Professional Documents
Culture Documents
GRIEVANCES
- a grievance is any question by either the employer or the union regarding the interpretation or
application of the CBA or company personnel policies or any claim by either party that the other
party is violating any provision of the CBA or company personnel policies
- a CBA will not be registered with the DOLE if it does not contain a provision on grievance procedure
or machinery which is a must provision required of all CBAs. In case a CBA is submitted without
such provision, the registrar should advise the parties to include a grievance procedure / machinery
therein before it is considered duly registered
2. By-passing the Grievance Machinery: U.L.P.
- all grievances are compulsorily subject to the grievance machinery. Such requirement being an
extension of the parties duty to bargain, the violation of which amounts to unfair labor practice
(ULP)
- An aggrieved employee must exhaust all the remedies (grievance procedure/machinery) available
to him under the bargaining contract before he can resort to the courts for the enforcement of his
individual rights under such contract
- A strike is illegal if such was carried out notwithstanding the provisions of the existing CBA which
provides for a specific procedure in dealing with grievances of union members or simply stated,
when such procedure was not availed of before the strike was declared
- Procedure for dismissal of employees in the CBA must be observed even if such dismissal is with
cause. Absent such adherence, the purported dismissal for just cause is invalid, particularly when
the company acted post haste and without affording the employee the time and opportunity to
present his side
A grievance may be brought directly to voluntary arbitration without passing through the grievance
machinery, especially when:
o the grievance machinery has been proven to be ineffective in the past, or
o when the parties inadvertently failed to include a grievance machinery provision in
their CBA
3. Waiver of Grievance Machinery Procedure and Submission to VA
- By submission agreement, the EE and ER agreed to submit the case to the VA. VA resolved in favor
of the EE. On the appeal, it was reversed by the CA because it considered the waiver of EE. CA
considered it as relinquishment of EEs right. VA, then, has no jurisdiction
- Ruling: There was no relinquishment of right. Voluntary arbitration as a mode of settling dispute was
not forced upon respondents.
4. Structure and Procedure
- In the absence of applicable provision in CBA:
o A grievance committee shall be created within 10 days.
- GR: Compose of at least 2 representatives from each members of bargaining unit designated by the
union and ER.
- EXC: unless agreed by the parties
5. Procedure in handling Grievances
- In the absence of applicable provision in CBA and company practice:
o Present grievance or complain to shop steward
o Shop steward will verify if the complaint/grievance is valid
o If valid, bring the complain to immediate supervisor of the complainant
o They will exert efforts to settle at their level
o If no settlement is reached, it will be referred to grievance committee
o The GC has 10 days to decide
- Note: applies to interpretation or implementation of CBA, or order from appropriate authority of in
the establishment
6. Voluntary Arbitration
- If the grievance is remained unresolved, EITHER PARTY may serve notice upon the other of its
decision to submit decision to voluntary arbitration.
- Notice shall state the issue or issues to be arbitrated
- Copy of such shall be furnished to:
o Board or
o VA or
o Panel of VAs
o
-
Labor Arbitration the reference of labor dispute to the third person for determination on basis of
evidence and arguments presented by the parties who are bound to accept the decision.
Voluntary Arbitration a contractual proceeding whereby the parties to any dispute or controversy, in
order to achieve speedy and inexpensive settlement, select their own judge of their own choice and by
consent submit their controversy to him for determination.
Compulsory arbitration is the process of settlement of labor dispute by a government agency which
has the power to investigate and make an award binding upon the parties.
7.
o
o
8.
o
o
o
9.
Power in General
Under the NCMB guidelines:
To require any person to attend hearing
To subpoena witness and receive documents
To take whatever action to resolve the issue subject to dispute (except ipaduel ang parties hakhak)
Adjudicatory power
Personally hold hearings
Receive evidence
To take whatever action to resolve the issue subject to dispute
Must initiative in reconciling apparent contradictions
Compulsory power
To require any person to attend hearing
To subpoena witness and receive documents
Failure of VA to render judgement within prescribe days is a sufficient ground to discipline the VA upon
filing of complaint to NCMB of a party.
In case the sanction of erring VA is delisting, it shall be unlawful for VA to refuse or fail to turn-over to
NCMB the records of the case within 10 days.
Notes:
Guidelines should be liberally construed.
While the intendment of law is to favor the EE, it no way implies ER is not entitled to due process. ER right
to be heard is a matter of great concern. (Unicraft Industries International Corporation vs CA, GR 134903)
Regular courts
Informal
Formal
The Commission, its Regional Offices and the Regional Directors of the Department of Labor
and Employment shall not entertain disputes, grievances or matters under the exclusive and
original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall
immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration
provided in the Collective Bargaining Agreement.
The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties,
shall also hear and decide all other labor disputes including unfair labor practices and
bargaining deadlocks.
