Petitioner: First Division

FIRST DIVISION
[G.R. No. 150437. July 17, 2006.]
SUKHOTHAI CUISINE and RESTAURANT, petitioner, vs. COURT

OF APPEALS, NATIONAL LABOR RELATIONS COMMISSION,
PHILIPPINE LABOR ALLIANCE COUNCIL (PLAC) Local 460
Sukhothai Restaurant Chapter, EMMANUEL CAYNO, ALEX
MARTINEZ, BILLY BACUS, HERMIE RAZ, JOSE LANORIAS,
LITO ARCE, LINO SALUBRE, CESAR SANGREO, ROLANDO
FABREGAS, JIMMY BALAN, JOVEN LUALHATI, ANTONIO
ENEBRAD, JOSE NEIL ARCILLA, REY ARSENAL, ROEL
ESANCHA, EDGAR EUGENIO, ALBERT AGBUYA, ROLANDO
PUGONG, ARNEL SALVADOR, RICKY DEL PRADO, CLAUDIO
PANALIGAN, BERNIE DEL MUNDO, JOHN BATHAN, ROBERTO
ECO, JOVEN TALIDONG, LENY LUCENTE, ANALIZA CABLAY,
RIGOBERTO TUBAON and MERLY NAZ,respondents.
DECISION
AUSTRIA-MARTINEZ, J : p
Before this Court is a petition for certiorari under Rule 45 questioning the
Decision 1 dated August 8, 2001 promulgated by the Court of Appeals (CA) in
CA-G.R. SP No. 63864 which affirmed in toto the Decision dated November 29,
2000 of the National Labor Relations Commission (NLRC); and the CA Resolution
2 dated October 18, 2001 which denied the petitioner's Motion for
Reconsideration.
This case originated from a complaint for illegal strike filed with the NLRC
by the petitioner 3 against private respondents due to an alleged "wildcat
strike" and other concerted action staged in the company premises on June 24,
25 and 26, 1999.
The undisputed facts are as follows:

Sometime in March 1998, the majority of the employees of the petitioner
organized themselves into a union which affiliated with the Philippine Labor
Alliance Council (PLAC), and was designated as PLAC Local 460 Sukhothai
Restaurant Chapter (Union). 4
On December 3, 1998, private respondent Union filed a Notice of Strike
with the National Conciliation and Mediation Board (NCMB) on the ground of
unfair labor practice, and particularly, acts of harassment, fault-finding, and
union busting through coercion and interference with union affairs. On
December 10, 1998, in a conciliation conference, the representatives of the
petitioner agreed and guaranteed that there will be no termination of the
services of private respondents during the pendency of the case, with the
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reservation of the management prerogative to issue memos to erring
employees for the infraction, or violation of company policies. On the following
day, or on December 11, 1998, a Strike Vote was conducted and supervised by
NCMB personnel, and the results of the vote were submitted to the NCMB on
December 21, 1998.
On January 21, 1999, the petitioner and the Union entered into a
Submission Agreement, thereby agreeing to submit the issue of unfair labor
practice — the subject matter of the foregoing Notice of Strike and the Strike
Vote — for voluntary arbitration with a view to prevent the strike.
On March 24, 1999, during the pendency of the voluntary arbitration

proceedings, the petitioner, through its president, Ernesto Garcia, dismissed
Eugene Lucente, a union member, due to an alleged petty quarrel with a co-
employee in February 1999. In view of this termination, private respondent
Union filed with the NLRC a complaint for illegal dismissal.
In the morning of June 24, 1999, private respondent Jose Lanorias, a union
member, was relieved from his post, and his employment as cook, terminated.
Subsequently, respondent Billy Bacus, the union vice-president, conferred with
Ernesto Garcia and protested Lanorias's dismissal. Shortly thereafter,
respondents staged a "wildcat strike."
On June 25, 1999, a Notice of Strike was re-filed by the private
respondents and the protest, according to the respondents, was converted into
a "sit-down strike." On the next day, or on June 26, 1999, the same was
transformed into an "actual strike."
On June 29, 1999, the petitioner filed a complaint for illegal strike with the
NLRC against private respondents, seeking to declare the strike illegal, and to
declare respondents, who participated in the commission of illegal acts, to have
lost their employment status. Having arrived at no amicable settlement, the
parties submitted their position papers, together with supporting documents,
affidavits of witnesses, and photographs, in compliance with the orders of the
Labor Arbiter. On October 12, 1999, the Labor Arbiter rendered a Decision the
dispositive portion of which reads:
WHEREFORE, premises considered, respondents are hereby
declared to have staged an illegal strike, and the employment of union
officers and all individual respondents are deemed validly terminated
in accordance with law. TADaCH
Finally, all individual respondents are hereby directed to

immediately remove their picket lines and all physical obstructions that
impede ingress and egress to petitioner's premises.
SO ORDERED. 5
The principal question before the Labor Arbiter was whether the private
respondents staged an illegal strike. Ruling in the affirmative, the Labor Arbiter
held that the Notice of Strike dated December 3, 1998 as well as the Strike
Vote of December 11, 1998 referred to a prior dispute submitted for voluntary
arbitration and, hence, they cannot apply to the strike staged about six months
later, which commenced on June 24, 1999 and ended on June 26, 1999; that,
for these reasons, the Union failed to comply with the mandatory requisites for
a lawful strike; that the issuance of memos by the petitioner to instill discipline
on erring employees is a lawful exercise of management prerogative and do
not amount to acts of unfair labor practice; that, instead of resorting to a strike,
private respondents should have availed of the proper legal remedies such as
the filing of complaints for illegal suspension or illegal dismissal with the NLRC;
that, the root causes of the controversy are the petition for certification election
and petition for cancellation of union registration which were then pending
before the Department of Labor as well as the issue on unfair labor practice
then pending before the voluntary arbitrator, and, hence, the parties should
have awaited the resolution of the cases in the proper fora; and that even if
private respondents complied with all the requisites of a valid strike, the strike
is still illegal due to the commission of prohibited acts, including the obstruction
of free ingress and egress of the premises, intimidation, and threat inflicted
upon non-striking employees.
Private respondents appealed to the NLRC which, on November 29, 2000,
promulgated its Decision the dispositive portion of which states:
WHEREFORE, the appeal is hereby granted. Accordingly, the
Decision dated October 12, 1999 in the above entitled case is hereby
vacated and set-aside. Consequently, the complaint of illegal strike is
hereby dismissed for lack of merit.
All striking workers are hereby ordered to return to work

