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

[Defendant-Appellant] Labor Union Co., Ltd. and one other (Attorney Cho Jong-won et al., Counsel for defendant-appellant)

March 29, 2016

1. Ascertainment that the establishment of a trade union against Defendant UPS Corporation is null and void;

2. The plaintiff's claim against the defendant Yusung Corporation is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant UPP trade union is borne by the said Defendant, and the part arising between the Plaintiff and the Defendant UPP Co., Ltd.

○ The primary purport of the claim

As to the trade union of defendant UPS Co., Ltd., the above paragraph (1) is the same.

○ Preliminary purport of claim

As to the defendant Yusung Corporation, the plaintiff is in the position of representative bargaining trade union in 2012 regarding the wage and collective agreements for the defendant Yusung Corporation.

1. Basic facts

A. Defendant Yusung Company (hereinafter “Defendant Company”) is a company that engages in the manufacture and sales of parts of various internal combustion-related organizations. The Plaintiff is a nationwide industrial trade union, and the Plaintiff has established △△ Branch (hereinafter “Plaintiff Labor Relations Branch”) in which the employees of the Defendant Company’s △△ Factory are affiliated with the Defendant Company’s production workers, and △△△ Branch (hereinafter “Plaintiff Labor Relations Branch”) in which the employees of the Defendant Company’s △△ Factory production workers are affiliated with the Defendant Company’s △△ Branch (hereinafter “Plaintiff Labor Relations Branch”; and the term “Plaintiff Labor Relations Branch” and the △△ Branch and the △ Branch.

B. The amendment of the Trade Union and Labor Relations Adjustment Act (hereinafter “Trade Union Act”) led to multiple trade unions in one workplace from July 1, 201, and the Nonparty, etc., working for the Defendant Company, submitted a report on the establishment of a trade union in the Daejeon Regional Employment and Labor Agency (hereinafter “Defendant Trade Union”) to the Daejeon Regional Employment and Labor Agency on July 15, 201, and issued a certificate of report on establishment on the 21st of the same month, and Defendant Trade Union was established.

[Ground for recognition] Unsatisfy

2. The plaintiff's assertion

A. The primary claim against Defendant Trade Union

Since Defendant Labor Union did not have the independence and independence as a trade union in its establishment and operation, the establishment of Defendant Labor Union is null and void. Nevertheless, Defendant Labor Union is engaged in activities as a trade union, such as entering into a collective agreement with Defendant company as a representative bargaining trade union, while engaging in the activities of Defendant Labor Union as a representative bargaining trade union. Accordingly, the Plaintiff is seeking a judgment that the establishment of Defendant Labor Union is null and void.

B. Preliminary claim against the Defendant Company

If the establishment of the Defendant Trade Union does not become null and void, it is sought to confirm that the Plaintiff Trade Union is a representative bargaining trade union that can enter into a wage and collective agreement with the Defendant Company in 2012 as a majority union in the Defendant Company.

3. Judgment as to the main claim

A. Determination as to the defense prior to the merits

1) Details of the assertion by Defendant Trade Union

The instant lawsuit pertains to the establishment of Defendant Trade Union and Labor Relations Adjustment, which results in the formation of a formative effect of extinguishing the validity of wages and group negotiations, etc. thereafter retroactively, and thus constitutes a lawsuit for formation. The lawsuit for formation is permissible only in cases where there are grounds under the relevant Acts and subordinate statutes, such as the Trade Union Act, etc., and there are no grounds for filing a lawsuit by

On the other hand, the plaintiff's union can achieve its purpose by seeking the revocation of the report on establishment of the union and the issuance of a certificate to the defendant union by the head of the Daejeon District Employment and Labor Office as an administrative litigation. Thus, the lawsuit of this case has no interest in confirmation.