Arbitrable disputes
2 kinds of disputes:
Contract-negotiation disputes
Disputes as to the terms of a collective bargaining
Example: when impasse or bargaining deadlock has risen
AKA arbitration of interest
Jurisdiction of LA and VA
Contextual and wholistic analysis of LA and VA by Justice Purisima in San Jose vs. NLRC:
Includes money claims in one form or another
LAs original and exclusive Article 224; VA Article 273
3. The original and exclusive jurisdiction of Labor arbiters is qualified by an exception as indicate3d in the
introductory sentence of Article 224 (a). The phrase Except as otherwise provided under this Code refers
to the following exceptions:
Article 273
The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also
hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.
4. A. The original and exclusive jurisdiction of Voluntary Arbitrator or Panel of Voluntary Arbitrators is
limited only to unresolved grievances arising from the interpretation or implementation of the CBA and
those arising from the interpretation or enforcement of company personnel policies Accordingly,
violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor
practice and shall be resolved as grievances under the CBA
Voluntary arbitrators or Panel of Voluntary Arbitrators, however, can exercise jurisdiction over any and all
disputes between an employer and a union and/or individual worker as provided for in Art. 274.
It must be emphasized that the jurisdiction of the VA or Panel of Vas under Article 262 must be
voluntarily conferred by both labor and management. The labor disputes referred to in the same
Article 274 can include any or all of those disputes mentioned in Article 224 which ordinarily are
under LAs original and exclusive jurisdiction.
A unions petition to enjoin implementation of the companys drug policy is a labor dispute beyond
RTCs jurisdiction. It is a personnel policy dispute within the jurisdiction of a VA.
3.2a From VA to CA: Mode of Appeal is Petition for Review under Rule 43, not Special Civil
Action of Certiorari under Rule 65
The mode of appeal from VA to the CA is therefore a petition for review under Rule 43. It is not rule
65 because a petition for certiorari under that rule lies only where there is no appeal and no plain,
speedy and adequate remedy in the ordinary course of law.
Nonetheless, the Court cited situations when petition for certiorari despite availability of appeal,
may be entertained, such as:
The initial collective-bargaining practices are influenced in varying degrees by the preunion history of the
particular industrial concern and by the fact that genuine union-management relations are initiated by the
union.
Collective bargaining is an instrument for workers and owners, through unions and management, to solve
their problems directly without recourse to the government.
Collective bargaining is the extension of the basic principles and practices of democracy into industry.
A prime objective of collective bargaining is the redistribution of the proceeds of production.
Workers acquire a qualified property interest in their jobs under a collective-bargaining contract.
The successful administration of a contract requires the maintenance of an effective system of
communications for both management and the union, in bringing complaints from the bottom up and
relaying decisions and policies from the top down.
Participation of workers, union representatives, and management at all levels is a prerequisite to the
successful administration of a collective-bargaining contract.
The peaceful administration of a contract requires the confidence of workers that they will get justice
through the collective-bargaining machinery in the settlement of their grievance.
The natural outgrowth of local-plant and individual company collective bargaining is bargaining between
district or industry-wide organizations of management and union.
Grievance Handling
Grievance should be settled speedily and as near their point of origin as possible.
Grievances should be settled on their merits with no logrolling permitted.
Salesmen and purchasing agents usually possess a more natural ability for handling managements
relations with unions than do operating officials.
Participation
Managements assumption of sole responsibility for productive efficiency actually prevents the attainment
of maximum output.
The participation of organized workers in management provides an outlet for their creative desires, as it is
essentially a creative and cooperative undertaking.
Union management cooperation to reduce cost, eliminate wastes, increase productive efficiency, and
improve quality represents a practical program that provides workers with effective direct participation in
the creative phases of management.
Union should participate with management in distributing the proceeds of each firms production between
its owners and workers.
The greater the participation of workers through their unions in setting piecework and tonnage rates, in
making time and motion studies, in determining work standards and job evaluations, the greater are the
earnings and output.
Employee Security and Sharing
Each group of workers strives for the kind of seniority rules which it thinks will provide the greatest amount
of job protection.
Strike or lock out may be caused either by collective bargaining deadlock or an unfair labor practice.
Violations of collective bargaining agreement except flagrant and/or malicious refusal to comply with its
economic, shall not be considered unfair labor practice and not be strike able.
No strike or lickout 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 borad. Neither will a strike be declared after assumption of jurisdiction by the
secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during
the pendency of cases involving the same grounds for strike or lockout.
In the course of collective bargaining, a lockout is proper only when the following requisites are met
notice of intention to declare a strike/lockout has been filed with the department of labor.
At least thirty days has elapsed since the filing of the notice before lockout is declared
An impasse has resulted in the negotiations;
The strike/lockout is not discriminatory
*** The notice or cooling off period is 15 days for unfair labor practices (U.L.P) strike/lockout and 30days
for bargaining strike/lockout
***Cooling off period will not apply if it involves union busting.
In defending again an unfair labor practice charge a raising out of such a use of a lockout, an employer
should show that he was merely protecting his bargaining position and not acting out of hostility to the
process of collective bargaining or by way of discriminating against union members.
