National Metal Trade Union (Attorney Kim Sang-sung et al., Counsel for the defendant-appellant)

Bosh Co., Ltd. (Law Firm Ha & Yang et al., Counsel for the defendant-appellant)

December 10, 2013

Daejeon District Court Decision 2012Gahap35037 Decided April 17, 2013

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

The plaintiff confirmed that the plaintiff is in the position of representative bargaining trade union for collective bargaining to conclude wages and collective agreements in 2012 against the defendant.

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for any parts used or added as follows. Thus, this Court’s reasoning is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

○ Subsequent to the second page of the first page of 11, the following is added:

(8) Article 14-7 of the Enforcement Decree of the Act on the Confirmation of a Representative bargaining Trade Union (hereinafter referred to as the "Determination of a majority trade union") provides that an employer who is notified of the fact that the majority trade union is a trade union shall announce its contents for five days from the date of receipt of such notification (paragraph (2)). On the other hand, Article 14-5 of the Enforcement Decree of the Act on the Establishment of a Trade Union shall not determine a trade union as a representative bargaining trade union if there is no objection within the period of public notification. (1) The trade union that requested bargaining shall not make a notification or public announcement of the fact that the employer has determined the trade union as a representative bargaining, and the trade union that requested bargaining shall make an objection to the public announcement or public announcement thereof by the date of voluntary determination or public announcement of the expiration of the period of public announcement or public announcement. (2) If an employer deems the content of such objection as reasonable, it shall be deemed that the trade union has not made an objection to the voluntary determination or public announcement of the expiration of the period of public announcement or public announcement. (3)

○ Subsequent to the “recognition,” of heading 14 and 15 of the title 13:

The Defendant asserts that the number of the members of the Plaintiff and the non-party union who participated in the procedures for simplification of bargaining windows was 389 and 166 members of the non-party union at the time of March 1, 2012. Thus, even according to the Defendant’s assertion, the number of the members of the Plaintiff at the time of March 1, 2012 (=389 persons - 166 persons), and it is evident that the Plaintiff fell under the majority trade union at the time of March 1, 2012).

○ The following shall be added between 13 pages 15 and 16:

E. Determination as to the defendant's assertion that the plaintiff cannot have the status of a representative bargaining trade union without going through the procedures for establishing a majority trade union

1) The defendant's assertion

The defendant asserts that the procedures for determining a majority trade union under Article 14-7 of the Enforcement Decree are mandatory, and the plaintiff does not constitute a majority trade union under the Trade Union Act, since the plaintiff did not undergo the above procedures.

2) Determination

However, the defendant's assertion that Article 14-7 of the Enforcement Decree of the Trade Union organized by a majority of all the union members of all the trade unions participating in the procedures for the simplification of bargaining windows provides that "the trade union organized by a majority of all the union members of the bargaining windows shall notify the employer of the name, etc. of the trade union within five days from the expiration date of the period specified in Article 14-6 (1) (paragraph (1)) and if the employer is notified of the fact, the employer shall make a

However, Article 29-2 (3) of the Trade Union Act provides that "where a representative bargaining trade union is not determined within the period of self-determination of the representative bargaining trade union and its employer does not obtain consent from the users, a major trade union shall be a representative bargaining trade union." Thus, a trade union organized by the majority of all the union members of the trade union participating in the procedures for simplification of bargaining windows at the time of determining the base date of the majority trade union shall be a representative bargaining trade union as a matter of course, and if a representative bargaining trade union cannot be a representative bargaining trade union without going through the procedures prescribed by the Enforcement Decree, it is restricted by the provisions of the mother law by the Enforcement Decree

In addition, the purpose of the Enforcement Decree of the Act is to guarantee the rights of other trade unions that have an objection to the number of union members on the base date of the decision of the majority trade union. In full view of the entries and arguments in the evidence No. 5, No. 6, and No. 9, the number of union members of the non-party union was 166 on March 1, 2012, the number of union members of the non-party union was 166 on which the non-party union himself/herself prepared a newsletter with the content that the majority union was a union member after March 2, 2012, and a document verifying the membership of the union. Thus, in this case where it is difficult to deem that the rights of the non-party union were infringed due to the omission of the procedures for the confirmation of the majority trade union under the Enforcement Decree, it is unreasonable to deny the status of the plaintiff's representative bargaining trade union as the plaintiff

Therefore, the defendant's above assertion is without merit.

F. Judgment on the defendant's assertion that the plaintiff lost the status of the representative bargaining trade union

1) The defendant's assertion

The defendant asserts that the plaintiff lost his status in accordance with Article 14-10 (3) of the Enforcement Decree because he did not conclude a collective agreement with the defendant for one year, even though he was in the position of the representative bargaining trade union regarding collective bargaining for the purpose of concluding wages and collective agreements with the defendant in 2012.

2) Determination

The defendant's assertion that Article 14-10 (3) of the Enforcement Decree of the Act provides that "if a representative bargaining trade union determined pursuant to Article 29-2 of the Act fails to conclude a collective agreement for one year from the date it is determined, any trade union may demand an employer to negotiate."

However, it is deemed that the representative bargaining trade union’s failure to conclude a collective agreement even though the representative bargaining trade union was conducting collective bargaining for one year and an employer is either the absence of an intent to exercise a representative bargaining authority or the neglect or abuse of its authority. Therefore, in such a case, it is deemed that the purpose of guaranteeing the collective bargaining right of the trade union is to be to ensure the collective bargaining right of the trade union by resumption of the procedures for simplification of bargaining windows so that a new representative bargaining trade union may be established. Therefore, in cases where collective bargaining is interrupted between the representative bargaining trade union and the employer due to reasons clearly attributable to the employer, such as denying the status of the representative bargaining

In full view of the purport of the entire pleadings in the statement in the evidence No. 7 of this case on the premise of these legal principles, the defendant recognized the plaintiff as a representative bargaining trade union from March 23, 2012 with the consent to the demand of the non-party union for individual bargaining on March 23, 2012, and did not conduct collective bargaining. Thus, the period during which collective bargaining was interrupted shall not be included in the period of one year under Article 14-10 (3) of the Enforcement Decree. Thus, it is clear that the above one-year period as of the date of the closing of argument in the

Therefore, the defendant's above assertion is without merit.

○ 13 Had the 16th page “Indemn” of the 16th page.

2. Conclusion

If so, the plaintiff's claim shall be accepted with due reasons, and the judgment of the court of first instance is justified with this conclusion, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judge Cho Dong-dong (Presiding Judge)