which to print the same advertisements – even though the “bogus” is ordinarily not used but is melted down immediately. 2
5. DEMAND FOR PAYMENT OF WORK ALREADY COMPENSATED.
The anti-featherbedding provision has been held not to bar a union from demanding payment for work for which the employer has already paid another person. Hence, a union has been held not guilty of ULP in demanding payment to it of an amount equal to the wages paid by the employer to a non-union employee for work to which the union’s members were entitled. If the work is actually done by employees, there can be no conflict with the anti-featherbedding provision, regardless of whether or not the persons receiving payment are the ones who performed the work. 3
DEMAND OR ACCEPTANCE V.
OF NEGOTIATION FEES OR ATTORNEY’S FEES 1. CONCEPT.
Under Article 260(e) [249 (e)], it is ULP for a labor organization, its officers, agents or representatives to ask for or accept negotiation fees or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute.
VI.
VIOLATION OF THE CBA 1. CONCEPT.
Under Article 260(f) [249 (f)], it is ULP for a labor organization, its officers, agents or representatives to violate a CBA.
2. COUNTERPART PROVISION.
This is the counterpart provision of Article 259(i) [248 (i)] regarding the employer’s act of violating a CBA.
But it must be noted that under Article 261 of the Labor Code, violation of the CBA is generally considered merely a grievable issue. It becomes an unfair labor practice only if the violation is gross in character which means that there is flagrant and/or malicious refusal to comply with the economic (as distinguished from non-economic) stipulations in the CBA. This principle applies not only to the employer but to the labor organization as well.
VII.
CRIMINAL LIABILITY FOR ULPs OF LABOR ORGANIZATION 1. PERSONS LIABLE.
Article 260 [249] is explicit in its provision on who should be held liable for ULPs committed by labor organizations. It states that 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.
F.
PEACEFUL CONCERTED ACTIVITIES
A.FORMS OF CONCERTED ACTIVITIES 1. FORMS OF CONCERTED ACTIVITIES.
There are three (3) forms of concerted activities, namely:
1. Strike;
2. Picketing; and 3. Lockout.
1.
BY LABOR ORGANIZATION
1. Strike; and
2. Picketing.
1. STRIKE.
Musicians Union v. Superior Court of Alameda County, 69 Cal 2d 695, 73 Cal Rptr 201, 447 P2d 313; NLRB v. Gamble Enterprises, Inc., 345 US 117, 97 L Ed 864, 73 S Ct 560.
1
American Newspaper Publishers Association v. NLRB, 345 US 100, 97 L Ed 852, 73 S Ct 552, 31 ALR2d 497; International Hod Carriers Bldg. & Common Laborers Union, 135 2
NLRB 1153 1962 CCH NLRB 10938, 49 BNA LRRM 1638.
Rabouin v. NLRB [CA2] 195 F2d 906.
3
“Strike” means any temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute.
2. PICKETING.
“Picketing” is the act of workers in peacefully marching to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and display of signs, placards and banners intended to inform the public about the dispute.
2.
BY EMPLOYER 1. LOCKOUT.
“Lockout” means the temporary refusal by an employer to furnish work as a result of an industrial or labor dispute.
It consists of the following:
1. Shutdowns;
2. Mass retrenchment and dismissals initiated by the employer.
3. The employer’s act of excluding employees who are union members.
a.
REQUISITES FOR A VALID STRIKE 1. PROCEDURAL BUT MANDATORY REQUISITES FOR A VALID STRIKE.
A strike, in order to be valid and legal, must conform to the following procedural requisites:
1st requisite - It must be based on a valid and factual ground;
2nd requisite - A notice of strike must be filed with the NCMB-DOLE;
3rd requisite - A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior to the taking of the strike vote by secret balloting, informing said office of the decision to conduct a strike vote, and the date, place, and time thereof;
4th requisite - A strike vote must be taken where a majority of the members of the union obtained by secret ballot in a meeting called for the purpose, must approve it;
5th requisite - A strike vote report should be submitted to the NCMB-DOLE at least seven (7) days before the intended date of the strike;
6th requisite - Except in cases of union-busting, the cooling-off period of 15 days, in case of unfair labor practices of the employer, or 30 days, in case of collective bargaining deadlock, should be fully observed; and
7th requisite - The 7-day waiting period/strike ban reckoned after the submission of the strike vote report to the NCMB-DOLE should also be fully observed in all cases.
