DAY FIVE

K. UNFAIR LABOR PRACTICES

1. Concept: Article 247, Labor Code.

2. Test to determine ULP

3. Unfair Labor Practices of employers, Art. 248 LC

3.1 Interference in the right to self-organization

Hacienda Fatima vs. National Federation of Sugarcane Workers-Food and

General Trade, G.R. No. 149440, 28 January 2003

Issue: WON the petitioners were guilty of unfair labor practice.

Ruling: YES. From the respondents refusal to bargain, to their acts of economic
inducements resulting in the promotion of those who withdrew from the union,
the use of armed guards to prevent the organizers to come in, and the dismissal of
union officials and members, one cannot but conclude that respondents did not
want a union in their hacienda a clear interference in the right of the workers to
self-organization.

Prince Transport, Inc. vs. Garcia, et al. G.R. No. 167291, 12 January 2011

3.2 Refusal to bargain collectively

Divine World vs. Secretary of Labor, 213 SCRA 759 [1992]

Divine Word University of Tacloban vs. Secretary of Labor and Employment

G.R. No. 91915. September 11, 1992.

ISSUE: Whether the action of the Divine Word University applying for a
certification election is justified for there is a bargaining deadlock.

HELD: NO. In the absence of a collective bargaining agreement, an employer

who is requested to bargain collectively may file a petition for certification
election any time except upon a clear showing that one of these two instances
exists: (a) the petition is filed within one year from the date of issuance of a final
certification election result or (b) when a bargaining deadlock had been submitted
to conciliation or arbitration or had become the subject of a valid notice of strike
or lockout.

A deadlock is defined as the counteraction of things producing entire

stoppage: a state of inaction or of neutralization caused by the opposition of
persons or of factions (as in government or a voting body): standstill. There is a
deadlock when there is a complete blocking or stoppage resulting from the action
of equal and opposed forces; as, the deadlock of a jury or legislature. The word
is synonymous with the word impasse which, within the meaning of the American
federal labor laws, presupposes reasonable effort at good faith bargaining which,
despite noble intentions, does not conclude in agreement between the parties.

A thorough study of the records reveals that there was no reasonable effort at
good faith bargaining specially on the part of the University. Its indifferent
attitude towards collective bargaining inevitably resulted in the failure of the
parties to arrive at an agreement. As it was evident that unilateral moves were
being undertaken only by the DWUEU-ALU, there was no counteraction of
forces or an impasse to speak of. While collective bargaining should be initiated
by the union, there is a corresponding responsibility on the part of the employer to
respond in some manner to such acts. While it is true that as early as March 7,
1985, said union had submitted its collective bargaining proposals and that, its
subsequent withdrawal by the DWUEU vice-president being unauthorized and
therefore ineffective, the same proposals could be considered as subsisting, the
fact remains that said union remained passive for three years. The records do not
show that during this three-year period, it exerted any effort to pursue collective
bargaining as a means of attaining better terms of employment. It was only after
its affiliation with the ALU that the same union, through the ALU Director for
Operations, requested an initial conference for the purpose of collective
bargaining. That the DWUEU abandoned its collective bargaining proposals prior
to its affiliation with ALU is further confirmed by the fact that in the May 10,
1988 agreement with the University, said Union bound itself to submit a new set
of proposals on May 13, 1988. Under the circumstances, the agreement of May
10, 1988 may as well be considered the written notice to bargain referred to in
Art. 250(a) of the Labor Code, which thereby set into motion the machinery for
collective bargaining, as in fact, on May 19, 1988, DWUEU-ALU submitted its
collective bargaining proposals.

As the Court earlier observed, there has not been a reasonable effort at good faith
bargaining on the part of the University. While DWUEU-ALU was opening all
possible avenues for the conclusion of an agreement, the record is replete with
evidence on the Universitys reluctance and thinly disguised refusal to bargain
with the duly certified bargaining agent, such that the inescapable conclusion is
that the University evidently had no intention of bargaining with it. Thus, while
the Court recognizes that technically, the University has the right to file the
petition for certification election as there was no bargaining deadlock to speak of,
to grant its prayer that the herein assailed Orders be annulled would put an
 unjustified premium on bad faith bargaining.

3.3 Gross violation of the CBA; need not be limited to economic provisions if
GROSS PER SE.
Employees Union of Bayer Phils. vs. Bayer Philippines, GR No. 162943, 06 Dec
2010.

