Concerted Actions

- Concerted actions are acts done by a group of employees, with the end of pressing a demand, whether or not related to a dispute.

Ex. An open letter is written by disgruntled employees. They accuse the bank President of immorality and nepotism since he would promote shady characters, one of whom he was having an affair with; he allowed nepotism in employment, promotion and educational benefits; he would not take action against relatives involved in embezzlement; he would allow unauthorized withdrawals. The signatories were all dismissed.

Was that ULP? The Bank President claims the letter was not a union action, but an individual act. So the dismissals had nothing to do with union activities.

But the SC said, that is still protected. They were engaged in a concerted activity, in the exercise of their right to self-organization. This includes activities for mutual aid and protection. Joining protests, even by a small group of employees, if in furtherance of their activities as such, is a concerted activity which is protected.

The issues complained of are within the sphere of collective bargaining. The reference to immorality supported the charge that the bank President failed to provide wholesome work conditions.

What the bank should have done was to refer it to the grievance procedure. Since they did not, that is ULP. Collective bargaining is a continuous process imposing the mutual obligation, during the term of the CBA, to meet and convene promptly and expeditiously to adjust grievances or questions. Good faith bargaining requires you have an open mind and a sincere desire to negotiate over grievances (Republic Savings Bank v. CIR)

- But suppose a number of workers wrote letter - complaints on their own, that is not within the sphere of the right of self-organization. That is not a collective or concerted action.

- But don't think that this justifies any open letter in St. Mary's College v. NLRC, a 6-page manifesto was circulated in the college. It said the school forced them to sign affidavits waiving some benefits; the school was a prison without walls; there was no freedom, justice and peace in the school. It demanded that the directors and principal be replaced.

Because of this, 6 faculty members were dismissed. The SC said that is gross misconduct. You ridiculed the directress and principal. You disrupted the good order in the school. You did not have the support of a substantial no. of their colleagues. We cannot believe you were in the process of organizing a union when you were dismissed. You did not even reach 30% of the rank & file. You cannot therefore claim ULP. (Note that, in this particluar case, there was lack of employee support for the letter. Though I personally feel the Republic Savings Bank ruling should apply.)

- Another example, you are all dismissed from a co. which later closes down. Can you picket the co. premises which has been sold to another corp. and protest the illegality of the closure? YES. Even if there is no employer-employee relationship. That is part of freedom of speech.

- There are other types of peaceful concerted actions such as a boycott - concerted refusal to patronize and employer's goods or services with intent to persuade others to like refusal noise barrage.

- As the various peaceful concerted actions go more and more into the realm of work stoppage, more and more, the laws on strike are applied to them.

For example, if you will remember the case of IBM vs. Ferrer-Calleja, the workers boycotted OT. The SC said that was illegal as it was not the way to resolve a wage distortion. Without categorically stating that was a slowdown - a willful reduction in rate of work by concerted action of employees for the purpose of restricting the output of the employer in relation to a labor dispute, the SC said a slowdown is illegal - the workers continue to work and accept their wages yet selecting the work they will perform.

In another case, the SC said that work slowdowns amount to an illegal strike and may be subject of an assumption of jurisdiction order. Every time the company would not accede to the union demands, production would decline. But when the demands of the union for restoration of overtime work were allowed, production would improve. That is strike on an installment basis - apparently a pattern of manipulating production depending on whether or not the union’s demands were met. (Philtread Workers’ Union vs. Secretary Nieves Confesor, Mar. 12, 1997)

STRIKE: What is a strike?

It is a 1. temporary

2. stoppage of work3. by concerted action of employees4. as the result of a labor or industrial dispute

- For example, pilots of PAL decide to go on strike. Management is about to secure an assumption of jurisdiction. So the pilots are very angry. They say, "OK, we will not go on strike, we will all file applications for protest retirement, or protest resignation." And that is what they did. The retirement/resignation was enjoined. But they nevertheless filed their resignation/retirement.

Two of these now ask for readmission. They were accepted but lost their seniority. They say, “We should not lose our seniority.”

But the SC said that was not a strike. Employees who go on strike do not quit their employment. Since they did not assume the status of strikers. The protest retirement was not a concerted activity protected by law. A strike means only a "temporary stoppage of work”! This was not temporary but a permanent cut-off of employment. When they did not follow the injunction order, this shows their bad faith. A legitimate concerted activity cannot be used to circumvent judicial orders.

- Then they say, "It was just a sham. We had no genuine desire to terminate our employment."

SC said, that exposed you to the risk that PAL would act on your sham retirement seriously (Enriquez v. Zamora)

In short, it must be a TEMPORARY stoppage of work.

- Another example, the workers in your plant ask if they can go and picket in front of Malacañang to protest police abuses. They will be absent one morning for this purpose. You say, "NO". But they go and picket anyway. Is that a strike?

NO. It is not a result of a labor or industrial dispute. It is an action directed against the government. You cannot invoke business/economic reasons to stop the picket. In the hierarchy of rights, freedom of expression, of which this is an example, are superior to property rights.

In short, a strike is the result of a labor or industrial dispute: One between the employer and employees.

- For example, a large federation of workers wants to engage in a general strike for one-day to protest the devaluation. If they go on a work-stoppage, will that be a strike (as contemplated by the Labor Code)?

NO. That is not a labor dispute. It is a grievance against the government in the PBMOE mold.

- Suppose they go on a general strike to call for a wage increase?

That may be considered a strike as, ultimately, it will demand that the employer increase his wage benefits.

- Another example, there is a labor dispute - management is reducing the bonus it used to give the supervisors. So during their lunch break, the supervisions all picket outside the company premises. Is that a strike?

NO. It is not a stoppage of work. There is no work to speak of during lunch break.

- In like manner, if the company lays-off a number of employees and these laid-off employees picket in front of the company premises to protest the terminations, that is not a strike. How can they be stopping work when they have no work to begin with?

- Suppose, you all work in a small hotel. In the food and beverage department, you have a master chef. He cooks all the food and directs the work of everyone else in the restaurant. There are about 6 of you in that department. One day, the master chef is so disgusted since the employer will not give him a raise. So he walks out of work. Since everyone else does not know what to do, they hang around doing nothing. Is that a strike?

NO. The stoppage of work is not by a concerted action of the employees. It was only one person who instigated the work stoppage.

- There are different types of strikes. You have:

a. General - over an entire area or industry.Local - over a single enterprise or industry.Particular - over a department or branch of the establishment

b. Primary - the employees waging the strike are directly interested in the grievances/bargaining demands v. the employer.Secondary - the strike is directed against a 3rd party with whom they have a grievance.

(For example: You are security guards of Jaguar Security Agency. You are assigned to Ateneo Law School. Ateneo treats you poorly and does not give the respect you think you deserve as security guards. So, you all go on strike. It is secondary because the object of your grievances is not the agency, which is your employer, but Ateneo here would be a third party).

Sympathetic strike - aimed at aiding employees in a different enterprise or bargaining unit.

[For example: The company has a supervisory and a rank and file union. The supervisors discover that the rank & file union is planning on conducting a strike. So they also go on strike to coincide with that. They have no grievances of their own but decide to go on strike to support the members of another.]

Economic - one which is conducted to compel the employer to grant benefits he is not required to grant under law or contract (in short, a bargaining strike)ULP - One due to ULP.Political - Undertaken to obtain concessions not from the employer, but from the government (local or national)

4) The DOLE, int its primer on strikes, also defines the following:

a. Legal Strike - one called for a valid purpose and conducted through means allowed by law.Illegal Strike - the purpose is not recognized by law, or the means is not sanctioned by lawSlow-down strike - one staged without the workers quitting their work but merely slackening or reducing their normal work output.

