[1] Criteria to determine whether the employer's refusal or neglect of collective bargaining has justifiable grounds

[2] Whether it is possible for multiple teachers' trade unions to simplify bargaining windows in the form of delegation, etc. to form a single negotiating body before collective bargaining (affirmative)

[1] Article 81 subparag. 3 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 930, Jan. 1, 2010) provides that an employer may not refuse or neglect, without any justifiable reason, the conclusion of a collective agreement with the representative of a trade union or a person delegated by a trade union, and other collective bargaining with the representative of a trade union or a person delegated by a trade union. Whether there is a justifiable reason for refusal or neglect of collective bargaining shall be determined based on whether it is difficult for an employer to expect the performance of the collective bargaining obligation under social norms by taking into account the bargaining right holder of the trade union, the bargaining time and place

[2] Article 6(3) of the former Act on the Establishment, Operation, etc. of Trade Unions (amended by Act No. 10132, Mar. 17, 2010) requires the simplification of autonomous bargaining windows from the stage of the request for bargaining in order to conduct collective bargaining in a case where multiple trade unions exist in a group of teachers who share organization targets. There is no restriction on the simplification of bargaining windows. Therefore, it is possible to simplify bargaining windows in the form of delegation, etc. to form a single negotiating body prior to collective bargaining by multiple teachers trade unions.

[1] Article 81 subparagraph 3 of the former Trade Union and Labor Relations Adjustment Act (Amended by Act No. 930, Jan. 1, 2010) / [2] Article 6 (3) of the former Act on the Establishment, Operation, etc. of Trade Unions (Amended by Act No. 10132, Mar. 17, 2010)

[1] Supreme Court Decision 2005Do8606 decided Feb. 24, 2006 (Gong2006Sang, 560)

Plaintiff 1, et al. (Law Firm Roice, Attorneys Kang-gu et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Teachers' Union (Attorney Lee Im-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Nu17732 decided April 26, 2007

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

The grounds of appeal are examined.

1. Article 81 subparag. 3 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 930, Jan. 1, 2010; hereinafter “Labor Union Act”) provides that an employer may not refuse or neglect, without good cause, the conclusion of a collective agreement with the representative of a trade union or a person delegated by a trade union, or any other collective bargaining. Whether justifiable grounds exist for refusal or neglect of collective bargaining shall be determined based on whether it is difficult for an employer to expect the performance of collective bargaining obligations under generally accepted social norms by taking into account the bargaining authority on the side of the trade union, the bargaining time required by the trade union, the place of the bargaining, the bargaining attitude, etc. (see Supreme Court Decision 2005Do8606, Feb. 24, 2006, etc.).

2. After finding facts as stated in its reasoning, the court below acknowledged that it is clear that it is not possible to delegate the bargaining authority to other teachers' unions than the union in question because it is prohibited from delegation of the bargaining authority to a third party, unlike the general trade union. The defendant joining the defendant (hereinafter referred to as "participating") who is not less than two trade unions sharing the organization target and the Korean Teachers' Union (hereinafter referred to as "Korean Teachers' Union") shall demand collective bargaining under the joint signature of the representatives of each trade union pursuant to Article 6 (3) of the Act on the Establishment, Operation, etc. of the Teachers' Unions (hereinafter referred to as "Korean Teachers' Union Union Act"), although the representative of each trade union shall demand collective bargaining under the joint signature of each trade union pursuant to Article 6 (3) of the Act on the Establishment, Operation, etc. of the Teachers' Union (hereinafter referred to as "Korean Teachers' Union Union Act"), the head of the Daejeon Branch of the intervenor's Union delegated the authority to the chairperson of the Korea Teachers' Union and delegated it to a third party through the Korea Teachers' Union.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Article 6(1) of the Trade Union and Labor Relations Adjustment Act explicitly specifies the authority to conduct collective bargaining and collective bargaining by the representative of a trade union. Article 6(2) provides that “In the case of paragraph (1), the negotiating members of a trade union shall be comprised of the representative of the trade union and its members.” Article 29(2) and (3) of the Trade Union and Labor Relations Adjustment Act, which provides for delegation of bargaining authority under Article 14(2), excludes the application thereof. In the case of a trade union of a teacher, it excludes a third party’s involvement in collective bargaining and collective bargaining in contrast to a general trade union subject to the Trade Union and Labor Relations Adjustment Act, taking into account special characteristics of the status of the teacher, expertise in the duties of the teacher, public nature, etc. In the meantime, Article 6(3) of the Trade Union and Labor Relations Adjustment Act provides that “if two or more trade unions are established that share bargaining windows, a trade union shall make a single request for collective bargaining in the form of a single bargaining counter.

