[Plaintiffs, Appellants] Plaintiff 1 and 1 other (Attorneys for the Plaintiffs: Duksoo Joint Law Office, Attorneys Kim Chang-guk and 5 others)
[Defendant, Appellee] Defendant Corporation (Attorney: Ju Wan)
[Judgment Below] Seoul High Court Judgment rendered January 8, 1999, Case No. 98Na14469
[Order]
All appeals are dismissed.
The costs of the appeal shall be borne by the Plaintiffs.
[Reasoning] The grounds of appeal are examined as follows.
1. As to the grounds of appeal concerning the gambling activity portion
Upon examining the reasoning of the judgment below in light of the record, the court below found that the Plaintiffs, on numerous occasions over a long period of time, engaged in gambling such as billiards or hwatu (Korean playing cards) during working hours, thereby causing poor sales performance and disruption of company discipline. Based on this, the court below's determination that such conduct by the Plaintiffs constituted "disruption of discipline within the company through gambling, etc.," one of the grounds for disciplinary action under Article 54 of the Defendant Company's collective agreement, is acceptable, and there is no illegality therein, such as a violation of the rules of evidence or a misunderstanding of the principles of interpretation of collective agreements, as pointed out in the grounds of appeal. All grounds of appeal on this point are rejected.
2. As to the grounds of appeal concerning the sit-in occupation portion
In order for an employee's conduct to constitute a legitimate labor dispute act, first, the subject thereof must be one capable of being a party to collective bargaining; second, the purpose must be legitimate, being related to collective bargaining and aimed at maintaining or improving working conditions; third, the timing and procedure must be legitimate in accordance with statutory provisions; and fourth, the method and manner must fall within a legitimate scope, not involving violence, destructive acts, or other conduct bearing an anti-social character (see Supreme Court Decision 91Do324 rendered May 24, 1991; Supreme Court Decision 95Do1959 rendered January 26, 1996, etc.).
According to the reasoning of the judgment below and the record, the "Yongsan Branch Defense Emergency Countermeasures Committee," which was the subject of the sit-in occupation at issue in this case, was not an organization lawfully established through proper procedures as a party to a labor dispute act, but merely a voluntary organization composed of some employees of the Defendant Company's Yongsan Branch, including the Plaintiffs. Furthermore, in conducting this sit-in occupation, the lawful procedures such as filing a report of the occurrence of a labor dispute were not followed, and the method and manner thereof were such that, by mobilizing a large number of people using physical force, the entire Yongsan Branch office was exclusively occupied for a prolonged period, during which the transfer of company facilities and equipment was refused, and managers were subjected to insulting behavior including vulgar language and abuse. In light of the foregoing, the sit-in occupation conducted by the Plaintiffs as members of the Yongsan Branch Defense Emergency Countermeasures Committee cannot be deemed a legitimate labor dispute act possessing social reasonableness, whether in terms of its subject and procedure, or in terms of its method and manner.
Meanwhile, as pointed out in the grounds of appeal, Article 32, Item 2 of the Defendant Company's collective agreement provides that "the Company shall agree with respect to the transfer of union members between branches, and where redeployment of personnel is necessary due to the establishment or closure of a branch or business office, the Company shall consult while giving maximum respect to the individual's own wishes." However, the purport of this collective agreement provision is merely that, as a general principle, the transfer of union members between branches shall be conducted by agreement with the union, but this does not apply to transfers of union members that are unavoidably conducted due to branch closures and the like; provided, however, that even in such cases, the Company must redeploy union members while giving maximum respect to the individual's wishes, such as through sufficient consultation with the individual concerned. This provision does not mean that the branch closure itself must be preceded by prior agreement or consultation with the union or union members. Therefore, even if the Defendant Company's branch closure at issue in this case was carried out without prior agreement or consultation with the union or the Plaintiffs, this cannot be deemed a violation of the collective agreement.
According to the facts lawfully established by the court below, the primary purpose of the sit-in occupation at issue in this case was to protest against the Defendant Company's branch closure measure and to have that measure itself withdrawn. Given that, as noted above, the Defendant Company did not violate the collective agreement in connection with the branch closure measure, the sit-in occupation aimed at withdrawing the branch closure measure itself was directed at a matter falling within the scope of the management's managerial authority, and thus cannot be deemed legitimate even in terms of its purpose.
Although the court below did not expressly rule on the Plaintiffs' assertion that the sit-in occupation at issue in this case was a legitimate labor dispute act protesting the Defendant Company's violation of its obligation to consult or agree under the collective agreement, the court below's determination that the Defendant Company's disciplinary dismissal of the Plaintiffs was legitimate is deemed to include, by implication, the rejection of the Plaintiffs' aforementioned assertion. Therefore, it cannot be said that the court below failed to render a judgment on this point, nor can it be said that the court below erred in its understanding of the legal principles concerning the effect of a violation of the obligation to consult or agree under a collective agreement, or that it violated relevant Supreme Court precedents. The Supreme Court precedents cited in the grounds of appeal are not appropriate to be invoked in this case. All grounds of appeal on this point are likewise rejected.
3. As to the grounds of appeal alleging abuse of discretionary authority
Since the Defendant Company's branch closure measure is a matter falling within the scope of the management's managerial authority, the Defendant Company was not required to reach a prior agreement or consultation with the union or the Plaintiffs regarding it. Accordingly, even if the Defendant Company did not give the Plaintiffs sufficient advance notice prior to the branch closure measure, it cannot be said that the Plaintiffs' sit-in occupation, aimed at having the measure withdrawn, is conduct whose motive should be taken into consideration in the Plaintiffs' favor, nor can it be said that the Defendant Company provided the cause for such conduct.
Accordingly, the court below's determination—having comprehensively considered various circumstances such as the motive, manner, and degree of violation involved in the Plaintiffs' misconduct, and concluding that the Plaintiffs bore attributable fault sufficient to justify termination of the employment relationship, such that there was no illegality in the form of abuse of disciplinary authority or departure from the permissible scope of discretion in disciplinary authority with respect to the respective dismissals of the Plaintiffs in this case—is acceptable, and there is no illegality therein as pointed out in the grounds of appeal. All grounds of appeal on this point are likewise rejected.
4. Therefore, all appeals are dismissed, and the costs of the appeal are to be borne by the Plaintiffs, the appellants, upon the unanimous agreement of the participating Justices, and it is so decided as set forth in the Order.
Supreme Court Justice Jung Gui-ho (Presiding Justice), Kim Hyung-seon, Lee Yong-hoon (Justice in Charge), Cho Moo-je