[1] Requirements for establishing an employer’s unfair labor practice under Article 81 subparag. 1 of the Trade Union and Labor Relations Adjustment Act, and the burden of proving such fact (i.e., assertion of unfair labor practice)

[2] In cases where an employer at a place of business, the personnel level of which is the criteria for bonus payment for workers, gives unfavorable personnel status to a member or non-member of another trade union on the ground that he/she is a member of a specific trade union, whether such an employer’s act may constitute unfair labor practices (affirmative), and the standard for determining whether an employer’s act constitutes unfair labor practices

[3] The purpose of the remedy system for unfair labor practices under Articles 81 through 86 of the Trade Union and Labor Relations Adjustment Act, and the purport of Article 84 of the same Act, which does not specifically provide for the type and content of remedy order

[1] Article 81 subparagraph 1 of the Trade Union and Labor Relations Adjustment Act / [2] Article 81 subparagraph 1 of the Trade Union and Labor Relations Adjustment Act / [3] Article 81 of the Trade Union and Labor Relations Adjustment Act

[2] Supreme Court Decision 2007Du25695 Decided March 26, 2009 (Gong2009Sang, 574) / [3] Supreme Court Decision 97Nu7448 Decided May 8, 1998 (Gong1998Sang, 1638) Supreme Court Decision 2007Du8881 Decided March 25, 2010 (Gong2010Sang, 823)

Boeo Electrical Systems Korea Co., Ltd. (LLC, Kim & Lee LLC, Attorneys O Sang-won et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

As shown in the List of Attached Intervenors (Law Firm Alternative Law Firm, Attorney Regular-ho, Counsel for defendant-appellant)

Seoul High Court Decision 2016Nu62216 decided January 19, 2017

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including costs of participation in the appeal.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 3

A. Article 81 subparag. 1 of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides that “the act of dismissal of, or disadvantages to, a worker on the ground that the worker has joined or attempted to join a trade union, or have organized a trade union, or has conducted other lawful acts for the operation of a trade union.” In order to establish an unfair labor practice as referred to in the above provision, the act of unfair labor should be done by the worker “justifiable acts for the operation of a trade union” and by the employer “discriminatory acts that disadvantage the worker, such as dismissal, etc. for that reason.” The burden of proof and burden of proof are on the part of asserting that the act is an unfair labor practice.

Meanwhile, an employer’s act may also constitute unfair labor practice if the employer at a workplace, whose level of personnel management and bonus payment for workers is subject to the criteria for bonus payment, has suffered disadvantage in paying bonus under the personnel situation unfavorable to a member of another trade union or a non-member of a specific trade union on the ground that the employer is a member of a specific trade union. In such cases, whether the employer’s act constitutes unfair labor practice shall also be determined after examining whether there was an objective reason to deem that the difference between personnel management and personnel management was attributable to the employer’s anti-union intent to treat unfavorablely on the ground that the difference was a member of a specific trade union, and whether the difference was not a member of a specific trade union even without such discrimination (see Supreme Court Decision 2007Du25695, Mar. 26, 2009).

B. In citing the reasoning of the judgment of the first instance court, the lower court, based on its reasoning, determined as follows, that the Plaintiff’s payment of bonuses to the instant workers, including the Intervenor joining the Defendant (hereinafter “ Intervenor”), who was generally lower class in the performance evaluation at the first half of 2014 pursuant to the bonus clause and the rules on payment of bonuses in 2014, based on the following circumstances, constitutes unfair labor practices.

(1) On April 9, 2014, a group of union members of the Korean Metal Trade Union and the Young Mando Branch (hereinafter “the instant branch”) in which the intervenors joined, and the union members and other workers groups, etc. belonging to the YH trade union which became the representative bargaining trade union on April 9, 2014 (hereinafter “representative bargaining trade union”), shall be a group of production workers with equal quality as union members, and there is no different proof that may affect the performance of their duties among the two groups. Nevertheless, there was a significant gap between the above two groups in the performance evaluation in the first half of the year 2014.

(2) In light of all the circumstances such as the dispute progress between the Plaintiff and its employees, the process of establishment of a representative bargaining labor union, the hostile speech and behavior of the Plaintiff’s executive officers belonging to the instant sub-chapters, the Plaintiff’s unfair labor practices against the instant sub-chapters, and the Plaintiff’s unfair disciplinary power against the members of the instant sub-chapters in the performance evaluation in 2014, it is presumed that the occurrence of a significant gap in statistically between the Plaintiff and the instant sub-chapters and the instant sub-chapters is attributable to the Plaintiff’s anti-cooperative intent against the instant sub-chapters on the ground that the instant workers are members of the instant sub-chapters, and thus, the existence of the intent to engage in unfair labor practices is presumed.

(3) In the performance evaluation of the first half of 2014, if there was no such discrimination, the instant workers, who belong to the instant branch, would have been given a higher grade.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, such determination by the lower court is justifiable as it is based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on unfair labor practice and failing to exhaust

2. Regarding ground of appeal No. 2

A. The purpose of the remedy system for unfair labor practices under Articles 81 through 86 of the Trade Union Act is to ensure the workers’ right to organize, collective bargaining, and collective action and to promptly normalize the order of labor-management relations by preventing and removing the employer’s acts that undermine the order of collective labor-management relations (see, e.g., Supreme Court Decision 97Nu7448, May 8, 1998). However, the type of actual labor practices is diverse, and the method and contents of remedy for the corresponding unfair labor practices need to be flexible and flexible as the effect is diverse according to changes in the labor-management relations. In addition, Article 84 of the Trade Union Act also provides that the Labor Relations Commission shall issue remedy orders to the employer when it determines that unfair labor practices are established, and does not expressly provide for the types and contents of remedy orders (see, e.g., Supreme Court Decision 2007Du881, Mar. 25, 2010).

B. Examining the contents of the provisions of the Trade Union Act and the purport of the remedy system for unfair labor practices, the lower court is justifiable to have rejected the Plaintiff’s assertion that the remedy order for unfair labor practices in this case was unlawful on the grounds of its stated reasoning, including, but not limited to, the fact that the remedy order for unfair labor practices was unlawful, on the grounds of its stated reasoning, the lower court did not err by misapprehending the legal doctrine on the legality of the remedy order for unfair labor practices, contrary to what is alleged in the grounds of appeal.

3. Conclusion

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

[Attachment] List of Intervenor joining the Defendant: Omitted

Justices Jo Hee-de (Presiding Justice)