NATIONAL UNION OF WORKERS IN THE HOTEL RESTAURANT AND ALLIED INDUSTRIES (NUWHRAIN-APLIUF) DUSIT HOTEL NIKKO CHAPTER, petitioner,

vs THE HONORA!LE COURT OF APPEALS (For"er Ei#$t$ Division), THE NATIONAL LA!OR RELATIONS CO%%ISSION (NLRC), PHILIPPINE HOTELIERS INC , o&ner 'n( oper'tor o) DUSIT HOTEL NIKKO 'n(*or CHI+UKI FU,I%OTO, 'n( ESPERAN-A . AL.E-, respon(ents F'/ts0 The Union is the certified bargaining agent of the regular rank-and-file employees of Dusit Hotel Nikko (Hotel). The Union submitted its C ! negotiation proposals to the Hotel. !s negotiations ensued" the parties failed to arri#e at mutually acceptable terms and conditions. Due to the bargaining deadlock" the Union filed a Notice of $trike on the ground of the bargaining deadlock %ith the NC& . Thereafter" conciliation hearings %ere conducted %hich pro#ed unsuccessful. Conse'uently" a $trike (ote %as conducted by the Union on %hich it %as decided that the Union %ould %age a strike. $oon thereafter" the Union held a general assembly at its office located in the Hotel)s basement" %here some members sported closely cropped hair or cleanly sha#en heads. The ne*t day" more male Union members came to %ork sporting the same hairstyle. The Hotel pre#ented these %orkers from entering the premises claiming that they #iolated the Hotel)s +rooming $tandards. ,n #ie% of the Hotel)s action" the Union staged a picket outside the Hotel premises. -ater" other %orkers %ere also pre#ented from entering the Hotel causing them to .oin the picket. /or this reason the Hotel e*perienced a se#ere lack of manpo%er %hich forced them to temporarily cease operations in three restaurants. The Hotel terminated the ser#ices of 01 Union officers and 23 members4 and suspended 53 employees for 67 days" 85 employees for 39 days" 8 employees for 37 days" and 6 employees for 9 days. :n the same day" the Union declared a strike. $tarting that day" the Union engaged in picketing the premises of the Hotel. During the picket" the Union officials and members unla%fully blocked the ingress and egress of the Hotel premises.

The $ecretary assumed .urisdiction o#er the labor dispute and certified the case to the N-;C for compulsory arbitration. The $ecretary<s :rder includes this pro#ision= d. the Hotel is gi#en the option" in lieu of actual reinstatement" to merely reinst'te the dismissed or suspended %orkers in the payroll in light of the special circumstances attendant to their reinstatement4 Iss1es 3. >hether the $ecretary has discretion to impose ?payroll? reinstatement %hen he assumes .urisdiction o#er labor disputes. 0. >hether the Union conducted an illegal strike He2(0 3 +ES4 Union= There is no legal basis for allo%ing payroll reinstatement in lieu of actual or physical reinstatement. !rt. 026(g) of the -abor Code is clear on this point. Hotel= ,t claims that the issue is no% moot and any decision %ould be impossible to e*ecute in #ie% of the Decision of the N-;C %hich upheld the dismissal of the Union officers and members. Court= The Hotel correctly raises the argument that the issue %as rendered moot %hen the N-;C upheld the dismissal of the Union officers and members. ,n order" ho%e#er" to settle this rele#ant issue" the Court decided the issue on the merits. ,t is settled that in assumption of .urisdiction cases" the $ecretary should impose actual reinstatement in accordance %ith the intent and spirit of !rt. 026(g). !s %ith most rules" ho%e#er" this one is sub.ect to e*ceptions. >e held in Manila Diamond Hotel Employees' Union v. Court of Appeals that payroll reinstatement is a departure from the rule" and special circumstances %hich make actual reinstatement impracticable must be sho%n. The peculiar circumstances in the present case #alidate the $ecretary)s decision to order payroll reinstatement instead of actual reinstatement. ,t is ob#iously impracticable for the Hotel to actually reinstate the employees %ho sha#ed their heads or cropped their hair because this %as e*actly the reason they %ere pre#ented from %orking in the first place. /urther" as %ith most labor disputes %hich ha#e resulted in strikes" there is mutual

