[Plaintiff, Appellee]
[Defendant, Appellant] Chairman of the National Labor Relations Commission
[Defendant Intervenor, Appellant] Daejin Transportation Co., Ltd., Attorneys Lee Jae-gi and 2 others, Counsel for the Defendant Intervenor
[Judgment Below]
Seoul High Court Decision 88Gu9710 rendered on November 23, 1989
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The Court examines together the grounds of appeal of the Defendant and the third ground of appeal of the Defendant Intervenor.
In determining the Plaintiff's assertion that the dismissal in this case constitutes an unfair labor practice, the court below found as follows: the Plaintiff, an automobile driver, joined the company of the Defendant Intervenor (hereinafter "the Intervenor") and, between May 15, 1987 and February 12, 1988, committed the following misconduct: refusal to drive on two occasions; one accident caused by reckless driving that resulted in the Intervenor being fined KRW 100,000; one unauthorized absence; one instance of spreading rumors; three contact accidents (one of which caused the Intervenor a loss of KRW 42,000 in repair costs); and one instance of failing to wear a hat and violating a traffic signal; for which the Plaintiff submitted seven letters of reprimand (self-criticism statements) and one written pledge. The Plaintiff also submitted a leave-of-absence request accompanied by a medical certificate citing headaches and other ailments, and was absent from work from December 14, 1987 to January 19, 1988. Since Article 33 of the Rules of Employment provided that an employee absent for 20 days or more must submit a request for leave of absence and obtain approval, the Intervenor, on January 20, 1988, instructed the Plaintiff to supplement and submit a request for leave of absence and to submit a letter of reprimand, but the Plaintiff refused to do so. Moreover, on January 21 of the same year, the Plaintiff got into a dispute over the same matter with Nonparty 1, the dispatch section chief, and inflicted on Nonparty 1 an injury requiring two weeks of treatment. On these grounds, the Defendant Intervenor dismissed the Plaintiff by way of disciplinary action.
However, the court below found that, among the above grounds for dismissal, the refusal to drive on May 15, 1987 arose because the Plaintiff had run as a candidate in the union delegate election on that day, and the Intervenor had ordered overtime work that was not usually required; that the refusal to drive on January 21, 1988, the assault on Nonparty 1, and the failure to submit the leave-of-absence request and letter of reprimand arose because the Plaintiff, not knowing of the provision in the Rules of Employment, had not submitted a request for leave of absence, and when Nonparty 1 and others, the dispatch section chief, demanded its submission, a dispute arose in which the Plaintiff himself was assaulted by Nonparty 1 and other company executives, making him unable to drive; that the allegation of spreading rumors was nothing more than the Plaintiff telling his colleagues in the dispatch office on a rainy day not to write letters of reprimand because doing so after an accident would lead to dismissal; and that, even with respect to the traffic accidents that caused loss to the Intervenor, there were other drivers of the Intervenor who had caused losses of several million won to the company through fatalities or contact accidents but were not dismissed. The court below further found that the Plaintiff, believing on May 15, 1987 that the union president and other executives were colluding with the company, ran as an opposition candidate for union delegate but lost the election; that after refusing overtime work from May 16 to May 20 of the same year and being suspended as a result, he filed a petition with the Ministry of Labor and received wages for that period; that although the Rules of Employment and labor-management consultation provided that drivers be given one bathing ticket per week and be paid allowances for reserve forces training periods, the Intervenor failed to properly comply with these provisions, and accordingly the Plaintiff, together with numerous union members, jointly signed and sealed petitions submitted to the Ministry of Labor under the name of Nonparty 2 on July 25, 1987 and under the name of Nonparty ○○○ on July 31 of the same year, demanding compliance; that when Nonparty 3, 4, and 5, union members who had been dismissed in the course of labor-management disputes occurring after May 1987, filed applications for relief from unfair labor practices with the Seoul Regional Labor Relations Commission, the Plaintiff appeared as a witness on December 11, 1987 and testified, thereby assisting in their reinstatement; and that, as a result of the above activities, the Plaintiff was beaten by the union's general affairs officer on August 18, 1987, and was repeatedly pressured to resign by executives of the Intervenor. Having found these facts, the court below held that although the Plaintiff's above acts were not carried out pursuant to a union resolution or an executive's instruction, they were acts aimed at improving the social and economic status of union members and were consistent with the intent of the union as a whole; that the Intervenor's dismissal of the Plaintiff was nothing other than disadvantageous treatment on grounds that were not serious, on account of the Plaintiff's legitimate union activities and his testimony before the Labor Relations Commission; and therefore that the dismissal in this case constitutes an unfair labor practice as provided in Article 39, Subparagraphs 1 and 5 of the Trade Union Act (노동조합법).
