a cose revew of the records, we sustan the ndngs of the NLRC, amrmed by the Court of Appeas, that *6e 7a5*)8e& 3o4'a%y 3a55 3ar&* by a5(er)%9 (6e &a(e* o7 6er a3(ua5 +)*)(* (o '6y*)3)a%*. On August 27, 1997, *6e :a* 7ou%& 9u)5(y o7 4)*a''ro'r)a()o% o7 3o4'a%y 7u%&* by 7a5*)7y)%9 7oo& re3e)'(*. ,6e*e )%7ra3()o%* *6o: (6a( *6e )* &)*6o%e*(. C5ear5y, *6e brea36e& (6e (ru*( re'o*e& )% 6er by re*'o%&e%(*. Hence, her dsmssa from the servce s n order. Under Artce 282 of the Labor Code, as amended, 5 fraud or wfu breach by the empoyee of trust reposed n hm by hs empoyer or duy authorzed representatve s a ground for termnatng an empoyment. Pettoners accusaton of unon bustng s bereft of any proof. We scanned the records very carefuy and faed to dscern any evdence to sustan such charge. In !iu vs. NLRC, 6 we hed: "x x x. I( )* (6e u%)o%, (6ere7ore, :6o 6a& (6e bur&e% o7 'roo7 (o 're*e%( *ub*(a%()a5 e+)&e%3e (o *u''or( )(* a55e9a()o%* (of unfar abor practces commtted by management). "x x x. "x x x, but n the case at bar the facts and the evdence dd not estabsh even at east a ratona bass why the unon woud wed a strke based on aeged unfar abor practces t dd not even bother to substantate durng the concaton proceedngs. I( )* %o( e%ou96 (6a( (6e u%)o% be5)e+e& (6a( (6e e4'5oyer 3o44)((e& a3(* o7 u%7a)r 5abor 'ra3()3e :6e% (6e 3)r3u4*(a%3e* 35ear5y %e9a(e e+e% a prima facie *6o:)%9 (o :arra%( *u36 a be5)e7.; <HEREFORE, the petton s DENIED. The assaed Decson dated December 10, 1999 and Resouton dated March 14, 2000 of the Court of Appeas n CA-G.R. SP No. 51361 are hereby AFFIRMED. Costs aganst pettoners. SO ORDERED. G.R. No. 10015= -u%e 2, 1>>2 S,. SCHOLS,IC?S COLLEGE, pettoner, vs. HON. R"!EN ,ORRES, )% 6)* 3a'a3)(y a* SECRE,RY OF L!OR N. EMPLOYMEN,, a%& SMHNG NG MNGGG<NG PNG1E."@SYON S S,. ES@OLS,I@1NF,E", respondents.
!ELLOSILLO, J.: The prncpa ssue to be resoved n ths recourse s whether strkng unon members termnated for abandonment of work after fang to compy wth return- to-work orders of the Secretary of Labor and Empoyment (SECRETARY, for brevty) shoud by aw be renstated. On 20 |uy 1990, pettoner St. Schoastca's Coege (COLLEGE, for brevty) and prvate respondent Samahan ng Manggagawang Pang-Edukasyon sa Sta. Eskoastka-NAFTEU (UNION, for brevty) ntated negotatons for a rst-ever coectve barganng agreement. A deadock n the negotatons prompted the UNION to e on 4 October 1990 a Notce of Strke wth the Department of Labor and Empoyment (DEPARTMENT, for brevty), docketed as NCMB-NCR-NS-10-826. On 5 November 1990, the UNION decared a strke whch parayzed the operatons of the COLLEGE. Ahectng as t dd the nterest of the students, pubc respondent SECRETARY mmedatey assumed |ursdcton over the abor dspute and ssued on the same day, 5 November 1990, a return-to-work order. The foowng day, 6 November 1990, nstead of returnng to work, the UNION ed a moton for reconsderaton of the return-to-work order questonng inter alia the assumpton of |ursdcton by the SECRETARY over the abor dspute. On 9 November 1990, the COLLEGE sent ndvdua etters to the strkng empoyees en|onng them to return to work not ater than 8:00 o'cock A.M. of 12 November 1990 and, at the same tme, gvng notce to some twenty-three (23) workers that ther return woud be wthout pre|udce to the ng of approprate charges aganst them. In response, the UNION presented a st of (6) demands to the COLLEGE n a daogue conducted on 11 November 1990. The most mportant of these demands was the uncondtona acceptance back to work of the strkng empoyees. But these were aty re|ected. Lkewse, on 9 November 1990, respondent SECRETARY dened reconsderaton of hs return-to-work order and sterny warned the strkng empoyees to compy wth ts terms. On 12 November 1990, the UNION receved the Order. Thereafter, partcuary on 14 and 15 November 1990, the partes hed concaton meetngs before the Natona Concaton and Medaton Board where the UNION pruned down ts demands to three (3), vi*.+ that strkng empoyees be renstated under the same terms and condtons before the strke; that no retaatory or dscpnary acton be taken aganst them; and, that CBA negotatons be contnued. However, these ehorts proved fute as the COLLEGE remaned steadfast n ts poston that any return-to-work oher shoud be uncondtona. On 16 November 1990, the COLLEGE manfested to respondent SECRETARY that the UNION contnued to defy hs return-to-work order of 5 November 1990 so that "approprate steps under the sad crcumstances" may be undertaken by hm. 1 On 23 November 1990, the COLLEGE maed ndvdua notces of termnaton to the strkng empoyees, whch were receved on 26 November 1990, or ater. The UNION omcers and members then tred to return to work but were no onger accepted by the COLLEGE. On 5 December 1990, a Compant for Iega Strke was ed aganst the UNION, ts omcers and severa of ts members before the Natona Labor Reatons Commsson (NLRC), docketed as NLRC Case No. 00-12-06256-90. The UNION moved for the enforcement of the return-to-work order before respondent SECRETARY, ctng "seectve acceptance of returnng strkers" by the COLLEGE. It aso sought dsmssa of the compant. Snce then, no further hearngs were conducted. Respondent SECRETARY requred the partes to submt ther respectve poston papers. The COLLEGE prayed that respondent SECRETARY uphod the dsmssa of the empoyees who deed hs return-to-work order. On 12 Apr 1991, respondent SECRETARY ssued the assaed Order whch, inter alia, drected the renstatement of strkng UNION members, premsed on hs ndng that no voent or otherwse ega act accompaned the conduct of the strke and that a edgng UNION ke prvate respondent was "naturay expected to exhbt unbrded f nexperenced enthusasm, n assertng ts exstence". 2 Nevertheess, the aforesad Order hed UNION omcers responsbe for the voaton of the return-to-work orders of 5 and 9 November 1990 and, correspondngy, sustaned ther termnaton. Both partes moved for parta reconsderaton of the Order, wth pettoner COLLEGE questonng the wsdom of the renstatement of strkng UNION members, and prvate respondent UNION, the dsmssa of ts omcers. On 31 May 1991, n a Resouton, respondent SECRETARY dened both motons. Hence, ths Petton for Certiorari, wth Prayer for the Issuance of a Temporary Restranng Order. On 26 |une 1991, We restraned the SECRETARY from enforcng hs assaed Orders nsofar as they drected the renstatement of the strkng workers prevousy termnated. Pettoner questons the assumpton by respondent SECRETARY of |ursdcton to decde on termnaton dsputes, mantanng that such |ursdcton s vested nstead n the Labor Arbter pursuant to Art. 217 of the Labor Code, thus - Art. 217. "urisdiction o, Labor -rbiters and the Commission. . (a) Except as otherwse provded under ths Code, the Labor Arbters sha have orgna and excusve |ursdcton to hear and decde, wthn thrty (30) caendar days after the submsson of the case by the partes for decson wthout extenson, the foowng cases nvovng a workers, whether agrcutura or non-agrcutura: . . . 2. Termnaton dsputes . . . 5. Cases arsng from any voaton of Artce 264 of ths Code, ncudng questons on the egaty of strkes and ock-outs . . . In support of ts poston, pettoner nvokes Our rung n -L v. Secretary o, Labor and Employment A where We hed: The abor Secretary exceeded hs |ursdcton when he restraned PAL from takng dscpnary measures aganst ts guty empoyees, for, under Art. 263 of the Labor Code, a that the Secretary may en|on s the hodng of the strke but not the company's rght to take acton aganst unon omcers who partcpated n the ega strke and commtted ega acts. Pettoner further contends that foowng the doctrne ad down n Sarmiento v. !uico 4 and Union o, (ilipro Employees v. Nestle hilippines, /nc., 5 workers who refuse to obey a return-to-work order are not entted to be pad for work not done, or to renstatement to the postons they have abandoned of ther refusa to return thereto as ordered. Takng a contrary stand, prvate respondent UNION peads for renstatement of ts dsmssed omcers consderng that the act of the UNION n contnung wth ts pcket was never characterzed as a "brazen dsregard of successve ega orders", whch was ready apparent n Union (ilipro Employees v. Nestle hilippines, /nc., supra, nor was t a wfu refusa to return to work, whch was the bass of the rung n Sarmiento v. !uico, supra. The faure of UNION omcers and members to mmedatey compy wth the return-to-work orders was not because they wanted to defy sad orders; rather, they hed the vew that academc nsttutons were not ndustres ndspensabe to the natona nterest. When respondent SECRETARY dened ther moton for reconsderaton, however, the UNION ntmated that ehorts were mmedatey ntated to fashon out a reasonabe return-to-work agreement wth the COLLEGE, abet, f faed. The ssue on whether respondent SECRETARY has the power to assume |ursdcton over a abor dspute and ts ncdenta controverses, causng or key to cause a strke or ockout n an ndustry ndspensabe to the natona nterest, was aready setted n /nternational harmaceuticals, /nc. v. Secretary o, Labor and Employment. 6 Theren, We rued that: . . . |T|he Secretary was expcty granted by Artce 263 (g) of the Labor Code the authorty to assume |ursdcton over a abor dspute causng or key to cause a strke or ockout n an ndustry ndspensabe to the natona nterest, and decde the same accordngy. Necessary, ths authorty to assume |ursdcton over the sad abor dspute must ncude and extend to a questons and ncude and extend to a questons and controverses arsng therefrom, ncudng cases over whch the Labor Arbter has excusve |ursdcton. And rghty so, for, as found n the aforesad case, Artce 217 of the Labor Code dd contempate of exceptons thereto where the SECRETARY s authorzed to assume |ursdcton over a abor dspute otherwse beongng excusvey to the Labor Arbter. Ths s ready evdent from ts openng provso readng "(e)xcept as otherwse provded under ths Code . . . Prevousy, We hed that Artce 263 (g) of the Labor Code was broad enough to gve the Secretary of Labor and Empoyment the power to take |ursdcton over an ssue nvovng unfar abor practce. 