[Plaintiff, Appellee] Korean Red Cross Labor Union (Attorneys Park Gu-jin and 1 other, Counsel for the plaintiff)
[Defendant, Appellant] Head of Seoul Regional Employment and Labor Office
[Judgment below] Seoul High Court Decision 2000Nu10511 delivered on May 31, 2001
[Order]
The appeal is dismissed. The costs of appeal are to be borne by the Defendant.
[Reasoning]
We examine the grounds of appeal.
1. The court below, partially adopting the judgment of the first instance, found as follows: the Plaintiff Union is an enterprise-level single labor union organized with employees working for the Korean Red Cross as its organizing target, which completed its establishment report on March 6, 1999 and received its establishment report certificate on March 8 of the same month, and which on September 1, 1999 resolved to establish a branch at the Eastern Red Cross Blood Center, a subordinate organization of the Korean Red Cross (hereinafter "the instant resolution") (the Eastern Red Cross Blood Center Branch of the Plaintiff Union completed its establishment report on March 24, 2000 and received its establishment report certificate on March 27 of the same month). The court below also found that the National Health and Medical Workers' Union (hereinafter "the National Health and Medical Union") is a nationwide industry-level single labor union organized with health and medical industry workers, etc. as its organizing target, which completed its establishment report on March 9, 1998 and was issued its establishment report certificate on March 13 of the same month; that the Central Red Cross Blood Center Labor Union, an enterprise-level single labor union established around March 7, 1989 with employees belonging to the Central Red Cross Blood Center, a subordinate organization of the Korean Red Cross, as its members, became, through a resolution to change its organizational form, the Central Blood Center Branch of the Seoul Regional Headquarters of the National Health and Medical Union; that at the regular general meeting of union members of the Central Blood Center Branch of the National Health and Medical Union held on March 2, 1999, a resolution was passed to amend the branch's operating rules so as to expand and change the organizing target to include health and medical industry workers belonging to the Eastern Red Cross Blood Center, the Southern Red Cross Blood Center, and the Western Red Cross Blood Center, in addition to the Central Red Cross Blood Center, and to change the branch's name to "Seoul Red Cross Institutions Branch, Seoul Regional Headquarters, National Health and Medical Industry Workers' Union" (hereinafter "the instant organizational change resolution"); that at the time of the instant organizational change resolution, no employee working at the Eastern Red Cross Blood Center was present; and that thereafter, around August 24, 1999, seven employees working at the Eastern Red Cross Blood Center, including non-party [Name Omitted], joined the Seoul Red Cross Institutions Branch of the National Health and Medical Union, such that as of September 1, 1999, the date of the instant resolution, a total of nine employees belonging to the Eastern Red Cross Blood Center were enrolled as members of that branch. Based on these findings, the court below made the following determination.
That is, the Central Red Cross Blood Center and the Eastern Red Cross Blood Center are separate places of business each capable of determining working conditions, and the instant organizational change resolution, whereby the Central Blood Center Branch of the National Health and Medical Union decided to amend its branch bylaws to expand its organizing target to include employees belonging to the Eastern Red Cross Blood Center without the participation of employees belonging to the Eastern Red Cross Blood Center, cannot be permitted because substantial identity in the union's personal composition is not maintained; furthermore, since the result would be that a labor union is formed at the Eastern Red Cross Blood Center, an independent place of business, and its organizational form, membership eligibility, etc. are determined by the resolution of the Central Blood Center Branch of the National Health and Medical Union, this also runs counter to the autonomy and democracy of labor unions and thus cannot be permitted. Accordingly, the instant organizational change resolution is invalid.
Even assuming that the instant organizational change resolution were valid, the labor union referred to in Article 5(1) of the Addenda to the Trade Union and Labor Relations Adjustment Act (노동조합및노동관계조정법, hereinafter "the Trade Union Act") in the phrase "where a labor union is organized in one business or place of business" (hereinafter, for convenience, "the existing labor union") should be construed as referring to an enterprise-level single labor union or its equivalent, i.e., a branch or sub-branch of a supra-enterprise industry-level, occupation-level, or region-level single labor union organized with employees belonging to one business or place of business having independent authority to determine working conditions as its organizing target, which possesses its own bylaws and executive body, acts as an independent organization, and has the capacity to independently conduct collective bargaining and conclude collective agreements without delegation from the single labor union. The Seoul Red Cross Institutions Branch of the National Health and Medical Union is clearly a branch of the National Health and Medical Union, a nationwide industry-level single labor union, and does not constitute an enterprise-level single labor union. Moreover, the bylaws of the National Health and Medical Union provide, in effect, that the representative for all collective bargaining within the National Health and Medical Union shall be the union chairperson, and that the union chairperson may, when deemed necessary, designate a branch head, etc. and delegate bargaining authority to such person; thus, the Seoul Red Cross Institutions Branch of the National Health and Medical Union cannot be said to independently possess the capacity to conduct collective bargaining and conclude collective agreements. In addition, no separate establishment report has been filed for the labor union branch. Therefore, it cannot be regarded as an independent labor union, nor can it be deemed equivalent to an enterprise-level single labor union.
