[1] Method of determining whether an employer’s act of excluding a pre-employed person from promotion constitutes an unfair labor practice committed by intent to engage in unfair labor practice

[2] In a case where Gap corporation engaged in car sales business, etc. was exempted from duty to provide labor and did not include Eul et al., who applied only the standard of elevation based on sales performance in the same manner as other employees without separately establishing the level of elevation for the union employees, the case affirming the judgment below holding that this constitutes an unfair labor practice merely because it was an employee of the union, and thus, constitutes an unfair labor practice

[3] The person who bears the burden of proving that the employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act (=worker or trade union)

[4] Whether the act of unfair labor practice can be immediately deemed to have occurred in comparison with a union member and a union member under the so-called "age-based promotion system" in which promotion is conducted by reflection of job ability, job performance, eligibility for higher position, etc. (negative)

[5] In a case where Gap corporation operating a car sales business, etc. did not include union members Byung et al. in the promotion target while engaging in 2006, the case affirming the judgment below holding that Gap corporation's act of excluding union members Byung et al. from the promotion target on the ground that since there is no evidence that Gap's work performance according to the promotion criteria for its employees in 2006 was included in the promotion target, it cannot be readily concluded that Gap corporation excluded union members Byung et al. from the promotion target with intent to put disadvantage to union members

[1] Article 81(1)1 of the Trade Union and Labor Relations Adjustment Act/ [2] Article 81(1)1 of the Trade Union and Labor Relations Adjustment Act/ [3] Article 81(1)1 of the Trade Union and Labor Relations Adjustment Act/ [4] Article 81(1)1 of the Trade Union and Labor Relations Adjustment Act/ [5] Article 81(1)1 of the Trade Union and Labor Relations Adjustment Act

[3] Supreme Court Decision 2005Du4120 decided Nov. 15, 2007 (Gong2007Ha, 1932) / [4] Supreme Court Decision 96Nu10188 decided Feb. 10, 1998 (Gong198Sang, 774)

Suwon Automobile Sales Co., Ltd. (Law Firm Shin & Kim, Attorney Hun-tae, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant Intervenor (Appointed Party) 1 and one other

Seoul High Court Decision 2008Nu28204 decided May 14, 2009

All appeals are dismissed. The costs of appeal by the Plaintiff are assessed against the Plaintiff, and the costs of appeal by the Defendant’s Intervenor (Appointed Party) are assessed against the appointed party 3, 4, 5, 6, and 7.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

If an employer had excluded a person from promotion of a person under full-time union as an intention to evade or interfere with trade union activities, such act constitutes unfair labor practices because it gives disadvantages to workers engaging in trade union activities. However, whether an employer’s exclusion from promotion of a person under full-time union constitutes unfair labor practices committed by intent to engage in such unfair labor practices should be determined by taking into account various objective circumstances, such as the relationship between an employer and a trade union, whether there exists substantial discrimination between a person under full-time union and a person under full-time union, and whether there exists a person under full-time union and a person under full-time union, and whether there exists a person

The lower court determined that: (a) the Plaintiff’s application of the criteria for promotion based on the same sales performance as other employees without separately establishing the criteria for promotion of the former employees, on the ground that the Plaintiff’s application of the criteria for promotion of the employees in 2006 to only the same level of promotion based on the same sales performance as those of the former employees, on the ground that the Plaintiff’s application of the criteria for promotion of the employees in 2006 was practically prevented solely on the ground that the Plaintiff’s operation as the former employees was conducted; and (b) the Plaintiff’s exclusion of the above Intervenors, etc., based on such criteria for promotion, constituted unfair labor practices.

The lower court’s determination is acceptable in light of the aforementioned legal principles and records. In so doing, it did not err by misapprehending the legal doctrine regarding unfair labor practice or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. As to the Defendant’s ground of appeal

Inasmuch as an employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act, the employee or trade union asserting it must prove that the employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act, if it is unclear whether or not there exists an employer’s intent to engage in the unfair labor practice, and thus it is impossible to determine its existence, the risk or disadvantage thereby should be borne by the employee or trade union asserting it (see Supreme Court Decision 2005Du4120, Nov. 15, 2007, etc.). Meanwhile, in order for the pertinent member to be treated disadvantageously in promotion compared to the non-members on the ground that he or she joined the trade union under the so-called system of promotion of capacity by reflecting work ability, work performance, eligibility for higher position, etc., even if the gap in promotion was caused by comparing the labor union members with the non-members comparable to the pertinent case, it cannot be readily concluded that the unfair labor practice under Article 81 subparag. 198, etc. 198 of the Trade Union and Labor Relations Adjustment Act was caused.

The court below held that since there is no evidence to deem that the Plaintiff’s work performance according to the Plaintiff’s standard for the promotion of employees in 2006 was included in the selection target in the year 2006, the Plaintiff’s non-members who were equal to, or less than, the 3,4,5,6,6,7 were not included in the selection target. Even if the aforementioned selection entity, etc. refused the Plaintiff’s business division and transfer, and the Plaintiff’s core members who conflict with the Plaintiff, it cannot be concluded that the Plaintiff excluded the designated entity from the selection subject to the promotion target with intent to give disadvantage to the union members. Such recognition and determination by the court below are acceptable in light of the aforementioned legal principles and records, and it did not err by misapprehending the legal principles on unfair labor practice or by exceeding the bounds of the principle of free evaluation of evidence.

3. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)