7 At rst gance, the rungs above stated seem to run counter to that of -L v. Secretary o, Labor and Employment, supra, whch was cted by pettoner. But the conct s ony apparent, not rea. To reca, We rued n the atter case that the |ursdcton of the Secretary of Labor and Empoyment n assumpton and/or certcaton cases s mted to the ssues that are nvoved n the dsputes or to those that are submtted to hm for resouton. The seemng dherence s, however, reconcabe. Snce the matter on the egaty or egaty of the strke was never submtted to hm for resouton, he was thus found to have exceeded hs |ursdcton when he restraned the empoyer from takng dscpnary acton aganst empoyees who staged an ega strke. Before the Secretary of Labor and Empoyment may take cognzance of an ssue whch s merey ncdenta to the abor dspute, therefore, the same must be nvoved n the abor dsputed tsef, or otherwse submtted to hm for resouton. If t was not, as was the case n -L v. Secretary or Labor and Employment, supra, and he nevertheess acted on t, that assumpton of |ursdcton s tantamount to a grave abuse of dscreton. Otherwse, the rung n /nternational harmaceuticals, /nc. v. Secretary o, Labor and Employment, supra, w appy. The submsson of an ncdenta ssue of a abor dspute, n assumpton and/or certcaton cases, to the Secretary of Labor and Empoyment for hs resouton s thus one of the nstances referred to whereby the atter may exercse concurrent |ursdcton together wth the Labor Arbters. In the nstant petton, the COLLEGE n ts Manfestaton, dated 16 November 1990, asked the "Secretary of Labor to take the approprate steps under the sad crcumstances." It kewse prayed n ts poston paper that respondent SECRETARY uphod ts termnaton of the strkng empoyees. Upon the other hand, the UNION questoned the termnaton of ts omcers and members before respondent SECRETARY by movng for the enforcement of the return-to-work orders. There s no dspute then that the ssue on the egaty of the termnaton of strkng empoyees was propery submtted to respondent SECRETARY for resouton. Such an nterpretaton w be n consonance wth the ntenton of our abor authortes to provde workers mmedate access to ther rghts and benets wthout beng nconvenenced by the arbtraton and tgaton process that prove to be not ony nerve-wrackng, but nancay burdensome n the ong run. Soca |ustce egsaton, to be truy meanngfu and rewardng to our workers, must not be hampered n ts appcaton by ong-wnded arbtraton and tgaton. Rghts must be asserted and benets receved wth the east nconvenence. For, abor aws are meant to promote, not defeat, soca |ustce (&aternity Children0s )ospital v. )on. Secretary o, Labor ). = After a, Art. 4 of the Labor Code does state that a doubts n the mpementaton and nterpretaton of ts provsons, ncudng ts mpementng rues and reguatons, sha be resoved n favor of abor. We now come to the more pvota queston of whether strkng unon members, termnated for abandonment of work after fang to compy strcty wth a return- to-work order, shoud be renstated. We quote hereunder the pertnent provsons of aw whch govern the ehects of defyng a return-to-work order: 1. Artce 263 (g) of the Labor Code - Art. 263. Stri1es, pic1eting, and loc1outs. . . . . (g) When, n hs opnon, there exsts a abor dspute causng or key to cause a strke or ockout n an ndustry ndspensabe to the natona nterest, the Secretary of Labor and Empoyment may assume |ursdcton over the dspute and decde t or certfy the same to the Commsson for compusory arbtraton. Such assumpton or certcaton sha have the ehect of automatcay en|onng the ntended or mpendng strke or ockout as speced n the assumpton or certcaton order. /, one has already ta1en place at the time o, assumption or certi2cation, all stri1ing or loc1ed out employees shall immediately return to 3or1 and the empoyer sha mmedatey resume operatons and readmt a workers under the same terms and condtons prevang before the strke or ockout. The Secretary of Labor and Empoyment or the Commsson may seek the assstance of aw enforcement agences to ensure compance wth ths provson as we as wth such orders as he may ssue to enforce the same . . . (as amended by Sec. 27, R.A. 6715; emphass supped). 2. Artce 264, same Labor Code - Art. 264. rohibited activities. . (a) No abor organzaton or empoyer sha decare a strke or ockout wthout rst havng barganed coectvey n accordance wth Tte VII of ths Book or wthout rst havng ed the notce requred n the precedng Artce or wthout the necessary strke or ockout vote rst havng been obtaned and reported to the Mnstry. No stri1e or loc1out shall be declared a,ter assumption o, 4urisdiction by the resident or the &inister or after certcaton or submsson of the dspute to compusory or vountary arbtraton or durng the pendency of cases nvovng the same grounds for the strke or ockout . . . (emphass supped). Any worker whose empoyment has been termnated as consequence of an unawfu ockout sha be entted to renstatement wth fu back wages. -ny union o5cer 3ho 1no3ingly participates in an illegal stri1e and any 3or1er or union o5cer 3ho 1no3ingly participates in the commission o, illegal acts during a stri1e may be declared to have lost his employment status+ rovided, !hat mere participation o, a 3or1er in a la3,ul stri1e shall not constitute su5cient ground ,or termination o, his employment, even i, a replacement had been hired by the employer during such la3,ul stri1e . . . (emphass supped). 3. Secton 6, Rue IX, of the New Rues of Procedure of the NLRC (whch took ehect on 31 August 1990) - Sec. 6. E6ects o, #e2ance. . Non-compance wth the certcaton order of the Secretary of Labor and Empoyment or a return to work order of the Commsson sha be consdered an ega act commtted n the course of the strke or ockout and sha authorze the Secretary of Labor and Empoyment or the Commsson, as the case may be, to enforce the same under pain or loss o, employment status or enttement to fu empoyment benets from the ockng-out empoyer or backwages, damages and/or other postve and/or amrmatve reefs, even to crmna prosecuton aganst the abe partes . . . (emphass supped). Prvate respondent UNION mantans that the reason they faed to mmedatey compy wth the return-to-work order of 5 November 1990 was because they questoned the assumpton of |ursdcton of respondent SECRETARY. They were of the mpresson that beng an academc nsttuton, the schoo coud not be consdered an ndustry ndspensabe to natona nterest, and that pendng resouton of the ssue, they were under no obgaton to mmedatey return to work. Ths poston of the UNION s smpy awed. Artce 263 (g) of the Labor Code provdes that f a strke has aready taken pace at the tme of assumpton, "a strkng . . . empoyees sha mmedatey return to work." Ths means that by ts very terms, a return-to-work order s mmedatey ehectve and executory notwthstandng the ng of a moton for reconsderaton (University o, Sto. !omas v. NLRC). > It must be strcty comped wth even durng the pendency of any petton questonng ts vadty (Union o, (ilipro Employees v. Nestle hilippines, /nc., supra). After a, the assumpton and/or certcaton order s ssued n the exercse of respondent SECRETARY's compusve power of arbtraton and, unt set asde, must therefore be mmedatey comped wth. The ratonae for ths rue s expaned n University o, Sto. !omas v. NLRC, supra, citing hilippine -ir Lines Employees -ssociation v. hilippine -ir Lines, /nc., 10 thus - To say that ts (return-to-work order) ehectvty must wat amrmance n a moton for reconsderaton s not ony to emascuate t but ndeed to defeat ts mport, for by then the deadne xed for the return to work woud, n the ordnary course, have aready passed and hence can no onger be amrmed nsofar as the tme eement s concerned. Moreover, the assumpton of |ursdcton by the Secretary of Labor and Empoyment over abor dsputes nvovng academc nsttutons was aready uphed n hilippine School o, 7usiness -dministration v. Noriel 11 where We rued thus: There s no doubt that the on-gong abor dspute at the schoo adversey ahects the natona nterest. The schoo s a duy regstered educatona nsttuton of hgher earnng wth more or ess 9,000 students. The on-gong work stoppage at the schoo unduy pre|udces the students and w enta great oss n terms of tme, ehort and money to a concerned. More mportant, t s not amss to menton that the schoo s engaged n the promoton of the physca, nteectua and emotona we-beng of the country's youth. Respondent UNION's faure to mmedatey compy wth the return-to-work order of 5 November 1990, therefore, cannot be condoned. The respectve abtes of strkng unon omcers and members who faed to mmedatey compy wth the return-to-work order s outned n Art. 264 of the Labor Code whch provdes that any decaraton of a strke or ockout after the Secretary of Labor and Empoyment has assumed |ursdcton over the abor dspute s consdered an ega. act. Any worker or unon omcer who knowngy partcpates n a strke defyng a return-to-work order may, consequenty, "be decared to have ost hs empoyment status." Secton 6 Rue IX, of the New Rues of Procedure of the NLRC, whch provdes the penates for defyng a certcaton order of the Secretary of Labor or a return-to- work order of the Commsson, aso reterates the same penaty. It speccay states that non-compance wth the aforesad orders, whch s consdered an ega act, "sha authorze the Secretary of Labor and Empoyment or the Commsson . . . to enforce the same under pan of oss of empoyment status." Under the Labor Code, assumpton and/or certcaton orders are smary treated. Thus, we hed n Sarmiento v. !uico, supra, that by nsstng on stagng the restraned strke and deanty pcketng the company premses to prevent the resumpton of operatons, the strkers have forfeted ther rght to be readmtted, havng abandoned ther postons, and so coud be vady repaced. We recenty reterated ths stance n (ederation o, (ree 8or1ers v. /nciong, 12 wheren we cted Union o, (ilipro Employees v. Nestle hilippines, /nc., supra, thus - A strke undertaken despte the ssuance by the Secretary of Labor of an assumpton or certcaton order becomes a prohbted actvty and thus ega, pursuant to the second paragraph of Art. 264 of the Labor Code as amended . . . The unon omcers and members, as a resut, are deemed to have ost ther empoyment status for havng knowngy partcpated n an ega act. Despte knowedge of the rung n Sarmiento v. !uico, supra, records of the case revea that prvate respondent UNION opted to defy not ony the return-to-work order of 5 November 1990 but aso that of 9 November 1990. Whe they cam that after recevng copy of the Order of 9 November 1990 ntatves were mmedatey undertaken to fashon