Plaintiff 1 and one other (Attorney White-ok, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Il-Jon Co., Ltd. (Law Firm Lee, Kim & Lee, Attorneys Lee Jae-in et al., Counsel for the defendant-appellant)

December 10, 2014

Seoul Administrative Court Decision 2013Guhap9373 decided March 20, 2014

1. The part concerning the Plaintiff Samsung Trade Union among the judgment of the first instance is revoked.

2. The plaintiff Samsung Trade Union's lawsuit shall be dismissed.

3. The Defendant’s Intervenor’s appeal against Plaintiff 1 is dismissed.

4. The total costs incurred between the plaintiff Samsung Trade Union and the defendant and the defendant joining the defendant are borne by the plaintiff 1, and the defendant joining the defendant's appeal against the plaintiff 1 is borne by the defendant joining the defendant.

1. Purport of claim

A. Plaintiff 1

On March 5, 2013, the National Labor Relations Commission revoked the part of the decision made by the Plaintiff 1 in the retrial application case between the Plaintiffs and the Intervenor joining the Defendant on March 5, 2012, 2012, 2012No288 (Joint) and the application for reexamination of unfair labor practices.

B. Plaintiff Samsung Trade Union

Among the above decision of review, the part against the plaintiff Samsung Trade Union shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. All the plaintiffs' claims are dismissed.

1. Determination ex officio on the Plaintiff Samsung Trade Union’s lawsuit

The Plaintiff Samsung Trade Union (hereinafter “Plaintiff Samsung Trade Union”) was established on July 13, 201 on the organization of Samsung Group and its affiliated companies, and its employees, and the Plaintiff Labor Union opened a general meeting on December 28, 2012, and decided that all the union members join the Korea Metal Trade Union and agreed to continue its trade union activities as the Korea Metal Trade Union’s Samsung Branch and the Korea Metal Trade Union’s New Organization on January 14, 2013, while eight of the nine union members attend the general meeting on December 28, 2012, and the National Metal Trade Union’s branch decided to join the Korea Metal Trade Union and the Korea Metal Trade Union’s New Organization on January 14, 2013. The fact that the Plaintiff Trade Union members joined the Korea Metal Trade Union at that time does not dispute between the parties, or can be recognized

According to the above facts of recognition, it is reasonable to view that Plaintiff Trade Union and Labor Relations Adjustment had already been dissolved prior to April 2, 2013, which is apparent in the record that the instant lawsuit was filed. Ultimately, Plaintiff Trade Union and Labor Relations Adjustment Lawsuit was filed under the name of the extinguished non-corporate group, and is unlawful.

2. Determination on Plaintiff 1’s claim

A. Quotation of the first instance judgment

The reasoning of this court concerning the plaintiff 1's claim is as follows, except for the dismissal of part of the grounds of the judgment of the first instance or the addition of the judgment on the intervenor's argument of the trial. Accordingly, this court's reasoning is as follows. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

[Supplementary Use]

/3 pages 14 to 16: all of the following:

D. On December 20, 2012, the Plaintiffs were dissatisfied with the above initial inquiry court, and applied for reexamination to the National Labor Relations Commission on December 20, 2012 (hereinafter “Central Labor Relations Commission”). On March 5, 2013, the National Labor Relations Commission rendered a ruling dismissing all of the above applications for reexamination on the ground that the amount of disciplinary action is appropriate even if only the first ground for disciplinary action is recognized among the instant grounds for disciplinary action (hereinafter “instant decision on reexamination”).

m. 6 to 7 p.m. under 6: All of the following:

F) On September 18, 201, Plaintiff 1 et al., along with Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5 (hereinafter “Nonindicted 2 et al.”) around September 18, 201, sought to distribute the instant printed materials to the Intervenor’s workers who were landed from the instant through a transit bus in the future of the instant dormitory site. However, the Plaintiff 1 et al. failed to distribute the instant printed materials by preventing access with Plaintiff 1 et al. going forward in the front of the instant dormitory site. During that process, the Intervenor’s Environmental Safety Group’s agent 6 took a dispute with Nonparty 4 and expressed desire to Nonparty 4 (at the time, Nonparty 7 became aware of the instant dormitory site, but it is insufficient to recognize that Nonparty 8 et al.’s motion picture or image was insufficient.).

