Department of Labor and Employment" NATIONAL LABOR RELATIONS COMMISSION Cagayan De Oro City Republic of the Philippines 24 ai 4 EIGHT DIVISION ERMELO P. BITALAC, ET AL., Complainants-Appellants, > versus - NLRC CASE NO. MAC-09-017092-2021 REMANDED-09-2023 (RAB XII-12-00317-2020) DOLE PHILIPPINES, INC, ET AL., Respondents-Appellees. x MOTION FOR RECONSIDERATION COMPLAINANTS-APPELLANTS, by counsel, in the above captioned case, unto this Honorable Commission, most respectfully move for the reconsideration of the Decision promulgated on December 18, 2023, which denied complainants-appellants’ appeal (after having been remanded by the Honorable Court of Appeals with an order to give due course to the appeal and to resolve the case on the merits with dispatch), a copy of which was received by the undersigned counsel on February 08, 2024, and in support hereof, most respectfully state the following: GROUNDS: (A). THE HONORABLE COMMISSION SERIOUSLY ERRED IN NOT HOLDING THAT THE RETRENCHMENT OF REGULAR WORKERS AND UNION MEMBERS AND THE RETENTION OF JUNIOR WORKERS (LESS SENIOR WORKERS) AND NON-REGULAR WORKERS PERFORMING THE SAME FUNCTIONS (SPECIFICALLY WORKERS PROVIDED BY SERVICES COOPERATIVES OR CONTRACTORS), RENDERED SAID RETRENCHMENT INVALID, HENCE, RENDERING COMPLAINANTS- APPELLANT'S DISMISSAL AS ILLEGAL. x(B). THE HONORABLE COMMISSION SERIOUSLY ERRED IN DECLARING THAT COMPLAINANTS-APPELLANTS’ RETRENCHMENT VALID WHERE THE RESPONDENT- APPELLEE EMPLOYER FAILED TO OBSERVE THE VERY CRITERIA IT ALLEGEDLY USED TO DETERMINE WHO WOULD BE RETRENCHED. (C). THE HONORABLE COMMISSION SERIOUSLY ERRED IN NOT FINDING THAT THE RESPONDENT-APPELLEE EMPLOYER FAILED TO PROVE THE EXISTENCE OF SUBSTANTIAL LOSSES TO JUSTIFY ITS RETRENCHMENT PROGRAM. (D). THE HONORABLE COMMISSION SERIOUSLY ERRED IN NOT DECLARING RESPONDENTS-APPELLEES GUILTY OF UNFAIR LABOR PRACTICE, DISCUSSION: (A). THE HONORABLE COMMISSION SERIOUSLY ERRED IN NOT HOLDING THAT THE RETRENCHMENT OF REGULAR WORKERS AND UNION MEMBERS AND THE RETENTION OF JUNIOR WORKERS (LESS SENIOR WORKERS) AND NON-REGULAR WORKERS PERFORMING THE SAME FUNCTIONS (SPECIFICALLY WORKERS PROVIDED BY SERVICES COOPERATIVES OR CONTRACTORS), RENDERED THE RETRENCHMENT INVALID, HENCE, RENDERING COMPLAINANTS-APPELLANT’S DISMISSAL AS ILLEGAL. 1. With all due respect, complainants-appellants humbly submit that the Honorable Commission seriously erred in not holding that the retrenchment of regular workers and union members and the retention of junior workers (less senior workers) and non-regular workers performing the same functions (specifically workers provided by services cooperatives or contractors), violates the requirement of a fair and reasonable criteria in the selection of who should be retrenched that rendered the retrenchment invalid, hence, rendering complainants-appellants’ dismissal as illegal, but held that it is an exercise of management prerogative. 2, Indeed, as borne by the records, specifically in complainants-appellants’ Position Paper and subsequent pleadings, complainants-appellants asserted and able to established that there was no fair and reasonable criteria observed in the selection of workers to be retrenched or to be retained, as and] senior wi in e functio) re hile hi ho are r cena and_union members, were dismi ae Thus, in their Joint- Affidavit, herein complainants-appellants testified as follows:* “3. That our aforesaid termination from employment due to alleged “retrenchment” was effected without observance of fair and reasonable criteria in carrying out the retrenchment program, such as 1) less preferred status (as in the case of e 2) efficiency rating, 3) seniority, and 4) proof of claimed financial losses’, eS. less orkers are perf same functions were retained®, Such that: a) In the case of complainant Ermelo P. Bitalac as Evaporator Operator/Machine Operator in the Processing Department, particularly at Clarified Pine Apple Juice Concentrate (CPAJ) Section, who started working at Dolefil on May 8, 2006 was terminated, while other junior workers trained by him were retained, namely: Ryan Dante (hired on July 5, 2017); Don Dionson (hired on May 27, 2017); Marcial Alingaro (hired on August 3, 2017); Chandee Michael Agayan (hired on March 2011); and workers supplied by Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC) were also retained, namely: Darwin Castro (hired on 2017) and Richard Yuro (hired on 2017). b) In the case of complainant Joemil A. Paubsanon as Hot Water Bath Operator and Retort Operator in the Plastic Container and Food Preparation of the Cannery Operations, who ! See third paragraph, page 16, Decision dated December 18, 2023. ® See third paragraph, page 1, in relation to par. 1, page 3, Complainants’ Position Paper dated March 20, 2021 # Ibid.; Also, see pages 2-5, Complainants* Consolidated Reply dated May 20, 2021 * See par. 3, pages 2-5, Complainants’ Joint Affidavit (Annex “A", Complainants’ Position Paper): ‘so, see pages 2-5, Complainants” Consolidated Reply dated May 20, 2021. “See Oriental Petroleum and Minerals Corp. v. Fuentes, 509 Phil, 684 (2005) [Per J. Division}. “ See Pictures showing the presence of Coop Workers which wore attached and marked as Annexes “A-1" to “A-3”, Complainants’ Jolut Affidavit (Annex “AY, Complainants? Position Paper) forming an integral part hereof, ‘nga, Second 