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FIRST DIVISION

G.R. No. 193816, November 21, 2016

ERSON ANG LEE DOING BUSINESS AS "SUPER LAMINATION SERVICES,"


Petitioner, v. SAMAHANG MANGGAGAWA NG SUPER LAMINATION (SMSLS--
NAFLU-KMU), Respondent.

DECISION

SERENO, C.J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
on the Decision1 and Resolution2 of the Court of Appeals (CA) affirming the
assailed Decision3 of the Department of Labor and Employment (DOLE).
DOLE allowed the conduct of certification election among the rank-and-file
employees of Super Lamination Services (Super Lamination), Express
Lamination Services, Inc. (Express Lamination), and Express Coat
Enterprises, lnc. (Express Coat).

THE ANTECEDENT FACTS

Petitioner Erson Ang Lee (petitioner), through Super Lamination, is a duly


registered entity principally engaged in the business of providing lamination
services to the general public. Respondent Samahan ng mga Manggagawa ng
Super Lamination Services (Union A) is a legitimate labor organization, which
is also a local chapter affiliate of the National Federation of Labor Unions -
Kilusang Mayo Uno.4 It appears that Super Lamination is a sole
proprietorship under petitioner's name,5 while Express Lamination and
Express Coat are duly incorporated entities separately registered with the
Securities and Exchange Commission (SEC).6

On 7 March 2008, Union A filed a Petition for Certification Election7 to


represent all the rank-and-file employees of Super Lamination.8

Notably, on the same date, Express Lamination Workers' Union (Union B) also
filed a Petition for Certification Election to represent all the rank-and-file
employees of Express Lamination.9

Also on the same date, the Samahan ng mga Manggagawa ng Express Coat
Enterprises, Inc. (Union C) filed a Petition for Certification Election to
represent the rank-and-file employees of Express Coat.10

Super Lamination, Express Lamination, and Express Coat, all represented by


one counsel, separately claimed in their Comments and Motions to Dismiss
that the petitions must be dismissed on the same ground lack of employer-
employee relationship between these establishments and the bargaining units
that Unions A, B, and C seek to represent as well as these unions' respective
members.11 Super Lamination, in its Motion, posited that a majority of the
persons who were enumerated in the list of members and officers of Union A
were not its employees, but were employed by either Express Lamination or
Express Coat.12 Interestingly, both Express Lamination and Express Coat, in
turn, maintained the same argument that a majority of those who had
assented to the Petition for Certification Election were not employees of either
company, but of one of the two other companies involved.13
All three Petitions for Certification Election of the Unions were denied. On 21
May 2008, an Order was issued by DOLE National Capital Region (NCR) Med-
Arbiter Michael Angelo Parado denying the respective petitions of Unions B
and C on the ground that there was no existing employer-employee
relationship between the members of the unions and the companies
concerned. On 23 May 2008, DOLE NCR Med-Arbiter Alma Magdaraog-Alba
also denied the petition of respondent Union A on the same ground.14

The three unions filed their respective appeals before the Office of the DOLE
Secretary, which consolidated the appeal because the involved companies
alternately referred to one another as the employer of the members of the
bargaining units sought to be represented.15 The unions argued that their
petitions should have been allowed considering that the companies involved
were unorganized, and that the employers had no concomitant right to oppose
the petitions. They also claimed that while the questioned employees might
have been assigned to perform work at the other companies, they were all
under one management's direct control and supervision.16

DOLE, through Undersecretary Romeo C. Lagman, rendered the assailed


Decision, the dispositive portion of which reads as follows:

WHEREFORE, premises considered, the appeals filed by Express Lamination


Workers Union (ELWU-NAFLU-KMU), Samahang Manggagawa ng Express
Coat Enterprises, Inc. (SMEC-NAFLU-KMU) and Samahang Manggagawa ng
Super Lamination Services (SMSLS- NAFLU-KMU) are hereby GRANTED and
the Orders dated 21 May 2008 of DOLE-NCR Mediator-Arbiter Michael Angelo
T. Parado are hereby REVERSED and SET ASIDE. The Order dated 23 May
2008 of DOLE NCR Mediator-Arbiter Alma E. Magdaraog-Alba is likewise
REVERSED and SET ASIDE.
Accordingly, let the entire records of this be remanded to the regional office of
origin for the immediate conduct of certification election among the rank-and-
file employees of Express Lamination Services, Inc., Super Lamination
Services and Express Coat Enterprises Inc., after the conduct of pre-election
conference/s, with the following as choices;

1. Express Lamination Workers Union-NAFLU-KMU;

2. Samahan ng mga Manggagawa ng Super Lamination Services- NAFLU-


KMU;

3. Samahang ng mga Manggagawa ng Express Coat Enterprises, Inc.-NAFLU-


KMU; and

4. "No Union."

The employer/s and/or contending union(s) are hereby directed to submit to


the Regional Office of origin, within ten (10) days from receipt of this Decision,
a certified list of employees in the bargaining unit or the payrolls covering the
members of the bargaining unit for the last three (3) months prior to the
issuance of the Decision.

SO DECIDED.17(Emphases in the original)

DOLE found that Super Lamination, Express Lamination, and Express Coat
were sister companies that had a common human resource department
responsible for hiring and disciplining the employees of the three companies.
The same department was found to have also given them daily instructions
on how to go about their work and where to report for work. It also found that
the three companies involved constantly rotated their workers, and that the
latter's identification cards had only one signatory.18

To DOLE, these circumstances showed that the companies were engaged in a


work-pooling scheme, in light of which they might be considered as one and
the same entity for the purpose of determining the appropriate bargaining
unit in a certification election.19 DOLE applied the concept of multi-employer
bargaining under Sections 5 and 6 of DOLE Department Order 40-03, Series
of 2003. Under that concept, the creation of a single bargaining unit for the
rank-and-file employees of all three companies was not implausible and was
justified under the given circumstances.20 Thus, it considered these rank-
and-file employees as one bargaining unit and ordered the conduct of a
certification election as uniformly prayed for by the three unions.

Aggrieved, petitioner instituted an appeal before the CA, which denied his
Petition and affirmed the Decision of DOLE. It sided with DOLE in finding that
Super Lamination, Express Lamination, and Express Coat were sister
companies that had adopted a work-pooling scheme. Therefore, it held that
DOLE had correctly applied the concept of multi-employer bargaining in
finding that the three companies could be considered as the same entity, and
their rank-and-file employees as comprising one bargaining unit.21

Petitioner filed a Motion for Reconsideration of the CA Decision, but the


motion was denied.22 Therefore, he now comes to this Court through the
present Petition.

ISSUES
From the established facts and arguments, we cull the issues as follows:

Whether the application of the doctrine of piercing the corporate veil is


warranted

Whether the rank-and-file employees of Super Lamination, Express


Lamination, and Express Coat constitute an appropriate bargaining unit

THE COURT'S RULING

We deny the petition.

An application of the doctrine of

piercing the corporate veil is

warranted.

Petitioner argues that separate corporations cannot be treated as a single


bargaining unit even if their businesses are related,23 as these companies are
indubitably distinct entities with separate juridical personalities.24 Hence,
the employees of one corporation cannot be allowed to vote in the certification
election of another corporation, lest the above-mentioned rule be violated.25

Petitioner's argument, while correct, is a general rule. This Court has time
and again disregarded separate juridical personalities under the doctrine of
piercing the corporate veil. It has done so in cases where a separate legal
entity is used to defeat public convenience, justify wrong, protect fraud, or
defend crime, among other grounds.26 In any of these situations, the law will
regard it as an association of persons or, in case of two corporations, merge
them into one.27

A settled formulation of the doctrine of piercing the corporate veil is that when
two business enterprises are owned, conducted, and controlled by the same
parties, both law and equity will, when necessary to protect the rights of third
parties, disregard the legal fiction that these two entities are distinct and treat
them as identical or as one and the same.28

This formulation has been applied by this Court to cases in which the laborer
has been put in a disadvantageous position as a result of the separate
juridical personalities of the employers involved.29 Pursuant to veil-piercing,
we have held two corporations jointly and severally liable for an employee's
back wages.30 We also considered a corporation and its separately-
incorporated branches as one and the same for purposes of finding the
corporation guilty of illegal dismissal.31 These rulings were made pursuant
to the fundamental doctrine that the corporate fiction should not be used as
a subterfuge to commit injustice and circumvent labor laws.32

Here, a certification election was ordered to be held for all the rank-and-file
employees of Super Lamination, Express Lamination, and Express Coat. The
three companies were supposedly distinct entities based on the fact that
Super Lamination is a sole proprietorship while Express Lamination and
Express Coat were separately registered with the SEC.33 The directive was
therefore, in effect, a piercing of the separate juridical personalities of the
corporations involved. We find the piercing to be proper and in accordance
with the law as will be discussed below.

The following established facts show that Super Lamination, Express


Lamination, and Express Coat are under the control and management of the
same party petitioner Ang Lee. In effect, the employees of these three
companies have petitioner as their common employer, as shown by the
following facts:

Super Lamination, Express Lamination, and Express Coat were engaged in


the same business of providing lamination services to the public as admitted
by petitioner in his petition.34

The three establishments operated and hired employees through a common


human resource department as found by DOLE in a clarificatory hearing.35
Though it was not clear which company the human resource department was
officially attached to, petitioner admits in his petition that such department
was shared by the three companies for purposes of convenience.36

The workers of all three companies were constantly rotated and periodically
assigned to Super Lamination or Express Lamination or Express Coat to
perform the same or similar tasks.37 This finding was further affirmed when
petitioner admitted in his petition before us that the Super Lamination had
entered into a work-pooling agreement with the two other companies and
shared a number of their employees.38

DOLE found and the CA affirmed that the common human resource
department imposed disciplinary sanctions and directed the daily
performance of all the members of Unions A, B, and C.39

Super Lamination included in its payroll and SSS registration not just its own
employees, but also the supposed employees of Express Lamination and
Express Coat. This much was admitted by petitioner in his Motion to
Dismiss40 which was affirmed by the Med-Arbiter in the latter's Order.41
Petitioner admitted that Super Lamination had issued and signed the
identification cards of employees who were actually working for Express
Lamination and Express Coat.42

Super Lamination, Express Lamination, and Express Coat were represented


by the same counsel who interposed the same arguments in their motions
before the Med-Arbiters and DOLE.43

Further, we discern from the synchronized movements of petitioner and the


two other companies an attempt to frustrate or defeat the workers' right to
collectively bargain through the shield of the corporations' separate juridical
personalities. We make this finding on the basis of the motions to dismiss
filed by the three companies. While similarly alleging the absence of an
employer-employee relationship, they alternately referred to one another as
the employer of the members of the bargaining units sought to be represented
respectively by the unions. This fact was affirmed by the Med-Arbiters' Orders
finding that indeed, the supposed employees of each establishment were
found to be alternately the employees of either of the two other companies as
well. This was precisely the reason why DOLE consolidated the appeals filed
by Unions A, B, and C.44

Due to the finger-pointing by the three companies at one another, the


petitions were dismissed. As a result, the three unions were not able to
proceed with the conduct of the certification election. This also caused
confusion among the employees as to who their real employer is, as Union A
claims in its Comment.45

We hold that if we allow petitioner and the two other companies to continue
obstructing the holding of the election in this manner, their employees and
their respective unions will never have a chance to choose their bargaining
representative. We take note that all three establishments were unorganized.
That is, no union therein was ever duly recognized or certified as a bargaining
representative.46

Therefore, it is only proper that, in order to safeguard the right of the workers
and Unions A, B, and C to engage in collective bargaining, the corporate veil
of Express Lamination and Express Coat must be pierced. The separate
existence of Super Lamination, Express Lamination, and Express Coat must
be disregarded. In effect, we affirm the lower tribunals in ruling that these
companies must be treated as one and the same unit for purposes of holding
a certification election.

Petitioner has cited Diatagon Labor Federation Local v. Ople47 and Indophil
Textile Mill Worker Union v. Calica48 in which this Court refused to treat
separate corporations as a single bargaining unit. Those cases, however, are
not substantially identical with this case and would not warrant their
application herein. Unlike in the instant case, the corporations involved were
found to be completely independent or were not involved in any act that
frustrated the laborers' rights.

In Diatagon,49 we refused to include the 236 employees of Georgia Pacific


International Corporation in the bargaining unit of the employees of Liangga
Bay Logging Co., Inc. This Court's refusal was in light of the fact that the two
corporations were indubitably distinct entities with separate corporate
identities and origins. Moreover, there was no discernible attempt to frustrate
any of their labor-related rights, as the only conflict was over which bargaining
unit they belonged to.

In Indophil,50 this Court refused to pierce the corporate veil of Indophil Textile
Mill and Indophil Acrylic Manufacturing. We found that the creation of
Indophil Acrylic was not a device to evade the application of the collective
bargaining agreement (CBA) between petitioner union and Indophil Textile
Mill. This Court further found that despite the similarity in their business
operations, the separate personalities of the two corporations were
maintained and were not used for any of the purposes specified under the law
that would warrant piercing. It is also apparent in this case that the workers'
rights were not being hampered by the employers concerned, as the only issue
between them was the extent of the subject CBA's application.

In this case, not only were Super Lamination, Express Lamination, and
Express Coat found to be under the control of petitioner, but there was also
a discernible attempt to disregard the workers' and unions' right to collective
bargaining.

The foregoing considered, we find no error in the CA's affirmance of the DOLE
directive. We affirm DOLE's application by analogy of the concept of multi-
employer bargaining to justify its Decision to treat the three companies as
one. While the multi-employer bargaining mechanism is relatively new and
purely optional under Department Order No. 40-03, it illustrates the State's
policy to promote the primacy of free and responsible exercise of the right to
collective bargaining.51 The existence of this mechanism in our labor laws
affirm DOLE's conclusion that its treatment of the employees of the three
companies herein as a single bargaining unit is neither impossible nor
prohibited.52 It is justified under the circumstances discussed above.

Besides, it is an established rule that factual findings of labor officials, who


are deemed to have acquired expertise in matters within their jurisdiction, are
generally accorded by the courts not only respect but even finality when
supported by substantial evidence; i.e., that amount of relevant evidence
which a reasonable mind might accept as adequate to justify a conclusion.53
The bargaining unit of the rank-and- file employees of the three companies is
appropriate.

