Geumho Labor Union (Law Firm Lee & Lee, Attorneys Choi Su-young, Counsel for the plaintiff-appellant)

Geumho Co., Ltd. (Law Firm A&S, Attorneys Cho Young-ro et al., Counsel for the plaintiff-appellant)

National Metal Trade Union (Law Firm Sastast, Attorneys Lee Ho-eop, Counsel for defendant-appellant)

December 20, 2012

1. A. The Defendant shall not comply with the Plaintiff’s demand for collective bargaining regarding wages and conclusion of collective agreements in 2012.

B. The Plaintiff may not request the Defendant to conduct collective bargaining in relation to the conclusion of a collective agreement in 2012.

2. The plaintiff's claim is dismissed.

3. The costs of litigation incurred by the principal lawsuit shall be borne by the Plaintiff, and 1/2 of the costs of litigation incurred by the participation by an independent party shall be borne by the Plaintiff, and the remainder by the

The principal lawsuit: The defendant shall comply with collective bargaining with the plaintiff as to the matters for negotiation listed in the attached Table 1 list.

An independent party participation: Paragraph (1) shall be as follows.

1. Basic facts

A. Status of the parties

The Plaintiff is a company-level trade union consisting of some of the employees belonging to the Defendant (as approximately 200 persons). An independent party intervenor (hereinafter referred to as the “participating”) is a nationwide industrial trade union consisting of workers engaged in the metal industry-related fields, and as of January 1, 2012, a considerable number of the Defendant’s employees (as of January 1, 2012, approximately 3,000 persons) belong to the Intervenor’s Kuchip and Masung.

(b) notification and announcement of the determination of a trade union requesting bargaining.

1) On January 1, 2012, the Intervenor demanded the Defendant to conduct collective bargaining, and the Plaintiff demanded the Defendant to conduct collective bargaining on January 7, 2012. The Defendant publicly announced the fact of the Plaintiff and the Intervenor’s request for the said bargaining from January 11, 2012 to January 17, 2012 pursuant to Article 14-3(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”).

2) On January 18, 2012, the Defendant issued a notice of confirmation of a trade union requesting bargaining (hereinafter “instant confirmation notice”) to the Plaintiff and the Intervenor pursuant to Article 14-5(1) of the Enforcement Decree of the Trade Union Act (hereinafter “instant confirmation notice”). From the same day to January 22, 2012, the Defendant publicly announced the confirmation notice (hereinafter “instant confirmation notice”).

C. The plaintiff's objection and the decision of rejection of this case

1) On January 20, 2012, the Plaintiff filed an objection pursuant to Article 14-5(2) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act against the Defendant on the ground that the Defendant publicly announced the Intervenor’s number of union members by including the Plaintiff’s number of union members. However, the Defendant did not make a corrective publication following the Plaintiff’s objection by January 22, 2012, which is the closing date of the instant final decision

2) On January 26, 2012, the Plaintiff requested correction pursuant to Article 14-5(4) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act to the Jeonnam Regional Labor Relations Commission (hereinafter “Seoulnam Labor Relations Commission”). Accordingly, on February 3, 2012, Jeonnam Labor Relations Commission decided to dismiss the Plaintiff’s objection on the ground that “The Plaintiff’s objection is not about its content submitted by the Plaintiff, but about the content submitted by the Intervenor, and thus does not constitute grounds for objection under Article 14-5(2) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act.”

3) On February 3, 2012, Jeonnam-do Labor Relations Commission sent a copy of the instant dismissal decision to the Plaintiff and the Defendant by facsimile. In addition, Jeonnam-do Labor Relations Commission sent the original copy of the instant dismissal decision to the Plaintiff and the Defendant on February 6, 2012, and the said original copy of the said decision reached the Plaintiff and the Defendant respectively on February 7, 2012.

D. The defendant's notification of individual bargaining and the suspension of bargaining

1) On February 6, 2012 and December 10, 2012, the Intervenor notified the Defendant that the representative bargaining trade union was a majority trade union pursuant to Article 14-7(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act, on the ground that the representative bargaining trade union was not autonomously decided by the time in question.

