1. What is alternative dispute resolution (ADR)?
Alternative Dispute Resolution means any process or procedure used to resolve a labor dispute through conciliation, mediation, voluntary arbitration, or plant-level bipartite mechanisms, such as labor-management cooperation (LMC) and grievance machinery.
2. What is conciliation-mediation?
Conciliation-mediation is a non-litigious, non-adversarial, less expensive and expeditious mechanism in assisting the parties towards voluntarily reaching their own mutually acceptable settlement to the labor dispute. Under this informal set-up, the parties arrive at an amicable settlement without going through legal procedures.
3. Who can avail of conciliation and mediation services?
Any party to a labor dispute, whether an individual, union or management, can avail of the conciliation mediation services at the National Conciliation and Mediation Board (NCMB) and its Regional Branches thru a request for assistance, notice of preventive mediation or notice of strike/lockout.
4. What are the issues that may be the subject of preventive mediation?
A preventive mediation may be filed by an individual, union or management on any issue arising from violation of the right to self-organization, including issues for notice of strike or lockout, to avoid the occurrence of actual labor disputes.
5. Suppose the issue on preventive mediation is not settled, what action may be taken?
The individual, union or management may file a notice of strike/lockout.
6. Who can file a notice of strike?
Unions that are certified as the sole and exclusive bargaining agent (SEBA) may file a notice of strike at the NCMB Regional Branch. In the absence of a SEBA, a legitimate labor organization may file but only on grounds of ULPs.
7. What are the valid issues/grounds that may be the subject of a notice of strike/lockout?
A notice of strike or lockout may be filed on grounds of unfair labor practice (ULP) or deadlock in collective bargaining (CB).
8. May the union or management bring the case to voluntary arbitration?
Yes. Upon agreement, the parties may bring the matter for resolution before an accredited voluntary arbitrator of their own choice, in which case the Notice is deemed automatically withdrawn and dropped from the dockets.
9. What happens in case no settlement is reached?
The union/management may go on strike/lockout provided the following are complied with:
a) A request to the concerned NCMB regional branch to observe the conduct of the strike/lockout vote;
b) Actual conduct of strike/lockout vote must be approved through secret ballot by the majority of the union members/board of directors of the corporation or association or of the partners in a partnership;
c) The result of the strike or lockout VOTE shall be submitted to the concerned NCMB-Regional Branch;
d) The union must wait for the lapse of the 7-day mandatory strike ban period from the submission of the strike/lockout vote results to give NCMB last ditch effort to effect settlement.
10. What are the periods to be observed before going on strike?
If the ground of the notice of strike is CB deadlock, the cooling-off period is 30 days. If ULP, 15 days. During these periods, the NCMB shall exert all efforts at the mediation and conciliation to effect voluntary settlement. If Union Busting, the cooling-off period is dispensed with but the mandatory 7-day Strike Ban period must be complied with.
11. When may a strike or lockout be declared illegal?
A strike or lockout may be declared illegal if any of the requirements for a valid strike or lockout is not complied with. It may also be declared illegal if it is based on non-strikeable issues or if the issues involved are already the subject of arbitration. During a strike or lockout, when either of the parties commits prohibited acts or practices, the strike or lockout may be declared illegal.
12. Who has jurisdiction to determine the legality of strike or lockout?
In general, the Labor Arbiter in the appropriate Arbitration Branch of the NLRC has the power to determine questions involving the legality or illegality of a strike or lockout upon the filing of a proper complaint and after due hearing.
Where the matter of legality or illegality of a strike is raised in the dispute over which the Secretary assumed jurisdiction or in compulsory arbitration, the same may be resolved by the Secretary or the Commission, respectively. (IPI vs. Sec. of Labor and Associated Labor Unions, G.R. No. 92981-83, January 9, 1992.)
13. Is conciliation-mediation still possible during actual strike or actual lockout?
Yes. Conciliation-mediation can still continue even during an actual strike or lockout to exhaust all possible remedies and explore solutions mutually acceptable to both parties in resolving the labor dispute.
14. What may the union do if the ground for notice of strike is ULP that involves dismissal of union officers?
In case of dismissal of union officers, the 15-day cooling-off period shall not apply and the union may declare a strike after observing the 7-day mandatory strike ban period which starts after submission of the strike vote results.
15. What may happen if the dispute is considered to be imbued with national interest?
The Secretary of Labor and Employment may assume jurisdiction over the dispute or certify it to the NLRC for compulsory arbitration.
