National Transport Loading and Unloading Trade Union (Law Firm Busan, Attorney Jeong Jae-sung, Counsel for defendant-appellant)

New Line Container Terminal (Law Firm International Law, Attorneys Kim Jin-young et al., Counsel for the defendant-appellant)

December 10, 2003

Busan District Court Decision 200Gahap6257 Delivered on June 13, 2003

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed;

2. The plaintiff's appeal is dismissed.

3. The costs of lawsuit shall be borne by all the plaintiffs of the first and second instances.

1. Purport of claim

(1) The defendant shall not refuse collective bargaining with the plaintiff (1) all the matters to guarantee trade union activities.

B. The defendant shall pay to the plaintiff 10 million won with 25% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

A. The plaintiff

Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money to be paid below shall be revoked. The defendant shall pay to the plaintiff 48,000,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day after complete payment is complete (Although the court of first instance rendered a judgment against the plaintiff with respect to the claim stated in (a) claim against the plaintiff, but the court of first instance did not file an appeal against the plaintiff as to the part against the plaintiff, the part shall not be included

B. Defendant

The same shall apply to the order.

1. Basic facts

The following facts may be recognized in full view of each statement in Gap evidence 1 through 4 (including paper numbers), Eul evidence 9 through 12 (including paper numbers), Eul evidence 2 through 5, Eul evidence 9, Eul evidence 12, Eul evidence 13, Eul evidence 15-1, Eul evidence 15-2, Eul evidence 17 through 22 (including paper numbers), and the whole purport of the oral argument in the first instance court's testimony for a witness leap-ho, right hossis, and right hossis agreement (excluding the part rejected after the testimony of the above lehoshosho), and some testimony of the above leaphoshoshos that are contrary to this, shall not be trusted, nor shall there be any counter-proof otherwise.

A. The Plaintiff is a union that received a report on establishment on March 2, 1999 and received a certificate of report on establishment on the 3th of the same month following the following day, and is a nationwide unit trade union organized by employees engaged in cargo transport and harbor loading and unloading industries. The Defendant Company is a company that has operated loading and unloading of container cargo, transportation, etc. since its establishment on June 26, 1990 in order to manage and operate a new charter wharf, which is an exclusive container wharf constructed through the third stage development project of the Busan Port.

B. Meanwhile, the Busan Port Trade Union (hereinafter referred to as "port union") was established on December 1, 1980 under the name of "the Busan Port Trade Union Branch" as the unit trade union of each region and occupation whose name was changed from April 23, 1997 to the date of the establishment of the defendant company as the unit trade union of each region and occupation whose name was changed from December 1, 1980, with the organization of workers engaged in the ports, railroads, land, and agricultural and fishery products, transportation, storage, incidental business or other business in Busan Port Trade Union (hereinafter referred to as "port union"). Since the establishment of the defendant company as the unit trade union of each region and occupation, the new line liaison office is not with independent rules and executive agencies, and the appointment and dismissal of the head of contact office is also subject to the resolution of the Korea Port Union Personnel Committee, and the representative of the defendant company's collective bargaining and labor-management council is the chairperson of the port union established from early 19 to 200,000 members of the port trade union of 20.3.

C. However, as workers belonging to the defendant company, such as the non-party Kim Young-soo, left the port union and joined the plaintiff union on December 9, 1999, the plaintiff union notified the defendant company of the establishment of the above Kim Young-chul branch of the defendant company as the head of the non-party Kim Young-chul branch, and the plaintiff union of the non-party 2 as the head of the site department of the non-party 1's new container branch of the plaintiff union, and requested the defendant company to respond to collective bargaining with the plaintiff union several times from December 13 to January 7, 200, but the defendant company was organized within the defendant company, so the defendant company is not a representative party, so it cannot be acknowledged that the plaintiff union's new provision of Article 5 (1) of the former Labor Union and Labor Relations Adjustment Act (amended by Act No. 6456 of Mar. 28, 201) was rejected by the plaintiff union's amendment of the above provision of Article 5 (1) of the same Act.

