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LABOR RELATIONS

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION


Article. 260. Grievance machinery and voluntary arbitration. - The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or panel of Arbitrators has been selected by the parties as described above.

1 Provisions of the CBA subject to grievance machinery: (1) Economic provisions have direct and measurable monetary cost and consequences such as wage rates, paid vacations, pensions, health and welfare plans, and other fringe benefits. (2) Non-economic provisions monetary costs cannot be directly computed such as the no-strike-no-lockout, union security, management security, check-off clauses, or grievance procedures. Establishment of Grievance Committee In the absence of applicable provision in the CBA, a grievance committee shall be created within 10 days from signing of the collective bargaining agreement. The committee shall be composed of at least two representatives each from the members of the bargaining unit and the employer, unless otherwise agreed upon by the parties. The representatives from among the members of the bargaining unit shall be designated by the union. Initiation of grievance: (1) Grievances are ordinarily brought by the aggrieved employees usually with the union representative called the shop steward or grievance officer, to the foreman either orally or in writing. However, this does not mean that an individual employee or group of employees cannot present a grievance directly to their employer. Whoever is aggrieved may bring his grievance to the grievance machinery. (2) Generally, employers cannot initiate grievance. However, the right granting the employer to initiate grievance may be included in the CBA to resolve a question over a vague or indefinite provision of the CBA. Procedure in handling grievances In the absence of a specific provision in the CBA or existing company practice prescribing for the procedures in handling grievance, the following shall apply: (a) An employee shall present this grievance or complaint orally or in writing to the shop steward. Upon receipt thereof, the shop steward shall verify the facts and determine whether or not the grievance is valid. (b) If the grievance is valid, the shop steward shall immediately bring the complaint to the employee's immediate supervisor. The shop steward, the employee and his immediate supervisor shall exert efforts to settle the grievance at their level. (c) If no settlement is reached, the grievance shall be referred to the grievance committee which shall have 10 days to decide the case. Where the issue involves or arises from the interpretation or implementation of a provision in the collective bargaining agreement, or from any order, memorandum, circular or assignment issued by the appropriate authority in the establishment, and such issue cannot be resolved at the level of the shop steward or the supervisor, the same may be referred immediately to the grievance committee. Submission to Voluntary Arbitration Unresolved grievances will be referred to voluntary arbitration; and for this purpose, either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration. The notice shall state the issue or issues to be arbitrated, copy thereof furnished the board or the voluntary arbitrator or panel of VAs named or designated in the CBA. If the party upon whom the notice is served fails or refuses to respond favorably within 7 days from receipt thereof, the VA or panel of VAs designated in the CBA shall commence voluntary arbitration proceedings. Where the CBA does not so designate, the NCMB shall call the parties and appoint a VA or panel of VAs, who shall thereafter commence arbitration proceedings VOLUNTARY ARBITRATION Voluntary Arbitration refers to the mode of settling labormanagement disputes by which the parties select a competent, trained and impartial persons who shall decide on the merits of the case and whose decisions in final, executory and unappealable.

Grievance refers to any question by either the employer or the union regarding the interpretation or implementation of any provision of the collective bargaining agreement or interpretation or enforcement of company rules and regulations or personnel policies. 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. It is part of the continuing process of collective bargaining. Grievance Procedures refer to the internal rules of procedures established by the parties in their collective bargaining agreement 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 provides the parties a first crack in addressing problems in the CBA administration and its use is an essential requisite before a voluntary arbitrator can take cognizance of the unresolved grievance. Legally speaking, it is an appeal procedure and is a must provision in every collective agreement. It is the part of the agreement which provides for a peaceful way of settling differences and misunderstanding between the parties. Legal requirements in the establishment of grievance procedure: (1) Should be sufficient to ensure mutual observance of the terms and conditions of the CBA; (2) Should include in the CBA a procedure for the selection of the VA or name and designate in advance a VA. Mandatory provision in CBA A grievance procedure is a mandatory provision in the CBA. In the event that a CBA without such provision is submitted for registration, the registrar should advise the parties to include a grievance procedure therein before it is considered duly registered.

Voluntary Arbitrator refers to any person accredited by the Board as such, or any person named or designated in the CBA by the parties to act as their voluntary arbitrator, or one chosen by the parties, with or without the assistance of the Board, pursuant to a selection procedure agreed upon in the CBA, or one appointed by the NCMB in case either parties to the CBA refuses to submit to voluntary arbitration. The term includes panel of voluntary arbitrators. Two Kinds of Voluntary Arbitrators: (1) Permanent Arbitrator specifically named or designated in the CBA by the parties as their VA for a period of time, usually during the lifetime of the CBA rather than for just one case or a specific group of cases. (2) Ad Hoc Arbitrator chosen by the parties in accordance with the established procedure in the CBA or the one appointed by the NCMB in case there is failure in the selection or in the case of the parties to the CBA refuses to submit to voluntary arbitration. He is named to arbitrate a specific dispute and there is no commitment to select him again on another set of disputes. Types of labor disputes to be summated to voluntary arbitration: (1) Rights disputes include: (a) Unresolved grievances arising from CBA interpretation and implementation, including violations of the CBA which are not gross in character; (b) Unresolved grievances arising from personnel policy enforcement and interpretation, including disciplinary cases. (2) Interest disputes covers all other labor disputes including ULPs and bargaining deadlocks. Rights disputes vs. Interest disputes The former contemplate the existence of a CBA already concluded or a situation in which no effort is made to bring about a formal change in its terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision therein with reference to a specific situation or to an omitted case. The claim pertains to rights which have already accrued and not merely to new ones created for the future. The latter, on the other hand, relate to disputes over the formation of CBAs or efforts to secure them. They arise in no such agreement or where it is sought to change the terms of one and, therefore, the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past. In right disputes, the role of the VA is similar to a court construing a contract, which is to adjudicate rather than legislate. In interest disputes, the VA is that of a legislator or a bargainer for the parties. He supplements the collective bargaining process by doing the bargaining for both parties after they have failed to reach an agreement through their own bargaining efforts. Arbitration clause provision in the CBA requiring that grievances, if unsettled, shall be finally resolved by a VA. Issues of Arbitrability: (1) That the case does not involve any of the disputes that are covered by the arbitration clause; (2) That while covered by the arbitration clause, some conditions precedent such as the exhaustion of the grievance procedure, or timely notice of intent to arbitrate, have not been met. Joint submission to arbitration by the parties no problem; but when only one initiates arbitration by filing a notice of intent to arbitrate under the arbitration clause of the CBA the other party may raise issues of arbitrability.

2 Compulsory Arbitration a system whereby the parties to a dispute are compelled by the government to forego their right to strike and are compelled to accept the resolution of their dispute through arbitration by a third party. It is a mode of resolving a dispute whereby the consent of one of the parties is enforced by virtue of the law and following certain procedure laid down by law. The resolution of the dispute is arrived at by resort to a disinterested third party whose decision is final and binding on the parties. But in compulsory arbitration, such a third party is normally appointed by the government. Authority of Voluntary Arbitrators Under the Labor Code, the authority to conduct compulsory arbitration is principally vested upon Labor Arbiters. But cases over which the Labor Arbiter have original and exclusive jurisdiction may also be taken cognizance of by the VAs who shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from interpretation or implementation of the CBA and personnel policies. Likewise, the VA, by virtue of an agreement of the parties to a controversy, may also hear and decide all other labor disputes, including unfair labor practices and bargaining deadlocks. The authority to the VAs of said power is also vested upon Labor Arbiters. However, there are limitations on the power of the Labor Arbiters or the NLRC to hear and decide certain cases. Although cases arising from the interpretation and implementation of CBAs and personnel policies may have been filed with the Labor Arbiters under all-embracing jurisdictional provisions of the Labor Code, however, the law requires that the same be disposed of by the Labor Arbiters through no other manner except by referring them to the grievance machinery and voluntary arbitration as may be provided in said agreements. Authority of the NLRC The exercise of the NLRC of its appellate jurisdiction cannot be considered part of the compulsory arbitration process. When a Labor Arbiter renders his decision, compulsory arbitration is deemed terminated because with the issuance of his decision, the hearing and determination of the issues in a case are terminated. The NLRCs act is merely confined to the review of the decision of the Labor Arbiter to determine any possible error in his findings of fact or law. However, the NLRCs exercise of its original jurisdiction is part of the compulsory arbitration. The NLRC is said to engage in compulsory arbitration when it hears and decides petitions for injunction and national interest cases certified to it for compulsory arbitration by the DOLE Secretary. Execution of VAs Decision The VA has a power to issue writs of execution. The moment he issues a decision and there is no appeal, the decision of the VA becomes final and executory after 10 days from receipt of such decision. The winner will now file a motion for execution. The VA will issue a writ of execution just like a Labor Arbiter. Appeal Decision of VA One can appeal the decision of the VA by appealing to the CA within 15 days from the decision (Sec. 1, Rule 43). The decision of the VA becomes final after 10 days but you have 15 days to appeal to the CA, which is why you have to give notice to the VA that you are appealing in order to stay the execution of the decision. Unionized Establishment Only Article 260 has exclusive application only to situations where there is a CBA involved embodying provisions on grievance machinery and voluntary arbitration. The existence of a CBA presupposes that the establishment is organized or unionized or that the employees therein are being represented by a duly certified bargaining union. Where there is no CBA or bargaining union representing the employees, Article 260 is silent on the particular procedure. Absent any particular procedure in law mandating the creation of grievance machinery in unorganized or non-unionized establishments, there is no legal compulsion on the part of the employer and employees to create one or resort to this effective alternative mode of resolving their disputes.

Compulsory Arbitration vs. Voluntary Arbitration Compulsory arbitration is a system whereby the parties to a dispute are compelled by the government to forego their right to strike and are compelled to accept the resolution of their dispute through arbitration by a third party. The essence of arbitration remains since a resolution of a dispute is arrived at by resort to a disinterested third party whose decision is final and binding on the parties, but in compulsory arbitration, such a third party is normally appointed by the government. 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 de bound by said arbitrator's decision. Article. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. - The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement. Original and Exclusive Jurisdiction of Voluntary Arbitrators: (1) Unresolved grievances arising from the interpretation or implementation of the CBA; (2) Unresolved grievances arising from the interpretation of company personnel policies; (3) Wage distortion issues arising from the application of any wrong wage orders in organized establishments; (4) Other labor disputes, including ULP and bargaining deadlocks, upon agreement of the parties; (5) Unresolved grievances arising from the interpretation and implementation of the Productivity Incentive Programs under RA 6971. Voluntary arbitration from grievance machinery is actually a mode of appeal as may be gleaned from the Article 260, in relation to Article 261, that all grievances which are not settled or resolved within 7 calendar days from the date of their submission for resolution to the last step of the grievance machinery shall automatically be referred to voluntary arbitration prescribed by the CBA. Only grievances that are unresolved by the grievance machinery fall within the original and exclusive jurisdiction of the VA. If a grievance has not been submitted at the first instance to the grievance machinery,

3 the VA do not have jurisdiction to decide it. It is actually the grievance machinery which is exercising the original and exclusive jurisdiction over the same and not the VAs, who may only validly acquire jurisdiction over them if they are not settled or resolved within 7 calendar days from the date of submission for resolution to the last step of the grievance machinery. Unresolved grievances (1) A decision or resolution was rendered thereon through the various steps of the grievance machinery and either or both of the parties is/are not satisfied therewith; (2) No action at all was taken thereon within the period of 7 days from its submission for resolution to the last step of the grievance machinery. (Not from the date of the issuance of any decision or resolution on the grievance.) Note: If no action or resolution is made by the grievance machinery within said period, what is brought before the VA is not a decision or resolution but the very raw issues presented as grievance before the grievance machinery. Cases cognizable by VA but filed with the Labor Arbiter or the regular courts In case of conflict in jurisdiction, the law provides that the NLRC, its Regional Offices and the Regional Directors of the DOLE are not allowed to entertain disputes and grievances under the exclusive and original jurisdiction of the VA and are required to refer the same to the grievance machinery or voluntary arbitration under the CBA. When jurisdiction is exercised: (1) Upon receipt of a Submission Agreement duly signed by both parties. (2) Upon receipt of the notice to arbitrate when there is refusal from one party. (3) Upon receipt of an appointment/designation as VA by the board in either of the following circumstances: (a) In the event that parties fail to select an arbitrator; or (b) In the absence of a named arbitrator in the CBA and the party upon whom the notice to arbitrate is served does not favorably reply within 7 days from the receipt of such notice. Initiation of Arbitration: (1) By Submission Agreement (2) By Demand or Notice to Arbitrate invoking the arbitration clause in the CBA (3) An appointment from the NCMB (1) Submission Agreement refers to a written agreement by the parties submitting their case for arbitration, containing a statement of the issues, the name of their chosen VA and a stipulation and an undertaking to abide by and comply with the resolution that may be rendered therein, including the cost of arbitration. Contents of Submission Agreement: (a) An agreement to submit to arbitration; (b) The specific issue/s to be arbitrated; (c) The name of the arbitrator; (d) The names, addresses and contact numbers of the parties; (e) The agreement to perform or abide by the decision. (2) Notice to Arbitrate refers to a formal demand made by one party to the other for the arbitration of a particular dispute in case of refusal of one party in a CBA to submit the same to arbitration. Submission to arbitration through Notice to Arbitrate After exhaustion of the grievance procedure but the grievance remains unresolved and there is refusal from one party to submit to voluntary arbitration, the following procedure shall be observed:

(a) A notice to arbitrate shall be served upon the unwilling party, copy furnished the permanent arbitrator and the NCMB Regional Branch having jurisdiction over the workplace; (b) Upon receipt of a notice to arbitrate after the lapse of the seventhday period within which to respond, the permanent arbitrator/s shall immediately commence arbitration proceedings; (c) In the absence of a permanent arbitrator in the CBA, the NCMB appoints a voluntary arbitrator who shall immediately commence arbitration proceedings upon receipt of such appointment. Contents of a Notice to Arbitrate: (a) The names, addresses and contact numbers of the party upon whom the notice is made; (b) The arbitration clause of the CBA; (c) The specific issue/s or dispute/s to be arbitrated; (d) The relief sought; (e) The name, address and contact numbers of the initiating party requesting arbitration. Submission Agreement vs. Notice to Arbitrate The former is sometimes called a stipulation or an agreement to arbitrate. It is used where there is no previous agreement to arbitrate. It describes an existing dispute. It is more appropriate in interest disputes since CBAs generally do not provide for the arbitration of such disputes that may arise in the future. The latter, on the other hand, is more applicable to rights disputes because CBAs are required to provide for a grievance procedure and a voluntary arbitration clause with respect to disputes arising from the application or interpretation of CBAs or company personnel policies. If a dispute is covered by such an arbitration clause, arbitration may be initiated by one party by serving upon the other a written demand or notice of intent to arbitrate. (3) Appointment from the NCMB Contents of an appointment from the NCMB: (a) The name of the arbitrator; (b) The names, addresses and contact numbers of the parties; (c) The issues to be arbitrated; (d) The basis of appointment; (e) The arbitrator's fee; (f) The signature of appointing NCMB Director. Jurisdiction over ULP practices, bargaining deadlocks and other labor issues The VAs, upon agreement of the parties, are also empowered to hear and decide the same issue of ULP, bargaining deadlocks and other labor disputes. The parties may opt to file any of those cases either before the Labor Arbiter or VAs, both of whom may validly exercise original and exclusive jurisdiction. The important requirement here is that the parties must mutually agree to submit them to the VA. Jurisdiction over termination cases Termination cases fall under the original and exclusive jurisdiction of the Labor Arbiters and not of VAs, unless there is an express agreement between the parties to submit the termination dispute to voluntary arbitration. Jurisdiction over money claims The law precludes the Labor Arbiter from enforcing money claims arising from the implementation of a CBA if the CBA complementarily recognizes that it is the VA who has the jurisdiction to hear the claim. The jurisdiction of the VA must be voluntarily conferred upon by the parties to the dispute. Jurisdiction over strike and lockout cases The VA may hear and decide such cases as long as the parties mutually agree to submit it to voluntary arbitration. As far as national interest cases are concerned, the parties may opt to submit their disputes to voluntary arbitration, before or at any stage of the compulsory arbitration process therein.

