UNION OF FILIPRO EMPLOYEES (UFE), MANUEL L. SARMIENTO, BENJAMIN M. ALTAREJOS, RODOLFO D. PAGLINAWAN, GARMELITA G. NUQUI, CORAZON Y. SAZON, RODRIGO P. LUCAS, RUDOLPH C. ARMAS, ED…

This petition assails the decision of the NLRC, dated November 2,
1988 on the consolidated appeals of petitioners, the dispositive
portion of which provides as follows:

“1.     In NLRC Case
No. NCR-12-4007-85 and NLRC Case
No. NCR-1-295-86 –

a.       Declaring the strike
illegal;

b.       Declaring the
following respondent union officers, namely: M.L. Sarmiento,
B.M. Altarejos, R.D. Paglinawan,
C.G. Nuqui, C.Y. Sazon, R. Armas, E. Abel la, A. A. Cañete,
A.B. Mira, P.C. Caringal, E. Leonardo, E.C. Nuñez, P.D. San Jose, E. Villena,
A. Ricafrente, M. Lantin,
A. Montojo, R. Mansud, R.
Diaz, R. Urqelles, C. San Jose, E. Bunyi, N. Centeno, R. Gacutan, G. de Borja, N. Nipales, E. San Pedro, C. Ponce, J. Castro, R. Beo, E. Quino, M. Roxas, R. Arandela, W. Ramirez,
I. Natividad, S. Pampang,
D. Canlobo, R. Calong-Calong,
G. Noble, E. Sayao, C. Cenido,
P. Mijares, P. Quitlong, A.
Avelino, L. Payabyab, I. Rieza, G. Pre, D. Belarmino, to
have lost their employment status;

c.       Ordering the
reinstatement of the following respondents-appellants:  Juanito Capili, Carlo Medina, Rodrigo Lucas, Adolfo Castillo Jr., Venusito Solis, Ricardo Arevalo, Quezon G. Mateo, Jr., Dionisio Completo, Felix Esquerra, Manuel dela Fuente and Reymundo Almenanza, to their
former or equivalent positions without loss of seniority rights but without backwages;

d.       Declaring the union
(UFE) guilty of unfair labor practice; and

e.       Dismissing the union
complaint for unfair labor practice.

2.       In RAB-X-2-0047-86,
the decision sought to be set aside is AFFIRMED and the individual
respondents-appellants namely: Roy Baconguis, Jerome
T. Fiel, Efren P. Dinsay, Anastacio G. Caballero,
Susan E. Berro, Jose T. Isidto,
Wilson C. Barros, Rogelio E. Raiz,
Manuel A. Lavin, Cipriano
P. Lupeba, are hereby declared to have lost their
employment status;

3.       In NLRC-00-09-0385-87,
the challenged decision is likewise AFFIRMED, except as it affects Cesar S.
Cruz, who is ordered reinstated to his former or equivalent position without backwages.” (pp. 417-418, Rollo)

and the
resolution dated March 7, 1989,
quoted as follows:

“NLRC CASE No. NCR-12-4007-85 entitled Union of Filipro
Employees (UFE).  Petitioner-Appellants,
versus, Filipro, Inc., et al., Respondents-Appellees, NLRC CASE No. NCR-1-295-86 entitled
Nestle Phils., Inc., Petitioner-Appellee,
versus, Union of Filipro
Employees, et al., Respondents-Appellants, NLRC CASE No. RAB-X-2-0047-86
entitled Nestle Phils., Inc., Petitioner-Appellee, versus, Cagayan de Oro Filipro Workers Union-WATU,
et al., Respondents-Appellants, NCR-00-09-0385-87 entitled Union of Filipro Employees (UFE) and its officers,
Complainants-Appellants, versus, Nestle Phils., et
al., Respondents-Appellees.  The Commission sitting en banc, after
deliberation, resolved to rectify par. 3 of the dispositive
portion of our November 2, 1988 resolution by ordering the reinstatement of Quezon G. Mateo, Jr. and Dionisio Completo to their former or equivalent position without backwages and to deny the motion for reconsideration filed
by appellants UFE and its Officials adversely affected by said
resolution.” (p. 429, Rollo)

In a lengthy and voluminous petition, dwelling largely on facts,
petitioner Union of Filipro Employees and 70 union
officers and a member (henceforth “UFE”) maintain that public
respondent NLRC had acted with grave abuse of discretion in its affirmance of the decisions of the Labor Arbiters a quo,
declaring illegal the strikes staged by UFE.

