REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

MARSMAN-DRYSDALE
FOODS CORPORATION,
Petitioner,

- versus - C.A.-G.R. S.P. NO. __________

(NLRC-NCR-00-06-03867-02)
(CA NO. 035033-03)
NATIONAL LABOR RELATIONS
COMMISSION AND
MARVIN A. ABANSADO,
Respondents.
x------------------------------------------ x

PETITION FOR CERTIORARI

(with Applications for a Writ of Preliminary Injunction

and a Temporary Restraining Order)

Petitioner Marsman-Drysdale Foods Corporation, by counsel,

respectfully states:

I
NATURE OF THE PETITION

This is a special civil action for certiorari under Rule 65 of the Rules

of Court of the Philippines to annul the Decision dated October 30, 2003

(the "Decision") and the Resolution dated March 19, 2004 (the "Resolution")

issued by the public respondent National Labor Relations Commission in

NLRC CA No. 035033-03 (NLRC-NCR-00-06-03867-02), entitled "Marvin

A. Abansado (complainant-appellant) vs. Marsman-Drysdale Foods

Corporation and Mr. Drysdale (respondents-appellees)"

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As will be explained below, both the Decision and the Resolution

were issued by the public respondent without jurisdiction and with grave

abuse of discretion requiring this Honorable Court’s immediate intervention.

Pending further proceedings in this case and without prejudice to the

outcome of this Petition, petitioner also prays for the issuance of a temporary

restraining order and a writ of preliminary injunction restraining the

National Labor Relations Commission, and all other persons acting under its

instructions or direction, from proceeding with the execution or

implementation of the assailed Decision and Resolution;

II

TIMELINESS OF THE PETITION

AND OTHER REQUIREMENTS

On November 24, 2003, petitioner received copy of public

respondent's Decision dated October 30, 2003 (the "Decision"), a certified

true copy of which is hereto attached as Annex "A".

On December 2, 2003, petitioner filed a timely Motion for

Reconsideration thereof, a copy of which is hereto attached as Annex "B".

On April 23, 2004, petitioner received copy of the Resolution dated

March 19, 2004, a certified true copy of which is hereto attached as Annex

"C". Thus, this Petition was filed within the sixty-day period.

A copy of this Petition was served on the public and private

respondents. A duly accomplished affidavit of service attesting to this

accompanies this Petition. The corresponding docket fees will be paid upon
 3

the filing of this Petition. A duly notarized secretary’s certificate authorizing

the filing of this Petition is also attached.

There is no other plain, speedy, and adequate remedy available to

petitioners other than the issuance by this Honorable Court of the writ of

certiorari. Furthermore, petitioners will suffer grave and irreparable injury if

the public respondent is not restrained from implementing or executing the

subject Decision and Resolution.

III

THE PARTIES

Petitioner Marsman-Drysdale Food Corporation is a corporation duly

organized and existing under Philippine laws with principal business address

at DBP Avenue corner Sirloin Road, FTI Complex, Taguig, Metro Manila

where it may be served orders and processes.

Public respondent National Labor Relations Commission (hereinafter,

"Public Respondent") is impleaded as respondent for having rendered the

assailed Decision and Resolution and may be served summons and other

court processes at the National Labor Relations Commission, Banaue,

Quezon City;

Private respondent Marvin A. Abansado is of legal age and is residing

at 221 Paso Street, Bagumbayan, Taguig, Metro Manila. He may be served

pleadings, orders, summons and other court process through counsel of

record, Atty. Julio F. Andres, 30 Violeta St., Roxas District, Quezon City.

.
 4

IV

STATEMENT OF FACTS
AND ANTECEDENT PROCEEDINGS

1. Petitioner Marsman-Drysdale Foods Corporation is engaged in the

business of fresh mango exporting and trading. As part of its operation, it

has a Drying/Sorting Section of Fresh Fruits wherein raw mangoes are

sorted and dried. The supply of mangoes for processes is seasonal in nature

corresponding more or less to the mango season of around seven months per

year.

