[Plaintiff, Appellant]
[Defendant, Appellee] Daelim Motor Co., Ltd., Attorney Kim Ik-ha, Litigation Representative
[Judgment Below] Busan High Court Decision 91Na15430 delivered on September 23, 1992
[Order]
All appeals are dismissed.
The costs of the appeal shall be borne by the Plaintiffs.
[Reasoning]
The grounds of appeal by the Plaintiffs' litigation representative are examined.
1. On the effect of a violation of the personnel consultation (agreement) clause,
According to the reasoning of the judgment below, the court below found as follows: While working as production workers for the Defendant company, Plaintiff 1 had been involved in union affairs from around mid-November 1988 as the Education Department Head of the Defendant company's labor union (hereinafter "the Labor Union"), and Plaintiff 2 had been so involved from around December 1989 as the Deputy Head of the Organization Department of the Labor Union. In early June 1990, having become suspected of crimes such as obstruction of business, violation of the Labor Dispute Adjustment Act (노동쟁의조정법), and violation of the National Security Act (국가보안법) in connection with radical labor movement activities carried out in the course of their union work, the Plaintiffs became subject to a nationwide search warrant issued by the relevant investigative authorities, and from June 12 of that year, in order to evade this, they continued to be absent from work without any prior notice or submission of a leave request to the Defendant company. When the Plaintiffs' unauthorized absence continued for 14 days, the Defendant company, on June 25, notified the Labor Union and the Plaintiffs' respective addresses that a disciplinary committee would be convened at 2:00 p.m. on June 27 in the large conference room, pursuant to Article 13, Item 5 of the Rules on Rewards and Punishments (which sets forth grounds for dismissal, namely "continuous unauthorized absence of 7 days or more"). On June 26, the Labor Union requested a postponement, asking that the disciplinary committee be convened at 2:00 p.m. on July 18 of that year. The Defendant company then, on June 28 of that year, again notified the Labor Union and the Plaintiffs at their aforementioned addresses that the disciplinary committee would be convened at 2:00 p.m. on July 4 of that year in the large conference room. At the disciplinary committee thus convened, the Plaintiffs did not appear, but all six disciplinary committee members were present, namely three from the company side and three from the Labor Union side (the acting head of the union, the secretary-general, and the head of the research and statistics department). At this meeting, the three company-side disciplinary committee members asserted that there existed justifiable grounds for disciplinary dismissal and that the Plaintiffs should be disciplinarily dismissed, while the three Labor Union-side disciplinary committee members asserted that the Plaintiffs were absent due to unavoidable circumstances and that discipline would be unjust. Thereafter, the president of the Defendant company, who held the authority to impose discipline, taking into account the results of the above deliberation, on August 6 of that year dismissed the Plaintiffs by way of disciplinary dismissal pursuant to the above Article 13, Item 5 of the Rules on Rewards and Punishments, and notified the Labor Union and the Plaintiffs at their respective addresses accordingly. The court below further found that the Plaintiffs, having continued their life in hiding thereafter, were apprehended and detained by the relevant authorities around August 30 of that year, and were found guilty by the Changwon District Court on December 23, 1990 of each of the aforementioned offenses, each sentenced to one year and six months' imprisonment and one year's suspension of qualifications; that they each appealed this judgment; and that on April 12, 1991, the appellate court sentenced each of them to one year's imprisonment and one year's suspension of qualifications, without suspension of execution.
