2.

COLLECTIVE BARGAINING

a. DUTY TO BARGAIN COLLECTIVELY

1. MEANING OF DUTY TO BARGAIN COLLECTIVELY.

The “duty to bargain collectively” means the performance of a

mutual obligation to meet and convene promptly and
expeditiously in good faith for the purpose of negotiating an
agreement with respect to wages, hours of work and all other
terms and conditions of employment, including proposals for
adjusting any grievances or questions arising under such agreement
and executing a contract incorporating such agreements if requested by
either party but such duty does not compel any party to agree to a
proposal or to make any concession.

The duty does not compel any party to agree blindly to a

proposal nor to make concession. While the law imposes on both the
employer and the bargaining union the mutual duty to bargain
collectively, the employer is not under any legal obligation to initiate
collective bargaining negotiations.

2. TWO (2) SITUATIONS CONTEMPLATED.

The duty to bargain collectively involves two (2) situations,

namely:

(1) Duty to bargain collectively in the absence of a CBA under

Article 251 of the Labor Code.

(2) Duty to bargain collectively when there is an existing

CBA under Article 253 of the Labor Code.
DUTY TO BARGAIN COLLECTIVELY WHEN THERE IS ABSENCE OF A
CBA

1. HOW DUTY SHOULD BE DISCHARGED WHEN THERE IS NO CBA

YET.

The duty to bargain collectively when there has yet been no CBA in
the bargaining unit where the bargaining agent seeks to operate
should be complied with in the following order:

First, in accordance with any agreement or voluntary

arrangement between the employer and the bargaining agent
providing for a more expeditious manner of collective bargaining; and

Secondly, in its absence, in accordance with the provisions of the

Labor Code, referring to Article 250 thereof which lays down the
procedure in collective bargaining.

DUTY TO BARGAIN COLLECTIVELY WHEN THERE IS A CBA

1. CONCEPT.

When there is a CBA, the duty to bargain collectively shall mean that
neither party shall terminate nor modify such agreement during its
lifetime. However, either party can serve a written notice to terminate
or modify the agreement at least sixty (60) days prior to its
expiration date. It shall be the duty of both 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 and/or until a new
agreement is reached by the parties.

2. FREEDOM PERIOD.

The last sixty (60) days of the 5-year lifetime of a CBA immediately
prior to its expiration is called the “freedom period.” It is denominated
as such because it is the only time when the law allows the parties to
freely serve a notice to terminate, alter or modify the existing CBA. It is
also the time when the majority status of the bargaining agent may be
challenged by another union by filing the appropriate petition for
certification election.

3. AUTOMATIC RENEWAL CLAUSE.

a. Automatic renewal clause deemed incorporated in all CBAs.

Pending the renewal of the CBA, the parties are bound to keep the
status quo and to treat the terms and conditions embodied therein still
in full force and effect during the 60-day freedom period and/or until a
new agreement is negotiated and ultimately concluded and reached by
the parties. This principle is otherwise known as the “automatic renewal
clause” which is mandated by law and therefore deemed incorporated in
all CBAs.

For its part, the employer cannot discontinue the grant of the benefits
embodied in the CBA which just expired as it is duty-bound to maintain
the status quo by continuing to give the same benefits until a renewal
thereof is reached by the parties. On the part of the union, it has to
observe and continue to abide by its undertakings and commitments
under the expired CBA until the same is renewed.

4. KIOK LOY DOCTRINE.

This doctrine is based on the ruling In Kiok Loy v. NLRC, 1 where the
petitioner, Sweden Ice Cream Plant, refused to submit any counter-
proposal to the CBA proposed by its employees’ certified bargaining
agent. The High Court ruled that the employer had thereby lost its right
to bargain the terms and conditions of the CBA. Thus, the CBA proposed
by the union was imposed lock, stock and barrel on the erring
company.

The Kiok Loy case epitomizes the classic case of negotiating a

CBA in bad faith consisting of the employer’s refusal to bargain
with the collective bargaining agent by ignoring all notices for
negotiations and requests for counter-proposals. Such refusal to send a
counter-proposal to the union and to bargain on the economic terms of
the CBA constitutes an unfair labor practice under Article 248(g) of the
Labor Code.

OTHER CASES AFTER KIOK LOY.

Divine Word University of Tacloban v. Secretary of Labor and

Employment, Sept. 11, 1992.
General Milling Corporation v. CA, Feb. 11, 2004.

b. COLLECTIVE BARGAINING AGREEMENT (CBA)

1. CBA.

A “Collective Bargaining Agreement” or “CBA” for short, refers to the

negotiated contract between a duly recognized or certified exclusive
bargaining agent of workers and their employer, concerning wages, hours
of work and all other terms and conditions of employment in the
appropriate bargaining unit, including mandatory provisions for grievances
and arbitration machineries. It is executed not only upon the request of
the exclusive bargaining representative but also by the employer.

2. ESSENTIAL REQUISITES OF COLLECTIVE BARGAINING.

Prior to any collective bargaining negotiations between the
employer and the bargaining union, the following requisites must
first be satisfied:

(1) Employer-employee relationship must exist between the

employer and the members of the bargaining unit being
represented by the bargaining agent;
 (2) The bargaining agent must have the majority support of
the members of the bargaining unit established through the
modes sanctioned by law; and

(3) A lawful demand to bargain is made in accordance with law.

3. SOME PRINCIPLES ON CBA.

CBA is the law between the parties during its lifetime and
thus must be complied with in good faith.

Being the law between the parties, any violation thereof

can be subject of redress in court.

Non-impairment of obligations of contract. A contract is

the law between the parties and courts have no choice but to
enforce such contract so long as it is not contrary to law,
morals, good customs or public policy. Otherwise, courts would
be interfering with the freedom of contract of the parties.

CBA is not an ordinary contract as it is impressed with public

interest.

Automatic Incorporation Clause – law is presumed part of

the CBA.

The benefits derived from the CBA and the law are separate
and distinct from each other.

Workers are allowed to negotiate wage increases

separately and distinctly from legislated wage increases.
The parties may validly agree in the CBA to reduce
wages and benefits of employees provided such
reduction does not go below the minimum standards.

