G & S Transport Corporation vs. Infante

A union member who participates in an illegal strike may not be dismissed on that ground alone; the employer must prove by substantial evidence that the member committed illegal acts during the strike, and mere participation is insufficient for termination. Backwages are likewise unavailable where the strike was illegal, the "fair day's wage for a fair day's labor" principle barring recovery unless the employee was ready, willing, and able to work but was illegally prevented from doing so—a circumstance requiring a legal strike.

G & S Transport Corporation was the exclusive coupon taxi concessionaire at the Ninoy Aquino International Airport (NAIA) under a five-year concession contract awarded by the Manila International Airport Authority, running from 1 February 1989 to 31 January 1994. Respondents Tito Infante, Melor Borbo (referred to in some parts as Melor Velasco, Jr. or JJ. Borbo), and Danilo Castañeda were taxi drivers employed by petitioner since 1 February 1989, assigned at the Domestic Airport on two shifts. The case turns on the distinction drawn by Article 264 of the Labor Code between union officers and ordinary union members in the context of illegal strikes, and on the proper monetary relief where reinstatement is no longer feasible due to the passage of time.

G & S Transport Corporation held the exclusive coupon taxi concession at NAIA from 1 February 1989 to 31 January 1994 under a five-year contract with the Manila International Airport Authority. Respondents Infante, Borbo, and Castañeda had been employed as drivers since 1 February 1989. At the time of their dismissal, they were assigned at the Domestic Airport on two shifts: the morning shift from 7:00 a.m. to 4:00 p.m., to which Castañeda was assigned, and the afternoon shift from 4:00 p.m. to 1:00 a.m., to which Infante and Borbo were assigned.

On 5 May 1990, petitioner received from the NAIA Airport Taxi Service Employees Union-TUPAS a letter-memorandum demanding the dismissal of drivers Ricardo Gonzales and Ephraim Alzaga for acts of disloyalty and conduct unbecoming a union member, based on a petition they filed calling for a local election. Petitioner terminated the two on 9 May 1990. Several drivers, apparently in sympathy with the dismissed colleagues, stopped driving their taxi cabs. Petitioner alleged that the work stoppage constituted an illegal strike, accompanied by illegal acts such as barring and intimidating other employees, which paralyzed its business operations. Petitioner ordered the striking workers to return to work, but some drivers, including respondents, refused. On 22 May 1990, petitioner filed a complaint for illegal strike before the Labor Arbiter against thirty-seven drivers; two days later, the drivers filed a case for illegal dismissal.

In a Joint Affidavit dated 18 October 1990, Infante and Borbo denied joining the alleged strike. They narrated that they reported to work at the Domestic Airport on 16 May 1990 before 4:00 p.m. but did not find their taxi in the area. They proceeded to the garage at the Duty Free shop, where the dispatcher and counter sales clerk were likewise absent. They learned of the protest over the dismissal of Gonzales and Alzaga and that management had stopped company operations that afternoon, but they stayed until 1:00 a.m. They did not report the following day because it was their day-off. On 18 May 1990, they reported for work but were refused entry by the guard because their names did not appear on the list of drivers allowed to work. Castañeda, in his affidavit dated 17 March 1995, stated he was on sick leave from 11 to 15 May 1990, reported on 16 May 1990 but could not perform his duties due to the protest, and was refused entry the following day for allegedly participating in the illegal strike.

Of the original thirty-seven complainants, only seven remained when the case reached the Labor Arbiter; the rest executed affidavits of desistance. The Labor Arbiter found that respondents participated in the illegal strike but declined to impose dismissal, ordering instead separation pay in lieu of reinstatement without backwages. The NLRC affirmed this ruling in toto. The Court of Appeals reversed, declaring the dismissal illegal and ordering reinstatement with backwages, relying on an SEC certification that petitioner was still operational. Petitioner then elevated the matter to the Supreme Court via petition for review on certiorari.

• Court of Appeals as Trier of Facts: Petitioner contended that the Court of Appeals erred when it acted as a trier of facts and ordered the reinstatement of respondents and payment of backwages, thereby erroneously substituting its decision for that of the Labor Arbiter.
• Findings Based on Substantial Evidence: Petitioner insisted that extensive trial on the merits was held before the Labor Arbiter, where the parties presented witnesses and documentary evidence, and that the Labor Arbiter's findings and conclusions were based on facts and substantial evidence in accordance with judicial precedents.
• Employment Conditioned on NAIA Concession: Petitioner asserted that the SEC certification was irrelevant to respondents' reinstatement because their employment was conditioned on the subsistence of petitioner's concession with NAIA, which had already terminated in 1995.
• Proof of Participation in Illegal Strike: Petitioner maintained that respondents knowingly and deliberately participated in illegal activities during the strike by defying the return-to-work order, staying outside the premises, barricading gates, and heckling and intimidating returning employees, and submitted photographs, affidavits, and memoranda to prove such participation.