Having found these facts, the court below determined that the Defendant company's respective dismissals of the Plaintiffs were carried out pursuant to Article 13, Item 5 of the Rules on Rewards and Punishments, which sets forth the substantive standards for personnel action (dismissal), and that there existed justifiable grounds for dismissal as provided in Article 27, Paragraph 1 of the Labor Standards Act (근로기준법). The court below further held that, although Article 37, Item 2 and Article 46, Paragraph 2 of the Defendant company's collective agreement provide that disciplinary dismissal of officers and executives of the Labor Union shall require prior agreement with the Union (whereas, with respect to discipline, dismissal, and dispatch of union members who are not union executives, Item 3 of Article 37 provides for prior consultation with the Union), in light of the fact that Article 37, Item 2 of the collective agreement establishes, as a general personnel principle, that prior agreement is to be obtained with respect to personnel matters and discipline in general; the fact that Article 4 of the Rules on Rewards and Punishments provides that "commendations and disciplinary actions shall be determined by the appointing authority following deliberation by the Rewards and Punishments Committee"; and taking into account the relationship between Article 37, Item 2 and the collective agreement as a whole, as well as labor-management practice, such prior agreement should be understood not as intended to comprehensively restrict the Defendant's personnel authority or disciplinary authority by requiring that the matter be handled in accordance with the concurring will of the Defendant company and the Labor Union—unlike a case where the provision requires the Defendant company to obtain the Labor Union's approval or consent, or requires both labor and management to reach agreement and jointly decide the matter—but rather should be understood as intended, to the extent of preventing the Defendant company's arbitrary exercise of personnel or disciplinary authority over Labor Union executives from impeding the Labor Union's normal activities, merely to require the Defendant company to notify the Labor Union in advance of the content of personnel or disciplinary action concerning Labor Union executives, thereby giving the Labor Union an opportunity to present opinions necessary to ensure fairness in personnel or disciplinary matters, and to have the opinions thus presented by the Labor Union considered as reference material. Accordingly, the court below determined that the fact that the disciplinary dismissal of the Plaintiffs in this case was carried out without going through such prior agreement could not be found to affect the validity of the disciplinary dismissal, which was otherwise carried out without defect in accordance with the procedures prescribed in the collective agreement and other relevant rules.
Where the specific content of a personnel consultation (agreement) clause provided in a collective agreement or similar instrument is such as to require that the employer give the labor union an opportunity to present its opinion so that the employer may exercise due care in taking personnel action, the validity of the personnel action is not affected even if such procedure was not followed. However, where the provision requires the employer to obtain the labor union's prior consent or approval before 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, personnel action taken without following such procedure must, in principle, be deemed invalid (see this Court's Decisions 91Da4775 delivered on April 14, 1992; 91Da22100 delivered on May 22, 1992; 92Da32074 delivered on December 8, 1992; and 92Da34940 delivered on April 23, 1993).
However, upon examining the relevant evidence against the record, it is found that, in this case, Article 37, Item 2 of the collective agreement provides that "personnel matters and discipline concerning union executives shall be subject to prior 'agreement' (합의) with the Union," whereas Item 3 provides that "discipline, dismissal, and dispatch of union members shall be subject to prior 'consultation' (협의) with the Union." Thus, the terms are distinguished such that prior "agreement" is required for personnel matters and discipline concerning union executives, while prior "consultation" is required for personnel matters and discipline concerning union members. This distinction between "agreement" and "consultation" is also apparent elsewhere: Article 45 provides that "the Company shall follow the Rules on Rewards and Punishments 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 "dismissal of officers and executives of the Union shall be subject to prior agreement with the Union."
A personnel consultation (agreement) clause in a collective agreement is, in principle, a provision restricting the personnel authority that in principle belongs to the employer, as a result of collective bargaining between labor and management, and the choice of its specific wording is not adopted based solely on the assertion of either the employer or the labor union, but is adopted as the final agreement reached through negotiation between both labor and management; it is thus, in the end, the product of the respective bargaining power of the parties at the time of negotiation.
Accordingly, where, as here, the personnel consultation (agreement) clause of a collective agreement uses distinct terms—prior "agreement" for personnel matters concerning union executives and prior "consultation" for personnel matters concerning union members—it must be understood that, at the time of negotiation, the degree of restriction on the Defendant's personnel authority was set differently as between union executives and union members; and this cannot be construed merely as a difference in degree such that greater care must be exercised in taking into account the Labor Union's opinion with respect to union executives than in the case of prior consultation with respect to union members. Rather, it is proper to construe that, unlike prior "consultation," which simply means that an opinion-gathering procedure must be followed for the careful exercise of personnel authority over union members, prior "agreement" was required with respect to personnel matters concerning union executives in the sense that the personnel authority must be exercised only after sincerely exchanging views with the Labor Union and reaching a "meeting of the minds" between labor and management.
Accordingly, the determination of the court below—that the validity of the disciplinary action was not impaired even though the Defendant, in imposing the disciplinary dismissal (removal) at issue in this case on the Plaintiff, a Labor Union executive, did not go through the aforementioned procedure of prior agreement through exchange of opinions between labor and management—must be faulted as having erred in the interpretation of the prior agreement clause prescribed in the collective agreement.
However, even if, as a product of labor-management negotiation, prior agreement of the Labor Union is required for disciplinary dismissal of a Labor Union executive, this is intended to restrict the employer's unjust exercise of disciplinary authority over Labor Union executives, and cannot be construed to negate the exercise of the employer's disciplinary authority over its employees itself, which belongs to the employer's essential authority. Accordingly, the Labor Union's exercise of its right of prior agreement must, in any event, be exercised reasonably and in accordance with the principle of good faith.