3started working at Dolefil on February 11, 2002, was terminated, while other junior workers were retained, namely: Ruel Ligeno (hired on March 11, 2005); Delfin Joremo (hired on Dec. 19, 2018); Eduardo Abordo (hired on July 19, 2005); and Rolly Peteros hired on June 2019). c) In the case of complainant Benjamin T. Comeros as Mechanic at Dole Agro Tire Shop who started working at Dolefil on October 11, 1982 was terminated after having rendered 38 years of service, while other much junior workers trained by him, namely: Ananias Perales (hired on July 20, 2019), and Enrique Lawanan (hired on August 16, 2012) who were supplied by Fortitude Ability Resilience in Business Multi-Purpose Cooperative (FARB-MPC); and Dennis D. Dellomes who was supplied by Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC), were all retained. d) In the case of complainant Glenn_C, Cabarubias as Head Mechanic at Agri-Equipment Maintenance (AEM) Department - Industrial Division, who started working at Dolefil on October 08, 2007, was terminated from employment while other much junior co-workers trained by him were retained namely: Jessie Pelonita, Dante Panto, Deo Carlo Florentino, John Micahel Abiner, John Mark Canapit, Lorenzo Indiola, Archie Mogino, Velroid Bergado and Leomer Bawek; and coop workers supplied by Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC), namely: Antonio Callao, Leo Pedrosa, Skinner Senarillos, Janvier Naval, Michael Manlisic and Ruel Pafio. e) In the case of complainant Warren Anthony Primor as Mechanic at Dole Agro-Equipment Maintenance, LPP Section, who started working at Dolefil on June 24, 2013, was terminated while two other junior regular co-workers were retained namely: Clint john Nalugon (hired on June 8, 2016), and Gerson Mangpang (hired on June 1, 2016; as well as four other coop workers, namely: Ivan Librando, Allan Taala, Audy Reyno and Wilfredo Tecson who were supplied by Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC) were likewise retained. f) __ In the case of complainant Sonimar B. Dogomeo as 1s Class Mechanic at Dole Agro-Equipment Maintenance, Lube Section, who started working at Dolefil on June 10, 2003 and a regular employee was terminated, while a junior co-regular employee with the name of Ibarra Lascufia (hired on May 15, 2015); Jeffrey Linehan, a coop worker supplied by Fortitude 4Ability Resilience in Business Multi-Purpose Cooperative (FARB- MPC); and 3 other coop workers supplied by Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC), namely: Arnold Lascufia, Albert Robles, and Derelito Escobal, were retained. g) In the case of complainant Ronnie C. Madas as Head Mechanic under Agri-Equipment Maintenance (AEM) Engineering Service Division, who started working at Dolefil on November 23, 1991, with his 4 other regular co-workers were terminated, while workers supplied by Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC) were retained, namely: Edgar Serano (hired on March2011) and Manny Escuadro (hired on April 18, 2017, h)__ Inthe case of complainant Eddie C, Deocampo, Jr., as Heavy Equipment Operator, Land Preparation of Agri- Department, who became regular on December 15, 2003, he was terminated, while his junior co-workers, namely: Rey Abian (hired on 2017), Dave Eva (hired on 2015), Rey Tainson (hired on 2018), and Marvin Gador (hired on 2017), were alll retained. i) In the case of complainant Jonathan B, Batilo as Blender at Dole Processing Department, who started working at Dolefil on January 5, 2015, was terminated while five (5) other junior regular co-workers, namely: Jeffrey Cumaling, Catalino Castillano, Jerwin Enclonar, Ernesto Manatad, Jr., Ronnie Panhorilla; and two coop workers, namely: Risty Chan Feca and Kurt Draven Berreros, who were supplied by Cannery Multi- Purpose Cooperative (CAMPCO), were retained, j) In the case of complainant Dave V. Calauod, as Mechanic under Agri-Equipment Maintenance (AEM) Engineering - Service Division, who started working at Dolefil as_ contractual under UEWMPC on January 2005 and was regularized by Dolefil on August 2011, he was terminated, and was replaced by Ariel A. Acosta, a much junior employee. Coop workers supplied by Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC) were retained such as Welbert Comeros (hired on May 2018); Brix Dealca (hired on August 2018); Arnel Duran (hired on April 2014); Arloyd Gregorio (hired on March 2018); Meljan Mangubat (hired on 2018); Jairo Matullano (hired on March 2014); Ariel Palcone (hired on February 2017); and Ralph Podiotan (hired on February 2017). k) In the case of complainant Redgid Capuz as Mechanic under Agri-Equipment Maintenance (AEM) Engineering Service Division, Harvesting Section, who started working at Dolefil on May 3, 1993; complainant Dixter B. Calunsag who started 5working on July 01, 2012; and Fil John P. Lumna_as Mechanic who started working on June 3, 2013, who are regular wokers were all terminated, while coop workers supplied by Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC), such as Ramil Mangubat (hired on 2011); Silverio Tala (hired on 2006); Charlie Taala (hired on 2015); Warlito Oclarit (hired on 2018); Feliciano Vesade (hired on 2017); and Mark John Laano (hired on 2012), were all retained. )D In the case of complainant Crisanto G. Monserat as Machine Operator of Fruit Receiving Preparation and Cook Room, who started working on January 17, 2005, he was terminated, while his junior co-workers, namely: Jennelyn Paquierda, Shiela Mae Porcadilla, Maricela Gagnao, Louie Ledesma, Jonathan Bajade, Jimmy Galgo, Jade Alejaga, Elmer Sabornedo, .Ricky Porcadilla, Evaageline Ortes, Irin Bisnar, and many coop workers were all retained. m) In the case of complainant Ariel C. Espina as Heavy Equipment Operator, Land Preparation of Agri-Equipment Maintenance Department, who started working on April 22, 2013, he was terminated, while his junior co-worker in the name of Roque Lanaque, and a coop worker in the name of Marlon Tacan (hired on Oct, 4, 2019) who was supplied by Adventurers Multi- Purpose Cooperative (AMCOOP), were retained.” (Underscoring and emphasis supplied). 