Ratification of the CBA by majority of all the workers in the

bargaining unit makes the same binding on all employees
therein.
 Employees entitled to CBA benefits. The following are
entitled to the benefits of the CBA: (1) Members of the
bargaining union;

Non-members of the bargaining union but are members of

the bargaining unit;

Members of the minority union/s who paid agency fees to the

bargaining union; and

Employees hired after the expiration of the CBA.

Pendency of a petition for cancellation of union

registration is not a prejudicial question before CBA
negotiation may proceed.

CBA should be construed liberally. If the terms of a CBA

are clear and there is no doubt as to the intention of the
contracting parties, the literal meaning of its stipulation shall
prevail.

1. MANDATORY PROVISIONS OF CBA

1. MANDATORY STIPULATIONS OF THE CBA.

The Syllabus mentions 4 provisions that are mandatorily

required to be stated in the CBA, to wit:

a. Grievance Procedure;
b. Voluntary Arbitration;
c. No Strike-No Lockout Clause; and
d. Labor-Management Council (LMC).

If these provisions are not reflected in the CBA, its registration will
be denied by the BLR.
(i) GRIEVANCE PROCEDURE

1. “GRIEVANCE” OR “GRIEVABLE ISSUE”.

A “grievance” or “grievable issue” is any question raised by

either the employer or the union regarding any of the following issues
or controversies:

(1) The interpretation or implementation of the CBA;

(2) The interpretation or enforcement of company personnel
policies; or
(3) Any claim by either party that the other party is violating any
provisions of the CBA or company personnel policies.
In order to be grievable, the violations of the CBA should be
ordinary and not gross in character; otherwise, they shall be
considered as unfair labor practice (ULP).
Gross violation of the CBA is defined as flagrant and/or malicious
refusal by a party thereto to comply with the economic
provisions thereof. If what is violated, therefore, is a non-economic
or a political provision of the CBA, the same shall not be considered as
unfair labor practice and may thus be processed as a grievable issue in
accordance with and following the grievance machinery laid down in the
CBA.

2. GRIEVANCE MACHINERY.

“Grievance machinery” refers to the mechanism for the adjustment

and resolution of grievances arising from the interpretation or
implementation of a CBA and those arising from the interpretation or
enforcement of company personnel policies.

3. GRIEVANCE PROCEDURE.

“Grievance procedure” refers to the internal rules of procedure

established by the parties in their CBA with voluntary arbitration as the
terminal step, which are intended to resolve all issues arising from the
implementation and interpretation of their collective agreement. It is
that part of the CBA which provides for a peaceful way of settling
differences and misunderstanding between the parties.

The terms “grievance procedure” and “grievance machinery” may be

used interchangeably.

(ii) VOLUNTARY ARBITRATION

1. VOLUNTARY ARBITRATION.

“Voluntary arbitration” refers to the mode of settling labor-

management disputes in which the parties select a competent, trained
and impartial third person who is tasked to decide on the merits of the
case and whose decision is final and executory.

2. VOLUNTARY ARBITRATOR.

A “Voluntary Arbitrator” refers to any person who has been mutually

named or designated by the parties to the CBA – the employer and the
bargaining agent - to hear and decide the issues between them.

A Voluntary Arbitrator is not an employee, functionary or part of the

government or of the Department of Labor and Employment, but he is
authorized to render arbitration services provided under labor laws.

(iii) “NO STRIKE, NO LOCKOUT” CLAUSE

1. SIGNIFICANCE OF THE CLAUSE.

A “No Strike, No Lockout” clause in the CBA is an expression of the

firm commitment of the parties thereto that, on the part of the union, it
will not mount a strike during the effectivity of the CBA, and on the part
of the employer, that it will not stage a lockout during the lifetime
thereof.
 This clause may be invoked by an employer only when the strike is
economic in nature or one which is conducted to force wage or other
concessions from the employer that are not mandated to be granted
by the law itself. It does not bar strikes grounded on unfair labor
practices. This is so because it is presumed that all economic
issues between the employer and the bargaining agent are deemed
resolved with the signing of the CBA.

The same rule also applies in case of lockout. The said clause may only
be invoked by the union in case the ground for the lockout is economic
in nature but it may not be so cited if the ground is unfair labor
practice committed by the union.

2. EFFECT OF VIOLATION OF THE CLAUSE.

A strike conducted in violation of this clause is illegal.

(iv) LABOR-MANAGEMENT COUNCIL

1. CREATION OF LMC, CONSTITUTIONALLY AND LEGALLY

JUSTIFIED.
The Labor-Management Council (LMC) whose creation is mandated
under the Labor Code, is meant to implement the constitutionally
mandated right of workers to participate in policy and decision-
making processes of the establishment where they are employed
insofar as said processes will directly affect their rights, benefits and
welfare. This is the body that implements the policy of co-
determination in the Constitution.

The LMC is mandated to be created in both organized and unorganized

establishments.
2. SELECTION OF REPRESENTATIVES TO LMC.

In organized establishments, the workers’ representatives to the

committee or council should be nominated by the exclusive bargaining
representative.

In establishments where no legitimate labor organization exists,

the workers’ representative should be elected directly by the employees
at large.

3. LABOR-MANAGEMENT COUNCIL (LMC) VS.

GRIEVANCE MACHINERY (GM).

To avoid confusion and possible major legal complication, a clear

distinction line should be drawn between LMC and GM. The following may
be cited:

1. Constitutional origin. – The creation of the LMC is based on the

constitutional grant to workers of the right to participate in policy and
decision-making processes under the 1st paragraph, Section 3, Article
XIII of the 1987 Constitution, thus:

“It shall guarantee the rights of all workers to self-

organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike
in accordance with law. They shall be entitled to security
of tenure, humane conditions of work, and a living wage.
They shall also participate in policy and decision-
making processes affecting their rights and
benefits as may be provided by law.”

The creation of a GM, on the other hand, is based on a different

nd
constitutional provision, the 2 paragraph, Section 3, Article XIII of
the 1987 Constitution, which provides as follows:

“The State shall promote the principle of shared

responsibility between workers and employers and the
preferential use of voluntary modes in settling
 disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.”

