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OFFICIAL STATEMENT OF THE
UNIVERSITY OF SAN AGUSTIN ON THE NOTICE OF STRIKE
FILED ON APRIL 7, 2005 BY THE UNIVERSITY OF SAN AGUSTIN EMPLOYEES UNION - FFW Balancing
the principle of sub judice in view of the pendency of CA-G.R. SP No.
85317 entitled “University of San Agustin v. The Secretary of Labor and
Employment, et al.” before the Honorable Court of Appeals with the appeal by
various members of the Augustinian
educational community, the alumni and media personalities for the
University of San Agustin to respond to the Notice of Strike filed by the
University of San Agustin Employees Union - FFW (USAEU-FFW) on April 7, 2005
with the National Conciliation and Mediation Board (NCMB) and the charge of
union busting, the University of San Agustin deems it best to reproduce in
toto below the body of the “Motion to Dismiss and to Strike Out Notice of
Strike Dated 7 April 2005 of the University of San Agustin Employees Union -
FFW” filed by the University’s legal counsel with the NCMB. “MOTION TO DISMISS AND
TO STRIKE OUT NOTICE OF STRIKE DATED 7 APRIL 2005 OF THE UNIVERSITY OF SAN AGUSTIN EMPLOYEES UNION
- FFW Petitioner University of San Agustin, by counsel, most
respectfully alleges: 1. Except to dismiss the notice, the National Conciliation
Mediation Board (“NCMB”) has no jurisdiction to entertain and act
on the Notice of Strike (Annex “A”) filed on 7 April 2005 by the
University of San Agustin Employees Union - FFW (“USAEU-FFW”) in light of the
pendency of CA-G.R. SP No. 85317 captioned “University of San Agustin v. The
Secretary of Labor and Employment, et al.”
2.
The Honorable Court of Appeals and not the NCMB undoubtedly has jurisdiction
over all aspects of the present labor dispute between the University of San
Agustin (“University”) and the USAEU-FFW including the issue of whether the
University has engaged in union busting by serving notices of termination to
the Union officers pursuant to the Decision dated 4 March 2005 of the Court of
Appeals in CA-G.R. SP No. 85317, which on page 10 expressly states: “The
Union officers, as a result [of the illegal strike], are deemed to have lost
their employment status for having knowingly participated in an illegal
act. The petitioner, may, at its
option serve notice of their termination from employment.” (Underscoring
supplied.) 2. Not only does the Court of Appeals have jurisdiction
over the subject matter, i.e., present labor dispute, it has jurisdiction over
the persons of the Union members and officers who are private respondents in CA
- G.R. SP No. 85317 and who, through the Union’s counsel, submitted to the
appellate court’s jurisdiction. 3. The third issue raised by USAEU-FFW in its Motion for Partial
Reconsideration before the Court of Appeals is whether there was basis to deem
the union officers to have lost their employment status. USAEU-FFW’s present assertion before the
NCMB that the University has engaged in union busting is intimately intertwined
and will necessarily touch on the issue of whether there was basis to deem the
union officers to have lost their employment status as ruled by the Court of
Appeals (which the USAEU-FFW is asking the Court to reconsider) as well as the
central issue of the legality of the
Union strike on 19 September 2003. In short, USAEU-FFW’s assertion of union
busting before the NCMB is not only a direct and contemptible affront to the
jurisdiction of the Honorable Court of Appeals, it also constitutes forum-shopping. 4. The NCMB’s
attention is called to the second paragraph of Article 264 of the Labor Code which expressly provides that
“[n]o strike or lockout shall be declared x x x during the pendency of cases
involving the same grounds for the strike x x x.” The University therefore encourages the NCMB to admonish the
terminated Union officers of the USAEU-FFW, who are now instigating a strike
and who already have nothing to lose, to think of the rest of the Union members
whom they are bringing to a second illegal strike. A Union member who participates in the second strike while the
Union’s Motion for Partial Reconsideration is pending before the Court of
Appeals runs the risk of being considered and found of having committed an
“illegal act” and to have lost his/her employment status. No employee may engage in a strike when the issue of the strike –
whether the Union officers are deemed to have lost their employment status – is
pending before the Court of Appeals, on appeal from the Decision of the Secretary
of Labor and Employment under her power of compulsory arbitration. 5. Prior to the
strike of 19 September 2003, a similar “Motion to Strike Out Notice of Strike”
was filed by the University. The NCMB
however did not resolve said Motion.
