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How to Stop a Strike or a Lock-Out

September 14, 2018

How do you stop a strike or lockout the legal way?

Other than doing an open discussion to address the employees or the management’s concerns, here are the possible remedies in stopping a strike of employees and employers’ lockout:

Improved offer / Strike:

  • Conduct a referendum through secret balloting on improved offer of the company (employer)
  • Majority of the total union membership agree to the improved offer, immediate return to work upon signing of Agreement

OR

Reduced offer / Lock-out

  • Referendum by secret balloting on reduced offer by Union
  • Majority of the Board of Partners agree to the reduced offer, immediate return to work upon signing of Agreement

Here are some notes and points to consider before availing of an injunction:

  1. Petition for Injunction must be under oath. It must allege that prohibited or unlawful acts complained of may cause irreparable damage to part or render ineffectual any decision in its favor.
  2. The petition for an injunction will be granted on after hearing the testimony of witnesses and/or with opportunity for cross-examination in support of the petition, and testimony by way of opposition if offered. It must be ONLY after the finding of fact made by the Commission.
  3. This remedy may be used if an employer’s business is not indispensable to the national interest.
  4. An injunction requires a cash bond.

Requirements for a petition for Secretary of Labor to assume jurisdiction over a labor dispute or certify the same to NLRC for compulsory arbitration:

Elements:

  1. There is a labor dispute
  2. Said labor dispute is causing or likely to cause a strike or lock-out
  3. Said labor dispute involves an industry indispensable to the national interest
  4. It results in return-to-work if the strike is taking place; if the impending strike, then the same is enjoined.

**The decision of the Secretary of Labor and Employment to assume jurisdiction is an exercise of discretionary power, and not subject to review

**Assumption or Certification order automatically carries a return-to-work order even if not specified. Defiance of this return-to-work order may lead to loss of employment status.

Who may declare a strike or lock-out?

Under the Implementing Rules and Regulations (IRR), Book V, Rule XIII, Section 2:

Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlocks or unfair labor practice. However, the exception is that in the absence of a certified or duly recognized bargaining representative, any “legitimate” labor organization may declare a strike, but only on the ground of unfair labor practice.

There are only two kinds of strikes allowed:

  1. Economic strike
  2. Unfair labor practice strike

What are the issues cannot be considered as a valid ground for a strike?

  1. Violations of the collective bargaining agreement not gross in character will be resolved via the grievance machinery.
  2. Inter-union or intraunion disputes are likewise not a valid reason or ground to strike.
  3. Labor standards cases. Example: Wage orders.
  4. Issues already brought to voluntary or compulsory arbitration.

Take note that violations of collective bargaining agreements are no longer unfair labor practice. (Except in case of gross violation of the economic provisions of the collective bargaining agreement).

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