Whether the dismissal of a worker constitutes an unfair labor practice must be determined by whether the dismissal substantively falls under the grounds set forth in Article 39 of the Trade Union Act. Accordingly, where it is recognized that an employer, despite the ostensible grounds for dismissal, has in substance dismissed a worker on account of the worker's legitimate activities conducted for union business, such dismissal must be deemed an unfair labor practice (see this Court's Decisions 77Da220 rendered on August 23, 1977; 88Nu4508 rendered on May 23, 1989; 89Nu4659 rendered on October 24, 1989; and 89Nu1193 rendered on January 12, 1990). Whether the worker's legitimate activities for union business constituted the substantive ground for dismissal must be determined comprehensively by comparing and examining the grounds for dismissal asserted by the employer, the content of the worker's legitimate activities for union business, the timing of the disciplinary dismissal, the relationship between the company and the union, and other circumstances from which the existence of an intent to commit an unfair labor practice may be inferred.
However, the grounds for disciplinary dismissal in this case are not only matters that arose after the Plaintiff's activities for union business, but the Plaintiff's misconduct as found by the court below while working as a driver, and his submission of seven letters of reprimand and one written pledge therefor (according to Defendant's Exhibit No. 4-14, the Plaintiff's second refusal to drive occurred on February 12, 1988, which had nothing to do with the assault of January 21, 1988 that occurred earlier; the court below erred in finding that the Plaintiff refused to drive because he was unable to work due to the aforementioned assault), demonstrate that the Plaintiff's work attitude was unfaithful. Moreover, the Plaintiff's refusal to comply with the instruction to submit a request for leave of absence, and his infliction of an injury requiring two weeks of treatment on his superior, Im Wan-ho, also constitute acts destroying the order of work at the company. These acts not only fall under the grounds for dismissal set forth in the Rules of Employment, but are in substance recognized as grounds serious enough to make it impossible to continue the employment relationship between the worker and the employer, and thus constitute sufficient grounds for dismissal. On the other hand, there is no material from which it can be found that the Intervenor had any specific reason to single out the Plaintiff alone for dismissal on account of his having run, unsuccessfully, as a candidate for union delegate for the benefit of workers' rights and interests, his act of signing a petition together with colleagues submitted to the Ministry of Labor, or his act of appearing and testifying before the Labor Relations Commission (the fact that the Plaintiff, after refusing overtime work from May 16 to May 20, 1987 and being suspended, filed a petition with the Ministry of Labor and received wages for that period through a settlement, is difficult to regard as a union activity, being rather the Plaintiff's personal activity). Comprehensively examining the various circumstances set forth above, the disciplinary grounds ostensibly asserted for the dismissal in this case are nothing more than a pretext, and it cannot be said that the Plaintiff's legitimate activities for union business were in substance the ground for the dismissal.
The court below committed an error of law by misapprehending the legal principles concerning unfair labor practices, and the argument pointing out this error is well-founded.
The Court next examines the first ground of appeal of the Defendant Intervenor.
In a lawsuit seeking revocation of an order or decision of the National Labor Relations Commission concerning an application for relief from unfair labor practices, whether such order or decision is lawful must be determined as of the time it was made; however, this does not mean that only the grounds already asserted before the Labor Relations Commission may be considered. Accordingly, grounds not asserted before the Labor Relations Commission may also be asserted in the administrative litigation, so long as such grounds did not arise after the order or decision of the National Labor Relations Commission. This argument is without merit.
The Court next examines the second ground of appeal of the Defendant Intervenor.
Where an individual union member's voluntary act may, by its nature, be regarded as a union activity, or may be deemed to have received the implicit authorization or approval of the union, such act must be regarded as a legitimate activity for union business (see this Court's Decision 88Nu1950 rendered on April 25, 1989). The Plaintiff's act of filing a petition with the Ministry of Labor after being suspended from the day after May 15, 1987 until May 20 on the ground of his refusal to drive, and receiving wages for that period through a settlement, is the Plaintiff's personal act and is difficult to regard as an act for union business. However, the Plaintiff's act of running as a candidate for union delegate on May 15, 1987 clearly constitutes a union act, and his act of filing a petition with the Ministry of Labor on July 25, 1987 regarding the non-provision of bathing tickets, and his act of filing a petition with the Ministry of Labor on July 31 of the same year regarding the payment of allowances for reserve forces training periods, must be regarded as acts aimed at maintaining and improving working conditions and otherwise promoting the economic status of workers, which is the purpose of the union, and thus as acts that received the implicit approval or authorization of the union.
This argument is without merit.
Therefore, accepting the grounds of appeal of the Defendant and the third ground of appeal of the Defendant Intervenor, the judgment below is reversed, and the case is remanded to the Seoul High Court. This Decision is rendered by the unanimous opinion of the participating Justices as stated in the Order.
Justice Park Woo-dong (Presiding Justice), Lee Jae-sung, Yoon Young-chul, Kim Yong-jun