16. Is conciliation-mediation still possible even if the dispute has already been assumed or certified?
Yes. The duty to bargain collectively continues until all issues involved in the dispute have been resolved and at any point during the pendency of the case at the Office of the Secretary or at the NLRC, the parties can still submit the dispute to voluntary arbitration.
17. What is the effect of assumption of jurisdiction or certification for compulsory arbitration?
The strike is enjoined and the striking workers after due notice are ordered to return to work and the management to accept them while the Secretary of Labor or the NLRC resolves the dispute.
18. What is the effect if the strikers refuse to obey the assumption/certification order?
The strike becomes a prohibited activity and the strike becomes illegal. The union officers or members will be deemed dismissed from employment.
19. Can the employer file a petition to declare the strike illegal?
Yes. An employer may file a petition to declare the strike illegal at the NLRC-RAB where the employer is located.
20. What is the consequence of an illegal strike?
When the strike is held illegal, only the union officers who knowingly participated will be considered to have lost their employment status. The union members who knowingly participated in the commission of illegal acts during the strike may be held liable.
21. What is a grievance?
A grievance is any question by either the employer or the union regarding the interpretation or implementation of the collective bargaining agreement or interpretation or implementation of company personnel policies or interpretation or implementation of the productivity incentive programs or wage distortion issues or any claim by either party that the other party is in violation of any provision of the CBA or company personnel policies.
22. What are the sources of a grievance?
a. Contract (Collective Bargaining Agreement)
b. Company Personnel Policies and Company Rules and Regulations
c. Company Productivity Incentive Programs
e. Past practice
23. What are the types of grievances?
a. Rights disputes – pertain to any violations arising from rights established under collective agreements, laws, rules and regulations and customary practices.
b. Interests disputes – are often referred to as bargaining deadlock issues which may also be submitted to voluntary arbitration upon agreement of the parties.
c. Discipline cases – refer to violators of the usual norms or personnel conduct or behaviour of employees.
24. What are the grounds for a grievance to exist?
a. There is a violation of the CBA provisions. (It arises out of interpretation or implementation of CBA)
b. A worker has been treated unfairly by some decision or policy of the company. (It involves a disciplinary action of management)
c. There is violation of law or health and safety regulation.
d. There is violation of a past practice.
e. There is a violation of employer responsibility.
f. Wage distortion issues.
g. Issues arising from the interpretation or implementation of the productivity incentive programs.
25. Who can file/initiate a Grievance?
a. Aggrieved (individual) employee
b. Group of employees
c. The Union
d. Management or Employer
26. How is a grievance resolved?
The grievance is resolved through the grievance machinery or committee as provided for in the CBA. The procedure may vary from CBA to CBA, but the ideal procedure shall be as follows:
a) An employee shall present the grievance or complaint orally or in writing to the shop steward;
b) If the grievance is valid, the shop steward shall immediately bring the complaint to the employee’s immediate supervisor;
c) If no settlement is reached, the grievance shall be referred to the grievance committee which shall have ten (10) days to decide the case. (Rule 19, Sec. 2. D.O. 40-03)
27. What happens if a grievance is not resolved?
The unresolved issue/s in the grievance shall be submitted to voluntary arbitration.
28. What is Voluntary Arbitration?
Voluntary Arbitration is a mode of settling labor-management dispute by which the parties select a competent, trained and impartial person who decides on the merits of the case and whose decision is final, executory and binding. It is the terminal step after the parties have exhausted their grievance machineries.
29. Who is a voluntary arbitrator?
Any person who has been accredited by the Board as such, or any person named or designated in the collective bargaining agreement by the parties as their voluntary arbitrator, or one chosen by the parties with or without the assistance of the Board, pursuant to a selection procedure agreed upon in the CBA or one appointed by the Board in case either of the parties to the CBA refuses to submit to voluntary arbitration. The term includes panel of voluntary arbitrators.
30. What are the kinds of a voluntary arbitrator?
a. Permanent Arbitrator – the voluntary arbitrator specifically named or designated in the collective bargaining agreement by the parties as their voluntary arbitrator.
b. Ad-hoc-arbitrator – the voluntary arbitrator chosen by the parties in accordance with the established procedures in the CBA or the one appointed by the Board in case there is failure in the selection or in case either of the parties to the CBA refuses to submit to voluntary arbitration.
