Picketing

1. Concepts

“Picketing” – refers to the right of workers to march to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and displaying of signs, placards, and banners intended to inform the public about the dispute. (No. 27, Rule III, The Revised National Conciliation and Mediation Board Manual of Procedures for Conciliation and Prevention Mediation Cases, 2017 edition, henceforth the “2017 NCMB Manual”)

A picket simply means to march to and from the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association [PILA], supra.)

As applied to a labor dispute, to picket means the stationing of one or more persons to observe and attempt to observe. The purpose of pickets is said to be a means of peaceable persuasion. (Santa Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Phils., Inc., G.R. Nos. 164302-03. 24 January 2007)

Picket is a strike activity separate and different from the actual stoppage of work. (Ibid.)

a. Picket v. Strike

NB: There may be picketing, without necessarily a strike.

2. Right to peaceful picketing

a. Phase of freedom of speech

The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution. 6 If peacefully carried out, it can not be curtailed even in the absence of employer-employee relationship. (PAFLU v. Cloribel, En Banc, G.R. No. L-25878, 28 March 1969)

b. Who may picket

1) May or may not be workers of employer

“It seems now generally agreed that a state cannot either by its common law or by statute prohibit the peaceful picketing of a place of business solely on the ground that the picketing is carried on by persons not employed therein. The United States Supreme Court has held that the constitutional guaranty of free speech is infringed by the judicial policy of a state to forbid peaceful picketing on the ground that it is being conducted by strangers to the employer affected, that is, by persons not in the relation of employer and employee with him. Rules limiting picketing to the occasion of a labor dispute are not offended by the act of a union having a grievance against a manufacturer in picketing a retail establishment in which its products are sold when there is a unity of interest between the manufacturer and the retailer; this is true even when the shopkeeper is the sole person required to run his business. And the right of employees on strike at one plant of an employer to picket another plant of the same employer has been upheld even though some of the employees of the picketed plant as a result refused to work despite a no-strike agreement. Also, a union may picket a retail store selling goods made in a nonunion factory between which and the union there is an industrial dispute, provided there is a unity of interest between the retailer and the manufacturer.” (31 Am. Jur. 752, cited in ALU v. Borromeo, En Banc, G.R. No. L-26461, 27 November 1968)

3. Non-interference of peaceful picketing

a. Limitations

It is settled law that peaceful picketing is included in free speech. There is equally a recognition that it is more than just the expression of view or facts connected with a labor dispute, intended to arouse sympathy for the cause of the workingmen. The intent to persuade is there, of course, but it has a coercive aspect as well and is thus not immune to that extent from restrictions and limitations. (People v. Barba, En Banc, G.R. No. L-27615-16, 30 September 1969)

The right [to picket] is… not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, … courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus, the right may be regulated at the instance of third parties or “innocent bystanders” if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. (PAFLU v. Cloribel, supra.)

In one case decided by this Court, a trial court’s injunction prohibiting the union from blocking the entrance to a feed mill located within the compound of a flour mill with which the union had a dispute. Although sustained on a different ground, no connection was found between the two mills owned by two different corporations other than their being situated in the same premises. It is to be noted that in the instances cited, peaceful picketing has not been totally banned but merely regulated. (Ibid.)

And in one American case, a picket by a labor union in front of a motion picture theater with which the union had a labor dispute was enjoined by the court from being extended in front of the main entrance of the building housing the theater wherein other stores operated by third persons were located. (Ibid.)

PAFLU v. CLORIBEL, En Banc, G.R. No. L-25878 (28 March 1969)

⦁ The present case squarely fits into the foregoing legal setting. Wellington and Galang are mere “innocent bystanders”. They are entitled to seek protection of their rights from the courts and the courts may, accordingly, legally extend the same. Moreover, PAFLU’s right to peacefully picket METBANK is not curtailed by the injunctions issued by respondent judge. The picket is merely regulated to protect the rights of third parties. And the reason for this is not farfetched. If the law fails to afford said protection, men will endeavor to safeguard their rights by their own might, take the law in their own hands, and commit acts which lead to breaches of peace, bloodshed, and ultimately the final subversion of the law. This should not be allowed to happen.

