Strikes, Picketing and

Lockouts
ARTICLES 278-280
 “Strike” means any temporary stoppage of work by
the concerted action of employees as a result of an
industrial or labor dispute.

 “Lockout” means any temporary refusal of an

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

 “PEACEFUL PICKETING” is the right of workers

during strikes consisting of the marching to and fro
before the premises of an establishment involved in a
labor dispute, generally accompanied by the carrying
and display of signs, placards or banners with
statements relating to the dispute
 1. LEGAL STRIKE – one called for a valid purpose and conducted through means
allowed by law.

 2. ILLEGAL STRIKE – one staged for a purpose not recognized by law, or if for a valid
purpose, conducted through means not sanctioned by law.

 3. ECONOMIC STRIKE – one staged by workers to force wage or other economic
concessions from the employer which he is not required by law to grant (Consolidated
Labor Association of the Phil. vs. Marsman and Company, 11 SCRA 589)

 4. ULP STRIKE – one called to protest against the employer’s acts of unfair labor practice
enumerated in Article 248 of the Labor Code, as amended, including gross violation of the
collective bargaining agreement (CBA) and union busting.

 5. SLOWDOWN STRIKE – one staged without the workers quitting their work but merely
slackening or by reducing their normal work output.

 6. WILD-CAT STRIKE – one declared and staged without filing the required notice of strike
and without the majority approval of the recognized bargaining agent.

 7. SIT DOWN STRIKE – one where the workers stop working but do not leave their place of
work.

WHAT ARE THE DIFFERENT FORMS

OF STRIKES
 An industrial or 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. (Article 212 (1) Labor Code, as
amended by Section 4, R.A. 6715)

INDUSTRIAL DISPUTE,
DEFINITION
 The right to strike is a constitutional and
legal right of the workers as the employers
have the inherent and statutory right to
lockout, all within the context of labor
relations and collective bargaining. It is a
means of last resort and presupposes that
the duty to bargain in good
faith has been fulfilled and other vol
untary modes of dispute settlement have
been tried and exhausted.

NATURE OF THE RIGHT TO STRIKE

AND LOCKOUT
 Any certified or duly recognized bargaining
representative may declare a strike in cases
of bargaining deadlock and unfair labor
practice. Likewise, the employer may
declare a lockout in the same cases.

 In the absence of a certified or duly
recognized bargaining representative, any
legitimate labor organization in the
establishment may declare a strike but only
on the ground of unfair labor practice.

WHO MAY DECLARE A STRIKE OR

LOCKOUT?

1. A strike or lockout NOTICE shall be filed
with the National Conciliation and
Mediation Board (NCMB) at least 15
days before the intended date of the
strike or lockout if the issues raised are
unfair labor practices, or at least 30 days
before the intended date thereof if the
issue involves bargaining deadlock.


REQUISITES OF A LAWFUL STRIKE

OR LOCKOUT
 2. In cases of dismissal from employment of
union officers duly elected in accordance with
the union constitution and by-laws, which
may constitute UNION BUSTING where the
existence of the union is threatened, the 15-
day cooling-off period shall not apply and the
union may take action immediately after the
strike vote is conducted and the result
thereof submitted to the Department of
Labor and Employment.

REQUISITES OF A LAWFUL STRIKE

OR LOCKOUT
 3. A strike must be approved by a
majority vote of the members of the
Union and a lockout must be approved by
a majority vote of the members of the
Board of Directors of the Corporation
or Association or of the partners in a
partnership, obtained by secret ballot in a
meeting called for that purpose.

REQUISITES OF A LAWFUL STRIKE

OR LOCKOUT
 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.

REQUISITES OF A LAWFUL STRIKE

OR LOCKOUT
 5. In the event the result of the
strike/lockout ballot is filed within the
cooling-off period, the 7-day requirement
shall be counted from the day
following the expiration of the cooling-off
period.

REQUISITES OF A LAWFUL STRIKE

OR LOCKOUT
 6. In case of dismissal from employment
of union officers which may constitute
union busting, the time requirement for
the filing of the Notice of Strike shall be
dispensed with but the strike vote
requirement being mandatory in
character, shall “in every case” be
complied with.

REQUISITES OF A LAWFUL STRIKE

OR LOCKOUT
 7. The dispute must not be the subject of
an assumption of jurisdiction by the
President or the Secretary of Labor and
Employment, a certification for
compulsory or voluntary arbitration nor a
subject of a pending case involving the
same grounds for the strike or lockout.

