LABOR RELATIONS SYLLABUS

1. RIGHT TO SELF ORGANIZATION

A. Who may unionize for the purpose of collective bargaining

1. Who cannot form, join, or assist labor organizations
2. E.O. No. 180

B. Bargaining Unit
1. Test to determine the constituency of an appropriate
bargaining unit
2. Voluntary recognition
Requirements
3. Certification Election
In an unorganized establishment
In an organized establishment
Rules prohibiting the filing of petition for
certification election
Requirements for validity of certification election
Protests and other questions arising from conduct
of certification election
4. Run-Off Elections
Requirements
5. Re-Run Election
6. Consent Election
7. Affiliation and disaffiliation of the local union from the
mother union
Substitutionary Doctrine
8. Union dues and special assessments
Requirements for validity
9. Agency Fees
Requisites for Assessment
2. RIGHT TO COLLECTIVE BARGAINING

a. Duty to bargain collectively

Kiok Loy Ruling

b. Mandatory Provisions of the CBA

Grievance Procedure
Voluntary Arbitration
No Strike – No Lockout Clause
Labor Management Council
c. ULP in Collective Bargaining

Bargaining in Bad Faith

Refusal to Bargain
Individual Bargaining
Blue Sky Bargaining
Surface Bargaining
d. Unfair Labor Practice

ULP for Employers

ULP for Labor Organizations
3. RIGHT TO PEACEFUL CONCERTED ACTIVITIES

Forms of concerted activities

Who may declare strike or lockout
Requisites for a valid strike
Requisites for a valid lockout
Requisites for a lawful picketing
Assumption of jurisdiction of the Secretary of Labor or
Certification of the Labor Dispute to the NLRC for Compulsory
Arbitration
Nature of Assumption Order or Certification Order
Effect of Defiance of Assumption or Certification Order
Illegal Strike
 Liability of the Officers of the Union
Liability of Ordinary Workers
Waiver of Illegality of Strike
Injunctions
Requisites for Labor Injunction
“Innocent Bystander Rule”
E. UNFAIR LABOR PRACTICE (ULP)

1. WHEN AN ACT CONSTITUTES ULP.

1. NATURE, ASPECTS

At the outset, it must be clarified that not all unfair acts

constitute ULPs. While an act or decision of an employer or a
union may be unfair, certainly not every unfair act or decision
thereof may constitute ULP as defined and enumerated under the
law.

The act complained of as ULP must have a proximate and causal

connection with any of the following rights:

1. Exercise of the right to self-organization;

2. Exercise of the right to collective bargaining; or

3. Compliance with CBA.

Sans this connection, the unfair acts do not fall within the technical
signification of the term “unfair labor practice.”

2. THE ONLY ULP WHICH MAY OR MAY NOT BE RELATED TO

THE EXERCISE OF THE RIGHT TO SELF-ORGANIZATION AND
COLLECTIVE BARGAINING.

The only ULP which is the exception as it may or may not relate to
the exercise of the right to self- organization and collective
bargaining is the act described under Article 248 [f], i.e., to
dismiss, discharge or otherwise prejudice or discriminate
against an employee for having given or being about to give
testimony under the Labor Code.

3. LABOR CODE PROVISIONS ON ULP.

Under the Labor Code, there are only five (5) provisions related to
ULP, to wit:

1. Article 258 [247] which describes the concept of ULPs

and prescribes the procedure for their prosecution;

2. Article 259 [248] which enumerates the ULPs that may be

committed by employers;

3. Article 260 [249] which enumerates the ULPs that may be

committed by labor organizations;

4. Article 274 [261] which considers violations of the CBA as no

longer ULPs unless the same are gross in character which means
flagrant and/or malicious refusal to comply with the economic
provisions thereof.

5. Article 278(c) [263(c)] which refers to union-busting, a form

of ULP, involving the dismissal from employment of union officers
duly elected in accordance with the union constitution and by-laws,
where the existence of the union is threatened thereby.

4. PARTIES WHO/WHICH MAY COMMIT ULP.

A ULP may be committed by an employer or by a labor organization.
Article 259 [248] describes the ULPs that may be committed by an
employer; while Article 260 [249] enumerates those which may be
committed by a labor organization.

On the part of the employer, only the officers and agents of

corporations, associations or partnerships who have actually
participated in or authorized or ratified ULPs are criminally liable.

On the part of the union, only the officers, members of governing

boards, representatives or agents or members of labor associations
or organizations who have actually participated in or authorized or
ratified the ULPs are criminally liable.

5. ELEMENTS OF ULP.

1. There should exist an employer-employee relationship

between the offended party and the offender;

and

2. The act complained of must be expressly mentioned and

defined in the Labor Code as an unfair labor practice.

Absent one of the elements aforementioned will not make the act an
unfair labor practice.

6. ASPECTS OF ULP.

Under Article 258 [247], a ULP has two (2) aspects, namely:
1. Civil aspect; and

2. Criminal aspect.

The civil aspect of an unfair labor practice includes claims for

actual, moral and exemplary damages, attorney’s fees and other
affirmative reliefs. Generally, these civil claims should be asserted
in the labor case before the Labor Arbiters who have original and
exclusive jurisdiction over unfair labor practices. The criminal
aspect, on the other hand, can only be asserted before the regular
court.

2. ULP BY EMPLOYERS

I. INTERFERENCE WITH, RESTRAINT OR COERCION OF

EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO SELF-
ORGANIZATION

1. TEST OF INTERFERENCE, RESTRAINT OR COERCION.

The terms “interfere,” “restrain” and “coerce” are very broad that
any act of management that may reasonably tend to have an
influence or effect on the exercise by the employees of their right to
self-organize may fall within their meaning and coverage. According
to the Supreme Court in Insular Life Assurance Co., Ltd.,
Employees Association-NATU v. Insular Life Assurance Co.,
Ltd., the test of whether an employer has

interfered with or restrained or coerced employees within the

meaning of the law is whether the employer has engaged in conduct
which may reasonably tend to interfere with the free exercise of the
employees’ rights. It is not necessary that there be direct
evidence that any employee was in fact intimidated or coerced by
the statements or threats of the employer if there is a reasonable
inference that the anti-union conduct of the employer does have an
adverse effect on the exercise of the right to self-organization and
collective bargaining.

2. TOTALITY OF CONDUCT DOCTRINE.

In ascertaining whether the act of the employer constitutes

interference with, restraint or coercion of the employees’ exercise of
their right to self-organization and collective bargaining, the “totality
of conduct doctrine” may be applied.

The totality of conduct doctrine means that expressions of opinion

by an employer, though innocent in themselves, may be held to
constitute an unfair labor practice because of the circumstances
under which they were uttered, the history of the particular
employer’s labor relations or anti-union bias or because of their
connection with an established collateral plan of coercion or
interference. An expression which may be permissibly uttered by
one employer, might, in the mouth of a more hostile employer, be
deemed improper and consequently actionable as an unfair labor
practice. The past conduct of the employer and like considerations,
coupled with an intimate connection between the employer’s action
and the union affiliation or activities of the particular employee or
employees taken as a whole, may raise a suspicion as to the
motivation for the employer’s conduct. The failure of the employer
to ascribe a valid reason therefor may justify an inference that his
unexplained conduct in respect of the particular employee or
employees was inspired by the latter’s union membership and
activities.
In General Milling,2 the Supreme Court considered the act of the
employer in presenting the letters from February to June 1993, by
13 union members signifying their resignation from the union clearly
indicative of the employer’s pressure on its employees. The records
show that the employer presented these letters to prove that the
union no longer enjoyed the support of the workers. The fact that
the resignations of the union members occurred during the
pendency of the case before the Labor Arbiter shows the employer’s
desperate attempt to cast doubt on the legitimate status of the
union. The ill-timed letters of resignation from the union members
indicate that the employer had interfered with the right of its
employees to self-organization. Because of such act, the employer
was declared guilty of ULP.

3. INTERFERENCE IN THE EMPLOYEE’S RIGHT TO SELF-

ORGANIZATION.

a. Interference is always ULP.

The judicial dictum is that any act of interference by the employer in

the exercise by employees of their right to self-organization
constitutes an unfair labor practice. This is the very core of ULP.

In Hacienda Fatima v. National Federation of Sugarcane

Workers – Food and General Trade,3 the Supreme Court upheld
the factual findings of the NLRC and the Court of Appeals that from
the employer’s refusal to bargain to its acts of economic
inducements resulting in the promotion of those who withdrew from
the union, the use of armed guards to prevent the organizers to
come in, and the dismissal of union officials and members, one
cannot but conclude that the employer did not want a union in its
hacienda - a clear interference in the right of the workers to self-
organization. Hence, the employer was held guilty of unfair labor
practice.

It was likewise held in Insular Life4 that it is an act of

interference for the employer to send individual letters to all
employees notifying them to return to work at a time specified
therein, otherwise new employees would be engaged to perform
their jobs. Individual solicitation of the employees or visiting their
homes, with the employer or his representative urging the
employees to cease their union activities or cease striking,
constitutes ULP. All the above-detailed activities are ULPs because
they tend to undermine the concerted activity of the employees, an
activity to which they are entitled free from the employer's
molestation.

b. Formation of a union is never a valid ground to dismiss.

c. It is ULP to dismiss a union officer or an employee for his

union activities.

II. YELLOW DOG CONTRACT

1. WHAT IS A YELLOW DOG CONTRACT?

It is one which exacts from workers as a condition of employment

that they shall not join or belong to a labor organization, or
attempt to organize one during their period of employment
or that they shall withdraw therefrom in case they are
already members of a labor organization.

2. COMMON STIPULATIONS IN A YELLOW DOG CONTRACT.

A typical yellow dog contract embodies the following stipulations:

(1) A representation by the employee that he is not a

member of a labor organization;

(2) A promise by the employee that he will not join a

union; and

(3) A promise by the employee that upon joining a

labor organization, he will quit his employment.
The act of the employer in imposing such a condition constitutes
unfair labor practice under Article 248(b) of the Labor Code. Such
stipulation in the contract is null and void.

3. ORIGIN OF THE TERM “YELLOW DOG.”

The term “yellow dog” traces its roots to certain commentaries

made by the labor press in the United States sometime in 1921. An
example is the following editor’s comment of the United Mine
Workers' Journal: “This agreement has been well named. It is yellow
dog for sure. It reduces to the level of a yellow dog any man that
signs it, for he signs away every right he possesses under the
Constitution and laws of the land and makes himself the truckling,
helpless slave of the employer.”1 Simply put, it is so-called “yellow
dog” because the employees were deemed to have to cower before
their "masters" to get a job.2

1. GENERAL RULE.

III. CONTRACTING OUT OF SERVICES AND FUNCTIONS

As a general rule, the act of an employer in having work or certain

services or functions being performed by union members contracted
out is not per se an unfair labor practice. This is so because
contracting-out of a job, work or service is clearly an exercise by
the employer of its business judgment and its inherent management
rights and prerogatives. Hiring of workers is within the employer’s
inherent freedom to regulate its business and is a valid exercise of
its management prerogative subject only to special laws and
agreements on the matter and the fair standards of justice. The
employer cannot be denied the faculty of promoting efficiency and
attaining economy by a study of what units are essential for its
operation. It has the ultimate right to determine whether services
should be performed by its personnel or contracted to outside
agencies.

