RIGHT TO PEACEFUL AND CONCERTED ACTIVITIES Labor Relations, Sunday 1PM to 4PM Atty. Carlisle Marie M. Fabie GROUP 3 Balan, Kristen Roseljoy C. Bundalian, Delfin H. III Caňon, Vince R. Chua, Maria Gracia D. Concepcion, Charlene B. Ibrahim, Nahla M. Tanchuling, Ray Jr. V. Velasquez, James M. Yu, Greg Winifredo C. A. BASIS OF RIGHT TO ENGAGE IN CONCERTED ACTIVITIES 1. 1987 Constitution • Article XIII, Section 3 The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. • Article XIII, Section 3 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. 2. Statutory • Article 278 (b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. 3. Limitations The right to strike, while constitutionally recognized, is not without legal constrictions. The Labor Code is emphatic against the use of violence, coercion and intimidation during a strike and to this end prohibits the obstruction of free passage to and from the employer's premises for lawful purposes. The sanction provided in par. (a) of Art. 262 (now Article 279) thereof is so severe that "any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status." (Great Pacific Life Employees v. Great Pacific Life, G.R. 126717, February 1999) The right to strike is one of the rights recognized and guaranteed by the Constitution as an instrument of labor for its protection against exploitation by management. By virtue of this right, the workers are able to press their demands for better terms of employment with more energy and persuasiveness, poising the threat to strike as their reaction to the employer's intransigence. The strike is indeed a powerful weapon of the working class. But precisely because of this, it must be handled carefully, like a sensitive explosive, lest it blow up in the workers' own hands. Thus, it must be declared only after the most thoughtful consultation among them, conducted in the only way allowed, that is, peacefully, and in every case conformably to reasonable regulation. Any violation of the legal requirements and strictures, such as a defiance of a return-to-work order in industries affected with public interest, will render the strike illegal, to the detriment of the very workers it is supposed to protect. Even war must be lawfully waged. A labor dispute demands no less observance of the rules, for the benefit of all concerned. (BLTB Bus Co. v. NLRC, G.R. No. 101858, August 21, 1992) B. STRIKE ACTIVITY 1. Definition of Terms Strike Refers to any temporary stoppage of work by the concerted action of employees as a result of a labor or industrial dispute [IRR, Book V, Rule I, Sec. 1(uu)]. NOTE: The fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential, since the substance of the situation and not its appearance will be deemed controlling (Toyota Motor Phils. Corp. Workers Association v. NLRC, 537 SCRA 174). It shall comprise not only concerted work stoppages, but also slowdowns, mass leaves, sit downs, attempt to damage, destroy or sabotage plant equipment and facilities, and similar activities (Samahang Manggagawa sa Sulpicio Lines v. Sulpicio Lines, Inc., G.R. No. 140992, March 25, 2004). Strike-breaker Any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining. (Article 219 (r), Labor Code). No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. (Article 279 (c), Labor Code). Strike area It means the establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment [Sec. 1 (vv), Rule I, Book V, IRR]. 2. Nature and Purpose • A strike is a coercive measure resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less, paralyzed (Phil. Can Co. v. CIR, G.R. No. L3021, July 13, 1950). • A strike is "any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute." It is the most preeminent of the economic weapons of workers which they unsheathe to force management to agree to an equitable sharing of the joint product of labor and capital. Undeniably, strikes exert some disquieting effects not only on the relationship between labor and management but also on the general peace and progress of society. Our laws thus regulate their exercise within reasons by balancing the interests of labor and management together with the overarching public interest. Some of the limitations on the exercise of the right of strike are provided for in paragraphs (c) and (f) of Article 263 of the Labor Code, as amended. They Provide for the procedural steps to be followed before staging a strike — filing of notice of strike, taking of strike vote, and reporting of the strike vote result to the Department of Labor and Employment. (Lapanday Workers Union v. NLRC, G.R. No. 95494-97, September 7, 1995) 3. Elements of strike a) Existence of established relationship between the strikers and the person or persons against whom the strike is called. b) Existence of an employer - employee relationship. c) Existence of a labor dispute and the utilization by labor of the weapon of concerted refusal to work as a means of persuading, or coercing compliance with the working men’s demands. d) Employment relation is deemed to continue although in a state of belligerent suspension. e) Temporary work stoppage. f) Work stoppage is done through concerted action. g) The striking group is a legitimate labor organization; in case of a bargaining deadlock, it must be the employees' sole bargaining representative. 4. Effect on Work Relationship “Striking Employee” is still an employee ◦ During a strike the employer – employee relationship is not terminated but merely suspended as the work stoppage is not permanent but only temporary. Thus, a striking employee is still an employee. The employee’s status during a strike remains, but the effects of employment are suspended, hence a striking employee, as a rule, is not entitled to his wage during the strike (2, Azucena, 2016, p. 590). ◦ Mere participation in a lawful strike is not a sufficient ground for termination of the services of a union member. The Labor Code protects ordinary, rank-and-file union members who participated in a strike from losing their jobs provided that they did not commit illegal acts during the strike. The Labor Code does at the same time hold accountable union officers who knowingly participated in an illegal strike. (PT& T Corporation v. NLRC, G.R. No. 109281, December 7, 1995). 