CAPITOL MEDICAL CENTER, INC., petitioner, vs.

NATIONAL LABOR RELATIONS

COMMISSION, JAIME IBABAO, JOSE BALLESTEROS, RONALD CENTENO,
NARCISO SARMIENTO, EDUARDO CANAVERAL, SHERLITO DELA CRUZ,
SOFRONIO COMANDAO, MARIANO GALICIA, RAMON MOLOD, CARMENCITA
SARMIENTO, HELEN MOLOD, ROSA COMANDAO, ANGELITO CUIZON, ALEX
MARASIGAN, JESUS CEDRO, ENRICO ROQUE, JAY PERILLA, HELEN MENDOZA,
MARY GLADYS GEMPEROSO, NINI BAUTISTA, ELENA MACARUBBO, MUSTIOLA
SALVACION DAPITO, ALEXANDER MANABE, MICHAEL EUSTAQUIO, ROSE
AZARES, FERNANDO MANZANO, HENRY VERA CRUZ, CHITO MENDOZA,
FREDELITA TOMAYAO, ISABEL BRUCAL, MAHALKO LAYACAN, RAINIER
MANACSA, KAREN VILLARENTE, FRANCES ACACIO, LAMBERTO CONTI, LORENA
BEACH, JUDILAH RAVALO, DEBORAH NAVE, MARILEN CABALQUINTO,
EMILIANA RIVERA, MA. ROSARIO URBANO, ROWENA ARILLA, CAPITOL
MEDICAL CENTER EMPLOYEES ASSOCIATION-AFW, GREGORIO DEL PRADO,
ARIEL ARAJA, and JESUS STA. BARBARA, JR., respondents.
DECISION
CALLEJO, SR., J.:

This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-
G.R. SP No. 57500 and its Resolution denying the motion for reconsideration
thereof.

The Antecedents[2]

Whether the respondent Capitol Medical Center Employees Association-Alliance of

Filipino Workers (the Union, for brevity) was the exclusive bargaining agent of the
rank-and-file employees of the petitioner Capitol Medical Center, Inc. had been the
bone of contention between the Union and the petitioner. The petitioners refusal to
negotiate for a collective bargaining agreement (CBA) resulted in a union-led strike
on April 15, 1993.

The Union had to contend with another union the Capitol Medical Center Alliance of
Concerned Employees (CMC-ACE) which demanded for a certification election
among the rank-and-file employees of the petitioner. Med-Arbiter Brigida Fadrigon
granted the petition, and the matter was appealed to the Secretary of Labor and
Employment (SOLE). Undersecretary Bienvenido E. Laguesma rendered a
Resolution on November 18, 1994 granting the appeal. He, likewise, denied the
motion filed by the petitioner and the CMC-ACE. The latter thereafter brought the
matter to the Court which rendered judgment on February 4, 1997 affirming the
resolution of Undersecretary Laguesma, thus:

1. Dismissing the petition for certification election filed by the Capitol Medical
Center Alliance of Concerned Employees-United Filipino Services Workers for lack
of merit; and
2. Directing the management of the Capitol Medical Center to negotiate a CBA with
the Capitol Medical Center Employees Association-Alliance of Filipino Workers, the
certified bargaining agent of the rank-and-file employees.[3]

The decision of the Court became final and executory. Thereafter, in a Letter dated
October 3, 1997 addressed to Dr. Thelma N. Clemente, the President and Director of
the petitioner, the Union requested for a meeting to discuss matters pertaining to a
negotiation for a CBA, conformably with the decision of the Court.[4] However, in a
Letter to the Union dated October 10, 1997, Dr. Clemente rejected the proposed
meeting, on her claim that it was a violation of Republic Act No. 6713 and that the
Union was not a legitimate one. On October 15, 1997, the petitioner filed a Petition
for the Cancellation of the Unions Certificate of Registration with the Department of
Labor and Employment (DOLE) on the following grounds:

3) Respondent has failed for several years to submit annually its annual financial
statements and other documents as required by law. For this reason, respondent
has long lost its legal personality as a union.

4) Respondent also engaged in a strike which has been declared illegal by the
National Labor Relations Commission.[5]

Apparently unaware of the petition, the Union reiterated its proposal for CBA
negotiations in a Letter dated October 16, 1997 and suggested the date, time and
place of the initial meeting. The Union further reiterated its plea in another Letter[6]
dated October 28, 1997, to no avail.

Instead of filing a motion with the SOLE for the enforcement of the resolutions of
Undersecretary Laguesma as affirmed by this Court, the Union filed a Notice of
Strike on October 29, 1997 with the National Conciliation and Mediation Board
(NCMB), serving a copy thereof to the petitioner. The Union alleged as grounds for
the projected strike the following acts of the petitioner: (a) refusal to bargain; (b)
coercion on employees; and (c) interference/ restraint to self-organization.[7]

A series of conferences was conducted before the NCMB (National Capital Region),
but no agreement was reached. On November 6, 1997, the petitioner even filed a
Letter with the Board requesting that the notice of strike be dismissed;[8] the Union
had apparently failed to furnish the Regional Branch of the NCMB with a copy of a
notice of the meeting where the strike vote was conducted.

On November 20, 1997, the Union submitted to the NCMB the minutes[9] of the
alleged strike vote purportedly held on November 10, 1997 at the parking lot in
front of the petitioners premises, at the corner of Scout Magbanua Street and Panay
Avenue, Quezon City. It appears that 178 out of the 300 union members participated
therein, and the results were as follows: 156 members voted to strike; 14 members
cast negative votes; and eight votes were spoiled.[10]
On November 28, 1997, the officers and members of the Union staged a strike.
Subsequently, on December 1, 1997, the Union filed an ex parte motion with the
DOLE, praying for its assumption of jurisdiction over the dispute. The Union
likewise prayed for the imposition of appropriate legal sanctions, not limited to
contempt and other penalties, against the hospital director/president and other
responsible corporate officers for their continuous refusal, in bad faith, to bargain
collectively with the Union, to adjudge the same hospital director/president and
other corporate officers guilty of unfair labor practices, and for other just, equitable
and expeditious reliefs in the premises.[11]

On December 4, 1997, the SOLE issued an Order, assuming jurisdiction over the
ongoing labor dispute. The decretal portion of the order reads:

WHEREFORE, this Office now assumes jurisdiction over the labor disputes at Capitol
Medical Center pursuant to Article 263(g) of the Labor Code, as amended.
Consequently, all striking workers are directed to return to work within twenty-four
(24) hours from the receipt of this Order and the management to resume normal
operations and accept back all striking workers under the same terms and
conditions prevailing before the strike. Further, parties are directed to cease and
desist from committing any act that may exacerbate the situation.

Moreover, parties are hereby directed to submit within 10 days from receipt of this
Order proposals and counter-proposals leading to the conclusion of the collective
bargaining agreements in compliance with aforementioned Resolution of the Office
as affirmed by the Supreme Court.

SO ORDERED.[12]

In obedience to the order of the SOLE, the officers and members of the Union
stopped their strike and returned to work.

For its part, the petitioner filed a petition[13] to declare the strike illegal with the
National Labor Relations Commission (NLRC), docketed as NLRC NCR Case No. 00-
12-08644-97. In its position paper, the petitioner appended the affidavit of Erwin
Barbacena, the overseer of the property across the hospital which was being used as
a parking lot, at the corner of Scout Magbanua Street and Panay Avenue, Quezon
City. Also included were the affidavits of Simon J. Tingzon and Reggie B. Barawid,
the petitioners security guards assigned in front of the hospital premises. They
attested to the fact that no secret balloting took place at the said parking lot from
6:00 a.m. to 7:00 p.m. of November 10, 1997.[14] The petitioner also appended the
affidavit of Henry V. Vera Cruz, who alleged that he was a member of the Union and
had discovered that signatures on the Statements of Cash Receipt Over
Disbursement submitted by the Union to the DOLE purporting to be his were not his
genuine signatures;[15] the affidavits of 17 of its employees, who declared that no
formal voting was held by the members of the Union on the said date, were also
submitted. The latter employees also declared that they were not members of any
union, and yet were asked to sign documents purporting to be a strike vote
attendance and unnumbered strike vote ballots on different dates from November 8
to 11, 1997.

In their position paper, the respondents appended the joint affidavit of the Union
president and those members who alleged that they had cast their votes during the
strike vote held on November 10, 1997.[16]

In the meantime, on September 30, 1998, the Regional Director of the DOLE
rendered a Decision denying the petition for the cancellation of the respondent
Unions certificate of registration. The decision was affirmed by the Director of the
Bureau of Labor Relations on December 29, 1998.

In a parallel development, Labor Arbiter Facundo L. Leda rendered a Decision on

December 23, 1998 in NLRC NCR Case No. 00-12-08644-97 in favor of the
petitioner, and declared the strike staged by the respondents illegal. The fallo of the
decision reads:

1. Declaring as illegal the strike staged by the respondents from November 28, 1997
to December 5, 1997;

2. Declaring respondent Jaime Ibabao, in his capacity as union president, the other
union officers, and respondents Ronald Q. Centeno, Michael Eustaquio and Henry
Vera Cruz to have lost their employment status with petitioner; and

3. Ordering the above respondents to pay, jointly and severally, petitioner the
amount of Two Hundred Thousand Pesos (P200,000.00) by way of damages.[17]

The Labor Arbiter ruled that no voting had taken place on November 10, 1997;
moreover, no notice of such voting was furnished to the NCMB at least twenty-four
(24) hours prior to the intended holding of the strike vote. According to the Labor
Arbiter, the affidavits of the petitioners 17 employees who alleged that no strike
vote was taken, and supported by the affidavit of the overseer of the parking lot and
the security guards, must prevail as against the minutes of the strike vote presented
by the respondents. The Labor Arbiter also held that in light of Article 263(9) of the
Labor Code, the respondent Union should have filed a motion for a writ of execution
of the resolution of Undersecretary Laguesma which was affirmed by this Court
instead of staging a strike.

The respondents appealed the decision to the NLRC which rendered a Decision[18]
on June 14, 1999, granting their appeal and reversing the decision of the Labor
Arbiter. The NLRC also denied the petitioners petition to declare the strike illegal. In
resolving the issue of whether the union members held a strike vote on November
10, 1997, the NLRC ruled as follows:
We find untenable the Labor Arbiters finding that no actual strike voting took place
on November 10, 1997, claiming that this is supported by the affidavit of Erwin
Barbacena, the overseer of the parking lot across the hospital, and the sworn
statements of nineteen (19) (sic) union members. While it is true that no strike
voting took place in the parking lot which he is overseeing, it does not mean that no
strike voting ever took place at all because the same was conducted in the parking
lot immediately/directly fronting, not across, the hospital building (Annexes 1-J, 1-K
to 1-K-6). Further, it is apparent that the nineteen (19) (sic) hospital employees,
who recanted their participation in the strike voting, did so involuntarily for fear of
loss of employment, considering that their Affidavits are uniform and pro forma
(Annexes H-2 to H-19).[19]

The NLRC ruled that under Section 7, Rule XXII of DOLE Order No. 9, Series of 1997,
absent a showing that the NCMB decided to supervise the conduct of a secret
balloting and informed the union of the said decision, or that any such request was
made by any of the parties who would be affected by the secret balloting and to
which the NCMB agreed, the respondents were not mandated to furnish the NCMB
with such notice before the strike vote was conducted.[20]

The petitioner filed a motion for the reconsideration of the decision, but the NLRC
denied the said motion on September 30, 1999.[21]

The petitioner filed a petition for certiorari with the CA assailing the decision and
resolution of the NLRC on the following allegation:

PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION (NLRC)

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, ACTED CAPRICIOUSLY, AND CONTRAVENED THE LAW AND
ESTABLISHED JURISPRUDENCE IN REVERSING THE LABOR ARBITERS DECISION
DATED DECEMBER 23, 1998 (ANNEX E) AND IN UPHOLDING THE LEGALITY OF
THE STRIKE STAGED BY PRIVATE RESPONDENTS FROM NOVEMBER 28, 1997 TO
DECEMBER 5, 1997.[22]

On September 29, 2000, the CA rendered judgment dismissing the petition and
affirming the assailed decision and resolution of the NLRC.

