Supreme Court: Dusit noon, FASAP ngayon?

IT COULD well be the most fitting wordplay from the title of an award-winning Filipino film in 1976 – “Ganito Kami Noon, Paano Kayo Ngayon?” – to describe the plights of the workers, first in the Dusit Hotel and then the flight and cabin crews of Philippine Airlines, following the rulings of the Supreme Court on their respective cases, which were both widely assailed as a “mockery of justice.”

On Nov. 11, 2008 Associate Justice Presbitero Velasco Jr. penned a decision that claimed that when the Dusit male workers went to work with shaven heads as a form of protest to the management’s blatant dilatory tactics in the collective bargaining talks, they were guilty of staging an “illegal strike.”

And more recently, in a resolution last Oct. 4, the Supreme Court, in an unprecedented move prompted by a mere letter from a company lawyer, has recalled its “final” decision ordering the reinstatement of 1,400 PAL flight attendants because allegedly a wrong division issued the ruling.

No finality for a ‘magic letter’

The Supreme Court en banc will now handle the case effectively revoking the earlier “victory” of the PAL workers belonging to the Flight Attendants and Stewards Association of the Philippines (FASAP) and opening the grim possibility of a complete reversal of the previous court rulings favorable to them.

This extraordinary move by the high court was triggered by a simple “letter” – which is not even a formal legal appeal – by Atty. Estelito Mendoza, PAL counsel and a famous (or infamous) lawyer whose clients, aside from Lucio Tan, include the late dictator Ferdinand Marcos, Danding Cojuangco, and other super rich and powerful in the country.

Mendoza, also a solicitor general and justice minister during the Marcos regime, complained in his letter that the FASAP’s case should have been handled by the tribunal’s Special Third Division and not the Second Division, which thrice upheld that PAL’s mass retrenchment in 1998 was illegal and the dismissed workers were “entitled to full back wages and reinstatement.”

The said judgment was first issued in July 2008, and reaffirmed in Oct. 2009 when the court junked the motion for reconsideration of management, and eventually last Sept. 7 when it resolved “to deny with finality” PAL’s second appeal, and declared that “no further pleadings shall be entertained.”

Remarkably, it also asserted that the “case has dragged on for so long and we are now more than duty-bound to finally put an end to the illegality that took place; otherwise, the illegally retrenched employees can rightfully claim that this court has denied them justice.”

But by a stroke of Mendoza’s “magic letter” and by flaunting a devious “technicality” issue, all the three well deliberated verdicts of the court suddenly and mysteriously became naught, the Alliance of Progressive Labor (APL) said.

Busting FASAP, ALPAP, PALEA

For this, the APL and one of its affiliates, the National Union of Workers in Hotel, Restaurant and Allied Industries (NUWHRAIN), as well as a growing number of other labor organizations, joined hands with FASAP in calling for the Supreme Court to junk its Oct. 4 resolution and to immediately implement instead the earlier rulings on the FASAP case.

The case began when PAL terminated in 1998 over 1,500 flight crews and pilots using as a pretext the then Asian financial crisis. Organized labor said that it was actually a ploy for Lucio Tan to reemploy them either as “new hires” or contractuals, who have lower wages than regular employees, and to destroy their unions, the FASAP and the Airline Pilots Association of the Philippines (ALPAP), the PAL pilots’ union.

In the same year and with similar corporate and ulterior objectives, PAL forced the ground crew union, the PAL Employees Association (PALEA), through coercive and co-optation tactics, to accept an unparalleled 10-year CBA (collective bargaining agreement) moratorium which was later further extended for two more years (1998-2010), the APL said.

The APL said that the current massive “outsourcing” program facing PALEA members is nothing but a continuation of the all-out union-busting and contractualization plans of Lucio Tan and his associates.

Double standard of justice

Recalling its similarly bitter experience from the supposedly “court of last resort,” the NUWHRAIN-Dusit Hotel Nikko Chapter (NDHNC) said that the “highly irregular” views of the Supreme Court, particularly on workers and trade unions, would validate the statement of Bob Anduiza, FASAP’s president, that “in our country, workers do not stand a chance against rich and influential businessmen.”

