*

G.R. No. 168406. July 13,2009.

CLUB FILIPINO, INC. and ATTY. ROBERTO F. DE LEON,

petitioners, vs.
BENJAMIN BAUTISTA, RONIE SUALOG, JOEL
CALIDA, JOHNNY ARINTO and ROBERTO DE GUZMAN,1
respondents.

Labor Law; Strikes; In cases of bargaining deadlocks, the notice shall,

as far as practicable, fiuther state the unresolved issues in the bargaining
negotiations and be accompanied by the written proposals of the union, the
counter-proposals of the employer and the proof of a request for conference
to settle differences.-In cases of bargaining deadlocks, the notice shall, as
far as practicable, further state the WJiesolved issues in the bargaining
negotiations and be accompanied by the written proposals of the union, the
counter-proposals of the employer and the proof of a request for conference
to settle differences. In cases of unfair labor practices, the notice shall, as far
as practicable, state the acts complained of, and efforts taken to resolve the
dispute amicably. Any notice which does not conform with the requirements
of this and the foregoing section shall be deemed as not having been filed
and the party concerned shall be so informed by the regional branch of the
Board.

Same; Same; Indeed, compliance with the requirement was impossible

because no counter-proposal existed at the time the union

• FIRST DIVISION.

1 Benjamin Bautista and Carlito Precentacion were improperly impleaded in this petition
because the Court of Appeals dism�d the petition for certiorari as far as they were
concerned. See note 17.

472

472 SUPREME COURT REPORTS ANNOTATED

 Club Filipino, Inc. vs. Bautista

filed a notice of strike. The law does not exact compliance with the
impossible.-The Implementing Rules use the words "as far as
practicable." In this case, attaching the counter-proposal of the company to
the notice of strike of the union was not practicable. It was absurd to expect
the union to produce the company's counter-proposal which it did not have.
One cannot give what one does not have. Indeed, compliance with the
requirement was impossible because no counter-proposal existed at the time
the union filed a notice of strike. The law does not exact compliance with the
impossible. Nemo tenetur ad impossibile.

Same; Same; It is hornbook doctrine that a mere .firuling of the illegality

of the strike should not be automatically followed by the wholesale dismissal
of the strikers from employment.-Another error committed by the labor
arbiter was his declaration that respondents, as union officers, automatically
severed their employment with the company due to the alleged illegal strike.
In the first place, there was no illegal strike. Moreover, it is hombook
doctrine that a mere finding of the illegality of the strike should not be
automatically followed by the wholesale dismissal of the strikers from
employment.

Same; Same; Note that the verb ''participates" is preceded lJY the
adverb "knowingly." This reflects the intent of the legislature to require
"knowledge" as a condition sine qua non before a wiion officer can be
dismissedfrom employment for participating in an illegal strike.-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.

PETITION for review on certiorari of a decision of the Court of

Appeals.
The facts are stated in the resolution of the Court.
Westwood Law for petitioners.

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Club Filipino, Inc. vs. Bautista

 Apolinario N. Lomabao, Jr. for private respondents.

R E S O L U T IO N

CORONA, J.:
Petitioner Club Filipino, Inc. (the company) is a non-stock, non
profit corporation duly formed, organized and existing under
Philippine laws, with petitioner Atty. Roberto F. de Leon as its
president. Respondents Ronnie Sualog, Joel Calida, Johnny Arinto
and Roberto de Guzman, on the other hand, were former officers
and members of the Club Filipino Employees Association (the
union).
The union and the company had a collective bargaining
agreement (CBA) which expired on May 31, 2000. Prior to the
expiration of the CBA and within the freedom period,2 the union
made several demands for negotiation but the company replied that
it could not muster a quorum, thus no CBA negotiations could be
held.
Sometime in 2000, the union submitted its formal CBA proposal
to the company's negotiating panel and repeatedly asked for the start
of negotiations. No negotiations, however, took place for various
reasons proffered by the company, among them the illness of the
chairman of the management panel.

