Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

PTGWO CBA. FVCLU-PTGWO moved to dismiss the petition on the ground that the certification election petition was filed outside the freedom period or outside of the sixty (60) days before the expiration of the CBA on May 31, 2003. Action on the Petition and Related Incidents

G.R. No. 176249

November 27, 2009 On June 17, 2003, Med-Arbiter Arturo V. Cosuco dismissed the petition on the ground that it was filed outside the 60-day period counted from the May 31, 2003 expiry date of the amended CBA. 6 SANAMA-SIGLO appealed the Med-Arbiters Order to the DOLE Secretary, contending that the filing of the petition on January 21, 2003 was within 60-days from the January 30, 2003 expiration of the original CBA term. DOLE Secretary Patricia A. Sto. Tomas sustained SANAMA-SIGLOs position, thereby setting aside the decision of the Med-Arbiter.7 She ordered the conduct of a certification election in the company. FVCLU-PTGWO moved for the reconsideration of the Secretarys decision. On November 6, 2003, DOLE Acting Secretary Manuel G. Imson granted the motion; he set aside the August 6, 2003 DOLE decision and dismissed the petition as the Med-Arbiters Order of June 17, 2003 did.8 The Acting Secretary held that the amended CBA (which extended the representation aspect of the original CBA by four [4] months) had been ratified by members of the bargaining unit some of whom later organized themselves as SANAMA-SIGLO, the certification election applicant. Since these SANAMA-SIGLO members fully accepted and in fact received the benefits arising from the amendments, the Acting Secretary rationalized that they also accepted the extended term of the CBA and cannot now file a petition for certification election based on the original CBA expiration date. SANAMA-SIGLO moved for the reconsideration of the Acting Secretarys Order, but Secretary Sto. Tomas denied the motion in her Order of January 30, 2004. 9 SANAMA-SIGLO sought relief from the CA through a petition for certiorari under Rule 65 of the Rules of Court based on the grave abuse of discretion the Labor Secretary committed when she reversed her earlier decision calling for a certification election. SANAMA-SIGLO pointed out that the Secretarys new ruling is patently contrary to the express provision of the law and established jurisprudence. THE CA DECISION The CA found SANAMA-SIGLOs petition meritorious on the basis of the applicable law10 and the rules,11 as interpreted in the congressional debates. It set aside the challenged DOLE Secretary decisions and

FVC LABOR UNION-PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (FVCLU-PTGWO),Petitioner, vs. SAMA-SAMANG NAGKAKAISANG MANGGAGAWA SA FVCSOLIDARITY OF INDEPENDENT AND GENERAL LABOR ORGANIZATIONS (SANAMA-FVC-SIGLO), Respondent. DECISION BRION, J.: We pass upon the petition for review on certiorari under Rule 45 of the Rules of Court1 filed by FVC Labor UnionPhilippine Transport and General Workers Organization (FVCLU-PTGWO) to challenge the Court of Appeals (CA) decision of July 25, 20062 and its resolution rendered on January 15, 20073 in C.A. G.R. SP No. 83292. 4 THE ANTECEDENTS The facts are undisputed and are summarized below. On December 22, 1997, the petitioner FVCLU-PTGWO the recognized bargaining agent of the rank-and-file employees of the FVC Philippines, Incorporated (company) signed a five-year collective bargaining agreement (CBA) with the company. The five-year CBA period was from February 1, 1998 to January 30, 2003. 5 At the end of the 3rd year of the five-year term and pursuant to the CBA, FVCLU-PTGWO and the company entered into the renegotiation of the CBA and modified, among other provisions, the CBAs duration. Article XXV, Section 2 of the renegotiated CBA provides that "this re-negotiation agreement shall take effect beginning February 1, 2001 and until May 31, 2003" thus extending the original five-year period of the CBA by four (4) months. On January 21, 2003, nine (9) days before the January 30, 2003 expiration of the originally-agreed five-year CBA term (and four [4] months and nine [9] days away from the expiration of the amended CBA period), the respondent Sama-Samang Nagkakaisang Manggagawa sa FVC-Solidarity of Independent and General Labor Organizations (SANAMA-SIGLO) filed before the Department of Labor and Employment (DOLE) a petition for certification election for the same rank-and-file unit covered by the FVCLU-

reinstated her earlier ruling calling for a certification election. The appellate court declared: It is clear from the foregoing that while the parties may renegotiate the other provisions (economic and non-economic) of the CBA, this should not affect the five-year representation aspect of the original CBA. If the duration of the renegotiated agreement does not coincide with but rather exceeds the original five-year term, the same will not adversely affect the right of another union to challenge the majority status of the incumbent bargaining agent within sixty (60) days before the lapse of the original five (5) year term of the CBA. In the event a new union wins in the certification election, such union is required to honor and administer the renegotiated CBA throughout the excess period. FVCLU-PTGWO moved to reconsider the CA decision but the CA denied the motion in its resolution of January 15, 2007. 12 With this denial, FVCLUPTGWO now comes before us to challenge the CA rulings. 13 It argues that in light of the peculiar attendant circumstances of the case, the CA erred in strictly applying Section 11 (11b), Rule XI, Book V of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, s. 1997.14 Apparently, the "peculiar circumstances" the FVCLU-PTGWO referred to relate to the economic and other provisions of the February 1, 1998 to January 30, 2003 CBA that it renegotiated with the company. The renegotiated CBA changed the CBAs remaining term from February 1, 2001 to May 31, 2003. To FVCLU-PTGWO, this extension of the CBA term also changed the unions exclusive bargaining representation status and effectively moved the reckoning point of the 60-day freedom period from January 30, 2003 to May 30, 2003. FVCLU-PTGWO thus moved to dismiss the petition for certification election filed on January 21, 2003 (9 days before the expiry date on January 30, 2003 of the original CBA) by SANAMA-SIGLO on the ground that the petition was filed outside the authorized 60-day freedom period. It also submits in its petition that the SANAMA-SIGLO is estopped from questioning the extension of the CBA term under the amendments because its members are the very same ones who approved the amendments, including the expiration date of the CBA, and who benefited from these amendments. Lastly, FVCLU-PTGWO posits that the representation petition had been rendered moot by a new CBA it entered into with the company covering the period June 1, 2003 to May 31, 2008. 151avvphi1 Required to comment by the Court16 and to show cause for its failure to comply,17 SANAMA-SIGLO manifested on October 10, 2007 that: since the promulgation of the CA decision on July 25, 2006 or three years after the petition for certification election was filed, the local leaders of SANAMA-