Petitioner argues that there is no showing that the rank-and-file employees of


the three companies would constitute an appropriate bargaining unit on
account of the latter's different geographical locations.54 This contention
lacks merit. The basic test for determining the appropriate bargaining unit is
the application of a standard whereby a unit is deemed appropriate if it affects
a grouping of employees who have substantial, mutual interests in wages,
hours, working conditions, and other subjects of collective bargaining.55 We
have ruled that geographical location can be completely disregarded if the
communal or mutual interests of the employees are not sacrificed.56

In the present case, there was communal interest among the rank-and-file
employees of the three companies based on the finding that they were
constantly rotated to all three companies, and that they performed the same
or similar duties whenever rotated.57 Therefore, aside from geographical
location, their employment status and working conditions were so
substantially similar as to justify a conclusion that they shared a community
of interest. This finding is consistent with the policy in favor of a single-
employer unit, unless the circumstances require otherwise.58 The more solid
the employees are, the stronger is their bargaining capacity.59

As correctly observed by the CA and DOLE, while there is no prohibition on


the mere act of engaging in a work-pooling scheme as sister companies, that
act will not be tolerated, and the sister companies' separate juridical
personalities will be disregarded, if they use that scheme to defeat the
workers' right to collective bargaining. The employees' right to collectively
bargain with their employers is necessary to promote harmonious labor-
management relations in the interest of sound and stable industrial peace.60

WHEREFORE, the Petition for Review on Certiorari under Rule 45 is DENIED


for lack of merit. The Court of Appeals Decision61 and Resolution62 in CA-
G.R. SP No. 109486 are hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

G.R. No. 96490 February 3, 1992

INDOPHIL TEXTILE MILL WORKERS UNION-PTGWO, petitioner,

vs.

VOLUNTARY ARBITRATOR TEODORICO P. CALICA and INDOPHIL TEXTILE


MILLS, INC., respondents.

Romeo C. Lagman for petitioner.

Borreta, Gutierrez & Leogardo for respondent Indophil Textile Mills, Inc.
MEDIALDEA, J.:

This is a petition for certiorari seeking the nullification of the award issued by
the respondent Voluntary Arbitrator Teodorico P. Calica dated December 8,
1990 finding that Section 1 (c), Article I of the Collective Bargaining Agreement
between Indophil Textile Mills, Inc. and Indophil Textile Mill Workers Union-
PTGWO does not extend to the employees of Indophil Acrylic Manufacturing
Corporation as an extension or expansion of Indophil Textile Mills,
Incorporated.

The antecedent facts are as follows:

Petitioner Indophil Textile Mill Workers Union-PTGWO is a legitimate labor


organization duly registered with the Department of Labor and Employment
and the exclusive bargaining agent of all the rank-and-file employees of
Indophil Textile Mills, Incorporated. Respondent Teodorico P. Calica is
impleaded in his official capacity as the Voluntary Arbitrator of the National
Conciliation and Mediation Board of the Department of Labor and
Employment, while private respondent Indophil Textile Mills, Inc. is a
corporation engaged in the manufacture, sale and export of yarns of various
counts and kinds and of materials of kindred character and has its plants at
Barrio Lambakin. Marilao, Bulacan.

In April, 1987, petitioner Indophil Textile Mill Workers Union-PTGWO and


private respondent Indophil Textile Mills, Inc. executed a collective bargaining
agreement effective from April 1, 1987 to March 31, 1990.
On November 3, 1967 Indophil Acrylic Manufacturing Corporation was
formed and registered with the Securities and Exchange Commission.
Subsequently, Acrylic applied for registration with the Board of Investments
for incentives under the 1987 Omnibus Investments Code. The application
was approved on a preferred non-pioneer status.

In 1988, Acrylic became operational and hired workers according to its own
criteria and standards. Sometime in July, 1989, the workers of Acrylic
unionized and a duly certified collective bargaining agreement was executed.

In 1990 or a year after the workers of Acrylic have been unionized and a CBA
executed, the petitioner union claimed that the plant facilities built and set
up by Acrylic should be considered as an extension or expansion of the
facilities of private respondent Company pursuant to Section 1(c), Article I of
the CBA, to wit,.

c) This Agreement shall apply to the Company's plant facilities and


installations and to any extension and expansion thereat. (Rollo, p.4)

In other words, it is the petitioner's contention that Acrylic is part of the


Indophil bargaining unit.

The petitioner's contention was opposed by private respondent which submits


that it is a juridical entity separate and distinct from Acrylic.

The existing impasse led the petitioner and private respondent to enter into a
submission agreement on September 6, 1990. The parties jointly requested
the public respondent to act as voluntary arbitrator in the resolution of the
pending labor dispute pertaining to the proper interpretation of the CBA
provision.

After the parties submitted their respective position papers and replies, the
public respondent Voluntary Arbitrator rendered its award on December 8,
1990, the dispositive portion of which provides as follows:

PREMISES CONSIDERED, it would be a strained interpretation and


application of the questioned CBA provision if we would extend to the
employees of Acrylic the coverage clause of Indophil Textile Mills CBA.
Wherefore, an award is made to the effect that the proper interpretation and
application of Sec. l, (c), Art. I, of the 1987 CBA do (sic) not extend to the
employees of Acrylic as an extension or expansion of Indophil Textile Mills,
Inc. (Rollo, p.21)

Hence, this petition raising four (4) issues, to wit:

1. WHETHER OR NOT THE RESPONDENT ARBITRATOR ERRED IN


INTERPRETING SECTION 1(c), ART I OF THE CBA BETWEEN PETITIONER
UNION AND RESPONDENT COMPANY.

2. WHETHER OR NOT INDOPHIL ACRYLIC IS A SEPARATE AND


DISTINCT ENTITY FROM RESPONDENT COMPANY FOR PURPOSES OF
UNION REPRESENTATION.
3. WHETHER OR NOT THE RESPONDENT ARBITRATOR GRAVELY
ABUSED HIS DISCRETION AMOUNTING TO LACK OR IN EXCESS OF HIS
JURISDICTION.

4. WHETHER OR NOT THE RESPONDENT ARBITRATOR VIOLATED


PETITIONER UNION'S CARDINAL PRIMARY RIGHT TO DUE PROCESS.
(Rollo, pp. 6-7)

The central issue submitted for arbitration is whether or not the operations
in Indophil Acrylic Corporation are an extension or expansion of private
respondent Company. Corollary to the aforementioned issue is the question
of whether or not the rank-and-file employees working at Indophil Acrylic
should be recognized as part of, and/or within the scope of the bargaining
unit.

Petitioner maintains that public respondent Arbitrator gravely erred in


interpreting Section l(c), Article I of the CBA in its literal meaning without
taking cognizance of the facts adduced that the creation of the aforesaid
Indophil Acrylic is but a devise of respondent Company to evade the
application of the CBA between petitioner Union and respondent Company.

Petitioner stresses that the articles of incorporation of the two corporations


establish that the two entities are engaged in the same kind of business,
which is the manufacture and sale of yarns of various counts and kinds and
of other materials of kindred character or nature.

Contrary to petitioner's assertion, the public respondent through the Solicitor


General argues that the Indophil Acrylic Manufacturing Corporation is not an
alter ego or an adjunct or business conduit of private respondent because it
has a separate legitimate business purpose. In addition, the Solicitor General
alleges that the primary purpose of private respondent is to engage in the
business of manufacturing yarns of various counts and kinds and textiles.
On the other hand, the primary purpose of Indophil Acrylic is to manufacture,
buy, sell at wholesale basis, barter, import, export and otherwise deal in yarns
of various counts and kinds. Hence, unlike private respondent, Indophil
Acrylic cannot manufacture textiles while private respondent cannot buy or
import yarns.

Furthermore, petitioner emphasizes that the two corporations have practically


the same incorporators, directors and officers. In fact, of the total stock
subscription of Indophil Acrylic, P1,749,970.00 which represents seventy
percent (70%) of the total subscription of P2,500,000.00 was subscribed to by
respondent Company.

On this point, private respondent cited the case of Diatagon Labor Federation
v. Ople, G.R. No. L-44493-94, December 3, 1980, 10l SCRA 534, which ruled
that two corporations cannot be treated as a single bargaining unit even if
their businesses are related. It submits that the fact that there are as many
bargaining units as there are companies in a conglomeration of companies is
a positive proof that a corporation is endowed with a legal personality
distinctly its own, independent and separate from other corporations (see
Rollo, pp. 160-161).

Petitioner notes that the foregoing evidence sufficiently establish that Acrylic
is but an extension or expansion of private respondent, to wit:

(a) the two corporations have their physical plants, offices and facilities
situated in the same compound, at Barrio Lambakin, Marilao, Bulacan;
(b) many of private respondent's own machineries, such as dyeing
machines, reeling, boiler, Kamitsus among others, were transferred to and are
now installed and being used in the Acrylic plant;

(c) the services of a number of units, departments or sections of private


respondent are provided to Acrylic; and

(d) the employees of private respondent are the same persons manning and
servicing the units of Acrylic. (see Rollo, pp. 12-13)

Private respondent insists that the existence of a bonafide business


relationship between Acrylic and private respondent is not a proof of being a
single corporate entity because the services which are supposedly provided
by it to Acrylic are auxiliary services or activities which are not really essential
in the actual production of Acrylic. It also pointed out that the essential
services are discharged exclusively by Acrylic personnel under the control and
supervision of Acrylic managers and supervisors.

In sum, petitioner insists that the public respondent committed grave abuse
of discretion amounting to lack or in excess of jurisdiction in erroneously
interpreting the CBA provision and in failing to disregard the corporate entity
of Acrylic.

We find the petition devoid of merit.

Time and again, We stress that the decisions of voluntary arbitrators are to
be given the highest respect and a certain measure of finality, but this is not
a hard and fast rule, it does not preclude judicial review thereof where want
of jurisdiction, grave abuse of discretion, violation of due process, denial of
substantial justice, or erroneous interpretation of the law were brought to our
attention. (see Ocampo, et al. v. National Labor Relations Commission, G.R.
No. 81677, 25 July 1990, First Division Minute Resolution citing Oceanic Bic
Division (FFW) v. Romero, G.R. No. L-43890, July 16, 1984, 130 SCRA 392)

It should be emphasized that in rendering the subject arbitral award, the


voluntary arbitrator Teodorico Calica, a professor of the U.P. Asian Labor
Education Center, now the Institute for Industrial Relations, found that the
existing law and jurisprudence on the matter, supported the private
respondent's contentions. Contrary to petitioner's assertion, public
respondent cited facts and the law upon which he based the award. Hence,
public respondent did not abuse his discretion.

Under the doctrine of piercing the veil of corporate entity, when valid grounds
therefore exist, the legal fiction that a corporation is an entity with a juridical
personality separate and distinct from its members or stockholders may be
disregarded. In such cases, the corporation will be considered as a mere
association of persons. The members or stockholders of the corporation will
be considered as the corporation, that is liability will attach directly to the
officers and stockholders. The doctrine applies when the corporate fiction is
used to defeat public convenience, justify wrong, protect fraud, or defend
crime, or when it is made as a shield to confuse the legitimate issues, or where
a corporation is the mere alter ego or business conduit of a person, or where
the corporation is so organized and controlled and its affairs are so conducted
as to make it merely an instrumentality, agency, conduit or adjunct of another
corporation. (Umali et al. v. Court of Appeals, G.R. No. 89561, September 13,
1990, 189 SCRA 529, 542)
In the case at bar, petitioner seeks to pierce the veil of corporate entity of
Acrylic, alleging that the creation of the corporation is a devise to evade the
application of the CBA between petitioner Union and private respondent
Company. While we do not discount the possibility of the similarities of the
businesses of private respondent and Acrylic, neither are we inclined to apply
the doctrine invoked by petitioner in granting the relief sought. The fact that
the businesses of private respondent and Acrylic are related, that some of the
employees of the private respondent are the same persons manning and
providing for auxilliary services to the units of Acrylic, and that the physical
plants, offices and facilities are situated in the same compound, it is our
considered opinion that these facts are not sufficient to justify the piercing of
the corporate veil of Acrylic.

In the same case of Umali, et al. v. Court of Appeals (supra), We already


emphasized that "the legal corporate entity is disregarded only if it is sought
to hold the officers and stockholders directly liable for a corporate debt or
obligation." In the instant case, petitioner does not seek to impose a claim
against the members of the Acrylic.

Furthermore, We already ruled in the case of Diatagon Labor Federation Local


110 of the ULGWP v. Ople (supra) that it is grave abuse of discretion to treat
two companies as a single bargaining unit when these companies are
indubitably distinct entities with separate juridical personalities.

Hence, the Acrylic not being an extension or expansion of private respondent,


the rank-and-file employees working at Acrylic should not be recognized as
part of, and/or within the scope of the petitioner, as the bargaining
representative of private respondent.
All premises considered, the Court is convinced that the public respondent
Voluntary Arbitrator did not commit grave abuse of discretion in its
interpretation of Section l(c), Article I of the CBA that the Acrylic is not an
extension or expansion of private respondent.

ACCORDINGLY, the petition is DENIED and the award of the respondent


Voluntary Arbitrator are hereby AFFIRMED.

SO ORDERED.

FIRST DIVISION

G.R. No. 188020, June 27, 2016

REN TRANSPORT CORP. AND/OR REYNALDO PAZCOGUIN III, Petitioners, v.


NATIONAL LABOR RELATIONS COMMISSION (2ND DIVISION), SAMAHANG
MANGGAGAWA SA REN TRANSPORT-ASSOCIATION OF DEMOCRATIC
LABOR ASSOCIATIONS (SMART-ADLO) REPRESENTED BY ITS PRESIDENT
NESTOR FULMINAR, Respondents.

G.R. No. 188252

SAMAHANG MANGGAGAWA SA REN TRANSPORT-ASSOCIATION OF


DEMOCRATIC LABOR ASSOCIATIONS (SMART-ADLO) REPRESENTED BY
NESTOR FULMINAR, Petitioner, v. REN TRANSPORT CORP. AND/OR
REYNALDO PAZCOGUIN III, Respondents.

DECISION

SERENO, C.J.:

Before this Court are consolidated Rule 45 petitions challenging the Decision1
and the Resolution2 issued by the Court of Appeals (CA) in CA-G.R. SP No.
100722.

