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5. Unfair Labor Practice (ULP)

of ULP without first filing


administrative case before
labor arbiter. ULP cases are
subject to a compromise in
administrative proceeding.

a. Nature of ULP

At an outset, that not all unfair


labor acts constitute ULP. While
an act or decision of an
employer
may
be
unfair,
certainly not every unfair act or
decision constitute ULP as
defined and enumerated under
the said provision of the Labor
Code (Great Pacific Life Employees

Parties who may be liable to


ULP:

Union vs. Great Pacific Life Insurance


Corp. G.R 126717, February 11, 1999).

Elements:
1. There just be an employeremployee relationship between
the offender and offended
party; and
2. The act complained of must be
expressly
mentioned
and
defined in the Labor Code as
ULP

The act complained of as ULP


must have a proximate and
casual connection with any of
the following 3 rights:
1. Exercise of the right to selforganization;
2. Exercise of the right to
collective bargaining; or
3. Compliance with the CBA.
Exception: The only ULP that
is may or may not be related to
the exercise of the right to selforganization
and
collective
bargaining is the act described
under Art. 248(f) i.e. to dismiss,
discharge,
or
otherwise
prejudice
or
discriminate
against an employee for having
given or being about to give
testimony under the Labor
Code.
ULP is both a criminal and
civil offense As such one
cannot file the criminal aspect

an
the
not
the

Officers and agents of the


company who participated
in, ratified, or authorized
that act of ULP.
Union Officers, members of
the
governing
boards,
representatives or agents
or
members
of
labor
associations
or
organizations who have
actually participated in or
authorized, or ratified the
ULP.
There must be a final
judgment finding that ULP
was committed in the civil
or
administrative
case
before a criminal case can
be pursued, even if at the
end of the decision it is not
binding to be held criminally
liable. (Art. 247) Findings of
the
administrative
case
cannot be used in the
criminal case.

b. ULP by Employers (Art. 248)


1. Interface,
restrain
or
coerce
employees in their right to selforganization;
Test of Interference or Coercion:
Whether the employer has engaged
on conduct which tends to interfere
with the free exercise of employees
rights.

It is the prerogative of the


company to promote, transfer,
or even demote its employees
to other positions when the
interests
of
the
company
reasonably demand it. Unless
there are circumstances which

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directly point to interference by


the
company
with
the
employees
right
to
self
organization, the transfer of an
employee should be considered
as within the bounds allowed by
law (ex. Despite transfer to a
lower position, his original rank
and
salary
remained
undiminished) (Rubberworld Phils.
vs. NLRC G.R. No. 75704, July 19,
1989).

Totality
of
Evidence
Doctrine/Totality
of
Conduct
Rule Effect of Failure to Act

Expressions of opinion by an
employer
which,
though
innocent
in
themselves,
frequently were held to be
culpable
because
of
the
circumstances
under
which
they are uttered; the history of
the
particular
employers
relations or anti-union bias
because of their connection
with an established collateral
plan of coercion or interference.
It is an expression which might
permissibly uttered by one
employer, might, in the mouth
of a more hostile employer, be
deemed
improper
and
consequently actionable as an
unfair labor practice.
When taken individually, It will
not be considered as ULP, but if
taken together and by the
totality conduct of it, the same
constitutes as ULP.

Note: In unfair labor practice


cases, it is the union which has the
burden
of
proof
to
present
substantial evidence to support its
allegations of unfair labor practices
committed by the employer. It is
not enough that the union believed
that the employer committed acts
of unfair labor practice when the
circumstances clearly negate a

prima facie showing to warrant


such belief.
2. Require a person not to join a
union; Discourage Unionism
Yellow
Dog
Contract

An
agreement which exacts from
workers
as
a
condition
of
employment, that they shall not
join
or
belong
to
a
labor
organization,
or
attempt
to
organize one, during their period of
employment or that they shall
withdraw therefrom, in case they
are already members of labor
organization
Exception
to
ULP
of
Interference:
Union
Security
Agreements.
3. Contract out services or functions
being
performed
by
union
members;
Subcontracting is a ULP when it is
motivated by a desire to prevent
the employees from organizing and
selecting a CBA representative
4. Initiate,
dominate,
assist
or
otherwise interfere with formation
or administration of any union;
5. Discriminate
in
terms
and
conditions
of
employment
to
encourage
or
discourage
membership
in
any
labor
organization;
Discrimination is not ULP per se, it
only becomes as such when it
encourage/discourage unionism.
Test of Discrimination: whenever
benefits or privileges given to one
is not given to the other under
similar or identical conditions when
directed
to
encourage
or
discourage union membership.
6. Dismiss, discharge or discriminate
an employee for having given or

