National Federation of Sugar Workers v Ovejera

G.R. No. L-59743

May 31, 1982

The prescribed cooling-off period in Art. 264(c) and the 7-day strike ban after the strike-vote report
prescribed in Art. 264(f) were meant to be, and should be deemed, mandatory.

Facts: NFSW has been the bargaining agent of Central Azucarera de la Carlota (CAC) rank and file employees and
has concluded with CAC a collective bargaining agreement effective February 16, 1981 February 15, 1984.
Under Art. VII, Sec. 5 of the said CBA
Bonuses The parties also agree to maintain the present practice on the grant of Christmas bonus, milling
bonus, and amelioration bonus to the extent as the latter is required by law. The Christmas and milling
bonuses amount to 1- months' salary.

November 28, 1981, NFSW struck allegedly to compel the payment of the 13th month pay under PD 851, in
addition to the Christmas, milling and amelioration bonuses being enjoyed by CAC workers. To settle the strike, a
compromise agreement was concluded between CAC and NFSW.

January 22, 1982, NFSW filed with the Ministry of Labor and Employment (MOLE) Regional Office in Bacolod
City a notice to strike based on non-payment of the 13th month pay. Six days after, NFSW struck. One day after the
commencement of the strike, or on January 29, 1982, a report of the strike-vote was filed by NFSW with MOLE.

February 8, 1982, CAC filed a petition (R.A.B. Case No. 0110-82) with the Regional Arbitration Branch VI-A,
MOLE, at Bacolod City to declare the strike illegal, principally for being violative of Batas Pambansa Blg. 130,
that is, the strike was declared before the expiration of the 15-day cooling-off period for unfair labor practice (ULP)
strikes, and the strike was staged before the lapse of seven days from the submission to MOLE of the result of the
strike-vote. After the submission of position papers and hearing, Labor Arbiter Ovejera declared the NFSW strike
illegal.

On February 26, 1982, the NFSW by passing the NLRC filed the instant Petition for prohibition alleging that
Labor Arbiter Ovejera, CAC and the PC Provincial Commander of Negros Occidental were threatening to
immediately enforce the February 20, 1982 decision which would violate fundamental rights of the petitioner.

Issue: 1. Whether the strike declared by NFSW is illegal

2. Whether under Presidential Decree 851 (13th Month Pay Law), CAC is obliged to give its
workers a 13th month salary in addition to Christmas, milling and amelioration bonuses, the
aggregate of which admittedly exceeds by far the disputed 13th month pay.

Held: 1. The provisions hardly leave any room for doubt that the cooling-off period in Art. 264(c) and the 7-
day strike ban after the strike-vote report prescribed in Art. 264(f) were meant to be, and should be deemed,
mandatory.

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 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 the 7-day strike ban
after the report on the strike-vote is manifest in the provision that "in every case," the union shall furnish the MOLE
with the results of the voting "at least seven (7) days before the intended strike, subject to the (prescribed) cooling-
off period." It must be stressed that the requirements of 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.

Purpose of strike notice and strike vote

In requiring a strike notice and a cooling-off period, the avowed intent of the law is to provide an opportunity for
mediation and conciliation. It thus directs the MOLE "to exert all efforts at mediation and conciliation to effect a
voluntary settlement" during the cooling-off period.

Waiting period after strike notice and strike-vote report, valid regulation of right to strike
The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than
the right to organize and select representatives for lawful purposes of collective bargaining. The cooling-off period
and the 7-day strike ban after the filing of a strike- vote report, as prescribed in Art. 264 of the Labor Code, are
reasonable restrictions and their imposition is essential to attain the legitimate policy objectives embodied in the law.
We hold that they constitute a valid exercise of the police power of the state.

2. No. The evident intention of the law, as revealed by the law itself, was to grant an additional income in the
form of a 13th month pay to employees not already receiving the same. Otherwise put, the intention was to grant
some relief not to all workers but only to the unfortunate ones not actually paid a 13th month salary or what
amounts to it, by whatever name called; but it was not envisioned that a double burden would be imposed on the
employer already paying his employees a 13th month pay or its equivalent whether out of pure generosity or on
the basis of a binding agreement and, in the latter ease, regardless of the conditional character of the grant (such as
making the payment dependent on profit), so long as there is actual payment. Otherwise, what was conceived to be a
13th month salary would in effect become a 14th or possibly 15th month pay.

This view is justified by the law itself which makes no distinction in the grant of exemption: "Employers already
paying their employees a 13th month pay or its equivalent are not covered by this Decree."

