[Order]
All appeals are dismissed.
[Reasoning]
The grounds for appeal are examined.
1. As to the Defendants' grounds of appeal
A. As to the legality of the labor union's industrial action in this case
Article 1 of the Act on the Organization and Adjustment of Labor Relations (hereinafter referred to as the "Act") provides: "The purpose of this Act is to guarantee workers' right to organize, right to collective bargaining, and right to collective action under the Constitution, thereby promoting the maintenance and improvement of working conditions and the enhancement of workers' economic and social status, and to fairly adjust labor relations and prevent and resolve labor disputes, thereby contributing to the maintenance of industrial peace and the development of the national economy." Article 4 of the Act provides: "Article 20 of the Criminal Act (형법) shall apply to legitimate acts performed by a labor union through collective bargaining, industrial action, or other acts, in order to achieve the purpose set forth in Article 1." Article 37(1) of the Act provides: "Industrial action shall not violate statutes or other social order in its purpose, methods, and procedures." Accordingly, for a worker's industrial action to constitute a justifiable act under criminal law, all of the following conditions must be satisfied: first, the subject must be a party capable of being a party to collective bargaining; second, the purpose must be to foster autonomous bargaining between labor and management for the improvement of working conditions; third, the action must commence when the employer has refused collective bargaining regarding specific demands for the improvement of workers' working conditions, and, absent special circumstances, must go through procedures prescribed by statute, such as a resolution of approval by union members; and fourth, the means and methods must be in harmony with the employer's property rights and must not amount to the exercise of violence (see Supreme Court en banc Decision 99Do4837, decided October 25, 2001; Supreme Court Decision 2007Do1557, decided January 18, 2008, etc.). Furthermore, where the purposes pursued in an industrial action are multiple and some of them are illegitimate, the legitimacy of the purpose of the industrial action must be determined based on the propriety of the primary or genuine purpose (see Supreme Court Decision 2010Do11030, decided January 27, 2011, etc.).
The court below, upon comprehensively examining the adopted evidence, found the facts as stated in its reasoning, and first, with respect to the legality of the labor union's industrial action around August 2005, determined as follows: although the labor union may be seen, in part, as having asserted matters against the subcontracting companies, who were the employers, concerning the direct employment and continued employment of subcontractor workers by Nonindicted Company 1, the ordering company, matters that are somewhat removed from the improvement of working conditions, the primary purpose of the industrial action was matters concerning the improvement of working conditions of the irregular workers employed by the subcontracting companies, and thus the legitimacy of the purpose is recognized; the industrial action also satisfied procedural legitimacy; and although some union members deviated from the originally reported place and method during the course of the assembly, this is insufficient to render the entire industrial action unlawful. Furthermore, with respect to the legality of the labor union's industrial action around June and July 2005, the court below determined that the unfair labor practices committed by the Defendants around June and July 2005 as charged in this case were not directed at any unlawful industrial action conducted by workers around that time, but were aimed at obstructing the workers' very act of joining the labor union and their very participation in union activities; therefore, even if the labor union did conduct substantial industrial action around June and July 2005 and even if the procedures and methods of that industrial action were partly not legitimate, the Defendants' aforementioned obstructive acts still constitute unfair labor practices, and thus found the Defendants guilty on this part of the charges.
Examining the reasoning of the judgment below in light of the legal principles set forth above and the evidence lawfully adopted by the court below, the fact-finding and determination of the court below as described above are justifiable and acceptable, and there is no illegality therein, such as violating the rules of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or misunderstanding the legal principles concerning justifiable acts, as alleged in the grounds of appeal.
