Paulino Ungos III

Lawyer | Law Professor | Author

Tag: strikes

  • Human Barricades and Obstructions for Collective Self-Defense

    On 16 February 2000, the Manila Electric Company (MERALCO) Employees and Workers Association (MEWA), the official bargaining unit of MERALCO, through its former President, Juanito, filed a Notice of Strike with the National Conciliation Mediation Board (NCMB) due to bargaining deadlock.

    After conducting a strike vote in June 2000, Juanito informed the NCMB Administrator of its result in a Letter dated 12 July 2000. The letter was served through registered mail on 17 July 2000.

    After 4 days, or on 21 July 2000, MEWA staged a strike. Record showed that the following persons joined the strike:

    UNION OFFICERSUNION MEMBERS
    FedericoMarcelo
    CatalinoGerardo
    RomeoRolando
    DonatiloEdgardo
    AllanLeonides
    ArturoAmadeo
    RestitutoMelandro
    Dominador
    Lito
    Arnaldo
    Edwin

    The Secretary of the Department of Labor and Employment issued an Assumption Order dated 21 July 2000, assuming jurisdiction and directing the striking workers to return to work within 24 hours from notice. Copies of the order were published in 3 major newspapers on 23 July 2000 and served to union officers and its lawyers. MERALCO’s security guards also exhibited the order to the strikers but they refused to obey.

    On 24 July 2000, several strikers wearing masks chained and padlocked the 3 gates of the MERALCO Center. They laid on the pavement and blocked the entry and exit gates of MERALCO. The strikers stated that they formed human barricades and placed obstructions, but only for collective self-defense because the guards used unnecessary force in dispersing them. Consequently, on 25 July 2000, the Secretary of the Department of Labor and Employment issued another Order reminding the parties to comply with the return-to-work order. He even deputized the PNP Chiefs of the National Capital Region, Region III and Region IV to ensure compliance.

    On 2 August 2000, MEWA and MERALCO executed an Agreement directing all employees who have not been placed on duty (except the 13 union officers and 13 members who were facing charges) to report for work. MERALCO also issued a Memorandum stating that the resumption of office was without prejudice to an administrative investigation for prohibited acts committed during the strike and/or defiance of the Assumption Orders. From 2 August to 11 October 2000, 66 employees were terminated from employment.

    Was the strike illegal?

    Yes.

    The Supreme Court stated that a strike is the most powerful weapon of workers in coming to an agreement with management as to the terms and conditions of employment. Premised on the concept of economic war between labor and management, staging a strike either gives life to or destroys the labor union and its members, as well as affect management and its members.1Phimco Industries, Inc. v. Phimco Industries Labor Association, G.R. No. 170830, August 11, 2010, 642 PHIL 275-307

    The Court added that in order to be legitimate, a strike should not be antithetical to public welfare, and must be pursued within legal bounds. The right to strike as a means of attaining social justice is never meant to oppress or destroy anyone, least of all, the employer.2Phimco Industries, Inc. v. Phimco Industries Labor Association, G.R. No. 170830, August 11, 2010, 642 PHIL 275-307 Since strikes affect not only the relationship between labor and management, but also the general peace and progress of the community, the law has provided limitations on the right to strike.3Phimco Industries, Inc. v. Phimco Industries Labor Association, G.R. No. 170830, August 11, 2010, 642 PHIL 275-307 According to the Court, Article 2634Art. 263. Strikes, picketing and lockouts of the Labor Code, as amended by Republic Act (R.A.) No. 6715, and Rule XXII, Book V of the Omnibus Rules Implementing the Labor Code outline the following procedural requirements for a valid strike:

    • A notice of strike, with the required contents, should be filed with the DOLE, specifically the Regional Branch of the NCMB, copy furnished the employer of the union;
    • A cooling-off period must be observed between the filing of notice and the actual execution of the strike thirty (30) days in case of bargaining deadlock and fifteen (15) days in case of unfair labor practice. However, in the case of union busting where the unions existence is threatened, the cooling-off period need not be observed. x x x
    • Before a strike is actually commenced, a strike vote should be taken by secret balloting, with a 24-hour prior notice to NCMB. The decision to declare a strike requires the secret-ballot approval of majority of the total union membership in the bargaining unit concerned.
    • The result of the strike vote should be reported to the NCMB at least seven (7) days before the intended strike or lockout, subject to the cooling-off period. (emphasis supplied)

    Jurisprudence5Pilipino Telephone Corp. v. Pilipino Telephone Employees Association, G.R. Nos. 160058 &160094, June 22, 2007, 552 PHIL 432-452 teaches that these requirements are mandatory in nature and failure to comply therewith renders the strike illegal.

