(영문) 서울중앙지방법원 2015.5.15.선고 2014가합35452 판결

2. A. Defendant A, B, and D jointly pay to each of the Plaintiffs listed in 300,00, 158, 158, and 226, respectively, 200,000, and 5% per annum from July 16, 2014 to May 15, 2015, and 20% per annum from the following day to the date of full payment.

B. The plaintiffs' remaining monetary claims against the defendant A, B, and D and all the monetary claims against the defendant C, E, and F are dismissed.

3. Of the costs of lawsuit, the part 9/10 arising between the Plaintiffs and the Defendants A, B, and D are borne by the Plaintiffs, and the remainder is borne by the Defendants, respectively, and the part arising between the Plaintiffs and the Defendants C, E, and F is borne by the Plaintiffs.

4. Paragraph 2(a) of this Article may be provisionally executed.

Purport of claim

Between the plaintiffs and the defendants, Defendant A (hereinafter referred to as the "Defendant Trade Union") drafted this term on April 8, 2014

The labor-management agreement, the special honorary retirement implementation agreement, and the labor-management agreement change.

In February 24, 2015, it is confirmed that the labor-management agreement related to the extension of the retirement age and the wage peak system is both null and void.

(c)

The Defendants jointly and severally filed a complaint against each of the above 2,00,000 won and each of the above 2,000 won against the Plaintiffs.

It shall pay 20% interest per annum from the day after the last delivery of the copy to the day of full payment.

Reasons

1. Basic facts

A. The relationship between the parties

The defendant trade union is a trade union organized by the employees of the company A (hereinafter referred to as the "company of this case"). The defendant B is the chairperson of the company, the secretary general of the defendant C, the defendant D is the business support office, the defendant E is the head of the policy office, and the defendant F is the head of the organization office.

나. 노사합의서의 작성 등 1 ) 피고 노동조합은 2014. 4. 8. 이 사건 회사와 사이에 아래와 같은 내용으로 노사합의를 하였다 ( 이하 ' 1차 노사합의 ' 라 한다 ). 이때 피고 노동조합이 조합원 총회를 개최하는 등 노사합의서 작성과 관련하여 사전에 조합원들의 의견을 청취한 바는 없다 . ▣ ( 사업 합리화 ) 노사합의서주식회사 a와 피고 노동조합은 회사의 경영효율화를 위한 사업합리화 계획을 협의하고아래와 같이 합의한다 .○ 회사의 사업합리화 계획에 의거 Mass 영업 · 개통 / AS - Plaza 분야 업무를 폐지한다 .단, 회사 경영상황에 따라 축소 운영할 수 있다 .○ 사업합리화 조치에 따라 해당 분야 잔류자에 대해서는 직무전환 교육 후 접점지역으로 재배치한다. 단, 세부기준은 별도 합의 시행한다 .○ 인사규정상의 사무 / 기술직렬은 일반직렬로 통합한다 .▣ ( 특별명예퇴직 ) 노사합의서○ 특별명예퇴직을 2014. 4. 30. 자로 시행한다 .- 특별명예퇴직은 근속 15년 이상인 직원을 대상으로 하되, 정년 잔여기간이 1년 미만인 자는 제외한다 .- 특별명예퇴직 유형은 퇴직형과 재취업형 2가지로 하며, 직원들이 자유롭게 선택할 수 있도록 한다 .- 퇴직희망자가 재취업형을 선택하는 경우 직무연관성을 고려하여 2년간의 그룹사취업을 알선한다 .○ 정기 명예퇴직 제도는 2014. 5. 1. 자로 폐지한다. 단, 2014년 1분기 명예퇴직자는 금번특별명예퇴직 조건에 준하여 적용한다 .○ 임금피크제는 2015. 1. 1. 자로 도입한다. 단, 적용연령 및 감액율 등 세부기준은 추후합의 시행한다 .▣ ( 복지제도 변경 ) 노사합의 서○ 대학생 자녀학자금 지원 / 대부제도 및 본인 학자금 지원제도를 2014. 6. 1. 자로 폐지한다 .○ 중학교 학자금 지원제도를 폐지하며, ( 구 ) kt / ktf 이원 운영중이던 고등학교 학자금 지원제도는 kt 기준으로 통합한다 .공통포인트 ( 160만포인트 ) 를 130만포인트로 조정하고, 인재육성 포인트 및 교육보조비는폐지한다 .○ 변동포인트를 신설하여 전년도 영업이익과 개인성과평가 결과에 따라 차등 지급한다 . 2 ) 이 사건 회사는 2014. 4. 8. 실근속기간 15년 이상인 직원들을 대상으로 같은 달 30. 자 특별명예퇴직시행 계획을 공고하는 한편 ( 애초 2014. 4. 10. 부터 같은 달 24. 까지를 접수기간으로 하였다가 이후 그 기간을 21. 까지로 단축하였다 ), 그 무렵 사업합리화 조치 등에 따라 전국에 소재한 지사의 통 · 폐합 및 그에 따른 인력 재배치를 실시하였고, 배치되지 못한 인원들에 대해서는 인사고과 등을 반영하여 지역본부에 재배치하거나 당시 신설된 업무지원 CFT 부서로 전보하였다 . 3 ) 한편 피고 노동조합은 이 사건 소송계속 중인 2015. 2. 24. 이 사건 회사와 사이에 정년제 및 임금피크제 등의 구체적인 시행방안에 관하여 노사합의를 하였다 ( 이하 '2차 노사합의 ' 라 하며, 1차 노사합의까지를 통틀어 ' 이 사건 각 노사합의 ' 라 한다 ). 이 때에도 피고 조합에서 조합원 총회를 개최하여 위 노사합의 사항과 관련하여 사전에 조합원들의 의견을 청취한 바는 없다 .

