FEDERATION OF FREE WORKERS, GERARDO ROSANA, FE DIVINA, PATRICIO MIRANDA, ARTURO GUEVARRA, PURIFICACION CABRERA, ANGELINA GAVIOLA, TITO MARQUEZ, ELPIDIO ORINION, DELIA ABUEG, TER…

This petition for certiorari with prayer for the issuance
of a writ of preliminary injunction seeks to annul and set aside two decisions
issued by the respondent Amado G. Inciong,
Deputy Minister of Labor and Employment in Re: 
Illegal Strike Staged by Federation of Free Workers at Aris Philippines and docketed as AJML-009-78, entitled
“Aris (Philippines) Inc., v. Federation of Free
Workers, Gerardo Rosana, et al.”  The decision dated April 11, 1978 declared
the illegality of the strike; ordered all striking employees except the union
officers to return to work within twenty four (24) hours from the receipt of
the order; revoked the previous order dated April 2, 1978; granted the
application for clearance to place all union officers under preventive
suspension and placed the administration of the union and the collective
bargaining agreement directly under the Federation of Free Workers.  The second assailed decision dated January 29, 1979 granted the
application for clearance to terminate the services of eighteen (18) union
officers and member of the FFW local union.

The antecedent facts are as follows:

Petitioner Federation of Free Workers (FFW) is a legitimate labor organization duly
registered with the Ministry of Labor while petitioners Gerardo Rosana, Fe Diviña, Patricio
Miranda, Arturo Guevarra, Purificacion
Cabrera, Angelina Gaviola, Tito Marquez, Elpidio Orinion, Delia Abueg, Teresita Garcia, Elena
Padilla, Dolores Daileg, Crescelia
Ybanes, Elena Ortilla,
Marietta Salonga, Rodolfo Labarinto
and Aurelia San Juan are union officers of the FFW local union and Lourdes Luna
is a member of the union at private respondent Aris
(Philippines), Incorporated.  Private
respondent Aris (Philippines),
Incorporated (company) is a duly organized domestic corporation engaged in the
manufacture of leather gloves exclusively for export.

On September 17, 1977,
a certification election was held in private respondent company under the
supervision of the Bureau of Labor Relations. 
Petitioner FFW garnered the highest number of votes and was subsequently
declared the authorized bargaining representative.

Consequently, private respondent company and petitioner FFW
executed a memorandum of agreement on February 3, 1978 wherein (a) the company
recognized FFW as the bargaining representative of the rank and file employees
in the bargaining unit as of February 1, 1978; (b) the company and FFW shall
negotiate for a new collective bargaining agreement, but in the meantime FFW
will continue to administer the then existing CBA which expired on December 31,
1977 until a new CBA is executed; and (c) FFW will be entitled to all union
dues starting February 1, 1978.  The same
hold-over CBA contained a “no strike – no lockout clause.”

Pursuant to the aforementioned memorandum of agreement, the
company and FFW met on February 7, 13, 15, 22 and 25, 1978 to negotiate for a
new CBA that would govern the terms and conditions of employment of the rank
and file employees in the company. 
However, the parties failed to reach any agreement and a deadlock
ensued.

On February 28, 1978,
the FFW through its president, petitioner Gerardo Rosana
filed with the MOLE (now DOLE) a notice of strike.

The company and FFW met on March 7, 13, 27 and 29, 1978 at the
Bureau of Labor Relations for conciliation upon summons by Director Carmelo Noriel.  However, the parties still failed to reach,
any accord, so on March 29, 1978, FFW requested respondent Amado
G. Inciong (then Acting Secretary) to assume
jurisdiction over the labor dispute and undertake to terminate the case within
two weeks (see Rollo, p. 19).

On April 1, 1978,
after the required thirty (30) days notice, the FFW staged a strike on all the
three (3) plants of the company (see Rollo, pp.
19-20).

The private respondent company having been classified as a vital
industry pursuant to Letter of Instruction No. 368 and thus protected by
Presidential Decree No. 823, as amended against any strike, the respondent
Deputy Minister assumed jurisdiction over the dispute.

