The validity of dismissal under the union shop agreement

The union shop agreement is recognized based on the spirit of the Trade Union Act that seeks to protect the union's right to organize even if some of the rights under the employment contract of individual workers or the freedom not to join in the union union, so in order to be valid by dismissal under the above agreement, it is necessary to do so in order to protect the union's right to organize, and even if dismissal under the union shop agreement was made in form, it is an abuse of the right to dismiss against the spirit of the Trade Union Act.

Article 39 subparagraph 2 of the Trade Union Act

Plaintiff

Defendant Stock Company

Seoul High Court Decision 9Da64489 delivered on February 4, 1993

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

On January 23, 1992, the defendant confirmed that dismissal against the plaintiff is null and void.

The judgment of the court below shall be revoked.

The plaintiff's claim is dismissed.

1. Main safety defense;

The defendant, a company that entered into a union shop agreement with the labor union, dismissed the plaintiff pursuant to the provisions of a collective agreement with the labor union, and then the plaintiff first seeks confirmation of union membership status against the labor union, the plaintiff can not seek confirmation of invalidity of dismissal against the defendant company. Thus, the lawsuit of this case is not unlawful and dismissed. Thus, it is argued that the plaintiff shall not seek confirmation of invalidity of dismissal against the defendant company. Thus, on January 13, 1992, when the plaintiff joined the defendant company on February 4, 1984 and worked as an operator as an employee, the defendant company's trade union (the name is the Seoul bus Branch (the name omitted) branch of the Korean Automobile Workers' Union, and the union members' union (the name is the union; hereinafter the same shall apply) was withdrawn on January 23, 1992. However, the fact that the plaintiff was dismissed pursuant to the collective agreement after the plaintiff's dismissal, even if he won a lawsuit seeking confirmation of union membership status against the labor union, it is not immediately denied the validity of the dismissal in this case.

2. Judgment on the merits

A. Basic facts

The following facts can be acknowledged by comprehensively taking account of all the arguments in the evidence No. 1 (Notice of Dismissal), Evidence No. 2 (Collective Agreement), Evidence No. 11 (Collective Agreement), Evidence No. 12 (Collective Agreement), Evidence No. 12 (Rules of Employment), Evidence No. 2 (Collective Agreement No. 1990), Evidence No. 3 (Collective Agreement No. 1991), Evidence No. 4-1 (Cooperation due to Withdrawal of Subdivision Members), 2 (Withdrawal), and Evidence No. 5 and 6 (Promotion of Compliance of each Collective Agreement).

(A) On February 4, 1984, the Plaintiff was dismissed as of January 13, 1992 on the ground that he left the Defendant Company’s Trade Union on the ground that he was employed as a driver on February 4, 1984.

(B) Under the collective agreement in 1989, the Defendant Company and the Trade Union recognized that the employee automatically becomes a member of the Trade Union at the time of his membership, and that the employee must be dismissed when he does not join or withdraws from the Trade Union (Article 4). This provision continues to exist in the collective agreement in 1990 and in the collective agreement in 191.

(C) On December 23, 191, the Plaintiff joined the Defendant Company and worked as an auditor of the Trade Union and Labor Relations Adjustment, and performed an election campaign by supporting the candidates for the non-party leap country who was going to an election for the head of the Trade Union and Labor Relations Adjustment Division on December 23, 191, but the non-party stigated, the Plaintiff decided to withdraw from the Trade Union and Labor Relations Adjustment along with some members in a way of resisting the conflicts inside the Trade Union and Labor Relations Adjustment Division head, and the plaintiff, non-party 1 and 2-3 of January 13, 192, the 14th of the same month, the 15th of the same month, the 3rd of the same month, and the 16th

(D) Accordingly, the Trade Union demanded the Defendant Company to dismiss the withdrawing person under the above collective agreement, and the Defendant Company also announced that the withdrawing person would be dismissed under the above collective agreement, unless other appropriate measures are taken against the withdrawing person on the 17th of the same month, but was dismissed on January 23, 192 from the Trade Union as of January 23, 1992.

