Memo Certiorari

Republic of the Philippines
Court of Appeals
Manila
ALBAY ELECTRIC CA-G.R. SP No. 149409

COOPERATIVE, INC. OS-VA-2014-01
(ALECO)/APEC-SGPHC, (NCMB-RBV-PM-NS-04-001-13 &
NCMB-RBV-PM-04-002-13)
Petitioner,
Office of the Secretary, DOLE
-versus-
THE HON. SECRETARY OF

LABOR SILVESTRE BELLO III
and ALECO LABOR
EMPLOYEES ORGANIZATION
(ALEO),
Respondents.
x-----------------------------------------x
MEMORANDUM
(For Respondent ALEO)
Respondent ALEO, through the undersigned counsel, and unto

the Honorable Court of Appeals, most respectfully sets forth:
1.0 THE PARTIES
1.1 The Private Respondents concur with the statement of Parties

of the Petition. However, San Miguel Global Power Holdings
Corporation (SGPHC), through its subsidiary Albay Power and
Energy Corporation (APEC), is the sole and exclusive agent of
the Petitioner pertaining to disputes commenced prior to the
concession, as provided on Section 7(l)(i) of their signed
Concession Agreement.
1.2 Moreover, the Secretary of the Labor and Employment issued a

Certification contained in a Letter to the Secretary of the
Department of Justice1 declaring that “Albay Power and Energy
Corporation (APEC), as the concessionaire, is also a disputant in the
labor dispute”.
1
Annex “1” to the Respondent’s Comment on the Petition
Respondent’s Memorandum[CA-G.R. SP No. 149409] |Page 2 of 31
1.3 Being a disputant in the subject labor dispute, San Miguel

Global Power Holdings Corporation (SGPHC), through its
subsidiary Albay Power and Energy Corporation (APEC), must
be joined as indispensable parties as the representative of the
Petitioner in order to arrive at a complete resolution of the
issues involved in this case. The joinder is necessary because
SGPHC through APEC is now in full control of the assets and
exclusively operating the electricity distribution franchise of
ALECO.
2.0 RELEVANT FACTS
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.
2.2 Sensing that the private concession measure is threatening the

existence of the union and the entire provision of the existing
CBA,3 the Private Respondent immediately submitted a Letter
to Expedite Grievance 4 on April 8, 2013, to NEA PS Veronica
Briones and Interim Board Chairman Joel Z. Baylon raising the
issues concerning the effect of the impending rehabilitation
measure to the employees of ALECO. However, ALECO
management failed and refused to act on the grievance of the
ALEO as provided under the mandatory grievance procedure
under the CBA.
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
5
Strike6on the same day, which was docketed as NCMB RBV-

NS-04-01-2013. The filing of the Notice of Strike (NOS) was
annotated on the upper right hand portion of the Minutes of
Conference on April 25, 2013 (Annex “F” of Complainant’s
Position Paper in NLRC Case No. 10-00186-13). The dropping of
the Preventive Mediation case before the filing of the Notice of
Strike is officially attested by the Certification7 issued by the
NCMB-DOLE Regional Office V.
2.4 ALEO submitted a Letter8, dated May 7, 2013 to NCMB

Regional Office V requesting for a representative to facilitate
the conduct of the Strike Vote on May 10, 2013.
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
7
Please see Annex “II” of ALECO’s Position Paper in OS-VA-2014-01 INC
8
9
10
Annexes “7”, “7-a”, “7-b”, “7-c” of the Omnibus Position Paper of ALEO in OS-VA-2014-01 INC
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.
2.8 On September 26, 2013, employees from Ligao City Collection

Office went to the Tabaco City Collection Office upon the order
of the ALECO management. Upon arrival at the Strike area, the
officers of ALEO explained to the ALECO employees from
Ligao City about the significance of the strike to the welfare of
the ALECO employees including those at the Ligao City
Collection Office. These same employees from Ligao City
proceeded to Legazpi City where, again, the ALEO officers and
striking members explained to them the significance of the
strike. However, upon the instigation of the ALECO
management who exercise authority over the employees from
Ligao City, these employees were made to sign an affidavit that
they were threatened by “the group of Mr.Cantal” and prevented
to enter the ALECO premises by the group headed by
Christopher Moron. However, the cordial conversation on the
pictures speaks a thousand words belying this allegation. There
is no evidence of obstruction against any employee from
entering the premises of ALECO. The pictures of the strike
clearly show that the gate is open and the Strike is on the
opposite side of the street. No allegation can disprove the facts
established by the pictures of the place and the incident
witnessed by the public who pass in front of ALECO everyday
witnessing the unimpeded entrance to the ALECO premises.
2.9 The ALECO management also concocted evidence instigating

certain employees to report to the police blotter that they were
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
stopped from conducting meter-reading activity by certain

persons. However, there is nothing on the contents of the
blotter that indicates that those incidents are connected with the
strike being conducted by ALECO. The truth of the allegations
is also questionable since not a single complaint was filed
concerning the reported incidents. The police blotter
certification only shows that a report was made to the police.
2.10 On October 23, 2013, the dreaded separation became a reality.