B. According to the facts acknowledged in the lower judgment and the first instance judgment partially accepted by the lower court, the following circumstances are revealed.

① Under the circumstances where the Intervenor’s Intervenor (hereinafter referred to as the “ Intervenor”) was able to make a request for bargaining to the employer after the simplification of bargaining windows into multiple teachers’ trade unions that share the organization subject to organization, the Intervenor’s Intervenor’s primary demand for collective bargaining against the Plaintiffs was delegated not only the Intervenor’s right to collective bargaining but also the right to conclude collective agreements to the head of the Daejeon Branch of the Daejeon Branch of the World Trade Organization delegated by the chairman, a representative of the Intervenor. The Intervenor requested collective bargaining several times after the Intervenor’s primary demand for collective bargaining was made on April 29, 2002 by specifying the purpose of delegation along with each of the said delegations, although the Intervenor was in sole name, and clearly stating the intent of delegation and the negotiating right holder’s request for collective bargaining.

② The Plaintiffs, upon receipt of such demand for collective bargaining, did not comply with the collective bargaining due to the circumstances such as having undergone a negotiation on the composition of the bargaining group and the appointment of a bargaining group head, etc. In that process, the Plaintiffs did not point out the illegality of the procedures for the simplification of the bargaining counter on the side of the teachers’ trade union or for the request for bargaining.

In full view of the above circumstances, it is reasonable to see that the simplification of bargaining windows has been made in the form of delegation of the negotiating authority and the power to conclude collective agreements to the intervenors of Han school-affiliated immediately before the demand for collective bargaining.

C. In light of the legal principles as seen earlier, even if the Intervenor’s demand for collective bargaining was made under the sole name and thereby violated Article 3(1) of the Enforcement Decree of the Teachers’ Labor Union Act, a trade union’s demand for bargaining was made under the condition of the simplification of bargaining windows, and if the Intervenor’s demand for bargaining was made under the circumstances specifying the intent of delegation from the Korea Teachers Union at the time of the demand for bargaining, it cannot be said that it is difficult for the employer to expect the performance of collective bargaining obligations under social norms, unlike the case where the Intervenor requested bargaining without the simplification of bargaining windows.

D. Therefore, the court below should have deliberated on whether the simplification of bargaining windows required under the Teachers' Unions Act was made lawfully by delegation of the bargaining authority and the authority to conclude agreements on the comparison comparison of a number of teachers' unions, and if the intervenor's request for bargaining was made at the time of the simplification of bargaining windows, it would be difficult to expect the plaintiffs to fulfill the collective bargaining obligation on the sole basis of the fact that the intervenor's request for bargaining was made at the time of the simplification of bargaining windows. However, without doing so, the court below determined that the intervenor's demand for collective bargaining was unlawful on the ground that the plaintiff's demand for collective bargaining was made in the form of delegation of bargaining authority between multiple teachers' unions, and thus, the plaintiffs' failure to comply therewith does not constitute unfair labor practices under the Teachers' Unions Act, by misapprehending the legal principles on the simplification of bargaining windows and unfair labor practices under the

4. Therefore, 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 Lee Hong-hoon (Presiding Justice)