1. Economic strike – used to secure the economic demands such as higher wages and better working conditions for the workers
2. ULP strike – protest against ULP of management
Q: Distinguish between an economic strike and an ULP strike.
A:
ECONOMIC STRIKE ULP STRIKE As to nature
Voluntary strike because the Ee will
declare a strike to compel management to grant its demands
Involuntary strike; the LO is forced to go on strike because of the ULP committed against them by the Er. It is an act of self‐defense since the Ee’s are
being pushed to the wall and their only remedy is to stage a
strike Who will initiate The CB agent of
the appropriate bargaining unit can
declare an economic strike
Either the CB agent or the LLO in behalf of its members
As to the cooling‐off period 30 days from
notice of strike before the intended date of
actual strike subject to the 7‐
day strike ban
15 days from the filing of the notice of strike
As to the exception to the cooling‐off period No exception –
mandatory Note: notice of strike and strike
vote may be dispensed with;
they may strike immediately
The cooling‐off period may be dispensed with, and the union may take immediate action in
case of dismissal from employment of their officers duly elected in accordance with the union’s constitution and by‐
laws, which may constitute union busting where the
existence of the union is threatened. It must still observe
the mandatory 7‐day strike ban period before it can stage a
valid strike
Q: What are the different forms of strike?
A:
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, G.R. No. L‐
17038, July 31, 1964)
4. ULP Strike‐one called to protest against the employer’s acts of unfair practice enumerated in Article 248 of the Labor Code, as amended, including gross violation of the collective bargaining agreement (CBA) and union busting.
5. Slow Down Strike‐one staged without the workers quitting their work but by 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.
b.Who may declare a strike or lockout Q: Who may declare a strike or lockout?
A:
1. 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.
2. 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. (Section 2, Rule XIII Book V,
Omnibus Rules Implementing The Labor Code, as amended).
c.Requisites for a valid strike/ lockout
Q: What are the requisites of a lawful strike / lockout?
A: The requirements for a valid strike or lockout are as follows:
1. It must be based on a valid and factual ground;
2. 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.
3. 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.
4. 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.
5. 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.
6. 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. (NSFW vs. Ovejera, G.R. No.
59743, May 31, 1982)
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.
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 arbitration, or submission to compulsory or voluntary arbitration nor a subject of a pending case involving the same grounds for the strike or lockout.
Q: What are the valid grounds for declaring a strike or lockout?
A: The law recognizes 2 grounds for the valid exercise of the right to strike or lockout, namely:
1. Collective Bargaining Deadlock (CBD)‐
economic;
2. Unfair Labor Practice (ULP)‐political
Note: It is possible to change an economic strike into a ULP strike. (Consolidated Labor Ass’n of the Phils. v.
Marsman and Co., G.R. No. L‐17038, July 31, 1964)
Violations of CBA must be gross to be considered as ULP.
Q: What is conversion doctrine?
A: It is when a strike starts as economic and later, as it progresses, it becomes a ULP, or vice versa.
Q: Can a strike be converted into a lockout?
A: No, a strike cannot be converted into a pure and simple lockout by the mere expedient of filing before the trial court a notice of offer to return to work during the pendency of the labor dispute between the union and the employer. (Rizal Cement Workers Union v. CIR, G.R. No. L‐18442, Nov. 30, 1962).
Q: Give examples of strike and explain their legality.
A:
1. Sit‐down strike – Characterized by a temporary work stoppage of workers who seize or occupy property of the Er or refuse to vacate the premises of the Er.
Illegal – Amounts to a criminal act because of the Ee’s trespass on the premises of the Er 2. Wildcat strike – A work stoppage that
violates the labor contract and is not authorized by the union.
Illegal –Because it fails to comply with certain req’ts of the law, to wit: notice of strike, vote and report on strike vote
3. Slowdown – Strike on an installment plan;
an activity by which workers, without complete stoppage of work, retard production or their performance of duties and functions to compel management to grant their demands
Illegal – Ees work on their own terms; while the Ees continue to work and remain in their positions and accept wages paid to them, they at the same time select what part on their allotted tasks they care to perform on their own volition or refuse openly or secretly
4. Sympathetic strike – Work stoppages of workers of one company to make common cause with other strikers or other companies without demands or grievances of their own against the Er
Illegal – There is no labor dispute between the workers who are joining the strikers and the latter’s Er
5. Secondary strike – Work stoppages of workers of one company to exert pressure on their Er so that the latter will in turn bring pressure upon the Er of another company with whom another union has a labor dispute
Illegal – There is no labor dispute involved.
