STRIKES

1. A strike is a temporary stoppage of work by the concerted action of the employees, as a result of a labor dispute. A “picket” may be considered a strike if it causes a work stoppage (such as when the picketers block the delivery of supplies or prevents other employees from reporting for work). Even if the employer had shut down the operation of one department prior to the picket, if the other departments that were still operating were adversely affected by the picket in such a way that there was work stoppage, the “picket” amounted to a strike. An “overtime boycott” or the concerted refusal of the union members to render overtime work, after years of regularly having the said arrangement, was also considered a strike.

2. To be valid, a strike must have as ground either ULP or bargaining deadlock. As an exception, even if no ULP is committed by the employer, if the employees believe in good faith that ULP acts exist so as to constitute a valid ground to strike, then the strike held pursuant to that belief may be legal as a “good faith strike.” A mere claim of good faith, however, will not be enough. In addition to such good faith, circumstances must have warranted such belief.

3. In addition to the existence of a valid ground, the strike must likewise comply with the procedural requirements (notice of strike, notice of the conduct of strike vote, actual strike vote, notice of results of vote, cooling-off period, 7-day strike ban). The procedural requirements are mandatory and the failure of a union to comply with the requirements will render the strike illegal. This strict policy applies even to the 24-hour notice to the NCMB of the conduct of the strike vote.

4. When the NCMB issues a notice converting the dispute into a preventive mediation case, the said conversion has the effect of dismissing the notice of strike that has been filed. If the union still proceeds with the strike, after such conversion, then the strike is an illegal strike because the union, at that time, has already lost the notice of strike.

5. As a general rule, the Labor Code prohibits the issuance of injunctions or restraining orders in any case growing out of labor disputes. Exceptions to these are the following: (a) the NLRC’s power to enjoin or restrain actual and threatened commission of any or all prohibited or unlawful acts, or to require the performance of a particular act which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party; and (b) the Secretary of Labor’s (and the President’s) powers to issue assumption or certification orders. In

some cases, the Court has said that the coercive measure of injunction may also be used to restrain an actual or threatened unlawful strike, not just the illegal acts attendant to the strike.

6. When an assumption order (or certification order) is issued, it should mandate the return to work of the strikers, and the actual reinstatement of the returning strikers. Payroll reinstatement is not contemplated by the law. Reinstatement must be to the same position of the strikers before the strike and this order acts as a limitation on the managerial prerogative to transfer and reassign employees. The order to reinstate the returning strikers must cover all strikers and must not be limited to a group of strikers. In one case, the Court even allowed the assumption order to cover striking employees whose membership in the bargaining unit was in question.

7. The mere posting of an assumption order in conspicuous places in the picket area does not satisfy the rigid requirement for proper service. The union affected could not be adjudged to have defied such order since it was not properly apprised thereof.

8. Mere finding of the illegality of a strike should not be automatically followed by wholesale dismissal of the strikers from employment. A 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 the strike may be declared to have lost their employment status. An ordinary striking employee cannot be terminated for mere participation in an illegal strike.

9. The Secretary has the prerogative to temper the consequence of the defiance of an assumption order. The Secretary may merely suspend rather than dismiss the employees involved. Labor laws frown upon dismissal. Where a penalty less punitive would suffice, an employee should not be sanctioned with a consequence so severe.

10. An “innocent bystander” who seeks an injunction from the regular court against a labor strike must show that it is entirely different from, without any connection whatsoever to, either party to the dispute, and, therefore, its interests are totally foreign to the context thereof.