BAR EXAMS IN LABOR AND SOCIAL LEGISLATION

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TITLE VIII STRIKES AND LOCKOUTS ARTICLES 263 - 272

2003
Question No. III ARTS 263 & 264 - STRIKE 2003

In a labor dispute, the Secretary of Labor issued an Assumption Order. Give the legal implications of such an order. SUGGESTED ANSWER: Under ART 263 [g], LC, such assumption shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption order. If one had already taken place at the time of assumption, all striking or lockout employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lockout . The Secretary of Labor and Employment may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order. Those who violate the foregoing shall be subject to disciplinary action or even criminal prosecution. Under ART 264, LC, no strike or lockout shall be declared after the assumption of jurisdiction by the Secretary. Question No. IV ART 264 - STRIKE 2003

Magdalo, a labor union in Oakwood, a furniture manufacturing firm, after failing in its negotiations with Oakwood, filed with the DOLE a notice of strike. The DOLE summoned Magdalo and Oakwood for conciliation hearings to resolve the deadlock. Unable to agree despite efforts of the DOLE, Magdalo called a strike participated in by its officers and union members including Cesar Trinio, a rank-and-file employee, who led the walk-out. Oakwood filed a petition to declare illegal the strike which Magdalo staged without observing the sevenday ban under the Labor Code. Oakwood claimed that the strike being illegal, all those who participated therein, including Cesar Trinio, could be dismissed as, in fact, they were so dismissed by Oakwood. Decide the case. SUGGESTED ANSWER: When Oakwood dismissed all the officers and members of the union who participated in the strike which was declared illegal because it was staged without observing the seven-day ban under the Labor Code, Oakwood illegally dismissed the union members, including Cesar Trinio.

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The Labor Code (ART 264 [c]) provides that a union officer who knowingly participates in an illegal strike loses his employment status. Thus, the union officers were legally dismissed. But for a union member to lose his employment status, he should have committed illegal acts during the strike, like acts of violence, coercion or intimidation or obstruction of ingress to or egress from the employers premises for lawful purposes or obstruction of public thoroughfares. The union members, including Cesar Trinio, did not commit any of these acts. Thus, it would be illegal to dismiss them. Question No. VIII ART 263 - STRIKE 2000

a) What is the rationale for the State regulation of strike activity and what are the interests involved that the State must balance and reconcile? b) Cite two (2) examples on how law regulates the use of the strike as a form of concerted activity. SUGGESTED ANSWER: a) The first rationale is the constitutional provision that the right to strike is to be exercised in accordance with law. Another rationale is the Civil Code provision that the relations between employer and employee are imbued with public interest and are subject to the provisions of special law. A third rationale is the police power of the state. The interests to be balanced are the rights of the workers, as primary socio-economic force, to protection of the law, to security of tenure, to concerted activities, etc. These should be balanced with the right of the employer to reasonable return on investment and to expansion and growth. General welfare or the general peace and progress of society should also be considered. This is why assumption of jurisdiction and certification to NLRC are allowed in national interest cases. (ART 263, LC) b) Examples: (1) procedural requirements should be observed, namely, filing of notice of strike, observance of cooling-off period, taking of strike note, and report of the strike vote; (2) use of violence, intimidation or coercion and blockade of ingress-egress are not allowed. (ART 263 [b] [c] [f] [g], LC) Question No. XVII ART 263 2000

A division manager of a company taunted a union officer two days after the union submitted to the DOLE the result of the strike vote. The division manager said: Your union of threat of an unfair labor practice strike is phony or a bluff. Not even ten percent (10%) of your members will join the strike. To prove the union member support for the strike, the union officer immediately instructed its members to cease working and walk out. Two hours after the walkout, the workers voluntarily returned to work. a) Was the walkout a strike? And if so, was it a valid activity?

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b) Can the union officer who led the short walk-out but who likewise voluntarily led the workers back to work, be disciplined by the employer? SUGGESTED ANSWER: a) Yes, it was a strike because there was a work stoppage by concerted action and there is an existing labor dispute. It was not a valid activity because the requisites for a valid strike were not observed. (ART 212 [o],[l], LC). b) Yes, the employer may discipline the union officer. An illegal strike is a cause for the union officer to be declared to have lost his employment status. (ART 263 c,d,e,f; ART 264 [a], LC) Question No. XVIII STRIKE 2000

The workers engaged in picketing activity in the course of a strike. a) Will picketing be legal if non-employees of the strike-bound employer participate in the activity? b) Can picketing activity be curtailed when illegal acts are committed by the picketing workers in the course of the activity? SUGGESTED ANSWER: a) Yes, picketing is legal even though non-employees join it. Picketing is a form of the exercise of freedom of speech. Picketing, provided it is held peacefully, is a constitutional right. The disputants in a legal dispute need not be employer-employee of each other. b) No, the picketing activity itself cannot be curtailed. What can be curtailed are the illegal acts being done in the course of the picket. However, if this is a national interest case under ART 263 [g], the strike or work stoppage may be stopped by the power of assumption of jurisdiction or certification of the case to the NLRC. Question No. 20 ART 263 1998

The Secretary of Labor and Employment, after assumption of jurisdiction over a labor dispute in an airline issued a Return to Work Order. The airline filed a Motion for Reconsideration of the Order and pending resolution of the motion, deferred the implementation of the Order. Can the airline defer the implementation of the Return to Work Order pending resolution of the motion for reconsideration? SUGGESTED ANSWER:

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The airline cannot defer the implementation of the Return to Work Order on the basis of there being a pending Motion for Reconsideration re: the assumption of jurisdiction by the Secretary of Labor and Employment of a labor dispute. According to the Supreme Court, the Return to Work Order issued by the Secretary of Labor upon his assumption of jurisdiction over a labor dispute in an industry indispensable for the national interest is immediately executory. Another Suggested Answer: No, the airline cannot defer the implementation of a return to work order pending resolution of a Motion for Reconsideration. The Labor Code reads ART 263 Strikes, picketing , and lockouts. xxx (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 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 as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking employee shall immediately return to work. (underscoring supplied) The Supreme Court, in Baguio College Foundation vs. NLRC, 222 SCRA 604 [1995], ruled xxx assumption and certification orders are executory in character and are to be strictly complied with by the parties even during the pendency of any petition questioning their validity. Being executory in character, there was nothing for the parties to do but implement the same. Question No. 6 STRIKE 1997

The Kilusang Kabisig, a newly-formed labor union claiming to represent a majority of the workers in the Microchip Corporation, proceeded to present a list of demands to the management for purposes of collective bargaining. The Microchips Corporation, a multinational corporation engaged in the production of computer chips for export, declined to talk with the union leaders, alleging that they had not as yet presented any proof of majority status. The Kilusang Kabisig then charged Microchip Corp. with unfair labor practice, and declared a wildcat strike wherein means of ingress and egress were blocked and remote and isolated acts of destruction and violence were committed.

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a) Was the strike legal?

b) Was the company guilty of unfair labor practice when it refused to negotiate with the Kilusang Kabisig? ANSWER: a) Because what was declared is a wildcat strike the strike is illegal. A WILDCAT STRIKE is one that is one declared by a group of workers without formal union approval. Thus, it is illegal because the Labor Code requires that for a strike to be legal, among others, the decision to declare a strike to be approved by a majority of the total union membership in the bargaining unit concerned, obtained by a secret ballot in meetings or referenda called for that purpose. Alternative Answer: a) 1) The strike is illegal. The Labor Code recognizes only one of two (2) grounds for a strike to be legal: bargaining deadlock or unfair labor practice. A strike to compel an employer to recognize a union is not allowed by law. 2) The strike is not illegal. For the strike to be illegal because of violence, it should be characterized by pervasive violence. Here, there were only remote and violated acts of destruction and violence. But even if the strike is not illegal, those strikers who committed illegal acts, namely, those who blocked the means of ingress or egress and who committed acts of destruction and violence, these strikers can be legally dismissed. b) No. It is not an unfair labor practice (ULP) not to bargain with a union which has not presented any proof of its majority status. The Labor Code imposes on an employer the duty to bargain collectively only with a legitimate labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit. It is not a ULP for an employer to ask a union requesting to bargain collectively that such union first show proof of its being a majority union. Question No. 14 STRIKE 1997

The Secretary of Labor assumed jurisdiction over a strike in Manila Airlines and eventually issued a return-to-work. The Manila Airlines Employees Union defied the return to work order and continued with their strike. The management of Manila Airlines then declared all the employees who participated in the strike dismissed from employment. a) Was the act of Manila Airlines management in dismissing the participants in the strike valid? b) What are the effects of an assumption of jurisdiction by the Secretary of Labor upon the striking employees and Manila Airlines? ANSWER:

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a) Yes. The act of Manila Airlines management in dismissing the participants in the strike is valid. In a number of Supreme Court decisions, it has ruled that the defiance by workers of a return to work order of the Secretary of Labor issued when he assumes jurisdiction over a labor dispute is an illegal act and could be the basis of legal dismissal. The return to work order imposes a duty; it must be discharged as a duty even against the workers will. b) When the Secretary of Labor assumes jurisdiction over a strike, all striking 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. (ART 263 [q]) Question No. 15 STRIKE 1997

A strike was staged in Mella Corporation because of a deadlock in CBA negotiations over certain economic provisions. During the strike, Mella Corp. hired replacements for the workers who went on strike. Thereafter, the strikers decided to resume their employment. Can Mella Corp. be obliged to reinstate the returning workers to their previous positions? ANSWER: Yes, Mella Corp. can be obliged to reinstate the returning workers to their previous positions. Workers who go on strike do not lose their employment status except when, while on strike they knowingly participated in the commission of illegal acts. The Labor Code expressly provides: Mere participation of a worker in a lawful strike should not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. Question No. 10 1996 STRIKE

A deadlock in the negotiations for the collective bargaining agreement between X College and the Union prompted the latter, after duly notifying the DOLE, to declare a strike on November 5 which totally paralyzed the operations of the school. The Labor Secretary immediately assumed jurisdiction over the dispute and issued on the same day (November 5) a return to work order. Upon receipt of the order, the striking union officers and members on November 7, filed a motion for reconsideration thereof questioning the Labor Secretarys assumption of jurisdiction, and continued with the strike during the pendency of their motion. On November 30, the Labor Secretary denied the reconsideration of his return to work order and further noting the strikers failure to immediately return to work terminated their employment. In assailing the Labor Secretarys decision, the Union contends that:

