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Subject   September 2021 - Criteria for Judging Unfair Labor Practices and Specific Examples
Criteria for Judging Unfair Labor Practices and Specific Examples

I. Introduction
Article 33 Paragraph 1 of the Constitution stipulates that workers have the right to independent association, collective bargaining and collective action in order to improve working conditions. The three labor rights are the basic rights of the people guaranteed by the Constitution. The Trade Union Act has three labor rights mentioned above and provisions on unfair labor practices. It describes in detail the violations of the three labor rights, stipulates the procedure for applying for remedy for unfair labor practices through the Labor Relations Commission, and allows criminal punishment for unfair labor practices through the Labor Office. According to the court ruling, the unfair labor practice system was specially established by the Trade Union Act to quickly normalize the order of labor relations by securing the three rights of labor by preventing and eliminating the actions of employers that destroy the order of collective labor relations.
Unfair labor practices can be said to infringe on the three rights of labor. The content refers to the act of giving disadvantages to the union or its members through the five types of unfair labor practices described in Article 81 of the Trade Union Act by the employer and the person in the position of the employer. In this regard, I would like to take a detailed look at what are the specific criteria for judging unfair labor practices, and examples of each type that occur in reality.

II. Criteria for Judging Unfair Labor Practices
The three elements of unfair labor practices must be composed including the following: there should be the actions of the employer; there should be one of the five items described in Article 81 of the Trade Union Act, and the employer must have an intention to engage in unfair labor practices.

1. The employer’s behavior
Unfair labor practices are caused by the actions of the employer. In the Trade Union Act, an employer refers to an employer who is excluded from membership in a labor union, a person in charge of business management, a person who acts on behalf of the employer in matters relating to the workers of the business, and a person who acts on behalf of the employer's interests (Union Act: Articles 2 and 4). Here, 'a person acting for the employer in relation to the workers of the business' refers to matters such as determining the working conditions of workers, such as personnel management, salary, welfare, and labor management, or giving orders or supervising work. A person who has been given certain powers and responsibilities by the employer. And 'a person who always acts on behalf of the interests of the employer' refers to ① directly participating in labor relations decisions such as personnel management, salary, disciplinary action, auditing, and labor management for workers, or ② related to the employer’s plans and policies for the employment relationship. A person who has the authority to handle confidential matters.
Even if a worker who does not fall within the scope of the employer follows the employer's instructions or under the tacit approval of the employer, acts that obstruct the organization or operation of the union, must be regarded as an employer's acts. However, if an ordinary worker personally engages in unfair labor practices that infringe on the three labor rights, it cannot be regarded as an unfair labor practice.

2. Five types of unfair labor practices
① Unfavorable treatment due to labor union activity: Dismissal or unfavorable treatment of a worker on grounds that he has joined or intends to join a labor union, or have attempted to organize a labor union, or have performed any other lawful act for the operation of a labor union; (Infringement of the right to organize)
② Anti-union contract: Dismissal or unfavorable treatment of a worker on grounds that he has joined or intends to join a labor union, or have attempted to organize a labor union, or have performed any other lawful act for the operation of a labor union (violation of the right to organize)
③ Refusal or neglect of collective bargaining: Refusal or delay of the execution of a collective agreement or other collective bargaining with the representative of a labor union or with a person authorized by the labor union, without any justifiable reason (infringement of the right to collective bargaining)
④ Domination, intervention, or aid for operating expenses in labor union activities: Domination of or interference in the organization or operation of a labor union by workers, and payment of wages to the full-time officer of a labor union or financial support for the operation of a labor union (violation of the right to organize)
⑤ Disadvantageous disposition in case of reporting on collective actions or unfair labor practices: Dismissal of workers or acts against their interests on the ground that they have participated in justifiable collective activities, or that they reported to or testified before the Labor Relations Commission the fact that the employer has violated the provisions of this Article, or that they have presented other evidences to the relevant administrative agencies (violation of industrial action)
3. Intention of unfair labor practices
In order to judge unfair labor practices, it must be done with a clear intention of the employer regarding unfair labor practices. Employers must intentionally give disadvantages to workers for their legitimate union activities. According to related court ruling, “whether an employer’s conduct falls under the unfair labor practices stipulated in the Trade Union Act is determined comprehensively by thoroughly reviewing all circumstances that can infer whether the employer intends to engage in unfair labor practices.”