4) The Plaintiffs are the workers who voluntarily retired or transferred to the CFT department in accordance with the aforementioned series of measures taken by the instant company after the first labor-management agreement was reached. (Now 158 through 226 Plaintiffs are applicable thereto)

다. 관련 규정리 노동조합 및 노동관계 조정법 ( 이하 ‘ 노동조합법 ’ 이라 한다 ) .제16조 ( 총회의 의결사항 )① 다음 각 호의 사항은 총회의 의결을 거쳐야 한다 .3. 단체협약제22조 ( 조합원의 권리와 의무 ) 노동조합의 조합원은 균등하게 그 노동조합의 모든 문제에 참여할 권리와 의무를 가진다. 다만, 노동조합은 그 규약으로 조합비를 납부하지 아니하는 조합원의 권리를 제한할 수 있다 .▣ 규약 ( 이하 ' 이 사건 규약 ' 이라 한다 )제10조 ( 조합원의 권리 ) 조합원은 본 규약에 따른 동등한 권리를 가진다. 단, 규약에 의하지 아니하고는 권리를 제한받지 않으며, 징계를 받은 조합원에 대해서는 규정으로 정하는 바에 따라 권리를 제한할 수 있다 .① 조합원은 다음과 같은 권리를 갖는다 .1. 조합의 활동에 동등하게 참여할 권리3. 조합운영에 동등한 발언권 및 의결권6. 기타 조합원으로 권익을 보호받을 권리제21조 ( 의결사항 ) 조합원 총회의 의결사항은 다음 각 호와 같다 .4. 임금협약 및 단체협약 체결에 관한 사항 제61조 ( 단체교섭 )① 본 조합은 단체교섭의 당사자이며, 본 조합이 교섭대표 노조가 되는 경우 위원장은단체교섭 및 체결권은 있으나 조합원 총회의 의결을 거친 후 체결하여야 한다 .제73조 ( 조합원 징계 ) 본 조합의 임원, 산하조직의 임원, 조합간부 및 조합원이 다음 각호에 해당하는 경우 소정의 절차에 따라 징계한다 .1. 규약을 위반한 자 [ 인정근거 ] 다툼 없는 사실, 갑 제1 내지 4, 6, 9호증 ( 가지번호 있는 것은 가지번호를 포함한다. 이하 같다 ), 을 제1, 5 내지 9호증의 각 기재, 변론 전체의 취지

