Republic of the PhilippinesCOURT OF APPEALSManila

NINTH (9TH) DIVISION

FELIPE C. TIMCANG, JR., RONNEL C. ABIELA, VIRGILIO GRAFIL, GERARDO DOQUE, EDUARDO BULALACAO, MANUEL PEREZ, RICARDO PASCUA, ANDREW LAGAMON, LARRY BACAA, DEXTER FLORES, MELCHOR PEREZ, JOEL OLOYA, PIODOS DIODITO,JR ,GUILLERMO GRANADO, ARTHURO P. ENRIQUEZ, LEONARDO IBO, ROMEO CAPA, ELMER SAN ANDRES, FELIX BOSTON, RODELIO SAYAWAN, ZALDY LUNA, ROMMEL DELA CRUZ, HENRY NAPIGKIT, ALEX CORRE, VAL HERRERA, EDUARDO TANIG, RODEL GALLARDO, JESSIE MUAJE, DANILO MINOZA, JOSELEYMAN CERBITO, JOSEPH DONOR, BENJAMIN ASIOCHE, JIMMY MARCELINO, ARIEL ALEJANDRO, ERDIE TORRES, ALGIE RAMIREZ, ANJO PANAO, FELICISIMO CATANIAG, JUANITO MENDOZA, ALEXANDER PADIT, ROBERTO REYES, JR., LARRY CACHO, VIRGILLIO R. REYES, GLENN P. ENRIQUEZ, NELSON D. HUERTAS, APRIL F. ANGELES, NORBERTO H. CAPA, GREGORIO A. SALAZAR, AMIEL E. TRINIDAD, DAMASO V. CATAHAN, RODELIO L. DELA CRUZ, RUEL PASCUAL, NICANOR GOJOCRUZ ALARCON , JR., RICKY A. LLANES,. RUEL H. REYES, ANISIO U. DE VERA, GEMAR R. LLAGAS, NOJARIO G. HILADO, JERRY ALVARADO, SONNY CABALLERO, LORENZO CUSTODIO, ROGELIO CATAREG, BERNALD SEGUNDO, BERNARD ESTRELLA, MELCHOR OLOYA, EDDIE GONZALES, OLIVER NICOLAS, JOVENCIO LUMAGBAS, JAYSON, MACARANAS, ALEJANDRINO ALVARADO, JR., TEDDY BEDRIJO, ALVIN QUIONES, RODEN CONTANTE, FERNANDO ETIONG, JONDY BERMAL, NESTOR ROSARIO, EDGARDO FRANCISCO, MARLON CASTILLO, BERNARDO BUENO, ARNEL LAMSON, RITCHIE MALATE, RAYMAR DEVERA, RONALD MARCELINO, SYDRICK ENCINA, MICHAEL MARCO, RANDY OLOYA, MARION VALENZUELA, ANDRES BERCILLA, JANIVEN SALVADOR, GREGORIO PABALAN, NOEL PEAFIEL, JOSEPH ACAHEN, ARTHUR TINGZON, LEOPOLDO LEBRILLA, ROMEO NATIVIDAD, ALBERT FLORES, GILBERT ATOS, WILFREDO NOTORIO, ERNESTO FRANCISCO, ANGELITO BUENAVENTURA, ROEL HABLA, ROBEL DELA CRUZ, REXON SAMPAYAN, ERIC BALOCA, JULIUS BUCAG, ELISEO GUILALAS, ERNESTO OLERO, DANILO NATIVIDAD, JOSE ALFARO, ALEX LUAY, DEXTER GALISANAO, ANTOLIN BAAS, ROWELITO ARDIENTE, MONRIE L. AQUINO, ROMEO G. BIGTAS, JR, BERNARDINO C. BUCO, Petitioners,

versus -CA-G.R. SP No. 119044

NATIONAL LABOR RELATIONS COMMISSION, STAM BUILDERS & DEVELOPERS, INC. and MR. MANUEL U. AGUSTINES, Respondents.x---------------------------------------------x

PARTIAL MOTION FOR RECONSIDERATION

Petitioners, to this Honorable Court of Appeals, respectfully move for a partial reconsideration of its Decision dated 16 April 2015, which was received by the petitioners, through counsel, on 4 May 2015, on the following-

GROUNDS:

I

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSTAINING THE LEGALITY AND VALIDITY OF THE CLOSURE OF RESPONDENT STAM BUILDERS & DEVELOPERS, INC.

