Art.
277 (263) – Strikes, Picketing and Lockouts
(a)Policy of the state to encourage free trade
unionism & free collective bargaining
(c) In cases of Bargaining deadlocks
 duly recognized bargaining agent may
file a notice of strike (NS)
 ER may file a notice of lockout
With the Ministry; atleast 30 days b4 intended
date
In cases of ULP – period of notice is 15days
in the absence of duly recognized bargaining
agent, any LLO may file NS
In cases of dismissal fr EET of union officers
which may constitute union busting where
existence of union is threatened
- 15day cooling off period shall not apply; union
may take action immediately
(e) During cooling-off period – duty of Ministry to
exert all efforts at mediation & conciliation to
effect voluntary settlement
If dispute remains unsettled (until lapse of
period) – LU may strike or ER may declare
lockout
(f) Decision to declare a strike - approved by
majority of total union membership in BU
Obtained by secret ballot in meetings or
referenda called for that purpose
Decision to declare a lockout – approved by
majority of Board of Directors or corp, assoc or
partners in a partnership
Note: decision shall be valid for the duration of
the dispute based on substantially the same
grounds considered when strike/lockout vote was
taken
Union or ER shall furnish the Ministry the results
of the voting (Strike Vote Report) atleast 7days
b4 intended strike/lockout subj to the cooling
period
(g) When in his opinion, there exists a labor
dispute causing or likely to cause a strike or
lockout in an industry indispensable to national
interest
- SoLE may assume jurisdiction over the dispute
and 1. Decide it; or 2. Certify the same to NLRC
for compulsory arbitration
Effect (assumption or certification):
- automatically enjoining the intended or
impending strike/lockout as specified in the
assumption or certification order
If one has already taken place at the time of
assumption/certification
- all striking or locked out EEs shall immediately
return to work & ER shall immediately resume
operations and readmit all workers under same
terms & conditions of EET prevailing b4
strike/lockout
Aglosolos_LabRelNotes2017
Strikes/lockouts in hospitals – duty of striking
union or locking out ER to provide and maintain
a skeletal workforce
SoLE is mandated to immediately assume within
24hrs fr knowledge of occurrence of such
strike/lockout; jurisdiction over the same or
certify it to NLRC for compulsory arbitration
President is not precluded fr determining
industries that in his opinion are indispensable to
the natl interest & fr intervening at any time &
assuming jurisdiction over any such labor dispute
to settle or terminate it
(h) Before or at any stage of the compulsory
arbitration process
- parties may opt to submit their dispute to VA-
ion
(i) SoLE, NLRC or VA – decide or resolve the
dispute within 30 calendar days fr
1. date of assumption of jurisdiction or
2. certification or submission of the dispute
As the case may be
Decision of Pres, SoLE, NLRC or VA – final &
executory 10 calendar days after receipt by
parties
Art. 278 (264) – Prohibited Activities
(a) No LO or ER shall declare a strike or lockout
–
1. without 1st having bargain collectively or
2. without the necessary strike or lockout vote
report 1st having been obtained & reported to
Ministry
No strike or lockout shall be declared
1. after assumption of jurisdiction by Pres or
Ministry (SoLE?) or
2. after certification or submission of dispute to
compulsory or voluntary arbitration, or
3. during pendency of cases involving same
grounds for strike/lockout
ANY worker whose EET has been terminated as a
consequence of an unlawful strike or lockout –
entitled to:
1. Reinstatement
2. with full backwages
Union officer – knowingly participates in an
illegal strike*
Any worker or union officer – knowingly
participates in commission of illegal acts during a
strike*
*may be declared (by ER?) to have lost his EET
status
Mere participation of a worker in a lawful strike –
not sufficient ground for termination of his EET
even if a replacement had been hired by ER
during such lawful strike
(b; c & d) – refer to CODAL
(e) No person engaged in picketing shall:
Page 1
1. commit any act of violence, coercion or
intimidation (VCI); or
2. obstruct the free ingress or egress fr ER’s
premises for lawful purposes, or
3. obstruct public thoroughfares
The Right to engage in concerted activities
Art 13 Sec3 Consti – guarantee RTSO, CB and
negotiation, peaceful concerted activities,
including the right to strike in acc with law*
*means that State can enact reasonable laws
which can expand or even diminish the coverage
of the right to strike
Concerted Activity by one
Concerted – when an activity is planned &
accomplished by people acting together
Instances may arise when an individual acting
alone may be deemed engaged in concerted
activity – if EE is seeking to induce group activity
or is acting as representative
Concerted activity (jurisprudentially defined) –
one undertaken by 2 or more EEs or by 1 on
behalf of others
Nature of strike
Strike (defined) – cessation of work by EEs in an
effort to get more favorable terms for
themselves or as a concerted refusal by EEs to
do any work for their ER or to work at their
customary rate of speed until object of strike is
attained by ER’s granting the demanded
concession
Strike Defined by Art. 212(o)
- any temporary stoppage of work by the
concerted action of EEs as a result of an
industrial or labor dispute
A strike may be legally held because of either or
both:
1. CB deadlock
2. ULP act of ER
Characteristics of Strike
1. With established relationship between strikers
& person/s against whom strike is called
2. There must be ER-EE relationship
3. There exists a dispute
4. EET relationship is deemed to continue
5. temporary work stoppage
6. thru concerted action of EEs
7. striking group is LLO; in case of bargaining
deadlock EEs sole bargaining representative
Basic Objective
A strike is a coercive activity resorted to by
laborers to enforce their demands
Strikers by going on strike seek to interrupt &
paralyze the business & production of the
company
Because of this threat or danger of loss to the
company, it does frequently give in to demands
of strikers to maintain continuity of its production
Aglosolos_LabRelNotes2017
Constitutional Status
On July 17, 1953 Congress gave statutory
recognition to the right to strike when it enacted
RA 875 (Industrial Peace Act)
*Right to strike was prohibited on Sept 21, 1972
upon declaration of martial law
1987 Consti; Art13 Social Justice & Human
Rights (see p.1) – consti imprimatur given to the
right to strike
1935 & 1973 Consti did not accord consti status
to the right to strike
RA 6715 (March 21, 1989) – law implementing
right to strike
Note:
Consti recognition of right to strike
serve as a reminder that injunctions should
be reduced at barest minimum (bernas)
Nature and Definition of lockout (by ER)
Lockout – temporary refusal of any ER to furnish
work as a result of an industrial or labor dispute;
an ER’s act excluding EEs who are union
members fr the plant
Strike & lockout – similar;
1. connote temporary work stoppage
2. occur because of & in relation to a labor or
industrial dispute involving the parties
Diff – identity of doer; strike(done by EEs or
labor union) while lockout(by ER)
Lockout is an act directed at the union itself not
at individual EE-members of union; in a lockout
dismissal is in discipline of union itself
Grounds for strike/lockout
1. CB deadlock
2. ULP act
DO no 40-03 amended by DO 40A-03
Violations of CBAs except flagrant & malicious
refusal to comply with economic provisions – not
ULP; non-strikable
No strike or lockout may be declared on
1. grounds involving inter-union & intra-union
dispute
2. without 1st having files NS or lockout
3. without the necessary strile/lockout vote
having
been obtained & reported to the board (NCMB?)