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being about to
under this Code;

give

7. Exaction Feather Bedding ULP


committed by a labor organization
which causes or attempt to cause
an employer to pay or deliver or
agree to pay or deliver any money
or other things of valve, in the
nature of an exaction, for services
which are not to be performed,
including the demands for free for
union negotiations.
8. Violate the
collectively:

duly

to

Union vs. Confesor, et


No.114974, June 16, 2004).

testimony

bargain

To be a ULP, violation should be


GROSS in character.

The crucial question whether or


not a party has met his
statutory duty to bargain in
good faith typically depends on
the facts the individual case.
There is no per se test of good
faith or bad faith is an
inference to be drawn from the
facts (HSBC Employees Union vs.
NLRC, 281 SCRA 509).

9. Pay negotiation or attorneys fees


to the union or its officers or agents
as part of the settlement of any
issue in collective bargaining or
any other disputes; or

If an employer interfere in the


selection of the negotiators or
coerces the Union to exclude
from its panel of negotiators a
representative of the Union,
and if it can be inferred that
the employer adopted the said
act to yield adverse effects on
the free exercise to right to
self-organization or on the right
to collective bargaining of the
employees. ULP is committed
(Standard Chartered Bank Employees

G.R.

Note: It is not necessary that there


be
direct
evidence
that
an
employee was in fact intimidated
or coerced by statements of threats
of employer if there is a reasonable
inference that anti-union conduct
of the employer has an adverse
effect on self-organization and
collective bargaining.
c. ULP of Labor Organizations

(Art.

249)

1. Restrain or coerce employees in


the exercise of their right to selforganization Labor organization
shall have right to prescribe its own
rules with respect to the acquisition
or retention of membership.
2. Cause or attempt to cause an
employer
to
discriminate
an
employee includes discrimination
against an employee with respect
to whom membership in such
organization has been denied or to
terminate an employee on any
ground other than the usual terms
and conditions of membership or
continuation of membership is
made available to other members.

10. Flagrant or gross refusal to comply


with the economic terms of CBA

al.,

In determining whether
a discharge is discriminatory,
the
true
reason
for
the
discharge must be established.
While union activity is no bar to
a discharge, the existence of a
lawful cause for discharge is no
defense if the employee was
actually discharged for union
activity (Phil. Metal Foundries vs. CIR,
GR No. 34948-49 May 15, 1979).

3. Violate the duty or refuse to


bargain
collective
with
the
employer;

Blue-sky
bargaining
means
making
exaggerated
or
unreasonable proposals (Arthur

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A. Sloane and Fred Witney, Labor
Relations, 7th Edition 1991, p. 195).

4. Cause an employer to pay or


deliver any money or other things
of valve, in the nature of an
exaction, for services which are not
performed or not to be performed;
Featherbedding when a union
cause
or
attempt
to
cause
employer to pay for or deliver or
agree or deliver any money or
other thins of valve in the nature of
an exaction, for service which are
not performed or are not be
performed, including the demand
for less for union negotiations.
5. Ask for negotiation or attorneys
fees from employers as part of the
settlement
of
any
issue
in
collective bargaining or any other
dispute;

CIVIL CASE

CRIMINAL CASE

For ULP of employer


Officers and agents of
employer.

For ULP Employer


Officers and agents
of
corporations,
associations,
or
partnership who may
have
actually
participated the ULP.

For ULP Of labor


Organization
Officers and agents of
labor
Organizations.

Who has Jurisdiction


Labor Arbiter

Sweetheart Contract a labor


organization asks for or accepts a
negotiation or attorneys fees from
the
employer
in
settling
a
bargaining issue or dispute.

The obligation to pay attorneys


fees belongs to the union and
cannot be shunted to the
individual workers as their
direct responsibility. The law
has made clear that any
agreement to the contrary shall
be null and void ab initio (EMCO
Plywood Corporation, et al. vs. Abelgas,
et al GR No. 148532, April 14, 2004).

PARTIES LIABLE FOR UNFAIR LABOR


PRACTICE
CIVIL CASE
Person Liable

CRIMINAL CASE

For ULP of Labor


Organization Officers,
members
of
governing
boards,
representatives
or
agents, or members
of labor associations
who
may
have
actually participated,
authorized, or ratified
the ULP.