antagonism" enmity" and animosity bet%een the union and the management. @ayroll reinstatement" most especially in this case" %ould ha#e been the only a#enue %here further incidents and damages could be a#oided. @ublic officials entrusted %ith specific .urisdictions en.oy great confidence from this Court. The $ecretary surely meant only to ensure industrial peace as she assumed .urisdiction o#er the labor dispute. ,n this case" %e are not ready to substitute our o%n findings in the absence of a clear sho%ing of gra#e abuse of discretion on her part. 5 +ES4 Union= ,t maintains that the mass picket conducted by its officers and members did not constitute a strike and %as merely an e*pression of their grie#ance resulting from the lockout effected by the Hotel management. Hotel= ,t argues that the Union)s deliberate defiance of the company rules and regulations %as a concerted effort to paralyAe the operations of the Hotel" as the Union officers and members kne% pretty %ell that they %ould not be allo%ed to %ork in their bald or cropped hair style. Court= >e rule for the Hotel. Noted authority on labor la%" -ud%ig Teller" lists si* (2) categories of an illegal strike" viz.= (3) B%hen itC is contrary to a specific prohibition of la%" such as strike by employees performing go#ernmental functions4 or (0) B%hen itC #iolates a specific re'uirement of la%B" such as !rticle 026 of the -abor Code on the re'uisites of a #alid strikeC4 or (6) B%hen itC is declared for an unla%ful purpose" such as inducing the employer to commit an unfair labor practice against non-union employees4 or (8) B%hen itC employs unla%ful means in the pursuit of its ob.ecti#e" such as a %idespread terrorism of non-strikers Bfor e*ample" prohibited acts under !rt. 028(e) of the -abor CodeC4 or (9) B%hen itC is declared in #iolation of an e*isting in.unctionB" such as in.unction" prohibition" or order issued by the D:-D $ecretary and the N-;C under !rt. 026 of the -abor CodeC4 or (2) B%hen itC is contrary to an e*isting agreement" such as a no-strike clause or conclusi#e arbitration clause. >ith the foregoing parameters as guide and the follo%ing grounds as basis" %e hold that the Union is liable for conducting an illegal strike for the follo%ing reasons=

First" the Union)s #iolation of the Hotel)s +rooming $tandards %as clearly a deliberate and concerted action to undermine the authority of and to embarrass the Hotel and %as" therefore" not a protected action. The appearances of the Hotel employees directly reflect the character and %ellbeing of the Hotel" being a fi#e-star hotel that pro#ides ser#ice to topnotch clients. eing bald or ha#ing cropped hair per se does not e#oke negati#e or unpleasant feelings. The reality that a substantial number of employees assigned to the food and be#erage outlets of the Hotel %ith full heads of hair suddenly decided to come to %ork bald-headed or %ith cropped hair" ho%e#er" suggests that something is amiss and insinuates a sense that something out of the ordinary is afoot. ,t can be gleaned from the records before us that the Union officers and members deliberately and in apparent concert sha#ed their heads or cropped their hair. This %as sho%n by the fact that after coming to %ork on Eanuary 35" 0770" some Union members e#en had their heads sha#ed or their hair cropped at the Union office in the Hotel)s basement. Clearly" the decision to #iolate the company rule on grooming %as designed and calculated to place the Hotel management on its heels and to force it to agree to the Union)s proposals. ,n #ie% of the Union)s collaborati#e effort to #iolate the Hotel)s +rooming $tandards" it succeeded in forcing the Hotel to choose bet%een allo%ing its inappropriately hair styled employees to continue %orking" to the detriment of its reputation" or to refuse them %ork" e#en if it had to cease operations in affected departments or ser#ice units" %hich in either %ay %ould disrupt the operations of the Hotel. This Court is of the opinion" therefore" that the act of the Union %as not merely an e*pression of their grie#ance or displeasure but" indeed" a calibrated and calculated act designed to inflict serious damage to the Hotel)s finances or its reputation. Thus" %e hold that the Union)s concerted #iolation of the Hotel)s +rooming $tandards %hich resulted in the temporary cessation and disruption of the Hotel)s operations is an unprotected act and should be considered as an illegal strike. Second" the Union)s concerted action %hich disrupted the Hotel)s operations clearly #iolated the C !)s ?No $trike" No -ockout? pro#ision. The facts are clear that the strike arose out of a bargaining deadlock in the C ! negotiations %ith the Hotel. The concerted action is an economic strike upon %hich the afore-'uoted ?no strikeF%ork stoppage and lockout? prohibition is s'uarely applicable and legally binding.