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1) The Labor Secretary erroneously assumed jurisdiction over the dispute since X College could not be considered an industry indispensable to national interest; 2) The strikers were under no obligation to immediately comply with the November 5 return to work order because of their then pending motion for reconsideration of such order; and 3) the strike being legal, the employment of the striking Union officers and members cannot be terminated. Rule on these contentions. Explain. ANSWER: 1) The Supreme Court has already ruled that educational institutions are in an industry indispensable to the national interest, considering the grave adverse effects that their closure entails on their students and teachers. 2) The striking workers must immediately comply with a Return to Work Order even pending their motion for reconsideration. Compliance is a duty imposed by law, and a Return to Work Order is immediately executory in character. The nature of a Return to Work Order, was characterized by the Supreme Court in Sarmiento vs. Juico, 162 SCRA 676 [1988] as: It is also important to emphasize that the return to work order is not so much confers a right as it imposes a duty. It must be discharged as a duty even against the workers will. Returning to work in this situation is not a matter of options or voluntariness but of obligation. In Baguio Colleges Foundation vs. NLRC, 222 SCRA 604 [1993], the Court ruled: Assumption and certification orders are executory in character and are to be strictly complied with by the parties even during the pendency of any petition questioning their validity. 3) The continuing strike is illegal because it is in defiance of a return to work order of the Secretary of Labor and Employment, hence, termination of employment of all those who participated whether officer or member, is legal. In Sta. Scholasticas College vs. Torres, 210 SCRA 565 [1992], the Court ruled: Any worker or union officer who knowingly participates in a strike defying a return to work order may, consequently, be declared to have lost his employment status in accordance with Art 246 Labor Code. Question No. 13 1995 STRIKE

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Fifty percent (50%) of the employees of Grandeur Company went on strike after negotiations for a CBA ended in a deadlock. Grandeur Company, being a public utility, immediately petitioned the Secretary of Labor to assume jurisdiction and certify the case to the NLRC. On the fourth day of the strike and before the DOLE Secretary could assume jurisdiction or certify the case to the NLRC, the strikers communicated in writing their offer to return to work. Grandeur Company refused to accept the offer of strikers because it realized that they were not at all capable of paralyzing the operations of the company. The strikers accused Grandeur Company of illegal lockout. Has Grandeur committed the act charged by refusing to accept the offer of the strikers to return to work? Discuss fully. ANSWER: There is no law that prohibits strikers to decide not to continue with a strike that they have started. Thus, the company committed an illegal lockout in refusing to accept the offer of the strikers to return to work. Under the set of facts in the questions, the Company did not give the required notice to lockout, much less did it observe the necessary waiting period, nor did it take a needed vote on the lockout. Thus, the lockout is illegal. Question No. 14 STRIKE 1995

1. What are the objectives of the Secretary of Labor and Employment in certifying a labor dispute to the NLRC for compulsory arbitration? Explain. ANSWER: The objectives of the Secretary of Labor in certifying a labor dispute to the NLRC for compulsory arbitration is to prevent a work stoppage that may adversely affect the national interest and to see to it that a labor dispute is expeditiously settled. 2. Are the strikers in an illegal strike entitled to reinstatement under the Labor Code? Explain. ANSWER: No, union officers and members who commit illegal acts lose their employment status. 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 their employment status. Participants (not a union officer and did not commit any illegal act) may be entitled to reinstatement.

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3. If the strike is declare illegal, will the strikers be entitled to their wages for the duration for the strike? Explain. Alternative Answer: No. The applicable doctrine will be: No work, no pay, unless there is an agreement to pay strike duration pay. Question No. 7 STRIKE 1994

The Secretary of Labor assumed jurisdiction over a strike under Art 263 [g] of the Labor Code and issued a return-to-work order. The Union defied the return-to-work order and continued the strike. The Company proceeded to declare all those who participated in the strike as having lost their employment status. 1) Was the Companys action valid? 2) Was the Company still duty bound to observe the requirements of due process before declaring those who participated in the strike as having lost their employment status? ANSWER: 1) The Companys action is valid. Any declaration of a strike after the Secretary of Labor has assumed jurisdiction over a labor dispute is considered an illegal act, and any worker or union officer who knowingly participates in a strike defying a return-to-work order may consequently be declared to have lost his employment status and forfeited his right to be readmitted, having abandoned his position, and so could be validly replaced. For the moment a worker defies a return-to-work order, he is deemed to have abandoned his job, as it is already in itself knowingly participating in an illegal act, otherwise the worker will simply refuse to return to his work and cause a standstill in company operations while returning the position he refuses to discharge or allow management to fill. 2) Considering that the workers who defied the return-to-work order are deemed to have abandoned their employment, the only obligation required of an employer is to serve notices declaring them to have lost their employment status at the workers last known address. Question No. 8 STRIKE 1994

Union A filed a Notice of Strike with the NCMB of the DOLE. Upon a motion to dismiss by the Company on the ground that the acts complained of in the notice of strike are nonstrikeable, the NCMB dismissed the Notice of Strike but continued to mediate the issues contained therein to prevent the escalation of the dispute between the parties. While the NCMB was conducting mediation proceedings, the Union proceeded to conduct a strike vote as provided for under the Labor Code. After observance of the procedural processes required under the Code, the Union declared a strike.

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1) Is the strike legal?