2. Legal anchor. - The creation of LMC is provided under Article

255 of the Labor Code; while the formation of a GM is mandated under
Article 260 of the same Code.

3. Compulsory provision in the CBA. - Both LMC and GM are

compulsorily required to be embodied in the CBA in order for it to be
considered a valid agreement.

4. Purpose for creation. - The LMC is created for the purpose of

affording workers the right to participate in policy and decision-making
processes in matters affecting their rights, benefits and welfare; while
that of the GM is to resolve disputes and grievances arising from such
policies or decisions or more specifically, to adjust and resolve
grievances arising from (1) the interpretation or implementation of the
CBA or (2) the interpretation or enforcement of company personnel
policies.

5. Nature of functions. - The LMC is in the nature of a preventive

mechanism meant to prevent and avoid disputes or grievances by co-
determining the proper policies that should be implemented by the
employer in respect of the workers’ rights, benefits and welfare; while a
GM is an adjudicatory mechanism which is set into motion only when a
dispute or grievance occurs.

6. Nature of cognizable issues. – The LMC performs non-

adversarial and non-adjudicatory tasks as it concerns itself only with
policy formulations and decisions affecting the workers’ rights, benefits
and welfare and not violations or transgressions of any policy, rule or
regulation; while that of the GM is adversarial and adjudicatory in
character since its jurisdiction is confined to resolving and deciding
disputes and grievances between management and the workers arising
from violations or transgressions of existing policies, rules or
regulations. In other words, the LMC does not resolve grievable or
contentious issues; the GM does.
A case illustrative of this principle is the 2011 case of Cirtek
Employees Labor Union-Federation of Free Workers v. Cirtek
Electronics, Inc. The CBA negotiation between petitioner union and
respondent company was deadlocked resulting in the staging of a strike
by the former. The DOLE Secretary assumed jurisdiction over the labor
dispute but before he could rule on the controversy, respondent created
a Labor-Management Council (LMC) through which it concluded with
the remaining officers of petitioner a Memorandum of Agreement
(MOA) providing for daily wage increases of P6.00 per day effective
January 1, 2004 and P9.00 per day effective January 1,
2005. Petitioner submitted the MOA to the DOLE Secretary, alleging
that the remaining officers signed the MOA under respondent’s
assurance that should the Secretary order a higher award of wage
increase, respondent would comply.

Respecting the MOA, petitioner posits that it was “surreptitiously

entered into [in] bad faith,” it having been forged without the
assistance of the Federation of Free Workers or counsel, adding that
respondent could have waited for the Secretary’s resolution of the
pending CBA deadlock or that the MOA could have been concluded
before representatives of the DOLE Secretary. As found by the DOLE
Secretary, the MOA came about as a result of the constitution, at
respondent's behest, of the LMC which, he reminded the parties, should
not be used as an avenue for bargaining but for the purpose of
affording workers to participate in policy and decision-making. Hence,
the agreements embodied in the MOA were not the proper subject of
the LMC deliberation or procedure but of CBA negotiations and,
therefore, deserving little weight.

7. Composition. - The representatives of the workers to the LMC

may or may not be nominated by the recognized or certified bargaining
agent, depending on whether the establishment is organized or
unorganized. Thus, in organized establishments, the workers’
representatives to the LMC should be nominated by the exclusive
bargaining agent. In establishments where no legitimate labor
organization exists, the workers’ representatives should be elected
directly by the employees of the establishment at large; while those
in the GM are nominated solely by the bargaining agent.
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 Life 4 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

_________________________

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. (Merriam-Webster's Dictionary of Law, 1st ed., Merriam-Webster,
Inc., 1996. ISBN 0-87779-604-1; Visit also the Knowledge Encyclopedia at
http://www.referenceforbusiness.com/knowledge/ Featherbedding.html; Last visited:
Jan. 30, 2017).

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.
2. REQUISITES.

The requisites for featherbedding are as follows:

(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.4

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. 6

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.8

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.

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.

F. PEACEFUL CONCERTED ACTIVITIES

A. FORMS OF CONCERTED ACTIVITIES

1. FORMS OF CONCERTED ACTIVITIES.

There are three (3) forms of concerted activities, namely:

1. Strike;
2. Picketing; and
3. Lockout.
1. BY LABOR ORGANIZATION
(1) Strike; and

(2) Picketing.

1. STRIKE.
“Strike” means any temporary stoppage of work by the
concerted action of the employees as a result of an industrial or
labor dispute.

2. PICKETING.

“Picketing” is the act of workers in peacefully marching to and

fro before an establishment involved in a labor dispute generally
accompanied by the carrying and display of signs, placards and banners
intended to inform the public about the dispute.

1. LOCKOUT.

2. BY EMPLOYER

“Lockout” means the temporary refusal by an employer to

furnish work as a result of an industrial or labor dispute.

It consists of the following:

(1) Shutdowns;

(2) Mass retrenchment and dismissals initiated by the

employer.

(3) The employer’s act of excluding employees who are

union members.
a. REQUISITES FOR A VALID STRIKE

1. PROCEDURAL BUT MANDATORY REQUISITES FOR A VALID

STRIKE.

A strike, in order to be valid and legal, must conform to the

following procedural requisites:

1st requisite - It must be based on a valid and factual ground;

2nd requisite - A notice of strike must be filed with the NCMB-
DOLE;
3rd requisite - A notice must be served to the NCMB-DOLE at
least twenty-four (24) hours prior to the taking of
the strike vote by secret balloting, informing said
office of the decision to conduct a strike vote, and the
date, place, and time thereof;
4th requisite - A strike vote must be taken where a majority
of the members of the union obtained by secret
ballot in a meeting called for the purpose, must
approve it;
5th requisite - A strike vote report should be submitted to the
NCMB-DOLE at least seven (7) days before the
intended date of the strike;
6th requisite - Except in cases of union-busting, the cooling-
off period of 15 days, in case of unfair labor
practices of the employer, or 30 days, in case of
collective bargaining deadlock, should be fully
observed; and
7th requisite - The 7-day waiting period/strike ban reckoned
after the submission of the strike vote report to the
NCMB-DOLE should also be fully observed in all cases.

All the foregoing requisites, although procedural in nature, are

mandatory and failure of the union to comply with any of them would
render the strike illegal.
1. VALID GROUNDS.

