[1] Validity of an application for annual or monthly leave that does not specify the type and period (negative)

[2] Criteria for determining unfair labor practice and whether disciplinary action recognized as legitimate grounds for disciplinary action constitutes unfair labor practice (negative)

[3] The case holding that if an employee who is the chairperson of a trade union was absent from work without the employer's approval, a disciplinary action of suspension from office on the ground that he was absent from work does not constitute an unfair labor practice

[1] Under Articles 47 and 48 of the Labor Standards Act and Article 30 of the Enforcement Decree of the same Act, the requirements for the annual and monthly paid leave are different, and the monthly paid leave can be used as a worker's free will only for one year, and the annual paid leave can be used as an employee's free will. If the granting of paid leave at the time when the employee's request is made, the employer may change the time when the employee's request is made. If the annual paid leave at the time when the employee's request is made, the employer may change the time. If the annual paid leave is not exercised for one year, the annual paid leave may not be used for any cause attributable to the employer. If the annual paid leave is not exercised for one year, in order to realize the right of paid leave as a matter of course even if the annual and monthly paid leave occurs when the employee satisfies the requirements for the establishment of the Labor Standards Act, it is necessary to specify when it comes to use any leave from time to time by exercising the right to designate the time when the employee exercises the right.

[2] Unlike the grounds of disciplinary action that the employer has laid down on the surface, whether or not the employer was subject to dismissal, etc. for reasons of the worker’s legitimate union activity should be determined by comparing and examining all the circumstances such as the grounds of disciplinary action and the contents of the worker’s union activity, the time of the disciplinary action, the procedure taken by the employer up to the disciplinary action, the imbalance of sanctions in the same kind, and the relationship with the employer and the labor union, etc. The mere defect in the disciplinary procedure or the circumstance that the disciplinary action is unfair is not sufficient to recognize the unfair labor practice immediately due to such circumstance, even if it becomes one of the materials to determine whether the worker was guilty of the unfair labor practice. In particular, in a case where it is deemed that there is a justifiable reason for the unfavorable disposition including the dismissal of the worker, etc., such a disposition does not constitute an unfair labor practice since the grounds of disciplinary action, etc. are not merely a previous one, even if the employer was unable to conduct the worker’s union activity, or even if the employer is presumed to be an anti-trade union member.

[3] In a case where a worker who works as the chairperson of the 'National Agricultural Cooperative Federation of Korea' as a member of the 'National Agricultural Cooperative Federation of Agricultural Cooperatives', who is not a party to legitimate negotiations, submitted annual and monthly leave workers who are not specified in the type and period for participating in the agricultural nature of the NAF with other union members for the purpose of conducting collective bargaining and meetings with the National Agricultural Cooperative Federation of Korea, but ordered the National Agricultural Cooperative Federation of Korea to attend without permission and work for 11 days on the ground that the worker did not attend without permission, the case held that the suspension disposition against the worker is justifiable in light of the circumstances and degree of the worker's misconduct, the intervenor's behavior in the course of the intervenor's misconduct, etc., and thus, it cannot be deemed unfair labor practices.

[1] Articles 47 and 48 of the Labor Standards Act / [2] Article 39 of the Trade Union Act / [3] Article 39 of the Trade Union Act

[1] Supreme Court Decision 90Do2852 delivered on January 23, 1991 (Gong1991, 907) Supreme Court Decision 96Da4930 delivered on March 25, 1997 (Gong1997Sang, 1172) / [2/3] Supreme Court Decision 95Nu6151 delivered on April 23, 1996 (196Sang, 1609) / [2] Supreme Court Decision 93Nu4595 delivered on December 10, 1993 (Gong1994Sang, 371 delivered on August 26, 1994), Supreme Court Decision 94Nu3940 delivered on August 26, 1994 (Gong1994, 2549) 96Nu9799 delivered on December 39, 197 (Gong94, 2599)

Kimpo Agricultural Cooperatives (Attorney Lee Young-gu, Counsel for defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant Intervenor (Law Firm Dasan, Attorneys Yoon Young-young et al., Counsel for the defendant-appellant)

Seoul High Court Decision 94Gu18340 delivered on January 25, 1996

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

We examine the grounds of appeal.

