1. GRIEVANCES a grievance is any question by either the employer or the union regarding the interpretation or application of the CBA or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies a CBA will not be registered with the DOLE if it does not contain a provision on grievance procedure or machinery which is a must provision required of all CBAs. In case a CBA is submitted without such provision, the registrar should advise the parties to include a grievance procedure / machinery therein before it is considered duly registered2. By-passing the Grievance Machinery: U.L.P. all grievances are compulsorily subject to the grievance machinery. Such requirement being an extension of the parties duty to bargain, the violation of which amounts to unfair labor practice (ULP) An aggrieved employee must exhaust all the remedies (grievance procedure/machinery) available to him under the bargaining contract before he can resort to the courts for the enforcement of his individual rights under such contract A strike is illegal if such was carried out notwithstanding the provisions of the existing CBA which provides for a specific procedure in dealing with grievances of union members or simply stated, when such procedure was not availed of before the strike was declared Procedure for dismissal of employees in the CBA must be observed even if such dismissal is with cause. Absent such adherence, the purported dismissal for just cause is invalid, particularly when the company acted post haste and without affording the employee the time and opportunity to present his side A grievance may be brought directly to voluntary arbitration without passing through the grievance machinery, especially when: the grievance machinery has been proven to be ineffective in the past, or when the parties inadvertently failed to include a grievance machinery provision in their CBA3. Waiver of Grievance Machinery Procedure and Submission to VA By submission agreement, the EE and ER agreed to submit the case to the VA. VA resolved in favor of the EE. On the appeal, it was reversed by the CA because it considered the waiver of EE. CA considered it as relinquishment of EEs right. VA, then, has no jurisdiction Ruling: There was no relinquishment of right. Voluntary arbitration as a mode of settling dispute was not forced upon respondents.4. Structure and Procedure In the absence of applicable provision in CBA: A grievance committee shall be created within 10 days. GR: Compose of at least 2 representatives from each members of bargaining unit designated by the union and ER. EXC: unless agreed by the parties5. Procedure in handling Grievances In the absence of applicable provision in CBA and company practice: Present grievance or complain to shop steward Shop steward will verify if the complaint/grievance is valid If valid, bring the complain to immediate supervisor of the complainant They will exert efforts to settle at their level If no settlement is reached, it will be referred to grievance committee The GC has 10 days to decide Note: applies to interpretation or implementation of CBA, or order from appropriate authority of in the establishment6. Voluntary Arbitration If the grievance is remained unresolved, EITHER PARTY may serve notice upon the other of its decision to submit decision to voluntary arbitration. Notice shall state the issue or issues to be arbitrated Copy of such shall be furnished to: Board or VA or Panel of VAs named in the CBA. If the party upon whom the notice is served fails or refuses to respond w/in 7 days, VA shall commence the voluntary arbitration When CBA does not designate, the parties will be called and appoint VA If parties fails to select, the regional branch of the Board shall designated The parties are afforded to the latitude to decide for themselves the composition of the GMLabor Arbitration the reference of labor dispute to the third person for determination on basis of evidence and arguments presented by the parties who are bound to accept the decision.Voluntary Arbitration a contractual proceeding whereby the parties to any dispute or controversy, in order to achieve speedy and inexpensive settlement, select their own judge of their own choice and by consent submit their controversy to him for determination.Compulsory arbitration is the process of settlement of labor dispute by a government agency which has the power to investigate and make an award binding upon the parties.7. Voluntary arbitration: a private judicial system Voluntary arbitration is a part of a system of self-government created and confined to the parties. They select their own judge and fix their own procedure.8. Voluntary arbitration, a master procedure Any and all kinds of labor dispute may be submitted to voluntary arbitration. Voluntary arbitration takes precedence over other dispute settlement devises. a case filed in LA, SOLE or NLRC can be withdrawn and lodge it instead to VA9. Powers and duties of VA or panel of VAs Varying degrees of power of VA depends on CBA.

8.3a Power to arbitrate any dispute8.3b No power to add to or subtract from the contractVA is empowered only to interpret the contract not to add or modify it.As a GR, authority of VA:General authority to investigate and hear case upon notice to the parties and to render an award based on the contract and record of the case; Incidental authority to perform all acts, necessary to an adequate discharge of his duties and responsibilities. Ex setting and conduct of hearing;Special powers in aid of his general contractual authority like the authority to determine arbitrability of any particular dispute and to modify any provision of existing agreement upon which a proposed change is submitted for arbitration;Authority to issue writ of execution.

Power in GeneralUnder the NCMB guidelines:To require any person to attend hearingTo subpoena witness and receive documentsTo take whatever action to resolve the issue subject to dispute (except ipaduel ang parties hakhak)To issue writ of execution

Adjudicatory powerPersonally hold hearingsReceive evidenceTo take whatever action to resolve the issue subject to disputeMust initiative in reconciling apparent contradictions

Compulsory powerTo require any person to attend hearingTo subpoena witness and receive documents

Duty to conciliate and mediate

8.4 Functions of arbitratorVA performs functions which are not normal to the courts, and the considerations which help him to fashion his judgment maybe foreign to the competence of the court because dispute ate the plant level require knowledge of the custom and practices of a particular factory or industry as reflected in particular agreement. The VAs power is contractual rather than judiciary in nature because such power is derived from the agreement of the parties.

8.5 Binding effectVAs decision is same legal effects as judgement in the court. Res judicata is applicable.

8.6 Period to render the arbitration awardGR: 20 calendar days from the date of submission of the case for resolutionExc: Unless the parties agreed otherwiseOr 30 days in labor dispute causing or likely to cause strike or lock-out in an industry indispensable to national interest.NB: VAs decision shall be final executory after 10 days from receipt thereof by the parties.Failure of VA to render judgement within prescribe days is a sufficient ground to discipline the VA upon filing of complaint to NCMB of a party.In case the sanction of erring VA is delisting, it shall be unlawful for VA to refuse or fail to turn-over to NCMB the records of the case within 10 days.

8.7 Rules of procedure governing voluntary arbitrationGR: rules are subject of agreement among the parties to a labor dispute and their chosen arbitrator.EXC: absence of agreement, NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings, October 15, 2004 and Rules of Court shall apply by analogy, directory or suppletory.

Notes:Guidelines should be liberally construed.While the intendment of law is to favor the EE, it no way implies ER is not entitled to due process. ER right to be heard is a matter of great concern. (Unicraft Industries International Corporation vs CA, GR 134903)

9. Who may be accredited as voluntary arbitratorMinimum requirements:Filipino citizen residing in PhilippinesHolder of a Bachelors degreeAt least 5 years experience in labor-management relationsCompletion of a training course on voluntary arbitration conducted by the BoardA person of a good moral character

10. How voluntary arbitrator is chosenVA is chosen by the parties by mutual agreement. Parties can choose preferably the accredited ones. The choice is usually influenced by the trust of in the persons fairness and knowledge of the dynamics, including in law, of labor-management relations.Temporary or ad hoc arbitrator is selected when a dispute is already at hand. He is to arbitrate specific or specific group of dispute and there is no commitment to select him again. Permanent arbitrator is one who is selected before the dispute arises, usually durong the negotiation of CBA. He is to serve a period of time.

11. Distinguished from a court of lawVoluntary ArbitrationRegular courts

InformalNot obliged to follow stare decisisRules of evidence are not followed.No comparable appeal recourseNot technical and relatively not expensive procedure

FormalFollows doctrine of stare decisisDecision may be appealedRules of court applies technically

ARTICLE 273 [261]. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY ARBITRATORSThe Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement.

The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement.

ARTICLE 274 [262]

The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.