2. WHEN CONTRACTING-OUT BECOMES ULP.

It is only when the contracting out of a job, work or service being

performed by union members will interfere with, restrain or coerce
employees in the exercise of their right to self-organization that it
shall constitute an unfair labor practice. Thus, it is not unfair labor
practice to contract out work for reasons of business decline,
inadequacy of facilities and equipment, reduction of cost and
similar reasonable grounds.

IV. COMPANY UNION

1. COMPANY INITIATED, DOMINATED OR ASSISTED UNION.

Paragraph [d] of Article 259 [248] considers it an unfair labor

practice to initiate, dominate, assist or otherwise interfere with the
formation or administration of any labor organization, including the
giving of financial or other support to it or its organizers or
supporters. Such union is called “company union” as its formation,
function or administration has been assisted by any act defined as
unfair labor practice under the Labor Code.

V. DISCRIMINATION

1. COVERAGE OF PROHIBITION.

What is prohibited as unfair labor practice under the law is to

discriminate in regard to wages, hours of work, and other terms and
conditions of employment in order to encourage or discourage
membership in any labor organization.
4. MATERIALITY OF PURPOSE OF ALLEGED DISCRIMINATORY
ACT.

In Manila Pencil Co., Inc. v. CIR,1 it was ruled that even

assuming that business conditions justify the dismissal of
employees, it is a ULP of employer to dismiss permanently
only union members and not non- unionists.

In Manila Railroad Co. v. Kapisanan ng mga

Manggagawa sa Manila Railroad Co.,2 the non-
regularization of long-time employees because of their
affiliation with the union while new employees were immediately
regularized was declared an act of discrimination.

VI. FILING OF CHARGES OR GIVING OF TESTIMONY

1. CONCEPT.

Under paragraph [f] of Article 259 [248] of the Labor Code, it is an

unfair labor practice for an employer to dismiss, discharge or
otherwise prejudice or discriminate against an employee for having
given or being about to give testimony under the Labor Code.

2. THE ONLY ULP NOT REQUIRED TO BE RELATED TO

EMPLOYEE’S EXERCISE OF THE RIGHT TO SELF-
ORGANIZATION AND COLLECTIVE BARGAINING.

It must be underscored that Article 259(f) [248 (f)] is the only

unfair labor practice that need not be related to the exercise by the
employees of their right to self-organization and collective
bargaining.

In Itogon-Suyoc Mines, Inc. v. Baldo,3 it was declared that an

unfair labor practice was committed by the employer when it
dismissed the worker who had testified in the hearing of a
certification election case despite its prior request for the employee
not to testify in the said proceeding accompanied with a promise of
being reinstated if he followed said request.

1. THREE (3) CBA-RELATED ULPs.

VII. CBA-RELATED ULPs

Article 259 [248] enunciates three (3) CBA-related unfair labor

practices, to wit:

(1) To violate the duty to bargain collectively as

prescribed in the Labor Code.

(2) To pay negotiation or attorney’s fees to the union or

its officers or agents as part of the settlement of any
issue in collective bargaining or any other dispute.

(3) To violate a collective bargaining agreement.

VII-A. PAYMENT OF NEGOTIATION AND ATTORNEY’S FEES

1. WHEN PAYMENT CONSIDERED ULP.

Article 259 (h) [248(h)] of the Labor Code considers as an unfair

labor practice the act of the employer in paying negotiation fees or
attorney’s fees to the union or its officers or agents as part of the
settlement of any issue in collective bargaining or any other dispute.

1. CORRELATION.

VII-B. VIOLATION OF THE CBA

Article 259 (i) [248(i)] of the Labor Code should be read in relation
to Article 261 thereof. Under Article

261, as amended, violations of a CBA, except those which are

gross in character, shall no longer be treated as an unfair labor
practice and shall be resolved as grievances under the CBA. Gross
violations of CBA shall mean flagrant and/or malicious refusal to
comply with the economic provisions of such agreement.

2. CASE LAW.

The act of the employer in refusing to implement the negotiated

wage increase stipulated in the CBA, which increase is intended to
be distinct and separate from any other benefits or privileges that
may be forthcoming to the employees, is an unfair labor practice.

Refusal for a considerable number of years to give salary

adjustments according to the improved salary scales in the CBA is
an unfair labor practice.
3. ULP OF LABOR ORGANIZATIONS

I. RESTRAINT AND COERCION OF EMPLOYEES IN THE

EXERCISE OF THEIR RIGHT TO SELF-ORGANIZATION

1. UNION MAY INTERFERE WITH BUT NOT RESTRAIN OR

COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO
SELF-ORGANIZE.

Under Article 260(a) [249 (a)], it is ULP for a labor organization, its
officers, agents or representatives to restrain or coerce employees
in the exercise of their right to self-organization. Compared to
similar provision of Article 248(a) of the Labor Code, notably
lacking is the use of the word “interfere” in the exercise of the
employees’ right to self-organize. The significance in the omission
of this term lies in the grant of unrestricted license to the labor
organization, its officers, agents or representatives to interfere with
the exercise by the employees of their right to self-organization.
Such interference is not unlawful since without it, no labor
organization can be formed as the act of recruiting and convincing
the employees is definitely an act of interference.

II. DISCRIMINATION

Under Article 260(b) [249 (b)], it is ULP for a labor organization, its
officers, agents or representatives:
 (1) To cause or attempt to cause an employer to
discriminate against an employee, including
discrimination against an employee with respect to
whom membership in such organization has been
denied.

(2) To terminate an employee’s union membership on any

ground other than the usual terms and conditions
under which membership or continuation of
membership is made available to other members.

III. DUTY OF UNION TO BARGAIN COLLECTIVELY

1. CONCEPT.

Under Article 260(c) [249 (c)], it is ULP for a duly certified sole and
exclusive bargaining union, its officers, agents or representatives to
refuse or violate the duty to bargain collectively with the employer.
This is the counterpart provision of Article 259(g) [248 (g)]
respecting the violation by the employer of its duty to bargain
collectively.

2. PURPOSE.

The obvious purpose of the law is to ensure that the union will
negotiate with management in good faith and for the purpose of
concluding a mutually beneficial agreement regarding the terms and
conditions of their employment relationship.

1. CONCEPT.

IV. FEATHERBEDDING DOCTRINE

Article 260(d) [249 (d)] is the “featherbedding”1 provision in the

Labor Code. Patterned after a similar provision in the Taft-Hartley
Act,2 “featherbedding” or “make-work” refers to the practice,
caused and induced by a union, of hiring more workers than are
needed to perform a given work, job or task or to adopt work
procedures which is evidently senseless, wasteful, inefficient and
without legitimate justifications since it is meant purely for the
purpose of employing additional workers than are necessary. This is
resorted to by the union as a response to the laying-off of workers
occasioned by their obsolescence because of the introduction of
machines, robots3 or new and innovative technological changes and
improvements in the workplace or as required by minimum health
and safety standards, among other reasons. Its purpose is to unduly
secure the jobs of the workers. Because of these lay-offs, the
unions are constrained to resort to some featherbedding practices.
Accordingly, they usually request that the technological changes be
introduced gradually, or not at all, or that a minimum number of
personnel be retained despite such changes. They resort to some
ways and methods of retaining workers even though there may be
little work left for them to do and perform. It therefore
unnecessarily maintains or increases the number of employees used
or the amount of time consumed to work on a specific job, work or
undertaking. By so increasing the demand for workers,
featherbedding obviously keeps wages higher.4
2. REQUISITES.

The requisites for featherbedding are as follows:

1 Etymologically, the term "featherbedding" originally referred to

any person who is pampered, coddled, or excessively rewarded. The
term originated in the use of feathers to fill mattresses in beds,
providing for more comfort. The modern use of the term in the labor
relations setting began in the United States railroad industry, which
used feathered mattresses in sleeping cars. Railway labor unions,
confronted with changing technology which led to widespread
unemployment, sought to preserve jobs by negotiating contracts
which required employers to compensate workers to do little or no
work or which required complex and time-consuming work rules so
as to generate a full day's work for an employee who otherwise
would not remain employed.

2 It is the Labor Management Relations Act of 1947, better known

as the “Taft–Hartley Act,” which was enacted on June 23, 1947. It
amended the National Labor Relations Act, 29 U.S. Code § 158 -
Unfair labor practices, Sec. 8[b] [6] thereof, which states: “to cause
or attempt to cause an employer to pay or deliver or agree to pay or
deliver any money or other thing of value, in the nature of an
exaction, for services which are not performed or not to be
performed[.]”

3 “Featherbedding” is the insistence by unions on employment of

unnecessary workers, i.e., demanding payment for work no longer
performed by workers because of machines or robots.
Featherbedding dramatically increases labor costs and decreases
productivity. (See Labor Law Glossary, Matt Austin Labor Law,
https://mattaustinlaborlaw.com/labor-law- dictionary/; Last
accessed: October 09, 2016).

4 It must be noted that Section 8(b)(6) of the Taft-Hartley Act has

outlawed featherbedding arrangements which is a ULP of the union
making the demand for payment of wages for services which are
not performed or not to be performed. However, the prohibitions
against featherbedding under this section are made applicable only
to payments for workers not to work. Consequently, the agreement
prescribing minimum number of workers to be hired and maintained
and other “make-work” arrangements are considered valid and
legal, notwithstanding the provision of this section.

(1) The labor organization, its officers, agents or representatives

have caused or attempted to cause an employer either:

a. to pay or agree to pay any money, including the

demand for fee for union negotiations; or

b. to deliver or agree to deliver any things of value;

(2) Such demand for payment of money or delivery of things of

value is in the nature of an exaction; and
(3) The services contemplated in exchange for the exaction are
not actually performed or will not be performed.
On No. 1 above, it is important that the effort at securing payment
of sums of money or delivery of goods or things of value, emanates
from and initiated by the union.

On No. 2 above, the act of the employer in paying the money or

delivering the things of value demanded by the union, is against
its will and is therefore, as the law states, “in the nature
of exaction” by the union. “Exaction”, as a legal term, means
an excessive or harsh demand of a reward or fee for an official
service performed in the normal course of duty. It is taking more
fee or pay for the services than what the law allows, under color of
one’s official authority.1

While it is a form of extortion,2 it should, however, be differentiated

from “extortion” in that, in “extortion,” the union extorts more
than its due, when something is due; in “exaction,” the union
exacts what is not due, when there is nothing due to it.3

On No. 3 above, although the employer agrees to pay money or

deliver things of value, the employees to whom such payment and
delivery are made will not actually do or perform the contemplated
services. Being an exaction, no services would be rendered in
exchange for the money paid or things of value delivered.

