Newspapers and the broadcast media often report senior corporate executives’ remarks, such as “We cannot recognize any trade union” or “It is impossible to do business because of trade unions”. What legal problem is there with such a remark that a corporate executive makes in public, honestly expressing his/her feelings? The executive’s act could constitute an unfair labor practice under Article 81 of the Trade Union Act. Trade unions highlight employers’ unfair labor practices and use them as a means to strengthen their bargaining power and expand their organization. They include matters related to unfair labor practices, which are not subject to collective bargaining, in collective agreements, thereby putting pressure on the management and using them as union publicity tools. In this issue, we would like to look at the most frequently committed types of unfair labor practices, disadvantageous treatment (subparagraphs 1 and 5) and domination and interference (subparagraph 4).
Disadvantageous treatment given to workers for their involvement in union activities (Subparagraphs 1 and 5 of Article 81 of Trade Union Act)
The type of unfair labor practices most frequently committed by employers while they try to counter union activities is disadvantageous treatment. To be concrete, it refers to cases where an employer intentionally gives disadvantageous treatment to a worker in terms of promotion, wages and assignment, or dismisses a worker for engaging in legitimate union activities.
The actual criterion used by Labor Relations Commissions and the courts to judge whether an act constitutes disadvantageous treatment or not is whether an employer’s intent to commit an unfair labor practice can be inferred from his/her act. The Supreme Court said that if an employer promotes union leaders taking a hard-line stance during wage and collective bargaining in order to exclude them from the bargaining process, the intent to commit an unfair labor practice can be inferred from such an act.
However, if the union leaders are among many promotion candidates and get promoted during a regular promotion period because they have shown the most outstanding performance, the Supreme Court said, “such an act will not be considered an unfair labor practice since an employer is not obligated to respect every union member’s desire to continue to engage in union activities”.
Therefore, companies need to make their personnel management systems transparent and measurable to ensure that their acts do not constitute disadvantageous treatment. Disciplinary actions, personnel reassignment/transfer, etc., are the management prerogative of a company if they are determined based on a fair personnel management system. In such cases, the company can be free from any dispute raised by the trade union over unfair labor practices.
Domination of or interference with trade union (Subparagraph 4 of Article 81 of Trade Union Act)
Domination or interference means any act of unfair involvement in organizing and operating a trade union in order to obstruct union activities. Once the multiple unions system enters into force on July 1, 2011, many trade unions will newly emerge, which is expected to increase legal disputes as to whether or not a company dominates or interferes with the trade union. Let’s consider if each of the following cases constitutes an unfair labor practice or not.
Case 1 >
In response to union members’ question of how to withdraw from the trade union, the general affairs manager of a hospital posted on the company’s bulletin board a public notice indicating the withdrawal procedures and methods. A company posted on its bulletin board a public notice countering the trade union’s argument that the act of shutting down a department and appointing its employees to other departments is a form of forced restructuring in violation of the collective agreement.
Case 2 >
A CEO told all of its employees during a year-end ceremony, “A trade union that should not have been established given the nature of our organization has emerged.” In relation to the establishment of a trade union in his church, a church pastor said in an interview with the press, “It is premature to have a trade union in a Korean church. Calculating gains and losses and solving problems through negotiations is against Christian belief and spirit of service.”
The answer is that whereas the first case does not constitute domination and interference, the second case does. The courts and Labor Relations Commissions have recognized in their decisions that an employer has the freedom to state his/her opinions through speeches, broadcasts, letters and so on within the company. But they have also focused on whether such acts could undermine union activities. In the first case, the general affairs manager and the company provided information in a passive way by posting a public notice. In contrast, in the second case, the CEO and the church pastor openly showed their hatred for the trade union. Therefore, the two cases produce contrasting conclusions.
These days some trade unions are reported to seek a dodgy time-off deal in order to prevent union activities from being undermined due to a reduction in the number of paid full-time union officials after the introduction of the time-off system. They typically ask employers to pay the costs of operating the union office, to transfer to the union the right to operate vending machines on the company premises and to set aside funding for higher union dues. Operating the time-off system in an unjust way is a form of domination and interference and thus constitutes an unfair labor practice. Nonetheless, some companies are accepting such demands for fear of getting into conflict with trade unions. The time-off system is a minimum safeguard intended to reduce any harmful effects of the multiple unions system taking effect on July 1.
To cope with the emergence of multiple unions as well, companies should observe the law, thereby helping to form right opinions among their employees. It is hoped that companies will make efforts to establish rational industrial relations by becoming fully aware of various types of unfair labor practices and operating the time-off system in a legitimate way.