2. The parties' assertion

A. Plaintiffs 1) Since each labor-management agreement of this case was subject to matters that have a significant impact on working conditions, such as the implementation of special honorary retirement and wage peak system and reduction of welfare system, the Defendant trade union prepared a labor-management agreement with the company of this case without undergoing the above procedure, as prescribed by the rules. Therefore, each of the labor-management agreements of this case is null and void in violation of Articles 16 and 22 of the Trade Union Act and Article 10 of the Rules of this case, which guarantee democratic participation of the union members during the process of concluding the labor-management agreement, and it is not effective in itself pursuant to Article 103 of the Civil Act. In particular, in the case of the second labor-management agreement of this case, it is more serious problem in that the Defendants strongly expressed the labor-management agreement through the labor-management website, unlike the promise to finally make a decision on how to implement the labor-management agreement through the general meeting of union members.

2) Ultimately, as a result of the conclusion of the labor-management agreement of this case concluded by the Defendant trade union and the remaining Defendants, without disregarding the procedures for gathering opinions from its members, the working conditions of its members including the Plaintiffs were seriously damaged, such as special honorary retirement, forced transfer, and wage peak system was implemented and the welfare system was reduced. Accordingly, the Defendants, a joint tortfeasor, are jointly and severally liable to compensate the Plaintiffs for mental damages suffered by the Plaintiffs due to each labor-management agreement of this case (such as the reduction of school expenses and the decline of wage level according to the implementation of the wage peak system should also be considered as grounds for increasing consolation money).

B. Defendants 1) Even if it is confirmed that each labor-management agreement of this case between the Plaintiffs and the Defendants is null and void, it cannot be deemed that the legal relationship of the Plaintiffs becomes final or that the judgment is effective against the company of this case. Thus, the part seeking nullification of each labor-management agreement of this case among the plaintiffs' lawsuits of this case is unlawful

2) The part which requires the resolution of the general meeting of the union members in the process of concluding a collective agreement is entirely and comprehensively limited to the right to enter into the agreement by the union’s representative, and thus is null and void in violation of Article 29(1) of the Trade Union Act. Therefore, even if Defendant B, the chairperson of the Defendant Labor Union, entered into each of the instant labor-management agreements with the instant company without the resolution of the general meeting, it is difficult to evaluate that the said labor-management agreement is null and void or its act is unlawful

3. Determination

A. 1) The Plaintiffs seek compensation for damages caused to the Plaintiffs on the grounds that they concluded each labor-management agreement of this case without holding a general meeting of members, and at the same time seek confirmation that the labor-management agreement of this case is null and void in relation to the Defendants. However, since the parties to each of the labor-management agreements of this case are the parties to the Defendant trade union and the company of this case, the parties to each of the labor-management agreements of this case are parties to the legal relationship between one of the parties and the third parties (in the case of the claim against the Defendant trade union, the parties to the claim of nullification of the labor-management agreement of this case are parties to the legal relationship between the parties to the contract and the third parties

2) Although the legal relationship between the parties to the labor-management agreement is not necessarily limited, legal relations between the parties to the labor-management agreement or between the third parties can be the object of the labor-management agreement. However, it is necessary to immediately determine the above legal relationship in order to eliminate the risks and anxiety existing in the plaintiff's rights or legal status according to the legal relationship, and there is interest in confirmation that it becomes the most effective and appropriate method (see Supreme Court Decision 96Da3409, Nov. 22, 1996, etc.). However, even if the judgment confirming the invalidity of each labor-management agreement becomes final and conclusive, the plaintiffs' claim for damages cannot be seen as invalid due to each of the above labor-management agreements, such as the reduction of the labor-management agreement and the transfer of the labor-management agreement to the above departments, and thus, it is not reasonable to deem that the plaintiffs' claim for damages can not be seen as effective due to each of the labor-management agreements in this case.

4) Accordingly, the Defendants’ main defense is with merit.

B. Under Article 29(1) of the Trade Union Act, a representative of a trade union has the authority to negotiate and conclude a collective agreement with an employer or employers’ association for the trade union or union members. For example, if the representative of a trade union, after having agreed on the contents of the collective agreement with an employer according to the collective bargaining result, requires a resolution at a general meeting of union members regarding whether the agreement is a draft agreement, the trade union’s agreement shall be deemed to be merely a nominal cause by completely and comprehensively limiting the power to conclude the collective agreement, and thus, it violates the purport of Article 29(1) of the Trade Union Act, which provides for the power to conclude the collective agreement (see Supreme Court en banc Decision 91Nu1257, Apr. 27, 1993).

