Labor Review 2021

Atty. Paciano F. Fallar Jr.

SSCR-CoL

SOME NOTES ON
STRIKES & LOCKOUTS

A. Employee Concerted Activities

Art. XIII, Sec. 3 of the Constitution provides that the State " 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."

Art. 278 (b) of the Labor Code states: "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.

B. Kinds of Concerted Activities

Strike

Art. 219 (o) of the Labor Code defines a ""strike" as "any temporary stoppage of work
by the concerted action of employees as a result of an industrial or labor dispute".

A strike has been broadly defined as comprising not only concerted work stoppages,
but also slowdowns, mass leaves, sit downs, attempts to damage, destroy or sabotage
plant equipment and facilities and similar activities . 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 to be controlling (Solidbank vs Gamier , GR No. 159460, 15 November 2010).

From the definitions, one easily reads the elements of a legal strike:

a. Existence of employer-employee relationship

b. Existence of a labor dispute ( any controversy involving terms and conditions of
employment)
c. Temporary stoppage of work.

Thus, the political activities welgang bayan nor a tigil pasada should not constitute a
strike in the absence of a labor dispute.

But employees who have no labor dispute with their employer but who, on a day they
are scheduled to work, refuse to work and instead join a welga ng bayan , were held to
have committed an illegal work stoppage. Where there is no showing that the
employees notified their employer of their intention, or that they were allowed by the
latter, to join the welga ng bayan, their work stoppage is beyond legal protection (Bilflex
Phil. Labor Union vs Filflex, GR No.155679, 19 December 2006)

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What the employees could have done, to in order to exercise their freedom of
expression, freedom of assembly or freedom to petition the government for redress of
grievances while remaining within the realm of the law's protection, is to secure an
approval for a leave of absence for such reason. Or, join the welgang bayan on their
rest days or outside their work schedules.

While constitutionality protected, the law puts limitations on the right to strike inasmuch
as strikes cause disparity effects not only on the relationship between labor and
management but also on the general peace and progress of society ( Santa Rosa Coca
Cola Plant Employees Union vs Coca Cola, GR No.164302, 24 January 2007).

Thus, the union’s concerted violation of the hotel's Grooming Standards which resulted
in the temporary cessation and disruption of the hotels operations was judged an
unprotected act and was considered an illegal strike. (NUWRAIN vs CA, GR No. 163942,
11 November 2008)

Picketing

A strike is usually accompanied by picketing by the striking employees outside of the

company compound. While a strike focuses on stoppage of work, picketing focuses on
publicizing the labor dispute and its incidents to inform the public of what is happening
in the company struck against. A picket simply means to march to and from the
employers 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 the actual stoppage of work. (Phimco Industries vs Phimco Ind. Labor Assn,
GR No. 170830, 11August 2010).

Like strike, the right to picket is also limited by law. Article 264(e) of the Labor Code
states that "no person engaged in picketing shall commit any act of violence, coercion
or intimidation or obstruct the free ingress to or egress from the employer's
premises for lawful purposes, or obstruct public thoroughfares".

Protected picketing does not extend to blocking ingress to and egress from the
company premises. That the picket was moving, was peaceful, and was not attended by
actual violence may not free it from taints of illegality if the picket effectively blocked
entry to and exit from the company premises. (Phimco Industries vs Phimco Ind.
Labor Assn, GR No. 170830, 11August 2010).

Permissible activities of the picketing workers do not include obstruction of access of

customers (Sukhothai Cuisine vs CA, GR No. 150437, 17 July 2006)

Slowdown

A slowdown is a strike on the installment plan; as a willful reduction in the rate of

work by concerted action of workers for the purpose of restricting the output of
the employer, in relation to a labor dispute; as an activity by which workers, without
a complete stoppage of work, retard production or their performance of duties and
functions to compel management to grant their demands. A 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 employers damage, to do other work; in other
words, they work on their own terms.(Interphil Laboratories Employees Union vs
Interphil,GR No. 142842, 19 December 2001).

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A overtime boycott by the union, in violation of the established work schedule,
constitutes a slow down. (Interphil Laboratories Employees Union vs Interphil,GR No.
142842, 19 December 2001).

Mass leave

The phrase “mass leave” may refer to a simultaneous availment of authorized leave
benefits by a large number of employees in a company. (Naranjo vs Biomedica Health,
GR No. 193789, 19 September 2012). When only five (5) employees went on authorized
or justified leaves of absence, the same does not constitute a strike.

C. Kinds of Strike (Based on Allowed Ground)

There are only two main grounds for a lawful strike, ULP and CBA deadlock. Outside
of these two, any other ground would not be a valid cause for a strike.

A valid and legal strike must be based on strikeable grounds. If it is based on a non-
strikeable ground, it is generally deemed an illegal strike unless good faith is shown
which would exculpate the employees from termination.