3. It is worth to stress that the foregoing allegations in the immediately preceding paragraph were never disputed. In fact, no less than the herein respondents-appellees made a judicial admission when they admitted in their Reply to complainants’ Position Paper. as follows:7 "39. Moreover, Dolefil’ 's decision to retain workers is not ULP. It is clearly an exercise by the employer of its business judgment and its managerial prerogatives.” (Underscoring and emphasis supplied). 4. Clearly, in effecting their retrenchment program, herein respondents-appellees decided to retain workers provided by service providers and less seniors, which we submit, is a violation of the requirement for a valid retrenchment to observe a fair and reasonable criteria in the selection of who should be retrenched from _am. loyees. It is submitted that ‘ision is ” See par. 39, page 18, Respondents-Appellees’ Dolefil and Yiannakis’ Reply dated May 14, 2021,whimsical, indicative of bad faith, from a clear vilation of right to due process Thus, in the case of Capitol Wireless, Inc. vs. Confesor,2 where the Supreme Court ruled, that: “Petitioner misses the point. x0 _xxx 200, In Asiaworld we laid down the principle that in selecting the employees to be dismissed a fair and reasonable criteria must be used, such as but not limited to: (a) less preferred status (e.g., temporary employee), (b) efficiency, and seniority. Although the case of Asiaworld dealt with retrenchment, still the principle is applicable to the present case because in effecting the dismissal petitioner had to select from among its employees.” 5. As emphasized above, it is notable that complainants- appellants are more senior than many other workers who were retained®, It is worth to stress that seniority, along with efficiency rating and less-preferred status, was considered as a crucial facet of a fair and reasonable criterion for effecting retrenchment"; and it likewise been categorically held that a “[rletrenchment scheme without taking seniority into account rendered the retrenchment invalid". Thus, in the most recent case of La Consolacion College of Manila, et al., vs. Virginia Pascua, M.D.‘, is very instructive, when the Supreme Court declared as follows: “La Consolacion's failure was non-compliance with the third substantive requisite of using fair and reasonable criteria that considered the status and seniority of the retrenched employee. Tati =] rucial 264 SCRA 68, p.72 » See par. 3, pages 2-5, Complainants’ Joint Affidavit (Annex “A”, Complainants’ Position Paper) * See also Villenav. National Labor Relations Commission, 271 Phil. 718 (1991) [Per J. Grino-Aquino, "GR. No. 214744, promulgated on March 14, 2018. * 236 Phil. 236 (1987) [Per J. Guttierez, Jr, Third Division). "See also Villena » National Labor Relations Commission, 271 Phil, 718 (1991) [Per J. Grino-Aquino, "615 Phil. 33 (2009) [Per J, Peralta, Third Division). ?r] i iori render ‘etrenchment i id": 15 Records do not show any criterion adopted or used by petitioner in dismissing respondent. ondent w: i without considerii er jority. R it me_wi niority ii n alid. Whi nt was th employee among the 7 employees in_petitioner's personnel department, she was retrenched while her = juni ither retained in the Personnel Department or were was no showing that respondent was offered to be transferred to other positions.*6 (Citations omitted) In Philippine Tuberculosis Society, Inc. v, National Labor Union,7 this Court quoted with approval the following discussion by the National Labor Relations Commi: since_he would be paying the newcomer a I Hs simp) unconscionable f th ei nurial rights. In Villena vs. NERC, 193 SCRA 686. February 7, 1991, the Supreme Court considered the seniority factor an important ingredient for the validity of a retrenchment program. According to the Court, the following legal procedure should be observed for a retrenchment to be valid: (a) one- month prior notice to the employee as prescribed by Article 282 of the Labor Code; and b) use of a fair and reasonable criteria in carrying out the retrenchment program, such as 1) less preferred status (as in the 'S Id. at 52, cliiny Philippine Tuberculosis Soctety Inc. v. NLRC, 386 Phil. 63, 72 (1998) [Per J. Mendoza, Second Division], "Id. at $2, "356 Phil. 63 (1998) [Per J. Mendoza, Second Divisioscase of temporary employees) 2) efficiency rating, 3) seniority, and 4) proof of claimed financial losses.1®"(Underscoring and emphasis supplied). 