I. FIRST REQUISITE:

EXISTENCE OF VALID AND FACTUAL GROUND/S

The law recognizes only 2 grounds in support of a valid strike,

viz.:

(1) Collective bargaining deadlock (Economic Strike); and/or

(2) Unfair labor practice (Political Strike).

A strike not based on any of these two grounds is illegal.

2. SOME PRINCIPLES ON
THE FIRST REQUISITE.

▪ Violation of CBA, except when gross, is not an unfair

labor practice, hence, may not be cited as ground for a valid
strike. Ordinary violation of a CBA is no longer treated as an
unfair labor practice but as a mere grievance which should be
processed through the grievance machinery and voluntary
arbitration.

▪ Inter-union or intra-union dispute is not a valid ground.

▪ Violation of labor standards is not a valid ground.

▪ Wage distortion is not a valid ground.

1. NOTICE OF STRIKE.

II. SECOND REQUISITE: FILING OF A NOTICE OF STRIKE

No labor organization shall declare a strike without first having

filed a notice of strike.

III. THIRD REQUISITE: SERVICE OF A 24-HOUR PRIOR

NOTICE

In Capitol Medical Center, Inc. v. NLRC, it was imposed as

additional requisite that a 24-hour notice must be served to the NCMB-
DOLE prior to the taking of the strike vote by secret balloting, informing
it of the union’s decision to conduct a strike vote as well as the date,
place, and time thereof.

IV. FOURTH REQUISITE: CONDUCT OF A STRIKE VOTE

1. MAJORITY APPROVAL OF THE STRIKE.

No labor organization shall declare a strike without the necessary

strike vote first having been obtained and reported to the NCMB-DOLE.
A decision to declare a strike must be approved by a majority of the
total union membership in the bargaining unit concerned, obtained by
secret ballot in meetings or referenda called for that purpose. This
process is called “strike vote balloting.”

A STRIKE WITHOUT THE MAJORITY SUPPORT OF THE

UNION MEMBERS IS CALLED A “WILDCAT STRIKE.”

2. PURPOSE.

The purpose of a strike vote is to ensure that the decision to

strike broadly rests with the majority of the union members in general
and not with a mere minority.
3. DURATION OF THE VALIDITY OF THE MAJORITY APPROVAL OF A
STRIKE.

The majority decision to stage a strike is valid for the duration

of the dispute based on substantially the same grounds considered
when the strike vote was taken.

V. FIFTH REQUISITE: SUBMISSION OF THE STRIKE VOTE TO

NCMB-DOLE

1. PURPOSE FOR REQUIRING A STRIKE VOTE REPORT.

The evident intention of the law in mandatorily requiring the
submission of the strike vote report is to afford the NCMB of
opportunity to verify the truth and veracity of the majority vote by
the union members in support of the intended strike.

2. WHEN TO SUBMIT THE STRIKE VOTE REPORT.

The strike vote report should be submitted to the NCMB-DOLE

at least seven (7) days before the actual staging of the intended
strike, subject to the observance of the cooling-off periods provided
under the law.

VI. SIXTH REQUISITE: OBSERVANCE OF THE COOLING-OFF

PERIOD

1. GENERAL RULE.

The cooling-off periods provided under the law before the

intended date of the actual mounting of the strike are as follows:

1. In case of bargaining deadlock, the cooling-off period is

thirty (30) days from the filing of the notice of strike; or
2. In case of unfair labor practice, the cooling-off period is
fifteen (15) days from the filing of the notice of strike.
2. EXCEPTION: IN CASE OF UNION-BUSTING.

In case of dismissal from employment of union officers (not

ordinary members) duly elected in accordance with the union
constitution and by-laws which may constitute union-busting because
the existence of the union is threatened by reason of such dismissal,
the 15-day cooling-off period does not apply and the union may
take action immediately after the strike vote is conducted and the
results thereof duly submitted to the regional branch of the NCMB.

In cases of union-busting, only the 15-day cooling-off period

need not be observed; all the other requisites must be fully complied
with.

3. RECKONING OF THE COOLING-OFF PERIODS.

The start of the cooling-off periods should be reckoned from the

time the notice of strike is filed with the NCMB-DOLE, a copy
thereof having been served on the other party concerned.

4. PURPOSE OF THE COOLING-OFF PERIODS.

The purpose of the cooling-off periods is to provide an

opportunity for mediation and conciliation of the dispute by the NCMB-
DOLE with the end in view of amicably settling it.

VII. SEVENTH REQUISITE: 7-DAY WAITING PERIOD OR

STRIKE BAN

1. PURPOSE OF THE 7-DAY WAITING PERIOD OR STRIKE BAN.

The seven (7) day waiting period is intended to give the NCMB-
DOLE an opportunity to verify whether the projected strike really
carries the approval of the majority of the union members.
2. WAITING PERIOD/STRIKE BAN VS. COOLING-OFF PERIOD.

The 7-day waiting period or strike ban is a distinct and separate

requirement from the cooling-off period prescribed by law. The latter
cannot be substituted for the former and vice-versa.

The cooling-off period is counted from the time of the filing of the
notice of strike. The 7-day waiting period/strike ban, on the other hand,
is reckoned from the time the strike vote report is submitted to the
NCMB- DOLE.

Consequently, a strike is illegal for failure to comply with the

prescribed mandatory cooling-off period and the 7-day waiting
period/strike ban after the submission of the report on the strike vote.

3. BOTH MUST BE COMPLIED WITH SEPARATELY AND DISTINCTLY

FROM EACH OTHER.

The requirements of cooling-off period and 7-day waiting

period/strike ban must both be complied with. The labor union may
take the strike vote and report the same to the NCMB-DOLE within the
statutory cooling-off period. In this case, the 7-day waiting period/strike
ban should be counted from the day following the expiration of the
cooling-off period. A contrary view would certainly defeat and render
nugatory the salutary purposes behind the distinct requirements of
cooling-off period and the waiting period/strike ban.

