Filing a Strike Notice to Conceal the Illegality of the Strike

Bigg’s, Inc. (Bigg’s) operates a restaurant chain with headquarters in Naga City, Camarines Sur.

Bigg’s Employees Union (union) was formed by its employees and was granted a Certificate of Registration by the Department of Labor and Employment on January 30, 1996.

Bigg’s Version of the Events

Bigg’s claimed that on February 16, 1996, approximately fifty (50) union members staged an illegal “sit-down strike”¹Sit-down is a form of strike where the strikers do not leave the workplace but merely establish themselves within the plant and stop production in its restaurant.

Bigg’s stated that the union failed to file a notice of strike and conduct a strike vote. Bigg’s further stated that the union belatedly filed a notice of strike with the National Conciliation and Mediation Board on the same day of February 16, 1996 to cover up the illegality of the sit-down strike.

Bigg’s also stated that it issued to the striking union members a memorandum which placed them under preventive suspension and required them to explain their actions within twenty four (24) hours from receipt of the same. Bigg’s claimed that since the union members did not comply with its order, it sent the said union members their employment termination letters on February 19, 1996.

According to Bigg’s, it filed a complaint for illegal strike against the union members before the National Conciliation and Mediation Board.

Union’s Version of the Events

On the other hand, the union members accused Bigg’s of interfering with their union activities.

They stated that in February 1996, Bigg’s asked them to withdraw their union membership under threat of losing their employment.

They further stated that in the same month, Bigg’s dismissed two (2) employees from service due to their union membership.

They also stated that on February 16, 1996, the union president and other union members, were prevented from entering Bigg’s premises.

According to the union members, they filed a Notice of Strike with the National Conciliation and Mediation Board on the same day of February 16, 1996. When they attempted to return to work on the next day, they were instructed to obtain their respective memoranda from the main office in Naga City. They discovered that the memoranda informed them of their suspension from work for participating in a sit-down strike. Some union members tried to talk with Bigg’s management, but they were told not to report for work the next day.

The union members thus filed a complaint for unfair labor practices, illegal dismissal, and damages against Bigg’s before the National Conciliation and Mediation Board.

The National Conciliation and Mediation Board consolidated the two complaints and conducted mediation proceedings.

When mediation reached an impasse, the union went on strike on March 5, 1996.

Bigg’s claimed that during the strike on March 5, 1996, the union members:

1) committed violence and disruptions;

2) prevented ingress and egress of employees and customers to and from its premises;

3) stopped Bigg’s vans from making deliveries;

4) threw stones at the vans;

5) injured the driver;

6) damaged its vehicles and guardhouse; and

7) discouraged people from going to Bigg’s Diner.

The strike ceased when both parties agreed to compulsory arbitration.

Were the strikes held on February 16, 1996 and March 5, 1996 illegal?

The Supreme Court ruled that both strikes were illegal.

Requirements of a Valid Strike

The Court discussed established principles as follows:

Strike, Concept

A strike means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute.²Article 219 (formerly Article 212) (o) of the Labor Code of the Philippines.

Procedural Requirements

Article 278³Formerly Article 263 of the Labor Code of the Philippines, lays down the procedural requirements depending on the ground of the strike.⁴In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 days before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately.
(d) The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate.
(e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout.
(f) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. This provision was further implemented by Department of Labor and Employment Order No. 40-03⁵Amending the Implementing Rules of Book V of the Labor Code of the Philippines and Department of Labor and Employment Order No. 40-A-03⁶Amending Section 5, Rule XXII of the Implementing Rules of Book V of the Labor Code of the Philippines (March 12, 2003). which amended Book V of the Implementing Rules of the Labor Code of the Philippines.

Grounds

The Labor Code of the Philippines and its implementing rules limit the grounds for a valid strike to:

1) a bargaining deadlock in the course of collective bargaining, or

2) the conduct of unfair labor practices by the employer.⁷Section 5. Grounds for strike or lockout. — A strike or lockout may be declared in cases of bargaining deadlocks and unfair labor practices. Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable. No strike or lockout may be declared on grounds involving inter-union and intra-union disputes or without first having filed a notice of strike or lockout or without the necessary strike or lockout vote having been obtained and reported to the Board. Neither will a strike be declared after assumption of jurisdiction by the Secretary or after certification of submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds or the strike or lockout.

Who Can Declare a Strike

Only a certified or duly recognized bargaining representative may declare a strike in case of a bargaining deadlock. However, in cases of unfair labor practices, the strike may be declared by any legitimate labor organization.⁸Section 6. Who May Declare a Strike or Lockout. — Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices. The employer may declare a lockout in the same cases. In the absence of a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike but only on grounds of unfair labor practices. (DO 40-03: Amending the Implementing Rules of Book V of the Labor Code of the Philippines, February 17, 2003).

Strike Vote

In both instances, the union must conduct a “strike vote” which requires that the actual strike is approved by majority of the total union membership in the bargaining unit concerned.

