[Defendant] Defendant 1 and 5 others
[Appellant] Prosecutor
[Judgment Below] Suwon District Court Decision 98No895 delivered on September 16, 1998
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Suwon District Court.
[Reasoning]
The grounds of appeal are examined.
1. The Facts Charged
The facts charged in this case are as follows: After the Defendants completed the registration of the establishment of the labor union of Nonindicted Company (hereinafter "Nonindicted Company") around September 16, 1996, they demanded collective bargaining from the company around September 23 of the same year, held an introductory meeting around October 2 of the same year, and after only the second round of collective bargaining took place around October 24, filed a report of the occurrence of a labor dispute around October 29. From around September 25 to around November 10 of the same year, while driving car carriers, the Defendants attached banners reading "Congratulations on the Establishment of the Nonindicted Company Labor Union" and "Smash Tak Seung-gi" and the like to the vehicles, and refused to work and left their posts, among other acts. During this period, Defendant 1, Defendant 2, Defendant 3, Defendant 4, and Defendant 5 conspired together, and from around 08:20 to around 09:50 on November 11, 1996, at the rear gate of Ssangyong Motor Company (hereinafter "Ssangyong Motor") located at 150-3 Chilgoe-dong, Pyeongtaek-si, attached banners reading "Congratulations on the Establishment of the Nonindicted Company Labor Union" to the front of five car carriers owned by Nonindicted Company and attempted to enter the premises to transport new vehicles. When Ssangyong Motor restricted entry of vehicles bearing the banners, the Defendants abandoned the vehicles there, blocking the access road, thereby preventing 12 drivers, including employee ○○○ of Nonindicted Company, from driving their respective car carriers into Ssangyong Motor, thereby obstructing the business of transporting new vehicles of Nonindicted Company and Ssangyong Motor by force. Further, from around 10:30 to around 12:30 on the same day, at the Samjuk Car Wash in Samjuk-myeon, Anseong-gun, Gyeonggi-do, together with workers engaged in car washing duties, the Defendants set out chairs and the like, drank alcohol, sang songs, blew whistles, and engaged in a sit-in protest and strike, thereby obstructing the car-washing business of Nonindicted Company by force. In addition, Defendant 1, Defendant 2, Defendant 3, and Defendant 6 conspired together, and from around 13:30 to around 17:30 on the 15th of the same month, at the Samjuk Car Wash, left the new vehicles that the Defendants had driven in on the car carriers without unloading them, and together with workers engaged in car-washing duties and the like, collectively left work early and engaged in a strike, thereby obstructing the vehicle-unloading and car-washing business of Nonindicted Company by force. Finally, the Defendants conspired together, and from around 09:30 to around 15:00 on the 28th of the same month, at the Samjuk Car Wash, together with workers engaged in car-washing duties and the like, set out chairs and the like and engaged in a sit-in protest while beating gongs, drums, and small gongs (kkwaenggwari), and went on strike, thereby obstructing the car-washing business of Nonindicted Company by force.
