lockout?
A: The requirements for a valid strike or lockout are as follows:
1. It must be based on a valid and factual ground; 2. A strike or lockout notice shall be filed with the
NCMB at least 15 days before the intended date of the strike or lockout if the issues raised are unfair labor practices, or at least 30 days before the intended date thereof if the issue involves bargaining deadlock.
Note: The failure of the union to serve the company a
copy of the notice of strike is a clear violation of Section 3, Rule XXII, Book V of the Rules Implementing the LC. The Constitutional precepts of due process mandate that the other party be notified of the adverse action of the opposing party [Filipino Pipe and
Foundry Corp. v. NLRC, G.R. No. 115180, (1999)].
3. In cases of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the result thereof submitted to the DOLE.
4. Notice of conduct of strike vote 24 hours before the intended strike is filed with the DOLE. 5. A strike must be approved by a majority vote of
the members of the union and a lockout must be approved by a majority vote of the members 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.
6. A strike or lockout vote shall be reported to the NCMB-DOLE Regional Branch at least 7 days before the intended strike or lockout subject to the cooling-off period.
7. In the event the result of the strike/lockout 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 [NSFW vs. Ovejera, G.R. No. 59743, (1982)].
In case of dismissal from employment of union officers which may constitute union busting, the time requirement for the 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.
Note: The purpose of the 7 day strike ban is to give
DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members in addition to the cooling-off period before the actual strike [Lapanday Workers’
Union, et.al. v. NLRC, G.R. Nos. 95494-97, (1995)].
8. The dispute must not be the subject of an assumption of jurisdiction by the President or the SLE, a certification for compulsory arbitration, or submission to compulsory or voluntary arbitration nor a subject of a pending case involving the same grounds for the strike or lockout.
Q: What is a cooling-off period?
A: It is the period of time given by the NCMB to mediate and conciliate the parties. It is the span of time allotted by law for parties to settle their disputes in a peaceful manner before staging a strike or lockout.
Note: Cooling-off and waiting period may be done
simultaneously.
Q: Johnny is the duly elected President and principal union organizer of the Nagkakaisang Manggagawa
ng Manila Restaurant (NMMR), a legitimate labor
organization. He was unceremoniously dismissed by management for spending virtually 95% of his working hours in union activities. On the same day Johnny received the notice of termination, the labor union went on strike.
Management filed an action to declare the strike illegal, contending that:
1. The Union did not observe the “cooling-off period” mandated by the LC; and
2. The Union went on strike without complying with the strike-vote requirement under the LC.
Rule on the foregoing contentions with reasons. (2009 Bar Question)
A:
1. Yes. The conduct of a strike action without observing the cooling-off period is a violation of one of the requirements of law which must be observed. The cooling-off periods required by Art. 263 (c) and (f) of the LC are to enable the DOLE to exert efforts to amicably settle the controversy and for the parties to review and reconsider their respective positions during the cooling-off periods. But the LC also provides that if the dismissal constitutes union busting, the union may strike immediately.
2.
3. Yes. The conduct of the strike action without a strike vote violates Art. 263 (f) – “In every case, the union or the Er shall furnish the DOLE the results of the voting at least 7 days before the intended strike” to enable the DOLE and the parties to exert the last effort to settle the dispute without strike action.
Q: NFSW, the bargaining agent of Central Azucarera de la Carlota (CAC) rank and file employees, filed a notice of strike based on non-payment of the 13th month pay and 6 days thereafter they held the strike. A day after the commencement of the strike, a report of the strike-vote was filed by NFSW with DOLE. CAC filed a petition to declare the strike illegal due to non-compliance with the 15-day cooling off period and the strike was held before the lapse of 7 days from the submission to the DOLE of the result of the strike vote. Was the strike held by NFSW legal?
A: No. The cooling-off period in Art. 264(c), LC and the 7-day strike ban after the strike-vote report prescribed in Art. 264(f) of the LC were meant to be mandatory. The law provides that “the labor union may strike” should the dispute “remain unsettled until the lapse of the requisite number of days from the filing of the notice”, this clearly implies that the union may not strike before the lapse of the cooling- off period. The cooling-off period is for the MOLE to exert all efforts at mediation and conciliation to effect a voluntary settlement.
The mandatory character of the 7-day strike ban is manifest in the provision that “in every case” the union shall furnish the DOLE with the results of the voting “at least 7 days before the intended strike.” This period is to give time to verify that a strike vote was actually held [NFSW v. Ovejera, G.R. No. L-59743, (1982)].
Q: What is the purpose of giving notice of the conduct of a strike vote to the NCMB at least 24 hours before the meeting for the said purpose? A:
1. Inform the NCMB of the intent of the union to conduct a strike vote;
2. Give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent any acts of violence and or irregularities;
3. Ample time to prepare for the deployment of the requisite personnel [Capitol Medical Center v. NLRC, G.R. No. 147080, (2005)].
Q: Is a no strike/lockout clause legal?
A: Yes, but it is applicable only to economic strikes, not ULP strikes. As a provision in the CBA, it is a valid stipulation although the clause may be invoked by an Er only when the strike is economic in nature or one which is conducted to force wage or other concessions from the Er that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on ULP [Panay Electric Co. v. NLRC, G.R. No. 102672, (1995); Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos, G.R. No. 113907, (2000)]. Q: What is a preventive mediation case?
A: It involves labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB. (Sec. 1 [mm], Rule I, Book V, IRR)
Note: The regional branch may treat the notice as
preventive mediation case upon agreement of the parties.
Q: Give the legal basis for the conversion of a notice of strike to preventive mediation.
A: It is in pursuance of the NCMB’s duty under the Rules Implementing the Labor Code to exert “all efforts at mediation and conciliation to enable the parties to settle the dispute amicably” and in line with the state policy of favoring voluntary modes of settling labor disputes. And a strike mounted by the union after the NCMB dropped the notice of strike from its docket of notice of strikes and during the pendency of preventive mediation proceedings would be illegal [San Miguel Corporation v. NLRC et al., G.R. No. 119293, (2003)].
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