4 Jurisdiction over cases involving violations of the CBA Generally, violation of a CBA is no longer treated as an ULP. It should be resolved as a ordinary grievance properly cognizable under the grievance machinery and general arbitration provisions of the CBA. However, if the violation of the CBA is gross in character (refusal to comply with economic provisions is flagrant or malicious), it should be treated as ULP and may be taken cognizance of by the Labor Arbiter or by the VA, upon agreement of the parties. Jurisdiction over wage distortion (1) In organized establishments Any dispute arising from such wage distortion should be resolved through the grievance procedure under the CBA and if it remains unresolved, through voluntary arbitration. Unless agree upon by the parties in writing, such dispute shall be decided by the VA within 10 calendar days from the time said dispute was referred to voluntary arbitration. (2) In unorganized establishments the employers and workers should endeavor to correct such distortion among themselves. Any dispute arising therefrom should be settled through the NCMB and if it remains unresolved after 10 calendar days of conciliation, it should be referred to the Labor Arbiter in the appropriate branch of the NLRC. The Labor Arbiter shall decide the dispute within 20 calendar days from the time said dispute is submitted for compulsory arbitration. Wage distortion a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service or other logical bases of differentiation. Whether a wage distortion exists is a question of fact that is within the jurisdiction of the quasi-judicial tribunals. Their actual findings are accorded respect and even finality by the SC if they are supported by substantial evidence. Jurisdiction over disputes involving the Productivity Incentives Program Disputes and grievances must first be submitted to the Labor-Management Committee for resolution. If they remain unresolved within 20 calendar days from the time of their submission to said Committee, the same should be submitted for voluntary arbitration, in line with the pertinent provisions of the Labor Code. Jurisdiction over cases of teaching and non-teaching personnel in private schools Disputes fall under the jurisdiction of the DOLE. In view of the special employment status of teaching and academic nonteaching personnel and their special roles in the advancement of knowledge, standards set or promulgated jointly by the DepEd and by the DOLE should be applied by the latter. Every private school is required to establish and implement an appropriate system within the school for the prompt and orderly settlement of personnel disputes at the school level, subject to the provisions of Article 260 and 261. Selection and Accreditation of Voluntary Arbitrators General considerations: (1) field of choice, or the problem of availability of desired persons; (2) legal qualification; (3) legal disqualification; and (4) criteria and attributes of a suitable arbitrator. Attributes that a voluntary arbitrator should possess: (1) he must be without prejudice or bias (2) he must be intelligent (3) he must be capable of exercising sound judgment (4) he must be immune to pressures from the parties and from others (5) he must be experienced in the field of labor relations.

Indicators of the acceptability of a VA: (1) highly knowledgeable and has had significant experience in the field of labor law, labor relations, personnel management and union problems; (2) has the capacity to run a hearing fairly and competently and command respect in his role; (3) is sensitive to and understands the needs of the parties insofar as a decision is concerned and the articulation of the reasons upon which it is based; (4) has a reputation in the industrial and union community for fairness and impartiality; and (5) because of character, can be depended upon not to depart from the ethical standards which arbitrators impose upon themselves. Accreditation all qualifications prescribed by the NCMB must be met Period of effectivity of accreditation 5 years Minimum criteria for accreditation as a VA: (1) He/she must be a Filipino citizen residing in the Philippines; (2) He/she must be a holder of at least a Bachelors degree preferably relevant to Labor and Social Relations, Economics and related fields of study; (3) He/she must have at least five (5) years experience in the field of Labor-Management relations.; (4) He/she has no pending criminal case involving moral turpitude; (5) Must have completed a training course on voluntary arbitration conducted by the Board; (6) Must be a person of good moral character, noted for impartiality, probity, and has not been civilly, criminally and administratively adjudged guilty of any offense involving moral turpitude as evidenced by a duly sworn affidavit. Pre-accreditation Training Program An applicant who possesses the minimum qualifications will be required to undergo a pre-accreditation training program to equip him with the basic knowledge, skills and value orientation necessary to perform the responsibilities and functions of an accredited voluntary arbitrator. Exception: For prospective arbitrators who have adequate experience and exposure in the field of arbitration and labor-management relations, they shall be required only to attend a briefing/orientation in lieu of a preaccreditation training. Renewal of Accreditation Before the expiration of the fifth year of accreditation, the NCMB will send advice/notice to the voluntary arbitrator requiring him/her to comply with certain requirements including submission of updated bio-data, new affidavit stating that he has no pending criminal case involving moral turpitude. After a thorough review of the new credentials submitted, the records and performance of the voluntary arbitrator concerned as to case disposition and participation to NCMB programs and activities and voluntary arbitration, the NCMB shall decide whether to issue or not a certificate renewing the accreditation for another five (5) years. Article. 262. Jurisdiction over other labor disputes. - The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. Jurisdiction conferred by mutual agreement of parties The jurisdiction of the VA to hear and decide all other labor disputes, including ULP and bargaining deadlocks, is conferred by the parties and such conferment is recognized by law. Nature of Jurisdiction

5 General Rule: Jurisdiction over the subject matter of a suit must find support in the law and cannot be conferred by consent or acquiescence of any or all parties or by erroneous belief of the court that it exists. Exception: Parties to a contract may submit to arbitration whatever controversy may arise therefrom. Jurisdiction over labor disputes is allowed by law to be conferred by the parties upon the VA. Article. 262-A. Procedures. - The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have the power to hold hearings, receive evidences and take whatever action is necessary to resolve the issue or issues subject of the dispute, including efforts to effect a voluntary settlement between parties. All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any third party or the exclusion of any witness from the proceedings shall be determined by the Voluntary Arbitrator or panel of Voluntary Arbitrators. Hearing may be adjourned for cause or upon agreement by the parties. Unless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator or panel of Voluntary Arbitrators to render an award or decision within twenty (20) calendar days from the date of submission of the dispute to voluntary arbitration. The award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrators shall contain the facts and the law on which it is based. It shall be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties. Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the Voluntary Arbitrator or panel of Voluntary Arbitrators, for any reason, may issue a writ of execution requiring either the sheriff of the Commission or regular courts or any public official whom the parties may designate in the submission agreement to execute the final decision, order or award. Powers of the VA: (1) Require any person to attend hearing/s; (2) Subpoena witnesses and receive documents when the relevancy of the testimony and the materiality thereof has been demonstrated to the arbitrator; (3) To take whatever action is necessary to resolve the issue/s subject of the dispute; (4) To issue a writ of execution to enforce final decisions and in connection therewith, it shall be his duty to: (a) See to it that his/her decision is fully satisfied; (b) Inquire into the correctness of the execution of his/her final decision; (c) Consider whatever supervening event that may transpire during such execution; (d) Determine every question of fact and law which may be involved in the execution. Adjudicatory Power The VA has the power to hold hearings, receive evidence and take whatever action is necessary to resolve the issues of the dispute. Arbitrators must feel free to participate personally in the hearing by asking questions, seeking information and exploring all angles which he deems necessary for a full understanding of the case. Compulsory Power VAs have the power to require any person to attend hearings as a witness. They have the power to subpoena witnesses and documents when the relevance of the testimony and the materiality thereof has been demonstrated to them. However, even assuming its legality, the use of subpoena is not to be encouraged.

Demands for relevant information by either party should be honored without the formality of a subpoena. Duty to conciliate and mediate The VA must exert best efforts to conciliate or mediate to aid the parties in reaching a voluntary settlement of the dispute before proceeding with arbitration. Conciliation or mediation should be made even after arbitration has been initiated and an arbitration hearing has already been commenced. Duty to encourage parties to enter into stipulation of facts The VA should encourage the parties to enter into a stipulation of facts which should be reduced in writing and signed by the parties. The same shall form part of the records of the case. Pleadings and appearances in Voluntary Arbitration Where to file directly to the chosen VA at his designated business or professional office, copy furnished the Regional Branch of the NCMB having jurisdiction of the workplace of the complainant. Service of copies of pleadings, notices and awards: (1) By personal service; (2) By registered mail. Representations The parties may personally appear in their own behalf or by their respective representatives. In the latter case, a partys representative must be duly authorized to appear in writing or he should be a practicing attorney-in-law. Attorneys or representatives cannot, without a special power of attorney or express consent, enter into a compromise agreement with the opposing party in full or partial discharge of a clients or principals claim. PROCEEDINGS BEFORE A VOLUNTARY ARBITRATOR Nature of proceedings non-litigious; they are not governed by technical rules applicable to court or judicial proceedings but they must, at all times, comply with the requirements of due process. Setting of initial conference Within 2 days from receipt of the parties Submission Agreement, Notice to Arbitrate or Appointment from the NCMB, the VA is required to set the date, time and place of the initial conference, with due notice to the parties. Initial Conference parties are encouraged to explore possible means of effecting a voluntary settlement of the dispute between them. If they arrived to an agreement, the same shall be reduced in writing and signed by the parties before the VA and shall form part of the decision. Stipulation of facts In the absence of settlement, the VA should require the parties to stipulate on facts which are no longer disputed, leaving the presentation and examination of evidence only to such facts that are still in dispute. Effect of non-appearance of parties In case of non-appearance for 2 consecutive conferences despite due notice, the VA shall terminate the conference and issue an order requiring the parties to submit their respective position papers within 10 calendar days from the receipt of the said order; otherwise, the case should be deemed submitted for decision based on the available records on file. Clarificatory conference or ocular inspection held after the submission of the position papers and other pleadings. Recording of the proceedings need not be recorded, but the VA should make a written summary of the proceedings, including the substance of the evidence presented.

6 Exhibits evidence presented and presented in written form; the party offering must be prepared to use a witness to identify the exhibit and to show its accuracy if the other party does not accept the same for what it purports to be. Due process VAs should observe the requirements of procedural due process by providing the parties to a case, adequate opportunities to be heard. Employers are likewise entitled to due process. Ex parte proceedings and default awards Only an unexplained failure to appear due notice, not a delay in appearance, can justify an ex parte proceeding. The Arbitrator must proceed to hear the testimony and receive all the evidences submitted by the other party including those that he may require for the making of an award. Re-opening of hearing Under accepted practice the arbitrator on his own initiative, or upon request of a party for good cause shown, may reopen the hearing at any time before the award is rendered. If reopening would prevent the issuance of the award within the mandatory time limit, the hearing may not be reopened unless the parties agree to extend the time limit. Withdrawal of cases from arbitration Parties may withdraw a case through agreement. The complainant usually may withdraw the case at any point prior to arbitration hearing, but after the hearing has commenced, he may not withdraw the case over the objection of the other party unless permitted by the arbitrator. Agreement provision usually allows withdrawal of the case after arbitration hearing only by mutual consent of the parties. ARBITRATION DECISIONS AND AWARDS Decision in arbitration case The final arbitration disposition of issues submitted to voluntary arbitration is the decision which may take the form of a dismissal of a claim or grant of a specific remedy, either by way of prohibition of the commission of particular acts or the specific performance of particular acts. It has the same legal effect as a judgment of a court. A decision on matters of fact and law is conclusive and all matters in the award are res judicata. Mandatory period to render award or decision Unless the parties agree otherwise, it shall be mandatory for the VA to render an award or decision within 20 calendar days from the date of submission of the case for resolution. In case of labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest which has been submitted for voluntary arbitration, the same should be resolved by the VA within 30 calendar days from the date of submission thereof for resolution. The decision of the VA shall be final and executory 10 calendar days after receipt thereof by the parties. Failure on the part of the VA to render such decision, resolution, order or award, within the prescribed period shall, upon complaint of a party, be a sufficient ground for the NCMB to discipline said VA, pursuant to the guidelines issued by the DOLE Secretary. Full and complete settlement of issues during pendency of arbitration proceedings the terms of the settlement must be reduced in writing and adopted as the decision of the arbitrator. Monetary award the amount granted and the formula used in the computation, if any, should be specified. Finality of award and decision The decision or award of the VA shall be final and executory after 10 calendar days from receipt of the copies thereof by the parties.

7 Motion for reconsideration of VA decision TENG vs. PAHAGAC Facts: Teng engaged in a deep sea fishing business. Teng claims that he customarily enters into JVAs with master fishermen (maestros) who are experts in deep sea fishing. The maestros hired respondents as checkers to determine the volume of the fish caught in every fishing voyage. Respondents filed a complaint for illegal dismissal against Teng before the NCMB. In his defense, Teng maintained that he did not have any hand in hiring respondents; the maestros invited them to join the venture. The VA rendered a decision in Tengs favor and declared that no ER-EE relationship existed. The respondents received the VAs decision on June 12, 2003. They filed an MR, which was denied in an order, which they received on July 8, 2003. On July 21, 2003, the respondents elevated the case to the CA, which reversed the VA's decision. On appeal, Teng contends that the VAs decision is not subject to an MR in the absence of any specific provision allowing this recourse. Held: Article 262-A provides that the decision of the VA shall be final and executory after 10 calendar days from receipt of the copy of the award or decision by the parties. Presumably, the decision may still be reconsidered by the VA on the basis of an MR duly filed during that period. The seasonable filing of an MR is a mandatory requirement to forestall the finality of such decision. The absence of a categorical language in Article 262-A does not preclude the filing of an MR of the VAs decision within the 10-day period. Tengs allegation that the VAs decision had become final and executory by the time the respondents filed an appeal with the CA thus fails. The respondents seasonably filed an MR of the VAs judgment, and the VA erred in denying the motion. A contrary provision can be found in DO 40-03, providing that the decision of the VA is not subject of an MR. Neither the VA nor Teng cited DO 40-03 as authorities for their cause, considering that these were the governing rules while the case was pending and these directly and fully supported their theory. Had they done so, their reliance on the provisions would have nevertheless been unavailing. By allowing a 10day period, the obvious intent of Congress in amending Article 263 to Article 262-A is to provide an opportunity for the party adversely affected by the VAs decision to seek recourse via an MR or a petition for review under Rule 43. Indeed, an MR is the more appropriate remedy in line with the doctrine of exhaustion of administrative remedies. For this reason, an appeal from administrative agencies to the CA via Rule 43 requires exhaustion of available remedies as a condition precedent. By disallowing reconsideration of the VAs decision, DO 40-03 denies the VA the chance to correct himself and compel the courts of justice to prematurely intervene with the action of an administrative agency entrusted with the adjudication of controversies coming under its special knowledge, training and specific field of expertise. Relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court. Modification of award and decision by motion or motu proprio An award should be regarded as the judgment of a court of last resort so that all reasonable presumption should be ascertained in its favor and easy mode of obtaining justice, would be merely an unnecessary step in the course of litigation, causing delay and expenses, but not finally settling anything. In the interest of justice and industrial peace, however, the consistent stand of the NCMB has been that voluntary arbitrator may modify their original awards or decisions but only to correct typographical or harmless errors that are patently obvious on the face of the award or decision. They may not, however, introduce a substantial amendment to their award or decision in the guise of correcting a harmless or typographical error. JUDICIAL REVIEW OF DECISIONS OF VOLUNTARY ARBITRATORS Decisions are final and executory As a general rule, decision and awards of VAs are final, unappealable and executory within 10 calendar days from receipt of a copy thereof by the parties. It is well-settled rule, however, that the findings of fact and law made by the VA may be reviewed by the court. Grounds for contesting the VAs decision: (1) Lack or want of jurisdiction; (2) Grave abuse of discretion; (3) Violation of due process; (4) Denial of substantive justice; (5) Erroneous interpretation of the law. Factual findings of VA Findings of facts of VAs are accorded not only respect but even finality if they are supported by substantial evidence, even if not overwhelming or preponderant. APPEAL FROM DECISIONS OF VOLUNTARY ARBITRATORS Ordinary appeal under Rule 43 A VA enjoys in law the status of a quasi-judicial agency; hence, his decisions and awards are appealable by way of a petition for review to the CA. LDB vs. ALDBE Facts: From a submission agreement of the LDB and the ALDBE arose an arbitration case to resolve whether or not the company has violated the CBA provision and the MOA on promotion. At a conference, the parties agreed on the submission of their respective position papers. Atty. Garcia, in her capacity as VA, received ALDBE's position paper. LDB, on the other hand, failed to submit its position paper despite a letter from the VA reminding them to do so. Without LDB's position paper, the VA rendered a decision. Held: The jurisdiction conferred by law on a VA is quite limited compared to the original jurisdiction of the labor arbiter and the appellate jurisdiction of the NLRC. The award or decision of the VA shall be final and executory after 10 calendar days from receipt of the copy of the award or decision by the parties, while the decision, awards, or orders of the Labor Arbiter are final and executory unless appealed to the NLRC by any or both parties within 10 calendar days from receipt of such decisions, awards, or orders. Hence, while there is an express mode of appeal from the decision of a labor arbiter, RA 6715 is silent with respect to an appeal from the decision of a VA. The awards of VAs determine the rights of parties; hence, their decisions have the same legal effect as judgments of a court. It follows that the VA, whether acting solely or in a panel, enjoys in law the status of a quasi-judicial agency but independent of, and apart from, the NLRC since his decisions are not appealable to the latter. Assuming arguendo that the VA may not strictly be considered as a quasi-judicial agency, board or commission, still both he and the panel are comprehended within the concept of a "quasi-judicial instrumentality." An "instrumentality" is anything used as a means of agency. Thus, the terms governmental "agency" or "instrumentality" are synonymous in the sense that either of them is a means by which a government acts, or by which a certain government act or function is performed. The VA no less performs a state function pursuant to a governmental power delegated to him under the provisions in the Labor Code and he falls, therefore, within the contemplation of the term "instrumentality." In effect, this equates the award or decision of the voluntary arbitrator with that of the RTC. Consequently, in a petition for certiorari from that award or decision, the CA must be deemed to have concurrent jurisdiction with the SC.