G) On September 16, 2011, Plaintiff 1 et al. and their daily behaviors (referring to Nonparty 2 et al., Nonparty 8, Nonparty 9 (the Plaintiff’s union member), Nonparty 10, Nonparty 11, and Nonparty 12 (the Plaintiff’s member of the Plaintiff’s Trade Union) tried to distribute the instant printed materials to the Intervenor’s workers who disembarked from a transit bus in front of the entrance of the instant dormitory even before September 16, 2011. However, the Intervenor’s management employees and service company guards failed to stop the instant printed materials. During that process, Nonparty 6 et al. al and Nonparty 3 and Nonparty 5 expressed desire to take care of the Plaintiff 1 and Nonparty 3, and Nonparty 13, the vice head of the Intervenor’s personnel group, laid down the instant printed materials. At the time Nonparty 2, Nonparty 2, the Plaintiff’s personnel group, Nonparty 1, the Defendant’s member of the Defendant, Nonparty 2, Nonparty 4, the Defendant’s right of the Defendant’s right of free speech.

/ 7 pages 7: “2013Nu182870” / “2013Nu18287”

4. At least 11 last conduct: “The description and image of evidence A No. 26, B or 63 are added on the basis of recognition.”

B. Additional Judgment of this Court

(1) As to the part concerning unfair reduction in the retrial decision of this case

(A) As to the ground of appeal No. 1

1) Summary of the Intervenor’s assertion

The act of Plaintiff 1’s distribution, etc. of the instant printed materials cannot be seen as a legitimate trade union activity in terms of its subject, purpose, means, and method. Therefore, the grounds for final appeal No. 1 are recognized.

2) Determination

Comprehensively taking account of the following circumstances revealed by the aforementioned facts and evidence adopted as well as evidence No. 12-2 and No. 12-2 and No. 60, the instant act of distributing printed matter constitutes legitimate trade union activities. Therefore, the Intervenor’s allegation in this part is not acceptable.

A) Whether the subject is justifiable

① The Intervenor recognized that the first instance court, not the Intervenor’s employee, was only four persons, including Nonparty 2, Nonparty 3, Nonparty 4, and Nonparty 5. However, on September 9, 201, three outside persons were more involved on September 16, 201, and five outside persons were more involved on September 16, 201. Furthermore, the Intervenor led to the instant act, such as the distribution of printed materials, and therefore, the instant act, such as the distribution of printed materials, cannot be deemed a legitimate trade union activity from the perspective of the principal agent.

② At the time of the Plaintiff, etc.’s act on September 9, 201 and September 16, 201, the Plaintiff, etc.’s distribution, etc. of the instant printed items, and on September 16, 201, only four non-party 2, etc. were not the Intervenor’s workers, and in the case of September 16, 201, other than non-party 2, etc., the fact that Non-party 8, non-party 9, non-party 10, non-party 11, and non-party 12 were found together at the site (However, in the case of September 9, 201, it is insufficient to acknowledge that there was three persons other than non-party 2, etc. of the Intervenor, as alleged by the Intervenor, and there is no other evidence to acknowledge it).

However, Plaintiff 1, etc. tried to distribute the instant printed materials twice in August 201, but was prevented from distributing them from the Intervenor’s side. On the other hand, at September 201, Nonparty 2, Nonparty 9 were the members of the Plaintiff’s union, and Nonparty 3, and Nonparty 4 were the members of the Plaintiff’s union, and they cannot be deemed as those unrelated to the activities of the Plaintiff’s union because they were the members of the Plaintiff’s union. In light of these circumstances, it is anticipated that the Intervenor would restrain the distribution of the instant printed materials even in September 201, and it is only deemed that the Intervenor received the help of those other than the Intervenor’s employee in order to promote the Plaintiff’s union while responding thereto, there is insufficient evidence that the distribution of printed materials of this case, etc. was led by those unrelated to the Plaintiff’s union.

B) Whether the objective is justified

① The Intervenor asserts that the primary purpose of the instant act, such as the distribution of printed materials, was not to publicize the Plaintiff’s union, but to slander the Intervenor, and thus, its justification is not recognized.

