Labor Relations 3M 2015 3rd Exam

LABOR RELATIONS TSN
From the lectures of Father Agustin Nazareno

Ateneo de Davao College of Law | Tres Manresa 2015
August 13, 2015 (LJS)
UNFAIR LABOR PRACTICE
Unfair labor practice is a violation to the employees right to
self-organization. Unfair labor practice begins with Book V,
Title VI, Chapter I.
Article 257 [247]. Concept of unfair labor practice and
procedure for prosecution thereof. Unfair labor practices
violate the constitutional right of workers and employees to
self-organization, are inimical to the legitimate interests of
both labor and management, including their right to bargain
collectively and otherwise deal with each other in an
atmosphere of freedom and mutual respect, disrupt industrial
peace and hinder the promotion of healthy and stable labormanagement relations.
Consequently, unfair labor practices are not only violations of
the civil rights of both labor and management but are also
criminal offenses against the State which shall be subject to
prosecution and punishment as herein provided.
Subject to the exercise by the President or by the Secretary of
Labor and Employment of the powers vested in them by
Articles 263 and 264 of this Code, the civil aspects of all cases
involving unfair labor practices, which may include claims for
actual, moral, exemplary and other forms of damages,
attorneys fees and other affirmative relief, shall be under the
jurisdiction of the Labor Arbiters. The Labor Arbiters shall give
utmost priority to the hearing and resolution of all cases
involving unfair labor practices. They shall resolve such cases
within thirty (30) calendar days from the time they are
submitted for decision.
Recovery of civil liability in the administrative proceedings
shall bar recovery under the Civil Code.
No criminal prosecution under this Title may be instituted
without a final judgment finding that an unfair labor practice
was committed, having been first obtained in the preceding
paragraph. During the pendency of such administrative
proceeding, the running of the period of prescription of the
criminal offense herein penalized shall be considered
interrupted: Provided, however, that the final judgment in the
administrative proceedings shall not be binding in the criminal
case nor be considered as evidence of guilt but merely as
proof of compliance of the requirements therein set forth. (As
amended by Batas PambansaBilang 70, May 1, 1980 and later
further amended by Section 19, Republic Act No. 6715, March
21, 1989)
But it actually begins in Art. 256. The article before the
chapter of unfair labor practice.
Article 256 [246]. Non-abridgment of right to selforganization. It shall be unlawful for any person to restrain,
coerce, discriminate against or unduly interfere with
employees and workers in their exercise of the right to selforganization. Such right shall include the right to form, join, or
assist labor organizations for the purpose of collective
bargaining through representatives of their own choosing and
to engage in lawful concerted activities for the same purpose
for their mutual aid and protection, subject to the provisions
of Article 264 of this Code. (As amended by Batas Pambansa
Bilang 70, May 1, 1980)
Concept of unfair labor practice and procedure for prosecution
thereof. Unfair labor practices violate the constitutional right
of workers and employees to self-organization. You know that
is wrong. Its not a constitutional right. It may be
constitutional in a sense that the constitution mentions it, but
it is not in the bill of rights. The bill of rights are the
constitutional rights. All other rights mentioned in the
constitution are policies. They require implementing

legislation. Only the bill of rights does not require
implementing legislation. So, right to self-organization, not
being in the bill of rights, because Sec. 8 Art. 3 is not the right
to self-organization.
Constitution. Art. III. Section 8. The right of the people,
including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
That is not the right to self-organization. Right to selforganization is specific. It is the right to form ,join, or assist
labor organizations for the purpose of collective bargaining
through representatives of their own choosing and to engage
in lawful concerted activities for the same purpose for their
mutual aid and protection. That is the right to selforganization, it is specific. It is not as much embraced in the
freedom of association as it is an imperative of social justice.
It enjoys protection of the state. So much so that there is a
contractual limitation in the joining of the union, just so the
union remains strong.
That is why blue sky bargaining is a decision of the SC that is
no depth, shallow. It is not bad faith bargaining if you ask for
the sky or the heavens. There is no problem in asking, only
for asking. Two decisions of the SC, past and old decisions,
point that out. If you remember the BLTB case. That is not
the same as PLDT though the initials are there. BLTB is
Batangas, Laguna, Tayabas Bus Company.
There was an inspector there who kept making cash
advances. Almost every station he arrives at. And the cashiers
of the bus stations give him cash advance. It was investigated
by the bus company and he was told that he cannot make
cash advances. Despite that, he still continued and he was
investigated again. Finally, he was told by the managers you
can no longer make a cash advance. If you make a cash
advance, you will be dismissed. He signed an undertaking, I
promise not to make a cash advance anymore, if and when I
do break this promise and make a cash advance, I will be
terminated. For 2 months or 3 months, he did not make a
cash advance. But he reverted later, and made a cash
advance. So there was a summary investigation, he was
investigated and the investigating committee said that he
should be terminated, he promised and he did it again, so that
is disobedience, serious disobedience.
After he was terminated, he filed an illegal dismissal suit. At
that time, it was still CIR until it went to the SC. The NLRC
reviewing the CIR, said that he is not guilty of disobedience.
Remember the ruling of when are you guilty of
disobedience that merits termination or dismissal?
(1) If there is a rule, if there is a policy that has been
published made known to you prior to your
commission.
(2) these policies and rules are reasonable.
(3) they pertain to your specific duties.
(4) it must be willful and serious disobedience.
Thats what the law says. Willful disobedience. That qualifier
willful is synonymous to what remedial says conscioumatious
[?]. That is the kind of disobedience that gives the court
ground to hold you in contempt. You are the lawyer, you
disobeyed once, but you were told that if you will disobey
again, what is that? That is already conscioumatious. Ingun
imong ginikanan, ayaw na na buhata, buhaton gihapon nimo

ug usab, gahi kaau kag ulo. Kanang ginaingon sa imong
inahan nga gahi kaau kag ulo, that is what conscoumatius
is. That is willful. If you violated once, you will not yet be in
contempt.
1 | Ad Majorem Dei Gloriam
LABOR RELATIONS TSN

Now, the SC says that the prohibition against making

advances, does not pertain to his duties as bus inspector.
What is more, it was within the power of the employer to
grant or to withhold cash advance. What is wrong with asking
for cash advance? You were told not to make cash advance,
and then you asked, is that wrong, when the employer has
the power to grant it or not. There is no wrong when you are
only asking. When an employee, you ask the employer
something he cannot grant, are you going to be penalized for
it? You were only asking. There is nothing wrong in asking.
That goes back to the history of labor.
Samuel Blumphers, president of the United Textile Workers of
America, was asked by the Senate Congressional Committee
investigation. He was asked, Mr. Blumphers, you are engaged
in CBA, what have you been asking your employer. What were
you telling to your bargaining committee. He said that we are
asking for more, more wages, more benefits. The American
textile workers standard of living is screaming for
improvement. He then was asked if they were able to get
what they were asking. He said that some we got, some we
did not get. So what are you going to do? They are going to
ask again for more. So the chairman of the committee says,
when you get what you have been asking, more than what
you have asked before, what are you going to ask? Again, we
are going to ask for more. Mr. Blumphers, are you not
ashamed that you kept asking for more? Then Mr. Blumphers
said that, not any more ashamed than the employer capitalist
that does not put a limit to his profits. This is historical.
If you are asking, there is no question even if you kept asking.
So, if you ask an employer in bargaining, and then you were
told to shut up because you are asking for more, is that a
legitimate exercise of control to the right to self-organization?
Or is that unfair labor practice? Because unfair labor practice
is a violation of the right of workers and employees to selforganization. They are inimical to the legitimate interests of
both labor and management. Why? Because, it creates
industrial unrests strikes, concerted activities, interruptions
of work.
So the law says unfair labor practice violates the right of
workers and employees to self-organization which are inimical
to the legitimate interests of both labor and management,
including the right to bargain collectively and otherwise deal
with each other with an atmosphere of freedom and mutual
respect, disrupt industrial peace and hinder the promotion of
healthy and stable labor-management relations.
So it is not just a violation of a contractual right. There is a
certain public interest that is affected. That is why an unfair
labor practice, under the concept of the labor, may ripen to a
criminal complaint, and may ripen to a criminal conviction.
Consequently, unfair labor practices are not only violations of
the civil rights of both labor and management, but also
criminal offenses against the state which shall be subject to
prosecution and punishment as herein provided.
So the law says, the civil aspects of all cases involving unfair
labor practices, which may include claims for actual, moral,
exemplary and other forms of damages, attorneys fees and
other affirmative relief, shall be under the jurisdiction of the
Labor Arbiters.Labor Arbiters shall give utmost priority to the
hearing and resolution of all cases involving unfair labor
practices. They shall resolve such cases within thirty (30)
calendar days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings
shall bar recovery under the Civil Code.
Then here is the condition. Very important condition. No
criminal prosecution under this Title [unfair labor practice]
may be instituted without a final judgment finding that an

unfair labor practice was committed, having been first
obtained in the preceding paragraph. So you must get first an
administrative victory of your unfair labor practice complaint,
then you can file a criminal complaint for unfair labor practice.
During the pendency of such administrative proceeding, the
running of the period of prescription of the criminal offense
herein penalized shall be considered interrupted: Provided,
however, that the final judgment in the administrative
proceedings shall not be binding in the criminal case nor be
considered as evidence of guilt but merely as proof of
compliance of the requirements therein set forth. None of the
proceedings administratively where it has been successfully
brought out that unfair labor practice was committed can be
used in the criminal prosecution for unfair labor practice. So
you start abhovo [?], you go through proving unfair labor
practice administratively before the labor arbiter, you bring
final judgment, then you file unfair labor practice criminal
case, you start zero again. Because you cannot use any of the
proceedings. And the quantum of evidence this time is higher.
In administrative case, what is the quantum of evidence?
Substantial evidence. That is the shallowest. Criminal
prosecution? Proof beyond reasonable doubt. Very heavy
burden.
You begin criminal prosecution unfair labor practice by
producing the final judgment. You submit the final judgment.
How do you prove that it is already final? You submit together
with the decision that is final. Then you can begin
prosecution. Because of this provision, there is no room for
unfair labor practice criminal conviction. I still have not seen
an unfair labor practice criminal conviction. If you find one, let
me know. By the time that you finished the administrative
proceeding, even if in your favor, you dont have anymore
witnesses, they are already gone, dead. How then can you
start a criminal prosecution.
This is the concept of unfair labor practice. It is not only a
labor violation, it is not only a contractual violation, it is a
criminal violation. So criminal penalties. There are penalties
provided for in the law. Penalties are Art. 302 [288].
Article 302 [288]. Penalties. Except as otherwise provided in
this Code, or unless the acts complained of hinge on a
question of interpretation or implementation of ambiguous
provisions of an existing collective bargaining agreement, any
violation of the provisions of this Code declared to be unlawful
or penal in nature shall be punished with a fine of not less
than One Thousand Pesos (P1,000.00) nor more than Ten
Thousand Pesos (P10,000.00) or imprisonment of not less
than three months nor more than three years, or both such
fine and imprisonment at the discretion of the court.
In addition to such penalty, any alien found guilty shall be
summarily deported upon completion of service of sentence.
Any provision of law to the contrary notwithstanding, any
criminal offense punished in this Code, shall be under the
concurrent jurisdiction of the Municipal or City Courts and the
Courts of First Instance. (As amended by Section 3, Batas
Pambansa Bilang 70)
That is the penalty for unfair labor practice, if you succeed in
bringing unfair labor practice. But because of this condition
that you must first finish the administrative, which actually
runs counter to the generally accepted procedural practice.
What is the generally accepted practice? If it is criminal, you
start with criminal prosecution. And the civil aspect is deemed
filed automatically with the criminal aspect. So you have to
make an exception, explicit to reserve the civil aspect.
So, this whole thing of making unfair labor practice criminal,
this is actually consuelo de bobo. [Italian rants, to avenge the
LABOR RELATIONS TSN

wrong of workers]. So you have to explain this, sometimes
they ask this in the bar examinations. What is the concept of
unfair labor practice? Violation of the right to selforganization. It is not only a violation of a civil right, or a labor
right, it can also be criminal. Then after that you write down
the buts and the ifs. It is basically a concept that has
remained a concept. It cannot to fruition in reality.
So, how is unfair labor practice committed? There are 3 ways.
Basically it is committed depending on who is committing it:
1.
2.
3.
By the employer (Art. 258)

By the labor organization (Art. 259)
By third parties (Art. 256)
Now, maybe commentators believe that only employers and

only labor organizations can commit ULP. Where did we get
this provision that third parties that are neither employer or
employee organization can commit ULP? It is found before
Title 6, ULP, Art. 256, NON-ABRIDGMENT OF RIGHT TO SELFORGANIZATION.
Article 256 [246]. Non-abridgment of right to selforganization. It shall be unlawful for any person to restrain,
coerce, discriminate against or unduly interfere with
employees and workers in their exercise of the right to selforganization. Such right shall include the right to form, join,
or assist labor organizations for the purpose of collective
bargaining through representatives of their own choosing
and to engage in lawful concerted activities for the same
purpose for their mutual aid and protection, subject to the
provisions of Article 264 of this Code. (As amended by Batas
PambansaBilang 70, May 1, 1980)
ANY PERSON thats Art. 256. We go to Art. 258 Unfair
Labor Practices of the Employer.
Article 258 [248]. Unfair labor practices of employers. It
shall be unlawful for an employer to commit any of the
following unfair labor practice:
(a) To interfere with, restrain or coerce employees in
the exercise of their right to self-organization;
(b) To require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to which
he belongs;
(c) To contract out services or functions being
performed by union members when such will
interfere with, restrain or coerce employees in the
exercise of their rights to self-organization;
(d) To initiate, dominate, assist or otherwise interfere
with the formation or administration of any labor
organization, including the giving of financial or
other support to it or its organizers or supporters;
(e) To discriminate in regard to wages, hours of work
and other terms and conditions of employment in
order to encourage or discourage membership in
any labor organization. Nothing in this Code or in
any other law shall stop the parties from requiring
membership in a recognized collective bargaining
agent as a condition for employment, except
those employees who are already members of
another union at the time of the signing of the
collective bargaining agreement. Employees of an
appropriate bargaining unit who are not members
of the recognized collective bargaining agent may
be assessed a reasonable fee equivalent to the
dues and other fees paid by members of the
recognized collective bargaining agent, if such
non-union members accept the benefits under the
collective bargaining agreement: Provided, that
the individual authorization required under Article
242, paragraph (o) of this Code shall not apply to

the non-members of the recognized collective
bargaining agent;
(f) To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given
or being about to give testimony under this Code;
(g) To violate the duty to bargain collectively as
prescribed by this Code;
(h) To 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
dispute; or
(i) To violate a collective bargaining agreement.
The
provisions
of
the
preceding
paragraph
notwithstanding, only the officers and agents of
corporations, associations or partnerships who have
actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable. (As amended by
Batas Pambansa Bilang 130, August 21, 1981)
Almost the same terms restrain coerce interfere with if it
is the employer. If it is a third person restrain coerce
discriminate against or unduly interfere not just interfere
but UNDULY interfere. How do you interfere unduly?
Article 259 [249]. Unfair labor practices of labor
organizations. It shall be unfair labor practice for a labor
organization, its officers, agents or representatives:
(a) To restrain or coerce employees in the exercise of
their right to self-organization. However, a labor
organization shall have the right to prescribe its
own rules with respect to the acquisition or
retention of membership;
(b) To cause or attempt to cause an employer to
discriminate against an employee, including
discrimination against an employee with respect
to whom membership in such organization has
been denied or to terminate an employee on any
ground other than the usual terms and conditions
under which membership or continuation of
membership is made available to other members;
(c) To violate the duty, or refuse to bargain
collectively with the employer, provided it is the
representative of the employees;
(d) To cause or attempt to cause an employer to pay
or deliver or agree to pay or deliver any money or
other things of value, in the nature of an exaction,
for services which are not performed or not to be
performed, including the demand for fee for union
negotiations;
(e) To ask for or accept negotiation or attorneys fees
from employers as part of the settlement of any
issue in collective bargaining or any other dispute;
or
(f) To violate a collective bargaining agreement.
The
provisions
of
the
preceding
paragraph
notwithstanding, only the officers, members of governing
boards, representatives or agents or members of labor
associations or organizations who have actually participated
in, authorized or ratified unfair labor practices shall be held
criminally liable. (As amended by Batas Pambansa Bilang
130, August 21, 1981)
What words are missing? interfere with its not there.
Discriminate its not there. A labor organization can
discriminate and interfere yet not commit ULP. An employer
cannot interfere. A third party can interfere but they cannot
unduly interfere.
Unsay pasabot anang interfere? Mag labot-labot, mag apil-apil

ka. Unfair labor practice na kanang mag labot-labot ug apilapil in the exercise of the right to self-organization. That is
LABOR RELATIONS TSN

why you begin to see now the reasoning behind that rule
exemplified in the amended 9481 which says that the
certification election is solely the business of the employees.
The employer has nothing to do with the certification election.
His role is by-stander only which according to the law is
reduced to receiving a copy of the petition and to submit the
names that are included in the bargaining unit. Mao ra na
iyang role. He cannot interfere.
Who are exempted are only those who have already chosen
or those who have religious beliefs that they cannot join.
It depends on the actors ha.
Interfere, that is the problem. What are permissible workplace

rules that do not constitute interference? Suppose the
employer issues a rule: No union solicitation at the
workplace during working hours. Workers will campaign,
solicit union membership from the co-workers. An organizer
cannot do that, he cannot enter the workplace. Only
authorized persons can enter dili na violation of the right to
self-organization.
If its the employer interfere restrain coerce