ALECO management issued a Notice of Retrenchment13 even
before the installation of any labor-saving device or other
measures before resorting to retrenchment as a last resort.
2.11 On January 10, 2014, after the Secretary of Labor and

Employment (SOLE for brevity) assumed jurisdiction over the
brewing labor dispute between ALECO and ALEO, SOLE
issued a Return-to-Work Order.14
2.12 Despite said order, however, ALECO, now being managed by

APEC, refused to effect actual reinstatement of the striking
employees. Thus, while the striking employees returned to
work and reported, what ALECO/APEC did was to merely
confine them in one room for a little over three weeks. After a
month of reporting and being merely confined in one room,
they realized that ALECO/APEC had no intention of
complying with the order of actual reinstatement as they were
deprived of their salaries/wages.
2.13 After more than 2 years, respondent Secretary of Labor and

Employment resolved the labor dispute through its Resolution
dated April 29, 2016. The both parties filed partial Motions for
Reconsiderations but both motions were denied and the
previous resolution was affirmed.
2.14 In the present Petition, herein respondent ALEO opposes the

grounds raised in the Petition and raises its own ground as to
how respondent Secretary of Labor and Employment
committed grave abuse of discretion amounting to lack of
jurisdiction.
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
3.0 ISSUES
3.1 Based on the pleadings submitted by the parties before this

forum, the following issues need to be resolved:
Raised by Petitioner ALECO Raised by Respondent ALEO
A. Grave abuse of discretion B. Grave abuse of discretion

amounting to lack or excess of amounting to lack or excess of
jurisdiction by the Secretary jurisdiction by the Secretary
of Labor and Employment: of Labor and Employment:
1. In awarding backwages 1. In declaring that there was

despite declaration that no lockout committed
Retrenchment was valid.
2. In declaring that the
2. In deciding the labor Retrenchment was valid
dispute beyond 30 days.
3. In failing to award
3. In awarding backwages damages and attorney’s
beyond 30 days fees
4. In failing to rule on the 4. In failing to include legal

legality of the strike interest on the award
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.
4.0 ARGUMENTS AND DISCUSSIONS
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
4.2 The jurisdiction of the Secretary of Labor to assume jurisdiction

over the subject consolidated labor dispute involving an
industry that is indispensable to national interest is provided
by Article 263(g) of the Labor Code. This jurisdiction is not
being disputed by the parties.
4.3 It was Petitioner itself which invoked the jurisdiction of the

Secretary of Labor by requesting16 that the latter assume
jurisdiction over the dispute.
4.4 Hence, the present petition is limited to grave abuse of

discretion in the exercise of jurisdiction that is legally vested
upon the Secretary of Labor.
4.5 The nature of abuse of discretion amounting to lack or excess of

jurisdiction that is rectifiable through a Certiorari Petition
under Rule 65 of the Rules of Court has been consistently defined
in Bani Rural Bank, Inc., et al., vs. De Guzman 17 and in
numerous decisions of the Supreme Court in the following
manner:
“Grave abuse of discretion, amounting to lack or excess of

jurisdiction, has been defined as the capricious and
whimsical exercise of judgment amounting to or equivalent
to lack of jurisdiction.[32] There is grave abuse of discretion
when the power is exercised in an arbitrary or despotic manner
by reason of “passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined or to
act at all in contemplation of law.”
4.6 Likewise, in Saldariega, vs. Panganiban18, the Supreme Court

ruled that for a petition for certiorari against a court which has
jurisdiction over a case, mere abuse of discretion is not enough; it
must be grave and the power must be exercised in an arbitrary and
despotic manner because of passion or hostility:
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
“It is well settled that a petition for certiorari against a court

which has jurisdiction over a case will prosper only if grave
abuse of discretion is manifested. The burden is on the part of
the petitioner to prove not merely reversible error, but grave
abuse of discretion amounting to lack or excess of jurisdiction
on the part of the public respondent issuing the impugned
order. Mere abuse of discretion is not enough; it must be grave.
The term grave abuse of discretion is defined as a capricious and
whimsical exercise of judgment as patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, as where the power is exercised
in an arbitrary and despotic manner because of passion or
hostility.[19] Certiorari will issue only to correct errors of
jurisdiction, and not errors or mistakes in the findings and
conclusions of the trial court.”
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.
A.1 Respondent Secretary did not commit grave

abuse of its discretion in awarding backwages
because of petitioner’s refusal to comply with the
Return-to-Work Order
4.8 Art. 278(g)19 of the renumbered Labor Code, cited on Par. 1,

Page 5 of the Resolution20 denying the parties’ partial Motions for
Reconsideration, provides that non-compliance with the return-
to-work order of the Secretary of Labor and Employment after
the assumption of jurisdiction over a labor dispute may result
in the payment by the non-complying employer of backwages,
damages and other affirmative reliefs.
4.9 The Primer on Strike, Picketing and Lockout of the NCMB,

whose authority is cited by the Supreme Court, in Capitol
Medical Center, Inc. v. NLRC 21, Phimco Industries Inc. vs.
19
Former Art. 263(g) of the Labor Code
20
Annex “C” of the Petition
21
496 Phil. 707, 717 (2005)
PILA, et al. 22, Sukhothai Cuisine & Restaurant23, provides the

consequence for non-compliance with the return-to-work order
which includes the payment of backwages:
“33. WHAT ARE THE LEGAL CONSEQUENCES

