National Metal Trade Union (Attorney Kim Sang-sung et al., Counsel for the defendant-appellant)

Bosh Co., Ltd. (Law Firm Jeonsung, Attorney Lee Sung-gu, Counsel for the plaintiff-appellant)

March 20, 2013

1. Ascertainment that the Plaintiff is in the position of a representative bargaining trade union regarding collective bargaining for the purpose of concluding wages and collective agreements with the Defendant in 2012.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. Status of the parties

The Defendant, as a company producing motor vehicle mortar, employs 607 full-time workers. The Plaintiff is an industrial trade union at a national level intended for the organization of workers engaged in the metal industry and metal-related industries, and part of its workers belonging to the Defendant are admitted as members. The Bosh Labor Union (hereinafter referred to as the “ Bosh Labor Union”) is a trade union whose employees belong to the Defendant, and is working as the Defendant’s trade union after completing the report on the establishment of the trade union on February 22, 2012.

B. Plaintiff’s demand for collective bargaining and the Defendant’s public notice thereof

On February 22, 2012, the Plaintiff demanded the Defendant to conduct collective bargaining in 2012 to conclude a collective agreement, and the Defendant publicly announced the Plaintiff’s demand for collective bargaining from February 23, 2012 to March 2, 2012. In the said public announcement, the period during which another trade union may demand collective bargaining was stated as “from February 23, 2012 (gold) to March 2, 2012”.

C. Notice of the demand for collective bargaining with Nonparty Trade Union and the Defendant’s determination of collective bargaining trade union

On March 2, 2012, Nonparty Trade Union demanded the Defendant to conduct collective bargaining, and the Defendant determined and publicly announced the Plaintiff and Nonparty Trade Union as a demand for collective bargaining from March 5, 2012 to March 12, 2012.

(d) Conduct of individual negotiations;

On March 13, 2012, the Defendant voluntarily decided a representative bargaining trade union from March 13, 2012 to March 26, 2012, and from March 13, 2012, the Defendant sent the autonomous procedures for the decision of the representative bargaining trade union and the guidance for requesting individual bargaining (Evidence 6) (Evidence 6) with the content that the trade union that wants individual bargaining should file an application in writing within this period. Nonparty Trade Union demanded individual bargaining to the Defendant on March 21, 2012. On March 23, 2012, the Defendant continued individual bargaining with the consent of the above request.

(e) Related statutes;

It is as shown in the attached Form.

【Ground of recognition】 The fact that there is no dispute, Gap’s 1 through 4, Eul’s 6, Eul’s 7, and the purport of the whole pleadings

2. The party's assertion and judgment

A. Publication of the Defendant’s demand for collective bargaining on February 23, 2012 and the validity of the Defendant’s demand for collective bargaining on March 2, 2012

1) Parties’ assertion

As the Plaintiff received a demand for collective bargaining from the Plaintiff on February 22, 2012, the period of public notice of demand for collective bargaining pursuant to the Trade Union Act and the Enforcement Decree thereof shall be from February 23, 2012 to February 29, 2012, and the non-party union's demand for collective bargaining during the above period was made, the Defendant publicly announced the fact of demand for collective bargaining by setting the period from February 23, 2012 to March 2, 2012, which is the following day after the Plaintiff received a demand for collective bargaining from the Plaintiff, and accordingly, the non-party union requested the Defendant to conduct collective bargaining on March 2, 201 of the same year. The Defendant's public notice of demand for collective bargaining and the above demand for collective bargaining from the non-party union's labor union's labor union's labor union's labor union's labor union's labor union's labor union's labor union'

In regard to this, the defendant asserts that the period of public notice of demand for collective bargaining pursuant to Articles 157 and 161 of the Civil Act is from February 24, 2012 to March 2, 2012. Thus, the defendant's public notice of the above demand for collective bargaining and the above demand for collective bargaining by the non-party union is valid.

2) Determination

When an employer receives a request for collective bargaining from a trade union, he/she shall publicly announce the name, etc. of the trade union requesting such bargaining for seven days from the date of receipt of such request so that other trade unions and workers may know thereof (Article 14-3(1) of the Enforcement Decree). If an employer has requested collective bargaining from an employer, another trade union which intends to negotiate with an employer shall request the employer to conduct collective bargaining within the aforesaid public notice period (Article 14-4 of the Enforcement Decree). Therefore, the Defendant publicly announced the fact of the Plaintiff’s request for collective bargaining from February 23, 2012 to February 29, 2012. However, on February 23, 2012, the Defendant publicly announced the fact of the Plaintiff’s request for collective bargaining by setting the period from February 23, 2012 to March 22, 2012, and accordingly, Nonparty Trade Union demanded the Defendant to conduct collective bargaining on March 22, 2012.