The petitioner filed the instant petition for review on certiorari under Rule 45 of the
Rules of Court on the following ground:

THE COURT OF APPEALS GRAVELY ERRED IN UPHOLDING THE NLRCS FINDING

THAT RESPONDENTS COMPLIED WITH THE LEGAL REQUIREMENTS FOR STAGING
THE SUBJECT STRIKE.[23]

The petitioner asserts that the NLRC and the CA erred in holding that the
submission of a notice of a strike vote to the Regional Branch of the NCMB as
required by Section 7, Rule XXII of the Omnibus Rules Implementing the Labor Code,
is merely directory and not mandatory. The use of the word shall in the rules, the
petitioner avers, indubitably indicates the mandatory nature of the respondent
Unions duty to submit the said notice of strike vote.

The petitioner contends that the CA erred in affirming the decision of the NLRC
which declared that the respondents complied with all the requirements for a lawful
strike. The petitioner insists that, as gleaned from the affidavits of the 17 union
members and that of the overseer, and contrary to the joint affidavit of the officers
and some union members, no meeting was held and no secret balloting was
conducted on November 10, 1997.

The petitioner faults the CA and the NLRC for holding that a meeting for a strike vote
was held on the said date by the respondents, despite the fact that the NLRC did not
conduct an ocular inspection of the area where the respondents members allegedly
held the voting. The petitioner also points out that it adduced documentary evidence
in the form of affidavits executed by 17 members of the respondent union which
remained unrebutted. The petitioner also posits that the CA and the NLRC erred in
reversing the finding of the Labor Arbiter; furthermore, there was no need for the
respondent union to stage a strike on November 28, 1997 because it had filed an
urgent motion with the DOLE for the enforcement and execution of the decision of
this Court in G.R. No. 118915.

The petition is meritorious.

We agree with the petitioner that the respondent Union failed to comply with the
second paragraph of Section 10, Rule XXII of the Omnibus Rules of the NLRC which
reads:

Section 10. Strike or lockout vote. A decision to declare a strike must be approved by
a majority of the total union membership in the bargaining unit concerned obtained
by secret ballot in meetings or referenda called for the purpose. A decision to
declare a lockout must be approved by a majority of the Board of Directors of the
employer, corporation or association or the partners obtained by a secret ballot in a
meeting called for the purpose.

The regional branch of the Board may, at its own initiative or upon the request of
any affected party, supervise the conduct of the secret balloting. In every case, the
union or the employer shall furnish the regional branch of the Board and notice of
meetings referred to in the preceding paragraph at least twenty-four (24) hours
before such meetings as well as the results of the voting at least seven (7) days
before the intended strike or lockout, subject to the cooling-off period provided in
this Rule.

Although the second paragraph of Section 10 of the said Rule is not provided in the
Labor Code of the Philippines, nevertheless, the same was incorporated in the
Omnibus Rules Implementing the Labor Code and has the force and effect of
law.[24]

Aside from the mandatory notices embedded in Article 263, paragraphs (c) and (f)
of the Labor Code, a union intending to stage a strike is mandated to notify the
NCMB of the meeting for the conduct of strike vote, at least twenty-four (24) hours
prior to such meeting. Unless the NCMB is notified of the date, place and time of the
meeting of the union members for the conduct of a strike vote, the NCMB would be
unable to supervise the holding of the same, if and when it decides to exercise its
power of supervision. In National Federation of Labor v. NLRC,[25] the Court
enumerated the notices required by Article 263 of the Labor Code and the
Implementing Rules, which include the 24-hour prior notice to the NCMB:

1) A notice of strike, with the required contents, should be filed with the DOLE,
specifically the Regional Branch of the NCMB, copy furnished the employer of the
union;

2) A cooling-off period must be observed between the filing of notice and the actual
execution of the strike thirty (30) days in case of bargaining deadlock and fifteen
(15) days in case of unfair labor practice. However, in the case of union busting
where the unions existence is threatened, the cooling-off period need not be
observed.

4) Before a strike is actually commenced, a strike vote should be taken by secret

balloting, with a 24-hour prior notice to NCMB. The decision to declare a strike
requires the secret-ballot approval of majority of the total union membership in the
bargaining unit concerned.

5) The result of the strike vote should be reported to the NCMB at least seven (7)
days before the intended strike or lockout, subject to the cooling-off period.

A union is mandated to notify the NCMB of an impending dispute in a particular

bargaining unit via a notice of strike. Thereafter, the NCMB, through its conciliator-
mediators, shall call the parties to a conference at the soonest possible time in order
to actively assist them in exploring all possibilities for amicable settlement. In the
event of the failure in the conciliation/mediation proceedings, the parties shall be
encouraged to submit their dispute for voluntary arbitration. However, if the parties
refuse, the union may hold a strike vote, and if the requisite number of votes is
obtained, a strike may ensue. The purpose of the strike vote is to ensure that the
decision to strike broadly rests with the majority of the union members in general
and not with a mere minority, and at the same time, discourage wildcat strikes,
union bossism and even corruption.[26] A strike vote report submitted to the NCMB
at least seven days prior to the intended date of strike ensures that a strike vote
was, indeed, taken. In the event that the report is false, the seven-day period affords
the members an opportunity to take the appropriate remedy before it is too
late.[27] The 15 to 30 day cooling-off period is designed to afford the parties the
opportunity to amicably resolve the dispute with the assistance of the NCMB
conciliator/mediator,[28] while the seven-day strike ban is intended to give the
DOLE an opportunity to verify whether the projected strike really carries the
imprimatur of the majority of the union members.[29]

The requirement of giving notice of the conduct of a strike vote to the NCMB at least
24 hours before the meeting for the said purpose is designed to (a) inform the
NCMB of the intent of the union to conduct a strike vote; (b) give the NCMB ample
time to decide on whether or not there is a need to supervise the conduct of the
strike vote to prevent any acts of violence and/or irregularities attendant thereto;
and (c) should the NCMB decide on its own initiative or upon the request of an
interested party including the employer, to supervise the strike vote, to give it ample
time to prepare for the deployment of the requisite personnel, including peace
officers if need be. Unless and until the NCMB is notified at least 24 hours of the
unions decision to conduct a strike vote, and the date, place, and time thereof, the
NCMB cannot determine for itself whether to supervise a strike vote meeting or not
and insure its peaceful and regular conduct. The failure of a union to comply with
the requirement of the giving of notice to the NCMB at least 24 hours prior to the
holding of a strike vote meeting will render the subsequent strike staged by the
union illegal.

In this case, the respondent Union failed to comply with the 24-hour prior notice
requirement to the NCMB before it conducted the alleged strike vote meeting on
November 10, 1997. As a result, the petitioner complained that no strike vote
meeting ever took place and averred that the strike staged by the respondent union
was illegal.

Conformably to Article 264 of the Labor Code of the Philippines[30] and Section 7,
Rule XXII of the Omnibus Rules Implementing the Labor Code,[31] no labor
organization shall declare a strike unless supported by a majority vote of the
members of the union obtained by secret ballot in a meeting called for that purpose.
The requirement is mandatory and the failure of a union to comply therewith
renders the strike illegal.[32] The union is thus mandated to allege and prove
compliance with the requirements of the law.

In the present case, there is a divergence between the factual findings of the Labor
Arbiter, on the one hand, and the NLRC and the CA, on the other, in that the Labor
Arbiter found and declared in his decision that no secret voting ever took place in
the parking lot fronting the hospital on November 10, 1997 by and among the 300
members of the respondent Union. Erwin Barbacena, the overseer of the only
parking lot fronting the hospital, and security guards Simon Tingzon and Reggie
Barawid, declared in their respective affidavits that no secret voting ever took place
on November 10, 1997; 17 employees of the petitioner also denied in their
respective statements that they were not members of the respondent Union, and
were asked to merely sign attendance papers and unnumbered votes. The NLRC and
the CA declared in their respective decisions that the affidavits of the petitioners 17
employees had no probative weight because the said employees merely executed
their affidavits out of fear of losing their jobs. The NLRC and the CA anchored their
conclusion on their finding that the affidavits of the employees were uniform and
pro forma.

We agree with the finding of the Labor Arbiter that no secret balloting to strike was
conducted by the respondent Union on November 10, 1997 at the parking lot in
front of the hospital, at the corner of Scout Magbanua Street and Panay Avenue,
Quezon City. This can be gleaned from the affidavit of Barbacena and the joint
affidavit of Tingzon and Barawid, respectively:

1. That I am working as an overseer of a parking lot owned by Mrs. Madelaine

Dionisio and located right in front of the Capitol Medical Center, specifically at the
corner of Scout Magbanua Street and Panay Avenue, Quezon City;

2. That on November 10, 1997, during my entire tour of duty from 6:00 a.m. to 6:00
p.m., no voting or election was conducted in the aforementioned parking space for
employees of the Capitol Medical Center and/or their guests, or by any other group
for that matter.[33]

1. That I, Simon J. Tingzon, am a security officer of Veterans Philippine Scout

Security Agency (hereinafter referred to as VPSSA), assigned, since July 1997 up to
the present, as Security Detachment Commander at Capitol Medical Center
(hereinafter referred to as CMC) located at Scout Magbanua corner Panay Avenue,
Quezon City;

2. That my (Tingzon) functions as such include over-all in charge of security of all

buildings and properties of CMC, and roving in the entire premises including the
parking lots of all the buildings of CMC;

3. That I, Reggie B. Barawid, am a security guard of VPSSA, assigned, since June 1997
up to the present, as security guard at CMC;

4. That my (Barawid) functions as such include access control of all persons coming
in and out of CMCs buildings and properties. I also sometimes guard the parking
areas of CMC;

5. That on November 10, 1997, both of us were on duty at CMC from 7:00 a.m. to
7:00 p.m., with me (Barawid) assigned at the main door of the CMCs Main Building
along Scout Magbanua St.;

6. That on said date, during our entire tour of duty, there was no voting or election
conducted in any of the four parking spaces for CMC personnel and guests.[34]

The allegations in the foregoing affidavits belie the claim of the respondents and the
finding of the NLRC that a secret balloting took place on November 10, 1997 in front
of the hospital at the corner of Scout Magbanua Street and Panay Avenue, Quezon
City. The respondents failed to prove the existence of a parking lot in front of the
hospital other than the parking lot across from it. Indeed, 17 of those who
purportedly voted in a secret voting executed their separate affidavits that no secret
balloting took place on November 10, 1997, and that even if they were not members
of the respondent Union, were asked to vote and to sign attendance papers. The
respondents failed to adduce substantial evidence that the said affiants were
coerced into executing the said affidavits. The bare fact that some portions of the
said affidavits are similarly worded does not constitute substantial evidence that the
petitioner forced, intimidated or coerced the affiants to execute the same.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decisions of the
Court of Appeals and NLRC are SET ASIDE AND REVERSED. The Decision of the
Labor Arbiter is REINSTATED. No costs.

