STRIKES AND LOCKOUTS

Labor 2
LDCU College of Law
by: ngeeng2x

Strike – is any temporary stoppage of work by the concerted action of employees as a result of any industrial or
labor dispute. The purpose of strike is to put economic pressure upon the employer so that he will accede to the
demands of the union.

Lockouts – is one of the economic shields of the employer against employees. It is an act of the employer
temporarily refusing to furnish work as a result of an industrial or labor dispute. It may comprise shutdowns,
mass retrenchments and dismissals. It may constitute of replacing the employees who are member of the union
by employees who are not members of a union.

Classification of strike
a.) Authorized – strike called upon or approved by the majority of the union membership.
b.) Unauthorized (wildcat) – they are called w/o the majority approval of the union members in the bargaining
unit. They take form of rebellion by the rank and file members against the union leadership or part of the
members against the union leadership or part of the membership against the total membership.

Who can file a notice of strike?

Unions that are certified as the sole and exclusive bargaining agent (SEBA) may file a notice of strike at the
NCMB Regional Branch. In the absence of a SEBA, a legitimate labor organization may file but only on grounds
of ULPs. A group of employees without a union cannot stage a strike.

What are the valid issues/grounds that may be the subject of a notice of strike/lockout?
A notice of strike or lockout may be filed on grounds of unfair labor practice (ULP) or deadlock in collective
bargaining (CB).

What are the periods to be observed before going on strike?

If the ground of the notice of strike is CB deadlock, the cooling-off period is 30 days. If ULP, 15 days. During
these periods, the NCMB shall exert all efforts at the mediation and conciliation to effect voluntary settlement. If
Union Busting, the cooling-off period is dispensed with but the mandatory 7-day Strike Ban period must be
complied with.

Union Busting
a.) A dismissal from employment of union officers duly elected in accordance with the union constitution by laws
b.) the existence of the union must be threatened by such dismissal

In case of dismissal of union officers, the 15-day cooling-off period shall not apply and the union may declare a
strike after observing the 7-day mandatory strike ban period which starts after submission of the strike vote
results.
A union intending to stage a strike is mandated to notify the NCMB of the meeting for the conduct of strike vote,
at least 24 hours prior to such meeting, known as the 24hour prior notice rule.

6 Categories of an Illegal Strike

1. Contrary to a specific prohibition of law (ex. Strike by employees performing government functions)
2. Violates specific requirement of law on the requisites of a valid strike
3. Declared for unlawful purpose
4. Employs unlawful means
5. Violation of an existing injunction
6. Contrary to an existing agreement
When may a strike or lockout be declared illegal?
A strike or lockout may be declared illegal if any of the requirements for a valid strike or lockout is not complied
with. It may also be declared illegal if it is based on non-strikeable issues or if the issues involved are already the
subject of arbitration. During a strike or lockout, when either of the parties commits prohibited acts or practices,
the strike or lockout may be declared illegal. Even if the strike were to be declared valid because its objective
and purpose is lawful, the strike may still be declared invalid where the means employed are illegal constituting
unlawful acts.

Effects of non-compliance of the requirements for a valid strike or lockout.

The employer may be authorized to terminate the employment of union officials who knowingly participated in
the illegal strike and/or any workers or union officer who knowingly participated in the commission of other illegal
acts during the strike.

In case the lockout is declared illegal, any worker whose employment

Can the employer file a petition to declare the strike illegal?

Yes. An employer may file a petition to declare the strike illegal at the NLRC-RAB where the employer is located.
What is the consequence of an illegal strike?
When the strike is held illegal, only the union officers who knowingly participated will be considered to have lost
their employment status. The union members who knowingly participated in the commission of illegal acts during
the strike may be held liable.

Instances when no strike or lockout may be declared

1. Violations of CBA except flagrant and malicious refusal to comply with its economic provisions
2. No strike or lockout maybe declared on the grounds involving inter and intra union disputes.
3. No strike will be declared after assumption of jurisdiction by the Sec of Labor and employment or after
certification or submission or during the pendency of cases involving the same grounds for the strike or lock out.

Procedural requirements for a lawful strike or lock out

1. Based on a valid and factual ground
2. Compliance with the 24 hours prior notice rule on stike voting
3. Must be approved by the total membership of the union obtained by a secret balloting in a meeting called for
the purpose.
4.A Strike or lockout vote shall be reported to the NCMB-DOLE regional branch at least 7 days before the
intended strike or lockout subject to the cooling-off period
5. A strike or lockout notice shall be filed with the NCMB following the cooling off period except in cases
constituting union busting.

Purpose of 24 hour notice rule and its effects – designed to inform the NCMB of the intent of the union to
conduct a strike vote, give NCMB ample time to decide whether or not there is a need to supervise the conduct
of strike vote to prevent any acts of violence or irregularities and should the NCMB decide motu propio or upon
the request of an interested party including the employer, to supervise strike vote, to give ample time to prepare
for the deployment of the requisite personnel including peace officers if need be.

