(영문) 대전지방법원 2015.1.15.선고 2014고정300 판결

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Imposition of Judgment

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(영문) 대전지방법원 2015.1.15.선고 2014고정300 판결

가.근로기준법위반나.노동조합및노동관계조정법위반

Cases

2014 fixed300 Ga. Violation of the Labor Standards Act

B. Violation of the Labor Union and Labor Relations Adjustment Act

Defendant

1.(a) A

2.(a) B

3.2. C.

4.(a)(b) D Limited Liability Company

Prosecutor

Kim Tae-hun ( Indictment) and Kim Jin-young (Trial)

Defense Counsel

Law Firm Insu (Attorney Im Sung-sung, Counsel for the defendant-appellant)

Imposition of Judgment

January 15, 2015

Text

Defendant A shall be punished by a fine of 5,00,000 won, by a fine of 2,00,000 won, by a fine of 3,00,000 won, by a fine of 3,00,000 won, and by a fine of 5,00,000 won for Defendant D Limited Liability Company, respectively. In the event that Defendant A, B, and C fail to pay each of the above fines, each of the above fines of 10,00 won shall be detained in the workhouse.

In order to order the Defendants to pay an amount equivalent to the above fines. On September 18, 2012, the violation of the Labor Union and Labor Relations Adjustment Act against Defendant C and the violation of the Labor Union and Labor Relations Adjustment Act against Defendant D limited liability companies on September 18, 2012, each of them is acquitted.

Reasons

Criminal History Office

Defendant A as the representative director of the Category D Limited Company in Category E, is an employer who has employed 700 full-time workers and has operated the manufacturing business of parts for automobile body. Defendant B is an employer who acts for each worker as the factory head and labor director, and Defendant D Limited Company is a corporation established for the purpose of automobile parts manufacturing business.

1. Defendant A and B

An employer shall not exceed 40 hours a week, excluding hours of recess, and work hours a day in excess of eight hours, and shall not extend work hours in excess of twelve hours a week.

Nevertheless, from January 4, 2010 to January 10, 2010, the Defendants had 105 employees, including F, who work as production workers, work in excess of one week for more than 12 hours. From that time to March 28, 201, the Defendants had 4,485 employees, such as the written statement of violation of attached work hours, work hours, from April 1, 201 to August 21, 201.

2. No defendant A or C shall control or intervene in the organization or operation of a trade union by a worker, and shall not give any disadvantage to any worker on the ground that the worker has performed any legitimate act for the operation of a trade union;

At around 15:30 on December 11, 2012, the Defendants: (a) visited K, a director of the J branch of the G Trade Union H branch, as an instructor for the education of the members of the H branch of the G Trade Union; (b) however, despite the absence of any restrictions on the status and lectures of instructors under the collective agreement, K refused access on the ground that K’s status as the dismissal of a L Co., Ltd.’s M& factory and the contents of lectures would bring about conflicting labor-management relations; and (c) deducted the wages of 29 hours for 29 workers, who were gathered in front of the door to provide K and education. Accordingly, the Defendants conspired to organize and operate the labor union, and participated in the management and operation of the labor union, and gave disadvantages to workers on the ground of legitimate labor-management activities.

3. Defendant D Limited Liability Company

A. The Defendant violated the Defendant’s overtime work limit in relation to the Defendant’s business at the time and place specified in paragraph (1).

B. The Defendant, at the time and place specified in paragraph (2), controlled and opened the Defendant’s business activities as above, and took advantage of the employee’s disadvantage to A and C, who is the representative director of the Defendant.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each legal statement of the witness N orO;

1. Investigation report (report on the case of a previous disposition for the period of partial exclusion during the total period of violation of the limit on extended labor);

1. Collective agreement;

1. Details of violation of working hours, and details of monthly violation;

1. Making a request for part-time due to the progress of education for all the union members, requesting entry to and departure from a trade union, responding to the official questions of Epics, requesting the suspension of unfair labor practices, requesting the restraint of illegal collective action;