② It is recognized that the instant inducement contains somewhat stimulated or partially exaggerated expressions on the inducement. However, the main content of the instant inducement was to publicize the Plaintiff’s union and encourage the Intervenor’s interest and active participation. The Intervenor’s share in the inducement was very low, as well as to distort and exaggeration the facts beyond the permissible level of criticism that is acceptable by social norms. It does not seem that the content of the instant inducement is to defame the Intervenor, the employer.

On the other hand, Plaintiff 1, etc. was allowed to accompany the reporter at the time of performing the act, such as the distribution of the instant printed materials, etc. on September 16, 201, and the fact that the Plaintiff 1, etc. was prepared to prepare the shooting equipment in advance and taken the field. However, since August 201, Plaintiff 1, etc. continuously attempted the distribution of the instant printed materials from August 201, but it was controlled by the Intervenor once. In light of these circumstances, it appears that Plaintiff 1, etc. had the reporter accompany the reporter at the site of the act, such as the distribution of the instant printed materials, etc. on September 16, 201, or taken the scene by preparing for the shooting equipment was intended to obtain objective evidence on the Intervenor’s unfair labor practices and to guarantee the legitimate labor union’s activities by externally notifying the same.

Ultimately, the act of distributing printed articles in this case was conducted in the intent to actively know the Plaintiff’s union union for the exercise of the right to organize, and the legitimacy of its purpose is also recognized.

C) Whether the means and methods are justified

① The Intervenor asserts that the Intervenor’s act, including the distribution of printed materials, lacks legitimacy in terms of the means and methods of serious infringement on the Intervenor’s right to manage facilities.

② The dormitory of this case is a place under the Intervenor’s right to manage the facilities, and its nature guarantees the peace and freedom of privacy as much as possible, and can sufficiently be recognized that the Intervenor’s active management and control is necessary to do so. However, in full view of the following circumstances, the distribution, etc. of printed materials in this case cannot be deemed legitimate as the act of essentially infringing the Intervenor’s right to manage the facilities.

On August 26, 2011, the Defendant’s 45-line transit buses used to leave the Plaintiff were stopped in front of the Burland and the Dong door parking lot, and again stopped in front of the instant dormitory, and operated it in the direction of Seoul, Suwon, and Permitted. However, from August 26, 2011, the Intervenor changed the bus stops to the front of the Burland, 45-line transit transit bus stops in front of the Burland. As a result, the number of the Intervenor’s workers was reduced to move to the direction of the Burland, via the Burland. However, the Plaintiff 1 et al. was still under temporary retirement or dismissal, and thus, the Plaintiff 1 et al. was not allowed to engage in public relations activities for the Plaintiff’s union members in the front of the instant dormitory, and the Plaintiff 1 et al.’s front of the instant bus was also the same as the Plaintiff’s temporary stopping of the dormitory in front of the instant case.

On the other hand, considering the fact that customers using Island do not generally have access to the vicinity of the dormitory of this case, it is difficult to view that the distribution, etc. of printed materials in this case has caused a great trouble to the Intervenor’s normal business activities.

(B) 18-19: (a) the time during which the Plaintiff’s Trade Union distributed the instant printed matter to the Intervenor’s employees, is about 27.1% of the time during which the Intervenor’s employees leaves the dormitory. Moreover, the Plaintiff 1, etc. and the Defendant 1, etc. were to suspend the act of distributing the instant printed matter at around 19:0,000 immediately after leaving the dormitory, and left the front of the dormitory of the instant case. Therefore, it is difficult to deem that the Plaintiff’s act of distributing printed matter was seriously detrimental to the peace of residence of the Intervenor’s employees residing in the dormitory of the instant case, or seriously infringing upon private life.

Abrupted by the Plaintiff 1, etc., and his/her daily activities, without the Intervenor’s prior permission. However, around September 201, the Plaintiff’s labor union was established and it was necessary to notify the Intervenor’s employees of the establishment of a trade union. However, the Intervenor deleted the Intervenor’s e-mail promotional e-mail sent by the Intervenor to the Intervenor’s employees, and obstructed the Intervenor’s employees from accessing the Plaintiff’s labor union’s website via the in-house computer network. Moreover, on August 29 and September 6, 2011, the Plaintiff Trade Union sent an official door to urge the Intervenor to take preventive measures, but no answer was received from the Intervenor. Accordingly, it was sufficient to recognize that the Plaintiffs, as the Plaintiffs, requested the Intervenor to permit the distribution of the instant printed materials so that it can only be permitted.

