Seoul Metropolitan Government Urban Railroad Corporation (Seoul Metropolitan Government Seocho Law Firm, Attorneys Park Sang-chul, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Intervenor 1 and two others (Law Firm Subdivision, Attorney Park Jae-in, Counsel for the intervenor-appellant)

December 6, 2006

Seoul Administrative Court Decision 2005Guhap22463 decided Feb. 2, 2006

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. Of the costs of appeal, the part arising from the participation by the Plaintiff, the Defendant, and the Intervenor 1, among the parts arising between the Plaintiff and the Intervenor 1, shall be borne by the said Intervenor, the remainder by the Defendant, and the part arising between the Plaintiff, the Intervenor 2, and the Intervenor 3, by the Plaintiff’

1. Purport of claim

The decision made by the National Labor Relations Commission on June 9, 2005 between the Plaintiff and the Defendant’s Intervenor (hereinafter referred to as the “ Intervenor”) shall be revoked with respect to the case of application for reexamination of unfair dismissal remedy, the decision made by the National Labor Relations Commission shall be revoked.

2. Purport of appeal

The purport of appeal by the plaintiff is to revoke the part against the plaintiff in the judgment of the court of first instance. On June 9, 2005, the National Labor Relations Commission revoked the decision of retrial rendered by the plaintiff and the intervenor 2 and 3 on June 9, 2005 with respect to the case of application for remedy against unfair dismissal.

The purport of appeal by the defendant: The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasons why a member should explain this case are as follows: "it is possible to recognize" at the last 4th of the judgment of the court of first instance; "No. 36-1 through 4; Eul evidence No. 55; Eul evidence No. 56-1 through No. 56; Eul evidence No. 35; Eul evidence No. 53; and Eul evidence No. 53 shall not be trusted; and it shall not be subject to the grounds for disciplinary action against the intervenor No. 4 through No. 14; and the part "No. 11 shall be subject to the grounds for disciplinary action against the intervenor No. 1. 4; the intervenor No. 1 added the following judgments with regard to the newly asserted matters at the court of first instance; thus, it shall be cited as the grounds for the judgment of the court of first instance, except for adding the following judgments to Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts to be dried;

On the other hand, even if the intervenor 1 did not attend the Plaintiff’s work or worked at the Plaintiff’s work during the period claimed by the Plaintiff, the intervenor’s act constitutes grounds for disciplinary action under Articles 6 and 14 of the Rules of Employment, and Articles 51 subparag. 1 and 3 of the Rules of Employment.

Although the above intervenor is not a union leader, he took part in the union operation as the head of the branch office in accordance with the practice of recognition of exclusive responsibility for union operation even if the above intervenor was not a union leader, he asserts that the process of absence from office is obviously contrary to the above labor practice and is unfair.

In full view of the overall purport of the arguments in evidence Nos. 1, 2, and 26-2 of evidence Nos. 1, 1, 2, and 26-2, the intervenor 1 is the chief of the Labor Relations Management Branch, the executive officer of the Trade Union, and according to Article 10(2) of the collective agreement, the intervenor 1 is the chief of the Trade Union and Labor Relations Management Officer, and the union chief executive officer of the Trade Union under Article 10(2) of the collective agreement, and the fact that the plaintiff Corporation was aware of the fact that it did not attend the above intervenor’s business site and that it did not impose any special sanctions at the time.

However, there is no evidence to acknowledge the existence of such a practice as alleged by the above intervenor, in addition to the above-mentioned evidence Nos. 36-1 to 4, and Eul No. 55, and part of the evidence No. 53.