II

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT RESPONDENTS WERE NOT GUILTY OF UNFAIR LABOR PRACTICE.

III

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT PETITIONERS WERE NOT ILLEGALLY DISMISSED.

IV

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN TOTALLY DISMISSING PETITIONERS MONEY CLAIMS IN THESE CASES INCLUDING DAMAGES, ATTORNEYS FEES, LITIGATION AND OTHER RELATED EXPENSES.

By way of discussion of the foregoing grounds, petitioners present hereunder the following -

SUBMISSIONS:

I

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSTAINING THE LEGALITY AND VALIDITY OF THE CLOSURE OF RESPONDENT STAM BUILDERS & DEVELOPERS, INC.

With all due respect, the Honorable Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction when it did not give credence to petitioners pieces of evidence and arguments in support of their claims for illegal dismissal, unfair labor practice, damages, attorneys fees and other litigation expenses plus costs of suit but instead sustained the legality and validity of the closure of Stam Builders & Developers, Inc. The Honorable Court of Appeals finds SBDI to have presented sufficient proof that it incurred substantial losses as shown by the audited financial statements and that it substantially complied with the requirements of serving notices of closure or cessation of business to the DOLE and the employees.

With due respect, the Honorable Court of Appeals had missed the fact that while respondents claim that they served individual notice of termination to the affected employees in accordance with law, what respondents presented to prove their allegation in this regard are notices to the following employees only (Annex B of Respondents Position Paper dated 16 June 2009):

1.LeopoldoC. Lebrilla;2.Marlon C. Valenzuela;3.Oliver D. Nicolas;4.Jayson B. Macaranas;5.Dio Mark B. Diaz;6.Alejandrino B. Alvarado;7.Reynaldo E. Torres;8.Bernardo B. Bueno;9.Arnel R. Lamson;10.Andres B. Bercilla;11.Angelo T. Valentin;12.Julius G. Guilalas;13.Antolin V. Baas; 14.Raymar P. De Vera; and15.Bernard SM. Estrella

To consider that the NOTICES sent to the fifteen (15) employees above-named are sufficient to hold SBDI to have substantially complied with the requirements of serving written notices of closure or cessation of business to the DOLE and the employees is an outright transgression of fair play and justice.

Section 2(d) Rule 1 Book IV of the Omnibus Rules Implementing the Labor Code provides:

(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:

For termination of employment based on just causes as defined in Article 282 (now 296) of the Labor Code:

(i)A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

(ii)A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

(iii)A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

For termination of employment as defined in Article 283 (now 297) of the Labor Code, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before the effectivity of the termination, specifying the ground or grounds for termination.

Verily, from the foregoing provision, it is crystal clear that respondents did not afford petitioners the due process required by law even as they failed to adduce the purported individual notices given to each employee affected by the alleged closure of SBDI. What they proffered are mere sample copies of the Letter notifying the employees of the impending closure of the company one month prior to the effectivity thereof. (paragraph 5, page 3, respondents position paper dated 16 June 2009). The notices to these fifteen (15) employees cannot bind the remaining petitioners in this case because the law treats notice to employees affected by the closure or cessation of business a personal right.

Article 297 of the Labor Code provides that before any employee is terminated due to closure of business, it must give a one (1) month prior written notice to the employee and to the DOLE. In this relation, case law instructs that it is the personal right of the employee to be personally informed of his proposed dismissal as well as the reasons therefor; and such requirement of notice is not a mere technicality or formality which the employer may dispense with. Since the purpose of previous notice is to, among others, give the employee some time to prepare for the eventual loss of his job,the employer has the positive duty to inform each and every employee of their impending termination of employment. To this end, jurisprudence states that an employers act of posting notices to this effect in conspicuous areas in the workplace is not enough. Verily, for something as significant as the involuntary loss of ones employment, nothing less than an individually-addressed notice of dismissal supplied to each worker is proper. (Sangwoo Phils. vs. Sangwoo Phils., Inc. Employee Union-Olalia, G.R. No. 173154, 9 December 2013). (Emphasis supplied).

It must be strongly put on record that respondents just abruptly and summarily closed and ceased operations at the time that their employees were in the height of pursuing the recognition of their union as the sole and exclusive bargaining agent of respondent-appellee SBDIs rank-and-file employees for purposes of collective bargaining.