In the NDHNC case, the formal appeals of the union as well as the petitions from various labor groups for the Supreme Court to review en banc and ultimately reverse the decision of the then Second Division – that affirmed the mass dismissal of union officers and members, and declared their “illegal strike” offense – were not only rejected but also ordered expunged from court records for purportedly being “a prohibited pleading.”

While in the FASAP case, a simple “complaint letter” of Mendoza citing a convoluted “technicality” concern has astonishingly forced the Supreme Court to hastily repeal the thrice repeated “final” decision of its then Second Division, the NDHNC commented.

Ironically, the NDHNC added, the Second Division’s excuse of the Dusit union’s motion for recommendation as a “prohibited pleading” (thus the MR’s junking) was actually a lame attempt to use “technicality” to avoid a review of the Velasco ruling.

This double standard of justice should not however frustrate the trade unionists to exert more efforts of organizing more workers and to attempt to unify as many as possible sections of the organized labor, the APL clarified.

‘Shaved heads are illegal strike’

On January 18, 2002 the Dusit Hotel prevented its workers from reporting for work – after many male staff cropped their hairs in protest of management’s dilatory tactics in the collective bargaining negotiations (which started as early as October 2000) – forcing them and most of their co-workers to instead hold a picket outside the hotel.

Dusit later terminated 90 of them, including 29 union officers that virtually decimated the union leadership, and suspended 136 other employees, among them were women and other males who did not even cut their hairs but were union members, which was clearly a union-busting act.

The sweeping moves by the Dusit Hotel were backed up by the 2008 Velasco ruling, which declared that when the workers “violated” the Dusit “grooming standards,” it caused disruptions in the hotel operations and thus tantamount to an “unprotected” mass action or not sanctioned by law, hence “should be considered as an illegal strike.”

Likewise, the Velasco ruling declared that when the employees went to work with shaven heads, there was “clearly a deliberate and concerted action to undermine the authority of and to embarrass” Dusit and “therefore, not a protected action” – again.

Described even by the country’s rival workers’ groups as “highly anomalous and absurd” and a “very dangerous precedent, and a threat to labor and trade union rights,” the Velasco ruling is “sadly and embarrassingly” now part of the Philippine jurisprudence as G.R. 163942 and G.R. 166295, the APL said.

Other labor groups branded the Velasco ruling as a form of “judicial legislation,” when the high court apparently assumed or “usurped” the law-making powers of the government’s legislative branch by declaring a new meaning of “strike” or an illegal strike at that.

Moreover, a very glaring irregularity happened in the course of the Dusit union’s appeals to review en banc the Velasco ruling, Rey Rasing, NDHNC president, revealed.

Former Associate Justice Ruben Reyes, who stepped down as a high tribunal justice on Jan. 2, 2009 or a day before reaching the mandatory retirement age of 70, was reportedly still able to participate more than a month later (as allegedly witnessed by the Clerk of Court) in the drafting and signing of the Feb. 9 resolution of the court’s Second Division denying the NDHNC’s MR or motion for reconsideration.

Although the Division clerk later attested that Reyes did not participate in the said MR’s drafting, but still his replacement had not yet been designated as of February 9, 2009, Rasing added.

Rasing explained that the Constitution requires five members to constitute a Division, and since there were only four members at that time, the Second Division could not have been validly constituted as of Feb. 9, 2009 making their resolution on that date null and void.

After being repeatedly spurned by the Supreme Court, the Dusit union and several labor organizations in the country and abroad elevated the Dusit case in the Geneva-based Committee on Freedom of Association of the International Labor Organization (ILO).

The ILO body released its “Findings and Recommendations” in November last year that effectively rebuked the Supreme Court’s 2008 ruling on the Dusit case. The court and the government, however, have remained mum on this matter.

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