SO ORDERED.
PHIMCO INDUSTRIES, INC., G.R. No. 170830
Petitioner,
Present:
- versus -
CARPIO MORALES, J., Chairperson
PHIMCO INDUSTRIES LABOR BRION,
ASSOCIATION (PILA), and BERSAMIN,
ERLINDA VAZQUEZ, RICARDO ABAD, and
SACRISTAN, LEONIDA CATALAN, VILLARAMA, JR., JJ.
MAXIMO PEDRO, NATHANIELA
DIMACULANGAN,* RODOLFO
MOJICO, ROMEO CARAMANZA, Promulgated:
REYNALDO GANITANO, ALBERTO
BASCONCILLO,** and RAMON August 11, 2010
FALCIS, in their capacity as officers
of PILA, and ANGELITA BALOSA,***
DANILO BANAAG, ABRAHAM
CADAY, ALFONSO CLAUDIO,
FRANCISCO DALISAY,****
ANGELITO DEJAN,***** PHILIP
GARCES, NICANOR ILAGAN,
FLORENCIO LIBONGCOGON,******
NEMESIO MAMONONG, TEOFILO
MANALILI, ALFREDO PEARSON,*******
MARIO PEREA,******** RENATO
RAMOS, MARIANO ROSALES,
PABLO SARMIENTO, RODOLFO
TOLENTINO, FELIPE VILLAREAL,
ARSENIO ZAMORA, DANILO
BALTAZAR, ROGER CABER,*********
REYNALDO CAMARIN, BERNARDO
CUADRA,********** ANGELITO DE
GUZMAN, GERARDO FELICIANO,***********
ALEX IBAEZ, BENJAMIN JUAN, SR.,
RAMON MACAALAY, GONZALO
MANALILI, RAUL MICIANO,
HILARIO PEA, TERESA
PERMOCILLO,************ ERNESTO RIO,
RODOLFO SANIDAD, RAFAEL
STA. ANA, JULIAN TUGUIN and AMELIA
ZAMORA, as members of PILA,
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION

BRION, J.:

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

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

FACTUAL BACKGROUND

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

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

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

When the last collective bargaining agreement was about to expire on

December 31, 1994, PHIMCO and PILA negotiated for its renewal. The
negotiation resulted in a deadlock on economic issues, mainly due to
disagreements on salary increases and benefits.

On March 9, 1995, PILA filed with the National Conciliation and

Mediation Board (NCMB) a Notice of Strike on the ground of the bargaining
deadlock. Seven (7) days later, or on March 16, 1995, the union conducted a
strike vote; a majority of the union members voted for a strike as its
response to the bargaining impasse. On March 17, 1995, PILA filed the
strike vote results with the NCMB. Thirty-five (35) days later, or on April
21, 1995, PILA staged a strike.

On May 3, 1995, PHIMCO filed with the NLRC a petition for

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

On June 23, 1995, PHIMCO sent a letter to thirty-six (36) union

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

On July 6, 1995, PILA filed a complaint for unfair labor practice and
illegal dismissal (illegal dismissal case) with the NLRC. The case was
docketed as NLRC NCR Case No. 00-07-04705-95, and raffled to Labor
Arbiter (LA) Pablo C. Espiritu, Jr.
 On July 7, 1995, then Acting Labor Secretary Jose S. Brillantes
assumed jurisdiction over the labor dispute, and ordered all the striking
employees (except those who were handed termination papers on June 26,
1995) to return to work within twenty-four (24) hours from receipt of the
order. The Secretary ordered PHIMCO to accept the striking employees,
under the same terms and conditions prevailing prior to the strike.[4] On the
same day, PILA ended its strike.

On August 28, 1995, PHIMCO filed a Petition to Declare the Strike

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

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

LA Mayor decided the case on February 4, 1998,[5] and found the

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

THE NLRC RULING

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

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

the illegal strike case.[7]

In a parallel development, LA Espiritu decided the unions illegal

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

Pending the resolution of PHIMCOs motion for reconsideration in the

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

On February 20, 2002, the NLRC rendered its Decision in the

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

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

the consolidated decision.

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

THE CA RULING

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

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

PHIMCO came to us through the present petition after the CA

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

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

THE CASE FOR THE RESPONDENTS

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

THE ISSUE

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

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

OUR RULING

We find the petition partly meritorious.

Requisites of a valid strike

A strike is the most powerful weapon of workers in their struggle with

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

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

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

These requirements are mandatory, and the unions failure to comply

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

Strike may be illegal for

commission of prohibited acts

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

Based on our examination of the evidence which the LA viewed

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

The Evidence

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

For the Company

1. Pictures taken during the strike, showing that the

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

For the Respondents

1. Affidavit of Leonida Catalan, stating that the PILA strike

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

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

We disagree with this finding as the purported peaceful moving

picket upon which the NLRC resolution was anchored was not an innocuous
picket, contrary to what the NLRC said it was; the picket, under the evidence
presented, did effectively obstruct the entry and exit points of the company
premises on various occasions.

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

employees as a result of an industrial or labor dispute.[40] The work stoppage
may be accompanied by picketing by the striking employees outside of the
company compound. While a strike focuses on stoppage of work, picketing
focuses on publicizing the labor dispute and its incidents to inform the
public of what is happening in the company struck against. A picket simply
means to march to and from the employers premises, usually accompanied
by the display of placards and other signs making known the facts involved
in a labor dispute.[41] It is a strike activity separate and different from the
actual stoppage of work.

While the right of employees to publicize their dispute falls within the
protection of freedom of expression[42] and the right to peaceably assemble
to air grievances,[43] these rights are by no means absolute. Protected
picketing does not extend to blocking ingress to and egress from the
company premises.[44] That the picket was moving, was peaceful and was
not attended by actual violence may not free it from taints of illegality if the
picket effectively blocked entry to and exit from the company premises.
 In this regard, PHIMCO employees Rodolfo Eva and Joaquin Aguilar,
and the companys Human Resources Manager Francis Ferdinand Cinco
testified during the compulsory arbitration hearings:

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

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

xxxx

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

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

7, 1995, we tried to enter the PHIMCO compound but we were not
allowed entry.

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

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

xxxx

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

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

xxxx

ARBITER MAYOR: Reform the question, and because of that moving

picket conducted by the strikers, no employees or vehicles can
come in or go out of the premises?

A: None, sir.[48]
 These accounts were confirmed by the admissions of respondent
PILA officers Maximo Pedro and Leonida Catalan that the strikers
prevented non-striking employees from entering the company
premises. According to these union officers:
ATTY. CHUA: Mr. witness, do you recall an incident when a group of
managers of PHIMCO, with several of the monthly paid
employees who tried to enter the PHIMCO compound during the
strike?

MR. PEDRO: Yes, sir.

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

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

xxxx

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

MR. PEDRO: Yes, sir.

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

MR. PEDRO: Yes, sir. [50]

xxxx

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

MS. CATALAN: No sir.

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

MS. CATALAN: Yes, sir.[51]

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

Significantly, the testimonies adduced were validated by the

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

The obstructive nature of the picket was aggravated by the placement

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

With a virtual human blockade and real physical obstructions

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

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

The peaceful moving picket that the NLRC noted, influenced

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

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

Intimidation

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

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

Maximo Pedro, a PILA officer, testified, on July 30, 1997, that a

group of PHIMCO managers led by Cinco, together with several monthly-
paid employees, tried to enter the company premises on May 27, 1995 with
police escort; even then, the picketers did not allow them to enter. [65]Leonida
Catalan, another union officer, testified that she and the other picketers did
not give way despite the instruction of Police Major de los Reyes to the
picketers to allow the group to enter the company premises.[66] (To be sure,
police intervention and participation are, as a rule, prohibited acts in a strike,
but we note this intervention solely as indicators of how far the union and its
members have gone to block ingress to and egress from the company
premises.)

Further, PHIMCO employee Rodolfo Eva testified that on May 22, 1995, a
company coaster or bus attempted to enter the PHIMCO compound but it
was refused entry by the moving picket.[67] Cinco, the company personnel
manager, also testified that on May 27, 1995, when the NLRC TRO was in
force, he and other employees tried to enter the PHIMCO compound, but
they were not allowed entry; on May 29, 1995, Cinco was with the PHIMCO
production manager in a pick-up and they tried to enter the company
compound but, again, they were not allowed by the strikers.[68] Another
employee, Joaquin Aguilar, when asked how the strikers blocked the ingress
of the company, replied that the strikers hold around, joining hands, moving
picket and, because of the moving picket, no employee or vehicle could
come in and go out of the premises.[69]

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

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

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

Despite all these clear pieces of evidence of illegal obstruction, the

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

Liabilities of union
officers and members

In the determination of the liabilities of the individual respondents, the

applicable provision is Article 264(a) of the Labor Code:
Art. 264. Prohibited activities. (a) x x x

xxxx

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

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

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

In all cases, the striker must be identified. But proof beyond

reasonable doubt is not required; substantial evidence, available under the
attendant circumstances, suffices to justify the imposition of the penalty of
dismissal on participating workers and union officers as above described.[73]

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

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

PHIMCO was able to individually identify the participating union

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

PHIMCO failed to observe due

process

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

process of the Labor Code when it dismissed the respondents.

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

We explained in Suico v. National Labor Relations

Commission,[80] that Article 277(b), in relation to Article 264(a) and (e) of
the Labor Code recognizes the right to due process of all workers, without
distinction as to the cause of their termination, even if the cause was their
supposed involvement in strike-related violence prohibited under Article
264(a) and (e) of the Labor Code.

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

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

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

We do not find this company procedure to be sufficient compliance

with the due process requirements that the law guards zealously. It does not
appear from the evidence that the union officers were specifically informed
of the charges against them and given the chance to explain and present their
side. Without the specifications they had to respond to, they were arbitrarily
separated from work in total disregard of their rights to due process and
security of tenure.

As to the union members, only thirty-six (36) of the thirty-seven (37)

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

Under the circumstances, where evidence sufficient to justify the

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

WHEREFORE, in light of all the foregoing, we

hereby REVERSE and SET ASIDE the decision dated February 10, 2004
and the resolution dated December 12, 2005 of the Court of Appeals in CA-
G.R. SP No. 70336, upholding the rulings of the National Labor Relations
Commission.

The Decision, dated February 4, 1998, of Labor Arbiter Jovencio Ll.

Mayor should prevail and is REINSTATED with the MODIFICATION that
Erlinda Vazquez, Ricardo Sacristan, Leonida Catalan, Maximo Pedro,
Nathaniela Dimaculangan, Rodolfo Mojico, Romeo Caramanza, Reynaldo
Ganitano, Alberto Basconcillo, Ramon Falcis, Angelita Balosa, Danilo
Banaag, Abraham Caday, Alfonso Claudio, Francisco Dalisay, Angelito
Dejan, Philip Garces, Nicanor Ilagan, Florencio Libongcogon, Nemesio
Mamonong, Teofilo Manalili, Alfredo Pearson, Mario Perea, Renato Ramos,
Mariano Rosales, Pablo Sarmiento, Rodolfo Tolentino, Felipe Villareal,
Arsenio Zamora, Danilo Baltazar, Roger Caber, Reynaldo Camarin,
Bernardo Cuadra, Angelito de Guzman, Gerardo Feliciano, Alex Ibaez,
Benjamin Juan, Sr., Ramon Macaalay, Gonzalo Manalili, Raul Miciano,
Hilario Pea, Teresa Permocillo, Ernesto Rio, Rodolfo Sanidad, Rafael Sta.
Ana, Julian Tuguin, and Amelia Zamora are each awarded nominal damages
in the amount of P30,000.00. No pronouncement as to costs.

SANTA ROSA COCA-COLA G.R. Nos. 164302-03

PLANT EMPLOYEES
UNION, Donrico V. Sebastian,
Eulogio G. Batino, Samuel A. Present:
Atanque, Manolo C.
Zabaljauregui, Dionisio Tenorio,
Edwin P. Rellores, Luis B. YNARES-SANTIAGO, J.
Natividad, Myrna Petingco, Chairperson,
Feliciano Tolentino, Rodolfo A. AUSTRIA-MARTINEZ,
Amante, Jr., Cipriano C. Bello, CALLEJO, SR., and
Ronaldo T. Espino, Efren Galan, CHICO-NAZARIO, JJ.
and Jun Carmelito Santos,
Petitioners,
Promulgated:
- versus -
January 24, 2007

COCA-COLA BOTTLERS
PHILS., INC.,
Respondent.
x-----------------------------------------------------------------------------------------x

DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision[1] of the Court of Appeals
(CA) in CA-G.R. SP Nos. 74174 and 74860, which affirmed the ruling of the National
Labor Relations Commission (NLRC) in NLRC CA No. 030424-02, and the Labor
Arbiter in NLRC Case No. RAB-IV-10-11579-99-L.