Not declare strike
1. after assumption of jurisdiction by SoLE or 2.
Certification or submission of dispute to
compulsory or VA-ion or
3. during pendency of cases involving same
grounds for strike/lockout
GR - Like strike, lockout not subj to labor
injunctions
E – cases or for reasons specified such as
1. natl interest cases, 2. Prohibited acts under
Art278 are being committed
Page 2

Requisites of a valid lockout
1. Notice of intention to declare a strike/lockout
filed with DOLE
2. atleast 30days elapsed since filing of the
notice b4 lockout is declared
3. Impasse has resulted in the negotiations
4. strike/lockout is not discriminatory
ER may lockout his EEs to protect his bargaining
positions after an impasse occurs in nego or b4
In ULP ER should show that he is merely
protecting his bargaining positions & not acting
out of hostility or discriminating against union
members
A lockout is valid where in the course of labor
dispute; undertaken as defensive weapon in
pursuance of ERs interest
Kinds of Strike
1. Extent
a. General strike – extends over a whole
community, province, state or country; extended
form of symphatetic strike involving many
workers who cease to work in sympathy with
workers of another ER or to put pressure upon
govt or paralyze present economic & social
systems
b. Local strike –undertaken by workers in a
particular enterprise, locality or occupation
2. Nature of the Act
a. Strike proper
b. Sit-down strike – when a group of EEs or
others interested in obtaining a certain objective
in a particular business; forcibly take over
possession of the property of such business
establish themselves within the plant, stop its
production and refuse access to owners or to
others desiring to work;
taking over of possession by EEs; element of
trespass by strikers upon ppty of ER & refusal to
permit it to be operated
c. Partial or quickie strike – intermittent,
unannounced work stoppage including
slowdowns, unauthorized extension of rest
periods & walk outs for portion or entire shifts
Sometimes used interchangeably with wildcat
strike – work stoppage that violates the labor
contract & is not authorized by the union
*slowdown – willful reduction in the rate of work
by a group of EEs for purpose of restricting
output of ER
3. Degree of EE interest
a. Primary strike – declared by EEs who have a
direct & immediate interest; refers to an original
or initial strike (strike waged by union primarily
aggrieved)
b. Secondary strike –exists where EEs in concert
refuse to remain at work for ER because he
persist in dealing with a 3rd person against whom
they have a grievance; attempt to secure
economic assistance of ER to compel this 3rd
Aglosolos_LabRelNotes2017
person to capitulate top the union over some
issue bet them
c. Sympathetic strike
4. Purpose or Nature of EE Interest
a. Economic Strike – intended to force wage &
other
concessions fr ER which he is not required by law
to grant *also known as bargaining strike –
designed to enforce union position on
bargainable issues;
Striking EEs have no intention to sever EET
relations with ER except temporarily for duration
of strike although ER is free to replace them if he
can
Note: Strikes are presumed to be economic than
ULP
b. ULP strike – called against ULP of ER; purpose
to make him desist fr further committing such
practice
A valid strike needs a labor dispute
- strike can validly take place only in the
presence of & in relation to a labor dispute bet
ER & EEs involved
Strike defined Art 219(o)
- any temporary stoppage of work by concerted
action of ERs as a result of an industrial or labor
dispute
Strike is recognized & protected only if the work
stoppage is brought about by disagreements
regarding terms & conditions of EET or ways to
arrange or adjust it
Note: Where there is 1. no dispute or 2. Dispute
has nothing to do with terms & conditions of
EET; stoppage of work by its EEs has no basis;
illegal strike
Natl Union of workers in hotels v. NLRC(1998)
- alleged acts of hotel were not ULP hence not
strikeable; upheld dismissal of 15 officers who
knowingly participated in the strike
ER may lawfully discharge EEs for participating in
an unjustifiable wildcat strike
Sympathetic strike
Valid strike presupposes labor dispute; it follows
that sympathetic strike is illegal
Sympathetic striking – EEs have no demands or
grievances of their own but strike for the
purpose of directly or indirectly aiding others
without relation to advancement of interest of
strikers
- (Defined) stoppage of work to make common
cause with other strikers in other est/companies
without existence of any labor dispute bet
striking EEs & their own ER
Strike is illegal unless there exists a labor
dispute bet ER & striking EEs
Welga ng Bayan (Peoples Strike)
- in nature of a general strike; extended
sympathetic strike
Page 3
- EEs who have no labor dispute with ER but who
on the day they are supposed to work, refuse to
work to join a welga ng bayan are committing
illegal work stoppage
Note: In the realm of political freedom, general
strike may be defensible
But at the enterprise level, EEs absence fr work
to join a general strike is unexcused absence
In relation to ER, EEs absence is illegal &
actionable work stoppage because stoppage is
not due to existing labor/industrial dispute bet
said EEs & ER
Avoidance of strike
- by requiring EEs to exhaust available means of
settling dispute without resort to strike
Strikers & other coercive acts are deemed
justified only when peaceful alternatives have
proved unfruitful in settling dispute
Disregarding grievance procedure or refusal to
submit arbitrable issue to VA-ion may justify a
conclusion that strike was held prematurely
hence illegal
Conciliation, Mediation, Compromise to avoid
strike
An issue awaiting resolution in arbitration
proceedings, whether compulsory or voluntary
cannot serve as basis of stike
To resort to strike despite ongoing arbitration is
an act amounting to sabotage of a peaceful
conciliatory process
NCMB upon request of either or both parties or
upon its own initiative, provide conciliation-
mediation services to labor disputes other than
strikes or lockouts
Any compromise settlement including those
involving labor standard laws, voluntarily agreed
upon by parties with the issuance of the Board
(NCMB?) shall be final & binding upon the parties
NLRC or any court shall not assume jurisdiction
over issues involved therein except
1. in case of non-compliance thereof or
2. if there is prima facie evidence that the
settlement was obtained through fraud,
misrepresentation or coercion
Premature Strike
- unjustified, unreasonable hence illegal
Union of the Phil. Education EEs v. PECO (1952)
– SC laid down the rule that until all the
remedies & negotiations toward the adjustment
& settlement of labor disputes have been
exhausted, the law does not look with favour
upon resort to radical measures
Protection of Strikes
1. GR – not subj to labor injuction or restraining
order
2. EEs may not be discriminated against because
they exercised right to strike
3. Use of strike-breakers is prohibited
Aglosolos_LabRelNotes2017
4. Mere participation in a strike does not sever
EET relationship
Art 278 (c) provides that no ER shall employ an
strike-breaker nor shall any person be employed
as strike-breaker
Strike-breaker – a person who obstructs,
impedes, or interferes by force, violence,
coercion, threats or intimidation any peaceful
picketing by EEs during any labor controversy
Note: EEs who peacefully struck for a lawful
object were not liable to their ER (for damages)
Strikers could not use unlawful means; unless
strikers methods or objects were illegal, ER had
no cause of action for damage to his business fr
the strike
Striking EEs may persuade or advise others to
quit work & join strikes, so long as contractual
rights are not invaded
Right to strike includes right to use peaceable &
lawful means to induce present & expectant EEs
to join ranks of strikers
Role of the Police
Involvement of AFP/PNP limited to:
1. maintenance of peace & order
2. enforcement of laws & legal orders of duly
constituted authorities
3. performance of specific functions as may be
provided by law
Not station in the picket but on such that their
presence may deter commission of criminal acts
fr either side; 50meter radius fr picket lines
except if 50m includes a public thoroughfare
(may station there)
Any person who obstructs the free
ingress/egress fr ERs premises or who obstructs
public thoroughfare may be arrested & charged
in court
Art278 does not prohibit a worker fr working in
place of strikers
Status of strikers
Relationship bet ER & EE is not necessarily
terminated by a strike; although they cease to
work EE intend to retain their position
SC holds that the declaration of a strike does not
amount to renunciation of EET relation
A strike does not itself terminate the relation of
ER & EE
Notion of striking EE
During strike, ER-EE relationship is not
terminated but merely suspended as the work
stoppage is not permanent but only temporary
Striking EE is still as EE (see definition of EE in
Art 219f)
EEs status during a strike remains but the effects
of EET are suspended, hence a striking EE as a
rule is not entitled to his wage during the strike
Page 4
Retention by striking EE of their EE status has 2
main consequences:
1. ERs obligation to bargain collectively inGF with
his EEs continues notwithstanding the fact that
EEs are on strike
2. ER is under an obligation to reinstate striking
EEs upon termination of strike, without
discriminating against those more actively
engaged in union activity
Legality of strike: the 6 factors affecting legality:
Right to strike – workers are able to press their
demands for better terms of EET; conducted
peacefully
Any violation of legal requirements such as
defiance of return-to-work order in industries
affected with public interest will render strike
illegal
Illegal strike is one which is:
1. contrary to specific prohibition of law (Ex.
