[1] The scope and limitation of the right to use a union office provided under a collective agreement

[2] The case holding that it is improper for outside persons who intend to visit the partnership office to obtain permission from the company

[1] A free loan agreement provided by a company to provide a union office on the side of the union pursuant to a collective agreement is an anonymous contract that a trade union is able to use part of the company office as a union office to the extent not impeding corporate management, and the employer bears the duty not to obstruct the use of the office of the union unless there are special circumstances such as hindering corporate management. A trade union acquires the right to use the union office for legitimate activities of the union. The right to use the union office includes the right to allow outside persons of the union office other than the union union members to enter the union office. In order to restrict the trade union's right to use the union office office, it is possible by concluding collective bargaining with the trade union as long as it is based on a collective agreement.

[2] The case holding that it does not constitute a ground for disciplinary action even if the president of a cooperative, in violation of the collective agreement, has allowed outside persons to enter the partnership's office without the company's permission, if there are outside persons who intend to visit the partnership's office.

[1] Article 39 (4) proviso of the Trade Union Act / [2] Article 27 (1) of the Labor Standards Act

[1] Supreme Court Decision 90Nu6927 delivered on May 28, 1991 (Gong1991, 1786)

Plaintiff (Law Firm Bupyeong General Law Office, Attorneys Seo Byung-ho et al., Counsel for the plaintiff-appellant)

Samsung Industries Co., Ltd. (Attorney Han Jong-hun et al., Counsel for the defendant-appellant)

1. It is confirmed that the Defendant’s dismissal against the Plaintiff on August 31, 1992 is null and void.

2. The defendant shall pay to the plaintiff money in proportion to KRW 828,602 per month from August 31, 1992 to the reinstatement.

3. The plaintiff's remaining claims are dismissed.

4. The costs of lawsuit shall be borne by the defendant.

5. Paragraph 2 can be provisionally executed.

The judgment of the court below and the defendant to pay KRW 868,895 per month to the plaintiff from August 31, 1992 to the reinstatement.

1. Determination on the claim for nullification of dismissal

(a) Basic facts;

The following facts are not disputed between the parties, or are acknowledged in full view of Gap evidence 1, 2, Eul evidence 1-1 through 10, Eul evidence 2 through 14, Eul evidence 14, Eul evidence 15-2, Eul evidence 16, Eul evidence 17-1 through 3, Eul evidence 18-1 through 18-3, Eul evidence 19-1 through 3, Eul evidence 20-1 through 20-3, evidence 19-1 through 20, witness 1, non-party 1, and witness 1, and testimony (excluding the part which is not trusted after the testimony of the above witness) in order to the whole purport of the oral argument, and some of the above witnesses' testimony contrary to this is not contrary to the belief.

(1) On August 10, 1983, the Plaintiff was employed by the Defendant Company as the head of the Incheon Branch of the Defendant Company’s Trade Union and was subject to disciplinary action against the Defendant Company on August 31, 1992.

(2) The grounds for the disciplinary action acknowledged by the Defendant Company against the Plaintiff are as follows: (a) even though the Plaintiff was given a warning to the outside person without consultation with the Defendant Company on July 191, 191 by entering the company without permission and disclosing the company’s facilities at will; (b) around July 22, 1992, the Defendant Company sent the outside person to enter the company without permission of the company; (c) took a bath to the manager of the Defendant Company, thereby causing mental harm to the Defendant Company; (c) upon gathering the employees of the Defendant Company before the Incheon Factory of the Defendant Company, the Defendant Company had the employees of the Defendant Company gather together with the persons related to the other company’s trade union; and (d) had the third person engage in singing with the third party by inducing the third party to intervene by taking out relief, thereby violating Article 39 subparag. 2, 5, and 6 of the Defendant Company’s collective agreement and Article 72 subparag. 2 and subparag. 5 of the Rules of Employment. 2.

(3) Article 39 of the collective agreement of the defendant company, which was in force at the time of the resolution of the disciplinary action of this case, is a disciplinary cause. Article 39 of the collective agreement of the defendant company, as a disciplinary cause, has been absent without a justifiable cause for not less than 3 days, has been disturbed, has inflicted damage on the company's economic and mental harm or has damaged its reputation due to gross negligence or gross negligence, has not been opened due to the first warning under subparagraph 5: Provided, That the warning is valid at the time of receipt of the reasons pointed out by the second higher grade or higher, and has submitted the reasons for the cancellation, and has obtained the approval of the head or higher of the department in charge of personnel and labor (the second grade or higher), has been in violation of the rules and regulations other than the collective agreement. Article 40 of the collective agreement provides for six disciplinary reasons such as reprimand, reduction of salary, demotion, removal from position, suspension, dismissal, etc. (the second grade or higher order for disciplinary action); Article 72 of the Rules of Employment provides for all kinds of disciplinary action (the removal from position); No.5).

