STRIKE, PICKETING AND LOCKOUT

1. WHAT IS STRIKE, PICKETING AND LOCKOUT?

a. STRIKE – means any temporary stoppage of work by the concerted action of the employees as a result of
an industrial or labor dispute. (Art. 212 (o), Labor Code, as amended by Sec. 4, R. A. 6715)
b. PEACEFUL PICKETING – the right of workers during strikes consisting of the marching to and fro before
the premises of an establishment involved in a labor dispute, generally accompanied by the carrying and
display of signs, placards or banners with statements relating to the dispute. (Guidelines Governing Labor
Relations, October 19, 1987)
c. LOCKOUT – means the temporary refusal of an employer to furnish work as a result of an industrial or labor
dispute. (Article 212 (p) Labor Code, as amended by Section 4, R.A. 6715).

2. WHAT IS THE PURPOSE OF A STRIKE/LOCKOUT?

It is a coercive measure resorted by the laborers to enforce their demands.

3. WHAT ARE THE DIFFERENT FORMS OF STRIKES?

a) LEGAL STRIKE – one called for a valid purpose and conducted through means allowed by law.
b) ILLEGAL STRIKE – one staged for a purpose not recognized by law, or if for a valid purpose, conducted
through means not sanctioned by law.
c) ECONOMIC STRIKE – one staged by workers to force wage or other economic concessions from the
employer which he is not required by law to grant (Consolidated Labor Association of the Phil. vs. Marsman
and Company, 11 SCRA 589)
d) ULP STRIKE – one called to protest against the employer’s acts of unfair labor practice enumerated in
Article 248 of the Labor Code, as amended, including gross violation of the collective bargaining
agreement (CBA) and union busting.
e) SLOWDOWN STRIKE – one staged without the workers quitting their work but merely slackening or
by reducing their normal work output.
f) WILD-CAT STRIKE – one declared and staged without filing the required notice of strike and without the
majority approval of the recognized bargaining agent.
g) SIT DOWN STRIKE – one where the workers stop working but do not leave their place of work.

4. WHAT IS AN INDUSTRIAL DISPUTE?

An industrial or labor dispute includes any controversy or matter concerning terms or 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. (Article 212 (1) Labor Code, as amended by Section 4, R.A. 6715)

5. WHAT IS THE NATURE OF THE RIGHT TO STRIKE AND LOCKOUT?

It (State) shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in accordance with law. (par. 2, Sec. 3, Article XIII
of the Constitution)

The right to strike is a constitutional and legal right of the workers as the employers have the inherent and
statutory right to lockout, all within the context of labor relations and collective bargaining.

It is a means of last resort and presupposes that the duty to bargain in good faith has been fulfilled and other
voluntary modes of dispute settlement have been tried and exhausted. (Guidelines Governing Labor
Relations).

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6. WHO MAY DECLARE A STRIKE OR LOCKOUT?
i. Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining
deadlock and unfair labor practice.
ii. Likewise, the employer may declare a lockout in the same cases.
iii. In the absence of a certified or duly recognized bargaining representative, any legitimate labor
organization in the establishment may declare a strike but only on the ground of unfair labor practice.
(Section 2, Rule XIII, Book V, Omnibus Rules Implementing The Labor Code, as amended).

7. WHAT ARE THE REQUISITES OF A LAWFUL STRIKE OR LOCKOUT?

GUIDELINES:
¡ 3 Notices Required:
1) Notice of Strike (NCMB [DOLE] and Employer);
2) Notice of Strike Vote (NCMB [DOLE]);
3) Notice of Results of Strike Vote (NCMB [DOLE]).

¡ 3 Important Periods:
1) Cooling-off Periods (except Union Busting);
2) 7-Day Strike Ban;
3) 24 hours

¡ During Cooling-off period, all efforts for conciliation and mediation exerted for voluntary settlement.
¡ Notice of Results of Strike Vote will start 7-day strike ban.
¡ 7- Day Strike Ban is NOT an addition to the cooling-off period. BUT, even if you finish the 7-day Strike
Ban, you MUST wait until the cooling-off period lapses before staging a strike.