EMPLOYEES UNION OF BAYER VS BAYER PHILIPPINES

ISSUE:
WON THE ACT OF BAYER IN NEGOTIATING WITH REMIGIO AND
OTHER UNION MEMBERS OF EUB DURING THE PENDENCY OF
THE DISPUTE, DESPITE ITS VALIDLY EXISTING CBA WITH EUB,
CAN BE CONSIDERED AS ULP?
RULING:
YES.
Thus, when a valid and binding CBA had been entered into by the workers and
the employer, the latter is behooved to observe the terms and conditions thereof
bearing on union dues and representation. If the employer grossly violates its
CBA with the duly recognized union, the former may be held administratively
and criminally liable for unfair labor practice.
When an employer proceeds to negotiate with a splinter union despite the
existence of its valid CBA with the duly certified and exclusive bargaining agent,
the former indubitably abandons its recognition of the latter and terminates the
entire CBA.
Bayer, Lonishen and Amistoso argue that the case is already moot and academic
following the lapse of the 1997-2001 CBA and their renegotiation with EUBP for
the 2006-2007 CBA. They also reason that the act of the company in negotiating
with EUBP for the 2006-2007 CBA is an obvious recognition on their part that
EUBP is now the certified collective bargaining agent of its rank-and-file
employees.
We do not agree. First, a legitimate labor organization cannot be construed to
have abandoned its pending claim against the management/employer by returning
to the negotiating table to fulfill its duty to represent the interest of its members,
except when the pending claim has been expressly waived or compromised in its
subsequent negotiations with the management. To hold otherwise would be
tantamount to subjecting industrial peace to the precondition that previous claims
that labor may have against capital must first be waived or abandoned before
negotiations between them may resume. Undoubtedly, this would be against
public policy of affording protection to labor and will encourage scheming
employers to commit unlawful acts without fear of being sanctioned in the future.
Second, that the management of Bayer decided to recognize EUBP as the certified
collective bargaining agent of its rank-and-file employees for purposes of its
2006-2007 CBA negotiations is of no moment. It did not obliterate the fact that
 the management of Bayer had withdrawn its recognition of EUBP and supported
REUBP during the tumultuous implementation of the 1997-2001 CBA. Such act
of interference which is violative of the existing CBA with EUBP led to the filing
of the subject complaint.

4. Unfair Labor Practices of labor organizations, Art. 249 LC

5. When not ULP:

Suspension of CBA due to financial losses not ULP:

Manila Mining Corp. Employees Association, et al. vs.. Manila Mining
corp, et al., G.R. Nos. 178222-23, 29 September 2010

Manila Mining Corp. Employees Association, et al. vs. Manila Mining Corp., et
al
GR Nos. 178222-23, September 29, 2010

Issue: Whether Manila Mining Corporation (MMCs) suspension of negotiations on

the CBA with the Union due to its lay-off constitutes unfair labor practice.

Ruling: NO. The lay-off is neither illegal nor can it be considered as unfair labor
practice. Unfair labor practice cannot be imputed to MMC since the call of MMC for
a suspension of the CBA negotiations cannot be equated to "refusal to bargain."
For a charge of unfair labor practice to prosper, it must be shown that the employer
was motivated by ill-will, bad faith or fraud, or was oppressive to labor. The
employer must have acted in a manner contrary to morals, good customs, or public
policy causing social humiliation, wounded feelings or grave anxiety. While the law
makes it an obligation for the employer and the employees to bargain collectively
with each other, such compulsion does not include the commitment to precipitately
accept or agree to the proposals of the other. All it contemplates is that both
parties should approach the negotiation with an open mind and make reasonable
effort to reach a common ground of agreement.

The Union based its contention on the letter request by MMC for the suspension of
the collective bargaining negotiations until it resumes operations.23 Verily, it
cannot be said that MMC deliberately avoided the negotiation. It merely sought a
suspension and in fact, even expressed its willingness to negotiate once the
mining operations resume. There was valid reliance on the suspension of mining
operations for the suspension, in turn, of the CBA negotiation. The Union failed to
prove bad faith in MMCs actuations.

L. STRIKES, PICKETING AND LOCK-OUTS

Art. 263 - 266, Labor Code
Rule 8, Secs. 1-14, Impl. Rules and Reglns.
Dept. Order No. 9 [1997], Rule XXII, Secs. 1-14
Department Order No. 40, [17 February 2003]

1. Constitutional basis and definition

DO 40, S1, R1 (uu to ww)

1.1 Mass leave is not equivalent to a strike. --

Alex Q. Naranjo, et al. vs. Biomedica Health Care, Inc., et al. G.R. No.
193789, 19 September 2012

Issue:

Whether the petitioners were dismissed lawfully

Ruling:

No. Petitioners were charged with conducting an illegal strike, not a mass
leave, without specifying the exact acts that the company considers as
constituting an illegal strike or violation of company policies. Such allegation
falls short of the requirement in King of Kings Transport, Inc. of a detailed
narration of the facts and circumstances that will serve as basis for the
charge against the employees. A bare mention of an illegal strike will not
suffice.

It is incumbent upon respondent company to show that petitioners were duly

informed of said company policies at the time of their employment and were
given copies of these policies. No such proof was presented by
respondents. There was even no mention at all that such requirement was
met.

Worse, respondent Biomedica did not even quote or reproduce the

company policies referred to in the notice as pointed out by the CA stating:
It must be noted that the company policy which the petitioner was referring
to was not quoted or reproduced in the petition, a copy of which is not also
appended in the petition, as such we cannot determine the veracity of the
existence of said policy.

It bears pointing out that in the dismissal of an employee, the law requires
that due process be observed. Such due process requirement is two-fold,
procedural and substantive, that is, the termination of employment must be
based on a just or authorized cause of dismissal and the dismissal must be
 effected after due notice and hearing. In the instant case, petitioners were
not afforded both procedural and substantive due process.

