2019Du40345 Revocation of the Tribunal for Relief of Unfair Disciplinary Action

Korea Railroad Corporation

Law Firm LLC, Attorneys Cho Yong-han et al., Counsel for the defendant-appellant-appellant-appellee-appellant

The Chairperson of the National Labor Relations Commission

It is as shown in the list of supplementary intervenors for the defendant.

Law Firm Woo, Attorney Park In-bok

[Defendant-Appellant] Defendant 1 and 10 others

Seoul High Court Decision 2017Nu71958 Decided April 10, 2019

October 15, 2020

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff, including the part arising from the supplementary participation.

The grounds of appeal are examined.

1. Ground of appeal No. 1

The lower court determined that: (a) the wage agenda, such as wage negotiations in 2013, is one of the primary purposes of the secondary strike; and (b) there are circumstances to deem that pending issues, such as disciplinary action, compensation for damages, withdrawal of provisional seizure against railroad union members, withdrawal of circular transfer and opposition against one person working on board, etc., are included in the secondary strike purposes; (c) however, if excluded, the lower court did not reach the secondary strike, the lower court did not deny legitimacy of the objectives of the secondary strike.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on the legitimacy of the purpose of industrial action, as alleged in the grounds of appeal.

2. The second ground for appeal

A. The lower court determined that, in full view of the series of processes from the proposal of the wage agreement in 2013-201-201 to which the wage agreement was concluded through the vote of union members and the second strike, it was reasonable to view that, at the time of the vote for union members, labor disputes were occurred due to disagreements between the Plaintiff and the labor union in 2013 regarding wage negotiations, and one of the main purposes of the second strike was the wage negotiations in 2013, and thus, there was a pro-con voting by union members on the second strike.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine regarding the procedure for industrial action, as otherwise alleged in the grounds of appeal.

B. Whether there were errors during the voting period for supporting and opposing votes

1) Article 41(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides for promoting the autonomous and democratic operation of a trade union when a trade union conducts an industrial action by means of a consent of a majority of the union members by a direct, secret, and unsigned ballot, as well as for ensuring more careful and more careful decision-making of the trade union’s intention to commence the industrial action so that workers participating in the industrial action do not suffer any disadvantage in relation to the legitimacy of the industrial action after the fact, barring any objective circumstance in which the industrial action violating the above procedure cannot be followed (see, e.g., Supreme Court en banc Decision 9Do4837, Oct. 25, 2001).

However, it is difficult to view the legitimacy of the industrial action as follows solely on the ground that the pro-con voting for the industrial action by union members was conducted without going through the mediation procedure of the Labor Relations Commission as stipulated in Article 45 of the Trade Union Act.

A) Article 41(1) of the Trade Union Act limits an industrial action by vote of union members (see, e.g., Article 41(1)). A trade union is an independent and collective organization against the State and an employer for the purpose of maintaining and improving the working conditions and enhancing the economic and social status of workers, and thus, has the autonomy of the State and the employer, etc. (see, e.g., Constitutional Court Decision 2013Hun-Ma671, 2014Hun-Ga21, May 28, 2015). Thus, a trade union’s independent decision conforms to the purport of guaranteeing three labor rights under the Constitution, barring any special circumstance, such as that the time when the voting of union members for industrial action is held is limited by law.

B) The purport of Article 45 of the Trade Union Act, which provides for the pre-mediation of an industrial action, is to give an opportunity to avoid the occurrence of an industrial action by mediating disputes in advance, and is not to prevent the industrial action itself. Thus, even if the industrial action did not go through the pre-mediation procedure, it does not constitute an act of dispute lacking justification.

In light of the substance and purport of Article 45 of the Trade Union Act, the legitimacy of an industrial action ought not be determined on the basis of whether the industrial action was conducted the procedure for conciliation of a labor dispute at the time when the union members vote for and against the industrial action was conducted, in light of the substance and purport of Article 45 of the same Act.

2) In the same purport, the lower court determined that the legitimacy of the second strike cannot be denied solely on the ground that the pro-con voting by union members that was held after the labor dispute reached the status was held before the mediation procedure of the National Labor Relations Commission is completed. In so determining, the lower court did not err by misapprehending the legal doctrine on the procedural legitimacy of the industrial action

The Supreme Court decision cited in the ground of appeal in this part is related to the case where the vote against and against the Plaintiff was taken without reaching a labor dispute, and it is inappropriate to invoke the other case.

3. Ground of appeal No. 3

The lower court determined that the grounds for disciplinary action against the Intervenor 17 did not constitute justifiable grounds for disciplinary action on the part of the Intervenor 4 on the ground that it did not violate the social rules or that there was no evidence that the Intervenor was responsible for the joint assault by the head of the place of business of the search vehicle (hereinafter referred to as the “ Intervenor”) for the reason for disciplinary action against the Intervenor 36’s “joint assault by the head of the place of business of the search vehicle” did not violate the social rules, and thus, it is difficult to evaluate the Intervenor 4’s unauthorized occupation of the Seoul head of Seoul headquarters as infringing the Plaintiff’s right to manage the facilities or disrupt the organizational order. The lower court determined that the Intervenor 17 was against the principle of proportionality or against the principle of equity, even

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding grounds for disciplinary action and disciplinary action, or by exceeding the bounds of the free evaluation of evidence against logical and empirical rules.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Sang-ok

Justices Noh Jeong-chul

Chief Justice Noh Jeong-hee

Justices Kim In-bok