Plaintiff Credit Union (Law Firm Honam General Law Office, Attorney Kim Sung-ro, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Intervenor (Attorney Kang Jae-chul, Counsel for defendant-appellant)

May 6, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

The decision made by the National Labor Relations Commission on October 16, 2007 between the plaintiff and the defendant joining the defendant on the application for reexamination of unfair dismissal shall be revoked.

1. The circumstances leading to the decision on reexamination of this case

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence 1, Gap evidence 2, and 3-1 and 2:

A. The Plaintiff Cooperative, upon obtaining authorization for establishment on March 2, 1973, has its head office in the Dong-dong (number omitted) in the Seoul Special Metropolitan City, and employs 35 full-time workers, and is a credit union engaging in financial business by employing 35 full-time workers, and the Defendant Intervenor’s supplementary intervenor (hereinafter “ Intervenor”) entered the Plaintiff Union on February 14, 1976 and promoted to the regular business (class 2 A) in 2001, and thereafter, was assigned to the branch office in the Central Branch Office and then was dismissed from office on June 30, 2007 (hereinafter “instant dismissal”).

B. On July 18, 2007, the Intervenor filed an application for remedy against unfair dismissal with the former Regional Labor Relations Commission as of July 13, 2007, as of dismissal dismissal of the instant case. On August 30, 2007, the former Regional Labor Relations Commission issued an order of remedy to the Intervenor to immediately restore the Intervenor to his original position and pay an amount equivalent to the wages that could have been paid if the Intervenor would normally work during the period of his dismissal, on the ground that the Plaintiff’s union could not be deemed to have obtained the consent of the non-members when changing the retirement age from 60 to 58 years of age under the Personnel Rules (Rules) of December 30, 203 (hereinafter “instant provision”).

Accordingly, on September 18, 2007, the Plaintiff filed an application for reexamination of unfair dismissal with the National Labor Relations Commission as 2007Da762, and the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on the same ground as the first inquiry court on October 16, 2007 (hereinafter “instant reexamination decision”).

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

A. The plaintiff's assertion

1) At the time of the amendment of the provision of this case, a trade union consisting of 27 workers among 38 workers agreed to the amendment of the above provision with the consent of the majority, and the majority of the employees in charge of management who are directly disadvantaged pursuant to the reduction of the retirement age also consented to the amendment of the above provision. At least a part of the management employees, who were led to the amendment of the above provision or did not raise any objection against the retirement age regulations, or even after the lapse of several years after the amendment of the above provision. This is the same as the above provision explicitly consented to

2) Even if the Plaintiff’s domestic union did not obtain the consent by the employee’s collective decision-making method in amending the instant provision, in light of the fact that, at the time, the sunset time of the non-taxation benefits under the Regulation of Tax Reduction and Exemption Act, the core competitiveness of the credit union, was anticipated to leave the deposits of the union members, etc., and there was a need to take measures to resolve the accumulated personnel body, etc., the amendment of the instant provision is reasonable under social norms to the extent that it can recognize the legal norm even without the consent of the employee’s collective decision-making method.

B. Relevant provisions

[Labor Standards Act]

Article 94 (Procedures for Preparation and Amendment of Rules) (1) Any employer shall, with respect to the preparation or amendment of the rules of employment, hear the opinion of a trade union organized by a majority of workers in the business or workplace concerned, and, if there is no trade union organized by a majority of workers, hear the opinion of a majority of workers in the absence of such a trade

【Collective Agreement】

Article 12 (Scope of Members) The employees of the Plaintiff Credit Union may be all partners except employers under Article 2-2 of the Trade Union and Labor Relations Adjustment Act: Provided, That they shall be employees of Grade III or lower.

【Personnel Regulations】

Article 23 (Classification of Dismissals) Dismissals shall be classified into natural dismissal, dismissal from office for member, dismissal from office for retirement, disciplinary dismissal, desired retirement, voluntary retirement, voluntary retirement, and ex officio dismissal.

Any person who reaches the retirement age shall be dismissed from office for retirement.

Article 27 (Retirement Age) (1) The retirement age by class of an employee shall be as follows:

1. Office positions: 58 years of age (it shall be December 30, 2003);

2. The contract positions shall be determined by the board of directors ( May 30, 2007).

3. Deleted (No. 30 December 30, 2003).

(2) The retirement age of employees shall be issued by the chief of a department within three months from the base date for retirement age dismissal: Provided, That this shall not apply to technical positions.

(3) The basic date on which employees' retirement age is dismissed shall be the end of the relevant month.

The provisions of Article 1 (Enforcement Date) of the Addenda shall enter into force on February 1, 2004.

(c) Fact of recognition;

The following facts may be acknowledged in full view of each of the above evidence: Gap evidence Nos. 5, 6, 20-1, 2, 38-1, 2, and 40, and the whole purport of the arguments and arguments.