MTC or RTC as the


case
may
be,
provided
that
no
criminal prosecution
for ULP may be
instituted
without
first obtaining a final
judgment
in
the
administration
proceedings
before
the Labor Arbiter that
ULP
has
been
committed.

Quantum of proof needed


Substantial
Evidence

Guilt
beyond
reasonable doubt.

C. RIGHT TO PEACEFUL CONCERTED


ACTIVITIES
The term concerted activities is
defined as the activities of two or more
employees for the purpose of securing
benefits or changes in terms and
conditions of employment, or for
mutual aid or protection with respect
to
their
collective
interest
as
employee.

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1. Forms of Concerted Activities


a. Strike;
b. Lockout; and
c. Picketing
Strike any temporary stoppage
of work by the concerted action of
the employees as a result of an
industrial or labor dispute. (Art.
212[o])

Strike Area the establishment,


warehouse, depots, plants or
offices, including the sites or
premises unused as runaway shops
of the employer struck against, as
well as the immediate vicinity
actually used by picking strikers in
moving to and from before all
points of entrance to and exit said
establishment. (Art. 212[s])
Strike Breaker any person who
obstructs, impedes, or interferes
with by force, violence, coercion,
threats or intimidation any peaceful
picketing affecting wages, hours or
conditions work or in the exercise
of the right to sell organization or
collective bargaining. (Art. 212[r])
Hiring of Replacement
General
Rule:
Hiring
of
replacements for the strikes during
a strike is not a ULP act of the
employer. He is entitled to do it in
his effort to carry on the business.
In case of economics strike, it may
be done in a permanent basis. If
the strikers decide to resume their
work, the employer is not dutybound to dismiss the permanent
replacements
(Consolidated
Labor
Association of the Phil, vs. Marsman, GR L17038, and GR L-17057, July 31, 1964).

Exception: When in case of ULP,


such replacements may not be
permanently
employed.
The
employer
is
duly-bound
to
discharge them when the strikes
are reinstated to their former

positions

(Feati University vs. Bautista,


GR L-21278, December 27, 1966).

Lockout means the temporary


refusal of an employer to furnish
work as a result of an industrial or
labor dispute. (Art. 212[p])
Picketing the marching to and
fro of the strikers at the companys
premises usually accompanied by
the display of placards and other
signs making known the facts
involve in a labor dispute.
Shutdown employer willfully
ceases
operation
following
a
complete lockout.
Boycotts the concerted refusal
to patronize an employers goods
or services and of persuade others
to a like refusal.
2. Who may declare a strike or
lockout?
Workers shall have the right to
engage in concerted activities for
purposes of collective bargaining or
for their mutual benefits and
protection. The right of legitimate
labor organizations to strike and
picket and of employer 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 interunion and intra-union disputes.
a. Strike
(i) Any
certified
or
duly
recognized
bargaining representative.
Grounds:
ULP
and
bargaining deadlock
(ii) If no certified or duly
recognized
bargaining
representative,
any
legitimate
labor
organization
in
the
establishment.
Ground: ULP

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b. Lockout employer

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3. Requisites for a valid strike


Characteristics of a strike activity:
1. There must be an established
relationship
between
the
strikers and the person or
persons against the strike is
called;
2. The relationship must be one of
employer and employee;
3. The existence of a dispute
between the parties and the
utilization by labor of the
weapon of concerted refusal to
work as means of persuading,
or coercing compliance with the
working mens demands;
4. The contention advanced by the
workers that although work
ceases,
the
employment
relation is deemed to continue
albeit in a state of belligerent
suspension;
5. There is stoppage of work,
which stoppage is temporary;
6. The
striking
group
is
a
legitimate labor organization,
and in case of bargaining
deadlock, is the employees sole
bargaining
representative.
(Cesario Alverio Azucena, Jr., The Labor
Code with Comments and Cases, 8 th
Edition, [2013] p. 552)

Procedural
but
Requisites (Art. 263)

4.

5.

6.