out a return-to-work agreement wth management, st, the unrebutted evdence remans that the strkng unon omcers and members tred to return to work ony eeven (11) days after the concaton meetngs ended n faure, or twenty (20) days after they receved copy of the rst return-to-work order on 5 November 1990. The sympathy of the Court whch, as a rue, s on the sde of the aborng casses (Reliance Surety 9 /nsurance Co., /nc. v. NLRC), 1A cannot be extended to the strkng unon omcers and members n the nstant petton. There was wfu dsobedence not ony to one but two return-to-work orders. Consderng that the UNION conssted many of teachers, who are supposed to be we-ettered and we-nformed, the Court cannot overook the pan arrogance and prde dspayed by the UNION n ths abor dspute. Despte contanng threats of dscpnary acton aganst some unon omcers and members who actvey partcpated n the strke, the etter dated 9 November 1990 sent by the COLLEGE en|onng the unon omcers and members to return to work on 12 November 1990 presented the workers an opportunty to return to work under the same terms and condtons or pror to the strke. Yet, the UNION decded to gnore the same. The COLLEGE, correspondngy, had every rght to termnate the servces of those who chose to dsregard the return-to-work orders ssued by respondent SECRETARY n order to protect the nterests of ts students who form part of the youth of the and. Lasty, the UNION omcers and members aso argue that the doctrne ad down n Sarmiento v. !uico, supra, and Union o, (ilipro Employees v. Nestle, hilippines, /nc., supra, cannot be made appcabe to them because n the atter two cases, workers deed the return-to-work orders for more than ve (5) months. Ther deance of the return-to-work order, t s sad, dd not ast more than a month. Agan, ths ne of argument must be re|ected. It s cear from the provsons above quoted that from the moment a worker dees a return-to-work order, he s deemed to have abandoned hs |ob. It s aready n tsef knowngy partcpatng n an ega act. Otherwse, the worker w |ust smpy refuse to return to hs work and cause a standst n the company operatons whe retanng the postons they refuse to dscharge or aow the management to (Sarmiento v. !uico, supra). Sumce t to say, n(ederation o, (ree 8or1ers v. /nciong, supra, the workers were termnated from work after defyng the return-to-work order for ony nne (9) days. It s ndeed nconcevabe that an empoyee, despte a return-to-work order, w be aowed n the nterm to stand akmbo and wat unt ve (5) orders sha have been ssued for ther return before they report back to work. Ths s absurd. In ne, respondent SECRETARY gravey abused hs dscreton when he ordered the renstatement of strkng unon members who refused to report back to work after he ssued two (2) return-to-work orders, whch n tsef s knowngy partcpatng n an ega act. The Order n queston s, certany, contrary to exstng aw and |ursprudence. WHEREFORE, the Petton for Certiorari s hereby GRANTED. The Order of 12 Apr 1991 and the Resouton 31 May 1991 both ssued by respondent Secretary of Labor and Empoyment are SET ASIDE nsofar as they order the renstatement of strkng unon members termnated by pettoner, and the temporary restranng order We ssued on |une 26, 1991, s made permanent. No costs. SO ORDERED. G.R. No. 120751 Mar36 17, 1>>> PHIMCO IN."S,RIES, INC., pettoner, vs. HONOR!LE C,ING SECRE,RY OF L!OR -OSE !RILLN,ES a%& PHIMCO IN."S,RIES L!OR SSOCI,ION, respondents.
P"RISIM, J.: At bar s a Petton for Certiorari under Rue 65 of the Revsed Rues of Court, seekng to set asde the |uy 7, 1995 Order 1 of the then Actng Secretary |ose Brantes of the Department of Labor and Empoyment, n NCMB-NCR-NS-03-122- 95, on the ground of grave abuse of dscreton amountng to ack or excess of |ursdcton. The antecedent facts are, as foows: On March 9, 1995, the prvate respondent, Phmco Industres Labor Assocaton (PILA), duy certed coectve barganng representatve of the day pad workers of the pettoner, Phmco Industres Inc. (PHIMCO), ed a notce of strke wth the Natona Concaton and Medaton Board, NCR, aganst PHIMCO, a corporaton engaged n the producton of matches, after a deadock n the coectve barganng and negotaton. On Apr 21, 1995, when the severa concaton conferences caed by the contendng partes faed to resove ther dherences PILA, composed of 352 2 members, staged a strke. On |une 7, 1995, PILA presented a petton for the nterventon of the Secretary of Labor n the resouton of the abor dspute, to whch petton PHIMCO opposed. Pendng resouton of the sad petton or on |une 26, 1995, to be precse, PHIMCO sent notce of termnaton to some 47 A workers ncudng severa unon omcers. On |uy 7, 1995, the then Actng Secretary of Labor |ose Brantes assumed |ursdcton over the abor dspute and ssued hs Order rung, thus: WHEREFORE, ABOVE PREMISES CONSIDERED, and pursuant to Artce 263 (g) of the Labor Code, as amended, ths omce hereby assumes |ursdcton over the dspute at, Phmco ndustres, Inc. Accordngy, a the strkng workers, except those who have been handed down termnaton papers on |une 26, 1995, are hereby drected to return to work wth twenty-four (24) hours from recept of ths Order and for the Company to accept them back under the same terms and condtons prevang pror to the strke. The partes are further ordered to cease and desst from commttng any act that w aggravate the stuaton. To expedte the resouton of ths dspute, the partes are drected to submt ther poston papers and evdence wthn ten (10) days from recept of ths Order. SO ORDERED. 4 On |uy 12, 1995, pettoner brought the present petton; theorzng, that: I THE HONORABLE ACTING SECRETARY |OSE BRILLANTES ACTED WITH THE GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF EXCESS OF |URISDICTION IN ISSUING THE ASSAILED ORDER. II THE HONORABLE ACTING SECRETARY |OSE BRILLANTES ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF |URISDICTION WHEN HE WENT BEYOND THE BASIS FOR ASSUMPTION OF |URISDICTION UNDER ART. 263 OF THE LABOR CODE. 5 On |uy 31, 1995, two weeks after the ng of the Petton, the pubc respondent ssued another Order 6 temporary hodng n abeyance the mpementaton of the questoned Order dated |uy 7, 1995 for a perod of thrty (30) day; drectng, as foows: WHEREFORE PREMISES CONSIDERED, the mpementaton of our Order dated 7 |uy 1995 hereby temporary hed n abeyance for a perod of thrty (30) days ehectve from recept thereof pendng the prvate negotatons of the partes for the settement of ther abor dspute. Thereafter, both the Unon and the Company are drected to submt to ths Omce the resut of ther negotatons for our evauaton and approprate acton. SO ORDERED. 7 The pvota ssue here s: whether or not the pubc respondent acted wth grave abuse of dscreton amountng to ack or excess of |ursdcton n assumng |ursdcton over sub|ect abor dspute. The petton s mpressed wth mert. Art. 263, paragraph (g) of the Labor Code, provdes: (g) When, n hs opnon, there exst a abor dspute causng or key to cause a strke or ockout n an ndustry ndspensabe to the natona nterest, the Secretary of Labor and Empoyment may assume |ursdcton over the dspute and decde t or certfy the same to the Commsson for compusory arbtraton . . . The Labor Code vests n the Secretary of Labor the dscreton to determne what ndustres are ndspensabe to the natona nterest. Accordngy, upon the determnaton by the Secretary of Labor that such ndustry s ndspensabe to the natona nterest, he w assume |ursdcton over the abor dspute n the sad ndustry. = Ths power, however, s not wthout any mtaton. In uphodng the consttutonaty of B.P. 130 nsofar as t amends Artce 264 (g) > of the Labor Code, t stressed n the case of (ree telephone 8or1ers Union vs. )onorable &inister o, Labor and Employment, et al., 10 the mtaton set by the egsature on the power of the Secretary of Labor to assume |ursdcton over a abor dspute, thus: Batas Pambansa Bg. 130 cannot be any cearer, the coverage beng mted to "strkes or ockouts adversey ahectng the natona nterest. 11 In ths case at bar, however, the very admsson by the pubc respondent draws the abor dspute n queston out of the ambt of the Secretary's prerogatve, to wt. Whe the case at bar appears on ts face not to fa wthn the strct categorzaton of cases mbued wth "natona nterest", ths omce beeves that the obtanng crcumstances warrant the exercse of the powers under Artce 263 (g) of the Labor Code, as amended. 12 The prvate respondent dd not even make any ehort to touch on the ndspensabty of the match factory to the natona nterest. It must have been aware that a match factory, though of vaue, can scarcey be consdered as an ndustry "ndspensabe to the natona nterest" as t cannot be n the same category as "generaton and dstrbuton of energy, or those undertaken by banks, hosptas, and export-orented ndustres." 1A Yet, the pubc respondent assumed |ursdcton thereover, ratocnatng as foows: For one, the proonged work dsrupton has adversey ahected not ony the protagonsts, i.e., the workers and the Company, but aso those drecty and ndrecty dependent upon the unhampered and contnued operatons of the Company for ther means of vehood and exstence. In addton, the entre communty where the pant s stuated has aso been paced n |eopardy. If the dspute at the Company remans unabated, possbe oss of empoyment, not to menton consequent soca probems, mght resut thereby compoundng the unempoyment probem of the country. Thus we cannot be unmndfu of the possbe dre consequences that mght ensue f the present dspute s aowed to reman unresoved, partcuary when aternatve dspute resouton mechansm obtans to dspose of the dherences between the partes heren. 14 It s thus evdent from the foregong that the Secretary's assumpton of |ursdcton grounded on the aeged "obtanng crcumstances" and not on a determnaton that the ndustry nvoved n the abor dspute s one ndspensabe to the "natona nterest", the standard set by the egsature, consttutes grave abuse of dscreton amountng to ack of or excess of |ursdcton. To uphod the acton of the pubc respondent under the premses woud be stretchng too far the power of the Secretary of Labor as every case of a strke or ockout where there are nconvenences n the communty, or work dsruptons n an ndustry though not ndspensabe to the natona nterest, woud then come wthn the Secretary's power. It woud be practcay aowng the Secretary of Labor to ntervene n any Labor dspute at hs peasure. Ths s precsey why the aw sets and denes the standard: even n the exercse of hs power of compusory arbtraton under Artce 263 (g) of the Labor Code, the Secretary must foow the aw. For "when an overzeaous omca by-passes the aw on the pretext of retanng a audabe ob|ectve, the ntendment or purpose of the aw w ose ts meanng as the aw tsef s dsregarded" 15 In ght of the foregong, we hod that the pubc respondent gravey abused hs dscreton n assumng |ursdcton over the abor dspute sued upon n the case. WHEREFORE, the petton s hereby GRANTED; and the assaed Order, dated |uy 7, 1995, of the Actng Secretary of Labor SET ASIDE. No pronouncement as to costs. SO ORDERED. G.R. No. 120505 Mar36 25, 1>>> SSOCI,ION OF IN.EPEN.EN, "NIONS IN ,HE PHILIPPINES #I"P$, -OEL .ENSING, HENE.INO MIRF"EN,ES, CHRIS,OPHER P,EN,ES, N. N.RES ,E-N, pettoners, vs. N,IONL L!OR REL,IONS COMMISSION #NLRC$, CENPRO CHEMICL CORPOR,ION a%&Bor GO SING CHN )% 6)* 3a'a3)(y a* Ma%a9)%9 .)re3(or, respondents.