If its a labor organization only restrain and
coerce
Third party restrain coerce discriminate
against unduly interfere
Alright, when does ULP prescribe? ULP must be filed within

one year from accrual of such ULP otherwise they shall be
forever barred according to Art. 304 (290).
Article 304 [290]. Offenses. Offenses penalized under this
Code and the rules and regulations issued pursuant thereto
shall prescribe in three (3) years.
All unfair labor practice arising from Book V shall be filed
with the appropriate agency within one (1) year from
accrual of such unfair labor practice; otherwise, they shall
be forever barred.
If a government employee is *** by his/her superiors on
account of his/her union activities, his/her exercise joining a
union, can he/she file a ULP complaint? According to
PAMANTASAN NG LUNGSOD NG MAYNILA VS. CSC
(241 SCRA 506, 1995) the government employee cannot
file a ULP complaint. He can only file a complaint with the
public sector labor management council created by E.O. 180.
So it is the PSLMC that has jurisdiction over violations of his
right to form a union. What is the conclusion there? THAT
GOVERNMENT EMPLOYEES DO NOT REALLY HAVE THE
RIGHT TO SELF-ORGANIZATION because they cannot file a
ULP complaint by availing their right to self-organization
because they have no right to self-organization. They cannot
enter into collective bargaining.
Alright lets go over one by one with Art. 258:
a.
To interfere with, restrain or coerce employees in

the exercise of their right to self-organization
The issue has been raised, is a union security clause that has
a union shop agreement, is that not coercing employees in
their exercise of the right to self-organization? Those who do
not belong to a union, the moment they become regular, they
are given a certain amount of time to become a member of
the exclusive bargaining agent. If you do not follow that,
You can be investigated by the union and the union can
demand management to expel you by violating the union
security clause. Is that not a violation? According to the SC:
A union security clause is a contractual limitation to the right

to self-organization. It is an accepted limitation. What is the
reason why it is an allowable exception? According to the SC
there is a compelling reason and that is to strengthen in
numbers the bargaining position of the union. As much as
possible, the union must unite all the workers so that it can
speak with one voice. If management can form a corporation
and the voice of the corporation is carried by the board of
directors, therefore, labor should be allowed to come together
and speak with one another. Individual freedoms are
momentarily sacrificed for the sake of one voice. Ikaw wa pa
kay union, apil ka diri aron isa ray tingog.
So the employer does not interfere if he acts on the union

security clause. He is just complying with a contractual
obligation in the CBA. Restraint and Coerce its very easy.
Gi-tuok na nimo, coerce na. Gigapos na nimo, restraint. Klaro
kaayo.
Now the rule says No union solicitation at the workplace

during working hours. The US Supreme Court says a rule like
that is presumptively invalid. It is not reasonable. SC says,
that is overly broad because even during working hours, there
are free moments like rest periods. You cannot be prevented
from talking about the progress of your first child, ipamalita
man jud na nimo sa imong mga kauban. Is that even about
work? Does the employer prohibits you from talking about it?
Naamosa coffee corner nangape, bisag unsar a man inyong
ginasturyahan ana. Sturya mo about sa weather, sa kape,
thats not about work.
There are also places in the workplace that are so-called
neutral places. Comfort room, cafeteria, you dont talk about
work there and yet the employer cannot prevent that. Thats
legitimate because those are so-called neutral places.
So what is the proper version of that rule? It must be
circumscribed. There can be no union solicitation at your
work station during actual working time.

September 3, 2015 (JT)
If you are wondering where I was, you know, I visited two Supreme Courts. The
SC in Canada in Ottawa and the SC in Washington DC. Believe me both SCs you
can visit in puruntong shorts. Here in our SC, you cannot even go past the gate
unless you bring heaps of papers to file. That is really sad. It is out of reach of
ordinary citizens. You go there its free and you do not have to pay anything. All
they ask you is to stay silent in the chambers. If the court is in session you
cannot enter. If not you can go there and feel where the Justices sit.
So we are now in ULP, 258. As to ULP, I think I already told

you that there can be 3 possible actors:
I.
EMPLOYER SIDE
It can be a juridical person or a natural person. Although it is

said that if the employer side is a corporation, the last
paragraph of Article 258 says:
Article 258. xxx The provisions of the preceding paragraph
notwithstanding, only the officers and agents of corporations,
associations or partnerships who have actually participated
in, authorized or ratified unfair labor practices shall be held
criminally liable.
But the corporation can be held administratively liable under
258.
Why only the agents of the corporation? Because you cannot
sentence a corporation to jail. You may able to fine a
corporation as a penalty but there must be a specific provision
of law that must allow the corporation as a corporation to be
held criminally liable.
LABOR RELATIONS TSN

An example of this is the Trust Receipts Law. This law is a
special law incorporated into the RPC. If it is a corporation
that violates the TRL then the law itself says that the
managers or corporate officers, they are liable and they can
be fined or imprisoned. Here it is only criminal liability.
Administratively, you can also be liable that the corporation as
an employer because 258 says ULP of employers, the
corporation cannot be held criminally for ULP.
Remember the concept of ULP as a criminal offense. You
cannot be convicted of ULP criminally without a prior
conviction of ULP administratively. That is a jurisdictional
requirement. But you cannot use any of the pieces of
evidence that you have used in the administrative proceeding
filed before the labor arbiter. You cannot use them. You must
start anew, that is what Art. 257 says.
Is the list provided under 258 exhaustive of the number of
ways that an employer can commit ULP? The SC has said NO.
These are the just the common ULP.
258 (a). To interfere with, restrain or coerce employees in
the exercise of their right to self-organization;
There is as yet no complete list of how an employer can or in
what manner the employer can interfere with, restrain or
coerce employees in the exercise of their right to selforganization. So 258 says that the generic ULP is to interfere
with, restrain or coerce employees what is critical is not so
much the act of interfering, restraining or coercing since that
is behavioral and you can observe it with the eyes.
What is more subtle is interference by speech. When do
you commit ULP by way of speech? An employer cannot lay
down a rule that says no solicitation for union membership
may be done within the workplace during working hours. You
cannot say that because that would be a very broad rule.
Even during working hours there are times when you cannot
be restrained to confining yourself to work related talk. Rest
periods, when you are there within the company premises the
employer cannot dictate you that you should only talk about
work. You can talk about anything under the sun during rest
periods. If the employer says you cannot solicit union
membership during working hours then that would be
interference, overly broad rule.
self-organization;
The landmark case here is Shell Philippines vs. CIR. We
are talking here of security guards of Shell. Father talks about
the merger of Shell Philippines and Shell Petroleum and CGT.
All their security guards used to be direct employees of Shell.
Then the security guards formed a union. With the passage of
the Labor Code, when contracting and subcontracting was
defined, Shell started firing all these people one by one
replacing them with agency security guards. Is that allowed?
First of all, is the position of a security guard open to be
contracted out to manpower security agencies? It is, is it not?
The SC says that this court takes judicial notice of the
widespread practice both in private and public sectors of
contracting out security services, maintenance services etc.
That is an en banc ruling. But that is post factum.
At the time when the LC was still new, Shell sought to
eliminate the union by transferring slowly the security guard
positions to the agency they contracted with. The SC says that
is a direct violation of 248 now 258(c).
But let us say Shell did not fire any security guard but just
waited by sheer attrition, one by one the security guards
reach retirement age, and for every position that is vacated by
retirement or death etc, Shell does not hire a regular security
guard. It engages an agency to supply the security guards. Is
that a violation of 258(c)? The SC has said that that is not a
violation. The unions loss of membership is by attrition. When
the employer replaces them with employees from an agency
that is a correct exercise of managerial prerogatives.
Why? Because the security guard position is not directly
related to the business of the employer, referring to 106 of
the LC. You cannot contract out functions or services directly
related to the business of the employer.
258 (b). To require as a condition of employment that a

person or an employee shall not join a labor organization or
shall withdraw from one to which he belongs;
When, if at all, is an employer not allowed to fill up positions

by contracting out once they are vacated by normal attrition?
An employer cannot do that if included in the CBA is an
appendix that lists all the positions offered by the bargaining
unit. If there is a listing there of all the positions managerial
discretion or prerogative is surrendered. He is no longer free
chop off these positions. That is why no management will
allow a listing of the positions covered by the CBA. If you are
the lawyer of management and you allow that equivalently
you tying a leash around the neck of your client because you
can no longer escape.
Yellow Dog contract. You will be hired provided you dont

join or form a union or that you will resign from one if you
already belong to a union. That is interference. You cannot do
that.
258 (d). To initiate, dominate or assist or otherwise

interfere with the formation of the administration of any
labor organization including the giving of financial or other
support.
What do you think of an employer who will make you write an

essay and he will say write something about makibaka,
ibagsak, ibasura. Those three words, write an essay. Ma-ilhan
Can the employer help the union? Tabang gud na. That is
prohibited by 258 (d). Why can you not assist? Because you
are supposed to be neutral. You cannot go against the union
neither can you act favorably for the union. The only way you
can help the union without committing ULP is if you include in
the CBA the forms of assistance that you have agreed to
extend to the union. If you do not want to be committed to
assist the union because there are budget constraints then
you put a general assistance clause not specific. That is no
longer dominating or assisting the union. That is now fulfilling
the obligations of the CBA. Father talks about an employer
who agreed to donate 2 lechons on every Christmas party of
the union. So you put a general clause with the consent of the
union.
man na nimu kung asa siya gikan kung musulat siya ana
bahin anang tulo. Ibagsak pud ka dili naka dawaton. That is
very difficult to prove that that is interference because they
will say sayop man imung grammar. If very clever writers hire
editors to finalize their works how much if you are a job
applicant? Masayop man jud imung grammar. Ibagsak pud ka
sayop imung grammar. But technically speaking that is
interference because what is the ideal posture of an
employer? The ideal posture is neutral, you are not for nor
against employees organizing a union.
258 (c). To contract out services or functions being
performed by union members when such will interfere with,
restrain, or coerce employees in the exercise of their right to
I gave you the notes on the latest Shoplifters case.

Management threw a party to the members of a union vying
LABOR RELATIONS TSN

for certification election. The management was accused of
ULP. Nganu gitagaan man nila ug party niiining mga members
sa union na apil sa certification election unya ang uban wala
nila gitagai. That means that management is partial to this
union. You cannot do that. A union that is helped by the
management is called a company union. Tawgon gani kag
company union pareho rag tawgon kag kabit. Kabit ka sa
management. That is not a very honorable term.
May a certification election be postponed because of a charge
that the union is a company dominated or assisted union
whether it be an intervenor or the 1st party? The SC has said
in all cases that it should be postponed. If it is another union
that files an ULP case that has to be resolved first. According
to the SC you have to resolve that if it is another union that
questions the character of the union vying for certification
election.
258 (e). To discriminate in regard to wages, hours of work,
and other terms and conditions of employment in order to
encourage or discourage membership in any labor
organization. xxx
This is discriminatory ULP. Union A has filed a petition for CE
and union B intervenes and obviously union B is closer to the
heart of management. Why? All those that have declared that
they are supporting union B they are the ones chosen to do
overtime work and earn more. Those who are supporters or
members of union A cannot get overtime. Unsa man na? Is
that discriminatory? You have to talk about numbers. Upat o
tulo lang gani katawo ang nag-overtime lisod kaayo na pagprove. Example: SMB lets 200 workers of a union do overtime
and no one from the other union, klaro na kaayo na diba?
Discrimination na. That is what the SC says a statistical
impossibility. There you can prove it.
What is the EXCEPTION to this rule? When can an employer
encourage membership in a particular union? If there is what
is called a Union Security Clause. When management
agrees with the EBA that all those in the bargaining unit, once
they become regular employees, should become members of
the EBU. So management must inform those made regular. It
shall give notice to those made regular within 30, 60 or 90
days that it will check off from their salaries union dues
because they are already members of that particular union
because that is required by the union security clause.
That is an exception and not discriminatory ULP. Management
is also obliged to inform the union and give it the list of all
those who have become regular. But, mind you, management
is under no obligation to give to the union a list of
probationary workers. Why? Because probationary workers
are excluded from the BU. And that act is not a mandatory
subject of bargaining because that is outside the unit
bargaining. Remember that one of the mandatory subjects of
bargaining is the terms and conditions of work within the BU
and not outside.
I told you that one of the new exceptions to the rule that the
provisions of a labor contract is construed in favor of labor is
the Union Security Clause. Why is that? Because the USC is a
derogation of the right to self-organization. The SC has said
that the USC is a contractual limitation of the right to selforganization. So the union can actually compel management
to expel an employee on the strength of the USC. It is
therefore a clause interpreted strictly against labor.
Remember that there are three instances where the union
security clause cannot be enforced (refer to previous
coverage). You cannot be forced to join the union that is the
EBU if you are already a member of a union or the one that
lost the certification election. Why is it called exclusive
bargaining unit? It is exclusive only as to bargaining or

arriving at a collective bargaining agreement. Even if there is
already a CBA you are no longer exclusive. Why? Because any
group of employees or an individual can bring a grievance to
the management and argue his case even if the union does
not come in. He is not exclusive in that regard. He is not
exclusive in regard to the union security clause because you
are not compelled to countermand your own decision to be a
member of another union. Father talks about the Iglesia ni
Kristo privilege or exception. Freedom of religion or the
exercise thereof is more weighty than the right to selforganization.
Third exception: 60-day freedom period. You cannot be
compelled to join or not join a union and subsequently
terminated on the strength of the union security clause
because you are doing it on the freedom period. That is not
allowed. PICOP case (again refer to previous coverage).
What is the proper way of enforcing a union security clause?
These are the requirements for the management ha:
1.
There must be controversy or a case where

there is no escaping but to apply the union
security clause.
2.
The union must request in writing that

management should terminate the employee
because he has violated the union security
clause. So it cannot be informal it must be
formalized in writing.
3.
Management must make its own investigation

to find out whether there is substantial
evidence in the proceedings of the union to
merit expulsion from the union. In other words,
the SC is saying that management should review or
should be an appellate body and review the decision
of the union to expel a member. To me that is faulty
reasoning. I think the previous rulings are better and
that is management should find out whether the
union followed its by-laws and in granting the
employee sought to be terminated a day in court.
Management should just review the case
procedurally and not on the merits.
Remember these three requirements for a valid exercise of

the union security clause. Remember also that what is not
operative is the restrictive portion of the USC during the 60day freedom period. Remember that part of the USC is checkoff of union dues. The employee covered by the previous CBA
who has now found a new union and supports its filing of a
petition for CE. He is free to support the union of his choice.
But he cannot oppose that portion of the union security clause
that requires continued check-off of union dues because the
SC has said in the Volkschel case that the basis of union
check-off is representation. For as long the union continues to
represent you and there is a check-off provision you must
continue to contribute. You must continue to pay you union
dues. So you cannot command management to stop the
check-off of union dues.
When can you do it? You can do it when a schism occurs. The
local disaffiliates from the federation and that is allowed even
if the CBA states that it can only be done during the 60-day
freedom period. The federation no longer represents the local
then the stoppage of check-off can be done. Father talks
about Blas Ople. He is the one who started 13th month pay
but he copied it from Greece na nagkagidlay na karon.
258 (f). To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given or about
LABOR RELATIONS TSN

to give testimony under this Code;
What is the difference between this provision and Art. 118:
Article 118. Retaliatory measures. It shall be unlawful for
an employer to refuse to pay or reduce the wages and
benefits, discharge or discriminate against an employee who
has filed any complaint or instituted any proceeding under
this Title or has testified or is about to testify in such
proceeding.
How do you give to everyone? Signing bonus. If it is

