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4. The result of the strike vote should be reported to NCMB at least 7 days
before the intended strike or lockout, subject to the cooling off period
It is settled that these requirements are mandatory in nature and failure to comply
therewith renders the strike illegal.
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 DOLE an opportunity to verify whether the projected strike really carries
the approval of the majority of the union members.
Moreover, there was no union busting which would warrant the non-observance of the
cooling-off period. To constitute union busting under Art 263 Labor Code, there
must be:
1) a dismissal from employment of union officers duly elected in accordance
with the union constitution and by-laws; and
2) the existence of the union must be threatened by such dismissal. In the
case at bar, the second notice of strike filed by the Union merely assailed
the "mass promotion" of its officers and members during the CBA
negotiations. Surely, promotion is different from dismissal.
Art 264 Labor Code provides: No strike or lockout shall be declared after assumption of
jurisdiction by the President or the Secretary or after certification or submission of the
dispute to compulsory or voluntary arbitration or during the pendency of cases involving
the same grounds for the strike or lockout. Any workers whose employment has been
terminated as a consequence of an unlawful lockout shall be entitled to reinstatement
with full back wages. Any union officer who knowingly participates in 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.
The effects of illegal strikes, as outlined in Art 264 Labor Code, make a distinction
between ordinary workers and union officers who participate therein. Under established
jurisprudence, a union officer may be terminated from employment for knowingly
participating in an illegal strike. The fate of union members is different. Mere
participation in an illegal strike is not a sufficient ground for termination of the services of
the union members. The Labor Code protects ordinary, rank-and-file union members
who participated in such a strike from losing their jobs provided that they did not commit
illegal acts during the strike.
Here, the union cannot claim good faith in the conduct of the strike because, as can be
gleaned from the findings of the Labor Arbiter, this was an extensively coordinated
strike having been conducted all throughout the offices of PILTEL all over the country.
Evidently, the strike was planned.
UNION OF FILIPRO EMPLOYEES V. NLRC AND NESTLE PHILS 192 SCRA 396
(1990)
FACTS: Petitioner Union of Filipro Employees (UFE) alleged that public respondent
NLRC had acted with grave abuse of discretion in affirming the decision of LA declaring
the strikes staged by UFE as illegal
1. UFE filed a notice of strike on November 14, 1985 with BLR against Nestle. UFE
subsequently filed a complaint for unfair labor practices against the respondent
company on the ground of violation of Art 94 Labor Code on Holiday pay, nonimplementation of the CBA provisions, etc
2. Upon petition, the Minister of Labor and Employment assumed jurisdiction over
the instant labor disputed and issued an order enjoining both parties from
performing any strike, lockout or any other form of concerted action which tend to
disrupt the company operations
3. UFE then filed a petition for certiorari with prayer for issuance of TRO assailing
the jurisdiction of the Minister
4. Despite this, the union members and its officers, in clear defiance of the
Ministers order, staged a strike and continued to man the picket lines of the
companys premises
5. Nestle, then, filed a petition to declare the strike illegal based on violation of the
CBA provisions on no strike/no lockout clause and the grievance machinery
provisions on settlement of disputes
ISSUE: Won the strike was illegal
HELD: No. As provided in Art 264 (g) Labor Code, assumption and certification orders
are executory in character and are to be strictly complied with by the parties even during
the pendency of any petition questioning their validity. This extraordinary authority given
to the Secretary of Labor is aimed at arriving at a peaceful and speedy solution to labor
disputes without jeopardizing national interests
Regardless of their motives or the validity of their claims, UFE must cease and desist
from any and all acts that tend to undermine this authority of the Secretary of Labor,
once an assumption and/or certification order is issued. They cannot, for instance,
ignore return to work orders, citing unfair labor practices on the part of the company to
justify their actions.
Moreover, the strike was considered illegal by NLRC on the following reasons:
1. The strike was staged in violation of the existing CBA provisions on no strike/no
lockout, which is illegal especially when such terms provide for conclusive
arbitration clause
2. Instead of exhausting all the steps provided for in the grievance machinery in the
CBA to resolve the dispute amicably and harmoniously within the plant level,
UFE went on strike
3. The prescribed mandatory cooling-off period and then 7-day strike and after
submission of the report of strike vote at Nestles office were not complied with.