However, considering the above facts and the purport of Gap evidence No. 9 (Evidence No. 2; hereinafter the same) and the whole arguments, the following circumstances acknowledged by the defendant, namely, ① the period of delay after the date of receiving the plaintiff's request for collective bargaining immediately following the date when the defendant announced the request for collective bargaining. ② The defendant set the initial date of the request for collective bargaining on February 24, 2012 under the Civil Act as the first day of the public announcement, and on March 2, 2012, the expiration date of the request was determined on March 1, 2012, respectively. The Ministry of Employment and Labor stated that "the period of collective bargaining request was 7 days after the date of public announcement, and that the defendant did not publicly notify the fact that the collective bargaining request was made within 20 days after the expiration date of the public announcement period of collective bargaining under the above provision."

B. The validity of the Defendant’s decision-making public notice of the trade union requesting bargaining on March 5, 2012

1) Parties’ assertion

Even if the plaintiff's domestic domestic company's demand for collective bargaining as of February 23, 2012 and the demand for collective bargaining as of March 2, 2012 is valid, the defendant, in accordance with the Trade Union Act and the Enforcement Decree of the Trade Union Act, shall make a final public notice of the trade union's demand for bargaining on March 3, 2012, which is the following day of March 2, 2012 when the public notice period for the above demand for collective bargaining expires, but the defendant determined the public notice period as of March 6, 2012 from March 6, 2012 to March 12, 2012. The above final public notice asserts to the effect that the above final public notice does not comply with the public notice period and the public notice period as prescribed by the Trade Union Act and the Enforcement Decree

As to this, the Defendant asserts to the effect that: (a) March 3, 2012, which is the day following the expiration date of the public notice period of the above fact of demand for collective bargaining; (b) Saturday and Sundays on March 4, 201; (c) since most workers belonging to the Defendant did not work on March 3 and April of the same month, it cannot be sufficiently recognized even if the Defendant issued a final public notice on March 3 of the same month; and (d) in fact, the following day following the expiration date of the public notice period of demand for collective bargaining should be deemed March

2) Determination

The following day after the period of public announcement pursuant to Article 14-3 (1) of the Enforcement Decree expires, an employer shall determine and notify a trade union which has requested bargaining pursuant to Articles 14-2 and 14-4 of the Enforcement Decree, and publicly announce the matters prescribed by Ordinance of the Ministry of Employment and Labor, such as the name of the trade union which has requested bargaining, and the number of union members as of the date the trade union has requested bargaining, for five days (Article 14-5 (1) of the Enforcement Decree). However, the public announcement period of March 5, 2012, which is not the following day of March 2, 2012 when the period of public announcement of the above fact of requesting collective bargaining expires, was determined and publicly announced as March 6, 2012 from March 6, 2012 to March 12, 2012.

On the other hand, March 2, 2012, which is the expiration date of the period of public notice of the above collective bargaining request, is closed on March 2, 2012. On the 3th day following that day, Saturday, and on Sundays 4 of the same month, the fact that it was Sundays is apparent. In this case, it is examined whether the trade union's confirmation and public notice of the bargaining request should be made on a voluntary basis as to whether it should be made on the 5th day of the same month. (1) Article 161 of the Civil Act provides that where the last day of the period is Saturday or a public holiday, the period shall expire on the following day, and is not applicable to the first day of the period (see Supreme Court Decision 81Nu204, Feb. 23, 1982). (2) The Civil Act provides that where the first day of the period is Saturday or a public holiday, the period of public notice shall be determined on an important date, regardless of whether the period of public notice is the expiration date or a majority of the trade union's request.

However, in a case where the contents of a final and conclusive publication are not publicly announced or announced differently from the contents submitted by a trade union, there is a system that ex post facto terminates the validity of the final and conclusive publication (Article 14-5(2) through (5) of the Enforcement Decree) by filing an objection against the trade union, taking measures against the employer, making a request for correction of the trade union, and making a decision of the Labor Relations Commission (Article 14-5(2) through (5) of the Enforcement Decree), such system is not established. If the court delays the final and conclusive publication, it is not prudent to invalidate it after the ex post intervention. (2) If the final and conclusive publication becomes null and void, it is reasonable to determine the invalidity of the final and conclusive publication solely on the ground that the court delays the final and conclusive announcement due to the following circumstances, including the decision of the autonomous representative bargaining trade union, the demand for individual bargaining, and the fact that the legal relationship related to collective bargaining, which had already been completed, will have an impact on the chain of the final and conclusive publication