immediately and Sukhothai Restaurant to accept them back to their
former or equivalent positions. If the same is no longer possible,
Sukhothai Restaurant is ordered to pay them separation pay
equivalent to one month salary for every year of service reckoned from
their initial date of employment up to the present.
SO ORDERED. 6
In overruling the Labor Arbiter, the NLRC held that the petitioner is guilty
of union busting; that the petitioner violated the Submission Agreement dated
December 10, 1998 in that no termination shall be effected during the
voluntary arbitration proceedings and, hence, the strike was justified; that the
Notice of Strike and Strike Vote dated December 3, 1998 and December 11,
1998, respectively, are applicable to the strike of June 24, 25, and 26, 1999
since the same issues of unfair labor practice were involved and that unfair
labor practices are continuing offenses; that even if the foregoing Notice of
Strike and Strike Vote were not applicable, the Union may take action
immediately since the petitioner is guilty of union busting; and that the re-filing
of a Notice of Strike on June 25, 1999 cured the defect of non-compliance with
the mandatory requirements.
After the NLRC denied the Motion for Reconsideration, the petitioner
appealed to the CA and raised the following issues:
I. WHETHER OR NOT THE STRIKE STAGED BY THE PRIVATE
RESPONDENTS IS LEGAL; and
II. WHETHER OR NOT THE PRIVATE RESPONDENTS WHO
PARTICIPATED IN THE STRIKE AND COMMITTED ILLEGAL ACTS
WERE PROPERLY AND VALIDLY DECLARED TO HAVE LOST THEIR
EMPLOYMENT STATUS. 7
As stated above, the CA denied the petition and affirmed the NLRC.
Petitioner is now before this Court, raising the following grounds:
I. THE COURT OF APPEALS GRAVELY ERRED AND DECIDED THE
ISSUES IN THE INSTANT CASE IN A MANNER CONTRARY TO
ESTABLISHED LAW AND JURISPRUDENCE BY RULING THAT THE
WILDCAT STRIKE OF JUNE 24, 1999 IS VALID AND LEGAL DESPITE
CLEAR AND INCONTROVERTIBLE EVIDENCE THAT:
A. PRIVATE RESPONDENTS FAILED TO COMPLY WITH THE
REQUISITES FOR A VALID STRIKE AS PRESCRIBED BY THE
PERTINENT PROVISIONS OF THE LABOR CODE;
B. THERE WERE NO STRIKEABLE ISSUES; AND

C. PRIVATE RESPONDENTS COMMITTED ILLEGAL AND
PROHIBITED ACTS DURING THE STRIKE.
II. THE COURT OF APPEALS GRAVELY ERRED BY FAILING TO
ADDRESS THE OTHER ISSUES RAISED BY THE PETITIONER IN ITS
PETITION FOR CERTIORARI WHICH FAILURE AMOUNTED TO A
DENIAL OF ITS RIGHT TO DUE PROCESS OF LAW. 8
The petition is meritorious.
The questions before this Court are whether the strike staged by the
private respondents is illegal; and whether private respondents are deemed to
have lost their employment status by participating in the commission of illegal
acts during the strike.
Respondents insist that the filing of the Notice of Strike on December 3,

1998, the Strike Vote of December 11, 1998, the submission of the results of
the vote to the NCMB on December 21, 1998, and their observation of the 15-
day cooling-off period in case of unfair labor practice as well as the seven-day
reporting period of the results of the strike vote, all satisfy the mandatory
requirements under Article 263 9 of the Labor Code and are applicable to the
June 1999 strike. In support of this theory, respondents invoke Article 263(f) in
that the decision to strike is valid for the duration of the dispute based on
substantially the same grounds considered when the strike vote was taken,
thus, there is no need to repeat the process. Furthermore, according to the
respondents, even assuming for the sake of argument that the Notice of Strike
and Strike Vote in December 1998 cannot be made to apply to the concerted
actions in June 1999, these requirements may nonetheless be dispensed with
since the petitioner is guilty of union busting and, hence, the Union can take
action immediately. DcAaSI

The undisputed fact, however, is that at the time the strike was staged in
June 1999, voluntary arbitration between the parties was ongoing by virtue of
the January 21, 1999 Submission Agreement. The issue to be resolved under
those proceedings pertained to the very same issues stated in the Notice of
Strike of December 3, 1998: the commission of unfair labor practices, such as
acts of harassment, fault-finding, and union busting through coercion and
interference with union affairs.
Article 264 of the Labor Code provides:

Art. 264. Prohibited activities. —
xxx xxx xxx
No strike or lockout shall be declared after assumption of
jurisdiction by the President or the Secretary or after certification or
submission of the dispute to compulsory or voluntary arbitration or
during the pendency of cases involving the same grounds for the strike
or lockout.
xxx xxx xxx (emphasis supplied)
This Court has held that strikes staged in violation of agreements

providing for arbitration are illegal, since these agreements must be strictly
adhered to and respected if their ends are to be achieved. 10 The rationale of
the prohibition under Article 264 is that once jurisdiction over the labor dispute
has been properly acquired by competent authority, that jurisdiction should not
be interfered with by the application of the coercive processes of a strike. 11
Indeed it is among the chief policies of the State to promote and emphasize the
primacy of free collective bargaining and negotiations, including voluntary
arbitration, mediation, and conciliation, as modes of settling labor, or industrial
disputes. 12 In Alliance of Government Workers v. Minister of Labor, 13 Chief
Justice Fernando declared that the principle behind labor unionism in private
industry is that industrial peace cannot be secured through compulsion by law.
Relations between private employers and their employees rest on an
essentially voluntary basis, subject to the minimum requirements of wage laws
and other labor and welfare legislation. 14
The alleged dismissals of Lucente and respondent Lanorias, both union

members, which allegedly triggered the wildcat strike, are not sufficient
grounds to justify the radical recourse on the part of the private respondents.
The questions that surround their dismissal, as private respondents so affirm,
are connected to the alleged breach of the "guarantee" by the petitioner not to
dismiss its employees during the pendency of the arbitration case, the very
questions which they also link to the other incidents of unfair labor practices
allegedly committed by the petitioner — these matters should have been raised
and resolved in the voluntary arbitration proceedings that were commenced
precisely to address them. On the other hand, if private respondents believed
that the disciplinary measures had nothing to do with the issues under
arbitration, then they should have availed of the appropriate remedies under
the Labor Code, such as the institution of cases of illegal dismissal 15 or, by
agreement of the parties, the submission of the cases to the grievance
machinery of the CBA, if one is available, so that they may be subjected to
separate voluntary arbitration proceedings, 16 or simply seek to terminate the
pending voluntary arbitration case and complete the mandatory procedure for a
lawful strike. Private respondents should have availed themselves of any of
these alternative remedies instead of resorting to a drastic and unlawful
measure, specifically, the holding a wildcat strike. 17 And because of the fact
that the Union was fully aware that the arbitration proceedings were pending,
good faith cannot be invoked as a defense. 18
For failing to exhaust all steps in the arbitration proceedings by virtue of

the Submission Agreement, in view of the proscription under Article 264 of the
Labor Code, and the prevailing state policy as well as its underlying rationale,
this Court declares that the strike staged by the private respondents is illegal.
19
With respect to respondents' averment that assuming arguendo that the

Notice of Strike and Strike Vote in December 1998 cannot be made to apply to
the strike in June 1999, the requirements for a valid strike may nonetheless be
dispensed with in case of union busting, 20 the Court finds it unnecessary to
discuss the question at length, especially in view of the foregoing declaration
that the strike is illegal, as well as the considerations of established doctrine:
the language of the law leaves no room for doubt that the cooling-off period
and the seven-day strike ban after the strike-vote report were intended to be
mandatory, 21 and in case of union busting where the existence of the union is
threatened, it is only the 15-day cooling-off period that may be dispensed with.
Article 263(f) in part states: "In every case, the union or the employer
shall furnish the Department the results of the voting at least seven days before
the intended strike or lockout, subject to the cooling-off period herein
provided." This provision should be read with Section 3, Rule XXII, Book V of the
Rules Implementing the Labor Code, then applicable at the time of the dispute,
the relevant provisions of which state: 3upjur06
However, in case of unfair labor practice involving the dismissal

from employment of any union officer duly elected in accordance with
the union constitution and by-laws which may constitute union-busting
where the existence of the union is threatened, the fifteen-day cooling-
off period shall not apply and the union may take action immediately
after the strike vote is conducted and the results thereof submitted to
the appropriate regional branch of the Board. (emphasis supplied)
The NCMB Primer on Strike, Picketing, and Lockout (January 31, 1992)
provide the same wording. The foregoing provision of the implementing rules
should also be compared to the provisions of the Labor Code under Article
263(c):
(c) . . . However, in case of dismissal from employment of
union officers duly elected in accordance with the union constitution
and by-laws, which may constitute union busting where the existence
of the union is threatened, the 15-day cooling-off period shall not apply
and the union may take action immediately.

The implementing rules clarify Article 263(c) in that the union may strike
"immediately" provided that the strike vote is conducted, the results thereof
submitted "in every case" at least seven days before the intended strike or
lockout. In sum, in case of alleged union busting, the three remaining
requirements — notice, strike vote, and seven-day report period — cannot be
dispensed with. 22
What is more, the strike had been attended by the widespread

commission of prohibited acts. Well-settled is the rule that even if the strike
were to be declared valid because its objective or purpose is lawful, the strike
may still be declared invalid where the means employed are illegal. 23 Among
such limits are the prohibited activities under Article 264 of the Labor Code,
particularly paragraph (e), which states that no person engaged in picketing
shall:
a) commit any act of violence, coercion, or intimidation or
b) obstruct the free ingress to or egress from the employer's
premises for lawful purposes, or
c) obstruct public thoroughfares.
The following acts have been held to be prohibited activities: where the
strikers shouted slanderous and scurrilous words against the owners of the
vessels; 24 where the strikers used unnecessary and obscene language 25 or
epithets to prevent other laborers to go to work, 26 and circulated libelous
statements against the employer which show actual malice; 27 where the
protestors used abusive and threatening language towards the patrons of a
place of business or against co-employees, going beyond the mere attempt to
persuade customers to withdraw their patronage; 28 where the strikers formed
a human cordon and blocked all the ways and approaches to the launches and
vessels of the vicinity of the workplace 29 and perpetrated acts of violence and
coercion to prevent work from being performed; 30 and where the strikers
shook their fists and threatened non-striking employees with bodily harm if they
persisted to proceed to the workplace. 31 Permissible activities of the picketing
workers do not include obstruction of access of customers. 32
The evidence in the record clearly and extensively shows that the
individual respondents engaged in illegal acts during the strike, such as the
intimidation and harassment of a considerable number of customers to turn
them away and discourage them from patronizing the business of the
petitioner; 33 waving their arms and shouting at the passersby, "Huwag kayong
pumasok sa Sukhothai! " 34 and "Nilagyan na namin ng lason ang pagkain
d'yan! " 35 as well as numerous other statements made to discredit the
reputation of the establishment; 36 preventing the entry of customers; 37 angry
and unruly behavior calculated to cause commotion 38 which affected
neighboring establishments within the mall; 39 openly cursing and shouting at
the president in front of customers 40 and using loud and abusive language,
such as "Putang ina niyong lahat!", toward the rest of the management 41 as
well as their co-workers who refused to go on strike; 42 physically preventing
non-strikers from entering the premises, 43 as well as deliberately blocking their
movements inside the restaurant, 44 at times by sharply bumping into them 45
or through indecent physical contact; 46 openly threatening non-strikers with
bodily harm, such as "Pag hindi sila pumayag, upakan mo!"; 47 and shouting at
the security guard "Granada!" which caused panic among the customers and
prompted security to report a possible death threat to management and the
security agency. 48
In the determination of the liabilities of the individual respondents, the

