2013Du13051. Revocation of the Tribunal for Remedy against Unfair Suspension and Unfair Labor Practices

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A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

10. J

11. K;

12. L.

The Chairman of the National Labor Relations Commission

M Co., Ltd

Seoul High Court Decision 2012Nu8344 Decided May 30, 2013

March 24, 2016

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal by the Defendant and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”).

A. Articles 16(1)8 and 16(2) (hereinafter “instant provision”) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) which allow a trade union to make a structural change through a resolution at a general meeting with the attendance of a majority of the incumbent union members and the affirmative votes of two-thirds or more of those present members during the process of establishment and existence of a trade union. This does not apply to the mere internal organization or organization of a trade union under the Trade Union Act. However, even if an industrial trade union’s subdivision, etc. is an industrial trade union’s subdivision, etc., it does not apply to the mere internal organization or organization of a trade union. However, in cases where a trade union is an independent workers organization of a trade union composed of workers belonging to a single company and has the substance of a trade union capable of independently conducting collective bargaining and concluding collective agreements, or where it is an unincorporated association of a trade union that is not a juristic person, it shall be deemed that it may change its affiliation through an independent and democratic general meeting resolution satisfying the requirements set forth in this case and convert it into an independent trade union (see Supreme Court en banc Decision 2016).

B. According to the reasoning of the judgment below, ① the Korean Metal Trade Union and its N branch (hereinafter referred to as the “N branch”) incorporated into the Korea Metal Trade Union, an industrial trade union, has repeatedly passed a resolution on the structural change of which the organization is changed into a company-level trade union, and the establishment of bylaws, and on the appointment of officers such as the selection of the chairman (hereinafter referred to as the “resolution on the structural change of this case”), and the above election resolution was called the “decision on the election of officers”. ② The intervenor requested the MM Trade Union to notify five members of the workers disciplinary committee in accordance with the collective agreement with N branch in order to organize the disciplinary committee against the plaintiffs. The intervenor was notified of the list and five members of the employer disciplinary committee and composed of disciplinary action against the plaintiffs on May 19, 2010, ③ The intervenor was notified of the result of the disciplinary action by the suspension of office and the result of the disciplinary action against the plaintiffs.

Examining such factual relations in light of the legal principles as seen earlier, in a case where it is deemed independent as a workers’ organization similar to a company-level trade union, as a workers’ organization having the substance of an unincorporated association, even though it is not capable of collective bargaining and concluding a collective agreement as a subdivision of the National Metal Trade Union, which is an industrial trade union, in light of its establishment process, its articles of association and bylaws, management and operation status, and specific activities, the organization of an independent company-level trade union may be established by a resolution on structural change as stipulated in the instant provision beyond the status of a subdivision, etc. affiliated with the National Metal Trade Union. Therefore, it cannot be concluded that the instant resolution on structural change is null and void solely on the ground that it is a resolution on structural change, and the instant resolution on the election of executive officers, which

C. Nevertheless, the lower court determined that the instant resolution on structural change is null and void on the ground that it cannot be deemed as an independent trade union capable of independent collective bargaining and concluding collective agreements, and that the instant resolution on structural change was made on the premise that the structural change is valid, and that the instant resolution on the appointment of executive officers was also null and void. In so doing, the lower court erred by misapprehending the legal doctrine on structural change of an industrial trade union subdivision, etc., and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. Regarding the plaintiffs' grounds of appeal

A. Unlike the grounds of disciplinary action such as suspension from office for a worker, if an employer is deemed to have taken a disciplinary action on the ground of a worker’s legitimate labor union activity, the relevant disciplinary action ought to be deemed unfair labor practice. Whether a substantial disciplinary action for the worker’s trade union operation was determined by the employer should be determined by comparing and examining the grounds of disciplinary action, the contents of justifiable acts for the worker’s trade union operation, the timing of the disciplinary action, the relationship between the employer and the trade union, the imbalance between the sanctions against the union members and non-members in the same kind of case, whether the previous practice complies with the previous practice, the employer’s speech and behavior or attitude toward the worker’s union members, and all other circumstances that can presume the existence of an employer’s intent to engage in unfair labor practice (see, e.g., Supreme Court Decision 9Du2963, Apr. 11, 200).