3. DEMAND FOR PAYMENT OF STANDBY SERVICES.

A union commits ULP under this provision by causing or attempting
to cause an employer to pay or agree to pay for standby services.
Payments for “standing-by,” or for the substantial equivalent of
“standing-by,” are not payments for “services performed” within the
meaning of the law. When an employer receives a bona-fide offer of
competent performance of relevant services, it remains for the
employer, through free and fair negotiation, to determine whether
such offer should be accepted and what compensation should be
paid for the work done.

It is an exaction constitutive of ULP within the meaning of this law

for a union to demand of the employer for a contract calling for
payment of compensation for the presence of one of its members at
a jobsite when no unionist’s work is being done therein, and when
the employer indicated that it had no need for such labor, the union
staged a strike to make the employer respond to such demand. The
demand herein is considered not a bona-fide offer of competent
performance of relevant services.5

A union’s demand that a theater corporation employ maintenance

men at its theater is also an arguable violation of the anti-
featherbedding provision of the law where maintenance men
employed at other theaters under union compulsion did little or no
actual work but were merely present on the premises during
working hours.

4. DEMAND FOR PAYMENT OF MADE WORK.

Where work is actually done by an employee with the employer’s
consent, the union’s demand that the employee be compensated for
time spent in doing the work does not violate the law.7 The law
leaves to collective bargaining the determination of what work, if
any, including bona-fide “made work,” shall be included as
compensable services and what rate of compensation shall be paid
for it.

A musicians’ union has been held not to have violated the anti-
featherbedding provision by refusing to permit a union band to
perform at the opening game of the baseball season, refusing to
permit a union organist to play at the home games, and picketing
the baseball stadium, in order to force the owner of the baseball
team to hire a union band to play at all weekend home games; or
by refusing to give its consent to appearances of travelling bands in
a theater unless the theater manager also employs a local orchestra
in connection with certain programs where the local orchestra is to
perform actual and not token services, even though the theater
manager does not need or want to employ the local orchestra.

Similarly, a printers’ union does not violate the anti-featherbedding

provision by securing payment of wages to printers from
newspapers for setting “bogus” - duplicate forms for local
advertisements although the newspaper already has cardboard
matrices to be used as molds for metal casting from which to print
the same advertisements – even though the “bogus” is ordinarily
not used but is melted down immediately.2
5. DEMAND FOR PAYMENT OF WORK ALREADY
COMPENSATED.

The anti-featherbedding provision has been held not to bar a union

from demanding payment for work for which the employer has
already paid another person. Hence, a union has been held not
guilty of ULP in demanding payment to it of an amount equal to the
wages paid by the employer to a non-union employee for work to
which the union’s members were entitled. If the work is actually
done by employees, there can be no conflict with the anti-
featherbedding provision, regardless of whether or not the persons
receiving payment are the ones who performed the work.
1. CONCEPT.

V. DEMAND OR ACCEPTANCE OF NEGOTIATION FEES OR

ATTORNEY’S FEES

Under Article 260(e) [249 (e)], it is ULP for a labor organization, its
officers, agents or representatives to ask for or accept negotiation
fees or attorney’s fees from employers as part of the settlement of
any issue in collective bargaining or any other dispute.

1. CONCEPT.

VI. VIOLATION OF THE CBA

Under Article 260(f) [249 (f)], it is ULP for a labor organization, its
officers, agents or representatives to violate a CBA.

2. COUNTERPART PROVISION.

This is the counterpart provision of Article 259(i) [248 (i)] regarding

the employer’s act of violating a CBA. But it must be noted that
under Article 261 of the Labor Code, violation of the CBA is
generally considered merely a grievable issue. It becomes an unfair
labor practice only if the violation is gross in character which means
that there is flagrant and/or malicious refusal to comply with the
economic (as distinguished from non-economic) stipulations in the
CBA. This principle applies not only to the employer but to the labor
organization as well.
VII. CRIMINAL LIABILITY FOR ULPs OF LABOR
ORGANIZATION

1. PERSONS LIABLE.

Article 260 [249] is explicit in its provision on who should be held

liable for ULPs committed by labor organizations. It states that only
the officers, members of governing boards, representatives or
agents or members of labor associations or organizations who have
actually participated in, authorized or ratified unfair labor practices
shall be held criminally liable.

B. Right to collective bargaining

Jurisdictional preconditions in collective bargaining

1. Possession of the status of majority representation of

the employees representative in accordance with any
of the means of selection or designation provided for
the Labor Code

2. Proof of majority representation

3. A demand to bargain under Art. 250 (a) of the LC.(

Kiok Loy v. NLRC. G.R. No. L‐ 54334, Jan.22,
1986)

1. Duty to bargain collectively

 (1) When there is absence of a CBA

(2) When there is a CBA

Where there is a legitimate representation issue, there is no duty to

bargain collectively on the part of the Employer. (Lakas ng mga
Manggagawang Makabayan v. Marcelo Enterprises. G.R. No.
L‐38258, Nov. 19, 1982).

There is no perfect test of good faith (GF) in bargaining. The GF or

BF is an inference to be drawn from the facts and is largely a matter
for the NLRC’s expertise. The charge of BF should be raised while
the bargaining is in progress. With the execution of the CBA, BF can
no longer be imputed upon any of the parties thereto. All provisions
in the CBA are supposed to have been jointly and voluntarily
incorporated therein by the parties. This is not a case where private
respondent exhibited an indifferent attitude towards CB because the
negotiations were not the unilateral activity of petitioner union. The
CBA is good enough that private respondent exerted “reasonable
effort of GF bargaining. (Samahang Manggagawa sa Top Form
Manufacturing‐United Workers of the Phils v. NLRC. G.R. No.
113856, Sept. 7, 1998).

This is no different from a bargaining representative’s perseverance

to include one that they deem of absolute necessity. Indeed, an
adamant insistence on a bargaining position to the point where the
negotiations reach an impasse does not establish bad faith.
Obviously, the purpose of CB is the reaching of an agreement
resulting in a contract binding on the parties; but the failure to
reach an agreement after negotiations have continued for a
reasonable period does not establish a lack of good faith. The
statutes invite and contemplate a collective bargaining contract, but
they do not compel one. The duty to bargain does not include the
obligation to reach an agreement. While the law makes it an
obligation for the Er and the Ees to bargain collectively with each
other, such compulsion does not include the commitment to
precipitately accept or agree to the proposals of the other. All it
contemplates is that both parties should approach the negotiation
with an open mind and make reasonable effort to reach a common
ground of agreement. (Union of Filipro Ees v. Nestle Phils. G.R.
Nos. 158930‐31, Mar. 3, 2008).

2. Collective Bargaining Agreement (CBA) . (Law of the Plant)

As regular employees, petitioners fall within the coverage of the

bargaining unit and are therefore entitled to CBA benefits as a
matter of law and contract. Under the terms of the CBA, petitioners
are members of the appropriate bargaining unit because they are
regular rank-and-file employees and do not belong to any of the
excluded categories. Most importantly, the labor arbiter’s decision of
January 17, 2002 – affirmed all the way to the CA – ruled against
the company’s submission that they are independent contractors.

Thus, as regular rank-and-file employees, they fall within the CBA

coverage. And, under the CBA’s express terms, they are entitled to
its benefits. CBA coverage is not only a question of fact, but of law
and contract. The factual issue is whether the petitioners are regular
rank-and-file employees of the company. The tribunals below
uniformly answered this question in the affirmative. From this
factual finding flows legal effects touching on the terms and
conditions of the petitioners’ regular employment. (Farley Fulache,
et al. vs. ABS-CBN Broadcasting Corporation. G.R. No.
183810, January 21, 2010).

The certification of the CBA by the BLR is not required to make such
contract valid. Once it is duly entered into and signed by the
parties, a CBA becomes effective as between the parties whether or
not it has been certified by the BLR. (Liberty Flour Mills Ee’s
Association v. Liberty Flour Mills. G.R. Nos. 58768‐70, Dec.
29, 1989).

A CBA is not an ordinary contract but one impressed with public

interest, only provisions embodied in the CBA should be so
interpreted and complied with. Where a proposal raised by a
contracting party does not find print in the CBA, it is not a part
thereof and the proponent has no claim whatsoever to its
implementation. (SMTFM‐UWP v. NLRC. G.R. No. 113856,
Sept. 7, 1998).

A pending cancellation proceeding is not a bar to set mechanics for

collective bargaining (CB). If a certification election may still be held
even if a petition for cancellation of a union’s registration is pending,
more so that the CB process may proceed. The majority status of
the union is not affected by the cancellation proceedings. (Capitol
Medical Center v. Trajano. G.R. No. 155690, June 30, 2005).

Although a CBA has expired, it continues to have legal effects as

between the parties until a new CBA has been entered into. (Pier &
Arrastre Stevedoring Services, Inc. v. Confessor. G.R. No.
110854, February 13, 1995).
a. Mandatory provisions of CBA

Grievance procedure

CBA is the law or contract between the parties. Article 13.1 of the
CBA entered into by and between respondent GCI and AMOSUP
provides that the Company and the Union agree that in case of
dispute or conflict in the interpretation or application of any of the
provisions of this Agreement, or enforcement of Company policies,
the same shall be settled through negotiation, conciliation or
voluntary arbitration. (Dulay vs. Aboitiz Jebsen Maritime, Inc.
and General Charterers, Inc. G.R. No. 172642, June 13,
2012)

Voluntary arbitration

Article 217 of the Labor Code states that unfair labor practices and
termination disputes fall within the original and exclusive jurisdiction
of the Labor Arbiter. As an exception, under Article 262 the
Voluntary Arbitrator, upon agreement of the parties, shall also hear
and decide all other labor disputes including unfair labor practices
and bargaining deadlocks. For the exception to apply, there must be
agreement between the parties clearly conferring jurisdiction to the
voluntary arbitrator. Such agreement may be stipulated in a
collective bargaining agreement. However, in the absence of a
collective bargaining agreement, it is enough that there is evidence
on record showing the parties have agreed to resort to voluntary
arbitration. (The University of the Immaculate Conception, et
al. vs. NLRC, et al., G.R. No. 181146, January 26, 2011).