Lockouts have been held unlawful where undertaken for the following purposes:
Lockout is unlawful where it is declared in order to defeat organizational and bargaining rights of
employees.
Where there is no dispute or the dispute has nothing to do with he terms and conditions of employment in
the establishment, the stoppage of work by its employees has no basis in labor law and the employees
who engage in the work stoppage actually commit an illegal strike and take the risk and consequences of
such an illegal act.
Please see page 560. Case: national union of workers in hotel, etc. vs. NLRC and peninsula hotel, G.R. no.
125561, march 6, 1998
Protection of strike:
The right to strike is given the following protection:
It is generally not subject to labor injunction or restraining order
Employees may not be discriminated against merely because they have exercised the right to strike
The use of strike-breakers is prohibited
Mere participation in a strike does not sever the employment relationship.
Employees who peacefully struck for lawful object were not liable to their employer even though the strike
shut him down, bankrupted him, or put him out of business, and even though it also caused enormous and
irreparable damage to hundreds of thousands of innocent persons not involved in the strike.
Any person who obstructs the free and lawful ingress to and egress from the employers premises or who
obstructs public thoroughfares may be arrested and accordingly charged in court.
The employees status during a strike remains, but the effects of employment are suspended, hence a
striking employee, as a rule, is not entitled to his wage during the strike.
The authoritative Ludwig Teller says that an illegal strike is one which:
Is contrary to a specific prohibition of law
Violates a specific requirement of law
Is declared for an unlawful purpose
Employ unlawful means in the pursuit of its objectives
Is declared in violation of an existing injunction
Is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause
*** see page 568(starting)
Second requisite: Procedural requirements
Filing of notice of strike, observance of cooling-off period, taking of strike vote, and observance of sevenday strike vote report period. It bears stressing that these requirements are mandatory; meaning non
compliance therewith makes the strike illegal.
Notice of strike:
File with the department of labor and employment specifically the regional branch of the national
conciliation and mediation board.
Who file: only a legitimate labor organization can legally hold a strike.
If the reason for the intended strike is U.L.P by the employer, the notice should be filed by the duly
recognized or certified bargaining agent. If the bargaining unit involved has yet no bargaining agent, then
the notice may be filed by even an unrecognized labor union, provided the union is duly registered.
If the reason for the intended strike is bargaining deadlock, only the bargaining union ha the legal right to
file a notice of strike.
Strike vote:
Secret balloting
In every case, the union or the employer shall furnish the regional branch of the board the notice of
meetings referred to at least twenty-four 24 hours before such meetings as well as the result of the voting
at least seven (7) days before the intended strike or lockout, subject to the cooling-off period. The decision
to declare a strike requires the secret-ballot approval of majority of the total union membership in the
bargaining unit concerned. The needed vote is majority of the total union membership, not just majority of
the members present in the meeting of referenda. And it is majority of the union membership, not of the
bargaining unit. The members of the minority union may or may not be called to strike vote meeting.
A strike held within seven-day waiting period is plainly illegal. A strike staged without the submission of the
result of the strike-vote is illegal.
The failure of a union to comply with the requirement of the giving of notice to the NCMB at least 24 hours
prior to the holding of a strike vote meeting will render the subsequent strike staged by the union illegal.
The law does not specify, but NCMBs Primer on strike, picketing and lockout states that if the strike vote is
filed within the cooling-off period, the 7-day requirement shall be counted from the day following the
expiration of the cooling-off period. In effect, the seven days. Are added to the 15-day or 30-day cooling off
period.
the submission of the report gives assurance that a strike vote has been taken and that, if the report
concerning it is false, the majority of the members can take appropriate remedy before it is too late.
If the union is being busted, there is no need to observe the cooling off period. But must the union still file
a notice of strike, and take a strike vote, and submit the strike vote report? It is submitted that those
requirements are still mandatory even in the face of union busting.
What is being excused in case of union busting is only the observance of the 15-day cooling period.
Equally uncompromising is the NCMB primer on strike, Picketing, and lockout which partly states: in case
of ULP due to union busting, the time requirement for filing of the notice of strike shall be dispensed with
but the strike vote requirement being mandatory in character, shall in every case be complied with.
Indeed, in case of alleged union busting, the three remaining requirements- notice, strike vote, and 7day repot period-cannot be dispensed with; in fact, there is greater need for their observance.
- The main purpose of the parties in entering into a CBA is to adopt a procedure in the settlement of their
disputes so that strikes may be prevented. This procedure must be followed in its entirety if it is to achieve
its objectives.
