[Plaintiffs, Appellants]
[Defendant, Appellee and Appellant] Daelim Motor Industrial Co., Ltd., Litigation Representative Attorney Kim Ik-ha
[Judgment Below] Busan High Court Judgment 92Na1032, decided October 14, 1992
[Order]
All appeals are dismissed.
The costs of appeal are to be borne by each appellant.
[Reasoning]
1. As to the grounds of appeal by the litigation representative of Plaintiff 1 and Plaintiff 2
A. According to the reasoning of the judgment below, the court below found as follows: Article 50 of the Defendant Company's Rules of Employment (취업규칙) provides that an employee shall be dismissed when a disciplinary dismissal has been decided (Item 2), and Article 43 provides that commendation and disciplinary action of employees shall be governed by separate Rules on Rewards and Punishment; Article 13 of the said Rules on Rewards and Punishment enumerates, among other things, "a person who has received a sentence of a fine or heavier punishment" (Item 11); the Collective Bargaining Agreement (단체협약) concluded between the Defendant Company and its labor union (hereinafter "the Labor Union") provides that the dismissal of officers and executives of the union shall be subject to prior agreement with the union (Article 46, Paragraph 2), and that the Disciplinary Committee shall consist of three members each from labor and management, that the union member subject to review or a fellow union member shall be given an opportunity to explain the facts, and that the union shall be notified in writing of the personal details of the relevant union member, the grounds for discipline, and the date, time and place of the meeting no later than two days before the Disciplinary Committee is convened (Article 48).
① Plaintiff 1, while working as the head of the strike leadership department of the Labor Union from around April 1988, on four occasions in or around May 1990, without following proper procedures, instigated illegal industrial actions such as refusal of overtime work, refusal of pre-shift work, and collective early leave, and was accordingly indicted while in detention by the Masan District Court on June 12, 1990; on September 28 of the same year, that court sentenced him to one year of imprisonment in Case No. 90Godan1142; upon his appeal, on December 28, 1990, the court, in Case No. 90No9001, sentenced him to one year of imprisonment with a two-year suspension of execution, and this sentence became final around that time.
② Plaintiff 2, while working as the head of the general affairs department of the Labor Union, in mid-January 1989, under the pretext of activating the union library maintained in the union office, purchased books that constituted enemy-benefiting expressive materials (이적표현물) with content that promoted class-struggle consciousness by highlighting conflict between the working class and the capitalist class and emphasized the overthrow of the capitalist class, and lent these to fellow union members to read; in late October 1989, he acquired and read such enemy-benefiting expressive materials; on March 17, 1990, he was indicted while in detention on suspicion of violating the National Security Act (국가보안법) by the same court; on September 18 of the same year, the same court sentenced him to one year of imprisonment and one year of suspension of qualification; although he appealed, his appeal was dismissed by the same court on December 19, 1990 in Case No. 90No1005, and, as he waived his right to further appeal, that sentence became final.
Accordingly, the Defendant Company decided to discipline the above plaintiffs. ① As to Plaintiff 1, after the first-instance guilty verdict against him was rendered, the Defendant Company decided to convene the Disciplinary Committee at 14:00 on October 19, 1990, and notified each disciplinary committee member and the Labor Union accordingly; however, as the union side requested a postponement, the date of the Disciplinary Committee was reset to 14:00 on October 22 of the same year and notice was given accordingly; the plaintiff, who was then in detention, was required to submit a written statement of explanation; the Disciplinary Committee, attended by three company-side committee members and two union-side committee members, having considered the plaintiff's written statement, determined that the plaintiff fell under Article 13, Item 11 of the Defendant Company's Rules on Rewards and Punishment and decided to dismiss him; accordingly, the Defendant Company dismissed the plaintiff on October 29, 1990. ② As to Plaintiff 2 as well, after the first-instance guilty verdict against him was rendered, the plaintiff, who was then in detention, was required to submit a written statement of explanation; on October 26, 1990 at 10:00, the Disciplinary Committee, attended by all company-side and union-side committee members, having considered the plaintiff's written statement, decided, upon the demand for dismissal by all company-side committee members, that the plaintiff should be dismissed; accordingly, the Defendant Company dismissed the plaintiff on November 21, 1990.
Having found the above facts, the court below determined that the conduct of Plaintiff 1 and Plaintiff 2 as found above all falls under the grounds for disciplinary dismissal set forth in Article 13 of the Defendant Company's Rules on Rewards and Punishment, and that, since there is no circumstance in this case suggesting that the relevant provisions of the Rules of Employment and the Rules on Rewards and Punishment are invalid as violating the Labor Standards Act (근로기준법), the Defendant Company's dismissal of the above plaintiffs pursuant to the disciplinary resolution of the Disciplinary Committee had justifiable cause; and that, in light of the circumstances leading to and the results of the above conduct of the plaintiffs, the purpose of the discipline, and the plaintiffs' attitude during the disciplinary review process, it cannot be said that the dismissal was so clearly unreasonable in light of generally accepted social norms as to constitute an abuse of the right to discipline.
