[1] Method of determining whether an employer’s act constitutes an unfair labor practice and the burden of proving such act (=worker or trade union)

[2] The case holding that it does not constitute an unfair labor practice on the ground that an action of dismissal against a worker who was sentenced to suspended sentence due to drinking or unlicensed driving is illegal, but it is insufficient to prove that such action was caused by the employer's intent

[1] Whether an employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act shall be comprehensively examined and determined by comprehensively examining all the circumstances that can presume the existence of an employer’s intent to engage in unfair labor practice. Since the burden of proof of unfair labor practice lies in an employee or a trade union asserting it, where it is not clear whether an employer intended to engage in unfair labor practice exists even after conducting a necessary deliberation and it is impossible to determine the existence thereof, the risks or disadvantages arising therefrom shall be borne by the employee or the trade union asserting it. In this regard, if an employer took unfavorable measures, such as disciplinary action, dismissal, etc. against a worker, but it was revealed that there was a justifiable reason as a result of deliberation, it cannot be readily concluded that such unfavorable measure was taken against the intent to engage in unfair labor practice.

[2] The case holding that it does not constitute an unfair labor practice since it is difficult to view that an action of dismissal against a worker who has been suspended from the suspension of execution due to drinking or unlicensed driving constitutes a case where an employee is responsible to the extent that it is impossible to continue the employment relationship by social norms, and there is no justifiable reason, but it is unlawful, but it is not sufficient to prove

[1] Article 81 of the Trade Union and Labor Relations Adjustment Act, Article 30(1) of the Labor Standards Act, Article 26 of the Administrative Litigation Act / [2] Article 81 of the Trade Union and Labor Relations Adjustment Act, Article 30(1) of the Labor Standards Act

[1] Supreme Court Decision 98Da54960 delivered on June 23, 2000 (Gong2000Ha, 1729) Supreme Court Decision 2003Du8876 delivered on February 13, 2004, Supreme Court Decision 2003Du5600 Delivered on June 15, 2006

Plaintiff (Law Firm citizen, Attorneys Kang Young-soo et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Crocheon Agricultural Cooperatives (Law Firm Pacific, Attorneys Song Jin-hun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Nu11826 delivered on April 7, 2005

Each appeal is dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. Judgment on the disposition of suspension from office of this case

A. Examining the reasoning of the judgment below in light of the records, the court below is justified in holding that the two-month disciplinary action against the suspension from office of this case was justified on the grounds as stated in the judgment below. In this regard, the court below did not err in the misapprehension of the rules of evidence and the misapprehension of legal principles

B. Whether an employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act shall be comprehensively examined and determined by comprehensively examining all the circumstances to presume the existence of an employer’s intent to engage in unfair labor practice. Since the burden of proving unfair labor practice is against an employee or a trade union who asserts it, if it is unclear whether an employer intended to engage in unfair labor practice exists even after conducting a necessary deliberation, and it is impossible to determine its existence, the resulting risk or disadvantage shall be borne by the employee or the trade union that made the assertion. In this regard, in a case where an employer took unfavorable measures, such as disciplinary action, dismissal, etc. against a worker, and where it is found that there is a justifiable reason as a result of deliberation, it is difficult to readily conclude that such unfavorable measure was taken against the intent to engage in unfair labor practice.

Examining the reasoning of the judgment below in light of the above legal principles and records, although the court below was somewhat different, the judgment of the court below was not sufficient to recognize that the two-month disciplinary action against the defendant assistant was taken based on the defendant assistant's intent to act as an associate labor. Such fact-finding belongs to the exclusive authority of the court below, which is the fact-finding court, and it cannot be deemed as an unlawful violation of the principle of free evaluation of evidence. The judgment below is justified in its conclusion. There is no violation of the rules of evidence and misapprehension of the legal principles

The Plaintiff’s ground of appeal on this part is rejected.

2. Judgment on the disposition of dismissal of this case

A. Reviewing the reasoning of the judgment below in light of the records, it is justifiable to determine that the disposition of dismissal in this case has no justifiable grounds because the reason that the plaintiff was sentenced to a suspended sentence of imprisonment due to the violation of the Road Traffic Act of drinking and without a license and that the judgment became final and conclusive is not a case where an employee is responsible to the extent that the employment relationship cannot be continued by social norms (the purport that the intervenor joining the defendant sets the grounds for the suspended sentence, which is the grounds for disqualification for appointment, as the principle, and the case is excluded from the case of traffic accidents, is not substantial in social criticism in today's case where the plaintiff is under suspended sentence due to normal driving and negligence, and it seems that it is possible to deal with the accident due to insurance processing. Therefore, if the plaintiff was under suspended sentence on the ground that he intentionally and repeatedly drives without a license as the plaintiff intentionally, it shall be deemed to fall under the grounds for dismissal, and it is not proper to dismiss the defendant's remaining grounds for appeal, except for the above reasons for dismissal, which affected the conclusion of the judgment below.

B. Examining the reasoning of the judgment below in light of the records, it seems insufficient to prove that the dismissal disposition of this case against the plaintiff by the defendant assistant intervenor was due to the intent of the non-working act. However, although the court below rejected the plaintiff's appeal against the part of the judgment of the court of first instance that rejected the plaintiff's claim that the dismissal disposition of this case constitutes unfair labor act, it did not clearly state the reason, the court below's decision rejecting the claim that the dismissal disposition of this case constitutes unfair labor act is erroneous, and there is no error of law that affected the conclusion of the judgment. The plaintiff's ground of appeal

3. Conclusion

Therefore, each appeal is dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)