[Plaintiff, Appellee]
[Defendant, Appellant] POSCO Co., Ltd. (Pohang Iron & Steel Co., Ltd.), Litigation Representative Attorney Lee Jae-hu and 3 others
[Court Below] Daegu High Court Decision 93Na7588 dated November 24, 1994
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
1. As to the first ground of appeal.
The court below recognized the following facts: the Plaintiff, who belonged to the inspection team of the Straightening Section of the No. 2 Heavy Plate Factory of the Defendant company's No. 1 Hot Rolling Division, was performing inspection work at the plate-bottom-surface inspection room from around 23:30 on July 16, 1992, sitting alone at a work desk and visually inspecting the condition of the bottom surface of the heavy plates reflected in a large mirror in front of the desk in order to determine the grade of the products; while performing this work, at around 04:27 the following day, he was found asleep while sitting at the work desk. However, in light of the circumstances found by the court below—including the method of the bottom-surface inspection work, the fact that the Defendant company had the Plaintiff continuously perform the bottom-surface inspection work, which was supposed to be rotated at intervals of one to two hours, for more than five hours, and the circumstances under which Non-party 1, the head of the Straightening Section of the Defendant company, who was not on night duty, came to the inspection room in the early morning and photographed the Plaintiff sleeping—the court below found that the Defendant company also bore fault in having induced the Plaintiff to fall asleep during night duty. Upon examination of the record, the above findings of the court below are acceptable, and it cannot be said that the judgment of the court below is unlawful due to insufficient deliberation or violation of the rules of evidence, as argued. Therefore, this ground of appeal is without merit.
2. As to the second ground of appeal.
"Legitimate acts for the business of a labor union" under Article 39, Subparagraph 1 of the Trade Union Act (노동조합법) generally refers to the legitimate activities of a labor union; however, even where a union member's act is not itself an organizational activity of the union carried out pursuant to a union resolution or specific instruction, if the act may be regarded, by its nature, as an activity of the union, or if it may be regarded as having received the union's implied authorization or approval, such union member's act must be regarded as an act for the business of the union (see this Court's Decisions 88Nu1950 dated April 25, 1989; 89Nu8217 dated August 10, 1990; 91Nu4164 dated November 12, 1991, among others).
The court below found that, while the Defendant company's labor union was being operated under an acting leadership after the properly elected chairman and other executives had resigned, and while that acting leadership attempted to amend the union bylaws by a vote without discussion among union members, the Plaintiff, believing this to be improper, prepared a flyer whose main content concerned problems with the substance of the proposed amendment and with the amendment procedure, and distributed it to the Defendant company's employees on the commuter bus on the morning of the scheduled voting day. Based on this finding, and in light of the circumstances under which the Plaintiff came to distribute the above flyer, its contents, and the timing and place of distribution, the court below determined that the above act of distributing the flyer could not be regarded as an unlawful act in violation of Article 13 of the collective bargaining agreement and Article 51, Subparagraph 11 of the rules of employment, but rather should be regarded, by its nature, as "an act for the business of a labor union" under Article 39, Subparagraph 1 of the Trade Union Act. The above determination of the court below is justified in light of this Court's precedents cited above, and it cannot be said that the judgment of the court below is unlawful due to a misunderstanding of the legal principles concerning Article 39, Subparagraph 1 of the Trade Union Act, as argued. Therefore, this ground of appeal is also without merit.
3. As to the fourth ground of appeal.
The court below found that, under Article 25, Subparagraph 3 of the collective bargaining agreement between the Defendant company and the labor union, where the company imposes a severe disciplinary action of dismissal or higher on a union member in connection with Article 39, Subparagraph 1 of the Trade Union Act, and the union member requests a reexamination, three representatives designated by the union must be appointed as members of the personnel committee. Since the act of distributing the flyer, which was one of the grounds for disciplinary action against the Plaintiff, constitutes, by its nature, "an act for the business of a labor union" under Article 39, Subparagraph 1 of the Trade Union Act, in order for the reexamination personnel committee to treat the Plaintiff's act of distributing the flyer as a ground for disciplinary action, three union representatives should have been included as committee members. Nevertheless, the Defendant company, without even notifying the labor union of the reexamination, formed a reexamination personnel committee, which then passed a resolution concurring with the original decision to dismiss the Plaintiff for disciplinary reasons. The court below therefore determined that the above disciplinary procedure was procedurally defective.
As to the Defendant's argument that, at the time the reexamination committee concerning the Plaintiff was formed, the Defendant company's labor union had only 37 members and was a dormant union whose entire executive leadership had resigned as of August 1, 1992, making it impossible for the union to select and have three representatives attend, and that therefore, even if the Defendant did not notify the union of the reexamination, there was a justifiable reason for the failure to give notice, such that the mere fact of the omission of notice would not render the disciplinary procedure void—the court below rejected the Defendant's argument solely on the ground that, since Non-party 2, who had been Acting Chairman of the labor union, resigned from that position effective August 1, 1992 following a resolution of July 29, 1992, and, pursuant to a resolution of the Executive Committee, delegated to Non-party 3, a union member, matters concerning the union fund, equipment, office, status of union members, receipt of documents, and general administrative management, so that Non-party 3 was in charge of the union's receipt of documents and general administrative management, it could not be concluded that the union was unable to select and have three representatives attend.
The procedure for reexamination of a disciplinary action is a remedial or confirmatory procedure with respect to the disciplinary action, and together with the original disciplinary procedure constitutes a single, integrated disciplinary process; the legitimacy of the procedure must therefore be judged with respect to the entire disciplinary process. Accordingly, even if the original disciplinary action satisfied all its requirements, if the reexamination procedure was not carried out at all, or if there was a material defect in the reexamination procedure such that the effect of the reexamination cannot be recognized, the disciplinary action itself becomes void (see this Court's Decisions 92Da49935 dated October 22, 1993; 93Da29662 dated January 24, 1995, among others).
