[1] Whether a new collective agreement is established in cases where a trade union makes a joint labor-management resolution, prepares and submits written consents to returning bonuses, etc. with an employer (affirmative), and whether the modification of the said collective agreement is effective in cases where 80% of the workers agree to the agreement between the labor and management

[2] Whether a collective agreement is a collective agreement to which more than half of workers are admitted, and whether a general binding force under Article 35 of the Labor Union and Labor Relations Adjustment Act is recognized (negative)

[3] The case holding that the provision that the return of bonus, etc. on the written consent plan for the company's self-help plan submitted by the trade union shall be null and void at the time of the company's acceptance by a third party or the change of the current highest management staff, merely has the meaning of demanding the company to make the best efforts, and it shall not be deemed as a condition of return such as bonus, etc.

[1] A new collective agreement was established to exclude the application of the existing collective agreement with the content that the trade union must make a joint resolution with the employer to return bonuses, etc., and as long as the trade union prepares and submits written consents, it shall be deemed that a new collective agreement is established to exclude the application of the previous collective agreement with the employer, and since 80% of the workers is subject to the changed collective agreement based on voluntary intent different from that of the previous collective agreement applied by the previous practice by consenting the above labor-management consultation, the effect of the amendment of the above collective agreement shall extend to the workers, who are not members of the trade union, in accordance with Article 35 of the Trade Union and Labor Relations Adjustment Act. Furthermore, regardless of whether the modified collective agreement is favorable to the workers (in a situation where large-scale dismissal is anticipated due to the managerial crisis of the company, it shall not be deemed that the collective agreement to temporarily return bonuses, etc. is disadvantageous to the

[2] Article 35 of the Labor Union and Labor Relations Adjustment Act provides that "if more than half of the workers become subject to a single collective agreement as a requirement for recognition of the general binding force of a collective agreement," it is not necessarily a general binding force only when the labor union which has joined more than half of the workers is a "collective agreement concluded by the labor union."

[3] The case holding that the provision that the return of bonus, etc. on the written consent plan for the company's self-help plan submitted by the trade union shall be null and void at the time of the company's acceptance by a third party or the change of the current highest management staff, merely has the meaning of demanding the company to make the best efforts, and it shall not be deemed as a condition of return such as bonus, etc.

[1] Articles 31 and 35 of the Labor Union and Labor Relations Adjustment Act / [2] Article 35 of the Labor Union and Labor Relations Adjustment Act / [3] Articles 105 and 147 of the Civil Act

Freeboard of America and nine others (Law Firm General Law Office, Attorneys Jeon Young-sik et al., Counsel for the plaintiff-appellant)

Abandoned Automobile Co., Ltd. (Law Firm Pacific, Attorney Lee Chang-hwan, Counsel for the plaintiff-appellant)

Seoul District Court Decision 200Da32431 delivered on December 6, 2002

July 30, 2003

1. The plaintiffs' appeal is dismissed.

2. The appeal costs are assessed against the plaintiffs.

The defendant shall pay to the plaintiffs each amount stated in the separate sheet and each of them at a rate of 20% per annum from the day after the delivery date of a copy of the complaint of this case to the day of complete payment (Partial reduction of claim in the trial).

1. Facts of recognition;

The following facts may be recognized as either a dispute between the parties, or as a whole by taking into account the whole purport of the pleadings on each of the documentary evidence stated below, and on the testimony of the Dog-based witness of the first instance court.

A. The Plaintiffs (the previous trade name was the Abandoned Motor Service Co., Ltd., but the name was changed to the Abandoned Motor Co., Ltd. on June 26, 1997, and was merged with the Defendant on June 30, 1999; hereinafter referred to as “Abandoned Motor Sales”). The Plaintiffs were employed for their duties and retired from all before September 198, 198.

B. On May 31, 1997, a majority of the total number of workers engaged in the car sales was subscribed to the Climate Sales Trade Union (hereinafter “Trade Union”) as of May 31, 1997, but around June 1997, the workers belonging to the defendant company prior to the merger, including the plaintiffs, were less than the majority of the total workers, and the plaintiffs did not join the trade union.

