other in an atmosphere of freedom and mutual respect,
Unfair Labor Practice disrupt industrial peace and hinder the promotion of healthy
Unfair Labor Practice (ULP)
A violation of the employees’ right to self-organization or
collective bargaining. It can be committed against the worker,
and secondarily, against the union.
Labor Code provisions on ULP
1. Art. 258 [247] – Prescribes the concept of ULP’s and the
procedure for their prosecution.
2. Art. 259 [248] – ULP committed by employers.
3. Art. 260 [249] – ULP committed by the labor
organization/union.
4. Art. 274 [261] – gross violations of CBA as ULP.
5. Art. 278(c) [263(c) – dismissal of union officers duly
elected thereby threatening the existence of the union
[Union busting].
Actors in the commission of Unfair Labor Practice
1. Employers [Art. 259] – only the officers and the agents of
the corporations, associations, partnerships who have
actually participated in or authorized/ratified the ULPs are
criminally liable.
2. Labor Organization [Art. 260] – only the officers,
members of the governing boards, representatives or
agents, or members of labor associations or organizations
who have participated in or authorized/ratified the ULPs
are criminally liable.
3. Third persons [Art. 257]
Automatic agency
A third person acting in the interest of the employer can be
held liable for ULP. If you act in the interest of an employer, by
stopping employees from organizing even if you were not
consciously appointed as acting for the employer, you are
acting for the employer because the law says “includes any
person acting in the interest of an employer, directly or
indirectly”:
Article 219(E). “Employer” includes any person acting in
the interest of an employer, directly or indirectly. The
term shall not include any labor organization or any of its
officers or agents except when acting as employer.
Non-abridgment of right to self-organization
ART. 257. [246] Non-Abridgment of Right to Self-
Organization. – It shall be unlawful for any person to
restrain, coerce, discriminate against or unduly interfere with
employees and workers in their exercise of the right to self-
organization.
Such right shall include the right to form, join, or assist labor
organizations for the purpose of collective bargaining
through representatives of their own choosing and to
engage in lawful concerted activities for the same purpose
for their mutual aid and protection, subject to the provisions
of Article 264 of this Code.
Unfair labor practice in the Labor Code
ART. 258. [247] Concept of Unfair Labor Practice and
Procedure for Prosecution Thereof. – Unfair labor
practices violate the right of workers and employees to
self-organization*, are inimical to the legitimate
interests of both labor and management, including their
right to bargain collectively and otherwise deal with each
and stable labor-management relations.
Consequently, unfair labor practices are not only violations
of the civil rights of both labor and management but are also
criminal offenses against the State which shall be subject to
prosecution and punishment as herein provided.
Subject to the exercise by the President or by the Secretary
of Labor and Employment of the powers vested in them by
Articles 263 and 264 of this Code, the civil aspects of all
cases involving unfair labor practices, which may include
claims for actual, moral, exemplary and other forms of
damages, attorney’s fees and other affirmative relief, shall
be under the jurisdiction of the Labor Arbiters.
The Labor Arbiters shall give utmost priority to the hearing
and resolution of all cases involving unfair labor practices.
They shall resolve such cases within thirty (30) calendar
days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings
shall bar recovery under the Civil Code. No criminal
prosecution under this Title may be instituted without a final
judgment finding that an unfair labor practice was
committed, having been first obtained in the preceding
paragraph.
During the pendency of such administrative proceeding, the
running of the period of prescription of the criminal offense
herein penalized shall be considered interrupted:
Provided, however, that the final judgment in the
administrative proceedings shall not be binding in the
criminal case nor be considered as evidence of guilt but
merely as proof of compliance of the requirements therein
set forth.
*The right to self-organization is not a constitutional right.
Unfair labor practices
- Violations of civil rights of both labor and management.
- A violation of the right to self-organization.
- Criminal offenses against the State. It can ripen into a
criminal case but only after finality of the civil aspect
findings.
Prescriptive period for ULP
Art. 290. All unfair labor practices arising from Book V shall
be filed with the appropriate agency within 1 year from
accrual of such unfair labor practice; otherwise, they
shall be forever barred.
- Prescriptive period for ULP is 1 year from the cause of
action accrues.
- The 1 year prescriptive period is postponed if the
administrative aspect is not yet completed.
Act that constitutes ULP
An act complained of as ULP must have a proximate and
causal connection with the following:
1. Exercise of the right to self-organization;
2. Exercise of the right to collective bargaining; or
3. Compliance with the CBA.
ULP is committed against
1. Individual who possesses the right to self-organization; or
2. Labor organization [if another labor org is being favored in Thousand Pesos (P10,000.00), or imprisonment of not less
a way discriminatory to the former]. than three months nor more than three years, or both such
fine and imprisonment at the discretion of the court.
Requisites of ULP
1. Employer-employee relationship between the offended In addition to such penalty, any alien found guilty shall be
party and the offender; and summarily deported upon completion of service of sentence.
2. The act complained of must be expressly mentioned as Any provision of law to the contrary notwithstanding, any
ULP in the Labor Code [If not mentioned in the LC, there criminal offense punished in this Code shall be under the
is no ULP]. concurrent jurisdiction of the Municipal or Regional Trial
Court.
Liabilities resulting from ULP
1. Administrative liability – order reinstating the employee - The penalties for ULP as a criminal offense is a fine of not
or a cease-and-desist order. less than P1,000 or more than P10,000 or imprisonment of
2. Civil liability – payment of actual, moral, exemplary, and not less than 3 months or more than 3 years or both at the
other forms of damages, attorney’s fees and other discretion of the court.
affirmative relief. - It is personal in nature. The employer may be a juridical
3. Criminal liability – payment of fine or imprisonment. corporation but the one liable for the criminal violation are
the officers or agents of the corporation.
*Recovery of civil liability in the administrative proceedings of
the labor arbiter shall bar recovery under the Civil Code in the Difficulty of securing a conviction in the criminal aspect
regular courts. for ULP
- If the administrative proceeding will take long [ex: 15
Aspects of ULP years], there will be issues on whether you still have
1. Civil aspect witnesses or parties available.
- Under the labor arbiter’s jurisdiction. The labor arbiter has - The employees may no longer be in the company of the
the original and exclusive jurisdiction of ULP. employer and may have lost any interest in filling for the
- It can be compromised. criminal aspect.
- Quantum of evidence in administrative case is substantial - It is easier to secure a criminal conviction under the Wage
evidence. Rationalization Act [R.A 6727].
- If the finding of the labor arbiter is appealed, the
proceedings must continue until the last forum decides ULP committed by
with finality that there is ULP. Employers Labor Third persons
- The administrative proceeding interrupts the prescriptive [Art. 259] Organization [Art. 257]
period of the criminal offense. Even if the administrative [Art. 260]
proceeding takes as long as 15 years, you can still file a 1. Interfere 1. Restrain 1. Restrain
criminal case after. 2. Restrain 2. Coerce 2. Coerce
3. Coerce 3. Discriminate
2. Criminal aspect against
- Under the regular court’s jurisdiction. 4. Unduly
- It cannot be compromised but there can be desistance on interfere
the part of the complainant.
- ULP can be prosecuted as a criminal offense but only after Interference by management
the termination of the administrative ULP prosecution - You cannot help the union is you are the management.
under the Labor Code [cannot be prosecuted - Interference by speech is difficult to prove.
simultaneously because it will cause industrial division].
- Before it can ripen into a criminal case, there must first be Coercion
a final and executory finding that ULP has been civilly - Ex: Forcing an employee to resign from the union.
found to have been committed. - Restraint and coercion by way of conduct is easily proven
- The prosecutor’s office often cites the memorandum because it is a question of witnesses.
between the DOJ and DOLE which states that the
prosecutor’s office will refrain from entertaining labor *Restraint and coercion are already criminal violations under
related cases unless there is a clearance granted by the the RPC. It can be seen since it is behavioral. In interference it
secretary of labor. is more subtle [speech].
- The prosecutor will determine won there is a prima facie
case. Not all violations of the economic provisions of CBA are
- Evidence presented in the civil case cannot be used in the ULP
criminal case. You have to begin ab novo or from zero. - Where the acts complained of hinges on a question of
interpretation or implementation of ambiguous economic
Penalties for ULP as a criminal offense provision of the CBA, the same cannot be unfair labor
Article 288. Penalties. Except as otherwise provided in this practice [considered as grievance proceeding and
Code, or unless the act complained of hinges on a question jurisdiction is with the voluntary arbitrator].
of interpretation or implementation of ambiguous provisions - Only gross violations of economic provisions of the CBA
of an existing collective bargaining agreement any violation can constitute ULP.
of the provisions of this Code declared to be unlawful or - To be unfair labor practice it must be flagrant and or
penal in nature shall be punished with a fine of not less than malicious refusal to comply with an economic provision.
One Thousand Pesos (P1,000.00) nor more than Ten
ULP can be committed only in the private sector
- If a government employee is harassed by his or her
superior, on account of his or her union activities, a ULP
complaint cannot be brought against his government
superior.
- The labor arbiter does not have jurisdiction over
government employees.
- The public sector complaints against superiors in
government for anti-union activities or acts are brought
before the PSLMC (Public Sector Labor Management
Council).
- The PSLMC has jurisdiction over labor relations matters
with respect to government employees.
Sec. 15., E.O 180. A Public Sector Labor Management
Council, hereinafter referred to as the Council, is hereby
constituted to be composed of the following:
1. Chairman, Civil Service Commission Chairman;
2. Secretary, Department of Labor and Employment Vice
Chairman;
3. Secretary, Department of Finance Member;
4. Secretary, Department of Justice Member; and
5. Secretary, Department of Budget and Management
Member.
The Council shall implement and administer the provisions
of this Executive Order. For this purpose, the Council shall
promulgate the necessary rules and regulations to
implement this Executive Order.
- There is no unfair labor practice against the government
equivalent to managerial employees.
- The BLR has jurisdiction over inter-union and intra-union
disputes of unions made up government employees
[employee’s organization].
Election of officers and members of the board is an intra-
union conflict within the jurisdiction of the BLR
It is quite clear from this provision that BLR has the original and
exclusive jurisdiction on all inter-union and intra-union conflicts.
An intra-union conflict would refer to a conflict within or inside a
labor union, and an inter-union controversy or dispute, one
occurring or carried on between or among unions.
The subject of the case at bar, which is the election of the
officers and members of the board of KMKK-MWSS, is, clearly,
an intra-union conflict, being within or inside a labor union. It is
well within the powers of the BLR to act upon. (Bautista vs. CA)
ULP by Employer
Article 259. [248] Unfair Labor Practices of Employers. – It
shall be unlawful for an employer to commit any of the
following unfair labor practices:
(a) To interfere with, restrain or coerce employees in the
exercise of their right to self-organization;
ULP by employer:
1. Interfere;
2. Restrain; or
3. Coerce.
- Par.(a) is a summary of how ULP can be committed by
employers.
- The listed offenses under Art. 259 are examples of
interference, restraint, or coercion.
- Art. 259 is not an exhaustive list of ULP’s that may be
committed by the employer [ex: employer interference by
speech].
(b) To require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to which he
belongs;
Yellow dog contract
- It is an agreement which exacts from workers as a
condition of employment, that they shall not join or belong
to a labor organization, or attempt to organize one, during
the period of their employment or that they shall withdraw
therefrom in case they are already members of a labor
organization.
- A yellow dog contract is effectively an outright restriction
on the right to self-organization [ULP].
- The employer interviewing you will ask you if you are a
member of a union and whether you have been in a strike.
- The employer will require that the employee will not join a
labor organization or withdraw from one to which he
already belongs.
Stipulations in a yellow dog contract
1. A representation by the employee that he is not a member
of a labor organization;
2. A promise by the employee that he will not join a union;
and
3. A promise by the employee that upon joining a labor
organization, he will quit his employment.
(c) To contract out services or functions being
performed by union members when such will interfere
with, restrain, or coerce employees in the exercise of
their right to self-organization;
Contracting out of services
- You can contract out services that are not directly related
to the main business or function of the employer. Such as
security services, maintenance services, janitorial
services, and other special admin services.
- The problem is you have to offer early retirement and
separation benefits by which they would accede to being
terminated.
- It becomes ULP when the employer terminates employees
by contracting out their services to agencies and forcing
them to leave the company.
- It is not ULP if the employees choose to voluntary resign
or retire, and the management replaces their services by
contracting out. The`y legitimately hire services of the
security agency since they are not forced to replace them
with regular employees.
- The contracting out must be the proximate cause for the
right to self-organization being affected; not the
resignation, not the attrition of the workers who resigned,
retired, or are separated from service, and consequently,
have to be replaced by agency workers.
Early retirement plan is not ULP
It is not considered as ULP since the employee will retire
voluntarily for a consideration. The employer is not interfering
with his right to self-organization but merely offering him an
early retirement.
However, it becomes ULP when the management says “All
those who want to avail of early retirement must do so within
the month of November. If not complied with, the offer ends.”
If after November and the union says that a lot of its members
still want to avail but the management refuses and says that
they cannot do so because the period of offering has already
lapsed, that is ULP since it diminishes the benefits that the
worker should receive in the period that he was supposed to
retire.
Shell oil workers union vs. Shell oil company
There was specific coverage concerning the security guard
section in the collective bargaining contract. It is found not only
in the body thereof but in the two appendices concerning the
wage schedules as well as the premium pay and the night
compensation to which the personnel in such section were
entitled. It was thus an assurance of security of tenure, at least,
during the lifetime of the agreement.
What renders the stand of Shell Company even more
vulnerable is the fact that it had already been studying the
matter of dissolving the security guard section and contracting
out such service to an outside agency. Apparently, it had
reached a decision to that effect for implementation the next
year.
Nonetheless on August 26, 1966, a collective bargaining
contract was entered into which, as indicated above, did
assure the continued existence of the security guard section.
The Shell Company did not have to agree to such a stipulation.
Or it could have reserved the right to effect a dissolution and
reassign the guards. It did not do so. Instead, when it decided
to take such a step resulting in the strike, it would rely primarily
on provisions in the collective bargaining contract couched in
general terms, merely declaratory of certain management
prerogatives.
Considering the circumstances of record, there can be no
justification then for Shell Company's insistence on pushing
through its project of such dissolution without thereby incurring
a violation of the collective bargaining agreement. The Shell
Company, in failing to manifest fealty to what was stipulated in
an existing collective bargaining contract, was thus guilty of an
unfair labor practice.
(d) To initiate, dominate, assist, or otherwise interfere
with the formation or administration of any labor
organization, including the giving of financial or other
support to it or its organizers or supporters;
- The employer’s attitude towards a labor organization is not
to interfere and just stand-by. It should be neutral to the
union.
- The employer can help the union without running afoul
with Art. 259(d) by providing in the CBA the benefits that
they wish to grant to the employees. In such case, the
management is just merely complying with the CBA, so it
is not ULP. It can be general welfare clause wherein
management does not commit itself to specific grants on
the fear that cannot sustain it. [ex: “such other support,
material, financial, etc., mutually acceptable to the union]
Company union is prohibited
- A company union is any labor organization whose
formation, function or administration has been assisted by
any act as defined as ULP in the labor code.
- It is when the company is obviously in favor of the
particular union such that it gives the members money,
bonus or assistance to make the union win.
- The management cannot create a company union. A
company union is a union that is founded, maintained, and
sustained with employer founding an assistance such that
it will no longer have independent existence contrary to
what is provided by law. A union must be independent of
management.
Ex. of company union:
- Management files a joint motion with the defeated union to
nullify the result of certificate election.
- No member of the union is dismissed despite the
retrenchment policy which resulted in the dismissal of the
other employees who are officers and members of another
union.
- Dismissing employees for not joining the union being
supported by the company.
(e) To discriminate in regard to wages, hours of work
and other terms and conditions of employment in order
to encourage or discourage membership in any labor
organization.
Nothing in this Code or in any other law shall stop the
parties from requiring membership in a recognized
collective bargaining agent as a condition for
employment, except those employees who are already
members of another union at the time of the signing of
the collective bargaining agreement.
Employees of an appropriate bargaining unit who are
not members of the recognized collective bargaining
agent may be assessed a reasonable fee equivalent to
the dues and other fees paid by members of the
recognized collective bargaining agent, if such non-
union members accept the benefits under the collective
bargaining agreement:
Provided, That the individual authorization required
under Article 242, paragraph (o) of this Code shall not
apply to the non-members of the recognized collective
bargaining agent;
- Changes in the working conditions to influence union
behavior is ULP [ex: if management says that we will
discontinue our pick-up service because the union filed a
notice of strike].
- But if management says, “we will no longer give housing
loans”, that is not ULP since it is not a change in the
working conditions. It involves another contract [mutuum].
Thus, the LA or VA does not have jurisdiction over the
loans.
XPN: Union security clause is not ULP
- Union security clause is a clause in the CBA which
provides that membership in the union is a condition for
employment.
- The clause requires that the employee must join the union
once he becomes a regular employee.
- The employer cannot be faulted for ULP because he is just - If it involved company policies, ordinary illegal dismissal
complying with the CBA which requires that an employee provisions will apply.
who becomes regular must become a member of the
union. Distinction
Ordinary/Retaliatory Unfair Labor
Closed shop provision dismissal Practice
- The employer cannot hire persons who are not members dismissal
of the union. They must first become members of the Can be YES NO. Since it
union. compromised ripens into
criminal liability.
Union dues/agency fees must be stated in the union Can ripen into NO YES
security clause criminal
- Union members cannot be deducted union dues if it is not liability
recognized in a union security clause. Prescriptive 4 years 1 year
- Likewise, non-union members cannot be deducted agency period
fees if it is not stated in the union security clause. Reinstatemen NO. YES. Employee
t even if must be
(f) To dismiss, discharge or otherwise prejudice or position is If the employee reinstated.
discriminate against an employee for having given or abolished cannot be reinstated,
being about to give testimony under this Code; the employer must
give separation pay,
full-back wages plus
This provision in Art. 259(f) is similar to Art. 118 which 1 month salary for
provides: every year of service.
Burden of Employer must prove Complainant
Article 118. It shall be unlawful for an employer to refuse proof lawful dismissal must prove ULP
to pay or reduce the wages and benefits, discharge or in Conversion of NO. You cannot YES. If the 1-
any manner discriminate against any employee who has one case to move from ordinary year lapses and
filed any complaint or instituted any proceeding under this the other and illegal dismissal to no ULP dismissal
Title or has testified or is about to testify in such vice versa ULP dismissal. is filed, an
proceedings. ordinary illegal
dismissal case
Distinction between Art. 259(f) and Art. 118 may still be filed.
Art. 259(f) Art. 118
Labor Relations Labor Standards Dismissal for the
- Employee is - Retaliatory measure. exercise of the
dismissed/discharged - When an employee files right to self-
because he is about to a case against his organization is
file a complaint or about employer or provides a not a valid
to give a testimony for testimony supporting a ground for
ULP. complaint against labor dismissal.
- An employer standards. Example An employee is If the employer
discriminates against an - Labor standard dismissed because forced the
employee in the proceeding. of a violation of a employees to
exercise of his right to - Applies in an company policy. sign an
self-organization. unorganized workplace instrument
- It is when the employee and the employee has If the employee is indicating that the
gives testimony against just filed or testified in a always late or stole employer
the employer in an money claims or something and the observed labor
Unfair Labor Practice benefits complaint. other employee will standards
and the employer - If the employer say “no he is not late, provisions, when
punishes him by dismisses the and he did not steal.” he might not
withdrawing certain employee, then the law If the employer will have not,
benefits. compels the Labor remove the other together with the
- Even if his position has Arbiter to order the employee form work act of terminating
been abolished, the reinstatement of the that is supposed to or coercing those
court will still order the illegally dismissed be a witness, that is who refuse to
employer to reinstate employee by virtue of a retaliatory cooperate.
the employee. discrimination and the measure.
award of attorney’s fees The act preempts
and damages. the right of the
- The dismissal is based hotel workers to
on discrimination. seek better terms
and conditions of
- If it does not involve labor relations, Art. 118 is applied employment
because it is not related to the right to self-organization. through
 concerted action. - It must be gross violations of economic provisions in the
CBA.
The workers are - There is gross violation when there is no question for
prevented from interpretation or there are no ambiguous terms and there
bargaining for is is flagrant and/or malicious refusal to comply with the
their wages since economic provisions of the CBA.
they were forced
to sign a waiver The provisions of the preceding paragraph
indicating that the notwithstanding, only the officers and agents of
employers corporations, associations, or partnerships who have
observe correct actually participated in, authorized or ratified unfair
labor standards. labor practices shall be held criminally liable.