In this league, we also have the following:

Sit-down Strike - one where the workers stop working but do not leave their place of workQuickie Strike - A brief, unsustained stoppage of work for a day or lessWild-cat Strike - one declared and staged without majority approval of the recognized bargaining agent or without authorization of the union (it is staged perhaps, by a faction or group of union members)

(For Example: Your CBA provides for yearly wage increases. The employer refuses to grant these. So you go on strike. Is that an economic strike? NO. It is a ULP strike. You are not asking that the employer do something it is not, under law or contract, obliged to perform. It is obliged to grant that - under the CBA).

- Note that government employees cannot go on strike under the Civil Service Decree. This is because of a Memoruandum Order of the Civil Service Commission (No. 6) and is implied by E.O 180 which says that their rights are subject to rules promulgated by the CSC.

- Then we have the requirements of a valid strike. We will divide this into: Procedural/Conditions Precedent

Conduct of StrikeRequirements/Limitations of Law

PROCEDURAL REQUIREMENT (All of these have their own purposes)

1. Valid grounds

a. Deadlock in collective bargainingULP - you include here illegal dismissal of union officers duly elected in accordance with the CBL which constitutes union busting.Note the elements -

There is an illegal dismissal - If the dismissal is patently lawful or the union acknowledged the necessity for a retrenchment but only wanted to discuss the separation benefits, that would be in bad faith.The dismissal is of union officers - Dismissal of mere members would not be covered by this provision, therefore.The officers dismissed were duly elected - This precludes sudden appointment of dismissed members as officers. It also ensures that the dismissed member has a position of rank in the company.It constitutes union-busting - There must be anti-union intent. Mere illegality is not sufficient.

If all these are met, then, you need not observe the cooling-off period. It may be an ordinary case of ULP.

What if you conduct a strike due to ULP and then later, it is shown that there really was no ULP - that you were mistaken - is your strike automatically illegal?

NO. What is sufficient is that, in good faith, you believed there was ULP. "Good faith" can be determined based on the circumstances. For example, the company retrenches some union members a few weeks before Collective Bargaining negotiations are to start. The union investigates and learns that there is another company involved in the same business being operated and run by the General Manager. The union doubts the claim of retrenchment since they noticed a large number of job orders done the past year.

That would justify a good faith belief the company is dismissing union members as a threat and means to weaken the union before the negotiations start. That is restraint in exercise of the right to self-organization.

Even if it is later on shown that the GM was only conducting a sideline without the company's knowledge and that the job orders were for a customer who never paid (he went bankrupt), the good faith belief is justification enough. (Philippine Metal Foundries v. CIR)

- What is an example of “bad faith” belief? One of the union officers is dismissed for refusal to comply with a transfer order. But prior to his dismissal, the SC found that there was sufficient time to have the transfer issue subjected to grievance. The union said that it would have only been an exercise in futility. The SC said, that’s not a good reason to disregard that procedure. The wrong of the company cannot be remedied by another wrong. There was thus an absence of good faith or honest belief that the company was committing ULP. (J. Vitug, Panay Electirc Co. vs. NLRC, Oct. 4, 1995)

- Suppose during negotiations, the company just keeps delaying, saying, let's wait for the company President to return from his vacation abroad". You wait 3 months, the answer is the same. So the union gets impatient and declares a deadlock. WRONG! That's not deadlock. Deadlock means there is an impasse which supposes reasonable effort at good faith bargaining. But, despite noble intentions, you don't reach an agreement. Where there is no reasonable effort as good faith bargaining, that's ULP (Divine Word University v. Sec. of Labor)

You cannot declare a strike on grounds of inter or intra-union disputes. (For example, you are negotiating with management. All of a sudden, there is a split inside your union. Now there are 2 groups claiming the right to bargain. One group demands that the employer negotiate with them. They go on strike when it does not. That is a strike due to what is essentially an intra-union dispute.)

Substantial and not Trivial Grounds

The strike must be declared on substantial grounds. If you go on strike due to rearrangement of office furniture, that is hardly substantial.

- For example, because employees wasted so much time making tsismis, entertaining visiting friends and personal phone calls, the management changed the seating arrangement in the underwriting department in this surety company. Four employees protested, claiming anti-union harassment and refused to move. The manager answered them and they started insulting him.

Because they refused to move, they were suspended. Eventually, they were dismissed because of insubordination.

The SC said that that change in seating arrangement was a valid exercise of management prerogative. It could hardly be ULP. “We are at a loss to see how rearranging furniture can justify a four-month long strike.”

This is an example of a trivial ground. (Reliance Surety & Insurance Company vs. NLRC, Jan. 25, 1991).

- Or, for example, you go on strike due to failure to pay holiday pay for one day.

- Or the company and union agree to continue the negotiations. The company is still going to answer the union's proposal and there was an agreement to maintain the status quo pending resolution of the PCE. Yet, the union declares a strike. The SC said that is trivial, unreasonable and unjust. The strike is therefore illegal (United Seamen's Union of the Philippines v Davao Shipowners Association, 20 SCRA 1226).

Other examples of invalid grounds:

- Strike to compel the company to remove a foreman who happens to be the officer of a rival union. The foreman had no power to dismiss at all. (Luzon Marine Department Union v Roldan)

- Wage distortion (IBM v NLRC)

3. Notice of Strike

Note that it must be in the form required by the IRR.

What must you state in the notice?

a. Names and addresses of employer and unionb. Nature of industryc. No. of union membersd. No. of workers in bargaining unit

Other relevant data which may facilitate settlement, such as the list of pending casesf. In case of deadlock - unresolved issues

written proposals proof of a conference to settle disputes

in case of ULP - as far as practicable, you state the acts complained of, an the efforts to resolve the dispute amicably

- In connection with this, we have what you call "preventive mediation cases." The DOLE defines this as potential labor disputes that are subject of formal and informal requests for conciliation and mediation assistance and sought by either or both parties or upon initiative of NCMB to avoid the occurrence of actual labor disputes. (NCMB Manual of Procedures for Conciliation and Preventive Mediation cases)

The SC held that you cannot therefore go on strike if the issue is subject to or converted to a preventive mediation case. The DOLE does not consider it a dispute. (Pal vs. Secretary of Labor)

4. Cooling-off period - deadlock - 30 days ULP - 15 days

dismissal of officers constituting union-busting - 0 days (the union can take immediate action)

- What must be done during this time?

The DOLE must exert efforts to settle it. They will call the parties to preventive mediation.

- In case the ground for a strike is dismissal of union officers constituting union-busting, must a notice of strike still be filed?

YES. Art. 264(a) says: No labor organization shall declare a strike without:first having bargained collectively; or having filed the notice of strike; or the necessary strike vote first having been obtained and reported to the DOLE.

5. Strike vote

- You need - a majority of union members voting in favor of the strike - by secret ballot - in meetings or referenda held for the purpose.

- For example, you have 100 members of the bargaining unit. Only 50 out of 80 union members vote in favor of a strike. Can the union go on strike?

YES. What you need is a majority vote of the union members, not the members of the bargaining unit. A strike is declared by the union, not the bargaining unit.

- Suppose they pass around a piece of paper. All in favor of the strike should sign on it. Is that a valid strike vote?

NO. It must be by secret balloting.

- Suppose you put out a box with a hole in it. You paste a sign - "Place strike vote here". Anytime during the day, a union member can cast his ballot. There is a union officer sitting beside the box to guard it. Valid?

