노조활동을 곤란하게 할 목적으로 한 행위의 부당노동행위해당성 ― 대판 2011. 7. 28. 2009두9574를 중심으로 ―

Korean Trade Union and Labor Relations Adjustment Act Article 81(TULRAA) prescribes that an employer shall not commit an act falling into the following categories. That is, an act dominating, or interfering with workers in the organisation or operation of a trade union, or an act assisting a trade union with the expenses for operation, provided that the employer allows workers to negotiate or bargain with him during working hours, that he donates welfare funds or funds for the prevention of or relief from economic troubles and other disasters, and that he provides a minimum office space. Trade unions must be organised and operated independently of the influence of employers so that they may represent the interests of workers in the true sense of the word. If they are controlled or dominated by employers or their organisation they are no less than company unions. TULRAA guarantees the independence of trade unions from the influence and interference of employers in two ways. Firstly, it deprives a union of legal protection which does not satisfy the requirements which are provided in Article 2 to keep a trade union independent from employers. Secondly, it prohibits acts of an employer which infringes the independence of a trade union. The unfair labor practice called 'domination and interference' is the second legal system that guarantees the independence of a trade union. Domination and interference would include persuading or forcing an employee to join a company union; preventing employees from attending an inaugural meeting; dismissing important promoters of the organisation; or criticizing the organisation or the operation of a trade union which stands against an employer. Forcing an employee who is a member of a trade union to withdraw from it, or ordering an employee to work on a rest day when a general meeting of a trade union is to be held on that day also constitutes control or interference with a trade union. In the above cases, if the employer dismisses the employee on the ground that s/he has joined or has not withdrawn from the trade union, this constitutes both domination and interference with a trade union and discrimination against the employee. As mentioned above, it seems that activities done by an employer with a view to making trade union activities difficult shall be regarded as unfair labor practices. In addition to this, unfair labor practices should be recognized in case the attempts of an employer to break trade unions are found and recognized.