Section 3: Collective Industrial Relations
Chapter 2: Plural Labor Union
4. Determination of Negotiation Representative Labor Union by Majority Labor Union
4.2 Whether Including or not Dismissed Employees in the Count of Union Members
| Seoul High Court Decision on April 3, 2015, Case 2014nu42959 | |||||
| * Plaintiff, Respondent: National Metal Workers' Union
* Defendant, Appellant: Chairperson of the National Labor Relations Commission * Defendant's Auxiliary Intervenor: Company A 1. Facts a. The plaintiff was designated as the bargaining representative labor union at the intervenor's workplace on October 4, 2011. However, the plaintiff failed to conclude a collective agreement within one year. The nonparty union requested collective bargaining from the intervenor on October 11, 2012, under Article 14-10(3) of the Enforcement Decree of the Labor Union Act. The intervenor announced the nonparty union's bargaining request on the same day. b. The plaintiff requested bargaining from the intervenor on October 18, 2012. The intervenor confirmed both the plaintiff and the nonparty union as labor unions requesting bargaining and announced from October 20, 2012, to October 25, 2012, that the plaintiff had 91 members and the nonparty union had 80 members. Since the plaintiff and the nonparty union could not agree on the bargaining representative labor union, the plaintiff notified the intervenor on November 8, 2012, that it held a majority of the total union membership. c. From November 8, 2012, to November 13, 2012, the intervenor announced that the total number of confirmed union members was 171, with 91 members belonging to the plaintiff, thereby recognizing the plaintiff as the majority labor union. The nonparty union filed an objection with the Busan Regional Labor Relations Commission on November 12, 2012. The Busan Regional Labor Relations Commission decided that "among the 91 members listed in the plaintiff's submitted membership list, 48 members, including A, cannot be considered union members as of the confirmation announcement date of October 19,2012, because their unfair labor practice remedy application was dismissed by the National Labor Relations Commission on July 19, 2012. Thus, the plaintiff's union membership should be counted as 43 members, excluding these 48, making the nonparty union with 80 members the majority labor union." The decision stated, "The intervenor's announcement of the plaintiff as the bargaining representative labor union is invalid. The nonparty union is designated as the bargaining representative labor union." d. The plaintiff applied for reexamination to the National Labor Relations Commission on December 12, 2012. On December 24, 2012, the National Labor Relations Commission dismissed the reexamination request, adding to the initial decision that "under Article 29-2 of the Labor Union Act, the unit for determining the bargaining representative labor union is one business or workplace. When determining the bargaining representative labor union, the union members participating in the unified bargaining procedure should be limited to those employed within the bargaining unit. Therefore, even if the 48 members, including A, belong to the industrial union (the plaintiff), they are not employed within the bargaining unit and should be excluded from the union membership count for determining the bargaining representative labor union." e. In court, the defendant and the intervenor argued, "Dismissed employees are not considered employees under the Labor Standards Act or the Labor Union Act. Since the National Labor Relations Commission ruled that the layoff of employees like C was not an unfair labor practice, these employees cannot be treated as union members after the reexamination decision and should not be included in the union membership count for determining the bargaining representative labor union." f. Meanwhile, on November 7, 2011, the intervenor company dismissed 52 employees, including A, B, and C, for managerial reasons. 2. Court Judgment a. The controversial issue in this Case is whether it is necessary to determine if the layoff in question was justified under the interpretation of the proviso of Article 2(4)(d) of the Labor Union Act, given that the National Labor Relations Commission (NLRC) ruled in this reexamination decision that the layoff of employees such as C did not constitute an unfair labor practice. Additionally, if the layoff was deemed unfair, whether those employees should have been included in the union membership count for determining the bargaining representative labor union. Considering the wording, history, and legislative intent of the Labor Union Act, along with the facts and evidence presented in the first instance and the overall context of the arguments, it is evident that the NLRC should have included employees such as C in the union membership count for determining the bargaining representative labor union, as their layoffs were unlawful and invalid. The failure to do so renders the reexamination decision in this Case unlawful. b. Article 29-2(3) of the Labor Union Act stipulates that if the bargaining representative labor union is not determined within the period specified in paragraph 2 and the employer's consent under the proviso of paragraph 1 is not obtained, the labor union composed of a majority of all union members participating in the unified bargaining procedure (including Case s where two or more labor unions, through delegation or coalition, form a majority of all union members participating in the unified bargaining procedure) becomes the bargaining representative labor union. Article 29-2(6) states that if there are objections regarding the bargaining request or union membership count in determining the bargaining representative labor union under the provisions of paragraphs 1 to 4, the Labor Relations Commission can decide on such objections following a union's application as prescribed by Presidential Decree. Considering the wording and legislative intent of these provisions, the Labor Relations Commission is, in principle, obligated to substantively determine and decide the number of union members employed at the workplace when there is an objection regarding the number of union members. Therefore, if there are dismissed employees, the Commission must assess whether the dismissals were justified and decide if these employees should be included in the union membership count. c. In cases falling under Article 2(4)(d) of the Labor Union Act, the employee status can be recognized without assessing the validity of the dismissal. Interpreting Article 2(4)(d) to recognize employee status only in certain specified Case s, as claimed by the defendant and the intervenor, would result in an unfair scenario where employees do not retain their status even after a judgment confirming the unfairness of the dismissal is finalized. d. In this case, although there was an urgent managerial needs for the layoff of employees such as C at the time, the intervenor did not make sufficient efforts to avoid the layoff, did not establish reasonable and fair criteria for the layoff, and did not satisfy the procedural requirements demanded by Article 24(3) of the Labor Standards Act. Therefore, the layoff of these employees was not justified. |
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| Download : 서울고법 2014누42959.pdf | |||||
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