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*SECOND DIVISION.
599
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Hotel Employees Union v. Court of Appeals, 448 SCRA 190 (2005), that
payroll reinstatement is a departure from the rule, and special circumstances
which make actual reinstatement impracticable must be shown. In one case,
payroll reinstatement was allowed where the employees previously
occupied condential positions, because their actual reinstatement, the
Court said, would be impracticable and would only serve to exacerbate the
situation. In another case, this Court held that the NLRC did not commit
grave abuse of discretion when it allowed payroll reinstatement as an option
in lieu of actual reinstatement for teachers who were to be reinstated in the
middle of the rst term. We held that the NLRC was merely trying its best to
work out a satisfactory ad hoc solution to a festering and serious problem.
Same; Same; Same; The peculiar circumstances in the present case
validate the Secretarys decision to order payroll reinstatement instead of
actual reinstatement.The peculiar circumstances in the present case
validate the Secretarys decision to order payroll reinstatement instead of
actual reinstatement. It is obviously impracticable for the Hotel to actually
reinstate the employees who shaved their heads or cropped their hair
because this was exactly the reason they were prevented from working in
the rst place. Further, as with most labor disputes which have resulted in
strikes, there is mutual antagonism, enmity, and animosity between the
union and the management. Payroll reinstatement, most especially in this
case, would have been the only avenue where further incidents and damages
could be avoided. Public ofcials entrusted with specic jurisdictions enjoy
great condence from this Court. The Secretary surely meant only to ensure
industrial peace as she assumed jurisdiction over the labor dispute. In this
case, we are not ready to substitute our own ndings in the absence of a
clear showing of grave abuse of discretion on her part.
Same; Same; Strikes; Denition of a Strike; Various categories of an illegal
strike.Art. 212(o) of the Labor Code denes a strike as any temporary
stoppage of work by the concerted action of employees as a result of an
industrial or labor dispute. In Toyota Motor Phils. Corp. Workers
Association (TMPCWA) v. National Labor Relations Commission, 537
SCRA 171 (2007), we cited the various categories of an illegal strike, to wit:
Noted authority on labor law,
600
Ludwig Teller, lists six (6) categories of an illegal strike, viz.: (1) [when it]
is contrary to a specic prohibition of law, such as strike by employees
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601
datory periods before conducting or holding a strike. Records reveal that the
Union led its Notice of Strike on the ground of bargaining deadlock on
December 20, 2001. The 30-day cooling-off period should have been until
January 19, 2002. On top of that, the strike vote was held on January 14,
2002 and was submitted to the NCMB only on January 18, 2002; therefore,
the 7-day strike ban should have prevented them from holding a strike until
January 25, 2002. The concerted action committed by the Union on January
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18, 2002 which resulted in the disruption of the Hotels operations clearly
violated the above-stated mandatory periods.
Same; Same; Same; Termination of Employment; Union ofcers may
be validly terminated from employment for their participation in an illegal
strike, while union members have to participate in and commit illegal acts
for them to lose their employment status.Regarding the Union ofcers and
members liabilities for their participation in the illegal picket and strike,
Art. 264(a), paragraph 3 of the Labor Code provides that [a]ny union
ofcer who knowingly participates in an illegal strike and any worker
or union ofcer who knowingly participates in the commission of illegal
acts during a strike may be declared to have lost his employment status
xxx. The law makes a distinction between union ofcers and mere union
members. Union ofcers may be validly terminated from employment for
their participation in an illegal strike, while union members have 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.
Same; Same; Same; Same; Backwages; Union members who participated in
an illegal strike but were not identied to have committed illegal acts are
entitled to be reinstated to their former positions but without backwages.
We held in one case that union members who participated in an illegal strike
but were not identied to have committed illegal acts are entitled to be
reinstated to their former positions but without backwages. We then held in
G & S Transport Corporation v. Infante, 533 SCRA 288 (2007): With
respect to backwages, the principle of a fair days wage for a fair days
labor remains as the basic factor in determining the award thereof.
602
VELASCO, JR.,J.:
In G.R. No. 163942, the Petition for Review on Certiorari under
Rule 45 of the National Union of Workers in the Hotel Restaurant
and Allied Industries Dusit Hotel Nikko Chapter (Union) seeks to
set aside the January 19, 2004 Decision1 and June 1, 2004
Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 76568
which afrmed the October 9, 2002 Deci-
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1Rollo (G.R. No. 163942), pp. 90-100. Penned by then Associate Justice Conrado
M. Vasquez, Jr. and concurred in by Associate Justices Bienvenido L. Reyes and
Arsenio J. Magpale.