YES. The law is in the plural: “meetings or referenda”. It is not required that it be accomplished in a single meeting.

6. Strike ban

This means that you cannot go on strike except after 7 days from furnishing the DOLE your results of the strike vote. (7 days after filing should lapse before you can go on strike).

Is a strike vote and strike ban necessary if the ground is illegal dismissal of union officers constituting union-busting?

(a) YES. Look at Art 263(f): "In every case, the union or the employer shall furnish the DOLE the results of the voting at least 7 days before the intended strike or lock-out, subject to the cooling-off period."

So that means, notwithstanding the urgency of the matter, the 7-day period for strike ban must still be observed. Note that the law never says the union, under those conditions, may go on strike at once. What it says is "the 15-day cooling-off period shall not apply and the union may take action immediately." Therefore it is only the cooling-off period to which it provides an exception. When you say the union may take action, that does not necessarily mean they can go on strike. It means they can begin the process leading to a strike. The constitution and the law still gives premium to voluntary modes of settling disputes, such as conciliation and mediation.

(b) However, take note of the NCMB Manual or Conciliation and Preventive Mediation. It says in case of illegal dismissal of union officers constituting union-busting, the 15-day strike vote shall not apply and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the regional branch of the Board. It is silent as to the 7-day waiting period. It therefore seems to imply that in these cases, you don't need the strike ban (The rationale being due to the urgency of the matter, it being a measure of self-preservation on the part of the union). (Rule IV, Sec. 5) The law, however, is clear in requiring a strike vote and seven-day waiting period in every case.

- Before we go further, must all of these requisites be met?

YES. They are mandatory in nature. The law says: the union may strike if the dispute remains unsettled until the lapse of the mandatory filing of the notice " (Art. 264(e)). Clearly, the union cannot go on strike before the period has lapsed.

What is the reason for making them mandatory?

NOTICE OF STRIKE AND COOLING-OFF PERIOD - This informs the DOLE of the dispute and provides an opportunity for mediation and conciliation. Thus, after filing of the notice, the DOLE is directed to exert all efforts at conciliation and mediation to effect a voluntary settlement.

REPORT OF STRIKE VOTE/STRIKE BAN - The report gives the assurance that a strike vote has been taken and, if it is false, majority of the members may still take action before it is too late.

Since we want to attain these objectives, the requisite periods must be mandatory. (National Federation of Sugar Workers v. Ovejera)

The strike ban is also there to give DOLE a chance to verify if the strike to be conducted has imprimatur of majority of the union members. (Lapanday Workers Union v. NLRC, Sept. 7, 1995)

- Can the strike ban and the cooling-off period run simultaneously?

YES. Nothing in the law prohibits it. The law does not require you to wait 37 days before declaring a strike on grounds of bargaining deadlock.

For example: You file your NOS on the ground of bargaining deadlock on April 1, 1996. The cooling-off period starts on April 1 and therefore expires on April 31, 1996. Suppose you conduct a strike vote within that 30-day period. You submit the results on April 10, 1996. The strike ban therefore ends on April 17, 1996. The question is can you go on a valid strike on April 31?

YES. Both periods have been met.

[- Now if you will look at the DOLE’s primer on strikes and lockouts, it will tell you something else. They say you must tack on the cooling-off period to the strike ban. So you wait 37 days. I ask, what is the basis for that? Without having to tack on the 2 periods, you have already complied with the purposes of the law.]

- Corollary to this, suppose you filed the NOS for deadlock on April 1. You conduct your strike vote and submit its results only on April 30. Can you go on strike on April 31?

NO. You have to let the 7 days lapse. So, you can go on strike on May 6.

- Suppose your NOS is based on 2 grounds - ULP and bargaining deadlock (You go on strike because of deadlock and because the company is dealing with your members individually). When does your cooling-off period end?

For the ground of ULP, after 15 days.For the ground of deadlock, after 30 days.

Meaning, assuming the strike vote is filed and the strike ban has lapsed, if that particular ground still exists, you can go on strike. But of course, if the ground has been resolved, then your strike will not be in good faith and your ground will thus not be strikeable.

7. The union going on strike must have the requisite personality and authority.

In short, it must be a legitimate labor organization. If the strike is economic (bargaining) in nature, it must also be the exclusive bargaining agent.If the strike is a ULP strike, it must also be the exclusive bargaining agent UNLESS there is no such agent

selected. In which case, t is sufficient that it be a legitimate labor organization.

- Suppose there is a CBA, and during the freedom period, a new union is formed and registered and it files a PCE. The PCE drags on for several months. But the employer likes the incumbent bargaining agent so much that it dismisses all the officer of the new union.

Can this new union go on strike? NOTE - there is an incumbent bargaining agent.

I would think it can go on a valid strike. The PCE precisely is questioning the status of the incumbent bargaining agent. Note Art 256 (par.2): "At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no PCE is filed." That is the condition for the maintenance of the incumbent’s authority as bargaining agent - no representation issue has begun. Meaning, corollary to this, where a PCE has been filed and the freedom period has expired, the employer is not bound to recognize the incumbent bargaining agent's majority status. - It is equivalent to there being no certified bargaining agent. The employer has no obligation to negotiate with the incumbent bargaining agent.

Likewise, the employer is no longer bound to negotiate with the incumbent bargaining agent.

8. There is no pending case involving the same grounds for the strike. (This is very often overlooked. You can find it in Art.264, par.2).

For example: Union A is newly-organized. The employer does not like it. So it dismisses its two top officers. Union A files a case for ULP/illegal dismissal before the labor arbiter. The case drags on for three weeks. Union A, dissatisfied with the lack of prompt relief, decides to declare a strike instead. Assuming it complied with all the requirements we mentioned earlier, is the strike valid?

NO. Because there was a pending case involving the same grounds. The law seeks to prevent forum-shopping. Once you've made a choice, stick to it.

- But suppose after two union officers are dismissed, Union A files a case for ULP/illegal dismissal. Then two more union officers are dismissed. It then goes on strike for ULP/illegal dismissal because of this. Is the strike illegal?

NO, that strike is not based on a ground in a pending case. It is for a second instance of ULP, obviously.

9. Exhaustion of pacific means

You have exerted efforts to settle amicably in the plant. If necessary, bring it without the grievance machinery. Try to settle it there first. If not settled, either bring it to VA or file an NOS. In Master Iron Labor Union v NLRC, the Supreme Court said the refusal of the employer to undergo the grievance procedure (on the issues of CBA violations) shows a lack of intent to abide by the terms of the CBA.

10. It is not in violation of a no-strike/no-lockout provision.However, the SC has noted that such a provision will apply only in the case of economic strikes. As we said, economic strikes are those where the union seeks to force wage or other concessions from the employer that he is not required, by law or contract, to grant. In short - bargaining strikes.

For example, during the term of the CBA of supervisory employees, the rank and file workers receive a bonus. The supervisory employees try to make management pay them a bonus as well. So they go on strike for that. The employer was not bound to pay that, there being no CBA or legal provision requiring them to do so. The union was therefore seeking to compel the employer to grant a benefit it was not bound to grant. (Panay Electric Co. v. NLRC, October 4, 1995, Master Iron Labor Union v NLRC).

So also, where the strike is due to violation of the CBA provisions granting service allowances to workers assigned outside the company, this is not an economic strike. They are simply asking for implementation of what the CBA provides. While the demand is for an economic benefit or entitlement, none of the grounds are economic (Master Iron Labor Union v NLRC; Panay Electric Co. vs. NLRC, Oct. 4, 1995).