Arbitrable disputes2 kinds of disputes:Contract-negotiation disputesDisputes as to the terms of a collective bargainingExample: when impasse or bargaining deadlock has risenAKA arbitration of interestContract interpretation disputes Disputes arising under existing CBAInvolves interpretation, application of the contract, or alleged violation of its provisionsAKA arbitration of grievance or rightsNote:Usual CBA arbitration clauses provides interpretation of contractFew only for arbitration of interestWhen terms and agreement are in dispute, they usually submit in a special contract called submission agreement

Jurisdiction of LA and VAContextual and wholistic analysis of LA and VA by Justice Purisima in San Jose vs. NLRC:Includes money claims in one form or anotherLAs original and exclusive Article 224; VA Article 273

24) Miralles 527-541ART. 274

continuation of Jurisdiction of L.A. and V.A. from page 526

3. The original and exclusive jurisdiction of Labor arbiters is qualified by an exception as indicate3d in the introductory sentence of Article 224 (a). The phrase Except as otherwise provided under this Code refers to the following exceptions:

Art. 224 (c) Cases arising from the interpretation or implementation of collective bargaining agreement and those arising from the interpretation or enforcement of company procedure/policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitrator as may be provided in said agreement.

Article 273The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.

4. A. The original and exclusive jurisdiction of Voluntary Arbitrator or Panel of Voluntary Arbitrators is limited only to unresolved grievances arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies Accordingly, violations of a CBA, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the CBA

Voluntary arbitrators or Panel of Voluntary Arbitrators, however, can exercise jurisdiction over any and all disputes between an employer and a union and/or individual worker as provided for in Art. 274.

It must be emphasized that the jurisdiction of the VA or Panel of Vas under Article 262 must be voluntarily conferred by both labor and management. The labor disputes referred to in the same Article 274 can include any or all of those disputes mentioned in Article 224 which ordinarily are under LAs original and exclusive jurisdiction.

2.1 Jurisdiction Over Termination DisputesThe preference or bias of the law in favor of voluntary arbitration justifies the view that employment termination disputes, arising from CBA or personnel policy implementation, are cognizable by a voluntary arbitrator and not a labor arbiter. Such termination cases, if filed with a labor arbiter, is to be dismissed for lack of jurisdiction and referred to the concerned NCMB Regional Branch for appropriate action. But this referral by the labor arbiter presupposes that the parties had agreed in unequivocal language that the termination dispute should be submitted to grievance machinery and voluntary arbitration. Without such explicit agreement, the labor arbiter may hear and decide the case.It need not be mentioned that the parties to a CBA are the union and the company. Hence, only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators. In the Sanyo case, the dispute is between the union and the company, on the one hand, and some union and non-union members who were dismissed, on the other hand. No grievance between the company and the union exists which could be brought to a grievance machinery. Since there has already been an actual termination, the matter falls within the jurisdiction of the LA. It can thus be deduced that only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators.

2.1 a Policies, Rules, ProceduresCompany personnel policies are guiding principles stated in broad, long-range terms that express the philosophy or beliefs of an organizations top authority regarding personnel matters. The usual source of grievances, however, are the rules and regulations governing disciplinary actions.Company policies must be issued by top management which is responsible for making major policies that are by their nature company-wide in application.Minor policies, better known as rules and procedures, are the extension of major policies and are usually formulated by minor executives or department managers. Rules are specific guides intended to govern conduct and action of operating supervisors and employees in the performance of their designated activities.

2.2 Jurisdiction Over CBA ViolationsCBA violations not constituting U.L.P are likewise cognizable by a voluntary arbitrator if not resolved through the grievance machinery. If the violations, however, are gross in character, these are to be treated as unfair labor practice which, following Art. 224 (a-1), are to be heard and decided by a labor arbiter. Gross violations refer to flagrant and/or malicious refusal to comply with the economic provisions of the CBA. Yet, even in gross violation cases, the parties are allowed by Art. 274 to submit the ULP case to a voluntary arbitrator. In fact, even bargaining deadlocks and all other disputes may, by agreement of the parties, be submitted to a voluntary arbitrator.Thus, in Silva vs Philtread, the court says that for a ULP case to be cognizable by the LA, and the NRLC, to exercise its appellate jurisdiction, the allegations in the complaint should show prima facie the concurrence of two things, namely: (1) gross violation of the CBA; and (2) the violation pertains to the economic provisions of the CBA.

2.2a Gross Violation Per Se of the CBA Constitutes U.L.PReference to the economic provisions of the CBA is not a necessary element of U.L.P. where the employer in effect totally disregarded the subsisting CBA. The pronouncement in Silva, should not be construed to apply to violations of the CBA which can be considered as gross violations per se, such as utter disregard of the very existence of the CBA itself such as when an employer proceeds to negotiate with a splinter union despite the existence of its valid CBA with the duly certified and exclusive bargaining agent, the former indubitably abandons its recoginition of the latter and terminates the entire CBA. An employer should not be allowed to rescind unilaterally its CBA with the duly certified bargaining agent.

2.2b Liability for Damages; Union Not Entitled to Moral DamagesA union, like a corporation, is an artificial person that exists only in contemplation of law. It has no feelings, no emotions, no senses. Hence, it cannot experience physical suffering or mental anguish that translate to moral damages.

2.3 Other CasesVAs also have exclusive and original jurisdiction to hear and decide wage distortion issues arising from the application of any wage orders in organized establishments, as well as unresolved grievances arising from the interpretations and implementation of the productivity incentive programs under R.A. No. 6971.Upon agreement of the parties, any other labor dispute may be submitted to a voluntary arbitrator or panel of voluntary arbitrators. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitrations.The NLRC, its regional branches and the Regional Directors of the DOLE shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the voluntary arbitrator or panel of voluntary arbitration provided in the CBA.

2.4 Dispute over Companys Drug Abuse PolicyA unions petition to enjoin implementation of the companys drug policy is a labor dispute beyond RTCs jurisdiction. It is a personnel policy dispute within the jurisdiction of a VA.

3. HOW VOLUNTARY ARBITRATION IS INITIATEDVoluntary arbitration may be initiated either by:Submission -sometimes called a Stipulation or an Agreement to Arbitrate-used where there is no previous agreement to arbitrate-more appropriate in interest disputes since collective agreement generally do not provide for the arbitration of such disputes that may arise in the future-often entered into after the dispute has materialized and the issues can already be defined

by a Demand or Notice invoking a collective agreement arbitration clause-more applicable to rights dispute because collective agreements are required under RA 6715 to provide for a grievance procedure and a voluntary arbitration clause with respect to disputes arising from the application or interpretation of the agreement-if a dispute is covered by such an arbitration clause, arbitration may be initiated unilaterally by one party serving upon the other a written demand or notice of intent to arbitrate

3.1 The Submission Agreement; Extent of Arbitrators AuthorityIn general, the arbitrator is expected to decide those questions expressly stated and limited in the submission agreement. However, since arbitration is the final resort for the adjudication of disputes, the arbitrator will assume that he has the power to make a final settlement.It is important to note that even if the particular issue is non-contractual or is not arbitrable under the contract, the parties may stipulate to arbitrate such issue in the submission agreement.It is thus essential to stress that the VA had plenary jurisdiction and authority to interpret the agreement to arbitrate and to determine the scope of his own authority subject only, in a proper case, to the certiorari jurisdiction of this Court.

3.2 Arbitrators Interpretation of CBAIt is said that an arbitral award does not draw its essence from the CBA, hence, there is an unauthorized amendment or alteration thereof, if:It is so unfounded in reason and fact;It is so unconnected with the wording and purpose of the agreement;It is without factual support in view of its language, its context, and any other indicia of the parties intention;It ingnores or abandons the plain language of the contract;It is mistakenly based on a crucial assumption which concededly is a nonfact;It is unlawful, arbitrary or capricious; and It is contrary to public policy

Art. 275 (262-A) PROCEDURES

1. COMPLIANCE WITH DUTY TO ARBITRATEIf a CBA requires settlement of disputes exclusively by the arbitration, then arbitration is needed before court suits for breach of the contract may be filed. Nonetheless, the parties to a CBA may waive the arbitration covenants of the agreement, but their conduct must clearly show that intention.

2. ETHICAL STANDARDS OF ARBITRATORSAn arbitrator is obliged to maintain a high level of professional ethics in his relationships with the parties and the appointing agencies. His conduct should be above reproach. Since in effect, he is a judge, his ethics must be on the same high level as the code that governs the conduct of judicial tribunals.