Period of appeal within 15 days from notice of the award, judgment or final order or resolution of the VA. Use of Rule 65 instead of Rule 43 as mode of appeal Use of an erroneous mode of appeal is a valid cause for dismissal of a petition for certiorari. The independent action of certiorari under Rule 65 cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that provided under Rule 43, especially if such loss or lapse was occasioned by ones own neglect or error in the choice of remedies. It must be noted that Rule 65 lies only where there is no appeal and no plain, speedy and adequate remedy in the ordinary course of law. Exceptions when Rule 65 is given due course despite availability of remedy of appeal: (1) When public welfare and advancement of public policy dictates; (2) When the broader interest of justice so requires; (3) When the writs issued are null and void; or (4) When the questioned order amounts to an oppressive exercise of judicial authority. SAMAHAN NG MGA MANGGAGAWA SA HYATT vs. BACUNGAN Facts: In 1995 and 1996, Dacles and Valencia respectively assumed their duties as glass cleaners at Hyatt, pursuant to the cleaning service contract executed between Hyatt and CSC. Meanwhile, Hyatt hired Dalmacio and Dazo on a casual basis as florist/sales clerk and helper/driver, respectively. After their contracts expired, the two signed another employment contract with Hyatt. During a meeting, petitioner union questioned the status of Dacles, et al. Petitioner union and Hyatt agreed to submit the matter for resolution through the grievance machinery as provided for in their CBA. Petitioner union claimed that Dacles, et al. were regular employees. On the other hand, Hyatt maintained that they were mere project employees. Thereafter, Hyatt dismissed Dacles and Valencia on the ground that the service contract between Hyatt and CSC had been terminated. Petitioner union and Hyatt were unable to settle the dispute through the grievance procedure and agreed to elevate the issue for voluntary arbitration. Held: Petitioner union argues that the proper remedy to assail a decision of a VA is certiorari under Rule 65. The SC disagrees. The decision of the VA should be appealable to the CA under Rule 43, just like those of the quasi-judicial agencies, boards and commissions, and consistent with the original purpose to provide a uniform procedure for the appellate review of adjudications of all quasi-judicial entities. In the case, the petition was filed beyond the reglementary period for filing a petition for review under Rule 43. It is elementary in remedial law that the use of an erroneous mode of appeal is a cause for dismissal of the petition for certiorari and it has been repeatedly stressed that a petition for certiorari is not a substitute for a lost appeal. In any event, the VA did not err in ruling that Dacles and Valencia were employees of CSC, whose services may be terminated upon the expiration of the contract between Hyatt and CSC. Well-settled is the rule that findings of fact of administrative agencies and quasi-judicial bodies which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only great respect but even finality. They are binding upon this Court unless there is a showing of grave abuse of discretion or where it is clearly shown that they were arrived at arbitrarily or in utter disregard of the evidence on record. EXECUTION PROCEEDINGS IN VOLUNTARY ARBITRATION CASES Compliance with decision Both parties to a voluntary arbitration proceeding are required to comply voluntarily and faithfully with the decision rendered therein. Such compliance must be made without delay. After all, the parties are presumed to have freely chosen arbitration as the mode of settlement for that particular dispute.

8 Enforcement of decision In case of non-compliance of the decision by either or both parties, a motion to enforce/execute may be filed with the VA who may issue a writ of execution requiring either the sheriff of the NLRC or the regular courts or any public official whom the parties may have designated in their Submission Agreement, to execute the final decision. In the absence of the VA or, in case of his incapacity, the motion should be field with the Labor Arbiter in the region having jurisdiction over the workplace. The filing of the motion is without prejudice to any other action which the aggrieved party may take against the non-complying party such as a motion for contempt or imposition of fines and penalties. Pre-execution conference Within 2 working days from receipt of the motion for the issuance of a writ of execution, the VA, or in case of his incapacity, the Labor Arbiter before whom the motion is filed, is required to schedule a pre-execution conference to thresh out matters relevant to the execution. Issuance of writ of execution Execution must be issued, as a matter of course, upon a decision that finality dispose of the action or proceeding. Effect of filing a petition for certiorari on the execution process Filing of a petition for certiorari with the CA or SC does not stay the execution of the assailed decision of a VA, unless a TRO or injunction is issued by the CA or SC pending resolution of such petition. Article. 262-B. Cost of voluntary arbitration and Voluntary Arbitrators fee. - The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the Voluntary Arbitrators fee. The fixing of fee of Voluntary Arbitrators, whether shouldered wholly by the parties or subsidized by the Special Voluntary Arbitration Fund, shall take into account the following factors: (a) Nature of the case; (b) Time consumed in hearing the case; (c) Professional standing of the Voluntary Arbitrator; (d) Capacity to pay of the parties; and (e) Fees provided for in the Revised Rules of Court. Cost of Arbitration and VAs fee The parties shall provide a proportionate sharing scheme on the cost of voluntary arbitration. Unless the parties agree otherwise, the cost should be shared equally by the parties. The VA is permitted to charge not only per diem fee but also other fees like cancellation, postponement, rescheduling or administrative fees. The parties are encouraged to set aside funds for such costs. In the event that said funds are not sufficient, an amount by way of subsidy taken out of the Special Voluntary Arbitration Fund (SVAF) may be availed of by either or both parties subject to the guidelines issued by the DOLE Secretary. SVAF A Special Voluntary Arbitration Fund has been established in the NCMB to subsidize the cost of voluntary arbitration in cases involving the interpretation and implementation of the CBA, including the Arbitrators fees, and for such other related purposes to p romote and develop voluntary arbitration. The NCMB shall administer the SVAF in accordance with the guidelines it may adopt upon the recommendation of the Tripartite Voluntary Arbitration Advisory Council, which guidelines shall be subject to the approval of the DOLE Secretary. Continuing funds needed for this purpose in the initial yearly amount of P15M shall be provided in the 1989 annual general appropriations acts. The amount of subsidy in appropriate cases shall be determined by the NCMB in accordance with established guidelines issued by it upon the recommendation of the Council. The Fund shall also be utilized for the operation of the Council, the training and education of VAs, and the Voluntary Arbitration Program.

LUDO vs. SAORNIDO Facts: LUDO engaged the arrastre services of CLAS for the loading and unloading of its products. Several arrastre workers were deployed by CLAS to perform the services. These arrastre workers were subsequently hired as regular rank-and-file employees of LUDO every time the latter needed additional manpower services. Said employees thereafter joined LUDO EMPLOYEES UNION, which acted as the exclusive bargaining agent. The LEU entered into a CBA with LUDO. Thereafter, the union requested LUDO to include in its members peri od of service the time during which they rendered arrastre services to LUDO through the CLAS so that they could get higher benefits. LUDO failed to act on the request. Thus, the matter was submitted for voluntary arbitration. The parties accordingly executed a submission agreement raising the sole issue of the date of regularization of the workers for resolution by the VA. In its decision, the VA ruled that: (1) the employees were engaged in activities necessary and desirable to the business of petitioner, and (2) CLAS is a labor-only contractor of petitioner, and declaring that the complainants shall be considered regular employees. Held: LUDO contends that the award of benefits which were beyond the terms of submission agreement was not proper. The SC did not agree. The jurisdiction of the Labor Arbiter and the VA over the cases enumerated in the Labor Code can possibly include money claims in one form or another. Compulsory arbitration has been defined both as "the process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all the parties, and as a mode of arbitration where the parties are compelled to accept the resolution of their dispute through arbitration by a third party." While a VA is not part of the governmental unit or labor departments personnel, said VA renders arbitration services provided for under labor laws. Generally, the arbitrator is expected to decide only those questions expressly delineated by the submission agreement. Nevertheless, the arbitrator can assume that he has the necessary power to make a final settlement since arbitration is the final resort for the adjudication of disputes. As regards the issue on prescription, the determination whether the claim is barred by prescription is a question of fact which must be ascertained based on the evidence, both oral and documentary, presented by the parties before the VA. In this case, the VA found that prescription has not as yet set in to bar the respo ndents claims for the monetary benefits awarded to them. Basic is the rule that findings of fact of administrative and quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only great respect but even finality.

9 shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting, where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (As amended by Executive Order No. 111, December 24, 1986). (d) The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate. (e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. (f) 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. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and further amended by Executive Order No. 111, December 24, 1986). (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, 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,

STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES


Article. 263. Strikes, picketing and lockouts. - (a) It is the policy of the State to encourage free trade unionism and free collective bargaining. (b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. (c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 day before the intended date thereof. In cases of unfair labor practice, the period of notice

most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment 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 Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same. (h) Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. (i) The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide or resolve the dispute, as the case may be. The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall be final and executory 10 calendar days after receipt thereof by the parties. Strike means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute; not only concerted work stoppages but also slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage plant equipment and facilities, and similar activities. Elements: (1) There is a temporary stoppage of work; (2) By the concerted activity of the employees; (3) There is a labor dispute. Lockout means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. It consists shutdowns, mass retrenchment and dismissals initiated by the employer. Lockout, however, may take other forms such as the employers act of excluding employees who are union members. Purpose of a strike or lockout: (1) Strike for collective bargaining and for workers mutual benefit and protection (2) Lockout redress employers grievances against the commission by the certified bargaining union of ULP or to resolve a bargaining impasse. Picketing 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. While workers have the right to peaceful picketing, no person engaged in picketing is allowed to 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. In the same light, no person is permitted to obstruct, impede or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by workers during any labor controversy or in the exercise of the right to self-organization or collective bargaining or shall aid or abet such obstruction or

10 interference. No employer is allowed to use or employ any person to commit such acts nor shall any person be employed for such purpose. Right to picket is part of the right guaranteed under the law to engage in concerted activities for purposes of collective bargaining for their manual benefit and protection. This right is also duly guaranteed under the freedom of speech principle in the Constitution. It cannot be prohibited even in the absence of ER-EE relationship. Limitations on the right of picketing: (1) any act of violence, coercion or intimidation is prohibited; (2) stationary picket; (3) use of means like placing objects as permanent blockade or to effectively close points of entry or exit in company premises; (4) prevent employees of another company which is not their employer, from getting in and out of its rented premises. Note: If the picketers use foul language during the picketing, such may not result in, or give rise to, libel or action for damages. Picket vs. Strike (1) Right to strike stems out of its right to self-organization. The right to picket stems from the constitutional right of freedom of speech. (2) The strike is collective in character. Whether it be concerted group of employees acting together or an LLO, there is a right to strike because not one single person can stop work. But freedom of speech is individual in nature. (3) Strike requires procedural requisites. In picketing, there are no procedural preconditions. (4) Normally, strike cannot be enjoined, although there are exceptions. Freedom of speech may be ordered or scheduled, but it cannot be enjoined whether by the Secretary of Labor or regular courts. Determine whether picket or strike consider totality of the circumstances surrounding the situation Hospitals, Clinics and Medical Institutions In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effect on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. Government employees classified into two: (1) Employees of GOCCs without original charter (Corporation Code) covered by the Labor Code; possess and enjoy the rights to selforganization and to strike just like any employees in the private sector. (2) Employees of the government and its political subdivisions and instrumentalities, including GOCCs with original charter covered by the Civil Service Law; posses and enjoy only the right to selforganization, but not the right to strike. If employees of the government and GOCCs with original charter go to strike, they violate the Civil Service Law because there is no law granting government employees the right to strike. The right to strike is not constitutional, it is statutory. MANILA PUBLIC SCHOOL TEACHERS vs. LAGUIO JR. Teachers left their work, marched to Malacanang and camped outside for one month. Their salary adjustment, which is covered by law, and the President already signed it, was implemented. They are now contending that they are gathering peacefully in redress or grievance as part of their constitutional right. The SC held that from the pleaded and submitted facts, the mass actions were, to all intents and purposes, a strike. They constituted a concerted and unauthorized stoppage of or absence from work. Because of their actions, and there is no law allowing to strike,

the teachers violated the Civil Service Law. The Secretary of Education was correct in striking them off form the roster of teachers. BLTBCO vs. NLRC Facts: Respondent union filed a Notice of Strike against BLTBCo on the grounds of ULP and violation of the CBA. BLTBCo asked the Secretary of Labor to assume jurisdiction over the dispute or to certify it to the NLRC for compulsory arbitration. BLTBCo also moved to dismiss the notice of strike. A copy of the certification order was served upon the NAFLU and on the TLM-BLTBCo-NAFLU. However, it was noted in the notice of order that union secretary Soriano refused to receive it. The officers and members of TLM-BLTBCo-NAFLU went on strike and maintained picket lines blocking the premises of BLTBCo's terminals. The NLRC issued a resolution ordering the striking employees to lift their picket and to remove all obstructions and barricades. All striking employees on payroll were required to return to work. BLTBCo was directed to accept them back to work. BLTBCo then caused the publication of the resolution and called on all striking workers to return to work. Of the some 1,730 employees who went on strike, only 1,116 reported back for work. 17 others were later re-admitted. Subsequently, about 614, including those who were allegedly dismissed for causes other than the strike, filed individual complaints for illegal dismissal. Their ground was that they were refused admission when they reported back for work. Held: BLTBCo contends that the 190 union members who participated in the illegal strike should not have been reinstated because they defied the return-to-work order. The SC disagreed. The mere fact that the majority of the strikers were able to return to work does not necessarily mean that the rest deliberately defied the return-to-work order or that they had been sufficiently notified thereof. The contention of BLTBCo that the respondents abandoned their position is also not acceptable. An employee who forthwith takes steps to protest his lay-off cannot by any logic be said to have abandoned his work. For abandonment to constitute a valid cause for termination of employment, there must be a deliberate, unjustified refusal of the employee to resume his employment. This refusal must be clearly established. A worker who joins a strike does so precisely to assert or improve the terms and conditions of his employment. If his purpose is to abandon his work, he would not go to the trouble of joining a strike. BLTBCo's last point is that the NLRC should not have issued the blanket directive for the "reinstatement of all striking employees of BLTBCo who have not committed illegal acts." The key clause here is "who have not committed illegal acts." The directive was not really "blanket," as BLTBCo would call it, but indeed selective. The loss of employment of striking union members is limited to those "who knowingly participates in the commission of illegal acts." Evidence must be presented to substantiate the commission thereof. The right to strike is one of the rights recognized and guaranteed by the Constitution as an instrument of labor for its protection against exploitation by management. By virtue of this right, the workers are able to press their demands for better terms of employment with more energy and persuasiveness, poising the threat to strike as their reaction to the employer's intransigence. The strike is indeed a powerful weapon of the working class. But precisely because of this, it must be handled carefully, like a sensitive explosive, lest it blow up in the workers' own hands. Thus, it must be declared only after the most thoughtful consultation among them, conducted in the only way allowed, that is, peacefully, and in every case conformably to reasonable regulation. Any violation of the legal requirements, such as a defiance of a return-towork order in industries affected with public interest, will render the strike illegal, to the detriment of the workers it is supposed to protect. Different Forms of Strikes

11 As to nature: (a) Legal strike for a valid purpose and conducted through means allowed by law. (b) Illegal strike for a purpose not recognized by law or, if for a valid purpose, it is conducted through means not sanctioned by law. (c) Economic strike one declared to demand higher wages, overtime pay, holiday pay, vacation pay, etc.; it is for the purpose of forcing wage or other concessions from the employer which he is not required by law to grant. (d) ULP or Political strike one called to protest against the employers ULP enumerated in Art. 248, including gross violation of the CBA under Art. 261, and union-busting under Art. 263 (c). (e) Slowdown strike staged without the workers quitting their work but by merely slackening or reducing their normal work output. (f) Wildcat strike one declared and staged without the majority approval of the recognized bargaining agent; deemed to aggravate the illegality of concerted actions for the purpose of applying the proper penalty to those responsible for illegal work stoppages. (g) Sit-down strike workers stop working but do not leave their place of work. As to coverage: (a) General strike covers and extends over a whole province or country; the employees of various companies and industries cease to work in sympathy with striking workers of another company. (b) Particular strike covers a particular establishment or employer or one industry involving one union or federation. As to purpose: (a) Economic strike (b) ULP strike As to the nature of the strikers action: (a) Partial strike unannounced work stoppages such as slowdowns, walkouts or unauthorized extension of rest periods. (b) Sit-down strike (c) Slowdown strike As to the extent of the strikers action: (a) Primary strike conducted by workers against the employer involving a labor dispute directly affecting them. (b) Secondary strike staged by workers of an employer involving an issue which does not directly concern or affect their relationship but rather, by some circumstances affecting the workers such as when the employer persists to deal with a third person against whom the workers have an existing grievance. (c) Sympathy strike strikers have no demands or grievances or labor dispute of their own against their employer but nonetheless stage the strike for the purpose of aiding, directly or indirectly, other strikers in other establishments or companies, without necessarily having any direct relation to the advancement of the strikers interest. Industrial or labor dispute includes any controversy or matter concerning the terms and conditions of employment of the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment regardless of whether the disputants stand in the proximate relation of employer and employee. REQUIREMENTS OF LEGAL STRIKE (1) Strike does not violate a law. (2) It is for a lawful purpose (valid and factual grounds). (3) It is conducted strictly in accordance with procedural requirements of law. (4) It must be carried out in consonance with the agreement of the parties.