Under voluntary arbitration, on the other hand, referral of a

dispute by the parties is made, pursuant to a voluntary
arbitration clause in their collective agreement, to an impartial third
person for a final and binding resolution. Ideally, arbitration awards
are supposed to be complied with by both parties without delay,
such that once an award has been rendered by an arbitrator,
nothing is left to be done by both parties but to comply with the
same. After all, they are presumed to have freely chosen arbitration
as the mode of settlement for that particular dispute. Pursuant
thereto, they have chosen a mutually acceptable arbitrator who
shall hear and decide their case. Above all, they have mutually
agreed to be bound by said arbitrator's decision. (Luzon Dev’t
Bank v. Ass’n of Luzon Dev’t Bank Ees; G.R. No. 120319, Oct.
6, 1995).

No strike-no lockout clause

The “no strike‐no lockout” clause in the CBA applies only to

economic strikes. It does not apply to ULP strikes. Hence, 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. (Master Iron Labor Union v. NLRC. G.R. No.
92009, Feb. 17, 1993).

Note (Poquiz): A strike can be waived under this clause

 b. Labor management council

c. Duration

Article 253 of the Labor Code mandates the parties to keep the
status quo and to continue in full force and effect the terms and
conditions of the existing agreement during the 60-day period prior
to the expiration of the old CBA and/or until a new agreement is
reached by the parties. The law does not provide for any exception
nor qualification on which economic provisions of the existing
agreement are to retain its force and effect. Likewise, the law does
not distinguish between a CBA duly agreed upon by the parties and
an imposed CBA. The provisions of the imposed CBA continues to
have full force and effect until a new CBA is entered into by the
parties. (General Milling Corporation- Independent Labor
Union [GMC-ILU] vs. General Milling Corporation G.R. Nos.
183122/183889, June 15, 2011).

While the parties may agree to extend the CBA’s original five-year
term together with all other CBA provisions, any such amendment
or term in excess of five years will not carry with it a change in the
union’s exclusive collective bargaining status. By express provision
of the above-quoted Article 253-A, the exclusive bargaining status
cannot go beyond five years and the representation status is a legal
matter not for the workplace parties to agree upon. In other words,
despite an agreement for a CBA with a life of more than five years,
either as an original provision or by amendment, the bargaining
union’s exclusive bargaining status is effective only for five years
and can be challenged within sixty (60) days prior to the expiration
of the CBA’s first five years.( FVC Labor Union-Philippine
Transport and General Workers Organization (FVCLU-
PTGWO) Vs. Sama-samang Nagkakaisang Manggagawa sa
FVC-Solidarity of Independent and General Labor
Organization (SANAMA-FVC-SIGLO. G.R. No. 176249,
November 27, 2009)

Under the principle of hold over, until a new CBA has been executed
by and between the parties, they are duty bound to keep the status
quo and must continue in full force and effect the terms and
conditions of the existing agreement. The law does not provide for
any exception or qualification as to which of the economic provisions
of the existing agreement are to retain force and effect. Therefore,
it must be encompassing all the terms and condition in the said
agreement. (New Pacific Timber v. NLRC. G.R. No. 124224,
Mar. 17, 2000).

The signing of the CBA does not determine whether the agreement
was entered into within the 6 month period from the date of
expiration of the old CBA. In the present case, there was already a
meeting of the minds between the company and the union prior to
the end of the 6 month period after the expiration of the old CBA.
Hence, such meeting of the mind is sufficient to conclude that an
agreement has been reached within the 6 month period as
provided under Art. 253‐A of the LC. (Mindanao Terminal
and Brokerage Services Inc., v. Confessor. G.R. No. 111809,
May 5, 1997).

The CBA arbitral awards granted 6 months from the expiration of

the last CBA shall retroact to such time agreed upon by both the Er
and the union. Absent such agreement as to retroactivity, the award
shall retroact to the 1st day after the 6 month period following the
expiration of the last day of the CBA should there be one. In the
absence of a CBA, the SLE’s determination of the date of
retroactivity as part of his discretionary powers over arbitral award
shall control. (Manila Electric Company v. Quisumbing. G.R. No.
127598, Feb. 22 and Aug. 1, 2000).

There is no conflict between the agreement and Art. 253‐A of the LC

for the latter has a 2‐fold purpose namely: a) to promote industrial
stability and predictability and b) to assign specific time tables
wherein negotiations become a matter of right and requirement.

In so far as the first purpose, the agreement satisfies the first

purpose. As regard the second purpose, nothing in Art. 253‐A
prohibits the parties from waiving or suspending the mandatory
timetables and agreeing on the remedies to enforce the same. For
under the said article, the representation limit of the exclusive
bargaining agent applies only when there is an existing CBA in full
force and effect. In this case, the parties agreed to suspend the CBA
and put in abeyance the limit on representation. (Rivera v.
Espiritu. G.R. No. 135547, Jan. 23, 2002).

3. Union Security

a. Union security clauses; closed shop, union

shop, maintenance of membership shop, etc.

b. Check-off; union dues, agency fees

What is indubitable from the Union Shop Clause is that upon the
effectivity of the CBA, petitioner’s new regular employees
(regardless of the manner by which they became employees of
BPI) are required to join the Union as a condition of their
continued employment. (Bank of the Philippine Islands vs. BPI
Employees Union-Davao Chapter G.R. No. 164301. October
19, 2011).

In terminating the employment of an employee by enforcing the

union security clause, the employer needs to determine and prove
that:

(1) the union security clause is applicable;

(2) the union is requesting for the enforcement

of the union security provision in the CBA;
and

(3) there is sufficient evidence to support the

decision of the union to expel the employee
from the union. These requisites constitute
just cause for terminating an employee
based on the union security provision of the
CBA.( Picop Resources Incorporated
(PRI) vs. Anacleto L. Tañeca, et al., G.R.
No. 160828, August 9, 2010).

GMC completely missed the point that the expulsion of Casio, et al.
by the union and the termination of employment of the same
employees by GMC, although related, are two separate and distinct
acts. Despite a closed shop provision in the CBA, law and
jurisprudence impose upon GMC the obligation to accord Casio, et
al. substantive and procedural due process before complying with
the union’s demand to dismiss the expelled union members from
service. The failure of GMC to carry out this obligation makes it
liable for illegal dismissal of Casio, et al. (General Milling
Corporation vs. Ernesto Casio, et al. and Virgilio Pino, et al.,
G.R. No. 149552, March 10, 2010).

While it is true that the withdrawal of support may be considered as

a resignation from the union, the fact remains that at the time of
the union’s application for registration, the affiants were members
of the union and they comprised more than the required 20%
membership for purposes of registration as a labor union. Article
234 of the Labor Code merely requires a 20% minimum
membership during the application for union registration. It does
not mandate that a union must maintain the 20% minimum
membership requirement all throughout its existence. (Mariwasa
Siam Ceramics, Inc. vs. The Secretary of the Department of
Labor and Employment, et al., G.R. No. 183317, December
21, 2009).

Article 222(b) of the Labor Code, as amended, prohibits the

payment of attorney’s fees only when it is effected through forced
contributions from the employees from their own funds as
distinguished from union funds. Hence, the general rule is that
attorney’s fees, negotiation fees, and other similar charges may
only be collected from union funds, not from the amounts that
pertain to individual union members. As an exception to the general
rule, special assessments or other extraordinary fees may be levied
upon or checked off from any amount due an employee for as long
as there is proper authorization by the employee. A check-off is a
process or device whereby the employer, on agreement with the
Union, recognized as the proper bargaining representative, or on
prior authorization from the employees, deducts union dues or
agency fees from the latter’s wages and remits them directly to the
Union. Its desirability in a labor organization is quite evident. The
Union is assured thereby of continuous funding. The system of
check-off is primarily for the benefit of the Union and, only
indirectly, for the individual employees.

These requisites are:

(1) an authorization by a written resolution of

the majority of all the union members at
the general membership meeting duly
called for the purpose;
(2) secretary’s record of the minutes of the
meeting; and
(3) individual written authorization for check-
off duly signed by the employee
concerned.
(Eduardo J. Mariño, Jr. et al. vs. Gil Y. Gamilla, et al.. G.R. No.
149763, July 7, 2009).

A shop steward leads to the conclusion that it is a position within

the union, and not within the company. A shop steward is appointed
by the union in a shop, department, or plant and serves as
representative of the union, charged with negotiating and
adjustment of grievances of employees with the supervisor of the
employer. He is the representative of the union members in a
building or other workplace. Black’s Law Dictionary defines a shop
steward as a union official elected to represent members in a plant
or particular department. His duties include collection of dues,
recruitment of new members and initial negotiations for the
settlement of grievances. A judgment of reinstatement of the
petitioner to the position of union Shop Steward would have no
practical legal effect since it cannot be enforced. Based on the
requirements imposed by law and the APCWU-ATI CBA, and in the
nature of things, the subsequent separation of the petitioner from
employment with respondent ATI has made his reinstatement to
union Shop Steward incapable of being enforced. (Teodoro S.
Miranda, Jr. vs. Asian Terminals, Inc. and Court of Appeals,
G.R. No. 174316, June 23, 2009).

“Union security” is a generic term, which is applied to and

comprehends “closed shop,” “union shop,” “maintenance of
membership” or any other form of agreement which imposes upon
employees the obligation to acquire or retain union membership as
a condition affecting employment. There is union shop when all new
regular employees are required to join the union within a certain
period as a condition for their continued employment. There is
maintenance of membership shop when employees, who are union
members as of the effective date of the agreement, or who
thereafter become members, must maintain union membership as a
condition for continued employment until they are promoted or
transferred out of the bargaining unit or the agreement is
terminated. A closed-shop, on the other hand, may be defined as an
enterprise in which, by agreement between the employer and his
employees or their representatives, no person may be employed in
any or certain agreed departments of the enterprise unless he or
she is, becomes, and, for the duration of the agreement, remains a
member in good standing of a union entirely comprised of or of
which the employees in interest are a part.