2. The Judgment Below
The court below determined as follows. The issues of providing a union office and furnishings and recognizing full-time union officials, which the labor union of Nonindicted Company demanded from the company, constituted only a very small portion of the proposed collective agreement presented by the labor union side. Moreover, under the proviso of Article 39, Item 4 of the former Trade Union Act (Act repealed by the enforcement of the Trade Union and Labor Relations Adjustment Act, Act No. 5244 of December 31, 1996, which took effect on March 1, 1997) then in force, an employer's provision of a minimum-sized union office did not constitute an unfair labor practice. Furthermore, at the time, there was no prohibition under the rules of employment or collective agreement against allowing a certain range of union officers to devote themselves exclusively to union affairs. As for the issue of supplementing personnel such as transport staff, this is on the one hand a matter belonging to the employer's management rights, but on the other hand is also closely related to workers' working conditions, and does not fundamentally restrict the employer's management rights. Accordingly, these matters could be the subject of a collective agreement, and thus an industrial action aimed at such objectives should be regarded as intended to foster autonomous bargaining between labor and management for the improvement of working conditions. Furthermore, although it is recognized that the labor union side, in demanding the holding of collective bargaining for the conclusion of a collective agreement, sent to the company a copy of the union's rules including provisions that "the authority to conclude the collective agreement, etc. rests with the union members, and this becomes effective only upon a vote by a majority of the registered union members and the consent of a majority of those voting; and if the chairperson signs on his own authority, this shall be deemed to constitute grounds for a vote of no confidence, and a general meeting shall be convened immediately to conduct a vote of the union members on whether to pass a vote of no confidence," in light of the circumstances under which the rules were sent to the company—namely, that this was done in response to the company's request, prior to entering collective bargaining, that the union's rules be sent first—it is difficult to view the mere sending of the rules as clearly indicating that the labor union side would conclude the collective agreement only after obtaining a resolution of the general meeting of union members regarding approval or rejection of the proposed collective agreement. Rather, it appears that when the union members formed the labor union, they passed a resolution delegating matters concerning the conclusion of the collective agreement to the chairperson and the central executive committee. In light of the factual circumstances leading up to the industrial action in this case, the Defendants' industrial action does not appear to be defective in terms of subject, purpose, or procedure. Furthermore, from mid-September 1996, when the labor union of Nonindicted Company was established, until around November 10 of the same year, Ssangyong Motor exercised no control whatsoever over the operation of Nonindicted Company's car carriers bearing banners; it was only at the time and place stated in the first item of the facts charged in this case that Ssangyong Motor demanded the removal of the banners from the vehicles bearing them, and immediately after executives of Nonindicted Company personally removed the banners over a period of about 30 minutes, the Defendants and union members moved the vehicles to the parking lot beside the rear gate of Ssangyong Motor, thereby enabling other vehicles to enter and exit the rear gate of Ssangyong Motor. Also, while the Defendants and union members engaged in the industrial action at the car wash, they did not block the entrance to the workplace, restrict the access of others, obstruct the work of non-union members, use violence against the employer or non-union members, or coerce the suspension of operations. In light of these facts, it cannot be said that the Defendants' industrial action, in its means and methods, exceeded the bounds within which it could be reconciled with the employer's property rights, and its manner did not involve violence, destruction, or other acts of a highly antisocial nature, but remained within a legitimate scope. Accordingly, the court below concluded that the Defendants' acts constituted legitimate industrial action, and found the Defendants not guilty of the facts charged in this case.
3. Regarding the Argument of Violation of the Rules of Evidence
Upon comparing and examining the relevant evidence against the record, the court below's factual finding that the Defendants did not block the entrance to the workplace or restrict the access of others is justified, and there is no illegality of misapprehension of facts due to violation of the rules of evidence as argued. This argument is without merit.
4. Regarding the Argument of Misapprehension of Legal Principles
For a worker's industrial action to constitute a legitimate act under the Criminal Act (형법), it must satisfy all of the following conditions: first, the subject must be one capable of being a party to collective bargaining; second, the purpose must be to foster autonomous bargaining between labor and management for the improvement of working conditions; third, the action must be commenced when the employer has rejected collective bargaining regarding specific demands for the improvement of workers' working conditions, and, absent special circumstances, must have gone through procedures such as a vote of approval by the union members and the filing of a report of the occurrence of a labor dispute; and fourth, the means and methods must be reconcilable with the employer's property rights and must not amount to the exercise of violence (see Supreme Court Decision 91Do324 delivered on May 24, 1991; Supreme Court Decision 97Do588 delivered on January 20, 1998; Supreme Court Decision 97Do2543 delivered on February 27, 1998; Supreme Court Decision 99Da8377 delivered on June 25, 1999; Supreme Court Decision 99Do4838 delivered on March 10, 2000, and others).