Respondent NLRC premised its decision on the following sets of
facts:

1.       In
NCR 12-4007-85 and NCR 1-295-86:

UFE filed a notice of strike on November 14, 1985 (BLR-NS-11-344-85) with the Bureau of
Labor Relations against Filipro (now Nestle
Philippines, Inc., [“Nestle”]). 
On December 4, 1988, UFE filed a complaint for Unfair Labor Practice
(ULP) against Nestle and its officials for violation of the Labor Code (Art.
94) on Holiday Pay, non-implementation of the CBA provisions (Labor Management
Corporation scheme).  Financial
Assistance and other unfair labor practice (p. 381, Rollo).

Acting on Nestle’s petition seeking
assumption of jurisdiction over the labor dispute  or its certification to the NLRC for
compulsory arbitration, then Minister of Labor and Employment Blas F. Ople assumed
.jurisdiction over the dispute and issued the following order on December 11, 1985:

“WHEREFORE, this Office hereby assumes jurisdiction over the
labor dispute at Filipro, Inc. pursuant to Article
264(g) of the Labor Code of the Philippines, as amended.  In line with this assumption a strike,
lockout, or any other form of concerted action such as slowdowns, sitdowns, noise barrages during office hours, which tend to
disrupt company operations, are strictly enjoined.

Let a copy of this Order be published in three (3) conspicuous
places inside company premises for strict compliance of all concerned.”
(p. 381-382, Rollo)

On December 20, 1985, UFE filed a petition for certiorari with
prayer for issuance of temporary restraining order, with this Court (G.R. No.
73129) assailing the assumption of jurisdiction by the Minister.  Notwithstanding the automatic injunction
against any concerted activity, and an absence of a restraining order, the
union members, at the instigation of its leaders, and in clear defiance of
Minister Ople’s Order of December 11, 1985, staged a
strike and continued to man picket lines at the Makati
Administrative Office and all of Nestle’s factories
and warehouses at Alabang, Muntinlupa,
Cabuyao, Laguna, and Cagayan
de Oro City. 
Likewise, the union officers and members distributed leaflets to
employees and passersby advocating a boycott of company products (p. 383, Rollo).

On January 23, 1986, Nestle filed a petition to declare the
strike illegal (NCR-1-295-86) premised on violation of the CBA provisions on
“no strike/no lockout” clause and the grievance machinery provisions
on settlement of disputes.

On January 30, 1986, then Labor Minister Ople
issued another Order, with this disposition:

“WHEREFORE, in line with the Order of December 11, 1985, this
Office hereby orders all the striking workers to report for work and the
company to accept them under the same terms and conditions prevailing before
the work stoppage within forty eight (48) hours from notice of this Order.

The Director of Labor Relations is designated to immediately
conduct appropriate hearings and meetings and submit his recommendations to
enable this Office to decide the issues within thirty (30) days.” (p. 383,
Rollo)

Despite receipt of the second order dated January 30, 1986, and
knowledge of a notice caused to be published by Nestle in the Bulletin on
February 1, 1986, advising all workers to report to work not later than
February 3, 1986, the officers and members of UFE continued with the strike.

On February 4, 1986, the Minister B. Ople
denied their motion for reconsideration of the return-to-work order portion as
follows:

“WHEREFORE, the motion for reconsideration is hereby denied
and no further motion of similar nature shall be entertained.

“The parties are further enjoined from committing acts that
will disrupt the peaceful and productive relations between the parties while
the dispute is under arbitration as well as acts considered illegal by law for
the orderly implementation of this Order like acts of coercion, harassment,
blacking of public thoroughfares, ingress and egress to company premises for
lawful purposes or those undertaken without regard to the rights of the other
party.

