U.S.

Supreme Court
Loving v. Virginia, 388 U.S. 1 (1967)
Loving v. Virginia
No. 395
Argued April 10, 1967
Decided June 12, 1967
388 U.S. 1
APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA
Syllabus
Virginia's statutory scheme to prevent marriages between persons solely on the basis of
racial classifications held to violate the Equal Protection and Due Process Clauses of
the Fourteenth Amendment. Pp. 388 U. S. 4-12.
206 Va. 924, 147 S.E.2d 78, reversed.
Page 388 U. S. 2
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case presents a constitutional question never addressed by this Court: whether a
statutory scheme adopted by the State of Virginia to prevent marriages between
persons solely on the basis of racial classifications violates the Equal Protection and
Due Process Clauses of the Fourteenth Amendment. [Footnote 1] For reasons which
seem to us to reflect the central meaning of those constitutional commands, we
conclude that these statutes cannot stand consistently with the Fourteenth Amendment.
In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard
Loving, a white man, were married in the District of Columbia pursuant to its laws.
Shortly after their marriage, the Lovings returned to Virginia and established their marital
abode in Caroline County. At the October Term, 1958, of the Circuit Court

Page 388 U. S. 3
of Caroline County, a grand jury issued an indictment charging the Lovings with violating
Virginia's ban on interracial marriages. On January 6, 199, the Lovings pleaded guilty to
the charge, and were sentenced to one year in jail; however, the trial judge suspended
the sentence for a period of 25 years on the condition that the Lovings leave the State
and not return to Virginia together for 25 years. He stated in an opinion that:
"Almighty God created the races white, black, yellow, malay and red, and he placed
them on separate continents. And, but for the interference with his arrangement, there
would be no cause for such marriage. The fact that he separated the races shows that
he did not intend for the races to mix."
After their convictions, the Lovings took up residence in the District of Columbia. On
November 6, 1963, they filed a motion in the state trial court to vacate the judgment and
set aside the sentence on the ground that the statutes which they had violated were
repugnant to the Fourteenth Amendment. The motion not having been decided by
October 28, 1964, the Lovings instituted a class action in the United States District Court
for the Eastern District of Virginia requesting that a three-judge court be convened to
declare the Virginia anti-miscegenation statutes unconstitutional and to enjoin state
officials from enforcing their convictions. On January 22, 1965, the state trial judge
denied the motion to vacate the sentences, and the Lovings perfected an appeal to the
Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District
Court continued the case to allow the Lovings to present their constitutional claims to
the highest state court.
The Supreme Court of Appeals upheld the constitutionality of the anti-miscegenation
statutes and, after
Page 388 U. S. 4
modifying the sentence, affirmed the convictions. [Footnote 2] The Lovings appealed
this decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986.
The two statutes under which appellants were convicted and sentenced are part of a
comprehensive statutory scheme aimed at prohibiting and punishing interracial
marriages. The Lovings were convicted of violating 258 of the Virginia Code:

"Leaving State to evade law. -- If any white person and colored person shall go out of
this State, for the purpose of being married, and with the intention of returning, and be
married out of it, and afterwards return to and reside in it, cohabiting as man and wife,
they shall be punished as provided in 20-59, and the marriage shall be governed by
the same law as if it had been solemnized in this State. The fact of their cohabitation
here as man and wife shall be evidence of their marriage."
Section 259, which defines the penalty for miscegenation, provides:
"Punishment for marriage. -- If any white person intermarry with a colored person, or
any colored person intermarry with a white person, he shall be guilty of a felony and
shall be punished by confinement in the penitentiary for not less than one nor more than
five years."
Other central provisions in the Virginia statutory scheme are 20-57, which
automatically voids all marriages between "a white person and a colored person"
without any judicial proceeding, [Footnote 3] and 20-54 and 1-14 which,
Page 388 U. S. 5
respectively, define "white persons" and "colored persons and Indians" for purposes of
the statutory prohibitions. [Footnote 4] The Lovings have never disputed in the course of
this litigation that Mrs. Loving is a "colored person" or that Mr. Loving is a "white person"
within the meanings given those terms by the Virginia statutes.
Page 388 U. S. 6
Virginia is now one of 16 States which prohibit and punish marriages on the basis of
racial classifications. [Footnote 5] Penalties for miscegenation arose as an incident to
slavery, and have been common in Virginia since the colonial period. [Footnote 6] The
present statutory scheme dates from the adoption of the Racial Integrity Act of 1924,
passed during the period of extreme nativism which followed the end of the First World
War. The central features of this Act, and current Virginia law, are the absolute
prohibition of a "white person" marrying other than another "white person," [Footnote 7]
a prohibition against issuing marriage licenses until the issuing official is satisfied that
Page 388 U. S. 7

the applicants' statements as to their race are correct, [Footnote 8] certificates of "racial
composition" to be kept by both local and state registrars, [Footnote 9] and the carrying
forward of earlier prohibitions against racial intermarriage. [Footnote 10]

I
In upholding the constitutionality of these provisions in the decision below, the Supreme
Court of Appeals of Virginia referred to its 1965 decision in Naim v. Naim, 197 Va. 80,
87 S.E.2d 749, as stating the reasons supporting the validity of these laws. In Naim, the
state court concluded that the State's legitimate purposes were "to preserve the racial
integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of
citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine
of White Supremacy. Id. at 90, 87 S.E.2d at 756. The court also reasoned that marriage
has traditionally been subject to state regulation without federal intervention, and,
consequently, the regulation of marriage should be left to exclusive state control by the
Tenth Amendment.
While the state court is no doubt correct in asserting that marriage is a social relation
subject to the State's police power, Maynard v. Hill, 125 U. S. 190 (1888), the State does
not contend in its argument before this Court that its powers to regulate marriage are
unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do
so in light of Meyer v. Nebraska, 262 U. S. 390 (1923), and Skinner v. Oklahoma, 316 U.
S. 535 (1942). Instead, the State argues that the meaning of the Equal Protection
Clause, as illuminated by the statements of the Framers, is only that state penal laws
containing an interracial element
Page 388 U. S. 8
as part of the definition of the offense must apply equally to whites and Negroes in the
sense that members of each race are punished to the same degree. Thus, the State
contends that, because its miscegenation statutes punish equally both the white and the
Negro participants in an interracial marriage, these statutes, despite their reliance on
racial classifications, do not constitute an invidious discrimination based upon race. The
second argument advanced by the State assumes the validity of its equal application
theory. The argument is that, if the Equal Protection Clause does not outlaw
miscegenation statutes because of their reliance on racial classifications, the question of
constitutionality would thus become whether there was any rational basis for a State to

treat interracial marriages differently from other marriages. On this question, the State
argues, the scientific evidence is substantially in doubt and, consequently, this Court
should defer to the wisdom of the state legislature in adopting its policy of discouraging
interracial marriages.
Because we reject the notion that the mere "equal application" of a statute containing
racial classifications is enough to remove the classifications from the Fourteenth
Amendment's proscription of all invidious racial discriminations, we do not accept the
State's contention that these statutes should be upheld if there is any possible basis for
concluding that they serve a rational purpose. The mere fact of equal application does
not mean that our analysis of these statutes should follow the approach we have taken
in cases involving no racial discrimination where the Equal Protection Clause has been
arrayed against a statute discriminating between the kinds of advertising which may be
displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U.
S. 106(1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a
nonresident in a storage warehouse, Allied Stores of Ohio,
Page 388 U. S. 9
Inc. v. Bowers, 358 U. S. 522 (1959). In these cases, involving distinctions not drawn
according to race, the Court has merely asked whether there is any rational foundation
for the discriminations, and has deferred to the wisdom of the state legislatures. In the
case at bar, however, we deal with statutes containing racial classifications, and the fact
of equal application does not immunize the statute from the very heavy burden of
justification which the Fourteenth Amendment has traditionally required of state statutes
drawn according to race.
The State argues that statements in the Thirty-ninth Congress about the time of the
passage of the Fourteenth Amendment indicate that the Framers did not intend the
Amendment to make unconstitutional state miscegenation laws. Many of the statements
alluded to by the State concern the debates over the Freedmen's Bureau Bill, which
President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over
his veto. While these statements have some relevance to the intention of Congress in
submitting the Fourteenth Amendment, it must be understood that they pertained to the
passage of specific statutes, and not to the broader, organic purpose of a constitutional
amendment. As for the various statements directly concerning the Fourteenth

Amendment, we have said in connection with a related problem that, although these
historical sources "cast some light" they are not sufficient to resolve the problem;
"[a]t best, they are inconclusive. The most avid proponents of the post-War
Amendments undoubtedly intended them to remove all legal distinctions among 'all
persons born or naturalized in the United States.' Their opponents, just as certainly,
were antagonistic to both the letter and the spirit of the Amendments, and wished them
to have the most limited effect."
Brown v. Board of Education, 347 U. S. 483, 347 U. S. 489 (1954). See also Strauder
Page 388 U. S. 10
v. West Virginia, 100 U. S. 303, 100 U. S. 310 (1880). We have rejected the proposition
that the debates in the Thirty-ninth Congress or in the state legislatures which ratified
the Fourteenth Amendment supported the theory advanced by the State, that the
requirement of equal protection of the laws is satisfied by penal laws defining offenses
based on racial classifications so long as white and Negro participants in the offense
were similarly punished. McLaughlin v. Florida, 379 U. S. 184 (1964).
The State finds support for its "equal application" theory in the decision of the Court
in Pace v. Alabama, 106 U. S. 583 (1883). In that case, the Court upheld a conviction
under an Alabama statute forbidding adultery or fornication between a white person and
a Negro which imposed a greater penalty than that of a statute proscribing similar
conduct by members of the same race. The Court reasoned that the statute could not
be said to discriminate against Negroes because the punishment for each participant in
the offense was the same. However, as recently as the 1964 Term, in rejecting the
reasoning of that case, we stated "Pace represents a limited view of the Equal
Protection Clause which has not withstood analysis in the subsequent decisions of this
Court." McLaughlin v. Florida, supra, at379 U. S. 188. As we there demonstrated, the
Equal Protection Clause requires the consideration of whether the classifications drawn
by any statute constitute an arbitrary and invidious discrimination. The clear and central
purpose of the Fourteenth Amendment was to eliminate all official state sources of
invidious racial discrimination in the States. Slaughter-House Cases, 16 Wall. 36, 83 U.
S. 71(1873); Strauder v. West Virginia, 100 U. S. 303, 100 U. S. 307-308 (1880); Ex
parte Virginia, 100 U. S. 339, 100 U. S. 334-335 (1880); Shelley v. Kraemer, 334 U. S.
1 (1948); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961).

Page 388 U. S. 11
There can be no question but that Virginia's miscegenation statutes rest solely upon
distinctions drawn according to race. The statutes proscribe generally accepted conduct
if engaged in by members of different races. Over the years, this Court has consistently
repudiated "[d]istinctions between citizens solely because of their ancestry" as being
"odious to a free people whose institutions are founded upon the doctrine of
equality." Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 100 (1943). At the very
least, the Equal Protection Clause demands that racial classifications, especially
suspect in criminal statutes, be subjected to the "most rigid scrutiny,"Korematsu v.
United States, 323 U. S. 214, 323 U. S. 216 (1944), and, if they are ever to be upheld,
they must be shown to be necessary to the accomplishment of some permissible state
objective, independent of the racial discrimination which it was the object of the
Fourteenth Amendment to eliminate. Indeed, two members of this Court have already
stated that they
"cannot conceive of a valid legislative purpose . . . which makes the color of a person's
skin the test of whether his conduct is a criminal offense."
McLaughlin v. Florida, supra, at 379 U. S. 198 (STEWART, J., joined by DOUGLAS, J.,
concurring).
There is patently no legitimate overriding purpose independent of invidious racial
discrimination which justifies this classification. The fact that Virginia prohibits only
interracial marriages involving white persons demonstrates that the racial classifications
must stand on their own justification, as measures designed to maintain White
Supremacy. [Footnote 11] We have consistently denied
Page 388 U. S. 12
the constitutionality of measures which restrict the rights of citizens on account of race.
There can be no doubt that restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal Protection Clause.

II
These statutes also deprive the Lovings of liberty without due process of law in violation
of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has

long been recognized as one of the vital personal rights essential to the orderly pursuit
of happiness by free men.
Marriage is one of the "basic civil rights of man," fundamental to our very existence and
survival. Skinner v. Oklahoma, 316 U. S. 535,316 U. S. 541 (1942). See also Maynard
v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a
basis as the racial classifications embodied in these statutes, classifications so directly
subversive of the principle of equality at the heart of the Fourteenth Amendment, is
surely to deprive all the State's citizens of liberty without due process of law. The
Fourteenth Amendment requires that the freedom of choice to marry not be restricted by
invidious racial discriminations. Under our Constitution, the freedom to marry, or not
marry, a person of another race resides with the individual, and cannot be infringed by
the State.
These convictions must be reversed.
It is so ordered.
Page 388 U. S. 13
[Footnote 1]
Section 1 of the Fourteenth Amendment provides:
"All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
[Footnote 2]
206 Va. 924, 147 S.E.2d 78 (1966).
[Footnote 3]
Section 257 of the Virginia Code provides:

"Marriages void without decree. -- All marriages between a white person and a colored
person shall be absolutely void without any decree of divorce or other legal process."
Va.Code Ann. 20-57 (1960 Repl. Vol.).
[Footnote 4]
Section 20-54 of the Virginia Code provides:
"Intermarriage prohibited; meaning of term 'white persons.' -- It shall hereafter be
unlawful for any white person in this State to marry any save a white person, or a person
with no other admixture of blood than white and American Indian. For the purpose of
this chapter, the term 'white person' shall apply only to such person as has no trace
whatever of any blood other than Caucasian; but persons who have one-sixteenth or
less of the blood of the American Indian and have no other non-Caucasic blood shall be
deemed to be white persons. All laws heretofore passed and now in effect regarding the
intermarriage of white and colored persons shall apply to marriages prohibited by this
chapter."
Va.Code Ann. 20-54 (1960 Repl. Vol.).
The exception for persons with less than one-sixteenth "of the blood of the American
Indian" is apparently accounted for, in the words of a tract issued by the Registrar of the
State Bureau of Vital Statistics, by "the desire of all to recognize as an integral and
honored part of the white race the descendants of John Rolfe and Pocathontas. . . ."
Plecker, The New Family and Race Improvement, 17 Va.Health Bull., Extra No. 12, at
25-26 (New Family Series No. 5, 1925), cited in Wadlington, The Loving Case: Virginia's
Anti-Miscegenation Statute in Historical Perspective, 52 Va.L.Rev. 1189, 1202, n. 93
(1966).
Section 1-14 of the Virginia Code provides:
"Colored persons and Indians defined. -- Every person in whom there is ascertainable
any Negro blood shall be deemed and taken to be a colored person, and every person
not a colored person having one fourth or more of American Indian blood shall be
deemed an American Indian; except that members of Indian tribes existing in this
Commonwealth having one fourth or more of Indian blood and less than one sixteenth
of Negro blood shall be deemed tribal Indians."

Va.Code Ann. 1-14 (1960 Repl. Vol.).

[Footnote 5]
After the initiation of this litigation, Maryland repealed its prohibitions against interracial
marriage, Md.Laws 1967, c. 6, leaving Virginia and 15 other States with statutes
outlawing interracial marriage: Alabama, Ala.Const., Art. 4, 102, Ala.Code, Tit. 14,
360 (1958); Arkansas, Ark.Stat.Ann. 55-104 (1947); Delaware, Del.Code Ann., Tit. 13,
101 (1953); Florida, Fla.Const., Art. 16, 24, Fla.Stat. 741.11 (1965); Georgia,
Ga.Code Ann. 53-106 (1961); Kentucky, Ky.Rev.Stat.Ann. 402.020 (Supp. 1966);
Louisiana, La.Rev.Stat. 14:79 (1950); Mississippi, Miss.Const., Art. 14, 263,
Miss.Code Ann. 459 (1956); Missouri, Mo.Rev.Stat. 451.020 (Supp. 1966); North
Carolina, N.C.Const., Art. XIV, 8, N.C.Gen.Stat. 14-181 (1953); Oklahoma,
Okla.Stat., Tit. 43, 12 (Supp. 1965); South Carolina, S.C.Const., Art. 3, 33,
S.C.Code Ann. 20-7 (1962); Tennessee, Tenn.Const., Art. 11, 14, Tenn.Code Ann.
36-402 (1955); Texas, Tex.Pen.Code, Art. 492 (1952); West Virginia, W.Va.Code Ann.
4697 (1961).
Over the past 15 years, 14 States have repealed laws outlawing interracial marriages:
Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada,
North Dakota, Oregon, South Dakota, Utah, and Wyoming.
The first state court to recognize that miscegenation statutes violate the Equal
Protection Clause was the Supreme Court of California.Perez v. Sharp, 32 Cal.2d 711,
198 P.2d 17 (1948).
[Footnote 6]
For a historical discussion of Virginia's miscegenation
statutes, see Wadlington, supra, n 4.
[Footnote 7]
Va.Code Ann. 20-54 (1960 Repl. Vol.).
[Footnote 8]
Va.Code Ann. 20-53 (1960 Repl. Vol.).

[Footnote 9]
Va.Code Ann. 20-50 (1960 Repl. Vol.).
[Footnote 10]
Va.Code Ann. 254 (1960 Repl. Vol.).
[Footnote 11]
Appellants point out that the State's concern in these statutes, as expressed in the
words of the 1924 Act's title, "An Act to Preserve Racial Integrity," extends only to the
integrity of the white race. While Virginia prohibits whites from marrying any nonwhite
(subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and
any other racial class may intermarry without statutory interference. Appellants contend
that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable
even assuming the constitutional validity of an official purpose to preserve "racial
integrity." We need not reach this contention, because we find the racial classifications
in these statutes repugnant to the Fourteenth Amendment, even assuming an evenhanded state purpose to protect the "integrity" of all races.
MR. JUSTICE STEWART, concurring.
I have previously expressed the belief that "it is simply not possible for a state law to be
valid under our Constitution which makes the criminality of an act depend upon the race
of the actor." McLaughlin v. Florida, 379 U. S. 184, 379 U. S. 198 (concurring opinion).
Because I adhere to that belief, I concur in the judgment of the Court.
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G.R. No. 85279 July 28, 1989

SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON,
RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO
ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner,
vs.
THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO,
RTC, BRANCH 98, QUEZON CITY, respondents.
Vicente T. Ocampo & Associates for petitioners.

CORTES, J:
Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the
Social Security System Employees Association (SSSEA) from striking and order the striking
employees to return to work. Collaterally, it is whether or not employees of the Social Security
System (SSS) have the right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for
damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9,
1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to
the SSS Building, preventing non-striking employees from reporting for work and SSS members
from transacting business with the SSS; that the strike was reported to the Public Sector Labor Management Council, which ordered the strikers to return to work; that the strikers refused to return
to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a
writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return
to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be
declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which
included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement
(CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and
holiday pay; conversion of temporary or contractual employees with six (6) months or more of
service into regular and permanent employees and their entitlement to the same salaries,
allowances and benefits given to other regular employees of the SSS; and payment of the children's
allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the
employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21241].
The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the
application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a
motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-

82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of
injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the
motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after
finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of
the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition
for certiorari and prohibition with preliminary injunction before this Court. Their petition was docketed
as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division,
resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration
thereof, but during its pendency the Court of Appeals on March 9,1988 promulgated its decision on
the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the Court of Appeals' decision. In
the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577
for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was
also denied in view of this Court's denial of the motion for reconsideration [Rollo, pp. 141- 143].
Hence, the instant petition to review the decision of the Court of Appeals [Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order
enjoining the petitioners from staging another strike or from pursuing the notice of strike they filed
with the Department of Labor and Employment on January 25, 1989 and to maintain the status
quo [Rollo, pp. 151-152].
The Court, taking the comment as answer, and noting the reply and supplemental reply filed by
petitioners, considered the issues joined and the case submitted for decision.
The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case
initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as
jurisdiction lay with the Department of Labor and Employment or the National Labor Relations
Commission, since the case involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that the employees of the
SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they
do not have the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the
dispute, the Regional Trial Court may enjoin the employees from striking.
In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners,
the Court of Appeals held that since the employees of the SSS, are government employees, they are
not allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over
the SSS' complaint for damages, from continuing with their strike.
Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of
Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction
when it took cognizance of the case and enjoined the strike are as follows:
1. Do the employees of the SSS have the right to strike?
2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin
the strikers from continuing with the strike and to order them to return to work?

These shall be discussed and resolved seriatim

I
The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State
"shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec.
31].
By itself, this provision would seem to recognize the right of all workers and employees, including
those in the public sector, to strike. But the Constitution itself fails to expressly confirm this
impression, for in the Sub-Article on the Civil Service Commission, it provides, after defining the
scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters," that
"[t]he right to self-organization shall not be denied to government employees" [Art. IX(B), Sec. 2(l)
and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the people, including
those employed in the public and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that
the Constitution recognizes the right of government employees to organize, it is silent as to whether
such recognition also includes the right to strike.
Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning
of these provisions. A reading of the proceedings of the Constitutional Commission that drafted the
1987 Constitution would show that in recognizing the right of government employees to organize, the
commissioners intended to limit the right to the formation of unions or associations only, without
including the right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to selforganization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the
apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission,
explained:
MR. LERUM. I think what I will try to say will not take that long. When we proposed
this amendment providing for self-organization of government employees, it does not
mean that because they have the right to organize, they also have the right to strike.
That is a different matter. We are only talking about organizing, uniting as a union.
With regard to the right to strike, everyone will remember that in the Bill of Rights,
there is a provision that the right to form associations or societies whose purpose is
not contrary to law shall not be abridged. Now then, if the purpose of the state is to
prohibit the strikes coming from employees exercising government functions, that
could be done because the moment that is prohibited, then the union which will go on
strike will be an illegal union. And that provision is carried in Republic Act 875. In
Republic Act 875, workers, including those from the government-owned and
controlled, are allowed to organize but they are prohibited from striking. So, the fear
of our honorable Vice- President is unfounded. It does not mean that because we
approve this resolution, it carries with it the right to strike. That is a different matter.