6. Thus, in consideration of the foregoing, it is complainants- appellants submission that the Honorable Commission seriously erred and committed grave abuse of discretion amounting to lack and/or excess of jurisdiction in declaring, as follows, to wit: (a) “failure to include seniority as criterion in selecting the employees to be retrenched would not render the retrenchment invalid so long as the employer ‘sufficiently met the standards of fairness and reason in the implantation of its retrenchment program’? (which employer in this case failed to comply as shall further be discussed hereunder); (b) “the mere hiring of employees from cooperatives cannot, by itself, be evidence of bad faith or circumvention of complainants’ security of tenure”, but is “an exercise of management prerogative’20; and (c) “contracting out of services is an exercise of business judgment or management prerogative”? (being in contravention with the provision of Article 259 (c) of the Labor Code, as amended). (B). THE HONORABLE COMMISSION SERIOUSLY ERRED IN DECLARING THAT COMPLAINANTS-APPELLANTS’ RETRENCHMENT VALID WHERE THE EMPLOYER FAILED TO OBSERVE THE VERY CRITERIA IT ALLEGEDLY USED TO DETERMINE WHO WOULD BE RETRENCHED. 7. Intheir Answer to complainants-appellants’ Memorandum of Appeal, while herein respondents-appellees Dolefil and Yiannakis through its HR- C & B, Payroll and Employee Services Manager, who allegedly has custody of the attendance and 201 Files of all the employees, testified that the criteria for the selection of the employees to be retrenched, are the following?: (1) absenteeism, or record of disciplinary action, or efficiency and work attitude, (2) work efficiency, (3) poor performance, (4) the margin of contribution of the employee to the income of the company as compared to the salary, and pursuant to "Id, at 72, See also Oriental Petroleum and Minerals Corp. v. Fuentes, $09 Phil, 684 (2005) [Per J. Tinga, Second Division). "See last paragraph, page 15, Decision dated December 18, 2023. 2 See third paragraph, page 16, Decision dated December 18, 2023. © See fourth paragraph, page 16, Decision dated December 18, 2023. ® See paragraphs 53 to 56, pages 22-23, Answer to Memorandum of Appeal dated July 8, 2021. » See par. 59, pag 24, Answer to Memorandum of Appeal dated July 8, 2021; Also, see pars 18, page 11, Respondents Dolefil and Yiannakis" Reply dated 14 May 2021. 9the said criteria complainants-appellants in this case, were selected for retrenchment since they received the lowest rankings’, 8. The records reveal, however, that respondents-appellees themselves, did not follow and abide by the aforesaid criteria, as shall be shown hereunder, to wit: Firstly. Indeed, while respondents-appellees attached an Excel Sheet showing the purported summary of notice of charges to complainants-appellants?5, which instances were allegedly considered in selecting herein complainants-appellants for retrenchment?*, the same document showed that the following complainants-appellants, do not have any charges, and have no derogatory records, yet they were selected for retrenchment, to wit: (a) Batilo, Jonathan (b) Dogomeo, Sonimar (©) Calauod, Dave (4) Primor, Warren (e) Espina, Ariel (Q — Lumna, Fil John and (e) Calunsag, Dixter Secondly, While respondents-appellees claimed that, allegedly, pursuant to the above criteria, herein complainants-appellants were selected for retrenchment since they received the lowest ranking’, the recor rei showing of evaluation and analysis of their more than 6,800 regular workers ondent Dol in order to justi inants-appellants’ inclusion of the workers to be retrenched, not to mention the more than thousands of workers provided by cooperatives such as Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC), Cannery Multi-Purpose Cooperative (CAMPCO), Adventurers Multi- Purpose Cooperative (AMCOOP), Fortitude Ability Resilience in Business Multi-Purpose Cooperative (FARB-MPC)?8, and less senior co- workers, performing the same functions, but were retained’, as specified in complainants-appellants Joint-Affidavit, and as elucidated above. ™ Also, see paragraphs 62-67, pages 35-37, Respondents Dole Philippines, Inc. and Nicholas Yiannakis' Position Paper. * See Excel Sheet (Annex “Ramirez-I") of the Affidavit of Raquel J. Ramirez (Annex “S-A™, Respondents Dolefil and Viannakis’ Position Paper dated March 30, 2021. * See par. 7, page 1, Affidavit of Raquel J. Ramirez (Annex “S-A", Respondents Dolefil and Yiannakis' Reply dated 14 May 2021; Also, see par. 4, page 12, Respondents Dolefil and Yiannaki Reply dated 14 May 2021 * See par. 5, page 6, Com * See par. 3, page 2, Compl: * Joint AMidavit (Annex “A", Complainants’ Position Paper). ants’ Joint Affidavit (Annex “A”, Complainants’ Position Paper). 