 ULP Strike

A ULP strike is one based on any of the employer ULP listed under Art. 259 of the
Labor Code

As a general rule, where a union believes that an employer committed ULP and the
surrounding circumstances warranted such belief in good faith, the resulting strike may
be considered legal although , subsequently, such allegations of unfair labor practices
were found to be groundless (Hotel Enterprises of the Phil vs SAMASAN-NUHWRAIN, GR
No. 16575,05 June 2009).

In one case, it was held that ULP is committed when an employer proceeds to
negotiate with a splinter union despite the existence of its valid CBA with the duly
certified and exclusive bargaining agent ( Employees Union of Bayer vs Bayer
Philippines ,GR No. 162943, 06 December 2010). This is ULP because there is violation of
the duty to bargainin good faith

A strike was upheld as a legitimate measure of self-defense and protection against the
company's union-busting activities (Davao Free Workers Front vs CIR, GR No. L-29356,
31 October 1974 )

For CBA violation to be ULP (and a ground for strike) , the same must be "gross" which
means "flagrant and or /malicious refusal to company with the economic provisions"
(Art. 274, 1st par., Labor Code). "Economic provisions" would refer to stipulations with
monetary value ( salaries, allowances, premium pay; bonuses; leave credits; medical
and hospitalization coverage; profit-sharing; retirement; signing bonus, etc.).

The union's demand for the company to stop the outsourcing of functions
discharged by regular workers, and the implementation of service allowance to
employees assigned outside the plant, are violations of the CBA. The union has
the right to demand a grievance meeting, and the management's decision to reject
grievance was a violation of the CBA. While the end result of the demands may be

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economic in nature, the notice of strike was not based on economic demands as
understood in the law on strikes but on violation of the CBA. What was involved is ULP
strike, not an economic strike (Master Iron Labor Union v NLRC 219 SCRA 17 (1993) GR
No. 92009, 17 February 1993). More precisely, the ULP here is violation of the duty to
bargain which includes obliges both parties to observe in god faith the grievance
machinery.

 Bargaining Deadlock
(Economic strike)

An economic strike is defined as one which is to force wage or other concessions from
the employer which it is not required by law to grant and involves issues relating to
demands for higher wages, higher pension or overtime rates, pensions, profit sharing,
shorter working hours, fewer work days for the same pay, elimination of night work,
lower retirement age, etc.(Master Iron Labor Union v NLRC 219 SCRA 17 (1993) GR No.
92009, 17 February 1993). Note that a strike premised on violation of the CBA which
may have economic implications ( e.g., non-payment of allowance) is not an economic
strike because what is sought is enforcement of a CBA right and not a concession that
is yet to be given by the employer.

An economic strike could only be possible during the period of the CBA negotiation or
re-negotiation. A "no strike no lockout clause" in the CBA would lawfully prohibit such
strike.

A "no strike, no lockout provision in the CBA is a valid stipulation but it only applies to
economic strikes ( A. Soriano Aviation vs Employees Assn, GR No. 166879, 14 August
2009). It is also personal undertaking of the union which negotiated the CBA, and does
not bind a successor bargaining agent.

D. Who may declare a Strike

For ULP strikes , any legitimate labor organization may stage a strike. A strike filed
by an illegitimate labor organization is illegal due to want of legal personality. (Visayas
Community Medical Center vs Yballe, GR No. 196156, 15 January 2014)

Pending approval of a union's registration, a group of employees may only file a

complaint for ULP with the Labor Arbiter's office.

For economic strike, only the certified bargaining agent may file a notice of strike on
such ground. Thus, the mandatory notice of strike and the conduct of the strike-vote
report were deemed ineffective for having been filed and conducted before the
employees association gained legal personality (Masdala Multipurpose & Livelihood
Coop vs KLLMS , GR No.s191138- 39, 19 October 2011 ).

E. Non-Strikeable Issues

Since only two grounds (ULP and CBA deadlock) are allowed as valid grounds, any
other ground should be denied the status of a lawful reason for a strike.

By express provision of the Wage Rationalization Act, salary distortion disputes

should be resolved or voluntary negotiation or arbitration, and not by strikes, lockouts,
or other concerted activities of the employees or management ( Ilaw at Buklod ng
Manggagawa vs NLRC, GR No. 91980, 27 June 1991).

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And because of the absence of employer-employee relationship , intra-union and
inter-union disputes are not grounds for a strike (Art. 278 [b], Labor Code ; National
Union of Workers in Hotels v NLRC , GR No. 125561, 06 March 1998).

Labor Issues submitted for mediation/arbitration cannot be valid grounds for a

strike (Art. 279, 2nd par, Labor Code). And no strike or lockout shall be declared after
assumption of jurisdiction by the President or the DOLE Secretary (ibid.). An
assumption order shall have the effect of automatically enjoining the intended or
impending strike. (Telefunken Semiconductors Employees Union-FFW v. Court of
Appeals G.R. Nos. 143013-14, 18 December 2000). A strike that is undertaken despite the
issuance by the Secretary of Labor of an assumption order and/or certification is a
prohibited activity and thus illegal (Solidbank vs Gamier , GR No. 159460, 15 November
2010).

