[Plaintiff, Appellee] Dongjin Co., Ltd., Attorney Park Jae-bong, Counsel for the Plaintiff
[Defendant, Appellant] Chairman of the National Labor Relations Commission
[Defendant Intervenor, Appellant]
[Remanding Judgment] Supreme Court Decision 90Nu9421, delivered on May 12, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant Intervenor.
[Reasoning]
1. As to the first ground of appeal.
According to the record, the lower court's findings and determination regarding: (i) the financial and management condition of the Plaintiff Company's First Business Division for the year 1988 and up to May 1989; and (ii) the fact that, prior to implementing the layoff for managerial reasons (jeongri haego) at issue in this case, the First Business Division of the Plaintiff Company engaged in collective bargaining with the labor union on several occasions in an effort to overcome the deteriorating financial condition as found by the lower court, and made efforts to continue the business by explaining the management situation of the First Business Division through labor-management consultations and persuading the labor union — are found to be justified and acceptable, and there is no error of misapprehension of facts as alleged in the argument. This ground of appeal is without merit.
2. As to the second ground of appeal.
According to the facts lawfully found by the lower court, the First Business Division and the Second Business Division of the Plaintiff Company had different actual managers and different physical facilities, and were operated completely independently and separately from each other in terms of personnel, business activities, accounting, etc. The financial condition of the First Business Division deteriorated sharply from around 1988, and by around May 1989, if that trend continued through the end of that year, there was a strong possibility not only that the entire capital of the Plaintiff Company would be eroded but also that bankruptcy would occur. Moreover, separate labor unions were organized for each business division, and each union independently engaged in labor union activities such as collective bargaining with its respective actual manager, such that the employees themselves recognized the First Business Division and the Second Business Division as entirely independent and separate places of business. Under these circumstances, it cannot be said to be unreasonable for the Plaintiff Company to abolish the First Business Division, which was operating at a loss and experiencing severe management difficulties, and to reduce personnel accordingly; therefore, there was an urgent managerial necessity for the Plaintiff Company to abolish the First Business Division and reduce personnel. Furthermore, in abolishing the First Business Division due to such urgent managerial necessity, it cannot be said that selecting all employees belonging to the First Business Division as subjects of dismissal was inequitable. In addition, in light of the actual operating conditions of the First Business Division and the Second Business Division, it does not appear that the Second Business Division could have absorbed all or part of the employees belonging to the First Business Division. Accordingly, there existed special circumstances such that no particular effect could have been expected even if prior consultation had been held with the labor union or the employees regarding the necessity, timing, scale, and method of the layoff for managerial reasons (as to the timing of the dismissal, the Plaintiff Company gave advance notice approximately one month beforehand). Therefore, the mere fact that the Plaintiff Company did not hold prior consultation with the labor union or the employees in carrying out the layoff for managerial reasons with respect to all employees belonging to the First Business Division cannot render the layoff invalid.
Although the lower court did not provide any explanation as to whether the prior consultation procedure was followed and the effect of the layoff for managerial reasons in that regard, in light of its holding that the layoff for managerial reasons in this case was justified, it appears to have taken the same position as set forth above. Accordingly, there is no error in the lower court's judgment of misapprehension of the legal principles regarding the requirements for a layoff for managerial reasons, nor is there any inconsistency in the reasoning. This ground of appeal is also without merit.
3. As to the third ground of appeal.
Whether the dismissal of an employee constitutes an unfair labor practice must be determined by whether the dismissal, in substance, falls under the grounds set forth in Article 39 of the Trade Union Act (노동조합법). Accordingly, where it is found that, notwithstanding the ostensible ground for dismissal put forth by the employer, the employer in substance dismissed the employee on the ground that the employee engaged in legitimate activities for labor union affairs, such dismissal must be deemed an unfair labor practice. This is the view that this Court has repeatedly taken (see Supreme Court Decision 88Nu4508, delivered on May 23, 1989; Supreme Court Decision 89Nu1193, delivered on January 12, 1990; Supreme Court Decision 89Nu8217, delivered on August 10, 1990; Supreme Court Decision 90Nu6132, delivered on February 22, 1991; Supreme Court Decision 90Nu7685, delivered on April 23, 1991, etc.).
Furthermore, whether an employee's legitimate labor union activity for union affairs constituted the substantial ground for dismissal must be determined comprehensively by comparing and examining the ground for dismissal asserted by the employer with the content of the employee's legitimate activity for union affairs, the relationship between the employer and the labor union, the timing of the dismissal, and other circumstances from which the existence of an intent to commit an unfair labor practice may be inferred (see Supreme Court Decision 90Nu6132, delivered on February 22, 1991; Supreme Court Decision 90Nu7685, delivered on April 23, 1991).
In this case, although the deterioration of the management condition of the Plaintiff Company's First Business Division was attributable to the labor union's excessive demands for wage increases and the strike carried out to achieve them, in light of: the fact that, as noted above, the layoff for managerial reasons in this case is found to have been based on urgent managerial necessity; the fact that the actual manager of the First Business Division, in an effort to restore the business's management, explained the then-deteriorating management condition of the First Business Division to the labor union and continued efforts to avoid the dismissal through six rounds of collective bargaining, etc., over a considerable period from March 16, 1989 to around April 20 of the same year, prior to the dismissal; the fact that, notwithstanding this, the labor union repeatedly demanded only a drastic 39.4% wage increase, and even at the labor-management consultation held in May of that year, continued to insist on a high wage increase of 27.6%, such that no agreement was reached, whereupon, rather than continuing negotiations, the union filed a notice of the occurrence of a labor dispute on May 16 of that year, and on May 19 filed an application for relief from unfair labor practice with the Busan Regional Labor Relations Commission, alleging that the Plaintiff Company was avoiding collective bargaining, and further, on May 30, held an extraordinary general meeting of union members and resolved to go on strike beginning June 10 of that year; and the fact that the total number of employees belonging to the First Business Division was 195, of whom 122 were union members, while the subjects of the layoff for managerial reasons were all employees belonging to the First Business Division — it cannot be concluded that the layoff for managerial reasons in this case arose from an aversion to the labor union's legitimate activities or was based on an intent to commit an unfair labor practice.
In the same vein, the lower court's determination that the layoff for managerial reasons in this case was justified and cannot be regarded as constituting an unfair labor practice is justified, and there is no error of misapprehension of the legal principles concerning unfair labor practices or of insufficient deliberation. This ground of appeal is also without merit.
4. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This Decision is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Park Jun-seo
Justice Kim Sang-won
Justice Yoon Young-cheol (Presiding Judge for the Report)
Justice Park Man-ho