- Why is it that it won't apply to ULP strikes? Because it is the employer's act of ULP which led the union to go on strike. (It's as if they committed the first violation).

- What is the effect if you violate any of these?

The strike may be declared illegal.

- What's the effect if the strike is declared illegal?

Only officers shall be subject to termination. A finding of the illegality of the strike should not automatically be followed by wholesale dismissal of strikers. We should distinguish between ordinary members, who do not fully understand what is strikable or not, and the officers, who led them to believe they could go on strike. The ordinary members were ill-advised and not aware of the dire consequences of their acts. (Progressive Workers Union v Aguas).

The officers, being aware of the law on strike, should be penalized, but not the ordinary members of the union who simply followed them and may have been misled.

An officer who knowingly participates may be deemed to have lost employment status, Gold City Integrated Port v NLRC, 245 SCRA 627).

- The law therefore states:

Any union officer who knowingly participates in an illegal strike may be declared to have lost his employment status. (But mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment even if a replacement has been hired during such lawful strike).

- CONDUCT OF STRIKE: Even if they comply with all those, the following must also be followed if they don't want the strike to be declared illegal:

1) No violence, coercion or intimidation

Ex. - The strikers stone the workers who want to continue working - this is an act of violence. - The strikers form a human barricade around cars of management personnel as they enter the company

premises and rock them back and forth - intimidation.

2) No obstruction of free ingress to or egress from the employer's premises for lawful purposes.

- The law says no obstruction of free ingress or egress. ("Ingress or egress" means entrance and exit.) The egress/ingress must be used for lawful purposes under this provision. What are unlawful purposes? The law does not attempt to make a definition of when it is lawful.

- Suppose, as a company vehicle enters, you stand at the sides shouting and saying "Mga buwisit kayong mga eskirol!!! Patay kayo kapag pumasok kayo! Gaganti rin kami! Hala kayo!" That is not obstruction of the ingress and egress.

But it is still illegal since it constitutes intimidation. But if you simply shout, "Welga kami! Makiisa kayo! Huwag kayong pumasok! Sige na! Please!" Then they turn back because they are ashamed to go in, that's all right. You can use all means of peaceful and friendly persuasion.

3) No obstruction of public thoroughfares.

- So if you place a tent to the side of the wall and, since the sidewalk is so narrow, extend it over to the middle of the street, you are obstructing a public thoroughfare.

- Also, if you ask for alms/support from passersby, holding out a box with a hole in the center and shake it and, to ensure that passing motorists pay attention to you, stand in the middle of the road and shake the box at them, that is also obstruction of public thoroughfares.

- For example, during a strike, the workers conduct a picket in front of the company premises. Then, he comes the Assistant Corporate Secretary. He tries to enter the company premises. A union officer then shouts to all strikers. "Close up". So they close up. So Garcia continues and tries to pass through. He grabs one of the placards. That starts a fight. He suffers bruises and lacerations.

In Insular Life Employees Association v Insular Life, the SC said, there is no violation committed. The police blotter said the strike was peaceful that day. The Asst. Corporate Secretary was obviously sent to create an incident so that the company could file criminal charges. (Why did he insist on entering the company premises when he company was then holding office elsewhere?)

Third, the picketers were not legally bound to yield and withdraw. They had every reason to defend their selves against an assault or unlawful aggression.

Heated altercations and occasional blows do not diminish the right to strike. Some disorder is usual in strikes. The incident was a necessary incident to strike and should not bar reinstatement. They were mere ordinary misdemeanors (Insular Life Assurance Company Employees Association v Insular Life).

- Likewise, where there was a strike, molotov bombs were thrown and exploded. Management personnel were hurt. The SC said, that in itself will not make the strike illegal. Violence will make a strike illegal ONLY IF:

1) It is pervasive and widespread; or2) Consistently and deliberately resorted to as a matter of policy.

The acts, however, are still illegal and there is thus individual liability for them (Shell Oil Workers Union v Shell Company).

- What about bad words? During the strike you might say: "Management Kuripot!" "Mga Ahas!" "Illegal Dismissal!" "Unfair to Labor !" "That's alright. You obviously can't expect them to be courteous and polite when they are angry. You can therefore insinuate.

That is covered by freedom of expression. They have the right to disseminate the facts and appeal for public sympathy. (PCI Bank v PhilNabank Employees Ass., 105 SCRA 314)

- But that has limitations. You can use it to persuade, but not coerce. You cannot threaten - that is prohibited.

In such cases where the strike is not illegal, only the strikers committing illegal acts will be subject to termination. As the law puts it: "any worker who knowingly participates in the commission of illegal acts during a strike may be declared to have lost their employment status." (Art. 264. par 3)

SCOPE OF STRIKE

- What is the strike area?

1) The establishment of the employer struck against - you will include here the warehouse, depot, plant or office & sites & premises used as run-away shops.

2) The immediate vicinity actually used by picketing strikers in moving to and for before all points of entrance to and exit from the establishment.

3) Including the run-away shop.

Note that the DOLE primer on strikes says that the strike area ends just before the point of exit and entrance. Therefore, it concludes, the ingress and egress is not part of the strike area. (I have doubts on the validity of that. “Before” means “in front of”. So if you picket “in front of” the entrance, that is still legitimately within the strike area.)

- What is a run-away shop?

That is the place used by the employer in carrying out part of its operations. For example, during the strike, they rent an office space where the managerial personnel can report to everyday. That is a run-away shop and is part of the strike area. It is not prohibited to operate a run-away shop. It is just part of the strike area. Now if the picket is not within the strike area, it may be enjoined.

- Suppose, you have this cooking gas manufacturing company. The company partly sells its products through a retail store. When the workers go on strike, they picket not only in front of the factory, but they picket, as well in front of:

- the house of the company's general manager, and- the retail outlet

So those two ask for an injunction with the regular courts. However, the Supreme Court said, if we look at these two, they have some connection with the company:

- The General Manager (who was also wife of the owner of the retail outlet) has an interest in the controversy involved.

- The retail outlet, as distributor, also has an indirect interest in the dispute.

Then the Supreme Court went on to say: Picketing may be carried on not only against the manufacturer but against a non-union product sold by one who has a UNITY OF INTEREST with the manufacturer. In this case, there was such a unity of interest - the retail outlet was stocked with products of the company just before the strike in order to minimize its effects. As distributor, it was also engaged in the same business.

The Supreme Court even went so far as to say if the union cannot follow the product to the place where it is sold, it will be deprived of a fair and proper means of bringing its plea to the attention of the public. If the manufacturer, for example, pays substandard wages, it and its retailers can undersell the products. This will reduce workers' wages. The two are therefore involved in the issues of the workers. (Association of Labor Unions v Borromeo)

- You cannot therefore prohibit peaceful picketing solely on the ground that it is carried on by persons not employed therein. If there is a UNITY OF INTEREST, the union can conduct the picket there.

- But of course, if there is no such UNITY OF INTEREST, then you can enjoin the strike. For example, in Liwayway Publications v Permanent Concrete Workers Union, you had one big compound where Liwayway and Permanent Concrete (PCP) had their buildings (one was a bodega of Liwayway; the other was a plant of PCP). Liwayway had its own road, its own gate, and it was separated from PCP by a cement and barbed wire fence. In front of the two was a national road.