2. As a result of the seasonal nature of mango supply, the work

schedule of workers depends on two factors: (a) availability of the mangoes

as supplied or delivered to the company's premises from far-flung areas, and

(b) orders from foreign buyers. Due to these two (2) factors, workers do not

have fixed schedule of working days and hours. Even during the peak mango

season, workers may be asked to work for less than six (6) days a week and

less than eight (8) hours a day.

3. To adjust to the seasonal nature of the mango business, petitioner

hires workers in its drying and sorting section on a casual basis who are paid

on a "daily basis" and on a "no work, no pay" basis at the minimum daily

wage rate.

4. Sometime in April 20, 2001, petitioner hired private respondent to

work at its Drying/Sorting Section of Fresh Fruits as a casual worker to work

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on a daily basis on a "no work, no pay" basis at the minimum daily wage

provided by law.

5. On or about October 23, 2001, petitioner stopped hiring private

respondent as the mango season is over and there was no longer any work

for him to do. Thus, private respondent employment as a casual covered

only a period of six (6) months and three (3) days (April 20, 2001 to October

23, 2001).

6. Surprisingly on June 5, 2002, after a lapse of six (6) months from

his last day at work (October 23, 2001), private respondent filed a complaint

against petitioners for illegal dismissal, underpayment/non-payment of

salaries/wages, service incentive leave pay and separation pay.

A copy of the complaint filed by private respondent is attached hereto

as Annex "D".

7. For failure to amicably settle the complaint during the mandatory

preliminary conferences, the parties were directed to file their respective

Position Papers. Both parties filed their respective Position Papers.

Copies of petitioners' and private respondent's Position Papers are

attached hereto as Annexes "E" and "F", respectively.

8. Subsequently, private respondent filed his Reply to petitioners'

Position Paper, copy of which is hereto attached as Annex "G". The case

was then deemed submitted for Resolution.

9. On February 28, 2003, Labor Arbiter Madriaga rendered a decision

the dispositive portion of which reads:

"WHEREFORE, premises considered, the complaint is

hereby dismissed for lack of merit.
 6

Respondent corporation is directed to reinstate

complainant as a seasonal employee during the next season
immediately."

Copy of the Decision dated February 28, 2003 is hereto attached as

Annex "H".

10. On March 31, 2003, private respondent filed a Memorandum of

Appeal of said Decision to which petitioner filed on April 14, 2003 an

Answer to Complainant's Memorandum of Appeal (hereinafter, "Answer").

Copies of private respondent's Memorandum of Appeal and

petitioner's Answer thereto are hereto attached as Annexes "I" and "J",

respectively.

11. On October 30, 2003, public respondent National Labor Relations

Commission rendered a Decision reversing the Decision of Labor Arbiter

Madriaga, the dispositive portion of which reads:

"WHEREFORE, premises considered the decision under

review is hereby, REVERSED and SET ASIDE, and another
entered, declaring complainant to have been illegally dismissed
from employment.

Accordingly, respondent corporation is ordered to

REINSTATE the complainant to his former position, and pay
him FULL BACKWAGES, computed from the time he was
dismissed from employment until actually reinstated." (please
see Annex "A")

12. Petitioner timely filed a Motion for Reconsideration of the said

Decision. On March 19, 2004, the public respondent issued the assailed

Resolution (see Annex "C") denying the said motion for reconsideration, the

dispositive portion of which reads:

 7

"WHEREFORE, in the light of the foregoing, this

Motion for Reconsideration is hereby DENIED for lack of
merit."

13. Hence, this petition.

V.
GROUNDS IN SUPPORT OF THE PETITION

I. The Public Respondent has acted without or

in excess of its jurisdiction or with grave abuse of
discretion in taking cognizance of private
respondent's appeal and in reversing a final and
executory decision despite the fact said appeal was
filed beyond the reglementary period within which to
appeal.

II. The public respondent acted with grave

abuse of discretion in declaring that private
respondent had attained the status of a regular
employee despite substantial evidence on record that
said private respondent is a seasonal worker and/or a
casual employee.

III. The public respondent acted with grave

abuse of discretion in declaring that private
respondent was illegally dismissed from employment
contrary to the settled rule that a seasonal employee's
employment is only deemed suspended not terminated
during the off-season period.

