Republic of the Philippines

Court of Appeals
M a n i l a

ALECO Employees
Organization (ALEO)
represented by its President
Dexter Brutas, CA G.R. NO._____________
Petitioners, (Certiorari under Rule 65 of the
Rules of Court)
-versus-

Albay Electric Cooperative

(ALECO for brevity) as the
principal employer; Albay
Power & Energy Corporation
(APEC for brevity) & San
Miguel Global Power
Holdings Corporation (SGPHC
for brevity) as the sole and
exclusive agent of ALECO
under a purported Concession
Agreement,
Private Respondents.

The Secretary of Labor &

Employment,
Public Respondent.
x---------------------x

PETITION
Petitioners, ALECO Employees Organization (ALEO for
brevity), by the undersigned counsel, most respectfully set forth:

1.0 NATURE OF THE ACTION, STATEMENT OF MATERIAL

DATES, JURISDICTIONAL FACTS, AND TIMELINESS OF THE
PETITION

1. This is a verified Petition by Certiorari under Rule 65 of the

1997 Rules on Civil Procedure, as amended, for grave abuse of
discretion of the Secretary of Labor and Employment (SOLE for
brevity) amounting to lack or excess of jurisdiction, and seeks
TO ANNUL AND SET ASIDE:

1|PETITION
 A. The Resolution1, dated 29 April 2016, of the Secretary of
Labor and Employment. The dispositive portion reads in
full:

“WHEREFORE, premises considered, this Office finds

the retrenchment of employees at ALECO VALID.

But by virtue of the Assumption of Jurisdiction Order

dated 10 January 2014, ALECO is ORDERED TO PAY
accrued backwages and other benefits reckoned from 10
January 2014, the date of the issuance of the Assumption
Order of the Secretary of Labor and Employment
directing the reinstatement of all ALEO members who
have not accepted separation benefits on 25 December
2013, until the finality of this Resolution. Moreover,
ALECO is ORDERED TO PAY separation benefits,
computed pursuant to the Collective Bargaining
Agreement (CBA), due them in view of the retrenchment.

The Motion to Cite ALECO Management in Indirect

Contempt is DENIED for lack of merit. The Motion to
Compel the ALECO Management to comply with the
executory Order dated 10 January 2014 with Return-to-
Work Order is GRANTED.

The Omnibus Motion to Promptly Resolve the Previous

Motions to Cite ALECO Management in Indirect
Contempt & to Compel the ALECO Management to
Comply with the Executory Order dated 10 January
2014 with Return-to-Work Order is hereby NOTED.

Finally, the Omnibus Motion to Issue Garnishment

Order to garnish (a) the Concession Fee of APEC to
ALECO & (b) the electricity bill payments from member-
consumers to pay the salaries of the ALEO employees
since issuance of the Assumption of Jurisdiction Order
on 10 January 2014 is DENIED for lack of merit.

t d The Manifestation Re: Updated Computation of

Backwages is no e .

Let a Writ of Execution be IMMEDIATELY ISSUED

and PREEXECUTION CONFERENCE be held on the

1 Annex- “A” (Certified True Copy)

2|PETITION
 following: (1) computation of the backwages of workers
covered by the 10 January 2014 Return-to-Work Order
up to the issuance of this Resolution; and (2)
determination of the total number of workers who have
not received their separation pay and benefits pursuant
to the Collective Bargaining Agreement and its
computation to implement this Resolution.

SO RESOLVED.”
[Emphasis, supplied]

B. The Resolution2, dated 2 December 2016 and received by the

Petitioner on 8 January 2016, of the Secretary of Labor and
Employment, which denied herein petitioners’ Partial
Motion for Reconsideration3. The dispositive portion reads
in full:

“WHEREFORE, the separate Motions for Partial

Reconsideration dated 13 May 2016 and 15 May 2016,
respectively filed by Albay Electric Cooperative. Inc. and
Albay Electric Cooperative, Inc. Employees Organization
are hereby DENIED for lack of merit. The validity of the
retrenchment

implemented by Albay Electric Cooperative, Inc. is

hereby AFFIRMED. Hence, the claim for reinstatement
is hereby DENIED.

