LEP Labor Law 2023

Atty. Paciano F. Fallar Jr.

SSCR-CoL

Answers to Bar Questions on

STRIKES & LOCKOUTS

Q1. Savoy Department Store (SDS) adopted a policy of hiring salesladies on five-month
cycles. At the end of a saleslady's five-month term, another person is hired as
replacement. Salesladies attend to store customers, were SDS uniforms, report at
specified hours, and are subject to SDS workplace rules and regulations. Those who
refuse the 5-month employment contract are not hired.

The day after expiration of her 5-month engagement, Lina wore her SDS white and blue
uniform and reported for work but was denied entry into the store premises. Agitated,
she went on a hunger strike and stationed herself in front of one of the gates of SDS.
Soon thereafter, other employees whose 5-month term had also elapsed joined Lina's
hunger strike.

The owner of SDS considered the hunger strike staged by Lina, et al.., an eyesore and
disruptive of SDS business. He wrote the Secretary of Labor a letter asking him to
assume jurisdiction over the dispute and enjoin the hunger "strike". What answer will
you give if you were the Secretary of Labor?

Answer

I will not assume jurisdiction over the dispute. While there may be a labor dispute, it will
not cause a strike since the "hunger strike" in this case is not a strike. There is no
stoppage of work or operations. It was the employer which prevented the employees
on "hunger strike"" from continuing with their work.

Notes:

Note 1: Oftentimes, issues in labor law would depend on the elements of a concept. In this case, it
is "strike. In other cases, it could be "labor dispute" , " employee" , or some other concepts.

Note 2: The proposed answer is simpler than the argument that the situation does not involve an
industry indispensable to the national interest, over which the SOLE has broad discretion.

Note 3: The practical question is what could the department store legally do to evict the hunger
strikers? Since the premises are private property, the hunger strikers may be considered to be
trespassers and could be evicted extrajudicially under the doctrine of self-help. It is not a proected
activity This is just a musing. You may do your own study.

Q2. On the day that the Union could validly declare a strike, the Secretary of Labor
issued an order assuming jurisdiction over the dispute and enjoining the strike, or if one
has commenced, ordering the striking workers to immediately return to work. The
return-to-work order required the employees to return to work within 24 hours and was
served at 8 a.m. of the day the strike was to start. The Order at the same time directed
the Company to accept all employees under the same terms and conditions of
employment prior to the work stoppage. The Union members did not return to work on
the day the Secretary's assumption order was served nor on the next day; instead, they
held a continuing protest rally against the company's alleged unfair labor practices.

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Because of the accompanying picket, some of the employees who wanted to return to
work failed to do so. On the 3rd day, the workers reported for work, claiming that they
do so in compliance with the Secretary's return-to-work order that binds them as well as
the Company. The Company, however, refused to admit them back since they had
violated the Secretary's return-to-work (RTW) order and are now considered to have
lost their employment status.

The Union officers and members filed a complaint for illegal dismissal arguing that there
was no strike but a protest rally which is a valid exercise of the workers constitutional
right to peaceable assembly and freedom of expression. Hence, there was no basis for
the termination of their employment.

You are the Labor Arbiter to whom the case was raffled. Decide whether there was
strike and whether it was legal.

Answer

There was a strike because the strikers' refusal to return to work is a temporary
stoppage of work by the employees' concerted action. Defiance of an assumption order
is a prohibited activity which renders the strike illegal. The liability of the strikers may not
be uniform, however, since those who were prevented by the picketers from returning
to work immediately may argue that they did not deliberately defy the RTW order.

Notes

Note 1: The Question is imprecise. The issue is the legality of the termination, not the validity of the
strike. The complaint is for illegal dismissal and is filed by the employees. It is not a complaint for
illegal strike filed by the company.

