THIRD DIVISION

SOLIDBANK CORPORATION (now known as G.R. No. 159460

FIRST METRO INVESTMENT CORPORATION),
Petitioner,
- versus -
ERNESTO U. GAMIER, ELENA R. CONDEVILLAMAR,
JANICE L. ARRIOLA and OPHELIA C. DE GUZMAN,
Respondents.

Facts:
Sometime in October 1999, petitioner Solidbank and respondent Solidbank Employees Union (Union) were
set to renegotiate the economic provisions of their 1997-2001 Collective Bargaining Agreement (CBA) to cover the
remaining two years thereof. Seeing that an agreement was unlikely, the Union declared a deadlock on December 22,
1999 and filed a Notice of Strike on December 29, 1999.[2] During the collective bargaining negotiations, some Union
members staged a series of mass actions. In view of the impending actual strike, then Secretary of Labor and
Employment Bienvenido E. Laguesma assumed jurisdiction over the labor dispute, pursuant to Article 263 (g) of
the Labor Code, as amended. The assumption order dated January 18, 2000 directed the parties to cease and desist
from committing any and all acts that might exacerbate the situation.
On March 24, 2000, Secretary Laguesma resolved all economic and non-economic issues submitted by the
parties. Dissatisfied with the Secretarys ruling, the Union officers and members decided to protest the same by holding
a rally in front of the Office of the Secretary of Labor and Employment in Intramuros, Manila, simultaneous with the
filing of their motion for reconsideration of the March 24, 2000 Order. The mass leave and protest action at the
Department of Labor and Employment (DOLE) office while the banks provincial branches in Cebu, Iloilo,Bacolod and
Naga followed suit and boycotted regular work.[6] The union members also picketed the banks Head Office in Binondo
on April 6, 2000, and Paseo de Roxas branch on April 7, 2000. On the same day, then President of Solidbank,
Deogracias N. Vistan, issued a memorandum[7]addressed to all employees calling their absence from work and
demonstration infront of the DOLE office as an illegal act, and reminding them that they have put their jobs at risk as
they will be asked to show cause why they should not be terminated for participating in the union-instigated concerted
action. The employees work abandonment/boycott lasted for three days, from April 3 to 5, 2000.

Issue:
(1) whether the protest rally and concerted work abandonment/boycott staged by the respondents
violated the Order dated January 18, 2000 of the Secretary of Labor; (2) whether the respondents were validly
terminated; and (3) whether the respondents are entitled to separation pay or financial assistance.

Ruling:

1. It is explicit from the directive of the Secretary in his January 18, 2000 Order that the Union and its members
shall refrain from committing any and all acts that might exacerbate the situation,[45] which certainly includes
concerted actions. For all intents and purposes, therefore, the respondents staged a strike ultimately aimed
at realizing their economic demands. Whether such pressure was directed against the petitioners or the
 Secretary of Labor, or both, is of no moment. All the elements of strike are evident in the Union-instigated
mass actions.

2. Notwithstanding the illegality of the strike, we cannot sanction petitioner’s act of indiscriminately terminating
the services of individual respondents who admitted joining the mass actions and who have refused to comply
with the offer of the management to report back to work on April 6, 2000. The liabilities of individual
respondents must be determined under Article 264 (a) of the Labor Code, as amended:

Art. 264. Prohibited activities. x x x

xxxx

Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be
entitled to reinstatement with full back wages. Any union officer who knowingly participates in an
illegal strike and any worker or union officer who knowingly participates in the commission of
illegal acts during a strike may be declared to have lost his employment status: Provided,
That mere participation of a worker in a lawful strike shall not constitute sufficient ground for
termination of his employment, even if a replacement had been hired by the employer during such
lawful strike.

