STRIKES, PICKETING AND LOCK-OUTS
Art. 263 –
a. It is the policy of the State to encourage FREE TRADE UNIONISM and FREE COLLECTIVE BARGAINING
b. Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes.
c. 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. ULP – 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.
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.
d. Notice – in accord with the rules and regulations of DOLE
e. Cooling-off period – DOLE(Ministry) should exert all efforts at MEDIATION and CONCILIATION to effect a voluntary settlement. If still unsettled until the lapse of the period from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout.
f. A strike declaration must be approved by a MAJORITY of the members in the bargaining unit, obtained by SECRET BALLOT in meetings/referenda. It must be approved by a MAJORITY of the Board of Directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting. The Ministry may supervise the conduct of the balloting. The union or employer shall furnish him the results of the voting at least 7 days before the intended strike/lockout, subject to the cooling-off period.
g. Secretary – in his opinion, there is a labor dispute likely to cause strike/lockout in an industry indispensable to the national interest. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike/lockout.
If one has already taken place, all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Sec. or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.
National concern, high respect – right of patients to life and health, strike and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided and all serious efforts by the labor and management and the government to minimize, if not prevent, their adverse effects however legitimate it is. It is the duty of the strikers or employers to provide and maintain an effective SKELETAL WORKFORCE of medical and other health personnel, whose movement and services shall be unhampered and unrestricted.
The Sec may immediately assume within 24 hours from knowledge of the occurrence of such a strike/lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. – Disciplinary action includes dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other reliefs, even criminal prosecution.
The President shall not be precluded from determining the industries that are indispensable to the national interest, and from INTERVENING at any time and assuming JURISDICTION over any such labor dispute in order to settle or terminate the same.
h. Parties may opt to avail of voluntary arbitration before or at any stage of the compulsory arbitration process.
i. The Secretary, the Commission or the voluntary arbitrator shall decide or remove the dispute, as the case may be. The decision of the Pres, Sec, the Commission or the Voluntary Arbitrator shall be final and executory 10 calendar days after receipt thereof by the parties.
Art. 264.
There must first be a collective bargaining done before declaration of strike/lockout with or without first having filed the notice required in the preceding Art. or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. No strike or lockout shall be declared after ASSUMPTION of jurisdiction by the President/Minister or after certification or submissions to VOLUNTARY ARBITRATION or during the PENDENCY of cases involving the same grounds for the strike/lockout.
A terminated worker because of unlawful lockout shall be netitled to reinstatement with full backwages 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 of his employment, even if a replacement had been hired by the employer during such lawful strike.
No person shall OBSTRUCT, IMPEDE, or INTERFERE with by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference.
Art. 265. CBA – term of 5 years. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the DOLE outside of the 60-day period immediately before the date of expiry of the 5 year term.
All other provisions – renegotiated not later than 3 years after its execution. CBA entered into within 6 months from the date of expiry shall retroact to the day immediately following such date. If beyond, they shall agree as to the duration of the retroactivity.
Art. 266. NO temporary or permanent injunction or restraining order in any case involving or growing out of labor dispute shall be issued by any court or other entity. Except if illegal strike or picket. Or when the President or the Secretary assumes jurisdiction or the dispute is submitted to voluntary arbitration or during pendency of the case. “That prohibited or unlawful acts have been threatened and will be committed and will be continued unless restrained. – person/s, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof.. Substantial and irreparable injury. Greater injury. No adequate remedy at law and public officers unable or unwilling to furnish adequate protection.” – 20 days.. undertaking with adequate security.
DEFINITION
A strike is a legitimate weapon in the universal struggle for existence. It is considered as the most effective weapon in protecting the rights of the employees to improve the terms and conditions of their employment. But to be valid, a strike must be pursued within legal bounds. The right to strike as a means for the attainment of social justice is never meant to oppress or destroy the employer. The law provides limits for its exercise. 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: a) commit any act of violence, coercion, or intimidation or b) obstruct the free ingress to or egress from the employer's premises for lawful purposes or c) obstruct public thoroughfares.
EVEN IF THE STRIKE IS VALID BECAUSE ITS OBJECTIVE IS LAWFUL, THE STRIKE MAY STILL BE DECLARED INVALID WHERE THE MEANS EMPLOYED ARE ILLEGAL; CASE AT BAR. — Even if the strike is valid because its objective or purpose is lawful, the strike may still be declared invalid where the means employed are illegal. For instance, the strike was considered illegal as the "strikers formed a human cordon along the side of the Sta. Ana wharf and blocked all the ways and approaches to the launches and vessels of Petitioners."
BACKWAGES; EMPLOYEES ARE ENTITLED FULL BACKWAGES WITHOUT DEDUCTIONS; CASE AT BAR. — The unmeritorious appeal interposed by the respondent company, let alone the failure to execute with dispatch the award of reinstatement delayed the payroll reinstatement of petitioners. But their long waiting is not completely in vain, for the court holds that their (petitioners') salaries and backwages must be computed from October 15, 1993 until full payment of their separation pay, without any deduction. This is in consonance with the ruling in the case of Bustamante vs. NLRC, where payment of full backwages without deductions was ordered. The four petitions herein are entitled to reinstatement absent any just ground for their dismissal. Considering however, that more than eight (8) years have passed since subject strike was staged, an award of separation pay equivalent to one (1) month pay for every year of service, in lieu of reinstatement, is deemed more practical and appropriate to all the parties concerned.
||| (Association of Independent Unions in the Phil. v. National Labor Relations Commission, G.R. No. 120505, [March 25, 1999], 364 PHIL 697-713)
MASS LEAVE IS NOT EQUIVALENT TO A STRIKE
King of Kings Transport case – a bare mention of an illegal strike will not suffice.
Reasonable period within which to explain on the part of the employee is 5 days minimum
The term "Mass Leave" has been left undefined by the Labor Code. Plainly, the legislature intended that the term's ordinary sense be used. "Mass" is defined as "participated in, attended by, or affecting a large number of individuals; having a large-scale character." While the term "Leave" is defined as "an authorized absence or vacation from duty or employment usually with pay."
Thus, the phrase "mass leave" may refer to a simultaneous availment of authorized leave benefits by a large number of employees in a company.
||| (Naranjo v. Biomedica Health Care, Inc., G.R. No. 193789, [September 19, 2012], 695 PHIL 551-576)
Art. 212 (o) of the Labor Code defines a strike as "any temporary stoppage of work by the concerted action of employees as a result of any industrial or labor dispute."
