Labor Relations 2021

Supplement to the Notes on

Strikes & Lock Outs

Atty. Paciano F. Fallar Jr.

A. Definition

A "strike" is "any temporary stoppage of work by the concerted action of employees

as a result of an industrial or labor dispute"( Art. 219 [o], Labor Code ).

With this definition, the absence of any of the elements ( temporary stoppage of work,
concerted action by the employees, and labor dispute) would preclude the existence of
a "strike"

1. Bilflex Phil. Labor Union vs Filflex, GR No.155679, 19 December 2006)

Citing 2 Azucena ( who in turn cited American labor law commentators and US
jurisprudence) , the SC held in this case that:

Stoppage of work due to welga ng bayan is in the nature of a

general strike, an extended sympathy strike. It affects numerous
employers including those who do not have a dispute with their
employees regarding their terms and conditions of employment.

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 commit an illegal work stoppage.

While I agree that the concerted action of the employees should be sanctioned since
they ignored the prejudicial effect of their participation in the welgang bayan on the
company's operations, I do not agree that there was a "strike". Admittedly, there was
NO "labor dispute" in this case and the Supreme Court failed to justify why the
welgang bayan is still a strike within the Labor Code definition.

The ruling confuses the concept of a strike and the concept of a valid strike. It basically
declares that for a strike to be valid, there must be a labor dispute; otherwise, the strike
is illegal. This is putting the cart before the horse, since the existence of strike is
asserted against the fact that there is no labor dispute in the first place to warrant such
characterization.

The work stoppage may indeed be outside legal protection, but it should not be
characterized as a strike. This is not a purely academic issue. It has practical
consequences, because the welgang bayan is judged from the prism of a strike which,
among other things, requires compliance with statutory procedures like a prior NOS.
Why should an NOS be required, when a welgang bayan clearly would not be based on
ULP or bargaining deadlock and therefore the NCMB would delist the notice from its
docket of strikes?

Characterizing the welgang bayan as a strike would also mean application of the
doctrine on the different liabilities for union officers and union members. The law and
jurisprudence place greater responsibility on union officers compared to union
members when a strike is declared illegal, on the theory that they have the duty to guide
their members to respect the law ( Piltel vs PILTEA, GR No. 160058, 22 June 2007 ). Should

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this imputed responsibility likewise apply to an individual employee's exercise of political
and civil rights like participation in a welgang bayan?

Finally, the absence of a labor dispute would put into doubt the authority of the
Secretary of DOLE to assume jurisdiction over work stoppage due to a welgang bayan.
How may the Secretary of DOLE assume jurisdiction when Sec. 278 (g) is unequivocal
that he may do so only if "there exists a labor dispute" ?

Bilfex and Santa Rosa Coca Cola Plant Employees Union vs Coca Cola (GR No.164302, 24
January 2007) depart from the libertarian ideology of the SC in the early 70s. A mass
demonstration at Malacanang to protest police abuses , participated by workers who
advised their employer that they would be absent in order to join the protest, was held
by the SC not to be a strike as it was not rooted in any industrial dispute ( Philippine
Blooming Mills Employment Organization vs Philippine Blooming Mills, GR No. L-31195,
05 June 1973). More importantly, the SC viewed the issue from the point of view of
political rights over the narrower field of collective bargaining:

The respondent Court of Industrial Relations, after opining that the mass
demonstration was not a declaration of strike, concluded that by their
"concerted act and the occurrence temporary stoppage of work," herein
petitioners are guilty bargaining in bad faith and hence violated the
collective bargaining agreement with private respondent Philippine
Blooming Mills Co., inc.. Set against and tested by foregoing principles
governing a democratic society, such conclusion cannot be sustained. The
demonstration held petitioners on March 4, 1969 before Malacañang
was against alleged abuses of some Pasig policemen, not against their
employer, herein private respondent firm, said demonstrate was purely
and completely an exercise of their freedom expression in general and
of their right of assembly and petition for redress of grievances in
particular before appropriate governmental agency, the Chief
Executive, again the police officers of the municipality of Pasig. They
exercise their civil and political rights for their mutual aid protection
from what they believe were police excesses. xxxxx

