“Strike” – means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. (Article 219[o], P.D. 442, Labor Code)
To strike is to withhold or to stop work by the concerted action of employees as a result of an industrial or labor dispute. The work stoppage may be accompanied by picketing by the striking employees outside of the company compound. While a strike focuses on stoppage of work, picketing focuses on publicizing the labor dispute and its incidents to inform the public of what is happening in the company struck against. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association [PILA], G.R. No. 170830, 11 August 2010)
A strike is the most powerful weapon of workers in their struggle with management in the course of setting their terms and conditions of employment. Because it is premised on the concept of economic war between labor and management, it is a weapon that can either breathe life to or destroy the union and its members, and one that must also necessarily affect management and its members. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association [PILA], G.R. No. 170830, 11 August 2010)
“Strike-breaker” – means any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or in the exercise of the right of self-organization or collective bargaining. (Article 219[r], Ibid.)
“Strike area” – means the establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment. (Article 219[s], Ibid.)
“Notice of Strike” – refers to the notification filed by a registered labor union with the appropriate Regional Branch informing the latter of its intention to go on strike due to alleged commission by the employer of unfair labor practice act/s or a deadlock in collective bargaining negotiations. (No. 26, Rule III, 2017 Revised NCMB Manual of Procedures for Conciliation and Prevention Mediation Cases)
“Sympathetic strike” – refers to one where the striking employees have no demands or grievances of their own, but they strike for the purpose of directly or indirectly aiding others, without direct relation to the advancement of the interest of the strikers. (G & S Transport Corporation v. Infante, G.R. No. 160303, 13 September 2007)
“Wildcat strike” – refers to a strike by certain union members without the authorization of the union.
a. Right to concerted activities
Among the rights guaranteed to employees by the Labor Code is that of engaging in concerted activities in order to attain their legitimate objectives. Article 263 of the Labor Code, as amended, declares that in line with “the policy of the State to encourage free trade unionism and free collective bargaining… (w)orkers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection.” A similar right to engage in concerted activities for mutual benefit and protection is tacitly and traditionally recognized in respect of employers.” (Ilaw at Buklod ng Manggagawa v. NLRC, San Miguel Corporation, G.R. No. 91980, 27 June 1991)
The more common of these concerted activities as far as employees are concerned are: strikes — the temporary stoppage of work as a result of an industrial or labor dispute; picketing — the marching to and fro at the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute; and boycotts — the concerted refusal to patronize an employer’s goods or services and to persuade others to a like refusal. On the other hand, the counterpart activity that management may licitly undertake is the lockout — the temporary refusal to furnish work on account of a labor dispute. In this connection, the same Article 263 provides that the “right of legitimate labor organizations to strike and picket and of employer to lockout, consistent with the national interest, shall continue to be recognized and respected.” The legality of these activities is usually dependent on the legality of the purposes sought to be attained and the means employed therefor. (Ibid.)
2. Legal strike
|Procedurally, for a strike to be valid, it must comply with Article 278 of the Labor Code, which requires that:|
|1) A notice of strike be filed with the NCMB 30 days before the intended date thereof, or 15 days in case of unfair labor practice;|
|2) A strike vote be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; and|
|3) A notice be given to the NCMB of the results of the voting at least seven days before the intended strike. (Ergonomic Systems Philippines, Inc. v. Enaje, G.R. No. 195163, 13 December 2017)|
These requirements are mandatory, and the union’s failure to comply renders the strike illegal. The 15 to 30-day cooling-off period is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the NCMB conciliator/mediator, while the seven-day strike ban is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association [PILA], supra.)
In the determination of the consequences of illegal strikes, the law makes a distinction between union members and union officers. The services of an ordinary union member 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. A union officer, on the other hand, may be dismissed, not only when he actually commits an illegal act during a strike, but also if he knowingly participates in an illegal strike. (Ergonomic Systems Philippines, Inc. v. Enaje, supra.)
a. Grounds for strike
|Grounds for strike:|
|1) Bargaining deadlocks;|
|2) Unfair labor practices; and|
|3) Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions. (Section 1, Rule XIII, Book V, Omnibus Rules Implementing the Labor Code)|
Inter-union and internal union disputes or on issues – not a ground. No strike… may be declared on grounds involving inter-union and internal union disputes or on issues brought to voluntary or compulsory arbitration. (Ibid.)