3. VOLUNTARY ARBITRATION AWARD, GENERALLY FINAL; EXCEPTIONSThe decisions of voluntary arbitrators must be given the highest respect and as a general rule, must be accorded a certain measure of finality. It is not correct, however, that this respect precludes the exercise of judicial review over their decisions. A voluntary arbitrator by the nature of his functions acts in a quasi-judicial capacity. There is no reason why his decisions involving interpretation of law should be beyond the Supreme Courts review.A voluntary arbitral award may be modified and set aside only upon the grounds on which a decision of the NLRC itself may be modified or set aside by the Supreme Court. A VA, whether acting solely or in a panel, enjoys in law the status of a quasi-judicial agency but independent of, and apart from, the NLRC since his decision are not appealable to the latter.

3.2a From VA to CA: Mode of Appeal is Petition for Review under Rule 43, not Special Civil Action of Certiorari under Rule 65The mode of appeal from VA to the CA is therefore a petition for review under Rule 43. It is not rule 65 because a petition for certiorari under that rule lies only where there is no appeal and no plain, speedy and adequate remedy in the ordinary course of law.Nonetheless, the Court cited situations when petition for certiorari despite availability of appeal, may be entertained, such as:When public welfare and advancement of public policy dictates;When the broader interest of justice so requires;When the writs issued are null and void;When the questioned order amounts to an oppressive exercise of judicial authority.

3.3 Findings of Facts of a VAThere is no merit in the contention that only questions of law, and not findings of fact, of a VA may be reviewed by the Court. While the Court has accorded great respect for, and finality to, findings of fact of VA and administrative agencies which have acquired expertise in their respective fields, like the Labor Department and the NLRC, their findings of fact and the conclusions drawn therefrom have to be supported by substantial evidence.

25) Ochavillo 542-545Principle of Union-Management RelationsRationale of RelationsWorkers organize into labor union not alone for economic motives but also for equally compelling psychological and social ones, so that they can participate in making the decisions that vitally affect them in their work and community life.Union-management cooperation tends to make management more efficient and unions more cost-conscious, thereby improving the competitive position of a business enterprise and increasing the earnings of both workers and owners.The nature of union-management relations and the administration of a contract are influenced greatly by pattern of social relationship in any given community.The future of industrial democracy depends upon the attainment of full production and employment on a sustained basis during and after the war.Attitude and LeadershipThe leadership requirements and responsibilities of management increase under union-management relations.Management should frankly acknowledge the role of the union in bringing about improvements in working conditions.The policies and actions of unions are likely to reflect the policies and actions of management.The attitudes and actions of management largely determine the degree of cooperativeness of union leadership.The time lag in the growth of constructive union leadership, after management ceases its opposition, varies with the extent to which labor assumes responsibility for the development of its leaders.Collective Bargaining and Contract AdministrationThe collective bargaining marks the end of individual and the beginning of group relations between workers and management.The initial collective-bargaining practices are influenced in varying degrees by the preunion history of the particular industrial concern and by the fact that genuine union-management relations are initiated by the union.Collective bargaining is an instrument for workers and owners, through unions and management, to solve their problems directly without recourse to the government.Collective bargaining is the extension of the basic principles and practices of democracy into industry.A prime objective of collective bargaining is the redistribution of the proceeds of production.Workers acquire a qualified property interest in their jobs under a collective-bargaining contract.The successful administration of a contract requires the maintenance of an effective system of communications for both management and the union, in bringing complaints from the bottom up and relaying decisions and policies from the top down.Participation of workers, union representatives, and management at all levels is a prerequisite to the successful administration of a collective-bargaining contract.The peaceful administration of a contract requires the confidence of workers that they will get justice through the collective-bargaining machinery in the settlement of their grievance.The natural outgrowth of local-plant and individual company collective bargaining is bargaining between district or industry-wide organizations of management and union.Grievance HandlingGrievance should be settled speedily and as near their point of origin as possible.Grievances should be settled on their merits with no logrolling permitted.Salesmen and purchasing agents usually possess a more natural ability for handling managements relations with unions than do operating officials.ParticipationManagements assumption of sole responsibility for productive efficiency actually prevents the attainment of maximum output.The participation of organized workers in management provides an outlet for their creative desires, as it is essentially a creative and cooperative undertaking.Union management cooperation to reduce cost, eliminate wastes, increase productive efficiency, and improve quality represents a practical program that provides workers with effective direct participation in the creative phases of management.Union should participate with management in distributing the proceeds of each firms production between its owners and workers.The greater the participation of workers through their unions in setting piecework and tonnage rates, in making time and motion studies, in determining work standards and job evaluations, the greater are the earnings and output.Employee Security and SharingEach group of workers strives for the kind of seniority rules which it thinks will provide the greatest amount of job protection.Seniority is an instrument designed to eliminate favoritism and discrimination.The power to discharge should not be lodged in a single individual.Workers should enjoy full freedom of opportunity for advancement and promotion.There is no basic conflict between seniority and productive efficiency.The proceeds of technological changes, labor saving machinery, and other factors contributing to lower unit costs of production should be shared equitably between owners and workers.The adjustment of wage-rate inequalities should be exclusively on the basis of the merits of each case.Union SecurityMembership in the union should be a condition of employment.The union shop is a necessary prerequisite for constructive union-management relations.The union shop may be an instrument for their constructive or negative union-management relations, depending chiefly upon managements outlook and the caliber of union leadership.These principles are not immutable rules of union-management relationships, because they are the outgrowth of changing conditions and, as a consequence, are themselves constantly subject to change.

26) Velez 550-640Right to peaceful concerted activities:

Strike or lock out may be caused either by collective bargaining deadlock or an unfair labor practice.

Violations of collective bargaining agreement except flagrant and/or malicious refusal to comply with its economic, shall not be considered unfair labor practice and not be strike able.

No strike or lickout may be declared on grounds involving inter-union and intra-union disputes or without first having filed a notice of strike or lockout or without the necessary strike or lockout vote having been obtained and reported to the borad. Neither will a strike be declared after assumption of jurisdiction by 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 strike or lockout.

In the course of collective bargaining, a lockout is proper only when the following requisites are metnotice of intention to declare a strike/lockout has been filed with the department of labor.At least thirty days has elapsed since the filing of the notice before lockout is declaredAn impasse has resulted in the negotiations;The strike/lockout is not discriminatory*** The notice or cooling off period is 15 days for unfair labor practices (U.L.P) strike/lockout and 30days for bargaining strike/lockout***Cooling off period will not apply if it involves union busting.

In defending again an unfair labor practice charge a raising out of such a use of a lockout, an employer should show that he was merely protecting his bargaining position and not acting out of hostility to the process of collective bargaining or by way of discriminating against union members.

Lockouts has been held valid in the following situations:In anticipation of a threatened strike, where the motivated by economic considerationIn response to unprotected strike or walkoutIn response to a whipsaw strike

Lockouts have been held unlawful where undertaken for the following purposes:

to discourage and dissipate membership in a labor organizationto aid a particular union by preventing further organizational work of its rival, or to coerce the employees to join the favored union to avoid bargaining

Lockout is unlawful where it is declared in order to defeat organizational and bargaining rights of employees.

Where there is no dispute or the dispute has nothing to do with he terms and conditions of employment in the establishment, the stoppage of work by its employees has no basis in labor law and the employees who engage in the work stoppage actually commit an illegal strike and take the risk and consequences of such an illegal act.

Please see page 560. Case: national union of workers in hotel, etc. vs. NLRC and peninsula hotel, G.R. no. 125561, march 6, 1998

Protection of strike:The right to strike is given the following protection:It is generally not subject to labor injunction or restraining orderEmployees may not be discriminated against merely because they have exercised the right to strike The use of strike-breakers is prohibitedMere participation in a strike does not sever the employment relationship.