In light of the above facts, the Defendant’s final announcement on March 5, 2012, which was the first day following the Saturday and the first day following the second day of March 6, 2012, and the second day of March 12, 2012, and the second day of the notice was merely a separation period, and the Defendant’s view is likely to mislead the majority of workers to believe that the final announcement should be made on the date of attendance at work because there is concern about the problems that may arise in the event of the final announcement on Saturdays or public holidays. In light of the above, the Defendant’s final announcement on March 5, 201, which was the 3rd day of the same month and public holidays, was made on March 6, 2012, and the first day of the period of public announcement was set on the 10th day of the same month and the first day of the same public announcement on March 12, 201, the Defendant’s final announcement on March 5, 2012 cannot be readily accepted.

C. The effect of the Defendant’s request for individual bargaining on March 21, 2012 and the Defendant’s consent to individual bargaining on March 23, 2012

1) Parties’ assertion

Even if the plaintiff's domestic company's notification of the defendant's demand for collective bargaining on February 23, 2012 and the defendant's demand for collective bargaining on March 2, 2012 are valid, the trade union's notification of demand for collective bargaining on March 3, 2012 may make an individual request for bargaining and consent thereto by March 17, 2012, and even if the trade union's notification of demand for collective bargaining on March 5, 2012 is possible, the non-party's demand for individual bargaining and consent thereto can be made by March 5, 2012 even if the date of determination of the trade union's determination of demand for bargaining is March 5, 2012, the non-party union's demand for individual bargaining on March 23, 2012 and the defendant's consent to the above individual bargaining did not comply with the Trade Union Act and the Enforcement Decree of the Trade Union Act, thus, it is invalid

As to this, the Defendant asserts that the “14 days from the date when the trade union became final and conclusive as the trade union requesting individual bargaining pursuant to the proviso of Article 29-2(1) and (2) of the Trade Union Act, Articles 14-6(1) and 14-5 of the Enforcement Decree of the Trade Union Act, and the “14 days from the date when the trade union became final and conclusive as the trade union requesting bargaining” is “14 days from the date when the expiration date of the public notice of the determination of the trade union requesting bargaining expires,” in this case, from March 13, 2012 to March 26, 2012, and therefore, the Defendant’s request for individual bargaining on March 21, 2012 and the Defendant’s consent on March 23, 2012 is lawful.

2) Determination

As seen earlier, if there are at least two trade unions which have established or joined a single business or workplace, an employer may agree not to take procedures for the simplification of a representative bargaining trade union within a time limit set autonomously to determine a representative bargaining trade union (Article 29-2(1) of the Trade Union Act). The time limit for the determination of an autonomous representative bargaining trade union shall be 14 days from the date the trade union which has requested bargaining pursuant to Article 14-5 of the Enforcement Decree determines or determines the time limit for the determination of the autonomous representative bargaining trade union (Article 14-6(1) of the Enforcement Decree). The purport of the above provision, which sets the time limit for the autonomous decision of the representative bargaining, is to guarantee that the trade union requesting bargaining has set a sufficient period to determine whether the representative bargaining trade union voluntarily determines the representative bargaining trade union or the employer has consented to the individual bargaining, and thus, the above provision is a mandatory provision. Accordingly, if an employer’s individual bargaining agreement fails to take effect within the voluntary decision period for

In this case, it is clear that the term "determined" and "determined" are used separately for whether the date of determination or decision of a trade union is at any time, and under Article 14-6 (1) of the Enforcement Decree, and (2) Article 14-5 of the Enforcement Decree does not provide for the system of ex post extinction of the effect of the above final notification due to an employer's objection or a request for correction after the employer's notification or public announcement of the trade union is made. (3) Other trade unions are dissatisfied with the contents of the above final notification or public announcement, the term "other trade unions" can only raise an objection in the procedure of determination of the autonomous representative trade union pursuant to Article 14-6 of the Enforcement Decree, or resolve it, or it can be said that it appears to be reasonable for the employer to raise an objection under Article 14-7 (1) and (2) of the Enforcement Decree to the effect that it can be seen that the above new notification or public announcement is made in accordance with Article 14-7 (3) of the same Enforcement Decree to the Labor Relations Commission.

