Ruling:
ALEX Q. NARANJO V. BIOMEDICA HEALTH CARE
GR NO. 193789, 2012-09-19
Facts:
1. Respondent Biomedica Health Care, Inc. (Biomedica) was engaged
in the distribution of medical equipment. Respondent Carina
"Karen" J. Motol (Motol) was then its President.
2. Petitioners were former employees of Biomedica. Petitioners with
two (2) other employees, Alberto Angeles (Angeles) and Rodolfo
Casimiro (Casimiro) were all absent for various personal reasons.
Notably, these are the same employees who filed a letter-complaint
against Biomedica for lack of salary increases, failure to remit Social
Security System and Pag-IBIG contributions, and violation of the
minimum wage law, among other grievances. Per available records,
the complaint has not been acted upon.
3. Later that day, petitioners reported for work after receiving text
messages for them to proceed to Biomedica. They were, however,
refused entry and told to start looking for another workplace.
4. Biomedica issued a notice of preventive suspension and notices to
explain within 24 hours. In the Notices, Biomedica accused the
petitioners of having conducted an illegal strike and were
accordingly directed to explain why they should not be held guilty of
and dismissed for violating the company policy against illegal strikes.
5. Petitioners filed a complaint with the NLRC for constructive
dismissal and nonpayment of salaries, overtime, 13th month pay as
well as non-remittance of SSS, Pag-IBIG and Philhealth contributions
as well as loan payments.
6. Thereafter, Biomedica served Notices of Termination on
petitioners
7. The Labor Arbiter found that, indeed, petitioners engaged in a
mass leave akin to a strike. He added that, assuming that petitioners
were not aware of the company policies on illegal strikes, such mass
leave can sufficiently be deemed as serious misconduct under Art.
282 of the Labor Code. Thus, the Labor Arbiter concluded that
petitioners were validly dismissed.
8. Petitioners filed a Complaint with the NLRC for constructive
dismissal and nonpayment of salaries, overtime pay, 13th month pay
as well as non-remittance of SSS, Pag-IBIG and Philhealth
contributions as well as loan payments.
The NLRC found and so declared petitioners to have been illegally
dismissed
9. From the Decision and Resolution of the NLRC, Biomedica
appealed the case to the CA. The appellate court reinstated the
decision of LA
Issues:
(1) Whether or not CA gravely erred in ruling that grave abuse of
discretion was committed by the NLRC and by reason of the same, it
upheld the Decision of the Labor Arbiter stating that petitioners
were not illegally dismissed.
(2) Whether or not CA gravely erred in ruling that grave abuse of
discretion was committed by the NLRC and by reason of the same, it
upheld the Decision of the Labor Arbiter in relation to petitioners
money claims.
This petition is meritorious.
PETITIONERS WERE ILLEGALLY DISMISSED
1. ”It bears pointing out that in the dismissal of an employee, the
law requires that due process be observed. Such due process
requirement is two-fold, procedural and substantive, that is, "the
termination of employment must be based on a just or authorized
cause of dismissal and the dismissal must be effected after due
notice and hearing."
In the instant case, petitioners were not afforded both procedural
and substantive due process.
Petitioners were not afforded procedural due process
2. Rule XIII, Book V, Sec. 2 I (a) of the Implementing Rules and
Regulations of the Labor Code states:
SEC. 2. Standards of due process; requirements of notice. In all cases
of termination of employment, the following standards of due
process shall be substantially observed:
I. For termination of employment based on just causes as defined in
Article 282 of the Code:
(a) A written notice served on the employee specifying the ground
or grounds for termination, and giving said employee reasonable
opportunity within which to explain his side.
(b) A hearing or conference during which the employee concerned,
with the assistance of counsel if he so desires is given opportunity to
respond to the charge, present his evidence, or rebut the evidence
presented against him.
(c) A written notice of termination served on the employee,
indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination. (Emphasis
supplied.)
Thus, the Court elaborated in King of Kings Transport, Inc. v. Mamac
that a mere general description of the charges against an
employee by the employer is insufficient to comply with the above
provisions of the law:... x x x Moreover, in order to enable the
employees to intelligently prepare their explanation and defenses,
the notice should contain a detailed narration of the facts and
circumstances that will serve as basis for the charge against the
employees. A general description of the charge will not suffice.
Lastly, the notice should specifically mention which company rules, if
any, are violated and/or which among the grounds under Art. 282 is
being charged against the employees.
We observe from the irregularity reports against respondent for his
other offenses that such contained merely a general description of
the charges against him. The reports did not even state a company
rule or policy that the employee had allegedly violated.
3. Petitioners were charged with conducting an illegal strike, not a
mass leave, without specifying the exact acts that the company
considers as constituting an illegal strike or violative of company
policies. Such allegation falls short of the requirement in King of
Kings Transport, Inc. of "a detailed narration of the facts and
circumstances that will serve as basis for the charge against the
employees." A bare mention of an "illegal strike" will not suffice.
4. Further, while Biomedica cites the provisions of the company
policy which petitioners purportedly violated, it failed to quote
said provisions in the notice so petitioners can be adequately
informed of the nature of the charges against them and
intelligently file their explanation and defenses to said accusations.
The notice is bare of such description of the company policies.
Moreover, it is incumbent upon respondent company to show that
petitioners were duly informed of said company policies at the time
of their employment and were given copies of these policies. No
such proof was presented by respondents.
5. Moreover, the period of 24 hours allotted to petitioners to