III. Judgment Criteria by Type of Unfair Labor Practice
1. Unfavorable treatment
In order to become unfavorable treatment, three conditions must be met. First, workers must join or have an organization in a labor union or participate in collective action. Second, workers should be disadvantaged because they joined or participated in a labor union or because they participated in collective action. Third, any unfavorable treatments made by the employer to the workers must be based on the legitimate union activities of the workers.
(1) The case related to the job transfer stipulates that “If it is recognized that the employer made a transfer order because the worker’s legitimate labor union activity was the practical reason, but ostensibly citing the necessity for work, it should be regarded as an unfair labor practice.” .
(2) In the case related to dismissal, “unlike the apparent reason for dismissal when an employer dismisses a worker, if it is recognized that the dismissal is based on the fact that the worker actually did a justifiable act for the union’s work, it must be regarded as an unfair labor practice. Whether a worker's justifiable act for the union's work is the actual reason for dismissal depends on the reasons for dismissal as suggested by the employer, the content of the worker's justifiable actions for union affairs, the time of dismissal, the relationship between the employer and the union, and so on. The judgment must be made comprehensively by examining whether or not there is an abuse of disciplinary discretion and various circumstances that can presume the existence of the employer's intention to engage in unfair labor practices.”

2. Anti-union contract
The anti-union contract consists of obstruction of the right to organize, coercion of union, and union shop.
(1) Interference with the right to organize is a case in which the condition of employment is that a worker will not join or withdraw from a union. Here, when it comes to any union, in the era of multiple labor unions, membership in the company's favorable union can be a condition of employment. In addition, making resignation from a union a condition of employment can be seen as including the intention to neutralize the power of the majority union in the existing employment relationship.
(2) The coercion of unity is an act in which workers are required to become members of a specific union as a condition of employment. This can be judged as the intention of the employer to make a particular union become the majority union, which the employer can control within the sphere of influence, and to make the majority union the useless union.
(3) In union shop, when a labor union represents at least two-thirds of the workers in the relevant workplace, the conclusion of a collective agreement stipulating that the worker becomes a member of the union as a condition of employment is an exception. This clause is an exception to the coercion of unity, and can only be concluded when more than two-thirds of the workers in the relevant workplace are represented. It is an anti-union contract and an unfair labor practice for the union shop clause to be signed with less than two-thirds of the workers employed at the relevant workplace. Even if a union shop is properly concluded, the employer may not act disadvantageously to the worker because the worker has been expelled from the union or because he or she has left the union and formed a new union or joined another union (Article 81 (2) of the Trade Union Act).

3. Refusal to bargain collectively or neglect it
The purpose of the establishment of a labor union is to improve working conditions through collective agreements. In order to conclude this collective agreement, the union must determine the working conditions in writing through collective bargaining with the employer. The act of an employer refusing or neglecting to sign a collective agreement or other collective bargaining with a union representative or a person delegated by the union without justifiable reasons is an unfair labor practice.
Here, refusal to bargain collectively means not complying with the collective bargaining demanded by the labor union, and neglect of collective bargaining means to comply with collective bargaining formally but not faithfully.
Even if the union demands collective bargaining, the company may refuse the collective bargaining if there is a justifiable reason. For that reason, the precedent stated, “Whether or not there is a justifiable reason for the employer’s refusal or negligence in collective bargaining is determined by taking into account the bargaining powers of the union side, the negotiation time, negotiation place, negotiation matters, and his negotiating attitude requested by the union side. In general, it should be judged according to whether it is recognized that it is difficult to expect the employer to fulfill the collective bargaining obligation.