IN CASE OF DEFIANCE OF THE RETURN-TO-WORK
ORDER BY THE EMPLOYER AND BY THE
EMPLOYEES?
A. In case of non-compliance with the return-to-work order

in connection with the certification or assumption of
jurisdiction by the Secretary of Labor, the employees concerned
may be subjected to immediate disciplinary action, including
dismissal or loss of employment status or payment by the
locking-out employer of backwages, damages and other
affirmative relief even criminal prosecution against either or
both of them.”
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.
4.11 The liability of the employer for non-compliance with a return-

to-work order arises regardless of whether or not the principal
issue of the labor dispute has already been adjudicated, e.g.
legality of the strike or termination. This must be so otherwise the
employer could simply disregard the Order and just wait for
the resolution of the principal dispute. A Return-to-Work Order
in connection with the assumption of jurisdiction would have
no teeth of compulsion if non-compliance by the employer
would have no negative consequences for it. This would violate
the immediately executory nature of a Return-to-Work order of
the DOLE Secretary.
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
“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.
4.13 Since the respondent Secretary of Labor and Employment

awarded the payment of backwages based on a valid provision
of law, existing regulation and jurisprudence and a finding of
fact of non-compliance with the return-to-work order, his
action cannot be considered whimsical or capricious. The
Petitioner failed to show grave abuse of discretion amounting
to lack or excess of jurisdiction has been committed on this
issue.
4.14 Petitioner offers no controverting argument against the

mandate of Art. 278(g)25 of the Labor Code and the Primer on
Strike, Picketing and Lockout of the NCMB which allows the
award of backwages as a consequence of non-compliance with
a return-to-work order.
4.15 Petitioner relies on the ruling of the Supreme Court in Beralde,

et al, vs. Lapanday Agricultural and Development
Corporation26 where the it was mentioned:
“Consequently, petitioners are not entitled to backwages as it is

well settled that backwages may be granted only when there is a
finding of illegal dismissal.”
4.16 Petitioner relied on the above-cited ruling by treating it as an

absolute rule without considering the facts of the cases where
the declaration was made by the Supreme Court. The ruling
that backwages may be granted only when there is a finding of illegal
dismissal was previously cited in J.A.T. General Services v.
NLRC27, Manila Water Company, Inc. v. Peña28, San Miguel
25
26
G.R. Nos. 205685-86, June 22, 2015
27
421 SCRA 78, 91 (2004)
28
G.R. No. 158255, 8 July 2004
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.
4.19 More importantly, what the petitioner naively overlooked is the

fact that in the PNCC vs SOLE, (1) there is no ruling on the
payment of Backwages AND (2) the issue of Backwages was
not even discussed. To invoke Stare Decisis, the case being
invoked must expressly lay down a principle of law and laying
a principle of law cannot be made by ominous silence from
which nothing could be inferred.
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
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.
4.21 Clearly, no grave abuse of discretion amounting to lack or

excess of jurisdiction can be ascribed to respondent Secretary of
Labor and Employment concerning its ruling on the award of
backwages.

abuse of its discretion in resolving the consolidated
labor dispute beyond the 30-day period.
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.
4.23 The above-cited provision uses the word “SHALL” to qualify

the period within which to resolve the dispute.
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]).”
4.25 Also in Loyola Grand Villas Homeowners Assoc. Inc. vs.

CA35, the Supreme Court declared that the meaning of the term
“SHALL” is to be construed from the language of the statute as
a whole:
“However, the word “must” in a statute, like “shall,” is not

always imperative. It may be consistent with an exercise of
discretion. In this jurisdiction, the tendency has been to
interpret “shall” as the context or a reasonable construction of
34
G.R. No. 112099, February 21, 1995
35
G.R. No. 117188, August 07, 1997
the statute in which it is used demands or requires.[11] This is

equally true as regards the word “must.” Thus, if the language
of a statute considered as a whole and with due regard to its
nature and object reveals that the legislature intended to use the
words “shall” and “must” to be directory, they should be given
that meaning.[12]”
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.”
4.27 Moreover, under Par. 3 Section 3 Article XIII of the 1987

Constitution underscores the preferential use of voluntary
modes in settling disputes, including conciliation:
“The State shall promote the principle of shared responsibility

between workers and employers and the preferential use of
voluntary modes in settling disputes, including conciliation,
and shall enforce their mutual compliance therewith to foster
industrial peace.“
4.28 Both the above-cited provision of the Labor Code on

conciliation and the Constitution points to a directory meaning
of the term “SHALL” in order to give way to the success of the
conciliation process.
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.
4.30 Another cause of delay was the pleadings submitted by the

parties. Petitioners filed their Position Paper on or about March
13, 2014. Almost a year after that, they again filed a
Supplemental Position Paper. As admitted by Petitioner, other
pleadings and motions were subsequently filed after this. Add
to that the fact that simultaneous with the filing of these
pleadings, continued mediation-conciliation proceedings were
conducted to settle the dispute speedily. It would thus be unfair
on the part of the respondent Secretary of Labor and
Employment if, after petitioner filed its pleadings, the SOLE
would be faulted by the same Petitioner, for giving time to

study and evaluate the arguments raised in its pleadings.
4.31 The effort of the Secretary of Labor in resorting to conciliation

and mediation and taking time to consider the pleadings of the
parties before resolving the dispute on the merits cannot be
considered grave abuse of discretion because its action is
anchored on a valid provision of law and policy enshrined on
the fundamental law of the land. There is nothing capricious or
whimsical on the action of the Honorable Secretary of Labor
and Employment.
4.32 Moreover, Rule XXII, Book V of the Implementing Rules of

the Labor Code, as amended by DOLE Department Order No.
040-H-13 issued by Hon. Secretary Baldoz, as well as Section 6
of the Operational Guidelines of Department Order No. 40-
G-03, Series of 2010 (both of which have been invoked by Petitioner
in their Petition) clearly state that the Decision shall be rendered
within thirty (30) calendar days from submission of the case
for resolution.
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.
4.34 More significantly, the renumbered Article 292(i) of the Labor

Code expressly provides that a case or matter shall be deemed
submitted for decision or resolution upon the filing of the last
pleading or memorandum.
4.35 The last pleading36 before the Secretary of Labor and