"Concerted" is defined as "mutually contrived or planned" or "performed in unison." In the case at bar, the 5 petitioners went on leave for various reasons. Petitioners were in different places on November 7, 2006 to attend to their personal needs or affairs. They did not go to the company premises to petition Biomedica for their grievance. To demonstrate their good faith in availing their leaves, petitions reported for work and were at the company premises in the afternoon after they received text messages asking them to do so. This shows that there was NO intent to go on strike. Unfortunately, they were barred from entering the premises and were told to look for new jobs. Surely the absence of petitioners in the morning of November 7, 2006 cannot in any way be construed as a concerted action, as their absences are presumed to be for valid causes, in good faith, and in the exercise of their right to avail themselves of CBA or company benefits. Moreover, Biomedica did not prove that the individual absences can be considered as "temporary stoppage of work." Biomedica's allegation that the mass leave "paralyzed the company operation on that day" has remained unproved. It is erroneous, therefore, to liken the alleged mass leave to an illegal strike much less to terminate petitioners' services for it.
||| (Naranjo v. Biomedica Health Care, Inc., G.R. No. 193789, [September 19, 2012], 695 PHIL 551-576)
Department Order no. 9
Section 1. Grounds for strike and lockout. - A strike or lockout may be declared in cases of bargaining deadlocks and unfair labor practices.Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable.No strike or lockout may be declared on grounds involving inter-union and intra-union disputes or on issues brought to voluntary or compulsory arbitration.
Section 2.Who may declare a strike or lockout. - Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks and unfair labor practices.The employer may declare a lockout in the same cases.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.
REQUISITES FOR VALID STRIKE/LOCKOUT
The respondent Secretary of Labor erred in declaring the strike legal. There is no evidence to show that a strike vote had in fact been taken before a strike was called. Even assuming that a strike vote had been taken, the strike called by the Union was illegal because of non-observance by the Union of the mandatory seven-day strike ban counted from the date the strike vote should have been reported to the Department of Labor and Employment up to the time the Union staged the strike on June 17, 1986. In accordance with Art. 264 of the Labor Code, any union officer who knowingly participated in the illegal strike is deemed to have lost his employment status. The commission of the illegal acts during the strike rendered it illegal. However, only officers and leaders of the Union and workers guilty of illegal acts are liable. Such employees are deemed to have lost their employment status in accordance with Art. 264 of the Labor code.
Petitioner substantially complied with the Return to Work Order. The medical examination, NBI, Police and Barangay Clearances as well as the driver's and conductor's/conductress' licenses and photographs required as conditions for reinstatement were reasonable management prerogatives. However, the other requirements imposed as condition for reinstatement were unreasonable considering that the employees were not being hired for the first time, although the imposition of such requirements did not amount to refusal on the part of the employer to comply with the Return to Work Order or constitute illegal lockout so as to warrant payment of backwages to the strikers. If at all, it is the employees' refusal to return to work that may be deemed a refusal to comply with the Return to Work Order resulting in loss of their employment status. As both the employer and the employees were, in a sense, at fault or in pari delicto, the nonreturning employees, provided they did not participate in illegal acts, should be considered entitled to reinstatement. But since reinstatement is no longer feasible, they should be given separation pay computed up to March 8, 1988 (the date set for the return of the employees) in lieu of reinstatement.
||| (First City Interlink Transportation Co., Inc. v. Roldan-Confesor, G.R. No. 106316, [May 5, 1997], 338 PHIL 635-651)
Article 263 of the Labor Code, as amended by Republic Act (R.A.) No. 6715, 22 and Rule XXII, Book V of the Omnibus Rules Implementing the Labor Code outline the following procedural requirements for a valid strike:
1) A notice of strike, with the required contents, should be filed with the DOLE, specifically the Regional Branch of the NCMB, copy furnished the employer of the union;
2) A cooling-off period must be observed between the filing of notice and the actual execution of the strike thirty (30) days in case of bargaining deadlock and fifteen (15) days in case of unfair labor practice. However, in the case of union busting where the union's existence is threatened, the cooling-off period need not be observed.
xxx xxx xxx
4) Before a strike is actually commenced, a strike vote should be taken by secret balloting, with a 24-hour prior notice to NCMB. The decision to declare a strike requires the secret-ballot approval of majority of the total union membership in the bargaining unit concerned. TcEDHa
5) The result of the strike vote should be reported to the NCMB at least seven (7) days before the intended strike or lockout, subject to the cooling-off period. 23
It is settled that these requirements are mandatory in nature and failure to comply therewith renders the strike illegal. 24
In the case at bar, the Union staged the strike on the same day that it filed its second notice of strike. The Union violated the seven-day strike ban. This requirement should be observed to give the Department of Labor and Employment (DOLE) an opportunity to verify whether the projected strike really carries the approval of the majority of the union members.
||| (Pilipino Telephone Corp. v. Pilipino Telephone Employees Association, G.R. Nos. 160058 &160094, [June 22, 2007], 552 PHIL 432-452)
When is a strike illegal?
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.
||| (Toyota Motor Phils. Corp. Workers Association v. National Labor Relations Commission, G.R. Nos. 158786, 158789 & 158798-99, [October 19, 2007], 562 PHIL 759-817) PRUUVC
The evident intention of the law in requiring the strike notice and the strike-vote report is to reasonably regulate the right to strike, which is essential to the attainment of legitimate policy objectives embodied in the law.||| (Toyota Motor Phils. Corp. Workers Association v. National Labor Relations Commission, G.R. Nos. 158786, 158789 & 158798-99, [October 19, 2007], 562 PHIL 759-817)
ECONOMIC STRIKE/LOCK OUT; DEADLOCK
"A 'deadlock' is . . . the counteraction of things producing entire stoppage; . . . There is a deadlock when there is a complete blocking or stoppage resulting from the action of equal and opposed forces . . . The word is synonymous with the word impasse, which . . . 'presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties.'"||| (Capitol Medical Center Alliance of Concerned Employees-UFSW v. Laguesma, G.R. No. 118915, [February 4, 1997], 335 PHIL 170-181)
ULP STRIKE/LOCK-OUT
FILING OF PETITION FOR CANCELLATION OF UNION’S REGISTRATION IS NOT PER SE AN ACT OF ULP
A "lock-out" means the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. As correctly found by the NLRC, in the case under consideration evidence of illegal lock-out is wanting such that there can be no conclusive determination by the NLRC as to the charge. Petitioners failed to present sufficient proof to support the allegation of illegal lock-out. No evidence was adduced by the Union to show that the Bank really refused them employment during the pendency of the strike. As to the allegation that the Bank was interfering with and restraining the employees in the exercise of their right to self-organization, suffice it to state that filing a petition for cancellation of the Union's registration is not per se an act of unfair labor practice. It must be shown by substantial evidence that the filing of the petition for cancellation of union registration by the employer was aimed to oppress the Union. Consequently, the NLRC was right in ordering the remand of Case No. 0097-89 for further proceedings.||| (Rural Bank of Alaminos Employees Union v. National Labor Relations Commission, G.R. Nos. 100342-44, [October 29, 1999], 376 PHIL 18-31)
WELGA NG BAYAN NOT A VALID PURPOSE
Stoppage of work due to welga ng bayan is in the nature of a general strike, an extended sympathy strike. It affects numerous employers including those who do not have a dispute with their employees regarding their terms and conditions of employment.
Employees who have no labor dispute with their employer 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.