The collective bargaining agreement which fixes the working shifts of the
employees, according to the respondent Court Industrial Relations, in effect
imposes on the workers the "duty ... to observe regular working hours." The
strain construction of the Court of Industrial Relations that a stipulated
working shifts deny the workers the right to stage mass demonstration
against police abuses during working hours, constitutes a virtual tyranny
over the mind and life the workers and deserves severe condemnation.
Renunciation of the freedom should not be predicated on such a slender
ground.chanroblesvirtxxxualawlibrxxarychanrobles virtual law library

xxx

The respondent firm claims that there was no need for all its employees to
participate in the demonstration and that they suggested to the Union that
only the first and regular shift from 6 A.M. to 2 P.M. should report for work in
order that loss or damage to the firm will be averted. This stand failed
appreciate the sine qua non of an effective demonstration especially by a
labor union, namely the complete unity of the Union members as well as
their total presence at the demonstration site in order to generate the
maximum sympathy for the validity of their cause but also immediately
action on the part of the corresponding government agencies with
jurisdiction over the issues they raised against the local police. Circulation is
one of the aspects of freedom of expression. If demonstrators are reduced
by one-third, then by that much the circulation of the issues raised by the
demonstration is diminished. The more the participants, the more persons
can be apprised of the purpose of the rally. Moreover, the absence of one-
third of their members will be regarded as a substantial indication of disunity
in their ranks which will enervate their position and abet continued alleged
police persecution. At any rate, the Union notified the company two days in
advance of their projected demonstration and the company could have
made arrangements to counteract or prevent whatever losses it might
sustain by reason of the absence of its workers for one day, especially in

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 this case when the Union requested it to excuse only the day-shift
employees who will join the demonstration on March 4, 1969 which request
the Union reiterated in their telegram received by the company at 9:50 in the
morning of March 4, 1969, the day of the mass demonstration (here was a
lack of human understanding or compassion on the part of the firm in
rejecting the request of the Union for excuse from work for the day shifts in
order to carry out its mass demonstration. And to regard as a ground for
dismissal the mass demonstration held against the Pasig police, not against
the company, is gross vindictiveness on the part of the employer, which is
as unchristian as it is unconstitutional.chanroblesvirtualawlibrarychanrobles
virtual law library

xxx

The respondent company is the one guilty of unfair labor practice. Because
the refusal on the part of the respondent firm to permit all its employees and
workers to join the mass demonstration against alleged police abuses and
the subsequent separation of the eight (8) petitioners from the service
constituted an unconstitutional restraint on the freedom of expression,
freedom of assembly and freedom petition for redress of grievances, the
respondent firm committed an unfair labor practice defined in Section 4(a-1)
in relation to Section 3 of Republic Act No. 875, otherwise known as the
Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the
employees the right "to engage in concert activities for ... mutual aid or
protection"; while Section 4(a-1) regards as an unfair labor practice for an
employer interfere with, restrain or coerce employees in the exercise their
rights guaranteed in Section Three."c hanrobles virtual law library

2. NUWRAIN vs CA, GR No. 163942, 11 November 2008

The union’s concerted action in sporting closely cropped hair or cleanly shaven
heads. was deemed a violation of the hotel's Grooming Standards and, since it
supposedly resulted in the temporary cessation and disruption of the hotel's operations,
was judged an illegal strike.

Tested against the statutory definition, the complained concerted action cannot be a
strike since it was not the employees who refused to render work. The work
stoppage was not caused by the employees, but the management which barred them
from entering the hotel premises and later on temporarily ceased the operations of three
restaurants.