Purpose of strike vote – is intended to give the DOLE an opportunity to verify whether the projected strike
really carries the approval of the majority union members. It also discourages wildcat strikes, union bossism, and
even corruption.

Purpose of Mandatory cooling-off period - The 15 and 30 days requirement is design to afford the parties the
opportunity to amicably resolved the dispute with the assistance of the NCMB conciliator/Mediator.

Purpose of Mandatory 7 days strike ban – is intended to give the DOLE an opportunity to verify whether or not
the projected strike really carries the imprimatur of the majority of the union members.
Who has jurisdiction to determine the legality of strike or lockout?
In general, the Labor Arbiter in the appropriate Arbitration Branch of the NLRC has the power to determine
questions involving the legality or illegality of a strike or lockout upon the filing of a proper complaint and after
due hearing.
Where the matter of legality or illegality of a strike is raised in the dispute over which the Secretary assumed
jurisdiction or in compulsory arbitration, the same may be resolved by the Secretary or the Commission,
respectively.

Doctrinal Rulings on legality of strike

1.) Strike declared in good faith

2.) Strike was the consequence of ULP
3.) Strike declared to seek better terms and conditions of employment
4.) Strike staged against ULP and discriminatory acts
5.) Strike declared for failure of employer to abide by the terms of the CBA
6.) Strike declared due to ULP

Doctrinal rulings on illegality of strike

1.) Strike staged on non-strikeable ground

2.) Strikes purpose is trivial, unjust and unreasonable
3.) Strike staged for non-compliance of the legal requirements
4.) Strike staged in violation of the no-strike caluse in the CBA
5.) Strike becomes illegal if violence is pervasive and widespread
6.) Strike staged despite issuance of an assumption or certification order
7.) Strike staged without availing of the grievance machinery procedure and voluntary arbitration clause in the
CBA is illegal.
8.) Strike staged to circumvent CBA
9.) Strike staged by a minority union
10.) Strike staged in violation of “preventive mediation order”
11.) Strike stage for violation of art 270

Lockouts – is one of the economic shields of the employer against employees. It is an act of the employer
temporarily refusing to furnish work as a result of an industrial or labor dispute. It may comprise shutdowns,
mass retrenchments and dismissals. It may constitute of replacing the employees who are member of the union
by employees who are not members of a union.

Grounds for lockout

1.) Collective bargaining Deadlock

2.) Unfair Labor Practice

Procedural requirements for lockout

1.) Notice of lockout

2.) Lockout vote
3.) Lockout vote report

Declaration of lockout
If the dispute is not settled after the lapse of the cooling-off period and the 7 day period from the submission of
the lockout vote report, the employer may declare a lockout.

Lockout and shutdown Distinguished

In a lockout, the plant continues to operate. In a shutdown, the employer wilfully ceases operations following a
complete lockout.
Doctrinal Rulings on Legal lockout
1.) Economical reverses or financial loses are justifiable grounds for closure of establishment or lay-off
2.) Legitimate sale of business which is a management prerogative is not a lockout
3.) A permanent closure of business is not lockout but it must be bona fide.
4.) Stoppage of business operations due to lack of raw materials is not a lockout
5.) Closure of business due to strike is not lockout in order to prevent urther hemorrhaging ot its capital or
economic catastrophe

Doctrinal Rulings on Illegal lockout

1.) Non-compliance of the legal requirements
2.) Lockout declared before the lapse of the cooling-off and waiting periods
3.) Violating the no-lockout clause
4.) Lockout based on inter-union or intra-union disputes
5.) Lockout declared in mala fide

Assumption of jurisdiction over national interest cases by the Secretary of labor and Employment
When a labor dispute is likely to cause a strike or lockout in an industry indispensible to the national interest, the
secretary may assume jurisdiction over the dispute and decide it or certify the same to the National Labor
Relations Commission for compulsory arbitration, provided, that any of the following conditions is present:

1.) Both parties have requested the secretary to assume jurisdiction over the labor dispute
2.) After conference called by the office of the secretary of labor and employment on the propriety of its issuance,
motu propio or upon a request or petition by either parties to the labor dispute.

The grant of breadth of discretion to the secretary of Labor under art. 278 must be within the confines of law. The
assumption power granted to the President and the secretary of labor is an extraordinary and pre-emptive
authority strictly limited to the national interest cases.

The main purpose of the assumption is the resumption of the employer’s operations so essential to the national
interest and to prevent a tremendous damage to national interest. The striking workers must cease and/or desist
from any or all acts that tend to, or undermine this authority of the secretary of Labor, once an assumption
certification is issued. The mere issuance of an assumption order automatically carries with it a return to work
order although not expressly stated therein. When the secretary assumes jurisdiction over a labor dispute, any
strike or lockout, actual or intended, is automatically enjoined and to ensure compliance the secretary can seek
assistance of law enforcement agencies. This is in keeping with the rationale that any work stoppage or
slowdown in an industry can be inimical to national economy.