Employees who peacefully struck for lawful object were not liable to their employer even though the strike shut him down, bankrupted him, or put him out of business, and even though it also caused enormous and irreparable damage to hundreds of thousands of innocent persons not involved in the strike.

Any person who obstructs the free and lawful ingress to and egress from the employers premises or who obstructs public thoroughfares may be arrested and accordingly charged in court.

The employees status during a strike remains, but the effects of employment are suspended, hence a striking employee, as a rule, is not entitled to his wage during the strike.

The authoritative Ludwig Teller says that an illegal strike is one which:Is contrary to a specific prohibition of lawViolates a specific requirement of lawIs declared for an unlawful purposeEmploy unlawful means in the pursuit of its objectivesIs declared in violation of an existing injunctionIs contrary to an existing agreement, such as a no-strike clause or conclusive arbitration clause*** see page 568(starting)Second requisite: Procedural requirementsFiling of notice of strike, observance of cooling-off period, taking of strike vote, and observance of seven-day strike vote report period. It bears stressing that these requirements are mandatory; meaning non compliance therewith makes the strike illegal.

Notice of strike:File with the department of labor and employment specifically the regional branch of the national conciliation and mediation board.Who file: only a legitimate labor organization can legally hold a strike.

If the reason for the intended strike is U.L.P by the employer, the notice should be filed by the duly recognized or certified bargaining agent. If the bargaining unit involved has yet no bargaining agent, then the notice may be filed by even an unrecognized labor union, provided the union is duly registered.

If the reason for the intended strike is bargaining deadlock, only the bargaining union ha the legal right to file a notice of strike.

Cooling off period:A cooling-off period must be observed, i.e, a time gap is required to cool off tempers between the filing of notice and the actual execution of strike (or lockout). The cooling-off period is thirty days in case of bargaining deadlock and fifteen days in case of unfair labor practice. However, in the face of union busting as defined in article 277, the cooling-off period need not be observed and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the appropriate regional branch of the board.

Strike vote:Secret balloting

In every case, the union or the employer shall furnish the regional branch of the board the notice of meetings referred to at least twenty-four 24 hours before such meetings as well as the result of the voting at least seven (7) days before the intended strike or lockout, subject to the cooling-off period. The decision to declare a strike requires the secret-ballot approval of majority of the total union membership in the bargaining unit concerned. The needed vote is majority of the total union membership, not just majority of the members present in the meeting of referenda. And it is majority of the union membership, not of the bargaining unit. The members of the minority union may or may not be called to strike vote meeting.

Strike vote report:The result of the strike (or lockout voting) should be reported to the NCMB at least seven (7) days before the intended strike or lockout, subject to the cooling-off period.

A strike held within seven-day waiting period is plainly illegal. A strike staged without the submission of the result of the strike-vote is illegal.

The failure of a union to comply with the requirement of the giving of notice to the NCMB at least 24 hours prior to the holding of a strike vote meeting will render the subsequent strike staged by the union illegal.

The law does not specify, but NCMBs Primer on strike, picketing and lockout states that if the strike vote is filed within the cooling-off period, the 7-day requirement shall be counted from the day following the expiration of the cooling-off period. In effect, the seven days. Are added to the 15-day or 30-day cooling off period.

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.

Declaration of strike or lockout:If the dispute remains unsettled after the lapse of the cooling-off period and the seventy-day reporting period, the labor union may strike or the employer may lock out its workers. The regional branch of the NCMB shall continue mediating and conciliating. The conciliation-mediator, however can only suggest solutions. He is not an arbitrator or an adjudicator who may impose his decisions upon the parties

In case of Union Busting:

Union busting exists when:The union officers are being dismissed Those officers are the ones duly elected in accordance with the union constitution and by-lawsThe existence of the union is threatened

If the union is being busted, there is no need to observe the cooling off period. But must the union still file a notice of strike, and take a strike vote, and submit the strike vote report? It is submitted that those requirements are still mandatory even in the face of union busting.

What is being excused in case of union busting is only the observance of the 15-day cooling period.

Equally uncompromising is the NCMB primer on strike, Picketing, and lockout which partly states: in case of ULP due to union busting, the time requirement for filing of the notice of strike shall be dispensed with but the strike vote requirement being mandatory in character, shall in every case be complied with.

Indeed, in case of alleged union busting, the three remaining requirements- notice, strike vote, and 7-day repot period-cannot be dispensed with; in fact, there is greater need for their observance.

Strike during arbitration: Illegal***read: Filsyn employees chapter vs. Drilon page 581

Personal notes sa case:-Employees were required to work on weekends and holiday (properly compensated)-labor dispute-union filed for notice of strike -upon employers petition, the minister of labor certified the labor dispute to the NLRC for compulsory arbitration-Employees did not work on Maundy Thursday, Good Friday, and black Saturday= strike-held: the certification of the dispute to the NLRC for compulsory arbitration had the effect of enjoining the intended strike subject of the notice

Strike despite preventive mediation :The effect of the declaration (the NCMB had declared the notice of stike as appropriate for preventive mediation) was to drop the case from the docket of notice of strikes as provided in rule 41 of the NCMB rules, as if there was no notice of strike. During the pendency of preventive mediation proceedings no strike could be legally declared.Filsyn employees chapter vs. drilon, et al., G.R no. 82225, april 5, 1989(important case) ***page 581

Personal note (still from the book):-when the NCMB converted IBMs notices into preventive mediation, this had the effect of dismissing the notices of strike filed by IBM. In the case of PAL vs. Drilon, the court ruled that after the pendency of the preventive mediation proceedings, no strike could be legally declared***san Miguel corporation vs. NLRC and IBM page 585 pero makitan sa page 586

Violation of a valid order:The strikers, through their representatives, had misled, not to say deceived, the industrial court because despite their assurance that tey would not go on strike just the same. It was held that the strike was equivalent to a violation or disobedience of an order of the court, hence illegal.

Grievance procedure bypassed: -Stipulation in the CBA: in case of any alleged unfair labor practice on the part of either party, there will be no strikes, lockouts, or any prejudicial action xxx. Through a grievance procedure herein outlined. Rule: the unions argument in support of that contention is vague and unconvincing. No specific statutory enactment was cited to show the illegality of that stipulation. -It was stipulated therein that if a laborer had a complaint, the same would first be resolved by a grievance committee. Then, if the decision was not satisfactory, the same would be referred to the top official of the union and the company. And if still no settlement was reached, the matter would be submitted to the CIR. Such stipulation was upheld.

- The main purpose of the parties in entering into a CBA is to adopt a procedure in the settlement of their disputes so that strikes may be prevented. This procedure must be followed in its entirety if it is to achieve its objectives.

- Even if the management has failed to do it duty in connection with the formation of the grievance committee stipulated in the agreement, such failure does not give to labor the right to declare a strike outright, for its duty under the agreement is to exhaust all available means within its reach before resorting to force. If labor chooses not to deal with the management either because of distrust or prejudice, the other way left to achieve a peaceful settlement on grievance is to resort to the court of Industrial relations. 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 adheres to and respected if their end is to be achieved.

- A strike or walkout on the basis of grievance, which have not been submitted to the grievance committee, as stipulated in the agreement of the parties sanctioned by the CIR, is premature and illegal.

Case:Since the CBA contained provisions on grievance and arbitration, obviously the union violated such provisions when it filed a notice of strike without availing of the remedies therein. Such infringement of the grievance and arbitration provisions constitutes further justification for the issuance of an injunction against the strike. As held by the court in the case of IPP and PWU vs. ISRC: strikes held in violation of the terms contained in collection bargaining agreement are illegal when they provide for conclusive arbitration clauses. These agreement must be strictly adhere to and respected if their ends have to be achieved.***San Miguel corporation vs. NLRC and IBM page 585

Dismissal of employees During Conciliation, when legal and enforceable:When the strike notice was files by the union, the change 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 GTEs requirement to submit individual reports was already in progress. At that time, no less than 3 of the ultimate 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 GTEs orders illegal and unenforceable so as to excuse continued noncompliance therewith. It does not follow that just because the employees or their union are unable to realize or appreciate the desirability of their employers 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.***GTE directories corp. vs. Sanchez, et al page 587 Third Factor in legality of strike: purpose; economic and ULP strike The labor code recognizes only two strikeable grounds or causes that may validly support a strike; 1) collective bargaining deadlock and 20 employers unfair labor practice. A strike not based on these two causes is necessarily tainted with illegality.

