REPUBLIC OF THE PHILIPPINES

DEPARTMENT OF LABOR AND EMPLOYMENT

NATIONAL LABOR RELATIONS COMMISSION
Sub-Regional Arbitration Branch No. IV
San Pablo City, Laguna

MARIO G. ILAGAN, JR., et al.,

Complainant

NLRC CASE NO. SRAB-IV-04-5710-

13-L

BETONBAU PHIL., INC.

KARL J. STEINER, et al.,
Respondents

x------------------------x

POSITION PAPER
FOR THE RESPONDENTS
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Respondents, through counsel and unto this Honorable Office,
respectfully states:

PREFATORY STATEMENT

“This case is a novelty as is challenges the management’s

prerogative to discipline its employees in accordance with the
existing labor laws.”

STATEMENT OF THE FACTS AND OF THE CASE

1. Complainants Mario G. Ilagan Jr., Efren Benavides, Allan Dogon,

Zacarias Cortes, Jr., Louie B. Pader, Maximo Rombano, Jr., Gerry E
Troyo, Gabriel D. Dometrio and Jerson B. Bartolay are skilled employees
of Betonbau Phil., Inc. and members of the Obrero Filipino Beton Bau
Chapter.
 2. Repondent Betonbau on the other hand, is a domestic
Corporation duly organized and existing under Philippine Laws engaged
is the Construction business.

3. Likewise, respondents Karl J. Steiner, Mamerto D. Jayco, and

Arlene A. Arcaya are the General Manager, Vice President for Finance
and Admin, and Head of Human Resources, respectively, of Betonbau
Phil., Inc.

4. Compalinants are active members of Obrero Filipino Betonbau

Chapter. Said organization is currently seeking approval of their petition
for certification election filed before the Department of Labor and
Employment (“DOLE” for brevity), Regional Branch No. IV, Calamba City
Furthermore, said organization has been simultaneously filing labor
complaints at the National Conciliation Mediation Board (“NCMB” for
brevity), Regional Branch No. IV, Calamba City.

5. On February 2012, the onset of the filing of the said petition, the
complainants filed in bulk leave of absences which affected the
operations of the company. On the average, hearings are set every two
weeks for each government agency or a total of four hearings in a month.

6. From February to May 2012, the complainants violated several

company policies which the company, as a sign of good faith, leniently
allowed and forgave. Some of the policies mentioned above include (a)
late submission of leave of absence form (employees are required to
submit these 3 days prior their actual leave), failure to secure approval of
leave of absence from direct supervisor, and violation memoranda dated
April 17, 2012 and April 19, 2012 issued by the management requiring
employees to report to work instead of taking a leave of absence because
of the need of the company to resume work after the long vacation
brought by the Holy Week. Said memoranda are attached herewith as
Annex “A” and “B”, respectively.

7. Notably, despite the insubordination committed by the

complainant the Respondent company chose not to impose disciplinary
actions against.

8. On June 21, 2012 the Respondent company issued a memo

requiring the complainants to report to work instead of granting their leave
of absence. Said request for leave of absence was done simultaneously
and in bulk because it was intended for staging a rally before the DOLE.
Said memo is attached herewith as Annex “C”
 9. Complainants, however, defied the said order and pushed
through with their plan from picketing in front of DOLE. Due to said
actions by the complainants, the company’s operation was paralyzed
causing the latter to incur unwarranted operational expenses.

10. Respondent company, consequently, was left no choice but to

exercise its authority and prerogative in disciplining its employees. In a
memo dated July 2, 2013, the company gave the complainants a seven-
day suspension for Insubordination. Said memo are attached herewith as
Annex “D-1” to “D-9”.

11. Accordingly, on July 25, 2012. the HR Department of Betonbau

Phil., Inc., as an exercise of its Standard Operating Procedure, issued to
the Complainants notices to explain their actions. The Notices to explain
is attached herewith as Annex “E-1” to “E-9”.

12. The company, on July 7, 2012, furthermore, sent memos

through registered mail asking the complainants for an explanation why
they did not sign the memos previously issued to them. The memo dated
July 7, 2012 are attached herewith as Annex “F1” to “F-9”.

ISSUES

WHETHER OR NOT COMPLAINANTS WERE

ILLEGALLY SUSPENDED

WHETHER OR NOT RESPONDENTS KARL J.

STEINER, ET AL., BEING CORPORATE
OFFICERS, SHOULD BE INCLUDED IN THE
CASE AT BAR

DISCUSSION/ARGUEMENTS

The action of the

complainants merit the
valid suspension

13. The complainants were validly suspended for violation the

company’s policy on insubordination. Accordingly, such violation
constitutes serious misconduct.

14. As held in the case of “San-An v. Equator Knights Detective

and Security Agency, Inc.”1, misconduct is improper or wrongful conduct.
It was further held that:

“It is the transgression of some established and

definite rule of action, a forbidden act, a dereliction
of duty, willful in character, and implies wrongful
intent and not mere error of judgment.”

15. The complainants, by refusing to go to work, committed serious

misconduct. Said refusal not only violates the company’s policy but also
placed the work place and other employees’ safety at risk. The services of
the complainants are necessary because they are skilled workers in
charge of the maintenance of ‘safe, quality and time saving work
performance”.

