i. Conciliation-Mediation; Preventive Mediation

Conciliation as distinguished from Mediation

Conciliation – Mediation refers to the process of dispute management conducted by a Conciliator – Mediator with the end in view of facilitating amicable settlement of the labor dispute. (NCMB Manual of Procedures Rule III, Section 1, (4))

Privileged Communication

Information and statements made at conciliation meetings shall NOT be used as evidence in the NLRC. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceeding conducted by them.

Preventive Mediation

NCMB Manual of Procedures Section 1, (24), refers to Preventive Mediation cases as labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB.

A notice of strike must be filed by the certified or duly recognized bargaining agent where the law so requires. Either or both parties to a potential labor dispute may request preventive mediation assistance from the NCMB.

NCMB has no jurisdiction to entertain any notice filed by the federation in behalf of individual union members of its local. (Insular Hotel Employees Union-NFL v. Waterfront Insular Hotel Davao, G.R. No. 174040-41, 2010)

Balancing of interests

It is high time that employer and employee cease to view each other as adversaries and instead recognize that theirs is a symbiotic relationship, wherein they must rely on each other to ensure the success of the business. When they consider only their own self-interests, and when they act only with their own benefit in mind, both parties suffer from short-sightedness, failing to realize that they both have a stake in the business.

The employer wants the business to succeed, considering the investment that has been made. The employee in turn, also wants the business to succeed, as continued employment means a living, and the chance to better one’s lot in life. It is clear then that they both have the same goal, even if the benefit that results may be greater for one party than the other. If this becomes a source of conflict, there are various, more amicable means of settling disputes and of balancing interests that do not add fuel to the fire, and instead open avenues for understanding and cooperation between the employer and the employee. (Toyota Motor Phils. Corp Workers Ass’n. v. NLRC, G.R. No. 158786, 2007)

2. COOLING-OFF PERIOD

NCMB, upon receipt of the notice of strike and during the cooling-off period, mediates and conciliates the parties. The Regional branch of the Board may, upon agreement of the parties, treat a notice as a preventive mediation case. It shall also encourage the parties to submit the dispute to voluntary arbitration.

In cases of ULP strike, the cooling-off period need not be observed when union-busting is present. (Labor Code, Art. 278)

Elements of Union Busting: (Labor code, Art. 278(c))

• The union officers are being dismissed
• Those officers are duly elected in accordance with the union constitution and by-laws
• The existence of the union is threatened

3. STRIKE VOTE (Labor code, Art. 278(f))

A strike/lockout vote should be taken by secret balloting, in meetings or referenda specially called for the purpose.

The regional branch of the Board may, at its own initiative or upon request of any affected party, supervise the conduct of the secret balloting.

NOTE: The requirement of giving notice of the conduct of a strike vote to the NCMB at least 24 hours before the meeting for the said purpose is designed to:

• inform the NCMB of the intent of the union to conduct a strike vote;
• give the NCMB ample time to decide on whether or not there is a need to supervise the conduct of the strike vote to prevent any acts of violence and/or irregularities attendant thereto; and
• should the NCMB decide on its own initiative or upon the request of an interested party including the employer, to supervise the strike vote, to give it ample time to prepare for the deployment of the requisite personnel, including peace officers if need be.

Unless and until the NCMB is notified at least 24 hours of the union's decision to conduct a strike vote, and the date, place, and time thereof, the NCMB cannot determine for itself whether to supervise a strike vote meeting or not and insure its peaceful and regular conduct. The failure of a union to comply with the requirement of the giving of notice to the NCMB at least 24 hours prior to the holding of a strike vote meeting will render the subsequent strike staged by the union illegal. (Capitol Medical Center Inc. v. National Labor Relations Commission, G.R. No. 147080, 2005)

NUMBER OF VOTES REQUIRED for strike/ lockout: Majority of the total UNION MEMBERSHIP OR OF THE DIRECTORS OR PARTNERS, as the case may be.

Preventive Mediation

The regional branch may treat the notice as a preventive mediation case upon agreement of the parties.