The court below further determined as follows: although Article 37, Item 2, and Article 46, Paragraph 2 of the Defendant Company's Collective Bargaining Agreement provide that the dismissal of officers and executives of the union shall be subject to prior agreement with the union, considering that the main text of Article 37 of the Agreement provides that "the union acknowledges that the authority over personnel matters concerning union members rests with the company," and that Article 4 of the Defendant Company's Rules on Rewards and Punishment provides that "commendation and discipline shall be decided by the appointing authority after deliberation by the Rewards and Punishment Committee," it is appropriate to view the agreement clause under the Collective Bargaining Agreement as intended merely to prevent the normal activities of the labor union from being obstructed by the employer's arbitrary exercise of personnel authority or disciplinary power over union officers, by requiring the employer to notify the union in advance of the content of personnel actions or discipline concerning union officers, thereby giving the union an opportunity to present necessary opinions to ensure fairness in personnel matters or discipline, and to have such opinions considered as reference material; moreover, in this case, the Disciplinary Committee was composed of an equal number of members from labor and management, the disciplinary schedule concerning the above plaintiffs was notified to the union side in advance, and it can be found that a number of union officers participated as disciplinary committee members in the disciplinary review process and presented their opinions; therefore, the court below determined that the fact that the disciplinary dismissal of the above plaintiffs was carried out without prior agreement with the union does not affect its validity.
B. Where the specific content of a personnel consultation (agreement) clause set forth in a collective bargaining agreement, etc. merely requires that the labor union be given an opportunity to present its opinion so that the employer may exercise due care in taking personnel action, failure to follow that procedure should not be held to affect the validity of the personnel action; however, where the clause requires the employer to obtain the prior consent or approval of the labor union in taking personnel action, or requires the employer to discuss the personnel action with the labor union and reach a meeting of the minds before taking such action, a personnel action taken without following that procedure should, in principle, be held invalid (see this Court's Decisions 91Da4775, decided April 14, 1992; 91Da22100, decided May 22, 1992; 92Da32074, decided December 8, 1992; and 92Da34940, decided April 23, 1993).
However, upon examining the relevant evidence against the record, it appears that, in this case, Article 37, Item 2 of the Collective Bargaining Agreement provides that "personnel actions and discipline concerning union officers shall be subject to prior agreement (합의) with the union," whereas Item 3 provides that "discipline, dismissal, and secondment of union members shall be subject to prior consultation (협의) with the union," thus distinguishing in terminology between prior "agreement" for personnel actions and discipline concerning union officers and prior "consultation" for those concerning ordinary union members. This distinction between "agreement" and "consultation" is also evident elsewhere, in that Article 45 provides that "the company shall follow the Rules on Rewards and Punishment with respect to warnings, reprimands, pay cuts, and suspension of union members, and shall consult with the union," while Article 46, Paragraph 2 provides that "the dismissal of officers and executives of the union shall be subject to prior agreement with the union."
A personnel consultation (agreement) clause under a collective bargaining agreement is, in principle, a provision limiting the personnel authority that otherwise rests with the employer, as a result of negotiations between labor and management; the choice of wording is not adopted solely on the insistence of either the employer or the labor union but is adopted as the final agreement reached through negotiation between both labor and management, and is thus ultimately a product of the relative bargaining power of the parties at the time of negotiation.
Therefore, where a personnel consultation (agreement) clause of a collective bargaining agreement uses distinct terms—requiring prior "agreement" for personnel actions concerning union officers and prior "consultation" for those concerning ordinary union members—this should be understood as reflecting that, at the time of negotiation, the parties intended to differentiate the degree of limitation placed on the Defendant's personnel authority as between union officers and ordinary union members; and this difference cannot be regarded merely as a difference in the degree to which the union's opinion must be more carefully considered in the case of union officers than in the case of prior consultation concerning ordinary union members. Accordingly, it is proper to interpret the provision as meaning that, unlike prior "consultation," which is intended merely to require an opinion-gathering procedure to ensure careful exercise of personnel authority over ordinary union members, prior "agreement" concerning personnel actions involving union officers requires that the employer exercise its personnel authority only after sincerely exchanging opinions with the union and reaching a "meeting of the minds" between labor and management.