The law grants the employer the option of declaring a union officer who participated in an illegal strike as having lost
his employment. It possesses the right and prerogative to terminate the union officers from service.[50]

However, a worker merely participating in an illegal strike may not be terminated from employment. It is
only when he commits illegal acts during a strike that he may be declared to have lost
employment status.[51] We have held that the responsibility of union officers, as main players in an illegal
strike, is greater than that of the members and, therefore, limiting the penalty of dismissal only for the
former for participation in an illegal strike is in order.[52]Hence, with respect to respondents who are union
officers, the validity of their termination by petitioners cannot be questioned. Being fully aware that the
proceedings before the Secretary of Labor were still pending as in fact they filed a motion for
reconsideration of the March 24, 2000 Order, they cannot invoke good faith as a defense.[53]
For the rest of the individual respondents who are union members, the rule is that an ordinary striking worker cannot
be terminated for mere participation in an illegal strike. There must be proof that he or she committed illegal acts during
a strike. In all cases, the striker must be identified. But proof beyond reasonable doubt is not required. Substantial
evidence available under the attendant circumstances, which may justify the imposition of the penalty of dismissal,
may suffice. Liability for prohibited acts is to be determined on an individual basis.

3. Under the circumstances, respondent’s reinstatement without backwages suffices for the appropriate relief.
But since reinstatement is no longer possible, given the lapse of considerable time from the occurrence of the
strike, not to mention the fact that Solidbank had long ceased its banking operations, the award of separation
pay of one (1) month salary for each year of service, in lieu of reinstatement, is in order.[57] For the twenty-one
(21) individual respondents who executed quitclaims in favor of the petitioners, whatever amount they have
already received from the employer shall be deducted from their respective separation pay.
 SECOND DIVISION

[G.R. No. 144899. February 5, 2004]

ELIZABETH C. BASCON and NOEMI V. COLE, petitioners, vs. HONORABLE COURT OF APPEALS, METRO
CEBU COMMUNITY HOSPITAL, INC., and GREGORIO IYOY,respondents.

Facts:
The petitioners in the instant case were employees of private respondent Metro Cebu Community Hospital, Inc.
(MCCH) and members of the Nagkahiusang Mamumuo saMetro Cebu Community Hospital (NAMA-MCCH), a labor
union of MCCH employees. Petitioner Elizabeth C. Bascon had been employed as a nurse by respondent MCCH since
May 1984. At the time of her termination from employment in April 1996, she already held the position of Head Nurse.
The other petitioner, Noemi V. Cole, had been working as a nursing aide with MCCH since August 1974. Both
petitioners were dismissed by the respondent hospital for allegedly participating in an illegal strike.
The instant controversy arose from an intra-union conflict between the NAMA-MCCH and the National Labor
Federation (NFL), the mother federation of NAMA-MCCH. In November 1995, NAMA-MCCH asked MCCH to renew
their Collective Bargaining Agreement (CBA), which was set to expire on December 31, 1995. NFL, however, opposed
this move by its local affiliate. Mindful of the apparent intra-union dispute, MCCH decided to defer the CBA negotiations
until there was a determination as to which of said unions had the right to negotiate a new CBA.
Believing that their union was the certified collective bargaining agent, the members and officers of NAMA-MCCH
staged a series of mass actions inside MCCHs premises starting February 27, 1996. They marched around the hospital
putting up streamers, placards and posters.
On March 13 and 19, 1996, the Department of Labor and Employment (DOLE) office in Region 7 issued two (2)
certifications stating that NAMA-MCCH was not a registered labor organization. This finding, however, did not deter
NAMA-MCCH from filing a notice of strike with the Region 7 Office of the National Conciliation and Mediation Board
(NCMB). Said notice was, however, disregarded by the NCMB for want of legal personality of the union.
Subsequently, on March 28, 1996, MCCH notified the petitioners that they were to be investigated for their
activities in the mass actions, with the hearings being scheduled on March 28, 1996 and April 1, 1996. Petitioners,
however, denied receiving said notices. In a notice dated April 8, 1996, MCCH ordered petitioners to desist from
participating in the mass actions conducted in the hospital premises with a warning that non-compliance therewith
would result in the imposition of disciplinary measures. Petitioners again claimed they did not receive said order.
Petitioners Bascon and Cole were then served notices terminating their employment effective April 12, 1996 and April
19, 1996, respectively.