To require employers (already giving their employees a 13th month salary or its equivalent) to give a second
13th month pay would be unfair and productive of undesirable results. To the employer who had acceded and is
already bound to give bonuses to his employees, the additional burden of a 13th month pay would amount to a
penalty for his munificence or liberality. The probable reaction of one so circumstance would be to withdraw the
bonuses or resist further voluntary grants for fear that if and when a law is passed giving the same benefits, his prior
concessions might not be given due credit; and this negative attitude would have an adverse impact on the
employees.

Note
Art. 264,Strikes, picketing and lockouts. ...
(c) In cases of bargaining deadlocks, the certified or duly recognized bargaining representative may file a
notice of strike with the Ministry (of Labor and Employment) at least thirty (30) days before the intended date
thereof. In cases of unfair labor practices, the period of notice shall be shortened tofifteen (15) days; ...
(d) During the cooling-off period, it shall be the duty of the voluntary sttlement. Should the dispute remain
unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may
strike or the employer may declare a lockout.
(f) A decision to declae a strike must be approved by at least two-thirds (2/3) of the total union membership in
the bargaining unit concerened by secret ballots in meetings or referenda. A decision to declae a lockout must be
approved by at least two-thirds (2/3) of the board of direcotrs of the employer corporation or association or of the
partners in a partnership obtained by secret ballot in a meeting called for the purpose. the decision shall be valid for
the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was
taken . The Ministry, may at its own intitiative or upon the request of any affected party, supervise the conduct of the
secret balloting. In every case, the union of the employer shall furnish the Ministry the results of the voting at least
seven (7) days before the intended strike or lockout, subject to the cooling-off period herein provided. (Emphasis
supplied).

ART. 265. Prohibited activities. It shall be unlawful for any labor organization or employer to declare a strike or
lockout without first having bargained collectively in accordance with Title VII of this Book or without first having
filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been
obtained and reported to the Ministry.
It shall likewise be unlawful to declare a strike or lockout after assumption of jurisdiction by the President or the
Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the
pendency of cases involving the same grounds for the strike or lockout.

Union of Filipro Employees v Nestle Philippines, Inc

G.R. No. 88710-13
December 19, 1990
Facts: UFE filed a notice of strike on November 14, 1985, with the Bureau of Labor Relations against Filipro (now
Nestle Philippines, Inc., ["Nestle"]). On December 4, 1988, UFE filed a complaint for Unfair Labor Practice (ULP)
against Nestle and its officials for violation of the Labor Code (Art. 94) on Holiday Pay, non-implementation of the
CBA provisions (Labor Management Corporation scheme), Financial Assistance and other unfair labor practice.
Acting on Nestle's petition seeking assumption of jurisdiction over the labor dispute or its certification to the NLRC
for compulsory arbitration, then Minister of Labor and Employment Blas F. Ople assumed jurisdiction over the
dispute.

On December 20, 1985, UFE filed a petition for Certiorari with prayer for issuance of temporary restraining order,
with this Court (G.R. No. 73129) assailing the assumption of jurisdiction by the Minister.

January 23, 1986, Nestle filed a petition to declare the strike illegal (NCR-1-295-86) premised on violation of the
CBA provisions on "no strike/no lockout" clause and the grievance machinery provisions on settlement of disputes.

On January 30, 1986, then Labor Minister Ople issued another Order, with this disposition:
"WHEREFORE, in line with the Order of December 11, 1985, this Office hereby orders all the striking workers to
report for work and the company to accept them under the same terms and conditions prevailing before the work
stoppage within forty eight (48) hours from notice of this Order.

Despite receipt of the second order dated January 30, 1986, and knowledge of a notice caused to be published by
Nestle in the Bulletin on February 1, 1986, advising all workers to report to work not later than February 3, 1986,
the officers and members of UFE continued with the strike.

On February 4, 1986, the Minister B. Ople denied their motion for reconsideration of the return-to-work order.

UFE defied the Minister and continued with their strike. Nestle filed criminal charges against those involved.

On March 13, 1986, the new Minister of Labor and Employment, Augusto B. Sanchez, issued a Resolution, the
relevant portions of which stated thus:
"This Office hereby enjoins all striking workers to return-to-work immediately and management to accept them
under the same terms and conditions prevailing previous to the work stoppage except as qualified in this resolution.
The management of Nestle Philippines is further directed to grant a special assistance as suggested by this Ministry
in an order dated 30 January 1986 to all striking employees covered by the bargaining units at Makati, Alabang,
Cabuyao and Cagayan de Oro City in an amount equivalent to their weighted average monthly basic salary, plus the
cash conversion value of the vacation leave credits for the year 1986, payable not later than five (5) days from the
date of the actual return to work by the striking workers." On March 17, 1986, the strikers returned to work. March
31, 1986, We granted UFE's Motion to Withdraw its Petition for Certiorari.

Filipro (Nestle) and the Cagayan de Oro Filipro Workers Union-WATU, renewed a 3-year contract, made effective
from December 1, 1984 up to June 30, 1987. Petitioners signed the CBA as the duly-elected officers of the Union.

