STRIKE AND LOCK OUT SUMMARY OF PRINCIPLES OF GOVERNING

STRIKES
Strike refers to any temporary stoppage of work by the
concerted action of employees as a result of a labor or 1. A strike or lockout is illegal if any of the legal
industrial dispute. requisites is not complied with. Procedural requirements
are mandatory.
Strike Vote Balloting refers to the secret balloting
undertaken by the members of the union in the 2. A strike or lockout is illegal if it is based on non-
bargaining unit concerned to determine whether or not to strikeable issues (e.g., inter-union or intra-union disputes
declare a strike in meetings or referenda called for that or wage distortion).
purpose.
3. A strike or lockout is illegal if the issues involved are
2 STRIKEABLE GROUNDS: already subject of compulsory or voluntary arbitration or
conciliation or the steps in grievance machinery are not
1. Collective Bargaining deadlock
exhausted.
2. ULP
4. A strike or lockout is illegal if unlawful means were
STRIKE:
employed or prohibited acts or practices were committed
Where to file: e.g., Use of force, violence, threats, coercion, etc.;
Barricades, blockades and obstructions of ingress to or
 Regional branch of the NCMB having egress from the company premises.
jurisdiction over the workplace
5. A strike or lockout is illegal if the notice of strike or
Who may file: notice of lockout is already converted into a preventive
1. Any certified bargaining agent; mediation case.
2. If none, any LLO on the ground of ULP only. 6. A strike or lockout is illegal if staged in violation of
ELEMENTS OF STRIKE: the “No-Strike, No-Lockout” clause in the collective
bargaining agreement.
1. Temporary stoppage of work;
7. A strike or lockout is illegal if staged in violation of a
2. Concerted activity; and temporary restraining order or an injunction or
assumption or certification order.
3. Labor dispute.
8. A strike is illegal if staged by a minority union.
REQUISITES OF VALID STRIKE
9. A strike or lockout is illegal if conducted for unlawful
1. Based on a valid and factual ground;
purpose/s e.g. Strike to compel dismissal of employee or
2. A notice of strike filed with the NCMB; to compel the employer to recognize the union or the so-
called “Union-Recognition Strike.”
3. Notice of strike vote to the NCMB, at least 24 hours
before such vote; 10. The local union and not the federation is liable to pay
damages in case of illegal strike.
4. Strike vote wherein at least a majority of the members
of the union approve the holding of strike through secret WHEN STRIKE IS ILLEGAL:
balloting in a meeting called for the purpose;
1. Doesn’t comply with procedural requirements;
5. Strike vote report submitted at least 7 days
2. For an unlawful purpose:
beforeintended date of strike;
a. To compel dismissal of EE;
6. Cooling off period.
b. Force recognition of union;
 Union busting = NONE;
 ULP = 15 days; c. For trivial and puerile purpose;
 CBD = 30 days; From date of notice of strike is
filed. d. To circumvent contracts and judicial orders;
 7 day waiting period or strike ban after 3. Based on non-strikeable grounds
submission of strike vote report
a. Inter and Intra union disputes; Sec 16, Rule XXII, Book V, as created by DOLE
Department Order
b. Simple violation of CBA;
No. 040-H-13
c. Violation of labor standards;
1. hospital sector;
d. Legislated wage orders; wage distortion
2. electric power industry;
4. Didn’t bargain collectively first;
3. water supply services, to exclude small water supply
5. Violated the no strike no lockout clause; services such as bottling and refilling stations;

6. Failure to submit issues to grievance procedure and 4. air traffic control; and
exhaust the steps therein;
5. such other industries as may be recommended by the
7. While C-M is ongoing at NCMB; National Tripartite Industrial Peace Council (TIPC).

