[Plaintiff, Appellant]
[Defendant, Appellee]
[Court Below] Busan High Court Decision 91Na14949 rendered on July 2, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined (the supplementary grounds of appeal are examined to the extent that they supplement the original grounds).
1. As to Ground of Appeal No. 1
According to the reasoning of the judgment below, the court below found, based on the evidence it adopted, the following facts: the Plaintiff joined the Defendant medical insurance cooperative (의료보험조합) and worked there, and was elected as branch chief (지부장) of the Regional Medical Insurance Gyeongnam Regional Labor Union (지역의료보험 경남지역노동조합); while working in that capacity, when the above labor union instructed that collective monthly leave be implemented in order to gain an advantageous position in the collective bargaining agreement renewal negotiations with the Council of Representative Directors of the 29 Si/Gun/Gu Regional Medical Insurance Cooperatives in Gyeongsangnam-do, the Plaintiff, following that instruction, distributed collective monthly leave application forms to employees of the Defendant cooperative and otherwise encouraged the implementation thereof, thereby causing 29 out of the 44 employees of the Defendant cooperative to collectively take monthly leave on May 23, 1990 without approval from the Defendant cooperative, thereby suspending the Defendant cooperative's performance of its duties; and that on May 24, 1990, the day after the collective monthly leave was implemented, the Plaintiff, being dissatisfied with the measures the Defendant cooperative intended to take with respect to the implementation of the above leave, used abusive and violent language toward the Defendant cooperative's General Affairs Section Chief and the Representative Director, including statements to the effect that "if you discipline the employees, you will not be left alone."
The court below then held to the following effect: in light of its purpose, the above collective monthly leave was not a legitimate monthly leave under the Labor Standards Act (근로기준법) but rather an industrial action (쟁의행위) aimed at obstructing the normal operation of the Defendant cooperative in order to achieve the union's demands; considering that the lawful procedures necessary for industrial action, namely the union members' voting procedure and the dispute notification procedure, were not followed, and that the cooperative's operations were paralyzed causing enormous damage to the insured persons, the collective monthly leave constituted an illegitimate industrial action, and thus constituted grounds for disciplinary action for violation of the duty to refrain from collective action under Article 40, Paragraph 10 of the Defendant cooperative's Operating Regulations (운영규정), grounds for suspension from position under Article 35, Item 1 thereof for extremely poor work attitude, and the act of using abusive and violent language, which damaged the cooperative's dignity, constituted grounds for disciplinary action under Article 40, Paragraph 4 of the above Operating Regulations; and further, considering that the Plaintiff, as the union branch chief, encouraged the implementation of the collective monthly leave, and considering the extent of the damage caused by the implementation of the collective monthly leave, the disciplinary action in this case cannot be regarded as an abuse of the right to discipline, and thus the disciplinary dismissal and the suspension from position in this case are legitimate.
Upon examination of the record, the above fact-finding by the court below and its determinations that the implementation of the collective monthly leave constituted industrial action, that such industrial action was not legitimate, and that the disciplinary action cannot be regarded as an abuse of the right to discipline, are all justified, and there is no illegality therein, as argued in the grounds of appeal, such as incomplete deliberation, violation of the rules of evidence, or misapprehension of the legal principles. This ground of appeal is without merit.
2. As to Ground of Appeal No. 2
The purport of "prior consultation" referred to in Article 40 of the collective bargaining agreement (단체협약) of the Defendant cooperative is properly understood, in light of the overall structure and content of the collective bargaining agreement and the practices between labor and management, as merely requiring the Defendant cooperative, in order to prevent the normal activities of the labor union from being obstructed by the Defendant cooperative's arbitrary exercise of personnel authority over labor union officers such as union executives, branch chiefs, and other union officials, to make efforts to obtain the union's understanding, such as by notifying the union in advance of the content of personnel actions concerning union officers, to give the union an opportunity to present its opinion, and additionally to consider the opinion presented by the union as reference material. Therefore, the fact that the disciplinary dismissal in this case against the Plaintiff was carried out without going through the above "prior consultation" does not necessarily render it void. The judgment below, which is to the same effect, is justified, and there is no illegality therein, as argued in the grounds of appeal, in the form of misapprehension of the legal principles concerning the interpretation of the personnel consultation clause under the collective bargaining agreement. This ground of appeal is without merit.
Therefore, 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 Justices participating in the decision.
Justice Park U-dong (Presiding Justice), Kim Sang-won, Yoon Young-chul (Justice in charge), Park Man-ho