5000php wa nay mubasa sa CBA ana. Mukuha lang na sila ug
bonus unya mupirma. Pero kung ang imung tagaan ka yang
president sa union kay kahibalo ka na nagpabuhat siya ug
balay karon, that is ULP. Father tells the again about ADDU
and the gifts the Jesuits received which were given to the
strikers. If you give, you cannot act positively to the union or
negatively because you will be discriminating and that is ULP.
258 (i). To violate a collective bargaining agreement.
Diba pareho ra na? What is the difference? Dako na sila ug

deperensiya.
118
Labor Standards provision so
therefore the controversy is
labor standards. Way CBA
dinha involved.
Kaning 118 ripens

criminal action.
to
258 F
Once there is a CBA that is
involved and there is union
representation it becomes
ULP once you discriminate
against an employee for
filing a complaint against the
employer on the basis of the
CBA or ULP or he testifies or
is about to testify in a ULP
case.
258 does not ripen to a
criminal action.
The prescriptive periods are also different, money claims is 3

years if it is illegal dismissal 4 years. Those are the basic
differences.
258 (g). To violate the duty to bargain collectively as
prescribed by this Code;
When do you violate the duty to bargain? This is when all
these distinctions come in, hard bargaining, surface
bargaining ayaw na e-apil ang blue sky bargaining kay wa
jud nay hinungdan. Those are the unwarranted ULP by way of
violating the duty to bargain.
Remember that the provisions of the CBA may be
renegotiated before the end of the 3rd year. First you can
negotiate for a CBA for a term of 5 years. But then before the
end of the 3rd year you can renegotiate the last 2 years. When
you renegotiate you file proposals for bargaining and
management does answer that is a violation of the duty to
bargain as long as you submit written proposals before the
end of the 3rd year of the CBA.
Suppose it is the 60-day freedom period and the incumbent
goes to management and presents bargaining proposals does
management have the duty to respond to the proposals? No
duty. 60-day freedom period is permissive bargaining. The SC
has said that you bargain during this period at your own risk
for there might be another union who petitions a CE and wins.
The CBA agreed will no longer be in effect because there a
new EBA and EBU. Bargaining in an otherwise non-legally
demandable situation becomes even more an urgent
imperative for management. Ang gusto ana kay gikan naman
sa taas.
258 (h). To ask for or accept negotiations or attorneys fees
from employers as part of the settlement of any issue in
collective bargaining or any other dispute;
Remember you cannot extend as a favor during collective
bargaining or during any dispute to the officers or to any
section or portion of the employees. If you have to give you
give to everyone then it becomes a benefit. But if you only
give to an officer or the attorney of the union that is
prohibited by 258(h).
Take note that there is only one kind of violation constitutes

ULP by way of violating the CBA. What is that? That is flagrant
and/or malicious refusal to comply with an economic provision
of the CBA. That is gross violation of the CBA and that is the
only ULP. It must involve an economic provision. The
economic provision must be clear and unambiguous. Has that
happened? Father tells again the case about the bank under
conservatorship and the conservator did not grant the uniform
allowance.
So is it ULP? The SC said no it is not ULP. Why? The
conservator misinterpreted her powers and she exceeded her
powers. She though she has the authority because the law
grants her the power to countermand even the decisions of
the board to save the bank. The SC said that the conservator
can only do that if the contract was executed under irregular
and suspicious circumstances. But when it is a bona fide
contract the conservator has no power to unilaterally renege
the obligations under the CBA. But that is still not flagrant or
malicious refusal to comply with the economic provisions of
the CBA.
The ULP of labor organizations, very few cases here and the
generic term is restrain or coerce the employees. The union
can be called as having committed ULP only if it coerces or
restrains. Can the union interfere? Yes, it can interfere if it is
its business
Can the union engage in exaggerated speech? For example
the union tells its members to learn driving because they will
ask management for cars. Can the union do that? Yes, the
union can do that. Can the union threaten those who will not
join? It depends on the threat. If the threat is not a crime
puwede mo maka-threaten. Father gives an example when
the union threatens to kill an employee if he does not join the
union. This constitutes a crime already. The RPC defines this
serious threats. Pero kung threaten2x lang and it is not a
crime, so many wives do that to their husbands. That is not
actionable.
So it depends on the kind of threat but the union can engage
in exaggerated speech. The union can make promises even if
later on it does not comply with the promise. A union can
solicit membership. The employer cannot solicit membership.
What if the employees go to management and ask what union
to join is that ULP? It depends if you can prove that
management spoke against a union then that is ULP. In that
case ipasulat kung unsa ila isulti. If management gave an
answer only after being asked then that is not ULP.
Sept 10, 2015 (AS)
Art. 238 [233]. Privileged communication. Information and
statements made at conciliation proceedings shall be treated
as privileged communication and shall not be used as
evidence in the Commission. Conciliators and similar officials
shall not testify in any court or body regarding any matters
taken up at conciliation proceedings conducted by them.
LABOR RELATIONS TSN

This tells you that during conciliation and mediation
proceedings, parties can utter statements which can otherwise
be unfair labor practice. You can utter threats, promises of
reward and later on deny it. So this is the time when you can
threaten because it is considered privileged. If a party alleges
that before the Labor Arbiter, you can object. Even the SC
forgot about Art 238.
Theres a case where the union files a notice of strike on the
ground of unfair labor practice. The notice of strike was filed
before the NCMB as directed by the Implementing Rules of
the Labor Relations Department of the Bureau of Labor
Relations. Now, in the red letter of the law, the notice of strike
should be filed with the DOLE but in the directives of the BLR,
it is to be filed in the NCMB. When it was filed the NCMB said
that it was not a valid notice of strike because the facts
alleged do not constitute unfair labor practice. The NCMB
downgraded the notice of strike to preventive mediation. This
was now alleged in the illegal strike case filed by the
management. The SC took that as a given fact because the
union failed to object that anything that you submit to the
NCMB is confidential precisely to open up all avenues for an
out-of-court settlement. That is the whole purpose why it is
privileged.
This has now become a doctrine that once the NCMB
downgrades the notice from a notice of strike to preventive
mediation then the strike becomes illegal. How will you know
that they have downgraded when they cannot testify in any
proceeding? That is why when the conciliator or mediator
succeeds in his job and gets the parties to agree to an
amicable settlement of the dispute. If you know you labor law,
you call on the DOLE to witness it. If it is just the NCMB who
witnesses the agreement how will you prove it? Dili ma na sila
mutestify under 238. You must insist that the DOLE must
come in so that they close the case. So that Art 233 applies
You must make the compromise agreement comply with Art
233. You cannot rely on Art 238 only. You know some time
back, during Dutertes second term there was a strike against
a supplier of oxygen for hospitals. The NCMB called in the
mayor. He sat there and thought there was already and
agreement. Nagpalitrato na siya gibutang na sa diyaryo.
Pagka ugma nag barricade man sa gates. That is when
Duterte came in riding shotgun and run through the
barricades. The union filed an unfair labor practice case
against Duterte for uttering threats. The legal officer asked
the Dean to assist in the case. Sayon ra kaayo oh! Art 238!
Privileged! If you want to threaten, call a conciliation meeting.
STRIKES AND LOCKOUTS
Of all labor laws, the law on strike is interpreted strictly
against labor in case of doubt. Why? Because according to the
SC, a strike is disturbing the tranquility of the general
citizenry.
Art 219.
(o) "Strike" means any temporary stoppage of work by the
concerted action of employees as a result of an industrial or
labor dispute.
(l) "Labor dispute" includes any controversy or matter
concerning terms and conditions of employment or the
association or representation of persons in negotiating,
fixing, maintaining, changing or arranging the terms and
conditions of employment, regardless of whether the
disputants stand in the proximate relation of employer and
employee.
A labor dispute always involves:

1. Terms and conditions of work
2. Right to self-organization
Elements of Strike
1.
2.
3.
Temporary stoppage of work

By a concerted action of employees
As a result of a labor dispute
Nag-strike ang mga jeepney drivers kay nisaka ang presyo sa

gasolina. Is that a strike? Pasagad ra nag yawyaw ang mga
radio announcer! That does not involve a labor dispute and
yet everybody calls it as strike which tells you that ignorance
is a widely shared commodity.
If the stoppage of work is the result of sabotage, is that
a strike? That word sabotage has its origin in industrial
disputes. It is one of those French words that crept in the
English language. The origin of that word is textile workers in
France who used to run weaving machines. The ordinary
worker is so poor that he only has a pair of wooden shoes
called the sabot. Whenever they had a dispute one of the
ways that they vented their anger at their employer is to
throw their wooden sandals into the machine. Mao nay
gitawag na sabotage!
Under the definition that is not technically a strike. It is
destruction of private property. You do not go with the Labor
Arbiter but to the prosecutor.
Where is the right to strike vested?
Art 277 (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.
The right to strike is vested in the legitimate labor
organization.
The BPI employees organized themselves into a union and
sought recognition from the employer. The employer said
You have to organize the entire BPI. The employees insisted
that they will only organize the branches in Davao City but the
employer refused so they organized a recognition strike.
Unsaon nila pag-strike nga wala man silay labor organization?
They immediately affiliate themselves with NFL. NFL was one
of the pillars of KMU here in Southern Mindanao. NFL filed a
notice of strike but the general workers of BPI did not agree
so the leaders of the local union were forced to withdraw their
affiliation from NFL. They registered themselves as an
independent union but management still did not recognize
them and started firing employees. They filed a new notice of
strike. Somebody told them they need not file a new notice
because the right to strike was in their hands and they already
filed one while they were a local of NFL so you can count the
whole time as cooling off period and they can go to strike
without filing a notice. So they went to strike without filing a
notice of strike. Have they already complied because there
was already a notice filed?
If you claim that the right to strike is vested in the labor
organization they would have to file another notice because
they are now an independent union. But if you claim that it is
LABOR RELATIONS TSN

the employees under the Art 219 definition then they do not
have to file another notice.
This issue was brought before the SC but the SC just did not
look at it. They just decided that the actions of the strikers
were illegal.
Jurisprudence has added a 4th requisite as to the legality of a
strike in the case of Philippine Blooming Mills Employees
v Philippine Blooming Mills. The SC says that a work
stoppage must be intended in order for it to be strike. This
particular ruling was affirmed in the case of Garcia v CSC.
management heard about that, management talked to the

leaders and asked the leaders, If you are going to march, we
are not opposed. But, you leave behind a skeletal workforce.
Why? Because Philippine Blooming Mills was not a beauty
parlor. Philippine Blooming Mills, its products were reinforcing
steel bars, which are cooked in bessemer converters, that go
as high as 2,500 to 3,000 degrees centigrade. In fact, from 0
to 3,000, it takes about 3 to 4 days to bring the converters to
that temperature. So if they leave, the temperature starts
going down, they will have to spend 3 days letting it go down,
and then prepare the converter to bring it back to the desired
temperatures to temper the steel. And that would take a
week.
Sept. 16, 2015 (NDB)

So last time we said that in the red letter of the law, there are
3 ELEMENTS that define a strike, namely:
1.
That it is a concerted action by the employees.
We said that there is a controversy as to where the seat for

the right of the strike is. Does it reside in the individual
workers collectively, or does it reside in the juridical person of
the union? And, there are two seemingly contradictory
provisions of law Article 299 and Article 219. So, that is one
of the difficulties with the first element.
2.
There is a work stoppage.
3.
The work stoppage is a result of a labor or industrial

dispute.
A labor or industrial dispute is defined under Article 219, as

involving the negotiation of terms and conditions of work or
the issue of representation in the negotiating, fixing or
contracting of terms and conditions of work.
Article 219 [212] (l). Labor dispute includes any
controversy or matter concerning terms or conditions of
employment or the association or representation of persons
in negotiating, fixing, maintaining, changing or arranging the
terms and conditions of employment, regardless of whether
the disputants stand in the proximate relation of employer
and employee.
So MGT says, We would be losing a week. So we just ask you

to leave behind enough people to take care of the converter
so that it does not go downeven if it does not produce. So
that when you come back, we can resume production right
away. The leader said, We will talk about it. We will ask the
members of the union. And sure enough, they consulted the
union but the union by unanimous vote said, Either all of us
march or none of us marches.
So, that was what happened. All of them marched. The
bessemer converters were turned off, went back to zero. And
then they had to bring it back.
After they marched, management conducted an investigation.
It brought in the leaders, and then they charged the leaders
for conducting an unlawful strike without complying with the
procedural requisites of notice of strike, cooling off period
strike vote, waiting period, and all the preparatory formal
requisites of strike. After the investigation which was pretty
much pro forma, they were given their walking papers. The
leaders were dismissed.
Now the leaders filed an unfair labor practice dismissal with
the labor arbiter. The labor arbiter found that they were
illegally dismissed. But then it was overturned by the NLRC.
So, the employees finally had to go to the SC. That time there
was still no CA in between NLRC.
So, the issue that was before the SC was, Did the Philippine
Blooming Mills employees union conduct an illegal strike?
Now I said that there is a fourth additional element. The

fourth additional element is:
If so, the leaders lose their employment status. If they did

not, then management was guilty of ULP dismissal.
4.
And the SC said, This issue hinges upon this primary subissue, as to who has the better right management, in that,
in order that it will not lose money, can it demand that a
skeletal force remain while the majority of the union go out
and peaceably assemble to petition the government for their
grievance? Or is it the right to strike?
That the work stoppage must be directly intended.
Now, there are several cases that bring this out: Philippine
Blooming Mills Employees Organization vs. Philippine
Blooming Mills (51 SCRA 189, G.R. No. L-31195, June 5,
1973, En Banc, Makasiar, J)
This case is also a landmark case with respect to the Bill of
Rights.
The Philippine Blooming Mills employees union staged a
strike. And, as the strike was prolonged, in the waning days of
the strike, violence occurred and the employees, members of
the union had reason to believe that those who perpetrated
the violence were members of the Pasay City Police. Of course
they were in civilian clothes. Now to make the story short,
they entered into a compromise agreement with
management. They lifted picket lines and went back to work.
But still, they were dissatisfied. And so the union met and said
that we have one more thing to do, and that is to air our
grievance. Why did the Pasay City police take the side of
management? So they said, We will march to Malacaang to
make our grievances known to the authorities. Now, when
SC: Not the right to strike, but the citizens right peaceably
to assemble and petition the government for redress
of grievance (Article III, Sec. 4, 1987 Constitution). The
right of management is a property right. The right of the
workers is not even a labor right. It is a civil right. It is a
political right, and between these two, the heavier right is
the right peaceably to assemble and petition the government
for redress of grievance.
Sub-question: Is it not reasonable to ask that a skeletal force
remain?
Management did not disallow the workers to demonstrate,
they just asked the workers to leave a few people behind to
take care of the bessemer converter. Is that not reasonable?
LABOR RELATIONS TSN

This is when Justice Makasiar said, quoting Mr. Justice
Douglas of the US SC: The nature of the civil right or Bill
of Right is that there is no exception. The right of one, is
the right of all. If there is one that cannot exercise that right
at all, then all the rights of others are in danger. Everyone
must be able to exercise that right, otherwise there is a
serious threat. Precisely the rights are enshrined in the Bill of
Rights, taken away from majorities and minorities of Congress
so that it is untouchable by the state, because the state is so
powerful. The freedom of one, is the freedom of all.
Justice Douglas, The liberties of one are the liberties of all;
and the liberties of one are not safe unless the liberties of all
are protected.
That was their sole intent. When they march there, they did
not intend to stop work. When they march, it is to peaceably
assemble and petition the government for redress of
grievance. There the government would know, this is our
complaint. In so exercising, because they were demonstrating,
there must be work. But they did not intend to stop the
work, so they were not on strike. That is the finding of
the SC. They did not go on strike. You must intend to work
stoppage by your concerted activity for you to go on
strike. Very important.
GSIS Cases:
GSIS and Winston F. Garcia vs. Kapisanan ng mga Manggagawa

sa GSIS (510 SCRA 622, G.R. No. 170132, December 6, 2006, 2nd
Division, Garcia, J)
GSIS and Winston F. Garcia vs. Villaviza, et al. (625 SCRA 669, G.R.
No. 180291 July 27, 2010, En Banc, Mendoza, J)
Winston F. Garcia vs. Molina and Velasco (627 SCRA 540, G.R. Nos.
157383 & 174137, August 10, 2010, En Banc, Nachura, J)
All involving Winston Garcia. Whats the scoring record of Winston Garcia? Its
like semi-finals of US Womens Open: 3-1. Actually, his record is more dismal
than that. You line up Garcias cases in GSIS, makaingon kag at least 10%.
Nobody will even appoint him as president of a branch bank. He was just a
lawyer running a law office. That was his biggest experience of management,
and he is put in charge of the second to the biggest financial institution of the
PH?! Its just because he got the vote of GMA. And then here you have the
whole country waiting with baited breath, what will Grace Poe say, will she run?
She cannot even run a sari2x store! And she is going to be president? My God,
where is the perspective?!
Nagyawyaw si Fr. sa Binay-UPLB encounter storyNaa pa moy dugay nga
lakwon. Ako wala naman ko 68 naman ko, pre-departure naman ko. [LOL]
Huwat ra ko sa turotot sa mga anghel o di ba kamot anang magdala ug tinidor
unya sungayan. [So, vote/choose wisely ]
First this 2006 case, GSIS vs. Kapisanan Manggagawa sa

GSIS. What happened here? They were protesting against
the tyrannical rule of Winston Garcia. So for three days, one
day after another, or four days, they went on a
demonstration. They left their workplaces, they stood,
marched. And they said, they were peaceably assembling to
petition the government for redress of grievance. Winston
Garcia says, They were on strike! Now, the CSC and the CA
sided with the employees. But then the SC, reversed CSC and
CA.
So this is your authority that government employees DO
NOT have the right to self-organization. It is explicit
here.
The SC says, government employees have the right to selforganization but it does not include the right to strike or
concerted activity. Which means its not the right to selforganization! Self-organization is defined in the Labor Code by
the legislature. Why do you monkey around with that
particular terminology?! It is a technical term! Its used in the
US, it is used in EU. Precisely, the heart of it is the right
to strike. And they say they have the right to SO, but without
the right to strike?! That means they have no right to selforganization!
Now, the provision of law that is at stake in this case is Civil