- An ULP dismissal can be converted into an ordinary illegal

dismissal case, but an ordinary illegal dismissal case
cannot be converted into an ULP dismissal.
- An ULP cannot be the subject of compromise because it
can give rise to a criminal case. It can be deleterious to
society and a serious disturbance to peace and order. It is
Employer interference
a ground for strike. by way of speech
(g) To violate the duty to bargain collectively as
prescribed by this Code; - Speech that is considered ULP and is not protected by the
constitutional right of freedom of speech and is now
- The duty to bargain depends on which phase of the considered as reprehensible speech.
collective bargaining process [negotiating, administrative - Management must be a bystander. He cannot offer any
or re-negotiation]. speech that constitutes a promise of reward or threat of
- Bad faith bargaining such as Surface Bargaining, reprisal.
Boulwarism, bargaining on the basis of Take it or Leave it
is ULP. 1. Promise of reward by employer
- For as long as you sit down and talk, you are still An employer who makes promises to the employees in a way
negotiating. The management’s position not to bargain is that influences their right to self-organization is ULP.
as legitimate as the union’s position to bargain. Not ULP
and not bad faith bargaining [nestle case]. Ex:
The employer suddenly finds that there is a movement among
Ex of ULP by violating duty to bargain: the workers to organize a union. The employer calls them for a
If the employer does not furnish the union a copy of the latest meeting. During the meeting the employers said "we heard that
audited financial statements (AFS) upon its written request you are forming a union. Why can't we talk directly with each
within 30 days from submission to the employer. other about your problem? Do you want a raise? How much
are you asking?"
The employer makes a promise that he will raise the wages by
(h) To pay negotiation or attorney’s fees to the union or
the end of the year to influence the workers not to form a
its officers or agents as part of the settlement of any
union. The employer is essentially saying that the workers do
issue in collective bargaining or any other dispute;
not need a union since he will already give them an increase.
Featherbedding
- Once there is an EBA, the management can no longer talk
- Only paying attorneys, officers, or agents.
with the general membership of the workers about the
terms and conditions of work [Boulwarism].
Giving signing bonus is not ULP
- The management may only talk with the bargaining
- Suppose the employer says “We cannot give you the
representatives of the union [negotiators] and not the
increase that you are asking for because the company is
principal.
not doing good right now, there is a market recession. We
will just increase the signing bonus.”
2. Threat of reprisal by employer
- Increasing the signing bonus is offered because it is just a
one-time transaction unlike an increase in the wage that
Ex:
will be carried on in the years to come. That is not ULP.
The employer finds that there is a movement among his
- What is prohibited in the Art. 259(h) is paying to the union
employees to form a union. He gathers all of them in a meeting
on its officers or agents.
and then the employer tells them, "If we catch you forming a
- It is ULP when you the whole bargaining panel that they
union, do not be surprised what will happen to you. We will
will be given a special payment so that they will readily
make it difficult for you to continue working here because we
agree on the agreement.
do not look at unions with delight."
- If you pay everybody (the entire bargaining unit), it
becomes a benefit. It is no longer an unwarranted and
XPN: Conciliation and mediation proceedings with the
unauthorized payment.
National Conciliation and Mediation Board (NCMB)
(i) To violate a collective bargaining agreement.
Article 239. Privileged Communication. Information and
 statements made at conciliation proceedings shall be
treated as privileged communication and shall not be used
as evidence in the Commission (NLRC). Conciliators and
similar officials shall not testify in any court or body
regarding any matters taken up at conciliation proceedings
conducted by them.
- Information and statements made at conciliation
proceedings shall be treated as privileged communication.
- In conciliation and mediation proceedings, the
management can utter speech that is considered as ULP
since the communication is privileged.
- The conciliator/mediator cannot devolve to testify that
management threatened the union because the
conciliation and mediation proceeding is privileged. It
cannot be used in evidence.
- However, if such privileged communication is used as
evidence and the opposition’s lawyer does not timely
assert that it was privileged communication, then the
admission is allowed.
- The whole idea of making conciliation and mediation
proceedings open is to enable parties to sincerely say their
side and to open up all the possibilities for compromise.
- If a compromise is arrived during conciliation and
mediation proceeding and only the mediator/conciliator are
present when the compromise was written and when both
parties signed, the compromise cannot be enforced unless
it is brought out of conciliation and mediation.
- In order to enforce such compromise agreement, the labor
relations officer must be brought by the parties and he
must sign as a witness so that it is not just the
conciliator/mediator who presides.
The effect of which, it is brought out within the ambit of
Art. 239 and is now covered by Art. 233 of the LC:
Article 233 [227]. Compromise agreements. Any
compromise settlement, including those involving labor
standard laws, voluntarily agreed upon by the parties with
the assistance of the Bureau or the regional office of the
Secretary of Labor and Employment, shall be final and
binding upon the parties.
The National Labor Relations Commission or any court
shall not assume jurisdiction over issues involved therein
except in case of non-compliance thereof or if there is prima
facie evidence that the settlement was obtained through
fraud, misrepresentation, or coercion.
- After it is brought out of the conciliation/mediation
proceedings, the compromise agreement becomes the law
between the parties.
- The DOLE officials sign the agreement since it is with the
assistance of the bureau/regional office of the DOLE.
The employer cannot interrogate an employee about his
union activities or as to his exercise of right to self-
organization
Ex:
The employee was absent, and the management asks why.
The employee says that he was attending a union meeting.
The employer says “Is that why you called in sick? And you
expect us to look for a substitute because you are attending a
union meeting?" That is unfair labor practice speech in a way
because you are already interfering.
- Asking an employee why he was absent or whether he
was absent is a valid business question is not yet ULP.
- But the moment the employee says that he attended a
union meeting, the employer cannot ask any more
questions about it since it will be interference.
- The right to self-organization is solely the business of the
employee.
Borderline speech
Speech by the employer that is carefully crafted by lawyers
such that it may hint at the promise of a reward, or it may hint
at a threat of reprisal but does not really amount to a promise
of reward or threat of reprisal.
Ex:
“We have heard that there is a movement that is now occurring
among you that you want to make a union. We are not saying
that we are opposing to that because you have that right under
the law – you can make a union. That is not prohibited by the
company. That is your right, we will not oppose to that.
We, employers, will follow the law. Our neighbor – Car
Batteries Inc. – remember before they were successful
because they were the pioneers of car batteries before. What
happened when they made a union? They incurred losses. I’m
not saying that the union is the reason for their downfall but it is
clear that when you have a union, there are strikes, chaos, etc.
They could’ve continued their expansion but it was stopped.
Don’t say that you want this to happen? To ruin the company
that you have been relying on for your wages. We don’t want
that.”
Interpretation of borderline speech
The history of the speaker, the circumstances where that
speech was uttered, and the general perception and the
behavior of the speaker is considered in determining on
whether the borderline speech is ULP.
Borderline speech as ULP
- If there has been a history in the past where workers have
been complaining of unfair labor practices by the
employer, the borderline speech made by the employer is
ULP.
- If the employer has had a history of fighting unions of
frustrating union organizations among its workers or
employees, the speech is ULP.
- Conversely, if the employer has a good history wherein he
has no anti-union bias, then the borderline speech is not
ULP.
- Borderline speech partakes of the nature of what was
historically exhibited by the employer.
- Past activities can be presented in the trial on the merits to
prove habit, to prove a tendency. But it cannot be used to
prove commission [not a violation of the rules of court/res
inter alios acta rule].
- It only proves the habit that you are a habitual perpetrator
of unfair labor practice [disputable presumption].
Dangerous Tendency Rule
It is still ULP when an employer makes a threat even if
nobody is actually threatened
The dangerous tendency rule is applied by the SC in unfair
labor practice cases. Even if you cannot produce the threat, if
your very words have the dangerous tendency of threatening
you are engaged in unfair labor practice. The yardstick that is
used is the words themselves. If the words in themselves have
a dangerous tendency to affect their exercise in the right to
self-organization, then it is ULP.
The whole law seeks to abolish the threat to workers in the
exercise of the right to self-organization. If the words in
themselves are threatening, then ULP is committed. It does not
have to actually produce the threat. If the words that are used,
taken in themselves are inimical to the exercise of the right to
self-organization, then ULP has been committed.
Application of dangerous tendency rule: Employer
threatening the employees that they are being spied upon
is ULP
To make the people believe that there are spies to defy people
in the exercise of their rights is already threatening. You cannot
interrogate, you cannot put in spies in the ranks of your
workers. You cannot make them believe that they are being
spied upon.
Use of expletives as a casual expression of surprise or
exasperation
The use of expletives as a casual expression of surprise or
exasperation is not serious misconduct per se that warrants an
employee's dismissal. However, the employee's subsequent
acts showing willful and wrongful intent may be considered in
determining whether there is a just cause for their employment
termination.
A teacher exclaiming "anak ng puta" after having encountered
a student is an unquestionable act of misconduct. However,
whether it is serious misconduct that warrants the teacher's
dismissal will depend on the context of the phrase's use. "Anak
ng puta" is similar to "putang ina" in that it is an expletive
sometimes used as a casual expression of displeasure, rather
than a personal attack or insult.
The utterance in question, "anak ng puta," was an expression
of annoyance or exasperation without any clear intent to
maliciously damage or cause emotional harm upon the
student. That they had not personally known each other before.
Petitioner had no personal vendetta against Paula Mae as to
mean those words to insult her.
While uttering an expletive out loud in the spur of the moment
is not grave misconduct per se, the refusal to acknowledge this
mistake and the attempt to cause further damage and distress
to a minor student cannot be mere errors of judgment.
Petitioner's subsequent acts are willful, which negate
professionalism in his behavior. In the interest of self-
preservation, petitioner refused to answer for his own mistake;
instead, he played the victim and sought to find fault in a
student who had no ill motive against him.
The open defiance and disrespect to school authorities and
processes are magnified in this case as respondent refused to
sign any order served on him. He even used, intentionally or
unintentionally the letterhead of the AUFEA in his letters to the
Committee and signed the same as AUFEA President when he
is being complained of as a faculty member and not in his
capacity as the Union President. (Adamson University
Faculty and Union vs. Adamson University)
Rules on Solicitation
These are the rules in the U.S. and are applicable in the
Philippines with respect to the kind of speech that the employer
can limit the employee in his exercise of the right to self-
organization.
1. A no solicitation rule of union membership or
prohibition against distribution of union literature
during working hours/working time within company
property is presumptively invalid.
- The no-solicitation rule prohibiting employees at the
workplace from union solicitation is considered overly
broad and violative of the right to self-organization.
- It is presumed invalid because the rules are overly broad
[during working hours or working time, or withing company
property].
- The rule is susceptible of an interpretation by the
employees that they were prohibited from engaging in
protected activity during their free time [break periods or
meal times] or at so-called neutral areas like comfort
rooms, cafeteria, dressing or locker rooms; these are not
work places and non-work related conversations may take
place in these areas and during these times.
- You cannot prohibit them from talking about union during
free time and within neutral areas.
2. Even though this is presumed invalid, evidence may
be introduced to overcome the presumptive invalidity
or validity of the no solicitation or no distribution rule.
These are evidence that would nullify an otherwise valid
solicitation rule or will make an otherwise presumptively invalid
rule because it is overarching and too broad.
Ex:
- If solicitation causes constant bickering between the pro-
union and anti-union employees, evidence may be
introduced to show that the rule is necessary to maintain
production or discipline.
- A valid no solicitation rule may be unlawful if the employer
simultaneously permits employees to engage during
working hours in extensive solicitation for charitable and
other purposes or in solicitation on behalf of a certain
union or unions among a group of rivals or competing
unions or in any union activities.
Sobrosa
- A term in Industrial relations which refer to when the union
organizer tells the employees to bring more people.
- Things are underground, and not out in the open because
the union is still a very insignificant minority. They might
just be barred.
Employer cannot prevent employees from wearing union
arm bands or caps with “Union kita” and inviting others to
join the union
- That symbolic speech cannot be prevented by the
employer.
- The employer cannot interfere with the exercise of the
right to self-organization.
- The employer can only stop union speech if it goes against
or threatens valid and legitimate business interest of the
employer. You cannot allow the union to talk at the
assembly line while they are at the assembly.
- But during the breaks, the management cannot dictate
what will be the conversation there. The management
cannot enact a law which dictates what the conversations
are. You can solicit union membership during that time.
XPNS to the General rules:
3. In department stores, the general rule against
applying no solicitation rules to employees
nonworking time does not apply and the reason is the
presence of patients or customers in the working
areas, the cafeteria, like the corridors, the lobby, the
comfort rooms.
4. Hospitals are justified in limited employee solicitation
and distribution rights even during nonworking hours
but only in patient care areas, and the reason, the
need to provide a tranquil atmosphere for the patient.
The patients should be saved from dissenting
exchange among employees.
- These might be misunderstood by the by
customers/employees and this might cause alarm that is
not warranted in hospitals.
5. Distribution of union literature by employees on
company property may not be prohibited by rule in
non-working areas and during non-working time.
- The union can distribute flyers during non-working time
even if it is within company premises as long as it is within
neutral areas.
- However, the distribution may be prohibited in neutral
areas if there are safety concerns [littering].
6. Distribution of union literature by non-employee union
representatives within the company premises may be
prohibited.
- A union organizer who is not an employee of the employer
is not allowed to go inside the work premises because he
is not an employee and he does not have the right to self-
organization vis-a-vis the company.
- A retail store's parking lot, even if it is open to the public, is
not in the nature of public property if it is owned by the
company and a union does not have a free speech right to
enter it to solicit employees.
7. In situations where company property is isolated from
a larger community (like agri-business mining
companies), as in the case of company-owned towns,
ships, lumber camps, and the like, and employees
cannot be reached outside the premises, union
organizers must be allowed reasonable access to
company property.
- The employees also live within the company property.
- Their right to self-organization is practically rendered
nugatory if they are just left to themselves.
- They have no knowledge; they have no experience. In
these kinds of isolated workplaces the employer cannot
prevent union organizers from entering the company
premises.
GR: Management can keep out union organizers from the
company premises. Union organizers do not have ER-EE
relationship with the management.
XPN: Isolated workplaces
However, in so called isolated workplaces, like agribusiness
or mining, the management cannot keep out union organizers.
The employees also live at the work site and if they cannot be
approached by the union organizers then the right to self-
organization is practically impossible to exercise. That is why
they cannot be prevented from entering these isolated
workplaces.
Right prohibition policy by the employer
The correct no solicitation rule should provide that there shall
be no union solicitation or union talk at the workstation during
actual working time [specific and not broad].
Workplaces with neutral areas wherein union solicitation
can be prohibited
1. Shopping malls/department stores; and
2. Hospitals.
Union not prohibited from distributing flyers at the exit
point of the company premises
Handbills/flyers is the best way to communicate what a union is
about. Prohibitions against distributions of union literature
solicitation cannot be prohibited at the exit/entrance. However,
if it creates some form of physical risk of danger or injury, then
the company can prohibit the distribution thereof.
Distributing handbills/flyers to the workers as they exit from the
workplace is allowed since it is already outside the premises. It
is covered by the employees’ freedom of speech. The
employer cannot do anything about it because it is no longer
within the workplace.
However, if employees would just throw the handbills, resulting
to clutter and danger causing people to slip and slide, the
employer becomes negligent if he will not do anything about it.
The employer has the duty to make the workplace safe.
ULP by Labor Organization
Article 260. Unfair Labor Practices of Labor Organizations.
It shall be unfair labor practice for a labor organization, its
officers, agents or representatives:
(a) To restrain or coerce employees in the exercise of
their right to self-organization. However, a labor
organization shall have the right to prescribe its own
rules with respect to the acquisition or retention of
membership;
ULP by labor organization/union
1. Restrain; or
2. Coerce.
Restraint or oercion
- Art. 260(a) is a generic description of ULP committed by
labor organizations.
- ULP on the part of the labor organization is actual restraint
or coercion.
- Labor organizations can interfere in your right to self-
organization and it is not ULP.
- Interference by the union is not ULP. Suppose the union
keeps on asking the employee “Are you pro-union? Which
 union will you vote?” and the employee does not answer.
That is not ULP even if the union is badgering him. The
union has the right to campaign for their worker’s
allegiance.
It is only when the union is threatening the employee with
a crime that speech becomes restraint and coercion, or
ULP.
- Threatening a co-employee that he will be cut-off from the
clique or that no one will talk to him if he does not join a
certain union is not ULP. It does not amount to a crime
[non-actionable threat].
- However, it is ULP if the union tells another co-employee
“We know where you live, and you go home at night and
it's dark. Somebody might just smack you on the head and
that will be the last day of your life.” That is a veiled threat
of murder and is already a crime and ULP [actionable
threat].
- The making of false promises by a union to an employee
is not ULP. These are exaggerations since they are
running in the election, and they want to win. [ex: we will
give one car for evert union member if we win the
certification election].
- A union has the right to prescribe its own rules with
respect to the acquisition or retention of members.
However, once a labor union has a union security
agreement, then the membership in a union does not
become the sole concern of the union. It is now replete
with public interest.
(b) To cause or attempt to cause an employer to
discriminate against an employee, including
discrimination against an employee with respect to
whom membership in such organization has been
denied or to terminate an employee on any ground
other than the usual terms and conditions under which
membership or continuation of membership is made
available to other members;
Discrimination
- Article 260 (b) is violation of union security clause.
- If a union does not have enough reason to expel an
employee and it has no evidence, then it goes to the
management and forces the management to terminate an
illegally expelled union member, then it commits ULP
under 260 (b), he caused the employer to discriminate
against a union member.
- It is ULP when there is unjust expulsion of union members
and the union subsequently compel the employer to
terminate the expelled employee from employment.
(c) To violate the duty, or refuse to bargain collectively
with the employer, provided it is the representative of
the employees;
Violation of duty of union to bargain collectively
- Refusal to comply with the duty to bargain is ULP.
- Art. 260(c) provides that it is the representative of the
employees that violates the duty to bargain.
- Unless you are the exclusive bargaining agent, you cannot
demand negotiation.
- There is no refusal to bargain/ULP if it is not a mandatory
subject of bargaining [outside the terms and conditions of
work].
(d) To cause or attempt to cause an employer to pay or
deliver or agree to pay or deliver any money or other
things of value, in the nature of an exaction, for
services which are not performed or not to be
performed, including the demand for fee for union
negotiations;
Kickback
An example would be is that if the union says “if you want your
cargo to be safe, you better contribute to the fund of the union;
otherwise, we cannot guarantee the safety of your cargo.” The
employer is forced to pay for service that is not rendered. The
employers will pay them so the union will not destroy the cargo.
That is ULP.
(e) To ask for or accept negotiation or attorney’s fees
from employers as part of the settlement of any issue in
collective bargaining or any other dispute;
Distinction between Art. 259(h) and Art. 260(e)
Art. 259(h) Art. 260(e)
ULP by Employer Labor Organization
How Payment Mere asking
committed
Requisites of ULP under Art. 260(e)
(1) The union or any of its officers, agents or
representatives commit either of the following acts:
a. To ask for negotiation fees or attorney’s fees; or
b. To accept negotiation fees or attorney’s fees.
- When the union, its officers, agents or representatives are
held guilty of ULP from the very moment they “ask” for
negotiation fees or attorney’s fees from the employer.
Under this situation.
- There is no need to prove that the employer has
succumbed and given in to the union’s demand.
(2) The negotiation fees or attorney’s fees are demanded
from, or given by, the employer as part of the settlement of
any issues related to collective bargaining or any other
dispute.
- There is a need to prove that the union “asked for” or
“accepted” the payment to it of the negotiation’s fees or
attorney’s fees by the employer, as principal consideration
for the settlement of any issues affecting labor
management relations, or even if not a principal
consideration, as part of the settlement of any such issues,
chief of which are issues affecting collective bargaining.
(f) To violate a collective bargaining agreement.
- It must be gross violations of economic provisions in the
CBA.
- Gross violation is the malicious or flagrant refusal to
comply with the CBA.
The provisions of the preceding paragraph
notwithstanding, only the officers, members of
governing boards, representatives or agents or
members of labor associations or organizations who
have actually participated in, authorized or ratified
unfair labor practices shall be held criminally liable.
- The union is a juridical person.
- Criminal liability is personal. The corporation cannot be
held criminally liable because criminal liability is individual
in nature.
- When the ULP has already ripened into a criminal case,
the criminal liability devolves to individual or natural
persons.
- It is the officers, representatives, agents, members of labor
associations or organizations who become criminally
liable.
ULP by Third Parties
Non-abridgment of right to self-organization
ART. 257. [246] Non-Abridgment of Right to Self-
Organization. – It shall be unlawful for any person to
restrain, coerce, discriminate against or unduly interfere with
employees and workers in their exercise of the right to self-
organization.
Such right shall include the right to form, join, or assist labor
organizations for the purpose of collective bargaining
through representatives of their own choosing and to
engage in lawful concerted activities for the same purpose
for their mutual aid and protection, subject to the provisions
of Article 264 of this Code.
ULP by third parties
1. Restrain;
2. Coerce;
3. Discriminate against; or
4. Unduly interfere.
Ex: A mayor has a nephew who finished high school. The
mayor goes to a factory and asks the manager to
accommodate his nephew. The nephew got accepted but after
6 months, the manager calls the mayor and tells him that his
nephew started a strike in the factory. The mayor got mad and
had his nephew arrested by the police. The mayor [third party]
prevented the nephew from exercising his right to self-
organization. The mayor can be charged with ULP under the
Labor Code and also under felonies under the RPC [heavier
penalties].
Strikes and Lockouts
ART. 278. [263]. 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 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.
Article 219 [212] Definitions.
(l). Labor dispute includes any controversy or matter
concerning terms and conditions of employment or the
association or representation of persons in negotiating,
fixing, maintaining, changing, or arranging the terms and
conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and
employee.
(o). Strike means any temporary stoppage of work by the
concerted action of employees, as a result of an industrial or
labor dispute.
(p). Lockout means any temporary refusal of an employer
to furnish work as a result of an industrial or labor dispute.
(q) Internal union dispute includes all disputes or
grievances arising from any violation of or disagreement
over any provision of the constitution and by-laws of a
union, including any violation of the rights and conditions of
union membership provided for in this Code.
(r) Strike breaker means any person who obstructs,
impedes, or interferes with by force, violence, coercion,
threats or intimidation any peaceful picketing by employees
during any labor controversy affecting wages, hours or
conditions of work or in the exercise of the right of self-
organization or collective bargaining.
(s) Strike area means the establishment, warehouses,
depots, plants or offices, including the sites or premises
used as run-away shops, of the employer struck against, as
well as the immediate vicinity actually used by picketing
strikers in moving to and for before all points of entrance to
and exit from said establishment.
Forms of peaceful concerted activities
1. Picketing – The right of workers to peacefully march to
and from an establishment involved in a labor dispute
generally accompanied by the carrying and display of
signs, placards, and banners intended to inform the public
about the dispute.
2. Strike – Any temporary stoppage of work by the concerted
action of employees, as a result of an industrial or labor
dispute. It includes slowdowns, mass leaves, sit downs,
attempts to damage, destroy or sabotage plant equipment
and facilities and similar activities.
3. Lockout – Any temporary refusal of an employer to
furnish work as a result of an industrial or labor dispute.
Both strikes and lockouts are temporary. If it is permanent,
then it already involves closure.
Right to strike as a statutory right
- A strike when conducted legally, no matter how long it
lasts, the employee does not cease to be an employee.
The employer-employee relationship is not suspended
because it is one of the statutory rights provided in the
Labor Code.
- The right to strike flows from the right to self-organization,
the workers do not lose their employment status just
because they withhold their labor temporarily. They
continue to be employees of the employer. Only they are
temporarily withholding their labor.
- Strike provisions in the Labor Code are not interpreted in
favor of labor in cases of doubt because it disturbs the
peace and order of society. The court does not look with
liberality with the rule to strike whenever there is some
disturbance that occurs with respect to the larger society.
Elements of a strike
1. Temporary work stoppage
- Destruction of property is not temporary. It is permanent
and hence it is not a strike. It is sabotage by the
employees.
- When the employees would stop the work by ruining the
machines, it is not a strike but a felony [destruction of
employer’s property to the detriment of the employer].
- Temporary stoppage of work means that the workers
themselves stopped working and they instead parade and
protest outside informing the public of their dispute with
the management.
- The carrying of placards is by itself not included in the
definition of “strike”. What is included in the definition of
strike is only the “work stoppage” which is temporary, and
it is result of industrial and labor dispute.
Constitutional right to peaceably assemble and petition
the government for redress of grievance
The pretension of their employer that it would suffer loss or
damage by reason of the absence of its employees from 6
o'clock in the morning to 2 o'clock in the afternoon, is a plea for
the preservation merely of their property rights. Material loss
can be repaired or adequately compensated.
The primacy of human rights freedom of expression, of
peaceful assembly and of petition for redress of grievances
over property rights has been sustained. To regard the
demonstration against police officers, not against the employer,
as evidence of bad faith in collective bargaining and a cause
for the dismissal from employment of the demonstrating
employees, stretches unduly the compass of the collective
bargaining agreement, is a potent means of inhibiting speech.