D. Accordingly, on January 8, 200, the plaintiff filed an application against the defendant company for the injunction against the refusal of collective bargaining against the defendant company as Busan District Court 2000Kahap533, the purport of which is the claim(a). On January 10 of the same year, the plaintiff filed an application for labor dispute mediation with the Busan Regional Labor Relations Commission on January 10 of the same year. On January 20 of the same year, the Busan Regional Labor Relations Commission decided on January 20 of the same year that it cannot be deemed that the labor dispute occurred in the defendant company, and decided that the strike is not subject to mediation, and the strike was decided with the consent of 257 members participating in voting from January 20 to 25 of the same year, but reserved the strike until the decision of the above application case.

E. On February 11 of the same year, Busan District Court for the following reasons: ① “Where a trade union is organized at a single business or workplace” under Article 5(1) of the Addenda to the Labor Union and Labor Relations Adjustment Act refers to the case where the unit trade union is established by each business or workplace, or where the branch or chapter of the primary business, occupation, and regional unit trade union is an independent organization with independent rules and executive organs, and it is reasonable to view that the establishment of a single company unit trade union can be seen as equivalent to the unit trade union of each business because it has the capacity to independently conduct collective bargaining and sign collective agreements with respect to the unique matters of the organization or its members; ② the new line liaison office of the air transport union established within the defendant company is not a single company unit trade union, which is established within the defendant company, and thus, it is not desirable for the defendant company to refuse to establish a single collective bargaining and sign collective bargaining and sign collective agreements with its own rules and executive organs, and thus, it cannot be said that it is necessary for the defendant company to refuse to adopt a single collective bargaining agreement or sign collective agreements.

F. The defendant company filed an objection to the above provisional disposition order as Busan District Court 2000Kahap468, which was the date of the above provisional disposition order, and requested the plaintiff union to hold collective bargaining based on the above provisional disposition to hold consultation and mediation on the simplification of the port unions and bargaining windows prior to collective bargaining. However, the plaintiff union decided from February 25, 2000 to strike from April 30 of the same year on the ground that the defendant company refused collective bargaining with the plaintiff union by doping the simplification of bargaining windows.

G. Meanwhile, the number of employees of the Plaintiff Company, who were members of the Plaintiff Company, was 325 persons as of December 20, 199, but the number of employees of the Plaintiff Company, who were members of the Plaintiff Company, was 325 persons as of July 20, 199, and 15 million remaining as of July 200, and thereafter, the number of members of the Plaintiff Company had been 150,000 remaining as of July 200, and at the latest before July 2002, one member of the Plaintiff Company did not remain. (The employees of the Plaintiff Company, who were members of the Plaintiff Company, who were members of the Plaintiff Company, were already members of the Plaintiff Company after withdrawal of the Plaintiff Company before July 18, 202, and were members of the Plaintiff Company, who were members of the Plaintiff Company, and were members of the Plaintiff Company and the employees of the Plaintiff Company, who were members of the Plaintiff Company after withdrawal of the Plaintiff Company after July 2002. Moreover, there is no evidence to acknowledge that the Plaintiff Company’s revocation of dismissal against Nonparty 2.

2. Plaintiff’s assertion and judgment

(a) Contents of the assertion;

(1) The plaintiff union requested the defendant company to comply with collective bargaining among several times from December 10, 199 to January 7, 200, when the employees belonging to the defendant company, including the above Kim Young-soo, left the port union and joined the plaintiff union, but the defendant company continued to refuse to comply with collective bargaining. Furthermore, on February 11, 2000, the Busan District Court issued a provisional disposition order to the effect that the defendant company should not refuse collective bargaining with the plaintiff union, even though the Busan District Court decided on February 11, 200 that the defendant company should not refuse collective bargaining with the plaintiff union, the defendant company continued to refuse collective bargaining with the plaintiff union with a doping of bargaining windows, thereby violating the above provisional disposition order.