Employment was submitted on March 16, 2016. It is only after
this date, or on March 17, 2016, that the case can, of legal
necessity, be considered as submitted for resolution.
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
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.
4.38 Considering the complexity of the issues involved, the delay of

thirteen (13) calendar days due to the conduct of conciliation
proceedings and numerous pleadings can hardly be considered
as arbitrary or despotic in character. This period of delay does
not amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined by law.
4.39 Again, based on the circumstances and period of delay, the

petitioner failed to establish that respondent Secretary of Labor
and Employment committed grave abuse of discretion
amounting to lack or excess of jurisdiction.

abuse of its discretion in awarding backwages
beyond the 30-day period.
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.
4.42 As explained on the immediately preceding Section of this

Memorandum, the 30-day period within which to render a
Decision does not strictly commence on the date of assumption
of jurisdiction but on the date the case was submitted for
resolution.
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
position prior to the strike. Petitioner also failed and refused to

reinstate the employees on the payroll.
4.44 The incomplete Attendance Log Sheet that is being belatedly

presented by the petitioner before this forum does not support
its cause but only affirms the fact that the respondent
employees complied with the return-to-work order while the
petitioner failed to do so up to the present on the flimsy excuse
that it has means to pay the salary of the workers despite the
continuous operation of the distribution utility.
4.45 The consequence of paying backwages under Article 278(g) of

the Labor Code is predicated on a party’s failure to comply
with the Return-to-Work Order.
4.46 The petitioner failed to comply with the return-to-work order

since January 10, 2014 up to the present. It is only just,
reasonable and proper that the petitioner should suffer the
consequences during the entire period that it fails and refuses
to comply with the return-to-work order. Its refusal to comply
within the initial 30 days is no less contemptuous than its
continuing refusal up to the present.
4.47 On the other hand, the respondent ALEO members complied

with the return-to-work order and continue to insist on their
right to return to their employment by persistently questioning
the validity of the retrenchment on the assailed Resolution.

abuse of its discretion in failing to resolve the
legality of the Strike.
4.48 The Strike conducted by respondent ALEO is legal. Its legality

has been extensively argued and supported with evidence by
the respondent its Omnibus Position Paper which is attached
as Annex “F” to the present Petition. Those arguments and
evidences are adopted by reference should the Honorable
Court of Appeals decides to review the legality of the Strike.
4.49 The Strike was based on valid and legal grounds provided
under the Labor Code, its Implementing Rules & Regulations
and the Rulings of the Supreme Court. This matter is discussed

by respondent ALEO on Pages 6 to 30 of the Omnibus
Position Paper and on Pages 31 to 33 of the Comment to the
Petition.
4.50 Respondent ALEO complied with all the procedural

requirements before they conducted a strike. This matter is
discussed by respondent ALEO on Pages 30 to 50 of the
Omnibus Position Paper.
4.51 Once the Strike conducted by respondent ALEO is declared

legal, the award of backwages should be computed from the
date of the Strike up to the finality of the Resolution of the
Secretary of Labor and Employment.
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:
“The private respondents insist that the petitioners-employees

were validly dismissed for serious misconduct and violations of
labor laws and lawful orders of the Labor Secretary, hence not
entitled to reinstatement nor separation pay in lieu of
reinstatement.
This petition must be granted, albeit not on the grounds

advocated by the petitioners.
37
G.R. No. 120482, January 27, 1997
The private respondents can no longer contest the legality

of the strike held by the petitioners on 13 December 1989,
as the private respondents themselves sought compulsory
arbitration in order to resolve that very issue, hence their
letter to the Labor Secretary read, in part:
This is to request your good office to certify for

compulsory arbitration or to assume jurisdiction
over the labor dispute (strike continuing) between R.B.
Liner Inc . . . . and the Lakas Manggagawa sa Pilipinas .
. .”
4.55 Any ruling on the legality or legality of the Strike would be

incongruous to the ruling on the validity of the Retrenchment.
The respondent Secretary of Labor and Employment has
already ruled that the employer-employee relationship was
severed by the Retrenchment implemented by the petitioner
which requires the payment of Separation Pay for its validity38.
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.
4.57 As argued by the respondent on the Comment to the Petition,

Petitioner cannot demand that the illegality of the strike be resolved
for it would place Petitioner on a very conflicting position. The
Petitioner is in effect saying that, yes, it is unqualifiedly willing to
give them their retrenchment package or enter into an “out-of-the-
box” settlement in lieu of the retrenchment package, but, if the strike
is declared illegal, we will withhold the same. Apparently, Petitioner
was wagering on the outcome of the SOLE’s Resolution on the issue
of the validity of the retrenchment it effected. But even if the
retrenchment effected was found to be valid (as it, in fact was found to
be so), still the issue on the legality or illegality of the strike would be
moot and academic given the plenary offer of the retrenchment
package to all of Petitioner’s employees, including herein respondents.
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 ]
The offer was a condonation of any illegality in the strike, assuming

but without conceding that the strike was illegal.
4.58 Further, considering that the issue on the sufficiency of the

strike votes has clearly been established, it is within the SOLE’s
jurisdiction, authority and discretion to leave the issue in order
to focus on more substantial issues.
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.
ON THE OTHER HAND, THE RESPONDENT SECRETARY OF

LABOR AND EMPLOYMENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN THE FOLLOWING INSTANCES:
B.1 Respondent Secretary committed grave abuse

of its discretion amounting to lack or excess of
jurisdiction in declaring that no Lockout was
committed by the Petitioner thereby totally
ignoring the provision of Section 3 of
Presidential Decree No. 823.
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.
Lockout, as defined under Article 219[212 subparagraph (p),