1. As to the legitimacy of the annual and monthly leave application of this case

A. Fact-finding and judgment of the court below

According to the reasoning of the judgment below, the court below held that the intervenor 2 was unable to use the plaintiff 1's non-permanent leave for the same reason as the plaintiff 1's non-permanent leave of absence on March 10, 1993, and the plaintiff 1's non-permanent leave of absence on May 6 of the same year after the plaintiff 2's non-permanent leave of absence on the ground that the plaintiff 1's non-permanent leave of absence could not be viewed as the plaintiff 2's non-permanent leave of absence without any objection. The plaintiff 1's non-permanent leave of absence on May 1, 1993. The plaintiff 2's non-permanent leave of absence on the ground that the plaintiff 1's non-permanent leave of absence on the same ground that the plaintiff 1's non-permanent leave of absence on the non-permanent leave of absence on the same ground as the plaintiff 2's non-permanent worker 6's non-permanent leave of absence on the first time after the plaintiff 1's non-permanent leave of absence.

B. Determination of party members

However, according to Articles 47 and 48 of the Labor Standards Act and Article 30 of the Enforcement Decree of the same Act, the requirements for the annual and monthly paid leave are different. Monthly paid leave can be used at the free will of an employee only for one year, and annual paid leave can be used at the time when the employee's request is made, and if the granting of paid leave at the time when the employee's request is made, it may be changed at the time when the employee's request is made, and if the annual paid leave is not exercised for one year, it may not be used for reasons attributable to the employer. If the annual paid leave is not exercised for one year, it shall be extinguished unless the employer is responsible. Even if the annual or monthly paid leave occurs when the requirements for the establishment of the Labor Standards Act are met, in order to specify the paid leave right, it shall be determined at what time and at any time from the time when the employee is commissioned to him, and even if the employee exercises the right to designate the time without specifying it, it cannot be deemed a legitimate designation of the time period.

If the facts acknowledged by the court below are the facts, the intervenor's application for the monthly and monthly leave as above cannot be deemed legitimate time designation because it does not specify when the intervenor will use the monthly and monthly leave from any time to any time. Therefore, the plaintiff's application for the monthly leave cannot be deemed legitimate time designation. Therefore, even if the intervenor's application for the monthly and monthly leave as illegal, and the plaintiff's failure to attend the plaintiff's union without the plaintiff's approval is an unauthorized absence from work without permission, the court below judged otherwise, on the ground that the intervenor's application for the monthly and monthly leave becomes legitimate and becomes effective. The court below erred in the misapprehension of legal principles as to the annual and monthly leave and the right to designate the time period under the Labor Standards Act.

2. As to the establishment of unfair labor practices

In a case where an employer is deemed to have been subject to disciplinary action, such as dismissal for reasons of the worker’s legitimate labor activity, unlike those of the disciplinary cause, the disciplinary action shall be deemed to be unfair labor activity (see Supreme Court Decisions 93Nu4595, Dec. 10, 1993; 94Nu3940, Aug. 26, 1994; 94Nu301, Dec. 23, 1994, etc.). However, unlike those of the disciplinary cause, the employer is merely 94Nu97, etc. 99, which the employer is deemed to have been subject to disciplinary action, such as dismissal for reasons of the worker’s legitimate labor union activity, etc., 96Nu169, etc., the employer should not be deemed to have imposed any disadvantage to the worker, including 94Nu97, etc., and it shall not be deemed to have been unreasonable or unreasonable.

As seen above, the intervenor's application for the annual and monthly leave of this case is illegal, and as acknowledged by the court below, the intervenor ordered the intervenor to attend the Plaintiff union without the plaintiff's approval from May 1, 1993 to May 21, 1993, since the intervenor did not attend the Plaintiff union without the plaintiff's approval, the intervenor's failure to attend the union constitutes absence without permission. Since the intervenor's act of misconduct violates the rules on the service of the Plaintiff union and constitutes a ground for disciplinary action under the personnel regulations, the intervenor's order of attendance to attend the National Federation of Nonghyup, which is not a legitimate negotiating party, shall carry out collective bargaining and demand with other union members at the National Agricultural Cooperative Federation for the purpose of carrying out the demand of the plaintiff's collective bargaining and interview with the plaintiff's union members, regardless of the plaintiff's legitimate negotiating party's instruction, the suspension disposition against the intervenor on the ground that the intervenor was absent without permission is justifiable in light of the circumstance and degree of the intervenor's behavior, the intervenor's behavior in the process of the intervenor's misconduct, and it cannot be deemed a representative of the plaintiff's labor union.

Nevertheless, the court below's decision that the Plaintiff's annual leave from May 11, 1993 to the 21st of the same month was just and that the instant suspension disposition constitutes unfair labor practices is erroneous in the misapprehension of legal principles as to legitimate labor union activities and the establishment of unfair labor practices. Therefore, the ground for appeal pointing this out has merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)