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The requirements for a valid strike or lockout are as follows:

1. EFFORT TO BARGAIN
No labor organization […] shall declare a strike […] without first having bargained collectively […] (Article
279 (a), LC)

2. BASED ON A VALID AND FACTUAL GROUND;

The law recognizes two grounds for the valid exercise of the right to strike or lockout, namely:
b. Collective Bargaining Deadlock (CBD) (Economic Bargaining)
¡ It is intended to force wage and other concessions from the employer, which he is not required
by law.
c. Unfair Labor Practice (ULP)
¡ Employer’s acts of ULP (see ULP Notes)
¡ Gross Violation of the CBA
¡ Union Busting

The union/employer may not file a notice based on grounds other than ULP and CBD. Violations of
Collective Bargaining Agreements, except flagrant and/or malicious refusal to comply with its economic
provisions, shall not be considered unfair labor practice and shall not be strikeable and no strike or lockout
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 may be declared on grounds involving inter-union and internal union disputes or on issues brought to
voluntary or compulsory arbitration including legislated wage orders and labor standard cases.

However, if improvidently filed and it appears on the face of the notice that the issues raised are non-
strikeable or the real issues discovered during conciliation proceedings are not proper subjects of a Notice
of Strike or Lockout, The NCMB Regional Branch shall dismiss motu propio the notice without prejudice to
further conciliation, or upon request of either or both parties in which case, the Notice of Strike or Lockout
is treated as a Preventive Mediation Case. (See Definition of Preventive Mediation Case under Appendix 3,
Definition of Terms).

3. FILING AND SERVICE OF A NOTICE OF STRIKE OR LOCKOUT (NOTICE #1)

Where: Regional Branch of the National Conciliation and Mediation Board (NCMB) – DOLE

4. OBSERVANCE OF THE COOLING OFF PERIOD

Period to file: (COOLING-OFF PERIOD)
¡ ULP - at least 15 days before the intended date of the strike or lockout
¡ Union busting (form of ULP) – NONE.
¡ bargaining deadlock. - at least 30 days before the intended date thereof

Purpose: To afford the parties the opportunity to amicably resolve the dispute with the assistance of the
NCMB Conciliator/Mediator.

Should the dispute remain unsettled until the lapse of the required number of days from the mandatory
filing of the notice, the labor union may strike or the employer may commence a lockout after having
complied with the 7-day requirement for the filing of the strike or lockout vote, as the case may be.

Who:
¡ In establishments with certified bargaining agent – any certified or duly recognized bargaining
representative in cases of ULP
¡ For bargaining deadlock – only the bargaining union
¡ In establishments with no certified bargaining agent – any legitimate labor organization but only on
grounds of ULP

In cases 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
after the strike vote is conducted and the result thereof submitted to the Department of Labor and
Employment.

Elements of Union Busting:

a. A dismissal from employment of union officers duly elected in accordance with the union’s CBL; and
b. The existence of the union is threatened by such dismissal.

The union may completely disregard the 15-day cooling-off period but NOT the requirement on the 7-day
waiting or strike ban, together with the other requirements.

5. CONDUCT OF A STRIKE OR LOCKOUT VOTE.

STRIKE VOTE
Must be approved by a majority vote of the members of the Union
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 LOCKOUT VOTE
Must be approved by a majority vote of the members of the Board of Directors of the Corporation
or Association or of the partners in a partnership,

Means: approval obtained by secret ballot in a meeting called for that purpose.

Purpose: To ensure that the decision to strike broadly rests with the majority of the Union members
in general and not with a mere minority, at the same time, discourage wildcat strikes, union bossism and
even corruption.

Participation of the NCMB in the taking of the strike/lockout vote:

¡ In its own initiative or
¡ Upon request of any affected party.

Must give notice at least 24 hours prior to the conduct of the voting to give the NCMB sufficient time to
decide if it will supervise the voting and in the event it does, to prepare. (NOTICE #2) (24 hours)

6. SUBMISSION OF STRIKE OR LOCKOUT VOTE REPORT AND OBSERVANCE OF 7-DAY WAITING

PERIOD (STRIKE BAN). A strike or lockout VOTE shall be reported to the NCMB-DOLE Regional Branch at
least 7 days before the intended strike or lockout subject to the cooling-off period. (NOTICE #3) (7-Day
Strike Ban)

Purposes: To give DOLE an opportunity to verify whether the projected strike really carries the approval of
the majority of the union members in addition to the cooling-off period before the actual strike.

To ensure that a strike vote was indeed taken and in the event that the report is false, to afford the
members an opportunity to take the appropriate remedy before it is too late.

NOTE:
§ In the event the result of the strike/lockout ballot is filed within the cooling-off period, the 7-
day requirement shall be counted from the day following the expiration of the cooling-off period.
(NSFW vs. Ovejera, G.R. No. 59743, May 31, 1982)
§ In case of dismissal from employment of union officers which may constitute union busting, the time
requirement for the filing of the Notice of Strike shall be dispensed with but the strike vote
requirement being mandatory in character, shall “in every case” be complied with.