    In the present case, the Court found that MEWA failed to comply with the 7-day strike ban rule which was counted from the time the union furnished the NCMB the strike vote result. It also found that MEWA also failed to furnish the NCMB the results of the vote at least 7 days before the intended strike. The Court noted that although the letter containing the strike vote result was dated 12 July 2000, it was sent through registered mail only on 17 July 2000, which was 4 days before the strike. The Court stressed that the NCMB thus did not have sufficient time to determine if the intended strike was approved by majority of the union workers. For the Court, the strike was illegal.

    Was the dismissal of strikers from employment valid?

    The Court relied on Article 264 of the Labor Code which enumerates the prohibited acts during a strike, to wit:

    ARTICLE 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.
    No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister 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.
    Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. 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.
    x x x
    (e) No person engaged in picketing shall commit 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. (emphasis supplied)

    The Court explained that the above-cited provision of the Labor Code presents a substantial distinction between the consequences of an illegal strike for union officers and mere members of the union. For union officers, knowingly participating in an illegal strike is a valid ground for termination of their employment. However, for union members who participated in an illegal strike, their employment may be terminated only if there is substantial evidence or proof that they committed prohibited and illegal acts during the strike.6Magdala Multipurpose & Livelihood Cooperative v. Kilusang Manggagawa ng LGS, G.R. Nos. 191138-39, October 19, 2011, 675 PHIL 861-877

    In the present case, the Court declared the dismissal of the following union officers valid considering the illegality of the 21 July 2000 strike for noncompliance with the law:

    • Federico;
    • Catalino;
    • Romeo;
    • Donatilo;
    • Allan;
    • Arturo; and
    • Restituto.

    Furthermore, the Court found substantial evidence proving that the following union members performed some of the prohibited acts mentioned in Article 264 of the Labor Code:

    • Marcelo;
    • Gerardo;
    • Rolando;
    • Edgardo;
    • Leonides;
    • Amadeo;
    • Melandro;
    • Dominador; and
    • Lito.

    The Court stated that photographs submitted by MERALCO revealed that these union members committed the prohibited acts, which were then corroborated by security guards who were present during the strike. The Court stressed that the security guards identified the said members to have barricaded the gates and prevented other employees from entering MERALCO’s premises. The Court accordingly declared their dismissal valid for their illegal acts during the illegal strike.

    However, the Court reached a different conclusion with regard to 2 union members (Arnaldo and Edwin), since it found that the testimonies of the security guards revealed that they only saw these members joining the picket line without performing any illegal act during the strike.

    The Court reiterated the proof required to terminate union members, to wit:

    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 basis7Solidbank Corporation v. Gamier, G.R. Nos. 159460 & 159461, November 15, 2010, 649 PHIL 54-83.

    For the Court, absent any clear, substantial and convincing proof of illegal acts committed by Arnaldo and Edwin during the strike, MERALCO could not arbitrarily dismiss them from employment.

    Should Arnaldo and Edwin be granted backwages?

    No, the Court ruled that they should not be granted backwages in view of the illegality of the said strike.

    The Court reiterated the principles in G & S Transport Corporation v. Infante,8G & S Transport Corporation v. Infante, G.R. No. 160303, September 13, 2007, 559 PHIL 701-716 where the Court held:

    It can now therefore be concluded that the acts of respondents do not merit their dismissal from employment because it has not been substantially proven that they committed any illegal act while participating in the illegal strike. x x x
    x x x
    With respect to backwages, the principle of a “fair day’s wage for a fair day’s labor” remains as the basic factor in determining the award thereof. If there is no work performed by the employee there can be no wage or pay unless, of course, the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed or otherwise illegally prevented from working. While it was found that respondents expressed their intention to report back to work, the latter exception cannot apply in this case. In Philippine Marine Officers’ Guild v. Compañia Maritima, as affirmed in Philippine Diamond Hotel and Resort v. Manila Diamond Hotel Employees Union, the Court stressed that for this exception to apply, it is required that the strike be legal, a situation that does not obtain in the case at bar9G & S Transport Corporation v. Infante, G.R. No. 160303, September 13, 2007, 559 PHIL 701-716.

    Accordingly, the Court ruled although Arnaldo and Edwin N. Reyes could be reinstated, they are not entitled to backwages.

    Further reading:

    • Ilagan v. Manila Electric Co., G.R. Nos. 211746 & 212077, January 22, 2020.

  • 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.