The calculated inaction paved the way for the Union strike of 19
September 2003. As it turns out, NCMB
Director Adorico Dadivas, as chronicled by the DOLE Sheriffs’ Report of 26
September 2003, was illegally assisting the USAEU-FFW and its legal counsel, a
former DOLE official, during the strike
to the point of directing the DOLE Sheriffs to disregard standard operating
procedure in their service of the Secretary of Labor’s assumption of
jurisdiction order. In any case, the
NCMB’s calculated silence led to disastrous results. The NCMB is therefore strongly encouraged to posthaste dismiss
the latest Notice of Strike filed by the terminated Union officers of USAEU-FFW
for lack of jurisdiction and spare further employee casualties. At the very least, the NCMB should advise
Union members to consult their own lawyer and seek a second opinion on the
risks of joining the strike being presently instigated by the terminated and
go-for-broke Union officers. 6. Assuming arguendo the NCMB has jurisdiction to
act on USAEU-FFW’s second Notice of Strike (which it does not), said Notice of
Strike is anchored on an issue already brought to compulsory arbitration. In other words, the central issue of the
legality of the strike of 19 September 2003 (from which flows the issues of
whether the University engaged in union busting and whether the Court of
Appeals erred in declaring the Union officers to have lost their employment
status and may be served notices of termination) was the subject of compulsory
arbitration before the Secretary of Labor in OS-AJ-0032–2003 whose
decision was appealed by the University to the Court of Appeals. The Court of
Appeals thereafter reversed the Secretary of Labor’s declaration that the Union
strike was legal. The Union, in its
Motion for Partial Reconsideration, is presently asking the Honorable Court of
Appeals to reverse its declaration that its (the Union’s) strike was
illegal. The second Notice of Strike
being anchored on an issue already brought to compulsory arbitration, under
Section 3, Rule V of the NCMB Manual of Procedure for Conciliation and
Preventive Mediation Cases, the NCMB should consider the Union’s second notice
of strike as not duly filed. 7. Due to the urgency of the situation, an advance fax copy
of the foregoing Motion shall be served on the Union, its counsel and
thereafter, filed with the NCMB, to be followed by the original copies. PRAYER WHEREFORE, respondent University of San Agustin
respectfully prays that the second (2nd) Notice of Strike dated 7
April 2005 filed by the University of San Agustin Employees Union-FFW be
dismissed and/or stricken out for lack of jurisdiction in light of Article 264
of the Labor Code and the pendency of CA-G.R. SP No. 85317 before the Court of Appeals. Respondent prays for other and further relief as may be
just and equitable in the premises. Manila for Iloilo City, 8 April 2005.” We
live in a society ruled by law and not of men. The Union officers forgot this
adage when they passed their Board Resolution of September 16, 2003 authorizing
only its President to receive an assumption of jurisdiction order from the
Secretary of Labor -- a scheme once employed by another FFW-affiliated union
only to be rejected by the Supreme
Court -- and thereafter relied on the
illegal intervention of NCMB Director Adorico D. Dadivas to ensure that the assumption order will
only be deemed served by the DOLE Sheriffs when the Union President receives
the same. Fortunately, the DOLE
Sheriffs chose to be governed by the law and not by the person of the NCMB
Director. The Court of Appeals clearly
observed the discredited scheme and corrupt intervention and accordingly
declared the Union strike illegal. The
University invites the Union members who are now faced with a second Notice of
Strike filed by terminated and desperate Union leaders who have nothing to
lose, to consider the following: (a) Did the University just all of a sudden
terminate the Union officers? (b) In
ruling that the University may, at its option, serve notices of termination to
the Union officers, is the Court of Appeals a promoter of union busting? (c) Is
the University of San Agustin truly engaging in union busting when it is merely
following the Decision of the Court of Appeals? (d) The Union officers are not
without legal remedies before the Court of Appeals which has jurisdiction over
the labor dispute and all the parties to said dispute, why is it that they
insist on seeking relief before the NCMB?
In the end, the decision to join the second strike will be a personal
one. The University hopes that a Union
member’s decision to join or not to join the second strike will be the result
of objective and rational reflection
and not fueled by unthinking passion and cries for sympathy. The stakes are just too great for all of us.
In the unfortunate event that passion overrides reason and the membership of
USAEU-FFW votes to strike, we trust that the procedure and interim governing
strikes grounded on “union busting” provided by law will still be
respected. Let us all be governed by
the rule of law and not of men. Let the
Court of Appeals – and even the Supreme Court – be the final judge of whether
the University of San Agustin engaged in union busting when it served notices
of termination on the Union officers. THE
UNIVERSITY OF SAN AGUSTIN Iloilo
City, Philippines April
8, 2005 (For inquiries or clarification, kindly
contact Atty. Sabino Padilla III, legal counsel of the University of San
Agustin, at telephone number (02) 241-0096.
Thank you.) |
