[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Intervenor for Defendant] Hankook Ilbo Co., Ltd., Attorney Lee Bong-gu, Counsel
[Judgment Below] Seoul High Court Decision 91Gu28506 rendered on July 31, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
We examine the grounds of appeal.
As to Ground No. 2
According to the reasoning of the judgment below, the court below found the following facts: the Plaintiff failed to faithfully perform the proofreading duties assigned to him at the company that is the Intervenor for the Defendant (hereinafter "the Intervenor company"), thereby imposing on other employees the burden of taking over the Plaintiff's workload, while repeatedly engaging in conduct disparaging other employees as petty persons, resulting in frequent conflicts with other employees; from around July 3, 1989, the Plaintiff carried a magnifying glass and behaved as if his eyesight had weakened to the point where he could not see the characters, thereby failing to perform his duties faithfully; accordingly, on January 1, 1990, the Intervenor company transferred the Plaintiff to a position in the editorial bureau director's office performing specific tasks assigned by the editor-in-chief, without fixed duties. Thereafter, since the Intervenor company had no particular duties to assign to the Plaintiff and the Plaintiff continued to cause friction with other employees, the Intervenor company deliberated over the Plaintiff's assignment; when an eyesight test conducted on the Plaintiff revealed that his corrected vision was 1.0 or above in both eyes, indicating no impediment to performing proofreading duties, the Intervenor company, on June 1, 1991, transferred the Plaintiff back to the proofreading department, overriding the strong objections of the head of the proofreading department, Nonparty 1, and other proofreading department staff. Even after being reassigned to the proofreading department, the Plaintiff failed to harmonize with other employees and continued to cause conflicts, such that Nonparty 1 requested the Intervenor company to transfer the Plaintiff, and when this request was not accepted, Nonparty 1 even submitted a letter of resignation. On July 22, 1991, at approximately 17:30, upon seeing Nonparty 2, deputy head of the special feature department, and cartoonist Nonparty 3 laughing while discussing work matters, the Plaintiff suddenly began shouting abusive language and creating a disturbance, and when Nonparty 4, the editor-in-chief, attempted to stop him, the Plaintiff also hurled abusive language at him and continued his unruly behavior. Accordingly, the Intervenor company referred the Plaintiff to the disciplinary committee, and a disciplinary committee meeting was held on August 16 of the same year at approximately 14:00, at which the Plaintiff used disrespectful language toward the disciplinary committee members, at times pounding on the desk and shouting loudly, and distributed to the committee members a flyer stating that referring him to the disciplinary committee was an absurd act. The court below also found that Article 16 of the Intervenor company's Rules on Commendation and Discipline (hereinafter "the Disciplinary Rules") provides, as grounds for discipline, in item 1, "violation of company rules or company orders, or disturbance of order within the company," and in item 2, "malfeasance in duty or negligence in the performance of duty." Based on the above findings of fact, the court below determined that the Plaintiff's habitual self-righteous conduct undermining harmony within his work department and his failure to faithfully perform his assigned duties constituted grounds for discipline under item 2 of Article 16 of the Disciplinary Rules, and that his hurling abusive language at another employee during working hours and at his superior who attempted to stop him, thereby creating a disturbance, constituted grounds for discipline under item 1 of Article 16 of the Disciplinary Rules; and that, in light of the content and degree of such misconduct and the Plaintiff's attitude at the disciplinary committee, the Intervenor company's imposition of indefinite suspension on the Plaintiff constituted an appropriate exercise of the employer's inherent authority recognized for the maintenance of corporate order.
Upon examining the record in light of the reasoning stated in the judgment below, the above fact-finding and determination of the court below are all deemed justified and acceptable, and there is no illegality of insufficient deliberation or fact-finding without evidence, as argued in the grounds of appeal, in the process thereof. Furthermore, based on the facts found by the court below, the determination of the court below that the imposition of indefinite suspension on the Plaintiff was appropriate is also justified, and there is no illegality of erroneous determination regarding abuse of disciplinary authority.