SIGLO had stopped reporting to the federation office or attending meetings of the council of local leaders; the SANAMA-SIGLO counsel, who is also the SIGLO national president, is no longer in the position to pursue the present case because the local union and its leadership, who are principals of SIGLO, had given up and abandoned their desire to contest the representative status of FVCLU-PTGWO; and a new CBA had already been signed by FVCLU-PTGWO and the company.18Under these circumstances, SANAMA-SIGLO contends that pursuing the case has become futile, and accordingly simply adopted the CA decision of July 25, 2006 as its position; its counsel likewise asked to be relieved from filing a comment in the case. We granted the request for relief and dispensed with the filing of a comment.19 THE COURTS RULING While SANAMA-SIGLO has manifested its abandonment of its challenge to the exclusive bargaining representation status of FVCLU-PTGWO, we deem it necessary in the exercise of our discretion to resolve the question of law raised since this exclusive representation status issue will inevitably recur in the future as workplace parties avail of opportunities to prolong workplace harmony by extending the term of CBAs already in place. 20 The legal question before us centers on the effect of the amended or extended term of the CBA on the exclusive representation status of the collective bargaining agent and the right of another union to ask for certification as exclusive bargaining agent. The question arises because the law allows a challenge to the exclusive representation status of a collective bargaining agent through the filing of a certification election petition only within 60 days from the expiration of the five-year CBA. Article 253-A of the Labor Code covers this situation and it provides: Terms of a collective bargaining agreement. Any Collective Bargaining Agreement that the parties may enter into, shall, insofar as the representation aspect is concerned, be for a term of five (5) years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to the day immediately following such date. If any such agreement is entered into beyond six months, the parties shall agree on the duration of retroactivity thereof. In case of a deadlock in the

renegotiation of the collective bargaining agreement, the parties may exercise their rights under this Code. This Labor Code provision is implemented through Book V, Rule VIII of the Rules Implementing the Labor Code21which states: Sec. 14. Denial of the petition; grounds. The Med-Arbiter may dismiss the petition on any of the following grounds: xxxx (b) the petition was filed before or after the freedom period of a duly registered collective bargaining agreement;provided that the sixty-day period based on the original collective bargaining agreement shall not be affected by any amendment, extension or renewal of the collective bargaining agreement (underscoring supplied). xxxx The root of the controversy can be traced to a misunderstanding of the interaction between a unions exclusive bargaining representation status in a CBA and the term or effective period of the CBA. FVCLU-PTGWO has taken the view that its exclusive representation status should fully be in step with the term of the CBA and that this status can be challenged only within 60 days before the expiration of this term. Thus, when the term of the CBA was extended, its exclusive bargaining status was similarly extended so that the freedom period for the filing of a petition for certification election should be counted back from the expiration of the amended CBA term. We hold this FVCLU-PTGWO position to be correct, but only with respect to the original five-year term of the CBA which, by law, is also the effective period of the unions exclusive bargaining representation status. While the parties may agree to extend the CBAs original five-year term together with all other CBA provisions, any such amendment or term in excess of five years will not carry with it a change in the unions exclusive collective bargaining status. By express provision of the above-quoted Article 253-A, the exclusive bargaining status cannot go beyond five years and the representation status is a legal matter not for the workplace parties to agree upon. In other words, despite an agreement for a CBA with a life of more than five years, either as an original provision or by amendment, the bargaining unions exclusive bargaining status is effective only for five years and can be challenged within sixty (60) days prior to the expiration of the CBAs first five years. As we said in San Miguel Corp. Employees UnionPTGWO, et al. v. Confesor, San Miguel Corp., Magnolia Corp. and San Miguel Foods, Inc.,22where we cited the Memorandum of the Secretary of Labor and Employment dated February 24, 1994:

In the event however, that the parties, by mutual agreement, enter into a renegotiated contract with a term of three (3) years or one which does not coincide with the said five-year term and said agreement is ratified by majority of the members in the bargaining unit, the subject contract is valid and legal and therefore, binds the contracting parties. The same will however not adversely affect the right of another union to challenge the majority status of the incumbent bargaining agent within sixty (60) days before the lapse of the original five (5) year term of the CBA. In the present case, the CBA was originally signed for a period of five years, i.e., from February 1, 1998 to January 30, 2003, with a provision for the renegotiation of the CBAs other provisions at the end of the 3rd year of the five-year CBA term. Thus, prior to January 30, 2001 the workplace parties sat down for renegotiation but instead of confining themselves to the economic and non-economic CBA provisions, also extended the life of the CBA for another four months, i.e., from the original expiry date on January 30, 2003 to May 30, 2003. As discussed above, this negotiated extension of the CBA term has no legal effect on the FVCLU-PTGWOs exclusive bargaining representation status which remained effective only for five years ending on the original expiry date of January 30, 2003. Thus, sixty days prior to this date, or starting December 2, 2002, SANAMA-SIGLO could properly file a petition for certification election. Its petition, filed on January 21, 2003 or nine (9) days before the expiration of the CBA and of FVCLU-PTGWOs exclusive bargaining status, was seasonably filed. We thus find no error in the appellate courts ruling reinstating the DOLE order for the conduct of a certification election. If this ruling cannot now be given effect, the only reason is SANAMA-SIGLOs own desistance; we cannot disregard its manifestation that the members of SANAMA themselves are no longer interested in contesting the exclusive collective bargaining agent status of FVCLU-PTGWO. This recognition is fully in accord with the Labor Codes intent to foster industrial peace and harmony in the workplace. WHEREFORE, premises considered, we AFFIRM the correctness of the challenged Decision and Resolution of the Court of Appeals and accordingly DISMISS the petition, but nevertheless DECLARE that no certification election, pursuant to the underlying petition for certification election filed with the Department of Labor and Employment, can be enforced as this petition has effectively been abandoned. SO ORDERED.

unconditional acceptance back to work of the striking employees. But these were flatly rejected. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 100158 June 2, 1992 ST. SCHOLASTICA'S COLLEGE, petitioner, vs. HON. RUBEN TORRES, in his capacity as SECRETARY OF LABOR AND EMPLOYMENT, and SAMAHANG NG MANGGAGAWANG PANGEDUKASYON SA STA. ESKOLASTIKA-NAFTEU, respondents. Likewise, on 9 November 1990, respondent SECRETARY denied reconsideration of his return-to-work order and sternly warned the striking employees to comply with its terms. On 12 November 1990, the UNION received the Order. Thereafter, particularly on 14 and 15 November 1990, the parties held conciliation meetings before the National Conciliation and Mediation Board where the UNION pruned down its demands to three (3), viz.: that striking employees be reinstated under the same terms and conditions before the strike; that no retaliatory or disciplinary action be taken against them; and, that CBA negotiations be continued. However, these efforts proved futile as the COLLEGE remained steadfast in its position that any return-to-work offer should be unconditional. On 16 November 1990, the COLLEGE manifested to respondent SECRETARY that the UNION continued to defy his return-to-work order of 5 November 1990 so that "appropriate steps under the said circumstances" may be undertaken by him. 1 On 23 November 1990, the COLLEGE mailed individual notices of termination to the striking employees, which were received on 26 November 1990, or later. The UNION officers and members then tried to return to work but were no longer accepted by the COLLEGE. On 5 December 1990, a Complaint for Illegal Strike was filed against the UNION, its officers and several of its members before the National Labor Relations Commission (NLRC), docketed as NLRC Case No. 00-12-0625690. The UNION moved for the enforcement of the return-to-work order before respondent SECRETARY, citing "selective acceptance of returning strikers" by the COLLEGE. It also sought dismissal of the complaint. Since then, no further hearings were conducted. Respondent SECRETARY required the parties to submit their respective position papers. The COLLEGE prayed that respondent SECRETARY uphold the dismissal of the employees who defied his return-to-work order. On 12 April 1991, respondent SECRETARY issued the assailed Order which, inter alia, directed the reinstatement of striking UNION members, premised on his finding that no violent or otherwise illegal act accompanied the conduct of the strike and that a fledgling UNION like private respondent was "naturally expected to exhibit unbridled if inexperienced enthusiasm, in asserting its existence". 2 Nevertheless, the aforesaid Order held UNION officers responsible for the violation of the