(5) If carried out with lawful methods, there must be no act of violence, coercion or intimidation. (6) It must not be in violation of any injunction order. (1) STRIKE DOES NOT VIOLATE A LAW BANGALISAN vs. CA Petitioners were among the 800 public school teachers who staged "mass actions" to dramatize their grievances. The DepEd Secretary issued a Return-to-Work Order. Petitioners failed to comply with said order, and charged with violation of Civil Service law. They were placed under preventive suspension. Despite due notice, petitioners failed to submit their answer to the complaint. The petitioners were then found guilty as charged. Petitioners contend that they were not on strike but were merely exercising their constitutional right peaceably to assemble. The SC held in the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose. Further, petitioners are being penalized not because they exercised their right of peaceable assembly, but because their actuations constituted conduct prejudicial to the best interest of the service, punishable under the Civil Service law. It bears stressing that suspension of public services, however temporary, will inevitably derail services to the public, which is one of the reasons why the right to strike is denied government employees. To grant employees of the public sector the right to strike, there must be a clear and direct legislative authority therefor. SSSEA vs. CA The officers and members of SSSEA staged an illegal strike and barricaded the entrances to the SSS Building, preventing nonstriking employees from reporting for work and SSS members from transacting business with the SSS. It appears that the SSSEA went on strike after the SSS failed to act on the union's demands. In recognizing the right of government employees to organize, the legislators intended to limit the right to the formation of unions or associations only, without including the right to strike. Under E.O. No. 180, the employees in the civil service are denominated as "government employees" and that the SSS is one such GOCC with an original charter; hence, its employees are part of the civil service and are covered by the CSC's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal. (2) IT IS FOR A LAWFUL PURPOSE Two valid and factual grounds in support of a legal strike: (a) Collective bargaining deadlock (Economic strike) A bargaining deadlock is a situation where there is a failure in the collective bargaining negotiations between the bargaining agent and the employer, resulting in a stalemate. Despite efforts at bargaining in good faith, the parties have failed to resolve the issues and it appears that there are no other definite options or plans in sight to break it. There is deadlock when there is complete blocking or stoppage in the negotiation resulting from the action of equal and opposing forces. It is synonymous with the word impasse which presupposes reasonable effort at good faith bargaining on the part of both parties which, despite notable intentions, does not result in the conclusion of an agreement between them. In this case, only the EBA can strike. (b) Unfair labor practice (Political strike) For employers, their ULP is provided in Art. 248, while for labor organizations, it is under Art. 249. Other ULPs under the Labor Code are provided in Art. 261, involving gross violation of the CBA, and under Art. 263 (c) involving union busting. Those enumerated are exclusive. An act, no matter how unfair it may be, cannot be legally considered ULP if not expressly provided in these provisions. If there is an EBA, only the EBA can strike. But if there is no EBA, any legitimate labor organization can strike. SHELL OIL WORKERS UNION vs. SHELL COMPANY In deciding whether the strike is legal or not, utmost consideration should be given to the

12 particular circumstances of each case, with a view to having the most comprehensive understanding of the motivations of the parties. In this case, Shell violated the CBA, but, on the other hand, it cannot be concluded that for this reason, the strike was consequently illegal. The two strike votes taken by the members of the union were both premised on the sincere and honest belief that there was a legal breach of the said agreement. It is not required that there be in fact a ULP committed by the employer. It suffices, if such a belief in good faith is entertained by labor, as the inducing factor for staging a strike. The union was not bound to wait for the expiration of 30 days from notice of strike before staging the same. Therefore, if there was actually no existing ULP, but the striking union believed in good faith that there was ULP, such strike is not illegal, but the union must have rational basis for holding the strike. PICEWO vs. PICC On the belief that the PICC refused to bargain collectively with PICEWO, individual petitioners together with the other members staged a strike. A strike may be considered legal when the union believed that the PICC committed unfair labor acts and the circumstances warranted such belief in good faith although subsequently such allegation of ULP are found out as not true. In the present case, the strike was proved and held to be not illegal but was induced in the honest belief that management had committed ULP and, therefore, the cause of their dismissal from employment was nonexistent. It is clear that management gave cause or reason to induce the staging of the strike by improperly refusing to recognize the new union formed by petitioners. GTE DIRECTORIES vs. SANCHEZ The adoption of a new policy is within managements prerogative to regulate, according to its own discretion and judgment, all aspects of employment, including the manner, procedure and processes by which particular work activities should be done. When the strike notice was filed by the union, the chain of events which culminated in the termination of the employees was already taking place, the series of defiant refusals by said employees to comply with GTE's requirement to submit individual reports was already in progress. The filing of the strike notice did not operate to make GTE's orders illegal or unenforceable so as to excuse continued noncompliance therewith. The overt, direct, deliberate and continued defiance and disregard by the employees of the authority of their employer left the latter with no alternative except to impose sanctions. It would be dangerous doctrine indeed to allow employees to refuse to comply with rules and regulations, policies and procedures laid down by their employer by the simple expedient of formally challenging their reasonableness or the motives which inspired them, or filing a strike notice with the DOLE. Moreover, while it is true that labor disputes causing the strike adversely affecting the national interest allows the Secretary of Labor to assume jurisdiction over the dispute and decide it, such does not apply to GTE. The production and publication of telephone directories, which is the principal activity of GTE, can scarcely be described as an industry affecting the national interest. Problem: Suppose the employer commits ULP but the CBA contained a no strike clause, can the union still go on strike? Yes, as long as the strike is grounded on ULP. A no strike clause only covers an economic strike, and not an unfair labor practice strike. An economic strike is a strike that is grounded on a demand of a union for economic benefits which management is not under legal obligation to grant. Example of economic benefits that management is under legal obligation to grant is labor standards benefits. What happens when there is an amendment to the minimum wage law, and the new law now under wage order is higher than what the workers are receiving under the CBA? If the workers demand the enforcement of the wage order, and they go on strike, it is not an economic strike. It is a ULP strike because what management is doing is refusal to grant an economic provision in the CBA. Take note that the law is automatically

incorporated in the CBA. If the refusal of the management to grant an economic provision is malicious or flagrant, that is ULP. Negative substantial requisites: (a) The strike must not be based on intra or inter union disputes they are better resolved following the med-arbitration procedure prescribed by law and not through the staging of a strike/lockout. Intra union is a dispute within the union. Inter union is a dispute between two unions. Example, there is a certification election Union A vs. Union B. Union B wins and certifies itself as EBA, while Union A becomes a minority union. Union A believes that Union B won because of the help of management; so Union A goes on a strike to prove that they are the real representative. Now, they filed a notice of strike. They now alleged the ground of ULP, even if their actual ground is actually an inter-union dispute. That is an illegal strike because the negative substantial requirement is not met. (b) The strike must not be based on a violation on the CBA, except if the violation is gross in character Simple violation of a CBA is not treated as ULP but only as a mere grievance which should be processed through the grievance machinery and voluntary arbitration set forth therein. It becomes ULP only when it is gross in nature which means that there is flagrant and/or malicious refusal to comply with the economic provisions of the CBA by either the employer or the union. If it pertains to non-economic provisions, the same does not amount to ULP that may legally support a strike or lockout. (c) The strike must not be based on a trivial ground RELIANCE SURETY vs. NLRC There was a change in the seating arrangement in the office. The employees affected protested the transfer of their tables and seats, claiming that the change was without prior notice and was done merely to harass them as union members. The employees then had a heated discussion with the manager. The management then asked the employees to explain why no disciplinary action should be taken against them for misconduct. The employees refused to stay at their designated place. Subsequently, they were placed under preventive suspension and ultimately dismissed after investigation. The respondent union then filed a complaint for illegal dismissal. While the complaint for illegal dismissal and ULP was hibernating, the union filed a notice of strike predicated on ULP (dismissal of union officers/members, discrimination and coercion on employees). The SC held that the strike in question was illegal, for failure of the striking personnel to observe legal strike requirements. There is no question that the strike itself was prompted by no actual, existing ULP. In effecting a change in the seating arrangement in the office, the management merely exercised a reasonable prerogative employees could not validly question, much less assail as an act of ULP. LUZON MARINE vs. ROLDAN Facts: Petitioner union presented to Luzon Stevedoring a petition containing demands, and later filed a case with the CIR praying that the company be directed to comply immediately with the demands. U.O.E.F. intervened for the reason that the demand of the petitioner for recognition would violate an agreement entered into between them and the company. U.O.E.F. moved for the dismissal of the petition on the ground that the petitioner did not count with more than 30 members employed by the company. The CIR denied the motion to dismiss. But before receipt of said order, 65 alleged members of the petitioner struck without previously notifying Luzon Stevedoring. Held: Petitioner union contends that the evidence clearly shows that their members struck in order to show the company that they had more than 30 members and due to the threats of Villanueva to dismiss them from the company. The SC held that neither of these motives justified such a drastic measure as a strike. It was of no avail to the petitioner to

13 strike to show that they had more than 30 members, because the question of whether or not the petitioner had more than 30 members employed in the service of the company was at that time sub judice, both parties having submitted evidence before the court to prove their respective contentions. The second motive is also trivial. Villanueva was not an officer or employee of the company, and the petitioner knew that he had no power or authority to dismiss. He was merely an officer of U.O.E.F. Thus, if the purpose which the laborers intend to accomplish by means of a strike is trivial, unreasonable or unjust, or if in carrying on the strike the strikers should commit violence or cause injuries to persons or damage to property, the strike, although not prohibited by injunction, may be declared by the court illegal, with the adverse consequences to the strikers. (d) The strike must not be based on violation of labor standards The law enunciates certain procedures in resolving violations thereof. (e) Wage distortion is not a valid ground to strike The legislative intent that solution to the problem of wage distortions should be sought by voluntary negotiation or arbitration, and not by strikes. ILAW AT BUKLOD NG MANGGAGAWA vs. NLRC There was a wage order that caused a wage distortion within the company. Union then proposed to the management that the wage distortion be corrected by implementing a P25 wage increase, which it later lowered to P15. The Company, however, only effected a P7 wage increase. The union considered the managements move as the company ignoring their demands. As a result, the union decided to work only for 8 hours per day, against the company practice of having the workers work 10 to 14hour work shifts. This caused the company losses due to diminished productivity, prompting it to file a complaint seeking the declaration of the said unions strike/slowdown as illegal. The SC held that it was illegal. In the particular instance of "distortions of the wage structure within an establishment" resulting from "the application of any prescribed wage increase by virtue of a law or wage order, RA 6727 prescribes a specific, detailed and comprehensive procedure for the correction thereof, thereby implicitly excluding strikes or lockouts or other concerted activities as modes of settlement of the issue. Any dispute arising from wage distortions shall be resolved through the grievance procedure under the CBA and, if it remains unresolved, through voluntary arbitration. The pendency of a dispute arising from a wage distortion shall not delay the applicability of any increase in prescribed wage rates pursuant to the provisions of law or Wage Order. Moreover, the workers refusal to adhere to the work schedule is a slowdown, an illegal activity even in the absence of a no strike clause. (f) Strike to compel dismissal of employee A strike staged for unreasonably demanding the dismissal of an employee is illegal. (g) Union-recognition-strike A strike staged by a union to compel the employer to extend recognition to it as the EBA is illegal. A unionrecognition-strike is calculated to compel the employer to recognize ones union, and not the other contending group, as the employees bargaining representative to work out a CBA despite the striking unions doubtful majority status to merit voluntary recognition and lack of formal certification as the exclusive representative in the bargaining unit. It is only when the unions majority status is established through certification election, that the employers refusal to the demand for collective bargaining negotiations becomes illegal. (h) Premature strike illegal if staged without giving the employer reasonable time to consider and act on the demands of the union. (i) Strike to circumvent contracts and judicial orders A strike is illegal if used as a means to circumvent valid contractual commitments or to circumvent judicial orders lawfully issued.

(3) IT IS CONDUCTED STRICTLY IN ACCORDANCE WITH PROCEDURAL REQUIREMENTS OF LAW Procedural Requirements: (a) A notice of strike/lockout must be filed with the NCMB-DOLE. (b) There must be observance of the cooling-off period, which is 15 days in case of ULP, or 30 days in case of bargaining deadlock. (c) A strike/lockout vote must be taken. (d) A notice must be served to the NCMB-DOLE at least 24 hours prior to the taking of the strike/lockout vote. (e) A strike/lockout vote report should be submitted to the NCMBDOLE. (f) There must be observance of the 7-day waiting period or strike/lockout ban. 1st Requisite: FILING OF NOTICE OF STRIKE/LOCKOUT WITH NCMB Notice of Strike refers to the notification filed by a duly registered labor union with the appropriate NCMB regional branches informing the latter of its intention to go on strike because of alleged commission by the employer of unfair labor practice act/s or because of a deadlock in collective bargaining negotiations. Notice of Lockout refers to the notification filed by an employer with the appropriate NCMB regional branches informing the latter of its intention to temporarily cease its operation because of alleged commission by a duly registered labor union of unfair labor practice acts or because of a deadlock in collective bargaining negotiations. Notice or request for preventive mediation refers to the notification filed by either an employer or a duly registered labor union with the NCMB informing the latter of its desire to submit the issues between them for preventive mediation or conciliation. The issues that may be submitted for preventive mediation may be strikeable or nonstrikeable. 1) Strikeable issues parties may mutually agree that the same be treated or converted into a preventive mediation case, in which event, no strike or lockout may be legally and validly mounted based on the same issues since their conversion into a preventive mediation case has the effect of dismissing the notice of strike/lockout and removing it from the docket of notices of strike/lockout. 2) Non-strikeable issues the NCMB may, motu proprio, convert the same into a preventive mediation case or, alternatively, refer said issues to voluntary arbitration, if they are in the nature of unresolved grievances or to the Med-Arbiter, if they involve representation or inter-union disputes. When to file: 1) ULP at least 15 days from intended date of strike 2) Bargaining deadlock at least 30 days from intended date of strike Who may file: 1) With EBA The certified or duly recognized bargaining agent may file in case of bargaining deadlock or ULP. 2) Without EBA Any legitimate labor organization in the establishment but only on the ground of ULP. Contents of notice to strike: 1) Bargaining deadlock should state unresolved issues in the bargaining negotiations and the same should be accompanied by the written proposals of the union, counter-proposals of the employer and proof of a request for the conduct of a CBA negotiation conference by any of the parties to settle their differences. 2) ULP should state the acts complained of and the efforts taken to resolve the dispute amicable.