Strike by EEs performing govt’al functions)
2. violates a specific reqt of law
3. declared for an unlawful purpose (Ex. Induce
ER to commit ULP against non-union EEs)
4. EEs unlawful means in pursuit of its objective
5. declared in violation of existing injunction
6. contrary to existing agreement (Ex. No-strike
clause or conclusive arbitration clause)
* the 6 categories of strike applied by SC in
Toyota case(2007)
6 Factors in legality of strike *Explained
1st factor. Statutory Prohibition
- govt Es have right to organize but no right to
strike ( a strike held by them is an illegal strike)
SSEA v. CA(1989) – Govt EEs may
1. petition to Congress for betterment of terms &
conditions of EET which are within the ambit of
legislation
2. negotiate with appropriate govt agencies for
improvement of those not fixed by law
Any unresolved grievances refer dispute to
PSLMC
But EEs in the civil service may not resort to
strikes, walkouts & other temporary work
stoppages to pressure the govt to accede to their
demands
Terms & conditions of EET in govt including PS,I,
GOCCs with orig charters are governed by law;
EEs shall not strike for the purpose of securing
changes thereof
RTSO shall not be denied to govt EEs
Bill of rights – right to form association or
societies for purposes not contrary to law shall
not be abridged
If purpose of the state is to prohibit strikes fr EEs
exercising govt functions; it could be done
because the moment it is prohibited union which
will go on strike will be an illegal union
Alliance of Govt workers v. MoLE
- furnishes rationale for distinguishing bet
workers in private sector & govt EEs with the
right to strike
Aglosolos_LabRelNotes2017
GR – terms & conditions of EEt in the govt are
governed by law
Since terms & conditions of govt EET are fixed by
law, govt workers cannot use the same weapons
employed by workers in the private sector to
secure concessions fr their ER
The principle behind labor unionism in private
industry is that industrial peace cannot be
secured thru compulsion of law
In govt EET – it is the legislature & where
properly given delegated power, the
administrative heads of govt which fix the terms
& conditions of EET; & this is effected thru
statutes or admin circulars, R&R not thru CBA
Bangalisan v. CA (1997)
- issue of WON mass action launched by public
school teachers was a strike
 In Manila Public School Teaschers Assoc
v. Laguio held that fr pleaded & admitted
facts, those mass actions were to all
intents & purposes a strike; constituted
concerted & unauthorized stoppage of
absence fr work which it was the
teacher’s duty to perform
In the absence of statute, public EEs do not have
the right to engage in concerted work stoppages
for any purpose
Settled rule that EEs in the public service may
not engage in strike
While the consti recognizes the right of govt EEs
to organize, they are prohibited fr staging
strikes, which will result in temporary stoppage
or disruption of public service
The right of govt EEs to organize is limited only
to formation of unions or assoc without including
right to strike
GR – even in the absence of express statutory
prohibition, like CSC MC no 6, public EEs are
denied the right to strike or engage in a work
stoppage against public ER
2nd factor. Procedural Requirements
A strike/lockout to enjoy the protection of law
must observe certain procedural requisites
(Art277)
1. Filing of a notice of strike
2. Observance of cooling off period
3. Taking of strike vote
4. Observance of 7Day strike vote report
period
These requirements are mandatory;
noncompliance makes strike illegal
Intention of the law in requiring the NS & SVR is
to reasonably regulate the right to strike
Officers of the union who participated in illegal
strike are deemed to have lost their EET status
Notice of strike (NS)
NS or lockout should be filed with DOLE
specifically Regl branch of NCMB copy furnished
ER & union as the case may be
Who files a notice of strike?