Service Resolution No. 021316, which provides rules on
prohibited concerted mass actions in the public sector.
From FT: The question that immediately comes to the fore,

therefore, is whether or not the mass action staged by or
participated in by said GSIS employees partook of a strike or
prohibited concerted mass action. If in the affirmative, then
the denounced filing of the administrative charges would be
prima facie tenable, inasmuch as engaging in mass actions
resulting in work stoppage or service disruption constitutes,
in the minimum, the punishable offense of acting prejudicial
to the best interest of the service. If in the negative, then
such filing would indeed smack of arbitrariness and justify
the issuance of a corrective or preventive writ.
And the SC castigates the CA:
It may be, as the appellate court urged that the freedom of

expression and assembly and the right to petition the
government for a redress of grievances stand on a level
higher than economic and other liberties. Any suggestion,
however, about these rights as including the right on the part
of government personnel to strike ought to be, as it has been,
trashed. We have made this abundantly clear in our past
determinations. For instance, in Alliance of Government
Workers v. Minister of Labor and Employment, a case decided
under the aegis of the 1973 Constitution, an en banc Court
declared that it would be unfair to allow employees of
government corporations to resort to concerted activity with
the ever present threat of a strike to wring benefits from
Government. Then came the 1987 Constitution expressly
guaranteeing, for the first time, the right of government
personnel to self-organization to complement the provision
according workers the right to engage in "peaceful concerted
activities, including the right to strike in accordance with law."
It was against the backdrop of the aforesaid provisions of the
1987 Constitution that the Court resolved Bangalisan v. CA. In
it, we held, citing MPSTA v. Laguio, Jr., that employees in the
public service may not engage in strikes or in concerted and
unauthorized stoppage of work; that the right of government
employees to organize is limited to the formation of unions or
associations, without including the right to strike.
Then the SC says:
The phrase "prohibited concerted activity" of the CS
Resolution refers to any collective activity undertaken by
government employees, by themselves or through their
employees' organization, with the intent of effecting work
stoppage or service disruption in order to realize their
demands or force concessions, economic or otherwise; it
includes mass leaves, walkouts, pickets and acts of similar
nature.
Indeed, for four straight days, participating KMG members
and other GSIS employees staged a walk out and waged or
participated in a mass protest or demonstration right at the
very doorstep of the GSIS main office building. To say that
there was no work disruption or that the delivery of services
remained at the usual level of efficiency at the GSIS main
office during those 4 days of massive walkouts and wholesale
absences would be to understate things. And to place the
erring employees beyond the reach of administrative
accountability would be to trivialize the civil service rules, not
to mention the compelling spirit of professionalism exacted of
civil servants by the Code of Conduct and Ethical Standards
for Public Officials and Employees.
So, as articulated earlier, any collective activity undertaken by
government employees with the intent of effecting work
LABOR RELATIONS TSN

stoppage or service disruption in order to realize their
demands or force concessions, economic or otherwise, is a
prohibited mass action.
So once again ha, WITH INTENT. You can no longer deny
intent if you have been for 4 days demonstrating. You cannot
say we are exercising our right peaceably to assemble redress
of grievance.
In the next case, GSIS vs. Villaviza (2010), this was the
case of the union president who *** with Winston Garcia.
Garcia ordered an investigation by the investigating unit
(GSIS-IU), and prohibited him from bringing along his lawyer
who was the former president of the union. And so, the other
officers also in the main office, wants to try to get into the
office of the GSIS-IU. They left their office. They were also
charged later on for conducting strike because they left their
office. How long did that happen?
Issues:
1. Whether an unruly mass gathering of 20 employees,
lasting for more than an hour during office hours,
inside office premises and within a unit tasked to hear an
administrative case, to protest the prohibition against the
appearance of their leader as counsel in the said
administrative case, falls within the purview of the
constitutional guarantee to freedom of expression and
peaceful assembly.
2. Whether the concerted abandonment of employees of
their posts for more than an hour to hold an unruly
protest inside office premises only constitutes the
administrative offense of violation of reasonable office
rules and regulations.
This is where the SC says:
From the FT: On the merits, what needs to be resolved in the

case at bench is the question of whether or not there was a
violation of Section 5 of CSC Resolution No. 02-1316. Stated
differently, whether or not respondents' actions on May 27,
2005 amounted to a "prohibited concerted activity or mass
action."
In this case, CSC found that the acts of respondents in going
to the GSIS-IU office wearing red shirts to witness a public
hearing do not amount to a concerted activity or mass
action proscribed above. CSC even added that their
actuations can be deemed an exercise of their constitutional
right to freedom of expression. The CA found no cogent
reason to deviate therefrom.
do that, they were summarily dismissed. And their lawyer

Dean Froilan M. Bacungan said, they should not be dismissed
because they were just peaceably assembling to petition the
government for redress of grievance.
SC says, You are engaged in concerted activity with the
intent to cause work stoppage. You are violating the law.
There must be at the same time an intent. The length of time
is crucial in the determination of whether there is such an
intent. If it is just one day, half day
In the private sector, Kiok Loy was like that. Kiok Loy vs.
NLRC they demonstrated. They said negotiate with us! They
were charged with illegal strike. SC says, There was no
strike, they did not intend to cause work stoppage. Their
intention was to compel management to negotiate. They only
left their jobs, their positions for about a day! There is no
intent to cause the work stoppage.
So, that is the fourth element. INTENT.
And I am emphasizing this because I do not read it in the
commentaries. It is not there, and yet it is crucial. That is the
same distinction in your criminal law. When you talk about
penalties in the RPC, in felonies, intent matters. When you
talk about special laws, intent does not matter. Because it is
mala prohibita.
But, even if intent does matter in special law, you must
intend to commit the act. There is a difference between a
felonious intent and the intent to make the act. In the very
least, you must intend to commit the act. Where is that
shown? Special prohibition, Omnibus Election Code. Even if
you have the license to carry, you cannot carry your firearms
within 100 meter radius from the polling place. Diba? Suppose
there is this policeman who goes home, carry his weapon and
his home is just next to the school where the polling place is,
just divided by a fence. So he is within 100-m radius and he is
carrying his weapon. He is arrested for violation of the
provision prohibiting the carrying of firearms within 100-m.
Special law, intent does not matter man! But at least you
intend to commit the act. He did not intend to commit the act.
He intended to go home! You see the difference? Fine
distinction of law! And that is what you should be careful!
Sometimes, your innocence or guilt depends on that! And you
must see it! I do not see it in the commentaries that is why I
bring this out.
Read these two cases. So that you will appreciate this
particular topic. [Ang 3rd case pads? Where?!]
They were acts not constitutive of:

An intent to effect work stoppage or service
disruption and
For the purpose of realizing their demands of force
concession.
Let us distinguish picketing from a strike.
What is the difference here? Difference is first case, 4 days!

This case, less than a day.
PICKETING is marching back and forth at entrances of

employers premises carrying placards to apprise the public of
the issues involved in the labor dispute that gave rise to the
strike.
You can still say, if you have work stoppage for a day or less
than a day that there is no intent to work stoppage. If you
have four (4) days, you can no longer say you did not intend
to cause work stoppage.
It is the same ruling laid down by the Court in the case of
Association of Concerned Teachers vs. Secretary of
Education. They camped outside the Congress, demanding
that the law increasing the salary which was already signed by
the President be implemented. And they sat there for 3
months! After the final ultimatum was issued by the Secretary
of Education for them to return to their post, and they did not
Picketing is the most visible outward index of a strike. Not all

strikes though, have pickets. Some strikes do not have
pickets.
Is there a requirement before you can picket? Any procedural

requirement, just like a strike? NO. Because a picket is
derived from freedom of expression, NOT the right to
self-organization.
In fact, the freedom of expression cannot be subject to any
kind of censorship. You learn from the Bill of Rights that the
Supreme Court has said that the only exception to the
presumption of regularity of a law, the presumption of validity
of the law is any law that infringes on the freedom of
LABOR RELATIONS TSN

expression. Because if a law infringes on the freedom of
expression, according to the Court: This law comes to the
Court with heavy burden of proving its validity. Freedom of
expression is so essential to a free society that any threat to
its free exercise is frowned upon by the law. So you cannot
have any form of censorship for picketing. Because its
justification, its source is freedom of expression.
STRIKE, the source of strike is labor rights. Right of selforganization! A strike, is not a constitutional right. It is
recognized in the Constitution, but it is not a constitutional
right in the same level as freedom of expression. So, it is
individually owned by the person.
Picketing is personal, while the right to strike is
collective. That is why it is called a species of concerted
activity. You cannot go on strike alone. If you can stop work
acting alone, thats sabotage. That is not strike. If all of you
stop working, that is a strike! That is a concerted activity. So it
is not covered by prerequisites.
A strike in very rare instances may be enjoined. We will see
later on how a strike is enjoined. But, freedom of
expression, picketing cannot be enjoined.
There are grounds by which freedom of expression can be
enjoined. But the two traditional speeches or expressions that
are unprotected and therefore may be enjoined are what?
Libel and pornography. Mao ra nang duha! The two forms of
expression that may be curtailed.
So, freedom of speech is a privileged right. The right to strike
is a protected right, protection to labor laws.
Now, naa kay kahimuot sa imong agalon. Magsul-ob kag
sandwich card. Butang nimo sandwich card nimo atubangan,
Inot akong employer! 20 years wa koy promotion! Lakaw
lakaw ka sa atubangan dinha sa gate sa inyong pabrika.
Mahimo na? Dili ba ka ipadakop sa pulis ana?

Basta maglakaw lakaw ka lang, you cannot be arrested. That
is the key to a picket. It must be a moving picket! Why? You
are usurping a sidewalk. A sidewalk is available to all, but
owned by no one. It is supposed to be res nullius. Everyone
must have access to it. Kanang maglakaw lakaw. So ikaw
mura ra sad kag ordinaryo nga tao nga maglakaw lakaw
dinha. Sige gyud kag balik2x! Dili ka muhunong. Magdala ka
sa placard. Wala may nakasabot ana sa Pilipinas. Pag abot
nimo sa may pabrika atbang strike ka diha, butangan man
dayon ug placard dinha, i-tali dinha. Madugay magluto na na
sila dinha, manghayhay na sa ilang mga nilabhan. Tan awa
nang mga *** all of them are violating the use of right.
Preventing the ingress or egress, the entrance!
But that should be how a strike should be conducted. Pickets
should be a moving picket. And you cannot picket on the
property of the employer. Employer can throw you out! You
can picket because it is a sidewalk. It does not belong to the
employer. It belongs to no one. You are just one of the public
that has access to it. So, the picket must be a moving picket.
If you do not move, what happens? You are violating a city or
town or province ordinance.
Tan awa nang mga mamaligya dinha sa Recto, mga pagkaon,

durian. They are violating the city ordinance. Pero suwayi ug
dakop. Ikaw pa ma-bad shot dinha muingon na silag,
Nanginabuhi man gani mig ginagmay dinhi imoha pa gyung
daginoton. Insultuhon na nila ang pulis. Ang pulis dili na na
mudakop. Unsa may imohang gusto, mangawat ko? E di ang
pulis, dili nalang! Its a jungle out there in the sidewalk! So
what happens? Mao nang ang city employees, pagkahapon,
munganha nalang tagaan nalang sila ug stub, bayad kag P10,

P12 depende sa gidak-on sa imong pwesto. Kolektahan
nalang na sila. City ordinance na!
Can you have a strike without a picket, or can you have a
picket without a strike? YES.
You can have a picket without a strike. Lets say sa
hospital, three shifts mo. Pagkahuman sa first shift, sila may
magpicket dinha, paghuman sad nilag otso oras, pauli sila sa
ila. Katong mga nahuman sa shift mao na say mag martsa2x.
O, naundang ba ang trabaho?! Wa! Unya inig tan-aw nato
sa Naa may ga-picket. Ah, ga strike diay. Kana ang
conclusion. Kakita gani ka ug ga-picket, ga-picket na! Tingali,
nag strike. Pero wala ka masiguro ug nagstrike na ba na.
Because the essence of a strike is work stoppage.
You can have a strike without a picket. Now, if you
engage in a wildcat strike, kanang sit-down strike. [Note:
magkaiba ng definitions ang wildcat and sit-down sa google]
Take over mo. Papahawaon ninyo ang security guard,
papahawaon ninyo tanang mga employer supervisor. Gi take
over ninyo ang whole factory. That is called a sit-down strike.
Thats a violent strike! You oust the employer from the
premises. And you take over the plant. Aha pa may tao nga
nahibilin nimo nga magpicket? Wala nay magpicket ana sa
gawas. Kay tua man mo sa sulod tanan. But there is work
stoppage. You will have to apprise the public in another way
about the issues involved in the strike. You will have to do it
in another way.
Now, kini ra bang picket, it uses very hard language. Theres
already a decided case by the Supreme Court, PCI Bank vs.
PNB Employees because the PNB employees, when they
went on strike, they had placards which read: Wala mi
promotion because PNB has absorbed the bad debts of PCI
Bank! Butang nila na sa mga placards. Ang nasuko ang PCI
Bank. Unsa, wala man mi bad debts nga gi absorb sa PNB!
Gusto nila ikiha ang union for libeling PCI Bank. Did that libel
suit prosper?
SC says nobody really takes seriously all those things written
in placards of a strike. Alang alang man nag, Nalipay mi
maong ga strike mi! Dili man gyud ingon ana ang naa sa
imong placard. Puros man na dautan ang naa dinha sa
placards. Mao ganing gapa init mo, gipang sip-on na mo,
gipang hilantan mo dinha kay perteng sukua ninyo. Thats
what the SC said.
So in a sense, it is a privileged communication.
When you carry a placard, you do not expect genteel
language according to the SC.
What reminds me is this case during the height of the Watergate crisis.
Remember it was Nixons people who ordered the ransacking of the Watergate
office to get the records of those who were against him, and then there was a
cover up. But then there were the tapes, and Nixon refused to surrender the
tapes because in the tapes were recorded that he was involved in the cover up
of the Watergate breakage. Now, there was a creative poster maker. Who put
out a poster, and the poster was a Girl Scout carrying brownies, and the Girl
Scout was obviously pregnant. And underneath the poster was the caption,
Nixons the one! That Nixon was so evil, he has to take advantage and has
sought the Girl Scout to make her pregnant. Mao na ang caption didto. Now,
the one who got angry was the Girl Scouts of America. They sued the poster
maker for libeling the Girl Scouts of America.
Pareha lang. Ang PCI Bank, maoy naigo sa ilang poster nga
ang kalaban employer man. Third party ang nasuko. It went
all the way to the SC. And its the same reasoning! The US
Supreme Court says, The Girl Scouts of America is so
wholesome it cannot be maligned by a simple poster like that.
Its so outlandish that it is really meant to be satirical! It is
really directed at Nixon. And not at the Girl Scouts of America.
LABOR RELATIONS TSN

