Unfair labor practice has been in the news quite often, and recently, an arrest warrant was served against a CEO charged with engaging in it. The government also announced that it will take stronger action against companies guilty in this manner.
However, many CEOs do not clearly understand the meaning of “unfair labor practice”. Therefore, some CEOs and HR managers act recklessly in ways likely to be considered unfair labor practice, or fail to properly manage their human resources due to unwarranted concern.
This article is meant to offer some guidance to help CEOs understand the term by looking at some different types of unfair actions.
Employer interferes with workers exercising their 3 fundamental labor rights
Unfair labor practice is often misinterpreted as unfair actions by employees. However, the term refers only to actions taken by employers, not trade unions or workers. Actions of employers that obstruct or interfere with workers’ or trade unions’ lawful activities, or treat them unfavorably due to their union activities.
In order for a labor practice to be deemed unfair, there should be an intention by the employer to engage in unfair labor practice, usually involving anti-union actions which aim to obstruct union activities. This is determined in a variety of ways, including whether the actions represent traditional practice, and whether one group of workers is targeted over others.
The burden of proving a labor practice is unfair lies with the employee or trade union concerned. Recently, voice/video recordings and SNS messages have been used as evidence.
There are various types of unfair labor practices: unfavorable treatment, anti-union labor contracts, a refusal to engage in collective bargaining, and domination of or interference with union activities. We will examine each of these unfair labor practices in detail.
Unfavorable treatment: Discrimination against union members
Unfavorable treatment of union members is the most common type of unfair labor practice. Examples of such treatment include disadvantageous measures in terms of employment status (dismissal, workplace transfer, promotion, etc.), economic matters (discriminatory wage payment, etc.), psychological matters (deprivation of work position, etc.) and otherwise penalizing for union activities.
For example, company A transfers 10% of its employees to regional offices every year under a job rotation system. This year, many union officers were transferred to other areas. The trade union insists that this job transfer amounts to unfair labor practice and should be rescinded immediately. Is the union correct?
The important point here is whether the union officers were treated unfavorably because of their union membership. Whether the transfer of union officers is an unfair labor practice or a justifiable personnel measure shall be determined in consideration of various factors. If the transfers are decided according to appropriate criteria, it cannot be deemed unfair even if a number of union officers are moved to regional offices. On the other hand, if the measures amount to unfavorable treatment toward union members without justifiable reason, this constitutes unfair labor practice.
Labor contract given on the condition that the employee join or not join a trade union
If an employer makes it a condition of employment that workers join or not join a particular trade union in the process of hiring, this is deemed an anti-union labor contract and unfair labor practice. Whether workers join a trade union or not should be at their own discretion.
However, there is an exception – ‘union-shop’ agreements, which are collective agreements that mean a worker must be a member of a particular trade union representing at least two-thirds of employees working in a workplace.
Refusing to engage in or unreasonably postponing collective bargaining, without justifiable reason
If an employer refuses to engage in collective bargaining without justifiable reason, this constitutes unfair labor practice. For example, if the employer delays or avoids entering into the collective bargaining process and demands that the union change a particular bargaining representative, bargaining items or schedule, this is recognized as unfair labor practice.
However, it is not an employer’s responsibility to accept every request from its union to enter into collective bargaining. If the trade union is not qualified to engage in collective bargaining, it is not deemed unfair labor practice to refuse to bargain, and refusal in such a situation is in fact a legal action.
The bargaining items should be matters over which the employer has disposal authority and are related to the entire workforce and their working conditions. Therefore, an employer can reject excessive union demands to negotiate on political matters or reinstate dismissed workers.
Also, other matters such as venue, schedule and procedures for collective bargaining should be decided by agreement between union and employer. The employer therefore does not have to accept unilateral notice from a union about bargaining venue, schedule and procedures, etc. The company also has the right to give its input regarding those matters or demand revision of union suggestions.
Domination or interfering in trade union operations
“Domination” and “interference” refer to an employer’s unfair intervention in the organization or operation of a trade union. Examples include interference in union organization (e.g. persuading employees to withdraw from the union); interference in union management (e.g. requesting the union to expel a particular member), interference in union activities (e.g. attempting to break up strikes) and giving financial support to the union.
Regardless of whether the company intends to interfere with union activities, any employer act of intervention is subject to punishment. Intervention in union voting for industrial action and officer elections are also deemed to be unfair labor practice.
An employer expressing his/her critical view of a union strike or explaining the managerial difficulties caused to the company are not considered unfair labor practice. The important point is whether an employer’s action is part of normal business activities, or intended to interfere in union activities.
Recently, the courts have had a strict view of companies giving financial support to their union. An important example is if the employer pays an additional allowance or higher wages to time-off workers (those allowed to engage in union activities during regular work hours), this may be considered unfair labor practice.
Therefore, any financial support to a union can be deemed unfair labor practice, except payment of regular wages to full-time union officers within the maximum time-off limit, financial assistance for economic damage or disaster relief and providing office space of a minimum size.
Better understanding of unfair labor practice towards better relations between management and labor
In a recent press conference, the Korean government announced that it will strictly enforce legislation against unfair labor practice. Meanwhile, a number of companies are in trouble over such related issues as discriminative treatment against union members and domination of or interference with a trade union.
Unions often apply for remedy from the Labor Relations Commission on the grounds of claims that a company’s personnel measures are unfair labor practice. Such actions not only undermine the trust between labor and management, but also negatively impact corporate reputation. Therefore, CEOs are advised to enhance their management transparency and clearly understand the meaning of unfair labor practice to prevent any disputes over this issue.