Book V Rule XXII Sec. 8:
Q. Is the filing of a petition with the Labor Arbiter to declare a strike illegal a condition
sine qua non for the valid termination of employees who commit illegal acts in the course of such strike?
A. No. The use of unlawful means in the course of a strike renders the strike illegal. Pursuant to the principle of conclusiveness of judgment, the said strike was ipso facto illegal. The filing of a petition to declare the strike illegal was thus unnecessary
Santa Rosa Coca-Cola Plant Employees Union v.
Coca-Cola Bottlers Phils., Inc., 2007)
1) The law grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment.
2) It possesses the right and prerogative to terminate the union officers from service Stamford Marketing Corp. v. Julian (2004):
1) Article 264 of the Labor Code, in providing for the consequences of an illegal strike, makes a distinction between union officers and members who participated thereon.
2) Thus, knowingly participating in an illegal strike is a valid ground for termination from employment of a union officer.
3) The law, however, treats differently mere union members.
4) Mere participation in an illegal strike is not a sufficient ground for termination of the services of the union members.
5) The Labor Code protects an ordinary, rank-and-file union member who participated in such a strike from losing his job, provided that he did not commit an illegal act during the strike. Thus, absent any clear, substantial and convincing proof of illegal acts committed during an illegal strike, an ordinary striking worker or employee may not be terminated from work.
6) With respect to union officers, however, there is no dispute they could be dismissed for participating in an illegal strike.
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7) Union officers are duty-bound to guide their members to respect the law.
8) Nonetheless, as in other termination cases, union officers must be given the required notices for terminating an employment, i.e., notice of hearing to enable them to present their side, and notice of termination, should their explanation prove unsatisfactory.
9) Nothing in Article 264 of the Labor Code authorizes an immediate dismissal of a union officer for participating in an illegal strike.
10) The act of dismissal is not intended to happen ipso facto but rather as an option that can be exercised by the employer and after compliance with the notice requirements for terminating an employee.
Toyota Motor Phils. Corp. Workers Association [TMPCWA], 2007)
It is necessary for the company to adduce proof of the participation of the striking employees in the commission of illegal acts during the strikes.
Philippine Diamond Hotel and Resort, Inc. [Manila Diamond Hotel] v. Manila Diamond Hotel
Employees Union, 2006
1) Union members who participated in an illegal strike
2) but were not identified to have committed illegal acts
3) are entitled to be reinstated to their former positions but without backwages.
(iii)Effect of assumption/certification order
Art. 264.
1) No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister
2) or after certification or submission of the dispute to compulsory or voluntary arbitration
3) or during the pendency of cases involving the same grounds for the strike or lockout.
Grand Boulevard Hotel v Grand Labor Organization, (2003):
1) A strike that is held despite the issuance by the SOLE of an assumption or certification order, becomes a prohibited activity pursuant to Article 264
2) As the Court ruled in Union of Filipro Employees v. Nestle Philippines, Inc. (1990), under Article 264(a) of the said code, once an assumption certification order is issued by the SOLE, strikes are enjoined or if one has already taken place, all strikers shall immediately return to work.
Art. 263 (g):
REQUISITES FOR
ASSUMPTION/CERTIFICATION OF SOLE:
1) Labor dispute causing or likely to cause a strike or lockout
2) In an industry indispensable to the national interest.
OPTIONS OF THE SOLE:
1) Assume jurisdiction over the dispute and decide it, or
2) Certify the dispute to the NLRC for compulsory arbitration.
EFFECT OF ASSUMPTION OR CERTIFICATION:
1) Automatically enjoin the intended or impending strike or lockout as specified in the assumption or certification order.
2) If a strike or lockout has already taken place at the time of assumption or certification—
a) all striking or locked out employees shall immediately return to work, and
b) the employer shall readmit all workers under the same terms and conditions prevailing before the strike or lockout.
3) The SOLE may seek the assistance of law enforcement agencies to ensure the compliance with this provision as well as with such orders as he may issue to enforce the same.
Philcom Employees Union v. Philippine Global Communications and Philcom Corporation, (2006):
1) The powers granted to the Secretary under Article 263(g) have been characterized as an exercise of the police power of the State.
2) When the Secretary exercises these powers, he is granted “great breadth of discretion” to find a solution to a labor dispute.
3) The most obvious of these powers is the automatic enjoining of an impending strike or lockout or its lifting if one has already taken place.
4) A return-to-work order imposes a duty that must be discharged more than it confers a right that may be waived.
5) While the workers may choose not to obey, they do so at the risk of severing their relationship with their employer.
Telefunken Semiconductors Employees Union v.