answer the notice was severely insufficient and in violation of the
implementing rules of the Labor Code. Under the implementing
rule of Art. 277, an employee should be given "reasonable
opportunity" to file a response to the notice.
King of Kings Transport, Inc. elucidates in this wise:
To clarify, the following should be considered in terminating the
services of employees:
(1) The first written notice to be served on the employees should
contain the specific causes or grounds for termination against them,
and a directive that the employees are given the opportunity to
submit their written explanation within a reasonable period.
"Reasonable opportunity" under the Omnibus Rules means every
kind of assistance that management must accord to the employees
to enable them to prepare adequately for their defense. This should
be construed as a period of at least five (5) calendar days from
receipt of the notice to give the employees an opportunity to study
the accusation against them, consult a union official or lawyer,
gather data and evidence, and decide on the defenses they will raise
against the complaint.[30] (Emphasis supplied.)... n addition,
Biomedica did not set the charges against petitioners for hearing or
conference in accordance with Sec. 2, Book V, Rule XIII of the
Implementing Rules and Regulations of the Labor Code and in line
with ruling in King of Kings Transport, Inc.
PETITIONERS WERE DENIED SUBSTANTIVE DUE PROCESS
Clearly, to justify the dismissal of an employee on the ground of
serious misconduct, the employer must first establish that the
employee is guilty of improper conduct, that the employee violated
an existing and valid company rule or regulation, or that the
employee is guilty of a wrongdoing. In the instant case, Biomedica
failed to even establish that petitioners indeed violated company
rules, failing to even present a copy of the rules and to prove that
petitioners were made aware of such regulations.
PETITIONERS DID NOT STAGE A MASS LEAVE
It is undeniable that going on leave or absenting one's self from
work for personal reasons when they have leave benefits available
is an employee's right.
In the factual milieu at bar, Biomedica did not submit a copy of the
CBA or a company memorandum or circular showing the authorized
sick or vacation leaves which petitioners can avail of. Neither is
there any document to show the procedure by which such leaves
can be enjoyed. Absent such pertinent documentary evidence, the
Court can only conclude that the availment of petitioners of their
respective leaves on November 7, 2006 was authorized, valid and in
accordance with the company or CBA rules on entitlement to and
availment of such leaves. The contention of Biomedica that the
enjoyment of said leaves is in reality an illegal strike does not hold
water in the absence of strong controverting proof to overturn the
presumption that "a person is innocent of x x x wrong."
Thus, the individual leaves of absence taken by the petitioners are
not such absences that can be regarded as an illegal mass action.
Moreover, a mass leave involves a large number of people or in
this case, workers.
PETITIONERS DID NOT GO ON STRIKE
Biomedica has failed to adduce substantial evidence to prove that
petitioners' dismissal from their employment was for a just or
authorized cause. The conclusion is inescapable that petitioners
were illegally dismissed.
Dismissal is not the proper penalty
"An ordinary striking worker cannot be terminated for mere
participation in an illegal strike. There must be proof that he
committed illegal acts during a strike."
WHEREFORE, the Decision dated June 25, 2010 and the Resolution
dated September 20, 2010 of the CA in CA-G.R. SP No. 108205 are
hereby REVERSED and SET ASIDE
Principles:
1. Art. 212(o) of the Labor Code defines a strike as "any temporary
stoppage of work by the concerted action of employees as a result
of any industrial or labor dispute."
"CONCERTED" is defined as "mutually contrived or planned" or
"performed in unison." In the case at bar, the 5 petitioners went on
leave for various reasons. Petitioners were in different places on
November 7, 2006 to attend to their personal needs or affairs. They
did not go to the company premises to petition Biomedica for their
grievance. To demonstrate their good faith in availing their leaves,
petitions reported for work and were at the company premises in
the afternoon after they received text messages asking them to do
so. This shows that there was NO intent to go on strike.
Unfortunately, they were barred from entering the premises and
were told to look for new jobs. Surely the absence of petitioners in
the morning of November 7, 2006 cannot in any way be construed
as a concerted action, as their absences are presumed to be for valid
causes, in good faith, and in the exercise of their right to avail
themselves of CBA or company benefits.
Moreover, Biomedica did not prove that the individual absences can
be considered as "temporary stoppage of work." Biomedica's
allegation that the mass leave "paralyzed the company operation on
that day" has remained unproved. It is erroneous, therefore, to liken
the alleged mass leave to an illegal strike much less to terminate
petitioners'services for it.
2. Under the doctrine of strained relations, the payment of
separation pay is considered an acceptable alternative to
reinstatement when the latter option is no longer desirable or
viable. On one hand, such payment liberates the employee from
what could be a highly oppressive work environment. On the other
hand, it releases the employer from the grossly unpalatable
obligation of maintaining in its employ a worker it could no longer
trust.
3. STRAINED RELATIONS must be demonstrated as a fact, however,
to be adequately supported by evidence substantial evidence to
show that the relationship between the employer and the employee
is indeed strained as a necessary consequence of the judicial
controversy.
 INTERPHIL LABORATORIES EMPLOYEES UNION-FFW V. INTERPHIL
LABORATORIES
GR NO. 142824, 2001-12-19
Facts:
1. Interphil Laboratories Employees Union-FFW is the sole and
exclusive bargaining agent of the rank-and-file employees of
Interphil Laboratories, Inc., a company engaged in the business of
manufacturing and packaging pharmaceutical products.
They had a Collective Bargaining Agreement (CBA) effective from
01 August 1990 to 31 July 1993.
