PART 3 – CONSEQUENCES OF CONCERTED ACTIVITIES

Striker’s Retention of Employment

- Effects of employment are merely suspended during that time the workers do not work and do not get paid

- When the strike is over – employees go back to work and the effects of employer-employee relationship is resumed

Art. 578 of the Labor Code:

“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.”

As to Illegal Strike – a finding of illegality of strike should not be automatically followed by wholesale dismissal of striking workers from their employment

Striker’s Loss of Employment

- Civil and criminal laws are not suspended during a strike- Anyone who commits an illegal act, whether a union officer or a

member, is civilly or criminally liable no matter whether the strike is legal or not

- The commission of illegal acts, including coercion, grave threats, intimidation is reason enough to terminate the employment of such striker-employee

- An ordinary striking worker cannot be terminated for mere participation in an illegal strike unless there is proof that he committed illegal acts during a strike

- A union officer may be terminated from work when he knowingly participates in an illegal strike or when he commits an illegal act during the strike

Illegal Acts

1. Violation of Article 278 (e) of the Labor Code

(e) No person engaged in picketing shall commit any act of violence, coercion, or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes or obstruct public thoroughfares.

2. Commission of crimes and other unlawful acts in carrying out the strike; and

3. Violation of any order, prohibition or injunction issued by the DOLE Secretary or NLRC in connection with the assumption of jurisdiction/certification order under Article 277 (q) of the Labor Code.

Consequence of a Strike

DISMISSABLELEGAL STRIKE ILLEGAL STRIKE

1. Participation in StrikeUnion Officer No YesUnion Member No No2. Commission of Illegal Acts in a StrikeUnion Officer Yes YesUnion Member Yes Yes

Union Officers or Leaders

- The union officers had the duty to guide their members to respect the law. Instead, they urged them to violate the law and defy the duly authorized authorities. Their responsibility is greater than that of the members. Their dismissal from the service is a just penalty for their unlawful acts.

Shop Stewards are Union Officers

- Appointed by the Union in a shop, department or plant serves as representative of the Union, charged with negotiating and adjustment of grievance of employees with the supervision of the employer

- Representative of the Union members in a building or workplace- Union official who represents member’s in a particular department

Union Member

- Participated in committing illegal acts through as strike (whether legal or illegal) may lose his employment status

Declaration of Illegality of Strike

- Not a prerequisite to dismissal of illegal strikers

Exception: If there is a pending case at NLRC

- By filing a formal complaint for illegal strike, it behooved the petitioner (employer) to desist from undertaking its own investigation on the same matter, concluding upon the illegality of the union activity and dismissing outright the union officers involved

“GOOD-FAITH STRIKE”

- A strike may be justified by belief in good faith that the employer was committing ULP at the time the strikers went on strike

- Good faith saves the strike from being declared illegal and the strikers from being declared to have lost their employment status

Ferrer vs. CIR

Both parties have performed acts which understandably included each other to believe that the other party was guilty of ULP.

Strikers in question has been called to offset what petitioners were warranted in believing in good faith to be ULP or the part of the management, that petitioners were not bound, therefore, to wait for the expiration of 30 days from notice of strike before staging the same, and that the strikers had not thereby lost their status as employees of respondents

What was involved was a defective strike, that is, one conducted in violation of the 30-day ‘cooling-off” period, but one carried out in good faith “to offset what petitioners were warranted in believing in good faith to be ULP committed by Management”.

Strike which is illegal and not marred with Good Faith- Strikers forfeit their employment

Reliance Security and Insurance vs. NLRC

A strike that was illegal in more ways than one, the reinstated union officers were clearly in bad faith, and to reinstate them without, indeed, loss of seniority rights, is to reward them for an act public policy does not sanction.

Forfeiture of Reinstatement

- The Court had occasion to rule that striker who failed to report for work when one had the opportunity to do so waived thereby his rights to reinstatement

If, during a strike, a striking employee has found another job, is he entitled to reinstatement?