And when the NCMB declares a notice of strike as "appropriate for preventive
mediation", the effect of that declaration is to drop the case from the docket of notice
of strikes, as provided in Rule 41 of the NCMB Rules, as if there was no notice of strike.
During the pendency of preventive mediation proceedings no strike could be legally
declared (PAL vs Secretary of Labor, GR No. 88210, 23 January 1991).

Strikes held in violation of the terms contained in a CBA are illegal especially when they
provide for conclusive arbitration clauses. These agreements must be strictly adhered to
and respected if their ends have to be achieved (San Miguel Corp vs NLRC, GR No.
119293, 10 June 2003).

F. Procedures

Labor Code (Art. 278 , pars. b-1)

A strike , even if based on lawful grounds, may be declared illegal if it is staged in

violation of the procedures laid down by the law. The Labor Code procedures are
mandatory, and non-compliance therewith renders the strike illegal.

 Cooling off period

The union must file a Notice of Strike (NOS) with the National Conciliation and
Mediation Board (NCMB). The employer must be copy furnished the NOS.

The NOS must be filed 30 days prior to the strike date (in case of CBA deadlock strike)
or 15 days (in case of ULP strike). This is known as the "cooling off period" .

 Strike vote

The decision to stage a strike must be supported by a majority of the members of the
union, in secret ballot, with 24-hour notice to the NCMB, The strike vote could be
conducted prior to or subsequent to the filing of the NOS.

 Strike ban

The strike vote report must be submitted to the NCMB at least seven (7) days before
the intended strike date, subject to the cooling off period.

It is my opinion that the 7-day strike ban period part is included in the 15/30-day cooling
off period, since the "strike date" is fixed either on the 15h day or 30th day from the filing

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of the NOS. It is only when the strike vote report is submitted less than 7 days from the
15th or 30th day that the 'strike date" is moved further from the date stated in the NOS.

In case of "union busting" or when the dismissal of the union officers threatens the
existence of the union itself, the cooling off period does not apply "and the union may
take immediate action". Nevertheless, the strike vote and the 7-days strike ban must still
be complied with.

This requirement should be observed to give the opportunity to verify whether the
projected strike really carries the approval of the majority of the union members. (Piltel
Corp vs PILTEA, GR No. 160058, 22 June 2007).

In this case, the Supreme Court ruled that to constitute union busting under Article
263 of the Labor Code, there must be:

1) a dismissal from employment of union officers duly elected in accordance with the
union constitution and by-laws; and ,

2) the existence of the union must be threatened by such dismissal.

In the case at bar, the second notice of strike filed by the Union merely assailed the
mass promotion of its officers and members during the CBA negotiations. The Supreme
Court held that promotion is different from dismissal. It must be noted though that
promotion, if it is to a supervisory or managerial position and if accepted by the
employee, would disqualify the latter not only from union membership but also from
being an officer of the union.

CBA Procedures

In a case involving the inclusion of certain employees in the company's redundancy

program, the union's decision to sidestep the 3rd phase of the grievance machinery,
and instead directly filing a notice of strike (NOS) with the NCMB, is a violation of the
CBA. The union's failure to exhaust all steps in the grievance machinery and voluntary
arbitration provisions renders the NOS subject to dismissal ( San Miguel Corporation vs
NLRC, GR No. 99266, 02 March 1999). A strike staged in violation of CBA provision
mandating grievance procedures would be illegal (United Seamen's Union of the Phil., vs
Davao Shipowner's Association, GR No. L-187778, 31 August 1967).

An economic strike staged in violation of the "no strike no lock out" clause is illegal ( A.
Soriano Aviation vs Employees Assn, GR No. 166879, 14 August 2009). In case there is a
change in the bargaining agent, the new agent is just as bound by the CBA as the old
agent except for purely personal undertakings like the "no strike no lock out clause"
(Benguet Consolidated Mining vs. BCM Employees Union , G.R. No. L-24711, 30 April 1968).

The union's demand for the company to stop the outsourcing of functions
discharged by regular workers, and the implementation of service allowance to
employees assigned outside the plant, are violations of the CBA. The union has
the right to demand a grievance meeting, and the management's decision to reject
grievance was a violation of the CBA. While the end result of the demands may be
economic in nature, the notice of strike was not based on economic demands as
understood in the law on strikes but on violation of the CBA. What was involved is ULP
strike, not an economic strike (Master Iron Labor Union v NLRC 219 SCRA 17 (1993) GR
No. 92009, 17 February 1993). The ULP is violation of the duty to bargain, which includes
the duty to adhere to the grievance process.