VI.
DISCUSSION

I. Public respondent has acted

without or in excess of its
jurisdiction or with grave abuse of
discretion in taking cognizance of
private respondent's appeal and
reversing a final and executory
decision despite the fact that the
same was filed beyond the
 8

reglementary period within which

to appeal.
---------------------------------------------

14. The records indicate that private respondent received copy of the

Labor Arbiter's Decision on March 19, 2003 as per his Memorandum Appeal

(see Annex "I") wherein he states that:

"Complainant-Appellant by counsel in this case and unto

the Honorable Commission most respectfully appeals from the
decision of Labor Arbiter Eduardo Madriaga dated February 28,
2003, a copy was received on March 19, 2003 xxx" (please see
Annex "H, private respondent's Memorandum of Appeal).

15. Hence, his appeal was due on March 29, 2003, or ten (10) days

from receipt of said Decision conformably with Article 280 of the Labor

Code of the Philippines ("Labor Code") and Section 1, Rule VI of the New

Rules of Procedure of the National Labor Relations Commission. However,

private respondent only filed his appeal on March 31, 2003, or twelve days

from receipt of said decision (see Annex "I").

16. In the case of Zacate vs. Commission on Elections, G.R. No.

144678, March 1, 2001, the Supreme Court reiterated the well-settled rule:

"Basic is the rule that the perfection of an appeal within

the statutory or reglementary period is not only mandatory but
also jurisdictional and failure to do so renders the questioned
decision final and executory, and deprives the appellate court or
body of jurisdiction to alter the final judgment much less to
entertain the appeal."

17. The public respondent thus acted without or in excess of its

jurisdiction or with grave abuse of discretion amounting to lack or excess of

jurisdiction in taking cognizance of said appeal and in issuing the assailed

Decision and Resolution (see Annexes "A" and "C").

 9

II. Public respondent acted with grave abuse of

discretion in declaring that private respondent
had attained the status of a regular employee
despite substantial evidence on record that
said private respondent is a seasonal worker
and/or a casual employee.
------------------------------------------------------------

17. Labor Arbiter Madriaga in his Decision (please see Annex

"H"), held that private respondent has not attained regular status

considering that that he has actually worked for petitioner for less than

six (6) months. He declared that private respondent was a seasonal

employee and directed that he be reinstated during the next season.

Thus:

"We rule in the negative.

Respondents contend that the nature of their work is

seasonal in nature, and that they employ seasonal employees
and complainant is a seasonal employee.

As such he may only be employed during seasons when

there are work to be done, on a no work no pay basis, payable
at the prevailing minimum wage.

In any event, respondents presented documentary

evidence to prove that complainant has actually worked for less
than six months, he has not attained regular status.

WHEREFORE, premises considered, the complaint is

hereby dismissed for lack of merit.

Respondent is directed to reinstate complainant as a

seasonal employee during the next season immediately."

18. On the other hand, the public respondent in its Decision dated

October 30, 2003 (please see Annex "A") reversed and set aside the Labor

Arbiter's Decision and held instead that private respondent has attained
 10

regular status premised on the presumption that there being a supposed lack

or insufficient evidence to support the findings that private respondent

performed services that are seasonal in nature, the conclusion is therefore

that private respondent is not a seasonal worker, and but a regular employee.

Thus it reasoned that:

"Respondents vaguely refer to a "seasonal"

engagement of complainant's services, without a clear
discussion as to the duration or extent of the season. No
evidence was presented to prove their allegations that, by the
latter part of the year, there is no longer any mango available
for drying. Further, it was not even shown when is the start of
the season which should mark the continuation of complainant's
employment. Verily, such not so-usual mode of engagement
of complainant's services, needs more proof, to stand on, for
it to be sustained. And there being none, the presumption is
that, complainant's employment is on a regular basis ."
(Underscoring and emphasis supplied)

19. It is respectfully submitted that the above findings are not

supported by factual or legal basis and contradicts substantial evidence

below that establishes that the work performed by private respondent is

seasonal in nature and that he was hired as a casual for the duration of the

mango season.