P"RISM, J.: The Petton for revew on Certiorari at bar seeks to renstate the Decson 1 of the Labor Arbter nsofar as t ordered the renstatement and payment of backwages of the four pettoners heren. The sad decson was amrmed 2 n toto by the NLRC. On February 21, 1995, however, upon moton for reconsderaton of the respondent company, the NLRC came out wth a Resouton A modfyng ts decson, by deetng therefrom the award of backwages, orderng payment of separaton pay n eu of renstatement, and decarng the oss of empoyment status of pettoner |oe Densng. The antecedent facts are as foows: |oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana, the pettoners heren, were casua empoyees of respondent CENAPRO Chemcas Corporaton. In the sad company, the coectve barganng representatve of a rank and e empoyees was CENAPRO Empoyees Assocaton (CCEA), wth whch respondent company had a coectve barganng agreement (CBA). Ther CBA excuded casua empoyees from membershp n the ncumbent unon. The casua empoyees who have rendered at east one to sx years of servce sought reguarzaton of ther empoyment. When ther demand was dened, they formed themseves nto an organzaton and amated wth the Assocaton of Independent unons n the Phppnes (AIUP). Thereafter, AIUP ed a petton for certcaton eecton, whch petton was opposed by the respondent company. The CCEA anchored ts opposton on the contract bar rue. On May 4 and |uy 3 1990, the unon ed a notce of strke, mnutes of strke vote, and the needed documentaton, wth the Department of Labor and Empoyment. The notce of strke cted as grounds therefor the acts of respondent company consttutng unfar abor practce, more speccay coercon of empoyees and systematc unon bustng. On |uy 23, 1992, the unon proceeded to stage a strke, n the course of whch, the unon perpetrated ega acts. The strkers padocked the gate of the company. The areas frontng the gate of the company were barrcaded and bocked by unon strkers. The strkers aso prevented and coerced other non-strkng empoyees from reportng for work. Because of such ega actvtes, the respondent company ed a petton for n|uncton wth the NLRC, whch granted a Temporary Restranng Order (TRO), en|onng the strkers from dong further acts of voence, coercon, or ntmdaton and from bockng fee ngress and egress to the company premses. Subsequenty, or on |uy 25, 1990, to be precse, the respondent company ed a compant for ega strke. The day before, |uy 24, 1990, pettoners ed a compant for unfar abor practce and ega ockout aganst the respondent company. In a consodated Decson, dated September 10, 1993, the Labor Arbter decares ega the strke staged by the pettoners, and dsmssed the charge of ega ockout and unfar abor practce. The dspostve porton of the Labor Arbter's decson was to the foowng ehect: WHEREFORE, premses consdered, |udgment s hereby rendered ndng the strke ega and as a consequence thereto, the omcers who partcpated n the ega strke namey: Oscar Enco, |ame dea Pedra, Lno Isdro, Are |orda, and |ose Catnubay are decared to have ost ther empoyment status. CENAPRO s drected however to renstate the other workers, except Ireneo Sagara, Artemo Gunto, Ruben Tuod, Marceo M. Matura, Gbert Hoda, Cesar Bunto, Rey Sarot, Luco Nuneza, |ose Basco, Gervaco Badespnosa, |r., Cresecente Bunto, Denns Pepto, Forenco Pepto, Edwn Ramayrat, Dane Canete, and Vvenco Snad|an who executed qutcams n favor of CENAPRO and cenapro s beng absoved from the charges of ega ockout and unfar abor practce. SO ORDERED. 4 In short, ve (5) unon omcers were decared to have ost ther empoyment status, fteen (15) unon members were not renstated because they executed qut cams n favor of the respondent company, and sx (6) workers, Rosato Bantuan, Edward Regner, |oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana, ordered to be renstated. On October 8, 1993, the Labor Arbter ssued an Order excudng Rosato Bantuan and Edward Regner from the st of those to be renstated and to be pad backwages. The remanng four (4) workers, |oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana, are the pettoners here. On October 5, 1993, the respondent company appeaed the aforesad decson nsofar as t ordered the renstatement of some of the strkers. On October 7, 1993, the pettoners aso appeaed the same decson of the Labor Arbter. Pendng resouton of the sad appeas, pettoner AUIP ed wth the Labor Arbter a Moton for Executon of the Labor Arbter's Decson drectng renstatement of some of ts members. The moton was granted n the Order dated October 15, 1993. On December 7, 1993, respondent company presented Manfestaton/Moton prayng that nstead of renstatement. t be aowed to pay separaton pay pettoners. On December 16, 1993, pettoners presented a moton for payro renstatement, whch moton was opposed by the respondent company, aegng many that the crcumstances of the case have straned the reatonshp of the partes heren, renderng ther renstatement unwse and napproprate. But such opposton was overrued by the Labor Arbter. In hs Order of March 23, 1994, the same Labor Arbter ssued a second wrt of executon drectng actua, f not payro renstatement of the strkers. On Apr 6, 1994, respondent company appeaed the second order for the renstatement of the strkers, pacng reance on the same grounds rased n support of ts rst appea. In ts Decson dated August 15, 1994, the NLRC amrmed n toto the Labor Arbter's decson, dsmssed both the appea of prvate respondent and that of pettoners, and reterated the Labor Arbter's Order for the renstatement of the heren pettoners, |oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana. The sad decson dsposed and drected as foows: WHEREFORE, premses consdered, these appeas are DISMISSED, and the decson of the Labor Arbter s AFFIRMED n ts entrety. Appeant Cenapro Chemca Corporaton s hereby ordered to mmedatey compy wth the Labor Arbter's Order dated March 23, 1994 and to reease the saares of four (4) appeant-workers namey |oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana from October 15, 1993 and contnue payng them up to the tme ths decson has become na and executory, ess earnng earned esewhere. SO ORDERED. 5 Respondent company moved for reconsderaton of that porton of the NLRC's decson orderng the renstatement of the sad strkers. Actng thereupon, the NLRC moded ts Decson of August 15, 1994, by orderng the payment of separaton pay n eu of the renstatement of the pettoners, deetng the award of backwages, and decarng the oss of empoyment status of |oe Densng. The dspostve porton of the Amendatory Resouton, rued thus: WHEREFORE, the decson of the Commsson promugated on August 15, 1994 s hereby MODIFIED. In vew of renstatement to companants Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana, appeant-movant CENAPRO Chemcas corporaton s drected to pay them amount equvaent to one (1) month pay for every year of servce and wthout backwages. As regards |oe Densng, he s decared to have ost hs empoyment status. SO ORDERED. 6 Hence, the present petton, theorzng that respondent NLRC acted wth grave abuse of dscreton amountng to ack or excess of |ursdcton n: 1) Entertanng the 6 Apr 1994 (the rst appea dated 5 October 1993) whch was based on smar grounds. 2) Reversng ts earer Resouton of the rst appea promugated 15 August 1994 by way of another contradctory and baseess rung promugated on 21 February 1995. 3) Deprvng Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana of ther rght to renstatement and backwages; and 4) Deprvng |oe Densng of hs rght to renstatement or separaton pay wth backwages. It s decsvey cear that athough the grounds nvoked n the two appeas were the same, the sad appeas were the same, the sad appeas were separate and dstnct remedes. Fed on October 5, 1993, the rst appea was from the decson of Labor Arbter Ncaso Annon, dated September 10, 1993, seekng oss of empoyment status of a the unon members who partcpated n the ega strke. The second appea, dated Apr 6, 1994, was, n ehect, an opposton to the second wrt of executon ssued on March 23, 1994. The second wrt pertaned to the order to ehect mmedate actua or payro renstatement of the four pettoners heren. The sad appeas were acted upon separatey by the NLRC, whch dd not act wth grave abuse of dscreton n entertanng such appeas. When they ed the notce of strke, pettoners cted as ther grounds therefor unfar abor practce, speccay coercon of empoyees and systematc unon bustng. But the sad grounds wee ad|udged as baseess by the Labor Arbter. The court quotes wth approva the foowng ndngs of Labor Arbter Annon, to wt: . . . In fact, n the undated |ont Amdavt of Oscar Eneco, Edgardo Regner, Chrstopher Patentes, Edgar Sanchez, Are |orda, |ame dea Pedra, the workers stated that what they consdered as harassments and nsuts are those when they were scoded for tte mstakes and memoranda for tardness. These acts, f reay commtted cannot be consdered as harassment and nsuts but were ordnary acts whch empoyers have to do as part of ther admnstratve supervson over ther empoyees. Moreover, Oscar Eneco's testmony that some of hs feow unon members ke vce-presdent |ame dea Pedra, Chrstopher Patentes and Henodno Mrafuentes, were aso harass when they were made to work another eght (8) hours after ther tour of duty deserves scant consderaton not ony because t s uncorroborated but he coud not even gve the dates when these workers were made to work for sxteen (16) hours, how many nstances these happened and whether or not the workers have actuay worked. 