⦁ In Thornhill vs. Alabama, 36 L. Ed. 1143, the United States Supreme Court had occasion to rule on this question:

It is true that by peaceful picketing workingmen communicate their grievances. As a means of communicating the facts of a labor dispute may be a phase of the constitutional right of free utterance. But recognition of peaceful picketing as an exercise of free speech does not imply that the states must be without power to confine the sphere of communication to that directly related to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. To deny to the states the power to draw the line is to write into the constitution the notion that every instance of peaceful picketing — anywhere and under any circumstances — is necessarily a phase of the controversy which provoked the picketing. Such a view of the due process clause would compel the states to allow the disputants in a particular industrial episode to conscript neutrals having no relation to either the dispute or the industry in which it arose.

In forbidding such conscription of neutrals in the circumstances of the case before us, Texas represents the prevailing, and probably the unanimous policy of the states. 13 We hold that the constitution does not forbid Texas to draw the line which has been drawn here. To hold otherwise would be to transmute vital constitution liberties into doctrinal dogma. We must be mindful that “the rights of employers and employees to conduct their economic affairs and to compete with others for a share in the products of industry are subject to modification or qualification in the interests of the society in which they exist. This is but an instance of the power of the State to set the limits of permissible contest open to industrial combatants.” Thornhill v. Alabama, 310 U.S. 88, 103, 84 L. ed. 1093, 1102, 1103, 60 S. Ct. 736. [315 U.S. 722, at 727-728, 86 L. ed. 1143, at 1147-1148, (1942)]…

3. Prohibited acts

Well-settled is the rule that even if the strike were to be declared valid because its objective or purpose is lawful, the strike may still be declared invalid where the means employed are illegal. Among such limits are the prohibited activities under Article 264 of the Labor Code, particularly paragraph (e), which states that no person engaged in picketing shall:

1) commit any act of violence, coercion, or intimidation or

2) obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or

3) obstruct public thoroughfares. (A. Soriano Aviation v. EAASA, G.R. No. 166879, 14 August 2009)

Protected picketing does not extend to blocking ingress to and egress from the company premises. That the picket was moving, was peaceful and was not attended by actual violence may not free it from taints of illegality if the picket effectively blocked entry to and exit from the company premises. (PHIMCO Industries Inc. v. PILA, G.R. No. 170830, 11 August 2010)

The following acts have been held to be prohibited activities:

1) Where the strikers shouted slanderous and scurrilous words against the owners of the vessels;

2) Where the strikers used unnecessary and obscene language or epithets to prevent other laborers to go to work, and circulated libelous statements against the employer which show actual malice;

3) Where the protestors used abusive and threatening language towards the patrons of a place of business or against co-employees, going beyond the mere attempt to persuade customers to withdraw their patronage;

4) Where the strikers formed a human cordon and blocked all the ways and approaches to the launches and vessels of the vicinity of the workplace and perpetrated acts of violence and coercion to prevent work from being performed; and

5) Where the strikers shook their fists and threatened non-striking employees with bodily harm if they persisted to proceed to the workplace. (A. Soriano Aviation v. EAASA, supra.)

Permissible activities of the picketing workers do not include obstruction of access of customers. (Ibid.)

a. Violence, coercion or intimidation

PHIMCO INDUSTRIES INC. v. PILA, G.R. No. 170830, 11 August 2010

⦁ Article 264(e) of the Labor Code tells us that picketing carried on with violence, coercion or intimidation is unlawful. According to American jurisprudence, what constitutes unlawful intimidation depends on the totality of the circumstances. Force threatened is the equivalent of force exercised. There may be unlawful intimidation without direct threats or overt acts of violence. Words or acts which are calculated and intended to cause an ordinary person to fear an injury to his person, business or property are equivalent to threats.

⦁ The manner in which the respondent union officers and members conducted the picket in the present case had created such an intimidating atmosphere that non-striking employees and even company vehicles did not dare cross the picket line, even with police intervention. Those who dared cross the picket line were stopped. The compulsory arbitration hearings bear this out.

⦁ [M. Pedro], a PILA officer, testified, on July 30, 1997, that a group of PHIMCO managers led by Cinco, together with several monthly-paid employees, tried to enter the company premises on May 27, 1995 with police escort; even then, the picketers did not allow them to enter. Leonida Catalan, another union officer, testified that she and the other picketers did not give way despite the instruction of Police Major de los Reyes to the picketers to allow the group to enter the company premises. (To be sure, police intervention and participation are, as a rule, prohibited acts in a strike, but we note this intervention solely as indicators of how far the union and its members have gone to block ingress to and egress from the company premises.)