The Antecedents

The Sta. Rosa Coca-Cola Plant Employees Union (Union) is the sole and exclusive
bargaining representative of the regular daily paid workers and the monthly paid
non-commission-earning employees of the Coca-Cola Bottlers Philippines, Inc.
(Company) in its Sta. Rosa, Laguna plant. The individual petitioners are Union
officers, directors, and shop stewards.

The Union and the Company had entered into a three-year Collective Bargaining
Agreement (CBA) effective July 1, 1996 to expire on June 30, 1999. Upon the
expiration of the CBA, the Union informed the Company of its desire to renegotiate
its terms. The CBA meetings commenced on July 26, 1999, where the Union and the
Company discussed the ground rules of the negotiations. The Union insisted that
representatives from the Alyansa ng mga Unyon sa Coca-Cola be allowed to sit down
as observers in the CBA meetings. The Union officers and members also insisted that
their wages be based on their work shift rates. For its part, the Company was of the
view that the members of the Alyansa were not members of the bargaining unit. The
Alyansa was a mere aggregate of employees of the Company in its various plants;
and is not a registered labor organization. Thus, an impasse ensued.[2]
On August 30, 1999, the Union, its officers, directors and six shop stewards filed a
Notice of Strike with the National Conciliation and Mediation Board (NCMB)
Regional Office in Southern Tagalog, Imus, Cavite. The petitioners relied on two
grounds: (a) deadlock on CBA ground rules; and (b) unfair labor practice arising
from the companys refusal to bargain. The case was docketed as NCMB-RBIV-NS-08-
046-99.[3]

The Company filed a Motion to Dismiss[4] alleging that the reasons cited by the
Union were not valid grounds for a strike. The Union then filed an Amended Notice
of Strike on September 17, 1999 on the following grounds: (a) unfair labor practice
for the companys refusal to bargain in good faith; and (b) interference with the
exercise of their right to self-organization.[5]

Meanwhile, on September 15, 1999, the Union decided to participate in a mass

action organized by the Alyansa ng mga Unyon sa Coca-Cola in front of the
Companys premises set for September 21, 1999. 106 Union members, officers and
members of the Board of Directors, and shop stewards, individually filed
applications for leave of absence for September 21, 1999. Certain that its operations
in the plant would come to a complete stop since there were no sufficient trained
contractual employees who would take over, the Company disapproved all leave
applications and notified the applicants accordingly.[6] A day before the mass
action, some Union members wore gears, red tag cloths stating YES KAMI SA STRIKE
as headgears and on the different parts of their uniform, shoulders and chests.
The Office of the Mayor issued a permit to the Union, allowing it to conduct a mass
protest action within the perimeter of the Coca-Cola plant on September 21, 1999
from 9:00 a.m. to 12:00 noon.[7] Thus, the Union officers and members held a picket
along the front perimeter of the plant on September 21, 1999. All of the 14
personnel of the Engineering Section of the Company did not report for work, and
71 production personnel were also absent. As a result, only one of the three bottling
lines operated during the day shift. All the three lines were operated during the
night shift with cumulative downtime of five (5) hours due to lack of manning,
complement and skills requirement. The volume of production for the day was short
by 60,000 physical case[s] versus budget.[8]

On October 13, 1999, the Company filed a Petition to Declare Strike Illegal[9]
alleging, inter alia, the following: there was a deadlock in the CBA negotiations
between the Union and Company, as a result of which a Notice of Strike was filed by
the Union; pending resolution of the Notice of Strike, the Union members filed
applications for leave on September 21, 1999 which were disapproved because
operations in the plant may be disrupted; on September 20, 1999, one day prior to
the mass leave, the Union staged a protest action by wearing red arm bands
denouncing the alleged anti-labor practices of the company; on September 21, 1999,
without observing the requirements mandated by law, the Union picketed the
premises of the Company in clear violation of Article 262 of the Labor Code; because
of the slowdown in the work, the Company suffered losses amounting to
P2,733,366.29; the mass/protest action conducted on September 21, 1999 was
clearly a strike; since the Union did not observe the requirements mandated by law,
i.e., strike vote, cooling-off period and reporting requirements, the strike was
therefore illegal; the Union also violated the provision of the CBA on the grievance
machinery; there being a direct violation of the CBA, the Unions action constituted
an unfair labor practice; and the officers who knowingly participated in the
commission of illegal acts during the strike should be declared to have lost their
employment status. The Company prayed that judgment be rendered as follows:
1. Declaring the strike illegal;

2. Declaring the officers of respondent Union or the individual respondents to have

lost their employment status;

3. Declaring respondent Union, its officers and members guilty of unfair labor
practice for violation of the CBA; and

4. Ordering the respondents to pay petitioner the following claims for damages:

a. Actual Damages in the amount of P 4,733,366.29

b. Moral Damages in the amount of Five (5) Million Pesos; and

c. Exemplary Damages in the amount of Two (2) Million Pesos.[10]

The Union filed an Answer with a Motion to Dismiss and/or to Suspend

Proceedings[11] alleging therein that the mass action conducted by its officers and
members on September 21, 1999 was not a strike but just a valid exercise of their
right to picket, which is part of the right of free expression as guaranteed by the
Constitution; several thousands of workers nationwide had launched similar mass
protest actions to demonstrate their continuing indignation over the ill effects of
martial rule in the Philippines.[12] It pointed out that even the officers and
members of the Alyansa ng mga Unyon sa Coca-Cola had similarly organized mass
protest actions. The Union insisted that officers and members filed their
applications for leave for September 21, 1999 knowing fully well that there were no
bottling operations scheduled on September 21 and 22, 1999; they even secured a
Mayors permit for the purpose. The workers, including the petitioners, merely
marched to and fro at the side of the highway near one of the gates of the Sta. Rosa
Plant, the loading bay for public vehicles. After 3 hours, everyone returned to work
according to their respective shifting schedules. The Union averred that the petition
filed by the Company was designed to harass and its officers and members in order
to weaken the Unions position in the on-going collective bargaining negotiations.

In a letter to the Union President dated October 26, 1999, the NCMB stated that
based on their allegations, the real issue between the parties was not the proper
subject of a strike, and should be the subject of peaceful and reasonable dialogue.
The NCMB recommended that the Notice of Strike of the Union be converted into a
preventive mediation case. After conciliation proceedings failed, the parties were
required to submit their respective position papers.[13] In the meantime, the
officers and directors of the Union remained absent without the requisite approved
leaves. On October 11, 1999, they were required to submit their explanations why
they should not be declared AWOL.[14]

On November 26, 1999, the Labor Arbiter rendered a Decision[15] granting the
petition of the Company. He declared that the September 21, 1999 mass leave was
actually a strike under Article 212 of the Labor Code for the following reasons:
based on the reports submitted by the Production and Engineering Department of
the Company, there was a temporary work stoppage/slowdown in the
company;[16] out of the usual three (3) lines for production for the day shift, only
one line operated by probationary employees was functional and there was a
cumulative downtime of five (5) hours attributed to the lack of manning
complement and skills requirement. The Labor Arbiter further declared:

x x x [T]he September 21, 1999 activity of the union and the individual respondents
herein fell within the foregoing definition of a strike. Firstly, the union itself had
admitted the fact that on the date in question, respondent officers, together with
their union members and supporters from the Alyansa ng mga Unyon sa Coca-Cola,
did not report for their usual work. Instead, they all assembled in front of the Sta.
Rosa Plant and picketed the premises. Very clearly, there was a concerted action
here on the part of the respondents brought about a temporary stoppage of work at
two out of three bottling lines at the Sta. Rosa Plant. According to Edwin Jaranilla,
the Engineering Superintendent (Annex H, petition), all of his departments 14
engineering personnel did not report for work on September 21, 1999, and that only
Line 2 operated on the day shift. Honorio Tacla, the Production Superintendent,
testified (Annex H-1), that 71 production personnel were likewise absent from their
respective work stations on September 21, 1999, and that only Line 2 operated on
the day shift. Similarly, Federico Borja, Physical Distribution Superintendent, stated
under oath (Annex H-2) that 12 personnel from his department did not report for
work on September 21, 1999, and that no forklift servicing was done on Lines 1 and
3. From the foregoing testimonies, it is evident that respondents concerted activity
resulted in a temporary stoppage of work at the Sta. Rosa Plant of the company.
Thirdly, such concerted activity by respondents was by reason of a labor dispute.
Earlier, the union had filed a Notice of Strike against the company on account of a
disagreement with the latter regarding CBA ground rules, i.e., the demand of the
Union for Alyansa members from other plants to attend as observers during the CBA
negotiation, and for the members of the negotiating panel to be paid their wages
based on their work shift rate. Moreover, on September 20, 1999, one day before
respondents mass leave from work and concerted action, they had worn red tag
cloth materials on different parts of their uniform which contained the words, YES
kami sa strike; Protesta kami; Sahod, karapatan, manggagawa ipaglaban; and Union
busting itigil. (Annexes G, G-1, G-2 & G-3). These indicated that the concerted action
taken by respondents against CCBPI was a result of or on account of a labor
dispute.[17]

According to the Labor Arbiter, the strike conducted by the Union was illegal since
there was no showing that the Union conducted a strike vote, observed the
prescribed cooling-off period, much less, submitted a strike vote to the DOLE within
the required time. Consequently, for knowingly participating in the illegal strike, the
individual petitioners were considered to have lost their employment status.[18]

The Union appealed the decision to the NLRC. On July 31, 2002, the NLRC affirmed
the decision of the Labor Arbiter with the modification that Union Treasurer
Charlita M. Abrigo, who was on bereavement leave at the time, should be excluded
from the list of those who participated in the illegal strike. She was thus ordered
reinstated to her former position with full backwages and benefits.[19]

The Union and its officers, directors and the shop stewards, filed a petition for
certiorari in the CA. The case was docketed as CA-G.R. SP No. 74174. Another
petition was filed by Ricky G. Ganarial and Almira Romo, docketed as CA-G.R. SP No.
74860. The two cases were consolidated in the 6th Division of the CA.

Petitioners alleged the following in their respective petitions:

I
THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION FOR HAVING DECLARED PETITIONERS TO HAVE LOST THEIR
EMPLOYMENT WHEN FACTS WOULD SHOW PETITIONERS WERE NOT AFFORDED
DUE PROCESS

II
THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN DECLARING THE PEACEFUL PICKETING CONDUCTED BY THE
UNION AS ILLEGAL STRIKE DESPITE ABSENCE OF SUBSTANTIAL EVIDENCE ON
THE INTENT TO CREATE TEMPORARY WORK STOPPAGE
III
THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN DECLARING THAT PETITIONERS HAVE LOST THEIR
EMPLOYMENT FOR KNOWINGLY PARTICIPATING IN AN ILLEGAL STRIKE DESPITE
THE FACT THAT PETITIONERS ARE NOT ELECTED OFFICERS OF THE UNION AND
ARE MERE SHOP STEWARDS AND DESPITE THE FACT THAT THERE WAS NO
PROOF THAT THEY COMMITTED ILLEGAL ACTS.[20]

The petitioners, likewise, raised the following, to wit:

WHETHER OR NOT PUBLIC RESPONDENT NLRC HAS GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO EXCESS OR LACK OF JURISDICTION IN AFFIRMING
THE DECISION OF THE LABOR ARBITER A QUO WHO COMMITTED SERIOUS
ERRORS IN HIS FINDINGS OF FACTS WHEN HE DECLARED THAT THE STRIKE
CONDUCTED BY THE RESPONDENTS ON SEPTEMBER 21, 1999 IS ILLEGAL.

