[1] In a case where a worker is dismissed after promotion and assignment, and a request for remedy against unfair dismissal is dismissed as well as the period of the application, whether there is a benefit of remedy for promotion and assignment conversion to the worker, in case where the above dismissal is deemed as a ground for dismissal, even though it was rejected as such (affirmative)

[2] Requirements and criteria to determine whether promotion measures against workers constitute unfair labor practices

[3] Whether the conversion of placement for the actual reason of workers' legitimate labor union activities constitutes unfair labor practice (affirmative), and the standard for determining whether the conversion of placement constitutes unfair labor practice

[4] The case holding that promotion and assignment conversion of workers constitutes unfair labor practice

[1] When a worker was dismissed after promotion and assignment, the Regional Labor Relations Commission made a request for remedy against unfair dismissal to the Regional Labor Relations Commission, but the request for review was rejected on the ground of the period of application, but the decision of dismissal became final and conclusive after dismissal was made to the National Labor Relations Commission, it is not yet determined whether the dismissal was justifiable. Furthermore, if the above dismissal constitutes an unfair labor practice in promotion and assignment conversion as a ground for the dismissal, and if the above dismissal is directly related to the ground for the above dismissal, there is a benefit in remedy for promotion and assignment conversion.

[2] Where an employer is aware of, or is willing to interfere with, a labor union activity of a worker, or is promoted to be an employee who is actively engaged in a trade union activity and loses membership, unfair labor practices can be established as an act that gives disadvantages to workers engaged in a trade union activity. In this case, whether promotion of a worker was made by an employer's intent to engage in unfair labor practices shall be determined by considering all the circumstances, such as the time of promotion, relevance to union activity, necessity of work, eligibility for ability, and the influence of promotion of the worker in question on union activity.

[3] An employer should be deemed to be an unfair labor practice in a case where it is acknowledged that the employer has transferred the worker's legitimate trade union activity for the reason of occupational necessity. Whether the placement conversion constitutes an unfair labor practice should be determined by comprehensively examining the motive and purpose of the placement conversion, the necessity or rationality of the business related to the placement conversion, the comparison and balancing with the worker's living disadvantage due to the transfer, the time of the placement conversion, the relationship with the employer and the trade union, the process of the placement conversion, the procedure taken by the employer, the procedure taken by the employer, and the existence of the doctor's intent of unfair labor practice presumed to exist at the time of the placement, etc.

[4] The case holding that it constitutes unfair labor practice on the ground that promotion and assignment conversion for workers actually constitutes an act of unfair labor practice on the ground that it was done with the intent to obstruct trade union activities as a preventive measure against the remaining alleged suspicion of workers' trade union activities

[1] Article 27(1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997; see current Article 30(1)); Article 27-3 (see current Article 33); Article 39 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 524 of December 31, 1996; see current Article 82 of the Labor Union and Labor Relations Adjustment Act); Article 27(1) of the former Labor Standards Act (amended by Act No. 5309 of March 13, 1997; see current Article 30(1) of the Labor Union and Labor Relations Adjustment Act (see current Article 30(1)); Article 27(3) of the former Labor Union and Labor Relations Adjustment Act (see current Article 30(1) of the Labor Union and Labor Relations Adjustment Act); Article 39 of the former Labor Union and Labor Relations Adjustment Act (see current Article 30(1) of the Labor Union and Labor Relations Adjustment Act)

[1] Supreme Court Decision 94Nu7959 delivered on February 17, 1995 (Gong1995Sang, 1475) / [2] Supreme Court Decision 92Nu9418 delivered on October 27, 1992 (Gong1992, 3317) / [3] Supreme Court Decision 91Nu9572 delivered on February 18, 1992 (Gong192, 1190), Supreme Court Decision 92Nu121 delivered on February 23, 1993 (Gong193, 1092), Supreme Court Decision 94Nu301 delivered on December 23, 1994 (Gong195, 691), Supreme Court Decision 95Nu939495 delivered on March 194, 195 (Gong1994, 195) 97Nu949495 delivered on March 1954, 1995)

[Defendant-Appellee] Defendant 1 and 3 others (Attorney Lee Sung-sung, Counsel for defendant-appellee)

The Chairperson of the National Labor Relations Commission

Defendant joining the Defendant (Law Firm General Law Office, Attorneys Yoon Jong-tae et al., Counsel for the defendant-appellant)

Seoul High Court Decision 96Gu2561 delivered on September 26, 1997

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

The grounds of appeal by the Plaintiff’s attorney are examined.

