Professional Documents
Culture Documents
Memo Certiorari
Memo Certiorari
Court of Appeals
Manila
-versus-
MEMORANDUM
(For Respondent ALEO)
1
Annex “1” to the Respondent’s Comment on the Petition
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 2 of 31
2.1 The original labor cases involved in this Petition was the
offshoot of the Official Declaration2 of the Interim Board of
ALECO to enter into a Concession Agreement with a private
entity which would require the forced resignation of all
employees of ALECO.
2.3 On April 15, 2013, ALEO filed Preventive Mediation Case No.
NCMB RBV-PM-04-02-20135.On April 25, 2013, a conference
was held at the NCMB-DOLE but no terms were agreed upon
because the emissaries from ALECO - Reynaldo Reverente and
Atty. Busalla, were not authorized to enter into stipulation to
bind ALECO. A conference was re-scheduled by the hearing
officer on May 3, 2013.However, because of the lack of sincerity
of the ALECO management to negotiate, ALEO decided to
drop the preventive mediation case and filed a Notice of
2
Annex “3” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
3
Annex “A” of the Petition
4
Annex “1” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
5
Annex “4” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 3 of 31
2.5 On May 10, 2013, ALEO conducted the strike vote balloting
with the assistance of NCMB-DOLE Regional Office V. The
proposed Strike was approved by 183 “YES” votes and
opposed by only 13 “NO” votes. The 183 approving votes
already complied with the required majority out of the 350
number of members indicated in the Notice of Strike. However,
the conduct of the strike vote, other employees who were not
yet members of ALEO applied for membership so that their
voice on the rehabilitation of ALECO could also be heard. The
additional new members raised the number of ALEO members
from 350 to 370. Because of the additional members and the fact
that other members were not able to leave their work to cast
their vote and their distance from the polling place, ALEO
submitted a request Letter9, dated May 16, 2013, requesting the
NCMB-DOLE to facilitate the conduct of a Special Strike Vote
for the Tabaco Branch on May 17, 2013 and for Ligao Branch on
May 20, 2013.
2.6 After the conduct of the Strike Voting on May 10, 17 and 20,
2013, the result was canvassed on May 21, 2013 and recorded
on the Consolidated Minutes of the Strike Vote10, witnessed
by NCMB-DOLE representative Josephine Amaranto, where
out of the 370 current members of ALECO, 217 approved the
conduct of the Strike while only 17 voted to oppose it.
6
Annex “2” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
7
Please see Annex “II” of ALECO’s Position Paper in OS-VA-2014-01 INC
8
Annex “5” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
9
Annex “6” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
10
Annexes “7”, “7-a”, “7-b”, “7-c” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 4 of 31
2.7 On September 23, 2013, ALEO staged their labor strike on the
opposite side of the street in front of the ALECO compound at
Old Albay, Legazpi City and near the entrance of the road to
the ALECO Tabaco City Collection Office. The strike was
peacefully conducted without obstructing the egress and
ingress to the ALECO premises. The Pictures of the Strike in
Legazpi City11 show the open gate of ALECO without any
obstruction by the Strikers. Also, the Pictures of the Strike at
the Tabaco City Collection Office 12 show that the Strike does
not in any way obstruct the egress and ingress to the ALECO
Collection Office of that place.
11
Annexes “8”, “8-a”, “8-b” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
12
Annexes “9”, “9-a”, “9-b” of ALECO’s Position Paper in OS-VA-2014-01 INC
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 5 of 31
13
Annex “10” of ALECO’s Position Paper in OS-VA-2014-01 INC
14
Annex “11” of ALECO’s Position Paper in OS-VA-2014-01 INC
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 6 of 31
3.0 ISSUES
3.2 There is also an issue raised in the Petition that is not part of the
assailed Decision of the Secretary of Labor. This issue is the
alleged attempt of respondent ALEO members and its counsel
to take over ALECO which the petitioner claims to put the
dispute beyond the jurisdiction of the respondent Secretary.
This issue is not even contained among the issues on
Petitioner’s Position Paper 15 before the DOLE. To avoid further
complication, this issue must simply be ignored for lack of
materiality and significance.
4.1 Respondent ALEO adopts its Arguments and Discussion set forth
in the Comment to the Petition as an integral part of this
Memorandum.
15
Annex “E” of the Petition
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 7 of 31
16
Par. 2 Page 3, Resolution dated April 29, 2016 [OS-VA-2014-01, NCMB-RBV-NS-04-001-13, NCMB-
RBV-PM-04-002-13]
17
G.R. No. 170904, November 13, 2013
18
G.R. Nos. 211933 & 211960, April 15, 2015
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 8 of 31
4.7 For the current Petition to prosper, the Petitioner must prove
for each of the issues raised in the Petition that the Secretary of
Labor exercised its discretion in a capricious and whimsical
manner because of passion or hostility. The extent of the abuse
must be so patent and gross as to amount to evasion of a
positive duty or refusal to perform a duty enjoined by law.