You have a labor dispute. First you begin with positions. There
is a demand, there is a counter-demand so you are on the
level of arguments. And then from the arguments, there
results in economic coercionone withdraws labor, the other
withdraws work. So economic weapons. After economic
weapons, there is hot words. Magsininggitay namo! After the
hot words, then it is very easy for the situation to develop into
violence.
SC says the legislature must have envisioned this. That it can
flow into violence. That it is tending towards violence! The
concerted actions exercised by the employees has a
very strong tendency to develop into violence. And yet,
the legislature grants this right.
Because, it is the only way by which the employees
standing together in a concerted action begins to
stand on equal footing with management that has the
monopoly of resources. So, the legislature in its wisdom
risks the occurrence of violence by granting to labor the right
to strike.
Requisites for lawful and valid strike
Alright! Let us go through the requisites for a lawful valid
strike. Two basic divisions:
I.
II.
Substantial requisites,
Procedural requisites.
In both divisions, there is a negative requisite and there is a

positive requisite.
I.
SUBSTANTIAL REQUISITES
a.
NEGATIVE:
1.
The strike should not be based on intra-union

or inter-union dispute;
Article 277 (b) [263]. x x x However, no labor union may

strike and no employer may declare a lockout on grounds
involving inter-union and intra-union disputes.
There is a fight between two unions, cannot be a ground for a
strike. Otherwise, it is an illegal strike.
Example: There is a certification election between Union A

and Union B. Union B wins, Union A says, To prove to the
employer that we have substantial numbers, let us go on
strike and prove to the employer that we can still paralyze
these workers. Away nila, inter-union fight. That cannot be a
ground for a legal strike. That is right then and there, an
illegal strike because the ground is an inter-union dispute.
2.
The ground for the strike must not be based on

violation of the CBA;
Only one rare violation of the CBA can constitute as a ground

for a strike. That is when the violation constitutes an Unfair
Labor Practice.
And when is that? When the violation is gross in character.
When is the violation of the CBA gross in character? If it is
flagrant and/or malicious refusal to comply with an economic
provision of the CBA.
Article 273 [261]. xxx Accordingly, violations of a CBA,
except those which are gross in character, shall no longer be
treated as ULP and shall be resolved as grievances under the
CBA. For purposes of this article, gross violations of CBA

shall mean flagrant and/or malicious refusal to comply with
the economic provisions of such agreement. xxx
So only an economic provision that is violated in a flagrant
and/or malicious refusal can constitute a valid ground for a
strike. Any other violation, is not a ground for a valid strike.
3.
The ground must not be a trivial ground.
A strike is a remedy of last resort. You cannot make it the first

resort.
An example of that is Reliance Surety vs. NLRC (193 SCRA
365, G.R. Nos. 86917-18 January 25, 1991). Simple
workplace. Reliance Surety is an insurance company. Mga tao
usa ra ka floor. Everybody is pushing papers, forms,
complaints, claims. Management decides, People have been
in this position for so long, we have to reshuffle because most
of the time nahurot ra sa tabi kay amigo man mong tanan. So
they reshuffled the sitting position. And the president of the
union was placed at the back near the comfort room. The
president of the union issued a notice of strike. Nag strike sila
kay ang president sa union natupad sa kasilyas. Is that a valid
ground? Its a trivial ground.
Wage Distortion as NOT a Ground for Strike. Now, wage
distortion according to the Buklod vs. NLRC case, Ilaw at
Buklod ng mga Manggagawa (IBM) sa San Miguel
Corporation. SC says, wage distortion cannot be a ground
for a strike. Why? Because the law itself, Wage
Rationalization Act provides for a ground to remedy wage
distortion. So you cannot make it a ground for strike.
Again: Economic strike is when the union demands from the
employer something which the employer is not legally obliged
to grant. If the union simply demands a wage increase where
the wages of the bargaining unit are already higher than the
minimum wage, that is an economic strike because
management is under no legal obligation to grant that.
Now, if there is a new wage order and the BU is covered by it
because it is below the minimum wage, and the union
demands it from management, that is not an economic strike!
What is that? ULP na!
So suppose the union demands something that is beyond the
managements ability or capacity to grant, does that make the
ground for the strike trivial? That is decided in San Carlos
Milling Company vs. CIR, (1 SCRA 740, G.R. Nos. L-15453
and L-15723 March 17, 1961, En Banc, Reyes, JBL) reiterating
the old case, Caltex vs. Philippine Labor Organization
(98 Phil. 294, L-4758, May 30, 1953). These are the same
cases that negate the ruling of the SC in NUBE vs. NLRC,
the so-called blue sky bargaining.
The fact that management cannot afford your demands does
not make a strike illegal because according to JBL Reyes, once
upon a time, all these labor standards now enjoyed by the
working force, they were once impossible demands. So if you
make possibility a measure of reasonableness, then there is
no hope for the working class to improve its life.
b.
POSITIVE: (What it must contain)
1.
It must be based on either CBA deadlock or

unfair labor practice;
Those are the only 2 possible grounds for a strike:

a) Deadlock, economic demand or
b) ULP.
LABOR RELATIONS TSN

CB deadlock, defined in San Miguel Corporation vs. NLRC
(G.R. No. 99266, March 2, 1999) as the situation between
the labor and the management of the company where there is
failure in the collective bargaining negotiations resulting in a
stalemate.
There is no more progress in the bargaining. If you are
bargaining with a CBA, you are not moving anymore, you are
stuck because you cannot agree or there is a demand,
managements counter offer is lower than the demand. There
is no meeting of minds, there is a deadlock.
Is it necessary that the deadlock be submitted to voluntary
arbitration or compulsory arbitration or be the subject of a
notice of strike? Apparently NO MORE.
Wa na, tawgon dayon nimo ang pulis. Kinsa tong naay oil,
mao tong mga nagtuwad ug nagyabo sa sakyanan kay pag
abre didto wala may scabs. Violence na gyud mo! Kinsa tong
magka grasa dakpon to ninyo. Butangan dayon ug CCTV.
Remember: The union has a right! That they should not be
taken over in their positions, especially if the ground for the
strike is ULP. If it is an economic strike, they probably have
less right to be substituted.
Scabs and Strikebreakers. There is a difference.
Scabs
takes the place of a striker
in his work
not prohibited
Under the Industrial Peace Act, R.A. No. 875, it used to

be that there was no deadlock if there was no submission or
invocation of compulsory arbitration. Or, notice of strike. Now,
that is no longer required. Why? Because the Department of
Labor does not want to put a premium on strikes. It does not
want to encourage the occurrence of strike. The moment you
declare that there is a deadlock, then you just have to
describe what the deadlock is in this Notice of Strike you give.
You attach as an appendix the original demands, the tentative
agreements and the deadlock itselfdescribe the deadlock.
Then you already have a ground for strike.
2.
It must be based on a serious ground;
One that affects most, if not all, in the BU or the labor union.
That is one measure of the seriousness of ground. Not just a
trivial ground.
3.
Both the purpose and the means must be

lawful.
There may be lawful purpose but unlawful means because its

carried out by violence; the strike is illegal. If the purpose is
unlawful, and the means that are used to carry it out are
lawful, it is still an unlawful strike. The two (2) must be lawful!
Now, when is violence critical in making strike unlawful? The
SC has said, NOT ALL VIOLENCE RENDERS A STRIKE
UNLAWFUL. SC distinguishes between two (2) kinds of
violence:
1. Sporadic violence
2. Pervasive violence
CJ Fred Ruiz Castro is the ponente of the Decisions on
violence. Castro says, Violence that pervades a strike, means
that it is begun by violence. It is sustained by violence, in
other words violence pervades the strike from beginning to
end that colors the entire legal nature of a strike. But if a
strike is just marked by one incidence of violence how is
liability to be determined? Liability is individual. Only those
who participate in the act of violence are the ones liable.
Ill give you an example: Strike ta! Ang employer, they will
procure an enclosed van. Pasudlon nila. The employer has the
right to ingress and egress. Its their property. Dili na
mahimong pugngan. The workers have also an interest. That
they do not want scabs to take over their positions and
continue working for the company. They have a right to their
positions. Unya sirado man. Unya gusto man nila
inspectionon. Dili man abrihan sa management. Edi, bangga!
Uyog uyogon nila nang truck balihon na nila, tumbahon na
nila. Pero, naa may mga buang2x nga mag *** Ara ha,
pasulod ka ug van. Wala gud nay scabs dinha imo lang gyung
i-enclose. Unya mangita kag paon ba nga mukagat sila.
Butangan na nimog oil/grasa. Edi pag kupot ana sa mga
workers (strikers) kay ilaha nang tumbahon, di magka oil sila.
Strikebreakers
breaks the picket lines by
stealth, violence deception,
whatever
prohibited
But normally, you cannot be a scab unless you break a picket

line. Kay mupuli man ka didto, unya gi alihan man na! Unsa
na, mugawas tong taga Siquijor unya mulupad aron maka
abot ka didto sa sulod?! Lain na na!

So, that is the rule. A scab is not prohibited, but a
strikebreaker is prohibited. That is why, if an employer struck
against, moves his equipment somewhere else, so as to
continue his operation.
What is the effect? Is he prohibited from doing that, from
moving? NO! He can move. But, that new location where he is
carrying now his business becomes a strike zone. They can
picket there! Kung gibalhin nimo didto sa inyong balay, sa
subdivision ang imong mga equipment kay gusto ka
magpadayon sa imong production, strike-an man ka dinha,
tua naman sad didto mga striker magsige ug singgit2x! Dili na
makatulog ang imong anak didto, unya mangahadlok na sila.

Muingon ka ug hununga na, muadto ka sa court mangayo
kag injunction aron pahunungon na sila. Dili ka tagaan ug
injunction kay legal man na.
There is an old case. Negros Sugar Central case. Strike.
First day of strike, naabot sila. Each of the strikers, every
single one of them was armed, not with revolvers but tubo,
kadena, magdala silag bunal. Naa may rival union. Sulod
nang military gi-arrest silang tanan. Now, is that valid even
when there was yet no eruption of violence? According to SC,
evidence showed that massive eruption of violence was
imminent. There was already animosity of the union. There
was already an incident between these two unions. Unya
karon nag dala na gyud silag kadena, tubo, bunal kada usa
nila.
I dont know whether you still recall it, some 15 years ago ba
to. Franklin Baker, Sta. Cruz. Big strike there! Trouble with
the strikers is it was with the participation of people
underground. First day of strike, patay ang union president,
pusil! Unsa may tubag sa union? Didto gihaya sa picket line.
Nikuha pa silag pari nga nagmisa didto. 3 to 4 days later,
personnel manager sa Franklin Baker mao nasad namatay.
Pusil nasad! Kinsa may nagpusil ato? Mga armado, gikan sa

bukid na. Balos balos ba! Thats when they called the military
to disperse. Violence naman!
Sept. 17, 2015 (NDB)
So we are halfway through the requirements of a valid and
legal strike. We are done with the substantial requisites,
negative, and positive. And they can all be gleaned from
Article 277, of course with reference to Article 219
(Definitions) and Article 278. These are the basic provisions
on the right to strike.
So we said that the negative substantial requisites are:
LABOR RELATIONS TSN

1.
That the strike must not be based on intra or interunion dispute;
2.
It must not be based on a violation of the CBA,

except those violation which is gross in character
that is flagrant and/or malicious refusal to comply with
the economic provision of the CBA; and
3.
That the ground for a strike should not be a trivial

ground. Because a strike, is a remedy of last resort.
Gisakitan ka sa tiyan, pa-opera diay ka dayon? Wala pa
gani ka mutumar ug antacid ba diha. The remedy is
drastic! That is why the grounds should not be trivial.
ana sa inyong insurance? [Fr. next sem pa.] Nag una2x

diay ko.
There is a difference between proximate cause and
immediate cause. The immediate cause of the injury or
loss is the water. But the proximate cause is the fire nextdoor! That is why you can recover.
1.
The ground must be either CB deadlock or ULP.
2.
The ground must be serious.
Its the same thing. Where an injury occurs to a third

person during a strike, within the strike zone, that is the
entrance of the employer premises. That is where the
picketing will occur. Theres an injury. Who answers for
that injury? Ingon kag nganong nag apil2x man ka dinha,
nga ga-strike man mi? Why will you prevent anyone from
being there in the sidewalk when the sidewalk is open to
all even if it is not owned by anyone?! Its a public place.
The public has a right to use the sidewalk. You cannot
fault him for being negligent. Why, mupalayo diay siya
kay nagstrike? Unsa man diay nang strike, gubot?! Strike
is something legal. Its an exercise of the right to selforganization. So, there should be no danger in a strike.
3.
Both the purpose and the means must be lawful.
Kana ha bantayi na, ayaw pag duol2x anang mga

nagstrike kay mga buang2x na. Mao man nay common
And then we go to the positive substantial requisites. What

are they?
If it is carried out by means of violence, then it must be

pervasive violence to change that character of a strike
into an illegal strike. Remember: The transformation of a
strike is only one way. A strike can only become an illegal
from being legal. A strike cannot be summated fromII.
beginning to be illegal to legal. Once it is illegal, it will
remain illegal. The transformation is only one way.
Now, if a strike is carried out by pervasive violence,
Justice Fred Ruiz Castro says, then the strike becomes
illegal. But if the strike violence is sporadic... Theres a
distinction between pervasive and sporadic.
pedestrian wisdom. But legally, since it is a legal act,

there is no danger in strike. And you have the right to be
there! Disabuse yourselves of homespun wisdom which is
sometimes stupidity.
PROCEDURAL REQUISITES
a.
NEGATIVE:
1.
There must be no violation of the duty to

bargain.
A strike declared by a union to enforce certain
economic demands without first having given
management reasonable time and opportunity to act
has been held premature and illegal. There was
as yet no time to do some bargaining. Remember a
strike is a remedy of last resort. You must give a
chance to bargain.
If it is sporadic, the responsibility of the consequence

of violence, whether it be physical injuries to others or
destruction of property, the responsibility is
individual.
Problem: There is a strike and a third party is injured.
Walay labot ba! Namaligyag mani, naa ra dinha sa

bangketa, sidewalk vendor. Unya sa tantong kagubot
nabunalan ang iyang ulo, naligsan pa siya, patay! Who is
If in the CBA there is a No-strike clause, and it

provides that for the duration of a CBA the employer
shall not lockout, nor the union engage in a strike to
settle difference that arises from the CBA. If theres a
difference between controversies arising from a CBA
and going on strike immediately, that is a violation of
the no-strike clause. Remember a no-strike clause
covers only so-called economic strikes. It does
not cover ULP strikes. Because if it does, then it is
a license to management to ride roughshod over the
union, with all manner of ULP because he is shielded
from the no-strike clause! So that is not considered
as covered in the no-strike clause; only economic
strikes.
liable?
Answer: Now, if the violence was pervasive, then it is the
union that becomes liable. But, if the violence that
occurred is merely sporadic, then liability is individual. It
must be determined who partook of the violence. Who
became the proximate cause of the loss of life? Proximate
Cause. That is when your Torts and Damages comes in.
What is proximate cause? That cause which in the natural
and logical sequence, produces the injury and without
which no injury or loss would have occurred.
2.
Natural sequence. Insured ang imong balay, astang
sulod. Nabas ang tanan nimong law books. Ang SCRA
nga dugay na nimong gitigum, 25 anyos, na-water. Claim
ka sa insurance. Unsaon man na pagclaim nimo ug fire
insurance nga tubig man na? Ingon ka, proximate
cause. Insured ka sa fire. Ang nasunog kay ang imo
mang silingan. Ang fire department nitabok didto sa inyo,
sigeg pasirit sa imohang silingan. And the danger is
immediate, impending. To put out the fire they had to
use water. But, as usual you cannot control the water.
Can you recover from your fire insurance? YES you can!
Because the proximate cause is fire. Wa pa mo tudlu-i
There should be no compulsory or voluntary

arbitration of the dispute.
The dispute, which is the ground for the strike. Let
us say, management summarily dismisses the union
president and the vice president, thus crippling the
union.
The law says in cases of dismissals of union leaders,
where the existence of the union is in danger, the

union can go straight ahead and strike. Now, the SC
has interpreted this to mean that the obligation to
observe the waiting period is dispensed with
LABOR RELATIONS TSN

but not the notice of strike nor the strike vote.
There has to be a notice of strike and a strike vote.
If you file it with the NCMB, under Article 233, the

NCMB cannot testify as to whether or not it is
adequate in substance or in form. They are
conciliatory
and
mediator-oriented!
Privileged
communication!
Now, if the union leaders (president, vice president)

are summarily dismissed by the employer, can the
union file a notice of strike? Certainly! You allege that
the ground for the strike is ULP, dismissing the union
president and vice president to cripple the union and
thus interfering and restraining the union activity. So
its ULP.
So, that is what the Ministry of Labor forgot!

Ministry ha.
Is a notice of strike for ULP or a notice of strike for
bargaining deadlock the same? It is not identical.
But what if the president and vice president file a

case for ULP with the labor arbiter? If they do so,
then there is already compulsory arbitration.
You cannot file a notice of strike! You cannot engage
in a strike anymore. Because you are already leaving
the controversy to the judgment of a proper forum
namely the labor arbiter. You cannot engage in 2
fora. Compulsory arbitration and the level of
economic pressure via a strike. You cannot!
There are similar data that you supply namely:
The employer name;
The address of the employer;
The BU;
The exclusive bargaining representative;
Membership of the union, etc.

But then when you come to:
Now, let us say, a union does not file a notice of

strike for the dismissal of the president and the vice
president of the union because they themselves, the
victims have filed an illegal dismissal case. While the
complaint is pending, there is another union leader
that is dismissed. He does not file.
Can you file a notice of strike now? YES! Because
each dismissal is a wrong committed. Each is an
independent ground for staging a strike; another
ground of ULP. Therefore, you can file now a notice
of strike using the ground, namely the third dismissal
of the union leader as a ground for the strike.
3.
There must be no violation of the no-strike

clause.
Mangita ka ug wala diha!
1.
You must file a strike notice/notice of strike.
2.
Strike based on ULP. What you have to do, is

you have to recite the acts or omissions which
you allege constitute the ULP. That is the gist of
the notice of strike.
The observance of the so-called cooling-off

period.
Where do you file the strike notice? In the primer1

for strikes and lockouts issued by the DOLE by way
of a department order, DOLE says it should be filed
with the NCMB.
If it is a bargaining deadlock strike, the coolingoff period is 30 days.
That is WRONG! Why? Because, that is contrary to

what the red letter of the law says. Red letter of the
law says, The notice of strike must be filed
with the Ministry. With the Department of Labor.
What do you do during the cooling off period? You

stay cooooool! You attend the conciliation and
mediation proceedings called by the NCMB to give a
last chance to amicable settlements. Religiously, you
attend. Try to discover ways to settle the dispute.
Why with the DOLE? Because, the Department of

Labor can determine whether or not a strike notice is
adequate in form and substance.
If your strike notice is not adequate in form or
substance, then what is the effect? It is as if there is
no notice of strike that is filed. So therefore your
strike is illegal for failure to comply with a positive
procedural remedy.
Now the latest case of notice of strike is Magdalam

Multipurpose & Livelihood Cooperative vs.
Kilusang Manggagawa ng LGS (659 SCRA 768,
G.R. Nos. 191138-39, October 19, 2011). I suggest
you read that case on strike notice.
So those are the three (3) negative procedural requisites.
POSITIVE:
Strike based on deadlock. You must attach to

the notice of strike the bargaining proposals of
the union and then you must recite in the notice
what has been so far agreed upon, and what are
still not agreed upon. And then you must zero in
on the particular proposal that constitutes the
deadlock. That would make the notice of strike
for bargaining deadlock sufficient in form and
substance.
IMPORTANT: Remember the notice of strike is

under oath, and it is verified. And then you serve
a copy to the employer.
In other words, if there is a no-strike clause, it

must not be a strike based on bargaining deadlock. It
must be a strike based on ULP.
b.
If it is ULP strike, the cooling off period is 15 days.
3.
A strike vote that must be by secret ballot.

