REPUBLIC OF THE PHILIPPINES

NATIONAL LABOR RELATIONS COMMISSION

CITY OF SAN FERNANDO, PAMPANGA

ER Industries Philippines
INC.,
Complainant,

-versus-
NLRC CASE NO.
RAB III 12-3456
Ee1 P. Castillo,
Respondents.
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POSITION PAPER

COMES NOW, respondent ER Industries Philippines

INC. (ER), represented by Ms. ER Manager, through the
undersigned counsel, and unto this Honorable Office, most
respectfully submits this Position Paper with the following
averments:

I
PREFATORY STATEMENTS

This case involves a complaint for an illegal strike.

PARTIES

Complainant ER is a domestic corporation duly organized

and existing under the laws of the Republic of the Philippines, with
principal place of business Business Place, Pampanga, Philippines.
It may be served with summons and other legal processes at the
office of undersigned counsel.
 ER Manager, complainants Assistant General
Manager/Controller, is duly authorized to execute, verify,
acknowledge and otherwise sign any and all pleadings,
memoranda and all other documents (including any verification
and certification against forum shopping) that need to be filed
with judicial bodies or quasi-judicial bodies in cases involving ER,
either as plaintiff/complainant or respondent/defendant.

A copy of the pertinent Secretarys Certificate is attached

hereto as Annex A-series and made an integral part hereof.

While the following respondents are the employees of

complainant corporation:

Respondent Ee1 P. Castillo, is of legal age, Filipino, with

postal address at Blk 156 Lot 32 Madapdap Resettlement,
Mabalacat City, Pampanga, where he may be served summons
and legal processes.

III
STATEMENT OF FACTS

1. Respondents are employees of the complainant who are all

working in its production department.

2. Respondent Ee1 P. Castillo (hereinafter referred to as Castillo)

was employed as a Machinist on July 16, 2009.

Copies of employment contracts of respondent Ees are

attached hereto as Annex B-series accordingly and made an
integral part hereof.

3. On the 7th day of November 2016, the aforementioned employees,

without giving prior notice to the complainant ER, did not report
for work and half of them purposely went to the office of the
Department of Labor and Employment (DOLE) to initiate
complaint against ER for entitlement to payment of sick leave and
vacation leave and complaint for illegal deduction, while the other
half merely absent themselves and did not go to the DOLE.

4. The following day, on November 8, 2016, ER sent letters-

memorandum to the employees who staged a mass action of
 abandoning work and asked an explanation from them why they
went on a mass day-off and why no disciplinary action may be
imposed against them; attached hereto as Annex C-series are
the copies of memorandum-letters sent to the respondents;

5. None of the employees replied to the memorandum-letters of ER

and the other half of the employees who did not file complaint to
the DOLE earlier filed their complaint instead on November 9,
2016.

6. They did not report for work collectively and deliberately failed to
thought of the companys welfare. ER suffered losses in the
amount of Php 2, 561, 595. 11 as a result of the illegal strike;
hereto attached as Annex D-series is the accounting estimate
of labor cost lost by the company.

15. Complainant and respondent failed to settle the case

during the mandatory conference held on January 26, 2017;
hence, this position paper.

ISSUES

1) WHETHER OR NOT RESPONDENTS WENT ON TO

AN ILLEGAL STRIKE;

2) WHETHER OR NOT RESPONDENTS MAY BE HELD

LIABLE SHOULD THE FIRST QUESTION BE
RESOLVED IN THE AFFIRMATIVE.

ARGUMENTS AND DISCUSSION

1) Non-compliance with
Article 277 of the Labor
Code renders a labor
strike illegal

There is no question that the employees carried out a

temporary stoppage of work by their concerted action as a result
of a labor dispute. Respondents, in their desire to secure
entitlement to sick leave and vacation leave benefits, staged a
mass action against the company. Such an action, however, fails
to satisfy the standards required by law.

Firstly, the respondents who went on strike are not members

of a legitimate labor organization; hence, they are not possessed
of legal capacity to carry out a valid strike.