The NCMB Primer on Strike, Picketing and Lockout,1 issued by

the NCMB, the agency of government directly tasked with the
implementation and enforcement of this particular legal provision and
requirement, is very clear on this point, thus:

“In the event the result of the strike/lockout

vote 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.”2
 In other words, the seven (7) days should be added to the
cooling-off period of fifteen (15) days, in case of unfair labor practice, or
thirty (30) days, in case of collective bargaining deadlock and it is only
after the lapse of the total number of days after adding the two (2)
periods that the strike/lockout may be lawfully and validly staged.

While there was no categorical declaration on this point, the

Supreme Court, in holding in the 2010 case of Phimco Industries,
Inc. v. Phimco Industries Labor Association (PILA),3 that
respondents fully satisfied the legal procedural requirements, noted
that the strike notice grounded on collective bargaining deadlock was
filed on March 9, 1995. Consequently, the 30-day cooling-off period
would have lapsed on April 9, 1995. The strike vote was reached on
March 16, 1995 and the notification thereof was filed with the DOLE on
March 17, 1995 or well within the cooling-off period. Based on the said
rule in the NCMB Primer, the strike could only be validly staged starting
from April 17, 1995 and onwards, i.e., after the lapse of 7 days from
April 9, 1995. Hence, since the actual strike was launched only on
April 25, 1995, there was clearly full compliance with the requisites.

Example: In a case where the notice of strike grounded on ULP

is filed on October 1, 2015, and the strike vote is taken within the
cooling-off period, say, on October 5, 2015 and the strike vote report
showing majority support for the intended strike is submitted to the
NCMB-DOLE the following day, October 6, 2015, the question is when
can the union legally stage the strike?

Following the above principle, the answer obviously is on

October 24, 2015 or any day thereafter. This is so because the 15-
day cooling-off period for ULP expires on October 16 and adding the 7-
day strike ban which “should be counted from the day following the
expiration of the cooling-off period,” the 7th day would be on
October 23, 2015. Obviously, the strike cannot be conducted on the 7th
day but rather after the lapse thereof; hence, it is only on October 24,
2015 and onwards that the union may lawfully conduct the strike.
4. SOME PRINCIPLES ON COOLING-OFF PERIOD AND 7-DAY
WAITING PERIOD.

▪ Deficiency of even one (1) day of the cooling-off period and 7-

day strike ban is fatal.
▪ One-day strike without complying with the 7-day strike ban is
illegal.

b. REQUISITES FOR A VALID LOCKOUT

1. SUBSTANTIALLY SIMILAR REQUISITES AS IN STRIKE.

The seven (7) requisites for a valid strike discussed above do not
apply to picketing.

2. REQUISITES FOR LAWFUL PICKETING.

The most singular requirement to make picketing valid and legal
is that it should be peacefully conducted. Based on the foregoing
provision, the requisites may be summed up as follows:

(1) The picket should be peacefully carried out;

(2) There should be no act of violence, coercion or intimidation

attendant thereto;

(3) The ingress to (entrance) or egress from (exit) the

company premises should not be obstructed; and

(4) Public thoroughfares should not be impeded.

3. RIGHT TO PICKET IS PROTECTED BY THE CONSTITUTION AND

THE LAW.

Unlike a strike which is guaranteed under the Constitutional

provision on the right of workers to conduct peaceful concerted activities
under Section 3, Article XIII thereof, the right to picket is
guaranteed under the freedom of speech and of expression and
to peaceably assemble to air grievances under Section 4, Article III
(Bill of Rights) thereof.

4. EFFECT OF THE USE OF FOUL LANGUAGE DURING THE CONDUCT

OF THE PICKET.

In the event the picketers employ discourteous and impolite

language in their picket, such may not result in, or give rise to, libel or
action for damages.

5. PICKETING VS. STRIKE.

(1) 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.

(2) 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 being picketed.

(3) A picket simply means to march to and fro in front of 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 but one strike activity separate and different
from the actual stoppage of work.

Phimco Industries, Inc. v. Phimco Industries Labor

Association (PILA). - While the right of
employees to publicize their dispute falls within the protection of
freedom of expression and the right to peaceably assemble to air
grievances, these rights are by no means absolute. Protected
picketing does not extend to blocking ingress to and egress
from the company premises. That the picket was moving, was
peaceful and was not attended by actual violence may not free it
from taints of illegality if the picket effectively blocked entry to
and exit from the company premises.

6. WHEN PICKET CONSIDERED A STRIKE.

In distinguishing between a picket and a strike, the totality of the

circumstances obtaining in a case should be taken into account.

Santa Rosa Coca-Cola Plant Employees Union v. Coca-Cola

Bottlers Phils., Inc.2 - Petitioners contend that what they conducted
was a mere picketing and not a strike. In disagreeing to this contention,
the High Court emphasized that it is not an issue in this case that there
was a labor dispute between the parties as petitioners had notified the
respondent of their intention to stage a strike, and not merely to picket.
Petitioners’ insistence to stage a strike is evident in the fact that an
amended notice of strike was filed even as respondent moved to dismiss
the first notice. The basic elements of a strike are present in this case:
106 members of petitioner Union, whose respective applications for
leave of absence on September 21, 1999 were disapproved, opted not
to report for work on said date, and gathered in front of the company
premises to hold a mass protest action. Petitioners deliberately absented
themselves and instead wore red ribbons and carried placards with
slogans such as: “YES KAMI SA STRIKE,” “PROTESTA KAMI,” “SAHOD,
KARAPATAN NG MANGGAGAWA IPAGLABAN,” “CBA-’WAG BABOYIN,”
“STOP UNION BUSTING.” They marched to and fro in front of the
company’s premises during working hours. Thus, petitioners engaged in
a concerted activity which already affected the company’s operations.
The mass concerted activity obviously constitutes a strike. Moreover,
the bare fact that petitioners were given a Mayor’s permit is not
conclusive evidence that their action/activity did not amount to a strike.
The Mayor’s description of what activities petitioners were allowed to
conduct is inconsequential. To repeat, what is definitive of whether the
action staged by petitioners is a strike and not merely a picket is the
totality of the circumstances surrounding the situation.