applicable provision is Article 264(a) of the Labor Code:
Art. 264. Prohibited Activities — (a) . . .
xxx xxx xxx
. . . Any union officer who knowingly participates in an illegal
strike and any worker or union officer who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost
his employment status: Provided, That mere participation of a worker
in a lawful strike shall not constitute sufficient ground for termination
of his employment, even if a replacement had been hired by the
employer during such lawful strike. EScHDA
xxx xxx xxx
In Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio Lines,

Inc. this Court explained that the effects of such illegal strikes, outlined in
49
Article 264, make a distinction between workers and union officers who
participate therein: an ordinary striking worker cannot be terminated for mere
participation in an illegal strike. There must be proof that he or she committed
illegal acts during a strike. A union officer, on the other hand, may be
terminated from work when he knowingly participates in an illegal strike, and
like other workers, when he commits an illegal act during a strike. 50 In all
cases, the striker must be identified. But proof beyond reasonable doubt is not
required. Substantial evidence available under the attendant circumstances,
which may justify the imposition of the penalty of dismissal, may suffice. 51
Liability for prohibited acts is to be determined on an individual basis:
Private Rank in Illegal Acts
Respondent Respondent
Union
Knowingly participating in an illegal strike;

shouting
at the security guard "Granada!" which
caused
panic among the customers; 52 Intimidating,
Emmanuel Cayno President harassing, preventing, and discouraging
customers
from entering the restaurant; 53 publicly
denouncing
the reputation of the establishment; 54 openly
threatening non-strikers with bodily harm; 55

Intimidating, harassing, preventing, and
discouraging customers from entering the
Billy Bacus Vice President restaurant; 56 use of abusive language
towards
management or non-strikers; 57 deliberately
blocking
the movements of management or non-
strikers
inside the restaurant; 58

Analiza Cablay Secretary Intimidating, harassing, preventing, and
restaurant; 59

Jose Neil Arcilla Treasurer restaurant; 60 publicly denouncing the
reputation of
the establishment; 61 coercing non-strikers to
strike; 62 Cursing and use of abusive language
towards management, non-strikers, or
customers; 63

Roel Esancha Auditor intimidating, harassing, preventing, and
discouraging
customers from entering the restaurant; 64
Knowingly participating in an illegal strike; use

of
abusive language towards management, non-
strikers, or customers; 65 intimidating,
harassing,
Claudio Panaligan Board Member preventing, and discouraging customers from
entering the restaurant; 66 deliberately
blocking the
movements of management or non-strikers
inside
the restaurant; 67

Rey Arsenal Member discouraging customers from entering the
restaurant; 68

Alex Martinez Member discouraging customers from entering the
restaurant; 69
Cursing and use of abusive language towards
management, non-strikers, or customers; 70
deliberately blocking the movements of
Hermie Raz Member management or non-strikers inside the
restaurant; 71 intimidating, harassing,
preventing,
and discouraging customers from entering the
restaurant; 72

Jose Lanorias Member discouraging customers from entering the
restaurant; 73
Lito Arce Member Id. 74
Cesar Sangreo Member Id. 75
Rolando Fabregas Member Id. 76
Id.; 77 deliberately blocking movements of

non-
strikers inside the restaurant by sharply
bumping
Jimmy Balan Member into them 78 or through indecent physical
contact;
79 cursing and use of abusive language
towards
Joven Lualhati Member Intimidating, harassing, preventing, and

restaurant; 81
Antonio Enebrad Member Id. 82
Edgar Eugenio Member Id.; 83 cursing and use of abusive language

towards

Albert Agbuya Member discouraging customers from entering the
restaurant; 85
Arnel Salvador Member Id. 86
Ricky Del Prado Member Id. 87
Bernie Del Mundo Member Id. 88
Roberto Eco Member Id. 89

Joven Talidong Member Id. 90
Leny Lucente Member Id.; 91 threatening non-strikers with bodily

harm; 92

Rigoberto Tubaon Member restaurant; 93cursing and use of abusive
language
customers; 94

Merly Naz Member restaurant; 95 cursing and use of abusive
language
customers; 96
Lino Salubre Member Preventing and discouraging customers from

entering the restaurant; 97
Rolando Pugong Member Preventing and discouraging customers from

entering the restaurant; 98

John Bathan Member discouraging customers from entering the
restaurant; 99
Thus, the Labor Arbiter is correct in ruling that the employment of all
individual private respondents are deemed validly terminated.
WHEREFORE, the petition is granted. The Decision and Resolution of the