Book V of the Labor Code of the Philippines, as amended, refers
to any temporary refusal of an employer to furnish work as a
result of an industrial or labor dispute.
4.61 It is true that the Labor Code, which took effect on January 1,
1975, provides definition for a Lockout.
4.62 However, a subsequent law, Presidential Decreee No. 823,

which defined another form of Lockout that is specifically
applicable to the present case – a Lockout in the form of Mass

Retrenchment:
“Section 3. The term "lockout" shall comprise

shutdowns, mass retrenchment and dismissals without
previous written clearance from the Secretary of Labor or
his duly authorized representative.”
4.63 Presidential Decreee No. 823 took effect on November 5, 1975

subsequent to the effectivity of the Labor Code. Hence, the
Labor Code could not have prospectively repealed the
provisions of this law because under Article 7 of the Civil
Code, “Laws are repealed only by subsequent ones.”
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:
“Generalia specialibus non derogant (a general law does not

nullify a specific or special law).[102] This is so even if the
provisions of the general law are sufficiently comprehensive to
include what was set forth in the special act.[103] The special
act and the general law must stand together, one as the law of
the particular subject and the other as the law of general
application.[104] The special law must be taken as intended to
constitute an exception to, or a qualification of, the general act
or provision.”
4.65 The definition of Lockout under the renumbered Article

219(p)40 the Labor Code, as a “refusal to furnish of an employer to
furnish work as a result of an industrial dispute or labor dispute” is
not inconsistent with the definition of a form of Lockout under
P.D. No. 823 through “mass retrenchment and dismissals without
previous written clearance from the Secretary of Labor or his duly
authorized representative”. Under the Labor Code, retrenchment
is a manner of severing employer-employee relationship.
However, when retrenchment is implemented en masse, Section
3 of P.D. No. 823 considers it a Lockout unless a previous written
clearance from the Secretary of Labor or his duly authorized
representative.
39
G.R. No. 156052, February 13, 2008
40
Former Article 212 of the Labor Code
4.66 Section 3 of P.D. 823 is specifically applicable to the

retrenchment implemented by the petitioner because it was
executed en masse without securing a previous written
clearance from the Secretary of Labor or his duly authorized
representative.
4.67 Had respondent Secretary of Labor and Employment applied

Section 3 of P.D. No. 823, it should have declared the mass
retrenchment implemented by ALECO as invalid for being an
illegal Lockout which failed to comply with the requirements of
a valid lockout. As a consequence, the retrenchment would be
invalid and the employees would be entitled to return to work.
If the principle of Strained Relations is applied, the employees
should have been entitled to backwages not only because of
ALECO’s non-compliance with the return-work-order but
because of the illegality of the Lockout in the form of mass
retrenchment.
4.68 It was the duty of the Secretary of Labor and Employment to

apply the definition of Lockout under Section 3 of P.D. No. 823.
As a Secretary of Labor and Employment it is her sworn duty to
implement the law pursuant to the policy under Section 18,
Article II of the Constitution that “The State affirms labor as a
primary social economic force. It shall protect the rights of workers
and promote their welfare.”
4.69 By refusing to apply Section 3 of P.D. No. 823 without any

valid justification, the respondent Secretary of Labor and
Employment committed grave abuse of discretion amounting
to lack or excess of jurisdiction.

jurisdiction in declaring that the Retrenchment
implemented by ALECO is legal despite non-
compliance with the requirements for a valid
retrenchment.
4.70 FIRST, as discussed above, ALECO implemented a mass

retrenchment without securing a written clearance from the
Secretary of Labor and Employment. The retrenchment

implemented by ALECO is a form of Lockout as defined under
Section 3 of P.D. No. 823. Without complying with the
substantive and procedural requirements for a valid Lockout,
the mass retrenchment implemented by ALECO was illegal.
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.
4.72 SECOND, the mass retrenchment implemented by ALECO did

not comply with the requirements of a valid retrenchment
based on the existing jurisprudence of the Supreme Court.
4.73 The assailed Resolution42 of respondent Secretary cited the

following requirements laid down by the Supreme Court in
FASAP vs. PAL, Inc.43:
(1) That retrenchment is reasonably necessary and likely to

prevent business losses which, if already incurred, are not
merely de minimis, but substantial, serious, actual and real, or
if only expected, are reasonably imminent as perceived
objectively and in good faith by the employer;
(2) That the employer served written notice both to the

employees and to the Department of Labor and Employment at
least one month prior to the intended date of retrenchment;
(3) That the employer pays the retrenched employees separation

pay equivalent to one (1) month pay or at least one-half (½)
month pay for every year of service, whichever is higher;
(4) That the employer exercises its prerogative to retrench

employees in good faith for the advancement of its interest and
41
Former 263(f) of the Labor Code
42
Resolution dated December 2, 2016
43
G.R. No. 178083, October 02, 2009
not to defeat or circumvent the employees' right to security of

tenure; and,
(5) That the employer uses fair and reasonable criteria in

ascertaining who would be dismissed and who would be
retained among the employees, such as status, efficiency,
seniority, physical fitness, age, and financial hardship for
certain workers.
4.74 On Par. 1 Page 4 of the assailed Resolution44, a conclusion was

made:
“Hence, the requirements for a valid retrenchment such as

prevention of business losses, 30-day notice rule both to the
DOLE and the Company’s employees and payment of
separation benefits were complied with by the company.”
4.75 From the above conclusion, it is obvious that respondent