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G. Assumption of Jurisdiction (Art.278 [g], Labor Code)

It has been opined that the Secretary Of DOLE's assumption of jurisdiction over a labor
dispute is meant to be used sparingly and only if the national interest demands it.
Indeed, the Supreme Court has consistently ruled that the secretary's assumption of
Jurisdiction is intended not to interfere with or impede workers' rights, but to obtain
speedy settlement of labor disputes and only if national interests will be affected (see
Concurring Opinion of J. Panganiban in Phimco industries vs Sec, Brillantes, GR No. 120751,
17 March 1999)

The Supreme Court has sanctioned assumption of jurisdiction in disputes involving

companies engaged in the manufacture of drugs, tire production, automotive assembly,
export of goods, and operation of domestic airlines and schools. It has reversed or
disapproved of the assumption orders in disputes involving companies engaged in
match production and publication of telephone directories (see ibid.,)
Even for labor, it is not always beneficial to allow the secretary's intervention in a labor
dispute under Art. 263. Although the intention may be to find a balance between the
demands of labor and the resources of management, intervention from the state and the
derogation of the right to strike are not always the solutions to the just demands of
labor. More often than not, the intervention is more to the advantage of management,
which would not incur overhead expenses that would otherwise be wasted during a
work stoppage. For the same reason, it does not necessarily follow that intervention
works for the protection of labor (ibid.) .
Even without compulsory arbitration, other remedies for resolving their labor disputes
are still available to labor and management. Striking employees can file illegal dismissal
cases if they are dismissed without cause. On the other hand, management can dismiss
employees engaged in illegal strikes, or it can negotiate with those involved in legal
strikes (ibid.) .

An assumption of jurisdiction by the Secretary of DOLE or certification to the NLRC

shall have the effect of automatically enjoining the intended or impending strike or
lockout as specified in the assumption or certification order. If one has already taken
place at the time of assumption or certification, all striking or locked out employees shall
immediately return-to-work and the employer shall immediately resume operations and
readmit all workers.

Defiance of an assumption order renders any strike or lock out illegal ( Univ. of San
Agustin Employees Union vs CA, GR No. 169632, 28 March 2006). Not only a strike or
temporary stoppage of work is enjoined; an AJO also covers pickets and other
concerted actions which have the tendency to worsen the industrial dispute ( Toyota
Motors Phils. Workers Assn. vs NLRC, GR No. 158786& 158789, 19 October 2007).

An assumption or certification order is immediately executory and a writ of execution is

not necessary (Telefunken Semiconductors Employees Union vs CA. GR Nos. 14313-14,
18 December 2000). It must be complied, even pending any petition questioning its
validity (Philcom Employees Union vs Philcom, GR No. 144315, 17 July 2006).

The tenor of precedents indicates an almost instantaneous or automatic compliance for

a strike once an assumption of jurisdiction order (AJO) is received ( Univ. of San Agustin
Employees Union vs CA, GR No. 169632, 28 March 2006).

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The term "under the same terms and conditions of employment" means actual , not
payroll, reinstatement of the workers (University of Immaculate Concepcion vs Sec. of
Labor GR No. 151379, 14 January 2005).

The employer does not have the discretion of determining who among the striking
employees could be admitted back to work, the same being under the authority of the
Secretary of DOLE (YSS Employees Union vs YSS Laboratories, GR No. 155125, 04
December 2009).

If the strike is illegal because the strikers defied the return-to-work (TRTW) order, the
strikers may be deemed to have lost their employment status (St. Scholastica's College vs
Torres, GR No. 100158, 29 June 1992). The dismissed employee however may adduce
evidence that there was no deliberate defiance, as when they did not have sufficient
time to immediately report back for work as they had gone to the province in the
meantime (BLTB vs NLRC, GR No. 101858, 21 August 1992) or when there are physical
or legal impossibility which would excuse non-compliance (e.g., employee was on
maternity leave, was sick/injured/hospitalized, was not in the country, or even detained
by authorities).

The Secretary of Labor has been given by the Supreme Court sufficient authority to
exercise discretion in imposing the proper sanction in cases of defiance of RTW orders.

 Extent of authority of the Secretary to resolve labor dispute

The DOLE Secretary has “great breadth of discretion" in order to find a solution to a
labor dispute" (ibid.) The most obvious of these powers is the automatic enjoinment
of an impending strike or lockout or the lifting thereof if one has already taken
place. Assumption of Jurisdiction always coexists with an order for workers to return to
work immediately and for employers to readmit all, workers under the same terms and
conditions prevailing before the strike or lockout. Defiance of a return-to-,work order
produces forfeiture of 'workers' employment. Thus, not only does it diminish the right of
labor to strike; it also limits the prerogatives of management to hire workers under its
own terms and conditions (ibid) .
The Secretary is conferred other powers, including jurisdiction over all incidents arising
from the labor dispute, in order to avoid the undesirable result of diametrically opposed
rulings being issued by the secretary and the labor arbiter. These powers comprehend
those that the secretary needs to dispose of the primary dispute effectively and
efficiently(ibid.) .
The almost unlimited breadth of such powers calls for caution on the part of its
possessor and strict scrutiny of the excesses of government on the part of the judiciary.
 Plenary authority

The Labor Secretary’s authority to assume jurisdiction over a labor dispute must include
and extend to all questions and controversies arising therefrom, including cases over
which the labor arbiter has exclusive jurisdiction ( Interphil Laboratories Employees
Union vs Interphil,GR No. 142842, 19 December 2001).