Therefore, this ground of appeal is without merit.
As to Ground No. 1
In order for a collective agreement to apply, pursuant to the general binding force provision of Article 37 of the Trade Union Act (노동조합법), to a worker not otherwise subject to the collective agreement, it is necessary that more than half of the workers of the same kind ordinarily employed at a single factory, workplace, or other place of business (hereinafter "workplace") be subject to one collective agreement. Here, "workers of the same kind ordinarily employed" means the total number of workers serving as the standard for calculating the ratio of workers subject to a single collective agreement being more than half; this refers to all workers of the same kind who are, in fact, continuously employed at the workplace, regardless of the worker's status or type (staff member, laborer, contract employee), whether or not the employment period is fixed (regular employee, temporary employee), or the title used in the employment contract. Accordingly, even workers employed under short-term contracts are included herein if their contracts have been repeatedly renewed upon expiration such that they have, in fact, been continuously employed. Furthermore, where the scope of application of a collective agreement concluded at the workplace level is not specified, or where the provisions of the agreement apply commonly to all job categories, all workers within the workplace, without distinction as to job category, shall be deemed workers of the same kind.
The court below found the following facts: the labor union rules of the Intervenor company provide that all employees except those at or above the level of department head are eligible for union membership, regardless of rank or job category, and the Plaintiff admits that he did not join the labor union; around the time of the Plaintiff's suspension, the total number of employees of the Intervenor company was 1,906, of which 1,703 employees at or below the level of deputy department head were eligible for union membership, and the actual number of employees who had joined the union was 758, meaning that approximately 45% of those eligible for union membership had joined the union; and the Intervenor company classifies its employees into regular employees and contract employees, with contract employees ordinarily hired for a one-year term, though sometimes hired for short terms of two or three months; however, since contract employees also perform proofreading, transportation, cleaning, and other duties ordinarily incidental to the Intervenor company's business operations, in ordinary cases their contracts are renewed immediately upon expiration of the employment term, and due to this personnel management practice, the Intervenor company ordinarily employs approximately 500 contract employees in addition to approximately 1,400 regular employees. Based on these facts, the court below determined that, in the Intervenor company, the approximately 1,700 employees eligible for union membership, regardless of whether their status was that of regular employee or contract employee, constituted workers of the same kind ordinarily employed; therefore, it was clear that, at the time of the aforementioned suspension, the number of workers subject to the collective agreement did not exceed half of the number of workers ordinarily employed, and thus the collective agreement of the Intervenor company did not have the general binding force under Article 37 of the Trade Union Act and applied only to union members. In such a case, provisions of the employment rules, etc., that conflict with the collective agreement have no effect as against those subject to the collective agreement, but do apply to workers not subject to the agreement; accordingly, Article 18, item 3 of the Disciplinary Rules applies to the Plaintiff, and thus the indefinite suspension imposed on the Plaintiff, having been made pursuant to the said Disciplinary Rules, is valid. Upon examining the record, the above fact-finding by the court below is deemed justified and acceptable, and, as discussed above, since "workers of the same kind ordinarily employed" in relation to the application of the general binding force of a collective agreement means workers of the same kind who are, in fact, continuously employed within a single workplace, the determination of the court below including contract employees within the scope of workers of the same kind ordinarily employed, and further determining, on that premise, that the collective agreement does not apply to the Plaintiff and the Disciplinary Rules apply instead, is also justified. There is no illegality of misunderstanding the legal principles concerning the general binding force of a collective agreement by erroneously construing the meaning of "workers of the same kind ordinarily employed," as argued in the grounds of appeal. This ground of appeal is also 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 participating Justices.
Presiding Justice Choi Jong-yeong
Justice Lee Hoi-chang
Justice Bae Man-un
Justice Kim Seok-su