• Court of Appeals' Plenary Authority: Respondents argued that, pursuant to the Court's pronouncement in St. Martin Funeral Homes vs. NLRC, the Court of Appeals has plenary authority to reverse the factual findings of the NLRC or other quasi-judicial bodies, particularly when the judgment is based on a misapprehension of facts, when relevant facts were manifestly overlooked, or when a law was erroneously misapplied.
• No Evidence of Participation: Respondents averred that there was no iota of evidence showing they trooped the line of the illegal strikers.
• No Illegal Acts Committed: Assuming arguendo that they participated in the illegal strike, respondents argued they should not be dismissed because there was no proof they committed illegal acts during the strike.
• Employment Not Conditioned on Concession: Respondents countered that petitioner and Avis Coupon Taxi are one and the same company, that Avis Coupon Taxi continues to be the exclusive concessionaire of NAIA, and that their employment was not conditioned on petitioner's concession with NAIA.

• Participation in Illegal Strike: Whether respondents participated in the illegal strike.
• Propriety of Separation Pay in Lieu of Reinstatement Without Backwages: Whether the order for payment of separation pay, in lieu of reinstatement without backwages, is proper.

• Participation in Illegal Strike: Yes. The evidence sufficiently established that respondents participated in the illegal sympathetic strike, having defied the return-to-work order and failed to satisfactorily explain their absence.
• Propriety of Separation Pay in Lieu of Reinstatement Without Backwages: Yes, with modification. Reinstatement without backwages is the appropriate relief, as respondents could not be dismissed absent proof of illegal acts during the strike; however, given the lapse of seventeen years, separation pay of one month's salary per year of service in lieu of reinstatement is proper.

• Participation in Illegal Strike: Article 212 of the Labor Code defines a strike as any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. The strike here took the form of a sympathetic or sit-down strike, where employees had no demands of their own but struck to aid dismissed co-workers. Petitioner presented affidavits and testimonies of other employees confirming respondents' participation. The office telegram directing respondents to return to work went unheeded. Borbo and Infante failed to present any record proving that 17 May 1990 was their day-off, merely alleging the proof was in petitioner's file. Castañeda could not present a sick leave form for his absence from 11 to 15 May 1990. Both the NLRC and the Court of Appeals sustained the Labor Arbiter's findings on participation; the Court of Appeals' reversal rested not on a finding of non-participation but on the absence of illegal acts during the strike.

• Propriety of Separation Pay in Lieu of Reinstatement Without Backwages: Article 264 of the Labor Code distinguishes between union officers and ordinary members in illegal strikes. Knowing participation in an illegal strike is a valid ground for termination of a union officer, but mere participation is insufficient for dismissing an ordinary union member. The employer must prove by substantial evidence—not proof beyond reasonable doubt—that the member committed illegal acts during the strike, and the striker who committed such acts must be identified. The affidavits of petitioner's witnesses did not cite particular illegal acts committed by each respondent, and no questions during the hearing were asked relative to the supposed illegal acts. The Labor Arbiter himself made no mention of illegal acts in his decision. Accordingly, respondents' dismissal was illegal. As to backwages, the "fair day's wage for a fair day's labor" principle governs: if no work was performed, no wage is due unless the employee was ready, willing, and able to work but was illegally locked out, suspended, or dismissed. This exception requires that the strike be legal, which does not obtain here. Reinstatement without backwages is therefore the proper relief. Section 4, Rule I of the Rules Implementing Book VI of the Labor Code provides reinstatement as the standard relief, giving an equivalent position if the former no longer exists. The SEC certified that petitioner was still operational as of 6 August 1999, with no document showing dissolution, and petitioner's personnel manager confirmed that Avis Coupon Taxi and G & S Transport Corporation are one and the same. No employment contract was presented to support the claim that employment was conditioned on the NAIA concession, and petitioner admitted it obtained another concession from NAIA in 2000. However, seventeen years had elapsed since the illegal dismissal. Following Association of Independent Unions in the Philippines vs. NLRC, where more than eight years had passed and separation pay was deemed more practical, the Court awarded separation pay of one month's salary for each year of service in lieu of reinstatement.

