2014Da33604 Nullification of a suspension disposition, etc.

1. A;

A person shall be appointed.

A person shall be appointed.

4. D;

E Press

Seoul High Court Decision 2013Na42368 Decided May 2, 2014

February 13, 2018

All appeals are dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether the plaintiffs' participation in the strike of this case constitutes the grounds for disciplinary action of this case. In order for workers' industrial action to be recognized as legitimate, the following conditions must be met. First, the subject must be able to become the subject of collective bargaining. Second, the purpose should be to create autonomous negotiations between labor and management for the improvement of working conditions. Third, the employer shall commence when he/she refuses to conduct collective bargaining with respect to specific demands for the improvement of working conditions of workers, and barring special circumstances, shall undergo the procedures prescribed by relevant Acts and subordinate statutes, such as the decision of the union members' consent. Fourth, the means and methods should not be in harmony with the employer's property rights, nor should it constitute violence (see Supreme Court Decision 2004Du10852, Apr. 29, 2005, etc.).

The purpose of this study is to create autonomous negotiations between labor and management for the improvement of working conditions, which means that the requirements to be achieved by the dispute may constitute collective bargaining (see Supreme Court Decision 94Da4042 delivered on September 30, 1994). In a case where there are several purposes of pursuing industrial action and some of them are not justifiable, the propriety of the purpose of the industrial action shall be determined in accordance with the legitimacy of the main purpose or genuine purpose. In a case where it is deemed that the industrial action would not have been conducted if it was excluded from unfair requirements, the industrial action itself shall not be justified (see Supreme Court Decision 2007Du12859 delivered on June 23, 2009).

B. The court below determined that the strike of this case in which the plaintiffs participated constituted legitimate industrial action in terms of its subject, purpose, time, procedure, means and method, and thus the act of participating in the strike of this case does not constitute grounds for disciplinary action. The main reasons are as follows. (1) The strike of this case is deemed legitimate since it is determined that the strike of this case was an industrial action in which the E Headquarters (hereinafter referred to as the "Korea Headquarters") affiliated with the National Press Workers' Union, to which the plaintiffs belong, engaged in collective bargaining over 13 occasions and did not conclude a collective agreement with the defendant, and its purpose was to improve working conditions, including increase of wages, provision of institutional devices to guarantee fairness in broadcasting, etc.

(2) It is difficult to view that the headquarters labor union did not demand the retirement of G, which was the president of the Defendant at the time, or did not work as a goal, and did not take the opposition to the reorganization as a collective bargaining. Moreover, the issue of reorganization cannot be deemed as a direct cause for the collective bargaining consultation. (3) Even if the headquarters labor union opposed to the reorganization of the “domination of the formation of the organization,” which was one of the objectives of the strike in this case, even though it was reasonable to view that it would go against the implementation of the reorganization in a more large scale of personnel, such as institutionalization of a collective agreement. As the first collective agreement was the most fundamental and important issue to the headquarters labor union, it appears that the strike in this case was conducted to accomplish the argument made in the collective agreement even if it excluded the opposition to the reorganization.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court erred in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal, or by misapprehending the legal doctrine on the subject

There was no error affecting the determination.

2. Whether the act of Plaintiff A, B, and D constitutes a disciplinary cause for the instant disciplinary action. If the purpose of distributing documents through trade union activities is not to infringe upon the rights or interests of others, but to promote the unity of union members, the maintenance and improvement of working conditions, the promotion of workers’ welfare, and the enhancement of other economic and social status, as a whole, the act of distributing documents ought to be deemed as falling under the legitimate scope of activities of the trade union. This also applies to the case where the language stated in the document is likely to damage, injure, or injure the character, credit, reputation, etc. of others, or to do so, and there is a false or distorted or distorted fact relevance as stated in the document. Accordingly, it is not allowed to dismiss or give disadvantages to workers who prepared and distributed documents on the ground that the act was conducted (see, e.g., Supreme Court Decisions 193Da13544, Dec. 28, 1993; 203Da2938, Feb. 29, 2011).

B. The lower court’s issuance of Plaintiff A, B, and D on the grounds delineated below constitutes grounds for disciplinary action.

The lower court determined that Plaintiff A, B, and D did not use some of the exaggerations or insulting expressions about G that the Defendant and the president were involved in the publication, but it is reasonable to deem that the primary purpose of the publication was to maintain and strengthen the unity of the union members rather than impairing the reputation of individuals, and to improve the working conditions, economic, and social status of the union members. Accordingly, it falls under the legitimate scope of activities of a trade union and does not constitute grounds for disciplinary action.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by omitting judgment, thereby adversely affecting the conclusion of the judgment.

3. Whether the disciplinary action in this case has abused the disciplinary discretion

A. According to the rules of employment or standing regulations, if a disciplinary measure is provided for the grounds for disciplinary action and a number of disciplinary actions are possible for the same reason, the determination of any of them belongs to the discretion of the authorized person having authority over disciplinary action. However, such discretion is not arbitrary and convenient for the authorized person having authority over disciplinary action and it is required that there is a balance that is deemed reasonable by social norms between the grounds for disciplinary action and the disciplinary action. Thus, if it is recognized that a disciplinary measure has been abused discretion that is left to the authorized person having authority over the disciplinary action because it has considerably lost validity under social norms, it is unlawful (see Supreme Court Decisions 90Nu5627, Feb. 12, 1991; 2005Du8269, Jan. 31, 2008; 2005Du8269, Jan. 31, 2008). If it can be deemed that a disciplinary measure is an unlawful disposition that goes beyond the scope of discretion, the content and nature of the disciplinary action should be objectively recognized when comprehensively considering various factors such as the grounds for disciplinary action (see.

B. For the following reasons, the lower court determined that the instant disciplinary action was unlawful as it abused the discretion to take disciplinary action, by considerably losing the validity of social norms. (1) As seen earlier, it is difficult to deem that the Plaintiffs’ act recognized as the grounds for disciplinary action, excluding the instant strike participation and defamation part, which cannot serve as the grounds for disciplinary action. The Plaintiffs’ act, which is deemed as the grounds for disciplinary action, is unreasonable. In so doing, it is difficult to deem that the degree of misconduct is heavy. In the case of the Plaintiffs’ interference with the board of directors, the members were able to take part in the board of directors before the board of directors’ corridor. In the case of the Plaintiff’s interference with the workplace order of the Plaintiff A and B, the Defendant removed the temporary tent installed by the said Plaintiffs on the following day, and the hours during which the Plaintiff A participated in an external event during the working hours

(3) Since 2000, the Defendant issued a disposition of suspension from office only once on the ground of trade union activities. In the case of other cases similar to the Plaintiffs’ acts recognized as grounds for disciplinary action, such as reduction of salary or reprimand was subject to minor disciplinary action.

(4) Plaintiff A, B, and D were not subject to a prior disciplinary measure, and Plaintiff A, B, and C were given a large number of official commendationss or prizes.

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal, or by misapprehending the legal doctrine on the determination of disciplinary action

4. The Defendant’s appeal is dismissed as it is without merit. 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.

Justices Kim Chang-suk

Justices Cho Jong-hee

Justices Kim Jae-hyung

Justices Min Min-young