FIRST DIVISION

CLUB FILIPINO, INC. and G.R. No. 168406

ATTY. ROBERTO F. DE LEON,
Petitioners, Present:

PUNO, C.J., Chairperson,

CARPIO,
- v e r s u s - CORONA,
LEONARDO-DE CASTRO and
BERSAMIN, JJ.
BENJAMIN BAUTISTA,
RONIE SUALOG, JOEL
CALIDA, JOHNNY ARINTO
and ROBERTO DE GUZMAN,[1]
Respondents. Promulgated:
July 13, 2009

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RESOLUTION

CORONA, J.:

Petitioner Club Filipino, Inc. (the company) is a non-stock, non profit corporation duly formed, organized and existing
under Philippine laws, with petitioner Atty. Roberto F. de Leon as its president. Respondents Ronnie Sualog, Joel Calida,
Johnny Arinto and Roberto de Guzman, on the other hand, were former officers and members of the Club Filipino Employees
Association (the union).

The union and the company had a collective bargaining agreement (CBA) which expired on May 31, 2000. Prior to the
expiration of the CBA and within the freedom period,[2] the union made several demands for negotiation but the company replied
that it could not muster a quorum, thus no CBA negotiations could be held.
Sometime in 2000, the union submitted its formal CBA proposal to the companys negotiating panel and repeatedly
asked for the start of negotiations. No negotiations, however, took place for various reasons proffered by the company, among
them the illness of the chairman of the management panel.

In order to compel the company to negotiate, respondents, as officers of the union, filed a request for preventive
mediation with the National Conciliation and Mediation Board (NCMB). Their strategy, however, failed to bring the management
to the negotiating table. The union and management only met on April 5, 2001, but the meeting concluded with a declaration
by both parties of a deadlock in their negotiations.

On April 6, 2001, the union filed a notice of strike with the NCMB on the grounds of bargaining deadlock and failure to
bargain. On April 22, 2001, the company formally responded to the demands of the union when it submitted the first part of its
economic counter-proposal; the second part was submitted on May 11, 2001.

Meanwhile, on May 4, 2001, the union conducted a strike vote under the supervision of the Department of Labor and
Employment.

In response to the companys counter-proposal, the union sent the company its improved proposal, but the company
refused to improve on its offer. This prompted the union to stage a strike on May 26, 2001 on the ground of a CBA bargaining
deadlock.

On May 31, 2001, the company filed before the National Labor Relations Commission (NLRC) a petition to declare the
strike illegal. The company further prayed that all union officers who participated in the illegal strike be considered separated
from the service.[3]

In a decision dated November 28, 2001, the labor arbiter [4] declared the strike procedurally [infirm] and therefore
illegal.[5]
The labor arbiter noted that the union failed to attach its written CBA proposal and the companys counter-proposal to
the notice of strike and to provide proof of a request for a conference to settle the dispute. Thus, the notice to strike was deemed
not to have been filed and the strike illegal. As a consequence, all the officers of the union were deemed terminated from
service. However, these employees were entitled to separation pay equivalent to that granted to employees affected by the
retrenchment program which the company had earlier launched.[6]

Respondents appealed but on September 30, 2002, the NLRC in a decision [7] affirmed the labor arbiter. The NLRC did
not see fit to pass upon the issues raised by respondents because, by the time they appealed on December 20, 2001, they had
either resigned from the company or were no longer part of the union because of the election of new set of officers.[8]

Respondents motion for reconsideration was consequently denied. [9] Aggrieved, they elevated the matter to the Court
of Appeals (CA) via a petition for certiorari.[10]
 On May 31, 2005, the CA issued its assailed decision,[11] holding that the labor arbiter and the NLRC took a selective
view of the attendant facts of the case and in negating thereby the effects of the notice of strike the union filed. [12] What was
more, the NLRCs reasoning was flawed because a worker ordered dismissed under a tribunals decision has every right to
question his or her dismissal.[13] The labor arbiters ruling was likewise wrong because it was based on a flimsy technicality that
conveniently booted out the union officers from the company. [14]

Thus, the CA set aside the rulings of the NLRC and the labor arbiter as far as respondents Sualog, Calida, De Guzman
and Arinto were concerned and ordered petitioners to pay them full backwages and benefits from the time of their dismissal up
to the finality of its decision, plus separation pay computed at one month salary per year of service from the time they were
hired up to the finality of its decision.[15] On the other hand, the CA dismissed the petition as far as Laureano
Fegalquin,[16]Bautista and Precentacion were concerned.[17]
Petitioners then sought redress from this Court by filing a petition for review on certiorari [18] hoisting the issue of whether or not
the strike staged by respondents on May 26, 2001 was legal.

We rule in the affirmative.

It is undisputed that the notice of strike was filed by the union without attaching the counter-proposal of the company. This,
according to petitioners and the labor arbiter, made the ensuing strike of respondents illegal because the notice of strike of the
union was defective.

The contention is untenable.

Rule XXII, Section 4 of the Omnibus Rules Implementing the Labor Code states:

In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues
in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-proposals
of the employer and the proof of a request for conference to settle differences. In cases of unfair labor practices,
the notice shall, as far as practicable, state the acts complained of, and efforts taken to resolve the dispute
amicably.

Any notice which does not conform with the requirements of this and the foregoing section shall be deemed as
not having been filed and the party concerned shall be so informed by the regional branch of the Board.
(emphasis supplied)

In the instant case, the union cannot be faulted for its omission. The union could not have attached the counter-proposal of the
company in the notice of strike it submitted to the NCMB as there was no such counter-proposal. To recall, the union filed a
notice of strike on April 6, 2001 after several requests to start negotiations proved futile. It was only on April 22, 2001, or after
two weeks, when the company formally responded to the union by submitting the first part of its counter-proposal. Worse, it
took the company another three weeks to complete it by submitting on May 11, 2001 the second part of its counter-proposal.
This was almost a year after the expiration of the CBA sought to be renewed.

The Implementing Rules use the words as far as practicable. In this case, attaching the counter-proposal of the
company to the notice of strike of the union was not practicable. It was absurd to expect the union to produce the companys
counter-proposal which it did not have. One cannot give what one does not have. Indeed, compliance with the requirement was
impossible because no counter-proposal existed at the time the union filed a notice of strike. The law does not exact compliance
with the impossible. Nemo tenetur ad impossibile.
Another error committed by the labor arbiter was his declaration that respondents, as union officers, automatically severed their
employment with the company due to the alleged illegal strike. In the first place, there was no illegal strike. Moreover, it is
hornbook doctrine that a mere finding of the illegality of the strike should not be automatically followed by the wholesale
dismissal of the strikers from employment.[19]

The law is clear:

Any union officer who knowingly participates in an illegal strike and any worker or union officer who
knowingly participates in the commission of illegal acts during a strike may be declared to have lost his
employment status.[20] (emphasis supplied)

Note that the verb participates is preceded by the adverb knowingly. This reflects the intent of the legislature to require
knowledge as a condition sine qua non before a union officer can be dismissed from employment for participating in an illegal
strike.[21] The provision is worded in such a way as to make it very difficult for employers to circumvent the law by arbitrarily
dismissing employees in the guise of exercising management prerogative. This is but one aspect of the States
constitutional[22] and statutory[23] mandate to protect the rights of employees to self-organization.

Nowhere in the ruling of the labor arbiter can we find any discussion of how respondents, as union officers, knowingly
participated in the alleged illegal strike. Thus, even assuming arguendo that the strike was illegal, their automatic dismissal had
no basis.
WHEREFORE, the petition is hereby DENIED.

Costs against petitioners.

SO ORDERED.