8. Based on issues already brought to arbitration;

9. Pending case involving same ground in the notice of MANAGEMENT PREROGATIVE
strike
The right or prerogative to discipline covers the
10. In defiance of an assumption or certification or following rights to:
return-to-work order;
a) Discipline;
11. In violation of a TRO or an injunction order;
b) Dismiss;
12. After notice of strike converted to preventive
c) Determine who to punish;
mediation case;
d) Promulgate rules and regulations;
13. Against prohibition by law;
e) Impose penalty (proportionality rule)
14. By a minority union;
f) Choose which penalty to impose; AND
15. By an illegitimate union;
g) Impose heavier penalties than what the company rules
16. By dismissed EEs;
prescribe
17. In violation of company code of conduct;
The proportionality rule means that the penalty to be
18. As protest rallies in front of government offices; imposed must be commensurate with the offense
committed
19. As welga ng bayan TRANSFER OF EMPLOYEES:
STRIKE AREA: The lateral movement from one position to another of
means the establishment, warehouses, depots, plants or equivalent rank,level or salary. Could be a movement:
offices, including the sites or premises used as runaway a. From one position to another; or
shops, of the employer struck against, as well as the b. From one office to another within the same
immediate vicinity actually used by picketing strikers in business establishment.
moving to and fro before all points of entrance to and c. This is an inherent right to control or manage by
exit from said establishment. the ER. Consent of EE NOT required
STRIKE BREAKER: This is exercised by the ER in the best interest of the
means any person who obstructs, impedes, or interferes company to seewhere a particular EE can be best
with by force, violence, coercion, threats, or intimidation maximized. For a transfer to be valid,the following
any peaceful picketing affecting wages, hours or REQUISITES must be observed:
conditions of work or in the exercise of the right of self- a. Must be reasonable or have a sound purpose;
organization or collective bargaining. b. Must not inconvenient the welfare of the EE;
c. Not prejudicial to the EE;
d. Not involve a demotion of rank or status;
 e. Not be motivated by discrimination; CHANGE OF WORKING HOURS:
f. Not made in bad faith;
CBPI v. Iloilo Coca-Cola Plant Employees Union
 Failure to observe these requisites, the transfer is 2018
deemed CONSTRUCTIVE DISMISSAL. Same
 Despite the mistaken notion of CCBPI that
reliefs as that of illegal demotion.
Saturday work is synonymous to overtime work,
 An EE who refuses to be transferred when such the Court still disagrees with the CA ruling that
is valid, is guilty of insubordination or willful the previous practice of instituting Saturday
disobedience of a lawful order of an ER under work by CCBPI had ripened into a company
Art 297[282] of the LC practice covered by Article 100 of the Labor
Code.
Refusal to be transferred is VALID in the following
 To note, it is not Saturday work per se which
cases:
constitutes a benefit the company's employees.
a. Overseas assignment; Rather, the benefit involved in this case the
b. Consequent to promotion; premium which the company pays its employees
c. This is a scalar transfer. The EE may refuse as above and beyond the minimum requirements
this entails additional responsibilities. set by law.
d. To avoid conflict of interest
OCCUPATIONAL QUALIFICATION:
e. Occasioned by the abolition of the position
To be considered a bona fide occupational qualification,
Refusal is INVALID:
the policy must
a. Due to parental obligations;
1. Serve a legitimate business purpose;
b. Additional expenses;
2. Be specific to the occupation at issue; and
c. Inconvenience;
3. Reflect an inherent quality that would
d. Hardship and anguish.
reasonably guaranteed work efficiency
PRODUCTIVITY STANDARDS:
Employment may not be limited to persons of a
1. Realigning the functions of a certain position. particular sex, religion,or national origin unless the
2. Valid so long as they are not contrary to law, employer can show that such qualifications are necessary
public policy, morals. They must be lawful and in the performance of the job involved Exceptions to
reasonable. BFOQ:

BONUS: 1. Employment qualification is reasonably related

to the essential operation of the job involved;
is a gratuity or act of liberality of the giver, and cannot and
be considered part of an employee’s wages if it is paid 2. There is a factual basis for believing that all or
only when profits are realized or a certain amount of substantially all persons meeting the
productivity is achieved. If the desired goal of qualification would be unable to properly
production or actual work is not accomplished, the bonus perform the duties of the job.
does not accrue.
POST-EMPLOYMENT RESTRICTIONS:
Mega Magazine Publications v. Defensor 2014
 An EE is prohibited after separation from
The grant of a bonus or special incentive, being a joining a competitor.
management prerogative, is not a demandable and  VALID, subject to limitations as to duration and
enforceable obligation, except when the bonus or special place.
incentive  Restrictive covenant clauses In determining
1. is made part of the wage, salary or compensation whether the contract is reasonable or not, the
of the employee, or following
2. is promised by the employer and expressly  factors should be considered:
agreed upon By the parties. a. whether the covenant protects a legitimate
business interest of the employer;
 b. whether the covenant creates an undue burden
on the employee;
c. whether the covenant is injurious to the public
welfare;
d. whether the time and territorial limitations
contained in the covenant are reasonable; and
e. whether the restraint is reasonable from the
standpoint of public policy.
MARRIAGE BETWEEN EMPLOYEES OF
COMPETITOR-EMPLOYERS:
A policy prohibiting spouses from being employed in the
same company. There must be compelling business
necessity for which no alternative exists other than the
discriminatory practice for it to be VALID.
Theories on Employment Discrimination
1. Disparate Treatment - Plaintiff must prove that an
employment policy is discriminating on its face;
2. Disparate Impact - Plaintiff must prove that a
facially neutral policy has a disproportionate effect on a
part of the class.
Duncan Assoc. of Detailman-PTGWO v. Glaxo
Wellcome Phils.
 Glaxo has a right to guard its trade secrets,
manufacturing formulas, marketing strategies  Must be from HR deparment
and other confidential programs an information  Signature of HR manager
from competitors, especially so that it and Astra  Contact details
are rival companies in the highly competitive  Company policies
pharmaceutical industry.
 The prohibition against personal or marital
relationships with employees of competitor
companies upon Glaxo’s employees is
reasonable under the circumstances because
relationships of that nature might compromise
the interests of the company. In laying down the
assailed company policy, Glaxo only aims to
protect its interests against the possibility that
competitor company will gain access to its
secrets and procedures.