2) However, on February 21, 2012, the Defendant notified the Plaintiff and the Intervenor of the intent to conduct collective bargaining individually pursuant to the proviso to Article 29-2(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “instant notification of collective bargaining”). Since then, the Defendant followed the negotiation procedures several times for concluding a collective agreement with the Plaintiff.

3) The Intervenor filed an application for provisional disposition with the Gwangju District Court 2012Kahap551 to promptly notify the Defendant that he/she was notified of the fact that he/she was a major trade union by the Intervenor. On May 17, 2012, the said court issued a provisional disposition order with the purport that “the Defendant was notified by the Intervenor that he/she was a major trade union within five days from the date of service of the instant decision” (hereinafter “instant provisional disposition order”).

4) Accordingly, the Defendant suspended individual negotiations with the Plaintiff after May 22, 2012.

[Ground of recognition] Unsatisfy, Eul evidence Nos. 1, 1 and 2, fact-finding results of this court's fact-finding, the purport of the whole pleadings

2. Relevant statutes;

The details of the statutes related to this case are as shown in attached Form 2.

3. The parties' assertion

A. The plaintiff

The Defendant’s notification of the instant negotiations was made within the period prescribed by the Trade Union and Labor Relations Adjustment Act, and accordingly, the Plaintiff and the Defendant have individual negotiations. The Defendant suspended individual negotiations with the Plaintiff from May 22, 2012 on the ground that the instant provisional disposition was rendered. This constitutes an infringement of the Plaintiff’s right to collective bargaining, and thus, the Plaintiff seeks to respond to the Plaintiff’s demand for collective bargaining against the Defendant.

B. Defendant

The provisional disposition order of this case is ordered to the defendant that the defendant is notified of the fact that the individual bargaining notification of this case was not made within the deadline prescribed by the Trade Union and Labor Relations Adjustment Act, and thus, the defendant cannot comply with the plaintiff's individual collective bargaining request.

(c) An intervenor;

The defendant's individual bargaining notification of this case was not made within the time limit prescribed by the Trade Union and Labor Relations Adjustment Act. Thus, the defendant has a duty to conduct collective bargaining with the intervenor who belongs to the majority trade union in accordance with the Trade Union and Labor Relations Adjustment Act. Nevertheless, the plaintiff's demand for individual bargaining to the defendant and the defendant's response to such demand is in violation of the intervenor's right to collective bargaining. Thus, the intervenor sought suspension of the plaintiff's demand for collective bargaining against the defendant, and seek prohibition against the defendant

4. Determination

A. The issues of the instant case

According to Article 29-2(1) and (2) of the Trade Union and Labor Relations Adjustment Act, where multiple trade unions exist in one workplace, a trade union shall determine a representative bargaining trade union and request a business entity to conduct collective bargaining; Provided, That where the employer consents not to undergo the simplification of bargaining windows (i.e., where the employer consents to the individual bargaining with the trade union), the employer may conduct individual bargaining with each trade union, and such individual bargaining agreement shall be made within the period of voluntary determination of the representative bargaining trade union by the trade union (hereinafter referred to as the "voluntary determination period of bargaining delegation"). The period of voluntary determination of bargaining delegation is prescribed in Article 29-2(2) of the Trade Union and Labor Relations Adjustment Act and Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act. The purport of the above provision is to ensure that the trade union requesting bargaining is to ensure that the representative bargaining trade union voluntarily determines the representative bargaining trade union or the employer agrees to the individual bargaining, and thus, the above provision is a mandatory provision.

Meanwhile, Article 14-6 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides that "where a trade union which has been determined or decided as a trade union which has requested bargaining pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act intends to autonomously determine a representative bargaining trade union pursuant to Article 29-2 (2) of the Trade Union and Labor Relations Adjustment Act, the representative, negotiating members, etc. of the representative bargaining trade union shall be jointly signed or sealed and notified to an employer." According to the above, the period of autonomous decision on the representative bargaining is 14 days from the date determined or decided pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act." In this case, the meaning of the above "the date determined or decided pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act." On the other hand, the plaintiff and the defendant asserted that a request for correction on the whole part of the plaintiff's union and the participant were unlawful, so the period of public announcement was expired by the above plaintiff and the intervenor.