1. As duly admitted by the court below, although the defendant joining the defendant (hereinafter referred to as the "the intervenor") filed an application for remedy against unfair dismissal with the Regional Labor Relations Commission after the promotion and assignment of this case, the application period was dismissed on the ground of the request period, and the dismissal of the above dismissal decision became final and conclusive after the dismissal was made, it is not yet confirmed whether the dismissal is legitimate, and further, if the above dismissal constitutes an unfair labor practice in relation to the above dismissal as a ground for dismissal, and if the above dismissal constitutes an unfair labor practice in relation to the promotion and assignment conversion in this case, there is a benefit of remedy for the promotion and assignment of this case. Thus, the court below's decision to the same purport is correct, and there is no reason to view that the court below erred by misapprehending the legal principles as to disciplinary dismissal as asserted in the lawsuit, and therefore, it is not reasonable to review the facts of the plaintiff's appeal as alleged in the ground for appeal (see Supreme Court Decision 94Nu7959 delivered on February 17, 1995).

2. An employer’s act of giving disadvantage to a worker engaged in trade union activities by promoting a worker who is an executive member of a trade union or is actively engaged in trade union activities with intent to evade or interfere with trade union activities. In this case, whether promotion of a worker was made by an employer’s intent shall be determined by considering all the circumstances, including the time of promotion, relevance to union activities, necessity of work, reasonableness of ability and good faith, and impact of promotion of the worker concerned on union activities (see, e.g., Supreme Court Decisions 92Nu9418, Oct. 27, 1992; 92Nu972, Feb. 18, 1992; 91Nu9572, Dec. 23, 1994; 99Nu94169, Apr. 195, 1995; 97Nu979, Oct. 27, 199, etc.). 195; 209Nu9719, etc. It shall be determined as unfair labor practice.

그런데 원심판결 이유를 기록에 비추어 살펴보면, 원심이 그 판시와 같은 사실을 인정한 것은 정당하고, 거기에 사실을 오인한 위법이 있다고는 볼 수 없고, 원심이 적법하게 인정한 바와 같이, 참가인이 산업안전기사 1급의 국가기술자격증을 소지하고 주로 원고 회사 ○○공장 관리부 △△△△과장 대리로서 □□□□책임자로 근무하던 중 1992. 8.부터 1995. 8. 31.까지 노동조합의 위원장으로 재직하면서 적극적으로 정당한 노조활동을 하다가 같은 해 8. 23. 노조위원장 선거에서 낙선하고 같은 해 9. 1. 위 △△△△과장 대리로 원직 복귀하였는데, 원고는 같은 해 7. 10. 참가인 등 노동조합 간부들 9명에 대하여 노동쟁의조정법위반 및 업무방해 등의 혐의로 고소하는 한편, 같은 해 8. 23.에는 위 9명을 상대로 불법노동쟁의로 인한 손해배상청구소송을 제기하였고, 참가인은 노조위원장 선거에서 낙선한 후 불법선거임을 주장해 오다가 같은 해 9. 14. 선거무효확인소송을 제기하는 등 노동조합원으로서 노동조합의 조직 및 운영에 영향을 미칠 활동을 계속적으로 하여 오던 상태에서 원고 회사가 같은 해 9. 15. 업무상 필요성을 이유로 갑자기 참가인을 조합원 자격이 없어 조합활동을 할 수 없는 과장으로 승진시킴과 동시에 ◇◇ 본사 ∇∇부 소속 ▷▷지역 ☆☆구매 연락사무소를 다른 회사 수원 공장 내 2평정도 탈의실에 급조하여 신설하고 원고를 그 연락담당 및 원료 상차 감독으로 배치전환하여 참가인을 본래 업무와는 동떨어지고 참가인 생활근거지와 이격된 곳에서 근무하도록 하였으며, 그 후 참가인이 이에 불복하여 출근을 거부하자 원고가 위와 같이 고소 및 손해배상을 청구한 전임 노조간부들을 순차로 위 연락사무소로 배치전환한 것이라면, 이 사건 승진 및 배치전환은 실질적으로는 참가인의 종전 노동조합활동을 혐오한 나머지 이에 대한 예방적 차원의 조치로서 노동조합활동을 방해하려는 의사로 행한 것으로서 업무상 필요성은 표면적으로 내세운 사유에 불과한 것이라고 보아야 할 것이므로, 이 사건 승진 및 배치전환은 부당노동행위에 해당한다 할 것이어서, 같은 취지의 원심판결은 정당하고, 거기에 소론이 주장하는 바와 같이 부당노동행위 또는 승진 및 배치전환에 관한 법리오해의 위법이 있다고 할 수 없다. 또한 상고이유에서 들고 있는 판례들은 사실관계를 달리 하는 것으로서 이 사건에 적용될 수 없는 것들이다.

All appeals are without merit.

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

Justices Shin Sung-sung (Presiding Justice)