THIRD DIVISION

G.R. No. 121227. August 17, 1998

VICENTE SAN JOSE, Petitioner, v. NATIONAL LABOR

RELATIONS COMMISSION and OCEAN TERMINAL SERVICES,
INC., Respondents.

DECISION

PURISIMA, J.:

Before the Court is a Petition for Certiorari seeking to annul a

Decision of the National Labor Relations Commission dated April 20,
1995 in NLRC-NCR-CA-No. 00671-94 which reversed, on
jurisdictional ground, a Decision of the Labor Arbiter dated January
19, 1994 in NLRC-NCR Case No. 00-03-02101-93 a case for
a money claim - underpayment of retirement benefit. Records
do not show that petitioner presented a Motion for Reconsideration
of subject Decision of the National Labor Relations Commission,
which motion is, generally required before the filing of Petition
for Certiorari.

While the rule prescribing the requisite motion for reconsideration is

not absolute and recognizes some exceptions, there is no showing
that the case at bar constitutes an exception. Nevertheless, we gave
due course to the petition to enable the Court to reiterate and
clarify the jurisdictional boundaries between Labor Arbiters and
Voluntary Arbitrator or Panel of Voluntary Arbitrators over money
claims, and to render substantial and speedy justice to subject aged
stevedore retiree who first presented his claim for retirement
benefit in April 1991, or seven years ago.

Labor law practitioners and all lawyers, for that matter, should be
fully conversant with the requirements for the institution
of certiorari proceedings under Rule 65 of the Revised Rules of
Court. For instance, it is necessary that a Motion for Reconsideration
of the Decision of the National Labor Relations Commission must
first be resorted to. The ruling in Corazon Jamer v. National Labor
Relations Commission,  G.R. No. 112630, September 5, 1997,
comes to the fore and should be well understood and observed. An
ordinary allegation ... and there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law (Rule 65, Sec.
1, Revised Rules of Court) is not a foolproof substitute for a Motion
for Reconsideration, absence of which can be fatal to a Petition
for Certiorari. Petitioner cannot and should not rely on the liberality
of the Court simply because he is a working man.

In the Jamer case,  this court said:

... This premature action of petitioners constitutes a fatal infirmity

as ruled in a long line of decisions, most recently is the case
of Building Care Corporation v. National Labor Relations
Commission

The filing of such motion is intended to afford public respondent an

opportunity to correct any actual or fancied error attributed to it by
way of a re-examination of the legal and factual aspects of the case.
Petitioners inaction or negligence under the circumstances is
tantamount to a deprivation of the right and opportunity of the
respondent commission to cleanse itself of an error unwittingly
committed or to vindicate itself of an act unfairly imputed...

Likewise, a motion for reconsideration is an adequate remedy;

hence certiorari  proceedings, as in this case, will not prosper.

As stated in the Decision of the Labor Arbiter in NLRC-NCR-Case No.

00-03-0201-93, dated January 19, 1994, the facts of this case are
undisputed. The Labor Arbiter reported, thus:

Complainant, in his position paper (Record, pages 11 to 14) states

that he was hired sometime in July 1980 as a stevedore
continuously until he was advised in April 1991 to retire from
service considering that he already reached 65 years old (sic); that
accordingly, he did apply for retirement and was paid P3,156.39 for
retirement pay... (Rollo, pp. 15, 26-27, 58-59).

Decision of the Labor Arbiter in NLRC-NCR-Case No. 00-03-02101-

93, January 9, 1994 (Rollo, pp. 15017, at pp. 16-17).
The Labor Arbiter decided the case solely on the merits of the
complaint. Nowhere in the Decision is made mention of or reference
to the issue of jurisdiction of the Labor Arbiter (Rollo, pp. 15-
17). But the issue of jurisdiction is the bedrock of the Petition
because, as earlier intimated, the Decision of the National Labor
Relations Commission, hereinbelow quoted, reversed the Labor
Arbiters Decision on the issue of jurisdiction. Reads subject Decision
of the Labor Arbiter:

Respondents, in their Reply to complainants position paper,

allege (Record, pages 18 to 21) that complainants latest basic
salary was P120.34 per day; that he only worked on rotation basis
and not seven days a week due to numerous stevedores who can
not all be given assignments at the same time; that all stevedores
only for paid every time they were assigned or actually performed
stevedoring; that the computation used in arriving at the amount
of P3,156.30 was the same computation applied to the other
stevedores; that the use of divisor 303 is not applicable because
complainant performed stevedoring job only on call, so while he was
connected with the company for the past 11 years, he did not
actually render 11 years of service; that the burden of proving that
complainants latest salary was P200.00 rests upon him; that he
already voluntarily signed a waiver of quitclaim; that if indeed
respondent took advantage of his illiteracy into signing his
quitclaim, he would have immediately filed this complaint but nay,
for it took him two (2) years to do so.