Issue:
Whether or not petitioners were validly terminated for gross insubordination to the order to stop wearing armbands
and putting up placards.
 Ruling:

While a union officer can be terminated for mere participation in an illegal strike, an ordinary striking employee,
like petitioners herein, must have participated in the commission of illegal acts during the strike. There must be proof
that they committed illegal acts during the strike.[14] But proof beyond reasonable doubt is not required. Substantial
evidence, which may justify the imposition of the penalty of dismissal, may suffice.
In this case, the Court of Appeals found that petitioner’s actual participation in the illegal strike was limited to
wearing armbands and putting up placards. There was no finding that the armbands or the placards contained offensive
words or symbols. Thus, neither such wearing of armbands nor said putting up of placards can be construed as an
illegal act. In fact, per se, they are within the mantle of constitutional protection under freedom of speech.
However, willful disobedience of the employers lawful orders, as a just cause for dismissal of an employee,
envisages the concurrence of at least two requisites: (1) the employee's assailed conduct must have been willful, that
is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful,
made known to the employee and must pertain to the duties which he had been engaged to discharge.[15]
In this case, we find lacking the element of willfulness characterized by a perverse mental attitude on the part of
petitioners in disobeying their employers order as to warrant the ultimate penalty of dismissal. Wearing armbands and
putting up placards to express ones views without violating the rights of third parties, are legal per se and even
constitutionally protected. Thus, MCCH could have done well to respect petitioner’s right to freedom of speech instead
of threatening them with disciplinary action and eventually terminating them.
Neither are we convinced that petitioner’s exercise of the right to freedom of speech should be taken in
conjunction with the illegal acts committed by other union members in the course of the series of mass actions. It bears
stressing that said illegal acts were committed by other union members after petitioners were already terminated, not
during the time that the latter wore armbands and put up placards.
Finally, even if willful disobedience may be properly appreciated, still, the penalty of dismissal is too harsh. Not
every case of willful disobedience by an employee of a lawful work-connected order of the employer may be penalized
with dismissal. There must be reasonable proportionality between, on the one hand, the willful disobedience by the
employee and, on the other hand, the penalty imposed therefor.[16] In this case, evidence is wanting on the depravity
of conduct and willfulness of the disobedience on the part of petitioners, as contemplated by law. Wearing armbands
to signify union membership and putting up placards to express their views cannot be of such great dimension as to
warrant the extreme penalty of dismissal, especially considering the long years of service rendered by petitioners and
the fact that they have not heretofore been subject of any disciplinary action in the course of their employment with
MCCH.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 163942 November 11, 2008

NATIONAL UNION OF WORKERS IN THE HOTEL RESTAURANT AND ALLIED INDUSTRIES (NUWHRAIN-APL-
IUF) DUSIT HOTEL NIKKO CHAPTER, petitioner,
vs.
THE HONORABLE COURT OF APPEALS (Former Eighth Division), THE NATIONAL LABOR RELATIONS
COMMISSION (NLRC), PHILIPPINE HOTELIERS INC., owner and operator of DUSIT HOTEL NIKKO and/or
CHIYUKI FUJIMOTO, and ESPERANZA V. ALVEZ,respondents.

x----------------------------------------x

G.R. No. 166295 November 11, 2008

NUWHRAIN-DUSIT HOTEL NIKKO CHAPTER,petitioner,

vs.
SECRETARY OF LABOR AND EMPLOYMENT and PHILIPPINE HOTELIERS, INC., respondents.

DECISION

VELASCO, JR., J.:

The Union is the certified bargaining agent of the regular rank-and-file employees of Dusit Hotel Nikko (Hotel),
a five star service establishment owned and operated by Philippine Hoteliers, Inc. located in Makati City.
On October 24, 2000, the Union submitted its Collective Bargaining Agreement (CBA) negotiation proposals
to the Hotel. As negotiations ensued, the parties failed to arrive at mutually acceptable terms and conditions.
Due to the bargaining deadlock, the Union, on December 20, 2001, filed a Notice of Strike on the ground of
the bargaining deadlock with the National Conciliation and Mediation Board (NCMB). Thereafter, conciliation
hearings were conducted which proved unsuccessful. Consequently, a Strike Vote8 was conducted by the
Union on January 14, 2002 on which it was decided that the Union would wage a strike.

Soon thereafter, in the afternoon of January 17, 2002, the Union held a general assembly at its office
located in the Hotel's basement, where some members sported closely cropped hair or cleanly shaven
heads. The next day, or on January 18, 2002, more male Union members came to work sporting the same
hair style. The Hotel prevented these workers from entering the premises claiming that they violated the
Hotel's Grooming Standards.