A marathon conference was held on April 2, 1978 between the company and FFW in Camp
Crame
with the active mediation of respondent Inciong and
Brig. Gen. Prospero Olivas.

During the conference, an order dated April 2, 1978 was issued by
respondent Inciong directing the company to give a
wage increase of P3.00 for three years and to give one day additional vacation
and one day additional sick leave each and ordered the strikers to immediately
return to work (see Rollo, pp. 32-33).

Notwithstanding the FFW’s commitment to
abide by the aforesaid order of April
2, 1978, the strikers not only failed to lift the picket lines and
return to work but intensified further the barricades.

On April 4, 1978, the company filed with the Secretary of Labor
an urgent motion to declare the strike illegal and to revoke the order of April
2, 1978 at the same time it applied for clearance to terminate the employment
of the illegal strikers with the Regional Office of the Department of Labor and
Employment for violation of Presidential Decree No. 823, as amended and General
Order No. 5.

In the meantime, the illegal strikers were placed under
preventive suspension.

The respondent Deputy Minister rendered a decision on April 11,1978,
to wit:

“Based on the foregoing and by virtue of the powers of the
Secretary of Labor under PD 823 as amended, and in order to serve as a warning
to all others who violate or disregard the law and the authorities duly
empowered to enforce it, the following are hereby ordered:

“1.  The
strike and the strike activities undertaken by the union are hereby declared illegal;

“2.  All
striking employees except the union officers are hereby ordered to return to
work within 24 hours from the receipt of this order by the parties.  The company may hire new employees to replace
those employees who fail to report for work without any valid reason within the
prescribed period.

“3.  The
Order of 2 April 1978 is
hereby revoke (d).  Instead, the last
position of management under pressure from the government and the strikers in
the amount of P2.25 is hereby adopted, but alloted
(sic) as follows:

“(a) P1.00 for the first eighteen (18) months; and

“(b) P1.25 for the second eighteen (18)
months.

“The P1.00 increase is retroactive to January 1, 1978, but the new 3-year collective
bargaining agreement shall be effective upon
signing.  In addition, the company shall
give one additional vacation and sick
leave each.  All other provisions of the
collective agreement which expired in December 1977 are deemed retained for
incorporation into the new CBA.

“4. Clearance is hereby granted to the company to place all
union officers under preventive suspension. 
However, the individual accountability of the union officers and members
for the illegal strike and other illegal activities of the union shall be the
subject of further hearing by the Secretary of Labor. Atty. Virgilio
Sy of the Bureau of Labor Relations is hereby
designated as hearing officer and he shall submit this report and
recommendation to the Secretary of Labor within 20 working days from start of
hearing.

“5. 
Pending determination of the accountability of the union
officers, the administration of the union and the collective bargaining is
hereby placed directly under the Federation of Free Workers (FFW).

“SO ORDERED.” (Rollo, pp. 23-25)

On the same date, the company and FFW, through the mediation of
respondent Inciong entered into a memorandum of
agreement to end their dispute and the strike.

 Pursuant to the
aforementioned memorandum of agreement, the company and FFW executed a CBA on April 12, 1978 before respondent Inciong.

Anent the application for clearance to terminate the employment
of the illegal strikers, the respondent Deputy Minister rendered a decision on January 29, 1979 granting or
approving the application for clearance to terminate, the dispositive
portion of which provides as follows:

“WHEREFORE, in view of the foregoing, the application for
clearance to terminate the services of Gerardo Rosana,
Fe Divina, Patricio Miranda, Arturo Guevarra, Purificacion Cabrera,
Angelina Gaviola, Tito Marquez, Elpidio
Orinion, Delia Abueg, Teresita Garcia, Elena Padilla, Dolores Daileg, Crescelia Ybanes,
Elena Ortilla, Marietta Salonga,
Rodolfo Labarinto, Aurelia San Juan and Lourdes Luna
is hereby granted and/ or approved.

“SO ORDERED.” (Rollo, pp. 30-31)

Hence, this present petition.

