[Parties, Original Court]
【Plaintiff, Appellant】 Hyundai Heavy Industries Co., Ltd. (Attorneys Son Ji-yeol and 6 others, counsel for the plaintiff)
【Defendant, Appellee】 Chairman of the National Labor Relations Commission
【Intervenors for the Defendant】 Intervenor 1 and 4 others (Attorney Kim Jin, counsel for the intervenors)
【Judgment Below】 Seoul High Court Decision 2006Nu13970, rendered April 11, 2007
【Order】
The appeal is dismissed. The costs of the appeal, including those arising from the intervention, shall be borne by the Plaintiff.
【Reasoning】 The grounds of appeal are examined as follows.
1. On whether the Plaintiff qualifies as an "employer" under Article 81, Item 4 of the Trade Union and Labor Relations Adjustment Act (노동조합 및 노동관계조정법; hereinafter "the Act")
A. Article 1 of the Act provides: "The purpose of this Act is to guarantee the right to organize, the right to collective bargaining, and the right to collective action of workers under the Constitution, thereby promoting the maintenance and improvement of working conditions and the enhancement of the economic and social status of workers, 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 81 of the Act provides that "an employer shall not commit any of the unfair labor practices set forth in the following items." Article 82, Paragraph 1 provides: "A worker or trade union whose rights have been infringed by an employer's unfair labor practice may file an application for remedy with the Labor Relations Commission." Article 84, Paragraph 1 provides: "Where the Labor Relations Commission determines that an unfair labor practice has been established, it shall issue a remedial order to the employer, and where it determines that no unfair labor practice has been established, it shall issue a decision dismissing the application for remedy." Thus, Articles 81 through 86 of the Act establish a remedial system for unfair labor practices in order to concretely secure the three labor rights guaranteed under the Constitution and to prevent and eliminate employer conduct that undermines the order of collective labor relations, thereby securing workers' right to organize, right to collective bargaining, and right to collective action, and promptly normalizing the order of labor relations (see Supreme Court Decision 93Da11463, delivered December 21, 1993; Supreme Court Decision 97Nu7448, delivered May 8, 1998, etc.). Accordingly, since the prevention and elimination of unfair labor practices is achieved through remedial orders of the Labor Relations Commission, a person who is in a position holding legal or factual authority or capacity to comply with a remedial order may, to that extent, be regarded as an employer subject to a remedial order as the entity responsible for the unfair labor practice.
Furthermore, Article 81, Item 4 of the Act defines as an unfair labor practice "an act of dominating or interfering with workers' organizing or operating a trade union," among others, and this provision aims to exclude and remedy acts that infringe the right to organize as unfair labor practices, thereby restoring normal labor relations. Accordingly, whether a person qualifies as the employer who is the subject of such domination or interference must be determined by comprehensively considering the content of the relevant application for remedy, the specific form in which that employer is involved in the employment relationship, and the existence and degree of exercise of substantial influence or control over the employment relationship. Therefore, if a person who is in a position to substantially and specifically dominate and determine matters concerning the basic working conditions, etc. of workers, to the extent that such person may be regarded as bearing part of the authority and responsibility of the business owner who employs those workers, commits an act falling under Article 81, Item 4 of the Act, such as dominating or interfering with the organizing or operation of a trade union, that person qualifies as the employer who must comply with a remedial order directing correction of such act.
B. The court below found as follows: (1) the Plaintiff company directly managed the overall content of the work to be performed by workers, including Intervenors 1, 2, 3, and 4 (hereinafter "the Intervenors"), who belonged to in-house subcontractors, for the purpose of the smooth performance of processes and quality control, and, through individual subcontracting agreements, substantially and specifically determined the work dates, working hours, work locations, and work content, thereby managing and controlling the working hours and work schedules; as a result, the Plaintiff company was in a position to exercise substantial decision-making authority over matters such as guaranteeing time for union activities necessary for holding general meetings or delegate assemblies of the trade union, and guaranteeing paid time for union officers' union activities; (2) since the work dates, locations, and content were fixed by the individual subcontracting agreements as described above, the in-house subcontractors merely decided which worker to assign to tasks that had already, in effect, been fixed; (3) workers belonging to the in-house subcontractors performed work within the Plaintiff company's place of business using tools and materials provided by the Plaintiff company, thereby being incorporated into the work order planned by the Plaintiff company, and engaged in shipbuilding work together with the Plaintiff company's directly employed workers; and (4) with respect to the method of carrying out the work, working hours and extensions thereof, rest periods, night work, etc., the workers were, in substance, under the direction and supervision of the Plaintiff company's process managers (foremen or team leaders who were directly employed). Based on a comprehensive consideration of the foregoing, the court below found that the Plaintiff company was in a position to substantially and specifically dominate and determine the basic working conditions, etc. of workers belonging to the in-house subcontractors, including the Intervenors, to the extent that it could be regarded as bearing part of the authority and responsibility of the in-house subcontractors as their employing business owners, and determined that the Plaintiff company, having induced the closure of business of the in-house subcontractors and thereby committed acts of domination or interference that suppressed or infringed the trade union's activities, qualifies as the employer who must comply with the remedial order directing correction of the unfair labor practice under Article 81, Item 4 of the Act.
This determination by the court below is justified in light of the foregoing legal principles, and there is no error of law, as alleged in the grounds of appeal, in misapprehending the legal principles concerning the concept of "employer" under Article 81, Item 4 of the Act. The Supreme Court decisions cited in the grounds of appeal concern different factual circumstances and are not applicable to the instant case.