It has been declared that Article 278 (g) of the Labor Code was meant to make both the
Secretary (or the various regional directors) and the labor arbiters share jurisdiction,
subject to certain conditions. Otherwise, the Secretary would not be able to effectively
and efficiently dispose of the primary dispute. To hold the contrary may even lead to the

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absurd and undesirable result wherein the Secretary and the labor arbiter concerned
may have diametrically opposed rulings (ibid).

 Legality of strike

The Secretary properly took cognizance of the issue on the legality of the strike which is
not merely an issue incidental to, but is essentially involved in the labor dispute itself in
which he assumed jurisdiction (Philcom Employees Union vs Philcom, GR No.
144315,17 July 2006).

 Resolve economic issues

The Secretary of DOLE could resolve economic issues of the CBA such as wage
increases , transportation allowance, 14th month pay, seniority pay, separation pay,
sigining bonus, salary loan for educational purposes, and the effectivity of the new
CBA.

The Supreme Court nonetheless could modify such arbitral awards (Nissan Motors vs
Secretary, GR No. 158190-91,21 June 2006).

 Legality of dismissal

As the term assume jurisdiction connotes, the intent of the law is to give the Labor
Secretary full authority to resolve all matters within the dispute that gave rise to or which
arose out of the strike or lockout; it includes and extends to all questions and
controversies arising from or related to the dispute, including cases over which the labor
arbiter has exclusive jurisdiction such as illegal termination ( Bagong Pagkakaisa ng
Manggagawas sa Triumph vs Sec. of Labor, GR No. 167401, 05 July 2010).

 Wage increases

Where an employer refuses to bargain, without valid and sufficient cause, the Secretary
of Labor may, in the exercise of his powers under Article 278( i) of the Labor Code to
decide and resolve labor disputes, properly grant wage increases. (San Pedro Hospital of
Digos vs Sec. of Labor, GR No.104624, 11 October 1996)

 Limitations- Use of confidential information

The Supreme Court disallowed the Secretary of DOLE , in setting the wage increases,
from utilizing the confidential position supposedly disclosed by the management to the
NCMB Administrator. The reason for this is simple. Article 239 of the Labor Code
prohibits the use in evidence of confidential information given during conciliation
proceedings (Nissan Motors vs Secretary, GR No. 158190-91,21 June 2006).

Conduct during strike

A strike may be based on a lawful ground, and complies with the procedures set down
by the labor Code and the CBA. But it may still be declared illegal if illegal acts are
committed during the conduct of the strike.

A specific prohibition is found in Art. 279 (e) of the Labor Code which states: "No person
engaged in picketing shall commit any act of violence, coercion or intimidation or

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obstruct the free ingress to or egress from the employer’s premises for lawful
purposes, or obstruct public thoroughfares".

Photographs, videos, and affidavits of witnesses could constitute evidence of illegal acts
during a strike or picket.

What constitutes unlawful intimidation depends on the totality of the

circumstances. Force threatened is the equivalent of force exercised. There may be
unlawful intimidation without direct threats or overt acts of violence. Words or
acts which are calculated and intended to cause an ordinary person to fear an
injury to his person, business or property are equivalent to threats. The manner in
which the union officers and members conducted the picket in the present case had
created such an intimidating atmosphere that non-striking employees and even
company vehicles did not dare cross the picket line, even with police intervention.
(Phimco Industries vs Phimco Ind. Labor Assn, GR No. 170830, 11August 2010).

A union has no right to prevent employees of another company from getting in and out
of its rented premises; such would be an unlawful act against innocent bystanders
(Liwayway Publications vs Permanent Concrete Workers Union , GR No. L-25003, 23
October 1981).

Commission of crimes and other unlawful acts, like shouting bakero (fool) at the
Japanese executives and bad mouthing people getting into company premises, are
likewise illegal acts. (Toyota Motors Phils. Workers Assn. vs NLRC, GR No. 158786&
158789, 19 October 2007).

The dismissal of the criminal case against the employee accused of throwing a stone on
a running company vehicle , which rammed into a nearby beauty parlor killing three
persons, does not preclude the company from terminating his services for commission
of an illegal act during a strike ( Chua vs NLRC, GR No. 105775, 08 February 1993).

Commission of unlawful acts during a strike is a ground for disciplinary sanction,

including dismissal.

H. Employment Status of Strikers

& Entitlement to Salaries

 Employment status

A strike involves temporary stoppage of work. Hence, the employer-employee relations

remains. But certain statutory obligations (e.g., remittance of SSS contributions) will
necessarily be suspended.               

 General rule on salaries

Since there is work stoppage, the "no work no pay " principle applies (C. Alcantara &
Sons vs CA, GR No. 155109, 14 March 2012). The rule is the same whether the strike is
later on judged either legal or illegal.

What happens to the period in which the employee is on strike? Would it be considered
in the computation of the period for purposes of probation, service incentive leave,
separation benefits, and retirement ? My opinion is, they should not be counted since
there is no actual service rendered.