• Distinction Between Union Officers and Members in Illegal Strikes — Under Article 264 of the Labor Code, a union officer may be validly terminated for knowingly participating in an illegal strike. An ordinary union member, however, may not be dismissed for mere participation; the employer must prove by substantial evidence that the member committed illegal acts during the strike, and the particular member who committed each act must be identified. Proof beyond reasonable doubt is not required; substantial evidence suffices. The Court applied this doctrine to hold that respondents, as ordinary members, could not be dismissed absent proof of illegal acts.

• Fair Day's Wage for Fair Day's Labor — The principle holds that if no work is performed, no wage is due, unless the employee was ready, willing, and able to work but was illegally locked out, suspended, dismissed, or otherwise illegally prevented from working. This exception requires that the strike be legal. Because respondents' strike was illegal, backwages were denied; reinstatement without backwages was the appropriate relief.

• Reinstatement as Standard Relief; Separation Pay as Substitute — Under Section 4, Rule I of the Rules Implementing Book VI of the Labor Code, an employee separated without just cause shall be reinstated to his former position, or given a substantially equivalent position if the former no longer exists. Where considerable time has elapsed since the dismissal, separation pay equivalent to one month's salary per year of service may be awarded in lieu of reinstatement as a more practical remedy, following Association of Independent Unions in the Philippines vs. NLRC.

• "Mere participation in an illegal strike is not a sufficient ground for termination of the services of the union members." — This passage articulates the controlling rule distinguishing ordinary union members from union officers in illegal strikes, forming the core ratio decidendi of the case.

• "There must be proof that he committed illegal acts during the strike and the striker who participated in the commission of illegal act must be identified. 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." — This defines the evidentiary standard for terminating a union member who participated in an illegal strike, specifying that substantial evidence—not proof beyond reasonable doubt—is the threshold.

• "If there is no work performed by the employee there can be no wage or pay unless, of course, the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed or otherwise illegally prevented from working." — This states the "fair day's wage for fair day's labor" principle and its narrow exception, explaining why backwages were denied in an illegal strike context.

• St. Martin Funeral Homes vs. NLRC, G.R. No. 130866, 16 September 1998 — Cited by respondents for the proposition that the Court of Appeals has plenary authority to review factual findings of the NLRC in certiorari proceedings; the Court acknowledged this authority but found no grave abuse of discretion by the NLRC.
• Philippine Marine Officers' Guild vs. Compañia Maritima, 131 Phil. 218 (1968) — Cited for the rule that the exception to the "no work, no pay" principle—allowing backwages when an employee was ready, willing, and able to work but was illegally prevented—requires that the strike be legal.
• Philippine Diamond Hotel and Resort vs. Manila Diamond Hotel Employees Union, G.R. No. 158075, 30 June 2006 — Affirmed the Philippine Marine Officers' Guild doctrine on the illegality-of-strike requirement for backwages recovery.
• Association of Independent Unions in the Philippines vs. NLRC, G.R. No. 120505, 25 March 1999, 305 SCRA 219 — Followed for the proposition that where considerable time has elapsed since dismissal (there, more than eight years), separation pay in lieu of reinstatement is more practical and appropriate; the Court adopted the same approach given the seventeen-year lapse.
• Stamford Marketing vs. Julian, G.R. No. 145496, 24 February 2004, 423 SCRA 633 — Cited for the principle that the Labor Code protects an ordinary rank-and-file union member who participated in an illegal strike from losing his job, provided he did not commit illegal acts during the strike.

• Article 212, Labor Code — Defines "strike" as any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. Applied to characterize respondents' concerted action as a sympathetic strike, which presupposes a labor dispute; the Court found the strike illegal as it was undertaken without the requisite notice and strike vote.
• Article 264, Labor Code — Provides the consequences of an illegal strike, distinguishing between union officers (who may be terminated for knowingly participating) and ordinary union members (who may not be terminated for mere participation absent proof of illegal acts). Applied to hold that respondents, as ordinary members, could not be dismissed.
• Section 4, Rule I, Rules Implementing Book VI of the Labor Code — Provides that an employee separated without just cause shall be reinstated to his former position, or given a substantially equivalent position if the former no longer exists. Applied to establish reinstatement as the standard relief, with separation pay as substitute given the lapse of seventeen years.

Leonardo A. Quisumbing (Chairperson), Antonio T. Carpio, Conchita Carpio Morales, and Presbitero J. Velasco, Jr.