[1] Where a trade union has the right to request remedy against unfair labor practices

[2] The case holding that if an employer committed an unfair labor practice against a worker who was seeking to join a trade union without acquiring a member's status, the trade union shall be deemed to have been infringed on its own rights and shall have the right to request remedy against unfair labor practice

[1] Article 82(1) of the Trade Union and Labor Relations Adjustment Act / [2] Article 82(1) of the Trade Union and Labor Relations Adjustment Act

Plaintiff’s social welfare foundation (Attorney Ku-won, Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

National Metal Trade Union (Law Firm Totalization, Attorneys Park Jong-pon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Nu17804 decided August 23, 2007

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

The grounds of appeal are examined.

According to Article 82(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Act”), a trade union has independent right to request remedy against unfair labor practices of its employer, apart from the right to request remedy from the right to request remedy from an individual employee (Supreme Court Decision 78Da2275 delivered on February 13, 1979), and the reason for recognizing such right to request remedy from a trade union is the protection and maintenance of the right to organize or its status and function, Article 5 of the Act guarantees the freedom of workers to organize and join the trade union, and Article 81 subparag. 1 of the Act prohibits not only the disadvantage of workers who have joined the trade union but also the disadvantage of workers who intend to join the trade union. In light of the above, the trade union has the right to request remedy against unfair labor practices in its own name. Thus, in such cases, the trade union has the right to request remedy from the trade union under its own name.

According to the facts established by the court below, on February 14, 2003, 230 workers belonging to the plaintiff foundation, including the non-party 2, including the non-party 230 members of the plaintiff foundation, were to join the defendant's assistant intervenor (hereinafter "the intervenor's association"), and the executive division of the intervenor's association was accepted. On February 28, 2003, the chairperson of the intervenor's association notified the plaintiff's Foundation of the establishment of the Seongbuk branch's Gyeonggi branch's Gyeonggi branch's meeting (hereinafter "Seng branch's meeting"). The Seongbuk branch's meeting was conducted collective bargaining with the plaintiff foundation from March 6, 2003 to November 6 of the same year, but it did not reach an agreement with the non-party 2, an intervenor's member of the plaintiff foundation's non-party 2, including the non-party 2, with the approval of the committee's member's member's participation in the housing industry since March 1, 2004 to September 14.

Under such factual basis, even if it is impossible for an employee belonging to the plaintiff foundation unrelated to metal-related industry to join the intervenor association because he/she is not qualified as an association member under the revised rules, it shall be deemed that the intervenor association may join the intervenor association through the procedure prescribed by the amended rules after the amendment was enforced. Thus, even if 230 persons, including the above non-party, etc., did not acquire the status of the intervenor association member because they did not obtain approval for joining the central committee of the intervenor association, it shall be deemed that they were willing to join the intervenor association at least. Accordingly, if the plaintiff foundation did not have obtained the intervenor association member status because of the non-party et al.'s non-party et al.'s non-party et al.'s non-party et al.'s non-party et al.'s non-party et al.'s non-party et al.'s non-party et al., which had tried to join the intervenor association on Nov. 204, 2004.

Nevertheless, on November 2004, at the time of the occurrence of unfair labor practices as alleged by the Intervenor Union, the lower court determined that the Plaintiff Foundation’s 230 employees, including the Nonparty, etc., were not infringed on the rights due to the Plaintiff Foundation’s unfair labor practices on the sole ground that the Intervenor did not acquire the status as a member of the Intervenor Union, and that the Intervenor union cannot be deemed to have the right to independently file an application for remedy against such unfair labor practices. In so doing, the lower court’s findings of fact and judgment were erroneous by misapprehending the rules of evidence or by misapprehending the legal doctrine on the eligibility for remedy against the trade union

Therefore, the ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)