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  Exceptions

Jurisprudential law, however, recognizes several exceptions to the "no backwages rule,"
to wit:

a) when the employees were illegally locked to thus compel them to stage a
strike;

b) when the employer is guilty of the grossest form of ULP;

c) when the employer committed discrimination in the rehiring of strikers by refusing

to readmit those against whom there were pending criminal cases while admitting non-
strikers who were also criminally charged in court;

d) or when the workers who staged a voluntary ULP strike offered to return to work
unconditionally but the employer refused to reinstate them ( Philippine Diamond Hotel
vs Manila Diamond Hotel Employees Union, GR No. 15807, 30 June 2006).
Union officers and members, who were suspended for eight (8) months in accordance
with the Secretary of Labor's order but were not thereafter returned to service by the
management, were judged entitled to immediate reinstatement and payment of
backwages and other accrued benefits counted from the time they have served their
respective suspensions until actual reinstatement (Philippine Airlines vs Sec of Labor, GR
No. 119360, 10 October 1997)

I. Illegal Strikes   

The Supreme Court (Toyota Motors Phil. Employees Association, et al. vs. NLRC et al., GR
No. 158786, 19 October 2007). and Philippine labor law commentators cite Teller's lists
six (6) categories of an illegal strike, viz.:

o when it is contrary to a specific prohibitionof law, such as strike by employees

performing governmental functions;

o when it violates a specific requirement of law, such as Article 278 of the

Labor Code on the requisites of a valid strike;

o when it is declared for an unlawful purpose, such as inducing the employer to

commit an unfair labor practice against non-union employees;

o when it employs unlawful means in the pursuit of its objective, such as a

widespread terrorism of non-strikers (for example, prohibited acts under Art.
279 [e] of the Labor Code);

o when it is declared in violation of an existing injunction , such as injunction,

prohibition, or order issued by the DOLE Secretary and the NLRC under Art.
278 of the Labor Code; or

o when it is contrary to an existing agreement, such as a no-strike clause or

conclusive arbitration clause.

 Not based on ULP or Bargaining deadlock

The union/employer may not file a notice based on grounds other than ULP and
bargaining deadlock Violations of CBA, except flagrant and/or malicious refusal to

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comply with its economic provisions, shall not be considered unfair labor practice and
shall not be strikeable and no strike or lockout may be declared on grounds involving
inter-union and internal union disputes or on issues brought to voluntary or compulsory
arbitration including legislated wage orders and labor standard cases.

However, if improvidently filed and it appears on the face of the notice that the issues
raised are non-strikeable or the real issues discovered during conciliation proceedings
are not proper subjects of a Notice of Strike or Lockout, the NCMB Regional Branch
shall dismiss motupropio the notice without prejudice to further conciliation, or upon the
request of either or both parties, in which case, the Notice of Strike or Lockout is treated
as a Preventive Mediation Case (NCMB Primer on Strike, Picketing and Lockout)
 Undertaken not by certified bargaining agent or legitimate labor
organization

For ULP strikes , any legitimate labor organization may stage a strike. A strike filed
by an illegitimate labor organization is illegal due to want of legal personality. (Visayas
Community MediCal Center vs Yballe, GR No. 196156, 15 January 2014)

For economic strike, only the certified bargaining agent may file a notice of strike on
such ground. The mandatory notice of strike and the conduct of the strike-vote report
were deemed ineffective for having been filed and conducted before the employees
association gained legal personality (Masdala Multipurpose & Livelihood Coop vs KLLMS
, GR No.s191138- 39, 19 October 2011).

 Violation of CBA grievance procedure

Strikes held in violation of the terms contained in a CBA are illegal especially when they
provide for conclusive arbitration clauses. These agreements must be strictly adhered to
and respected if their ends have to be achieved (San Miguel Corp vs NLRC, GR No.
119293, 10 June 2003) .

 No strike, no lockout clause

An economic strike staged in violation of a “no strike, no lockout” provision in the CBA
is illegal ( A Soriano Aviation vs. Employees Association, GR No. 166879, 14 Aug 2009)

 Violation of Assumption Order:

A return-to-work directive contained in an assumption of jurisdiction order must be

promptly complied with. The law is is explicit that if a strike has already taken place at
the time of assumption of jurisdiction or certification, all striking or locked out employees
shall immediately return to work and the employer shall immediately resume operations
and readmit all workers under the same terms and conditions prevailing before the
strike or lock-out. The statutory phrase “immediately return to work” has never meant
“within twenty four (24) hours.” The tenor of judicial precedents indicates an almost
instantaneous or automatic compliance for a striker to return to work once an
assumption of jurisdiction order has been duly served (Univ. of San Agustin Employees
Union vs. CA, GR No. 169632, 28 March 2006).

 Good faith strike

The prevailing doctrine states that a union's good faith belief in the employer's
commission of ULP will not save the strike from being declared illegal, if it disregarded

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the mandatory procedures of the Labor Code like the cooling off period (Piltel vs PILTEA,
GR No. 160058,22 June 2007).

