[1] The meaning of "justifiable conduct for the business of a trade union" under Article 39 (1) of the Trade Union Act

[2] Where a new trial is null and void due to a failure to comply with a new trial procedure or a serious defect in a disciplinary action, the validity of the disciplinary action (negative)

[3] The case where a disciplinary action does not become null and void even if the review was conducted without guaranteeing the right to participate in the trade union under the collective agreement

[1] "Justifiable act for business affairs of a trade union" under Article 39 subparagraph 1 of the Trade Union Act refers to a legitimate act of a trade union; however, even if a trade union member is not in itself an organized act of a trade union according to a resolution or specific instruction of a trade union, if it can be viewed as an act of a trade union in light of the nature of the act, or if it can be seen that a trade union's implied authorization or approval has been obtained, the act of a trade union member

[2] The review procedure for a disciplinary action is a procedure for the relief or confirmation of a disciplinary action, which is entirely a single disciplinary procedure, and its legitimacy should also be determined in whole on the disciplinary procedure. Thus, a disciplinary action becomes null and void if the review procedure is not fully implemented or it is impossible to recognize the validity of a review due to a serious defect in the review procedure, even if the original disciplinary action satisfies all the requirements.

[3] In a case where a member subjected to disciplinary dismissal under the collective agreement made a new trial without guaranteeing the right to participate in the labor union, if the new trial is conducted without guaranteeing the right to participate in the labor union, and the disciplinary action becomes final and conclusive, the disciplinary action shall, in principle, be deemed null and void on account of a material defect in the procedure. However, if the labor union voluntarily renounced the right to participate in the new trial, or the labor union which has lost its function as a trade union directly notifies the company that it would suspend its operations in the future, and if there are special circumstances, such as where all the executive officers of the union who have lost its function as a trade union voluntarily resigned and completely suspended its operations, even if the decision was made without guaranteeing the participation of the representative of

[1] Article 39 subparagraph 1 of the Trade Union Act / [2] Article 27 (1) of the Labor Standards Act / [3] Article 27 (1) of the Labor Standards Act

[1] [2] [3] Supreme Court Decision 95Da1323 delivered on June 13, 1995 (Gong1995Ha, 2394) / [1] Supreme Court Decision 91Nu124 delivered on September 24, 1991 (Gong1991, 2631) Supreme Court Decision 91Nu4164 delivered on November 12, 1991 (Gong1992, 139), Supreme Court Decision 92Da18542 delivered on September 25, 1992 (Gong192, 2993) / [2] Supreme Court Decision 92Da4935 delivered on October 22, 1993 (Gong193Ha, 3154 delivered on September 24, 1995) / [3] Supreme Court Decision 92Da939494 delivered on September 29, 194

Plaintiff (Attorney Kim Han-chul et al., Counsel for the plaintiff-appellant)

Pos Integrated Steel Co., Ltd. (Attorney Soh-jin et al., Counsel for defendant-appellant)

Daegu High Court Decision 94Na713 delivered on February 8, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal and the supplemental appellate brief submitted after the expiration of the period are examined as well.

1. On the first ground for appeal

"Justifiable conduct for business of a trade union" under Article 39 subparagraph 1 of the Trade Union Act refers to a legitimate activity of a trade union. However, even if a trade union member is not in itself an organized activity according to a resolution or specific instruction of a trade union, if it can be viewed as an activity of a trade union due to the nature of the activity, or if it can be seen that a trade union's implied authorization or approval has been obtained, it shall be deemed an activity for the trade union's business (see Supreme Court Decisions 91Nu4164 delivered on November 12, 191, 95Da1323 delivered on June 13, 1995, etc.).

According to the reasoning of the judgment below, the court below determined as follows: (a) the reasons why the plaintiff was involved in the preparation and distribution of printed materials based on macroscopic evidence; (b) under the circumstances where the number of members of the defendant company's trade union with 20,000 persons was reduced rapidly, and the number of members of the defendant company's trade union had been reduced rapidly; (c) at the time, a trade union, such as the chairperson, has resigned from office and operated by proxy system; and (d) there were several union members' leading efforts to revise its bylaws in favor of the union members without debate, that they were unjustifiable; and (d) the details of the amendment and the procedures for amendment are prepared and distributed to the employees of the defendant company within the fixed day of voting; (d) the reasons why most of the members of the defendant company's highest management floor were writtenly expressed as withdrawing from the labor union from the defendant company after being employed by the defendant company; (e) the situation where the number of members of the labor union was reduced rapidly, and (e) the Plaintiff's act of attracting members of the labor union, etc.

In light of relevant evidence and the above Supreme Court decisions, the above recognition and judgment of the court below are all acceptable, and there is no error of law by misunderstanding the rules of evidence, such as theory of lawsuit, or by misapprehending the legal principles as to Article 39 subparagraph 1 of the Trade Union Act.

All arguments are without merit.

