[부당노동행위구제재심판정취소][공1998.5.1.(57),1206]
[1] In a case where a union shop agreement exists, whether an employer’s duty to dismiss a worker who withdraws from a trade union exists (affirmative)
[2] Whether the failure by an employer to dismiss a worker who has withdrawn from a trade union under the union shop agreement under the collective agreement constitutes an unfair labor practice in control and intervention of a trade union under Article 39 subparag. 4 of the former Trade Union Act (negative)
[3] The case holding that it cannot be deemed that an employer had an intent to engage in unfair labor practice without taking measures to dismiss four workers who have withdrawn from the workplace where the union shop agreement was concluded
[1] Article 39 subparagraph 2 proviso of the former Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996) and the so-called union shop agreement are "employment condition" that an employee is a member of a trade union with the representative nature as a means of force to strengthen the union's unity. Thus, if a collective agreement provides that an employee is required to be a member of a trade union pursuant to the union shop agreement, the employer is obligated to dismiss the withdrawing employee from the trade union even without any other explicit provision.
[2] The obligation of an employer to dismiss a worker who has withdrawn from a trade union under the union shop agreement under the collective agreement is merely an obligation under the collective agreement, and the non-performance of such obligation itself does not directly constitute an unfair labor practice of control and entry into the trade union under Article 39 subparagraph 4 of the former Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996).
[3] The case holding that in order to establish an unfair labor practice, an employer must have an intention to control or intervene in the organization or operation of a trade union, and it cannot be deemed that the employer did not take a measure of dismissal for four workers who have withdrawn from the trade union
[1] Article 39 subparagraph 2 of the former Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996) (see current Article 81 subparagraph 2 of the Trade Union and Labor Relations Adjustment Act) / [2] Article 39 subparagraph 4 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 5244 of Dec. 31, 1996) (see current Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act) / [3] Article 39 subparagraph 4 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 5244 of Dec. 31, 1996) (see current Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act)
[1] Supreme Court Decision 94Da15363 delivered on February 28, 1995 (Gong1995Sang, 1448), Supreme Court Decision 96Da28899 delivered on October 29, 1996 (Gong196Ha, 3535)
Korean Electric Technology Trade Union (Law Firm General Law Office, Attorneys Kim Ba-soo et al., Counsel for the plaintiff-appellant)
The Chairperson of the National Labor Relations Commission
Korea Electric Technology Corporation (Attorney Yoon Yong-ho, Counsel for the defendant-appellant)
Seoul High Court Decision 95Gu37003 delivered on September 20, 1996
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
1. According to the proviso of Article 39 subparagraph 2 of the former Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996), if a trade union represents at least 2/3 of the workers in the workplace concerned, a collective agreement under which an employee is employed as a member of the trade union is permitted. The provisions of such collective agreement and the so-called union shop agreement are "employment condition" that an employee becomes a member of the trade union with representative nature as a means of force to strengthen the union's unity. Thus, if a collective agreement provides that an employee is required to be a member of the trade union pursuant to the union union's union shop agreement, the employer is obligated to dismiss the employee who has withdrawn from the trade union without any other explicit provision (see Supreme Court Decision 96Da28899, Oct. 29, 196).
According to the facts acknowledged by the court below, Article 5 of the collective agreement concluded between the plaintiff union and the defendant joining the defendant (hereinafter the intervenor) provides that "the plaintiff union and the defendant shall work in the workplace which employs all the workers below the class of class (55 class)", Article 6 provides that "the employees falling under Article 5 shall work automatically as union members at the same time as the job placement," and Article 7 provides that "the company shall not unilaterally interpret the expulsion and withdrawal of union members and comply with the confirmation of union unions." Thus, it shall be deemed that the union shop agreement has been concluded under the ordinary flexible terms and conditions that the worker should be a member of the union, so the intervenor is obligated to dismiss the plaintiff union member accordingly.
Therefore, the court below erred in holding that even if the union shop agreement is reached, the employer is not obligated to dismiss the employee who left the union and the intervenor is not obligated to dismiss the employee who left the union.
2. However, the obligation of an employer to dismiss a worker who has withdrawn from a trade union under the union shop agreement under the collective agreement is merely an obligation under the collective agreement, and the nonperformance of such obligation itself does not directly constitute an unfair labor practice in control and entry into a trade union under Article 39 subparag. 4 of the same Act. In order to establish this unfair labor practice, the employer must have an intention to control or intervene in the organization or operation of the trade union, and as seen thereafter, the employer does not take the dismissal measures in light of the circumstances of this case, and therefore, it cannot be deemed that such intent was made to an intervenor.
Furthermore, the plaintiff's sending of documents that the intervenor did not have the obligation to dismiss the plaintiff's workers who left the entire workplace and did not have the intent to dismiss the plaintiff's workers constitutes the above unfair labor practice. However, according to the materials from the argument in this case, the plaintiff union's strike started from June 23 of the same year for wage negotiations and renewal of collective agreements with the intervenor, as the strike started from June 23 of the same year with the union union's complaint was long-term, some union members who were not participating in the strike were expelled or withdrawn from the union under the union shop system, and accordingly, the plaintiff union's explanation of the company's management guidelines was requested by the business development director on July 27 of the same year, and the plaintiff union's explanation of the above facts that the plaintiff union's rejection of the plaintiff's labor counsel or the union's rejection did not affect the plaintiff union's labor union's rejection of the above worker's answer to the plaintiff union's rejection of the plaintiff's labor counsel's rejection of the above worker's answer to the plaintiff's labor union's rejection.
Therefore, although the judgment of the court below erred in the reasoning, the conclusion that the intervenor's act did not constitute an unfair labor practice is justifiable, and eventually, the grounds of appeal are not accepted.
3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition.
Justices Lee Don-hee (Presiding Justice)