BATANGAS LAGUNA TAYABAS BUS COMPANY, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION), TINIG AT LAKAS NG MANGGAGAWA SA BLTBCO-NAFLU AND ITS REINSTATED ONE HU…

This case arose when on May 23, 1988, private respondent Tinig at
Lakas ng Manggagawa sa BLTB Co. NAFLU (TLM-BLTB-NAFLU), an affiliate of the
National Federation of Labor Unions (NAFLU), filed a Notice of Strike against
the Batangas Laguna Tayabas Bus Company on the grounds of unfair labor practice
and violation of the CBA.

The reaction of BLTBCo was to ask the Secretary of Labor to
assume jurisdiction over the dispute or to certify it to the National Labor
Relations Commission for compulsory arbitration. The petitioner also moved to dismiss the notice of strike on
August 3, 1988.

Efforts at amicable settlement having failed, Acting Labor
Secretary C. Castro certified the dispute to the NLRC on August 29, 1988.^[1]

A copy of the certification order was served upon the NAFLU on
August 29, 1988, and on the TLM-BLTBCo-NAFLU on August 30, 1988. However, it was noted in the notice of order
that union secretary Jerry Soriano refused to receive it.

On August 31, 1988, the officers and members of TLM-BLTBCo-NAFLU
went on strike and maintained picket lines blocking the premises of BLTBCo’s
terminals.

On September 6, 1988, the NLRC issued an en banc
resolution ordering the striking employees to lift their picket and to remove
all obstructions and barricades. All
striking employees on payroll as of May 23, 1988, were required to return to
work. BLTBCo was directed to accept
them back to work within 5 days under the same terms and conditions prevailing
before the strike.^[2]

On September 15, 1988, the BLTBCo caused the publication of the
resolution and called on all striking workers to return to work not later than
September 18, 1988. It later extended
the deadline to September 19, 1988.

Of the some 1,730 BLTBCo employees who went on strike, only 1,116
reported back for work. Seventeen
others were later re-admitted. Subsequently, about 614 employees, including those who were allegedly
dismissed for causes other than the strike, filed individual complaints for
illegal dismissal. Their common ground
was that they were refused admission when they reported back for work.

Among those who failed to comply with the return-to-­work order
were the respondent individual union members.

On July 19, 1991, the NLRC issued a resolution deciding the
dispute thus:

WHEREFORE, judgment is hereby rendered as follows:

1. Dismissing the charge of
unfair labor practice and union busting filed by the union against BLTBCo for
lack of merit;

2. Ordering BLTBCo to fully
implement the provisions of the CBA in the matter of uniform and safety shoes;

3. Declaring valid the
dismissal of Jose M. Calubayan, Tirso Vinas, Ronelito Torres, Floro T. Isla and
Rosauro Aguilar, being grounded on lawful causes;

4. Declaring the strike
illegal;

5. Declaring the following
officers and members of the union, namely: x x x to have lost their employment
status;

6. Ordering the
reinstatement of the following union members, namely; x x x to their former
position without loss of seniority rights but without backwages.

7. The case of Ladislao
Violanda is considered withdrawn.

8. Directing likewise the
reinstatement of all striking employees of BLTBCo who have not committed
illegal acts.

9. Declaring regular the
employment of casual employees who have already rendered service of at least
one year whether continuous or broken.

On September 16, 1991, the NLRC issued the other challenged
resolution, viz.:

WHEREFORE, the Motion for Reconsideration of Respondent BLTBCo and
Complainant Pepito Abratique are denied for lack of merit. As a consequence, respondent’s prayer
for temporary restraining order is likewise denied.

As prayed for, respondent is directed to reinstate the union
members specifically named in the questioned resolution and all those striking
employees who have not committed illegal acts.

This order of reinstatement is immediately executory. No further motions for reconsideration shall
be allowed.