7 The court dscerns no bass for aterng the aforesad ndngs whch have been amrmed by the NLRC. The court s not persuaded by pettoners' aegaton of unon bustng. The NLRC correcty rued that the strke staged by pettoners was n the nature of a unon- recognton-strke. A unon-recognton-strke, as ts ega desgnaton mpes, s cacuated to compe the empoyer to recognze one's unon, and not the other contendng group, as the empoyees' barganng representatve to work out a coectve barganng agreement despte the strkng unon's doubtfu ma|orty status to mert vountary recognton and ack of forma certcaton as the excusve representatve n the barganng unt. It s undsputed that at the tme the petton for certcaton eecton was ed by AUIP, pettoner unon, there was an exstng CBA between the respondent company and CCEA, the ncumbent barganng representatve of a rank and e empoyees. The petton shoud have not been entertaned because of the contract bar rue. When a coectve barganng agreement has been duy regstered n accordance wth Artce 231 of the Labor Code, a petton for certcaton eecton or moton for nterventon may be entertaned ony wthn sxty (60) days pror to the expry date of the sad agreement. = Outsde the sad perod, as n the present case, the petton for certcaton eecton or moton for nterventon cannot be aowed. Hence, the concuson that the respondent company dd not commt the aeged unon bustng. From the gamut of evdence on hand, t can be gathered that the strke staged by the pettoner unon was ega for reasons, that: 1) The strkers commtted ega acts n the course of the strke. They formed human barrcades to bock the road, prevented the passage of the respondent company's truck, padocked the company's gate, and prevented co-workers from enterng the company premses. > 2) And voated the Temporary Restranng Order (TRO) 10 en|onng the unon and/or ts members from obstructng the company premses, and orderng the remova therefrom of a the barrcades. A strke s a egtmate weapon n the unversa strugge for exstence. 11 It s consdered as the most ehectve weapon n protectng the rghts of the empoyees to mprove the terms and condtons of ther empoyment. 12 But to be vad, a strke must be pursued wthn ega bounds. The rght to strke as a means for the attanment of soca |ustce s never meant to oppress or destroy the empoyer. The aw provdes mts for ts exercse. Among such mts are the prohbted actvtes under Artce 264 of the Labor Code, partcuary paragraph (e), whch states that no person engaged n pcketng sha: a) commt any act of voence, coercon, or ntmdaton or b) obstruct the free ngress to or egress from the empoyer's premses for awfu purposes or c) obstruct pubc thoroughfares. Even f the strke s vad because ts ob|ectve or purpose s awfu, the strke may st be decared nvad where the means empoyed are ega. For nstance, the strke was consdered ega as the "strkers formed a human cordon aong the sde of the Sta. Ana wharf and bocked a the ways and approaches to the aunches and vesses of Pettoners". 1A It foows therefore that the dsmssa of the omcers of the strkng unon was |usted and vad. Ther dsmssa as a consequence of the egaty of the strke staged by them nds support n Artce 264 (a) of the Labor Code, pertnent porton of whch provdes: " . . Any unon omcer who knowngy partcpates n an ega strke and any . . unon omcer who knowngy partcpates n the commsson of ega acts durng a strke may be decared to have ost hs empoyment status. . ." Unon omcers are duty bound to gude ther members to respect the aw. If nstead of dong so, the omcers urge the members to voate the aw and defy the duy consttuted authortes, ther dsmssa from the servce s a |ust penaty or sancton for ther unawfu acts. The omcers' responsbty s greater than that of the members. 14 The court nds mert n the ndng by the Labor Arbter and the NLRC that the respondent company commtted no ega ockout. Lockout means temporary refusa of the empoyer to furnsh work as a resut of an ndustra or abor dspute. 15 As observed by the Labor Arbter, t was the appeant-workers who vountary stopped workng because of ther strke. In fact the appeant workers admtted that non-strkng workers who wanted to return to work were aowed to do so. Ther beng wthout work coud not therefore be attrbuted to the empoyer's refusa to gve them work but rather, to the vountary wthdrawa of ther servces n order to compe the company to recognze ther unon. 16 The next aspect of the case to consder s the fate of the four pettoners heren. Decsve on the matter s the pertnent provson of Artce 264 (a) of the Labor Code that: ". . any worker . . who knowngy partcpates n the commsson of ega acts durng a strke may be decared to have ost hs empoyment status. . ." It can be geaned unerrngy from the aforected provson of aw n pont, however, that an ordnary strkng empoyee can not be termnated for mere partcpaton n an ega strke. There must be proof that he commtted ega acts durng the strke 17 and the strker who partcpated n the commsson of ega act must be dented. But proof beyond reasonabe doubt s not requred. Substanta evdence avaabe under the attendant crcumstances, whch may |ustfy the mposton of the penaty of dsmssa, may sumce. In the andmark case of Ang !ibay vs. C/R, 1= the court rued "Not ony must there be some evdence to support a ndng or concuson, but the evdence must be "substanta". Substanta evdence s more than a mere scnta. It means such reevant evdence that a reasonabe mnd mght accept as sumcent to support a concuson." Respondent company contends that sumcent testmona, documentary and rea evdence, ncudng the photographs supposedy taken by a certan Mr. Ponce, were presented at the arbtraton eve. It s argued that the sad pctures best show the partcpaton of the strkers n the commsson of ega acts n the course of the strke. In connecton therewth, t s worthy to pont out the soe bass of the NLRC for decarng the oss of empoyment status of pettoner |oe Densng, to wt: ATTY. PINTOR: O: Now, Mr. Ponce, on page 1 of your amdavt, paragraph 4 thereof, you aeged that: "Whe n the gate, I saw severa strkers of Cenapro bocked ts gate and prevented the truck from proceedng to ts destnaton." Who were these severa workers you referred to, n ths amdavt of yours? WITNESS: A. The strkers. HON. LABOR ARBITER: O. Are you referrng to the companants n ths case who are now present? WITNESS: A. Yes sr, I am referrng to AIU members. HON, LABOR ARBITER: Make t of record that the wtness s referrng to the ve persons nsde the court namey: Rosato Bentuan, Are |orda, Ranufo Cabrestante, |ose Catnubay and "oel #ensing. 1> (emphass supped) A thngs studedy consdered, the court s not convnced that the quantum of proof on record hurded the substantaty of evdence test 20 to support a decson, a basc requrement n admnstratve ad|udcaton. If the sad pctures exhbted before the Labor Arbter portrayed the heren pettoners performng prohbted acts durng the strke, why were these pctures not exhbted for dentcaton of pettoners? Pettoners coud have been dented n such pctures, f they were reected theren, n the same manner that the awyer who examned Mr. Ponce, asked wtness Armamento to dentfy the Sherh Mr. Leahmon Too, thus: ATTY. PINTOR: O I refer your attenton Mr. Armamento to Exhbt "16". There s a person here wearng a short seeve barong tagaog. Can you pease te the Honorabe omce f you w be abe to dentfy ths person? WITNESS: A Yes, ths s the Sherh Mr. Leahmon Too. 21 The dentcaton of the aeged pctures of the strkers, f propery made, coud have been categorzed as substanta evdence, whch a reasonabe mnd may accept as adequate to support a concuson that |oe Densng partcpated n bockng the gate of respondent company. Very, the uncorroborated testmony of Mr. Ponce does not sumce to support a decaraton of oss of empoyment status of |oe Densng. Ths coud be the reason why the Labor Arbter and the NLRC, n ts decson dated August 15, 1994, uphed the renstatement of |oe Densng. The contenton of pettoners that the factua ndngs by the Labor Arbter, as tra omcer n the case, deserve much weght s tenabe. The NLRC s bound by the factua ndngs of the Labor Arbter as the atter was n a better poston to observe the demeanor and department of the wtnesses. "Absent any substanta proof that the tra court's decson was based on specuaton, the same must be accorded fu consderaton and shoud not be dsturbed on appea. 22 Premses studedy consdered, we are of the neuctabe concuson, and hod, that the NLRC gravey abused ts dscreton n decarng the oss of empoyment status of |oe Densng. As regards the other pettoners, Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana, ther renstatement s warranted. In ts resouton, the NLRC ad|udged pettoners as "not entrey fautess" n ght of the foowng reveaton of Mr. Ponce, to wt: ATTY. PINTOR: O. Mr. Ponce, I w refer you to a pcture prevousy marked as our Annex "H". Showng to you the sad pcture. In sad pcture, there are persons who are yng on the road. Can you pease dentfy who are these persons? WITNESS: A. They are the strkers. ATTY. PINTOR: O. Are you referrng to the AIU strkers the companants n ths case? WITNESS: A. Yes. Sr. 2A For the severest admnstratve penaty of dsmssa to attach, the errng strkers must be duy dented. Smpy referrng to them as "strkers", "AIU strkers" "companants n ths case" s not enough to |ustfy ther dsmssa. On the ssue of renstatement and payment of saares, the court aso nd for pettoners. Teng on the monetary award s Artce 223 of the Labor Code, the pertnent of whch reads: . . . In any event, the decson of the abor arbter renstatng a dsmssed empoyee sha be mmedatey executory, even pendng appea. The empoyee sha ether be admtted back to work under the same terms and condtons prevang pror to hs dsmssa or separaton or, at the opton of the empoyer, merey renstated n the payro. The postng of bond sha not stay the executon of the renstatement provded theren. . . . The NLRC Resouton of February 21, 1995 does not state any pausbe ground or bass for deetng the award for backwages. The mere fact that the pettoners were "not entrey fautess" s of no moment. Such ndng beow does not adversey ahect ther enttement to backwages. As opned by the NLRC n ts Decson of August 15, 1994, amrmng