⦁ Further, PHIMCO employee [R. Eva] testified that on May 22, 1995, a company coaster or bus attempted to enter the PHIMCO compound but it was refused entry by the “moving picket.” Cinco, the company personnel manager, also testified that on May 27, 1995, when the NLRC TRO was in force, he and other employees tried to enter the PHIMCO compound, but they were not allowed entry; on May 29, 1995, Cinco was with the PHIMCO production manager in a pick-up and they tried to enter the company compound but, again, they were not allowed by the strikers. Another employee, [J. Aguilar], when asked how the strikers blocked the ingress of the company, replied that the strikers “hold around, joining hands, moving picket” and, because of the moving picket, no employee or vehicle could come in and go out of the premises.

⦁ The evidence adduced in the present case cannot be ignored. On balance, it supports the company’s submission that the respondent PILA officers and members committed acts during the strike prohibited under Article 264(e) of the Labor Code. The testimonies of non-striking employees, who were prevented from gaining entry into the company premises, and confirmed no less by two officers of the union, are on record.

⦁ The evidence adduced in the present case cannot be ignored. On balance, it supports the company’s submission that the respondent PILA officers and members committed acts during the strike prohibited under Article 264(e) of the Labor Code. The testimonies of non-striking employees, who were prevented from gaining entry into the company premises, and confirmed no less by two officers of the union, are on record.

⦁ Despite all these clear pieces of evidence of illegal obstruction, the NLRC looked the other way and chose not to see the unmistakable violations of the law on strikes by the union and its respondent officers and members. Needless to say, while the law protects the rights of the laborer, it authorizes neither the oppression nor the destruction of the employer. For grossly ignoring the evidence before it, the NLRC committed grave abuse of discretion; for supporting these gross NLRC errors, the CA committed its own reversible error.

b. Obstruction: Blocking of entry (ingress) and exit (egress)

PHIMCO INDUSTRIES INC. v. PILA, G.R. No. 170830, 11 August 2010

⦁ The NLRC resolution itself noted the above testimonial evidence, “all building up a scenario that the moving picket put up by [the] respondents obstructed the ingress to and egress from the company premises[,]” yet it ignored the clear import of the testimonies as to the true nature of the picket. Contrary to the NLRC characterization that it was a “peaceful moving picket,” it stood, in fact, as an obstruction to the company’s points of ingress and egress.

⦁ Significantly, the testimonies adduced were validated by the photographs taken of the strike area, capturing the strike in its various stages and showing how the strikers actually conducted the picket. While the picket was moving, it was maintained so close to the company gates that it virtually constituted an obstruction, especially when the strikers joined hands, as described by Aguilar, or were moving in circles, hand-to-shoulder, as shown by the photographs, that, for all intents and purposes, blocked the free ingress to and egress from the company premises. In fact, on closer examination, it could be seen that the respondents were conducting the picket right at the company gates.

⦁ The obstructive nature of the picket was aggravated by the placement of benches, with strikers standing on top, directly in front of the open wing of the company gates, clearly obstructing the entry and exit points of the company compound.

⦁ With a virtual human blockade and real physical obstructions (benches and makeshift structures both outside and inside the gates), it was pure conjecture on the part of the NLRC to say that “[t]he non-strikers and their vehicles were x x x free to get in and out of the company compound undisturbed by the picket line.” Notably, aside from non-strikers who wished to report for work, company vehicles likewise could not enter and get out of the factory because of the picket and the physical obstructions the respondents installed. The blockade went to the point of causing the build up of traffic in the immediate vicinity of the strike area, as shown by photographs. This, by itself, renders the picket a prohibited activity. Pickets may not aggressively interfere with the right of peaceful ingress to and egress from the employer’s shop or obstruct public thoroughfares; picketing is not peaceful where the sidewalk or entrance to a place of business is obstructed by picketers parading around in a circle or lying on the sidewalk.

