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5 Blockade or Obstruction Such obstructions are beyond valid exercise of the right to strike because they deprive the owner of the company premises of its right to use them for lawful purposes and the passers-by the use of public passage. The illegal obstructions on public thoroughfares, such as streets or sidewalks, are nuisances which local government authorities can summarily remove. 14. FIFTH FACTOR IN LEGALITY OF STRIKE: INJUNCTION 14.1 "National Interest" Cases; Automatic Injunction and Return-to-Work Order The Secretary of Labor and Employment may either assume jurisdiction or certify the dispute to the National Labor Relations Commission for compulsory arbitration. The secretary may so act at his own initiative or upon petition by any of the parties.

Automatic enjoining the intended or impending strike or lockout as specified in the assumption or certification order. But this is strictly limited to "national interest" cases, and even in these cases the parties retain the option to submit the dispute to voluntary arbitration A prohibited activity under Article 264 is the holding of a strike or lockout after assumption of jurisdiction by the President or the Secretary of Labor or after certification or submission of the dispute to compulsory or voluntary arbitration. The assumption or certification order under Article 263 (g) has the effect of regulating the management prerogative of determining the assignment or movement of employees. Thus, pending the resolution of the dispute the layoff of 94 rank-and-file employees was declared illegal as it was violative of the assumption order. 14.2 What are Considered "National Interest" Cases The Code vests the President of the Philippines and the Secretary of Labor and Employment almost unlimited discretion to determine what industries may be considered as indispensable to the national interest. The assumption of jurisdiction by the Secretary of Labor over labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest is in the natre of a police power measure. The secretary of labor acts to maintain industrial peace. Thus, his certification for compulsory Arbitration is not intended to impede the workers' right to strike but to obtain a speedy settlement of the dispute. The assumption of jurisdiction by the Secretary of Labor and Employment over labor disputes involving academic institutions was upheld in Philippine School of Business Administration vs. Noriel (G.R. No. 80648, August 15, 1988)

14.2a "National Interest" by Statutory Declaration Any strike or lockout involving banks, if unsettled after seven (7) calendar days, shall be reported by the Bangko Sentral to the Secretary of Labor who may assume jurisdiction over the dispute or decide it or certify the same to the National Labor Relations Commission for compulsory arbitration. However, the President of the Philippines may at any time intervene and assume jurisdiction over such labor dispute in order to settle or terminate the same. 14.3 Assumption of Jurisdiction: Prior Notice Not Required The discretion to assume jurisdiction may be exercised by the Secretary of Labor and Employment without the necessity of prior notice or hearing given to any of the parties disputants. The rationale for this primary assumption of jurisdiction can justifiably rest on his own consideration of the exigency of the situation in relation to the national interests. 14.4 Power to Assume Jurisdiction, Constitutional Sec. 9 x x x. The State may provide for compulsory arbitration. UFE argues that since the aforecited provision of Sec. 9 is no longer found in the 1987 Constitution, Articles 263 (g) and 264 of the Labor Code are now "unconstitutional and must be ignored." The police power, together with the power of eminent domain and the power of taxation, is an inherent power of government and does not need to be expressly conferred by the Constitution 14.5 Certification to NLRC "Certified labor disputes" are cases certified [or referred] to the Commission for compulsory arbitration under Article 263 (g) of the Labor Code dealing about "national interest" cases. A "national interest" dispute may be certified to the NLRC [i.e., submitted to the proper division] even before a strike is declared since Section 10 of the Act [now Article 263 of the Code] does not require the existence of a strike, but only of an industrial dispute; and it is not denied that the employer and the Unions had such a dispute, and that officials of the Department of Labor previously tried to conciliate the disputants but without success. When sitting in a compulsory arbitration certified to by the Secretary of Labor, the NLRC is not sitting as a judicial court but as an administrative body charged with the duty to implement the order of the Secretary. As the implementing body, its authority did not include the power to amend the Secretary's order. Moreover, the Commission is further tasked to act within the earliest time possible and with the end in view that its action would not only serve the interests of the parties alone, but would also have favorable implications to the community and to the economy as a whole. This is the clear intention of the legislative body in enacting Article 263 paragraph (g) of the Labor Code, as amended by Section 27 of R.A. 6715.