If the act of sporting closely cropped hair or cleanly shaven heads may be considered a
violation of the hotel's Grooming Standards ( a concept left woefully unexplained in the
decision ), the hotel was bereft of any legal right to prevent the employees from
discharging their functions. The most that the hotel could have done to deny them entry
is to place them on preventive suspension. But it would be difficult to justify that such
vague reference to a violation of Grooming Standards constitutes imminent threat to the
safety of the employer's property or the safety of the life and property of other
employees. That such collective act of shaving heads was meant "to undermine the
authority of and to embarrass the Hotel" does not make it a strike in the absence of
temporary stoppage of work. The preventive suspension only came after the employees
had been barred from the premises, and did not alter the fait accompli illegal act of the
company.

Instead, it was the hotel which could have been properly judged as committing an illegal
lock out, constructive dismissal, and ULP when it unilaterally barred the baldheads from
entering the hotel premises.

On the argument that "by shaving their heads and cropping their hair, the Union officers
and members violated the Labor Code which prohibits the commission of any act which
will disrupt or impede the early settlement of the labor disputes that are under
conciliation", such administrative regulation does not even state that violation of such

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obligation renders the party's act an illegal strike. Said violation may render a party
guilty of ULP , but definitely not of committing an illegal strike. For how could a non-
strike act (non-strike because there is no stoppage of work) be deemed an illegal strike?

The SC in this case listed the kinds of illegal strike under jurisprudence , to wit:

Noted authority on labor law, Ludwig Teller, lists six (6) categories of an
illegal strike, viz.:

(1) [when it] is contrary to a specific prohibition of law, such as strike by

employees performing governmental functions; or

(2) [when it] violates a specific requirement of law[, such as Article 263 of
the Labor Code on the requisites of a valid strike]; or

(3) [when it] is declared for an unlawful purpose, such as inducing the
employer to commit an unfair labor practice against non-union employees;
or

(4) [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. 264(e) of the Labor Code]; or

(5) [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. 263 of the Labor Code]; or

(6) [when it] is contrary to an existing agreement, such as a no-strike clause

or conclusive arbitration clause.18

But the SC could not pinpoint the precise category under which the collective act of
saving head fall as illegal strike.

There may be valid reasons to rule that a strike occurred in this case, and that it was
illegal, but not because the male employees shaved their heads.

The SC turned on its head the concept of a strike , from temporary stoppage of work
by the concerted act of the employees into one caused by the unilateral act of the
employer. The decision would allow employers to subjectively judge what annoying and
embarrassing acts of the employees undermine or defy the employer's authority, thus
justify preventing the employees from working and thereby categorizing the work
stoppage that the employer itself caused as an illegal strike.

The decision emasculates unions from engaging in pressure tactics during CBA
negotiations .It is conceivable that the wearing or arm band may be deemed an
unprotected act, and so would be the usual posts in social media. The decision may
even have an impact in the public l sector, where employees are prohibited from
staging strikes and other concerted activities. The shaving of heads, clearly an exercise
of freedom of expression and to submit grievance, has been transformed into an
unlawful strike.

B. Master Iron Labor Union v NLRC ( GR No. 92009, 17 February 1993).

It was held in this case that "the bringing in of CAPCOM soldiers to the peaceful
picket lines without any reported outbreak of violence, was clearly in violation of the
following prohibited activity under Article 264 of the Labor Code:

"(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

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 of a strike area, or work in place of the
strikers. The police force shall keep out of the picket lines unless actual viol
ence 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."

The SC stated that "as the Labor Arbiter himself found, no pervasive or widespread
coercion or violence were perpetrated by the petitioners as to warrant the presence of
the CAPCOM soldiers in the picket lines".
Nonetheless, it must be noted that the law clearly refers to"
actual violence or other criminal acts".  Hence, it is reasonable to conclude that actual
violence is not an absolute requirement. It is sufficient that "criminal acts" occur.
Preventing the entry and exit into the employer's premises is clearly grave coercion (Art.
286, Revised Penal Code).
A good example of illegal acts was summarized in one case:

The evidence in the record clearly and extensively shows that the individual
respondents engaged in illegal acts during the strike, such as the
intimidation and harassment of a considerable number of customers to turn
them away and discourage them from patronizing the business of the
petitioner;[waving their arms and shouting at the passersby, "Huwag kayong
pumasok sa Sukhothai!"and "Nilagyan na namin ng lason ang pagkain
d"yan!" as well as numerous other statements made to discredit the
reputation of the establishment; preventing the entry of customers; angry
and unruly behavior calculated to cause commotion which affected
neighboring establishments within the mall; openly cursing and shouting at
the president in front of customers and using loud and abusive language,
such as "Putang ina niyong lahat!", toward the rest of the managemen as
well as their co-workers who refused to go on strike; physically preventing
non-strikers from entering the premises,as well as deliberately blocking
their movements inside the restaurant, at times by sharply bumping into
them or through indecent physical contact; openly threatening non-strikers
with bodily harm, such as "Pag hindi sila pumayag, upakan mo!";and
shouting at the security guard "Granada!" which caused panic among the
customers and prompted security to report a possible death threat to
management and the security agency.( Sukhothai Cuisine & Restaurant vs
Court of Appeals, GR No. 150437, 17 July 2006).

C. Return-to-Work Order of the Secretary

The term "under the same terms and conditions of employment" means actual , not
payroll, reinstatement of the workers (Manila Diamond Hotel Employees Association vs
Court of Appeals, GR No. 140518, 16 December 2004).

But in one case, payroll reinstatement was allowed because of "superseding

circumstances" mentioned by the Acting Secretary of Labor which referred to the final
decision of the panel of arbitrators as to the confidential nature of the positions of
the 12 employees thereby rendering their actual and physical reinstatement
impracticable and more likely to exacerbate the situation. The Supreme Court held that
payroll reinstatement in lieu of actual reinstatement ordered in these cases appeared
justified as an exception to the rule until the validity of their termination is finally
resolved, and saw no grave abuse of discretion on the part of the Acting Secretary of
Labor in ordering the same. (University of Immaculate Concepcion vs Sec. of Labor GR No.
151379, 14 January 2005).

A clearer justification for payroll reinstatement is present in another case:

Although we pronounce that the dismissed faculty members must

be actually reinstated while the labor dispute is being resolved, we

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 have to take into account the fact that at this time, the first
semester for schoolyear 1990-1991 is about to end. To change the
faculty members around the time of final examinations would
adversely affect and prejudice the students whose welfare and
interest we consider to be of primordial importance and for whom
both the University and the faculty union must subordinate their
claims and desires. This Court therefore resolves that the actual
reinstatement of the non-reinstated faculty members, pending resolution
of the labor controversy before the NLRC, may take effect at the start of
the second semester of the schoolyear 1990-1991 but not later. With this
arrangement, the petitioner's reasoning that it will be violating contracts
with the faculty members who took over the dismissed professors'
teaching loads becomes moot considering that, as it alleges in its
petition, it operates on a semestral basis.

Under the principle that no appointments can be made to fill items which
are not yet lawfully vacant, the contracts of new professors cannot
prevail over the right to reinstatement of the dismissed personnel.
However, we apply equitable principles for the sake of the students and
order actual reinstatement at the start of the second semester.(
University of Sto. Tomas vs NLRC. G.R. No. 89920 18 October 1990

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). To exclude union officers, shop stewards and those with pending
criminal charges in the directive to the company to accept back the striking workers
without first determining whether they knowingly committed illegal acts would be
tantamount to dismissal without due process of law. The Secretary of Labor was
deemed to have gravely abused his discretion in excluding union officers, shop
stewards and those with pending criminal charges in the order to the company to accept
back the striking workers pending resolution of the issue involving the legality of the
strike ( Telefunken Semiconductors Employees Union vs Secretary of Labor , GR No.
s122743 & 127215, 12 December 1997)

D. Disciplinary sanctions

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

including dismissal (Art. 279 [a] Labor Code)

It has been held that "[t]he law, in using the word may, grants the employer the option
of declaring a union officer who participated in an illegal strike as having lost his
employment." Proof that an employee who knowingly participated in an illegal strike is
a union officer was enough to warrant his dismissal from employment (Piltel vs PILTEA,
GR No. 160058,22 June 2007). Nonetheless, due process must be observed prior to
dismissal ( Suico vs NLRC, GR No. 146762, 30 January 2007).