BELLOSILLO, J.: The principal issue to be resolved in this recourse is whether striking union members terminated for abandonment of work after failing to comply with return-to-work orders of the Secretary of Labor and Employment (SECRETARY, for brevity) should by law be reinstated. On 20 July 1990, petitioner St. Scholastica's College (COLLEGE, for brevity) and private respondent Samahan ng Manggagawang Pang-Edukasyon sa Sta. Eskolastika-NAFTEU (UNION, for brevity) initiated negotiations for a first-ever collective bargaining agreement. A deadlock in the negotiations prompted the UNION to file on 4 October 1990 a Notice of Strike with the Department of Labor and Employment (DEPARTMENT, for brevity), docketed as NCMB-NCR-NS-10-826. On 5 November 1990, the UNION declared a strike which paralyzed the operations of the COLLEGE. Affecting as it did the interest of the students, public respondent SECRETARY immediately assumed jurisdiction over the labor dispute and issued on the same day, 5 November 1990, a return-towork order. The following day, 6 November 1990, instead of returning to work, the UNION filed a motion for reconsideration of the return-to-work order questioning inter alia the assumption of jurisdiction by the SECRETARY over the labor dispute. On 9 November 1990, the COLLEGE sent individual letters to the striking employees enjoining them to return to work not later than 8:00 o'clock A.M. of 12 November 1990 and, at the same time, giving notice to some twenty-three (23) workers that their return would be without prejudice to the filing of appropriate charges against them. In response, the UNION presented a list of (6) demands to the COLLEGE in a dialogue conducted on 11 November 1990. The most important of these demands was the

return-to-work orders of 5 and 9 November 1990 and, correspondingly, sustained their termination. Both parties moved for partial reconsideration of the Order, with petitioner COLLEGE questioning the wisdom of the reinstatement of striking UNION members, and private respondent UNION, the dismissal of its officers. On 31 May 1991, in a Resolution, respondent SECRETARY denied both motions. Hence, this Petition for Certiorari, with Prayer for the Issuance of a Temporary Restraining Order. On 26 June 1991, We restrained the SECRETARY from enforcing his assailed Orders insofar as they directed the reinstatement of the striking workers previously terminated. Petitioner questions the assumption by respondent SECRETARY of jurisdiction to decide on termination disputes, maintaining that such jurisdiction is vested instead in the Labor Arbiter pursuant to Art. 217 of the Labor Code, thus Art. 217. Jurisdiction of Labor Arbiters and the Commission. (a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, the following cases involving all workers, whether agricultural or non-agricultural: . . . 2. Termination disputes . . . 5. Cases arising from any violation of Article 264 of this Code, including questions on the legality of strikes and lock-outs . . . In support of its position, petitioner invokes Our ruling in PAL v. Secretary of Labor and Employment 3 where We held: The labor Secretary exceeded his jurisdiction when he restrained PAL from taking disciplinary measures against its guilty employees, for, under Art. 263 of the Labor Code, all that the Secretary may enjoin is the holding of the strike but not the company's right to take action against union officers who participated in the illegal strike and committed illegal acts. Petitioner further contends that following the doctrine laid down in Sarmiento v. Tuico 4 and Union of Filipro Employees v. Nestle Philippines, Inc., 5 workers who refuse to obey a return-to-work order are not entitled to be paid for work not done, or to reinstatement to the positions they have abandoned of their refusal to return thereto as ordered.

Taking a contrary stand, private respondent UNION pleads for reinstatement of its dismissed officers considering that the act of the UNION in continuing with its picket was never characterized as a "brazen disregard of successive legal orders", which was readily apparent in Union Filipro Employees v. Nestle Philippines, Inc., supra, nor was it a willful refusal to return to work, which was the basis of the ruling in Sarmiento v. Tuico, supra. The failure of UNION officers and members to immediately comply with the return-to-work orders was not because they wanted to defy said orders; rather, they held the view that academic institutions were not industries indispensable to the national interest. When respondent SECRETARY denied their motion for reconsideration, however, the UNION intimated that efforts were immediately initiated to fashion out a reasonable return-to-work agreement with the COLLEGE, albeit, if failed. The issue on whether respondent SECRETARY has the power to assume jurisdiction over a labor dispute and its incidental controversies, causing or likely to cause a strike or lockout in an industry indispensable to the national interest, was already settled in International Pharmaceuticals, Inc. v. Secretary of Labor and Employment. 6 Therein, We ruled that: . . . [T]he Secretary was explicitly granted by Article 263 (g) of the Labor Code the authority to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, and decide the same accordingly. Necessarily, this authority to assume jurisdiction over the said labor dispute must include and extend to all questions and include and extend to all questions and controversies arising therefrom, including cases over which the Labor Arbiter has exclusive jurisdiction. And rightly so, for, as found in the aforesaid case, Article 217 of the Labor Code did contemplate of exceptions thereto where the SECRETARY is authorized to assume jurisdiction over a labor dispute otherwise belonging exclusively to the Labor Arbiter. This is readily evident from its opening proviso reading "(e)xcept as otherwise provided under this Code . . . Previously, We held that Article 263 (g) of the Labor Code was broad enough to give the Secretary of Labor and Employment the power to take jurisdiction over an issue involving unfair labor practice. 7 At first glance, the rulings above stated seem to run counter to that of PAL v. Secretary of Labor and Employment, supra, which was cited by petitioner. But the conflict is only apparent, not real. To recall, We ruled in the latter case that the jurisdiction of the Secretary of Labor and Employment in assumption and/or certification cases is limited to the issues that are involved in the disputes or to those that are submitted to him for resolution. The seeming difference is, however,