Rather, comprehensively taking account of the purport of evidence No. 26-2, evidence No. 68, evidence No. 69, and evidence No. 69-1 through No. 66, a union activity is conducted outside of working hours in principle. However, in this case where the head of a legitimate union activity recognized by the chairperson after prior consultation with the Plaintiff Corporation is conducted, it is limited to seven full-time union members who are in exclusive charge of union union activities under the collective agreement, and it can be recognized that the chairperson of the union, the chief secretary, the director general, the director general, the director general, the director general, the director general, the director general, the director general, the director general, the director general, the director general, the director general, the director general, and the director general, etc. were working as union members at the time. Thus, in light of the purport of limiting the provisions of the collective agreement on union activities, the provisions of the collective agreement on union activities, and the number of union members who can concentrate on union activities, the above intervenor's assertion that the Plaintiff et al.

3. Additional matters to be determined;

A. The intervenor's assertion

(1) Article 62 subparag. 3 of the Labor Union and Labor Relations Adjustment Act (hereinafter “Act”) which provides the basis for the Seoul Regional Labor Relations Commission’s decision to refer a case to arbitration ex officio on July 20, 2004 is unconstitutional in that it harms the principle of labor-management autonomy.

(2) In accordance with the decision of the Seoul Regional Labor Relations Commission to refer to arbitration ex officio, trade union members could not conduct industrial action for 15 days from the date of the referral to arbitration, but the labor union and the intervenor 1, who is its member, were engaged in the industrial action from July 21, 2004 to July 25 of the same month (hereinafter “instant strike”). The process leading to the strike is merely the lead of inducing the industrial action of the labor union by sending a public notice to four government agencies, including the company and the company, which proposed to make ex officio arbitration, to the four government agencies including the company and the company. In addition, the labor union consisting of the majority of the employees of the labor union and the union members, which completed the report of establishment on October 17, 1994, became the main body of the labor union, and the labor union members, who participated in the industrial action, were not the party to the industrial action, to minimize the inconvenience of the citizen by using non-vic means to improve the working conditions, and the parties to the industrial action in this case were justifiable.

B. Determination

(1) Whether the ex officio arbitration system is unconstitutional or not

(A) Articles 62, 63, and 71 of the Act provide that, in the case of so-called “essential public-service” where the suspension or discontinuance of business, such as subway transport business, may seriously endanger the daily life of the general public, substantially impede the national economy, and is not easy to replace the business, an industrial action shall not be conducted for 15 days from that date when the Local Labor Relations Commission has decided to refer to arbitration.

(B) The legislative purpose of the ex officio arbitration system is to maintain the daily life of the public and preserve the national economy by allowing the Labor Relations Commission to resolve disputes through arbitration, since the extreme conflict and conflict between the labor and management in essential public-service businesses is not easily resolved by the agreement, and the conflict between the labor and management can lead to the risk of collapse of the national economy. The legislative purpose of the arbitration system is to maintain the daily life of the public and preserve the national economy. In addition, the purpose of maintaining the daily life of the public and preserving the national economy can be included in the broad concept of public welfare, which is the maintenance of social order and the public welfare. Accordingly, the above legal provision is pursuing the maintenance of order and the public welfare from among the fundamental rights limitation stipulated in Article 37(2) of the Constitution.

(C) The supply of goods and services essential for the life of the people due to labor disputes in an essential public-service area may cause serious social confusion, cause serious harm to the life and body of the people, and, in the event of a fundamental daily life or severe threat to the national economy. In a case where it is necessary to maintain public interest and the national economy by preventing such danger situation, doing so ex officio by the Labor Relations Commission may serve as an effective means to promptly and smoothly resolve labor disputes in a reasonable way. In addition, the emergency adjustment and the compulsory arbitration system, which are separately recognized under the law, are merely function as a remedy, and are not sufficient to stabilize the life of the people and the national economy. Accordingly, adopting the method of resolving labor disputes before reaching the strike, which is necessary and appropriate for pursuing legitimate purposes under the Constitution, can be one of the means necessary and appropriate.