Even if petitioners' joining the welga ng bayan were considered merely as an exercise of their freedom of expression, freedom of assembly or freedom to petition the government for redress of grievances, the exercise of such rights is not absolute. For the protection of other significant state interests such as the "right of enterprises to reasonable returns on investments, and to expansion and growth" enshrined in the 1987 Constitution must also be considered, otherwise, oppression or self-destruction of capital in order to promote the interests of labor would be sanctioned. And it would give imprimatur to workers' joining demonstrations/rallies even before affording the employer an opportunity to make the necessary arrangements to counteract the implications of the work stoppage on the business, and ignore the novel "principle of shared responsibility between workers and employers" aimed at fostering industrial peace.
There being no showing that petitioners notified respondents of their intention, or that they were allowed by respondents, to join the welga ng bayan on October 24, 1990, their work stoppage is beyond legal protection.
||| (Biflex Phils. Inc. Labor Union v. Filplex Industrial and Manufacturing Corporation, G.R. No. 155679, [December 19, 2006], 540 PHIL 269-278)
Petitioner's case rests on the alleged discriminatory acts of respondent company against petitioner's officers and members. However, both the Labor Arbiter and the NLRC held that there was no sufficient proof of respondent company's alleged discriminatory acts. Thus, petitioner's unfair labor practice, union-busting and unlawful lockout claims do not hold water. Moreover, the established facts as found by the NLRC are as follows: the "sit-down strike" made by petitioner's officers and members on July 21, 1997 was in violation of respondent company's rules, and petitioner's officers and members ignored the opportunity given by respondent company for them to explain their misconduct, which resulted in the termination of their employment.||| (Malayang Manggagawa ng Stayfast Phils., Inc. v. National Labor Relations Commission, G.R. No. 155306, [August 28, 2013], 716 PHIL 500-519)
In cases when an employee is unjustly dismissed from work, he shall be entitled to reinstatement without loss of seniority rights and other privileges, inclusive of allowances, and other benefits or their monetary equivalent from the time the compensation was withheld up to the time of actual reinstatement.
In the case at bar, the Court finds that it would be best to award separation pay instead of reinstatement, in view of the passage of a long period of time since respondents' dismissal. In St. Luke's Medical Center, Inc. v. Notario, the Court held that if reinstatement proves impracticable, and hardly in the best interest of the parties, due to the lapse of time since the employee's dismissal, the latter should be awarded separation pay in lieu of reinstatement.
In view of the foregoing, respondents are entitled to the payment of full backwages, inclusive of allowances, and other benefits or their monetary equivalent, and separation pay in lieu of reinstatement equivalent to one month salary for every year of service. The awards of separation pay and backwages are not mutually exclusive, and both may be given to respondents.
||| (Park Hotel v. Soriano, G.R. No. 171118, [September 10, 2012], 694 PHIL 471-488)
Obstructions or blockades to entrance or exit of a private company during a labor dispute may also be removed upon orders of the office of the Secretary, the NLRC, or its branches. The removal is to be done by police authorities, coordinating with labor officials concerned.
"SLOWDOWN"; CONSIDERED CONTRARY TO LAW. — What has just been said makes unnecessary resolution of SMC's argument that the workers' concerted refusal to adhere to the work schedule in force for the last several years, is a slowdown, an inherently illegal activity essentially illegal even in the absence of a no-strike clause in a collective bargaining contract, or statute or rule. The Court is in the substantial agreement with the petitioner's concept of a slowdown as a "strike on the installment plan;" as a wilful reduction in the rate of work by concerted action of workers for the purpose of restricting the output of the employer, in relation to a labor dispute; as an activity by which workers, without a complete stoppage of work, retard production or their performance of duties and functions to compel management to grant their demands. The Court also agrees that such a slowdown is generally condemned as inherently illicit and unjustifiable, because while the employees "continue to work and remain at their positions and accept wages paid them," they at the same time "select what part of their allotted tasks they care to perform of their own volition or refuse openly or secretly, to the employer's damage, to do other work;" in other words, they "work on their own terms." But whether or not the workers' activity in question — their concerted adoption of a different work schedule than that prescribed by management and adhered to for several years — constitutes a slowdown need not, as already stated, be gone into. Suffice it to say that that activity is contrary to the law, RA 6727, and the parties' collective bargaining agreement.||| (Ilaw at Buklod ng Manggagawa v. National Labor Relations Commission, G.R. No. 91980, [June 27, 1991], 275 PHIL 635-654)
VIOLENCE COMMITTED ON BOTH SIDES DURING THE STRIKE
the Labor Arbiter held that the strike was illegal for the following reasons: (1) it was based on an intra-union dispute which cannot properly be the subject of a strike, the right to strike being limited to cases of bargaining deadlocks and unfair labor practice (2) it was made in violation of the "no strike, no lock-out" clause in the CBA, and (3) it was attended with violence, force and intimidation upon the persons of the company officials, other employees reporting for work and third persons having legitimate business with the company, resulting to serious physical injuries to several employees and damage to company property.||| (Malayang Samahan Ng Mga Manggagawa Sa M. Greenfield v. Ramos, G.R. No. 113907, [February 28, 2000], 383 PHIL 329-374)
LIABILITY OF UNION MEMBERS AND OFFICERS IN ILLEGAL STRIKES
TERMINATION OF EMPLOYMENT; ILLEGAL DISMISSAL; TRANSFER OF EMPLOYEE MUST BE PROVED NECESSARY BY THE EMPLOYER. — The rule is that the transfer of an employee ordinarily lies within the ambit of the employer's prerogatives. The employer exercises the prerogative to transfer an employee for valid reasons and according to the requirement of its business, provided the transfer does not result in demotion in rank or diminution of the employee's salary, benefits and other privileges. In illegal dismissal cases, the employer has the burden of showing that the transfer is not unnecessary, inconvenient and prejudicial to the displaced employee. The constant transfer of bank officers and personnel with accounting responsibilities from one branch to another is a standard practice of Allied Bank, which has more than a hundred branches throughout the country. Allied Bank does this primarily for internal control. It also enables bank employees to gain the necessary experience for eventual promotion. The Bangko Sentral ng Pilipinas, in its Manual of Regulations for Banks and Other Financial Intermediaries, requires the rotation of these personnel. The Manual directs that the "duties of personnel handling cash, securities and bookkeeping records should be rotated" and that such rotation "should be irregular, unannounced and long enough to permit disclosure of any irregularities or manipulations." Galanida was well aware of Allied Bank's policy of periodically transferring personnel to different branches. As the Court of Appeals found, assignment to the different branches of Allied Bank was a condition of Galanida's employment. Galanida consented to this condition when he signed the Notice of Personnel Action. The evidence on record contradicts the charge that Allied Bank discriminated against Galanida and was in bad faith when it ordered his transfer. The employer has the prerogative, based on its assessment of the employees' qualifications and competence, to rotate them in the various areas of its business operations to ascertain where they will function with maximum benefit to the company. Neither was Galanida's transfer in the nature of a demotion.