Note 2: If I were the Labor Arbiter or the counsel for any of the parties, I would not frame the issue
as whether the strike was legal but whether there was defiance of the RTW order which would justify
the termination. This was after all the ground relied upon by the employer in terminating the strikers.
That the strike itself is legal (e.g., it was based on ULP and complied with the procedures) would not
matter if the strikers defied the RTW order.

Note 3: The facts of the Q are rather odd. The unionists were not holding a strike or even a picket
prior to the assumption order. Hence, the RTW order appears misplaced. A status quo order is
more proper.

Note 4 : Moreover, some of the strikers "wanted to return to work failed to do so" because of the
pickets. These strikers would have a tenable defense to claim they did not defy the RTW but that
they were prevented to comply by reasons beyond their control. It may turn out that some of the
employees did not have sufficient time to immediately report back for work as they had gone to the
province in the meantime (BLTB vs NLRC, GR No. 101858, 21 August 1992) or when there are
physical or legal impossibility which would excuse non-compliance like the employee being on
maternity leave (Rodriguez vs Philippine Airlines, G.R. No. 178501, 11 January 2016).

Q3. 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. Is the strike legal?

Answer

The strike is illegal because the union failed to observe the procedural requisites for a
valid strike. Although staging of a strike grounded on union busting is exempt from
observing the 30-day cooling off period, it is not exempt from the other mandatory

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requirements of the law like: a) filing of NOS; b) conduct of strike vote; c) submission of
strike vote; and, d) and the 7-days strike ban from submission of strike vote.

Note

Since the facts of the Question clearly indicate the fatal procedural infirmities, there is no further
need to argue that the facts do not support a case for union busting.

Q4: Fifty percent (50%) of the employees of Grandeur Company went on strike after
negotiations for a collective bargaining agreement ended in a deadlock. Grandeur
Company, being a public utility, immediately petitioned the Secretary of Labor and
Employment to assume jurisdiction and certify the case to the NLRC. On the fourth day
of the strike and before the DOLE Secretary could assume jurisdiction or certify the
case to the NLRC, the strikers communicated in writing their offer to return to work.
Grandeur Company though its President refused to accept the offer of the strikers
because it realized that they were not at all capable of paralyzing the operations of the
company. The strikers accused Grandeur Company of illegal lockout. Has Grandeur
Company committed illegal lock out by refusing to accept the offer of the strikers to
return to work? Discuss fully.

Answer

Yes. A strike does not sever the employer-employee relationship; hence, the strikers
can always demand return to their work. By refusing to reinstate the workers, the
company committed a lock out which is illegal because it did not comply with the
statutory requirements of :a) notice to declare a lock out ; b) lock out vote , which must
be approved by a majority of the board of directors; c) submission of the results of the
lock out vote to the DOLE seven (7) days before the intended lock out; and, d) 30-day
colling off period (Art. 278[f], Labor Code]).

Notes

Note 1: Having initiated the petition, the company would have no reason not to reinstate the
employees since an assumption of jurisdiction would inevitably result in a RTW order.

Note 2: If the company believes that an illegal strike has occurred, it could file a complaint for illegal
strike with the Labor Arbiter's office. Or, if the SOLE assumes jurisdiction, it could submit the same
issue for his resolution.

Note 3: The company could also initiate disciplinary proceedings against union officers and
members who may have committed illegal acts during the strike. And thereafter, impose the
appropriate disciplinary sanctions including possible dismissal if warranted.

Note 4: The returning strikers are not entitled to back wages, since the "no work no pay " principle
applies. But if there is an illegal lock out by refusal to re-admit the strikers, they would be entitled to
back wages from the start of the lock out which constitutes illegal dismissal.

Q5. On the first day of collective bargaining negotiations between rank-and-file Union A
and B Bus Company, the former proposed a P45/day increase. The company insisted
that ground rules for negotiations should first be established, to which the union agreed.
After agreeing on ground rules on the second day, the union representatives reiterated
their proposal for a wage increase. When company representatives suggested a
discussion of political provisions in the Collective Bargaining Agreement as stipulated in
the ground rules, union members went on mass leave the next day to participate in a
whole-day prayer rally in front of the company building.