2) Determination

Even if the Plaintiff’s claim was accepted, which affected the validity of the existing wage and collective agreement, etc. concluded by the Defendants, this is only a natural effect according to the legal relationship that is null and void as a matter of course from the beginning, and it does not change the above legal relationship only according to the judgment of this case. Thus, the instant lawsuit cannot be

Meanwhile, although a lawsuit for confirmation is permitted to eliminate risks or apprehensions with respect to the current rights or legal status, even in the past legal relations, if it is affected by the current rights or legal status, and it is deemed as a valid and appropriate means to obtain a judgment to confirm the legal relations in order to eliminate risks or apprehensions with respect to the present rights or legal status (see, e.g., Supreme Court Decisions 2012Da17721, Oct. 17, 2013; 2010Da36407, Oct. 14, 2010).

As alleged in the Defendant’s labor union, the Plaintiff may seek revocation of the report on establishment of the Defendant’s labor union against the head of the Daejeon District Employment and Labor Office. However, even if the above administrative litigation has become final and conclusive, its effect is merely to cancel the disposition to issue a certificate of establishment report on the Defendant’s labor union by the head of the Daejeon District Employment and Labor Office, and it does not cause or modify a legal relationship between the Plaintiff and the Defendant’s labor union. In addition, if the establishment of the Defendant union is null and void, only the Plaintiff’s labor union has the authority to conduct collective bargaining and conclude a contract pursuant to the Trade Union Act as the Defendant company’s labor union. As long as the Defendant’s labor union has been engaged in its external activities, there is a benefit to seek confirmation to nullify the establishment of the Defendant’s labor union in order to eliminate risks or anxiety

Therefore, the previous defenses of Defendant Trade Union cannot be justified.

B. Determination as to whether the establishment of Defendant Trade Union was null and void

1) Relevant legal principles

In the Trade Union Act, “trade union” means an organization or associated organization organized by workers as its principal agent for the purpose of maintaining and improving working conditions and promoting the improvement of workers’ economic and social status (Article 2 subparag. 4); where an employer or a person who acts on behalf of the employer at all times receives assistance from the employer, the principal part of expenses shall not be considered as a trade union (Article 2 subparag. 4), and where an employer grants assistance from persons other than workers, etc., the establishment of a trade union shall not be considered as a trade union (Article 2 subparag. 4). In addition, the Trade Union Act provides that a person who intends to establish a trade union shall report his/her establishment with the bylaws containing certain matters (Article 10(1)); “Where a trade union to be established falls under any of the items of Article 2 subparag. 4 of the Trade Union Act, an administrative agency shall return its establishment report if the trade union so established falls under any of the items of Article 2 subparag. 4 of the Trade Union Act (Article 12(3) of the Trade Union Act).

(ii) the facts of recognition

A) The Plaintiff’s union and the Defendant’s Company concluded the “Agreement on the Improvement of the 2009 Branch Wages and Work-Based Systems,” which included the provision that “to promote the two-way system on January 1, 201, taking into account economic situation and all the relevant conditions, with the aim of adopting the two-way system” on January 13, 201, and concluded the “Agreement on the Improvement of the 2009 Branch Wages and Work-Based Systems” from January 18, 201, but did not derive any agreement.

B) Accordingly, the Plaintiff Trade Union and Labor Relations Adjustment conducted various industrial actions with a view to accomplishing the introduction of the weekly 2 comparison system and monthly rate system, and the Defendant Company took part in a lock-out corresponding thereto. In the process, the Plaintiff Trade Union and Labor Relations Adjustment did not comply with the procedures prescribed by the Trade Union Act, or carried out violent industrial actions (including partial illegal parts). In relation to this, the Plaintiff Trade Union and Labor Relations Adjustment took part of the lock-outs of the Defendant Company’s company, which took part in which the Plaintiff Trade Union and Labor Relations Association members and the Defendant Co., Ltd. were to take part of the lock-out.

C) Since April 201, the Defendant Company received advice from the labor law firm ○○ consulting (hereinafter “○○ consulting”) as the labor-management rules related to the introduction of the weekly paid-in partnership system.

D) As a response strategy for the company, the term “an agreement for stabilizing labor-management relations” that ○○ Consulting sent to the Defendant company includes the content of “the launch of hot and rational labor-management 200” as a core task.

