STRIKES

Chapter XVII
Meaning of Strike
Strike is any temporary stoppage of work
by the concerted action of employees as
a result of a labor dispute. [Art. 218(o),
Labor Code]
To constitute a strike the stoppage of
work must be:
•Concerted;
•Temporary; and
•Result of a labor dispute.
What is grievance?

Grievance is a dispute or controversy between

employer and the collective bargaining agent,
individual employee or group of employees, arising
from interpretation or implementation of the Collective
Bargaining Agreement (CBA) or interpretation or
enforcement of company personnel policies.
 Meaning of Labor Dispute
Labor dispute refers to any controversy
or matter concerning terms or conditions
of employment or the association or
representation of persons in negotiating,
fixing, maintaining, regardless of
whether the disputants stand in the
proximate relation of employer and
employee. [Art. 218(I). Labor dispute.
 The phrase “regardless of whether
the disputants stand in the proximate
relation of employer and employee”
means that there need not be a
direct employment relation between
the parties in order that their
controversy can be considered as a
labor dispute.
 Limitations on the Rights to Strike
Under the law, a strike cannot be declared:
•Without first having bargained
collectively;
•Without first having filed the notice of
strike;
•Without conducting a strike vote and
submitting a strike vote report;
•After assumption of jurisdiction by
the Secretary of Labor and
Employment;
•After the certification or submission
of the dispute to arbitration;
•During the pendency of cases
involving the same grounds for the
strike; or
•On inter-union or intra-union
disputes.
 Articles 268(b) and 269(a) of the Labor
Code expressly provide that:

“Art. 268. Strike, Picketing and Lockouts

x x x (b) x x x no labor union may strike x x x on
grounds involving inter-union and intra-union
disputes.”
 “ART. 269. Prohibited Activities- (a) No labor
organization x x x shall declare a strike x x x
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 on without the
necessary strike x x x vote first having been
obtained and reported to the Ministry.
 No strike x x x shall be declared after
assumption of jurisdiction by the President or
the Minister or after the certification or
submission of the dispute to compulsory or
voluntary arbitration or during the pendency
of cases involving the same grounds for the
strike x x x.”
 Kinds of Strikes
As to purpose:
(a) Unfair labor strike- a concerted activity
staged to protest the employer’s unfair
labor practice [Cromwell Commercial v.
CIR, 12 SCRA 124; MILU v. NLRC,219
SCRA 47]
(b) Economic strike- a concerted activity
staged to force wage or other concession
from the employer which he is not
required by law to grant [CLU v.
Marsman, 11 SCRA 586].
 As to the Manner of Execution:
(a) Walk-out – a from of strike where the
strikers establish themselves outside the
plant and refuse access to the owners and
other employees who want to work.
(b) Sit-down- a form of strike where the
strikes establish themselves within the
plant, stop its production and refuse
access to the owners and other employees
who wants to work.
(c) Slowdown- a form of strike where
the strikes merely retard production.
(d) Mass leave- a form of strike where
the strikes take time-off from work
simultaneously.
(e) Wildcat- a strike staged without the
authorization of the union.
 As to the Employer Against it is
Directed:
(a) Primary strike- directed against the employer
because of a labor dispute with him.
(b) Secondary strike- directed against the
employer with primary labor dispute
connected by-product or employment with
the employer of the secondary strikes.
(c) Sympathy strike- a strike staged to make
common cause with strikers in other
establishments, without any dispute
between the strikers and their employer.
 Requisites of a Valid Strike
(a) It should be staged by a legitimate labor
organization;
(b) It should be declared only on grounds
specified by law;
(c) It should comply with the requirements
prescribed by law; and
(d) It should have a lawful purpose and
carried out through lawful means.
 Who can declare a strike?
Only a certified or duly recognized collective
bargaining representative can declare a strike. If
there is no certified or duly recognized collective
bargaining representative, a strike can be
declared by a legitimate labor organization, but
only on the ground of unfair labor practice.
[Art. 268, Labor Code]
Employees of establishments where there is no
union cannot strike.
The Legal Grounds for Declaring a
Strike
(a) Deadlock in collective bargaining;
and
(b) Unfair labor practice. [Art. 268(c),
Labor Code]
The Legal Requirements of a Strike
There are three legal requirements
that must be complied with before
declaring a strike, namely:
(a) Notice of strike;
(b) Strike vote; and
(c) Strike vote report
 Notice of Strike
The notice of strike should be filed at least:
•15 days before the intended date of
strike- if based on unfair labor practice;
•30 days before the intended date of
strike- based on collective bargaining
deadlock.
This is expressly provided for in Article 268(c) of
the Labor Code which states that:
 “ART. 268. Strikes, Picketing, and Lockouts- x x
x (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. x x x “
Where to File the Notice of Strike