109. Thus, it is humbly submitted that for failure of the respondents-appellees to prove that they have complied with the criteria they used in determining who would be retrenched and who would be retained, coupled with its non-observance of the criterion of “seniority” and “preferred status”, these circumstances rendered their retrenchment program as invalid, and consequently, the dismissal of herein complainants-appellants who were affected thereby was illegal. (C). THE HONORABLE COMMISSION SERIOUSLY ERRED IN NOT FINDING THAT THE RESPONDENT-APPELLEE EMPLOYER FAILED TO PROVE THE EXISTENCE OF SUBSTANTIAL LOSSES TO JUSTIFY ITS RETRENCHMENT PROGRAM. RESPONDENTS-APPELLEES’ JUDICIAL ADMISSION THAT THE SUBMITTED AUDITED FINANCIAL STATEMENTS (AFS) “BY THEMSELVES DO NOT 'HE TRUE FIN, POSITION )LEFIL’S P ION FOR THESE PERIODS AS THEY ARE CONSOLIDATED FOR ALL OF THE CORPORATIONS’ DIVISIONS THROUGHOUT THE COUNTRY’, AND “THIS IS WHY DOLEFIL HAD TO LATER SPECIALLY ENGAGE ITS EXTERNAL AUDITORS TO DISAGGREGATE SAID AFS TO CLEARLY ILLUSTRATE WHICH PORTION OF THE ASSETS. LIABILITIES, OR COSTS ARE ATTRIBUTABLE TO DOLEFIL- POLOMOLOK DIVISION RELATIVE TO THE FIGURES ATTRIBUTABLE TO THE CORPORATION AS A WHOLE’31, AND THAT THE REPORT OF ACTUAL FINDINGS BY NAVARRO & AMPER DATED JANUARY 11, 2022 EXPRESSLY STATED THAT THE PROCEDURES UNDERTAKEN “DO NOT CONSTITUTE * See par. 9, page 3, Second Supplemental Answer With Motion to Admit Additional Evidence dated August 04, 2023. "Ibid, FeyEITHER AN AUDIT OR A REVIEW MADE IN_ACCORDANCE WITH PHILIPPINES STANDARDS ON ___AUDITING __OR PHILIPPINE STANDARDS REVIEW ENGAGEMENTS, XXX. THIS REPORT RELATES ONLY TO THE ACCOUNTS AND ITEMS SPECIFIED ABOVE AND DO NOT EXTEND TO ANY FINANCIAL STATEMENTS OF THE DOLE PHILIPPINES, INC. TAKEN AS A WHOLE”3?, THEREBY RENDERING THE ALLEGED LOSS OF PHP352,250.00 HIGHLY DUBIOUS AND QUESTIONABLE. THE FACT REMAINED THAT RESPONDENT-APPELLEE DOLEFIL JUDICIALLY ADMITTED TO HAVE REGISTERED NET PROFITS OF P99,085,00, P79,294,00, AND 50,973,00.00 IN 2018, 2019 AND 2020, RESPECTIVELY, PRIOR TO THE IMPLEMENTATION OF THEIR RETRENCHMENT PROGRAM33, THUS, WHILE RESPONDENTS-APPELLEES PROFITS DECLINED IN 2018, 2019, 2020, THEY MISERABLY FAILED TO PROVE SUBSTANTIAL LOSSES. 10. At this juncture, it is worth to stress that respondents- appellees, contrary to the finding of the Honorable Commission, tailed to prove the existence of substantial losses. respondents-appellees’ judicial admission that the submitted Audited Financial Statements (AFS) “by themselves do not accurately reflect the true financial position of Dolefil’s Polomolok Division for these periods as they are consolidated for all of the Corporation’s Divisions throughout the country”3s, and “[T]his is why Dolefil had to later specially engage its external auditors to disaggregate said AFS to clearly illustrate which portion of the assets, liabilities, or costs are attributable to Dolefil-Polomolok Division relative to the figures attributable to the Corporation as a whole’S¢; and that the Report of Actual Findings by Navarro & Amper dated January 11, 2022 expressly stated that the procedures undertaken “do not constitute either ® See par. 13, pages 5-7, Second Supplemental Answer With Motion to Admit Additional Evidence dated August 04, 2023 ® See par. 18.9, page 15, Second Supplemental Answer With Motion to Admit Additional Evidence dated August 04, 2023. % See pages 13-14, December 18, 2023. » See par. 9, page 3, Second Supplemental Answer Wh Motion to Admit Addional Evidence dated ungust 04, 2023, 2an audit or a review made in accordance with Philippine Standards on Auditing or Philippine Standards on Review Engagements, we do not express an opinion or any form of assurance with respect to any matters on the financial information taken as a whole as a result of performing the gareed upo procedure.” 220 “[T]his report relates only to the accounts and item. xtend to ial statement e Dole Philippines, in taken as a “37, rendered the alleged loss of P352,250.00 highly dubious and questionable. The fact remained that respondent-appellee Dolefil judicially admitted to have registered net profits of P99,085,00, P79,294,00, and 50,973,00.00 IN 2018, 2019 AND 2020, respectively, prior to the implementation of the retrenchment program*®, Thus, while respondents-appellees profits declined in 2018, 2019 and 2020, they miserably failed to prove substantial losses. Clearly, the Honorable Commission seriously erred and committed grave abuse of discretion in not finding herein respondents-appellees to have failed to prove the existence of substantial losses, rendering its retrenchment program invalid. (D), THE HONORABLE COMMISSION SERIOUSLY ERRED IN NOT DECLARING RESPONDENTS-APPELLEES GUILTY OF UNFAIR LABOR PRACTICE (ULP). 11. It is humbly submitted that the Honorable Commission seriously erred in not declaring herein respondents-appellees guilty of unfair labor practice (ULP). In the case of San Miguel Corporation vs. National Labor Relations Commission;? the Supreme Court declared: “In Manila Pencil Co. vs. CIR“, this Court had occasion to observe that even where the business conditions justified a lay-off of employees, unfair labor i: itted i iscrimin: dismissed. This was despite the valid excuse given by the Manila Pencil Company that the dismissal of the employees was due to the reduction of the company’s dollar allocations for importation and that both union members and non- union members were laid-off. The Court through justice Makalintal, rebuffed the petitioner Company and said:*t * See par. 13, pages 5-7, Second Supplemental Answer With Motion to Admit Additional Evidence doled August 04, 2023. See par. 18.9, dated August 04. 2023. 