THE FACTS

Samahan ng Manggagawa sa Ren Transport (SMART) is a registered union,


which had a five-year collective bargaining agreement (CBA) with Ren
Transport Corp. (Ren Transport) set to expire on 31 December 2004.3 The 60-
day freedom period of the CBA passed without a challenge to SMART'S
majority status as bargaining agent.4 SMART thereafter conveyed its
willingness to bargain with Ren Transport, to which it sent bargaining
proposals. Ren Transport, however, failed to reply to the demand.5

Subsequently, two members of SMART wrote to the Department of Labor and


Employment - National Capital Region (DOLE-NCR). The office was informed
that a majority of the members of SMART had decided to disaffiliate from their
mother federation to form another union, Ren Transport Employees
Association (RTEA).6 SMART contested the alleged disaffiliation through a
letter dated 4 April 2005.7
During the pendency of the disaffiliation dispute at the DOLE-NCR, Ren
Transport stopped the remittance to SMART of the union dues that had been
checked off from the salaries of union workers as provided under the CBA.8
Further, on 19 April 2005, Ren Transport voluntarily recognized RTEA as the
sole and exclusive bargaining agent of the rank-and-file employees of their
company.9

On 6 July 2005, SMART filed with the labor arbiter a complaint for unfair
labor practice against Ren Transport.10

THE LABOR ARBITER'S RULING

The labor arbiter rendered a decision11 finding Ren Transport guilty of acts
of unfair labor practice. The former explained that since the disaffiliation issue
remained pending, SMART continued to be the certified collective bargaining
agent; hence, Ren Transport's refusal to send a counter-proposal to SMART
was not justified. The labor arbiter also held that the company's failure to
remit the union dues to SMART and the voluntary recognition of RTEA were
clear indications of interference with the employees' exercise of the right to
self-organize.

Both parties elevated the case to the National Labor Relations Commission
(NLRC). SMART contested only the failure of the labor arbiter to award
damages.

Ren Transport challenged the entire Decision, assigning four errors in its
Memorandum of Appeal, namely: (1) SMART was no longer the exclusive
bargaining agent; (2) Ren Transport did not fail to bargain collectively with
SMART; (3) Ren Transport was not obliged to remit dues to SMART; and (4)
SMART lacked the personality to sue Ren Transport.12 All the assigned errors
were based on the assertion that SMART had lost its majority status.

The appeals were consolidated.

THE NLRC RULING

The NLRC issued a decision13 affirming the labor arbiter's finding of unfair
labor practice on the part of Ren Transport. Union dues were ordered remitted
to SMART.

The NLRC also awarded moral damages to SMART, saying that Ren
transport's refusal to bargain was inspired by malice or bad faith. The
precipitate recognition of RTEA evidenced such bad faith, considering that it
was done despite the pendency of the disaffiliation dispute at the DOLE-NCR.

Ren Transport filed a motion for reconsideration14 alleging, among others,


that the NLRC failed to resolve all the arguments the former had raised in its
memorandum of appeal.

The NLRC denied the motion for reconsideration,15 prompting Ren Transport
to file a Rule 65 petition with the CA.16

THE CA RULING
On 30 January 2009, the CA rendered a decision17 partially granting the
petition. It deleted the award of moral damages to SMART, but affirmed the
NLRC decision on all other matters. The CA ruled that SMART, as a
corporation, was not entitled to moral damages.18

On the contention that the NLRC decided the case without considering all the
arguments of Ren Transport, the CA found that the latter had passed upon
the principal issue of the existence of unfair labor practice.

Hence, both parties appealed to this Court.

THE ISSUES

Based on the foregoing facts and arguments raised in the petitions, the
threshold issues to be resolved are the following: (1) whether Ren Transport
committed acts of unfair labor practice; (2) whether the decision rendered by
the NLRC is valid on account of its failure to pass upon all the errors assigned
by Ren Transport; and (3) whether SMART is entitled to moral damages.

OUR RULING

We deny the petitions for lack of merit.

Ren Transport committed acts of unfair labor practice.


Ren Transport violated its duty to bargain collectively with SMART.

Ren Transport concedes that it refused to bargain collectively with SMART. It


claims, though, that the latter ceased to be the exclusive bargaining agent of
the rank-and-file employees because of the disaffiliation of the majority of its
members.19

The argument deserves no consideration.

Violation of the duty to bargain collectively is an unfair labor practice under


Article 258(g) of the Labor Code. An instance of this practice is the refusal to
bargain collectively as held in General Milling Corp. v. CA.20 In that case, the
employer anchored its refusal to bargain with and recognize the union on
several letters received by the former regarding the withdrawal of the workers'
membership from the union. We rejected the defense, saying that the
employer had devised a flimsy excuse by attacking the existence of the union
and the status of the union's membership to prevent any negotiation.21

It bears stressing that Ren Transport had a duty to bargain collectively with
SMART. Under Article 263 in relation to Article 267 of the Labor Code, it is
during the freedom period or the last 60 days before the expiration of the
CBA when another union may challenge the majority status of the
bargaining agent through the filing of a petition for a certification election. If
there is no such petition filed during the freedom period, then the employer
"shall continue to recognize the majority status of the incumbent bargaining
agent where no petition for certification election is filed."22
In the present case, the facts are not up for debate. No petition for certification
election challenging the majority status of SMART was filed during the
freedom period, which was from November 1 to December 31, 2004 the 60-
day period prior to the expiration of the five-year CBA. SMART therefore
remained the exclusive bargaining agent of the rank-and-file employees.

Given that SMART continued to be the workers' exclusive bargaining agent,


Ren Transport had the corresponding duty to bargain collectively with the
former. Ren Transport's refusal to do so constitutes an unfair labor practice.

Consequently, Ren Transport cannot avail itself of the defense that SMART no
longer represents the majority of the workers. The fact that no petition for
certification election was filed within the freedom period prevented Ren
Transport from challenging SMART'S existence and membership.

Moreover, it must be stressed that, according to the labor arbiter, the


purported disaffiliation from SMART was nothing but a convenient, self-
serving excuse.23 This factual finding, having been affirmed by both the CA
and the NLRC, is now conclusive upon the Court.24 We do not see any patent
error that would take the instant case out of the general rule.

Ren Transport interfered with the exercise of the employees' right to self-
organize.

Interference with the employees' right to self-organization is considered an


unfair labor practice under Article 258 (a) of the Labor Code. In this case, the
labor arbiter found that the failure to remit the union dues to SMART and the
voluntary recognition of RTEA were clear indications of interference with the
employees' right to self-organization.25 It must be stressed that this finding
was affirmed by the NLRC and the CA; as such, it is binding on the Court,
especially when we consider that it is not tainted with any blatant error. As
aptly pointed out by the labor arbiter, these acts were ill-timed in view of the
existence of a labor controversy over membership in the union.26

Ren Transport also uses the supposed disaffiliation from SMART to justify the
failure to remit union dues to the latter and the voluntary recognition of RTEA.
However, for reasons already discussed, this claim is considered a lame
excuse that cannot validate those acts.

II.

The NLRC decision is valid.

Ren Transport next argues that the decision rendered by the NLRC is defective
considering that it has failed to resolve all the issues in its Memorandum of
Appeal.27

We do not agree.

Section 14, Article VIII of the 1987 Constitution, states that "[n]o decision
shall be rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based." It has been held that the
constitutional provision does not require a "point-by-point consideration and
resolution of the issues raised by the parties."28

In the present case, the decision shows that the NLRC resolved the focal issue
raised by Ren Transport: whether or not SMART remained the exclusive
bargaining agent, such that Ren Transport could be found guilty of acts of
unfair labor practice. We quote the NLRC discussion:

At the outset, let it be stated that insofar as the principal issue of whether
unfair labor practice was committed by respondents, there is no occasion to
find, or even entertain, doubts that the findings and conclusion of the Labor
Arbiter that unfair labor practice (ULP) was committed against the
complainants, are infused with serious errors. We quote:

[I]t is our considered view that the respondents committed acts of unfair labor
practice even if the CBA between the complainant union and respondent
company already expired and majority of the workers of the existing
bargaining agent disaffiliated therefrom, formed its own union and have it
registered as an independent one, still the respondent Company has the duty
to bargain collectively with the existing bargaining agent. It bears stressing
that the disaffiliation issue of the members of the complainant union is still
pending before the DOLE and has not yet attained its finality; that there is no
new bargaining agent certified yet by the DOLE, there is no legal basis yet for
the respondent company to disregard the personality of the complainant
union and refused or ignored the agent for renewal of its CBA. It is still the
certified collective bargaining agent of the workers, because there was no new
[u]nion yet being certified by the DOLE as the new bargaining agent of the
workers.

The above discourse shows the factual and legal bases for the NLRC's
resolution of the issue of whether Ren Transport committed unfair labor
practice and thereby satisfies the constitutional provision on the contents of
a decision. The NLRC succeeded in disposing of all the arguments raised by
Ren Transport without going through every argument, as all the assigned
errors hinged on the majority status of SMART.29 All of these errors were
addressed and settled by the NLRC by finding that SMART was still the
exclusive bargaining agent of the employees of Ren Transport.
As aptly stated by the CA, a court or any other tribunal is not required to pass
upon all the errors assigned by Ren Transport; the resolution of the main
question renders the other issues academic or inconsequential.30

At this juncture, it is well to note that addressing every one of the errors
assigned would not be in keeping with the policy of judicial economy. Judicial
economy refers to "efficiency in the operation of the courts and the judicial
system; especially the efficient management of litigation so as to minimize
duplication of effort and to avoid wasting the judiciary's time and
resources."31 In Salud v. Court of Appeals,32 the Court remarked that
judicial economy is a "strong [norm] in a society in need of swift justice."33
Now, more than ever, the value of brevity in the writing of a decision assumes
greater significance, as we belong to an age in which dockets of the courts are
congested and their resources limited.

III.

SMART is not entitled to an award of moral damages.

We now address the petition of SMART, which faults the CA for deleting the
grant of moral damages.34

We hold that the CA correctly dropped the NLRC's award of moral damages to
SMART. Indeed, a corporation is not, as a general rule, entitled to moral
damages. Being a mere artificial being, it is incapable of experiencing physical
suffering or sentiments like wounded feelings, serious anxiety, mental
anguish or moral shock.35
Although this Court has allowed the grant of moral damages to corporations
in certain situations,36 it must be remembered that the grant is not
automatic. The claimant must still prove the factual basis of the damage and
the causal relation to the defendant's acts.37 In this case, while there is a
showing of bad faith on the part of the employer in the commission of acts of
unfair labor practice, there is no evidence establishing the factual basis of the
damage on the part of SMART.

WHEREFORE, premises considered, the petitions are DENIED. The Decision


dated 30 January 2009 and the Resolution dated 20 May 2009 issued by the
Court of Appeals in CA-G.R. SP No. 100722 are AFFIRMED.

SO ORDERED.

THIRD DIVISION

G.R. No. 171664 March 6, 2013

BANKARD, INC., Petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION- FIRST DIVISION, PAULO


BUENCONSEJO,BANKARD EMPLOYEES UNION-AWATU, Respondents.

DECISION
MENDOZA, J.:

This Petition for Review on Certiorari under Rule 45 of the Rules of Court
seeks to review, reverse and set aside the October 20, 2005 Decision1 and the
February 21, 2006 Resolution2 of the Court of Appeals {CA), in CA-G.R. SP
No. 68303, which affirmed the May 31, 2001 Resolution3 and the September
24, 2001 Order4 of the National Labor Relations Commission (NLRC) in
Certified Cases No. 000-185-00 and 000-191-00.

The Facts

On June 26, 2000, respondent Bankard Employees Union-AWATU (Union)


filed before the National Conciliation and Mediation Board (NCMB) its first
Notice of Strike (NOS), docketed as NS-06-225-00,5 alleging commission of
unfair labor practices by petitioner Bankard, Inc. (Bankard), to wit: 1) job
contractualization; 2) outsourcing/contracting-out jobs; 3) manpower
rationalizing program; and 4) discrimination.

On July 3, 2000, the initial conference was held where the Union clarified the
issues cited in the NOS. On July 5, 2000, the Union held its strike vote
balloting where the members voted in favor of a strike. On July 10, 2000,
Bankard asked the Office of the Secretary of Labor to assume jurisdiction over
the labor dispute or to certify the same to the NLRC for compulsory
arbitration. On July 12, 2000, Secretary Bienvenido Laguesma (Labor
Secretary) of the Department of Labor and Employment (DOLE) issued the
order certifying the labor dispute to the NLRC.6

On July 25, 2000, the Union declared a CBA bargaining deadlock. The
following day, the Union filed its second NOS, docketed as NS-07-265-00,7
alleging bargaining in bad faith on the part of Bankard. Bankard then again
asked the Office of the Secretary of Labor to assume jurisdiction, which was
granted. Thus, the Order, dated August 9, 2000, certifying the labor dispute
to the NLRC, was issued.8

The Union, despite the two certification orders issued by the Labor Secretary
enjoining them from conducting a strike or lockout and from committing any
act that would exacerbate the situation, went on strike on August 11, 2000.9

During the conciliatory conferences, the parties failed to amicably settle their
dispute. Consequently, they were asked to submit their respective position
papers. Both agreed to the following issues:

1. Whether job contractualization or outsourcing or contracting-out is an


unfair labor practice on the part of the management.

2. Whether there was bad faith on the part of the management when it
bargained with the Union.10

As regards the first issue, it was Bankards position that job


contractualization or outsourcing or contracting-out of jobs was a legitimate
exercise of management prerogative and did not constitute unfair labor
practice. It had to implement new policies and programs, one of which was
the Manpower Rationalization Program (MRP) in December 1999, to further
enhance its efficiency and be more competitive in the credit card industry.
The MRP was an invitation to the employees to tender their voluntary
resignation, with entitlement to separation pay equivalent to at least two (2)
months salary for every year of service. Those eligible under the companys
retirement plan would still receive additional pay. Thereafter, majority of the
Phone Center and the Service Fulfilment Division availed of the MRP. Thus,
Bankard contracted an independent agency to handle its call center needs.11

As to the second issue, Bankard denied that there was bad faith on its part
in bargaining with the Union. It came up with counter-offers to the Unions
proposals, but the latters demands were far beyond what management could
give. Nonetheless, Bankard continued to negotiate in good faith until the
Memorandum of Agreement (MOA) re-negotiating the provisions of the 1997-
2002, Collective Bargaining Agreement (CBA) was entered into between
Bankard and the Union. The CBA was overwhelmingly ratified by the Union
members. For said reason, Bankard contended that the issue of bad faith in
bargaining had become moot and academic.12

On the other hand, the Union alleged that contractualization started in


Bankard in 1995 in the Records Communications Management Division,
particularly in the mailing unit, which was composed of two (2) employees and
fourteen (14) messengers. They were hired as contractual workers to perform
the functions of the regular employees who had earlier resigned and availed
of the MRP.13 According to the Union, there were other departments in
Bankard utilizing messengers to perform work load considered for regular
employees, like the Marketing Department, Voice Authorizational
Department, Computer Services Department, and Records Retention
Department. The Union contended that the number of regular employees had
been reduced substantially through the management scheme of freeze-hiring
policy on positions vacated by regular employees on the basis of cost-cutting
measures and the introduction of a more drastic formula of streamlining its
regular employees through the MRP.14

With regard to the second issue, the Union averred that Bankards proposals
were way below their demands, showing that the management had no
intention of reaching an agreement. It was a scheme calculated to force the
Union to declare a bargaining deadlock.15

On May 31, 2001, the NLRC issued its Resolution16 declaring that the
management committed acts considered as unfair labor practice (ULP) under
Article 248(c) of the Labor Code. It ruled that:

The act of management of reducing its number of employees thru application


of the Manpower Rationalization Program and subsequently contracting the
same to other contractual employees defeats the purpose or reason for
streamlining the employees. The ultimate effect is to reduce the number of
union members and increasing the number of contractual employees who
could never be members of the union for lack of qualification. Consequently,
the union was effectively restrained in their movements as a union on their
rights to self-organization. Management had successfully limited and
prevented the growth of the Union and the acts are clear violation of the
provisions of the Labor Code and could be considered as Unfair Labor Practice
in the light of the provisions of Article 248 paragraph (c) of the Labor Code.17

The NLRC, however, agreed with Bankard that the issue of bargaining in bad
faith was rendered moot and academic by virtue of the finalization and signing
of the CBA between the management and the Union.18

Unsatisfied, both parties filed their respective motions for partial


reconsideration.1wphi1 Bankard assailed the NLRC's finding of acts of ULP
on its part. The Union, on the other hand, assailed the NLRC ruling on the
issue of bad faith bargaining.
On September 24, 2001, the NLRC issued the Order19 denying both parties'
motions for lack of merit.