B. Determination as to whether the defendant company constitutes grounds for dismissal of disciplinary action

Article 39 of the collective agreement and Article 72 of the Rules of Employment of the defendant company lists six or five grounds for disciplinary action. On the other hand, Article 41 of the collective agreement and Article 75 of the Rules of Employment stipulate five grounds for dismissal separately from the grounds for disciplinary action. Thus, it should be interpreted to limit the grounds for dismissal to five grounds for dismissal, which are the most severe measure, to five grounds for dismissal. Thus, the dismissal in this case is null and void for reasons not falling under the above five grounds for dismissal. Thus, Article 41 of the collective agreement cannot be interpreted as a person who was subject to prosecution for dismissal in addition to those for disciplinary action under Article 39, Article 41 of the Rules of Employment as stated above (Article 47 of the Rules of Employment) and Article 75 of the Rules of Employment as grounds for disciplinary action (Article 47 of the Rules of Employment) and Article 57 of the Rules of Employment as grounds for disciplinary action, and Article 57 of the Rules of Employment can only be interpreted as a person subject to disciplinary action or dismissal without legitimate reasons for dismissal (Article 57).

C. Determination on the legitimacy of the dismissal of this case

(1) Facts of recognition

The following facts may be acknowledged in full view of the evidence Nos. 1-1 through 10, Eul evidence Nos. 2 through 8, Eul evidence Nos. 9, 10, 14, Eul evidence No. 15-1, 2, Eul evidence No. 16, Eul evidence No. 17-1 through 3, Eul evidence No. 18-1, 2, Eul evidence No. 19-1 through 3, Eul evidence No. 20-1 through 20-3, witness Nos. 1 through 20, witness No. 1, non-party No. 1, and witness testimony in the red order (excluding the part which is not trusted after the testimony of this kind of objection), and the whole purport of the pleading cannot be acknowledged, contrary to this, unless it is trusted that part of Eul evidence No. 1-5, and testimony of this kind of witness is contrary to this.

(A) On July 28, 1991, the Defendant Company and the Defendant Company’s trade union jointly organized a joint countermeasure committee for gas leakage accident, and discussed the damage compensation measures, etc. for the victimized workers, on the end of the same month, visited the Defendant Company to investigate the circumstances of the above gas leakage accident and the situation of damage. The Plaintiff sent the members of the above Military Air Pollution Prevention Association to check the scene of the accident by informing the Defendant Company of the members of the above Military Air Pollution Prevention Association as the site of the gas poisoning accident. The Defendant Company held a personnel committee on January 29, 192, and decided to reprimand the Plaintiff without permission of the Defendant Company, on the ground that the Plaintiff reserved the collective bargaining without permission of the Defendant Company, outside persons within the company (the members of the Military Air Pollution Prevention Association). After that, the Chairperson of the above Kim Jong-si Labor Personnel Committee notified the Plaintiff of the measure to renew the collective bargaining agreement at the time of the notification of the renewal of the collective bargaining agreement.

(B) However, prior to August 191, 191, outside persons visiting the defendant company have entered the office of the labor union by making use at the guard room of the defendant company. On August 3, 1991, the defendant company entered the office of the labor union. In order to prevent outside persons from having access to the defendant company without permission, the defendant company notified the defendant company's labor union's trade union's access to the company, and if outside persons related to the labor union have access to the company's facilities other than the partnership's office, the defendant company's security guards requested cooperation to obtain company's approval after prior consultation with the company's side. After that time, the defendant company's security guards did not enter the outside persons who want to enter the defendant company for the purpose of visiting the defendant company's labor union and failed to wear the name, time, reason for access, etc., and notified the defendant company's entry to the outside person's labor union for the purpose of using the defendant company's collective bargaining facilities for the purpose of preventing the defendant company from having access without permission.

(C) Meanwhile, in order to carry out joint projects such as the education of union executives and ordinary members in the region for the purpose of wage increase, employment security, etc., and the preparation of collective bargaining and strike for wage increase, the president of the 11th company trade union around the Defendant Company including the Plaintiff constitutes a "trade union revitalization promotion committee" (hereinafter referred to as the "trade union activation committee") and held meetings by visiting each member trade union once a week, but on July 22, 1992, it was anticipated that the labor union office of the Defendant Company would have a trade union.