As a matter of fact, that subject is now being discussed in the Committee on Social
Justice because we are trying to find a solution to this problem. We know that this
problem exist; that the moment we allow anybody in the government to strike, then
what will happen if the members of the Armed Forces will go on strike? What will
happen to those people trying to protect us? So that is a matter of discussion in the
Committee on Social Justice. But, I repeat, the right to form an organization does not
carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p.
569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor
Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including
instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary
functions:
.Sec. 11. Prohibition Against Strikes in the Government. The terms and conditions
of employment in the Government, including any political subdivision or
instrumentality thereof, are governed by law and it is declared to be the policy of this
Act that employees therein shall not strike for the purpose of securing changes or
modification in their terms and conditions of employment. Such employees may
belong to any labor organization which does not impose the obligation to strike or to
join in strike:Provided, however, That this section shall apply only to employees
employed in governmental functions and not those employed in proprietary functions
of the Government including but not limited to governmental corporations.
No similar provision is found in the Labor Code, although at one time it recognized the right of
employees of government corporations established under the Corporation Code to organize and
bargain collectively and those in the civil service to "form organizations for purposes not contrary to
law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that
"[t]he terms and conditions of employment of all government employees, including employees of
government owned and controlled corporations, shall be governed by the Civil Service Law, rules
and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or not
government employees may strike, for such are excluded from its coverage [Ibid]. But then the Civil
Service Decree [P.D. No. 807], is equally silent on the matter.
On June 1, 1987, to implement the constitutional guarantee of the right of government employees to
organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to
organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law
and rules governing concerted activities and strikes in the government service shall be observed,
subject to any legislation that may be enacted by Congress." The President was apparently referring
to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987
which, "prior to the enactment by Congress of applicable laws concerning strike by government
employees ... enjoins under pain of administrative sanctions, all government officers and employees
from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which
will result in temporary stoppage or disruption of public service." The air was thus cleared of the
confusion. At present, in the absence of any legislation allowing government employees to strike,
recognizing their right to do so, or regulating the exercise of the right, they are prohibited from

striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this
juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he
civil service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters" [Art.
IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are
denominated as "government employees"] and that the SSS is one such government-controlled
corporation with an original charter, having been created under R.A. No. 1161, its employees are
part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are
covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the
strike staged by the employees of the SSS was illegal.
The statement of the Court in Alliance of Government Workers v. Minister of Labor and
Employment [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale
for distinguishing between workers in the private sector and government employees with regard to
the right to strike:
The general rule in the past and up to the present is that 'the terms and conditions of
employment in the Government, including any political subdivision or instrumentality
thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as
amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the
terms and conditions of government employment are fixed by law, government
workers cannot use the same weapons employed by workers in the private sector to
secure concessions from their employers. 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, the terms and conditions of employment in the unionized
private sector are settled through the process of collective bargaining. In government
employment, however, it is the legislature and, where properly given delegated
power, the administrative heads of government which fix the terms and conditions of
employment. And this is effected through statutes or administrative circulars, rules,
and regulations, not through collective bargaining agreements. [At p. 13; Emphasis
supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper
submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance,
to wit:
It is the stand, therefore, of this Commission that by reason of the nature of the public
employer and the peculiar character of the public service, it must necessarily regard
the right to strike given to unions in private industry as not applying to public
employees and civil service employees. It has been stated that the Government, in

contrast to the private employer, protects the interest of all people in the public
service, and that accordingly, such conflicting interests as are present in private labor
relations could not exist in the relations between government and those whom they
employ. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No.
64313, January 17,1985,134 SCRA 172,178-179].
E.O. No. 180, which provides guidelines for the exercise of the right to organize of government
employees, while clinging to the same philosophy, has, however, relaxed the rule to allow
negotiation where the terms and conditions of employment involved are not among those fixed by
law. Thus:
.SECTION 13. Terms and conditions of employment or improvements thereof, except
those that are fixed by law, may be the subject of negotiations between duly
recognized employees' organizations and appropriate government authorities.
The same executive order has also provided for the general mechanism for the settlement of labor
disputes in the public sector to wit:
.SECTION 16. The Civil Service and labor laws and procedures, whenever
applicable, shall be followed in the resolution of complaints, grievances and cases
involving government employees. In case any dispute remains unresolved after
exhausting all the available remedies under existing laws and procedures, the parties
may jointly refer the dispute to the [Public Sector Labor- Management] Council for
appropriate action.
Government employees may, therefore, through their unions or associations, either petition the
Congress for the betterment of the terms and conditions of employment which are within the ambit of
legislation or negotiate with the appropriate government agencies for the improvement of those
which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the
Public Sector Labor - Management Council for appropriate action. But employees in the civil service
may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private
sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule
III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to
Self- Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of
employment in the government, including any political subdivision or instrumentality thereof and
government- owned and controlled corporations with original charters are governed by law and
employees therein shall not strike for the purpose of securing changes thereof."
II
The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law,
an injunction may be issued to restrain it.
It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive
jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of
injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and

conditions of employment of government employees shall be governed by the Civil Service Law,
rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor Management Council with jurisdiction over unresolved labor disputes involving government
employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.
This being the case, the Regional Trial Court was not precluded, in the exercise of its general
jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint
for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector
Labor - Management Council has not been granted by law authority to issue writs of injunction in
labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has
jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ
of injunction to enjoin the strike is appropriate.
Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had
proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike
to prevent any further disruption of public service, the respondent judge, in the same order,
admonished the parties to refer the unresolved controversies emanating from their employeremployee relationship to the Public Sector Labor - Management Council for appropriate action
[Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply
and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits
due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and
mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to
compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil
Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not
preventively suspended and who are reporting for work pending the resolution of the administrative
cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and
affirmed the previous order of the Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners'
remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid
order, if it has already become final.
WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant
petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in
CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and
Mandatory Injunction" dated December 13,1988 is DENIED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

G.R. No. 95445 August 6, 1991

MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION, FIDEL FABABIER MERLIN ANONUEVO,
MINDA GALANG and other teacher-members so numerous similarly situated, petitionersappellants,
vs.
THE HON. PERFECTO LAGUIO JR., in his capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch 18, HON. ISIDRO CARIO, in his capacity as Secretary of Education,
Culture and Sports and the HON. ERLINDA LOLARGA in her capacity as Manila City Schools
Superintendent, respondents-appellees.
G.R No. 95590 August 6, 1991
ALLIANCE OF CONCERNED TEACHERS (ACT), ENRIQUE D. TORRES, RODRIGO G.
NATIVIDAD, FRANCISCO A. NERECINA, EVA V. FERIA, LUCIA R. CARRASCO, LEO R.
RAMBOYONG, ZENEIDA PEREZ, MARIA ACEJO AND OTHER SIMILARLY SITUATED PUBLIC
SCHOOL TEACHERS TOO NUMEROUS TO BE IMPLEADED, petitioners,
vs.
HON. ISIDRO CARIO in his capacity as Secretary of Education, Culture and Sports and HON.
GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.
Free Legal Assistance Group, Movement of Attorneys for Brotherhood Integrity & Nationalism and
Union of Lawyers and Advocates for petitioners in G.R. No. 95590.
Gregorio Fabros for petitioners in G.R. No. 95445.

NARVASA, J.:p
The series of events that touched off these cases started with the so-called "mass action"
undertaken by some 800 public school teachers, among them members of the petitioning
associations in both cases, on September 17, 1990 to "dramatize and highlight" 1 the teachers' plight
resulting from the alleged failure of the public authorities to act upon grievances that had time and again
been brought to the latter's attention.
The petition in G.R. No. 95590 alleges in great detail the character and origins of those grievances
as perceived by the petitioners, and the attempts to negotiate their correction; 2 these are more briefly,
but quite adequately and with no sacrifice of relevant content, set forth in the petition in G.R. No. 954451,
portions of which are quoted hereunder without necessarily affirming their objective truth or correctness:
3. Together with other teachers embracing the Teachers and Employees Consultative
Council (TECC) and the Alliance of Concerned Teachers, the petitioners, in
accordance with their Constitution and By-Laws, resolved to engage in mass

concerted actions, after peaceful dialogues with the heads of the Department of the
Budget and Management, Senate and House of Representatives in public hearings
as well as after exhausting all administrative remedies, to press for, among other
things, the immediate payment of due chalk, clothing allowances, 13th month pay for
1989 arising from the implementation of the Salary Standardization Law, the recall of
DECS Order 39 s. 1990 directing the oversizing of classes and overloading of
teachers pursuant to the cost-cutting measures of the government, the hiring of
47,000 new teachers to ease the overload of existing teachers, the return of the
additional 1% real property taxes collected by local government units to education
purposes to be administered by the Local School Boards, and consequent recall of
DBM Circulars Nos. 904 and 9011 and local budget circular No. 47 consistent with
RA 5447 and the new Constitution mandating that education shall enjoy the highest
budgetary priority in the national budget, and other equally important demands; The
dialogues and conferences initiated by the petitioners and other teacher
organizations were as early as March 14, 1989, March 14, 1990, April 23, 1990, May
28, 1990, June 5, 1990, September 3, 1990 and September 14, 1990 with the Civil
Service Commission, the Senate and House of Representatives, Department of
Budget and Management and the Department of Education, Culture and Sports, but
all these did not result in the granting of the demands of the petitioners, leaving them
with no other recourse but to take direct mass action such as the one they engaged
in three weeks ago.
4. On September 14, 1990, the petitioners and other teachers in other cities and
municipalities in Metro Manila, staged a protest rally at the DECS premises without
disrupting classes as a last call for the government to negotiate the granting of
demands. No response was made by the respondent Secretary of Education, despite
the demonstration, so the petitioners began the ongoing protest mass actions on
September, 17,1990. ... 3
September 17, 1990 fell on a Monday, which was also a regular school day. There is no question
that the some 800 teachers who joined the mass action did not conduct their classes on that day;
instead, as alleged in the petition in G.R. No. 95590, 4 they converged at the Liwasang Bonifacio in the
morning whence they proceeded to the National Office of the Department of Education, Culture and Sport
(DECS) for a whole-day assembly. At about 1:00 o'clock p.m., three representatives of the group were
allowed to see the respondent Secretary of Education who "brushed aside their grievances," warned them
that they would lose their jobs for going on illegal and unauthorized mass leave. Upon leaving said
respondent's presence, they were handed an order directing all participants in the mass action to return to
work in 24 hours or face dismissal, and a memorandum directing the DECS officials concerned to initiate
dismissal proceedings against those who did not comply and to hire their replacements. 5 Those
directives notwithstanding, the mass actions continued into the week, with more teachers joining in the
days that followed. In its issue of September 19, 1990, the newspaper Manila Standard reported that the
day previous, the respondent Secretary of Education had relieved 292 teachers who did not return to their
classes. The next day, however, another daily, Newsday, reported that the Secretary had revoked its
dismissal order and instead placed 56 of the 292 teachers under preventive suspension, despite which
the protesters' numbers had swelled to 4,000. 6

On the record, what did happen was that, based on reports submitted by the principals of the various
public schools in Metro Manila, the respondent Secretary of Education had filed motu
proprio administrative complaints against the teachers who had taken part in the mass actions and
defied the return-to-work order on assorted charges like grave misconduct, gross neglect of duty,
gross violation of the Civil Service Law, absence without official leave, etc., and placed them under
90-day preventive suspension. The respondents were served copies of the charge sheets and given
five (5) days to submit answer or explanation. Later, on October 8, 1990, the respondent Secretary
constituted an investigating committee of four (4) to determine and take the appropriate course of
action on the formal charges and designated the special prosecutors on detail with the DECS to
handle their prosecution during the formal hearings. 7
On October 11, 1990, the respondent Secretary of Education rendered the first of his now
questioned decisions on the administrative complaints. In Case No. DECS 90-002, he found twenty
(20) respondent teachers guilty of the charges preferred against them and dismissed them from
office, effective immediately. 8 In the other investigations that followed and as of December 3, 1990, 658
teachers were dismissed, 40 were suspended for one (1) year, 33 for nine (9) months, and 122 for six (6)
months; 398 were exonerated. 9
Earlier, on September 19, 1990, the petitioners in G.R. No. 95445 had filed with the Regional Trial
Court of Manila Branch 18, a petition 10 for prohibition, declaratory relief and preliminary mandatory
injunction to restrain the implementation of the return-to-work order of September 17, 1990 and the
suspension or dismissal of any teacher pursuant thereto and to declare said order null and void.
Issuance ex-parte of a temporary restraining order was sought, but seeing no compelling reason therefor,
the Regional Trial Court instead set the application for preliminary injunction for hearing, and heard the
same, on September 24, 1990. Thereafter and following the submission of memorandums by the parties,
said Court rendered judgment declaring the assailed return-to-work order valid and binding, and
dismissing the petition for lack of merit. 11
Review of said judgment is sought in G. R. No. 95445.
G.R. No. 95590 is a parallel original proceeding for prohibition, mandamus and certiorari grounded
on the same state of facts and instituted for substantially the same purpose i.e., the invalidation of
the return-to-work order of the respondent Secretary of Education and all orders of suspension
and/or dismissal thereafter issued by said respondent against the teachers who had taken part in the
mass actions of September 17, 1990 and the days that followed.
Both cases were ordered consolidated by Resolution issued on October 25, 1990, 12 and separate
comments were filed by the Solicitor General on behalf of the public respondents, in G.R. No. 95445 on
October 31, 1990, and in G.R. No. 95590 on December 5, 1990. 13 On November 20, 1990 the parties
were heard in oral argument on the petitioners' united pleas for a temporary restraining order/mandatory
injunction to restore the status quo ante and enjoin the public respondents from continuing with the
issuance of suspension orders and proceeding with the administrative cases against the teachers
involved in the mass actions.
Said pleas were denied by the Court in its Resolution of December 18, 1990, 14 and a motion for
reconsideration filed by the petitioners in G.R. No. 95590 was likewise denied.

In two separate but identically-worded motions filed on their behalf by Atty. Froilan M.
Bacungan, 15 the following persons, to wit: Florita D. Guazon, Elisea G. Lazo, Gonzala G. Sioson,
Esperanza Valero, Nenita Pangilinan, Ramon David, Aurora Bosi, Encarnita David, Socorro Sentin,
Crispulo Santos, Rodriguez Bagana, Rodolfo D. Bacsal, Ruben Bersamina, Rodolfo Arroyo, Irene Gadil,
Rebecca Roldan, Rosita Samson, Priscilla Avendia, Arturo Cabuhat, Rosalinda Caoili, Angelina Corpuz,
Purisima Lena, Elsie Somera, Dedaica Jusay, Teresita Partoza, Gloria Salvador, Catherine San Agustin,
Nestor Aguirre, Lorenzo Real, Celia Ronquillo, Vicente Carranza, Jessie Villanueva, Yolanda Alura, Clara
Alvarez, Danilo Llamas, Ladera Panita Myrna, Sena, Zenaida Ligon, Daisy S. Conti, Danilo Caballes,
Susan Maragat, Roberto Manlangit and Elizabeth T. Aguirre, seek leave to withdraw as parties in G.R.
No. 95590. These movants claim that they are such parties although not individually so named in the
petition in said case, being among those referred to in its title as "other similarly situated public school
teachers too numerous to be impleaded," who had been administratively charged, then preventively
suspended and/or dismissed in the wake of the mass actions of September 1990. They assert that since
this Court is not a trier of facts, they have opted to appeal the questioned decisions or actuations of the
respondent Secretary of Education to the Civil Service Commission where they believe they will have "...
all the opportunity to introduce evidence on how (Secretary) Cario violated their constitutional rights to
due process of law ... security of tenure and ... peaceably to assemble and petition the government for
redress of grievances ...."
An opposition to the first motion was filed 16 which, briefly, contended that, as this Court had already
found that the petitioners had gone on an unlawful strike and that public respondent Cario's acts
were prima facie lawful, the motion was either an attempt at forum-shopping or meant to avoid the
"inevitable outcome" of issues already pending final determination by the Court.
The Court's Resolution of December 18, 1990, supra, denying the petitioners' plea for restoration of
the status quo ante and to restrain/enjoin further suspensions of, and the initiation or continuation of,
administrative proceedings against the teachers involved, is based on the following postulates:
(1) the undenied indeed, the pleaded and admitted fact that about 800 teachers,
among them the individual petitioners and other unnamed but "similarly situated"
members of the petitioning associations in both cases, unauthorizedly absented
themselves from their classes on a regular schoolday, September 17, 1990, in order
to participate in a "mass action" to dramatize their grievances concerning, in the
main, the alleged failure of the public authorities, either to implement at all or to
implement in a just and correct manner, certain laws and measures intended to
benefit them materially;
(2) the fact, too, that in the days that followed, more mass actions for the same
purpose were undertaken, notwithstanding a return-to-work order issued by the
respondent Secretary of Education; more teachers joined the so-called "peaceful
assemblies" on September 18, 1990 and the number rising to 4,000 on September
19, 1990; 17
(3) that from the pleaded and admitted facts, these "mass actions" were to all intents and
purposes a strike; they constituted a concerted and unauthorized stoppage of, or
absence from, work which it was the teachers' duty to perform, undertaken for essentially
economic reasons;

(4) that this court had already definitively ruled that employees in the public (civil)
service, unlike those in the private sector, do not have the right to strike, although
guaranteed the right to self-organization, to petition Congress for the betterment of
employment terms and conditions and to negotiate with appropriate government
agencies for the improvement of such working conditions as are not fixed by law; 18
(5) that upon the foregoing premises, it was prima facie lawful and within his statutory
authority for the respondent Secretary of Education to take the actions complained of, to
wit: issue a return-to-work order, prefer administrative charges against, and place under
preventive suspension, those who failed to comply with said order, and dismiss from the
service those who failed to answer or controvert the charges; 19

The Court has not since been presented with any consideration of law or established fact that would
impair the validity of these postulates or preclude continued reliance thereon for the purpose of
resolving the present petitions on their merits.
The underlying issue here is due process; not whether the petitioners have a right to strike, which it
is clear they do not, however justifiable their reasons, nor whether or not there was in fact such a
strike, it being equally evident from the pleadings that there was, and there being no dispute about
this. What therefore, is brought before the Court is the question of whether or not any rights of the
petitioners under the due process clause of the Constitution as it applies to administrative
proceedings were violated in the initiation, conduct, or disposition of the investigations complained
of.
Indeed, what the petitioners in G.R. No. 95590 proclaim about denial of due process being their
"paramount complaint" ... "central to their prayer for interlocutory relief' 20 could as well be said of the
merits of their main cause as of their plea for a restraining order pendente lite or a preliminary injunction.
There are, however, insuperable obstacles to the Court's taking up that issue and resolving it in
these cases. Said issue is not ripe for adjudication by this Court in the exercise of its review
jurisdiction; and this, for the obvious reason that it is one of fact. The petitions and subsequent
pleadings of the petitioners allege facts and circumstances which, it is claimed, show denial of due
process, citing as supposedly "representative samples" 21among others: (a) that teachers were
dismissed on the sole basis of unsworn reports of their principals and without evidence of their alleged
failure to obey the return-to-work order; (b) that the charge sheets failed to specify the particular charges
or offenses allegedly committed; (c) that some teachers were not furnished sworn complaints, and others
were suspended without any formal charges; (d) that teachers who attempted to return within a
reasonable time after notice of the return-to-work order were not accepted back; and similar allegations.
These are however denied and disputed by the public respondents, who set forth their own version,
initially in their separate Comments in both cases and, later and in greater detail, in their
Consolidated Memorandum of December 3, 1990, supra, from which the following passages are
quoted:
(6) Petitioners in G.R. No. 95545 and G.R. No. 95590 admit engaging in a
strike (referred by semantic interplay as "concerted activity" or "mass

action") directed against public respondent Cariobeginning September 17, 1990,

MPSTA Petition, pp. 3, 9; ACT Petition, pp. 1516).
To avoid the disruption of classes, public respondent Cario, also on September 17,
1990, issued a 'return to work order' reminding striking workers that in law, they
cannot engage in strike and warning them that dismissal proceedings will be
instituted against them if they do not return to work with 24 hours from their
walkout (MPSTA Petition, p. 4; ACT Petition, p. 15) and a memorandum to DECS
officials instructing them to notify the striking teachers to return to work within 24
hours from their walkout and to initiate dismissal proceedings against those who defy
the return to work order as well as to hire temporary replacements, MPSTA Petition,
p. 4; ACT Petition, pp. 15-16).
The striking teachers who did not heed the return-to-work order were administratively
charged and preventively suspended for ninety days for grave misconduct, gross
neglect of duty, insubordination, refusal to perform official duty, absence without
leave beginning September 17, 1990 and other violations of Civil Service Law, rules
and regulations. All of striking teachers were served with the suspension orders and
the change sheets notifying them of the charges and giving them five (5) days from
receipt of the charge sheets within which to file their respective answers.
With the filing of the administrative complaints and the receipt of the answers of
some of the teachers involved, public respondent Carino on October 8, 1990 issued
a Memorandum forming an Investigation Committee composed of Atty, Reno
Capinpin of DECS Administrative Services as Chairman Dr. Alberto Mendoza,
representing the Division Supervisors, Atty. Evangeline de Castro, representing the
City Superintendent of Schools of Manila, and Atty. Isaias Meleto representing the
National PPSTA Organization, as members. Copy of the aforesaid Memorandum is
hereto attached as Annex "I."
The committee was authorized to meet everyday, even as Special Prosecutors from
the Department of justice on detail with the DECS were designated to handle the
prosecution during the formal hearings. (Ibid.)
Petitioners in GR No. 95545' and 'G.R. No. 95590' admit having received the charge
sheets and notices of preventive suspension wherein they were given five days from
receipt of the charges within which to file their answers (MPSTA Petition, p. 4-1 ACT
Petition, p. 16, Annexes x , to , AA ).
xxx xxx xxx
... Many striking teachers received their preventive suspension orders and the
charge sheets from their respective principals when they visited their schools. Many
refused to receive and sign receipt therefor; others tore up the preventive
suspension orders and charge sheets in front of their principals. Instead, they took

the occasion to belittle and insult the substitute teachers who took over their
classrooms temporarily.
The striking teachers were given a period of five days to file their Answers in line with
Sec. 8, Rule III of Rules on Administrative Disciplinary Cases in CSC Memorandum
Circular No. 46, s. 1989. The motion for extension of time to file Answer was denied
by DECS Task Force because it was dilatory the alleged reason being that Atty.
Fabros is handling 2,000 cases of teachers. The DECS was constrained by Sec.
38(d) of P.D. 807 and Sec. 8 of the Memorandum Circular mentioned which mandate
that administrative cases must be decided within 30 days from the filing of the
charges. Another reason was that many refused to receive the notice of charges.
Also, to delay the resolution of the cases was to their disadvantage.
Moreover, another reason proferred was that the Regional Trial Court (RTC) of
Manila still had to act on the petition before it. However, the Motion was filed AFTER
the RTC Manila had already dismissed the Petition.
Nevertheless, answers to the administrative complaints started pouring in at the
DECS, as prepared personally by the striking teachers or by their lawyers.
After initial assessments of the reports coming in from the principals of the schools
concerned and the answers of the striking teachers, the DECS Special Task Force
prepared on October 9, 1990 and submitted to respondent Secretary Carino the
Guidelines and Criteria as to the nature of the evidence to be assessed and the
corresponding penalty to be imposed against the striking teachers, which was
approved by respondent Secretary Carino on the same day. A copy of the aforesaid
Guidelines and Criteria is hereto attached as Annex "2." Thereafter, the DECS
Special Task Force proceeded with its task of investigating the cases against the
striking teachers.
Those who refused to sign the DECS return-to-work order, the preventive suspension
orders and the charge sheets, some even tearing up the documents presented to
them by their principals were considered by the DECS Special Task Force as having
waived their right to be heard; their cases had to be resolved on the basis of the
records. Nevertheless, the DECS Special Task Force summoned the principals
concerned, who then testified under oath confirming their reports on the absences of
the striking teachers. Some clarificatory questions were asked of them on the
manner of the service of the DECS orders and the situation obtaining in their
schools.
For those who answered the charge sheets, the DECS Special Task Force set the
administrative cases for hearing. Many of the striking teachers refused to appear at
the hearings but preferred to submit their case on the basis of their answers.
With regard to those who attended the hearings, each of the absent or striking
teachers was investigated and asked questions under oath on their answers and the

reasons for their absences and/or joining the teachers' strike. Some teachers
reiterated their answers to the charge sheets, either giving justifiable reasons for their
absences on the days mentioned or maintaining their stubborn stand that they have
all the right to absent themselves from classes in the exercise of their constitutional
right to join mass action to demand from the government what are supposedly due
them. Still the DECS Special Task Force was not satisfied with their written answers
and explanation during the hearings. The principals of the striking teachers were
summoned and they confirmed under oath their reports of absences and/or on
teachers joining the strike.
After having conducted fully their investigations, the DECS Special Task Force
submitted in series their investigation reports and recommendation for each category
of striking teachers to respondent Secretary Carino. The investigation reports,
together with their supporting documents, submitted by the DECS Special Task
Force indicated clearly the manner and conduct of the administrative hearings, the
nature and weight of the evidence adduced, and the correspondingly penalty or
exoneration recommended.
On the bases of the investigation reports and recommendations of the DECS Special
Task Force, and after evaluating the reports and its documents attached, respondent
Secretary Carino promulgated the decisions either for exoneration, suspension or
dismissal. Copies of the DECS decisions of exoneration, suspension or dismissal
were forwarded to the principals of the striking teachers concerned. Those
exonerated were allowed to resume their duties and received their back salaries.
Some of the teachers either suspended or dismissed have already received the
copies of the decisions, either personally or through mail.
xxx xxx xxx 22
This copious citation is made, not to suggest that the Court finds what is stated therein to be true
and the contrary averments of the petitions to be false, but precisely to stress that the facts upon
which the question of alleged denial of due process would turn are still in issue, actively
controverted, hence not yet established.
It is not for the Court, which is not a trier of facts, as the petitioners who would now withdraw
correctly put it, to make the crucial determination of what in truth transpired concerning the disputed
incidents. Even if that were within its competence, it would be at best a monumental task. At any
rate, the petitioners cannot-as it seems they have done lump together into what amounts to a class
action hundreds of individual cases, each with its own peculiar set of facts, and expect a ruling that
would justly and correctly resolve each and everyone of those cases upon little more than general
allegations, frontally disputed as already pointed out, of incidents supposedly "representative" of
each case or group of cases.
This case illustrates the error of precipitate recourse to the Supreme Court, especially when
numerous parties desparately situated as far as the facts are concerned gather under the umbrella
of a common plea, and generalization of what should be alleged with particularity becomes

unavoidable. The petitioners' obvious remedy was NOT to halt the administrative proceedings but,
on the contrary, to take part, assert and vindicate their rights therein, see those proceedings through
to judgment and if adjudged guilty, appeal to the Civil Service Commission; or if, pending said
proceedings, immediate recourse to judicial authority was believed necessary because the
respondent Secretary or those acting under him or on his instructions were acting without or in
excess of jurisdiction, or with grave abuse of discretion, to apply, not directly to the Supreme Court,
but to the Regional Trial Court, where there would be an opportunity to prove the relevant facts
warranting corrective relief.
Parties-litigant are duty bound to observe the proper order of recourse through the judicial hierarchy;
they by-pass the rungs of the judicial ladder at the peril of their own causes. 23 This Court is a court
of last resort. Its review jurisdiction is limited to resolving questions of law where there is no dispute of the
facts or the facts have already been determined by lower tribunals, except only in criminal actions where
capital penalties have been imposed.
WHEREFORE, both petitioners are DISMISSED, without prejudice to any appeals, if still timely, that
the individual petitioners may take to the Civil Service Commission on the matters complained of.
The motions to withdraw,supra, are merely NOTED, this disposition rendering any express ruling
thereon unnecessary. No pronouncement as to costs.
SO ORDERED.
Fernan, C.J. (Chairman), Melencio-Herrera, Gancayco, Bidin, Grio-Aquino, Medialdea, Regalado
and Davide, Jr., JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., dissenting:

In dissenting from the majority opinion, I draw certain conclusions from the records which I feel
should guide any adjudication of the issues in these petitions.
My first conclusion refers to the denial of basic rights of an indispensably essential segment of our
society the teachers who educate our children.
The second refers to the cold hearted punishment which we allow to be inflicted upon our poor
school teachers. By skirting the fundamental issue involved, the Court is denying the petitioners
fairness, substantive due process, and simple humanity. The so-called investigations which led to
the initial dismissals were a farce. Instead of 90 day preventive suspensions, the Department of
Education, Culture, and Sports (DECS) immediately imposed punitive dismissals with no semblance

of rudimentary due process. All other civil service employees undergoing investigation are reinstated
after ninety days. Our teachers have been out of work for more than ten (10) months without income
while still undergoing administrative investigation. The suspension is indefinite if not permanent.
Patience has its limits. There are times when even the most constant and dedicated public servants
must given vent to their feelings and express their grievances at an unfeeling and inept bureaucracy
which seems to be incapable of attending to their officials needs. Professional agitators may have
infiltrated the teachers and muddled their demands with such outlandish calls as the closure of
foreign military bases, a cap on the payments of foreign debts and other issues not pressingly
relevant to teachers. But the basic demands are legitimate and few.
Teachers need a decent living wage, one in keeping with the dignity and worth of their profession.
Not only are their salaries unbelievably low but payment is often unreasonably delayed. When the
national government gives a little increase, a corresponding amount is reduced from the city share.
Teachers have to beg for allowances to be restored. The latest examples are the PERA adjustments.
As of July 12, 1991, most employees of the government had received and spent their PERA
allowances. Our public school teachers were still waiting. whatever the payment signifies salary,
bonus, allowance and even retirement or death benefits the last one to receive what all government
employees are entitled to, is the public school teacher. It is no small wonder that thousands of school
teachers swallow their dignity and accept employment as domestic servants overseas. I am not
aware of any government program which seeks to reverse the new definition of "Filipina" as a
domestic servant of foreigners whose education is often lower than that of their maids. Neither am I
aware of any determined effort to see to it that school teachers always get their salaries, allowances,
and benefits on time.
I mention the unconcern because it is what forced the petitioners to engage in mass concerted
action.
We agree that employees in the civil service may not engage in strikes, walk-outs and temporary
work stoppages like workers in the private sector. (Social Security System Employees Association v.
Court of Appeals, 175 SCRA 686, 698 [1989]). Employment in the Government is governed by law.
Government workers cannot use the same weapons employed by workers in the private sector to
secure concessions from their employers. The terms and conditions of employment are effected
through statutes and administrative rules and regulations, not through collective bargaining
agreements. (Alliance of Government Workers, et al. v. Minister of Labor and Employment, 124
SCRA 1, 13 [1983]).
The above rulings remain good law.
In the first place, if this Court uses the word "strike" to describe what the petitioners staged, it tends
to unfairly color and pre-judge their case. "Strike" becomes a pejorative epithet that leads to a
certain result not so much because of facts but because of its semantic connotations. The teachers
were in the main not asking for terms and conditions greater than those accorded by law. Their basic
demand was to be given on time what the law already provides for them. It was only after certain
elements penetrated their ranks and in the heat of the peaceful assembly that such demands as
closure of military bases and laws increasing salaries formed part of the leaders' statements. The

concerted action was more of a peaceful assembly, an exercise of speech by a gathering, not a
strike.
In the second place, when Government is deaf, when bureaucracy denies to our teachers the timely
payment of the pittances provided by law, should any ban still be enforced? And enforced in a
peremptory and oppressive manner? Should not the most basic freedom of speech and assembly in
these particular cases outweigh all considerations which ban strikes by civil service employees?
We agree with Justice Cardozo in Palko v. Connecticut, 302 US 319 [1937] that freedom of speech
is the matrix, the indispensable condition of nearly every other form of freedom.
We have cited with approbation Justice Brennan's stressing a "profound national commitment to the
principle that debate on public issues should be uninhibited, robust and wide open and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials". (New York Times, Co. v. Sullivan, 376 US 254 [1964])
Teachers have legitimate and pressing grievances. When Government consistently fails to act on
these grievances, the teachers have a right to speak in an effective manner. For speech to be
effective, it must be forceful enough to make the intended recipients listen.
I view the issue in these cases as more transcendent than the simple one of whether or not public
school teachers may go on strike. To me, the issue is the freedom to effectively speak. When the
members of a noble profession are demeaned by low salaries and inattention to their needs, surely
their freedom to speak in a manner and at a time as is most effective far outweighs conventional
adherence to orthodox civil service rules on proper conduct and correct behavior.
My other point has to do with an anomalous investigation procedure and considering the nature of
the offense, what is tantamount to cruel punishment.
I gather from the records and the majority opinion that the cases of individual teachers are still being
investigated and may be the subject of appeals to the Civil Service Commission.
If that is so, I cannot understand why the petitioners remain suspended up to the present. They
should have been reinstated after 90 days of preventive suspension. It is axiomatic that civil service
employees and even elected officials cannot be preventively suspended for more than 90 days
(Section 42, P.D. 807; Deloso v. Sandiganbayan, 173 SCRA 409 [1989]; Doromal v. Sandiganbayan,
177 SCRA 354 [1989]).
If the suspension is preventive, it has lasted too long. If punitive, it is illegal and violative of due
process.
There are anywhere from 800 to 2,000 teachers involved perhaps even more, once the unwieldy
procedures of DECS can arrive at accurate figures.
On October 8, 1990, the Department Secretary constituted an investigating committee of four,
repeat, four members to act on the formal charges.

Three days later, on October 11, 1990, the DECS found 20 teachers guilty and dismissed them. On
December 3, 1990, 658 teachers were dismissed, 40 were suspended for one year, 33 for 9 months,
and 122 for six months. There were 398 exonerations. I understand there were scores who had to
hurriedly look for medical certificates that they were "sick" while hundreds were urged to cringe and
grovel with humiliating mea culpas.
Even if the investigating committee or committees were staffed by supermen and superwomen, it is
inconceivable that 658 capital sentences of dismissal could be made in so short a time. Any officer
who has conducted an honest to goodness administrative investigation cannot but conclude that the
procedures which were followed violated the norms of fair play and due process. The decisions were
the products of prejudgment based on perfunctory paper investigations. Surely our public school
teachers deserve better treatment.
If subsequent to the sentences of dismissal, the teachers were properly served with summons, given
time to secure the services of competent counsel, allowed to defend themselves and cross-examine
witnesses against them, punished on the basis of reasoned decisions stating the facts and the law,
and otherwise given their rights to due process, the initial illegal actions should be set aside and the
teachers reinstated in the meantime.
Considering the circumstances which led the teachers to engage in mass action, the penalty of
dismissal is too grave. It is punishment which is cruel.
The officers and men of the Armed Forces who started a coup at the Manila Hotel were punished by
being made to do a few push-ups. The coup attempt in December, 1989 was almost successful. And
yet, only the officers are meted significant punishment. The enlisted men are readily pardoned. I see
no reason why similar treatment cannot be given our public school teachers. Their only offense was
to speak out in an effective manner against studied neglect.
Even if all requirements of due process in administrative investigations are followed and the
evidence points unerringly to guilt, a public school teacher should not be meted out a penalty
harsher than a few months suspension. In Labor Law, dismissals are imposed only against a handful
of leaders who committed acts of violence or instigated illegal strikes. (De Ocampo, Jr. v. NLRC, 186
SCRA 360 [1990]) As earlier stated, the word "strike" under Labor Law should not be used in
pejoration to denigrate a peaceful assembly.
I repeat that equitable considerations call for compassion. Public school teachers are the most hardworking, uncomplaining, easy to satisfy, and dutiful segment of our public service. They are also the
most underpaid professionals with a take home pay of a little over one hundred pesos a day, ** which is
the income of an unskilled laborer. They deserve justice and compassion.

CONSIDERING THE FOREGOING, I vote to GRANT the petition, to set aside the questioned orders
of the Secretary of Education, Culture, and Sports, to order reinstatement of the petitioners, and to
direct the payments of their salaries and backpay.
CRUZ, J., dissenting:

It appears to me from my reading of the ponencia and the several dissents that the petitioners have
established aprima facie case of arbitrariness on the part of the government that would justify direct
and immediate action from the Court as an exception to the regular procedure.
While I do agree that there are many factual matters to be ascertained and that this task belongs in
the first instance to the administrative authorities, I feel that precisely because of the number and
proximity of these issues, let alone the hundreds if not thousands of teachers involved, this Court
must grant the petitioners at least temporary relief pending the termination of the proceedings below.
These proceedings have been dragging on for months and will continue even longer, perhaps for
years. In the meantime, the petitioning teachers are out in the cold, without employment or income
and with only their hope, grown forlorn, I am afraid, in the justice of this Court.
I can understand Justice Narvasa's concern over the disarrangement of the well-ordered system of
judicial review and the resultant heavy burden that will be laid on the Court. However, I do not
propose that we assume the role of the trier of facts and encumber ourselves with the task of
deciding the hundreds of administrative cases being heard (or better heard) below by the DECS or
the Civil Service Commission. I am not prepared at this point to say that the Court should simply
pronounce the dismissal of the petitioners as arbitrary and to order their reinstatement with back
salaries. I would instead join Justice Padilla's suggestion that the teachers be ordered reinstated in
the meantime, without prejudice to their investigation in accordance with the prescribed procedure.
I am not unaware of the decision of the Court in the SSS case prohibiting members of the Civil
Service from engaging in strikes and similar acts. I submit, however that this ruling, assuming it to be
correct, is no license for the authorities to treat their employees with disdain and to flatly ignore their
legitimate complaints, with the expressed threat that they would be removed if they should be so
rash as to insist on their demands. In my view, that is what Secretary Carino has done.
Government workers, whatever their category or status, have as much right as any person in the
land to voice their protests against what they believe to be a violation of their interests. The fact that
they belong to the Civil Service has not deprived them of their freedom of expression, which is
guaranteed to every individual in this country, including even the alien. It would be ridiculous to even
suggest that by accepting public employment, the members of the Civil Service automatically and
impliedly renounce this basic liberty. This freedom can at best be regulated only but never
completely withdrawn.
When their first feeble complaints were not acted upon, the teachers had a light to speak loudly and
more insistently, and to show that their protests did not come from only a disgruntled few but from a
considerable number of them. They did this through their mass action in hopes that this way they
would be better heard and ultimately heeded. They were not. Instead, they were threatened with
dismissal and some were in fact dismissed. In effect, they were told to shut up or face the
consequences. I regard the return- to-work order as merely secondary and incidental, for the primary
purpose of the DECS authorities was to break up the demonstration and muzzle the demonstrators.
unquestionably, these individual teachers could not speak as effectively in their controlled
classrooms. What the Secretary sought was to deny the teachers the light to assemble and petition
the government for redress of their grievances on the sanctimonious excuse that they were needed
by their students.

I for one believe that the prohibition of members of the Civil Service from striking which, significantly,
is not found in the Constitution requires a careful re-examination. It is so easy, as the present case
has demonstrated, to use it as a bludgeon to silence complaint, however legitimate. Complaint is a
weapon of the worker, and it is more effective if manifested not by him alone but with his co-owners.
Under the present ruling, the workers in the private sector may complain collectively and if
necessary declare a strike to enforce their demands, but this recourse is denied the public
employees even if their demands are no less valid. In this sense, the freedom of expression of the
civil servant is diminished and his right to improve the conditions of his employment is
correspondingly reduced, and order because he belongs to the public sector.
It is so easy to say that the education of the youth should not be disrupted but we should not forget
that the protection of freedom of expression is no less important. Indeed, the quality of education
would deteriorate in an atmosphere of repression, when the very teachers who are supposed to
provide an example of courage and self-assertiveness to their pupils can speak only in timorous
whispers. The classrooms should be an incubator of freedom, not fear.
PARAS, J., concurring
I concur. Public school teachers have the right to peaceably assemble for redress of grievances but
NOT during class hours, for then this would be a strike, which is illegal for them.
FELICIANO, J., dissenting:
With regret, I find myself unable to concur in the majority opinion. I would associate myself with the
reasoning and conclusions (though not necessarily with all the adjectives and adverbs) of the
dissenting opinion of Gutierrez, J. as well as the conclusions reached by Padilla and Sarmiento, JJ.,
in their respective dissenting opinion.
Here I merely wish to underscore the constitutional issue which appears to me to be raised in the
instant case by the contraposition of, on the one hand, the prohibition against employees in the
public sector going on strikes and, on the other hand, the rights of free speech and of assembly and
petition of those same employees. InSocial Security System Employees Association (SSSEA) v.
Court of Appeals (175 SCRA 686 [1989]), the Court, through Cortes, J., pointed out that the
prohibition against strikes in the public sector is presently founded upon Memorandum Circular No.
6, Series of 1987, of the Civil Service Commission dated 21 April 1987, and indirectly and impliedly,
upon Executive Order No. 180 dated 1 June 1987 which provides guidelines for the exercise of the
constitutional right of government employees to organize themselves. The prohibition is not, in other
words, even statutory in nature but merely administrative or regulatory in character and the Court
took explicit note of the absence of legislation either prohibiting or allowing strikes, or even merely
regulating the exercise of a right to strike by government employees. The policy embodied in that
prohibition is admittedly a legitimate and important one: to prevent or minimize the disruption and
paralysis of the operations of government, especially the essential services rendered by it to society
at large. At the same time, that the rights of free speech and of peaceful assembly and petition for
redress of grievances are at least equally important and critical for the maintenance of a free, open
and democratic polity, is not disputed by any one.

It seems to me that the majority opinion has considered the administrative prohibition of strikes in the
government sector as an absolute given. There appears no visible evidence of an effort to explore
the scope and limits of applicability of that prohibition. It would seem reasonably clear, however, that
we cannot semper et ubique give exclusive relevance to that simple prohibition, that there are at
stake here also the competing public values and interests implicit in free speech and peaceable
assembly and petition, and that those rights too cannot be treated as absolutes without any regard to
the necessities of orderly and efficient governance of a developing country with obviously finite
resources. The requirements of both desiderata must be balanced, consciously, with realism and
sensitivity, in particular situations such as that presented in the instant case and points or lines of
equilibrium drawn, however tentatively. 1
My concern, and this is submitted with great respect, is that in the instant case, the Court has not
sufficiently engaged in the required balancing operation and had instead acted and spoken as if the
order societal interest involved is that of the government in the maintenance of its operations and
activities. The teaching of school children is obviously important, indeed fundamental. Some of the
leaders of some of the teachers' organizations may be non-teachers and possibly professional
agitators. But the refusal to meet with and discuss the pleas and grievances of the genuine public
school teachers and the summary and mass disciplinary sanctions with which the respondent DECS
officials have responded may produce, and appear in fact to have produced, the very stoppage and
prolonged disruption which Memorandum Circular No. 6 seeks to avoid.
There is, of course, no facile formula by which the competing interests may be adjusted and
balanced, one with the other, in very specific contexts like the one here existing. But adjustments
and compromise there must be. It seems to me very difficult to suppose that government service
may be rendered only at the cost of foregoing the exercise (or, as Gutierrez, J. puts it, the effective
exercise) of the rights of free speech and assembly and petition. To require civil servants in general,
and public school teachers in particular, to leave at home their constitutional rights when they go to
work, is to exact mindless conformity and ductility, no matter how immediate serious and pervasive
the problems and grievances may be, as the cost of serving the Republic. That those problems and
grievances may at bottom be economic rather than political certainly does not change the legal
equation. Such an exaction is not to be counternanced in our constitutional system: it imposes
oppressive costs upon the individual human spirit and intolerable burdens on national development. I
vote to GRANT the Petitions.
PADILLA, J., dissenting:
The majority opinion has compressed the issue to whether there has been a denial of due process to
the teachers, disregarding altogether the constitutional right to peaceably assemble and petition the
government for redress of grievances (Art. III, par. 4 Bill of Rights of the 1987 Constitution). But even
limiting oneself to the issue of denial of due process, the majority opinion asserts that it is not ripe for
adjudication by the Court in the exercise of its review jurisdiction because the issue involves
questions of fact. But why then does the majority opinion proceed to declare/recognize the mass
action of the teachers as illegal? Does this not constitute a categorical finding of fact leaving the
dismissed or suspended teachers without any other recourse?

Due process prior to termination or suspension consisted of, according to the majority opinion, the
following
On the record, what did happen was that, based on reports submitted by the
principals of the various public schools in Metro Manila, the respondent Secretary of
Education had filed motu propio administrative complaints against the teachers who
had taken part in the mass actions and defied the return-to-work order on assorted
charges like grave misconduct, gross neglect of duty, gross violation of the Civil
Service Law, absence without official leave, etc., and placed then under 90-day
preventive suspension. The respondents were served copies of the charge sheets
and given five (5) days to submit answer or explanation. Later, on October 8, 1990,
the respondent Secretary constituted an investigating committee of four (4) to
determine and take the appropriate course of action on the formal charges and
designated the special prosecutors on detail with the DECS to handle their
prosecution during the formal hearings.
On October 11, 1990, the respondent Secretary of Education rendered the first of his
now questioned decisions on the administrative complaints. In Case No. DECS 90002, he found twenty (20) respondent teachers guilty of the charges proferred
against them and dismissed them from office, effective immediately. In the other
investigations that followed and as of December 3, 1990, 658 teachers were
dismissed, 40 were suspended for one (1) year, 33 for nine (9) months, and 122 for
six (6) months; 398 were exonerated. (pp. 4-5)
It is to be noted that the above proceedings took place in a charged atmosphere. Objective and
dispassionate appraisal of the merits of each case could hardly be expected in such a setting.
Whenever a governmental body acts so as to injure an individual, the Constitution
requires that the act be consonant with due process of law. The minimum procedural
requirements necessary to satisfy due process depend upon the circumstances and
the interests of the parties involved. As stated by Mr. Justice Frankfurter concurring in
Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 163:
Whether the ex parte procedure to which the petitioners were
subjected duly observed 'the rudiments of fair play' ... cannot ... be
tested by mere generalities or sentiments abstractly appealing. The
precise nature of the interest that has been adversely affected, the
manner in which this was done, the reasons for doing it, the available
alternatives to the procedure that was followed, the protection implicit
in the office of the functionary whose conduct is challenged, the
balance of hurt complained of and good accomplished these are
some of the considerations that must enter into the judicial
judgment. 1 (Emphasis supplied)
The nature of the hearings should vary depending upon the circumstances of the particular
case. 2 The constitutional guarantee of due process means concurrence of substantive and procedural

due process. The narration in the majority opinion speaks only of the latter, completely disregarding
the substance of petitioners' claims. It would appear that dismissals and suspensions of the teachers
were meted out de rigor and in rapid succession, evidently in retaliation for airing their grievances against
the government. It is not to suggest an elaborate procedural mechanism, but only fidelity to the minimum
safeguards untainted by arbitrariness and undue haste.

In my view, the public school teachers are the silent and unsung heroes of our society. They deserve
more compassion, if not more understanding, when they break their silence to plead and press for
benefits they perceive have been unjustly denied them. For it can not be overlooked that public
school teachers are terribly underpaid when related to the responsibilities they discharge in moulding
the character of our youth. The government should itself undergo an introspective re-arraignment of
its priorities and values in approaching the problem of how to treat the teachers with fairness and
justice.
Denial of due process is an issue which is ripe for adjudication right in this Court, and in this case.
The petition should be granted and the cases remanded to the DECS for proper redetermination of
the culpability of each teacher, this time, in an atmosphere compatible with due process. Meanwhile,
they should be reinstated pending the outcome of such proceedings, including a recourse by appeal
to the Civil Service Commission.
SARMIENTO, J., dissenting:
Like Justice Gutierrez; I have difficulty concurring with the majority.
What I indeed find apparent is that a thousand or so of our countrymen will be out of work because
the Supreme Court can not supposedly try facts.
The duty of the Court, as the Constitution expresses it, is, among other things:
... to determine whether or not there has been a grave abuse of discretion ... on the part of any
branch or instrumentality of the Government. 1
It is a duty, so I submit, from which the Court can not shirk on the handy excuse that it is being made
to try facts. I submit that it is a duty that often requires, precisely, a factual inquiry.
If we are being asked to try facts, it is not the first time we would have been asked, and complied.
In Lansang v. Garcia, 2 we did satisfy ourselves that the facts warranted an act of the Executive. We did
go to great lengths to sift evidence.
The nagging fact (no pun intended) is that apparently, we are not truly talking about "facts" here. The
nagging fact, as Justice Gutierrez points out, is that the petitioners have been under suspension for
the last ten months, and the sole question, apparently, is whether or not in the midst of this fact,
Secretary Carino acted arbitrarily.
I do not think that the majority has understood enough the gravity of teachers' condition. As Justice
Gutierrez points out our teachers have long been the most neglected, yet the most forebearing,

members of the public service. "[I]t [the Government's lack of concern] is what forced the
petitioners," according to Justice Gutierrez, "to engage in mass concerted action. 3 I would like to add
that maybe, the Government had it coming.
As the majority avers, these cases are not all about whether the petitioners could have validly gone
on a strike that question has long been settled by this Court-but rather, whether or not they have
been given due process as a result of investigations arising from the strike. I submit that due process
is a perfectly legitimate issue to debate in Court an issue involving the mentors of the nation's
children no less.
I also submit that it is to trivialize the noblest profession, if it is not to trivialize the serious crisis
confronting the state of Philippine education, to dismiss these complaints as if it involved simple
personalities demanding money. If Carino acted as if it were that, and as if it were a matter alone of
"they struck so I fired them" I submit that we ought to know better. The State assures education for
all. 4 It also gives priority to education, as an indispensable process in nation-building. 5 There is no harm
in listening to our educators. I therefore vote to grant both petitions.

Separate Opinions
GUTIERREZ, JR., J., dissenting:
In dissenting from the majority opinion, I draw certain conclusions from the records which I feel
should guide any adjudication of the issues in these petitions.
My first conclusion refers to the denial of basic rights of an indispensably essential segment of our
society the teachers who educate our children.
The second refers to the cold hearted punishment which we allow to be inflicted upon our poor
school teachers. By skirting the fundamental issue involved, the Court is denying the petitioners
fairness, substantive due process, and simple humanity. The so-called investigations which led to
the initial dismissals were a farce. Instead of 90 day preventive suspensions, the Department of
Education, Culture, and Sports (DECS) immediately imposed punitive dismissals with no semblance
of rudimentary due process. All other civil service employees undergoing investigation are reinstated
after ninety days. Our teachers have been out of work for more than ten (10) months without income
while still undergoing administrative investigation. The suspension is indefinite if not permanent.
Patience has its limits. There are times when even the most constant and dedicated public servants
must given vent to their feelings and express their grievances at an unfeeling and inept bureaucracy
which seems to be incapable of attending to their officials needs. Professional agitators may have
infiltrated the teachers and muddled their demands with such outlandish calls as the closure of
foreign military bases, a cap on the payments of foreign debts and other issues not pressingly
relevant to teachers. But the basic demands are legitimate and few.

Teachers need a decent living wage, one in keeping with the dignity and worth of their profession.
Not only are their salaries unbelievably low but payment is often unreasonably delayed. When the
national government gives a little increase, a corresponding amount is reduced from the city share.
Teachers have to beg for allowances to be restored. The latest examples are the PERA adjustments.
As of July 12, 1991, most employees of the government had received and spent their PERA
allowances. Our public school teachers were still waiting. whatever the payment signifies salary,
bonus, allowance and even retirement or death benefits the last one to receive what all government
employees are entitled to, is the public school teacher. It is no small wonder that thousands of school
teachers swallow their dignity and accept employment as domestic servants overseas. I am not
aware of any government program which seeks to reverse the new definition of "Filipina" as a
domestic servant of foreigners whose education is often lower than that of their maids. Neither am I
aware of any determined effort to see to it that school teachers always get their salaries, allowances,
and benefits on time.
I mention the unconcern because it is what forced the petitioners to engage in mass concerted
action.
We agree that employees in the civil service may not engage in strikes, walk-outs and temporary
work stoppages like workers in the private sector. (Social Security System Employees Association v.
Court of Appeals, 175 SCRA 686, 698 [1989]). Employment in the Government is governed by law.
Government workers cannot use the same weapons employed by workers in the private sector to
secure concessions from their employers. The terms and conditions of employment are effected
through statutes and administrative rules and regulations, not through collective bargaining
agreements. (Alliance of Government Workers, et al. v. Minister of Labor and Employment, 124
SCRA 1, 13 [1983]).
The above rulings remain good law.
In the first place, if this Court uses the word "strike" to describe what the petitioners staged, it tends
to unfairly color and pre-judge their case. "Strike" becomes a pejorative epithet that leads to a
certain result not so much because of facts but because of its semantic connotations. The teachers
were in the main not asking for terms and conditions greater than those accorded by law. Their basic
demand was to be given on time what the law already provides for them. It was only after certain
elements penetrated their ranks and in the heat of the peaceful assembly that such demands as
closure of military bases and laws increasing salaries formed part of the leaders' statements. The
concerted action was more of a peaceful assembly, an exercise of speech by a gathering, not a
strike.
In the second place, when Government is deaf, when bureaucracy denies to our teachers the timely
payment of the pittances provided by law, should any ban still be enforced? And enforced in a
peremptory and oppressive manner? Should not the most basic freedom of speech and assembly in
these particular cases outweigh all considerations which ban strikes by civil service employees?
We agree with Justice Cardozo in Palko v. Connecticut, 302 US 319 [1937] that freedom of speech
is the matrix, the indispensable condition of nearly every other form of freedom.