Note: A strike can validly take place only in the presence of and in relation to a labor dispute between Er and Ee.
6. Welga ng bayan (Cause Oriented Strikes) – A political strike and therefore there is neither a bargaining deadlock nor any ULP
Illegal – It is a political rally
7. Quickie strikes‐ brief and unannounced temporary work stoppage
Illegal‐ failure to comply with notice requirements and etc.
Q: Two unions, joined a welga ng bayan. The unions, led by their officers, staged a work stoppage which lasted for several days, prompting FILFLEX and BIFLEX Corporations to file a petition to declare the work stoppage illegal for failure to comply with procedural req’ts. Whether the Ees committed an illegal work stoppage?
A: Yes. Ees, who have no labor dispute with their Er but who, on a day they are scheduled to work, refuse to work and instead join a welga ng bayan commit an illegal work stoppage. There being no showing that the two unions notified the corporations of their intention, or that they were allowed by the corporations, to join the welga ng bayan, their work stoppage is beyond legal protection.(BIFLEX Phils. Inc. Labor Union (NAFLU) vs. FILFLEX Industrial and Manufacturing Corp., G.R.
No. 155679, Dec. 19, 2006)
Q: What are the tests in determining the legality of strike?
A: The following must concur:
1. Purpose test – the strike must be due to either bargaining deadlock and/or the ULP
2. Compliance with the procedural and substantive req’ts of the law. (See requisites of a valid strike)
3. Means employed test – It states that a strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which is widespread, pervasive and adopted as a matter of policy and not mere violence which is sporadic which normally occur in a strike area.
Q: What are the instances when a strike or lockout cannot be declared?
A: Non‐strikable issues:
1. CBA violations not gross in character 2. Grounds involving inter/intra‐union
disputes
3. When there is no notice of strike or lockout or without the strike or lockout vote
4. After assumption of jurisdiction by the SLE
5. After certification or submission of dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for strike or lockout
6. Labor standards cases such as wage orders. (Guidelines governing Labor Relations [Oct. 19, 1987] issued by Sec.
Drilon. See also Art. 261, LC)
Q: What are the procedural and substantive requisites before a strike may be declared?
A:
1. Notice of strike – filed with the NCMB taking into consideration the cooling‐off period
Note: The failure of the union to serve the company a copy of the notice of strike is a clear violation of Section 3, Rule XXII, Book V of the Rules Implementing the LC. The Constitutional precepts of due process mandate that the other party be notified of the adverse action of the opposing party.
(Filipino Pipe and Foundry Corp. v. NLRC, G.R. No. 115180, Nov.r 16, 1999)
2. 30/15 day Cooling‐off period before the intended date of actual strike – notice of strike is filed with the NCMB taking into consideration the cooling‐off period, at least:
a. 30 days before the intended strike for bargaining deadlocks;
b. 15 days before the intended strike for ULP
3. Strike vote
a. The decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned.
b. It must be obtained by secret ballot through meetings or referenda called for the purpose.
c. Its purpose is to ensure that the intended strike is a majority decision.
The report on the strike vote must be submitted to DOLE at least 7 days before the intended strike subject to the cooling‐off period.
d. The regional branch may supervise the conduct of the secret balloting at
its own initiative or upon request of any party.
4. Furnish the regional branch of the NCMB with a notice to conduct a strike vote, at least 24‐hours before the meeting for such purpose (Sec. 10, Rule XXII of the Omnibus Rules of the NLRC).
5. 7‐Day strike ban – a 7‐day waiting period before the date of the purported strike (within which the union intending to conduct a strike must at least submit a report to DOLE as to the result of the strike vote)
Note: To give DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members in addition to the cooling‐off period before the actual strike. (Lapanday Workers’ Union, et.al. v. NLRC, G.R. Nos.
95494‐97, Sep. 7, 1995)
Q: What is a cooling‐off period?
A: It is the period of time given the NCMB to mediate and conciliate the parties. It is the span of time allotted by law for parties to settle their disputes in a peaceful manner before staging a strike or lockout.
Note: Cooling‐off and waiting period may be done simultaneously.
Q: What is the effect of non‐compliance with the requisites of a strike?
A: The strike may be declared illegal.
Q: What is the purpose of giving notice of the conduct of a strike vote to the NCMB at least 24 hours before the meeting for the said purpose?
A:
1. Inform the NCMB of the intent of the union to conduct a strike vote;
2. Give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent any acts of violence and or irregularities;
3. Ample time to prepare for the deployment of the requisite personnel.
(Capitol Medical Center v. NLRC, G.R. No.