285 SCRA 133, p.ldl “14 SCRA 955 [1965] " 9.958 15, Second Supplemental Answer With Motion to Admit Additional Evidence B“sxx The explanation, however, does not by any means account for the permanent dismissal of five of the unionists, where it does not appear that the non-unionists were similarly dismissed. XXX XK XXX And the discrimination shown by the Company strongly is confirmed by the fact that during the period from October 1958 to August 17, 1959 it hired fifteen to twenty new employees and ten apprentices. It says these employees were for its new lead factory, but is (sic) not shown that _the five who had been permanently i ren i ork in that new factory,’ A similar ruling was made by this Court in People’s Bank and Trust Co. v. People’s Bank and Trust Co. Employees Union*? involving the lay-off by a bank of sixty- five (65) employees who were active union members allegedly by reason of retrenchment. The Court likewise found the employer in that case to have committed ULP in effecting the discharges. This Court was more emphatic however in Bataan Shipyard and Engineering Co,, Inc. v. NLRC, et al “Under the circumstances obtaining in this case, We are inclined to believe that the company had indeed been discriminatory in selecting the employees who were to be retrenched. All of the retrenched employees are officers and members of the NAFLU. The record of the case is bereft of any satisfactory explanation from the Company regarding this situation, As such, the action taken by the firm becomes highly suspect. It leads Us to conclude that the firm had been discriminating against membership in the NAFLU, an exercise of their right of self-organization. Under Article 49 (now Art. 2: 69 SCRA 10 [1976] * 161 SCRA 271 [1988).such interference is considered an act of unfair labor practice on the part of the Company xxx.” (Italics ours). It matters not that the cause of termination in the above cited cases was retrenchment while that in the instant case was redundancy. The important fact is that in all of these cases, including the one at bar, all of the dismissed employees were officers and members of their respective unions, and their employers failed to give satisfactory explanation as to why this group of employees was singled out.” (Underscoring and emphasis supplied). 12. In the instant case, respondents-appellees Dolefil and Yiannakis claimed that they are not guilty of unfair labor practice as they have not committed any of the 9 acts under Article 259 [248] of the Labor Code“, Specifically, herein respondents-appellees claimed that they did not in any manner, interfere with, restrain, or coerce an employee in the exercise of their right to self-organization; that they did engage any tractor rnal work f¢ carry th ni i formed. ion members to ij re with the employees’ rij 0 _self-organi: 145, ci themselves. As elucidated above, herein herein complainants-ppellants’ termination from employment due to alleged “retrenchment” was effected without observance of fair and reasonable criteria in carrying out the retrenchment program, particularly the less preferred uch as Unified Engineering Workers Multi-Purpose Cooperative | © UEWMPC, Cannery Multi-Purpose Cooperative (CAMPCO), Adventurers Multi-Purpose Cooperative (AMCOOP), Fortitude Ability Resilience in Business Multi- Purpose Cooperative (FARB-MPC)**, who are non-union members, as less iors work formi) retained*”, herei mplainants-a re |. How can respondents-appellees Dolefil and Yoiannakis justifiably claim that they did not engage any contractor or external work forces to under carry the services and functions performed by union members to interfere with the employees’ right to self- “ See paragraphs 79-83, pages 46-48, Respondents Dole Philippines, Inc. and Nicholas Viannakis’ Position Paper. “See par. 80, page 47, Respondents Dolefil Yiannakis’ Position Paper. “See par. 8, page 6, Complainants* Joint Affidavit attached as Annex “A, Complainants’ Postion Paper. “7 See par. 3, page 2, Complainants’ Joint Affidavit attached as Annex “A°, Complainants’ Position Paper. 15organization*®? The fact is, herein complainants-appellants were out of job and ceased to be members of respondent-appellee union, while workers provided by service providers as mentioned above were retained and not been terminated from employment. Simply put, respondents-appellees Dolefil and Yiannakis, wittingly or unwittingly, had unduly interfered in the exercise by complainants-appellants of their right to self-organization, hence, guilty of unfair labor practice. 13. Likewise, respondent-appellee union is also guilty of unfair labor practice, which the Labor Arbiter seriously erred when she failed to consider herein complainants-appellants’ allegations supported by evidence. The respondent-appellee union’s argument that the instant complaint for unfair labor practice against it has no factual and legal basis‘, is unmeritorious, as shalll be elucidated hereunder: Firstly, while herein respondent-appellee union admitted that it was informed through a Memo dated 10 August 2020 that respondent- appellee Dolefil was embarking on a retrenchment program to be implemented one month from the said memo; and it also admitted that it became aware of the criteria for the selection of the employees for said retrenchment program®?, which it claimed to have unfortunately included herein complaainants-appellants effective 18 October 202051, ever_question: iteria_imposed_a: inclusi in_complainants-: hho are regular workers and uni mbers to t) ill be retrenched, while aware that thousands were retained who are