REPUBLIC SAVINGS BANK (NOW REPUBLIC BANK), PETITIONER, VS. COURT OF INDUSTRIAL RELATIONS, ROSENDO T. RESUELLO, BENJAMIN JARA, FLORENCIO ALLASAS, DOMINGO B. JOLA, DIOSDADO S. MEN…

The petitioner Republic Bank has filed a motion for re­consideration
of our decision of September 27, 1967.

First.  It is argued
that as the complaint in this case charges violation of section 4(a)(5) of the
Industrial Peace Act, this Court is without
power to find the Bank guilty
of violation of any other provision of section 4(a), and that as it was in fact
held liable not only under paragraph (5) but also under paragraphs (1) and (6)
of section 4(a), it was de­nied its constitutional right to due process.  The decision has departed from the issue
defined in the complaint and answer.

This argument has no merit. 
The question is whether the Bank committed
the act charged in the complaint.  If it
did, it is of no consequence, either as a matter of procedure or of substantive
law, what the act is denominated – whether as a restraint interference or
coercion, as some members of the Court believe it to be, or as a discriminatory
discharge as other members think it is, or as a refusal to bargain as some
other members view it, or even as a combination
of any or all of these.^[1]
For howsoever it may be characterized,
the Bank’s conduct in discharging the respondent employees constituted an unfair labor practice.

In the leading case of National
Labor Relations Board v. Mackay Radio
& Telegraph Company,^[2] the claim was similarly made that company was found guilty of an unfair labor practice which vas not
within the issues upon which the case was tried.  According to the company, it was summoned to
answer a complaint that it discriminated be discharging five strikers, and that
after all the evidence was in, the complaint was withdrawn and a new one was
filed charging it this time with refusal to re-employ the strikers.  But, it was said, when the National Labor
Relations Board made its findings it reverted to the original position that
what the company did was not a failure to employ but a wrongful discharge.

In rejecting the
contention, the United States Supreme Court said:

“The position is highly
technical.  All parties to the proceeding
knew from the outset that the thing complained of was discrimination against
certain men by reason of their alleged union activities. . . . The respondent further argues that, when the
amended complaint was filed and the original one withdrawn, the charge it had
to meet was a refusal to re-employ; that the phrase ‘re-employ’ means ’employ
anew;’ that if the Board had found a failure to employ the five men because of
discrimination forbidden by the Act, the findings would have followed the complaint, whereas the Board, in its
conclusions of fact, referred to respondent’s action as ‘refusal to reinstate
to employment’ and as a discharge; and the argument is that the findings do not
follow the pleading.

“A review of the record shows that at no time during the hearings
was there any misunderstanding as to what was the basis of the Board’s
complaint.  The entire evidence, pro and
con, was directed to the question
whether, when the strike failed and the men desired to come back and were told
that the strike would be forgotten and that they might come back in a body save
for eleven men who were singled out for different treatment, six of whom,
however, were treated like everyone else, the respondent did in fact
discriminate against the remaining five because of union activity.  While the respondent was entitled to know the
basis of the complaint against it, and to explain its conduct, in an effort to
meet that complaint we find from the record that it understood the issue and
was afforded full opportunity to justify the action of its officers as innocent
rather than discrimination.^[3]

Second.  Still, it
is insisted that because the complaint did not allegation of section 4(a)(1),
the Bank did not present evidence – which, it is claimed, it had all the time –
to grave that in writing the letter the respondent employees were not at all
engaged in a concerted activity but were merely out to aid one who at the time
was fighting for the control of the Bank. 
But even if this case were to be decided strictly on section 4(a)(5)
grounds, still the Bank is not excused from its duty to come forward with the
evidence it claims it has, to prove that the respondent employees were not in
fact engaged in a pro­tected activity. 
For indeed it is now settled that violations of paragraphs (2), (3), (4), (5), and
(6) are also violations of section 4(a)(1), as section 4 is in fact intended to
secure the right of self-organization, as declared in section 3, to form, join
or assist labor organizations to bargain collectively and to engage in
concerted activities for the purpose of collective bargaining and other mutual
aid or protection.^[4]

Third.  It
is further contended that the Bank could not be found guilty of a refusal to
bargain because the respondent employees, in the first instance did not follow
the grievance procedure outlined in the collective bargaining agreement with
the R.S.B. Employees Union, which called for the creation of a union committee
to take up grievances with the Bank’s representative.

The argument is
fallacious.  It assumes the existence of
a specific procedure for the handling of
grievances when the fact is that
no specific procedure governs the present case because the respondent employees
do not belong to one union.  They are officers of different unions from three bargaining
units in the Bank.  As a group they are
governed by no collective bargaining with the Bank.  Yet they were engaged in a concerted activity,
interference with which is an unfair labor practice.^[5]

Indeed, the finding of
refusal to bargain is based on the Bank’s failure to process its own grievance
– what it considered was the employees’ libel in giving undue publicity to
their griev­ances – through a grievance committee meeting.  As stated in the main decision in this case,
not even the Bank’s judgment that the respondent employees committed libel could excuse it from its
duty to bargain collectively, which
includes the adjustment of grievance.

Furthermore, even
assuming that the respondent employees failed to observe procedure, the Bank
was not thereby justified in unilaterally discharging them.  At most
such failure could justify the Bank in
ignoring their demand.

Fourth.  Finally,
invoking the ruling in Philippine Air Lines v. Philippine
Air Lines Employees
Association,^[6] the Bank pleads for a mitigation of backwages.  Indeed,
the amounts which the respondent employees have or could have earned during the period for which the backwages are granted should be deducted.  With respect to actual earnings,
deductions are allowed because of the law’s abhorrence for double compensation,
and with respect to money which an employee could have earned, deductions are
founded on the employee’s duty to mitigate and diminish his loss.

However, the plea should be addressed to the Court of Industrial
Relations when this case is remanded to it for execution of the judgment.  The only issue here is the illegality of the
dismissal of the employees.  As this
Court explained in the PAL case, the question of deduction becomes
relevant and material only after the dismissal is finally decided to be
illegal.

ACCORDINGLY, the motion for reconsideration is denied.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Angeles, and Fernando, JJ., concur.

^[1]
Cf. United States
v. Lim San, 17 Phil. 273, 278-281 (1910).

^[2]
304 U.S. 333 (1937).

^[3]
Id. at 349-350.

^[4]
NLRB v. Express Publishing Co., 312 U.S. 426 (1941).

^[5]
NLRB v. Poenix Mutual Life Ins. Co., 167 F.2d
983 (7th Cir. 19).

^[6]
60 O.G. 8269 (1960).