1. The current status of the deduction from unauthorized transfer on December 11, 2012;

1. Application of Acts and subordinate statutes to the register of regular entrance and exit (P, 20 trillion won), the place where external instructors are invited, the place of education, the date of confirmation of facts, and the date of public announcement (2 union members education);

1. Article 110 subparag. 1 and Article 53(1) of the Labor Standards Act; Article 30 of the Criminal Act; Article 90 and Article 81 subparag. 1 and 4 of the Trade Union and Labor Relations Adjustment Act; Article 30 of the Criminal Act;

Defendant B: Article 110 subparag. 1 and Article 53(1) of the Labor Standards Act; Article 30 of the Criminal Act; Article 30 of the Criminal Act; Article 90 and Article 81 subparag. 1 and 4 of the Trade Union and Labor Relations Adjustment Act; Article 30 of the Criminal Act; Selection of each fine

Defendant D Limited Liability Company: Articles 115, 110 subparag. 1, and 53(1) of the Labor Standards Act; Articles 94, 90, and 81 subparag. 1 and 4 of the Trade Union and Labor Relations Adjustment Act; each choice of fines

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act

1. Detention in a workhouse;

Defendant A, B, and C: Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

Judgment on the Defendants and defense counsel's assertion

1. The assertion;

Defendant A and C’s refusal of access to K, which is the position of dismissal of a LM plant, is justified as based on the right to manage facilities, and even if not, there was justifiable reason to believe that the above Defendants were entitled to refuse access to K. Thus, the above Defendants’ refusal of access to K and the deduction of wages of 0.5 minutes for 29 workers employed in front of the door to provide K and education does not constitute unfair labor practices.

2. Determination

A. The following facts are acknowledged according to the above evidence.

① The branch of the G Workers’ Union H branch (hereinafter referred to as the “branch”) requested Defendant D Limited Company (hereinafter referred to as the “Defendant Company”), Defendant D Limited Company (hereinafter referred to as the “Defendant Company”): On December 11, 2012, 2012: The target: former members of the G Workers’ Union; on December 11, 2012, : on a day: 15:30-17:30 (2 hours); on a night, 21:0-23:0-23:0 (2 hours): on a day: on a day: on a day; on a day after a request was made to make an entry to the Educational Union of K Workers: on a day: December 7, 2012; on a day: the place of entry and training; and on a day: the place of entry and training; the target members; and on a request made a request to enter the Educational Union of K Workers.

② On December 10, 2012, the Defendant Company notified the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the local government.

③ On December 11, 2012, its branch notified the Defendant Company of the change of the training place of the union members into the fixed letter.

④ Accordingly, on December 11, 2012, Defendant Company notified the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the affiliate of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the board

(6) The details of Article 7 of the collective agreement related to this part are as follows:

Article 7(A.I.D.)(A.I.D.) activities of an association shall be performed outside working hours in principle.2.2. During working hours, in consultation with a non-exclusive union and a union member, the non-exclusive union member shall be conducted in writing or orally in consultation with a company.3. During working hours, the non-exclusive union member shall recognize the union activities for three hours a week, but the union representative and the representatives shall recognize the union activities for five hours a month.4.(1) At the central committee members elected under the name of the Chairperson of G Labor Union, the paid working hours shall be recognized as follows.(2) At the meeting of the Central Committee in accordance with the letter of convening the letter of convening the Central Committee under the name of the Chairperson of G Labor Union Union, the meeting hours of the board of representatives of branches, the union members shall be 4 hours a quarter, and the union members shall be 2 hours a year. In the case of the above company, the company shall be notified by oral or written notice at least one week prior to the above company, and the company shall be recognized as the time and place of consultation.

B. In full view of the following circumstances revealed from the above facts, it is reasonable to view that Defendant A and C refused access to K and deducted wages from 0.5 minutes for 29 full time workers who were found in front of the fact constitutes unfair labor practices. Therefore, the above assertion is without merit.