In view of the Hotel's action, the Union staged a picket outside the Hotel premises. Later, other workers
were also prevented from entering the Hotel causing them to join the picket. For this reason the Hotel
experienced a severe lack of manpower which forced them to temporarily cease operations in three
restaurants.
Subsequently, on January 20, 2002, the Hotel issued notices to Union members, preventively suspending
them and charging them with the following offenses: (1) violation of the duty to bargain in good faith; (2) illegal
picket; (3) unfair labor practice; (4) violation of the Hotel's Grooming Standards; (5) illegal strike; and (6)
commission of illegal acts during the illegal strike.

On January 26, 2002, the Hotel terminated the services of twenty-nine (29) Union officers and sixty-one (61)
members; and suspended eighty-one (81) employees for 30 days, forty-eight (48) employees for 15 days,
four (4) employees for 10 days, and three (3) employees for five days. On the same day, the Union declared
a strike. Starting that day, the Union engaged in picketing the premises of the Hotel. During the picket, the
Union officials and members unlawfully blocked the ingress and egress of the Hotel premises.

Issue:

Whether legal or not are the following acts of the Union Reporting for work with their bald or cropped hair
style on January 18, 2002.

Ruling:

The Union's violation of the Hotel's Grooming Standards was clearly a deliberate and concerted action to
undermine the authority of and to embarrass the Hotel and was, therefore, not a protected action. The
appearances of the Hotel employees directly reflect the character and well-being of the Hotel, being a five-
star hotel that provides service to top-notch clients. Being bald or having cropped hair per se does not evoke
negative or unpleasant feelings. The reality that a substantial number of employees assigned to the food
and beverage outlets of the Hotel with full heads of hair suddenly decided to come to work bald-headed or
with cropped hair, however, suggests that something is amiss and insinuates a sense that something out of
the ordinary is afoot. Obviously, the Hotel does not need to advertise its labor problems with its clients. It
can be gleaned from the records before us that the Union officers and members deliberately and in apparent
concert shaved their heads or cropped their hair. This was shown by the fact that after coming to work on
January 18, 2002, some Union members even had their heads shaved or their hair cropped at the Union
office in the Hotel's basement. Clearly, the decision to violate the company rule on grooming was designed
and calculated to place the Hotel management on its heels and to force it to agree to the Union's proposals.

In view of the Union's collaborative effort to violate the Hotel's Grooming Standards, it succeeded in forcing
the Hotel to choose between allowing its inappropriately hair styled employees to continue working, to the
detriment of its reputation, or to refuse them work, even if it had to cease operations in affected departments
or service units, which in either way would disrupt the operations of the Hotel. This Court is of the opinion,
therefore, that the act of the Union was not merely an expression of their grievance or displeasure but,
indeed, a calibrated and calculated act designed to inflict serious damage to the Hotel's finances or its
reputation. Thus, we hold that the Union's concerted violation of the Hotel's Grooming Standards which
resulted in the temporary cessation and disruption of the Hotel's operations is an unprotected act and
should be considered as an illegal strike.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. 176419 November 27, 2013

GMA NETWORK, INC., Petitioner,

vs.
CARLOS P. PABRIGA, GEOFFREY F. ARIAS, KIRBY N. CAMPO, ARNOLD L. LAGAHIT, and ARMANDO A.
CATUBIG,Respondents.

DECISION

LEONARDO-DE CASTRO, J.:

On July 19 1999 due to the miserable working conditions private respondents were forced to file a complaint against
petitioner before the National Labor Relations Commission Regional Arbitration Branch No. VII Cebu City assailing
their respective employment circumstances

Respondents claim that they are regular employees of petitioner GMA Network, Inc. The latter, on the other hand,
interchangeably characterize respondents’ employment as project and fixed period/fixed term employment. There is
thus the need to clarify the foregoing terms.