At the time of the act of distributing the printed matter of this case, Nonparty 2’s speech and the fact that Nonparty 4 took the scams is recognized. However, there is insufficient evidence to acknowledge that Nonparty 2 made a speech by seriously infringing the peace of residence of the intervenor workers living in the dormitory of this case, such as the use of loudspeakers, or that the contents of the speech were irrelevant to the purpose of promoting the plaintiff’s union. In addition, although Nonparty 4’s criticism about the intervenor, it is only determined that the contents of the scams cited by Nonparty 4 were within the scope acceptable by social norms, it is only an incidental act conducted during the process of distributing the printed matter of this case. Furthermore, the disturbance occurred during the process of the act of distributing the printed matter of this case was derived from the Intervenor’s management employees or service company guards’ control employees’ restraint of distribution of printed matter by mobilization of scams.

(B) As to the Second Disciplinary Grounds

1) Summary of the Intervenor’s assertion

The Plaintiff 1 disseminated false facts in relation to the death of the deceased by publishing a written name or conducting an interview with a media organization. Therefore, the grounds for the second disciplinary action are recognized.

2) Determination

As seen earlier, the National Labor Relations Commission recognized only the grounds for disciplinary action No. 1 out of the instant grounds for disciplinary action. Ultimately, the Intervenor’s assertion is not permissible since it added a new ground for a disposition that is not recognized as identical to the grounds and basic facts of the disposition of the National Labor Relations Commission. Even if the view is different, in light of the following: (a) Plaintiff 1, who cited the first instance court as seen earlier, has announced his/her name in writing or interviewed with a press organization; and (b) details of the interview, etc., it cannot be deemed that Plaintiff 1 committed a wrongful act, such as the grounds for disciplinary action No. 2.

Therefore, this part of the Intervenor’s assertion is either ambiguous or groundless.

(2) As to the part concerning unfair labor practices in the review decision of this case

(A) Summary of the Intervenor’s assertion

An intervenor was subject to the instant disciplinary action based on the justifiable grounds for disciplinary action, and the determination thereof is also appropriate. Furthermore, when considering the details and process of the instant disciplinary action, it cannot be deemed that the intervenor had expressed an intent to engage in unfair labor practice.

(B) Determination

In full view of the facts and evidence acknowledged earlier, evidence No. 12-1, 25, 29, 36 of the evidence No. 12-2, and evidence No. 38 and 39-2 of the evidence No. 31-2, and the following circumstances, the instant disciplinary action is reasonable to deem that the instant disciplinary action is an act that gives disadvantages to the worker on the ground that the worker performed justifiable acts for the trade union’s business operations, and constitutes unfair labor practices under Article 81 subparag. 1 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”). Accordingly, the Intervenor’s allegation in this part is not acceptable.

1) As the Intervenor did so in detail, the instant disciplinary cause, which was based on the instant disciplinary action, is not recognized.

2) Whether the instant disciplinary action constitutes an unfair labor practice is directly related to whether the Intervenor’s restraint on the distribution, etc. of printed materials in the instant case constitutes the exercise of legitimate right to manage facilities. However, in full view of the following circumstances, it is reasonable to view that the Intervenor’s restraint on the distribution, etc. of printed materials in the instant case constitutes unfair labor practice under Article 81 subparag. 4 of the Trade Union Act, rather than exercising legitimate right to manage facilities, by controlling or participating in the organization and operation of a trade union by workers.