We have cited with approbation Justice Brennan's stressing a "profound national commitment to the
principle that debate on public issues should be uninhibited, robust and wide open and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials". (New York Times, Co. v. Sullivan, 376 US 254 [1964])
Teachers have legitimate and pressing grievances. When Government consistently fails to act on
these grievances, the teachers have a right to speak in an effective manner. For speech to be
effective, it must be forceful enough to make the intended recipients listen.
I view the issue in these cases as more transcendent than the simple one of whether or not public
school teachers may go on strike. To me, the issue is the freedom to effectively speak. When the
members of a noble profession are demeaned by low salaries and inattention to their needs, surely
their freedom to speak in a manner and at a time as is most effective far outweighs conventional
adherence to orthodox civil service rules on proper conduct and correct behavior.
My other point has to do with an anomalous investigation procedure and considering the nature of
the offense, what is tantamount to cruel punishment.
I gather from the records and the majority opinion that the cases of individual teachers are still being
investigated and may be the subject of appeals to the Civil Service Commission.
If that is so, I cannot understand why the petitioners remain suspended up to the present. They
should have been reinstated after 90 days of preventive suspension. It is axiomatic that civil service
employees and even elected officials cannot be preventively suspended for more than 90 days
(Section 42, P.D. 807; Deloso v. Sandiganbayan, 173 SCRA 409 [1989]; Doromal v. Sandiganbayan,
177 SCRA 354 [1989]).
If the suspension is preventive, it has lasted too long. If punitive, it is illegal and violative of due
process.
There are anywhere from 800 to 2,000 teachers involved perhaps even more, once the unwieldy
procedures of DECS can arrive at accurate figures.
On October 8, 1990, the Department Secretary constituted an investigating committee of four,
repeat, four members to act on the formal charges.
Three days later, on October 11, 1990, the DECS found 20 teachers guilty and dismissed them. On
December 3, 1990, 658 teachers were dismissed, 40 were suspended for one year, 33 for 9 months,
and 122 for six months. There were 398 exonerations. I understand there were scores who had to
hurriedly look for medical certificates that they were "sick" while hundreds were urged to cringe and
grovel with humiliating mea culpas.
Even if the investigating committee or committees were staffed by supermen and superwomen, it is
inconceivable that 658 capital sentences of dismissal could be made in so short a time. Any officer
who has conducted an honest to goodness administrative investigation cannot but conclude that the
procedures which were followed violated the norms of fair play and due process. The decisions were

the products of prejudgment based on perfunctory paper investigations. Surely our public school
teachers deserve better treatment.
If subsequent to the sentences of dismissal, the teachers were properly served with summons, given
time to secure the services of competent counsel, allowed to defend themselves and cross-examine
witnesses against them, punished on the basis of reasoned decisions stating the facts and the law,
and otherwise given their rights to due process, the initial illegal actions should be set aside and the
teachers reinstated in the meantime.
Considering the circumstances which led the teachers to engage in mass action, the penalty of
dismissal is too grave. It is punishment which is cruel.
The officers and men of the Armed Forces who started a coup at the Manila Hotel were punished by
being made to do a few push-ups. The coup attempt in December, 1989 was almost successful. And
yet, only the officers are meted significant punishment. The enlisted men are readily pardoned. I see
no reason why similar treatment cannot be given our public school teachers. Their only offense was
to speak out in an effective manner against studied neglect.
Even if all requirements of due process in administrative investigations are followed and the
evidence points unerringly to guilt, a public school teacher should not be meted out a penalty
harsher than a few months suspension. In Labor Law, dismissals are imposed only against a handful
of leaders who committed acts of violence or instigated illegal strikes. (De Ocampo, Jr. v. NLRC, 186
SCRA 360 [1990]) As earlier stated, the word "strike" under Labor Law should not be used in
pejoration to denigrate a peaceful assembly.
I repeat that equitable considerations call for compassion. Public school teachers are the most hardworking, uncomplaining, easy to satisfy, and dutiful segment of our public service. They are also the
most underpaid professionals with a take home pay of a little over one hundred pesos a day, ** which is
the income of an unskilled laborer. They deserve justice and compassion.

CONSIDERING THE FOREGOING, I vote to GRANT the petition, to set aside the questioned orders
of the Secretary of Education, Culture, and Sports, to order reinstatement of the petitioners, and to
direct the payments of their salaries and backpay.
CRUZ, J., dissenting:
It appears to me from my reading of the ponencia and the several dissents that the petitioners have
established aprima facie case of arbitrariness on the part of the government that would justify direct
and immediate action from the Court as an exception to the regular procedure.
While I do agree that there are many factual matters to be ascertained and that this task belongs in
the first instance to the administrative authorities, I feel that precisely because of the number and
proximity of these issues, let alone the hundreds if not thousands of teachers involved, this Court
must grant the petitioners at least temporary relief pending the termination of the proceedings below.
These proceedings have been dragging on for months and will continue even longer, perhaps for
years. In the meantime, the petitioning teachers are out in the cold, without employment or income
and with only their hope, grown forlorn, I am afraid, in the justice of this Court.

I can understand Justice Narvasa's concern over the disarrangement of the well-ordered system of
judicial review and the resultant heavy burden that will be laid on the Court. However, I do not
propose that we assume the role of the trier of facts and encumber ourselves with the task of
deciding the hundreds of administrative cases being heard (or better heard) below by the DECS or
the Civil Service Commission. I am not prepared at this point to say that the Court should simply
pronounce the dismissal of the petitioners as arbitrary and to order their reinstatement with back
salaries. I would instead join Justice Padilla's suggestion that the teachers be ordered reinstated in
the meantime, without prejudice to their investigation in accordance with the prescribed procedure.
I am not unaware of the decision of the Court in the SSS case prohibiting members of the Civil
Service from engaging in strikes and similar acts. I submit, however that this ruling, assuming it to be
correct, is no license for the authorities to treat their employees with disdain and to flatly ignore their
legitimate complaints, with the expressed threat that they would be removed if they should be so
rash as to insist on their demands. In my view, that is what Secretary Carino has done.
Government workers, whatever their category or status, have as much right as any person in the
land to voice their protests against what they believe to be a violation of their interests. The fact that
they belong to the Civil Service has not deprived them of their freedom of expression, which is
guaranteed to every individual in this country, including even the alien. It would be ridiculous to even
suggest that by accepting public employment, the members of the Civil Service automatically and
impliedly renounce this basic liberty. This freedom can at best be regulated only but never
completely withdrawn.
When their first feeble complaints were not acted upon, the teachers had a light to speak loudly and
more insistently, and to show that their protests did not come from only a disgruntled few but from a
considerable number of them. They did this through their mass action in hopes that this way they
would be better heard and ultimately heeded. They were not. Instead, they were threatened with
dismissal and some were in fact dismissed. In effect, they were told to shut up or face the
consequences. I regard the return- to-work order as merely secondary and incidental, for the primary
purpose of the DECS authorities was to break up the demonstration and muzzle the demonstrators.
unquestionably, these individual teachers could not speak as effectively in their controlled
classrooms. What the Secretary sought was to deny the teachers the light to assemble and petition
the government for redress of their grievances on the sanctimonious excuse that they were needed
by their students.
I for one believe that the prohibition of members of the Civil Service from striking which, significantly,
is not found in the Constitution requires a careful re-examination. It is so easy, as the present case
has demonstrated, to use it as a bludgeon to silence complaint, however legitimate. Complaint is a
weapon of the worker, and it is more effective if manifested not by him alone but with his co-owners.
Under the present ruling, the workers in the private sector may complain collectively and if
necessary declare a strike to enforce their demands, but this recourse is denied the public
employees even if their demands are no less valid. In this sense, the freedom of expression of the
civil servant is diminished and his right to improve the conditions of his employment is
correspondingly reduced, and order because he belongs to the public sector.

It is so easy to say that the education of the youth should not be disrupted but we should not forget
that the protection of freedom of expression is no less important. Indeed, the quality of education
would deteriorate in an atmosphere of repression, when the very teachers who are supposed to
provide an example of courage and self-assertiveness to their pupils can speak only in timorous
whispers. The classrooms should be an incubator of freedom, not fear.
PARAS, J., concurring
I concur. Public school teachers have the right to peaceably assemble for redress of grievances but
NOT during class hours, for then this would be a strike, which is illegal for them.
FELICIANO, J., dissenting:
With regret, I find myself unable to concur in the majority opinion. I would associate myself with the
reasoning and conclusions (though not necessarily with all the adjectives and adverbs) of the
dissenting opinion of Gutierrez, J. as well as the conclusions reached by Padilla and Sarmiento, JJ.,
in their respective dissenting opinion.
Here I merely wish to underscore the constitutional issue which appears to me to be raised in the
instant case by the contraposition of, on the one hand, the prohibition against employees in the
public sector going on strikes and, on the other hand, the rights of free speech and of assembly and
petition of those same employees. InSocial Security System Employees Association (SSSEA) v.
Court of Appeals (175 SCRA 686 [1989]), the Court, through Cortes, J., pointed out that the
prohibition against strikes in the public sector is presently founded upon Memorandum Circular No.
6, Series of 1987, of the Civil Service Commission dated 21 April 1987, and indirectly and impliedly,
upon Executive Order No. 180 dated 1 June 1987 which provides guidelines for the exercise of the
constitutional right of government employees to organize themselves. The prohibition is not, in other
words, even statutory in nature but merely administrative or regulatory in character and the Court
took explicit note of the absence of legislation either prohibiting or allowing strikes, or even merely
regulating the exercise of a right to strike by government employees. The policy embodied in that
prohibition is admittedly a legitimate and important one: to prevent or minimize the disruption and
paralysis of the operations of government, especially the essential services rendered by it to society
at large. At the same time, that the rights of free speech and of peaceful assembly and petition for
redress of grievances are at least equally important and critical for the maintenance of a free, open
and democratic polity, is not disputed by any one.
It seems to me that the majority opinion has considered the administrative prohibition of strikes in the
government sector as an absolute given. There appears no visible evidence of an effort to explore
the scope and limits of applicability of that prohibition. It would seem reasonably clear, however, that
we cannot semper et ubique give exclusive relevance to that simple prohibition, that there are at
stake here also the competing public values and interests implicit in free speech and peaceable
assembly and petition, and that those rights too cannot be treated as absolutes without any regard to
the necessities of orderly and efficient governance of a developing country with obviously finite
resources. The requirements of both desiderata must be balanced, consciously, with realism and
sensitivity, in particular situations such as that presented in the instant case and points or lines of
equilibrium drawn, however tentatively. 1

My concern, and this is submitted with great respect, is that in the instant case, the Court has not
sufficiently engaged in the required balancing operation and had instead acted and spoken as if the
order societal interest involved is that of the government in the maintenance of its operations and
activities. The teaching of school children is obviously important, indeed fundamental. Some of the
leaders of some of the teachers' organizations may be non-teachers and possibly professional
agitators. But the refusal to meet with and discuss the pleas and grievances of the genuine public
school teachers and the summary and mass disciplinary sanctions with which the respondent DECS
officials have responded may produce, and appear in fact to have produced, the very stoppage and
prolonged disruption which Memorandum Circular No. 6 seeks to avoid.
There is, of course, no facile formula by which the competing interests may be adjusted and
balanced, one with the other, in very specific contexts like the one here existing. But adjustments
and compromise there must be. It seems to me very difficult to suppose that government service
may be rendered only at the cost of foregoing the exercise (or, as Gutierrez, J. puts it, the effective
exercise) of the rights of free speech and assembly and petition. To require civil servants in general,
and public school teachers in particular, to leave at home their constitutional rights when they go to
work, is to exact mindless conformity and ductility, no matter how immediate serious and pervasive
the problems and grievances may be, as the cost of serving the Republic. That those problems and
grievances may at bottom be economic rather than political certainly does not change the legal
equation. Such an exaction is not to be counternanced in our constitutional system: it imposes
oppressive costs upon the individual human spirit and intolerable burdens on national development. I
vote to GRANT the Petitions.
PADILLA, J., dissenting:
The majority opinion has compressed the issue to whether there has been a denial of due process to
the teachers, disregarding altogether the constitutional right to peaceably assemble and petition the
government for redress of grievances (Art. III, par. 4 Bill of Rights of the 1987 Constitution). But even
limiting oneself to the issue of denial of due process, the majority opinion asserts that it is not ripe for
adjudication by the Court in the exercise of its review jurisdiction because the issue involves
questions of fact. But why then does the majority opinion proceed to declare/recognize the mass
action of the teachers as illegal? Does this not constitute a categorical finding of fact leaving the
dismissed or suspended teachers without any other recourse?
Due process prior to termination or suspension consisted of, according to the majority opinion, the
following
On the record, what did happen was that, based on reports submitted by the
principals of the various public schools in Metro Manila, the respondent Secretary of
Education had filed motu propio administrative complaints against the teachers who
had taken part in the mass actions and defied the return-to-work order on assorted
charges like grave misconduct, gross neglect of duty, gross violation of the Civil
Service Law, absence without official leave, etc., and placed then under 90-day
preventive suspension. The respondents were served copies of the charge sheets
and given five (5) days to submit answer or explanation. Later, on October 8, 1990,
the respondent Secretary constituted an investigating committee of four (4) to

determine and take the appropriate course of action on the formal charges and
designated the special prosecutors on detail with the DECS to handle their
prosecution during the formal hearings.
On October 11, 1990, the respondent Secretary of Education rendered the first of his
now questioned decisions on the administrative complaints. In Case No. DECS 90002, he found twenty (20) respondent teachers guilty of the charges proferred
against them and dismissed them from office, effective immediately. In the other
investigations that followed and as of December 3, 1990, 658 teachers were
dismissed, 40 were suspended for one (1) year, 33 for nine (9) months, and 122 for
six (6) months; 398 were exonerated. (pp. 4-5)
It is to be noted that the above proceedings took place in a charged atmosphere. Objective and
dispassionate appraisal of the merits of each case could hardly be expected in such a setting.
Whenever a governmental body acts so as to injure an individual, the Constitution
requires that the act be consonant with due process of law. The minimum procedural
requirements necessary to satisfy due process depend upon the circumstances and
the interests of the parties involved. As stated by Mr. Justice Frankfurter concurring in
Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 163:
Whether the ex parte procedure to which the petitioners were
subjected duly observed 'the rudiments of fair play' ... cannot ... be
tested by mere generalities or sentiments abstractly appealing. The
precise nature of the interest that has been adversely affected, the
manner in which this was done, the reasons for doing it, the available
alternatives to the procedure that was followed, the protection implicit
in the office of the functionary whose conduct is challenged, the
balance of hurt complained of and good accomplished these are
some of the considerations that must enter into the judicial
judgment. 1 (Emphasis supplied)
The nature of the hearings should vary depending upon the circumstances of the particular
case. 2 The constitutional guarantee of due process means concurrence of substantive and procedural
due process. The narration in the majority opinion speaks only of the latter, completely disregarding
the substance of petitioners' claims. It would appear that dismissals and suspensions of the teachers
were meted out de rigor and in rapid succession, evidently in retaliation for airing their grievances against
the government. It is not to suggest an elaborate procedural mechanism, but only fidelity to the minimum
safeguards untainted by arbitrariness and undue haste.
In my view, the public school teachers are the silent and unsung heroes of our society. They deserve
more compassion, if not more understanding, when they break their silence to plead and press for
benefits they perceive have been unjustly denied them. For it can not be overlooked that public
school teachers are terribly underpaid when related to the responsibilities they discharge in moulding
the character of our youth. The government should itself undergo an introspective re-arraignment of

its priorities and values in approaching the problem of how to treat the teachers with fairness and
justice.
Denial of due process is an issue which is ripe for adjudication right in this Court, and in this case.
The petition should be granted and the cases remanded to the DECS for proper redetermination of
the culpability of each teacher, this time, in an atmosphere compatible with due process. Meanwhile,
they should be reinstated pending the outcome of such proceedings, including a recourse by appeal
to the Civil Service Commission.
SARMIENTO, J., dissenting:
Like Justice Gutierrez; I have difficulty concurring with the majority.
What I indeed find apparent is that a thousand or so of our countrymen will be out of work because
the Supreme Court can not supposedly try facts.
The duty of the Court, as the Constitution expresses it, is, among other things:
... to determine whether or not there has been a grave abuse of discretion ... on the part of any
branch or instrumentality of the Government. 1
It is a duty, so I submit, from which the Court can not shirk on the handy excuse that it is being made
to try facts. I submit that it is a duty that often requires, precisely, a factual inquiry.
If we are being asked to try facts, it is not the first time we would have been asked, and complied.
In Lansang v. Garcia, 2 we did satisfy ourselves that the facts warranted an act of the Executive. We did
go to great lengths to sift evidence.
The nagging fact (no pun intended) is that apparently, we are not truly talking about "facts" here. The
nagging fact, as Justice Gutierrez points out, is that the petitioners have been under suspension for
the last ten months, and the sole question, apparently, is whether or not in the midst of this fact,
Secretary Carino acted arbitrarily.
I do not think that the majority has understood enough the gravity of teachers' condition. As Justice
Gutierrez points out our teachers have long been the most neglected, yet the most forebearing,
members of the public service. "[I]t [the Government's lack of concern] is what forced the
petitioners," according to Justice Gutierrez, "to engage in mass concerted action. 3 I would like to add
that maybe, the Government had it coming.
As the majority avers, these cases are not all about whether the petitioners could have validly gone
on a strike that question has long been settled by this Court-but rather, whether or not they have
been given due process as a result of investigations arising from the strike. I submit that due process
is a perfectly legitimate issue to debate in Court an issue involving the mentors of the nation's
children no less.

I also submit that it is to trivialize the noblest profession, if it is not to trivialize the serious crisis
confronting the state of Philippine education, to dismiss these complaints as if it involved simple
personalities demanding money. If Carino acted as if it were that, and as if it were a matter alone of
"they struck so I fired them" I submit that we ought to know better. The State assures education for
all. 4 It also gives priority to education, as an indispensable process in nation-building. 5 There is no harm
in listening to our educators. I therefore vote to grant both petitions.
G.R. No. 122226 March 25, 1998
UNITED PEPSI-COLA SUPERVISORY UNION (UPSU), petitioner,
vs.
HON. BIENVENIDO E. LAGUESMA and PEPSI-COLA PRODUCTS, PHILIPPINES,
INC. respondents.

MENDOZA, J.:
Petitioner is a union of supervisory employees. It appears that on March 20, 1995 the union filed a
petition for certification election on behalf of the route managers at Pepsi-Cola Products Philippines,
Inc. However, its petition was denied by the med-arbiter and, on appeal, by the Secretary of Labor
and Employment, on the ground that the route managers are managerial employees and, therefore,
ineligible for union membership under the first sentence of Art. 245 of the Labor Code, which
provides:
Ineligibility of managerial employees to join any labor organization; right of supervisory
employees. Managerial employees are not eligible to join, assist or form any labor
organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form separate labor
organizations of their own.
Petitioner brought this suit challenging the validity of the order dated August 31, 1995, as reiterated
in the order dated September 22, 1995, of the Secretary of Labor and Employment. Its petition was
dismissed by the Third Division for lack of showing that respondent committed grave abuse of
discretion. But petitioner filed a motion for reconsideration, pressing for resolution its contention that
the first sentence of Art. 245 of the Labor Code, so far as it declares managerial employees to be
ineligible to form, assist or join unions, contravenes Art. III, 8 of the Constitution which provides:
The right of the people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be abridged.
For this reason, the petition was referred to the Court en banc.
The Issues in this Case
Two questions are presented by the petition: (1) whether the route managers at Pepsi-Cola Products
Philippines, Inc. are managerial employees and (2) whether Art. 245, insofar as it prohibits
managerial employees from forming, joining or assisting labor unions, violates Art. III, 8 of the
Constitution.

In resolving these issues it would be useful to begin by defining who are "managerial employees"
and considering the types of "managerial employees."
Types of Managerial Employees
The term "manager" generally refers to "anyone who is responsible for subordinates and other
organizational resources." As a class, managers constitute three levels of a pyramid:
1

Top management

Middle
Management

First-Line
Management
(also called
Supervisor)
====================
Operatives
or
Operating
Employees
FIRST-LINE MANAGERS The lowest level in an organization at which individuals are
responsible for the work of others is called first-line or first-level management. First-line
managers direct operating employees only; they do not supervise other
managers. Examples of first-line managers are the "foreman" or production supervisor in a
manufacturing plant, the technical supervisor in a research department, and the clerical
supervisor in a large office. First-level managers are often called supervisors.
MIDDLE MANAGERS The term middle management can refer to more than one level in
an organization. Middle managers direct the activities of other managers and sometimes
also those of operating employees. Middle managers' principal responsibilities are to direct
the activities that implement their organizations' policies and to balance the demands of their
superiors with the capacities of their subordinates. A plant manager in an electronics firm is
an example of a middle manager.

TOP MANAGERS Composed of a comparatively small group of executives, top

management is responsible for the overall management of the organization. It establishes
operating policies and guides the organization's interactions with its environment. Typical
titles of top managers are "chief executive officer,""president," and "senior vice-president."
Actual titles vary from one organization to another and are not always a reliable guide to
membership in the highest management classification.
2

As can be seen from this description, a distinction exists between those who have the authority to
devise, implement and control strategic and operational policies (top and middle managers) and
those whose task is simply to ensure that such policies are carried out by the rank-and-file
employees of an organization (first-level managers/supervisors). What distinguishes them from the
rank-and-file employees is that they act in the interest of the employer in supervising such rank-andfile employees.
"Managerial employees" may therefore be said to fall into two distinct categories: the
"managers" per se, who compose the former group described above, and the "supervisors" who
form the latter group. Whether they belong to the first or the second category, managers, vis-avis employers, are, likewise, employees.
3

The first question is whether route managers are managerial employees or supervisors.
Previous Administrative Determinations of
the Question Whether Route Managers
are Managerial Employees
It appears that this question was the subject of two previous determinations by the Secretary of
Labor and Employment, in accordance with which this case was decided by the med-arbiter.
In Case No. OS-MA-10-318-91, entitled Worker's Alliance Trade Union (WATU) v. Pepsi-Cola
Products Philippines, Inc., decided on November 13, 1991, the Secretary of Labor found:
We examined carefully the pertinent job descriptions of the subject employees and other
documentary evidence on record vis-a-vis paragraph (m), Article 212 of the Labor Code, as
amended, and we find that only those employees occupying the position of route manager
and accounting manager are managerial employees. The rest i.e. quality control manager,
yard/transport manager and warehouse operations manager are supervisory employees.
To qualify as managerial employee, there must be a clear showing of the exercise of
managerial attributes under paragraph (m), Article 212 of the Labor Code as amended.
Designations or titles of positions are not controlling. In the instant case, nothing on record
will support the claim that the quality control manager, yard/transport manager and
warehouse operations manager are vested with said attributes. The warehouse operations
manager, for example, merely assists the plant finance manager in planning, organizing,
directing and controlling all activities relative to development and implementation of an
effective management control information system at the sale offices. The exercise of
authority of the quality control manager, on the other hand, needs the concurrence of the
manufacturing manager.
As to the route managers and accounting manager, we are convinced that they are
managerial employees. Their job descriptions clearly reveal so.

On July 6, 1992, this finding was reiterated in Case No. OS-A-3-71-92. entitled In Re: Petition for
Direct Certification and/or Certification Election-Route Managers/Supervisory Employees of PepsiCola Products Phils.Inc., as follows:
The issue brought before us is not of first impression. At one time, we had the occasion to
rule upon the status of route manager in the same company vis a vis the issue as to whether
or not it is supervisory employee or a managerial employee. In the case of Workers Alliance
Trade Unions (WATU) vs. Pepsi Cola Products, Phils., Inc. (OS-MA-A-10-318-91 ), 15
November 1991, we ruled that a route manager is a managerial employee within the context
of the definition of the law, and hence, ineligible to join, form or assist a union. We have once
more passed upon the logic of our Decision aforecited in the light of the issues raised in the
instant appeal, as well as the available documentary evidence on hand, and have come to
the view that there is no cogent reason to depart from our earlier holding. Route Managers
are, by the very nature of their functions and the authority they wield over their subordinates,
managerial employees. The prescription found in Art. 245 of the Labor Code, as amended
therefore, clearly applies to them.
4

Citing our ruling in Nasipit Lumber Co. v. National Labor Relations Commission, however, petitioner
argues that these previous administrative determinations do not have the effect of res judicata in this
case, because "labor relations proceedings" are "non-litigious and summary in nature without regard
to legal technicalities." Nasipit Lumber Co. involved a clearance to dismiss an employee issued by
the Department of Labor. The question was whether in a subsequent proceeding for illegal dismissal,
the clearance was res judicata. In holding it was not, this Court made it clear that it was referring to
labor relations proceedings of a non-adversary character, thus:
5

The requirement of a clearance to terminate employment was a creation of the Department

of labor to carry out the Labor Code provisions on security of tenure and termination of
employment. The proceeding subsequent to the filing of an application for clearance to
terminate employment was outlined in Book V, Rule XIV of the Rules and Regulations
Implementing the Labor Code. The fact that said rule allowed a procedure for the approval of
the clearance with or without the opposition of the employee concerned (Secs. 7 & 8),
demonstrates the non-litigious and summary nature of the proceeding. The clearance
requirement was therefore necessary only as an expeditious shield against arbitrary
dismissal without the knowledge and supervision of the Department of Labor. Hence, a duly
approved clearance implied that the dismissal was legal or for cause (Sec. 2).
7

But the doctrine of res judicata certainly applies to adversary administrative proceedings. As early as
1956, inBrillantes v. Castro, we sustained the dismissal of an action by a trial court on the basis of a
prior administrative determination of the same case by the Wage Administration Service, applying
the principle of res judicata. Recently, in Abad v. NLRC we applied the related doctrine of stare
decisis in holding that the prior determination that certain jobs at the Atlantic Gulf and Pacific Co.,
were project employments was binding in another case involving another group of employees of the
same company. Indeed, in Nasipit Lumber Co., this Court clarified toward the end of its opinion that
"the doctrine of res judicata applies . . . to judicial or quasi judicial proceedings and not to the
exercise of administrative powers." Now proceedings for certification election, such as those
involved in Case No. OS-M-A-10-318-91 and Case No. OS-A-3-71-92, are quasi judicial in nature
and, therefore, decisions rendered in such proceedings can attain finality.
8

10

11

Thus, we have in this case an expert's view that the employees concerned are managerial
employees within the purview of Art. 212 which provides:

(m) "managerial employee" is one who is vested with powers or prerogatives to lay down and
execute management policies and/or to hire, transfer, suspend, lay off, recall, discharge,
assign or discipline employees. Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the exercise of such authority is
not merely routinary or clerical in nature but requires the use of independent judgment. All
employees not falling within any of the above definitions are considered rank-and-file
employees for purposes of this Book.
At the very least, the principle of finality of administrative determination compels respect for the
finding of the Secretary of Labor that route managers are managerial employees as defined by law
in the absence of anything to show that such determination is without substantial evidence to
support it. Nonetheless, the Court, concerned that employees who are otherwise supervisors may
wittingly or unwittingly be classified as managerial personnel and thus denied the right of selforganization, has decided to review the record of this case.
DOLE's Finding that Route Managers are
Managerial Employees Supported by
Substantial Evidence in the Record
The Court now finds that the job evaluation made by the Secretary of Labor is indeed supported by
substantial evidence. The nature of the job of route managers is given in a four-page pamphlet,
prepared by the company, called "Route Manager Position Description," the pertinent parts of which
read:
A. BASIC PURPOSE
A Manager achieves objectives through others.
As a Route Manager, your purpose is to meet the sales plan; and you
achieve this objective through the skillful MANAGEMENT OF YOUR JOB
AND THE MANAGEMENT OF YOUR PEOPLE.
These then are your functions as Pepsi-Cola Route Manager. Within these
functions managing your job and managing your people you are
accountable to your District Manager for the execution and completion of
various tasks and activities which will make it possible for you to achieve your
sales objectives.
B. PRINCIPAL ACCOUNTABILITIES
1.0 MANAGING YOUR JOB
The Route Manager is accountable for the following:
1.1 SALES DEVELOPMENT
1.1.1 Achieve the sales plan.
1.1.2 Achieve all distribution and new account
objectives.