reconcilable. Since the matter on the legality or illegality of the strike was never submitted to him for resolution, he was thus found to have exceeded his jurisdiction when he restrained the employer from taking disciplinary action against employees who staged an illegal strike. Before the Secretary of Labor and Employment may take cognizance of an issue which is merely incidental to the labor dispute, therefore, the same must be involved in the labor disputed itself, or otherwise submitted to him for resolution. If it was not, as was the case in PAL v. Secretary or Labor and Employment, supra, and he nevertheless acted on it, that assumption of jurisdiction is tantamount to a grave abuse of discretion. Otherwise, the ruling in International Pharmaceuticals, Inc. v. Secretary of Labor and Employment, supra, will apply. The submission of an incidental issue of a labor dispute, in assumption and/or certification cases, to the Secretary of Labor and Employment for his resolution is thus one of the instances referred to whereby the latter may exercise concurrent jurisdiction together with the Labor Arbiters. In the instant petition, the COLLEGE in its Manifestation, dated 16 November 1990, asked the "Secretary of Labor to take the appropriate steps under the said circumstances." It likewise prayed in its position paper that respondent SECRETARY uphold its termination of the striking employees. Upon the other hand, the UNION questioned the termination of its officers and members before respondent SECRETARY by moving for the enforcement of the return-to-work orders. There is no dispute then that the issue on the legality of the termination of striking employees was properly submitted to respondent SECRETARY for resolution. Such an interpretation will be in consonance with the intention of our labor authorities to provide workers immediate access to their rights and benefits without being inconvenienced by the arbitration and litigation process that prove to be not only nerve-wracking, but financially burdensome in the long run. Social justice legislation, to be truly meaningful and rewarding to our workers, must not be hampered in its application by long-winded arbitration and litigation. Rights must be asserted and benefits received with the least inconvenience. For, labor laws are meant to promote, not defeat, social justice (Maternity Children's Hospital v. Hon. Secretary of Labor ). 8 After all, Art. 4 of the Labor Code does state that all doubts in the implementation and interpretation of its provisions, including its implementing rules and regulations, shall be resolved in favor of labor. We now come to the more pivotal question of whether striking union members, terminated for abandonment of work after failing to comply strictly with a return-to-work order, should be reinstated. We quote hereunder the pertinent provisions of law which govern the effects of defying a return-to-work order:

1. Article 263 (g) of the Labor Code Art. 263. Strikes, picketing, and lockouts. . . . (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same . . . (as amended by Sec. 27, R.A. 6715; emphasis supplied). 2. Article 264, same Labor Code Art. 264. Prohibited activities. (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout . . . (emphasis supplied). Any worker whose employment has been terminated as consequence of an unlawful lockout shall be entitled to reinstatement with full back wages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his

employment, even if a replacement had been hired by the employer during such lawful strike . . . (emphasis supplied). 3. Section 6, Rule IX, of the New Rules of Procedure of the NLRC (which took effect on 31 August 1990) Sec. 6. Effects of Defiance. Non-compliance with the certification order of the Secretary of Labor and Employment or a return to work order of the Commission shall be considered an illegal act committed in the course of the strike or lockout and shall authorize the Secretary of Labor and Employment or the Commission, as the case may be, to enforce the same under pain or loss of employment status or entitlement to full employment benefits from the locking-out employer or backwages, damages and/or other positive and/or affirmative reliefs, even to criminal prosecution against the liable parties . . . (emphasis supplied). Private respondent UNION maintains that the reason they failed to immediately comply with the return-to-work order of 5 November 1990 was because they questioned the assumption of jurisdiction of respondent SECRETARY. They were of the impression that being an academic institution, the school could not be considered an industry indispensable to national interest, and that pending resolution of the issue, they were under no obligation to immediately return to work. This position of the UNION is simply flawed. Article 263 (g) of the Labor Code provides that if a strike has already taken place at the time of assumption, "all striking . . . employees shall immediately return to work." This means that by its very terms, a return-to-work order is immediately effective and executory notwithstanding the filing of a motion for reconsideration (University of Sto. Tomas v. NLRC). 9 It must be strictly complied with even during the pendency of any petition questioning its validity (Union of Filipro Employees v. Nestle Philippines, Inc., supra). After all, the assumption and/or certification order is issued in the exercise of respondent SECRETARY's compulsive power of arbitration and, until set aside, must therefore be immediately complied with. The rationale for this rule is explained in University of Sto. Tomas v. NLRC, supra, citing Philippine Air Lines Employees Association v. Philippine Air Lines, Inc., 10 thus To say that its (return-to-work order) effectivity must wait affirmance in a motion for reconsideration is not only to emasculate it but indeed to defeat its import, for by then the deadline fixed for the return to work would, in the ordinary course, have already passed and hence can no

longer be affirmed insofar as the time element is concerned. Moreover, the assumption of jurisdiction by the Secretary of Labor and Employment over labor disputes involving academic institutions was already upheld in Philippine School of Business Administration v. Noriel 11 where We ruled thus: There is no doubt that the on-going labor dispute at the school adversely affects the national interest. The school is a duly registered educational institution of higher learning with more or less 9,000 students. The on-going work stoppage at the school unduly prejudices the students and will entail great loss in terms of time, effort and money to all concerned. More important, it is not amiss to mention that the school is engaged in the promotion of the physical, intellectual and emotional well-being of the country's youth. Respondent UNION's failure to immediately comply with the return-to-work order of 5 November 1990, therefore, cannot be condoned. The respective liabilities of striking union officers and members who failed to immediately comply with the return-to-work order is outlined in Art. 264 of the Labor Code which provides that any declaration of a strike or lockout after the Secretary of Labor and Employment has assumed jurisdiction over the labor dispute is considered an illegal. act. Any worker or union officer who knowingly participates in a strike defying a return-to-work order may, consequently, "be declared to have lost his employment status." Section 6 Rule IX, of the New Rules of Procedure of the NLRC, which provides the penalties for defying a certification order of the Secretary of Labor or a return-to-work order of the Commission, also reiterates the same penalty. It specifically states that non-compliance with the aforesaid orders, which is considered an illegal act, "shall authorize the Secretary of Labor and Employment or the Commission . . . to enforce the same under pain of loss of employment status." Under the Labor Code, assumption and/or certification orders are similarly treated. Thus, we held in Sarmiento v. Tuico, supra, that by insisting on staging the restrained strike and defiantly picketing the company premises to prevent the resumption of operations, the strikers have forfeited their right to be readmitted, having abandoned their positions, and so could be validly replaced. We recently reiterated this stance in Federation of Free Workers v. Inciong, 12 wherein we cited Union of Filipro Employees v. Nestle Philippines, Inc., supra, thus