In terminating the employment of an employee by enforcing the

Union Security Clause, the employer needs only to determine and
prove that:

2. the union security clause is applicable;

3. the union is requesting for the enforcement of the
union security provision in the CBA; and
4. there is sufficient evidence to support the union’s
decision to expel the employee from the union or
company. (Herminigildo Inguillom, et al. vs.
First Philippine Scales, Inc., et al. G.R. No.
165407, June 5, 2009

4. Unfair Labor Practice in collective bargaining

a. Bargaining in bad faith

The act of the employer in refusing to comply with the terms and
conditions of a CBA constitutes bargaining in bad faith and is
considered an unfair labor practice. (Oceanic Pharmacal
Employees Union vs. Inciong. G. R. No. L-50568, Nov. 7,
1979).
b. Refusal to bargain

c. Blue sky bargaining

Whether or not the union is engaged in blue‐sky bargaining is

determined by the evidence presented by the union as to its
economic demands. Thus, if the union requires exaggerated or
unreasonable economic demands, then it is guilty of ULP. In order
to be considered as unfair labor practice, there must be proof that
the demands made by the union were exaggerated or unreasonable.
In the minutes of the meeting show that the union based its
economic proposals on data of rank-and-file employees and the
prevailing economic benefits received by bank employees from
other foreign banks doing business in the Philippines and other
branches of the bank in the Asian region. Hence, it cannot be said
that the union was guilty of ULP for blue-sky bargaining.(Standard
Chartered Bank v. Confessor. G.R. No. 114974, June 16,
2004).

d. Surface bargaining

Surface bargaining” is defined as “going through the motions of

negotiating” without any legal intent to reach an agreement. The
resolution of surface bargaining allegations never presents an easy
issue. The determination of whether a party has engaged in
unlawful surface bargaining is usually a difficult one because it
involves, at bottom, a question of the intent of the party in
question, and usually such intent can only be inferred from the
totality of the challenged party’s conduct both at and away from the
bargaining table. Whether an employer’s conduct demonstrates an
unwillingness to bargain in good faith or is merely hard bargaining.
There can be no surface bargaining, absent any evidence that
management had done acts, both at and away from the bargaining
table, which tend to show that it did not want to reach an
agreement with the union or to settle the differences between it and
the union. Here, admittedly, the parties were not able to agree and
reached a deadlock. However, it must be emphasized that the duty
to bargain “does not compel either party to agree to a proposal or
require the making of a concession.” Hence, the parties’ failure to
agree does not amount to ULP under Article 248 [g] for violation of
the duty to bargain. (Standard Chartered Bank Employees
Union [NUBE] vs. Confesor. G. R. No. 114974, June 16,
2004).

e. Unfair Labor Practice (ULP)

1. Nature of ULP

Anent the charge of unfair labor practice, Article 248 (a) of the
Labor Code considers it an unfair labor practice when an employer
interferes, restrains or coerces employees in the exercise of their
right to self-organization or the right to form an association. In
order to show that the employer committed unfair labor practice
under the Labor Code, substantial evidence is required to support
the claim. Substantial evidence has been defined as such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. In the case at bar, respondents were indeed
unceremoniously dismissed from work by reason of their intent to
form and organize a union. (Park Hotel, et al. vs. Manolo
Soriano, et al. G.R. No. 171118. September 10, 2012).

Unfair labor practice refers to acts that violate the workers’ right to
organize. The prohibited acts are related to the workers’ right to
self-organization and to the observance of a CBA. Thus, an
employer may be held liable for unfair labor practice only if it can be
shown that his acts interfere with his employees’ right to self-
organization. Since there is no showing that the respondent
company’s implementation of the Right-Sizing Program was
motivated by ill will, bad faith or malice, or that it was aimed at
interfering with its employees’ right to self-organization, there is no
unfair labor practice to speak of in this case. (Nelson A. Culili v.
Eastern Telecommunications Philippines, Inc., et al. G.R. No.
165381, February 9, 2011).

Unfair labor practice refers to “acts that violate the workers’ right to
organize.” The prohibited acts are related to the workers’ right to
self-organization and to the observance of a CBA. Without that
element, the acts, even if unfair, are not unfair labor practices.
(General Santos Coca Cola Plant Free Workers Union-
Tupas vs. COCA-COLA BOTTLERS PHILS., INC. G.R. No.
178647. Feb. 13, 2007).
2. ULP of employers

For a charge of unfair labor practice to prosper, it must be shown

that respondent CAB’s suspension of negotiation with CABEU-NFL
and its act of concluding a CBA with CABELA, another union in the
bargaining unit, were motivated by ill will, “bad faith, or fraud, or
was oppressive to labor, or done in a manner contrary to morals,
good customs, or public policy…” However, the facts show that CAB
believed that CABEU-NFL was no longer the representative of the
workers. It just wanted to foster industrial peace by bowing to the
wishes of the overwhelming majority of its rank and file workers and
by negotiating and concluding in good faith a CBA with CABELA.”
Such actions of CAB are nowhere tantamount to anti-unionism, the
evil sought to be punished in cases of unfair labor practices.
(Central Azucarera De Bais Employees Union-NFL,
represented by its President, Pablito Saguran vs. Central
Azucarera De Bais, Inc. G.R. No. 186605, November 17,
2010).

Unfair labor practice cannot be imputed to MMC since the call of

MMC for a suspension of the CBA negotiations cannot be equated to
“refusal to bargain.” Article 252 of the Labor Code defines the
phrase “duty to bargain collectively.” For a charge of unfair labor
practice to prosper, it must be shown that the employer was
motivated by ill-will, bad faith or fraud, or was oppressive to labor.
The employer must have acted in a manner contrary to morals,
good customs, or public policy causing social humiliation, wounded
feelings or grave anxiety. It cannot be said that MMC deliberately
avoided the negotiation. It merely sought a suspension and even
expressed its willingness to negotiate once the mining operations
resume. There was valid reliance on the suspension of mining
operations for the suspension of the CBA negotiation. The Union
failed to prove bad faith. (Manila Mining Corp. Employees
Association, et al. vs.. Manila Mining corp, et al.,G.R. Nos.
178222-23, September 29, 2010).

We found it proper to award moral and exemplary damages to

illegally dismissed employees as their dismissal was tainted with
unfair labor practice. The Court said: Unfair labor practices violate
the constitutional rights of workers and employees to self-
organization, are inimical to the legitimate interests of both labor
and management, including their right to bargain collectively and
otherwise deal with each other in an atmosphere of freedom and
mutual respect; and disrupt industrial peace and hinder the
promotion of healthy and stable labor-management relations. As the
conscience of the government, it is the Court’s sworn duty to ensure
that none trifles with labor rights. (Geronimo Q. Quadra vs. Court
of Appeals G.R. No. 147593, July 31, 2006).

To constitute ULP, however, violations of the CBA must be gross.

Gross violation of the CBA, under Article 261 of the Labor Code,
means flagrant and/or malicious refusal to comply with the
economic provisions thereof. Evidently, the University can not be
faulted for ULP as it in good faith merely heeded the above-said
request of Union members. (Arellano University Employees and
Workers Union vs Court of Appeals, G.R. No. 139940,
September 19, 2006).

Direct evidence that an Ee was in fact intended or coerced by the

statements of threats of the Er is not necessary if there is a
reasonable interference that the anti‐union conduct of the Er does
have an adverse effect on self‐organization and CB. (The Insular
Life Assurance‐NATU v. The Insular Life Co. Ltd. G.R. No.L‐
25291, Jan. 30, 1971).

A company’s refusal to make counter‐proposal, if considered in

relation to the entire bargaining process, may indicate BF and this is
especially true where the union’s request for a counter proposal is
left unanswered. (Kiok Loy v. NLRC. G.R. No. L‐54334, Jan. 22,
1986).

ALU is the certified exclusive bargaining representative after

winning the certification election. The company merely relied on the
letter of disaffiliation by BFEA’s president without proof and
consequently refusing to bargain collectively constitutes ULP.
Such refusal by the company to bargain collectively with the
certified exclusive bargaining representative is a violation of its duty
to collectively bargain which constitutes ULP. ( Balmar Farms v.
NLRC. G.R. No.73504, Oct. 15, 1991)

(a) ULP of labor organizations

A union member may not be expelled from the union, and

consequently from his job, for personal and impetuous reasons or
for causes foreign to the closed shop agreement. (Manila
Mandarin Ees Union v. NLRC. G.R. No. 76989, Sep. 29, 1987).

Labor unions are not entitled to arbitrarily exclude qualified

applicants for membership and a closed‐ shop applicants provision
will not justify the employer in discharging, or a union in insisting
upon the discharge of an employee whom the union thus refuses to
admit to membership without any reasonable ground thereof.
(Salunga v. CIR. G.R. No. L‐22456, Sep. 27, 1967).

Note (Poquiz):

ULP's committed in the absence of employer-employee relationship:

a) Agents of the employer or union who are non-

employees may commit ULP

b) In the case of yellow-dog contract, where ULP is

committed by the employer against an applicant to
the job, and

c) In case of the application of the doctrine of

innocent by-stander

B. Right to peaceful concerted activities

The law does not look with favor upon strikes and lockouts because
of their disturbing and pernicious effects upon the social order and
the public interests; to prevent or avert them and to implement
Sec. 6, Art. XIV of the Constitution, the law has created several
agencies, namely: the BLR, the DOLE, the Labor Management
Advisory Board, and the CIR. (Luzon Marine Dev’t Union v.
Roldan. G.R. No. L‐2660, May 30, 1950).

Assuming that they acted in their individual capacities when they

wrote the letter, they were nonetheless protected, for they were
engaged in a concerted activity, in their right of self‐
organization that includes concerted activity for mutual aid and
protection. Any interference made by the company will constitute as
ULP. The joining in protests or demands, even by a small group of
Ees, if in furtherance of their interests as such is a concerted
activity protected by the Industrial Peace Act. It is not
necessary that union activity be involved or that collective
bargaining be contemplated. (Republic Savings Bank v. CIR.
G.R. No. L‐20303, Oct. 31, 1967).

It shall comprise not only concerted work stoppages, but also

slowdowns, mass leaves, sitdowns, attempt to damage, destroy or
sabotage plant equipment and facilities, and similar activities.
(Samahang Manggagawa sa Sulpicion Lines v. Sulpicio Lines,
Inc. G.R. No. 140992, Mar. 25, 2004).

A coercive measure resorted to by laborers to enforce their

demands. The idea behind a strike is that a company engaged in a
profitable business cannot afford to have its production or activities
interrupted, much less, paralyzed. (Phil. Can Co. v. CIR. G.R. No.
L‐3021, July 13, 1950).

The concept of a slowdown is a "strike on the installment plan." It is

a willful reduction in the rate of work by concerted action of workers
for the purpose of restricting the output of the employer (Er), in
relation to a labor dispute; as an activity by which workers, without
a complete stoppage of work, retard production or their
performance of duties and functions to compel management to
grant their demands. Such a slowdown is generally condemned as
inherently illicit and unjustifiable, because while the employees
(Ees) "continue to work and remain at their positions and accept the
wages paid to them," they at the same time "select what part of
their allotted tasks they care to perform of their own volition or
refuse openly or secretly, to the Er's damage, to do other work;" in
other words, they "work on their own terms. (Interphil
Laboratories Ees Union‐FFW v. Interphil Laboratories,
Inc.G.R. No. 142824, Dec. 19, 2001).