Accordingly, the following are non-strikeable issues;Inter-union or intra-union disputesViolation of labor standard laws, unless art. 258, particularly clause (c ), (F), or (i) is also violatedAny issue involving wage distortionCase pending at the DOLE regional offices, BLR, NLRC, or its regional branched, NWPC and its regional wage boards, office of the secretary, voluntary arbitrator, court of appeals, or the supreme court.Execution and enforcement of final orders, decisions, resolutions or awards in no. 4 above.Any issue covered by a no- strike commitment in a duly executed CBA.

The Conversion Doctrine Initiated over bargaining demands but during the course of the strike, the employer commits unfair labor practices.The board applied the usual rule that strikes who are permanently replaced during the economic phase of the strike are not entitled to immediate reinstatement, while strikers replace d after the date of conversion are.

Legality of Strike not dependent upon the ability of management to grant demands.-The ability of the company to grant said demands is one thing, and the right of the laborers to make said demands is another thing.

Lawful purpose; strike against employers unfair labor practiceUnion busting, or interference with the formation of a union, constitutes an unfair labor practice act, hence a valid ground for the declaration of strike. Any U.L.P act under Art. 258 is strikeable.***Davao free workers front vs. CIR page 592 The rule in this jurisdiction is that subjection by the company of its employees to a series of questioning regarding their membership in the union or their union activities in such a way as to hamper the exercise of free choice on their part, constitutes unfair labor practice. PHILSTEAMs aforestated interrogation squarely falls under this rule. ***Phil. Steam navigational co. vs phil marine officers guild page 593

Lawful purpose: U.L.P strike in Good Faith:There are two test in determining the existence of an unfair labor practice strike:

Objectively, when the strike is declared in protest of unfair labor practice which is found to have been actually committed; andSubjectively, when a strike is declared in protest of what the union believed to be unfair labor practices committed by management, and the circumstances warranted such belief in good faith, although found subsequently as not committed.

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.

If the management performed acts, which, under the circumstances, the strikers believed were unfair labor practices on the part of the management, although they were not, the court ruled that the strike cannot be held illegal. However, the unions belief needs some rational basis.

Case: ***ferrer vs court of industrial relations page 594

Good-faith strike Doctrine applied even to a strike without prior Notice and despite a No-strike clause

It suffices, if such belief in good faith is entertained by labor as the inducing factors for staging a strike. The strike staged by the union in this case cannot be considered a violation of the no-strike clause of the collective bargaining agreement because it was due to unfair labor practices of the employer. Moreover, a no-strike clause prohibition in a collective bargaining agreement is applicable only to economic strikes. ***Philippine metal foundries, Inc. vs. court of industrial relations page 597

Even Good-faith strike requires rational basisThe notice of strike filed by the union before the NCMB on July 12, 1991 contained general allegations that RBS management committed unfair labor practices by its gross violation of the economic provisions in their collective bargaining agreement and by alleged acts of coercion, union interference and discrimination which amounted to union busting. It is the union, therefore, who had the burden of proof to present substantial evidence to support these allegations.It is not enough that the union believed that the employer committed acts of unfair labor practice when the circumstance clearly negate even prima facie showing to warrant such a belief.Even assuming arguendo that in the issuance of said guidelines RBS may have violated some provisions in the collective bargaining agreement, there was no palpable showing that the same was a flagrant and/or malicious refusal to comply with its economic provisions. Hence, the law mandates that said violation shall not be considered unfair labor practice and shall not be strikeable. ***tiu and hayuhay vs. NLRC and republic broadcasting system page 598

Do the procedural requirement apply even to a ULP strike in good faith?

the reliance is misplaced. Peoples 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 R.A no. 6715 which took effect on march 21 1989, the rule 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. ***national federation of labor vs NLRC page 600

Lawful purpose: Strike to compel recognition of and bargaining WITH THE MAJORITY UNION***Caltex filipino managers and supervisors association vs. CIR page 601

Unlawful purpose: strike for union recognition without HAVING PROVEN MAJORITY STATUSBut where the majority status of union is not in doubt, not in dispute, or is certainly established and, despite this, the employer still refuses to bargain, then the situation is one of refusal to bargain which is unfair labor practice act by the employer; in this situation the union, if it strikes, will be staging a valid ULP strike, assuming that the other requirements are complied with. ***lakas ng manggagawang makabayan vs. marcelo enterprise page 602***association of independent unions in the Philippines case page 602

May a Minority Union strike?When a union, after winning in a election, is certified as the exclusive bargaining representative, any other union who participated in the election thereby becomes a minority union. A minority union cannot demand collective bargaining with the employer because such right properly belongs to the union that commands the majority. Moreover; the defeated union cannot lawfully undertake a strike against the employer; if one is being done, it must come to a halt. Neither can it picket to compel bargaining.After a union has been certified as the bargaining representative, a strike by a minority union to compel an employer to bargain with it is unlawful. No labor dispute can exist between a minority union and an employer in such case.If a union, after defeat in a certificate election, stages a strike to compel recognition as the bargaining agent, such strike is clearly unlawful.But this is not to say the minority union is helpless or an easy prey. Although it cannot strike, it can engage in peaceful concerted activity short of strike and it can file a ULP complaint.

Strike held to compel recognition while case is unresolved***Luzon marine department union case page 604

Unlawful purpose: trivial, unjust or unreasonable

Illegal Strike: shaven-head strikers (kalbo) in a tourist-class hotel Acts calculated to force disruption of operations, thereby violating the no-strike clause in the CBA, constitute illegal strike.

The unions violation of the Hotels grooming standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the hotel and was, therefore, not a protected action. Obviously, the hotel does not need to advertise its labor problems with its clients.Thus, we hold that the unions concerted violation of the Hotels grooming standards which resulted in the temporary cessation and disruption of the hotels operation is an unprotected act and should be considered as an illegal strike. ***National union of workers in the hotel restaurant and allied industries page606

Unlawful purpose: strike on non-strikeable issueNonstrikeable: Physical rearrangement of officeThere is no question that the strike itself was prompted by no actual existing unfair labor practice committed by the petitioner. In effecting a change in the seating arrangement in the office of the underwriting department, the employer merely exercise a reasonable prerogative employees could not validly question, much less assail as an act of unfair labor practice. The court is at loss how rearranging furniture can justify a four-month-long strike. As to the respondents change of harassment , the commission found none, abd as a general rule, the supreme court is bound by its findings. ***reliance surety and insurance case page 608

Nonstrikeable: companys sales evaluation policy-***GTE directories corporation case page 609* importantNonstrikeable: salary distortion under the wage rationalization act-***ilaw at buklod ng manggagawa case page 611

Nonstrikeable: inter-union or intra-union disputesBureau of labor relations, uner art 226, exercises original and exclusive authority to act on all inter-union and intra-union disputesThe dispute does not involve the employer. Since the dispute is not with the employer, the dispute cannot justify a work stoppage.no strike or lockout may be declared on grounds involving inter-union or internal union disputes or on issues brought to voluntary or compulsory arbitration.

Fourth Factor In legality of Strike: Means and MethodsA strike has to be pursuant within the bound of law. A strike does not suspend the binding force of law; it does not put the strikers above the law or above their fellowmen.Thus, the law limits to their exercise. These limits are among the prohibited activities that article 264 speaks of, particularly paragraph (e) . it stated that no person engaged in picketing shall-Commit any act of violence, coercion or intimidation, orObstruct the free ingress to or egress from the employers premises for lawful purpose Obstruct public thoroughfares

Whoever commits these acts- union officers, or MEMBERS, EMPLOYEES or non-employees-is answerable for the acts.