2. On whether an unfair labor practice under Article 81, Item 4 of the Act was established
The court below found as follows: (1) some workers belonging to the Plaintiff company's in-house subcontractors secretly formed a trade union preparatory committee from around March 2003 and maintained a system of secret union membership; when the identities of some union members were exposed, they held the founding general meeting of Intervenor Hyundai Heavy Industries In-House Subcontract Workers' Trade Union (hereinafter "the Intervenor Union") on August 24 of the same year, and received a certificate of trade union establishment report on August 30 of the same year; on August 26, 2003, the Plaintiff company requested Non-party 1, the representative of the in-house subcontractor "○○ Enterprise," to prevent Intervenor 4, who had been identified as a member of the Intervenor Union, from working at the place of business, causing him to be placed on standby, and on August 29 of the same year, informed Non-party 1 that Intervenor 4 was an officer of the Intervenor Union; (2) most of the Plaintiff company's in-house subcontractors performed work only for the Plaintiff company, and the Plaintiff company was in a position of superiority over the in-house subcontractors, since it could take the initiative in adjusting whether to conclude individual subcontracting agreements with, and the volume of work to be given to, the in-house subcontractors according to its own plans, and additionally held the authority to terminate subcontracting agreements and to cancel the registration of in-house subcontractors; (3) the Plaintiff company warned in-house subcontractors of contract termination, etc., on the ground that workers belonging to them were obstructing the operation of the company by distributing leaflets, etc., at the Plaintiff company; (4) △△△△ Electric, to which Non-party 2, the auditor of the Intervenor Union, belonged, closed its business on August 30, 2003, and Yeongjin Enterprise Co., Ltd. (hereinafter "Yeongjin Enterprise"), to which Intervenor 1, the president of the Intervenor Union, belonged, closed its business on October 8, 2003; in the interim, in-house subcontractors such as Dong-A Industry Co., Ltd. (hereinafter "Dong-A Industry"), to which Intervenor 2 belonged, and ○○ Enterprise (only the outfitting division of which was closed), to which Intervenor 4, the secretary-general of the Intervenor Union, belonged, decided to close their businesses immediately after it was revealed that the Intervenors were officers of the Intervenor Union and immediately after receiving demands for negotiation over working conditions, notwithstanding the absence of any particular managerial circumstances requiring closure; in light of this, it appears that there was no reason for the closures of the above in-house subcontractors other than the establishment of the Intervenor Union; (5) the above in-house subcontractors had been established around 1997 and had operated without any problems until their closures, had never previously experienced labor-management disputes, employed dozens of workers, and closed their businesses before full-fledged collective bargaining had even taken place; in light of these circumstances, the decisions to close business do not appear to have been the independent decisions of the in-house subcontractors; and (6) in the case of Yeongjin Enterprise, immediately after the decision to close business, □□ Industry was established to take over that portion of the business, and in fact a significant number of workers who had belonged to the closed Yeongjin Enterprise transferred their affiliation to □□ Industry and were performing the work of the Plaintiff company's Paint Department No. 5 that Yeongjin Enterprise had previously performed; in the case of Dong-A Industry, immediately after the announcement of closure, Silla Co., Ltd. recruited workers to work in panel assembly and took over the panel assembly work that Dong-A Industry had been performing as is; and although the Plaintiff company had anticipated terminating its contract with ◇◇ Enterprise, the outfitting division of ○○ Enterprise, to which an officer of the Intervenor Union belonged, was suddenly closed, and workers belonging to the outfitting division of ○○ Enterprise joined ◇◇ Enterprise; it does not appear that the small-scale, information-poor in-house subcontractors could have, through their own independent capabilities alone, so swiftly carried out the complex tasks of closing business, recruiting employees, and establishing companies, without causing any disruption to the Plaintiff company's operations. Based on a comprehensive consideration of the foregoing, the court below determined that the Plaintiff company committed acts of inducing the closure of business and thereby committed acts of domination or interference that suppressed or infringed the activities of the Intervenor Union.
This determination by the court below is justified and may be upheld, and there is no error of law, such as misapprehension of the legal principles concerning the establishment of the unfair labor practice of domination or interference under Article 81, Item 4 of the Act. The remaining arguments, which amount to disputing the fact-finding of the court below, do not constitute legitimate grounds of appeal.
3. On the content of the remedial order
The types of unfair labor practices that actually occur are diverse, and their effects vary in multiple ways depending on changes in labor relations; accordingly, the methods and content of remedies for unfair labor practices corresponding thereto must also be flexible and adaptable. Where an employer's act of domination or interference is carried out as a factual act, it is difficult to remove or rescind the act itself so as to restore the original state, and since there is a strong likelihood that the employer's conduct will continue to be repeated into the future, an order prohibiting acts constituting the employer's domination or interference (a cease-and-desist order) may be an appropriate remedial method. Article 8 of the Act also merely provides that the Labor Relations Commission shall issue a remedial order to the employer when it determines that the employer's unfair labor practice has been established, in order to enable the Labor Relations Commission, exercising specialized and purposive judgment, to take appropriate remedial measures suited to each individual case, and does not otherwise specifically prescribe the type or content of the remedial order.
In light of the foregoing purpose, the remedial order issued by the National Labor Relations Commission to the Plaintiff company, after finding the domination or interference at issue in this case to constitute an unfair labor practice, stating that "the Plaintiff shall not commit acts of inducing the closure of business by exercising substantial influence and control, nor acts that suppress or infringe the activities of the trade union as a result thereof," cannot be deemed unlawful. Accordingly, the argument in the grounds of appeal disputing this point is without merit.
4. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal, including those arising from the intervention, are borne by the losing party. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Justice Yang Sung-tae (Presiding Justice), Kim Ji-hyung, Jeon Su-an (Justice in charge), Yang Chang-su