non-regular workers and are not members of the union as they were supplied by cooperatives such as Unified Engineering Workers Multi-Purpose Cooperative (UEWMPC), Cannery Multi-Purpose Cooperative (CAMPCO), Adventurers Multi- Purpose Cooperative (AMCOOP), Fortitude Ability Resilience in Business Multi-Purpose Cooperative (FARB-MPC)52, which are mere manpower providers of respondent-appellee Dolefil. In fact respondent-appellee Dolefil was ordered by the Department of Labor and Employment (DOLE) to regularized 10,000 workers but, been able to regularized sometime in 2018 around 4,800 workers*, thus, are far less seniors than herein complainants-appellants. Why then terminate herein complainants- appellants who are senior workers? , page 47, Respondents Dolefil and Yiannakis* Position Paper. ‘5, Respondents LEAD.PH and Gales' Position Paper. ® See par. 9, page 4, Respondent LEAD.PH and Gales’ Position Paper (Annex “J-2" hereof. 5 See par. 10, page 4, Respondent LEAD.PH and Gales* Position Paper (Annex “J-2” hereof). © See par. 5, page 6, Complainants’ Joint Affidavit attached as (Annex “A”, Complainants’ Position Paper (Annex “J” hereof). ® See par. 7, page 6, Respondents Dolefil and Yiannakis’ Position Paper (Annex “J-1” hereof).Secondly, herein complainants-appellants are members of herein respondent-appellee union who did not support the Resolutions by its Board of Directors specifically for - “Non-holding of election for Directors and Officers due to COVID-19 pandemic and for current directors and officers to continue holding their positions co-terminus with the 2020- 2025 CBA"; “for early CBA negotiations and ratification, and early effectivity for the new CB”, and “Non-support by the members for any petition for certification election at Dolefil’S*, These facts reveal more than what is apparent - there is a grand design to deny herein complainants-appellants and their other co-workers the opportunity to effectively exercise their rights to self-organization during the “freedom period” - an act with amounts to interference in the exercise by the workers of their right to self-organization, proscribed as unfair labor practice under Article 259 [248] (a) of the Labor Code, as amended. the subject Union Resolutions, among whom, are herein complainants-appellants. Thus, contrary to the respondent-appelle union's submission, its leadership is guilty of illegal dismissal and unfair labor practice by conspiracy. Thirdly, while through its President Gales, respondent-appellee union claimed that they took no part whatsoever in the termination of herein complainants-appellants’ employment with herein respondent- appellee Dolefil through retrenchment, the series of events leading to the termination of herein complainants-appellants, as well as other attending circumstances as elucidated above, however, clearly point to the fact that respondent-appellee union assented, if not conspired with respondent-appellee Dolefil to get rid of herein complainants-appellants who did not support, and in fact critical to respondent-appellee union's leadership, as they did not support the crucial resolutions to wit: “Non- holding of election for Directors and Officers due to COVID-19 pandemic and for current directors and officers to continue holding their positions co-terminus with the 2020-2025 CBA”; "for early CBA negotiations and ratification, and early effectivity for the new CB", and “Non-support by the members for any petition for certification election at Dolefil’ ss. Lastly, respondent-appellee union's pretensions that herein complainants-appellants support to the Petition for Certification Election filed by DOLE PHILIPPINES, INC. WORKERS UNION-ALU-TUCP and the Motion for Intervention filed by DOLEFIL EMPLOYEES AND WORKERS * See par. 3.2, page 2, Complainants’ Joint Affidavit (Annex “A’, Complainants’ Position Paper);Also, see par. 2.2, page 4 Complainants’ Position Paper (Annex “J” hereof). “See par. 3.2, page 2, Complainants’ Joint Affidavit (Annex “A*, Complainants’ Position Paper):Also, see par. 5, page 12 Complainants’ Position Paper (Annex “J” hereof) 17UNION-FFW had nothing to do with their retrenchment from respondent-appellee Dolefil, is untrue and unmeritorious. As borne by the records, early on before the freedom period, herein complainants- appellants had been critical of respondent-appellee union's leadership, and did not support the highly irregular and crucial resolutions to wit: “Non-holding of election for Directors and Officers due to COVID-19 pandemic and for current directors and officers to continue holding their positions co-terminus with the 2020-2025 CBA"; “for early CBA negotiations and ratification, and early effectivity for the new CB”, and “Non-support by the members for any petition for certification election at Dolefil’S*, These resolutions were designed so that workers, including herein complainants-appellants cannot effective exercise their rights comes the “freedom period”, and designed to interfere in the workers’ exercise of their right to self-organization. 