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Republic of the Philippines

Department of Labor and Employment


NATIONAL LABOR RELATIONS O!!ISSION
Regional Arbitration Branch
Cordillera Administrative Region
PEGANTO M. AGUINSOD,
Complainant,
-versus-
INTERNATIONA S!IS
DE"EOPMENT, INC.
An# its Presi#ent E"I S. DE MESA,
Respon#ents.
$------------------------------------------------$
POSITION PAPER O% T&E COMPAINANT
PEGANTO M. AGUINSOD
'it( all #ue respe)t an# reveren)e *or t(e
&onora+le a+or Ar+iter.
Peganto M. Aguinsod, through the undersigned and unto the Honorable Labor
Arbiter, respectfully, reverently, and humbly avers as follows:
STATEMENT O% T&E CASE
At the core of the instant Complaint is the issue of respect and good faith
which parties owe to each other when they decide to bind themselves by contract.
, A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
NRC Case No. RA0-CAR-,,-1234-,1
%OR
IEGA DISMISSA
his issue comes to the fore even more so when the one of the parties to the
contract is a laborer, whom the fundamental law protects from e!ploitation and unfair
treatment.
he Complainant had a "#$month contract with the %espondents, for him to be
able to wor& overseas as a scaffolder foreman in Abu 'habi, (nited Arab )mirates
*(A)+.
He was lured away from Abu 'habi by the representation that he was an
e!emplary employee and that he would best serve the principal employer in Africa, on
the same salary and with the same benefits as stated in his contract. (pon arrival in
the Philippines however, this promise and representation sadly did not materiali,e.
Contrary to the reassurances made to the Complainant, there were no available
African wor&ing visas for the position of scaffolder foreman.
he Complainant is now see&ing redress before the Honorable Labor Arbiter,
for the recovery of the salaries corresponding to the une!pired term of his overseas
employment contract.
-o compromise between the parties was reached despite no less than three *.+
conferences held before this Honorable /ffice. hus, the parties were directed to
prepare their respective Position Papers. his is the Complainant0s humble
compliance with the Honorable Labor Arbiter0s order.
T&E PARTIES
3 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
he Complainant is of legal age, married, 1ilipino and a resident of 2#"3
4roo&spoint, Aurora Hill, 4aguio City5
he %espondent Company is a recruitment agency duly organi,ed under the
laws of the Philippines and doing business at 67.8 Curie 9treet, Palanan, Ma&ati City
where it may be served with summons and other court processes. he individual
%espondent 'e Mesa is its President.
STATEMENT O% T&E %ACTS
". 9ometime in the month of 9eptember #::8, the Complainant read in Manila
4ulletin newspaper that the %espondents were in need of /verseas 1ilipino
;or&ers to be sent to the (nited Arab )mirates5
#. After reading the classified ad, the Complainant prepared the documents that
he needed therefor. 1rom 4aguio he travelled by bus to Manila in order to
apply for the position of 9caffolder 1oreman5
.. ;hen the Complainant found his way to %espondents0 office, he saw a note at
on the bulletin board that their agency was awarded by the Philippine /verseas
)mployment Administration *P/)A+ as P/)A op Performer < Award of
)!cellence Awardee. (pon seeing the post, the Complainant felt more
confident to apply. He &new that he would be sent to the (nited Arab )mirates
legally as an overseas wor&er5
7. he %espondents successfully processed the Complainant0s documents.