Union busting, or interference with the formation of a union, constitutes an unfair labor practice (Art 248, subpar. 4, Labor Code), hence a valid ground for the declaration of a strike. (Zamboanga Food Products, Inc. v. NLRC, G.R. No. L-82088, 13 October 1989)
b. Mandatory procedural requirements
|Procedural requisites for a valid strike:|
|1) A notice of strike be filed with the Department of Labor and Employment (DOLE) 30 days before the intended date thereof, or 15 days in case of unfair labor practice;|
|2) A strike vote be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; and|
|3) A notice be given to the DOLE of the results of the voting at least seven days before the intended strike. (PHIMCO Industries, Inc. v. PHIMCO Industries Labor Association, G.R. No. 170830, 11 August 2010, citing Article 278 , Labor Code)|
1) Who may declare a strike
|Who may declare a strike:|
|1) Certified or duly recognized bargaining representative. Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices. (Section 2, Rule XIII, Omnibus Rules Implementing the Labor Code)|
|2) Legitimate labor organization. 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 grounds of unfair labor practices. (Section 2, Rule XIII, Ibid.)|
2) Notice of strike
|(c) In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 days before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case 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. (Article 278[c], P.D. 442, Labor Code)|
A union is mandated to notify the NCMB of an impending dispute in a particular bargaining unit via a notice of strike. Thereafter, the NCMB, through its conciliator-mediators, shall call the parties to a conference at the soonest possible time in order to actively assist them in exploring all possibilities for amicable settlement. In the event of the failure in the conciliation/mediation proceedings, the parties shall be encouraged to submit their dispute for voluntary arbitration. However, if the parties refuse, the union may hold a strike vote, and if the requisite number of votes is obtained, a strike may ensue. The purpose of the strike vote is to ensure that the decision to strike broadly rests with the majority of the union members in general and not with a mere minority, and at the same time, discourage wildcat strikes, union bossism and even corruption. A strike vote report submitted to the NCMB at least seven days prior to the intended date of strike ensures that a strike vote was, indeed, taken. In the event that the report is false, the seven-day period affords the members an opportunity to take the appropriate remedy before it is too late. The 15 to 30 day cooling-off period is designed to afford the parties the opportunity to amicably resolve the dispute with the assistance of the NCMB conciliator/mediator, while the seven-day strike ban is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members. (Capitol Medical Center, Inc. v. NLRC, G.R. No. 147080, 26 April 2005)
The requirement of giving notice of the conduct of a strike vote to the NCMB at least 24 hours before the meeting for the said purpose is designed to (a) inform the NCMB of the intent of the union to conduct a strike vote; (b) 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 attendant thereto; and (c) should the NCMB decide on its own initiative or upon the request of an interested party including the employer, to supervise the strike vote, to give it ample time to prepare for the deployment of the requisite personnel, including peace officers if need be. Unless and until the NCMB is notified at least 24 hours of the union’s decision to conduct a strike vote, and the date, place, and time thereof, the NCMB cannot determine for itself whether to supervise a strike vote meeting or not and insure its peaceful and regular conduct. The failure of a union to comply with the requirement of the giving of notice to the NCMB at least 24 hours prior to the holding of a strike vote meeting will render the subsequent strike staged by the union illegal. (Ibid.)
CAPITOL MEDICAL CENTER v. NLRC, G.R. No. 147080, 26 April 2005
⦁ In this case, the respondent Union failed to comply with the 24-hour prior notice requirement to the NCMB before it conducted the alleged strike vote meeting on November 10, 1997. As a result, the petitioner complained that no strike vote meeting ever took place and averred that the strike staged by the respondent union was illegal.