REQUISITES OF A LAWFUL STRIKE

OR LOCKOUT
 1. Collective Bargaining Deadlock (CBD)
and/or,

 2. Unfair Labor Practice (ULP)

VALID GROUNDS FOR DECLARING

A STRIKE OR LOCKOUT
 The notice shall state, among others, the names and addresses of
the employer and the union involved, the nature of the industry
to which the employer belongs, the number of union members
and of the workers in the bargaining unit, and such other relevant
data as may facilitate the settlement of the dispute, such as a
brief statement or enumeration of all pending labor disputes
involving the same parties.

 In cases of bargaining deadlocks, the notice shall, as far as
practicable, further state the unresolved issues in the bargaining
negotiations and be accompanied by the written proposals
of the union, the counter-proposals of the employer and the
proof of a request for conference to settle the differences.

 In cases of unfair labor practice, the notice shall, as far as
practicable, state the acts complained of and the efforts taken to
resolve the dispute amicably.

CONTENTS OF A NOTICE OF
STRIKE OR LOCKOUT
 Upon receipt of a valid notice of strike or lockout,
the NCMB, through its Conciliator-Mediators,
shall call the parties to a conference the soonest
possible time in order to actively assist them to
explore all possibilities for amicable
settlement. To this end, the Conciliator-Mediator
may suggest/offer proposals as an alternative
avenue for the resolution of their
disagreement/conflict which may not necessarily
bind the parties. In the event of failure in
conciliation/mediation the parties shall be
encouraged to submit their dispute for voluntary
arbitration.
ROLE OF THE NCMB IN CASE A
NOTICE OF STRIKE OR LOCKOUT
IS FILED
 Upon receipt of a valid notice of strike or lockout,
the NCMB, through its Conciliator-Mediators,
shall call the parties to a conference the soonest
possible time in order to actively assist them to
explore all possibilities for amicable
settlement. To this end, the Conciliator-Mediator
may suggest/offer proposals as an alternative
avenue for the resolution of their
disagreement/conflict which may not necessarily
bind the parties. In the event of failure in
conciliation/mediation the parties shall be
encouraged to submit their dispute for voluntary
arbitration.
ROLE OF THE NCMB IN CASE A
NOTICE OF STRIKE OR LOCKOUT
IS FILED
 Any notice which does not conform with
the foregoing requirements shall be
deemed not having been filed.

REQUIREMENT OF THE NOTICE OF STRIKE OR

LOCKOUT HAS NOT BEEN COMPLIED WITH
 STRIKE VOTE - To ensure that the decision
to strike broadly rests with the majority of
the Union members in general and not with
a mere minority, at the same time,
discourage wildcat strikes, union bossism and
even corruption.

 STRIKE VOTE REPORT - To ensure that a

strike vote was indeed taken and in the event
that the report is false, to afford the
members an opportunity to take the
appropriate remedy before it is too late.

PURPOSE OF THE STRIKE VOTE

AND STRIKE VOTE REPORT
 1. Declaring a strike or lockout on grounds involving inter-union and intra-union disputes
or on issues brought to voluntary or compulsory arbitration.

 2. Declaring a strike or lockout without first having bargained collectively or without first
having filed the required notice or without the necessary strike or lockout vote first having
been obtained and reported to the Regional Branch of the NCMB.

 Declaring a strike or lockout in defiance of a cease-and-desist order, or an order for the
striking employees to return to work and for the employer to accept the workers after
assumption of jurisdiction by the President or Secretary of Labor and Employment, or
after certification or submission of the dispute to compulsory or voluntary arbitration, or
during the pendency of a case involving the authorized grounds for the strike or lockout.

 4. Obstructing, impending or interfering with by force, violence, coercion, threats or
intimidation any peaceful picketing by employees during any labor controversy or in the
exercise of their right to self-organization or collective bargaining, or aiding or abetting
such obstruction or interference.

 5. Employing any strike breaker or being employed as a strike-breaker.

PROHIBITED ACTS AND

PRACTICES
 6. No public official or employee, including officers and personnel of the Armed
Forces of the Philippines, of the Philippine National Police, or any 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 strikers.

 Nothing herein shall be interpreted to prevent the aforementioned officials,
employees or peace officers from taking any measure necessary to maintain
peace and order and/or to protect life and property.

 7. Stationary picket and the use of means like placing of objects to constitute
permanent blockade or to effectively close points of entry or exit in company
premises.

 8. Any act of violence, coercion or intimidation by any picketer.

 9. The obstruction of the free ingress to or egress from the employer’s
premises for lawful purposes.

 10. Obstruction of public thoroughfares while engaged in picketing.

PROHIBITED ACTS AND

PRACTICES
 The requirements for a valid strike or lockout are
mandatory in character and non-compliance therewith is
sufficient ground to declare the strike or lockout illegal.