However, in light of the fact that a collective agreement has a normative effect that directly determines the standards for the treatment of each member of a trade union, the actual owner of the collective agreement is a worker. Accordingly, collective agreement is the basic request for collective bargaining to be concluded based on the intent of the trade union formed by the members involved in the collective agreement. Article 16(1)3 of the Trade Union Act provides that matters concerning collective agreement shall be determined as the resolution of a general meeting and shall be made by the representative of the trade union to prepare a proposal for bargaining through the general meeting before the commencement of collective bargaining or to ensure that the total amount of union members may continue to gather in the course of collective bargaining, and thus, it is not permissible to limit the exercise of the power of the representative to exercise the power of collective agreement, such as that the trade union reflects the intentions of the union members and requires internal procedures in the rules, etc. for the proper control over the performance of the duties of collective bargaining and the conclusion of collective agreement (see Supreme Court Decision 2010Da24534, Apr. 2

The instant rules stipulate matters concerning the conclusion of collective agreements as matters to be resolved at a general meeting of members of the Defendant trade union (Article 21 subparag. 4), and that the chairperson of the trade union requires the chairperson of the trade union to conclude collective agreements after going through a resolution at a general meeting of members (Article 61(1)). However, even according to the instant rules, the chairperson, the representative of the Defendant trade union, who is the chairperson of the Defendant trade union, may conduct collective bargaining by gathering opinions of members through a resolution at a general meeting, and even during the process of conducting collective bargaining, may undergo

In light of the above legal principles, the fact that each of the above provisions under the rules does not appear to have been evaluated to have limited to the chairperson of a trade union to conclude a collective agreement only after a resolution is passed at a general meeting of union members with respect to whether the agreement is a draft agreement after having agreed with the chairperson of a trade union. In light of the above legal principles, it is difficult to deem that the provisions of Articles 21 and 61 of the rules of this case, etc. are in violation of Article 29(1) of the Trade Union Act, which comprehensively and comprehensively restrict the power to conclude a collective agreement of union representatives (see Supreme Court Decision 2011Du15404, Sept. 2

Therefore, Article 21 of the Rules of this case, etc. reflects the will of the union members and it cannot be deemed null and void as a procedural restriction on the exercise of power to conclude the collective agreement by the representative of the trade union for the proper control of the representative's affairs to conclude the collective agreement. Thus, Defendant B, the chairman of the defendant trade union, entered into each of the labor-management agreements of this case without going through the general meeting of the union members (the defendant D, who was the head of the business support office at the time, signed the labor-management agreement on behalf of the

B) However, considering the characteristics of a collective agreement, which is a collective agreement that is autonomously established to regulate labor-management relations, it is necessary to pay attention to denying the validity of a collective agreement that is formed by the representative and employer of a trade union that is a party to the collective agreement and the employer through autonomous negotiations (Article 32 of the Trade Union Act is also understood to the same purport as the trade union Act does not separately stipulate the grounds for the loss of the validity of a collective agreement or the grounds for denial, except where the validity of a collective agreement is lost upon the expiration

In addition to these circumstances, the following circumstances revealed by the evidence, including the above facts and evidence, as well as the purport of the whole pleadings, i.e., the Defendant trade union’s conclusion of the labor-management agreement between the instant company and the instant company without the resolution of the general meeting of the union members, if it is necessary to derive an agreement between the labor-management and the instant company through an irregular negotiation, unlike the regular collective agreement to be concluded every year or every other year, and the instant company is not likely to have expressed significant issues as to the practice of the instant trade union or the procedural appropriateness thereof. 2) It is difficult to conclude that the instant company proposed to negotiate the labor-management agreement between the instant company and the Defendant trade union’s labor-management agreement as its contents, including the implementation of the voluntary retirement and wage peak system and the reduction of some welfare systems, as well as the management indicators at the time of the instant labor-management agreement. 3) It is difficult to say that it is unreasonable or unreasonable from the standpoint of each of the instant labor-management agreement, which was concluded by the chairman of each of the instant labor-management agreements.