⦁ Conformably to Article 264 of the Labor Code of the Philippines and Section 7, Rule XXII of the Omnibus Rules Implementing the Labor Code, no labor organization shall declare a strike unless supported by a majority vote of the members of the union obtained by secret ballot in a meeting called for that purpose. The requirement is mandatory and the failure of a union to comply therewith renders the strike illegal. The union is thus mandated to allege and prove compliance with the requirements of the law.
a) Contents of notice
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. (Section 4, Rule XIII, Omnibus Rules Implementing the Labor Code)
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 practices, the notice shall, as far as practicable, state the acts complained of and the efforts taken to resolve the dispute amicably. (Paragraph 2, Section 4, Rule XIII, Ibid.)
Any notice which does not conform with the requirements of this and the foregoing sections shall be deemed as not having been filed and the party concerned shall be so informed by the regional branch of the Board. (Paragraph 3, Section 4, Rule XIII, Ibid.)
b) Cooling-off period
The language of the law leaves no room for doubt that the cooling-off period and the seven-day strike ban after the strike-vote report were intended to be mandatory. The cooling-off period must be observed as it is the requisite number of days from the mandatory filing of the Notice of Strike, before the lapse of which, the union may not strike. (CCBPI Postmix Workers Union v. NLRC, G.R. Nos. 114521 and 123491, 27 November 1998)
NFSW v. OVEJERA, En Banc, G.R. No. L-59743, 31 May 1982
⦁ The foregoing provisions hardly leave any room for doubt that 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, and should be deemed, mandatory.
⦁ When the law says “the labor union may strike” should the dispute “remain unsettled until the lapse of the requisite number of days (cooling-off period) from the mandatory filing of the notice,” the unmistakable implication is that the union may not strike before the lapse of the cooling-off period. Similarly, the mandatory character of the 7-day strike ban after the report on the strike-vote is manifest in the provision that “in every case,” the union shall furnish the [now DOLE] with the results of the voting “at least seven (7) days before the intended strike, subject to the (prescribed) cooling-off period.” It must be stressed that the requirements of cooling-off period and 7-days strike ban must both be complied with, although the labor union may take a strike vote and report the same within the statutory cooling-off period.
⦁ If only the filing of the strike notice and the strike-vote report would be deemed mandatory, but not the waiting periods so specifically and emphatically prescribed by law, the purposes (hereafter discussed) for which the filing of the strike notice and strike-vote report is required would not be achieved, as when a strike is declared immediately after a strike notice is served, or when — as in the instant case — the strike-vote report is filed with [now DOLE] after the strike had actually commenced. Such interpretation of the law ought not and cannot be countenanced. It would indeed be self-defeating for the law to imperatively require the filing of a strike notice and strike-vote report without at the same time making the prescribed waiting periods mandatory.
CCBPI POSTMIX WORKERS UNION v. NLRC, G.R. Nos. 114521 and 123491, 27 November 1998
⦁ [W]e do not agree with the Labor Arbiter’s opinion that a deficiency of one-day from the mandatory seven-day strike ban is not a fatal defect, as to render the strike illegal. We do not share the view that the union should be considered to have substantially complied with the strike requirements under the law.
⦁ It bears stressing that the strike requirements under Articles 264 and 265 of the Labor Code are mandatory requisites, without which, the strike will be considered illegal. The evident intention of the law in requiring the strike notice and strike-vote report as mandatory requirements is to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy objectives embodied in the law. Verily, substantial compliance with a mandatory provision will not suffice. Strict adherence to the mandate of the law is required.
⦁ In fine, we hold that for failure of the striking union to observe and comply with the seven-day mandatory strike ban, the strike on April 20, 1987 was illegal.
3) Disclosure of information
In collective bargaining, the parties shall, at the request of either of them, make available such up-to-date financial information on the economic situation of the undertaking, which is normally submitted to relevant government agencies, as is material and necessary for meaningful negotiations. Where the disclosure of some of this information could be prejudicial to the undertaking, its communication may be made conditioned upon a commitment that it would be regarded as confidential to the extent required. The information to be made available may be agreed upon between the parties to collective bargaining. (Section 5, Rule XIII, Ibid.)