The refusal to obey a valid transfer order constitutes willful disobedience of a lawful order of an employer. Employees may object to, negotiate and seek redress against employers for rules or orders that they regard as unjust or illegal. However, until and unless these roles or orders are declared illegal or improper by competent authority, the employees ignore or disobey them at their peril. For Galanida's continued refusal to obey Allied Bank's transfer orders, we hold that the bank dismissed Galanida for just cause in accordance with Article 282 (a) of the Labor Code. Galanida is thus not entitled to reinstatement or to separation pay.
REQUIREMENTS. — To be effective, a dismissal must comply with Section 2 (d), Rule 1, Book VI of the Omnibus Rules' Implementing the Labor Code ("Omnibus Rules"), which provides: For termination of employment based on just causes as defined in Article 282 of the Labor Code: (i) A written notice served on the employee specifying the ground or grounds of termination, and giving said employee reasonable opportunity within which to explain his side. (ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him. (iii) A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.
HEARING; DOES NOT REQUIRE ACTUAL HEARING. — On the requirement of a hearing, this Court has held that the essence of due process is simply an opportunity to be heard. An actual hearing is not necessary. The exchange of several letters, in which Galanida's wife, a lawyer with the City Prosecutor's Office, assisted him, gave Galanida an opportunity to respond to the charges against him.
NOTICE OF TERMINATION; MEMO INFORMING EMPLOYER'S DECISION TO DISMISS EMPLOYEE; SUFFICIENT. — A cursory reading of the Memo will show that it unequivocally informed Galanida of Allied Bank's decision to dismiss him. The statement, "please be informed that the Bank has terminated your services effective September 1, 1994 and considered whatever benefit, if any, that you are entitled [to] as forfeited xxx" is plainly worded and needs no interpretation. The Memo also discussed the findings of the Investigation Committee that served as grounds for Galanida's dismissal. The Memo referred to Galanida's "open defiance and refusal" to transfer first to the Bacolod City branch and then to the Tagbilaran City branch. The Memo also mentioned his continued refusal to report for work despite the denial of his application for additional vacation leave. The Memo also refuted Galanida's charges of discrimination and demotion, and concluded that he had violated Article XII of the bank's Employee Discipline Policy and Procedure. The Memo, although captioned "Transfer and Reassignment," did not preclude it from being a notice of termination. The Court has held that the nature of an instrument is characterized not by the title given to it but by its body and contents.
EFFECTIVE ONLY UPON RECEIPT THEREOF. — To be effective, a written notice of termination must be served on the employee. Allied Bank could not terminate Galanida on 1 September 1994 because he had not received as of that date the notice of Allied Bank's decision to dismiss him. Galanida's dismissal could only take effect on 5 October 1994, upon his receipt of the Memo. For this reason, Galanida is entitled to backwages for the period from 1 September 1994 to 4 October 1994. Under the circumstances, we also find an award of P10,000 in nominal damages proper. Courts award nominal damages to recognize or vindicate the right of a person that another has violated. The law entitles Galanida to receive timely notice of Allied Bank's decision to dismiss him. Allied Bank should have exercised more care in issuing the notice of termination.
||| (Allied Banking Corp. v. Court of Appeals, G.R. No. 144412, [November 18, 2003], 461 PHIL 517-543)
EMPLOYER-EMPLOYEE RELATIONSHIPS; CONTRACT OF TERMINATION BETWEEN PETITIONER AND RESPONDENTS MERELY VOIDABLE. — Even assuming arguendo that the RTC has jurisdiction, it is obvious from respondents' own pleadings that their action for the declaration of nullity of the "contract of termination" will not prosper. Respondents allege that they were deceived by SMC into believing that it was under financial distress which, thus, led them into concluding the "contract of termination" with the latter. Respondents then posit that since the cause of the contract, SMC's alleged financial distress, was inexistent, the contract is null and void. The argument is flawed. The fact that SMC was never in financial distress does not, in any way, affect the cause of their "contract of termination." Rather, the fraudulent representations of SMC only affected the consent of respondents in entering into the said contract. If the consent of a contracting party is vitiated by fraud, the contract is not void but, merely, voidable.||| (San Miguel Corp. v. Etcuban, G.R. No. 127639, [December 3, 1999], 377 PHIL 733-750)
A thorough sifting of the pertinent records discloses that the alleged union busting was not substantiated and the supposed non-implementation of the collective bargaining agreement was groundless because the demands of FPWU-NLU, at the time the notice of strike was filed and at the time the union actually struck, were the subject of a pending application for a writ of execution filed by the union in Case No. AB-7933-80 (NCR-CA-8-674-80), which application was granted on April 4, 1986 by the Labor Arbiter. Verily, the strike staged by FPWU-NLU was baseless since it was still pre-mature then for the union to insist on the implementation of the adverted provision of the collective bargaining agreement, which was the subject of a pending writ of execution. Then too, the failure of the union to serve petitioner company a copy of the notice of strike is a clear violation of Section 3 of Rule XXII, Book V of the Rules implementing the Labor Code. The constitutional precepts of due process mandate that the other party be notified of the adverse action of the opposing party. So also, the same Section provides for a mandatory thirty (30) day cooling-off period which the union ignored when it struck on March 3, 1986, before the 30th day from the time the notice of strike was filed on February 10, 1986. What is more, the same strike blatantly disregarded the prohibition on the doing of any act which may impede or disrupt the conciliation proceedings, when the union staged the strike in the early morning of March 3, 1986, the very same day the conciliation conference was scheduled by the former Ministry of Labor.
DIRECT AND PRIMARY RESPONSIBILITY FOR DAMAGE CAUSED BY THE ILLEGAL STRIKE FALL ON THE LOCAL UNION. — Direct and primary responsibility for the damages allegedly caused by the illegal strike sued upon fall on the local union FPWU, being the principal, and not on respondent NLU-TUCP, a mere agent of FPWU-NLU which assisted the latter in filing the notice of strike. Being just an agent, the notice of strike filed by Atty. Eulogio Lerum, the national president of NLU-TUCP, is deemed to have been filed by its principal, the FPWU-NLU. Having thus dismissed the claim for damages against the principal, FPWU-NLU, the action for damages against its agent, respondent NLU-TUCP, and Atty. Lerum, has no more leg to stand on and should also be dismissed.||| (Filipino Pipe and Foundry Corp. v. National Labor Relations Commission, G.R. No. 115180, [November 16, 1999], 376 PHIL 178-190)
7 DAY STRIKE BAN
STRIKE: COOLING OFF PERIOD AND SEVEN DAY STRIKE BAN, MANDATORY — The provisions of Article 264 (c, e, f) and Article 265 of the Labor Code hardly leave any room for doubt that the cooling-off period in Article 264(c) 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 provisions that "in every case," the union shall furnish the MOLE with the results of the voting "at least seven (7) days before the intended strike, subject to the (prescribed) cooling-off period and the 7 day strike ban must both complied with, although a labor union may take a strike vote and report within the statutory cooling-off period.