Ground Boulevard Hotel vs. Genuine Labor Organization of Workers in Hotel, Restaurant and Allied Industries (GLOWHRAIN), G.R. No. 153664, July 18, 2003; Grand Boulevard Hotel vs. Dacanay, G.R. No. 153665, July 18, 2003 The union further claims that it went on strike because of its belief in good faith that the company was committing ULP. Still, the court held that a claim of good faith is not a valid excuse to dispense with the procedural steps for a lawful strike. Assumption or Certification Order Immediately Effective Even without Return-to-Work Order; Strike Becomes an Illegal Activity Regardless therefore of their motives, or the validity of their claims, the striking workers must cease and/or desist from any and all acts that tend to, or undermine this authority of the Secretary of Labor, once an assumption and/or certficiation order is issued. They cannot, for instance, ignore return-towork orders, citing unfair labor practices on the part of the company, to justify their actions. We also wish to point out that an assumption and/or certification order of the Secretary of Labor automatically results in a return-to-work of all striking workers, whether or not a corresponding order has been issued by the Secretary of labor. Once an assumption/certification order is issued, strikes are enjoined, or if one has already taken place, all strikers shall immediately return to work. A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Article 264 of the Labor Code, as amended. Certification of the dispute to the NLRC makes the continuation of the strike illegal, provided that the parties are duly notified of the certification order. Notice to the parties is a prerequisite even if the order states that it is "immediately executory." PNOC Dockyard and Engineering Corp. vs. NLRC, et al., G.R. No. 118223, June 26, 1998 Basic is the rule that no order, decision or resolution - not even one that is "immediately executory" - is binding and automatically executory unless and until the proper parties are duly notified thereof. 14.8 Refusal to Receive the RTWO Refusal to receive the AJO (Assumption of Jurisdiction Order) amoints to defiance of the Order, which defiance makes the continuation of the strike an illegal act, thus subjecting the strikers to loss of employment status. The strikers should resume work immediately upon receipt or constructive receipt of the Order. A grace period may be given but that is not required by law. University of San Agustin vs. CA, et al., G.R. No. 169632, March 28, 2006 The September 16, 2003 Union's Board Resolution No. 3 which gave sole authority to its president to receive the AJO must not be allowed to circumvent the standard operating procedure of the Office of the Undersecretary for Labor Relations which considers AJOs as duly served upon posting of copies thereof on designated places. The procedure was adopted in order to prevent the thwarting of AJOs by the simple expedient of refusal of the parties to receive the same, as in this case.

No reversible error was seen in the CA's finding that the strike of September 19, 2003 was illegal. Consequently, the Union officers were deemed to have lost their employment status for having knowingly participated in said illegal act. The tenor of these ponencias indicates an almost instantaneous of automatic compliance for a striker to return to work once an AJO has been duly served. _______________ The mere issuance of an assumption order by the Secretary automatically carries with it a return-towork order. Article 264. Prohibited Activities Any union officer who knowingly participates in illegal strike and any striker or union officer who knowingly participates in the commission of illegal acts during the strike may be declared to have lost his employment status: Provided that mere participation of a worker in 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. The rationale for this prohibition is that once jurisdiction over the labor dispute has been properly acquired by the competent authority, such jurisdiction should not be interfered with by the application of coercive processes of a strike. The necessary consequence thereof is detailed by the Supreme Court in Marcopper Mining Corp. vs. Brilliantes, wherein the Court stated that: "by staging a strike after the assumption of jurisdiction or certification for arbitration, workers forfeited their right to be admitted to work, having abandoned their employment, and could be validly replaced." 14.9 Defying the RTWO Sarmiento vs. Tuico, G.R. Nos. 75271; Asian Transmission Corp. vs. NLRC G.R. No. 77567, June 27, 1988 Returning to work in this situation is not a matter of option or voluntariness but of obligation. That is the reason such return can be compelled. So imperative is the order in fact that it is not even considered violative of the right against involuntary servitude. The worker can of course give up his work, thus severing his ties with the company, if he does not want to obey the order, but the order must be obeyed if he wants to retain his work even if his inclination is to strike. One purpose of the return-to-work order is to protect the workers who might otherwise be locked out by the employer for threatening or waging the strike. But the more important reason is to prevent impairment of the national interest in case the operations of the company are disrupted by a refusal of the strikers to return to work as directed. 14.10 Defiance of RTWO, an Illegal Act

