[Plaintiff, Appellant]
[Defendant, Appellee] Korea Aflied Magnetics Co., Ltd. (Litigation Representative Attorney Kim Kyo-hyeong)
[Judgment Below] Daejeon High Court Decision 95Na267, decided July 25, 1995
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
"Employees of the same kind" who are subject to a collective agreement pursuant to Article 37 of the Labor Union Act (노동조합법) refers to those persons for whom the application of the relevant collective agreement is anticipated under the provisions of that agreement (see this Court's Decision 86Daka2507, decided April 28, 1987).
The court below determined that the Plaintiff, being a person engaged in monitoring or intermittent work, cannot be considered to have work content or form the same as, or similar to, that of production workers who are subject to the collective agreement in this case, and therefore the Plaintiff cannot be regarded as an employee of the same kind as employees to whom the Defendant company's collective agreement applies. This determination follows the above view of this Court and is proper. Furthermore, upon examining the record, it is recognized that the court below's determination—based on the evidence presented, finding the fact that the Defendant company's collective agreement clearly provides (Articles 3 and 4 of the said collective agreement) that employees of departments such as the General Affairs Department, Administration Department, Planning Office (MIS), and Business Department are not eligible for union membership, and that the agreement applies to the company and the union (i.e., union members)—and then concluding that the scope of application of the said collective agreement was not specified, and that the content of the said collective agreement cannot be viewed as applying across all job categories including security guards, is also proper. There is no error therein, as argued in the grounds of appeal, of misunderstanding the legal principles concerning "employees of the same kind" as prescribed in Article 37 of the Labor Union Act, or of misapprehending the facts in violation of the rules of evidence.
Furthermore, the court below found as follows: there is no evidence to show that the Defendant company applied the said wage agreement to employees of the General Affairs Department, Administration Department, Planning Office (MIS), and Business Department who are not eligible for union membership (excluding only security guards including the Plaintiff and boiler operators in the engine room), and paid wages increased accordingly. However, according to the evidence presented, it can be recognized that the Defendant company, with respect to non-union members such as management staff, has separately determined and implemented wage increase rates on April 1 of each year, taking into account the wage increase rate for production workers and individual performance evaluations of each employee, and that in 1992, as a matter of grace, in order to boost the morale of security guards and resolve their grievances, wages were increased and paid at the same rate as for production workers. However, this fact alone cannot be viewed as the Defendant company having retroactively acknowledged that the Plaintiff, too, was a person subject to the said collective agreement or wage agreement. It is further recognized that the Defendant paid overtime allowances for the three days from September 12 to September 14, 1990, and holiday allowances for the five days from October 11 to October 4 of the same month and October 9, but these facts alone are insufficient to recognize that the Defendant acknowledged an obligation to pay the said allowances to the Plaintiff; rather, according to the evidence presented, it is recognized that these were merely temporary payments made by the Defendant as a matter of grace, for the purpose of boosting the morale of security guards during holiday periods and resolving their grievances. Upon comparing and examining the relevant evidence against the record, the above measures taken by the court below are proper, and there is no error therein, as argued in the grounds of appeal, of failing to exhaust the examination of evidence and misapprehending the facts in violation of the rules of evidence.
All the grounds of appeal are without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order, in accordance with the unanimous opinion of the participating Justices.
Justice Lee Yong-hoon (Presiding Justice), Park Man-ho, Park Jun-seo (Justice in Charge), Kim Hyeong-seon