2. Concerted action of the employees
- There must be more than one employee.
- There must be collective action in a group.
- It is the collective labor organization that is the
legitimate and exclusive bargaining agent that
exercises the right to strike.
- There is a need to file a new notice of strike when there is
a change of union.
3. Industrial or labor dispute
- Any controversy or disagreement concerning the right to
self-organization, working conditions, or collective
bargaining, or as to the issue of representation.
- When jeepney drivers stop driving their vehicles because
of price fuel increase [transport strike], that is not a strike.
It is not about the worker’s right to self-organization and
terms of conditions of work. The employer cannot control
the increase in fuel prices. It is not an industrial/labor
dispute.
- Picketing such as bringing placards is not in itself a strike.
The weightier right is this constitutional right and property right
of management can always be sacrificed. The work stoppage
occurred not because it was intended but because they were
not there since they were exercising their constitutional right.
There was no intention to stop the work. Their intention was to
petition the government for redress of grievances and as a
consequence there was no work. There is no illegal strike.
(Philippine Blooming Mills Employment Organization vs.
Philippine Blooming Mills Inc. and CIR)
Merely supporting the union president in the investigation
is not a strike
The mass gathering of employees, lasting for more than an
hour during office hours, inside office premises and within a
unit tasked to hear an administrative case, to protest the
prohibition against the appearance of their leader as counsel in
the said administrative case falls within the purview of the
constitutional guarantee to freedom of expression and peaceful
assembly; thus, it did not amount to a “prohibited concerted
activity or mass action”.

4. Direct intention of work stoppage The Supreme Court said that there is no strike, since they are
- The work stoppage must be directly intended and must not merely giving moral support to the union president. There was
be side effect of a valid exercise of another right, no illegal strike because the work stoppage was not directly
- Jurisprudential element cited in Philippine Blooming Mills intended.
Employment Organization vs. Philippine Blooming Mills
Inc. and CIR. It was held that the employer cannot stop the Grounds for strike
employees from exercising their right to peaceably 1. ULP; or
assemble for redress and grievance. The work stoppage 2. CBA bargaining deadlock.
resulting from the employees exercising their right was
only a by-product and was not intended by the workers.
- The Supreme Court enunciated that it does not constitute Distinction: strike and picket
a strike when there is temporary stoppage of work by Strike Picket
workers for a day and it is clear that there is no intention to Basis Statutory right Constitutional
really stop work, but that the stoppage of work is a right
byproduct of another legal act that they (workers) do (e.g. Part of Right to self- Freedom of
march to Malacañang in the exercise of their civil right as organization speech
in the PBM case). Whether it YES NO
- If it is 1 day then it is not a strike, they are just exercising has
their right which is a privilege in the Constitution - requisites
peaceably assemble to petition the Government to redress
Exercised Collective group/Union Individual/
grievances. But the moment that they extended for 1
by collective
month, or 2 months, SC said that that is no longer an
ER-EE YES NO
unintended result of a privileged right exercised. That has
relationshi
become strike and teachers who perpetuated the strike the
p
may be dismissed by the Secretary.
- To have strike, work stoppage must be intended and not May be YES NO. Freedom of
merely a by-product of doing something legal. enjoined by speech does not
authorities admit prior
restraint.

- The carrying of the placards does not say whether there is
work stoppage or not, but work stoppage is the essential
element that has to be fulfilled for there to be a strike.
- Peaceful picketing is part of the freedom of speech. That
the language employed by the picketers is far from being
courteous and polite does not give rise to a cause for libel
and damages [privileged speech]. The employee still
cannot be liable for libel even if the name of the
officers/managers was mentioned in the placard.
affordable or within financial reach of the employer to
grant
Even if the demand that caused the deadlock is impossible to
grant on the part of the employer, the strike cannot be said to
be based on a trivial ground.
The legality of a strike is not dependent on the reasonableness
of the economic demands because most of the labor standards
benefits now used to be impossible to grant when they were
pursued. Triviality of the ground is not dependent on
affordability of the demand on a deadlock strike.

Requisites of a valid legal A strike to secure better terms and conditions of employment is
a legitimate labor activity recognized by law, and its legality
strike does not depend on the reasonableness of the demands. If
they cannot be granted, they should be rejected, but without
Negative substantial requisites
other reasons, the strike itself does not become illegal.
1. The strike must not be based on intra or inter-union
dispute.
4. It should not be based on wage distortion.
- No labor union may strike and no employer may declare a
Slowdown is a strike.
lockout on grounds involving inter-union and intra-union
disputes. (ART. 278. [263])
Wage distortion
- If the losing union in a PCE strikes, it is not a valid ground
The salary of the regular union workers was no longer any
[inter-union dispute].
different from the probationary workers who are not yet part of
- If there is a fight between two factions in the union in the
the union because they were beneficiaries of a wage order.
election of union officers [intra-union dispute], is not a valid
There is a wage distortion and management does not act on it.
ground for a strike.
The union members assail that management is not doing
anything; they make us know that our membership in the union
2. The strike cannot be based on the violation of the CBA
is not worth it. That is why the union declares a strike.
except if the violation of the CBA is gross in character,
mainly flagrant and or malicious refusal to comply
The SC held that in the particular instance of distortions of the
with the economic provisions of the CBA.
wage structure within an establishment resulting from "the
- If there is ambiguity or multiplicity of interpretations, then it
application of any prescribed wage increase by virtue of a law
can no longer be flagrant and/or malicious refusal to
or wage order," Section 3 of Republic Act No. 6727 prescribes
comply with the economic provisions.
a specific, detailed and comprehensive procedure for the
- There are very few strikes based on the unfair labor
correction thereof, thereby implicitly excluding strikes or
practice of violation of the CBA because there are very few
lockouts or other concerted activities as modes of
provisions in the CBA with an unambiguous and clear
settlement of the issue.
terminology.
When the legislature outlines the remedy for wage distortion,
3. The strike must not be based on trivial grounds.
both in the organized sector and in the non-organized sector, it
It must be based on serious grounds.
is providing you with all the avenues and remedies to resolve
this particular controversy. So, you cannot make use of a
Reliance Surety & Insurance Co., Inc. vs. NLRC
strike. You must follow these remedies. If it is organized, then
you present a grievance and if you still cannot resolve, you go
Management decided to re-shuffle the positions. In the re-
to voluntary arbitration. (Ilaw at Buklod ng mga Manggagawa
shuffling of positions, the president of the union was placed
(IBM) sa San Miguel Corporation vs. NLRC)
near the comfort room. He filed a notice of strike because of
that. The SC held that the ground for strike was trivial, which
Positive substantial requisites
was when the president of the union was placed in such
1. The strike must be based on either a CBA deadlock or
inconvenient position that he was witness to the comings and
ULP.
goings of people due to natural necessity.
CBA deadlock ULP
There is no question, finally, that the strike itself was prompted
Disagreement in the List of ULPs. The list of ULP
by no actual, existing unfair labor practice committed by the
interpretation of the CBA in the Labor Code is not
petitioner. In effecting a change in the seating arrangement in
that is already made, ratified exhaustive [only the
the office of the underwriting department, the petitioner merely
or enforced. common ways where ULP is
exercised a reasonable prerogative employees could not
committed].
validly question, much less assail as an act of unfair labor
practice. The Court is indeed at a loss how rearranging
furniture, as it were, can justify a four-month-long strike. Collective Bargaining Deadlock
- The situation between the labor and the management of
the company where there is failure in the collective
Carlos Milling company vs. CIR
bargaining negotiations resulting in a stalemate.
- Complete blocking or stoppage resulting from the action of
The requirement that the ground of strike must not be a
equal and opposing forces.
trivial ground does not mean that it must be economically
- Synonymous with impasse.
- Presupposes reasonable effort at good faith bargaining, outlaw strike. If violence just the management itself that is
which despite noble intentions, does not conclude in erupts, then find out who is responding violence. If this
agreement between the parties. responsible. happens, they are in pari
The liability/responsibility delicto. Both management
Economic strike is individual in nature. and the union are equally
It is only in labor standards that management is obliged by law applying violence and the
to grant that benefit. Higher than labor standards, management law will leave them as they
has no legal obligation. Labor relations practices call that strike are to suffer their own loss.
an “Economic Strike”.
Only pervasive violence can make the strike illegal
If a union engages in an economic strike by asking from - An otherwise legal strike which begins legally can turn and
management something that the management is not legally become illegal because the violence can turn into
obliged to grant, then management has a right for the pervasive. But a strike that has begun by pervasive
duration of the strike to find replacements because it has a violence and is continued, it is illegal, and it cannot turn
right to continue with its valid and just and legitimate and become legal.
operations. It has done nothing wrong. It’s just not giving in to - There is only one way of transformation: A strike is legal
the demand which is over and above what the law obligates and then because of violence that is pervasive, it becomes
him. It has the right to continue in operation. illegal.

