In a case where the collective agreement entered into between Company A and the Trade Union provides that “executive officers and employees who are at least in the class of director treatment” shall not be a partner, and if a partner falls thereunder, he/she shall lose his/her membership; however, when the chairman of the Trade Union was elected as the chairman of the Trade Union after promotion to the class of director treatment, the case holding that Company A cannot conduct collective bargaining with Company B on the ground that Party B’s membership cannot be recognized as a member of the Trade Union on the ground that Party B’s membership cannot be recognized as a member of the Trade Union under the collective agreement, the case holding that Company B cannot be deemed as a member of the Trade Union’s union’s rules, and Company B bears the obligation to comply with collective bargaining with the Trade Union

In the collective agreement concluded between Company A and the Trade Union, “executive officers and employees at least the grade of director” cannot be a partner, and if a partner falls thereunder, he/she shall lose his/her membership. After promoting B to the class of director treatment, he/she was elected as the chairman of the Trade Union, the case holding that Company A cannot conduct collective bargaining with the Trade Union as a person in charge of collective bargaining on the ground that it cannot be recognized as the chairman of the Trade Union on the ground that Party B loses its membership pursuant to the collective agreement

The case holding that limiting the scope of union members under the collective agreement may infringe on the autonomy of a trade union because it may depend on the autonomous right of association of workers guaranteed by the Constitution and the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), and thus, it is reasonable to view the collective agreement to the purport that it limits the scope of union members to the extent of workers subject to the collective agreement, i.e., the collective agreement to the extent that it limits the scope of union members, and that it does not restrict the qualification of union members, and that it cannot be deemed that Eul constitutes union members under the rules of the trade union is not disqualified pursuant to the above collective agreement, and that Eul is also recognized as the qualification of union members, and that Eul is also recognized as the chairperson of the trade union, and thus, it has the authority to negotiate with Gap company as the representative of the trade union pursuant to Article 29 (1) of the Trade Union Act, and that Gap company bears the obligation to comply with collective bargaining with the trade union and collective bargaining pursuant to Article 30 of the Trade Union Act.

Article 33(1) of the Constitution of the Republic of Korea; Articles 1, 5, 11, 29(1), 30, and 35 of the Trade Union and Labor Relations Adjustment Act; Article 300(2) of the Civil Procedure Act

National Construction Enterprise Trade Union (State) Trian Branch and one other (Attorney Kim Young-deok, Counsel for the plaintiff-appellant)

Saman Co., Ltd. (Bae & Yang LLC, Attorneys Han-soo et al., Counsel for the defendant-appellant)

1. The debtor shall comply with the collective bargaining request made by the National Construction Enterprise Trade Union (State) Trian Branch of Korea, the representative of which is creditor 2 with respect to the matters for bargaining as stated in attached Table 1;

2. The debtor shall not obstruct the creditor 2's trade union activities as the representative of the national construction enterprise trade union (main) third party branch office;

3. A creditor's national construction company trade union (main) application for the remaining collective bargaining defeat and the creditor's union's application for guarantee of all of its activities shall be dismissed;

4. The costs of lawsuit shall be borne by the obligor;

1. The debtor shall respond to collective bargaining in relation to the creditor's collective bargaining claim filed by the Korea Construction Enterprise Workers' Union (State) Trian Branch (hereinafter referred to as the "creditor Trian Branch") with the representative of negotiating creditor 2 as to the matters of bargaining stated in the attached Table 2.

2. In the first place, the debtor, as the representative of the creditor Saman District Office, shall guarantee the creditor 2's partnership activities. Preliminary, Paragraph 2 of this Article.

1. Judgment on the application for collective bargaining refusal by the creditor Saman District Office

(a) be deemed, first of all, as a creditor’s membership under a collective agreement of 2014, to be denied;

According to the overall purport of the records and examination of this case, Article 4 of the collective agreement between the creditor Saman District Office and the debtor in 2014 provides for the scope of union members, and Article 1 subparagraph 1 of the collective agreement provides that "any officer or employee (registration non-existence or non-existence) of the current company's class shall not be union members." Article 4 (2) provides that "if a union member falls under any subparagraph of the preceding paragraph, he/she shall lose his/her membership for the pertinent period as of the date of personnel announcement." The creditor 2 promoted from the class of director within the debtor company to the class of director treatment. The creditor 2 was elected as the chairperson of the creditor Saman District Office on November 17, 2017, and the debtor is disqualified as union members under Article 4 of the above collective agreement, and therefore, the creditor 2 cannot be acknowledged as the chairperson of the creditor Saman District Office."

