[Plaintiff, Appellee]
[Defendant, Appellant] Pohang Iron and Steel Co., Ltd. (POSCO) (Attorney Son Jin-gon, counsel for the defendant)
[Judgment Below] Daegu High Court Decision 94Na713 decided February 8, 1995
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Defendant.
[Reasoning]
The grounds of appeal, together with the portion of the supplementary brief on grounds of appeal filed after the statutory period that supplements the grounds of appeal, are examined together.
1. As to Ground 1
"Legitimate acts for the business of a trade union" under Article 39, Subparagraph 1 of the Trade Union Act (노동조합법) generally refers to legitimate activities of a trade union; however, even where an act of a union member is not itself an organizational activity of the trade union carried out pursuant to a resolution or specific instruction of the union, if the act, by its nature, may be regarded as an activity of the trade union, or may be deemed to have received the implied authorization or approval of the trade union, such act of the union member must be regarded as an act for the business of the trade union (see Supreme Court Decision 91Nu4164 decided November 12, 1991; Supreme Court Decision 95Da1323 decided June 13, 1995, etc.).
According to the reasoning of the judgment below, the court below found, based on the evidence cited, as follows. As to the circumstances under which the Plaintiff came to be involved in preparing and distributing leaflets: at a time when the number of union members of the Defendant company's trade union, which had once numbered approximately 20,000, had drastically decreased to only a few dozen, the then trade union, whose regularly elected executive body including the chairman had resigned, was being run under an acting system; against the move by those in the acting leadership to amend the union's bylaws through a yes-or-no vote without discussion among union members, the Plaintiff and several other union members, believing this to be unjust, prepared leaflets mainly addressing the content of the proposed amendment and the problems in the amendment procedure, and distributed them to the Defendant company's employees on the commuter bus on the morning of the scheduled voting day. As to the circumstances under which the written inquiry was made to the Defendant company's top management: at that time, a considerable number of the Defendant company's union members were asserting that they had been pressured by the Defendant company to withdraw from the union and had in fact withdrawn, and, as noted above, the number of union members had drastically decreased and union activities had sharply diminished; when the Defendant company, through its in-house bulletin "Nomu Sosik" (Labor Affairs News), publicized to employees that there were impure elements such as the Sanomaeng (Socialist Workers' League) within the company, the Plaintiff and several other union members who were enthusiastic about union activities regarded this as suppression of the minority union members, and accordingly made a written inquiry stating, "If there is a Sanomaeng organization within the company, disclose its substance and stop the suppression of the minority union members." Having found these facts, the court below determined that, in light of the circumstances of the Plaintiff's distribution of the leaflets, the content of the leaflets, the timing and place of distribution, and the circumstances and content of the written inquiry made to the Defendant company's top management, each of these acts, by their nature, must be regarded as "acts for the business of a trade union" under Article 39, Subparagraph 1 of the Trade Union Act.
Examining the relevant evidence in light of the above Supreme Court decision, the above findings and determination of the court below are all acceptable, and there is no illegality therein, as argued in the grounds of appeal, in the form of a violation of the rules of evidence or a misunderstanding of the legal principles concerning Article 39, Subparagraph 1 of the Trade Union Act.
This ground of appeal is without merit in its entirety.