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The company filed a petition for assumption of jurisdiction with the Secretary of Labor
and Employment. The Union opposed the petition, arguing that it did not intend to stage
a strike. Should the petition be granted? Explain.

Answer

Yes, the petition should be granted on the premise that the bus transport company is an
industry indispensable to the national interest. It is not necessary that an actual strike
occur before the DOLE Secretary could assume jurisdiction; it is sufficient that there
exists a labor dispute likely to cause a strike in an industry indispensable to the national
interest. And in this case, there was already a strike when the union members went on a
mass leave to participate in a prayer rally in front of the company building.

Note

In my opinion, the term "industry indispensable to the national " should not strictly refer to the
industry itself. Instead, the term must be understood in a particular company's impact on the national
interest if its operations are disrupted. Thus, education may be an industry indispensable to the
national interest but it cannot be seriously argued that the operations of a kindergarten with only 100
pupils involve national interest as to require intervention by the Secretary of DOLE. Similarly, mass
transportation may be an industry indispensable to the national interest but a strike in a bus
company with only 10 units hardly qualifies as having an impact which demands assumption of
jurisdiction. My view is that assumption of jurisdiction should be exercised only if the national interest
demands it (see Concurring Opinion of J. Panganiban in Phimco industries vs Sec, Brillantes, GR
No. 120751, 17 March 1999)

Q6. Several employees and members of Union A were terminated by Western Phone
Co. on the ground of redundancy. After complying with the necessary requirements, the
Union staged a strike and picketed the premises of the company. The management
then filed a petition for the Secretary of Labor and Employment to assume jurisdiction
over the dispute. The Secretary issued an Order to assume jurisdiction and directed all
striking workers to return to work within 24 hours, except those who were terminated
due to redundancy. Was the Order legal? Explain

Answer

No. The assumption order is legal because telecommunications is an industry

indispensable to the national interest. But the portion excluding the retrenched
employees is void because the law is clear in mandating that all striking employees
shall be readmitted to work under the same terms and conditions prevailing before the
strike (Art. 278 [g] , Labor Code) . Excepting the employees terminated due to
redundancy from those who are required to be readmitted work would be
discriminatory.

Besides, the validity of the redundancy is the root cause of the labor dispute. The
Secretary of DOLE must resolve such core issue, and excluding the laid off employees
from the RTW order would only exacerbate the labor dispute.

Notes

Note 1: The Question "was the Order legal" actually involves two (2) aspects. The first refers to the
assumption of jurisdiction with RTW order ( because the industry may not be indispensable to the
national interest) . The second pertains to the exclusion from the RTW order of those terminated for
redundancy.

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It would seem to me that what the Question refers to is the exclusion in the RTW order of those
terminated for redundancy. The Question apparently seeks examinee's understanding of the
purpose of the RTW and the concept of status quo ante.

The safest answer is to address both issues.

Note 2: The opposite situation happened in a decided case (YSS Employees Union -PTGWO vs
YSS Laboratories (GR No. 155125, 04 December 2009), The Secretary of DOLE included in the
RTW order the employees who had been retrenched. The Supreme Court ruled that the Secretary
did not commit grave abuse of discretion in ordering reinstatement while the retrenchment case is
being resolved. This would seem to go beyond the status quo ante, but is nonetheless justified
under his authority to suspend the effects of termination proceeding pending resolution of the case
that may cause a serious labor dispute ( Art.292 [b] of the Labor Code)

Note 3: It may also be argued that the exclusion of the retrenched employees from the RTW order is
also legal, because the Secretary's authority is plenary and broad. Hence, it is not grave abuse of
discretion for the Secretary to consider the status quo ante as the situation existing prior to the
strike, where the redundancy had already been implemented. The laid off employees could always
file a complaint for illegal dismissal ( even ULP) with the Labor Arbiter. But then , this recourse by
the Secretary would seem to negate the assumption order ( why assume at all and yet decline to
rule on the very issue which prompted the dispute in the first place?).