2. It must be based on serious grounds. Negative procedural requisites

- It must not be trivial. 1. The strike must not have violated the duty to bargain.
- Strike must be the last resort and not the first instance - You cannot go on strike unless you have participated in
remedy. the sessions that are initiated by the National Conciliation
and Mediation Board (NCMB).
3. The purpose and the means are lawful. - The purpose of the cooling off period which follows after a
- The mere occurrence of violence does not make the strike strike notice is filed is to give a chance to settle the labor
illegal. dispute amicably, instead of going on a destructive and
- Unlawful means normally include pervasive violence. disruptive strike.
- A strike/lockout is illegal is unlawful means were employed - A strike declared by union to enforce certain economic
or prohibited acts were committed [use of force, violence, demands without first having given the management
threats, or coercion, barricades, blockades and obstruction reasonable time and opportunity to act on them has been
of ingress/entrance or egress/exit from the company held as premature and illegal.
premises.
- But the union members or the strikers can use proportional 2. There must be no compulsory or voluntary arbitration
force to defend their right to life, liberty, or property. of the labor dispute.
- Strikers have the right to use proportionate force to inspect - If the ground for strike is ULP, that can be a subject of
vehicles for scabs/replacement workers. They have the compulsory arbitration which the LA has jurisdiction
right to prevent others from taking their place, but it is no over. The LA must be free to discover the factual basis
longer proportionate force if the strikers overturn the and his decision on his factual finding. A strike may
vehicle damage the same. pressure the LA to act in his favor.
- If the labor dispute is based on deadlock and it is already
Sporadic violence Pervasive violence with the voluntary arbitrator, you can no longer declare a
Violence that is occurring at Violence takes the entirety strike of that deadlock even if the deadlock is a ground for
irregular intervals or only in of the strike. From the strike.
a few places; scattered or beginning there is already a - If the controversy or the ground for the strike is already
isolated. direction towards violence. before the Labor Arbiter or the Voluntary Arbitrator, that
The strike is begun with cannot be the ground for the notice of strike that is found
violence, sustained with because you cannot bring a controversy to two different
violence, and it is forums. That is forum-shopping.
maintained with violence. - After the union has filed a notice of strike, the union
steward himself files an illegal dismissal complaint. The
Striking workers come with union must withdraw its notice of strike because now there
weapons, carrying bats, is compulsory arbitration of the dispute. You cannot wage
carrying knives, carrying a strike over the same controversy that is now with
anything that could easily compulsory or voluntary arbitration.
precipitate them to acts of - If the union officers file an ULP dismissal case to the labor
violence. And then when arbiter, the labor dispute has now been submitted to
that occurs, when violence compulsory arbitration. The union cannot go on strike
occurs, then there is a anymore. The ground for strike has already been
participation of people. It’s submitted to compulsory arbitration.
already difficult to see and - However, you can file a notice of strike on a different
determine who participated ground.
because everybody is in the - If you have 15 people who were summarily dismissed by
act of violence. the company and 14 of them filed an illegal dismissal
Strike can likely produce It involves the union itself complaint, but there is 1 left who did not file, that can be
violence and yet it did not organizing the violence or used as a ground for strike.
- For every worker that is dismissed for his union activities Unorganized: Any LLO but
or as a consequence of his union activities, that is unfair only ULP strike. [deadlock
labor practice. There are as many unfair labor practices as strikes are impossible in
there are employees that are affected and you can file a unorganized
notice of strike for every single one that is not brought for establishments].
compulsory or voluntary arbitration. When to file ULP strike: Within 15 days
- There are as many causes of action as there are before strike.
complainants.
Deadlock strike: Within 30
3. There must be no violation of the no-strike clause. days before strike.
- A union may agree to a no-strike clause in the CBA Where to file Regional office of DOLE and
because in exchange, the management also agrees to a NCMB. But you must serve
no lock-out clause. the notice to the other party
- The no strike-clause is a mandatory provision in the CBA. concerned.

Distinction between strike and lock-out

Strike Lockout (d) The notice must be in accordance with such
Made by Union Management implementing rules and regulations as the Minister of Labor
Purpose To compel To compel the union and Employment may promulgate.
management to to accept
accede to its management’s Sufficiency in form and substance of a strike notice
demands. demands. Deadlock/economic strike ULP strike
The strike notice must contain the following:
Effect Temporary work Withholding of work - Running items of - The narration of acts or
stoppage negotiation. omissions that
- All the items in the constitute ULP which
No-strike clause No-lockout clause negotiation that have will enable the
The union will not conduct a Management will not fire been agreed upon and management to come
strike to force management people in order to compel all the items that have up with his defense
to accede to its demands. the union to accept its not yet been taken up. [similar to an
demands. - The deadlock items, information].
Only covers bargaining which were not agreed - If it is vague, there is no
deadlock/economic strikes will no longer proceed way that the
and not ULP strikes. with the negotiation. management can
- The strike notice must prepare adequately for
No-strike clause does not cover ULP strikes explain why the union is his defense.
A no-strike clause covers only no strike on deadlock bargaining against the offers of
strikes. It does not cover unfair labor practice strikes. If the management.
employer commits unfair labor practice, the no-strike clause - The bargaining
does not defend the employer who has committed unfair labor proposals as originally
practice. So you can still go on strike on the grounds of unfair submitted must be
labor practice. Otherwise, if no-strike clause would include attached to the strike
ULP, it opens the floodgates for an employer commit ULP notice.
because the union can no longer go on strike. - It must be signed by the
officers of the union.
The union asking for minimum wage is making a legal demand The strike notice must be filed under oath and verified.
not an economic demand. There is no need to form a union for Verification is for purposes of perjury and by verification
that purpose since it is only a sweetheart contract, or a contract because you are putting your liberty at stake and your
that merely grants labor standards benefits that are already prejudice at issue.
granted by the law. Effect of insufficiency of the form and substance of the
strike notice
Positive procedural requirements [Art. 278] It is as if there is strike notice that was filed and thus
1. There must be a strike notice. rendering the strike illegal.
- The strike notice must be filed with the DOLE regional
office to determine the sufficiency of the strike notice. The A copy of the strike notice must be given and signed by
strike notice must be sufficient in form and substance. the:
- It is the union that originates the strike notice.  Employer;
- The strike notice is signed by the union president and is  DOLE; and
attested by the treasurer or secretary or both of the union.  NCMB.

Strike notice Interpretation of strike law in cases of doubt

Who can file Organized: Only the
certified EBA [strikes by
minority union is illegal].
- A strike law is not interpreted in favor of labor in cases of
doubt since it disturbs ER-EE relationships and affects the
general society.
- A strike is inimical to the welfare of the wider community
which has a right to a modicum of peace and tranquility.
- It is the only section of the labor code that is not
interpreted in favor of labor in case of doubt.
Privileged information during conciliation proceedings
Article 239. Privileged Communication. Information and
statements made at conciliation proceedings shall be
treated as privileged communication and shall not be used
as evidence in the Commission (NLRC). Conciliators and
similar officials shall not testify in any court or body
regarding any matters taken up at conciliation proceedings
conducted by them.
- During conciliation proceedings, the management can
utter all sorts of threats and promise of reward and it will
not constitute unfair labor practice. The management
cannot be prosecuted for ULP since it is done during
conciliation and mediation wherein the information and
statements are privileged.
- To determine the sufficiency and formal substance of the
strike notice, it must be filed with the DOLE to remove it
within the scope of privileged information. The DOLE must
participate as a witness.
- It is not the NCMB’s duty to bring the case to the DOLE
since their duty is under Art. 239 which is to keep the
information confidential during conciliation proceedings.
Duration of strike notice
A strike notice is good for the ground that it is based on. For as
long as the ground or cause is still obtaining, then you still have
the right to strike. If you have complied with all the requisites,
you can still go on strike. The strike vote is valid for the
duration of the dispute on substantially the same grounds.
Withdrawal of strike notice is equivalent to waiver
The withdrawal of the strike notice is an equivalent of a waiver
to of the right strike on such ground. The union can no longer
go on strike on that ground since they have waived their right
to strike by withdrawing the strike notice.
The union makes an announcement to the management that
they are lifting picket lines and that they are returning to work
unconditionally. The management has no choice but to accept
all those who are returning to work from the strike. The strike
does not suspend employee-employer relationship because it
is a right granted under the Labor Code.
2. The cooling off period must be followed.
(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.
(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.
Cooling off period
Deadlock strike ULP strike
30 days 15 days
- Begins from the time the strike notice is delivered to the
other party.
- During the cooling off period, you examine the ways by
which you can eliminate the strike or the ways in which
you can arrive at an amicable settlement.
- The cooling off period of bargaining deadlock strikes is
twice longer than ULP strikes because in ULP strikes, the
ULP is a direct attack on the right to self-organization.
- The days refer to calendar days. If the 15 th day falls on a
holiday, the next working day is the end of the cooling off
period.
- The cooling off period is mandatory. It is only after the
lapse of the cooling off period that the union can go on
strike. A shortage of even 1 day can render the strike
illegal. The pre-requisites for a strike are strictly interpreted
against the union.
Shuttle conciliation
- The conciliator will go to the union and get their demands
and thereafter go to management and bring
management’s response.
- In order to avoid the already tense disagreement between
the parties.
3. There must be a strike vote.
(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.
- The union must take a strike vote which must be majority
of all the members of the union because the right to strike
is with the union as the organization representing the
employees.
- A notice of taking a strike vote 24 hours before the vote
must be given to the DOLE.
- The DOLE has the choice to preside over the voting or to
just be a witness and allow the union to run the strike vote
and observe the conduct thereof. The DOLE can also
neither observe nor preside.
- The 24-hour notice of strike vote is mandatory, without it
the strike vote is invalid.
- The taking of the strike vote is conducted by secret ballot
so that each employee can freely express himself as to
whether he is willing to go on strike.
- A return of the strike vote is submitted to the DOLE by a be based on the compulsory or
union or the presiding officer. This report must be given to violation of the voluntary
the DOLE. CBA except if the arbitration of the
- A strike vote may be conducted during the cooling off violation of the labor dispute.
period. CBA is gross in 3. There must be no
character, mainly violation of the no-
4. The 7-day waiting period must be followed. flagrant and or strike clause.
In every case, the union or the employer shall furnish the malicious refusal
Ministry the results of the strike vote at least 7 days before to comply with
the intended strike or lockout, subject to the cooling-off the economic
period herein provided. provisions of the
- The 7-day waiting period is to afford a union member to CBA.
protest if he is dissatisfied with the procedure of the taking 3. The strike must
of the strike vote. not be based on
- If there was machination, irregularity in the taking of the trivial grounds.
strike vote then the members will file a protest with the 4. It should not be
department of labor. The Department of Labor will again based on wage
probably retake the strike vote. distortion.
- The 7-day waiting period is considered as an extension or 5. Even if the
addition to the cooling off period. demand that
caused the
Distinction between cooling off period and waiting period deadlock is
Cooling off period Waiting period impossible to
The last final opportunity to To give a chance to grant on the part
prevent a strike by arriving members of the union to of the employer,
at an amicable settlement examine the results of the the strike cannot
between the parties. strike vote and file a be said to be
complaint if need be with the based on a trivial
Department of Labor if there ground.
is an irregularity in the Positive 1. The strike must 1. There must be a
conduct of the strike vote. be based on strike notice.
either a CBA 2. The cooling off
deadlock or ULP. period must be
Procedural requisites of a valid strike vote 2. It must be based followed.
(1) It must be based on a valid and actual ground; on serious 3. There must be a
(2) A notice of strike must be filed with the NCMB-DOLE; grounds. strike vote.
(3) A notice must be served to the NCMB-DOLE at least 24 3. The purpose and 4. The 7-day waiting
hours prior to the conduct of strike vote, and the date, the means are period must be
place and time thereof; lawful. followed.
(4) A strike vote must be taken where majority of the 5. Compliance with
members of the union obtained it by secret ballot in a the duty to
meeting called for the purpose must approve it. conciliate and
(5) A strike vote report should be submitted to the NCMB- mediate during
DOLE at least 7 days before the intended day of strike; the cooling off
(6) The cooling off period is 15 days from the filing of notice of period and
strike for ULP and 30 days for deadlock strike [except beyond such
union busting] should be observed; and period.
(7) The waiting period/strike ban for 7 days from the
submission of the strike vote report to the NCMB-DOLE Illegal strikes
should be observed. - One that was conducted in violation of any of the
substantial and procedural requirements of the labor code
5. Compliance with the duty to conciliate and mediate for a legal strike. There can be no substantial compliance.
during the cooling off period and beyond such period. - In illegal strike, the leaders who voted for, assented to, or
Even if you are already in the progress of a strike, for as long endorsed the strike losses their employment. But the
as the conciliator and mediator summons you for conciliation, ordinary rank-and-file workers of the union/participants
you have to attend. That is part of the duty to bargain even who merely participated in the strike cannot be dismissed.
when the strike is in progress. - If the employer is guilty of illegal lockout and the employee
is guilty of illegal strike, the illegal striker becomes in pari
delicto with the employer.
Summary: Requisites of a valid legal strike
Substantial Procedural Philippines Inter-Fashion vs. NLRC
Negativ 1. The strike must 1. The strike must
e not be based on not have violated In view of the undisputed findings of illegal strike on the part of
intra or inter- the duty to the 114 employees and illegal lockout on petitioner's part, both
union dispute. bargain. parties are in pari delicto and such situation warrants the
2. The strike cannot 2. There must be no restoration of the status quo ante and bringing the parties back
to the respective positions before the illegal strike and illegal
lockout through the reinstatement of the said 114 employees.
If the employer is guilty of illegal lockout
WON striker guilty of Effect
illegal strike
YES Reinstatement without
backwages.
NO Reinstatement with
backwages.
When a strike is illegal [not exhaustive]:
1. Without complying with the procedural but mandatory
requirements;
2. Based on non-strikeable or invalid grounds;
3. Without first having bargained collectively;
4. Without submitting the issues to grievance machinery or
voluntary arbitration or the steps in grievance machinery
are not exhausted;
5. If the issues involved are already subject of compulsory or
voluntary arbitration/conciliation;
6. During the pendency of a case involving the same grounds
cited in the notice of strike;
7. In defiance of an assumption or certification or return to
work order;
8. After the conversion of the notice of strike into a preventive
mediation case;
9. Against the prohibition of law;
10. By a minority union;
11. By an illegitimate union;
12. By dismissed employees;
13. As protest rallies in front of government offices;
14. As welga ng bayan;
15. If unlawful means were employed or prohibited
acts/practices were committed;
16. If staged in violation of the no-strike no lock-out clause;
17. If staged in violation of a TRO or an injuction or
assumption of certification order;
18. Conducted for unlawful purposes;
19. 1 day strike without complying with the 7-day strike ban;
or
20. In violation of the rules on picketing:
a. Obstructing, impeding, or interfering with, by force,
violence, coercion, threats, or intimidation, any
peaceful picketing.
b. Conducting stationary picket;
c. Committing any act of violence, coercion, or
intimidation by picketer;
d. Obstructing the free ingress to or egress from the
ER’s premises from lawful purposes; and
e. Obstructing public thoroughfare.
- Sundays are included within the cooling off periods and
the waiting period/strike ban.
- It is not necessary that the strike must end at the 37 th or
22nd day.
- The decision to declare a strike shall be valid for the
duration of the dispute based on substantially the same
grounds considered when the date the strike or lock-out
vote was taken.
- For as long as the ground for strike is still obtaining, ULP
is still there. If it is a deadlock, the deadlock has not yet
been solved, it persists, it continues. Then, you can still go
on strike because you have already complied with all the
requisites for a legal strike.
National Federation of Sugar Workers v. Ovejera
It must be stressed that the requirements of cooling-off period
and 7day strike ban must both be complied with, although the
labor union may take a strike vote and report the same within
the statutory cooling-off period.
If only the filing of the strike notice and the strike-vote report
would be deemed mandatory, but not the waiting periods so
specifically and emphatically prescribed by law, the purposes
(hereafter discussed) for which the filing of the strike notice and
strike-vote report is required would not be achieved, as when a
strike is declared immediately after a strike notice is served, or
when - as in the instant case - the strike-vote report is filed with
MOLE after the strike had actually commenced. Such
interpretation of the law ought not and cannot be
countenanced. It would indeed be self-defeating for the law to
imperatively require the filing on a strike notice and strike-vote
report without at the same time making the prescribed waiting
periods mandatory.
In requiring a strike notice and a cooling-off period, the avowed
intent of the law is to provide an opportunity for mediation and
conciliation. It thus directs the MOLE "to exert all efforts at
mediation and conciliation to effect a voluntary settlement"
during the cooling-off period.
Improved Offer Balloting
and Reduced Offer balloting
Art. 280. [265] Improved Offer Balloting. - In an effort to
settle a strike, the Department of Labor and Employment
shall conduct a referendum by secret balloting 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

