[Plaintiff, Appellee] Plaintiff's litigation representative, Attorney Park In-je
[Defendant, Appellant] Chairman of the National Labor Relations Commission
[Intervenor Assisting the Defendant, Appellant] Jikjangin Co., Ltd., litigation representative, Attorney Oh Seong-hwan
[Judgment Below] Seoul High Court Decision 89Gu1355, rendered April 26, 1990
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant and the Intervenor Assisting the Defendant.
[Reasoning]
1. We examine the first ground of appeal of the Defendant's litigation representative.
According to the record, in this action the Plaintiff asserts that the disciplinary dismissal against the Plaintiff constitutes an unfair labor practice, and seeks revocation of the Defendant's reexamination ruling, which held the opposite view. Therefore, there is no illegality of omission of judgment as argued in the grounds of appeal in the court below's measure of accepting the Plaintiff's assertion and ordering revocation of the reexamination ruling. This ground of appeal is without merit.
2. We examine together the grounds of appeal of the Intervenor Assisting the Defendant himself and his litigation representative, and the second ground of appeal of the Defendant's litigation representative.
(1) Upon examining, in light of the record, the evidence relied upon by the court below, the court below's factual findings regarding the Plaintiff's employment and the circumstances of the establishment of the labor union, the occurrence and progress of the labor dispute and negotiations, and the content of measures taken after the dispute, are acceptable, and there is no illegality therein, such as a violation of the rules of evidence or insufficient deliberation resulting in erroneous factual findings, as argued in the grounds of appeal. Therefore, the ground of appeal disputing this point is without merit.
(2) Even where the employer's side refuses or delays the workers' demand to conclude a collective agreement without justifiable grounds, the fact that the workers chose the method of a labor dispute instead of filing a petition for remedy under Article 40 of the Trade Union Act (노동조합법) cannot be deemed a violation of the Trade Union Act. Upon examination in light of the record, the court below's judgment recognizing the legitimacy of the purpose of the industrial action in this case is acceptable, and therefore the ground of appeal on this point is also without merit.
(3) Legitimate industrial action is exempt from civil and criminal liability, and any disadvantageous disposition imposed by the employer on the ground of such legitimate industrial action constitutes an unfair labor practice subject to a remedial order. In order for industrial action to be deemed legitimate, first, the industrial action must be aimed at maintaining or improving working conditions, etc., in connection with collective bargaining, and its purpose must be legitimate; second, the timing and procedure of the industrial action must be legitimate in accordance with the provisions of statutes; and third, the methods and manner of the industrial action must fall within a legitimate scope, not accompanied by violence or destructive acts or other conduct of a highly antisocial nature.
Now, with respect to the timing and procedure of industrial action, Article 14 of the Labor Dispute Adjustment Act (노동쟁의조정법) establishes a cooling-off period during which industrial action may not be undertaken until a certain period has elapsed, and Article 16 of the same Act requires prior notification, i.e., that when a labor dispute arises, either party concerned must report it to the administrative agency and the Labor Relations Commission and notify the other party thereof. Articles 47 and 48 of the same Act provide penal provisions for violations of each of the above provisions. However, the purport of the provisions concerning the cooling-off period and prior notification is to provide an opportunity for prior mediation of the dispute so as to avoid the occurrence of the dispute, and also to provide advance notice of the occurrence of the dispute so as to give an opportunity for measures to prevent damage; it is not intended to actively prohibit industrial action itself. Therefore, the mere fact that a violation of the above provisions becomes subject to the application of penal provisions does not, by itself, mean that the legitimacy of the industrial action is thereby lost; rather, the legitimacy or otherwise must be determined by examining the specific circumstances, such as whether the violation results in an unreasonable outcome, such as causing unexpected confusion or damage to the stability of the public's livelihood or to the employer's business operations.
According to the reasoning of the judgment below, the court below, taking into account all the circumstances, including the background leading to the Plaintiff's industrial action in this case, the method by which the industrial action was decided upon, its purpose, and its means, held that the industrial action in question could not be deemed to lack legitimacy merely on the ground that the Plaintiff did not go through the notification of the occurrence of the dispute or the cooling-off period prescribed by the Labor Dispute Adjustment Act, and that it was reasonable to view the dismissal of the Plaintiff on the ground of the said industrial action as having been carried out with the intent to obstruct the Plaintiff's labor union activities, and thus determined that this constituted an unfair labor practice under Article 39, Subparagraphs 1 and 5 of the Trade Union Act. Although the court below's statement of reasons in this regard leaves something to be desired, the court below examined the specific circumstances as set forth above, such as whether the employer's business operations suffered unexpected confusion and damage, and determined that the legitimacy of the industrial action in this case should not be denied merely because it did not go through prior notification or the cooling-off period. Furthermore, it appears that the court below determined that the term "strikes, slowdowns, and other industrial actions prohibited under national statutes and ordinances" as referred to in Article 8, Paragraph 8 of the Rules of Employment, cited by the Intervenor Assisting the Defendant as grounds for disciplinary dismissal, refers to industrial action lacking legitimacy as set forth above, and that the Plaintiff's industrial action does not fall under grounds for disciplinary action, and thereby determined that the Defendant's disciplinary dismissal disposition constituted an unfair labor practice. Upon examination of the record, this judgment of the court below is deemed to be justifiably acceptable.
Meanwhile, industrial actions such as the holding of an extraordinary general meeting and a hunger strike sit-in, as argued in the grounds of appeal, constitute partial occupation of the workplace rather than complete and exclusive occupation, and cannot be regarded as accompanied by violence or destructive acts or as conduct of a highly antisocial nature; thus, it is difficult to conclude that the methods and manner of the dispute lacked legitimacy in this respect either, and therefore the court below's judgment is justified on this point as well. (In addition, the grounds of appeal raise the issue of a violation of Article 12 of the Labor Dispute Adjustment Act; however, according to the facts established by the court below and the record, it is recognized that the industrial action was resolved upon at an extraordinary general meeting of union members and that the industrial action was carried out accordingly pursuant to that resolution.)
Ultimately, the argument that the judgment below contains illegalities such as misapprehension of the law, omission of judgment, insufficient deliberation, and inadequate reasoning is without merit in its entirety.
3. 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 Justices participating in the adjudication.
Justice Bae Man-un (Presiding Justice), Lee Hoi-chang, Lee Jae-seong, Kim Seok-su