The thirty (30)-day notice requirement to the employees in case of closure was not observed by respondents. Records of these case will clearly reveal that respondents failed to present any evidence to substantially prove that in truth and in fact they notified petitioners thirty (30) days prior to the date of SBDIs closure subject of this case. What can only be found in the records of these cases are self-serving assertions and/or allegations of respondents to that effect. As assertion and/or allegation is not equivalent to proof, this is very basic under the Rules of Evidence, the same deserve scant consideration.Respondents acts prior, during and after the first certification election including their subsequent filing of a petition for cancellation of the certificate of registration of the mother federation (KMM-KATIPUNAN) of herein union speaks for themselves. These acts are completely but concisely narrated in the Protest (Annex E of petitioners position paper).

Respondents petition for cancellation of the registration of the herein federation, Kilusan ng Manggagawang Makabayan (KMM-KATIPUNAN for brevity) had already been attached as Annex B in petitioners rejoinder in these cases and now forming part of the records of these cases.

The evidence made as sole basis for declaring respondents closure and cessation of business operation valid and legal were only alleged audited financial statements of SBDI for the two (2) preceding years (years 2007 & 2008) plus their self-serving allegations to that effect. At the risk of being repetitious, said financial statements were mere photocopies, unsigned and hardly readable and discernable.

What is more interesting is the fact that the alleged audit of respondent SBDI was only made on 14 April 2009. This is quite clear in the Independent Auditors Report, copy of which already formed part of the record of these cases.

Practically, it is certainly physically impossible to say that respondents have already known the exact financial standing of the company (SBDI) prior to the audit, as discussed above. The closure was done in March 2009 while the audit was made April 2009 or a month after the closure. This is tantamount to putting the cart ahead of the horse.

To reiterate, once more, even the Honorable Labor Arbiter a quo noticed that the alleged audited financial statements were mere photocopies and were not signed by the person who executed the same. It is respectfully submitted that the same cannot, by any stretch of imagination, be reasonably utilized as evidence to prove that, in truth and in fact, respondent SBDI was really suffering substantial losses. This is so plain to be mistaken.

It is quite worth to note and reiterate that what are at stake here are the lives and/or livelihood of the hundreds of employees of respondent SBDI and their families. Substantial justice therefore dictates that the same (respondent SBDI alleged audited financial statements) must be declared as nothing but useless scrap of papers which has no probative value whatsoever for reasons herein above discussed.

The alleged termination of respondent SBDIs service contracts with its sister companies (Ramcar Technology, Inc., Philippine Recyclers, Inc. and Philippine Batteries, Inc.) are obviously a product of pure and complete illicit manipulations. It must be strongly put on record that respondent SBDI, Ramcar Technology, Inc., Philippine Recyclers, Inc. and Philippine Batteries, Inc. belong to the RAMCAR group of companies, owned and controlled by respondent Agustines.

The termination of service contracts adverted to by the respondents was made between the middle of January and first week of February 2009. Therefore, the same could not possibly contribute to the alleged losses suffered by respondent SBDI. In fact, the same was not even explained by the respondents. How these alleged termination of service contracts with their sister companies resulted to the huge losses of SBDI remains a mystery.

It must be duly noted that the period between the mid-January 2009 to February 2009 was the height of the struggle of the employees of SBDI to have their union, herein union, recognized and certified as the sole and exclusive bargaining agent of respondent SBDIs rank-and-file employees.

Respondents did not present any proof and/or explanation why respondent SBDI suffered the alleged huge losses. It also failed to present any explanation that continuation of its (SBDI) operation is no longer feasible under the circumstances.In the absence of valid explanation and/or substantiation of the aforementioned points and taking into consideration that respondents violated the thirty (30)-day notice rule; the herein questioned financial statements were unsigned and made only on 14 April 2000, a month after the closure; no proof of prior cancellation of service contracts with their alleged principals which caused the alleged huge losses of respondent SBDI; and the timing of the closure, among others, will definitely result to a conclusion that respondent SBDIs closure, subject of this case, was tainted with bad faith and therefore illegal. This is so plain to be mistaken.II

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT RESPONDENTS WERE NOT GUILTY OF UNFAIR LABOR PRACTICE.

Respondents were guilty of unfair labor practice for seriously interfering to the purely union affairs of their employees (herein petitoners) and for union busting.

The acts committed and/or perpetrated by respondents prior, during and after the certification of the herein union as the sole and exclusive bargaining agent of its (SBDI) rank-and-file employees, including the timing of the closure of respondent SBDI and its (SBDI) filing of a petition for the cancellation of the certificate of registration of the mother federation (KMM-KATIPUNAN) of herein union speaks for themselves.