A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 264 of the Labor Code as amended . . . The union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act. Despite knowledge of the ruling in Sarmiento v. Tuico, supra, records of the case reveal that private respondent UNION opted to defy not only the return-to-work order of 5 November 1990 but also that of 9 November 1990. While they claim that after receiving copy of the Order of 9 November 1990 initiatives were immediately undertaken to fashion out a return-towork agreement with management, still, the unrebutted evidence remains that the striking union officers and members tried to return to work only eleven (11) days after the conciliation meetings ended in failure, or twenty (20) days after they received copy of the first return-to-work order on 5 November 1990. The sympathy of the Court which, as a rule, is on the side of the laboring classes (Reliance Surety & Insurance Co., Inc. v. NLRC), 13 cannot be extended to the striking union officers and members in the instant petition. There was willful disobedience not only to one but two return-to-work orders. Considering that the UNION consisted mainly of teachers, who are supposed to be well-lettered and well-informed, the Court cannot overlook the plain arrogance and pride displayed by the UNION in this labor dispute. Despite containing threats of disciplinary action against some union officers and members who actively participated in the strike, the letter dated 9 November 1990 sent by the COLLEGE enjoining the union officers and members to return to work on 12 November 1990 presented the workers an opportunity to return to work under the same terms and conditions or prior to the strike. Yet, the UNION decided to ignore the same. The COLLEGE, correspondingly, had every right to terminate the services of those who chose to disregard the return-to-work orders issued by respondent SECRETARY in order to protect the interests of its students who form part of the youth of the land. Lastly, the UNION officers and members also argue that the doctrine laid down in Sarmiento v. Tuico, supra, and Union of Filipro Employees v. Nestle, Philippines, Inc., supra, cannot be made applicable to them because in the latter two cases, workers defied the return-to-work orders for more than five (5) months. Their defiance of the return-to-work order, it is said, did not last more than a month. Again, this line of argument must be rejected. It is clear from the provisions above quoted that from the moment a worker defies a return-towork order, he is deemed to have abandoned his job. It is already in itself

knowingly participating in an illegal act. Otherwise, the worker will just simply refuse to return to his work and cause a standstill in the company operations while retaining the positions they refuse to discharge or allow the management to fill (Sarmiento v. Tuico, supra).Suffice it to say, in Federation of Free Workers v. Inciong, supra, the workers were terminated from work after defying the return-to-work order for only nine (9) days. It is indeed inconceivable that an employee, despite a return-towork order, will be allowed in the interim to stand akimbo and wait until five (5) orders shall have been issued for their return before they report back to work. This is absurd. In fine, respondent SECRETARY gravely abused his discretion when he ordered the reinstatement of striking union members who refused to report back to work after he issued two (2) return-to-work orders, which in itself is knowingly participating in an illegal act. The Order in question is, certainly, contrary to existing law and jurisprudence. WHEREFORE, the Petition for Certiorari is hereby GRANTED. The Order of 12 April 1991 and the Resolution 31 May 1991 both issued by respondent Secretary of Labor and Employment are SET ASIDE insofar as they order the reinstatement of striking union members terminated by petitioner, and the temporary restraining order We issued on June 26, 1991, is made permanent. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 120751 March 17, 1999 PHIMCO INDUSTRIES, INC., petitioner, vs. HONORABLE ACTING SECRETARY OF LABOR JOSE BRILLANTES and PHIMCO INDUSTRIES LABOR ASSOCIATION, respondents.

WHEREFORE, ABOVE PREMISES CONSIDERED, and pursuant to Article 263 (g) of the Labor Code, as amended, this office hereby assumes jurisdiction over the dispute at, Phimco industries, Inc. Accordingly, all the striking workers, except those who have been handed down termination papers on June 26, 1995, are hereby directed to return to work with twenty-four (24) hours from receipt of this Order and for the Company to accept them back under the same terms and conditions prevailing prior to the strike. The parties are further ordered to cease and desist from committing any act that will aggravate the situation. To expedite the resolution of this dispute, the parties are directed to submit their position papers and evidence within ten (10) days from receipt of this Order. SO ORDERED. 4 On July 12, 1995, petitioner brought the present petition; theorizing, that: I THE HONORABLE ACTING SECRETARY JOSE BRILLANTES ACTED WITH THE GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF EXCESS OF JURISDICTION IN ISSUING THE ASSAILED ORDER. II THE HONORABLE ACTING SECRETARY JOSE BRILLANTES ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN HE WENT BEYOND THE BASIS FOR ASSUMPTION OF JURISDICTION UNDER ART. 263 OF THE LABOR CODE. 5 On July 31, 1995, two weeks after the filing of the Petition, the public respondent issued another Order 6temporarily holding in abeyance the implementation of the questioned Order dated July 7, 1995 for a period of thirty (30) day; directing, as follows: WHEREFORE PREMISES CONSIDERED, the implementation of our Order dated 7 July 1995 hereby temporarily held in abeyance for a period of thirty (30) days effective from receipt thereof pending the private negotiations of the parties for the settlement of their labor dispute. Thereafter, both the Union and the Company are directed to submit to this Office the result of their negotiations for our evaluation and appropriate action.

PURISIMA, J.: At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court, seeking to set aside the July 7, 1995 Order 1 of the then Acting Secretary Jose Brillantes of the Department of Labor and Employment, in NCMB-NCR-NS-03-122-95, on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. The antecedent facts are, as follows: On March 9, 1995, the private respondent, Phimco Industries Labor Association (PILA), duly certified collective bargaining representative of the daily paid workers of the petitioner, Phimco Industries Inc. (PHIMCO), filed a notice of strike with the National Conciliation and Mediation Board, NCR, against PHIMCO, a corporation engaged in the production of matches, after a deadlock in the collective bargaining and negotiation. On April 21, 1995, when the several conciliation conferences called by the contending parties failed to resolve their differences PILA, composed of 352 2 members, staged a strike. On June 7, 1995, PILA presented a petition for the intervention of the Secretary of Labor in the resolution of the labor dispute, to which petition PHIMCO opposed. Pending resolution of the said petition or on June 26, 1995, to be precise, PHIMCO sent notice of termination to some 47 3 workers including several union officers. On July 7, 1995, the then Acting Secretary of Labor Jose Brillantes assumed jurisdiction over the labor dispute and issued his Order ruling, thus:

SO ORDERED.

The pivotal issue here is: whether or not the public respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction in assuming jurisdiction over subject labor dispute. The petition is impressed with merit. Art. 263, paragraph (g) of the Labor Code, provides: (g) When, in his opinion, there exist 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 . . . The Labor Code vests in the Secretary of Labor the discretion to determine what industries are indispensable to the national interest. Accordingly, upon the determination by the Secretary of Labor that such industry is indispensable to the national interest, he will assume jurisdiction over the labor dispute in the said industry. 8 This power, however, is not without any limitation. In upholding the constitutionality of B.P. 130 insofar as it amends Article 264 (g) 9 of the Labor Code, it stressed in the case of Free telephone Workers Union vs. Honorable Minister of Labor and Employment, et al., 10 the limitation set by the legislature on the power of the Secretary of Labor to assume jurisdiction over a labor dispute, thus: Batas Pambansa Blg. 130 cannot be any clearer, the coverage being limited to "strikes or lockouts adversely affecting the national interest. 11 In this case at bar, however, the very admission by the public respondent draws the labor dispute in question out of the ambit of the Secretary's prerogative, to wit. While the case at bar appears on its face not to fall within the strict categorization of cases imbued with "national interest", this office believes that the obtaining circumstances warrant the exercise of the powers under Article 263 (g) of the Labor Code, as amended. 12 The private respondent did not even make any effort to touch on the indispensability of the match factory to the national interest. It must have been aware that a match factory, though of value, can scarcely be considered as an industry "indispensable to the national interest" as it cannot be in the same category as "generation and distribution of energy, or those undertaken by banks, hospitals, and export-oriented industries." 13 Yet, the public respondent assumed jurisdiction thereover, ratiocinating as follows:

For one, the prolonged work disruption has adversely affected not only the protagonists, i.e., the workers and the Company, but also those directly and indirectly dependent upon the unhampered and continued operations of the Company for their means of livelihood and existence. In addition, the entire community where the plant is situated has also been placed in jeopardy. If the dispute at the Company remains unabated, possible loss of employment, not to mention consequent social problems, might result thereby compounding the unemployment problem of the country. Thus we cannot be unmindful of the possible dire consequences that might ensue if the present dispute is allowed to remain unresolved, particularly when alternative dispute resolution mechanism obtains to dispose of the differences between the parties herein. 14 It is thus evident from the foregoing that the Secretary's assumption of jurisdiction grounded on the alleged "obtaining circumstances" and not on a determination that the industry involved in the labor dispute is one indispensable to the "national interest", the standard set by the legislature, constitutes grave abuse of discretion amounting to lack of or excess of jurisdiction. To uphold the action of the public respondent under the premises would be stretching too far the power of the Secretary of Labor as every case of a strike or lockout where there are inconveniences in the community, or work disruptions in an industry though not indispensable to the national interest, would then come within the Secretary's power. It would be practically allowing the Secretary of Labor to intervene in any Labor dispute at his pleasure. This is precisely why the law sets and defines the standard: even in the exercise of his power of compulsory arbitration under Article 263 (g) of the Labor Code, the Secretary must follow the law. For "when an overzealous official by-passes the law on the pretext of retaining a laudable objective, the intendment or purpose of the law will lose its meaning as the law itself is disregarded" 15 In light of the foregoing, we hold that the public respondent gravely abused his discretion in assuming jurisdiction over the labor dispute sued upon in the case. WHEREFORE, the petition is hereby GRANTED; and the assailed Order, dated July 7, 1995, of the Acting Secretary of Labor SET ASIDE. No pronouncement as to costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 120505 March 25, 1999 ASSOCIATION OF INDEPENDENT UNIONS IN THE PHILIPPINES (AIUP), JOEL DENSING, HENEDINO MIRAFUENTES, CHRISTOPHER PATENTES, AND ANDRES TEJANA, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION (NLRC), CENAPRO CHEMICAL CORPORATION and/or GO SING CHAN in his capacity as Managing Director, respondents. PURISMA, J.: The Petition for review on Certiorari at bar seeks to reinstate the Decision 1 of the Labor Arbiter insofar as it ordered the reinstatement and payment of backwages of the four petitioners herein. The said decision was affirmed 2 in toto by the NLRC. On February 21, 1995, however, upon motion for reconsideration of the respondent company, the NLRC came out with a Resolution 3 modifying its decision, by deleting therefrom the award of backwages, ordering payment of separation pay in lieu of reinstatement, and declaring the loss of employment status of petitioner Joel Densing. The antecedent facts are as follows: Joel Densing, Henedino Mirafuentes, Christopher Patentes, and Andres Tejana, the petitioners herein, were casual employees of respondent CENAPRO Chemicals Corporation. In the said company, the collective bargaining representative of all rank and file employees was CENAPRO Employees Association (CCEA), with which respondent company had a collective bargaining agreement (CBA). Their CBA excluded casual employees from membership in the incumbent union. The casual employees who have rendered at least one to six years of service sought regularization of their employment. When their demand was denied, they formed themselves into an organization and affiliated with the Association of Independent unions in the Philippines (AIUP). Thereafter, AIUP filed a petition for certification election, which petition was opposed by the respondent company. The CCEA anchored its opposition on the contract bar rule. On May 4 and July 3 1990, the union filed a notice of strike, minutes of strike vote, and the needed documentation, with the Department of Labor

and Employment. The notice of strike cited as grounds therefor the acts of respondent company constituting unfair labor practice, more specifically coercion of employees and systematic union busting. On July 23, 1992, the union proceeded to stage a strike, in the course of which, the union perpetrated illegal acts. The strikers padlocked the gate of the company. The areas fronting the gate of the company were barricaded and blocked by union strikers. The strikers also prevented and coerced other non-striking employees from reporting for work. Because of such illegal activities, the respondent company filed a petition for injunction with the NLRC, which granted a Temporary Restraining Order (TRO), enjoining the strikers from doing further acts of violence, coercion, or intimidation and from blocking fee ingress and egress to the company premises. Subsequently, or on July 25, 1990, to be precise, the respondent company filed a complaint for illegal strike. The day before, July 24, 1990, petitioners filed a complaint for unfair labor practice and illegal lockout against the respondent company. In a consolidated Decision, dated September 10, 1993, the Labor Arbiter declares illegal the strike staged by the petitioners, and dismissed the charge of illegal lockout and unfair labor practice. The dispositive portion of the Labor Arbiter's decision was to the following effect: WHEREFORE, premises considered, judgment is hereby rendered finding the strike illegal and as a consequence thereto, the officers who participated in the illegal strike namely: Oscar Enicio, Jaime dela Piedra, Lino Isidro, Ariel Jorda, and Jose Catnubay are declared to have lost their employment status. CENAPRO is directed however to reinstate the other workers, except Ireneo Sagaral, Artemio Guinto, Ruben Tulod, Marcelo M. Matura, Gilbert Holdilla, Cesar Buntol, Rey Siarot, Lucio Nuneza, Jose Basco, Gervacio Baldespinosa, Jr., Cresecente Buntol, Dennis Pepito, Florencio Pepito, Edwin Ramayrat, Daniel Canete, and Vivencio Sinadjan who executed quitclaims in favor of CENAPRO and cenapro is being absolved from the charges of illegal lockout and unfair labor practice. SO ORDERED.
4

In short, five (5) union officers were declared to have lost their employment status, fifteen (15) union members were not reinstated because they executed quit claims in favor of the respondent company, and six (6) workers, Rosalito Bantulan, Edward Regner, Joel Densing, Henedino Mirafuentes, Christopher Patentes, and Andres Tejana, ordered to be reinstated.

On October 8, 1993, the Labor Arbiter issued an Order excluding Rosalito Bantulan and Edward Regner from the list of those to be reinstated and to be paid backwages. The remaining four (4) workers, Joel Densing, Henedino Mirafuentes, Christopher Patentes, and Andres Tejana, are the petitioners here. On October 5, 1993, the respondent company appealed the aforesaid decision insofar as it ordered the reinstatement of some of the strikers. On October 7, 1993, the petitioners also appealed the same decision of the Labor Arbiter. Pending resolution of the said appeals, petitioner AUIP filed with the Labor Arbiter a Motion for Execution of the Labor Arbiter's Decision directing reinstatement of some of its members. The motion was granted in the Order dated October 15, 1993. On December 7, 1993, respondent company presented Manifestation/Motion praying that instead of reinstatement. it be allowed to pay separation pay petitioners. On December 16, 1993, petitioners presented a motion for payroll reinstatement, which motion was opposed by the respondent company, alleging mainly that the circumstances of the case have strained the relationship of the parties herein, rendering their reinstatement unwise and inappropriate. But such opposition was overruled by the Labor Arbiter. In his Order of March 23, 1994, the same Labor Arbiter issued a second writ of execution directing actual, if not payroll reinstatement of the strikers. On April 6, 1994, respondent company appealed the second order for the reinstatement of the strikers, placing reliance on the same grounds raised in support of its first appeal. In its Decision dated August 15, 1994, the NLRC affirmed in toto the Labor Arbiter's decision, dismissed both the appeal of private respondent and that of petitioners, and reiterated the Labor Arbiter's Order for the reinstatement of the herein petitioners, Joel Densing, Henedino Mirafuentes, Christopher Patentes, and Andres Tejana. The said decision disposed and directed as follows: WHEREFORE, premises considered, these appeals are DISMISSED, and the decision of the Labor Arbiter is AFFIRMED in its entirety. Appellant Cenapro Chemical Corporation is hereby ordered to immediately comply with the Labor Arbiter's Order dated March 23, 1994 and to release the salaries of four