An Ee has no inherent right to seniority. He has only such rights as

may be based on a contract, statute, or an administrative regulation
relative thereto. Seniority rights which are acquired by an Ee
through long‐time employment are contractual and not
constitutional. The discharge of an Ee thereby terminating such
rights would not violate the Constitution. When the pilots tendered
their respective retirement or resignation and PAL immediately
accepted them, both parties mutually terminated the contractual
employment relationship between them thereby curtailing whatever
seniority rights and privileges the pilots had earned through the
years. The pilots’ mass action was not a strike because Ees who go
on strike do not quit their employment. Ordinarily, the relationship
of Er and Ee continues until one of the parties acts to sever the
relationship or they mutually act to accomplish that purpose. As
they did not assume the status of strikers, their “protest
retirement/resignation” was not a concerted activity which was
protected by law. (Enrique v. Zamora. G.R. No. L‐51382, Dec.
29, 1986).
Any controversy or matter concerning terms or conditions or
representation of persons in negotiating, fixing, maintaining,
changing or arranging the terms and conditions of employment,
regardless of whether or not the disputants stand in the proximate
relation of Ers and Ees. (Gold City Integrated Port Services, Inc.
v. NLRC. G.R. No. 103560, July 6, 1995)

Liwayway Publication Inc. is not in anyway related to the striking

union except for the fact that it is the sub‐ lessee of a bodega in
the company’s compound. The business of Liwayway is
exclusively the publication of magazines which has absolutely
no relation or connection whatsoever with the cause of the strike
of the union against their company, much less with the terms,
conditions or demands of the strikers. Liwayway is merely a 3rd
person or an innocent by‐stander. (Liwayway Pub., Inc. v.
Permanent Concrete Workers Union. G.R. No. L‐25003, Oct.
23, 1981).

The concerted efforts of the members of the union and its

supporters caused a temporary work stoppage. The allegation that
there can be no work stoppage because the operation in the division
had been shut down is of no consequence. It bears stressing that
the other divisions were fully operational. (Bukluran ng
Manggagawa sa Clothman Knitting Corp. v. CA. G.R. No.
158158, Jan.17, 2005).
 1. Forms of concerted activities

Article 212 of the Labor Code, as amended, defines strike as any

temporary stoppage of work by the concerted action of employees
as a result of an industrial or labor dispute. 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 or not the
disputants stand in the proximate relation of employers and
employees. The term “strike” shall also include slowdowns, mass
leaves, sitdowns, attempts to damage, destroy or sabotage plant
equipment and facilities and similar activities. In the instant case,
about 712 employees absented themselves from work in a
concerted fashion for three continuous days. Considering that these
mass actions stemmed from a bargaining deadlock and an order of
assumption of jurisdiction had already been issued by the Secretary
of Labor to avert an impending strike, all the elements of strike are
evident in the Union-instigated mass actions. (Solid Bank Corp.
Ernesto U. Gamier, et al. and Solid Bank Corp., et al. vs. Solid
Bank Union and its Dismissed Officers and Members, et al.
G.R. No. 159460 and G.R. No. 159461, November 15, 2010).

2. Who may declare a strike or lockout?

NAMA-MCCH-NFL is not a legitimate labor organization, thus, the

strike staged by its leaders and members was declared illegal.
(Visayas Community Medical Center (VCMC) formerly known
as Metro Cebu Commnunity Hospital (MCCH) v. Erma Yballe,
et al., G.R. No. 196156, January 15, 2014).

3. Requisites for a valid strike/lockout

Article 263 of the Labor Code, as amended by Republic Act (R.A.)

No. 6715, and Rule XXII, Book V of the Omnibus Rules
Implementing the Labor Code outline the following procedural
requirements for a valid strike:

1) A notice of strike, with the required

contents, should be filed with the DOLE,
specifically the Regional Branch of the
NCMB, copy furnished the employer of the
union;

2) A cooling-off period must be observed

between the filing of notice and the actual
execution of the strike thirty (30) days in
case of bargaining deadlock and fifteen (15)
days in case of unfair labor practice.
However, in the case of union busting where
the union’s existence is threatened, the
cooling-off period need not be observed.

xxx xxx xxx

 3) Before a strike is actually commenced, a
strike vote should be taken by secret
balloting, with a 24-hour prior notice to
NCMB. The decision to declare a strike
requires the secret-ballot approval of
majority of the total union membership in
the bargaining unit concerned.

4) The result of the strike vote should be

reported to the NCMB at least seven (7)
days before the intended strike or lockout,
subject to the cooling-off period. It is settled
that these requirements are mandatory in
nature and failure to comply therewith
renders the strike illegal.

The requisites for a valid strike are:

(a) a notice of strike filed with the DOLE 30 days

before the intended date thereof or 15 days
in case of ULP;

(b) a strike vote approved by a majority of the

total union membership in the bargaining
unit concerned obtained by secret ballot in a
meeting called for that purpose; and

(c) a notice to the DOLE of the results of the

voting at least seven (7) days before the
 intended strike. The requirements are
mandatory and failure of a union to comply
therewith renders the strike illegal. (Hotel
Enterprises of the Philippines, Inc., etc.
vs. Samahan ng mga Manggagawa sa
Hyatt-National Union of Workers in the
Hotel Restaurant, etc., G.R. No. 165756,
June 5, 2009).

Article 212 of the Labor Code defines strike as any temporary

stoppage of work by the concerted action of employees as a result
of an industrial or labor dispute. A valid strike therefore
presupposes the existence of a labor dispute. The strike undertaken
by respondents took the form of a sit-down strike, or more aptly
termed as a sympathetic strike, where the striking employees have
no demands or grievances of their own, but they strike for the
purpose of directly or indirectly aiding others, without direct relation
to the advancement of the interest of the strikers. It is indubitable
that an illegal strike in the form of a sit-down strike occurred in
petitioner’s premises, as a show of sympathy to the two employees
who were dismissed by petitioner. Apart from the allegations in its
complaint for illegal strike filed before the Labor Arbiter, petitioner
presented the affidavits and testimonies of their other employees
which confirm the participation of respondents in the illegal strike.
Petitioner has sufficiently established that respondents remained in
the work premises in the guise of waiting for orders from
management to resume operations when, in fact, they were actively
participating in the illegal strike. (G & S Transport Corporation,
vs Tito S. Infante, G. R. No. 160303, September 13, 2007).
It is undisputed that the notice of strike was filed by the union
without attaching the counter-proposal of the company. This,
according to petitioners and the labor arbiter, made the ensuing
strike of respondents illegal because the notice of strike of the union
was defective.The Implementing Rules use the words “as far as
practicable.” In this case, attaching the counter-proposal of the
company to the notice of strike of the union was not practicable. It
was absurd to expect the union to produce the company’s counter-
proposal which it did not have. One cannot give what one does not
have. Indeed, compliance with the requirement was impossible
because no counter-proposal existed at the time the union filed a
notice of strike. The law does not exact compliance with
the impossible. Nemo tenetur ad impossible. (Club Filipino, Inc.
and Atty. Roberto F. De Leon vs. Benjamin Bautista, et al.,
G.R. No. 168406, July 13, 2009).

There is no question that the May 6, 2002 strike was illegal, first,
because when Kilusang Manggagawa ng LGS, Magdala Multipurpose
and Livelihood Cooperative (KMLMS) filed the notice of strike on
March 5 or 14, 2002, it had not yet acquired legal personality and,
thus, could not legally represent the eventual union and its
members. And second, similarly, when KMLMS conducted the strike-
vote on April 8, 2002, there was still no union to speak of, since
KMLMS only acquired legal personality as an independent legitimate
labor organization only on April 9, 2002 or the day after it
conducted the strike-vote. Consequently, the mandatory notice of
strike and the conduct of the strike-vote report were ineffective for
having been filed and conducted before KMLMS acquired legal
personality as a legitimate labor organization, violating Art. 263(c),
(d) and (f) of the Labor Code and Rule XXII, Book V of the Omnibus
Rules Implementing the Labor Code. It is, thus, clear that KMLMS
did not comply with the mandatory requirement of law and
implementing rules on possession of a legal personality as a
legitimate labor organization. (Magdala Multipurpose &
Livelihood, et al. vs. KMLMS, et al.,G.R. No. 191138-39.
October 19, 2011).

In fine, the legality of a strike is determined not only by compliance

with its legal formalities but also by the means by which it is carried
out. (Biflex Phils. Inc. Labor Union (NAFLU) vs. Filflex
Industrial & Manufacturing Corporation. G.R. No. 155679,
December 19, 2006).

In the event the result of the strike/lockout ballot 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.
(NSFW vs. Ovejera. G.R. No. 59743, May 31, 1982).

Ees, who have no labor dispute with their Er but who, on a day they
are scheduled to work, refuse to work and instead join a welga ng
bayan commit an illegal work stoppage. There being no showing
that the two unions notified the corporations of their intention, or
that they were allowed by the corporations, to join the welga ng
bayan, their work stoppage is beyond legal protection. (BIFLEX
Phils. Inc. Labor Union (NAFLU) vs. FILFLEX Industrial and
Manufacturing Corp. G.R. No. 155679, Dec. 19, 2006).

The failure of the union to serve the company a copy of the notice
of strike is a clear violation of Section 3, Rule XXII, Book V of the
Rules Implementing the LC. The Constitutional precepts of due
process mandate that the other party be notified of the adverse
action of the opposing party. (Filipino Pipe and Foundry Corp.
v. NLRC. G.R. No. 115180, Nov.16, 1999).

To give DOLE an opportunity to verify whether the projected strike

really carries the imprimatur of the majority of the union members
in addition to the cooling‐off period before the actual strike.
(Lapanday Workers’ Union, et.al. v. NLRC. G.R. Nos. 95494‐
97, Sep. 7, 1995).

A no strike/lockout clause is legal, but it is applicable only to

economic strikes, not ULP strikes. As a provision in the CBA, it is a
valid stipulation although the clause may be invoked by an
employer (Er) only when the strike is economic in nature or one
which is conducted to force wage or other concessions from the Er
that are not mandated to be granted by the law itself. It would be
inapplicable to prevent a strike which is grounded on ULP.
(Malayang Samahan ng mga Manggagawa sa Greenfield v.
Ramos. G.R. No. 113907, Feb. 28, 2000).
In cases of ULP, the notice of strike shall as far as practicable, state
the acts complained of and the efforts to resolve the dispute
amicably. (Tiu v. NLRC. G.R. No. 123276, Aug. 18, 1997).

The cooling‐off period in Art. 264(c) and the 7‐day strike ban after
the strike‐vote report prescribed in Art. 264 (f) were meant to be
mandatory. The law provides that “the labor union may strike”
should the dispute “remain unsettled until the lapse of the requisite
number of days from the filing of the notice”, this clearly implies
that the union may not strike before the lapse of the cooling‐off
period.

The cooling‐off period is for the Ministry of Labor and

Employment to exert all efforts at mediation and conciliation to
effect a voluntary settlement. The mandatory character of the 7‐day
strike ban is manifest in the provision that “in every case” the union
shall furnish the MOLE with the results of the voting “at least 7 days
before the intended strike.” This period is to give time to verify that
a strike vote was actually held. (NFSW v. Ovejera. G.R. No.
L‐ 59743, May 31, 1982).