Court of Appeals (1997):
1) The moment the Secretary of Labor assumes jurisdiction over a labor dispute in an industry indispensable to national interest, 2) such assumption shall have the effect of
automatically enjoining the intended or impending strike.
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3) It was not even necessary for the Secretary of Labor to issue another order directing a return to work.
4) The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return-to-work order, even if the directive to return to work is not expressly stated in the assumption order
c) Employment of strike breakers Art. 264:
c. No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker.
Art. 212(r): "Strike-breaker"
a) Means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation
b) any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining.
d) Improved offer balloting and strikes
Art. 265: Improved offer balloting Strikes:
1) In an effort to settle a strike, the DOLE shall conduct a referendum by secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.
Lockouts:
2) In case of a lockout, the DOLE shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.
B. Picketing
1. Definition, nature, purpose of picket line
NCMB Manual of Procedures for Conciliation and Preventive Mediation Cases.
Sec. 1: Definition of Terms
Picketing – the right of workers to peacefully march to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and display of signs, placards and banners intended to inform the public about the dispute.
Security Bank Employees Union v. Security Bank and Trust Co. (1968):
1) Picketing, like other freedom of expression in general, has limits.
2) To the extent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech.
3) Equally so, there can be no indiscriminate ban on the freedom to disseminate the facts of a labor dispute and to appeal for public sympathy, which is the aim of peaceful picketing, without a transgression of the Constitution,
4) sufficient to oust a court of jurisdiction, even on the assumption that it was originally possessed of such a competence.
2. Picketing and libel laws PCIB V. Philnabank Employees (1981):
There is a unique aspect to this action for libel against the Philippine National Bank Employees' Association. It was filed by plaintiff PCIB as a result of placards and signboards along the PNB building in Escolta, Manila, containing the following:
"PCIB BAD ACCOUNTS TRANSFERRED TO PNB-NIDC?"
There was a labor controversy resulting in a strike, fortunately lasting only for one day.
The labor union made use of its constitutional right to picket.
From the time of Mortera vs. CIR, a 1947 decision this Court has been committed to the view that' peaceful picketing is part of the freedom of speech guarantee of the Constitution. The latest case in point where such a principle was reaffirmed expressly is Associated Labor Union v. Gomez, a 1980 decision.
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There is no mention of the other placards but it is not unlikely that to bolster its claim, mention was likewise made and in bold letters at that of such alleged failing of its management. That was the aim and intent as found by the lower court. That could not very well be disputed by plaintiff-appellant. Unfortunately, the offending imputation, but in the form of a question, was included. It was due to a former official of plaintiff appellant's bank who was thereafter named as President of the Philippine National Bank. Should there be an automatic attitude of condemnation for such incident?
If the realistic observation of Justice Frankfurter in Milk Wagon Drivers Union of Chicago v. Meadowmoor Dairies be heeded that labor disputes give rise to strong emotional response, then the decision reached by the lower court becomes even more acceptable.
It is a fact of industrial life, both in the Philippines as in the United States, that in the continuing confrontation between labor and management, it is far from likely that the language employed would be both courteous and polite. Such being the case, there is no affront either to reason or to the law in the complaint for libel being dismissed. In placing reliance on the constitutional right of freedom of expression, this Court once again makes manifest its adherence to the principle first announced by Justice Malcolm as ponente in the leading case of United States v.
Bustos.
In no uncertain terms, it made clear that the judiciary, in deciding suits for libel, must ascertain whether or not the alleged offending words may be embraced by the guarantees of free speech and free press. It cannot be too often said that Bustos was promulgated as far back as March 8, 1918.
3. Curtailment
Free Telephone Workers Union v. PLDT Co.
(1982):
1) Peaceful picketing cannot be restrained because the same is part of the freedom of speech.
2) However, petitioner fails to realize that the questioned July 16, 1965 order of the Court of Industrial Relations did not refer to peaceful picketing.
3) In Mortera (supra), where the therein questioned order partly declared that ". . .
picketing under any guise and form is hereby prohibited . . .,"
4) this Court ruled that the "order of the Court of Industrial Relations prohibiting picketing must be understood to refer only to illegal picketing, that is, picketing through the use of illegal means.
5) In this case, the questioned restraining order should also be taken as limited to the lifting of the picket lines which constituted illegal picketing
6) especially so because it expressly stated that the petitioner union and its officers, agents or symphatizers "are hereby directed to call off the strike declared on July 17, 1965, and to lift the picket lines established in and around the premises of respondent company's various offices and installations xxx
7) The persons manning the picket lines in these places are hereby enjoined from impeding and interfering with implementation of this Order as well as from interfering in any manner with the operations of respondent.
4. Regulation/restrictions, innocent third party rule and liabilities Liwayway Publishing Co. v. Permanent Concrete Workers Union (1981):