Before you take the strike vote, you must give notice
to the ministry 24 hours before you take a strike
vote.
What is the purpose of that? To give the Department
of Labor the option whether or not they will observe
a strike vote proceeding, or they will conduct the
strike vote proceeding.
http://ncmb.ph/Publications/Manual%20on%20Strike/MOS.HTM
LABOR RELATIONS TSN

Its up to them, but you have to give them 24hours.
If you do not give at least a 24-hour notice,
then the strike vote is not complied with.
So you must attend and refrain from doing anything

that will aggravate the situation further. You must
maintain the status quo. You do not do anything that
will aggravate the state of the dispute.
It must be by secret ballot.

Where are the results of the strike vote to be
submitted? Again back to the Ministry, not the NCMB!
CASE: Samahan ng mga Manggagawa sa
Moldex vs. NLRC (324 SCRA 242, G.R. No. 119467,
February 1, 2000)
The results of the strike vote were not submitted to
the NCMB, therefore the strike was illegal. How was
it proven that it was not submitted to the NCMB?
That is a big question! Did the conciliators and
mediators of the NCMB testify that they did not
receive any results of the strike vote? Its just given
here! You must give the Department of Labor 24
hours to decide and then you submit the results to
them. Then you wait for seven (7) days, its so-called
the waiting period as distinguished from the coolingoff period.
4.
Now we go to the list of prohibited practices [Murag na mixup ni Fr. ang terms diri]. What are the so-called prohibited
practices? That is Article 279. Prohibited Practices. Article 277,
Strikes, Picketing and Lockouts, Article 278, Prohibited
Practices. Prohibited activities.
1.
No labor organization or employer shall declare a strike or

lockout without first having bargained collectively/ (Art.
278 (a))
Thats the first! You must bargain before strike. You
do not strike and then bargain. What else?
2.
/or without first having filed the notice required in the

preceding Article (Art. 278 (a)).
3.
/or without the necessary strike or lockout vote/ (Art. 278
(a))
Observance of the waiting period of 7 days.

What is the purpose of this? It is no longer to find
out an amicable way of settling the dispute. The
seven (7) days is for the union members. They
are given a chance to complain to the BLR if there
was any irregularity in the taking of the strike
vote. If it was railroaded, if people were compelled
to vote for it. If the report concerning it, that is if the
strike vote is false, the majority of the members can
take appropriate remedy before it is too late.
If the purpose of the required strike notice and
strike-vote report are to be achieved, the periods
prescribed for their attainment must, as aforesaid, be
deemed mandatory.
That is what NFSW vs. Ovejera says, 114 SCRA
354, G.R. No. L-59743, May 31 1982, En Banc.
Is the waiting period in addition to the cooling-off
period? The primer says, it is always in addition.
Even if you take the strike vote during the cooling-off
period.
BUT NFSW vs. Ovejera, the SC says, the waiting
period will only be extended from the cooling-off
period if the 7 days are not covered by the
cooling-off period.
In other words you have 15 days for ULP strike vote.
If you took the strike vote, during the 7th day of the
cooling-off period, the entire 7 days is covered by the
cooling off period. You do not have to observe
another extra 7 days waiting period. The last 7
days of the cooling-off period is at the same
time waiting period. That is what NFSW case says.
But Department of Labor, in its primer, check it, it
says it is always in addition to the cooling off period.
th
So, we have seen waiting period, thats the 4

requirement.
5.
PROHIBITED PRACTICES
Compliance with the duty to conciliate and

mediate under the auspices of the NCMB.
Remember, this is interpreted strictly against the union.

This is not interpreted liberally. Substantial compliance, okay
na ba na?! Dili na mahimo!
Problem: 15-day cooling off period. 14 days ang naobserve. Nasayop silag kwenta. 14 days pa diay. Exclude the
first day, include the last day man. Nakalimot sila. Strike sila.
They miss it by one day.
Can they be pardoned for falling short of 1 day? 14 day gud
unya 15. Syaro dili maluoy ang court ana, mga trabahante
gud ni.
SC says, illegal strike! Usa ra ka adlaw diperensiya.
Because, these periods are MANDATORY. They are
JURISDICTIONAL according to the SC.
4.
Without the necessary strike or lockout vote first having

been obtained and reported to the Ministry// (Art. 278
(a))
5.
No strike or lockout shall be declared after assumption of

jurisdiction by the President or the Minister or after
certification or submission of the dispute to compulsory or
voluntary arbitration or during the pendency of cases
involving the same grounds for the strike or lockout. (Art.
278 (a))
So, if the Secretary assumes jurisdiction of the labor
dispute we will later on see in Article 277 (g), all strikes,
whether they are in progress or they are yet to be
launched, they are enjoined.
Prohibited to go on strike after the assumption of
jurisdiction, or the certification of the dispute to the NLRC
by the Secretary of Labor.
What is the difference between an illegal strike and a socalled strike that constitutes a prohibited activity? Illegal
strike, the result is all the union officers lose their
employment status. The ordinary rank-and-file employees
who participated in the strike, they are not dismissed!
The benefit of the doubt is granted to them that they
were just misled. But if it is a prohibited activity, there
is already an assumption of jurisdiction Order issued by
the Secretary, the union still goes on strike, then all those
LABOR RELATIONS TSN

who participated in the strike, whether you are an officer,
or rank-and-file, you may be dismissed from service. You
may be terminated.
That is the difference of prohibited activity and an illegal
strike.
Illegal strike is, you do not comply with any of the

procedural or substantial requisites provided by law.
Therefore it is illegal. Because its illegal, the officers lose
their employment status. The rank-and-file, they remain.
Prohibited activity, strike pud pero dili man illegal.
They complied with all the requirements. Procedural and
substantial. But then the Secretary issues an assumption
of jurisdiction Order, or he certifies the dispute to the
NLRC. Once he does that, all strikes are enjoined. If you
still go ahead with the strike, then no matter who you
are, whether you are rank-and-file or you are an officer,
you lose your employment status.
Mas bug-at ang prohibited activity. Dili gani ka mu-return
to work, gamay ra kaayo mga gipa saylo ana. Kanang
mga on leave nga wala sila kahibalo.
DOLE: Aha man nang inyo?

EE: Nipauli ko human pagkang layu-a man. Wa man ko
kahibaw na naa naman diay assumption of jurisdiction.
Naa na diay ultimatum nga mubalik sa trabaho. One week
na, wala siya nitungha.
Unya pagtungha,
DOLE: O nganong nitungha man ka?

EE: Nitungha ko kay mubalik na ko kay nag leave man
ko.
Approved man iyahang leave. Excusable.
But if you did not return to work. Ngano man? Because
we filed a motion for reconsideration with the Secretary,
asking the Secretary to reconsider the assumption of
jurisdiction. We are waiting for his ruling! YOU CANNOT,
in the guise of waiting for his ruling. You have to obey
what is said in Article 277(g), return to work
immediately.
And the employer must also accept immediately.
Problem: Dugay naman ni gitangtang sa employer ning
pamasad-an na mga tao, ila pa ba diay gihapon ning ireinstate?
SC says, YES! That is the ground for the strike the
dismissal of the telephone operators. But the issues were
separately brought before the voluntary arbitrator and the
VA ruled that the dismissal is valid. And they did not
appeal the decision of the VA.
Will they still be reinstated, after Secretary assumed
jurisdiction? SC says, YES they have to be reinstated.
Why? The whole purpose of the assumption of jurisdiction
is to return the workplace to the status quo ante bellum!
Before the controversy. Because it is so vital to the
economic interest of the Philippines. That is the reason
why it is granted.
Article 277 (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 returnto-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. x x x
Because the industry is thought of as indispensable to the
national interest. That is the ground for the Secretary to
assume jurisdiction.
Remember the SC gives a wide latitude to the Secretary.
Theres only one instance where the SC corrected the
Secretary for issuing an assumption of jurisdiction order.
What case is that? Thats the case of Philippine Match
vs. Secretary of Labor. Why? Because the researcher
of the Secretary made a mistake. When did he make a
mistake? In issuing the Order, there are the Whereas
Clauses. In one of the Whereas clauses there is an
admission that the dispute is not arising from an industry
indispensable to the national interest! Oh, di naloko na!
Why are you issuing the order?
This industry indispensable to the national interest is
loosely interpreted. But the Court does not look into it,
why? Because the law grants the particular
executive to exercise the discretion. So in deference.
According to the SC in the PLDT case, the Court will not
question unless there is a grave abuse of
discretion (GAOD). When you say in your Order, that
this does not involve an industry indispensable to the
national interest and you are still issuing the Order, thats
grave abuse! Therefore the SC has no choice but to
correct you.
But if you say, Ateneo de Davao, there is this dispute.
You really believe that Ateneo de Davao is indispensable
to the national interest? This happened in 1986 ha! There
was a labor dispute here. And the Secretary of Labor
assumed jurisdiction. Is Ateneo de Davao, indispensable
to the national interest? You can very well think of the
Philippines going on without Ateneo de Davao. But, it was
not shut down by the SC!
Coca-cola case, there has been a strike here. Secretary
assumed jurisdiction. One, because according to the SC,
it behooves upon this Court to assume a becoming
modesty and refrain from questioning the discretion of
the Secretary when he assumes jurisdiction over a labor
dispute because such discretion is granted by law.
The law says, it is your discretion whether or not you
should assume jurisdiction. When you exercise it, you
have the prerogative of the law. And only when you
abuse your discretion.
Unsa may klaro nga abuse gyud of discretion? My

example used to be that there was a Merco restaurant
here in Aldevinco before. Wala naman na dinha,
nahimong coop naman na dinha. Lima ra ka trabahante
na dinha. Cashier, naay waiter, naay cook. Unionized na
sila! President, VP, puros na sila mga officers. Now, if by
LABOR RELATIONS TSN

chance magstrike na sila, unya mu-assume lang gihapog
jurisdiction ang Secretary of Labor because it is a dispute
arising from an industry indispensable to the national
interest. Ah, sobra nasad na! Coffee shop, magstrike?!
Kinsa mang nanginom ug kape dinha, si Grace Poe?
Sobra na sad kaayo. That would be GAOD.
But, you can always launder the law. I remember when
the Secretary took over the dispute, issued an Order
assuming jurisdiction in Ateneo, he had a long series of
whereas clauses. Whereas the youth are important to
the etc Whereas Ateneo de Davao is educating a
significant portion of the youth in the city Whereas the
city is a prominent urban center in Southern Mindanao.
Indispensable to the national interest.
I dont know I have not read the assumption of
jurisdiction of the Coca-cola. Whereas Coca-cola is
already part of the daily lives. Whereas some people will
die not drinking a Coca-cola Naa bayay mga tao na dili
na mahimong walay Coca-cola. Diba, noh? So,
indispensable to the national interest.
ingress and egress of the ER, breaking picket lines against the
ER, using the police officers, military to escort xxx. You can
sue the ER and you can include the military.
But suppose you want a restraining order, you want to stop
the party from committing prohibited practices. You want an
order from committing prohibited practices while let us say
you are contesting the legality of the strike. You file it to the
LA can you also ask from the Labor Arbiter a restraining order.
NO, you cannot ask for a restraining order because the Labor
Arbiter does not have power to grant restraining order against
any prohibited practices.
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 P5,000.00
regardless of whether accompanied with a claim for
reinstatement.
B.
The Commission shall have exclusive appellate

jurisdiction over all cases decided by Labor Arbiters.
C.
Cases arising from the interpretation or implementation

of collective bargaining agreements and those arising
from the interpretation or enforcement of company
personnel policies shall be disposed of by the Labor
Arbiter by referring the same to the grievance machinery
and voluntary arbitration as may be provided in said
agreements. (As amended by Section 9, Republic Act
No. 6715, March 21, 1989)
September 23, 2015 (AL)

We are in Art 278, the so-called Prohibited Practices during
strike.
When you sue somebody for commission of prohibited
activities under Art 264 who has jurisdiction?
It is the labor arbiter as can be found in art 224 (previously
Art 217) Jurisdiction of Labor Arbiters and the Commission.
What forum do you resort to?

Art 224. Jurisdiction of the Labor Arbiters and the
Commission.
A.
Except as otherwise provided under this Code, the Labor

Arbiters shall have original and exclusive jurisdiction to
hear and decide, within 30 calendar days after the
submission of the case by the parties for decision
without extension, even in the absence of stenographic
notes, the following cases involving all workers, whether
agricultural or non-agricultural:
1.
2.
3.
Unfair labor practice cases;

Termination disputes;
If accompanied with a claim for reinstatement,
those cases that workers may file involving wages,
rates of pay, hours of work and other terms and
conditions of employment;
Art 224 (a) is the jurisdiction of Labor Arbiter. The

prerogative, there are 6 classes of cases over which the Labor
Arbiter has original and exclusive jurisdiction.
Provided it is accompanied by a claim for reinstatement, in
which case it is a subsidiary issue to termination. The one that
gives the Labor Arbiter jurisdiction is the termination and
therefore it does not matter anymore as to the amount. It is
just a subsidiary issue.
4.
Claims for actual, moral, exemplary and other forms

of damages arising from the employer-employee
relations;
You go to the NLRC. Why because Article 225, powers of the

commission (one of those kilometric provisions) the only
relevant thing for our consideration once you ask for a
Restraining Order is Art 225 (e), Powers of the commission.
That is the National Labor Relations Commission.
Art. 225. Powers of the Commission. The Commission shall
have the power and authority: xxx
E. 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 or render ineffectual any
decision in favor of such party: Provided, That no
temporary or permanent injunction in any case
involving or growing out of a labor dispute as defined
in this Code shall be issued except after hearing the
testimony of witnesses, with opportunity for crossexamination, in support of the allegations of a complaint
made under oath, and testimony in opposition thereto, if
offered, and only after a finding of fact by the Commission,
to the effect: xxx
1.
That prohibited or unlawful acts have been

threatened and will be committed and will be
continued unless restrained, but no injunction or
temporary restraining order shall be issued on
account of any threat, prohibited or unlawful act,
except against the person or persons, association or
organization making the threat or committing the
prohibited or unlawful act or actually authorizing or
ratifying the same after actual knowledge thereof;
2.
That substantial and irreparable

complainants property will follow;
Damages ha, thats the fourth.

