PART XII

UNFAIR LABOR PRACTICE

A. DEFINITION, NATURE, CONCEPTS AND CONSTRUCTION
-“Unfair labor practices” – violate the constitutional right of workers and employees to self-
organization, are inimical to the legitimate interests of both labor and management, including their
right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and
mutual respect, disrupt industrial peace and hinder the promotion of healthy and stable labor-
management relations. (Article 258, P.D. 442, Labor Code)
- Concept of ULP
ULP is an act of an employer or union – or their agents, which violates the right of workers to self-
organization, which includes the right: a. To form a union; b. To take part in its formation; c. To join or
assist a union of their own choosing for purpose of Collective bargaining and negotiating; and d. To
engage in concerted activities for mutual help and protection

1. Only ULP Not Related to the Exercise of Right to Self-Organization and Observance of
Collective Bargaining (Labor Code, Art. 259(f) [238])
-ART. 259. [248] Unfair Labor Practices of Employers.221 – It shall be unlawful for an employer to
commit any of the following unfair labor practices: (f) To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given or being about to give testimony under this Code;

2. Elements – (1) Employer-employee relationship between the offended party and the offender;
and (2) Act complained of must be expressly mentioned and defined in the Labor Code as ULP
- Elements of ULP: 1. There must be an employer-employee relationship between the offender and
offended party; 2. The act complained of must be expressly mentioned and defined in the Labor Code
as ULP; 3. The act complained of as ULP must have a proximate and casual connection with any of the
following 3 rights: a. Exercise of the right to selforganization; b. Exercise of the right to collective
bargaining; or c. Compliance with the CBA.

3. Allegation and Burden of Proof

- To hold an employer liable for the same, the alleging party has the burden to prove that the acts of
the former negatively affects in whatever manner the right of his or her employees to self-organize

4. Person Liable
4.1. Employer (Labor Code, Arts. 259 [248], except par. (i) involving violation of CBA and
qualified by 274 [261], & 278(c) [263] on union busting)
- The provisions of the preceding paragraph notwithstanding, only the officers and agents of
corporations, associations or partnerships who have actually participated in, authorized or ratified
unfair labor practices shall be held criminally liable.

4.2. Labor Organizations (Labor Code, Art. 260 [249], except par. (f) involving violation of
CBA and qualified by 274 [261])
- The provisions of the preceding paragraph notwithstanding, only the officers, members of governing
boards, representatives or agents or members of labor associations or organizations who have
actually participated in, authorized or ratified unfair labor practices shall be held criminally liable.

5. ULPs Common to Both Employers and Labor Organizations

5.1. Restraint, or coercion of employees in the exercise of their right to self-organization
(Labor Code, Arts. 259(a) [248] & 260(a) [249])
5.2. Discrimination committed by the employer in regard to wages, hours of work and other
terms and conditions of employment in order to encourage or discourage membership
in any labor organization and discrimination committed by the labor organization in its
act of causing or attempting to cause an employer to discriminate against an employee
(Labor Code, Arts. 259(e) [248] [first sentence] & 260(b) [249])
5.3. Violation of CBA, when gross in character (Labor Code, Arts. 259(i) [248] & 260(f)
[249])
5.4. Violation of the duty to bargain collectively (Labor Code, Arts. 259(g) [248] & 260(c)
[249])
5.5. Payment by employer of negotiation or attorney’s fees and acceptance thereof by the
union or its officers or agents as party of the settlement of any issue in collective
bargaining or any other dispute (Labor Code, Arts. 259(h) [248] & 260(e) [249])

6. Persons Criminally Liable (Labor Code, Arts. 259 [248] & 260 [249])
- only the officers and agents of corporations, associations or partnerships who have actually
participated in, authorized or ratified unfair labor practices shall be held criminally liable.
- only the officers, members of governing boards, representatives or agents or members of labor
associations or organizations who have actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable.

7. Compromise of ULP Cases

§ Reformist Union of R.B. Liner, Inc. v. NLRC, 266 SCRA 713 (1997)
- The Supreme Court held that the private respondents could no longer contest the legality of the
strike as they had sought compulsory arbitration to resolve the issue. The dispute was settled
through an agreement on January 19, 1990, where the private respondents agreed to accept all
employees who had not yet returned to work. By acceding to the settlement brokered by the
NLRC, the private respondents waived the issue of the strike's illegality. The nature of
compulsory arbitration makes the settlement binding, and the legality of the strike had
already been resolved. The case certified by the Labor Secretary to the NLRC was dismissed
after the agreement, conclusively disposing of the strike issue.

8. Civil Aspect of ULP (Labor Code, Art. 258 [247])

- The civil aspect of ULP includes claims for actual, moral and exemplary damages, attorney‘s fees and
other affirmative reliefs (Art. 258, Labor Code) Generally, these civil claims should be asserted in the
labor case before the Labor Arbiters who have original and exclusive jurisdiction over ULP cases. (Art.
224, Labor Code)
The civil aspect can be committed by the officers and agents of the employers or officers and agents of
the labor organization.
This aspect of ULP is cognizable and falls within the jurisdiction of the Labor Arbiter. The quantum of
proof required is only substantial evidence and the prescriptive period is one year from the accrual of
ULP. (Duka, Labor Laws and Social Legislation, hereinafter Duka, 2019, p. 524)

8.1. Jurisdiction of Labor Arbiter; exceptions (Labor Code, Arts. 278 (g) [263] & 279 [264],
and 275 [262])
- Original and Exclusive Jurisdiction of Labor Arbiter involving all workers, whether agricultural/non-
agricultural:
1. Under Article 224 of the Labor Code: a. Unfair labor practice (ULP) cases;
b. Termination disputes (illegal dismissal cases);
c. If accompanied with a claim for reinstatement, those cases that workers may file involving wages,
rates of pay, hours of work and other terms and conditions of employment;
d. Claims for actual, moral, exemplary and other forms of damages arising from the ER-EE
relationship; e. Cases arising from any violation of Article 264 of the Labor Code, including questions
involving the legality of strikes and lockouts;
f. Except claims for Employees Compensation, Social Security, Medicare and Maternity Benefits, all
other money claims exceeding P5,000 arising from ER-EE relationship, including those of persons in
domestic service, regardless if accompanied with a claim for reinstatement.
2. Disputes involving legislated wage increases and wage distortion in unorganized establishments not
voluntarily settled by the parties (Art. 124, Labor Code, as amended by Republic Act No. 6727)
3. Contested cases under the exception clause in Article 128(b) of the Labor Code.
4. Enforcement of compromise agreements when there is noncompliance by any of the parties
thereto (Art. 233, Labor Code as amended)
5. Issuance of writ of execution to enforce decision of voluntary arbitrators or panel of voluntary
arbitrators in case of their absence or incapacity for any reason.
6. Money claims of OFWs arising out of ER-EE relationship or by virtue of any law or contract,
including death and disability benefits and for actual, moral, exemplary and other forms of damages
(Sec. 7, RA 10022, Migrant Workers and Overseas Filipino Act)
7. Other cases may be provided by law

8.2. Illegally dismissed employee tainted with ULP entitled to moral and exemplary
damages
§ Hacienda Fatima v. National Federation of Sugarcane Workers-Food and General
Trade, 396 SCRA 518 (2003)
- The finding of unfair labor practice done in bad faith warranted the award of moral and exemplary
damages.