When the workers of PCP went on strike, they extended their strike to the premises in front of Liwayway. They barred trucks which wanted to load and unload newsprint from entering. They did not allow officers of Liwayway to enter. So Liwayway filed a petition for injunction with the Regular Courts. Note the regular courts will not grant this if there is a labor dispute involved between the parties. Was there a labor dispute?

EMBED CorelDRAW.Graphic.6 µ § NO. Liwayway had absolutely no relation to the union. It was just a sublessee in the compound. Liwayway published magazines. This had nothing to do with the manufacture of cement. if Liwayway wants to get newsprint from the bodega, how does that deal with the business of making cement?- Likewise, if the company is leasing a lot in the compound of the establishment struck against,

the strikers cannot prevent access to the workers going into such company.

- So when we get to peaceful picketing, it may be conducted against run-away shops and those who have unity of interest with the employer, but it cannot be conducted so as to prejudice Innocent Third Parties or Bystanders. These parties can get an injunction from the regular courts.

- In connection with this, we said that if there is a labor dispute, then you do not enjoin the picket by means of a petition before the regular courts. You can go to the NLRC.

For example, the union goes on strike due to union-busting and ULP. It stages a picket in front of a store. The company files a petition for injunction with the regular courts. The RTC grants it because the picketers were all dismissed. They are therefore no longer employees.

If they want to show that there is a labor dispute (and therefore not subject to a civil injunction), they must prove the dismissal and ULP.

Supreme Court said NO. To require proof of ULP would be to promote conflict of jurisdiction. It would make useless the labor code's provision on original and exclusive jurisdiction of the NLRC over labor cases. (Samahang Manggagawa sa Liberty Commercial v Pimentel).

- So also, where there is a strike declared by supposedly "agency"-hired employees against Magnolia, demanding that they be regularized and given CBA benefits and SMC seeks an injunction before the regular courts saying since they are employed by an agency, there is no employer-employee relationship. The Supreme Court said that is a labor dispute. A labor dispute is defined as including any controversy or matter (1) concerning terms and conditions of employment or the association or representation of workers in negotiating, fixing, maintaining, fixing or arranging terms and conditions of employment, (2) regardless of whether or not the disputants stand in the proximate relation of employer and employee.

It is therefore not essential that there be an employer-employee relation. What is needed is: does the dispute concern terms and conditions of employment, or representation of workers in fixing terms and conditions of employment? Since they were asking that they be regularized and given CBA benefits and included in the rank and file union, the Supreme Court said, yes that concerns terms and conditions of employment and representation of workers in fixing such terms and conditions. (SMC Employee Union v Bersamira, June 13, 1990)

INJUNCTIONS

- So if there is no labor dispute, secure an injunction with the regular courts through a civil case. If there is a labor dispute, go to NLRC. And, in line with these, one of the powers of the Commission is the power to enjoin or restrain unlawful acts which, if not restrained, may cause grave or irreparable damage or render ineffectual any decision. NLRC can issue TROs and injunctions.

- When may an injunction be issued?

No temporary or permanent injunction shall be issued except after hearing (with cross-examination) and a finding of fact that:

The unlawful acts have been threatened and will be committed and continued unless restrained;Substantial and irreparable damage to the petitioner's property will follow;As to each item of relief, greater injury will be inflicted upon complainant if relief is denied than will be inflicted on respondent if relief is granted;4. Complainant has no adequate remedy at law; 5. Public officers are unable or unwilling to furnish adequate protection.

Notice shall be served on all persons against whom relief is sought and to the Mayor/Governor of the province or city where the acts are supposed to be committed (because they have the duty to protect the complainant's property).

- When may a TRO be issued?

Complainant must allege that unless a TRO is issued without notice, substantial and irreparable damage to his property will be unavoidable.

- The TRO/Injunction will issue only if a bond is filed to pay the respondents for any losses they may suffer if it is erroneously issued plus attorney's fees and expenses.

When does this injunction become relevant? During strikes, particularly when there is obstruction to free ingress and egress. As a matter of fact, while the provision (Art. 218 e) does not explicitly say so, that is its main object. Note, than the provision repeatedly refers to danger to the complainant’s property. The requirements are:

the complainant must prove he stands to suffer substantial and irreparable damage to his propertythe public officials charged with duty to protect his property are unable or unwilling to furnish adequate protection. (Bisig ng Manggagawa sa Concrete Aggregates vs. NLRC)

A TRO will be issued only if it is shown that without it, substantial and irreparable injury to complainant's property will be unavoidable.

- Note that the requirements must be complied with strictly if the union fails to appear at one hearing (the first) and it seems there was no return of service to them, it is wrong for the NLRC to continue with the hearing on the injunction.

It would also be wrong to continue with such hearing where they never proved they sought the assistance of the police and the police did nothing.

NOTE that you must show the inability of public officers to furnish adequate protection. (Bisig ng Manggagawa sa Concrete Aggregates vs. NLRC)

- May a Labor Arbiter issue a writ of injunction?

The NLRC Rules of Procedure say not as an original case, but only ancillary to any matter pending before him for resolution.

- That is one incident of a strike, therefore, injunctions.

A temporary injunction was issued despite the fact that, after the TRO was issued, all the barricades were removed. The people were able to enter. The Supreme Court said - There was an adequate remedy. No need for injunction. Further, the police were always patrolling. How can you say they failed to provide adequate remedy? Next, no copy of the petition for injunction reached the union. so it did not attend the hearings. So, the company had a field day in presenting its evidence ex parte. The Supreme Court said a TRO ex parte is not prohibited. But we should be very careful and issue it only if there is extreme necessity - the unlawful acts are causing substantial and irreparable injury to company properties and the company has no adequate remedy at law. Experience shows that ex parte applications for TROs are based often on fabricated facts. That is why they should be more minutely examined by hearing officers.

Notably, the Supreme Court said, the union filed its own petition for injunction to enjoin use of military and police to escort scabs. No action was taken on this whereas the company got the TRO on the day of the filing of the petition. The disparate treatment is inexplicable considering the two are of equal importance. (Bisig ng Manggagawa sa Concrete Aggregates v NLRC, Sept. 16, 1993).

Other incidents:

- IMPROVED OFFER BALLOTING: This is what the DOLE shall do in an effort to settle the strike.

They must conduct it by means of secret ballot.

- The voting takes place only among union members, not the entire bargaining unit.

- When shall it be conducted?

On or before the 30th day of the strike.

- What happens if the union refuses to recognize it?They cannot prevent DOLE from conducting it. But they can always boycott it.

- Suppose they vote on it and the vote is in favor of acceptance. What next?

They shall draft an agreement based on what was accepted and, upon signing, all workers must immediately return to work and the employer must readmit them.

- Suppose, before the union declared a strike, the offer and proposal were as follows:

Union proposal:

Mgt. offer:

1st yearP15.00/dayP1.00

2nd yearP15.00/dayP2.00

3rd yearP15.00/dayP3.00

The union declared a deadlock at this point. After 29 days, neither side agreed to the other’s counter-proposal, may the DOLE conduct the referendum?

NO. It refers to an improved offer balloting. There being no improved offer, there is no justification for DOLE intervention.

- Suppose the employer said, "OK, I will increase it to this: 3-2-1." Shall the DOLE be justified in conducting the balloting?

YES. There is a change in the total cost since the bigger wage increase was placed at the start.

- What is the effect if the workers accept the improved offer but some don't return to work?

The same as if they defied a return-to-work order. The law is silent but the use of the mandatory terms "shall return to work" and reading this in conjunction with the purpose of the law - urgent need to promote industrial peace due to labor dispute - I would think the provision is mandatory in nature.