There is no evidence to show that a strike vote had in fact been

taken before a strike was called. Even if there was a strike vote
held, the strike called by the union was illegal because of non‐
observance by the union of the mandatory 7‐ day strike ban
counted from the date the strike vote should have been reported
to the DOLE. (First City Interlink Transportation Co., Inc.
v. Confessor. G.R. No. 106316, May 5, 1997).

When the workers who staged a voluntary ULP strike

offered to return to work unconditionally but the Er refused to
reinstate them.( Manila Diamond Hotel vs. Manila Diamond
Hotel Ees’ Union, G.R. No. 158075, June 30, 2006).

4. Requisites for lawful picketing

To strike is to withhold or to stop work by the concerted action of

employees as a result of an industrial or labor dispute. The work
stoppage may be accompanied by picketing by the striking
employees outside of the company compound. While a strike
focuses on stoppage of work, picketing focuses on publicizing the
labor dispute and its incidents to inform the public of what is
happening in the company struck against. A picket simply means to
march to and from the employer’s premises, usually accompanied
by the display of placards and other signs making known the facts
involved in a labor dispute. It is a strike activity separate and
different from the actual stoppage of work. (PHIMCO Industries,
Inc. v. PHIMCO Industries Labor Association (PILA), et al,
G.R. No. 170830, August 11, 2010).

The right to picket as a means of communicating the facts of a

labor dispute is a phase of the freedom of speech guaranteed by
the Constitution. If peacefully carried out, it cannot be curtailed
even in the absence of Er‐Ee relationship. (PAFLU v. Cloribel. G.R.
No. L‐25878, Mar. 28, 1969).

While peaceful picketing is entitled to protection as an exercise of

free speech, the courts are not without power to confine or localize
the sphere of communication or the demonstration to the parties to
the labor dispute, including those with related interests, and to
insulate establishments or persons with no industrial connection or
having interest totally foreign to the context of the dispute.
(Liwayway Pub., Inc. v. Permanent Concrete Workers
Union. G.R. No. L‐25003, Oct. 23, 1981).

5. Assumption of jurisdiction by the DOLE Secretary

or Certification of the labor dispute to the NLRC
for compulsory arbitration

The assumption of jurisdiction powers granted to the Labor

Secretary under Article 263(g) is not limited to the grounds cited in
the notice of strike or lockout that may have preceded the strike or
lockout; nor is it limited to the incidents of the strike or lockout that
in the meanwhile may have taken place. As the term “assume
jurisdiction” connotes, the intent of the law is to give the Labor
Secretary full authority to resolve all matters within the dispute that
gave rise to or which arose out of the strike or lockout, including
cases over which the labor arbiter has exclusive jurisdiction.
(Bagong Pagkakaisa ng Manggagawa ng Triumph
International, et al. vs. Secretary of Department of Labor and
Employment, et al./Triumph International (phils.), Inc. vs.
Bagong Pagkakaisa ng Manggagawa ng Triumph
International, et al., G.R. No. 167401, July 5, 2010).

Articles 263 (g) and 264 of the Labor Code have been enacted
pursuant to the police power of the State. The grant of plenary
powers to the Secretary of Labor makes it incumbent upon him to
bring about soonest, a fair and just solution to the differences
between theramiemployer and the employees, so that the damage
such labor dispute might cause upon the national interest may be
minimized as much as possible, if not totally averted, by avoiding
stoppage of work or any lag in the activities of the industry or the
possibility of those contingencies that might cause detriment to the
national interest. In order to effectively achieve such end, the
assumption or certification order shall have the effect of
automatically enjoining the intended or impending strike or lockout.
Moreover, if one has already taken place, all striking workers shall
immediately return to work, and the employer shall immediately
resume operations and readmit all workers under the same terms
and conditions prevailing before the strike or lockout. 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. (YSS Employees Union-
Philippine Transport and General Organization vs. YSS
Laboratories, Inc., G.R. No. 155125, December 4, 2009).

Automatically enjoins the intended or impending strike/lockout but if

one has already taken place, all striking or locked out Ees shall
immediately return to work and the Er shall immediately resume
operations and re‐admit all workers under the same terms and
conditions prevailing before the strike or lockout. (Trans‐ Asia
Shipping Lines, Inc.‐Unlicensed Crews Ee’s Union v. CA.
G.R. No. 145428, July 7, 2004).

Payroll reinstatement in lieu of actual reinstatement but there must

be showing of special circumstances rendering actual reinstatement
impracticable, or otherwise not conducive to attaining the purpose
of the law in providing for assumption of jurisdiction by the SLE in a
labor dispute that affects the national interest. (Manila Diamond
Hotel Ees Union v. SLE G.R. No. 140518, Dec. 16, 2004).

Mere issuance of an assumption order automatically carries with it a

return‐to‐work order although not expressly stated therein. (TSEU‐
FFW v. CA. G.R. Nos. 143013‐14, Dec.18, 2000).

a. Issues that the SLE may resolve when he

assumes jurisdiction over a labor dispute

SLE may subsume pending labor cases before LAs which are
involved in the dispute and decide even issues falling under the
exclusive and original jurisdiction of LAs such as the declaration of
legality or illegality of strike. (Int’l. Pharmaceuticals v. SLE G.R.
Nos. 92981‐83, Jan. 9, 1992).

Power of SLE is plenary and discretionary.( St. Luke’s Medical

Center v. Torres G.R. No. 99395, June29, 1993).

Where the return to work order is issued pending the determination

of the legality of the strike, it is not correct to say that it may
be enforced only if the strike is legal and may be disregarded if
illegal. Precisely, the purpose of the return to work order is to
maintain the status quo while the determination is being made. (6.
Nature of assumption order or certification order. (Sarmiento v.
Tuico. G.R. Nos. 75271‐73, June 27, 1988).
The assumption of jurisdiction is in the nature of a police power
measure. This is done for the promotion of the common good
considering that a prolonged strike or lockout can be inimical to the
national economy. The SLE acts to maintain industrial peace. Thus,
his certification for compulsory arbitration is not intended to impede
the worker’s right to strike but to obtain a speedy settlement of the
dispute. (Philtread Workers Union v. Confesor. G.R. No.
117169, Mar. 12, 1997).

Art. 263(g) does not interfere with the workers right to strike but
merely regulates it, when in the exercise of such right national
interest will be affected. The LC vests upon the SLE the discretion to
determine what industries are indispensable to national interest.
The underlying principle embodied in Art. 263 (g) on the settlement
of labor disputes is that assumption and certification orders are
executor in character and are strictly complied with by the parties
even during the pendency of any petition questioning their validity.
This extraordinary authority given to the Secretary of Labor is
aimed at arriving at a peaceful and speedy solution to labor
disputes, without jeopardizing national interests.

Art. 263(g) is clear and unequivocal in stating that all striking or

lock‐out Ees shall immediately return to work and the Er shall
immediately resume operations and readmit all workers under the
same terms and conditions prevailing before the strike or lockout.
Records of the case would show that the strike occurred one day
before the members of the union were dismissed due to alleged
redundancy. Thus the abovementioned article directs that the Er
must readmit all workers under the same terms and conditions
prevailing before the strike. (PLDT v. Manggagawa ng
Komunikasyon sa Pilipinas G.R. No. 162783, July 14, 2005).
 7. Effect of defiance of assumption or certification orders

Under Article 264 (a) of the Labor Code, as amended, a strike that
is undertaken despite the issuance by the Secretary of Labor of an
assumption order and/or certification is illegal. So is a declaration of
a strike during the pendency of cases involving the same grounds
for the strike. In the present case, there is no dispute that when
respondents conducted their mass actions on April 3 to 6, 2000, the
proceedings before the Secretary of Labor were still pending as both
parties filed motions for reconsideration of the March 24, 2000
Order. Clearly, respondents knowingly violated the aforesaid
provision by holding a strike in the guise of mass demonstration.(
Solid Bank Corp. Ernesto U. Gamier, et al. and Solid Bank
Corp., et al. vs. Solid Bank Union and its Dismissed Officers
and Members, et al. G.R. No. 159460 and G.R. No. 159461,
November 15, 2010).

It shall be considered an illegal act committed in the course of the

strike or lockout and shall authorize the SLE or the NLRC, as the
case may be, to enforce the same under pain or loss of employment
status or entitlement to full employment benefits from the locking‐
out Er or backwages, damages and/or other positive and/or
affirmative reliefs, even to criminal prosecution against the liable
parties. (St. Scholastica’s College v. Torres. G.R. No.
100158, June 2, 1992).
 8. Illegal strike

The Supreme Court also cited the 6 categories of illegal strikes

which are:

1. When it is contrary to a specific prohibition

of law, such as strike by employees
performing governmental functions; or

2. When it violates a specific requirement of

law, [such as Article 263 of the Labor Code
on the requisites of a valid strike]; or

3. When it is declared for an unlawful purpose,

such as inducing the employer to commit an
unfair labor practice against non-union
employees; or
 4. When it employs unlawful means in the
pursuit of its objective, such as a widespread
terrorism of non-strikers [for example,
prohibited acts under Art. 264(e) of the
Labor Code]; or

5. When it is declared in violation of an existing

injunction, [such as injunction, prohibition,
or order issued by the DOLE Secretary and
the NLRC under Art. 263 of the Labor Code];
or

6. When it is contrary to an existing

agreement, such as a no-strike clause or
conclusive arbitration clause.(Toyota v
Toyota Workers Association. G.R. Nos.
158786 & 158789 October 19, 2007).

What is more, the strike had been attended by the widespread

commission of prohibited acts. Well-settled is the rule that even if
the strike were to be declared valid because its objective or purpose
is lawful, the strike may still be declared invalid where the means
employed are illegal.[ Among such limits are the prohibited
activities under Article 264 of the Labor Code, particularly paragraph
(e), which states that no person engaged in picketing shall:

a) commit any act of violence, coercion,

or intimidation or obstruct the free
ingress to or egress from the
 employer's premises for lawful
purposes, or

b) obstruct public thoroughfares.

The following acts have been held to be prohibited activities: where

the strikers shouted slanderous and scurrilous words against the
owners of the vessels; where the strikers used unnecessary and
obscene language or epithets to prevent other laborers to go to
work, and circulated libelous statements against the employer which
show actual malice;] where the protestors used abusive and
threatening language towards the patrons of a place of business or
against co- employees, going beyond the mere attempt to persuade
customers to withdraw their patronage; where the strikers formed a
human cordon and blocked all the ways and approaches to the
launches and vessels of the vicinity of the workplace and
perpetrated acts of violence and coercion to prevent work
from being performed; and where the strikers shook their fists and
threatened non-striking employees with bodily harm if they
persisted to proceed to the workplace. Permissible activities of the
picketing workers do not include obstruction of access of
customers. (Sukhothai Cuisine and Restaurant vs. Court of
Appeals,G.R. No. 150437 .July 17, 2006).