Therefore, the Seoul Red Cross Institutions Branch of the National Health and Medical Union does not constitute the existing labor union referred to in Article 5(1) of the Addenda to the Trade Union Act, and the instant corrective order, which is premised on the instant resolution violating this provision, is unlawful.
2. In light of the effect of an organizational change—namely, that the union after the change succeeds, as is, to the status of the union before the change as the subject of property relations and collective agreements—an organizational change involving a modification of the scope of union membership while the labor union continues to exist is permitted only within the scope in which substantial identity between the union before and after the change is recognized. Furthermore, since a labor union must be autonomously organized and democratically operated with the employees who are its members as the principal actors, a labor union composed of employees of one place of business cannot form a labor union of another place of business or determine its organizational form, etc. (see Supreme Court Decision 95Nu4377 delivered on July 25, 1997). Here, the term "labor union" should be construed as including a branch or sub-branch of an industry-level, region-level, or occupation-level single labor union organized at an independent business or place of business having authority to determine working conditions.
However, the expansion and modification by the Central Blood Center Branch of the National Health and Medical Union of its organizing target to include health and medical industry workers belonging to the Eastern Red Cross Blood Center, the Southern Red Cross Blood Center, and the Western Red Cross Blood Center, in addition to the Central Red Cross Blood Center, cannot be permitted because substantial identity is not maintained in the personal composition of the union branch; furthermore, the result would be that a labor union is formed at the Eastern Red Cross Blood Center, an independent place of business, and its organizational form, membership eligibility, etc. are determined by the resolution of the Central Blood Center Branch of the National Health and Medical Union, thereby giving rise to a situation in which the establishment, etc. of a labor union by employees belonging to the Eastern Red Cross Blood Center is restricted, which also runs counter to the autonomy and democracy of labor unions. Therefore, it cannot be permitted.
The determination of the court below, holding to the same effect that the instant organizational change resolution is invalid, is justified, and there is no error of law due to misunderstanding of the legal principles concerning the organizational change of labor unions.
The ground of appeal criticizing this point is not accepted.
3. Article 5 of the Trade Union Act (before amendment by Act No. 6456 of March 28, 2001; the same shall apply hereinafter) provides that "employees may freely organize or join a labor union," thereby generally permitting the establishment of multiple labor unions. Meanwhile, Article 5(1) of the Addenda thereto provides that "where a labor union is organized in one business or place of business, notwithstanding the provisions of Article 5, no new labor union having the same organizing target as that labor union may be established until December 31, 2001." This provision is intended to temporarily prohibit the establishment of multiple labor unions until measures necessary for the unification of bargaining channels, such as methods and procedures therefor, are devised, in anticipation of the confusion in collective bargaining and conflicts between labor unions that could arise if the establishment of multiple labor unions were immediately permitted in Korea's industrial field, which is centered on enterprise-level single labor unions organized at the level of a business or place of business. Accordingly, "where a labor union is organized in one business or place of business" under Article 5(1) of the Addenda refers to a case where an enterprise-level single labor union has been established; provided, however, that in light of the above legislative purpose, this should also be construed as including a case that may be regarded as equivalent to an enterprise-level single labor union, namely, a branch or sub-branch of a supra-enterprise industry-level, occupation-level, or region-level single labor union organized with employees belonging to one business or place of business having independent authority to determine working conditions as its organizing target, which possesses its own bylaws and executive body, acts as an independent organization, and has independent capacity to conduct collective bargaining and conclude collective agreements with respect to matters unique to the organization or its members.
In the instant case, as lawfully determined by the court below, at the time of the instant resolution by which the Plaintiff Union decided to establish a branch at the Eastern Red Cross Blood Center, only approximately nine employees belonging to the Eastern Red Cross Blood Center had joined the National Health and Medical Union, and there was no single labor union organized with employees belonging thereto as its organizing target, nor any branch or sub-branch of an industry-level, occupation-level, or region-level single labor union that could be regarded as equivalent thereto. Therefore, the instant resolution of the Plaintiff Union cannot be said to violate Article 5(1) of the Addenda to the Trade Union Act.
The determination of the court below to the same effect is justified, and there is no error of law due to misunderstanding of the legal principles concerning Article 5(1) of the Addenda to the Trade Union Act.
The ground of appeal criticizing this point is also not accepted.
4. Therefore, the appeal is dismissed, and the costs of 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 Justices involved.
Justice Yoon Jae-sik (Presiding Justice), Song Jin-hoon (Justice in charge), Lee Gyu-hong