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[G.R. No. 128632.October 27, 1999]

MSF TIRE AND RUBBER, INC. vs. COURT OF APPEALS

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 27, 1999.

G.R. No. 128632(MSF Tire and Rubber, Inc. vs. Court of Appeals, et al.)

This is a motion for reconsideration filed by petitioner MSF Tire and Rubber, Inc. of the decision dated August 5, 1999, holding (1) that the non-disclosure of respondent Philtread Tire Workers' Union (Union) of the pendency of NCMB-NCR-NS-05-167-96 in its certification of non-forum shopping was not fatal to its petition for certiorari before the Court of Appeals and (2) that petitioner was not an "innocent bystander" vis-a-vis Philtread Tire and Rubber Corporation (Philtread) and respondent Union, having "close links" to Philtread, and as such, was not entitled to a writ of preliminary injunction to enjoin respondent Union from conducting a picket at its (petitioner's) plant.

In holding that the Court of Appeals did not commit any reversible error in not dismissing the petition for respondent Union's failure to disclose the pendency of NCMB-NCR-NS-05-167-96 in its certification of non-forum shopping, the Court held:

Petitioner was a party to the proceedings before the National Conciliation and Mediation Board In which an order, dated September 8, 1994, was issued by then Secretary of Labor Nieves Confesor, enjoining any strike or lock-out by the parties. It was petitioner which initiated the action for injunction before the trial court. Aggrieved by the injunctive order issued by the lower court, the Union was forced to file a petition for review before the Court of Appeals. We cannot understand why petitioner should complain that no mention of the pendency of the arbitration case before the labor department was made in the certificate of non-forum shopping attached to the Union's petition in the Court of Appeals. The petition of the Union in the Court of Appeals was provoked by petitioner's action in seeking injunction from the trial court when it could have obtained the same relief from the Secretary of Labor.

Indeed, by focusing on the Union's certification before the appellate court, petitioner failed to notice that its own certification before the tower court suffered from the same omission for which it faults the Union. Although the body of petitioner's complaint mentions NCMB-NCR-NS-05-167-96, its own certification is silent concerning this matter. It is not in keeping with the requirements of fairness for petitioner to demand strict application of the prohibition against forum-shopping, when it, too, is guilty of the same omission.

Petitioner claims that this Court confused one labor case with another. Petitioner claims that the order, dated September 8, 1994, of the Secretary of Labor and Employment, enjoining any strike or lock-out by the parties, was actually issued in NCMB-NCR-NS-05-185-94 and NCMB-NCR-LN-05-013-94, which involved a notice of strike filed by respondent Union against Philtread and a notice of lock-out filed by the latter against respondent Union, respectively. Petitioner claims that as it is not a party in said cases, it did riot mention the same in its certification of non-forum shopping in its action for injunction before the trial court. For the same reason it could not have obtained injunctive relief therein.

As for NCMB-NCR-NS-05-167-96 involving a notice of strike filed by respondent Union against "Philtread Tire and Rubber Corporation and/or MSF Tire & Rubber, Inc. [herein petitioner]," petitioner contends that it could also not have mentioned the same in its certification against non-forum shopping because its action for injunction was filed in 1995, or earlier than NCMB-NCR-NS-05-167-96 which was filed by respondent Union only in 1996.

The fact remains, however, that it was petitioner which provoked the filing by respondent Union of a petition for certiorari in the Court of Appeals when it initiated the action for injunction before the trial court Respondent Union was only forced to file such petition because the trial court issued an injunction. Thus respondent Union could not be held guilty of forum shopping despite the pendency of NCMB-NCR-NS-05-167-96. No other remedy was available to it as it could not have asked the National Conciliation and Mediation Board (NCMB) to set aside the writ of preliminary injunction of the trial court.

Besides, as pointed out by respondent Union in its comment (Comment, p. 2; Rollo p. 111), the issue in NCMB-NCR-NS-05-167-96 concerned an unfair labor practice, while the subject of its petition for certiorari was the propriety of the writ of preliminary injunction issued by the trial court.

����������� As to whether petitioner should be considered an "innocent bystander" entitled to injunctive relief, the motion for reconsideration merely repeats the arguments in the petition which was already passed upon in the Court's decision.

WHEREFORE, petitioner's motion for reconsideration is DENIED with FINALITY for lack of merit.

Petitioner's manifestation, dated September 2, 1999, submitting its explanation for its failure to file and serve a copy of its motion for reconsideration personally and the respondent Union's opposition to said motion are NOTED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Acting Div. Clerk of Court

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