2) The occurrence of liability to compensate for damages (1) the Plaintiffs (i) concluded each labor-management agreement of this case with the content of the claim for damages of this case through the "labor-management agreement", and as a result, the Plaintiffs sought compensation for mental sufferings caused by the degradation of working conditions, such as special voluntary retirement or reduction of welfare system such as school expenses.

However, as seen earlier, as seen in the background leading up to the conclusion of each labor-management agreement and the result of the representative election of the Defendant labor union that was implemented after the first labor-management agreement, each of the labor-management agreements in this case has normative effect despite the procedural defect in the process of the above-mentioned labor-management agreement. Even if Defendant B, etc. negotiated with the company in this case through the general assembly of the union members, it is difficult to conclude that the labor-management agreement in this case is interrupted or that it would lead to a different agreement. Ultimately, there is no proximate causal link between the above procedural violation in the process of concluding each of the labor-management agreements in this case and the Plaintiffs’ reduction of working conditions

(2) However, as each labor-management agreement of this case was concluded in the way of a secret agreement, the plaintiffs deprived of the right to vote at the general meeting set forth in the Code of this case, and the infringement of procedural rights can be deemed to include the purport that "the plaintiffs already suffered mental damage". Thus, this part of this part is examined below.

As seen earlier, insofar as the rules, etc. that required the procedures for gathering opinions from the members through the general assembly before the conclusion of a collective agreement are valid, if the representative of a trade union concluded a collective agreement with an employer without going through the aforementioned procedures, it is reasonable to deem that such act constitutes, in principle, a tort that infringes on the rights of the members who can directly participate in the process of forming the intent of a trade union, and therefore, the representative of a trade union is liable to compensate for damages suffered by the union members (Provided, That the representative of a trade union is merely liable for the duty of due care as a trustee for the trade union upon delegation by the trade union and as an agency representing the trade union, it cannot be deemed that he/she bears the duty of due care as a good manager for each trade union, and therefore, it is difficult to discuss the violation of the duty of due care as a representative of the trade union and damages arising therefrom (see the above Supreme Court Decision 2010Da24534, supra).

In particular, even in cases where a minority group of union members is in violation of procedural rights guaranteed by the rules, as in this case, there is no-Confidence in the chairman of the labor union, including the representative of the labor union, or (Article 16(2) of the labor union Act requires the attendance of a majority of union members and the consent of at least 2/3 of the union members present at the general meeting, and it is virtually difficult to take appropriate disciplinary measures (Article 73 through 77 of the labor union rules of this case). It appears that the level of disciplinary action is determined by the National Assembly or the Central Committee as a person to be subject to disciplinary action, and the chairman is able to receive disciplinary action against the person subject to disciplinary action upon the resolution of the National Assembly of Representatives, and the chairman is able to do so ex officio with the aim of strengthening democracy of the labor union operation, and it seems that it is necessary for the Defendants to comprehensively conclude the labor-management agreement of this case to ensure the effectiveness of the voting rights of the union members within the union as a general meeting.

However, even if the above facts and evidence were adopted and the purport of oral argument, the representative, etc. of a trade union to strive for democracy in the operation of the union through the lawful and reasonable interpretation and application of the labor-management agreement, such as the labor union Act, are difficult to readily deny the above responsibilities as representative due to the fact that illegal and unfair practices have been maintained for a considerable period. ② Each labor-management agreement of this case is not concluded in the form of a regular collective agreement, but it is deemed that the contents of the agreement do not include a majority of the matters that have significant influence on the working conditions of the union members, such as the implementation of special honorary retirement and wage system, the merger of branches, and the reduction of various welfare systems, and thus, it is necessary to consider how to strengthen the procedural democracy as stated in the labor-management agreement of this case as regular collective agreement. In light of the above, even if the labor-management agreement of this case was concluded, it can be seen that the Defendants were not able to have been able to participate in the process of the labor-management agreement of this case.