4. Domination or intervention in labor union activities
(1) Domination-intervention
The act of controlling or intervening in the organization or operation of a labor union constitutes unfair labor practice. Employers' domination-intervention in union activities refers to the fact that the employer controls or intervenes in the organization or operation of the union through anti-union remarks or specific actions to participate in the independent decision-making of the union. According to the precedent, “Unfair labor practices of domination and intervention refer to the employer’s leading influence in the organization and operation of the union, thereby influencing the decision-making of the union or interfering with the autonomous operation and activities of the union. It refers to acts such as interfering with the union or encouraging division. In the event of such an employer's actions, if the intention to dominate or intervene in the organization or operation of the union is recognized, unfair labor practice is considered by taking into account the circumstances, place, content, method, and impact on the operation or activities of the union, etc.”

(2) Salary payment to full-time union employees
It is unfair labor practice that the company pays wages in excess of the working hours exemption limit or subsidizes the operating expenses of the labor union. In consideration of the number of union members who are employed in business or workplace, those exempted from paid working hours are subject to this Act or may perform the duties prescribed by other laws and the maintenance and management of the labor union for the development of sound labor-management relations. The problem here is to receive wages in excess of the working hours exemption limit. However, the act of subsidizing wages to workers who are merely full-time union workers and have not been designated as exempt from working hours is itself an unfair labor practice. The wages paid to those exempted from working hours shall correspond to the working hours exempted from the duty to provide work. Even if it is based on an agreement in a collective agreement between labor and management, excessively set wages for full-time employees constitute unfair labor practices.

(3) Aid for operating expenses
It is an unfair labor practice for an employer to subsidize a labor union's operating expenses. Provided, however, that workers can donate funds for workers' welfare funds, economic misfortune, and other disasters, and provide a minimum-scale union office. Exceptions are made for operating expenses assistance to the extent that there is no risk of infringing on the independent operation or activities of the union.
In aid of the labor union's operating expenses, the employer's domination-intervention in the union was strictly regarded as unfair labor practice. However, the Constitutional Court ruled, “The provision of prohibition of aid for operating expenses prohibits any act of aid for operating expenses with the exception of the two exceptions stipulated in the proviso to Article 81, No. 4 of the Trade Union Act, which regulates more than required, so it cannot be regarded as an appropriate means to achieve the legislative purpose.”

(4) Anti-union speech and dominance & intervention
Behaviors that can affect workers and labor unions include 'expressing opinions through speeches or in-house broadcasting' and 'acting to express opinions through home correspondence-letters'. If it is judged that such an employer's media expression has the intention to suppress or coerce the union activity, it can be presumed that there is a 'domination-intervention intention' in the union activity.
Accordingly, employers have freedom of the press, and the labor union has regulations prohibiting unfair labor practices in exercising the three labor rights. Therefore, whether the expression of opinion or written notice of an employer or a person in the employer's position is an unfair labor practice should be judged based on whether the employer intends to infringe on the three labor rights. According to the related precedent, “In order for an employer’s anti-union speech to fall under domination or intervention, there must be a fear of undermining the independence or organizational power of the union, and the existence of such concern depends on the content, place, method, situation, and labor union of the statement. It should be judged individually by comprehensively considering the impact on the employees and the presumed intention of the employer.”

IV. Conclusion
The three labor rights are the basic rights of the people guaranteed by the Constitution, and the Trade Union Act was enacted to materialize them. Through union activities, it is possible to maintain and improve the working conditions of workers. It is the unfair labor practice regulations in Chapter 6 of the Trade Union Act that enable the exercise of these three labor rights. The unfair labor practice system is a system to enhance the viability of the union by guaranteeing the three rights of labor and for the win-win development of labor-management units, etc.

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190 (1/10)
No Subject
190 October 2021 - Freedom of Speech and Responsibility  
September 2021 - Criteria for Judging Unfair Labor Practices and Specific Examples  
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183 March 2021 - Procedures for Wage Adjustments (Increases, Reductions, Freezes, Returns) and Related Cases  
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179 November 2020 - Employment Contracts and the Principle of Priority on Favorable Conditions  
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175 July 2020 - Korean Labor Law and Criteria for Determining Whether a Truck Owner/Driver is an Employee  
174 June 2020 - Labor Union Act and Criteria for Determining Whether a Unified Bargaining Channel Can Be Separated  
173 May 2020 - Whether Union Activities by Union Officials is Company Work  
172 April 2020 - Work-from-Home Systems  
171 March 2020 - Corona Virus Infections and Shut-down Allowances  

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