5. Types of ULP, Changes and Conversion a. Unfair Labor Practice For an act to be considered ULP, it must be expressly provided in Art. 259 and 260. Art. 259 - ULP committed by employers Art. 260 - ULP committed by labor organizations In addition, it shall include Art. 274 and 278(c) Art. 274 - Gross violations of the CBA Art. 278(c) - Union-Busting Art. 278 (c) Union-Busting The act of union-busting by an employer is an unfair labor practice which may be invoked as a valid ground for strike. (15-day cooling off period shall not apply) Elements 1. Dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws 2. The existence of the union is threatened by such dismissal Dismissals not considered union-busting 1. When it does not threaten the existence of the union 2. Union officers not elected in accordance to union's constitution and by-laws 3. Dismissal of appointive officers 4. Dismissal of ordinary union members Shell Oil Workers Union v. Shell Co. Phils. Summary Invoking management prerogative, the company transferred 18 security guards to other departments and hired private security guards as replacement. The 18 security guards were dismissed on ground of refusing to obey the transfer order. The union staged a strike which was accompanied by violence. Lower court held that there was no ULP and strike was illegal, which resulted to outright dismissal of all union officers. SC Held: Strike is legal. It cannot be declared illegal merely because of the attendance of violence. It is legal because it is grounded on good faith that a ULP was committed. All union officers are reinstated except to the president and assistant auditor being guilty of serious acts of violence. b. Bargaining Deadlock A failure in the collective bargaining negotiation between the SEBA and employer resulting in a stalemate. c. Change/Conversion Consolidated Labor Assn. of the Phil. v. Marsmand and Co. Conversion doctrine A strike or lockout may start as an economic strike but later on, because of the actuations of the parties, the same may be converted to an unfair labor practice strike, or vice versa. Under this situation, the "conversion doctrine" will apply, in which case, the converted strike from economic to political shall be subject to the legal requirements appropriate for such ground. In an economic strike, the strikers are not entitled to backwages, since the employer should get the equivalent day's work for what he pays his employees. In political strike, the Court still has the discretion to determine whether or not to grant backwages. d. Non-Conversion - Strike to Lockout Rizal Cement Workers Union v. CIR Doctrine The strike which was openly and publicly declared by the petitioner union, can not be converted into a pure and simple lockout, by the mere obedient of filing before the trial court a notice of offer to return to work, during the pendency of the labor dispute. 6. Grounds a. Allowable Strikes 1. Unfair labor practice (Political Strike) 2. A collective barganing deadlock (Economic Strike) b. Prohibited Strikes Art. 278 (b) No labor union may strike and no employer may declare a lockout on grounds involving interunion and intra-union disputes. Reason There is no way can such disputes involve the employer and, therefore, should not be allowed to affect it at all. Art. 278 (g) Certified labor disputes "National interest cases" Effect of certification on strikes 1. On upcoming strike - enjoined, notwithstanding the filing of any MFR of the certification order 2. During actual strike - all striking employees shall immediately return to work Art. 279 (a) 1. Without first having bargained collectively 2. Without first having filed a notice to strike 3. Without first having been obtained the necessary strike vote Art. 280 Improved Offer Balloting During Cooling-Off Period It is the period of time given by the NCMB to mediate and conciliate the parties. It is the span of time allotted by law for the parties to settle their disputes in a peaceful manner before staging a strike or lockout. The principles of improved offer and reduced offer balloting apply during the cooling-off period. BVRXXII Sec. 5 No strike may be declared on grounds involving inter-union and intra-union disputes or without first having filed a notice or without the necessary strike vote. Neither will a strike be declared after assumption of jurisdiction be the Secretary or after certification, or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike. Ilaw at Buklod ng Manggagawa v. NLRC Summary In reaction to the employer's refusal to correct wage distortions caused by RA 6727, the employees stopped rendering their overtime shifts and opted to do only 8 hour shifts until the corrections have been complied with. RA 6727 A strike is illegal if based on alleged salary distortion. A legislative intent solves the problem by expressing that it should be sought by voluntary negotiation or arbitration. c. No Strike Clause “No Strike, No Lockout” Clause in the CBA On the part of the union, it will not conduct a strike during the effectivity of the CBA, and On the part of the employer, it will not a stage a lockout during the lifetime thereof Panay Electric Co. Inc. v. NLRC Summary: The VP of the union is being transferred to a different site which he refused. The employer terminated the VP of the union on the ground of insubordination. Union filed a notice to strike on the belief that their VP is being singled out. The right to strike, however, is not absolute. It has heretofore been held that a "no strike, no lock-out" provision in the Collective Bargaining Agreement ("CBA") is a valid stipulation although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos A no strike, no lock out provision can only be invoked when the strike is economic in nature, i.e. to force wage or other concessions from the employer which he is not required by law to grant. Such a provision cannot be used to assail the legality of a strike which is grounded on unfair labor practice, as was the honest belief of herein petitioners. Again, whether or not there was indeed unfair labor practice does not affect the strike. 7. Procedural Requirements Requisites for a Valid Strike A strike, in order to be valid and legal, must conform to the following procedural requisites: 1st requisite - It must be based on a valid and factual ground; 2nd requisite - A notice of strike must be filed with the DOLE; 3rd requisite - A notice must be served to the DOLE at least twenty-four (24) hours prior to the taking of the strike vote by secret balloting, informing said office of the decision to conduct a strike vote, and the date, place, and time thereof; 4th requisite - A strike vote must be taken where a majority of the members of the union obtained by secret ballot in a meeting called for the purpose, must approve it; 5th requisite - A strike vote report should be submitted to the NCMB-DOLE at least seven (7) days before the intended date of the strike; 6th requisite - Except in cases of union-busting, the cooling-off period of 15 days, in case of unfair labor practices of the employer, or 30 days, in case of collective bargaining deadlock, should be fully observed; and 7th requisite - The 7-day waiting period/strike ban reckoned after the submission of the strike