Plaintiff (Law Firm General Law Office, Attorneys Kang Jong-soo et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Crocheon Agricultural Cooperatives (Attorneys Cho Young-tae et al., Counsel for the plaintiff-appellant)

on March 24, 2005

Seoul Administrative Court Decision 2003Guhap32244 decided May 28, 2004

1. The following part of the judgment of the first instance is revoked:

The defendant's decision on October 6, 2003 as to the unfair labor practices between the plaintiff and the defendant's intervenor Nos. 2003No69 and 2003 No. 212 and the case of petition for review of unfair dismissal is revoked.

2. The plaintiff's remaining appeal is dismissed.

3. The remainder of the total cost of the lawsuit except for the part resulting from the participation shall be borne by the plaintiff and the defendant, and the part resulting from the participation shall be borne by the plaintiff and the defendant, respectively, and by one half, by the plaintiff and the defendant, respectively.

The judgment of the first instance shall be revoked.

The decision made by the defendant on October 6, 2003 between the plaintiff and the defendant joining the defendant is revoked with respect to the unfair labor practices in 2003No69 and 2003 No. 212 and the case of application for remedy for unfair dismissal.

1. Details of the decision on retrial;

【Ground for Recognition: Each of the descriptions, and whole purport of the arguments, as described in Gap, Eul, 2, Gap 6, Gap 9, and 13】

A. On March 14, 1991, the Plaintiff was subject to a disciplinary action for two months of suspension from office (hereinafter “instant disposition of suspension from office”) on the ground of breach of duty on December 2, 2002, and a disposition of dismissal (hereinafter “instant disposition of dismissal”) on the ground that he was sentenced to two years of suspension from office for the reason of violation of duty to obey on December 2, 2002 while he was transferred to the Defendant’s partnership through an agricultural cooperative (title 2 omitted), via the agricultural cooperative (title 3 omitted) and the agricultural cooperative (title 3 omitted) and was serving on April 16, 201 through the Defendant’s Intervenor’s partnership.

B. Accordingly, the Plaintiff asserted that the instant disposition of suspension from office or dismissal was unfair, and filed an application for relief from unfair labor practices and unfair dismissal with the Chungcheongnamnam Regional Labor Relations Commission, but the Chungcheongnamnam Regional Labor Relations Commission dismissed the said application on March 7, 2003 on the ground that it was justifiable disposition, and the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on October 6, 2003.

2. Determination on the lawfulness of the decision on retrial

A. The plaintiff's assertion

The disposition of suspension from office and dismissal of this case is illegal due to the following reasons, and thus, the judgment of reexamination of this case judged differently as it constitutes unfair labor practices should be revoked.

(1) The part concerning the instant suspension disposition

The instant suspension disposition imposed on the Plaintiff’s members of the Plaintiff’s trade union, the Secretary General of the Trade Union’s Secretariat, and the Defendant’s Intervenor’s trade union’s non-compliance with the order of employees’ non-compliance and the submission of a reason for such failure, in light of the circumstances at the time, cannot be deemed as violating the Defendant’s legitimate order. The Defendant’s Intervenor’s disciplinary action was excessively heavy compared to the grounds for the disciplinary action, and thus, has breached the authority of disciplinary action. Therefore, the Defendant’s Intervenor’s trade union committed the instant suspension disposition on the ground of the Plaintiff’s active trade union activity. Thus, the instant suspension disposition constitutes unfair

(2) The dismissal disposition part of this case

The dismissal disposition of this case on the ground that the plaintiff was sentenced to a suspended sentence as above is not attributable to the crime committed in relation to the above suspended sentence, but did not affect corporate order or cause occupational damage, and it constitutes an abuse of personnel rights against the good faith principle to make a dismissal disposition after the plaintiff continued to work with legitimate trust in labor since the defendant joining the defendant did not take any measures against the plaintiff, and thus, it constitutes an abuse of personnel rights against the good faith principle to make a dismissal disposition after the lapse of one year from that time constitutes an abuse of personnel rights. The submission of a letter of time constitutes an abuse of personnel rights, and the plaintiff has already been subject to disciplinary action against drinking and non-licensed driving, and the plaintiff has worked in good faith for a long time and has received official commendation. Thus, the dismissal disposition of this case is unlawful since the defendant joining the defendant's active trade union activity as well as the disposition of the suspended sentence of this case did not exist, it constitutes an unfair labor activity.