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2) Can the employer unilaterally declare those who participated in the strike as having lost their employment status? 3) What recourse do these employees (declared by the employer to have lost their employment status) have, if any? ANSWER: 1) No. The strike is not legal. The Labor Code provides that no labor organization shall declare a strike without first having bargained collectively in accordance with its TITLE VII, BOOK V, which in turn provides that during conciliation proceedings at the NCMB, the parties are prohibited from doing any act that may disrupt or impede the early settlement of the dispute. (ARTS 264 [a], also 250 [d], LC) Alternative Answer: a) The strike is not legal, considering that it was declared after the NCMB dismissed the Notice of Strike. Hence, it is as if, no notice of strike was filed. A strike declared without a notice of strike is illegal. b) No. The strike is illegal. It is already settled in the case of PAL vs. Sec of Labor (Drilon) that the pendency of a mediation proceedings is a bar to the staging of a strike even if all the procedural requirements were complied with. 2) The employer may unilaterally declare those who participated in the strike as having lost their employment status but such unilateral declaration does not necessarily mean that thereby the strikers are legally dismissed. The strikers could still file a case of illegal dismissal and prove, if they can, that there was no just cause for their dismissal. Alternative Answer: a) The employer cannot unilaterally declare those who participated in the illegal strike as having lost their employment status. Only the union officers who knowingly participated in the strike and workers who knowingly participated in the commission of illegal acts, if any, may be declared to have lost their employment status. (ART 264). b) The employer has two options: i. ii. It may declare the strikers as having lost their employment status pursuant to Article 264 of the Labor Code; or It may file a case before the Labor Arbiter, under Art 217, to have the strike declared illegal and after that proceed to terminate the strikers.

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3) They could file a case of illegal dismissal. The strikers who are union officers may contend that the strike is not illegal. The strikers who are mere union members may contend that they did not commit any illegal acts during the strike. (ART 264, LC) Alternative Answer: a) The employees who were declared to have lost their employment status can file a complaint for illegal dismissal with the NRLC or seek the assistance of the NCMB for conciliation/mediation. The recourse of the workers whose employment status are declared to have been lost is to file a case of illegal dismissal under ART 217 of the Code, and to pray for the suspension of the effects of termination under ART 277 [b], because it involves a mass lay-off. 9 STRIKE

b)

Question No. 1994

Company X, a transportation company, and Union Y were in the process of negotiating a new CBA to replace the one which expired on March 15, 1990. The negotiations reached an impasse on economic issues on June 30, 1990. The Secretary of Labor assumed jurisdiction over the dispute and certified the same to the NLRC for proper disposition. Proceedings before the NLRC ended on November 30, 1990. The said decision made retroactive to March 15, 1990 the new CBA containing the issues resolved by the NLRC, as well as those concluded and agreed upon by the parties prior to their arriving at a deadlock in their negotiations. Company X questioned the retroactivity of the CBA, alleging that the same contravenes Art 253-A of the Labor Code, which provides for the automatic retroactivity of the renewed CBA only if the same is entered into within 6 months from its expiry date, and, if not, the parties must agree on the duration of retroactivity. 1) Is Company Xs position correct? 2) Would your answer be the different if the assumption of jurisdiction by the Secretary of Labor was at the request or instance of Company X? ANSWER: 1) The Companys position is not correct. In the absence of a specific provision of law prohibiting retroactivity of the effectivity of arbitral awards issued by the Secretary of Labor, the same is deemed vested with plenary and discretionary powers to determine the effectivity thereof. 2) No. Regardless of which party sought the assumption by the Labor Secretary, the effect would be the same. An assumption case gives the Labor Secretary the plenary arbitration powers to rule on the issues presented for resolution, including the retroactivity of the new CBA.

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Question No. 2

STRIKE ART 263

1992

Calabarzon Transportation Company (CTC) and the Calabarzon Workers Union (CWU) are parties to a CBA, which is effective until December 31, 1992. The CBA provides for among others, a bipartite committee composed of CTC and CWU representatives to evaluate all positions in the CTC and determine adjustment of wages and allowances. The Committee members having failed to agree on the adjustments, the CWU filed a notice of strike. Conciliation efforts by the NCMB failed. The CWU then declared a strike. The Secretary of Labor and Employment assumed jurisdiction over the dispute and after proceedings issued an order (a) awarding certain monetary benefits to the strikers, (b) declaring the strike legal on the ground that CWU complied with all the requirements for a valid strike, and (c) restraining CTC from taking retaliatory actions against the officers and members of CWU who were responsible for the strike. a) As lawyer for CTC, what action should you take? SUGGESTED ANSWER: As lawyer of CTC, I will first file with the Secretary of Labor a Motion for Reconsideration. If this Motion is denied, then I will file with the Supreme Court a petition for certiorari under Rule 65 of the Rules of Court. I will assail the issuance by the Sec of Labor of his Order, and his refusal to reconsider the Order as a grave abuse of discretion amounting to lack of excess of jurisdiction. b) Was the assumption of the labor dispute by the Secretary of Labor valid? SUGGESTED ANSWER: It is valid. Under the Labor Code, (ART 263 [g]), the Secretary of Labor has the power to assume jurisdiction over a labor dispute causing of likely to cause a strike or lockout in an industry indispensable to the national interest. CTC, as a transportation Company, is an industry indispensable to the national interest. c) Was the Secretarys order granting monetary benefits, declaring the strike of CWU legal and restraining the CTC from penalizing CWU members valid? Reasons. SUGGESTED ANSWER:

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The Secretarys order declaring the strike of CWU legal and restraining the CTC from penalizing CWU members on the basis of the finding of the Secretary that the strike is legal, is illegal. He is acting in excess of his jurisdiction. It is a Labor Arbiter, not the Sec of Labor, that has the jurisdiction to determine the legality of a strike. (ART 217, LC). The Secretarys Order granting monetary benefits is valid. When the Secretary assumed jurisdiction over the labor disputes, he assumed such jurisdiction for compulsory arbitration, meaning, he could thereby determine the monetary benefits that CTC and CWU cannot agree about. Question No. 11 ART 264 1992