Secretary of Labor totally ignored and dispensed with the First
and Last requirement laid down by the Supreme Court in
FASAP vs. PAL Inc.:
“(1) That retrenchment is reasonably necessary and likely to

prevent business losses which, if already incurred, are not
merely de minimis, but substantial, serious, actual and real, or
if only expected, are reasonably imminent as perceived
objectively and in good faith by the employer;”
“(5) That the employer uses fair and reasonable criteria in

ascertaining who would be dismissed and who would be
retained among the employees, such as status, efficiency,
seniority, physical fitness, age, and financial hardship for
certain workers.”
4.76 Respondent Secretary of Labor and Employment simply

ignored the total absence of evidence on record of any
reasonable criteria in ascertaining who would be dismissed and
who would be retained among the employees.
4.77 Likewise, there is no evidence on record that the Retrenchment

implemented by ALECO was necessary to prevent losses.
44
Resolution dated December 2, 2016
4.78 In its own Position Paper45, ALECO admits that its losses are
primarily caused by Systems Losses and Collection Inefficiency:
These twin problems of 13% unrecoverable system loss and

20% collection inefficiency are more than sufficient to put any
distribution utility into financial perdition.
4.79 There is no evidence on record that ALECO’s systems losses

and collection inefficiency are caused by the entire personnel of
the cooperative so as to warrant their mass lay-off.
4.80 In fact, the website of the Department of Energy prescribes the

measures for systems loss reduction for utilities and none of
these measures include mass retrenchment or even reduction of
personnel:
Systems Loss Reduction for Utilities
As part of the government's efforts to provide reasonable retail

prices of electricity by setting annual loss caps and enhancing
Performance Improvement Program, Republic Act 7832
otherwise known as the Anti-Pilferage of Electricity and Theft
of Electric Transmission Lines/Materials Act was signed in
1994. Likewise, rural electric cooperatives (RECs) are provided
assistance by the Task Force on System Loss Reduction
Program (SLRP) by recommending appropriate measures such
as system review and evaluation, testing and calibration
of kilowatt-hour meters, system load balancing, thermal
scanning of lines and equipment load management.46
4.81 There is no evidence whatsoever that collection inefficiency

was caused by the personnel of ALECO. It is an
incontrovertible human experience that collection of obligation
is largely dependent on the compliance of the debtor. The
inefficiency in the collection of electric bills is commonly caused
by the non-payment of members-consumers. ALECO has not
shown any evidence to the contrary.
45Page 10, Position Paper of ALECO before the DOLE

46
https://www.doe.gov.ph/government-enercon-program/philippine-energy-efficiency-and-clean-energy-
programs/2187-peecep-system-loss-reduction
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.
4.83 On January 20, 2015, APEC General Manager Emmanuel

Imperial already admitted in open Public Session before the
SanggunianPanlalawigan of the Province of Albay that systems
loss skyrocketed to forty percent (40%), collection efficiency is
down to fifty percent (50%) and because of erroneous billing
only thirty percent (30%) of the consumers are able to pay their
bills.
4.84 Moreover, the Notice of Retrenchment itself expressly states

that “those who will be retrenched shall be prioritized in hiring by the
Concessioner”. If there will be re-hiring after the retrenchment
and those who will be retrenched are the ones who will be
prioritized in hiring, then there is no point in laying-off the
employees in the first place.
4.85 The obvious reason for the mass retrenchment implemented by

ALECO is to circumvent the benefits of the union members
under the CBA. By implementing a mass retrenchment, the
union and the CBA will cease to exist. Re-hiring the employees
will give the ALECO and its Concessioner the option to accept
or refuse them and provide only the minimum salaries and
benefits which are much less than what are provided in the
CBA. This, definitely, is not a legal ground for retrenchment.
because it directly defeats or circumvents the employees' right
to security of tenure.
4.86 By intentionally adopting the measure to defeat and circumvent

the employees' right to security of tenure, ALECO exercised
retrenchment in evident bad faith again rendering it patently
illegal.
4.87 In the above-cited case of FASAP vs. PAL, the Supreme Court
also stipulated:
“On the requirement that the prerogative to retrench must be

exercised in good faith, we have ruled that the hiring of new
employees and subsequent rehiring of "retrenched"
employees constitute bad faith;[87] that the failure of the
employer to resort to other less drastic measures than
retrenchment seriously belies its claim that retrenchment was
done in good faith to avoid losses;[88] and that the
demonstrated arbitrariness in the selection of which of its
employees to retrench is further proof of the illegality of the
employer's retrenchment program, not to mention its bad
faith.[89]”
4.88 After the implementation of mass retrenchment, ALECO re-

hired some of the retrenched employees. The evident bad faith
of ALECO is worsened by the fact that, through its
Concessioner-Agent SMC Global Power Holdings Corporation,
it engaged the services of a sub-contractor Utility Solutions Inc.
(USI), to perform the functions of the retrenched rank and file
employees. This fact is admitted by NGC and USI on their
Answer with Counterclaim47 in the case for violation of D.O.
18-A-001 docketed as RO500-TSSD-1227-2013-D.O. 18-A-001
before DOLE Regional Office No. V. In fact, the Pleading boldly
incorporated the contents of the Service Agreement between
SMC Global Power Holding and USI for the meter reading and
other functions in the operation of ALECO. These facts reek of
bad faith and malice attendant to the mass retrenchment that
was implemented by ALECO.
4.89 It is crystal clear that the mass retrenchment was implemented

by ALECO in bad faith and therefore there is failure to comply
with the fourth requirement for a valid retrenchment that was
laid down by the Supreme Court in FASAP vs. PAL, Inc..
4.90 Hence, there is no evidence on record that the retrenchment

