[1] The meaning of “a person who acts on behalf of an employer” and “a person who acts on behalf of an employer in respect of matters concerning workers engaged in such business,” whose participation in a trade union is prohibited pursuant to Article 2 subparag. 2 and subparag. 4 proviso (a) of the Trade Union and Labor Relations Adjustment Act, and the method of determining whether an employee is

[2] In a case where Gap school foundation which establishes and operates a private university requested the withdrawal of the branch office of the Korean university trade union from 48 employees who are not entitled to participate in the trade union in office, and the Korean university trade union applied for remedy against unfair labor practices, but the National Labor Relations Commission rejected such request, the case holding that the judgment below which held that the act of demanding withdrawal from the trade union constitutes "a person who acts on behalf of employers" who is not qualified as union members, and that the act of demanding withdrawal from the trade union does not constitute unfair labor practices is erroneous in the misapprehension of legal principles

[1] According to Article 2 subparag. 2 and proviso (a) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), an employer who is an employer under the Trade Union Act, a person in charge of business management, or a person who acts on behalf of an employer with respect to matters relating to his/her employees, and a person who acts on behalf of an employer at all times is prohibited from participating in the trade union. The purpose of the Act is to ensure the autonomy of the trade union. Here, “a person who acts on behalf of an employer with respect to the matters relating to his/her employees” refers to a person who has certain authority and responsibilities with respect to the determination of working conditions, such as workers’ personnel, wages, welfare, and labor management, or business orders or supervises, and “a person who acts on behalf of an employer” refers to a person who acts on behalf of an employer, such as a person who directly participates in a labor relationship decision, or who is authorized to deal with confidential matters pertaining to an employer’s labor relations plan and policies, and thus, a person who acts on behalf of an employer does not necessarily constitute a conflict with one’s duty and responsibilities.

[2] The case holding that, in a case where Gap's office which establishes and operates a private university requested withdrawal from a branch of the National University Trade Union to 48 employees under its jurisdiction who were not entitled to participate in the trade union, and where the National University Trade Union requested withdrawal from the branch, and applied for relief from unfair labor practices, but the National Labor Relations Commission dismissed such request, the head of the division or higher at the level of office does not constitute "person who acts on behalf of the employer" as an employee with full power concerning the division of duties, management of work experience, etc. of the employees under his/her jurisdiction, but the employee above the head of the division or higher level of office cannot be deemed as "person who acts on behalf of the employer" on the ground that he/she is not "person who acts on behalf of the employer" or "person who acts on behalf of the employer" on the ground that he/she actually takes charge of duties, duties and authority, etc., and thus, he/she cannot be deemed as "person who acts on behalf of the employer" on the ground that he/she did not constitute an unfair labor practice.

[1] Article 2 subparag. 2, subparag. 4 (a) of the Trade Union and Labor Relations Adjustment Act / [2] Article 2 subparag. 2, subparag. 4 (a), and Article 81 subparag. 4 of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 88Nu6924 delivered on November 14, 1989 (Gong1990, 51)

National University Trade Union (Attorney Lee Du-pon et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

○○ School Foundation (LLC, Kim & Lee LLC, Attorneys O taxon et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Nu32794 decided July 23, 2008

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

We examine the grounds of appeal.

According to the proviso of Article 2 subparag. 2 and subparag. 4 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”), a business owner who falls under an employer under the Trade Union Act, a person in charge of business management, or a person who acts on behalf of an employer on behalf of an employer and acts on behalf of an employer at all times on matters concerning workers of such business is prohibited from participating in a trade union. The purport of the proviso is to ensure the autonomy of the

The term "person who acts on behalf of an employer with respect to the matters pertaining to the employee of the business" refers to a person who has certain authority and responsibility from the employer with respect to the determination of working conditions, such as workers' personnel affairs, wages, welfare, labor management, etc., or orders, direction, or supervision of the business (see Supreme Court Decision 88Nu6924, Nov. 14, 1989, etc.). The term "person who acts on behalf of an employer" refers to a person who acts on behalf of an employer on behalf of an employer, such as a person who has the authority to directly participate in the determination of labor relations, such as workers' personnel affairs, wages, disciplinary action, audit, labor management, etc., or who has the authority to deal with confidential matters concerning the employer's plans and policies related to labor relations, and thus, whether such person is a person shall not be uniformly determined on the basis of a certain class or position, and thus, it does not constitute a person who does not have any substantial conflict between the implementation of the business and the activities of an association member.

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance and decided that most of the employees of this case constitute "persons who act on behalf of a business owner in relation to the matters concerning workers" among the employees of this case who requested the withdrawal of the Korea Foreign Language University Branch (hereinafter "the Trade Union Branch") under the plaintiff's control by raising a question about the qualification of union members, and requested the withdrawal from the Korea Foreign Language University Branch under the plaintiff's control of the union members, and they constitute "persons who act on behalf of a business owner in relation to the matters concerning workers," and the chief or lower employees are employees in charge of personnel affairs, labor affairs, budget, accounting, or planning, or president's secretary or exclusive driver, water level, etc. who act on behalf of a business owner's interest." The court below determined that most of the employees of this case did not have the qualification of union members. The intervenor merely requested the employees to withdraw from the Trade Union by correcting unlawful conditions arising from the membership of the Trade Union branch without the qualification of union members, and did not constitute the organization and intervention.

In light of the aforementioned legal principles and the records, the court below’s determination that the employee of a position level or higher constituted “a person acting on behalf of an employer with respect to the matters related to workers” as a person with full-time decision-making authority regarding the division of duties, management of work positions, etc. However, if the employee of a position level or lower is in charge of personnel affairs, labor, budget, accounting, etc., or works as the president’s letter or exclusive driver, water level, etc., it cannot be said that he/she immediately constitutes “a person acting on behalf of the employer’s interest.” In light of the substance and authority of the work, etc., it can be deemed that the duty and responsibility of the employee’s position conflict with the duty and responsibility of the employee as a trade union member, only if he/she acts on behalf of the employer’s interest.”

Therefore, the lower court should have deliberated on whether the main officer among the instant employees constitutes “a person who acts on behalf of the employer in the interests of the employer” by verifying the content of duties and authority of the employee in charge, and further, should have deliberated on whether the employee in charge constitutes “a person who acts on behalf of the employer” and should have determined whether the employee in charge of unfair labor practice constitutes “unfair labor practice” rather than determining whether the employee in charge of unfair labor practice exists solely on the basis of the existence of membership eligibility.

The judgment of the court below is erroneous in the misapprehension of legal principles as to the interpretation and application of "a person who acts on behalf of the navigational users" under the proviso of Article 2 subparagraph 4 (a) of the Trade Union Act, and failing to exhaust all necessary deliberations.

The ground of appeal pointing this out is with merit.

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 Yang Chang-soo (Presiding Justice)