Therefore, the issue of this case is the interpretation of the part of “the date determined or decided pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act,” which is the starting point of the autonomous decision period

(b) Computing the period of autonomous decision of the representative bargaining;

1) Whether the dismissal decision of this case should be based on the starting point of counting

In full view of the following circumstances recognized based on the overall purport of the facts and arguments as seen earlier, “the date determined or determined pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act” should be determined based on the dismissal decision of this case.

① In the objective meaning of the language “14th day from the date determined or determined pursuant to Article 14-5”, it is interpreted as the date the procedures pursuant to Article 14-5 of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act are completed among the procedures for simplification of bargaining windows under the Trade Union and Labor Relations Adjustment Act. Therefore, where a trade union requesting bargaining has made a request for correction to the Labor Relations Commission pursuant to Article 14-5(4) of the Enforcement Decree of the Trade Union and Labor Relations Commission, the period of self-determination of the representative bargaining shall not run until the Labor Relations Commission makes a decision on the request for correction pursuant to paragraph

(2) Since all trade unions which participated in the procedures for simplification of bargaining windows under the Trade Union and Labor Relations Commission Act voluntarily determine a representative bargaining trade union, the period should be specified in all such trade unions, and even if either trade union has first been specified, the period may not proceed unless the other trade union is specified as a trade union requesting bargaining. Here, the term “specified as a trade union requesting bargaining” means not only the trade union has been recognized as a trade union by the employer or the Labor Relations Commission as a trade union requesting bargaining, the name of the trade union, the number of its representatives at the time of the request for bargaining, the date of request for bargaining, etc. (see Article 14-5(1) and (2) of the Enforcement Decree of the Trade Union and Labor Relations Commission Act, and Article 10-4(1) of the Enforcement Rule of the Trade Union and Labor Relations Act, an employer is obligated to publicly announce the name of the trade union and the name of its representative at the time of the request for bargaining, the number of its members at the time of the request for bargaining, and the term of a trade union requesting bargaining after the above public announcement can be an employer.

(3) Article 14-5 (2) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides that "a trade union which has requested bargaining pursuant to Articles 14-2 and 14-4 may raise an objection to an employer during the period of public announcement pursuant to paragraph (1) where it is deemed that the details of public announcement made by the trade union pursuant to paragraph (1) are different from those submitted by it, or that the details of public announcement made by it have not been publicly announced." This is interpreted to the effect that a trade union requesting bargaining may raise an objection only to the contents of public announcement made with respect to itself. However, Article 14-6 (1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act does not provide for other legal effects depending on the type of the decision made by the Labor Relations Commission. In addition, Article 14-5 (2) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides that a trade union requesting bargaining shall make an objection to an employer regarding the contents of public announcement made by another trade union, and even if the Labor Relations Commission made a decision on such matter.

④ Article 14-5(2), (4), and (5) of the Enforcement Decree of the Trade Union and Labor Relations Commission Act restrict the period in which a trade union requesting bargaining may make a request for correction to the Labor Relations Commission, and the Labor Relations Commission shall make a decision on the above matters of request for correction within a given period. According to the above, the period in which the period of autonomous decision of the representative of bargaining is extended by the trade union requesting bargaining to the Labor Relations Commission for correction is about 20 days. Furthermore, according to Article 14-2(1) of the Enforcement Decree of the Trade Union and Labor Relations Commission Act, a trade union requesting bargaining may make a request for the simplification of bargaining windows from three months prior to the expiration date of the collective agreement. In light of the fact that Article 14-2(1) of the Enforcement Decree of the Trade Union and Labor Relations Commission provides that a trade union requesting bargaining may make a request for correction to the Labor Relations Commission, even if the period of the request for correction is made, it cannot be deemed that the period of the request for the simplification of bargaining windows is unfairly extended.

(5) On the contrary, if an employer or a trade union requesting bargaining does not proceed from the date of the decision of the Labor Relations Commission, but from the date of the decision of the Labor Relations Commission on the matters concerning other trade unions than its own matters, if it is interpreted that the period of autonomous decision on the bargaining request is in progress from the date of the decision of the Labor Relations Commission, or from the date of the expiration of the period of the decision of the Labor Relations Commission, the employer or the trade union requesting bargaining request shall make a prior decision on whether the contents of the request for correction of the trade union are legitimate or whether the Labor Relations Commission should make a decision on the rejection of the decision of the Labor Relations Commission prior to the decision of the Labor Relations Commission becomes final and conclusive, and it is unfair to require the employer or the trade union requesting bargaining request to make an ex post facto decision on the rejection of the decision of the Labor Relations Commission. Therefore, it is reasonable to deem that the period of autonomous decision on the representative decision of the Labor Relations Commission prior to the decision of the Labor Relations Commission, unless there is any special circumstance to the effect that the request for correction is clearly unfair.