2Id., at p. 103.
603
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604
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605
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606
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ban,11 as the strike occurred only 29 days after the submission of the
notice of strike on December 20, 2001 and only four days after the
submission of the strike vote on January 14, 2002. The NLRC also
ruled that even if the Union had complied with the temporal
requirements mandated by law, the strike would nonetheless be
declared illegal because it was attended by illegal acts committed by
the Union ofcers and members.
The Union then led a Motion for Reconsideration of the
NLRCs Decision which was denied in the February 7, 2003 NLRC
Resolution. Unfazed, the Union led a Petition for Certiorari under
Rule 65 with the CA, docketed as CA-G.R. SP No. 76568, and
assailed both the October 9, 2002 Decision and the February 7, 2003
Resolution of the NLRC.
Soon thereafter, the CA promulgated its January 19, 2004
Decision in CA-G.R. SP No. 76568 which dismissed the Un-
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608
-A-
WHETHER OR NOT THE UNION, THE 29 UNION OFFICERS AND 61
MEMBERS MAY BE ADJUDGED GUILTY OF STAGING AN ILLEGAL
STRIKE ON JANUARY 18, 2002 DESPITE RESPONDENTS
ADMISSION THAT THEY PREVENTED SAID OFFICERS AND
MEMBERS FROM REPORTING FOR WORK FOR ALLEGED
VIOLATION OF THE HOTELS GROOMING STANDARDS
-B-
WHETHER OR NOT THE 29 UNION OFFICERS AND 61 MEMBERS
MAY VALIDLY BE DISMISSED AND MORE THAN 200 MEMBERS
BE VALIDLY SUSPENDED ON THE BASIS OF FOUR (4) SELF-
SERVING AFFIDAVITS OF RESPONDENTS
609
-C-
WHETHER OR NOT RESPONDENTS IN PREVENTING UNION
OFFICERS AND MEMBERS FROM REPORTING FOR WORK
COMMITTED AN ILLEGAL LOCK-OUT12
In G.R. No. 166295, the Union solicits a riposte from this Court
on whether the Secretary has discretion to impose payroll
reinstatement when he assumes jurisdiction over labor disputes.
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610
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13G.R. No. 151379, January 14, 2005, 448 SCRA 190, 201.
14G.R. No. 140518, December 16, 2004, 447 SCRA 97, 106.
15University of Immaculate Concepcion, Inc., supra at p. 202.
16University of Santo Tomas v. National Labor Relations Commission, G.R. No.
89920, October 18, 1990, 190 SCRA 758.
611
The Union maintains that the mass picket conducted by its ofcers
and members did not constitute a strike and was merely an
expression of their grievance resulting from the lockout effected by
the Hotel management. On the other hand, the Hotel argues that the
Unions deliberate deance of
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17Id., at p. 769.
612
Noted authority on labor law, Ludwig Teller, lists six (6) categories of
an illegal strike, viz.:
(1)[when it] is contrary to a specic prohibition of law, such as
strike by employees performing governmental functions; or
(2)[when it] violates a specic requirement of law[, such as
Article 263 of the Labor Code on the requisites of a valid strike]; or
(3)[when it] is declared for an unlawful purpose, such as
inducing the employer to commit an unfair labor practice against
non-union employees; or
(4)[when it] employs unlawful means in the pursuit of its
objective, such as a widespread terrorism of non-strikers [for
example, prohibited acts under Art. 264(e) of the Labor Code]; or
(5)[when it] is declared in violation of an existing injunction[,
such as injunction, prohibition, or order issued by the DOLE
Secretary and the NLRC under Art. 263 of the Labor Code]; or
613
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VOL. 570, NOVEMBER 11, 2008 613
National Union of Workers in the Hotel Restaurant and Allied Industries
(NUWHRAIN-APL-IUF) Dusit Hotel Nikko Chapter vs. Court of Appeals
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18G.R. Nos. 158786 & 158789 & 158798-99, October 19, 2007, 537 SCRA 171,
199-200; citing II Azucena, Jr., The Labor Code 528 (6th ed., 2007).