vote report to the DOLE should also be fully observed in all cases. All the foregoing requisites, although procedural in nature, are mandatory and failure of the union to comply with any of them would render the strike illegal. Valid Grounds: The law recognizes only 2 grounds in support of a valid strike: 1. Collective bargaining deadlock (Economic Strike) 2. Unfair labor practice (Political Strike). A strike not based on any of these two grounds is illegal. Purpose of the 7-day waiting period or Strike Ban The seven (7) day waiting period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the approval of the majority of the union members. WAITING PERIOD/STRIKE BAN VS. COOLING-OFF PERIOD. The 7-day waiting period or strike ban is a distinct and separate requirement from the coolingoff period prescribed by law. The latter cannot be substituted for the former and vice-versa. The cooling-off period is counted from the time of the filing of the notice of strike. The 7-day waiting period/strike ban, on the other hand, is reckoned from the time the strike vote report is submitted to the DOLE. Consequently, a strike is illegal for failure to comply with the prescribed mandatory cooling-off period and the 7-day waiting period/strike ban after the submission of the report on the strike vote. The requirements of cooling-off period and 7-day waiting period/strike ban must both be complied with. The labor union may take the strike vote and report the same to the NCMBDOLE within the statutory cooling-off period. In this case, the 7-day waiting period/strike ban should be counted from the day following the expiration of the cooling-off period. A contrary view would certainly defeat and render nugatory the salutary purposes behind the distinct requirements of cooling-off period and the waiting period/strike ban. In the event the result of the strike/lockout vote ballot is filed within the cooling-off period, the 7-day requirement shall be counted from the day following the expiration of the cooling-off period. The seven (7) days should be added to the cooling-off period of fifteen (15) days, in case of unfair labor practice, or thirty (30) days, in case of collective bargaining deadlock and it is only after the lapse of the total number of days after adding the two (2) periods that the strike/lockout may be lawfully and validly staged. 8. Tests of Legality • Legal Strikes Purpose and Means Test 1. Luzon Marine Department Union vs Roldan, 86 Phil. 507 (GR No. L-2660, May 30, 1950) In cases not falling within the prohibition against strikes, the legality or illegality of the strike depends, first, upon the purpose for which it is maintained, and, second upon the means employed in carrying it on. The law does not expressly ban strikes except when enjoined against by the court; but if a strike is declared for a trivial, unjust or unreasonable purpose, or if it is carried out through unlawful means, the law will not sanction it and the court will declare it illegal, with the adverse consequences to the strikers. If the laborers resort to a strike to enforce their demands, instead of resorting first to the legal processes provided by law, they do so at their own risk, because the dispute will necessarily reach the court and, if the latter should find that the strike was unjustified the strikers would suffer the adverse consequences. 2. Philippine Marine Officers Guild vs. Compania Maritima, 22 SCRA 1113 (GR No. L-20662-63, March 19, 1968) Acts of violence in this jurisdiction, when committed in carrying on a strike are not to be overlooked in determining its legality or illegality. To overlook these acts of violence would encourage abuses and terrorism and subvert the purpose of the law which provides for arbitration and peaceful settlement of disputes. If the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable, or unjust, or if in carrying on the strike the strikers should commit violence or cause injuries to persons or damage to property, the strike, although not prohibited by injunction, may be declared by the court illegal with adverse consequences to the strikers. 3. Union of Filipro Employees vs. Nestle Phils. Inc., 192 SCRA 396 (GR No. 88710-13, Dec. 19, 1990) Regardless therefore of their motives, or the validity of their claims, the striking workers must cease and/or desist from any and all acts that tend to, or undermine the authority of the Secretary of Labor, once an assumption and/or certification order is issued. They cannot, for instance, ignore return-to-work orders, citing unfair labor practices on the part of the company, to justify their actions. A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 264 of the Labor Code as amended. The Union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act. 4. Reliance Surety and Insurance Co vs. NLRC, 193 SCRA 365 (GR No. 86917-18, Jan. 25, 1991) The strike in question was illegal, for failure of the striking personnel to observe legal strike requirements, to wit: (1) as to the fifteen-day notice; (2) as to the two-thirds required vote to strike done by secret ballot; (3) as to submission prior to the strike. As found likewise by the Commission, in the course of the strike held, certain strikers harassed non-striking employees, called company officers names, and committed acts of violence (as a result of which, criminal charges were brought with the fiscal’s office.) There is no question that the strike itself was prompted by no actual, existing unfair labor practice committed by the petitioner. In effecting a change in the seating arrangement in the office of the underwriting department, the petitioner merely exercised reasonable prerogative that employees could not validly question, much less assail as an act of unfair labor practice. In staging the strike in question, a strike that was illegal in more ways than one, the reinstated union officers were clearly in bad faith, and to reinstate them without, indeed, loss of seniority rights, is to reward them for an act public policy does not sanction. 