PHESCO, INC. AND CARLOS GANZON, PETITIONERS, VS. THE NATIONAL LABOR RELATIONS COMMISSION, NICANOR DURO, MANUEL JABLA, AURELIO ERMAC, RODOLFO RAMIREZ, WELITO SABADUQUIA AND FERNA…

This is a petition for certiorari under Rule 65 of the
Revised Rules of Court to reverse and set aside the Decision dated August 23,
1991 of the National Labor Relations Commission (NLRC) in NLRC RAB XII Cases
Nos. 12-05-10305 (10307, 10309, 10311, 10313, 10315)-89, and its Resolution
dated February 28, 1992 denying reconsideration thereof.

I

Petitioner Phesco, Inc. (Phesco) is engaged in the construction
business. It undertook the construction
of three hydroelectric plants (MC-5, Agus I and Agus II) in Mindanao. To assure a steady supply of aggregates for
Agus I, it put up an aggregate processing plant in Iligan City, with petitioner
Carlos Ganzon as the head thereof.

Private respondents Nicanor Duro, Manuel Jabla, Aurelio Ermac,
Rodolfo Ramirez, Welito Sabaduquia and Fernando Dorio were separately hired by
petitioners between 1975 and 1977 to work at the Agus I site in Marawi
City. Because of a strike staged by the
workers in the project on June 2, 1986, private respondents were reassigned on
a periodic basis to the aggregate processing plant. At the time the strike was called, the construction of Agus I was
already in its final stage and
needed only maintenance services (Rollo, p. 6). When the strike was resolved in August 1988, petitioner Phesco
ceased extending the appointments of private respondents.

On May 3, 1989, private respondents filed a complaint against
petitioners for illegal dismissal, separation pay and damages with the Sub-Regional Arbitration Branch
XII, Iligan City (Rollo, p. 30). In
their answer, petitioners claimed that the termination of the services of
private respondents was valid since their services as project employees were no
longer needed. They also contended that
private respondents, being project employees, were not entitled to separation
pay.

In his Decision dated January 26, 1990, the Labor Arbiter ruled
that private respondents were regular employees, not project employees of the
aggregate processing plant, and in view of the cessation of business of the plant, they were entitled to
separation pay (Rollo, p. 64). The Labor Arbiter disposed as
follows:

“WHEREFORE, Premises Considered, the issue for illegal
dismissal is hereby ordered dismissed for lack of merit but the respondent is
hereby ordered to pay separation pay equivalent to one-half month salary for
every year of service to Nicanor Duro, Manuel Jabla, Aurelio Ermac, Rodolfo
Ramirez, Welito Sabaduquia and Fernando Dario” (Rollo, p. 69).

On appeal, the Fifth Division of the NLRC, Cagayan de Oro City,
in its Decision dated August 28, 1991 reversed the decision of the Labor
Arbiter and ruled:

“WHEREFORE, in view of the foregoing, the questioned Decision
is hereby SET ASIDE, and another one entered finding [petitioners] guilty of
Illegal Dismissal.

“[Petitioners] are hereby ordered:

(a) To reinstate Nicanor
Duro, Manuel Jabla, Aurelio Ermac, Rodolfo Ramirez, Welito Sabaduquia and
Fernando Dorio to their former positions without loss of seniority rights and
privileges; however, if reinstatement of complainants are no longer feasible, a
separation pay equivalent to one (1) month salary for every year of service
shall be awarded as follows:

(b) To pay complainants
back wages without qualifications, from the date of termination up to three (3)
years jurisprudential limitation:

(c) To pay attorney’s fees equivalent
to eight (8%) percent of the total monetary award or in the sum of P41,776.80.

“For lack of sufficient evidence, the claim for moral damages
is DENIED for lack of merit” (Rollo, pp. 24-25).

The NLRC denied the motion for reconsideration filed by
petitioners (Rollo, pp. 26-29).

Hence, the present
petition where petitioners charged the NLRC of grave abuse of discretion
in finding that petitioners were
guilty of illegal dismissal and that private respondents were regular employees
entitled to separation pay, back wages and attorney’s fees.

We dismiss the petition.

II

We see no reversible error in the decision of the NLRC.

Private respondents cannot be considered project
employees considering their length of service and the nature of their
employment, which is necessary in the business of petitioners.

Significantly, the NLRC found that petitioners did not limit the
supply of aggregates to the Agus I project site but also to the general
public. This fact is not denied by
petitioners, who instead argued that the sale of the aggregates to the public
was on a limited scale and only for accommodation (Rollo, p. 15).

The issue whether petitioner Phesco is selling aggregates to the public
on a regular basis or only for accommodation involves a question a fact, the
determination of which is best left with the NLRC (Wyeth-Suaco Laboratories,
Inc. v. National Labor Relations Commission, 219 SCRA 356 [1993]).

Petitioners alleged that at the inception of the strike, the Agus
I project was in its final stage and that there would be no more need of the
rock-crushing plant (Rollo, p. 6). Yet
from 1986 to 1988, private respondents were continuously employed thereat,
lending credence to private respondents’ claim that the rock crusher plant did
not only supply aggregates to the Agus I project but also sold aggregates to
the public.

In Capitol Industrial Construction Groups
v. National Labor Relations Commission,
221 SCRA 469 (1993), we ruled that where the employment of project
employees is extended long after the supposed project had been finished, the
employees are removed from the scope of project employees and they shall be
considered regular employees. Petitioners had repeatedly extended the employment contracts of private
respondents long after the completion of the Agus I project.

If private respondents were truly project employees, petitioners
should have presented proof that they submitted a report of termination to the
nearest public employment office of the services of their project employees
upon the completion of the construction project, as required by Policy Instruction No. 20 (Magante
v. National Labor Relations Commission, 185 SCRA 21, [1990]).

Anent the issue
that private respondents Ermac and Ramirez
were dismissed for their failure to report for work, we reiterate the finding
of the NLRC that petitioners failed to present proof that said respondents
indeed received notices to return to work (Rollo, pp. 62-63).

WHEREFORE, the petition for certiorari is
DISMISSED.

SO ORDERED.

Padilla, (Chairman), Davide, Jr., Bellosillo, and Kapunan, JJ., concur.