① Article 7(5) of the collective agreement provides that "the education of union members shall be recognized for four hours a quarter and may be used within a year." Article 7(7) provides that "in the case of paragraph (5) above, the company shall be notified orally or in writing at least one week prior to the implementation of the education, and the date, time, and place shall be consulted with the company at the time of the implementation of the education." The purpose of the above provision is to stipulate that "the union shall autonomously determine the education of union members and notify the company one week prior to the implementation of the education," but it is reasonable to interpret that "the date, time and place" shall be "the consultation in consideration of harmony with the company's labor direction or the right to manage facilities."

In addition, Article 7 of the above collective agreement does not have any separate restrictions on whether or not 'education of union members' is conducted, the contents and methods thereof, etc., and if it is interpreted that a company may arbitrarily interpret the purpose or contents of education of union members and limit them, it is likely that the collective agreement would force the company to neglect time for 'education of union members'. Therefore, it is reasonable to see that the trade union has a broad discretion in choosing the contents or methods of 'education of union members'.

③ Ultimately, it is reasonable to deem that the Defendant Company’s act of denying K’s entry on the grounds that K invited as an instructor of “education of union members” is the status of dismissal of LA MA and its contents may adversely affect labor-management relations, and that it violates the provisions of the above collective agreement. As such, when K, an instructor, could not enter the company due to unfair measures taken by the company, it is reasonable to deem that the act of a branch where K, an instructor, changed its place to the outside of the company and proceeded with the “education of union members” as the act of a trade union.

(4) On this issue, the Defendants asserted that the non-employee union activity from the company's right to manage the facilities may refuse access to the company's facility. However, this theory seems to be applicable only when the union activity in the mountain-level labor union intends to enter the company for the business of industrial-level labor union, such as solicitation for joining the association. On the other hand, in the case where the instructors are invited from the company's internal trade union with broad discretion regarding the training of union members as in this case as in the above, the instructors are invited as instructors for the training of union members, even if they are the union's status, there seems to be no reason to be different from the outside. Accordingly, the Defendant company should have permitted access to QP trade union as if they permitted access to the outside, and the failure to do so can not be justified due to equity problems.

The Defendants on the grounds of sentencing are led to confession and reflect on the violation of the Labor Standards Act, and the violation of the Labor Union and Labor Relations Adjustment Act seems to have led to the commission of a crime by wrong legal evaluation. In addition, in relation to the violation of the Labor Standards Act, it appears that there was an agreement on overtime work to the extent that workers can recognize, and Defendant A had already been punished for committing a crime at a similar time. In this context, considering all the circumstances such as the Defendants’ age, character and conduct, motive, means and consequence of the crime, and the circumstances after the crime, the punishment is determined as ordered.

The acquittal portion

1. Facts charged;

A. Defendant C. An employer shall not control or intervene in the organization or operation of a trade union by an employee.

Nevertheless, around September 18, 2012, the Defendant refused to enter the said D Limited Company, solely on the ground that the NN, the head of the G Labor Union HU HH sub-branch, who was delegated collective bargaining by the subdivision of the HH branch, attempted to visit the labor union office to prepare collective bargaining, but did not have the date of negotiation.

Accordingly, the Defendant engaged in unfair labor practices that control and take part in the organization and operation of trade unions.

B. Defendant D Limited Liability Company

The Defendant, at the time and place specified in the above paragraph (a) above, was controlled and opened by C, a labor director of the Defendant, as above, in relation to the Defendant’s business.

2. Determination

A. According to the following facts, the following facts are acknowledged according to the following: (a) the foregoing evidence; (b) the selection of the foregoing evidence; (c) the commencement of negotiations and notification of negotiating members in 2012; (d) legitimate trade union entry; (e) the power of attorney; and (e) the results of private interviews at vulnerable workplaces in labor-management relations (D); and (e) the adjustment

(1) On September 17, 2012, the date and time of negotiations to Defendant Company: On September 18, 2012, the conference room for the first floor, the list of negotiating members for the union: on September 18, 2012, the number of negotiating members for the union: 8 persons in total, 8 persons in unit, R [Chief of Department], S [Chief of Department], T [Chief of Secretary General, UI Site], N [Chief of Organization Expenses], 5 [Chief of Branch of Site], W [Chief of Site], and W [Chief of Site], and notify the negotiating members in 2012.