7.

informing said office of the


decision to conduct a strike
vote, and the date, place and
time thereof;
A strike vote must be taken
where majority of the member
of the union obtained by secret
ballot in a meeting called for
the purpose, must approve it;
A strike vote report should be
submitted to the NCMB-DOLE at
least seven (7) days before the
intended date of strike;
Except in cases of union
busting, the cooling off period
of 15 days, in case of ULP, and
30 days in case of collective
bargaining deadlock must be
observed;
The 7-day waiting period (strike
ban)
reckoned
after
the
submission of the strike vote
report to the NCMB-DOLE
should also be fully observed in
all cases.

(Consolidated Labor Assn of the


Phils vs. Marsman, 11 SCRA 589).

Mandatory

1. It must be based on a valid and


factual ground the law only
recognizes
two
(2)
valid
grounds:
a. Collective
bargaining
deadlock (Economic Strike)
and/or;
b. Unfair
Labor
Practice
(Political Strike)
2. Notice of Strike or Notice of
Lock out must be filed with the
NCMB-DOLE;
3. A notice must be served to the
NCMB-DOLE at least 24 hours
prior to the taking of strike or
lockout vote by secret balloting,

A legal strike can be


changed into an illegal
strike when a ULP occurs

There
is
non-conversion
between strike or lockout or
vice-versa because it is
different from each other. It
can however, happen at the
same time (Rizal Cement vs.
CIR, 6 SCRA 841).

4. Requisite for valid lockout


a. Good faith bargaining has been
conducted in accordance with
Art. 250 (Art. 264, a)
b. The
following
procedural
requisites are complied: (Art.
263; c, f)

i.

Notice of lockout 0
(Union Busting) or 15
(ULP) or 30 days
cooling-off
period;
with DOLE

days
days
(BD)
filed

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ii.

Lockout Vote approved by


a
majority
of
union
members/board
of
directors
or
partners
through secret ballot in
meeting called for the
purpose
iii. Notice of Result of Lockout
Vote filed with DOLE at
least 7 days before the
intended date of strike
c. Must be based on valid ground;
d. The lockout must be pursued
within the bounds of the law
(Art. 264)

Note:
If
an
injunction
is
subsequently
ordered,
lockout
must cease
5. Requisite for lawful picketing

Under Art. 263(g) of the Labor


Code, when the Secretary of Labor
and Employment, in his opinion,
the labor dispute causes or will
likely cause in a strike or lockout in
an industry indispensable to the
national interest, he is empowered
to do either of the following:
a. Assume jurisdiction over the
labor dispute and decide it
himself; or
b. Certify the same to the NLRC
for compulsory arbitration, in
which case it will be the NLRC
which shall hear and decide it.
Principles
on
the
Assumption/Certification Power of
the DOLE Secretary:
1.

Elements:
1. There must be a labor issue;
2. It must be a concerted activity
of the union;
3. Characterized by the peaceful
marching to and fro at the
employees
premises
with
placards
to
appraise
the
employer and the public of their
demands;
Requisites for a valid picketing
1. The picket should be peacefully
carried out;
2. There should be no act of
violence,
coercion
or
intimidation attendant thereto;
3. The ingress to or egress from
the company premises should
not be obstructed; and
4. Public thoroughfares should not
be impeded.
6. Assumption of jurisdiction by
the Secretary of Labor or
Certification
of
the
Labor
dispute
to
the
NLRC
for
compulsory arbitration

2.

Prior notice and hearing are


not required in the issuance of
assumption or certification
order.
The DOLE Secretary may seek
the
assistance
of
law
enforcement agencies like the
Philippine National Police to
ensure compliance with the
provision thereof as well as
with such orders he may issue
to enforce the same.

Return-to-Work Order - always a


part
of
the
Assumption
or
Certification Order even if not
expressly stated therein. The returnto-work order is compulsory and
immediately executory.

Assumption of jurisdiction over


a labor dispute, always co-exist
with an order for workers to
return to work immediately and
for employers to readmit all
workers under the same terms
and conditions prevailing before
the strike or lockout (Trans-Asia
Shipping Line Inc. Unlicensed Crew
Employees Union of Appeals, et al. GR
No. 145428, July 7, 2004)

The Secretary of Labor may


also exercise such power to
assume jurisdiction in labor

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dispute adversely affecting the


continued operation of such
hospitals, clinics, or medical
institutions;
7. Nature of Assumption Order or
Certification Order
The underlying principle embodied
in Art. 264(g) on the settlement of
labor dispute is that 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 Secretary of
Labor is aimed at arriving at
peaceful and speedy solution to
labor dispute, without jeopardizing
national interest.
A Police Power Measure the
power to issue assumption or
certification
orders
is
an
extraordinary authority granted to
the President and his alter ego, the
DOLE Secretary, the exercise of
which should be strictly limited to
national interest cases. This is done
in promotion of the common good
considering that a prolonged strike
or lockout can be inimical to the
national economy.