St. Scholastica's College vs. Hon. Ruben Torres and Samahan ng Manggagawang Pang-edukasyon sa Sta. Escolastika-NAFTEU, G.R. No. 100158, June 29, 1992 Article 263 (g) of the Labor Code provides that if a strike has already taken place at the time of assumption, "all striking x x x employees shall immediately return to work." This means that by its very terms, a return-to-work order is immediately effective and executory nonwithstanding the filing of a motion for reconsideration. To say that its (return-to-work order) effectivity must wait affirmance in a motion for reconsideration is not only to emasculate it but indeed to defeat its import, for by then the deadline fixed for the returnto-work would, in the ordinary course, have already passed and hence can no longer be affirmed insofar as the time element is concerned. To justify dismissal, the defiance of the return-to-work order must be proved. For abandonment to constitute a valid cause for termination of employment, there must be a deliberate, unjustified refusal for the employee to resume his employment. Thus, the alleged or perceived defiance of the RTWO does not mean automatic dismissal of the defying employees. Due process must be observed. Given the chance to explain, the employees may prove that there was no defiance at all. 14.10a "Abandonment" has Varying Elements It agrees with the NLRC in explaining that abandonment of work as a ground to dismiss under Article 282 (b) of the Code should not be confused with abandonment of work under the law on strike, particularly under Article 263 (g) and 264 (a). The rule that to constitute abandonment of position, there must be a concurrence of the intention to abandon and some overt act from which it may be inferred that the employee has no more interest in working is available as a defense against dismissals under Article 282. But it cannot be invoked in dismissals resulting from a striker's defiance of return-to-work order under Article 263 (g) or 264 (a). But the Secretary of Labor may temper the consequence of the defiance to the RTWO. He may merely suspend rather than dismiss the employees involved. 14.11 Restoration of Condition Upon Issuance of Return-to-Work Order An order to return to work, which the Labor Court may properly issue in the exercise of its power of arbitration and conciliation, is intended to restore the strikers to their positions in the company under the last terms and conditions existing before the dispute arose. Telefunken Semiconductors Employees Union-FFW vs. Secretary of Labor, et al., G.R. Nos. 122743 and 127215, December 12, 1997 A return-to-work order is immediately effective and executory nonwithstanding the filing of a motion for reconsideration. Thus to exclude union officers, shop stewards and those with pending criminal charges in the directive to the COMPANY to accept back the striking workers without first determining whether they knowingly committed illegal acts would be tantamount to dismissal without due process of law.

14.12 Actual, Not Payroll, Readmission The Court interprets the third sentence of Article 263 (g) means actual, not payroll, readmission to the employees'' positions. The argument failed to convince the Supreme Court which even reiterated that Article 263 (g) constitutes an exception to the management prerogative of hiring, firing, transfer, demotion and promotion of employees. This is in keeping with the rationale that any work stoppage or slowdown in that particular industry can be inimical to the national economy. [The Supreme] Court, through Justice Azcuna, reiterates that this law was written as a means to be used by the State to protect itself from an emergency or crises. It is not for labor, nor is it for management. EXCEPTION In another case, the Court recognizes that one of the "superseding circumstances" that jusfies payroll reinstatement [instead of actual reinstatement] which is the norm in readmission of workers under Article 263 (g)] is the fact that the subject employees' positions were declared confidential in nature by a panel of voluntary arbitrators. To insist on their actual reinstatement is impracticable and more likely to exacerbate the situation. Neither did the Secretary of Labor abuse her discretion when she allowed payroll reinstatement of the strikers in a large hotel. She did not insist that the management physically and immediately reinstate them because as the management pointed out, it would not look nice to have bald staff attending to the hotel's guests. Protesting against CBA negotiation deadlock, those employees had shaved their heads then went on strike. When the Secretary of Labor issued the return-to-work order they still had shiny, hairless heads! The Court ruled that it had "great confidence" in the secretary's discretion. 14.13 Voluntary Return-to-Work Is Not Waiver of Original Demands Bisaya Land Transportation Company, Inc. vs. Court of Industrial Relations and Philippine Marine Radio Officers Association, 102 Phil 438. The fact that the radio operators returned back to work and ended their strike only meant that they desisted from the strike; such desistance is a personal act of the strikers, and cannot be used against the union and interpreted as a waiver by it of its original demands for which the strike was adopted as a weapon. 14.14 All Issues to be Determined in the Certified Industrial Dispute The parties should not be permitted to isolate other germane issues or demands and reserve them for determination in the other cases pending before other branches of the industrial court.

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