2) The meaning of “date determined” under Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act

Next, the meaning of “date determined” under Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act should be interpreted as February 3, 2012, in full view of the following circumstances.

① Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act provides that “the date of determination or decision under Article 14-5” is “the date of determination or decision,” and it seems clear to interpret “the date of decision or decision” as “the date of decision or decision” in the objective meaning of the above language.

(2) According to the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act, in cases where a party to a Labor Relations Commission intends to take the date when the party to a Labor Relations Commission receives a notice or the date when the decision is notified, it is explicitly stated that “the date when the decision is notified” (Article 14-8(1)2) or “the date when the notice is given” (Article 14-11(3)4). This is distinguishable from the provision of “the date when the decision is made” under Article 14-6(1) of the Enforcement Decree of

③ The purpose of Article 29-2(2) of the Trade Union and Labor Relations Adjustment Act and Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act is to minimize the period during which collective bargaining should be delayed due to the procedures for simplification of bargaining windows. If the “date of decision” under Article 14-6(1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act is deemed to be “date on which a decision was delivered” rather than “date on which a decision was delivered,” the parties concerned are likely to unfairly delay the period when collective bargaining is not delivered or delivered intentionally due to special circumstances.

④ Article 17-2(1) of the Labor Relations Commission Act provides that “The Labor Relations Commission shall without delay notify the parties concerned of the result of a resolution by a subcommittee.” Article 17-2(2) of the Labor Relations Commission provides that “The Labor Relations Commission shall notify the parties concerned of the disposition in writing, and the effect of the disposition shall arise from the date of receipt of a written order, a written decision, or a written decision on review. In addition, Articles 29-2(7) and 69(1) of the Trade Union and Labor Relations Commission may make a decision on a request for bargaining by a trade union. The parties concerned may apply for reexamination of the decision to the Central Committee. The period of application for reexamination shall be within 10 days from the date of receipt of the written decision. Therefore, where the Labor Relations Commission makes a decision pursuant to Article 14-5(5) of the Enforcement Decree of the Trade Union and Labor Relations Commission Act, it shall be notified without delay to the parties concerned, and the parties shall be given an opportunity to apply for reexamination for 10 days from the date of receipt of the written decision.”

C. Judgment on the Plaintiff’s main claim

As seen earlier, the period of self-determination of the representative bargaining from February 3, 2012, in which the rejection decision of this case was issued, shall be calculated, and it is apparent that the notice of individual bargaining of this case was issued after February 21, 2012 from February 3, 2012 to 14 days. Accordingly, the individual bargaining notification of this case is null and void because it was not made within the period of self-determination of the representative bargaining. Thus, the plaintiff's assertion on the premise that the notification of individual bargaining of this case is valid is without merit.

D. Judgment on the Intervenor’s claim

As determined earlier, the notice of individual bargaining in this case is null and void, and there is no representative bargaining trade union for the respondent company within the period of autonomous decision of the representative bargaining union, and the intervenor is in the position of "a half-party trade union" under Article 14-7 (1) of the Enforcement Decree of the Trade Union and Labor Relations Adjustment Act.

Therefore, the intervenor, as a representative bargaining trade union, has the authority to conduct collective bargaining with the defendant pursuant to Article 29(2) of the Trade Union Act. The defendant's conduct of collective bargaining separately from the plaintiff infringes on the intervenor's right to collective bargaining as a representative bargaining trade union. Thus, the plaintiff does not request the defendant to conduct collective bargaining in relation to the conclusion of wages and collective agreements in 2012. In addition, the defendant shall not comply

5. Conclusion

If so, the plaintiff's claim is dismissed as without merit, and all the plaintiff's claim is accepted as reasonable.

[Attachment List, etc. omitted]

Judges Choi Jong-chul (Presiding Judge)