Threats, coercion or violenceThe use of violence , intimidation, restraint or coercion in carrying out concerted activities, which are injurious to the right of property, or to particular individuals, makes a strike illegal. Unlawful acts of preventing nonstrikers from working and the commission of acts of sabotage against the property of the employee as well as the employment of violence on nonstrikers; infliction of physical injuries, assault, breaking of truck side and windows, throwing of empty bottles at nonstrikers.But it must be noted that the 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, as we held in Almira vs. B.F Goodrich phil inc. In that case, we ordered the reinstatement of employees against whom criminal complaints had been filed but not yet proved

Violence on Both Sides-Where violence was committed on both sides during a strike, such violence cannot be a ground for declaring the strike as illegal.Responsibility of Use of force: individual vs. collective?To avoid rendering illusory the recognition of the right to strike, responsibilities in such a case should be individual and not collective. A different conclusion would be called for, of course, if the existence of force while the strike lasts was pervasive and widespread consistently and deliberately resorted to as a matter of policy.

Officials inability to leave premises, not illegal detention-Clearly, there was no kidnapping ; the detention or deprivation of liberty under the circumstance while certainly not to be justified, was not done with criminal intent.- Their objective , as clearly observed by the lower court , was not to inflict loss of freedom to the complainants but to weaken management resistance so that it would give in to their demands. While no doubt to be deplored, such conduct cannot be made a basis for a finding of probable cause that the crime penalized by the codal provision in question was committed. ***People vs. Barba page 617

Blockage or obstruction Obstructions are beyond the valid exercise of the right to strike because they deprive the owner of the company premises of its right to use them for unlawful purposes and the passers-by the use of public passage. The illegal obstructions on public thoroughfares, such as streets or sidewalks, are nuisances, which local government authorities can summarily remove

Fifth Factor in legality of strike: injunction National interest cases; automatic injuction and return-of-work order

When there is a labor dispute causing or likely to cause a strike affecting national interest, the secretary of labor and employment may either assume jurisdiction or certify the dispute to the national labor relations commission for compulsory arbitration. The secretary may so act at his own initiative or upon petition by any of the parties.Such assumption or certification has the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work under the same terms and conditions prevailing before the strike or lockout. This is an example of automatic injunction. But this is strictly limited to national interest cases, and even in these cases the parties retain the option to submit the dispute to voluntary arbitration.The issuance of injunction in national interest cases is an exception to art.254, which, in general, forbids labor injunctions.

What are considered national interest cases? The code vests the president of the Philippines and the secretary of labor and employment almost unlimited discretion to determine what industries may be considered as indispensable to the national interest.It is in the nature of a police power measure.

Personal notes:Examples of industries vested with national interest;Educational institutionsInimical to national economy Banks

Assumption of jurisdiction: prior notice not required-The discretion to assume jurisdiction may be exercised by the scretaryof labor and employment without the necessity of prior notice or hearing given to any of the parties disputants.-the labor minister may immediately take action where strike has effectively paralyzed a vital industry, e.g., a bus company drivers strike, without waiting the filing of notice of strike

Effects of DefianceNon-compliance with the certification order of the secretary of labor and employment shall be considered as an illegal act committed in the course of the strike or lockout, and shall authorize the commission to enforce the same under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the lock-out employer of backwages, damages and/or other affirmative relief, even criminal prosecution against the liable parties

Case:***grand boulevard hotel case page 623

Assumption or certification order immediately effective even without return to work order; strike becomes an illegal activity Regardless therefore of their motives, or the validity of their claims, the striking workers must cease and or/ desist from any and all acts that tend to, or 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 practice on the part of the company, to justify their actions.We also wish to point out that an assumption and/or certificate order of the secretary of labor automatically results in a return to work of all striking workers, whether or not corresponding order has been issued by the secretary of labor. Thus the striking workers erred when they continued with their strike alleging absence of a return to work order.***union of filipino employees case page 625Certification of the dispute to the NLRC makes the continuation of the strike illegal, provided that the parties are duly notified of the certification order. Notice to the parties is a prerequisite even if the order states that it is immediately executory-case:***PNOC dockyard case page 626Refusal to receive the RTWO (return to work order)Refusal to receive the AJO ( assumption of jurisdiction order) amounts to defiance of the order, which defiance makes the continuation of the strike an illegal act, thus subjecting the strikers to loss of employment statues.***University of san agustin case page 626 important

Defiance of RTWO, an illegal actNot only union officers but also union members who defy return to work order are subject to dismissal. They are deemed to have participated in an illegal act.

Case: ***st. scholastics college case important page 629

Individual Identification of strikerswhen the employees slowed down in their work after the DOLE secretary has assumed jurisdiction over the dispute, the slowdown amounted to a strike in defiance of the assumption order. For that reason, it is illegal strike. The union officers who participated in the illegal strike may be established. Each of these officers must be individually identified and the extent or nature of his participation proven with certainty; otherwise, the termination is invalid.

Abandonment has varying elementsThe rule that to constitute abandonment of position there must be occurrence of the intention to abandon and some overt act from which it may be inferred that the employees has no more interest in working is available as a defense against dismissals under art. 296. But it cannot be under art.277 (g) or art.278 (a).

Restoration of condition upon issuance of return to work orderAn order to return to work, which the labor court may properly issue in the exercise of it power of arbitration and conciliation, is intended to restore the strikers to their positions in the company under the last terms and conditions existing before the dispute arose.

The enforcement of a new company policy, requiring the employees to use upt heir earned leaves instead of accumulating them, without judicial authorization, would indeed constitute a violation of such order for the maintenance of status quo in relations between the workers and the company.

Where a return to work order is issued, may the employer be compelled to accept back to work the strikes with pending criminal chargesThus, 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.Actual, Not payroll, readmission The third sentence of article 277(g) states that the striking or locked out employees shall return to work and the employer shall readmit them, under the same terms and conditions prevailing before the strike or lockout. The court interprets this to mean actual, not payroll, readmission to the employees position.In another case the court recognizes that one of the superseding circumstances that justified payroll reinstatement is the fact that the subject employees positions were declared confidential in nature by a panel of voluntary arbitrator.Neither did the secretarty of labor abuse her discretion when she allowed payrolls reinstatement of the strikes in a large hotel. She did not insist that the management physically and immediately reinstate them because as the management pointed out, it would not look nice to have bald staff attending to the hotels guest.

Voluntary return to work is not waiver of original demandWhen the radio officers returned back to work after the strike, such return did not imply the waiver of the original demands. The fact that the radio operator returned back to work and ended their strike only meant that they desisted from the strike; such desistance is a personal act of the strikers, and cannot be used against the union and interpreted as a waiver by it of its original demand for which the strike was adopted as a weapon.

