[Plaintiff, Appellant]
[Defendant, Appellee] Chairman of the National Labor Relations Commission (중앙노동위원회위원장)
[Intervenor for the Defendant] Kia Industrial Co., Ltd., Attorney Shin Chang-dong, counsel for the intervenor
[Judgment Below]
Seoul High Court Decision 89Gu8073 rendered on November 22, 1990
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. Grounds of appeal Nos. 1 through 4 are considered together.
According to the reasoning of the judgment below, with respect to the Plaintiff's assertion that the disciplinary dismissal disposition taken against the Plaintiff by the Intervenor for the Defendant (hereinafter referred to as "the Intervenor") on January 13, 1989 constituted an unfair labor practice because it was a retaliatory measure against the Plaintiff's legitimate union activities, the court below found, based on the evidence presented, as follows:
Although an agreement on wage increases had been reached between the Intervenor and the labor union of the Intervenor's company on May 4, 1988, the Plaintiff, dissatisfied with this, together with about 40 other union members, held sit-in protests and public rallies three or four times during lunch hours, as stated in the judgment, demanding conditions such as "carry out the 29.2% basic wage increase" and "the pro-management union leadership must resign." Furthermore, from around 19:30 on August 9 of the same year to around 16:00 on August 10 of the same year, the Plaintiff, together with about 70 other employees, refused to work and staged a sit-in protest demanding conditions such as "the pro-management union executive leadership must resign," "withdraw the unfair disciplinary action," and "implement direct election of the union chairman." The court below found that these acts were not based on any resolution or specific instruction of the labor union, but were merely spontaneous activities of the Plaintiff as a union member, and that there was no material evidence to find that, by the nature of the acts, they could be regarded as union activities or that they had received the implicit authorization or approval of the labor union. Accordingly, the court below determined that the Plaintiff's above acts did not constitute labor union activities, and thus it was difficult to view the Plaintiff's above acts as legitimate acts or legitimate activities for the business of the labor union.
In addition, the court below found, based on the evidence presented, that around October 1988 the Intervenor discovered the Plaintiff's misrepresentation of educational background and career history as stated in the judgment, and that the Intervenor imposed the disciplinary disposition at issue in this case on the Plaintiff on the ground that this fell under Article 65, Item 1 of the Intervenor company's employment rules, which provides for disciplinary grounds for employees, namely, "a person who was employed by fraudulently misrepresenting his or her name, career history, or other important matters." The court below held that this disciplinary disposition was carried out in accordance with the Intervenor company's employment rules and constituted a legitimate dismissal.
Upon examination of the record, the above findings and determinations of the court below can be upheld, and there is no illegality therein due to a misapprehension of the facts in violation of the rules of evidence, nor any illegality due to a misapprehension of the law regarding unfair labor practices or the grounds for disciplinary dismissal prescribed in the Intervenor company's employment rules.
Furthermore, in a case such as this one, where the aforementioned sit-in protest and other such acts are not found to constitute legitimate acts or activities for the business of the labor union, and where the disciplinary dismissal of the Plaintiff is found to be justified even on the basis of the misrepresentation of educational background and career history alone, the conclusion that the disciplinary dismissal of the Plaintiff in this case does not constitute an unfair labor practice remains unaffected, regardless of whether the sit-in protest, which the Plaintiff argues was also treated as a ground for disciplinary action along with the misrepresentation of educational background and career history, actually constitutes a disciplinary ground. Moreover, the argument that treating the Plaintiff's aforementioned sit-in protest as an act disturbing workplace order under Article 65, Paragraph 2 of the Intervenor company's employment rules violates the principle of equality under the Constitution was not raised before the court below and is being raised for the first time at this appellate stage, and therefore cannot constitute a legitimate ground for appeal. All the arguments are 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, with the unanimous consent of the Justices involved.
Justice Choi Jae-ho (Presiding Justice), Yoon Kwan, Kim Ju-han, Kim Yong-jun