2012Guhap21062 Revocation of the Tribunal for Remedy for Unfair Labor Practice

Samsung Inland Co., Ltd.

Jung-gu Seoul Metropolitan Government Class 67 (Mai-ro 2 A)

Representative Director Kim Jong-young

A&S Law Firm (Law Firm A&S)

Attorney Cho Young-ro, Choi Jin-jin, Maho-young

The Chairman of the National Labor Relations Commission

The number of paths, the Do account, and the radio exchange of the litigation performer;

Samsung Trade Union

Yeongdeungpo-gu Seoul Metropolitan Government 3 8 Seoul Metropolitan Government 213

Representative Park ○○○

Attorney Ba-so, Counsel for the defendant-appellant-appellee

September 12, 2013

October 10, 2013

1. The plaintiff's claim is dismissed.

2. The costs of litigation shall be borne by the Plaintiff, including the part arising from the Defendant’s participation.

The National Labor Relations Commission on May 22, 2012 between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”).

Central 2012No92.8.2011.8.

26.The 27th day of the same month and the 27th day of the same month as an unfair labor practice by controlling and intervening.

of this section shall be revoked.

1. Details of the decision on retrial;

A. The Plaintiff is a corporation that employs 4,400 regular workers as an affiliate of Samsung Group and operates an Ebberland Lbret (hereinafter “Ebreland”). The Intervenor is a national unit trade union established for the organization of Samsung Group and its affiliates employees.

B. On November 24, 2011, the Intervenor filed an application for remedy for unfair labor practices by asserting that the Plaintiff’s restriction on the distribution of printed materials to the Gyeonggi Regional Labor Relations Commission on August 26, 2011 and on August 27, 2011 constituted unfair labor practices by control and intervention, and the Gyeonggi Regional Labor Relations Commission January 201.

18. The Intervenor did not accept the Intervenor’s petition.

C. On March 2, 2012, the Intervenor dissatisfied with the initial trial tribunal and filed an application for review of unfair labor practice with the National Labor Relations Commission. On May 22, 2012, the National Labor Relations Commission received the Intervenor’s application for review on the ground that the Plaintiff’s above act was an unfair labor practice through control and intervention. (hereinafter “instant review decision”).

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 4, the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

The participant's prior to the White Security Office, the place prior to the security room in which the intervenor distributed the printed materials, etc. is limited to the access of the general public, and the participant's members who distributed the printed materials were dismissed or temporarily dismissed, and therefore there is no authority to enter the workplace at will without the permission of the plaintiff.

The Intervenor’s distribution of printed materials was conducted against the employees of the Plaintiff Company who were working without undergoing the permission procedures set forth in the rules of employment in the procedure and method. The content includes expressions that undermine the Plaintiff’s reputation. Therefore, the Intervenor’s distribution of printed materials deviates from the scope of legitimate partnership activities, and the Plaintiff’s act is not an unfair labor practice by control and intervention as a legitimate exercise of the right to manage facilities. Furthermore, it cannot be deemed that the Plaintiff intended to engage in unfair labor practice because it was merely the removal of printed materials by the guard staff, etc. as a daily order maintenance activity. On different premise, the instant re-adjudication decision was unlawful.

B. Relevant provisions

Article 2 (Definition of Trade Union and Labor Relations Adjustment Act)

The definitions of terms used in this Act shall be as follows:

4. The term "trade union" means an organization or associated organization of workers, which is organized as their principal body and independently and with the objective of maintaining and improving working conditions and enhancing the economic and social status of workers, or of promoting the improvement of their social status;

Provided, That it shall not be deemed a trade union in any of the following cases:

(d) Where joining a person other than a worker is permitted: Provided, That where the dismissed person has requested the Labor Relations Commission to remedy unfair labor practices, it shall not be interpreted as a person other than the worker until the Central Labor Relations Commission has made a decision on review;

Article 81 (Unfair Labor Practices)

An employer shall not engage in any of the following acts (hereinafter referred to as "unfair labor practices"):

4. Domination of or interference in the organization and operation of a trade union by workers, and payment of wages to the full-time employee of a trade union or assistance in the operation of a trade union: Provided, That it may be unreasonable for an employer to allow an employee to consult or negotiate with the employer during working hours, and it shall be an exception that the employer contributes funds for the welfare of workers, or for the prevention, relief, etc. of and relief from any economic inequality or other disasters, and

Rules of Employment

Article 42 (Service Regulations) Members shall strictly observe the matters falling under any of the following subparagraphs in carrying out their duties:

5. He/she shall not, without permission of the company, engage in any conduct disturbing the order of the workplace, such as selling and distributing printed articles, placards, posting posters, etc. in the company.