Upon receipt of the notice, the regional branch of the Board shall exert all efforts at mediation and conciliation to enable the parties to settle the dispute amicably. The regional branch of the Board shall also encourage the parties to submit the dispute to voluntary arbitration. (Section 6, Rule XIII, Ibid.)
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, to participate fully and promptly in the conciliation meetings called by the regional branch of the Board. The regional branch of the Board shall have the power to issue subpoenas requiring the attendance of the parties to the meetings. (Paragraph 2, Section 6, Rule XIII, Ibid.)
a) Privileged communication
Information and statements given at conciliation proceedings shall be treated as privileged communications. Conciliators and similar officials shall not testify in any court or body regarding any matter taken up at conciliation proceedings conducted by them. (Section 6, Rule XIII, Ibid.)
5) Strike vote
Majority vote by secret ballot. A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in meetings or referenda called for the purpose. (Section 7, Rule XIII, Ibid.)
The regional branch of the Board may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the regional branch of the Board the notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings as well as the results of the voting at least seven (7) days before the intended strike or lockout, subject to the cooling-off period provided in this Rule. (Paragraph 2, Section 7, Rule XIII, Ibid.)
6) Declaration of strike
Should the dispute remain unsettled after the lapse of the requisite number of days from the filing of the notice of strike… and of the results of the election required in the preceding section, the labor union may strike… The regional branch of the Board shall continue mediating and conciliating. (Section 8, Rule XIII, Ibid.)
c. Burden of proof
The union is thus mandated to allege and prove compliance with the requirements of the law. (Capitol Medical Center, Inc. v. NLRC, supra.)
d. Improved offer balloting
Improved offer balloting – refers to a referendum by secret balloting conducting by the NCMB on the improved offer of the employer. (No. 20, Rule III, The Revised National Conciliation and Mediation Board Manual of Procedures for Conciliation and Prevention Mediation Cases, 2017 edition)
In case of a strike, the regional branch of the Board shall, at its own initiative or upon the request of any affected party, conduct a referendum by secret balloting 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. (Section 8-a, Rule XIII, Ibid.)
e. Hiring of replacements
The mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment even if a replacement had been hired by the employer during such lawful strike. (Section 9, Rule XIII, Ibid.)
But any 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 his employment status. (Ibid.)
1) Prohibition regarding the employment of replacements
f. AFP or PNP
No public official employee, including officers and personnel of the Armed Forces of the Philippines or the Philippine National Police, or any armed person shall:
1) 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
2) Work in place of the strikers. (Section 10, Rule XIII, Ibid.)
1) Maintain peace and order, and/or protect life and property
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 protect life and property. (Section 10, Rule XIII, Ibid.)
3. Illegal strike
In fine, the legality of a strike is determined not only by compliance with its legal formalities but also by the means by which it is carried out. (BPILU v. Filflex Industrial and Manufacturing Corporation, G.R. No. 155679, 19 December 2006)
BPILU v. FILFLEX INDUSTRIAL AND MANUFACTURING CORPORATION, G.R. No. 155679, 19 December 2006
⦁ Even assuming arguendo that in staging the strike, petitioners had complied with legal formalities, the strike would just the same be illegal, for by blocking the free ingress to and egress from the company premises, they violated Article 264(e) of the Labor Code which provides that “[n]o person engaged in picketing shall… obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares.”
⦁ Even the NLRC, which ordered their reinstatement, took note of petitioners’ act of “physically blocking and preventing the entry of complainant’s customers, supplies and even other employees who were not on strike.”
a. Prohibited activities
|The following are prohibited acts:|
|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.|
|3) 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 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.|
|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 —(a) 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 (b) 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.|
|(1996 DOLE Primer on Strike, Picketing and Lockout; See also Article 279, P.D. 442, Labor Code)|
b. Liability of union officers and members
|Any 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 his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike. (Paragraph 3, Article 279[a], P.D. 442, Labor Code)|
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 (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)
Reinstatement of a striker or retention of his employment, despite his participation in an illegal strike, is a management prerogative which this Court may not supplant. (BPILU v. Filflex Industrial and Manufacturing Corporation, supra.)
