[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Keonyang Enterprise Co., Ltd. Transportation Labor Union
[Judgment Below] Seoul High Court Decision 90Na45832 rendered April 3, 1991
[Order]
The judgment below is reversed.
The case is remanded to the Seoul High Court.
[Reasoning]
1. Summary of the facts as determined by the court below.
A. On April 28, 1989, the Defendant Union held a delegates' assembly attended by 16 of its 18 delegates, including the Plaintiff, and with the unanimous consent of all delegates present resolved to amend Article 29 of its bylaws—which had previously provided that the union chairperson be elected at the delegates' assembly—to provide, among other things, that "the chairperson shall be elected by direct vote of all union members" and that "a candidate for chairperson must be recommended by 30 or more union members." Subsequently, on October 14, 1989, the Defendant Union held a delegates' assembly attended by all 13 remaining delegates (excluding 5 delegates who had resigned or left employment among the 18 delegates), including the Plaintiff, and, on the premise of amending the method of electing the chairperson to a direct election system, after an explanation of the proposed amendment to the direct-election provision and ensuing discussion, put to a vote a proposed amendment providing that candidacy for chairperson be limited to persons recommended by 30 or more union members who had at least one year of membership. A direct, secret, and unsigned ballot was conducted, and upon counting, all delegates present voted in favor, resulting in a resolution adopting the amendment as proposed.
B. In accordance with the Defendant Union's bylaws and election management regulations, the Defendant Union's Election Management Committee announced the chairperson election on February 6, 1990, closed candidate registration on February 8, and conducted the election by direct, secret, and unsigned ballot of the Defendant Union's members on February 20; however, as no candidate received a majority of the votes, a run-off vote was conducted on February 22, in which Nonparty 1 received a majority of the votes and was elected chairperson of the Defendant Union.
C. The Plaintiff joined Keonyang Enterprise Co., Ltd. (the "Nonparty Company"), the employer, on December 10, 1987, became a member of the Defendant Union, and worked there until he was dismissed by the Nonparty Company on October 22, 1989. On November 7, 1989, he filed an application for relief from unfair labor practice with the Seoul Regional Labor Relations Commission. Intending to run as a candidate in the Defendant Union's chairperson election, the Plaintiff, pursuant to the Defendant Union's election management regulations providing that a person wishing to stand as a candidate in the February 6, 1990 chairperson election must, within three days after the announcement of the election, register with the Election Management Committee by submitting the prescribed candidacy registration application and letters of recommendation, requested the Defendant Union's Election Management Committee to issue him the documents necessary for candidacy registration. However, Nonparty 2, the chairperson of the Defendant Union's Election Management Committee, having made an inquiry to the Ministry of Labor and having received a reply that the Plaintiff, having been dismissed by the Nonparty Company, could not be regarded as a member of the Defendant Union, refused to issue the Plaintiff the documents necessary for candidacy registration on the ground that the Plaintiff lacked the right to stand for election. (The Plaintiff was served with a remedial order from the Seoul Regional Labor Relations Commission on February 9, 1990, and although the Nonparty Company applied to the National Labor Relations Commission for reexamination, the application for reexamination was dismissed on May 25.)
2. Determination as to the first ground of appeal.
The court below's factual findings and determination regarding the point raised in the argument (namely, that at the delegates' assembly of the Defendant Union held before the chairperson election was conducted, a resolution was adopted, by direct, secret, and unsigned ballot with the unanimous approval of all delegates present, to amend the bylaws on the premise that the chairperson would be elected by direct vote) are justified and acceptable in light of the evidence set forth by the court below, and it cannot be said that there was any illegality in the process, such as erroneous assessment of evidence leading to a mistaken finding of fact, as argued. (However, although it appears that the date of the delegates' assembly at which the above resolution was adopted was, as the argument points out, October 10, rather than October 14, 1989 as found by the court below, since that delegates' assembly was in any event held before the Defendant Union's chairperson election was conducted and a resolution was adopted to amend the bylaws concerning the method of electing the chairperson, it is clear that even if the court below somewhat erred in finding the date of the assembly, this cannot constitute a ground affecting the judgment.)
The argument, in the end, amounts to nothing more than an attack on the court below's fact-finding, which falls within its exclusive authority, or a criticism of the court below's determination premised on facts inconsistent with those found by the court below, and thus cannot be accepted.
3. Determination as to the second ground of appeal.
If, as the court below lawfully found, the facts are such that all delegates on the register attended the Defendant Union's delegates' assembly and unanimously resolved to amend the bylaws on the premise of electing the Defendant Union's chairperson by direct vote, then even if there was a procedural defect, as argued, in that the Defendant Union held the delegates' assembly without having given prior notice that the bylaw amendment proposal would be an agenda item for the meeting, it cannot be said that the resolution of the delegates' assembly itself is thereby rendered void. The court below's determination to the same effect is therefore justified, and it cannot be said that the judgment below erred in its understanding of the legal principles under Article 27 of the Trade Union Act (노동조합법). This argument is also without merit.