Therefore, where Article 25, Subparagraph 3 of the collective bargaining agreement between the Defendant company and the labor union provides that, in connection with Article 39, Subparagraph 1 of the Trade Union Act, if a union member subject to disciplinary dismissal requests a reexamination, three representatives designated by the union must be appointed as members of the personnel committee, and yet the reexamination was conducted and the disciplinary dismissal was finalized without guaranteeing such right of participation of the labor union, the disciplinary action must, in principle, be regarded as void due to a material procedural defect. However, if there are special circumstances such as the labor union itself having voluntarily waived its right to participate in such reexamination (see this Court's Decisions 92Da32074 dated December 8, 1992; 94Da46763 dated March 28, 1995, among others), or the labor union, having lost its function as a labor union, having directly notified the company of its intention to cease union operations going forward, with all union officers constituting the union's executive body having resigned, thereby completely ceasing union activities, then even if the reexamination resolution was made without guaranteeing the participation of union representatives, this cannot be regarded as constituting a material defect in the reexamination procedure rendering the disciplinary action itself void.
However, according to Exhibit Gap No. 18, Exhibit Gap Nos. 19-1 through 19-4, and Exhibit Gap No. 20, which the court below did not reject, it is recognized that: the Defendant company's labor union, which once had approximately 19,000 members, had only 37 members as of around August 3, 1992, when the Plaintiff requested reexamination, and had thus effectively lost its function as a labor union; as of July 23, 1992, all of the union's officers and executives (7 persons) resigned from the executive leadership and requested the company to release them from full-time union duty effective August 1 of the same year; in a request for cooperation sent by the union to the company on July 25 of the same year, it was stated that Non-party 3 had been appointed as the union fund manager for the purpose of preserving and maintaining the union fund and assets while the union's business operations remained suspended going forward; that, in order to prevent misappropriation and to preserve the union fund, it was decided that a manager appointed by the union and a manager appointed by the company would jointly manage the union fund, and cooperation was requested so that the union fund would be managed pursuant to the attached joint fund management rules; that union dues should not be deducted from union members' wages beginning with the August 1992 payroll; and that, since it was anticipated that operation of the labor-management council would be impossible going forward due to the suspension of the union's business operations, the company was requested to operate an appropriate method by which to gather the opinions of employees. In addition, according to the joint fund management rules prepared by the labor union, it is recognized that the union delegated to the above Non-party 3, the fund manager, 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 the above circumstances, it must be found that the Defendant company's labor union not only had no executive body formed, making it impossible for the union to perform its original functions, but also had declared, externally, the abandonment of union activities and had notified the company of this fact. Therefore, even in such a case, it cannot be said that the Defendant company was under an obligation to request the labor union to select three reexamination committee members.
If so, the judgment of the court below, which, on the premise of a different view, found that there was a material procedural defect in the reexamination procedure, is unlawful in that it erred in its determination regarding the legality of the disciplinary procedure. Accordingly, this point of the ground of appeal is, for the moment, meritorious.
4. As to the third ground of appeal.
The court below, on the premise that, with respect to the act among the grounds for disciplinary action against the Plaintiff that was related to Article 39, Subparagraph 1 of the Trade Union Act, there was a procedural defect in that the Defendant company failed to comply with Article 25, Subparagraph 3 of the collective bargaining agreement, and that therefore the legitimacy of the disciplinary dismissal should be judged based only on the remaining grounds for disciplinary action that were free of procedural defects, determined as follows: with respect to the main ground for disciplinary action against the Plaintiff, namely the act of sleeping during the bottom-surface inspection work, since the Defendant also bore fault in inducing such sleeping, even considering the sleeping incident together with the remaining grounds for disciplinary action in combination, the Defendant's choice of disciplinary dismissal, the heaviest form of disciplinary action, against the Plaintiff constituted an abuse of the right of disciplinary action, and therefore the disciplinary action was void.
However, as noted in the determination on the fourth ground of appeal above, it cannot be said that the Defendant company committed a procedural violation by failing to comply with Article 25, Subparagraph 3 of the collective bargaining agreement. Accordingly, it was erroneous for the court below to exclude the ground 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 bargaining agreement, and to judge the legitimacy of the disciplinary action based only on the remaining grounds. Nevertheless, upon examination of the record, it appears that all of the grounds for disciplinary action related to Article 39, Subparagraph 1 of the Trade Union Act constitute legitimate acts for the business of the labor union and thus likewise cannot be used as grounds for disciplinary action; moreover, even considering all of the grounds for disciplinary action against the Plaintiff comprehensively, the Defendant's choice of disciplinary dismissal, the heaviest disciplinary action, against the Plaintiff cannot be regarded as a legitimate exercise of the right of disciplinary action. Therefore, the conclusion reached by the court below, namely that the disciplinary action against the Plaintiff is void as an abuse of the right of disciplinary action, is justified, and the argument that the judgment of the court below is unlawful due to a misunderstanding of the legal principles concerning "justifiable grounds" for dismissal under Article 27 of the Labor Standards Act (근로기준법) is without merit.
5. Accordingly, even though the judgment of the court below contains the unlawfulness noted in the determination on the fourth ground of appeal, such unlawfulness cannot be said to have affected the outcome of the judgment. Therefore, this appeal is ultimately without merit.
Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Jeong Gwi-ho (Presiding Justice), Kim Seok-su, Lee Don-hui, Lee Im-su (Justice in Charge)