PURPOSE OF STRIKE NOTICE AND COOLING- OFF PERIOD. — In requiring a strike notice and a cooling-off period, the avowed intent of the law is to provide an opportunity for mediation and conciliation. It thus directs the MOLE " to exert all efforts at mediation and reconciliation to effect a voluntary settlement" during the cooling-off period.
STRIKE VOTE REPORT, PURPOSE. — The submission of the report gives assurance that a strike vote has been taken and that, if the report concerning it is false, the majority of the members can take appropriate remedy before it is too late.
MANDATORY WAITING PERIOD AFTER STRIKE NOTICE AND STRIKE VOTE REPORT; SAME CONSTITUTE REASONABLE RESTRICTIONS AND VALID EXERCISE OF POLICE POWER. — The cooling-off period and the 7 day strike ban after the filing of a strike vote report, as prescribed in Article 264 of the Labor Code, are reasonable restrictions and their impositions is essential to attain the legitimate policy objectives embodied in the law. They constitute a valid exercise of the police power of the state.
ILLEGAL WHEN DECLARED BEFORE THE LAPSE OF MANDATORY COOLING-OFF PERIOD AND THE 7 DAY STRIKE BAN; CASE AT BAR. — The NFSW declared the strike (6) days after filing of strike notice. i.e., before the lapse of mandatory cooling-off period. It is also file with the MOLE before launching the strike a report on the strike vote, when it should have filed such report "at least 7 days before the intended strike." Under the circumstances , the strike stated by petitioner is not in conformity with the law.
- ||| (National Federation of Sugar Workers v. Ovejera, G.R. No. L-59743, [May 31, 1982], 199 PHIL 537-576)
The respondent Secretary of Labor erred in declaring the strike legal. There is no evidence to show that a strike vote had in fact been taken before a strike was called. Even assuming that a strike vote had been taken, the strike called by the Union was illegal because of non-observance by the Union of the mandatory seven-day strike ban counted from the date the strike vote should have been reported to the Department of Labor and Employment up to the time the Union staged the strike on June 17, 1986. In accordance with Art. 264 of the Labor Code,any union officer who knowingly participated in the illegal strike is deemed to have lost his employment status. The commission of the illegal acts during the strike rendered it illegal. However, only officers and leaders of the Union and workers guilty of illegal acts are liable. Such employees are deemed to have lost their employment status in accordance with Art. 264 of the Labor code.
Petitioner substantially complied with the Return to Work Order. The medical examination, NBI, Police and Barangay Clearances as well as the driver's and conductor's/conductress' licenses and photographs required as conditions for reinstatement were reasonable management prerogatives. However, the other requirements imposed as condition for reinstatement were unreasonable considering that the employees were not being hired for the first time, although the imposition of such requirements did not amount to refusal on the part of the employer to comply with the Return to Work Order or constitute illegal lockout so as to warrant payment of backwages to the strikers. If at all, it is the employees' refusal to return to work that may be deemed a refusal to comply with the Return to Work Order resulting in loss of their employment status. As both the employer and the employees were, in a sense, at fault or in pari delicto, the nonreturning employees, provided they did not participate in illegal acts, should be considered entitled to reinstatement. But since reinstatement is no longer feasible, they should be given separation pay computed up to March 8, 1988 (the date set for the return of the employees) in lieu of reinstatement.
||| (First City Interlink Transportation Co., Inc. v. Roldan-Confesor, G.R. No. 106316, [May 5, 1997], 338 PHIL 635-651)
CONCILIATION PROCEEDINGS
To sanction disregard or disobedience by employees of a rule or order laid down by management, on the pleaded theory that the rule or order is unreasonable, illegal, or otherwise irregular for one reason or another, would be disastrous to the discipline and order that it is in the interest of both the employer and his employees to preserve and maintain in the working establishment and without which no meaningful operation and progress is possible. Deliberate disregard or disobedience of rules, defiance of management authority cannot be countenanced. This is not to say that the employees have no remedy against rules or orders they regard as unjust or illegal. They may object thereto, ask to negotiate thereon, bring proceedings for redress against the employer before the Ministry of Labor. But until and unless the rules or orders are declared to be illegal or improper by competent authority, the employees ignore or disobey them at their peril. It is impermissible to reverse the process: suspend enforcement of the orders or rules until their legality or propriety shall have been subject of negotiation, conciliation, or arbitration.
TERMINATION OF EMPLOYMENT ON GROUND OF CONTINUED DEFIANCE OF EMPLOYER'S AUTHORITY, PROPER. — When the strike notice was filed by the union, the chain of events which culminated in the termination of the 14 salespersons' employment was already taking place, the series of defiant refusals by said sales representatives to comply with GTE's requirement to submit individual reports was already in progress. At the time, no less three (3) of the ultimate six (6) direct orders of the employer for the submission of the reports had already been disobeyed. The filing of the strike notice, and the commencement of conciliation activities by the Bureau of Labor Relations did not operate to make GTE's orders illegal or unenforceable so as to excuse continued non-compliance therewith. It does not follow that just because the employees or their union are unable to realize or appreciate the desirability of their employer's policies or rules, the latter were laid down to oppress the former and subvert legitimate union activities. Indeed, the overt, direct, deliberate and continued defiance and disregard by the employees 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.
The production and publication of telephone directories, which is the principal activity of GTE, can scarcely be described as an industry affecting the national interest. GTE is a publishing firm chiefly dependent on the marketing and sale of advertising space for its not inconsiderable revenues. Its services, while of value, cannot be deemed to be in the same category of such essential activities as "the generation or distribution of energy" or those undertaken by "banks, hospitals, and export-oriented industries." It cannot be regarded as playing as vital a role in communication as other mass media. The small number of employees involved in the dispute, the employer's payment of "P10 million in income tax alone to the Philippine government," and the fact that the "top officers of the union were dismissed during the conciliation process," obviously do not suffice to make the dispute in the case at bar one "adversely affecting the national interest."
||| (GTE Directories Corp. v. Sanchez, G.R. No. 76219, [May 27, 1991], 274 PHIL 738-758)
GOOD FAITH STRIKE
A strike may be considered legal when the union believed that the respondent company committed unfair labor acts and the circumstances warranted such belief in good faith although subsequently such allegation of unfair labor practices are found out as not true.