The liability of Albay Electric Cooperative, Inc. TO PAY

accrued backwages and other benefits reckoned from 10
January 2014 until the frnality

of this Resolution, and separation benefits computed

pursuant to the CBA in view of retrenchment is likewise
AFFIRMED.

Let a Writ of Execution be IMMEDIATELY ISSUED

and PREEXECUTION CONFERENCE be held on the
following: (1) computation of

backwages of workers covered by the 10 January 2014

Return-to-Work Order; and (2) determination of the
amount of separation pay and total number of workers

2 Annex- “A” (Certified True Copy)

3 Annex- “C” (Certified True Copy)
3|PETITION
 who have not received their separation benefits pursuant
to the CBA.

No further motions of the same nature shall hereinafter

be entertained.

SO RESOLVED..”

2. This Petition is being filed within the 60-day period after

the Petitioner received the Resolution denying its Motion for
Reconsideration.

PARTIES

Petitioner ALECO Employees Organization (ALEO) is the duly

registered labor union of the rank and file employees of Albay
Electric Cooperative (ALECO for brevity). The union has 370
registered members and its principal office is also located at W.
Vinzons St., Old Albay, Legazpi City inside petitioner’s compound.

Respondent Albay Electric Cooperative (ALECO) is an electric

cooperative constituted under the EPIRA Law and holds an exclusive
franchise for distribution of electricity within the province of Albay.
Its principal office is located at W. Vinzons St., Old Albay, Legazpi
City.

Respondent San Miguel Global Power Holdings Corporation

(SGPHC) through its subsidiary Albay Power & Energy Corporation
(APEC for brevity), holding office at W. Vinzons St., Old Albay,
Legazpi City is the sole and exclusive agents of ALECO on any
dispute commenced prior to the Concession Period.

PRELIMINARY STATEMENTS

. The criminal charge was for Malversation, Violation of Section

3(a) and (e) of RA No.3019 docketed as OMB-L-C-14-0133. While the
administrative charge was for conduct prejudicial to the best interest
of the service, dishonesty, and Grave Misconduct was docketed as
OMB-L-A-14-0533.

Petitioners have cried foul from the imposition by the

Ombudsman of the penalty for grave misconduct in OMB-L-A-14-
0533. The same is unwarranted and unjustified in view of the
pronouncement of the Ombudsman in Resolution dated October 7,
4|PETITION
2014 that “there was no showing that public funds went to the pocket
of respondents”4 and there is lack of substantial evidence that
respondents’ actions were attended by corruption and clear intent to
violate the law or a flagrant disregard of established rules. A copy of
said Resolution is hereto attached as Annex “D”.

The penalty of Dismissal from Service with the accessory

penalties of Cancellation of Eligibility, “Forfeiture of Retirement Benefits
and Perpetual Disqualification for Re-employment in the Government
Service” imposed by the Ombudsman is too severe and not
commensurate to the acts committed.

STATEMENT OF THE FACTS

Petitioner originally filed labor disputes docketed as OS-VA-

2014-01 INC., NCMB-RBV-NS-04-001-13, NCMB-RBV-PM-04-002-13,
NLRC RAB V Case No. 10-00186-13, NLRC RAB V Case No. 12-
00233-13 before the National Conciliation Board (NCMB) and the
National Relations Commission (NCMB);

On April 4, 2013, the Interim Board of ALECO released an

Official Declaration5 signed by its Interim Board of Director
President Bishop Joel Z. Baylon in public concerning the
rehabilitation of the cooperative under a concession agreement with a
private entity. Among the terms of the concession was the forced
resignation from employment of all employees of ALECO.

Sensing that the private concession measure is threatening the

existence of the union and the entire provision of the existing CBA,6
ALEO immediately submitted a Letter to Expedite Grievance7 on
April 8, 2013, to NEA PS Veronica Briones and Interim Board
Chairman Joel Z. Baylon raising the issues concerning the effect of
the impending rehabilitation measure to the employees of ALECO.
However, ALECO management failed and refused to act on the
grievance of the ALEO as provided under the mandatory grievance
procedure under the CBA.