2. Who may declare a strike or lock-out; when it may be declared

B5 R8 S2 IRR; Dept. Order No. 9, Rule XXII, Sec. 1-2

3. Requisites for valid strike or lock-out:

Dept. Order No. 9, Rule XXII, Sec. 1

SIX CATEGORIES OF ILLEGAL STRIKE :Toyota Motor Phils Workers Assn.

(TMPCWA) vs. NLRC, 537 SCRA 171 (2007).

3.1 Lawful purpose

3.1.1 Economic strike/lock-out; Deadlock defined

Capitol Medical Center Alliance vs. Laguesma, supra.,
267 SCRA 503 [1997]

Tabangao Shell Refinery Employees Association Vs. Pilipinas Shell

Petroleum Corporation, G.R. No. 170007, 07 April 2014, J. Leonardo-De
Castro

Issue:

Whether the union is correct in saying that, bad faith bargaining and a CBA deadlock cannot
legally co-exist because an impasse in negotiations can only exist on the premise that both
parties are bargaining in good faith.

Ruling:

No. The issue of whether there was already deadlock between the union and the company
is likewise a question of fact. It requires the determination of evidence to find whether there is a
counteraction of forces between the union and the company and whether each of the parties
exerted reasonable effort at good faith bargaining. This is so because a deadlock is defined as
follows: A deadlock is the counteraction of things producing entire stoppage; There is a
deadlock when there is a complete blocking or stoppage resulting from the action of equal and
opposed forces. The word is synonymous with the word impasse, which presupposes
reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in
agreement between the parties.

While the purpose of collective bargaining is the reaching of an agreement between the
employer and the employees union resulting in a binding contract between the parties, the
failure to reach an agreement after negotiations continued for a reasonable period does not
mean lack of good faith.
 The laws invite and contemplate a collective bargaining contract but do not compel one.
For after all, a CBA, like any contract is a product of mutual consent and not of compulsion. As
such, the duty to bargain does not include the obligation to reach an agreement. In this light, the
corporations unswerving position on the matter of annual lump sum payment in lieu of wage
increase did not, by itself, constitute bad faith even if such position caused a stalemate in the
negotiations, as correctly ruled by the Secretary of Labor and Employment in the decision dated
June 8, 2005.

3.1.2 ULP strike/lock-out

cf. Arts. 248-249, LC

Filing of petition for cancellation of Unions registration is not per se an

act of ULP
Rural Bank of Alaminos Employees Union vs. NLRC, 317 SCRA 669 (1999)

Welga ng Bayan not a valid purpose -

Biflex Phils. Labor Union (NAFLU) vs. Filflex Indl and Mfg., 511 SCRA 247
[2007]

NAFLU VS. FILFLEX INDUSTRIAL AND MANUFACTURING

ISSUE:
WON THE STOPPAGE OF WORK DUE TO WELGA NG BAYAN OF
THE OFFICERS OF NAFLU, THE UNION IN THIS CASE, IS
ILLEGAL FOR FAILURE TO COMPLY WITH PROCEDURAL
REQUIREMENTS?
RULING:
YES.
Stoppage of work due to welga ng bayan is in the nature of a general strike, an
extended sympathy strike. It affects numerous employers including those who
do not have a dispute with their employees regarding their terms and
conditions of employment. Employees who have no labor dispute with their
employer but who, on a day they are scheduled to work, refuse to work and
instead join a welga ng bayan commit an illegal work stoppage.
There being no showing that petitioners notified respondents of their
intention, or that they were allowed by respondents, to join the welga ng
bayan on October 24, 1990, their work stoppage is beyond legal protection.

No lawful purpose when conducted by a union which is not a legitimate

labor organization
Manila Diamond Hotel vs. Manila Diamond Hotel Employees Union, G.R. No.
158075, 30 June 2006

Manila Diamond Hotel vs. Manila Diamond Hotel Employees Union

 G.R. No. 158075. June 30, 2006.

ISSUE: Whether a Union which is not the exclusive representative of the

employees in such unit
For the purpose of collective bargaining may validly declare a strike in behalf
of its members.

HELD: NO. Only the labor organization designated or selected by the

majority of the employees in an appropriate collective bargaining unit is the
exclusive representative of the employees in such unit for the purpose of
collective bargaining. The union is admittedly not the exclusive representative
of the majority of the employees of petitioner, hence, it could not demand
from petitioner the right to bargain collectively in their behalf.

It bears noting that the goal of the DOLE is geared towards a single employer
wide unit which is more to the broader and greater benefit of the employees
working force. The philosophy is to avoid fragmentation of the bargaining
unit so as to strengthen the employees bargaining power with the
management. To veer away from such goal would be contrary, inimical and
repugnant to the objectives of a strong and dynamic unionism. Petitioners
refusal to bargain then with respondent cannot be considered a ULP to justify
the staging of the strike.

Even if the purpose of a strike is valid, the strike may still be held illegal
where the means employed are illegal. Thus, the employment of violence,
intimidation, restraint or coercion in carrying out concerted activities which
are injurious to the rights to property renders a strike illegal.
And so is picketing or the obstruction to the free use of property or the
comfortable enjoyment of life or property, when accompanied by
intimidation, threats, violence, and coercion as to constitute nuisance. The
photographs show that some of the workers-strikers who joined the strike
indeed committed illegal actsblocking the free ingress to and egress from
the Hotel, holding noise barrage, threatening guests, and the like. The
photographs indicate that indeed the strikers held noise barrage and threatened
guests with bodily harm. The police reports mention about the strikers
exploding of firecrackers, causing the guests to panic and transfer to other
areas of the Hotel.