(2) For a period of two months from February 25, 200 to April 30 of the same year, the Plaintiff Union could not be punished for a strike to withdraw the Defendant Company’s refusal of unfair collective bargaining. During that process, the Plaintiff Union suffered not only a loss from non-operating activities in a normal partnership for three years since the strike, but also a loss from social evaluation of the Plaintiff Union for three years since the strike. Furthermore, in order to respond to the Defendant Company’s refusal of unfair collective bargaining, the Plaintiff Union filed several lawsuits including the instant lawsuit, and incurred expenses incurred in responding to various lawsuits filed by the Defendant Company, and paid a living subsidy for its members exceeding KRW 50 million.

(3) All of the above damages were caused by a tort committed in violation of the provisional disposition order to the effect that the defendant company rejected the demand for collective bargaining by the plaintiff company which does not fall under a multiple trade union under the above provision without justifiable grounds, and further ordered the collective bargaining with the plaintiff union. Thus, the defendant company is obligated to pay 50,000,000 won as consolation money for non-property damages suffered by the plaintiff union due to the above tort. (The plaintiff asserts that it does not seek compensation for property damages arising from the payment of litigation costs and living expenses, but does not seek compensation separately for property damages arising from the payment of living expenses, as the grounds for calculating consolation money.)

B. Determination

(1) On December 10, 199 through January 7, 2000, the defendant did not comply with the plaintiff union's request for collective bargaining several times from December 10, 199 to January 7, 200. On February 11, 199, even though Busan District Court rendered a provisional decision prohibiting the plaintiff union from refusing collective bargaining, it was found that the plaintiff union requesting collective bargaining was not in compliance with the above recognition that the plaintiff union did not comply with collective bargaining by requesting a single compromise of bargaining windows through consultation and coordination with the port union.

