2014No1314 Violation of the Labor Union and Labor Relations Adjustment Act

A

Defendant

J. J. J. J. J. (Court of First Instance)

Law Firm B

Attorney C, D

Seoul Western District Court Decision 2013 High Court Decision 2013 High Court Decision 671 Decided September 24, 2014

2015,5.8

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal;

(1) The G Workers' Union (hereinafter referred to as the "G Workers' Union") that the defendant was the representative is one of the headquarters, which is the affiliate organizations of the National Transport Industry Labor Union (hereinafter referred to as the "Transportation Labor Union"), and since the dismissed and the unemployed are also members of the association as an affiliate organization under the Industrial Separate Labor Union, the G Workers' Union (hereinafter referred to as the "G Workers' Union") shall not be deemed to violate the rules of G Labor Union (hereinafter referred to as the "Resolution of this case").

(2) According to Article 21(2) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), when it is deemed that a resolution of a trade union is in violation of the rules, administrative authorities may issue a corrective order only upon the application of an interested party. Since G applying for a corrective order of the instant resolution does not constitute an interested party, the instant corrective order is unlawful.

(3) Nevertheless, the court below erred by misapprehending the legal principles in finding guilty of the facts charged in this case.

2. Determination

A. Whether the resolution of this case violates the rules

(1) Facts of recognition

According to the evidence duly adopted and examined by the court below, the following facts can be acknowledged.

1) Around November 2006, G Labor Relations Adjustment resolved to convert it to the G Headquarters in transportation labor union with the attendance of a majority of registered union members and the consent of two-thirds of union members present. Accordingly, on December 26, 2006, the organization was changed to the National Transport Labor Relations Headquarters.

2) On September 1, 2009, G Labor Union was reported to establish a trade union as the Industrial Labor Union Branch (National Transport Labor Union G Headquarters). On September 4, 2009, G Labor Union was issued a certificate of report on establishment of the trade union as an industrial labor union by the Seoul Regional Employment and Labor Agency of the Seoul Western District.

3) Even after the aforementioned change of organization, G Labor Relations Adjustment has its own rules and executive organs, and it independently conducted collective bargaining and concluded collective agreements with G without being delegated with the right to collective bargaining and the right to conclude collective agreements from the transportation labor union.

4) Article 7 of the GATT provides that “This association shall consist of the employees working in G and the employees working in G-related industries and related industries,” and Article 9 provides that “the deprivation of membership shall be automatically lost in the case of death, retirement or expulsion.”

5) Meanwhile, Article 7 of the Regulations on Trade Union includes “any worker engaged in the transportation industry and related fields,” “the dismissed, the unemployed, the retired, the prospective worker, and the person appointed to an association related to the transportation industry” for the organization. Article 4 of the Addenda provides that “The regulations and all provisions of the previous unit trade union at the time of the enforcement of this Agreement shall be deemed effective until the establishment of all the regulations of the headquarters or branch offices to the extent that they do not violate this regulations.”

6) Around May 4, 2011, G Labor Relations Adjustment adopted the instant resolution to select I who were employed as an employee in G and dismissed on January 14, 2010 as the head of G Labor Relations Coordination J branch, and K removed on January 4, 201 as the head of G Labor Relations Coordination L branch, respectively.

7) On this issue, G applied for a corrective order to the Seoul Western District Office for the instant resolution that violated the General Labor Relations Adjustment Regulations, and the head of the Seoul Western District Office recognized that the instant resolution violated Articles 7 and 9 of the G Labor Relations Adjustment Regulations, and ordered the Defendant, the chairperson of the Seoul Western District Office, to take corrective measures until April 17, 2012 (hereinafter “instant corrective order”). Nevertheless, the Defendant failed to comply with the instant resolution.

(2) Determination

According to Articles 7 and 9 of the General Labor Relations Adjustment Rules, a person dismissed for work in G is not qualified as a member of the General Labor Relations Group, and thus, the resolution of this case in which I and K are elected for the head of the branch of G Labor Relations Group shall be deemed to be in violation of the above rules.

In this regard, according to Article 4 of the Addenda to the Regulations on Transportation Labor Unions, the defendant stipulates that the previous regulations on a unit labor union converting a structural change into a transportation labor union shall be valid within the extent not violating the regulations on transport labor union. Article 7 of the Regulations on Labor union violates Article 7 of the Regulations, so Article 7 of the Rules on Labor union shall be interpreted in good faith to the extent that it does not violate the regulations on transport labor union, and so, the dismissed person shall be qualified as a member of the transport labor union and the member of the G labor union. However, in the interpretation of Article 7 of the Rules on Labor union, it is obvious that the dismissed person is not qualified as a member of the G labor union, and as alleged by the defendant, it is evident that the dismissed person is an affiliate organization of the transportation labor union, which is an industrial labor union, and even if the dismissed person may be included in the organization, without revising the regulations, it is difficult to deem that the above regulations itself violates Article 7 of the Regulations on Transport union, which includes the dismissed person as an organization member, and thus, it cannot be regarded as a member of the G labor union.

Therefore, the instant corrective order is lawful on the grounds that the resolution of this case violates the General Labor Relations Adjustment Regulations. Therefore, this part of the Defendant’s assertion is without merit.

B. Whether G is an interested party

The proviso of Article 21 (2) of the Trade Union Act provides that "the corrective order in the event of a violation of the Code shall be issued only upon the request of an interested party". The "interested party" refers to a person who is directly related to the contents of the resolution or disposition of the trade union or has an interest in it, and if the resolution or disposition of the trade union affects the employer, the interested party

As in the instant case, it is reasonable to see that the employer has an interest in the resolution to select the dismissed person as the officers or executives of the Trade Union and so that the pertinent executives or executives may participate in the collective bargaining activities against the employer, such as a party to collective bargaining such as the negotiating members on the side of the trade union. As such, G, the employer, also constitutes “interested persons” as provided in Article 21(2) of the Trade Union Act. Accordingly, the instant corrective order issued upon the application by G is lawful. Therefore, the Defendant’s assertion on this part is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The average judge of presiding judge

Judges Chief Judge

Judge Doocom