8. WHAT ARE THE CONTENTS OF A NOTICE OF STRIKE OR LOCKOUT?

The notice shall state, among others, the names and addresses of the employer and the union involved, the
nature of the industry to which the employer belongs, the number of union members and of the workers in the
bargaining unit, and such other relevant data as may facilitate the settlement of the dispute, such as a brief
statement or enumeration of all pending labor disputes involving the same parties.

i. In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues
in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-
proposals of the employer and the proof of a request for conference to settle the differences.
ii. In cases of unfair labor practice, the notice shall, as far as practicable, state the acts complained of and the
efforts taken to resolve the dispute amicably.

9. WHAT IS THE ROLE OF THE NCMB IN CASE A NOTICE OF STRIKE OR LOCKOUT IS FILED?

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 Upon receipt of a valid notice of strike or lockout, the NCMB, through its Conciliator-Mediators, shall call the
parties to a conference the soonest possible time in order to actively assist them to explore all possibilities for
amicable settlement. To this end, the Conciliator-Mediator may suggest/offer proposals as an alternative
avenue for the resolution of their disagreement/conflict which may not necessarily bind the parties. In the
event of failure in conciliation/mediation the parties shall be encouraged to submit their dispute for voluntary
arbitration.

10.WHAT IS THE LEGAL IMPLICATION IF THE CONTENT-REQUIREMENT OF THE NOTICE OF STRIKE OR

LOCKOUT HAS NOT BEEN COMPLIED WITH?

Any notice which does not conform with the foregoing requirements shall be deemed not having been filed.

11.WHAT ARE THE PROHIBITED ACTS AND PRACTICES?

¡ Declaring a strike or lockout on grounds involving inter-union and intra-union disputes or on issues
brought to voluntary or compulsory arbitration.
¡ Declaring a strike or lockout
i. without first having bargained collectively or
ii. without first having filed the required notice or
iii. without the necessary strike or lockout vote first having been obtained and reported to the Regional
Branch of the NCMB.
¡ Declaring a strike or lockout in defiance of a cease-and-desist order, or an order for the striking
employees to return to work and for the employer to accept the workers after assumption of jurisdiction
by the President or Secretary of Labor and Employment, or after certification or submission of the
dispute to compulsory or voluntary arbitration, or during the pendency of a case involving the authorized
grounds for the strike or lockout.
¡ Obstructing, impending or interfering with by force, violence, coercion, threats or intimidation any
peaceful picketing by employees during any labor controversy or in the exercise of their right to self-
organization or collective bargaining, or aiding or abetting such obstruction or interference.
¡ Employing any strike breaker or being employed as a strike-breaker.
¡ No public official or employee, including officers and personnel of the Armed Forces of the Philippines, of
the Philippine National Police, or any 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 strikers.
¡ Nothing herein shall be interpreted to prevent the aforementioned officials, employees or peace officers
from taking any measure necessary to maintain peace and order and/or to protect life and property.
¡ Stationary picket and the use of means like placing of objects to constitute permanent blockade or to
effectively close points of entry or exit in company premises.
¡ Any act of violence, coercion or intimidation by any picketer.
¡ The obstruction of the free ingress to or egress from the employer’s premises for lawful purposes.
¡ Obstruction of public thoroughfares while engaged in picketing.

12. WHAT ARE THE LEGAL IMPLICATIONS FOR NON-COMPLIANCE WITH THE REQUIREMENTS FOR A
VALID STRIKE OR LOCKOUT?

The requirements for a valid strike or lockout are mandatory in character and non-compliance therewith is
sufficient ground to declare the strike or lockout illegal.
§ If a strike is declared illegal, the employer may be authorized to terminate the employment of union
officials who knowingly participated in the illegal strike and/or any worker or union officer who knowingly
participated in the commission of other illegal acts during the strike.
§ In case the lockout is declared illegal, any worker whose employment has been terminated as a
consequence thereof may be entitled to re-instatement including payment of full backwages and other
benefits.
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13.WHAT IS THE EFFECT WHEN BOTH PARTIES HAVE ACTED IN PARI DELICTO?
(Employer is guilty of illegal lockout and the union is culpable for illegal strike)
They should be restored to their respective positions prior to the illegal strike and lockout.

14.WHEN MAY A STRIKE OR LOCKOUT BE DECLARED ILLEGAL?