4 Annex-“D” (1st par., page 10)

5
Annex “3”
6
Please see Annex “A” of ALECO’s Position Paper for the copy of the CBA.
7
Annex “1”
5|PETITION
 On April 15, 2013, ALEO filed Preventive Mediation Case No.
NCMB RBV-PM-04-02-20138.On April 25, 2013, a conference was
held at the NCMB-DOLE but no terms were agreed upon because the
emissaries from ALECO - Reynaldo Reverente and Atty. Busalla,
were not authorized to enter into stipulation to bind ALECO. A
conference was re-scheduled by the hearing officer on May 3,
2013.However, because of the lack of sincerity of the ALECO
management to negotiate, ALEO decided to drop the preventive
mediation case and filed a Notice of Strike9on the same day, which
was docketed as NCMB RBV-NS-04-01-2013. The filing of the Notice
of Strike (NOS) was annotated on the upper right hand portion of the
Minutes of Conference on April 25, 2013 (Annex “F” of Complainant’s
Position Paper in NLRC Case No. 10-00186-13). The dropping of the
Preventive Mediation case before the filing of the Notice of Strike is
officially attested by the Certification10 issued by the NCMB-DOLE
Regional Office V.

ALEO submitted a Letter11,dated May 7, 2013 to NCMB

Regional Office V requesting for a representative to facilitate the
conduct of the Strike Vote on May 10, 2013.

On May 10, 2013, ALEO conducted the strike vote balloting

with the assistance of NCMB-DOLE Regional Office V. The proposed
Strike was approved by 183 “YES” votes and opposed by only 13
“NO” votes. The 183 approving votes already complied with the
required majority out of the 350 number of members indicated in the
Notice of Strike. However, the conduct of the strike vote, other
employees who were not yet members of ALEO applied for
membership so that their voice on the rehabilitation of ALECO could
also be heard. The additional new members raised the number of
ALEO members from 350 to 370. Because of the additional members
and the fact that other members were not able to leave their work to
cast their vote and their distance from the polling place, ALEO
submitted a request Letter12,dated May 16, 2013, requesting the
NCMB-DOLE to facilitate the conduct of a Special Strike Vote for the
8
Annex “4”
9
Annex “2”
10
Please see Annex “II” of ALECO’s Position Paper.
11
Annex “5”
12
Annex “6”

6|PETITION
Tabaco Branch on May 17, 2013 and for Ligao Branch on May 20,
2013.

After the conduct of the Strike Voting on May 10, 17 and 20,
2013, the result was canvassed on May 21, 2013 and recorded on the
Consolidated Minutes of the Strike Vote13, witnessed by NCMB-
DOLE representative Josephine Amaranto, where out of the 370
current members of ALECO, 217 approved the conduct of the Strike
while only 17 voted to oppose it.

On September 23, 2013, ALEO staged their labor strike on the

opposite side of the street in front of the ALECO compound at Old
Albay, Legazpi City and near the entrance of the road to the ALECO
Tabaco City Collection Office. The strike was peacefully conducted
without obstructing the egress and ingress to the ALECO premises.
The Pictures of the Strike in Legazpi City14 show the open gate of
ALECO without any obstruction by the Strikers. Also, the Pictures of
the Strike at the Tabaco City Collection Office15 show that the Strike
does not in any way obstruct the egress and ingress to the ALECO
Collection Office of that place.

On September 26, 2013, employees from Ligao City Collection

Office went to the Tabaco City Collection Office upon the order of the
ALECO management. Upon arrival at the Strike area, the officers of
ALEO explained to the ALECO employees from Ligao City about the
significance of the strike to the welfare of the ALECO employees
including those at the Ligao City Collection Office. These same
employees from Ligao City proceeded to Legazpi City where, again,
the ALEO officers and striking members explained to them the
significance of the strike. However, upon the instigation of the
ALECO management who exercise authority over the employees
from Ligao City, these employees were made to sign an affidavit that
they were threatened by “the group of Mr.Cantal” and prevented to
enter the ALECO premises by the group headed by Christopher
Moron. However, the cordial conversation on the pictures speaks a
thousand words belying this allegation. There is no evidence of
obstruction against any employee from entering the premises of