20. Moreover, the absence or lack of specific allegations of the extent

or duration of the season does not by itself negate the fact that the service to

be performed is seasonal in nature. It is already of judicial notice that the

mango production in the Philippine is seasonal in nature and that while

mangoes can now be produced the whole year round; the volume of

production for commercial purposes especially for export still follows the
 11

duration of the mango season which is around the months of March to June

of the year.

21. Petitioner's mango exporting and trading business is heavily

dependent on mango supplies to petitioner as well as foreign orders. It is for

this reason that petitioner, except for employees who are engaged in the

management and administration of the business, hires workers on a casual

basis on a daily basis and who are paid on "no work, no pay basis".

22. In its Position Paper petitioner contended that in its business:

"xxx Workers do not have a fixed schedule of working

days and hours. Even during the peak mango season, workers
may be asked to work for less than six (6) days and less than
eight (8) hours a day. Off-season, workers may even work less
than eight (8) hours a day." (please see par. 1 of Annex "E",
petitioner's Position Paper).

23. To substantiate this contention, petitioner presented documentary

evidence consisting of payroll schedule for workers in its Drying Section for

the period from April 16, 2001 to October 31, 2001 and private respondent's

Daily Time Record for the months of August to October 2001 (please see

Annexes "A-1" to "A-13" and "B-1" to "B-3", attached to Annex "E" -

petitioner's Position Paper).

23.1 The payroll schedule indicates that private respondent service to

petitioner totaled only 62.6 days for the whole six (6) months period from

April 20, 2001 to October 23, 2001, or an average of around 10.4 days a

month (please see par. 4 of Annex "E" - petitioner's Position Paper). On the

other hand, private respondent's Daily Time Records indicate that he only

worked thirteen (13) days for the month of August 2001; sixteen (16) days

for September 2001; and, eleven (11) days for October 2001.
 12

23.2 This data proves that private respondent was hired on a daily

basis, as he was not required to work for all the working days of the month;

that he is paid on a "no-work, no-pay" basis; and that he was hired only on a

daily basis for the duration of the mango season. It also indicates that

mangoes were available for drying/sorting by private respondent only for

limited days for the duration of his six (6) month period of employment and

that his work schedule even on days when mangoes are available may be

less than eight (8) hours a day (please see pars. 2 and 3 of Annex "D",

Petitioner's Position Paper).

24. On the other hand, private respondent did not present evidence to

rebut these documentary evidences. In pars. 4 and 5 of his Reply (please see

Annex "G") to petitioner's Position Paper, he merely alleged that:

"4. The contention of the respondents that complainant

have not actually worked for six months from April 20 to
October 25, 2001 because he worked for only for a few days in
a given month and even less than 8 hours is not true. Their
Annexes "A" and sub-markings and "B" and submarkings could
not be considered to support their contention in view of the bare
fact that said documents were unsigned.

"5. Granting but without admitting that the said

contention is true, yet when they terminated the services of the
complainant, they did it without just or authorized cause and
without due process of law. Therefore the termination of the
complainant from employment was illegal."

25. In fact the public respondent, in its Decision date October 30,

2003 (please see Annex "A") found that indeed there was irregularity in

private respondent's frequency of attendance and that there exists a pattern

showing that his work schedule does not always reach eight hours a day.

Thus, it states:
 13

"Clearly established from complainant's time record is

the fact that, there was irregularity in the frequency of his
attendance. However, this alone does not constitute conclusive
evidence that the nature of complainant's employment is
seasonal. Facts as they stand, these would only justify
withholding an award for salary differentials, since there exists
a pattern, showing that complainant's schedule of work does not
always reach eight (8) hours daily (Records, pp. 30-32).
(Underscoring supplied)

26. Furthermore, it is significant to note that if private respondent's

contention that he was hired as a probationary was true, then why did he not

protest the non-payment of salaries for days for which he did not work as

indicated in his daily time records above cited, as being a probationary he is

still entitled to the payment thereof. This is because private respondent

knows that he was hired not on a probationary status as claimed by him in

his position paper (see par. 6 Annex "F") but as a casual on daily basis for

the duration of the mango season.