B. Relevant provisions of the Intervenor joining the Defendant (A 27, A 28)

Service Regulations

Article 4 (Uniforms) Any employee shall obey any legitimate order and direction of his superior in the performance of his duties.

Personnel Regulations

Article 7 (Disqualifications) (1) No person falling under any of the following subparagraphs shall be appointed as an employee:

4. A person who was sentenced to imprisonment without prison labor or a heavier punishment and for whom one year has not passed after the period of the suspension expires;

Article 61 (Dismissal) (1) Any person who falls under any of the following subparagraphs shall be dismissed:

1. When the causes under subparagraphs of Article 7 (1) have occurred or have been discovered: Provided, That the same shall not apply to the cases falling under any of the following items:

(b) Suspension of execution of imprisonment without prison labor or heavier punishment due to a traffic accident;

(c) Fact of recognition;

[Ground for Recognition: Gap 3 through 9, Gap 11, 13, 14, 15-1-8, Gap 16-1-9, Gap 19, Gap 24, Gap 25, Gap 26, Gap 30, Gap 32-1, 2, Gap 33 through 36, Eul 1, Eul 2-1, 2, Eul 3, 4, 7, Eul 1's testimony, and the whole purport of the pleadings of the court of first instance]

(1) On September 2001, the Plaintiff was sentenced to a fine of KRW 300,00 for a violation of the Punishment of Violences, etc. Act, a fine of KRW 1.5 million for a drunk driving around 1997, and a summary order of KRW 1.5 million for a drunk driving around May 2, 2001. On August 3, 2001, the Plaintiff was detained for 13 days for a drunk driving without a license and was released on December 20, 2001, and was sentenced to a suspended sentence of imprisonment of KRW 2 years for a violation of the Road Traffic Act and a community service order of KRW 80 for a non-exclusive driving under the Red Support of the Daejeon District Court of Daejeon for a violation of the Road Traffic Act, and the said judgment became final and conclusive around that time.

(2) On September 3, 2001, after the date of the release of the Plaintiff, the Plaintiff appeared at the Intervenor’s Union again, and submitted a letter of end to the Defendant’s Union on September 3, 2001, and after being sentenced to the above suspended sentence, the Defendant’s Union reported the result of the judgment to the Defendant’s Union. However, the Defendant’s Union did not take any measures against the Plaintiff in relation to the fact that such fact constitutes grounds for dismissal under Articles 61(1)1 and 7(1)4 of the Personnel Regulations

(3) After that, on December 22, 2001, the Plaintiff faithfully performed the duties entrusted to increase the practical benefits of its members and to strengthen the agricultural competitiveness, and especially contributed to the activation of direct trade business, and received a commendation from the National Agricultural Cooperative Federation Chairperson.

(4) Meanwhile, at the time of September 13, 2002, 15 workers were enrolled in the Bocheon branch of the NAF branch for employees belonging to the Defendant joining the NAF branch, and Nonparty 2 was appointed as the head of the NAF branch, and the Plaintiff was appointed as the head of the NAF branch of the NAF branch, and on September 14, 2002, five labor union assistant branches of the NAF and Bocheon-si were planned to have a sense of formation of the NAF branch.

(5) However, at around 17:00 on September 13, 2002, the head of the Defendant’s Union and the Defendant’s Union notified all employees of the official document to attend the meeting, which was held on September 14, 2002 by 08:00. Nonparty 2 and the Plaintiff determined that the purpose of interfering with the joining of the Union and exercising pressure against its members, and ordered all members to attend the meeting. On September 14, 2002, around 07:40, 2002, the Defendant’s Union and the Defendant’s union’s union’s general secretary and the head of the employee’s union should hear the speech that the purpose of the meeting is simple business instruction and notify the members to attend the meeting of the fact that 30 among 34 employees participated in the meeting.