2. Ocampo requested for a meeting to discuss the duration and
effectivity of the CBA. The respondent acceded and a meeting was
held on 15 April 1993 where the union officers asked whether the
company would be amenable to make the new CBA effective for two
(2) years, starting 01 August 1993.
3. Salazar (company officer), however, declared that it would still be
premature to discuss the matter and that the company could not
make a decision at the moment.
4. The very next day the employees stopped working and left their
workplace without sealing the containers and securing the raw
materials they were working on and refusal to follow their normal
work schedule
5. When Salazar inquired about the reason for their refusal to follow
their normal work schedule, the employees told him to "ask the
union officers.”
6. In the meeting, Enrico Gonzales, a union director, told Salazar that
the employees would only return to their normal work schedule if
the company would agree to their demands as to the effectivity and
duration of the new CBA. Salazar again told the union officers that
the matter could be better discussed during the formal
renegotiations of the CBA.
Union was apparently unsatisfied with the answer of the company,
the overtime boycott continued.
7. Thereafter petitioner union submitted with respondent company
its CBA proposal, and the latter filed its counter-proposal.
8. Meanwhile respondent company filed with the National Labor
Relations Commission (NLRC) a petition to declare illegal petitioner
union's "overtime boycott" and "work slowdown" which,
according to respondent company, amounted to illegal strike
9 .Respondent company filed with the National Conciliation and
Mediation Board (NCMB) an urgent request for preventive
mediation aimed to help the parties in their CBA negotiations
respondent company filed with Office of the Secretary of Labor and
Employment a petition for assumption of jurisdiction.
10. Petitioner union filed with the NCMB a Notice of Strike citing
unfair labor practice allegedly committed by respondent company
11. Labor Arbiter submitted his recommendation to the then
Secretary of Labor Leonardo A. Quisumbing. Then Secretary
Quisumbing approved and adopted the report in his Order
HEREFORE, finding the said Report of Labor Arbiter Manuel R. Caday
to be supported by substantial evidence, this Office hereby
RESOLVES to APPROVE and ADOPT the same as the decision in this
case, and judgment is hereby rendered:
(1) Declaring the overtime boycott' andwork slowdown' as illegal
strike;
(2) Declaring the respondent union officers who spearheaded and
led the overtime boycott and work slowdown, to have lost their
employment status;
12. Petitioner union moved for the reconsideration of the order but
its motion was denied. The union went to the Court of Appeals via a
petition for certiorari. In the now questioned decision promulgated
on 29 December 1999, the appellate court dismissed the petition.
The union's motion for reconsideration was likewise denied.
Issues:
Whether or not the respondents have engaged in "overtime
boycott" and "work slowdown"
Ruling:
Both amounting to illegal strike, the evidence presented is equally
crystal clear that the "overtime boycott" and "work slowdown"
committed by the respondents amounted to illegal strike.
Evidently, from all the foregoing, respondents' unjustified unilateral
alteration of the 24-hour work schedule thru their concerted
activities of "overtime boycott" and "work slowdown" from April 16,
1993 up to March 7, 1994, to force the petitioner company to
accede to their unreasonable demands, can be classified as a strike
on an installment basis, as correctly called by petitioner company.
It is thus undisputed that members of the union by their own
volition decided not to render overtime services. Petitioner union
even admitted this in its Memorandum filed with the Court of
Appeals, as well as in the petition before this Court, which both
stated that "(s)sometime in April 1993, members of herein
petitioner, on their own volition and in keeping with the regular
working hours in the Company x x x decided not to render
overtime". Such admission confirmed the allegation of respondent
company that petitioner engaged in "overtime boycott" and "work
slowdown" which, to use the words of Labor Arbiter Caday, was
taken as a means to coerce respondent company to yield to its
unreasonable demands.
More importantly, the "overtime boycott" or "work slowdown" by
the employees constituted a violation of their CBA, which prohibits
the union or employee, during the existence of the CBA, to stage a
strike or engage in slowdown or interruption of work.
In Ilaw at Buklod ng Manggagawa vs. NLRC, this Court ruled:... x x x
(T)he concerted activity in question would still be illicit because
contrary to the workers' explicit contractual commitment "that
there shall be no strikes, walkouts, stoppage or slowdown of work,
boycotts, secondary boycotts, refusal to handle any merchandise,
picketing, sit-down strikes of any kind, sympathetic or general
strikes, or any other interference with any of the operations of the
COMPANY during the term of xxx (their collective bargaining)
agreement."
What has just been said makes unnecessary resolution of SMC's
argument that the workers' concerted refusal to adhere to the work
schedule in force for the last several years, is a slowdown, an
inherently illegal activity essentially illegal even in the absence of a
no-strike clause in a collective bargaining contract, or statute or rule.
The Court is in substantial agreement with the petitioner's concept
of a slowdown as a "strike on the installment plan;" as a willful
reduction in the rate of work by concerted action of workers for the
purpose of restricting the output of the employer, in relation to a
labor dispute; as an activity by which workers, without a complete
stoppage of work, retard production or their performance of duties
and functions to compel management to grant their demands. The
Court also agrees that such a slowdown is generally condemned as
inherently illicit and unjustifiable, because while the employees
"continue to work and remain at their positions and accept the
wages paid to them," they at the same time "select what part of
their allotted tasks they care... to perform of their own volition or
refuse openly or secretly, to the employer's damage, to do other
work;" in other words, they "work on their own terms."