5.
Cases arising from any violation of Article 264 of

this Code, including questions involving the legality
of strikes and lockouts; and
This is the paragraph that grants the Labor Arbiter jurisdiction

over prohibited activities arising from strike - blocking the
injury
to
LABOR RELATIONS TSN

3.
That as to each item of relief to be granted, greater

injury will be inflicted upon complainant by the
denial of relief than will be inflicted upon defendants
by the granting of relief;
4.
That complainant has no adequate remedy at law;

and
5.
That the public officers charged with the duty to

protect complainants property are unable or
unwilling to furnish adequate protection. xxx
This is similar to the rules of court on injunction but there is a

slight difference. The grounds, take a look at it, read it.
Because questions in the BAR, many forms that come from
here. They want to verify whether you know what to do with
your labor law.
Let us say, the union conducts a strike against the employer.
And the ER has not even received the strike notice. The ER
has a right to receive a copy of the strike notice. What kind of
injunction do you need? You need an order to make them
perform the act. What do you do? You know that going on
strike without notice is an illegal strike. You first filed a case
with the Labor Arbiter against the union for conducting an
illegal strike. You allege there is no strike notice because you
have not received any strike notice.
Let us say they are already blocking the ingress or egress, the
main gate of the workplace. Your drivers do not want to go
out anymore of your workplace because the union picketers
are there. Mahadlok sila batoon kuno sila.
What do you do? You need an order to lift their picket lines
and blocking barricades across the main entrance of the
workplace.
Where do you get that order? You cannot get that from Labor
Arbiter. You have to go to NLRC. In Davao, the closest
division of NLRC is in Cagayan de Oro. You have to run to
CDO, bringing with you the evidence that they are blocking
the ingress or egress. What is your evidence? Kwaan nimo na
violence. You can only obtain an order against the actual

perpetrators of the violence.
Kinahaglan ug gwapo kag camera. Magstrike gani naa kay

mga camera dira sa strike zone. Amdam kana sa CCTV. Wa
gani ka ana, menos ka! Purdoy ka! Kay pag abot nimo didto
sa Commission, offer anang imong evidence, mo-move man
dayon ng union ug postponement of the hearing because we
are going to collect our own evidence. Balik na sila nganhi.
Pag-abot nila dinhi ilang tawgon ABS-CBN man o GMA.
Muabot dayon na kay gwapo man ng news-a. Nanguha man
na sila picture anang way strike anang mga trabahoa na.
Tan-awa na wa man! Unya wa man ang barikada dinha,
galakaw lakaw sila, gasinggit singgit sila. Mao na ilang
evidence ioffer didto, counter. There is no blocking the ingress
or egress. Tan-awa ang evidence your honor. It is not self
serving ABSCBN, GMA, all reputable media. Yabo ang imong
evidence, self serving, kinsa man nagkuha? Imong camera,
hagbay ka.
Mao Ikaw gani, unhi ang media. Kanang media dinha, pakwaa
na ug litrato. Unya kuhai sila ug litrato nga nagkuha sila ug
litrato. Kay sa pag abot ana, balitokon man ka nila ana. Dili
man na sila muhatag nimo ug evidence kay mas mahadlok
man na sila sa union kaysa nimo nga management. Dili na sila
muhatag ug ebidensya nimo. Mao na pakita na nimo, ihatag
na nimo sa NLRC, with urgent petition to produce your
coverage of the particular photograph xxx. Mao nay best
evidence, kato ilang gikuha. Kanang imo kuha man na sa
pagkuha. Katong ila mao toy best evidence. Kay di man na
sila muproduce ana. Sultihan ta mo ana kay di jud na itudlo
ninyo!
The gravest mistake of most lawyers is this: because there are
so many prohibited acts committed they will ask for an order
enjoining the strike. You ask that order to enjoin the strike
itself that is very rare, you cannot get that. NLRC will issue an
order enjoining the strike? They will issue an order
enjoining the prohibited activity not the strike itself.
If you want an order enjoining the strike itself you go to the
Secretary of the Labor and you appeal to Art 277(g).
ug vidyo. Naa kay tao patindogon dira nga nagkupot sa kopya

sa Daily Inquirer ba o sa Philippine Star. Mao ni petsaha
gablocking sila! Tan-awa na!
What does Art 277(g) says?
Take a look at 225 (e) [in bold above].
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.
So you cannot issue, you cannot obtain a restraining order ex

parte. In the ordinary rules you can, under very narrow
circumstances, but here it is prohibited. There must be an
opportunity for cross examination in support of the allegations
of a complaint made under oath, and testimony in opposition
thereto, if offered, and only after a finding of fact by the
Commission to the effect.
What is the set of factual findings that will merit the
restraining order?
1.
That prohibited or unlawful acts have been

threatened and will be committed and will be
continued unless restrained, but no injunction or
temporary restraining order shall be issued on
account of any threat, prohibited or unlawful act,
except against the person or persons, association or
organization making the threat or committing the
prohibited or unlawful act or actually authorizing or
ratifying the same after actual knowledge thereof;
So if it is violence and it is not pervasive then you cannot

obtain a restraining order against the union to stop the
Art. 277 [263]. Strikes, picketing and lockouts. xxx
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
LABOR RELATIONS TSN

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, 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.
That is equivalent to a restraining order not to hold a strike.
You get it from the Secretary of Labor. But do not ask it from
the NLRC. The NLRC will not grant because it has authority
only to issue restraining orders or injunctions to stop
prohibited activities.
What are the prohibited activities? Taas kaayo ni ha!
Art. 278 [264]. Prohibited activities.
a. No labor organization or employer shall declare a strike or
lockout without first having bargained collectively in
accordance with Title VII of this Book or without first having
filed the notice required in the preceding Article or without the
necessary strike or lockout vote first having been obtained
and reported to the Ministry.
No strike or lockout shall be declared after assumption of
jurisdiction by the President or the Minister or after
certification or submission of the dispute to compulsory or
voluntary arbitration or during the pendency of cases involving
the same grounds for the strike or lockout.
Any worker whose employment has been terminated as a
consequence of any unlawful lockout shall be entitled to
reinstatement with full backwages. 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: Provided, That mere participation of a
worker in a lawful strike shall not constitute sufficient ground
for termination of his employment, even if a replacement had
been hired by the employer during such lawful strike.
b. No person shall obstruct, impede, or interfere with, by
force, violence, coercion, threats or intimidation, any peaceful
picketing by employees 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

interference.
Obstructing or impeding picket lines. Who does that? It is the
ER who does the obstructing or impeding of picket lines.
c. No employer shall use or employ any strike-breaker, nor
shall any person be employed as a strike-breaker.
EEs strike-breakers, for allowing oneself to be employed as
strike breakers, that is 278 (c) strike-breaker kanang
manggubot sa strike.
Strike-breaker" means any person who obstructs,
impedes, or interferes with by force, violence, coercion,
threats, or intimidation any peaceful picketing affecting
wages, hours or conditions of work or in the exercise of the
right of self-organization or collective bargaining.
Strike sa La Tondea 25 years ago, tulo ka gate sa La
Tondea. Kasagaran ana, once you get an order to stop the
blocking of the ingress or egress. What do you do? You go to
the police. You ask the police to come and assist you in
enforcing the order of the NLRC. Tawgon nimo ang Sheriff sa
NLRC. Unya tawag kag fire department, kay kanang dili
mulihok dinha pasiritan ug tubig! Ang gibuhat sa La Tondea

ang ilang gikuha kanang tighabwa sa septic tank. Bungkag
dayon ang lampinig, way mahibilin ana. Dugay makabalik kay
maligo pa man na. Pasiritan ka anang gikan ug septic tank, di
ba dugay-dugay ka makabalik. (Hahahaha!)
Prohibited practice, escorting those who will replace those
striking workers:
d. No public official or employee, including officers and
personnel of the New Armed Forces of the Philippines or the
Integrated National Police, or armed person, shall bring in,
introduce or escort in any manner, any individual who seeks
to replace strikers in entering or leaving the premises of a
strike area, or work in place of the strikers. The police force
shall keep out of the picket lines unless actual violence or
other criminal acts occur therein: Provided, that nothing
herein shall be interpreted to prevent any public officer from
taking any measure necessary to maintain peace and order,
protect life and property, and/or enforce the law and legal
order.
You are military, police; you are not supposed to stay with-in
the strike zone. You are prohibited unless there is a breakdown of peace and order. That is the only time that you will
come in. But you must stay out, that is one of the rules.
Again another prohibited practice 278 (b).
Any form of disturbance that you create in the picket lines,
that is considered as violation of right to peaceful picketing.
Again another prohibited practice. That is 278 (e).
e. No person engaged in picketing shall commit any act of
violence, coercion or intimidation or obstruct the free ingress
to or egress from the employers premises for lawful
purposes, or obstruct public thoroughfares.
There is a strike here some 20 years against BPI Family Bank.
BPI said, You dont want to join the strike, you come in we
will ensure you have food. You will be paid overtime for the
entire time you stay there etc. Kadtong mga nagastrike unsa
man gibuhat nila? Kada gabii puli puli sila, singko, 1 peso coin,
sige na sila ug ingon ani (dukdok sa samin sa bintana). Tanawa ra gud na, taginting kaayo na. That became the subject
of restraining order. Why is that a prohibited practice? - To
LABOR RELATIONS TSN

make any act of violence, coercion or intimidation. Alihan man
nila ang main entrance sa branch kada nay muduul sa kliyente
sa bangko, pangutan on nila, unsa man ka muwidraw ka o
mudeposit? Magdeposit gani di ka kasod, muwidraw gani,
tugotan na nila. Hain ang security guard, toa sa sulod di

naman siya makangadto sa gawas.
nimo ifile sa prosecutors office, preliminary investigation man

na. They will not file a case until there is a termination
of the administrative labor aspect of the controversy.
Its true the remedy is in the books but that is far as the
remedy goes.
Finally you have this particular remedy;
So you have to describe the action and you ask an order to

stop, you ask the commission to stop this as a form of
prohibited [practice].
What do you need to do to obtain a restraining order?
An injunction suit to restrain or enjoin the prohibited

acts, whether actual or threatened under Art 225(e)
with the NLRC under Rule 58 section 10(?) of the
Rules of Court.
Besides filing your urgent motion, you have to put up a bond

an undertaking to answer for any damage that will arise due
to the issuance of that order. Now if you want to lift the order.
What do you need? You have to also put a counter-bond.
Normally the union does not have the financial power to put
up the counter-bond thats why they will move heaven and
earth to prevent you from obtaining a restraining order.
The rule is a strike CANNOT be enjoined. Prohibited activities

may be enjoined, because the strike is supposed to be a
protected activity. However there are so many examples of
exceptions to the rule. What are the exceptions? We will know
after 5 minutes. BREAK
Again, prohibited practice: While picketing shall commit any

act of violence, coercion or intimidation or obstruct the free
ingress to or egress from the employers premises for lawful
purposes, or obstruct public thoroughfares;
EXCEPTIONS:
Then the premises to which the ER under strike transfers his

equipment in order to continue operations despite the strike,
shall become a strike area. It will be called a runaway shop
and has an extended strike area; it may be picketed by the
strikers. Suppose, you didnt transfer any equipment but the
EEs on strike alleged that you transferred just to persecute
you. And they picket your residence; you are the Gen
Manager. Sige na ug singgit singgit dinha. You have to go to
the Commission to obtain an order restraining or to stop
them. You have to prove that it is not a runaway shop, that
there is no equipment or company operations that is taking
place in your home.
Remember ha, you can question the practice before the Labor
Arbiter, charge the strikers as committing prohibited practices.
But you cannot stop it pendent lite unless you go to the
Commission and ask for restraining order or injunction. But
The Labor Arbiter has jurisdiction over all prohibited practices.
It has jurisdiction as to the issue of the legality of the strike.
What other remedies are there with respect to
prohibited practices?
You can also file an unfair labor practice complaint

under Art 225, Art 224, vis a vis the union or
management; or
You can file a complaint for violation of Art 278
prohibited practices; or
You can file a criminal case under Art 286, Penalties.
Art 286. Penalties.

a. Any person violating any of the provisions of Article 264 of
this Code shall be punished by a fine of not less than
P1,000.00 nor more than P10,000.00 and/or imprisonment
for not less than three months nor more than 3 years, or
both such fine and imprisonment, at the discretion of the
court. Prosecution under this provision shall preclude
prosecution for the same act under the RPC, and vice versa.
Whats the problem with that? The problem with that is, the
prosecutors office by special memorandum of the Department
of Justice to the Department of Labor, they have agreed they
will not prosecute any criminal case arising from the Labor
Code until after the labor case, the administrative aspect of
the case, has been terminated. Kini nia dekorasyon ni! You
will not find a fiscal nga mangusog dinhi. Unya adto man na
GR: A STRIKE CANNOT BE ENJOINED.
1.
The first exception to that rule that a strike cannot

be enjoined is the case of Bulletin Publishing
Corporation vs. Sanchez (144 scra 678).
This is a very interesting case. This case happened before RA

6750, the so-called Herrera-Veloso Law. Herrera-Veloso
came into effect 1989 March 21. One of the amendments
brought to the Labor Code was to distinguish Supervisors from
Managerial EEs.
Under RA 6750 amendment, supervisors were now allowed to
form unions and to enter into collective bargaining. Managers
are strictly prohibited but before that there was no distinction.
If you were a supervisor you were a managerial EE and you
could not form a union. The earlier law, which preceded the
Labor Code - Industrial peace Act (RA 875), allowed
Supervisors to form unions. PD 442 lump Supervisors
together with Management and they were not allowed to form
unions.
The Supervisors of Manila Bulletin formed a Union, they asked
for Collective Bargaining with Management and Management
said you have no right to form a union because you are not
granted so by PD 442 or the LABOR CODE. But the
Supervisors insisted and they file a notice of strike because
Mgt says it will not recognize the union. What did the lawyers
of Manila Bulletin do? Instead of going to the Labor Arbiter to
ask for an injunction, a restraining order, they went straight to
SC on an injunction. The SC entertains the petition of Manila
Bulletin on the grounds of justice and equity. Tan-awa ra gud
na! Sa ngalan sa Hustisya ug Katarungan, the SC entertained
the petition. Whats wrong with that? The SC is not a court of
facts; it is a court of law. You go to the SC once the facts are
established because the SC is not supposed to be a trier of
facts. But the SC entertained the petition and granted the
injunction. WHY? The SC says management has a clear right.
Supervisors are managerial EEs, supervisors are singled out by
Art 245 as not covered by the right to self-organization. At
that time ha! Before RA 6750. Because Mgt has a clear right
supervisors of Bulletin Publishing Corp are enjoined
permanently from forming a union and xxx. After that the
Manila Bulletin became sort of the official publisher of the SC.
(Father talks about why the names of bar-takers have to be

published - just in case there are certain characters who have
a cause of action against you. That you should not be allowed
to become a lawyer and to take the examination. So they can
protest. That is why your names have to published)
LABOR RELATIONS TSN

The SC issued this injunction against the Supervisors enjoining
them. The doctrine is no longer correct because the law has
since been amended, supervisors can now form a union. But
that is an example of the SC acting, because according to the
SC, the petitioner has a clear right to the order that it is
asking the court to issue.
Second instance of enjoining strike:
2.
Article 277(g) the case of hospitals.
If they go on strike the Secretary may immediately assume

within 24 hours from the knowledge of the occurrence of such
strike. The union has an obligation if they do go on strike
that they retain the skeletal force in the hospital so as to take
care of emergencies and the patients that require constant
vital care. The workplace is a hospital and the workers are
unionized and they go on strike, the Secretary of Labor within
24-hours from knowledge. They do not have to be asked, they
do not have to be ordered. Kabasa sila sa newspaper they are
already with knowledge. The Secretary can already issue an
assumption of jurisdiction or certified dispute to the NLRC.
Third example of an exception:
3.
Section 22 of the General Banking Law 2000.
That is the only part of the Banking Law which is not a law on
banking. It is a labor statute. What is that?
SECTION 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 seven (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 National Labor Relations Commission for compulsory
arbitration. However, the President of the Philippines may at
any time.
So the President of the Republic can even assume jurisdiction
over this particular dispute. Banks, they are statutory
determined to be indispensable to the national interest. It
does not say what kinds of banks. It could be a Rural Bank of
Sto. Tomas. If they go on strike the Secretary of Labor, if
dispute is unsettled after 7 days, he could assume jurisdiction
over the labor dispute then the strike is enjoined.
Fourth example is the so-called third parties:
4.
Third parties that are considered innocent bystander.
What is the case? MSF Tire vs. CA (311 SCRA 784,

1999). The third party who is an innocent can resort to the
regular courts and obtain a restraining order against the
strikers. What is this case of MSF Tire vs. CA? There was a
labor dispute between Philtread Tire and Rubber Corporation
and the Philtread Tire Workers Union went on Strike, they
have been on strike for like a month and all of sudden they
received an order your strike is enjoined because an innocent
by-stander, MSF Rubber is suffering grave and irreparable
injury and damages because of your strike. How come? They
were striking against Philtread. What happened was pending
the Strike Philtread Corporation did the following. First, it
entered into contract with the subsidiary of Siam Tyre Corp of
Thailand. What is Siam Tyre? Siam Tyre is a subsidiary of
Siam of Industries which is probably 3 or 4 times bigger than
San Miguel Corporation. Who is the controlling stockholder?
Nothing less than the King of Thailand, King Bhumibol (Trivia:
Longest Living Monarch in the history of man).
Siam Tyre together Philtread form a corporation to buy the

land of Philtread where Philtread is located. That Corporation
was 40% owned by Siam and 60% owned Philtread. Thats
the first contract they entered into. The second contract, all
the facilities, improvement, of that land was sold to MSF
rubber and MSF Rubber was 20% held by Philtread, 80% held
by Siam Tyre. Now MSF goes to the regular courts and says
that I am the new owner I am not a privy to the labor dispute
I am an innocent party, come to my aid, stop this moronic
strikers, keep them away from my face for I am an innocent
by-stander. SC says you are not an innocent by-stander. You
are privy to the dispute; historically the dispute begun with
Philtread and then you bought these properties. By
contrivance you hid behind the corporate vehicle and you
cannot claim yourself to be an innocent by-stander.
Read the case, so that you will see what an innocent
bystander is not. The SC said, an innocent by-stander who
seeks to enjoin the labor strike must satisfy the court that
aside from the ground specified in Rules 58 of the Rules of
court it is entirely different, without any connection
whatsoever to either party to the dispute and therefore its
interest is totally foreign to the conflicts thereof.
What is that proper case for innocent by-stander? It is
the case of Liwayway Publishing Inc vs. Permanent
Concrete Workers Union (108 scra 161).
What is the story in Liwayway? Again it is Manilla Bulletin
because the owner of Liwayway is also the owner of Manila
Bulletin. Liwayway Publications, the building was located in
the same place, within the same premises as Manila Bulletin.
There was a strike in Manila Bulletin. The picket was in the
main entrance. Liwayway said our operations are prejudiced.
The strikers say, Pareho ra bitaw mo, kinsa may majority
owner ana? Si Hans Menzi. Si Menzi ra man pud owner sa
Bulletin. Pareho ra mo, ari mi diri magpicket sa atubangan.
So di kasod ang mga truck sa Liwayway. What did Liwayway
do? Liwayway went to the regular courts. Why not to the
Labor Arbiter or Secretary of Labor? Why did he not go in the
name of Article 277(g)? Because it was not a labor
dispute. There was no ER-EE relationship between the
two. It had to go to the regular courts. And it went there
because his claim is we are an innocent bystander. Why are
we suffering? We have been unfortunate being in the same
premises as Manila Bulletin that has a labor controversy with
its union. Nadamay lang mi. The union wants to deal a blow
to their ER. Tupad ra mi so naigo sad mi. The court issued a
restraining order. The union appealed. The appeal was
granted by the CA thats why Liwayway Publishing went to SC.
SC says this is an innocent by-stander. No connection at all,
thats the criteria of the SC.
Lets change the facts of the case. Gaisano Mall, you are
engage in the business of selling fishballs, bayad ka ug kinse
mil kada bulan to Gaisano to sell fishballs. Pag abot nimo
nagstrike namn sila dinhi. Unsa naman mahitabo anang akong
fishball? Ma water ni akong fishballs! Kahinumdum ka sa
gisulti ni Fr. Nazareno. I will go to court. I am innocent, I have
done nothing wrong! Im going to the regular courts asking
for an urgent order to restrain these strikers from preventing
me operate my fishball stall. You think the court here will pity
you and issue a restraining order so you can go in? I dont
think so. Why? Because you and Gaisano - the ER struck
against by the employees within Gaisano Mall have privity of
contract. Lessee ka man, Gaisano is the lessor you are
connected with the ER struck against and so therefore you are
connected.
Whats the difference here, the owner of this property
(Liwayway case) is Hans Menzi Corporation. Kamong duha
LABOR RELATIONS TSN