1.1.3 Develop new business opportunities thru

personal contacts with dealers.
1.1.4 Inspect and ensure that all
merchandizing [sic] objectives are achieved in
all outlets.
1.1.5 maintain and improve productivity of all
cooling equipment and kiosks.
1.1.6 Execute and control all authorized
promotions.
1.1.7 Develop and maintain dealer goodwill.
1.1.8 Ensure all accounts comply with
company suggested retail pricing.
1.1.9 Study from time to time individual route
coverage and productivity for possible
adjustments to maximize utilization of
resources.
1.2 Administration
1.2.1 Ensure the proper loading of route
trucks before check-out and the proper sorting
of bottles before check-in.
1.2.2 Ensure the upkeep of all route sales
reports and all other related reports and forms
required on an accurate and timely basis.
1.2.3 Ensure proper implementation of the
various company policies and procedures incl.
but not limited to shakedown; route shortage;
progressive discipline; sorting; spoilages;
credit/collection; accident; attendance.
1.2.4 Ensure collection of receivables and
delinquent accounts.
2.0 MANAGING YOUR PEOPLE
The Route Manager is accountable for the following:
2.1 Route Sales Team Development
2.1.2 Conduct route rides to train, evaluate
and develop all assigned route salesmen and
helpers at least 3 days a week, to be

supported by required route ride

documents/reports & back check/spot check
at least 2 days a week to be supported by
required documents/reports.
2.1.2 Conduct sales meetings and morning
huddles. Training should focus on the
enhancement of effective sales and
merchandizing [sic] techniques of the
salesmen and helpers. Conduct group training
at least 1 hour each week on a designated
day and of specific topic.
2.2 Code of Conduct
2.2.1 Maintain the company's reputation
through strict adherence to PCPPI's code of
conduct and the universal standards of
unquestioned business
ethics.
12

Earlier in this opinion, reference was made to the distinction between managers per se (top
managers and middle managers) and supervisors (first-line managers). That distinction is evident in
the work of the route managers which sets them apart from supervisors in general. Unlike
supervisors who basically merely direct operating employees in line with set tasks assigned to them,
route managers are responsible for the success of the company's main line of business through
management of their respective sales teams. Such management necessarily involves the planning,
direction, operation and evaluation of their individual teams and areas which the work of supervisors
does not entail.
The route managers cannot thus possibly be classified as mere supervisors because their work does
not only involve, but goes far beyond, the simple direction or supervision of operating employees to
accomplish objectives set by those above them. They are not mere functionaries with simple
oversight functions but business administrators in their own right. An idea of the role of route
managers as managers per se can be gotten from a memo sent by the director of metro sales
operations of respondent company to one of the route managers. It reads:
13

03 April 1995
To : CESAR T . REOLADA
From : REGGIE M. SANTOS
Subj : SALARY INCREASE
Effective 01 April 1995, your basic monthly salary of P11,710 will be increased to P12,881 or
an increase of 10%. This represents the added managerial responsibilities you will assume
due to the recent restructuring and streamlining of Metro Sales Operations brought about by
the continuous losses for the last nine (9) months.

Let me remind you that for our operations to be profitable, we have to sustain the intensity
and momentum that your group and yourself have shown last March. You just have to deliver
the desired volume targets, better negotiated concessions, rationalized sustaining deals,
eliminate or reduced overdues, improved collections, more cash accounts, controlled
operating expenses, etc. Also, based on the agreed set targets, your monthly performance
will be closely monitored.
You have proven in the past that your capable of achieving your targets thru better planning,
managing your group as a fighting team, and thru aggressive selling. I am looking forward to
your success and I expect that you just have to exert your doubly best in turning around our
operations from a losing to a profitable one!
Happy Selling!!
(
S
g
d
.
)
R
.
M
.
S
A
N
T
O
S
The plasticized card given to route managers, quoted in the separate opinion of Justice Vitug,
although entitled "RM's Job Description," is only a summary of performance standards. It does not
show whether route managers are managers per se or supervisors. Obviously, these performance
standards have to be related to the specific tasks given to route managers in the four-page "Route
Manager Position Description," and, when this is done, the managerial nature of their jobs is fully
revealed. Indeed, if any, the card indicates the great latitude and discretion given to route managers
from servicing and enhancing company goodwill to supervising and auditing accounts, from trade
(new business) development to the discipline, training and monitoring of performance of their
respective sales teams, and so forth, if they are to fulfill the company's expectations in the "key
result areas."
Article 212(m) says that "supervisory employees are those who, in the interest of the employer,
effectivelyrecommend such managerial actions if the exercise of such authority is not merely
routinary or clerical in nature but requires the use of independent judgment." Thus, their only power
is to recommend. Certainly, the route managers in this case more than merely recommend effective
management action. They perform operational, human resource, financial and marketing functions
for the company, all of which involve the laying down of operating policies for themselves and their
teams. For example, with respect to marketing, route managers, in accordance with B.1.1.1 to
B.1.1.9 of the Route Managers Job Description, are charged, among other things, with expanding

the dealership base of their respective sales areas, maintaining the goodwill of current dealers, and
distributing the company's various promotional items as they see fit. It is difficult to see how
supervisors can be given such responsibility when this involves not just the routine supervision of
operating employees but the protection and expansion of the company's business vis-a-vis its
competitors.
While route managers do not appear to have the power to hire and fire people (the evidence shows
that they only "recommended" or "endorsed" the taking of disciplinary action against certain
employees), this is because this
is a function of the Human Resources or Personnel Department of the company. And neither
should it be presumed that just because they are given set benchmarks to observe, they are ipso
facto supervisors. Adequate control methods (as embodied in such concepts as "Management by
Objectives [MBO]" and "performance appraisals") which require a delineation of the functions and
responsibilities of managers by means of ready reference cards as here, have long been recognized
in management as effective tools for keeping businesses competitive.
14

This brings us to the second question, whether the first sentence of Art. 245 of the Labor Code,
prohibiting managerial employees from forming, assisting or joining any labor organization, is
constitutional in light of Art. III, 8 of the Constitution which provides:
The right of the people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be abridged.
As already stated, whether they belong to the first category (managers per se) or the second
category (supervisors), managers are employees. Nonetheless, in the United States, as Justice
Puno's separate opinion notes, supervisors have no right to form unions. They are excluded from
the definition of the term "employee" in 2(3) of the Labor-Management Relations Act of 1947. In
the Philippines, the question whether managerial employees have a right of self-organization has
arisen with respect to first-level managers or supervisors, as shown by a review of the course of
labor legislation in this country.
15

Right of Self-Organization of Managerial

Employees under Pre-Labor Code Laws
Before the promulgation of the Labor Code in 1974, the field of labor relations was governed by the
Industrial Peace Act (R.A. No. 875).
In accordance with the general definition above, this law defined "supervisor" as follows:
Sec. 2. . . .
(k) "Supervisor" means any person having authority in the interest of an employer, to hire,
transfer, suspend, lay-off, recall, discharge, assign, recommend, or discipline other
employees, or responsibly to direct them, and to adjust their grievances, or effectively to
recommend such acts, if, in connection with the foregoing, the exercise of such authority is
not of a merely routinary or clerical nature but requires the use of independent judgment.
16

The right of supervisors to form their own organizations was affirmed:

Sec. 3. Employees' Right to Self-Organization. Employees shall have the right to selforganization and to form, join or assist labor organizations of their own choosing for the

purpose of collective bargaining through representatives of their own choosing and to

engage in concerted activities for the purpose of collective bargaining and other mutual aid
and protection. Individuals employed as supervisors shall not be eligible for membership in a
labor organization of employees under their supervision but may form separate
organizations of their own.
17

For its part, the Supreme Court upheld in several of its decisions the right of supervisors to organize
for purposes of labor relations.
18

Although it had a definition of the term "supervisor," the Industrial Peace Act did not define the term
"manager." But, using the commonly-understood concept of "manager," as above stated, it is
apparent that the law used the term "supervisors" to refer to the sub-group of "managerial
employees" known as front-line managers. The other sub-group of "managerial employees," known
as managers per se, was not covered.
However, in Caltex Filipino Managers and Supervisors Association v. Court of Industrial
Relations, the right of all managerial employees to self-organization was upheld as a general
proposition, thus:
19

It would be going too far to dismiss summarily the point raised by respondent Company
that of the alleged identity of interest between the managerial staff and the employing firm.
That should ordinarily be the case, especially so where the dispute is between management
and the rank and file. It does not necessarily follow though that what binds the managerial
staff to the corporation forecloses the possibility of conflict between them. There could be a
real difference between what the welfare of such group requires and the concessions the
firm is willing to grant. Their needs might not be attended to then in the absence of any
organization of their own. Nor is this to indulge in empty theorizing. The record of respondent
Company, even the very case cited by it, is proof enough of their uneasy and troubled
relationship. Certainly the impression is difficult to erase that an alien firm failed to manifest
sympathy for the claims of its Filipino executives. To predicate under such circumstances
that agreement inevitably marks their relationship, ignoring that discord would not be
unusual, is to fly in the face of reality.
. . . The basic question is whether the managerial personnel can organize. What respondent
Company failed to take into account is that the right to self-organization is not merely a
statutory creation. It is fortified by our Constitution. All are free to exercise such right unless
their purpose is contrary to law. Certainly it would be to attach unorthodoxy to, not to say an
emasculation of, the concept of law if managers as such were precluded from organizing.
Having done so and having been duly registered, as did occur in this case, their union is
entitled to all the rights under Republic Act No. 875. Considering what is denominated as
unfair labor practice under Section 4 of such Act and the facts set forth in our decision, there
can be only one answer to the objection raised that no unfair labor practice could be
committed by respondent Company insofar as managerial personnel is concerned. It is, as is
quite obvious, in the negative.
20

Actually, the case involved front-line managers or supervisors only, as the plantilla of employees,
quoted in the main opinion, clearly indicates:
21

CAFIMSA members holding the following Supervisory Payroll Position Title are Recognized
by the Company
Payroll Position Title

Assistant to Mgr. National Acct. Sales

Jr. Sales Engineer
Retail Development Asst.
Staff Asst. 0 Marketing
Sales Supervisor
Supervisory Assistant
Jr. Supervisory Assistant
Credit Assistant
Lab. Supvr. Pandacan
Jr. Sales Engineer B
Operations Assistant B
Field Engineer
Sr. Opers. Supvr. MIA A/S
Purchasing Assistant
Jr. Construction Engineer
Sr. Sales Supervisor
Deport Supervisor A
Terminal Accountant B
Merchandiser
Dist. Sales Prom. Supvr.
Instr. Merchandising
Asst. Dist. Accountant B
Sr. Opers. Supervisor
Jr. Sales Engineer A
Asst. Bulk Ter. Supt.

Sr. Opers. Supvr.

Credit Supervisor A
Asst. Stores Supvr. A
Ref. Supervisory Draftsman
Refinery Shift Supvr. B
Asst. Supvr. A Operations (Refinery)
Refinery Shift Supvr. B
Asst. Lab. Supvr. A (Refinery)
St. Process Engineer B (Refinery)
Asst. Supvr. A Maintenance (Refinery)
Asst. Supvr. B Maintenance (Refinery)
Supervisory Accountant (Refinery)
Communications Supervisor (Refinery)
Finally, also deemed included are all other employees excluded from the rank and file unions
but not classified as managerial or otherwise excludable by law or applicable judicial
precedents.
Right of Self-Organization of Managerial
Employees under the Labor Code
Thus, the dictum in the Caltex case which allowed at least for the theoretical unionization of top and
middle managers by assimilating them with the supervisory group under the broad phrase
"managerial personnel," provided the lynchpin for later laws denying the right of self-organization not
only to top and middle management employees but to front line managers or supervisors as well.
Following the Caltex case, the Labor Code, promulgated in 1974 under martial law, dropped the
distinction between the first and second sub-groups of managerial employees. Instead of treating
the terms "supervisor" and "manager" separately, the law lumped them together and called them
"managerial employees," as follows:
Art. 212. Definitions . . . .
(k) "Managerial Employee" is one who is vested with powers or prerogatives to lay down and
execute management policies and/or to hire, transfer, suspend, lay off, recall, discharge,
assign or discipline employees, or to effectively recommend such managerial actions. All
employees not falling within this definition are considered rank and file employees for
purposes of this Book.
22

The definition shows that it is actually a combination of the commonly understood definitions of both
groups of managerial employees, grammatically joined by the phrase "and/or."
This general definition was perhaps legally necessary at that time for two reasons. First, the 1974
Code denied supervisors their right to self-organize as theretofore guaranteed to them by the
Industrial Peace Act. Second, it stood the dictum in the Caltex case on its head by prohibiting all
types of managers from forming unions. The explicit general prohibition was contained in the then
Art. 246 of the Labor Code.
The practical effect of this synthesis of legal concepts was made apparent in the Omnibus Rules
Implementing the Labor Code which the Department of Labor promulgated on January 19, 1975.
Book V, Rule II, 11 of the Rules provided:
Supervisory unions and unions of security guards to cease operation. All existing
supervisory unions and unions of security guards shall, upon the effectivity of the Code,
cease to operate as such and their registration certificates shall be deemed automatically
canceled. However, existing collective agreements with such unions, the life of which
extends beyond the date of effectivity of the Code, shall be respected until their expiry date
insofar as the economic benefits granted therein are concerned.
Members of supervisory unions who do not fall within the definition of managerial employees
shall become eligible to join or assist the rank and file labor organization, and if none exists,
to form or assist in the forming of such rank and file organization. The determination of who
are managerial employees and who are not shall be the subject of negotiation between
representatives of the supervisory union and the employer. If no agreement is reached
between the parties, either or both of them may bring the issue to the nearest Regional
Office for determination.
The Department of Labor continued to use the term "supervisory unions" despite the demise of the
legal definition of "supervisor" apparently because these were the unions of front line managers
which were then allowed as a result of the statutory grant of the right of self-organization under the
Industrial Peace Act. Had the Department of Labor seen fit to similarly ban unions of top and middle
managers which may have been formed following the dictum in Caltex, it obviously would have done
so. Yet it did not, apparently because no such unions of top and middle managers really then
existed.
Real Intent of the 1986 Constitutional Commission
This was the law as it stood at the time the Constitutional Commission considered the draft of Art. III,
8. Commissioner Lerum sought to amend the draft of what was later to become Art. III, 8 of the
present Constitution:
MR. LERUM. My amendment is on Section 7, page 2, line 19, which is to insert between the
words "people" and "to" the following: WHETHER EMPLOYED BY THE STATE OR
PRIVATE ESTABLISHMENTS. In other words, the section will now read as follows: "The
right of the people WHETHER EMPLOYED BY THE STATE OR PRIVATE
ESTABLISHMENTS to form associations, unions, or societies for purposes not contrary to
law shall not be abridged."
23

Explaining his proposed amendment, he stated:

MR. LERUM. Under the 1935 Bill of Rights, the right to form associations is granted to all
persons whether or not they are employed in the government. Under that provision, we allow
unions in the government, in government-owned and controlled corporations and in other
industries in the private sector, such as the Philippine Government Employees' Association,
unions in the GSIS, the SSS, the DBP and other government-owned and controlled
corporations. Also, we have unions of supervisory employees and of security guards. But
what is tragic about this is that after the 1973 Constitution was approved and in spite of an
express recognition of the right to organize in P.D. No. 442, known as the Labor Code, the
right of government workers, supervisory employees and security guards to form unions was
abolished.
And we have been fighting against this abolition. In every tripartite conference attended by
the government, management and workers, we have always been insisting on the return of
these rights. However, both the government and employers opposed our proposal, so
nothing came out of this until this week when we approved a provision which states:
Notwithstanding any provision of this article, the right to self-organization
shall not be denied to government employees.
We are afraid that without any corresponding provision covering the private sector, the
security guards, the supervisory employees or majority employees [sic] will still be excluded,
and that is the purpose of this amendment.
I will be very glad to accept any kind of wording as long as it will amount to absolute
recognition of private sector employees, without exception, to organize.
THE PRESIDENT. What does the Committee say?
FR. BERNAS. Certainly, the sense is very acceptable, but the point raised by Commissioner
Rodrigo is well-taken. Perhaps, we can lengthen this a little bit more to read: "The right of
the people WHETHER UNEMPLOYED OR EMPLOYED BY STATE OR PRIVATE
ESTABLISHMENTS.
I want to avoid also the possibility of having this interpreted as applicable only to the
employed.
MR. DE LOS REYES. Will the proponent accept an amendment to the amendment, Madam
President?
MR. LERUM. Yes, as long as it will carry the idea that the right of the employees in the
private sector is recognized.
24

Lerum thus anchored his proposal on the fact that (1) government employees, supervisory
employees, and security guards, who had the right to organize under the Industrial Peace Act, had
been denied this right by the Labor Code, and (2) there was a need to reinstate the right of these
employees. In consonance with his objective to reinstate the right of government, security, and
supervisory employees to organize, Lerum then made his proposal:
MR. LERUM. Mr. Presiding Officer, after a consultation with several Members of this
Commission, my amendment will now read as follows: "The right of the people INCLUDING
THOSE EMPLOYED IN THE PUBLIC AND PRIVATE SECTORS to form associations,

unions, or societies for purposes not contrary to law shall not be abridged. In proposing that
amendment I ask to make of record that I want the following provisions of the Labor Code to
be automatically abolished, which read:
Art. 245. Security guards and other personnel employed for the protection
and security of the person, properties and premises of the employers shall
not be eligible for membership in a labor organization.
Art. 246. Managerial employees are not eligible to join, assist, and form any
labor organization.
THE PRESIDING OFFICER (Mr. Bengzon). What does the Committee say?
FR. BERNAS. The Committee accepts.
THE PRESIDING OFFICER. (Mr. Bengzon) The Committee has accepted the amendment,
as amended.
Is there any objection? (Silence) The Chair hears none; the amendment, as amended, is
approved.
25

The question is what Commissioner Lerum meant in seeking to "automatically abolish" the then Art.
246 of the Labor Code. Did he simply want "any kind of wording as long as it will amount to absolute
recognition of private sector employees, without exception, to organize"? Or, did he instead intend
to have his words taken in the context of the cause which moved him to propose the amendment in
the first place, namely, the denial of the right of supervisory employees to organize, because he
said, "We are afraid that without any corresponding provision covering the private sector, security
guards, supervisory employees or majority [of] employees will still be excluded, and that is the
purpose of this amendment"?
26

27

It would seem that Commissioner Lerum simply meant to restore the right of supervisory employees
to organize. For even though he spoke of the need to "abolish" Art. 246 of the Labor Code which, as
already stated, prohibited "managerial employees" in general from forming unions, the fact was that
in explaining his proposal, he repeatedly referred to "supervisory employees" whose right under the
Industrial Peace Act to organize had been taken away by Art. 246. It is noteworthy that
Commissioner Lerum never referred to the then definition of "managerial employees" in Art. 212(m)
of the Labor Code which put together, under the broad phrase "managerial employees," top and
middle managers and supervisors. Instead, his repeated use of the term "supervisory employees,"
when such term then was no longer in the statute books, suggests a frame of mind that remained
grounded in the language of the Industrial Peace Act.
Nor did Lerum ever refer to the dictum in Caltex recognizing the right of all managerial employees to
organize, despite the fact that the Industrial Peace Act did not expressly provide for the right of top
and middle managers to organize. If Lerum was aware of the Caltex dictum, then his insistence on
the use of the term "supervisory employees" could only mean that he was excluding other
managerial employees from his proposal. If, on the other hand, he was not aware of the Caltex
statement sustaining the right to organize to top and middle managers, then the more should his
repeated use of the term "supervisory employees" be taken at face value, as it had been defined in
the then Industrial Peace Act.

At all events, that the rest of the Commissioners understood his proposal to refer solely to
supervisors and not to other managerial employees is clear from the following account of
Commissioner Joaquin G. Bernas, who writes:
In presenting the modification on the 1935 and 1973 texts, Commissioner Eulogio R. Lerum
explained that the modification included three categories of workers: (1) government
employees, (2) supervisory employees, and (3) security guards. Lerum made of record the
explicit intent to repeal provisions of P.D. 442, the Labor Code. The provisions referred to
were:
Art. 245. Security guards and other personnel employed for the protection
and security of the person, properties and premises of the employers shall
not be eligible for membership in a labor organization.
Art. 246. Managerial employees are not eligible to join, assist, and form any
labor organization.
28

Implications of the Lerum Proposal

In sum, Lerum's proposal to amend Art. III, 8 of the draft Constitution by including labor unions in
the guarantee of organizational right should be taken in the context of statements that his aim was
the removal of the statutory ban against security guards and supervisory employees joining labor
organizations. The approval by the Constitutional Commission of his proposal can only mean,
therefore, that the Commission intended the absolute right to organize of government workers,
supervisory employees, and security guards to be constitutionally guaranteed. By implication, no
similar absolute constitutional right to organize for labor purposes should be deemed to have been
granted to top-level and middle managers. As to them the right of self-organization may be regulated
and even abridged conformably to Art. III, 8.
Constitutionality of Art. 245
Finally, the question is whether the present ban against managerial employees, as embodied in Art.
245 (which superseded Art. 246) of the Labor Code, is valid. This provision reads:
Art. 245. Ineligibility of managerial employees to join any labor organization; right of
supervisory employees. Managerial employees are not eligible to join, assist or form any
labor organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form separate labor
organizations of their own.
29

This provision is the result of the amendment of the Labor Code in 1989 by R.A. No. 6715,
otherwise known as the Herrera-Veloso Law. Unlike the Industrial Peace Act or the provisions of the
Labor Code which it superseded, R.A. No. 6715 provides separate definitions of the terms
"managerial" and "supervisory employees," as follows:
Art. 212. Definitions. . . .
(m) "managerial employee" is one who is vested with powers or prerogatives to lay
down and execute management policies and/or to hire transfer, suspend, lay off, recall,
discharge, assign or discipline employees. Supervisory employees are those who, in the
interest of the employer, effectively recommend such managerial actions if the exercise of

such authority is not merely routinary or clerical in nature but requires the use of
independent judgment. All employees not falling within any of the above definitions are
considered rank-and-file employees for purposes of this Book.
Although the definition of "supervisory employees" seems to have been unduly restricted to the last
phrase of the definition in the Industrial Peace Act, the legal significance given to the phrase
"effectively recommends" remains the same. In fact, the distinction between top and middle
managers, who set management policy, and front-line supervisors, who are merely responsible for
ensuring that such policies are carried out by the rank and file, is articulated in the present
definition. When read in relation to this definition in Art. 212(m), it will be seen that Art. 245 faithfully
carries out the intent of the Constitutional Commission in framing Art. III, 8 of the fundamental law.
30

Nor is the guarantee of organizational right in Art. III, 8 infringed by a ban against managerial
employees forming a union. The right guaranteed in Art. III, 8 is subject to the condition that its
exercise should be for purposes "not contrary to law." In the case of Art. 245, there is a rational basis
for prohibiting managerial employees from forming or joining labor organizations. As Justice Davide,
Jr., himself a constitutional commissioner, said in hisponencia in Philips Industrial Development,
Inc. v. NLRC:
31

In the first place, all these employees, with the exception of the service engineers and the
sales force personnel, are confidential employees. Their classification as such is not
seriously disputed by PEO-FFW; the five (5) previous CBAs between PIDI and PEO-FFW
explicitly considered them as confidential employees. By the very nature of their functions,
they assist and act in a confidential capacity to, or have access to confidential matters of,
persons who exercise managerial functions in the field of labor relations. As such, the
rationale behind the ineligibility of managerial employees to form, assist or joint a labor union
equally applies to them.
In Bulletin Publishing Co., Inc. v. Hon. Augusto Sanchez, this Court elaborated on this
rationale, thus:
. . . The rationale for this inhibition has been stated to be, because if these
managerial employees would belong to or be affiliated with a Union, the latter
might not be assured of their loyalty to the Union in view of evident conflict of
interests. The Union can also become company-dominated with the
presence of managerial employees in Union membership.
32

To be sure, the Court in Philips Industrial was dealing with the right of confidential employees to
organize. But the same reason for denying them the right to organize justifies even more the ban on
managerial employees from forming unions. After all, those who qualify as top or middle managers
are executives who receive from their employers information that not only is confidential but also is
not generally available to the public, or to their competitors, or to other employees. It is hardly
necessary to point out that to say that the first sentence of Art. 245 is unconstitutional would be to
contradict the decision in that case.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Martinez and Purisima, JJ., concur.