Strike Vote Report

The union is required to notify the regional branch of the National Conciliation and Mediation Board of the conduct of the strike vote at least twenty four (24) hours before the conduct of the voting. Thereafter, the union must furnish the National Conciliation and Mediation Board with the results of the voting at least seven (7) days before the intended strike or lockout.⁹Section 10. Strike or Lockout Vote. — A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in meetings or referenda called for the purpose. A decision to declare a lockout must be approved by a majority of the Board of Directors of the employer, corporation or association or the partners in a partnership obtained by a secret ballot in a meeting called for the purpose. The regional branch of the Board may, at its own initiative or upon request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the regional branch of the Board and the notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings as well as the results of the voting at least seven (7) days before the intended strike, subject to the cooling-off period provided in this Rule. (DO 40-03)

Jurisprudence teaches that this seven-day period has been referred to as the “seven-day strike ban”¹⁰CCBPI Postmix Workers Union v. National Labor Relations Commission, G.R. Nos. 114521 & 123491, November 27, 1998. or the “seven-day waiting period”¹¹Lapanday Workers Union v. National Labor Relations Commission, G.R. Nos. 95494-97, September 7, 1995. and such period is intended to give the National Conciliation and Mediation Board an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members.¹²Lapanday Workers Union v. National Labor Relations Commission, G.R. Nos. 95494-97, September 7, 1995.

Period for Filing Notice of Strike/Cooling-off Period in Strikes Due to Bargaining Deadlock

In a strike due to bargaining deadlocks, the union must file a notice of strike with the regional branch of the National Conciliation and Mediation Board at least 30 days before the intended date of the strike and serve a copy of the notice on the employer. This is the so-called “cooling-off period” when the parties may enter into compromise agreements to prevent the strike.

Period for Filing Notice of Strike/Cooling-off Period in Strikes Due to Unfair Labor Practice

In case of unfair labor practice, the period of notice is shortened to 15 days in that the union must file a notice of strike with the regional branch of the National Conciliation and Mediation Board at least 15 days before the intended date of the strike.

In Cases of Union Busting

In case of union busting, the “cooling-off period” does not apply ¹³but notice to strike still applies and the union may immediately conduct the strike after the strike vote and after submitting the results thereof to the regional arbitration branch of the National Conciliation and Mediation Board at least seven (7) days before the intended strike.¹⁴Section 7. Notice of Strike or Lockout. — In bargaining deadlocks, a notice of strike or lockout shall be filed with the regional branch of the Board at least thirty (30) days before the intended date thereof, a copy of said notice having been served on the other party concerned. In cases of unfair labor practice, the period of notice shall be fifteen (15) days. However, in case of unfair labor practice involving the dismissal from employment of any union officer duly elected in accordance with the union constitution and by-laws which may constitute union-busting where the existence of the union is threatened, the fifteen-day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the appropriate regional branch of the Board. xxx xxx xxx Section 10. Strike or Lockout Vote. — A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in meetings or referenda called for the purpose. A decision to declare a lockout must be approved by a majority of the Board of Directors of the employer, corporation or association or the partners in a partnership obtained by a secret ballot in a meeting called for the purpose. The regional branch of the Board may, at its own initiative or upon request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the regional branch of the Board and the notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings as well as the results of the voting at least seven (7) days before the intended strike or lockout, subject to the cooling-off period provided in this Rule. (DO 40-03).

Strike Grounded on Unfair Labor Practice

According to the Court, in a strike grounded on unfair labor practice, the following are the requirements:

1) a strike declared by the duly certified bargaining agent or legitimate labor organization;

2) the conduct of the strike vote in accordance with the notice and reportorial requirements to the National Conciliation and Mediation Board and subject to the seven-day waiting period; and

3) the notice of strike filed with the National Conciliation and Mediation Board and copy furnished to the employer, subject to the 15-day cooling-off period. The Court restated that in cases of union busting, the 15-day cooling-off period shall not apply.

The Union Conducted an Illegal Sit-down Strike on February 16, 1996

A Sit-down Strike Occurred on February 16, 1996

With regard to the first strike conducted by the union members on February 16, 1996, the Court found substantial evidence proving that the union staged a “sit-down strike.” Specifically, The Court considered the affidavits executed by certain Bigg’s employees deposing that the union members conducted a sit-down strike on February 16, 1996. These employees consistently narrated that in the morning of February 16, 1996, union members refused to do their jobs despite having directed to do so.

Union Did Not File a Notice of Strike And Failed to Observe Cooling-off Period

The Court further found that the union failed to file the requisite Notice of Strike and likewise failed to observe the cooling-off period. According to the Court, in an effort to legitimize the strike on February 16, 1996, the union filed a Notice of Strike on the same day. The Court said that this cannot be considered as compliance with the requirement, as the cooling-off period is mandatory. The cooling-off period is not merely a period during which the union and the employer must simply wait. The purpose of the cooling-off period is to allow the parties to negotiate and seek a peaceful settlement of their dispute to prevent the actual conduct of the strike. In other words, the Court said, there must be genuine efforts to amicably resolve the dispute.