This Court in a resolution dated March 30, 1979 issued a temporary restraining order
enjoining respondents from enforcing or executing the order dated April 11, 1978 and the decision dated
January 29, 1979 (see Rollo, pp. 44-45).

Petitioners stress that the respondent’s order dated April 2, 1978 had become final and executory and therefore his subsequent decision dated April 11, 1978 could not legally
revoke the said final order.

The law invoked by the petitioners is section 10 of Presidential
Decree No. 823 as amended, to wit:

“Section 10.  Where a labor dispute has not been resolved
by the Regional Offices, the Bureau of Labor Relations, the National Labor
Relations Commission and the voluntary arbitrators within the reglementary period, the Secretary of Labor is hereby
authorized to assume jurisdiction over and summarily decide such dispute which
poses an emergency or is critical to the national interest as determined by him
on advise and recommendation of the Undersecretary of Labor, the Chairman of
the National Labor Relations Commission and the Director of the Bureau of Labor
Relations.  Where the Labor Dispute Involves
A Notice Of Strike Or Lockout, the Secretary of Labor May, At Any Time, Assume Jurisdiction And Summarily
Decide It.  The decision of
the Secretary of Labor shall be final
and executory unless stayed
by the President of the Philippines.”  (Rollo, pp. 13-14)

In sum, petitioners insist that respondent Deputy Minister
gravely abused his discretion and acted in total lack or in excess of his
jurisdiction when he issued his decisions dated April 11, 1978 and January
29, 1979.

On the contrary, private respondent company emphasizes that the
fact that the order dated April 2, 1978
declared on its face that the awards given therein are the “final and
complete resolution of the issues” in the case does not mean that the said
order may no longer be revoked or modified by the Minister (now Secretary) of
Labor.  It notes that the aforequoted phrase simply means that all the issues raised
by the collective bargaining deadlock between the parties are already resolved
and completely settled but did not make the order final and executory
as of the date of issuance.  Hence, the
respondent Deputy Minister has the authority to modify and/or revoke his former
order.

Furthermore, private respondent maintains that petitioners’
failure to seasonably move for reconsideration or appeal the decision dated April 11, 1978 made it final and
therefore may no longer be reviewed by the Supreme Court.  It also underscores the fact that the
petitioners are already estopped from questioning the
assailed decisions because the parties already executed a memorandum of
agreement on April 11, 1978
and subsequently, a collective bargaining agreement on April 12, 1978.

In conformity with the private respondent’s stand, the respondent
Deputy Minister through the Solicitor General argues that since the order dated
April 2, 1978 was not appealed to the Office of the President, it is still well
within the power of the respondent Deputy Minister to reconsider and revoke the
same (see Rollo, p. 128).

Furthermore, the Solicitor General stresses that the remedy of
appeal was not pursued by the petitioners but instead they allowed the decision
dated April 11, 1978 to
lapse into finality, hence, they cannot now contest
the correctness of the said decision through a petition for certiorari
eleven (11) months after its promulgation (see Rollo,
p. 127).

The pivotal issue therefore, is whether or not the respondent
Deputy Minister gravely abused his discretion when he revoked his former order
dated April 2, 1978.

After a careful review of the records of this case, the Court
finds the petition devoid of merit and holds that the respondent Deputy
Minister did not gravely abuse his discretion when he revoked his previous
order dated April 2, 1978
and subsequently issued his decisions dated April 11, 1978 and January
29, 1979.

The order dated April 2, 1978 of the Minister of Labor never
assumed finality by the very own acts of petitioner union who broke its
commitment to lift the strike when it resumed its blockades on the plant gates,
erected tents, posted new placards and circulated new leaflets.  The narration of the incidents of the
controversy by the Deputy Minister of Labor in his decision dated April 11,
1978 shows that he even made a commitment to recommend affirmation by the Office
of the President of his April 2 order and to ask management not to raise the
illegality of the strike before the Department of Labor if only petitioner
union would accept the same upon the opening of working hours on the following
Monday, April 4.  He renewed this
commitment on April 4, 1978
when the union officials promised before General Prospero Olivas
at Camp Crame and Mayor Joseph
Estrada to dismantle their pickets and return to work immediately.  However, petitioner union again backed out
and continued their massive picketing. 
This Court is perplexed why petitioner union would now have the temerity
to claim that said order of April 2,
1978 had attained finality.