On December 28, 2001, Bankard filed a petition for certiorari under Rule 65
with the CA arguing that the NLRC gravely abused its discretion amounting
to lack or excess of jurisdiction when:

1. It issued the Resolution, dated May 31, 2001, particularly in finding that
Bankard committed acts of unfair labor practice; and,

2. It issued the Order dated September 24, 2001 denying Bankard's partial
motion for reconsideration.20

The Union filed two (2) comments, dated January 22, 2002, through its NCR
Director, Cornelio Santiago, and another, dated February 6, 2002, through
its President, Paulo Buenconsejo, both praying for the dismissal of the petition
and insisting that Bankard's resort to contractualization or outsourcing of
contracts constituted ULP. It further alleged that Bankard committed ULP
when it conducted CBA negotiations in bad faith with the Union.

Ruling of the Court of Appeals

The CA dismissed the petition, finding that the NLRC ruling was supported
by substantial evidence.

The CA agreed with Bankard that job contracting, outsourcing and/or


contracting out of jobs did not per se constitute ULP, especially when made
in good faith and for valid purposes. Despite Bankard's claim of good faith in
resorting to job contractualization for purposes of cost-efficient operations
and its non-interference with the employees' right to self-organization, the CA
agreed with the NLRC that Bankard's acts impaired the employees right to
self-organization and should be struck down as illegal and invalid pursuant
to Article 248(c)21 of the Labor Code. The CA thus, ruled in this wise:

We cannot agree more with public respondent. Incontrovertible is the fact that
petitioner's acts, particularly its promotion of the program enticing employees
to tender their voluntary resignation in exchange for financial packages,
resulted to a union dramatically reduced in numbers. Coupled with the
management's policy of "freeze-hiring" of regular employees and contracting
out jobs to contractual workers, petitioner was able to limit and prevent the
growth of the Union, an act that clearly constituted unfair labor practice.22

In its assailed decision, the CA affirmed the May 31, 2001 Resolution and the
September 24, 2001 Order of the NLRC.

Aggrieved, Bankard filed a motion for reconsideration. The CA subsequently


denied it for being a mere repetition of the grounds previously raised. Hence,
the present petition bringing up this lone issue:

THE COURT OF APPEALS ERRED IN FINDING THAT PETITIONER BANKARD,


INC. COMMITTED ACTS OF UNFAIR LABOR PRACTICE WHEN IT
DISMISSED THE PETITION FOR CERTIORARI AND DENIED THE MOTION
FOR RECONSIDERATION FILED BY PETITIONER.23

Ruling of the Court


The Court finds merit in the petition.

Well-settled is the rule that "factual findings of labor officials, who are deemed
to have acquired expertise in matters within their jurisdiction, are generally
accorded not only respect but even finality by the courts when supported by
substantial evidence."24 Furthermore, the factual findings of the NLRC, when
affirmed by the CA, are generally conclusive on this Court.25 When the
petitioner, however, persuasively alleges that there is insufficient or
insubstantial evidence on record to support the factual findings of the
tribunal or court a quo, then the Court, exceptionally, may review factual
issues raised in a petition under Rule 45 in the exercise of its discretionary
appellate jurisdiction.26

This case involves determination of whether or not Bankard committed acts


considered as ULP. The underlying concept of ULP is found in Article 247 of
the Labor Code, to wit:

Article 247. Concept of unfair labor practice and procedure for prosecution
thereof. -- Unfair labor practices violate the constitutional right of workers
and employees to self-organization, are inimical to the legitimate interests of
both labor and management, including their right to bargain collectively and
otherwise deal with each other in an atmosphere of freedom and mutual
respect, disrupt industrial peace and hinder the promotion of healthy and
stable labor-management relations. x x x

The Court has ruled that the prohibited acts considered as ULP relate to the
workers right to self-organization and to the observance of a CBA. It refers to
"acts that violate the workers right to organize."27 Without that element, the
acts, even if unfair, are not ULP.28 Thus, an employer may only be held liable
for unfair labor practice if it can be shown that his acts affect in whatever
manner the right of his employees to self-organize.29

In this case, the Union claims that Bankard, in implementing its MRP which
eventually reduced the number of employees, clearly violated Article 248(c) of
the Labor Code which states that:

Art. 248. Unfair labor practices of employers. It shall be unlawful for an


employer to commit any of the following unfair labor practice:

xxxx

(c) To contract out services or functions being performed by union members


when such will interfere with, restrain or coerce employees in the exercise of
their rights to self-organization;

xxxx

Because of said reduction, Bankard subsequently contracted out the jobs held
by former employees to other contractual employees. The Union specifically
alleges that there were other departments in Bankard, Inc. which utilized
messengers to perform work load considered for regular employees like the
Marketing Department, Voice Authorizational Department, Computer
Services Department, and Records Retention Department.30 As a result, the
number of union members was reduced, and the number of contractual
employees, who were never eligible for union membership for lack of
qualification, increased.
The general principle is that the one who makes an allegation has the burden
of proving it.1avvphi1 While there are exceptions to this general rule, in ULP
cases, the alleging party has the burden of proving the ULP;31 and in order
to show that the employer committed ULP under the Labor Code, substantial
evidence is required to support the claim.32 Such principle finds justification
in the fact that ULP is punishable with both civil and/or criminal sanctions.33

Aside from the bare allegations of the Union, nothing in the records strongly
proves that Bankard intended its program, the MRP, as a tool to drastically
and deliberately reduce union membership. Contrary to the findings and
conclusions of both the NLRC and the CA, there was no proof that the program
was meant to encourage the employees to disassociate themselves from the
Union or to restrain them from joining any union or organization. There was
no showing that it was intentionally implemented to stunt the growth of the
Union or that Bankard discriminated, or in any way singled out the union
members who had availed of the retirement package under the MRP. True,
the program might have affected the number of union membership because
of the employees voluntary resignation and availment of the package, but it
does not necessarily follow that Bankard indeed purposely sought such
result. It must be recalled that the MRP was implemented as a valid cost-
cutting measure, well within the ambit of the so-called management
prerogatives. Bankard contracted an independent agency to meet business
exigencies. In the absence of any showing that Bankard was motivated by ill
will, bad faith or malice, or that it was aimed at interfering with its employees
right to self-organize, it cannot be said to have committed an act of unfair
labor practice.34

"Substantial evidence is more than a mere scintilla of evidence. It means such


relevant evidence as a reasonable mind might accept as adequate to support
a conclusion, even if other minds equally reasonable might conceivably opine
otherwise."35 Unfortunately, the Union, which had the burden of adducing
substantial evidence to support its allegations of ULP, failed to discharge such
burden.36

The employers right to conduct the affairs of its business, according to its
own discretion and judgment, is well-recognized.37 Management has a wide
latitude to conduct its own affairs in accordance with the necessities of its
business.38 As the Court once said:

The Court has always respected a company's exercise of its prerogative to


devise means to improve its operations. Thus, we have held that management
is free to regulate, according to its own discretion and judgment, all aspects
of employment, including hiring, work assignments, supervision and transfer
of employees, working methods, time, place and manner of work.

This is so because the law on unfair labor practices is not intended to deprive
employers of their fundamental right to prescribe and enforce such rules as
they honestly believe to be necessary to the proper, productive and profitable
operation of their business.39

Contracting out of services is an exercise of business judgment or


management prerogative. Absent any proof that management acted in a
malicious or arbitrary manner, the Court will not interfere with the exercise
of judgment by an employer.40Furthermore, bear in mind that ULP is
punishable with both civil and/or criminal sanctions.41 As such, the party
so alleging must necessarily prove it by substantial evidence. The Union, as
earlier noted, failed to do this. Bankard merely validly exercised its
management prerogative. Not shown to have acted maliciously or arbitrarily,
no act of ULP can be imputed against it.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
in CA-G.R. SP No. 68303, dated October 20, 2005, and its Resolution, dated
February 21, 2006, are REVERSED and SET ASIDE. Petitioner Bankard, Inc.
is hereby declared as not having committed any act constituting Unfair Labor
Practice under Article 248 of the Labor Code.

SO ORDERED.

THIRD DIVISION

January 11, 2016

G.R. No. 214092

ECHO 2000 COMMERCIAL CORPORATION, EDWARD N. ENRIQUEZ,


LEONORA K. BENEDICTO and ATTY. GINA WENCESLAO, Petitioners,

vs.

OBRERO FILIPINO-ECHO 2000 CHAPTER-CLO, ARLO C. CORTES and DAVE


SOMIDO, Respondents.

DECISION

REYES, J.:

Before the Court is the petition for review on certiorari1 filed by Echo 2000
Commercial Corporation (Echo) to assail the Decision2 rendered on
September 24, 2013 and Resolution3 issued on March 28, 2014 by the Court
of Appeals (CA) in CA-G.R. SP No. 121393. The CA affirmed the Decision4
dated April 15, 2011 of the National Labor Relations Commission's (NLRC)
Fifth Division, which declared that Arlo C. Cortes (Cortes) and Dave Somido
(Somido) (respondents) were illegally dismissed from employment by Echo.
Edward N. Enriquez (Enriquez), Leonora K. Benedicto (Benedicto) and Atty.
Gina Wenceslao (Atty. Wenceslao) used to be Echo's General Manager,
Operations and Human Resources Officer, and External Counsel, respectively
(Echo and the three officers are to be referred collectively as the petitioners).
The CA and NLRC's rulings reversed the Decision5 of Labor Arbiter (LA)
Renaldo O. Hernandez (Hernandez), who found the respondents' termination
from service as valid.

Antecedents

Echo is a provider of warehousing management and delivery services.

King 8 Commercial Corporation (King 8), Echo's predecessor, initially


employed Cortes on September 17, 2002, and Somido, on October 12, 2004.
Echo thereafter absorbed the respondents as employees on April 1, 2005. In
2008, Somido was made a Warehouse Checker, while Cortes, a Forklift
Operator.6

In January of 2009, the respondents and their co-workers formed Obrero


Pilipino-Echo 2000 Commercial Chapter (Union). Cortes was elected as Vice-
President while Somido became an active member. The respondents claimed
that the Union's President, Secretary and one of the board members were
subsequently harassed, discriminated and eventually terminated from
employment by Echo.7
In May of 2009, Echo received information about shortages in peso value
arising from the movement of products to and from its warehouse. After an
immediate audit, Echo suspected that there was a conspiracy among the
employees in the warehouse. Since an uninterrupted investigation was
necessary, Echo, in the exercise of its management prerogative, decided to re-
assign the staff. The respondents were among those affected.8

On July 7, 2009, Enriquez issued a memorandum informing the respondents


of their transfer to the Delivery Section, which was within the premises of
Echo's warehouse. The transfer would entail no change in ranks, status and
salaries.9

On July 14, 2009, Somido wrote Echo a letter10 indicating his refusal to be
promoted as a "Delivery Supervisor." He explained that he was already happy
as a Warehouse Checker. Further, he was not ready to be a Delivery
Supervisor since the position was sensitive and required more expertise and
training, which he did not have.

Cortes similarly declined Echo's offer of promotion claiming that he was


contented in his post then as a Forklift Operator. He also alleged that he would
be more productive as an employee if he remained in his post. He also lacked
prior supervisory experience.11

On July 16, 2009, Enriquez, sans consent of the respondents, informed the
latter of their assignments/designations, effective July 17, 2009, as Delivery
Supervisors with the following duties: (a) act as delivery dispatchers of booked
and planned deliveries for the day; (b) ensure the early loading of goods to the
delivery trucks to avoid late take-offs; (c) man delivery teams for the trucks;
(d) check the operational and cleanliness conditions of the trucks; (e) attend
to delivery concerns of account specialists of their outlets; and (f) call the
attention of other warehouse personnel and report the same to the Human
Resources Department regarding absences/tardiness, incomplete uniforms,
appearances, refusal to accept delivery trips and other matters affecting
warehouse productivity.12

Echo alleged that the respondents did not perform the new duties assigned to
them. Hence, they were each issued a memorandum, dated July 16, 2009,
requiring them to explain in writing their failure to abide with the new
assignments.13

On July 18, 2009, Echo clarified through a memo that the respondents were
designated as "Delivery Coordinators" and not "Supervisors."14

Thereafter, successive memoranda were issued by Echo to the respondents,


who refused to acknowledge receipt and comply with the directives therein.
The Memoranda15 dated July 20, 2009 suspended them without pay for five
days for their alleged insubordination. The Memoranda16 dated August 8,
2009 informed them of their termination from employment, effective August
15, 2009, by reason of their repeated refusal to acknowledge receipt of Echo's
memoranda and flagrant defiance to assume the duties of Delivery
Coordinators.