In the instant case, stoppage of


work in the firm will be hurtful
not only to both the employer
and the employees, More
particularly, it is the national
economy
that
will
suffer
because
of
the
resultant
reduction in our export earnings
and our dollar reserves, not to
mention possible cancellation of
the contracts of the company
with foreign importers. It was
particularly for the purpose of
avoiding such a development
that the labor dispute was
certified to the NLRC, with the
return-to-work order following
as a matter of course under the

law

(Asian Transmission, Corporation


vs. NLRC, GR L-77567).

8. Effect
of
assumption
orders

or

defiance
of
certification

Non-compliance
with
the
certification order of the Secretary
of Labor and Employment shall be
considered as an illegal act
committed in the course of the
strike
or
lockout,
and
shall
authorize the NLRC to enforce the
same under the pain of immediate
disciplinary
action,
including
dismissal or loss of employment
status or payment by the lockingout
employer
of
backwages,
damages and/or other affirmative
relief, even criminal prosecution
against the liable parties. (Sec. 4,
Rule VIII, 2005 NLRC Revised Rules of
Procedure)

Justifications:
1. A strike that is undertaken after
the issuance by the DOLE
Secretary of an assumption or
certification order becomes a
prohibited activity and thus
illegal. The defiant striking
union officers and members, as
a result, are deemed to have
lost their employment status for
having knowingly participated
in an illegal strike.
2. From the moment the worker
defies a return-to-work order,
he
is
deemed
to
have
abandoned his job.
3. By so defying, the workers have
forfeited their right to be
readmitted to work.

Not a violation of right


against
involuntary
servitude - So imperative
is the order in fact that it is
not
even
considered
violative of the right against
involuntary servitude, as
this Court held in Kaisahan

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ng Mga Manggagawa s
Kahoy
vs.
Gotamco
Sawmills. The worker can of
course give up his work,
thus severing his ties with
the company, if he does not
want to obey the order, but
the order must be obeyed if
he wants to retain his work
even if his inclination is to
strike.
9. Illegal Strike
A strike is illegal if it is declared
and staged:
1. without complying with the
procedural
but
mandatory
requisites;
2. For unlawful purpose such as to
compel the dismissal of an
employee
or
to
force
recognition of the union or for
trivial and puerile purpose to
circumvent
contracts
and
judicial orders;
3. Based on non-strikeable
invalid grounds:

or

a. inter-union or intra-union
disputes;
b. simple violation of CBA in
contrast to gross violation
thereof which is deemed
ULP;
c. violation of labor standards
d. Legislated
wage
orders
(wage distortion)
4. without first having bargained
collectively;
5. In violation of the no strike, no
lockout clause in the CBA;
6. Without submitting the issues
to the grievance machinery or
voluntary arbitration, or failing
to exhaust the steps provided
therein;

7. While
conciliation
mediation proceeding
going at the NCMB;

is

and
on-

8. Based
on
issues
already
brought
to
voluntary
or
compulsory arbitration;
9. During the pendency of a case
involving the same ground/s
cited in the notice of strike;
10. In defiance of an assumption or
certification or return-to-work
order;
11. In violation of a temporary
restraining
order
or
an
injunction order;
12. After the conversion of notice of
strike
into
a
preventive
mediation case;
13. Against the prohibition by law;
14. By an illegitimate union;
15. By a minority union;
16. By dismissed employees;
17. In violation of the company
code of conduct which prohibits
inciting or participating in
riots, disorders, alleged strikes
or
concerted
actions
detrimental
to
companys
interest The penalty for which
is dismissal;
18. As protest rallies in front of
government offices;
19. As welga ng bayan which is in
the nature of a general strike as
well as an extended sympathy
strike.
Examples of Illegal Strikes
1. Sit-Down Strike characterized
by temporary work stoppage of
worker who thereupon seize or
occupy
property
of
the

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employer or refuse to vacate


the premises of the employer.

This kind of strike is illegal


as
it
amounts
the
employees trespass on the
premises of the employer.

