미국의 부당노동행위파업 법리

In accordance to Korea’s Trade Union and Labor Relations Adjustment Act, the understanding and capacity of worker’s right to strike is generally limited to the collective bargaining issues of economic demands (e.g. wage scales, working hours, etc.), namely the economic strike, whereas the exercise of such a right in the U.S., pursuant to NLRB v. Mackay Radio & Telegraph Co. 304 U.S. 333 (1938), is legally recognized, namely the unfair labor practice strike (ULPs) should the employer violate the guidelines prescribed by the unfair labor practice statute (ULP). This paper, therefore, endeavors to examine the validity, feasibility and ramifications of introducing the exercise of ULPs in the Korean labor market. While Korea has adopted and enacted the basic framework of U.S.’s ULP, which essentially materializes and safeguards workers’ three elemental rights to 1) organize, 2) collective bargaining, and 3) strikes and other forms of protected collective action (concerted activity in U.S.) in support of their demands, statutory discrepancies, nonetheless, do exist between the two countries. Under Korea’s current legal environment, the actions of those who seek both requital and relief from their employer’s violation of ULP are undertaken retroactively through the Labor Relations Commission (LRC), that is, only after the workers have been laid off. The ULP of U.S., on the other hand, allows workers to engage in ULPs 1) immediately after the employer has violated ULP prior to the workers’ dismissal and 2) until the violation of ULP is cured. If ULP materializes the rights of workers, then it naturally follows that a violation of ULP is tantamount to a violation of workers’ rights. And by extension, an employer’s violation of ULP indeed entitles workers to take part in strike. In Korea, however, worker’s right to strike is generally perceived, not for its independent value and inherent ties to ULPs, but simply and inaccurately as an expedient and facilitating instrument undertaken by workers only during collective bargaining for economic demands. As such, this paper will address and advise the need to grant the act of strike as a legitimate, protected, independent right and not as a mere intermediary tool. Furthermore, this paper will examine the socially balanced benefits (e.g., conditions for accepting or denying permanent replacements/strikebreakers, and specifics of workers’ reinstatement rights) of introducing ULPs alongside Economic strike already present in the Korean labor market. Under ULPs, restricting employers from hiring permanent replacements and allowing absolute and immediate reinstatement of strikers will be met with minimum resistance. Introducing ULPs, however, may incentivize employers to seek a counter-balancing measure and demand hiring permanent replacements for Economic strike. The balance, however, can be achieved because, upon a close examination of ULPs, the law does allow employers to seek permanent replacements for Economic strike, insofar as the employers can show that they have followed the considerations set forth by the labor relation that their needs and reasons for hiring permanent replacements are not anti-union, but indeed substantial and bona fide. Introducing the U.S. model of ULPs to the Korean labor market will prove to be highly effective and highly beneficial to this nation at large. Faithful protection of workers’ rights, sincere bargaining obligation by the employers, large reduction of those who seek both requital and relief from their employer’s violation of ULP, reduced shutdown and lockout of plants and operations, diminished role and intervention by the LRC, and overall improvement in the integrity and efficacy of collective bargaining will not only help simplify legal relations but ultimately help improve labor-management relations and industrial-labor relations as well.