(4) appellant-workers namely Joel Densing, Henedino Mirafuentes, Christopher Patentes, and Andres Tejana from October 15, 1993 and continue paying them up to the time this decision has become final and executory, less earning earned elsewhere. SO ORDERED. 5 Respondent company moved for reconsideration of that portion of the NLRC's decision ordering the reinstatement of the said strikers. Acting thereupon, the NLRC modified its Decision of August 15, 1994, by ordering the payment of separation pay in lieu of the reinstatement of the petitioners, deleting the award of backwages, and declaring the loss of employment status of Joel Densing. The dispositive portion of the Amendatory Resolution, ruled thus: WHEREFORE, the decision of the Commission promulgated on August 15, 1994 is hereby MODIFIED. In view of reinstatement to complainants Henedino Mirafuentes, Christopher Patentes, and Andres Tejana, appellantmovant CENAPRO Chemicals corporation is directed to pay them amount equivalent to one (1) month pay for every year of service and without backwages. As regards Joel Densing, he is declared to have lost his employment status. SO ORDERED.
6

Hence, the present petition, theorizing that respondent NLRC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in: 1) Entertaining the 6 April 1994 (the first appeal dated 5 October 1993) which was based on similar grounds. 2) Reversing its earlier Resolution of the first appeal promulgated 15 August 1994 by way of another contradictory and baseless ruling promulgated on 21 February 1995. 3) Depriving Henedino Mirafuentes, Christopher Patentes, and Andres Tejana of their right to reinstatement and backwages; and 4) Depriving Joel Densing of his right to reinstatement or separation pay with backwages. It is decisively clear that although the grounds invoked in the two appeals were the same, the said appeals were the same, the said appeals were

separate and distinct remedies. Filed on October 5, 1993, the first appeal was from the decision of Labor Arbiter Nicasio Aninon, dated September 10, 1993, seeking loss of employment status of all the union members who participated in the illegal strike. The second appeal, dated April 6, 1994, was, in effect, an opposition to the second writ of execution issued on March 23, 1994. The second writ pertained to the order to effect immediate actual or payroll reinstatement of the four petitioners herein. The said appeals were acted upon separately by the NLRC, which did not act with grave abuse of discretion in entertaining such appeals. When they filed the notice of strike, petitioners cited as their grounds therefor unfair labor practice, specifically coercion of employees and systematic union busting. But the said grounds wee adjudged as baseless by the Labor Arbiter. The court quotes with approval the following findings of Labor Arbiter Aninon, to wit: . . . In fact, in the undated Joint Affidavit of Oscar Enecio, Edgardo Regner, Christopher Patentes, Edgar Sanchez, Ariel Jorda, Jaime dela Piedra, the workers stated that what they considered as harassments and insults are those when they were scolded for little mistakes and memoranda for tardiness. These acts, if really committed cannot be considered as harassment and insults but were ordinary acts which employers have to do as part of their administrative supervision over their employees. Moreover, Oscar Enecio's testimony that some of his fellow union members like vice-president Jaime dela Piedra, Christopher Patentes and Henodino Mirafuentes, were also harass when they were made to work another eight (8) hours after their tour of duty deserves scant consideration not only because it is uncorroborated but he could not even give the dates when these workers were made to work for sixteen (16) hours, how many instances these happened and whether or not the workers have actually worked. 7 The court discerns no basis for altering the aforesaid findings which have been affirmed by the NLRC. The court is not persuaded by petitioners' allegation of union busting. The NLRC correctly ruled that the strike staged by petitioners was in the nature of a union-recognition-strike. A union-recognition-strike, as its legal designation implies, is calculated to compel the employer to recognize one's union, and not the other contending group, as the employees' bargaining representative to work out a collective bargaining agreement despite the striking union's doubtful majority status to merit voluntary recognition and lack of formal certification as the exclusive representative in the bargaining unit. It is undisputed that at the time the petition for certification election was filed by AUIP, petitioner union, there was an existing CBA between the respondent company and CCEA, the incumbent bargaining representative of all rank and file employees. The petition

should have not been entertained because of the contract bar rule. When a collective bargaining agreement has been duly registered in accordance with Article 231 of the Labor Code, a petition for certification election or motion for intervention may be entertained only within sixty (60) days prior to the expiry date of the said agreement. 8 Outside the said period, as in the present case, the petition for certification election or motion for intervention cannot be allowed. Hence, the conclusion that the respondent company did not commit the alleged union busting. From the gamut of evidence on hand, it can be gathered that the strike staged by the petitioner union was illegal for reasons, that: 1) The strikers committed illegal acts in the course of the strike. They formed human barricades to block the road, prevented the passage of the respondent company's truck, padlocked the company's gate, and prevented co-workers from entering the company premises. 9 2) And violated the Temporary Restraining Order (TRO) 10 enjoining the union and/or its members from obstructing the company premises, and ordering the removal therefrom of all the barricades. A strike is a legitimate weapon in the universal struggle for existence. 11 It is considered as the most effective weapon in protecting the rights of the employees to improve the terms and conditions of their employment. 12 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. Among such limits are the prohibited activities under Article 264 of the Labor Code, particularly paragraph (e), which states that no person engaged in picketing shall: a) commit any act of violence, coercion, or intimidation or b) obstruct the free ingress to or egress from the employer's premises for lawful purposes or c) obstruct public thoroughfares. Even if the strike is valid because its objective or purpose is lawful, the strike may still be declared invalid where the means employed are illegal. For instance, the strike was considered illegal as the "strikers formed a human cordon along the side of the Sta. Ana wharf and blocked all the ways and approaches to the launches and vessels of Petitioners". 13 It follows therefore that the dismissal of the officers of the striking union was justified and valid. Their dismissal as a consequence of the illegality of the strike staged by them finds support in Article 264 (a) of the Labor Code, pertinent portion of which provides: " . . Any union officer who