E) The documents stating “procedures for the establishment of a trade union” sent by ○○ Consulting to the Defendant company include the following contents:

본문내 포함된 표 2. 구체적 실행방안 (1) 개요 ○ 2011. 7 1. 이후 사업장 단위 복수노조 설립이 허용됨에 따라 7. 1. 이후 노조 설립이 가능함 ○ 따라서 2011. 7. 1. 이전 발기인들이 주도가 되어 가입원서를 교부하여 가입원서를 받고 2011. 7. 1. 노조설립 총회를 개최하여 노조설립 결의 ⇒ 규약 제정 ⇒ 임원 선출 ⇒ 노조설립 신고를 하면 됨. ○ 다만, 2011. 7. 1. 이후 복수노조 사업장의 경우 교섭창구 단일화 절차를 밟아야 하며 이를 통해 교섭대표노조를 선출하고 교섭대표 노조가 향후 2년간 교섭대표노조로서 권한을 행사할 수 있는바, 최대한 많은 수의 조합원을 가입시켜야 함. - 노조 설립 이후에도 지속적으로 조합가입을 독려함. (2) 주요일정 시기 내용 비 고 사전 준비 설립총회 전 · 설립총회 관련 주요 인원 선정(위원장, 사무국장, 사회자, 서기, 검표위원 등) · 조합 가입원서 배부 및 가입(별첨 1 참고) · 회의 시나리오 사전 작성(별첨 2 참고) · 총회 개최 전 규약 내용 확정(별첨 3 참고) · 설립신고서 내용 사전 작성(별첨 4 참고) · 아산시청, 노동부 천안지청 등 유관기관 사전 대책 D-day (7. 1.) 설립총회 개최 및 신고 · 참석자 명단 작성(별첨 5 참고) · 직접·비밀·무기명 투표 · 총회 회의록 작성 · 아산시청에 신고 이후 후속조치 · 교섭창구 단일화 대응 · 노노갈등 봉합 (3) 점검사항 ○ 총회 개최 전 - 노조규약 마련 : 내용은 기존 규약을 개정하거나 타 노조 규약 참고 - 임원 구성 계획 완료 - 설립신고서 작성 : ▲ 회의록, ▲ 노조 규약, ▲ 임원의 성명과 주소록 등 구비 서류 사전 작성 - 총회 당일 시나리오 작성 : 성원수를 제외한 기타 사항을 모두 회의록 형식으로 작성하여 총회 당일날 시나리오대로 진행 ○ 총회 개최시 - 참석자 명단 작성 및 서명 받기 - 의결정족수 확인 ○ 설립신고시 - 사전 접촉된 아산시청 담당자에게 설립신고서 접수 - 3일내 신고증 교부될 수 있도록 사전 대책

F) The ○○ Consulting and the Defendant Company held a strategic meeting on a regular and irregular basis before and after the establishment of the Defendant Trade Union. The main contents discussed at the above strategic meeting are as shown in the attached Table.

G) The various documents sent by ○○ Consulting to the Defendant Company before and after the establishment of the Defendant Trade Union upon the Defendant Company’s request for advice is indicated as follows: (a) various measures to secure the number of the members of the Defendant’s Trade Union, such as whether the Plaintiff’s Trade Union members and the members of the Defendant’s Trade Union are differentiated in the determination of disciplinary action; (b) whether the Plaintiff’s Trade Union and the members of the Defendant’s Trade Union are differentiated in wage negotiations; (c) analysis of the unexpected causes for securing the members of the Defendant’s Trade Union; and (d) measures to ensure the stability of the Defendant’s Trade Union. The contents written in each of the above documents

H) The Defendant Company prepared the scenarios of the general meeting for the establishment of the Defendant’s labor union in accordance with the advice of the ○○ Council through various documents and strategic meetings as seen earlier, and the general meeting for the establishment of the Defendant’s labor union held on July 14, 201 was held in accordance with the scenarios prepared in advance. As seen earlier, the Defendant Company received the report on the establishment of the Defendant’s labor union on July 15, 201, which is the day following the above general meeting. The said report and the bylaws attached thereto, as discussed earlier, were prepared by the Defendant Company as discussed at the strategic meeting.