Abaria vs. NLRC, GR 154113. 07 December 2011.

3.2 Lawful means

3.2.1 Art. 264 (b) and (e), LC

3.2.2 Guidelines on Removal of Illegal Blockades at Factory Gates,

 DOLE Memorandum dated 22 October 1987

3.2.3 Guidelines for the Conduct of INP/AFP Personnel

during Strikes, Lock-outs and Labor Disputes in General,
effective 22 October 1987

3.2.4 Dept. Order No. 9, Rule 22, Secs. 10-13

Note: Violence committed on both sides during the strike

Malayang Samahan ng mga Manggagawa sa M Greenfield vs. Ramos,

326 SCRA 428 [2000]

ISSUE: WON the strike is illegal because of violence

RULING: NO.
On the allegation of violence committed in the course of the strike, it must be
remembered that the Labor Arbiter and the Commission found that "the
parties are agreed that there were violent incidents x x x resulting to injuries
to both sides, the union and management." The evidence on record show that
the violence cannot be attributed to the striking employees alone for the
company itself employed hired men to pacify the strikers. With violence
committed on both sides, the management and the employees, such violence
cannot be a ground for declaring the strike as illegal.

3.2.5 Liability of Union officers and members in illegal strikes

Allied Banking Corp. vs. NLRC, 258 SCRA 724 [1996]

Allied Banking Corp. vs. NLRC, 258 SCRA 724 [1996]

ISSUE: Whether the union officers who participated in a strike after the
Secretary of Labor and Employment has assumed jurisdiction over the labor
dispute are considered to have lost their employment status. YES.

RULING: The respective liabilities of striking union officers and members

who failed to immediately comply with the return-to-work order, are clearly
spelled out in Article 264 of the Labor Code which provides that any
declaration of a strike or lockout after the Secretary of Labor and
Employment has assumed jurisdiction over the labor dispute is considered
an illegal act. Therefore, any worker or union officer who knowingly
participates in a strike defying a return-to-work order may as a result thereof
be considered to have lost his employment status.

Furthermore, as non-compliance with an assumption or certification order is

considered as an illegal act committed in the course of a strike, the Ministry of
 Labor and Employment (now DOLE) is authorize to impose such sanctions as may
be provided for by law which may include the hiring of replacements for workers
defying the order.

C. Alcantara & Sons, Inc. vs. Court of Appeals / Nagkahiusang

Mamumuno sa Alsons-SPFL (NAMAAL-SPFL), et al. vs. C.
Alcantara & Sons, Inc., et al. / Nagkahiusang Mamumuno sa
Alsons-SPFL (NAMAAL-SPFL), et al. vs. C. Alcantara & Sons,
Inc., et al., G.R. No. 155109/G.R. No. 155135/G.R. No. 179220, 29 September
2010.

3.3 Compliance with procedural requirements

3.3.1 Strike vote/Lock-out vote (Dept. Order No. 9, R22, S7-8)

Samahan ng Manggagawa sa Moldex vs. NLRC,
324 SCRa 242 [2000]

Samahan ng Manggagawa sa Moldex Products, Inc. vs. NLRC

G.R. No. 119467. February 1, 2000.
PURISIMA, J.:

Facts: In the earlier part of 1993, petitioners and private respondents

negotiated for the renewal of their Collective Bargaining Agreement
(CBA). Due to some economic differences, the negotiations ended
in a deadlock.

On April 2, 1993, petitioners filed a notice of strike with the National

Conciliation and Mediation Board (NCMB). The series of
conferences proved unavailing.

On April 24, 1993, petitioner Union conducted a strike vote among its
members, and the results of the voting were thereafter conveyed to
the Alliance of Nationalist and Genuine Labor Organization
(ANGLO) for submission to the NCMB, but for some unknown
reason, the same was not made.

Issue: Whether the strike is illegal?

Held: Yes. A strike staged without the submission of the results of

the strike-vote is illegal.
 It has been shown that the results of the strike-vote were never
forwarded to the NCMB, as admitted by petitioners themselves and
as attested to by a Certification of Non-Submission of Strike Vote
issued by the NCMB. There is thus no need for additional evidence
on the matter, as it would not change the fact that the results of the
strike-vote were not submitted to the NCMB. Without the submission
of the results of the strike-vote, the strike was illegal, pursuant to
Article 264 of the Labor Code, which reads:

ART. 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.
xxx
Any worker whose employment has been terminated as a
consequence of an unlawful lockout shall be entitled to reinstatement
with full back wages. Any union officer who knowingly participates in
a 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.

Neither is there any need to remand the case to determine whether

petitioners were sent notices or copies of the petition and whether the
service of a copy of private respondents (Moldex) formal offer of
evidence with the federation, ANGLO, instead of petitioners counsel,
was valid. In their Memorandum (paragraph 31), petitioners deny
ever making such a claim. And if ever they made such claim, they are
now waiving such irregularity, dispensing with the need of resolving
the same.