13
Annexes “7”, “7-a”, “7-b”, “7-c”
14
Annexes “8”, “8-a”, “8-b”
15
Annexes “9”, “9-a”, “9-b”
7|PETITION
ALECO. The pictures of the strike clearly show that the gate is open
and the Strike is on the opposite side of the street. No allegation can
disprove the facts established by the pictures of the place and the
incident witnessed by the public who pass in front of ALECO
everyday witnessing the unimpeded entrance to the ALECO
premises.

The ALECO management also concocted evidence instigating

certain employees to report to the police blotter that they were
stopped from conducting meter-reading activity by certain persons.
However, there is nothing on the contents of the blotter that indicates
that those incidents are connected with the strike being conducted by
ALECO. The truth of the allegations is also questionable since not a
single complaint was filed concerning the reported incidents. The
police blotter certification only shows that a report was made to the
police.

On October 23, 2013, the dreaded separation became a reality.

ALECO management issued a Notice of Retrenchment16 even before
the installation of any labor-saving device or other measures before
resorting to retrenchment as a last resort.

On January 10, 2014, after the Secretary of Labor and

Employment (SOLE for brevity) assumed jurisdiction over the
brewing labor dispute between ALECO and ALEO, SOLE issued a
Return-to-Work Order.17

Despite said order, however, ALECO, now being managed by

APEC, refused to effect actual reinstatement of the striking
employees. Thus, while the striking employees returned to work and
reported, what ALECO/APEC did was to merely confine them in
one room for a little over three weeks. After a month of reporting and
being merely confined in one room, they realized that ALECO/APEC
had no intention of complying with the order of actual reinstatement
as they were deprived of their salaries/wages.

After more than 2 years, respondent Secretary of Labor and

Employment resolved the labor dispute through its Resolution dated
April 29, 2016. The both parties filed partial Motions for

16
Annex “10”

17
Annex “11”

8|PETITION
Reconsiderations but both motions were denied and the previous
resolution was affirmed.

Hence, this petition for review.

GROUNDS OF THE PETITION

I. THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT SUMMARILY IGNORED
SECTION 3 OF P.D. NO 823 WHICH A VALID AND
EXISTING LAW DEFINING MASS RETRENCHMENT AS A
FORM OF LOCKOUT.

II. THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT OVERLOOKED THE FACT
THAT THE RETRENCHMENT IMPLEMENTED BY ALECO
IS ILLEGAL BECAUSE IT AMOUNTS TO BUT DOES NOT
COMPLY WITH THE PROCEDURAL REQUIREMENTS OF
A LOCKOUT.

III. THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT OVERLOOKED THE FACT
THAT THE RETRENCHMENT IMPLEMENTED BY ALECO
IS ILLEGAL BECAUSE IT DOES NOT COMPLY WITH THE
REQUIREMENTS OF A VALID RETRENCHMENT.

IV. THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT FAILED TO HOLD ALECO
LIABLE FOR PAYMENT OF NOMINAL DAMAGES FOR
FAILING TO COMPLY WITH THE REQUISITE
PROCEDURAL DUE PROCESS IN RETRENCHMENT
CASES.

V. THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT FAILED TO FAILED TO
AWARD MORAL DAMAGES, EXEMPLARY DAMAGES
AND ATTORNEY FEES TO THE ALEO MEMBERS.
9|PETITION
 DISCUSSION and ARGUMENTS

I. The Public Respondent summarily

ignored a valid and existing
applicable provision of law

Presidential Decree No. 823, which took effect on November

03, 1975, is a valid and existing law which has not been repealed by
any subsequent law. Under Section 3 this law, mass retrenchment
implemented without any clearance from the Secretary of Labor
constitute sa Lockout:

“Section 3. The term "lockout" shall comprise

shutdowns, mass retrenchment and dismissals without
previous written clearance from the Secretary of Labor or
his duly authorized representative.”

