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. [264] 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 [265] – 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.