WHEREFORE, the petition is DENIED DUE COURSE

Principles:

The appellate court also correctly held that the question of the
Secretary of Labor and Employment's jurisdiction over labor-related
disputes was already settled in International Pharmaceutical, Inc. vs.
Hon. Secretary of Labor and Associated Labor Union (ALU)[10]
where the Court declared:

In the present case, the 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 controversies arising therefrom, including cases over which the
labor arbiter has exclusive jurisdiction.
 NATIONAL UNION OF WORKERS IN HOTEL RESTAURANT v. CA,
GR No. 163942, 2008-11-11
Facts:
1. The Union is the certified bargaining agent of the regular rank-
and-file employees of Dusit Hotel Nikko (Hotel), a five star service
establishment owned and operated by Philippine Hoteliers
Chiyuki Fuijimoto and Esperanza V. Alvez are impleaded in their
official capacities as the Hotel's General Manager and Director of
Human Resources, respectively.
2. The Union submitted its Collective Bargaining Agreement (CBA)
negotiation proposals to the Hotel. As negotiations ensued, the
parties failed to arrive at mutually acceptable terms and conditions.
3. Due to the bargaining deadlock, the Union, on December 20,
2001, filed a Notice of Strike with the National Conciliation and
Mediation Board (NCMB). Consequently, a Strike Vote on which it
was decided that the Union would wage a strike.
4. Soon thereafter, in the afternoon of January 17, 2002, the Union
held a general assembly at its office located in the Hotel's basement,
where some members sported closely cropped hair or cleanly
shaven heads.
The Hotel prevented these workers from entering the premises
claiming that they violated the Hotel's Grooming Standards.
5. The Union staged a picket outside the Hotel premises. Later, other
workers were also prevented from entering the Hotel causing them
to join the picket.
6. The Hotel then terminated the services of twenty-nine (29) Union
officers and sixty-one (61) members; and suspended eighty-one (81)
employees for 30 days, forty-eight (48) employees for 15 days, four
(4) employees for 10 days, and three (3) employees for five days. On
the same day, the Union declared a strike.
7. Starting that day, the Union engaged in picketing the premises of
the Hotel. During the picket, the Union officials and members
unlawfully blocked the ingress and egress of the Hotel premises.
8. T he Secretary assumed jurisdiction over the labor dispute and
certified the case to the NLRC for compulsory arbitration.
9. The NLRC issued its decision in NLRC NCR CC No. 000215-02, in
which it ordered the Hotel and the Union to execute a CBA within 30
days from the receipt of the decision. The NLRC also held that the
act of the employee was an illegal strike in which illegal acts were
committed by the Union; and that the strike violated the "No Strike,
No Lockout" provision of the CBA, which thereby caused the
dismissal of 29 Union officers and 61 Union members.
The NLRC explained that the strike which occurred was illegal
because it failed to comply with the mandatory 30-day cooling-off
period and the seven-day strike ban, as the strike occurred only 29
days after the submission of the notice of strike on December 20,
2001 and only four days after the submission of the strike vote on
January 14, 2002. The NLRC also ruled that even if the Union had
complied with the temporal requirements mandated by law, the
strike would nonetheless be declared illegal because it was attended
by illegal acts committed by the Union officers and members.
10. The CA promulgated its decision in CA-G.R. SP No. 76568 which
dismissed the Union's petition and affirmed the rulings of the NLRC.
Issues:
(1) Whether or not the union, the 29 union officers and 61 members
may be adjudged guilty of staging an illegal despite respondents'
admission that they prevented said officers and members from
reporting for work for alleged violation of the hotel's grooming
standards
(2) Whether or not the 29 union officers and 61 members may
validly be dismissed and more than 200 members be validly
suspended on the basis of four (4) self-serving affidavits of
respondents
(3) Whether or not respondents in preventing union officers and
members from reporting for work committed an illegal lock-out
Ruling:
1. The Union maintains that the mass picket conducted by its
officers and members did not constitute a strike and was merely an
expression of their grievance resulting from the lockout effected by
the Hotel management. On the other hand, the Hotel argues that
the Union's deliberate defiance of the company rules and
regulations was a concerted effort to paralyze the operations of the
Hotel, as the Union officers and members knew pretty well that they
would not be allowed to work in their bald or cropped hair style. For
this reason, the Hotel argues that the Union committed an illegal
strike.
2. We rule for the Hotel.
We hold that the Union is liable for conducting an illegal strike for
the following reasons:
FIRST, the Union's violation of the Hotel's Grooming Standards was
clearly a deliberate and concerted action to undermine the
authority of and to embarrass the Hotel and was, therefore, not a
protected action. The appearances of the Hotel employees directly
reflect the character and well-being of the Hotel, being a five-star
hotel that provides service to top-notch clients. Being bald or having
cropped hair per se does not evoke negative or unpleasant feelings.
The reality that a substantial number of employees assigned to the
food and beverage outlets of the Hotel with full heads of hair
suddenly decided to come to work bald-headed or with cropped
hair, however, suggests that something is amiss and insinuates a
sense that something out of the ordinary is afoot.
This Court is of the opinion, therefore, that the act of the Union was
not merely an expression of their grievance or displeasure but,
indeed, a calibrated and calculated act designed to inflict serious
damage to the Hotel's finances or its reputation.
SECOND, the Union's concerted action which disrupted the Hotel's
operations clearly violated the CBA's "No Strike, No Lockout"
provision, which reads:
The Union agrees that there shall be no strikes, walkouts, stoppage
or slow-down of work, boycott, refusal to handle accounts,
picketing, sit-down strikes, sympathy strikes or any other form of
interference and/or interruptions with any of the normal operations
of the HOTEL during the life of this Agreement.
The facts are clear that the strike arose out of a bargaining deadlock
in the CBA negotiations with the Hotel. The concerted action is an
economic strike upon which the afore-quoted "no strike/work
stoppage and lockout" prohibition is squarely applicable and legally
binding.
THIRD, the Union officers and members' concerted action to shave
their heads and crop their hair not only violated the Hotel's
Grooming Standards but also violated the Union's duty and
responsibility to bargain in good faith.
Since the bargaining deadlock is being conciliated by the NCMB, the
Union's action to have their officers and members' heads shaved
was manifestly calculated to antagonize and embarrass the Hotel
management and in doing so effectively disrupted the operations of
the Hotel and violated their duty to bargain collectively in good
faith.
FOURTH, the Union failed to observe the mandatory 30-day
cooling-off period and the seven-day strike ban before it
conducted the strike on January 18, 2002. The NLRC correctly held
that the Union failed to observe the mandatory periods before
conducting or holding a strike.
It is obviously impracticable for the Hotel to actually reinstate the
employees who shaved their heads or cropped their hair because
this was exactly the reason they were prevented from working in the
first place. Further, as with most labor disputes which have resulted
in strikes, there is mutual antagonism, enmity, and animosity
between the union and the management. Payroll reinstatement,
most especially in this case, would have been the only avenue where
further incidents and damages could be avoided. Public officials
entrusted with specific jurisdictions enjoy great confidence from this
Court.
2. In Toyota Motor Phils. Corp. Workers Association (TMPCWA) v.
National Labor Relations Commission, we cited the various
categories of an illegal strike, to wit:
Noted authority on labor law, Ludwig Teller, lists six (6) categories of
an illegal strike, viz.:

Records reveal that the Union filed its Notice of Strike on the
ground of bargaining deadlock on December 20, 2001. The 30-day
cooling-off period should have been until January 19, 2002. On top
of that, the strike vote was held on January 14, 2002 and was
submitted to the NCMB only on January 18, 2002; therefore, the 7-
day strike ban should have prevented them from holding a strike
until January 25, 2002.
LAST, the Union committed illegal acts in the conduct of its strike.
The NLRC ruled that the strike was illegal since, as shown by the
pictures presented by the Hotel, the Union officers and members
formed human barricades and obstructed the driveway of the Hotel.
Union officers may be dismissed pursuant to Art. 264(a), par. 3 of
the Labor Code which imposes the penalty of dismissal on "any
union officer who knowingly participates in an illegal strike."
We, however, are of the opinion that there is room for leniency
with respect to the Union members. It is pertinent to note that the
Hotel was able to prove before the NLRC that the strikers blocked
the ingress to and egress from the Hotel. But it is quite apparent
that the Hotel failed to specifically point out the... participation of
each of the Union members in the commission of illegal acts during
the picket and the strike. For this lapse in judgment or diligence, we
are constrained to reinstate the 61 Union members.
(1)[when it] is contrary to a specific prohibition of law, such as strike
by employees performing governmental functions; or
(2) [when it] violates a specific requirement of law[, such as Article
263 of the Labor Code on the requisites of a valid strike]; or
(3) [when it] is declared for an unlawful purpose, such as inducing
the employer to commit an unfair labor practice against non-union
employees; or
(4) [when it] employs unlawful means in the pursuit of its objective,
such as a widespread terrorism of non-strikers [for example,
prohibited acts under Art. 264(e) of the Labor Code]; or
(5) [when it] is declared in violation of an existing injunction[, such
as injunction, prohibition, or order issued by the DOLE Secretary and
the NLRC under Art. 263 of the Labor Code]; or
(6) [when it] is contrary to an existing agreement, such as a no-strike
clause or conclusive arbitration clause.

WHEREFORE, premises considered, the CA's May 6, 2004 Decision

in CA-G.R. SP No. 70778 is hereby AFFIRMED.