“Police and military authorities site
requested to assist in the proper and effective implementation of this Order.”
(p. 384, Rollo)

UFE defied the Minister and continued with their strike.  Nestle filed criminal charges against those
involved.

On March 13, 1986, the new Minister of Labor and Employment, Augusto B. Sanchez, issued a Resolution, the relevant
portions of which stated thus:

“This Office hereby enjoins all striking workers to
return-to-work immediately and management to accept them under the same terms
and conditions prevailing previous to the work stoppage except as qualified in
this resolution. the management of Nestle Philippines is further directed to
grant a special assistance as suggested by this Ministry in an order dated 30
January 1986 to all striking employees covered by the bargaining units at Makati, Alabang, Cabuyao and Cagayan de Oro, City in an amount equivalent to their weighted average
monthly basic salary, plus the cash conversion value of the vacation leave
credits for the year 1986, payable not later than five (5) days from the date
of the actual return to work by the striking workers.” (p. 385, Rollo)

On March 17, 1986, the strikers returned to work.

On March 31, 1986, we granted UFE’s
Motion to Withdraw its Petition for Certiorari (G.R. No. 73129) (p. 385, Rollo).

On April 23, 1986, Minister Sanchez rendered a Decision, the dispositive portion of which reads:

“WHEREFORE, the Union charge for unfair labor practices is hereby
dismissed for want of merit.  Nestle
Philippines is hereby directed to make good its promise to grant an additional
benefit in the form of bonus equivalent to one (1) month’s gross compensation
to all employees entitled to the same in addition to the one-month weighted
average pay granted by this office in the return-to-work Order.” (p. 786, Rollo)

On June 6, .1986, Minister Sanchez modified the foregoing
decision as follows:

“WHEREFORE, our 23 April 1986 Decision is hereby modified as
fallows:

“1.     NestIe Philippines is directed to pay the Anniversary bonus
equivalent to one month basic salary to all its employees in lieu of the one
month gross compensation previously ordered by this office.” (p. 787, Rollo)

On November 13, 1987, after, trial on the merits, Labor
Arbiter Eduardo G. Magno issued his decision,
disposing as follows:

“WHEREFORE, judgment is hereby, rendered:

“1.     Declaring
the strike illegal.

“2.     Declaring all the
respondent union officers, namely: M.L. Sarmiento,
R.M. Alterejos, R.D. Paglinawan,
C.G. Nuqui, C.Y. Sazon, R.
Lucas, R. Armas, E. Abella,
A.A. Cañete, J.T. Capili,
A.S. Castillo, Jr., P.C. Caringal, E. Leonardo, E.B.
Mira, E.C. Nuñez, P.D. San Jose, V. Solis, E. Villena, A. Ricafrente, M. Lantin, A. Mortojo, R. Munsod, R. Diaz, R. Urgelles, C.
San Jose, E. Bunyi, N. Centeno,
R. Gacutan, G. de Borja, N.
Nipales, E. San Pedro, M. de la Fuente,
C. Medina, C. Ponce, J. Castro Jr., R. Arevalo, R. Beo, F. Esguerra, R. Almenanza, E. Quino, M. Roxas, R. Arandela, W. Ramirez,
I. Natividad, S. Pampang,
D. Ganlobo, G. Noble, E. Sayao,
C. Cenido, F. Mijares, R. Calong-Calong, P. Quitlong, D. Completo, A. Avelino, L. Payabyab, I. Rieza, D. Belarmino, Q. Mateo, and C. Pre to have lost their
employment status.

“3.     Declaring the
union guilty of unfair labor practice; and

“4.     Dismissing
the Union complaint for unfair labor practice.” (pp. 380-381, Rollo)

2.  In
RAB-X-2-00-47-86:

Filipro (Nestle) and the Cagayan de Oro Filipro Workers Union – WATU,
renewed a 3-year contract, made effective, from December 1, 1984 up to June 30, 1987. 
Petitioners signed the CBA as the duly-elected officers of the Union.