lessee ini. He is the lessor you are the lessee, unsa man
inyong connection? Ang koneksyon ninyo nagtupad ra mo.
Mura ba ug sa jeepney tupad ra mo diha. Mao ba na na ang

konek? No. Its just juxtaposition. It must be legal connection
that makes you no longer an innocent bystander.
5.
The last example of restraining order injunction of

the strike is 277(g). It says:
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.
In many decisions the SC has said the assumption of
jurisdiction order does not have to contain the injunction or
restraining order. It is enough for the secretary to say I am
assuming jurisdiction over the labor dispute or I am certifying
the dispute to the NLRC. Once he does that, automatically the
strike is enjoined. Bisag nakalimot pa siya sulti nga ang strike
enjoined na because of this assumption of jurisdiction order.
Because it says in 277 (g) that it has the effect of
automatically enjoining the intended or impending strike the
Secretary does not have to express these things.
Effects of an assumption of jurisdiction by the
Secretary or his certification of the case to the
Commission
1) All strikes or lock-outs between the same parties are
enjoined whether they planned or already in
progress. If they are already in progress, it has to be
immediate.
2) All workers have to return to work and the ER must
accept all the workers.
Latest cases:
University of Immaculate Concepcion

Inc vs. Secretary (448 scra 190,
January 14, 2005)
The Secretary of Labor upon assumption of jurisdiction of a

labor dispute can he order the ER to reinstate the EEs
terminated by the ER even if those terminated EEs are not
part of the bargaining unit and their termination is covered by
the decision of Voluntary Arbitrator which decision had already
become final and executory? Mao ni nia ang dispute sa UIC
faculty union. The big issue and they declared a strike on this
was the status of department heads, xxx heads of the faculty.
Are they part of management or rank-in-file faculty? Can they
join the union or can they not? The School Administrator of
the university said no they cannot join a union, because they
have the recommendatory power, to promote, make regular,
transfer faculty member. They debated on that they could not
agree. The union filed a notice of strike. During the
conciliation mediation, a conciliator succeeded in convincing
the union and mgt to submit this issue to voluntary
arbitration. They agreed, they submitted into voluntary
arbitration. The Voluntary Arbitrator said the University
Administration is correct because the holders of these
position, dept heads they act for and behalf of the mgt. they
are in conflict of interest therefore they cannot join the faculty
rank in file. The union did not appeal the decision because
they were very busy preparing for the strike. The decision of
the VA after 10 days from receipt of the copy of it becomes

final and executory. In the meantime they go on strike, the
school goes up to Manila and asks the Secretary to assume
jurisdiction. The Secretary assumed jurisdiction. But the
Secretary says you must accept everybody back to work. The
whole idea of accepting the workers that were back to work is
to return the situation to the state before the eruption of the
dispute. To restore the situation Ante bellum, before
disruption of the dispute. Mgt did not make a mistake. Why
because its already covered by a decision that has become
final and executory. What did the SC say? Are they or are they
not still to be accepted. The SC says, yes they have to return
to work and mgt cannot xxx . They have to be returned to
work by the virtue of the overarching interest of the state to
restore the status quo ante bellum. The EEs concerned were
ordered reinstated. Remember that!
PLDT vs. Manggagawa ng Komisyon sa

Pilipinas (463 scra 418, 2nd Division,
Justice Chico Nazareno, 2005)
The Secretary of Labor assumes jurisdiction of the labor

dispute and issued the return to work orders to all striking
workers except those who were terminated due to
redundancy. That is what the issue of the strike. Who were
these workers that were made redundant? The telephone
operators. The union they were opposed to the redundancy
even if the redundancy benefits were higher than that which
were demanded by the union. The union struck on December
23, 2002 after observing the cooling off period to protest
PLDTs redundancy program. On Dec 31, 2002, 383 union
members were terminated pursuant to the redundancy
program by a 30-day notice to the workers and to the Dept of
Labor. Dec 31 was the end of the 30-day notice so they were
terminated. Many of them signed a waiver already because
they received the termination benefits. Most of the telephone
workers have received their separation benefits which were in
excess of what Art 283 mandated. The union filed a MR to the
Secretary xxx. The Secretary certified the labor dispute to the
NLRC. The striking workers were allowed by PLDT to come
back but not the telephone operators. Are the telephone
operators covered? Many of them already received the
separation benefits. The SC said they are covered because
they were part of the working complement of PLDT before
there was the controversy. Remember the point is, return to
work aspect of the assumption of jurisdiction is not granted in
favor of the management or in favor of the union. It is
granted for the sake of the economy because this particular
workplace is considered by the Secretary as indispensable to
the national interest. So you have to return it to the status
ante bellum. So therefore these people have to be returned to
work. All workers have to return to work and the ER must
accept all the workers, thats the 2nd effect of assumption for
certification of the dispute.
3) All cases between the same parties except when the
certification order specifies otherwise the issue
submitted for arbitration which are already filed or
may be filed and are relevant to - all are proper
incidents of the certified case shall be considered
subsumed or absorbed by the certified case or
assumed case and shall be decided by the
appropriate division of the NLRC or the Sec of Labor
in case of assumption of jurisdiction. The 2005
Revised Rules of Procedure of NLRC shall be
pertinent in the transition period in the consolidation
of the case. That is the ruling in ST. Scholastica vs.
Sec Torres (210 scra 565) and International
Pharmaceuticals vs. Secretary (205 scra 59,
1996).
LABOR RELATIONS TSN

4) Parties must continue to mediate and conciliate
under the auspices of the National Conciliation and
Mediation Board.
5) Parties must refrain from committing further acts
that aggravate the dispute.
have a more comprehensive settlement of the dispute

between the parties, that is the idea behind consolidation and
assumption of jurisdiction.
Those are the effects of assumption of jurisdiction or the

Certification of the disputes.
Art 277 (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.
Labor dispute
The Secretary assumes jurisdiction or certifies to the NLRC. A
secretary will not leave everything and just attend to the case.
What does the Secretary normally do? He gives it to the RDO
Regional Director of Labor, who becomes the hearing officer.
Here, if it certifies, he gives it to the NLRC branch. If it is in
Mindanao, the one who will be the hearing officer will be
Cagayan de Oro. That is where the NLRC court Division is.
Then they will conduct the hearings, you will submit your
position papers there etc and then you will submit your
findings of facts and recommendations to the Secretary and
the Secretary will make the final decision.
Either the Secretary will accept en toto what the RDO has
made by way of findings of facts, add recommendations, or
modify it or totally reject it or call for another hearing. So it
depends on the Secretary. That is why in your political law,
the requisites for due process in admin cases is an assumption
of jurisdiction of the case. What is that? Ang Tibay vs. CIR.
Taas kaayo nga requisites, walo kabuuk diri na gikan,
assumption of jurisdiction man na. CIR lang kaniadto wa pay
RDO.
Remember, there is this case. UST vs. NLRC (190 scra
758) SC says the NLRC while sitting in compulsory arbitration
case certified to it by the Sec of Labor and Employment is not
taking the role of Judicial court, but as an admin body charge
with the duty to implement the order of the Secretary. As an
implementing body, its authority does not include the power
to amend the Secretarys order. Because of the heated fight
already in Sto. Tomas, the NLRC issued an order that said,
Those that have been dismiss no longer need to go back to
work. When the very labor dispute arose out of the dismissal
of the faculty xxx. The secretary corrected the NLRC. You
cannot amend the order of return to work. You are just an
extension of Secretary. In other words, this is not an original
jurisdiction of NLRC. NLRC is just an extension of the
Secretary of Labor.
So it issued an order, what happens? You *** in the Court of
Appeals if you are dissatisfied with the order of the Secretary
in case of assumption or the NLRC in case of certification to
the NLRC. From CA you go to the SC. One of the effects is
consolidation of all cases. Between the union and the ER
struck against, you consolidate all the cases. Because the
decision of the Secretary is now reviewable by the CA it is my
submission that if there is a separate case between the union
and the ER and is already in the CA level the same is NOT
consolidated. Why? Because it will go back to the CA ***
review in case it is found to be not acceptable by the parties.
It will remain here. But if it is the Labor Arbiter, Voluntary
Arbitrator, Wage Commission all these different bodies then
that will be consolidated with the Secretary in case of
assumption or with the NLRC in cases of Certification. Is that
true if one of the cases is let us say ULP and secretary
assumes jurisdiction.
Can the Sec. have jurisdiction over that when the original
jurisdiction of ULP under 225 is Labor Arbiter. That is an
exemption. Why? Why is there a need for consolidation? To
Sept 24, 2015 (AS)
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, 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.
It is a form of injunction. When Sec of Labor intervenes in a
particular dispute because it is considered to be in an industry
indispensable to the national interest This phrase which is
supposed to be the yardstick of intervention is surprisingly not
questioned by the court. I told you Ateneo once had a labor
dispute that ended in a strike in 1946. The Sec of Labor
assumed jurisdiction over the dispute saying that AdDU is
indispensable to the national interest. And yet court did not
correct the Sec when it was raised on SC on certiorari. The
LABOR RELATIONS TSN

petition of the union was simply dismissed by a minute
resolution. A minute resolution is not signed by any justice. It
is like an order issued by the court in open court. What you
have is the Sec and the Clerk of Court, then the CoC
addresses it to the parties. On such a day and such an hour,
the court gathered en banc issued the ff resolution. For lack of
merit, petition filed is dismissed. So ordered The SC has
dismissed your petition and there is no discussion of the facts
of the case, applicable law or weight of your evidence. They
just tell you that your petition is dismissed for lack of merit.
So there are challenges that the intervention of the Sec in
many cases do not warrant the yardstick that says the labor
dispute arises from an industry indispensable to the national
interest In the PLDT case, the reasoning why the court does
not do that is given by Chief Justice Enrique Fernando: It
behooves upon this court to assume a becoming modesty
when a co-equal branch of government such as the executive
exercises its discretion as mandated by the law itself and only
under the gravest of grounds such as grave abuse of
discretion as to amount to lack of jurisdiction is the court
minded to correct the exercise the discretion that is assigned
to each specific department because the law itself creates this
department, gives it discretion the court does not question it
General Rule: A strike conducted after an assumption of
jurisdiction is a prohibited activity. All those who participated
in the strike whether member or officer can be terminated.
The first yardstick is as issued by Marcos in Jan 26,

1976 the phraseology was vital to the national
interest.
Then it was changed by Sec 11, BP 103 to
affecting the national interest.
Finally RA 6715 amended it to indispensable to the
national interest.
GTE Directories Corp v Sanchez 197 SCRA 452: By way

of obiter dictum the court said that the Secretary was wrong
in assuming jurisdiction.
Suppose the assumption of jurisdiction forgets to order the
workers to return to work, what happens? Can the union file a
supplementary pleading asking for a clarification to whether
they have to return to work and until that motion is heard
they are excused from returning to work?
No. SC says that when the Sec assumes jurisdiction over the
case, you have to return to work even if the order itself does
not contain an return-to-work order.
When labor disputes arised in industries in the so-called free
trade zones, the Sec of Labor automatically assumes
jurisdiction. No strike! What is the reason? The country
needed the foreign currency.
You have to know the distinction between an illegal strike
from a prohibited activity strike.
Exceptions:
1. NFL v NLRC
The labor dispute here is a bargaining deadlock in the
renegotiation of an old CBA. The deadlock point is the quota
for each rubber tapper of a certain company in Basilan. The
original CBA provided that each tapper should tap 250 trees.
The workers asked that the quota be lowered but the
management refused to give in. The workers union filed a
notice of strike but the Sec of Labor assumed jurisdiction over
it so they had to continue working. Di man gyud makuha ang
250 trees, wala nalang sila nibalik. The next thing they knew
gipahawa sila sa bunk houses because they refused to comply
with the return to work order. That is when they filed a
certiorari proceeding with SC.
A strike may be legal and yet it is a prohibited activity. Once

you hold a prohibited activity strike then all those who
participated in the strike are out.
COMPLETE 3RD EXAM COVERAGE. KJ
The SC said that this kind of not returning to work is

excusable because even if they returned to work, they still
cannot comply with the 250 trees quota and they would be
fired. The SC ordered their reinstatement.
2. PAL v Brillantes (1997)
3. Nissan Motors v Secretary (June 21, 2006)
This is a case of in pari delicto of both MGT and union. They
are both guilty of prohibited practices that is why the court did
not terminated those workers who refused to return to work.
4. Phimco Industries Inc v Brillantes (30 Scra 740)
This where the Secretary assumed jurisdiction over Phimco
Industries. The Sec. says Whereas the labor dispute is likely
to cause serious disturbance. Whereas the labor dispute
though it is not occurring in an industry indispensable to the
national interest yet labor disturbance will be widespread
because of its special role in the community. Thereof by virtue
of the power under Art 277, this office assumes jurisdiction
over it The SC corrected the assumption of jurisdiction in this
case.
This yardstick has undergone so many changes:

Labor Relations 3M 2015 3rd Exam

Transféré par

Informations du document

Description originale:

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Labor Relations 3M 2015 3rd Exam

Transféré par

Droits d'auteur :

Formats disponibles

LABOR RELATIONS TSN

From the lectures of Father Agustin Nazareno

constitution are policies. They require implementing

imong ginikanan, ayaw na na buhata, buhaton gihapon nimo

LABOR RELATIONS TSN

Now, the SC says that the prohibition against making

may be instituted without a final judgment finding that an

LABOR RELATIONS TSN

By the employer (Art. 258)

Now, maybe commentators believe that only employers and

242, paragraph (o) of this Code shall not apply to

Unsay pasabot anang interfere? Mag labot-labot, mag apil-apil

LABOR RELATIONS TSN

It depends on the actors ha.

Interfere, that is the problem. What are permissible workplace

If its the employer interfere restrain coerce

Alright, when does ULP prescribe? ULP must be filed within

To interfere with, restrain or coerce employees in

A union security clause is a contractual limitation to the right

So the employer does not interfere if he acts on the union

Now the rule says No union solicitation at the workplace

work station during actual working time.

So we are now in ULP, 258. As to ULP, I think I already told

It can be a juridical person or a natural person. Although it is

4 | Ad Majorem Dei Gloriam

LABOR RELATIONS TSN

258 (b). To require as a condition of employment that a

When, if at all, is an employer not allowed to fill up positions

Yellow Dog contract. You will be hired provided you dont

258 (d). To initiate, dominate or assist or otherwise

What do you think of an employer who will make you write an

I gave you the notes on the latest Shoplifters case.

LABOR RELATIONS TSN

bargaining unit? It is exclusive only as to bargaining or

There must be controversy or a case where

The union must request in writing that

Management must make its own investigation

Remember these three requirements for a valid exercise of

LABOR RELATIONS TSN

How do you give to everyone? Signing bonus. If it is

Diba pareho ra na? What is the difference? Dako na sila ug

Kaning 118 ripens

The prescriptive periods are also different, money claims is 3

Take note that there is only one kind of violation constitutes

7 | Ad Majorem Dei Gloriam

LABOR RELATIONS TSN

A labor dispute always involves:

Temporary stoppage of work

Nag-strike ang mga jeepney drivers kay nisaka ang presyo sa

LABOR RELATIONS TSN

management heard about that, management talked to the

Sept. 16, 2015 (NDB)

That it is a concerted action by the employees.

We said that there is a controversy as to where the seat for

There is a work stoppage.

The work stoppage is a result of a labor or industrial

A labor or industrial dispute is defined under Article 219, as

So MGT says, We would be losing a week. So we just ask you

Now I said that there is a fourth additional element. The

If so, the leaders lose their employment status. If they did

That the work stoppage must be directly intended.

9 | Ad Majorem Dei Gloriam

LABOR RELATIONS TSN