hereafter, the Complainant was informed that he was one of the persons hired
to wor& under )A9)%- 4)CH)L C/MAPA-= L'., the principal
employer, in Abu 'habi, (A). He then attended the Pre$'eparture /rientation
9eminar of the %espondents and was issued a Certificate of Attendance clearly
stating that his s&ill>occupation was that of a scaffolder foreman. A Copy of
said Certificate of Attendance is hereby attached as Anne! ?A@5
5 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
6. /n /ctober #A, #::8, the Complainant returned to the respondents0 office and
affi!ed his signature to the Manual Contract of )mployment which stated he
was employed by the )astern 4echtel Company, L'. he said Manual
Contract of )mployment duly signed by the parties is hereby attached as
Anne! ?4@5
B. he contract clearly states that the duration thereof would not e!ceed twelve
*months+ and that the Complainant0s employment would start on the date of his
departure5
A. Ct was also stated in the contract that the Complainant was employed to
perform services in the Dob classification of 1oreman$9caffolder and to wor&
on the )mployer0s A9A4 EA9 ')F)L/PM)- PHA9) CC *AE'$CC+ proDect
with a monthly base salary of A)' #,87: *two thousand nine hundred forty
dirham+ for a full forty$eight *73+ hours base wor&wee&, to be paid in (9
'ollars5

3. /n /ctober .:, #::8, the Complainant attended the Pre$'eparture /rientation
seminar given and reGuired by the %espondents. Also on the said date, the
%espondents gave the Complainant a Euarantee Letter stating that )astern
4echtel Company representatives would meet him at the Abu 'habi airport. A
copy of 9aid guarantee letter is attached as Anne! ?C@5
8. /n -ovember :#, #::8, the Complainant, together with other wor&ers, flew to
Abu 'habi to commence their employment. As stated in the Manual Contract
of )mployment, the Complainant wor&ed as foreman scaffolder on the A9A4
EA9 ')F)L/PM)- PHA9) CC *AE'$CC+ P%/H)C5
":. Cn the month of 'ecember #::8 the Complainant was handed a memo. he
memo stated that the %espondents received a notice that the 4echtel Company
was inviting some of its e!emplary wor&ers to transfer to its other proDect in
Africa. Cncluded in the notice was a master list were names of wor&ers who
were being as&ed to transfer. he Complainant was among these wor&ers5
6 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
"". After seeing his name included in the master list of the wor&ers, the
Complainant went to see and tal&ed to a certain Hohn 9anche,, the foreman
superintendent in the wor& site, to as& the latter about the supposed transfer of
wor&ers to Africa5
"#. 9anche, then confirmed the news to the Complainant. 9anche, told him ?;en
pare, walang problema basta &ita$&ita tayo duon, lahat din tayo pag natapos
itong taon na ito, lahat din tayong mga trabahador dito sa (.A.). lilipat din sa
Africa &asi yun ang isang branch *yes, friend, there is no problem with this
transfer we are all going to see each other in Africa anyway after this year, the
other branch of Eastern Bechtel LTD.+@5
".. ;ith the reassurance of his supervisor Mr. 9anche,, the Complainant agreed to
be transferred but only on the condition that he would wor& in Africa for the
same salary rate and position. Mr. 9anche, told him that he had nothing to
worry about5
"7. /n 1ebruary ":, #:":, the principal employer posted the names of wor&ers
who were to return to the Philippines and process their visas for Africa before
being transferred thereto, through the %espondents. he Complainant saw his
name on the list so he prepared his things for the flight, the e!penses for which
were shouldered by the principal employer5
"6. /n 1ebruary "B, #:":, the Complainant arrived in Manila and went straight
home to 4aguio City to see his family before proceeding again to the office of
the %espondents5
"B. After a wee& in 4aguio, he returned to Manila for the processing of his visa
with the %espondents. (pon his arrival in the %espondents /ffice, the
Complainant was given a letter commending him for a Dob well done,
?inviting@ him to wor& in other proDects of the principal employer. 9aid letter is
hereto attached as Anne! ?'@5
"A. he Complainant then was informed by the officer in$charge in the
%espondents0 office that the only available visa is for crew wor&er, and that as
2 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
of that time, there were no available visas for foreman, the position which the
Complainant held in Abu 'habi5
"3. he officer in$charge then told the Complainant ?mag$ano &a nalang &a as
crew, pagdating mo duon mag hang$up &a *just sign up as crew first, and then
when you get there, you can hang up+.@ he term ?hang$up@ means that one
may apply as crew and when one was already at the Dob site, he can wor& under
a different position, in the Complainant0s case, as a scaffolder foreman. he
Complainant did not accede to this suggestion as he &new that the principal
employer had no policy of hiring a wor&er for a designated position and then
changing the said position later on5
"8. he Complainant declined the offer. He &new that what the officer$in$charge
was telling him was not in consonance with the principal employer0s policy.
