NERI LAW NOTES

LABOR RELATIONS LAW

NOTES ON STRIKE, PICKETING AND LOCKOUTS 1. The Right to engage in concerted activities 1.1. Concerted activity by one Jurisprudentially defined, concerted activity is one undertake by two or more employees. 2. Nature of Strike 2.1. Definition A strike a cessation of work by employees in an effort to get more favorable terms for themselves, or as a concerted refusal by employees to do any work for their employer, or to work at their customary rate of speed until the object of strike is attained by the employers granting the demand concession. Basis (1) a collective bargaining deadlock (2) an unfair labor practice act of the employer. 2.2. Characteristics (1) Employer-employee relationship (2) existence of dispute (3) belligerent suspension of such relationship (4) temporary (5) concerted action (6) the group is a legitimate labor organization 2.3. Basic Objective 2.4. Constitutional Status 2.5. Nature and Definition of Lockout Lockout means the temporary refusal of any employer to furnish work as a result of an industrial or labor dispute it is an employers act excluding employees who are union members from the plant. It is an act directed at the union itself rather than at the individual employee-members of the union

3. Grounds for strike and lock Basis (1) collective bargaining deadlock (2) ULP No strike when:

NERI LAW NOTES o o o o o (1) Inter-union and intra-union disputes (2) Without having filed NOTICE of strike (3) Assumption of the secretary (4) Submission to voluntary or compulsory arbitration (5) Pendency of cases

A lockout is proper when: o Notice o 30 days has elapsed since the filing of the notice before lockout is declared 30 days for bargaining strike 15 days for ULP o Impasse resulted o Not discriminatory

4. Kinds of strike 5. A valid strike needs a labor dispute Labor dispute includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

5.1. Sympathetic strike ILLEGAL 5.2. Welga ng Bayan ILLEGAL but in the realm of political freedom, a general strike maybe defensible. (Biflex Phil, Inc Labor Union etc vs Filex Industrial Mfg. Corp) 6. Avoidance of strike Measures or remedies must first be exhausted before a strike. Thus disregarding the grievance procedure or refusal to submit the arbitrable issue to voluntary arbitration may justify a conclusion that the strike was held prematurely thus illegal.

6.1. Conciliation, mediation, compromise to avoid strike Premature strike Not giving the board reasonable time to act on the demands Going to strike knowing that their demands can never be acted upon due to the presidents absence

NERI LAW NOTES Going to strike without waiting for the result of an investigation

7. Protection of strike Not subject to labor injunction or restraining order Not be discriminated Strike breakers prohibited Does not sever e-e rel.

7.1. Role of Police should be in uniform 8. Status of strikers The declaration of a strike does not amount to renunciation of the employment relationship

8.1. Notion of Striking Employee The employee status remains, but the effects of employment are suspended, hence striking employee as a rule is NOT ENTITLED TO HIS WAGE during the strike.

9. Legality of Strike: The six factors affecting legality Contrary to specific prohibition of law Violates specific requirements of law Unlawful purpose Unlawful means Declared in violation of an existing injunction Contrary to existing agreement

10. First Factor in legality of strike: Statutory Prohibition SSEA vs CA: Government employees has no right to strike Bangalisan vs CA: Mass actions of teachers were to all intents and purposes a strike

11. Second Factor: Procedural Requirements mandatory! 11.1. Notice of Strike Filed with the DOLE regional branch of the national conciliation AND mediation board If the reason for the intended strike is ULP by the employer, the duly recognized or certified bargaining agent should file the notice.

NERI LAW NOTES 11.2. 11.3. If a bargaining deadlock exists, only the bargaining union and no other union has the duty and authority to take appropriate action, including the filing of a strike notice. Cooling of Period Bargaining deadlock: 30 days Unfair Labor Practice: 15 days o But in the case of union busting: no cooling off period needed. Strike Vote secret balloting Needed vote is 50% + 1 of total union membership. So if the total membership is 178, 60 of whom have been dismissed but are being contested by the union, the 60 should be included. The needed vote is at least 90. Strike Vote Report 11.5. Reported to the NCMB at least 7 days before the intended lockout or strike subject to the cooling off period. A strike held within 7 day waiting period is illegal A strike without submission of result is illegal The seven days are added to the 15-day or 30 day cooling off period. Declaration of strike or lockout If dispute remains unsettled after the lapse of the cooling off period AND the seven day reporting period, the labor union may strike or the employer may lock out its workers.

11.4.

11.6. Procedural requirement, mandatory, non-observance makes strike illegal 11.7. Strike on installment: work slowdown and overtime boycott ILLEGAL strike 11.8. In case of Union busting It exists when: (1) the union officers are being dismissed (2) those officers are the ones duly elected (3) the existence of the union is threatened. 11.9. Strike during arbitration, illegal thus they call lose their employment status 11.10. Strike Despite Preventive Mediation

NERI LAW NOTES PAL vs Sec of Labor: strike is illegal because it was premature, It violated the no-strike provision of the CBA, and the NCMB declared the notice of strike as appropriate for preventive mediation. Violation of a Valid Order Grievance procedure bypassed Strikes held in violation of the terms contained in a collective bargaining agreement are illegal, especially when they provide for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their end is to be achieved.

11.11. 11.12.

11.13. Dismissal of Employees during conciliation, when legal and enforceable GTE Directories Corp vs Sanchez: indeed, the overt, direct and deliberate and continued defiance and disregard by the employees (not submitting reports) of the authority of their employer left the latter with no alternative except to impose sanctions. The sanction of suspension having proved futile, termination of employment was the only option left to the employer.

12. Third Factor: Purpose; Economic and ULP Strike 12.1. The Conversion Doctrine 12.2. Lawful Purpose: Strike incident to collective Bargaining 12.2.1. Legality of Strike not dependent upon ability of management to grand demands 12.3. Lawful purpose: Strike against employers unfair labor practice 12.4. Lawful Purpose: ULP strike in Good Faith 12.4.1. The Good Faith Strike 12.4.2. Good Faith Strike doctrine applied even to a strike without prior notice and despite a non-strike clause 12.4.3. Good faith requires rational basis 12.4.4. Do the procedural requirement apply even to a ULP Strike is in Good Faith? 12.5. Lawful Purpose: Strike to Compel Recognition of the Bargaining with the Majority union 12.6. Unlawful Purpose: Strike for union recognition without having proven majority status 12.6.1. May a minority union strike? NO 12.6.2. Strike held to compel recognition with case is unresolved is illegal 12.7. Unlawful purpose: Trivial, Unjust, Unreasonable 12.8. Strike to compel removal of an employee; implied assertion of union infallibility 12.9. Unlawful Purpose: strike or non-strikable issue

NERI LAW NOTES 12.9.1. Non-strikable (NS): physical rearrangement of office 12.9.2. NS: Companys sales evaluation policy 12.9.3. NS: Salary distortion under the wage rationalization act 12.9.4. NS: Inter-union or Intra-union dispute 13. Fourth factor in legality of strike: Means and Methods 13.1. Threats, coercion or violence 13.1.1. Violence in both sides 13.2. Responsibility for use of force: individual or collective 13.3. Minor Disorders 13.4. Officials inability to leave premises, not illegal detention 14. Fifth factor in legality of strike: Injunction 14.1. National interest cases: automatic injunction and return to work order 14.2. What are considered national interest cases 14.2.1. National interest by statutory declaration 14.3. Assumption of jurisdiction: prior notice not required 14.4. Power to assume jurisdiction, constitutional 14.5. Certification to NLRC