14 Note: Failure to comply with the content-requirement of a notice is not fatal. It devolves upon the regional branch of the NCMB to inform the concerned party of such fact. CLUB FILIPINO vs. BAUTISTA Facts: Petitioner and union had a CBA which expired on May 31, 2000. Within the freedom period, the union made several demands for negotiation but the company replied that it could not muster a quorum, thus no CBA negotiations could be held. In order to compel the company to negotiate, union filed a request for preventive mediation with NCMB but again failed. A notice of strike was filed by the union and thereafter, a strike was held. Held: The strike was legal. It is undisputed that the notice of strike was filed by the union without attaching the counter-proposal of the company. In cases of bargaining deadlocks, the notice shall state the unresolved issues in the bargaining negotiations and be accompanied by the written proposals of the union, the counter-proposals of the employer and the proof of a request for conference to settle differences. Any notice which does not conform with the requirements shall be deemed as not having been filed and the party concerned shall be so informed by the regional branch of the NCMB. The union cannot be faulted for its omission. The union could not have attached the counter-proposal of the company in the notice of strike as there was no such counter-proposal. The union filed a notice of strike, after several requests for negotiation proved futile. It was only after two weeks, when the company formally responded to the union by submitting the first part of its counter-proposal. Where to file regional branch of the NCMB having jurisdiction over the workplace of the union members; In case of multiple workplaces, the following rules must be observed: 1) Where two or more regional branches have jurisdiction over the workplace, the Branch that shall first receive the notice shall acquire jurisdiction over the dispute to the exclusion of the others. 2) By written agreement of both parties the venue of the dispute shall be deemed waived. NOTE: However, Article 233 provides that information and statements made in conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the NLRC. The NLRC, conciliators and similar officials shall not testify in any court or body regarding any matters taken up in conciliation proceedings conducted by them. Thus, if you are to file it with the NCMB, the NCMB cannot say that the notice is deficient because it cannot testify in any forum. Therefore, what the IRR says is erroneous. You do not file the notice of strike with the NCMB. It must be filed with the DOLE, so that there can be a determination as to the sufficiency of the strike notice. Service of copy of notice to strike may be served by personal service or by registered mail; if the party is represented by counsel or any authorized representative, service shall be made on the latter. Failure to serve the party of a copy of the notice to strike constitutes a clear violation of the IRR. GOLD CITY vs. NLRC Gold City's employees stopped working and gathered in a mass action to express their grievances. On the same morning, the strikers filed individual notices of strike. With the failure of conciliation conferences between petitioner and the strikers, Gold City filed a complaint for Illegal Strike. Thereafter, majority of the strikers returned to work, leaving 31 respondents who continued their protest. The strike was illegal for failure to comply with the legal requirements. The individual notices of strike filed by the workers did not conform to the notice required by the law to be filed since they were represented by a union which even had an existing CBA with Gold City. Neither did

the striking workers observe the strike vote by secret ballot, cooling-off period and reporting requirements. 2nd Requisite: OBSERVANCE OF THE COOLING-OFF PERIOD Cooling-off the parties shall not do any act which may disrupt or impede the early settlement of the dispute. They are obliged, as part of their duty to bargain collectively in good faith and to participate fully and promptly in the conciliation meetings called by the NCMB. General Rule: Cooling-off periods before the intended date of strike: 1) Bargaining deadlock 30 days 2) ULP 15 days Exception: When there is union-busting (ULP), 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. Although the 15-day cooling-off period need not be followed, all other requisites such as filing of notice of strike, conduct of strike vote balloting, and submission of strike vote report, must still be complied with. The 7-day waiting period must likewise be observed. Union-busting A ULP involving a dismissal from employment of union officers duly elected in accordance with the union constitution and bylaws, and the existence of the union is threatened by such dismissal. If there is no dismissal, there can be no union-busting. Promotion is not dismissal. A promotion, which is manifestly beneficial to an employee, should not give rise to a gratuitous speculation that it was made to deprive the union of the membership of the benefited employee. Unorganized establishment a notice of strike may be filed by any legitimate labor organization in behalf of its members but only on the ground of ULP because bargaining deadlock is not available to it since there can be no CBA negotiation in an establishment where there is no certified bargaining agent. Reckoning of cooling-off periods reckoned not on the date the union prepared the notice of strike, but from the time the notice of strike is filed with the NCMB, a copy thereof having been served on the other party concerned. The mere filing of the notice of strike without proof of valid service thereof to the other party concerned shall not trigger the running of the cooling-off periods. PAL vs. SECRETARY Facts: The CBA between PAL and PALEA provided for pay increases for various categories of employees. PAL and PALEA could not agree on various issues. PALEA accused PAL of bargaining in bad faith. PALEA filed a notice of strike. PAL filed a motion to dismiss PALEA's notice of strike for being premature as the issues raised were not strikeable since there was still an existing PAL-PALEA CBA. The mediator advised PALEA that the issues raised in the notice of strike were "appropriate only for preventive mediation," hence, not valid grounds for a lawful strike. However, when subsequently a representative of NCMB supervised the conduct of PALEA'S strike vote, PAL's counsel was baffled for it was inconsistent with the NCMB order treating the strike notice as a preventive mediation case. Thereafter, PALEA submitted the strike vote results to the NCMB. PAL petitioned to the Secretary of Labor to immediately assume jurisdiction over the dispute in order to avert the impending strike. Inexplicably, the Secretary failed to act promptly on PAL's petition for his assumption of jurisdiction. Seven days passed with no reaction from the Secretary, PALEA declared a strike paralyzing PAL's entire operations the next day. Late in the day, the Secretary issued an order assuming jurisdiction over the labor dispute which had already exploded into a full-blown strike, ordering the strikers to lift their pickets and return to work. The Secretary declared the strike valid.

15 Held: Under Art. 263, the Labor Secretary's authority to resolve a labor dispute within 30 days from the date of assumption of jurisdiction, encompasses only the issues in the dispute, not the legality or illegality of any strike that may have been resorted to in the meantime. The jurisdiction to decide the legality of strikes and lock-outs is vested in Labor Arbiters, not in the Secretary. In ruling on the legality of the PALEA strike, the Secretary acted without or in excess of his jurisdiction. PALEA's strike was illegal for three reasons: 1) It was premature for there was an existing CBA. The law expressly provides that neither party to a CBA shall terminate nor modify such agreement during its lifetime. 2) It violated the no-strike provision of the CBA. 3) The NCMB had declared the notice of strike as "appropriate for preventive mediation." The effect of that declaration (which PALEA did not ask to be reconsidered or set aside) was to drop the case from the docket of notice of strikes, as if there was no notice of strike. During the pendency of preventive mediation proceedings no strike could be legally declared. NOTE: The NCMB has authority to convert a notice of strike filed by the union into a preventive mediation case if it finds that the real issues raised therein are non-strikeable in character. Although not so provided in the rules, this authority may also be validly exercised over notices of lockout filed by employers for the same reason or justification that the notice of lockout which was already converted into a preventive mediation case can no longer be invoked to support the staging of a valid lockout. Once converted, the notice will be dropped from the docket of notices of strike/lockout. According to Father Nazareno of the Ateneo de Davao College of Law, reclassification of notice of strike to preventive mediation must have been verified. The opposing counsel should have said that such is a mere allegation that should be proven. To prove such matter, they would have gone to NCMB and request a certification. However, the NCMB cannot issue a certification that the notice of strike has in fact reclassified to a preventive mediation case because of Art. 233, which provides that the NLRC, conciliators and similar officials cannot testify in any court or body regarding any matters taken up in conciliation proceedings conducted by them because information and statements made in conciliation proceedings shall be treated as privileged communication. Hence, there could not have been evidence of the allegation that there was change from notice of strike to preventive mediation because the mediators are prohibited by law to testify. But it is also worth noting that under the Rules of Court, privilege communication can be waived. 3rd Requisite: STRIKE/LOCKOUT VOTE MUST BE TAKEN Strike vote balloting 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. The purpose is to ensure that the decision to strike broadly rests with the majority of the union members in general and mot with a mere minority. At the same time, it is meant to discourage wildcat strikes, union bossism and even corruption. This process is mandatory, even if the union acted in good faith in the belief that the employer has committed ULP. Duration of the validity of the majority approval of the strike for the duration of the dispute based on substantially the same grounds considered when the strike vote was taken. Failure to comply illegal strike 4th Requisite: 24-HOUR NOTICE BEFORE STRIKE VOTE BALLOTING

24-hour notice must be served to the NCMB prior to the taking of the strike/lockout vote balloting, informing it of the unions decision to conduct a strike vote or employers decision to stage a lockout vote, as well as the date, place, and time thereof. This notice is mandatory for the conduct of the strike. CAPITOL MEDICAL vs. NLRC Facts: Petitioners refusal to negotiate a CBA with the Union resulted in a union-led strike. The Union requested for a meeting to discuss matters pertaining to a negotiation for a CBA. However, the petitioner rejected the proposed meeting. Petitioner filed a Petition for the Cancellation of the Unions Certificate of Registration. Apparently unaware of the petition, the Union reiterated its proposal for CBA negotiations. The Union filed a Notice of Strike. A series of conferences was conducted before the NCMB but no agreement was reached. The Union had apparently failed to furnish the NCMB with a copy of a notice of the meeting where the strike vote was conducted. Subsequently, the Union submitted to the NCMB the minutes of the alleged strike vote held. Thereafter, the officers and members of the Union staged a strike. Held: The Union failed to comply with the second paragraph of Section 10, Rule XXII of the IRR, which provides "...the union or the employer shall furnish the regional branch of the Board and notice of meetings referred to in the preceding paragraph at least 24 hours before such meetings..." Although this provision is not provided in the Labor Code, nevertheless, the same was incorporated in the IRR. A union intending to stage a strike is mandated to notify the NCMB of the meeting for the conduct of strike vote, at least 24 hours prior to such meeting. Unless the NCMB is notified of the date, place and time of the meeting of the union members for the conduct of a strike vote, the NCMB would be unable to supervise the holding of the same, if and when it decides to exercise its power of supervision. The failure of a union to comply with the 24-hour notice requirement will render the subsequent strike staged by the union illegal. Purpose of the 24-hour notice: 1) to inform the NCMB of the intent to conduct a strike vote; 2) to give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent any acts of violence and/or irregularities attendant thereto; and 3) should the NCMB decide on its own initiative or upon the request of an interested party including the employer, to supervise the strike vote, to give it ample time to prepare for the deployment of the requisite personnel, including peace officers if need be. 5th Requisite: STRIKE/LOCKOUT VOTE REPORT SUBMITTED TO NCMB AT LEAST 7 DAYS BEFORE INTENDED DATE OF STRIKE/LOCKOUT Purpose: 1) to reasonably regulate the right to strike or lockout which is essential to the attainment of legitimate policy objectives embodied in the law 2) to give assurance that a strike vote has been taken 3) if the report concerning it is false, to give the majority of the members the opportunity to take appropriate remedy before it is too late. When to submit at least 7 days before the actual staging of the intended strike/lockout, subject to the observance of the cooling-off periods provided under the law. 6th Requisite: OBSERVANCE OF THE 7-DAY WAITING PERIOD 7-day waiting period After taking the strike/lockout vote, the union or employer should furnish the NCMB the results of the voting at least 7

16 days before the actual staging of the intended strike/lockout, subject to the cooling-off periods. Purpose The 7-day strike ban is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. A majority vote assures the union that it will go to war against management with the strength derived from unity and, hence, with better chance to succeed. Cooling-off period vs. Waiting period: 1) The cooling-off period is counted from the time of the filing of the notice of strike/lockout up to the intended or actual staging thereof. The 7-day waiting period is reckoned from the time the strike/lockout vote report is submitted to the NCMB. 2) The 15/30 day cooling-off period is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the NCMB conciliator, while the 7-day strike ban is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. Problem: What happens if the strike vote was taken and reported within the cooling-off period? The 7-day period shall be counted from the day following the expiration of the cooling-off period. The 7 days should be added to the cooling-off period of 15/30 days, and it is only after the lapse of the total number of days after adding the two periods that the strike/lockout may be lawfully staged. In case of union-busting, the law allows the complete disregard of the 15/30-day cooling-off period, but the requirement of the 7-day waiting period, together with the other requirements, should be complied with. SAMAHAN NG MANGGAGAWA SA MOLDEX vs. NLRC After the negotiations for the renewal of the CBA between petitioner union and respondent Moldex ended in a deadlock, petitioner filed a notice of strike before the NCMB. A strike vote was conducted, but the results thereof were never submitted to NCMB. Petitioner went on strike. The strike was illegal. Article 264 provides in part that no strike shall be conducted without first having filed a notice of strike or without first having filed a notice of strike, or without the necessary lockout or strike vote first having been obtained and reported to the Ministry. In this case, the result of the strike vote was not submitted to the NCMB making the strike staged illegal. Also, they committed acts of violence, threats, coercion and intimidation during the strike. SUKHOTHAI vs. CA At the time the strike was staged, voluntary arbitration between the parties was ongoing. The issue to be resolved under those proceedings pertained to the very same issues stated in the Notice of Strike. Strikes staged in violation of agreements providing for arbitration are illegal, since these agreements must be strictly adhered to and respected if their ends are to be achieved. Furthermore, the cooling-off period and the seven-day strike ban after the strike-vote report were intended to be mandatory, and in case of union busting where the existence of the union is threatened, it is only the 15-day cooling-off period that may be dispensed with. NFSW vs. OVEJERA Facts: NFSW has concluded with CAC a CBA. NFSW struck allegedly, to compel the payment of the 13th month pay under PD 851. NFSW filed with the Ministry of Labor a notice of strike based on non-payment of the 13th month pay. Six days after, NFSW struck. After the commencement of the strike, a report of the strike vote was filed by NFSW with MOLE. CAC filed a petition to declare the strike illegal, as the strike was declared before the expiration of the 15-day cooling-off period for ULP strikes, and the strike was staged before the lapse of seven days from the submission to MOLE of the result of the strike vote.

17 Held: When the law says "the labor union may strike should the dispute remain unsettled until the lapse of the requisite number of days (cooling-off period) from the filing of the notice," the unmistakable implication is that the union may not strike before the lapse of the cooling-off period. Similarly, the mandatory character of the 7-day strike ban after the report on the strike vote 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, subject to the (prescribed) cooling-off period." It must be stressed that the requirements of cooling-off period and 7-day strike ban must both be complied with, although the labor union may take a strike vote and report the same within the statutory cooling-off period. If only the filing of the strike notice and the strike vote report would be deemed mandatory, but not the waiting periods so specifically and emphatically prescribed by law, the purposes for which the filing of the strike notice and strike vote report is required would not be achieved, as when a strike is declared immediately after a strike notice is served, or when as in the instant case the strike vote report is filed after the strike had actually commenced. Such interpretation of the law ought not and cannot be countenanced. It would be self-defeating for the law to imperatively require the filing on a strike notice and strike vote report without making the prescribed waiting periods mandatory. Negative procedural requirements: 1) there must not have been any violation of the duty to bargain 2) there must be no compulsory or voluntary arbitration of the dispute 3) there must be no violation of the No Strike Clause, except if ULP (4) IT MUST BE CARRIED OUT IN CONSONANCE WITH THE AGREEMENT OF THE PARTIES LIBERAL LABOR UNION vs. PHILIPPINE CAN COMPANY Petitioner and respondents had a labor dispute. By the way of compromise, a CBA was entered into between them. One of the provisions provided that if a worker has a complaint, the same shall first be submitted to a grievance committee. After the CBA was concluded, there was a labor dispute. Because the matter could not be brought to the grievance committee, the union struck. It was held that the union, by its strike, has acted beyond its bound in the CBA. The main purpose of the parties in adopting a procedure in the settlement of their disputes is to prevent a strike. It is true that the management has failed to do its duty in connection with the formation of a grievance committee, but this failure does not give the labor the right to declare a strike out-right, for its duty is to exhaust all available means within its reach before resorting to force. This is a compulsory arbitration which received the sanction of the court. INSUREFCO UNION vs. INSUREFCO The union through its leaders submitted to the company, sets of economic demands. When said demands were submitted, the union was advised that the general manager of the company was absent and no action could be taken on these demands until after his return. The members of the union, without notice or warning, struck. Because of this walkout, the company filed a petition praying that the strike be declared illegal and that the company be authorized to dismiss those responsible for the strike. The strike was illegal. The walkout was premature as it was declared without giving to the general manager, or the BOD of the company, reasonable time within which to consider and act on the demands of the Union. Moreover, it is also worth noting that in a previous labor dispute involving the same parties, they had an agreement that all labor-management disputes shall be taken up in a Grievance Committee. But, far from abiding by this form of arbitration, the union declared the instant strike as already pointed out. Strikes held in violation of the terms contained in a CBA are illegal especially when they provide for conclusive arbitration clauses. A. SORIANO AVIATION vs. EMPLOYEES ASSOCIATION Facts: Petitioner and respondent entered into a CBA. The CBA included No-Strike, No-Lock-out clause. On several dates, which were legal holidays and peak season, some of the members of the union refused to render overtime work as prompted by their disagreement with the imposed new work schedule. Petitioner treated it as a concerted action which is a violation of the "No-Strike, No-Lock-out Clause." Thus, it suspended the workers and filed an illegal strike against them. The attempted settlement having been futile, the union filed a Notice of Strike. Despite the conciliation, no amicable settlement was arrived, and the union went on another strike. Petitioner then filed another complaint for illegal strike on the ground of alleged force and violence. Held: The first strike, having been grounded on a non-strikeable issue and without complying with the procedural requirements, is a violation of the No Strike-No Lockout Policy in the existing CBA. Respecting the second strike, where the Union complied with procedural requirements, the same was not a violation of the No Strike- No Lockout provisions, as a No Strike-No Lockout provision in the CBA is a valid stipulation but may be invoked only by employer when the strike is economic in nature. It would be inapplicable to prevent a strike which is grounded on ULP. In the present case, the Union believed in good faith that petitioner committed ULP when it went on strike. The second strike became invalid due to the commission of illegal action in its course. Even if the purpose of a strike is valid, the strike may still be held illegal where the means employed are illegal. So is picketing or the obstruction to the free use of property or the comfortable enjoyment of life or property, when accompanied by intimidation, threats, violence, and coercion as to constitute nuisance. Good faith strike It is a well-established policy enunciated in several labor cases that a strike does not automatically carry the stigma of illegality even if no ULP was committed by the employer. It suffices if such belief in good faith is entertained by labor as the inducing factor for staging a strike. Where the union believed that the employer committed ULP and the circumstances warranted such belief in good faith, the resulting strike may be considered legal. Indeed, the presumption of legality prevails even if the allegation of ULP is subsequently found to be untrue provided that the union and its members believed in good faith in the truth of such averment. For instance, a strike based on a non-strikeable ground is generally an illegal strike; corollarily, a strike grounded on ULP is illegal if no such acts actually exist. As an exception, however, even if no ULP acts are committed by the employer, if the employees believe in good faith that ULP acts exist so as to constitute a valid ground to strike, then the strike held pursuant to such belief may be legal. (5) IF CARRIED OUT WITH A LAWFUL PURPOSE, THERE MUST BE NO ACTS OF VIOLENCE, COERCION OR INTIMIDATION Lockouts Use of force, violence, coercion, threats or intimidation by the employer to obstruct, impede or interfere with any peaceful picketing by employees during any labor controversy or in the existence of their right to self-organization or collective bargaining, or aiding or abetting such obstruction or interference, is prohibited. Strikes No person engaged in picketing shall commit any act of violence, coercion or intimidation. A strike becomes illegal if in carrying it out, such coercion, force, intimidation, violence with physical injuries, sabotage and use of unnecessary and obscene language or epithets were committed by the strikers. Pervasive violence The mere occurrence of violence does not taint a Strike with illegality. The violence that is required in order for a Strike to be classified as illegal must be PERVASIVE VIOLENCE, which means that the strike has begun with violence, or it is perpetuated with violence.