13. During working hours without permission of the company (including cases where break time causes inconvenience to rest of other workers), the company shall not hold any assembly, demonstration, broadcast, speech, or other work irrelevant to work. Article 45 (Suspension of Entry and Leave, and Order to Leave)

Where a member falls under any of the following subparagraphs, a member shall be prohibited from entering the register and may be ordered to leave the register when he/she is found:

1. Where he/she performs or attempts a tombstone, poster, assembly or demonstration campaign without permission from the company;

(c) Fact of recognition;

1) On July 13, 2011, the Intervenor Labor Union reported the establishment of a trade union to the Seoul Southern District Office of the Seoul Regional Employment and Labor Agency, and was issued a certificate of report on the establishment of the trade union on the 18th day of the same month. The Intervenor Labor Union website (www. sagrouped workers kr.) is classified into non-business sites, and access is obstructed from the Plaintiff’s intra-corporate computer network. The Intervenor Labor Union ○○○ on July 7, 2011.

27. Through the intra-company computer network, Plaintiff’s employees sent e-mail such as informing Plaintiff company employees of the establishment of an intervenor labor union. The Plaintiff deleted the above e-mail on the ground that it used the intra-company computer network for non-business use.

2) The Intervenor’s ○○○○○○○○○○, a partner0, and Kim○○ was all Plaintiff’s workers from August 201 to October 31 of the same year. The Vice ○○○○ (hereinafter referred to as “○○○, etc.”) was the Plaintiff’s worker, but was subject to disciplinary dismissal on July 18, 201, and applied for remedy against the Plaintiff’s unfair dismissal, etc. to the Gyeonggi Regional Labor Relations Commission on August 30, 201. The Gyeonggi Regional Labor Relations Commission rejected the Plaintiff’s application for remedy, such as removal of the Plaintiff’s ○○○○○’s Gabbbox from the Plaintiff’s Gabbbbox, and then dismissed the Plaintiff’s request for review on the instant Gabox’s Gabbbox 201, which was subject to the Defendant’s inducement of employees from the Plaintiff’s Gaban’s Gaban’s workplace, and then dismissed the Plaintiff’s request for review on the instant Gabol 201.

4) On August 27, 201, 201: 10: From 30 to 10, 00, ○○ et al. distributed the instant printed materials to employees in front of the entrance of the entrance to the entrance to the front of the entrance to the front of the entrance to the front of the entrance to the front of the entrance to the front of the front of the entrance to the front of the front of the front of the front of the entrance to the front of the front of the front of the front of the front of the front of the entrance to the front of the front of the front of the front of the front of the entrance to the front of the front of the front of the entrance to the front of the front of the entrance to the front of the 6th century. However, the Plaintiff’s employees in charge of managing the front of the front of the front of the entrance to the front of the entrance to the front of the front of the entrance to the front of the front of the front of the entrance to the front of the front of the front of the front of the entrance to the front of the front of the front.

7) On March 1, 2011, the Plaintiff entered into a security contract with Stex Services Co., Ltd. (hereinafter “Stex”) under which it entrusts security services, such as the protection of customers at the place of business, including Burland, the eradication in the event of an illegal act, and the control of the number of visitors.

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, 5 through 7, 9, 10, 12, 18, 19, Eul evidence 1, Eul evidence 5, 7 through 10, Eul evidence 12 through 14, 22, 24, 26, 27, 28, 28, 31, 32, and 37, testimony of witness Kim Ma Ma*, result of on-site inspection of this court, purport of whole pleadings.

D. Determination

Considering the following circumstances revealed from the facts acknowledged as above and the evidence and the purport of the entire pleading, the Intervenor’s act of distributing printed materials in this case ought to be deemed as lawful trade union activity. As such, the Plaintiff’s act of preventing or obstructing this act constitutes unfair labor practice. 1) Even if it was deemed that the Plaintiff was under childcare leave at the time of distributing printed materials, the Intervenor’s membership status and the Plaintiff’s employee status were maintained. ○○, 00, and ○○○○ was maintained. Although the Defendant was dismissed from the Plaintiff prior to the distribution of printed materials, the Plaintiff was subject to dismissal from the Plaintiff prior to the distribution of printed materials, but August 201.