I) On July 22, 2011, following the day on which Defendant Trade Union was issued a certificate of reporting the establishment of the union, “the declaration of union normalization” was held as discussed in advance at the above Strategic Conference. On July 25, 2011, the Defendants held “the declaration form for union members,” and exchanged “the declaration form for union members,” “the declaration form for union members,” and the above “the declaration form for union members,” which was discussed at the above strategic meeting, is below the example of “the declaration form,” which was discussed at the above strategic meeting.

(j) After the establishment of Defendant Trade Union, as discussed earlier at the strategic meeting, the Defendant Trade Union established the instant strategic meeting, in order to allow Defendant Trade Union to become a representative bargaining trade union in 201 as a majority union in the Defendant’s company, the Defendant Trade Union was allowed to individually meet its employees and encourage or end up joining the Defendant Trade Union. However, as in the wage negotiation in 2011, Defendant Trade Union did not become a majority union in 201, the Defendant Company consented not to take procedures for the simplification of bargaining windows as discussed earlier at the strategic meeting (proviso of Article 29-2(1) of the Trade Union Act), the Plaintiff Trade Union and the Defendant Trade Union respectively, and the Defendant Trade Union and the Defendant Trade Union, respectively, took part in the wage negotiation in 2011.

(k) The Defendant Company, as discussed in the 201-201 wage negotiations as above, discussed as a way to secure the members of the Defendant’s Trade Union at the strategic meeting prior to the commencement of the negotiations on wages with the Defendant’s Trade Union, while the negotiations on wages with the Plaintiff’s Trade Union did not reach an easily reasonable agreement.

(l) On November 17, 2011, Defendant Trade Union held a regular meeting of the Central Labor Relations Commission. On November 24, 2011, Defendant Trade Union published the Central Labor Relations Commission’s “mutual career”; and on November 29, 2011, conducted labor training for union members. In addition, on December 8, 2011, Defendant Trade Union opened the Central Labor Relations Commission’s website, allowing Defendant Trade Union members to join online, and on December 9, 201, Defendant Trade Union held each Defendant Labor Relations Commission’s news at the △△ Factory, respectively. The series of the aforementioned Defendant Trade Union’s news corresponds to the contents discussed in the Central Labor Relations Commission’s strategic meeting as a scheme for the labor force and stability of Defendant Trade Union members.

(m) On the other hand, it is clear whether the Defendant’s labor union has been seeking wage negotiations in 2012 and still has secured the status of the majority of labor union, and as discussed in the strategic conference as a way to secure the members of the Defendant’s labor union, the employees of the Defendant’s labor union who did not join any of the labor unions have joined the Defendant’s labor union. Accordingly, the Defendant’s labor union was decided to recognize the Defendant’s labor union as the majority labor union in the process of organizing bargaining windows for wage negotiations in 2012.

n) The representative director and the management officer of the defendant company were indicted for the crime of violation of the Labor Union and Labor Relations Adjustment Act that the act of preparing a report of establishment for the establishment of the defendant labor union, the rules of the union, the minutes of the general meeting, etc., and the act of controlling or participating in the organization and operation of the labor union to the workers of the defendant labor union against the act of joining the defendant labor union (the act of controlling or participating in the organization and operation of the labor union) and currently pending trial (the Daejeon District Court's Incheon District Court's 2013 High Court's 1867, 2015 Highest 507

(o) As above, Nonparty 2, the representative of ○○ Consulting, filed a lawsuit seeking the revocation of the above revocation of the registration on the ground that Nonparty 2, as the Seoul Administrative Court No. 2013Guhap604, the Plaintiff’s advisory act on October 11, 2013, deemed that Nonparty 2’s advisory act on the Defendant Company was lawful and dismissed Nonparty 2’s request on the ground that the above revocation of the registration was lawful (Seoul High Court Decision 2013Nu39011). On July 1, 2014, the above appellate court rejected Nonparty 2’s appeal on the grounds that Nonparty 2’s advisory act on the Defendant Company, etc. violated the law and thus did not separately consider that the above revocation of registration was unlawful.

(p) Meanwhile, around October 201, the Defendant Company filed a claim for damages against the Plaintiff’s union members, who were engaged in an illegal strike, and the head of the Defendant’s union was aware that the said lawsuit will have already been brought before the month when the said lawsuit was brought.