Q7. Union X staged a strike in front of Company B because of CBA deadlock. During
the strike, Company B hired replacement workers. Upon resuming their employment,
the strikers found that Company B hired replacement workers in their place. Is
Company B obliged to reinstate the returning workers? Explain.

Answer

Yes, Company B is obliged to reinstate the returning workers. The hiring of replacement
for the striking workers is allowed . However, the law states 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 ( Art. 2790 [a], last sentence, Labor Code).

Notes:

Note 1: It is odd that "after resuming their employment", there would still be an issue "if the
Company is obliged to reinstate the striking workers".

Note 2: US jurisprudence makes a distinction on the striking employee's right to reinstatement after
the conclusion of a lawful strike. One summary goes like this

Employers have the right to hire replacement workers for their striking employees.
The striking employees have the right to reinstatement at the conclusion of the strike.
The extent of the striking worker’s reinstatement rights depends on whether the strike
is an economic strike or an unfair labor practice strike. If the strike is an economic
strike, the employer has the right to hire permanent replacement workers. At
the conclusion of the economic strike, the striking working is not entitled to
unconditionally receive her old job back. Instead, she is placed on a
preferential hiring list. On the other hand, if the strike is an unfair labor practice
strike, the employer may only hire temporary replacement workers. At the conclusion
of the unfair labor practice strike, the striking workers are entitled to their old positions
back if they make an unconditional offer to return to work.

This jurisprudence was cited in two old (2) cases ( Consolidated Labor Association vs Marsman, GR
No. L-17038, 31 July 1964 and Insular Life Employees Association vs Insular Life, GR No. L-2529,
30 January 1971) which are pre-Labor Code (1974). These cases are also cited in 2 Chan ( 2005
ed., p.509). I have no idea of the justification for the distinction, and the commentaries do not provide
any help. Moreover, I am not aware of similar cases after the promulgation of the Labor Code.

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Azucena ( 2 Azucena 1999 ed, 2001 Reprint, p. 520 ) cites a case which does not give a categorical
answer: "The replacements did not gain permanent right to the position they held. Nor could such
temporary employment bind the employer to retain permanently the strikers ( Feati vs Bautista , GR
No. L-21278, 27 December 1966).

This may be because of the institution of the AJ mechanism, in which all reinstatement orders
proceed from the Secretary of DOLE and no distinction is made whether the strike is based on ULP
or bargaining deadlock. What matters is whether the strike is lawful or not, and whether the
employee is a union officer or a mere member.

If ever this Question is repeated in the Bar, I would reiterate the above-suggested answer because
Art. 278 (a) quoted above does not make any distinction whether the strike is ULP or bargaining
deadlock. Moreover, decisions promulgated after 1974 do not likewise make such distinction as
they confine themselves to the status of the striker ( officer or member) .

Note 3: There is also a provision in Art. 219 (f) which defines an "employee" as : "It shall include
any individual whose work has ceased as a result of or in connection with any current labor dispute
or because of any unfair labor practice if he has not obtained any other substantially equivalent
and regular employment"

As explained in my Notes on ULP, I find the meaning of this definition uncertain because it clashes
with the well-known doctrine that employees who contest their dismissals have the right to live and
find employment elsewhere during the pendency of their cases (Campol vs Mayor BAlao-as GR No.
197634, 28 November 2016) and that an interim appointment does not equate to abandonment of
one's employment, since it would be inconsistent with the filing and maintaining of the illegal
dismissal suit ( Buenviaje vs Court of Appeals, GR No. 147806, 12 November 2002). Hence, they can
vote in a CE. I do not subscribe to the view that one necessarily waives or forfeits one's employment
simply because one has found a better job in the meantime. That ignores the reality that one has to
survive, and would further reward erring employers who illegally dismiss employees. At any rate, the
definition does not explicitly state that obtaining an interim employment while on strike is tantamount
to resignation.