The CA's January 19, 2004 Decision in CA-G.R. SP No. 76568 is

hereby SET ASIDE. The October 9, 2002 Decision of the NLRC in
NLRC NCR CC No. 000215-02 is hereby AFFIRMED with
MODIFICATIONS,

Principles:

We held in

MANILA DIAMOND HOTEL EMPLOYEES' UNION V. COURT OF

APPEALS that payroll reinstatement is a departure from the rule,
and special circumstances which make actual reinstatement
impracticable must be shown. In one case, payroll reinstatement
was allowed where the employees previously occupied
confidential positions, because their actual reinstatement, the
Court said, would be impracticable and would only serve to
exacerbate the situation. In another case, this Court held that the
NLRC did not commit grave abuse of discretion when it allowed
payroll reinstatement as an option in lieu of actual reinstatement for
teachers who were to be reinstated in the middle of the first term.
We held that the NLRC was merely trying its best to work out a
satisfactory ad hoc solution to a festering and serious problem.
 CAPITOL MEDICAL CENTER v. NLRC
GR NO. 147080, 2005-04-26
Facts:
1. 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 petitioner's
refusal to negotiate for a collective bargaining agreement (CBA)
resulted in a union-led strike on April 15, 1993.
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
Union's duty to submit the said notice of strike vote.
Ruling:
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.
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.
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. 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 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.
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
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.
Principles:
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 union's
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.
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
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.
G.R. No. 154113: December 7, 2011
EDEN GLADYS ABARIA, et al., Petitioners, v. NATIONAL LABOR
RELATIONS COMMISSION, et al., Respondents.
G.R. No. 187778
PERLA NAVA, et al., Petitioners, v. NATIONAL LABOR RELATIONS
COMMISSION et al., Respondents.
G.R. No. 187861
METRO CEBU COMMUNITY HOSPITAL, presently known as Visayas
Community Medical Center (VCMC), Petitioner, v. PERLA NAVA, et
al., Respondents.
G.R. No. 196156
VISAYAS COMMUNITY MEDICAL CENTER (VCMC) formerly known
as METRO CEBU COMMUNITY HOSPITAL (MCCH), Petitioner, v.
ERMA YBALLE, NELIA ANGEL, ELEUTERIA CORTEZ and EVELYN ONG,
Respondents.
VILLARAMA, JR.,J.:
FACTS:
The consolidated petitions before us involve the legality of mass
termination of hospital employees who participated in strike and
picketing activities.
In a letter addressed to Nava, Ernesto Canen, Jr., Jesusa Gerona,
Hannah Bongcaras, Emma Remocaldo, Catalina Alsado and Albina
Baz, Atty. Alforque suspended their union membership for serious
violation of the Constitution and By-Laws.
Upon the request of Atty. Alforque, MCCHI granted one-day union
leave with pay for 12 union members.The next day, several union
members led by Nava and her group launched a series of mass
actions such as wearing black and red armbands/headbands,
marching around the hospital premises and putting up placards,
posters and streamers.For their continued picketing activities
despite the said warning, more than 100 striking employees were
dismissed.Unfazed, the striking union members held more mass
actions. With the volatile situation adversely affecting hospital
operations and the condition of confined patients, MCCHI filed a
petition for injunction. A temporary restraining order (TRO) was
issued.
Thereafter, several complaints for illegal dismissal and unfair labor
practice were filed by the terminated employees against MCCHI,
Rev. Iyoy, UCCP and members of the Board of Trustees of MCCHI.
Executive Labor Arbiter Reynoso A. Belarmino rendered his decision
dismissing the complaints for unfair labor practice. Complainants
appealed to the Commission, which affirmed the Labor Arbiter.
Complainants elevated the case to the Court of Appeals (CA) (Cebu
Station) via a petition for certiorari. CAs Eighth Division dismissed
the petition on the ground that out of 88 petitioners only 47 have
signed the certification against forum shopping.
InG.R. No. 196156, MCCHI/VCMC prayed for the annulment of
Resolution of the CA, for this Court to declare the dismissal of
respondents Yballe, et al. as valid and legal and to reinstate the
Resolution of the NLRC.
G.R. No. 187861 was consolidated with G.R. Nos. 154113 and
187778 as they involve similar factual circumstances and identical or
related issues. G.R. No. 196156 was later also consolidated with the
aforesaid cases.
ISSUE:Whether or not respondents are illegally dismissed?
HELD: Court of Appeals decision is sustained.
(1) Records of the NCMB and DOLE Region 7 confirmed that NAMA-
MCCH-NFL had not registered as a labor organization, having
submitted only its charter certificate as an affiliate or local chapter
of NFL.Not being a legitimate labor organization, NAMA-MCCH-NFL
is not entitled to those rights granted to a legitimate labor
organization under Art. 242.
Aside from the registration requirement, it is only the labor
organization designated or selected by the majority of the
employees in an appropriate collective bargaining unit which is the
exclusive representative of the employees in such unit for the
purpose of collective bargaining, as provided in Art. 255.NAMA-
MCCH-NFL is not the labor organization certified or designated by
the majority of the rank-and-file hospital employees to represent
them in the CBA negotiations but the NFL, as evidenced by CBAs
concluded in 1987, 1991 and 1994.
Even assuming that NAMA-MCCH-NFL had validly disaffiliated from
its mother union, NFL, it still did not possess the legal personality to
enter into CBA negotiations. A local union which is not
independently registered cannot, upon disaffiliation from the
federation, exercise the rights and privileges granted by law to
legitimate labor organizations; thus, it cannot file a petition for
certification election.Besides, the NFL as the mother union has the
right to investigate members of its local chapter under the
federations Constitution and By-Laws, and if found guilty to expel
such members.MCCHI therefore cannot be faulted for deferring
action on the CBA proposal submitted by NAMA-MCCH-NFL in view
of the union leaderships conflict with the national federation. We
have held that the issue of disaffiliation is an intra-union
disputewhich must be resolved in a different forum in an action at
the instance of either or both the federation and the local union or a
rival labor organization, not the employer.
(2) The above provision makes a distinction between workers and
union officers who participate in an illegal strike: an ordinary striking
worker cannot be terminated for mere participation in an illegal
strike. There must be proof that he or she committed illegal acts
during a strike. A union officer, on the other hand, may be
terminated from work when he knowingly participates in an illegal
strike, and like other workers, when he commits an illegal act during
a strike.
Considering their persistence in holding picketing activities despite
the declaration by the NCMB that their union was not duly
registered as a legitimate labor organization and the letter from
NFLs legal counsel informing that their acts constitute disloyalty to
the national federation, and their filing of the notice of strike and
conducting a strike vote notwithstanding that their union has no
legal personality to negotiate with MCCHI for collective bargaining
purposes, there is no question that NAMA-MCCH-NFL officers
knowingly participated in the illegal strike. The CA therefore did not
err in ruling that the termination of union officers Perla Nava,
Catalina Alsado, Albina Baz, Hannah Bongcaras, Ernesto Canen,
Jesusa Gerona and Guillerma Remocaldo was valid and justified.

