[Plaintiff, Appellant] Yeongil Land Improvement Cooperative, Litigation Representative Hongik Law Firm, Attorney in charge Ahn Dong-il
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Intervenor for the Defendant] Intervenor for the Defendant
[Judgment Below] Seoul High Court Decision 91Gu25019 dated May 29, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
As to Ground 2
According to the reasoning of the judgment below, the court below found, based on the evidence cited therein, the following facts: that the Intervenor for the Defendant (hereinafter referred to as "the Intervenor") was appointed as an electrical technician of the Plaintiff Cooperative on January 21, 1985, and worked at the Plaintiff Cooperative's headquarters located in Heunghae-eup, Yeongil-gun, Gyeongsangbuk-do; that around November 1988, when the labor union of the Plaintiff Cooperative was established, he participated as one of its founding members and thereafter acted as a rank-and-file union member; that at the time of the union's establishment, the number of union members reached 44, but between January and April 1990, shortly after non-party [Name] assumed office as the chairman of the Plaintiff Cooperative on December 26, 1989, as many as approximately 30 members voluntarily withdrew from the union, leaving only about 10 members, including the Intervenor, remaining as union members; that although the Intervenor was qualified to join the labor union under the collective bargaining agreement with the Plaintiff Cooperative, the said non-party, on two occasions in late May and late June 1990, when the Intervenor came to obtain approval, told him in an intimidating manner that electrical technicians could not become union members and urged him to withdraw from the union, but the Intervenor refused to comply; that the said non-party, on the ground that the Intervenor had been caught leaving his post while on night duty on August 29, 1990, transferred the Intervenor to the Pohang Branch Office of the Plaintiff Cooperative on September 8, 1990, and then, upon the regular rotational personnel reassignment on February 28, 1991, transferred him again to the Business Division of the Cooperative headquarters, and thereafter, around May 1991, recommended to the Governor of Gyeongsangbuk-do—who had been delegated authority by the Minister of Agriculture, Forestry and Fisheries to order personnel exchanges among land improvement cooperatives for cooperative employees—that the Intervenor be transferred out; that upon the Governor of Gyeongsangbuk-do's personnel exchange order dated May 13, 1991, directing the transfer of the Intervenor to Uiseong Land Improvement Cooperative, the Plaintiff Cooperative accordingly issued an order on May 17 of the same month transferring the Intervenor to Uiseong Land Improvement Cooperative; and that as a result of transferring the Intervenor, the Plaintiff Cooperative no longer had any employee qualified as an electrical safety officer under the Electric Utility Act (전기사업법), and thus had to entrust the electrical safety management of the ten pumping stations previously managed by the Intervenor to non-party Korea Safety Management Corporation, thereby incurring an additional annual budget expenditure of approximately 2,000,000 won, while the Intervenor suffered the disadvantage of having to leave Heunghae-eup, Yeongil-gun, his place of residence and livelihood, and work in Uiseong-eup, Uiseong-gun, Gyeongsangbuk-do. Upon examining the record in light of the evidence cited by the court below, the above factual findings of the court below are deemed justified and acceptable, and it cannot be said that there was any failure to exhaustively examine the evidence, or that facts were found without evidence, or that the rules of evidence were violated, as argued in the grounds of appeal. Therefore, this ground of appeal is without merit.
As to Ground 1
1. Article 35 of the Farmland Improvement Promotion Act (농촌근대화촉진법) provides in Paragraph 1 that the employees of a land improvement cooperative shall be appointed by the cooperative chairman, and provides in Paragraph 2 that the Minister of Agriculture and Fisheries may, when deemed necessary for the effective performance of the cooperative's business, order the relevant cooperative chairman to carry out personnel exchanges of cooperative employees between cooperatives. The authority of the Minister of Agriculture and Fisheries to order personnel exchanges under Paragraph 2 of the above Article is a provision concerning the supervisory and directive authority of the competent minister, and does not confer specific personnel authority. Therefore, the personnel exchange order of the Minister of Agriculture and Fisheries based thereon does not, by itself, have the direct effect of changing the affiliation of the relevant employee; rather, the transfer to another cooperative is effected only by the cooperative chairman's transfer order issued pursuant thereto. Accordingly, where an employee of a land improvement cooperative who has received such a transfer order asserts that the order constitutes an unfair labor practice, the determination of whether an unfair labor practice has been established must be made with respect to the transfer order itself.