implemented by petitioner ALECO complied with the first
requirement for a valid retrenchment that retrenchment must
be reasonably necessary and likely to prevent business losses.
47
Annex “28” of respondent’s Omnibus Position Paper at the DOLE
4.91 Respondent Secretary of Labor and Employment committed

grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared the retrenchment legal despite
absence of evidence that petitioner has complied with the first,
fourth and last requirement for a valid retrenchment.
4.92 In Sandoval vs. Clave48, the Supreme Court ruled:
“While as a rule the findings of fact in appeals by certiorari are

binding on the Supreme Court, a finding of fact that is not
supported by competent evidence should be disregarded.[8]”

jurisdiction when it failed to grant respondent
ALEO’s prayer damages and attorney’s fees.
4.93 As discussed above, the retrenchment implemented by the

petitioner was illegal for failure to comply with the
requirements prescribed by the rulings of the Supreme Court.
4.94 The retrenchment was implemented in bad faith because it was

not necessary to prevent losses. In fact, it was not even made a
conditions on the Concession Agreement for the assumption of
the APEC/San Miguel as concessionaire to manage ALECO.
4.95 As a refusal of the lockout/retrenchment implemented by

ALECO and its refusal to comply with the Return-to-Work
Order of the Secretary of Labor after assumption of jurisdiction,
the ALEO members were deprived of their regular income,
forcing them to incur debts to feed their families, and send their
children to school. Each member of ALEO suffered actual
damages in the amount of not less than Three Thousand Pesos
(P5,000.00) for every month that they remain jobless as a
consequence of the illegal measure implemented by ALECO.
4.96 The Complainants suffered as a consequence of the unlawful

and deliberate acts of the Respondent which were done in bad
faith against the rights of the employees to security of tenure.
They were forced to litigate in order to assert and protect their
48
G.R. No. L-49875, November 21, 1979
rights as employees. They are entitled to moral, exemplary and

actual damages.
4.97 As regards the entitlement of moral damages, the Supreme Court

explained in the case of Montinola vs. Philippine Airlines,49
that “[t]he employee is entitled to moral damages when the employer
acted a) in bad faith or fraud; b) in a manner oppressive to labor; or c)
in a manner contrary to morals, good customs, or public policy.”
4.98 In the present case, the acts of ALECO in refusing to allow

ALEO to participate in the negotiations, in refusing to negotiate
with ALEO despite its status as the duly certified Collective
Bargaining Unit, in unilaterally effecting the dismissal of the
entire ALECO workforce and, in the process, virtually
obliterating the existence of ALEO and the CBA, the obvious
attempt to bust ALEO, the underhanded scheme employed in
dismissing the employees, the fact that ALECO refused to
admit the strikers back to work despite the return-to-work
order issued by the Secretary of the DOLE, and this, for the sole
reason that ALECO only wanted to give the concessioner
sufficient room to manage ALECO – all these point to no other
conclusion than that the acts of ALECO were done in bad faith,
in a manner grossly oppressive to labor and contrary to morals,
good customs, or public policy. With this, the award of moral
damages is therefore proper.
4.99 As regards the award of exemplary damages, in the same case of

Montinola vs. Philippine Airlines, the Supreme Court had the
occasion to rule, thus:
Under Article 2229 of the Civil Code, "[e]xemplary or

corrective damages are imposed, by way of example or
correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages." As this court
has stated in the past: "Exemplary damages are designed by our
civil law to permit the courts to reshape behaviour that is
socially deleterious in its consequence by creating negative
incentives or deterrents against such behaviour."
49
G.R. No. 198656, September 8, 2014.
If the case involves a contract, Article 2332 of the Civil Code

provides that "the court may award exemplary damages if the
defendant acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner." Thus, in Garcia v. NLRC, this court
ruled that in labor cases, the court may award exemplary
damages "if the dismissal was effected in a wanton, oppressive
or malevolent manner."
It is socially deleterious for PAL to suspend Montinola without

just cause in the manner suffered by her. Hence, exemplary
damages are necessary to deter future employers from
committing the same acts.
4.100 Here, there is necessity to award exemplary damages as the

underhanded and labor-oppressive schemes of ALECO are
clearly deleterious, violating as they did several mandatory
provisions of our laws. In fact, the termination of an entire
workforce without resorting to less drastic labor-saving devices
caused unwarranted hardships on all the employees. Clearly,
the dismissal was effected in a wanton, oppressive and
malevolent manner, thereby justifying the award of exemplary
damages.
4.101 As to the award of attorney’s fees, Article 2208 of the Civil

Code provides that:
ART. 2208. In the absence of stipulation, attorney’s fees and

expenses of litigation, other than judicial costs, cannot be
recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant’s act or omission has compelled the

plaintiff to litigate with third persons or to incur expenses to
protect his interest;
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;
xxx
(7) In actions for the recovery of wages of household helpers,

laborers and skilled workers;
4.102 All the above-mentioned instances are applicable in the present

case, thus indubitably warranting the award of attorney’s fees.
4.103 Thus, first, considering that exemplary damages is proper in

the present case, attorney’s fees is also proper. Second, since the
employees were compelled to litigate in order to assert and
protect their right, they are also entitled to Attorney’s
equivalent to 10% of any award that they may be entitled.
Third, ALECO was guilty of gross and evident bad faith in
refusing to satisfy ALEO’s plainly valid, just and demandable
claim when the latter tried to negotiate with the former for the
protection of the constitutionally protected right to security of
tenure of the employees; and
5.0 PRAYER
IN VIEW OF THE FOREGOING, the respondent Labor Union

most fervently:
a. That the Petition on the grounds raised therein by the Petitioner be