The Retrenchment implemented by ALECO is a mass

retrenchment because it covers all employees as stated on the Notice
of Retrenchment which is not disputed by respondent ALECO.

Since the Retrenchment implemented by ALECO is also a

Lockout as defined by law, such measure must satisfy all the legal
requirements not only for retrenchment but also for lockouts.

The public respondent summarily ignored the above provision

of law and confined its consideration of the definition of Lockout on
the provision of the Labor Code which was enacted prior to P.D. No. 823.
IT REFUSED, BOTH IN THE ORIGINAL RESOLUTION AND THE
RESOLUTION DENYING THE PARTIAL MOTION FOR
RECONSIDERATION, TO CITE ANY REASON ALL WHY A
SUBSEQUENT LAW IS INAPPLICABLE TO THE PRESENT CASE. It
simply issued the assailed resolutions as if this law does not exist.

The act of public respondent in summarily ignoring the

provision of Presidential Decree No. 823 to the issue of lockout and
retrenchment amounts to grave abuse amounting to lack or excess of
jurisdiction.

10 | P E T I T I O N
 II. The Public Respondent summarily
ignored the fact that respondent
ALECO failed to comply with the
requirements of a valid lockout.

Since public respondent refused to apply the provision of

Presidential Decree No. 823 with no apparent reason, it also failed to
considered that the mass retrenchment implemented by ALECO
which amounts to a lockout failed to comply with the requirements
of a valid lockout.

Under the Labor Code18 and its Omnibus Implementing

Rules19, the only valid grounds for implementing a Lockout are
bargaining deadlocks AND unfair labor practice:

Sec. 1. Grounds for strike and lockout — A strike or lockout

may be declared in cases of bargaining deadlocks and unfair
labor practice. Violations of collective bargaining agreements,
except flagrant and/or malicious refusal to comply with its
economic provisions, shall not be considered unfair labor
practice and shall not be strikeable. No strike or lockout may be
declared on grounds involving inter-union and intra-union
disputes or on issues brought to voluntary or compulsory
arbitration.

Although not substantiated by evidence, ALECO claims that it

implemented the mass retrenchment because of financial losses.
However, since financial loss is totally different from a bargaining
deadlock or an unfair labor practice, there is no way that it could be a
valid ground for a Lockout.

Public respondents refusal recognize the obvious fact that

ALECO failed to comply with the requirements of a lockout amounts
to grave abuse of discretion amounting to lack or excess of
jurisdiction.

III. The Public Respondent summarily

ignored the fact that respondent
ALECO failed to comply with the

18 Article 263(c), Labor Code

19 Book V, Rule XXII,Omnibus Rules Implementing the Labor Code,

11 | P E T I T I O N
 requirements of a valid
retrenchment.

In both assailed resolutions, public respondent ignored the

cited jurisprudence in the evaluation of the factual basis for the
requirements of a valid retrenchment. It simply declared that the
retrenchment was valid because the company was under serious
financial reverses. It simply brushed aside and failed to discussed
why the following decisions of the Supreme Court were not applied
to the present dispute:

a. The Retrenchment implemented by ALECO is not necessary

to prevent losses

In FASAP vs. PAL20, the Supreme Court ruled:

“On the requirement that the prerogative to retrench must

be exercised in good faith, we have ruled that the hiring
of new employees and subsequent rehiring of
"retrenched" employees constitute bad faith;[87] that
the failure of the employer to resort to other less drastic
measures than retrenchment seriously belies its claim that
retrenchment was done in good faith to avoid losses;[88] and
that the demonstrated arbitrariness in the selection of which
of its employees to retrench is further proof of the illegality
of the employer's retrenchment program, not to mention its
bad faith.[89]”

After the implementation of mass retrenchment, ALECO re-

hired some of the retrenched employees. The evident bad
faith of ALECO is worsened by the fact that, through its
Concessioner-Agent SMC Global Power Holdings
Corporation, it engaged the services of a sub-contractor
Utility Solutions Inc. (USI), to perform the functions of the
retrenched rank and file employees. This fact is admitted by
NGC and USI on their Answer with Counterclaim21 in the
case for violation of D.O. 18-A-001 docketed as RO500-
TSSD-1227-2013-D.O. 18-A-001 before DOLE Regional Office
No. V. In fact, the Pleading boldly incorporated the contents