Court of Appeals together with the Decision dated November 29, 2000 of the
National Labor Relations Commission are REVERSED and SET ASIDE. The
Decision of the Labor Arbiter dated October 12, 1999 is REINSTATED. The Court
finds the strike illegal and, as a consequence thereto, the union officers who
participated in the illegal strike and in the commission of illegal acts, namely,
Emmanuel Cayno, Billy Bacus, Analiza Cablay, Jose Neil Arcilla, Roel Esancha,
and Claudio Panaligan, as well as the union members who participated in the
commission of illegal acts during the strike, namely, Rey Arsenal, Alex Martinez,
Hermie Raz, Jose Lanorias, Lito Arce, Cesar Sangreo, Rolando Fabregas, Jimmy
Balan, Joven Lualhati, Antonio Enebrad, Edgar Eugenio, Albert Agbuya, Arnel
Salvador, Ricky Del Prado, Bernie Del Mundo, Roberto Eco, Joven Talidong, Leny
Lucente, Rigoberto Tubaon, Merly Naz, Lino Salubre, Rolando Pugong, and John
Bathan, all private respondents, are hereby declared to have lost their
employment status.
No pronouncement as to costs.

SO ORDERED.
Panganiban, C.J., Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ.,
concur.
Footnotes
1. Penned by Associate Justice Eliezer R. De Los Santos, with Associate Justices

Godardo A. Jacinto (now retired) and Bernardo P. Abesamis (now retired),
concurring.
2. Id.
3. The name of the petitioner as a party-in-interest should read "Rosemich,
Inc." which is the legal entity that owns and manages the Sukhothai
restaurants at the SM Megamall Bldg. A and at the Ayala Center (Glorietta 3)
branches. See rollo, pp. 240, 243, 245, 247. The caption may also read
"Rosemich, Inc., doing business under the name and style Sukhothai Cuisine
and Restaurant."
4. At the time of the suit, the Union membership included the employees of
both the SM Mega Mall (Mandaluyong) and Glorietta III (Ayala Center, Makati
City) branches of the petitioner.
5. Rollo , pp. 87-88.
6. Id. at 100-101.
7. CA rollo, p. 16.
8. Rollo , p. 30.
9. Labor Code, Art. 263. Strikes, picketing and lockouts. — (a) . . .
xxx xxx xxx
(c) In cases of bargaining deadlocks, the duly certified or recognized

bargaining agent may file a notice of strike or the employer may file a notice
of lockout with the Department at least thirty (30) days before the intended
date thereof. In cases of unfair labor practice, the period of notice shall be
fifteen (15) days and in the absence of a duly certified or recognized
bargaining agent, the notice of strike may be filed by any legitimate labor
organization in behalf of its members. However, in case of dismissal from
employment of union officers duly elected in accordance with the union
constitution and by-laws, which may constitute union busting where the
existence of the union is threatened, the 15-day cooling-off period shall not
apply and the union may take action immediately.
xxx xxx xxx
(f) A decision to declare a strike must be approved by a majority of the

total union membership in the bargaining unit concerned, obtained by secret
ballot in meetings or referenda called for that purpose. A decision to declare
a lockout must be approved by a majority of the board of directors of the
corporation or association or of the partners in a partnership, obtained by
secret ballot in a meeting called for that purpose. The decision shall be valid
for the duration of the dispute based on substantially the same grounds
considered when the strike or lockout vote was taken . The Department may
at its own initiative or upon the request of any affected party, supervise the
conduct of the secret balloting. In every case, the union or the employer shall
furnish the Department the results of the voting at least seven days before
the intended strike or lockout, subject to the cooling-off period herein
provided. (emphasis supplied)
10. San Miguel Corp. v. National Labor Relations Commission , 451 Phil. 514,
527 (2003); Insurefco Paper Pulp & Project Workers' Union v. Insular Sugar
Refining Corp., 95 Phil. 761, 768 (1954).
11. Telefunken Semiconductors Employees Union v. Court of Appeals, 401 Phil.
776, 795 (2000); Zamboanga Wood Products, Inc. v. National Labor Relations
Commission , G.R. No. 82088, October 13, 1989, 178 SCRA 482, 491.
12. THE LABOR CODE OF THE PHILIPPINES, P.D. No. 442, as amended, Art. 211
(1974).
13. 209 Phil. 1 (1983).
14. Id.at 15. See Social Security System Employees Association (SSSEA) v.
Court of Appeals, G.R. No. 85279, July 28, 1989, 175 SCRA 686, 697
(reiterating the foregoing labor-relations policy). A dispute pending in
voluntary arbitration (or compulsory arbitration) cannot be the subject of a
strike or lockout notice. 2 C.A. AZUCENA, THE LABOR CODE WITH COMMENTS
AND CASES 377 (1999), interpreting THE LABOR CODE OF THE PHILIPPINES,
P.D. No. 442, as amended, Art. 264 (1974).
15. See THE LABOR CODE OF THE PHILIPPINES, P.D. No. 442, as amended, Art.
217(a)(2) (1974). See generally National Union of Workers in Hotels,
Restaurants and Allied Industries (NUWHRAIN) — Peninsula Manila Chapter v.
National Labor Relations Commission, 350 Phil. 641, 651 (1998).
16. LABOR CODE, Articles 260 and 262 provide:
Article 260. Grievance Machinery and Voluntary Arbitration. — The parties
to a Collective Bargaining Agreement shall include therein provisions that will
ensure the mutual observance of its terms and conditions. They shall
establish a machinery for the adjustment and resolution of grievances arising
from the interpretation or implementation of their Collective Bargaining
Agreement and those arising from the interpretation or enforcement of
company personnel policies.
xxx xxx xxx
For this purpose, parties to a Collective Bargaining Agreement shall name

and designate in advance a Voluntary Arbitrator or panel of Voluntary
Arbitrators, or include in the agreement a procedure for the selection of such
Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the
listing of qualified Voluntary Arbitrators duly accredited by the Board. In case
the parties fail to select a Voluntary Arbitrator or panel of Voluntary
Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of
Voluntary Arbitrators, as may be necessary, pursuant to the selection
procedure agreed upon in the Collective Bargaining Agreement, which shall
act with the same force and effect as if the Arbitrator or panel of Arbitrators
has been selected by the parties as described above.
Article 262. Jurisdiction over other labor disputes . — The Voluntary
Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties,
shall also hear and decide all other labor disputes including unfair labor
practices and bargaining deadlocks.
See National Union of Workers in Hotels, Restaurants and Allied Industries

