Conven Wnn Anthromobrus Limited Liability Company (Attorneys Kim Jae-hoon et al., Counsel for the plaintiff-appellant-appellee)

The Chairman of the National Labor Relations Commission

National Metal Trade Union (Law Firm Inn, Attorneys Haw-ho et al., Counsel for the defendant-appellant)

November 23, 2016

Seoul Administrative Court Decision 2015Guhap7745 decided June 9, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff, including the part arising from the supplementary participation.

The judgment of the first instance shall be revoked.

On September 8, 2015, the National Labor Relations Commission revoked the decision of review on September 8, 2015 on the application for correction of violation of the duty of fair representation between the Plaintiff and the National Metal Trade Union (connife) and the Central Telecommunication Union, 2015.36, 37 (Consolidated), and 37 (Consolidated).

1. Quotation of the first instance judgment

The grounds alleged by the Plaintiff in the trial while filing an appeal are not significantly different from the contents already asserted by the Plaintiff in the first instance trial. In full view of the evidence and the purport of the entire pleadings submitted by the first instance court, the fact-finding and judgment by the first instance court is recognized as legitimate, and there is no error of law such as misunderstanding of legal principles as to the relevant provisions, including the status of the representative bargaining trade union,

Therefore, the reasoning of this court concerning this case is as follows, and the reasoning of the judgment of the court of first instance is stated in addition to supplementing part of the case as follows. Thus, this court cites it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts in height:

In addition, the first instance judgment Nos. 7, 11, and 12 of the first instance judgment "the plaintiff appealed to the above judgment and is currently pending in the appellate court." The plaintiff appealed to the above judgment, but was dismissed (the Daejeon High Court 2015Na13940), and the plaintiff filed a second appeal and is currently pending in the final appeal."

3. Supplementary judgment

A. The plaintiff argues that the duty of fair representation of a representative bargaining trade union applies over the whole process of implementing the collective agreement, but it is contradictory to the reasoning that it is difficult for a representative bargaining trade union to consider that it has a comprehensive power of representation in the process of implementing the collective

Inasmuch as the duty of fair representation is not only the content of collective bargaining or collective agreement which is the result thereof, but also the interpretation and application of collective agreements during the period in which a representative bargaining trade union maintains its status, it shall be observed in terms of substantive and procedural aspects. However, such duty of fair representation does not constitute the basis for the comprehensive representative authority of a representative bargaining trade union. Articles 29-2(1) and 29(2) of the Trade Union Act confers a trade union which is a representative bargaining with the employer as well as the legal status of concluding collective agreements. Article 29-5 of the Trade Union Act comprehensively grants the Plaintiff’s authority to make a collective bargaining and to make a collective agreement with the labor union which is a representative bargaining trade union during the period in which the representative bargaining trade union maintains its status. Article 29(3) and (4) of the same Act, Article 37(2) and Article 38(3) of the Trade Union Act provides that the labor union’s authority to make a comprehensive recommendation of an industrial action is not consistent with the rationale prescribed in Article 5(2).

B. Where an employer or a representative bargaining trade union treats any other trade union which has participated in the procedures for the simplification of bargaining windows from a representative bargaining trade union under the interpretation of the language and text of Article 29-4(1) of the Trade Union Act and the relevant legal provisions, where an employer or a representative bargaining trade union treats any other trade union which has participated in the procedures for the simplification of bargaining windows differently from a representative bargaining trade union, the burden of proof as to the existence of such discrimination shall be borne by the small number of trade unions claiming it, and where the discrimination is proven, the representative bargaining trade union and the employer shall bear the burden of proof as to whether there is any reasonable ground for such discrimination. Accordingly, the Plaintiff’s assertion based on the premise that the

4. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed, and it is so decided as per Disposition.

Judges Lee Dong-won (Presiding Judge)