A. The purport of the provision that “the company disciplinary action against union members shall be governed by this Convention” in a collective agreement, and in such a case, whether only the collective agreement can be the basis for disciplinary action against union members (negative)

B. Purport that a collective agreement provides that a person whose punishment for not less than six months has been determined for cases other than “business” shall be one of the grounds for dismissal of union members, and whether a trade union’s business operations are included in “business” as referred to in the said provision (negative

(c) Whether dismissal of workers constitutes unfair labor practices and disciplinary procedures are in violation of the provisions of the collective agreement.

A. Article 19 (Penal Provisions) of the collective agreement provides that "the company disciplinary action against a union member shall be governed by this Convention" means that the collective agreement shall take precedence over the application of the provisions of the collective agreement in respect of the same disciplinary action or disciplinary procedure where the provisions of the collective agreement and the rules of employment conflict with each other with respect to the same disciplinary action or disciplinary procedure, and it does not state that, in any case, the rules of employment, etc. which provide matters concerning disciplinary action cannot be a basis

B. The purport of the collective agreement, which provides for a person who has been sentenced to imprisonment for not less than six months for a criminal offense other than the "business", as one of the grounds for dismissal for the members of a trade union, is to set more strict than the requirements for dismissal for a person who was sentenced to criminal punishment for a criminal case related to the performance of the company's requirements for dismissal due to a non-business case, on the ground that the contents of the judgment, in the case of a member who was convicted for a criminal case other than a business unrelated to the company, unlike the case where criminal punishment is imposed due to the performance of the company's duties, shall be deemed to be the ground for dismissal only when the contents of the judgment are "a sentence exceeding

C. Whether dismissal of workers constitutes unfair labor practice shall be determined by comparing and determining comprehensively the grounds for dismissal and the contents of justifiable act for the labor union affairs of an employer, the time when disciplinary dismissal was made, the relationship between the employer and the labor union, and all other circumstances that can presume the existence of an intent to engage in unfair labor practice. Thus, even if the circumstances such as the violation of the provisions of a collective agreement can be one of the materials for determining the intent to engage in unfair labor practice, it does not necessarily constitute a critical factor that naturally affects the establishment of unfair labor practice, regardless of whether the violation of the disciplinary procedure is invalid.

(b)Article 94(c) of the Labor Standards Act; Article 39(1) of the Trade Union Act;

C. Supreme Court Decision 90Nu2116 decided Dec. 26, 1990 (Gong1991,651) 90Nu7685 decided Apr. 23, 1991 (Gong1991,1518) 91Nu9572 decided Feb. 28, 1992 (Gong192,1190)

Plaintiff 1 and 3 others, Counsel for the plaintiff-appellant

The Chairperson of the National Labor Relations Commission

b. Attorney Yoon Jong-chul et al., Counsel for the defendant

Seoul High Court Decision 91Gu27534 delivered on July 9, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

On the first ground for appeal

Article 19 (Penalty Provisions) of the collective agreement concluded between the intervenor company and the trade union organized as its employees provides that "this agreement shall apply to disciplinary action against union members" means that the collective agreement shall preferentially apply to the same disciplinary action or disciplinary procedure in cases where the provisions of the collective agreement and the rules of employment conflict with each other with respect to the same disciplinary action or disciplinary procedure, and that in any case, the rules of employment, etc. which provide for disciplinary action cannot be a separate ground provision for disciplinary action. Thus, it cannot be said that a union member cannot be dismissed for reasons other than dismissal provided for in the collective agreement under Article 19 of the collective agreement, on the ground that there are grounds for dismissal provided for in the disciplinary action regulations in addition to the grounds for dismissal provided for in the collective agreement under Article 19 of the collective agreement. The court below is just in holding that each act such as illegal industrial action, obstruction of business, and refusal to leave constitutes a ground for partial disciplinary action provided for in Article 6 of the disciplinary action regulations, and there is no error in the misapprehension of legal principles

On the second ground for appeal

The purport of the disciplinary provision applicable to part of the rules of employment is that a participant company has received criminal prosecution due to an illegal or unlawful act (Article 6 subparagraph 9), where a fine or heavier punishment was imposed due to an in-house labor-management problem (Article 6 subparagraph 18), where a participant company has been convicted of a violation of the Criminal Act or other Acts and subordinate statutes (Article 6 subparagraph 21), and where a labor union provides that a person who has been convicted of a violation of the provisions of Article 6 subparagraph 4 of the said collective agreement shall be punished for dismissal of an employee for at least six months due to a violation of the Criminal Act or other Acts and subordinate statutes (Article 27 subparagraph 4 of the collective agreement) as one of the grounds for dismissal of an employee (Article 27 subparagraph 4 of the collective agreement) is defined as one of the grounds for dismissal of a member who has been convicted of a criminal case other than that of a company. In the event of a member who has been convicted of a criminal punishment due to an act other than the performance of his/her duties, the plaintiff is no longer deemed to be held liable for dismissal of a company.

With respect to the third and fourth points

When an employer dismisses a worker as a practical reason, whether it constitutes an unfair labor practice by recognizing that the worker was dismissed for another reason for dismissal, or whether it constitutes an unfair labor practice should be determined comprehensively by comparing the grounds for dismissal, the contents of legitimate acts for labor union affairs conducted by the worker, the timing of disciplinary dismissal, the relationship with the employer and the labor union, and all other circumstances that can presume the existence of an unfair labor practice. Thus, even if the disciplinary procedure is violated under the provisions of a collective agreement, it can be a single material to determine the employer's intent to engage in unfair labor practice, regardless of whether the violation of the disciplinary procedure becomes a ground for dismissal, it does not constitute a critical factor which naturally affects the establishment of unfair labor practice (see, e.g., Supreme Court Decisions 90Nu2116, Dec. 26, 1990; 91Nu9572, Feb. 28, 1992; 91Nu9572, Feb. 28, 1992).

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing plaintiff. It is so decided as per Disposition by the assent of all participating Justices.