② Accordingly, on September 17, 2012, the Defendant Company received a request from the branch to hold negotiations on September 18, 2012, and on September 3, 2012, it is understood that the negotiating schedule adjustment is inevitable due to the attendance of the Daejeon Regional Labor Administration and the negotiating members on the relevant day, and it is reasonable to make a final adjustment after working-level consultation on the future negotiating schedule. At the time, A was requested by the Daejeon Regional Labor Administration, and A was actually subject to a request for attendance from the Daejeon Regional Labor Administration on September 18, 2012.

③ Nevertheless, N intended to visit an office in a trade union to conduct collective bargaining on September 18, 2012, but the Defendant Company refused N’s access rather than the date of negotiation, since it did not reach an agreement on the negotiation schedule.

(4) The details of Article 105 of the collective agreement related to this part are as follows:

Article 105(Collective Negotiations)1. A request for collective bargaining shall be made on the date of request by both parties when a union or a company makes a request for the renewal of collective agreements, wages and working conditions.2. A request for collective bargaining shall be made in writing at least 10 days prior to the date of negotiation, members and contents of negotiations, and shall be made within 3 days if it is intended to modify matters requested by the other party due to unavoidable reasons.3. The negotiation committee shall be made up of not more than 8 members of the labor and management, regardless of the form of negotiation.4. In the negotiations, both parties shall be present, and the delegated person shall present his power of representation.5. The negotiating committee shall participate in negotiations as a representative who has the right of bargaining and the right of conclusion, and shall not re-consign the agreed matters.6.The proceedings shall be kept on the seventh day, but shall be kept in one copy and one copy of each labor and management representative signed by the union or the company.

B. In full view of the following circumstances revealed from the above recognized facts, it is reasonable to view that Defendant C’s refusal to enter N was justifiable or has been believed to have such authority.

① Article 105(1) of the collective agreement provides that "if there is a request for collective agreement renewal, wage and working conditions on the part of the union or the company, both parties shall comply with the date of the request." Paragraph (2) provides that "The request for collective bargaining shall be submitted in writing at least 10 days prior to the date and time of the negotiation, members and details of the negotiation, and if there is any unavoidable reason to change matters requested by the other party, it shall be notified of the request for change within 3 days." The purport of the above provision is that the trade union and both parties of the company may demand collective bargaining at any time, but the purpose of the provision is to establish a mature labor-management culture, which has been achieved as a result of prompt collective bargaining, by preventing a mature conflict between the other party's demand for collective bargaining and the other party's preparation with sufficient time.

② In addition, in a case where a company refuses to conduct legitimate collective bargaining by a trade union, a trade union may commence an industrial action. In determining whether there was a legitimate demand for collective bargaining, the trade union has a significant meaning that it has taken procedures provided for in the collective agreement. However, this does not seem to be a procedural provision. However, if it does not so, it means that the trade union may conduct collective bargaining without sufficient time for the company to demand the collective bargaining at all, and then may conduct industrial action by borrowing of such refusal. Therefore, it does not require any misappropriation.

③ Therefore, it is reasonable to view that the request for collective bargaining from September 18, 2012, which was notified 10 days prior to the “1st day” as stipulated in the collective agreement, is invalid, and that the request for collective bargaining from September 18, 2012, is not valid. Accordingly, the request from a negotiating member for a company entry on the premise that such request is valid is not justifiable.

(4) In addition, if collective bargaining is scheduled, it is reasonable that the negotiating member needs to enter a trade union office even before the date of such bargaining. However, if a trade union has requested collective bargaining prior to the scheduled date of collective bargaining as in this case, such collective bargaining cannot be conducted. In such a case, if the collective bargaining itself cannot be deemed to have been scheduled and thus, it should not be deemed that an external person can enter the company as a matter of course even if he/she is designated as the negotiating member. If it is not so, if it is extreme, it is unreasonable to excessively restrict the employer’s right of facility interests.

C. If so, this part of the facts charged against the above Defendants constitutes a case where there is no evidence of crime because it is difficult to view that this part of the facts charged is proven without reasonable doubt, and thus, a judgment of innocence is rendered under the latter part of