2. Wildcat Strike work stoppage


that violates the labor contract
and is not authorized by the
union.
It is not valid because it fails to
comply
with
certain
requirements of the law, to wit:
notice of strike, vote, and report
on strike vote.
3. Sympathetic Strike are work
stoppages of workers of one
company to make common
cause with other strikers of
other
companies,
without
demands or grievances of their
own against the employer.

This is considered as illegal


because there is no labor
dispute
between
the
workers who are joining the
strikers and the latters
employer.

4. Secondary Strikes are work


stoppage of workers of one
company with whom another
union has a labor dispute.

It is not valid because there


is no labor dispute involved
between the strikers and
the other employer.

5. Welga ng Bayan Work


stoppage affecting numerous (if
not all) employers, including a
particular employers who has
no dispute with his employees
regarding their terms and
conditions of employment.
6. Slow Down it is considered as
a strike in installment, which

is illegal. Any strike that does


not pass this test is illegal.
Eg: unjust refusal to render
overtime work is illegal.
Effects
of
an
strike/lockout

illegal

a. Illegal Lockout
Any worker whose employment
has been terminated as a
consequence of an unlawful
lockout shall be entitled to
reinstatement with full back
wages (Art. 264(a), Labor Code).
b. Illegal Strikes
Any
union
officer
who
knowingly participates in an
illegal strike and any worker or
union officer who knowingly
participates in the commission
of illegal acts during a strike
may be declared to have lost
his employment status (Art.
264(a), Labor Code).
Rules on
workers

reinstatement

of

General Rule: Striking employees


are entitled to reinstatement,
regardless of whether or not ULP
has been committed by the
employer.
Exceptions: The following strikers
are not entitled to reinstatement:
a. Union officers who knowingly
participate in an illegal strike;
b. Any strike/union member who
knowingly participates in the
commission of illegal acts
during the strike;
c. Striker who failed to return to
work
without
proper
justification despite the order of
reinstatement are deemed to
have forfeited their right to
reinstatement; or

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d. Strikers who have found a job


during the strike may not be
reinstated.
When the order of reinstatement is
immediately
executory,
the
employer may comply by:
a. Admitting
the
dismissed
employee back to work under
the same terms and conditions
prevailing prior to his dismissal
or separation or a to a
substantially
equivalent
position of the former position
is already filled up; or
b. Reinstating
the
employee
merely in the payroll (Art. 279,
labor Code).
Burden of Economic Loss: In a
strike, the strikers and company
shall bear its own economic loss
(Cromwell Commercial Employees vs. CIR,
12 SCRA 124).

However, in case the ULP is on


the part of the employees, the
economic loss cannot be given
to them, for the reason that the
law should protect the labor. On
the other hand, if the ULP is on
the part of the management,
the management should bear
its own economic loss (SSS vs.
SSS Supervisors Union, 117 SCRA 589).

1. Economic Strike not entitled


to strike duration pay
2. ULP Strike discretionary on
the deciding authority.
General Rule: Strikers are not
entitled to their wages during the
period of a strike, even if the strike
is legal.
Exceptions:
1. Where the strikers voluntarily
and unconditionally offered to
return
to
work,
but
the
employer refused to accept the
offer, they are entitled to
backwages from the date the
offer was made;
2. Where there is return-to-work
order and the employees are
discriminated against, they are
entitled to backwages from the
date of discrimination;
3. When the strikers did not
actually
strike
but
were
practically locked out.
a. Liability
of
officers
members of the unions

Participati
on in Legal
Strikes

Arrest or Detention of Union


Members or Union Organizers
for Union Activities:
General Rule: A police officer
cannot arrest or detain a union
member for union activities without
previous consultations with the
Secretary of Labor.
Exception: On the grounds of
national security, public peace, or
commission of crime.
When strikers are entitled to
strike duration pay:

Participati
on
in
Illegal
Strikes

Union
Officers
Not deemed
to
have
abandoned
his
employmen
t;
not
a
ground for
his
dismissal
even if a
replacemen
t
has
already
been hired
Termination
of all union
officers who
knowingly
participated
in the illegal
strike.

and

Union
Members
Not deemed
to
have
abandoned
his
employmen
t;
not
a
ground for
his
dismissal
even if a
replacemen
t
has
already
been hired
For
an
ordinary
union
member to
suffer
termination,
it must be
shown
by

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Union
Officers
Reason for
the
Distinctio
n:
Union
officers
have
the
duty
to
guide their
members to
respect the
law.
If
instead
of
doing
so,
the officers
urged
the
members to
violate the
law
and
defy
duly
constituted
authorities,
their
dismissal
from
the
service
is
just penalty
or sanction
for
their
unlawful
act.

