[1] Requirements for establishing unfair labor practices due to the refusal and dismissal of collective bargaining under Article 39 subparagraph 3 of the former Trade Union Act, and standards for determining whether justifiable grounds exist for refusal and delay of collective bargaining

[2] The case holding that the president of a union of the War Commemorative Association does not always constitute an "employer or a person who acts on behalf of the employer" under the proviso of Article 3 (1) of the former Trade Union Act

[3] Whether an unfair labor practice under Article 39 subparag. 4 of the former Trade Union Act is established in a case where the employer’s speech was made and the employer’s intent to control or intervene in the organization or operation of a trade union is acknowledged (affirmative)

[4] The case holding that it is an unfair labor practice under Article 39 subparagraph 4 of the former Trade Union Act where the chairperson of the War Commemorative Association made a statement to the effect that there was a trade union that should not take place due to the nature of the above business meeting, and that there was no reason to supplement the union by open recruitment after receiving a letter of resignation from all employees

[1] Unfair labor practices under Article 39 subparagraph 3 of the former Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996) are established not only where an employer refuses or neglects collective bargaining without any reason, but also where an employer has believed that an employer has a justifiable reason to refuse collective bargaining or has faithfully complied with collective bargaining, and even where an employer has believed that he/she has faithfully complied with collective bargaining, it is determined as an unfair collective bargaining without any justifiable reason. Meanwhile, whether a justifiable reason is justifiable shall be determined depending on whether it is difficult to expect the employer to fulfill the collective bargaining obligation under social norms by taking into account the bargaining right of the trade union, the bargaining time required by the trade union, the negotiation place, the negotiation contents, and its negotiation attitude.

[2] The case holding that although the president of the War Commemoration Service Association and the president of the union has the primary evaluation of Grade 6 or lower staff members who are the subordinate officers of the Department of Arts, the president of the union shall command its subordinate officers to the Department of Arts and Arts, and the chief of the union shall ultimately belong to the vice president, and the authority and responsibility of the division's evaluation authority and the direction of its subordinate employees shall not be only to assist the director, and the above president shall not be delegated with the authority and responsibility of the division's determination of working conditions, such as personnel affairs, wages, welfare, labor management, etc., unless the president of the union is delegated by the War Commemoration Service Association, it shall not be deemed that the above president of the union does not always act on behalf of the employer or the person who always acted on behalf of his interests under Article 3 (proviso) 1 of the former Trade Union Act (repealed by Article 3 of the Addenda of Act No. 524 of Dec. 31, 196).

[3] It is reasonable that an employer has the freedom of speech to express his opinion through a speech, internal broadcast, notice, letter, etc. However, if it is acknowledged that an employer has an intent to control or intervene in the organization or operation of a trade union by taking into account the situation, place, content, method, impact on the operation or activities of a trade union, it constitutes an unfair labor practice under Article 39 subparagraph 4 of the former Trade Union Act (amended by Article 3 of the Addenda of Act No. 5244 of Dec. 31, 1996).

[4] The case holding that it is an unfair labor practice under Article 39 subparagraph 4 of the former Trade Union Act (amended by Act No. 524 of Dec. 31, 1996) to the effect that, in the situation of conflict between the members of the war commemorative association and the pertinent association by filing a complaint with the chairperson of the pertinent business association on the charge of occupational embezzlement, the above chairperson should not neglect from the nature of the organization of the above business association against the transfer personnel, all of us including themselves (the Ministry of National Defense, which is the supervisory authority) is a worker, and there is a limit to the operation of the union, and it is not necessary to supplement the union by receiving a letter of resignation from the former employee because the dispute has been continuously caused, and there is no need to supplement the union by open recruitment

[1] Article 39 subparagraph 3 of the former Trade Union Act (amended by Article 3 of the Addenda of Act No. 5244 of Dec. 31, 1996) (refer to Article 81 subparagraph 3 of the current Trade Union and Labor Relations Adjustment Act) / [2] Article 3 of the former Trade Union and Labor Relations Adjustment Act (amended by Article 3 of the Addenda of Act No. 5244 of Dec. 31, 1996) (refer to Article 2 subparagraph 4 (a) of the current Trade Union and Labor Relations Adjustment Act) / [3] Article 39 subparagraph 4 of the former Trade Union and Labor Relations Adjustment Act (refer to Article 81 subparagraph 4 of the current Trade Union and Labor Relations Adjustment Act before it was repealed by Article 3 of the Addenda of Act No. 5244 of Dec. 31, 1996) / [4] Article 39 subparagraph 4 (refer to Article 4 of the current Labor Union and Labor Relations Adjustment Act) of the former Trade Union Act (amended by Article 52434 of Dec.