2 LABOR CODE, Article 253. Dwy to bargain collectively when there exists a

collective bargaining agreement.-When there is a collective bargaining agreement,

the duty to bargain collectively shall also mean that neither party shall terminate nor
modify such agreement during its lifetime. However, either party can serve a

written notice to terminate or modify the agreement at least sixty (60) days prior

to its expiration date. It shall be the duty of both parties to keep the status IJllO and

to continue in full force and effect the terms and conditions of the existing
agreement during the 60-day period and/or until a new agreement is reached by

the parties. (emphasis supplied)

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474 SUPREME COURT REPORTS ANNOTATED

Club Filipino, Inc. vs. Bautista

In order to compel the company to negotiate, respondents, as

officers of the union, filed a request for preventive mediation with
the National Conciliation and Mediation Board (NCMB). Their
strategy, however, failed to bring the management to the negotiating
table. The union and management only met on April 5, 2001, but the
meeting concluded with a declaration by both parties of a deadlock
in their negotiations.
On April 6, 2001, the union filed a notice of strike with the
NCMB on the grounds of bargaining deadlock and failure to
bargain. On April 22, 2001, the company formally responded to the
demands of the union when it submitted the first part of its economic
counter-proposal; the second part was submitted on May 11, 2001.
Meanwhile, on May 4, 2001, the union conducted a strike vote
under the supervision of the Department of Labor and Employment.
In response to the company's counter-proposal, the union sent
the company its improved proposal, but the company refused to
improve on its offer. This prompted the union to stage a strike on
May 26, 2001 on the ground of a CBA bargaining deadlock.
On May 31, 2001, the company filed before the National Labor
Relations Commission (NLRC) a petition to declare the strike
illegal. The company further prayed that all union officers who
participated in the illegal strike be considered separated from the
service.3
In a decision dated November 28, 2001, the labor arbiter4
declared the strike "procedurally [infirm] and therefore illegal."5
The labor arbiter noted that the union failed to attach its written
CBA proposal and the company's counter-proposal to the notice of
strike and to provide proof of a request for a conference to settle the
dispute. Thus, the notice to strike was

3 Rollo,pp. 59-64.
4 Labor Arbiter Manuel P. Asuncion CA Rollo, pp. 40-48.
5/d,p. 47.

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VOL. 592, JULY 13, 2009 475

Club Filipino, Inc. vs. Bautista

deemed not to have been filed and the strike illegal. As a

consequence, all the officers of the union were deemed terminated
from service. However, these employees were entitled to separation
pay equivalent to that granted to employees affected by the
retrenchment program which the company had earlier launched. 6
Respondents appealed but on September 30, 2002, the NLRC in
a decision7 affirmed the labor arbiter. The NLRC did not see fit to
pass upon the issues raised by respondents because, by the time they
appealed on December 20, 2001, they had either resigned from the
company or were no longer part of the union because of the election
8
of new set of officers.
Respondents' motion for reconsideration was consequently
9
denied. Aggrieved, they elevated the matter to the Court of Appeals
(CA) via a petition for certiorari.10
On May 31, 2005, the CA issued its assailed decision,11 holding
that the labor arbiter and the NLRC "took a selective view of the
attendant facts of the case" and in "negating thereby the effects of
the notice of strike the union filed."12 What was more, the NLRC's
reasoning was flawed because "a worker ordered dismissed under a
tribunal's decision has every right to question his or her
dismissal."13 The labor arbiter's ruling was likewise wrong because
it was based on a

6 Id,pp. 45-48.
7 Permed by Commissioner Lourdes C. Javier and concurred in by Commissioner
Ireneo B. Bernardo. Commissioner Tito F. Genilo took no part. Id,pp. 76-79.
8 Rollo, pp. 78-79.
9 Id,pp. 80-81.
10 Under Rule 65 of the Rules of Court. CA Rollo,pp. 2-16.
11 Penned by Justice Arturo D. Brion (now a member of the Supreme Court) and
concurred in by Associate Justices Eugenio S. Labitoria (retired) and Eliezer R. De
Los Santos (deceased). Rollo,pp. 38-58.
12/d,p. 48.
13/d,p. 47.