9. Criminal Aspect of ULP (Labor Code, Arts. 303 [288] & 305 [290], in relation to 224 [217], 275
[262] & 278(g) [263])
- The criminal aspect, on the other hand, can be committed by the agents and officers of the employer
who participated, authorized and/or ratified the act. This ULP falls within the jurisdiction of the
regular trial courts and the quantum of proof required is beyond reasonable doubt. The prescriptive
period is within one year from the accrual of the act of ULP.

B. ULP OF EMPLOYERS (Labor Code, Art. 259 [248])

1. Interference With, Restraint or Coercion of Employees in the Exercise of Their Right to Self-
Organization (Labor Code, Art. 259(a) [248])
- Test of Interference or Coercion Whether the employer has engaged in conduct which may
reasonably tend to interfere with the free exercise of employees‘ twin rights to self-organization and
collective bargaining (Insular Life Employees Association vs. Insular Life, G.R. No. L-25291, January 30,
1971)
It is the prerogative of the company to promote, transfer, or even demote its employees to other
positions when the interests of the company reasonably demand it. Unless there are circumstances
which directly point to interference by the company with the employee‘s right to selforganization, the
transfer of an employee should be considered as within the bounds allowed by law, e.g. despite
transfer to a lower position, his original rank and salary remained undiminished. (Rubberworld Phils.
vs. NLRC, G.R. No. 75704, July 19, 1989)
2. Yellow Dog Contract (Labor Code, Art. 259(b) [248])
- Yellow Dog Contract In Article 259(b), ULP is committed when an employer requires as a condition of
employment that a person or an employee shall not join a labor organization or shall withdraw from
one to which he belongs. This is known as a yellow dog contract.
A yellow dog contract is an undertaking by the employees that as a condition for employment they
will not join, assist, form or even attempt to foster a union for the duration of their employment with
the employer. This is a void undertaking. (Duka, Labor Laws and Social Legislation, 2019, p. 529)
Common stipulations in a Yellow Dog Contract A typical yellow dog contract embodies the following
stipulations:
3. A representation by the employee that he is not a member of a labor organization;
4. A promise by the employee that he will not join a union; and
5. A promise by the employee that upon joining a labor organization, he will quit his employment (Chan,
Pre-Week Bar Exam Notes on Labor Law, 2018, p. 97).

3. Contracting Out Services or Functions (Labor Code, Art. 259(c) [248]; DO 174-17)
- Subcontracting is a ULP when the contracting out of a job, work or service being performed by union
members will interfere with, restrain or coerce employees in the exercise of their right to self-
organization that it shall constitute an unfair labor practice. Thus, it is not unfair labor practice to
contract out work for reasons of business decline, inadequacy of facilities and equipment, reduction
of cost and similar reasonable grounds. The court usually refuses to substitute its judgment for that of
the business decision of the employer in ascertaining the validity or legality of the motivation for the
contracting out of services (Azucena, Labor Code 2, 2016, p. 330).
It is important to note, however, that not all acts of the employer in contracting out the work which is
otherwise performed by union members can be classified as ULP. Such contracting out becomes unfair
labor practice if and when it interferes with, restrains or coerces the employees in the exercise of their
rights to self-organization. (Duka, Labor Laws and Social Legislation, 2019, pp. 529-530)
Contracting out of services is not ULP per se. It is ULP only when the following conditions exist: the
services contracted out are being performed by union members and such contracting-out interferes
with, restrains, or coerces employees in the exercise of their right to self-organization (Duka, Labor
Laws and Social Legislation, 2019, pp. 529-530).

4. Company Union (Labor Code, Art. 259(d) [248])

- ART. 259. [248] Unfair Labor Practices of Employers.221 – It shall be unlawful for an employer to
commit any of the following unfair labor practices: (d) To initiate, dominate, assist or otherwise
interfere with the formation or administration of any labor organization, including the giving of
financial or other support to it or its organizers or supporters;

5. Discrimination, Union Security Clause, Agency Fee (Labor Code, Art. 259(e) [248])
5.1. Discrimination (Labor Code, Art. 259(e) [first sentence] [248])
- Discriminate in terms and conditions of employment to encourage or discourage membership in any
labor organization;
Discrimination is not ULP per se, it only becomes as such when it encourages/discourages unionism.
(Azucena, Labor Code 2, 2016, p. 337) Test of discrimination: When the discharge of an employee was
motivated by his involvement with the union. Such inference must be based on evidence, direct or
circumstantial, not upon mere suspicion. (Azucena, Labor Code 2, 2016, p. 342-344)
Dismiss, discharge or discriminate an employee for having given or being about to give testimony
under this code; Dismissal of employees after they have organized their union and about to start with
the effort at having it certified as their SEBA. (Samahan ng Manggagawa sa Binondo-LMLC vs. NLRC,
G.R. No. 126195, July 17, 1997)
Consequently, to dismiss union members in order to ensure the defeat if the union in the certification
election is ULP. (Samahang Manggagawa ng Via Mare vs. Noriel, G.R. No. L52169, June, 30, 1980)
Dismissal of union officers which threatens the existence of the union constitutes unionbusting of
ULP. (Art. 278 [c], Labor Code)

5.2. Union security clause (Labor Code, Art. 259(e) [second sentence] [248])
- Nothing in the Code or in any other law shall stop the parties from requiring membership in a
recognized collective bargaining agent as a condition for employment, except those employees who
are already members of another union at the time of the signing of the collective bargaining
agreement. (Art. 259, Labor Code)
It is the policy of the State to promote unionism to enable the workers to negotiate with management
on the same level and with more persuasiveness than if they were to individually and independently
bargain for the improvement of their respective conditions. It is for this reason that the law has
sanctioned stipulations for the union shop and the closed shop as a means of encouraging the workers
to join and support the labor union of their own choice as their representative in the negotiation of
their demands and the protection of their interest vis-a-vis the employer. (Liberty Flour Mills
Employees vs. Liberty Flour Mills, Inc., G.R. No. 58768-70, December 29, 1980)
The purpose of a union shop or other union security arrangement is to guarantee the continued
existence of the union through enforced membership for the benefit of the workers. (Bank of the
Philippine Islands vs. BPI Employees Union-Davao ChapterFederation of Unions in BPI Unibank, G.R. No.
164301, August 10, 2010)
Requisites for enforcement of union security clauses To validly terminate the employment of an
employee through the enforcement of the union security clause, the following requisites must concur:
1) the union security clause is applicable;
2) the union is requesting for the enforcement of the union security provision in the CBA; and 3) there
is sufficient evidence to support the decision of the union to expel the employee from the union.”