(6) At the above staff conference, the head of the Intervenor Union’s partnership established a trade union with regard to the trade union, providing the following education: “Although the labor union, which asserts the reform of the Federation and the improvement of the treatment of its employees, is promoting the labor union in relation to the labor union, on the other hand, due to an inadequate behavior outside of the difficult rural reality, its excessive behavior should not be avoided the original and quality of farmers’ members’ members.”

(7) The staff meeting of the Intervenor joining the Defendant was held whenever it is necessary on an unspecified date, such as February 9, 200, March 4, 2002, March 8, 25, March 25, 25 of the same year, May 4, 18 (Inland) of the same year, June 8, 29 (In August 29, 2002) and July 8, 200, and July 8, 2005, and July 8, 29 of the same year, July 29, 29 of the same year, September 29, 29 (R) of the same year, November 29, 29 of the same year, and December 3, 29 (gold) of the same year, and May 5, 201 of the same year.

(8) The president of the Defendant’s Intervenor Union demanded the Plaintiff and Nonparty 2 to submit a statement of reasons for the non-compliance with the employee conference, after the completion of the employee conference. However, the Plaintiff and Nonparty 2 refused to submit a statement of reasons for the same reason, on the grounds that “the meeting was unscheduled, was held normally, and was engaged in trade union activities in the curriculum,” and that there was an act of interference with trade union activities among the curriculum,” and did not comply with the order of the president of the Union for three (3) days from September 16, 202 to September 18, 2002.

(9) Even after the Plaintiff and Nonparty 2 had the right to submit a written reason to the Plaintiff and Nonparty 2, but the Plaintiff and Nonparty 2 did not comply with this, on September 25, 2002, the Plaintiff and Nonparty 2 notified the Plaintiff and Nonparty 2 of convening and attending the personnel committee. Accordingly, on September 28, 2002, the Plaintiff and Nonparty 2 submitted a written statement stating that “the Plaintiff and Nonparty 2 should not submit a written reason because it is apparent that the head of the association would cause the employee union’s pressure,” and on October 4, 2002, the Plaintiff and Nonparty 2 were subject to disciplinary action on the grounds of violation of Article 4 of the Service Regulations in the personnel committee held without the attendance of the Plaintiff and Nonparty 2, and on the grounds of the reduction of the Plaintiff’s official commendation, the Plaintiff and Nonparty 2 notified the Plaintiff of disciplinary action.

(10) On October 15, 2002, the Plaintiff filed an application for unfair dismissal relief with the Chungcheongnamnam Regional Labor Relations Commission, and voluntarily withdrawn the application for reexamination with the Intervenor joining the Defendant. On November 4, 2002, the Intervenor joining the Defendant’s association came to know that the above suspended execution judgment against the Plaintiff constitutes grounds for dismissal in the course of examining the above application for relief. On November 12, 2002, the Defendant’s Intervenor’s association was examined as follows: (a) on November 18, 2002, by questioning the Plaintiff about the work process in accordance with the disciplinary action against the employee registry of the NAF’s branch office; and (b) around November 18, 2002, the Plaintiff was asked on November 18, 2002 that ex officio dismissal can be taken retroactively from the date of occurrence of grounds for dismissal; and (c) on November 19, 2002, by requesting the Plaintiff’s identity inquiry to the Mayor

(11) Accordingly, the Defendant’s Intervenor Union imposed a disciplinary measure for two months of suspension on December 2, 2002 against the Plaintiff on the ground of a violation of duty to obey by the Review Personnel Committee, which was held on November 30, 2002, on December 2, 2002, on the ground of a decision of suspension of execution, based on Articles 61(1)1 and 7(1)4 of the Personnel Regulations on the ground of a decision of suspension of execution.

(12) The Seoul Regional Labor Relations Commission and the National Labor Relations Commission deemed that the instant unfair labor practice and the instant request for remedy against unfair dismissal, as seen earlier, were justifiable, but the content of the instant disposition of suspension from office and dismissal, which the head of the labor union made at the above employee’s meeting, controlled or involved in the normal labor union activities in the situation where the labor union was being established, and thus, determined that it constitutes unfair labor practices.