WHETHER OR NOT PUBLIC RESPONDENT NLRC HAS GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO EXCESS OR LACK OF JURISDICTION IN AFFIRMING
THE DECISION OF THE LABOR ARBITER A QUO WHO COMMITTED SERIOUS
ERRORS IN HIS FINDINGS OF FACTS WHEN HE DECLARED THAT INDIVIDUAL
RESPONDENTS (NOW PETITIONERS), INCLUDING SIX (6) UNION SHOP STEWARDS,
ARE CONSIDERED TO HAVE LOST THEIR EMPLOYMENT STATUS (EXCEPT
CHARLITA ABRIGO) FOR KNOWINGLY PARTICIPATING IN SAID ILLEGAL
STRIKE.[21]

On September 10, 2003, the CA rendered judgment dismissing the petition for lack
of merit. It also declared that petitioners, in CA-G.R. SP No. 74860, were guilty of
forum shopping.

Petitioners filed a motion for reconsideration which the appellate court denied;
hence, the instant petition was filed based on the following grounds:
(1) THE HONORABLE COURT OF APPEALS HAS GRAVELY ABUSED ITS DISCRETION
IN DISMISSING THE PETITION BEFORE IT FOR LACK OF MERIT WHEN IT IS CLEAR
FROM THE EVIDENCE ON RECORD THAT THE SUBJECT MASS ACTION WAS A
VALID EXERCISE OF THE WORKERS CONSTITUTIONAL RIGHT TO PICKET WHICH
IS PART OF THE RIGHT TO FREE EXPRESSION.

(2) THE NLRC GRAVELY ABUSED ITS DISCRETION IN AFFIRMING THE DECISION
OF THE LABOR ARBITER A QUO WHEN IT CONCLUDED THAT AS A CONSEQUENCE
OF THE ILLEGALITY OF THE STRIKE, THE DISMISSAL OF THE OFFICERS OF THE
UNION IS JUSTIFIED AND VALID, IS NOT IN ACCORD WITH FACTS AND EVIDENCE
ON RECORD.

(3) EVEN ASSUMING ARGUENDO THAT THE PROTEST MASS ACTION STAGED BY
PETITIONERS ON SEPTEMBER 21, 1999 CONSTITUTES A STRIKE, THE NLRC
SERIOUSLY ERRED WHEN IT AFFIRMED THE LABOR ARBITERS DECISION
DECLARING THE FORFEITURE OF EMPLOYMENT STATUS OF UNION OFFICERS
AND SHOP STEWARDS (WHO HAVE NOT COMMITTED ANY ILLEGAL ACT DURING
THE CONDUCT OF THE SAID MASS ACTION) FOR HAVING KNOWINGLY
PARTICIPATED IN AN ILLEGAL STRIKE.[22]

The threshold issues in these cases are: (a) whether the September 21, 1999 mass
action staged by the Union was a strike; (b) if, in the affirmative, whether it was
legal; and (c) whether the individual officers and shop stewards of petitioner Union
should be dismissed from their employment.

On the first and second issues, petitioners maintain that the September 21, 1999
mass protest action was not a strike but a picket, a valid exercise of their
constitutional right to free expression and assembly.[23] It was a peaceful mass
protest action to dramatize their legitimate grievances against respondent. They did
not intend to have a work stoppage since they knew beforehand that no bottling
operations were scheduled on September 21, 1999 pursuant to the Logistics
Planning Services Mega Manila Production Plan dated September 15, 1999.[24]
Thus, they applied for leaves of absences for September 21, 1999 which, however,
were not approved. They also obtained a mayors permit to hold the picket near the
highway, and they faithfully complied with the conditions set therein. The
protesting workers were merely marching to and fro at the side of the highway or
the loading bay near one of the gates of the Company plant, certainly not blocking in
any way the ingress or egress from the Companys premises. Their request to hold
their activity was for four (4) hours, which was reduced to three (3) hours.
Thereafter, they all went back to work. The bottling operations of the Company was
not stopped, even temporarily. Since petitioner Union did not intend to go on strike,
there was no need to observe the mandatory legal requirements for the conduct of a
strike.

Petitioners also point out that members belonging to the IBM-KMU at the San
Fernando Coca-Cola bottling plant staged simultaneous walkout from their work
assignments for two consecutive days, on October 7 and 8, 1999. However, the
Secretary of Labor and Employment (SOLE) declared that the walkout was
considered a mass action, not a strike, and the officers of the IBM-KMU were only
meted a three-day suspension. Respondent accepted the decision of the SOLE and
no longer appealed the decision. Petitioners insist that this should, likewise, apply in
the resolution of the issue of whether petitioners staged a strike or not, and whether
the penalty of dismissal from the employment with the respondent is just and
equitable.
Petitioners also insist that they were denied the right to due process because the
decision of the Labor Arbiter was implemented even while their appeal was pending
in the NLRC. The decision of the Labor Arbiter against them was to become final and
executory only until after the NLRC shall have resolved their appeal with finality.

On the third issue, petitioners aver that even assuming that they had indeed staged a
strike, the penalty of dismissal is too harsh. They insist that they acted in good faith.
Besides, under Article 264 of the Labor Code, the dismissal of the Union officers who
participated in an illegal strike is discretionary on the employer. Moreover, six (6) of
the petitioners were shop stewards who were mere members of the Union and not
officers thereof.

In its comment on the petition, respondent avers that the issues raised by
petitioners are factual; hence, inappropriate in a petition for review on certiorari.
Besides, the findings of the Labor Arbiter had been affirmed by the NLRC and the CA,
and are, thus, conclusive on this Court.

Respondent further avers that the law offers no discretion as to the proper penalty
that should be imposed against a Union official participating in an illegal strike.
Contrary to the contention of petitioners, shop stewards are also Union officers. To
support its claim, respondent cited Samahan ng Manggagawa sa Moldex Products,
Inc. v. National Labor Relations Commission,[25] International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Hoffa;[26] and
Coleman v. Brotherhood of Railway and Steamship Clerks, etc.[27]
The petition is denied for lack of merit.

The ruling of the CA that petitioners staged a strike on September 21, 1999, and not
merely a picket is correct.

It bears stressing that this is a finding made by the Labor Arbiter which was
affirmed by the NLRC[28] and the CA.[29] The settled rule is that the factual findings
and conclusions of tribunals, as long as they are based on substantial evidence, are
conclusive on this Court.[30] The raison detre is that quasi-judicial agencies, like the
Labor Arbiter and the NLRC, have acquired a unique expertise since their
jurisdictions are confined to specific matters. Besides, under Rule 45 of the Rules of
Court, the factual issues raised by the petitioner are inappropriate in a petition for
review on certiorari. Whether petitioners staged a strike or not is a factual issue.

Petitioners failed to establish that the NLRC committed grave abuse of its discretion
amounting to excess or lack of jurisdiction in affirming the findings of the Labor
Arbiter that petitioners had indeed staged a strike.
Article 212(o) of the Labor Code defines strike as a temporary stoppage of work by
the concerted action of employees as a result of an industrial or labor dispute. In
Bangalisan v. Court of Appeals,[31] the Court ruled that the fact that the
conventional term strike was not used by the striking employees to describe their
common course of action is inconsequential, since the substance of the situation,
and not its appearance, will be deemed to be controlling.[32] The term strike
encompasses not only concerted work stoppages, but also slowdowns, mass leaves,
sit-downs, attempts to damage, destroy or sabotage plant equipment and facilities,
and similar activities.[33]

Picketing involves merely the marching to and fro at the premises of the employer,
usually accompanied by the display of placards and other signs making known the
facts involved in a labor dispute.[34] As applied to a labor dispute, to picket means
the stationing of one or more persons to observe and attempt to observe. The
purpose of pickets is said to be a means of peaceable persuasion.[35]

A labor dispute includes any controversy or matter concerning terms or conditions

of employment or the association or representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms and conditions of employment,
regardless of whether the disputants stand in the proximate relation of employer
and employee.[36]

That there was a labor dispute between the parties, in this case, is not an issue.
Petitioners notified the respondent of their intention to stage a strike, and not
merely to picket. Petitioners insistence to stage a strike is
evident in the fact that an amended notice to strike was filed even as respondent
moved to dismiss the first notice. The basic elements of a strike are present in this
case: 106 members of petitioner Union, whose respective applications for leave of
absence on September 21, 1999 were disapproved, opted not to report for work on
said date, and gathered in front of the company premises to hold a mass protest
action. Petitioners deliberately absented themselves and instead wore red ribbons,
carried placards with slogans such as: YES KAMI SA STRIKE, PROTESTA KAMI,
SAHOD, KARAPATAN NG MANGGAGAWA IPAGLABAN, CBA-WAG BABOYIN, STOP
UNION BUSTING. They marched to and fro in front of the companys premises during
working hours. Thus, petitioners engaged in a concerted activity which already
affected the companys operations. The mass concerted activity constituted a strike.

The bare fact that petitioners were given a Mayors permit is not conclusive evidence
that their action/activity did not amount to a strike. The Mayors description of what
activities petitioners were allowed to conduct is inconsequential. To repeat, what is
definitive of whether the action staged by petitioners is a strike and not merely a
picket is the totality of the circumstances surrounding the situation.

A strike is the most powerful of the economic weapons of workers which they
unsheathe to force management to agree to an equitable sharing of the joint product
of labor and capital. It is a weapon that can either breathe life to or destroy the
Union and its members in their struggle with management for a more equitable due
to their labors.[37] The decision to declare a strike must therefore rest on a rational
basis, free from emotionalism, envisaged by the tempers and tantrums of a few hot
heads, and finally focused on the legitimate interests of the Union which should not,
however, be antithetical to the public welfare, and, to be valid, a strike must be
pursued within legal bounds. The right to strike as a means of attainment of social
justice is never meant to oppress or destroy the employer.[38]

Since strikes cause disparity effects not only on the relationship between labor and
management but also on the general peace and progress of society, the law has
provided limitations on the right to strike. For a strike to be valid, the following
procedural requisites provided by Art. 263 of the Labor Code must be observed: (a)
a notice of strike filed with the DOLE 30 days before the intended date thereof, or 15
days in case of unfair labor practice; (b) strike vote approved by a majority of the
total union membership in the bargaining unit concerned obtained by secret ballot
in a meeting called for that purpose, (c) notice given to the DOLE of the results of the
voting at least seven days before the intended strike. These requirements are
mandatory and the failure of a union to comply therewith renders the strike
illegal.[39] It is clear in this case that petitioners totally ignored the statutory
requirements and embarked on their illegal strike. We quote, with approval, the
ruling of the CA which affirmed the decisions of the NLRC and of the Labor Arbiter:
Since it becomes undisputed that the mass action was indeed a strike, the next issue
is to determine whether the same was legal or not. Records reveal that the said
strike did not comply with the requirements of Article 263 (F) in relation to Article
264 of the Labor Code, which specifically provides, thus:

ART. 263. STRIKES, PICKETING, AND LOCKOUTS

xxx xxx xxx xxx

(f) A decision to declare a strike must be approved by a majority of the total union
membership in the bargaining unit concerned, obtained by secret ballot in meetings
or referenda called for that purpose. A decision to declare a lockout must be
approved by a majority of the board of directors of the corporation or association or
of the partners in a partnership, obtained by secret ballot in a meeting called for that
purpose. The decision shall be valid for the duration of the dispute based on
substantially the same grounds considered when the strike or lockout vote was
taken. The Ministry may at its own initiative or upon the request of any affected
party, supervise the conduct of the secret balloting. In every case, the union or the
employer shall furnish the Ministry the results of the voting at least seven days
before the intended strike or lockout, subject to the cooling-off period herein
provided.