(D) On July 22, 1992, at around 14:00, Nonparty 1, the director of the product management division of the defendant company Incheon Factory: The director of the defendant company's product management division, at around 14:00, requested three executive directors, including the chairperson of the non-party 2 who entered the defendant company into the defendant company without going through the outside visit procedure, to promptly return the outside persons in the defendant company's labor union office. However, the plaintiff's non-party 1 and the plaintiff were in dispute with the above non-party 1, but the non-party 1 and the plaintiff were in dispute. At around 15:00, the non-party 1 and the non-party 2, including the chairperson of the defendant company's company's product management labor union, requested that the non-party 1's director and the manager of the defendant company enter the defendant company's company's company's office and the non-party 1's company's company's office without the above outside director's order to control of the outside person's labor union's office.

(E) At around 16:25, to complete safety education for employees of the Defendant Company, the Plaintiff, who was coming to the guard room to leave the Defendant Company, was unable to enter the company. The Plaintiff, who was going to go to the guard room to the end of 16:25, introduced the employees to gather on the access roads outside the Defendant Company’s sentiments, and then introduced the employees to one of the active members, and the chairman of the Korea Labor Union, a member of the Trade Union in the Labor Relations Commission in the Labor Relations Commission in the Labor Relations Commission in the Labor Relations Commission in 92-year wage negotiations. The employees of the Defendant Company, such as the Plaintiff, etc., sent relief, such as “wages in wage,” along with the employees of the said Trade Union in the Labor Relations Commission, and was dissolved after having labor.

(F) The renewal of the collective bargaining agreement for the 92 year between the defendant company and the defendant company's trade union began on February 15, 1992 as the first collective bargaining, and concluded on May 22, 199. The collective bargaining for wage increase began on May 7 of the same year and was terminated on August 10 of the same year. The defendant company's trade union reported the occurrence of a labor dispute on July 9 of the same year, following the resolution of the temporary board of representatives on July 9 of the same year (the period of cooling, because the defendant company is not a public-service company, was from July 11 of the same year to July 20 of the same year) and the labor dispute occurred on August 24 of the same year, based on the result of the union members' vote for the industrial action on August 5 to 10 of the same year.

(2) As to whether the Plaintiff’s act constitutes grounds for disciplinary action

(A) Even though the Plaintiff was subject to a disciplinary action as of January 29, 192, the Defendant Company allowed an outside person to enter the Defendant Company without permission (Article 39 subparag. 5 of the Organization Convention). Although the Defendant Company restricted the outside person’s access, it did not enter the other company’s trade union-related persons within the Defendant Company without permission, the Defendant Company violated the Defendant Company’s policies (Article 39 subparag. 6 of the Organization Convention, Articles 3 subparag. 1 and 4 subparag. 7 of the Rules of Employment) by allowing the outside person to enter the company despite the restraint of the outside person’s access to the company (Article 39 subparag. 6 of the Organization Convention, Article 3 subparag. 1 and 4 subparag. 7 of the Rules of Employment). The Defendant Company asserted that Article 39 subparag. 2 and subparag. 6 of the Organization Convention, supra, was justifiable, that the Defendant Company violated Article 9 subparag. 36 of the Trade Union Act’s dismissal and labor dispute mediation provisions of Article 39 subparag. 2 of the Labor Relations Act.

(B) Therefore, as to the claim that the above act of the plaintiff constitutes a case where the plaintiff's act constitutes a case where the plaintiff's act was not opened even after being given one warning of "the grounds for disciplinary action under Article 39 (5) of the collective agreement." The defendant company decided on January 29, 192 that the plaintiff's act was a ground for non-entry under Article 39 (1) of the above collective agreement, and the defendant company's disciplinary measure was decided on January 29, 1992, and the defendant company's executive director Kim Jong-hee decided to make a reservation and warning of the above reprimand. However, in order for the plaintiff's act to constitute a ground for disciplinary action under Article 35 (5) of the collective agreement, the above reprimand disposition or warning disposition is notified to the plaintiff first, and it is required that the plaintiff submitted a statement to the next higher-class person, which is a valid requisite for the warning under the proviso to Article 35 (5) of the above collective agreement, and the plaintiff did not dispute the facts that the plaintiff did not receive any warning as provided by the above provision.

(C) Next, we examine the argument that the Plaintiff, despite the Defendant Company’s external access control policy, did not allow other trade union-related persons to enter the Defendant Company without permission, or violated the Defendant Company’s policies by attempting to do so.