(D) In addition, the subject of the ex officio arbitration under the discretionary arbitration system is limited to respective businesses of railroads, water, electricity, gas, oil supply, hospital, the Bank of Korea, and communications, including urban railroads. Under the current labor-management conditions of Korea, recognizing the compulsory arbitration system to promptly and smoothly resolve labor disputes before reaching an industrial action only for essential public works, is the minimum necessary measure to maintain and preserve public interests and the national economy.

On the other hand, the public interest to be protected by the compulsory arbitration system is not only the legal interest that has the most important personal value, such as life, body, and health of majority citizens, but also the important public interest of maintaining and preserving the whole national economy. Such public interest is not easy in comparison with the private interest of guaranteeing the right of collective action to protect the rights and interests of workers at the workplace in question or of labor-management autonomy. Accordingly, the two legal interests are balanced.

(E) Therefore, the above ex officio arbitration system is just in its legislative purpose, and its method of restricting fundamental rights under the law is appropriate, and the degree of restriction of fundamental rights is minimum, as well as the balance between the public interest to be protected and the private interest to be restricted, and thus, it cannot be deemed that it violates the Constitution by recognizing the suitability of the means under the principle of excessive prohibition under the Constitution (see Constitutional Court Order 2001Hun-Ga31, May 15, 2003).

(2) Determination on the legitimacy of an industrial action

(A) Circumstances leading to the instant ex officio arbitration

1) As the collective agreement concluded on February 6, 2002 with the Plaintiff Corporation and the Plaintiff Corporation concluded on or around February 2, 2002 terminated, the Trade Union and Labor Relations Commission proceeded with negotiations on wages and collective agreements from May 6, 2004. In particular, the revised Labor Standards Act, which included the implementation of the five-day work system (40 hours work per week), went into force on July 1, 2004, became an important issue of the Convention negotiations.

2) On June 11, 2004, at that time, labor unions established a joint strike headquarters of the National Tramways Union (hereinafter “National Tramways Union”) composed of the Incheon, Daegu, Busan, Busan, and the Railroad Workers’ Union, the Seoul subway Workers’ Union, etc. (hereinafter “National Tramways Union”). ① creation of jobs in the public sector through the reduction of labor hours, ② implementation of the five-day work system for a week with no degradation of labor conditions, ③ suspension of restructuring, non-discriminatory elimination and permanentization, ④ strengthening the public nature of subways and railroads, ⑤ preparation of citizen safety measures and budgetary support to the central government, 6) securing citizens’ health rights and securing of track workers’ health rights, 7) withdrawal of provisional seizure, and resolution was adopted to develop a strong joint strike from a national railroad perspective in order to accomplish the above demands.

3) Despite the main bargaining and working negotiations, the Plaintiff Corporation and the Trade Union did not narrow the views on the number of new employees, working hours, wage increases, etc. In the end, the negotiations concluded on June 30, 2004 were declared. In the negotiations, the labor union demanded the maintenance of the previous working conditions, the increase of the number of employees necessary therefor, and the wage increases. On the other hand, the Plaintiff Corporation asserted small wage increases rather than the application of the amended working conditions under the Labor Standards Act, the number of employees, and the number of employees.

4) On July 2, 2004, the Trade Union and Labor Relations Commission filed an application for mediation of a labor dispute with the National Labor Relations Commission. From July 5, 2004 to July 7, 2004, the Trade Union and Labor Relations Commission held a pro-con voting for industrial action against the total of 5,658 union members, and the industrial action was resolved with the consent of 3,045 union members among 5,001 union members. On July 8, 2004, the Trade Union and Labor Relations Commission held a committee for mediation of the dispute with all of the central extension executive members and representatives, and announced the schedule of "one reorganization of the traffic system of July 10, 2004, one of the implementation of the traffic system of 40 hours per week, the Seoul Special Metropolitan City and public bylaws meetings of the union members of July 13, 200, the general meeting of union members of July 20, the general meeting of union members of July 20, 2007,"