I would only agree that a striker with a new employment could only be denied reinstatement if he is a
union officer adjudged to have joined an illegal strike or, not being an officer, committed illegal acts
during the strike.

Q10. In response to Company X's unfair labor practices, a union officer instructed its
members to stop working and walk out of the company premises. After three (3) hours,
they voluntarily returned to work. Was there a strike and was it a valid activity?

Answer

Yes, the instant sit down and walk out is a strike since there was temporary stoppage of
work as a result of concerted employee action. It is illegal for non-compliance with the
mandatory procedures .

Notes

Note 1: It is another matter whether the strikers should be meted the penalty of dismissal,
considering the strike lasted only three (3) hours and there is no statement which suggests serious
damage or prejudice to the company.

Note 2: There is jurisprudence which upheld the dismissal of union officers for an illegal strike which
lasted for only one (1) day ( Samahang Manggagawa sa Sulpico Lines vs Sulpicio Line,s GR No,
140992, 25 March 2004).

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Q8. When there is no recognized collective bargaining agent, can a legitimate labor
organization validly declare a strike against the employer?

Answer

Yes, but only for ULP. It cannot strike based on bargaining deadlock, since it does not
have right to negotiate a CBA.

Note

The legal basis for ULP strike is Art. 278 (b) of the Labor Code. For economic strike , it is Art. 278
(c).

Q9. As a result of a bargaining deadlock between Lazo Corporation and Lazo

Employees Union, the latter staged a strike. During the strike, several employees
committed illegal acts. Eventually, its members informed the company of their intention
to return to work.

(a) Can Lazo Corporation refuse to admit the strikers?

Answer

No. Lazo Corporation may not refuse the admission of the strikers since the latter have
the right to abandon their strike and return to their work. It must accord the employees
due process, should it decide to sanction them.

Nonetheless, Lazo Corporation may immediately hand them a notice of charge with
notice of preventive suspension. The commission of violent acts during the strike
provides the basis for the commencement of disciplinary action , while the notice of
preventive suspension would serve a preventive measure as the employees' continued
presence poses a serious and imminent threat to company property and the safety of
the other employees.

Note

In case of strike-related violence, it has been held that:

It is the view of PLDT that in the dismissal of employees for strike-

related violence, it is sufficient to merely declare the latter to have
lost their employment without having to comply with any procedure
for their termination.

PLDT is mistaken. Art. 277 (b) in relation to Art. 264 (a) and
(e) recognizes the right to due process of all workers, without distinction as
to the cause of their termination. Where no distinction is given, none is
construed. Hence, the foregoing standards of due process apply to
the termination of employment of Suico, et al. even if the cause
therefor was their supposed involvement in strike-related violence
prohibited under Art. 264 (a) and (e). ( Suico vs NLRC, GR No. 146762, 30
January 2007).

b) Assuming the company admits the strikers, can it later on dismiss those employees
who committed illegal acts?

Answer

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Yes. The company may admit the workers on the express condition that it reserves the
right to initiate disciplinary proceedings against strikers who may have participated in
the illegal strike or may have committed illegal acts during the strike.

Notes

Note 1: Note that the Question did not state that the strike (despite the illegal acts committed by
some of the strikers) has been declared illegal . The employees have the right to return to work
since a strike does not sever the employer–employee relationship. There is no confusion on
this part of the question.

Note 2: The confusion lies in the second aspect. There is a case which postulated that that the
company, by admitting back to work the strikers who committed illegal acts, is estopped from
imposing disciplinary sanction against said employees. On its face, I find this proposition difficult to
comprehend. Since the employer is compelled by law to accept the returning workers, why should
such compliance be deemed a waiver of its right to initiate disciplinary proceedings? What’s the
use of admitting the strikers in order to give them due process, only to prohibit the company from
exercising its right to discipline them on the ground of estoppel or waiver? It does not make sense.