2. As to Ground 2
The court below determined as follows. Under Article 25, Subparagraph 3 of the collective agreement concluded between the Defendant company and the Defendant company's trade union, in connection with Article 39, Subparagraphs 1 and 5 of the Trade Union Act, where a union member is to be subjected to a severe disciplinary action of dismissal or greater, if the union member requests a re-examination (jaesim), three representatives designated by the union must be appointed as members of the personnel committee. Since, among the grounds for disciplinary action against the Plaintiff, the acts of distributing the leaflets and making the written inquiry as found in the judgment constitute, by their nature, "acts for the business of a trade union" under Article 39, Subparagraph 1 of the Trade Union Act, in order for the personnel committee conducting the re-examination to treat the Plaintiff's above acts as grounds for disciplinary action, three union representatives should have been seated as committee members; nevertheless, the Defendant company failed to do so, and this constitutes a procedural defect. Having so determined, the court below rejected the Defendant's argument that, at the time of the re-examination procedure concerning the Plaintiff's disciplinary action, the trade union was in fact dormant and conducted no activities whatsoever, such that even if the Defendant company had notified the union side of the re-examination procedure, it would have been impossible for the union to elect and seat three representatives, and that, even if three union representatives had participated as committee members, since there were ten company-side members on the re-examination committee, the company could have reached its intended re-examination decision regardless, so that even if the Defendant rendered the re-examination decision without notifying the trade union of the re-examination, this would not amount to a procedural defect serious enough to infringe upon the procedural fairness of the disciplinary dismissal in this case. In rejecting this argument, the court below found, based on the relevant evidence, that at the time the re-examination personnel committee was convened, 37 union members remained; that on July 29, 1992, Non-party 1, the acting chairman of the trade union, resigned from the position of acting chairman effective August 1 of the same year, and, pursuant to a resolution of the executive standing committee, delegated to Non-party 2, a union member, matters concerning the union fund, equipment, office, the status of union members, receipt of documents, and general administrative management, such that the said Non-party 2 (Lee Sang-jun) was in charge of the trade union's document receipt and general administrative affairs. On this basis, the court below concluded that it could not be concluded that, even if the Defendant company had notified the said Lee Sang-jun of the holding of the re-examination personnel committee, the union side would have been unable to elect and seat three representatives, and on this and other grounds rejected all of the Defendant's above arguments.
The re-examination procedure for a disciplinary action is, as a remedial or confirmatory procedure with respect to the disciplinary action, together with the original disciplinary procedure, a single unified disciplinary process, the legitimacy of which must be judged with respect to the entirety of the disciplinary process; therefore, even where the original disciplinary action satisfies all its requirements, if the re-examination procedure is not conducted at all, or if there is a material defect in the re-examination procedure such that the effect of the re-examination cannot be recognized, the disciplinary action shall be void (see Supreme Court Decision 92Da49935 decided October 22, 1993; Supreme Court Decision 93Da29662 decided January 24, 1995, etc.). Accordingly, where Article 25, Subparagraph 3 of the Defendant company's collective agreement guarantees the trade union's right to participate when a union member disciplinarily dismissed requests a re-examination, but the re-examination is nevertheless conducted without guaranteeing such right and the disciplinary dismissal is thereby finalized, the disciplinary action must, in principle, be deemed void due to a material procedural defect. However, if there are special circumstances such that the trade union itself voluntarily waived its right to participate in such re-examination (see Supreme Court Decision 92Da32074 decided December 8, 1992; Supreme Court Decision 94Da46753 decided March 28, 1995, etc.), or where a trade union that has lost its function as a trade union has directly notified the company of its intention to suspend union business going forward, and all of the union officers constituting the union's executive body have resigned, such that the union's activities have completely ceased, then even if the re-examination resolution was made without guaranteeing the participation of union representatives, this cannot be deemed to constitute a material defect in the re-examination procedure rendering the disciplinary action itself void (see Supreme Court Decision 95Da1323 decided June 13, 1995).
Examining the record, the following facts are found: the Defendant company's trade union once had approximately 19,000 members, but by the time the Plaintiff requested re-examination, the number of union members had fallen to only 37, such that the union had in fact lost its function as a trade union; on July 23, 1992, all of the union's officers and executives (7 persons) resigned from the executive body, and requested the company side to release them from full-time union duty effective August 1; and in a letter of cooperation request sent to the company by the trade union on July 25 of the same year, it was stated that: Non-party 2 had been appointed as manager of the union fund in order to preserve and maintain the union fund and assets while the performance of union business was suspended going forward; that, in order to prevent misappropriation of the union fund and to preserve it, it had been decided that the fund would be managed jointly, in the co-names of a manager appointed by the union side and a manager appointed by the company side, and cooperation was requested so that the union fund would be managed in accordance with the attached joint fund management rules; that, beginning with the wages for August 1992, union dues should not be deducted from union members' wages; and that, since the union's business operations were being suspended, it was expected that the operation of the labor-management council would become impossible going forward, and the company side was requested to operate in an appropriate manner so as to be able to gather the opinions of employees. It was also found that, under the joint fund management rules prepared by the trade union, the trade union delegated to the said fund manager, Lee Sang-jun, only matters concerning the management of the union fund, the custody of the union's assets and equipment supported by the company, and the maintenance of the status of union members and the receipt and organization of external official documents. Under these circumstances, it must be concluded that the Defendant company's trade union not only lacked an executive body and was thus unable to perform the trade union's original business, but had also declared to the outside world its abandonment of union activities and had notified the company side of this fact. Accordingly, even under these circumstances, it cannot be said that the Defendant company was under an obligation to request the trade union side to select three personnel committee members for the re-examination.