- Even if the management has failed to do it duty in connection with the formation of the grievance
committee stipulated in the agreement, such failure does not give to labor the right to declare a strike
outright, for its duty under the agreement is to exhaust all available means within its reach before
resorting to force. If labor chooses not to deal with the management either because of distrust or
prejudice, the other way left to achieve a peaceful settlement on grievance is to resort to the court of
Industrial relations. Strikes held in violation of the terms contained in a collective bargaining agreement
are illegal, especially when they provide for conclusive arbitration clauses. These agreements must be
strictly adheres to and respected if their end is to be achieved.
- A strike or walkout on the basis of grievance, which have not been submitted to the grievance committee,
as stipulated in the agreement of the parties sanctioned by the CIR, is premature and illegal.
Case:
Since the CBA contained provisions on grievance and arbitration, obviously the union violated such
provisions when it filed a notice of strike without availing of the remedies therein. Such infringement of the
grievance and arbitration provisions constitutes further justification for the issuance of an injunction
against the strike. As held by the court in the case of IPP and PWU vs. ISRC: strikes held in violation of the
terms contained in collection bargaining agreement are illegal when they provide for conclusive arbitration
clauses. These agreement must be strictly adhere to and respected if their ends have to be achieved.
***San Miguel corporation vs. NLRC and IBM page 585
Initiated over bargaining demands but during the course of the strike, the employer commits unfair labor
practices.
The board applied the usual rule that strikes who are permanently replaced during the economic phase of
the strike are not entitled to immediate reinstatement, while strikers replace d after the date of conversion
are.
Legality of Strike not dependent upon the ability of management to grant demands.
-The ability of the company to grant said demands is one thing, and the right of the laborers to make said
demands is another thing.
Objectively, when the strike is declared in protest of unfair labor practice which is found to have been
actually committed; and
Subjectively, when a strike is declared in protest of what the union believed to be unfair labor practices
committed by management, and the circumstances warranted such belief in good faith, although found
subsequently as not committed.
It is not even required that there be in fact an unfair labor practice committed by the employer. It suffices if
such a belief in good faith is entertained by labor as the inducing factor for staging a strike.
If the management performed acts, which, under the circumstances, the strikers believed were unfair labor
practices on the part of the management, although they were not, the court ruled that the strike cannot be
held illegal. However, the unions belief needs some rational basis.
Good-faith strike Doctrine applied even to a strike without prior Notice and despite a Nostrike clause
It suffices, if such belief in good faith is entertained by labor as the inducing factors for staging a strike.
The strike staged by the union in this case cannot be considered a violation of the no-strike clause of the
collective bargaining agreement because it was due to unfair labor practices of the employer. Moreover, a
no-strike clause prohibition in a collective bargaining agreement is applicable only to economic strikes.
***Philippine metal foundries, Inc. vs. court of industrial relations page 597
the reliance is misplaced. Peoples industrial did not rule that the procedural steps can be dispensed with
even if the union believed in good faith that the company was committing an unfair labor practice. While it
is true that Philippine metal held that a strike cannot be declared as illegal for lack of notice , however , it
is important to note that said case was decided in 1979. At this juncture, it must be stressed that with the
enactment of R.A no. 6715 which took effect on march 21 1989, the rule given to the department of labor
are mandatory in nature.
Thus, even if the union acted in good faith in the belief that the company was committing an unfair labor
practice, if no notice of strike and a strike vote were conducted, the said strike is illegal. ***national
federation of labor vs NLRC page 600
Lawful purpose: Strike to compel recognition of and bargaining WITH THE MAJORITY UNION
***Caltex filipino managers and supervisors association vs. CIR page 601
Unlawful purpose: strike for union recognition without HAVING PROVEN MAJORITY STATUS
But where the majority status of union is not in doubt, not in dispute, or is certainly established and,
despite this, the employer still refuses to bargain, then the situation is one of refusal to bargain which is
unfair labor practice act by the employer; in this situation the union, if it strikes, will be staging a valid ULP
strike, assuming that the other requirements are complied with. ***lakas ng manggagawang makabayan
vs. marcelo enterprise page 602
***association of independent unions in the Philippines case page 602
The unions violation of the Hotels grooming standards was clearly a deliberate and concerted action to
undermine the authority of and to embarrass the hotel and was, therefore, not a protected action.
Obviously, the hotel does not need to advertise its labor problems with its clients.
Thus, we hold that the unions concerted violation of the Hotels grooming standards which resulted in the
temporary cessation and disruption of the hotels operation is an unprotected act and should be
considered as an illegal strike. ***National union of workers in the hotel restaurant and allied industries
page606
Whoever commits these acts- union officers, or MEMBERS, EMPLOYEES or non-employees-is answerable for
the acts.