The Proceedings Before the LA

On August 17, 2009, the respondents filed before the NLRC a complaint
against Echo for unfair labor practice, illegal dismissal, illegal suspension,
illegal deductions and payment of money claims, damages and attorney's
fees.17 The respondents claimed that they were offered promotions, which
were mere ploys to remove them as rank-and-file employees, and oust them
as Union members.18

The petitioners, on the other hand, insisted that the respondents were merely
transferred, and not promoted. Further, the respondents arrogantly refused
to comply with Enriquez's directives. Their insubordination constituted just
cause to terminate them from employment.19

On April 20, 2010, LA Hernandez dismissed the respondents' complaint for


reasons stated below: (a) the claims of union-busting, harassment and
discrimination were not supported by evidence;20 (b) no promotions occurred
as the duties of the Delivery Supervisors/Coordinators were merely
reportorial in nature and not indicative of any authority to hire, fire or change
the status of other employees;21 and (c) Echo properly exercised its
management prerogative to order the transfer, and this was done without
intended changes in the ranks, salaries, status or places of assignment of the
respondents.22

The Proceedings Before the NLRC

The respondents filed an appeal assailing LA Hernandez's ruling. The


dispositive portion of the NLRC's Decision dated April 15, 2011 is quoted
below:

WHEREFORE, premises considered, the appeal is GRANTED. The appealed


decision of the [LA] dated April 20, 2010 is REVERSED and SET ASIDE and
a new one is entered declaring [the petitioners] guilty of unfair labor practice
and illegal dismissal of the [respondents]. [The petitioners] are ordered to
immediately reinstate [the respondents] to their previous positions without
loss of seniority rights and other privileges/benefits and to pay [the
respondents] the following:

1. full backwages from the time of their dismissal up to their actual


reinstatement;

2. the sum of P20,000.00 as moral damages[;]

3. the sum of P20,000.00 as exemplary damages; and ten [percent (10%)] of


the monetary award as attorney's fees.

All other monetary claims are dismissed for lack of substantiation.

SO ORDERED.23

In sustaining the respondents' arguments, the NLRC explained that at the


time of the farmer's dismissal, they had been employed by Echo for several
years since 2002 and 2004, respectively. There were no prior untoward
incidents. However, things changed when the Union was formed. When the
two did not agree to be transferred, they were terminated for insubordination,
a mere ploy to lend a semblance of legality to a pre-conceived management
strategy.24

The NLRC denied the petitioners' motion for reconsideration.25

The Proceedings Before the CA


The petitioners thereafter filed a Petition for Certiorari.26 In the herein
assailed Decision dated September 24, 2013, the CA affirmed in toto the
NLRC's ruling citing the following as grounds:

A transfer is a movement from one position to another which is of equivalent


rank, level or salary, without break in service. Promotion, on the other hand,
is the advancement from one position to another with an increase in duties
and responsibilities as authorized by law, and usually accompanied by an
increase in salary.

x x x There is no doubt that said position of Delivery Supervisor/Coordinator


entails great duties and responsibilities of overseeing ECHO's business and
involves discretionary powers. x x x What is important is the change in the
nature of work which resulted in an upgrade of their work condition and
increase of duties and responsibilities which constitute promotion and not a
mere transfer.

A transfer that results in promotion cannot be done without the employee's


consent since there is no law that compels an employee to accept a promotion
for the reason that a promotion is in the nature of a gift or reward, which a
person has a right to refuse. When [the respondents] refused to accept their
promotion as Delivery Supervisors/Coordinators, they were exercising a right
and they cannot be punished for it. He who uses his own legal right injures
no one. Thus, [the respondents'] refusal to be promoted was not a valid cause
for their dismissal.

Anent the award of moral damages, exemplary damages and attorney's fees,
We agree with the NLRC that [the respondents] are entitled to the same.
xxxx

x x x We agree with the NLRC that the dismissal of [the respondents] was
tainted with bad faith as they were dismissed by ECHO for refusing to accept
their promotion as Delivery Supervisor[s]/Coordinator[s]. x x x The NLRC also
found that ECHO's act of transferring [the respondents] from Forklift Operator
and Warehouse Checker x x x to Delivery Supervisors/Coordinators was
aimed to remove them among the rank-and-file employees which amounts to
union interference. Without the leadership of Cortes, as Vice-President, and
Somido, as an active member, the union would be severely weakened,
especially since most of its officers were already terminated by ECHO. xx x.27
(Citations omitted)

The petitioners filed a motion for reconsideration, which the CA denied


through the Resolution28 dated March 28, 2014.1wphi1

Issues

Unperturbed, the petitioners are now before the Court raising the issues of
whether or not:

(1) the respondents were illegally suspended and terminated, hence, entitled
to payment of their money claims, damages and attorney's fees;

(2) Echo and its officers are guilty of unfair labor practice; and
(3) Echo's officers, who are sued as nominal parties, should be held liable to
pay the respondents their money claims.29

In support thereof, the petitioners claim that the respondents' refusal to


comply with the management's transfer order constitutes just cause to
terminate the latter from employment. Echo also points out that before it
closed shop on July 6, 2011, the Union continued existing despite the
respondents' dismissal from service. Hence, there is no factual basis in the
NLRC and CA's ruling that the respondents' termination is intertwined with
union-busting.30

The petitioners further argue that the respondents failed to establish by


substantial evidence that Echo's officers, namely, Enriquez, Benedicto and
Atty. Wenceslao, acted with malice. Thus, they cannot be held liable as well.31

Corollarily, the dismissal being valid, there is no ground to grant the


respondents' prayer for reinstatement and payment of money claims and
damages.32

In their Comment,33 the respondents reiterate that their transfer/promotion


was conceived to pave the way for their eventual termination from
employment. Moreover, even before the respondents could convey their
acceptance or refusal to the transfer/promotion, they were promptly replaced
by newly-hired contractual employees.

Ruling of the Court

The Court partially grants the instant petition.


The first two issues, being interrelated, shall be discussed jointly.

The offer of transfer is, in legal contemplation, a promotion, which the


respondents validly refused. Such refusal cannot be the basis for the
respondents' dismissal from service. The finding of unfair labor practice and
the award of moral and exemplary damages do not however follow solely by
reason of the dismissal.

Article 212(13) of the Labor Code distinguishes from each other as follows the
concepts of managerial, supervisory and rank-and-file employees:

"Managerial employee" is one who is vested with the powers or prerogatives to


lay down and execute management policies and/or to hire, transfer, suspend,
lay-off, recall, discharge, assign or discipline employees. Supervisory
employees are those who, in the interest of the employer, effectively
recommend such managerial actions if the exercise of such authority is not
merely routinary or clerical in nature but requires the use of independent
judgment. All employees not falling within any of the above definitions are
considered rank-and-file employees for purposes of this Book. (Italics ours)

As to the extent of management prerogative to transfer/promote employees,


and the differences between transfer on one hand, and promotion, on the
other, Coca-Cola Bottlers Philippines, Inc. v. Del Villar34 is instructive, viz:

[L]abor laws discourage interference in employers' judgment concerning the


conduct of their business.
In the pursuit of its legitimate business interest, management has the
prerogative to transfer or assign employees from one office or area of operation
to another - provided there is no demotion in rank or diminution of salary,
benefits, and other privileges; and the action is not motivated by
discrimination, made in bad faith, or effected as a form of punishment or
demotion without sufficient cause. xx x.

x x x In the case of Blue Dairy Corporation v. National Labor Relations


Commission, we described in more detail the limitations on the right of
management to transfer employees:

x x x [I]t cannot be used as a subterfuge by the employer to rid himself of an


undesirable worker. In particular, the employer must be able to show that the
transfer is not unreasonable, inconvenient or prejudicial to the employee; nor
does it involve a demotion in rank or a diminution of his salaries, privileges
and other benefits. xxx.

xxxx

A transfer is a movement from one position to another which is of equivalent


rank, level or salary, without break in service. Promotion, on the other hand,
is the advancement from one position to another with an increase in duties
and responsibilities as authorized by law, and usually accompanied by an
increase in salary. Conversely, demotion involves a situation where an
employee is relegated to a subordinate or less important position constituting
a reduction to a lower grade or rank, with a corresponding decrease in duties
and responsibilities, and usually accompanied by a decrease in salary.35
(Citations omitted and emphasis and underscoring ours)
For promotion to occur, there must be an advancement from one position to
another or an upward vertical movement of the employee's rank or position.
Any increase in salary should only be considered incidental but never
determinative of whether or not a promotion is bestowed upon an employee.36

An employee is not bound to accept a promotion, which is in the nature of a


gift or reward. Refusal to be promoted is a valid exercise of a right.37 Such
exercise cannot be considered in law as insubordination, or willful
disobedience of a lawful order of the employer, hence, it cannot be the basis
of an employee's dismissal from service.38

In the case at bench, a Warehouse Checker and a Forklift Operator are rank-
and-file employees. On the other hand, the job of a Delivery
Supervisor/Coordinator requires the exercise of discretion and judgment from
time to time. Specifically, a Delivery Supervisor/Coordinator assigns teams to
man the trucks, oversees the loading of goods, checks the conditions of the
trucks, coordinates with account specialists in the outlets regarding their
delivery concerns, and supervises other personnel about their performance in
the warehouse. A Delivery Supervisor/Coordinator's duties and
responsibilities are apparently not of the same weight as those of a Warehouse
Checker or Forklift Operator. Hence, despite the fact that no salary increases
were effected, the assumption of the post of a Delivery
Supervisor/Coordinator should be considered a promotion. The respondents'
refusal to accept the same was therefore valid.

Notwithstanding the illegality of the respondents' dismissal, the Court finds


no sufficient basis to award moral and exemplary damages.

A dismissal may be contrary to law but by itself alone, it does not establish
bad faith to entitle the dismissed employee to moral damages. The award of
moral and exemplary damages cannot be justified solely upon the premise
that the employer dismissed his employee without just or authorized cause.39

In the instant case, the right not to accept an offered promotion pertained to
each of the respondents. However, they exhibited disrespectful behavior by
their repeated refusal to receive the memoranda issued by Echo and by their
continued presence in their respective areas without any work output.40 The
Court thus finds that although the respondents' dismissal from service for
just cause was unwarranted, there is likewise no basis for the award of moral
and exemplary damages in their favor. Echo expectedly imposed disciplinary
penalties upon the respondents for the latter's intransigence. Albeit the Court
is not convinced of the character and extent of the measures taken by Echo,
bad faith cannot be inferred solely from the said impositions.

Anent the NLRC and CA's conclusion that Echo committed unfair labor
practice, the Court disagrees.

Unfair labor practices violate the constitutional right of workers and


employees to self-organization, are inimical to the legitimate interests of both
labor and management, including their right to bargain collectively and
otherwise deal with each other in an atmosphere of freedom and mutual
respect, disrupt industrial peace and hinder the promotion of healthy and
stable labor-management relations.41

The respondents allege that their transfer/promotion was intended to deprive


the Union of leadership and membership. They claim that other officers were
already dismissed. The foregoing, however, lacks substantiation. Unfair labor
practice is a serious charge, and the respondents failed to show that the
petitioners conclusively interfered with, restrained, or coerced employees in
the exercise of their right to self-organization.
Enriquez, Benedicto and Atty. Wenceslao cannot be held personally liable for
the respondents' money claims.

Lambert Pawnbrokers and Jewelry Corporation, et al. v. Binamira42


expounds on the liabilities of corporate officers to illegally dismissed
employees. The Court declared:

As a general rule, only the employer-corporation, partnership or association


or any other entity, and not its officers, which may be held liable for illegal
dismissal of employees or for other wrongful acts. This is as it should be
because a corporation is a juridical entity with legal personality separate and
distinct from those acting for and in its behalf and, in general, from the people
comprising it. A corporation, as a juridical entity, may act only through its
directors, officers and employees. Obligations incurred as a result of the
directors' and officers' acts as corporate agents, are not their personal liability
but the direct responsibility of the corporation they represent. It is settled that
in the absence of malice and bad faith, a stockholder or an officer of a
corporation cannot be made personally liable for corporate liabilities. They are
only solidarily liable with the corporation for the illegal termination of services
of employees if they acted with malice or bad faith. In Philippine American
Life and General Insurance v. Gramaje, bad faith is defined as a state of mind
affirmatively operating with furtive design or with some motive of self-interest
or ill will or for ulterior purpose. It implies a conscious and intentional design
to do a wrongful act for a dishonest purpose or moral obliquity.43 (Citations
omitted and underlining ours)

In the instant petition, the respondents failed to specify and sufficiently prove
the alleged acts of Enriquez, Benedicto and Atty. Wenceslao from which
malice or bad faith can be concluded. Hence, there is no reason to invoke the
exception to the general rule on non-liability of corporate officers.

In lieu of actual reinstatement, the respondents are entitled to separation pay.

"In cases of illegal dismissal, the accepted doctrine is that separation pay is
available in lieu of reinstatement when the latter recourse is no longer
practical or in the best interest of the parties."44

The Court notes that the respondents were terminated from service on August
15, 2009, or more than six years ago. Their reinstatement will not be practical
and to the best interest of the parties. The Court thus finds more prudence in
awarding separation pay to the respondents equivalent to one (1) month pay
for every year of service, with a fraction of at least six (6) months considered
as one (1) whole year, from the time of their illegal dismissal up to the finality
of this Decision.

An annual interest of six percent (6%) is imposed on the monetary award.

In accordance with Nacar v. Gallery Frames,45 the Court now imposes an


interest on the monetary awards at the rate of six percent (6%) per annum
from the date of finality of this Decision until full payment

WHEREFORE, the instant petition is PARTIALLY GRANTED. The Decision and


Resolution of the Court of Appeals in CA-G.R. SP No. 121393, dated
September 24, 2013 and March 28, 2014, respectively, are MODIFIED.
The petitioner, Echo 2000 Commercial Corporation, is hereby declared guilty
of illegal dismissal. In addition to the National Labor Relations Commission's
award of attorney's fees, Echo 2000 Commercial Corporation is likewise
ORDERED to pay the respondents, Arlo C. Cortes and Dave Somido, the
following:

(a) separation pay in lieu of actual reinstatement equivalent to one (1) month
pay for every year of service, with a fraction of at least six (6) months
considered as one (1) whole year from the time of the dismissal up to the
finality of this Decision;

(b) full backwages from the time of the illegal dismissal up to the finality of
this Decision; and

(c) interest on all monetary awards at the rate of 6% per annum from the
finality of this Decision until full payment.

The amounts awarded as moral and exemplary damages by the National


Labor Relations Commission to Arlo C. Cortes and Dave Somido are however
deleted for lack of basis.

The case is REMANDED to the Labor Arbiter, who is hereby DIRECTED to


COMPUTE the monetary benefits awarded in accordance with this Decision.