On January 19, 1985, the union officers, together with other
members of the union sent a letter to Workers Alliance Trade Unions (WATU),
advising them “that henceforth we shall administer the CBA by ourselves
and with the help of the Union of Filipro Employees
(UFE) to where we have allied ourselves.” WATU disregarded the union’s
advice, claiming to be the contracting party of the CBA, UFE -filed a petition
(Case No. CRD-M-88-326-85) for administration of the existing
CBAs at Cebu, Davao and Cagayan de Oro
bargaining units against TUPAS and WATU.

From January 22, 1986 to March 14, 1986, the rank and file
employees of the company staged a strike at the instigation of the UFE officers,
who had, represented themselves as officers.

Nestle filed a petition to declare the strike illegal.  The strikers countered that their strike was
legal because the same was staged pursuant to the notice of strike filed by UFE
On November 14, 1985 (BLR-NS-11-344-85), of which they claim to be members,
having disaffiliated themselves from CDO-FWU-WATU.

On November 24, 1987, Executive Labor Arbiter Zosimo
Vasallo issued his decision, disposing as follows:

“WHEREFORE, in view of the foregoing, judgment is hereby
rendered:

“1.     Declaring the
strike illegal;

“2.     Declaring
respondent union guilty of unfair labor practice; and

“3.     Declaring the
following individual respondent Union officers namely: Roy Y. Baconguis, Jerome T. .Fiel, Efren P. Dinsay, Anastacio G. Caballero,
Susan E. Berro, Jose T. Isidro, Wilson C. Barros, Rogelio E. Raiz, Manuel
A. Lavin and Cipriano P. Lupeba to have lost their employment status.” (p. 388,
Rollo)

3.  In
NCR-00-09-`03285-87

(a) On August 13, 1986, UFE, its officers and members staged e
walkout from their jobs, and participated in the Welga
ng Bayan.  Nestle filed a petition to declare the
walkout illegal (NLRC Case No. SRB-lV-1831-87), (p. 392, Rollo);

(b) On September 21,
1986, complainants (UFE) again did not proceed to their work, but
joined the picket line in sympathy with the striking workers of Southern
Textile Mills, which became the subject of an Illegal Strike Petition (NLRC Case ,SRB-IV-I-1831-87) (p. 392, Rollo);

(c) On November 12, 1986, UFE its officers and members just left
their work premises and marched towards Calamba in a
demonstration over the slaying of a labor leader, x x
x hence a complaint for Illegal Walkout (NLRC Case
No. SRB-IV-1833-87) was filed by Nestle (p. 392, Rollo);

(d) On December 4, 1986, UFE filed a Notice of Strike with the
Bureau of Labor Relations (BLR-NS-12-531-86) (to protest the unfair labor
practices of Nestle, such as hiring of contractual workers to perform regular
jobs and wage discrimination) (p. 392, Rollo);

(e) On December 23, 1986,
then Minister Augusto S. Sanchez certified the labor
dispute to the Commission for compulsory arbitration, strictly enjoining any
intended or actual strike or lockout (p. 392, Rollo)

(f) On August 18, 1987, UFE union officers and members at the Cabuyao factory again abandoned their jobs and just walked
out, leaving unfinished products on line and raw materials, leading to their
spoilage.  The walk-out resulted in
economic losses to the company.  Nestle
filed a Petition to Declare the Walkout Illegal.  (NLRC Case No.
SRB-IV-3-1898-87) (p. 407, Rollo);

(g) On August 21, 1987, UFE union officers and members at the Alabanq factory also left their jobs in sympathy with the
walkout staged by their Cabuyao counterparts.  Nestle filed again a Petition to Declare the
Strike Illegal (NLRC-NCR-Case No. 00-08-03003-87) (p. 407, Rollo);

(h) On August 27, 1987, UFE union members at the Alabang and Cabuyao factories, in
disregard of the Memorandum of Agreement entered into by the Union and
Management on August 21, 1987, (to exert their best efforts for the
normalization of production targets and standards and to consult each other on
any matter that may tend to disrupt production to attain industrial peace)
participated in an indignation rally in Cabuyao
because of the death of two (2) members of PAMANTIC, and in Alabang
because one of their members was allegedly mauled by a policeman during the
nationwide strike on August 26, 1987 (p. 408, Rollo);

(i) On September 4, 1987, around 6:00
P.M. all sections at the Alabang factory
went on a 20-minute meal break simultaneously, contrary to the agreement and
despite admonition of supervisors, resulting in complete stoppage of their
production lines. Responsible officials namely: Eugenic San Pedro, Carlos Jose,
and Cesar Ponce, were suspended from work for six (6) days without pay (p. 408,
Rollo).