In one case, it was held that the Secretary of DOLE exceeded his jurisdiction when he
restrained PAL from taking disciplinary action against its guilty employees, for, under
Art. 263[ now 278] of the Labor Code, all that the Secretary may enjoin is the
holding of the strike, but not the company’s right to take action against union
officers who participated in the illegal strike and committed illegal acts. The
prohibition which the Secretary issued to PAL constitutes an unlawful deprivation of
property and denial of due process for it prevents PAL from seeking redress for the
huge property losses that it suffered as a result of the union’s illegal mass
action( Philippine Airlines vs Secretary of Labor GR No. 88201, 23 January 1991).

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
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employment status. (National Federation of Labor vs NLRC, GR No. 113466, 15 December
1997).

Nonetheless, such self-declaration cannot be considered conclusive as the employee

may contest the termination. The employees may adduce evidence that there was no
deliberate defiance , like in a case 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 is physical or legal
impossibility which would excuse non-compliance like the employee was on maternity
leave (Rodriguez, et Al. vs. PAL , G.R. No. 178501) 11 January 2016) , or was
sick/injured/hospitalized, was not in the country, or even detained by authorities.

The prudent course of action would be for the company to submit as an issue for
resolution by the Secretary of DOLE the unionists' defiance of the return-to-work order,
and argue that the Secretary should consider them by their illegal act to have forfeited
their right to their employment. The Secretary, under his plenary authority, would have
the right to declare the unionists' loss of employee status.

Having held the strike illegal and having found that PEU's officers and
members have committed illegal acts during the strike, we hold that no writ of
execution should issue for the return to work of PEU officers who participated
in the illegal strike, and PEU members who committed illegal acts or who
defied the return-to-work orders that the Secretary issued on 19 November
1997 and 28 November 1997. The issue of who participated in the illegal
strike, committed illegal acts, or defied the return-to-work orders is a
question of fact that must be resolved in the appropriate proceedings
before the Secretary of Labor.( Philcom Employees Union vs Philippine
Global Communications, GR No. 144315, 17 July 2006).

E. Liability of 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.
(Fadrequelan vs Monterey Food Corp., GR No. 178409, 08 June 2011).

But a union officer cannot be terminated simply because of such status. When the union
president was able to submit proof that during the strike he was assigned at the Gen.
Trias farms, not at the Lipa farm and even directed the Cavite farm employees not to do
anything which might aggravate the situation, his dismissal was held illegal (
Fadrequelan vs Monterey Food Corp., ibid.)

The individual workers committing the illegal acts must be identified. Simply referring
to "strikers" or "complainants in this case" is not enough to justify their dismissal (
Association of Independent Union in the Philipines vs Cenapro Chemcial Corp., GR No.
120505, 25 March 1999). The company must to specifically point out the participation
of each of the union members in the commission of illegal acts during the picket
and the strike. Union members who participated in an illegal strike but were not
identified to have committed illegal acts are entitled to be reinstated to their former
positions but without backwages. (National Union Of Workers In the Hotel Restaurant And
Allied Industries -Dusit Hotel Nikko Chapter, v Court Of Appeals,  G.R. No. 163942 , 11
November 2008)

In case of strike-related violence, it has been held that:

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 It is the view of PLDT that in the dismissal of employees for strike-
related violence, it is sufficient to merely declare the latter to have
lost their employment without having to comply with any procedure
for their termination.

PLDT is mistaken. Art. 277 (b) in relation to Art. 264 (a) and
(e) recognizes the right to due process of all workers, without distinction as
to the cause of their termination. Where no distinction is given, none is
construed. Hence, the foregoing standards of due process apply to
the termination of employment of Suico, et al. even if the cause
therefor was their supposed involvement in strike-related violence
prohibited under Art. 264 (a) and (e).( Suico vs NLRC, GR No. 146762, 30
January 2007).

There is therefore no short cut to due process in termination for strike-related

case.PFFALLARJRMay20221