denied;
b. That the declaration of a valid retrenchment on the assailed

Resolution be reversed and the retrenchment/lockout
implemented by the petitioner be declared invalid;
c. That ALECO/APEC/SGPHC be ordered to pay moral damages in

the mount of ONE HUNDRED THOUSAND PESOS
(Php100,000.00), exemplary damages in the amount of ONE
HUNDRED THOUSAND PESOS (Php100,000.00) and Attorney’s
Fees equivalent to 10% of the total award for each ALEO member
included herein, following the case of Montinola vs. Philippine
Airlines;
d. That ALECO/APEC/SGPHC be ordered to pay nominal damages

in the amount of FIFTY THOUSAND PESOS (Php50,000.00) to
each member of ALEO.
e. That ALECO/APEC/SGPHC or their successors in management

be ordered to reinstate the member of ALEO who participated in
good faith in a valid strike;
f. That ALECO/APEC/SGPHC be held liable and ordered to pay

back-wages from the time of herein employees were illegally
dismissed on December 31, 2013 until their actual reinstatement.
Other reliefs just and equitable under the premises are likewise
prayed for.
September 4, 2017. Legazpi City for Manila.
REGALA LLAGAS & LELIS LAW OFFICES

COUNSEL FOR THE RESPONDENT ALEO
3nd Flr. Gimenez Bldg., Rizal St., Legazpi City
Phone: +63524804480; Cell: +639088663419 | rlla.firm@gmail.com
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
Copy furnished through registered mail with return card because of

distance and lack of messengerial service:
ATTY. RAMIRO BORRES

Petitioner’s Main Counsel
Unit 1609-1610, Tycoon Center, Pearl Drive Ortigas Center, 1605
Pasig City, Metro Manila

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Republic of the Philippines

ALBAY ELECTRIC CA-G.R. SP No. 149409

THE HON. SECRETARY OF

Respondent ALEO, through the undersigned counsel, and unto

1.0 THE PARTIES

1.1 The Private Respondents concur with the statement of Parties

1.2 Moreover, the Secretary of the Labor and Employment issued a

1.3 Being a disputant in the subject labor dispute, San Miguel

2.0 RELEVANT FACTS

2.2 Sensing that the private concession measure is threatening the

Strike6on the same day, which was docketed as NCMB RBV-

2.4 ALEO submitted a Letter8, dated May 7, 2013 to NCMB

2.8 On September 26, 2013, employees from Ligao City Collection

2.9 The ALECO management also concocted evidence instigating

stopped from conducting meter-reading activity by certain

2.10 On October 23, 2013, the dreaded separation became a reality.

2.11 On January 10, 2014, after the Secretary of Labor and

2.12 Despite said order, however, ALECO, now being managed by

2.13 After more than 2 years, respondent Secretary of Labor and

2.14 In the present Petition, herein respondent ALEO opposes the

3.1 Based on the pleadings submitted by the parties before this

Raised by Petitioner ALECO Raised by Respondent ALEO

A. Grave abuse of discretion B. Grave abuse of discretion

1. In awarding backwages 1. In declaring that there was

4. In failing to rule on the 4. In failing to include legal

4.0 ARGUMENTS AND DISCUSSIONS

4.2 The jurisdiction of the Secretary of Labor to assume jurisdiction

4.3 It was Petitioner itself which invoked the jurisdiction of the

4.4 Hence, the present petition is limited to grave abuse of

4.5 The nature of abuse of discretion amounting to lack or excess of

“Grave abuse of discretion, amounting to lack or excess of

4.6 Likewise, in Saldariega, vs. Panganiban18, the Supreme Court

“It is well settled that a petition for certiorari against a court

A.1 Respondent Secretary did not commit grave

4.8 Art. 278(g)19 of the renumbered Labor Code, cited on Par. 1,

4.9 The Primer on Strike, Picketing and Lockout of the NCMB,

PILA, et al. 22, Sukhothai Cuisine & Restaurant23, provides the

“33. WHAT ARE THE LEGAL CONSEQUENCES

A. In case of non-compliance with the return-to-work order

4.11 The liability of the employer for non-compliance with a return-

4.13 Since the respondent Secretary of Labor and Employment

4.14 Petitioner offers no controverting argument against the

4.15 Petitioner relies on the ruling of the Supreme Court in Beralde,

“Consequently, petitioners are not entitled to backwages as it is

4.16 Petitioner relied on the above-cited ruling by treating it as an

4.19 More importantly, what the petitioner naively overlooked is the

4.21 Clearly, no grave abuse of discretion amounting to lack or

A.2 Respondent Secretary did not commit grave

4.23 The above-cited provision uses the word “SHALL” to qualify

4.25 Also in Loyola Grand Villas Homeowners Assoc. Inc. vs.

“However, the word “must” in a statute, like “shall,” is not

the statute in which it is used demands or requires.[11] This is

4.27 Moreover, under Par. 3 Section 3 Article XIII of the 1987

“The State shall promote the principle of shared responsibility

4.28 Both the above-cited provision of the Labor Code on

4.30 Another cause of delay was the pleadings submitted by the

would be faulted by the same Petitioner, for giving time to

4.31 The effort of the Secretary of Labor in resorting to conciliation

4.32 Moreover, Rule XXII, Book V of the Implementing Rules of

4.34 More significantly, the renumbered Article 292(i) of the Labor

4.35 The last pleading36 before the Secretary of Labor and

4.38 Considering the complexity of the issues involved, the delay of

4.39 Again, based on the circumstances and period of delay, the

A.3 Respondent Secretary did not commit grave