All the foregoing requisites, although procedural in nature, are mandatory and failure of the union to comply with any of them would render the strike illegal.
I.
FIRST REQUISITE:
EXISTENCE OF VALID AND FACTUAL GROUND/S 1. VALID GROUNDS.
The law recognizes only 2 grounds in support of a valid strike, viz.:
1. Collective bargaining deadlock (Economic Strike); and/or 2. Unfair labor practice (Political Strike).
A strike not based on any of these two grounds is illegal.
2. SOME PRINCIPLES ON THE FIRST REQUISITE.
▪ Violation of CBA, except when gross, is not an unfair labor practice, hence, may not be cited as ground for a valid strike. Ordinary violation of a CBA is no longer treated as an unfair labor practice but as a mere grievance which should be processed through the grievance machinery and voluntary arbitration.
▪ Inter-union or intra-union dispute is not a valid ground.
▪ Violation of labor standards is not a valid ground.
▪ Wage distortion is not a valid ground.
II.
SECOND REQUISITE:
FILING OF A NOTICE OF STRIKE 1. NOTICE OF STRIKE.
No labor organization shall declare a strike without first having filed a notice of strike.
III.
THIRD REQUISITE:
SERVICE OF A 24-HOUR PRIOR NOTICE
In Capitol Medical Center, Inc. v. NLRC, it was imposed as additional requisite that a 24-hour notice must be served to the NCMB-DOLE prior to the taking of the strike vote by secret balloting, informing it of the union’s decision to conduct a strike vote as well as the date, place, and time thereof.
IV.
FOURTH REQUISITE:
CONDUCT OF A STRIKE VOTE 1. MAJORITY APPROVAL OF THE STRIKE.
No labor organization shall declare a strike without the necessary strike vote first having been obtained and reported to the NCMB-DOLE. 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. This process is called “strike vote balloting.”
A STRIKE WITHOUT THE MAJORITY SUPPORT OF THE UNION MEMBERS IS CALLED A
“WILDCAT STRIKE.”
2. PURPOSE.
The purpose of a strike vote is to ensure that the decision to strike broadly rests with the majority of the union members in general and not with a mere minority.
3. DURATION OF THE VALIDITY OF THE MAJORITY APPROVAL OF A STRIKE.
The majority decision to stage a strike is valid for the duration of the dispute based on substantially the same grounds considered when the strike vote was taken.
FIFTH REQUISITE: V.
SUBMISSION OF THE STRIKE VOTE TO NCMB-DOLE 1. PURPOSE FOR REQUIRING A STRIKE VOTE REPORT.
The evident intention of the law in mandatorily requiring the submission of the strike vote report is to afford the NCMB of opportunity to verify the truth and veracity of the majority vote by the union members in support of the intended strike.
2. WHEN TO SUBMIT THE STRIKE VOTE REPORT.
The strike vote report should be submitted to the NCMB-DOLE at least seven (7) days before the actual staging of the intended strike, subject to the observance of the cooling-off periods provided under the law.
VI.
SIXTH REQUISITE:
OBSERVANCE OF THE COOLING-OFF PERIOD 1. GENERAL RULE.
The cooling-off periods provided under the law before the intended date of the actual mounting of the strike are as follows:
1. In case of bargaining deadlock, the cooling-off period is thirty (30) days from the filing of the notice of strike; or
2. In case of unfair labor practice, the cooling-off period is fifteen (15) days from the filing of the notice of strike.
2. EXCEPTION: IN CASE OF UNION-BUSTING.
In case of dismissal from employment of union officers (not ordinary members) duly elected in accordance with the union constitution and by-laws which may constitute union-busting because the existence of the union is threatened by reason of such dismissal, the 15-day cooling-off period does not apply and the union may take action immediately after the strike vote is conducted and the results thereof duly submitted to the regional branch of the NCMB.
In cases of union-busting, only the 15-day cooling-off period need not be observed; all the other requisites must be fully complied with.
3. RECKONING OF THE COOLING-OFF PERIODS.
The start of the cooling-off periods should be reckoned from the time the notice of strike is filed with the NCMB-DOLE, a copy thereof having been served on the other party concerned.
4. PURPOSE OF THE COOLING-OFF PERIODS.
The purpose of the cooling-off periods is to provide an opportunity for mediation and conciliation of the dispute by the NCMB-DOLE with the end in view of amicably settling it.
VII.
