DAIRY QUEEN PRODUCTS COMPANY OF THE PHI­LIPPINES, INC., PETITIONER, VS. COURT OF INDUSTRIAL RELATIONS, DAIRY QUEEN EMPLOYEES ASSOCIATION-CCLU; AND KATAASTAASAN SAMAHANG MAKABAYA…

This is a petition to review the order of the Court of Industrial
Relations in Case No. 2540-MC entitled “Dairy Queen Employees
Association-CCLU vs. Dairy Queen Products Company of the Philippines,
Inc.”, the dispositive part of which reads:

WHEREFORE, Petitioner Dairy Queen Employees Association-CCLU,
should be, as it is hereby, certified as the sole and exclusive bargaining
representative of all regular rank and file employees of the Dairy Queen
Products Company of the Philippines, Inc., for purposes of collective bargaining
in respect to wages, rates of pay, hours of work and other terms and conditions
of employment.

SO ORDERED.

Manila, Philippines,
December 8, 1971.

(SGD)
ANSBERTO P. PAREDES

Associate Judge”^[1]

On September 2, 1969
the Dairy Queen Employees Association-CCLU, Union for
short, staged a strike against the Dairy Queen Products Company of the Philippines,
here­inafter referred to as employer company.

On September 16, 1969, the Dairy Queen Employees Association-CCLU
(Union) instituted Case No. 2540-MC for direct certification as the sole and
exclusive bargaining representative of all regular rank and file employees
and/or workers of the Dairy Queen Products Company of the Philippines, Inc.,
(employer company).^[2]

An order was issued on September 19, 1969 requiring, among other
things, the president and/or general manager of the employer company to post
copies of said order in two conspicuous places in its premises or business
establishment for the purpose of affording notice to all parties who may want
to intervene and participate in the certification election proceeding.  The said directive was duly complied
with.  The employer company submitted
payrolls corresponding to a period of thirty (30) days immediately preceding
the filing of the petition in the case at bar from August 16 to September 16,
1969 and a list of employees covering the same period.

The employer company, instead of answering the petition, filed a
counter-petition seeking to declare the Union’s strike
illegal and to hold in abeyance the proceedings in the certification election.^[3]

On January 17, 1970
the Kasama-Hopeworkers filed an urgent ex-parte motion that it be substituted for the CCLU
allegedly because the Dairy Queen Employees Association had disaffiliated from
the CCLU and is now affiliated with the movant Kasama-Hopeworkers.^[4]
The Kataastaasan Samahang Makabayan Manggagawa (Kasama-Hopeworkers) filed its answer in intervention dated January 28, 1970.^[5]

The Dairy Queen Products of the Philippines, Inc. charged the Union
and its members with unfair labor practice for allegedly staging an illegal
strike.  The prosecutor of the Court of
Industrial Relations filed on December 16, 1970 the corresponding complaint for
unfair labor practice, docketed as Case No. 5538-ULP against the Dairy Queen
Employees Association-CCLU involving the same issue of strike illegality raised
in Case No. 2540-MC.

The Court of Industrial Relations considered the filing of Case
No. 5538-ULP for unfair labor practice as an abandonment by the employer
company of the issue of strike illegality in Case No. 2540-MC and proceeded to
resolve the issue of representation in said case.

Meanwhile, on October
27, 1970, the Court of Industrial Relations had issued an order
granting the motion of the KASAMA-HOPEWORKERS to intervene in Case No. 2540-MC
for certification election and giving it five days from notice to file its
responsive pleading.  The intervenor had earlier filed on January 28, 1970 an answer in intervention which
merely asked to be allowed to “participate on all proceedings”.  The intervenor did
not comply with the order dated October
27, 1970 directing it to file its responsive pleading and did not
appear in the hearings of November 5,
1970 and June 11, 1971
despite notice.  The Court of Industrial
Relations con­sidered the intervenor to have lost
interest in the proceeding and declared its exclusion in order.