-Only registered LLO can legally hold a strike
Page 5
If reason is ULP by ER, notice should be filed by
duly recognized or certified bargaining agent
If reason is bargaining deadlock, only the
bargaining union file a NS
Note: a union instead of filing a NS may request
NCMB to do a preventive mediation but the union
has to be certified or duly recognized bargaining
agent
Contents of notice
Strike notice shall state:
1. Names & addresses of ER & union
involved
2. Nature of industry ER belongs
3. No. of union members & of workers in BU
4. Other relevant data
In cases of bargaining deadlock, notice shall
further state the unresolved issues in bargaining
nego, accompanied by written proposals of union
& counter-proposals of ER
In cases of ULP, state acts complained of &
efforts taken to resolve dispute amicably
Cooling-off period
Time gap bet the filing of notice & actual
execution of strike/lockout
30days – bargaining deadlock
15days – ULP
Union busting not req to observe
NCMB upon receipt of NS & during cooling off
period, mediates & conciliates the parties
Parties are obliged to participate fully & promptly
in conciliation meetings
A strike/lockout notice upon agreement of the
parties, may be referred to alternative modes of
dispute reso, including voluntary arbitration
Strike Vote (SV)
Before a strike or lockout may actually be
started, a strike/lockout vote should be taken by
secret balloting, in meetings or referenda
specially called for the purpose
Union or ER shall furnish the reg’l branch of
NCMB notice of meetings atleast 24hrs before
such meetings as well as results of the voting
atleast 7days b4 intended strike/lockout subject
to cooling-off period
Decision to declare a strike requires secret ballot
approval of majority of total union membership
in BU concerned
It is majority of union membership not of BU
Members of minority union may or may not be
called to SV meeting
Purpose of strike vote is to ensure that decision
to strike rests with majority of union members
SVR submitted to NCMB atleast 7days prior to
intended date of strike ensures that SV was
taken
Aglosolos_LabRelNotes2017
The 15/30day cooling-off period designed to
afford parties opportunity to amicably
7day strike ban is intended to give DOLE
opportunity to verify whether projected strike
really carries the imprimatur of union members
Needed vote is 50% plus 1 of the total
membership
Lockout needs the secret ballot concurrence of
majority of directors or partners
Strike Vote Report (SVR)
Result of the strike or lockout voting should be
reported to NCMB atleast 7days b4 intended
strike or lockout subj to cooling off period
- means that after strike vote is taken and result
reported to NCMB, 7days must pass b4 union can
commence the strike
A strike held within 7day waiting period is illegal
Strike held without submission of result of strike
vote is illegal
The requirement of giving notice of conduct of
strike vote to NCMB atleast 24hrs b4 meeting is
designed to:
1. inform NCMB of intent of union to conduct a
strike vote
2. give NCMB time to deice WON there is need to
supervise
3. should NCMB decide to supervise; ample time
to prepare
Failure of a union to comply with the
requirement of giving notice to NCMB atleast
24hrs prior to holding of a strike vote meeting
will render subsequent strike staged by union
illegal
Q: When should the strike vote be taken? (within
or outside cooling off period)
A - If the Strike vote is filed within the cooling-
off period; the7day requirement shall be counted
fr the day ff expiration of cooling-off period; 7
days are added to the 15 or 30day cooling-off
period
Declaration of strike or lockout
- dispute remains unsettled after lapse of
cooling-off period & 7day reporting period; labor
union may strike or ER may lock out
Procedural requirements, mandatory: Non-
observance makes strike illegal
Case #12 – NSFW v. Ovejera (1982)
(a) mandatory periods; language of law
Cooling-off period and 7day strike ban after SVR
should be deemed mandatory
Although labor union may take a strike vote and
report the same within the statutory cooling-off
period
(b) Purposes of strike notice & SVR
Notice of Strike (NS) and a cooling-off period –
intent of law is to provide opportunity for
mediation & conciliation (to effect a voluntary
settlement during the cooling-off period)
Page 6

7day strike vote report
Submission of SVR gives assurance that strike
vote has been taken & if report is false; majority
of members can still remedy b4 it is too late
(c)Waiting period after Strike Notice and SVR,
valid regulation of right to strike
- cooling-off period & 7days strike ban after filing
of SVR are reasonable restrictions; imposition
essential to attain legitimate state policy
objectives embodied in law; valid exercise of
State’s police power
Case #36 – Gold City Integrated Port Services
Inc. v. NLRC (1995)
- pets EEs stopped working & gathered in a mass
action; on the same morning strikers filed
individual notices of strike; Strike illegal for not
having complied with formal requirements Art
278 par c & f
Case #18 – Union of Filipro EEs v. Nestle (1990)
- illegality of strikes & dismissal of complainants
upheld
1. strike staged illegal in violation of CBA no
strike/no lockout clause & conclusive arbitration
clause
2. UFE went on strike instead of exhausting all
steps provided in grievance machinery in the
CBA
3. mandatory cooling-off period & 7day strike
ban after submission of SVR not complied; no NS
filed
4. Strike was carried out with coercion, force,
intimidation, violence with pgysical injuries,
sabotage, use of unnecessary force & obscene
language
5. Strike on the day filed NS
Strike on Installment: Work Slowdown and
Overtime Boycott
Interphil case(2001) – strike was in form of OT
boycott & work slowdown which can be classified
as strike on an installment basis
Ilaw at Buklod ng Mangagawa v. NLRC
- Court in substantial agreement with pets
concept of slowdown as a strike on the
installment plan as willful reduction in the rate of
work by concerted action of workers for purpose
of restricting output of ER, in relation to a labor
dispute, as an activity which worker without a
complete stoppage of work retard production or
their performance of duties & functions to
compel mgt to grant their demands
Slowdown is illicit & unjustifiable
In case of union busting
Where ER trying to bust union; union is the
victim; N/A cooling off period reqt in case of
union busting
Union Busting (Elements)
1. Union officers are being dismissed
Aglosolos_LabRelNotes2017
2. Officers are duly elected in acc with union CBL
3. Existence of union is threatened
If union is being busted, no need to observe
cooling off period but union must still file Notice
of strike, take strike vote & submit SVR
(mandatory even in union busting)
NCMB Primer on Strike, Picketing, Lockout
(1992)
Time reqt for filing of NS shall be dispensed with
but strike vote reqt being mandatory in character
shall in every case be complied with
Alleged union busting – 3 remaining reqts
1. NS; 2. Strike vote; 3. 7day report period,
cannot be dispensed with
Totality of conduct doctrine – an act to be
characterized as ULP should be viewed not in
isolation but in connection with collateral
circumstances
B4 organization take into a strike because of
alleged union busting by ER, union officers
should notify NCMB & consul general
membership
Strike During Arbitration, Illegal
Filsyn EEs Chapter v. Drilon (1989)
- MoLE certified labor dispute to NLRC for
compulsory arbitration; while conciliation
meetings were still pending union officers &
members did not report for work
Held – certification of dispute to NLRC for
compulsory arbitration had the effect of enjoining
intended strike subj of notices
Concerted action in not reporting for work when
they were supposed to render work on those
days acc to work sched & during pendency of
compulsory arbitration proceedings on certified
labor dispute constituted an illegal strike
Another case – Court held that no strike/lockout
can be declared while a case is pending involving
same grounds for strike/lockout
Sukholai Cuisine v. CA(2006) – strike was
declared illegal due to union’s failure to exhaust
all in the steps of arbitration proceedings; fully
aware of such cannot claim good faith as a
defense
However, if after decision declaring strike illegal
new demands/matters arise not in
connection/similar to former decision & laborers
strike anew; new strike not a violation of
decision (provided procedural reqts complied)
Strike despite preventive mediation
Mediation – process of resolving disputes with
aid of a neutral person the mediator; who helps
identify issues & develop proposals to resolve
their disputes
- NCMB manual enunciates it as a remedy to
prevent or resolve disputes whether strikeable or
not
Page 7
Note: Preventive mediation can be initiated
simply by a letter-request
Info discovered in mediation is inadmissible in
court; party cannot use info gathered in
mediation against other party & mediator cannot
be subpoenaed to reveal what transpired in
mediation
Case #11 – PAL v. SoLE (1991)
Mediator advised PALEA that issues raised in NS
are not valid grounds for a lawful strike; PALEA
declared a strike; SoLE assumed jurisdiction
Held – SC held nullified SoLEs order insofar as it
declared valid PALEA strike & restrained PAL fr
taking appropriate legal actions against PALEA
officers & members who led the strike
PAL strike was illegal for 3 reasons:
1. premature; CBA still had 9 months to run