27) Zayas 641-65014.7 Assumption Order Regulates Management PrerogativesWhen labor dispute has occurred and a general injunction has been issued restraining the commission of disruptive acts, management prerogatives must be exercised consistently with the statutory objective.Metrolab Industries, Inc. VS Roldan-ConfessorIn this case, the SOLE assumed jurisdiction over the dispute and issued a restraining order. While the dispute was still unresolved, the company laid off 94 and 73 EEs on ground of redundancy. SC said that any act committed during the pendency of the dispute that tends to give rise to further contentious issues or increase the tensions between the parties should be considered an act of exacerbation. The unilateral action of mgt is blatant violation of the injunction of this Office against committing acts which would result in exacerbate the dispute. 14.8 Secretarys Arbitral AwardThe SOLE can render arbitral award. The arbitral award though not per se categorized as an agreement voluntarily entered into by the parties, it can be considered as an approximation of a CBA which would otherwise have been entered into by the parties. Hence, it has force and effect of a valid contract between the parties.14.9 Legal Discretion; Judicial Review of SOLEs Award or OrderLegal discretion is not a mental discretion to be exercised ex gratia (given freely), but it is to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.Manila Electric vs QuisimbingEvery legal power of the SOLE under the labor code, or for that matter, any act of the executive, that is attended by grave abuse of discretion is subject to review by the SC in an appropriate proceeding. The extent of judicial review must include the substance of the Secretarys award when grave abuse of discretion is alleged to exist in the award. 14.20 Appeal of Secretarys OrderInvolves national interest appeal to the Office of the PresidentNon-national interest cases file a petition for certiorari under Rule 65An appeal erroneously presented to the OP does not toll the running of the period to file petition for certiorari.14.21 Secretarys Abuse of Discretion, Examples- imposing a stipulation which even the union did not ask for in a bargaining deadlock over which the SOLE assumed jurisdiction- when the SOLE moto proprio changed the maintenance-of-membership clause contained in his earlier order to a more stringent union shop clause.- when the SOLE excluded from readmission the employees-strikers whom the ER separated on the ground of redundancy (see ART 263(g) for justification)14.22 Withdrawal of Case to Submit to VAArt 267 (h) allows the parties, at any stage, to withdraw the case from compulsory arbitration and bring it to voluntary arbitration. 15. Sixth Factor in Legality of Strike: AGREEMENT OF THE PARTIESGOP-CCP Workers Union vs CIR ruling upheld in Liberal Labor Union vs Phil. Can Company:strikes held in violation of the terms contained in a CBA are illegal, especially when they provide for conclusive arbitration clauses. These agreements must be strictly adhered to and respected if their ends have to be achieved.Master Iron Labor Union vs NLRC:A no strike clause in a CBA is applicable only to economic strikes. Thus, 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. 15.2 No Strike Clause Binding; Primacy of Voluntary Arbitration AgreementA no strike-no lockout stipulation generally deserves respect by the parties to the CBA and by the labor authorities. Such stipulation applies even to a deadlock in renegotiating the economic provisions of the CBA. Where the CBA stipulations that disputes between the parties should be resolve through a grievance machinery, including voluntary arbitration, a notice of strike filed by the union violates the agreement. The NCMB should consider such notice as not duly filed and then direct the union to avail itself of the grievance machinery and voluntary arbitration. A similar posture should be taken by the SOLE instead of assuming jurisdiction over the dispute. Primacy of Voluntary Arbitration over Assumption of JurisdictionSOLEs jurisdiction over labor disputes must include and extend to all questions and controversies arising therefrom, including cases in which the labor arbiter has exclusive jurisdiction. However, the present case (University of San Agustin EEs Union-FFW vs CA and University of San Agustin) is an exception to that holding. For, the NCMBs interaction on the universitys motion to refer the dispute to VA veritably forced the hand of the University to seek and accordingly submit to the jurisdiction of the SOLE. Considering that the CBA contained no strike, no lockout and grievance machinery and VA clauses, the NCMB under its own procedure should have declared as not duly filed the Unions Notice of Strike and should have referred the labor dispute to VA.15.3 No-Strike Clause Not Binding Upon Newly Certified Bargaining AgentBenguet Consolidated, Inc vs BCI EEs and Workers Union PAFLU:Is the new bargaining agent bound by the strike clause of the previous bargaining agent?The substitutionary doctrine only provides that the employees cannot revoke the validly-executed collective bargaining contract with their ER by simple expedient of changing their bargaining agent. It cannot be invoke to support that a newly certified CBA automatically assumes all the personal undertakings like the no strike stipulation. As the newly certified CBA, it can always voluntarily assume all personal undertakings made by the displaced agent. But there was no showing that the union formally adopted the existing contract in this case.15.4 If Members Disregard a No-Strike ClauseA no-strike clause is binding not only upon the union, but also upon its individual members. An ER may maintain an action against the union for damages resulting from violation of the no-strike clause, even though the ER grievances relating to the same work stoppage are arbitrable. However, the union is entitled a reasonable period of time after inception of the strike in which to take required action, after which the unions liability commences; where the union knows of the stike at about the time it commences, the union is properly allowed about 48 hours in which to take action to end the strike, after which the period of liability runs.15.6A court will not imply a no-strike clause in the contract which does not provide for arbitration of disputes. However, a no-strike pledge is inferable from a collective bargaining agreement establishing arbitration as a means of settling disputes.ART. 279 (265) Improved Offer BallotingImproved offer balloting is a device to end a work stoppage. By this device, the strike or lockout may end peaceably, silently without anyone losing face because no one will appear defeated. It offers a graceful exit where there is an improved offer by ER, or reduced demand by the union that will serve as a basis of secret balloting that will not reveal who retreated from the fight.

28) Ochavillo 651-661652-661No-strike pledge inferred from other provisionsA strike during the term of a collective bargaining agreement is not ipso facto a violation of the agreement. Collective bargaining agreement stating a contractual purpose to prevent lockouts, boycotts, and strikes, does not constitute waiver of the right to strike.

Article 279 (265) IMPROVED OFFER BALLOTINGIn an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of the strike. When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.In case of lockout, the Department of Labor and Employment shall also conduct a referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a majority of the board of directors or trustee or the partners holding the controlling interest in the case of a partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.Improved-offer ballotingImproved offer Balloting is a device to end the work stoppage. An improved offer by the employer, or a reduced demand by the union, will serve as basis for a secret balloting that will not reveal who retreated from the fight.

PICKETING AND OTHER CONCERTED ACTIONSPicketing is the presence of striking workers or union brothers standing outside the place of business in order to persuade peacefully other workers not to work in the establishment. Picketing almost always accompanies a strike.

Picketing without strike it is established that the constitutional right of free speech is infringed by a states judicial policy forbidding resort to peaceful picketing where there is no immediate employer-employee relationship, as in the case of organizational or recognitional picketing. Hence, a state cannot outlaw picketing merely because there is no strike in progress.

Moving picketThe public easement of way and passage permits the pickets to parade in front of or near the picketed establishment. They have the right of passage but this right does not create the additional rights of squatting or assembly. Any such squatting or assembly would exceed the scope of the public easement and would constitute and enjoinable trespass.

ObstructionPicketing conducted as to amount to a nuisance is unlawful. Picketing may be nuisance if it constitutes an obstruction to the free use of property. Permissible activities on the part of picketers do not include obstruction of access of customers.

Phimco vs.Phimco industries Labor AssociationWhile the picket was moving, it was maintained so close to the company gates that it virtually constituted an obstruction, especially when the strikers joined hands that for all intents and purposes, blocked the free ingress to and egress from the company premises. Article 264 of the Labor Code tells us that picketing carried on with violence, coercion or intimidation is unlawful. Words or acts which are calculated and intended to cause an ordinary person to fear an injury to his person, business or property are equivalent to threats. The manner in which the respondent union officers and members conducted the picket in the present case had created such an intimidating atmosphere that non-striking employees and even company vehicles did not dare cross the picket line.

Picketing of Neutral parties or Innocent Bystanders Philippine Association of Free Labor Unions vs. CloribelFacts: members of the union picketed in front of the building and along the common passageway of the banking firm office. Two of the other tenants located in the building filed a petition, claiming that the activities affected their enjoyment of the leased premises as well as their businesses.Ruling: There is no labor dispute between petitioner union and the complainants, who are innocent bystanders. A picketing labor union has no right to prevent employees of another company from getting in and out of its rented premises, otherwise it will be held liable for damages for its act against innocent bystanders.

Picketing of HomeThe picketing of a private home in a residential district is generally held improper, even when the pickets are domestic servants on the ground that a home is not an industrial or a business enterprise, but rather an institution used and maintained as a place of abode.

LimitationPicketing as a concerted activity is subject to the same limitation as strike, particularly as to lawful purpose and lawful means.

Violence and IntimidationPicketing carried on with intimidation, threats, coercion, or force is unlawful, however laudable the strikers motive or purpose, and regardless of whether the intimidated persons are the employers employee or potential employees or customers. A bona fide labor dispute is not justified in assaulting a police officer.

Untruthful PicketingPicketing may carry placards and banners truthfully advising the public concerning the dispute, but the untruthful picketing is unlawful picketing and is enjoinable even though its purpose is valid. Picketing is not peaceful where there is shouting or the use of loudspeakers in front of the picketed place of business. Permissible activities on the part of picketers do not include misrepresentation. This is in accord with the general rule that the means employed in aid of a strike must be free from falsehood or defamation.

