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F. National Conciliation and Mediation Board

1. Jurisdiction

a. Jurisdiction of the NCMB

1) Collective bargaining disputes (Article 261 [250] (c), Labor Code)

2) Notice of strike or lockout (Rule V, Revised NCMB Manual of Procedures for Conciliation and Preventive Mediation Cases, 2017 edition)

3) Preventive mediation (Ibid.)

2. Conciliation as distinguished from mediation

a. Conciliation

Conciliation – is a mild form of intervention by a neutral third party, the Conciliator-Mediator, who relying on his persuasive expertise, takes an active role in assisting parties by trying to keep disputants talking, facilitating other procedural niceties, carrying messages back and forth between the parties, and generally being a good fellow who tries to keep things calm and forward-looking in a tense situation. (No. 4, Rule III, Revised NCMB Manual of Procedures for Conciliation and Preventive Mediation Cases, 2017 edition)

Conciliator-Mediator – refers to an official of the National Conciliation and Mediation Board (NCMB) whose principal function is to settle and dispose of potential and actual labor disputes through preventive mediation and conciliation including the promotion of voluntary approaches to labor disputes prevention and settlement. (No. 6, Rule III, Ibid.)

b. Mediation

Mediation – is a mild intervention by a neutral third party, the Conciliator-Mediator, who advises the parties or offers solutions or alternatives to the problems with the end in view of assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute. (No. 22, Rule III, Ibid.)

3. Preventive mediation

a. Concept

Preventive mediation case – refers to the potential labor dispute subject for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB to avoid occurrence of actual labor dispute. (No. 28, Rule III, Ibid.)

b. Who may file

The following may file a request for preventive mediation, notice of strike or lockout:

1) The president or any authorized representative of a certified or duly recognized bargaining representative in cases of bargaining deadlocks and unfair labor practices.

2) In the absence of a certified or duly recognized bargaining representative, the president or any authorized representative of a legitimate labor organization in the establishment on grounds of unfair labor practice.

3) The employer or any unauthorized representative in cases of bargaining deadlocks and unfair labor practices.  (Section 3, Rule IV, Ibid.)

c. Where to file

A request for preventive mediation, notice of strike or lockout shall be filed through personal service or by registered mail/private couriers with the Regional Branch having jurisdiction over the workplace of the union members. (Section 4, Rule IV, Ibid.)

d. Cooling-off period and exception

In cases of bargaining deadlocks, the cooling-off period is thirty (30) days, while, in cases of unfair labor practice, the period is fifteen (15) days. However, in case of unfair labor practice involving the dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union-busting where the existence of the union is threatened, the 15 day cooling-off period shall not apply and the union may take action immediately after the strike vote is conducted and the results thereof submitted to the Regional Branch of the Board, subject to the 7-day strike ban period. (Section 7, Rule IV, Ibid.)

The cooling-off period shall be reckoned from the date of receipt of the notice by the Regional Branch. In determining the period, the first day shall be excluded and the last day included. (Paragraph 2, Section 7, Rule IV, Ibid.)

e. Grounds and issues

A strike or lockout may be declared in cases of:

1) Deadlock in collective bargaining;

2) Unfair labor practices; and

3) Flagrant and/or malicious refusal to comply with the economic provisions of the collective bargaining agreement. (Section 1, Rule V, Ibid.)

f. Conversion of Notice Strike/Lockout to Preventive Mediation

In converting a notice of strike or lockout to a preventive mediation case the following guidelines shall be observed:

1) Clearly determine whether the issue/s raised is/are valid ground/s for NS/L;

2) If conversion is warranted, a written recommendation from the Conciliator-Mediator handling the case is required, after due consultation with the Branch Director;

3) The written recommendation must be formally endorsed to the Branch Director for approval;

4) The conversion shall be done before the cooling-off period expires;

5) Parties concerned must be formally notified of the action taken by the Regional Branch through a letter signed by the Conciliator-Mediator handling the case and approved by the Branch Director;

6) The notice shall be dropped from the dockets and to be renumbered as a preventive mediation case; and

7) A conference shall be immediately set by the concerned Conciliator-Mediator.

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