ART. 264. PROHIBITED ACTIVITIES

(a) No labor organization or employer shall declare a strike or lockout without first
having bargained collectively in accordance with Title VII of this Book or without
first having filed the notice required in the preceding article or without the
necessary strike or lockout vote first having been obtained and reported to the
Ministry.

No strike or lockout shall be declared after assumption of jurisdiction by the

President or the Minister or after certification or submission of the dispute to
compulsory or voluntary arbitration or during the pendency of cases involving the
same grounds for the strike or lockout.

Any worker whose employment has been terminated as a consequence or an

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

xxx xxx xxx xxx

Applying the aforecited mandatory requirements to the case at bench, the Labor
Arbiter found, thus:

In the present case, there is no evidence on record to show that respondents had
complied with the above mandatory requirements of law for a valid strike.
Particularly, there is no showing that respondents had observed the prescribed
cooling-off period, conducted a strike vote, much less submitted a strike vote report
to the Department of Labor within the required time. This being the case,
respondents strike on September 21, 1999 is illegal. In the recent case of CCBPI
Postmix Workers Union vs. NLRC, 2999 (sic) SCRA 410, the Supreme Court had said:
It bears stressing that the strike requirements under Article 264 and 265 of the
Labor Code are mandatory requisites, without which, the strike will be considered
illegal. The evidence (sic) intention of the law in requiring the strike notice and
strike-vote report as mandatory requirements is to reasonably regulate the right to
strike which is essential to the attainment of legitimate policy objectives embodied
in the law. Verily, substantial compliance with a mandatory provision will not
suffice. Strict adherence to the mandate of the law is required.

Aside from the above infirmity, the strike staged by respondents was, further, in
violation of the CBA which stipulated under Section 1, Article VI, thereof that,

SECTION 1. The UNION agrees that there shall be no strike, walkout, stoppage or
slowdown of work, boycott, secondary boycott, refusal to handle any merchandise,
picketing, sitdown strikes of any kind, sympathetic or general strike, or any other
interference with any of the operations of the COMPANY during the term of this
Agreement, so long as the grievance procedure for which provision is made herein is
followed by the COMPANY.

Here, it is not disputed that respondents had not referred their issues to the
grievance machinery as a prior step. Instead, they chose to go on strike right away,
thereby bypassing the required grievance procedure dictated by the CBA.[40]

On the second and third issues, the ruling of the CA affirming the decisions of the
NLRC and the Labor Arbiter ordering the dismissal of the petitioners-officers,
directors and shop stewards of petitioner Union is correct.

It bears stressing, however, that the law makes a distinction between union
members and union officers. A worker merely participating in an illegal strike may
not be terminated from employment. It is only when he commits illegal acts during a
strike that he may be declared to have lost employment status.[41] For knowingly
participating in an illegal strike or participates in the commission of illegal acts
during a strike, the law provides that a union officer may be terminated from
employment.[42] The law grants the employer the option of declaring a union
officer who participated in an illegal strike as having lost his employment. It
possesses the right and prerogative to terminate the union officers from service.[43]

We quote, with approval, the following ruling of the Court of Appeals:

As to the imposition of the penalty provided for should an illegal strike be declared
as such, We find no legal or factual reason to digress from the following disquisition
of the Labor Arbiter, to wit:

No doubt, the strike conducted by respondents on September 21, 1999 is illegal.

Under Article 264(a) of the Labor Code, it is stated that, Any union officer who
knowingly participates in the commission of illegal acts during a strike may be
declared to have lost his employment status. xxx. In the present case, CCBPI had
already promptly notified respondents and their members of the disapproval of
their leave. In fact, in the company notice (of the disapproval of their leave), CCBPI
emphasized that operations will come to a complete stop on September 21, 1999 if
all the applications are approved. They were further informed that, there are no
sufficiently trained contractual employees who can take over as replacements on
that day (Annexes C, C-1 to C-18). In other words, respondents had known
beforehand that their planned mass leave would definitely result in a stoppage of
the operations of the company for September 21, 1999. Still, respondents knowingly
and deliberately proceeded with their mass action, unmindful of the ill effects
thereof on the business operations of the company. In the case of Association of
Independent Unions in the Philippines v. NLRC, 305 SCRA 219, the Supreme Court
had ruled that,
Union officers are duty-bound to guide their members to respect the law. If instead
of doing so, the officers urge the members to violate the law and defy the duly
constituted authorities, their dismissal from the service is just penalty or sanction
for their unlawful acts. The officers responsibility is greater than that of the
members.

Here, the law required respondents to follow a set of mandatory procedures before
they could go on with their strike. But obviously, rather than call on their members
to comply therewith, respondents were the first ones to violate the same.[44]

Petitioners cannot find solace in the Order of the Secretary of Labor and
Employment (SOLE) in OS-A-J-0033-99, NCMB-RB 111-NS-10-44-99 and 11-51-99
involving the labor dispute between the Company and the Union therein (the Ilaw at
Buklod ng Manggagawa Local No. 1, representing the daily paid rank and file
members of the respondent, as well as the plant-based route helpers and drivers at
its San Fernando Plant). In said case, the SOLE found that the simultaneous walkout
staged on October 7 and 8, 1999 was indeed a mass action, initiated by the Union
leaders. The acts of the Union leaders were, however, found to be illegal which
warranted their dismissal, were it not for the presence of mitigating factors,

i.e., the walkout was staged in support of their leaders in the course of the CBA
negotiation which was pending for more than nine (9) months; the Plant was not
fully disrupted as the Company was able to operate despite the severe action of the
Union members, with the employment of casual and contractual workers; the Union
had complied with the requirements of a strike and refrained from staging an actual
strike.[45]

Neither can the petitioners find refuge in the rulings of this Court in Panay Electric
Company v. NLRC[46] or in Lapanday Workers Union v. NLRC.[47] In the Panay
case, the Court meted the suspension of the union officers, instead of terminating
their employment status since the NLRC found no sufficient proof of bad faith on the
part of the union officers who took part in the strike to protest the dismissal of their
fellow worker, Enrique Huyan which was found to be illegal. In Lapanday, the Court
actually affirmed the dismissal of the union officers who could not claim good faith
to exculpate themselves. The officers, in fact, admitted knowledge of the law on
strike, including its procedure in conducting the same. The Court held that the
officers cannot violate the law which was designed to promote their interests.

Finally, the contention of petitioners Elenette Moises, Almira Romo, Louie Labayani,
Ricky Ganarial, Efren Galan and Jun Carmelito Santos who were appointed as shop
stewards of the Union that they were mere members and not the officers of
petitioner Union is barren of merit.
We agree with the observation of respondent that under Section 501(a) and (b) of
the Landrum Griffin Act of 1959,[48] shop stewards are officers of the Union:
Sec. 501 (a) The officers, agents, shop stewards, and other representatives of a labor
organization occupy positions of trust in relation to such organization and its
members as a group. It is, therefore, the duty of each such person, taking into
account the special problems and functions of a labor organization, to hold its
money and property solely for the benefit of the organization and its members and
to manage, invest, and expend the same in accordance with its constitution and
bylaws and any resolutions of the governing bodies adopted thereunder, to refrain
from dealing with such organization as an adverse party in any matter connected
with his duties and from holding or acquiring any pecuniary or personal interest
which conflicts with the interest of such organization, and to account to the
organization for any profit received by him in whatever capacity in connection with
transactions conducted by him or under his direction on behalf of the organization.
A general exculpatory resolution of a governing body purporting to relieve any such
person of liability for breach of the duties declared by this section shall be void as
against public policy.

(b) When any officer, agent, shop steward, or representative of any labor
organization is alleged to have violated the duties declared in subsection (a) of this
section and the labor organization or its governing board or officers refuse or fail to
sue or recover damages or secure an accounting or other appropriate relief within a
reasonable time after being requested to do so by any member of the labor
organization, such member may sue such officer, agent, shop steward, or
representative in any district court of the United States or in any State court of
competent jurisdiction to recover damages or secure an accounting or other
appropriate relief for the benefit of the labor organization.[49]

Under said Act, Section 3(q) thereof provides, as follows:

(q) Officer, agent, shop steward, or other representative, when used with respect to
a labor organization, includes elected officials and key administrative personnel,
whether elected or appointed (such as business agents, heads of departments or
major units, and organizers who exercise substantial independent authority), but
does not include salaried non-supervisory professional staff, stenographic, and
service personnel.[50]

Admittedly, there is no similar provision in the Labor Code of the Philippines;

nonetheless, petitioners who are shop stewards are considered union officers.

Officers normally mean those who hold defined offices. An officer is any person
occupying a position identified as an office. An office may be provided in the
constitution of a labor union or by the union itself in its CBA with the employer. An
office is a word of familiar usage and should be construed according to the sense of
the thing.[51]

Irrefragably, under its Constitution and By-Laws, petitioner Union has principal
officers and subordinate officers, who are either elected by its members, or
appointed by its president, including the standing committees each to be headed by
a member of the Board of Directors. Thus, under Section 1, Article VI of petitioner
Unions Constitution and By-Laws, the principal officers and other officers, as well as
their functions/duties and terms of office, are as follows:

ARTICLE VI
PRINCIPAL OFFICERS

SECTION 1. The governing body of the UNION shall be the following officers who
shall be elected through secret ballot by the general membership:

President Auditor
Vice-President two (2) Public Relations Officer
Secretary Sergeant-at-Arms
Treasurer Board of Directors nine (9)

SECTION 2. The above officers shall administer Unions affairs, formulate policies
and implement programs to effectively carry out the objectives of the UNION and
the Labor Code of the Philippines and manage all the monies and property of the
UNION.

SECTION 3. The officers of the UNION and the members of the Board of Directors
shall hold office for a period of five (5) years from the date of their election until
their successors shall have been duly elected and qualified; provided that they
remain members of the UNION in good standing.[52]

Section 6, Article II of the CBA of petitioner Union and respondent defines the
position of shop steward, thus:

SECTION 6. Shop Stewards. The UNION shall certify a total of eight (8) shop
stewards and shall inform management of the distribution of these stewards among
the departments concerned.

Shop Stewards, union officers and members or employees shall not lose pay for
attending Union-Management Labor dialogues, investigations and grievance
meetings with management.[53]

Section 6, Rule XIX of the Implementing Rules of Book V of the Labor Code mentions
the functions and duties of shop stewards, as follows:
Section 2. Procedures in handling grievances. In the absence of a specific provision
in the collective bargaining agreement prescribing for the procedures in handling
grievance, the following shall apply:

(a) An employee shall present this grievance or complaint orally or in writing to the
shop steward. Upon receipt thereof, the shop steward shall verify the facts and
determine whether or not the grievance is valid.

(b) If the grievance is valid, the shop steward shall immediately bring the complaint
to the employees immediate supervisor. The shop steward, the employee and his
immediate supervisor shall exert efforts to settle the grievance at their level.
(c) If no settlement is reached, the grievance shall be referred to the grievance
committee which shall have ten (10) days to decide the case.

Where the issue involves or arises from the interpretation or implementation of a

provision in the collective bargaining agreement, or from any order, memorandum,
circular or assignment issued by the appropriate authority in the establishment, and
such issue cannot be resolved at the level of the shop steward or the supervisor, the
same may be referred immediately to the grievance committee.