B. Plaintiff’s assertion and judgment

(1) Notes

With respect to the plaintiff's assertion that the above dismissal is null and void because it does not have justifiable grounds or constitutes abuse of the right of dismissal, the defendant company asserted that the above dismissal was made pursuant to the Nicea shop agreement under the collective agreement, as well as that the plaintiff's dismissal was made pursuant to the defendant company's union shop agreement, and that the above dismissal was justified since the plaintiff has been

(2) Determination:

If a trade union represents not less than 2/3 of the workers employed in the workplace concerned pursuant to the proviso of Article 39 subparagraph 2 of the Act, it may enter into a collective agreement with the employment condition that the workers should become the members of the trade union. Accordingly, the above collective agreement provisions of the defendant company shall be valid as a union shop agreement. In such a case, the employer shall not be able to take any disadvantageous measures against the status of the workers on the ground that the workers are expelled from the trade union pursuant to the above provisions of the trade union Act, but if the workers voluntarily withdraw from the trade union, the workers may be dismissed pursuant to the above collective agreement.

However, since the union shop agreement is acknowledged to be based on the spirit of the Trade Union Act intending to sacrifice part of the rights of individual workers or freedom not to join the above labor union, it is necessary to take measures to protect the union's right to organize. Even if dismissal based on the union shop agreement was made in form, it is not permitted as abuse of the right to dismiss against the spirit of the above Trade Union Act. As to the above case, Gap's No. 5 (trade union membership), Gap's No. 6 (excluding the content certification, and the subsequent part)'s refusal to withdraw from the office, and the plaintiff's withdrawal from office again constitutes a violation of the above provision of the above provision of the Trade Union Act, and thus, the plaintiff's withdrawal and withdrawal from office cannot be allowed as to the defendant's non-party 2's withdrawal from office, such as the plaintiff's withdrawal from office and the non-party 1's withdrawal from office, the plaintiff's withdrawal from office and the non-party 2's withdrawal from office, as well as the plaintiff's non-party 1's non-party 3's withdrawal from office.

C. Defendant’s assertion

(1) The defendant company asserted that the plaintiff was unfairly dismissed due to the plaintiff's multiple appeals, accusations, lawsuits, etc., but this does not constitute grounds for dismissal at the time of the above dismissal, nor does there exist any evidence that the plaintiff acknowledged that the defendant company had filed an unfair appeal, accusation, or lawsuit against the defendant company, and therefore, it does not accept the above assertion as without merit.

(2) On April 14, 192, the defendant did not make any reservation or condition of objection while receiving retirement allowances and dismissal allowances from the defendant company. On the premise that the defendant company retired, the defendant company filed a lawsuit claiming wages against the defendant company on March 31, 1992, including night work allowances and overtime allowances on the day immediately before and after holidays, and it is deemed that the above dismissal was impliedly approved by the defendant company. Accordingly, the plaintiff asserted that the validity of dismissal is against the principle of good faith or the principle of notions, and therefore, the plaintiff's dismissal was not subject to the 15th evidence, Gap evidence 16 (Evidence Certificate), Eul evidence 11-1, 2, Eul evidence 13-1, Eul evidence 13-1, and Eul evidence 13-1, and the purport of oral argument and arguments, and the plaintiff's dismissal was not subject to prior notice of dismissal to the defendant company 19-1, 24, and 194 of the Labor Standards Act.

3. Conclusion

Therefore, the above dismissal is null and void as it is an abuse of the right of dismissal without any justifiable reason, and as long as the defendant company contests this issue, the plaintiff's claim in this case shall be accepted as reasonable, and the judgment of the court below is justified, and it is so decided as per Disposition by the defendant's appeal.

Judges Lee Jong-young (Presiding Judge)