Whether an industrial action in violation of the procedure under Article 41(1) of the Trade Union and Labor Relations Adjustment Act, which requires a consent decision by a majority of the union members by direct, secret, and unsigned ballot, is justifiable (affirmative in principle), and whether the legitimacy of the industrial action is invalidated solely on the ground that the vote by union members against the industrial action is conducted without going through the mediation procedure of the Labor Relations Commission as provided in Article 45 of the same Act (negative)

Article 41(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides for promoting the autonomous and democratic operation of a trade union when a trade union conducts an industrial action by direct, secret, and unsigned consent of a majority of its union members, as well as for ensuring more careful and more careful decision-making of the trade 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 in violation of the above procedure becomes justifiable unless objective circumstances are acknowledged that it cannot follow the procedure.

However, it is difficult to view that the legitimacy of the industrial action is lost merely because the pro-con voting for the industrial action is conducted without going through the mediation procedure of the Labor Relations Commission as stipulated in Article 45 of the Trade Union Act.

Articles 41(1) and 45 of the Trade Union and Labor Relations Adjustment Act

Supreme Court en banc Decision 99Do4837 delivered on October 25, 2001 (Gong2001Ha, 2624)

Korea Railroad Corporation (Law Firm LLC, Attorneys Cho Yong-han et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Attached List of Intervenor joining the Defendant is as shown in the List of Intervenor joining the Defendant (Law Firm Woo, Attorneys Hy-de et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2017Nu71958 decided April 10, 2019

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

The grounds of appeal are examined.

1. Ground of appeal No. 1

The lower court determined that: (a) the wage agenda, such as wage negotiations in 2013, is one of the primary purposes of the secondary strike; and (b) there are circumstances to deem that pending issues, such as disciplinary action, compensation for damages, withdrawal of provisional seizure against railroad union members, withdrawal of circular transfer and opposition against one-person working on board, etc., are included in the secondary strike purposes; (c) however, if excluded, it is not recognized that the case did not reach the secondary strike, the legitimacy of the objectives of the secondary strike cannot be denied.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on the legitimacy of the purpose of industrial action, as alleged in the grounds of appeal.

2. The second ground for appeal

(a) Whether the second strike has been carried out without going through the vote for and against union members;

The lower court determined that, in full view of the series of processes from the proposal of the wage agreement in 2013-2013 to which an agreement on wages was concluded through cooperative members’ vote and secondary strike, it was reasonable to view that there was a cooperative member vote on the secondary strike since it had been in a state of labor dispute due to disagreement between the Plaintiff and the union members with respect to the wage negotiations in 2013, and one of the primary purposes of the secondary strike was also a wage negotiation in 2013, and thus, there was a cooperative member vote on the secondary strike.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine regarding the procedure for industrial action, as otherwise alleged in the grounds of appeal.

B. Whether there were errors during the voting period for supporting and opposing votes

1) Article 41(1) of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) provides for promoting the autonomous and democratic operation of a trade union when a trade union conducts an industrial action by means of a majority’s direct, secret, and secret ballot, as well as for ensuring more careful and more careful decision-making of the trade union regarding the commencement of the industrial action so that the participating workers in the industrial action do not suffer any disadvantage in relation to the legitimacy of the industrial action after the industrial action. Thus, the industrial action violating the above procedure becomes justifiable unless objective circumstances are acknowledged that the industrial action would not follow the procedure (see, e.g., Supreme Court en banc Decision 9Do4837, Oct. 25, 2001).

However, it is difficult to view the legitimacy of the industrial action as follows solely on the fact that the pro-con voting for the industrial action by union members was conducted without going through the mediation procedure of the Labor Relations Commission as stipulated in Article 45 of the Trade Union Act.

A) Article 41(1) of the Trade Union Act limits an industrial action by vote against union members (see, e.g., Article 41(1)), but does not stipulate any provision that limits the timing of voting against union members for and against industrial action. A trade union is an independent and collective organization against the State and an employer for the purpose of “maintenance and improvement of working conditions and improvement of workers’ economic and social status,” and thus guarantees autonomy from the State, the employer, etc. (see, e.g., Constitutional Court en banc Decision 2013Hun-Ma671, 2014Hun-Ga21, May 28, 2015). Thus, a trade union’s independent decision conforms to the purpose of guaranteeing three labor rights under the Constitution, barring any special circumstance, such as that the timing of voting against union members for and against industrial action is limited by Act.

B) The purport of Article 45 of the Trade Union Act, which provides a pre-resolution of an industrial action, is not to prohibit an industrial action itself from seeking an opportunity to avoid the occurrence of an industrial action by mediating disputes in advance. Thus, even if an industrial action did not go through the procedure under the pre-resolution of mediation, it does not constitute an industrial action lacking justification (see, e.g., Supreme Court Decision 9Do4812, Oct. 13, 2000). In light of the content and purport of Article 45 of the Trade Union Act, in view of the content and purport of Article 45 of the same Act, the legitimacy of the industrial action is not determined on the basis of whether the industrial action was conducted through the procedure for conciliation of a labor dispute at the time when the union

2) In the same purport, the lower court determined that the legitimacy of the second strike cannot be denied solely on the ground that the pro-con voting by union members that was held after the labor dispute reached the status was held before the mediation procedure of the National Labor Relations Commission is completed. In so determining, the lower court did not err by misapprehending the legal doctrine on the procedural legitimacy of the industrial action

The Supreme Court decision cited in the ground of appeal in this part is related to the case where the vote against and against the Plaintiff was taken without reaching a labor dispute, and it is inappropriate to invoke the other case.

3. Ground of appeal No. 3

The lower court determined as follows: (a) on the ground that the grounds for disciplinary action against the Intervenor’s Intervenor 36’s “joint assault by the head of the office of search and seizure vehicle” did not violate social rules, or there is no evidence that the Intervenor was responsible for the said Intervenor, the lower court did not constitute justifiable grounds for disciplinary action on the grounds that it is difficult to evaluate the Intervenor 4’s “Unauthorized occupation of the head of Seoul headquarters” as infringing the Plaintiff’s right to manage the facilities or impeding the organizational order; and (b) on the part of the Intervenor 17, even though some of the grounds for disciplinary action are recognized as grounds for disciplinary action, the lower court determined that the Intervenor’s act of taking the most severe disciplinary action against the Intervenor 17 is against

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding grounds for disciplinary action and disciplinary action, or by exceeding the bounds of the free evaluation of evidence against logical and empirical rules.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

[Separate] List of Intervenors joining the Defendant: Omitted

Justices Park Sang-ok (Presiding Justice)