Summary of periods accept the improved offer the striking workers shall
Bargaining ULP immediately return to work and the employer shall
deadlock thereupon readmit them upon the signing of the
Strike notice 24 hours prior to taking of strike vote. agreement. [improved offer balloting by employer]
Strike vote Can be before or after cooling off
period. In case of a lockout, the Department of Labor and
Cooling off 30 days 15 days Employment shall also conduct a referendum by secret
period [from balloting on the reduced offer of the union on or before
strike notice] the 30th day of the lockout.
Waiting 7 days
period/strike ban When at least a majority of the board of directors or
Strike proper 37th day [30 + 7 22nd day [15 + 7 trustees or the partners holding the controlling interest
days] days] 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. [reduced offer balloting by union]
- The improved offer balloting can be done even on the first
day of strike since the law provides “on or before the 30 th
day.”
- It only requires at least majority [simple majority] of the
union members and not all the union members. It does not
require all the members to be present.
- From those present at the meeting, majority of the quorum
is enough to approve an improved offer.
Improved offer balloting is applicable only to:
(1) Deadlock strikes; and
(2) ULP violation of economic CBA provision.
- Improved offer balloting is not applicable to ULP strikes
without any bargaining issue. There must be a bargaining
issue for the provision to be applicable.
- It only applies to strikes involving money offers.
Employer Lockout
Requisites of a valid employer lockout:
(1) Must give a notice of lockout;
(2) Observe cooling off period;
(3) Must have a lockout mode; and
(4) Must have a waiting period.
Procedural requisites for a valid lockout
1. It must be based on a valid and factual ground;
2. A notice of lockout must be filed with the NCMB-DOLE;
3. A notice must be served to the NCMB-DOLE at least 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;
4. A lockout vote must be taken where a majority of the
members of the board of directors of the
corporation/association or of the partners in a partnership
obtained by secret ballot in a meeting called for the
purpose must approve it;
5. A lockout vote should be submitted to the NCMB-DOLE at
least 7 days before the intended date of the lockout;
6. The cooling off period of 15 days [ULP] or 30 days
[bargaining deadlock] from the notice of strike should be
followed; and
7. The waiting period/strike ban of 7 days from the
submission of the lockout vote report to the NCMB-DOLE
should also be observed.
Forms of lockouts
1. Shutdowns;
2. Mass retrenchment and dismissals initiated by the
employer; or
3. Employer’s acts of excluding members who are union
members.
- Only the employer may declare a lockout.
- If the employees went for a strike and they suddenly want
to return to work, management has the obligation to
accept them in writing.
- It is one of the rights given to the workers because they
are workers. The ER-EE relationship of employees is not
severed during a strike.
- If the employer says, “We will not accept you.” Then, the
employer is guilty of an illegal lockout.
Distinction between shutdown and lockout
Shutdown Lockout
- The plant ceases to - The plant continues to
operate. operate.
- It is a willful act of the - It is a compulsory
employer himself. stoppage of operations
as a result of a strike
and walkout.
- The employee-union
members who are
locked out are replaced
by non-union
substitutes.
Union-Busting
Union Busting: An Exception to The Requirement of
Cooling off Period
Article. 263 (c). Strikes, picketing and lockouts.
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.
- ULP by dismissal of union leaders.
- The union may strike without observing the cooling off
period since the existence of the union is in jeopardy.
Elements of union busting
(1) Dismissal from employment of union officers duly elected
in accordance with the union’s constitution and by-laws;
and
(2) The existence of the union is threatened by such
dismissal.
The following do not constituted union busting
a. Dismissal of union officers duly elected in accordance
with the constitution and by-laws but the same does not
threaten the existence of the union;
b. Dismissal of union officers not elected in accordance with
the union’s constitution and by-laws;
c. Dismissal of appointive union officers; and
d. Dismissal of ordinary union members.
Prohibited practices on
strikes and lockouts
Article 279. [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.
Prohibited practices under Art. 279(a)
1. Striking without first bargaining;
2. Striking without first filing a notice of strike;
3. Striking without conducting a strike vote; and
4. Striking after an assumption of jurisdiction order or
certification of the dispute to the NLRC by the Secretary of
Labor.
Illegal strike
It does not comply with the statutory requirements in the Labor
Code. [ex: no observance of cooling off period or no notice of
strike]
Distinction between illegal strike and prohibited practices
Illegal strike Prohibited
practices
Scope Does not comply with Where the DOLE
one or more of the either assumed or
procedural or certified the strike,
substantial but the workers
requirements of the do not stop
strike. striking.
Effect Officers who approved, Both workers and
voted, or participated in officers will lose
the strike will lose their their employment
employment status. status.
But ordinary workers
who participated in the
strike will not be
terminated.
Remedy Complaint to the labor Injunction
arbiter
Jurisdictio Labor arbiter NLRC
n corridor for the time it is harvested, processed, packed in
Jurisdiction of the Labor Arbiters and the Commission
Except as otherwise provided under this Code, the Labor
Arbiters shall have original and exclusive jurisdiction to
hear and decide, within thirty (30) calendar days after the
submission of the case by the parties for decision without
extension, even in the absence of stenographic notes, the
following cases involving all workers, whether agricultural or
non-agricultural: Cases arising from any violation of Article
278 of this Code, including questions involving the legality
of strikes and lockouts. (ART. 224. [217])
Powers of the Commission [NLRC]
The Commission shall have the power and authority to enjoin
or restrain any actual or threatened commission of any or
all prohibited or unlawful acts or to require the performance
of a particular act in any labor dispute which, if not restrained
or performed forthwith, may cause grave or irreparable
damage to any party or render ineffectual any decision in favor
of such party. (ART. 225. [218])
- In many instances, the prohibited practices do not render
the strike illegal.
- What you do is you file an injunction to stop the prohibited
practice.
- The labor arbiter does not have jurisdiction to grant an
injunction for prohibited practices, it is the NLRC that has
jurisdiction.
Requisites for the NLRC to Grant an Injunction/Restraining
Order
1. That prohibited or unlawful acts have been threatened
and will be committed and will be continued unless
restrained, but no injunction or temporary restraining
order shall be issued on account of any threat,
prohibited or unlawful act, except against the person
or persons, association or organization making the
threat or committing the prohibited or unlawful act or
actually authorizing or ratifying the same after actual
knowledge thereof;
- One should present witness/es that has actual knowledge
thereof.
- If an employee is from the management and complaining
of the blocking of the ingress or egress of the main
entrance of the employer's workplace, pictures must be
taken and have somebody stand holding a copy of the
front-page Philippine Star this will prove that it was on that
day that picture was taken.
- The union, to counter, will call the media. It will be shown
then to the latter that the gates now are open, and they will
present that in court and will claim that their evidence is
superior because the photo is taken by the media which is
a third party. The photo shows that the gates are not
closed nor barricaded as claimed to be.
- One should have evidence, counter-evidence, and
evidence to disprove the evidence of the opposing party.
2. That substantial and irreparable injury to
complainant’s property will follow;
- In a banana exporting corporation, pictures are taken on
the bananas that were not able to get out of the packing
house on the premises in time to get to the ship that will
bring the bananas to Japan and there is just a narrow
cartons, and loaded into the terminal vans and brought to
the shift.
3. That as to each item of relief to be granted, greater
injury will be inflicted upon complainant by the denial
of relief than will be inflicted upon defendants by the
granting of relief;
- Counterbalancing of evidence through preponderance of
the evidence.
4. That complainant has no adequate remedy at law; and
5. That the public officers charged with the duty to
protect complainant’s property are unable or unwilling
to furnish adequate protection.
How NLRC Construes Petitions Seeking Injunction of
Prohibited Acts in Strikes
- The burden of proof is on those complaining against the
restraining order.
- Even if the right to strike is not interpreted in favor of labor
in cases of doubt. But when it comes to
restraining/injunction the burden of proof shifts.
(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 in the exercise of the right to self-
organization or collective bargaining, or shall aid or
abet such obstruction or interference.
Prohibition Against Obstructing or Interfering vs. Peaceful
Picketing, Exercise of Right to Self-Organization, and
Aiding Obstructions or Interference
- Interfering with striking workers is prohibited especially if
you are a member of the police or the military.
- Peace officers, police and military cannot remain in the
strike zone.
- The strike zone is the immediate area surrounding the
entrance or exit of the employer.
- The right to strike is a protected right and it cannot be
interfered with.
- Interfering can be done by force, violation, coercion,
threats, or intimidation of any peaceful picketing by the
employee.
- Peaceful picketing means that the workers must be
moving. If workers are not moving, it constituted
obstruction of the ingress of egress which is also a
prohibited activity [Art. 279(e)].
- As long as you are walking, you are exercising your
legitimate right over the sidewalk.
- A union can allow others to join the picket lines.
(c) No employer shall use or employ any strike-breaker,
nor shall any person be employed as a strike-breaker.
Strike-breaker
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. [Art. 219(r)]
Scab
A scab takes the place in the workplace of a striking worker.
The employer has a right to continue operations and thus he
may employ a scab in place of the striking worker. There is no
provision in the Labor Code prohibiting the scab. What is
prohibited is a strike-breaker.
If you break the picket lines forcibly and take over the job of the
striker who has the abundant disposition to be on strike, then
you are both a scab and strike-breaker, but your offense is only
strike breaking not a scab.
A strike breaker can also be a scab, but a scab is not
necessarily a strike breaker. A strike-breaker must always be
the one who breaks the strike.
Hiring of scabs is not illegal per se
- A scab is a person who works despite an ongoing strike.
Scabs are usually individuals who were not employed by
the company prior to the trade union dispute, but rather
hired after or during the strike to keep the organization
running.
- Scabs are allowed in economic strikes, the hiring of
replacements for the strikers during a strike is not an ULP.
- Such hiring may even be done on a permanent basis in
case of an economic strike [employer not bound to fire the
scabs after].
- However, in ULP strikes, such replacements/scabs may
not be permanently employed. The employer is duty-
bound to discharge them when the strikers are reinstated
to their former positions.
(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 orders.
Public Officials, PNP, and AFP Cannot Escort
Replacements for Striking Workers or Replacement
Workers for the Workplace
- Prohibition against escorting those who will replace
striking workers.
- The strikers have the right to prevent scabs from entering.
However, if they destroyed the property of the employer to
prevent them from entering, that is destruction of property.
(e) 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.
Prohibition Against Picketers from Violence and
Obstructing Free Passage to Employer’s Premises and
Public Highways
- The strikers must have a moving picket. They cannot
prevent the property owner from using his property.
- It is illegal for strikers to put up barricades and stop
moving.
- Conducting stationary picketing is prohibited.
Strike area
Strike area 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 from before all points of entrance to and exit from said
establishment. [Art. 219(s)]
Strike area encompasses the following:
1. Establishment itself;
2. Runaway shops; and
3. Immediate vicinity actually used by picketing strikers.
Runaway shop
A runaway shop is an extended strike area. An employer struck
against may move some of his equipment to another location
to continue operations, but he should also make that location
as a strike area.
Suppose the employer transfers half of his equipment to his
residence, the workers can go to the employer’s residence to
strike. In such case, the employer cannot file an injunction
against the workers striking in his residence since his
residence has become an extension of the work premises that
can be picketed.
The employer can also open new entrances in the workplace
during a strike since it is by virtue of his acts of ownership over
the property. By doing such, it doubles the work of strikers
because they have to picket multiples entrances.
Command center
Both the union and the employer must have a command center
during a strike. For the union, it is somewhere away from the
workplace but close enough. For the employer, the command
center is within the work premises wherein he must have a
view of the strike.
Remedies against prohibited practices
1. File an ULP Complaint under Art. 224.
The jurisdiction is with the labor arbiter.
2. File a Complaint under Art. 279 in relation to Art.
224(a) for violation of prohibited practices on strikes
and lockouts.
Cases arising from any violation of Article 279 of this Code,
including questions involving the legality of strikes and lockouts
shall be filed with the labor arbiter. [Art. 224(a)]
3. File a criminal case under Art. 287
Any person violating any of the provisions of Article 279 of this
code can be meted a fine of P1000 to not more than P10,000
and or imprisonment of 3 months to 3 years. [Art. 287]
Cases to file for prohibited practices
What to file Where to file
ULP case Labor arbiters
Complaint for prohibited
practices
Civil case for damages Regular courts
under the Civil Code
Criminal case under the
Labor Code
Injunction suit under the NLRC
Labor Code
Doctrine of privilege of good faith error
A strike is valid if the strikers believe in good faith that the act
of an employer constitutes unfair labor practice, although it was
not. Suppose the president of the union was found to have
solen company materials but the union believed that he was
innocent.
The union workers believed the leader and they went along for
a strike. Even if the union president was proven to have really
stolen the company property and his dismissal upheld by the
NLRC, the strike by the workers is not illegal because the
strikers were in good faith despite error.
Damage done by strikers
Even if it is not the local that filed the notice of strike but the
federation [agent], it must be the local [principal] who must pay
the damages. The real party-in-interest is the local.
Summary of prohibited practices
1. Striking without first bargaining; [Art. 278 (a), 1st
paragraph];
2. Striking without without first filing notice of strike; [Art.
278(a), 1st paragraph];
3. Striking without conducting a strike vote [Art. 278 (a),
1st paragraph];
4. Striking after an assumption of jurisdiction or
certification of the dispute by the Secretary of Labor;
[Art. 279 (a), 2nd paragraph];
5. Striking after the dispute has been submitted to
compulsory or voluntary arbitration; [Art. 279, 2nd
paragraph];
6. Obstructing or impeding picket lines; and
7. Employing strike breakers or allowing one’s self to be
employed as a strike breaker.
Prohibited activity can be pursued
1. Under the Labor Code;
2. As an administrative offense; or
3. As a criminal offense.
Strikes
GR: A strike cannot be enjoined. There shall be no
injunctions issued for a strike. Only prohibited practices may be
enjoined.
Article 266. [254]. Injunction Prohibited. - No temporary
or permanent injunction or restraining order in any case
involving or growing out of labor disputes shall be issued by
any court or other entity, except as otherwise provided in
Articles 218 and Art. 278[263] of this Code.
XPNs: Assumption of jurisdiction of the secretary or
certification of the case to the NLRC by the secretary
The law says there should be no enjoinment, stopping of strike,