Freibourg Electronics Corp. which employs 400 rank and file employees, 80 supervisors and 20 managerial personnel, negotiated a CBA with the Moderno Labor Union (MLU), the bargaining representative of the rank and file employees. Because of deadlocked negotiations, MLU after complying with the legal requirements, declared a strike and picketed the Companys gates. The pickers obstructed the free ingress into the egress from the premises. Fearing that it might not meet its commitments to European and American buyers, the Company appealed to the MLU to allow entry of personnel who were willing to work. MLU rejected the appeal. On the tenth day of the strike a squad of policemen escorted the managerial and supervisory personnel and 100 rank and file employees entering the Companys premises to work. During the entry, 20 supervisors and 50 rank and file employees were beaten by the picketers. The MLU charged the Company and the policemen with violation of the anti-scab law under the Labor Code. The Company, for its part, filed a petition to declare the strike and picketing illegal. As the Labor Arbiter, resolve the MLUs charge and the Companys petition with reasons. SUGGESTED ANSWER: The charge made by MLU that the Company and the policemen violated the anti-scab law under the Labor Code has no basis. The Code provides that no public official or employee, including officers and personnel of the New Armed Forces of the Philippines and the Integrated National Police, or armed personnel, shall bring in, introduce or escort in any manner any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of strikers. (ART 264 [d], LC). The Company or the policemen did not violate the above provision of the Labor Code when a squad of policemen escorted the managerial and supervisory personnel and 100 rank and file employees in entering the Companys premises to work because the above personnel and employees are old employees, not new employees who will replace the strikers. The Companys petition to declare the strike and picketing illegal has basis. The picketers committee an unlawful act when they obstructed the free ingress into and egress from the

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Company premises. The beating up by the picketers of 20 supervisors and 50 rank and file employees is also the basis for making the strike illegal. Alternative Answer: The Labor Code, (ART 264 [d]), provides that the police force shall keep out of the picket lines unless actual violence and other criminal acts occur therein. In the case in the question, when a squad of policemen escorted the personnel and employees in entering the Companys premises to work, the policemen violated the above provision of the Labor Code by crossing the picket lines, when as yet there was no actual violence, other criminal acts were not occurring. Question No. 14 STRIKE 1991

The Pilots Association of the Filipinas Lipad Corp. failed to agree on the interpretation of the training pay provision of their CBA. The union claimed that the pay rate should apply upon the presentation by the pilot of his Philippine license. The corporation maintained that the pay rate should begin upon submission not only of the Philippine license, but also of the certificate required by the country where the planes are manufactured. The parties are deadlocked over the issue. The union accused the management of committing an unfair labor practice by violating the CBA. After complying with all the requirements of a valid strike, the union went on strike. Was there a valid strike? ANSWER: The strike is not valid. It is true that the Labor Code provides that if an employer violates a CBA, the said employer commits an ULP act, which in turn is a legal ground for a strike. But RA 6715 amended the Labor Code by providing that violations of a CBA, except those which are gross in character shall no longer be treated as ULP and shall be resolved as grievances under the CBA. The violation involved in the question is not a gross violation because there is no flagrant and/or malicious refusal to comply with the economic provisions of such agreement which is how the Code defines a gross violation of a CBA. Question No. 2 STRIKE 1989

On May 24, 1989, the UKM urged its member-unions to join a Welga ng Bayan in support of its efforts to pressure Congress to increase the daily minimum wage. Union X is a member of the UKM and represents all the rank and file employees of the Puritan Mining Company. Following the call for a nationwide strike, Union X staged a strike and put up a picket the following day. As a result, the companys operations were paralyzed although company officials and supervisory employees were allowed ingress and egress to and from the company premises. The picket was likewise peaceful. On May 28, 1989, the UKM leadership announced the end of the Welga ng Bayan. Union X immediately lifted its picket and its members went

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back to work. The company sought your legal advice on the legality of the strike and the liability, if any, of the union officers and the participating members. What is your opinion? Explain. ANSWER: The strike was illegal. For a strike to be legal, it should either be an economic strike, i.e., caused by a bargaining deadlock or an unfair labor practice strike, i.e. caused by the commission of an unfair labor practice by an employer. The strike of Union X was neither an economic strike or an unfair labor strike. Thus, it was an illegal strike. Because it was an illegal strike, any union officer who knowingly participated in it may be declared to have lost his employment status, meaning such union officer could be legally terminated. As for the union members who participated in the strike, the facts show that no illegal acts were committed. They allowed ingress and egress to and from the company premises. The picket was peaceful. The mere participation of the union members, without their committing illegal acts, does not constitute sufficient ground for the termination of their employment. Alternative Answer: The strike is legal

Question No. 15

STRIKE

1991

The Manila Industrial Corp. has 50 contract workers supplied by the National Employment Agency. They joined the Novato Labor Union, the sole and exclusive bargaining representative of the rank and file workers in the company. In turn, the union demanded that the company consider the 50 new union members as regular employees in accordance with the Labor Code. When the company refused to make their employment regular, the union, after complying with the requirements, staged a strike. The Secretary of Labor assumed jurisdiction of the case. Assuming that there is no employer-employee relationship between the company and the 50 contract workers, is there is a labor dispute between them properly falls under the jurisdiction of the Secretary of Labor and Employment? ANSWER: Yes. There is a labor dispute that could properly fall under the jurisdiction of the Secretary of Labor assuming that Manila Industrial Corp. is an industry indispensable to the national interest, since the dispute between the corporation and the contract workers is a labor dispute, even there is no employer-employee relationship between the corporation and the contract workers.