- Their objective , as clearly observed by the lower court , was not to inflict loss of freedom to the
complainants but to weaken management resistance so that it would give in to their demands. While no
doubt to be deplored, such conduct cannot be made a basis for a finding of probable cause that the crime
penalized by the codal provision in question was committed. ***People vs. Barba page 617
Blockage or obstruction
Obstructions are beyond the valid exercise of the right to strike because they deprive the owner of the
company premises of its right to use them for unlawful 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
When there is a labor dispute causing or likely to cause a strike affecting national interest, 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.
Such assumption or certification has 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 under the
same terms and conditions prevailing before the strike or lockout. This is an example of automatic
injunction. 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.
The issuance of injunction in national interest cases is an exception to art.254, which, in general, forbids
labor injunctions.
Personal notes:
Examples of industries vested with national interest;
Educational institutions
Inimical to national economy
Banks
Effects of Defiance
Non-compliance with the certification order of the secretary of labor and employment shall be considered
as an illegal act committed in the course of the strike or lockout, and shall authorize the commission to
enforce the same under pain of immediate disciplinary action, including dismissal or loss of employment
status or payment by the lock-out employer of backwages, damages and/or other affirmative relief, even
criminal prosecution against the liable parties
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 certification order is issued. They cannot, for instance, ignore return to work orders,
citing unfair labor practice on the part of the company, to justify their actions.
We also wish to point out that an assumption and/or certificate order of the secretary of labor
automatically results in a return to work of all striking workers, whether or not corresponding order has
been issued by the secretary of labor. Thus the striking workers erred when they continued with their strike
alleging absence of a return to work order.***union of filipino employees case page 625
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
-case:***PNOC dockyard case page 626
Refusal to receive the RTWO (return to work order)
Refusal to receive the AJO ( assumption of jurisdiction order) amounts to defiance of the order, which
defiance makes the continuation of the strike an illegal act, thus subjecting the strikers to loss of
employment statues.
***University of san agustin case page 626 important
The enforcement of a new company policy, requiring the employees to use upt heir earned leaves instead
of accumulating them, without judicial authorization, would indeed constitute a violation of such order for
the maintenance of status quo in relations between the workers and the company.
Where a return to work order is issued, may the employer be compelled to accept back to work
the strikes with pending criminal charges
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.
Actual, Not payroll, readmission
The third sentence of article 277(g) states that the striking or locked out employees shall return to work
and the employer shall readmit them, under the same terms and conditions prevailing before the strike or
lockout. The court interprets this to mean actual, not payroll, readmission to the employees position.
In another case the court recognizes that one of the superseding circumstances that justified payroll
reinstatement is the fact that the subject employees positions were declared confidential in nature by a
panel of voluntary arbitrator.
Neither did the secretarty of labor abuse her discretion when she allowed payrolls reinstatement of the
strikes 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 hotels
guest.
An appeal erroneously presented to the OP does not toll the running of the period to file petition for
certiorari.
14.21 Secretarys Abuse of Discretion, Examples
- imposing a stipulation which even the union did not ask for in a bargaining deadlock over which the SOLE
assumed jurisdiction
- when the SOLE moto proprio changed the maintenance-of-membership clause contained in his earlier
order to a more stringent union shop clause.
- when the SOLE excluded from readmission the employees-strikers whom the ER separated on the ground
of redundancy (see ART 263(g) for justification)
14.22 Withdrawal of Case to Submit to VA
Art 267 (h) allows the parties, at any stage, to withdraw the case from compulsory arbitration and bring it
to voluntary arbitration.
15. Sixth Factor in Legality of Strike: AGREEMENT OF THE PARTIES
GOP-CCP Workers Union vs CIR ruling upheld in Liberal Labor Union vs Phil. Can Company:
strikes held in violation of the terms contained in a CBA are illegal, especially when they provide
for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their
ends have to be achieved.
Master Iron Labor Union vs NLRC:
A no strike clause in a CBA is applicable only to economic strikes. Thus, if the strike is founded on
an unfair labor practice of the employer, a strike declared by the union cannot be considered a violation of
the no-strike clause.
An economic strike is defined as one which is to force wage or other concessions from the employer
which he is not required by law to grant.
15.2 No Strike Clause Binding; Primacy of Voluntary Arbitration Agreement
A no strike-no lockout stipulation generally deserves respect by the parties to the CBA and by the labor
authorities. Such stipulation applies even to a deadlock in renegotiating the economic provisions of the
CBA. Where the CBA stipulations that disputes between the parties should be resolve through a grievance
machinery, including voluntary arbitration, a notice of strike filed by the union violates the agreement. The
NCMB should consider such notice as not duly filed and then direct the union to avail itself of the grievance
machinery and voluntary arbitration. A similar posture should be taken by the SOLE instead of assuming
jurisdiction over the dispute.
