(a) In a case where the rules of employment prohibit the act of distributing printed materials in an intra-company without prior permission, whether the act of a worker who distributed printed materials related to a trade union at the point of occupation constitutes justifiable act for the affairs of a trade union;

(b) The case holding that an employee engaged in trade union activities does not refuse an order of business instruction without good cause, in response to the demand for individual interviews by the executives of the company;

Even if the company's employment rules prohibit the employee from distributing printed materials in an intra-company without prior permission, the employee's work place in the company is the only place where the employee can naturally gather working conditions or share information and opinions about the labor union. Considering that the employee's work place in the company is the only place where the employee can share working conditions or information and opinions about the labor union, the employer who has the right to manage corporate facilities determines the employment rules to prohibit the employee from transmitting information about the labor union in an intra-company in addition to working hours, unless it is acknowledged that such restriction is inevitable due to the nature of the business, it cannot be recognized as effective because it infringes the employee's independent right to organize, collective bargaining, and collective action rights guaranteed by the Constitution. Thus, it is reasonable to say that the act of distributing printed materials related to the labor union outside of working hours is to limit only distribution of printed materials unrelated to the labor union. Thus, the act of distributing printed materials to other workers with the necessity of the labor union and information about the formation of the labor union is a legitimate act that distort the working conditions of the company.

Article 39 of the Trade Union Act

Plaintiff

The Chairman of the National Labor Relations Commission

The Intervenor joining the Defendant

1. The decision of review rendered by the Defendant on August 20, 1990 between the Plaintiff and the Defendant’s Intervenor on the application case for remedy of unfair labor practice (90No132) shall be revoked.

2. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant is assessed against the Defendant and the Intervenor joining the Defendant.

The same shall apply to the order.

1. Details of the decision on retrial;

On June 21, 1989, the Plaintiff joined the Intervenor’s Intervenor Company (hereinafter referred to as the “ Intervenor Company”) and worked as a production worker. On December 29 of the same year, the Plaintiff filed an application for remedy with the Gyeonggi-do Regional Labor Relations Commission by asserting that the Plaintiff violated internal rules on December 29 of the same year, and that the dismissal was an unfair labor practice. On March 21 of the same year, the Plaintiff received a decision of dismissal from the said Committee, and filed an application for retrial with the Defendant as prescribed in Section 132 of the same year. However, the Defendant did not dispute between the parties that rejected the Plaintiff’s application for reexamination on August 20 of the same year.

2. The legality of an adjudication.

(A) The plaintiff asserts that the ground for dismissal, which was taken by the participant company, in the dismissal of the plaintiff, is three cases such as distribution of incentives in the company, the type of objection to the order on duty, the inducement of the cause of obstruction of work, etc. However, among them, distribution of printed articles is a legitimate act done by the plaintiff for the plaintiff's trade union's work, and the defendant's refusal of the defendant's request for individual interview by the participant company for the purpose of impairing the trade union's work, and it does not comply with the intervenor's legitimate business instruction, and there is no ground for inducing interference with work. Thus, the above dismissal does not constitute unfair labor practice, even though it is evident that the participant company committed as a retaliation against the plaintiff's trade union's trade union activity, and the above dismissal does not constitute unfair labor practice. Accordingly, the intervenor's intervenor asserted that the above dismissal was unlawful, in addition to the above three grounds for dismissal by the participant company as above, the defendant's dismissal is also employed by concealing the academic background of the junior college at the time of the plaintiff's employment. The above dismissal is not legitimate.

(B) Therefore, we first examine whether the intervenor company's educational background at the time of his dismissal was the ground for dismissal.

The evidence No. 2 submitted by the intervenor company as meeting minutes of the personnel committee which was held in the dismissal of the plaintiff is that "(i) distribution of printed materials from December 26, 1989; (ii) distribution of printed materials from the order issued on December 27, 1989; (iii) interference with work on the same day; and (iv) resolution shall be passed to dismiss the intervenor as a full-time dismissal of all personnel committee members by making false statements on the above violation of the regulations and the curriculum; and there is no room to deem that the intervenor company was the reason for dismissal at the time of the plaintiff's membership."

