Plaintiff 1 and one other

The Chairman of the National Labor Relations Commission

National Metal Trade Union and one other (Attorney Kang Dong-woo, Counsel for the plaintiff-appellant)

May 11, 2007

Seoul Administrative Court Decision 2005Guhap35902 decided September 14, 2006

1. The defendant's appeal is dismissed.

2. Of the appeal costs, the part arising between the plaintiffs and the defendant is assessed against the defendant, and the part arising from the supplementary participation is assessed against the defendant.

1. Purport of claim

On October 26, 2005, the National Labor Relations Commission revoked the decision of review made on the case of application for reexamination of unfair labor practice relief between the plaintiffs and the defendant joining the defendant's joining the National Metal Trade Union No. 2005No74.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiffs' claims are dismissed.

1. Quotation of judgment of the first instance;

The court's reasoning concerning this case is as stated in the reasoning of the first instance court's decision in addition to the part added or used by the second instance court's decision as stated in the following (2). Thus, this court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. A portion used for adding or cutting;

A. Following the fifth page of the sixth Chapter, “If a dismissed worker has the right to vote, the number of union members of the intra-company subcontractor is 109, and only 53 of them agree to the above industrial action. Therefore, the above industrial action is not decided with the consent of a majority of union members, and it is not procedurally justifiable.”

(b) by cutting "205." in Part 9, Chapter 12, into "2004."

C. On September 9 through 10, 2004, the Intervenor Union (A) held a pro-con voting on the industrial action of the intra-company subcontractor during the period from September 10, 2004, and immediately thereafter announced that the industrial action was decided at a rate of 51.9% by attending the voting by 53 persons among the total 102 members belonging to 8 cooperative companies (hereinafter “the pro-con voting on the industrial action of this case”).

(d) Forms 14, 5, 17, and 6 shall be followed by:

(A) The legality of the vote on the pros and cons of the instant industrial action

Article 41(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Act”) provides that “Any industrial action by a trade union shall not be conducted unless it is decided with the consent of a majority of the union members by direct, secret, and unsigned ballot by the union members.” The above provision is established in order to promote the autonomous and democratic operation of the trade union and to ensure more careful and more careful in the decision of the union's opinion on the commencement of the industrial action so that workers participating in the industrial action do not suffer any disadvantage in relation to the legitimacy of the industrial action after the fact. Thus, an industrial action violating the above procedure becomes justifiable unless objective circumstances are acknowledged that it cannot follow the procedure (see Supreme Court Decision 9Do4837, Oct. 25, 2001, etc.).

Under the industrial trade union system, collective bargaining can be conducted by means of collective bargaining, large-scale bargaining (a form in which a trade union conducts collective bargaining with an individual employer), and branch bargaining. In the event that an industrial trade union conducts collective bargaining with the individual employer at the same time or conducts collective bargaining with multiple employers at the same place, and in fact conducts collective bargaining with an individual employer at the same time, an industrial action is conducted for the purpose of concluding a collective agreement to be applied to an individual employer-uniting workplace. As such, a trade union becomes the principal agent of an industrial action, and a pro-con voting pursuant to Article 41(1) of the Act is conducted only for each individual company (in the event that such collective bargaining is not deemed to be conducted, even though a majority of the union members of the relevant workplace oppose an industrial action, it may result in the commencement of an industrial action by mutual consent to an industrial action by the majority of the union members belonging to other workplace,

However, from May 21, 2004 at the request of a collaborative company when the metal labor union promoted the initial collective bargaining, the individual bargaining was conducted for each collaborative company from May 21, 2004 at the request of the collaborative company, and the pro-con voting for the industrial action of this case was conducted for all the collaborative companies belonging to the intra-company subcontractor association. Thus, the pro-con voting for the industrial action of this case, which was not conducted for only the partners belonging to the collaborative company, shall be null and void.

(B) For this, the Intervenor Union asserts to the purport that it is justifiable for the Intervenor Union to vote for the unit of intra-company subcontractor because it is an independent entity by dispatching its employees to the direct production process of Hyundai Motor Vehicle, which is the main agent, to perform work in accordance with the direction of Hyundai Motor Vehicle, and to administer and deliver wages to its employees. The dispatch constitutes an illegal dispatch in violation of the Act on the Protection, etc. of Temporary Agency Workers, and the standard of working conditions and wages of its employees are identical.

However, the evidence Nos. 7-9, 10, 11, and 14-1, 2, 17-1 through 13, 17-9, 10-1, 17-1 through 13, 10-1, 10-1, 10-3, and 10-1 through 3 are insufficient to recognize that the collaborative company is merely the intermediate labor manager of the modern automobile or has no independent entity, and there is no other evidence to acknowledge it. Rather, according to the evidence found in the above facts, the collaborative company has a labor contract relationship under the employment relationship with each of its employees, and it can be recognized that it has the independence in personnel, labor, and business management. The Intervenor also requested the collaborative company to separately negotiate. In addition, even if the collaborative company dispatched its employees to the modern automobile, it constitutes an illegal temporary agency in violation of the Act on the Protection, etc. of Temporary Agency Workers, it can be said that it constitutes an employee's collective bargaining obligation.

Therefore, the intervenor's assertion is without merit.

(C) Sub-decisions

따라서, 무효인 이 사건 쟁의행위 찬반투표에 기하여 이루어진 ○○기업과 △△기업에서 진행된 일련의 쟁의행위는 법 제41조 제1항 의 절차에 위반한 것이고, 달리 그 절차를 따를 수 없는 객관적인 사정이 있다는 점을 인정할 증거가 없으므로 정당성이 없다. {뿐만 아니라 설령 피고 및 참가인들의 주장과 같이 사내하청지회 단위로 쟁의행위에 대한 찬반투표를 할 수 있고, 해고된 근로자들도 조합원으로서 투표권이 있다고 하더라도, 을 제5, 7, 8호증의 각 기재에 변론 전체의 취지를 종합하면, 이 사건 쟁의행위 찬반투표 당시 사내하청지회의 조합원은 ■■기업 14명, ◎◎기업 15명, □□기업 18명(그 중 소외 1(대법원판결의 소외인)은 2004. 1. 8. 사직서를 제출한 것으로 보인다), ○○기업 17명(선거인명부에는 19명이나 이 중 소외 2, 3은 해고된 근로자이다), △△기업 24명(선거인명부에는 25명이나 이 중 소외 4는 해고된 근로자들이다) ●●기업 5명(선거인명부에는 8명이나 이 중 소외 5, 6, 7은 해고된 근로자들이다), ▽▽기전 2명(선거인명부에는 3명이나 이 중 소외 8은 해고된 근로자이다), 해고근로자 14명(해고근로자 명단에는 15명이나 이 중 소외 9는 해고되지 않았고 △△기업의 선거인명부에 있어 제외한다) 등 총 109명(또는 소외 1을 제외하면 108명)인 사실을 인정할 수 있고, 한편 이 사건 쟁의행위 찬반투표에 사내하청지회의 조합원 63명이 참석하여 그 중 53명이 찬성한 사실은 당사자 사이에 다툼이 없다. 그렇다면 이 사건 쟁의행위는 사내하청지회 조합원 과반수의 찬성으로 결정된 것이 아니므로, 법 제41조 제1항 을 위반하여 그 절차의 정당성이 없다. 따라서, 피고와 참가인들의 주장은 어느 모로 보나 이유 없다.}“

3. Conclusion

Therefore, the judgment of the first instance court is just in its conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Choi Jin-hun (Presiding Judge)