[1] The purpose or purpose of the Trade Union and Labor Relations Adjustment Act to promote collective bargaining procedures by introducing the simplification of bargaining windows to multiple trade unions

[2] Whether the duty of fair representation under Article 29-4(1) of the Trade Union and Labor Relations Adjustment Act ought to be observed in the course of collective bargaining (affirmative)

[3] In a case where a representative bargaining trade union undergoes a pro-con voting procedure by a member's general meeting or a council of delegates instead of a member's general meeting with an employer on a draft provisional collective agreement prepared in the course of collective bargaining with an employer, whether the representative bargaining trade union may readily conclude that it violates the duty of procedural representation solely on the ground that it did not give an opportunity to participate in the procedures for simplification of bargaining windows

[1] Articles 5, 29(1), and 29-2(1) of the Trade Union and Labor Relations Adjustment Act / [2] Article 29-4(1) of the Trade Union and Labor Relations Adjustment Act / [3] Articles 29(2), 29-2, 29-4(1), and 41(1) of the Trade Union and Labor Relations Adjustment Act; Article 14-7 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act

[1] [2] Supreme Court Decision 2017Da218642 Decided August 30, 2018 (Gong2018Ha, 1914), Supreme Court Decision 2017Du3772 Decided October 31, 2019 (Gong2019Ha, 2263) / [1] Supreme Court Decision 2016Du36956 Decided October 31, 2017 (Gong2017Ha, 2198)

National Metal Trade Union (Law Firm Woo, Attorneys Kim Jong-Un et al., Counsel for the defendant-appellant)

2. The term “the term “the term” means the term “the term” or “the term” means “the term” or “the term” means “the term.

Convenn trade union and one other (Attorneys Yu Sung-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2016Na2057671 decided August 18, 2017

All appeals are dismissed. The costs of appeal by the Plaintiff are assessed against the Defendants, and the costs of appeal by the Plaintiff are assessed against the Plaintiff. The costs of appeal by the Plaintiff are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on the Plaintiff’s grounds of appeal

A. 1) Under the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), an employee may freely organize a trade union or join it (Article 5), and the representative of a trade union may request an employer to conduct collective bargaining on behalf of the trade union or its members (Article 29(1)), but if a trade union exists in a single business or workplace, regardless of its structural form, the representative of a representative bargaining trade union determined in accordance with the procedures for simplification of bargaining windows shall request the employer to conduct collective bargaining (main sentence of Article 29-2(1)). The introduction of the system for simplification of bargaining windows for multiple trade unions to promote collective bargaining procedures by introducing the system for simplification of bargaining windows for multiple trade unions is intended to establish an efficient and stable collective bargaining system (see, e.g., Supreme Court Decisions 201Du3681, Oct. 31, 2017; 2012Du3684, Aug. 16, 2016).

2) A) A trade union that has not become a representative bargaining trade union under the system of simplification of bargaining windows is unable to independently exercise its right to collective bargaining. As such, the Trade Union Act imposes an obligation of fair representation on an employer and a representative bargaining trade union to protect a trade union that has not become a representative bargaining trade union (Article 29-4(1)) so that it does not discriminate against any trade union that has participated in procedures for simplification of bargaining windows with the employer or its members without reasonable grounds. The duty of fair representation serves as an institutional mechanism to ensure that the fundamental contents of the right to collective bargaining guaranteed by the Constitution are not infringed. In light of the purport and function of the duty of fair representation, etc., the duty of fair representation should be sufficiently followed not only in the contents of collective agreement, which is the result of collective bargaining, but also in the process of collective bargaining, but also in the process of collective bargaining and the process of collecting opinions from a small number of representative trade unions without reasonable grounds to the extent that such duty is not reasonable in the process of collective bargaining and the process of collective bargaining.