 If a strike is declared illegal, the employer may be
authorized to terminate the employment of union officials
who knowingly participated in the illegal strike and/or any
worker 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 has been terminated as a consequence
thereof may be entitled to re-instatement including
payment of full backwages and other benefits.

LEGAL IMPLICATIONS FOR NON-COMPLIANCE

WITH THE REQUIREMENTS FOR A VALID
STRIKE OR LOCKOUT
1. A strike or lockout may be declared illegal if
any of the requirements for a valid strike or
lockout is not complied with.

2. 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.

3. During a strike or lockout, when either of the

parties commit prohibited acts or practices, the
strike or lockout may be declared illegal.

WHEN MAY A STRIKE OR LOCKOUT

BE DECLARED ILLEGAL
 In general, the Labor Arbiter in the appropriate
Arbitration Branch of the National Labor Relations
Commission has the power to determine
questions involving the legality or the 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 strike
is raised in the dispute over which the Secretary
assumed jurisdiction or in disputes certified by
the Secretary to the Commission for compulsory
arbitration, the same may be resolved by the
Secretary or the Commission, respectively.
JURISDICTION TO DETERMINE
THE LEGALITY OF STRIKE
AND LOCKOUT
 If the issue is voluntary and jointly
submitted by the parties to voluntary
arbitration, the question may be resolved
by the voluntary arbitrator or panel of
voluntary arbitrators.

MAY A VOLUNTARY ARBITRATOR

DETERMINE THE LEGALITY OF A
STRIKE
 Yes. They may be charged before the
appropriate civil and criminal courts.

CAN ANY PERSON PERFORMING ANY

OF THE PROHIBITED ACTIVITIES BE
CHARGED BEFORE THE COURT
 No. An employee who goes on strike is
not deemed to have abandoned his
employment but is merely exercising his
right to self-organization precisely to
protect his rights as an employee and/or
to obtain better working conditions.

IS AN EMPLOYEE WHO PARTICIPATES

IN A LAWFUL STRIKE DEEMED TO
HAVE ABANDONED HIS EMPLOYMENT?
 When a legal strike or lockout is in progress, the code allows
employees to picket. The purpose of picketing is to exert pressure
on the employer by persuading other people not to do work for,
or do business with, the employer. However, a picket line must be
peaceful and cannot be used to forcibly prevent people from
entering an employer’s premises.

 Usually, striking or locked-out employees are only entitled to

picket where they normally perform the work that’s an integral
and substantial part of the employer’s operation and which is
under the control and direction of the employer. Other operations
of the employer may not normally be picketed. For example, if
you operate your business at more than one location, your
striking or locked-out employees are only permitted to picket the
location for which their union is certified and at which they
perform their work for you. They are prohibited from picketing
your other locations if they do not normally perform work at
those locations.

PICKETING
 As an exception to this general rule, picketing may also be
conducted at other sites, with permission from the board, in
circumstances where an employer attempts to have “struck work”
performed at these other sites. In other words, if you move work,
normally performed by striking or locked-out employees, to
another location in order to continue service or production during
the strike/lockout, that location may be subject to picketing.

 Similarly, striking or locked-out employees may be entitled to

picket the place of business of an “ally” employer. The board will
declare another employer to be an ally of the struck employer in
circumstances where the ally assists the employer in a lockout or
in resisting a lawful strike. Ally picketing is restricted to the site
at which the ally performs work for the benefit of the employer
who is directly involved.

PICKETING
 Finally, where more than one employer
carries on business at the same site (referred
to as a “common site”), the board generally
restricts picketing so that it affects only the
employer involved in the labour dispute or
the ally of that employer. This restriction is
relaxed, so that regulated picketing at a
common site can occur and will affect third
parties to some degree, in circumstances
where the union has no other way of
picketing at the workplace of the striking or
locked-out employees.

PICKETING
 FACTS:

 Petitioner’s employees stopped working and gathered in a mass action to

express their grievances regarding wages, thirteenth month pay and hazard
pay. Said employees were all members of the Macajalar Labor Union —
Federation of Free Workers (MLU-FFW) with whom petitioner had an existing
collective bargaining agreement.

 Petitioner was engaged in stevedoring and arrastre services at the port of

Cagayan de Oro. The strike paralyzed operations at said port.

 The strikers filed individual notices of strike (“Kaugalingon nga Declarasyon sa

Pag-Welga”) with the then Ministry of Labor and Employment.