19
Former Art. 263(g) of the Labor Code
20
Annex “C” of the Petition
21
496 Phil. 707, 717 (2005)
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 9 of 31
4.10 The provisions of both Art. 278(g)24 of the Labor Code and the
Primer on Strike, Picketing and Lockout of the NCMB do not
require that non-compliance with a return-to-work order must
be accompanied by a finding of an illegal strike as a condition
for the payment of backwages.
4.12 On Par. 5 Page 12 of the Resolution, dated April 29, 2017, the
respondent Secretary of Labor and Employment made a finding
of fact:
22
G.R. No. 170830, August 11, 2010
23
G.R. No. 150437, July 17, 2006
24
Former Art. 263(g) of the Labor Code
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 10 of 31
“In this case, the Order dated 10 January 2014 of the Secretary
of Labor and Employment requires ALECO to readmit all
workers who have not accepted their separation pay under the
same terms and conditions prevailing before the strike.
Readmission may either be actual or on payroll. Records,
however, reveal that as of this date, ALECO fails to comply
with this Order.
25
Former Art. 263(g) of the Labor Code
26
G.R. Nos. 205685-86, June 22, 2015
27
421 SCRA 78, 91 (2004)
28
G.R. No. 158255, 8 July 2004
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 11 of 31
Corporation vs. Aballa29, Manatad vs. Phil Telegraph 30, Best Wear
Garments vs. De Lemos31. In all the above cases, there was no
issue on non-compliance with a return-work-order based on
Article 278(g) of the Labor Code.
4.17 Under the doctrine of stare decisis, when a court has laid down a
principle of law as applicable to a certain state of facts, it will
adhere to that principle and apply it to all future cases in which
the facts are substantially the same, even though the parties
may be different. Where the facts are essentially different,
however, stare decisis does not apply, for a perfectly sound
principle as applied to one set of facts might be entirely
inappropriate when a factual variant is introduced. 32
4.18 As a last ditch but devious effort to support its assertion that
backwages should not be awarded, petitioner invoked the
principle of Stare Decisis by citing the ruling in the recent case of
PNCC vs SOLE33 and trying to point out the similarity of the
facts with the present case which also involves an industry that
is indispensable to national interest. Admittedly there were
certain minor similarities but there are substantial differences
between the two cases. The most significant difference between
the two cases is that in the present case the petitioner defied the
Return-to-Work Order of the Secretary of Labor and
Employment which is the basis for the award of backwages. On
the other hand, there is no defiance of any return-to-work order
by the employer in the PNCC vs SOLE.
29
G.R. No. 149011, June 28, 2005
30
G.R. No. 172363, March 07, 2008
31
G.R. No. 191281, December 05, 2012
32
Cabaobas vs. Pepsi Cola Products, G.R. No. 176908, March 25, 2015
33
GRN 196110, 2/6/2017
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 12 of 31
4.20 Since the relevant facts in the present case are substantially
different from the facts which form the basis of the decision on
the above-cited cases, the ruling therein that backwages may be
granted only when there is a finding of illegal dismissal cannot be
invoked by herein petitioner to support its assertion that herein
respondent ALEO members are not entitled to backwages.
4.22 Under Article 276(i) of the Labor Code, it is provided that the
Secretary of Labor shall decide or resolve the dispute within thirty
(30) calendar days from the date of the assumption of jurisdiction.
4.24 In Berces vs. Guingona 34, the Supreme Court declared that
“The term "shall" may be read either as mandatory or directory
depending upon a consideration of the entire provision in which it is
found, its object and the consequences that would follow from
construing it one way or the other (cf. De Mesa v. Mencias, 18
SCRA 533 [1966]).”
34
G.R. No. 112099, February 21, 1995
35
G.R. No. 117188, August 07, 1997
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 13 of 31
4.26 The statute in question is the Labor Code which provides under
renumbered Article 234 that “all issues arising from labor and
employment shall be subject to mandatory-conciliation-mediation.”
4.29 The delay in the resolution of the dispute was due to the
conduct of a series of conciliation-mediation conferences where
both Petitioner and private respondents participated.
Petitioner, in fact, admits that it participated in those
conferences.
4.33 The IRR of the Labor Code and the Operational Guidelines of
Department Order No. 40-G-03, Series of 2010 remain valid
regulations and have not been declared nullities by any court of
competent jurisdiction.
4.36 The 30-calendar days within which the Secretary of Labor and
Employment is mandated to resolve a labor dispute over which
it has assumed jurisdiction actually commences on the date that
the case was submitted for resolution.
36
Par. 2 Page 8 of the Resolution dated December 2, 2016
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 15 of 31
4.37 From March 16, 2016, the 30-day period to resolve the dispute
fell on April 16, 2016. The Secretary of Labor and Employment
resolved the dispute on April 29, 2016. This is a delay of only
thirteen (13) calendar days beyond the period within which to
resolve the dispute after the case was submitted for resolution.