Both purpose and means must be legal to make the strike legal. Where violence occurs sporadically, the liability is individual. Effect of violence committed by both union and management If violence were committed by both management and employees, such violence cannot be a ground for declaring the strike illegal. The law will leave the parties to absorb their own losses. MSMG (GREENFIELD) vs. RAMOS Facts: Petitioner (local union) is an affiliate of ULGWP (federation). A local union election was held under the action of the federation. The defeated candidates filed a petition for impeachment. The local union held a general membership meeting. Several union members failed to attend the meeting. The local union requested the company to deduct the union fines from the wage of those union members who failed to attend the general membership meeting. The company then sent a reply to petitioners request stating it cannot deduct fines without going against certain laws. The imposition of the fine became the subject of a bitter disagreement between the Federation and the local union culminating to the latters declaration of general autonomy from the former. Subsequently, the officers were expelled from the federation. The federation advised the company of the expulsion of the 30 union officers and demanded their separation pursuant to the Union Security Clause in the CBA. The Federation filed a notice of strike with the NCMB to compel the company to effect the immediate termination of the expelled union officers. Under the pressure of a strike, the company terminated the 30 union officers from employment. The petitioner then filed a notice of strike. The Secretary of Labor dismissed the petition stating it was an intra-union matter. The union members staged a walkout and officially declared a strike. The strike was attended by violence. Held: The issue is not a purely intra-union matter as it was later on converted into a termination dispute when the company dismissed the petitioners from work without the benefit of a separate notice and hearing. The strike was not illegal as it was based on the termination dispute and petitioners believed in good faith that in dismissing them, the company was guilty of ULP. Furthermore, a "no strike, no lock out" provision can only be invoked when the strike is economic in nature. Such a provision cannot be used to assail the legality of a strike which is grounded on ULP. On the allegation of violence, the parties agreed that there were violent incidents resulting to injuries to both sides: the union and management. The evidence on record shows that the violence cannot be attributed to the striking employees alone for the company itself employed hired men to pacify the strikers. With violence committed on both sides, the management and the employees, such violence cannot be a ground for declaring the strike as illegal. Liability for damages General Rule: Union officers and members who caused damages are liable individually. Exception: The union shall be liable if there is authorization or ratification of acts of the members. FIRST CITY INTERLINK vs. ROLDAN-CONFESOR Facts: NMF-NFL filed a notice of strike with the BLR for ULP against First City Interlink. The parties failed to reach an agreement so that the union went on strike. Consequently, several workers were dismissed. The union filed another notice of strike. Conciliation conferences were held but the union again went on strike. The MOLE ordered the striking workers to return to work. Only 66 employees were accepted by petitioner conditioned on the submission of certain requirements. The Secretary of Labor ruled for the legality of the strike. Held: The strike was illegal. It was not shown that a strike vote was obtained before the declaration of strike. The statement in the same

18 order of the Labor Secretary that a notice of strike had been filed because several conciliation conferences failed due to management's consistent refusal to appear is contrary to evidence because management was duly represented during the conciliation proceedings prior to the strike. Further, the union failed to comply with the required 7-day strike ban. The union was in bad faith when it conducted the strike because instead of attending the conciliation meetings with petitioner, it went on strike. The strike was also attended by pervasive and widespread violence. The commission of these illegal acts was neither isolated nor accidental but deliberately employed to intimidate and harass the employer and the public. However, responsibility for these illegal acts must be on an individual and not collective basis. Although the strike was illegal because of the commission of illegal acts, only the union officers and strikers who engaged in violent, illegal and criminal acts against the employer are deemed to have lost their employment status. Union members who were merely instigated to participate in the illegal strike should be treated differently. Strike breaker any person who obstructs, impedes or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing by employees during any labor controversy affecting wages, conditions of work or in the exercise of right to self-organization or collective bargaining. Use or employment of strike breakers is prohibited by law. Cases where use of force, violence, coercion, etc. was held illegal: (a) Strikers hijacked the employers buses and barricaded the terminal. (b) Non-strikers were mauled and suffered physical injuries. (c) Strikers broke the truck side and windows, and threw empty bottles at non-strikers. (d) Strikers resorted to terrorism to prevent non-strikers from working. (e) Acts of sabotage were committed by the strikers against property. (f) Strikers hurled stones which smashed glass windows. (g) Strikers shook their fists and threatened non-striking employees with bodily harm if they persisted to proceed to the workplace. (6) IT MUST NOT BE IN VIOLATION OF ANY INJUNCTION ORDER General Rule: Article 254 provides that no temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity. Exceptions: (a) injunction power of the NLRC (b) prohibited activities during a strike or lockout (c) assumption/certification power of the DOLE Secretary in national interest cases Picketing General Rule: Injunction cannot be issued against the conduct of picketing by the workers, as it is a part of the freedom of speech. Exception: (a) Where picketing is carried out through the use of illegal means (b) Where picketing involves the use of violence and other illegal acts (c) Where picketing affects the rights of third parties and injunction becomes necessary to protect such rights. PAFLU vs. BAROT Facts: L. C. Eugenio owns two theaters and leased them to two corporations. These corporations entered into a CBA with the PAFLU. L. C. Eugenio sold the theaters and terminated the lease. The buyer then leased the theaters to Rema, Inc. As a result of the contract of sale and the termination of the lease of the theaters, Rema began to operate the two theaters, employing persons other than those previously employed,

which are members of PAFLU. The unions to which the employees belong started picketing the said theaters. Rema prayed for declaratory relief with preliminary injunction. Held: Generally, no court shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, except: (a) if unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained; (b) if substantial and irreparable injury to complainants property will follow; (c) if as to each item of relief granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; (d) if complainant has no adequate remedy at law; (e) if the public officers charged with the duty to protect complainants property are unable or unwilling to furnish adequate protection. What may be enjoined is the use of violence or the act of unlawful picketing, such as the commission of acts of violence or intimidation against employees or those who want to see the shows, not lawful picketing. In this case, while the court has jurisdiction, it had transcended its powers because it enjoined petitioners from picketing, a legitimate labor right, and because the procedure expressly outlined in the law for the issuance of an injunction was not strictly followed. PAFLU vs. CLORIBEL Picketing by PAFLU was directed against METBANK at the ground floor of the Wellington Building. Wellington complained, however, that the picketers were annoyingly blocking the common passageway of the building. Wellington charged the picketing PAFLU. 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. The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, courts are not without power to confine the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third parties or "innocent bystanders" if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. In this case, Wellington is a mere "innocent bystander". He is entitled to seek protection of his rights from the courts and the courts may, accordingly, legally extend the same. The picket is merely regulated to protect the rights of third parties. Strikes or lockouts General Rule: Strikes and lockouts cannot be enjoined. Exceptions: (a) When illegal acts are committed in the course of the strike. (b) When the union declares a strike based on non-strikeable grounds. (c) Although there are no illegal acts, an injunction may be issued against the strike itself the notice of strike has been converted into a preventive mediation case. Upon such conversion, there is no more strike to speak of. CALTEX EMPLOYEES ASSOCIATION vs. LUCERO Facts: On March 25, the union delivered a strike notice to the security guard of the BLR. Because the intervening days were holidays, the entry

19 of the notice on the official record was only made on March 30. Conciliation conferences were held and attended by the representatives of the union and the Caltex, during which the union claimed that its strike notice would expire 30 days from March 25 and that the employees were free to and would strike anytime after April 23. This threat was confirmed by the union. The company, on the other hand, contended that the 30-day period should commence to run only on March 30, which was upheld as the correct view by the Undersecretary of Labor. In view of the union's threat to strike within the 30-day cooling off period, the company filed a petition for injunction. Held: No court shall have jurisdiction to issue any restraining order, temporary or permanent, in any case growing out of a labor dispute. The only exception that the law makes is when in the opinion of the President there exists a labor dispute in an industry indispensable to the national interest and such dispute is certified by the President. In such case, the court may issue a restraining order pending an investigation by the court of the labor dispute as thus certified by the President. If a restraining order is issued when the strike is contrary to law, or if carried out it may cause injury to the property of the employer, such restraining order can only be issued upon compliance with the procedural requirements, namely: (1) there must be a hearing, of which due notice should be given to both parties, where the testimony of witnesses is taken in support of the petition or opposition, with opportunity of cross-examination; and (2) there must be a showing that the public officers charged with the duty to protect petitioner's property are unable or unwilling to furnish adequate protection. In other words, there cannot be any ex parte grant of a restraining order in a case involving a labor dispute. It appearing that this procedure was not followed by the court, the restraining order issued is illegal. SAN MIGUEL vs. NLRC Facts: NCMB converted the union's notices into preventive mediation as it found that the real issues raised are non-strikeable. The said conversion has the effect of dismissing the notices of strike filed by the union. Therefore, when the NCMB ordered the preventive mediation, the union had thereupon lost the notices of strike it had filed. Subsequently, however, it still defiantly proceeded with the strike while mediation was ongoing. Petitioner sought a permanent injunction to enjoin the unions strike. The NCMB having no coercive powers of injunction, petitioner sought recourse from the NLRC, which then issued a TRO only for free ingress to and egress from petitioners plants, but did not enjoin the unlawful strike itself. Held: At the time the injunction was being sought, there existed a threat to revive the unlawful strike as evidenced by the flyers being circulated. A declaration of strike without first having filed the required notice is a prohibited activity, which may be prevented through an injunction. Clearly, the NLRC should have granted the injunctive relief to prevent the grave damage brought about by the unlawful strike. Also noteworthy is NLRCs disregard of petitioners argument pointing out the unions failure to observe the CBA provisions on grievance and arbitration. Petitioner herein evinced its willingness to negotiate with the union by seeking for an order from the NLRC to compel observance of the grievance and arbitration proceedings. Respondent however resorted to force without exhausting all available means within its reach. Such infringement of the CBA provisions constitutes further justification for the issuance of an injunction against the strike. METROLAB vs. CONFESOR Any act committed during the pendency of the dispute that tends to increase the tensions between the parties should be considered an act of exacerbation. One must look at the act itself, not on speculative reactions. A misplaced recourse is not needed to prove that a dispute has been exacerbated. For instance, the Union could not be expected to file another notice of strike, for this would depart from its theory of the case that the layoff is subsumed under the

instant dispute, for which a notice of strike had already been filed. On the other hand, to expect violent reactions from the Union is to expect it to commit acts disruptive of public order or acts that may be illegal. Under a regime of laws, legal remedies take the place of violent ones. In this case, the Union registered their dissent by swiftly filing a motion for a cease and desist order. Contrary to petitioners allegations, the Union strongly condemned the layoffs and threatened mass action if the Secretary fails to timely intervene. The unilateral action of management is a deliberate violation of the injunction of the Secretary against committing acts which would exacerbate the dispute. Unless such act is enjoined, the Union will be compelled to resort to its legal right to mass actions and concerted activities to protest and stop the said management action. This mass layoff is clearly one which would result in a very serious labor dispute unless the Secretary swiftly intervenes. POWER TO ASSUME JURISDICTION AND CERTIFY Powers of the Secretary of Labor when a labor dispute causes or will likely to cause a strike or lockout in an industry indispensable to the national interest: (1) Assume jurisdiction over labor dispute and decide it himself; (2) Certify it to the NLRC for compulsory arbitration, in which case, it will be the NLRC which shall hear and decide it. Note: These powers may be exercised even before the actual staging of a strike or lockout since Article 263(g) does not require the existence of a strike or lockout but only a labor dispute involving national interest. Injunctive effect automatic The assumption or certification by the Secretary of Labor has the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If a strike/lockout is already taking place at the time of the assumption or certification, all striking or locked-out employees must immediately return to work and the employer is dutybound to immediately resume operations and readmit all of them under the same terms and conditions prevailing before the strike or lockout. Power of the President to exercise powers granted under Art. 263(g): (1) Power to assume direct jurisdiction over any labor dispute involving industries that, in his opinion, are indispensable to the national interest; and (2) Power to determine such vital industries. Note: The Secretary of Labor is given plenary discretion in determining which of the industries would qualify as indispensable to the national interest. But the discretion is subject to judicial review. General Banking Act (Sec. 22). Strikes and Lockouts. The banking industry is hereby declared as indispensable to the national interest and, notwithstanding the provisions of any law to the contrary, any strike or lockout involving banks, if unsettled after 7 calendar days shall be reported by the Bangko Sentral to the Secretary of Labor who may assume jurisdiction over the dispute or decide it or certify the same to the NLRC for compulsory arbitration. However, the President of the Philippines may at any time intervene and assume jurisdiction over such labor dispute in order to settle or terminate the same. Indispensable to the national interest standard set for the DOLE Secretary to assume jurisdiction over a labor dispute; if not indispensable to the national interest, it shall constitute grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the DOLE Secretary. Certified Labor Disputes national interest cases certified by the DOLE Secretary to the NLRC for compulsory arbitration. This is to ensure industrial peace based on social justice and national interest by having a full and complete settlement or adjudication of all labor disputes