Modified union shop agreement

Exclusive bargaining agent agreement

Bargaining for members only agreement

Agency shop agreement

Preferential hiring agreement

5.3. Agency fee (Labor Code, Art. 259(e) [third sentence] [248]; IRR, BVRXXVS4)
- Employees of an appropriate bargaining unit who are not members of the recognized collective
bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by
members of the recognized collective bargaining agent, if such non-union members accept the
benefits under the collective bargaining agreement: Provided, That the individual authorization
required under Article 242, paragraph (o) of this Code222 shall not apply to the non-members of the
recognized collective bargaining agent;

7. CBA-related ULPs (Labor Code, Art. 259(g)(h)(i) [248])

(g)To violate the duty to bargain collectively as prescribed by this Code;
(h) To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement
of any issue in collective bargaining or any other dispute; or
(i) To violate a collective bargaining agreement

7.1. Failure/refusal of employer to give counter-proposal

- Utter lack of interest in bargaining with the union is obvious in its failure to make a timely reply to
the proposals presented by the latter. More than a month after the proposals were submitted by the
union, petitioner still had not made any counter-proposals. (Colegio de San Juan de Letran v.
Association of Employees and Faculty of Letran, G.R. No. 141471, September 18, 2000)
Its refusal to make a counter-proposal for the CBA negotiation is an indication of its bad faith and it is
clear evasion of the duty to bargain collectively which is an unfair labor practice (General Milling Corp.
v. Hon. C.A., G.R. No. 146728, 11 February 2004) b. When there is a CBA – when there is CBA, the duty
to bargain collectively shall mean that neither party shall terminate nor modify such agreement during
its lifetime. However, either party can serve a written notice to terminate the agreement at least 60
days prior to its expiration date, otherwise known as the Freedom Period.

7.2. Failure of employer to provide updated financial information only when request made
in writing (Labor Code, Art. 251(c) [242])
- To be furnished by the employer, upon written request, with its annual audited financial statements,
including the balance sheet and the profit and loss statement, within thirty (30) calendar days from
the date of receipt of the request, after the union has been duly recognized by the employer or
certified as the sole and exclusive bargaining representative of the employees in the bargaining unit,
or within sixty (60) calendar days before the expiration of the existing collective bargaining
agreement, or during the collective bargaining negotiation;

7.3. Negotiating with union members individually

- Indeed, when the respondents offered reinstatement and attempted to "bribe" the strikers with
"comfortable cots," "free coffee and occasional movies," "overtime" pay for "work performed in
excess of eight hours," and "arrangements" for their families, so they would abandon the strike and
return to work, they were guilty of strike-breaking and/or union-busting and, consequently, of unfair
labor practice. It is equivalent to an attempt to break a strike for an employer to offer reinstatement
to striking employees individually, when they are represented by a union, since the employees thus
offered reinstatement are unable to determine what the consequences of returning to work would
be.

7.4. Surface bargaining

- Surface Bargaining - is defined as "going through the motions of negotiating" without any legal
intent to reach an agreement. The resolution of surface bargaining allegations never presents an easy
issue. The determination of whether a party has engaged in unlawful surface bargaining is usually a
difficult one because it involves, at bottom, a question of the intent of the party in question, and
usually such intent can only be inferred from the totality of the challenged party’s conduct both at
and away from the bargaining table. It involves the question of whether an employer’s conduct
demonstrates an unwillingness to bargain in good faith or is merely hard bargaining. (Standard
Chartered Bank vs. Confesor, G.R. No. 114974, June 16, 2004)

7.5. Blue-sky bargaining [committed by SEBA]

Blue-Sky Bargaining – is the act of making exaggerated or unreasonable proposals. (Duka, Labor Laws
and Social Legislation, 2019, p. 533)

7.6. Boulwarism [“Take it or leave it” offer]

- Boulwarism, an unfair labor practice Boulwarism is the tactic of making a "takeitor-leave-it" offer in
a negotiation, with no further concessions or discussion. Employer’s bargaining proposal on a rigid
“fairand-firm” offer or on a “take-it of leave-it” basis is illegal, known as Boulwareism.

7.7. Closure of establishment in bad faith

§ St. John Colleges, Inc. v. St. John Academy Faculty and Employees Union, 505 SCRA
764 (2006)
- The Supreme Court found that SJCI's closure of the high school was done in bad faith. The
timing and reasons for the closure, as well as the subsequent reopening of the high school
after only one year, indicated that the closure was intended to defeat the Union's right to
collective bargaining and its members' right to security of tenure. The Court noted that SJCI
closed the high school while the labor dispute was still pending before the SOLE, undermining
the dispute resolution mechanism provided by the Labor Code. The Court also found that SJCI
failed to prove that the Union's demands were illegal or excessive. Furthermore, the alleged
safety concerns for students were not substantiated by evidence, and the parents and
students were opposed to the closure. The reopening of the high school without rehiring the
previously terminated employees further demonstrated SJCI's bad faith.

C. ULP OF LABOR ORGANIZATIONS (Labor Code, Art. 260 [249] [Paragraphs (c), (e) & (f) by
SEBA only.]
1. Restraint and Coercion of Employees in the Exercise of Their Right to Self-Organization (Labor
Code, Art. 260(a) [249])
- Restrain or coerce employees in the exercise of their right to self-organization Labor organization
shall have the right to prescribe its own rules with respect to the acquisition or retention of
membership. The labor organization, its officers, agents or representatives are granted license by the
Labor Code to interfere with the exercise by the employees‘ of their right to selforganization. Without
such, no labor organization can be formed as the act of recruiting and convincing the employees is an
act of inference. (Chan, PreWeek Notes on Labor Law, 2019, p. 63)

2. Discrimination (Labor Code, Art. 260(b) [249])

- Cause or attempt to cause an employer to discriminate an employee Includes discrimination against
an employee with respect to whom membership in organization has been denied or to terminate an
employee on any ground other than the usual terms and conditions of membership or continuation of
membership is made available to other members. In determining whether a discharge is
discriminatory, the true reason for the discharge must be established. While union activity is no bar to
a discharge, the existence of a lawful cause for discharge is no defense if the employee was actually
discharged for union activity. (Phil. Metal Foundries vs. CIR, G.R. No. 34948-49 May 15, 1979)

3. Duty of Union to Bargain Collectively (Labor Code, Art. 260(c) [249])

- Violate the duty or refuse to bargain collectively with the employer; Requisites: 1. The union is a duly
certified SEBA (Lakas ng Manggagawang Makabayan vs. Marcelo Enterprises, GR No. L-38258,
November 19, 1982); and 2. It commits any of the following: a. It violates the duty to bargain
collectively; or b. It refuses to bargain collectively with the employer.
4. Featherbedding (Labor Code, Art. 260(d) [249])

- An employer to pay or deliver any money or other things of value, in the nature of an exaction, for
services which are not performed or not to be performed This ULP is known as featherbedding. It is in
nature of exaction, for services which are not performed or not to be performed, as when a union
demands that the employer maintain personnel in excess of the latter’s requirements. It is an unfair
labor practice of the union through coercive means for exacting or attempting to exact the employers
for services not rendered or not intended to be rendered.