3.3.2 Notice of strike/lock-out (Dept. Order 9, R22, S3-5)

San Miguel Corporation vs. NLRC, 304 SCRA 1 [1999]

 Issue: Whether NLRC is correct in dismissing the complaint of petitioner SMC for
the dismissal of the notice of strike, issuance of a temporary restraining order, and an
order compelling the respondent union to settle the dispute under the grievance
machinery of their CBA.

Ruling: No. The NLRC is incorrect.

Rule XXII, Section I, of the Rules and Regulations Implementing Book V the Labor
Code provides for the grounds for strikes and lockouts such as bargaining deadlocks
and unfair labor practices. Collective Bargaining Deadlock is defined as the situation
between the labor and the management of the company where there is failure in the
collective bargaining negotiations resulting in a stalemate.

This situation, is non-existent in the present case since there is a Board assigned on
the third level (Step 3) of the grievance machinery to resolve the conflicting views of
the parties. Instead of asking the Conciliation Board composed of five representatives
each from the company and the union, to decide the conflict, petitioner declared a
deadlock, and thereafter, filed a notice of strike. For failing to exhaust all the steps in
the grievance machinery and arbitration proceedings provided in the Collective
Bargaining Agreement, the notice of strike should have been dismissed by the NLRC
and private respondent union ordered to proceed with the grievance and arbitration
proceedings.

Filipino Pipe and Foundry Corp. vs. NLRC, 318 SCRA 68 [1999]
ISSUE: Whether the strike staged by the union were not in compliance with the
procedural requirements of notice of strike, hence illegal.
RULING: Yes. The strike staged by FPWU-NLU was illegal for want of any legal basis.
A thorough sifting of the pertinent records discloses that the alleged union busting was
not substantiated and the supposed non-implementation of the collective bargaining
agreement was groundless because the demands of FPWU-NLU, at the time the notice of
strike was filed and at the time the union actually struck, were the subject of a pending
application for a writ of execution filed by the union in Case No. AB-7933-80 (NCR-CA-
8-674-80), which application was granted on April 4, 1986 by the Labor Arbiter. Verily,
the strike staged by FPWU-NLU was baseless since it was still premature then for the
union to insist on the implementation of the adverted provision of the collective
bargaining agreement, which was the subject of a pending writ of execution.
Then too, the failure of the union to serve petitioner company a copy of the notice of
strike is a clear violation of Section 3 of the aforestated Rules. The constitutional precepts
of due process mandate that the other party be notified of the adverse action of the
opposing party. So also, the same Section provides for a mandatory thirty (30) day
cooling-off period which the union ignored when it struck on March 3, 1986, before the
30th day from the time the notice of strike was filed on February 10, 1986.
What is more, the same strike blatantly disregarded the prohibition on the doing of any
act which may impede or disrupt the conciliation proceedings, when the union staged the
strike in the early morning of March 3, 1986, the very same day the conciliation
conference was scheduled by the former Ministry of Labor.

3.3.3 Cooling-off period

a. Economic strike: 30 days
b. ULP strike: 15 days
c. Exceptions - Art. 263 (b); B5 R8 S3, IRR

3.3.4 Seven-day strike ban

National Fedn. of Sugar Workers vs. Ovejera, 114 SCRA 354
First City Interlink vs. Roldan-Confesor, 272 SCRA 124 [1997]

3.3.5 Conciliation proceedings (Dept. Order 9, R22, S6)

GTE Directories vs. Sanchez, 197 SCRA 452

Issue: Whether the unions objections to, or request for reconsideration of those regulations or policies
automatically suspend enforcement thereof and excuse the employees refusal to comply with the same.

Held: No. The filing of the strike notice, and the commencement of conciliation activities by the Bureau of
Labor Relations did not operate to make GTEs orders illegal and unenforceable so as to excuse
continued non-compliance therewith. When the strike notice was filed by the union, the chain of events
which culminated in the termination of the 14 salespersons employment was already taking place, the
series of defiant refusals by said sales representatives to comply with GTEs requirement to submit
individual reports was already in progress. At that time, no less than three (3) of the ultimate six (6) direct
orders of the employer for the submission of the reports had already been disobeyed. The filing of the
strike notice, and the commencement of conciliation activities by the Bureau of Labor Relations did not
operate to make GTEs orders illegal or unenforceable so as to excuse continued non-compliance
therewith. It does not follow that just because the employees or their union are unable to realize or
appreciate the desirability of their employers policies or rules, the latter were laid down to oppress the
former and subvert legitimate union activities. Indeed, the overt, direct, deliberate and continued defiance
and disregard by the employees of the authority of their employer left the latter with no alternative except
to impose sanctions. The sanction of suspension having proved futile, termination of employment was the
only option left to the employer.

San Miguel Corp vs. NLRC, 403 SCRA 418 [10 June 2003]

3.3.6 Improved offer balloting (Dept. Order 9, R22, S9)

3.4 Good faith strike

Phil. Metal Foundries vs. CIR, 90 SCRA 135

CONTRA: Not a good defense in cases of procedural infirmity

Grand Boulevard Hotel vs. Genuine Labor Organizations of Workers in Hotel
Restaurant and Allied Industries, G.R. No. 1534664, 18 July 2003
Issue:

Is good faith a defense in cases of procedural infirmity in executing the strike?