B) Meanwhile, in the event that a representative bargaining trade union undergoes a pro-con voting procedure on a provisional collective agreement agreement proposal prepared by a representative bargaining trade union in the course of collective bargaining with an employer (hereinafter referred to as “provisional agreement proposal”), even if the representative bargaining trade union did not grant its members an equal opportunity to participate in the procedure or did not consider their pro-con intent in the process of determining whether to adopt a provisional agreement, it cannot be readily concluded that the representative bargaining trade union violated its procedural representative duty. The reasons are as follows.

(1) Considering the purport or purpose of the system of simplification of bargaining windows and the contents and purport of Article 29(2) of the Trade Union Act, the representative of a representative bargaining trade union has an independent right to conclude a collective agreement on behalf of the trade union participating in the procedures for simplification of bargaining windows and all members of the trade union participating in the procedures for simplification of bargaining windows, in principle, cannot be deemed binding on the intent of a minority trade union or

(2) Even though the rules of a representative bargaining trade union stipulate that a provisional agreement should be made by vote of union members, it is only an internal procedure prepared for decision-making by union members belonging to the representative bargaining trade union, not an internal procedure required by law.

(3) Article 29-2 of the Trade Union Act provides for the simplification of bargaining windows, and Article 14-7 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides for detailed provisions on the criteria for calculating the number of union members necessary for the establishment of a representative bargaining trade union upon delegation. The latter part of Article 41(1) of the Trade Union Act provides that an industrial action may be conducted only when the whole union members of the trade union which participated in the procedures for the simplification of bargaining windows go through the pro-con voting procedures. However, in relation to pro-con voting on a provisional agreement, not only whether such pro-con voting is carried out, but also there is no provision on whether each trade union participating in the procedures for the simplification of bargaining windows has carried out pro-con voting, an undertaking agency, method of implementation, quorum, etc., and how to coordinate if any other provisions exist in the different regulations.

B. As to the grounds of appeal Nos. 1 and 2

1) After compiling the adopted evidence, the lower court determined as follows: (a) based on its adopted evidence, found facts as indicated in its reasoning; and (b) based on the process of simplification of bargaining windows, determined as follows: (c) whether Defendant 200 trade unions, Hanjin Industries trade unions, two industry trade unions, and Lee Hyba Korea Ltd. (hereinafter “Defendant 200 U.S. trade unions”) committed collective bargaining to conclude collective agreements in 2014 (or amendment of collective agreements in 2013 and collective bargaining to conclude wage agreements in 2014, in the case of Defendant A20 U.S. trade unions; (d) breach of the duty of fair representation in the course of collective bargaining (or collective bargaining to conclude collective agreements in 2014; (e) violation of the duty of information and gathering opinions with respect to Plaintiff 200 trade unions; (e) it is difficult to view that there was intention or negligence to recognize tort liability against Defendant 200 U.S. trade unions, etc. solely based on the evidence submitted by the Plaintiff.

2) Examining the following circumstances revealed by the reasoning of the judgment below in light of the legal principles as seen earlier, it is difficult to deem that Defendant 200’s trade union, etc. has discriminated against Plaintiff 2’s subdivision by abusing discretionary power due to the omission of or without sufficiently undergoing the procedures for providing information and gathering opinions on basic and important matters against Plaintiff 200 trade union. Moreover, even if Defendant 200’s trade union, etc. did not equally give Plaintiff 200’s members an opportunity to participate in the relevant procedure with respect to voting on the interim agreement or did not decide whether to adopt a provisional agreement by taking into account their pros and cons on an equal basis, it cannot be deemed to have reached the degree of violation of the duty of fair representation. Ultimately, Defendant 200’s trade union, etc. cannot be deemed to have violated the duty of fair representation. Accordingly, the lower court’s conclusion denying tort liability is justifiable. This part of the ground of appeal is with respect to the legal principle of intentional negligence or negligence due to the violation of the duty of fair representation, which does not affect the conclusion of the judgment.