 Reinstatement

Even if a strike is declared illegal, the striking workers do not necessarily lose their
employment. Only those union officers who knowingly participate in the illegal strike,
and union members who committed illegal acts durring the stike, may be declared to
have lost their employment. Otherwise, a striking employee has the right to be
reinstated but without backwages.

Illegal acts during strike

A specific prohibition is found in Art. 279 (e) of the Labor Code, which states:

"No person engaged in picketing shall commit any act of violence, coercion or
intimidation or obstruct the free ingress to or egress from the employer’s premises
for lawful purposes, or obstruct public thoroughfares".

Photographs, videos, and affidavits of witnesses could constitute evidence of illegal acts
during a strike or picket.

What constitutes unlawful intimidation depends on the totality of the

circumstances. Force threatened is the equivalent of force exercised. There may be
unlawful intimidation without direct threats or overt acts of violence. Words or
acts which are calculated and intended to cause an ordinary person to fear an
injury to his person, business or property are equivalent to threats. The manner in
which the respondent union officers and members conducted the picket in the present
case had created such an intimidating atmosphere that non-striking employees and
even company vehicles did not dare cross the picket line, even with police intervention.
(Phimco Industries vs Phimco Ind. Labor Assn, GR No. 170830, 11August 2010).

A union has no right to prevent employees of another company from getting in and out
of its rented premises; such would be an unlawful act against innocent bystanders
(Liwayway Publications vs Permanent Concrete Workers Union , GR No. L-25003, 23
October 1981).

Commission of crimes and other unlawful acts, like shouting bakero (fool) at the
Japanese executives and bad mouting people getting into company premsies, are
likewise illegal acts. (Toyota Motors Phils. Workers Assn. vs NLRC, GR No. 158786&
158789, 19 October 2007).

The dismissal of the criminal case against the employee accused of throwing a stone on
a running company vehicle , which rammed into a nearby beauty parlor killing three
persons, does not preclude the company from termining his services for commission
of an illegal act during a strike ( Chua vs NLRC, GR No. 105775, 08 February 1993).

Commission of unlawful acts during a strike is a ground for disciplinary sanction,

including dismissal.

Innocent Bystander

Innocent bystanders are the 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, 05 August
1999). Is a service contractor , accused by a union of being a labor-only contractor, an
innocent bystander?

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While peaceful picketing is entitled to protection as an exercise of free speech, the
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 it 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. (ibid.)

A picketing labor union has no right to prevent employees of another company from
getting in and out of its rented premises. Otherwise, it will be held liable for damages for
its acts against an innocent by-stander (Liwayway Publishing vs Permanent Concrete
Workers Union, GR No.L- 25003, 23 October 1981).

An innocent by stander will be entiled to an injunction from the courts.

Liability of Striking employees (Illegal strike)

 Termination of union officers vis-a-vis union members

A distinction exists between the ordinary union member's liability for illegal strike and
that of the union officers who participated in it. The ordinary worker cannot be
terminated for merely participating in the strike. There must be proof that he committed
illegal acts during its conduct. On the other hand, a union officer can be terminated
upon mere proof that he knowingly participated in the illegal strike. Still, the participating
union officers have to be properly identified. (Fadrequelan vs Monterey Food Corp., GR
No. 178409, 08 June 2011).

 Defiance of RTW Order

Striking employees who defy the RTW of the Secretary of Labor, regardless of whether
they are officers or mere members of the union, may be deemed to have lost their
employment status. (National Federation of Labor vs NLRC, GR No. 113466, 15 December
1997). The dismissed emplyee however may adduce evidence that there was no
deliberate defiance, as when they did not have sufficient time to immediately report
back for work as they had gone to the province in the meantime ( BLTB vs NLRC, GR No.
101858, 21 August 1992) or wthen there are physical or legal impossibility which would
excuse non-complaince (eg., employee was on maternity leave, was
sick/injured/hospitalized, was not in the country, or even detained by authorities).

Is the company required to comply with the two-notice and hearing rule before it
declares the non-returning strikers to have lost ther employment status? My opinion is
that, upon proof that the strikers had notice of the RTW and they failed to report within
the deadline given, the company may classify the status of non-returnings strikers as
having impliedly resigned from employment. Thus, the due process requirements do
not find application.

 Suspension instead of termination

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When both the union and the management are equally guilty of exacerbating the
industrial dispute, the penalty imposed on striking empoyees otherwise guilty of
participating in an illegal strike or committing illegal acts may be reduced from
termination to suspension by the Secretary of DOLE or the Supreme Court ( Nissan
Motors V Secretary of Labor, GR Nos. 158190-91, 21 June 2006).

When the company terminated en masse the employment of 183 union officers and
members of PALEA on 06 July 1994 in violation of the order of the Secretary enjoining
the parties to cease and desist from committing any and all acts that might exacerbate
the situation, the Supreme Court decided not to mete upon the concerned members and
officers of the union he capital punishment of dismissal from office, notwithstanding the
law's sanction for such a consequence. The Supreme Court invoked its judicial
prerogative to resolve disputes in a way to render to each interested party the most
judicious solution, and in the ultimate scheme, a resolution of a dispute tending to
preserve the greater order of society. The peculiar nature of the judicial treatment of
labor disputes urges the arbiter of the issues involved to maintain a careful eye, if not a
caring hand, to the interests of the parties, such that industrial peace and labor-
management stability is preserved (Philippine Airlines vs Sec. of Labor, GR No. 119360, 10
October 1997).