Petitioner union in the 2011 case of Leyte Geothermal

Power Progressive Employees Union-ALU- TUCP v. Philippine
National Oil Company – Energy Development Corporation,1
contends that there was no stoppage of work; hence, they did not
strike. Euphemistically, petitioner union avers that it “only engaged in
picketing,” and maintains that “without any work stoppage, [its officers
and members] only engaged in xxx protest activity.” The Supreme
Court, however, ruled that it was a strike and not picketing or protest
activity that petitioner union staged. It found the following
circumstances in support of such finding:

(1) Petitioner union filed a Notice of Strike on December 28,

1998 with the DOLE grounded on respondent’s purported unfair
labor practices, i.e., “refusal to bargain collectively, union busting
and mass termination.” On even date, petitioner Union declared
and staged a strike.

(2) The DOLE Secretary intervened and issued a Return-to-Work

Order dated January 4, 1999, certifying the labor dispute to the
NLRC for compulsory arbitration. The Order indicated the following
facts: (1) filing of the notice of strike; (2) staging of the strike
and taking control over respondent’s facilities of its Leyte
Geothermal Project on the same day petitioner union filed the
notice of strike; (3) attempts by the NCMB to forge a mutually
acceptable solution proved futile; (4) in the meantime, the strike
continued with no settlement in sight placing in jeopardy the
supply of much needed power supply in the Luzon and Visayas
grids.

(3) Petitioner union itself, in its pleadings, used the word “strike.”

(4) Petitioner union’s asseverations are belied by the factual findings

of the NLRC, as affirmed by the CA thus: “The failure to comply
with the mandatory requisites for the conduct of strike is both
admitted and clearly shown on record. Hence, it is undisputed that
no strike vote was conducted; likewise, the cooling-off period was
not observed and that the 7-day strike ban after the submission of
the strike vote was not complied with since there was no strike
vote taken.”
 In fine, petitioner union’s bare contention that it did not hold a
strike cannot trump the factual findings of the NLRC that petitioner
union indeed struck against respondent. In fact, and more importantly,
petitioner union failed to comply with the requirements set by law prior
to holding a strike.

d. WHEN IS A STRIKE CONSIDERED ILLEGAL?

A strike is illegal if
it is declared and
staged:

(1) Without complying with the procedural but mandatory

requisites (See 7 requisites above).

(2) For unlawful purpose such as to compel the dismissal of an

employee or to force recognition of the union or for trivial and
puerile purpose or to circumvent contracts and judicial orders.

(3) Based on non-strikeable or invalid grounds such as:

a. Inter-union or intra-union disputes.

b. Simple violation of CBA in contrast to gross

violation thereof which is deemed ULP.

c. Violation of labor standards.

d. Legislated wage orders (wage distortion).

(4) Without first having bargained collectively.

(5) In violation of the “no strike, no lockout” clause in the CBA.

(6) Without submitting the issues to the grievance machinery or

voluntary arbitration or failing to exhaust the steps provided
therein.
(7) While conciliation and mediation proceeding is on-going at the
NCMB.

(8) Based on issues already brought to voluntary or compulsory

arbitration.

(9) During the pendency of a case involving the same ground/s cited in
the notice of strike.

(10) In defiance of an assumption or certification or return-to-work

order.

(11) In violation of a temporary restraining order or an injunction order.

(12) After the conversion of the notice of strike into a preventive

mediation case.

(13) Against the prohibition by law.

(14) By a minority union.

(15) By an illegitimate union.

(16) By dismissed employees.

(17) In violation of the company code of conduct which prohibits

“inciting or participating in riots, disorders, alleged strikes or
concerted actions detrimental to [Toyota’s] interest,” The penalty
for which is dismissal.

(18) As protest rallies in front of government offices such as in the

following cases:

Toyota Motor Phils. Corp. Workers Association

[TMPCWA] v. NLRC,1 where the Supreme Court ruled that
the protest rallies staged by the employees from February 21
to 23, 2001 in front of the offices of the Bureau of Labor
 Relations (BLR) and the DOLE Secretary constitute illegal
strike and not legitimate exercise of their right to peaceably
assemble and petition the government for redress of
grievances. It was illegal for having been undertaken without
satisfying the mandatory pre-requisites for a valid strike
under Article 263 of the Labor Code.

The ruling in Toyota was cited in Solidbank Corporation

v. Gamier, as basis in declaring the protest action of the
employees of petitioner Solidbank which was staged in front of
the Office of the DOLE Secretary in Intramuros, Manila, as
constitutive of illegal strike since it paralyzed the
operations of the bank. The protest action in this case was
conducted because of the CBA deadlock.

19) As welga ng bayan which is in the nature of a general

strike as well as an extended sympathy strike.

3. ASSUMPTION OF JURISDICTION (BY THE DOLE SECRETARY OR

ALTERNATIVELY, AT HIS DISCRETION, CERTIFICATION OF THE
LABOR DISPUTE TO THE NLRC FOR COMPULSORY ARBITRATION)

1. WHEN DOLE SECRETARY MAY ASSUME OR CERTIFY A LABOR

DISPUTE.

Article 278(g) [263(g)] of the Labor Code provides that when in

the opinion of the DOLE Secretary, the labor dispute causes or
will likely to cause a strike or lockout in an industry
indispensable to the national interest, he is empowered to do either
of 2 things:

(1) He may assume jurisdiction over the labor dispute and decide it
himself; or

(2) He may certify it to the NLRC for compulsory arbitration, in

which case, it will be the NLRC which shall hear and decide it.
 This power may be exercised by the DOLE Secretary even
before the actual staging of a strike or lockout since Article
278(g) [263(g)] does not require the existence of a strike or lockout
but only of a labor dispute involving national interest.

2. WHAT CONSTITUTES A NATIONAL INTEREST CASE?

The Labor Code vests in the DOLE Secretary the discretion to

determine what industries are indispensable to the national interest.
Accordingly, upon the determination by the DOLE Secretary that such
industry is indispensable to the national interest, he has authority to
assume jurisdiction over the labor dispute in the said industry or certify
it to the NLRC for compulsory arbitration.