SO ORDERED.
FIRST DIVISION

G.R. No. 156635, January 11, 2016

THE HONGKONG & SHANGHAI BANKING CORPORATION EMPLOYEES


UNION, MA. DALISAY P. DELA CHICA, MARVILON B. MILITANTE, DAVID Z.
ATANACIO, JR., CARMINA C. RIVERA, MARIO T. FERMIN(T), ISABELO E.
MOLO, RUSSEL M. PALMA, IMELDA G. HERNANDEZ, VICENTE M.
LLACUNA, JOSEFINA A. ORTIGUERRO, MA. ASUNCION G. KIMSENG,
MIGUEL R. SISON, RAUL P. GERONIMO, MARILOU E. CADENA, ANA N.
TAMONTE, AVELINO Q. RELUCIO, JORALYN R. GONGORA, CORAZON E.
ALBOS, ANABELLA J. GONZALES, MA. CORAZON Q. BALTAZAR, MARIA LUZ
I. JIMENEZ, ELVIRA A. ORLINA, SAMUEL B. ELLARMA, ROSARIO A.
FLORES, EDITHA L. BROQUEZA, REBECCA T. FAJARDO, MA. VICTORIA C.
LUNA, MA. THERESA G. GALANG, BENIGNO V. AMION, GERARDO J. DE
LEON, ROWENA T. OCAMPO, MALOU P. DIZON, RUBEN DE C. ATIENZA,
MELO E. GABA, HERNAN B. CAMPOSANTO, NELIA D. M. DERIADA, LOLITO
L. HILIS, GRACE C. MABUNAY, FE ESPERANZA C. GERONG, MANUEL E.
HERRERA, JOSELITO J. GONZAGA, ULDARTCO D. PEDIDA, ROSALINA
JULIET B. LOQUELLANO, MARCIAL F. GONZAGA, MERCEDES R. PAULE,
JOSE TEODORO A. MOTUS, BLANCHE D. MOTUS, DAISY M. FAGUTAO,
ANTONIO A. DEL ROSARIO, EMMANUEL JUSTIN S. GREY, FRANCISCA DEL
MUNDO, JULIETA A. CRUZ, RODRIGO J. DURANO, CATALINA R. YEE,
MENANDRO CALIGAGAN, MAIDA M. SACRO MILITANTE, LEONILA M.
PEREZ, AND EMMA MATEO, Petitioners, v. NATIONAL LABOR RELATIONS
COMMISSION AND THE HONGKONG & SHANGHAI BANKING
CORPORATION, LTD., Respondents.

DECISION
BERSAMIN, J.:

A strike staged without compliance with the requirements of Article 2631 of


the Labor Code is illegal, and may cause the termination of the employment
of the participating union officers and members. However, the liability for the
illegal strike is individual, not collective. To warrant the termination of an
officer of the labor organization on that basis, the employer must show that
the officer knowingly participated in the illegal strike. An ordinary striking
employee cannot be terminated based solely on his participation in the illegal
strike, for the employer must further show that the employee committed
illegal acts during the strike.

The Case

Under appeal is the decision promulgated on January 31, 2002 by the Court
of Appeals (CA) in CA-GR. SP No. 56797 entitled The Hongkong & Shanghai
Banking Corporation Employees Union, et al. v. National Labor Relations
Commission and The Hongkong & Shanghai Banking Corporation, Ltd.,2
which disposed as follows:

WHEREFORE, the instant petition is DISMISSED and the questioned decision


of the National Labor Relations Commission is AFFIRMED with
MODIFICATION.

Private respondent Hongkong & Shanghai Banking Corporation is ordered to


pay each of the following: Isabelo Molo, Elvira Orlina, Samuel Ellarma,
Rosario Flores, Rebecca Fajardo, Ma. Victoria Luna, Malou Dizon, Ruben
Atienza, Melo Gaba, Nelia Deriada, Fe Esperanza Gerong, Manuel Herrera,
Rosalina Juliet Loquellano, Mercedes Paule, Binche Motus, Antonio del
Rosario, Francisca del Mundo and Maida Militante:

(a) full backwages from the time of their dismissal in 1993 up to the time this
decision becomes final; and

(b) separation pay equivalent to one-half (1/2) month salary for every year of
service up to 1993.

SO ORDERED.3

Also under review is the resolution promulgated on December 9, 2002


whereby the CA denied the petitioners' motion for reconsideration.4

Antecedents

In the period material to this case, petitioner Hongkong & Shanghai Banking
Corporation Employees Union (Union) was the duly recognized collective
bargaining agent of the rank-and-file employees of respondent Hongkong &
Shanghai Banking Corporation (HSBC). A collective bargaining agreement
(CBA) governed the relations between the Union and its members, on one
hand, and HSBC effective April 1, 1990 until March 31, 1993 for the non-
representational (economic) aspect, and effective April 1, 1990 until March
31, 1995 for the representational aspect.5 The CBA included a salary
structure of the employees comprising of grade levels, entry level pay rates
and the individual pays depending on the length of service.6

On January 18, 1993, HSBC announced its implementation of a job


evaluation program (JEP) retroactive to January 1, 1993. The JEP consisted
of a job designation per grade level with the accompanying salary scale
providing for the minimum and maximum pay the employee could receive per
salary level.7 By letter dated January 20, 1993,8 the Union demanded the
suspension of the JEP, which it labeled as an unfair labor practice (ULP). In
another letter dated January 22, 1993, the Union informed HSBC that it
would exercise its right to concerted action. On the same day of January 22,
1993, the Union members started picketing during breaktime while wearing
black hats and black bands on their arms and other appendages.9 In its letter
dated January 25, 1993, HSBC responded by insisting that the JEP was an
express recognition of its obligation under the CBA.10 The Union's concerted
activities persisted for 11 months,11 notwithstanding that both sides had
meanwhile started the re-negotiation of the economic provisions of their
CBA12 on March 5, 1993.13 The continued concerted actions impelled HSBC
to suspend the negotiations on March 19, 1993,14 and to issue memoranda,
warnings and reprimands to remind the members of the Union to comply with
HSBC's Code of Conduct.

Due to the sustained concerted actions, HSBC filed a complaint for ULP in
the Arbitration Branch of the National Labor Relations Commission (NLRC),
docketed as NLRC-NCR Case No. 00-04-02481-93. The Labor Arbiter's
decision was appealed to the NLRC whose disposition to remand the case to
the Labor Arbiter for further proceedings was in turn assailed. Ultimately, in
G.R. No. 125038 entitled The Hongkong & Shanghai Banking Corporation
Employees Union v. National Labor Relations Commission and The Hongkong
& Shanghai Banking Corporation, Ltd., the Court affirmed the disposition of
the NLRC, and directed the remand of the case to the Labor Arbiter for further
proceedings.15

The Union conducted a strike vote on December 19, 1993 after HSBC
accorded regular status to Patrick King, the first person hired under the JEP.
The majority of the members of the Union voted in favor of a strike.16 The
following day, the Union served its letter on HSBC in protest of the continued
implementation of the JEP, and insisted that HSBC's modification of the
salary structure under the JEP constituted ULP.

On December 22, 1993, at around 12:30 p.m., the Union's officers and
members walked out and gathered outside the premises of HSBC's offices on
Ayala Avenue, Makati and Ortigas Center, Pasig.17 According to HSBC, the
Union members blocked the entry and exit points of the bank premises,
preventing the bank officers, including the chief executive officer, from
entering and/or leaving the premises.18 This prompted HSBC to resort to a
petition for habeas corpus on behalf of its officials and employees thus
prevented from leaving the premises, whom it airlifted on December 24, 1993
to enable them to leave the bank premises.19

On December 24, 1993, HSBC filed its complaint to declare the strike
illegal.20 The HSBC also petitioned for injunction (with prayer for temporary
restraining order (TRO)/writ of prohibitory injunction) in the NLRC, which
issued the TRO on January 6, 1994, and the writ of preliminary injunction on
January 31, 1994.21 On November 22, 2001, the Court upheld the actions
taken in that case in The Hongkong and Shanghai Banking Corporation
Employees Union v. National Labor Relations Commission and The Hongkong
and Shanghai Banking Corporation Limited.22

In the meantime, HSBC issued return-to-work notices to the striking


employees on December 22, 1993. Only 25 employees complied and returned
to work. Due to the continuing concerted actions, HSBC terminated the
individual petitioners on December 27, 1993.23 The latter, undeterred, and
angered by their separation from work, continued their concerted activities.

Ruling of the Labor Arbiter


On August 2, 1998, Labor Arbiter (LA) Felipe P. Pati declared the strike illegal
for failure of the Union to file the notice of strike with the Department of Labor
and Employment (DOLE); to observe the cooling-off period; and to submit the
results of the strike vote to the National Conciliation and Mediation Board
(NCMB) pursuant to Article 263 of the Labor Code. He concluded that because
of the illegality of the strike the Union members and officers were deemed to
have lost their employment status. Lie disposed thusly:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. The 22 December 1993 strike conducted by the union is hereby declared


illegal;

2. The following Union officers and members who participated in the 22


December 1993 strike are hereby deemed to have lost their employment
status as of that date, namely: Dalisay Dela Chica, Isabelo Molo, Danilo
Alonso, Alvar Rosales, Russel Palma, Imelda Hernandez, Vicente Llacuna,
Josefina Ortiguero, Agustin Iligan, Ma. Asuncion Kimseng, Miguel Sison, Raul
Geronimo, Marilou Cadena, Ana Tamonte, Yolanda Enciso, Avelino Relucio,
Joralyn Gongora, Corazon Albos, Anabella Gozales, Ma. Corazon Baltazar,
Maria Luz Jimenez, Concordio Madayag, Elvira Orlina, Ma. Lourdes Austria,
Josephine Landas, Samuel Ellarma, Rosario Flores, Editha Broqueza, Marina
Sal vac ion, Ma. Cecilia Ocampo, Rebecca Fajardo, Ma. Victoria Luna, Ma.
Theresa Ofelia Galang, Benigno Amion, Mercedes Castro, Gerardo de Leon,
Rowena Ocampo, Malou Dizon, Juliet Dacumos, Blandina dela Pena, Ruben
Atienza, Ma. Fe Temporal, Mcllo Gaba, Herman Camposanto, Nelia Deriada,
Lolito Hilis, Ma. Dulce Abellar, Grace Mabunay, Fe Esperanza Gerong, Romeo
Tumlos, Sonia Argos, Manuel Herrera, Joselito Gonzaga, Uldarico Pedida,
Cynthia Calangi, Rosalina Loquellano, Marcial Gonzaga, Mercedes Paule, Jess
Nicolas, Teodoro Motus, Blanche Motus, Daisy Martinez Fagutao, Antonio del
Rosario, Emmanuel Justin Grey, Francisca del Mundo, Juliet Cruz, Rodrigo
Durano, Carmina Rivera, David Atanacio, Jr., Ofelia Rabuco, Alfred Tan Jr.,
Catalina Yee, Menandro Caligaga, Melorio Maida Militante, Antonio Marilon,
and Leonila Peres, Emma Mateo, Felipe Vital, Jr., Mario Fermin, and Virgilio
Reli;

3. The Union, its officers and members are hereby held jointly and severally
liable to pay the Bank the amount of P45,000.00 as actual damages.

All the other claims for moral and exemplary damages are denied for lack of
merit.

SO ORDERED.24

Decision of the NLRC

On appeal, the NLRC modified the ruling of LA Pati, and pronounced the
dismissal of the 18 Union members unlawful for failure of LISBC to accord
procedural due process to them, viz.:

xxx [W]e note, however, that as per the submission of the parties, not all the
respondents (members) have been identified by complainant as having
violated the law on free ingress and egress (i.e., Article 264[e]). A meticulous
review of the testimonies given during trial and a comparison of the same
show that 25 respondents were not named by complainant's witnesses.

Of the 25, 6 of them (Rabuco, Salvacion, Castro, Dacumos, Calangi and


Nicolas) have already settled with the complainant during the pendency of the
appeal. Of the remaining 19, one respondent is a union officer (Rivera) while
the remaining 18 respondents (Molo, Orlina, Ellarma, Flores, Fajardo, Luna,
Dizon, Atienza, Gaba, Deriada, Gerong, Herrera, Loquellano, Paule, Motus,
Del Rosario, Mundo and Militante) are neither officers nor members who have
been pinpointed as having committed illegal act[s]. We, therefore, disagree
with the Labor Arbiter's generalization that these 18 respondents have
similarly lost their employment status simply because they participated in or
acquiesced to the holding of the strike.

xxxx

Only insofar as the xxx 18 respondents are concerned, We rule that


complainant did fail to give them sufficient opportunity to present their side
and adequate opportunity to answer the charges against them. More was
expected from complainant and its observance of due process may not be
dispensed with no matter how brazen and blatant the violation or its rules
and regulations may have perceived. The twin requirement of notice and
hearing in termination cases are as much indispensable and mandatory as
the procedural requirements enumerated in Article 262 of the Labor Code. In
this case, We cannot construe complainant's notice to return-to-work as
substantial compliance with due process requirement.

Contrary however to respondents' insistence that complainant failed to


observe due process in the case of the 18 respondents does not mean that
they are automatically entitled to backwages or reinstatement. Consistent
with decided cases, these respondents are entitled only to indemnity for
complainant's omission, specifically to the amount of P5,000.00 each, xxx

As a final word, and only as regard these 18 respondents, We take note of the
fact that they have remained silent spectators, if not mere by-standers, in the
illegal strike and illegal acts committed by the other individual respondents,
and since the grounds for which they have been terminated do not involve
moral turpitude, the consequences for their acts must nevertheless be
tempered with some sense of compassion. Consistent with prevailing
jurisprudence and in the interest of social justice, We find the award of
separation pay to each of the 18 respondents equivalent to one-half (1/2)
month salary for every year of service as equitable and proper.

XXXX

WHEREFORE, the decision dated 26 August 1998 is hereby AFFIRMED with


the modification that complainant is ordered to pay (a) P5,000.00 and (b) one-
half (1/2) month salary for every year of service up to December 1993 to each
of the following respondents: Isabelo Molo, Elvira Orlina, Samuel Ellarma,
Rosario Flores, Rebecca Fajardo, Ma. Victoria Luna, Malou Dizon, Ruben
Atienza, Melo Gaba, Nelia Deriada, Fe Esperanza Gerong, Manuel Herrera,
Rosalina Juliet Loquellano, Mercedes Paule. Binche Motus, Antonio del
Rosario, Francisca del Mundo and Maida Militante.