Where, as in the present case, the collective agreement provides that prior agreement of the Labor Union is required for disciplinary dismissal of a Labor Union executive, but there is no provision whatsoever in the collective agreement or other personnel-related rules concerning the specific procedure or method of such prior agreement, and merely provides that Labor Union-side disciplinary committee members are to be essential members in the composition of the disciplinary committee (or rewards and punishments committee), it would ordinarily be the case that the exchange of views between labor and management takes place in the deliberation procedure of the disciplinary committee. Moreover, since the will of the Labor Union-side disciplinary committee members in that context is itself a reflection of the will of the Labor Union, obtaining the consent to discipline (prior agreement) of the Labor Union-side disciplinary committee members in that deliberation procedure is equivalent to obtaining the prior agreement of the Labor Union; and if, in that procedure, the Labor Union-side disciplinary committee members refuse agreement on reasonable grounds, the employer's exercise of disciplinary authority is thereby necessarily restricted. However, if the Labor Union-side disciplinary committee members obstruct the convening or deliberation of the disciplinary committee, or refuse to attend the disciplinary committee itself for purposes of such obstruction, or, even if they do attend, fail to present any legitimate opinion regarding the grounds for discipline, and instead unconditionally refuse discipline for the sole reason that the person subject to discipline is a Labor Union executive, notwithstanding the existence of clear and serious grounds for discipline, such conduct constitutes what may be called abandonment or abuse of the right to refuse agreement, and in such a case, the disciplinary action cannot be deemed invalid merely because prior agreement was not obtained.
In this case, according to the facts as established by the court below, the Plaintiffs, as Education Department Head and Deputy Head of the Organization Department of the Labor Union respectively, led illegal industrial actions on numerous occasions, thereby obstructing the business of the Defendant company and causing enormous property damage; and, having committed the aforementioned offense of obstruction of business, violation of the Labor Dispute Adjustment Act, and, in addition, violation of the National Security Act, and having thereby become subject to a search warrant, they went into hiding in order to evade execution of the arrest warrant, resulting in unauthorized absence of 14 days or more (and, although this occurred after the disciplinary dismissal in this case, the Plaintiffs were, as found above, each sentenced to the respective punishments for the above offenses). It is thus objectively clear that the Plaintiffs' conduct fell within the ground for disciplinary dismissal set forth in Article 13, Item 5 of the Rules on Rewards and Punishments, namely "where an employee has been absent without authorization for 7 days or more." The Labor Union-side disciplinary committee members, having received notice from the Defendant company of the convening of the disciplinary committee concerning the Plaintiffs, were fully aware of the aforementioned misconduct of the Plaintiffs. Notwithstanding that the Defendant company made sincere and earnest efforts to reach agreement with the Labor Union, including postponing the convening of the disciplinary committee once in order to reach agreement with the Labor Union, all of the Labor Union-side disciplinary committee members unilaterally opposed the discipline of the Plaintiffs in the deliberation process of the disciplinary committee without presenting any reasonable basis or grounds, such that agreement between labor and management was not reached. Given these circumstances, it is proper to view that the Labor Union side abused its right to refuse agreement under the aforementioned personnel agreement clause, and therefore the disciplinary dismissal of the Plaintiffs by the Defendant company, carried out without reaching prior agreement with the Labor Union, must ultimately be deemed valid.
This being so, the conclusion of the court below—that the disciplinary dismissal of the Plaintiffs in this case is valid even though carried out without prior agreement with the Labor Union—is correct, and therefore the error of the court below in misconstruing the personnel agreement clause as set forth above did not affect the outcome of the judgment in this case.
The argument is, in the end, without merit.
2. On the notice of convening the disciplinary committee,
The process of fact-finding undertaken by the court below in finding that the Defendant notified the Plaintiffs of the convening of the disciplinary committee on July 4, 1990 (by sending a request to appear) is found, upon examination in light of the record, to be proper and is accepted; there is no illegality in the fact-finding process such as would amount to a misapprehension of the facts contrary to the rules of experience and logic. The argument is therefore without merit.
3. Accordingly, all appeals are 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, by the unanimous opinion of the participating Justices.
Justice Kim Seok-su (Presiding Justice), Choi Jae-ho (Justice in Charge), Bae Man-un, Choi Jong-yeong