A) On June 20, 201, Nonparty 14, the Intervenor’s group meal service division vice-subsidiary, established Samsungland Trade Union (hereinafter “Non-Party Trade Union”) which is the Intervenor’s company-unit trade union, and concluded a collective agreement with the Intervenor on June 29, 2011. However, in the case of the above collective agreement, there is no content different from the rules of employment regarding the basic working conditions, and there is also no evidence to prove that the collective agreement was concluded between the Non-Party Trade Union and the Intervenor on the conclusion of the collective agreement. Furthermore, in addition to the circumstances where the collective agreement was established after the establishment of the Non-Party Trade Union and the multiple labor union was implemented from July 1, 2011 to the implementation of the multiple labor union system, the Intervenor appears to have concluded a formal collective agreement with the Non-Party Trade Union to prevent in advance the demand for collective bargaining of the trade union to be established after July 1, 2011.

B) The fact that the establishment of the Plaintiff’s labor union was promoted was reported to the press on July 7, 201. However, Nonparty 15 and Nonparty 16, the superior of the department, such as Plaintiff 1, were the head of Nonparty 1, the head of Nonparty 1, and Nonparty 16, the head of Nonparty 1, the non-party 1, on July 8, 2011, the non-party 1’s non-working day (which is the non-party 15 and Nonparty 16’s working hours). In light of these circumstances, in light of these circumstances, the intervenor appears to have been waiting for the Plaintiff 1’s working day from around July 8, 201, who led the establishment of the Plaintiff’s labor union from around July 2011 to around July 3, 2011, and against this, it is difficult to believe that some of the statements in the evidence Nos.

C) On July 11, 2011, the Intervenor demanded the attendance of Nonparty 17, who is the vice-chairperson of the Plaintiff’s union, to the personnel committee on the grounds of deliberation on the grounds of disciplinary action. The Plaintiff’s union was established on July 12, 2011. The Intervenor held the personnel committee on July 14, 201 and July 18, 201 immediately thereafter and subsequently took disciplinary action against Nonparty 17. Furthermore, on July 16, 2011, the Intervenor took an audit against Nonparty 7 with the Plaintiff’s union’s employer on July 30, 201, and decided on two-month suspension from office against Nonparty 7. On the other hand, the Intervenor did not appear to have been aware of Nonparty 1’s violation of the duty to take disciplinary action against Nonparty 17 and Nonparty 7 on July 22, 2011, but it was difficult to deem the Intervenor’s violation of the duty to take disciplinary action against Nonparty 17 and Nonparty 7 on the ground that it was discovered.

D) The Plaintiff Trade Union’s website cannot be accessed through the Intervenor’s intra-corporate computer network. However, such blocking is made by adding non-business sites to non-business sites on the part of the Intervenor. Therefore, the Intervenor knew the existence of the Plaintiff’s Trade Union website and then, it appears that the Intervenor took active measures to block access by classifying it as non-business sites.

In addition, on July 27, 201, Plaintiff 1 sent the Intervenor’s e-mail to the Intervenor’s workers through the intra-company computer network to inform the Intervenor of the establishment of the Plaintiff’s labor union and requesting the intervention. However, on the part of the Intervenor, the Intervenor acknowledged that Plaintiff 1 unilaterally deleted the above e-mail on the ground that the Plaintiff used the intra-company computer network for non-business use, and contrary thereto, Plaintiff 1’s e-mail cannot be believed in light of the entries in evidence 6-3.

E) The instant printed matter was distributed from August 26, 201 to August 18, 201, and immediately thereafter, 45 passenger bus stops used by the Intervenor were automatically changed.

On the other hand, the intervenor argued that the method of changing the bus stops for 45 passengers from August 26, 201 to August 26, 2011 was already established, and that the change of the bus stops for 45 passengers and the distribution of printed items in this case is no relation, such as not changing the bus stops for 25 passengers, etc.

On July 6, 2011, the representative of the members of the Mapo-gu Council proposed a change of the bus stop. The intervenor decided that the entry into the shuttle bus is implemented after consultation with the competent departments related to the Paris Construction." However, in the case of the bus shuttle through 25 passengers, it is recognized that the stop has not been changed. However, prior to the enforcement date of the change of the bus shuttle 45 passengers' bus stop, prior to the distribution of the instant printed materials, it is difficult to believe that the Intervenor had no consultation with the entrusted bus operation company or the Paris Construction Department, and prior public materials for workers, etc. Furthermore, it is difficult to view that the Intervenor’s distribution of the bus shut 250 passengers' bus shut 4 times more easily than the Plaintiff’s withdrawal of the bus shut 200 passengers’ retirement route. Furthermore, it is difficult to deem that the Intervenor was more likely to have obstructed the Intervenor’s distribution of the bus shut 15 times more than the Plaintiff’s withdrawal of the bus shut 1.

