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FIRST DIVISION

G.R. No. Nos. 87389-90 June 18, 1990

RUDY M. MILLEZA, Petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION AND MARIWASA MANUFACTURING CORPORATION, Respondents.

Private respondent appealed therefrom to the NLRC which in due course, through its Second Division, promulgated a decision dated May 29, 1987, the pertinent and dispositive portions of which read as follows:

The decision appealed from is therefore modified by deleting separation pay and retaining only the retirement pay under the retirement plan of 1979. The computation should be based on his monthly income before he was retrenched on August 16, 1985 which is P3,105.00.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, premises considered the decision appealed from is hereby modified as above indicated. Except for this modification, the decision appealed from is hereby affirmed. ²chanrobles virtual law library

In an order dated February 23, 1988 Arbiter Amansec issued an order to the parties to comment in five (5) days on the computation of the retirement pay under the 1979 retirement plan and accrued vacation and sick leave benefits pursuant to a report dated February 10, 1988 submitted by the Acting Chief of Research and Information. The computation is P37,620.00 by way of retirement pay and P1,967.53 as accrued vacation and sick leave benefits. Petitioner objected on the ground that under the 1979 retirement plan he is entitled to P49,680.00 as retirement pay. Reference was made to Article XII under the word Vesting, particularly sections 1 and 2 thereof Private respondent on the other hand agreed with the computation. In an order dated July 5, 1988 Arbiter Amansec sustained the claim of petitioner in that:

WHEREFORE, respondent is hereby directed to pay complainant P49,680.00 as retirement pay and P1,967.53 as accrued vacation and sick leave benefits pursuant to the Decision dated September 30, 1986 of the Executive Labor Arbiter as modified by the NLRC in its May 27, 1987 Resolution within five (5) days from receipt hereof. Failing at this, let a writ of execution issue. ³chanrobles virtual law library

Hence, private respondent appealed to the NLRC which on October 28, 1988 rendered a decision, the dispositive part of which reads:

WHEREFORE, the appealed Order is hereby SET ASIDE and a new one entered ordering the respondent-appellant to pay complainant-appellee P37,620.00 as retirement pay and P1,967.53 as accrued vacation and sick leave benefits for a total sum of P39,587.53 pursuant to the NLRC derision promulgated May 27, 1988. Let this case be remanded immediately to the Executive Labor Arbiter a quo for proper disposition. No other pronouncement.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. ⁴chanrobles virtual law library

Hence, the herein petition for certiorari alleging the following:

a. Public Respondent NLRC, Second Division, committed grave abuse of discretion amounting to lack of jurisdiction in setting aside the Order (Annex 'H') of Executive Labor Arbiter Arthur Amansec considering that the said Order was based on the authentic and genuine Retirement Plan of 1979.chanroblesvirtualawlibrarychanrobles virtual law library

b. Public Respondent NLRC, Second Division, likewise committed grave abuse of discretion in that its Decision of October 28, 1988 (Annex 'I') - is contrary to the evidence on record particularly that portion on the computation of the retirement pay of the petitioner. ⁵chanrobles virtual law library

The petition is devoid of merit. There is no question that the decision of the NLRC dated May 29, 1987 had become final and executory. The NLRC made the following disquisition:

Consequently, complainant is entitled to only one benefit namely, the benefits under separation pay or under the applicable retirement plan, whichever is more advantageous to him. Furthermore, Section 5, Article V on severance benefit of either the 1979 or 1982 Retirement Plan provides that "any member who resigns or is terminated or separated by the company for causes not due to his own fault, shall be entitled to receive a sum equivalent to a percentage of his Retirement benefit in accordance with the vesting schedule below. Such benefit shall form part of and not in addition to the benefits required by the Termination Pay Law as embodied in the new Labor Code Law. (sic) ⁶chanrobles virtual law library

On the basis thereof the NLRC in its decision dated October 28, 1988 after reproducing the foregoing disquisition, held that Article V, Section 6 of the Retirement Plan of 1979 provides:

Sec. 5. Severance Benefit. - A member who resigns or is terminated or separated by the company for causes not due to his own fault, misconduct or material neglect shall be entitled to receive a sum equivalent to a percentage of Ms Retirement Benefit in accordance with the vesting schedule below. Such benefit shall form part of and not an addition to the benefits required by the Termination Pay law as embodied in the New Labor Code Law.

From the foregoing, it is crystal clear that the computation of Retirement benefits submitted by Mr. Ricardo O. Atienza dated February 18, 1988 is correct and the proper interpretation of the Decision of the Second Division dated May 27, 1988 which is now final and executory. (sic) Thus the total amount due complainant-appellee is as follows: chanrobles virtual law library

P5,105.00 x 75% x 16 yrs. P37,620.00 chanrobles virtual law library

Accrued vacation & sick chanrobles virtual law library

leave benefits as per chanrobles virtual law library

decision 1,967.53

P39,587.53 ⁷

We agree. The final and executory decision of the NLRC cannot be modified by the labor arbiter or in this proceeding. Moreover, the factual findings of the NLRC are conclusive on this Court if supported by substantial evidence. Petitioner argues that it is Article XII of the 1979 retirement plan under the heading vesting which should be the legal basis of the computation not Article V, Section 5, thereof. This issue should have been raised before the NLRC before the decision of May 29, 1987 became final.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition is DENIED for lack of merit with costs against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.