[1] Standard for determining unfair labor practice and whether disciplinary action recognized as justifiable grounds for disciplinary action constitutes unfair labor practice (negative)

[2] Whether the defect in the disciplinary procedure affects the gender of an unfair labor practice (negative)

[1] Where an employer is deemed to have been dismissed on the ground of the worker's trade union's legitimate act, unlike the grounds for dismissal, the dismissal shall be deemed unfair labor practice. Whether the act for the worker's trade union's work is the actual ground for dismissal shall be determined by examining the grounds for dismissal, the contents of justifiable act for the worker's trade union's work, the time of dismissal, the relationship between the employer and the non-members, the imbalance between sanctions against the union members and non-members in the same case, the consistency with the conventional practices, the employer's speech and behavior or attitude toward the union members, and other circumstances which can presume the existence of the employer's intent to engage in unfair labor practice. However, in a case of dismissal on the ground of justifiable grounds, even if the employer was unable to act as the worker's trade union, or even if the employer is presumed to have an employer's intent to act against the trade union, the dismissal shall not be deemed to constitute unfair labor practice merely because the ground for dismissal does not constitute a ground for dismissal.

[2] As long as an employer does not dismiss a worker due to a mistake in the legitimate labor union activity of a worker, the ground that the organization or disciplinary procedure of the disciplinary committee is unlawful shall not affect whether the dismissal constitutes an unfair labor practice.

[1] Article 27 (1) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996) (see Article 30 (1) of the current Labor Standards Act), Article 39 subparagraph 1 of the former Trade Union Act (repealed by Article 3 of the Addenda of Act No. 5244 of Dec. 31, 1996) (see Article 81 subparagraph 1 of the current Labor Union and Labor Relations Adjustment Act) / [2] Article 27 (1) of the former Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996) (see Article 30 (1) of the current Labor Standards Act), Article 39 subparagraph 1 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 196) (see Article 81 subparagraph 1 of the current Labor Union and Labor Relations Adjustment Act)

[1] Supreme Court Decision 94Nu3001 delivered on December 23, 1994 (Gong1995Sang, 691), Supreme Court Decision 95Nu6151 delivered on April 23, 1996 (Gong1996Sang, 1609), Supreme Court Decision 95Nu2487 delivered on May 31, 1996 (Gong1996Ha, 2039), Supreme Court Decision 96Nu587 delivered on July 30, 1996 (Gong196Ha, 2703), Supreme Court Decision 96Nu420 delivered on March 28, 1997 (Gong197Sang, 1251)

Plaintiff

The Chairperson of the National Labor Relations Commission

Pungnam Passenger Transport Corporation

Seoul High Court Decision 94Gu32193 delivered on April 4, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Unlike the grounds for dismissal, where an employer is deemed to have been dismissed on the ground of the worker’s legitimate labor union activity, the dismissal shall be deemed to be unfair labor practice. Whether the employer actually constitutes the ground for dismissal, the period of dismissal, the relationship between the employer and the labor union, the imbalance between sanctions against union members and non- union members in the same kind of case, the employer’s speech and behavior or attitude toward union members, and the existence of the employer’s intent to engage in unfair labor practice should be compared and determined (see Supreme Court Decision 94Nu301 delivered on December 23, 1994). However, in a case of dismissal on the ground of justifiable ground of dismissal, the employer cannot be deemed to be an unfair labor practice on the ground that the worker’s act was shaken or even if the employer is presumed to have an intention to engage in the labor union activity, and therefore, the dismissal cannot be deemed to be merely an unfair labor practice on the ground of the previous decision.

According to the reasoning of the judgment below, the court below determined that the plaintiff was a member of the labor union organized around June 1992 when the plaintiff was employed as a driver of the defendant joining the defendant joining the city bus company located at the time prior to May 1, 1992 (hereinafter referred to as the "the intervenor"), that the plaintiff did not observe the working hours and working days specified in the collective agreement on September 25, 1993, and that the number of working hours exceeds 5,000 won than other company because the intervenor did not comply with the decision of the labor union or legitimate authorization or approval, and that the plaintiff was not subject to disciplinary action against the plaintiff 10,000 won or more for the purpose of preventing embezzlement of transportation revenue of the driver affiliated with the driver, and that the plaintiff was not subject to disciplinary action against the plaintiff 10,000 won or more for the reason that the plaintiff 1 was not subject to disciplinary action against the plaintiff 1,000 won or more.

In light of the records and the above legal principles, the above fact-finding and judgment of the court below are acceptable, and there is no error in the misapprehension of facts against the rules of evidence or misunderstanding of legal principles as to unfair labor practices, as alleged in the

In addition, unless the intervenor was suspected of the plaintiff's legitimate labor union activity and dismissed the plaintiff, the argument that the composition or disciplinary procedure of the disciplinary committee in the dismissal of this case is unlawful cannot affect whether the dismissal of this case constitutes unfair labor practice. Therefore, the ground of appeal on this issue is without merit.

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

Justices Lee Don-hee (Presiding Justice)