Liability of Union ( Damages)

 Need of proof of actual damages

The alleged losses suffered by the company , on the mere basis of the 2-months that its
operations were paralyzed, were never substantially proved. No hearing was
conducted and no real evidence was ever presented on the matter. The only thing that
appears on record is an unsigned summary of actual and estimated losses, certified by
a certified public accountant that he had examined and reviewed the same (City Fair
Corp. vs. NLRC, GR No. 95711, 21 April 1995).

 Nominal damages
In order that damages may be recovered, the best evidence obtainable by the injured
party must be presented. Actual or compensatory damages cannot be presumed, but
must be duly proved, and so proved with reasonable degree of certainty. A court cannot
rely on speculation, conjecture or guesswork as to the fact and amount of damages, but
must depend upon competent proof that they have been suffered and on evidence of
the actual amount thereof. If the proof is flimsy and insubstantial, no damages will be
awarded.
However, the strike dragged on for nearly 50 days, paralyzing respondents operations;
thus, there is no room for doubt that some species of injury was caused to private
respondent. In the absence of competent proof on the actual damages suffered,
private respondent is entitled to nominal damages which, as the law says, is
adjudicated in order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated and recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered. The amount
of P300,00.00 was deemed just and reasonable under the circumstances. (National
Federation of Labor vs NLRC, GR No. 113466, 15 December 1997).

 Contempt of counsel

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The Supreme Court sustained the Court of Appeal’s decision to penalize the union's
lawyer for indirect contempt for his uncalled-for and disrespectful remarks directed
towards the appellate justices (Nissan Motors V Secretary of Labor, GR Nos. 158190-91,
21 June 2006)

 Hunger strike

In another case, the Supreme Court admonished the striking workers who camped in
front of the Supreme Court Building and commenced a hunger strike saying "the Court
will not hesitate in future similar situations to apply the full force of the law and punish
for contempt those who attempt to pressure the Court into acting one way or the other in
any case pending before it [because] grievances, if any, must be ventilated through the
proper channels, i.e., through appropriate petitions, motions or other pleadings in
keeping with the respect due to the Courts as impartial administrators of justice entitled
to proceed to the disposition of its business in an orderly manner, free from outside
interference obstructive of its functions and tending to embarrass the administration of
justice.' (Telefunken Semiconductors Employees Union vs Secretary of Labor, GR No.
122743, 12 December 1997).

Employer Action

 Lock out

A ’lockout’ is a term commonly used to express an employer’s act of refusing work to

union members. The act may affect all or less than all of the employee-union
members. Lockout, in the sense in which it is universally used, is an act directed at the
union itself rather than at the individual employer- members of the union (Sta. Mesa
Slipways & Engineering Co., v. CIR , G.R. No. L-4521. August 18, 1952).

The Labor Code requires that a decision to declare a lock out must be approved by the
majority of the board of directors or association or of the partners obtained by secret
ballot in a meeting called for that purpose. I have no idea why it has to be by secret
ballot; there seems to be no provision in the Corporation Code or the revised
Corporation Code requiring such mode of voting.

The same 30/15-day cooling off period and 7-day strike vote report (strike ban)
imposed on the union are also imposed on the employer in case of a lock out.

 Closure/retrenchment

Instead of a formal lock out, employers have been known to instead effect a closure
(total or partial) of the company or else implement a retrenchment as a response to
union organizing or a labor dispute.
In one case, the company closed a department after it received the union’s CBA
proposals and the Secretary of DOLE assumed jurisdiction. The partial closure was
judged a ULP and the dismissals illegal ( Digitel vs Digitel Employees Union, GR No.
18490, 10 October 2012).
The discriminatory selection of unionists in retrenchment program, while excluding non-
unionists, was also judged a ULP and the dismissals illegal.(Bataan Shipyard vs NLRC,
GR No. L-78604, 09 May 1988).
A refusal to accept striking employees who have decided to abandon their strike, or else
ordered by the Secretary of Labor to return to work, may also constitute a lock out.

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Any employee terminated due to an unlawful lock out is entitled to reinstatement and
backwages (Art. 279 [a]).
Moral and exemplary damages may be awarded ( SONEDCO Workers Free labor Union
vs Universal Robina Corp., GR No. 220383, 05 October 2016) as well as nominal
damages ( Employees Union of Bayer vs Bayer Phil;, GR No. 162943, 06 December 2010).
Since a union is an artificial being , it cannot probably be entitled to moral damages.
Attorney’s fees may also be awarded , provided the conditions set forth under the
Labor Code (withholding of wages) and Civil Code are
present.PFFALLARJRAPRIL2021

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