The totality of the evidence disclosed that the employer company
is engaged in the business of ice cream and in operation of three (3)
refreshment parlors situated in its main office at Buendia
Street, Makati, Rizal, at Cubao Branch at the New Frontier Cinema Building, Cubao, Quezon City, and Taft
Avenue, Malate, Manila; that in these three (3) areas
of operation or business establishments, there were 45 employees, more or less,
comprising the rank and file employees; that, however, the list of employees
submitted by the employer company as of August 16, 1969 up to September 16,
1969 and the payrolls covering the period from August 10, 1969 up to September
20, 1969 show that there are around 65 employees; that the Dairy Queen
Employees Association-CCLU is a legitimate labor organization; that out of the
45 rank and file employees alleged by the said union, 38 are its members as
shown by the application for membership forms and receipts for union dues; and
that there has been no certification election held within twelve months
immediately preceding the filing of the petition in the case at bar.^[6]

The employer company averred that the Dairy Queen Employees
Association-CCLU declared a strike which commenced on September 2, 1969 and
lasted up to November 29, 1969; that as a result of said strike and in order to
keep the business going, there were employees hired to replace the strikers
from September 2, 1969 and on­ward to September 16, 1969; that on the eve of
the strike, said employer company had already formulated a program to hire and
train about 25 to 30 workers preparatory to the opening of an additional branch
at Diliman, Quezon City;
that when the strike was staged on September 2, 1969,  positions held by the strikers had to be
filled in by these trainees in order to keep the business going; that had it
not been for the strike, these new recruits would have been placed at the new
branch; and that the plan to establish the Diliman
branch did not materialize.^[7]

The Court of Industrial Relations found that from the list of
employees, Exhibit “X-Court”, it would appear that out of the 65
employees, 24 are temporary workers; that by excluding the 24 temporary
employees from the appropriate bargaining unit composed of regular rank and
file employees and/or workers, there were 41 regular employees or eligible
voters; that an examination of the membership application forms submitted in
evidence by the Dairy Queen Employees Association-CCLU disclosed that of the 38
members of the union, 8 were listed as temporary employees; that by excluding
the aforementioned 8 employees and a certain Vicente Rillores
who had resigned his employment in the employer company, there would be 29
members of the aforementioned union who were eligible to vote or to participate
in an election if ordered; that of the 41 regular employees in the list
submitted by the employer company, 29 members of the Dairy Queen Employees
Association-CCLU were qualified for inclusion in the appro­priate unit; that
the members of said union comprised the majority of all the regular rank and
file employees composing the appropriate unit; and that the certification of the
Dairy Queen Employees Association-CCLU as the sole and exclusive bargaining
representative of the employees in the appropriate union was in order.^[8]

The petitioner, Dairy Queen Products Company of the Philippines,
Inc., submits that the Court of Industrial Relations committed the following
errors:

“I

THE COURT A QUO ERRED AND CONCOMMITANTLY COMMITTED
GRAVE ABUSE OF DISCRETION IN DISREGARDING THE FACT THAT RESPONDENT UNION’S
PERMIT AND LICENSE HAVE BEEN CANCELLED BY THE DEPARTMENT OF LABOR.

II

THE COURT A QUO ERRED AND COMMITTED GRAVE ABUSE OF
DISCRETION IN FAILING TO CONSIDER THAT RESPONDENT UNION HAS LOST ALMOST ALL ITS
MEMBERS AND INEVITABLY DID NOT POSSESS A MAJORITY REPRESENTATION.

III

THE COURT A QUO ERRED IN HOLDING THAT ‘IN FILING THE
UNFAIR LABOR PRACTICE CASE (CASE NO. 538-ULP) FOR ILLEGALITY OF STRIKE, THE
EMPLOYER COMPANY (HEREIN PETITIONER) IN EFFECT ABANDONED AND DISCARDED THE SAME
ISSUE IN THE PRESENT CASE (CASE NO. 2540-MC)’.”^[9]

Anent the first error assigned, the petitioner company avers that
the Dairy Queen Employees Association-CCLU could not be certified as the sole
and exclusive bargaining representative of the rank and file employees of said
petitioner company because the certificate of registration of said labor
organization as a legitimate labor organization in the Department of Labor had
been cancelled.

It is true that under Section 24 in relation to Section 2(f) of
Republic Act No. 875, only a legitimate labor organization which has been
registered by the Department of Labor may be certified as the exclusive
representative of the employees in a collective bargain­ing unit.  It is also true that according to the letter
of the acting registrar of the labor organization dated October 21, 1971, the certificate of
registration of the Dairy Queen Employees Association-CCLU had been cancelled
in a decision rendered on September
20, 1971 in Cancella­tion Proceeding No. 5472 of the Labor
Relations Division, Bureau of Labor Relations.^[10]