4. In carrying out the strike, coercion, force, intimidation, violence with physical
injuries, sabotage, and the use of unnecessary and obscene language or
epithets were committed by the union members and officers. Such manner in
conducting a strike is illegal
suffered business setbacks in its income projections. To sustain the Company's position
is like hanging the proverbial sword of Damocles over the Union's right to concerted
activities, ready to fall when the latter clamors for better terms and conditions of
employment.
Petitioner contends that public respondent committed grave abuse of discretion when
he ordered that the new CBA which the parties will sign shall retroact to January 1,
1996. Invoking the provisions of Article 253-A of the Labor Code, petitioner insists that
public respondent's discretion on the issue of the date of the effectivity of the new CBA
is limited to either: (1) leaving the matter of the date of effectivity of the new CBA to the
agreement of the parties or (2) ordering that the terms of the new CBA be prospectively
applied.
Secretary assumed jurisdiction over the dispute because it is impressed with
national interest. As noted by the Secretary, "the petitioner corporation was then
supplying the sulfate requirements of MWSS as well as the sulfuric acid of
NAPOCOR, and consequently, the continuation of the strike would seriously
affect the water supply of Metro Manila and the power supply of the Luzon Grid."
Such authority of the Secretary to assume jurisdiction carries with it the power to
determine the retroactivity of the parties' CBA.
It is well settled in our jurisprudence that the authority of the Secretary of Labor
to assume jurisdiction over a labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to national interest includes and extends to
all questions and controversies arising therefrom. The power is plenary and
discretionary in nature to enable him to effectively and efficiently dispose of the
primary dispute.
To deprive respondent Secretary of such power and discretion would run counter to the
well-established rule that all doubts in the interpretation of labor laws should be resolved
in favor of labor. In upholding the assailed orders of respondent Secretary, this Court is
only giving meaning to this rule. Indeed, the Court should help labor authorities in
providing workers immediate benefits, without being hampered by arbitration or litigation
processes that prove to be not only nerve-wracking but financially burdensome in the
long run.
of actual reinstatement. Petitioner correctly pointed out that labor disputes naturally
involve strained relations between labor and management, and that in most strikes, the
relations between the strikers and the non-strikers will similarly be tense. Nevertheless,
the government must still perform its function and apply the law, especially if, as in this
case, national interest is involved.
As a general rule, the State encourages an environment wherein employers and
employees themselves must deal with their problems in a manner that mutually suits
them best. This is the basic policy embodied in Article XIII, Section 3 of the Constitution,
which was further echoed in Art 211 Labor Code. Hence, a voluntary, instead of
compulsory, mode of dispute settlement is the general rule.
However, Art 263 (g) Labor Code, which allows the Secretary of Labor to assume
jurisdiction over a labor dispute involving an industry indispensable to the
national interest, provides an exception. This provision is viewed as an exercise of
the police power of the State. A prolonged strike or lockout can be inimical to the
national economy and, therefore, the situation is imbued with public necessity and
involves the right of the State and the public to self-protection.
It is, therefore, evident that the Secretarys subsequent order for mere payroll
reinstatement constitutes grave abuse of discretion amounting to lack or excess of
jurisdiction.
illegal strike. There must be proof that he committed illegal acts during a strike. A
union officer, on the other hand, may be terminated from work when he
knowingly participates in an illegal strike, and like other workers, when he
commits an illegal act during a strike.
However, mere filing of charges against an employee for alleged illegal acts
during a strike does not by itself justify his dismissal. The charges must be
proved at an investigation duly called where the employee shall be given an
opportunity to defend himself. This is true even if the alleged ground constitutes
a criminal offense.
Thus to exclude union officers, shop stewards and those with pending criminal charges
in the directive to the company to accept back the striking workers without first
determining whether they knowingly committed illegal acts would be tantamount to
dismissal without due process of law. The Secretary of Labor gravely abused his
discretion in excluding union officers, shop stewards and those with pending criminal
charges in the order to the company to accept back the striking workers pending
resolution of the issue involving the legality of the strike.