n ts entrety the concuson arrved at by the Labor Arbter "the ony opton eft to the appeant-company s whether to physcay renstate appeant workers or to renstate them on the payro." The unmertorous appea nterposed by the respondent company, et aone the faure to execute wth dspatch the award of renstatement deayed the payro renstatement of pettoners. But ther ong watng s not competey n van, for the court hods that ther (pettoners') saares and backwages must be computed from October 15, 1993 unt fu payment of ther separaton pay, wthout any deducton. Ths s n consonance wth the rung n the case of7ustamante vs. NLRC, 24 where payment of fu backwages wthout deductons was ordered. The four pettoners heren are entted to renstatement absent any |ust ground ther dsmssa. Consderng, however, that more than eght (8) years have passed snce sub|ect strke was staged, an award of separaton pay equvaent to one (1) month pay for every year of servce, n eu of renstatement, s deemed more practca and approprate to a the partes concerned. WHEREFORE, the petton s GRANTED; the Resouton of NLRC, dated February 21, 1995, s SET ASIDE, and the Decson of the Labor Arbter of October 8, 1993 REINSTATED, wth the modcaton that the pettoners, |oe Densng, Henedno Mrafuentes, Chrstopher Patentes, and Andres Te|ana, be pad fu backwages computed from October 15, 1993 unt fu payment of ther separaton pay. The payment of separaton pay n eu of renstatement, s hereby authorzed. No pronouncement as to costs. SO ORDERED. G.R. No. 12=6A2 u9u*( 5, 1>>> MSF ,IRE N. R"!!ER, INC., pettoner, vs. CO"R, OF PPELS a%& PHIL,RE. ,IRE <OR@ERS? "NION, respondents. MEN.O2, J.: Pettoner seeks a revew of the decson 1 of the Court of Appeas, dated March 20, 1997, whch set asde the order of the Regona Tra Court of Makat, dated |uy 2, 1996, n Cv Case No. 95-770, grantng pettoner's appcaton for a wrt of premnary n|uncton. The facts are as foows: A abor dspute arose between Phtread Tre and Rubber Corporaton (Phtread) and prvate respondent, Phtread Tre Workers' Unon (Unon), as a resut of whch the Unon ed on May 27, 1994 a notce of strke n the Natona Concaton and Medaton Board - Natona Capta Regon chargng Phtread wth unfar abor practces for aegedy engagng n unon-bustng for voaton of the provsons of the coectve barganng agreement. Ths was foowed by pcketng and the hodng of assembes by the Unon outsde the gate of Phtread's pant at Km. 21, East Servce Road, South Superhghway, Muntnupa, Metro Mana. Phtread, on the other hand, ed a notce of ock-out on May 30, 1994 whch t carred out on |une 15, 1994. In an order, dated September 4, 1994, 2 then Secretary of Labor Neves Confesor assumed |ursdcton over the abor dspute and certed t for compusory arbtraton. She en|oned the Unon from strkng and Phtread from ockng out members of the Unon. On December 9, 1994, durng the pendency of the abor dspute, entered nto a Memorandum of Agreement wth Sam Tyre Pubc Company Lmted (Sam Tyre), a subsdary of Sam Cement. Under the Memorandum of Agreement, Phtread's pant and equpment woud be sod to a new company (pettoner MSF Tre and Rubber, Inc.), 80% of whch woud be owned by Sam Tyre and 20% by Phtread, whe the and on whch the pant was ocated woud be sod to another company (Sucat Land Corporaton), 60% of whch woud be owned by Phtread and 40% by Sam Tyre. Ths was done and the Unon was nformed of the purchase of the pant by pettoner. Pettoner then asked the Unon to desst from pcketng outsde ts pant and to remove the banners, streamers, and tent whch t had paced outsde the pant's fence. As the Unon refused pettoner's request, pettoner ed on May 25, 1995 a compant for n|uncton wth damages aganst the Unon and the atter's omcers and drectors before the Regona Tra Court of Makat, Branch 59 where the case was docketed as Cv Case No. 95-770. On |une 13, 1995, the Unon moved to dsmss the compant aegng ack of |ursdcton on the part of the tra court. It nssted that the partes were nvoved n a abor dspute and that pettoner, beng a mere "ater ego" of Phtread, was not an "nnocent bystander." After pettoner made ts oher of evdence as we as the submsson of the partes' respectve memoranda, the tra court, n an order, dated March 25, 1996, dened pettoner's appcaton for n|uncton and dsmssed the compant. However, on pettoner's moton, the tra court, on |uy 2, 1996, reconsdered ts order, and granted an n|uncton. Its order read: 3 Consderng a that has been stated, the moton for reconsderaton s granted. The Order dated March 25, 1996 s reconsderaton and set asde. Panth's compant s renstated and defendant's moton to dsmss s DENIED. As regards panth's appcaton for the ssuance of a wrt of premnary n|uncton, the Court nds that the panth has estabshed a cear and sustanng rght to the n|unctve reef, hence, the same s GRANTED. Upon postng by the panth and approva by the Court of a bond n the amount of One Mon (P1,000,000.00) Pesos whch sha answer for any damage that the defendants may suher by reason of the n|uncton n the event that the Court may nay ad|udge that the panth s not entted thereto, et a wrt of premnary n|uncton ssue orderng the defendants and any other persons actng wth them and/or on ther behaf to desst mmedatey from conductng ther assemby n the area mmedatey outsde the panth's pant at Km. 21 East Servce Road, South Superhghway, Muntnupa, Metro Mana, and from pacng and/or constructng banners, streamers, posters and pacards, and/or tents/shantes or any other structure, on the fence of, and/or aong the sdewak outsde, the sad pant premses unt further from ths Court. SO ORDERED. 4 Wthout ng a moton for reconsderaton, the Unon ed on August 5, 1996 a petton for certiorari and prohbton before the Court of Appeas. On March 20, 1997, the appeate court rendered a decson grantng the Unon's petton and orderng the tra court to dsmss the cv case for ack of |ursdcton. Hence, ths petton for revew. Pettoner makes the foowng arguments n support of ts petton: a. The Court of Appeas erred n not summary dsmssng the Unon's petton for ts fase certcaton of non-forum shoppng and the Unon's faure to e a moton for reconsderaton before gong up to the Court of Appeas on a petton for certiorari. b. The Court of Appeas gravey erred n dsmssng Cv Case No. 95-770 for ack of |ursdcton and mert on the aeged grounds that MSF dd not have a cear and unmstakabe rght to entte t to a wrt of premnary n|uncton. c. The Court of Appeas' pronouncement that t has not touched upon the ssue of whether or not prvate respondent s a mere nnocent bystander to the abor dspute between Phtread and the Unon or upon the ssue of whether or not prvate respondent s a mere dummy or contnuty of Phtread s contrary to ts own concusons n the body of the decson, whch concusons are erroneous. d. The Court of Appeas gravey abused ts dscreton when t dsaowed the n|uncton based on Phtread's remanng operatons n the country and aowed the Unon to exercse ts rght to communcate the facts of ts abor dspute wthn MSF's premses, gven the percentage of nterest Phtread has n both MSF and the corporaton whch owns the and bearng sad pant. The ssues are (1) whether the Unon's faure to dscose the pendency of NCMB- NCR-NS-05-167-96 n ts certcaton of non-forum shoppng and ts faure to e a moton for reconsderaton of the order, dated |uy 2, 1996, of the tra court were fata to ts petton for revew before the Court of Appeas; and (2) whether pettoner has shown a cear ega rght to the ssuance of a wrt of n|uncton under the "nnocent bystander" rue. (irst. Forum shoppng s the nsttuton of two (2) or more actons or proceedngs grounded on the same cause on the supposton that one or the other court woud make a favorabe dsposton. 5 It s an act of mapractce and s prohbted and condemned as trng wth courts and abusng ther processes. 6 As hed n E:ecutive Secretary v.;ordon: 7 Forum-shoppng conssts of ng mutpe suts nvovng the same partes for the same cause of acton, ether smutaneousy or successvey, for the purpose of obtanng a favorabe |udgment. Thus, t has been hed that there s forum-shoppng - (1) whenever as a resut of an adverse decson one forum, a party seeks a favorabe decson (other than by appea or certiorari) n another, or (2) f, after he has ed a petton before the Supreme Court, a party es another before the Court of Appeas snce n such case he deberatey spts appeas "n the hope that even as one case n whch a partcuar remedy s sought s dsmssed, another case (oherng a smar remedy) woud st be open, or (3) where a party attempts to obtan a premnary n|uncton n another court after fang to obtan the same from the orgna court. In determnng whether or not there s forum-shoppng, what s mportant s the vexaton caused the courts and partes-tgant by a party who asks dherent courts and/or admnstratve agences to rue on the same or reated causes and/or grant the same or substantay the same reefs and n the process creatng the possbty of conctng decsons beng rendered by the dherent fora upon the same ssues. 8 Pettoner asserts that the Court of Appeas shoud have dsmssed the Unon's petton for revew on the ground that the certcaton of non-forum shoppng was fase and per|urous as a resut of the Unon's faure to menton the exstence of NCMB-NCR-NS-05-167-96, a proceedng nvovng the same partes and pendng before the Natona Concaton and Medaton Board. The argument s wthout mert. Pettoner was a party to the proceedngs before the Natona Concaton and Medaton Board n whch an order, dated September 8, 1994, was ssued by then Secretary of Labor Neves Confesor, en|onng any strke or ock-out by the partes. 9 It was pettoner whch ntated the acton for n|uncton before the tra court. Aggreved by the n|unctve order ssued by the ower court, the Unon was forced to e a petton for revew before the Court of Appeas. We cannot understand why pettoner shoud compan that no menton of the pendency of the arbtraton case before the abor department was made n the certcate of non-forum shoppng attached to the Unon's petton n the Court of Appeas. The petton of the Unon n the Court of Appeas was provoked by pettoner's acton n seekng n|uncton from the tra court when t coud have obtaned the same reef from the Secretary of Labor. Indeed, by focusng on the Unon's certcaton before the appeate court, pettoner faed to notce that ts own certcaton before the ower court suhered from the same omsson for whch t fauts the Unon. Athough the body of pettoner's compant mentons NCMB-NCR-NS-05-167-96, ts own certcaton s sent concernng ths matter. 