B) The subject of compensation for damages (1) the Defendants asserted to the purport that the Defendants are liable for joint tort under Article 760 of the Civil Act, since they concluded each labor-management agreement of this case in the smuggling with the exclusion of the Plaintiffs. (2) The Defendant B, the representative of the Defendant trade union, was entitled to conclude each of the labor-management agreements of this case, and was held liable for damages arising from the violation of the rules of this case on a primary basis against the Plaintiffs. In addition, as long as it can be assessed that Defendant B, with regard to the conclusion of the collective agreement of the Defendant trade union, excluded the Plaintiffs from the process of participating in the decision-making, thereby causing direct mental damage to them, it is reasonable to view that the Defendant trade union is jointly and severally liable for compensation with the above Defendant B, who suffered damage to the members of the other party in connection with their duties pursuant to Article 35(1) of the Civil Act ( even if a representative of the organization is internal members, if that representative directly damaged by the tort, it may constitute “other party” under Article 35(1) of the Civil Act.

27. (See, e.g., Supreme Court Decision 99Da19384, Sept. 3, 200) Furthermore, as to whether Defendant C, D, E, and F, an executive officer of the Defendant trade union, is liable as joint tortfeasor.

At the time of the conclusion of each of the labor-management agreements in this case, Defendant C is defined as the Secretary-General of the Defendant Trade Union, Defendant D is the head of the business support office, Defendant E is the head of the policy office, and Defendant F is the head of the organization. Meanwhile, according to Article 52 of the Rules, the duties of the officer of the Defendant Trade Union as the officer of the Defendant Trade Union, the duties of the secretary-general, the duties of the secretary-general, the duties of the direction and supervision of the head of each office, the duties of labor-management negotiations and external cooperation, etc. in the case of the head of the business support office, the analysis of the company's business management and technical plan, the duties of research and policy related to the overall operation of the union, the guidance of dispute, and the duties of the chief of the organization, etc.

However, it is difficult to confirm whether its officers are in charge of any position and role in the process of collective bargaining and concluding collective agreement. Nevertheless, as seen earlier, the Plaintiffs asserted only that they concluded the labor-management agreement of this case in the smuggling, and did not assert how the remaining officers, including Defendant C participated in the act of violating the labor-management agreement of this case. However, according to the above facts and evidence Nos. 9, it can be recognized that they actively participated in the process of concluding the labor-management agreement of this case on behalf of Defendant B, which is the chairman. Thus, according to the above facts and evidence No. 9, it is possible to recognize the fact that they actively participated in the process of signing the labor-management agreement of this case on behalf of Defendant B, such as signing the labor-management bargaining and external business cooperation, one of the main duties of the head of the labor-management support office, and the above Plaintiffs should also be held liable for damages. In the end, the Defendants are liable for damages in relation to Defendant D et al. (4).

C) Scope of damages

In the above circumstances, the details of the revised working conditions under the respective labor-management agreement of this case, namely, the period during which the labor-management agreement was maintained without the resolution of the general meeting of the union members, and the attitude of the union members and the company side of this case, and if the labor-management agreement of this case was followed, the anticipated violation of the procedure of the labor-management agreement of this case.

In light of all circumstances related to the plaintiffs' procedural rights infringed (in particular, in the case of the plaintiffs listed in the separate sheet Nos. 158 through 226, it seems that there is no room for additional infringement of rights related to the second labor-management agreement by voluntarily taking account of the retirement after the first labor-management agreement), it is reasonable to determine the consolation money to be paid to the plaintiffs by the defendant trade union, B, and D as 300,000, respectively, and 200,000,000, respectively, for the remaining plaintiffs.

3) Sub-decisions

Therefore, Defendant trade union, B, and D are jointly liable to compensate the Plaintiffs listed in the sequence 1 through 157 for damages arising from mental distress, each of which is KRW 300,00,00, and 200,000, and each of the above amounts to the rest of the Plaintiffs, from July 16, 2014, the following day after the copy of the complaint of this case was finally served on the said Defendants, for disputes over whether the said Defendants are liable for performance obligations or the scope thereof, from July 16, 2014 to May 15, 2015, which is the date of this judgment, for damages for delay by 5% per annum under the Civil Act, and from the following day to the date of full payment.

4. Conclusion

Therefore, the part of the claim for confirmation among the lawsuits of this case is dismissed in its entirety as unlawful, and the part of claim for money is accepted as to the defendant trade union, B, and D within the scope of recognition above, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.