Primacy of Voluntary Arbitration over Assumption of Jurisdiction
SOLEs jurisdiction over labor disputes must include and extend to all questions and controversies arising
therefrom, including cases in which the labor arbiter has exclusive jurisdiction. However, the present case
(University of San Agustin EEs Union-FFW vs CA and University of San Agustin) is an exception to that
holding. For, the NCMBs interaction on the universitys motion to refer the dispute to VA veritably forced
the hand of the University to seek and accordingly submit to the jurisdiction of the SOLE. Considering that
the CBA contained no strike, no lockout and grievance machinery and VA clauses, the NCMB under its own
procedure should have declared as not duly filed the Unions Notice of Strike and should have referred the
labor dispute to VA.
15.3 No-Strike Clause Not Binding Upon Newly Certified Bargaining Agent
In case of lockout, the Department of Labor and Employment shall also conduct a referendum
by secret balloting on the reduced offer of the union on or before the 30 th day of the lockout.
When at least a majority of the board of directors or trustee or the partners holding the
controlling interest in the case of a partnership vote to accept the reduced offer, the workers
shall immediately return to work and the employer shall thereupon readmit them upon the
signing of the agreement.
Improved-offer balloting
Improved offer Balloting is a device to end the work stoppage. An improved offer by the
employer, or a reduced demand by the union, will serve as basis for a secret balloting that will not reveal
who retreated from the fight.
Picketing without strike it is established that the constitutional right of free speech is infringed by a
states judicial policy forbidding resort to peaceful picketing where there is no immediate employeremployee relationship, as in the case of organizational or recognitional picketing. Hence, a state cannot
outlaw picketing merely because there is no strike in progress.
Moving picket
The public easement of way and passage permits the pickets to parade in front of or near the picketed
establishment. They have the right of passage but this right does not create the additional rights of
squatting or assembly. Any such squatting or assembly would exceed the scope of the public easement
and would constitute and enjoinable trespass.
Obstruction
Picketing conducted as to amount to a nuisance is unlawful. Picketing may be nuisance if it constitutes an
obstruction to the free use of property. Permissible activities on the part of picketers do not include
obstruction of access of customers.
Picketing of Home
The picketing of a private home in a residential district is generally held improper, even when the pickets
are domestic servants on the ground that a home is not an industrial or a business enterprise, but rather
an institution used and maintained as a place of abode.
Limitation
Picketing as a concerted activity is subject to the same limitation as strike, particularly as to lawful purpose
and lawful means.
Untruthful Picketing
Picketing may carry placards and banners truthfully advising the public concerning the dispute, but the
untruthful picketing is unlawful picketing and is enjoinable even though its purpose is valid. Picketing is not
peaceful where there is shouting or the use of loudspeakers in front of the picketed place of business.
Permissible activities on the part of picketers do not include misrepresentation. This is in accord with the
general rule that the means employed in aid of a strike must be free from falsehood or defamation.
Publicity
Striking employee have a right to acquaint the public with the fact of the existence of a strike setting forth
their claims in a controversy over terms and conditions of employment, by sign, handbill, or newspaper
advertisement as a legitimate means of economic coercion.
beneficial business intercourse. The essential idea of boycotting is a confederation, generally secret, of
many persons whose intent is to injure another by preventing any and all persons from doing business with
him, through fear of incurring the displeasure, persecution, and vengeance of the conspirators.
LAWFULNESS OF THE BOYCOTT
LEGITIMATE- boycott by labor for the purpose of the maintenance or advancement of wages, improvement
of conditions of labor, shortening of periods of labor, engagements of union employees, and reinstatement.
It should be free of violence or malevolence.
ILLEGAL- purpose is to require an employer to coerce his employees to pay their back dues to the union or
discharge them, or to compel the payment by an employee of a fine, or to compel the employee to refrain
from working, to compel to sign contract, or to compel an employer to refrain from issuing new process or
machinery.
The striking employees may appeal for sympathetic aid by a request to withhold patronage or make like
proper measures to induce third persons to withhold their patronage from the employer in order to compel
him to recognize the demands of the employees.
SLOWDOWN
It is a method by which ones employees, without seeking complete stoppage of work, retard production
and distribution in an effort to compel compliance by the employer with the labor demands made upon
him. It may or may not be accompanied by strike. It may be gesture, preliminary to strike, which is
calculated to serve as an admonition or warning to the offending employer; or, alternatively, it may be a
movement in prosecution of a strike which has been declared without a walk-out. In either event, the
movement can be executed only by the employees themselves. In this respect does the slowdown differ
from picketing, secondary boycott, etc. in the latter cases, the project may be executed by employees and
nonemployees alike, in slowdown, it can be executed only by such of the offending employers personnel.
In one case, slowdown is strike on the installment plan, a willful reduction of the rate of work by concerted
action of workers to restrict the output of the employer, in relation to a concerted action of workers to
restrict the output of employer, in relation to a labor dispute; as an activity by which workers, without a
compete stoppage of work, retard production or their performance of duties and functions to compel
management to grant their demands.