I looked up at one the “suggested answers” and I found out that this particular answer cited
Reformist Union vs NRC (GR No. 120482, 27 Jan 1997) as precedent. This is unfortunate, because
the admission of the strikers in that case was due to a settlement agreement.

"The dispute or strike was settled when the company and the union entered
into an agreement on 19 January 1990 where the private respondents agreed
to accept all employees who by then, had not yet returned to work. By
acceding to the peaceful settlement brokered by the NLRC, the private
respondents waived the issue of the illegality of the strike".

There is no settlement agreement in the facts of the Bar Question. Hence, the concept of waiver or
estoppel is entirely out of place.

Q10. Liwanag Corporation is engaged in the power generation business. A stalemate

was reached during the collective bargaining negotiations between its management and
the union. After following all the requisites provided by law, the union decided to stage a
strike. The management sought the assistance of the Secretary of Labor and
Employment, who assumed jurisdiction over the strike and issued a return-to-work
order. The union defied the latter and continued the strike. Without providing any notice,
Liwanag Corporation declared everyone who participated in the strike as having lost
their employment.

a) Was Liwanag Corporation’s action valid?

Answer

No. It is true that defiance of an assumption order and a return-to-work order is an

illegal act which is a ground for employee termination. However, an individual employee
may have a valid reason to explain his seeming defiance (e.g. he is abroad,
hospitalized, quarantined, detained, etc.). A unilateral declaration by the employer
would be premature, and may constitute illegal dismissal. The employer should wait for
the resolution by the Secretary of Labor , who is allowed by jurisprudence to rule on the
consequences of the defiance of the RTW order.

Notes

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Note 1: The situation contemplated by the bar question will hardly occur in real life. As the strikers
had defied the return-to-work order, why would the company bother at this point to declare them
dismissed from employment? The strikers are on the picket lines, not inside the company premises.
Any company declaration that the strikers are already dismissed is pointless, as it has no real
consequence. Besides, terminating the strikers may even be a violation of the assumption
order which mandates prescribes the observance of the status quo ante. What the company
would have done is to submit as an issue for resolution by the Secretary of DOLE the unionists'
defiance of the return-to-work order, and argue that the Secretary should consider them by their
illegal act to have forfeited their right to their employment. The Secretary, under his plenary
authority, would have the right to declare the unionists' loss of employee status.

Having held the strike illegal and having found that PEU's officers and
members have committed illegal acts during the strike, we hold that no writ of
execution should issue for the return to work of PEU officers who participated
in the illegal strike, and PEU members who committed illegal acts or who
defied the return-to-work orders that the Secretary issued on 19 November
1997 and 28 November 1997. The issue of who participated in the illegal
strike, committed illegal acts, or defied the return-to-work orders is a
question of fact that must be resolved in the appropriate proceedings
before the Secretary of Labor.( Philcom Employees Union vs Philippine
Global Communications, GR No. 144315, 17 July 2006).

Note 1: The individual workers committing the illegal acts must be identified. Simply referring to
"strikers" or "complainants in this case" is not enough to justify their dismissal ( Association of
Independent Union in the Philipines vs Cenapro Chemcial Corp., GR No. 120505, 25 march 1999).

b) If, before the DOLE Secretary assumed jurisdiction, the striking union
members communicated in writing their desire to return to work, which offer Liwanag
Corporation refused to accept, what remedy, if any, does the union have?

Answer

The union has three (3) remedies:

a. It can file a petition for assumption of jurisdiction with the Secretary, with prayer
for RTW order.

b. It can also file a complaint for illegal lockout with the Labor Arbiter , on the ground
that the non-admission constitutes a lockout which did not comply with the procedural
requirements of a lock out vote, cooling off period, and submission of lock out vote.

c. It can file a petition for injunction with the NLRC under its authority to " require the
performance of a particular act [ in this case, readmission to employment] in any labor
dispute which .. if not performed forthwith may cause grave or irreparable damage to
any party or render ineffectual any decision in its favor (Art. 225 [ e] , Labor Code).