Therefore, although it is not appropriate for the court below to have stated in its reasoning that the personnel exchange order issued by the Governor of Gyeongsangbuk-do with respect to the Intervenor in this case was merely an internal decision-making procedure, the court below, on the premise that, in relation to the Intervenor who received the transfer order in this case, the person with authority to issue the order was the chairman of the Plaintiff Cooperative, rejected the Plaintiff's argument that the Plaintiff Cooperative had no authority to issue or revoke the transfer order and merely mechanically implemented the Governor's personnel exchange order, such that there was no room for an intent to commit an unfair labor practice to have intervened. This rejection was ultimately based on the aforementioned view, and the result of the determination is justified; therefore, this does not affect the outcome of this case, and it cannot be said that there was any misapprehension of law or insufficiency of reasoning affecting the judgment.
2. Reassignment or transfer of an employee falls, in principle, within the authority of the employer, and thus considerable discretion should be recognized within the scope necessary for business purposes; however, such reassignment or transfer is not permitted where there exist special circumstances such as a violation of Article 27, Paragraph 1 of the Labor Standards Act (근로기준법), abuse of rights, or where it constitutes an unfair labor practice as provided in Article 39 of the Trade Union Act (노동조합법) (see this Court's Decision 91Nu5204, dated January 21, 1992). Whether a transfer order constitutes an unfair labor practice must be determined by comprehensively examining the motive and purpose of the transfer order in question, the existence of business necessity or reasonableness for the transfer order, a comparative weighing against the disadvantages to the employee's livelihood resulting from the transfer, the timing of the transfer order, the relationship between the employer and the labor union, the process leading up to the transfer order and the procedures taken by the employer, and other circumstances, including the existence of an intent to commit an unfair labor practice as inferred from the external and objective circumstances at the time of the transfer order.
3. Now, in this case, if the circumstances surrounding the transfer order against the Intervenor at the time were as found by the court below, then in light of the various circumstances—including the fact that the transfer order against the Intervenor resulted in the Plaintiff Cooperative having to incur a not insignificant additional budgetary expenditure, while the Intervenor suffered the disadvantage of having to move to a place far from his place of residence and livelihood, and the fact that the drastic decrease in the number of union members within a mere four months after the said non-party assumed office as chairman appears to have stemmed from the said non-party's or the Plaintiff Cooperative's habitual aversion to labor union activities and their covert suppression of union members—the court below's determination that the transfer order in question was not a legitimate exercise of personnel authority based on managerial necessity, such as the effective performance of the cooperative's business, but rather a disadvantageous disposition taken as a retaliatory measure against the Intervenor for his refusal to comply with the Plaintiff Cooperative's inducement to withdraw from the union and for his continued union membership, is justified. Moreover, the mere fact that the transfer order issued by the chairman of the Plaintiff Cooperative was based on the personnel exchange order of the Minister of Agriculture and Fisheries or the Governor to whom such authority was delegated does not mean that the transfer order is thereby exempted from the requirement of necessity for the effective performance of the cooperative's business, nor does it mean that such necessity is to be automatically recognized as existing. Therefore, it cannot be said that the court below's determination involved any misapprehension of law, insufficiency or inconsistency of reasoning, or failure to exhaustively examine the evidence, 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 set forth in the Order, by the unanimous opinion of the Justices participating in the decision.
Justice Kim Seok-su (Presiding Justice), Lee Hoi-chang, Bae Man-woon (Justice in Charge)