CONSEQUENCES OF CONCERTED ACTIONS
STRIKERs RETENTION OF EMPLOYMENT- strikers remain as employees while they are on strike. The
effects of employment, generally, are merely suspended during that time- the workers do not work and do
not get paid. Even if strike is declared as illegal, the strike need not have been attended with such a
drastic consequence as termination of employment relationship. This is because of the security of tenure
provision of the Constitution.
Civil and criminal law are not suspended during a strike, hence anyone who commits an illegal act,
whether a union officer or a member, is civilly or criminally liable no matter whether the strike is legal or
not. Furthermore, the commission of illegal acts, including coercion, grave threats, intimidation is reason
enough to terminate the employment of such striker-employee.
The individual strikers committing the illegal acts must be identified. Simply referring to strikers,
AIU strikers, or complainants in this case is not enough to justify their dismissal. But proof beyond
reasonable doubt is not required; substantial evidence is enough.
SUSPENSION INSTEAD OF DISMISSAL
The penalty imposable does not always have to be dismissal; it may be scaled down to suspension.
Suspension was upheld by the court in a case where both parties, ER and UNION, contributed to the
volatile atmosphere emerging despite the SOLEs status quo order. Both sides were at fault or in pari
delicto.
UNION OFFICERS OR LEADERS?
The codal provision mentions OFFICERS, not LEADERS. There can be leaders who are not
officers.
SHOP STEWARDS ARE UNION OFFICERS
Thus, like the officers and directors of petitioner union who joined the strike, petitioners-shop
stewards also deserve the penalty of dismissal from their employment.
UNION MEMBERS
A union member, who participated in committing illegal acts during a strike, whether legal or illegal,
may also lose his employment status.
WHO DECLARES LOSS OF EMPLOYMENT STATUS?
Gold City Port Service, Inc vs NLRC- the law, in using the word may, grants the employer the
option of declaring a union officer who participated in an illegal strike as having lost his employment.
DECLARATION OF ILLEGALITY OF STRIKE NOT A PREREQUISITE TO DISMISSAL OF ILLEGAL
STRIKERS
Filing a petition to declare a strike illegal is not a prerequisite for the employer to terminate the
employment of employees, whether union officers or members, who commit illegal acts in the course of
the strike. A prior petition to declare the strike illegal is not necessary.
EXCEPTION: PENDING CASE AT THE NLRC
The issues relating to the strike and lockout were already submitted before the NLRC through
corresponding complaints filed by petitioner itself and private respondents. By filing a formal complaint for
illegal strike, it behooved petitioner to desist from undertaking its own investigation on the same matter,
concluding upon the illegality of the union activity and dismissing outright the union officers involved.
EMLOYERS OBSERVANCE OF DUE PROCESS
An employers declaration that a striker has lost his employment status is, technically, not
dismissal although it amounts to the same thing. Dismissing an employee is an act of the employer. But an
employer declaring that an employee has lost his employment is merely confirming the effect of an
(illegal) act initiated by the employee himself. It is as if the employee brought about his own dismissal, and
the employer is merely confirming it. But due process- a valid cause and a valid procedure- must be
observed. In the PHIMCO case, the employer directed the strikers to explain within 24 hours why they
should not be dismissed for committing illegal acts during strike. Three days later, they were informed of
their dismissal. This procedure says the court, is not sufficient compliance with the due process
requirement which applies to every case of employment termination. EE are dismissed but ER has to pay
damages.
A strike may be justified by belief in good faith that the employer was committing unfair labor practice
(ULP) at the time the strikers went on strike.
In this case, Union invoked that they believed in good faith that there was ULP which was affirmed by the
NLRC. Supreme Court held there was no good faith but merely attended with plain arrogance, pride and
cynicism of certain workers because rearrangement of seats cant justify a four-month long strike.
Forfeiture of Reinstatement
Strikers who fail to report for work when one had the opportunity to do so waived thereby his right to
reinstatement. Because of the apparent lack of interest of the strikers concerned as shown by their failure
to report to work without justifiable reason with the petitioners (employers) therein, we are constrained to
declare them to have forfeited their right to reinstatement.
The mere fact that the striking employee found an employment elsewhere is not necessarily a bar to their
reinstatement.
Reinstatement may render the question of illegality of strike as moot. Where the ER voluntarily
agreed to reinstate the strikers, such agreement on the part of the employer constitutes a waiver of the
defence that the strike is illegal.
Discrimination
To constitute as a ULP, the discrimination by the employer must be in regard to the hire or tenure of
employment or any term or condition of employment to encourage or discourage membership in any labor
organization.
Backwages in Strike
General Rule:
No backwages for strikers on the principle that a fair days wage for a fair days labor. Also base on the
ground that strike is a voluntary and deliberate cessation of work on the part of the workers to
bargain on their demands, the ER should not bear strikers loss of income.