Where the strike of the union was in response to what it was warranted in believing in good faith to be unfair labor practice on the part of the management, said strike following the Ferrer ruling (Ferrer, et al. vs. CIR, et al., L-242678, May 31,1966, 17 SCRA 532) did not result in the termination of the striking members' status as employees and therefore, they are still entitled to reinstatement without backwages. The Ferrer ruling was also upheld in Shell Oil Workers Union vs. Shell Company of the Phil. Ltd. (L-28607, May 31, 1971, 39 SCRA 276). In the case of Pepito vs. Secretary of Labor, L-49418, Feb. 29, 1980, the petitioner therein was separated for having been implicated in a pilferage case by a co-employee but was later absolved from a charge, the Supreme Court thru Chief Justice Fernando ruled that the cause for His dismissal was proved non-existent or false and thus ordered his reinstatement with three years backwages, without deduction and qualification. In the case at bar, following the Pepito ruling the Supreme Court held that petitioners are entitled not only to reinstatement but also to three years backwages without deduction and qualification. This is justified and proper since the strike was proved to be not illegal but was induced in the honest belief that management had committed unfair labor practices and, therefore, the cause of their dismissal from employment was non-existent.
||| (People's Industrial and Commercial Employees and Workers Organization v. People's Industrial and Commercial Corp., G.R. No. L-37687, [March 15, 1982], 198 PHIL 166-183)
NOT A GOOD DEFENSE IN CASE OF PROCEDURAL INFIRMITY
The respondents' claim of good faith is not a valid excuse to dispense with the procedural steps for a lawful strike. As this Court held in National Federation of Labor v. NLRC: Arguing that despite its failure to comply with the statutory requirements necessary for a valid strike, NFL asserts that the same can be declared legal for it was done in good faith, citing the cases of People's Industrial and Commercial Employees and Workers Organization (FFW) v. People's Industrial and Commercial Corp. and Philippine Metal Foundries, Inc. v. Court of Industrial Relations. The reliance is misplaced. People's Industrial did not rule that the procedural steps can be dispensed with even if the union believed in good faith that the company was committing an unfair labor practice. While, it is true that Philippine Metal held that a strike cannot be declared as illegal for lack of notice, however, it is important to note that said case was decided in 1979. At this juncture, it must be stressed that with the enactment of Republic Act No. 6715 which took effect on March 21, 1989, the rule now is that such requirements as the filing of a notice of strike, strike vote, and notice given to the Department of Labor are mandatory in nature. Thus, even if the union acted in good faith in the belief that the company was committing an unfair labor practice, if no notice of strike and a strike vote were conducted, the said strike is illegal. In Lapanday Workers Union v. NLRC, we held that a strike is the most preeminent of the economic weapons of workers which they unsheathe to force management to agree to an equitable sharing of the joint product of labor and capital. But we also emphasized that strikes exert some disquieting effects not only on the relationship between labor and management, but also on the general peace and progress of society, not to mention the economic well-being of the State. It is a weapon that can either breathe life to or destroy the union and members in their struggle with management for a more equitable due of their labors. Hence, the decision to wield the weapon of strike must therefore rest on a rational basis, free from emotionalism, unswayed by the tempers and tantrums of a few hotheads, and firmly focused on the legitimate interest of the union which should not however be antithetical to the public welfare. In every strike staged by a union, the general peace and progress of society and public welfare are involved.||| (Grand Boulevard Hotel v. Genuine Labor Organization of Workers in Hotel, G.R. Nos. 153664 & 153665, [July 18, 2003], 454 PHIL 463-492)
LIABILITY OF COMPANY WHO FAILS TO IMMEDIATELY REINSTATE THE UNION MEMBER FOR PARTICIPATING IN AN ILLEGAL STRIKE
Here, although the Labor Arbiter failed to act on the terminated Union members' motion for reinstatement pending appeal, the Company had the duty under Article 223 to immediately reinstate the affected employees even if it intended to appeal from the decision ordaining such reinstatement. The Company's failure to do so makes it liable for accrued backwages until the eventual reversal of the order of reinstatement by the NLRC on November 8, 1999, a period of four months and nine days. cACTaI
Five. While it is true that generally the grant of separation pay is not available to employees who are validly dismissed, there are, in furtherance of the law's policy of compassionate justice, certain circumstances that warrant the grant of some relief in favor of the terminated Union members based on equity.
Bitter labor disputes, especially strikes, always generate a throng of odium and abhorrence that sometimes result in unpleasant, although unwanted, consequences. Considering this, the striking employees' breach of certain restrictions imposed on their concerted actions at their employer's doorsteps cannot be regarded as so inherently wicked that the employer can totally disregard their long years of service prior to such breach. 26 The records also fail to disclose any past infractions committed by the dismissed Union members. Taking these circumstances in consideration, the Court regards the award of financial assistance to these Union members in the form of one-half month salary for every year of service to the company up to the date of their termination as equitable and reasonable.
||| (C. Alcantara & Sons, Inc. v. Court of Appeals, G.R. Nos. 155109, 155135 & 179220, [September 29, 2010], 646 PHIL 105-122)
EFFECT OF A NO STRIKE/LOCK-OUT CLAUSE IN CBA
When a union declares a strike in the belief that the dismissal of the president was due to union activities, said strike is not illegal. It is not even required that there be in fact an unfair labor practice committed by the employer. It suffices, if such a belief in good faith is entertained by labor, as the inducing factor for staging a strike.
"NO STRIKE" CLAUSE APPLICABLE ONLY TO ECONOMIC STRIKES. — A strike declared due to unfair labor practice of the employer is not a violation of the "no strike" clause of the Collective Bargaining Agreement. Moreover, a no strike clause prohibition in a Collective Bargaining Agreement is applicable only to economic strikes.
NOTICE OF STRIKE. — In strikes arising out of and against a company's unfair labor practice, a strike notice is not necessary in view of the strike being founded on urgent necessity and directed against practices condemned by public policy, such notice being legally required only in cases of economic strikes.
||| (Philippine Metal Foundries, Inc. v. Court of Industrial Relations, G.R. Nos. L-34948-49, [May 15, 1979], 179 PHIL 109-117)
When a union declares a strike in the belief that the dismissal of the president was due to union activities, said strike is not illegal. It is not even required that there be in fact an unfair labor practice committed by the employer. It suffices, if such a belief in good faith is entertained by labor, as the inducing factor for staging a strike.
"NO STRIKE" CLAUSE APPLICABLE ONLY TO ECONOMIC STRIKES. — A strike declared due to unfair labor practice of the employer is not a violation of the "no strike" clause of the Collective Bargaining Agreement. Moreover, a no strike clause prohibition in a Collective Bargaining Agreement is applicable only to economic strikes.
NOTICE OF STRIKE. — In strikes arising out of and against a company's unfair labor practice, a strike notice is not necessary in view of the strike being founded on urgent necessity and directed against practices condemned by public policy, such notice being legally required only in cases of economic strikes.