Ground of Unfair Labor Practice Was Not Proven

Moreover, the Court found no proof that Bigg’s was guilty of unfair labor practice as defined under Article 259¹⁵Art. 259. (Formerly 248) Unfair Labor Practices of Employers. — It shall be unlawful for an employer to commit any of the following unfair labor practices: (a) To interfere with, restrain or coerce employees in the exercise of their right to self-organization; (b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; (c) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to self-organization; (d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters; (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, That the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent; (f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; (g) To violate the duty to bargain collectively as prescribed by this Code; (h) To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or (i) To violate a collective bargaining agreement. The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. of the Labor Code of the Philippines to allow the union, a non-certified bargaining agent to initiate the strike.

Union Busting Was Also Not Proven

Likewise, the Court found that the union failed to prove the presence of union busting¹⁶To constitute union busting under Article 263 of the Labor Code,there must be: 1) a dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws; and 2) the existence of the union must be threatened by such dismissal. (Pilipino Telephone Corp. v. Pilipino Telephone Employees Association, G.R. Nos. 160058 &160094, June 22, 2007). to exempt it from compliance with the cooling-off period. The union did not present any substantial evidence to prove its allegations that union members were actually dismissed or threatened with dismissal for their union membership.

For the Court, the union’s failure to comply with mandatory requirements rendered the strike on February 16, 1996 illegal.

The Strike on March 5, 1996 Was Illegal Despite Compliance with Procedural Requirements

With regard to the strike conducted on March 5, 1996, the Court found that the union complied with the procedural requirements of a valid strike. However, it was established that the striking union members committed acts of violence, aggression, vandalism, and blockage of the free passage to and from Bigg’s premises.

Specifically, the Court considered an audio-video footage showing the union members’ acts of violence, aggression, and prevention of ingress to and egress from the premises of Bigg’s. Furthermore, it considered the undisputed facts that the union members:

1) formed a human barricade and prevented delivery vehicles from passing through Bigg’s gates;

2) placed three big stones along the gate entrance to keep the vehicles from exiting the premises; and

3) flung stones at another van while it was on its way out of the area.

Said the Court, while the law protects the right of workers to engage in concerted activities for the purpose of collective bargaining or to seek redress for unfair labor practices, this right must be exercised in accordance with the law, specifically Article 279¹⁷Formerly 264 (e) of the Labor Code of the Philippines which prohibits any person engaged in picketing from committing any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares.

For the Court, the strike conducted on March 5, 1996 was illegal.

Were the union officers and members validly dismissed?

The Court reiterated principles relating to Article 279¹⁸Formerly Article 264 (a), which states: x x x Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. of the Labor Code of the Philippines in that for union members, what is required is that they knowingly participated in the commission of illegal acts during the strike for there to be sufficient ground for termination of employment. For union officers, however, it suffices that they knowingly participated in an illegal strike.

Dismissal of the Union President Valid

In the present case, the Court, found that the union president not only knowingly participated, but also was the one who principally organized the two (2) illegal strikes on February 16, 1996 and March 5, 1996. For the Court, the dismissal of the union president and the other union officers after the illegal strike on February 16, 1996 as well as the March 5, 1996 strike was valid.

Union Members Who Did Not Participate in Any Prohibited Act During the Strikes, Dismissal Invalid

However, the Court clarified that as to the union members who did not participate in any prohibited act during the strikes, their dismissal was invalid.

Awards

Such employees were awarded separation pay as prayed for by Bigg’s. The Court said that considering that twenty three (23) years have passed since the dismissal of the union members on February 19, 1996, and bearing in mind Bigg’s manifestation that it could no longer trust the striking employees especially as it is in the food service industry, separation pay may be more appropriate in lieu of reinstatement.¹⁹Consistent with Philippine Diamond Hotel & Resort, Inc. v. Manila Diamond Hotel Employees Union, G.R. No. 158075, June 30, 2006 where the Court made the following discussion: Reinstatement without backwages of striking members of respondent who did not commit illegal acts would thus suffice under the circumstances of the case. If reinstatement is no longer possible, given the lapse of considerable time from the occurrence of the strike, the award of separation pay of one (1) month salary for each year of service, in lieu of reinstatement, is in order.

The relief of backwages was, however, not awarded said employees, consistent with jurisprudence which dictates that backwages are not granted to dismissed employees who participated in an illegal strike even if they are later reinstated.²⁰In Escario v. National Labor Relations Commission (G.R. No. 160302, September 27, 2010), the Supreme Court held: 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.

Further reading:

• Bigg’s, Inc. v. Boncacas, G.R. Nos. 200487 & 200636, March 6, 2019.