SEVENTH REQUISITE:
7-DAY WAITING PERIOD OR STRIKE BAN 1. PURPOSE OF THE 7-DAY WAITING PERIOD OR STRIKE BAN.
The seven (7) day waiting period is intended to give the NCMB-DOLE an opportunity to verify whether the projected strike really carries the approval of the majority of the union members.
2. WAITING PERIOD/STRIKE BAN VS. COOLING-OFF PERIOD.
The 7-day waiting period or strike ban is a distinct and separate requirement from the cooling-off period prescribed by law. The latter cannot be substituted for the former and vice-versa.
The cooling-off period is counted from the time of the filing of the notice of strike. The 7-day waiting period/strike ban, on the other hand, is reckoned from the time the strike vote report is submitted to the NCMB-DOLE.
Consequently, a strike is illegal for failure to comply with the prescribed mandatory cooling-off period and the 7-day waiting period/strike ban after the submission of the report on the strike vote.
3. BOTH MUST BE COMPLIED WITH SEPARATELY AND DISTINCTLY FROM EACH OTHER.
The requirements of cooling-off period and 7-day waiting period/strike ban must both be complied with.
The labor union may take the strike vote and report the same to the NCMB-DOLE within the statutory cooling-off period. In this case, the 7-day waiting period/strike ban should be counted from the day following the expiration of the cooling-off period. A contrary view would certainly defeat and render nugatory the salutary purposes behind the distinct requirements of cooling-off period and the waiting period/strike ban.
The NCMB Primer on Strike, Picketing and Lockout, issued by the NCMB, the agency of government 1 directly tasked with the implementation and enforcement of this particular legal provision and requirement, is very clear on this point, thus:
“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.” 2
In other words, the seven (7) days should be added to the cooling-off period of fifteen (15) days, in case of unfair labor practice, or thirty (30) days, in case of collective bargaining deadlock and it is only after the lapse of the total number of days after adding the two (2) periods that the strike/lockout may be lawfully and validly staged.
While there was no categorical declaration on this point, the Supreme Court, in holding in the 2010 case of Phimco Industries, Inc. v. Phimco Industries Labor Association (PILA), that respondents fully satisfied the 3 legal procedural requirements, noted that the strike notice grounded on collective bargaining deadlock was filed on March 9, 1995. Consequently, the 30-day cooling-off period would have lapsed on April 9, 1995. The strike vote was reached on March 16, 1995 and the notification thereof was filed with the DOLE on March 17, 1995 or well within the cooling-off period. Based on the said rule in the NCMB Primer, the strike could only be validly staged starting from April 17, 1995 and onwards, i.e., after the lapse of 7 days from April 9, 1995. Hence, since the actual strike was launched only on April 25, 1995, there was clearly full compliance with the requisites.
Example: In a case where the notice of strike grounded on ULP is filed on October 1, 2015, and the strike vote is taken within the cooling-off period, say, on October 5, 2015 and the strike vote report showing majority support for the intended strike is submitted to the NCMB-DOLE the following day, October 6, 2015, the question is when can the union legally stage the strike?
Following the above principle, the answer obviously is on October 24, 2015 or any day thereafter. This is so because the 15-day cooling-off period for ULP expires on October 16 and adding the 7-day strike ban which
“should be counted from the day following the expiration of the cooling-off period,” the 7th day would be on October 23, 2015. Obviously, the strike cannot be conducted on the 7th day but rather after the lapse thereof; hence, it is only on October 24, 2015 and onwards that the union may lawfully conduct the strike.
4. SOME PRINCIPLES ON COOLING-OFF PERIOD AND 7-DAY WAITING PERIOD.
▪ Deficiency of even one (1) day of the cooling-off period and 7-day strike ban is fatal.
▪ One-day strike without complying with the 7-day strike ban is illegal.
b.
REQUISITES FOR A VALID LOCKOUT 1. SUBSTANTIALLY SIMILAR REQUISITES AS IN STRIKE.
2nd Edition, December 1995.
1
No. 6 thereof.
2
G.R. No. 170830, Aug. 11, 2010.