2. violated no strike provision of CBA
3. NCMB had declared the NS as appropriate for
preventive mediation
* effect of declaration was to drop the case fr
docket of NS; as if no NS
During the pendency of mediation proceedings,
no strike could be legally declared
Since the strike was illegal, PAL has a right to
take disciplinary action against union officers
who took part & union members who committed
illegal acts
Under Art 277 (263) SoLE may enjoin holding of
strike but not company’s right to take
appropriate legal actions
Violation of a valid Order
- equivalent to violation or disobedience of an
order of court, strike illegal
Grievance procedure bypassed
Stipulation of no strike no lockout; until
grievance is resolved by proper court if not
settled thru a grievance procedure
- legality of such stipulation upheld in Liberal LU
v. Phil Can; CBA stipulated that if laborer had a
complaint should 1st be resolved by a grievance
committee; if decision not satisfactory refer to
top officials of union & ER; submit to CIR if not
settled
Another case – strike was illegal because union
did not adhere to procedure (in settlement to
prevent strike) agreed upon for settlement of
disputes; must be followed in its entirety
Agreement to exhaust all available means
resorting resorting to force; strikes held in
violation of terms in CBA are illegal esp when
they provide for conclusive arbitration clauses;
these agreements must be strictly adhered to
San Miguel Corp v. NLRC (2003)
- ER & union executed a CBA which they agreed
to submit all disputes to grievance & arbitration
proceedings; also included a no-strike no-lockout
agreement
Aglosolos_LabRelNotes2017
NCMB director held that issues were non-
strikeable; NLRC issued a TRO directing free
ingress/egress fr plant
Ruling -
Art265 (254) LC provides that no injunction or
RO shall be issued by any court except as
otherwise provided in
Art 266(e) – injunction may be used to restrain
an actual or threatened strike unlawful strike
& in Art 277(263)
As held in PAL v. Drilon
- after conversion of NS by NCMB into a
preventive mediation, it is as if there was no
notice of strike;
& that during pendency of preventive mediation
proceedings, no strike could be legally declared
IBM went on strike despite lack of valid NS &
despite pendency of mediation proceedings
IBM after execution of MOA circulated fliers
showing threats of commission of prohibited
activities (ipa alala sa mgt na iniaatras ang NS at
ano man oras pwede muli itirik ang picket
lines); it was grave abuse of discretion on NLRC
when it failed to grant pet for injunction
Strikes held in violation of terms in CBA are
illegal when they provide for conclusive
arbitration clauses; these agreements must be
strictly adhered to
Dismissal of EEs during conciliation; when legal
and enforceable
GTE Directories v. Sanchez (1991) – GTE
terminated EET of 14 sales rep for failure to
comply with reportorial reqts after several
demands was made; during the time conciliation
efforts were being exerted
Ruling –
Dismissal is valid; conciliation proceedings not
validated
ER has the prerogative to lay down basic policies
and rules applicable to its EEs
Filing of NS and commencement of conciliation
activities by BLR did not operate to make GTEs
orders illegal & unenforceable so as to excuse
continued noncompliance therewith
The overt, direct, deliberate & continued defiance
& disregard by EEs of their ERs authority left ER
with no other alternative except to impose
sanctions
3rd factor. Economic and ULP strike
2 strikeable grounds
1. CB deadlock
2. ERs ULP
A strike not based in any of these 2 causes are
illegal
Ex of nonstrikeable issues
1. inter-union or intra-union disputes
2. violation of labor standards law
3. any issue involving wage distortion
Page 8
4. cases pending at DOLE, BLR, NLRC, SoLE , VA,
CA or SC
5. execution & enforcement of final orders in
no.4
6. any issue covered by no strike commitment
Strike on refusal to bargain or discriminatory
discharge or any other sort of ULP by ER is called
ULP strike
Strike to force wage or other concessions fr ER
which he is not required by law to grant is
economic strike
Distinguish the 2 – point on applicability of
certain reqts or strikers right
The conversion doctrine
- strike may start fr economic to ULP
Laid Law corp (US case) – Rule that strikers who
are permanently replaced during economic phase
of the strike are not entitled to immediate
reinstatement while strikers replaced after date
of conversion are
Lawful purpose: Strike incident to CB
Laborers have right thru concerted action by
means of strike, to attempt to secure attainment
of any lawful objects for the purpose of securing
improvement in terms & conditions of labor
Strikes for the ff purposes are illegal:
1. Procure commission of unlawful or criminal act
2. compel ER to join a boycott
3. overthrow the govt
Bargaining deadlock
SMC v. NLRC (1999)
CB deadlock (defined) – situation bet labor &
mgt
where there is failure in CB negotiations resulting
in a stalemate
By failing to exhaust all steps in grievance
machinery & arbitration proceedings in CBA; NS
should have been dismissed by NLRC & ordered
to proceed with GM & AP
In abandoning grievance proceedings & refusing
to avail of remedies under CBA, resp violated
mandatory provisions of CBA; no ground to
sustain NS
Legality of strike not dependent upon ability of
mgt to grant demands
The demands that gave rise to strike may not be
properly granted but that fact should not make
said demands & the consequent strike illegal
Lawful purpose: strike against ERs ULP
Union busting or interference with formation of a
union constitutes ULP act; a valid ground for
declaration of strike
Any ULP act uner Art 258 is strikeable
Davao Free workers Front v. CIR
Aglosolos_LabRelNotes2017
Pet union submitted bargaining proposals for
renewal of CBA but mgt sponsored a
organization of new LU & executed a CBA with it
- strike valid; against ER ULP
Philsteam v. PMOG (1965)
Subjection by company of its EEs to a series of
questionings regarding their membership in
union or their union activities in such a way as to
hamper exercise of free choice on their part
constitutes ULP; PMOG strike was for a lawful
purpose (interference with EEs RTSO)
Lawful purpose: ULP strike in GF
2 tests in determining existence of ULP
1. Strike is declared in protest of ULP actually
committed
2. Strike declared in protest of what union
believed to be ULP committed by mgt &
circumstances warranted such belief in GF
although found subsequently not committed
It is not even required that there be in fact ULP
committed; it suffices a belief in GF by labor as
inducing factor for staging a strike
Management performed acts which strikers
believed were ULP although they were not, the
court ruled that the strike cannot be held illegal;
however union’s belief needs some rational basis
Ferrer v. CIR (1966)
Mgt circularized EEs informing them of unions
refusal to sign CBA (did not contain security
clause as pressed in the negotiation)
- strike not illegal; surrounding circumstances
show that pet were reasonably justified in
believing that mgt act is ULP although absolved
fr ULP hence reinstatement must be without back
pay
Ferrer ruling reiterated in Norton & Harrison
- former pres of union’s swift dismissal without
required procedure; union & members
reasonably led to believing that dismissal was
predicated upon his union activities
Since strike was in response to what it warranted
in believing in GF to be ULP of mgt; ff. Ferrer
ruling did not result in termination of striking
members status as EEs; reinstatement without
backwages
The Good-Faith Strike Doctrine Retraced &
Reiterated
Case – strike may be considered legal when
union believed that resp. company committed
ULP & circumstances warranted such belief in GF,
although subsequently allegations of ULP found
untrue
Ferrer Ruling upheld in Shell case(1971) where
SC held that it is not even required that there be
in fact ULP committed by ER; it suffices if such
belief in GF is entertained by labor as inducing
factor in staging a strike; strike not illegal
strikers not lost their status as EEs
Page 9
Pepito v. SoLE (1980) – pets were entitled not
only to reinstatement but also to backwages;
strike was not illegal but was induced by honest
belief that mgt committed ULP; thus cause of
dismissal fr EET was nonexistent
Pepsi-cola LU v. NLRC (1982) – pendency of
election contest; winning union filed NS; Pepsi
countered that it was willing to bargain but there
was no yet final decision on appeal of losing
union
SC said that a strike does not automatically carry
the stigma of illegality even if no ULP were
committed by ER; belief in GF suffices as
inducing factor in staging a strike
Although strike in this case was illegal, no proof
that all union members participated in illegal
strike
In Esso Phil case, the ones who deserve
punishment are the officers of union who staged
the strike in defiance of Med-A ruling
Good-Faith Strike Doctrine applied even to a
strike without prior notice & despite a No-strike
clause
Phil Metal Foundries v. CIR (1979) – company
assailed legality of strike on ground that it was
declared without prior notice & in violation of no-
strike clause of CBA
SC declared strike legal – when union declared a
strike in the belief that dismissal of Baylon was
due to his union activities, said strike was not
illegal (belief in GF as inducing factor) & not a
violation of no-strike clause.