Accordingly, since there was no such prior "meeting of the minds" through an exchange of opinions between labor and management before the Defendant carried out the disciplinary dismissal of the above plaintiffs, who were union officers, this disciplinary dismissal was carried out without the agreement procedure set forth in Article 37, Item 2, and Article 46, Paragraph 2 of the Collective Bargaining Agreement, and should therefore be held invalid, absent special circumstances showing that the union side itself waived this agreement procedure or abused its right to refuse agreement. The court below, having taken a different view in interpreting the above personnel agreement clause, erred in its understanding of the legal principles concerning the interpretation of personnel agreement clauses under collective bargaining agreements.
C. However, even if the above personnel agreement clause requires prior agreement with respect to the entirety of personnel actions and discipline concerning union officers, this is, after all, merely a limitation requiring the employer, who retains personnel authority, to exercise that authority through agreement with the labor union, and does not fundamentally deny the employer's personnel authority. Accordingly, even where a collective bargaining agreement provides that discipline against union officers requires prior agreement with the labor union, if there has been a serious act of betrayal on the part of the union side which has caused the procedural defect on the employer's side, or if the person subject to discipline has committed a serious unlawful act against the employer company causing direct and substantial damage, the misconduct objectively and clearly falls under grounds for discipline, and the company has made sincere and genuine efforts to reach prior agreement with the union, yet the union side has unreasonably opposed the discipline without presenting any reasonable basis or grounds, thereby preventing prior agreement from being reached, then the union side shall be deemed to have abused its right to refuse agreement, and the dismissal carried out by the employer without such agreement should also be held valid.
According to the facts found by the court below, in this case, Plaintiff 1, as the head of the strike leadership department of the Labor Union, led an illegal strike, thereby obstructing the business of the Defendant Company and causing direct and substantial financial damage to the Defendant Company, and was accordingly sentenced by the court of first instance to actual imprisonment of one year (this sentence against the plaintiff was later modified on appeal, prior to the filing of this suit, to one year of imprisonment with a two-year suspension of execution, and became final); and Plaintiff 2, as the head of the general affairs department of the Labor Union, purchased enemy-benefiting expressive materials as union library books, read them himself, and lent them to fellow union members to read, and was accordingly sentenced by the court of first instance to one year of imprisonment and one year of suspension of qualification (this sentence against the plaintiff became final prior to the filing of this suit). The receipt of the above sentences by the plaintiffs at the first instance clearly and objectively falls under the ground for disciplinary dismissal set forth in Article 13, Item 11 of the Rules on Rewards and Punishment, namely, "where an employee has received a sentence of a fine or heavier punishment." Furthermore, there is no separate provision in the Collective Bargaining Agreement, the Rules of Employment, or the Personnel Regulations concerning the specific procedure and method for prior agreement regarding discipline, and, in light of Article 48, Paragraph 1 of the Collective Bargaining Agreement providing that the Disciplinary Committee shall consist of three members each from labor and management, it appears that such prior agreement procedure would ordinarily be carried out through a Disciplinary Committee composed of an equal number of members from labor and management (see this Court's Decision 92Da32074, decided December 8, 1992). The union-side disciplinary committee members, having received notice from the Defendant Company of the convening of the Disciplinary Committee concerning the above plaintiffs, attended the Disciplinary Committee meetings held on October 22 and October 26, 1990, respectively, and deliberated on the disciplinary matters concerning the above plaintiffs, thereby fully being aware of the above plaintiffs' misconduct; and the Defendant Company, in order to reach agreement with the union side, postponed the convening of the Disciplinary Committee concerning Plaintiff 1 once and made sincere and genuine efforts, including attempting to reach agreement with the union side at each Disciplinary Committee meeting held; nevertheless, the union-side disciplinary committee members unilaterally opposed the discipline against the above plaintiffs without presenting any reasonable basis or grounds, thereby preventing agreement between labor and management from being reached. This should be deemed an abuse by the union side of its right to refuse agreement under the above personnel agreement clause; therefore, the disciplinary dismissal dispositions in this case taken by the Defendant Company, even though prior agreement with the union was not reached, should also be held valid.
Accordingly, although the court below erred in construing the meaning of "agreement" under the personnel agreement clause as requiring merely that the labor union be given an opportunity to present necessary opinions and have those opinions considered as reference material to ensure fairness in the disciplinary procedure, without requiring a meeting of the minds, the court below's conclusion that the disciplinary dismissal dispositions against the above plaintiffs are valid, even though carried out without prior agreement with the union side, is correct; therefore, it cannot be said that there was an error in the understanding of legal principles, as argued in the grounds of appeal, that affected the outcome of the judgment.
This ground of appeal is ultimately without merit.