1) On December 30, 2003, the Plaintiff Union held a 11th regular board of directors and decided to the same age 58 of the Regulations on Personnel Management (Grade III or higher) and the Regulations on the Age of 60 in general service (class IV or lower). On October 13, 2004, the Plaintiff Union held an extraordinary general meeting under the attendance of 27 members on October 13, 2004, and passed a proposal for the amendment of the Regulations on the Age of Employees in 22 and 5. At that time, the Trade Union was composed of 38 members of the total number of 27 members, including 30 Grade III or IV in general service and 23 members in general service.

2) After that, on November 4, 2004, the Plaintiff Union and the Trade Union agreed to amend Article 27(1) of the Personnel Regulations on the retirement age as above and implement it as of January 1, 2004. Accordingly, the Plaintiff Union and the Trade Union revised and implemented the Personnel Regulations.

3) On February 28, 2005, the Plaintiff Union, in accordance with the retirement age regulations set as above, treated one Grade-II management worker as retirement. On January 1, 2006, one Grade-I management worker as of January 1, 2006, was issued upon the arrival of the retirement age, and was dismissed from office on February 7, 2006.

4) Meanwhile, on June 11, 2007, the former North Korean Headquarters notified the Plaintiff Union, etc. of the official text of the “Amendment of the Standard Operational Manual for Credit Cooperatives” as determined by the resolution of the board of directors of the Korea Federation. The provisions on the retirement age of employees in the standard Operational Manual are as follows.

Article 11-2 (Retirement Age of Employees): The retirement age of employees shall be as follows:

1. Personnel in the management office: sixty years of age;

2. Personnel in general service (excluding management positions), technical service, and employment service: 55 years of age;

5) The Plaintiff Union notified the Intervenor that the Intervenor would be retired on June 30, 2007 according to the retirement age shortened by the amendment of the instant provision.

D. Determination

1) Determination on the first argument

A) The amendment of the rules of employment requires the consent of a group of workers subject to the previous rules of employment in order to unilaterally disadvantage workers. The consent method requires the labor union if there is a labor union organized by a majority of workers, and the consent of a majority of workers if there is no such labor union (see, e.g., Supreme Court Decisions 7Da353, Jul. 26, 197; 91Da17542, Sept. 24, 1991; 91Da37522, Apr. 10, 1992).

In the instant case, the Plaintiff Union obtained the consent of the labor union composed of a majority of workers at the time of the amendment of the instant case, and thus, the amendment of the instant provision is lawful.

However, as seen earlier, the amendment of the provision of this case extends the retirement age of the former 55 in the case of general service, and reduces the retirement age of the former 60 years to 58 years in the case of general service, so it would be favorable for the employees in general service and make changes to the disadvantage of the employees in general service. In such a case, even if a trade union consisting of a majority of the total employees, it is not possible to represent the employees group subject to the rules of employment to be modified disadvantageously, and consent is required by the collective decision-making method of the employees group subject to the rules of employment to

Even according to the plaintiff's assertion, the labor union of the plaintiff union is a member of the 11th class 3-class 4 of the managing staff, and thus only the 11th class 3-class 4 of the membership is a member of the labor union, even if consent to the amendment of the above provision was obtained from such labor union, this cannot be deemed to have obtained the consent of

B) The Plaintiff also obtained the consent of a majority of the employees in the management office at the time of the amendment of the instant provision, and some of the management office led to the amendment of the said provision, retired without any objection by the reduced retirement age regulations, and did not raise any objection for several years after the amendment of the said provision, and gave implied consent to the amendment of the said provision.

However, the fact that the Plaintiff Union obtained the consent of a majority of the employees in the management office at the time of the amendment of the above provision is insufficient to recognize it, and there is no other evidence to acknowledge it otherwise. In addition, even if part of the management office led to the amendment of the above provision, without raising any objection pursuant to the reduced retirement age provision, it cannot be readily concluded that the management office employee ex post ratifications the above amendment provision or gave implied consent thereto (see Supreme Court en banc Decision 93Da26168 delivered on July 11, 1995). Thus, this part of the Plaintiff’s assertion is without merit.

2) Judgment on the second argument

In light of the fact that the amendment of the provision of this case is reasonable in terms of social norms to the extent that it is possible to recognize legal norms in light of the need to prepare for the aggravation of the financial environment that will face to the credit union in the future and the necessity of taking countermeasures against personnel entities, etc. However, even though the plaintiff asserted the necessity of amendment of the provision above, in the case of general service, the retirement age is increased from 55 to 58 years, and the former North Korean branch office of the New Cooperatives Federation issued a notice to the plaintiff on March 2, 2007, of the revision of the standard operating manual of the credit union including the management position determined by the resolution of the board of directors of the National Federation of New Cooperatives and the retirement age regulations of the general service position at 60 and the retirement age regulations of the National Federation at 55 years, it is difficult to view that it is reasonable under social norms in light of the above amendment of

Therefore, the plaintiff's assertion on this part is without merit.

3) Sub-decisions

Therefore, since the amendment of the provision of this case is illegal, the dismissal of this case based on the amendment of the provision of this case is also illegal, and the decision of retrial of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judge Jeong Ho-sung (Presiding Judge)