[1] Requirements for workers' industrial action to be lawful and the criteria for determining the legitimacy of the industrial action in a case where there are many purposes pursuing the industrial action, and some of them are not legitimate

[2] Where a trade union by region, industry, and business type plans an industrial action, the scope of the union members subject to the pro-con voting for the industrial action

[3] In a case where an industrial trade union plans an industrial action limited to the intra-company subcontractor association, which is not a general strike, and a pro-con voting for union members belonging to the branch, and an industrial action is conducted with the consent of a majority of union members, and a defective business owner newly employs a new worker during the industrial action period, the case reversing the judgment below which held that new employment of an

[1] In order for a workers' industrial action to be lawful, first, the subject of the industrial action shall be the one who can be the one of the collective bargaining, second, the purpose of the industrial action shall be to create autonomous negotiations between the labor and management to improve working conditions, third, the industrial action shall commence when the employer refuses the collective bargaining with respect to the specific demand for the improvement of working conditions of the workers, and barring special circumstances, shall go through the procedures prescribed by the law, such as the decision of the union members' consent, and fourth, the means and methods must be in harmony with the employer's property rights, as well as the exercise of violence. If the industrial action is undertaken for a variety of purposes and some of them are not legitimate, the propriety of the purpose of the dispute shall be determined by the legitimacy of the main or genuine purpose, and if it is deemed that the industrial action did not take place if it was excluded from the unfair requirements, the entire industrial action shall

[2] Article 41(1) of the Trade Union and Labor Relations Adjustment Act, which provides that an industrial action is conducted as a procedural requirement for workers to become a justifiable act, requires the consent of the union members by direct, secret, and unsigned ballot, to promote the autonomous and democratic operation of the trade union and to ensure more careful and more careful decision of the union members regarding the commencement of the industrial action so that the workers involved in the industrial action do not suffer any disadvantage in relation to the legitimacy of the industrial action after the fact. In light of such purport, in the case of the trade union by region, industry, and industry, unless the total strike is conducted, the industrial action shall be deemed lawful if the majority of the union members belonging to the relevant branch or sub-branch that planned the industrial action are approved.

[3] In a case where an industrial trade union plans an industrial action limited to the intra-company subcontractor association, which is not a general strike, and a pro-con voting for union members belonging to the branch, and an industrial action is conducted with the consent of a majority of union members, and a defective business owner newly employs a worker during the dispute period, the case reversing the judgment of the court below that the industrial action does not constitute an unfair labor practice on the ground that the procedure and purpose of its

[1] Article 41(1) of the Trade Union and Labor Relations Adjustment Act / [2] Article 41(1) of the Trade Union and Labor Relations Adjustment Act / [3] Articles 41(1) and 43(1) of the Trade Union and Labor Relations Adjustment Act

[1] Supreme Court Decision 91Nu5204 delivered on January 21, 1992 (Gong1992, 927) Supreme Court Decision 2004Du10852 Delivered on April 29, 2005 / [2] Supreme Court Decision 2004Do4641 Delivered on September 24, 2004 (Gong2004Ha, 1786)

Plaintiff 1 and one other

The Chairman of the National Labor Relations Commission

Intervenor 1 Trade Union

Intervenor 2

Seoul High Court Decision 2006Nu27238 decided June 1, 2007

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

The grounds of appeal are examined.

1. In order for an industrial action of workers to be lawful, the first main body of the industrial action shall be the person who can be the person who conducts the industrial action. Second, the purpose of the industrial action shall be to create autonomous negotiations between the labor and management to improve working conditions; third, the industrial action shall be commenced in accordance with the procedures stipulated by law, such as the consent and decision of the union members, unless there are special circumstances; fourth, the industrial action shall be in harmony with the employer's property rights and shall not constitute the exercise of violence; fourth, if the means and method of the industrial action are various purposes of the industrial action and some of the industrial action are not legitimate, the propriety of the industrial action shall be determined by the legitimacy of the main and genuine purpose of the industrial action; if it is deemed that the industrial action did not meet the unreasonable requirements, the entire industrial action shall not be justified (see Supreme Court Decisions 91Nu5204, Jan. 21, 1992; 2009Du1482, Apr. 29, 2005).