⦁ What the records reveal belies the NLRC observation that “the evidence x x x tends to show that what respondents actually did was walking or patrolling to and from within the company vicinity and by word of mouth, banner or placard, informing the public concerning the dispute.”

⦁ The “peaceful moving picket” that the NLRC noted, influenced apparently by the certifications (Mayor delos Reyes, Fr. Adeviso, Fr. Fausto and Barangay Secretary Gesmundo presented in evidence by the respondents, was “peaceful” only because of the absence of violence during the strike, but the obstruction of the entry and exit points of the company premises caused by the respondents’ picket was by no means a “petty blocking act” or an “insignificant obstructive act.”

⦁ As we have stated, while the picket was moving, the movement was in circles, very close to the gates, with the strikers in a hand-to-shoulder formation without a break in their ranks, thus preventing non-striking workers and vehicles from coming in and getting out. Supported by actual blocking benches and obstructions, what the union demonstrated was a very persuasive and quietly intimidating strategy whose chief aim was to paralyze the operations of the company, not solely by the work stoppage of the participating workers, but by excluding the company officials and non-striking employees from access to and exit from the company premises. No doubt, the strike caused the company operations considerable damage, as the NLRC itself recognized when it ruled out the reinstatement of the dismissed strikers.

c. Obstruction: Public thoroughfares

3. Liability for illegal picketing

a. Union officers

The effects of illegal strikes, outlined in Article 264 of the Labor Code, make a distinction between participating workers and union officers. The services of an ordinary striking worker cannot be terminated for mere participation in an illegal strike; proof must be adduced showing that he or she committed illegal acts during the strike. The services of a participating union officer, on the other hand, may be terminated, not only when he actually commits an illegal act during a strike, but also if he knowingly participates in an illegal strike. (PHIMCO Industries, Inc. v. PILA, G.R. No. 170830, 11 August 2010)

In all cases, the striker must be identified. But proof beyond reasonable doubt is not required; substantial evidence, available under the attendant circumstances, suffices to justify the imposition of the penalty of dismissal on participating workers and union officers as above described. (Ibid.)

PHIMCO INDUSTRIES INC. v. PILA, G.R. No. 170830, 11 August 2010

⦁ In the present case, respondents [union officers] stand to be dismissed as participating union officers, pursuant to Article [279](a), paragraph 3, of the Labor Code. This provision imposes the penalty of dismissal on “any union officer who knowingly participates in an illegal strike.” The law grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment.

⦁ PHIMCO was able to individually identify the participating union members thru the affidavits of PHIMCO employees [M. Panis] and [R. Ortiz], and Personnel Manager [Francis. Cinco], and the photographs of [J. Aguilar]. Identified were respondents… union members who actively participated in the strike by blocking the ingress to and egress from the company premises and preventing the passage of non-striking employees. For participating in illegally blocking ingress to and egress from company premises, these union members stand to be dismissed for their illegal acts in the conduct of the union’s strike.

Thus, for union members, what is required is that they knowing participated in the commission of illegal acts during the strike for there to be sufficient ground for termination of employment. For union officers, however, it suffices that they knowingly participated in an illegal strike. (Bigg’s Inc. v. Boncacas, G.R. Nos. 200847 and 200636, 06 March 2019)

b. Union members

For union members, what is required is that they knowingly participated in the commission of illegal acts during the strike for there to be sufficient ground for termination of employment. For union officers, however, it suffices that they knowingly participated in an illegal strike. (Bigg’s Inc. v. Boncacas, G.R. Nos. 200847 and 200636, 06 March 2019)

References

⦁ Book V, Presidential Decree No. 442, a.k.a. Labor Code of the Philippines

⦁ Book V, Omnibus Rules Implementing the Labor Code

⦁ DOLE Department Order No. 40, Series of 2003

⦁ DOLE Department Order No. 40-A-I, Series of 2003

⦁ DOLE Department Order No. 40-B, Series of 2003

⦁ DOLE Department Order No. 40-C, Series of 2004

⦁ DOLE Department Order No. 40-D, Series of 2005

⦁ DOLE Department Order No. 40-F-3, Series of 2008

⦁ DOLE Department Order No. 40-G-03, Series of 2010

⦁ DOLE Department Order No. 40-I, Series of 2015

⦁ DOLE Department Order No. 15, Series of 2015

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/Updated: February 23, 2023