because that is the last weapon of the otherwise defenseless
worker. That is their ultimate weapon. You should not enjoin
that. You should not deprive them of their weapon, but then
there is this law that announces the Secretary to take over a
dispute, and the moment he takes over, no more strike. That’s
the end of the strike. It is a structured way.
National interest cases
1. Hospital industry;
2. Banking industry; and
3. Industry indispensable to national interest.
Strikes in the
(1) Hospital industry
 Art. 278 [263](g). In line with the national concern for and
the highest respect accorded to the right of patients to life
and health, strikes and lockouts in hospitals, clinics and
similar medical institutions shall, to every extent
possible, be avoided, and all serious efforts, not only by
labor and management but government as well, be
exhausted to substantially minimize, if not prevent, their
adverse effects on such life and health, through the
exercise, however legitimate, by labor of its right to strike
and by management to lockout.
In labor disputes adversely affecting the continued operation
of such hospitals, clinics or medical institutions, it shall be
the duty of the striking union or locking-out employer to
provide and maintain an effective skeletal workforce of
medical and other health personnel, whose movement
and services shall be unhampered and unrestricted, as are
necessary to insure the proper and adequate protection of
the life and health of its patients, most especially emergency
cases, for the duration of the strike or lockout.
In such cases, therefore, the Secretary of Labor and
Employment may immediately assume, within 24 hours
from knowledge of the occurrence of such a strike or
lockout, jurisdiction over the same or certify it to the
Commission for compulsory arbitration.
For this purpose, the contending parties are strictly
enjoined to comply with such orders, prohibitions
and/or injunctions as are issued by the Secretary of Labor
and Employment or the Commission, under pain of
immediate disciplinary action, including dismissal or loss of
employment status or payment by the locking-out employer
of backwages, damages and other affirmative relief, even
criminal prosecution against either or both of them.
Within 24 hours from knowledge
The Secretary of Health does not have to request the
Secretary of Labor to assume jurisdiction of a labor dispute in a
hospital. It is enough knowledge if the Secretary of Labor turns
on his radio and hears about an impending strike in some
hospital.
The Secretary of Labor can issue an assumption of jurisdiction
order. He assumes jurisdiction, and then all strikes are
enjoined automatically.
(2) Banking industry
General Banking Law [Sec. 22]. The banking industry is
hereby declared as indispensable to the national
interest and, notwithstanding the provisions of any law to
the contrary, any strike or lockout involving banks, if
unsettled after 7 calendar days shall be reported by the
Bangko Sentral to the secretary of Labor who may
assume jurisdiction over the dispute or decide it or
certify the same to the National Labor Relations
Commission for compulsory arbitration.
However, the President of the Philippines may at any time
intervene and assume jurisdiction over such labor dispute in
order to settle or terminate the same.
- Under the General Banking Law, when there is a strike in
a bank, the Central Bank Governor can request the
Secretary of Labor to assume jurisdiction over the labor
dispute.
- Section of 22 of the General Banking Law is a labor
provision and not a banking law. It is a statutory provision
providing for an injunction against strike.
- The Secretary of Labor assume jurisdiction over a labor
dispute leading to strike in a bank, even without the
Bangko Sentral Governor requesting the Secretary.
- It does not make distinctions as to what kind of bank [rural
banks, commercial banks or saving bank]. As long as it’s a
bank, the Secretary of Labor can assume jurisdiction.
- Once the Secretary of Labor assumes jurisdiction, all
strikes are enjoined.
(3) Industry indispensable to the national interest
Art. 278 [263](g). When, in his opinion, there exists a labor
dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, the
Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the
same to the Commission for compulsory arbitration.
- The situation to be restored is the so-called State or
Condition Antebellum. The state of affairs before the
eruption of the labor dispute.
GR: The Secretary of Labor’s decision in determining
whether an industry is indispensable to the national
interest cannot be questioned
It behooves upon this Court to assume a becoming modesty.
And refrain from questioning the discretion of the Executive
Branch in government in passing judgment as to what industry
is indispensable to the national interest. It is a political issue
doctrine.
If the law grants to this particular branch of government the
power to decide a particular exercise of power, then the only
way that the courts will intervene, is if there is grave abuse of
discretion. If there is a simple error, they will not; because they
are co-equal branches of government and they refrain from
checking each other.
When the Secretary assumes jurisdiction, it is futile to question
it. You cannot question it because the Supreme Court will
dismiss it. Only grave abuse of discretion will merit a hearing.
XPN: Grave abuse of discretion
An order to assume jurisdiction is premised with several
whereas clauses. In one of those whereas clauses, it provided
that “whereas this labor dispute has created commotion in this
locality where the factory premises of PHIMCO is located even
though PHIMCO is not indispensable to the national
interest”.
Thus, the SC held that the secretary of labor exercised a grave
abuse of discretion since he himself provided in the order to
assume jurisdiction that the match company is not an industry
indispensable to the national interest.
There was an admission on the part of the secretary that the
labor dispute was not in an industry indispensable to the
national interest. It is blatantly against the law that he assumed
jurisdiction. That is why the SC had no choice but to correct the
secretary. (PHIMCO Industries Inc. vs. The Honorable Acting
Secretary of Labor Brillantes)
(4) Innocent third party who stands to suffer grave &
irreparable damage because of the strike [innocent
bystanders during a strike].
Strike duration pay
GR: Non-entitlement of strike duration pay
Non-strikers/employees of the employer who cannot report
because there is picket lines since they are afraid to cross the
picket lines and those who are not in the appropriate
bargaining unit that is of strike is not entitled to strike
duration pay.
The employer loses money because his production stopped,
and he cannot sell his goods. The worker is of strike, cannot
receive pay because the dictum of “no work, no pay” is to be
followed. So, both suffer loss. Supreme Court says in that
instance the law will lead them where they are – to absorb and
suffer their own loss for the act is legal.
J.P. Heilbronn Co. v. National Labor Union
When in case of strikes, and according to the CIR even if the
strike is legal, strikers may not collect their wages during the
days they did not go to work, for the same reasons if not more,
laborers who voluntarily absent themselves from work to attend
the hearing of a case in which they seek to prove and establish
their demands against the company, the legality and propriety
of which demands is not yet known, should lose their pay
during the period of such absence from work.
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 employer’s time.
XPN: Strike Duration Pay as a Form of Punitive Damage
Entitled to strike duration pay if:
a. illegal lockout;
b. illegally dismissed; or
c. illegally suspended during the course of the strike.
If the employer has been especially reckless in committing
unfair labor practice, then he will be penalized with unfair labor
practice and damages by way of strike duration pay.
DAVAO FREE WORKERS vs. COURT OF INDUSTRIAL
RELATIONS
On the matter of payment of strike-duration pay to the striking
members of petitioner union whose strike was upheld by
respondent court to be justified and legal, the Court finds that
respondents' unfair labor practices and discriminatory
practices to the extent of unlawfully dismissing the nine
petitioners, coercing the members of petitioner union to join
another union obviously sponsored by it and threatening to
virtually lock them out and "to shut up Davao plant, if
necessary fully justify the trial court's original decision ordering
respondents to allow the return to work of the striking
members of petitioner union and to give strike duration pay
with deduction of earnings elsewhere, without loss of seniority
and other benefits granted by the company.
The trial court's award of strike duration pay less earnings
must be sustained as urged by petitioners. The self-same
considerations of the company's unfair labor practice and
discriminatory acts and anti-union activities that fully justify the
award of backwages to the unlawfully dismissed employees
equally justify the granting of strike duration pay to petitioner
union's members who were left no other alternative by their
employer's improper and oppressive conduct but to declare a
strike to render aid and protection to themselves and their
unlawfully dismiss companions.
Other forms of strikes
1. Wildcat strikes
No notice is given by the workers. The workers just
immediately strike and picket without notice on the part of the
employer. It is illegal since it does not comply with the cooling
off period.
2. Economic strike
Synonymous with a deadlock strike. A strike where the union
demands from the employer who does not have a legal
obligation to grant the demand [above labor standards benefit].
3. Sit-down strike
The workers take over the plant and bars anybody else
entering the plant such as the employers, their officers, their
security guards. They are barred, and they are ready with arms
to prevent them from entering their own premises. It is illegal
because of the means used in carrying out the work stoppage.
Sit-down strike is not a peaceful strike. It is many times
violence strike. The workers just overpowers the management,
throw them out and they take over the plant.
4. General strike
A general strike is a strike called upon by one big labor
organization, and all its locals which has work places with
different employers, they are called upon to strike, and
because the federation is so strong, all of them will go on
strike, even if the employer that a particular local is located has
no problems with the workers, and the workers has no problem
with the employer.
5. Sympathy strike
They are sympathizing with other workers who have an axe to
grind against this particular employee. It has become a general
strike, everybody strikes.
Not all the striking participants in general strikes or sympathy
strike is a valid exercise of the right to self-organization
because you must first have a labor dispute.
6. Slowdown/installment strike
A slow-down is also a strike. Here the workers for a day, will be
behaving as if it is an ordinary working day. They will going
about the task but actually the resulting production is next to
zero, or has been drastically reduced.
For example they will purposely overburden the machine and
the machine breaks down then they will report, “The machine is
broken down they have to fix this.” Then there is no output.
Then they fix the machine, and just as the machine is about to
be fixed and it goes to run again, something goes wrong again.
The output slows down even if the workers ostensibly are before there was a controversy. You rebuild the situation
exerting their best efforts. The output is still down even if the before the labor dispute. (Smart v. Court of Appeals)
workers are exerting their best efforts.
All workers should return to work including the heads of offices
who were already ruled to be not within the bargaining unit
Effects of assumption of [occupying managerial positions] by the voluntary arbitrator
and which decision had become final and executory.
jurisdiction Those who were separated because of the voluntary
arbitrator’s decision are still included in the return-to-work order
Art. 278 [263](g). Such assumption or certification shall
because they were employees before the eruption of the
have the effect of automatically enjoining the intended or
controversy. The return to work is automatic under Article
impending strike or lockout as specified in the assumption or
278 even if it is not stated in the order/assumption of
certificate on order.
jurisdiction.
If one has already taken place at the time of assumption or
Effect of Failure to Adhere to a Return-to-Work Order
certification, all striking or locked out employees shall
If you do not return to work, you lose your employment status.
immediately return-to-work and the employer shall
It is not a violation of the prohibition against involuntary
immediately resume operations and readmit all workers
servitude because if you do not return to work then you are
under the same terms and conditions prevailing before the
free, you can go home.
strike or lockout.
All those who continue striking, all those who begin striking
The Secretary of Labor and Employment or the Commission
after the assumption of jurisdiction of the Secretary, will lose
may seek the assistance of law enforcement agencies to
their employment status.
ensure compliance with this provision as well as with such
orders as he may issue to enforce the same.
A Motion for Reconsideration Does Not Bar the
Assumption of Jurisdiction of the Secretary
1. All strikes are enjoined
The Supreme Court held that they must return to work even if
The order to stop the strike must be obeyed immediately
their Motion for Reconsideration has not been decided or is
despite the union’s filing of a motion for reconsideration
pending. They must return to work and it must be obeyed
regarding the assumption. The union cannot wait for the
immediately.
decision of the motion to reconsideration before enjoining the
strike.
3. Management must receive the striking workers back
to work.
The order is granted in favor of the economy and not in
There must be unconditional acceptance back to the status
favor of the employees and the employer. It is indispensable to
quo even if they are facing criminal charges for destruction of
the national interest so it must be obeyed immediately. The
property, they must still be accepted back.
situation before the labor dispute must be restored for the sake
of the country. The union cannot wait for the resolution of the
4. All other cases pending in other forum or other fora
motion for reconsideration. You cannot postpone it. It is the
are suspended and then they are consolidated with
economy that is at stake.
the Secretary if there is an assumption of jurisdiction
or the NLRC if there is a certification of the case.
If the strike has not yet commenced, it can no longer be
commenced. If there was a strike in progress at the time of
Principle of Subsumation or Absorption
assumption or certification order of the secretary labor then
All other cases are consolidated to give a chance for the
that strike is stop, you cannot continue your strike, all the
Secretary to arrive at a comprehensive solution to the labor
workers involved in the strike must return to work and
dispute. The job of the different forum is to suspend the
management must accept all workers.
hearing and gather all the paper and then send it to the
2. All strikers shall return to work
secretary or the NLRC, in case of certification.
Mutual Obligation of the Employer and Striking Employees
All cases between the same parties except where the
to Return to the Status Quo Antebellum
certification order specifies otherwise, the issues submitted for
Return to work means the restoration of the status quo
arbitration which are already filed or may be filed and are
antebellum, what was the state of things before the labor
relevant to or are proper incidents of the certified case shall be
controversy that is what to be restored. A return-to-work order
considered Subsume or Absorbed by the certified case or the
and the obligation of the employer to accept all those that are
assumed case and shall be decided by appropriate division of
made to return to work is not granted either in favor of the
NLRC or Secretary of Labor in case of assumption of
union or of management. The necessity of the return-to-work
jurisdiction.
order is the economy of the Philippines because it is a labor
dispute in an industry indispensable to the national interest.
All other cases between parties such as a case between the
union and management, a case with one of the union members
All strikers, including those who have already received their
versus management, and case of group of workers within the
separation/termination benefits, signed quitclaims, or those
bargaining unit represented by the union and management, all
who struck settlements with the voluntary arbitrator must return
those cases are consolidated into the certified case or the
to work. The purpose of the return-to-work order is to return it
assumed case. Even cases within the CA or SC with no
to the status quo ante bellum, to return it to the state of things
decision yet have be consolidated.