20 between the parties. The NLRC in such case does not take the role of a judicial court, but as an administrative body charged with the duty to implement the order of the Secretary. Its authority does not include the power to amend the Secretarys order. Effects of Certification: (1) On intended or impending strike or lockout automatically enjoined, notwithstanding the filing of any motion for reconsideration of the certification order or the non-resolution of any such motion which may have been duly submitted to the Secretary of Labor. (2) On actual strike or lockout all striking or locked-out employees shall immediately return to work and the employer shall resume operations and readmit all workers. (3) On cases already filed or may be filed all cases between the same parties shall be considered absorbed by the certified case, and shall be decided by the appropriate Division of the NLRC. (4) On other pending cases the parties to a certified case, under pain of contempt, are required to inform their counsels and the NLRC Division concerned, of all cases pending with the Labor Arbiters or VAs relative or incident to the certified case before it. RETURN-TO-WORK ORDER Return-to-work order part of assumption/certification order even if not expressly stated therein. It is not necessary for the DOLE Secretary to issue another order directing the strikers to return to work. It is executory in character and 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 determination is being made. Return-to-work order is also enforceable irrespective of the legality of the strike. Its purpose is to maintain the status quo while the determination of legality is being made. Otherwise, the strikers who contend that the strike is legal can refuse to return to their work. Voluntary return to work The act of the strikers in voluntarily returning to work does not result in the waiver of their original demands. Such an act of returning to work only means that they desisted from the strike which desistance is a personal act of the strikers and cannot be used against the union and interpreted as a waiver by it of its original demands for which the strike was adopted as a weapon. It likewise does not have the effect of rendering as moot and academic the issue of the legality of the strike. Filing of motion for reconsideration does not affect the enforcement of a return-to-work order issued as a consequence of an assumption or certification order. It is immediately executory notwithstanding the filing of a motion for reconsideration. It must be strictly complied with even during the pendency of any petition questioning its validity. UNION OF FILIPRO EMPLOYEES vs. NESTL Facts: UFE filed a notice of strike against Nestle and filed a complaint for ULP. The MOLE assumed jurisdiction over the dispute. Notwithstanding the automatic injunction and an absence of a restraining order, the union members staged a strike and continued to man picket lines. The union officers and members distributed leaflets to employees and passers-by advocating a boycott. Hence, Nestle filed a petition to declare the strike illegal. The MOLE issued another return to work order but the union officers and members continued with the strike. Held: A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus, illegal. Moreover, the union officers and members who have participated in the said illegal activity, are, as a result, deemed to have lost their employment status. 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. 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. Regardless therefore of their motives, or the validity of their claims, the striking workers must cease and/or desist from any and all acts that tend to, or undermine this authority of the Secretary of Labor, once an assumption and/or certification order is issued. They cannot, for instance, ignore return-towork orders, citing ULP on the part of the company, to justify their actions. Furthermore, the return-to-work order is issued pending the determination of the legality or illegality 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 the strike is illegal, for the purpose precisely is to maintain the status quo while the determination is being made. Otherwise, the workers who contend that their strike is legal can refuse to return to their work and cause a standstill on the company operations while retaining the positions they refuse to discharge or allow the management to fill. Worse, they will also claim payment for work not done, on the ground that they are still legally employed although actually engaged in the activities inimical to their employer's interest. This is like eating one's cake and having it too, and at the expense of the management. UNIVERSITY OF SAN AGUSTIN EMPLOYEES UNION vs. CA Facts: There was a labor dispute. Both parties made a joint request for the Secretary of Labor to assume jurisdiction over the dispute. The Secretary then assumed jurisdiction, and with such assumption of jurisdiction, any strike or lockout was strictly enjoined. The day after the Secretary assumed jurisdiction, and on the same day that the assumption order was supposedly served to both parties, the Union staged a strike. At 6:45 a.m. of the same day, the sheriffs served the assumption order on the union. The Union members refused to receive a copy of the order assailing that only the Union President is authorized to receive the same. At approximately 8:45 a.m., the sheriffs posted copies of the order at the main gate of the University and at the union's office. At 9:20 a.m., the sheriffs served the order on the University. But the Union went ahead with the strike. At around 5:25 p.m., the Union president arrived and received the order. Basing on the CA's decision that the strike was illegal, the University served the striking employees with their notices for termination. Held: The order was served at 8:45 a.m. The strikers then should have returned to work immediately. However, they persisted with their refusal to receive the order and waited for their union president to receive the same at 5:25 p.m. It is not correct that the Secretary always gives 24 hours to the striking workers within which to return to work. It has no basis in law and jurisprudence. If a strike has already taken place at the time of assumption of jurisdiction or certification, all striking or locked out employees shall immediately return to work. The phrase "immediately return to work" can never be interpreted to mean "within 24 hours." Such phrase indicates an almost instantaneous or automatic compliance for a striker to return to work once an assumption order has been duly served. PNOC vs. NLRC No order, decision or resolution - not even one that is immediately executory - is binding and automatically executory unless and until the proper parties are duly notified thereof. In labor cases, both the party and its counsel must be duly served their separate copies of the order, decision or resolution; unlike in ordinary judicial proceedings where notice to counsel is deemed notice to the party. The union precisely impugns the validity of the service of the DOLE certification order. They maintain that said order was not validly served on them, since their supposed copy was left only with a security guard at the gate of the office premises of the union. Allegedly, no effort was made to serve the same to an authorized person inside their office. The service of the order upon counsel for the umbrella union should not be

21 deemed a valid service upon the respondent union, which had its own counsel of record who appeared before the NCMB. It has also been previously held that service to a security guard of the building where the principal holds office is not a valid service. Nevertheless, upon verified information of the existence of the certification order, members of respondent labor unions promptly ended their strike and returned to their jobs. Hence, the strike was legal. Effect of refusal to return to work (Prohibited activities): (1) Valid ground of loss of employment TELEFUNKEN vs. CA Facts: The Secretary intervened and assumed jurisdiction over the dispute of the parties. The assumption order was personally served on the representatives of the company, counsel of the Union, and twice on the Union president, but both union representatives refused to acknowledge receipt thereof. Despite the assumption order, the Union struck. Two days later, the Secretary issued an order directing the striking workers to return to work. Notice of the order was sent to the striking Union members but still some of them refused to heed the order and continued with their picket. Held: Once jurisdiction over the labor dispute has been properly acquired by the competent authority, that jurisdiction should not be interfered with by the application of the coercive processes of a strike. Defiance to the assumption and return-to-work orders of the Secretary of Labor after he has assumed jurisdiction is a valid ground for loss of the employment status of any striking union officer or member. Furthermore, the claim of petitioners that the assumption and returnto-work orders issued by the Secretary were allegedly inadequately served upon them is untenable in the light of what have already been clearly established in this case, that the union president refused to acknowledge receipt of the order. Therefore, the strike of the Union cannot be viewed as anything but illegal for having been staged in open and knowing defiance of the assumption and return-to-work orders. ALLIED BANKING vs. NLRC Mere participation of union members in an illegal strike should not automatically result in their termination from employment. However, the case at bar involves a different issue as a perusal of the records shows that respondents were terminated from employment by reason of their defiance to the return-to-work order of the Secretary of Labor. Respondents staged a strike 14 days after then Labor Minister assumed jurisdiction over the dispute between them and the bank. Thereafter, respondents again staged a strike while their labor dispute with the Bank was still pending before Minister. Hence, respondents' failure to immediately comply with the return-to-work order cannot be condoned. Defiance of the return-to-work order of the Secretary would constitute a valid ground for dismissal. Abandonment of work as a ground to dismiss vs. Abandonment of work under the law on strike To constitute abandonment of position, there must be concurrence of the intention to abandon and some overt act from which it may be inferred that the employee concerned has no more interest in working, while abandonment as a defense against dismissals cannot, however, be validly invoked in dismissals resulting from a striker's defiance of a DOLE Secretary's assumption order, much less as a defense against the ban on strikes after assumption of jurisdiction by the Secretary. (2) Union officers/members is deemed to participate in illegal acts ST. SCHOLASTICA'S COLLEGE vs. TORRES Striking union members, terminated for abandonment of work after failing to comply strictly with a return-to-work order, cannot be reinstated. The on-going labor dispute at the school adversely affects the national interest. The on-

going work stoppage at the school unduly prejudices the students and will entail great loss in terms of time, effort and money to all concerned. Respondent UNION's failure to immediately comply with the return-to-work order cannot be condoned. Any declaration of a strike or lockout after the Secretary has assumed jurisdiction over the labor dispute is considered an illegal act. Any worker or union officer who knowingly participates in a strike defying a return-to-work order may, consequently, "be declared to have lost his employment status." Hence, the strikers have forfeited their right to be readmitted, having abandoned their positions, and so could be validly replaced. The striking union officers and members tried to return to work only 11 days after the conciliation meetings ended in failure, or 20 days after they received copy of the first return-to-work order. FADRIQUELAN vs. MONTEREY 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. The participating union officers have to be properly identified. However, although the witnesses did not say the respondent union officers took part in the work slowdown, they were not able to give a credible excuse for being absent from their respective working areas during the slowdown. Hence, the termination of these officers is valid. (3) Effect on employer may be held liable to pay backwages, damages and other positive or affirmative reliefs, even criminal prosecution against him. (4) Contempt The Secretary of Labor and Employment may cite the defiant party in contempt pursuant to the power vested in him under the Labor Code. Payroll reinstatement There is payroll reinstatement when the employer, instead of physically reinstating the employee to his former or substantially equivalent position, chooses to reinstate the employee in the payroll only by paying him wages and other benefits without however allowing or requiring him to actually report for work. It may be proper to implement a return-to-work order, but the payroll reinstatement must rest on special circumstances that render actual reinstatement impracticable or otherwise not conducive to attaining the purposes of the law. MANILA DIAMOND vs. CA A strained relationship between the striking employees and management is no reason for payroll reinstatement in lieu of actual reinstatement. Petitioner correctly points out that labor disputes naturally involve strained relations between labor and management, and that in most strikes, the relations between the strikers and the non-strikers will similarly be tense. Nevertheless, the government must still perform its function and apply the law, especially if, as in this case, national interest is involved. A voluntary, instead of compulsory, mode of dispute settlement is the general rule. However, Art. 263 (g), which allows the Secretary to assume jurisdiction over a labor dispute involving an industry indispensable to the national interest, provides the exception. The provision contemplates only actual reinstatement. It is not for labor, nor is it for management. It is used by the State to protect itself from an emergency or crisis. UST vs. NLRC The Secretary issued an order to readmit all its faculty members under the same terms and conditions prevailing prior to the present dispute. And rightly so, since the labor controversy which brought about a temporary stoppage of classes affected national interest. The Secretary issued another order directing the NLRC to immediately call the parties and "ensure the implementation of this order." The NLRC was thereby charged with the task of implementing a

22 valid return-to-work order of the Secretary. As the implementing body, its authority did not include the power to amend the order. Hence, the NLRC erred in granting the alternative remedy of payroll reinstatement which, as it turned, only resulted in confusion. The remedy of payroll reinstatement is nowhere to be found in the orders of the Secretary and hence it should not have been imposed by the NLRC. NUWHRAIN vs. CA With respect to the Secretary's order allowing payroll reinstatement instead of actual reinstatement for the individual respondents herein, an amendment to the previous orders issued by her office, the same is usually not allowed. Generally, the Secretary should impose actual reinstatement. However, this one is subject to exceptions. In one case, payroll reinstatement was allowed where the employees previously occupied confidential positions, because their actual reinstatement would be impracticable and would only serve to exacerbate the situation. In another case, payroll reinstatement was allowed as an option in lieu of actual reinstatement for teachers who were to be reinstated in the middle of the first term. In the present case, the Secretary's decision to order payroll reinstatement instead of actual reinstatement is valid. It is obviously impracticable for the Hotel to actually reinstate the employees who shaved their heads or cropped their hair because this was exactly the reason they were prevented from working in the first place. Further, as with most labor disputes which have resulted in strikes, there is mutual antagonism, enmity, and animosity between the union and the management. Payroll reinstatement, most especially in this case, would have been the only avenue where further incidents and damages could be avoided. REINSTATEMENT Reinstatement of union members who did not participate in the commission of illegal acts during the illegal strike may be ordered reinstated. But if the employees committed illegal acts, they may be terminated. Voluntary reinstatement constitutes waiver of the illegality of strike. Strikers who found substantially and regular employment elsewhere during the period of strike cannot be reinstated to their former positions. The moment the employee finds a new job, he can no longer claim his previous employment as the same is effectively terminated by his act of assuming said new job. Reinstatement in ULP Strike If striking employees return, the employer has no choice but to terminate the replacements and readmit the striking employees. INSULAR LIFE EMPLOYEES ASSOCIATION vs. INSULAR LIFE The officials and members of the Unions should have been reinstated. The Unions went on strike because of ULP committed by the respondents. When the strikers reported back for work upon the invitation of the respondents they were discriminatorily dismissed. It is not a defense to reinstatement for the respondents to allege that the positions of these union members have already been filled by replacements. Under such circumstances, if no job sufficiently and satisfactorily comparable to that previously held by the aggrieved employee can be found, the employer must discharge the replacement employee, if necessary, to restore the striking or locked-out worker to his old or comparable position. If the employer's improper conduct was an initial cause of the strike, all the strikers are entitled to reinstatement and the dismissal of replacement employees wherever necessary. NORTON & HARRISON LABOR UNION vs. NORTON & HARRISON The union filed a notice of strike. The parties failed to reach thru the conciliation proceedings. Subsequently, the strikers offered to return to work, but the company refused to accept them; it appears that other persons had been hired to replace them. Anent the company's

argument that reinstatement of said strikers would be unfair to those who had been taken in to replace them, during the strike, when the company direly needed their services, suffice it to consider two other points. The first is that said other workers must be deemed to have accepted their employment as replacements with the knowledge that the same is subject to the consequences of the labor dispute between the strikers and the company on the resolution of which depended the effects of the strike as to right to reinstatement of the strikers. The second point is that said workers had by now been engaged for almost 9 years, so that it is not inequitable for them to be made to yield their positions to those finally ruled to be with right to occupy the same. Reinstatement in Economic Strike If the employer did not hire replacements, the striking employees shall have the right to be reinstated. But if the employer hired replacements, he shall have the prerogative whether to permanently hire them. He is not necessarily required to terminate the replacements, and readmit the striking employees if they elect to resume their employment. CONSOLIDATED LABOR ASSOCIATION vs. MARSMAN Facts: In spite of negotiations held between the Company and the Union, they failed to reach an agreement. The Union, filed a notice of strike. Mediation proved fruitless and the Union declared a strike. In a conference, the Union officials and members accepted a proposal by the company VP that they stop the strike and go back to work, and that when they were already working the Company would discuss with them their demands. The Company admitted back picketing strikers, and also reemployed non-union employees and a majority of the strikers. However, complainants herein were refused admittance and were informed by Company officials that they would not be reinstated unless they ceased to be active Union members and that in any case the Company already had enough men for its business operations. As a result the strike and the picketing were resumed. Held: The strike was an economic one, and the striking employees would have a right to be reinstated if the employer had not hired other permanent workers to replace them. However, during the pendency of an economic strike, an employer may take steps to continue and protect his business by supplying places left vacant by the strikers, and is not bound to discharge those hired for that purpose upon election of the strikers to resume their employment. But in this case, the strike changed its character from the time the Company refused to reinstate complainants because of their union activities after it had offered to admit all the strikers and in fact did readmit the others. It was then converted into a ULP strike, wherein the company has no choice but to discharge the replacements and reinstate the striking employees. The Company alleges that it was economic reasons which prevented it from rehiring complainants. This is disproved, however, by the fact that it readmitted the other strikers and also hired new employees. Conversion Doctrine A strike or lockout may start as an economic strike or lockout but later on, because of the actuations of the parties, the same may be converted to a ULP strike or lockout, or vice versa. The converted strike or lockout shall be subject to the legal requirements appropriate for such ground. PARTICIPATION Lawful strike participation of employee not an abandonment of his employment but merely an exercise of his right to self-organization to protect his rights as an employee; such participation should not constitute sufficient ground for the termination of the employment even if a replacement has already been hired during the lawful strike. Degree of Participation in illegal strikes (1) Member Mere commission must be proven by employer