- NOTE that majority of the entire union membership must vote to accept it, not majority of the bargaining unit.

ASSUMPTION OF JURISDICTION: It shall be exercised when, in the opinion of the Secretary of Labor, there is:

a labor disputecausing or likely to causea strike or lockoutin an industry indispensable to the national interest.

- NOTE that the dispute must be causing or likely to cause a strike or lockout. If the parties are far from a deadlock and there is no sign of substantial disagreements, Assumption of Jurisdiction would therefore not be justified.

- It must be in an industry indispensable to the national interest. Prior to 1989, the standard was, the strike or lockout would be adverse to the national interest and they included here the list of some industries they deemed would fall under such criteria in the event of a strike or lockout. What are these?

- Utilities - Banking- Communication - Power Supply- Transportation - Export-Oriented firms

But they amended it, took away the list and restated the standard to be in an industry indispensable to the national interest. So it seems to have become stricter. It should now be more difficult to justify an assumption order.

What have been some of the criteria DOLE has used in determining whether or not a dispute is subject to Assumption of Jurisdiction.

- educational institution: this is a vital service- large number of employees: many would suffer loss of work- top dollar earning industry: a big hotel.

The tourist industry is one of our major income-generating industries.

In one case, the SC said the fact that Philtread supplies 22% of the nation’s tire products and employs 700 workers shows that it is imbued with national interest. If the company closes down, this will aggravate the unemployment problem. We will lose a major source of tires. (Philtread Workers’ Union vs. Confesor, Mar. 12, 1997)

In another case, you had a large mining corporation. The SC said: Marcopper operates the San Antonio Copper Project in Marinduque. The project is financed through long term loans granted by the Asian Development Bank and its co-financers, in the aggregate amount of US$40,000,000.00. It also supplies electrical power to the entire province of Marinduque. Also, any disruption in the operations of the Company will adversely affect its financial status and consequently its capacity to pay the loans acquired. Considering that the Company's project is basically financed by these loans, the continued operation of the project is threatened. Consequently, the means of livelihood of about 1,500 employees stands to suffer. Furthermore, the government will also be prejudiced by any work stoppage in the Company since it would mean loss of taxes and foreign exchange earnings from one of the major contributors of its sources of funds.

Any work stoppage will also adversely affect the whole province of Marinduque whose supply of electrical energy depends on the uninterrupted operations in the Company. (Marcopper Mining Corp. vs. Secretary Brillantes, Mar. 11, 1996)

Is the Secretary's determination subject to review? Of course. In GTE v Sanchez, you had here the Telephone Directory company. Sanchez assumed jurisdiction over a strike here. The Supreme Court said that is wrong. Then the standard was only "adverse to the national interest". The Supreme Court found that the Telephone Directory is hardly vital enough to justify an assumption order.

- Once a dispute has been subject to an assumption order, what happens to it?It shall be reduced to a litigation.

- Who shall hear it?

It can be heard by the Secretary of labor. Or he can certify it for compulsory arbitration to the NLRC. (Generally, deadlocked cases go to the Secretary of Labor, ULP case go to compulsory arbitration).

- What else is the effect of an assumption order?

If no strike has taken place, it is automatically enjoined. If a strike has begun, all striking workers must (shall) immediately return to work and the employer shall immediately resume operations and readmit them all under the same terms and conditions of employment before the strike.

In short, you revert to the status quo prior to the strike.

- Note that while the previous listing of industries subject to assumption has been removed, one particular line of business has been identified - hospitals. As to hospitals, clinics and similar medical institutions, the rule is, avoid a strike, to every extent possible.

- Is a strike prohibited in hospitals?

NO. But the parties and government should exert all efforts to substantially minimize, if not prevent, their adverse effects on life and health.

What does this mean? It means that while they can go on strike, the following measures must be undertaken:

1. The union and employer have the duty to provide and maintain an effective skeletal workforce of medical and other health personnel.

2. These personnel will have unhampered and unrestricted movement and services as are necessary to insure proper health and adequate protection of the life and health of its patients, especially emergency case.

3. The Secretary of Labor may immediately assume, within 24 hours from knowledge of the strike or lockout, jurisdiction over the same and certify it to NLRC for compulsory arbitration.

- Who asks for the assumption order?

Anyone. As a matter of fact, if you will read the case of PSBA v Noriel, Congressman Jabar of FFW wrote a letter asking for DOLE intervention when the strike erupted in PSBA. The DOLE can assume on its own.

In that case, the Supreme Court said, under the circumstances - there was an unresolved labor dispute, it affected 9,000 students, it adversely affects national interest - the Secretary of Labor did what he should have done - assume jurisdiction.

So what if there was a letter from FFW? The DOLE, under these circumstance, was justified in acting on its own. When he did so, he did not render any decision. He simply assumed jurisdiction. So you cannot blame him of partiality to FFW (dahil kay Jabar).

- When they issue an assumption order, sometimes it will read like this:

"All striking workers are hereby ordered to return to work and the employer to accept them under the same terms and conditions of employment prior to the strike. Both parties are ordered to refrain from any retaliatory acts.” PAL was issued one such order when there was strike conducted by its staff. PAL complained. It said, we have the prerogative to dismiss employees for illegal acts!

The Supreme Court said that is right. The strike is illegal. It was premature. It sought to modify an existing CBA before the freedom period. Since it is an illegal strike, the company has the right to take disciplinary action against the union officers and members guilty of illegal acts. All that the Secretary of Labor may do is enjoin the holding of a strike. he can't hold back the company's right of action vs. the strikers. (PAL v Secretary of Labor).

- What cases will be heard under an assumption order?

In PAL v Secretary of Labor, the strike was declared on grounds of deadlock and ULP. When the Secretary assumed jurisdiction, he decided the two issues of deadlock and strike and also declared that the strike was valid.

The Supreme Court said that is wrong. Not only was the strike invalid (premature bargaining despite existence of CBA) the legality of the strike was not among the issues submitted to him for decision.

- However, in International Pharmaceuticals vs. Secretary of Labor, a strike was declared. There were three other pending labor cases:

1) Petition for injunction against the picket2) ULP case filed by the Union3) Petition to declare strike illegal

The Supreme Court said the Secretary can assume jurisdiction over all three as well (aside from the issues involved in the disputes leading to a strike). The reason is, while Art 217 vests labor arbiters with exclusive, original jurisdiction over employer-employee cases, it also states "except as otherwise provided under this Code). It was intended that the Secretary and arbiter share jurisdiction in some cases, otherwise, he would not be able to effectively dispose of the primary dispute. he should be allowed to completely dispose of the dispute and all its incidents.

In Divine Word University v Secretary of Labor, it also said this should also avoid multiplicity of suits and confusion and delay.

- Are the two rulings (PAL/International Pharmaceuticals) contradictory?

NO. In St. Scholastica's College v Torres the Supreme Court said there is a difference. PAL v Sec. said the validity of strike issue could not be decided because it was never submitted for decision. So it was in excess of jurisdiction when the Secretary of Labor decided it.

But if it is involved in the labor dispute itself or submited before the DOLE agency for resolution, then the International Pharmaceuticals ruling applies. The assumption order will therefore include and extend to all questions and controversies arising from the dispute, including cases over which the Arbiter has exclusive jurisdiction.

So incidental issues in certified/assumed cases are one of the cases where the Secretary of Labor has concurrent jurisdiction with labor arbiter.