30. In light of the purport of the proviso of Article 2 subparag. 4(d) of the Trade Union and Labor Relations Adjustment Act, since the Gyeonggi Regional Labor Relations Commission made an application for remedy, such as unfair dismissal, it is difficult to view that the status of ○○ employee at the time of the distribution of the instant printed materials was lost, and the Intervenor’s labor union is not a company-level trade union, and thus, a subordinate relationship to a certain employer is not naturally required as a member’s qualification. Accordingly, ○○, etc. may become the subject of the distribution of printed materials conducted by the Intervenor’s labor

2) Prior to the White Security Office, the Defendant’s right to manage facilities should not be infringed in conducting labor union activities at the same place as it constitutes an incidental facility for the Plaintiff’s workplace or business. However, distribution of printed materials is merely temporary or temporary acts and it is difficult to deem that the Plaintiff’s employees infringe on the Plaintiff’s physical facilities unlike the act of assembly or posting poster. Moreover, each place where printed materials are distributed is not a place where the Plaintiff’s employees work, but a place where the Plaintiff’s employees work to commute to and from work and rest, and the Plaintiff’s access to the facility is limited. Therefore, it seems that the Plaintiff’s right to manage facilities by distribution of printed materials in this case was not significantly infringed. On the other hand, since the time when printed materials were distributed in this case, it was difficult to find out the Plaintiff’s right to manage facilities by means of the Intervenor’s online network that was distributed to the Intervenor’s employees outside of the Plaintiff’s labor union due to the nature of the Plaintiff’s business hours.

4) The Intervenor appears to have not gone through the permission procedure under the Plaintiff’s rules of employment when distributing the instant printed materials. However, even if the rules of employment provide for permission for the distribution of printed materials, the legitimate activities of a trade union cannot be arbitrarily denied by the employer. Thus, whether the distribution is legitimate or not cannot be determined with the mere determination as to whether the act of distribution is permissible.

5) The front of the White Security Office is a place where the employees belonging to the Plaintiff move to and from work or provide meals at the employees restaurant within the White Security Office. The front and the regular bus riding room in front of the security room is a place waiting for the employees to get out of and work for commuting buses. The glurgs, etc. appear to have distributed the instant printed matter by selecting the starting time of the employee’s commuting to and from work. Accordingly, it is difficult to view that the employees subject to the instant printed matter distribution as being the subject of the instant printed matter distribution to have retired from work or worked for at least a rest of time.

6) The contents of the instant printed matter include a somewhat stimulous, exaggerated, and distorted expression, even if it is proven that the Plaintiff’s employees prove bad faith. “The Defendant dismissed the Intervenor’s Vice-Chairperson, is attracting ...” The Defendant’s distribution of printed matter constitutes a legitimate trade union activity if the purpose of distribution of printed matter is true as it is to promote the improvement of workers’ status, such as the maintenance and improvement of working conditions. However, the main contents of the instant printed matter is to inform the Plaintiff employees of the need to establish the Intervenor’s labor union and to publicize the Intervenor’s labor union’s labor union in order to improve the Intervenor’s status, and to comprehensively consider the content of the printed matter’s distribution of printed matters falls under the scope of legitimate trade union activity.

7) In light of the fact that: (a) Park○, etc. distributed the instant printed materials on August 26, 201; (b) reported to the Plaintiff’s Vice-President in charge of personnel management, Kim MaMa and MaMa, and was left in Kim Ma and Kim MaMa, Kim Ma.; and (c) Kim MaMa, Kim Ma and Park ○, etc. wearing a bucker indicating the phrase “ Samsung Trade Union”, when considering the fact that Park ○, etc. was carrying out the instant printed materials, Kim Ma and Ma appears to have sufficiently known that the distribution of the instant printed materials by Park○, etc. was not merely miscellaneous or external public relations activities of the participants, but also public relations activities of the Intervenor’s labor union; and (c) Etex employees, etc., who were in front of the instant back-up security room, were demanded to not distribute printed materials to Park○, etc.; and (d) obtained the instant printed materials by inducing or collecting them back, or coordinating the said employees.

In light of the fact that the employee was prevented from having contact with ○○○, etc. by means of blocking the distribution of the instant printed materials by way of blocking the distribution of the printed materials with ○○, etc., and the Plaintiff could have sufficiently known that the distribution of the instant printed materials was the activity of the Intervenor’s union during a considerable period of time, the Plaintiff continued to interfere with and restrain the distribution of the printed materials. In light of the fact that the Plaintiff continued to engage in the act of obstructing the distribution of the printed materials, it is determined that the Plaintiff had the intent to engage in unfair labor practices at the time of preventing the Intervenor’

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges anti-competence

Justices Kim Jin-jin

Judges Kim Jong-hwan