F) From July 15, 2011 to September 6, 2011, Plaintiff Trade Union sent three times to the intervenors an official door containing contents, such as the demand for labor-management consultation, the demand for restriction on distribution of printed materials for August, and the demand for public relations activities through outsourcing, etc. However, the Intervenor maintained the attitude that the Plaintiff Trade Union, which was a member of the Plaintiff’s Trade Union, requested for permission of public relations activities through drinking on August 12, 2013, did not respond to the demand (the Intervenor did not respond to the demand).

G) Even after the Intervenor’s management employees and security service employees were confirmed to have no intent to enter the dormitory of this case with Plaintiff 1, etc., the Intervenor’s management employees and security service employees continued to restrain the distribution of the instant printed matter. Therefore, the primary purpose of the Intervenor’s management employees and security service employees’ entry of the dormitory of this case with Plaintiff 1, etc. was not to protect the Intervenor’s employees’ peace and privacy as much as possible, but to prevent the distribution of printed matter itself.

H) In August 201, there was a fact that the intervenor prevented Plaintiff 1, etc. from distributing printed materials twice. Meanwhile, Nonparty 13 received a report at the time of the act of distributing printed materials in this case and was in front of the dormitory of this case. However, Nonparty 13 was well aware that the Plaintiff 1, etc. led the establishment of the Plaintiff’s union and was able to distribute printed materials in this case in order to inform the establishment of the Plaintiff union. Nevertheless, Nonparty 13 protected the Intervenor’s right to manage the Intervenor’s facilities by suspending the Intervenor’s act of distributing printed materials in this case to the Intervenor’s management employees and the service company’s employees, but did not take measures necessary to seek ways to provide the opportunity to promote the Plaintiff’s union and others, and instead, discarded the printed materials in this case.

3) On March 29, 2012, the prosecutor rendered a non-prosecution disposition regarding the suspected violation of the Trade Union Act due to the act of unfair labor by the proposal against the Intervenor’s representative director, etc., such as the distribution of printed materials in this case. On May 22, 2012, the National Labor Relations Commission rendered a decision to dismiss a request for remedy against the part of the Plaintiff’s application for remedy against unfair labor practices by the Plaintiff’s union, the National Labor Relations Commission rendered a decision to dismiss the request for remedy against the part of the distribution of printed materials in this case, and the disciplinary action against Plaintiff 1 for March 3 of the instant case against Plaintiff 1 shall be recognized as the second of the Intervenor’

However, as seen earlier, the Intervenor’s distribution of printed materials in this case, which was the cause of disciplinary action against Plaintiff 1, constitutes legitimate trade union activities, and the Intervenor’s restraint on this action constitutes unfair labor practices. Therefore, the Intervenor determined that the Intervenor was sufficiently aware that disciplinary action on the ground of the instant printed materials distribution, etc. constituted unfair labor practices that give disadvantages to workers on the ground of legitimate trade union activities, and that delayed the time of disciplinary action against Plaintiff 1 is merely a result of the Prosecutor’s and National Labor Relations Commission’s determination on the relevant case, once in order to prevent further legal disputes surrounding whether to conduct unfair labor practices.

3. Conclusion

Since the lawsuit against the plaintiff's union is unlawful, it shall be dismissed, and since the plaintiff 1's claim is reasonable, it shall be accepted, and the part against the plaintiff 1 in the judgment on retrial of this case shall be revoked. The part concerning the plaintiff's union among the judgment of the first instance concerning the plaintiff's union of this case is unfair in conclusion, but the part concerning the plaintiff 1 concerning the plaintiff's union of this case is justifiable in conclusion. Therefore, the part concerning the plaintiff's union of the judgment of the first instance concerning the plaintiff's union of this case concerning the plaintiff's union of this case concerning the plaintiff's union of this case shall be revoked and dismissed (see Supreme Court Decision 94Da1

Judges Yoon Sung-sung(Presiding Judge) (Presiding Judge)