B. As to whether the posting of each of the notices constitutes unfair labor practice
While it is self-evident that an employer has the freedom of speech to express opinions through speeches, in-house broadcasts, notices, letters, etc., where, considering comprehensively the content of the expressed opinion together with the circumstances, timing, place, and method in which it was made, and the effect it has had or may have on the organization or activities of the labor union, an intent to dominate or interfere with the organization, operation, or activities of the labor union is recognized, this constitutes "an act of dominating or interfering with workers' organizing or operating a labor union," and thus constitutes an unfair labor practice; moreover, the establishment of an unfair labor practice by way of such domination or interference does not necessarily require the occurrence of a result of infringement of workers' right to organize (see Supreme Court Decision 2006Do388, decided September 8, 2006, etc.).
The court below, in the same vein, determined that the acts of posting each of the notices in this case went beyond the level of simply expressing the employer's opinion on the labor union's industrial action, and constituted acts that created a sense of insecurity regarding employment status among the members of the labor union in this case, by threatening that continuation of union activities could result in civil and criminal liability as well as dismissal, thereby suppressing union activities; and further determined that this constituted an attempt to influence the judgment and conduct of individual union members and even the operation of the labor union, and thus constituted an act of interference with the operation of the labor union, which determination is justifiable, and there is no illegality therein, such as misunderstanding the legal principles concerning unfair labor practices or violating the rules of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, as alleged in the grounds of appeal.
2. As to the grounds of appeal of Defendants 2 and 4
The court below, upon the adopted evidence, found the facts as stated in its reasoning, and then determined as follows: the "outside forces" referred to in each of the statements for which Defendants 2 and 4 requested workers' signatures meant labor unions, including the labor union in this case and the Korean Confederation of Trade Unions, and, in light of the fact that the content of each statement was, in essence, a pledge never to participate in the activities of the labor union in this case, the act of Defendants 2 and 4 in demanding that workers sign each statement went beyond simply preventing damage caused by workers' illegal strikes and normally operating the company, and constituted an act of dominating or interfering with workers' organizing or operating a labor union as prescribed in Article 81(4) of the Act, thus constituting an unfair labor practice.
Examining the reasoning of the judgment below in light of the evidence lawfully adopted by the court below, this determination of the court below is justifiable and acceptable, and there is no illegality therein, such as violating the rules of logic and experience and exceeding the bounds of the principle of free evaluation of evidence, or misunderstanding the legal principles concerning unfair labor practices and failing to exhaust the necessary examination, as alleged in the grounds of appeal.
3. As to the grounds of appeal of Defendant 1
The court below, upon comprehensively examining the adopted evidence, found the facts as stated in its reasoning, and then determined: (1) that Defendant 1, on July 20, 2005, by making the statements set forth in this part of the charges directly to workers Nonindicted 2, 3, 4, 5, and 6, or through Nonindicted 7 and Nonindicted 8, committed an act of dominating or interfering with workers' organizing or operating a labor union; and (2) that the disciplinary action taken on September 12, 2005 against Nonindicted 9, 10, 11, and 12 constituted an unfair labor practice, in that it was an act of disadvantaging the workers on the ground that they had engaged in legitimate acts for union business, such as participating in the strike from August 4, 2005 to September 6, 2005, and accordingly found the Defendant guilty on all of this part of the charges.
Examining the reasoning of the judgment below in light of the evidence lawfully adopted by the court below, the above determinations of the court below are all justifiable and acceptable, and there is no illegality therein, such as failing to exhaust the necessary examination or misunderstanding the legal principles concerning unfair labor practices, as alleged in the grounds of appeal.
Furthermore, the court below's determination that Defendant 1's unfair labor practice relating to the aforementioned disciplinary action of September 12, 2005 falls under Article 81(1) of the Act is justifiable, and even assuming that the said unfair labor practice falls under Article 81(5) of the Act, since Article 81(1) and Article 81(5) of the Act are each specific types of unfair labor practice by way of disadvantageous treatment, differing only in the reason for the disadvantageous treatment, with no difference in the nature of the offense or the statutory penalty, it cannot be said that any error in the application of law affected the outcome of the judgment; therefore, this part of the grounds of appeal cannot be accepted either.