Union
Members
clear
evidence
that he has
committed
illegal acts
during the
strike.

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Participation in the commission of


illegal acts during a strike:

Legality or Illegality of the strike is


immaterial; as long as the union
officer or member commits an
illegal act during a strike, his
employment
can
be
validly
terminated.
Liability for illegal acts should be
determined on an individual basis
the individual identity of the union
members who participated in the
illegal acts may be proved through
affidavits and photographs, and the
specific illegal acts they committed
should
be
described
with
particularity.

b. Liability of Employers
Liability of Employers in case of Strike
employers may be liable for the
following in favor of the employees
who did not commit any illegal acts
during the conduct of an illegal strike:
1.

Reinstatement
without
backwages;
2.
Separation Pay in lieu of
reinstatement;
c. Waiver of Illegality of Strike
Voluntary Reinstatement - The act
of an employer in inviting the workers
to return to their posts without making
any reference to the pending case
involving the issue of illegality of the
strike or imposing any condition or
alteration of the terms of their
employment was deemed a waiver of
its right to consider the strikers as
wrongdoers. More so in this case when
such invitation was accepted by the
strikers. By said act, the parties may
be said to have both abandoned their
original positions and come to a virtual
compromise to resume unconditionally
their former relations. (Citizens Labor
Union vs. Standard Vacuum Oil Co., G.R. No. L7478, May 6, 1955)

10. Injunctions
Injunction in Strikes and Lockouts
General Rule: Strikes and lockouts
that are validly declared enjoy the
protection of the law and cannot be
enjoined unless illegal acts are
committed or threatened to be
committed in the course thereof.
Exception: Injunction may be issued
not only against the commission of
illegal acts but against the strike itself
because the notice of strike filed by
the union has been converted into a
preventive mediation case. Having so
been converted, a strike can no longer
be staged based on said notice. Upon
such conversion, the legal effect is that
there is no more notice of strike to
speak of. (San Miguel Corporation vs. NLRC)

Injunction may only be issued by


the NLRC in exercise of its
injunctive power. In contrast,
regular
courts
are
absolutely
prohibited to grant any injunctive
relief in cases of strikes or lockouts.

Injunction in Picketing Cases


General Rule: Injunction cannot be
issued against the conduct of picketing
of workers. As guaranteed by the
Constitution, picketing is considered a
part of the Freedom of Speech.
Exceptions: NLRC may enjoin the
picketing
under
the
following
circumstances:
1. Where picketing is carried out
through the use of illegal means;
2. Where picketing involves the use of
violence and other illegal acts;
3. Where picketing affects the rights
of third parties and injunction
becomes necessary to protect such
rights.

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a. Requisites for labor injunctions


Restraining orders and injunctions are
not issue ex parte but only upon
compliance
with
the
following
requisites:
1. Hearing held after due and
personal notice to parties affected;
2. Reception of evidence and the
opportunity of cross examination;
3. Findings of fact by the Commission
that:
a. prohibited or unlawful acts have
been
threatened
and
committed
and
will
be
continued until restrained;
b. substantial or irreparable injury
to complainants property will
follow;
c. that as to each item of relief to
be granted, greater injury will
be inflicted by the denial;
d. complainant has no other
remedy in law; or
e. public officials charged with
duty to protect complainants
property are unable or unwilling
to furnish adequate protection
b. Innocent bystander rule
In situation where the picket affects
not only the employer but also the
business
operations
of
other
establishments owned by third parties,
an injunction may be secured by the
latter from the regular courts to enjoin

the picket under


bystander rule.

the

Innocent

Under this rule, the third party


employers or innocent bystanders
who have no employer-employee
relationship with the picketing strikers,
may apply for injunction with the
regular courts to enjoin the conduct of
the picket.

The right to picket is, however, not


an absolute one. While peaceful
picketing is entitled to protection
as an exercise of free speech, we
believe the courts are not without
power to confine or localize the
sphere of communication or the
demonstration to the parties to the
labor dispute, including those with
related 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 it is to
create an impression that a labor
dispute with which they have no
connection
or
interest
exist
between them and the picketing
union or constitute an invasion of
their rights (Philippine Association of
Free Labor Unions (PAFLU) vs. Cloribel, 27
SCRA 465 [1969]).