-owhere was it stated or practiced that a wor&er could apply as crew but
eventually wor& as foreman in the Dob site. he Complainant refused to apply
as crew and stated that he would Dust wait for his foreman visa5
#:. he in$charge Dust told the Complainant ?(rayem lang garud ah, nu han mo
&ayat daytoy crew *just wait then if you do not want to apply as crew+5@
#". he Complainant found a place for board and lodging in Manila while waiting
for his foreman visa5
##. 4etween the month of March to April, the %espondents0 representative called
the Complainant three times as&ing him ?ayaw mo ba itong sa crew papuntang
Africa rin namanI *dont you want to apply as crew, youre going to be sent to
Africa anyway+. he Complainant declined and replied, ?hihintayin &o nalang
yung visa papuntang Africa para sa mga foreman *! will just wait for the
foreman "isas+@5
#.. he Complainant refused the %espondents0 entreaties for him to wor& as crew
for )astern 4echtel Company, L'. since he was a scaffolder foreman for the
latter, as stated in the contract he signed. he salary of a crew wor&er is much
lower than the salary of a scaffolder foreman5
4 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
#7. 1rom 1ebruary to August #:":, the Complainant waited for his visa but no visa
for scaffolder foreman came. Hobless and Guic&ly running out of money and
resources in Manila, he decided to go bac& to home to 4aguio5
#6. he Complainant spent the remaining nine months of his une!pired contract
here in the Philippines, as the %espondents failed to deploy him to Africa. Cn
effect, from the moment the Complainant returned to the Philippines on
1ebruary "6, #:": up to the supposed end of his overseas employment contract
twelve *"#+ months from -ovember #, #::8, he had already been
constructively dismissed although he was made to believe that he was to finish
the remainder of his employment contract in Africa5
#B. (pon the Complainant0s return to his place of residence, he filed the instant
complaint against the %espondents on -ovember #, #:":5
#A. his Honorable /ffice scheduled -ovember #B, #:": and 'ecember 8, #:":
as conferences dates for the Complainant and %espondents to meet. /n said
dates, counsel for the %espondents appeared and implored the Complainant
?pangaasi yu man ta areglo pay laeng, -u mabalin &et dumawdawat a& ti
areglo. Han &a pay umuna apan ti Attorney ta &atungtung &o pay &liyente& nu
anya &unada ta &atuntungen da si&a nga usto. Agte!t a& to &en&a nu haan
agte!t &a &anya& *please, let us settle this, there is no need to pursue this
complaint. #lease do not see$ the ser"ices of counsel first. Let me tal$ to my
clients first and as$ them to spea$ with you amicably. Let us $eep in touch+@5
#3. he Complainant agreed to the entreaties of opposing counsel. he
Complainant and counsel for the %espondents e!changed cell phone numbers
for them to be able to stay in contact with each other5
#8. /n 'ecember ##, #:":, the Complainant sent an 9M9 message to
%espondents0 counsel as&ing ?9ir, &umustaI Anong balita sa C.9.' *%ir, any
news& 'hat did the (espondents say&+@5
.:. he %espondents0 Attorney replied ?tumatawad sila na &ung pwede daw hatiin
yung buwan *my clients are as$ing if you would agree to recei"e half of your
7 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
claim+@ Although the Complainant &new that he deserves to receive the full
eGuivalent of the une!pired portion of his contract, nine *8+ months, he acceded
to the reGuest of the %espondents0 counsel, if only to amicably settle the
matter5
.". -o further communications between the Complainant and %espondents0
counsel ensued. /n the third conference before the Honorable Labor Arbiter
set on Hanuary B, #:"", the %espondents0 attorney again tried to re$negotiate,
although the Complainant already agreed to the compromise offer earlier
made5
.#. %espondents through counsel offered anew to pay Dust one month of the
une!pired portion of the contract. he Complainant was told ?(ray &et idi