5. Ilaw at Buklod ng Manggagawa vs NLRC, 198 SCRA 586 (GR No. 91980, June 27, 1991) Article 263 provides that the “right of legitimate labor organizations to strike and picket, and of employer to lockout, consistent with the national interest, shall continue to be recognized and respected.” The legality of these activities is usually dependent on the legality of the purposes sought to be attained and the means employed therefor. These activities may be forbidden or restricted by law or contract. In the particular instance of “distortions of the wage structure within an establishment” resulting from “the application of any prescribed wage increase by virtue of a law or wage order,” Section 3 of Republic Act No. 6727 prescribes a specific, detailed and comprehensive procedure for the correction thereof, thereby implicitly excluding strikes or lockouts or other concerted activities as modes of settlement of the issue. • Guidelines and Balancing of Interest 1. Shell Oil Workers Union vs. Shell Co. Phils., 39 SCRA 276 (GR No. L-28607, May 31, 1971) What is clearly within the law is the concerted activity of cessation of work in order that a union's economic demands may be granted or that an employer cease and desist from an unfair labor practice. There is though a disapproval of the utilization of force to attain such an objective. A strike otherwise valid, if violent in character, may be placed beyond the pale. Care is to be taken, however, especially where an unfair labor practice is involved, to avoid stamping it with illegality just because it is tainted by such acts. To avoid rendering illusory the recognition of the right to strike, responsibility in such a case should be individual and not collective. A different conclusion would be called for, of course, if the existence of force while the strike lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. It could be reasonably concluded then that even if justified as to ends, it becomes illegal because of the means employed. The plain and unqualified constitutional command of protection to labor should not be lost sight of. The State is thus under obligation to lend its aid and its succor to the efforts of its labor elements to improve their economic condition. It is now generally accepted that unionization is a means to such an end. It should be encouraged. Thereby, labor's strength, what there is of it, becomes solidified. It can bargain as a collectivity. Management then will not always have the upper hand nor be in a position to ignore its just demands. That, at any rate, is the policy behind the Industrial Peace Act. The judiciary and administrative agencies in construing it must ever be conscious of its implications. Only thus may there be fidelity to what is ordained by the fundamental law. For if it were otherwise, instead of protection, there would be neglect or disregard. That is to negate the fundamental principle that the Constitution is the supreme law. 2. Almira vs. BF Goodrich Phils. Inc., 58 SCRA 120 (GR No. L-34974, July 25, 1974) A strike otherwise valid, if violent in character, may be placed beyond the pale. Care is to be taken, however, especially where an unfair labor practice is involved, to avoid stamping it with illegality just because it is tainted by such acts. To avoid rendering illusory the recognition of the right to strike, responsibility in such a case should be individual and not collective. A different conclusion would be called for, of course, if the existence of force while the strike lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. It could be reasonably concluded then that even if justified as to ends, it becomes illegal because of the means employed. The basic doctrine underlying the provisions of the Constitution so solicitous of labor as well as the applicable statutory norms is that both the working force and management are necessary components of the economy. The rights of labor have been expanded. Concern is evident for its welfare. The advantages thus conferred, however, call for attendant responsibilities. The ways of the law are not to be ignored. Those who seek comfort from the shelter that it affords should be the last to engage in activities which negate the very concept of a legal order as antithetical to force and coercion. What is equally important is that in the steps to be taken by it in the pursuit of what it believes to be its rights, the advice of those conversant with the requirements of legal norms should be sought and should not be ignored. It is even more important that reason and not violence should be its milieu. 9. Defenses – Good Faith in ULP Strikes • GOOD FAITH STRIKE DOCTRINE A strike may be considered legal where the union believed that the company committed ULP and the circumstances warranted such belief in good faith, although subsequently such allegations of ULP are found out as not true (Bacus v. Ople. G.R. No. L-56956, October 23, 1984) Illustrative Cases: 1. MASTER IRON LABOR UNION vs. NLRC, G.R. No. 92209, Feb. 17, 1993 Facts: Master Iron Labor Union staged a strike, due to the Corporation’s continued subcontracting. It’s calls for conciliation made by MILU were ignored. MILU contends that notwithstanding the non-strike provision in the CBA, the strike they staged was legal because the reasons therefor are non-economic in nature. They assert that the NLRC abused its discretion in holding that there was a "failure to exhaust the provision on grievance procedure" in view of the fact that they themselves sought grievance meetings but the Corporation ignored such requests. Corollary, if the strike is founded on an unfair labor practice of the employer, a strike declared by the union cannot be considered a violation of the no-strike clause. Issue: Whether or not a defense of good faith is present. Held: The strike staged by the petitioners was a legal one even though it may have been called to offset what the strikers believed in good faith to be unfair labor practices on the part of the employer. Verily, such presumption of legality prevails even if the allegations of unfair labor practices are subsequently found out to be untrue. An economic strike is defined as one which is to force wage or other concessions from the employer which he is not required by law to grant. In this case, petitioners enumerated in their notice of strike the following grounds: violation of the CBA or the Corporation's practice of subcontracting workers; discrimination; coercion of employees; unreasonable suspension of union officials, and unreasonable refusal to entertain grievance. 