SO ORDERED.25

The petitioners filed their motion for reconsideration, but the NLRC denied
their motion.26

Judgment of the CA

On certiorari, the CA, through the assailed judgment promulgated on January


31, 2002,27 deleted the award of indemnity, but ordered HSBC to pay
baekwages to the 18 employees in accordance with Serrano v. National Labor
Relations Commission,28 to wit:
In Ruben Serrano v. NLRC and Isetcmn Department Store xxx, the Court
ruled that an employee who is dismissed, whether or not for just or authorized
cause but without prior notice of his termination, is entitled to full baekwages
from the time he was terminated until the decision in his case becomes final,
when the dismissal was for cause; and in case the dismissal was without just
or valid cause, the backwages shall be computed from the time of his
dismissal until his actual reinstatement. In the case at bar, where the
requirement of notice and hearing was not complied with, the aforecited
doctrine laid down in the Serrano case applies.29

On motion for reconsideration, the CA reiterated its judgment, and denied


HSBC's motion to delete the award of backwages.30

Hence, this appeal by petition for review on certiorari.

Pending the appeal, petitioners Elvira A. Orlina, Rosario A. Flores, Ma.


Victoria C. Luna, Malou Dizon, Fe Esperanza Gerong, Francisca del Mundo,
and Ruben Atienza separately presented motions to withdraw as petitioners
herein by virtue of their having individually executed compromise
agreements/quitclaims with HSBC.31 The Court granted all the motions to
withdraw;32 hence, this adjudication relates only to the remaining
petitioners.

Issues

The remaining petitioners raise the following grounds in support of their


appeal, namely:
I

THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN


HOLDING THAT ALL THE PETITIONERS WERE VALIDLY DISMISSED

The Court of Appeals cannot selectively apply the right to due process in
determining the validity of the dismissal of the employee

The refusal to lift the strike upon orders of the HSBC is not just cause for the
dismissal of the employees

The HSBC is liable for damages for having acted in utter bad faith by
dismissing the petitioners after having previously submitted the dispute to
the NLRC

Union officers who did not knowingly participate in the strike do not lose their
employment status

The responsibility for illegal acts committed in the course of a strike is


individual and not collective
F

The January 5, 1994 incident does not warrant the dismissal of the
petitioners involved thereat

The penalty, if any, imposable on union officers should be suspension and


not dismissal

II

THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN


HOLDING THAT THE STRIKE WAS ILLEGAL

The test of good faith laid down by this Honorable Court is whether the union
is of the reasonable belief that the management was committing an unfair
labor practice

The decision as to when to declare the strike is wholly dependent on the


union, and the same cannot negate good faith

The Court of Appeals committed grave error in concluding that this Court had
already ruled on the validity of the implementation of the Job Evaluation
Program and no longer considered the evidence presented by petitioners to
establish unfair labor practice on the part of the HSBC

The doctrine automatically making a strike illegal due to non-compliance with


the mandatory procedural requirements needs to be revisited

The petitioners argue that they were illegally dismissed; that the CA erred in
selectively applying the twin notice requirement; that in the case of the Union
officers, there must be a prior showing that they had participated in the illegal
strike before they could be terminated from employment, but that HSBC did
not make such showing, as, in fact, petitioners Carmina C. Rivera and Mario
T. Fermin were on leave during the period of the strike;33 that they could not
be dismissed on the ground of insubordination or abandonment in view of
participation in a concerted action being a guaranteed right; that their
participation in the concerted activities out of their sincere belief that HSBC
had committed ULP in implementing the JEP constituted good faith to be
appreciated in their favor; that their actions merited only their suspension at
most, not the extreme penalty of dismissal; and that the prevailing rule that
non-compliance with the procedural requirements under the Labor Code
before staging a strike would invalidate the strike should be revisited because
the amendment under Batas Pambansa Blg. 227 indicated the legislative
intent to ease the restriction on the right to strike.

HSBC counters that the appeal raises factual issues already settled by the
CA, NLRC, and the LA, rendering such issues inappropriate for determination
in this appeal; that it was not liable for illegal dismissal because the
petitioners had willfully staged their illegal strike without prior compliance
with Article 263 of the Labor Code;34 that the procedural requirements of
Article 263 of the Labor Code were mandatory and indispensable conformably
with Article 26435 of the Labor Code, which, in relation to Article 263(c), (d)
and (f), expressly made such non-compliance a prohibited activity; that for
this reason Article 264 penalized the Union officers who had participated in
the illegal strike with loss of their employment status;36 that good faith could
not be accorded to the petitioners because aside from the non-compliance
with the mandatory procedure, they did not present proof to show that the
strike had been held for a lawful purpose, or that the JEP had amounted to
ULP, or that they had made a sincere effort to settle the disagreement;37 and
that as far as the 18 employees were concerned, they were entitled only to
nominal damages, not backwages, following the ruling in Agabon v. National
Labor Relations Commission38 that meanwhile modified the doctrine in
Serrano v. National Labor Relations Commission.39

Two main issues to be resolved are, therefore, namely: (1) whether the strike
commenced on December 22, 1993 was lawfully conducted; and (2 whether
the petitioners were illegally dismissed.

Ruling of the Court

We PARTLY GRANT the petition for review on certiorari.

Non-compliance with Article 263 of the

Labor Code renders a labor strike illegal

The right to strike is a constitutional and legal right of all workers because
the strike, which seeks to advance their right to improve the terms and
conditions of their employment, is recognized as an effective weapon of labor
in their struggle for a decent existence. However, the right to strike as a means
for the attainment of social justice is never meant to oppress or destroy the
employers. Thus, the law prescribes limits on the exercise of the right to
strike.40

Article 263 of the Labor Code specifies the limitations on the exercise of the
right to strike, viz.:

Article 263. Strikes, picketing, and lockouts, x x x

xxxx

(c) In cases of bargaining deadlocks, the duly certified or recognized


bargaining agent may file a notice of strike or the employers may file a notice
of lockout with the [Department] at least 30 days before the intended date
thereof. In cases of unfair labor practices, the period of notice shall be 15 days
and in the absence of a duly certified or recognized bargaining agent, the
notice of strike may be filed by any legitimate labor organization in behalf of
its members. However, in case of dismissal from employment of union officers
duly elected in accordance with the union constitution and by-laws, which
may constitute union busting, where the existence of the union is threatened,
the 15-day cooling off period shall not apply and the union may take action
immediately.

(d) The notice must be in accordance with such implementing rules and
regulations as the [Secretary] of Labor and Employment may promulgate.
(e) During the cooling-off period, it shall be the duty of the [Department] to
exert all efforts at mediation and conciliation to effect a voluntary settlement.
Should the dispute remain unsettled until the lapse of the requisite number
of clays from the mandatory filing of the notice, the labor union may strike or
the employer may declare a lockout.

(f) A decision to declare a strike must be approved by a majority of the total


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

xxxx

The procedural requirements for a valid strike are, therefore, 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.41
According to the CA, the petitioners neither filed the notice of strike with the
DOLE, nor observed the cooling-off period, nor submitted the result of the
strike vote. Moreover, although the strike vote was conducted, the same was
done by open, not secret, balloting,42 in blatant violation of Article 263 and
Section 7, Rule XIII of the Omnibus Rules Implementing the Labor Code.43 It
is not amiss to observe that the evident intention of the requirements for the
strike-notice and the strike-vote report is to reasonably regulate the right to
strike for the attainment of the legitimate policy objectives embodied in the
law.44 As such, the petitioners committed a prohibited activity under Article
264(a) of the Labor Code, and rendered their strike illegal.

We underscore that the language of the law itself unmistakably bears out the
mandatory character of the limitations it has prescribed, to wit:

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 [Department], (emphasis
supplied)

xxxx

Accordingly, the petitioners' plea for the revisit of the doctrine to the effect
that the compliance with Article 263 was mandatory was entirely
unwarranted. It is significant to remind that the doctrine has not been
established by judicial declaration but by congressional enactment. Verba
legis non est recedendum. The words of a statute, when they are clear, plain
and free from ambiguity, must be given their literal meaning and must be
applied without interpretation.45 Had the legislators' intention been to relax
this restriction on the right of labor to engage in concerted activities, they
would have stated so plainly and unequivocally.

II

Commission of unlawful acts during

the strike further rendered the same illegal

The petitioners insist that all they did was to conduct an orderly, peaceful,
and moving picket. They deny employing any act of violence or obstruction of
HSBC's entry and exit points during the period of the strike.

The contrary was undeniably true. The strike was far from orderly and
peaceful. HSBC's claim that from the time when the strike was commenced
on December 22, 1993 the petitioners had on several instances obstructed
the ingress into and egress from its offices in Makati and in Pasig was not
competently disputed, and should thus be accorded credence in the light of
the records. We agree with HSBC, for all the affidavits46 and testimonies of
its witnesses,47 as well as the photographs48 and the video recordings49
reviewed by LA Pati depicted the acts of obstruction, violence and intimidation
committed by the petitioners during their picketing. It was undeniable that
such acts of the strikers forced HSBC's officers to resort to unusual means of
gaining access into its premises at one point.50 In this connection, LA Pati
even observed as follows:

[I]t must be pointed out that the Bank has shown by clear and indubitable
evidence that most of the respondents have actually violated the prescription
provided for in paragraph (b) of Article 264 on free ingress and egress. The
incident depicted in the video footage of 05 January 1994, which has been
viewed several times during the trial and even privately, demonstrates beyond
doubt that the picket was a non-moving, stationary one - nothing less but a
barricade. This office is more than convinced that the respondents, at least
on that day, have demonstrated an abnormally high degree of hatred and
anger at the Bank and its officers (including the Bank's chief executive officer
who fell to the ground as a result of the pushing and shoving) leading them
to do anything to carry out their resolve not to let anymore inside the Bank.
Additionally, as observed by this Labor Arbiter, the tensed and disquieting
relation between the parties became all the more apparent during the actual
hearings as clearly evident from the demeanor and actuations of the
respondents.51 (Emphasis supplied)

The situation during the strike actually went out of hand because of the
petitioners' illegal conduct, compelling HSBC to secure an injunction from the
NLRC as well as to file its petition for habeas corpus in the proper court in
the interest of its trapped officers and employees; and at one point to lease an
helicopter to extract its employees and officers from its premises on the eve of
Christmas Day of 1993.

For sure, the petitioners could not justify their illegal strike by invoking the
constitutional right of labor to concerted actions. Although the Constitution
recognized and promoted their right to strike, they should still exercise the
right within the bounds of law.52 Those bounds had been well-defined and
well-known. Specifically, Article 264(e) of the Labor Code expressly enjoined
the striking workers engaged in picketing from committing any act of violence,
coercion or intimidation, or from obstructing the free ingress into or egress
from the employer's premises for lawful purposes, or from obstructing public
thoroughfares.53 The employment of prohibited means in carrying out
concerted actions injurious to the right to property of others could only render
their strike illegal. Moreover, their strike was rendered unlawful because their
picketing which constituted an obstruction to the free use of the employer's
property or the comfortable enjoyment of life or property, when accompanied
by intimidation, threats, violence, and coercion as to constitute nuisance,
should be regulated.54 In fine, the strike, even if justified as to its ends, could
become illegal because of the means employed, especially when the means
came within the prohibitions under Article 264(e) of the Labor Code:55

III

Good faith did not avail because of the

patent violation of Article 263 of the Labor Code

The petitioners assert their good faith by maintaining that their strike was
conducted out of their sincere belief that HSBC had committed ULP in
implementing the JEP. They had also hoped that HSBC would be willing to
negotiate matters related to the JEP considering that the economic aspect of
the CBA was set to expire on March 31, 1993.

We rule out good faith on the part of the petitioners.

The petitioners' disregard of the procedural requirements for conducting a


valid strike negated their claim of good faith. For their claim to be upheld, it
was not enough for them to believe that their employer was guilty of ULP, for
they must also sufficiently show that the strike was undertaken with a
modicum of obeisance to the restrictions on their exercise of the right to strike
prior to and during its execution as prescribed by the law. They did not
establish their compliance with the requirements specifically for the holding
of the strike vote and the giving of the strike notice.56
The petitioners should entirely bear the consequence of their non-compliance
with the legal requirements. As we said in Pilipino Telephone Corporation v.
Pilipino Telephone Employees Association (PILTEA):57

[W]e do not find any reason to deviate from our rulings in Gold City Integrated
Port Service, Inc. and Nissan Motors Philippines, Inc. It bears emphasis that
the strike staged by the Union in the instant case was illegal for its procedural
infirmities and for defiance of the Secretary's assumption order. The CA, the
NLRC and the Labor Arbiter were unanimous in finding that bad faith existed
in the conduct of the subject strike. The relevant portion of the CA Decision
states:

xxx We cannot go to the extent of ascribing good faith to the means taken in
conducting the strike. The requirement of the law is simple, that is 1. Give
a Notice of Strike; 2. Observe the cooling period; 3. Observe the mandatory
seven day strike ban; 3. If the act is union busting, then the union may strike
doing away with the cooling-off period, subject only to the seven-day strike
ban. To be lawful, a strike must simply have a lawful purpose and should be
executed through lawful means. Here, the union cannot claim good faith in
the conduct of the strike because, as can be gleaned from the findings of the
Labor Arbiter, this was an extensively coordinated strike having been
conducted all throughout the offices of PILTEL all over the country. Evidently,
the strike was planned. Verily, they cannot now come to court hiding behind
the shield of "good faith." Be that as it may, petitioners claim good faith only
in so far as their grounds for the strike but not on the conduct of the strike.
Consequently, they still had to comply with the procedural requirements for
a strike, which, in this case, they failed to do so.58

IV

The finding on the illegal strike did not justify the


wholesale termination of the strikers from employment

The next issue to resolve is whether or not HSBC lawfully dismissed the
petitioners for joining the illegal strike.

As a general rule, the mere finding of the illegality of the strike does not justify
the wholesale termination of the strikers from their employment.59 To avoid
rendering the recognition of the workers' right to strike illusory, the
responsibility for the illegal strike is individual instead of collective.60 The last
paragraph of Article 264(a) of the Labor Code defines the norm for terminating
the workers participating in an illegal strike, viz.:

Article 264. Prohibited Activities -xxx

xxxx

Any worker whose employment has been terminated as a consequence of any


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

Conformably with Article 264, we need to distinguish between the officers and
the members of the union who participate in an illegal strike. The officers may
be deemed terminated from their employment upon a finding of their knowing
participation in the illegal strike, but the members of the union shall suffer
the same fate only if they are shown to have knowingly participated in the
commission of illegal acts during the strike. Article 264 expressly requires
that the officer must have knowingly participated in the illegal strike. We have
explained this essential element in Club Filipino, Inc. v. Bautista,61 thusly:

Note that the verb "participates" is preceded by the adverb "knowingly." This
reflects the intent of the legislature to require "knowledge" as a condition sine
qua non before a union officer can be dismissed from employment for
participating in an illegal strike. The provision is worded in such a way as to
make it very difficult for employers to circumvent the law by arbitrarily
dismissing employees in the guise of exercising management prerogative. This
is but one aspect of the State's constitutional and statutory mandate to
protect the rights of employees to self-organization.62

The petitioners assert that the CA erroneously affirmed the dismissal of


Carmina Rivera and Mario Fermin by virtue of their being officers of the Union
despite lack of proof of their having participated in the strike.