3
With a slight, insignificant variation, the procedural but mandatory requisites for a valid strike discussed above are substantially similar to those applicable for valid lockout. For purposes of ease and clarity, the same are presented as follows:
• 1st requisite - It must be based on a valid and factual ground;
• 2nd requisite - A notice of lockout must be filed with the NCMB-DOLE;
• 3rd requisite - A notice must be served to the NCMB-DOLE at least twenty-four (24) hours prior to the taking of the lockout vote by secret balloting, informing said office of the decision to conduct a lockout vote, and the date, place, and time thereof;
• 4th requisite - A lockout vote must be taken where a majority 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 the purpose, must approve it;
• 5th requisite - A lockout vote report should be submitted to the NCMB-DOLE at least seven (7) days before the intended date of the lockout;
• 6th requisite - The cooling-off period of 15 days, in case of unfair labor practices of the labor organization, or 30 days, in case of collective bargaining deadlock, should be fully observed; and
• 7th requisite - The 7-day waiting period/lockout ban reckoned after the submission of the lockout vote report to the NCMB-DOLE should also be fully observed in all cases.
c.
REQUISITES FOR LAWFUL PICKETING
1. THE REQUISITES FOR A VALID STRIKE ARE NOT APPLICABLE TO PICKETING.
The seven (7) requisites for a valid strike discussed above do not apply to picketing.
2. REQUISITES FOR LAWFUL PICKETING.
The most singular requirement to make picketing valid and legal is that it should be peacefully conducted.
Based on the foregoing provision, the requisites may be summed up as follows:
1. The picket should be peacefully carried out;
2. There should be no act of violence, coercion or intimidation attendant thereto;
3. The ingress to (entrance) or egress from (exit) the company premises should not be obstructed; and 4. Public thoroughfares should not be impeded.
3. RIGHT TO PICKET IS PROTECTED BY THE CONSTITUTION AND THE LAW.
Unlike a strike which is guaranteed under the Constitutional provision on the right of workers to conduct peaceful concerted activities under Section 3, Article XIII thereof, the right to picket is guaranteed under the freedom of speech and of expression and to peaceably assemble to air grievances under Section 4, Article III (Bill of Rights) thereof.
4. EFFECT OF THE USE OF FOUL LANGUAGE DURING THE CONDUCT OF THE PICKET.
In the event the picketers employ discourteous and impolite language in their picket, such may not result in, or give rise to, libel or action for damages.
5. PICKETING VS. STRIKE.
(a) To strike is to withhold or to stop work by the concerted action of employees as a result of an industrial or labor dispute. The work stoppage may be accompanied by picketing by the striking employees outside of the company compound.
(b) While a strike focuses on stoppage of work, picketing focuses on publicizing the labor dispute and its incidents to inform the public of what is happening in the company being picketed.
(c) A picket simply means to march to and fro in front of the employer’s premises, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. It is but one strike activity separate and different from the actual stoppage of work.
Phimco Industries, Inc. v. Phimco Industries Labor Association (PILA). - While the right of 1 employees to publicize their dispute falls within the protection of freedom of expression and the right to peaceably assemble to air grievances, these rights are by no means absolute. Protected picketing does not extend to blocking ingress to and egress from the company premises. That the picket was moving, was peaceful and was not attended by actual violence may not free it from taints of illegality if the picket effectively blocked entry to and exit from the company premises.
6. WHEN PICKET CONSIDERED A STRIKE.
In distinguishing between a picket and a strike, the totality of the circumstances obtaining in a case should be taken into account.
Santa Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Phils., Inc. - Petitioners contend 2 that what they conducted was a mere picketing and not a strike. In disagreeing to this contention, the High Court emphasized that it is not an issue in this case that there was a labor dispute between the parties as petitioners had notified the respondent of their intention to stage a strike, and not merely to picket. Petitioners’ insistence to stage a
G.R. No. 170830, Aug. 11, 2010.
1
G.R. Nos. 164302-03, Jan. 24, 2007.
2
strike is evident in the fact that an amended notice of strike was filed even as respondent moved to dismiss the first notice. The basic elements of a strike are present in this case: 106 members of petitioner Union, whose respective applications for leave of absence on September 21, 1999 were disapproved, opted not to report for work on said date, and gathered in front of the company premises to hold a mass protest action. Petitioners deliberately absented themselves and instead wore red ribbons and carried placards with slogans such as: “YES KAMI SA STRIKE,”
strike is evident in the fact that an amended notice of strike was filed even as respondent moved to dismiss the first notice. The basic elements of a strike are present in this case: 106 members of petitioner Union, whose respective applications for leave of absence on September 21, 1999 were disapproved, opted not to report for work on said date, and gathered in front of the company premises to hold a mass protest action. Petitioners deliberately absented themselves and instead wore red ribbons and carried placards with slogans such as: “YES KAMI SA STRIKE,”