D. Determination

(1) The part concerning the instant suspension disposition

(A) Whether grounds for disciplinary action exist

Since the act of the plaintiff's refusal to submit a statement of reason to the union members on several occasions violates Article 4 of the Service Regulations stipulating that the officer's legitimate order and instruction should be complied with, the grounds for the disciplinary action against the plaintiff should exist.

(B) Whether disciplinary action is appropriate

Considering the fact that the above employees’ meeting accounts for a large portion of instruction and education related to their duties, refusing to submit a request for submission of a statement of reasons over several times for a considerable period of time to disturb the order of workplace deceptive scheme, failure to submit a statement to the personnel committee to the effect that it was not erroneous to do so, and Nonparty 2, the chief officer of the division, was under the circumstances of receiving disciplinary mitigation from the Minister of Agriculture and Forestry, it is difficult to deem that the Intervenor’s Intervenor’s Intervenor’s association chosen two months of suspension as a disciplinary measure against the Plaintiff

(C) Whether the act constitutes unfair labor practice

The evidence Nos. 32-1 and 2 and the testimony of non-party 1 by the witness of the court of first instance is insufficient to recognize that the Intervenor’s Intervenor’s Union committed the Plaintiff’s active trade union activity, and there is no other evidence to acknowledge it otherwise. Furthermore, in a case where the employer took disciplinary action on justifiable grounds, even though the employer is unable to engage in the employee’s trade union activity or is presumed to have the intention of the anti-trade union, it does not constitute an unfair labor practice (see, e.g., Supreme Court Decision 98Du4672, Mar. 26, 199). As seen above, the Defendant’s Intervenor’s instant suspension disposition against the Plaintiff of the Intervenor’s Union does not constitute an unfair labor practice. Thus, it does not constitute an unfair labor practice.

(D) Therefore, the Plaintiff’s assertion regarding the instant suspension disposition is without merit.

(2) The dismissal disposition part of this case

(A) First, we examine whether there is a justifiable reason for the instant dismissal disposition.

Any dismissal from office is a termination of a labor relationship by the employer's unilateral intent regardless of the worker's will and is therefore a dismissal from office. Therefore, in order for the dismissal from office to be valid, there must be justifiable grounds in accordance with Article 30 (1) of the Labor Standards Act, and in order for the dismissal to be justified, there must be grounds for the worker's responsibility to the extent that the worker's employment relationship cannot be continued under the social norms. Whether it is impossible to continue the employee's employment relationship with the worker in question under the social norms should be determined by comprehensively examining various circumstances such as the purpose and nature of the employer's business, conditions of the workplace, status of the worker in question, details of the worker in charge, motive and circumstance of the act of misconduct, impact on the company's business order, risk of disturbing the company's deceptive order, and past work attitude (see, e.g., Supreme Court Decision

The plaintiff was sentenced to a suspended sentence of imprisonment for violating the Road Traffic Act by driving a drinking or non-exclusive license, even though he had been sentenced two times as a result of drinking driving, and the defendant's intervenor association dismissed the plaintiff under the above provision. However, it is difficult to view that the defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's allegation that the defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's defendant's remaining in labor relations with the plaintiff's employer's employer's non-performance with the same reason for disqualification as the defendant's defendant's defendant's defendant's defendant's above with no reason for dismissal as the defendant's defendant's defendant's above with no reason for dismissal of the defendant's defendant's defendant's defendant's above 2's defendant's defendant's dismissal.

(B) If so, the disposition of dismissal of this case is unlawful because it is no longer necessary to examine the remaining claims of the plaintiff.

3. Conclusion

Therefore, since the part of the plaintiff's claim seeking the revocation of the decision of the retrial of this case is well-grounded, the part of the decision of the retrial of this case concerning the rejection of unfair dismissal shall be revoked, and the remaining part shall be dismissed as it is without merit. Since the decision of the first instance is partially unfair, it is so unfair that the plaintiff's appeal of this case is partially accepted

Judges Hong Sung-hee (Presiding Judge)