5. Demand or Acceptance of Negotiation Fees or Attorney’s Fees (Labor Code, Art. 260(e) [249])
To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any
issue in collective bargaining or any other dispute; or

6. Violation of the CBA (Labor Code, Arts. 260(f) [249], in relation to 259(i) [248] & 274 [261])

PART XIII
PEACEFUL CONCERTED ACTIVITIES
A. LEGAL BASIS (Const., Art. II, S18, Art. III, S4 & 8, Art. XIII, S3, Art. IXB, S2[1][5]; Labor Code,
Arts. 219(l)(o)(p)(r)(s) [212], 267 [255], 278 [263] - 287 [272]; IRR-BV-RXXII [Under DO 40-03,
as amended by A-I & DO 40J-22]; Revised NCMB Manual of Procedures for Conciliation and
Preventive Mediation Cases [2017 Edition], or “NCMB Manual”; NCMB Primer on Strike,
Picketing and Lockout [1995 Edition], or “NCMB Primer”)
- Workers shall have the right to engage in concerted activities for purposes of collective
bargaining or for their mutual benefit and protection. The right of legitimate labor
organizations to strike and picket and of employers to lockout, consistent with the national
interest, shall continue to be recognized and respected. However, no labor union may strike
and no employer may declare a lockout on grounds involving interunion or intra-union
disputes. (Art. 278(b), Labor Code)
- The term ―” concerted activities” is defined as the activities of two or more employees for
the purpose of securing benefits or changes in terms and conditions of employment, or for
mutual aid or protection with respect to their collective interest as employee.

B. STRIKE
1. Definition, Elements, and Forms (Labor Code, Art. 219(o) [212]; IRR-BV-RI-S1(xx); NCMB
- Any temporary stoppage of work by the concerted action of the employees as a result of an
industrial or labor dispute. (Art. 219(o), Labor Code) A strike is the most powerful weapon of workers
in coming to an agreement with management as to the terms and conditions of employment.
Premised on the concept of economic war between labor and management, staging a strike either
gives life to or destroys the labor union and its members, as well as affect management and its
members. (Ilagan v. Manila Electric Co., G.R. Nos. 211746 & 212077 (Notice), January 22, 2020)

Forms and classification of strikes:

1. As to nature
a. Legal strike - one that is staged for a valid purpose and conducted through means allowed by law.
(Duka, Labor Laws and Social Legislation, 2019, p.649)
b. Illegal strike - one staged for a purpose not recognized by law or, if for a valid purpose, it is conducted
through means not sanctioned by law. (Duka, Labor Laws and Social Legislation, 2019, p.649)
c. Economic strike - one declared to demand higher wages, overtime pay, holiday pay, vacation pay, etc.
It is one which is declared for the purpose of forcing wage or other concessions from the employer for
which he is not required by law to grant. (Master Iron Labor Union vs. NLRC, G.R. No. 92009, February
17, 1993)
d. Unfair labor practice (ULP) or political strike - one called to protest against the employer‘s unfair
labor practices enumerated in Article 248 of the Labor Code, including gross violation of the CBA under
Article 261 and unionbusting. (Duka, Labor Laws and Social Legislation, 2019, p.648)
e. Slowdown strike - one staged without the workers quitting their work but by merely slackening or
reducing their normal work output. It is also called “a strike on the installment plan.” (Poquiz, Labor
Relations and Law on Dismissal with Comments and Notes, 2018, p. 367)
Nothing in the law requires that a slowdown be carefully planned and that it be participated in by a large
number of workers. The essence of this kind of strike is that the workers do not quit their work but
simply reduce the rate of work in order to restrict the output or delay the production of the employer. It
has been held that while a cessation of work by the concerted action of a large number of employees
may more easily accomplish the object of the work stoppage than if it is by one person, there is, in fact
no fundamental difference in the principle involved as far as the number of persons involved is
concerned, and thus, if the act is the same, and the purpose to be accomplished is the same, there is a
strike, whether one or more than one have ceased to work. (Ramirez vs. Polyson Industries, Inc. G.R. No.
207898, October 19, 2016)
f. Mass leaves - One in which workers collectively abandon or boycott regular work causing temporary
stoppage of work. (Solidbank Corp. vs. EU Gamier, G.R. No. 159460-61, November 15, 2010)
g. Wildcat strike - one declared and staged without the majority approval of the recognized bargaining
agent. (Duka, Labor Laws and Social Legislation, 2019, p.651)
h. Sit-down strike - one where the workers stop working but do not leave their place of work. (Duka,
Labor Laws and Social Legislation, 2019, p.651)
i. Overtime boycott – one involving the act of the workers in refusing to render overtime work in
violation of the CBA, resorted to as a means to coerce the employer to yield to their demands.
j. Boycott of products – one which involves the concerted refusal to patronize an employer's goods or
services and to persuade others to a like refusal.

2. As to extent
a. General strike – one which covers and extends over a whole province or country.
b. Particular strike – one which covers a particular enterprise, locality, or occupation; it usually involves
only one union or only one industry. (Azucena, Labor Code with Comments and Cases, Vol. II-A, 2021, p.
490)
3. As to purpose
a. Economic strike – intended to force wage and other concessions from the employer; which he is not
required by law to grant; or
b. Unfair labor practice strike – a strike called against unfair labor practices of the employer, usually for
the purpose of making him desist from further committing such practices. (Ibid)
4. As to the nature of the strikers’ action
a. Partial strike – brief and unannounced temporary work stoppage, including slowdowns, unauthorized
extension of rest periods, and walkouts for portions of a shift or for entire shifts;
b. Sit-down strike – a combination of the strike plus a refusal of the strikers to leave the plant and
machines, and a refusal to permit the latter to be operated; and
c. Slowdown strike – It is a willful reduction in the rate of work by a group of employees for the purpose
of restricting the output of the employer. (Azucena, Labor Code 2, 2016, p. 580)
5. As to the extent of the interest of strikers
a. Primary strike – refers to a strike conducted by the workers against their employer, involving a labor
dispute directly affecting them;
b. Secondary strike – refers to a strike staged by the workers of an employer involving an issue which
does not directly concern or affect their relationship but rather, by some circumstances affecting the
workers such as when the employer persists to deal with a third person against whom the workers have
an existing grievance. Workers stage this kind of strike to secure the economic assistance of their
employer to force the third person to yield to the union on the issues involving it and said third person;
and
c. Sympathy strike – a kind of strike staged by the workers of one company to make common cause with
the strikers of other companies without demands or grievances of their own against their employer. This
is an illegal strike because there is no labor dispute between the workers who are joining the strikes and
the latter’s employer. (Duka, Labor Laws and Social Legislation, 2019, p.651)

2. Prohibition on Government Employees (Const., Art. IXB, S2[1]; Labor Code, Arts. 6 & 291
[276])

§ Bangalisan v. CA, 276 SCRA 619 (1997)