Meanwhile, according to Articles 5 and 11 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), workers may freely organize or join a trade union. Specifically, the scope of union members of a trade union shall be determined in accordance with the trade union’s bylaws, and employees shall be qualified as union members by freely joining the trade union in accordance with the trade union’s bylaws (see, e.g., Supreme Court Decision 2001Du10264, Dec. 26, 2003). However, limiting the scope of union members under the autonomous rules of a trade union in a collective agreement may infringe upon the autonomy of the trade union by referring to the restriction on workers’ independent right to organize under the Constitution and the Trade Union Act, depending on their agreement with the employer. Accordingly, Article 4 of the above collective agreement aims to exclude workers from the application of the above collective agreement (see, e.g., Supreme Court Decision 2001Du680, Jan. 29, 2004).

Therefore, it cannot be deemed that creditors 2, who are union members under the rules of a trade union, become disqualified as union members pursuant to the above collective agreement, and creditors 2 are admitted as creditors 3-2, and the creditor 2's creditor 3-2's creditor 2 is also recognized as the chairman of the Labor Union Act. The creditor 2 has the right to negotiate with the debtor as the representative of the creditor 3-2 branch as the employer pursuant to Article 29(1) of the Trade Union Act, and the debtor bears the obligation to comply with the collective bargaining with the creditors 3-2 as the employer pursuant to Article 30 of the Trade Union Act (Article 3 of the matters of negotiation stated in attached Table 2 of the purport of the application does not specify the contents of the "collective bargaining request by class normalization by class" as the contents of negotiation (Article 37 of the creditor 37) and the contents of the "collective bargaining request by class" in attached Table 2 of the purport of the application are unclear.

B. The debtor seems to conduct collective bargaining with the Korea Construction Enterprise Trade Union, which is a superior organization of the creditor Saman District Office. However, in relation to the legitimacy of delegation of collective bargaining or the selection of negotiating members, the existence or absence of the chairman's qualification of the 3rd party branch of creditor 2 is still an issue. ② Even if there is no separate declaration of intent such as termination after delegation of the right to collective bargaining, the labor union's collective bargaining right still remains concurrently with the delegated collective bargaining authority (see Supreme Court Decision 98Da20790, Nov. 13, 1998, etc.) (3) as well as the possibility that the 3rd party branch of creditor is likely to directly conduct collective bargaining with the debtor, it is also recognized that the need to order a provisional disposition to refuse collective bargaining should be maintained.

2. Judgment as to the creditor's application for guaranteeing the creditor's union's activities (the main claim in Paragraph 2 of the purport of the application)

If an employer interferes with or attempts to intervene in the activities of a trade union or the operation of a trade union, an employee or a trade union may seek a provisional injunction against the infringement of the right to organize (Interference with union activities) by claiming the right to prevent interference based on the right to organize. However, without specifying the details and scope of the plan, the creditors seek provisional injunction against the employer, who is the representative of the proposed branch office, to guarantee the creditor 2's union activities as the representative of the proposed branch office, without specifying the contents and scope of the plan. However, it is reasonable to deem that the filing of provisional injunction against union activities exceeds the limit of provisional injunction

3. Judgment on the obligees' motion for prohibition of interference with the obligees' activities (the motion's motion's motion's conjunctive motion's motion's motion)

As seen earlier, it appears that the obligee 2’s entitlement to the chairperson of the obligee Saman Branch appears to be recognized. The obligor denies the obligee 2’s entitlement to membership and the obligee Saman Branch’s entitlement as the chairperson on the ground of collective agreement. The obligee Saman Branch has the right to engage in legitimate partnership activities in order to guarantee the right to organize, collective bargaining, etc. pursuant to relevant Acts and subordinate statutes and the collective agreement with the obligor. For the realization of the above right, the obligee Saman Branch has the right to seek prohibition of interference with union activities by the officers belonging to the obligee Saman Branch’s officers. The obligee 2 also has the right to engage in legitimate partnership activities as a representative of the obligee Saman Branch, and the obligor has the right to seek prohibition of interference with union activities. In addition, the obligee Saman Branch notified the obligor 2 as the obligor is not a member of the obligee 2, and the obligor cannot accept the obligee’s request by the obligee Saman Branch, and the obligee 2 is acknowledged as being in full view of the need for interference with the obligee’s legal interests and interests as a whole.

4. Conclusion

Therefore, the creditor's application for prohibition of interference with the creditor's union activities shall be accepted for the reasons, and the creditor's application for refusal of collective bargaining by the trian District Office shall be accepted within the scope of the above recognition, and the remaining application for refusal of collective bargaining and the creditor's application for guarantee of creditor's union activities shall be dismissed

[Attachment 1] Negotiations: omitted

[Attachment 2] Negotiations: omitted

Judges Kim Jong-sung (Presiding Judge)