The issue therefore is whether or not complainant is entitled to the

claimed differential of separation pay.

We find for the complainant. He is entitled to differential.

We cannot sustain a computation of length of service based on the

ECC contribution records. Likewise, the allegation that complainant
rendered service for only five days a month for the past 11 years is
statistically improbable, aside from the fact that the best evidence
thereof are complainants daily time records which respondent
are (sic) duty bound to keep and make available anytime in case of
this.
The late filing has no bearing. The prescription period is three years.
It is suffice (sic) that the filing falls within the period.

Whether or not complainant worked on rotation basis is a burden

which lies upon the employer. The presumption is that the normal
working period is eight (8) hours a day and six (6) days a week, or
26 days a month, unless proven otherwise.

Also, the burden of proving the amount of salaries paid to

employees rests upon the employer not on the employee. It can be
easily proven by payrolls, vouchers, etc. which the employers are
likewise duty bound to keep and present. There being non, we have
to sustain complainants assertion that his latest salary rate
was P200 a day or P5,200 a month. Therefore, his retrenchment
pay differential is P25,443.70 broken down as follows:

P200 x 26 days = P5,200 x 11 years

2

= (P2,600 x 11 years) - P3,156.30

= P28,600 - P3,156.30

= P25,443.70

The Decision of the National Labor Relations Commission in NLRC-

NCR-CA No. 06701-94, April 20, 1995 (Rollo, pp. 18-21).

The National Labor Relations Commission reversed on jurisdictional

ground the aforesaid Decision of the Labor Arbiter; ruling, as
follows:

... His claim for separation pay differential is based on the Collective
Bargaining Agreement (CBA) between his union and the respondent
company, the pertinent portion of which reads:

xxx ANY UNION member shall be compulsory retired (sic) by the

company upon reaching the age of sixty (60) years, unless
otherwise extended by the company for justifiable reason. He shall
be paid his retirement pay equivalent to one-half (1/2) month salary
for every year of service, a fraction of at least six months being
considered as one (1) whole year.

xxx The company agrees that in case of casual employees and/or

workers who work on rotation basis the criterion for determining
their retirement pay shall be 303 rotation calls or work days as
equivalent to one (1) year and shall be paid their retirement pay
equivalent to one half (1/2) month for every year of service.

xxx

Since the instant case arises from interpretation or implementation

of a collective bargaining agreement, the Labor Arbiter should have
dismissed it for lack of jurisdiction in accordance with Article
217 (c) of the Labor Code, which reads: (Underscoring supplied)

Art. 217. Jurisdiction of Labor Arbiter and the Commission.

xxx

(c) Cases arising from the interpretation or implementation of

collective bargaining agreement and those arising from the
interpretation or enforcement of company procedure/policies shall
be disposed of by the Labor Arbiter by referring the same to the
grievance machinery and voluntary arbitrator as may be provided in
said agreements.

Petitioner contends that:

I. THE PUBLIC RESPONDENT NLRC GRAVELY ABUSED ITS

DISCRETION IN GIVING DUE COURSE TO THE APPEAL DESPITE
THE FACT 4 (SIC) THAT IT WAS FILED OUT OF TIME AND
THERE IS NO SHOWING THAT A SURETY BOND WAS POSTED.

II. THE PUBLIC RESPONDENT NLRC GRAVELY ABUSED ITS

DISCRETION N SETTING ASIDE THE DECISION OF XXX DATED
19 JANUARY 1994 AND DISMISSING THE CASE ON THE
GROUND OF LACK OF JURISDICTION WHEN THE ISSUE DOES
NOT INVOLVE ANY PROVISION OF THE COLLECTIVE
BARGAINING AGREEMENT. (Rollo, pp. 7-8)
The Manifestation and Motion (In Lieu of Comment) sent in on
December 6, 1995 by the Office of the Solicitor General support the
second issue, re: jurisdiction raised by the Petitioner (Rollo, pp. 26-
33, at pp. 38-32).