(3) Separation pay is made an alternative relief in lieu of

reinstatement in certain circumstances, like: (a) when reinstatement
can no longer be effected in view of the passage of a long period of
time or because of the realities of the situation; (b) reinstatement is
inimical to the employer's interest; (c) reinstatement is no longer
feasible; (d) reinstatement does not serve the best interests of the
parties involved; (e) the employer is prejudiced by the workers
continued employment; (f) facts that make execution unjust or
inequitable have supervened; or (g) strained relations between the
employer and employee.

DENIED

DANILO ESCARIO v. NLRC, GR No. 160302, 2010-09-27
Facts:
The petitioners were among the regular employees of respondent
Pinakamasarap Corporation (PINA), a corporation engaged in
They were members of petitioner Malayang Samahan ng mga
Manggagawa sa Balanced Foods (Union).
At 8:30 in the morning of March 13, 1993, all the officers and some
200 members of the Union walked out of PINA's premises and
proceeded to the barangay office to show support for Juanito
Cañete, an officer of the Union charged with oral defamation by
Aurora Manor, PINA's... personnel manager, and Yolanda Fabella,
Manor's secretary
As a result of the walkout, PINA preventively suspended all officers
of the Union
PINA terminated the officers of the Union after a month.
PINA filed a complaint for unfair labor practice (ULP) and
damages. The complaint was assigned to then Labor Arbiter... who
ruled in his decision... incident was an illegal walkout constituting
ULP; and that... all the Union's officers, except Cañete, had
thereby lost their employment.[4]... the Union filed a notice of
strike, claiming that PINA was guilty of union busting through the
constructive dismissal of its officers.
The strike was held in the afternoon of June 15, 1993.
PINA retaliated by charging the petitioners with ULP and
abandonment of work, stating that they had violated provisions on
strike of the collective bargaining agreement (CBA),... he National
Labor Relations Commission (NLRC) issued a temporary
restraining order (TRO), enjoining the Union's officers and
members to cease and desist from barricading and obstructing the
entrance to and exit from PINA's premises
Labor Arbiter... rendered a decision... eclaring the subject strike to
be illegal.
On appeal, the NLRC sustained the finding that the strike was
illegal, but reversed the LA's ruling that there was abandonment
Under Article 264 of the Labor Code, as amended, the union
officers who knowingly participate in the illegal strike may be
declared to have lost their employment status. However, mere
participation of a union member in the illegal strike does not mean
loss of employment status... unless he participates in the
commission of illegal acts during the strike... the petitioners
assailed the NLRC's decision through a petition for certiorari in the
Court of Appeals (CA), claiming that the NLRC gravely abused its
discretion in not awarding backwages pursuant to Article
279 of the Labor Code, and in not declaring their strike as a good
faith strike.
the CA affirmed the NLRC
In denying the petitioners' claim for full backwages, the CA applied
the third paragraph of Article 264(a) instead of Article 279 of the
Labor Code, explaining that the only instance under
Article 264 when a dismissed employee would be reinstated with
full backwages was when he was dismissed by reason of an illegal
lockout; that Article 264 was silent on the award of backwages to
employees participating in a lawful strike; and that a reinstatement
with full... backwages would be granted only when the dismissal of
the petitioners was not done in accordance with Article 282
(dismissals with just causes) and Article 283 (dismissals with
authorized causes) of the Labor Code.
Issues:
The petitioners posit that they are entitled to full backwages from
the date of dismissal until the date of actual reinstatement due to
their not being found to have abandoned their jobs. They insist that
the CA decided the question in a manner contrary to law and...
jurisprudence.
Ruling:
We sustain the CA, but modify the decision on the amount of the
backwages in order to accord with equity and jurisprudence.
We do not agree with the petitioners.
Article 279 provides:
Article 279. Security of Tenure. - In cases of regular employment,
the employer shall not terminate the services of an employee
except for a just cause or when authorized by this Title. An
employee who is unjustly dismissed from work shall be entitled...
to reinstatement without loss of seniority rights and other privileges
and to his full backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual...
reinstatement.
By its use of the phrase unjustly dismissed, Article 279 refers to a
dismissal that is unjustly done, that is, the employer dismisses the
employee without observing due process, either substantive or
procedural.Substantive due process requires the attendance of
any... of the just or authorized causes for terminating an employee
as provided under Article 278 (termination by employer), or Article
283 (closure of establishment and reduction of personnel), or
Article 284 (disease as ground for termination), all of the Labor