20 G.R. No. 178083, July 23, 2008

21 Annex “28” of the Omnibus Position Paper
12 | P E T I T I O N
 of the Service Agreement between SMC Global Power
Holding and USI for the meter reading and other functions
in the operation of ALECO. These facts reek of bad faith and
malice attendant to the mass retrenchment that was
implemented by ALECO.

b. There is no evidence on record that ALECO actually served

written notices both to the ALEO members at least one
month prior to the intended date of retrenchment

The assailed Resolution concluded that notices of

retrenchment were presumed to have been served to all the
employees because of the fact that some employees actually
claimed their separation pays.

In Bughaw, Jr., vs. Treasure Island Industrial

Corporation22, the Supreme Court declared that “The burden
therefore is on respondent to present clear and unmistakable proof
that petitioner was duly served a copy of the notice of termination
but he refused receipt. Bare and vague allegations as to the manner
of service and the circumstances surrounding the same would not
suffice. A mere copy of the notice of termination allegedly sent by
respondent to petitioner, without proof of receipt, or in the very
least, actual service thereof upon petitioner, does not constitute
substantial evidence. It was unilaterally prepared by the petitioner
and, thus, evidently self-serving and insufficient to convince even
an unreasonable mind”.

The fact that other employees already claimed their

separation pays can only be taken as proof relative to those
specific employees but not to other employees who did not
receive any separation pay. The above-quoted ruling of the
Supreme Court requires clear and unmistakable proof.
There is no way that availment of separation pay by the
other employees can be considered as clear and
unmistakable proof that notice of retrenchment was served
upon each of the ALEO members. A mere presumption

22 G.R. No. 173151, March 28, 2008

13 | P E T I T I O N
 cannot be considered clear and unmistakable proof. There is
absolutely no legal precedent that notice to an employee can
be construed as notice to another employee. Just imagine if
an employee is to be dismissed or retrenched but notice will
be served to another employee and the employer will offer
that service as proof with respect to the employee who will
be dismissed or retrenched. This would directly violate an
employee’s right to procedural due process.

The records of the case is bereft of any documentary or physical

evidence that Notices of Retrenchment were actually served upon
and received by the ALEO members who are parties to this case.

IV. The Public Respondent summarily ignored the fact that

that ALECO is liable for payment of nominal damages
for failing to comply with the requisite procedural due
process in retrenchment cases

1. It is incontrovertible that there is no proof on the records of this

case that Notices of Retrenchment were actually served upon
the members of ALEO.

2. It is also incontrovertible no written clearance from the

Secretary of Labor was obtained before the mass lay-off or
retrenchment was implemented. This makes the mass lay-
off/retrenchment illegal for violation of Section 3 of P.D. No
823.

3. It is also uncontested that the retrenchment implemented was

not necessary to prevent losses because ALECO subsequently
rehired some retrenched employees and engaged service
contractor to perform the functions of the retrenched
employees.

4. Even if the validity of retrenchment is sustained, the ALEO

employees are still entitled to nominal damages of at least
P50,000.00 each because of ALECO’s failure to actually served
written notices to the ALEO members. In Jaka Food Processing

14 | P E T I T I O N
 Corp. vs. Pacot23, the Supreme Court set the precedent for this
kind of situation :

It is, therefore, established that there was ground for

respondents dismissal, i.e., retrenchment, which is one of the
authorized causes enumerated under Article 283 of the Labor
Code. Likewise, it is established that JAKA failed to comply
with the notice requirement under the same Article.
Considering the factual circumstances in the instant case and
the above ratiocination, we, therefore, deem it proper to fix the
indemnity at P50,000.00.