A no-strike clause prohibition in CBA applicable
only to economic strikes
Even Good-Faith strike requires a Rational Basis
GF strike does not tolerate a groundless strike;
does not excuse union’s non-presentation of
substantial evidence to support allegation of ULP
by ER
Tiu v. NLRC (1997) – mgt issued guidelines to
minimize OT expenses union did not submit any
comment; when put into effect if filed NS
Union gave no particulars then went on strike
Held – NS contained general allegations that mgt
committed ULP amounting to union busting
IT is the union who had the burden of proof to
present substantial evidence to support its
allegations
GR – presumption of legality of strike prevails
even if allegations of ULP are subsequently found
out to be untrue
But in this case, the facts & evidence did not
establish even a rational basis. It is not enough
that union believed that ER committed ULP when
circumstances clearly negate even a prima facie
showing to warrant such belief
Do the procedural reqts apply even to a ULP
strike in GF? – YES! Mandatory
NFL v. NLRC & Permex (1997) – union failed to
comply with statutory reqts necessary for a valid
strike (no NS, SVR or 7day strike ban after SV;
Aglosolos_LabRelNotes2017
completely disregarded procedural steps); NFL
asserts that strike can be declared legal for it
was done in GF
Held – RA 6715 (Mar 21, 1989) Reqts as the
filing of NS, SV and notice to DOLE are
mandatory in nature; thus even if union acted in
GF in the belief that company was committing
ULP; strike was illegal
Lawful Purpose: Strike to compel Recognition of
&
Bargaining with majority union
Caltex v. CIR (1972) – Assoc asked company for
recognition as EBR; company asked position
listings assoc did not submit; Assoc filed NS
Held – SC held strike was legal; the strike was
declared not just for purpose of gaining
recognition but also for bargaining in BF by
company & ULP committed by its officials; cannot
be labeled unlawful
Unlawful purpose: Strike for union recognition
without having proven majority status
The legal way to secure union reg is not thru
strike but thru CE or VR by ERif no doubt as to
unions majority status
But where majority status of a union in not in
doubt despite this ER still refuses to bargain
(Caltex case above); the situation is ULP act by
ER
3 Jurisdictional preconditions to CB:
1. possession of majority status
2. proof of majority representation
3. demand to bargain
If any or all these preconditions are not present,
it will be premature for a union to hold a strike to
compel bargaining
AIUP, Densing et al v. Cenapro (1999) – CBA
excluded casual EEs fr membership in incumbent
union; formed an org & affiliated with AIUP filed
NS
Held – union recognition strike is calculated to
compel ER to recognize one’s union as EBR to
work out a CBA despite striking union’s doubtful
majority status to merit VR & lack of formal
certification as EBR
At the time AIUP filed PCE there was an existing
CBA; the petition should not have been
entertained because of the contract-bar rule
May a minority union strike? NO!
Minority union cannot demand CB with ER;
cannot lawfully undertake strike against ER,
neither can it picket to compel bargaining
After a union has been certified as EBR, a strike
by a minority union to compel an ER to bargain
with it is unlawful
Although minority union cannot strike, it can
engage in peaceful concerted activity short of
strike & can file ULP complaint
Strike held to compel recognition while case is
unresolved
Page 10
Luzon Marine Devt Union v. Roldan (1950) –
LMDU presented a petition to ER including
recognition with right to CB; UOEF intervened
claiming it was EBR. While proceedings b4 CIR
was still unresolved LMDU declared a strike
Held – strike was illegal
Unlawful purpose: Trivial; Unjust or
Unreasonable
Under the law, during the pendency of an
industrial dispute b4 CIR, ER cannot lay off much
less dismiss petitioning EE without permission
If a strike is declared for trivial, unjust or
unreasonable purpose, or carried out thru
unlawful means, court will declare it illegal
The law’s protection withheld if the motive that
impels, prompts, moves or leads members of LU
or org to stage a strike be unlawful, ilegitimate,
unjust, unreasonable, or trivial
Illegal strike: Shaven-head strikers (kalbo) in
toursist-class hotel
Dusit Hotel v. CA (2008) – some male unions
came to work sporting closely cropped hair or
cleanly shaven heads; hotel terminated 29 union
officers, 61 members & suspended others
Held – unions violation of hotel’s grooming stds
was clearly a deliberate & concerted action; not
protected action; considered illegal strike
Rule13 Sec6 IRR – prohibits commission of any
act which will disrupt or impede early settlement
of labor disputes under conciliation
Since deadlock is being conciliated by NCMB,
union officer/members action to heads shaved
ws calculated to antagonize & embarrass hotel &
in doing so effectively disrupted operations
violated their duty to bargain collectively
Strike to compel removal of an EE; Implied
assertion of union infallibility
Right to strike is subj to restriction that primary
purpose must not be to injure an obnoxious EE &
that refusal to work with another workman may
not be for an arbitrary cause
LDMU v. Roldan(1950) – held that a strike
motivated by unreasonable demand demand of
LU for dismissal of factory foreman is illegal &
unjustified
CLU v. Std Vacuum Oil(1955) – only
objectionable feature of strike is unions
peremptory demand on mgt to transfer
V.Mauricio within 48hrs & its subsequent refusal
to extend period; this implied unacceptable
assertion of union infallibility
Unlawful purpose: Strike on nonstrikeable issue
Ex. Of nonstrikeable issues:
1. Physical rearrangement of office
Reliance Surety v. NLRC (1991) – ER effected a
change in seating arrangement in dept.; those
affected protested claiming that change was
without prior notice & done to harass them;
court held that ER merely exercised reasonable
prerogative EEs could not validly question
Aglosolos_LabRelNotes2017
2. Company’s sales evaluation policy
GTE v. Sanchez (1991) – ruling upon a similar
issue in “ San Miguel v. Ople that company’s
adoption of a new sales evaluation & production
policy was within its mgt prerogative”; Until &
unless the rules or orders are declared to be
illegal or improper by competent authority EEs
ignore or disobey them at their peril
Promulgations of company policies are basic mgt