The assertion is partly correct.

In the case of Fermin, HSBC did not satisfactorily prove his presence during
the strike, much less identify him as among the strikers. In contrast, Union
president Ma. Dalisay dela Chica testified that Fermin was not around when
the Union's Board met after the strike vote to agree on the date of the strike.63
In that regard, Corazon Fermin, his widow, confirmed the Union president's
testimony by attesting that her husband had been on leave from work prior
to and during the strike because of his heart condition.64 Although Corazon
also attested that her husband had fully supported the strike, his extending
moral support for the strikers did not constitute sufficient proof of his
participation in the strike in the absence of a showing of any overt
participation by him in the illegal strike. The burden of proving the overt
participation in the illegal strike by Fermin solely belonged to HSBC, which
did not discharge its burden. Accordingly, Fermin, albeit an officer of the
Union, should not be deemed to have lost his employment status.

However, the dismissal of Rivera and of the rest of the Union's officers,
namely: Ma. Dalisay dela Chica, Marvilon Militante and David Atanacio, is
upheld. Rivera admitted joining the picket line on a few occasions.65 Dela
Chica, the Union president, had instigated and called for the strike on
December 22, 1993.66 In addition, HSBC identified Dela Chica67 and
Militante68 as having actively participated in the strike. Their responsibility
as the officers of the Union who led the illegal strike was greater than the
responsibility of the members simply because the former had the duty to guide
their members to obey and respect the law.69 When said officers urged and
made their members violate the law, their dismissal became an appropriate
penalty for their unlawful act.70 The law granted to HSBC the option to
dismiss the officers as a matter of right and prerogative.71

Unlike the Union's officers, the ordinary striking members could not be
terminated for merely taking part in the illegal strike. Regardless of whether
the strike was illegal or not, the dismissal of the members could be upheld
only upon proof that they had committed illegal acts during the strike. They
must be specifically identified because the liability for the prohibited acts was
determined on an individual basis.72 For that purpose, substantial evidence
available under the attendant circumstances justifying the penalty of
dismissal sufficed.73

We declare the illegality of the termination of the employment of the 18


members of the Union for failure of HSBC to prove that they had committed
illegal acts during the strike. We also declare that Daisy Fagutao was
unlawfully dismissed because HSBC did not adduce substantial evidence
establishing her presence and her commission of unlawful acts during the
strike.

We clarify that the 18 employees, including Fagutao and Union officer Fermin,
were illegally dismissed because of lack of any valid ground to dismiss them,
and for deprivation of procedural due process. Thus, we take exception to that
portion of the NLRC ruling that held:

We here note that all of the herein named respondents were terminated by
complainant for reasons other than their holding of an participation in the
illegal strike. Specifically, the grounds for their termination were enumerated
in the notices of termination sent out by complainant as follows:
abandonment, insubordination and seriously hampering operations. To Our
mind, the complainant in the exercise of its management prerogative, had
every reason to discipline these respondents for their disregard of the
complainant's return-to-work order and for the damage sustained by reason
thereof. Although these 18 respondents did not commit any illegal act during
the strike, We can not simply ignore the fact that they nonetheless breached
complainant's rules and regulations and which acts serve as valid causes to
terminate their employment. These respondents took a risk when they refused
to heed complainant's lawful order and knowingly caused damage and
prejudice to complainant's operations; they should be prepared to take the
consequences and be held accountable for their actions. Whether or not
complainant observed due process prior to the termination of these
respondents is however a totally different matter.74

We hold that said employees' right to exercise their right to concerted activities
should not be defeated by the directive of HSBC for them to report back to
work. Any worker who joined the strike did so precisely to assert or improve
the terms and conditions of his work.75 Otherwise, the mere expediency of
issuing the return to work memorandum could suffice to stifle the
constitutional right of labor to concerted actions. Such practice would vest in
the employer the functions of a strike breaker,76 which is prohibited under
Article 264(c) of the Labor Code.

The petitioners' refusal to leave their cause against HSBC constituted neither
insubordination nor abandonment. For insubordination to exist, the order
must be: (1) reasonable and lawful; (2) sufficiently known to the employee;
and (3) in connection to his duties.77 None of these elements existed in this
case.

As to abandonment, two requirements need to be established, namely: (1) the


failure to report for work or absence must be without valid or justifiable
reason; and (2) there must be a clear intention to sever the employer-employee
relationship. The second element is the more decisive factor and must be
manifested by overt acts.78 In that regard, the employer carries the burden
of proof to show the employee's deliberate and unjustified refusal to resume
his employment without any intention of returning.79 However, the
petitioners unquestionably had no intention to sever the employer-employee
relationship because they would not have gone to the trouble of joining the
strike had their purpose been to abandon their employment.80

Moreover, we cannot subscribe to the view that the striking employees should
be dismissed for having seriously hampered and damaged HSBC's operations.
In this aspect of the case, HSBC did not discharge its burden to prove that
the acts of the employees constituted any of the just causes under the Labor
Code or were prohibited under the company's code of conduct as to warrant
their dismissal.
V

Non-compliance with due process resulted

in illegal dismissal; the employer's liability

depended on the availing circumstances

While Article 264 authorizes the termination of the union officers and
employees, it does not remove from the employees their right to due process.
Regardless of their actions during the strike, the employees remain entitled
to an opportunity to explain their conduct and why they should not be
penalized. In Suico v. National Labor Relations Commission,81 we have
reiterated the need for the employers to comply with the twin-notice
requirement despite the cause for the termination arising from the
commission of the acts prohibited by Article 264, thus:

Art. 277(b) in relation to Art. 264(a) and (e) recognizes the right to due process
of all workers, without distinction as to the cause of their termination. Where
no distinction is given, none is construed. Hence, the foregoing standards of
due process apply to the termination of employment of Suico, et al. even if the
cause therefor was their supposed involvement in strike-related violence
prohibited under Art. 264 (a) and (e).82

Consequently, failure of the employer to accord due process to its employees


prior to their termination results in illegal dismissal.

The petitioners maintain that the CA applied the twin-notice requirement in


favor of the 18 employees. HSBC disagrees, claiming instead that the award
of backwages in favor of said employees should be modified following Agabon.
We partially agree with both parties.

Article 277(b)83 of the Labor Code mandates compliance with the twin-notice
requirement in terminating an employee, viz.:

Article 277. Miscellaneous Provisions. -

xxxx

(b) Subject to the constitutional right of workers to security of tenure and their
right to be protected against dismissal except for a just and authorized cause
and without prejudice to the requirement of notice under Article 283 of this
Code, the employer shall furnish the worker whose employment is sought to
be terminated a written notice containing a statement of the causes for
termination and shall afford the latter ample opportunity to be heard and to
defend himself with the assistance of his representative, if he so desires, in
accordance with company rules and regulations promulgated pursuant to
guidelines set by the Department of Labor and Employment, x x x (Emphasis
supplied)

In King of Kings Transport, Inc. v. Mamac,84 we have laid down the contents
of the notices to be served upon an employee prior to termination, as follows:

(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. 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.

xxxx

(3) After determining that termination of employment is justified, the


employers shall serve the employees a written notice of termination indicating
that: (1) all circumstances involving the charge against the employees have
been considered; and (2) grounds have been established to justify the
severance of their employment.85 (Emphasis supplied)

HSBC admitted issuing two pro forma notices to the striking employees. The
first notice, sent on December 22, 1993, reads as follows:

Re: NOTICE OF RETURN TO WORK

__________________________________________________

On ___________________ at ________ o'clock in the morning/afternoon, you


"walked-out" by leaving your assigned work station without prior
permission/leave during work hours.
You arc hereby directed to report back for work at the start of banking hours
on the day immediately following knowledge or receipt of this notice. Should
you report for work no disciplinary action shall be imposed on you. Ibis is
without prejudice to any action the Bank may take against the Union.

Should you fail to report back for work within the period abovestated, the
Bank shall be forced to terminate your employment and take all appropriate
measures to continue serving its clients.86

As the notice indicates, HSBC did not fully apprise the strikers of the ground
under the Labor Code that they had supposedly violated. It also thereby
deprived them the ample opportunity to explain and justify their actions.
Instead, it manifested therein its firm resolve to impose the extreme penalty
of termination should they not comply with the order. Plainly, the tenor of the
notice was short of the requirements of a valid first notice.

The second notice was as follows:

Re: NOTICE OF TERMINATION

__________________________________________________________

On_________ , 1993, you and a majority of the rank-and-file staff "walked out"
by leaving your respective work stations without prior leave and failed to
return.

You were directed to report back for work when a copy of the Bank's
Memorandum/Notice to Return to Work dated________________ 1993 was:
1. [ ] Posted on the Bank's premises on_______________

2. [ ] served on your (sic) personally on____________________.

3. [ ] delivered to your last known address on file with the Bank and received
by you (your representative) on

Despite being directed to return to work, you have failed to comply.

Your "walk-out" is an illegal act amounting to abandonment, insubordination,


and seriously hampering and damaging the bank's operations. Consequently,
your employment with the Bank is terminated effective ____________________,
1993.87

The second notice merely ratified the hasty and unilateral decision to
terminate the petitioners without the benefit of a notice and hearing. Hence,
this notice should be struck down for having violated the right of the affected
employees to due process.

The failure by HSBC to strictly observe the twin-notice requirement resulted


in the illegal dismissal. However, the extent of its liability should depend on
the distinct circumstances of the employees.

HSBC should be held liable for two types of illegal dismissal the first type
was made without both substantive and procedural due process, while the
other was based on a valid cause but lacked compliance with procedural due
process. To the first type belonged the dismissal of Fermin, Fagutao and the
18 employees initially identified by the NLRC, while the second type included
the rest of the petitioners.
HSBC maintains that the dismissed 18 employees should not be entitled to
backwages in conformity with Agabon.

We disagree. Agabon involved the second type of dismissal, not the first type
to which the 18 employees belonged. The rule for employees unlawfully
terminated without substantive and procedural due process is to entitle them
to the reliefs provided under Article 27988 of the Labor Code, that is,
reinstatement without loss of seniority rights and other privileges and to his
full backwages, inclusive of allowances, and other benefits or their monetary
equivalent computed from the time the compensation was withheld up to the
time of actual reinstatement. However, the award of baekwages is subject to
the settled policy that when employees voluntarily go on strike, no baekwages
during the strike shall be awarded.89

As regards reinstatement, the lapse of 22 years since the strike now warrants
the award of separation pay in lieu of reinstatement, the same to be equivalent
of one (1) month for every year of service.90 Accordingly, Fermin who did not
participate in the strike, should be paid full baekwages plus separation pay
of one (1) month per year of service, while petitioners Isabelo Molo, Samuel
Ellarma, Rebecca Fajardo, Melo Gaba, Nelia Deriada, Manuel Herrera,
Rosalina Juliet Loquellano, Mercedes Paule, Blanche Motus, Antonio del
Rosario, Maida Militante and Daisy Fagutao, who admitted their participation
in the strike, were entitled to baekwages except during the period of the strike,
and to separation pay of one (1) month per year of service in lieu of
reinstatement.

In Agabon, we said that a dismissal based either on a just or authorized cause


but effected without due process should be upheld. The employer should be
nonetheless liable for non-compliance with procedural due process by paying
indemnity in the form of nominal damages amounting to P30,000.00.

In view of the non-observance of procedural due process by HSBC, the


following petitioners should be entitled to nominal damages of P30,000.00
each,91 namely: Ma. Dalisay dela Chica, Marvilon Militante, David Atanacio,
Carmina Rivera, Russel Palma, Imelda Hernandez, Vicente Llacuna, Josefina
A. Ortiguerro, Ma. Asuncion Kimseng, Miguel R. Sison, Raul P. Geronimo,
Marilou Cadena, Ana Tamonte, Avelino Relucio, Joralyn Gongora, Corazon
Albos, Anabella Gonzales, Ma. Corazon Baltazar, Maria Luz Jimenez, Editha
Broqueza, Ma. Theresa Galang, Benigno Amoin, Gerardo de Leon, Rowena
Ocampo, Hernan Camposanto, Lolito Hilis, Grace Mabunay, Joselito
Gonzaga, Uldarico Pedida, Marcial Gonzaga, Jose Teodoro Motus, Emmanuel
Justin Grey, Julieta Cruz, Rodrigo Durano, Catalina Yee, Menandro
Caligagan, Leonila Perez, and Emma Mateo.

ACCORDINGLY, the Court AFFIRMS the decision promulgated on January


31, 2002 in CA-G.R. SP No. 56797 with MODIFICATION that respondent
Hongkong & Shanghai Banking Corporation (HSBC) shall pay:

Mario S. Fermin, full backwages and separation pay equivalent to one (1)
month per year of service in lieu of reinstatement;

Isabelo Molo, Samuel Ellarma, Rebecca Fajardo, Melo Gaba, Nelia Deriada,
Manuel Herrera, Rosalina Juliet Loquellano, Mercedes Paule, Blanche Motus,
Antonio del Rosario, Maida Militante and Daisy Fagutao, backwages except
during the period of the strike, and separation pay equivalent to one (1) month
per year of service in lieu of reinstatement; and
Ma. Dalisay dela Chica, Marvilon Militante, David Atanacio, Carmina Rivera,
Russel Palma, Imelda Hernandez, Vicente Llacuna, Josefina A. Ortiguerro,
Ma. Asuncion Kimseng, Miguel R. Sison, Raul P. Geronimo, Marilou Cadena,
Ana Tamonte, Avelino Relucio, Joralyn Gongora, Corazon Albos, Anabella
Gonzales, Ma. Corazon Baltazar, Maria Luz Jimenez, Editha Broqueza, Ma.
Theresa Galang, Benigno Amion, Gerardo de Leon, Rowena Ocampo, Hernan
Camposanto, Lolito Hilis, Grace Mabunay, Joselito Gonzaga, Uldarico Pedida,
Marcial Gonzaga, Jose Teodoro Motus, Emmanuel Justin Grey, Julieta Cruz,
Rodrigo Durano, Catalina Yee, Menandro Caligagan, Leonila Perez and Emma
Mateo, indemnity in the form of nominal damages in the amount of
P30,000.00 each.

No pronouncement as to costs.

SO ORDERED.

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