PILIPINO TELEPHONE CORPORATION vs.

PILIPINO TELEPHONE EMPLOYEES ASSOCIATION (PIL TEA) FACTS: The Collective Bargaining Agreement (CBA) between the Union and Pilipino Telepho ne Corporation (the Company) was due to expire on December 31, 1997. On October 30, 1997, the Union submitted to the Company its proposals for the renegotiation of the non-representation aspects of their CBA. As there was a standstill on se veral issues, the parties submitted their dispute to the National Conciliation a nd Mediation Board (NCMB) for preventive mediation.4 The conciliation proceeding s before the NCMB failed. On July 13, 1998, the Union filed a Notice of Strike5 with the NCMB for unfair labor practice due to the alleged acts of "restraint an d coercion of union members and interference with their right to self-organizati on" committed by the Company's Revenue Assurance Department (RAD) Manager Rosale s and its Call Center Department Manager, Manny Alegado. The Company filed a petition for Consolidated Assumption of Jurisdiction with th e Office of the Secretary of Labor and was granted. Furthermore, the parties are likewise directed to cease and desist from committing any or all acts that migh t exacerbate the situation. On September 4, 1998, the Union filed a second Notice of Strike8 with the NCMB o n the grounds of: a) union busting, for the alleged refusal of the Company to tu rn over union funds; and b) the mass promotion of union members during the CBA n egotiation, allegedly aimed at excluding them from the bargaining unit during th e CBA negotiation. On the same day, the Union went on strike. On September 9, 19 98, Secretary Of Labor directed the striking Union officers and members to retur n to work within twenty-four (24) hours from receipt of the Order and for the Co mpany to accept all strikers under the same terms and conditions of employment p rior to the strike. The Union and its members complied. On December 7, 1998, the Company filed with the NLRC a petition to declare the U nion's September 4, 1998 strike illegal. DECISIONS: LABOR ARBITER - The Labor Arbiter found the strike illegal for having been condu cted in defiance of Secretary Laguesma's August 14, 1998 assumption order and fo r non-compliance with the procedural requirements for the conduct of a strike un der the Labor Code and its implementing rules. The staging of the strike was li kewise found to suffer from fatal procedural defects, to wit: a) the notice of s trike was filed on the same day that the strike was conducted; b) the fifteen (1 5)-day cooling-off period was not observed; c) the Union failed to conduct a str ike vote within the time prescribed by law; and d) the result of the strike vote was not furnished to the NCMB at least seven (7) days prior to the intended str ike. On appeal, the NLRC affirmed the decision of the Labor Arbiter in toto. In Petition for Certiorari under Rule 65 of the Rules of Court with the CA, modi fied the decision of NLRC as to the penalties and ordered suspension of union of ficer instead of dismissal and if dismissed to reinstate the said employees. Both parties filed their respective partial motions for reconsideration - the co mpany assailed the CA decision decreasing the penalty of the union officers whil e the Union and its dismissed officers assailed the decision declaring the strik e illegal. Both motions were denied. ISSUE: WON (1) the strike is illegal and (2) if the penalty imposed to the union office

r was proper. HELD: 1) YES, the strike is illegal. The union violated the mandatory requirements fo r legal strike under Art. 263 of the Labor Code. In the case at bar, the Union s taged the strike on the same day that it filed its second notice of strike. The Union violated the seven-day strike ban. This requirement should be observed to give the Department of Labor and Employment (DOLE) an opportunity to verify whet her the projected strike really carries the approval of the majority of the unio n members. The cooling-off period was also violated since there was no union bus ting which would warrant the non-observance. To constitute union busting under A rticle 263 of the Labor Code, there must be: 1) a dismissal from employment of u nion officers duly elected in accordance with the union constitution and by-laws ; and 2) the existence of the union must be threatened by such dismissal. In the case at bar, the second notice of strike filed by the Union merely assailed the "mass promotion" of its officers and members during the CBA negotiations. Surel y, promotion is different from dismissal. Finally the strike violated Article 264 LC that "NO strike or lockout shall be d eclared after assumption of jurisdiction by the President or the Secretary or af ter certification or submission of the dispute to compulsory or voluntary arbitr ation or during the pendency of cases involving the same grounds for the strike or lockout." The subject strike defied the assumption order of the Secretary of Labor. The NLRC correctly affirmed the Labor Arbiter that the second notice of s trike was based on substantially the same grounds as the first notice of strike. 2) NO, the CA committed a reversible error in modifying the rulings of the Labor Arbiter and the NLRC. Under Art. 264. Prohibited activities. x x x Any workers who se employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full back wages. Any union officer who knowing ly participates in illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared t o have lost his employment status: Provided, that mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of hi s employment, even if a replacement had been hired by the employer during such l awful strike. x x x The effects of illegal strikes, as outlined in Article 264 of the Labor Code, ma ke a distinction between ordinary workers and union officers who participate the rein. Under established jurisprudence, a union officer may be terminated from em ployment for knowingly participating in an illegal strike. The fate of union mem bers is different. Mere participation in an illegal strike is not a sufficient g round for termination of the services of the union members. The Labor Code prote cts ordinary, rank-and-file union members who participated in such a strike from losing their jobs provided that they did not commit illegal acts during the str ike. The law, in using the word "may", grants the employer the option of declari ng a union officer who participated in an illegal strike as having lost his empl oyment. Thus, in a number of cases, proof that an employee who knowingly partici pated in an illegal strike is a union officer was enough to warrant his dismissa l from employment.