V. The Public Respondent summarily ignored the fact that

that ALECO is liable for moral damages, exemplary
damages and attorney fees to the ALEO members

5. The Supreme Court has always been consistent in its ruling

that:
“[t]he employee is entitled to moral damages when the
employer acted a) in bad faith or fraud; b) in a manner
oppressive to labor; or c) in a manner contrary to morals, good
customs, or public policy.”24

6. ALECO implemented a mass lay-off retrenchment during a

pendency of a valid strike. The adoption of this strategy is
clearly an abominable act that is oppressive to labor;

7. The mass lay-off retrenchment was implemented by ALECO in

direct violation of a provision of law – Section 3 of P.D. No 823.

8. The mass lay-off retrenchment implemented by ALECO was

not necessary to prevent losses. The adoption of this strategy is
clearly an abominable act that is speciously fraudulent,
oppressive to labor and contrary to morals, good customs, or
public policy.

9. ALECO flagrantly defied the Return-to-Work Order of the

Secretary of Labor for more than two long and agonizing years

23
G.R. NO. 151378, March 28, 2005
24
Montinola vs. PAL, G.R. No. 198656, September 8, 2014
15 | P E T I T I O N
 which subjected the ALEO members and their respective
families to abject poverty and psychological trauma.

The PRIMER ON STRIKE, PICKETING AND LOCKOUT of

the NCMB clearly provides:

33. WHAT ARE THE LEGAL CONSEQUENCES IN CASE OF

DEFIANCE OF THE RETURN-TO-WORK ORDER BY THE EMPLOYER AND
BY THE EMPLOYEES?

A. In case of non-compliance with the return-to-work order

in connection with the certification or assumption of jurisdiction by
the Secretary of Labor, the employees concerned may be subjected to
immediate disciplinary action, including dismissal or loss of
employment status or payment by the locking-out employer of
backwages, damages and other affirmative relief even criminal
prosecution against either or both of them.

The Secretary of Labor may cite the defiant party in contempt

pursuant to the power vested in him under the provisions of the Labor
Code.

The authority of the above Primer has been cited in numerous

cases decided by the Supreme Court (Capitol Medical Center, Inc. v.
NLRC, 496 Phil. 707, 717 (2005); Phimco Industries Inc. vs. PILA, et al.,
G.R. No. 170830, August 11, 2010; Sukhothai Cuisine & Restaurant [G.R.
No. 150437, July 17, 2006], etc.)

As cited above, the liability of the employer to pay backwages

to the employees attaches upon violation or non-compliance of the
return-to-work order in connection with the assumption of
jurisdiction. The liability of the employer arises regardless of whether
or not the principal issue of the labor dispute has already been
adjudicated, e.g. legality of the strike or termination. This must be so
otherwise the employer could simply disregard the Order and just
wait for the resolution of the principal dispute. A return-to-work
order in connection with the assumption of jurisdiction would have
no teeth of compulsion if non-compliance by the employer would

16 | P E T I T I O N
have no consequences. This would violate the immediately executory
nature of a return-to-work order of the DOLE Secretary.

As cited above, the employer could even be cited for contempt

and be criminally prosecuted for not complying with the return to
work order.

The Labor Code itself emphasizes the consequence of a

violation of such Orders of the DOLE Secretary:

For this purpose, the contending parties are strictly enjoined to

comply with such orders, prohibitions and/or injunctions as are issued
by the Secretary of Labor and Employment or the Commission, under
pain of immediate disciplinary action, including dismissal or loss of
employment status or payment by the locking-out employer of
backwages, DAMAGES and other affirmative relief, even criminal
prosecution against either or both of them.

Art. 263(g) Par. 2, Labor Code of the Philippines

Law and jurisprudence requires that in view of ALECO’s

defiance of the Return-to-Work Order, the ALEO members are
entitled to damages.

10. The above circumstances and acts of ALECO clearly entitle the
ALEO members to moral, exemplary damages and attorney’s
fees.