agawid &ayo, 1ebruary "6, #:":, ada met ti bonus yu nga one month *after all,
when you came bac$ from Abu Dhabi on )ebruary *+, ,-*-, you were gi"en a
bonus of one month+ @5
... he Complainant answered the %espondents0 Attorney ?%ules ti company
dayta nga Attorney, ada dyay one month give away nga maala every wor&er da
*But attorney, that is part of the principal employers rules, e"ery wor$er
recei"es a one month gi"e away+@5
.7. he third conference for amicable settlement failed because the Complainant
did not agree to the reGuest of the %espondents, which was unconscionable and
struc& in bad faith, after the Complainant already accepted the previous offer of
half his original claim5
.6. 4y virtue of the unfair and unDust acts of the %espondents in ma&ing the
Complainant believe that he had the same Dob and position waiting for him in a
different country, based on his overseas employment contract, he has suffered
serious an!iety, wounded feelings and sleepless nights. he Complainant even
turned down employment in Canada because he was waiting to be deployed by
the %espondents as scaffolder foreman in Africa5
8 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
.B. 1urthermore, the unfair and unconscionable actuations of %espondent
Company, and their negotiations made in bad faith, left the Complainant no
other option but to pursue the instant case and eventually employ the services
of counsel for the preparation of his Position Paper. He has also incurred travel
and other miscellaneous e!penses in the pursuit hereof5
ISSUES
'&ET&ER T&E COMPAINANT 'AS IEGA9 DISMISSED
'&ET&ER T&E COMPAINANT IS ENTITED TO T&E PA9MENT O%
T&E UNE:PIRED PORTION O% &IS O"ERSEAS EMPO9MENT
CONTRACT
'&ET&ER T&E COMPAINANT IS ENTITED TO DAMAGES
ARGUMENTS AND DISCUSSION
T(ere is no +asis in la; an# in t(e
overseas emplo<ment )ontra)t to
su+stantiate t(e pre-termination o* t(e
Complainant=s emplo<ment.
he Complainant was commended for being an e!emplary wor&er by the %espondents
and the principal employee. ;hile he was in Abu 'habi, he was told that he was to be
transferred to the principal employer0s wor& site in Africa.
he Complainant was supposed to render full, satisfactory and continuous
service for the principal employer for a period not to e!ceed welve *"#+ Months.
"
He
was even highly commended by the %espondents for his services rendered for the
principal employer and has not given Dust cause for the termination of his services.
"
Clause ".. 'uration of Assignment, Page #, Anne! ?4.@
> A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
his was the very reason why he was supposed to transfer to the principal employer0s
wor&place in Africa.
He was not even informed that his services under the overseas employment
contract were already being terminated. he Complainant believed in all honesty and
good faith that he was merely going to be transferred to a different wor& site, under
his original contract.
As a matter of fact, the Complainant was promised even when he was in Abu
'habi, that he was among the wor&ers to be transferred to another wor& place of the
principal employer in Africa. he Complainant returned to the Philippines in the
hopes of being transferred to a different wor& place, without any fundamental
demotion in position and in pay.
-either was there any authori,ed cause for the pre$termination of the
Complainant0s overseas employment contract. o reiterate, as this fact cannot be
emphasi,ed enough, the Complainant was repatriated and he returned to Manila with
the promise that his papers, travel and other necessary documents for his transfer to
the wor& site in Africa would be processed by the %espondents in the Philippines. He
did not &now that this meant the end of his employment as scaffolder foreman.
he %espondents reneged on this promise and accordingly breached their
contract when they could not send the Complainant to Africa as a scaffolding foreman
for the remainder of the term in the overseas employment contract. He was reassured
of his transfer to Africa.