2. HOTEL ENTERPRISE OF THE PHILIPPINES INC. (HEPI) v. SAMAHANG MANGGAGAWA SA HYATT – NATIONAL UNION OF WORKERS IN HOTEL, RESTAURANT INDUSTRIES, G.R. No. 165756 Facts: In 2001, HEPI's hotel business suffered a slump due to local and international economic slowdown. After implementing several schemes to recover their losses, HEPI decided to implement a downsizing scheme by removing positions identified redundant. The effect was to be a reduction of the hotel's rank and file employees from the agreed number of 248, from their CBA, down to just 150. The Union opposed the downsizing plan because they did not believe the financial report stating that the hotel was incurring heavy financial losses, and for being violative of the CBA. Despite its opposition, a list of positions declared redundant and to be contracted out was given by the management to the Union. Notices of termination were, likewise, sent to 48 employees whose positions were to be retrenched or declared as redundant. Issue: Whether or not a defense of good faith is present. Held: Here, respondent Union went on strike in the honest belief that petitioner was committing ULP after the latter decided to downsize its workforce contrary to the staffing/manning stan dards adopted by both parties under a CBA forged only four (4) short months earlier. The belief was bolstered when the management hired 100 contractual workers to replace the 48 terminated regular rank-and-file employees who were all Union members. Indeed, those circumstances showed prima facie that the hotel committed ULP. Thus, even if technically there was no legal ground to stage a strike based on ULP, since the attendant circumstances support the belief in good faith that petitioner's retrenchment scheme was structured to weaken the bargaining power of the Union, the strike, by exception, may be considered legal. 3. NATIONAL UNION OF WORKERS, HOTELS, RESTAURANTS, AND ALLIED INDUSTRIES v. NLRC, G.R. No. 125561, March 6, 1998 Held: An established caveat, however, is that a mere claim of good faith would not justify the holding of a strike under the aforesaid exception as, in addition thereto, the circumstances must have warranted such belief . It is, therefore, not enough that the union believed that the em ployer committed acts of ULP when the circumstances clearly negate even a prima facie show ing to sustain such belief. The dismissal of Coronel which allegedly triggered the wildcat strike was not a suffi cient ground to justify that radical recourse on the part of the Junta members. As the NLRC later found, the dismissal was legal and was not a case of ULP but a mere exercise of manage ment prerogative on discipline, the validity of which could have been questioned through the filing of an appropriate complaint and not through the filing of a notice of strike or the holding of a strike. Evidently, to repeat, appropriate remedies under the Labor Code were available to the striking employees and they had the option to either directly file a case for illegal dismissal in the office of the labor arbiter or, by agreement of the parties, to submit the case to the griev ance machinery of the CBA so that it may be subjected to voluntary arbitration proceedings. Petitioners should have availed themselves of these alternative remedies instead of re sorting to a drastic and unlawful measure, specifically, holding a wildcat strike at the expense of the Hotel whose operations were consequently disrupted for two days. Not every claim of good faith is justifiable, and herein petitioner's claim of good faith shall not be counternanced by this Court since their decision to go on strike was clearly unwarranted. 4. SAMAHAN NG MANGGAGAWA SA SULPICIO LINES, INC. v. NAFLU v. LINES, G.R. No. 140992, March 25, 2004 SULPICIO Facts: The Union filed a notice of strike due to deadlock with the NCMB-NCR after the renegotiation of CBA with Sulpicio Lines remained a stalemate. The Union filed a second notice of strike and conducted on the same day, alleging that Sulpicio Lines committed acts constituting ULP amounting to union busting. Issue: Whether or not a defense of good faith is present. Held: Petitioner insists that the strike can still be declared legal for it was done in good faith, be ing in response to what its officers and members honestly perceived as unfair labor practice or union busting committed by respondent. Petitioners accusation of union busting is bereft of any proof. In Tiu v. NLRC, it was held that "x x x, but in the case at bar the facts and the evidence did not establish even at least a rational basis why the union would wield a strike based on al leged unfair labor practices it did not even bother to substantiate during the conciliation pro ceedings. It is not enough that the union believed that the employer committed acts of unfair la bor practice when the circumstances clearly negate even a prima facie showing to warrant such a belief." The rule now is that requirements as the filing of a notice of strike, strike vote, and no tice given to the Department of Labor are mandatory in nature. Thus, even if the union acted in good faith in the belief that the company was committing an unfair labor practice, if no notice of strike and a strike vote were conducted, the said strike is illegal." 10. Illegal Strike One staged for a purpose not recognized by law or if for a valid purpose conducted through means not sanctioned by law. a. Basis - Illegality Art. 278 Strikes, Picketing and Lockouts a) It is the policy of the state to encourage free trade unionism and free collective bargaining. b) Workers shall have the right to engaged in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lock out on grounds involving inter-union and intra-union disputes. 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 Ministry 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 or recognized 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. When is strike illegal? a) Contrary to specific prohibition of law, such as strike by employees performing governmental functions; b) Violates requisites of a valid strike provided by law; c) Declared for an unlawful purpose, such as inducing the employer to commit ULP against non union employees d) Employs unlawful means in pursuit of its objective, such as widespread terrorism of non strikers; e) Declared in violation of an existing injunction f) Contrary to an existing agreement, such as a no strike clause or conclusive arbitration clause Who has jurisdiction to determine the legality of strike? The Labor Arbiter in the appropriate Arbitration Branch of the NLRC has the power to determine questions involving the legality or illegality of a strike upon the filing of a proper complaint and after due hearing. Art. 279 Prohibited Activities a.) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. Art. 280 Improved offer balloting In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. Cases: 1. Reliance Surety and Insurance Co. vs. NLRC and Reliance Surety and Insurance Employee Union Facts: To avoid unnecessary loss of productive working time due to personal and non-workrelated conversations, personal telephone calls and non-work-connected visits by personnel to other departments, the respondent Reliance Surety Insurance Co., Inc. thru the manager of its underwriting department, effected a change in the seating arrangement of its personnel in said department. Isagani Rubio, Rosalinda Macapagal, Glene Molina, and SeveraCansino protested the transfer of their tables and seats, claiming that the change was without prior notice and was done merely to harass them as union members. When the manager insisted, a heated discussion ensued, during which Rubio and companions were alleged to have hurled unprintable insults to the manager and supervisors. Issue: Whether or not strikers who have been found to have staged an illegal strike may be reinstated to work. Held: Change in the seating arrangement in the office of the underwriting department, the petitioner merely exercised a reasonable prerogative employees could not validly question, much less assail as an act of unfair labor practice. There is no dispute that the strike in question was illegal, for failure of the striking personnel to observe legal strike requirements, to wit: (1) as to the fifteen-day notice; (2) as to the two-thirds required vote to strike done by secret ballot; (3) as to submission of the strike vote to the Department of Labor at least seven days prior to the strike. 