c. Categories of illegal strike
NUWHRAIN-APL-IUF v. CA, G.R. No. 163942, 11 November 2008
⦁ In Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. National Labor Relations Commission, we cited the various categories of an illegal strike, to wit:
Noted authority on labor law, Ludwig Teller, lists six (6) categories of an illegal strike, viz.:
(1) [when it] is contrary to a specific prohibition of law, such as strike by employees performing governmental functions; or
(2) [when it] violates a specific requirement of law[, such as Article 263 of the Labor Code on the requisites of a valid strike]; or
(3) [when it] is declared for an unlawful purpose, such as inducing the employer to commit an unfair labor practice against non-union employees; or
(4) [when it] employs unlawful means in the pursuit of its objective, such as a widespread terrorism of non-strikers [for example, prohibited acts under Art. 264(e) of the Labor Code]; or
(5) [when it] is declared in violation of an existing injunction[, such as injunction, prohibition, or order issued by the DOLE Secretary and the NLRC under Art. 263 of the Labor Code]; or
(6) [when it] is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause.
⦁ With the foregoing parameters as guide and the following grounds as basis, we hold that the Union is liable for conducting an illegal strike for the following reasons:
⦁ First, the Union’s violation of the Hotel’s Grooming Standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the Hotel and was, therefore, not a protected action. The appearances of the Hotel employees directly reflect the character and well-being of the Hotel, being a five-star hotel that provides service to top-notch clients. Being bald or having cropped hair per se does not evoke negative or unpleasant feelings. The reality that a substantial number of employees assigned to the food and beverage outlets of the Hotel with full heads of hair suddenly decided to come to work bald-headed or with cropped hair, however, suggests that something is amiss and insinuates a sense that something out of the ordinary is afoot. Obviously, the Hotel does not need to advertise its labor problems with its clients. It can be gleaned from the records before us that the Union officers and members deliberately and in apparent concert shaved their heads or cropped their hair. This was shown by the fact that after coming to work on January 18, 2002, some Union members even had their heads shaved or their hair cropped at the Union office in the Hotel’s basement. Clearly, the decision to violate the company rule on grooming was designed and calculated to place the Hotel management on its heels and to force it to agree to the Union’s proposals.
⦁ In view of the Union’s collaborative effort to violate the Hotel’s Grooming Standards, it succeeded in forcing the Hotel to choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work, even if it had to cease operations in affected departments or service units, which in either way would disrupt the operations of the Hotel. This Court is of the opinion, therefore, that the act of the Union was not merely an expression of their grievance or displeasure but, indeed, a calibrated and calculated act designed to inflict serious damage to the Hotel’s finances or its reputation. Thus, we hold that the Union’s concerted violation of the Hotel’s Grooming Standards which resulted in the temporary cessation and disruption of the Hotel’s operations is an unprotected act and should be considered as an illegal strike.
⦁ Second, the Union’s concerted action which disrupted the Hotel’s operations clearly violated the CBA’s “No Strike, No Lockout” provision, which reads:
ARTICLE XXII – NO STRIKE/WORK STOPPAGE AND LOCKOUT
SECTION 1. No Strikes
The Union agrees that there shall be no strikes, walkouts, stoppage or slow-down of work, boycott, refusal to handle accounts, picketing, sit-down strikes, sympathy strikes or any other form of interference and/or interruptions with any of the normal operations of the HOTEL during the life of this Agreement.
⦁ The facts are clear that the strike arose out of a bargaining deadlock in the CBA negotiations with the Hotel. The concerted action is an economic strike upon which the afore-quoted “no strike/work stoppage and lockout” prohibition is squarely applicable and legally binding.
⦁ Third, the Union officers and members’ concerted action to shave their heads and crop their hair not only violated the Hotel’s Grooming Standards but also violated the Union’s duty and responsibility to bargain in good faith. By shaving their heads and cropping their hair, the Union officers and members violated then Section 6, Rule XIII of the Implementing Rules of Book V of the Labor Code. This rule prohibits the commission of any act which will disrupt or impede the early settlement of the labor disputes that are under conciliation. Since the bargaining deadlock is being conciliated by the NCMB, the Union’s action to have their officers and members’ heads shaved was manifestly calculated to antagonize and embarrass the Hotel management and in doing so effectively disrupted the operations of the Hotel and violated their duty to bargain collectively in good faith.
