[Plaintiff, Appellee] Daesun Shipbuilding Co., Ltd. (대선조선주식회사), Legal Counsel: Attorney Yoon Seung-young
[Defendant, Appellant] Chairman of the National Labor Relations Commission (중앙노동위원회위원장)
[Intervenor for the Defendant]
[Judgment Below] Seoul High Court Decision 90Gu9454 dated April 11, 1991
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning] The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the court below found as follows:
A. The court below premised that on December 26, 1989, the Plaintiff disciplinarily dismissed the Intervenor for the Defendant (hereinafter “the Intervenor”); that the Busan Metropolitan City Regional Labor Relations Commission determined that this dismissal constituted an unfair labor practice; and that the Defendant rendered a reexamination determination dismissing the Plaintiff’s application for reexamination.
B. The court below further found the following facts: the Intervenor joined the Plaintiff company on August 10, 1987, and while working there was elected as a delegate and executive committee member of the Plaintiff company’s labor union; the labor union of the Plaintiff company (hereinafter “the Union”) announced that the Union’s chairman election would be held on December 29, 1989; the Union’s bylaws provided that a candidate for chairman must obtain the recommendation of at least 150 union members, and that duplicate recommendations would be treated as invalid; the Intervenor, together with non-party 1, non-party 2, and non-party 3, submitted candidate registration documents, including union members’ letters of recommendation, to the Union’s election management committee shortly before the registration deadline on December 14, 1989; at that time, the Union had 574 members, and when the issue of duplicate recommendations arose, non-party 1, who was then the Union chairman, considering that if the registrations of all four candidates who had completed candidate registration were invalidated and a re-election had to be held, this would damage the Union’s reputation and cause inconvenience, withdrew his candidacy, received back his registration documents, destroyed them, and resigned; subsequently, non-party 2 and the Intervenor voluntarily withdrew in the same manner, leaving only non-party 3 as a candidate; on December 19, 1989, at approximately 07:35, non-party 3 notified the Plaintiff that he would distribute leaflets, and on the morning of the same day distributed leaflets to the Plaintiff company’s employees asking for their support; the Intervenor, misunderstanding that the content of these leaflets implied that his and the others’ reasons for withdrawing were in fact to support non-party 3, demanded that non-party 1 join him in clarifying this, but when non-party 1 refused, the Intervenor, without obtaining the Plaintiff’s approval, during lunchtime on December 21, 1989, personally distributed about 300 sheets of leaflets that he had prepared to the Plaintiff company’s employees at the main office, and had non-party 4 distribute them at the second factory; although the main content of the leaflets was an explanation of the circumstances of the Intervenor’s withdrawal and an apology therefor, the leaflets described the Intervenor as someone who had “fallen tragically and bled,” and included expressions such as “they may take my life, but they cannot take my will, convictions, or courage,” and “I did not voluntarily give up my candidacy,” which also conveyed the meaning that the Intervenor’s withdrawal was due to interference or obstruction by another person; when the Plaintiff demanded that the Intervenor submit a written statement of the circumstances, the Intervenor submitted a statement apologizing for the distribution and for the violation of the collective agreement; however, the Plaintiff determined that the Intervenor’s act of distributing the leaflets violated Article 14 of the Plaintiff company’s collective agreement, which provides that “when the Union intends to post or attach and distribute printed materials on the company premises, it must obtain the company’s approval one day in advance,” and that it fell under Article 94, Paragraph 1, Item 4 of the Rules of Employment, which sets forth grounds for disciplinary dismissal as “acts such as unauthorized distribution or posting of documents, publications, etc. within the company, incitement of demonstrations or assemblies, spreading of false rumors, etc.”; accordingly, notwithstanding the Intervenor’s repentance, the Plaintiff disciplinarily dismissed the Intervenor; the Intervenor filed a petition for review, but the Plaintiff dismissed it; in contrast, with respect to non-party 3’s act of distributing leaflets, the Plaintiff regarded it as part of labor union activities and did not take any disciplinary action; the proviso to Article 94, Paragraph 1 of the Plaintiff company’s Rules of Employment provides that even where grounds for disciplinary dismissal exist, disciplinary measures other than dismissal, such as recommended resignation, demotion, or suspension, may be imposed depending on the motive, circumstances, and other particulars of the offense.
