[1] In a case where a new dispute is added during a legitimate industrial action, whether a separate report on the occurrence of a labor dispute and a cooling period should be applied (negative)

[2] Where a collective agreement provides that "no personnel action, such as disciplinary action or transfer, shall be taken during the period of dispute", whether a person may take disciplinary action, such as disciplinary action, during the period of dispute by citing grounds for disciplinary action that occurred during the period of dispute duly commenced (negative)

[3] Where a collective agreement provides that "the Disciplinary Committee shall be held within 15 days from the date on which the grounds for disciplinary action occurred, and any non-compliance with the disciplinary action shall be null and void," the validity of the resolution of disciplinary action made by the disciplinary committee held in violation of the above provision and the starting point of

[1] Even if a labor dispute occurred due to a disagreement with the assertion of working conditions, and a new dispute was added to a new one during which the workers report the occurrence of the labor dispute and continue the industrial action through the cooling period, there is no obligation to report the occurrence of the labor dispute and to go through the cooling period.

[2] If a collective agreement provides that "no personnel action, such as disciplinary action or transfer, shall be taken during the dispute period", this is to substantially guarantee the union's collective action right by preventing trade union activities from undermining due to personnel measures, such as disciplinary action, against union members participating in an industrial action during the dispute period. Thus, in a case where an industrial action is duly commenced by legitimate and procedural purposes in compliance with all the provisions of the Trade Union and Labor Relations Adjustment Act, even if the dispute occurred during the dispute period, all disciplinary measures, including disciplinary action, against union members, such as holding a disciplinary committee during the dispute period, may not be taken on the ground that the dispute continues to exist.

[3] In a collective agreement, “the Disciplinary Committee shall be held within 15 days from the date of the occurrence of the grounds for disciplinary action, and any disciplinary action that fails to comply with the said provision shall be null and void, barring any unavoidable circumstance, such as that it is difficult to comply with the said provision as a considerable period of time is required to investigate and determine the persons subject to disciplinary action and the grounds for disciplinary action. Meanwhile, the starting point of the time of holding the disciplinary committee is, in principle, the time of the occurrence of the grounds for disciplinary action, but if a disciplinary action is taken for the grounds for disciplinary action that occurred during the dispute period, such as “the prohibition against the disciplinary action during the dispute period,” the above period shall be calculated from

[1] Article 17 of the Trade Union and Labor Relations Adjustment Act/ [2] Article 23 of the Labor Standards Act/ [3] Article 23 of the Labor Standards Act

[1] Supreme Court Decision 92Do859 delivered on November 10, 1992 (Gong1993Sang, 160) / [2] Supreme Court Decision 2008Da70336 Decided February 12, 2009

Gyeongnam Pharmaceutical Co., Ltd. (Law Firm Jeongse, Attorney Jeong Jin-jin, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and two others (Attorney Kim Gyeong-kon, Counsel for the defendant-appellant)

Seoul High Court Decision 2009Nu27208 decided August 26, 2010

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 (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The ground of appeal pointing this out to the effect that the court below erred in finding facts which are the premise of the judgment, is without merit, since it contests the fact-finding which belongs to the exclusive authority of the court below, which is the fact-finding court.

2. Regarding ground of appeal No. 2

In a case where the industrial action has multiple purposes pursuing the industrial action, and some of them are not legitimate, the legitimacy of the industrial action should be determined by the legitimacy of the main purpose or genuine purpose (see Supreme Court Decision 2007Du12859, Jun. 23, 2009, etc.).

The court below acknowledged the legitimacy of the purpose of the industrial action in this case on the ground that the industrial action in this case was conducted mainly for the purpose of the sale prohibition, etc. of the company or continued for the purpose of the sale prohibition, etc., even though the industrial action in this case was commenced mainly for the purpose of the sale prohibition of the company or all other industrial actions were extinguished, the court below acknowledged the legitimacy of the purpose of the industrial action in this case on the ground that it did not constitute the industrial action in this case for the purpose of the sale prohibition, etc. of the company.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the legitimacy of the purpose of industrial action, as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

Even if a labor dispute occurred due to a disagreement with respect to working conditions, and a new dispute was added while the workers report the occurrence of the labor dispute and continue an industrial action through a cooling period, there is no obligation to report the occurrence of a separate labor dispute and to undergo a cooling period (see Supreme Court Decision 92Do859, Nov. 10, 1992).

The lower court determined to the effect that the instant industrial action was not in violation of the duty of peace, on the grounds that the industrial action was commenced in accordance with lawful procedures, based on the circumstances acknowledged by the evidence adopted, and that, even if there was no pro-con voting on the special organization negotiation agenda containing the prohibition of the sale of the company, as long as there was no pro-con voting on the main purpose of the instant industrial action, such as wage increases, there was no obligation to undergo a separate procedure to commence the industrial action regarding the said special organization negotiation, and that the demand for employment stability, etc. following the sale of the company did not constitute a matter that is not subject to the provisions of the existing collective agreement or that requires correction

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the procedure of industrial action and the duty of peace, as otherwise alleged in the ground of appeal.