,1 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
Cnstead, the %espondents &ept trying to ma&e the Complainant disregard his
original overseas employment contract and reapply as a crew wor&er for the principal
employer in Africa, whose salary and Dob description were lower and different,
respectively, from the salary as provided in his contract and the duties he was
supposed to render as scaffolding foreman. he term stated in the original overseas
contract lapsed without the Complainant being deployed.
(nder the 9ec. ": of the Migrant ;or&ers0 Act *%.A. 3:7#+ as modified by the
decision of the 9upreme Court in 9errano v. Eallant Maritime 9ervices, Cnc. et al.
#
, ? !
! ! Cn case of termination of overseas employment without Dust, valid or authori,ed
cause as defined by law or contract, the wor&ers shall be entitled to the full
reimbursement of his placement fee with interest of twelve percent *"#J+ per annum,
plus (is salaries *or t(e une$pire# portion o* (is unemplo<ment )ontra)t
*emphasis supplied+.@
T(e Complainant ;as in e**e)t
ille-all< #ismisse# +< t(e Respon#ents.
&e ;as ma#e to ;ait *or t(e
*ruition o* a representation t(at never
materiali?e#. T(e a)ts o* t(e
Respon#ents -ive rise to an a)tiona+le
;ron- )ompensa+le +< ;a< o*
#ama-es.
he Complainant, upon returning to the Philippines from Abu 'habi only after
serving a little over three *.+ months of the original term of twelve *"#+ months in the
overseas employment contract, spent the rest of the said period waiting to be deployed
as scaffolding foreman.
#
E.%. -o. "BAB"7, March #7, #::85 which struc& down as unconstitutional the subDect clause ?or for three
moths for every year of the une!pired term, whichever is less@
,, A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
He duly cooperated with the %espondents when he was told that he was merely
going to be transferred from Abu 'habi to Africa, believing in bona fides that he
would still have the same position and salary waiting for him in another continent.
'uring the period from 1ebruary "6, #:":, when the Complainant returned to
the Philippines up to the supposed e!piry of the overseas employment contract on
-ovember #, #:":, he was constrained to spend his time going bac& and forth to the
%espondents Ma&ati /ffice, Guerying on end if there were any available scaffolding
foreman openings in the principal employer0s African wor& site. 'uring that entire
period Complainant was away from his home and his family, unproductive, and
without wor&. As a bread winner for his family, the Complainant0s unemployment for
the remainder of the period stated in his overseas employment contract has caused
untold hardships for himself and his family.
he %espondents had the obligation to deploy the Complainant as a scaffolder
foreman for the duration of the contract which he duly signed with the principal
employer, through the office of the %espondents.
heir failure to do so upon his return to the Philippines, and the insidious
manner wherein the %espondents tried to ma&e the Complainant apply for a different
Dob position with a much lower salary clearly contravenes the tenor of their obligation
to the Complainant.
9eeing that his overseas employment contract had ended without him being
deployed to Africa as he was promised and as he was made to believe, he immediately
returned home and filed the instant complaint for illegal dismissal.
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NRC CASE NO. RA0-CAR ,,-1234-,1
T(e Respon#ents ma#e t(e
Complainant +elieve t(at (e ;as -oin-
to +e trans*erre# to A*ri)a un#er t(e
same terms an# )on#itions in t(e
overseas emplo<ment )ontra)t (e
ori-inall< si-ne#. T(e< (ave *aile# to
#o so, an# a))or#in-l<, (ave *aile# to
.eep t(eir en# o* t(e +ar-ain t(at t(e
Complainant ;as to +e emplo<e# *or a
*ull perio# not e$)ee#in- t;elve @,3A
mont(s.
Had it not been for the representations of the %espondents representatives to the
wor&ers in Abu 'habi, the complainant would not have agreed to return to the
Philippines.
he proDect which the principal employer was wor&ing on was not yet
completed when the Complainant left the wor& site therein. 1urthermore, he was told
that he was going to be transferred to Africa with the same terms and conditions as
stated in his overseas contract of employment. Ct was to his great surprise and dismay
that there were no available openings for scaffolder foreman in Africa, upon his return
to the Philippines.
he Complainant was unDustifiably made to e!pect that he had the same
position and salary waiting for him in the principal employer0s proDect in Africa. Little
did he &now during that time that this was Dust a ploy to end his contract prematurely.