(j) From September 5 to 8,. 1987, at the
instigation of UFE union officers, all workers staged a sitdown
strike; and

(k) On September 7, 1987, Cabuyao’s
culinary section’s union members sympathized with the sitdown
strike at Alabang, followed at 12:30 P.M. by the
whole personnel of the production line and certain areas in the Engineering
Department.  These sitdown
strikes at the Alabang and Cabuyao
factories became the subject of two separate petitions to declare the strike
illegal (NCR-Case No. 00-09-03168-87 and SRB-IB-9-1903-87, respectively) (p.
408, Rollo);

(1)     On September 8, 1987,
Hon. F. Drilon issued the following order:

“All the workers are hereby directed to return to work immediately,
refrain from resorting to any further slowdown, sitdown
strike, walkout and any other kind of activities that may tend to disrupt the
normal operations of the company.  The
company is directed to accept all employees and to resume normal operations.

Parties are likewise directed to cease and desist from committing
any and all acts that would aggravate the situation.” (p. 394, Rollo)

(m) Despite the order, UFE staged a strike on September 11, 1987 without notice
of strike, strike vote and in blatant defiance of a then Labor Minister
Sanchez’s certification order dated November
23, 1986 and Secretary Drilon’s
return-to-work order dated September 8,
1987.” (p. 409, Rollo);

(n) Nestle sent, individual letter of termination dated September
14, 1987 dismissing them from the service effective immediately for knowingly
instigating and participating in an illegal strike, defying the order of the
Secretary of Labor, dated September. 8, 1987, and other illegal acts (pp.
394-395, Rollo)

On September 22, 1987, UFE filed a complaint for Illegal
Dismissal, ULP and damages (NLRC NCR-“00-03285-87).  Labor Arbiter Evangeline Lubaton ruled on both issues of dismissal and strike
legality, upon the premise that the issue on validity of the dismissal of the
individual complainants from employment “depends on the, resolution of the
issue on whether or not the strike declared by complainants was illegal.”

The decision dated January 12, 1988, disposed as follows;

“WHEREFORE, in view of the foregoing, judgment is hereby
rendered:

1.       Dismissing the
instant complaint for lack of merit; and

2.       Confirming
the dismissal of all individual complainants herein as valid and legally
justified.” (p. 376, Rollo)

UFE appealed, assailing the three decisions, except that rendered
in Case No. NLRC-NCR-12-4007-85 (Complaint for Unfair Labor Practice Against
UFE) “because it was already rendered moot and academic by the return to
work agreement and order dated March 10 and 13, 1986, respectively.” (p.
49, Rollo)

Upon UFE’s subsequent motion, the three
appeals were ordered consolidated and elevated to the NLRC en banc (p.
95, Rollo).

The NLRC affirmed the unanimous decisions of the three labor
arbiters which declared the strikes illegal, premised on the view that
“the core of the controversy rests upon the legality of the strikes.”

In the petition before Us, UFE assigns several errors (pp.
63-321, Rollo), which We
have summarized as follows:

1.   that Articles 263
and 264 are no longer good laws, since compulsory arbitration has been curtailed
under the present Constitution.

2.   that the Question on the legality of the
strike was rendered moot and academic when Nestle management accepted, the
striking workers in compliance with the return-to-work order of then Minister
of Labor Augusto Sanchez dated March 13, 1986,
(citing the case of Bisayan Land Transportation Co.
v. CIR (102 Phil. 439) and affirmed in the case of Feati
University Faculty Club (PAFLU) v. Feati University,
G.R. No, L-31503, August 15, 1974,
58 SCRA 395).