31. What are the disputes/issues that may be submitted to voluntary arbitration?
a. All unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement. (Art. 261, Labor Code)
b. All unresolved grievances arising from the implementation or enforcement of company personnel policies. (Art. 261, LC)
c. All wage distortion issues arising from the application of any wage orders in organized establishments. (Art. 124, LC)
d. All unresolved grievances arising from the interpretation and implementation of the productivity incentive programs RA 6971.
e. All other labor disputes including unfair labor practices. (Art. 262, LC)
f. Bargaining deadlocks (Art. 262,LC)
g. Assumed or certified “national interest cases” before or any stage of the compulsory arbitration process (Art. 263[h], LC)
h. Illegal dismissal cases under Policy Instruction No. 56 dated April 6, 1993.
32. How does a voluntary Arbitrator or panel of Voluntary Arbitrators acquire jurisdiction over a case?
Pursuant to DO 40-03 and Revised Procedural Guidelines on VA, a Voluntary Arbitrator or panel of Voluntary Arbitrators acquire jurisdiction over a specific dispute upon receipt of the following:
a. submission agreement signed by the parties;
b. notice to arbitrate signed by a party to a CBA with an agreement to arbitrate; or
c. appointment/designation as VA by the National Conciliation and Mediation Board (NCMB) in either of the following circumstances:
- In the event the parties fail to select an arbitrator; or
- In the event that: a) a NTA is served; b) the CBA does not name in advance an arbitrator; and c) the other party upon whom the notice is served does not reply favorably within seven (7) days from receipt of such notice.
33. What is a Submission Agreement?
It is written agreement by the parties submitting their case for arbitration containing the issues, the chosen arbitrator and stipulation to abide by and comply with the resolution, including the cost of arbitration.
34. What is the remedy of a party who wants to submit to a Voluntary Arbitration despite the refusal of the other party after exhaustion of grievance procedure but the grievance remains unresolved?
Submit the case through a procedure called the Notice to Arbitrate.
35. What is a Notice to Arbitrate?
It is a formal demand made by one party to the other for the arbitration of a particular dispute in case of refusal of one party to a CBA to submit to arbitration.
36. What is the procedure to a Notice to Arbitrate?
- The Notice is served upon the unwilling party, copy furnished the permanent arbitrator and the NCMB Regional Branch having jurisdiction over the workplace;
- Upon receipt of a notice to arbitrate after the lapse of the seventh-day period within which to respond, the permanent arbitrator/s shall immediately commence arbitration proceedings.
- In the absence of a permanent arbitrator in the CBA, the Board/Branch appoints a voluntary arbitrator who shall immediately commence arbitration proceedings upon receipt of such appointment.
37. What is the period required of a voluntary arbitrator or panel of voluntary arbitrators to render an award or decision?
Unless the parties agree otherwise, a Voluntary Arbitrator or panel of voluntary arbitrators are mandated to render an award or decision within 20 calendar days from date of submission for decision.
38. May the parties to a case enter into an amicable settlement of their dispute pending resolution by the arbitrator?
Yes. In the event that the parties finally settle their dispute during the pendency of the arbitration proceedings, the terms of settlement shall be reduced into writing and shall be adopted as the DECISION of the arbitrator.
39. What are the advantages of resorting to voluntary arbitration in the resolution of a dispute?
c. Finality of decisions
d. Economical for both in terms of time, money and resources
e. Alternative to Industrial Action
f. Non-litigious, non-adversarial, non-technical
g. Arbitrable issues are not strikeable as mandated by law
40. What is labor-management cooperation?
Labor-management cooperation is a state of relations where labor and management work hand in hand to accomplish certain goals using mutually acceptable means. It provides schemes of workers’ participation in decision making process through information sharing, discussion, consultation and negotiations.
41. Is there a need for labor-management cooperation?
Yes, because labor and management are social partners sharing a common interest in the success and growth of the enterprise and the economy to promote workers’ participation in decision-making processes, create a labor relations climate conducive to productivity improvement, improve the quality of working life and achieve and sustain economic growth.
42. What are the mechanisms to promote labor-management cooperation?
The following are the mechanisms:
a. direct participation mechanisms through small group activities like quality control circles or productivity improvement circles;
b. indirect participation mechanisms through joint consultative bodies like labor-management councils or committees;
combination of direct and indirect participation mechanisms like joint bodies and small group activities.