2. The judgment of the court below and the judgment of the court of first instance, which cited some of the above facts, are based on the premise that an industrial action is legitimate. (1) An industrial action is conducted by an industrial union member belonging to an individual company and an industrial union under Article 41 (1) of the Trade Union and Labor Relations Adjustment Act. Although the industrial action is conducted only by individual company members, the industrial action is conducted in accordance with the agreement of the first five members of the industrial action, since the industrial action was conducted by the first five members of the industrial action of this case, the industrial action of this case was conducted by the first five members of the industrial action of this case without the consent of the second members of the industrial action of this case and the fourth members of the industrial action of this case, the industrial action of this case was conducted by the first five members of the industrial action of the industrial union and the fourth members of the industrial action of this case, the industrial action of this case was conducted by the first five members of the industrial union and the third members of the industrial action of this case without the consent of the second members of the industrial action of this case and the first members of the industrial action of this case.

However, we cannot accept the above determination by the court below for the following reasons.

The following circumstances may be revealed even based on the facts acknowledged in the judgment of the court below and the judgment of the court of first instance, which partially accepted by the court below. The Intervenor Union sent 2004 wages and collective agreement to the subcontractor, and subsequently delegated the authority to conduct collective bargaining with the subcontractor in 204 to the president of the branch of the intra-company subcontractor. The intra-company subcontractor association first promoted collective bargaining with the subcontractor, but failed to comply with the agreement by changing the form of individual bargaining into the form of collective bargaining, but did not reach this conclusion. The Intervenor Association failed to enter into a collective agreement with the subcontractor. The Intervenor’s labor dispute mediation request was made two times for the intra-company subcontractor to enter into the industrial action on September 9, 200 and 100 after the signing of the collective agreement. The Intervenor’s collective agreement was signed on September 10, 204 with the labor dispute mediation report prepared by 103 members of the Labor Relations Commission and 24 members of the Labor Relations Commission, and the collective agreement was signed on September 9, 2004.

Examining these circumstances in light of the legal principles as seen earlier, in the instant case, the Intervenor Union planned an industrial action that was limited to the intra-company subcontractor association, not the general strike. As such, the Intervenor Union decided that the industrial action of this case is not justifiable on the premise that the industrial action of this case is conducted for each partner company, not the intra-company subcontractor association, but the union members of the intra-company subcontractor association, by obtaining the consent of a majority of its union members, as a result of the pro-con voting on the industrial action of this case, and duly implemented the procedures provided for in Article 41(1) of the Trade Union and Labor Relations Adjustment Act by obtaining the consent of a majority of union members. On the contrary, the first reason behind the pro-con voting on the industrial action of this case, the intra-company subcontractor association has promoted collective bargaining, and the intra-company subcontractor association has been conducting individual bargaining for each partner company before the pro-con

In addition, according to the records, the intervenor union asserts that 102 members of the intra-company subcontractor association including the dismissed at the time of the pro-con voting on the industrial action of this case are 102 members of the intra-company subcontractor association, and only some of the persons listed in the list of the dismissed members of the intra-company subcontractor association (Evidence No. 7) are listed in the electoral register (Evidence No. 8) which is a separate document. On the contrary, the court below should have examined whether at the time of the pro-con voting on the industrial action of this case the persons listed in the list of the dismissed members of the intra-company subcontractor association maintain

In addition, among the industrial action in this case, the members of ○ enterprise engaged in the industrial action on November 30, 204, in accordance with the guidelines for the circular radio frequency business for each company at the intra-company subcontractor to assist members of △△ enterprise in the industrial action. In a case where the intra-company subcontractor did not resolve the surplus problem related to the working conditions of △ enterprise, which is another intra-company subcontractor, on November 23, 2004, the industrial action in this case posted a written notice to the subcontractor that all members of the intra-company subcontractor refuse to work on December 25, 2004, and even after several times, the industrial action in this case was conducted by the intervenor association on November 19, 2004, without considering the circumstances that the industrial action in this case was conducted until the conclusion of the industrial action in this case, the industrial action in this case’s report on the industrial action in this case, which was submitted on November 30, 2004, should not be considered as the mere purpose of the industrial action in this case’s collective agreement.

Therefore, the judgment of the court below that the industrial action in this case was not justified in its procedure and purpose, and that there is no room for such an action without examining further whether the plaintiffs' new employment constitutes unfair labor practices, is erroneous in the misapprehension of legal principles as to the legitimacy of industrial action and unfair labor practices, which affected the conclusion of the judgment. The intervenor union's ground of appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)