Code; while... procedural due process demands compliance with
the twin-notice requirement.[17]
Contemplating two causes for the dismissal of an employee, that
is: (a) unlawful lockout; and (b) participation in an illegal strike, the
third paragraph of Article 264(a) authorizes the award of full
backwages only when the termination of employment is a...
consequence of an unlawful lockout. On the consequences of an
illegal strike, the provision distinguishes between a union officer
and a union member participating in an illegal strike. A union
officer who knowingly participates in an illegal strike is deemed to
have lost his... employment status, but a union member who is
merely instigated or induced to participate in the illegal strike is
more benignly treated.
The petitioners were terminated for joining a strike that was later
declared to be illegal. The NLRC ordered their reinstatement or, in
lieu of reinstatement, the payment of their separation pay, because
they were mere rank-and-file workers whom the Union's officers
had misled... into joining the illegal strike.
Petitioners not entitled to backwages... despite their reinstatement:
A fair day's wage for a fair day's labor
The petitioners' argument cannot be sustained.
The petitioners' participation in the illegal strike was precisely what
prompted PINA to file a complaint to declare them, as striking
employees, to have lost their employment status. However, the
NLRC ultimately ordered their reinstatement after finding that they
had not... abandoned their work by joining the illegal strike. They
were thus entitled only to reinstatement, regardless of whether or
not the strike was the consequence of the employer's ULP,[19]
considering that a strike was not a renunciation of the
employment... relation.[20
As a general rule, backwages are granted to indemnify a
dismissed employee for his loss of earnings during the whole
period that he is out of his job. Considering that an illegally
dismissed employee is not deemed to have left his employment,
he is entitled to all the rights and... privileges that accrue to him
from the employment... separation pay is made an alternative relief
in lieu of reinstatement in certain circumstances, like: (a) when
reinstatement can no longer be effected in view of the passage of
a long period of time or because of the realities of the situation;
(b)... reinstatement is inimical to the employer's interest; (c)
reinstatement is no longer feasible; (d) reinstatement does not
serve the best interests of the parties involved; (e) the employer is
prejudiced by the workers' continued employment; (f) facts... that
make execution unjust or inequitable have supervened; or (g)
strained relations between the employer and employee.
PINA manifested that the reinstatement of the petitioners would
not be feasible because: (a) it would "inflict disruption and
oppression upon the employer"; (b) "petitioners [had] stayed away"
for more than 15 years; (c) its machines had depreciated... and
had been replaced with newer, better ones; and (d) it now sold
goods through independent distributors, thereby abolishing the
positions related to sales and distribution.[29]
Under the circumstances, the grant of separation pay in lieu of
reinstatement of the petitioners was proper.
WHEREFORE, we affirm the decision dated August 18, 2003 of
the Court of Appeals, subject to the modification to the effect that
in lieu of reinstatement the petitioners are granted backwages
equivalent of one month for every year of service.
Principles:
employees dismissed for joining an illegal strike are not entitled to
backwages for the period of the strike even if they are reinstated
by virtue of their... being merely members of the striking union who
did not commit any illegal act during the strike.
That backwages are not granted to employees participating in an
illegal strike simply accords with the reality that they do not render
work for the employer during the period of the illegal strike.[23]
According to G&S Transport Corporation v.
Infante:[24]
With respect to backwages, the principle of a "fair day's wage for a
fair day's labor" remains as the basic factor in determining the
award thereof. If there is no work performed by the employee there
can be no wage or pay unless, of course, the laborer was able,...
willing and ready to work but was illegally locked out, suspended
or dismissed or otherwise illegally prevented from working. xxx In
Philippine Marine Officers' Guild v. Compañia Maritima, as
affirmed in Philippine Diamond Hotel and Resort v. Manila
Diamond Hotel
Employees Union, the Court stressed that for this exception to
apply, it is required that the strike be legal, a situation that does not
obtain in the case at bar. (
What is the appropriate amount for separation pay?
In G & S Transport,[32] the Court awarded separation pay
equivalent to one month salary per year of service considering that
17 years had passed from the time when the striking employees
were refused reinstatement. In Association of
Independent Unions in the Philippines v. NLRC,[33] the Court
allowed separation pay equivalent to one month salary per year of
service considering that eight years had elapsed since the
employees had staged their illegal strike.