(pon his return to the Philippines, the Complainant was then commended for
his e!cellent service and given a letter ?inviting@ him to participate in ?new
assignments@ for the principal employer. he %espondents sent him this letter
,5 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
&nowing fully well that the term of the Complainant0s original contract had not yet
e!pired, as there was still the remaining nine *8+ months.
hereafter, the %espondents tried to ma&e the Complainant to agree to re$apply
anew as a crew wor&er for the principal employer, a position that entailed a demotion
in pay and in position. his is why the Complainant refused and instead opted to wait
for an opening as scaffolding foreman.
he effect of the failure of the %espondents to deploy the Complainant to
Africa on the same terms and conditions in the overseas employment contract he
signed with them considering that the duration of the said contract has not yet e!pired
constitutes breach of contract.
he Complainant has also incurred e!penses during the entire time of his stay
in Manila while waiting for the %espondents to deploy him as a scaffolder foreman in
Africa. he representations of the %espondents that he had nothing to worry about
when he left his post in Abu 'habi in order for him to be deployed eventually to
Africa without diminution in salary and position only for this promise to fail has
caused the Complainant sleepless nights, mental anguish and an!iety.
he %espondents should be prevented from committing similar acts of ma&ing
representations to other overseas 1ilipino wor&ers, repatriating them prior to the term
stated in their contracts in order for them to be redeployed anew to a different wor&
site abroad, under the same terms and conditions, when in truth and in fact, there are
no available openings that correspond to the position for which the wor&er applied
,6 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
for. hey should be penali,ed as a warning for them not to treat others in the overseas
wor& force by being made to pay e!emplary damages in favor of the Complainant.
Lastly, the Complainant was constrained to hire the services of counsel for the
preparation of his Position Paper due to the unDustified acts of the %espondents who
bargained with him in bad faith.
PRA9ER
;H)%)1/%), it is most humbly and respectfully prayed that the Honorable
Labor Arbiter render Dudgment declaring that the Complainant has been illegally
dismissed by the %espondents, and order the payment of his salaries for the nine *8+$
month period corresponding to the term of the contract that the Complainant was
unable to serve due to his repatriation without Dust or authori,ed cause, including
other benefits which he is entitled to, as well as moral and e!emplary damages5 and
":J of the total award as reasonable attorney0s fees.
he Complainant li&ewise prays for such other reliefs and remedies Dust and
eGuitable under the premises.
4aguio City, this 7
th
day of 1ebruary #:"".
Bani)e Marie N. Domo-an
Counsel *or t(e Complainant
%oll -o. 63666
C4P 4aguio$4enguet Chapter
Lifetime Membership -o. 37.83A>Han. "8, #:""
P% -o. :73:6:.>Han. ., #:""
Domo-an a; O**i)e
(nit #:6$4 Lyman /gilby Centrum
)'-CP Compound,
,2 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1
2.63 Magsaysay Ave., 4aguio City
Cop< *urnis(e#C
Cnternational 9&ill 'evelopment
< Levi 9. 'e Mesa, Pres.
67.8 Curie 9t.
Palanan Ma&ati City
E:PANATION
'ue to time and distance constraints, the foregoing position paper was served through
registered mail.
Bani)e Marie N. Domo-an
Counsel *or t(e Complainant
Cop< *urnis(e#C
Cnternational 9&ill 'evelopment
< Levi 9. 'e Mesa, Pres. %egistry %eceipt:
67.8 Curie 9t. 'ate:
Palanan Ma&ati City
,4 A-uinso# v. International S.ill Development In)., / evi S. De Mesa
NRC CASE NO. RA0-CAR ,,-1234-,1