[1] Requirements for establishing unfair labor practices under Article 39 subparagraph 1 of the former Trade Union Act

[2] Whether even if there is a gap in promotion by comparison between a labor union member and a non-labor union member under the system of promotion of the ability principle, it can be deemed as an unfair labor practice just because it can be seen as an unfair labor practice (negative)

[3] The case reversing the judgment of the court below which held that the non-party union members who worked for not less than two years as the director of the company's division failed to be promoted from promotional personnel to the vice-director was disadvantageous to the above union members' legitimate trade union activities, etc.

[1] Article 39 subparagraph 1 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 1996) provides that "the act of a worker to dismiss or disadvantage the worker on the ground that the worker either joined or was willing to join a trade union, or intended to organize a trade union, or performed any other lawful act for the operation of a trade union, shall be classified into an employer's unfair labor practice. In order to establish unfair labor practice under the same Act, the act of a worker for the operation of a trade union, such as joining a trade union, etc., and the employer shall be deemed to have committed an act of disadvantage the worker

[2] In order to say that a member was treated disadvantageously in promotion compared to a non-member of a trade union on the ground that he/she joined the trade union under the so-called system of promotion of competence, which is promoted by reflecting his/her job ability, job performance, and eligibility for higher position, barring special circumstances, there should be no difference between the member and the non-member who is subject to comparison in his/her job ability, job performance, and eligibility for higher position. Even if there is a gap in promotion by comparing the member and the non-member of the trade union as a whole, it cannot be readily concluded that such difference constitutes unfair labor practices under Article 39 subparagraph 1 of the former Trade Union Act.

[3] The case reversing the judgment of the court below which held that the non-party union members who worked for not less than two years as the director of the company's division could not be promoted to the vice-director on the surface of the promotion is disadvantageous to the above union activities of the above union members when the company actually conducted promotional personnel management, unlike the implementation of the career evaluation system of service and recommendation of the director of department.

[1] Article 39 subparagraph 1 of the former Trade Union Act (repealed by Act No. 5244 of Dec. 31, 1996) (see current Article 81 subparagraph 1 of the Trade Union and Labor Relations Adjustment Act), Article 27 (see current Article 30) of the former Labor Union Act (amended by Act No. 5309 of Mar. 13, 1997) / [2] Article 39 subparagraph 1 of the former Trade Union and Labor Relations Adjustment Act (repealed by Act No. 5244 of Dec. 31, 1996) (see current Article 81 subparagraph 1 of the Trade Union and Labor Relations Adjustment Act), Article 27 (see current Article 30) of the former Labor Union and Labor Relations Adjustment Act (amended by Act No. 5309 of Mar. 13, 199) / [3] Article 30 subparagraph 1 of the former Labor Union Act (amended by Act No. 5309 of Dec. 31, 1997) of the Labor Union Act

[1] Supreme Court Decision 92Nu9418 delivered on October 27, 1992 (Gong1992, 3317), Supreme Court Decision 94Nu11583 delivered on April 28, 1995 (Gong1995Sang, 1990), Supreme Court Decision 95Nu16738 delivered on September 10, 1996 (Gong196Ha, 3038)

Cit Bank Trade Union

The Chairperson of the National Labor Relations Commission

CT Bank (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 95Gu9152 delivered on June 11, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Article 39 subparag. 1 of the former Trade Union Act (repealed by Act No. 5244, Dec. 31, 1996; hereinafter the same) provides that "the act of an employee to dismiss or disadvantage his/her employee on the ground that the employee either joined or was intending to join a trade union, or intended to organize a trade union, or performed any other lawful act for the operation of a trade union, shall be classified as an unfair labor practice conducted by the employer. In order to establish unfair labor practice under Article 39 of the same Act, the act of an employee such as joining a trade union and joining the trade union and providing disadvantages to his/her employee on the ground of such an act must be deemed as an act of unfair labor practice (see Supreme Court Decision 95Nu16738, Sept. 10, 196). Thus, even if a member was treated disadvantageously in comparison with his/her non-members on the ground that he/she joined the trade union under the so-called system of promotion of competence, performance, and eligibility for superior service, it does not constitute an unfair labor practice.

2. According to the reasoning of the lower judgment, the lower court determined that the Intervenor’s failure to promote Nonparty 1, Nonparty 2, Nonparty 3, Nonparty 4, Nonparty 5, Nonparty 6, and Nonparty 7 (hereinafter Nonparty 7) to the deputy head on September 1, 1994, on the ground of the fact that, unlike the Intervenor’s implementation of the personnel management system of performance rating and recommendation of the head of department head, the Intervenor was disadvantageously treated to the union members as to the legitimate trade union activities of Nonparty 7 in the course of promotion.

However, as the court below duly admitted, the intervenor determined the final person to be promoted in the personnel committee after consultation with the personnel committee after dividing five elements, such as the ability to perform duties, problem solving ability, work performance, number of higher-ranking officials, and job evaluation, into four categories, in the process of promotion examination, the intervenor determined the final person to be promoted. The actual work evaluation is divided into the division, the division, the division, the division, and the director class into one group, 10%, 20%, 20%, 3, 45%, and 5%, so it is very difficult for the director to obtain Grade 1 and 2, the person to be rated 4 was unable to expect promotion from Nonparty 4 due to the circumstances that it is difficult for the intervenor to receive Grade 4, and the non-party 3 and the non-party 4 and the director of the division at the time of promotion to the non-party 4 and the non-party 4 were all members of the company, and the non-party 5 and the non-party 4 were members of the company.

On the other hand, the court below found that the period of service in the class A of No. 8-1, No. 2, and No. 3 is the important factor in the promotion evaluation rating table, and that the period of service required to be promoted to the deputy head in the response (Evidence A) submitted by the intervenor to the Seoul Special Metropolitan City Regional Labor Relations Commission is 1 year, 2 year, 1 year and 2 year, and 3 years ordinarily, and that the number of years of service of the promoters indicated in No. 8-1, 2, and 3 is ordinarily required for three years, and that the results of service evaluation are not stated as the result of service evaluation for part of the persons subject to promotion examination, and that the system of service evaluation to be implemented by the intervenor is merely the old office under the surface of promotion evaluation. However, according to the special agreement (Evidence 9) between the plaintiff and the intervenor, the period of service between the plaintiff and the division of the court below cannot be found to be the minimum number of years of service No. 1, which is not included in No. 7 evidence No. 1.

3. Inasmuch as the Intervenor’s promotion system is based on the Intervenor’s promotion system based on the reflection of employee’s ability, performance, eligibility for higher position, etc., the Intervenor, as at the time of original adjudication, did not have any person who has been promoted to the deputy head from the division of labor union since its commencement in the Republic of Korea on September 1, 1994 (the original court did not confirm whether there were several persons whose period of service was more than one year as a union member in the examination of promotion before promotion, and whose period of service was more than one year, and whose period of service was more than one year as at September 1, 1994 was more than one year, the lower court should have compared Nonparty 7’s number of non-party 1 as at the time of his/her initial examination and determination as at the time of his/her initial examination and determination as to whether he/she had been in the position of Nonparty 1 as at the time of his/her initial retirement to the deputy head, and thus, compared the overall number of non-party 1 as at the time of his/her service.

Nevertheless, the court below did not review the above and judged that the decline in promotion of Nonparty 7 constituted unfair labor practices for the reasons stated in its reasoning. Thus, the court below erred by misapprehending the facts contrary to the rules of evidence or by misapprehending the legal principles as to the establishment of unfair labor practices, or by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)