FACTS:

Petitioner Club Filipino, Inc. (the company) is a non-stock, non profit corporation duly formed, organized and existing under Philippine laws.

 

Respondents on the other hand, were former officers and members of the Club Filipino Employees Association (the union).

 

The union and the company had a collective bargaining agreement. Prior to the expiration of the CBA and within the freedom period, the union made several demands for negotiation but the company replied that it could not muster a quorum, thus no CBA negotiations could be held.

 

The union submitted its formal CBA proposal to the company’s negotiating panel and repeatedly asked for the start of negotiations. No negotiations, however, took place for various reasons proffered by the company, among them the illness of the chairman of the management panel.

In order to compel the company to negotiate, respondents, as officers of the union, filed a request for preventive mediation with the National Conciliation and Mediation Board (NCMB). However, meeting concluded with a declaration by both parties of a deadlock in their negotiations.

The union filed a notice of strike with the NCMB on the grounds of bargaining deadlock and failure to bargain. The company formally responded to the demands of the union when it submitted its economic counter-proposal.

Meanwhile, the union conducted a strike vote under the supervision of the DOLE.

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

The company filed before the National Labor Relations Commission (NLRC) a petition to declare the strike illegal, and prayed that all union officers who participated in the illegal strike be considered separated from the service.

 

The labor arbiter declared the strike procedurally [infirm] and therefore illegal. The labor arbiter noted that the union failed to attach its written CBA proposal and the company’s counter-proposal to the notice of strike and to provide proof of a request for a conference to settle the dispute.

 

Thus, the notice to strike was deemed not to have been filed and the strike illegal. All the officers of the union were deemed terminated from service. However, they were entitled to separation pay equivalent to that granted to employees affected by the retrenchment program which the company had earlier launched.

Respondents appealed but the NLRC affirmed the labor arbiter. The NLRC did not see fit to pass upon the issues raised by respondents because, by the time they appealed, they had either resigned from the company or were no longer part of the union because of the election of new set of officers.

 

The CA set aside the rulings of the NLRC and the labor arbiter.

 

ISSUE:

 

Whether or not the strike was legal.

 

RULING:

 

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

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

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

 

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

 

The Implementing Rules use the words as far as practicable. In this case, attaching the counter-proposal of the company to the notice of strike of the union was not practicable. It was absurd to expect the union to produce the companys counter-proposal which it did not have. One cannot give what one does not have. Indeed, compliance with the requirement was impossible because no counter-proposal existed at the time the union filed a notice of strike. The law does not exact compliance with the impossible. Nemo tenetur ad impossibile.

 

Another error committed by the labor arbiter was his declaration that respondents, as union officers, automatically severed their employment with the company due to the alleged illegal strike. In the first place, there was no illegal strike. Moreover, it is hornbook doctrine that a mere finding of the illegality of the strike should not be automatically followed by the wholesale dismissal of the strikers from employment.

 

The law is clear:

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

 

Note that the verb participates is preceded by the adverb knowingly. This reflects the intent of the legislature to require knowledge as a condition sine qua non before a union officer can be dismissed from employment for participating in an illegal strike.

 

The provision is worded in such a way as to make it very difficult for employers to circumvent the law by arbitrarily dismissing employees in the guise of exercising management prerogative. This is but one aspect of the States constitutional and statutory mandate to protect the rights of employees to self-organization.

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