Separate Opinions

DAVIDE, JR., J., concurring and dissenting;

I concur with the majority that the "route managers" of private respondent Pepsi-Cola Products
Philippines, Inc. are managerial employees. However, I respectfully submit that contrary to the
majority's holding, Article 245 of the Labor Code is unconstitutional, as it abridges Section 8, Article
III of the Constitution.
Section 8, Article III of the 1987 Constitution was taken from Section 7, Article IV of the 1973
Constitution which, in turn, was lifted from Section 6, Article III of the 1935 Constitution. Section 7 of
the 1973 Constitution provided as follows:
Sec. 7. The right to form associations or societies for purpose not contrary to law shall not be
abridged.
This Section was adopted in Section 7 of Proposed Resolution No. 486 of the 1986 Constitutional
Commission, entitled Resolution to Incorporate in the New Constitution an Article on the Bill of
Rights, submitted by the Committee on Citizenship, Bill of Rights, Political Rights and Obligations,
and Human Rights, with a modification, however, consisting of the insertion of the word union
between the words "associations" and "societies." Thus the proposed Section 7 provided as follows:
1

Sec. 7. The right of the people to form associations, unions, or societies for purposes not
contrary to law shall not be abridged (emphasis supplied).
Commissioner Joaquin G. Bernas, in his sponsorship speech on the proposed Article on the Bill of
Rights, expounded on the nature of the proposed provision, in this wise:
Section 7 preserves the old provision not because it is strictly needed but because its
removal might be subject to misinterpretation. It reads:
xxx

xxx

xxx

It strictly does not prepare the old provision because it adds the word UNION, and in the
explanation we received from Commissioner Lerum, the term envisions not just unions in
private corporations but also in the government. This preserves our link with the Malolos
Constitution as far as the right to form associations or societies for purposes not contrary to
law is concerned.
2

During the period of individual amendments, Commissioner Lerum introduced an amendment to the
proposed section consisting of the insertion of the clause "WHETHER EMPLOYED BY THE STATE
OR PRIVATE ESTABLISHMENTS, which, after consulting other Commissioners, he modified his
proposed amendment to read: "INCLUDING THOSE EMPLOYED IN THE PUBLIC AND PRIVATE
SECTORS." At that time, the section read:

Sec. 7. The right of the people including those employed in the public and private sectors to
form associations, unions or societies for purposes not contrary to law shall not be abridged.
Pertinently to this dispute Commissioner Lerum's intention that the amendment "automatically
abolish" Articles 245 and 246 of the Labor Code. The Committee accepted the amendment, and
there having been no objection from the floor, the Lerum amendment was approved, thus:
MR. LERUM: . . . In proposing that amendment I ask to make of record that I want the
following provisions of the Labor Code to be automatically abolished, which read:
Art. 245. Security guards and other personnel employed for the protection
and security of the person, properties and premises of the employers shall
not be eligible for membership in a labor organization.
Art. 246. Managerial employees are not eligible to join, assist, and form any
labor organization.
THE PRESIDING OFFICER (Mr. Bengzon):
What does the Committee say?
FR. BERNAS: The Committee accepts.
THE PRESIDING OFFICER (Mr. Bengzon):
The Committee has accepted the amendment, as amended.
Is there any objection? (Silence) The Chair hears none; the amendment, as
amended, is approved.
3

The Committee on Style then recommended that commas be placed after the words people and
sectors, while Commissioner Lerum likewise moved to place the word unions before the word
associations. Section 7, which was subsequently renumbered as Section 8 as presently appearing
in the text ratified in the plebiscite of 2 February 1987, then read as follows:
4

The right of the people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be abridged.
It is then indubitably clear from the foregoing that the intent of the Constitutional Commission was to
abrogate the law prohibiting managerial employees from joining, assisting, or forming unions or
labor organizations. In this regard, there is absolutely no need to decipher the intent of the framers
of the 1987 Constitution vis-a-vis Article 245 (originally 246) of the Labor Code, there being no
ambiguity or vagueness in the wording of the present Section 8, Article III of the 1987 Constitution.
The provision is clear and written in simple language; neither were there any confusing debates
thereon. More importantly, the purpose of Commissioner Lerum's amendments was unequivocal: he
did not merely intend an implied repeal, but an express repeal of the offending article of the Labor
Code. The approval of the amendments left no doubt whatsoever, as faithfully disclosed in the
Records of the Constitutional Commission, that all employees meaning rank-and-file, supervisory
and managerial whether from the public or the private sectors, have the right to form unions for
purposes not contrary to law.

The Labor Code referred to by Commissioner Lerum was P.D. No. 442, promulgated on 1 May 1974.
With the repeal of Article 239 by Executive Order No. 111 issued on 24 December 1986, Article 246
(as mentioned by Commissioner Lerum) became Article 245. Thereafter, R.A. No. 6715 amended
the new Article 245 (originally Article 246) to read, as follows:
5

Sec. 245. Ineligibility of managerial employees to join any labor organization; right of
supervisory employees. Managerial employees are not eligible to join, assist or form any
labor organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form separate labor
organizations of their own.
7

With the abrogation of the former Article 246 of the Labor Code, and the constitutional prohibition
against any law prohibiting managerial employees from joining, assisting or forming unions or labor
organizations, the first sentence then of the present Article 245 of the Labor Code must be struck
down as unconstitutional. However, due to an obvious conflict of interest being closely identified
with the interests of management in view of the inherent nature of their functions, duties and
responsibilities managerial employees may only be eligible to join, assist or form unions or labor
organizations of their own rank, and not those of the supervisory employees nor the rank-and-file
employees.
8

In the instant case, the petitioner's name United Pepsi-Cola Supervisory Union (UPSU)
indubitably attests that it is a union of supervisory employees. In light of the earlier discussion,
the route managers who aremanagerial employees, cannot join or assist UPSU. Accordingly, the
Med-Arbiter and public respondent Laguesma committed no error in denying the petition for direct
certification or for certification election.
I thus vote to GRANT, IN PART, the instant petition. That portion of the challenged resolution of
public respondent holding that since the route managers of private respondent Pepsi-Cola Products
Philippines, Inc., are managerial employees, they are "not eligible to assist, join or form a union or
any other organization" should be SET ASIDE for being violative of Section 8 of Article III of the
Constitution, while that portion thereof denying petitioner's appeal from the Med-Arbiter's decision
dismissing the petition for direct certification or for a certification election should be AFFIRMED.
PUNO, J., separate concurring;
With due respect, it is my submission that Article 245 of the Labor Code was not repealed by section
8, Article III of the 1987 Constitution for reasons discussed below.
A. Types of Employees.
For purposes of applying the law on labor relations, the Labor Code in Article 212 (m) defines three
(3) categories of employees. They are managerial, supervisory and rank-and-file, thus:
Art. 212 (m). "Managerial Employee" is one who is vested with powers or prerogatives to lay
down and execute management policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees. "Supervisory employees" are those who, in the
interest of the employer, effectively recommended such managerial actions if the exercise of
such authority is not merely routinary or clerical in nature but requires the use of
independent judgment. All employees not falling within any of the above definitions are
considered rank-and-file employees for purposes of this Book.

The test of "managerial" or "supervisory" status depends on whether a person possesses authority
to act in the interest of his employer and whether such authority is not routinary or clerical in nature
but requires the use of independent judgment. The rank-and-file employee performs work that is
routinary and clerical in nature. The distinction between these employees is significant because
supervisory and rank-and-file employees may form, join or assist labor organizations. Managerial
employees cannot.
1

B. The Exclusion of Managerial Employees: Its Historical Roots in the United States.
The National Labor Relations Act (NLRA), also known as the Wagner Act, enacted by the U.S.
Congress in 1935, was the first law that regulated labor relations in the United States and embodied
its national labor policy. The purpose of the NLRA was to eliminate obstructions to the free flow of
commerce through the practice of collective bargaining. The NLRA also sought to protect the
workers' full freedoms of association, self-organization, and designation of representatives of their
own choosing, for the purpose of negotiating the terms and conditions of their employment or other
mutual aid and protection. The NLRA established the right of employees to organize, required
employers to bargain with employees collectively through employee-elected representatives, gave
employees the right to engage in concerted activities for collective bargaining purposes or other
mutual aid or protection, and created the National Labor Relations Board (NLRB) as the regulatory
agency in labor-management matters.
2

The NLRA was amended in 1947 by the Labor Management Relations Act (LMRA), also known as
the Taft-Hartley Act. This Act sought to lessen industrial disputes and placed employers in a more
nearly equal position with unions in bargaining and labor relations procedures.
5

The NLRA did not make any special provision for "managerial employees." The privileges and
benefits of the Act were conferred on "employees." Labor organizations thus clamored for the
inclusion of supervisory personnel in the coverage of the Act on the ground that supervisors were
also employees. Although traditionally, supervisors were regarded as part of management, the
NLRB was constrained to recognize supervisors as employees under the coverage of the law.
Supervisors were then granted collective bargaining rights. Nonetheless, the NLRB refused to
consider managers as covered by the law.
6

The LMRA took away the collective bargaining rights of supervisors. The sponsors of the
amendment feared that their unionization would break down industrial discipline as it would blur the
traditional distinction between management and labor. They felt it necessary to deny supervisory
personnel the right of collective bargaining to preserve their loyalty to the interests of their
employers.
9

Several amendments were later made on the NLRA but the exclusion of managers and supervisors
from its coverage was preserved. Until now managers and supervisors are excluded from the
law. Their exclusion hinges on the theory that the employer is entitled to the full loyalty of those
whom it chooses for positions of responsibility, entailing action on the employers' behalf. A
supervisor's and manager's ability to control the work of others would be compromised by his
sharing of employee status with them.
10

11

C. Historical Development in the Philippines.

Labor-management relations in the Philippines were first regulated under the Industrial Peace
Act which took effect in 1953. Hailed as the Magna Carta of Labor, it was modelled after the NLRA
and LMRA of the United States. Most of the basic principles of the NLRA have been carried over to
the Industrial Peace Act and the Labor Code. This is significant because we have ruled that where
12

13

14

our labor statutes are based on statutes in foreign jurisdiction, the decisions of the high courts in
those jurisdictions construing and interpreting the Act are given persuasive effects in the application
of Philippine law.
15

The Industrial Peace Act did not carry any provision prohibiting managerial employees from joining
labor organizations. Section 3 of said law merely provided:
Sec. 3. Employees' Right to Self-Organization. Employees shall have the right to selforganization and to form, join or assist labor organizations of their own choosing for the
purpose of collective bargaining through representatives of their own choosing and to
engage in concerted activities for the purpose of collective bargaining and other mutual aid
and protection. Individuals employed as supervisors shall not be eligible for membership in a
labor organization of employees under their supervision but may form separate
organizations of their own.
Significantly, the Industrial Peace Act did not define a manager or managerial employee. It defined a
"supervisor" but not a "manager." Thus:
Sec. 2. . . .
(k) "Supervisor" means any person having authority in the interest of an employer, to hire,
transfer, suspend, lay-off, recall, discharge, assign, recommend, or discipline other
employees, or responsibly to direct them, and to adjust their grievances, or effectively to
recommend such acts, if, in connection with the foregoing, the exercise of such authority is
not of a merely routinary or clerical nature but requires the use of independent judgment.
In 1972, we interpreted Section 3 of the Industrial Peace Act to give supervisors the right to join and
form labor organizations of their own. Soon we grappled with the right of managers to organize. In a
case involving Caltex managers, we recognized their right to organize, viz:
16

It would be going too far to dismiss summarily the point raised by respondent company, that
of the alleged identity of interest between the managerial staff and the employing firm. That
should ordinarily be the case, especially so where the dispute is between management and
the rank-and-file. It does not necessarily follow though that what binds the managerial staff
to the corporation forecloses the possibility of conflict between them. There could be a real
difference between what the welfare of such group requires and the concessions the firm is
willing to grant. Their needs might not be attended to then in the absence of any organization
of their own. Nor is this to indulge in empty theorizing. The records of respondent company,
even the very case cited by it, is proof enough of their uneasy and troubled relationship.
Certainly the impression is difficult to erase that an alien firm failed to manifest sympathy for
the claims of its Filipino executives.
17

The Industrial Peace Act was repealed in 1975 by P.D. 442, the Labor Code of the Philippines. The
Labor Code changed existing jurisprudence when it prohibited supervisory and managerial
employees from joining labor organizations. Supervisory unions were no longer recognized nor
allowed to exist and operate as such. We affirmed this statutory change in Bulletin Publishing
Corp. v. Sanchez. Similarly, Article 246 of the Labor Code expressly prohibited managerial
employees from forming, assisting and joining labor organizations, to wit:
18

19

Art. 246. Ineligibility of managerial employees to join any labor organization. Managerial
employees are not eligible to join, assist or form any labor organization.

In the same Bulletin case, the Court applied Article 246 and held that managerial employees are the
very type of employees who, by the nature of their positions and functions, have been decreed
disqualified from bargaining with management. This prohibition is based on the rationale that if
managerial employees were to belong or be affiliated with a union, the union might not be assured
of their loyalty in view of evident conflict of interest or that the union can be company-dominated with
the presence of managerial employees in the union membership. In the collective bargaining
process, managerial employees are supposed to be on the side of the employer, to act as its
representative, and to see to it that its interests are well protected. The employer is not assured of
such protection if these employees themselves become union members.
20

21

The prohibition on managerial employees to join, assist or form labor organizations was retained in
the Labor Code despite substantial amendments made in 1989 by R.A. 6715, the Herrera-Veloso
Law. R.A. 6715 was passed after the effectivity of the 1987 Constitution and this law did not
abrogate, much less amend the prohibition on managerial employees to join labor
organizations. The express prohibition in Article 246 remained.However, as an addendum to this
same Article, R.A. 6715 restored to supervisory employees the right to join labor organizations of
their own. Article 246 now reads:
22

Art. 246. Ineligibility of managerial employees to join any labor organization; right of
supervisory employees. Managerial employees are not eligible to join, assist or form any
labor organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form separate labor
organizations of their own.
Article 246 became Article 245 after then Article 244 was repealed by E.O. 111. Article 246 is
presently Article 245 of the Labor Code.
Indeed, Article 245 of the Labor Code prohibiting managerial employees from joining labor
organizations has a social and historical significance in our labor relations law. This significance
should be considered in deciphering the intent of the framers of the 1987 Constitution vis-a-vis the
said Article.
With due respect, I do not subscribe to the view that section 8, Article III of the Constitution
abrogated Article 245 of the Labor Code. A textual analysis of section 8, Article III of the Constitution
will not justify this conclusion. With due respect, the resort by Mr. Justice Davide to the deliberations
of the Constitutional Commission does not suffice. It is generally recognized that debates and other
proceedings in a constitutional convention are of limited value and are an unsafe guide to the intent
of the people. Judge Cooley has stated that:
23

When the inquiry is directed to ascertaining the mischief designed to be remedied, or the
purpose sought to be accomplished by a particular provision, it may be proper to examine
the proceedings of the convention which framed the instrument. Where the proceedings
clearly point out the purpose of the provision, the aid will be valuable and satisfactory; but
where the question is one of abstract meaning, it will be difficult to derive from this source
much reliable assistance in interpretation. Every member of such a convention acts upon
such motives and reasons as influence him personally, and the motions and debates do not
necessarily indicate the purpose of a majority of a convention in adopting a particular clause.
It is quite possible for a particular clause to appear so clear and unambiguous to the
members of the convention as to require neither discussion nor illustration; and the few
remarks made concerning it in the convention might have a plain tendency to lead directly
away from the meaning in the minds of the majority. It is equally possible for a part of the
members to accept a clause in one sense and a part in another. And even if we were certain

we had attained to the meaning of the convention, it is by no means to be allowed a

controlling force, especially if that meaning appears not to be the one which the words would
most naturally and obviously convey. For as the constitution does not derive its force from
the convention which framed, but from the people who ratified it, the intent to be arrived at is
that of the people, and it is not to be supposed that they have looked for any dark and
abstruse meaning in the words employed, but rather that they have accepted them in the
sense most obvious to the common understanding, and ratified the instrument in the belief
that was the sense designed to be conveyed.
24

It is for this reason that proceedings of constitutional conventions are less conclusive of the proper
construction of the instrument than are legislative proceedings of the proper construction of the
statute. In the statutes, it is the intent of the legislature that is being sought, while in constitutions, it
is the intent of the people that is being ascertained through the discussions and deliberations of their
representatives. The proper interpretation of constitutional provisions depends more on how it was
understood by the people adopting it than in the framers' understanding thereof.
25

26

27

Thus, debates and proceedings of the constitutional convention are never of binding force. They
may be valuable but are not necessarily decisive. They may shed a useful light upon the purpose
sought to be accomplished or upon the meaning attached to the words employed. And the courts
are free to avail themselves of any light that may be derived from such sources, but they are not
bound to adopt it as the sole ground of their decision.
28

29

Clearly then, a statute cannot be declared void on the sole ground that it is repugnant to a supposed
intent or spirit declared in constitutional convention proceedings.
D. Freedom of Association
The right of association flows from freedom of expression. Like the right of expression, the exercise
of the right of association is not absolute. It is subject to certain limitations.
30

Article 243 of the Labor Code reiterates the right of association of people in the labor sector. Article
243 provides:
Art. 243. Coverage of employees' right to self-organization. All persons employed in
commercial, industrial and agricultural enterprises and in religious, charitable, medical, or
educational institutions whether operating for profit or not, shall have the right to selforganization and to form, join, or assist labor organizations of their own choosing for
purposes of collective bargaining. Ambulant, intermittent and itinerant workers, selfemployed people, rural workers and those without any definite employers may form labor
organizations for their mutual aid and protection.
Article 243 guarantees the right to self-organization and association to "all persons." This seemingly
all-inclusive coverage of "all persons," however, actually admits of exceptions.
Article 244 of the Labor Code mandates that all employees in the civil service, i.e, those not
employed in government corporations established under the Corporation Code, may only form
associations but may not collectively bargain on terms and conditions fixed by law. An employee of a
cooperative who is a member and co-owner thereof cannot invoke the right of collective bargaining
and negotiation vis-a-vis the cooperative. An owner cannot bargain with himself or his coowners. Employees in foreign embassies or consulates or in foreign international organizations
granted international immunities are also excluded from the right to form labor
organizations. International organizations are organized mainly as a means for conducting general
31

32

33

34

international business in which the member-states have an interest and the immunities granted them
shield their affairs from political pressure or control by the host country and assure the unimpeded
performance of their functions.
35

Confidential employees have also been denied the right to form labor-organizations. Confidential
employees do not constitute a distinct category for purposes of organizational right. Confidentiality
may attach to a managerial or non-managerial position. We have, however, excluded confidential
employees from joining labor organizations following the rationale behind the disqualification of
managerial employees in Article 245. In the case of National Association of Trade Unions-Republic
Planters' Bank Supervisors Chapter v. Torres, we held:
36

In the collective bargaining process, managerial employees are supposed to be on the side
of the employer, to act as its representatives, and to see to it that its interests are well
protected. The employer is not assured of such protection if these employees themselves
are union members. Collective bargaining in such a situation can become one-sided. It is the
same reason that impelled this Court to consider the position of confidential employees as
included in the disqualification found in Article 245 as if the disqualification of confidential
employees were written in the provision. If confidential employees could unionize in order to
bargain for advantages for themselves, then they could be governed by their own motives
rather than the interest of the employers. Moreover, unionization of confidential employees
for the purpose of collective bargaining would mean the extension of the law to persons or
individuals who are supposed to act "in the interest of" the employers. It is not farfetched that
in the course of collective bargaining, they might jeopardize that interest which they are dutybound to protect.
37

E. The disqualification extends only to labor organizations.

It must be noted that Article 245 of the Labor Code deprives managerial employees of their right to
join "labor organizations." A labor organization is defined under the Labor Code as:
Art. 212 (g). "Labor organization" means any union or association of employees which exists
in whole or in part for the purpose of collective bargaining or of dealing with the employer
concerning terms and conditions of employment.
A labor organization has two broad rights: (1) to bargain collectively and (2) to deal with the
employer concerning terms and conditions of employment. To bargain collectively is a right given to
a labor organization once it registers itself with the Department of Labor and Employment (DOLE).
Dealing with the employer, on the other hand, is a generic description of interaction between
employer and employees concerning grievances, wages, work hours and other terms and conditions
of employment, even if the employees' group is not registered with the DOLE. Any labor
organization which may or may not be a union may deal with the employer. This explains why a
workers' Organization does not always have to be a labor union and why employer-employee
collective interactions are not always collective bargaining.
38

39

In the instant case, it may be argued that managerial employees' labor organization will merely "deal
with the employer concerning terms and conditions of employment" especially when top
management is composed of aliens, following the circumstances in the Caltex case.
Although the labor organization may exist wholly for the purpose of dealing with the employer
concerning terms and conditions of employment, there is no prohibition in the Labor Code for it to
become a legitimate labor organization and engage in collective bargaining. Once a labor

organization registers with the DOLE and becomes legitimate, it is entitled to the rights accorded
under Articles 242 and 263 (b) of the Labor Code. And these include the right to strike and picket.
Notably, however, Article 245 does not absolutely disqualify managerial employees from exercising
their right of association. What it prohibits is merely the right to join labor organizations. Managerial
employees may form associations or organizations so long as they are not labor organizations. The
freedom of association guaranteed under the Constitution remains and has not been totally
abrogated by Article 245.
To declare Article 245 of the Labor Code unconstitutional cuts deep into our existing industrial life
and will open the floodgates to unionization at all levels of the industrial hierarchy. Such a ruling will
wreak havoc on the existing set-up between management and labor. If all managerial employees will
be allowed to unionize, then all who are in the payroll of the company, starting from the president,
vice-president, general managers and everyone, with the exception of the directors, may go on
strike or picket the
employer. Company officers will join forces with the supervisors and rank-and-file. Management
and labor will become a solid phalanx with bargaining rights that could be enforced against the
owner of the company. The basic opposing forces in the industry will not be management and labor
but the operating group on the one hand and the stockholder and bondholder group on the other.
The industrial problem defined in the Labor Code comes down to a contest over a fair division of the
gross receipts of industry between these two groups. And this will certainly bring ill-effects on our
economy.
40

41

42

The framers of the Constitution could not have intended a major upheaval of our labor and socioeconomic systems. Their intent cannot be made to override substantial policy considerations and
create absurd or impossible situations. A constitution must be viewed as a continuously operative
charter of government. It must not be interpreted as demanding the impossible or the impracticable;
or as effecting the unreasonable or absurd. Courts should always endeavour to give such
interpretation that would make the constitutional provision and the statute consistent with reason,
justice and the public interest.
43

44

45

I vote to dismiss the petition.