All grievance unsettled or unresolved within seven (7) calendar days from the date
of its submission to the last step in the grievance machinery shall automatically be
referred to a voluntary arbitrator chosen in accordance with the provisions of the
collective bargaining agreement, or in the absence of such provisions, by mutual
agreement of the parties.[54]

Thus, a shop steward is appointed by the Union in a shop, department, or plant

serves as representative of the Union, charged with negotiating and adjustment of
grievances of employees with the supervisor of the employer.[55] He is the
representative of the Union members in a building or other workplace. Blacks Law
Dictionary defines a shop steward as a union official who represents members in a
particular department. His duties include the conduct of initial negotiations for
settlement of grievances.[56] He

is to help other members when they have concerns with the employer or other
work-related issues. He is the first person that workers turn to for assistance or
information. If someone has a problem at work, the steward will help them sort it
out or, if necessary, help them file a complaint.[57] In the performance of his duties,
he has to take cognizance of and resolve, in the first instance, the grievances of the
members of the Union. He is empowered to decide for himself whether the
grievance or complaint of a member of the petitioner Union is valid, and if valid, to
resolve the same with the supervisor failing which, the matter would be elevated to
the Grievance Committee.
It is quite clear that the jurisdiction of shop stewards and the supervisors includes
the determination of the issues arising from the interpretation or even
implementation of a provision of the CBA, or from any order or memorandum,
circular or assignments issued by the appropriate authority in the establishment. In
fine, they are part and parcel of the continuous process of grievance resolution
designed to preserve and maintain peace among the employees and their employer.
They occupy positions of trust and laden with awesome responsibilities.

In this case, instead of playing the role of peacemakers and grievance solvers, the
petitioners-shop stewards participated in the strike. Thus, like the officers and
directors of petitioner Union who joined the strike, petitioners-shop stewards also
deserve the penalty of dismissal from their employment.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The
Decision of the Court of Appeals is AFFIRMED. No costs.

SO ORDERED.
STEEL CORPORATION G.R. Nos. 169829-30
OF THE PHILIPPINES,
Petitioner,
Present:

- versus - PUNO, C.J., Chairperson,

CARPIO,*
CORONA,
AZCUNA, and
LEONARDO-DE CASTRO, JJ.
SCP EMPLOYEES UNION-
NATIONAL FEDERATION
OF LABOR UNIONS,
Respondent. Promulgated:
April 16, 2008

X -------------------------------------------------------------------------------------- X

DECISION

AZCUNA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court. The petition is seeking to set aside the Decision[1] rendered by the Court of
Appeals (CA) dated February 28, 2005 in the consolidated cases CA-G.R. SP Nos.
79446 and 82314, wherein the CA denied the petition in CA-G.R. SP No. 79446 while
partially granting the petition in CA-G.R. SP No. 82314, as well as the Resolution[2]
dated September 22, 2005 denying petitioners motion for reconsideration.

The antecedents are as follows:

Petitioner Steel Corporation of the Philippines (SCP) is engaged in manufacturing

construction materials, supplying approximately 50% of the domestic needs for
roofing materials.[3] On August 17, 1998, SCP-Federated Union of the Energy
Leaders General and Allied Services (FUEL-GAS) filed a petition for Certification
Election in its bid to represent the rank-and-file employees of the petitioner.[4]
Respondent SCP Employees Union (SCPEU) National Federation of Labor Unions
(NAFLU) intervened, seeking to participate and be voted for in such election[5] but
the same was denied for having been filed out of time.[6]

On September 14, 1998, a consent election was conducted, with FUEL-GAS and NO
UNION as choices. Said election was however declared a failure because less than a
majority of the rank-and-file employees cast their votes. FUEL-GAS filed an Election
Protest claiming that the certification election was characterized by and replete with
irregularities.[7] On September 21, 1998, NAFLU, the mother federation of
respondent, filed a petition for Certification Election for and on behalf of its affiliate,
seeking to represent the rank-and-file employees of petitioner.[8] The Med-Arbiter
denied the election protest of FUEL-GAS and granted the petition for certification
election filed by NAFLU and further ordered the

conduct of the election with NAFLU and NO UNION as choices. Both petitioner and
FUEL-GAS appealed to the Secretary of Labor, which appeals were later
consolidated.[9]

On August 27, 1999, the Department of Labor and Employment (DOLE)

Undersecretary rendered a consolidated decision ordering the conduct of a
certification election with FUEL-GAS, respondent and NO UNION as choices.[10]
Subsequent motions for reconsideration were denied on October 18, 1999.[11]
Unsatisfied, petitioner and FUEL-GAS appealed to the CA by way of certiorari.[12]

On April 14, 2000, the certification election, as ordered by the Med-Arbiter,

proceeded. FUEL-GAS participated without prejudice to the decision of the CA in its
pending petition. In said election, respondent emerged as winner; hence, the second
election protest filed by FUEL-GAS.[13]

On July 12, 2000, the CA, in CA-G.R. SP No. 55721, rendered a Decision[14] which
annulled and set aside the August 27, 1999 decision and October 18, 1999
resolution of the Undersecretary. The CA further directed the holding of a
certification election with FUEL-GAS and NO UNION as choices, to the exclusion of
respondent.[15]
On July 31, 2000, the Med-Arbiter dismissed FUEL-GAS election protest but deferred
the request of respondent to be declared winner in the certification election until
final resolution of the pending petitions with the CA.[16] Not satisfied with the
deferment of their certification as winner, respondent appealed to the Labor
Secretary.[17] It further filed a Manifestation before the CA pointing out that in the
April 14, 2000 certification election, it emerged as winner, and thus, the election
should be considered as an intervening event sufficient to bar another certification
election.[18] The CA, however, dismissed said manifestation on December 28,
2000.[19]

Meanwhile, on October 16, 2000, the Undersecretary rendered a Decision[20]

certifying respondent as the exclusive bargaining agent of petitioners employees.
Petitioner and FUEL-GAS timely filed motions for reconsideration of the aforesaid
decision.[21]
As a consequence of its certification as the exclusive bargaining agent, respondent
sent to petitioner CBA proposals. Petitioner, however, held in abeyance any action
on the proposals in view of its pending motion for reconsideration.[22]

Finding no justification in petitioners refusal to bargain with it, respondent filed a

Notice of Strike with the National Conciliation and Mediation Board (NCMB) on
December 11, 2000. The union raised the issue of unfair labor practice (ULP)
allegedly committed by petitioner for the latters refusal to bargain with it.[23]
On January 19, 2001, FUEL-GAS moved for the conduct of a certification election
pursuant to the CA decision.[24] On February 27, 2001, the Undersecretary affirmed
its October 16, 2000 decision.[25]

On March 16, 2001, the labor dispute was certified to the National Labor Relations
Commission (NLRC) for compulsory arbitration, which case was docketed as Cert.
Case No. 000200-01.[26] Again, on April 2, 2001, another Notice of Strike[27] was
filed by respondent for non-recognition as a certified union; refusal to bargain;
discrimination against union officers and members; harassment and intimidation;
and illegal dismissal, which was later consolidated with the certified case.

On December 13, 2001, acting on the January 19, 2001 petition for certification
election, the Med-Arbiter recommended the holding of another certification election
but with respondent and FUEL-GAS as contenders.[28] The decision was appealed
to the Labor Secretary. The Labor Secretary in turn dismissed the motion to conduct
certification election in a Resolution dated October 17, 2002.[29]

Meanwhile, in Cert. Case No. 000200-01, the NLRC issued a Resolution dated April
17, 2002, declaring petitioner as having no obligation to recognize respondent as
the certified bargaining agent; dismissing the charge of unfair labor practice;
declaring as illegal the strike held by the union; and declaring the loss of
employment of the officers of the union.[30] Petitioner filed a Motion for Partial
Reconsideration[31] of the resolution praying that additional employees be
dismissed. For its part, respondent also filed a Motion for Reconsideration.[32]

On May 20, 2002, respondent filed another Notice of Strike alleging as grounds,
petitioners refusal to bargain and union busting.[33] The notice was later dismissed
and respondent was enjoined from holding a strike.[34]

On January 7, 2003, respondent filed another Notice of Strike on the grounds of

refusal to bargain and union busting.[35] Respondent thereafter went on strike on
February 4, 2003. On February 7, 2003, the Labor Secretary certified the dispute to
the NLRC and directed the employees to return to work.[36] The second certified
case was docketed as NLRC NCR CC No. 00253-03. On September 8, 2003, the NLRC
rendered a Decision[37] ordering petitioner to bargain collectively with respondent
as the duly certified bargaining agent. In addition, it ordered the reinstatement of
the employees who were dismissed in connection with the February 4, 2003 strike,
without loss of seniority rights and diminution of salary.[38] Petitioner filed a
motion for reconsideration but it was denied in the Resolution[39] dated January
26, 2004. The decision and resolution became the subject of a petition before the CA
in CA-G.R. SP No. 82314.

Meantime, in the first certified case, Cert. Case No. 000200-01, the NLRC, in a
Decision[40] dated February 12, 2003 opted to resolve the parties respective
motions for reconsideration collectively. In said decision, the NLRC modified its
earlier resolution by ordering the reinstatement of the union officers whom it
previously ordered terminated, which in effect denied petitioners motion for partial
reconsideration.[41] Petitioner filed a motion for reconsideration but it was denied
in a Resolution dated June 30, 2003.[42] These decision and resolution became the
subject of a petition before the CA in CA-G.R. SP No. 79446.

The petitions before the CA were later consolidated. In CA-G.R. SP No. 79446, herein
petitioner argued that:

PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION GRAVELY

ABUSED ITS DISCRETION IN ORDERING THE REINSTATEMENT OF THE OFFICERS
OF PRIVATE RESPONDENT UNION DESPITE ITS CONCLUSION THAT [PRIVATE]
RESPONDENT HAD CONDUCTED AN ILLEGAL STRIKE.[43]

In the other case, CA-G.R. SP No. 82314, petitioner herein argued that:

PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION GRAVELY

ABUSED ITS DISCRETION IN DIRECTING PETITIONER TO RECOGNIZE PRIVATE
RESPONDENT UNION DESPITE THE DECISION OF THIS COURT DIRECTING THE
HOLDING OF ANOTHER CERTIFICATION ELECTION.

II

PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION COMMITTED

GRAVE ABUSE OF DISCRETION WHEN IT REVERSED ITS OWN DECISION IN THE
SAME CASE WHICH HAS BECOME FINAL AND EXECUTORY.

III

PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION GRAVELY

ABUSED ITS DISCRETION WHEN IT CONCLUDED THAT THE STRIKE CONDUCTED
BY SCPEU-NAFLU IS NOT ILLEGAL.

IV

PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION GRAVELY

ABUSED ITS DISCRETION IN ORDERING THE REINSTATEMENT OF THE
EMPLOYEES WHO DEFIED THE RETURN TO WORK ORDER OF THE SECRETARY OF
LABOR.[44]
On February 28, 2005, the CA rendered a Decision[45] denying the petition in CA-
G.R. SP No. 79446 while partially granting the petition in CA-G.R. SP No. 82314. The
decretal portion of which stated:

WHEREFORE, premises considered, the Petition in CA-G.R. SP No. 79446 is DENIED

while the Petition in CA-G.R. SP No. 82314 is PARTIALLY GRANTED, decreeing
herein contending parties to comply with the directives of this Tribunal in CA-G.R.
SP No. 55721.
SO ORDERED.

In denying the petition in CA-G.R. SP No. 79446, the CA found no cogent reason to
reverse the assailed decision of the NLRC in Cert. Case No. 000200-01. The CA
concluded that petitioners claims are based on pure allegations and not supported
by any substantial evidence.[46]

In partially granting the petition in CA-G.R. SP No. 82314, the CA reasoned that by
virtue of its decision in CA-G.R. SP No. 55721 dated July 12, 2000, the second
certification election was, in effect, nullified and set aside. It is to be noted that
FUEL-GAS participated in the second election without prejudice to the petition it
filed in court. The CA added that since it did not recognize the second certification
election held on April 14, 2000, wherein NAFLU was voted as the duly-elected
bargaining agent of petitioners rank-and-file employees, clearly it has no basis for
its claim and it has no right to demand that petitioner collectively bargain with
it.[47]

Petitioner filed a Motion for Reconsideration[48] which was denied in the

Resolution[49] dated September 22, 2005.