23 (2) Officer Any act of participation, which shall result to loss of employment CCBPI POSTMIX vs. NLRC A mere finding of illegality of a strike does not necessarily result in the dismissal of strikers from employment. The effects of illegal strikes make a distinction between ordinary workers and union officers who participate therein. A union officer may be terminated from employment for knowingly participating in an illegal strike. The fate of union members is different. Mere participation in an illegal strike is not a sufficient ground for termination of the services of the union members. In this case, the status of the employees as union officers during the illegal strike was not established. Nowhere can it be found that the employees signed documents as officers of the union. It appears that said employees signed the documents only as witnesses to the perfection of the contract between the union, represented by its officers and the company. The employees' signatures were not necessary to bind the union or to perfect the CBA. The principle of estoppel likewise cannot apply in the case because there is no evidence that the employees represented themselves as union officers. TOYOTA vs. NLRC Union officers are liable for unlawful strikes. It is clear that the responsibility of union officials is greater than that of the members. They are tasked with the duty to lead and guide the membership in decision making on union activities in accordance with the law, government rules and regulations, and established labor practices. If the implementation of an illegal strike is recommended, then they would mislead and deceive the membership and the supreme penalty of dismissal is appropriate. If the strike is legal at the beginning and the officials commit illegal acts during the duration of the strike, then they cannot evade personal and individual liability for said acts. On the other hand, a union member is liable when he knowingly participates in an illegal act during a strike. A union member is liable when he knowingly participates in an illegal act during a strike. Whether the strike is legal or illegal, as long as the members commit illegal acts, then they can be terminated. However, when union members merely participate in an illegal strike without committing any illegal act, they cannot be terminated. Rule of vicarious liability Mere membership in a labor union serves as basis of liability for acts of individuals, or for a labor activity, done on behalf of the union. The union member is made liable on the theory that all the members are engaged in a general conspiracy, and the unlawful acts of the particular members are viewed as necessary incidents of the conspiracy. The rule on vicarious liability of a union member was abandoned and it is only when a striking worker knowingly participates in the commission of illegal acts during a strike that he will be penalized with dismissal. G & S TRANSPORT vs. INFANTE Article 264 makes a distinction between union officers and members who participated therein. Thus, knowingly participating in an illegal strike is a valid ground for termination of employment of a union officer. The law, however, treats differently mere union members. Mere participation in an illegal strike is not a sufficient ground for termination of the services of the union members. There must be proof that he committed illegal acts during the strike and the striker who participated in the commission of illegal act must be identified. Proof beyond reasonable doubt is not required. Substantial evidence available under the attendant circumstances, which may justify the imposition of the penalty of dismissal, may suffice. In the case at bar, this Court is not convinced that the affidavits of petitioners witnesses constitute substantial evidence to establish that illegal acts were committed by respondents. Nowhere in their affidavits did these witnesses cite the particular illegal acts committed by each individual respondent during the strike. Strike Duration Pay As a general rule, strikers are not entitled to salaries for the duration that they go on strike even if they are correct

that there is ULP on the part of the employer. Even non-strikers cannot demand strike duration pay. Employees have the right to strike, and hence such activity is lawful. On the part of the employer, he also has the right to resist the strike, which is also legal. In a lawful activity where parties sustain a strike, there is no appreciable relief that can be demanded under the law. Employees lose their salary, while the employer suffers loss of profits. SUMMARY OF PRINCIPLES GOVERNING STRIKES: 1. 2. 3. 4. 5. A strike or lockout is illegal if any of the legal requisites is not complied with. Procedural requirements are mandatory. A strike or lockout is illegal without first having bargained collectively. A strike or lockout is illegal if it is based on non-strikeable issues (e.g., inter-union or intra-union disputes or wage distortion). A strike or lockout is illegal if staged in violation of the No-Strike, No-Lockout clause in the CBA, but only in economic strikes. A strike or lockout is illegal if the issues involved are already subject of compulsory or voluntary arbitration or conciliation or the steps in grievance machinery are not exhausted. A strike or lockout is illegal if it defies an assumption or certification order, or a return-to-work order. A strike or lockout is illegal if staged in violation of a TRO or an injunction or assumption or certification order. A strike or lockout is illegal if the notice of strike or notice of lockout is already converted into a preventive mediation case. A strike or lockout is illegal if conducted for unlawful purpose/s (e.g.: Strike to compel dismissal of employee or to compel the employer to recognize the union or the so-called UnionRecognition Strike). A strike is illegal if unlawful means were employed or prohibited acts or practices were committed (e.g., Use of force, violence, threats, coercion, etc.; Barricades, blockades and obstructions of ingress to [entrance] or egress from [exit] the company premises; Use of slanderous, libelous or obscene language during the strike or lockout). A strike is illegal if such is prohibited by law such as those held by government employees. A strike is illegal if staged by a minority union. A strike is illegal if staged by a union which is not legitimate. A strike is illegal if it violates the company code of conduct. A strike is illegal if staged by dismissed employees. The local union and not the federation is liable to pay damages in case of illegal strike.

24 members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. Improved offer balloting In case of a strike, the Regional Branch of the NCMB shall, at its own initiative or upon the request of any affected party, conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement. Reduced offer balloting In case of a lockout, the Regional Branch of the NCMB shall conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of partnership, vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

6. 7. 8. 9.

10.

JURISDICTION
With Original Jurisdiction: Labor Arbiters; National Labor Relations Commission (NLRC); Secretary of Labor and Employment/his duly authorized representatives; DOLE Regional Directors/duly authorized hearing officers; Grievance Machinery and Voluntary Arbitrators; Bureau of Labor Relations (BLR)/Regional Office; Med-Arbiters; National Conciliation and Mediation Board (NCMB); and Philippine Overseas Employment Administration (POEA). With Appellate Jurisdiction: National Labor Relations Commission (NLRC); Secretary of Labor and Employment; and Director of the Bureau of Labor Relations. With Special Powers: Secretary of Labor and Employment; National Labor Relations Commission (NLRC); National Conciliation and Mediation Board (NCMB); President of the Philippines; and Regional Tripartite Wages and Productivity Board (RTWPB) / National Wages and Productivity Commission (NWPC). Jurisdiction over social security benefits claims: Social Security System (SSS); Government Service Insurance System (GSIS); and Philippine Health Insurance Corporation (PHIC). JURISDICTION OF LABOR ARBITERS (original and exclusive): (1) Unfair labor practice (ULP) cases; (2) Termination disputes (or illegal dismissal cases);

11. 12. 13. 14. 15. 16.

Legal remedies against prohibited practices: (1) Management can file a ULP complaint against the union engaged in prohibited practices before the Labor Arbiter; or the union can also file against management engaging in prohibited practices. That is the case for violation of Article 264 as provided under Art. 217 (a) (5). (2) File criminal case under Art 272 of the Labor Code, which provides that any person violating any of the provisions of Article 264 shall be punished by a fine of not less than 1,000 nor more than P10,000 and/or imprisonment for not less than three months nor more than three years, or both fine and imprisonment, at the discretion of the court. If the acts constitute ULP, you cannot file it immediately because you have to wait until there is a resolution that is final and executory on the civil or administrative aspect of the ULP. You can resort to Art. 218 (e) by filing an injunction suit to restrain and/or enjoin the prohibited acts. Article. 265. Improved offer balloting. - In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union

(3) Cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment, if accompanied with claim for reinstatement; (4) Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; (5) Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; (6) Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding P5,000 regardless of whether accompanied with a claim for reinstatement. General Rule: If below P5,000, jurisdiction is with the Regional Director. Exception: If the following elements are present, the RD must endorse the case to the appropriate Labor Arbiter: (a) that the employer contests the findings of the labor regulations officer and raises issues thereon; (b) that in order to resolve such issues, there is a need to examine evidentiary matters; and (c) that such matters are not verifiable in the normal course of inspection. Money claim under the Labor Arbiter: (1) any money claim, regardless of amount, accompanied with a claim for reinstatement (which involves a termination case); or (2) any money claim, regardless of whether accompanied with a claim for reinstatement, exceeding the amount of P5,000.00 per claimant (which does not necessarily involve termination of employment). Note: Labor Arbiters have jurisdiction over all monetary claims of Overseas Filipino Workers arising from employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages. Legality of strikes have jurisdiction over the issue of legality of strikes and lockouts, except in strikes and lockouts in industries indispensable to the national interest, in which case, either NLRC (in certified cases) or DOLE Secretary (in assumed cases) has jurisdiction. Injunction power granted only to the NLRC Contempt powers (Land Bank vs. Listana, Sr.) granted to Labor Arbiters but the power to cite persons for indirect contempt pursuant to Rule 71 can only be done by initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. Termination dispute (illegal dismissal case) not a grievable issue, hence, Labor Arbiters have jurisdiction. Where the dispute is just in the interpretation, implementation or enforcement stage, it may be referred to the grievance machinery set up in the CBA, or brought to voluntary arbitration. But, where there was already actual termination, with alleged violation of the employees rights, it is already cognizable by the Labor Arbiter. Cases not under the jurisdiction of the Labor Arbiters: (1) Intra-corporate disputes (termination of corporate officers and stockholders) (2) Government corporation with original charters (3) Entities immune from suit, except if said entities perform proprietary activities (4) Local water districts (5) Torts

25 Decision of Labor Arbiters (1) Ordinary appeal to the NLRC within 10 calendar days from receipt by the party of the decision. (2) From the decision of the NLRC, there is no appeal. The only way to elevate the case to the CA is by way of Rule 65. (3) From the ruling of the CA, it may be elevated to the SC by way of ordinary appeal under Rule 45. Jurisdiction over constitutionality of CBA provisions (Halaguena vs. PAL) - Petitioners were employed as femal flight attendants of PAL on different dates. They are members of FASAP, the EBA of the flight attendants of PAL. PAL and FASAP entered into a CBA, which provides for a compulsory retirment, which is 55 for females and 60 for males. The female employees manifested that the provision on compulsory retirement is discriminatory. The SC ruled that RTC has jurisdiction. Not every controversy or money claim by an employee against the employer or vice-versa is within the exclusive jurisdiction of the labor arbiter. Actions between employees and employer where the employeremployee relationship is merely incidental and the cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court. Here, the employer-employee relationship between the parties is merely incidental and the cause of action ultimately arose from different sources of obligation. Thus, where the principal relief sought is to be resolved by the general civil law, the jurisdiction over the dispute belongs to the regular courts of justice and not to the labor arbiter and the NLRC. Jurisdiction over tax deductions from benefits due an employee SANTOS vs. SERVIER PHILIPPINES Petitioner demanded the completion of her retirement benefits, including the amount withheld by respondent for taxation purposes. The issue of deduction for tax purposes is intertwined with the main issue of whether or not petitioners benefits have been fully given her. It is, therefore, a money claim arising from the employer-employee relationship, which clearly falls within the jurisdiction of the Labor Arbiter and the NLRC. IBC vs. AMARILLA IBC withheld the salary differentials due its retired employees to offset the tax due on their retirement benefits. The retirees thus lodged a complaint with the NLRC questioning said withholding. They averred that their retirement benefits were exempt from income tax; and IBC had no authority to withhold their salary differentials. The Labor Arbiter took cognizance of the case, and this Court made a definitive ruling that retirement benefits are exempt from income tax, provided that certain requirements are met. Labor Arbiter or NLRC has no jurisdiction in the following cases: BASAYA vs. MILITANTE The labor dispute involved is not intertwined with the issue in the Replevin Case. The respective issues raised in each forum can be resolved independently of the other. The determination of the question of who has the better right to take possession of the Vessel and whether petitioners can deprive the Charterer, as the legal possessor of the Vessel, of that right to possess is addressed to the competence of Civil Courts. SINGAPORE AIRLINES vs. PAO Jurisdiction over the present controversy must be held to belong to the civil Courts. While seemingly petitioner's claim for damages arises from employer-employee relations, petitioner's claim for damages is grounded on the "wanton failure and refusal" without just cause of private respondent Cruz to report for duty despite repeated notices served upon him of the disapproval of his application for leave of absence without pay. This, coupled with the further averment that Cruz "maliciously and with bad faith" violated the terms and conditions of the conversion training course agreement to the damage of petitioner, removes the present controversy from the coverage of the Labor Code and brings it within

the purview of Civil Law. Furthermore, Petitioner seeks protection under the civil laws and claims no benefits under the labor Code. The primary relief sought is for liquidated damages for breach of a contractual obligation. The other items demanded are not labor benefits demanded by workers generally taken cognizance of in labor disputes, such as payment of wages, overtime compensation or separation pay. The items claimed are the natural consequences flowing from breach of an obligation, intrinsically a civil dispute. SAN MIGUEL vs. NLRC Cases involving claim of employee for cash prize offered under the Innovation Program of a company which, although arising from employer-employee relationship, require the application of general civil law on contracts. Whether or not an enforceable contract had arisen between petitioner and respondent in the circumstances of this case, and if so, whether or not it had been breached, are preeminently legal questions, questions not to be resolved by referring to labor legislation and having nothing to do with wages or other terms and conditions of employment, but rather having recourse to our law on contracts. JURISDICTION OF THE NLRC Original jurisdiction: (1) Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party. (2) Injunction in strikes or lockouts under Article 264. (3) Certified labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest, certified to it by the Secretary of Labor for compulsory arbitration. Exclusive appellate jurisdiction: (1) All cases decided by the Labor Arbiters including contempt cases. (2) Cases decided by the DOLE Regional Directors or his duly authorized Hearing Officers (under Article 129) involving recovery of wages, simple money claims and other benefits not exceeding P5,000 and not accompanied by claim for reinstatement. Note: File 10 days from date of receipt of decision of LA or DOLE RD. Grounds for appeal from LA to NLRC: (1) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter; (2) If the decision, order or award was secured through fraud or coercion, including graft and corruption; (3) If made purely on questions of law; and (4) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. Requisites for perfection of appeal: (1) the appeal should be filed within the reglementary period; (2) the Memorandum of Appeal should be under oath; (3) payment of appeal fee; (4) posting of cash or surety bond, if judgment involves monetary award; and (5) proof of service to the adverse party. Jurisdiction of Labor Arbiters vs. Jurisdiction of NLRC The NLRC has exclusive appellate jurisdiction on all cases decided by the Labor Arbiters. The NLRC does not have original jurisdiction on the cases over which Labor Arbiters have original and exclusive jurisdiction. If a claim does not fall within the exclusive original jurisdiction of the Labor Arbiter, the NLRC cannot have appellate jurisdiction thereover. POWERS OF THE DOLE SECRETARY

26 Visitorial and enforcement power of the DOLE Secretary: (1) Power to inspect employers records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Labor Code and of any labor law, wage order or rules and regulations issued pursuant thereto. (2) Power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. (3) Power to issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (4) Power to order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Cases falling under the DOLE Secretarys appellate power: (1) Orders issued by the duly authorized representative of the Secretary of Labor and Employment under Article 128 (Visitorial and Enforcement Power) may be appealed to the latter. (2) Denial of application for union registration or cancellation of union registration originally rendered by the BLR may be appealed to the Secretary of Labor and Employment. (NOTE: If originally rendered by the Regional Office, appeal should be made to the BLR). (3) Decisions of the Med-Arbiter in certification election cases are appealable to the DOLE Secretary. JURISDICTION OF THE DOLE REGIONAL DIRECTORS Claims for recovery of wages, simple money claims and other benefits, provided that: (1) the claim must arise from employer-employee relationship; (2) the claimant does not seek reinstatement; and (3) the aggregate money claim of each employee does not exceed P5,000. Decision of the DOLE Regional Directors appealable to the NLRC and not to the DOLE Secretary JURISDICTION OF GRIEVANCE MACHINERY IN THE CBA (1) the interpretation or implementation of the CBA; (2) the interpretation or enforcement of company personnel policies. JURISDICTION OF VOLUNTARY ARBITRATORS refer above Decision of Voluntary Arbitrators (1) Ordinary appeal under Rule 43 directly to the CA. (2) From the CA, the case may be elevated to the Supreme Court by way of ordinary appeal under the same Rule 45. JURISDICTION OF THE BLR/MED-ARBITERS (1) Inter-union disputes or representation disputes which refer to cases involving petition for certification election filed by a duly registered labor organization which is seeking to be recognized as the sole and exclusive bargaining agent of the rank-and-file employees in the appropriate bargaining unit of a company, firm or establishment. (2) Intra-union disputes or internal union disputes which refer to disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by-laws of

27 the union, including any violation of the rights and conditions of union membership provided for in the Labor Code. (3) All disputes, grievances or problems arising from or affecting labormanagement relations in all workplaces, except those arising from the interpretation or implementation of the CBA which are subject of grievance procedure and/or voluntary arbitration. Administrative functions: (1) Registration of labor unions; (2) Keeping of registry of labor unions; and (3) Maintenance and custody of CBAs. Decision of the BLR (1) Denial of application for registration of a union (a) If the denial is issued by the Regional Office, it may be appealed to the BLR. (b) If the denial is originally made by the BLR, appeal may be had to the Secretary of Labor and Employment. Cancellation of registration of a union (a) If the cancellation of union registration is ordered by the Regional Office, the same may be appealed to the BLR. (b) If the cancellation is done by the BLR in a petition filed directly therewith, the BLRs decision is appealable to the Secretary of Labor and Employment by ordinary appeal. (2) The decision of the BLR rendered in its original jurisdiction may be appealed to the Secretary of Labor whose decision thereon may only be elevated to the CA by way of certiorari under Rule 65. (3) The decision of the BLR rendered in its appellate jurisdiction may not be appealed to the Secretary of Labor but may be elevated directly to the CA by way of certiorari under Rule 65. Decision of Med-Arbiter in Certification Election Cases appealable to the DOLE Secretary of Labor JURISDICTION OF THE NCMB conciliation, mediation and voluntary arbitration functions of the BLR shall be absorbed by NCMB. Functions: (a) administers the voluntary arbitration program; (b) maintains/updates a list of voluntary arbitrators; (c) compiles arbitration awards and decisions; and (d) provides counseling and preventive mediation assistance particularly in the administration of collective agreements.

END OF 3rd EXAM COVERAGE

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