knowingly participates in an illegal strike and any . . union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. . ." 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 a just penalty or sanction for their unlawful acts. The officers' responsibility is greater than that of the members. 14 The court finds merit in the finding by the Labor Arbiter and the NLRC that the respondent company committed no illegal lockout. Lockout means temporary refusal of the employer to furnish work as a result of an industrial or labor dispute. 15 As observed by the Labor Arbiter, it was the appellant-workers who voluntarily stopped working because of their strike. In fact the appellant workers admitted that non-striking workers who wanted to return to work were allowed to do so. Their being without work could not therefore be attributed to the employer's refusal to give them work but rather, to the voluntary withdrawal of their services in order to compel the company to recognize their union. 16 The next aspect of the case to consider is the fate of the four petitioners herein. Decisive on the matter is the pertinent provision of Article 264 (a) of the Labor Code that: ". . any worker . . who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. . ." It can be gleaned unerringly from the aforecited provision of law in point, however, that an ordinary striking employee can not be terminated for mere participation in an illegal strike. There must be proof that he committed illegal acts during the strike 17 and the striker who participated in the commission of illegal act must be identified. But proof beyond reasonable doubt is not required. Substantial evidence available under the attendant circumstances, which may justify the imposition of the penalty of dismissal, may suffice. In the landmark case of Ang Tibay vs. CIR, 18 the court ruled "Not only must there be some evidence to support a finding or conclusion, but the evidence must be "substantial". Substantial evidence is more than a mere scintilla. It means such relevant evidence that a reasonable mind might accept as sufficient to support a conclusion." Respondent company contends that sufficient testimonial, documentary and real evidence, including the photographs supposedly taken by a certain Mr. Ponce, were presented at the arbitration level. It is argued that the said pictures best show the participation of the strikers in the commission of illegal acts in the course of the strike. In connection therewith, it is worthy to point out the sole basis of the NLRC for declaring the loss of employment status of petitioner Joel Densing, to wit:

ATTY. PINTOR: Q: Now, Mr. Ponce, on page 1 of your affidavit, paragraph 4 thereof, you alleged that: "While in the gate, I saw several strikers of Cenapro blocked its gate and prevented the truck from proceeding to its destination." Who were these several workers you referred to, in this affidavit of yours? WITNESS: A. The strikers. HON. LABOR ARBITER: Q. Are you referring to the complainants in this case who are now present? WITNESS: A. Yes sir, I am referring to AIU members. HON, LABOR ARBITER: Make it of record that the witness is referring to the five persons inside the court namely: Rosalito Bentulan, Ariel Jorda, Ranulfo Cabrestante, Jose Catnubay and Joel Densing. 19 (emphasis supplied) All things studiedly considered, the court is not convinced that the quantum of proof on record hurdled the substantiality of evidence test 20 to support a decision, a basic requirement in administrative adjudication. If the said pictures exhibited before the Labor Arbiter portrayed the herein petitioners performing prohibited acts during the strike, why were these pictures not exhibited for identification of petitioners? Petitioners could have been identified in such pictures, if they were reflected therein, in the same manner that the lawyer who examined Mr. Ponce, asked witness Armamento to identify the Sheriff Mr. Leahmon Tolo, thus: ATTY. PINTOR: Q I refer your attention Mr. Armamento to Exhibit "16". There is a person here wearing a short sleeve barong tagalog. Can

you please tell the Honorable office if you will be able to identify this person? WITNESS: A Yes, this is the Sheriff Mr. Leahmon Tolo. 21 The identification of the alleged pictures of the strikers, if properly made, could have been categorized as substantial evidence, which a reasonable mind may accept as adequate to support a conclusion that Joel Densing participated in blocking the gate of respondent company. Verily, the uncorroborated testimony of Mr. Ponce does not suffice to support a declaration of loss of employment status of Joel Densing. This could be the reason why the Labor Arbiter and the NLRC, in its decision dated August 15, 1994, upheld the reinstatement of Joel Densing. The contention of petitioners that the factual findings by the Labor Arbiter, as trial officer in the case, deserve much weight is tenable. The NLRC is bound by the factual findings of the Labor Arbiter as the latter was in a better position to observe the demeanor and department of the witnesses. "Absent any substantial proof that the trial court's decision was based on speculation, the same must be accorded full consideration and should not be disturbed on appeal. 22 Premises studiedly considered, we are of the ineluctable conclusion, and hold, that the NLRC gravely abused its discretion in declaring the loss of employment status of Joel Densing. As regards the other petitioners, Henedino Mirafuentes, Christopher Patentes, and Andres Tejana, their reinstatement is warranted. In its resolution, the NLRC adjudged petitioners as "not entirely faultless" in light of the following revelation of Mr. Ponce, to wit: ATTY. PINTOR: Q. Mr. Ponce, I will refer you to a picture previously marked as our Annex "H". Showing to you the said picture. In said picture, there are persons who are lying on the road. Can you please identify who are these persons? WITNESS: A. They are the strikers.

ATTY. PINTOR: Q. Are you referring to the AIU strikers the complainants in this case? WITNESS: A. Yes. Sir.
23

For the severest administrative penalty of dismissal to attach, the erring strikers must be duly identified. Simply referring to them as "strikers", "AIU strikers" "complainants in this case" is not enough to justify their dismissal. On the issue of reinstatement and payment of salaries, the court also find for petitioners. Telling on the monetary award is Article 223 of the Labor Code, the pertinent of which reads: . . . In any event, the decision of the labor arbiter reinstating a dismissed employee shall be immediately executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of bond shall not stay the execution of the reinstatement provided therein. . . . The NLRC Resolution of February 21, 1995 does not state any plausible ground or basis for deleting the award for backwages. The mere fact that the petitioners were "not entirely faultless" is of no moment. Such finding below does not adversely affect their entitlement to backwages. As opined by the NLRC in its Decision of August 15, 1994, affirming in its entirety the conclusion arrived at by the Labor Arbiter "the only option left to the appellant-company is whether to physically reinstate appellant workers or to reinstate them on the payroll." The unmeritorious appeal interposed by the respondent company, let alone the failure to execute with dispatch the award of reinstatement delayed the payroll reinstatement of petitioners. But their long waiting is not completely in vain, for the court holds that their (petitioners') salaries and backwages must be computed from October 15, 1993 until full payment of their separation pay, without any deduction. This is in consonance with the ruling in the case of Bustamante vs. NLRC, 24 where payment of full backwages without deductions was ordered. The four petitioners herein are entitled to reinstatement absent any just ground their dismissal. Considering, however, that more than eight (8) years have passed since subject strike was staged, an award of separation pay equivalent to one (1) month pay for every year of service, in lieu of

reinstatement, is deemed more practical and appropriate to all the parties concerned. WHEREFORE, the petition is GRANTED; the Resolution of NLRC, dated February 21, 1995, is SET ASIDE, and the Decision of the Labor Arbiter of October 8, 1993 REINSTATED, with the modification that the petitioners, Joel Densing, Henedino Mirafuentes, Christopher Patentes, and Andres Tejana, be paid full backwages computed from October 15, 1993 until full payment of their separation pay. The payment of separation pay in lieu of reinstatement, is hereby authorized. No pronouncement as to costs. SO ORDERED.