BLTB then filed this special civil action for certiorari,
claiming that the respondent NLRC committed grave abuse of discretion in:

1.     
ordering the reinstatement of the aforenamed 190 individual
respondent union members notwithstanding the fact that they knowingly participated in a strike which was illegal
from its inception as it was done in complete defiance and/or disobedience to
the Assumption Order of August 29, 1988
and the Return-To-Work Order of September 6, 1988;

2.     
failing to consider that aforenamed individual union members
have already abandoned their employment when they defied the Return-To-Work
Order of September 6, 1988;

3.     
limiting the declaration of forfeiture of employment status to
mere thirty-six (36) union officers and members of the striking union when BLTBCo was able to initially identify
at least (a) one hundred (100) employees who committed illegal/violent acts
during and after the strike; and (b)
twenty (20) employees who reported back for work and later on abandoned it and
resumed their strike activities;

4.     
not including the recognized union officers – Jerry Soriano,
Serafin Soriano and Desiderio Comel – among the union officers whose employment status have been declared
forfeited; and

5.     
incorporating in its subject Resolution a blanket order
reinstating BLTBCo’s striking employees who have not committed illegal acts.

On motion of the petitioner and upon its posting of a cash bond
in the amount of P500,000.00, the Court issued a temporary restraining order on
November 6, 1991, against the enforcement of the above-quoted resolutions.^[3]

Separate comments on the petition were filed by two of the
private respondents, Celso Peñana and Pepito Abratique, and by the Solicitor
General on behalf of the public respondent. A consolidated reply to these comments was later submitted by the
petitioner.

The Court has deliberated on the arguments of the parties and
finds that the challenged resolutions must be sustained.

BLTBCo contends that the 190 union members who participated in
the illegal strike should not have been reinstated because they defied the
return-to-work order of September 6, 1988. It invokes against the NLRC its own words in its resolution of July 19,
1991, where it said:

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. (Union
of Filipro Employees (UFE), et al. vs. Nestle Philippines, Inc., et al., G.R.
No. 88710-13, December 19, 1991)

That is only half the picture, however. As the NLRC further explained, it was “not inclined to
declare a whole­-sale forfeiture of employment status of all those who
participated in the strike” because, first of all, there was inadequate
service of the certification order on the union as of the date the strike was
declared and there was no showing that the striking members had been apprised
of such order by the NAFLU.

Secondly, and more importantly, the resolution declared as
follows:

Applying the principle of vicarious liability, only the officers of
the union deserved to be penalized with the loss of their employment
status. The leaders of the union are
the moving force in the declaration of the strike and the Rank-in-file
employees merely followed. Likewise,
viewed in the light of Article 264, paragraph (e), those who participated in
the commission of illegal acts who stood charged criminally thereof in court
must be penalized. BLTBCo will have to
agree with Us that while the general membership of TLM-NAFLU may have joined
the strike at its inception, We are convinced that they returned to work on
September 19, 1988 or, immediately thereafter. And, We are not swayed that these employees have abandoned their job
just because they reported late or, beyond the period required by the
Commission and by BLTBCo. The
circumstances of time and place of employment and the residences of the
employees as well as the lack of individual notice to them are reasons enough
to justify their failure to beat the deadline.

True it is, that management of BLTBCo caused the publication of the
Resolution of the Commission of September 5, 1988 in the Manila Bulletin, We
cannot reasonably expect the complainants, who are ordinary workers, to be
regular readers of such newspaper. Moreover, the publication of the said resolution was only made once.

We accept these factual conclusions as they do not appear to have
been reached arbitrarily. The mere fact
that the majority of the strikers were able to return to work does not necessarily
mean that the rest deliberately defied the return-to-work order or that they
had been sufficiently notified thereof. As the Solicitor General correctly adds, some of them may have left
Metro Manila and did not have enough time to return during the period given by
the petitioner, which was only five days.

The contention of the petitioner that the private respondents
abandoned their position is also not acceptable. An employee who forthwith takes steps to protest his lay-off
cannot by any logic be said to have abandoned his work.

For abandonment to constitute a valid cause for termination of
employment, there must be a deliberate, unjustified refusal of the employee to
resume his employment.^[4]
This refusal must be clearly established. As we stressed in a recent case,^[5]
mere absence is not sufficient; it must be accompanied by overt acts unerringly
pointing to the fact that the employee simply does not want to work
anymore. In the case at bar, the
affidavit of Eduardo Azucena, BLTBCo operations manager,^[6]
besides being hearsay, lacks credibility in light of the subsequent acts of the
private respondents in complaining about their separation.

A worker who joins a strike does so precisely to assert or
improve the terms and conditions of his employment. If his purpose is to abandon his work, he would not go to the
trouble of joining a strike.

The petitioner also alleges that the NLRC erred in limiting the
forfeiture of employment status to the 36 union officers and members although
there were at least 100 employees who committed violent acts and 20 employees
who reported back for work and later abandoned it to resume their strike
activities.