The notice of strike should be

filed with the National
Conciliation and Mediation
Board (NCMB)
 The Cooling-Off Period
The cooling-off period is the span of time
allotted by law for the parties to settle their
disputes in a peaceful manner before declaring
a strike. The duration of the cooling-off period
are as follows:
•15 days from the filing of the notice of
strike – if based on unfair labor practice;
•30 days from the filing of the notice of
strike- if based on deadlocks in collective
bargaining.
 Can the cooling-off period be
dispensed with?
As a general rule, the cooling-off period cannot
be dispensed with. Observed of the cooling-off
period is mandatory.
Exceptionally, the cooling-off period may be
dispensed with in case of unfair labor practice
where the duly elected union officers are
dismissed in such a way that the existence of
the union is threatened. This is expressly
provided for in Article 268(c) of the Labor Code
which states that:
 “ART. 268. Strikes, Picketing, and Lockouts- x
x x 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,”
 But while the union is not obliged to observe
the cooling-off period, it is still obliged to file a
notice of strike, obtain a strike vote report
before staging the strike [Sukho-thai Cuisine
and Restaurants v. Court of Appeals, 495 SCRA
336]
 Strike Vote

The decisions on whether or not to go on

strike will be determined by the union
members through secret ballot in a
referendum duly called for the purpose.
Article 268(f) of the Labor Code provides that:
 “ART. 268. Strikes, Picketing, and Lockouts- x x
x (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 the purpose, x x x The
Ministry may, at its own initiative or upon the
request of any affected party, supervise the
conduct of the secret balloting. x x x .”
 Strike Vote Report
The Union should report the results of the
strike referendum to the NCMB at least
seven (7) days before the intended strike.
Article 268(f) of the Labor Code provides
that:
“ART.268. Strikes, Picketing, and Lockouts- x x
x (f) x x x In every case, the union x x x shall
furnish the Ministry the result of the voting
at least seven days before the intended
strike or lockout, subject to the cooling-off
period herein provided.”
 The Seven-Day Strike Ban

The seven-day strike ban is the seven-day

period reckoned from the submission of the
strike vote report. During this period the union
is forbidden to strike. This could be gleaned
from Article 268 of the Labor Code which
states that:
 “ART. 268. Strikes, Picketing, and lockouts- x x
x (f) x x x In every case, the union x x x shall
furnish the Ministry the results of the voting at
least seven days before the intended strike or
lockout, subject to the cooling-off period
herein provided.”
 When can the union stage a strike?

The union may go on strike:

•After the lapse of the cooling-off
period; and
•After the lapse of the seven-day
strike ban.
 How long is the validity of the
decision to declare a strike?
The decision to declare a strike is
valid for the duration of the dispute
that existed at the time when the
strike vote was taken. [Art. 268(f),
Labor Code]
 Referendum on Improved Offer
Notwithstanding the declaration of strike, the
NCMB is still obliged to continue mediating and
conciliating. If in the course of the mediation and
conciliation, the employer presents an improved
offer, the NCMB will conduct a referendum among
the union members to determine whether or not
the improved offer is acceptable or not. If the
majority of the Union members votes to accept the
improved offer, the strike ends. This is expressly
provided for in Article 270 of the labor Code which
provides that:
 “ART. 270. Improved Offer Balloting- In 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 votes to accept the improved offer,
the striking workers shall immediately return
to work and the employer shall there upon
readmit them upon signing of the agreement.”
Can employees hospitals and similar
medical institutions strike?
Strikes in hospitals, clinics and similar
institutions are strongly discouraged, but
should a strike be inevitable, the striking union
must provide and maintain an effective
skeletal workforce of medical and health
personnel whose movement and services shall
be unhampered and unrestricted.
 The Secretary of Labor and Employment may
immediately assume jurisdiction over the
dispute or certify the same for compulsory
arbitration within twenty-four (24) hours from
knowledge of the occurrence of the strike.
This is provided for in Article 268(g) of the
Labor Code which states that:
 “ART. 268. Strikes, Picketing, and Lockouts- x x x
(g) x x x In line with the national concern 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 force 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 cases,
therefore, the Secretary of Labor and Employment
may immediately assume, within twenty-four (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 are issued by
the Secretary of Labor and Employment or the
Commission, under pain of disciplinary action,
including dismissal or loss of employment
status or payment by the locking out employer
of back wages, damages and other affirmative
relief, even criminal prosecution against either
or both of them.”
Does a Strike cut-off the employment
status of strikers?
The employment status of the strikers
subsists during a strike. A strike is not a
renunciation of employment relation. While
out on strike, it is not considered that the
strikers have abandoned their employment
but rather have only ceased from their labor
[Rex Taxi cab v. CIR 70 SCRA621].
Can an employee be dismissed for
participating in a lawful strike?
The mere participations of a worker in a
lawful strike is not a ground for termination his
employment, even if a replacement had been
hired by the employer during such lawful
strike. Article 269 (a) of the Labor Code
expressly provides that:
 “ART. 269. Prohibited Activities- (a) x x x 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.”
Are strikers entitled to wages during
strike?
Under the principle of “a fair day’s wage for a
day’s labor,” strikers are not entitled their wages
during the period of the strike even if the strike is
legal. Considering that no work was performed
by the employee during the strike, there can be
no wage or pay. It is hardly fair or just for an
employee to litigate against his employer on his
employer’s time [Heilbron v. NLU, 92 Phil. 575].
 Employment of Strike Breakers
Prohibited
During a strike employers are prohibited from
employing strike breakers. Article 269 of the
Labor Code expressly provides that:

“ART. 269. Prohibited Activities- x x x (c) No

employer shall use or employ any strike
breaker, nor shall any person be employed as
strike-breaker.”
 Meaning of Strike-Breaker

A strike-breaker is a person who obstructs,

impedes, or interferes with by force, violence,
threats or intimidation any during any
peaceful picketing by employees during any
labor controversy. [Art. 218(r), Labor Code]
Escorting of Replacement By Any
Person Is Prohibited
During a strike, public officers, military and
police personnel or any armed person are
prohibited from bringing in or escorting any
individual in entering or leaving the premises
of a strike area to replace striking employees.
Article 269(d) of the Labor Code expressly
provides that:
 “ART. 269. Prohibited Activities- x x x (d) No
public official or employee including officers and
personnel of the 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 the 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 order, protect life and property, and/or
enforce the law and legal order.”
 What is prohibited is the escorting of
individuals in entering or leaving the strike
area to replace the striking employees. If the
person escorted will not replace the strikers,
Article 269(d) of the Labor Code is not
violated.
 Strike Area
Strike area refers to the establishment,
warehouse, depots, plants or offices, including
the sites or premises used as run-away shops
of the employer, as well as the immediate
vicinity actually used by picketing strikers in
moving to and from before all points of
entrance. [Art. 218(s). Labor Code]
 Role of Police Officers in Labor
Disputes
In strike, lockouts or other labor disputes, the
role of police officers is limited to enforcing the
law and maintaining peace and order to protect
life and property. Peace keeping personnel should
maintain themselves at a distance of fifty (50)
meters from the picket line, except, if the
50-meter radius includes a public thoroughfare, in
which case, they may station themselves in such
public thoroughfare for the purpose of insuring
the free flow of traffic.
 [Guidelines for the Conduct of INP / AFP
Personnel During Strikes, Lockouts and Labor
Disputes in General] Article 269(d) of the Labor
Code, expressly provides that:
 “ART. 269. Prohibited Activities- x x x (d) x x x
The police force shall keep out of the picket
lines unless actual violence or other criminal
acts occur therein: Provided, That nothing
herein shall be interpreted to prevent any
public officer from taking any measure
necessary to maintain peace and order,
protect life and property, and/or enforce the
law and legal order.”
Role of Police Officers in the service of
Lawful Orders or Writs
The Department of labor and employment may seek
the assistance of police officers in enforcing legal
orders of duly constituted authorities. In the service
of orders or writs in labor disputes, the role of police
personnel is only to support the government agency
which issued the writs or order. Only when
specifically requested can police personnel enforce
such orders or writs.[Guidelines for the Conduct of
INP / AFP Personnel During Strikes, Lockouts and
labor Disputes in General]
 Arrest or Detention of union
Officers/Members
As a general rule, union officers, members or
organizers cannot be arrested or detained for
union activities without previous consultation
(not approval) with the Secretary of the Labor
Employment.
 When Prior Consultation is Not
Necessary
Prior consultation with the Secretary of Labor
and Employment is not necessary if the arrest
is made:
(a) On grounds of national security and public
peace; or
(b) In case of commission of a crime