4. Determination as to the third ground of appeal.
Even where a trade union restricts, by its bylaws, eligibility to become an officer to persons recommended by a certain minimum number of union members and to persons who have been union members for a certain period, if the number of union members required to make the recommendation is not so large, in light of the total number of union members, as to risk infringing upon the rights of a minority of members, and if the required period does not exceed a reasonable period found necessary for the person to become familiar with the circumstances of the employer and the union in order to perform the duties of a union officer, then such matters may be determined by the union's bylaws according to the union's autonomous judgment, and this cannot be regarded as a significant infringement of the equality of union members' right to be elected. Accordingly, it is proper to hold that such bylaws do not violate Article 22 of the Trade Union Act.
Accordingly, the court below's determination—consistent with the foregoing—that the amended bylaw provision restricting candidacy for the Defendant Union's chairperson to persons recommended by 30 or more union members (fewer than one-tenth of the total number of union members, 310) who have at least one year of membership does not violate Article 22 of the Trade Union Act, is justified, and it cannot be said that the judgment below erred in its understanding of the legal principles as argued. This argument is also without merit.
5. Determination as to the fourth ground of appeal.
A. The court below determined that the refusal by the chairperson of the Defendant Union's Election Management Committee to issue the Plaintiff the documents necessary for candidacy registration, in light of the reason for the refusal, was in substance tantamount to a refusal of the Plaintiff's candidacy registration. Nevertheless, the court below reasoned that the proviso of Article 3, Subparagraph 4 of the Trade Union Act is a provision intended to prevent an employer from obstructing the establishment or continued existence of a trade union, and that it was not clearly the case that the Plaintiff, having been dismissed and being in the process of disputing the effect of the dismissal, should be interpreted as retaining his status as a member of the Defendant Union; moreover, since the chairperson of the Defendant Union's Election Management Committee had made an inquiry to the Ministry of Labor, the competent authority, and refused to issue the candidacy registration documents based on the reply received that the Plaintiff could not be regarded as a member of the Defendant Union, the court below determined that, even if the result was to deny the Plaintiff's candidacy registration, the refusal to issue the documents could not be deemed unlawful. On this basis, the court below rejected the Plaintiff's argument that the Defendant Union's chairperson election was void because the Defendant Union had obstructed the Plaintiff's registration as a candidate for chairperson.
B. However, the proviso of Article 3, Subparagraph 4 of the Trade Union Act provides that "a person who is disputing the effect of a dismissal shall not be interpreted as not being a worker." The purport of this provision is not merely, as the court below held, to prevent an employer from obstructing the establishment or continued existence of a trade union by dismissing a worker without justifiable cause; rather, it is also intended to guarantee the status of a dismissed worker by treating the worker as continuing to retain his status as a worker and as a union member, notwithstanding the dismissal, where the worker, within a reasonable period from the time of dismissal, files an application for relief from unfair labor practice with the Labor Relations Commission or files a suit for confirmation of invalidity of dismissal with a court, thereby disputing the effect of the dismissal (see this Court's en banc Decision 89Do1579 rendered November 27, 1990). Accordingly, even though the Plaintiff was dismissed by the Nonparty Company, if, as found by the court below, the Plaintiff filed an application for relief from unfair labor practice with the Seoul Regional Labor Relations Commission within a reasonable period and was disputing the effect of the dismissal, then, in light of the purport of the above statutory provision, it cannot be said that the Plaintiff lost his status as a member of the Defendant Union; therefore, it cannot be said that the Plaintiff lacked the qualification to become chairperson of the Defendant Union on account of the Nonparty Company's dismissal action.
Furthermore, if the Plaintiff possessed the qualification to become chairperson of the Defendant Union, then even though, as found by the court below, the chairperson of the Defendant Union's Election Management Committee refused to issue the Plaintiff the candidacy registration documents based on the Ministry of Labor's reply that the Plaintiff could not be regarded as a member of the Defendant Union, it must be said—apart from the separate question of whether the chairperson of the Election Management Committee may thereby be relieved of liability in tort—that the Election Management Committee chairperson's refusal of the Plaintiff's chairperson candidacy registration violated the proviso of Article 3, Subparagraph 4 of the Trade Union Act, as well as Article 22 of the same Act, which provides for the equal rights and obligations of union members.
C. Nevertheless, the court below, for the reasons stated above alone, rejected the Plaintiff's argument that the Defendant Union's chairperson election, conducted after unlawfully depriving the Plaintiff of his right to be elected, was void. It must therefore be said that the judgment below erred in its understanding of the legal principles concerning the proviso of Article 3, Subparagraph 4 and Article 22 of the Trade Union Act, and such error is clearly one that has affected the judgment. The argument pointing this out is therefore meritorious.
6. Accordingly, the Justices unanimously agree to reverse the judgment below and remand the case to the court below for further hearing and determination, and render judgment as set forth in the Order.
Justice Yoon Kwan (Presiding Justice), Choi Jae-ho, Kim Ju-han, Kim Yong-jun