G.R.
No. 180892 UST FACULTY UNION, petitioners
v. UNIVERSITY OF SANTO TOMAS, REV. FR. ROLANDO DELA ROSA, REV. FR. RODELIO
ALIGAN, DOMINGO LEGASPI and MERCEDES HINAYON, respondents.
Promulgated:
April
7, 2009
x- -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - x
DISSENTING OPINION
CARPIO MORALES, J.:
The majority opinion holds that
respondents’ acts did not amount to unfair labor practice (ULP) primarily
because petitioner failed to adduce substantial evidence to support the charge
and that in negotiating and eventually
concluding a new collective bargaining agreement (CBA) with the Gamilla Group,
respondents merely performed their duty to bargain collectively.
I dissent.
Article 248(a) of the Labor Code
considers it an Unfair Labor Practice (ULP) for an employer to interfere,
restrain or coerce employees in the exercise of their right to
self-organization or the right to form association.
In Insular Life Assurance Co., Ltd. Employees Association – NATU v.
Insular Life Assurance Co. Ltd.,[1] this
Court held that the test of whether an employer has interfered with and coerced
employees in the exercise of their right to self-organization is whether the
employer has engaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of employees’ rights; and that it is not
necessary that there be direct evidence that any employee was in fact
intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union
conduct of the employer does have an adverse effect on self-organization and
collective bargaining.
Petitioners’ questioned acts ---
allowing the conduct of the convocation which led to the election of the
Gamilla Group; having its Chief Security Officer participate in the padlocking of the union
office at the instance of the Gamilla Group; and significantly, entering into a
new CBA while the old one was still subsisting and during the pendency of an intra-union
dispute --- reek of interference.
While, indeed, the onus probandi in ULP cases lies with the
party making the charge, in this case the Mariño Group which was ultimately
held to be the duly-elected officers of petitioner, contrary to the majority
opinion that petitioner failed to discharge said burden, I find that it did prove
that respondents were indeed guilty of ULP.
It bears emphasis that respondents’ questioned acts should be evaluated vis-a-vis the preceding and subsequent attending
circumstances, in accordance with the totality
of conduct doctrine.
Albeit the October 2, 1996 Memorandum
issued by respondent Rev. Fr. Aligan allowing the conduct of the convocation of
the University faculty clubs, on which occasion the questioned election of the
Gamilla Group was held, did not contain coercive words or terms that would call
for mandatory attendance, still, the official suspension of classes to give way
to the convocation tended to favor
the Gamilla Group. For the convergence
of the faculty members gave said group the “captive audience” and opportunity
to conduct the ambush election of union officers, the prior scheduling by the
incumbent Mariño group of a General Assembly for such election on October 5, 1996 notwithstanding,
In fine, although the Memorandum employed
the word “may” to imply that attendance was merely discretionary, that the
faculty members were excused from
holding their classes and classes were even suspended gave the insinuation that
attendance was mandatory and official in
nature.
If the Memorandum was not issued by
Rev. Fr. Aligan, would the faculty members have attended the “convocation” and would
enough votes have been supposedly mustered to elect the Gamilla Group, a
procedure which violate the union’s by-laws as the Court found in G.R. No.
131235?[2]
Respecting respondents’ dealing with the
Gamilla Group and executing a new CBA, the same is likewise a clear case of ULP.
It bears noting that this Court’s
earlier finding in Mariño et. al v.
Gamilla, et. al.[3] that Case No. NCR-OD-M-9610-016, “Eduardo
J. Mariño, Jr., et al. v. Gil Gamilla, et al.” which was filed before the Bureau of Labor Relations was neither
a labor nor an inter-union dispute, but clearly an intra-union dispute. For
what was in question was not representation or composition of the bargaining
unit but which, among the contending groups, are the true union officers. Art. 253 of the Labor Code thus applies, viz:
ART. 253.
Duty to bargain collectively when there
exists a collective bargaining agreement.–When there is a collective bargaining
agreement, the duty to bargain collectively shall also mean that neither party
shall terminate nor modify such agreement during its lifetime. However,
either party can serve a written notice to terminate or modify the agreement at
least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep
the status quo and to continue in full force and effect the terms and
conditions of the existing agreement during the 60-day period and/or until a
new agreement is reached by the parties.
(Emphasis supplied)
Clearly, respondents’ act of dealing
with and subsequently executing a new CBA with the Gamilla Group, while the old
CBA was still in force and effect is a violation of the above-quoted provision
and constitutes ULP.
The
majority holds that respondents had no reason not to recognize the Gamilla
Group and deal with it because records are bereft of a showing that the Mariño
Group informed them of its (Mariño Group’s) objection to said election and the
holding of the General Assembly on
Two observations, to my mind,
militate against this majority ruling. First, whenever a complaint involving
intra-union disputes is filed before the DOLE-Bureau of Labor Relations, the
petitioner is required to furnish copy thereof to the employer, hence,
respondents could not have been unaware that there was a pending controversy on
the union leadership as they would have been given a copy of Case No. NCR-OD-M-9610-016,
“Eduardo J. Mariño, Jr., et al. v. Gil Gamilla, et al.” (not UST
Faculty Union et. al. v. Mariño, et. al as stated in the ponencia) filed by the Mariño Group (for nullification of the
election of the Gamilla Group) which case was eventually settled in this Court’s
Decision in G.R. 131235 promulgated on November 16, 1999 in favor of the therein petitioner. In fact, even much
earlier, the Gamilla Group filed a petition with the BLR to stop the scheduled
Second, the
Mariño Group filed the ULP complaint subject of the present petition against
respondents as early as October 8, 1996
--- a mere four days after the controversial “convocation/election,” hence, respondents
were already put on guard of the pendency of several actions before the labor
tribunals, months before the new CBA was concluded on December 4, 1996, and hence,
should have proceeded with caution in dealing with the Gamilla Group.
Evidently, in executing the new CBA
with the splinter group despite knowledge of the intra-union dispute, respondents
favored said group – an act which cannot be condoned by simply invoking
respondents’ duty to bargain collectively.
Verily, respondent University is mandated under the law to bargain, but
only with the legitimate bargaining
representative and, generally, not when
there is an existing and valid CBA.
As
for the majority opinion that the Mariño group failed to inform respondent
University of its objection as “[i]n fact, there was no evidence to show that
the scheduled elections on October 5, 1996 even pushed through,” a perusal of this
Court’s Decision in G.R. No. 132400 (Mariño
v. Gamilla) would show that said election “did not push
through by virtue of the TRO,”[5]
hence, the Mariño Group could not be faulted.
Respecting the padlocking incident, that
respondent University’s Chief Security Officer/Detachment Commander of the
security force was then present lent a color of authority and legality to it, thus,
again, tending to favor the Gamilla Group. The same holds true with the detail
or presence of a guard to secure the USTFU office and deter the Mariño group
from entering the premises.
In light of all the foregoing, and
applying the totality of conduct doctrine,
I submit that respondents’ acts --- issuing the assailed Memorandum, dealing
with and entering into a CBA with the Gamilla Group despite knowledge of the
pending questions on union leadership and the existence of CBA, and
authorizing/allowing the presence of the Chief of Security during the
padlocking of the USTFU premises and posting a guard thereat --- amount to
interference under Article 248 (a) of the Labor Code which constitutes ULP.
I, therefore, vote to grant the
petition.
CONCHITA
CARPIO MORALES
Associate
Justice