- It is the settled rule in this jurisdiction that employees in the public service may not engage in
strikes. While the Constitution recognizes the right of government employees to organize, they
are prohibited from staging strikes, demonstrations, mass leaves, walk-outs and other forms of
mass action which will result in temporary stoppage or disruption of public services. The right of
government employees to organize is limited only to the formation of unions or associations,
without including the right to strike.
- It bears stressing that suspension of public services, however temporary, will inevitably derail
services to the public, which is one of the reasons why the right to strike is denied government
employees. 12 It may be conceded that the petitioners had valid grievances and noble intentions
in staging the "mass actions," but that will not justify their absences to the prejudice of innocent
school children. Their righteous indignation does not legalize an illegal work stoppage.
3. Nature and Limitations of the Right to Strike (Const., Art. XIII, S3 “…right to strike in accordance
§ The Hongkong & Shanghai Banking Corporation Employees Union v. NLRC, 778
SCRA 17 (2016)

- Article 263 of the Labor Code outlines several limitations on the right to strike, including:

1. Notice Requirements:
o Strikes due to bargaining deadlocks require a 30-day notice to the Department of Labor;
unfair labor practice strikes require a 15-day notice.
o In cases of union busting (e.g., dismissal of union officers), immediate action is
permitted without the 15-day notice.
2. Cooling-Off Period:
o During the cooling-off period, the Department of Labor must mediate to seek a
voluntary resolution. If unresolved after the notice period, a strike or lockout can
proceed.
3. Voting Approval:
o A strike must be approved by a majority of union members through secret ballot, while
a lockout requires approval from the board of directors or partners, also via secret
ballot.
 4. Regulatory Compliance:
o Notices and actions must align with specific implementing rules set by the Secretary of
Labor.

4. Requisites for a Valid Strike

4.1. Grounds – ULP and CBD (Labor Code, Art. 278(c) [263], in relation to Arts. 259 [248]
and 274 [261] on CBA violations which are gross in character; IRR-BV-RXXII-S5;
NCMB Manual, RV-S1)

- Grounds for a Valid Strike

The Labor Code and the IRR limit the grounds for a valid strike to:
1. a bargaining deadlock in the course of collective bargaining, or
2. the conduct of unfair labor practices by the employer.
Only a certified or duly recognized bargaining representative may declare a strike in case of a
bargaining deadlock. However, in cases of unfair labor practices, the strike may be declared by any
legitimate labor organization. (Bigg's, Inc. v. Boncacas, G.R. Nos. 200487 & 200636, March 6, 2019)
(Ergonomic Systems Philippines, Inc. v. Enaje, G.R. No. 195163, December 13, 2017)
Not Valid Grounds for a Strike
a. Violations of CBAs (except those that are gross in character);
b. Inter-union and internal union disputes
c. Issues brought to voluntary or compulsory arbitration; d. Legislated wage orders; and e. Labor
standard cases

4.2. Notice of Strike – Filed before the NCMB (Labor Code, Art. 278(c)(d) [263]; IRR-BVRXXII-
S7; NCMB Manual, RIII-26 & RIV)
Mandatory procedural requirements
a. notice of strike be filed with the NCMB 30 days before the intended date thereof, or 15 days in case
of unfair labor practice;
b. a strike vote be approved by a majority of the total union membership in the bargaining unit
concerned, obtained by secret ballot in a meeting called for that purpose; and
c. a notice be given to the NCMB of the results of the voting at least seven days before the intended
strike. These requirements are mandatory, and the union's failure to comply renders the strike illegal.

Prescribed Form (NCMB Manual, RIV-S1)

Contents of Form (IRR-BV-RXXII-S8; NCMB Manual, RIV-S2)

Who may file (IRR-BV-RXXII-S6; NCMB Manual, RIV-S3)

Where to file (NCMB Manual, RIV-S4

)
Service of notice (NCMB Manual, RIV-S5)
Action on the notice of strike (IRR-BV-RXXII-S9; NCMB Manual, RIV-S6)

Identification of Issues (NCMB Manual, RV-S2)

Action on strikeable issues (NCMB Manual, RV-S3)

Action on non-strikeable issues (NCMB Manual, RV-S4)

Conversion of notice of strike to preventive mediation (NCMB Manual, RV-S5)

Action on notices involving issue/s cognizable by grievance machinery, VA, or NLRC (NCMB
Manual, RV-S6)
4.3. Request for Conduct of Strike Vote Balloting (Labor Code, Art. 278(f) [263]; IRR-BVRXXII-
S10; NCMB Manual, RVI-S2)
4.4. Strike Vote Balloting (Labor Code, Art. 278(f) [263]; IRR-BV-RXXII-S10; NCMB
Manual, RVI-S1)
4.5. Submission of Strike Vote Report (Labor Code, Art. 278(f) [263]; IRR-BV-RXXII-S10;
NCMB Manual, RVI-S2)

- (f) A decision to declare a strike must be approved by a majority of the total union membership in
the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that
purpose. A decision to declare a lockout must be approved by a majority of the board of directors of
the corporation or association or of the partners in a partnership, obtained by secret ballot in a
meeting called for that purpose. The decision shall be valid for the duration of the dispute based on
substantially the same grounds considered when the strike or lockout vote was taken. The Ministry
may, at its own initiative or upon the request of any affected party, supervise the conduct of the
secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the
voting at least seven days before the intended strike or lockout, subject to the cooling-off period
herein provided.

4.6. Cooling-off Period (Labor Code, Art. 278(c)(e)(f) [263]; IRR-BV-RXXII-S7; NCMB
Manual, RVI-S7)
 - In a strike due to bargaining deadlocks, the union must file a notice of strike or lockout with
the regional branch of the NCMB at least 30 days before the intended date of the strike and
serve a copy of the notice on the employer. This is the so-called "cooling-off period" when the
parties may enter into compromise agreements to prevent the strike. In case of unfair labor
practice, the period of notice is shortened to 15 days; in case of union busting, the "cooling-off
period" does not apply and the union may immediately conduct the strike after the strike vote
and after submitting the results thereof to the regional arbitration branch of the NCMB at least
seven days before the intended strike. Thus, in a strike grounded on unfair labor practice, the
following are the requirements: (1) the strike may be declared by the duly certified bargaining
agent or legitimate labor organization; (2) the conduct of the strike vote in accordance with the
notice and reportorial requirements to the NCMB and subject to the seven-day waiting period;
(3) notice of strike filed with the NCMB and copy furnished to the employer, subject to the 15-
day cooling-off period. In cases of union busting, the 15-day cooling-off period shall not apply.
(Bigg's, Inc. v. Boncacas, G.R. Nos. 200487 & 200636, March 6, 2019)

4.7. Strike Ban/7-Day Waiting Period (Labor Code, Art. 278(f) [263]; IRR-BV-RXXII-S10;
NCMB Manual, RVI-S3)
- The 7-day waiting period or strike ban is a distinct and separate requirement from the cooling-
off period. The latter cannot be substituted for the former and vice-versa. Both must be
complied with separately and distinctly from each other. In the event the result of the
strike/lockout vote ballot 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 (NCMB Primer on Strike,
Picketing and Lockout 2nd Edition, December 1995)

Declaration/Conduct of Strike (IRR-BV-RXXII-S11)

Improved Offer Balloting (Labor Code, Art. 280 [265]; IRR-BV-RXXII-S12; NCMB Manual, RVIS4)
ART. 280. [265] Improved Offer Balloting.241 – In 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 a 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 trustees 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.

