LEYTE GEOTHERMAL POWER PROGRESSIVE EMPLOYEES UNION - ALU - TUCP, 

Petitioner, vs.
PHILIPPINE NATIONAL OIL COMPANY - ENERGY DEVELOPMENT CORPORATION, Respondent.
G.R. No. 170351               March 30, 2011

Facts:

Philippine National Oil Corporation-Energy Development Corporation [PNOC-EDC] is a government-

owned and controlled corporation engaged in exploration, development, utilization, generation and
distribution of energy resources like geothermal energy. Among respondent’s geothermal projects is the
Leyte Geothermal Power Project located at the Greater Tongonan Geothermal Reservation in Leyte.
Respondent hired and employed hundreds of employees on a contractual basis, whereby, their
employment was only good up to the completion or termination of the project and would automatically
expire upon the completion of such project. Majority of the employees hired in its Leyte Geothermal
Power Projects had become members of the Philippine National Oil Company - Energy Development
Corporation.

When the project was about to be completed, the PNOC proceeded to serve Notices of Termination of
Employment upon the employees who are members of the petitioner. The petitioner filed a Notice of
Strike with DOLE against the respondent on the ground of purported commission by the latter of unfair
labor practice for "refusal to bargain collectively, union busting and mass termination." On the same
day, the petitioner declared a strike and staged such strike. The negotiation to settle the dispute
amicably, failed.

Respondent PNOC filed a Complaint for Strike Illegality, Declaration of Loss of Employment and Damages
at the NLRC-RAB and filed a Petition for Cancellation of Petitioner’s Certificate of Registration with DOLE.
The NLRC rendered a decision in favor of respondent. Petitioner Union filed a petition before the CA,
alleging grave abuse of discretion in the decision of the NLRC to which the CA dismissed the petition and
affirm the decision of NLRC.

Issue:

1. Whether the officers and members of petitioner Union are project employees of respondent; and

2. Whether the officers and members of petitioner Union engaged in an illegal strike.

Ruling:

First issue: The distinction between a regular and a project employment is provided in Article 280,
paragraph 1, of the Labor Code: ART. Regular and Casual Employment.— The provisions of written
agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to perform activities
which are usually necessary or desirable in the usual business or trade of the employer, except where
the employment has been fixed for a specific project or undertaking the completion or termination of
which has been determined at the time of the engagement of the employee or where the work or
service to be performed is seasonal in nature and the employment is for the duration of the season. An
employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided,
That, any employee who has rendered at least one year of service, whether such service is continuous or
broken, shall be considered a regular employee with respect to the activity in which he is employed and
his employment shall continue while such actually exists.

n the case of ALU-TUCP v. NLRC, the litmus test to determine whether an individual is a project
employee lies in setting a fixed period of employment involving a specific undertaking which completion
or termination has been determined at the time of the particular employee’s engagement. In this case,
the officers and the members of petitioner Union were specifically hired as project employees for
respondent’s Leyte Geothermal Power Project located at the Greater Tongonan Geothermal Reservation
in Leyte. Consequently, upon the completion of the project or substantial phase thereof, the officers and
the members of petitioner Union could be validly terminated.

Petitioner Union’s members’ employment for more than a year does equate to their regular
employment with respondent. Mercado, Sr. v. NLRC illuminates: The first paragraph of Article 280 of the
Labor Code answers the question of who are regular employees. It states that, regardless of any written
or oral agreement to the contrary, an employee is deemed regular where he is engaged in necessary or
desirable activities in the usual business or trade of the employer, except for project employees.

Second issue:

Article 263 of the Labor Code enumerates the requisites for holding a strike:

Art. 263. Strikes, picketing, and lockouts. – (a) x x x.

x x x x.

(c) In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of
strike or the employer may file a notice of lockout with the Department at least 30 days before the
intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the
absence of a duly certified bargaining agent, the notice of strike may be filed by any legitimate labor
organization in behalf of its members. However, in case of dismissal from employment of union officers
duly elected in accordance with the union constitution and by-laws, which may constitute union busting,
where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the
union may take action immediately.

(d) The notice must be in accordance with such implementing rules and regulations as the Department
of Labor and Employment may promulgate.

(e) During the cooling-off period, it shall be the duty of the Department to exert all efforts at mediation
and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of
the requisite number of days from the mandatory filing of the notice, the labor union may strike or the
employer may declare a lockout.

(f) A decision to declare a strike must be approved by a majority of the total union membership in the
bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A
decision to declare a lockout must be approved by a majority of the board of directors of the
corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting
called for that purpose. The decision shall be valid for the duration of the dispute based on substantially
the same grounds considered when the strike or lockout vote was taken. The Department may, at its
own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In
every case, the union or the employer shall furnish the Department the results of the voting at least
seven days before the intended strike or lockout, subject to the cooling-off period herein provided.

The failure to comply with the mandatory requisites for the conduct of strike is both admitted and
clearly shown on record. Hence, it is undisputed that no strike vote was conducted; likewise, the
cooling-off period was not observed and that the 7-day strike ban after the submission of the strike vote
was not complied with since there was no strike vote taken. In fine, petitioner Union’s bare contention
that it did not hold a strike cannot trump the factual findings of the NLRC that petitioner Union indeed
struck against respondent. In fact, and more importantly, petitioner Union failed to comply with the
requirements set by law prior to holding a strike.

The petition is denied.