[Plaintiff, Appellant] Plaintiff (Attorney Kim Seon-su, Counsel for the Plaintiff)
[Defendant, Appellee] Chairman of the National Labor Relations Commission (중앙노동위원회위원장)
[Defendant Assisting Intervenor] Defendant Assisting Intervenor Co., Ltd. (Attorneys Kim Chan-jin and 1 other, Counsel for the Defendant Assisting Intervenor)
[Judgment Below] Seoul High Court Judgment 1991. 5. 9., Case No. 90Gu11518
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds for appeal are examined as follows.
1. As to Grounds for Appeal Nos. 1, 2, and 4-(a) — the Distribution of Printed Materials
Whether an act constitutes a legitimate act for the business of a labor union as provided under Article 39, Subparagraph 1 of the Labor Union Act (노동조합법) must be determined in accordance with social norms, comprehensively considering, in the specific case, the attitudes of both labor and management, and the type and degree of the disadvantageous treatment to be imposed by the employer. Where the act of the employee that the employer cites as the ground for disadvantageous treatment is the distribution of printed handbills, the content of the handbills, the number of copies, the timing, target, and method of distribution, and the resulting impact on the enterprise or its business shall serve as the criteria for determining legitimacy.
The facts as established by the court below are as follows: Around December 24, 1987, the Plaintiff prepared printed material criticizing the attitude of Non-party 1, who was then the section chief of the Connector Room at the Anyang Factory of the Intervenor Company to which the Plaintiff belonged, toward his subordinate staff, which material infringed upon Non-party 1's personality and privacy and contained content lacking clear grounds, and had this material circulated among the staff of the department concerned for their signatures. Separately, Non-party 2, who was then the deputy head of the Education and Public Relations Department of the Anyang Branch of the labor union, independently prepared, without any instruction from the labor union, printed material urging employees to collectively take monthly leave to attend the trial of the detained union chairman, Non-party 3, and proposing that, should Non-party 3 remain in detention, the union conduct actions such as workshops and refusal of education/training. Although the Plaintiff was aware of these facts, he distributed approximately 700 copies of this printed material on two occasions, June 20 and the following day, June 21, 1989, without giving prior notice to the Intervenor Company of such distribution, and as a result, approximately 116 employees who sympathized with this left the workplace without authorization, thereby greatly impeding the Intervenor Company's normal operations. Given that the printed material prepared and circulated by the Plaintiff defamed the honor of company executives as described above, with part of its content being groundless, and that the printed material distributed by the Plaintiff contained content inciting collective use of monthly leave in connection with matters unrelated directly to the employment relationship between the Intervenor Company and the labor union or employees, and moreover was distributed without following the prior notification procedure prescribed by the Rules of Employment, resulting in a large number of employees sympathizing therewith and leaving the workplace without authorization, thereby impeding the normal operation of the Intervenor Company's business — the Plaintiff's act of distributing the handbills cannot be deemed a legitimate union activity. The judgment below, which reached the same conclusion, is justified, and the argument criticizing it cannot be accepted.
2. As to Ground for Appeal No. 3 and No. 4-(a) — Unauthorized Demonstration, Obstruction of Business, and Refusal of the Business Trip Order
Upon examination of the record, the factual findings and determination of the court below, which found that the Plaintiff obstructed the business of the Intervenor Company, are justly acceptable. Even taking into account the motive for the Plaintiff's conduct, the act of illegally demonstrating within the workplace without permission as found by the court below, and, in the course of attempting to enter the disciplinary committee room without authorization, obstructing the proceedings of the disciplinary committee, cannot be recognized as a legitimate labor union activity. The judgment below, having reached the same conclusion, is justified, and it cannot be said to contain an error of law as argued.
A business trip order falls within the employer's authority to issue business directives, and the employer must be granted discretion within a reasonable scope where such an order is deemed necessary for business purposes; unless there are special circumstances such that the order violates the labor contract or constitutes an abuse of rights, the employee is under a duty of good faith and a duty to provide labor in compliance with such an order.
According to the facts established by the court below, in order to handle a claim raised on August 9, 1989 by Honam Oil Refining Co., Ltd. (호남정유주식회사), a business partner of the Intervenor Company, at its Yeocheon Factory, concerning defective withstand voltage of power cables, the Intervenor Company issued a business trip order to the Plaintiff, who had previously visited the said factory from around the end of May to early June of the same year to provide after-sales service for power cables. However, the Plaintiff refused the business trip order, citing his displeasure at having been disciplined and his participation in a union officers' training retreat that had not been agreed upon in advance with the Intervenor Company. This act of refusing the business trip order cannot be regarded as a labor union activity; moreover, the business trip order issued by the Intervenor Company was necessitated by the need to promptly address the claim raised by the business partner, making it difficult to allow sufficient advance preparation time, and the criteria by which the Intervenor Company designated the Plaintiff as the person to be sent on the business trip are also recognized as reasonable. Therefore, the Plaintiff's refusal of the business trip order, based on personal displeasure at having received a ten-day suspension as disciplinary action and on a union event that had not been agreed upon in advance with the Intervenor Company, cannot be deemed justified. This ground for appeal is without merit.
3. As to Ground for Appeal No. 4-(b) — Abuse of Disciplinary Authority
As pointed out in the argument, it is true that where an employer imposes disadvantageous treatment such as dismissal or reassignment upon an employee, citing the employee's legitimate labor union activities as the ground therefor, or where the employer takes such disadvantageous treatment while making the employee's legitimate act for the business of the labor union the decisive reason therefor, even though other reasons are ostensibly cited, such treatment constitutes an unfair labor practice.
However, as examined above with respect to this case, since it cannot be recognized that the Intervenor Company made legitimate union activities the ground for the Plaintiff's dismissal, nor that the Intervenor Company in substance dismissed the Plaintiff on account of legitimate union activities, the Intervenor Company's disciplinary dismissal of the Plaintiff cannot constitute an unfair labor practice. Accordingly, the argument that this constituted an abuse of disciplinary discretion, while it may be a ground for disputing the validity of the disciplinary action itself, cannot have any bearing on whether the act constitutes an unfair labor practice (see this Court's Judgment 1990. 9. 14., Case No. 89Nu6679). This ground for appeal is without merit.
Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. The Justices involved unanimously agree, and it is so decided as stated in the Order.
Justice Park Man-ho (Presiding Justice), Park Woo-dong, Kim Sang-won, Yoon Young-chul