4. As to the Prosecutor's grounds of appeal
A. As to the point of obstructing Defendant 1's participation in the strike on August 4, 2005
The court below, upon the statements in the written statements of Nonindicted 13 and 4, found the fact that four persons, including Nonindicted 14 and 15, managers of the company operated by Defendant 1, locked the door and engaged in other such acts on August 4, 2005, in order to prevent Nonindicted 13 and 4 from participating in the labor union's strike assembly; however, the court below found that there was no evidence sufficient to establish that the Defendant personally committed the above acts or instructed Nonindicted 14 and others to commit the above acts, and that the mere fact that the Defendant, as the employer of Nonindicted 14 and others, was at the time taking a position opposed to the workers' union activities or the strike is insufficient to establish that the Defendant conspired in the above act of obstructing participation in the strike committed by Nonindicted 14 and others; and, on these and other grounds, rendered a verdict of acquittal on this part of the charges against the Defendant.
Examining the reasoning of the judgment below in light of the record, this determination of the court below is justifiable and acceptable, and there is no illegality therein, such as violating the rules of logic and experience and exceeding the bounds of the principle of free evaluation of evidence.
B. As to the point of Defendant 3's demand for signatures on the statement
A protocol containing the statement of a suspect who has become a defendant, prepared by a prosecutor, may be admitted as evidence only where it is recognized, through the defendant's statement made in preparation for trial or on the trial date, that the protocol was prepared in accordance with lawful procedure and form and that its content is identical to what the defendant stated, and where it is proved that the statement contained in the protocol was made under circumstances that lend it particular credibility (Article 312(1) of the Criminal Procedure Act (형사소송법)). Where the defendant denies the authenticity of the formation of the protocol, it may be admitted as evidence only where it is proved, through a video recording or other objective means, that the statement contained in the protocol is identical to what the defendant stated, and where it is proved that the statement contained in the protocol was made under circumstances that lend it particular credibility (Article 312(2) of the same Act). Furthermore, where the original speaker recognizes the substantive authenticity of the formation of only a part of a protocol containing the statement of a suspect or a person other than the suspect prepared by a prosecutor, in preparation for trial or on the trial date, the court must specifically examine which part of the protocol is recorded as the original speaker stated and which part is recorded differently, and must recognize the admissibility of evidence only as to the part that is recorded as stated, while denying the admissibility of evidence as to the remaining part for which substantive authenticity of formation is denied (see Supreme Court Decision 2005Do1849, decided June 10, 2005).
The court below determined as follows: among the evidence submitted by the prosecutor, the only direct evidence capable of establishing this part of the charges concerning Defendant 3's demand for signatures on the statement is the prosecutor's suspect examination protocol of the Defendant; however, as to the portion of the Defendant's statement relating to the statement, the Defendant, the original speaker, denied its substantive authenticity of formation at the trial of the first instance court, and there is no material sufficient to recognize the substantive authenticity of formation of that portion, and thus it lacks admissibility as evidence; and the mere fact that most of the subcontracting companies, other than the company operated by the Defendant, engaged in the act of obtaining signatures on the statement from their workers is insufficient to conclude that the said company likewise engaged in the act of obtaining signatures on the statement from its employed workers; and, on these and other grounds, rendered a verdict of acquittal on this part of the charges against the Defendant.
Examining the reasoning of the judgment below in light of the aforementioned legal principles and the record, this determination of the court below is justifiable and acceptable, and there is no illegality therein, such as misunderstanding the legal principles concerning the admissibility of a suspect examination protocol prepared by a prosecutor, as alleged in the grounds of appeal.
5. Conclusion
All appeals are dismissed, and it is so decided as stated in the Order by the unanimous consent of the participating Justices.
Justice Lee Sang-hoon (Presiding Justice), Shin Young-cheol, Kim Yong-deok, Kim So-young (Justice in charge)