10 It s not n keepng wth the requrements of farness for pettoner to demand strct appcaton of the prohbton aganst forum- shoppng, when t, too, s guty of the same omsson. Second. Pettoner asserts that ts status as an "nnocent bystander" wth respect to the abor dspute between Phtread and the Unon enttes t to a wrt of n|uncton from the cv courts and that the appeate court erred n not uphodng ts corporate personaty as ndependent of Phtread's. In hilippine -ssociation o, (ree Labor Unions (-(LU) v. Cloribel, 11 ths Court, through |ustce |.B.L. Reyes, stated the "nnocent bystander" rue as foows: The rght to pcket as a means of communcatng the facts of a abor dspute s a phase of the freedom of speech guaranteed by the consttuton. If peacefuy carred out, t can not be curtaed even n the absence of empoyer-empoyee reatonshp. The rght s, however, not an absoute one. Whe peacefu pcketng s entted to protecton as an exercse of free speech, we beeve the courts are not wthout power to conne or ocaze the sphere of communcaton or the demonstraton to the partes to the abor dspute, ncudng those wth reated nterest, and to nsuate estabshments or persons wth no ndustra connecton or havng nterest totay foregn to the context of the dspute. Thus the rght may be reguated at the nstance of thrd partes or "nnocent bystanders" f t appears that the nevtabe resut of ts s to create an mpresson that a abor dspute wth whch they have no connecton or nterest exsts between them and the pcketng unon or consttute an nvason of ther rghts. In one case decded by ths Court, we uphed a tra court's n|uncton prohbtng the unon from bockng the entrance to a feed m ocated wthn the compound of a our m wth whch the unon had a dspute. Athough sustaned on a dherent ground, no connecton was found between the two ms owned by two dherent corporatons other than ther beng stuated n the same premses. It s to be noted that n the nstances cted, peacefu pcketng has not been totay banned but merey reguated. And n one Amercan case, a pcket by a abor unon n front of a moton pcture theater wth whch the unon had a abor dspute was en|oned by the court from beng extended n front of the man entrance of the budng housng the theater wheren other stores operated by thrd persons were ocated. 12 (Emphass added) Thus, an "nnocent bystander," who seeks to en|on a abor strke, must satsfy the court that asde from the grounds speced n Rue 58 of the Rues of Court, t s entrey dherent from, wthout any connecton whatsoever to, ether party to the dspute and, therefore, ts nterests are totay foregn to the context thereof. For nstance, n -(LU v.Cloribel, supra, ths Court hed that Wengton and Gaang were entrey separate enttes, dherent from, and wthout any connecton whatsoever to, the Metropotan Bank and Trust Company, aganst whom the strke was drected, other than the ncdenta fact that they are the bank's andord and co-essee housed n the same budng, respectvey. Smary, n Li3ay3ay ublications, /nc. v. ermanent Concrete 8or1ers Union, 13 ths Court rued thatLi3ay3ay was an "nnocent bystander" and thus entted to en|on the unon's strke because Lwayway's ony connecton wth the empoyer company was the fact that both were stuated n the same premses. In the case at bar, pettoner cannot be sad not to have such on to the dspute. As correcty observed by the appeate court: Comng now to the case before us, we nd that the "negotaton, contract of sae, and the post transacton" between Phtread, as vendor, and Sam Tyre, as vendee, reveas a ega reaton between them whch, n the nterest of pettoner, we cannot gnore. To be sure, the transacton between Phtread and Sam Tyre, was not a smpe sae whereby Phtread ceased to have any propretary rghts over ts sod assets. On the contrary, Phtread remans as 20% owner of prvate respondent and 60% owner of Sucat Land Corporaton whch was kewse ncorporated n accordance wth the terms of the Memorandum of Agreement wth Sam Tyre, and whch now owns the and were sub|ect pant s ocated. Ths, together wth the fact that prvate respondent uses the same pant or factory; smar or substantay the same workng condtons; same machnery, toos, and equpment; and manufacture the same products as Phtread, ead us to safey concude that prvate respondent's personaty s so cosey nked to Phtread as to bar ts enttement to an n|unctve wrt. Stated dherenty, gven ts cose nks wth Phtread as to bar ts enttement to an n|unctve wrt. Stated dherenty, gven ts cose nks wth Phtread, we nd no cear and unmstakabe rght on the part of prvate respondent to entte t to the wrt of premnary n|uncton t prayed for beow. x x x x x x x x x We stress that n so rung, we have not touched on the ssue of . . . whether or not prvate s a mere dummy or contnuaton of Phtread . . . . 14 Athough, as pettoner contends, the corporate cton may be dsregarded where t s used to defeat pubc convenence, |ustfy wrong, protect fraud, defend crme, or where the corporaton s used as a mere ater-ego or busness condut, 15 t s not these standards but those of the "nnocent bystander" rue whch govern whether or not pettoner s to an n|unctve wrt. Snce pettoner s not an "nnocent bystander", the tra court's order, dated |uy 2, 1996, s a patent nuty, the tra court havng no |ursdcton to ssue the wrt of n|uncton. No moton for reconsderaton need be ed where the order s nu and vod. 16 WHEREFORE, petton s hereby DENIED and the decson of the Court of Appeas s AFFIRMED.<=3phi<.n>t SO ORDERED. G.R. No. 140>>2 Mar36 25, 2004 SMHNG MNGGG< S S"LPICIO LINES, INC.CNFL", RO.OLFO LIN.,O, RO/"E ,N, -ESSIE LIM, S"SN ,OPCIO, LY.. PSC"L, !ERNR.O LCN,R, GELCIO .ES/"I,.O, RO.RIGO 0ELINO, LEONR.O N.R.E, .NILO CH", MN.O E"GENIO, CL0IN LOPE2, N.RES !SCO, -R., a%& CIRILO LON, 'e()()o%er*, +*. S"LPICIO LINES, INC., re*'o%&e%(. D E C I S I O N SANDOVAL-GUTIERREZ, ".: A strke s a powerfu weapon of the workng cass. But ke a senstve exposve, t must be handed carefuy, est t bows up n the workers own hands. 1 Thus, the rght to strke has to be pursued wthn the bounds of aw. For our resouton s the nstant petton for revew on certiorari under Rue 45 of the 1997 Rues of Cv Procedure, as amended, assang the Decson 2 dated May 28, 1999 and the Resouton 3 dated November 25, 1999 rendered by the Court of Appeas n CA-G.R. SP No. 51322, entted "Samahang &anggaga3a sa Sulpicio Lines, /nc. ? N-(LU vs. National Labor Relations Commission and Sulpicio Lines, /nc." The factua antecedents as geaned from the records are: On February 5, 1991, Supco Lnes, Inc. (heren respondent) and the Samahang Manggagawa sa Supco Lnes Inc. - NAFLU (heren pettoner) executed a coectve barganng agreement (CBA) wth a term of ve (5) years (from October 17, 1990 to October 16, 1995). After three (3) years or on December 15, 1993, pettoner unon and respondent company started ther negotaton on the CBAs economc provsons. 4 But ths negotaton remaned at staemate. On March 1, 1994, pettoner ed wth the Natona Concaton and Medaton Board (NCMB), Natona Capta Regon, a notce of strke due to coectve barganng deadock, docketed as NCMB-NCR-NS-03-118-94. For ts part, respondent, on March 21, 1994, ed wth the Omce of the Secretary, Department of Labor and Empoyment a petton prayng that the Labor Secretary assume |ursdcton over the controversy. On March 23, 1994, former Labor Secretary Neves R. Confesor ssued an Order assumng |ursdcton over the abor dspute pursuant to Artce 263 (g) of the Labor Code, as amended, thus: "WHEREFORE PREMISES CONSIDERED, ths Omce assumes |ursdcton over the abor dspute at Supco Lnes, Inc. pursuant to Artce 263 (g) of the Labor Code, as amended. "Accordngy, any strke or ockout whether actua or ntended s hereby en|oned. "Further, the partes are drected to cease and desst from commttng any and a acts that mght exacerbate the stuaton. "SO ORDERED." Meanwhe, on May 20, 1994, pettoner ed wth the NCMB a second notce of strke aegng that respondent company commtted acts 5 consttutng unfar abor practce amountng to unon bustng, docketed as NCMB NCR-05-261-94. Provoked by respondents aeged unfar abor practce/s, pettoner unon mmedatey conducted a strke vote. Thus, on May 20, 1994, about 9:30 ocock n the mornng, 167 rank-and-e empoyees, omcers and members of pettoner, dd not report for work and nstead gathered n front of Per 12, North Harbor at Mana. As a remeda measure, former Labor Secretary Confesor ssued an Order dated May 20, 1994 drectng the strkng empoyees to return to work; and certfyng the abor dspute to the Natona Labor Reatons Commsson (NLRC) for compusory arbtraton. Ths certed abor dspute was docketed as NLRC Case No. CC-0083- 94. Meanwhe, respondent company ed wth the NLRC a compant for "ega strke/cearance for termnaton," docketed as NLRC NCR Case No. 00-05-04705-94. On September 29, 1995, the NLRC ssued a Resouton 6 decarng the strke of pettoners omcers and members ega, wth notce to respondent of the opton to termnate ther (pettoners omcers) empoyment. In the same Resouton, the NLRC dsmssed pettoners compant aganst respondent, thus: "WHEREFORE, premses consdered, after a carefu and |udcous consderaton of the facts, arguments and evdence thus adduced, t s the consdered opnon of the Commsson that the unon (Samahang Manggagawa sa Supco Lnes, Inc.) had ceary engaged n an ega strke on May 20, 1994, when ts omcers and members actvey partcpated n a we concerted refusa, stoppage and cessaton to render work at Supco Lnes, Inc.. In cear voaton not ony of the procedura requrements of a vad strke, but worse, n cear and batant contraventon of the assumpton order of the Secretary of Labor and Empoyment. Consequenty, the foowng unon omcers named n the compant, to wt: 1) Aan F. Aguhar 9) Rodrgo Aveno 2) Rodofo Andato 10) Leonardo Andrade 3) Roque Tan 11) Dano Chua 4) |esse Lm 12) Amando Eugeno 5) Susan Topaco 13) Cavn Lopez 6) Lydda Pascua 14) Andres Rasco, |r. 7) Bernardo Acantara 15) Cro Aon 8) Geaco Dequtado are decared to have ost ther empoyment status wth the company, and the atter may now, f t so desres, termnate ther empoyment wth t. The unons compant aganst the company s hereby DISMISSED for ack of mert. "SO ORDERED." Pettoner ed a moton for reconsderaton but was dened by the NLRC n a Resouton 7 dated |anuary 15, 1996. On