2. Gold City Integrated Port Service Inc. vs. NLRC Facts: Petitioner's employees stopped working and gathered in a mass action to express their grievances regarding wages, thirteenth month pay and hazard pay. Said employees were all members of the Macajalar Labor Union — Federation of Free Workers (MLU-FFW) with whom petitioner had an existing collective bargaining agreement. Petitioner was engaged in stevedoring and arrastre services at the port of Cagayan de Oro. The strike paralyzed operations at said port. Issue: Whether or not the separation pay and backwages be awarded by public respondent NLRC to participants of illegal strike Held: As the evidence on record will show, respondents were not actually terminated from the service. They were merely made to submit to a screening committee as a prerequisite for readmission to work. The fact remains that respondents who are resistant to such procedure are partly responsible for the delay in their readmission back to work. Under the Labor Code, a worker merely participating in an illegal strike may not be terminated from his employment. It is only when he commits illegal acts during a strike that he may be declared to have lost his employment status. Since there appears no proof that these union members committed illegal acts during the strike, they cannot be dismissed. The striking union members among private respondents are entitled to reinstatement, there being no just cause for their dismissal. b. Effect of Illegality What is the consequence of an illegal strike? A Union Officer who knowingly participates in an illegal strike and who knowingly participates in the commission of illegal acts during a strike may be declared to have lost their employment status. An Ordinary Striking worker cannot be terminated for mere participation in an illegal strike. There must be a proof that he committed illegal acts during a strike. Diwa Ng Pagkakaisa-Paflu vs. Filtex International Corporation Facts: On February 19, 1961, without any notice or reason why a strike should be declared, two dismissed employees of the respondent corporation, together with several companions who were admittedly not connected with respondent corporation either as employees of former employees, decided to put a picket line in the premises of the corporation to compel the management to reinstate them to their former position. When the employees on the third shift reported for work at midnight of that date they saw the picket line and decided not to cross the same. When the union, through its officer came to know of the incident the following morning, it lost no time in putting an end to the picketing. Issue: Whether or not there is a stoppage of work on Feb 19, 1961 due to strike. Held: From all the facts and circumstances, we find no reason to consider the stoppage of work in the night of February 19, 1961, as a strike declared in violation of the no strike clause of the collective bargaining agreement or which should have been preceded by a recourse to the grievance procedure established, let alone a strike for which the officers of the union should be held responsible. Bacus vs. Ople Facts: Findlay Millar Timber Company is engaged in logging and manufacture of plywood, veneer and other lumber products. The company employs approximately 2,000 employees more or less, among whom are the herein petitioners. On February 19, 1979, about 1,400 employees, more or less, of the Company staged a mass walk-out, to protest among others the non-payment of their salaries and wages, non-payment of unused vacation and sick leaves, and non-payment of the 13th month pay. Issue: Whether or not the order of minister of labor employment was rendered with grave abuse of discretion or without or in excess of its jurisdiction Held: Yes. A mere finding of the illegality of a strike should not be automatically followed by wholesale dismissal of the strikers from their employment. Even if declared illegal, need not have been attended with such a drastic consequence as termination of employment relationship because of the security of tenure provision under the Constitution. c. Employment of Strike Breakers ART. 279.  Prohibited Activities – (b) No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or on the exercise of the right to self- organization or collective bargaining, or shall aid or abet such obstruction or interference. (c) No employer shall use or employ any strikebreaker, nor shall any person be employed as a strikebreaker. Art (212) 219 (r) “Strike-breaker” means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self- organization or collective bargaining. d. Run Away Shop Complex Electronics Employees vs NLRC 310 SCRA 403 G.R.No. 121315, July 19, 1999 A runaway shop is defined as an industrial plant moved by its owners from one location to another to escape union labor regulations or state laws, but the term is also used to describe a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities. It is one wherein the employer moves its business to another location or it temporarily closes its business for anti – union purposes. A runaway shop in this sense is a relocation motivated by anti-union animus rather than for business reasons. e. Burden Of Economic Loss 1. Cromwell Commercial Employees and Laborers Union vs CIR G.R. No. L-19778 Sept 30, 1964 Discriminatory dismissed employees - received backpay from the date of the act of discrimination, that is from the day of their discharge. Strikers- As a voluntary act of protest against what they considerd unfair labor practices of the company. The stoppage of their work was not the direct consequence of the company’s unfair labor practice. Hence their economic loss should not be shifted to the employer. American Manufacturing Co. NLRB 443. provides when employees voluntarily go on strike even if in protest against unfair labor practices it has been our policy not to award them backpay during a