Besides, it is very clear that the remedy of petitioners against
the decision dated April 11, 1978
revoking his previous order dated April
2, 1978 is appeal to the Office of the President.

While the special civil action of certiorari may be
availed of in the alternative situation where an appeal would not constitute a
plain, speedy and adequate remedy, this is on the theoretical assumption that
the right to appeal is still available in the case.  If, however, the remedy by appeal had already
been lost and the loss was occasioned by petitioner’s own neglect or error in
the choice of remedies, certiorari cannot lie as a substitute or a tool
to shield the petitioner from the adverse consequences of such neglect or
error.  The two remedies are mutually
exclusive and not alternative or successive (Manila Electric Company v. Court
of Appeals, G.R. No. 88396, July 4, 1990, 187 SCRA 200, 205).

Applying this fundamental principle to the case at bar, it is
readily evident that the petitioners had ample opportunity to appeal the
decision of the respondent Deputy Minister revoking his previous order dated April 2, 1978.  The remedy of appeal to the Office of the
President was not pursued by the petitioners. 
They nevertheless deliberately allowed the period for appeal to pass
without interposing one.  Worse, despite
the then availability of the remaining period for appeal, the petitioners allowed
the decision to lapse into finality. 
Hence, they cannot now contest the legality of the decision through the
present petition for certiorari.

It is noteworthy that the present petition hardly assailed the
correctness of the decision dated January
29, 1979 despite petitioners’ supplemental petition seeking the
reinstatement of the individual petitioners with full backwages
and without loss of seniority.

The respondent Deputy Minister already declared the strike staged
by the union illegal in his decision dated April 11, 1978, the pertinent
portion of which provides:

“It should be noted that the strike and the strike activities
undertaken by the union were patently illegal. 
First, the employer is engaged in a vital industry and, therefore,
protected by PD 823 as amended from strikes and lockouts.  Second, the Secretary of Labor had already
assumed jurisdiction over the dispute and therefore, the parties are enjoined
against strikes and lockouts.  Third, the
parties themselves have voluntarily agreed to maintain the status quo, while
waiting for the summary decision of the Secretary of Labor.  Moreover, even if the strike were not illegal
per se, the strike activities staged by the union, especially the establishment
of massive human barricades at all entrances to the company and the use of
coercive methods to keep company officials and other personnel out, were
definitely illegal.”  (Rollo, p. 20)

We already ruled in the case of Union of Filipro
Employees v. Nestle Philippines, Inc. (G.R. Nos. 88710-­13, December 19, 1990,
192 SCRA 396, 411) that “[a] strike that is undertaken despite the
issuance by the Secretary of Labor of an assumption or certification order
becomes a prohibited activity and thus illegal, pursuant to the second
paragraph of Art. 264 of the Labor Code as amended (Zamboanga Wood Products, Inc. v. NLRC, G.R. 82088, October
13, 1989; 178 SCRA 482).  The
Union officers and members, as a result, are deemed to have lost their employment status for having
knowingly participated in an illegal act.”

Unrebutted evidence shows that the
individual petitioners actively participated in the illegal strike staged by
the union (see Rollo, pp. 27-28, 30).   Hence, the termination of the services of
the individual petitioners is justified.

All premises considered, the Court is
convinced that the assailed decisions of the respondent Deputy Minister are not
tainted with arbitrariness that would amount to grave abuse of discretion or
lack of jurisdiction and therefore, We find no reason to disturb the same.

ACCORDINGLY, the petition is DISMISSED for lack of merit
and the decisions of the Deputy Minister
of Labor dated April 11, 1978
and January 29, 1979 are
hereby AFFIRMED.  The temporary
restraining order issued by this Court on March 30, 1979 is hereby LIFTED.

SO ORDERED.

Narvasa, C.J., Cruz, and Grino-Aquino, JJ., concur.

Bellosillo, J., on leave.