Rights to manage the Defendant Company and trade union activities

An employer has the authority to issue an order for work placement, remaining business order, preservation of company facilities, management order, etc. to an individual employee based on an individual employee’s labor contract and collective agreement with each other, or to issue a business order based on a right to manage facilities within the company, and each employee has the duty to obey such order. However, the employer’s right to order or right to manage facilities is not unlimited, but is not in conflict with the employer’s union activities (use of union office) as in this case, and in case of conflict, it shall be reasonably restricted and exercised to the extent that does not undermine the essential meaning of the employer’s property right in the sense that the employer’s right to order or right to manage facilities is guaranteed. In particular, if most of our countries are taking a corporate-level trade union structure, the head of the trade union activity inevitably takes advantage of the company’s facilities based on the material foundation of the trade union activities, and therefore, the employer’s right to manage facilities should not always take precedence over the employer’s right to use the company’s labor union activities, and it is also necessary to respect the employer’s right to provide it.

Scope of and restrictions on the right to use a union office;

As provided in Article 14 of the collective agreement of the defendant company, a free loan agreement provided by the defendant company for the provision of the partnership office to the partnership office is an unlimited contract that can be used as a partnership office to the extent that the trade union does not impede the management of the company's business. Accordingly, the defendant company bears the duty not to obstruct the use of the office of the trade union unless there are special circumstances such as causing interference with the management of the company. The defendant company's trade union has the right to use the partnership office for legitimate partnership activities. The right to use the partnership office of the trade union includes the right to allow outside persons other than the union members of the defendant company's union to enter the partnership office.

In order for the Defendant Company to limit the use of the right to use the labor union's office of the Defendant Company to the extent of access by outside persons during the collective bargaining period, the use of the labor union's office of the company would not be subject to general order of business unless there are special circumstances, such as where the use of the labor union's office of the company interferes with business management, etc. (if the management right or property right of the Defendant Company is infringed due to the use of the labor union's office of the company, it would be deemed that the tort would be caused to the Defendant Company's trade union), and it would be possible to conclude a collective agreement (the debt portion of the collective agreement) that provides for matters concerning the restriction on the use of the union's office of the Defendant Company's labor union's office of collective bargaining with the Defendant Company's labor union of the company in advance (see

Whether the defendant company's access control by the office of association is justified

However, even though there is no limitation provision on the use of a trade union's office under the collective agreement of the defendant company, since the defendant company is at risk of hindering the management and preservation of other company's office and facilities other than the office of the union, or hindering the use of the office of the defendant company, it is necessary to prevent such risk, and even if the office of the union has access to the office of the union as long as the office of the union is an office of the company, it is necessary to grasp the personal information or purpose of access. In this sense, the defendant company's request for business to the defendant company's trade union on August 3, 191 (if the outside person has access to the office of the union, it shall be notified in advance, and if the outside person has access to the office of the union, it shall be subject to prior consultation and approval) shall be viewed as legitimate measures.

However, according to the above facts of recognition (B), unlike the above facts of business request, the defendant company received prior notice from the defendant company's trade union to outside persons having access to the union's office, or made them enter their personal information, purpose of access, etc. on their list of visitors, and did not investigate the reason for access by outside persons, and did not allow them to access the outside, and thus actually prevented them from entering the union's office. Thus, the defendant company's unilateral violation of Article 14 of the collective agreement as seen earlier of the defendant company's unilateral infringement of the right to use the union's office.

In addition, even if it was inferred that the outside person visiting the office of the defendant company's labor union during the collective bargaining period in contact with the defendant company's labor union and participated in a dispute between labor and management, the defendant company's product management division of the defendant company in this case requested that the outside person who visited the office of the union's labor union at first time be informed of three outside person and the company should be produced out of the company. The defendant company did not allow the entry after the arrival of seven members of the other labor union, and it was revealed that the outside person was aware of the fact that the plaintiff et al. was an active member (see the testimony of the witness 1) and the company's labor union's office for any purpose, unless it is objectively unclear whether the above active members want to hold a meeting at the defendant company's labor union's labor union's office for any purpose, or unless there is a possibility that the dispute between the above and the above active members might deteriorate, it cannot be said that the defendant company's action against the company's labor union's office's entry was inevitable.

Sub-committee

Therefore, if there is an outside person who intends to visit a cooperative office to the Plaintiff, it is unfair to allow the Defendant company to obtain permission. Even if the Plaintiff violated the provisions of the collective agreement of the Defendant company and caused the outside person to enter the company without permission of the Defendant company, such act does not constitute a ground for disciplinary action under the collective agreement and rules of employment. Thus, the above argument by the Defendant company is without merit.