Held:

No.

The requirements as the filing of a notice of strike, strike vote, and notice given to the Department of
Labor are mandatory in nature.

Even if the union acted in good faith in the belief that the company was committing an unfair labor
practice, if no notice of strike and a strike vote were conducted, the said strike is illegal.

4. Effect of a no strike/no lock-out clause in CBA

Master Iron Labor Union vs. NLRC, 17 Feb. 1993

Issue:
W/N the No Strike-No Lockout clause in the CBA applies in this case where the
respondent corporation despite the agreement in the CBA contracted workers to do the job of
their regular workers.
Held:
No, the No Strike-No Lockout clause in the CBA applies only to economic strikes; it does
not apply to ULP strikes. Hence, if the strike is founded on an unfair labor practice of the
employer, a strike declared by the union cannot be considered a violation of the no-strike
clause.

5. Assumption of Jurisdiction by Secretary of Labor or Certification of the labor

dispute to the NLRC for Compulsory Arbitration, Art. 264 (g), LC
Telefunken Semi-conductors Ees Union-FFW vs. CA, 348 SCRA 565 [2000]

ISSUE: WON the employees are validly dismissed

RULING: YES.

It is clear from the foregoing legal provision that the moment the Secretary of Labor
assumes jurisdiction over a labor dispute in an industry indispensable to national interest,
such assumption shall have the effect of automatically enjoining the intended or
impending strike. It was not even necessary for the Secretary of Labor to issue another
order directing them to return to work. The mere issuance of an assumption order by the
Secretary of Labor automatically carries with it a return-to-work order, even if the
directive to return to work is not expressly stated in the assumption order. However,
 petitioners refused to acknowledge this directive of the Secretary of Labor on September
8, 1995 thereby necessitating the issuance of another order expressly directing the
striking workers to cease and desist from their actual strike, and to immediately return to
work but which directive the herein petitioners opted to ignore. In this connection, Article
264(a) of the Labor Code clearly provides that:
Article 264. Prohibited Activities.
(a) x x x
No strike or lock out shall be declared after the assumption of jurisdiction by the
President or the Secretary 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.
x x x. Any union officer who knowingly participates in 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. (Emphasis Ours)
The rationale of this prohibition is that once jurisdiction over the labor dispute has been
properly acquired by the competent authority, that jurisdiction should not be interfered
with by the application of the coercive processes of a strike. We have held in a
number of cases that defiance to the assumption and return-to-work orders of the
Secretary of Labor after he has assumed jurisdiction is a valid ground for loss of the
employment status of any striking union officer or member.

5.1 Discretion of the Secretary

FEATI University vs. Bautista, 18 SCRA 1191
Issue:
Whether or not FEATI is an employer within the purview of the Industrial Peace Act

Held:
The Supreme Court denied the petition. Based on RA 875 Sec. 2c The term employer include
any person acting in the interest of an employer, directly or indirectly, but shall not include
any labor organization (otherwise than when acting as an employer) or any one acting in the
capacity or agent of such organization.
In this case, the university is operated for profit hence included in the term of employer.
Professors and instructors, who are under contract to teach particular courses are paid for
their services and are employees under the Industrial Peace Act.
Professors and Instructors are not independent contractors. University controls the work of
the members of its faculty; that a university prescribe the courses or subjects that professors
teach, and when and where to teach; that the professors work is characterized by regularity
and continuity for a fixed duration; that professors are compensated for their services by
wages and salaries, rather than by profits; that the professors and/or instructors cannot
 substitute others to do their work without the consent of the university; and that the
professors can be laid off if their work is found not satisfactory. All these indicate that the
university has control over their work; and professors are, therefore, employees and not
independent contractors.

Extent of discretion:

May order the suspension of the termination aspect of a labor dispute -

University of Immaculate Concepcion, Inc. vs. Secretary of Labor, et al., G.R.
No. 151379, 14 Jan. 2009

May give an award higher than what was agreed upon by the management
and union - Cirtek Employees Labor Union FFW vs. Cirtek Electronics, GR
190515, 15 November 2010.

CIRTEK EMPLOYEES LABOR UNION VS. CIRTEK ELECTRONICS

ISSUE:
WON THE SECRETARY OF LABOR IS EMPOWERED TO GIVE ARBITRAL
AWARDS IN THE EXERCISE OF HIS AUTHORITY TO ASSUME JURISDICTION
OVER LABOR DISPUTES?

RULING:
YES.
While an arbitral award cannot per se be categorized as an agreement voluntarily entered into by
the parties because it requires the interference and imposing power of the State thru the Secretary
of Labor when he assumes jurisdiction, the award can be considered as an approximation of a
collective bargaining agreement which would otherwise have been entered into by the parties.
Hence, it has the force and effect of a valid contract obligation between the parties.
As for the contention that the alleged disaffiliation of the Union from the FFW during the
pendency of the case resulted in the FFW losing its personality to represent the Union, the same
does not affect the Courts upholding of the authority of the Secretary of Labor to impose arbitral
awards higher than what was supposedly agreed upon in the MOA. Contrary to respondents
assertion, the unavoidable issue of disaffiliation bears no significant legal repercussions to
warrant the reversal of the Courts Decision. At all events, the issue of disaffiliation is an intra-
union dispute which must be resolved in a different forum in an action at the instance of either or
both the FFW and the Union or a rival labor organization, not the employer.