If so, the judgment below, premised on a different view and holding that there was a material procedural defect in the re-examination procedure, contains an illegality in erring in its determination of the lawfulness of the disciplinary procedure; therefore, this ground of appeal pointing this out has merit, at least to that extent.
3. As to Ground 3
The court below, on the premise that, with respect to the acts among the grounds for disciplinary action against the Plaintiff related to Article 39, Subparagraph 1 of the Trade Union Act, a procedural defect existed in that the Defendant company failed to comply with Article 25, Subparagraph 3 of the collective agreement, held that the legitimacy of the disciplinary dismissal should be judged based only on the remaining grounds for disciplinary action free of such procedural defect. The court below then found that, among the remaining grounds for disciplinary action excluding the above ground, those grounds found in the judgment which occurred more than six months prior to the commencement date of the disciplinary procedure and of which the Defendant company was aware, pursuant to Article 45, Paragraph 3 of the Defendant company's rules on rewards and punishments, could not be used as grounds for the disciplinary dismissal in this case (though they could be considered as mitigating or aggravating circumstances in judging the legitimacy of the disciplinary dismissal); and that, excluding also those grounds found in the judgment that could not be regarded as legitimate disciplinary grounds because they could not be seen as based on legitimate directives concerning duties, even considering comprehensively all of the remaining grounds for disciplinary action found in the judgment together with the above circumstances to be considered, in light of the Defendant company's prescribed sentencing standards by type of misconduct as found in the judgment, the Defendant's imposition upon the Plaintiff of disciplinary dismissal, the heaviest type of sanction among disciplinary measures, exceeded the limits of the disciplinary authority and could not be said to have justifiable grounds, and therefore the disciplinary action was void.
However, as discussed above in connection with Ground 2 of the grounds of appeal, it cannot be said that the Defendant company committed a procedural illegality in failing to comply with Article 25, Subparagraph 3 of the collective agreement. Accordingly, it was erroneous for the court below to exclude the grounds for disciplinary action related to Article 39, Subparagraph 1 of the Trade Union Act from the grounds for disciplinary action on the basis of a violation of Article 25, Subparagraph 3 of the collective agreement, and to judge the legitimacy of the disciplinary action based only on the remaining grounds. On the other hand, examining the record, it appears that the grounds for disciplinary action related to Article 39, Subparagraph 1 of the Trade Union Act all constitute legitimate acts for the business of the trade union and thus likewise cannot be used as grounds for disciplinary action; moreover, even comprehensively considering all of the grounds for disciplinary action against the Plaintiff that were lawfully found by the court below, it cannot be said that the Defendant's choice of the heaviest disciplinary measure of dismissal against the Plaintiff constitutes a legitimate exercise of disciplinary authority. Therefore, the court below's determination that the disciplinary action against the Plaintiff was void due to abuse of the disciplinary authority is, in its result, justified, and there is no illegality in the judgment below in the form of a misunderstanding of the legal principles concerning "justifiable grounds" for dismissal under Article 27 of the Labor Standards Act (근로기준법), or a misapprehension of facts due to a violation of the rules of evidence.
Ultimately, this ground of appeal is without merit.
4. The Defendant also filed an appeal with respect to the portion of the judgment ordering payment of wages; however, no grounds of appeal have been presented with respect to this portion, nor is there any statement thereof in the petition of appeal.
5. Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. It is so decided as stated in the Order, by the unanimous opinion of the Justices participating in the decision.
Presiding Justice Ahn Yong-deuk
Justice Cheon Kyung-song
Justice Ji Chang-gwon
Justice Shin Seong-taek (Presiding/Reporting Justice)