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476 SUPREME COURT REPORTS ANNOTATED

Club Filipino, Inc. vs. Bautista

"flimsy technicality" that conveniently booted out the union officers

from the company.14
Thus, the CA set aside the rulings of the NLRC and the labor
arbiter as far as respondents Sualog, Calida, De Guzman and Arinto
were concerned and ordered petitioners to pay them full backwages
and benefits from the time of their dismissal up to the finality of its
decision, plus separation pay computed at one month salary per year
of service from the time they were hired up to the finality of its
decision.15 On the other hand, the CA dismissed the petition as far
 16
as Laureano Fegalquin, Bautista and Precentacion were
17
concemed.
Petitioners then sought redress from this Court by filing a
18
petition for review on certiorari hoisting the issue of whether or
not the strike staged by respondents on May 26, 200 I was legal.
We rule in the affirmative.
It is undisputed that the notice of strike was filed by the union
without attaching the counter-proposal of the company.

l4Id,p. 51.
l5Id,p. 56.
16 Not impleaded in the instant case.
17 The petition was dismissed insofur as Fegalquin and Bautista were concerned
because according to the CA,"In the present case where the recipients are responsible
union officers who have regularly acted in behalf of their members in the discharge of
their union duties and where there is no direct evidence of coercion or vitiation of
consent, we believe we can safely conclude that the petitioners Bautista and
Fegalquin fully knew what they entered into when they accepted their retirement
benefits and when they executed their quitclaims." Rollo, p. 55. On the other, the
petition was dismissed insofur as Precentacion was concerned because he "does not
appear to be covered by the assailed Labor Arbiter and NLRC decisions because he
was not a union officer and was not dismissed under the assailed decisions, and who
had sought redress through a separately-filed case."Id.
18 Under Rule 45 of the RUIES OF COURT.

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VOL. 592, JULY 13, 2009 477

Club Filipino, Inc. vs. Bautista

This, according to petitioners and the labor arbiter, made the ensuing
strike of respondents illegal because the notice of strike of the union
was defective.
The contention is untenable.
Rule XXII, Section 4 of the Omnibus Rules Implementing the
Labor Code states:

''In cases of bargaining deadlocks, the notice shall, as far as practicable,

further state the unresolved issues in the bargaining negotiations and be
accompanied by the \Witten proposals of the union, the counter-proposals of
the employer and the proof of a request for conference to settle differences.
In cases of unfair labor practices, the notice shall, as far as practicable, state
the acts complained of, and efforts taken to resolve the dispute amicably.
 Any notice which does not conform with the requirements of this and the
foregoing section shall be deemed as not having been filed and the party
concerned shall be so informed by the regional branch of the Board."
(emphasis supplied)

In the instant case, the union cannot be faulted for its omission.
The union could not have attached the counter-proposal of the
company in the notice of strike it submitted to the NCMB as there
was no such counter-proposal. To recall, the union filed a notice of
strike on April 6, 2001 after several requests to start negotiations
proved futile. It was only on April 22, 2001, or after two weeks,
when the company formally responded to the union by submitting
the first part of its counter-proposal. Worse, it took the company
another three weeks to complete it by submitting on May 11, 2001
the second part of its counter-proposal. This was almost a year after
the expiration of the CBA sought to be renewed.
The Implementing Rules use the words "as far as practicable."
In this case, attaching the counter-proposal of the company to the
notice of strike of the union was not practicable. It was absurd to
expect the union to produce the company's counter-proposal which
it did not have. One cannot give what one does not have. Indeed,
compliance with the requirement

478

478 SUPREME COURT REPORTS ANNOTATED

Club Filipino, Inc. vs. Bautista

was impossible because no counter-proposal existed at the time the

union filed a notice of strike. The law does not exact compliance
with the impossible. Nemo tenetur ad impossibile.
Another error committed by the labor arbiter was his declaration
that respondents, as union officers, automatically severed their
employment with the company due to the alleged illegal strike. In
the first place, there was no illegal strike. Moreover, it is hombook
doctrine that a mere finding of the illegality of the strike should not
be automatically followed by the wholesale dismissal of the strikers
19
from employment.
The law is clear:

"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. >'20 (emphasis supplied)
 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
21
strike. The provision is worded in such a way as to

19 Progressive Worker's Union 11. Aguas, G.R. Nos. L-59711-12,29 May 1987,150
SCRA 429, 440; Bacus 11. Opie,G.R. No. L-56856, 23 October 1984, 132 SCRA 690,
703; Almira 11. B.F. Goodrich Philippines, Inc., G.R. No. L-34974, 25 July 1974, 58
SCRA 120; Shell Oil Workers' Union 11. Shell Company of the Philippines, Ltd, G.R.
No. L-28607, 31 May 1971, 39 SCRA 276; Cebu Portland Cement Co. 11. Workers
Union, G.R. Nos. L-25032 and L-25037-38, 14 October 1968, 25 SCRA 504; Ferrer 11.
Cowt a/Industrial Relations, et al., G.R. Nos. L-24267-8, 31May 1966, 17 SCRA 352;
Progressive Worker's Union 11. Aguas,G.R. Nos. L-59711-12,29May 1987,150 SCRA
429,440.
20 LABOR CODE,Article 264(a).
21 See Staniford Marketing Corp. 11. Julian, G.R. No. 145496, 24 February 2004,
423 SCRA 633,648 where the Cotnt held: "Article

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VOL. 592, JULY 13, 2009 479

Club Filipino, Inc. vs. Bautista

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
22 23
constitutiona1 and statutory mandate to protect the rights of
employees to self-organization.

264 of the Labor Code, in providing for the consequences of an illegal strike, makes a
distinction between union officers and members who participated thereon Thus,
knowingly participating in an illegal strike is a valid ground for termination from

employment of a union officer. The law, however, treats differently mere union
members. Mere participation in an illegal strike is not a sufficient ground for
termination of the services of the union members. The Labor Code protects an

ordinary, rank-and-file union member who participated in such a strike from losing his
job, provided that he did not commit an illegal act during the strike. Thus, absent any
clear, substantial and convincing proof of illegal acts committed dwing an illegal
strike, an ordinary striking worker or employee may not be terminated from work."
(emphasis supplied)
 22 CONSmurrON,Section 18,Article II. The State affirms labor as a primary social
economic force. It shall protect the rights of workers and promote their welfare.
Id,Section 8, Article m. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies, for pmposes not
contrary to law, shall not be abridged.
Id, Section 3, Article XIII. The State is mandated to "guarantee the rights of all
workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law."
23 LABOR CODE, Article 243. Coverage and employees' right to self-organization.­
All persons employed in commercial, industrial or educational institutions, whether
operating for profit or not, shall have the right to self-organization and to form, join, or
assist labor organizations of their own choosing for purposes of collective bargaining.
Ambulant, intermittent and itinerant workers, self-employed people, rural workers and
those without any de.finite employers may form labor organizations for their mutual
aid and protection.

480

480 SUPREME COURT REPORTS ANNOTATED

Club Filipino, Inc. vs. Bautista

Nowhere in the ruling of the labor arbiter can we fmd any

discussion of how respondents, as union officers, knowingly
participated in the alleged illegal strike. Thus, even assuming
arguendo that the strike was illegal, their automatic dismissal had no
basis.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioners.
SO ORDERED.

Puno (C.J., Chairperson), Carpio, Leonardo-De Castro and

Bersamin, JJ., concur.

Petition denied.

Note.-In cases not falling within the prohibition against strikes,

the legality or illegality of a strike depends first, upon the purpose
for which it is maintained and second, upon the means employed in
carrying it on ( Chuayuco Steel Manufacturing Corporation vs.
Buklod ng Manggagawa sa Chuayuco Steel Manufacturing
Corporation, 513 SCRA 621 [2007])
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