B. According to the reasoning of the lower judgment and the record, ① the Intervenor was sent part of the security service to the service company from February 9, 2010 to February 12, 2010, and the Intervenor took a lock-out from February 16, 2010 to prohibit the entry of union members into the entire factory as against the Intervenor, and thereafter N branch members have deteriorated the relationship between N branch and the Intervenor by entering the factory or holding an assembly; ② the Intervenor and the labor law firm creative consulting (hereinafter referred to as “original consulting”) as of April 16, 2010; ② the Intervenor’s consultation on labor-management relations between the Intervenor and the labor law firm was referred to as “in the event that the Intervenor provided all matters related to labor-management relations with the Intervenor for five months in the future, 30 joint labor-management relations with the Intervenor, and 10 joint labor-management relations with the Intervenor, 20 joint labor-management relations with the Intervenor, and 30 joint labor-management relations with the Intervenor.”

6. As a person, the document prepared the 'Industrial Actions Response Strategic Meeting'. The document prepared a document stating that the intervenor maintained a lock-out and led the union members to withdraw and promote a structural change into a company-level trade union to reduce the number of union members in order to build a cooperative labor-management relationship. The creative consulting prepared a document stating that the 'Industrial Actions Response Strategic Meeting' consisting of a new executive organ or a change of the N branch' into a company-level trade union into a company-level trade union by embodying the above method for four times thereafter, and made a new disciplinary action on the 10th anniversary of the change into a company-level trade union; 4. Some union members of the N branch organized the 'Meeting of union members for the 'as of April 20, 2010' as representative; 20th of the 10th of the 2nd of the 10th of the 1st of the 2nd of the 10th of the 2nd of the 10th of the 2nd of the 10th of the 2nd of the 10th of the 10th of the Plaintiff.

Examining the following circumstances revealed from the aforementioned factual basis, i.e., the N branch and the Intervenor’s relationship aggravated by lock-out, etc.; the content of the contract between the intervenor and the creative consulting and the content of the document written by the intervenor’s creative consulting with the aim of nullifying the N branch or making a structural change into a company-level trade union; the Plaintiffs’ disciplinary action against the N branch began from the date immediately after the N branch’s structural change was made into a company-level trade union; two times for Plaintiff B and C; and three times for the rest of the Plaintiffs, etc., there is no room to deem that the disciplinary action against the Plaintiffs was actually based on the Plaintiffs’ trade union activity. Accordingly, the lower court should have deliberated on whether the disciplinary action against the Plaintiffs accords with previous practices and whether the sanctions against the union members and non-members, the Intervenor’s speech and behavior or attitude toward the Intervenor’s union members, and all other circumstances presumed the existence of unfair labor practices, and should have determined the Plaintiffs’ trade union activity more specifically based on the Plaintiffs’ disciplinary action.

In addition, Article 81 subparag. 4 of the Trade Union Act prohibits “the act of an employee to control or intervene in the organization or operation of a trade union” by stipulating “the act of an employee to control or intervene in such organization or operation of a trade union” as unfair labor practice. If the facts of this case are as seen earlier, the lower court should have deliberated closely on the impact of disciplinary action against the Plaintiffs, which was conducted through such a series of processes, on or may have influenced the activities of N branches or trade union members or union members, and on or before and after the formation of the intervenor’s control or intervention, and determined whether the intervenor intended to control or intervene in the organization or operation of a trade union.

C. Nevertheless, the court below determined that disciplinary action against the plaintiffs does not constitute unfair labor practice on the sole basis of its stated reasoning. Thus, the court below erred by misapprehending the legal principles on unfair labor practice and failing to properly examine necessary matters, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendant and the Intervenor, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de

Note Justice Lee Sang-hoon

Justices Kim Jae-tae

Justices Park Sang-ok