However, in light of the general form and method of the document preparation, if the plaintiff's academic background was considered as one of the grounds for dismissal independently, it should be stated in the other reasons and the column of the minutes of the personnel committee thickness. However, the above evidence No. 2 stated three reasons such as the distribution of printed materials as above, and if the academic background is stated only in the column of the disciplinary reason, it is difficult to preferentially obtain the reasons for the document prepared in such a separate form. In addition, according to the evidence No. 1 of the document No. 1 of this case without dispute, the participant company sent the plaintiff a notice stating three reasons such as distribution of printed materials, etc. to dismiss the plaintiff. Thus, if the academic background of the plaintiff at the time of the above personnel committee's resolution was discussed as the independent reasons for dismissal, the participant company No. 1 of this case stated that the above notice was an independent reason for dismissal No. 3 of this case.

Furthermore, the date of preparation of Eul evidence Nos. 7 (Certificate) with the content of the plaintiff's graduation from the new junior college management department as of February 3, 1988 is clear that the intervenor company was issued after the dismissal on Jan. 16, 1990. Meanwhile, the participant company's production department at the time of the dismissal, who participated in the above personnel committee as the production department of the intervenor company, stated in this court that "the person himself was aware of the plaintiff's junior college graduation from the employee of the company on Dec. 27, 1989, which is the day before the resolution against the plaintiff was made," and that the plaintiff was not present at the meeting of the above personnel committee on the next day. Thus, even if the testimony of the above witness was true, it was impossible to verify the plaintiff's academic achievement through the plaintiff's principal due to a relationship which the plaintiff did not attend the personnel committee, and it was hard to view that the intervenor company was dismissed after the dismissal, and it was no more objective evidence to prove that the plaintiff company was dismissed.

In addition, the non-party 1 stated in this court that "the intervenor company became aware of the graduation of the plaintiff's new junior college after the dismissal of the plaintiff." If the above witness facts, Eul evidence 2 did not state the above facts as grounds for dismissal after the intervenor company's dismissal of the plaintiff, and then the intervenor company sent a notice of dismissal (Evidence No. 1) stating only three reasons such as inducement and distribution of incentives to the plaintiff as the ground for dismissal after objective confirmation of the above facts, the non-party 1 stated that the plaintiff's above ground for dismissal should not be deemed to have been newly prepared in the column for disciplinary reasons, and it cannot be deemed that the above evidence was written in a way that added the above evidence No. 2 to the resolution, and it cannot be seen that the plaintiff's above evidence No. 1 was not stated as grounds for dismissal, and it cannot be seen that the intervenor company was not issued with evidence No. 9 of this case's dismissal after the plaintiff's dismissal without any specific necessity (the above evidence No. 97).

Therefore, the above evidence No. 2 is insufficient as evidence to prove that the intervenor company was a reason for independent dismissal, and there is no other evidence to support this point. Thus, the intervenor intervenor's above evidence No. 2 is not acceptable.

(C) Next, we examine whether unfair labor practices have been established.

