[1] In a case where a person in a position to substantially and specifically control and decide basic labor conditions, etc. of workers engaged in an act of controlling or intervening in the organization or operation of a labor union, whether such person is an employer subject to an order to remedy unfair labor practices (affirmative)

[2] The case holding that the original company is an employer who is subject to an order to remedy unfair labor practices, in case where the original company is in a position to substantially and specifically control and determine the employees' basic labor conditions, etc. of the intra-company subcontractor, to the extent that it is in charge of certain parts of the authority and responsibilities of the intra-company subcontractor, and thereby, led the discontinuance of the intra-company subcontractor's business and thereby led the discontinuance of the intra-company subcontractor's business, and thereby, controlled and joined the labor union's activities.

[1] If a person who is in a position to substantially and specifically control and decide the rights and responsibilities of an employer who employs the worker on the basic labor conditions, etc. commits an act under Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act by controlling or participating in the organization and operation of a trade union, then the person is an employer subject to an order for remedy ordering the correction thereof.

[2] The case holding that the original company is an employer as the main agent to issue a remedy order to correct unfair labor practices under Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act, in case where the original company is in a position to be practically and specifically controlled and decided on the basic labor conditions, etc. of its employees, and to induce the discontinuance of its business, and thereby, thereby inducing or impairing the activities of the intra-company subcontractor labor union, the original company constitutes an employer as the main agent to issue a remedy order to correct unfair labor practices under Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act.

[1] Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act / [2] Article 81 subparagraph 4 of the Trade Union and Labor Relations Adjustment Act

Hyundai Heavy Industries Co., Ltd. (Attorneys Son Ji-yol et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Intervenor 1 and four others (Attorney Kim J-jin, Counsel for the intervenor-appellant)

Seoul High Court Decision 2006Nu13970 decided April 11, 2007

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. As to whether a person is an employer under Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Act”).

A. Article 1 of the Act provides that “The purpose of this Act is to maintain and improve working conditions, improve economic and social status of workers by guaranteeing the right to organize, collective bargaining, and collective action of workers under the Constitution, and to contribute to the maintenance of industrial peace and the development of the national economy by preventing and resolving industrial disputes through fair adjustment of labor relations.” Article 81 of the Act provides that “An employer shall not engage in any unfair labor practice prescribed in any of the following subparagraphs.” Article 82(1) of the Act provides that “Any worker or trade union whose rights have been infringed due to unfair labor practice of the employer may file an application for remedy with the Labor Relations Commission.” Article 84(1) of the Act provides that “The Labor Relations Commission shall issue a remedy order to the employer if it determines that unfair labor practice has been established, and if it determines that unfair labor practice is not established, it shall make a decision to dismiss such application,” and Articles 81 through 86 of the Act provides that “The employer’s right to seek remedy, such as the removal of order from the employer’s order or order of collective labor relations.”

Furthermore, Article 81 Subparag. 4 of the Act provides for “the act of an employee to control or intervene in the organization or operation of a trade union” as unfair labor practices, and this aims at restoring a normal labor-management relationship by excluding and correcting the act infringing the right to organize as an unfair labor practice. Thus, whether an employee is an employer or not shall be determined by comprehensively taking into account the details of the relevant application for remedy, specific form in which the employer is involved in the labor relationship, the existence of substantial influence on the labor relations or the degree of exercise of control, etc. Therefore, if a person who is in a position to substantially and specifically control and decide on the basic labor conditions, etc. of a worker commits an act under Article 81 Subparag. 4 of the Act by controlling or participating in the organization or operation of a trade union, he/she is an employer subject to a corrective order.

B. The lower court determined that: (a) the Plaintiff Company was in a position to exercise substantial right to decide on the hours of work and the assurance of hours of work for employees, including the Intervenor 1, Intervenor 2, Intervenor 3, and Intervenor 4 (hereinafter “participatings”) for the smooth performance and quality control of the work process; (b) the Plaintiff Company was in a position to directly manage and control the work of the Intervenor 1, Intervenor 2, Intervenor 3, and Intervenor 4 (hereinafter “the Intervenor”); and (c) the Plaintiff Company was in a position to directly and specifically decide on whether to engage in the work of the Plaintiff Company, including the date, time, time, place, work, work contents, etc. of the work through an individual contract; and (d) its employees were in a position to exercise the right to decide on the hours of work for employees necessary for holding meetings, such as the union’s general meeting or representatives’ meeting; and (d) its employees were in a position to directly and specifically control the Plaintiff Company’s work of the Plaintiff Company to the extent that it had actually been working for the Plaintiff Company’s employees and its employees.

The judgment of the court below is just in light of the above legal principles, and it is not erroneous in the misapprehension of legal principles as to the concept of employer under Article 81 subparagraph 4 of the same Act, and the Supreme Court's decision in the grounds of appeal is different from the case, and thus it is not invoked in this case.

2. As to the establishment of unfair labor practices under Article 81 subparagraph 4 of the Act

6. On August 24, 200, the lower court held that: (a) some of the employees of the Plaintiff Company’s employees who were affiliated with the Intervenor Company’s employees who were affiliated with the Intervenor Company was unable to engage in the business of the Intervenor Company for the closure of the business from around March 203, that the Intervenor Company was not affiliated with the Intervenor Company for the closure of the business; and (b) that the Intervenor Company was not affiliated with the Intervenor Company for the closure of the business after the closure of the business; and (c) that the Intervenor Company was affiliated with the Intervenor Company for the closure of the business from around 200 to the time of the closure of the business; and (d) that the Intervenor Company was not affiliated with the Intervenor Company for the closure of the business, and that the Intervenor Company was not affiliated with the Intervenor Company for the closure of the business; and (e) that the Intervenor Company was not affiliated with the Intervenor Company for the closure of the business, and that the Intervenor Company was not affiliated with the Intervenor Company for the closure of the business of the Plaintiff Company for the closure of the business.

The above decision of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the establishment of an unfair labor practice in control and intervention as provided by Article 81 subparag. 4 of the Act, and there is no other ground of appeal disputing the fact-finding of the court below is not a legitimate ground of appeal.

3. As to the contents of the order for remedy

In reality, the types of unfair labor practices are diverse, and their impacts are diverse according to changes in labor-management relations, and it is also necessary to flexible and flexible methods and contents of remedy for unfair labor practices corresponding thereto. Thus, in the event an employer's act of control or alteration is committed by a factual act, it is difficult to restore such act itself by cancellation or cancellation, and since there is a high possibility that an employer's act will continue to be conducted repeatedly in the future, an omission order prohibiting an employer from exercising control or intervention may be an appropriate remedy method. Article 8 of the Act also provides that the Labor Relations Commission shall issue an order for remedy to the employer when it determines that the employer has established appropriate remedy measures in order to ensure that the employer has taken appropriate remedy measures in each case according to the professional and objective judgment, and the same does not apply to the type and contents of remedy order.

In the above purport, the remedy order that "the act of inducing business closure by exercising substantial influence and control, and the act of hindering or impairing the activities of a trade union shall not be deemed unlawful after the National Labor Relations Commission acknowledged the act of unfairly managing or changing the control of this case." Thus, the ground of appeal disputing this point is without merit.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part resulting from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)