VITUG, J., separate concurring and dissenting;
The pivotal issues raised in the case at bar, aptly stated by the Office of the Solicitor General, are:
(1) Whether or not public respondent, Undersecretary of the Department of Labor and Employment
("DOLE") Bienvenido E. Laguesma, gravely abused his discretion in categorizing the members of
petitioner union to be managerial employees and thus ineligible to form or join labor organizations;
and
(2) Whether or not the provision of Article 245 of the Labor Code, disqualifying managerial
employees from joining, assisting or forming any labor organization, violates Section 8, Article III, of
the 1987 Constitution, which expresses that "(t)he right of the people, including those employed in
public and private sectors to form unions, associations or societies for purposes not contrary to law
shall not be abridged."
The case originated from a petition for direct certification or certification election among route
managers/supervisory employees of Pepsi-Cola Products Phils., Inc. ("Pepsi"), filed by the United
Pepsi-Cola Supervisory Union ("Union"), claiming to be a legitimate labor organization duly
registered with the Department of Labor and Employment under Registration Certificate No. NCR-

UR-3-1421-95. Pepsi opposed the petition on the thesis that the case was no more than a mere
duplication of a previous petition for direct certification filed by the same route managers through the
Pepsi-Cola Employees Association (PCEA-Supervisory) which petition had already been denied by
Undersecretary Laguesma. The holding reiterated a prior decision in Workers Alliance Trade Unions
("WATU") vs. Pepsi-Cola Products Phils., Inc., that route managers were managerial employees.
1

In its decision, dated 05 May 1995, Med-Arbiter Brigida C. Fadrigon dismissed for lack of merit the
petition of the Union, stating that the issue on the proper classification and status of route managers
had already been ruled with finality in the previous decisions, aforementioned, rendered by DOLE.
The union appealed the decision. In his resolution of 31 August 1995, Undersecretary Laguesma
dismissed the appeal, saying that there was no compelling reason to abandon the ruling in the two
old cases theretofore decided by DOLE. In his order of 22 September 1995, Undersecretary
Laguesma denied the Union's motion for reconsideration.
The Union went to this Court, via a petition for certiorari, assailing the cancellation of its certificate of
registration. The Court, after considering the petition and the comments thereon filed by both public
and private respondents, as well as the consolidated reply of petitioner, dismissed the case in its
resolution of 08 July 1996 on the premise that no grave abuse of discretion had been committed by
public respondent.
Undaunted, the Union moved, with leave, for the reconsideration of the dismissal of its petition by
the Court En Banc. In its resolution of 16 June 1997, the case was referred to the Court En Banc en
consulta with the movant's invocation of unconstitutionality of Article 245 of the Labor Code vis-avis Section 8, Article III, of the 1987 Constitution.
There is merit, in my view, in petitioner's motion for reconsideration but not on constitutional
grounds.
There are, in the hierarchy of management, those who fall below the level of key officers of an
enterprise whose terms and conditions of employment can well be, indeed are not infrequently,
provided for in collective bargaining agreements. To this group belong the supervisory employees.
The "managerial employees," upon the other hand, and relating the matter particularly to the Labor
Code, are those "vested with powers or prerogatives to lay down and execute management policies
and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees" as
distinguished from the supervisory employees whose duties in these areas are so designed as to
verily be implementary to the policies or rules and regulations already outstanding and priorly taken
up and passed upon by management. The managerial level is the source, as well as prescribes the
compliance, of broad mandates which, in the field of labor relations, are to be carried out through the
next rank of employees charged with actually seeing to the specific personnel action required. In
fine, the real authority, such as in hiring or firing of employees, comes from management and
exercised by means of instructions, given in general terms, by the "managerial employees;" the
supervisory employees, although ostensibly holding that power, in truth, however, only act in
obedience to the directives handed down to them. The latter unit, unlike the former, cannot be
considered the alter ego of the owner of enterprise.
The duties and responsibilities of the members of petitioner union, shown by their "job description"
below
PCPPI
RM's JOB DESCRIPTION

A. GENERAL/OVERALL OBJECTIVE OF THIS POSITION

To contribute to the growth and profitability of PCPPI via well-selected,
trained and motivated Route Sales Team who sell, collect and merchandise,
following the Pepsi Way, and consistent with Company policies and
procedures as well as the corporate vision of Customer Satisfaction.
B. SPECIFIC JOB DESCRIPTION:
KEY RESULT AREAS STANDARD OR PERFORMANCE
SALES VOLUME *100% Vs. NRC Target
_____% NTG
DISTRIBUTION * Product Availability
70% Pepsi
80% Seven-Up
40% Mirinda
65% Mt. Dew
5% Out of Stock
ACCOUNTS RECEIVABLE 65% Current (Incl. Legal & Col.)
MANAGEMENT 80:20 Cash to Credit Ratio
DSO assigned Std. to Division
by the District
ASSET MANAGEMENT 30 cases for ice-coolers
80 cases for electric coolers
BLOWAGA on Division Vehicles
60 cases on Rolling/Permanent
Kiosks
TRADE DEVELOPMENT 100% Buying Customers Based
on master list that bought once

5 months payback on concessions

4 CED's/Rte.
EXPENSE MANAGEMENT a). 5% Absentism rate Excl. VL
b). 280 cases/route/day
c). 15% cost-to-sales ratio
ROUTE MANAGEMENT 3 Days on RR/Wk
Days on BC-SC- Financial &
Co. Assets
Days on TD
75% Load Factor
18 Productive Calls
CUSTOMER SATISFACTION Customer Complaint attended to within the
next working day
HUMAN RESOURCE 5% Absentism Excl. VL
MANAGEMENT (approved) 3 Documented RR/
Week using SLM's Training Log
ADMINISTRATIVE Complete, timely and accurate
MANAGEMENT reports.
PCPPI
RM's BASIC DAILY ACTIVITIES
A. AT THE SALES OFFICE
1. PRACTICES BLOWAGA ON SERVICE VEHICLE (AT HOME)
2. REPORTS FOR WORK ON OR BEFORE 6:15 A.M.
3. REPORTS IN CLEAN AND NEAT UNIFORM (GOOD GROOMING)
4. DAILY BRIEFING WITH THE DM

5. CONDUCTS SKILLS ENHANCEMENT OR HUDDLES WITH RST's

a). ATTENDANCE/GROOMING
b). OPERATIONAL DIRECTIONS & PRIORITIES
c). ANNOUNCEMENT
6. RM's PRESENCE DURING CHECK-OUT
a). SLM PRACTICES BLOWAGA ON ROUTE TRUCK
b). PRIVATE COUNSELING WITH RST (AM & PM IF
NECESSARY)
c). PROPER HANDLING OF SELLING/MDSG. MATERIALS
d). YESTERDAY's FINAL SETTLEMENT REVIEW
7. UPDATE REPORTS, MONITORS, DOCUMENTS & TELEPHONE
CONMATION
8. ATTENDS TO PRODUCT COMPLAINTS (GFM)
9. CONDUCTS ADMINISTRATIVE INVESTIGATION OR ATTENDS DM's
MEETING (on Saturdays)
B. FIELD WORK
ROUTE RIDE
1. CHECKS SLMS. TRAINING LOG (PROGRESS & DEV'T.)
2. SALESMAN's CPC
3. ROUTE COVERAGE EVALUATION
4. LOAD FACTOR
5. SALESMAN's ROUTING SYSTEM EVALUATION
BC/SC
1. FINANCIAL & ASSET VERIFICATION, CONFIRMATION & AUDIT
2. BACKCHECKS FIRST 5 CUSTOMERS SERVED FOR THE DAY
a). MERCHANDISING

b). SERVICING
c). RM's TERRITORY FAMILIARITY
d). KEY ACCOUNTS GOODWILL
TRADE DEVELOPMENT
1. PREPARATION PRIOR TO CALL
2. ACTUAL CALL
3. POST CALL ANALYSIS
(HOW DID I FARE? WHY? WHAT ACTIONS TO TAKE)
4. FOLLOW-UP ACTION
C. AT CLOSE OF DAY
1. MAINTAINS & UPDATES CORRECT & ACCURATE RECORDS &
REPORTS
2. RM-SLM DEBRIEFING
3. SLR DISCUSSION (BASED ON A.M. SLR)
4. COORDINATES WITH DM ON PLANS & PROGRAMS
5. PREPARATIONS FOR NEXT DAY's ACTIVITIES

convey no more than those that are aptly consigned to the "supervisory" group by the relatively
small unit of "managerial" employees. Certain portions of a pamphlet, the so-called "Route Manager
Position Description" referred to by Mr. Justice Vicente Mendoza, in his ponencia, hereunder
reproduced for easy reference, thus
A. BASIC PURPOSE
A Manager achieves objectives through others.
As a Route Manager, your purpose is to meet the sales plan; and you
achieve this objective through the skillful management of your job and the
management of your people.
These then are your functions as Pepsi-Cola Route Manager. Within these
functions managing your job and managing your people you are
accountable to your District Manager for the execution and completion of
various tasks and activities which will make it possible for you to achieve
your sales objectives.

B. PRINCIPAL ACCOUNTABILITIES
1.0 MANAGING YOUR JOB
The Route Manager is accountable for the following:
1.1 SALES DEVELOPMENT
1.1.1 Achieve the sales plan.
1.1.2 Achieve all distribution and new account
objectives.
1.1.3 Develop new business opportunities
thru personal contacts with dealers.
1.1.4 Inspect and ensure that all
merchandising objectives are achieved in all
outlets.
1.1.5 Maintain and improve productivity of all
cooling equipment and kiosks.
1.1.6 Execute and control all authorized
promotions.
1.1.7 Develop and maintain dealer goodwill.
1.1.8 Ensure all accounts comply with
company suggested retail pricing.
1.1.9 Study from time to time individual route
coverage and productivity for possible
adjustments to maximize utilization of
resources.
1.2 Administration
1.2.1 Ensure the proper loading of route
trucks before check-out and the proper sorting
of bottles before check-in.
1.2.2 Ensure the upkeep of all route sales
reports and all other related reports and forms
required on an accurate and timely basis.
1.2.3 Ensure proper implementation of the
various company policies and procedures
include but not limited to shakedown; route
shortage; progressive discipline; sorting;

spoilages; credit/collection; accident;

attendance.
1.2.4 Ensure collection of receivables and
delinquent accounts.
2.0 MANAGING YOUR PEOPLE
The Route Manager is accountable for the following:
2.1 Route Sales Team Development
2.1.1 Conduct route rides to train, evaluate
and develop all assigned route salesmen and
helpers at least 3 days a week, to be
supported by required route ride
documents/reports & back check/spot check
at least 2 days a week to be supported by
required documents/reports.
2.1.2 Conduct sales meetings and morning
huddles. Training should focus on the
enhancement of effective sales and
merchandising techniques of the salesmen
and helpers. Conduct group training at least 1
hour each week on a designated day and of
specific topic.
2.2 Code of Conduct
2.2.1 Maintain the company's reputation
through strict adherence to PCPPI's code of
conduct and the universal standards of
unquestioned business ethics.
offer nothing at all that can approximate the authority and functions of those who actually and
genuinely hold the reins of management.
I submit, with due respect, that the members of petitioning union, not really being "managerial
employees" in the true sense of the term, are not disqualified from forming or joining labor
organizations under Article 245 of the Labor Code.
I shall now briefly touch base on the constitutional question raised by the parties on Article 245 of
the Labor Code.
The Constitution acknowledges "the right of the people, including those employed in the public and
private sectors, to form unions, associations or societies for purposes not contrary to
law . . . ." Perforce, petitioner claims, that part of Article 245 of the Labor Code which states:
"Managerial employees are not eligible to join, assist or form any labor organization," being in direct
collision with the Constitutional provision, must now be declared abrogated in the law.
4

Frankly, I do not see such a "direct collision." The Constitution did not obviously grant a limitless
right "to form unions, associations or societies" for it has clearly seen it fit to subject its exercise to
possible legislative judgment such as may be appropriate or, to put it in the language of the
Constitution itself, to "purposes not contrary to law."
Freedom of association, like freedom of expression, truly occupies a choice position in the hierarchy
of constitutional values. Even while the Constitution itself recognizes the State's prerogative to
qualify this right, heretofore discussed, any limitation, nevertheless, must still be predicated on the
existence of a substantive evil sought to be addressed. Indeed, in the exercise of police power, the
State may, by law, prescribe proscriptions, provided reasonable and legitimate of course, against
even the most basic rights of individuals.
6

The restriction embodied in Article 245 of the Labor Code is not without proper rationale.
Concededly, the prohibition to form labor organizations on the part of managerial employees
narrows down their freedom of association. The very nature of managerial functions, however,
should preclude those who exercise them from taking a position adverse to the interest they are
bound to serve and protect. The mere opportunity to undermine that interest can validly be
restrained. To say that the right of managerial employees to form a "labor organization" within the
context and ambit of the Labor Code should be deemed totally separable from the right to bargain
collectively is not justified by related provisions of the Code. For instance
Art. 212. Definitions. . . .
7

(g) "Labor organization" means any union or association of employees which exists in whole
or in part for the purpose of collective bargaining or of dealing with employers concerning
terms and conditions of employment.
xxx

xxx

xxx

(m) "Managerial employee" is one who is vested with powers or prerogatives to lay down
and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge,
assign or discipline employees. Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the exercise of such authority is
not merely routinely or clerical in nature but requires the use of independent judgment. All
employees not falling within any of the above definitions are considered rank-and-file
employees for purposes of this Book.
Art. 263. . . .
(b) Workers shall have the right to engage in concerted activities for purposes of collective
bargaining or for their mutual benefit and protection. The right of legitimate labor
organizations to strike and picket and of employers to lockout, consistent with the national
interest, shall continue to be recognized and respected.
The maxim "ut res magis quam pereat" requires not merely that a statute should be given such a
consequence as to be deemed whole but that each of its express provisions equally should be given
the intended effect.
I find it hard to believe that the fundamental law could have envisioned the use by managerial
employees of coercive means against their own employers over matters entrusted by the latter to
the former. Whenever trust and confidence is a major aspect of any relationship, a conflict of interest

on the part of the person to whom that trust and confidence is reposed must be avoided and when,
unfortunately, it does still arise its containment can rightly be decreed.
Article 245 of the Labor Code indeed aligns itself to the Corporation Code, the basic law on by far
the most commonly used business vehicle the corporation which prescribes the tenure of
office, as well as the duties and functions, including terms of employment (governed in most part by
the Articles of Incorporation, the By-laws of the Corporation, or resolutions of the Board of Directors),
of corporate officers for both the statutory officers,i.e., the president, the treasurer and the corporate
secretary, and the non-statutory officers, i.e., those who occupy positions created by the corporate
by-laws who are deemed essential for effective management of the enterprise. I cannot imagine
these officers as being legally and morally capable of associating themselves into a labor
organization and asserting collective bargaining rights against the very entity in whose behalf they
act and are supposed to act.
I submit, accordingly, that, firstly, the members of petitioner union or the so-called route managers,
being no more than supervisory employees, can lawfully organize themselves into a labor union
within the meaning of the Labor Code, and that, secondly, the questioned provision of Article 245 of
the Labor Code has not been revoked by the 1987 Constitution.
WHEREFORE, I vote, given all the foregoing, for the reversal of the resolution of 31 August 1995,
and the order of 22 September 1995, of public respondent.
Kapunan, Panganiban and Quisumbing, JJ., concur and dissent.

Separate Opinions
DAVIDE, JR., J., concurring and dissenting;
I concur with the majority that the "route managers" of private respondent Pepsi-Cola Products
Philippines, Inc. are managerial employees. However, I respectfully submit that contrary to the
majority's holding, Article 245 of the Labor Code is unconstitutional, as it abridges Section 8, Article
III of the Constitution.
Section 8, Article III of the 1987 Constitution was taken from Section 7, Article IV of the 1973
Constitution which, in turn, was lifted from Section 6, Article III of the 1935 Constitution. Section 7 of
the 1973 Constitution provided as follows:
Sec. 7. The right to form associations or societies for purpose not contrary to law shall not be
abridged.
This Section was adopted in Section 7 of Proposed Resolution No. 486 of the 1986 Constitutional
Commission, entitled Resolution to Incorporate in the New Constitution an Article on the Bill of
Rights, submitted by the Committee on Citizenship, Bill of Rights, Political Rights and Obligations,
and Human Rights, with a modification, however, consisting of the insertion of the word union
between the words "associations" and "societies." Thus the proposed Section 7 provided as follows:
1

Sec. 7. The right of the people to form associations, unions, or societies for purposes not
contrary to law shall not be abridged (emphasis supplied).

Commissioner Joaquin G. Bernas, in his sponsorship speech on the proposed Article on the Bill of
Rights, expounded on the nature of the proposed provision, in this wise:
Section 7 preserves the old provision not because it is strictly needed but because its
removal might be subject to misinterpretation. It reads:
xxx

xxx

xxx

It strictly does not prepare the old provision because it adds the word UNION, and in the
explanation we received from Commissioner Lerum, the term envisions not just unions in
private corporations but also in the government. This preserves our link with the Malolos
Constitution as far as the right to form associations or societies for purposes not contrary to
law is concerned.
2

During the period of individual amendments, Commissioner Lerum introduced an amendment to the
proposed section consisting of the insertion of the clause "WHETHER EMPLOYED BY THE STATE
OR PRIVATE ESTABLISHMENTS, which, after consulting other Commissioners, he modified his
proposed amendment to read: "INCLUDING THOSE EMPLOYED IN THE PUBLIC AND PRIVATE
SECTORS." At that time, the section read:
Sec. 7. The right of the people including those employed in the public and private sectors to
form associations, unions or societies for purposes not contrary to law shall not be abridged.
Pertinently to this dispute Commissioner Lerum's intention that the amendment "automatically
abolish" Articles 245 and 246 of the Labor Code. The Committee accepted the amendment, and
there having been no objection from the floor, the Lerum amendment was approved, thus:
MR. LERUM: . . . In proposing that amendment I ask to make of record that I want the
following provisions of the Labor Code to be automatically abolished, which read:
Art. 245. Security guards and other personnel employed for the protection
and security of the person, properties and premises of the employers shall
not be eligible for membership in a labor organization.
Art. 246. Managerial employees are not eligible to join, assist, and form any
labor organization.
THE PRESIDING OFFICER (Mr. Bengzon):
What does the Committee say?
FR. BERNAS: The Committee accepts.
THE PRESIDING OFFICER (Mr. Bengzon):
The Committee has accepted the amendment, as amended.
Is there any objection? (Silence) The Chair hears none; the amendment, as
amended, is approved.
3

The Committee on Style then recommended that commas be placed after the words people and
sectors, while Commissioner Lerum likewise moved to place the word unions before the word
associations. Section 7, which was subsequently renumbered as Section 8 as presently appearing
in the text ratified in the plebiscite of 2 February 1987, then read as follows:
4

The right of the people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be abridged.
It is then indubitably clear from the foregoing that the intent of the Constitutional Commission was to
abrogate the law prohibiting managerial employees from joining, assisting, or forming unions or
labor organizations. In this regard, there is absolutely no need to decipher the intent of the framers
of the 1987 Constitution vis-a-vis Article 245 (originally 246) of the Labor Code, there being no
ambiguity or vagueness in the wording of the present Section 8, Article III of the 1987 Constitution.
The provision is clear and written in simple language; neither were there any confusing debates
thereon. More importantly, the purpose of Commissioner Lerum's amendments was unequivocal: he
did not merely intend an implied repeal, but an express repeal of the offending article of the Labor
Code. The approval of the amendments left no doubt whatsoever, as faithfully disclosed in the
Records of the Constitutional Commission, that all employees meaning rank-and-file, supervisory
and managerial whether from the public or the private sectors, have the right to form unions for
purposes not contrary to law.
The Labor Code referred to by Commissioner Lerum was P.D. No. 442, promulgated on 1 May 1974.
With the repeal of Article 239 by Executive Order No. 111 issued on 24 December 1986, Article 246
(as mentioned by Commissioner Lerum) became Article 245. Thereafter, R.A. No. 6715 amended
the new Article 245 (originally Article 246) to read, as follows:
5

Sec. 245. Ineligibility of managerial employees to join any labor organization; right of
supervisory employees. Managerial employees are not eligible to join, assist or form any
labor organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form separate labor
organizations of their own.
7

With the abrogation of the former Article 246 of the Labor Code, and the constitutional prohibition
against any law prohibiting managerial employees from joining, assisting or forming unions or labor
organizations, the first sentence then of the present Article 245 of the Labor Code must be struck
down as unconstitutional. However, due to an obvious conflict of interest being closely identified
with the interests of management in view of the inherent nature of their functions, duties and
responsibilities managerial employees may only be eligible to join, assist or form unions or labor
organizations of their own rank, and not those of the supervisory employees nor the rank-and-file
employees.
8

In the instant case, the petitioner's name United Pepsi-Cola Supervisory Union (UPSU)
indubitably attests that it is a union of supervisory employees. In light of the earlier discussion,
the route managers who aremanagerial employees, cannot join or assist UPSU. Accordingly, the
Med-Arbiter and public respondent Laguesma committed no error in denying the petition for direct
certification or for certification election.
I thus vote to GRANT, IN PART, the instant petition. That portion of the challenged resolution of
public respondent holding that since the route managers of private respondent Pepsi-Cola Products
Philippines, Inc., are managerial employees, they are "not eligible to assist, join or form a union or
any other organization" should be SET ASIDE for being violative of Section 8 of Article III of the

Constitution, while that portion thereof denying petitioner's appeal from the Med-Arbiter's decision
dismissing the petition for direct certification or for a certification election should be AFFIRMED.
PUNO, J., separate concurring;
With due respect, it is my submission that Article 245 of the Labor Code was not repealed by section
8, Article III of the 1987 Constitution for reasons discussed below.
A. Types of Employees.
For purposes of applying the law on labor relations, the Labor Code in Article 212 (m) defines three
(3) categories of employees. They are managerial, supervisory and rank-and-file, thus:
Art. 212 (m). "Managerial Employee" is one who is vested with powers or prerogatives to lay
down and execute management policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees. "Supervisory employees" are those who, in the
interest of the employer, effectively recommended such managerial actions if the exercise of
such authority is not merely routinary or clerical in nature but requires the use of
independent judgment. All employees not falling within any of the above definitions are
considered rank-and-file employees for purposes of this Book.
The test of "managerial" or "supervisory" status depends on whether a person possesses authority
to act in the interest of his employer and whether such authority is not routinary or clerical in nature
but requires the use of independent judgment. The rank-and-file employee performs work that is
routinary and clerical in nature. The distinction between these employees is significant because
supervisory and rank-and-file employees may form, join or assist labor organizations. Managerial
employees cannot.
1

B. The Exclusion of Managerial Employees: Its Historical Roots in the United States.
The National Labor Relations Act (NLRA), also known as the Wagner Act, enacted by the U.S.
Congress in 1935, was the first law that regulated labor relations in the United States and embodied
its national labor policy. The purpose of the NLRA was to eliminate obstructions to the free flow of
commerce through the practice of collective bargaining. The NLRA also sought to protect the
workers' full freedoms of association, self-organization, and designation of representatives of their
own choosing, for the purpose of negotiating the terms and conditions of their employment or other
mutual aid and protection. The NLRA established the right of employees to organize, required
employers to bargain with employees collectively through employee-elected representatives, gave
employees the right to engage in concerted activities for collective bargaining purposes or other
mutual aid or protection, and created the National Labor Relations Board (NLRB) as the regulatory
agency in labor-management matters.
2

The NLRA was amended in 1947 by the Labor Management Relations Act (LMRA), also known as
the Taft-Hartley Act. This Act sought to lessen industrial disputes and placed employers in a more
nearly equal position with unions in bargaining and labor relations procedures.
5

The NLRA did not make any special provision for "managerial employees." The privileges and
benefits of the Act were conferred on "employees." Labor organizations thus clamored for the
inclusion of supervisory personnel in the coverage of the Act on the ground that supervisors were
also employees. Although traditionally, supervisors were regarded as part of management, the
NLRB was constrained to recognize supervisors as employees under the coverage of the law.
6

Supervisors were then granted collective bargaining rights. Nonetheless, the NLRB refused to
consider managers as covered by the law.
7

The LMRA took away the collective bargaining rights of supervisors. The sponsors of the
amendment feared that their unionization would break down industrial discipline as it would blur the
traditional distinction between management and labor. They felt it necessary to deny supervisory
personnel the right of collective bargaining to preserve their loyalty to the interests of their
employers.
9

Several amendments were later made on the NLRA but the exclusion of managers and supervisors
from its coverage was preserved. Until now managers and supervisors are excluded from the
law. Their exclusion hinges on the theory that the employer is entitled to the full loyalty of those
whom it chooses for positions of responsibility, entailing action on the employers' behalf. A
supervisor's and manager's ability to control the work of others would be compromised by his
sharing of employee status with them.
10

11

C. Historical Development in the Philippines.

Labor-management relations in the Philippines were first regulated under the Industrial Peace
Act which took effect in 1953. Hailed as the Magna Carta of Labor, it was modelled after the NLRA
and LMRA of the United States. Most of the basic principles of the NLRA have been carried over to
the Industrial Peace Act and the Labor Code. This is significant because we have ruled that where
our labor statutes are based on statutes in foreign jurisdiction, the decisions of the high courts in
those jurisdictions construing and interpreting the Act are given persuasive effects in the application
of Philippine law.
12

13

14

15

The Industrial Peace Act did not carry any provision prohibiting managerial employees from joining
labor organizations. Section 3 of said law merely provided:
Sec. 3. Employees' Right to Self-Organization. Employees shall have the right to selforganization and to form, join or assist labor organizations of their own choosing for the
purpose of collective bargaining through representatives of their own choosing and to
engage in concerted activities for the purpose of collective bargaining and other mutual aid
and protection. Individuals employed as supervisors shall not be eligible for membership in a
labor organization of employees under their supervision but may form separate
organizations of their own.
Significantly, the Industrial Peace Act did not define a manager or managerial employee. It defined a
"supervisor" but not a "manager." Thus:
Sec. 2. . . .
(k) "Supervisor" means any person having authority in the interest of an employer, to hire,
transfer, suspend, lay-off, recall, discharge, assign, recommend, or discipline other
employees, or responsibly to direct them, and to adjust their grievances, or effectively to
recommend such acts, if, in connection with the foregoing, the exercise of such authority is
not of a merely routinary or clerical nature but requires the use of independent judgment.
In 1972, we interpreted Section 3 of the Industrial Peace Act to give supervisors the right to join and
form labor organizations of their own. Soon we grappled with the right of managers to organize. In a
case involving Caltex managers, we recognized their right to organize, viz:
16

It would be going too far to dismiss summarily the point raised by respondent company, that
of the alleged identity of interest between the managerial staff and the employing firm. That
should ordinarily be the case, especially so where the dispute is between management and
the rank-and-file. It does not necessarily follow though that what binds the managerial staff
to the corporation forecloses the possibility of conflict between them. There could be a real
difference between what the welfare of such group requires and the concessions the firm is
willing to grant. Their needs might not be attended to then in the absence of any organization
of their own. Nor is this to indulge in empty theorizing. The records of respondent company,
even the very case cited by it, is proof enough of their uneasy and troubled relationship.
Certainly the impression is difficult to erase that an alien firm failed to manifest sympathy for
the claims of its Filipino executives.
17

The Industrial Peace Act was repealed in 1975 by P.D. 442, the Labor Code of the Philippines. The
Labor Code changed existing jurisprudence when it prohibited supervisory and managerial
employees from joining labor organizations. Supervisory unions were no longer recognized nor
allowed to exist and operate as such. We affirmed this statutory change in Bulletin Publishing
Corp. v. Sanchez. Similarly, Article 246 of the Labor Code expressly prohibited managerial
employees from forming, assisting and joining labor organizations, to wit:
18

