[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Chairperson of the National Labor Relations Commission (중앙노동위원회)
[Intervenor for Defendant] Korean Hospital Association (사단법인 대한병원협회), Attorneys Park Seung-seo and 1 other, Counsel
[Judgment Below] Seoul High Court Decision 90Gu13880 rendered on August 23, 1991
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
(1) According to the reasoning of the judgment below, the court below held as follows. The Plaintiff prepared and distributed to members of the Intervenor Association (hereinafter referred to as "the Intervenor Association") certain leaflets dated October 25, 1988 and August 12, 1989, the contents of which are as set forth in the judgment below, and on August 19, 1989, posted on the wall of the Intervenor Association's building a large-character poster (대자보) as set forth in the judgment below, together with the leaflet distributed on August 12, 1989. The court below found that, since the contents of these leaflets and the poster mainly contained personal attacks damaging the reputation of Non-party 1 and Non-party 2, Vice-Presidents of the Intervenor Association, Non-party 3, Secretary-General, and Non-party 4, Head of the Education and Research Department, as well as matters concerning their private lives, such acts could not be regarded as legitimate activities for the business of the labor union. Furthermore, since such acts constituted grounds for disciplinary action under the Intervenor Association's personnel regulations for damaging the dignity of an employee and disturbing service discipline, the disciplinary dismissal imposed by the Intervenor Association on these grounds was legitimate and could not be considered an unfair labor practice. Moreover, there was no evidence that the disciplinary action in this case was taken out of aversion to the Plaintiff's series of legitimate and active labor union activities. Therefore, apart from the separate question of whether the violation of the Intervenor Association's disciplinary procedures or the unreasonableness of the severity of the disciplinary measure could constitute grounds for invalidating the dismissal, such circumstances could not be regarded as showing that the Intervenor Association was merely asserting these formal grounds for dismissal in retaliation for the Plaintiff's prior series of active labor union activities. On this basis, the court below rejected the Plaintiff's claim.
Upon examination of the record, the above findings and judgment of the court below are justified and acceptable, and there is no violation of the rules of evidence, insufficient deliberation, or misapprehension of legal principles as argued in the grounds of appeal.
(2) Where an employer, in dismissing an employee, is found to have made the employee's legitimate activities for the business of the labor union the substantive reason for the dismissal while ostensibly citing other grounds for dismissal, such dismissal must be regarded as an unfair labor practice under Article 39, Item 1 of the Labor Union Act (노동조합법). Whether the employee's legitimate activities for the business of the labor union constituted the substantive reason for the dismissal must be comprehensively determined by comparing and examining the grounds for dismissal asserted by the employer, the content of the employee's legitimate activities for the business of the labor union, the timing of the disciplinary dismissal, the relationship between the company and the labor union, whether there was any disparity in sanctions imposed on union members as compared to non-union members in similar cases, and other circumstances from which the existence of an intent to commit an unfair labor practice may be inferred. Therefore, as argued in the grounds of appeal, circumstances such as the unreasonableness of the severity of the disciplinary measure or the violation of procedures prescribed in the collective bargaining agreement may serve as one piece of material for determining the company's intent to commit an unfair labor practice (see this Court's Decisions 87Nu980 rendered on March 14, 1989; 89Nu1193 rendered on January 12, 1990; 89Nu8217 rendered on August 10, 1990; 88Nu7729 rendered on October 23, 1990; 90Nu6132 rendered on February 20, 1991; and 90Nu7685 rendered on April 23, 1991, among others).
However, in this case, where there is no other material showing that the dismissal was made by asserting the grounds for disciplinary action in this case in retaliation for aversion to the Plaintiff's series of labor union activities, the disciplinary dismissal in this case cannot be recognized as an unfair labor practice merely on the ground that its procedure was unlawful or that the severity of the disciplinary measure exceeded the bounds of discretion.
The fact that the court below, in the above sense, did not render a judgment on the illegality of the procedure of the disciplinary dismissal in this case or the unreasonableness of the severity of the disciplinary measure does not constitute a misapprehension of legal principles as argued in the grounds of appeal. This ground of appeal is 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 stated in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Park Woo-dong
Justice Kim Sang-won
Justice Yoon Young-cheol
Justice Park Man-ho