4. As to the fourth ground for appeal

If the collective agreement provides that "no personnel action, such as disciplinary action or transfer, shall be taken during the dispute period", this is aimed at guaranteeing substantially the right to collective action of a trade union by preventing a trade union from sustaining its activities due to personnel measures, such as disciplinary action, against union members who participated in an industrial action during the dispute period. Thus, in cases where an industrial action is duly commenced by legitimate and procedurally complying with all the provisions of the Trade Union and Labor Relations Adjustment Act in its purpose, even if the grounds for disciplinary action have arisen during the dispute period, no personnel action, including the proceeding of disciplinary action, against union members during the dispute period, including the holding of the disciplinary committee during the dispute period, shall be taken (see Supreme Court Decision 2008Da70336, Feb. 12, 2009).

In addition, if a collective agreement provides that "the Disciplinary Committee shall be held within 15 days from the date of the occurrence of the disciplinary cause, and any disciplinary action that fails to comply with the provision shall be null and void, barring any unavoidable circumstance, such as that it is difficult to comply with the above provision because the investigation and confirmation of the person subject to disciplinary action and the disciplinary cause are required for a considerable period of time, the resolution of the disciplinary committee held in violation of the above provision shall be null and void. On the other hand, the starting point of the time of holding the disciplinary committee shall be, in principle, the time when the disciplinary cause occurs. However, the period shall be calculated from the time when the industrial action is completed if the grounds for disciplinary action, such as "the prohibition of disciplinary action during the period

The court below held that Article 32 of the collective agreement of the plaintiff company provides that "if a company intends to take disciplinary action against its members, it shall undergo the following procedures, and the disciplinary action against its members shall be null and void," and subparagraph 2 of Article 32 provides that "the disciplinary committee shall take place within 15 days from the date of occurrence of the disciplinary action," the above provision on the time of holding the disciplinary committee is not a simple decoration provision but an effective provision, and the starting point of starting the disciplinary action is, in principle, the time of occurrence of the disciplinary action. However, if it is impossible to take disciplinary action as provided in Article 108 of the collective agreement prohibits disciplinary action during the dispute period, the above period shall be calculated from the time of completion of the industrial action. And the disciplinary action against the defendant joining the defendant except the defendant 2's disciplinary action against the defendant 2 on April 23, 2008 shall be held within 15 days from the date of completion of the industrial action, the disciplinary committee shall be held within the period of April 4, 2008.

On the other hand, the court below rejected the plaintiff company's assertion that the disciplinary committee of this case was conducted through the continuation of the disciplinary committee previously held, and thus did not violate Article 32 subparagraph 2 of the collective agreement on the time limit for holding the disciplinary committee, on the ground that the existing disciplinary committee held during the period of the industrial action of this case violated Article 108 of the collective agreement and is null and void due to serious defects in the disciplinary procedure, and therefore, the disciplinary committee of this case cannot be deemed to have complied with

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the time limit for holding the disciplinary committee or the prescription of disciplinary action under Article 32 subparagraph 2 of the collective agreement as alleged in the grounds of appeal.

5. Ground of appeal No. 5

The court below held that "the disciplinary committee shall be composed of four members and the majority of the members present with the consent of a majority of the members present: Provided, That in the case of the numbers of votes of approval and disapproval, the chairperson appointed by the representative director shall have the right to make decisions and in the case of dismissal of members, sufficient consultation with the labor union shall be held in advance." If the chairperson of the disciplinary committee shall be appointed separately from the members of the disciplinary committee, it is necessary to ensure fair disciplinary action against workers in equal positions by participating in the same number of disciplinary committee members, and if the chairperson of the disciplinary committee is appointed separately from the members of the disciplinary committee, it is reasonable to interpret that the chairperson of the disciplinary committee shall be appointed by the representative director from among the members of the disciplinary committee composed of the number of members and the number of members of the disciplinary committee, and on the premise that it cannot be interpreted separately from the members of the disciplinary committee, the disciplinary committee of this case shall be composed of nine members including the members of the employer and workers disciplinary committee and the representative director of the plaintiff company, and the chairperson of the disciplinary committee of this case shall constitute the disciplinary committee in violation of Article 3 of the disciplinary committee.

In light of the records, this judgment of the court below is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the composition of a disciplinary committee as alleged in the grounds of appeal.

6. Regarding ground of appeal No. 6

The court below determined that the disciplinary action by the resolution of the disciplinary committee held after the existence of a defect in the composition of the disciplinary committee or the deadline for holding the disciplinary committee is null and void on its own, and that the procedural defect cannot be cured on the ground that the intervenor joining the defendant attended the disciplinary committee in this case and made a statement about the grounds for disciplinary action.

In light of the records, this judgment of the court below is just and acceptable, and there is no error of law such as misunderstanding of legal principles as to the recovery of defects in disciplinary proceedings, as argued in the Grounds for Appeal

7. Conclusion

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

Justices Lee Sang-hoon (Presiding Justice)