19

Art. 246. Ineligibility of managerial employees to join any labor organization. Managerial
employees are not eligible to join, assist or form any labor organization.
In the same Bulletin case, the Court applied Article 246 and held that managerial employees are the
very type of employees who, by the nature of their positions and functions, have been decreed
disqualified from bargaining with management. This prohibition is based on the rationale that if
managerial employees were to belong or be affiliated with a union, the union might not be assured
of their loyalty in view of evident conflict of interest or that the union can be company-dominated with
the presence of managerial employees in the union membership. In the collective bargaining
process, managerial employees are supposed to be on the side of the employer, to act as its
representative, and to see to it that its interests are well protected. The employer is not assured of
such protection if these employees themselves become union members.
20

21

The prohibition on managerial employees to join, assist or form labor organizations was retained in
the Labor Code despite substantial amendments made in 1989 by R.A. 6715, the Herrera-Veloso
Law. R.A. 6715 was passed after the effectivity of the 1987 Constitution and this law did not
abrogate, much less amend the prohibition on managerial employees to join labor
organizations. The express prohibition in Article 246 remained.However, as an addendum to this
same Article, R.A. 6715 restored to supervisory employees the right to join labor organizations of
their own. Article 246 now reads:
22

Art. 246. Ineligibility of managerial employees to join any labor organization; right of
supervisory employees. Managerial employees are not eligible to join, assist or form any
labor organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form separate labor
organizations of their own.
Article 246 became Article 245 after then Article 244 was repealed by E.O. 111. Article 246 is
presently Article 245 of the Labor Code.
Indeed, Article 245 of the Labor Code prohibiting managerial employees from joining labor
organizations has a social and historical significance in our labor relations law. This significance

should be considered in deciphering the intent of the framers of the 1987 Constitution vis-a-vis the
said Article.
With due respect, I do not subscribe to the view that section 8, Article III of the Constitution
abrogated Article 245 of the Labor Code. A textual analysis of section 8, Article III of the Constitution
will not justify this conclusion. With due respect, the resort by Mr. Justice Davide to the deliberations
of the Constitutional Commission does not suffice. It is generally recognized that debates and other
proceedings in a constitutional convention are of limited value and are an unsafe guide to the intent
of the people. Judge Cooley has stated that:
23

When the inquiry is directed to ascertaining the mischief designed to be remedied, or the
purpose sought to be accomplished by a particular provision, it may be proper to examine
the proceedings of the convention which framed the instrument. Where the proceedings
clearly point out the purpose of the provision, the aid will be valuable and satisfactory; but
where the question is one of abstract meaning, it will be difficult to derive from this source
much reliable assistance in interpretation. Every member of such a convention acts upon
such motives and reasons as influence him personally, and the motions and debates do not
necessarily indicate the purpose of a majority of a convention in adopting a particular clause.
It is quite possible for a particular clause to appear so clear and unambiguous to the
members of the convention as to require neither discussion nor illustration; and the few
remarks made concerning it in the convention might have a plain tendency to lead directly
away from the meaning in the minds of the majority. It is equally possible for a part of the
members to accept a clause in one sense and a part in another. And even if we were certain
we had attained to the meaning of the convention, it is by no means to be allowed a
controlling force, especially if that meaning appears not to be the one which the words would
most naturally and obviously convey. For as the constitution does not derive its force from
the convention which framed, but from the people who ratified it, the intent to be arrived at is
that of the people, and it is not to be supposed that they have looked for any dark and
abstruse meaning in the words employed, but rather that they have accepted them in the
sense most obvious to the common understanding, and ratified the instrument in the belief
that was the sense designed to be conveyed.
24

It is for this reason that proceedings of constitutional conventions are less conclusive of the proper
construction of the instrument than are legislative proceedings of the proper construction of the
statute. In the statutes, it is the intent of the legislature that is being sought, while in constitutions, it
is the intent of the people that is being ascertained through the discussions and deliberations of their
representatives. The proper interpretation of constitutional provisions depends more on how it was
understood by the people adopting it than in the framers' understanding thereof.
25

26

27

Thus, debates and proceedings of the constitutional convention are never of binding force. They
may be valuable but are not necessarily decisive. They may shed a useful light upon the purpose
sought to be accomplished or upon the meaning attached to the words employed. And the courts
are free to avail themselves of any light that may be derived from such sources, but they are not
bound to adopt it as the sole ground of their decision.
28

29

Clearly then, a statute cannot be declared void on the sole ground that it is repugnant to a supposed
intent or spirit declared in constitutional convention proceedings.
D. Freedom of Association
The right of association flows from freedom of expression. Like the right of expression, the exercise
of the right of association is not absolute. It is subject to certain limitations.
30

Article 243 of the Labor Code reiterates the right of association of people in the labor sector. Article
243 provides:
Art. 243. Coverage of employees' right to self-organization. All persons employed in
commercial, industrial and agricultural enterprises and in religious, charitable, medical, or
educational institutions whether operating for profit or not, shall have the right to selforganization and to form, join, or assist labor organizations of their own choosing for
purposes of collective bargaining. Ambulant, intermittent and itinerant workers, selfemployed people, rural workers and those without any definite employers may form labor
organizations for their mutual aid and protection.
Article 243 guarantees the right to self-organization and association to "all persons." This seemingly
all-inclusive coverage of "all persons," however, actually admits of exceptions.
Article 244 of the Labor Code mandates that all employees in the civil service, i.e, those not
employed in government corporations established under the Corporation Code, may only form
associations but may not collectively bargain on terms and conditions fixed by law. An employee of a
cooperative who is a member and co-owner thereof cannot invoke the right of collective bargaining
and negotiation vis-a-vis the cooperative. An owner cannot bargain with himself or his coowners. Employees in foreign embassies or consulates or in foreign international organizations
granted international immunities are also excluded from the right to form labor
organizations. International organizations are organized mainly as a means for conducting general
international business in which the member-states have an interest and the immunities granted them
shield their affairs from political pressure or control by the host country and assure the unimpeded
performance of their functions.
31

32

33

34

35

Confidential employees have also been denied the right to form labor-organizations. Confidential
employees do not constitute a distinct category for purposes of organizational right. Confidentiality
may attach to a managerial or non-managerial position. We have, however, excluded confidential
employees from joining labor organizations following the rationale behind the disqualification of
managerial employees in Article 245. In the case of National Association of Trade Unions-Republic
Planters' Bank Supervisors Chapter v. Torres, we held:
36

In the collective bargaining process, managerial employees are supposed to be on the side
of the employer, to act as its representatives, and to see to it that its interests are well
protected. The employer is not assured of such protection if these employees themselves
are union members. Collective bargaining in such a situation can become one-sided. It is the
same reason that impelled this Court to consider the position of confidential employees as
included in the disqualification found in Article 245 as if the disqualification of confidential
employees were written in the provision. If confidential employees could unionize in order to
bargain for advantages for themselves, then they could be governed by their own motives
rather than the interest of the employers. Moreover, unionization of confidential employees
for the purpose of collective bargaining would mean the extension of the law to persons or
individuals who are supposed to act "in the interest of" the employers. It is not farfetched that
in the course of collective bargaining, they might jeopardize that interest which they are dutybound to protect.
37

E. The disqualification extends only to labor organizations.

It must be noted that Article 245 of the Labor Code deprives managerial employees of their right to
join "labor organizations." A labor organization is defined under the Labor Code as:

Art. 212 (g). "Labor organization" means any union or association of employees which exists
in whole or in part for the purpose of collective bargaining or of dealing with the employer
concerning terms and conditions of employment.
A labor organization has two broad rights: (1) to bargain collectively and (2) to deal with the
employer concerning terms and conditions of employment. To bargain collectively is a right given to
a labor organization once it registers itself with the Department of Labor and Employment (DOLE).
Dealing with the employer, on the other hand, is a generic description of interaction between
employer and employees concerning grievances, wages, work hours and other terms and conditions
of employment, even if the employees' group is not registered with the DOLE. Any labor
organization which may or may not be a union may deal with the employer. This explains why a
workers' Organization does not always have to be a labor union and why employer-employee
collective interactions are not always collective bargaining.
38

39

In the instant case, it may be argued that managerial employees' labor organization will merely "deal
with the employer concerning terms and conditions of employment" especially when top
management is composed of aliens, following the circumstances in the Caltex case.
Although the labor organization may exist wholly for the purpose of dealing with the employer
concerning terms and conditions of employment, there is no prohibition in the Labor Code for it to
become a legitimate labor organization and engage in collective bargaining. Once a labor
organization registers with the DOLE and becomes legitimate, it is entitled to the rights accorded
under Articles 242 and 263 (b) of the Labor Code. And these include the right to strike and picket.
Notably, however, Article 245 does not absolutely disqualify managerial employees from exercising
their right of association. What it prohibits is merely the right to join labor organizations. Managerial
employees may form associations or organizations so long as they are not labor organizations. The
freedom of association guaranteed under the Constitution remains and has not been totally
abrogated by Article 245.
To declare Article 245 of the Labor Code unconstitutional cuts deep into our existing industrial life
and will open the floodgates to unionization at all levels of the industrial hierarchy. Such a ruling will
wreak havoc on the existing set-up between management and labor. If all managerial employees will
be allowed to unionize, then all who are in the payroll of the company, starting from the president,
vice-president, general managers and everyone, with the exception of the directors, may go on
strike or picket the
employer. Company officers will join forces with the supervisors and rank-and-file. Management
and labor will become a solid phalanx with bargaining rights that could be enforced against the
owner of the company. The basic opposing forces in the industry will not be management and labor
but the operating group on the one hand and the stockholder and bondholder group on the other.
The industrial problem defined in the Labor Code comes down to a contest over a fair division of the
gross receipts of industry between these two groups. And this will certainly bring ill-effects on our
economy.
40

41

42

The framers of the Constitution could not have intended a major upheaval of our labor and socioeconomic systems. Their intent cannot be made to override substantial policy considerations and
create absurd or impossible situations. A constitution must be viewed as a continuously operative
charter of government. It must not be interpreted as demanding the impossible or the impracticable;
or as effecting the unreasonable or absurd. Courts should always endeavour to give such
interpretation that would make the constitutional provision and the statute consistent with reason,
justice and the public interest.
43

44

45

I vote to dismiss the petition.

VITUG, J., separate concurring and dissenting;
The pivotal issues raised in the case at bar, aptly stated by the Office of the Solicitor General, are:
(1) Whether or not public respondent, Undersecretary of the Department of Labor and Employment
("DOLE") Bienvenido E. Laguesma, gravely abused his discretion in categorizing the members of
petitioner union to be managerial employees and thus ineligible to form or join labor organizations;
and
(2) Whether or not the provision of Article 245 of the Labor Code, disqualifying managerial
employees from joining, assisting or forming any labor organization, violates Section 8, Article III, of
the 1987 Constitution, which expresses that "(t)he right of the people, including those employed in
public and private sectors to form unions, associations or societies for purposes not contrary to law
shall not be abridged."
The case originated from a petition for direct certification or certification election among route
managers/supervisory employees of Pepsi-Cola Products Phils., Inc. ("Pepsi"), filed by the United
Pepsi-Cola Supervisory Union ("Union"), claiming to be a legitimate labor organization duly
registered with the Department of Labor and Employment under Registration Certificate No. NCRUR-3-1421-95. Pepsi opposed the petition on the thesis that the case was no more than a mere
duplication of a previous petition for direct certification filed by the same route managers through the
Pepsi-Cola Employees Association (PCEA-Supervisory) which petition had already been denied by
Undersecretary Laguesma. The holding reiterated a prior decision in Workers Alliance Trade Unions
("WATU") vs. Pepsi-Cola Products Phils., Inc., that route managers were managerial employees.
1

In its decision, dated 05 May 1995, Med-Arbiter Brigida C. Fadrigon dismissed for lack of merit the
petition of the Union, stating that the issue on the proper classification and status of route managers
had already been ruled with finality in the previous decisions, aforementioned, rendered by DOLE.
The union appealed the decision. In his resolution of 31 August 1995, Undersecretary Laguesma
dismissed the appeal, saying that there was no compelling reason to abandon the ruling in the two
old cases theretofore decided by DOLE. In his order of 22 September 1995, Undersecretary
Laguesma denied the Union's motion for reconsideration.
The Union went to this Court, via a petition for certiorari, assailing the cancellation of its certificate of
registration. The Court, after considering the petition and the comments thereon filed by both public
and private respondents, as well as the consolidated reply of petitioner, dismissed the case in its
resolution of 08 July 1996 on the premise that no grave abuse of discretion had been committed by
public respondent.
Undaunted, the Union moved, with leave, for the reconsideration of the dismissal of its petition by
the Court En Banc. In its resolution of 16 June 1997, the case was referred to the Court En Banc en
consulta with the movant's invocation of unconstitutionality of Article 245 of the Labor Code vis-avis Section 8, Article III, of the 1987 Constitution.
There is merit, in my view, in petitioner's motion for reconsideration but not on constitutional
grounds.

There are, in the hierarchy of management, those who fall below the level of key officers of an
enterprise whose terms and conditions of employment can well be, indeed are not infrequently,
provided for in collective bargaining agreements. To this group belong the supervisory employees.
The "managerial employees," upon the other hand, and relating the matter particularly to the Labor
Code, are those "vested with powers or prerogatives to lay down and execute management policies
and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees" as
distinguished from the supervisory employees whose duties in these areas are so designed as to
verily be implementary to the policies or rules and regulations already outstanding and priorly taken
up and passed upon by management. The managerial level is the source, as well as prescribes the
compliance, of broad mandates which, in the field of labor relations, are to be carried out through the
next rank of employees charged with actually seeing to the specific personnel action required. In
fine, the real authority, such as in hiring or firing of employees, comes from management and
exercised by means of instructions, given in general terms, by the "managerial employees;" the
supervisory employees, although ostensibly holding that power, in truth, however, only act in
obedience to the directives handed down to them. The latter unit, unlike the former, cannot be
considered the alter ego of the owner of enterprise.
The duties and responsibilities of the members of petitioner union, shown by their "job description"
below
PCPPI
RM's JOB DESCRIPTION
A. GENERAL/OVERALL OBJECTIVE OF THIS POSITION
To contribute to the growth and profitability of PCPPI via well-selected,
trained and motivated Route Sales Team who sell, collect and merchandise,
following the Pepsi Way, and consistent with Company policies and
procedures as well as the corporate vision of Customer Satisfaction.
B. SPECIFIC JOB DESCRIPTION:
KEY RESULT AREAS STANDARD OR PERFORMANCE
SALES VOLUME *100% Vs. NRC Target
_____% NTG
DISTRIBUTION * Product Availability
70% Pepsi
80% Seven-Up
40% Mirinda
65% Mt. Dew
5% Out of Stock

ACCOUNTS RECEIVABLE 65% Current (Incl. Legal & Col.)

MANAGEMENT 80:20 Cash to Credit Ratio
DSO assigned Std. to Division
by the District
ASSET MANAGEMENT 30 cases for ice-coolers
80 cases for electric coolers
BLOWAGA on Division Vehicles
60 cases on Rolling/Permanent
Kiosks
TRADE DEVELOPMENT 100% Buying Customers Based
on master list that bought once
5 months payback on concessions
4 CED's/Rte.
EXPENSE MANAGEMENT a). 5% Absentism rate Excl. VL
b). 280 cases/route/day
c). 15% cost-to-sales ratio
ROUTE MANAGEMENT 3 Days on RR/Wk
Days on BC-SC- Financial &
Co. Assets
Days on TD
75% Load Factor
18 Productive Calls
CUSTOMER SATISFACTION Customer Complaint attended to within the
next working day
HUMAN RESOURCE 5% Absentism Excl. VL

MANAGEMENT (approved) 3 Documented RR/

Week using SLM's Training Log
ADMINISTRATIVE Complete, timely and accurate
MANAGEMENT reports.
PCPPI
RM's BASIC DAILY ACTIVITIES
A. AT THE SALES OFFICE
1. PRACTICES BLOWAGA ON SERVICE VEHICLE (AT HOME)
2. REPORTS FOR WORK ON OR BEFORE 6:15 A.M.
3. REPORTS IN CLEAN AND NEAT UNIFORM (GOOD GROOMING)
4. DAILY BRIEFING WITH THE DM
5. CONDUCTS SKILLS ENHANCEMENT OR HUDDLES WITH RST's
a). ATTENDANCE/GROOMING
b). OPERATIONAL DIRECTIONS & PRIORITIES
c). ANNOUNCEMENT
6. RM's PRESENCE DURING CHECK-OUT
a). SLM PRACTICES BLOWAGA ON ROUTE TRUCK
b). PRIVATE COUNSELING WITH RST (AM & PM IF
NECESSARY)
c). PROPER HANDLING OF SELLING/MDSG. MATERIALS
d). YESTERDAY's FINAL SETTLEMENT REVIEW
7. UPDATE REPORTS, MONITORS, DOCUMENTS & TELEPHONE
CONMATION
8. ATTENDS TO PRODUCT COMPLAINTS (GFM)
9. CONDUCTS ADMINISTRATIVE INVESTIGATION OR ATTENDS DM's
MEETING (on Saturdays)

B. FIELD WORK
ROUTE RIDE
1. CHECKS SLMS. TRAINING LOG (PROGRESS & DEV'T.)
2. SALESMAN's CPC
3. ROUTE COVERAGE EVALUATION
4. LOAD FACTOR
5. SALESMAN's ROUTING SYSTEM EVALUATION
BC/SC
1. FINANCIAL & ASSET VERIFICATION, CONFIRMATION & AUDIT
2. BACKCHECKS FIRST 5 CUSTOMERS SERVED FOR THE DAY
a). MERCHANDISING
b). SERVICING
c). RM's TERRITORY FAMILIARITY
d). KEY ACCOUNTS GOODWILL
TRADE DEVELOPMENT
1. PREPARATION PRIOR TO CALL
2. ACTUAL CALL
3. POST CALL ANALYSIS
(HOW DID I FARE? WHY? WHAT ACTIONS TO TAKE)
4. FOLLOW-UP ACTION
C. AT CLOSE OF DAY
1. MAINTAINS & UPDATES CORRECT & ACCURATE RECORDS &
REPORTS
2. RM-SLM DEBRIEFING
3. SLR DISCUSSION (BASED ON A.M. SLR)

4. COORDINATES WITH DM ON PLANS & PROGRAMS

5. PREPARATIONS FOR NEXT DAY's ACTIVITIES

convey no more than those that are aptly consigned to the "supervisory" group by the relatively
small unit of "managerial" employees. Certain portions of a pamphlet, the so-called "Route Manager
Position Description" referred to by Mr. Justice Vicente Mendoza, in his ponencia, hereunder
reproduced for easy reference, thus
A. BASIC PURPOSE
A Manager achieves objectives through others.
As a Route Manager, your purpose is to meet the sales plan; and you
achieve this objective through the skillful management of your job and the
management of your people.
These then are your functions as Pepsi-Cola Route Manager. Within these
functions managing your job and managing your people you are
accountable to your District Manager for the execution and completion of
various tasks and activities which will make it possible for you to achieve
your sales objectives.
B. PRINCIPAL ACCOUNTABILITIES
1.0 MANAGING YOUR JOB
The Route Manager is accountable for the following:
1.1 SALES DEVELOPMENT
1.1.1 Achieve the sales plan.
1.1.2 Achieve all distribution and new account
objectives.
1.1.3 Develop new business opportunities
thru personal contacts with dealers.
1.1.4 Inspect and ensure that all
merchandising objectives are achieved in all
outlets.
1.1.5 Maintain and improve productivity of all
cooling equipment and kiosks.
1.1.6 Execute and control all authorized
promotions.
1.1.7 Develop and maintain dealer goodwill.

1.1.8 Ensure all accounts comply with

company suggested retail pricing.
1.1.9 Study from time to time individual route
coverage and productivity for possible
adjustments to maximize utilization of
resources.
1.2 Administration
1.2.1 Ensure the proper loading of route
trucks before check-out and the proper sorting
of bottles before check-in.
1.2.2 Ensure the upkeep of all route sales
reports and all other related reports and forms
required on an accurate and timely basis.
1.2.3 Ensure proper implementation of the
various company policies and procedures
include but not limited to shakedown; route
shortage; progressive discipline; sorting;
spoilages; credit/collection; accident;
attendance.
1.2.4 Ensure collection of receivables and
delinquent accounts.
2.0 MANAGING YOUR PEOPLE
The Route Manager is accountable for the following:
2.1 Route Sales Team Development
2.1.1 Conduct route rides to train, evaluate
and develop all assigned route salesmen and
helpers at least 3 days a week, to be
supported by required route ride
documents/reports & back check/spot check
at least 2 days a week to be supported by
required documents/reports.
2.1.2 Conduct sales meetings and morning
huddles. Training should focus on the
enhancement of effective sales and
merchandising techniques of the salesmen
and helpers. Conduct group training at least 1
hour each week on a designated day and of
specific topic.
2.2 Code of Conduct

2.2.1 Maintain the company's reputation

through strict adherence to PCPPI's code of
conduct and the universal standards of
unquestioned business ethics.
offer nothing at all that can approximate the authority and functions of those who actually and
genuinely hold the reins of management.
I submit, with due respect, that the members of petitioning union, not really being "managerial
employees" in the true sense of the term, are not disqualified from forming or joining labor
organizations under Article 245 of the Labor Code.
I shall now briefly touch base on the constitutional question raised by the parties on Article 245 of
the Labor Code.
The Constitution acknowledges "the right of the people, including those employed in the public and
private sectors, to form unions, associations or societies for purposes not contrary to
law . . . ." Perforce, petitioner claims, that part of Article 245 of the Labor Code which states:
"Managerial employees are not eligible to join, assist or form any labor organization," being in direct
collision with the Constitutional provision, must now be declared abrogated in the law.
4

Frankly, I do not see such a "direct collision." The Constitution did not obviously grant a limitless
right "to form unions, associations or societies" for it has clearly seen it fit to subject its exercise to
possible legislative judgment such as may be appropriate or, to put it in the language of the
Constitution itself, to "purposes not contrary to law."
Freedom of association, like freedom of expression, truly occupies a choice position in the hierarchy
of constitutional values. Even while the Constitution itself recognizes the State's prerogative to
qualify this right, heretofore discussed, any limitation, nevertheless, must still be predicated on the
existence of a substantive evil sought to be addressed. Indeed, in the exercise of police power, the
State may, by law, prescribe proscriptions, provided reasonable and legitimate of course, against
even the most basic rights of individuals.
6

The restriction embodied in Article 245 of the Labor Code is not without proper rationale.
Concededly, the prohibition to form labor organizations on the part of managerial employees
narrows down their freedom of association. The very nature of managerial functions, however,
should preclude those who exercise them from taking a position adverse to the interest they are
bound to serve and protect. The mere opportunity to undermine that interest can validly be
restrained. To say that the right of managerial employees to form a "labor organization" within the
context and ambit of the Labor Code should be deemed totally separable from the right to bargain
collectively is not justified by related provisions of the Code. For instance
Art. 212. Definitions. . . .
7

(g) "Labor organization" means any union or association of employees which exists in whole
or in part for the purpose of collective bargaining or of dealing with employers concerning
terms and conditions of employment.
xxx

xxx

xxx

(m) "Managerial employee" is one who is vested with powers or prerogatives to lay down
and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge,
assign or discipline employees. Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the exercise of such authority is
not merely routinely or clerical in nature but requires the use of independent judgment. All
employees not falling within any of the above definitions are considered rank-and-file
employees for purposes of this Book.
Art. 263. . . .
(b) Workers shall have the right to engage in concerted activities for purposes of collective
bargaining or for their mutual benefit and protection. The right of legitimate labor
organizations to strike and picket and of employers to lockout, consistent with the national
interest, shall continue to be recognized and respected.
The maxim "ut res magis quam pereat" requires not merely that a statute should be given such a
consequence as to be deemed whole but that each of its express provisions equally should be given
the intended effect.
I find it hard to believe that the fundamental law could have envisioned the use by managerial
employees of coercive means against their own employers over matters entrusted by the latter to
the former. Whenever trust and confidence is a major aspect of any relationship, a conflict of interest
on the part of the person to whom that trust and confidence is reposed must be avoided and when,
unfortunately, it does still arise its containment can rightly be decreed.
Article 245 of the Labor Code indeed aligns itself to the Corporation Code, the basic law on by far
the most commonly used business vehicle the corporation which prescribes the tenure of
office, as well as the duties and functions, including terms of employment (governed in most part by
the Articles of Incorporation, the By-laws of the Corporation, or resolutions of the Board of Directors),
of corporate officers for both the statutory officers,i.e., the president, the treasurer and the corporate
secretary, and the non-statutory officers, i.e., those who occupy positions created by the corporate
by-laws who are deemed essential for effective management of the enterprise. I cannot imagine
these officers as being legally and morally capable of associating themselves into a labor
organization and asserting collective bargaining rights against the very entity in whose behalf they
act and are supposed to act.
I submit, accordingly, that, firstly, the members of petitioner union or the so-called route managers,
being no more than supervisory employees, can lawfully organize themselves into a labor union
within the meaning of the Labor Code, and that, secondly, the questioned provision of Article 245 of
the Labor Code has not been revoked by the 1987 Constitution.
WHEREFORE, I vote, given all the foregoing, for the reversal of the resolution of 31 August 1995,
and the order of 22 September 1995, of public respondent.
Kapunan, Panganiban and Quisumbing, JJ., concur and dissent.