T ird" the Union officers and members) concerted action to sha#e their heads and crop their hair not only #iolated the Hotel)s +rooming $tandards but also #iolated the Union)s duty and responsibility to bargain in good faith. y sha#ing their heads and cropping their hair" the Union officers and members #iolated the -abor Code %hich prohibits the commission of any act %hich %ill disrupt or impede the early settlement of the labor disputes that are under conciliation. $ince the bargaining deadlock is being conciliated by the NC& " the Union)s action to ha#e their officers and members) heads sha#ed %as manifestly calculated to antagoniAe and embarrass the Hotel management and in doing so effecti#ely disrupted the operations of the Hotel and #iolated their duty to bargain collecti#ely in good faith. Fourt " the Union failed to obser#e the mandatory 67-('8 /oo2in#-o)) perio( and the seven-('8 stri9e :'n before it conducted the strike. !ast" the Union committed illegal acts in the conduct of its strike. The N-;C ruled that the strike %as illegal since" as sho%n by the pictures presented by the Hotel" the Union officers and members formed human barricades and obstructed the dri#e%ay of the Hotel. There is no merit in the Union)s argument that it %as not its members but the Hotel)s security guards and the police officers %ho blocked the dri#e%ay" as it can be seen that the guards andFor police officers %ere .ust trying to secure the entrance to the Hotel. The pictures clearly demonstrate the tense and highly e*plosi#e situation brought about by the strikers) presence in the Hotel)s dri#e%ay. >hat then are the conse'uent liabilities of the Union officers and members for their participation in the illegal strikeG ;egarding the Union officers and members) liabilities for their participation in the illegal picket and strike" !rt. 028(a)" paragraph 6 of the -abor Code pro#ides that ?;'<n8 1nion o))i/er &$o 9no&in#28 p'rti/ip'tes in 'n i22e#'2 stri9e 'n( 'n8 &or9er or 1nion o))i/er &$o 9no&in#28 p'rti/ip'tes in t$e /o""ission o) i22e#'2 '/ts (1rin# ' stri9e "'8 :e (e/2're( to $'ve 2ost $is e"p2o8"ent st't1s = = = .? The la% makes a distinction bet%een union officers and mere union members. Union officers may be #alidly terminated from employment for their participation in an illegal strike" %hile union members ha#e to participate in and commit illegal acts for them to lose their employment status. Thus"

it is necessary for the company to adduce proof of the participation of the striking employees in the commission of illegal acts during the strikes. Clearly" the 01 Union officers may be dismissed pursuant to !rt. 028(a)" par. 6 of the -abor Code %hich imposes the penalty of dismissal on ? 'n8 1nion o))i/er &$o 9no&in#28 p'rti/ip'tes in 'n i22e#'2 stri9e .? >e" ho%e#er" are of the opinion that there is room for leniency %ith respect to the Union members. ,t is pertinent to note that the Hotel %as able to pro#e before the N-;C that the strikers blocked the ingress to and egress from the Hotel. ut it is 'uite apparent that the Hotel failed to specifically point out the participation of each of the Union members in the commission of illegal acts during the picket and the strike. /or this lapse in .udgment or diligence" %e are constrained to reinstate the 23 Union members.