[1] Supreme Court Decision 97Do588 delivered on January 20, 1998 (Gong1998Sang, 636) / [2] Supreme Court Decision 88Nu6924 delivered on November 14, 1989 (Gong1990, 51) / [3] Supreme Court Decision 91Nu636 delivered on December 10, 1991 (Gong192, 529) 94Nu301 delivered on December 23, 1994 (Gong195Sang, 691)

War Commemorative Association (Attorney Kim Jong-Un, Counsel for defendant-appellant)

The Chairperson of the National Labor Relations Commission

Seoul High Court Decision 96Gu31842 delivered on April 25, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the rejection of collective bargaining

Unfair labor practices prescribed by Article 39 subparag. 3 of the former Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996; hereinafter referred to as the "Act") are established not only where the employer refuses or neglects collective bargaining without any reason, but also where the employer has believed that the employer has a justifiable reason for refusing collective bargaining or has faithfully complied with collective bargaining, and even where the employer has believed that the employer has faithfully complied with collective bargaining, there is no objective reason and is judged as an unfaithful collective bargaining. Meanwhile, whether the justifiable reason is a justifiable reason should be determined depending on whether it is difficult for the employer to expect the performance of collective bargaining obligations under generally accepted social norms, by taking into account the negotiating authority of the trade union, the negotiation time, the negotiation place, the negotiation contents as required by the trade union

The proviso of Article 3 (1) 1 of the Act prohibits an employer or a person who acts on behalf of the employer at any time in order to secure the independence of a trade union from participating in the trade union. As duly admitted by the court below, the non-party 1, the president of the War Commemorative Association (hereinafter referred to as the "trade union of this case"), who is the president of the War Commemorative Association, shall command its subordinate employees as the junior subordinate officer of the academic department, and shall conduct the first evaluation of its subordinate employees of Grade 6 or below, but the authority and responsibility of the chief as the second subordinate officer shall ultimately belong to the vice chief, and the direction and responsibility of its subordinate employees shall not be limited to assist the chief. If there is no fact entrusted by the plaintiff with the authority and responsibility for determining working conditions, such as personnel affairs, wages, welfare, labor management, etc., the above non-party 1 does not always act on behalf of the employer or at all times as provided for in the proviso of Article 3 (1) of the Act, and therefore, it is justified to deem the plaintiff's above non-party 1 to comply with the request for collective bargaining.

In addition, according to the facts established by the court below, the plaintiff notified the non-party 2, who is the senior labor organization entrusted with negotiations by the union of this case, of the demand for collective bargaining on January 31, 1996 by designating the date as the end of the same month on February 5, 1996, on the ground that the new secretary-general could not fully grasp his duties, and then the union of this case refused further negotiations on the ground that the union of this case was making its own resolution of dissolution on February 23 of the same year. The above resolution of dissolution was already made on February 4 of the same year on the ground that the non-party 2, who was the vice president of the union of this case who had withdrawn from the union of this case, did not meet a quorum, and the postponed special meeting was held on the 22th of the same month after the next day with the help of the union members, such as the chief of the general affairs of the plaintiff on the same day, etc., and the plaintiff's report of dissolution of the special meeting cannot be viewed as null and void by social norms.

Therefore, the court below's decision to the same purport is justified, and there is no error in the misapprehension of legal principles as to unfair labor practices as alleged in the ground of appeal, since the plaintiff's refusal or delay of collective bargaining continued from the time of the first collective bargaining request of the union of this case constitutes unfair labor practices as stipulated in Article 39 subparagraph 3 of the Act, and the court below's decision to the same purport is not erroneous. Thus,

2. As to the intervention in control

It is reasonable that an employer has the freedom of speech to express his/her opinion through a speech, in-house broadcast, notice, letter, etc. However, in cases where the employer recognizes an intention to control or intervene in the organization or operation of a trade union by taking into account the situation, place, content, method, impact on the operation or activities of the trade union, etc., it shall be deemed that unfair labor practices under Article 39 subparag. 4 of the Act have been established (see, e.g., Supreme Court Decisions 91Nu636, Dec. 10, 191; 94Nu301, Dec. 23, 1994).

According to the records, the members of the association of this case filed a complaint with the investigative agency on December 5, 1995 that the president, non-party 3, the representative of the plaintiff, et al., filed with the investigative agency on the charge of occupational embezzlement, and the conflict between the plaintiff and the association of this case is not a criminal issue. In such a situation, the court below is justified in holding that the above non-party 3 did not respond to the transfer of the plaintiff's organization due to the nature of the non-party 3's organization on December 29, 195, and there is a trade union that should not be taken against the transfer of the plaintiff's organization, and all of us including themselves are workers of the National Defense (the supervisory agency), and there is a limit in the operation of the union of this case, and there is no need to supplement them through open recruitment. The court below did not err in the misapprehension of legal principles as to the acts of the association of this case by clearly denying the attitude of the association of this case and impairing the status of the union's employees.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeong Jong-ho (Presiding Justice)