PRAYER

IN VIEW OF THE FOREGOING, the ALEO most fervently

prays that before this Honorable Court:

1. That the portion of the Resolutions of the public respondent,

dated April 29, 2016 and December 2, 2016, sustaining the
validity of the retrenchment be set aside for having been issued
with grave abuse of discretion amounting to lack or excess of
jurisdiction;

2. It is further prayed that:

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 a. ALECO, under any management, be ordered to reinstate the
ALEO members;

b. In addition to the award under the assailed resolutions,

Private respondent be directed to pay moral damages in the
mount of ONE HUNDRED THOUSAND PESOS
(Php100,000.00), exemplary damages in the amount of ONE
HUNDRED THOUSAND PESOS (Php100,000.00) and
Attorney’s Fees equivalent to 10% of the total award for each
striking employee included herein.

3. That, in the alternative, if the retrenchment will be sustained,

that ALEO members be awarded nominal damages of P50,000
each.

Other relief just and equitable under the premises are likewise
prayed for.

February 6, 2017 Legazpi City for Manila.

REGALA LLAGAS LELIS & ASSOC.

P E T I T I O N E R ’ S C O U N S E L
3nd Flr. Gimenez Bldg., Rizal St., Legazpi City
Phone: +63524804480; Cell: +639205354468 | rlla.firm@gmail.com

By

RITCHE R. REGALA
Roll No. 46552, 5/2/02; Lifetime IBP No. 02989, 5/2/02
PTR No. 1298605, 1/3/2017; MCLE Compliance No. V-0006157, Feb. 5, 2015

18 | P E T I T I O N
Republic of the Philippines )
City of Tabaco ) s.s.

VERIFICATION & CERTIFICATION AGAINST FORUM

SHOPPING

I, Dexter Brutas, of legal age, Filipino citizen, after having been

duly sworn in accordance with law, depose and state that:

1. That I am representative of the petitioners in the above

entitled case; And, in such capacity, I have caused this
Petition to be prepared;

2. We I read the Petition and the allegations therein are true

and correct of our personal knowledge or based on authentic
records; I certify that I have not commenced any action or
filed any claim involving the same issues before any other
court, tribunal or quasi-judicial agency;

3. To the best of my knowledge, there is no such pending

action or claim; If I should learn that a similar action or claim
has been filed or is pending, I shall report such fact within
five (5) days from the discovery to this Honorable Court.

IN WITNESS WHEREOF, I have signed this instrument on

February 6, 2017 at Legazpi City.

Dexter Brutas
Affiant

SUBSCRIBED AND SWORN TO before me on February 6, 2016

at Legazpi City, Philippines. The affiant personally appeared and
signed the foregoing instrument in my presence and has been
identified through competent evidence of identity.

WITNESS MY HAND AND SEAL

Doc No._____;
Page No.____;
Book No.____;
Series of 2017.

19 | P E T I T I O N
 AFFIDAVIT OF SERVICE

I, Conchita delos Santos, after being duly sworn to in

accordance with law, depose and state:

That on February 6, 2016, I caused the mailing of the pleading

hereunder described by registered mail with return card in
accordance with Section 13, Rule 13 of the Rules of Court:

Petition for the case entitled “ALEO vs. ALECO, et al.”

by depositing a copy in the post office in a sealed envelope, postage

prepaid, under Registered Letter/Parcel Nos. _____, _____, _____,
plainly addressed to:

ATTY. GLEN JAYMALIN ALBAY ELECTRIC COOPERATIVE, INC. / Members of

Counsel for ALECO the ALECO-iBOD
Divino Rostro, Tabaco City ALBAY POWER AND ENERGY CORPORATION
SAN MIGUEL GLOBAL POWER HOLDINGS CORP.
Vinzon St., Old Albay, Legazpi City

TO THE TRUTH OF THE FOREGOING, I have signed this

Affidavit this February 6, 2017 at Legazpi City, Philippines.

Conchita delos Santos

(Affiant)

SUBSCRIBED AND SWORN TO before me this February 6,

2017, in Legazpi City, Philippines The affiant personally appeared
and signed the foregoing instrument in my presence and is identified
by her SSS ID as competent evidence of identity.

WITNESS MY HAND AND SEAL.

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 EXPLANATION

The SERVICE of the foregoing PETITION was made through

registered mail because of distance and lack of personnel to
personally serve the same.

RITCHE R. REGALA

21 | P E T I T I O N