C. On July 15, 1997, the Aeronautical Group, to which the Aeronautical Motor Vehicle Sales belongs, decided to return bonuses, leave and monthly allowances until the normalization is achieved by holding the Central Executive Committee on July 18, 1997, and notified the company of its resolution on July 24, 1997 (Evidence 4), and submitted the notification to the company on July 29, 1997, at least three years prior to the normalization of the company's management (1.2 years prior to the end of July 29, 1997). The current collective agreement to reduce the bones of the company's business normalization as the result of the alteration of the company's self-help plan (1.2 years prior to the end of July 29, 1997), was null and void.

D. At the time when a trade union made a series of acts, such as a resolution on the return of bonus, etc., joint labor-management resolution, and submission of written consent (hereinafter “agreement between the labor and management of this case”), approximately 80% of the total workers of the previous car sales resolved to the same effect as each branch and department, and signed and consented in a document containing such contents (No. 3 and No. 10). The Plaintiffs did not participate in the resolution and signature of the above workers.

E. The bonus, monthly allowance, and leave allowance (hereinafter “the salary of this case”) from August 197 to the retirement of the plaintiffs, which were not paid upon consultation between the labor and management of this case, are as shown in the attached Form (Evidence 1). Meanwhile, according to the collective agreement (Evidence 2 and Evidence 13) concluded between the labor union and the car sales of the infant, the amount of monthly unpaid portion shall be paid in addition to 50% of ordinary wages (Article 14(6). The bonus of 70% per annum shall be paid in 100% per annum in February, April, June, August, 198, October, 111, and December, and the amount of monthly unpaid portion shall be paid in accordance with custom (Article 33), and it has also been applied to non-members of each trade union (Article 14(6).

2. Determination

A. The Plaintiffs asserted that, at the time of consultation between the labor and management of the instant case, they did not adopt or sign a resolution or sign to the purport that they agreed thereto, and that the effect of consultation between the labor and management of the instant case does not extend to the Plaintiffs, and sought the payment of the instant benefits against the Defendant who comprehensively succeeded to the sale of the car in the future.

However, according to the above facts, a new collective agreement was established with the purport of excluding the application of the existing collective agreement with the content that the trade union must make a joint resolution of the labor-management and return of automobile sales and bonus, as long as the trade union prepared and submitted a written consent to the return of automobile payment and bonus, and since 80% of the worker of the vehicle sales of the arche is subject to the changed collective agreement based on voluntary intent different from that of the previous practice by consenting to the consultation between the labor and the management of this case, the effect of the above collective agreement modification is that the plaintiffs individually consented to the return of the benefits of this case pursuant to Article 35 of the Labor Union and Labor Relations Adjustment Act, and furthermore, regardless of whether the modified collective agreement is advantageous to the worker (in a situation where large-scale dismissal is anticipated due to the crisis of the company, it cannot be deemed that the collective agreement with the contents of the changed collective agreement are disadvantageous to the worker in a long-term point of view). Accordingly, the defendant's defense pointing this out is without merit.

B. The plaintiffs again asserted that the resolution on the return, etc. of the above bonus is based on the condition that the highest management progress of the car sales of the amba and that the car sales of the amba is not accepted by a specific punishment. Since such conditions have not been fulfilled thereafter, the above resolution has lost its validity. However, in light of the circumstances and contents of the agreement between the labor and management in this case as seen above, in the agreement between the labor and management in July 29, 1997 and the agreement of August 2, 1997, each of the provisions of Article 4 in the agreement of the plaintiffs as of August 2, 1997, it is merely a declaration that the company has the meaning of demanding that the company make a best effort to return the ambath, and it cannot be deemed as a condition that the company return the bonus, etc., therefore, the plaintiffs' above assertion

C. Article 39 of the collective agreement (Evidence 3) concluded on September 16, 1998 between the trade union and the car sales of an infant, provides that the bonus payment rate shall be the same as before and after April 1, 1998, but it shall be reduced only for the portion after April 1, 1998, and the agreement (Evidence 4 and Evidence 15 No. 15) concluded on March 17, 1999 entered into between July 1, 1997 and March 31, 1998 that half of the unpaid bonus shall be divided into two parts of the unpaid bonus and the bonus shall be included in the bonus as of March 31, 1998. However, since the agreement was concluded on September 16, 1998 and the agreement was concluded on March 16, 199, it cannot be acknowledged that the above agreement was not effective before the retirement allowance payment of the Plaintiffs.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and the judgment of the court of first instance with the same conclusion is just, and the plaintiffs' appeal is dismissed.

Judges Kim Jong-il (Presiding Judge)