[Ground for recognition] Gap's 5 through 10, 13, 45, 49 through 55, 72, 73, 75 through 91, 93 through 96, 99, 100, 105, 108 through 114, 150, 151, 153, 156 through 167, 169, 169, 170, 177 through 182, 183, 185 through 201, Eul's entries as provided in subparagraph 2, and the purport of the whole pleadings

3) Determination

According to the above facts, the establishment of the defendant's union itself was planned and led by the defendant's company, and all the operation, such as securing of union members, promotion of organization, and stabilization, etc., after its establishment, shall be deemed to have been carried out in a passive manner under the defendant's company's plan. Thus, it is difficult to view that the defendant's union has independence and independence in relation to the defendant's company, which is the employer

Although there is a strong need to form a sound labor-management culture in response to illegal and violent industrial actions by the Plaintiff’s labor union that continued for a long time, certain workers intended to establish a new labor union with the intent of doing so, as in the instant case, the Defendant’s labor union that the Defendant Company, as an employer, was extensively led by the Defendant Company from its establishment to its stability and power after its establishment, cannot be deemed as a labor union established independently and independently under the aforementioned intent.

On the other hand, even if the labor union did not have independence and independence in establishing and stabilizing the labor union, if the labor union satisfies its own independence and independence at any time thereafter and works as a genuine trade union, there is no room to deem that the defect at the time of establishment was cured by being a trade union meeting the requirements under Article 2 subparag. 4 of the Trade Union Act from the time of acquisition of independence and independence. However, in this case, there is insufficient evidence to acknowledge that the fact that the defendant labor union was acting as a trade union with independence and independence by deviating from the intervention of the defendant company, an employer, and there is no other evidence to acknowledge it.

C. Sub-decision

Therefore, since Defendant Labor Union did not meet the requirements of Article 2 subparag. 4 of the Trade Union Act, the establishment of Defendant Labor Union Act is null and void.

4. Judgment on the conjunctive claim

A. Determination as to the defense prior to the merits

1) The defendant company's assertion

In the event that the Plaintiff’s union and Defendant’s union demanded collective bargaining, on February 17, 2012, the Defendant Company publicly announced that Defendant’s union has the authority to negotiate with Defendant Company as its representative as a majority union under the relevant Acts. Accordingly, Plaintiff’s union filed an objection with the Chungcheongnam-nam Regional Labor Relations Commission on February 21, 2012, but was decided by the said Labor Relations Commission that Defendant’s union constitutes a representative bargaining trade union as a majority union on March 12, 2012.

According to relevant laws, the plaintiff's union has filed a petition for review with the National Labor Relations Commission or filed an administrative litigation against the decision of the Chungcheong Regional Labor Relations Commission.

Ultimately, the claim of this case is unlawful as there is no benefit of protection of rights, where special remedy procedures are separately provided.

2) Determination

Even if the plaintiff's union was finally determined in favor of the plaintiff's union by filing an administrative litigation through the review procedure of the National Labor Relations Commission, it only takes effect as a formative effect to revoke the decision of recognition of the majority union of the Labor Relations Commission, which does not immediately lead to the recognition of the status of the representative bargaining trade union as a majority union, and the validity of the decision does not affect between the plaintiff's union and the defendant's company, and therefore, the prior defense of the defendant

B. Judgment on the merits

The Plaintiff’s claim against the Defendant Trade Union is a claim claiming that the establishment of the Defendant Trade Union is null and void, and the claim against the Defendant Trade Union is a claim claiming that the Plaintiff Trade Union is in the position of the representative bargaining trade union in relation to the Defendant Trade Union on the premise that the establishment of the Defendant Trade Union is valid, and both parties are in an incompatible relationship. Thus, the instant lawsuit constitutes a preliminary co-litigation under Article 70(1) of

Thus, in this case where the claim against the primary defendant's labor union against the primary defendant's labor union was accepted, the court must render a decision to dismiss the claim against the primary defendant's labor union as it cannot be said that there is no reasonable ground.

5. Conclusion

If so, the plaintiff's claim against the defendant's labor union is justified, and the claim against the defendant company is dismissed as it is without merit.

(attached Form omitted)

Judges of the Republic of Korea (Presiding Judge)