Labor Arbiter Decision

Labor Arbiters should exert all efforts to cite statutory provisions

and/or judicial decision to buttress their dispositions. An Arbiter
cannot rely on simplistic statements, generalizations, and
assumptions. These are not substitutes for reasoned judgment. Had
the Labor Arbiter exerted more research efforts, support for the
Decision could have been found in pertinent provisions of the Labor
Code, its Implementing Rules, and germane decisions of the
Supreme Court. As this Court said in Juan Saballa, et al. v. NLRC,
G.R. No. 102472-84, August 22, 1996:

xxx This Court has previously held that judges and arbiters should
draw up their decisions and resolutions with due care, and make
certain that they truly and accurately reflect their conclusions and
their final dispositions. A decision should faithfully comply with
Section 14, Article VIII of the Constitution which provides that no
decision shall be rendered by any court without expressing therein
clearly and distinctly the facts of the case and the law on which it is
based. If such decision had to be completely overturned or set
aside, upon the modified decision, such resolution or decision should
likewise state the factual and legal foundation relied upon. The
reason for this is obvious: aside from being required by the
Constitution, the court should be able to justify such a sudden
change of course; it must be able to convincingly explain the taking
back of its solemn conclusions and pronouncements in the earlier
decision. The same thing goes for the findings of fact made by the
NLRC, as it is a settled rule that such findings are entitled to great
respect and even finality when supported by substantial evidence;
otherwise, they shall be struck down for being whimsical and
capricious and arrived at with grave abuse of discretion. It is a
requirement of due process and fair play that the parties to a
litigation be informed of how it was decided, with an explanation of
the factual and legal reasons that led to the conclusions of the
court. A decision that does not clearly and distinctly state the facts
and the law on which it is based leaves the parties in the dark as to
how it was reached and is especially prejudicial to the losing party,
who is unable to pinpoint the possible errors of the court for review
by a higher tribunal. xxx

This is not an admonition but rather, advice and a critique to stress

that both have obligations to the Courts and students of the law.
Decisions of the Labor Arbiters, the National Labor Relations
Commission, and the Supreme Court serve not only to adjudicate
disputes, but also as an educational tool to practitioners,
executives, labor leaders and law students. They all have a keen
interest in methods of analysis and the reasoning processes
employed in labor dispute adjudication and resolution. In fact,
decisions rise or fall on the basis of the analysis and reasoning
processes of decision makers or adjudicators.

On the issues raised by the Petitioner, we rule:

I. Timeliness of Appeal And Filing of Appeal Bond

The Court rules that the appeal of the respondent corporation was
interposed within the reglementary period, in accordance with the
Rules of the National Labor Relations Commission, and an appeal
bond was duly posted. We adopt the following Comment dated
August 14, 1996, submitted by the National Labor Relations
Commission, to wit:

xxx While it is true that private respondent company received a

copy of the decision dated January 19, 1994 of the Labor Arbiter
xxx and filed its appeal on February 14, 1994, it is undisputed that
the tenth day within which to file an appeal fell on a Saturday, the
last day to perfect an appeal shall be the next working day.

Thus, the amendments to the New Rules of Procedure of the NLRC,

Resolution No. 11-01-91 which took effect on January 14, 1992,
provides in part:

xxx
1. Rule VI, Sections 1 and 6 are hereby amended to read as follows:

Section 1. Period of Appeal  Decisions, awards or orders of the Labor

Arbiter ... shall be final and executory unless appealed to the
Commission by any or both parties within ten (10) calendar days
from receipt of such decisions, awards or orders of the Labor Arbiter
xxx ... If the 10th day ... falls on a Saturday, Sunday or a Holiday,
the last day to perfect the decision shall be the next working
day. (Underscoring supplied)

Hence, it is crystal clear that the appeal was filed within the
prescriptive period to perfect an appeal. Likewise, the petitioners
contention that private respondent did not post the required surety
bond, deserves scant consideration, for the simple reason that a
surety bond was issued by BF General Insurance Company, Inc., in
the amount of P25, 443.70 (Rollo, pp. 63-64).

2. Jurisdictional Issue

The jurisdiction of Labor Arbiters and Voluntary Arbitrator or Panel

of Voluntary Arbitrators is clearly defined and specifically delineated
in the Labor Code. The pertinent provisions of the Labor Code, read:

A. Jurisdiction of Labor Arbiters

Art. 217. Jurisdiction of Labor Arbiter and the Commission. -- (a)

Except as otherwise provided under this Code the Labor Arbiter shall
have original and exclusive jurisdiction to hear and decide, within
thirty (30) calendar days after the submission of the case by the
parties for decision without extension, even in the absence of
stenographic notes, the following cases involving all workers,
whether agricultural or non-agricultural:

1. Unfair labor practice cases;

2. Termination disputes;

3. If accompanied with a claim for reinstatement, those cases that

workers may file involving wages, rates of pay, hours of work and
other terms and conditions of employment;
4. claims for actual, moral, exemplary and other forms of damages
arising from the employer-employee relations;

5. Cases arising from any violation of Article 264 of this Code,

including questions involving the legality of strikes and lockouts;
and,

6. Except claims for Employees Compensation, Social Security,

Medicare and maternity benefits, all other claims, arising from
employer-employee relations, including those of persons in
domestic or household service, involving an amount exceeding five
thousand pesos (P5,000) regardless of whether accompanied with a
claim for reinstatement.

xxx

(c) Cases arising from the interpretation or implementation of

collective bargaining agreement and those arising from the
interpretation or enforcement of company procedure/policies shall
be disposed of by the Labor Arbiter by referring the same to the
grievance machinery and voluntary arbitrator so maybe provided in
said agreement.