Notes:

The company would have to weigh its options.

While the LA office has jurisdiction over lock out cases, it does not have the power to issue
injunction.

The NLRC can issue injunction, but not immediately since it requires "hearing the testimony of
witnesses with opportunity for cross-examination".

The SOLE can immediately issue a RTW order, but then the company must belong to an industry
indispensable to the national interest.

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Q11. Due to business recession, Ballistic Company retrenched a part of its workforce.
Opposing the retrenchment, some of the affected employees staged a strike.
Eventually, the retrenchment was found to be justified, and the strike was declared
illegal since the ground was found to be without merit. Hence, the leaders of the strike,
including those ]selected for retrenchment, were declared to have lost their employment
status.

Are the striking retrenched officers still entitled to separation pay under Art. 298 of
the Labor Code despite the illegality of their strike? Explain your answer.

Answer

Yes. Since the employees have been retrenched , they are entitled to separation
benefits. Having been terminated already, they could no longer be terminated again.
The ruling on the legality of the strike would have no bearing on their right to receive
separation benefits.

Note

The union may be assessed damages for the illegality of the strike but the retrenched employees'
right to separation benefits cannot be forfeited.

Q12. Union A filed a Notice of Strike (NOS) with the National Conciliation and Mediation
Board (NCMB) of the Department of Labor and Employment. Upon a motion to dismiss
by the Company on the ground that the acts complained of in the notice of strike are
non-strikeable, The NCMB dismissed the NOS. Nonetheless, it continued to mediate
the issues contained therein to prevent the escalation of the dispute between the
parties. While the NCMB was conducting mediation proceedings, the Union proceeded
to conduct a strike vote as provided for under the Labor Code. After observance of the
procedural processes required under the Labor Code, the Union declared a strike.

a) Is the strike legal?

Answer

No, the strike is not legal. The NCMB had dismissed the NOS. The effect of the
dropping of the NOS from the register of strikes is that as if no NOS was filed. A strike
declared without an NOS illegal. Moreover, the parties are prohibited during mediation
proceedings from doing any act that may disrupt or impede the early settlement of the
dispute (Art. 261[d], Labor Code).

Notes

Note 1: When the NCMB declares a notice of strike as "appropriate for preventive mediation",
the effect of that declaration is to drop the case from the docket of notice of strikes, as provided in
Rule 41 of the NCMB Rules, as if there was no notice of strike. During the pendency of preventive
mediation proceedings no strike could be legally declared (PAL vs Secretary of Labor, GR No.
88210, 23 January 1991). But since the NCMB has no coercive powers of injunction, the employer
may seek injunction with the NLRC or the Secretary of DOLE to allow free ingress to and egress
from the company premises and to enjoin the unlawful strike itself (see San Miguel Corp vs NLRC, GR
No. 119293, 10 June 2003).

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Note 2: Labor Issues submitted for mediation/arbitration cannot be valid grounds for a strike
(Art. 279, 2nd par, Labor Code). The rationale of the prohibition under Article 279 is that once
jurisdiction over the labor dispute has been properly acquired by competent authority, that
jurisdiction should not be interfered with by the application of the coercive processes of a strike.
( Sukhothai Cuisine & Restaurant vs Court of Appeals, GR No. 150437, 17 July 2006).

b) Prescinding from Q20 facts, can the employer unilaterally declare those who
participated in the strike as having lost their employment status?

Answer

No. The employer must still determine the individual liability of the officers who voted for
the strike or participated in the strike and the individual liability of the union members
who committed illegal acts during the strike. Hence, it must either: a) file a complaint for
illegal strike with the Labor Arbiter; or b) initiate disciplinary proceedings among the
strikers.

Notes

The strikers are entitled to due process. A unilateral employer declaration violates due process.
(Suico vs NLRC, GR No. 146762, 30 January 2007). PFFALLARJRDEC2023

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