Applies to strike when strike is used as an economic weapon (i.e. bargain for across-the-board wage
increase, additional sick leave with pay, etc.)
For purposes of backwages in strike on the ground of ULP, there is a need to classify ULP into two
classifications, 1.) Discriminatorily dismissed for union activities, and 2.) voluntarily went on strike even if
it is in protest of an ULP.
For the second classification, the stoppage of their work was not the direct consequence of the
companies ULP. Furthermore, the stoppage of work was made voluntarily, hence, there is no backwages
due.
In illegal strikes, it follows the GR rule on backwages. EEs that are not considered to have lost their
employment status will be reinstated but without backwages.
Replacements should not be a bar for reinstatement of strikers in their original positions.
Replacement EEs are deemed to have accepted employment with the knowledge that they are hired as
replacements and their employment is subject to the consequences of the labor dispute between ER and
the strikers.
>> Even when a legitimate labor org. could no longer meet the 20% req. after its registration,
it does NOT ipso facto, lose its status as such until after due hearing by the BLR.
LIABILITY OF MEMBERS
MEMBERS NOT LIABLE for MERE MEMBERSHIP in the Union for the wrongful acts of his associates without
his KNOWLEDGE or APPROVAL
Members are NOT subj. to Civil Liability for the acts of the Union or its Officers, UNLESS it is shown that
that they personally authorized/ participated in the PARTICULAR acts.
*Note/s: However, Members are liable for damages from UNLAWFUL ACTS which they participated.
DAMAGES
For a Labor Union &/or its officials & members to be held liable, there must be PROOF of ACTUAL
PARTICIPATION in, or AUTHORIZATION or RATIFICATION of, illegal acts.
Illegal Strike = employer is entitled to an award of damages ADEQUATELY proved.
In the Absence of COMPETENT PROOF on the Actual Damages suffered = still entitled to NOMINAL
DAMAGES
*Summary: Union Officers are LIABLE for DAMAGES caused to the business by the ILLEGAL STRIKE. The
Business Owner may recover those damages if he is able to prove them. In addition, the Officers will Lose
their Jobs.
reasons of occupation, organizational structure or insufficient incomes are not normally covered by major
labor organizations or federations.
ART 282 [268] ASSISTANCE BY THE INSTITUTE OF LABOR & MANPOWER STUDIES
The Institute of Labor & Manpower Studies shall render technical & other forms of assistance to labor
organizations & employer organizations in the field of labor education, esp. pertaining to collective
bargaining, arbitration, labor standards and the Labor Code of the Phils. In general.
Gen. Rule: ALL Aliens, natural or juridical as well as Foreign org are STRICTLY PROHIBITED from engaging
DIRECTLY or INDIRECTLY in ALL forms of TRADE UNION activities
Excp: Aliens working in the country with VALID PERMITS issued by DOLE = may exercise right to selforganization & join/ assist labor org. of their own choosing for purposes of Collective Bargaining.
*Note/s: 1. Prohibition shall equally apply to Foreign Donations, grants & other forms of assistance. 2.The
Sec. of Labor shall promulgate rules & regulations to regulate & control the giving & receiving of such
donations. 3. Applicable to Farm Tenants & Workers, but instead of Sec of Labor, the Sec. of Agrarian
Reform shall exercise the power & resp. of regulation.
Requirements: Upon filing of a COMPLAINT UNDER OATH & duly supported by the WRITTEN CONSENT
OF 20% OF THE TOTAL MEMBERSHIP OF THE LABOR ORGANIZATION CONCERNED.
Purpose:
To determine compliance/ non-compliance with the law
To prosecute any violations of the laws & of the unions constitution and by laws.
Limitation/s:
That such INQUIRY/ EXAMINATION shall NOT be CONDUCTED during the 60 day FREEDOM
PERIOD nor WITHIN 30 DAYS immediately preceding the date of election of union officials.
AUDIT EXAMINER
Shall CONDUCT an INVENTORY of ALL PHYSICAL ASSETS acquired by the Labor Org.
Make report of his findings to the parties involved & the same shall include his findings &
recommendations
*Note/s: The Copy of the Audit report shall be forwarded by the Audit Examiner to the MED-ARBITER or
the BUREAU DIRECTOR WITHIN 10DAYS FROM THE TERMINATION OF THE AUDIT together with
the entire records of the case & ALL documents relative to the conduct of Audit.
*Note/s: Such kind of representation is not ordained, not even by the Constitution. What is provided for,
for the PRIVATE SECTOR is WORKERs PARTICIPATION in POLICY & DECISION-MAKING PROCESSES directly
affecting their rights, benefits, & welfare.
REASON/PURPOSE: Relations between capital & labor are NOT merely contractual. They are so impressed
with public interest that representations from the employer and the employee in decision and policymaking bodies of the govt are necessary. This is also in affirmation of the role of the State as the guardian
of the peoples rights & the constitutional provision on protection to labor.