B. Jurisdiction of Voluntary Arbitrator or Panel of Voluntary

Arbitrators

Art. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary

Arbitrators.  The Voluntary Arbitrator or panel of Voluntary
Arbitrators shall have original and exclusive jurisdiction to hear and
decide all unresolved grievances arising from the interpretation or
implementation of the Collective Bargaining Agreement and those
arising from the interpretation or enforcement of company
personnel policies referred to in the immediately preceding article.
Accordingly, violations of a Collective Bargaining Agreement, except
those which are gross in character, shall no longer be treated as
unfair labor practice and shall be resolved as grievances under the
collective bargaining agreement. For purposes of this Article, gross
violations of Collective Bargaining Agreement shall mean flagrant
and/or malicious refusal to comply with the economic provisions of
such agreement.
The Commission, its Regional Offices and the Regional Directors of
the Department of Labor and Employment shall not entertain
disputes, grievances or matters under the exclusive and original
jurisdiction of the Voluntary Arbitrator or panel of Voluntary
Arbitrators and shall immediately dispose and refer the same to the
Grievance Machinery or Voluntary Arbitration provided in the
Collective Bargaining Agreement.

Art. 262. Jurisdiction over other labor disputes.  The Voluntary

Arbitrator or panel of Voluntary Arbitrators, upon agreement of the
parties, shall also hear and decide all other labor disputes including
unfair labor practices and bargaining deadlocks.

The aforecited provisions of law cannot be read in isolation or

separately. They must be read as a whole and each Article of the
Code reconciled one with the other. An analysis of the provisions of
Articles 217, 261, and 262 indicates, that:

1. The jurisdiction of the Labor Arbiter and Voluntary Arbitrator or

Panel of Voluntary Arbitrators over the cases enumerated in Articles
217, 261 and 262, can possibly include money claims in one form or
another.

2. The cases where the Labor Arbiters have original and

exclusive jurisdiction are enumerated in Article 217, and that of the
Voluntary Arbitrator or Panel of Voluntary Arbitrators in Article 261.

3. The original and exclusive jurisdiction of Labor Arbiters is

qualified by an exception as indicated in the introductory sentence
of Article 217 (a), to wit:

Art. 217. Jurisdiction of Labor Arbiters ...  (a) Except as otherwise

provided under this Code the Labor Arbiter shall have original and
exclusive jurisdiction to hear and decide ... the following cases
involving all workers...

The phrase Except as otherwise provided under this Code refers to

the following exceptions:

A. Art. 217. Jurisdiction of Labor Arbiters ...

xxx

(c) Cases arising from the interpretation or implementation of

collective bargaining agreement and those arising from the
interpretation or enforcement of company procedure/policies shall
be disposed of by the Labor Arbiter by referring the same to the
grievance machinery and voluntary arbitrator as may be provided in
said agreement.

B. Art. 262. Jurisdiction over other labor disputes. -  The Voluntary

Arbitrator or panel of Voluntary Arbitrators, upon agreement of the
parties, shall also hear and decide all other labor disputes including
unfair labor practices and bargaining deadlocks.

Parenthetically, the original and exclusive jurisdiction of the Labor

Arbiter under Article 217 (c), for money claims is limited only to
those arising from statutes or contracts other than a Collective
Bargaining Agreement. The Voluntary Arbitrator or Panel of
Voluntary Arbitrators will have original and exclusive jurisdiction
over money claims arising from the interpretation or
implementation of the Collective Bargaining Agreement and, those
arising from the interpretation or enforcement of company
personnel policies, under Article 261.

4. The jurisdiction of Voluntary Arbitrator or Panel of Voluntary

Arbitrators is provided for in Arts. 261 and 262 of the Labor Code as
indicated above.