3.   that the union did not violate the no-strike/no
lockout clause, considering that the probition
applies to economic strikes, pursuant to Philippine Metal Foundries v. CIR,
G.R. No. L-34948-49, May 15, 1979,
90 SCRA 135. UFE, it is claimed, premised their strike on a violation of
the labor standard laws or non payment of holiday pay, which is, in effect, a
violation of the CBA.

4.   on the commission of illegal and prohibited
acts which automatically rendered the strike illegal, UFE claimed that there
were no findings of specific acts and identities of those participating as to
render them liable (ESSO Phils, v. Malayang Manggagawa sa ESSO, G.R. No. L-36545, January 26, 1977, 75 SCRA 72; Shell Oil Workers Union v. CIR, G.R. No.
L-28607, February 12, 1972, 43 SCRA
224). By holding the officers liable for the illegal-acts of coercion,
or denial of free ingress and egress,” without specifying and finding out
their specific participation therein, the Labor Arbiter resorted to the principle
of vicarious liability which has since been discarded in the case of Benguet Consolidated v. CIR, G.R. No. L-24711,
April 30,
1968, 23 SCRA 465.

We agree with the Solicitor General that the petition failed to
show that the NLRC committed grave abuse of discretion in its affirmance of the decisions of the Labor Arbiters a quo.

At the outset, UFE Questions the power of the Secretary of Labor
under Art. 263(g) of the Labor Code to assume jurisdiction over a labor dispute
tainted with national interests, or to certify the same for compulsory
.arbitration.  UFE contends that Arts.
263 and 264 are based on the 1973 Constitution, specifically Sec. 9 of Art. II
thereof, the pertinent portion of which reads:

“Sec. 9.  x x
x.  The
State may provide for compulsory arbitration.” (p. 801, Rollo)

UFF argues that since the aforecited
provision of Sec. 9 is no longer found in the 1987 Constitution, Arts. 263 (g)
and 264 of the Labor Code are now unconstitutional and must be ignored.”

We are not persuaded.  We
agree with the Solicitor General that on the contrary, both provisions are
still applicable.

We quote:

“Article 7 of the New Civil Code declares that:

‘Article 7.  Laws &re repealed only by subsequent
ones, and their violation or non-observance shall not be excused by disuse or
custom or practice to the contrary.

x x x.’’

“In the case at bar, no law has ever been passed by Congress
expressly repealing Articles 263 and 264 of the Labor Code. Neither may the
1987 Constitution be considered to have impliedly repealed the said Articles,
considering that there is no showing that said articles are inconsistent with
the said Constitution.  Moreover, no
court has ever declared that the .said articles are inconsistent with, the 1987
Constitution.

“On the contrary, the continued validity and operation of
Articles 263 and 264 of the Labor Code has been recognized by no less than the
Congress of the Philippines when the latter enacted into law R.A. 6715,
otherwise known as Herrera Law, Section 27 of which-amended paragraphs (g) and
(i) of Articles 263 of the Labor Code.

“At any rate, it must be noted that Articles 263 (q) and 264
of the Labor Code have been enacted pursuant to the police power of the State,
which has been defined as the power inherent in a Government to enact laws,
within constitutional limits, to promote the order, safety, health, morals and
general welfare of society (People vs. Vera Reyes, 67 Phil. 190).  The police power, together with the power of
eminent domain and the power of taxation, is an inherent power of government
and does not need to ‘ be expressly conferred by the Constitution.  Thus, it is submitted that the argument of
petitioners that Articles 263 (g) and 264 of the Labor Code do not have any
constitutional foundation is legally inconsequential.” (pp. 801-803, Rollo)

On the issue of the legality of the strike committed, UFE seeks
to absolve itself by pointing out qualifying factors such as motives, good
faith, absence of findings on specific participation and/or liability, and
limiting the no-strike provision to economic strikes.

UFE completely misses the underlying principle embodied in Art.
264(g) on the settlement of labor disputes and this is,
that assumption and certification orders are executory
in character and are to be strictly complied with by the parties
even during the pendency of any petition questioning
their validity.  This extraordinary
authority given to the Secretary of Labor is aimed at arriving at a peaceful
and speedy solution to labor disputes, without jeopardizing national interests.