C. The court below then determined as follows: the leaflets distributed by the Intervenor mainly concerned the circumstances of his withdrawal from candidacy for Union chairman and an apology therefor, matters unrelated to Union business, and moreover contained false content to the effect that his withdrawal was not voluntary but was due to another person’s interference or obstruction; therefore, it is difficult to view the Intervenor’s act of distributing the leaflets as “an act for the business of the labor union,” and even if it could be so viewed, it cannot be regarded as “legitimate.” Nevertheless, the court below found that there were grounds for imposing a disciplinary measure lighter than dismissal, in that the Intervenor distributed the leaflets, whose main purpose was to explain the circumstances of his withdrawal and to apologize, using his lunch break, based on his misunderstanding of the content of the leaflets distributed by non-party 3; that he showed repentance both immediately after the distribution and during the disciplinary proceedings; and that non-party 3 received no disciplinary action whatsoever. However, the court below determined that, apart from the separate question of whether the dismissal was invalid on the ground that the degree of disciplinary action exceeded the bounds of discretion, the dismissal did not, for these reasons, constitute an unfair labor practice, and accordingly vacated the Defendant’s aforementioned reexamination determination.
2. However, upon examining the content of the leaflet in question (Defendant’s Exhibit No. 5), although its meaning is not entirely clear and it uses exaggerated expressions, its main content consists of an explanation and apology concerning the circumstances of the Intervenor’s withdrawal from candidacy and the damaging of the letters of recommendation given by union members, and it does not appear to contain content indicating that his withdrawal was due to interference or obstruction by the Plaintiff, the employer.
3. “Legitimate acts for the business of a labor union” under Article 39, Item 1 of the Trade Union Act (노동조합법) generally refers to legitimate labor union activities; however, even where an act is not itself an organizational activity of the labor union carried out pursuant to a union resolution or specific union instruction, it should be regarded as an act for the business of the labor union where, by its nature, it may be viewed as union activity, or where it may be viewed as having received the implicit authorization or approval of the labor union (see this Court’s Decisions 88Nu1950 dated April 25, 1989; and 89Nu8217 dated August 10, 1990).
Accordingly, an employee’s act of running as a candidate for Union chairman clearly constitutes a legitimate act for the business of the labor union (see this Court’s Decision 89Nu8217 dated August 10, 1990). Where, among multiple candidates for Union chairman, only some withdraw and more than one candidate remains, and one of the remaining candidates distorts the reason for a withdrawing candidate’s withdrawal and uses it for his own election campaign, it is reasonable to interpret that the withdrawing candidate’s act of informing union members of the true reason for his withdrawal is also included within acts for the business of the Union; nor should this be viewed differently merely because only one candidate remains and a yes/no confidence vote is to be held. Upon examining the record, Articles 14 and 15 of the Union’s bylaws (Plaintiff’s Exhibit No. 14) provide that the election of the Union chairman is confirmed by attendance of a majority of the total membership and approval of a majority of those in attendance, and that where there is a single candidate, the matter is decided by a yes/no confidence vote.
Viewed in this light, the Intervenor’s act of preparing and distributing the leaflets in the aforesaid manner, in order to inform union members that his withdrawal was not intended to support non-party Ji Gwang-hyeok, who remained as the sole candidate, may be regarded as an act for the business of the labor union, in that, as an executive committee member and delegate of the Union and as a person who had run as a candidate for chairman, the Intervenor was expressing his views on matters related to the Union chairman election and clarifying union members’ misunderstandings arising from the withdrawal of chairman candidates, so that the internal decision-making process of the Union with respect to the chairman election could proceed properly; it is difficult to characterize this merely as purely personal activity outside the scope of labor union activities.
4. Moreover, even where a system requiring prior approval for the distribution of leaflets has been adopted, this cannot be used to prohibit even legitimate acts for the business of a labor union; therefore, whether an act of distribution is legitimate should not be determined solely on the basis of whether approval was obtained, but should be judged by considering all relevant circumstances, including the content of the leaflets and the manner of distribution. Distribution during a daytime rest period, as opposed to working hours, cannot be said to lose its legitimacy merely because approval was not obtained, unless it adversely affects other employees’ work, interferes with the free use of the rest period, or specifically disrupts workplace order (see this Court’s Decision 87Nu147 dated October 11, 1988).
Therefore, in this case, the Intervenor’s act of merely handing leaflets to other union members during the lunch break, which is a rest period, without using the Plaintiff company’s facilities, cannot be deemed non-legitimate solely on the ground that it violated the provision requiring the Plaintiff’s approval. Furthermore, even if the content of the leaflets distributed by the Intervenor in this case contains exaggerated expressions, includes portions of personal self-justification, and partially contains content that differs from the facts, if the overall content is as described above, it should not be held that this does not constitute a legitimate act for the business of the labor union.
5. Accordingly, the judgment below is erroneous in that it misapprehended the legal principles concerning unfair labor practices, and the grounds of appeal are well-founded to this extent.
Therefore, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Kim Seok-su (Presiding Justice), Lee Jae-seong, Bae Man-woon