prerogatives
It is recognized principle of law that company
policies & regulations are unless shown to be
grossly oppressive or contrary to law; generally
binding and valid on the parties & must be
complied with until finally revised or amended
unilaterally or thru nego(prefer) or by competent
authorities
3. Salary distortion under the Wage
rationalization act
Ilaw at buklod Manggagawa v. NLRC (1991) –
IBM presented a demand for correction of
significant distortion in workers wage
Held – legislative intent that solution of problem
of wage distortions shall be sought by voluntary
nego or arbitration & not by strikes, lockouts or
other concerted activities of EEs or mgt is made
clear in IRR of RA 6727
The partial strike or concerted refusal by union
members to follow their 5yr old work sched;
resorted to as a means of coercing correction of
wage distortions was forbidden by law & contract
(CBA?); illegal
IRR - Wage distortions me 1st voluntarily settled
by the parties & eventually by compulsory
arbitration; declares that any issue inv wage
distortion shall not be a ground for a
strike/lockout
4. Inter-union & intra-union dispute
BLR exercises original & exclusive authority to
act on all Inter-union & intra-union disputes
Whether dispute is bet or among unions (inter)
or internal to 1 union; it does not involve ER thus
dispute cannot justify a work stoppage
4th factor. Means & Methods
A strike has to be pursued within the bounds of
law; law puts limits to their exercise
The limits are among the prohibited activities
under Art 264 par (e)
That no person engaged in picketing shall
1. commit any act of violence, coercion or
intimidation
2. obstruct free ingress to or egress fr ERs
premises for lawful purposes
3. obstruct public thoroughfares
The use of violence or threat in pursuing labor
rights is punishable under RPC (Art289)
Threats, Coercion or violence
Even if purpose of a strike is valid, strike may
still be held invalid where means employed are
Page 11
illegal
The use of violence, intimidation, restraint or
coercion in carrying out concerted activities
which are injurious to rights of ppty or to a
particular individuals make a strike illegal
Acts of violence justify the dismissal of guilty
strikers; EEs may be discharged for illegal acts or
misconduct during a strike
Note: Mere filing of charges against an EE for
alleged illegal acts during a strike does not by
itself justify his dismissal
The charges must be proved at an investigation
where EE must be given opportunity to defend
himself; this is true even if the alleged ground
constitutes a criminal offense
Violence on both sides
Where violence was committed on both sides
during a strike, such violence cannot be a ground
for declaring strike as illegal
Responsibility for use of force: Individual or
collective?
GR – To avoid rendering illusory the recognition
of the right to strike, responsibilities in such case
should be individual & not collective
E – a diff conclusion would be called for if
existence of force while strike lasts was
pervasive & widespread consistently
deliberately resorted to as a matter of policy
PMOG v. Cia Maritima (1968) – acts of violence
committed were not mere isolated incidents;
reveals that it was staged in pursuance of a
preconceived plan
Responsibility for these illegal acts must be on an
individual & not collective basis
Although the strike was illegal because of the
commission of illegal acts, only the union officers
& strikers who engaged in violent, illegal &
criminal acts against ER are deemed to have lost
their EET status
Union members who were merely instigated to
participate in illegal strike should be treated
differently
In order to hold LO liable for unlawful acts of
individual officers, agents or members, there
must be proof of actual authorization or
ratification of such acts after actual knowledge
thereof.
Thus where a union thru its leaders not only had
knowledge of acts of violence committed by
some of the strikers but either participated or
ratified it; strike was illegal & dismissal of all
active participants was justified (collective)
Minor disorders
- not intended by the act that minor disorders
would deprive a striker of possibility of
reinstatement
Officials inability to leave premises, not illegal
detention
Aglosolos_LabRelNotes2017
- not done with criminal intent; outcome of
picketing carried to excess
Instances may occur where a criminal action
may lie; those so engaged may subj themselves
to serious criminal liability
Blockade or obstruction
Art264(e) forbids obstruction of points of ingress
or egress as well as public thoroughfares
Such obstructions are beyond valid exercise of
the right to strike because
1. they deprive the owners of the company
premises of its right to use them for lawful
purposes &
2. passers-by the use of public passage
5th factor. Injunction
1. National Interest Cases; Automatic injunction
& return-to-work order
When there is a labor dispute causing or likely to
cause a strike affecting natl interest; SoLE may
either
a. assume jurisdiction or
b. certify the dispute to NLRC for compulsory
arbitration
SoLE may act upon his own initiative or upon
petition by any of the parties
Assumption or certification by SoLE has the
& effect of automatically enjoining the intended or
impending strike or lockout as specified in the
A/Cert order
If one has already taken place at time of
assumption or certification:
a. all striking or locked out EEs shall immediately
return to work
b. ER shall immediately resume operations and
readmit all workers under same terms &
conditions prevailing b4 strike or lockout
Note: This is an example of automatic injunction;
strictly limited to “national interest cases”
Even in those cases, parties retain option to
submit the dispute to VA-ion
A prohibited activity under Art264 is the holding
of a strike or lockout after assumption of
jurisdiction by Pres or SoLE or after certification
or submission of dispute to compulsory or VA-ion
The issuance of an injunction in National interest
cases in an exception to Art 254 which in general
forbids labor injunctions
Metrolab Industries v. Roldan(1996) –
assumption or certification order under Art263(g)
has the effect of regulating mgt prerogative of
determining assignment or movement of EEs
Thus, pending resolution of the dispute; lay-off
of 94 RAF EEs was declared illegal as it was
violative of the assumption order
What are considered national interest cases?