||| (Philippine Metal Foundries, Inc. v. Court of Industrial Relations, G.R. Nos. L-34948-49, [May 15, 1979], 179 PHIL 109-117)
As this Court has held in Philippine Metal Foundries, Inc. vs. CIR (90 SCRA 135 [1979]), a no-strike clause in a CBA is applicable only to economic strikes. Corollarily, if the strike is founded on an unfair labor practice of the employer, a strike declared by the union cannot be considered a violation of the no-strike clause. An economic strike is defined as one which is to force wage or other concessions from the employer which he is not required by law to grant (Consolidated Labor Association of the Philippines vs. Marsman & Co., Inc., 11 SCRA 589 [1964]). In this case, petitioners enumerated in their notice of strike the following grounds: violation of CBA or the Corporation's practice of subcontracting workers; discrimination; coercion of employees; unreasonable suspension of union officials, and unreasonable refusal to entertain grievance. Professor Perfecto Fernandez, in his book Law on Strikes, Picketing and Lockouts (1981 edition, pp. 144-145), states that an economic strike involves issues relating to demands for higher wages, higher pension or overtime rates, pensions, profit sharing, shorter working hours, fewer work days for the same pay, elimination of night work, lower retirement age, more healthful working conditions, better health services, better sanitation and more safety appliances. The demands of the petitioners, being covered by the CBA, are definitely within the power of the Corporation to grant and therefore the strike was not an economic strike.||| (Master Iron Labor Union v. National Labor Relations Commission, G.R. No. 92009, [February 17, 1993])
Professors and/or instructors of the University neither ceased to be employees when they struck, for Section 2 of Republic Act No. 875 includes among employees any individual whose work has ceased as a consequence of, or in connection with a current labor dispute. Striking employees maintain their status as employees of the employer||| (Feati University v. Bautista, G.R. Nos. L-21278, L-21462 & L-21500, [December 27, 1966], 125 PHIL 326-371)
EXTEND OF DISCRETION
Anent the Union's Motion, we find that superseding circumstances would not warrant the physical reinstatement of the twelve (12) terminated employees. Hence, they are hereby ordered placed under payroll reinstatement until the validity of their termination is finally resolved.
As an exception to the rule, payroll reinstatement must rest on special circumstances that render actual reinstatement impracticable or otherwise not conducive to attaining the purposes of the law.
The "superseding circumstances" mentioned by the Acting Secretary of Labor no doubt refer to the final decision of the panel of arbitrators as to the confidential nature of the positions of the twelve private respondents, thereby rendering their actual and physical reinstatement impracticable and more likely to exacerbate the situation. The payroll reinstatement in lieu of actual reinstatement ordered in these cases, therefore, appears justified as an exception to the rule until the validity of their termination is finally resolved.
||| (University of Immaculate Concepcion, Inc. v. Secretary of Labor, G.R. No. 151379, [January 14, 2005], 489 PHIL 173-185)
AWARD HIGHER THAN WHAT WAS AGREED UPON
It is well-settled that the Secretary of Labor, in the exercise of his power to assume jurisdiction under Art. 263 (g) of the Labor Code, may resolve all issues involved in the controversy including the award of wage increases and benefits. While an arbitral award cannot per se be categorized as an agreement voluntarily entered into by the parties because it requires the intervention and imposing power of the State thru the Secretary of Labor when he assumes jurisdiction, the arbitral award can be considered an approximation of a collective bargaining agreement which would otherwise have been entered into by the parties, hence, it has the force and effect of a valid contract obligation.
That the arbitral award was higher than that which was purportedly agreed upon in the MOA is of no moment. For the Secretary, in resolving the CBA deadlock, is not limited to considering the MOA as basis in computing the wage increases. He could, as he did, consider the financial documents submitted by respondent as well as the parties' bargaining history and respondent's financial outlook and improvements as stated in its website.
||| (Cirtek Employees Labor Union-Federation of Free Workers v. Cirtek Electronics, Inc., G.R. No. 190515, [November 15, 2010], 649 PHIL 255-262)
MAY NOT UNAUDITED FINANCIAL STATEMENT AS BASIS FOR DECISION REGARDING WAGE INCREASES
Thus, we rule that the Secretary of Labor gravely abused her discretion when she relied on the unaudited financial statements of petitioner corporation in determining the wage award because such evidence is self-serving and inadmissible. Not only did this violate the December 19, 2003 Order of the Secretary of Labor herself to petitioner corporation to submit its complete audited financial statements, but this may have resulted to a wage award that is based on an inaccurate and biased picture of petitioner corporation's capacity to pay — one of the more significant factors in making a wage award. Petitioner corporation has offered no reason why it failed and/or refused to submit its audited financial statements for the past five years relevant to this case. This only further casts doubt as to the veracity and accuracy of the unaudited financial statements it submitted to the Secretary of Labor. Verily, we cannot countenance this procedure because this could unduly deprive labor of its right to a just share in the fruits of production and provide employers with a means to understate their profitability in order to defeat the right of labor to a just wage.||| (Asia Brewery, Inc. v. Tunay na Pagkakaisa ng mga Manggagawa sa Asia, G.R. Nos. 171594-96, [September 18, 2013], 718 PHIL 33-54)
ASSUMPTION AND CERTIFICATION ORDERS
The Secretary was explicitly granted by Article 263(g) of the Labor Code the authority to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, and decide the same accordingly. Necessarily, this authority to assume jurisdiction over the said labor dispute must include and extend to all questions and controversies arising therefrom, including cases over which the labor arbiter has exclusive jurisdiction.||| (International Pharmaceuticals, Inc. v. Secretary of Labor, G.R. No. 92981-83, [January 9, 1992], 282 PHIL 68-80)
It is, therefore, evident from the foregoing that the Secretary's subsequent order for mere payroll reinstatement constitutes grave abuse of discretion amounting to lack or excess of jurisdiction. Indeed, this Court has always recognized the "great breadth of discretion" by the Secretary once he assumes jurisdiction over a labor dispute. However, payroll reinstatement in lieu of actual reinstatement is a departure from the rule in these cases and there must be showing of special circumstances rendering actual reinstatement impracticable, as in the UST case aforementioned, or otherwise not conducive to attaining the purpose of the law in providing for assumption of jurisdiction by the Secretary of Labor and Employment in a labor dispute that affects the national interest. None appears to have been established in this case. Even in the exercise of his discretion under Article 236(g), the Secretary must always keep in mind the purpose of the law. Time and again, this Court has held that when an official by-passes the law on the asserted ground of attaining a laudable objective, the same will not be maintained if the intendment or purpose of the law would be defeated. ||| (Manila Diamond Hotel Employees' Union v. Court of Appeals, G.R. No. 140518, [December 16, 2004], 488 PHIL 100-109)
HEARING NOT NECESSARY
Before the Secretary of Labor and Employment may take cognizance of an issue which is merely incidental to the labor dispute, therefore, the same must be involved in the labor dispute itself, or otherwise submitted to him for resolution. If it was not, as was the case in PAL v. Secretary of Labor and Employment, supra, and he nevertheless acted on it, that assumption of jurisdiction is tantamount to a grave abuse of discretion. Otherwise, the ruling in International Pharmaceuticals, Inc. v. Secretary of Labor and Employment, supra, will apply. The submission of an incidental issue of a labor dispute, in assumption and/or certification cases, to the Secretary of Labor and Employment for his resolution is thus one of the instances referred to whereby the latter may exercise concurrent jurisdiction together with the Labor Arbiters.||| (St. Scholastica's College v. Torres, G.R. No. 100158, [June 29, 1992], 285 PHIL 1103-1119)
We agree with respondents' contention that mere participation of union members in an illegal strike should not automatically result in their termination from employment. However, the case at bar involves a different issue as a perusal of the records shows that respondents were terminated from employment by reason of their defiance to the return-to-work order of the Secretary of Labor. Respondents staged a strike on January 3 and 4, 1985 or fourteen (14) days after then Labor Minister Ople assumed jurisdiction over the dispute between them and the bank. Thereafter, respondents again staged a strike from February 11 up to March 11, 1985 while their labor dispute with the Bank was still pending before Minister Ople. In the case of Union of Filipro Employees v. Nestle Philippines, Inc., we ruled that a strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus, illegal, pursuant to Article 264 (a) of the Labor Code. Moreover, the union officers and members who have participated in the said illegal activity, are, as a result, deemed to have lost their employment status. In the cases of Sarmiento v. Tuico, and Asian Transmission Corporation v. National Labor Relations Commission, we explained the rationale for this rule: "It is also important to emphasize that the return-to-work order not so much confers a right as it imposes a duty; and while as a right it may be waived, it must be discharged as a duty even against the worker's will. Returning to work in this situation is not a matter of option or voluntariness but of obligation. The worker must return to his job together with his co-workers so the operations of the company can be resumed and it can continue serving the public and promoting its interest. That is the real reason such return can be compelled. So imperative is the order in fact that it is not even considered violative of the right against involuntary servitude, as this Court held in Kaisahan Ng Mga Manggagawa sa Kahoy v. Gotamco Sawmills. The worker can of course give up his work, thus severing his ties with the company, if he does not want to obey the order; but the order must be obeyed if he wants to retain his work even if his inclination is to strike." This principle was reiterated in the case of St. Scholastica's College v. Torres, wherein we cited the case of Federation of Free Workers v. Inciong, and held that: "A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 264 of the Labor Code as amended. . . . The Union officers and members, as a result, are deemed to have lost their employment status for having knowingly participated in an illegal act. Hence, respondents' failure to immediately comply with the return-to-work order dated December 16, 1984 and January 6, 1985 cannot be condoned.