Regardless therefore of their motives, or the validity of their
claims, the striking workers must cease and/or desist from any and all acts
that tend to, or undermine this authority of the Secretary of Labor, once an
assumption and/or certification order is issued.  They cannot, for instance, ignore
return-to-work orders, citing unfair labor practices on the part of the
company, to justify their actions.  Thus,
the NLRC, in its decision, re-emphasized the nature of a return-to work order
within the context of Art. 264(g) as amended by BP Nos. 130 and 227:

“x x x

“One other point that must be underscored is that the
return-to-work order is issued pending the determination of the legality or
illegality of the strike.  It is not
correct to say that it may be enforced only if the strike is legal and may be
disregarded if the strike is illegal, for the purpose precisely is to
maintain the status quo while the determination is being made.  Otherwise, the workers who contend that their
strike is legal can refuse to return to work to their work and cause a standstill
on the company operations while retaining the positions they refuse to
discharge or allow the management to fill. 
Worse, they will also claim payment for work not done, on the ground
that they are still legally employed although actually engaged in activities
inimical to their employer’s interest. (Underscoring supplied)

“This is like eating one’s cake and having it too, and at the
expense of the management.  Such an
unfair situation surely was not contemplated by our labor laws and cannot be justified
under the social justice policy, which is a policy of fairness to both labor
and management.  Neither can this
unseemly arrangement be sustained under the due process clause as the order, if
thus interpreted, would be plainly oppressive and arbitrary.

“x x x”
(p. 415, Rollo)

Also, in the cases of Sarmiento v.
Judge Tuico, G.R. No. 75271-73; Asian Transmission
Corporation v. National Labor Relations Commission, G.R. 77567, 27 June 88, 162
SCRA 676).  We stated:

“The return to work order does not so much confer a right
as it imposes a duty; and while as a right, it may be waived, it must be
discharged as a duty even against the worker’s will.  Returning to work in this situation is not a
matter of option or voluntariness but of
obligation.  The worker must return to
his job together with his co-workers so the operations of the company can be
resumed and it can continue serving the public and promoting its
interest.”

We also wish to point out that an assumption and/or certification
order of the Secretary of Labor automatically results in a return-to-work of
all striking workers, whether or not a corresponding order has been issued by
the Secretary of Labor.  Thus, the
striking workers erred when they continued with their strike alleging absence
of a return-to-work order.  Article
264(g) is clear.  Once an
assumption/certification order is issued, strikes are
enjoined, or if one has already taken place, all strikers shall
immediately return to work.

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.

The NLRC also gave the following reasons:

1.   The strike was staged in violation of the
existing CBA provisions on “No Strike/No Lockout Clause” stating that
a strike, which is in violation of the terms of the collective bargaining
agreement, is illegal, especially when such terms provide for conclusive
arbitration clause (Liberal Labor Union vs. Phil. Can Co., 91 Phil. 72; Phil.
Airlines vs. PAL Employees Association, L-8197, October 31, 1988).  The main purpose of such an agreement is to
prevent a strike and it must, therefore, be adhered to strictly and respected
if their ends are to be achieved (pp. 397-398, Rollo).

2.   Instead of exhausting all the steps provided
for in the grievance machinery provided for in the collective bargaining
agreement to resolve the dispute amicably and harmoniously within the plant
level, UFE went on strike (p. 398, Rollo).

3.   The prescribed mandatory cooling-off period
and then 7-day strike and after submission of the report of strike vote at Nestle’s Makati Offices and Muntinlupa and Cabuyao Plants
were not complied with (NLRC-NCR-12-4007-85 & NCR-1-295-86), while no
notice of strike was filed by respondents when they staged the strike at Nestle’s Cagayan de Oro Plant (RABX-2-0047-86) contrary to the pertinent
provision of Articles 263 and 264 of the Labor Code, emphasizing that “the
mandatory character of these cooling-off periods has already, been
categorically ruled upon by the Supreme Court” (National Federation of
Sugar Workers (NFSW) vs. Ovejera, et al., 114 SCRA
354) (p. 402, Rollo).