There is no showing, however, that when the res­pondent court
issued the order dated December 8, 1971, certifying the Dairy Queen Employees
Association-CCLU as the sole and exclusive bargaining representative of all
regular rank and file employees of the Dairy Queen Products Company of the
Philippines, Inc., for purposes of collective bargaining with respect to wages,
rates of pay, hours of work and other terms and conditions for appointment, the
order of cancellation of the registration certificate of the Dairy Queen
Employees Association­-CCLU had become final. 
Indeed, in the letter of the acting registrar of Labor Organizations to
R. A. Ferreros, Sr. of the Dairy Queen Products
Company of the Philippines, Inc., dated October 21, 1971, the second paragraph reads:

“However, pursuant to law and the regulations of this Office
governing the same, said labor union has still the grace period of sixty days
upon receipt of a copy of said decision of cancellation within which to file
with this Office a motion for reconsideration.”^[11]

According to the respondent Dairy Queen Employees
Association-CCLU the “cancellation was unlawful because it was without
notice; and the circumstances suspicious x x x“.^[12]
At any rate, in a resolution dated September 28, 1972, the Registrar of Labor
Organization rescinded the decision of September 20, 1971 canceling the said
union’s registration and permit thus, restoring to the Dairy Queen Employees
Association-CCLU “its legal personality and all the rights and privileges
accorded by law to a legitimate labor organization.”^[13]
It is thus seen that the first error assigned has no merit.

The Court of Industrial Relations noted “that from the
evidence on record there is no effective disaffiliation of the Dairy Queen
Employees Association from the CCLU.”^[14]
This finding is supported by substantial evidence.  There is no reason to set aside the finding
that there is no effective disaffiliation of the Dairy Queen Employees
Association from the CCLU.

Indeed, the KASAMA-HOPEWORKERS with whom the members of the Dairy
Queen Employees Association had allegedly affiliated did not appear at the
hearing of the cer­tification election case in spite of notices to it.  As previously stated by this Court,
“when a union acts as the bargaining agent, it assumes the responsibility
imposed upon it by law to represent not only its members but all the employees
in the appropriate bargaining unit.”^[15]
By the same token, such representative must represent the employees not only in
collective bargaining but also in the bid of the employees to be the certified
representative.  Moreover, when the Dairy
Queen Employees Association presented its evidence of majority representa­tion,
said union made use of its old membership application forms with the
Confederation of Citizens Labor Union (CCLU). 
Hence even the members of the union chose to ignore their affiliation
with the KASAMA-HOPEWORKERS.  Said
members are deemed to have reverted to their original union, the Dairy Queen
Employees Association-CCLU.

The petitioner, Dairy Queen Products Company of the Philippines,
Inc., at first filed a counter-petition in the certification election case,
Case No. 2540-MC to declare the strike illegal. 
It was only when the certi­fication election case was about to be
terminated that the petitioner commenced the case for the unfair labor practice
based on the alleged illegality of the strike. 
Obviously, the petitioner company was trying to delay the disposition of
Case No. 2540-MC for certification election.

In view of the foregoing, the Court of Industrial Relations
correctly held that in filing Case No. 5538-ULP for unfair labor practice, the
petitioner in effect aban­doned the issue of the legality of the strike in the
case of certification election No. 2540-MC.

WHEREFORE, the order of the Court of Industrial Relations
dated December 8, 1971 is
hereby affirmed, without pronouncement as to costs.

SO ORDERED.

Teehankee, (Chairman), Makasiar, Muñoz Palma, Martin, and Guerrero, JJ., concur.

^[1]
Annex “G”, Rollo, p. 57.

^[2]
Annex “A”, Rollo, pp. 33-34.

^[3]
Annex “B”, Rollo, pp. 35-38.

^[4]
Annex “C”, Rollo, p. 39.

^[5]
Annex “D”, Rollo, pp. 40-41.

^[6]
Annex “G”, Rollo, pp. 50-51.

^[7] Idem,
Rollo, pp. 52-53.

^[8] Idem,
Rollo, pp. 56-57.

^[9]
Brief for petitioner, pp. 1-2, Rollo, p. 226.

^[10]
Annex “K”, Rollo, pp. 75-76.

^[11]
Annex “F-1”, Rollo, p. 47.

^[12]
Supplemental Pleading, Rollo, p. 151.

^[13]
Annex “A” to Supplemental Pleading, Rollo,
p. 153.

^[14]
Annex “G”, Rollo, p. 50.

^[15]
National Brewery & Allied Industries Labor Union of the Philippines
vs. San Miguel Brewery, Inc., 8 SCRA 805, 812.