A) The collective bargaining process conducted by Defendant 200 U.S. Trawls Trade Union

(1) On March 6, 2014, Defendant 200 U.S. trade union (hereinafter “Defendant 200 U.S. trade union”) demanded that Plaintiff 2 cooperate with Plaintiff 115 members of Plaintiff 2’s branch to conduct a survey for collective bargaining regarding collective agreements in 2014. Plaintiff 2 demanded that Plaintiff 2’s branch explain the demand for collective agreements in 2014.”

(2) On March 20, 2014, Defendant 200 U.S. trade union drafted a draft of the collective agreement demand on March 20, 2014, and demanded on April 8, 2014 to explain the Plaintiff’s branch’s demand.

(3) On April 15, 2014, Plaintiff Subdivision and Defendant 200 parent union opened a representative meeting in relation to the collective agreement in April 15, 2014. At the time, Plaintiff Subdivision explained to Defendant 200 parent union the proposal for Plaintiff Subdivision’s demand.

(4) On May 28, 2014, Defendant 200 U.S. trade union demanded that Defendant 200 U.S. trade union “a representative meeting be convened.” At an open representative meeting on May 30, 2014, Defendant 200 U.S. trade union explained to Plaintiff 200 U.S. trade union’s branch meeting the proposal.

(5) On October 23, 2014, Defendant 200 U.S. trade union drafted a provisional agreement draft with 2014, 2014, and notified Plaintiff 2 of the fact that the provisional agreement draft was prepared at Plaintiff 2’s branch on the same day.

(6) During the collective bargaining process, Defendant 200Motls trade union created a newsletter that explains the progress of collective bargaining from time to time, and kept it in front of each conference room and restaurant so as to make it available for public perusal. The newsletter includes the date and time and place of collective bargaining open, participants, future schedule, labor and management, and future prospects. Upon the preparation of a provisional agreement, Defendant 200Motls trade union organized it into the newsletter in a manner easily understandable by explaining the specific contents of the provisional agreement.

B) Collective bargaining process by Defendant Hanjin Heavy Industrial Trade Union

(1) On April 15, 2014, the president of the Plaintiff branch visited the office of the Defendant Hanjin Industrial Trade Union to discuss the conclusion of the collective agreement with the Defendant Hanjin Heavy Industrial Trade Union in 2014.

(2) Upon receipt of the collective agreement proposal of the Hanjin Heavy Industries Co., Ltd., the Defendant Hanjin Heavy Industries Trade Union delivered it to the Plaintiff Branch on May 22, 2014.

(3) On September 25, 2014, the Defendant Hanjin Heavy Industries Trade Union prepared a draft interim agreement with the Hanjin Heavy Industries Co., Ltd. The representative of the Plaintiff branch and the representative of the Defendant Hanjin Heavy Industries Trade Union held a meeting on the same day and discussed on the draft interim agreement.

(4) The Defendant Hanjin Heavy Industries Trade Union, both the collective bargaining process with Hanjin Heavy Industries Co., Ltd., the preparation of the provisional agreement and the details of the provisional agreement in the newsletter, posted in the newsletter, and kept them in an open place. In particular, in relation to the interim agreement proposal, the details of the ordinary wage of the regular bonus that has been controversial among multiple labor unions, wage discount portion, and the amendment of the collective agreement were explained in detail.

C) Collective bargaining process by Defendant Bhan Infrastructure Co., Ltd.

(1) On March 27, 2014, Plaintiff Subdivision delivered the Plaintiff Subdivision’s collective agreement proposal to Defendant 2 Industrial Infrastructure Co-operation Union.

(2) Defendant 2san Infrastructure Co., Ltd. revealed the process of negotiations through the newsletters, etc. In the newsletters of Plaintiff 2’s branch, the process of negotiations or contents (basic wage increase, regular bonus increase, annual bonus increase, annual improvement, and the scope of ordinary wage) that were conducted by the representative bargaining trade union was introduced.