(2) 그러나, 위 인정사실에 의하더라도, 피고회사는 단체교섭을 요구해오는 원고 조합이 구 노동조합및노동관계조정법 부칙 제5조 제1항에 의하여 2001. 12. 31.까지 그 설립이 금지되는 복수노동조합에 해당한다고 판단하여 원고 조합의 단체교섭요구를 일응 거부하면서도 한편으로는 노동부에 원고 조합이 위 조항 소정의 복수노동조합에 해당하는지 여부에 대한 질의를 하여 그 회신을 기다리면서 원고 조합에게도 그 회신에 맞추어 피고의 최종적인 입장을 밝히겠다는 통보를 함으로써 단체교섭거부 여부에 대한 최종적인 입장을 유보하고 있었는데, 그후 노동부로부터 원고 조합이 위 조항 소정의 복수노동조합에 해당한다는 회신이 오자 이를 원고 조합에 제시하고 위 회신을 근거로 원고 조합의 단체교섭요구에 응하지 아니하였던 것이며, 그후 부산지방법원에서 위 노동부회신과는 달리 원고 조합이 위 조항 소정의 복수노동조합에 해당하지 않는다고 하여 원고 조합과의 단체교섭을 거부하여서는 아니된다는 취지의 가처분결정이 내려지긴 하였으나, 이에 대하여 원고 조합이 이의를 신청함으로써 위 가처분결정의 당부가 확정되지 아니하였던 것인 바{위 가처분이의의 소는 이 사건 소와 병행심리된 끝에 2003. 6. 13. 원고 조합의 패소판결(그 요지는, 위 가처분이의소송 변론종결당시 원고 조합에 가입해 있는 피고회사 근로자가 한 명도 남아 있지 아니하여 피고회사에게 단체교섭을 요구할 자격을 구비하지 못하였다는 것이었다.)이 선고·확정되었다}, 여기에다가 다음과 같은 사정 즉, 피고가 원고 조합과의 단체교섭을 거부하는 근거로 내세운 구 노동조합및노동관계조정법 부칙 제5조 제1항의 시행이후부터 뒤에서 보는 대법원판결 선고시까지 위 조항에 의하여 2001. 12. 31.까지 설립이 금지되는 복수노동조합의 범위를 둘러싸고 다음과 같은 견해들 즉, 기존노동조합과 신설노동조합 모두 하나의 사업 또는 사업장 단위로 조직되는 기업별 단위노동조합이어야 한다는 견해, 단위노동조합, 지부, 분회 등 명칭을 불문하고 하나의 기업내에서 조직대상이 중복되는 복수 노동조합을 설립할 수 없다는 견해, 위 조항에서 말하는 기존 노동조합은 원칙적으로 기업별 단위노동조합에 한정되나, 다만 독립한 근로조건의 결정이 있는 하나의 사업 또는 사업장 소속 근로자를 조직대상으로 한, 초기업적 산업별·직종별·지역별 단위노동조합의 지부 또는 분회로서 독자적인 규약 및 집행기관을 가지고 독립한 단체로서 활동을 하면서 단위노동조합의 위임에 의하지 아니한 독립한 단체교섭권 및 단체협약 체결능력을 가지고 있어서 기업별 단위노동조합에 준하여 볼 수 있는 노동단체도 기존노동조합에 포함된다는 견해가 나뉘어져 논란이 있었던 점(첫번째와 세번째 견해에 따르면 원고 조합은 위 조항에 의하여 설립이 금지되는 복수노동조합에 해당하지 아니하나, 두번째 견해에 따르면 원고 조합은 위 조항에 의하여 설립이 금지되는 복수노동조합에 해당한다.), 그런데 노동부는 위 조항의 시행당시부터 복수노동조합의 범위에 관하여 두번째 견해를 취해 왔고, 그에 따라 피고회사의 질의에 대하여도 원고 조합이 위 조항 소정의 복수노동조합에 해당한다는 취지의 회신을 보낸 점, 한편 위 조항은 2001. 3. 28. 법률 제6456호로 개정되어 2006. 12. 31.까지 복수노동조합의 설립이 금지된 점, 위 가처분이의의 소가 계속중이던 2002. 7. 26. 대법원이, 위 조항에 의하여 설립이 금지되는 복수노동조합의 범위가 주요 쟁점으로 된 2001두5361호 노동조합결의처분시정명령취소 사건에 관하여, 위 조항 소정의 ‘하나의 사업 또는 사업장에 노동조합이 조직되어 있는 경우’는 기업별 단위노동조합이 설립되어 있는 경우를 가리키는 것이고, 다만 위 조항의 입법취지에 비추어 독립한 근로조건의 결정권이 있는 하나의 사업 또는 사업장 소속 근로자를 조직대상으로 한, 초기업적인 산업별·직종별·지역별 단위노동조합의 지부 또는 분회로서 독자적인 규약 및 집행기관을 가지고 독립한 단체로서 활동을 하면서 당해 조직이나 그 조합원에 고유한 사항에 대하여는 독자적으로 단체교섭 및 단체협약체결능력을 가지고 있어 기업별 단위노동조합에 준하여 볼 수 있는 경우도 포함된다는 취지의 판결을 선고함으로써 그간에 논란이 되었던 위 조항 소정의 복수노동조합의 범위를 명확히 하였던 점, 그런데 위 대법원판결이 선고될 당시 피고회사의 근로자들 중 원고 조합의 조합원은 한 명도 남지 아니하여 원고 조합으로서는 피고회사에 대하여 단체교섭을 요구할 수 있는 자격요건을 구비하지 못한 점(위 대법원판결이 선고된 후에도 원고 조합에 가입해 있는 피고회사 근로자가 있다는 점에 관하여는 이를 인정할 증거가 없음은 앞서 본 바와 같다)등을 종합해 볼 때, 피고회사가 위 (1)항 기재와 같이 원고 조합의 단체교섭요구에 응하지 아니한 것을 가리켜 민법 제750조 소정의 불법행위에 해당한다고 보기는 어렵다 할 것이고, 달리 피고의 위 행위가 불법행위에 해당한다고 볼만한 아무런 증거가 없으므로, 원고의 위 주장은 더 나아가 살필 필요없이 이유없다.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed because it is without merit. Since the judgment of the court of first instance is unfair with some different conclusions, the part against the defendant in the judgment of first instance which accepted the defendant's appeal and dismissed the plaintiff's claim corresponding to the revoked part, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-sik (Presiding Judge)