(1) 위 갑 제1호증, 성립에 다툼이 없는 갑 제4호증의 4(고소장),5(진술조서),10(진술조서), 을 제3호증(취업규칙), 을 제4호증의 1,2(유인물표면 및 이면)의 각 기재 및 증인 소외 1, 같은 이형권, 같은 어명진의 각 증언(다만 위 각 증인의 증언 중 뒤에서 믿지 아니하는 부분은 제외)에 변론의 전취지를 종합하면, 트랜스 등의 제조업을 영위하고 있는 참가인 회사의 근로자들인 원고와 소외 1, 7, 2 등은 1989.12.25. 의정부시내 식당에서 노동조합결성대회를 개최하여 소외 1을 위원장으로, 소외 2를 부위원장으로, 소외 7을 회계감사로, 원고를 사무장으로, 소외 3을 조직부장으로, 소외 4를 교육선전 부장으로, 소외 5를 문화부장으로 각각 선출한 다음, 노동조합의 결성사실을 다른 근로자에게 알리기 위하여 사내에 벽보를 부착하고 유인물을 배포하기로 결정한 사실, 이에 따라 소외 5는 같은 달 26. 점심시간에 임박한 11:45경부터 11:50경까지 사이에 참가인 회사의 식당과 화장실에 "노동자란 무엇인가"라고 기재된 벽보를 부착하고, 원고와 소외 1등은 점심시간 중에 참가인 회사의 근로조건이 열악하다는 점을 부각시키면서 노동조합의 필요성과 함께 노동조합의 결성사실을 알리는 내용의 유인물을 다른 근로자들에게 배포한 사실, 참가인 회사 간부들은 이러한 사실을 알게 되자 그 즉시 벽보를 떼어내고 유인물을 회수하는 한편, 그 경위를 조사한다는 이유로 영업부장인 소외 이형권, 생산계장인 소외 윤기현, 장춘식등이 같은 날 15:15경에 원고를 포함한 위 노동조합간부 7명에게 개별면담을 요구하였으나 원고 등은 노동조합의 활동과 관련한 행위에 대하여 회사간부와 개별적으로 면담을 할 경우 참가인 회사측에서 회유와 설득으로 노동조합의 와해를 기도할지도 모른다고 보고 이를 거절한 사실, 위 윤기현, 장춘식 등은 다음날 09:35경 원고 등 노조간부에게 다시 개별면담을 요구하였다가 원고 등이 같은 이유로 이를 거절하고 작업을 계속하자, 작업조장들에게 작업라인의 가동중단을 지시하고 원고 등을 강제로 끌어내려 시도함으로써 그 과정에서 상호간에 실랑이가 벌어져 일부 작업라인의 가동이 1시간 가랑 중단된 사실, 그러던 끝에 집단면담에는 응하겠다는 원고 등의 주장이 받아들여져 소외 홍순걸, 이형권 등 회사간부와 원고, 소외 1 등 노동조합간부가 같은 날 10:25경에 사내의 디스코장에서 모여 집단면담을 하였는데, 그 자리에서 회사간부들은 별다른 주제도 없는 내용의 대화로 시간을 끌면서 같은 날 17:00경까지 원고 등 노동조합간부들의 출입을 사실상 통제하여 결국 노동조합간부들은 같은 날 12:20경 회사내의 식당에서 개최하기로 예정된 노동조합결성보고대회조차 열지 못하였고, 특히 노동조합부위원장인 소외 2는 복통으로 위 디스코장 밖으로 잠시 나온 사이에 사장실로 불러 들어가 참가인 회사측의 설득을 받고 노동조합탈퇴서에 날인하게 된 사실, 한편 참가인 회사는 같은 날 원고 및 소외 4, 1, 3, 6, 5를 징계절차에 회부하기로 결정하여 그 다음날인 같은 달 28. 아침에 인사위원회 참석통지서를 전달하고 나서 같은 날 13:00경에 인사위원회를 개최하여 그 전원을 해고하기로 의결한 다음, 그 결의에 터잡아 인사위원회에 참석한 소외 1, 6에게는 같은 날에 즉시 해고통지를 하고, 노동조합설립신고관계로 인사위원회에 참석하지 못한 원고와 소외 4에게는 그 다음날에 해고통지를 하는 한편, 소외 5에 대하여는 그 전에 받아 놓은 사직서를 수리하는 방식으로 의원사직처리를 한 사실, 참가인 회사는 원고에 대하여 ① 1989.12.26.자 유인물배포, ② 같은 달 27.자 면담거부에 의한 명령불복종, ③ 같은 날짜의 작업방해행위로 취업규칙 1-4-(11), 9-3-(1), 9-3-(3)에 위반하였음을 해고사유로 삼은 사실, 참가인 회사의 취업규칙 1-4-(11)은 "사전허가 없이 사내에서 업무와 무관한 집회, 시위, 연석, 방송, 유인물의 배포행위를 하지 못한다"고 규정하고 있고, 동 규칙 9-3-(1)은 견책 또는 감금사유의 하나로 "업무상의 지시명령을 이유 없이 거부한 자"를 규정하고 있으며, 동 규칙 9-3-(3)은 승급정지 이하의 징계사유나 정상에 따른 강등 또는 해고사유의 하나로 "사내질서를 문란케 한 자"를 규정하고 있는 사실을 인정할 수 있고, 위 각 증인들의 증언과 갑 제4호증의 6 내지 9(각 피의자신문조서, 을 제9호증의 5 내지 8고 같은 것임)의 각 기재 중 위 인정에 반하는 부분은 믿지 아니하며 달리 반증이 없다.