strike. However when the strikers abandon the strike and apply for reinstatement new conditions that constitute unfair labor practices. The court that in the considerations impelling our refusal to award backpay are no longer controlling. When an employer refuses to reinstate strikers except upon their acceptance of the new conditions that discriminate against them because of their union membership or activities the strikers who refuse to accept the conditions and are consequently refused reinstatement are entitled to be made whole for any loses of pay they may have suffered by reason of the respondents discriminatory acts 2. SSS v. SSS Supervisors Union G.R. No. L-31832 Oct 23, 1982 Burden of economic loss – The age old rule governing the relation between labor and capital or management and employee is that of a “fair day’s wage for a fair day’s labor”. If there is no work performed by the employee there can be no wage or pay unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. It is hardly fair or just for an employee or laborer to fight or litigate against his employer on the employee’s time In this case, the failure to work on the part of the members of respondent Union was due to circumstances not attributable to themselves. But neither should the burden of the economic loss suffered by them be shifted to their employer, the SSS which was equally faultless, considering that the situation was not a direct consequence of the employer’s lockout or unfair labor practice under the circumstances it is but fair that each party must bear his own loss. Justice and equity demands that each must have to bear its own loss, thus placing the parties in equal footing where none should profit from the other there being no fault of either. 3. Philippine Inter-Fashion Inc vs. NLRC. G.r. No. L-59847 Burden of Economic Loss – Petitioner engaged in an illegal lockout while the union engaged in an illegal strike that the unconditional offer of the 150 striking employees to return to work and to withdraw their complaint of illegal lockout against petitioner constitutes condonation of the illegal lockout and that the unqualified acceptance of the offer of the 150 striking employees by petitioner constitutes condonation of the illegal strike insofar as the reinstated employees are concerned. Both petitioner and the strikers are in pari delicto, a situation which warrants the maintenance of the status quo. This means that the contenting parties must be brought back to their respective positions before the controversy that is before the strike. The general rule that strikers are not entitled to backwages (with some exceptions not herein applicable such as where employer is guilty of oppression and union-busting activities. More so is the principle of “no work no pay” applicable to the case at bar f. Improved Offer Balloting and Strikes Art. 280  – In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. C. SLOW DOWN AS CONCERTED ACTIVITY Ilaw at Buklod ng Manggagawa v. NLRC G.R. No. 91980, June 27, 1991 Slowdown is an inherently illegal activity essentially illegal even in the absence of a no- strike clause in a collective bargaining contract, or statute or rule. Slowdown is generally condemned as inherently illicit and unjustifiable, because while the employees “continue to work and remain at their positions and accept the wages paid to them” they at the same time “select what part of their allotted tasks they care to perform of their own volition or refuse openly or secretly, to the employer’s damage, to do other work in other words they “work on their own terms.” Interphil Laboratories Employees V Interphil. G.R. No. 142824 Dec 19, 2001 “Overtime boycott” or “work slowdown” by the employees constituted a violation of their CBA, which prohibits the union or employee, during the existence of the CBA to stage a strike or engage in slowdown or interruption of work. D. PICKETING Picketing –is a concerted activity of workers consisting in peacefully marching to and fro before an establishment involved in labor dispute generally accompanied by the carrying and display of signs, placards and banners intended to inform the public about the dispute. The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution. If peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship. (Phil. Association of Free Labor Unions (PAFLU) vs. Judge Gaudencio Cloribel et al., L-25878, March 28, 1969, 27 SCRA 465, 472,) a. Requisites of Lawful Picketing The most singular requirement to make picketing valid and legal is that it should be peacefully conducted. Based on the foregoing provision, the requisites may be summed up as follows: 1. The picket should be peacefully carried out; 2. There should be no act of violence, coercion or intimidation attendant thereto; 3. The ingress to (entrance) or egress from (exit) the company premises should not be obstructed; and 4. Public thoroughfares should not be impeded. • Unlike a strike which is guaranteed under the Constitutional provision on the right of workers to conduct peaceful concerted activities under Section 3, Article XIII thereof, the right to picket is guaranteed under the freedom of speech and of expression and to peaceably assemble to air grievances under Section 4, Article III (Bill of Rights) thereof. Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Difference between strike and picketing Strike To withhold or to stop work by concerted action of Ees as a result of an industrial or labor dispute. The work stoppage may be accompanied by picketing by the striking employees outside of the company compound. Focuses on stoppage of work Picketing To march to and from the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. It is a strike activity separate and different from actual stoppage of work. Focuses on publicizing the labor dispute and its incidents to inform the public of what Is happening in the company struck against. b. Injunctions and Innocent Third Party Rule The right to picket as a means of communicating the facts of a labor dispute is a phrase of the freedom of speech guaranteed by the constitution. If peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship. The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third parties or "innocent. bystanders" if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. (LIWAYWAY PUBLICATIONS, INC., vs. PERMANENT CONCRETE WORKERS UNION, G.R. No. L-25003, October 23, 1981) Injunction cannot be issued against the conduct of picketing by the workers. Under our constitutional set up, picketing is considered part of the freedom of speech duly guaranteed by the Constitution. Exceptions: (Picketing may be enjoined by the NLRC): 1. When carried out through illegal means; 2. Involves the use of violence