It is for the Board in each case to weigh the particular facts and to determine, in the exercise of wise administrative discretion, whether the act

would best be effectuated by directing reinstatement despite the fact that the given employees had found equivalent employment.

Discrimination in Readmission of Strikers

- The company separated the active from the loss active unionists on the basis of their militancy, or lack of it, on the picket lines

- If active – refused readmission even after they were able to secure clearances

- Discrimination undoubtedly exists where the record shows that the union activity of the rehired strikers has been less prominent than that of the strikers who were denied reinstatement

- Employer committed ULP

Exaction of promise or clearances from returning strikers- The exaction by the Company from the strikers returning to work of a

promise not to destroy company property and not to commit acts of reprisal against the union members who did not participate in the strike – cannot be considered as intended to encourage or discourage union membership done only as an act of self preservation and designed to insure the maintenance of peace and order in the Company

BACKWAGES

General Rule: No Backwages in Strike

1. Economic Strike

- Strikers are not entitled to backwages on the principle that “a labor fair day’s wage” accrues only for a fair day’s labor

Alternative: when a laborer absents himself from work because of a strike or to attend to a conference or hearing in a case or incident between him and his employer, he might:

a. Seek reimbursement of his wages from his union which had declared strike or filed the case in the industrial court; or

b. Charged his absence from work against his vacation leave.2. Unfair Labor Practice

Types of employees involved:

a. Discriminately dismissed for union activities

o Entitled to reinstatement

o Received backpay from the date of the act of discrimination, that, is from the day of their discharge

b. Voluntarily went on strike even if it is protest of an ULP

o Entitled to reinstatement

Exception to Reinstatement:Those even discriminatorily discharged, but because of:i. Unlawful conduct; orii. Because of violence

o No backwages because the stoppage of work was not direct consequence of the companies ULP

o Economic loss of the employee should not be shifted to the employer

Employer’s Right to Hire Replacements During Strike

If ULP Strike – the strikers have a right to reinstatement, notwithstanding that the management have hired workers to replace them

Points to Consider in Hiring Replacement

a. Replacements did not gain permanent right to the positionb. Neither could such temporary employment bind the employer to retain

permanently the strikersc. Failure or refusal of the employer to obey the court order reinstating

the striker’s constitute contempt of court

Striker’s who have not found substantially equivalent employment elsewhere- Reinstatement follows as a matter of right, notwithstanding that the

employer has hired others to take place of the strikers for the purpose of continuing the operations of the business

Civil Liability of Labor Organizations

a. Not liable for Unauthorized Acts of Officers

o Labor organizations are not liable in damages for the unauthorized or ungratified unlawful acts of their officials nor they are responsible for the unlawful acts of the individual members which neither their officers nor committees have directed, added or approved

b. Liability of Labor Organizations

o Where the acts of labor unions and their members are unlawful and tortuous, the officers participating in such unlawful actions are liable for the resulting damages irrespective of the fact that they were acting on behalf of the union

o Also liable for unlawful and tortious acts done pursuant to a conspiracy to which unions are a party.

c. Liability of Members of Labor Organizations

o Not subject to civil liability for the acts of the unions or its officers unless it is shown that they personally authorized or participated in the particular acts, and the liability of a member of a labor union for the wrongful acts of his associates done without his knowledge or approval is not to be inferred from mere membership in the union

d. Liability of Labor Unions for Damages Arising from Boycotts

o Can claim damages against all and any of the persons who have combined against him, provided there is causal connection between the acts complained of and the damages suffered.

e. Liability of Labor Unions for Damages for Interfering with Right of Workers to Work

o It can be against anyone, including a labor union, its officers or members or any employer

Acts committed:i. Who unlawfully prevents one from procuring employmentii. Who intentionally and without legal justification or excuse

procure an employer to discharge his employee

f. Liability for Extorting Money from Employers

- A labor union has no authority/right to extort money from employers as the price of forbearance from threatened labor difficulties

DAMAGES

General Rule: union officers may not be vicariously held liable for illegal acts of strike

Present Rule: For a labor union and/or its officials and members be held liable, there must be proof of actual participation or authorization, or ratification of the illegal acts