4.   In carrying out the strike, coercion, force,
intimidation, violence with physical injuries, sabotage, and the use of
unnecessary and obscene, language or epithets were committed by the respondent
officials and members of either UFE or WATU. 
It is well-settled that a strike conducted in this manner is illegal
(United Seamen’s Union vs. Davao Shipowners
Association, 20 SCRA 1226). In fact, criminal cases were filed with the Makati Fiscal’s Office (p. 402, Rollo)

Thus, the NLRC correctly upheld the illegality of the strikes and
the corresponding dismissal of the individual complainants because of their
“brazen disregard of successive lawful orders of then Labor Ministers Blas
F. Ople, Augusto Sanchez and Labor Secretary Franklin Drilon dated December 11,
1985, January 30, 1986 and February 4, 1986, respectively, and the cavalier
treatment of the provisions of the Labor Code and the return-to-work orders of
the Minister (now Secretary) of Labor and Employment, or Articles 264 and 265
(now renumbered Arts. 263 and 264), providing in part as follows:

“ART. 263.  Strikes,
picketing and lockouts. –

x x
x  x x x     x x x

“(g) When in his opinion there exists a labor dispute causing
or likely to cause strikes or lockouts adversely affecting the national
interest, such as may occur in but not limited to public utilities, companies
engaged in the generation or distribution of energy, banks, hospitals, and
export-oriented industries including those within export processing zones, the
Minister of Labor and Employment shall assume .jurisdiction over the dispute
and decide it or certify the same to the Commission for compulsory
arbitration.  Such assumption or
certification shall have the effect of automatically enjoining the intended or
impending strike or lockout as specified in the assumption or certification
order.  If one has already taken place at
the time of assumption, or certification, all striking or locked employee shall
immediately return to work and the employer shall immediately resume operations
and readmit all workers under the same terms and conditions prevailing before
the strike or lockout.  The Minister
may seek the assistance of law enforcement agencies to ensure compliance with
this provision as well as with such orders as he may issue to enforce the same.
(Underlining supplied)

“The foregoing notwithstanding, the President of the
Philippines shall not be precluded from determining the industries wherein
(sic) his opinion labor disputes may adversely affect the national interest,
and from intervening at any time and assuming jurisdiction over any labor dispute
adversely affecting the national interest in order to settle or terminate the
same.

x x
x       x x x     x x x

ART. 264. Prohibited activities. –

(a) No labor organization or employer shall declare a strike or
lockout without first having bargained collectively in accordance with Title
VII of this Book or without first having filed the notice required in the
preceding Article or without the necessary strike or lockout .vote first having
been obtained and reported to the Ministry.

No strike or lockout shall be declared a strike assumption of
jurisdiction by the President or the Minister or alter certification or
submission of the dispute, to compulsory or voluntary arbitration or during
the pendency at cases involving the same grounds for
the strike or lockout.” ([pp. 399-401, Rollo])
(Underlining supplied)

On the alleged lack of jurisdiction of Labor Arbiter lubaton, NLRC has clarified that the question on the
legality of strike was properly resolved by the Labor Arbiter, not only because
the question is perfectly within the original and exclusive jurisdiction of the
Labor Arbiter to adjudicate, but also because the issue was not subsumed
by the Order o-f Labor Minister Sanchez, dated December 23, 1986, certifying
the Notice of Strike dated December 4, 1986 for compulsory arbitration, further
clarifying that the issue of whether or not the strike staged on September 11,
1987 by UFE and its officials and members was illegal is a prejudicial
question to the issue of whether or not the complainants were illegally
dismissed. We shall not belabor the issue any further.

ACCORDINGLY, the petition is DISMISSED, and the decision of
public respondent-NLRC, dated November 2, 1988, and its Resolution, dated March
7, 1989, are both AFFIRMED, in their entirety. No costs.

SO ORDERED.

Narvasa, Gancayco,
and Griño-Aquino, JJ., concur.

Cruz, J., no part, related to one of the accused.