[Plaintiffs, Appellees]
[Defendant, Appellant] Dongyang Nylon Co., Ltd., Attorney Oh Seong-hwan, counsel for the Defendant
[Judgment Below] Busan High Court Decision 91Na629 rendered October 10, 1991
[Order]
The judgment below is reversed.
The case is remanded to the Busan High Court.
[Reasoning]
The Court judges the Defendant's counsel's grounds of appeal Nos. 1 and 2 together.
1. The court below found the following facts: the Defendant Company, in its collective agreement with the Dongyang Nylon Labor Union affiliated with the Federation of Korean Textile Workers' Unions (hereinafter abbreviated as the "Labor Union"), has a retirement provision (Article 31) allowing a union member to be immediately retired without going through disciplinary procedures, listing "where a person has been convicted of a criminal offense" (subparagraph 7 of the same Article) as one of the grounds therefor, provided that where the person concerned is an officer of the Labor Union, such action is to be taken after prior consultation with the Labor Union (Article 21, subparagraph 2); the Plaintiffs, who are employees of the Defendant Company, were elected as officers of the Labor Union on April 12, 1989 and, while serving in that capacity, led an illegal labor dispute from June 1 onward, obstructing the work of employees and workers of the Defendant Company and of businesses registered as resident contractors at the Defendant Company, and, in order to actively induce workers to participate in the strike and to prevent them from defecting, resolved to deduct wages from non-participating workers according to the number of days of non-participation, and on June 30 caused striking workers to receive KRW 3,994,000 out of the wages of 369 non-participating workers, thereby extorting such amount; that, upon complaint filed by the Defendant Company and others, the Plaintiffs were indicted while under arrest for the above criminal acts, and on December 29, 1989, the Ulsan Branch of the Busan District Court sentenced Plaintiff 1 and Plaintiff 2 each to one year of imprisonment, and sentenced the remaining Plaintiffs each to one year of imprisonment with two years of suspended execution (although the Plaintiffs appealed against the said judgment, the Busan High Court, on April 12, 1990, affirmed the same criminal facts as found below while reducing the sentence of each to ten months' imprisonment, and the appellate judgment became final and conclusive as to all Plaintiffs by April 20, 1990); and that on December 30, 1989, the Defendant Company, on the ground that the Plaintiffs' aforesaid conduct fell under Article 31, subparagraph 7 of the collective agreement, imposed the retirement disposition at issue in this case upon the Plaintiffs without any prior consultation whatsoever with the Labor Union. Based on these findings, the court below determined that, since the Defendant Company had not consulted with the Labor Union in imposing the retirement disposition upon the Plaintiffs, who were officers of the Labor Union, the retirement disposition at issue must be held void due to a material procedural defect.
2. However, upon examining the relevant evidence against the record, in light of the overall structure and content of the collective agreement as found by the court below, the fact that Article 21, subparagraph 2 thereof provides that "personnel matters and disciplinary actions concerning officers of the Labor Union (executive committee members, delegates) shall be conducted after prior consultation with the Labor Union," thereby requiring "prior consultation" with respect to personnel matters and disciplinary actions in general, and taking into account the relationship of this provision to the collective agreement as a whole as well as the customary practices between labor and management, such "prior consultation" should be understood, unlike a provision requiring the Defendant to obtain the Labor Union's approval or consent, or requiring both labor and management to consult and jointly decide the matter for the purpose of comprehensively restricting the Defendant's authority over personnel matters or disciplinary actions by making such authority subject to the mutual agreement of the Defendant and the Labor Union, as being intended merely to prevent the Defendant's arbitrary exercise of its personnel or disciplinary authority over officers of the Labor Union from impeding the normal activities of the Labor Union, by requiring the Defendant to notify the Labor Union in advance of the content of personnel actions or disciplinary measures concerning officers of the Labor Union, thereby giving the Labor Union an opportunity to present opinions necessary to ensure fairness in personnel actions or disciplinary measures, and having the Defendant merely take the opinions so presented into consideration as reference material. Therefore, the mere fact that the retirement disposition at issue against the Plaintiffs was made without such prior consultation cannot necessarily be said to affect its validity.
Moreover, under Article 31 of the collective agreement, which provides that where a worker falls under a certain ground for retirement, the Defendant is to treat the worker as automatically retired without following a separate procedure such as that applicable to disciplinary measures, in a case such as the present one where the Defendant imposes a retirement disposition upon the Plaintiffs pursuant to that Article, if the Labor Union had already known in advance that such a ground for automatic retirement had already arisen or would soon arise with respect to the Plaintiffs (according to the entry in Exhibit A No. 2, which the court below adopted as evidence, it can be seen that on September 6, 1989, after the Plaintiffs had been detained for the aforementioned criminal acts, the Defendant reached a labor-management agreement with the acting chairman and others representing the Labor Union regarding the situation up to that point, in which the Defendant agreed to recognize the Plaintiffs' status as employees during their period of detention and not to impose any adverse personnel action upon them until the rendering of the first-instance judgment; from this fact, it must be found that the Labor Union already knew, prior to the retirement disposition at issue in this case, that a ground for retirement under Article 31, subparagraph 7 of the collective agreement could arise upon the rendering of a conviction against the Plaintiffs), then there would be no need to require the Defendant to undergo the aforesaid prior consultation procedure once again. Accordingly, it is difficult to conclude that there was a material procedural defect in the retirement disposition at issue in this case merely because the Defendant imposed the retirement disposition without undergoing such prior consultation.
Nevertheless, the court below determined that the retirement disposition at issue against the Plaintiffs was void solely on the ground that the Defendant had not consulted with the Labor Union. The judgment below thus contains an error in misconstruing "prior consultation" as provided in the collective agreement, thereby erroneously determining the validity of the retirement disposition, and it is clear that this error affected the judgment. Accordingly, the argument that appears to point out this error has merit.
3. Therefore, without ruling on the Defendant's counsel's ground of appeal No. 3, the judgment below is reversed, and the case is remanded to the court below for further hearing and judgment. This judgment is rendered as stated in the Order, with the unanimous consent of the participating Justices.