1975.04.25

1968 (O) 499

Minshu Vol. 29, No. 4, at 456

Judgment upon the case concerning the validity of dismissal from employment under a union shop agreement in the case where dismissal from membership is invalid

Ascertainment of the existence of an employment relationship

Judgment of the Second Petty Bench, quashed and remanded

Tokyo High Court, Judgment of February 23, 1968

Concerning a worker who was dismissed from membership of a labor union, dismissal from employment executed by the employer as discharge of his contractual obligation to a labor union under the union shop agreement is hereby ruled invalid, unless otherwise justified for specific reasons.

Chapter 2 of the Labor Union Law
Chapter 3 of the Labor Union Law
Article 627 of the Civil Code
Unless the term of employment is fixed by the parities, either party may at any time give notice to the other party to terminate the contract of employment; in such a case the contract of employment shall come to an end upon the expiration of two weeks after such notice is given.
If remuneration is fixed on a period-by-period basis, notice of termination may be given for the ensuing periods; however, such notice shall be given during the first half of the current period.
If remuneration has been fixed for a period of not less than six months, the notice mentioned in the preceding paragraph shall be given three months in advance.

The original judgment is hereby quashed.
This case is hereby remanded to the Tokyo High Court.

Regarding point 1 in the Statement of Reasons for the Jokoku -Appeal presented by Attorney Kunio Yokoyama, Attorney Keinosuke Toyama, Attorney Kentaro Sanno, Attorney Kazuo Kimura, and Attorney Wakako Toyama:
We uphold the determination and judgment arrived at by the second instance court with regard to the point at issue, which proves justified in light of the evidence cited in the original judgment, and we do not find anything illegal in the process thereof in the respect argued by the Appellant's side. The essence of the argument is not acceptable, because it is after all a criticism of the selecting of evidence and fact-finding that is within the exclusive competence of the second instance court.

Regarding point 2 and point 3:
The essence of the Statement of Reasons for the Jokoku-Appeal is as follows: when it comes to dismissal from employment under a union shop agreement, if dismissal from membership is invalid, dismissal from employment must be held invalid accordingly, but the original judgment holding that the validity of dismissal from membership bears no relation to the validity of dismissal from employment is a misjudgment on the validity of the union shop agreement; because dismissal from employment in this case does not meet the criterion for dismissal from employment laid down in the labor contract and the work rules and lacks justifiable reasons, it must be ruled invalid as an abuse of rights, but the original judgment, giving no rational account of this issue, fails to enter sufficient reasons in the judgment, which causes discordance in citing reasons.

In our opinion, it is proper to maintain that the exercise of the right to dismissal from employment by the employer, if it lacks objective rational reasons and cannot be approved as appropriate compared with the view commonly accepted in society, should be no longer good by reason of abuse of the right. On the other hand, a union shop agreement is a system to expand and reinforce the organization of a labor union indirectly by obligating the employer to terminate employment relationships with workers in the event they have not obtained or lost membership of a labor union, and its effect can be acknowledged only when it is expected to fulfill its proper functions as such a system; hence, it is fair to construe that, for the employer to assume an obligation toward the labor union under a union shop agreement to dismiss such a worker from employment, it must be limited to cases where there is no justifiable reason why the relevant worker has not become a union member, and has not obtained labor union membership, or left the labor union effectively, or has been dismissed from membership resulting in them losing their labor union membership, and if dismissal from membership is invalid, the employer is under no obligation to dismiss said worker from employment. And the employer may dismiss from employment a worker dismissed from membership by the labor union in order to fulfill such obligation toward the labor union under a union shop agreement only when the obligation to dismiss from employment arises on the part of the employer under the union shop agreement, which we can affirm as justifiable for objective rational reasons and appropriate compared with the view commonly accepted in society; if such dismissal from membership is invalid, it does not give rise to any obligation to dismiss from employment on the part of the employer as mentioned above, and such case lacks objective rational reasons and cannot be approved as appropriate compared with the view commonly accepted in society, and should be judged invalid as an abuse of the right to dismissal from employment unless such employment is proven rational by specific reasons.

In considering this case in this context, according to the facts established by law under the second instance court, non-litigant Q local of the Federation of P Workers' Unions entered into a comprehensive labor contract with the Appellee company including a union shop clause stating that "the Company shall dismiss from employment a person who left the Union or was dismissed from membership"; on August 21, 1965, the said local notified the Appellant to the effect that the local had removed the Appellant's name from the union register (this Court rules proper the determination by the second instance court taking this removal from the said register as dismissal from membership in real terms) and also notified the Appellee company to that effect, and accordingly the Appellee company, on the 24th of the said month, indicated its intention to dismiss the Appellant from employment in accordance with the provisions of the said union shop clause. Given these facts, it is fair to say that as the case may be, depending on whether the said removal from the register (or dismissal from membership) is valid or not, the said dismissal from employment should be judged invalid. However, while the Appellant argues that the said removal from the register is invalid, thus the dismissal from employment pursuant to the said union shop clause is invalid, the second instance court rejects the Appellant's argument without considering the validity of the said removal from the register (or dismissal from membership) for determination, any ruling on whether or not the dismissal from membership is valid does not affect the validity of dismissal from employment under a union shop agreement at all, which we find is a misinterpretation of the legal principles of dismissal from employment under a union shop agreement, resulting in illegality due to insufficient reasons. Hence, we conclude that the argument presented by the Appellant is well grounded, whereas the original judgment should be quashed. Furthermore, it is ruled appropriate to remand this case to the second instance court because it is necessary to consider the said issue thoroughly.

Therefore, in accordance with Article 407 of the Code of Civil Procedure, the judiciary opinion is unanimously formed and the judgment rendered as the main text.

Justice OGAWA Nobuo
Justice OKAHARA Masao
Justice OHTSUKA Kiichiro
Justice YOSHIDA Yutaka