[2] Where a trade union requests collective bargaining to oppose the implementation of the restructuring itself, whether the employer has justifiable grounds to refuse or neglect such request (affirmative in principle)

[3] In a case where the defendant was prosecuted for violating the Trade Union and Labor Relations Adjustment Act on the request for special collective bargaining by a trade union notified of a restructuring plan by the company, the case holding that the defendant's refusal of the above request is justified on the ground that the trade union appears to have requested collective bargaining to oppose the actual implementation of restructuring itself

[4] The standard for interpreting the meaning of "agreement" in a case where a collective agreement between a trade union and a trade union has some provisions under which the employer has decided or implemented a collective agreement with respect to matters that fall under the nature of management right and cannot be subject to collective bargaining

[5] In a case where the defendant, the representative director of a company, was prosecuted for violation of the former Trade Union and Labor Relations Adjustment Act on the ground that he was dismissed without agreement with the trade union even though there was a collective agreement to enter into force “agreement” for business management reasons, the case affirming the judgment below that the defendant cannot be concluded to have violated the important reasons and procedures of dismissal among the contents of the collective agreement by interpreting the above “agreement”

1. As to the grounds of appeal by defense counsel (the violation of the Trade Union and Labor Relations Adjustment Act on the grounds of unfair labor practice)

A. Article 81 subparag. 3 of the Trade Union and Labor Relations Adjustment Act provides that "no employer may refuse or neglect the conclusion of a collective agreement with the representative of a trade union or a person delegated by a trade union or any other collective bargaining without any justifiable reason." Whether there is a justifiable reason for refusing or neglecting an employer to conduct collective bargaining should be determined based on whether it is difficult for an employer to expect performance of collective bargaining obligations under social norms by comprehensively taking into account the bargaining right of the trade union, the negotiation time, the negotiation place, the negotiation details, and their negotiation attitude as required by the trade union, etc. (see, e.g., Supreme Court Decisions 2005Do8606, Feb. 24, 2006; 2009Do8239, Dec. 10, 2009). Whether to conduct corporate restructuring belongs to the high-level managerial decision by a management body, which can not be subject to collective bargaining, and it can not be subject to such collective bargaining unless there are any special reasons attributable to the trade union's failure to implement such collective bargaining or modification.

B. Based on the evidence adopted, Defendant 2 reached an inevitable conclusion that restructuring is inevitable as a result of the management diagnosis from around August 1, 2007 to around 0, and the labor-management council held on January 31, 2008 to explain the management situation to the National Metal Trade Union (hereinafter “Labor Union”) to which Defendant 2 signed by the labor-management council of 00 workers belonging to the company as union members belongs, and notified Defendant 2 of an outline plan on the number of persons and number of departments to be recruited from around 15, 208 as of March 1, 208, and the number of persons subject to the voluntary retirement as of March 2, 2008. Defendant 1 notified Defendant 2 to the Trade Union of the fact that “Defendant 2 would not have been subject to the aforementioned collective bargaining consultation with the labor-management council of 00,000,000 won,” and Defendant 2 would not have been subject to such collective bargaining consultation with the labor-management association of 30,000 workers.”

Furthermore, the lower court: (a) stated that the collective agreement of this case was effective on March 31, 2008, and thus, it is extremely difficult for the labor union to demand renewal of the collective agreement from March 1, 2008; and (b) that part of the collective agreement can be carried out under separate labor-management agreement in the case of layoff for business reasons under Article 2(A) of the Convention; (c) that the collective agreement of this case was concluded on August 17, 2006, and that it would be difficult for the labor union to provide that such collective agreement would be carried out entirely by the labor union or by the labor union to be carried out after 80 days prior to the expiration of the period of validity; (d) that it would be difficult for the labor union to provide that the collective agreement of this case to be carried out entirely by the labor union and the labor union to be carried out after 10 days prior to the conclusion of the collective agreement, and that it would be difficult for one party to the amendment of the collective agreement to be carried out by the labor-management agreement.

C. However, we cannot accept the judgment of the court below for the following reasons.

According to the court below's judgment and the court below's evidence, the labor union's request for the renewal of collective bargaining agreement from March 1, 2008 to the above labor union 200, as recognized by the court below, began to request special collective bargaining on February 15, 2008. Rather, defendant 2's request for renewal of collective bargaining agreement around March 26, 2008 to the labor union 200, which is not an unfair collective bargaining agreement from April 3, 2008 to the labor union 200, which is not an unfair collective bargaining agreement from 208, and the labor union's request for renewal of collective bargaining from the labor union 208 to the labor union 200, which is not an unfair collective bargaining agreement. On the other hand, the labor union's request for renewal of collective bargaining and labor union 208, which is not an unfair collective bargaining agreement from 30,000,000's request to the labor union 20.

In light of the above legal principles, even if the status or working conditions of workers inevitably result in the implementation of the above restructuring, it cannot be said that there is no justifiable reason for Defendant 2 to refuse the above request for collective bargaining by the above company.

Nevertheless, under the premise that the demand for collective bargaining by the Trade Union and Labor Relations Adjustment does not practically oppose the implementation of the restructuring of Defendant 2, the court below held that Defendant 1, the representative director of Defendant 2’s company, refused the demand for collective bargaining by the Trade Union and Labor Relations Adjustment Act at least eight times constitutes an unfair labor practice under Article 81 subparag. 3 of the Trade Union and Labor Relations Adjustment Act and it is difficult to find that there is a justifiable reason. In so doing, the court below erred by misapprehending the rules of evidence and the legal principles on the subject of collective bargaining and the legitimate reasons for refusing collective bargaining, which affected the conclusion

2. Prosecutor’s grounds of appeal (a violation of the Trade Union and Labor Relations Adjustment Act on the grounds of violation of each collective agreement)

If there are some provisions of a collective agreement in which the employer determines or implements a collective agreement with a trade union on matters that fall under the essence of management rights that can not be subject to collective bargaining, the employer shall not easily recognize a partial waiver or significant restriction of management rights by paying attention to only one provision, and it shall interpret the meaning of "agreement" as stated in that provision by comprehensively examining the circumstances and circumstances of concluding such collective agreement, the relationship with other provisions of a collective agreement, and whether a trade union bears the responsibility for management based on the principle that the responsibility is followed (see Supreme Court Decision 9Do5380, Feb. 26, 2002, etc.).

For the reasons indicated in its holding, the lower court upheld the first instance judgment that acquitted Defendant 1, the representative director of Defendant 2, and Nonindicted 2, etc., of the instant collective agreement, on the ground that it is difficult to readily conclude that Defendant 1, who is the chief executive officer of the instant collective agreement, performed dismissal for business management reasons with the labor union and 31 workers, including Nonindicted 2, etc., without agreement, violated the material reasons and procedures for dismissal among the contents of the collective agreement, and further, it cannot be readily concluded that Defendant 1, etc. violated the consultation procedure.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error of law such as misconception of facts or misapprehension of legal principles against the rules of evidence.

3. Conclusion

Therefore, among the judgment below, the part of conviction against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)