OTHER CONCERTED ACTIVITIESCollective letterConcerted activities include not only strikes and picketing, but also informal actions, such as voicing their grievances against the bank president through a letter signed and published by them.

PublicityStriking employee have a right to acquaint the public with the fact of the existence of a strike setting forth their claims in a controversy over terms and conditions of employment, by sign, handbill, or newspaper advertisement as a legitimate means of economic coercion.

Placards and BannersStrikers having the right to apprise the public of the fact of the strike and solicit its support may inscribe his grievance upon placards and banners, provided the inscription is not libelous or otherwise unlawful. The right to banner is subject to limitations provided for by law and ordinance. The display of banners informing the public that the employer is unfair is not unlawful if the statements made are true in face, and there is no obstruction to traffic or of access to the plaintiffs place of business.Wearing of Armbands.Bascon vs. CAWearing armbands and putting up placards to express ones views without violating the rights of third parties, are legal per se and even constitutionally protected.

29) Rudela 662-676SPEECHES, MUSIC, AND BROADCASTSIt is not unlawful for a labor organization in a radio broadcast, without employing threat or intimidation, to express its honest opinion as to the fairness of an employer toward organized labor and to advise the public and friends of labor not to patronize him. Nor is it unlawful to cause to be driven through apparatus for broadcasting music. However, the use of loudspeaker in front of a picketed place of business has been condemned as a form of intimidation. The same is true of the holding of street meetings near the place of business of the employer with whom a union has a dispute.EMPLOYEES DEMONSTRATION TO PROTEST POLICE ABUSES It was the duty of the company to protect the Union and its members from the harassment of local police officers. It was to the interest of herein private respondent firm to rally to the defense of and to take up the cudgels for its employees so that they can report for work free from harassment, vexation or peril and as a consequence perform more efficiently their respective task to enhance its productivity as well as profits. (Philippine Blooming Mills case)RALLIES AS ILLEGAL STRIKE (Toyota Motor Phils) The Union fails to realize one major difference: there was no labor dispute in Philippine Blooming Mills Employees Organization. In the present case, there was an on-going labor dispute arising from Toyotas refusal to recognize and negotiate with the Union, which was the subject of the notice of strike filed by the Union on January 16, 2001. The court affirmed the dismissal of more than 200 union officers and members. BOYCOTT- as applied to labor unions, is generally understood to be a combination to harm one person by coercing others to harm him- that is, a combination of many to cause a loss to one person by causing others, against their will, to withdraw from him their beneficial business intercourse through threats that unless others do so, the many will cause similar loss to him or them. It is an attempt, by arousing a fear of loss, to coerce others, against their will to withhold from one denominated unfriendly to labor their beneficial business intercourse. The essential idea of boycotting is a confederation, generally secret, of many persons whose intent is to injure another by preventing any and all persons from doing business with him, through fear of incurring the displeasure, persecution, and vengeance of the conspirators. LAWFULNESS OF THE BOYCOTTLEGITIMATE- boycott by labor for the purpose of the maintenance or advancement of wages, improvement of conditions of labor, shortening of periods of labor, engagements of union employees, and reinstatement. It should be free of violence or malevolence. ILLEGAL- purpose is to require an employer to coerce his employees to pay their back dues to the union or discharge them, or to compel the payment by an employee of a fine, or to compel the employee to refrain from working, to compel to sign contract, or to compel an employer to refrain from issuing new process or machinery. The striking employees may appeal for sympathetic aid by a request to withhold patronage or make like proper measures to induce third persons to withhold their patronage from the employer in order to compel him to recognize the demands of the employees. SLOWDOWNIt is a method by which ones employees, without seeking complete stoppage of work, retard production and distribution in an effort to compel compliance by the employer with the labor demands made upon him. It may or may not be accompanied by strike. It may be gesture, preliminary to strike, which is calculated to serve as an admonition or warning to the offending employer; or, alternatively, it may be a movement in prosecution of a strike which has been declared without a walk-out. In either event, the movement can be executed only by the employees themselves. In this respect does the slowdown differ from picketing, secondary boycott, etc. in the latter cases, the project may be executed by employees and nonemployees alike, in slowdown, it can be executed only by such of the offending employers personnel. In one case, slowdown is strike on the installment plan, a willful reduction of the rate of work by concerted action of workers to restrict the output of the employer, in relation to a concerted action of workers to restrict the output of employer, in relation to a labor dispute; as an activity by which workers, without a compete stoppage of work, retard production or their performance of duties and functions to compel management to grant their demands. CONSEQUENCES OF CONCERTED ACTIONSSTRIKERs RETENTION OF EMPLOYMENT- strikers remain as employees while they are on strike. The effects of employment, generally, are merely suspended during that time- the workers do not work and do not get paid. Even if strike is declared as illegal, the strike need not have been attended with such a drastic consequence as termination of employment relationship. This is because of the security of tenure provision of the Constitution. Civil and criminal law are not suspended during a strike, hence anyone who commits an illegal act, whether a union officer or a member, is civilly or criminally liable no matter whether the strike is legal or not. Furthermore, the commission of illegal acts, including coercion, grave threats, intimidation is reason enough to terminate the employment of such striker-employee. The individual strikers committing the illegal acts must be identified. Simply referring to strikers, AIU strikers, or complainants in this case is not enough to justify their dismissal. But proof beyond reasonable doubt is not required; substantial evidence is enough. SUSPENSION INSTEAD OF DISMISSAL The penalty imposable does not always have to be dismissal; it may be scaled down to suspension. Suspension was upheld by the court in a case where both parties, ER and UNION, contributed to the volatile atmosphere emerging despite the SOLEs status quo order. Both sides were at fault or in pari delicto. UNION OFFICERS OR LEADERS? The codal provision mentions OFFICERS, not LEADERS. There can be leaders who are not officers.SHOP STEWARDS ARE UNION OFFICERSThus, like the officers and directors of petitioner union who joined the strike, petitioners-shop stewards also deserve the penalty of dismissal from their employment. UNION MEMBERSA union member, who participated in committing illegal acts during a strike, whether legal or illegal, may also lose his employment status. WHO DECLARES LOSS OF EMPLOYMENT STATUS?Gold City Port Service, Inc vs NLRC- the law, in using the word may, grants the employer the option of declaring a union officer who participated in an illegal strike as having lost his employment.DECLARATION OF ILLEGALITY OF STRIKE NOT A PREREQUISITE TO DISMISSAL OF ILLEGAL STRIKERS Filing a petition to declare a strike illegal is not a prerequisite for the employer to terminate the employment of employees, whether union officers or members, who commit illegal acts in the course of the strike. A prior petition to declare the strike illegal is not necessary.EXCEPTION: PENDING CASE AT THE NLRCThe issues relating to the strike and lockout were already submitted before the NLRC through corresponding complaints filed by petitioner itself and private respondents. By filing a formal complaint for illegal strike, it behooved petitioner to desist from undertaking its own investigation on the same matter, concluding upon the illegality of the union activity and dismissing outright the union officers involved. EMLOYERS OBSERVANCE OF DUE PROCESSAn employers declaration that a striker has lost his employment status is, technically, not dismissal although it amounts to the same thing. Dismissing an employee is an act of the employer. But an employer declaring that an employee has lost his employment is merely confirming the effect of an (illegal) act initiated by the employee himself. It is as if the employee brought about his own dismissal, and the employer is merely confirming it. But due process- a valid cause and a valid procedure- must be observed. In the PHIMCO case, the employer directed the strikers to explain within 24 hours why they should not be dismissed for committing illegal acts during strike. Three days later, they were informed of their dismissal. This procedure says the court, is not sufficient compliance with the due process requirement which applies to every case of employment termination. EE are dismissed but ER has to pay damages.

30) Tidoso 677-691Good- Faith StrikeA strike may be justified by belief in good faith that the employer was committing unfair labor