(NUWHRAIN) — Peninsula Manila Chapter v. National Labor Relations
Commission, supra note 15.
17. National Union of Workers in Hotels, Restaurants and Allied Industries
(NUWHRAIN) — Peninsula Manila Chapter v. National Labor Relations
Commission, supra note 15, at 652.
18. First City Interlink Transportation Co., Inc.. v. Sec. Confesor, 338 Phil. 635,
644 (1997) (holding that the union cannot invoke good faith when
conciliation meetings were ongoing). A mere claim of good faith would not
justify the holding of a strike under the aforesaid exception as, in addition
thereto, the circumstances must have warranted such belief. It is therefore,
not enough that the union believed that the employer committed acts of
unfair labor practice when the circumstances clearly negate even a prima
facie showing to sustain such belief. National Union of Workers in Hotels,
Restaurants and Allied Industries (NUWHRAIN) — Peninsula Manila Chapter v.
National Labor Relations Commission, supra note 15, at 650; Tiu v. National
Labor Relations Commission, 343 Phil. 478, 486-487 (1997).
19. San Miguel Corp. v. National Labor Relations Commission, supra note 10, at
527; San Miguel Corp. v. National Labor Relations Commission , 363 Phil. 377,
384 (1999).
20. THE LABOR CODE, Article 263(c), provides in part: ". . . However, in case of
dismissal from employment of union officers duly elected in accordance with
the union constitution and by-laws, which may constitute union busting
where the existence of the union is threatened, the 15-day cooling-off period
shall not apply and the union may take action immediately."
21. Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio Lines, Inc .,

G.R. No. 140992, March 25, 2004, 426 SCRA 319, 325; Gold City Integrated
Port Service, Inc. v. National Labor Relations Commission, 315 Phil. 698, 709
(1995); Union of Filipro Employees v. Nestlé Philippines, Inc., G.R. Nos.
88710-13, December 19, 1990, 192 SCRA 396, 411-412; National Federation
of Sugar Workers (NFSW) v. Ovejera , 199 Phil. 537, 550 (1982). The claim of
good faith is not a valid excuse to dispense with the procedural steps for a
lawful strike. Grand Boulevard Hotel, Inc. v. Genuine Labor Organization of
Workers in Hotel, Restaurant and Allied Industries (GLOWHRAIN), 454 Phil.
463, 490 (2003).
22. See 2 C.A. AZUCENA, THE LABOR CODE WITH COMMENTS AND CASES, pp.
421-422 (1999).
23. Association of Independent Unions in the Philippines (AIUP) v. National

Labor Relations Commission, 364 Phil. 697, 707 (1999).
24. United Seamen's Union of the Philippines v. Davao Shipowners Association,
G.R. Nos. L-18778 & L-18779, August 31, 1967, 20 SCRA 1226, 1240.
25. Cromwell Commercial Employees and Laborers Union (PTUC) v. Court of

Industrial Relations, G.R. No. L-19778, September 30, 1964, 12 SCRA 124,
132.
26. Liberal Labor Union v. Philippine Can Co., 91 Phil. 72, 78 (1952).
27. Linn v. United Plan Guard Workers , 15 L.Ed 2d 582.
28. 31 AM. JUR. § 245, p. 954; 116 A.L.R. 477, 505; 32 A.L.R. 756; 27 A.L.R. 375;
cited in 2 C.A. AZUCENA, THE LABOR CODE WITH COMMENTS AND CASES p.
500 (1999).