and other illegal acts; 3. Affects the rights of third parties or innocent bystanders and injunction becomes necessary to protect such rights However, in situations where the picket affects not only the employer but also the business operations of other establishments owned by third parties, an injunction may be secured by the latter from the regular courts to enjoin the picket under the “Innocent Bystander Rule.” Innocent Bystander Rule- Under this rule, the third party employers or “innocent bystanders” who have no employer -employee relationship with the picketing strikers, may apply for injunction with the regular courts (not with the NLRC) to enjoin the conduct of the picket. Innocent bystander - A third party in a picketing who has no existing connection or interest with the picketing union (MSF Tire & Rubber v. CA, G.R. No. 128632, August 5, 1999). c. Prohibited Activities – Peaceful Picketing Article 264. Prohibited activities. (d) No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference. (e) No Employer shall employ any strike-breaker that shall interfere with any peaceful picketing by employees during any labor controversy (LC, Art. 264) Strike-breaker - Any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or Collective Bargaining. (LC, Art. 212). Other Unlawful Picketing Acts: 1. Moving Picket - The right granted to striking workers is merely a pedestrian right. It does not create the additional rights of squatting or assembly on the portion of employer’s land. Any such squatting or assembly would exceed the scope of the public’s easement and would constitute enjoinable trespass. 2. Untruthful Picketing - Such act is tantamount to unlawful picketing which is enjoinable even though the purpose is valid. It is the act of employing false statements, falsehood, defamation and other misrepresentations. 3. Use of abusive and threatening language towards patrons of the place or business; 4. Use of violence and intimidation; 5. Vandalisms and other acts of a less terroristic nature which causes physical discomfort to the employer’s customers. d. Role of Peace Officers During Strike and Picketing Escorting Article 264 (f) of the Labor Code of the Philippines provides that: “ No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or 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 the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal orders.” The involvement of the police during strikes, lockouts or labor disputes in general shall be limited to the maintenance of the peace and order, enforcement of laws and legal orders of duly constituted authorities and the performance of specific functions as may be provided by law. Also, police officers; 1. Should be in uniform with proper name cloth at all times 2. Shall observe strict neutrality in dealings with both parties 3. Shall not be stationed in the picket/confrontation line 4. Shall maintain themselves outside a 50 meter radius from the picket/confrontation or in such public thoroughfare for the purpose of insuring free flow of traffic Arrest and Detention of law violators Article 266. Requirement for arrest and detention. Except on grounds of national security and public peace or in case of commission of a crime, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Secretary of Labor. E. EMPLOYER LOCKOUT a. Basis, Limitation, Definition Article 278 (B) of the Labor Code provides that: Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes Art. 219 (P) defines Lockout as: Any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. Basis for Lockouts – Article 278 (c) In case 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 Ministry at least 30 day 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 or recognized 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 Union Busting – a form of unfair labor practice, involving the dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, where the existence of the union is threatened. b. Procedural Requirements Article. 264. Prohibited activities. – (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. (d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or 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 the strikers. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal order. Article 278 (e) During the cooling-off period, it shall be the duty of the Ministry 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 Ministry 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 Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. Requisites for a valid/legal lockout: 1. It must be based on a valid and factual ground; 2. CBA deadlock 3. Unfair labor practice 4. A notice of lockout must be filed with the NCMB-DOLE; 5. A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior to the taking of the lockout vote by secret balloting, informing said office of the decision to conduct a lockout vote, and the date, place, and time thereof; 6. A lockout vote must be taken where a majority of the members 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 the purpose, must approve it; 7. A lockout vote report should be submitted to the NCMB-DOLE at least seven (7) days before the intended date of the lockout; 8. The cooling-off period of 15 days, in case of unfair labor practices of the labor organization, or 30 days, in case of collective bargaining deadlock, should be fully observed; and 9. The 7-day waiting period/lockout ban reckoned after the submission of the lockout vote report to the NCMB-DOLE should also be fully observed in all cases. Philtread Tire and Rubber Corporation v. NLRC, G.R. No. 102185, February 15, 1993 Facts: ADFLO filed a Notice of Strike with the National Conciliation and Mediation Board against Philthread. Philthread, reacting to the Notice of Strike, filed a Notice of Lockout and also sought to terminate all union officer-employees. On a later date, they announced that all union members would not be allowed to work and enter the company premises. The Union filed a letter-petition to the secretary of labor and employment. Acting on the petition, the Secretary ordered that Philtread should reinstate all the union member-employees. Philtread partially complied with the order, accepting all the union members, except the 36 members facing libel charges. Eventually, NLRC resolved the dispute between Philtread and the union by awarding back wages from the time when all workers were supposed to be reinstated, until the workers themselves chose to sever their relations with Philtread. Issue: Whether or not NLRC validly ruled in this matter. Ruling: Yes, there is no procedural lapse by Philtread, and the lockout was held to be valid. When the right to return to work was obtained by the workers, the same right could be waived by them.