(3) On September 25, 2014, Defendant Bhan Infrastructure Co., Ltd. prepared a provisional agreement with the two infrastructure Co., Ltd. on September 25, 2014. The Plaintiff Subdivision also introduced the contents of the provisional agreement in the newsletter.

(4) On September 29, 2014, Defendant 2-FFFF trade union held a general meeting on September 29, 2014 to explain the draft interim agreement to its members. The Plaintiff 2-FFF trade union also participated in inquiries and answers.

D) Collective bargaining process by Defendant E.BS Korea Trade Union

(1) From the end of February 2014, Defendant ABS Korea Co., Ltd., Ltd. (hereinafter “Defendant ABS Korea Co., Ltd.”) had been engaged in the amendment of the collective agreement in 2013 and collective bargaining to enter into the wage agreement in 2014 on several occasions with EBS Korea Co., Ltd.

(2) The labor union of Defendant ABS Korea, Inc., prepared and publicly announced “the date, venue, and proposal for collective agreement” in detail after each negotiation, and publicly announced the minutes and agreement. Defendant ABS Korea Co., Ltd., Ltd., sent the minutes containing the result of negotiations to the Plaintiff Branch. On March 24, 2014, Plaintiff ABS Korea Co., Ltd., sent the minutes containing the result of negotiations to the Plaintiff Branch. On March 24, 2014, Plaintiff ABS Korea Co., Ltd., notified Plaintiff ABS Korea Trade Union of the negotiating minutes, etc. from Defendant ABS Korea Co., Ltd., and reviewed them.

(3) On March 28, 2014, the labor union of Defendant ABS Korea Co., Ltd. publicly announced the interim agreement and minutes on the same day, when it prepared a draft interim agreement with EbS Korea Co., Ltd. and EbS Korea Co., Ltd.

C. Regarding ground of appeal No. 3

In light of the relevant legal principles and records, the lower court did not err by misapprehending the legal principles on the interpretation of Article 29(2) of the Trade Union Act, statutory delegation relationship, etc., contrary to what is alleged in the grounds of appeal, in so determining, that Defendant 200, a representative bargaining trade union, etc. did not have an individual delegation relationship with each Plaintiff’s branch, each of which is a small number of trade unions, and

2. Determination on the grounds of appeal by Defendant Conven trade union

A. The lower court, on the grounds indicated in its reasoning, determined that: (a) adding Article 103 of the collective agreement and Article 48 of the detailed guidelines of collective agreement in 2014, stating that Defendant Conven trade union, a representative bargaining trade union, which is a representative bargaining trade union, discriminates against Plaintiff Branch without reasonable grounds; and (b) failure to properly undergo the procedures for providing information and gathering opinions on Plaintiff Branch constitutes a violation of the duty of fair representation; and (c)

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the duty of fair representation, without exhaust all necessary deliberations, contrary

B. Meanwhile, the lower court denied the tort liability of the Defendant Conven trade union on the grounds that it is difficult to recognize the violation of the duty of fair representation of the Defendant Conven trade union while recognizing the violation of the duty of fair representation of the Defendant Conven trade union.

The ground of appeal by Defendant Convenn trade union on the provisional agreement’s pro and pro and pro-con voting cannot be a legitimate ground of appeal, as the purport of disputing the judgment of the court below rejecting the tort liability of Defendant Conven trade union.

3. Determination on the grounds of appeal by Defendant Gannam Trade Union

The lower court determined that Defendant Gyeongnam-gu Trade Union, a representative bargaining trade union, failed to provide information or collect opinions on the collective agreement with respect to the Plaintiff Branch that participated in the procedures for simplification of bargaining windows in the course of concluding the wage agreement in 2014, which constitutes a tort due to the violation of the duty of fair representation.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine as to the non-exercise of right of explanation and the establishment of tort, or omitting judgment.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal by the Plaintiff are assessed against the Defendants, and the costs of appeal by the Plaintiff are assessed against the Defendants. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)