2. On the second ground for appeal

According to Article 25 subparag. 3 of the collective agreement concluded between the defendant company and the defendant company, the court below determined that there was a procedural defect in the procedure that the defendant company should appoint three representatives from the union upon request of the personnel committee in the event of dismissal or more severe disciplinary action against the union members with regard to Article 39 subparag. 1 and 5 of the Trade Union Act. However, since the act of distributing printed materials and making written statements to the plaintiff constitutes "act for the affairs of the trade union under Article 39 subparag. 1 of the Trade Union Act" in light of the nature of the act, the defendant company should be present as three representatives from the union to take the above action as grounds for disciplinary action under Article 39 subparag. 1 of the Trade Union Act. However, even if the defendant company did not actually have to attend the above disciplinary action against the plaintiff, it was impossible for the defendant company to take three representatives from the union to give notice of the above disciplinary action to the non-party company’s general personnel committee to the extent that the defendant company did not have any procedural defect in the procedure of review.

The procedure of review on a disciplinary action is a procedure for remedy or final determination on a disciplinary action, and its legitimacy should also be determined in whole as to the procedure of a disciplinary action. Thus, even if the original disciplinary action satisfies all the requirements, if it is impossible to recognize the validity of a retrial due to a failure to comply with the procedure of review at all or a serious defect in the procedure of review, the disciplinary action shall be null and void (see Supreme Court Decisions 92Da4935 delivered on October 22, 1993; 93Da29662 delivered on January 24, 195, etc.). Thus, if a member who was subject to disciplinary action under Article 25 subparag. 3 of the collective agreement of the defendant company requests a retrial, without guaranteeing his/her right to participate in the labor union, and the retrial becomes final and conclusive, the disciplinary action shall be deemed null and void in principle due to a serious defect in the procedure, but if the labor union voluntarily waives his/her right to participate in the retrial or loses his/her functions as a representative of the labor union (see Supreme Court Decision 936Da4979Da.294.

However, according to the records, although the number of union members was 19,00 when the defendant company's trade union had reached 19,00,00 members when the plaintiff requested reexamination, it actually lost its function as a trade union. Pursuant to the records, on July 23, 1992, all union officers and executive officers (7) resigned from the executive department and request the company to cancel their full-time service as of August 1, 192. The trade union's request for cooperation sent to the company as of July 25 of the same year to the company for the preservation and maintenance of the union fund and assets, etc. under the suspension of its operations, the non-party 2 was appointed as the fund manager in order to prevent the use of the union fund and to preserve the company's funds, so it can not be viewed that the management of the union's funds was not possible for the union's employees to cooperate in the management of the union fund under joint name with the manager appointed by the union and the company's administrator appointed by the union for management of the union's funds.

Therefore, the judgment of the court below that there is a serious procedural defect in the review procedure on the premise of a different opinion is erroneous in the determination of the legality of the disciplinary procedure. Thus, there is a ground to point this out.

3. On the third ground for appeal

The court below held that the disciplinary action is null and void since the defendant company's act related to Article 39 subparagraph 1 of the Trade Union Act, among the disciplinary action against the plaintiff, there is a defect in the procedure that did not comply with Article 25 subparagraph 3 of the collective agreement. Thus, the remaining grounds for disciplinary action should be determined on the sole basis of the remaining grounds for disciplinary action, except for the above grounds for disciplinary action, which occurred six months before the commencement of the disciplinary procedure pursuant to Article 45 (3) of the above provision, and the grounds for disciplinary action that the defendant company's judgment that the defendant company recognized cannot be viewed as a ground for disciplinary action (it can be considered as a ground for determination of the legitimacy of the disciplinary action) and all the other grounds for disciplinary action except for the grounds for disciplinary action that cannot be viewed as a legitimate official order. In full view of all the above circumstances, the court below determined that the defendant's act of causing disciplinary action, which is the most severe one of the grounds for disciplinary action against the plaintiff, is beyond the limit of the right of disciplinary action.

However, the fact that the defendant company cannot be deemed to have committed a procedural violation in violation of Article 25 subparag. 3 of the collective agreement is identical to the above ground of appeal No. 2. Thus, it is erroneous for the court below to determine the legitimacy of the disciplinary action on the grounds of violation of Article 25 subparag. 1 of the collective agreement by excluding the grounds of disciplinary action related to Article 39 subparag. 3 of the Trade Union Act on the grounds of violation of Article 25 subparag. 3 of the collective agreement. However, according to the records, all of the grounds of disciplinary action related to Article 39 subparag. 1 of the Trade Union Act cannot be considered as a justifiable act for the trade union's work. Further, even if the court below comprehensively determines all the grounds of disciplinary action against the plaintiff legally recognized, the decision of the court below that the disciplinary action against the plaintiff was invalid by abusing the right of disciplinary action, and it cannot be said that there is an error of law by misunderstanding the legal principles as to the legitimate grounds of dismissal under Article 27 of the Labor Standards Act or by misunderstanding of facts.

Ultimately, there is no reason to discuss.

4. The defendant filed an appeal as to the part ordering the payment of wages, but the defendant did not state any grounds for appeal as to this part, and the petition of appeal does not state such grounds for appeal.

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

Justices Ahn Yong-sik (Presiding Justice)