In case of non-compliance with return to work order in connection with the certification or assumption of
jurisdiction, the party may be subjected to immediate disciplinary action, including dismissal or loss of
employment status or payment by the locking-out employer of back wages, damages and other affirmative relief,
even criminal prosecution against either or both of them. The certification orders are executor in character and
are to be strictly complied with b the parties even during the pendency of any petition questioning their validity.

Industries indispensible to national interest (vital industries)

1.) Hospital Sector
2.) Electric Power Industry
3.) Water supply services, to exclude small water supply services such as bottling and refilling stations
4.) Air traffic control
5.) Such other industries as maybe recommended by the national tripartite industrial peace council.

Picketing – is a device used by the union to bolster their strike. It refers to outside patrolling or marching to and
fro of the strikers at the company’s premises usually accompanied by the display of placards and other signs
making known the facts involved in a labor dispute. In order to be lawful, picketing must be carried on peacefully
and in conformity with lawful objectives. In short, the ends and means must concur. Picketing may be declared
illegal if the picketers start to utter forceful, coercive statements in an attempt to prevent members of other
unions crossing the picket line.

Stranger Picketing – the kind of picketing by a union having no members employed in the place picketed.
There exists no employer-employee relationship.
Injunction upheld to be valid

1.) An injunction prohibiting the union from blocking the ingress of an industrial plant
2.) Picketing that resulted in preventing other employees of a company
3.) Picketing union cannot prevent employees of another company from getting in and out of its rented
premises for it could be liable for damages.

Boycott – is a combination, the purpose of which is to coerce the employer by the restriction and withholding of
patronage so as to diminish his volume of business.

Kinds of boycott

1.) Primary boycott – where the refusal to patronize is confined to the employees who have direct interest in
the dispute with the employer. There is employer-employee relationship.
2.) Secondary boycott – where the refusal to patronize is done by persons who have no economic interest
in the dispute, enlisted to assist the employees in coercing the employer to meet the demands of the
workers.

Government employees cannot join a strike

They cannot call or join a strike, mass leaves, walkouts and other forms of mass action in order to realize their
demands or force concessions, economic or otherwise. Such is considered an insurrection against public
authority, in the light of the doctrine of State sovereignty. A strike against the government by its employees is a
civil service offense which may be punished administratively. The object of the prohibition is to maintain the
independence and neutrality of civil servants.

Right to strike can be waived

It can be waived by inserting a no-strike clause in the CBA or a provision expressly providing for conclusive
arbitration of grievances.

Reinstatements of workers may be denied

1. Employee concerned was found to have committed serious misconduct prejudicial to the employer
2. Business has passed to a transferee in good faith
3. Employer suffered serious economic reverses.
4. Strikers have found substantially equivalent and regular employment
5. Strikers were not actually working at the time of the strike
6. Reinstatement of illegally dismissed strikers has become impossible.
7. Where they are the officers of the union that staged an illegal strike
8. Where employee-striker knowingly participates in the commission of illegal acts during the strike such as
violence, coercion, intimidation and the like.

Due process to be observed in termination of employment on strike related acts

1. A written notice specifying the grounds for termination and giving the employee a reasonable opportunity
to explain his side
2. Another written notice indicating that upon due consideration of all circumstances, grounds have been
established to justify the employer’s decision to dismiss the employee

Liability between Union members and officers

A worker merely participating in an illegal strike may not be terminated from employment. It is only when he
commits illegal acts during a strike that he may be declared to have lost employment status. In contrast, a union
officer may be terminated from employment for knowingly participating in an illegal strike or participates in the
commission of illegal act during a strike.
Strikers not entitled to back wages; exceptions
As a general rule, striking employees are not entitled to the payment of wages for unworked days during the
period of the strike. On the other hand, even after the labor tribunal has made a finding of unfair labor practice, it
shall have the discretion to determine whether or not to grant back wages.

The following instances back wages may be given:

1. Discriminatory dismissed employees must receive back wages from the date of the act of discrimination,
that is, from the day of their discharge
2. The strikers did not strike but were practically illegally locked out.
3. The strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept
the offer.

Prohibitions against strike-breakers

A strike breaker is any person who obstructs , impedes or interferes with by force, violence, coercion, threats or
intimidation any peaceful picketing by employees during any labor controversy affecting wages, hours or
conditions of work or in the exercise of the right to self-organization or collective bargaining.

Neither shall the employer use or employ any strike breaker nor shall any person be employed as a strike-
breaker or fink.

As a general rule, a plocie officer cannot arrest or detain a union member or union organizer without previous
consultation with the secretary of labor and employment.

Arrest can be lawfully made in the following cases

a. Any person who obstructs the free and lawful ingress to and egress from the employer ’s premises or
who obstructs public thourough fares may be arrested and accordingly charged in court.
b. Any person who shall have in his possession deadly weapons