- So in St. Scholasticas', the school prayed the secretary uphold their dismissal of the striking workers. That request submitted the issue for decision. So, because of that, the Supreme Court said, you can also decide the issue of legality of the dismissal. That is in line with the intent to promote social justice and provide workers with immediate access to their rights and benefits.

- So that is the effect of an assumption order as to issues to be litigated/decided. What happens if the workers refuse comply with the return-to-work order?

The Supreme Court said they may be deemed to have lost their employment status. Assumption has the effect of automatically enjoining the strike or requiring the workers to return to work. One reason is to protect workers. Another reason is to prevent impairment of the national interest which is disrupted by the strike. Returning to work is an obligation of the worker. (Sarmiento v Tuico).

- The union said in that case, “But we filed a Motion for Reconsideration of the Assumption Order. So it was not yet final and we did not have to comply with it immediately.”

The Supreme Court said it does not matter if there was a Motion for Reconsideration. The nature of such an order is it is of utmost urgency - it should immediately be complied with because of danger to national interest.

- What if the union defies the return-to-work order but the strike is later on declared as legal?

That won't matter. The order is issued pending determination of the legality or illegality of the strike. It cannot be said it may be enforced only if the strike is illegal. Otherwise, the workers can simply claim the strike is lawful and refuse to go to work.

- But if you failed to return to work for justifiable reason (e.g. you were out of town when the order arrived, or sick but then immediately reported for work late) that is not ground for dismissal just because you do not return to work immediately.

- So note, even if you follow the procedural requirements and the rules governing conduct of strike, the strike may still be declared unlawful if it is conducted in defiance of:

> an accepted improved offer which was subjected to balloting; or> an assumption of jurisdiction order

- What else can occur during a strike?

Criminal actions: A strike may give rise to criminal actions. for example, union members company officials, or company vehicles drive through human barricade; or security guards fire upon strikers.

Under a DOJ Memo Circular, it is provided that criminal prosecutions for these criminal complaints, if the fiscal learns it arose from a strike or lockout which is pending before DOLE for conclusion or arbitration, should be suspended and the case discussed in DOLE. But once the labor case is dismissed, or if an injunction is issued, then the criminal case can proceed. (Sarmiento v Tuico).

- Strike-breaking: The law prohibits strike-breaking. It also prohibits:

1. Aiding or abetting strike-breaking2. Employment of a strike-breaker3. Being employed as a strike-breaker

- Strike-breaking means obstructing, impeding or interfering with, by force, violence or intimidation, any peaceful picketing by employees during a labor controversy or in the exercise of the right to self-organization or collective bargaining. It includes aiding or abetting such obstruction or interference.

- We have what is called an ‘anti-scab law’. What does it say?

No public official or employee, including officers and personnel of the AFP or PNP, or any armed person, shall bring in, introduce or escort in any manner any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of strikers.

- For example, can police escort union members who want to work? YES. The prohibition only extends to escort of replacement workers - those seeking to replace strikers in

their work. Union members are previously employed. They replace on one.

- Can the barangay captain escort replacement workers? NO. He is a public official.

- Can the secretary of the barangay captain then do it?NO. She/he is a public employee.

- Can a security guard escort them?NOT if he is armed.

- What about a Karate expert?He is not armed. He may escort.

- Can scabs work?YES! The prohibition is against those who escort them in entering and leaving work.

- What are scabs?Those who work during a strike.

- Scabs/replacement workers are entering the premises. Some angry strikers attack them and hit them on the head with placards. Can the barangay captain intervene?

YES. They (public officers) should not be prevented from taking any measure necessary to maintain peace and order, protect life and property and/or enforce the law and legal order.

- Can the police therefore arrest strikers who are conducting a strike without having filed an NOS? (Illegal strike is a criminal offense)

NO. The joint APP/PNP Guidelines say the police/army cannot determine the legality of the strike.

- Note those rules. Some salient aspects of them are:

- Police must keep a 50 m radius from the picketline unless they have to stay nearer to maintain free flow of traffic

- Police must maintain neutrality - they cannot socialize with either side- They will not intervene unless there is a DOLE order asking for their assistance or if a crime is

happening in their presence.

- No union officers/members/organizers may be arrested or detained for union activities without previous consultation with the Secretary of Labor unless for national security and public peace, or in case of commission of a crime.

I do not see how that will apply today. That's a throwback to the days of GO # 5 in 1972, when union activities were severely restrained.

- Even if a strike is illegal, when can the strikers return to work without any sanction?

There are some instances:

1) Unconditional offer to return to work - If the union offers to return to work under the same conditions prior to the strike and the employer rejects this, then they are entitled to backwages from the date of refusal to accept.

- But note: It must be unconditional. If you go on strike because management withdrew some CBA benefits and offer to return to work if management observes the CBA, that is not unconditional - there is a condition: compliance with the CBA!

You must offer to return under conditions immediately prior to the strike so that the company would be the one to blame for its own loss. (Consolidated Labor Ass. v Marsman)

- But if what you say is this, "We offer to return to work. Sana ipagpatuloy natin ang pag-uusap sa loob ng kompanya".

Is there a condition? NO. You are only asking that you discuss the issues - in short, you only ask management that it comply with the grievance machinery - which is its obligation, in the first place. There is no change in the status quo. [It’s as if, instead of striking, you brought the matter up to grievance insetad.] (Master Iron Labor Union v NLRC).

2) Discrimination in readmission - If for example, the union declares a bargaining strike. They reach an agreement to return to work and accept the company proposals. However, upon their reporting for work, the company refused to admit 69 strikers, making it a condition to readmission that they resign from the union.

The Supreme Court said, while initially, the strike was economic, the strike changed its character when they were refused reinstatement due to union activities - it became a ULP strike.

3) Condonation - If there are, for example, 130 strikers. 25 return to work.. Management, despite pendency of an illegal strike case, admits them. It has condoned illegal acts as to those 25 but not as to the others, especially considering it still pursued the illegal strike case. (Phil. International Fashion v NLRC)

- NOTE in all 3, there was either an offer to return to work or an agreement to return to work.

4) In Pari Delicto - where the company engages in illegal lock-out and the union in an illegal strike, the courts will not authorize termination of the strikers but order their reinstatement without backwages. (Phil. Inter-Fashion v NLRC)

For example, the union goes on strike. A return-to-work order is issued and management lets them in but they spend the entire week sitting around in the canteen because the company refuses to give them work. The

Supreme Court said, the union went on illegal strike. The company went on illegal lockout. We will leave them as they are. (Ibid)

EFFECTS OF A STRIKE

1) If lawful:

a) Readmission - all are entitled to readmission (officers and members) - Mere participation in a lawful strike shall not constitute ground by termination of employment even if a replacement had been hired.

- When we say readmission, we mean readmission to the same or substantially equivalent position. In UST v NLRC, there was a return-to-work order requiring the school to readmit striking professors. The school readmitted them but put them in clerical work. The Supreme Court said that was not a substantially equivalent position.

Replacement workers - what happens to them? They took the job subject to the condition that upon termination of the strike, they are also terminated. They do not have a permanent right to their positions. (Rabi v Bautista, 1966)

Reinstatement means restoration to a state from which you were removed or separated.

Backwages - Generally, if it is an economic strike, NONE. "A fair days wage for a fair days' labor".