¡ A strike or lockout may be declared illegal if any of the requirements for a valid strike or lockout is not
complied with.
¡ It may also be declared illegal if it is based on non-strikeable issues or if the issues involved are already
the subject of arbitration.
¡ During a strike or lockout, when either of the parties commit prohibited acts or practices, the strike or
lockout may be declared illegal.

15.CAN ANY PERSON PERFORMING ANY OF THE PROHIBITED ACTIVITIES MENTIONED IN THE
PROCEEDING PARAGRAPH BE CHARGED BEFORE THE COURT?
Yes. They may be charged before the appropriate civil and criminal courts.

16.WHAT IS THE PENALTY IMPOSABLE?

¡ Any person violating any of the provisions of Article 265 of the Labor Code (performing any of the above
prohibited activities) shall be punished by
a) a fine of not exceeding P500.00 and/or
b) imprisonment for not less than one (1) day nor more than six (6) months.
¡ If the person so convicted is a foreigner, he shall be subjected to immediate and summary deportation
and will be permanently barred from re-entering the country without the special permission of the
President.
¡ If the act is at the same time a violation of the Revised Penal Code (RPC), a prosecution under the Labor
Code will preclude prosecution for the same act under the RPC or vice-versa.

17.IS AN EMPLOYEE WHO PARTICIPATES IN A LAWFUL STRIKE DEEMED TO HAVE ABANDONED

HIS EMPLOYMENT?
No. An employee who goes on strike is not deemed to have abandoned his employment but is merely
exercising his right to self-organization precisely to protect his rights as an employee and/or to obtain better
working conditions.

18.IS PARTICIPATION BY AN EMPLOYEE IN A STRIKE SUFFICIENT GROUND FOR AN EMPLOYER TO

TERMINATE HIS EMPLOYMENT?

No. The mere participation of a worker in lawful strike shall not constitute sufficient ground for the termination
of his employment even if a replacement has been hired by the employer during such lawful strike.

However,
¡ 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.

19. ARE THE STRIKERS ENTITLED TO PAYMENT OF WAGES DURING THE PERIOD OF A LAWFUL
STRIKE?

As a general rule, striking employees are not entitled to the payment of wages for unworked days during the
period of the strike pursuant to the principle of “No work- No pay”. However, this does not preclude the
parties from entering into an agreement to the contrary.

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 On the other hand, when strikers abandon the strike and apply for reinstatement despite the existence of valid
grounds but the employer either refuses to reinstate them or imposes upon their reinstatement new conditions
that constitute unfair labor practices, the strikers, who refuse to accept the new conditions and are consequently
refused reinstatement, are entitled to the losses of pay they may have suffered by reason of the employer’s
discriminatory acts from the time they were refused reinstatement.

20.MAY A STRIKE/LOCKOUT BE ENJOINED/PREVENTED BY LEGAL PROCESS?

As a general rule, strikes and lockouts validly declared enjoy the protection of law and cannot be enjoined
unless illegal acts are committed in the course of such strikes or lockouts. Ordinarily, the law vests in the NLRC
the authority to issue injunctions to restrain the commission of illegal acts during strikes and pickets.

21.WHAT IS THE INNOCENT BYSTANDER RULE?

Innocent bystanders who hve no employer-employee relationship with the picketing strikers, may apply for
injunction with the REGULAR COURTS to enjoin the conduct of the picket. Because of the absence of the
employer-employee relationship, the NLRC cannot entertain such application for injunction from “innocent
bystanders”.

22.WHAT IS A STRIKE AREA?

A strike area includes:
(a) the establishment of the employer struck against including run-away shops, factories or warehouses and
other premises where members of the bargaining unit carry out the operations and business of the
employer, and
(b) the area immediately before points of entrance and exit of establishment struck against.

The members of the peace keeping detail shall stay outside a 50 meter radius from the picket line, except, if the
50 meter radius includes a public thoroughfare, they may station themselves in such public thoroughfare for the
purpose of insuring the free flow of traffic.

23.IS THE INGRESS AND EGRESS OF THE ESTABLISHMENT PART OF THE STRIKE AREA?
NO Since it is not part of the strike area, the same could not be blocked or picketed.

24.WHO IS A STRIKE-BREAKER?
A strike-breaker means any person who obstructs, impedes or interferes with by force, violence, coercion,
threats or intimidation any peaceful picket by employees during any labor controversy.

An employer who shall use or employ any strike-breaker, engages in a prohibited activity during strike or
picketing.