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Under the Labor Code, a labor dispute includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. From the above definition, it is noted that there is a labor dispute regardless of whether the disputants stand in proximate relation of employer and employee. The demand of the union that the company regularize the employment of the contract worker is a controversy concerning terms and conditions of employment. Question No. 2 STRIKE 1989

On May 24, 1989, the UKM urged its member-unions to join a Welga ng Bayan in support of its efforts to pressure Congress to increase the daily minimum wage. Union X is a member of the UKM and represents all the rank and file employees of the Puritan Mining Company. Following the call for a nationwide strike, Union X staged a strike and put up a picket the following day. As a result, the companys operations were paralyzed although company officials and supervisory employees were allowed ingress and egress to and from the company premises. The picket was likewise peaceful. On May 28, 1989, the UKM leadership announced the end of the Welga ng Bayan. Union X immediately lifted its picket and its members went back to work. The company sought your legal advice on the legality of the strike and the liability, if any, of the union officers and the participating members. What is your opinion? Explain. ANSWER: The strike was illegal. For a strike to be legal, it should either be an economic strike, i.e., caused by a bargaining deadlock or an unfair labor practice strike, i.e. caused by the commission of an unfair labor practice by an employer. The strike of Union X was neither an economic strike or an unfair labor strike. Thus, it was an illegal strike. Because it was an illegal strike, any union officer who knowingly participated in it may be declared to have lost his employment status, meaning such union officer could be legally terminated. As for the union members who participated in the strike, the facts show that no illegal acts were committed. They allowed ingress and egress to and from the company premises. The picket was peaceful. The mere participation of the union members, without their committing illegal acts, does not constitute sufficient ground for the termination of their employment. Alternative Answer: The strike is legal

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Question No. 16

STRIKE

1989

What do you understand by the improved offer balloting? ANSWER: A strike may be an economic strike, namely, it is a strike caused by the deadlock at the bargaining table. A deadlock may arise because the offer of the employer, e.g., its offer of a 20% across-the-board increase in wages and salaries, was not accepted by the Union who wanted a 50% increase. After considering the matter, the employer may improve its offer, e.g., it offers a 35% increase. This improved offer of the employer may be submitted to the union members on or before the 30th day of the strike. The secret balloting that will determine whether a majority of the union members accept the improved offer of the employer is the so-called IMPROVED OFFER BALLOTING. In case it is a lockout, and not a strike, what may be the subject matter of a secret balloting, this time among the members of the Board of Directors of the employer, may be the reduced offer of the union, i.e. instead of asking for 50% across the board increase in wages and salaries, it may reduce its demand to 25%. Question No. 9 STRIKE 1986

A newly-formed labor union, the Kilusang Numero Dos, claiming to represent the majority of the workers in the Blue Chips Corp., presented a list of demands to the management for collective bargaining negotiations. The company, a multinational corporation manufacturing integrated circuits and semi-conductors for export, declined to talk to the union leaders, contending that they have not presented evidence of majority status. The KND then charged Blue Chips Corp. with ULP and declared a wildcat strike, barricading all entrances and exits, thus preventing people from going in or out. a) Is the strike legal? Why or why not? b) Is the companys refusal to talk to and bargain with the KND an unfair labor practice? Explain your answer. c) As the companys lawyer, what would be your advice to management in handling the demand for recognition and bargaining and the strike itself? d) As the lawyer for the KND, what course of action would you advise the union leaders to pursue after the companys refusal to deal with them? Explain your answer.

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ANSWER:

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a) The strike is not legal. It is a wild cat strike, thus, it is presumed that the required twothirds strike vote was not secured. There was a barricading of all entrances and exits, thus preventing people from going in and out. This act is one of the activities expressly prohibited by the Labor Code, which provides that no person in a strike shall obstruct the free ingress or egress from the employers premises for lawful purposes. b) The companys refusal to talk to or bargain with the KND is not an ULP if it declined to talk to the union leaders in the sincere belief that that union is not the union designated or selected by the majority of the employees in an appropriate collective bargaining unit to represent them for the purpose of collective bargaining. It is the legal obligation of the employer to bargain collectively only with the duly designated or selected collective bargaining representative of the employees. c) SA the companys lawyer, I will advise the management to file for the Corporation a petition for certification election so that it may be duly ascertained as to whether KND would act as the collective bargaining representative of the employees. The Labor Code provides that an employer may file a petition for certification election when requested to bargain collectively. As for the strike, I will advise management to file on behalf of the Corporation a petition to the Minister of Labor and Employment for him to assume jurisdiction over the dispute and decide it or certify the same to the NLRC for compulsory arbitration. The Minister has authority to do so under the Labor Code, because it could be argued that the labor dispute which has caused a strike in an enterprise manufacturing for export adversely affects the national interest. d) As the lawyer for the KND, I will advise the union to offer to return to work without qualification and to file a petition for certification election so that, if KND wins in said election, it could present a list of demands to the management for collective bargaining negotiations, this time as the duly certified collective bargaining representative. The Corporation will not be under legal obligation to collectively bargain with KND. Question No. 11 1986

Mr. Van Der Rich, a prospective foreign investor from the United States, attracted by economic opportunities in our country, engages your services as a labor attorney. His main apprehension, however, is the instability of the industrial relations climate. He submits a number of questions for you to explain, among which are the following: a) At start-up, his factory will employ around 100 workers. They will be making leather gloves for export. Can he require them to enter into a contract stating that they cannot form or join a union during the first two years of operation? b) Suppose his workers engage in a wildcat strike, can he replace them with other workers?