These issues are also factual. The findings thereon of the NLRC are conclusive on us and will not be
disturbed as it clearly appears that they are not tainted with grave abuse of
discretion.

We agree with the Solicitor General that the mere filing of
charges against an employee for alleged illegal acts during a strike does not
by itself justify his dismissal. The
charges must be proved at an investigation duly called where the employee shall
be given an opportunity to defend himself. This is true even if the alleged ground constitutes a criminal offense,
as we held in Almira v. B.F. Goodrich Phil., Inc.^[7]
In that case, we ordered the reinstatement of employees against whom criminal
complaints had been filed but not yet proved.

The next contention of the petitioner is that Serafin Soriano,
Jerry Soriano and Desiderio Comel should also be dismissed with the other union
officers and members who participated in the illegal strike. We note, however, that these three have not
been impleaded in this petition (unlike the others who have been individually
named) and so have not been given an opportunity to defend themselves against
the charges of BLTBCo. Absent such an
opportunity, we are precluded from making any pronouncement regarding their
alleged role in the strike for which their dismissal is sought.

The petitioner’s last point is that the NLRC should not have
issued the blanket directive for the “reinstatement of all striking
employees of BLTBCo who have not committed illegal acts.”

The key clause here is “who have not committed illegal
acts. The directive was not really
“blanket,” as the petitioner would call it, but indeed
selective. The NLRC made this clear in
the resolution dated September 16, 1991, thus:

The loss of employment status of striking union members is limited
to those “who knowingly participates in the commission of illegal
acts.” (Article 264, Labor Code) Evidence must be presented to
substantiate the commission thereof and not merely an unsubstantiated
allegation. He who asserts the
commission of illegal acts, must prove the same, and it is on the basis of
substantiated evidence that this Commission declares the loss of employment
status of specific union members who have committed illegal acts.

This Commission’s order directing the reinstatement of all striking
employees against whom no complaint of illegal acts having been committed
during the strikes, and who were barred from returning to work and is similarly
situated with those who have been directed to be reinstated, should, as a
consequence and on the basis of the reasons discussed in the questioned
resolution be reinstated. There is no
denial of due process in this direction, for respondent has been given the
chance to defend its position.

Elaborating on the same issue, the Solicitor General astutely
observes:

The assailed Resolution does not prevent petitioner from continuing
with its investigations and come up with evidence against these workers. But they have to be admitted back to their
work first. This is clearly a situation
where the social justice provisions of our laws and jurisprudence come in aid
of labor. Since such investigations
might be extended, intentionally or otherwise, the workers are in danger of
losing their livelihood. As compared to
the management that is in a position to wage an extended legal struggle against
labor, the latter cannot do so. This is
where the State intervenes to equalize matters between labor and management.

The right to strike is one of the rights recognized and
guaranteed by the Constitution as an instrument of labor for its protection
against exploitation by management. By
virtue of this right, the workers are able to press their demands for better
terms of employment with more energy and persuasiveness, poising the threat to
strike as their reaction to the employer’s intransigence. The strike is indeed a powerful weapon of
the working class. But precisely
because of this, it must be handled carefully, like a sensitive explosive, lest
it blow up in the workers’ own hands. Thus, it must be declared only after the most thoughtful consultation
among them, conducted in the only way allowed, that is, peacefully, and in
every case conformably to reasonable regulation. Any violation of the legal requirements and strictures, such as a
defiance of a return-to-work order in industries affected with public interest,
will render the strike illegal, to the detriment of the very workers it is
supposed to protect.

Even war must be lawfully waged. A labor dispute demands no less observance of the rules, for the benefit
of all concerned.

WHEREFORE, the
petition is DISMISSED. The resolutions
dated July 19, 1991, and September 16, 1991, are AFFIRMED. The temporary restraining order dated
November 6, 1991, is LIFTED. Costs
against the petitioner.

SO ORDERED.

Griño-Aquino and
Bellosillo, JJ., concur.

Medialdea, J., no part.

^[1]
Rollo, p. 137.

^[2]
Ibid., p. 140.

^[3]
Id., p. 189.

^[4]
Nueva Ecija
I Electric Cooperative, Inc. (NEECO-I) v. Minister of Labor, 184 SCRA
25.

^[5]
Ibid.

^[6]
Rollo, p. 153.

^[7]
58 SCRA 120.