Hence, this petition raising the following issues:

[WHETHER OR NOT] THE COURT OF APPEALS HAS DEPARTED FROM THE LAW
AND ESTABLISHED JURISPRUDENCE WHEN IT AFFIRMED THE REINSTATEMENT
OF OFFICERS WHO PARTICIPATED IN AN ILLEGAL STRIKE.

II

[WHETHER OR NOT] THE COURT OF APPEALS SERIOUSLY ERRED WHEN IT

FAILED TO DECLARE AS ILLEGAL THE STRIKE HELD BY THE UNION ON FEBRUARY
4, 2003.

III
[WHETHER OR NOT] THE COURT OF APPEALS SERIOUSLY ERRED WHEN IT
FAILED TO INVALIDATE THE ORDER OF THE NATIONAL LABOR RELATIONS
COMMISSION DIRECTING THE REINSTATEMENT OF THE STRIKERS WHO DEFIED
THE RETURN-TO-WORK ORDER OF THE LABOR SECRETARY.

IV

[WHETHER OR NOT] THE COURT OF APPEALS COMMITTED A SERIOUS ERROR

WHEN IT RULED THAT THE NLRC HAS RECONSIDERED ITS CONCLUSION ON THE
ILLEGALITY OF THE MARCH 2001 STRIKE.

[WHETHER OR NOT] THE COURT OF APPEALS COMMITTED A SERIOUS ERROR

WHEN IT CONCLUDED THAT THE NATIONAL LABOR RELATIONS COMMISSION
MAY RECONSIDER IN THE SECOND CERTIFIED CASE ITS DECISION ON THE FIRST
CERTIFIED CASE WHICH HAS BECOME FINAL AND EXECUTORY.[50]

Petitioner contends that the February 2003 strike held by respondent is illegal. To
buttress its claim, petitioner argues that respondent has no right to demand that it
bargain with the latter. Its refusal to recognize respondent as the bargaining
representative of its employees is based on the directive of the CA in CA-G.R. SP No.
55721 to conduct another certification election. Petitioner maintains that
respondent never denied that its purpose for holding the strike was to force it to
recognize the latter over the other union. Since the strike is a union-recognition-
strike, it is illegal.[51]
Petitioner further argues that the strike was manifestly illegal for it was in gross
violation of the Labor Code, particularly Art. 264,[52] which expressly prohibits the
declaration of a strike over an issue that is pending arbitration between the
parties.[53] Since the labor dispute in the first certified case, Cert. Case No. 000200-
01, was still pending compulsory arbitration at the time of the strike on February 4,
2003, and since the said strike was based substantially on the same grounds, i.e., the
alleged refusal by petitioner to recognize the union, the strike is illegal by express
provision of the law.

Moreover, petitioner adds that the issue of illegality of the February 2003 strike was
already resolved by the NLRC in Cert. Case No. 000200-01 involving a strike in
March 2001 over the same labor dispute, namely, the alleged refusal of petitioner to
recognize respondent. As such, the NLRCs decision in Cert. Case No. 000200-01
constitutes res judicata in the second certified case, NLRC NCR CC No. 00253-03.[54]

Petitioner also contends that the union officers who participated in the illegal strike
are all deemed to have lost their employment. Unlike ordinary members of the
union, whose dismissal requires that the employer prove that they committed illegal
acts, mere participation of the union officers in an illegal strike warrants their
termination from employment. Consequently, since the strike was illegal, it follows
that the termination from employment of the union officers was warranted.[55]

Petitioner maintains that it was erroneous on the part of the CA not to have
reversed the NLRC decision[56] ordering the reinstatement of the employees which
were dismissed in connection with the February 4, 2003 strike. It argues that since
the termination of the employees was due to their refusal to comply with the return-
to-work order issued by the Labor Secretary, not to their alleged participation in an
illegal strike, the CA erred in affirming the decision.[57]

Finally, petitioner avers that the CA also committed serious errors on procedural
issues when it concluded that the NLRC may reconsider in Cert. Case No. 000200-01
its decision in NLRC NCR CC No. 00253-03.[58]

The petition is meritorious.

Whether or not respondent is the recognized collective bargaining agent had been
finally resolved in the negative. Consequently, as correctly concluded by the CA, it
could not compel petitioner to bargain with it. Thus, the only issues left for
determination are: the validity of the strike participated in by the officers of the
respondent union; and the validity of their termination from employment by reason
of such participation.

The strike is a legitimate weapon in the human struggle for a decent existence. It is
considered as the most effective weapon in protecting the rights of the employees to
improve the terms and conditions of their employment. But to be valid, a strike must
be pursued within legal bounds. The right to strike as a means for the attainment of
social justice is never meant to oppress or destroy the employer. The law provides
limits for its exercise.[59]

In the instant case, the strike undertaken by the officers of respondent union is
patently illegal for the following reasons: (1) it is a union-recognition-strike which is
not sanctioned by labor laws; (2) it was undertaken after the dispute had been
certified for compulsory arbitration; and (3) it was in violation of the Secretarys
return-to-work order.

Respondents notices of strike were founded on petitioners continued refusal to

bargain with it. It thus staged the strike to compel petitioner to recognize it as the
collective bargaining agent, making it a union-recognition-strike. As its legal
designation implies, this kind of strike is calculated to compel the employer to
recognize ones union and not other contending groups, as the employees bargaining
representative to work out a collective bargaining agreement despite the striking
unions doubtful majority status to merit voluntary recognition and lack of formal
certification as the exclusive representative in the bargaining unit.[60]
The certification election that was conducted where respondent emerged as winner,
not having been recognized as valid, it has no authority to represent the rank and
file employees of petitioner. Thus, it could not ask

petitioner to bargain with it. As the issue of its identity had been the subject of a
separate case which had been settled by the court with finality,[61] petitioner
cannot, therefore, be faulted in refusing to bargain. Neither could this Court sustain
respondents imputation of unfair labor practice and union busting against
petitioner. With more reason, this Court cannot sustain the validity of the strike
staged on such basis.

Even if this Court were to uphold the validity of respondents purpose or objective in
staging a strike, still, the strike would be declared illegal for having been conducted
in utter defiance of the Secretarys return-to-work order and after the dispute had
been certified for compulsory arbitration. Although ostensibly there were several
notices of strike successively filed by respondent, these notices were founded on
substantially the same grounds petitioners continued refusal to recognize it as the
collective bargaining representative.

Article 263(g) of the Labor Code provides:

When, in his opinion, there exists a labor dispute causing or likely to cause a strike
or lockout in an industry indispensable to the national interest, the Secretary of
Labor and Employment may assume jurisdiction over the dispute and decide it or
certify the same to the Commission for compulsory arbitration. Such assumption or
certification shall have the effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption or certification order. If
one has already taken place at the time of assumption or certification, all striking or
locked out employees shall immediately return to work and the employer shall
immediately resume operations and readmit all workers under the same terms and
conditions prevailing before the strike or lockout. The Secretary of Labor and
Employment or the Commission may seek the assistance of law enforcement
agencies to ensure the compliance with this provision as well as with such orders as
he may issue to enforce the same. x x x.[62]

The powers granted to the Secretary under Article 263(g) of the Labor Code have
been characterized as an exercise of the police power of the State, aimed at
promoting the public good. When the Secretary exercises these powers, he is
granted great breadth of discretion to find a solution to a labor dispute. The most
obvious of these powers is the automatic enjoining of an impending strike or
lockout or its lifting if one has already taken place.[63]
The moment the Secretary of Labor assumes jurisdiction over a labor dispute in an
industry indispensable to national interest, such assumption shall have the effect of
automatically enjoining the intended or impending strike. It was not even necessary
for the Secretary of Labor to issue another order directing a return to work. The
mere issuance of an assumption order by the Secretary of Labor automatically
carries with it a return-to-work order, even if the directive to return to work is not
expressly stated in the assumption order.[64]

A return-to-work order imposes a duty that must be discharged more than it confers
a right that may be waived. While the workers may choose not to obey, they do so at
the risk of severing their relationship with their employer.[65]

Says the Labor Code:

Art. 264. Prohibited activities.

xxx

No strike or lockout shall be declared after assumption of jurisdiction by the

President or the Secretary or after certification or submission of the dispute to
compulsory or voluntary arbitration or during the pendency of cases involving the
same grounds for the strike or lockout.

Returning to work in this situation is not a matter of option or voluntariness but of

obligation. The worker must return to his job together with his co-workers so that
the operations of the company can be resumed and it can continue serving the
public and promoting its interest. This extraordinary authority given to the
Secretary of Labor is aimed at arriving at a peaceful and speedy solution to labor
disputes, without jeopardizing national interests. Regardless of their motives, or the
validity of their claims, the striking workers must cease and/or desist from any and
all acts that undermine or tend to undermine this authority of the Secretary of
Labor, once an assumption and/or certification order is issued. They cannot, for
instance, ignore return-to-work orders, citing unfair labor practices on the part of
the company, to justify their action.[66]

Respondent, in the instant case, after the assumption of jurisdiction and certification
of the dispute to the NLRC for compulsory arbitration, filed notices of strike and
staged the strike obviously contrary to the provisions of labor laws. Worse, it filed
not one but several notices of strike which resulted in two certified cases which
were earlier consolidated. These disputes could have been averted had respondent
respected the CAs decision. That way, the collective bargaining agent would have
been determined and petitioner could have been compelled to bargain. Respondent,
through its officers, instead opted to use the weapon of strike to force petitioner to
recognize it as the bargaining agent. The strike, having been staged after the dispute
had been certified for arbitration and contrary to the return-to-work order, became
a prohibited activity, and was thus illegal.
Strikes exert disquieting effects not only on the relationship between labor and
management, but also on the general peace and progress of

society, not to mention the economic well-being of the State. It is a weapon that can
either breathe life to or destroy the union and members in their struggle with
management for a more equitable due of their labors. Hence, the decision to wield
the weapon of strike must therefore rest on a rational basis, free from emotionalism,
unswayed by the tempers and tantrums of a few, and firmly focused on the
legitimate interest of the union which should not however be antithetical to the
public welfare. In every strike staged by a union, the general peace and progress of
society and public welfare are involved.[67]

Having settled that the subject strike was illegal, this Court shall now determine the
proper penalty to be imposed on the union officers who knowingly participated in
the strike.

Article 264 of the Labor Code further provides:

Art. 264. Prohibited activities. x x x

Any workers whose employment has been terminated as a consequence of an

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

It bears stressing that the law makes a distinction between union members and
union officers. A worker merely participating in an illegal strike may not be
terminated from employment. It is only when he commits illegal acts during a strike
that he may be declared to have lost employment

status. For knowingly participating in an illegal strike or participating in the

commission of illegal acts during a strike, the law provides that a union officer may
be terminated from employment. The law grants the employer the option of
declaring a union officer who participated in an illegal strike as having lost his
employment. It possesses the right and prerogative to terminate the union officers
from service.[68] Otherwise, the workers will simply refuse to return to their work
and cause a standstill in the company operations while retaining the positions they
refuse to discharge and preventing management from filling up their positions.[69]
WHEREFORE, the petition is partly GRANTED. The decision of the Court of Appeals
dated February 28, 2005 in the consolidated cases CA-G.R. SP Nos. 79446 and 82314
and its Resolution dated September 22, 2005 are MODIFIED in that the strike in
question is found ILLEGAL and the order to reinstate the union officers who
participated in the illegal strike is REVERSED and SET ASIDE.

No costs.

SO ORDERED.