⦁ Fourth, the Union failed to observe the mandatory 30-day cooling-off period and the seven-day strike ban before it conducted the strike on January 18, 2002. The NLRC correctly held that the Union failed to observe the mandatory periods before conducting or holding a strike. Records reveal that the Union filed its Notice of Strike on the ground of bargaining deadlock on December 20, 2001. The 30-day cooling-off period should have been until January 19, 2002. On top of that, the strike vote was held on January 14, 2002 and was submitted to the NCMB only on January 18, 2002; therefore, the 7-day strike ban should have prevented them from holding a strike until January 25, 2002. The concerted action committed by the Union on January 18, 2002 which resulted in the disruption of the Hotel’s operations clearly violated the above-stated mandatory periods.
⦁ Last, the Union committed illegal acts in the conduct of its strike. The NLRC ruled that the strike was illegal since, as shown by the pictures presented by the Hotel, the Union officers and members formed human barricades and obstructed the driveway of the Hotel. There is no merit in the Union’s argument that it was not its members but the Hotel’s security guards and the police officers who blocked the driveway, as it can be seen that the guards and/or police officers were just trying to secure the entrance to the Hotel. The pictures clearly demonstrate the tense and highly explosive situation brought about by the strikers’ presence in the Hotel’s driveway.
4. No strike, lockout clause
A no strike, no lockout clause in the CBA is valid and binding.
USAEU-FFW v. CA, UNIVERSITY OF SAN AGUSTIN, G.R. No. 169632, 29 March 2006
⦁ The grievance machinery and no strike, no lockout provisions of the CBA forged by the University and the Union are founded on Articles 261 and 262 quoted above. The parties agreed that practically all disputes – including bargaining deadlocks – shall be referred to the grievance machinery which ends in voluntary arbitration. Moreover, no strike or no lockout shall ensue while the matter is being resolved.
⦁ As we see it, the failure or refusal of the NCMB and thereafter the SOLE to recognize, honor and enforce the grievance machinery and voluntary arbitration provisions of the parties’ CBA unwittingly rendered said provisions, as well as, Articles 261 and 262 of the Labor Code, useless and inoperative. As here, a union can easily circumvent the grievance machinery and a previous agreement to resolve differences or conflicts through voluntary arbitration through the simple expedient of filing a notice of strike. On the other hand, management can avoid the grievance machinery and voluntary arbitration provisions of its CBA by simply filing a notice of lockout.
⦁ In Liberal Labor Union vs. Philippine Can Company, the Court viewed that the main purpose of management and labor in adopting a procedure in the settlement of their disputes is to prevent a strike or lockout. Thus, this procedure must be followed in its entirety if it is to achieve its objective. Accordingly, the Court in said case held:
The authorities are numerous which hold that strikes held in violation of the terms contained in a collective bargaining agreement are illegal, specially when they provide for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their ends have to be achieved.
⦁ It is noteworthy that in Liberal, management refused to submit names in connection with the formation of the grievance committee. Yet, the Court ruled in that case that labor still had no right to declare a strike, for its duty is to exhaust all available means within its reach before resorting to force. In the case at bench, the University, in filing its Motion to Strike Out Notice of Strike and to Refer the Dispute to Voluntary Arbitration before the NCMB, was insisting that the Union abide by the parties’ CBA’s grievance machinery and voluntary arbitration provisions. With all the more reasons then should the Union be directed to proceed to voluntary arbitration.
⦁ Book V, Presidential Decree No. 442, a.k.a. Labor Code of the Philippines
⦁ Book V, Omnibus Rules Implementing the Labor Code
▪ 2017 Revised NCMB Manual of Procedures for Conciliation and Prevention Mediation Cases
▪ 1996 DOLE Primer on Strike, Picketing and Lockout
▪ NCMB Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings
/Updated: February 23, 2023