Republic of the Philippines

COURT OF APPEALS
Manila
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 119044

CA-G.R. SP No.

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 followingGROUNDS:
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
petitioners present hereunder the following -

grounds,

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.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

LeopoldoC. Lebrilla;
Marlon C. Valenzuela;
Oliver D. Nicolas;
Jayson B. Macaranas;
Dio Mark B. Diaz;
Alejandrino B. Alvarado;
Reynaldo E. Torres;
Bernardo B. Bueno;
Arnel R. Lamson;
Andres B. Bercilla;
Angelo T. Valentin;
Julius G. Guilalas;
Antolin V. Baas;
Raymar P. De Vera; and
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 midJanuary 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) rankand-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.

LAWIN
(Legal Advocates for Workers INterest)
Counsel for Complainant
Room 206, Jiao Building
2 Timog Avenue, Quezon City
Email address: lawin2setufree@yahoo.com
Telefax (02) 373-18-44

ERNESTO R. ARELLANO
PTR No. 0560896; 01-05-15; Q.C.
IBP No. 0981335; 01-05-15; CALMANA
ROLL No. 22660
MCLE No. IV-0017780; 22 April 2013

JASPER C. BALBOA
PTR No. 0595301; 01-06-15; Q.C.
IBP No. 0982982; 01-06-15; MANILA I
ROLL No. 63288
MCLE Compliance Until 14 April 2016
Admitted 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 & SANTIAGO
Counsel for Private Respondents
Ground Floor, Ortigas Building
Ortigas 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