According to the above facts, in light of the fact that the intervenor company actually obstructed the holding of the labor union formation report conference as seen above and the withdrawal from the labor union by Nonparty 2, the vice-chairperson, and that the intervenor company had 5,000 days prior to the formation of the labor union, in full view of the fact that the principal half of the union was dismissed or resigned from the labor union activity of the plaintiff et al., it is clear that the intervenor company had a aversion to the plaintiff et al., on the other hand, among the grounds for dismissal of the intervenor company against the plaintiff, ① distribution of printed articles is an act for the plaintiff's labor union's work, and ② the refusal of interview and the inducement for interference with work is an act on the extension line related thereto. Thus, the above dismissal should not be avoided if the intervenor company did not have any ground for dismissal or legitimate act for the trade

(2) Therefore, based on the above facts of recognition, first of all, the participant company's employment rules 1-4 (11) prohibit in-house inducement distribution activities without prior permission. However, considering that the worker's work place in an enterprise is the only place where the worker naturally gather working conditions or information and opinions about the labor union, it is determined that the worker's management right prohibits in-house distribution of information about the labor union or its opinion about the labor union outside working hours, unless it is acknowledged that such restriction is inevitable due to the nature of the business, it cannot be recognized as effective because it infringes on the worker's independent right to organize, collective bargaining, and collective action rights guaranteed by the Constitution. Thus, in case of the participant company, it cannot be seen that there is any inevitable circumstance that prohibits in-house distribution of printed materials related to the labor union beyond working hours. Thus, if the worker's work place in the enterprise is an employer who has the right to manage corporate facilities, the employer's act of restricting the labor union's distribution of printed materials only within the scope of the worker's inducement's legitimate distribution of printed materials.

Next, as to whether there are grounds for ordering non-compliance with the Plaintiff’s act of refusal of interview and dismissal of inducement for interference with the work, the health stand for the Plaintiff as above, and immediately after the establishment of the labor union, the fact that the executive officers of the company conducted an investigation in the manner of individual amnesty with respect to the other party involved in the trade union activities are likely to cause interference with the organization and operation of the trade union. Therefore, even though the intervenor’s intent of interview was irrelevant to the control and involvement in the activities of the union and was purely to maintain order in the company, it is sufficiently acceptable to accept the reasons why the plaintiff et al. demanded a collective interview and refused an individual interview. Thus, it cannot be deemed that the plaintiff refused to comply with the intervenor company’s individual request for interview without any reasons. Moreover, since the participant company’s individual request for consultation is reasonable, it cannot be deemed that the plaintiff refused to comply with the intervenor company’s business instruction and order without any reason. In addition, since the participant company’s individual request for consultation with the plaintiff et al., it may not be attributable to the plaintiff.

(3) Therefore, dismissal against the plaintiff is ultimately made on the ground of dismissal of the intervenor company, as a retaliation against the plaintiff's trade union activity, on the ground that the intervenor company's legitimate act and ground for non-founded act for the plaintiff's trade union operation as a retaliation against the plaintiff's trade union activity. Thus, this constitutes an unfair labor practice under Article 39 subparagraph 1 of the Trade Union Act. The defendant's decision on reexamination is unlawful because it judged that the above

3. Conclusion

Therefore, since the decision of the retrial of this case is unlawful, the plaintiff's claim seeking its revocation is justified, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition.

Judges Kim Jae-chul (Presiding Judge)