14. Moreover. it is humbly submitted that unfair labor practice may be committed even if there is valid retrenchment where the manner it is implemented is tainted with grave abuse of discretion, as in the instant case, as respondent-appellee Dolefil failed to observe any fair and reasonable criteria in selecting who shall be retrenched and who shall be retained. Obviously, less senior workers and non-union members who are coop workers were retained, while terminating regular, senior and productive workers, but who simply did not support respondent-appellee union’s whimsical and capricious resolutions mentioned above. 15. It is submitted that while respondents-appellees Dolefil and Yiannakis may valid exercise their right to implement a valid retrenchment program, such right differs from and should not be confused with the manner in which such right is exercised. They cannot just simply select workers to be affected without fair and reasonable criteria. Thus, the Supreme Court was emphatic in Bataan Shipyard and Engineering Co., Inc. v. NLRC, et al.5’, when it declared as follows, to wit: “It is not disputed that the retrenchment undertaken by the Company is valid. However, the manner in which thi ive is exerci inted with abuse of discretion. Labor is a person's means of livelihood. He cannot be deprived of his labor or work without due process of law.5® Retrenchment strikes at the very heart of one’s employment. While the right of an % See par. 5, page 6, Complainants? Joint Affidavit (Annex “A’, Complainants’ Position Paper); Also, see par. 5, page 12 Complainants’ Position Paper (Annex “J” hereof). 7161 ‘SCRA 2H 11988}, p. 278, * Phil. Movie Pictures Workers’ Assoelation vs, Premiere Productions, Inc. 92 Phil. 843 (1953).e ismi lovee eded in a vali rel nt. th iffers manner _in which such right is ercised, It should no ive and abusive since it affects one's person and property.®? Due process of law demands nothing less.” (Underscoring and emphasis supplied). Complainants-appellants hereby re-plead and reiterate by way of reference all other allegations and arguments raised in their verified Joint-Affidavit, Position Paper, Consolidated Reply, _Rejoinder, Memorandum of Appeal and Comment to Answer as well as Supplemental Comment to the Second Supplemental Answer With Motion to Admit Additional Evidence® of respondents-appellees’ Dole Philippines, Inc, and Nicholaos Yiannakis on complainants-appellants’ Memorandum of Appeal, as are relevant and material hereto. PRAYER WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Commission to RECONSIDER Its Decision promulgated on December 18, 2023, and thereafter, GIVE DUE COURSE to the appeal in the instant case, and consequently, REVERSE AND SET ASIDE the Decision rendered by Executive Labor Arbiter Jocelyn A. Vasallo dated May 26, 2021 and ENTER A NEW ONE as follows: 1. DECLARING respondents-appellees guilty of _ illegal dismissal, and consequently, ORDERING respondent-appellee Dolefil to reinstate complainants-appellants to their former position or substantially equivalent position without loss in seniority rights and other benefits and privileges, and to pay them full backwages, inclusive of other CBA benefits or their monetary equivalent, computed from the time compensation was withheld from them, up to the time of their actual reinstatement; 2. DECLARING respondents-appellees guilty of unfair labor practice, and consequently, ORDERING them to cease and desist from further committing unfair labor practice acts; ® De Leon vs. National Labor Relations Commission, 100 SCRA 691. “ Dated August 04, 2023. 193. ORDERING respondents-appellees to jointly and severally pay complainants-appellants’ moral and exemplary damages in such amount depending on Its sound discretion; 4. ORDERING respondents-appellees to jointly and severally pay complainants-appellants’ attorney's fees equivalent to ten percent (10%) of the total monetary awards. All other reliefs and remedies that are just and equitable under the premises are likewise prayed for. Manila for Cagayan De Oro City, February 14, 2024. FFW LEGAL CENTER Counsel for Complainants-Appellants FFW Bldg., 1943 Taft Avenue 1004 Malate, Manila By: . MONTANO (0.1545366/JAN. 08, 2024/MANILA (0. 407858/JAN.08, 2024/ILOILO CITY Roll No. 39955 MCLE Compliance No.VII-00727343/MARCH 28, 2023 Office Telephone Number: (+632) 5219435/5219464 E-mail Address: asm_freeworkers@yahoo.com IBP NO.392394/JAN. 03,2024/AGUSAN DEL SUR ee MCLE Compliance No. VII-0007094/APRIL 14, 2022 Email address: attyjosesonnygmatula@yahoo.com Copy furnished by registered mail: ATTY, ISRAFEL D. FAGELA Reg. Receipt No. c/o PLATON, MARTINES. FLORES, Date: SAN PEDRO, LEANO LAW OFFICES Counsel for Respondent DOLE PHILIPPINES, INC., 206" Floor Tuscan Building, 114 VA Rufino St, Legaspi Village, 1229 Makati City ATTY.ELIUD T. PAILAGAO, JR. Reg. Receipt No. c/o PAILAGAO LAW OFFICE Date: Counsel for Respondent LEAD.PH Door#1-B, Dupoint Arcade J.R. Borja Extension & Liminarias Street Camaman-an, 9000 Cagayan De Oro City EXPLANATION (Pursuant to Section 11, Rule 13 of the 1997 Rules on Civil Procedure) A copy of the foregoing Motion for Reconsideration was served by registered mail upon the adverse parties’ counsels by reason of considerable distance involved and for lack of personnel to effect personal service. / ALLAN $, MONTANO(btn ALLBN S&S MONTAYO ION OF SEER wORNTRS, Mania, Pippi Ay: [(SRAFEL D- FAGELA Pale | 76 PCATON WARTINES FOES, a SON PEDRO, LEANO ef OPC: 2 FEB 14 2028 Pensce for Responder} Dae phat es, ING = Gt Flor tuscom poilding IY VA pufino Sk, Copp Eo [22 late O%) Reowesne REGISTERED wii