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c) He plans to operate 7 days a week on a continuous 24-hour operation divided into 3 shifts of 8 hours each. Will there be a difference in pay for each shift? d) Can he require his workers to work seven days a week, including holidays? e) Under what circumstances may he ask for the arrest and detention of union members or union organizers? ANSWER: a) No. It is an unfair labor practice for an employer to require as a condition of employment that a person or an employee shall not join a labor organization. b) Yes, he can replace the workers engaged in a wildcat strike. The Labor Code (ART 265) has reference to replacements hired by the employer during a strike. However, workers (other than union officers) who participated in wildcat strike but did not commit any illegal act during the strike, like acts of violence, coercion or intimidation, do not lose their employment status even if their replacements have been hired by the employer. c) There is. He has to pay a night shift differential of not less than 10% of the regular wage of the employees for each hour of work performed between ten oclock in the evening and six oclock in the morning. In computing the night shift differential, since the operation is also 7 days a week, the following should be considered: An employer has to pay an additional compensation of at least 30% of the regular wage of the employees for work on their scheduled rest days and non-working holidays. Where such holiday work falls on the employees scheduled rest day, he shall be entitled to an additional compensation of at least 50% of his regular wage. If an employee is working on a regular holiday, such employee shall be paid a compensation equivalent to twice his regular rate. d) As a general rule, no, because the workers have the right to a weekly rest day. However, the employer may require his employees to work on any day under the following circumstances: 1. In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity, to prevent loss of life and property, or imminent danger to public safety; 2. In cases of urgent work to be performed on the machinery, equipment or installation, to avoid serious loss which the employer would otherwise suffer; 3. In the event of abnormal pressure of work due to circumstances where the employer cannot ordinarily be expected to resort to other measures; 4. To prevent loss or damage to perishable goods;

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5. Where the nature of work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and 6. Under other circumstances, analogous or similar to the foregoing as determined by the Minister of Labor and Employment. An employee may be asked to work or perform holiday work but he should be paid additional compensation for holiday work. e) The Labor Code (ART 267) provides that except on grounds of national security and public peace, or in case of commission of crimes, no union members or union organizers may be arrested or detained for union activities without previous consultations with the Minister of Labor and Employment.

Question No. 3

STRIKE

1985

Reaching a deadlock in collective bargaining with management, the union filed a notice of strike on July 1, 1985. In a meeting on July 5, 1985, the union membership overwhelmingly voted to declare the strike. The union furnished the Ministry of Labor the results of the strike vote on July 7, 1985. On July 22, 1985, the union went on strike. Management filed with the Ministry of Labor a complaint to declare the strike illegal on the ground that at the time the notice of strike was filed, the union membership had not yet voted to support the strike. Then, the companys legal counsel referred to the fiscals office a complaint for illegal strike against the union officers and members. The complaint cited Art 273 of the Labor Code which imposes penalties for violations of the requirements for a valid strike by union officers and members. A) Discuss the legality of the strike. B) May the NLRC issue a restraining order to enjoin the strike? Describe fully the power of the NLRC to issue injunction. SUGGESTED ANSWER: A) The strike is not legal. The illegality of the strike is not due to the fact that at the time the notice of strike was filed, the union membership had not yet voted to support the strike. It is enough that at the time the union actually went on strike, at least 2/3 of the union membership had voted to declare a strike, and that due notice has been given of this vote. The illegality of strike is due to the fact that the union went on strike before the lapse of the 30-day cooling-off period required by the Labor Code (ART 264 [c]) for strikes caused by deadlocks in collective bargaining. B) The NLRC may issue a restraining order to enjoin the strike.

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The Labor Code (ART 218 [e]) grants to the NLRC the power to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts in any labor dispute which, if not restrained forthwith, may cause grave or irreparable damage to any party. No temporary injunction against the commission of prohibited acts shall be issued by the Commission, except after due notice and hearing and in accordance with its rules. Any ex parte restraining order issued by the Commission, or its Chairman or Vice Chairman when the Commission is not in session and as may be prescribed by its rules, shall be valid for a period not exceeding 20 days. The reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters, who shall, in cases where the parties are not residents of Metro Manila, conduct such hearings in such places as he may determine to be accessible to the parties and its witnesses and shall submit thereafter his recommendation to the Commission. Question No. 12 STRIKE 1985

The Fruit Canning co. has been requiring its workers to render overtime work of 5 hours everyday for the last six months. The union requested the management repeatedly to cut off overtime work and instead allow some of the workers to work on their rest days and holidays, or to stagger the rest days. But management insisted the overtime work was necessary to avoid irreparable losses through spoilage of the fruits which must be immediately canned before the workers leave the premises. Finally, all employees refused to work overtime and left the plant after working for 8 hours during the day. They reported for the regular work schedule the following morning. Did the concerted refusal to render overtime work amount to a strike? Explain fully your answer. SUGGESTED ANSWER: The concerted refusal to render overtime work amounted to a strike. A strike is defined by the Labor Code (ART 112 [1]) as a temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. In the case, there was concerted action as a result of a labor dispute. But was there stoppage of work considering that the employees were being asked to work overtime? There was a stoppage of work because the employer was asking the employees to work overtime in a situation where the employees may be legally required under the Labor Code (ART 89) to perform overtime work. The overtime work was necessary to prevent loss or damage to perishable goods, which is one of those situations that could be the basis of emergency overtime work.