RULE THAT DEFIANCE OF THE RETURN-TO-WORK ORDER OF THE SECRETARY OF LABOR CONSTITUTES A VALID GROUND FOR DISMISSAL MUST BE STRICTLY ADHERED TO; GOOD FAITH ON THE PART OF A PARTICIPANT IN SAID ILLEGAL ACTIVITY IS NO DEFENSE. — Respondents also contend that there is nothing to prove that they knowingly participated in an illegal strike. Private respondents' contentions are belied by the records as there was an assumption order already issued by the Ministry of Labor when they first conducted a strike on January 3 and 4, 1985, and this assumption order is manifested in their answer dated September 26, 1985, which was summarized in the Decision of the Labor Arbiter dated September 4, 1992. They also cited the cases of Insular Life Assurance Co. Ltd. Employees Association - NATU v. The Insular Life Assurance Co. Ltd. and the case of RCPI v. Philippine Communications Electronics & Electricity Worker's Federation, wherein we held that mere failure to report for work after notice to return, does not constitute abandonment nor bar reinstatement. Private respondents, however, failed to take into consideration the cases recently decided by this Court which emphasized on the strict adherence to the rule that defiance of the return-to-work order of the Secretary of Labor would constitute a valid ground for dismissal.
NON-COMPLIANCE WITH AN ASSUMPTION OR CERTIFICATION ORDER AUTHORIZES THE DEPARTMENT OF LABOR AND EMPLOYMENT TO IMPOSE SUCH SANCTIONS AS MAY BE PROVIDED FOR BY LAW. — Furthermore, as non-compliance with an assumption or certification order is considered as an illegal act committed in the course of a strike, the Ministry of Labor and Employment (now DOLE) is authorized to impose such sanctions as may be provided for by law which may include the hiring of replacements for workers defying the order.
THIS COURT'S COMPASSION TO THE PLIGHT OF WORKERS SHOULD BE COUPLED WITH A RESPECT OF THE EMPLOYER'S RIGHT UNDER THE LAW. — Respondents also contend that the NLRC should have adopted a liberal approach favoring labor which this Court has upheld in its decisions and that the employers are urged to be more compassionate as to their workers' needs. We agree with respondents' contention that this Court should view with compassion the plight of the workers. However, this sense of compassion should be coupled with a sense of fairness and justice to the parties concerned. Hence, while social justice has an inclination to give protection to the working class, the cause of the labor sector is not upheld at all times as the employer has also a right entitled to respect in the interest of simple fair play.
||| (Allied Banking Corp. v. National Labor Relations Commission, G.R. Nos. 116128 & 116461, [July 12, 1996], 328 PHIL 252-288)
Since, as correctly found by the Secretary of Labor, the strikers were not illegally dismissed, the COMPANY is under no obligation to pay backwages to them. It is simply inconsistent, nay, absurd, to award backwages when there is no finding of illegal dismissal (Filflex Industrial and Manufacturing Corporation, 286 SCRA 245). xxx when the record shows that the striking workers did not comply with lawful orders for them to return to work during said periods of time. In fact, the Secretary of Labor observed that while "it was obligatory on the part of both parties to restore, in the meantime, the status quo obtaining in the workplace", the same "was not possible considering the strikers had defied the return-to-work Order of this Office" (p. 8, Ibid). With such blatant disregard by the strikers of official edicts ordering their "temporary reinstatement", there is no basis to award them backwages corresponding to said time frames. Otherwise, they will recover something they have not or could not have earned by their willful defiance of the return-to-work order, a patently incongruous and unjust situation (Santos v. National Labor Relations Commission, 154 SCRA 166).
RUN-AWAY SHOP
In Philippine Association of Free Labor Unions (PAFLU) v. Cloribel, this Court, through Justice J.B.L. Reyes, stated the "innocent bystander" rule as follows: 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. If peacefully carried out, it can not be curtailed even in the absence of employer-employee relationship. The right is, however, not an absolute one. While peaceful picketing is entitled to protection and an exercise of free speech, we believe the 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 picketing union or constitute an invasion of their rights. Thus, an "innocent bystander," who seeks to enjoin a labor strike, must satisfy the court that aside from the grounds specified in Rule 58 of the Rules of Court, it is entirely different from, without any connection whatsoever to either party to the dispute and, therefore, its interests are totally foreign to the context thereof. In the case at bar, petitioner cannot be said not to have such connection to the dispute.||| (MSF Tire & Rubber, Inc. v. Court of Appeals, G.R. No. 128632, [August 5, 1999], 370 PHIL 824-836)
It is quite clear that the jurisdiction of shop stewards and the supervisors includes the determination of the issues arising from the interpretation or even implementation of a provision of the CBA, or from any order or memorandum, circular or assignments issued by the appropriate authority in the establishment. In fine, they are part and parcel of the continuous process of grievance resolution designed to preserve and maintain peace among the employees and their employer. They occupy positions of trust and laden with awesome responsibilities.
In this case, instead of playing the role of "peacemakers" and grievance solvers, the petitioners-shop stewards participated in the strike. Thus, like the officers and directors of petitioner Union who joined the strike, petitioners-shop stewards also deserve the penalty of dismissal from their employment.
||| (Santa Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Phils., Inc., G.R. Nos. 164302-03, [January 24, 2007], 541 PHIL 421-448)