27. This also substantiates petitioner's contention that the

private respondent's service is seasonal in nature because "xxx where

the work or services to be performed is seasonal in nature and the

employment is for the duration of the season", then the employee

involved is not a regular employee but a seasonal worker (Art. 280,

Labor Code).

28. Article 280 of the Labor Code provides the test to determine

whether an employee is a seasonal worker as follows:

Art. 280. Regular and Casual Employment. –– The

provisions of written agreement to the contrary notwithstanding
 14

and regardless of the oral agreement of the parties, an

employment shall be deemed to be regular xxx except where
xxx where the work or services to be performed is seasonal
in nature and the employment is for the duration of the
season. (Underscoring and emphasis supplied)

29. Alternatively, assuming arguendo, that private respondent was

hired as a casual to perform work at the drying/sorting section. Still, he

cannot be deemed to have attained regular status, as he has not rendered

services for at least one year conformably with the second paragraph of Art.

280 of the Labor Code which provides in part that:

"An employment shall be deemed to be casual if it is not

covered by the preceding paragraph: Provided, That, any
employee who has rendered at least one year of service
whether such service is continuous or broken, shall be
considered a regular employee with respect to the activity in
which he is employed and his employment shall continue
while such actually exists. (Underscoring and emphasis
supplied)

30. There is no dispute that private respondent has not yet rendered at

least one year of service with the petitioner at the time of his supposed

termination. As such, he cannot be deemed to have attained regular

employment status at the time of his alleged termination from employment.

31. Moreover, private respondent's claim that he is a probationary

employee (please see par. 6 Annex "E", private respondent's Position Paper)

has no factual basis. The records would show that apart from his bare

allegations that he is a probationary employee, he has not presented any

evidence to prove the same. Consequently, his claim to regular employment

status based on the supposed expiration of his probationary period of

employment cannot be sustained.

 15

32. Based on the foregoing, it is clear that private respondent's

employment as dryer/sorter of fresh mangoes at petitioner's company is

seasonal in nature, and therefore, his employment as a casual worker therein

to perform said seasonal services is that of a seasonal worker for the during

of the mango season. As such, he cannot be deemed to have attained the

status of regular employee.

III. The public respondent acted with

grave abuse of discretion in declaring that
private respondent was illegally dismissed
from employment contrary to the settled
rule that a seasonal employee's
employment is only deemed suspended
not terminated during the off-season
period.
------------------------------------------------------

33. In its assailed Decision (see Annex "A", page 5), the public

prosecutor held in part that:

"xxx Verily, such not so-usual mode of engagement of

complainant's services, needs more proof, to stand on, for it to
be sustained. And there being none, the presumption is that,
complainant's employment is on a regular basis."

"Accordingly, his being rendered out of work should be

predicated on a just or authorized ground, and after due process,
and there being none, the conclusion is that he was illegally
dismissed from employment."

34. As discussed above, there was substantial and convincing

evidence established that private respondent is a casual seasonal employee

and therefore his employment is co-terminus with the mango season. As

such, his non-employment after the mango season cannot be considered as

 16

termination of employment but only as a suspension thereof, to be renewed

upon the happening of the next mango season.

35. In the case of Philippine Tobacco Flue Curing & Redrying

Corporation vs. NLRC (G.R. No. 127395, December 10, 1998), citing

Manila Hotel vs. CIR held that:

"The Lubat group is composed of petitioner's seasonal

employees who not rehired for the 1994 tobacco season. At the
start of that season, they were merely informed that their
employment had been terminated at the end of the 1993 season.
They claimed that petitioner's refusal to allow them to report for
work without mention of any just or authorized cause
constituted illegal dismissal. In their Complaint, they prayed for
separation pay, back wages, attorney's fees and moral
damages."

xxx

"This Court has previously ruled in Manila Hotel

Company v. CIR that seasonal workers who are called to work
from time to time and are temporarily laid of during off-season
are not separated from service in said period, but are merely
considered on leave until reemployed, viz.:

The nature of their relationship . . . is such that during off

season they are temporarily laid off but during summer season
they are re-employed, or when their services may be needed.
They are not strictly speaking separated from the service but are
merely considered as on leave of absence without pay until they
are re-employed." (9 SCRA 184, 186, September 30, 1963)
(Underscoring supplied)

36. Also, in the case of Cosmos Bottling Corporation vs. NLRC (GR

No. 106600, March 29, 1996) (hereinafter, "Cosmos Bottling case") the

Supreme Court, defining project employees as strictly speaking seasonal

worker held that upon termination of employment upon the termination of a

project does not constitute illegal dismissal. Thus, it opined that:

 17

" Clearly, therefore, private respondent being a project

employee, or to use the correct term, seasonal employee,
considering that his employment was limited to the installation
and dismantling of petitioner's annex plant machines after
which there was no more work to do, his employment
legally ended upon completion of the project. That being so,
the termination of his employment cannot and should not
constitute an illegal dismissal. xxx"

37. Conformably with the above, it is respectfully submitted that

private respondent was not terminated upon the expiration of the mango

season but was merely placed on leave of absence without pay, to be re-

employed upon the start of the next mango season as directed by the Labor

Arbiter in his Decision (see Annex "H"). Hence, he cannot be considered to

have been illegally dismissed without due process.

38. Moreover, in the assailed Decision of the public respondent (see

Annex "A") the latter ordered the petitioners to:

"REINSTATE the complainant to his former position,

and pay him FULL BACKWAGES, computed from the time he
was dismissed from employment until actually reinstated."

39. As discussed above, private respondent only performs services for

petitioner during the mango season and only during times when mango

supplies are available for processing as shown by the payroll schedule and

daily time records of private respondent. To reinstate private respondent to

his former position as a "regular employee" would be tantamount to paying

him wages daily even during off mango season where there is no work for

him to do, and even during mango season period but when no sufficient

mango supplies are available for processing.

 18

40. In the case of Archbuild Masters and Construction, Inc. vs. NLRC

(G.R. No. 108142, December 26, 1995) the Supreme Court declared that the

above describe situation is unfair and amounts to labor coddling at the

expense of management. Thus:

"xxx Consequently, as a project employee of

ARMACON, his employment may be terminated upon the
completion of the project as there would be no further need for
his services. Since a project employee's work depends on the
availability of projects, necessarily the duration of his
employment is not permanent but coterminous with the work to
which he is assigned. It would be extremely burdensome for
the employer, who depends on the availability of projects, to
carry him as a permanent employee and pay him wages
even if there are no projects for him to work on. The
rationale behind this is that once the project is completed it
would be unjust to require the employer to maintain these
employees in their payroll. To do so would make the
employee a privileged retainer who collects payment from
his employer for work not done. This is extremely unfair
and amounts to labor coddling at the expense of
management." (Underscoring and emphasis supplied)

41. Based on the foregoing, it is clear that public respondent gravely

abused its discretion in declaring that private respondent has attained regular

status, and that alleged termination from employment constitutes illegal

dismissal for which he is entitled to reinstatement plus payment of full

backwages.

Allegations in Support of the Application for a Temporary

Restraining Order and Writ of Preliminary Injunction

1. The above allegations, grounds and arguments are repleaded by

reference.
 19

2. As discussed above, the public respondent, with grave abuse of

discretion, and in violation of petitioner's constitutional right to due process,

declared the private respondent is its regular employee entitled to

reinstatement and entitled to the payment of full backwages counted from

date of dismissal up to actual reinstatement. On the other hand, under the

provisions of the Labor Code, the public respondent, through the Labor

Arbiter, is authorized to issue writs of execution for the purpose of enforcing

its judgments and resolutions.

3. Thus, unless the Honorable Court restrains the execution of the

assailed Decision and Resolution, grave and irreparable injury will

indubitably be inflicted upon petitioner, in that it will be held liable for a

substantial award, with no assurance that it will be able to recover that

amount if and when it prevails in this Petition. Accordingly, unless the

public respondent is immediately restrained from implementing the said

Decision and Resolution, the issues raised by this petition will become moot.