On January 19, 1985, the union officers, together with other members of the union sent a letter to Workers Alliance
Trade Unions (WATU), advising them "that henceforth we shall administer the CBA by ourselves and with the help
of the Union of Filipro Employees (UFE) to where we have allied ourselves."

UFE filed a petition (Case No. CRD-M-88-326-85) for administration of the existing CBAs at Cebu, Davao and
Cagayan de Oro bargaining units against TUPAS and WATU.

From January 22, 1986 to March 14, 1986, the rank and file employees of the company staged a strike at the
instigation of the UFE officers, who had represented themselves as officers.

Nestle filed a petition to declare the strike illegal. The strikers countered that their strike was legal because the same
was staged pursuant to the notice of strike filed by UFE on November 14, 1985 (BLR-NS-11-344-85), of which they
claim to be members, having disaffiliated themselves from CDO-FWU-WATU. On November 24, 1987, Executive
Labor Arbiter Zosimo Vasallo issued his decision declaring the strike illegal.
At the outset, UFE questions the power of the Secretary of Labor under Art. 263(g) of the Labor Code to assume
jurisdiction over a labor dispute tainted with national interests, or to certify the same for compulsory arbitration.
UFE contends that Arts. 263 and 264 are based on the 1973 Constitution, specifically Sec. 9 of Art. II thereof, the
pertinent portion of which reads:
"Sec. 9. . . . The State may provide for compulsory arbitration."

UFE argues that since the aforecited provision of Sec. 9 is no longer found in the 1987 Constitution, Arts. 263(g)
and 264 of the Labor Code are now "unconstitutional and must be ignored."

Issue: 1. WON sections 263 and 264 of the Labor Code are now unconstitutional
2. WON the strike was legal

Held: 1. Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not
be excused by disuse or custom or practice to the contrary. In the case at bar, no law has ever been passed by
Congress expressly repealing Articles 263 and 264 of the Labor Code. Neither may the 1987 Constitution be
considered to have impliedly repealed the said Articles considering that there is no showing that said articles are
inconsistent with the said Constitution. Moreover, no court has ever declared that the said articles are inconsistent
with the 1987 Constitution. On the contrary, the continued validity and operation of Articles 263 and 264 of the
Labor Code has been recognized by no less than the Congress of the Philippines when the latter enacted into law
R.A. 6715, otherwise known as Herrera Law, Section 27 of which amended paragraphs (g) and (i) of Article 263 of
the Labor Code.

2. On the issue of the legality of the strike committed, UFE seeks to absolve itself by pointing out
qualifying factors such as motives, good faith, absence of findings on specific participation and/or liability, and
limiting the no-strike provision to economic strikes.

UFE completely misses the underlying principle embodied in Art. 264(g) on the settlement of labor disputes and this
is, that assumption and certification orders are executory in character and are to be strictly complied with by the
parties even during the pendency of any petition questioning their validity. This extraordinary authority given to the
Secretary of Labor is aimed at arriving at a peaceful and speedy solution to labor disputes, without jeopardizing
national interests.

Regardless therefore of their motives, or the validity of their claims, the striking workers must cease and/or desist
from any and all acts that tend to, or undermine this authority of the Secretary of Labor, once an assumption and/or
certification order is issued. They cannot, for instance, ignore return-to-work orders, citing unfair labor practices on
the part of the company, to justify their actions.

One other point that must be underscored is that the return-to-work order is issued pending the determination of the
legality or illegality of the strike. It is not correct to say that it may be enforced only if the strike is legal and
may be disregarded if the strike is illegal, for the purpose precisely is to maintain the status quo while the
determination is being made.

We also wish to point out that an assumption and/or certification order of the Secretary of Labor
automatically results in a return-to-work of all striking workers, whether or not a corresponding order has
been issued by the Secretary of Labor. Thus, the striking workers erred when they continued with their strike
alleging absence of a return-to-work order. Article 264(g) is clear. Once an assumption/certification order is issued,
strikes are enjoined, or if one has already taken place, all strikers shall immediately return to work.

A strike that is undertaken despite the issuance by the Secretary of Labor of an assumption or certification order
becomes a prohibited activity and thus illegal, pursuant to the second paragraph of Art. 264 of the Labor Code as
amended. The Union officers and members, as a result, are deemed to have lost their employment status for having
knowingly participated in an illegal act.