(D) In addition, the Plaintiff’s verbal abuse and assault committed against the Defendant Company’s manager, which prevented the Plaintiff from entering the outside person, constitutes a disciplinary cause under Article 39 subparag. 2 and subparag. 6 of the collective agreement, by causing mental harm to the Defendant Company or impairing the reputation of the Defendant Company or its manager. However, in the course of the Plaintiff’s unilaterally prohibiting the Plaintiff from entering the outside person’s office, it constitutes a disciplinary cause under Article 39 subparag. 6 (Article 39 subparag. 2) of the collective agreement. However, the Plaintiff’s verbal abuse and assault against the outside person constitutes a disciplinary cause under Article 39 subparag. 2 of the collective agreement, which restricts the Defendant Company’s mental damage and defamation. Meanwhile, the Plaintiff’s verbal abuse and assault committed against the Defendant Company manager constitutes a disciplinary cause under Article 39 subparag. 6 (Article 39 subparag. 2) of the collective agreement.

(E) Finally, as recognized earlier, in the instant case, where the Plaintiff is proceeding with collective bargaining for wage increase, it is reasonable to deem that the Plaintiff’s act was an act of inducing a third party intervention prohibited by the Labor Dispute Adjustment Act if the Plaintiff had its union members gather in front of the Defendant Company’s sentiments, and had the said union members take over in the wage increase strike, and if it had the union active members take part in the labor price and take out relief with the union active members, it constitutes a ground for disciplinary action under Article 39 subparag. 6 of the collective agreement (Article 4 subparag. 7 of the Rules of Employment).

(3) As to the abuse of disciplinary power

However, as seen above, the Plaintiff made verbal abuse and assault to the managers of the Defendant Company, made the members gather before the Defendant Company’s sentiments, and caused the members of the Trade Union to mincate the strike in terms of wages of the Defendant Company, and sing and providing singing and relief was not planned from the beginning by the Plaintiff or the members of the Trade Union, but in the absence of permission to enter the trade union’s office, the Defendant Company and the employees of the Trade Union were in conflict with the managers of the Defendant Company. In addition, it was generated in the course of the Defendant Company’s completion of safety education by the members of the Trade Union, explaining the current situation to the union members, and managing the situation, and the Plaintiff was at the location of the head of the branch office in which the Plaintiff should guide the trade union’s union’s activities. In light of the attitude and degree of damage by the Defendant Company and the managers of the Defendant Company as seen in this case, it is deemed that there was no justifiable reason to dismiss the Plaintiff as a disciplinary action on the ground that the Plaintiff did not have any responsibility for the labor contract relations with the Plaintiff.

In the end, the instant disciplinary dismissal disposition against the Plaintiff is a disciplinary action for the grounds that are not the grounds for the disciplinary action, or a disciplinary action for abuse of the right to discipline, and thus is null and void due to the lack of justifiable grounds, and as long as the Defendant Company contests the validity of the above dismissal disposition,

2. Determination on the part demanding wage payment

A. As seen earlier, the disciplinary action against the plaintiff of the defendant company is null and void, and the plaintiff continued to have been in the position of the worker of the defendant company during the period after the dismissal, but the plaintiff's failure to provide labor is attributable to the reasons attributable to the defendant company, which is the employer, and therefore, the plaintiff may claim for full payment of the wages that the defendant company may have continued to work from the above dismissal date until the plaintiff is reinstated. The fact that the defendant company dismissed the plaintiff as of August 31, 1992 and did not work until the closing date of the argument in this case after the dismissal of the plaintiff, and there is no dispute between the parties that the defendant company refused to work until the closing date of the argument in this case. The wages that the plaintiff could have worked during the above dismissal date according to the statement in the evidence No. 3, can be recognized as constituting a monthly wage of 828,602 as shown in the attached

B. In addition to the above amount of KRW 828,602, the Plaintiff claimed that the monthly average of KRW 40,293 under the Labor Standards Act should be paid in addition to the above amount of KRW 828,602, the Plaintiff is entitled to receive the monthly allowance of KRW 40,293. The monthly allowance of the above assertion can be paid only when the Plaintiff opened the monthly working days and does not have a monthly leave on the first day of the month. Since there is no proof as to the fact that the Plaintiff could have opened the monthly working days after the dismissal of the instant case and did not have a monthly leave on the first day of the month, the above assertion is without merit.

3. Conclusion

Therefore, the defendant's dismissal disposition against the plaintiff on August 31, 1992 is null and void, and the defendant is obligated to pay to the plaintiff the amount at the rate of KRW 828,602 per month from August 31, 1992 to the reinstatement of the plaintiff. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remainder is dismissed as there is no ground (attached Form omitted).

Judges Song Heung-sop (Presiding Judge)