Rule XXII, Book V of the Omnibus Rules Implementing the

Labor Code pertinently provides:

RULE XXII
CONCILIATION, STRIKES AND LOCKOUTS

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SEC. 6. Who may declare a strike or lockout.
Any certified or duly recognized bargaining
representative may declare a strike in cases of
bargaining deadlocks and unfair labor practices. The
employer may declare a lockout in the same cases. In
the absence of a certified or duly recognized bargaining
representative, any legitimate labor organization in
the establishment may declare a strike but only on
grounds of unfair labor practice. (Emphasis supplied.)

It is, thus, clear that the strike carried out did not comply
with the aforequoted mandatory requirement of law and its
implementing rules. Consequently, the strike is illegal.

As the Court held in Hotel Enterprises of the Philippines, Inc.

(HEPI) v. Samahan ng mga Manggagawa sa Hyatt-National Union
of Workers in the Hotel and Restaurant and Allied Industries
(SAMASAH-NUWHRAIN), these requirements are mandatory and
failure to comply therewith renders the strike illegal.

Secondly, assuming arguendo that they have legal

personality to strike, the procedural requirements for a valid strike
were not observed. The procedural requirements for a valid strike
are, the following, to wit: (1) a notice of strike filed with the DOLE
at least 30 days before the intended date thereof, or 15 days in
case of ULP; (2) a strike vote approved by the majority of the total
union membership in the bargaining unit concerned, obtained by
secret ballot in a meeting called for that purpose; and (3) a notice
of the results of the voting at least seven days before the
intended strike given to the DOLE. These requirements are
mandatory, such that non-compliance therewith by the union will
render the strike illegal.1

The respondent employees neither filed the notice of strike

with the DOLE, nor observed the cooling-off period, nor submitted
the result of the strike vote. They merely absent themselves from
work and reported their grievances of non-payment of sick leave
and vacation leave and illegal deductions allegedly made. Such
acts of respondents greatly undermine ERs business. Misconduct
such as those must never be countenanced.

Also, a valid strike presupposes that there is a bargaining

deadlock and unfair labor practice. The law recognizes only the
two grounds mentioned that may support a valid strike. None of
such circumstance is obtaining in the case at bar. A strike not
based on any of these two causes is tainted with illegality.

It bears stressing that the requisites of strike are mandatory;

meaning non-compliance therewith makes the strike illegal. The
evident intention of the law in requiring these is to reasonably
regulate the right to strike.

The right to strike is one of the rights recognized and

guaranteed by the Constitution as an instrument of labor. By
virtue of this right, the workers are able to press their demands
for better terms of employment with more energy and
persuasiveness. However, the right to strike as a means for the
attainment of social justice is never meant to oppress or destroy
the employers.

2) The illegal strike staged

is tantamount to gross
negligence, serious
misconduct and
abandonment of work
by the respondents

1 The Hongkong and Shanghai Banking Corporation Employees Union, et.al v NLRC
and The HSBC, Ltd. GR. No. 156635 January 11, 2016.
 The action taken by the respondents constitutes a valid
ground for the termination of their employment. Grievances, no
matter how legitimate are they, must be aired using only the right
avenues.

Mere participation in a strike, without committing illegal acts,

does not cause the dismissal of an employee. This is true even if
the strike is illegal. However, it is crystal clear that the acts of the
respondents herein may earn them the severance of their
employment with ER. The illegal strike may not cloak them the
immunity from the consequences of their acts.

It cannot be gainsaid that their collective filing of complaints

in a day that they should be working, without giving notice to the
company, is a serious misconduct. Moreso, their failure to give an
explanation after the company asks for an explanation and their
blatant disregard of the respect due to the company equates to
the authorized grounds for the dismissal of the respondents.

In view of the foregoing facts and with the strained

relationship between the employer and employees herein, it is but
rightful to adjudge their termination of employer employee
relationship.

VI.
PRAYER

WHEREFORE, in view of the foregoing, it is respectfully prayed

unto this Honorable Office that the complaint be resolved in favor
of the complainant and grant the dismissal of the respondents
from work.

Other reliefs that are just and equitable under the premises
are likewise prayed for.
 Privet Drive Diagon Alley, Pampanga for City of San
Fernando, Pampanga February 13, 2017.