Labor Relations Commission, supra note 23, at 706-707; United Seamen's
Union of the Philippines v. Davao Shipowners Association, supra note 24, at
1236.
30. Id.
31. Id.; The following likewise have been found to be illegal acts: where strikers
hijacked the employer's bus and barricaded the terminal by means of five
buses which had also been hijacked; the hijacking of 26 more buses which
resulted in injuries to some employees and panic to the commuters; the
destruction of company property; and the use of molotov bombs thrown into
the work compound, First City Interlink Transportation Co., Inc. v. Sec.
Confesor, supra note 18, at 645; where non-strikers were mauled and
suffered physical injuries inflicted by the strikers, United Seamen's Union of
the Philippines v. Davao Shipowners Association, supra note 24, at 1237;
Shell Oil Workers Union v. Shell Company of the Philippines, Ltd., 148-A Phil.
229, 247; the breaking of the truck side and windows, and throwing of empty
bottles at non-strikers, Philippine Marine Officers' Guild v. Compania
Maritima, 131 Phil. 218, 232 (1968); where the strikers resorted to terrorism
to prevent non-strikers from working, Liberal Labor Union v. Philippine Can
Co., supra note 26, at 78; where acts of sabotage were committed against
property, National Labor Union, Inc. v. Court of Industrial Relations, 70 Phil.
300; and where the strikers committed acts of violence by hurling stones
which smashed glass windows of the building of the company and headlights
of the car, Cromwell Commercial Employees and Laborers Union (PTUC) v.
Court of Industrial Relations, supra note 25, at 132. Moreover, authorities are
of the view that where the picketing is so conducted as to amount to a
nuisance, the picketing is unlawful. The following have been deemed acts of
nuisance: where the obstruction to the free use of property so as
substantially to interfere with the comfortable enjoyment of life or property;
where the picketing constitutes an unlawful obstruction to the free passage
or use, in the customary manner, of a street, 31 AM. JUR. § 248, p. 955, cited
in 2 C.A. AZUCENA, THE LABOR CODE WITH COMMENTS AND CASES p. 499
(1999); where there is an obstruction of access of customers, since pickets
may not aggressively interfere with the right of peaceful ingress and egress
to and from the employer's shop; where the entrance to the place of business
is obstructed by protesters parading around in a circle or lying on the
sidewalk, 31 AM. JUR. § 249, p. 955, cited in 2 C.A. AZUCENA, THE LABOR
CODE WITH COMMENTS AND CASES p. 499 (1999); where vandalism and acts
of a less terroristic nature are carried out to cause physical discomfort to the
employer's customers, 48-A AM. JUR. 2d 2059, pp. 427-28, cited in 2 C.A.
AZUCENA, THE LABOR CODE WITH COMMENTS AND CASES p. 499 (1999);
and where words or acts are calculated and intended to cause an ordinary
person to fear an injury to his person, business, or property; where there is
display of force without actual use thereof may be intimidation, id .
Authorities are also of the view that the following means used to carry on a
picketing or strike were illegal: where the strikers conspired to injure the
business by inducing willing patrons and would-be patrons to withdraw or
withhold patronage by assembling at or near the entrance of the restaurant
during all business hours and continuously announcing in a loud voice,
audible for a great distance, that the restaurant was unfair to the labor
union; by disparaging the restaurant, charging that the prices were higher
and the food worse than in any other restaurant; and by attacking the
character of those who did patronize, saying that their mental caliber and
moral fiber fell below the average. Truax v. Corrigan , 257 U.S. 312 (1921),
cited in 2 C.A. AZUCENA, THE LABOR CODE WITH COMMENTS AND CASES pp.
500-501 (1999). But minor disorders where rising passions resulting in the
exchange of hot words in the picket line do not impede or diminish the right
to strike. Insular Life Assurance Co., Ltd. Employees Association-NATU v. The
Insular Life Assurance Co., Ltd., 147 Phil. 194, 220-221 (1971); Republic Steel
Co. v. National Labor Relations Board 107 F. 2d 472, cited in MATHEWS,
LABOR RELATIONS AND THE LAW 378; 2 C.A. AZUCENA, THE LABOR CODE
WITH COMMENTS AND CASES p. 449 (1999).
32. C.A. AZUCENA, EVERYONE'S LABOR CODE 268 (2001) (interpreting Art.
264(e) of the Labor Code).
33. Affidavit of Ernest A. Briza dated July 8, 1999, rollo, pp. 236-237; Affidavit of
Ernesto J. Garcia dated July 15, 1999, id . at 240-242; Affidavit of Marissa C.
Ileto dated July 15, 1999, id . at 243-244; Affidavit of Ruben T. Tabonares, Jr.
dated July 15, 1999, id . at 252; Affidavit of Leolito S. Adim dated July 21,
1999, id . at 253; Affidavit of Julius M. Dela Cruz dated September 20, 1999,
id. at 258; Affidavit of Rianna de Belen dated September 20, 1999, id. at 261-
262.
34. Affidavit of Ernest A. Briza, supra; Affidavit of Ernesto J. Garcia, supra;
Affidavit of Ruben T. Tabonares, Jr., supra; Affidavit of Julius M. Dela Cruz,
supra.
35. Affidavit of Rico G. Calixijan, supra.
36. Affidavit of Rianna de Belen, supra.
37. Affidavit of Ma. Teresa Dela Cruz dated July 15, 1999; Rollo , p. 239.
38. Affidavit of Ruben T. Tabonares, Jr., supra; Affidavit of Leolito S. Adim,
supra; Affidavit of Rianna de Belen, supra.
40. Affidavit of Ma. Teresa Dela Cruz, supra; Affidavit of Ernesto J. Garcia, supra.
41. Affidavit of Rosario V. Garcia dated July 15, 1999; rollo, p. 249; Affidavit of
Ruben T. Tabonares, Jr., supra; Affidavit of Teresa Ileto-Severino dated
September 20, 1999, rollo, p. 259; Affidavit of Julius M. Dela Cruz, supra.

42. Affidavit of Joanna Lisa A. Morata dated July 15, 1999, rollo, p. 245; Affidavit
of Ruben T. Tabonares, Jr., supra; Affidavit of Julius M. Dela Cruz, supra;
Affidavit of Rianna de Belen, supra.
43. Affidavit of Rosario V. Garcia, supra.

44. Affidavit of Joanna Lisa A. Morata, supra; Affidavit of Julius M. Dela Cruz,
supra.
45. Affidavit of Lucille Entong dated September 20, 1999, rollo, p. 257; Affidavit
of Julius M. Dela Cruz, supra.
46. Affidavit of Lucille Entong, supra; Affidavit of Julius M. Dela Cruz, supra.
47. Affidavit of Dante Versola dated July 15, 1999, rollo, p. 254; Affidavit of Rico
G. Calixijan, supra; Affidavit of Lucille Entong, supra.
48. Affidavit of Erwin B. Gonzaga dated September 20, 1999, rollo, p. 264.
49. Supra note 21; Telefunken Semiconductors Employees Union-FFW v.