4.40 Article 278(g) of the Labor Code does not limit the award of
backwages to the 30-day period within which the Secretary of
Labor and Employment may resolve the labor dispute.
4.41 The petitioner has no legal basis in asserting that the award of
backwages should be limited to the 30-day period from the date of
assumption of jurisdiction. There is no law or regulation that
expressly supports petitioner’s assertion.
4.43 The finding of fact that petitioner failed to comply with the
Return-to-Work Order is supported by the evidence on record
that petitioner refused to reinstate the employees to their
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 16 of 31
4.49 The Strike was based on valid and legal grounds provided
under the Labor Code, its Implementing Rules & Regulations
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 17 of 31
4.52 However, the fact that the legality of the Strike was not
resolved in the assailed resolution does not show capricious
and whimsical exercise of judgment on the part of respondent
Secretary of Labor and Employment.
4.53 It was the Petitioner who requested the Secretary of Labor and
Employment to assume jurisdiction over the subject labor
dispute. It has to abide by the manner in which the dispute was
resolved by the Secretary which already became final and
executory as provided under Article 278(i) of the renumbered
Labor Code.
4.54 In Reformist Union of R.B. Liner, Inc. et al. vs. NLRC, et al. 37,
the Supreme Court categorically held that a party who:
37
G.R. No. 120482, January 27, 1997
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 18 of 31
4.56 If the petitioner would insist that the Strike is illegal and refuse
to pay the Separation Pay of the employees then it will not be
able to comply with the requirement of the payment of
separation pay for a valid retrenchment. The retrenchment
would have to be declared invalid for non-payment of
separation pay.
38
Sanoh Fulton Phils., Inc. vs. Bernardo, G.R. No. 187214, August 14, 2013; FASAP vs. PAL [ G.R.
No. 178083, October 02, 2009 ]; Lambert Pawnbrokers and Jewelry Corporation and Lambert
Limvs.Binamira[ G.R. No. 170464, July 12, 2010 ]
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 19 of 31
4.59 The failure of the Secretary to expressly rule on the issue of the
legality of the Strike does not show whimsical, arbitrary or
despotic exercise of discretion because of passion or hostility as
to constitute grave abuse of discretion amounting to lack or
excess of jurisdiction.
4.60 The issue of Lockout was briefly discussed on Par. 4 & 5, Page 8
of the assailed Resolution, dated April 29, 2016, as follows:
At the outset, let it be stressed that the fact of the instant case
could not support ALEO’s allegation of lock-out by ALEO.
4.61 It is true that the Labor Code, which took effect on January 1,
1975, provides definition for a Lockout.
4.64 The Labor Code, being a general law, did not repeal P.D. No. 823
which is a special law. In SJS vs. Chevron Phils. Inc., et al.39,
the Supreme Court ruled:
39
G.R. No. 156052, February 13, 2008
40
Former Article 212 of the Labor Code
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 21 of 31
4.71 ALECO never submitted any document showing that there was
a decision to declare a lockout and such decision was approved
by a majority of the board of directors obtained by secret ballot
in a meeting called for that purpose, as required under Article
278(f)41 of the Labor Code. Likewise, there is no evidence on
record that ALECO furnished the DOLE with the results of the
voting or a Notice of Lockout Vote at least seven days before the
intended lockout.
41
Former 263(f) of the Labor Code
42
Resolution dated December 2, 2016
43
G.R. No. 178083, October 02, 2009
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 23 of 31
4.78 In its own Position Paper45, ALECO admits that its losses are
primarily caused by Systems Losses and Collection Inefficiency:
4.82 Since the employees of ALECO are not the cause of the
problem, there is no reason to believe that their retrenchment
can solve the financial losses of the cooperative. For how can
removing all the employees reduce systems losses or improve
collection efficiency? In fact, after the retrenchment
implemented, the systems losses and collection efficiency of
ALECO under APEC/SGPHC even worsened.
4.87 In the above-cited case of FASAP vs. PAL, the Supreme Court
also stipulated:
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 26 of 31
47
Annex “28” of respondent’s Omnibus Position Paper at the DOLE
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 27 of 31
48
G.R. No. L-49875, November 21, 1979
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 28 of 31
49
G.R. No. 198656, September 8, 2014.
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 29 of 31
xxx
(5) Where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiff’s plainly valid, just and
demandable claim;
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 30 of 31
xxx
5.0 PRAYER
Other reliefs just and equitable under the premises are likewise
prayed for.
By
RITCHE R. REGALA
Roll No. 46552, 5/2/02; Lifetime IBP No. 02989, 5/2/02
PTR No. 1298605, 1/3/2017; MCLE Compliance No. V-0006157, Feb. 5, 2015