 With the failure of conciliation conferences between petitioner and the strikers,
INPORT filed a complaint before the Labor Arbiter for Illegal Strike with prayer
for a restraining order/preliminary injunction.
 The National Labor Relations Commission issued a temporary restraining order.
Thereafter, majority of the strikers returned to work, leaving herein private
respondents who continued their protest.

Gold City Integrated Port Service,

Inc (INPORT) vs. NLRC
 For not having complied with the formal requirements in Article
264 of the Labor Code, the strike staged by petitioner’s workers
on April 30, 1985 was found by the Labor Arbiter to be
illegal. The workers who participated in the illegal strike did not,
however, lose their employment, since there was no evidence that
they participated in illegal acts. After noting that petitioner
accepted the other striking employees back to work, the Labor
Arbiter held that the private respondents should similarly be
allowed to return to work without having to undergo the required
screening to be undertaken by their union (MLU-FFW).

 As regards the six private respondents who were union officers,

the Labor Arbiter ruled that they could not have possibly been
“duped or tricked” into signing the strike notice for they were
active participants in the conciliation meetings and were thus fully
aware of what was going on. Hence, said union officers should be
accepted back to work after seeking reconsideration from herein
petitioner.

Gold City Integrated Port Service,

Inc (INPORT) vs. NLRC
 The NLRC affirmed with modification the Arbiter’s decision. It held
that the concerted action by the workers was more of a “protest
action” than a strike. Private respondents, including the six union
officers, should also be allowed to work unconditionally to avoid
discrimination. However, in view of the strained relations between
the parties, separation pay was awarded in lieu of reinstatement.

 Upon petitioner’s motion for reconsideration, public respondent

modified the above resolution.

 The Commission ruled that since private respondents were not

actually terminated from service, there was no basis for
reinstatement. However, it awarded six months’ salary as
separation pay or financial assistance in the nature of “equitable
relief.” The award for backwages was also deleted for lack of
factual and legal basis. In lieu of backwages, compensation
equivalent to P1,000.00 was given.

Gold City Integrated Port Service,

Inc (INPORT) vs. NLRC
 ISSUE:
 Whether separation pay and backwages
be awarded by public respondent NLRC to
participants of an illegal strike?

Gold City Integrated Port Service,

Inc (INPORT) vs. NLRC
 RULING:
 Reinstatement and backwages or, if no longer feasible, separation pay, can
only be granted if sufficient bases exist under the law, particularly after a
showing of illegal dismissal. However, while the union members may thus be
entitled under the law to be reinstated or to receive separation pay, their
expulsion from the union in accordance with the collective bargaining
agreement renders the same impossible.

 A strike, considered as the most effective weapon of labor, is defined as any

temporary stoppage of work by the concerted action of employees as a result
of an industrial or labor dispute. A 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 or
not the disputants stand in the proximate relation of employers and
employees.

 Private respondents and their co-workers stopped working and held the mass
action on April 30, 1985 to press for their wages and other benefits. What
transpired then was clearly a strike, for the cessation of work by concerted
action resulted from a labor dispute.

Gold City Integrated Port Service,

Inc (INPORT) vs. NLRC
 The complaint before the Labor Arbiter involved the legality of said strike.
The Arbiter correctly ruled that the strike was illegal for failure to comply
with the requirements of Article 264 (now Article 263) paragraphs (c) and
(f) of the Labor Code.

 The individual notices of strike filed by the workers did not conform to the
notice required by the law to be filed since they were represented by a
union (MLU-FFW) which even had an existing collective bargaining
agreement with INPORT.

 Neither did the striking workers observe the strike vote by secret ballot,
cooling-off period and reporting requirements.
 A 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 their employment
status. An ordinary striking worker cannot be terminated for mere
participation in an illegal strike. There must be proof that he committed
illegal acts during a strike. A union officer, on the other hand, may be
terminated from work when he knowingly participates in an illegal strike,
and like other workers, when he commits an illegal act during a strike.

Gold City Integrated Port Service,

Inc (INPORT) vs. NLRC
 DISPOSITIVE:
 WHEREFORE, from the foregoing premises,
the petition in G.R. No. 103560 (“Gold City
Integrated Port Service Inc. v. National Labor
Relations Commission, et al.”) is GRANTED.
One month salary for each year of service
until 1985 is awarded to private respondents
who were not union officers as separation
pay. The petition in G.R. No. 103599 (“Adelo
Ebuna, et al. v. National Labor Relations
Commission, et al.”) is DISMISSED for lack of
merit.