A strike may be regarded as invalid although the labor union has

complied with the strict requirements for staging one as provided in
Article 263 of the Labor Code when the same is held contrary to an
existing agreement, such as a no strike clause or conclusive
arbitration clause. Here, the CBA between the parties contained a
“no strike, no lockout” provision that enjoined both the Union and
the Company from resorting to the use of economic weapons
available to them under the law and to instead take recourse to
voluntary arbitration in settling their disputes. No law or public
policy prohibits the Union and the Company from mutually waiving
their respective right to strike and lockout, which are otherwise
available to them under the law, in favor of voluntary arbitration.
(C. Alcantara & Sons, Inc. vs. Court of Appeals /
Nagkahiusang Mamumuno sa Alsons- SPFL (NAMAAL-SPFL),
et al. vs. C. Alcantara & Sons, Inc. G.R. No. 155109/G.R. No.
155135/G.R. No. 179220, September 29, 2010).

Article 264(e) of the Labor Code prohibits any person engaged in

picketing from obstructing the free ingress to and egress from the
employer’s premises. Since respondent was found in the July 17,
1998 decision of the NLRC to have prevented the free entry into and
exit of vehicles from petitioner’s compound, respondent’s officers
and employees clearly committed illegal acts in the course of the
March 9, 1998 strike. The use of unlawful means in the course of a
strike renders such strike illegal. Therefore, pursuant to the
principle of conclusiveness of judgment, the March 9, 1998 strike
was ipso facto illegal. The filing of a petition to declare the strike
illegal was thus unnecessary. (Jackbilt Industries, Inc. Vs.
Jackbilt Employees Workers Union-Naflu-KMU, G.R. No.
171618-19, March 13, 2009).

A strike may be considered legal where the union believed that the
company committed ULP and the circumstances warranted such
belief in GF, although subsequently such allegations of ULP are
found out as not true.( Bacus v. Ople. G.R No. L‐56856, Oct.
23, 1984).

Even if no ULP acts are committed by the Er, if the Ees believe in GF
that ULP acts exist so as to constitute a valid ground to strike, then
the strike held pursuant to such belief may be legal. Where the
union believed that the Er committed ULP and the circumstances
warranted such belief in GF, the resulting strike may be
considered legal although, subsequently, such allegations of
ULP were found to be groundless. (NUWHRAIN‐Interim Junta v.
NLRC. G.R. No. 125561, Mar. 6, 1998)

The petitioners were charged with conducting an illegal strike, not a

mass leave, without specifying the exact acts that the company
considers as constituting an illegal strike or violative of company
policies. Such allegation falls short of the requirement in King of
Kings Transport, Inc. of “a detailed narration of the facts and
circumstances that will serve as basis for the charge against the
employees.” A bare mention of an “illegal strike” will not suffice.
Further, while Biomedica cites the provisions of the company policy
which petitioners purportedly violated, it failed to quote said
provisions in the notice so petitioners can be adequately informed of
the nature of the charges against them and intelligently file their
explanation and defenses to said accusations.( Alex Q. Naranjo, et
al. vs. Biomedica Health Care, Inc., et al. G.R. No. 193789.
September 19, 2012).

(a) Liability of Officers and Ordinary Workers

The law makes a distinction between union members and union
officers. A union member who merely participates in an illegal strike
may not be terminated from employment. It is only when he
commits illegal acts during a strike that he may be declared to have
lost employment status. In contrast, a union officer may be
terminated from employment for knowingly participating in an
illegal strike or participates in the commission of illegal acts during a
strike. The law grants the employer the option of declaring a union
officer who participated in an illegal strike as having lost his
employment. It possesses the right and prerogative to terminate
the union officers from service. (Visayas Community Medical
Center (VCMC) formerly known as Metro Cebu Commnunity
Hospital (MCCH) v. Erma Yballe, et al., G.R. No. 196156,
January 15, 2014).

A distinction exists between the ordinary workers’ liability for illegal

strike and that of the union officers who participated in it. The
ordinary worker cannot be terminated for merely participating in the
strike. There must be proof that he committed illegal acts during its
conduct. On the other hand, a union officer can be terminated upon
mere proof that he knowingly participated in the illegal strike.
Moreover, the participating union officers have to be properly
identified. In the present case, with respect to those union officers
whose identity and participation in the strike having been properly
established, the termination was legal. (Yolito Fadriquelan, et al.
vs. Monterey Foods Corporation/Monterey Foods Corporation
v. Bukluran ng mga Manggagawa sa Monterey-ILAW, et
al., G.R. No. 178409/G.R. No. 178434, June 8, 2011)
As a general rule, when just causes for terminating the services of
an employee exist, the employee is not entitled to separation pay
because lawbreakers should not benefit from their illegal acts. The
rule, however, is subject to exceptions. Here, not only did the Court
declare the strike illegal, rather, it also found the Union officers to
have knowingly participated in the illegal strike. Worse, the Union
members committed prohibited acts during the strike. Thus, as the
Court has concluded in other cases it has previously decided, such
Union officers are not entitled to the award of separation pay in the
form of financial assistance.

(C. Alcantara & Sons, Inc. vs. Court of Appeals, G.R. No.
155109/G.R. No. 155135/G.R. No. 179220. March 14, 2012).

Since the Union’s strike has been declared illegal, the Union officers
can be terminated from employment for their actions. This includes
the shop stewards who cannot be shielded from the coverage of
Article 264 of the Labor Code since the Union appointed them as
such and placed them in positions of leadership and power over the
men in their work units. As regards the rank and file Union
members, Article 264 provides that termination from employment is
not warranted by the mere fact that a union member has taken part
in an illegal strike. It must be shown that such union member,
clearly identified, performed an illegal act or acts during the strike.
The striking Union members allegedly committed the following
prohibited acts:

a. They threatened, coerced, and

intimidated non-striking employees,
officers, suppliers and customers;
 b. They obstructed the free ingress to
and egress from the company
premises; and

c. They resisted and defied the

implementation of the writ of
preliminary injunction issued against
the strikers.

The mere fact that the criminal complaints against them were
subsequently dismissed does not extinguish their liability under the
Labor Code. Nor does such dismissal bar the admission of the
affidavits, documents, and photos presented to establish their
identity and guilt during the hearing of the petition to declare the
strike illegal. (C. Alcantara & Sons, Inc. vs. Court of Appeals /
Nagkahiusang Mamumuno sa Alsons-SPFL (NAMAAL-SPFL),
et al. vs. C. Alcantara & Sons, Inc. G.R. No. 155109/G.R. No.
155135/G.R. No. 179220, September 29, 2010).

No backwages will be awarded to union members as a penalty for

their participation in the illegal strike. As for the union officers, for
knowingly participating in an illegal strike, the law mandates that a
union officer may be terminated from employment and they are not
entitled to any relief. (Gold City Integrated Port Services, Inc.
v. NLRC. G.R. No. 86000, Sep. 21, 1990).

Those union members who have joined an illegal strike but have not
committed any illegal act shall be reinstated but without back
wages.The responsibility for the illegal acts committed during the
strike must be on an individual and not on a collective basis. (First
City Interlink Transportation Co., Inc. v. Confesor G.R. No.
106316, May 5, 1997).

A mere finding of the illegality of a strike should not be

automatically followed by wholesale dismissal of the strikers from
their employment. While it is true that administrative agencies
exercising quasi‐judicial functions are free from the rigidities of
procedure, it is equally well‐settled that avoidance of technicalities
of law or procedure in ascertaining objectively the facts in each
case should not, however, cause denial of due process. (Bacus v.
Ople. G.R. No. L‐56856, Oct. 23, 1984).

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. (Telefunken
Semiconductors Ees Union‐FFW v. SLE. G.R. No. 122743 &
127215, Dec. 12, 1997).

b) Waiver of illegality of strike

When an employer accedes to the peaceful settlement brokered by
the NLRC by agreeing to accept all employees who had not yet
returned to work, it waives the issue of the illegality of the
strike. (Reformist Union v. NLRC. G.R. No. 120482, Jan.
27, 1997).

When management and union are in pari delicto, the contending

parties must be brought back to their respective positions before
the controversy; that is, before the strike. In this case,
management’s fault arose from the fact that a day after the union
filed a petition for certification election before the DOLE, it hit back
by requiring all its employees to undergo a compulsory drug test.
Indeed, the timing of the drug test was suspicious. Moreover,
management engaged in a runaway shop when it began pulling out
machines from the main building (AER building) to the compound
(AER-PSC premises) located on another street on the pretext that
the main building was undergoing renovation. On the other hand,
like management, the union and the affected workers were also at
fault for resorting to a concerted work slowdown and walking out of
their jobs in protest of their illegal suspension. It was also wrong for
them to have forced their way to the AER-PSC premises to try to
bring out the boring machines. Adding to the injury was the fact
that the picketing employees prevented the entry and exit of non-
participating employees and possibly AER’s clients to the premises.
Thus, the Supreme Court affirmed the ruling of the Court of
Appeals favoring the

reinstatement of all the complaining employees, including those who

tested positive for illegal drugs, without backwages. (Automotive
Engine Rebuilders, Inc. et al. v. Progresibong Unyon ng mga
Manggagawa sa AERG.R. No. 160138/G.R. No. 160192. July
13, 2011).

9. Injunctions

a) Requisites for labor injunctions

b) “Innocent bystander rule”

The innocent by stander must show:

1. Compliance with the grounds specified in

Rule 58 of the Rules of Court, and

2. That it is entirely different from, without

any connection whatsoever to, either
party to the dispute and, therefore, its
interests are totally foreign to the context
thereof. (MSF Tire & Rubber v. CA,
G.R. 128632, Aug. 5, 1999).

A party, by filing its 3rd party claim with the deputy sheriff, it
submitted itself to the jurisdiction of the NLRC acting through the
LA. The broad powers granted to the LA and to the NLRC by Art.
217, 218 and 224 of the LC can only be interpreted as vesting in
them jurisdiction over incidents arising from, in connection with or
relating to labor disputes, as the controversy under consideration,
to the exclusion of the regular courts. The RTC, being a co‐
equal body of the NLRC, has no jurisdiction to issue any restraining
order or injunction to enjoin the execution of any decision of the
latter. (Deltaventures v. Cabato. G.R. No. 118216, Mar. 9,
2000).

The concerted action taken by the members of the union in

picketing the premises of the department store, no matter how
illegal, cannot be regarded as acts not arising from a labor dispute
over which the RTCs may exercise jurisdiction. (Samahang
Manggagawa ng Liberty Commercial v. Pimentel G.R. No. L‐
78621, Dec. 2, 1987).