  • Defiance of Assumption/Certification Orders

    Once the Secretary of Labor assumes jurisdiction over a labor dispute, a strike, whether actual or intended, is automatically enjoined. If a strike has been declared, the strikers must return to work even if they filed a motion for reconsideration of the assumption order.1ARTICLE 278. (Formerly 263) Strikes, Picketing, and Lockouts. — x x x (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. x x x

    The moment a striker defies a return-to-work order, he is deemed to have abandoned his job. It is already in itself knowingly participating in an illegal act. Considering that an illegal act was committed, all strikers, whether union officers or plain members, may be declared to have lost their employment status.2ARTICLE 279. (Formerly 264) Prohibited Activities. — (a) 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 x x x

    In this case, the Airline Pilots Association of the Philippines (ALPAP) filed a Notice of Strike on June 5, 1998 and staged a strike against the Philippine Airlines (PAL) on the same day at around 5:30 in the afternoon. The Secretary of the Department of Labor and Employment (DOLE) issued a Return-to-Work Order on 7 June 1998 after failing to to amicably settle the dispute between them. The said order stated:

    “WHEREFORE, FOREGOING PREMISES CONSIDERED, all striking officers and members of ALPAP are hereby ordered to return to work within twenty-four (24) hours from receipt of this Order and for PAL management to accept them under the same terms and conditions of employment prior to the strike.


    “Our directive to both parties to cease and desist from committing any and all acts that will exacerbate the situation is hereby reiterated.”

    ALPAP was served a copy of the Return-to-Work Order on 8 June 1998. Thus, the ALPAP strikers had 24 hours, or until 9 June 1998, to comply with said Order. However, the strikers only reported back to work on 26 June 1998. As a result of their defiance of the DOLE Secretary’s Return-to-Work Order, the strikers lost their employment status as of 9 June 1998.

    One pilot, Ruderico C. Baquiran, filed a complaint claiming that he was illegally dismissed from employment. The Supreme Court, however, disagreed for it found no evidence that he complied, or at least, attempted to comply with the Return-to-Work Order. Neither was there a showing that he reported back for work with the other ALPAP members on 26 June 1998. According to the Court, Baquiran cannot be in a better position than the other ALPAP members who belatedly reported for work on 26 June 1998 and were still deemed to have lost their employment. Baquiran simply abandoned his job.

    By contrast, the Court reached a different conclusion with regard to another pilot, Gladys L. Jadie, also a complainant in the illegal dismissal case. The Court found that Jadie was on maternity leave during the strike. She did not join the strike and could not be reasonably expected to report back for work by 9 June 1998 in compliance with the Return-to-Work Order. PAL’s act of terminating her employment was accordingly declared illegal.

    Further reading:

    • Rodriguez v. Philippine Airlines, Inc., G.R. Nos. 178501 & 178510, January 11, 2016.

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  • Strikes and Good Faith

    To be lawful, a strike must have a lawful purpose and should be executed through lawful means.

    The union in this case asserted that it conducted a strike in good faith. It claimed to have had a sincere belief that its employer had committed an unfair labor practice. Also, it hoped that the said employer would be willing to negotiate the economic aspects of their collective bargaining agreement that was to expire soon. The union further insisted that all it did was to conduct an orderly, peaceful, and moving picket.

    The Supreme Court disagreed.

    The union’s disregard of the procedural requirements for conducting a valid strike had negated its claim of good faith. If such a claim were to be upheld, it was not enough for the union to believe that the employer was guilty of unfair labor practice. It must also sufficiently show that the strike complied with the law.

    Under the procedural requirements1Article 263 of the Labor Code specifies the limitations on the exercise of the right to strike, viz.:

    Article 263. Strikes, picketing, and lockouts. . . .

    xxx xxx xxx

    (c) In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employers may file a notice of lockout with the [Department] at least 30 days before the intended date thereof. In cases of unfair labor practices, 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 [Secretary] of Labor and Employment may promulgate.

    (e) During the cooling-off period, it shall be the duty of the [Department] 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 [Department] 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 [Department] the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided.

    xxx xxx xxx     for a valid strike, the following should be present:

    • a notice of strike filed with the Department of Labor and Employment at least 30 days before the intended date thereof, or 15 days in case of unfair labor practices;
    • a strike vote approved by the majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; and
    • a notice of the results of the voting at least seven days before the intended strike given to the Department of Labor and Employment.

    These requirements are mandatory, such that non-compliance therewith by the union will render the strike illegal.

    In the present case, the Court found that the employees failed to:

    • file the notice of strike with the Department of Labor and Employment;
    • observe the cooling-off period; and
    • submit the result of the strike vote.

    In addition, although the union conducted a strike vote, the same was done by open, not secret, balloting.

    Significantly, the strike was far from orderly and peaceful. When the strike started, the union had on several instances obstructed the ingress into and egress from the employer’s offices. Record revealed evidence that depicted the acts of obstruction, violence and intimidation committed by the union during the picketing. Record even bared proof that the union forced the employer’s officers to resort to unusual means of gaining access into its premises at one point.

    The Court concluded that although the claim of good faith may have attached in so far as the union’s grounds for the strike, the same cannot be said as regards its conduct of the strike. The union should therefore bear the consequence of its non-compliance with the legal requirements.

    Further reading:

    • Hongkong & Shanghai Banking Corp. Employees Union v. National Labor Relations Commission, G.R. No. 156635, January 11, 2016.