I.

LABOR CODE PROVISION:

Art. 264. Prohibited activities.

Article 264(a) - which provides for the termination of the following:

Any employee, union officer or ordinary member who knowingly

participates in the commission of illegal acts during a strike (irrespective
of whether the strike is legal or illegal), is also deemed to have lost his
employment status.

II. DISCUSSION:

Generally, an employee who participates in a lawful strike is not

deemed to have abandoned his employment regardless if the employee is a
union officer or a member. On the other hand, the mere finding or declaration
of illegality of the strike will result in the termination of all union officers who
knowingly participated in the illegal strike. The mere finding or declaration
of illegality of a strike will not result in termination of ordinary union
members. For an ordinary union member to suffer termination, it must be
shown by clear evidence that he has committed illegal acts during the strike.

Participation in the commission of illegal acts during a strike.

a. Legality or illegality of strike, immaterial.

As far as liability for commission of illegal acts during the strike is
concerned, the issue of legality or illegality of the strike is irrelevant. As long
as the union officer or member commits an illegal act in the course of the
strike, be it legal or illegal, his employment can be validly terminated.

b. Meaning of “illegal acts.”

The term “illegal acts” under Article 264(a) may encompass a number
of acts that violate existing labor or criminal laws, such as the following:

1) Violation of Article 264(e) of the Labor Code which provides that “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.

3) Violation of any order, prohibition, or injunction issued by the DOLE

Secretary or NLRC in connection with the assumption of jurisdiction
or certification order under Article 263(g) of the Labor Code.
 The enumeration above is not exclusive as jurisprudence defines where
the term “illegal acts” has been interpreted and construed to cover other
breaches of existing laws.

The liability for illegal acts should be determined on an individual

basis. For this purpose, the individual identity of the union members who
participated in the commission of illegal acts may be proved thru affidavits
and photographs. Simply referring to them as “strikers,” or “complainants
in this case” is not enough to justify their dismissal.

c. Some principles on commission of illegal acts in the course of the strike.

a) Only members who are identified as having participated in the
commission of illegal acts are liable. Those who did not participate
should not be blamed therefor.

b) To effectively hold ordinary union members liable, those who

participated in the commission of illegal acts must not only be identified
but the specific illegal acts they each committed should be described
with particularity.

c) If violence was committed by both employer and employees, the same

cannot be cited as a ground to declare the strike illegal.

III. EXAMPLES:

1. The defiance by the union, its officers and members of the Labor
Secretary's assumption of jurisdiction or certification order constitutes
a valid ground for dismissal.

 A strike that is undertaken after the issuance by the DOLE Secretary

of an assumption or certification order becomes a prohibited activity
and thus illegal. The defiant striking union officers and members, as
a result, are deemed to have lost their employment status.

2. Once the DOLE Secretary assumes jurisdiction over a labor dispute or

certifies it to the NLRC for compulsory arbitration, such jurisdiction
should not be interfered with by the application of the coercive
processes of a strike or lockout. Any defiance thereof is a valid ground
for the loss of employment status.

IV. ILLUSTRATIVE CASES:

1. In Sukhothai Cuisine and Restaurant vs Court of Appeals The Supreme

Court held that the following acts have been held to be prohibited
activities: where the strikers shouted slanderous and scurrilous words
against the owners of the vessels; where the strikers used unnecessary
and obscene language or epithets to prevent other laborers to go to
 work, and circulated libelous statements against the employer which
show actual malice; where the protestors used abusive and threatening
language towards the patrons of a place of business or against co-
employees, going beyond the mere attempt to persuade customers to
withdraw their patronage; where the strikers formed a human cordon
and blocked all the ways and approaches to the launches and vessels of
the vicinity of the workplace and perpetrated acts of violence and
coercion to prevent work from being performed; and where the strikers
shook their fists and threatened non-striking employees with bodily
harm if they persisted to proceed to the workplace.

2. In Samahang Manggagawa sa Sulpicio Lines, Inc.-NAFLU v. Sulpicio

Lines, Inc. The Supreme Court explained that the effects of such illegal
strikes, outlined in Article 264, make a distinction between workers and
union officers who participate therein: an ordinary striking worker
cannot be terminated for mere participation in an illegal strike. There
must be proof that he or she committed illegal acts during a strike. A
union officer, on the other hand, may be terminated from work when he
knowingly participates in an illegal strike, and like other workers, when
he commits an illegal act during a strike. In all cases, the striker must
be identified. But proof beyond reasonable doubt is not required.
Substantial evidence available under the attendant circumstances,
which may justify the imposition of the penalty of dismissal, may
suffice. Liability for prohibited acts is to be determined on an individual
basis
 School of Law
Saint Louis University
08 April 2019

In partial fulfillment of the requirements in

Labor Law II

Sumbitted to:
Judge Debbie Del Val

Submitted by:
Irwin Jones A. Magkachi
Kyth B. Pallogan