Issue:
Difference between project and fixed term employees.
Ruling:

The activities of project employees may or may not be usually necessary or desirable in the usual business or trade
of the employer. In the realm of business and industry, we note that "project" could refer to one or the other of at least
two (2) distinguishable types of activities. Firstly, a project could refer to a particular job or undertaking that is within
the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such,
from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable
times. The term "project" could also refer to, secondly, a particular job or undertaking that is not within the regular
business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the
ordinary or regular business operations of the employer. The job or undertaking also begins and ends at determined
or determinable times. Thus, in order to safeguard the rights of workers against the arbitrary use of the word "project"
to prevent employees from attaining the status of regular employees, employers claiming that their workers are
project employees should not only prove that the duration and scope of the employment was specified at the time
they were engaged, but also that there was indeed a project. If the particular job or undertaking is within the regular
or usual business of the employer company and it is not identifiably distinct or separate from the other undertakings
of the company, there is clearly a constant necessity for the performance of the task in question, and therefore said
job or undertaking should not be considered a project.

In the case at bar, as discussed in the statement of facts, respondents were assigned to the following tasks:

1) Manning of Technical Operations Center:

(a) Responsible for the airing of local commercials; and

(b) Logging/monitoring of national commercials (satellite)

 2) Acting as Transmitter/VTR men:

(a) Prepare tapes for local airing;

(b) Actual airing of commercials;

(c) Plugging of station promo;

(d) Logging of transmitter reading; and

(e) In case of power failure, start up generator set to resume program;

3) Acting as Maintenance staff;

(a) Checking of equipment;

(b) Warming up of generator;

(c) Filling of oil, fuel, and water in radiator; and

4) Acting as Cameramen14

These jobs and undertakings are clearly within the regular or usual business of the employer company and are not
identifiably distinct or separate from the other undertakings of the company. There is no denying that the manning of
the operations center to air commercials, acting as transmitter/VTR men, maintaining the equipment, and acting as
cameramen are not undertakings separate or distinct from the business of a broadcasting company.

Petitioner’s allegation that respondents were merely substitutes or what they call pinch-hitters (which means that they
were employed to take the place of regular employees of petitioner who were absent or on leave) does not change the
fact that their jobs cannot be considered projects within the purview of the law.
Be that as it may, a project employee may also attain the status of a regular employee if there is a continuous rehiring
of project employees after the stoppage of a project; and the activities performed are usual [and] customary to the
business or trade of the employer.

. The Supreme Court ruled that a project employee or a member of a work pool may acquire the status of a regular
employee when the following concur:

1) There is a continuous rehiring of project employees even after cessation of a project; and

2) The tasks performed by the alleged project employee are vital, necessary and indispensable to the usual
business or trade of the employer.

As stated above, petitioner interchangeably characterizes respondents’ service as project and fixed term
employment. These types of employment, however, are not the same. While the former requires a project as
restrictively defined above, the duration of a fixed-term employment agreed upon by the parties may be any day
certain, which is understood to be "that which must necessarily come although it may not be known when."25 The
decisive determinant in fixed-term employment is not the activity that the employee is called upon to perform but the
day certain agreed upon by the parties for the commencement and termination of the employment relationship.26
Cognizant of the possibility of abuse in the utilization of fixed-term employment contracts, we emphasized in Brent
that where from the circumstances it is apparent that the periods have been imposed to preclude acquisition of
tenurial security by the employee, they should be struck down as contrary to public policy or morals.27 We thus laid
down indications or criteria under which "term employment" cannot be said to be in circumvention of the law on
security of tenure, namely:

1) The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any
force, duress, or improper pressure being brought to bear upon the employee and absent any other
circumstances vitiating his consent; or

2) It satisfactorily appears that the employer and the employee dealt with each other on more or less equal
terms with no moral dominance exercised by the former or the latter.28 (Citation omitted.)

. The reason for this is evident: when a prospective employee, on account of special skills or market forces,
is in a position to make demands upon the prospective employer, such prospective employee needs less
protection than the ordinary worker. Lesser limitations on the parties’ freedom of contract are thus required
for the protection of the employee.

In the case at bar, we find it unjustifiable to allow petitioner to hire and rehire workers on fixed terms, ad infinitum,
depending upon its needs, never attaining regular employment status. To recall, respondents were repeatedly rehired
in several fixed term contracts from 1996 to 1999. To prove the alleged contracts, petitioner presented cash
disbursement vouchers signed by respondents, stating that they were merely hired as pinch-hitters. It is apparent that
respondents were in no position to refuse to sign these vouchers, as such refusal would entail not getting paid for
their services. Plainly, respondents as "pinch-hitters" cannot be considered to be in equal footing as Petitioner
Corporation in the negotiation of their employment contract.