OBJECTIVE OF STRIKE AND LOCKOUT
Ordinarily, a strike is a coercive activity resorted to by laborers to enforce their demands. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted, much less paralyzed. Any interruption or stoppage of production spells loss, even disaster. The capital invested in machinery, factory and other properties connected with the business would be unproductive during a strike or stoppage of the business. On the other hand, the overheard expenses consisting of the salaries of its officials, including real estate taxes and licenses fees continue. Knowing this, the strikers by going on strike seek to interrupt and paralyze the business and production of the company. The employer company is on the defensive. It almost invariably wants the strike stopped and the strikers go back to work so as to resume and continue production. Because of the threat or danger of loss to the company, it does not infrequently give in to the demands of the strikers, just so it can maintain the continuity of its production (Philippine Can Company vs. Court of Industrial Relations and Liberal Labor Union).
NATURE OF LOCKOUT
Lockout means the temporary refusal of any employer to furnish work as a result of an industrial or labor dispute; an employer’s act excluding employees who are union members from his plant (Sta. Mesa Slipways Engineering Co. vs. CIR).
TERMS AND CONDITIONS OF GOVERNMENT EMPLOYMENT
In government employment, it is the legislature and, where properly given delegated power, the administrative heads of government, which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining (Social Security System Employees Association vs. Court of Appeals).
SECOND FACTOR IN LEGALITY OF STRIKE: PROCEDURAL REQUIREMENTS
When the law says “the labor union may strike” should the dispute “remain unsettled until the lapse of the requisite number of days (cooling-off period) from the mandatory filing of the notice,” the unmistakable implication is that the union may not strike before the lapse of the cooling-off period. Similarly, the mandatory character of strike ban after the report on the strike – vote is manifest in the provision that “every case,” the union shall furnish the MOLE with results of the voting “at least seven days before the intended strike, subject to the (prescribed) cooling-off period and 7-day strike ban must both be complied with, although the labor union may take a strike vote and report the same within the statutory cooling-off period (National Federation of Sugar Workers vs. Ovejera).
LEGALITY OF STRIKE NOT DEPENDENT UPON ABILITY OF MANAGEMENT
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45TO GRANT DEMANDS
The demands that gave rise to the strike may not properly be granted under the circumstances of this case, but the fact should not make said demands and the consequent strike illegal. 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. The latter should be kept inviolate. There are adequate instrumentalities which may be resorted to in case of excesses (Central Vegetable Oil Manufacturing vs. Philippine Oil Industry Workers Union).
STRIKE AGAINST EMPLOYEE’S UNFAIR LABOR PRACTICES
Union busting, or interference with the formation of a union, constitutes an unfair labor practice act, hence a valid ground for the declaration of strike (Zamboanga Wood Products, Inc., vs. NLRC).
TESTS IN DETERMINING THE EXISTENCE OF AN UNFAIR LABOR PRACTICE STRIKE There are two tests in determining the existence of an unfair labor practice strike:
1. Objectively, when the strike is declared in protest of unfair labor practice which is found to have been actually committed; and
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Subjectively, 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 (Norton and Harrison Co. Labor Union v. Norton and Harrison Co.).MINORITY UNION STRIKE
By law, the right to be the exclusive representative of all the employees in an appropriate collective bargaining unit is vested in the labor union “designated or selected” for such purpose “by the majority of the employees” in the unit concerned. When a union, after winning in an 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. 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. “To allow said union to continue picketing for the purpose of drawing the employer to collective bargaining table would obviously be to disregard the results of the consent election. To further permit the union’s picketing activities would be to flaunt at the will of the majority.” After a union has been certified as the bargaining representative, a strike by a minority union t compel an employer to bargain with it is unlawful. No labor dispute can exist between a minority union and an employer in such a case (United Restauror’s Employees and Labor Union v. Torres and Delta Development).
DEFIANCE OF RETURN-TO-WORK-ORDER
The return-to-work order should benefit not only those workers who comply with it and regardless of the outcome of the compulsory arbitration proceedings, are entitled to be paid for the work they have actually performed. Conversely, those workers who refuse to obey said return- to-work order and instead wage a strike are not entitled to be paid for work not done or to reinstatement to the positions they have abandoned by their refusal to return thereto as ordered (Sarmiento vs. Tuico).
STRIKE OVER AN UNFAIR LABOR PRACTICE ACT DESPITE A
NO-STRIKE/NO-LOCKOUT PROVISION IN THE CBA
A no-strike prohibition in a collective bargaining agreement is applicable only to economic strikes. In other words, ULP strike is not covered and workers may go on strike based on ULP despite the no-strike provision (Philippine Metal Foundaries, Inc. vs. CIR).
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The union brands as illegal the stipulation in the collective bargaining agreements that “in case of any unfair labor practice on the part of either party, there will be no strikes, lockouts, or any prejudicial action xxx until the question or grievance is resolved by the proper court if not settled through a grievance procedure therein outlined.”
The authorities are numerous which hold that 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 adhered to and respected if their ends have to be achieved (GOP-CCP Workers UNION vs. CIR).
BOOK SIX