Therefore, in the instant case, the Plaintiff requesting negotiations and the Nonparty’s labor union did not raise an objection under Article 14-5(2) of the Enforcement Decree, and as seen earlier, as the Defendant’s final announcement was valid on March 5, 2012, the “date determined pursuant to Article 14-5” under Article 14-6(1) of the Enforcement Decree shall be deemed March 5, 2012. Therefore, the period during which the Defendant may consent to the individual request is effective from March 5, 2012 to March 19 of the same month, and the Defendant’s individual request for bargaining made on March 21, 2012 and the Defendant’s individual consent made on March 23, 2012 thereafter is null and void.

As seen earlier, even if the Defendant’s consent to demand individual bargaining on March 23, 2012 is null and void, as long as the Defendant’s notification of demand for collective bargaining on February 23, 2012, the non-party’s demand for collective bargaining on March 2, 2012, the Defendant’s notification of demand for collective bargaining on March 2, 2012, the Defendant’s notification of confirmation of demand for collective bargaining on March 5, 2012, and the trade union’s notification of demand for bargaining on March 5, 2012 is valid, this case constitutes a case where the Plaintiff and non-party trade union did not voluntarily set a representative bargaining trade union within the deadline for autonomous representative bargaining trade union. As such, the trade union organized by the majority of all the union members participating in the procedures for simplification of bargaining windows

D. Whether the Plaintiff constitutes a major trade union

1) Parties’ assertion

The Plaintiff asserts that the base date for determining a major trade union pursuant to Article 29-2 (3) of the Trade Union Act is not the date on which the trade union was actually determined and publicly announced, but the date on March 1, 2012, which should have been determined and publicly announced. Therefore, the Plaintiff, who was a major trade union at that time, has the status

On the other hand, the defendant asserts that the base date for determining a major trade union pursuant to Article 29-2 (3) of the Trade Union Act is March 5, 2012 that the non-party union that was a major trade union at that time is in the status of the representative bargaining trade union.

2) Determination

Article 14-7(5) of the Enforcement Decree provides, “The base date for confirming the number of union members shall be the date when the name, etc. of a trade union requesting the negotiation is publicly announced pursuant to Article 14-5(1).” Article 14-5(1) of the Enforcement Decree provides, “Where an employer requests the negotiation pursuant to Article 14-3(1), an employer shall publicly announce the date seven days from the date when such request is made and notify the trade union requesting the negotiation pursuant to Articles 14-2 and 14-4 on the day following the expiration of the period for public announcement, and shall publicly notify the matters prescribed by Ordinance of the Ministry of Employment and Labor, such as the name of the trade union requesting the negotiation, and the number of union members as of the date when the request for the negotiation was made, for five days.” Accordingly, the date of public announcement of public announcement of the fact of requesting the negotiation of the trade union shall be eight days after the expiration of seven days from the day after the date of public announcement of the fact

However, in a case where an employer has made a final announcement on the eightth day above without a trade union’s final announcement, the validity of such final announcement should be set aside, and the base date for determining a major trade union should not be “the date on which the final announcement was made,” but “the date on which a trade union should have made the final announcement.” This is because when the base date for determining a major trade union is determined depending on the time when a trade union is a major trade union, and the base date can be determined strictly as a specific date. If an employer uses the date of the actual final announcement as the base date, it is possible for the employer to set the base date for determining a major trade union arbitrarily, and ultimately, there is a problem of equity between trade unions.

In the instant case, the notice of the request for bargaining by February 23, 2012 and the notice of confirmation by March 5, 2012 cannot be deemed null and void as seen earlier. However, in principle, according to the legal text, the notice of the request for bargaining should be the period from February 23, 2012 to February 29, 2012. The notice of the request for bargaining should be the period from February 23, 2012 to February 29, 2012. The notice of confirmation should have been made on March 1, 2012, the day following the expiration of the notice of the request for bargaining. As such, the base date for determining a major trade union shall be March 1, 2012.

Comprehensively taking account of the evidence No. 5 and evidence No. 9, the Plaintiff’s number of union members at the time of March 1, 2012, and the number of union members of the non-party union was 332, and 166. Thus, the Plaintiff constitutes a major trade union under Article 14-7(1) of the Enforcement Decree.

E. Sub-committee

Ultimately, the plaintiff is in the position of representative bargaining trade union for the conclusion of wages and collective agreements in 2012 against the defendant, and there is a benefit to seek confirmation as long as the defendant contests this.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

[Attachment Form 7]

Judge Lee Jin-young (Presiding Judge)

(1) On February 23, 2012, the Defendant announced the Plaintiff’s request for collective bargaining on February 23, 2012 and announced the base date for the period during which other trade unions may request collective bargaining on February 23, 2012. However, since the clerical error or error in February 24, 2012 was a practical error, it is difficult to change the last day of that period on March 2, 2012.