This is clear from the provisions of Article 271

of the Labor Code which provides that:
 “ART. 271. Requirements For Arrest And
Detention- Except on grounds of national
security and public peace, or in case of
commission of a crime, no union members or
union organizers may be arrested or detained
for union activities without previous
consultations with the Secretary of Labor
 Therefore, strikers may be arrested without
prior consultation if they:

(a) Obstruct public thoroughfares or the free

ingress to and egress from the employer’s
premises; or
(b) Possess deadly weapons such as knives,
bolos, blunt or pointed instruments and
firearms or explosives. [Nos. 9 and 10,
Guidelines for the Conduct of INP /AFP
Personnel During Strikes, Lockouts and
Labor Disputes]
 Filing of Criminal Cases Against
Strikers
Clearance must first be obtained from the
Department of Labor and Employment or the
Office of the president before filing a criminal
case relating to or arising out of a labor
disputes.
An injunction order (or an assumption or
certificate order) issued in a labor case is
considered as compliance with the clearance
requirement [MOJ Circular No. 15 dated June
7, 1982].
 Categories of Illegal Strikes
(a) Strike staged in violation of a specific
prohibition of law;
(b) Strike staged in violation of a specific
requirement of law;
(c) Strike declared for an unlawful purposes;
(d) Strike carried out through unlawful means;
(e) Strike declared in violation of an existing
injunction; and
(f) Strike staged in violation of an existing
agreement [TMPCWA v. NLRC 537 SCRA 171]
 Examples of Strike in Violation of a
Specific Prohibition of Law
(a) Strike staged by employees performing
governmental functions;
(b) Strike staged by managerial employees;
(c) Strike on grounds involving inter-union
and intra-union disputes;
(d) Strike compel the employer to correct
wage distortion; or
(e) Strike on grounds other than ULP or CBA
deadlock.
 Examples of Strike in Violation of a
Specific Requirement of Law
(a) Strike declared without notice of strike;
(b) Strike without observing the cooling-off
period;
(c) Strike without conducting strike vote;
(d) Strike without submitting the strike vote
report; and
(e) Strike without observing the seven (7)-
day strike ban.
 Examples of Strike Declared for an
Unlawful Purpose
(a) Strike declared to induce the employer to
commit ULP against employees who are
not union members;
(b) Strike by a minority union to compel the
employer to bargain with it;
(c) Strike to compel an employer to
negotiate a CBA during the pendency of a
petition for certification election;
(d) Strike to compel the implementation of a
CBA provision that is already the subject of a
writ of execution;
(e) Strike declared for trivial, unjust or
unreasonable purpose; or
(f) Strike staged without giving the
employer reasonable time to act on the
demands.
 Example of Strike Carried Out
With the Use of Unlawful Means
(a) Strike carried out with the use of
widespread terrorism against non-strikers;
(b) Strike carried out with the use of force,
violence, sabotage, etc;
(c) Strike where prohibited acts under Article
268 of the Labor Code were committed.
Examples of Strike in Violation of
an Existing Injunction
(a) Strike staged after the Secretary of Labor
has assumed jurisdiction over the
disputes;
(b) Strike declared after the dispute has
already been submitted for compulsory
arbitration;
(c) Strike staged in defiance of a
return-to-work order.
Examples of Strike in Violation of
Existing Agreement
(a) Strike staged in violation of the conclusive
arbitration clause in the CBA;
(b) Strike without exhausting or availing of
the grievance machinery under the CBA;
(c) Strike staged in Violation of the no-strike
stipulation in the CBA.
 Sanction for Illegal Strike
In case of an illegal strike, the following
strikers can be dismissed from employment,
i.e., penalized with loss of employment status:
(a) Union officers who knowingly participate in an
illegal strike; and
(b) Union officers or members who knowingly
participate in the commission of illegal acts.

This is expressly provided for in Article

269(c) of the Labor Code which states that:
 “ART. 269. Prohibited Activities- (a) x x x Any
union officer who knowingly participates in all
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: x x x”