4. Consequently, pursuant to Rule 58 of the 1997 Rules of Civil

Procedure, the immediate issuance, ex parte, of a temporary restraining

order and, thereafter, a writ of preliminary injunction, enjoining the public

respondent and its deputies and agents from proceeding with execution of

the said Decision and Resolution, are clearly warranted in this case.

5. Petitioner is ready, willing and able to post a bond, in such

amount as this Honorable Court may determine in its discretion, to answer

for whatever damages the respondents may sustain by reason of the

temporary restraining order or writ of preliminary injunction applied for,

 20

should it finally be determined that petitioner was not entitled to either of

these preliminary reliefs.

PRAYER

WHEREFORE, it is respectfully prayed that the Honorable Court give

due course to this Petition, and –-

1. In the meantime, upon the filing of this Petition, the Honorable

Court immediately issue, ex parte, a temporary restraining order prohibiting

public respondent, its deputies, subordinates and agents, and all other

persons acting under its instructions or direction, from issuing a writ of

execution or otherwise enforcing the subject Decision and Resolution;

2. After appropriate proceedings, the Honorable Court issue a writ

of preliminary injunction in the same tenor as the temporary restraining

order prayed for above; and

3. After appropriate proceedings, judgment be rendered as

follows:

(a) nullifying and setting aside the Decision of the public respondent

dated October 30, 2003 and the Resolution dated March 19, 2004; and,

(b) reinstating the Decision of Labor Arbiter Edgardo M. Madriaga,

dated February 28, 2003 dismissing private respondent's complaint for lack

of merit.

Petitioner further prays for such other reliefs as may be just and
equitable.
Quezon City for Manila, June 17, 2004.
 21

KHO ANTONIO VELASCO & PAYOS

LAW OFFICES
2/F William Building
35 Quezon Avenue,
Quezon City
Metro Manila
By:

CONRADO V. VELASCO
PTR 51353908 1-28-04
QUEZON CITY
IBP 609406 1-28-04 QUEZON
CITY
ROLL NO. 35172

Copies furnished:

NATIONAL LABOR RELATIONS COMMISSION

Banaue St., Quezon City
Metro Manila

Atty. Julio F. Andres

Counsel for Private Respondent
30 Violeta St., Roxas District
Quezon City 1103

Mr. Marvin Abansado

221 Paso St., Bagumbayan
Taguig, Metro Manila

Explanation for Service by Registered Mail

Due to time constraints, and the lack of adequate messengerial

services, this pleading shall be served by registered mail.

CONRADO V. VELASCO
 22

/abansado.mdfc.petition.certiorari.65
 23

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, Marilou D. Antonio, of legal age, and with business address at DBP

Avenue corner Sirloin Road, FTI Complex, Taguig, Metro Manila, having
been duly sworn, depose and state:

1. I am the Human Resources Director and duly authorized

representative of Marsman-Drysdale Foods Corporation, the petitioner in the
above-captioned case, as shown by the Secretary’s Certificate attached
hereto as Annex “K”.

2. I have read the foregoing Petition, the factual allegations of which

are true and correct of my own personal knowledge and based on authentic
records.

3. I certify that neither petitioner nor I have commenced any other

action or proceeding involving the same issues in the Supreme Court, this
Honorable Court, the divisions thereof, or any other tribunal or agency, and
that, to the best of my knowledge, no such other action, claim or proceeding
is pending in any of these tribunals/agencies.

4. Should Petitioner or I hereafter learn that a similar action or

proceeding has been filed or is pending before the Supreme Court, the Court
of Appeals, or different divisions thereof, or any other tribunal or agency, we
undertake to promptly inform the aforesaid courts and other tribunal or
agency within five (5) days therefrom.

MARILOU D. ANTONIO

SUBSCRIBED AND SWORN to before me, this ___ day of June

2004, at Makati, affiant exhibiting to me her Community Tax Certificate No.
_______________ issued on ____________ at ______________.

Doc. No. ______;

Page No. ______;
Book No. ______;
Series of 2004.