If there is a money claims complaint filed by the union versus
the management and this particular labor dispute which
constitutes unfair labor practice is assumed by the secretary,
that money claims complaint and all the hearings by the labor
arbiter on that money claims are suspended. The labor arbiter
forwards to the office of the secretary the documents, the
paper works, the pleadings, the entire record. Then the
secretary forwards it to the regional director of labor who is the
hearing officer, all the cases between the parties are
consolidated.
5. The parties must maintain the status quo.
The parties must suspend all their plans until there is a
resolution of the labor dispute. Neither parties shall embark on
any action will aggravate the status questionis/labor dispute.
The employer should not be hiring additional security guards
who are trigger-happy because if they put more guards there
and the union is still edgy, “Why is this? We have lifted up
picket lines, we are no longer picketing, and why is this all of
sudden there are guards? And instead of only one guard
searching us before we enter, there are three searches”
They’re afraid, that people might be bringing in bombs,
smothering the workplace to an explosion. They should not do
that. Refrain from doing things that will aggravate the situation.
6. The parties must continue conciliating and mediating
with the assistance of the NCMB.
They continue to attend the hearings conducted by the
Secretary of Labor’s hearing officer or the commission’s
hearing officer who is the managing executive labor arbiter.
The arties must continue to mediate and conciliate under the
auspices of the NCMB. That is where you present evidence
and make your arguments, as the proper forum to air out your
evidence and counter-evidence. Parties must also refrain from
committing further acts that aggravate the dispute.
The law does not consider that as contradiction. The law
considers that as opening up an entire gamut of possibilities to
settle the dispute. Because it is an industry indispensable to
the national interest.
Assumption of jurisdiction
- Assumption of jurisdiction can be taken sua sponte or at
the own volition of the secretary.
- The management lawyer can go to the secretary of labor
to ask him to assume jurisdiction over the labor dispute.
- The secretary is not obliged to listen to the union or to give
them a day in court. There is no violation of procedural
due process because it is a purely executive judgment.
Bargaining deadlock ULP
Interest dispute Rights dispute
The secretary can have his
The Secretary acts, not as a assistant write the decision
judge, but as an overarching already.
managerial executive that
must arrive at a solution that
is livable for the union and
its members, the
management and the
government. There must be
balancing of interests.
Prior notice and hearing not necessary in assumption of
jurisdiction
The discretion to assume jurisdiction may be exercised by the
Secretary of Labor and Employment without the necessity of
prior notice or hearing given to any of the parties. The rationale
for his primary assumption of jurisdiction can justifiably rest on
his own consideration of the exigency of the situation in relation
to the national interests.
2 Methods for Assuming
Jurisdiction at National
Interest Cases
1. The Secretary assumes jurisdiction; or
2. The Secretary certifies it to the NLRC for compulsory
arbitration.
(1) The Secretary Assumes Jurisdiction Over the National
Interest Case
The secretary does not come in Davao and hear the case. He
designates regional director of labor of Davao and he becomes
the hearing officer and he makes the finding of facts and the
recommendation. Once again, he indorses that to the secretary
then the secretary may either accept in toto, accepts in part or
rejects everything and starts a new hearing and investigation.
(2) Certification of the labor dispute to the NLRC
The Secretary of Labor delegates his hearing power (power to
receive evidence) to the Regional Director (RD) of Labor where
the labor dispute is principally lodged. If it is in Davao, the RD
in Bangoy Street will hear the case.
The Secretary of Labor assigns the case to the branch of the
commission that has jurisdiction over the labor dispute. The
NLRC in CDO will order the executive labor arbiter in Davao
and make them the hearing officer. It will be assigned to the
executive labor arbiter of the particular region where the
workplace is located.
A certified case is not within the original and exclusive
jurisdiction of the NLRC
When the Secretary certifies a dispute and hands it over to the
Commission, the Commission is not acting by its own powers
but only in aid of the Secretary. It is not exercising original and
exclusive jurisdiction. It is a handmaid of the Secretary. The
only original jurisdiction of NLRC is to make technical rules and
regulations for the Commission.
When the Secretary certifies a dispute, the jurisdiction of the
NLRC is now in furtherance of the power of the Secretary.
They are acting for the Secretary who is granted that special
power in the labor code. The Certification of the Secretary of
Labor to the NLRC of a National Interest Case is not an
exercise of the NLRC’s original Jurisdiction but only appellate
jurisdiction.
Union of Filipino Employees v. NLRC
When sitting in a compulsory arbitration certified to by the
Secretary of Labor, the NLRC is not sitting as a judicial court
but as an administrative body charged with the duty to
implement the order of the Secretary. Its function only is to
formulate the terms and conditions of the CBA and cannot go
beyond the scope of the order.