According to the record, however, immediately after the labor union completed the registration of its establishment on September 16, 1996, it demanded that the company engage in collective bargaining, and while the company held an introductory meeting on October 2 of the same year, it proposed on October 4 that, since the representative for collective bargaining must have full authority, confirmation of the representative's full authority was necessary, and requested the union's rules while proposing a review period. In response, on October 7, the labor union side asserted that the question of the representative's authority was not a matter for the company to intervene in, and demanded that bargaining proceed. The company again replied on October 15 that collective bargaining would be possible only once preconditions were satisfied, including official notification of the union's demands and confirmation of the representative's full authority. In response, on the same day, the labor union side sent the company its union rules and a proposed collective agreement consisting of 144 articles. Article 38 of the rules provided, as found by the court below, that the authority to conclude the collective agreement rests with the union members, that it becomes effective only upon a vote by a majority of the registered union members and the consent of a majority of those voting, and that if the chairperson signs on his own authority, this shall be deemed to constitute grounds for a vote of no confidence, requiring the immediate convening of a general meeting to conduct a vote of the union members on whether to pass a vote of no confidence. Accordingly, on October 18, the company pointed out that, according to the union's rules, the authority of the union representative to conclude agreements was denied, meaning the representative lacked legitimate authority as a bargaining party, and requested confirmation of the legitimate authority of the bargaining representative. The parties held the second round of collective bargaining on October 24 but failed to reach agreement. Even thereafter, on November 12 of the same year, the company pointed out that there had been no response to its request for confirmation of whether the union representative possessed authority to conclude the collective agreement, and requested that collective bargaining be reconvened. Meanwhile, it can be seen that, regarding the labor union's report of the occurrence of a labor dispute filed on October 29 of the same year, the Gyeonggi Provincial Labor Relations Commission, on November 7 of the same year, instructed the labor union that the report of the occurrence of a labor dispute had been filed without sufficient bargaining having taken place.
The main text of Article 33, Paragraph 1 of the former Trade Union Act (Act repealed by the enforcement of the Trade Union and Labor Relations Adjustment Act, Act No. 5244 of December 31, 1996, which took effect on March 1, 1997) then in force provided that "the representative of a labor union or a person delegated by the labor union shall have the authority to bargain with the employer or an employers' association on behalf of the workers or union members regarding the conclusion of a collective agreement and other matters." Here, "authority to bargain" should be construed as including the authority to conclude a collective agreement in accordance with the results of the bargaining. Nevertheless, the rules of the labor union in this case contained a provision to the effect that a proposed collective agreement would become effective only upon obtaining the consent of the union members through resolution, and even though the union members, in forming the labor union, resolved to delegate matters concerning the conclusion of the collective agreement to the chairperson and the central executive committee, insofar as the labor union side did not notify the company of the fact that such separate delegation had been made, the company had reason to fear that, even if an agreement were reached on the proposed collective agreement as a result of mutual compromise and concession between labor and management, the union's general meeting might refuse to accept the proposed collective agreement, thereby nullifying the results of the collective bargaining. Accordingly, the company could not be expected to engage in bargaining in good faith with a bargaining representative whose final decision-making authority had not been confirmed. If the labor union side, despite being able to resolve the company's doubts regarding the authority to conclude the collective agreement, merely demanded collective bargaining without resolving such doubts, then it cannot be said that the union made sincere efforts toward collective bargaining. Therefore, even if collective bargaining conducted under such circumstances broke down, an industrial action undertaken on that basis cannot be regarded as a legitimate industrial action in terms of its purpose, timing, and procedure (see Supreme Court en banc Decision 91Nu12257 delivered on April 27, 1993; Supreme Court Decision 97Do588 delivered on January 20, 1998, and others).
Nevertheless, the court below overlooked this point and, without further examining whether the labor union made efforts to resolve the company's doubts regarding its authority to conclude the collective agreement, determined that the Defendants' acts constituted legitimate industrial action. This constitutes an illegality affecting the judgment due to incomplete deliberation or misapprehension of the legal principles concerning the legitimacy of industrial action. The argument pointing this out has merit.
5. Accordingly, the judgment below is reversed, and the case is remanded to the court below for further examination and adjudication. This judgment is rendered by the unanimous opinion of the participating Justices, as stated in the Order.
Presiding Justice Yoon Jae-sik
Justice Lee Don-hee
Justice Lee Im-su (Presiding Justice for Preparation of Opinion)
Justice Song Jin-hoon