5. Strikes in Hospitals, Clinics and Similar Medical Institutions (Labor Code, Art. 278(g) [263];
IRR-BV-RXXII-S17)
- In line with the national concern for and the highest respect accorded to the right of patients to
life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to
every extent possible, be avoided, and all serious efforts, not only by labor and management but
government as well, be exhausted to substantially minimize, if not prevent, their adverse effects
on such life and health, through the exercise, however legitimate, by labor of its right to strike
and by management to lockout. In labor disputes adversely affecting the continued operation of
such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-
out employer to provide and maintain an effective skeletal workforce of medical and other
health personnel, whose movement and services shall be unhampered and unrestricted, as are
 necessary to insure the proper and adequate protection of the life and health of its patients,
most especially emergency cases, for the duration of the strike or lockout.

6. Prohibited Acts and Practices (Labor Code, Arts. 278 [263] & 279 [264]; IRR-BV-RXXII; NCMB
Manual; NCMB Primer, No. 16)

Prohibited acts during strike

1. By anyone. No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats,
or intimidation, any peaceful picketing by employees [Art.279(b), Labor Code, as amended];
• Blocking the free ingress to/ egress from work premises for lawful purposes
• Obstruction of public thoroughfares
• Threatening, coercing and intimidating non-striking employees, officers, suppliers and customers
• Resistance and defiance of assumption of jurisdiction by the Labor Secretary or an injunction
• Acts of violence (Association of Independent Unions in the Philippines (AIUP), et. al. vs. NLRC, G.R. No.
120505, March, 25, 1999)
The violence must be pervasive and widespread, consistently and deliberately resorted to as a matter of
policy (Shell Oil Workers vs. Shell Company of the Phil., 39 SCRA 276 1971) (if violence was resorted to
by both sides, such violence cannot be a ground for declaring the strike as illegal) (Malayang Samahan
ng Manggagawa sa M. Greenfield vs. Ramos, G.R. No. 113907, February 28, 2000)
2. By employer. No employer shall use or employ any strike-breaker, nor shall any person be employed
as a strike-breaker. (Art. 279(c), Labor Code, as amended)

7. Prohibitions on law enforcement agencies or public officials/employees, armed persons, private

security guards and similar personnel in the private security agency; exception (IRR-BV-RXXIIS19)

By public official or police force. No public official or employee, including officers and personnel of the
New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring
in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or
leaving the premises of a strike area, or work in place of the strikers. (Art. 279(d), Labor Code, as
amended)

8. Liabilities of Union Officers and Members (Labor Code, Art. 279(a) [3rd par.] [264] “xxx Any
union officer who knowingly participates in an illegal strike and any worker or union officer who
knowingly participates in the commission of illegal acts during a strike may be declared to have
lost his employment status: Provided, That mere participation of a worker in a lawful strike shall
not constitute sufficient ground for termination of his employment, even if a replacement had
been hired by the employer during such lawful strike.”
- By union officers The mere declaration of illegality of the strike will result in the termination of all
union officers who knowingly participated in the illegal strike. (Lapanday Workers Union vs. NLRC,
G.R. No. 95494- 97, September 07, 1995) Unlike ordinary members, it is not required, for purposes of
termination, that the officers should be proven to have committed illegal acts during the strike in
order to be held liable (Phimco Industries, Inc. vs. Phimco Industries Labor Association, G. R. No.
178030, August 11, 2010)

9. Requirement for Arrest and Detention (Labor Code, Art. 281 [266])
ART. 281. [266] Requirement for Arrest and Detention. – Except on grounds of national security and
public peace or in case of commission of a crime, no union members or union organizers may be
arrested or detained for union activities without previous consultations with the Secretary of Labor.

10. Assistance to Labor Organizations [By DOLE and Institute for Labor Studies] (Labor Code,
Arts. 282 [267] & 283 [268])
ART. 282. [267] Assistance by the Department of Labor. – The Department of Labor, at the initiative of
the Secretary of Labor, shall extend special assistance to the organization, for purposes of collective
bargaining, of the most underprivileged workers who, for reasons of occupation, organizational
structure or insufficient incomes, are not normally covered by major labor organizations or
federations. 109

ART. 283. [268] Assistance by the Institute of Labor and Manpower Studies.242 – The Institute of
Labor and Manpower Studies shall render technical and other forms of assistance to labor
organizations and employer organizations in the field of labor education, especially pertaining to
collective bargaining, arbitration, labor standards and the Labor Code of the Philippines in general.

11. Foreign Activities (Labor Code, Arts. 284 [269] [on Prohibition Against Aliens and Exceptions]
to 286 [271])
ART. 284. [269] Prohibition Against Aliens; Exceptions.243 – All aliens, natural or juridical, as well as
foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade
union activities without prejudice to normal contacts between Philippine labor unions and recognized
international labor centers: Provided, however, That aliens working in the country with valid permits
issued by the Department of Labor and Employment, may exercise the right to self-organization and
join or assist labor organizations of their own choosing for purposes of collective bargaining: Provided,
further, That said aliens are nationals of a country which grants the same or similar rights to Filipino
workers.

12. Penalties/Criminal Prosecution (Labor Code, Art. 287 [272]; IRR-BV-RXXII-S20)

ART. 287. [272] Penalties.244 – (a) Any person violating any of the provisions of Article 264 of this
Code245 shall be punished by a fine of not less than one thousand pesos (P1,000.00) nor more than
ten thousand pesos (P10,000.00) and/or imprisonment for not less than three months nor more than
three (3) years, or both such fine and imprisonment, at the discretion of the court. Prosecution under
this provision shall preclude prosecution for the same act under the Revised Penal Code, and vice
versa.
(b) Upon the recommendation of the Minister of Labor and Employment and the Minister of National
Defense, foreigners who violate the provisions of this Title shall be subject to immediate and
summary deportation by the Commission on Immigration and Deportation and shall be permanently
barred from re-entering the country without the special permission of the President of the
Philippines.246

13. Visitorial Power (Labor Code, Art. 289 [274])

ART. 289. [274] Visitorial Power.247 – The Secretary of Labor and Employment or his duly authorized
representative is hereby empowered to inquire into financial activities of legitimate labor
organizations upon the filing of a complaint under oath and duly supported by the written consent of
at least twenty percent (20%) of the total membership of the labor organization concerned and to
examine their books of accounts and other records to determine compliance or non-compliance with
the law and to prosecute any violations of the law and the union constitution and by-laws: Provided,
That such inquiry or examination shall not be conducted during the sixty (60) days freedom period nor
within the thirty (30) days immediately preceding the date of election of union officials.

14. Miscellaneous Provisions (Labor Code, Art. 292 [277])

ART. 292. [277] Miscellaneous Provisions.249 – (a) All unions are authorized to collect reasonable
membership fees, union dues, assessments and fines and other contributions for labor education and
research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and
cooperative undertakings.