LC vests Pres or SoLE almost unlimited discretion
to determine what industries may be considered
Page 12
indispensable to natl interest
The assumption of jurisdiction by SoLE over
labor disputes causing or likely to cause a strike
or lockout in an industry indispensable to natl
interest in the in nature of police power measure
The SoLE acts to maintain industrial peace; his
cert for compulsory arbitration is not intended to
impede workers right to strike but to obtain
speedy settlement of dispute
PSBA v. Noriel (1988) – assumption of
jurisdiction by SoLE over labor disputes involving
academic institutions was upheld
A dispute in a company supplying sulfate
requirements of MWSS (as well as sulfuric acid of
NAPOCOR) is a natl interest dispute
Category of Essential Activities
1. generation or distribution of energy
2. those undertaken by banks, hospitals, export
oriented industries
National Interest by Statutory Declaration
General Banking Law (revised in 200) explicitly
classifies banking as an industry indispensable to
natl interest
Assumption of Jurisdiction prior notice not
required
The discretion to assume jurisdiction may be
exercised by SoLE without necessity of prior
notice or hearing given to any of the party
disputants
Rationale for his primary assumption of
jurisdiction – rest on his own consideration of the
exigency of the situation in relation to natl
interest
SoLE can immediately take action where a strike
effectively paralyzed a vital industry without
waiting the filing of NS
Procedural details of assumption of jurisdiction
DO 40-G-03 – details the exercise of assumption
power of SoLE
Power to assume jurisdiction; constitutional
Union of Filipro EEs v. Nestle (1990) – UFE
questions power of SoLE to assume jurisdiction
over a labor dispute tainted with natl interests or
to certify the same for compulsory arbitration
Held – the continued validity & operation of
Art263 & 264 LC has been recognized by Phil
Congress when it enacted into law RA 6715
(Herrera Law) Sec 27 amended par (g) & (i) of
Art 263LC
Art 263(g) & 263 LC has been enacted pursuant
to [police power of State – inherent power of
govt; does not need to be expressly conferred by
the Consti]
Certification to NLRC
“Certified Labor disputes” – cases referred to
Aglosolos_LabRelNotes2017
NLRC for compulsory arbitration under Art
277(g) LC dealing with natl interest cases
A natl interest dispute may be certified to NLRC
even b4 a strike is declared
Art 263 does not require existence of a strike but
only an industrial dispute
When sitting in a compulsory arbitration certified
to by SoLE, NLRC is not sitting as a judicial court
but as an admin body charged with duty to
implement the order of SoLE; its authority did
not include power to amend SoLE’s order
Clear intent of legislative body in enacting Art277
(263) (g)- not only to serve interest of parties
but community & economy as a whole
Effects of defiance
Noncompliance with certification order of SoLE
considered an illegal act committed in the course
of strike/lockout; shall authorize NLRC to enforce
the same under pain of immediate disciplinary
action inc dismissal or loss of EET status or
payment by locking out ER of backwages,
damages &/or other affirmative relief even
criminal prosecution against liable parties
Grand Blvd Hotel v. GLOWRAIN (2003)
Requisites of a valid Strike are:
1. NS filed with DOLE 30days b4 intended date
(for bargaining deadlock) or 15days (in case of
ULP)
2. Strike vote must be approved by majority of
the total union membership in BU by secret
ballot
3. Notice must be given to DOLE of the results of
the voting atleast 7days b4 intended strike
In this case, union went on strike simultaneously
with filing of NS; illegal for failure to comply with
required periods
A strike undertaken despite issuance by SoLE of
a certification order becomes a prohibited
activity thus illegal [Art 264(a)]
GF not a valid excuse to dispense procedural
steps for lawful strike
Assumption or Certification Order immediately
effective even without a return-to-work order;
strike becomes an illegal activity
Union of Filipro v. Nestle (1990) – issue on
legality of strike committed despite a return-to-
work order
Held- Assumption and certification orders are
executory in character & are strictly to be
complied with by the parties even during
pendency of any petition questioning their
validity
Striking workers cannot ignore RTW orders citing
ULP of ER to justify their actions
Note: An assumption and/or certification order of
SoLE automatically results in a return-to-work of
all striking workers; WON a corresponding order
has been issued by SoLE
Page 13
Striking workers erred when they continued their
strike alleging absence of return-of-work
Once an assumption/cert order is issued, strikers
are enjoined OR if one has already taken place,
all strikers shall immediately return to work
A strike that is undertaken despite issuance by
SoLE of an assumption/cert order becomes a
prohibited activity thus illegal (Art 264)
Note: Notice to the parties is a prerequisite even
if the order states that it is immediately
executory
PNOC Dockyard v. NLRC (1998)
Rule – no order, decision or resolution, not even
one that is immediately executor is binding &
automatically executor unless and until proper
parties are duly notified therefor
- order not validly served on resps, since their
supposed copy was; left only with a security
guard at the gate of the premises of union
Refusal to Receive Return-to-work order
Refusal to receive assumption of jurisdiction
order(AJO) amounts to defiance of order, which
defiance makes the continuation of the strike an
illegal act; subjecting the strikers to loss of EET
status
The strikers shall immediately resume work upon
receipt or constructive receipt of order
University of San Agustin v. CA (2006)
- std operating procedure of office uf USec for
LAbRel which considers AJOs as duly served
upon posting of copies thereof on designated
places; procedure was adopted to prevent
thwarting of AJOs by simple expedient refusal of
parties to receive it (as in this case)
Well settled practice that the SoLE always gives
24hrs to striking workers within which to return
to work
But settled practice has no basis in law &
jurisprudence; immediately return to work
indicates an almost instantaneous of automatic
compliance for a striker to return to work once
AJO has been duly served
Mere issuance of an assumption order by SoLE
automatically carries with it a return-to-work
order [SEE Art278 (264) (a)]
Rationale for this prohibition is that once
jurisdiction over labor dispute has been properly
acquired by competent authority, such
jurisdiction should not be interfered with by
application of coercive process of a strike
SC held in a no. of cases that defiance to the
assumption & return-to-work orders of SoLE
after he has assumed jurisdiction is a valid
ground for loss of EET status of any striking
union officer or member
The strike of union is illegal for having been
Aglosolos_LabRelNotes2017
staged in open & knowing defiance of the
assumption & return-to-work orders
Necessary consequence thereof is detailed by SC
in Marcopper Mining Corp v. Brillantes – “ by
staging a strike after assumption of jurisdiction
or certification for arbitration, workers forfeited
their right to be admitted to work; having
abandoned their EET, could be validly replaced
Defying RTWO
Sarmiento v. Tuico (1988)
Return-to-work order in this situation is not a
matter of option or voluntariness but of
obligation; reason such return can be compelled
Not even considered violative of right against
involuntary servitude
The worker can give up his work, if he does not
want to obey the order; but the order must be
obeyed if he wants to retain his work
The RTWO should benefit only those workers
who comply with it & regardless of the outcome
of compulsory arbitration proceedings; entitled
to be paid for work actually performed
Note: Where the return to work order is issued
pending determination of the legality of strike; it
is incorrect to say that it may be enforced only if
strike is legal & may be disregarded if strike is
illegal
Purpose of RTWO is to maintain status quo while
determination is being made
Defiance of RTWO, an illegal act
Not only union officers but also union members
who defy RTWO are subj to dismissal; they are
deemed to have participated in the illegal act
St Scholastica’s College v. Samahan (1992) -
RTWO is immediately effective & executor
notwithstanding the filing of MR; it must be
strictly complied with even during the pendency
of any petition questioning its validity; until set
aside, it must be immediately complied with
Rationale is explained in UST v. NLRC citing
PALEA v. PAL
Any declaration of strike or lockout after SoLE
has assumed jurisdiction over the labor dispute
is considered an illegal act
Any worker or union officer who knowingly
participates in a strike defying a RTWO may
consequently be declared to have lost his EET
status
Note: Fr the moment a worker defies a RTWO,
he is deemed to have abandoned his job
Federation of Free Workers v. Inciong
Workers were terminated fr work after defying
RTWO for only 9days
Held – Resp gravely abused his discretion when
he ordered reinstatement of striking union
members who refused to work after he issued 2
RTWO which in itself is knowingly participating in
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an illegal act

A strike undertaken despite issuance by SoLE of

assumption/cert order becomes a prohibited
activity thus illegal pursuant to Art 263(a); union
officers & members who participated in said
illegal activity deemed to have lost their EET
status
But to justify dismissal, defiance of RTWO must
be proved
Note: An EE who takes steps to protest his lay-
off cannot be said to have abandoned his work

For abandonment to constitute valid cause for

termination of EET, there must be a deliberate,
unjustified refusal of EE to resume his EET;
refusal must be clearly established
Thus, the alleged or perceived defiance of RTWO
does not mean automatic dismissal of defying
EEs.
Due process must be observed
Given the chance to explain, EES may prove that
no defiance at all

Individual identification of strikers

Each of the(se) officers must be individually
identified & the extend or nature of his
participation proven with certainty otherwise
termination is invalid

Aglosolos_LabRelNotes2017 Page 15