- If ULP, it shall be discretionary on the courts (since the company caused you to go on strike). But courts rarely award backpay for any strike. The general rule is no-work, no pay. What if the worker has found a job elsewhere? That does not mean he forfeits his right to employment (Cromwell Comm. v CIR, 1964) (But it would be a case-to-case basis. Where, for example, reinstatement is impossible, as when they were under a job contractor, they stuck against the contractor, the court ordered their reinstatement but the company where they were assigned already gave those slots to someone lese. They would be entitled only to backwages) (Metro Coronel v CIR, 1968)

- But where, after notice to return to work, the strikers still refused to comply with the order of reinstatement, they have forfeited their right to reinstatement. (East Asiatic Co. v CIR, 1971; Jackbilt Concrete Block Co. v Norton & Harrison Co., 1976)

2) If Illegal Strike

(a) Employment - officers who knowingly participate are deemed dismissed.

- members: generally no. They simply were misled by the officers, unless they have found sufficient and substantially equivalent employment in the meanwhile.

What if permanent replacements have been hired? Note the old case of Consolidated Labor Association v Marsman (11 SCRA 589). If it is an economic strike, no more readmission. (This case referred to a strike, whether lawful or not. But because the Labor Code states that mere participation in a lawful strike shall not result in loss of employment status, this should only apply to illegal strikes.)

But if it is a ULP strike, they may be readmitted despite hiring of permanent replacements. (Insular Life Assurance Co. Employee Association case / Cromwell Employees Union v CIR)

The Supreme Court has sometimes been liberal and allowed good faith to make a strike which fails to meet the legal requirements not illegal but merely defective.

- Note the case of Bacus v Ople (132 SCRA 690). The workers were not paid their wages for several weeks, so they went on a sit-down strike. The Supreme Court said the mere finding of illegality of the strike should no be followed by wholesale dismissal of workers, considering the strike was very spontaneous and in good faith. Even if there was no NOS, strike vote or even a strikeable ground, at worst under the circumstances, it should have been treated as merely defective and premature. The company did not pay their salaries for 1 ½ months . It broke their patience. They had a valid grievance inspired by the honest belief that the company was doing acts inimical to their interests relative to wages.

Likewise in Ferrer v CIR (17 SCRA 352), the Supreme Court said even if there was no cooling off period, this was not an illegal strike but a "defective" strike-carried out in good faith, the unionists believing in good faith that there was ULP.

- The Bacus vs, Ople ruling won’t apply where there is bad faith, as where the union went on strike because of rearrangement of office furniture. Good faith is still a valid defense, however, against illegality of a strike. (Reliance Surety vs. NLRC)

But where the workers go on strike due to rearrangement of office furniture, no cooling-off period, no strike vote! No submission of its reports, and the strikers harass employers, that is not good faith. (Reliance Surety v NLRC, 1991)

(b) Liability for damages - this is a possibility(c) Liability for criminal acts

- violation of Art 264

3) If Illegal Acts during Strike

(a) Employment - workers or officers who knowingly participate in commission of illegal acts during a strike may be declared to have lost their employment status.

(b) Liability for damages - a possibility

(c) Liability for criminal acts- violation of Art. 264- prosecution for other criminal acts

(These two are mutually exclusive. You cannot entertain prosecutions for both for the same acts.)

LOCKOUT

- A lockout is the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. Therefore, if the company shut down for two days due to an inventory, that is not a lockout because there is no labor dispute. (IF the company pretends to be conducting an inventory so it has an excuse to bar entry to union members, that is a different matter.)

- What if the company refuses to let the union officers inside the company to prevent them from organizing?

That is a lockout. It is a refusal to furnish work. It is not necessary that the refusal be directed to the entire company.

- For example, the company has a factory and a warehouse. The union stages a strike at the factory. The machines were sabotaged. At the warehouse, the warehouseman refuses to allow inside the union members for feat that they will sabotage the products, machineries and spare parts. Illegal?

NO. As long as it was impelled by a justified apprehension that was not illegal. The motivation was not in order to encourage or discourage union membership. It was a purely defensive measure that was a valid lockout. (Rizal Cement Workers Union v Madrigal & Co., 119 Phil 1115).

- Suppose there is a strike. A petition to declare the strike is filed. Then the union makes an offer to return to work. The company refuses to accept it. Is there a lockout? NO. Refusal to accept an offer to return to work is not a lockout where there is a pending petition to declare the strike illegal. The strike cannot be converted into a lockout just because they file the offer to return during the pendency of the illegal strike case. (Rizal Cement Workers Union v CIR, 6 SCRA 841)

- Of course, even if the company has the right to declare a lockout, they cannot be discriminatory and choose to lock-out only some workers they identify to be union leaders. That would be ULP. (San Pablo Oil Factory v CIR, 6 SCRA 628)

- What are the requirement for a valid lock-out?You follow the requirements for a valid strike.

a) Valid grounds- bargaining deadlock- ULP

b) Substantial grounds

c) Not a ground in any issue submitted to arbitration - So if the purpose is to bust the union, the lock-out is invalid. (Dinglasan v NLU, 98 Phil 649).

d) Notice of Lock-out

e) Cooling-off period deadlock - 30 days

ULP - 15 days

f) lock-out vote - secret ballot- majority- meetings or referenda

- This shall be done by majority of Board of Directors or of partners (the controlling share governs)

g) Submission of Lock-out vote

h) Lock-out ban (7 days after submission of vote results)

- For a sole proprietorship, do you need a 7-day waiting period?

NO. Since the purpose is to inform both DOLE and board/partners so they may take proper action, there is no need for this in a sole proprietorship. You are assured of 100% majority and you will never question your own acts.

i) Exhaustion of Pacific Means

- The process must likewise be lawful. No lock-out may continue after an order for assumption of jurisdiction has been issued. If the lockout does not comply with these, it is illegal.

- What are the consequences of an illegal lockout?BACKWAGES - the workers are entitled to full backwages from the date of the lockout.EMPLOYMENT - reinstatement of locked-out workers.

- You also have reduced-offer balloting which will be conducted by the DOLE on the reduced offer (demand) of the union on or before the 30th day of the lock-out.

XX ASSISTANCE TO LABOR ORGANIZATIONS

- The DOLE shall extend special assistance for purposes of collective bargaining to special types of labor organizations. These are the organizations who, due to occupation, organizational structure or insufficient incomes, are not normally covered by major labor organizations or federations.

ex: homeworkersemployees of cottage industriessidewalk vendorspedicab drivers

XXI FOREIGN ACTIVITIES

- May aliens employed here form or join unions?YES, provided:a) They have valid work permits, andb) Their country allows Filipinos to unionize

- Suppose their country does not allow us to form unions, if we happen to be working there. May they give moral support to workers who want to form a union?

NO. All aliens, natural or juridical, including foreign organizations, are strictly prohibited from engaging directly or indirectly in all forms of trade union activities.

- Does that mean that the ITF cannot send seamen's unions newsletters and statements of solidarity?NO. That is without prejudice to normal contacts between Philippine labor unions and recognized

international labor centers.

- Can they give funding grants to local seamen's unions?YES. Local unions do not survive on union dues alone. That is allowed provided there is prior permission

by the secretary of labor.

- Can one of them give a talk to a group of union leaders without seeking permission of the Secretary of Labor?

NO. They cannot give donations, grants or any form of assistance, in cash or kind, directly or indirectly to any labor organization, group of workers or auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education and communication, in relation to TU activities.

When you say "Trade Union Activities", you mean:1. organizing, forming and administering labor organizations2. negotiation and administration of CBAs3. concerted union action4. organizing, managing or assisting union conventions, meetings, rallies, referenda, teach-ins,

seminars, conferences & institutes.5. any form of participation or involvement in rep. proceedings and union elections 6. other analogous activities

- Can they sit-in as observers to a union meeting?

That's all right. That is not participation or involvement.