Past issuances of the DOLE Secretary have not made nor

attempted to mention specifically what the industries indispensable to
the national interest are. It was only in Department Order No. 40-H-13,
Series of 2013, that certain industries were specifically named, thus:

“Section 16. Industries Indispensable to

the National Interest. – For the guidance of the
workers and employers in the filing of petition for
assumption of jurisdiction, the following industries/
services are hereby recognized as deemed indispensable
to the national interest:

(1) Hospital sector;

(2) Electric power industry;
(3) Water supply services, to exclude
small water supply services such as
bottling and refilling stations;
(4) Air traffic control; and
(5) Such other industries as may be recommended
by the National Tripartite Industrial Peace
Council (TIPC).”
 Obviously, the above enumerated industries are not exclusive as
other industries may be considered indispensable to the national interest
based on the appreciation and discretion of the DOLE Secretary or as
may be recommended by TIPC.

3. DIFFERENT RULE ON STRIKES AND LOCKOUTS IN

HOSPITALS, CLINICS AND MEDICAL INSTITUTIONS.

As a general rule, strikes and lockouts in hospitals, clinics and

similar medical institutions should be avoided. In case a strike
or lockout is staged, it shall be the duty of the striking union or
locking-out employer to provide and maintain an effective skeletal
workforce of medical and other health personnel whose movement
and services shall be unhampered and unrestricted as are
necessary to insure the proper and adequate protection of the life
and health of its patients, most especially emergency cases, for
the duration of the strike or lockout.

The DOLE Secretary may immediately assume, within twenty four

(24) hours from knowledge of the occurrence of such a strike or
lockout, jurisdiction over the same or certify it to the NLRC for
compulsory arbitration.

4. SOME PRINCIPLES ON ASSUMPTION/CERTIFICATION

POWER OF THE DOLE SECRETARY.

▪ Prior notice and hearing are not required in the issuance

of the assumption or certification order.

▪ The DOLE Secretary may seek the assistance of law enforcement

agencies like the Philippine National Police to ensure compliance with
the provision thereof as well as with such orders as he may issue to
enforce the same.
5. RETURN-TO-WORK ORDER.

a. It is a STATUTORY PART AND PARCEL of

assumption/certification order even if not expressly
stated therein.
The moment the DOLE Secretary assumes jurisdiction over a
labor dispute involving national interest or certifies it to the NLRC for
compulsory arbitration, such assumption or certification has the effect of
automatically enjoining the intended or impending strike or, if one has
already been commenced, of automatically prohibiting its continuation.
The mere issuance of an assumption or certification order automatically
carries with it a return-to-work order, even if the directive to return to
work is not expressly stated therein. It is thus not necessary for the
DOLE Secretary to issue another order directing the strikers to return to
work.
It is error therefore for striking workers to continue with their
strike alleging absence of a return-to-work order since Article 263(g) is
clear that once an assumption/certification order is issued, strikes are
enjoined or, if one has already taken place, all strikers should
immediately return to work.

b. Nature of return-to-work order.

Return-to-work order is compulsory and immediately

executory in character. It should be strictly complied with by the
parties even during the pendency of any petition questioning its
validity in order to maintain the status quo while the determination is
being made. Filing of a motion for reconsideration does not affect
the enforcement of a return-to-work order which is immediately
executory.

c. Some principles on return-to-work order.

▪ The issue of legality of strike is immaterial in enforcing the

return-to-work order.
 ▪ Upon assumption or certification, the parties should revert to
the status quo ante litem which refers to the state of things
as it was before the labor dispute or the state of affairs existing
at the time of the filing of the case. It is the last actual,
peaceful and uncontested status that preceded the actual
controversy.

▪ To implement the return-to-work order, the norm is

actual reinstatement. However, payroll reinstatement
in lieu of actual reinstatement may properly be resorted to
when special circumstances exist that render actual
reinstatement impracticable or otherwise not conducive to
attaining the purposes of the law.

E
x
a
m
p
l
e
:

University of Sto. Tomas v. NLRC, where the teachers

ordered to return to work could not be given back their
academic assignments since the return-to-work order of the
DOLE Secretary was issued in the middle of the first semester
of the academic year. The Supreme Court affirmed the validity
of the payroll reinstatement order of the NLRC and ruled that
the NLRC did not commit grave abuse of discretion in providing
for the alternative remedy of payroll reinstatement. It observed
that the NLRC was only trying its best to work out a satisfactory
ad hoc solution to a festering and serious problem.

3
.
 1
.
NATURE OF
ASSUMPTION
ORDER OR
CERTIFICATION
ORDER

1. A POLICE POWER MEASURE.

The power to issue assumption or certification orders is an

extraordinary authority granted to the
President and to his alter ego, the DOLE Secretary, the exercise of
which should be strictly limited to national
interest cases. It 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.

3.2. EFFECT OF DEFIANCE OF ASSUMPTION OR CERTIFICATION

ORDERS ON EMPLOYMENT OF DEFIANT WORKERS

1. DEFIANCE OF THE ORDER, A VALID GROUND TO DISMISS.

The defiance by the union, its officers and members of the Labor
Secretary's assumption of jurisdiction or certification order constitutes a
valid ground for dismissal.

The following are the justifications:

(1) A strike that is undertaken after the issuance by the

DOLE Secretary of an assumption or certification order
becomes a prohibited activity and thus illegal.
The defiant striking union officers and members, as
a result, are deemed to have lost their employment
status for having knowingly participated in an illegal
strike.

(2) From the moment a worker defies a return-to-work order,

he is deemed to have abandoned his job.

(3) By so defying, the workers have forfeited their right to

be readmitted to work.

2. ALL DEFIANT STRIKERS, REGARDLESS OF WHETHER THEY

ARE OFFICERS OR ORDINARY MEMBERS, ARE DEEMED
DISMISSED.
Once the DOLE Secretary assumes jurisdiction over a labor
dispute or certifies it to the NLRC for compulsory arbitration, such
jurisdiction should not be interfered with by the application of the
coercive processes of a strike or lockout. Any defiance thereof is a valid
ground for the loss of employment status.

3. PERIOD OF DEFIANCE OF THE RETURN-TO-WORK ORDER, NOT

MATERIAL.

The length of time within which the return-to-work order was defied by
the strikers is not significant in determining their liability for the legal
consequences thereof. The following cases are illustrative of this rule:

a. University of San Agustin Employees’ Union-FFW v. The CA.1

- The period of defiance was less than nine (9) hours from 8:45
a.m. to 5:25 p.m. on September 19, 2003.

b. Federation of Free Workers v. Inciong. 2 - The period of

defiance was only nine (9) days.