C. PICKETING
1. Definition, Nature and Purpose (Labor Code, Art. 278(b) [263]; IRR-BV-RXXII-S13; NCMB
Manual, RIII-27)
- A picket simply means to march to and from the employer's premises, usually accompanied by the
display of placards and other signs making known the facts involved in a labor dispute. (Phimco
Industries, Inc. v. Phimco Industries Labor Association, G.R. No. 170830, August 11, 2010)
Requisites for lawful picketing
a. The picket should be peacefully carried out;
b. There should be no act of violence, coercion or intimidation attendant thereto;
c. The ingress to or egress from the company premises should not be obstructed; and
d. Public thoroughfares should not be impeded.
Elements:
a. There must be a labor issue;
b. It must be a concerted activity of the union; and
c. Characterized by the peaceful marching to and from at the employee’s premises with placards to
appraise the employer and the public of their demands.

2. Picketing and Strike, Distinguished

D. LOCKOUT
1. Definition, Elements, and Forms (Labor Code, Art. 219(p) [212]; IRR-BV-RI-S1(hh); NCMB
Manual, RIII-20; NCMB Primer)
-The temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.
(Art. 219p, Labor Code)

2. Requisites for a Valid Lockout

2.1. Grounds – ULP and CBD (Labor Code, Art. 278(c) [263], in relation to Arts. 259 [248]
and 274 [261] on CBA violations which are gross in character; IRR-BV-RXXII-S5;
NCMB Manual, RV-S1)
-Grounds for lockout
A lockout must be based on any or both of the following two (2) exclusive grounds:
a. Unfair Labor Practice (political);
b. Collective bargaining deadlock (economic). (Sec. 5, Rule XXII, D.O. No. 40- 03, as amended by A-I)

2.2. Notice of Lockout – Filed before the NCMB (Labor Code, Art. 278(c)(d) [263]; IRR-BVRXXII-
S7; NCMB Manual, RIII-25 & RIV)
- Notice of Lockout
Refers to the notification filed by an employer with the appropriate Regional Branch informing the
latter of its intention to temporarily cease its operation due to alleged commission by a registered
labor union of unfair labor practice act/s or a deadlock in collective bargaining negotiations. (Rule III
(25), The Revised National Conciliation and Mediation Board Manual of Procedures for Conciliation
and Preventive Mediation Cases, 2017 Ed)

2.3. Request for Conduct of Lockout Vote Balloting (Labor Code, Art. 278(f) [263]; IRR-BVRXXII-
S10; NCMB Manual, RVI-S2)
2.4. Lockout Vote Balloting (Labor Code, Art. 278(f) [263]; IRR-BV-RXXII-S10; NCMB
Manual, RVI-S1)
2.5. Submission of Lockout Vote Report (Labor Code, Art. 278(f) [263]; IRR-BV-RXXII-S10;
NCMB Manual, RVI-S2)
- (f) A decision to declare a strike must be approved by a majority of the total union
membership in the bargaining unit concerned, obtained by secret ballot in meetings or
referenda called for that purpose. A decision to declare a lockout must be approved by a
majority of the board of directors of the corporation or association or of the partners in a
partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall
be valid for the duration of the dispute based on substantially the same grounds considered
when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the
request of any affected party, supervise the conduct of the secret balloting. In every case, the
union or the employer shall furnish the Ministry the results of the voting at least seven days
before the intended strike or lockout, subject to the cooling-off period herein provided.

2.6. Cooling-off Period (Labor Code, Art. 278(c)(e)(f) [263]; IRR-BV-RXXII-S7; NCMB
Manual, RVI-S7)
-when the parties may enter into compromise agreements to prevent the strike. In case of unfair labor
practice, the period of notice is shortened to 15 days; in case of union busting, the "cooling-off
period" does not apply and the union may immediately conduct the strike after the strike vote and
after submitting the results thereof to the regional arbitration branch of the NCMB at least seven days
before the intended strike. Thus, in a strike grounded on unfair labor practice, the following are the
requirements: (1) the strike may be declared by the duly certified bargaining agent or legitimate labor
organization; (2) the conduct of the strike vote in accordance with the notice and reportorial
requirements to the NCMB and subject to the seven-day waiting period; (3) notice of strike filed with
the NCMB and copy furnished to the employer, subject to the 15- day cooling-off period. In cases of
union busting, the 15-day cooling-off period shall not apply. (Bigg's, Inc. v. Boncacas, G.R. Nos. 200487
& 200636, March 6, 2019)

2.7. Lockout Ban/7-Day Waiting Period (Labor Code, Art. 278(f) [263]; IRR-BV-RXXII-S10;
NCMB Manual, RVI-S3)

3. Consequences of Illegal Lockout

3.1. On Illegally Dismissed Employees (Labor Code, Art. 279(a) [3rd par.] [264])
- Effect of illegal lockout
Any worker whose employment has been terminated as a consequence of an unlawful lockout shall
be entitled to reinstatement with full back wages. (Art. 279(a), Labor Code)

3.2. When Parties Acted In Pari Delicto

- Both parties in pari delicto
If both parties are in pari delicto, in that the employer is guilty of illegal lockout and the union is
culpable for illegal strike, such situation warrants the restoration of the status quo ante and bringing
the parties back to the respective positions before the illegal strike and illegal lockout. (Chan, Bar
Reviewer on Labor Law, 2019, p. 598-599)

4. Prohibited Acts and Practices (Labor Code, Arts. 278 [263] & 279 [264]; IRR-BV-RXXII; NCMB
Manual; NCMB Primer, No. 16)
E. DOLE SECRETARY ASSUMPTION OF JURISDICTION OVER THE LABOR DISPUTE OR
CERTIFY IT TO NLRC FOR COMPULSORY ARBITRATION
1. Legal Basis/Nature of the Power (Labor Code, Art. 278(g) [263]; IRR-BV-RXXII-S15)
-Assumption of Jurisdiction by the DOLE Secretary The Secretary of Labor is empowered to do either
of the following: a. Assume jurisdiction over the labor dispute and decide it himself; or b. Certify the
same to the NLRC for compulsory arbitration, in which case it will be the NLRC which shall hear and
decide it. (Article 278(g), Labor Code)

2. Prior Notice and Hearing Not Required

3. Effect of Assumption of Jurisdiction or Certification (Labor Code, Art. 278(g) [263]; IRR-BVRXXII-
S15)

- Effects of Assumption of Jurisdiction

1. Automatically enjoins the intended or impending strike or lockout as specified in the assumption or
certification order;
2. If one has already commenced at the time of assumption or certification, automatically prohibits its
continuation; and
3. The mere issuance of an assumption or certification order automatically carries with it a return-to-
work order which is compulsory and immediately executor;
4. The employer shall immediately resume operations and re-admit all workers under the same terms
and conditions prevailing before the strike or lockout. (Article 278 [g], Labor Code)