16. Furthermore, the complainants committed willful disobedience

or insubordination by defying the order of the company not to absent
themselves from work.

17. It was held in the case of “Realda vs. New Age Graphics, Inc.” 2,
that willful disobedience is a valid ground for dismissal provided that two
(2) requisites concur:

“a) the employee’s assailed conduct must

have been willful and intentional, the willfulness
being characterized by a wrongful and perverse
attitude; b) the order violated must have been
reasonable, lawful and made known to the
employee and must pertain to the duties which he
had been engaged to discharge.”

18. In the case at bar, clearly the actions of the complainants are
valid grounds for dismissal but the Respondent Company, as an act of
good faith, decided just to suspend them.

19. Likewise, said disobedience was willful as described in the case

of “Lakpue Drug, Inc. vs. Belgas”3 as :

“a wrongful and perverse mental attitude rendering

the employee’s act inconsistent with proper
subordination”

1
G.R. No. 173189, February 13, 2013
2
G.R. No. 192190, April 25, 2012
3
G.R. No. 166379 October 20, 2005
 20. The complainants’ disobedience was willful because they know
that such actions they committed will paralyze the operation of the
business.
21. Due to the actions of the complainants, the company suffered
damages amounting to P 1,273,499.50 because of the delay in the
projects.

22. Consequently, the suspensions of the complainants are valid in

order to instill discipline to the employees and to prevent future violation
of company policies which could affect its usual trade and business.
Furthermore, said suspension was a valid exercise of management
prerogative.

23. According to the case of “The Coca-Cola Export Corporation vs.

Clarita P. Gacayan”4, management prerogative is

“The employer’s right to conduct the affairs of

its business, according to its own discretion and
judgment, is well-recognized. An employer has a
free reign and enjoys wide latitude of discretion to
regulate all aspects of employment, including the
prerogative to instill discipline in its employees and
to impose penalties, including dismissal, upon
erring employees. This is a management
prerogative, where the free will of management to
conduct its own affairs to achieve its purpose
takes form. The only criterion to guide the exercise
of its management prerogative is that the policies,
rules and regulations on work-related activities of
the employees must always be fair and
reasonable and the corresponding penalties, when
prescribed, commensurate to the offense involved
and to the degree of the infraction”

24. Instructive of the above, the penalties imposed upon the

complainants was a valid exercise of management prerogative because it
was fair that the complainants were suspended instead of being
dismissed. Also, such actions by the management were done solely for
the purpose of maintaining its control and preserving its interest.

Respondents Karl J.
Steiner et al., being
corporate officers should
4
G.R. No. 149433, December 15, 2010
not be impleaded in the
case at bar

25. Basic is the rule that a corporate officer is not personally liable
for claims of suspended corporate employees unless he acted with
evident malice and bad faith in suspending their employment.

26. A review of the facts obtaining in this case, show that there
was no malice and bad faith on the part of the respondents Karl J. Steiner
et al. Thus, it is submitted that the complaint against them should be
dismissed.

38. In “Kukan Int’l Corp. v. REYES”5:

“While a corporation may exist for any lawful

purpose, the law will regard it as an association of
persons or, in case of two corporations, merge
them into one, when its corporate legal entity is
used as a cloak for fraud or illegality. This is the
doctrine of piercing the veil of corporate fiction.
The doctrine applies only when such corporate
fiction is used to defeat public convenience, justify
wrong, protect fraud, or defend crime, or when it is
made as a shield to confuse the legitimate issues,
or where a corporation is the mere alter ego or
business conduit of a person, or where the
corporation is so organized and controlled and its
affairs are so conducted as to make it merely an
instrumentality, agency, conduit or adjunct of
another corporation.

To disregard the juridical personality of a

corporation, the wrongdoing must be established
clearly and convincingly. It cannot be presumed.”

26. Guided by the above, the case at bar has no cause of action
against the corporate officers impleaded herein.

PRAYER

5
G.R. No. 182729, September 29, 2010
 WHEREFORE, in light of the foregoing, it is respectfully prayed to
the his Honorable Office to render judgment dismissing the complaint for
lack of merit.

Other reliefs, just and equitable under the premises are likewise
prayed for.

Pasig City for San Pablo City, July 24, 2013

JIMENEZ LAW OFFICE

Counsel for the Respondents
Suite 1902-A East Tower, Philippine
Stock Exchange Center, Exchange
Road, Ortigas Center, Pasig City

By:

DANIELITO D. JIMENEZ
MCLE COC No. III-0018872/9.23.10
PTR NO. 5640101/01.17.2012/Pasig
IBP LRN NO. 03229/QC
ROLL NO. 43303

NOTICE OF HEARING AND COPY FURNISHED

--------------------------

HON. MELCHISEDEK A. GUAN

Labor Arbiter, SRAB-IV
MARIO G. ILAGAN, et al.
Complainants
San Vicente, Sto. Tomas, Batangas

Please be notified that undersigned counsel is submitting the foregoing

motion for consideration and approval of the Hon. Arbiter immediately
upon receipt hereof.

DANIELITO D. JIMENEZ