[1] The meaning of "worker of the same kind" subject to the collective agreement under Article 35 of the Labor Union and Labor Relations Adjustment Act

[2] Whether a collective agreement is applicable to all workers in general service who do not join a trade union without distinguishing types of occupation such as technical and general service under the collective agreement, in cases where all workers in the workplace join a trade union as a member of the trade union and the number of union members constitutes a majority of union members (affirmative)

[1] The "worker of the same kind" subject to the application of a collective agreement under the provisions of Article 35 of the Labor Union and Labor Relations Adjustment Act refers to a person who is expected to be subject to the agreement under the provisions of the collective agreement in question, and in case where the scope of application of the collective agreement is not specified or the provisions of the agreement are commonly applied across all types of occupation, all workers of the same kind in the workplace without distinguishing the types of occupation.

[2] If all workers in the workplace are allowed to join a trade union as a member of a trade union without classifying types of occupation, such as technical and general workers, as long as they do not correspond to employers under the provisions of the collective agreement, they also fall under "workers in the same kind" under Article 35 of the Trade Union and Labor Relations Adjustment Act, and as long as the number of union members fell under the majority of union members, collective agreements shall apply to general service workers regardless of whether they actually join a trade union.

[1] Article 35 of the Labor Union and Labor Relations Adjustment Act / [2] Article 35 of the Labor Relations Adjustment Act

[1] [2] Supreme Court Decision 92Nu13189 delivered on December 22, 1992 (Gong1993Sang, 625) Supreme Court Decision 95Da39618 delivered on December 22, 1995 (Gong1996Sang, 505) Supreme Court Decision 95Da4056 delivered on April 25, 1997 (Gong197Sang, 1555) Supreme Court Decision 96Da13415 delivered on October 28, 1997 (Gong197Ha, 3620)

Plaintiff

The Chairman of the National Labor Relations Commission

El Branch Electric Co., Ltd. (Attorney Jeon Soo-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 98Nu14183 delivered on May 27, 1999

Each appeal is dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal by the Defendant and the Intervenor are examined together.

As to the application of collective agreements

The term "worker of the same kind" subject to the application of a collective agreement under the provisions of Article 35 of the Labor Union and Labor Relations Adjustment Act refers to a person who is expected to be subject to the agreement under the provisions of the collective agreement in question. If the applicable scope of the collective agreement is not specified, or the provisions of the agreement are commonly applied across all types of occupation, all workers in the workplace constitute the same kind of worker without distinguishing the types of occupation (see, e.g., Supreme Court Decisions 92Nu13189, Dec. 22, 1992; 95Da4056, Apr. 25, 197).

The lower court determined that the provisions on the procedure for dismissal of collective agreements apply to the Plaintiff, regardless of whether the Plaintiff actually joined a trade union, as long as all workers in the workplace can join the trade union and be subject to collective agreements without distinguishing the types of occupation, such as technical and general workers, and thus, the Plaintiff’s workers in general service, such as the Plaintiff, also constitutes workers of the same kind as those in the same legal provision, insofar as the number of union members fell under a majority of union members who are ordinarily employed.

In light of the records and the above legal principles, the above fact-finding and judgment of the court below are just, and there is no illegality such as evading the judgment of the defendant and the defendant joining the defendant or misunderstanding of legal principles.

This part of the grounds of appeal is rejected.

As to the review procedure

In accordance with records, the proviso of Article 31 (2) of the collective agreement of the intervenor company provides that a member who has an objection to disciplinary action may file a request for review within five days, and the company shall immediately comply with the request for review. As to the general disciplinary procedure, Articles 22 and 23 of the Members Disciplinary Rules provide that a member who has an objection to disciplinary action shall file a request for review by clearly stating in writing the matters of disciplinary action. Thus, the plaintiff's submission of a written objection to disciplinary action on February 3, 1998 shall be deemed legitimate request for review in accordance with the provisions of the Members Disciplinary Action Act.

In addition, even if the plaintiff obtained an opportunity to vindicate in the Disciplinary Committee and did not appear in the court of this case, the intervenor company's unlawful assertion that did not go through the review procedure, such circumstance alone cannot be deemed as contrary to the principle of good faith.

The judgment of the court below to the same purport is just, and there is no error of misconception of facts against the rules of evidence.

This part of the grounds of appeal is rejected.

Conclusion

Therefore, each appeal shall be dismissed, and all costs of appeal shall be assessed against each appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Kim Jong-sik (Presiding Justice)