4. Industries Indispensable to the National Interest (IRR-BV-RXXII-S16)

-Industries Indispensable to National Interest
The determination of specific industries indispensable to the national interest is left to the discretion
of the DOLE Secretary.
Under Article 278 (g) of the Labor Code, when in the opinion of the DOLE Secretary, the labor dispute
causes or will likely cause in a strike or lockout in an industry indispensable to the national interest
The power of assumption of jurisdiction or certification by the Secretary of Labor is in the NATURE OF
A POLICE POWER MEASURE.
The following industries/services are hereby recognized as deemed indispensable to the national
interest: a. Hospital Sector; b. Electric Power Industry; c. Water Supply Services, to exclude small
water supply services such as Bottling and Refilling Stations; d. Air Traffic Control; and e. Such other
industries as maybe recommended by the National Tripartite Industrial Peace Council (NTIPC). (Sec.
16, Rule XXII, D.O. No. 40-03 as amended)

5. Company’s right to take action against union officers who participated in the illegal strike and
committed illegal not enjoined by DOLE Secretary’s assumption order
§ Phil. Airlines, Inc. v. Secretary of Labor and Employment, 193 SCRA 223 (1991)
 - Since the strike was illegal, the company has a right to take disciplinary action against the
union officers who participated in it, and against any union members who committed illegal
acts during the strike, Art. 264 of the Labor Code provides:
- Art. 264. Prohibited activities. Any worker 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 an illegal strike and any worker or union officer
who knowingly participates in the commission of illegal acts during a strike may be declared
to have lost his employment status: Provided, That mere participation of a worker in a lawful
strike shall not constitute sufficient ground for termination of his employment, even if a
replacement had been hired by the employer during such lawful strike.

6. Labor Arbiter’s Jurisdiction to Determine Legality of Strike/Lockout; Exception (Labor Code,

Art. 224(5) [217]; NCMB Primer, No. 22)

§ International Pharmaceuticals, Inc. v. Secretary of Labor, 205 SCRA 59 (1992)

- Exclusive Jurisdiction of Labor Arbiters: Under the Labor Code, labor arbiters have original and
exclusive jurisdiction over unfair labor practice cases and disputes involving the legality of
strikes and lockouts. However, the law also provides that the Secretary's authority can
supersede this exclusive jurisdiction when certain conditions are met.

7. Submission of Labor Dispute to Voluntary Arbitration (Labor Code, Art. 278(h) [263]; IRR-BVRXXII-
S15)
(h) Before or at any stage of the compulsory arbitration process, the parties may opt to submit their
dispute to voluntary arbitration.
(i) The Secretary of Labor and Employment, the Commission or the voluntary arbitrator or panel of
voluntary arbitrators shall decide or resolve the dispute within thirty (30) calendar days from the date of
the assumption of jurisdiction or the certification or submission of the dispute, as the case may be. The
decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary
arbitrator shall be final and executory ten (10) calendar days after receipt thereof by the parties.
8. Effect of Defiance to the Assumption Order/Certification (Labor Code, Art. 279(a) [264]; 2011
NLRC Rules of Procedure, as amended, RVIII-S4)
§ Manila Hotel Employees Association v. Manila Hotel Corporation, 517 SCRA 349
(2007)
§ Philcom Employees Union v. Philippine Global Communications, 495 SCRA 214
(2006)
9. DOLE Secretary’s Prerogative to Temper the Consequences of the Defiance of the Assumption
Order
§ Nissan Motors Philippines, Inc. v. Secretary of Labor and Employment, 491 SCRA 604
(2006)
F. NLRC JURISDICTION IMPLEMENTING DOLE SECRETARY’S CERTIFICATION ORDER
1. Legal Basis (Labor Code, Art. 278(g) [263]; IRR-BV-RXXII-S15; 2011 NLRC Rules of
Procedure, as amended, RIV-S4, RVIII)
2. Effects of Certification (Labor Code, Art. 278(g) [263]; IRR-BV-RXXII-S15; 2011 NLRC Rules
of Procedure, as amended, RVIII-S3)
3. Procedure in Certified Cases (2011 NLRC Rules of Procedure, as amended, RVIII-S5)
4. Authority of NLRC to Implement the DOLE Secretary’s Certification Order (2011 NLRC Rules
of Procedure, as amended, RVIII-S4)
5. Effect of Defiance of NLRC’s Return-To-Work Order Implementing the DOLE Secretary’s
Certification Order
§ Sarmiento v. Tuico, 162 SCRA 676 (1988)

G. INJUNCTIONS

GENERAL RULE: Injunction cannot be issued against the conduct of picketing of workers. As
guaranteed by the Constitution, picketing is considered a part of the Freedom of Speech.

1. Prohibited; Exceptions (Labor Code, Arts. 266 [254], in relation to 225(e) [218] & 278(g) [263];
IRR-BV-RXXII-S14; 2011 NLRC Rules of Procedure, as amended, RX))
- EXCEPTIONS: NLRC may enjoin the picketing under the following circumstances:
1. Where picketing is carried out through the use of illegal means;
2. Where picketing involves the use of violence and other illegal acts;
3. Where picketing affects the rights of third parties and injunction becomes necessary to protect such
rights. (Chan, Bar Reviewer on Labor Law, 2019, p. 618-619)

Requisites for labor injunctions

Restraining orders and injunctions are not issued ex parte but only upon compliance with the
following requisites:
1. Hearing held after due and personal notice to parties affected;
2. Reception of evidence and the opportunity of cross examination;
3. Findings of fact by the Commission that:
a. Prohibited or unlawful acts have been threatened and committed and will be continued until
restrained;
b. Substantial or irreparable injury to complainant‘s property will follow;
c. That as to each item of relief to be granted, greater injury will be inflicted by the denial; d.
Complainant has no other remedy in law; or Public officials charged with duty to protect
complainant‘s property are unable or unwilling to furnish adequate protection. (Sec. 1, Rule X, 2011
NLRC Rules of Procedure as amended)

2. Innocent Bystander Rule (Labor Code, Art. 279(e) [264])

- Innocent Bystander Rule
Under the “Innocent Bystander Rule,” the thirdparty employers or “innocent bystanders” who have
no employeremployee relationship with the picketing strikers, may apply for injunction with the
regular courts to enjoin the conduct of the picket. Because of the absence of such employer-employee
relationship, the NLRC cannot entertain such application for injunction from innocent bystanders.
(Chan, Bar Reviewer on Labor Law, 2019, p. 619)

The right to picket is not an absolute one. The right may be regulated at the instance of third parties
or "innocent bystanders" if it appears that the inevitable result of its exercise is to create an
impression that a labor dispute with which they have no connection or interest exists between them
and the picketing union or constitute an invasion of their rights. (MSF Tire & Rubber, Inc. v. Court of
Appeals, G.R. No. 128632, August 5, 1999)
In one case the Court upheld a trial court's injunction prohibiting the union from blocking the
entrance to a feed mill located within the PURPLE NOTES 2024 – LABOR LAW DO NOT REPRODUCE 232
compound of a flour mill with which the union had a dispute. Although sustained on a different
ground, no connection was found between the two mills owned by two different corporations other
than their being situated in the same premises. It is to be noted that in the instances cited, peaceful
picketing has not been totally banned but merely regulated. (Republic Flour Mills Workers Association
vs. Reyes, GR No. L-21378, November 28, 1966)