5.2 Nature and Effect of Assumption and Certification Orders

Payroll reinstatement in lieu of actual reinstatement during strike

proceedings
Manila Diamond Hotel Employees Union vs. Court of Appeals, et al., G.R. No.
140518, 12/16/2004

5.3 Effect of Defiance of Return-to-Work Orders

 a) Hearing not necessary; akin to contempt of court

St. Scholasticas College vs. Hon. Ruben Torres, 210 SCRA 565

Issue: Whether the Unions assailing of the Secretarys jurisdiction justifies their failure to
immediately comply with the return-to-work order.

Held:NO.
Article 263 (g) of the Labor Code provides that if a strike has already taken place at the time of
assumption, all striking employees shall immediately return to work. This means that by its very terms, a
return-to-work order is immediately effective and executory notwithstanding the filing of a motion for
reconsideration. It must be strictly complied with even during the pendency of any petition questioning its
validity. Private respondent UNION were of the impression that being an academic institution, the school
could not be considered an industry indispensable to national interest, and that pending resolution of the
issue on jurisdiction, they were under no obligation to immediately return to work. This position of the
UNION is simply flawed. Respondent UNION's failure to immediately comply with the return-to-work order
of 5 November 1990, therefore, cannot be condoned.

Allied Banking Corp. vs. NLRC, supra. 258 SCRA 724 [1996]

Issue: Whether the striking union members were validly terminated for abandonment of work after
failing to obey the return-to-work order of the Secretary of Labor and Employment.

Held: YES.
The respective liabilities of striking union officers and members who failed to immediately comply with the
return-to-work order, are clearly spelled out in Article 264 of the Labor Code which provides that any
declaration of a strike or lockout after the Secretary of Labor and Employment has assumed jurisdiction
over the labor dispute is considered an illegal act. Therefore, any worker or union officer who knowingly
participates in a strike defying a return-to-work order may as a result thereof be considered to have lost
his employment status. Respondents were validly dismissed considering their defiance of the return-to-
work order issued by the Secretary of Labor. As a consequence of such defiance, they are considered
severed from their employment.

Telefunken Semi-conductors, supra.

Issue: Whether the striking union members were validly terminated after defying the return-to-
work orders of the Secretary.

Held: YES.
It has been held in a number of cases that defiance to the assumption and return-to-work orders of the
Secretary of Labor after he has assumed jurisdiction is a valid ground for loss of the employment status of
any striking union officer or member. Here, the strike of the Union cannot be viewed as anything but
illegal for having been staged in open and knowing defiance of the assumption and return-to-work orders.
The necessary consequence thereof is that workers forfeited their right to be readmitted to work. Having
abandoned their employment, they so could be validly replaced.

CONTRA: New twist on defiance of return to work order

Solidbank vs. Gamier et al, GR 159460, 15 Nov 2010; Solidbank vs.

Solidbank Union et al., GR 159461, 15 Nov 2010

Issue: Whether the respondents were validly terminated despite refusal to comply with the offer of
the management to report back to work.
Held: NO.
The Court has consistently ruled that once the Secretary of Labor assumes jurisdiction over a labor
dispute, such jurisdiction should not be interfered with by the application of the coercive processes of a
strike or lockout.] A strike that is undertaken despite the issuance by the Secretary of Labor of an
assumption order and/or certification is a prohibited activity and thus illegal. Article 264 (a) of the Labor
Code also considers it a prohibited activity to declare a strike during the pendency of cases involving the
same grounds for the same strike. There is no dispute that when respondents conducted their mass
actions on April 3 to 6, 2000, the proceedings before the Secretary of Labor were still pending as both
parties filed motions for reconsideration of the March 24, 2000 Order. Clearly, respondents knowingly
violated the aforesaid provision by holding a strike in the guise of mass demonstration simultaneous with
concerted work abandonment/boycott.

However, under Article 264 (a) of the Labor Code, a worker merely participating in an illegal strike may
not be terminated from employment. It is only when he commits illegal acts during a strike that he may be
declared to have lost employment status. Hence, with respect to respondents who are union officers, the
validity of their termination by petitioners cannot be questioned. Being fully aware that the proceedings
before the Secretary of Labor were still pending as in fact they filed a motion for reconsideration of the
March 24, 2000 Order, they cannot invoke good faith as a defense. For the rest of the individual
respondents who are union members, the rule is that an ordinary striking worker cannot be terminated for
mere participation in an illegal strike. There must be proof that he or she committed illegal acts during a
strike. In all cases, the striker must be identified. But proof beyond reasonable doubt is not required.
Substantial evidence available under the attendant circumstances, which may justify the imposition of the
penalty of dismissal, may suffice. Liability for prohibited acts is to be determined on an individual basis.
The dismissal of herein respondent-union members is therefore unjustified in the absence of a clear
showing that they committed specific illegal acts during the mass actions and concerted work boycott.

b) May ordinary workers who were reinstated due to dismissal for

participation in an illegal strike, be entitled to payment of backwages?
Danilo Escario et al vs. NLRC, GR 160302, 27 Sept 2010.