Moreover, the Commission is further tasked to act within the
earliest time possible and with the end in view that its action
would not only serve the interests of the parties alone, but
would also have favorable implications to the community and to
the economy as a whole. This is the clear intention of the
legislative body in enacting Art. 263 (now 278) paragraph (g) of
the Labor Code.
The NLRC cannot modify the return to work order issued
by the secretary of labor because they are not exercising
their own powers. The Commission is just supposed to
exercise the power of the Secretary of Labor. The Commission
does not have exclusive and original jurisdiction but only
exclusive and appellate jurisdiction.
DUE PROCESS
The secretary of labor must base his decision on the
evidence presented. The secretary of labor may:
1. Reject the findings of fact and its recommendations in its
entirety, and ask them to re-hear the case;
2. Receive and approve in part the findings, and also
amend the recommendations in part; or
3. Approve and adapt in toto the findings of fact and the
recommendations and make it his own in an assumption of
jurisdiction or in the commission or execution in the case
of the executive labor arbiter.
Appealing a Decision of the Secretary of Labor on a
National Interest Case
The decision of the Secretary of Labor is appealable to the
Court of Appeals. From the Court of Appeals, the decision is
appealable to the Supreme Court.
Innocent bystanders
during a strike
Innocent bystander who has a right to an injunction
against picketers and strikers
It is someone who does not have any connection with the
employer's strikers whether it is contractual, whether it is any
legal connection, except the fact that he is being picketed. That
is the only connection and that is why he is suffering heavy
losses because of the strike of which he is a complete
stranger. Therefore, the law should come to his assistance to
prevent the losses that is not owing to him or her because he is
a complete stranger stranger to the labor relations.
Innocent bystanders suffering loss during a strike may file an
injunction with the regular courts and not with the NLRC. The
NLRC has jurisdiction over the employers and striking
employees. There is no ER-EE relationship between the
innocent bystander and the employer.
Suppose the union of Holy Cross picketed various entrances in
the Holy Cross and the Bishop’s residence. The Bishop’s
residence is not a proper venue for picketing. All those other
priests who are staying there that have nothing to do with Holy
Cross can go to the regular courts and ask for an injunction.
Cases on innocent bystanders during a strike
Case Held
MSF Tire v. MSF tire is not an innocent bystander.
Court of MSF tire is privy to the predecessor in
Appeals interest. MSF had a contract with the
predecessor, a contract of sale. It knew at
the time of purchase that the labor dispute
was in full blown and the strike was
already in progress.
MSF tire had the privity of contract with
the predecessor in interest who is the
employer striked against. Thus, MSF tire’s
prayer for injunction before the regular
courts cannot be granted since it is not an
innocent bystander.
Liwayway Liwayway publishing is an innocent
Publishing bystander that can be granted injunction
Corporation against the strike by the regular courts [not
v. CIR NLRC since no ER-EE relationship].
There is no reason why we should cease
to respect the separate and distinct
personalities between Manila Bulletin and
Liwayway as separate persons. They have
entered into an arm’s length transaction
with Mr. Hans Menzi. There is a trail of
receipts that they are paying rent.
Separate personality is not resorted to
escape an obligation, perpetuate a wrong,
or to hide any illegal act, so therefore
there is no reason to pierce the veil of a
corporate entity. Therefore, Liwayway is a
separate and distinct person and is not the
employer of the striking workers and the
striking workers are causing injury to an
innocent bystander.
Unobtrusive begging by beggars is covered by the
freedom of speech
Unobtrusive begging is a privileged expression of freedom of
speech. If you just stand there and do not bother anybody and
maybe you are holding a sign - contributing to stopping climate
change, you are holding up your hat or receptacle: That is
unobtrusive begging, that is freedom of speech.
Situations wherein you are not an innocent bystander
1. Privity of contract
Suppose you enter a contract of lease with a mall to sell food
in your food stall. The employees of the mall went on a strike
against the mall owners in the mall premises, preventing you
from doing business in your food stall. Here, you are not an
innocent bystander since you have a privity of contract with the
employer which is the contract of lease.
You entered into a contract with Gaisano mall. You abide by
their opening and closing hours. You occupy a particular place
there in Gaisano Mall. So, you must absorb the consequences
that happens to your lessor. You are a lessee. You are
connected somehow to the lessor’s track against by the so-
called contract of lease. You have a privity of contract.
There must be no privity of contract, no privity of ownership, no
connection with the employers struck against that has legal
effect. If you are connected somehow, and there is legal effect,
you're not an innocent by-stander and you are not entitled to a
restraining order against the picketing strikers.
2. No ownership or possessory rights
Sidewalk vendors have no ownership or possessory interest to
occupy the place outside. They have no standing at all to lodge
an injunction suit if they cannot operate their business due to a
strike because sidewalks are supposed to be res nullus.
Picketing
There is a higher barrier when you win an injunction against
picketing since it flows from the constitutional right of freedom
of expression. You must have a clear and present danger
rule in order to be successful in seeking an injunction against
picketing.
Picketing in third-party establishment is allowed
A union can picket third party establishments that they are not
striking against, if they make it clear from their signs and
placards that they have no labor dispute against this particular
establishment.
You can picket but you must make sure that your signs are
very clear, that you have no labor dispute with the
establishment. You are not against the groceries; you are just
informing the public that the groceries are selling grapes of an
anti-labor establishment. It is the grape growers company that
you are picketing against and not the supermarket (third party
establishment).
The supermarket is helping the farms indirectly by selling the
grapes. The pro-worker groups are there to inform the public of
this situation to help the workers in the farms make their right
to self-organization.
This is peaceful picketing. You do not harass the customers of
the supermarket or the grocery. You are just walking up and
down there with a notice - clearly defining your issues in the
placards. That is allowed according to the United States
Supreme Court.
Government employees
Government employees do not have the right to strike
Government employees are prohibited from striking by express
provision of memorandum circulars 6 and as implied in EO No
180. The terms and conditions of employment in government
including any political subdivision and instrumental thereof are
governed by law.
The government workers cannot use the same weapons
employed by workers in the private sector to secure
concessions from their employer. The relationship of
government employees with the government is legal and not
contractual. However, public employees are not prohibited from
exercising their constitutional right of peaceably assembling
and petition the government for redress of grievance.
Mass action of public school teachers is a strike
The teachers are saying, “we have the law. our salaries should
be in accordance with the law. The law gave us an increase.
We are asking you to implement the law.” The teachers alleged
that what they were conducting was not a strike but an
exercise of their constitutional right to peaceably assemble to
petition the government for redress of grievance.
The SC held that these mass actions were to all intents and
purposes, a strike. They constituted a concerted and
unauthorized stoppage of or absence from work which it was
the teachers’ duty to perform undertaken for essentially
economic reasons. So, therefore, the Secretary of Education is
upheld in dismissing these teachers. The teachers were
dismissed due to abandonment of duties.
The ability to strike is not essential to the right of association. In
the absence of statute, public employees do not have the
right to engage in concerted work stoppage for any
purpose.
SSS employees not entitled to signing bonus
employees and officers of the SSS are not entitled to signing
bonus provided in the Collective Negotiation Agreement. The
process of collected negotiation in the public sector does not
encompass terms and conditions of employment requiring the
appropriation of public funds. The court reminds the SSS
Commission that the SSS fund is not their money. The ordinary
workers received the signing bonus in good faith and they do
not need to return the bonus. However, the officers and the
BOD must return the signing bonus since they were not in
good faith.
Case when it was not considered as a strike
The GSIS charged the Union with an illegal strike, because
they abandoned their posts to attend the investigation of the
president of the Union. He was being investigated to comply
with the Civil Service Regulations. The union was there to
observe and give support to their president and they left their
posts. The SC held that it was not an illegal strike because
work stoppage was not intended. The GSIS management
allowed open door observance of the investigation.
Water districts are government employees
Suppose the water district employees strike against the
management, the remedy of water district is to file an injunction
with the regular courts and not with the NLRC. They cannot file
an injunction with the NLRC since they would be impliedly
admitting that the government employees have the right to
strike. They do not have the right to strike because they are
government employees.
-----------------------END OF THIRD EXAM COVERAGE----------------------
Humility and
Perseverance ⚖️