1. A close reading of Article 261 indicates that the original and

exclusive jurisdiction of Voluntary Arbitrator or Panel of Voluntary
Arbitrators is limited only to:

... unresolved grievances arising from the interpretation or

implementation of the Collective Bargaining Agreement and those
arising from the interpretation or enforcement of company
personnel policies... Accordingly, violations of a collective bargaining
agreement, except those which are gross in character, shall no
longer be treated as unfair labor practice and shall be resolved as
grievances under the Collective Bargaining Agreement. xxx.
2. Voluntary Arbitrators or Panel of Voluntary Arbitrators, however,
can exercise jurisdiction over any and all disputes between an
employer and a union and/or individual worker as provided for in
Article 262.

Art. 262. Jurisdiction over other labor disputes. -  The voluntary

arbitrator or panel of voluntary arbitrators, upon agreement of the
parties, shall also hear and decide all other labor disputes including
unfair labor practices and bargaining deadlocks.

It must be emphasized that the jurisdiction of the Voluntary

Arbitrator or Panel of Voluntary Arbitrators under Article 262 must
be voluntarily conferred upon by both labor and management. The
labor disputes referred to in the same Article 262 can include all
those disputes mentioned in Article 217 over which the Labor
Arbiter has original and exclusive jurisdiction.

As shown in the above contextual and wholistic analysis of Articles

217, 261, and 262 of the Labor Code, the National Labor Relations
Commission correctly ruled that the Labor Arbiter had no jurisdiction
to hear and decide petitioners money-claim underpayment of
retirement benefits, as the controversy between the parties
involved an issue arising from the interpretation or implementation
of a provision of the collective bargaining agreement. The Voluntary
Arbitrator or Panel of Voluntary Arbitrators has original and
exclusive jurisdiction over the controversy under Article 261 of the
Labor Code, and not the Labor Arbiter.

3. Merits of the Case

The Court will not remand the case to the Voluntary Arbitrator or
Panel of Voluntary Arbitrators for hearing. This case has dragged on
far too long - eight (8)  years. Any further delay would be a denial of
speedy justice to an aged retired stevedore. There is further the
possibility that any Decision by the Voluntary Arbitrator or Panel of
Voluntary Arbitrators will be appealed to the Court of Appeals, and
finally to this Court. Hence, the Court will rule on the merits of the
case.
We adopt as our own the retirement benefit computation formula of
the Labor Arbiter, and the reasons therefor as stated in the decision
abovequoted.

The simple statement of the Labor Arbiter that we cannot sustain a

computation of length of service based on ECC contribution records,
was not amply explained by the Labor Arbiter; however, there is
legal and factual basis for the same. It is unrealistic to expect a
lowly stevedore to know what reports his employer submits to the
Employees Compensation Commission under Book IV, Health,
Safety and Welfare Benefits, Title II, Employees Compensation and
State Insurance Fund, of the Labor Code, simply because the
insurance fund is solely funded by the employer and the rate of
employers contribution varies according to time and actuarial
computations. (See  Articles 183-184; Labor Code). The worker has
no ready access to this employers record. In fact, it is farthest from
his mind to inquire into the amount of employers contribution, much
less whether the employer remits the contributions. The worker is at
all times entitled to benefits upon the occurrence of the defined
contingency even when the employer fails to remit the
contributions. (See Article 196 (b), Labor Code).

All employers are likewise required to keep an employment record

of all their employees, namely: payrolls; and time records.
(See Book III, Rule X, specifically Secs. 6,7,8, 1 and 12, Omnibus
Rules - Implementing the Labor Code).

The respondent-employer was afforded the opportunity to show

proof of the petitioners length of service and pay records. In both
instances, the respondent-employer failed. By its own folly, it must
therefore suffer the consequences of such failure. (South Motorists
Enterprises v. Tosoc, 181 SCRA 386, [1990]) From the very
beginning - by the provision of the retirement provision of the
Collective Bargaining Agreement, i.e., the length of service as
requirement for retirement, and salary as a basis for benefit
computation - the employer was forewarned of the need for
accurate record keeping. This is precisely the basis of retirement,
and the computation of benefits based on years of service and
monthly wage.
To recapitulate; the Court hereby rules -

1. That the National Labor Relations Commission correctly ruled that

the Labor Arbiter had no jurisdiction over the case, because the
case involved an issue arising from the interpretation or
implementation of a Collective Bargaining Agreement;

2. That the appeal to the National Labor Relations Commission was

filed within the reglementary period and that the appeal bond was
filed; and

3. That we adopt the computation formula for the retirement

benefits by the Labor Arbiter, and the basis thereof. The respondent
must therefore pay the petitioner the additional amount of Twenty-
Five Thousand Four Hundred Forty-Three and Seventy
Centavos P25,443.70) Pesos.

In view of the long delay in the disposition of the case, this decision
is immediately executory.

SO ORDERED.