2. As to the grounds of appeal by the litigation representative of the Defendant
A. According to the reasoning of the judgment below, the court below found, with respect to the disciplinary procedure concerning Plaintiff 3, as follows: after deciding to discipline the plaintiff, the Defendant Company, following the rendering of the first-instance guilty verdict against the plaintiff, decided to convene the Disciplinary Committee at 14:00 on August 31, 1990, and notified each disciplinary committee member and the Labor Union accordingly (however, there is no evidence establishing that notice was given to the plaintiff himself); the union side did not attend, and the Disciplinary Committee, attended only by the company-side committee members, determined that the plaintiff's conduct fell under Article 13, Items 9 and 11 of the Defendant Company's Rules on Rewards and Punishment, warranting dismissal, but decided to give the plaintiff an opportunity to explain before making a final decision; on September 10 of the same year, the plaintiff, then detained at Masan Prison, was notified to submit a written statement of explanation; however, when the plaintiff, on September 12, sent a written statement refusing to accept the Defendant Company's discipline, the Defendant Company, without reconvening the Disciplinary Committee, dismissed the plaintiff on September 15 of the same year, based on the decision of the Disciplinary Committee of August 31, 1990.
Having found the above facts, the court below determined that, although the Defendant Company's Rules on Rewards and Punishment and the Collective Bargaining Agreement require that discipline against union members be subject to deliberation by the Disciplinary Committee and that the person subject to discipline be given an opportunity to explain the facts, the deliberation and decision of the Disciplinary Committee held on August 31, 1990, which was convened without giving the plaintiff prior notice or an opportunity to explain the facts, as well as the Defendant Company's action of dismissing the plaintiff on September 15, 1990, based on the content of the deliberation of the Disciplinary Committee held on that date—despite the Disciplinary Committee having decided to give the plaintiff an opportunity to explain before making a final decision—without reconvening or holding any further deliberation by the Disciplinary Committee, merely on the ground that the plaintiff refused to accept the discipline, both violate the disciplinary procedures under the Defendant Company's Rules of Employment and the Collective Bargaining Agreement, and are therefore invalid. Upon examining the record as to the process of evidence-taking by which the court below found the above facts, this determination is justified, and there is no illegality of misapprehension of facts due to violation of the rules of evidence, as argued in the grounds of appeal.
This ground of appeal is without merit.
B. According to the record, Article 48, Paragraph 1 of the Collective Bargaining Agreement provides that "the Disciplinary Committee shall consist of three members each from labor and management, and shall give the union member subject to review or a fellow union member an opportunity to explain the facts." Although a literal reading of this provision may give rise to the misunderstanding that the Defendant Company need only give an opportunity to explain the facts to either the union member subject to review or a fellow union member, such an interpretation would render the procedural safeguard meaningless and subject to criticism, in that the Defendant Company could avoid giving the person subject to discipline an opportunity to explain, and instead have another union member favorable to the company make a mere formal explanation. Moreover, in light of Article 16, Item 2 of the Rules on Rewards and Punishment, which provides that "the Rewards and Punishment Committee shall have the person subject to discipline and any related persons appear before it and shall give them an opportunity to explain the facts," Article 48, Paragraph 1 of the Collective Bargaining Agreement should be interpreted as providing that the union member subject to discipline may, if necessary, have another union member explain on his behalf, together with himself or in his place. Accordingly, the company must necessarily give the person subject to discipline an opportunity to explain the facts, and for this purpose must give the person subject to discipline prior notice of the convening of the Disciplinary Committee. Even accepting, as argued in the grounds of appeal, that the Defendant Company's Disciplinary Committee is a deliberative body rather than a decision-making body, and that discipline is imposed by the appointing authority after deliberation by the Disciplinary Committee, the result of the Disciplinary Committee's deliberation constitutes important material that has a decisive influence on the appointing authority's decision on whether to impose discipline. Therefore, where the Defendant Company failed to give notice of the convening of the Disciplinary Committee as required under the above provision, thereby failing to give the person subject to discipline the opportunity to explain as required under the Collective Bargaining Agreement, a disciplinary dismissal disposition made by the appointing authority based on the result of deliberation by a Disciplinary Committee convened in such circumstances should be held invalid, as constituting an unlawful exercise of disciplinary authority in violation of the disciplinary procedure. This conclusion is not affected even if the appointing authority, in making the disciplinary dismissal disposition, also considered the written statement of explanation belatedly submitted by Plaintiff 3, after having been notified—following the Disciplinary Committee's deliberation—of the opportunity to submit such material, together with the result of the deliberation by the above unlawfully convened Disciplinary Committee. Accordingly, the court below's determination that the disciplinary dismissal disposition against Plaintiff 3 is invalid is correct, and there is no illegality of misapprehension of the legal principles concerning procedural justice required under the Labor Standards Act, as argued in the grounds of appeal.
This ground of appeal is without merit.
3. Accordingly, all appeals are dismissed, and the costs of appeal are to be borne by each appellant. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Kim Seok-su (Presiding Justice), Choi Jae-ho (Justice in Charge), Bae Man-woon, Choi Jong-young