147080, April 26, 2005)
Q: Is a no strike/lockout clause legal?
A: Yes, but it is applicable only to economic strikes, not ULP strikes. As a provision in the CBA, it is a valid stipulation although the clause may be invoked by an employer (Er) only when the strike is economic in nature or one which is conducted to force wage or other concessions from the Er that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on ULP. (Panay Electric Co. v. NLRC, G.R.
No. 102672, Oct. 4, 1995; Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos, G.R. No.
113907, Feb. 28, 2000)
Q: What is a preventive mediation case?
A: It involves labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB. (Sec. 1 [mm], Rule I, Book V, IRR)
Note: The regional branch may treat the notice as preventive mediation case upon agreement of the parties.
Q: What are the contents of the notice of strike or lockout?
A:
1. Name and addresses of Er 2. Union involved
3. Nature of the industry to which the Er belongs
4. Number of union members 5. Workers in the bargaining unit 6. Other relevant date
7. In case of bargaining deadlocks:
unresolved issues, written proposals of the union, counter‐proposals of the Er and proof of request for conference to settle differences
8. In case of ULP: The acts complained of, and the efforts taken to resolve the dispute
Note: NCMB shall inform the concerned party in case notice does not conform with the req’ts.
Q: What action will the board take on the notice of strike of strike or lockout?
A:
1. Upon receipt of notice, the regional branch of the Board shall exert all efforts at mediation and conciliation to enable the parties to settle the dispute amicably.
It shall also encourage the parties to submit the dispute to voluntary
2. The regional branch of the NCMB may, upon agreement of the parties, treat a notice as a preventive mediation case.
3. During the proceedings, the parties shall not do any act which may disrupt or impede the early settlement of the dispute. They are obliged, as part of their duty to bargain collectively in good faith and to participate fully and promptly in conciliation meetings called by the regional branch of the NCMB.
4. A notice, upon agreement of the parties, may be referred to alternative modes of dispute resolution, including voluntary arbitration.
Q: Was the strike held by the union legal based on the fact that the notice of strike only contained general allegations of ULP?
A: No. Rule XIII Sec. 4 Book V of the Implementing Rules of the LC provides: In cases of ULP, the notice of strike shall as far as practicable, state the acts complained of and the efforts to resolve the dispute amicably. (Tiu v. NLRC, G.R. No. 123276, Aug. 18, 1997)
Q: NFSW, the bargaining agent of Central Azucarera de la Carlota (CAC) rank and file employees, filed a notice of strike based on non‐
payment of the 13th month pay and 6 days thereafter they held the strike. A day after the commencement of the strike, a report of the strike‐vote was filed by NFSW with MOLE. CAC filed a petition to declare the strike illegal due to non‐compliance with the 15‐day cooling of period and the strike was held before the lapse of 7 days from the submission to the MOLE of the result of the strike vote. Was the strike held by NFSW legal?
A: No. The cooling‐off period in Art. 264(c) and the 7‐day strike ban after the strike‐vote report prescribed in Art. 264 (f) were meant to be mandatory. The law provides that “the labor union may strike” should the dispute “remain unsettled until the lapse of the requisite number of days from the filing of the notice”, this clearly implies that the union may not strike before the lapse of the cooling‐off period. The cooling‐off period is for the Ministry of Labor and Employment to exert all efforts at mediation and conciliation to effect a voluntary settlement.
The mandatory character of the 7‐day strike ban is manifest in the provision that “in every case” the union shall furnish the MOLE with the results of the voting “at least 7 days before the intended strike.”
This period is to give time to verify that a strike vote
was actually held. (NFSW v. Ovejera, G.R. No. L‐
59743, May 31, 1982)
Q: Fil Transit Ees Union filed a notice of strike with the BLR because of alleged ULP of the company.
Because of failure to reach an agreement the union went on strike. Several employees (Ees) were dismissed because of the strike. The union filed another notice of strike alleging ULP, massive dismissal of officers and members, coercion of Ees and violation of workers rights to self‐
organization. The Ministry of Labor and Employment, after assuming jurisdiction over the dispute, ordered all striking Ees including those who were dismissed to return to work. The company however countered that no strike vote had been obtained before the strike was called and the result of the strike vote was not reported to Ministry of Labor and Employment. Was the strike held by the union illegal for failure to hold a strike vote?
A: Yes, there is no evidence to show that a strike vote had in fact been taken before a strike was called. Even if there was a strike vote held, the strike called by the union was illegal because of
A: Yes, there is no evidence to show that a strike vote had in fact been taken before a strike was called. Even if there was a strike vote held, the strike called by the union was illegal because of