March 19, 1996, pettoner ed wth ths Court a petton for certorar assang the NLRC Resoutons. Pursuant to our rung n St. &artin's (uneral )ome vs. NLRC, 8 we referred the petton to the Court of Appeas for ts approprate acton and dsposton. On May 28, 1999, the Court of Appeas rendered a Decson amrmng the NLRC Resoutons. The Appeate Court hed (1) that the NLRC has |ursdcton to resove the ssue of egaty of the strke; (2) that the May 20, 1994 temporary work stoppage by the omcers and members of pettoner amounted to an ega strke; (3) that even assumng that respondent commtted unfar abor practce/s, st, the strke s ega because t faed to compy wth the mandatory procedura requrements of a vad strke under Artce 263 (c) and (f) of the Labor Code, as amended; and (4) that the dsmssa of pettoners omcers who knowngy partcpated n an ega strke s n accordance wth Artce 264 (a) of the Labor Code, as amended. On October 20, 1995, pettoner ed a moton for reconsderaton but was dened by the Court of Appeas n a Resouton dated November 25, 1999. Hence, ths petton for revew on certiorari. Pettoner aeged that the Court of Appeas serousy erred (1) n hodng that the one-day work stoppage of pettoners omcers and members s an ega strke; (2) n sustanng the dsmssa from the servce of ts omcers; and (3) n rung that the NLRC has |ursdcton over a petton to decare the strke ega. The basc ssue for our determnaton s whether the strke staged by pettoners omcers and members s ega. Artces 263 and 264 of the Labor Code, as amended, provde: "ART. 263. STRIKES, PICKETING AND LOCKOUTS. x x x (c) In cases of barganng deadocks, the duy certed or recognzed barganng agent may e a notce of strke x x x wth the Mnstry (now Department) at east 30 days before the ntended date thereof. In cases of unfar abor practce, the perod of notce sha be 15 days and n the absence of a duy certed or recognzed barganng agent, the notce of strke may be ed by any egtmate abor organzaton n behaf of ts members. However, n case of dsmssa from empoyment of unon omcers duy eected n accordance wth the unon consttuton and by- aws, whch may consttute unon bustng where the exstence of the unon s threatened, the 15-day coong-oh perod sha not appy and the unon may take acton mmedatey. x x x (f) A decson to decare a strke must be approved by a ma|orty of the tota unon membershp n the barganng unt concerned, obtaned by secret baot n meetngs or referenda caed for that purpose. x x x. The decson sha be vad for the duraton of the dspute based on substantay the same grounds consdered when the strke or ockout vote was taken. The Mnstry (now Department) may at ts own ntatve or upon the request of any ahected party, supervse the conduct of the secret baotng. In every case, the unon x x x sha furnsh the Mnstry (now Department) the resuts of the votng at east seven days before the ntended strke or ockout, sub|ect to the coong-oh perod heren provded. x x x. ART. 264. R@)/7/!E# -C!/A/!/ES. (a) No abor organzaton or empoyer sha decare a strke or ockout wthout rst havng barganed coectvey n accordance wth Tte VII of ths Book or wthout rst havng ed the notce requred n the precedng artce or wthout the necessary strke or ockout vote rst havng been obtaned and reported to the Mnstry (now Department). x x x." Foowng are the Impementng Gudenes of the above provsons ssued by the Department of Labor and Empoyment: 1. A strke sha be ed wth the Department of Labor and Empoyment at east 15 days f the ssues rased are unfar abor practce or at east 30 days f the ssue nvoved barganng deadock. However, n case of dsmssa from empoyment of unon omcers duy eected n accordance wth the unon consttuton and by-aws, whch may consttute unon bustng where the exstence of the unon s threatened, the 15-day coong- oh perod sha not appy and the unon may take acton mmedatey; 2. The strke sha be supported by a ma|orty vote of the members of the unon obtaned by secret baot n a meetng caed for the purpose; and 3. A strke vote sha be reported to the Department of Labor and Empoyment at east seven (7) days before the ntended strke. There s no showng that the pettoner unon observed the 7-day strke ban; and that the resuts of the strke vote were submtted by pettoners to the Department of Labor and Empoyment at east seven (7) days before the strke. We thus hod that for fang to compy wth the mandatory requrements of Artce 263 (c) and (f) of the Labor Code, the strke mounted by pettoner unon on May 20, 1994 s ega. In ;old City /ntegrated ort Service, /nc. vs. NLRC, 9 we stressed that "the anguage of the aw eaves no room for doubt that the coong-oh perod and the seven-day strke ban after the strke-vote report were ntended to be mandatory." But pettoner nssts that the strke can st be decared ega for t was done n good fath, beng n response to what ts omcers and members honesty perceved as unfar abor practce or unon bustng commtted by respondent. Pettoners accusaton of unon bustng s bereft of any proof. We scanned the records very carefuy and faed to dscern any evdence to sustan such charge. In !iu vs. NLRC, 10 we hed: "x x x. It s the unon, therefore, who had the burden of proof to present substanta evdence to support ts aegatons (of unfar abor practces commtted by management). "x x x. "x x x, but n the case at bar the facts and the evdence dd not estabsh even at east a ratona bass why the unon woud wed a strke based on aeged unfar abor practces t dd not even bother to substantate durng the concaton proceedngs. It s not enough that the unon beeved that the empoyer commtted acts of unfar abor practce when the crcumstances ceary negate even a prma face showng to warrant such a beef." We expaned n National (ederation o, Labor vs. NLRC 11 that "wth the enactment of Repubc Act No. 6715 whch took ehect on March 21, 1989, the rue now s that such requrements as the ng of a notce of strke, strke vote, and notce gven to the Department of Labor are mandatory n nature. Thus, even f the unon acted n good fath n the beef that the company was commttng an unfar abor practce, f no notce of strke and a strke vote were conducted, the sad strke s ega." In a desperate attempt to |ustfy ts poston, pettoner nssts that what transpred on May 20, 1994 was not a strke but merey a "one-day work absence" 12 or a "smpe act of absenteesm". 13 We are not convnced. A strke, as dened n Artce 212 (o) of the Labor Code, as amended, means "any temporary stoppage of work by the concerted acton of empoyees as a resut of an ndustra or abor dspute." The term "strke" sha comprse not ony concerted work stoppages, but aso sowdowns, mass eaves, stdowns, attempts to damage, destroy or sabotage pant equpment and factes, and smar actvtes. 14 The basc eements of a strke are present n the case at bar. Frst, pettoners omcers and members numberng 167, n a concerted manner, dd not report for work on May 20, 1994; second, they gathered n front of respondents omce at Per 12, North Harbor at Mana to partcpate n a strke votng conducted by pettoner; and thrd, such unon actvty was an aftermath of pettoners second notce of strke by reason of respondents unfar abor practce/s. Ceary, what transpred then was a strke because the cessaton of work by pettoners concerted acton resuted from a abor dspute. Invokng compasson, pettoner peads that ts omcers who partcpated n the one- day strke shoud not be dsmssed from the servce, consderng that respondents busness actvtes were not nterrupted, much ess parayzed. Whe we sympathze wth ther pght, however, we must take care that n the contest between abor and capta, the resuts acheved are far and n conformty wth the aw. 15 Pertnent s Artce 264 (a) of the same Code, thus: "ART. 264. R@)/7/!E# -C!/A/!/ES. "x x x. Any unon omcer who knowngy partcpates n an ega strke and any worker or unon omcer who knowngy partcpates n the commsson of ega acts durng a strke may be decared to have ost hs empoyment status: Provded, That mere partcpaton of a worker n a awfu strke sha not consttute sumcent ground for termnaton of hs empoyment, even f a repacement had been hred by the empoyer durng such awfu strke. x x x." It s worth reteratng that the strke s ega for faure of pettoner to submt the strke vote to the Department of Labor and Empoyment at east seven (7) days pror thereto. Aso, pettoner faed to prove that respondent company commtted any unfar abor practce. Amd ths background, the partcpaton of the unon omcers n an ega strke forfets ther empoyment status. In !ele,un1en Semiconductors Employees UnionB((8 vs. Secretary o, Labor and Employment, 16 we expaned - "The ehects of such ega strkes, outned n Artce 265 (now Artce 264) of the Labor Code, make a dstncton between workers and unon omcers who partcpate theren. "A unon omcer who knowngy partcpates n an ega strke and any worker or unon omcer who knowngy partcpates n the commsson of ega acts durng a strke may be decared to have ost ther empoyment status. An ordnary strkng worker cannot be termnated for mere partcpaton n an ega strke. There must be proof that he commtted ega acts durng a strke. A unon omcer, on the other hand, may be termnated from work when he knowngy partcpates n an ega strke, and ke other workers, when he commts an ega act durng a strke." Moreover, pettoner mantans that the Labor Arbter, not the NLRC, shoud have taken cognzance of the case at bar. We do not agree. In /nternational harmaceuticals, /nc. v. Secretary o, Labor and Employment, 17 we hed: x x x |T|he Secretary was expcty granted by Artce 263 (g) of the Labor Code the authorty to assume |ursdcton over a abor dspute causng or key to cause a strke or ockout n an ndustry ndspensabe to the natona nterest, and decde the same accordngy. Necessary, ths authorty to assume |ursdcton over the sad abor dspute must ncude and extend to a questons and controverses arsng therefrom, ncudng cases over whch the Labor Arbter has excusve |ursdcton (underscorng supped). "In the same manner, when the Secretary of Labor and Empoyment certes the abor dspute to the NLRC for compusory arbtraton the atter s concomtanty empowered to resove a questons and controverses arsng therefrom ncudng cases otherwse beongng orgnay and excusvey to the Labor Arbter." WHEREFORE, the petton s DENIED. The Decson and Resouton of the Court of Appeas dated May 28, 1999 and November 25, 1999 are hereby AFFIRMED. SO ORDERED.