Gold City Integrated Port Service,

Inc (INPORT) vs. NLRC
 FACTS:

 Ibias (respondent) was employed by petitioner SMC on 24

December 1978 initially as a CRO operator in its Metal Closure
and Lithography Plant. Respondent continuously worked therein
until he advanced as Zamatic operator. He was also an active and
militant member of a labor organization called Ilaw Buklod
Manggagawa (IBM)-SMC Chapter.

 According to SMC’s Policy on Employee Conduct, absences

without permission or AWOPs, which are absences not covered
either by a certification of the plant doctor that the employee was
absent due to sickness or by a duly approved application for leave
of absence filed at least 6 days prior to the intended leave, are
subject to disciplinary action characterized by progressively
increasing weight. The same Policy on Employee Conduct also
punishes falsification of company records or documents with
discharge or termination for the first offense if the offender
himself or somebody else benefits from falsification or would have
benefited if falsification is not found on time.

San Miguel Corporation vs. NLRC

 It appears that per company records, respondent was
AWOP on the following dates in 1997: 2, 4 and 11 January;
26, 28 and 29 April; and 5, 7, 8, 13, 21, 22, 28 and 29
May. For his absences on 2, 4 and 11 January and 28 and
29 April, he was given a written warning dated 9 May 1997
that he had already incurred five (5) AWOPs and that
further absences would be subject to disciplinary action.
For his absences on 28 and 29 April and 7 and 8 May,
respondent was alleged to have falsified his medical
consultation card by stating therein that he was granted
sick leave by the plant clinic on said dates when in truth he
was not.

 After the completion of the investigation, SMC concluded

that respondent committed the offenses of excessive
AWOPs and falsification of company records or documents,
and accordingly dismissed him.

San Miguel Corporation vs. NLRC

 On 30 March 1998, respondent filed a complaint for illegal dismissal
against SMC. The labor arbiter believed that respondent had committed
the absences pointed out by SMC but found the imposition of termination
of employment based on his AWOPs to be disproportionate since SMC
failed to show by clear and convincing evidence that it had strictly
implemented its company policy on absences. It also noted that
termination based on the alleged falsification of company records was
unwarranted in view of SMC’s failure to establish respondent’s guilt.

 The appellate court also held that respondent’s AWOPs did not warrant his
dismissal in view of SMC’s inconsistent implementation of its company
policies. It could not understand why respondent was given a mere
warning for his absences on 28 and 29 April which constituted his 5th and
6th AWOPs, respectively, when these should have merited suspension
under SMC’s policy. According to the appellate court, since respondent
was merely warned, logically said absences were deemed committed for
the first time; thus, it follows that the subject AWOPs did not justify his
dismissal because under SMC’s policy, the 4th to 9th AWOPs are meted
the corresponding penalty only when committed for the second time.

San Miguel Corporation vs. NLRC

 ISSUE:
 WON the Court of Appeals erred in
sustaining the findings of the labor arbiter
and the NLRC and in dismissing SMC’s
claims that respondent was terminated
from service with just cause.

San Miguel Corporation vs. NLRC

 RULING:
 Proof beyond reasonable doubt is not required as a basis for
judgment on the legality of an employer’s dismissal of an employee,
nor even preponderance of evidence for that matter, substantial
evidence being sufficient. In the instant case, while there may be no
denying that respondent’s medical card had falsified entries in it, SMC
was unable to prove, by substantial evidence, that it was respondent
who made the unauthorized entries. Besides, SMC’s (Your) Guide on
Employee Conduct punishes the act of falsification of company
records or documents; it does not punish mere possession of a
falsified document.

 Respondent cannot feign surprise nor ignorance of the earlier AWOPs

he had incurred. He was given a warning for his 2, 4, and 11 January
and 26, 28, and 29 April 1997 AWOPs. In the same warning, he was
informed that he already had six AWOPs for 1997. He admitted that
he was absent on 7 and 8 May 1997. He was also given notices to
explain his AWOPs for the period 26 May to 2 June 1997, which he
received but refused to acknowledge. It does not take a genius to
figure out that as early as June 1997, he had more than nine AWOPs.

San Miguel Corporation vs. NLRC

 In any case, when SMC imposed the penalty of
dismissal for the 12th and 13th AWOPs, it was
acting well within its rights as an employer. An
employer has the prerogative to prescribe
reasonable rules and regulations necessary for
the proper conduct of its business, to provide
certain disciplinary measures in order to
implement said rules and to assure that the
same would be complied with. An employer
enjoys a wide latitude of discretion in the
promulgation of policies, rules and regulations on
work-related activities of the employees.

San Miguel Corporation vs. NLRC