Plaintiff (Attorney Park Jae-ju et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Intervenor joining the Defendant (Law Firm Bah, Attorney Kim Kim g-m, Counsel for defendant-appellant)

October 4, 2007

Seoul Administrative Court Decision 2006Guhap1203 Decided March 22, 2007

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court is revoked. On December 20, 2005, the Central Labor Relations Commission revoked the decision of the first instance on the case where the application for reexamination of unfair labor practices was filed between the Plaintiff and the Intervenor joining the Defendant (hereinafter “ Intervenor”) on December 20, 2005.

1. Details of the decision on retrial;

A. The intervenor is a company that employs 230 workers in Yangcheon-gu Seoul Metropolitan Government (number omitted) and operates a sports newspaper publishing business by employing 230 workers. The plaintiff is a mountain union consisting of 16,000 members.

B. On December 1, 2004, the intervenor was dismissed on December 1, 2004 (hereinafter “instant dismissal”) against the non-party workers and 13 other than the non-party workers, who are the members of the ○○○○○○ branch of the Korea Press Workers’ Union, the Plaintiff’s branch.

C. On June 3, 2005, the dismissal of the non-party workers and 13 workers, including the above non-party, claimed that the dismissal of the non-party workers in this case constitutes unfair dismissal and unfair labor practices. The dismissal of the plaintiff in this case was defective on December 27, 2004, asserting that the dismissal of the non-party in this case constitutes unfair dismissal and unfair labor practices against the union, and Seoul Regional Labor Relations Commission rejected the application for remedy from dismissal in this case on April 25, 2005, which recognized that the dismissal in this case was unfair dismissal, and decided to dismiss the application for remedy from unfair labor practices. The plaintiff and the dismissed the application for remedy from the dismissal in this case on June 3, 2005, the non-party worker in this case rejected the application for remedy from the above dismissal in this case on May 31, 2005, and dismissed the application for remedy from the dismissal of the non-party in this case and the non-party worker in this case on April 26, 2005.

[Ground of recognition] Facts without dispute, entry of Gap 1 and 14 evidence, purport of the whole pleadings

2. Whether the decision on retrial is lawful.

A. The plaintiff's assertion

Even if the management status of the intervenor has deteriorated to some extent, in light of the fact that the intervenor paid blacks in July 2004, November, and December, 2004, it is difficult to view that there was an urgent managerial necessity to dismiss a large number of workers. In light of the fact that the intervenor was newly employed immediately before the dismissal in this case, it cannot be deemed that the intervenor made a faithful efforts to avoid dismissal. It does not constitute unfair labor practices as provided by Article 81 subparag. 1 of the Labor Union and Labor Relations Adjustment Act, since only one of the general employees was organized as a non-friendly worker member with an un-employee relation, and the intervenor did not directly direct work at the labor-management council, which was merely a fishing organization, to select those who were employed by the director-general or the management support director-general and the members who were actively engaged in the activities of the trade union. Accordingly, the dismissal in this case constitutes unfair labor practices as provided by Article 81 subparag. 1 of the Labor Union and Labor Relations Adjustment Act.

Therefore, the review decision of this case, which concluded that the dismissal of this case was not unfair labor practice, should be revoked.

B. Determination

(1) Article 81 subparag. 1 of the Trade Union and Labor Relations Adjustment Act provides that "an act of dismissal or disadvantage to a worker on the ground that the worker has joined or attempted to join a trade union, or has organized a trade union, or has conducted other lawful acts for the operation of a trade union" as a type of unfair labor practices by the employer. Thus, unfair labor practices under Article 81 of the same Act refer to cases where the worker conducted "reasonable acts for the operation of a trade union" and the employer conducted an act of disadvantage such as dismissal of the worker on the ground of such act, and the assertion of such fact and burden of proof are against the worker claiming unfair labor practices (see Supreme Court Decision 95Nu16738 delivered on September 10, 196, 99). Where the dismissal of the worker is deemed that the worker has been dismissed on the ground of legitimate labor union activities, unlike the grounds for dismissal, the dismissal shall be deemed as an unfair labor practice, and whether or not the worker has a legitimate ground for dismissal should be determined by considering the circumstances such as unreasonable labor practices and actions of the employer and the same kind of labor union.

(2) As seen earlier, all of the dismissed workers of this case are members of the Plaintiff’s branch, while the first instance court ordered the Intervenor to submit documents containing the results of appraisal, such as an individual comprehensive evaluation table and an individual aggregate table of personal data, which were considered as the reference data when selecting the person subject to dismissal of this case, but the Intervenor refused to do so and immediately filed an immediate appeal, which was cited in the appellate court (Seoul High Court 2006Ra183) and confirmed by it, and eventually, the said documents are not submitted. Thus, this court cannot conduct a substantive examination as to whether the Intervenor ratedly against non-members in selecting the person subject to dismissal of this case.

In light of these circumstances, from the standpoint of the plaintiff and the dismissed workers of this case, there is no doubt that the plaintiff and the dismissed workers of this case are disadvantageously assessed against non-members in selecting the workers of this case on the ground that they performed legitimate acts for the labor union work of this case. However, it is insufficient to recognize the plaintiff's intention to put the above non-party and 13 workers' labor union activity of this case, i.e., the plaintiff's 2, 3-1, 4-13, 15-21, 22-1, 23-1, 24-1, 3-4-1, 3-1, 3-2, 4-1, 4-2, and 4-1, 3-1, 3-2, 4-1, 3-1, 4-2, 4-1, 3-2, 4-1, 3-2, 4-2, and 4-1, 5-1, and 4-1 of the plaintiff's dismissal.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be just and it shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge) Kim Jong-sik Kim Yong-sik

1) An employer of the former Labor Union and Labor Relations Adjustment Act (amended by Act No. 8158 of Dec. 30, 2006) and Article 81 (Unfair Labor Practice) of the same Act may not engage in any of the following acts (hereinafter referred to as “unfair labor practice”).