복수노조 하에서 중립유지의무와 공정대표의무의 관계에 관한 검토 - 부산고등법원 2018. 12. 13. 선고 2018나11667 판결을 소재로 -

Abstract

It is very difficult to determine whether unfair labor practices are established around discrimination among unions in multiple union systems. This is due to the following circumstances: The first is that the conditions presented by the user apply in common to multiple unions, and to all members of these unions. That is, the working conditions (or the application of the working conditions) are neutral in the scale, propensity, and athletic lines of the trade unions that exist in plural. The user will attempt to present neutral conditions to create an appearance that intentionally does not discriminate against a union. Second, it is not easy to assess that the working conditions (or the application conditions of the working conditions) presented by the user are clearly unreasonable. It would be very difficult to assess it as unreasonable if it presents reasonable content in corporate management, for example, conditions such as cooperating in improving productivity or in cooperating in labor-management reconciliation as a precondition. Third, it is left to the union or its members to decide whether to accept these conditions. In other words, the disadvantage of not accepting is the result of the independent and free judgment of the union and its members.<BR> The logic previously used to determine whether such unfair labor practices are established is a duty to maintain neutrality. However, the violation of the obligation to maintain neutrality is controversial in that it is a law established in Japanese academia and precedent since it was presented in the ruling on the Nissan Motor case by the Supreme Court. In other words, Japan and South Korea guarantee three labor rights in the Constitution, including collective bargaining rights, but Korea adopts a single bargaining window system, and Japan adopts an individual bargaining system, so there is room for understanding that the neutral obligation can be applied to discrimination cases caused by unification of bargaining windows<BR> Therefore, the purpose of this paper is to explain the relationship between the neutral maintenance obligation and the fair representative obligation under multiple unions. This paper confirmed that unfair labor practices and violations of fair representative obligations are not mutually exclusive because neutral maintenance obligations are homogeneous to fair representative obligations and violations of fair representative obligations cannot be declared to constitute unfair labor practices. If a employer uses collective bargaining as an opportunity to unfairly discriminate against a particular union and its members, the union and union members Unions and union members can receive relief through the fair representation duty system or through the unfair labor practice system for violation of the duty to maintain neutrality.