5) The Seoul Regional Labor Relations Commission (Seoul Regional Labor Relations Commission) urged the autonomous resolution between labor and management through three meetings and field guidance, but the proposal was not drawn up. On July 19, 2004, Seoul Regional Labor Relations Commission (hereinafter “Seoul Regional Labor Relations Commission”) proposed a proposal that “(i) the type of work and the number of persons working until August 31, 2004, shall form a working committee and request a specialized institution to provide services until December 31, 2004, and (ii) the current working form is maintained, monthly, yearly, and physiological leave shall be paid in accordance with the Labor Standards Act, and (iii) the overtime pay shall be 3% compared to the total amount of wages in 204.” However, the Labor Relations Commission did not refuse to accept the proposal on the grounds that there was no content on “the increase in the number of new workforce 3,205 and the improvement in the working environment related to the five-day working system.” On the same day, the Seoul Urban Railroad Labor Relations Commission notified the Seoul Urban Labor Relations Commission to refer to arbitration to public interest members ex officio 204.

6) Notwithstanding the Seoul Regional Labor Relations Commission’s decision to refer to arbitration ex officio, on July 20, 2004, the Trade Union held a strike with 1,300 members from subway No. 6 World Cup stadium Station on July 20, 200. On July 20, 2004, the Trade Union held a strike transition system from July 21, 2004 to the main factory of the Plaintiff Corporation's Gyeongyang-si District, moving Plaintiff Corporation's Gyeongyang-si to the main factory of the Gyeongyang-si District, and held a strike transition system from July 21, 2004. From around that time until July 20:47, 2004 to the 2,391 members were refusing to provide labor collectively by suspending the business related to the operation of subway No. 5,6,7,8, and subway No. 8, while attending the 2,391 members.

7) Accordingly, for the normal operation of subways, the Plaintiff Corporation suffered damages due to interference with the operation of its emergency duty personnel and approximately 1,500 external substitute personnel (fire fighters, police officers, etc.) by inserting approximately 1,500 personnel.

[Based on the recognition] Gap evidence 72, Eul evidence 73, Eul evidence 2, Eul evidence 3-1 through 3, Eul evidence 4-1, 2, Eul evidence 5-1, 5-2, Eul evidence 6, Eul evidence 7, Eul evidence 8 through 10, Eul evidence 11, Eul evidence 20, Eul evidence 59, Eul evidence 59, Eul's testimony and the purport of whole pleadings

(B) Determination

1) In light of the institutional purport of an ex officio arbitration system as necessary and legitimate means to prevent social confusion caused by industrial disputes in an essential public-service area and infringement on the people’s basic living, and the legal coercion prohibited from any strike for 15 days after the decision of ex officio arbitration was rendered, in principle, in a case where a trade union and an intervenor 1, who is a partner of the trade union, has caused unexpected confusion or damages to the employer’s business operation by reducing the strike within the above arbitration period, thereby hindering the business operation of the trade union and an intervenor 1, who has caused significant inconvenience to the people’s living, and thus, the industrial action, in principle, lacks legitimacy

2) Furthermore, in light of all the circumstances revealed in the facts of the recognition as above, there is no justification for the instant strike by the labor union and the Intervenor in light of the circumstances such as the developments leading to the instant strike, the situation of the strike, the situation of the strike, and the fact that not only caused confusion and damage to the business operation of the Plaintiff Corporation by the subway for about four days due to the strike, but also caused many inconvenience to the citizens using the subway, etc.

3) In addition, the above intervenor asserted that the responsibility of the strike of this case was the primary cause of the Plaintiff’s non-constituous negotiation attitude, etc., but the illegal strike against the law cannot be justified merely by the mere issue such as the negotiation attitude between labor and management.

4) Therefore, the instant strike is an illegal industrial action lacking legitimacy.

4. Conclusion

Therefore, the judgment of the first instance is legitimate, and all appeals by the plaintiff and the defendant are dismissed. It is so decided as per Disposition.

Judges Cho Yong-ho (Presiding Judge)