III

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT PETITIONERS WERE NOT ILLEGALLY DISMISSED.

All the herein petitioners were clearly illegally dismissed. Having been sufficiently held that none of them were project employees and the closure of SBDI was illegal, their consequent dismissal from employment are at all points illegal. This is very plain to be mistaken.

IV

WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN TOTALLY DISMISSING PETITIONERS MONEY CLAIMS IN THESE CASES INCLUDING DAMAGES, ATTORNEYS FEES, LITIGATION AND OTHER RELATED EXPENSES.

To reiterate, once more, the sample pay slips attached in respondents rejoinder covered only eight (8) employees. The same could not reasonably cost the lumped sum denials of these claims for obvious reasons as these cases involved 128 individual complainants.

Besides, a closer scrutiny of said sample pay slips does not in any way exculpate herein respondents from liability for the said money claims subject of these cases. They (sample pay slips) were mere photocopies and the entries therein could hardly be read and determined with reasonable certainty.

The best evidence therefore needed in order to resolve these claims with reasonable certainty are the payrolls and time cards of the petitioners which are clearly in the possession of respondents. Why respondents withheld the presentation of said documents? The answer is very simple. Presenting the same will surely legitimize said claims of herein petitoners. This is very plain to be mistaken.

In addition, settled is the rule in this jurisdiction that in money claim cases the burden of proof is on the employer for the simple reason that it is the one in possession of all the necessary documents and pieces of evidences to best ascertain said claims.

As to the issues of petitioners entitlement to damages, attorneys fees, litigation and other related expenses, the same have been sufficiently and lengthily discussed in petitioners previous pleadings and are just hereby repleaded by reference.

WHEREFORE, in view of all the foregoing, it is most respectfully prayed for that after due consideration, the Decision of the Honorable Court of Appeals, Ninth Division, dated 16 April 2015, subject of this partial motion for reconsideration, BE RECONSIDERED AND SET ASIDE and new one BE ENTERED in favor of the petitione as follows:

1. DECLARING respondent SBDIs closure as an act of unfair labor practices (serious union interference and union busting);

2. DECLARING all the herein petitioners to have been illegally dismissed;

3. DIRECTING respondents to reinstate all the petitioners to their former positions without loss of seniority rights and other privileges and with FULL BACK WAGES from the time they were deprived of their work until they are actually reinstated to their formers positions;

4. HOLDING all respondents solidarily LIABLE for DAMAGES in the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS, for each petitioner, as moral damages and TWO HUNDRED THOUSAND (P200,000.00) PESOS, for each petitioner, for exemplary damages;

5. HOLDING all respondents LIABLE, jointly and severally, for all the money claims herein claimed.

6. DECLARING respondents liable to reimburse petitoners all their litigation and other related expenses, including attorneys fees equivalent to ten (10%) percent of the total monetary award.

OTHER RELIEFS deemed just and equitable under the premises are likewise prayed for.

Quezon City, 19 May 2015.

L A W I N(Legal Advocates for Workers INterest)Counsel for ComplainantRoom 206, Jiao Building2 Timog Avenue, Quezon CityEmail address: lawin2setufree@yahoo.comTelefax (02) 373-18-44

ERNESTO R. ARELLANOPTR No. 0560896; 01-05-15; Q.C.IBP No. 0981335; 01-05-15; CALMANAROLL No. 22660MCLE No. IV-0017780; 22 April 2013

JASPER C. BALBOAPTR No. 0595301; 01-06-15; Q.C.IBP No. 0982982; 01-06-15; MANILA IROLL No. 63288MCLE Compliance Until 14 April 2016Admitted to the Bar on 07 May 2014

COPY FURNISHED: by registered mail w/ rc

NLRC-FOURTH DIVISION PPSTA Building, Banawe Street,1100 Quezon City SANTIAGO & SANTIAGOCounsel for Private RespondentsGround Floor, Ortigas BuildingOrtigas Avenue, Pasig City 1605

EXPLANATION

Due to constraint of time and the unavailability of messengers to render the preferred personal filing and service, the foregoing Partial Motion for Reconsideration was filed with this Honorable Court of Appeals and a copy thereof was served on the adverse party and the Honorable NLRC through registered mailed.

ERNESTO R. ARELLANO