4. SOME PRINCIPLES ON DEFIANCE OF THE

ASSUMPTION/CERTIFICATION ORDER.

▪ The assumption/certification order may be served at any time of

the day or night.

▪ No practice of giving 24 hours to strikers within which to

return to work. There is no law or jurisprudence recognizing this
practice.

▪ The defiant strikers could be validly replaced.

▪ The refusal to acknowledge receipt of the

assumption/certification orders and other processes is an
apparent attempt to frustrate the ends of justice, hence, invalid. The
union cannot be allowed to thwart the efficacy of the said orders
issued in the national interest through the simple expediency of
refusing to acknowledge receipt thereof.
3.3.
LIABILITY OF UNION OFFICERS FOR DECLARATION OF ILLEGALITY
OF STRIKE

3.4. LIABILITY OF ORDINARY WORKERS FOR COMMISSION OF

ILLEGAL ACTS IN THE COURSE OF STRIKE

1. PARTICIPATION IN LAWFUL STRIKE.

An employee who participates in a lawful strike is not deemed

to have abandoned his employment. Such participation should not
constitute sufficient ground for the termination of his employment even
if a replacement has already been hired by the employer during such
lawful strike.

2. PARTICIPATION IN ILLEGAL STRIKE.

a. Distinction in the liability between union officers and
ordinary union members.
1. Union officers.

The mere declaration of illegality of the strike will result in the

termination of all union officers who knowingly participated in
the illegal strike. Unlike ordinary members, it is not required, for
purposes of termination, that the officers should commit an illegal act
during the strike.

However, absent any showing that the employees are union

officers, they cannot be dismissed based solely on the illegality
of the strike.

To illustrate how the “knowing participation” of union officers may be

ascertained and established, the following factors were taken into
account in another 2011 case, Abaria v. NLRC,1 which led to the
declaration that they knowingly participated in the illegal strike:

(1) Their persistence in holding picketing activities despite the

declaration by the NCMB that their union was not duly registered
 as a legitimate labor organization and notwithstanding the letter
from the federation’s legal counsel informing them that their acts
constituted disloyalty to the national federation; and

(2) Their filing of the notice of strike and conducting a strike vote
despite the fact that their union has no legal personality to
negotiate with their employer for collective bargaining purposes.

2. Ordinary union members.

The mere finding or declaration of illegality of a strike will not

result in termination of ordinary union members. For an ordinary union
member to suffer termination, it must be shown by clear evidence that
he has committed illegal acts during the strike.

b. Reason for the distinction.

The reason for this distinction is that the union officers have the
duty to guide their members to respect the law. If instead of doing
so, the officers urged the members to violate the law and defy the
duly constituted authorities, their dismissal from the service is a just
penalty or sanction for their unlawful act. Their responsibility as main
players in an illegal strike is greater than that of the ordinary union
members and, therefore, limiting the penalty of dismissal only to the
former for their participation in an illegal strike is in order.

c. Some principles on illegality of a strike.

▪ The fact that the employees are signatories to the CBA

does not in itself sufficiently establish their status as union
officers during the illegal strike. Neither were their active roles
during the bargaining negotiations be considered as evidence
of their being union officers.

▪ Only the union officers during the period of illegal

strike are liable. If the employees acted as union officers
after the strike, they may not be held liable and, therefore,
could not be terminated in their capacity as such.
 ▪ Shop stewards are union officers. Hence, they should
be terminated upon the declaration of the illegality of the
strike.

▪ Union officers may be dismissed despite the fact that

the illegal strike was staged only for 1 day or even for
less than 10 hours. This holds true in cases of defiance of
the assumption/ certification order issued in national interest
cases.

▪ If the dispositive portion of the decision failed to

mention the names of union officers, resort should be
made to the text of the decision.

▪ No wholesale dismissal of strikers allowed. The

employer cannot just unceremoniously dismiss a hundred of
its employees in the absence of clear and convincing proof
that these people were indeed guilty of the acts charged and
then, afterwards, go to court to seek validation of the
dismissal it whimsically executed. That certainly cannot be
allowed.

3. PARTICIPATION IN THE COMMISSION OF

ILLEGAL ACTS DURING A STRIKE.

a. Legality or illegality of strike, immaterial.

As far as liability for commission of illegal acts during the strike is

concerned, the issue of legality or illegality of the strike is irrelevant.
As long as the union officer or member commits an illegal act in
the course of the strike, be it legal or illegal, his employment can
be validly terminated.
b. Meaning of “illegal acts.”

The term “illegal acts” under Article 264(a) may encompass a

number of acts that violate existing labor or criminal laws, such as the
following:

(1) Violation of Article 264(e) of the Labor Code which provides that
“[n]o person engaged in picketing shall commit any act of
violence, coercion or intimidation or obstruct the free ingress to or
egress from the employer’s premises for lawful purposes, or
obstruct public thoroughfares.”

(2) Commission of crimes and other unlawful acts in carrying out the
strike.

(3) Violation of any order, prohibition, or injunction issued by

the DOLE Secretary or NLRC in connection with the assumption
of jurisdiction or certification order under Article 263(g) of the
Labor Code.

This enumeration is not exclusive as jurisprudence abounds

where the term “illegal acts” has been interpreted and construed to
cover other breaches of existing laws.

Liability for illegal acts should be determined on an individual

basis. For this purpose, the individual identity of the union members
who participated in the commission of illegal acts may be proved thru
affidavits and photographs. Simply referring to them as “strikers,”
or “complainants in this case” is not enough to justify their
dismissal.
d. Some principles on commission of illegal acts in the course of
the strike.

▪ Only members who are identified as having

participated in the commission of illegal acts are liable.
Those who did not participate should not be blamed therefor.

• To effectively hold ordinary union members liable, those who

participated in the commission of illegal acts must not only
be identified but the specific illegal acts they each
committed should be described with particularity.

▪ If violence was committed by both employer and

employees, the same cannot be cited as a ground to declare
the strike illegal.

------------oOo------------