Secretary of Labor and Employment, 347 Phil. 447, 454-455 (1997); Gold City
Integrated Port Service, Inc. v. National Labor Relations Commission, supra
note 21, at 709-710.
50. Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio Lines, Inc.,

supra note 21, at 328; Union officers are duty bound to guide their members
to respect the law. If instead of doing so, the officers urge the members to
violate the law and defy the duly constituted authorities; their dismissal from
the service is a just penalty or sanction for their unlawful acts. The officers'
responsibility is greater than that of the members. Association of
Independent Unions in the Philippines (AIUP) v. National Labor Relations
Commission, supra note 23, at 708; Continental Cement Labor Union v.
Continental Cement Corporation, G.R. No. 51544, August 30, 1990, 189 SCRA
134, 141; First City Interlink Transportation Co., Inc. v. Sec. Confesor, supra
note 18, at 644; Lapanday Workers Union v. National Labor Relations
Commission , G.R. Nos. 95494-97, September 7, 1995, 248 SCRA 95, 106.
Labor Relations Commission, supra note 23, at 709.
52. Affidavit of Erwin B. Gonzaga, supra.

Affidavit of Teresa Ileto-Severino, supra.

55. Id.
56. Affidavit of Teresa Ileto-Severino, supra.
57. Affidavit of Ma. Teresa Dela Cruz, supra.
58. Affidavit of Joanna Lisa A. Morata, supra; Affidavit of Rosario V. Garcia,

supra.
Affidavit of Marissa C. Ileto dated July 15, 1999, rollo, pp. 243-244; Affidavit
of Teresa Ileto-Severino, supra.
62. Affidavit of Dante Versola, supra.

63. Id.
65. Affidavit of Joanna Lisa A. Morata, supra; Affidavit of Teresa Ileto-Severino,
supra.
67. Affidavit of Joanna Lisa A. Morata, supra.


70. Affidavit of Ma. Teresa Dela Cruz, supra; Affidavit of Ernesto J. Garcia, supra;
Affidavit of Joanna Lisa A. Morata, supra; Affidavit of Rosario V. Garcia, supra;
Affidavit of Lucille Entong, supra; Affidavit of Teresa Ileto-Severino, supra;
71. Affidavit of Joanna Lisa A. Morata, supra.
73. Id.
74. Id.
77. Affidavit of Ernesto J. Garcia, supra; Affidavit of Joanna Lisa A. Morata,

supra; Affidavit of Teresa Ileto-Severino, supra.

82. Id.
83. Affidavit of Ernesto J. Garcia, supra; Affidavit of Teresa Ileto-Severino, supra.
84. Affidavit of Lucille Entong, supra; Affidavit of Teresa Ileto-Severino, supra;

85. Affidavit of Ernesto J. Garcia, supra; Affidavit of Joanna Lisa A. Morata,

supra; Affidavit of Teresa Ileto-Severino, supra.
86. Affidavit of Teresa Ileto-Severino, supra; Affidavit of Ernesto J. Garcia, supra.

88. Id.
90. Affidavit of Teresa Ileto-Severino, supra; Affidavit of Ernest A. Briza, supra;
Affidavit of Ernesto J. Garcia, supra.

92. Affidavit of Dante Versola, supra.
94. Affidavit of Lucille Entong, supra.

95. Affidavit of Ernest A. Briza, supra. Affidavit of Marissa C. Ileto, supra;
96. Affidavit of Lucille Entong, supra.

97. Affidavit of Ernesto J. Garcia, supra.
98. Id.

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FIRST DIVISION

[G.R. No. 150437. July 17, 2006.]

SUKHOTHAI CUISINE and RESTAURANT, petitioner, vs. COURT

The undisputed facts are as follows:

On March 24, 1999, during the pendency of the voluntary arbitration

Finally, all individual respondents are hereby directed to

All striking workers are hereby ordered to return to work

B. THERE WERE NO STRIKEABLE ISSUES; AND

The petition is meritorious.

Respondents insist that the ﬁling of the Notice of Strike on December 3,

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Article 264 of the Labor Code provides:

This Court has held that strikes staged in violation of agreements

The alleged dismissals of Lucente and respondent Lanorias, both union

For failing to exhaust all steps in the arbitration proceedings by virtue of

With respect to respondents' averment that assuming arguendo that the

However, in case of unfair labor practice involving the dismissal

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What is more, the strike had been attended by the widespread

In the determination of the liabilities of the individual respondents, the

xxx xxx xxx

In Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio Lines,

Knowingly participating in an illegal strike;

Knowingly participating in an illegal strike;

Knowingly participating in an illegal strike;

Knowingly participating in an illegal strike;

Knowingly participating in an illegal strike;

Knowingly participating in an illegal strike; use

Intimidating, harassing, preventing, and

Intimidating, harassing, preventing, and

Intimidating, harassing, preventing, and

Lito Arce Member Id. 74

Cesar Sangreo Member Id. 75

Rolando Fabregas Member Id. 76

Id.; 77 deliberately blocking movements of

Joven Lualhati Member Intimidating, harassing, preventing, and

Antonio Enebrad Member Id. 82

Edgar Eugenio Member Id.; 83 cursing and use of abusive language

Intimidating, harassing, preventing, and

Arnel Salvador Member Id. 86

Ricky Del Prado Member Id. 87

Bernie Del Mundo Member Id. 88

Roberto Eco Member Id. 89

Leny Lucente Member Id.; 91 threatening non-strikers with bodily

Intimidating, harassing, preventing, and

Intimidating, harassing, preventing, and

Lino Salubre Member Preventing and discouraging customers from

Rolando Pugong Member Preventing and discouraging customers from

Intimidating, harassing, preventing, and

WHEREFORE, the petition is granted. The Decision and Resolution of the

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1. Penned by Associate Justice Eliezer R. De Los Santos, with Associate Justices

(c) In cases of bargaining deadlocks, the duly certified or recognized

xxx xxx xxx

(f) A decision to declare a strike must be approved by a majority of the

13. 209 Phil. 1 (1983).

xxx xxx xxx

For this purpose, parties to a Collective Bargaining Agreement shall name

See National Union of Workers in Hotels, Restaurants and Allied Industries