Co., Ltd. (Bae, Kim & Lee LLC, Attorneys Park Young-hoon, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Metal Trade Union

June 18, 2015

1. The decision made by the National Labor Relations Commission on December 29, 2014 was revoked with respect to the case of applying for reexamination of unfair labor practices between the Plaintiff and the Defendant’s Intervenor (2014No161).

2. The supplementary intervenor shall bear the part concerning the participation in the litigation costs, and the remainder shall be borne by the defendant.

The plaintiff stated in Paragraph (1) of this Article that he/she is "the defendant," but this appears to be a clerical error of the "National Labor Relations Commission".

1. Details of the decision on retrial;

A. On December 24, 2012, the Plaintiff is a company engaged in the manufacturing of automobile parts, etc. using 50 full-time workers. The Plaintiff is an intra-company subcontractor of Hyundai B&A (hereinafter “NP”). Before the Plaintiff was established on December 17, 2002, KobT was established and performed work as an intra-company subcontractor of Hyundai B&P. Co., Ltd. (hereinafter “CobT”) on December 31, 2012. Cobte is no longer an intra-company subcontractor of Hyundai B&S. At the time of its establishment, the Plaintiff was employed as the Plaintiff’s employee. Meanwhile, the Plaintiff is an intra-company subcontractor of Hyundai B&P, other than the aforementioned two companies.

B. The Intervenor joining the Defendant (hereinafter “ Intervenor”) is an industrial trade union organized on a national scale, composed of workers working at a place of business located across the nation’s metal industry. The Intervenor’s constituent organization is the subordinate body of a trade union organized on the part of workers working at the intra-company subcontractor of Hyundai B&S (hereinafter “instant subdivision”). At present, some of the workers working at the Plaintiff and C&A’s workplace are affiliated with the instant subdivision. However, if C&T, before the Plaintiff was established, maintains the status of the intra-company subcontractor of Hyundai B&S, the employees working at the place of business of C&T were affiliated with the instant subdivision.

C. On November 18, 2012, prior to the Plaintiff’s establishment, the instant sub-chapter was established by consisting of workers working in the workplace of Kochix. On November 19, 2012, after the establishment of the instant sub-chapter, the Intervenor, a superior trade union, requested the organization negotiations pursuant to Article 14-2 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”). Accordingly, Cochix announced the fact that the Intervenor requested the organization negotiations pursuant to Article 14-3(1) of the Enforcement Decree of the Trade Union Act on November 21, 2012. However, since there was no other trade union other than the instant sub-chapter, there was no demand for the organization negotiations by the Intervenor, other than the Intervenor, within seven days from the date of the said public announcement.

D. The Plaintiff was established on December 24, 2012. Moreover, as seen earlier, the Plaintiff continued negotiations with the Intervenor and the organization, following the negotiations that it continued, given that most of the workers of the Coinate, a member of the instant sub-chapter, were employed as the Plaintiff’s employee. The Plaintiff and the Intervenor, following the first negotiation on January 4, 2013, entered into a collective agreement with the Plaintiff for the effective period from March 21, 2013 to March 31, 2014 (hereinafter “collective agreement”).

E. On December 17, 2013, around the expiration date of the term of validity of the above group agreement, around three months, a trade union under the name of “Copi union” (hereinafter “Copi union”) for workers working at the Plaintiff’s workplace was established separately from the instant sub-committee. Meanwhile, the Intervenor demanded the Plaintiff to negotiate with the Plaintiff on January 10, 2014 pursuant to Article 14-2 of the Enforcement Decree of the Trade Union Act, and the CCopi union also requested the Plaintiff to negotiate with the Plaintiff on January 14, 2014 pursuant to Article 14-4 of the Enforcement Decree of the Trade Union Act. Accordingly, the Plaintiff concluded a new collective bargaining agreement with the Intervenor and CCopi union pursuant to Article 14-5 of the Enforcement Decree of the Trade Union Act, and concluded a new collective bargaining agreement with the Plaintiff on January 14, 2014, and concluded a 20-14 of the Enforcement Decree of the Trade Union Act with the two-month trade union and the two-month trade union.

F. The Intervenor and the non-party workers belonging to the instant branch filed an application for remedy for unfair labor practices with the Seoul Regional Labor Relations Commission No. 2014 No. 35, July 2014. In the application for remedy, the Intervenor became final and conclusive as a representative bargaining trade union on November 2012, and the Intervenor entered into an agreement with the Plaintiff and the representative bargaining trade union in 2013 by negotiating as an organization as the representative bargaining trade union, and the Intervenor did not appear as the representative bargaining trade union for two years from the date of entry into force of the collective agreement in 2013 pursuant to Article 14-10 (1) 2 of the Enforcement Decree of the Trade Union Act. The Intervenor rejected the Plaintiff’s application and concluded a collective agreement with the Plaintiff in 2014 as the representative bargaining trade union and rejected the Plaintiff’s request for negotiations with the Plaintiff’s representative bargaining trade union. However, the Intervenor’s assignment of the Plaintiff’s business to the Plaintiff’s representative bargaining trade union cannot be seen as being related to the Plaintiff’s collective labor practice.