ISSUE: Are ordinary workers who were reinstated due to dismissal for their participation
in an illegal strike, entitled to payment of backwages?

HELD: NO.
Conformably with the long honored principle of a fair day's wage for a fair day's labor,
employees dismissed for joining an illegal strike are not entitled to backwages for the
period of the strike even if they are reinstated by virtue of their being merely members of
the striking union who did not commit any illegal act during the strike.

By its use of the phrase unjustly dismissed, Article 279 refers to a dismissal that is
unjustly done, that is, the employer dismisses the employee without observing due
process, either substantive or procedural. Substantive due process requires the
attendance of any of the just or authorized causes for terminating an employee as
provided under Articles 278, 283 or 284 of the Labor Code; while procedural due
process demands compliance with the twin-notice requirement.

6. Picketing and other forms of concerted activities

Dept. Order No. 9, Rule 22, Sec. 12
6.1 Nature of picketing
- includes stationing persons at the site of the labor dispute,
or even at run-away shop

MSF Tire and Rubber vs. Court of Appeals, 311 SCRA 784 [1999]
Issue: Does the innocent bystander rule apply to the petitioner?
Holding: An innocent bystander, who seeks to enjoin a labor strike, must satisfy the
court that aside from the grounds specified in Rule 58 of the Rules of Court, it is entirely
different from, without any connection whatsoever to, either party to the dispute and,
therefore, its interests are totally foreign to the context thereof.
The fact that private respondent uses the same plant or factory; similar or substantially
the same working conditions; same machinery, tools, and equipment; and manufacture
the same products as Philtread, lead us to safely conclude that private respondents
personality is so closely linked to Philtread as to bar its entitlement to an injunctive writ.
Petitioner is not an innocent bystander.

PAFLU vs Cloribel, 28 March 1969

Issue: Does the innocent bystander rule apply to protect Wellington and Galang?
Holding: Wellington and Galang are mere "innocent bystanders". They are entitled to
seek protection of their rights from the courts and the courts may, accordingly, legally
extend the same. Moreover, PAFLU's right to peacefully picket METBANK is not curtailed
by the injunctions issued by respondent judge. The picket is merely regulated to protect
the rights of third parties.
Doctrine: The right to picket as a means of communicating the facts of a labor dispute is
a phase of the freedom of speech guaranteed by the constitution. If peacefully carried
out, it can not be curtailed even in the absence of employer-employee relationship.
The right is, however, not an absolute one. While peaceful picketing is entitled to
protection as an exercise of free speech, we believe the courts are not without power to
confine or localize the sphere of communication or the demonstration to the parties to the
labor dispute, including those with related interest, and to insulate establishments or
persons with no industrial connection or having interest totally foreign to the context of
the dispute. Thus the right may be regulated at the instance of third parties or innocent
bystanders if it appears that the inevitable result of its exercise is to create an impression
that a labor dispute with which they have no connection or interest exists between them
and the picketing union or constitute an invasion of their rights.

Sta. Rosa Coca-Cola Plant EEs Union vs. Coca-Cola Bottlers Phils. Inc., 512
SCRA 437 [2007]

ISSUE: Whether the employees staged a strike or merely picketing

HELD: They staged a strike.

Article 212(o) of the Labor Code defines strike as a temporary stoppage of work by the
concerted action of employees as a result of an industrial or labor dispute. The term
strike encompasses not only concerted work stoppages, but also slowdowns, mass
leaves, sit-downs, attempts to damage, destroy or sabotage plant equipment and
facilities, and similar activities.
Picketing involves merely the marching to and fro at the premises of the employer,
usually accompanied by the display of placards and other signs making known the facts
involved in a labor dispute.

The basic elements of a strike are present in this case: 106 members of petitioner Union,
whose respective applications for leave of absence were disapproved, opted not to report
 for work on said date, and gathered in front of the company premises to hold a mass
protest action. Petitioners deliberately absented themselves and instead wore red
ribbons, carried placards with slogans such as: YES KAMI SA STRIKE, PROTESTA
KAMI, SAHOD, KARAPATAN NG MANGGAGAWA IPAGLABAN, CBA-WAG
BABOYIN, STOP UNION BUSTING. They marched to and fro in front of the companys
premises during working hours. Thus, petitioners engaged in a concerted activity which
already affected the companys operations. The mass concerted activity constituted a
strike.

The bare fact that petitioners were given a Mayors permit is not conclusive evidence that
their action/activity did not amount to a strike. What is definitive of whether the action
staged by petitioners is a strike and not merely a picket is the totality of the
circumstances surrounding the situation.

6.2 Limitations:

6.2.1. Moving picket

6.2.2 Must not affect neutral parties
Liwayway Publications vs. Permanent Concrete
Workers Union, 23 Oct. 1981
6.2.3 Private homes not allowed
6.2.4 Without violence and intimidation

6.3 Other forms of concerted activities