614
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The facts are clear that the strike arose out of a bargaining
deadlock in the CBA negotiations with the Hotel. The concerted
action is an economic strike upon which the afore-quoted no
strike/work stoppage and lockout prohibition is squarely applicable
and legally binding.19
Third, the Union ofcers and members concerted action to shave
their heads and crop their hair not only violated the
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19 Philippine Metal Foundaries, Inc. v. CIR, Nos. L-34948-49, May 15, 1979, 90
SCRA 135, 141.
615
Hotels Grooming Standards but also violated the Unions duty and
responsibility to bargain in good faith. By shaving their heads and
cropping their hair, the Union ofcers and members violated then
Section 6, Rule XIII of the Implementing Rules of Book V of the
Labor Code.20 This rule prohibits the commission of any act which
will disrupt or impede the early settlement of the labor disputes that
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20Now Rule XXII, Sec. 9, par. 2 of the Rules Implementing Book V of the Labor
Code.
21Rollo (G.R. No. 163942), pp. 1442-1443.
616
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617
With respect to backwages, the principle of a fair days wage for a fair
days labor remains as the basic factor in determining the
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25Id., at p. 209.
26Id., at p. 212.
27Philippine Diamond Hotel and Resort, Inc. (Manila Diamond Hotel) v. Manila Diamond
Hotel Employees Union, G.R. No. 158075, June 30, 2006, 494 SCRA 195, 212 & 217.
618
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28G.R. No. 160303, September 13, 2007, 533 SCRA 288, 301.
619
13.MILAGROS LOPEZ
14.JOSE MUZONES
15.RAY NERVA
16.JESUS NONAN
17.MARLYN OLLERO
18.CATHY ORDUNA
19. REYNALDO RASING
20.JUSTO TABUNDA
21.BARTOLOME TALISAYON
22.JUN TESORO
23.LYNDON TESORO
24.SALVADOR TIPONES
25.SONNY UY
26.WILFREDO VALLES, JR.
27.MEL VILLAHUCO
28.EMMA Q. DANAO
29. JORDAN ALEJANDRO
1.DANILO AGUINALDO
2.CLARO ABRANTE
3.FELIX ARRIESGADO
4.DAN BAUTISTA
5.MA. THERESA BONIFACIO
6.JUAN BUSCANO
7.ELY CHUA
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8.ALLAN DELAGON
9.FRUMENCIO DE LEON
10. ELLIE DEL MUNDO
11.EDWIN DELOS CIENTOS
12.SOLOMON DIZON
13.YLOTSKI DRAPER
14.ERLAND COLLANTES
15. JONAS COMPENIDO
16.RODELIO ESPINUEVA
620
17.ARMANDO ESTACIO
18.SHERWIN FALCES
19.JELA FRANZUELA
20.REY GEALOGO
21.ALONA GERNOMINO
22.VINCENT HEMBRADOR
23.ROSLYN IBARBIA
24.JAIME IDIOMA, JR.
25. OFELIA LLABAN
26.RENATON LUZONG
27.TEODULO MACALINO
28.JAKE MACASAET
29.HERNANIE PABILONIA
30. HONORIO PACIONE
31.ANDREA VILLAFUERTE
32.MARIO PACULAN
33.JULIO PAJINAG
34.JOSELITO PASION
35. VICENTE PASIOLAN
36.HAZEL PENA
37.PEDRO POLLANTE
38.EDUARDO RAMOS
39.IMELDA RASIN
40.DELFIN RAZALAN
41.EVANGELINE REYES
42.RODOLFO REYES
43.BRIGILDO RUBIO
44.RIO SALCEDO
45.JUANITO SANCHEZ
46.MA. THERESA SANCHEZ
47.DONATO SAN AGUSTIN
48.RICARDO SOCORRO
49.VALERIO SOLIS
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50.DOMINADOR SUAREZ
51. ORLANDO TABUGOCA
52.HELEN TALEON
53.ROBERT TANEGRA
621
54.LOURDES TAYAG
55.ROLANDO TOLENTINO
56. REYNALDO TRESNADO
57.RICHARD SABLADA
58.MAE YAP-DIANGCO
59.GILBERTO VEDASTO
60.DOMINGO VIDAROZAGA
61.DAN VILLANUEVA
In view of the possibility that the Hotel might have already hired
regular replacements for the afore-listed 61 employees, the Hotel
may opt to pay SEPARATION PAY computed at one (1) months
pay for every year of service in lieu of REINSTATEMENT, a
fraction of six (6) months being considered one year of service.
SO ORDERED.
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** Additional members as per April 23, 2008 rafe. Justices Dante O. Tinga and
Arturo D. Brion inhibited.
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