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Another Suggested Answer: No, the concerted refusal to render overtime work

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Question No. 1984

STRIKE

Finding the strike declared by Union X to be illegal the labor arbiter ordered the union to stop the strike and prohibited its officers and members from engaging in any form of picketing. Is the order valid? Why? ANSWER: A. FURNISHED BY OFFICE OF JUSTICE PLANA The blanket provision against any form of picketing is null and void. Peaceful picketing is part of the freedom of speech guaranteed by the Constitution, and therefore cannot be prohibited. B. COMMENTS AND SUGGESTED ANSWER The answer furnished by the Office of Justice Plana focuses on this part of the question: May the union officers and members be prohibited from engaging in any form of picketing? Thus, the above answer is correct. But the question may also focus on this issue: Could a labor arbiter enjoin a strike? Thus, the answer below should also be considered: The Order of the Labor Arbiter is not valid because it is the NLRC which has the power to issue the order issued by the Labor Arbiter. This is implied from ART 219 [e], LC, which provides that the Commission has the power and authority to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts in any labor dispute x x x. Provided, that no temporary injunction against the commission of acts prohibited under Article 256 of this Code shall be issued by the Commission, except after due notice and hearing and in accordance with its rules x x x. Question No. 2 STRIKE 1984

The Ministry of Labor and Employment certified the strike in a bagoong company to the NLRC for compulsory arbitration and ordered the striking employees to report back to work. The union refused to obey, prompting the company to file a complaint for illegal strike against defiant officers and members of the union.

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If you were the counsel for the union officers and members, what would your defense or defenses be? ANSWER: A. FURNISHED BY OFFICE OF JUSTICE PLANA As counsel for the union, I will question the validity of the certification issued by the Minister of Labor. A labor dispute in a bagoong company will not adversely affect the national interest. There is therefore no factual or legal basis for the Minister of Labor to exercise his extraordinary powers to enjoin a strike and certify disputes for compulsory arbitration under Article 264 [g] of the Labor Code. While such grant of authority has been upheld as constitutional, the discretion is not absolute and there can be an unconstitutional application of a constitutional authority. B. COMMENTS AND SUGGESTED ANSWER The above answer is correct. The answer may also be expressed in this way: In defense of the union officers and members, I will contend that when the Minister of Labor certified the strike in a bagoong company to the NLRC, such certification was not in accordance with ART 164 [g], LC, which provides that the Minister of Labor shall assume jurisdiction over a labor dispute and decide it or certify the same to the Commission for compulsory arbitration only when in his opinion there exists a labor dispute causing or likely to cause strikes or lockouts adversely affecting the national interest such as may occur in but not limited to public utilities, companies engaged in the generation and distribution of energy, banks, hospitals and export-oriented industries, including those within expert processing zones. The strike in a bagoong company cannot be considered as adversely affecting the national interest. Question No. 13 STRIKE 1982

The PLDT Employees Association filed a notice of strike due to a deadlock in collective bargaining. During the cooling off period, the union struck. Upon petition by PLDT, the Minister of Labor certified the case for compulsory arbitration because the dispute involved public interest and ordered the striking employees to return to work. The strikers refused to comply, invoking as ground therefore the constitutional guarantee against involuntary servitude, i.e., that they could not be forced to work against their will. Is the position of the strikers tenable? Reason. What sanction, if any, may be enforced on the strikers? Explain. ANSWER: The position of the strikers is not tenable. The return-to-work order of the Minister of Labor does not mean that the strikers could be forced to work against their will. If they do not go to work, it does not mean that the police could go to the homes of the strikers or could pick up the

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strikers from the picket lines and force them to work against their will. authorize the police to do the above acts.

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The law does not

However, if the strikers do not comply with a valid return to work order of the Minister of Labor, they are guilty of conducting an illegal strike, and the Labor Code provides that 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. Question No. III STRIKES 1978

Are you in favor of the prohibition against strikes? Justify your answer. ANSWER: Presidential Decree No. 823, as amended, seeks to encourage trade unionism and free collective bargaining within the frameworks of arbitration, voluntary or mandatory. Additionally, it prohibits strikes in vital industries to ensure the stability of labor management relations and protect the gains of the New Society. In non-vital industries any legitimate labor union may validly strike but only on grounds of unresolved economic issues in collective bargaining (presidential Decree 823, as amended). This distinction between vital and no-vital industries becomes so important as to justify the prohibition against strikes. The right to strike is an expression of freedom of speech. It is one of the basic freedoms guaranteed by the Constitution. However, the demands of national security and development have been allowed to limit the exercise of the right. The crippling effects of an expanded labor conflict on the national economy and to society are historical lessons. Economic crises only further exacerbate national difficulties. The concept of social responsibility, largely assumed. But as labor conflicts have in our times spread out with its attendant prejudice to the economy, there has increasingly developed a demand for the components of our free enterprise economy to show not only by word but by deeds as well, a further appreciation of their social responsibilities. The distinction between vital and non-vital industries rests on the recognition that in vital industries the far-racing consequences of an extended strike have more serious effects on national security and welfare, and would, to be sure, derail and disrupt the overall developmental program of government, and certainly discourage investment and expansion efforts in industry and commerce. Question No. VIII-d A ANSWER: T STRIKE 1977

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Question No. A ANSWER: T

STRIKE

1976

Question No. A ANSWER: T

VI

STRIKE

1976