G. On October 6, 2014, the Intervenor filed an application for reexamination with the National Labor Relations Commission as to the said initial trial tribunal as 2014No161. On December 29, 2014, the National Labor Relations Commission rendered a judgment revoking the said initial trial tribunal and recognizing the Plaintiff’s refusal of the Plaintiff’s request for collective bargaining as unfair labor practice (hereinafter “instant new trial ruling”) on the ground that “the Plaintiff succeeded to the status of Kombex’s position in relation to the Intervenor, as the Plaintiff succeeded to the position of Kombex’s business transfer of Kombex.”

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 5, 7, and 8, the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

At the time of concluding an agreement with the Plaintiff in 2013, only one trade union exists in the Plaintiff’s workplace, and the Intervenor did not undergo the procedures for simplification of bargaining windows as stipulated in Article 29-2 of the Trade Union Act. Therefore, the status of the representative bargaining trade union is not recognized for the Intervenor. Therefore, the Plaintiff’s refusal of a request for collective bargaining by an intervenor, who is not a representative bargaining trade union, and the conclusion of an agreement with a representative bargaining trade union which is determined as a representative bargaining trade union in accordance with the procedures for simplification of bargaining windows

B. Relevant statutes

Attached Form shall be as listed in the attached Form.

C. Determination

As examined below, “the maintenance period of the status of the representative bargaining trade union” as stipulated in Article 14-10 of the Enforcement Decree of the Trade Union Act is not applicable to the case where the trade union requesting the negotiation is one or more individuals. However, according to the aforementioned review, the trade union or its subordinate organization, which existed in the business establishment of the Plaintiff and the Plaintiff at the time of concluding the 2013 collective agreement, is limited to the instant subdivision, and the trade union requesting the negotiation between the Plaintiff and the Plaintiff, which is the employer. Thus, there is no room for applying the “the maintenance period of the status of the representative bargaining trade union” as stipulated in Article 14-10 of the Enforcement Decree of the Trade Union Act to the Intervenor. Thus, regardless of whether the Plaintiff succeeded to the status of the CON, the intervenor did not have the status of the representative bargaining trade union at the time of concluding the 2014 collective agreement with the Plaintiff, and thus, the Intervenor cannot be deemed to have concluded an unfair demand for the reexamination of the status of the Intervenor to the above collective bargaining trade union.

1) First of all, there is no room for establishment of the concept of “representative bargaining trade union” under the Trade Union Act if only one trade union exists in a single business or workplace. Article 29-2(1) of the Trade Union Act explicitly states that “in cases where there are not less than two trade unions which establish or join a single business or workplace regardless of the form of a trade union, a trade union shall determine a representative bargaining trade union and demand bargaining.” The concept of “representative bargaining trade union” can only be established in cases where not less than two trade unions exist in a single business or workplace. If only one trade union exists in a single business or workplace, the trade union directly becomes a party to the trade union and enters into a collective agreement with the employer without designating a representative bargaining. In such case, the concept of “representative bargaining trade union” is unnecessary or there is no practical benefit.

2) Article 14-10(1) of the Enforcement Decree of the Trade Union Act, which provides for the term of maintaining the status of a representative bargaining trade union, also provides that where only one trade union exists in one business or one workplace, or where there are only one trade union requesting collective bargaining within the period of public announcement pursuant to Article 14-3 of the Enforcement Decree of the Trade Union Act, with regard to the conclusion of the pertinent agreement, the guarantee of the term of maintaining the status of a representative bargaining trade union pursuant to the above provision of paragraph (1) shall not be granted, aside from the fact that the status of a representative bargaining trade union as a party or the status of a representative bargaining trade union may be determined pursuant to the above provision of Article 29-2(2) through (5) of the Trade Union Act. In other words, even if the above provision guarantees the status of a representative bargaining trade union for a certain period from the time of determination, it shall be limited to cases where the status of a representative bargaining trade union is determined pursuant to the provisions of Article 29-2(2) through (5) of the Trade Union Act.

3) The Defendant asserts that “where there are several trade unions in one business or workplace, but a trade union requesting collective bargaining within the period of public announcement pursuant to Article 14-3 of the Enforcement Decree of the Trade Union Act is one, the trade union is recognized as a representative bargaining trade union pursuant to Article 29-2(1) of the Trade Union Act and as a result, the guarantee of the period of maintenance of the status of the representative bargaining trade union shall be applied to only one trade union from the beginning of a business or workplace for a certain period prescribed in Article 14-10(1) of the Enforcement Decree of the Trade Union Act.” However, the Defendant’s argument is not reasonable as follows: (a) the issue of “whether a trade union recognizes the status of the representative bargaining trade union at any time” and the issue of “whether a representative bargaining trade union will be guaranteed the status of the representative bargaining trade union at any time” is not a legislative policy issue, and (b) the fact that a trade union may not recognize the status of the representative bargaining trade union recognized as a representative bargaining trade union at any time in the long-term period of time pursuant to Article 12 of the Act.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Anti-Ma (Presiding Judge) Kim Yong-ho