The prescribed mandatory cooling-off period and then 7-day strike and after submission of the report of strike vote
at Nestle's Makati Offices and Muntinlupa and Cabuyao Plants were not complied with (NLRC-NCR-124007-85 &
NCR-1-295-86), while no notice of strike was filed by respondents when they staged the strike at Nestle's Cagayan
de Oro Plant (RABX-2-0047-86) contrary to the pertinent provision of Articles 263 and 264 of the Labor Code,
emphasizing that "the mandatory character of these cooling-off periods has already been categorically ruled upon by
the Supreme Court

On the alleged lack of jurisdiction of Labor Arbiter Lubaton, NLRC has clarified that the question on the legality
of strike was properly resolved by the Labor Arbiter, not only because the question is perfectly within the original
and exclusive jurisdiction of the Labor Arbiter to adjudicate, but also because the issue was not subsumed by the
Order of Labor Minister Sanchez, dated December 23, 1986, certifying the Notice of Strike dated December 4, 1986
for compulsory arbitration, further clarifying that the issue of whether or not the strike staged on September 11, 1987
by UFE and its officials and members was illegal is a prejudicial question to the issue of whether or not the
complainants were illegally dismissed.

Pepsi Cola v NLRC

G.R. No. L-58341
June 29, 1982

Members of a union cannot be held responsible for an illegal strike on the sole basis of such membership or
even on account of their affirmative vote authorizing the same. They become liable only if they actually
participated therein.

Facts: On December 11, 1979, a certification election was held at the Pepsi-Cola Bottling Company's (PEPSI) plant
in Naga City .Out of 131 votes which were cast, the UNION got 128 so it regarded itself as the sole and exclusive
bargaining unit. The losing labor group contested the election at various levels but it was unsuccessful. Its petition
for review was dismissed by this Court in a resolution dated June 11, 1980.

Meanwhile, on April 1, 1980, the UNION filed a notice of strike with MOLE's Regional Office in Legaspi City on
the ground that PEPSI refused to bargain. PEPSI countered that it was willing to bargain but there was yet no final
decision on the appeal of the other labor union. On April 25, 1980, Med-Arbiter Antonio B. Caayao issued a
resolution with following dispositive portion:

WHEREFORE, conformably with the foregoing, the Notice of Strike under consideration, being premature, is
illegal and should, therefore, be dismissed. Consequently, any strike staged by virtue of this Notice of Strike shall,
likewise, be deemed illegal.

In disregard of the resolution, the UNION staged a strike on May 7, 1980. There are conflicting claims on the
duration of the strike. The UNION claims that it was only a one-day strike; PEPSI says the strike lasted for three
days. At any rate, a return to work order was issued on May 9, 1980.
On May 15, 1980, PEPSI filed a complaint for unfair labor practice and illegal strike. (see full text for decision)

On December 8, 1980, the UNION filed a "MOTION FOR RECONSIDERATION OR APPEAL TO THE NLRC"
alleging that there was grave abuse of discretion, lack of jurisdiction, and contrary to the law and the facts. PEPSI
moved to dismiss on the ground that the UNION failed to furnish it a copy of the motion for reconsideration or
appeal a fatal omission amounting to non-perfection of the appeal.

Issue: WON all the officers and members of the union whose names and positions appear on Annex "A" of the
complaint except Romulo Cal, Nilo Bariso and Mauro Nieto be considered to have lost their employment status
effective May 7, 1980.

Held: We are bound by the finding of the NLRC that, "A careful scrutiny of the appeal shows that the respondents-
appellants failed to serve/furnish a copy thereof on the adverse party which fact has further been ascertained thru the
positive asseveration of the complainant-appellee in its motion to dismiss the appeal." This being the case, NLRC
cannot be faulted in dismissing the UNION'S appeal for its action was in accordance with both the law and
regulations.

However, We go deeper than sustaining the action of the NLRC in dismissing the appeal because We have been
asked to review not only the actuation of that agency but also that of the Labor Arbitrator who declared in his
decision that, "all the officers and members of the union whose names and positions appear on Annex "A" of the
complaint except Romulo Cal, Nilo Bariso and Mauro Nieto be considered to have lost their employment status
effective May 7, 1980. "
It is now settled "that a strike does not automatically carry the stigma of illegality even if no unfair labor
practice were committed by the employer. It suffices if such a belief in good faith is entertained by labor as the
inducing factor for staging a strike."

And it has also been held that the members of a union cannot be held responsible for an illegal strike on the sole
basis of such membership or even on account of their affirmative vote authorizing the same. They become
liable only if they actually participated therein.

In the case at bar, although the strike was indeed illegal, We cannot discount the presence of good faith on the part of
the rank and file members of the UNION considering that in the certification election the UNION obtained 128 out
of the 131 votes cast so that they could justifiably consider it as their sole bargaining representative. Moreover, there
is no proof that the members of the UNION all participated in the illegal strike. The ones who deserve what Justice
Barredo calls "capital punishment" in the Esso Philippines case, supra, are the officers of the UNION who staged
the strike in defiance of the ruling of Med-Arbiter Caayao.