교섭대표노동조합의 공정대표의무

I intended to interpret the Labor Union and Labor Relations Adjustment Act(LULRAA) Sec. 29-4 that regulates a duty of fair representation in Korea in this article. I presented here, furthermore, a bill for amending the clause above. Even though a bargaining representative union has an exclusive bargaining status within a bargaining unit, the duty of both the union and an employer only covers discriminations among unions, and between a member of one union and a member of another union that had participated in bargaining representative election procedure. Of course, where a bargaining representative union concludes an agreement with an employer, the agreement in general does not effect on other union(s) that did not participate in the election procedure. These systems are, however, very extraordinary and unique in the world. As known as well, though there is no the duty of an employer side in U.S., the duty of the exclusive bargaining union in U.S. is against not also union members, but also all employee within the bargaining unit. Meanwhile the duty that a minority has suggested in Japan since about 25 years ago covers representation in relations only between an union and its member(s), and a majority has interpreted an exclusive bargaining system as an unconstitutionality. By the way the duty of the employer does not have a large merit, because a breach of the duty is itself an unfair labor practice. The unfair labor practice system covers more wide scope of the employer's actions against an union and its members than the duty does. In addition, though the union or its member is able to petition the Labor Commission for remedy against the employer's unfair labor practice, in case of a breach of the duty the union only can petition the Commission for remedy against the breach. Though the unfair labor practice system relates closely to the duty of fair representation, an unfair labor practice does not itself be a breach of the duty. For example, where an employer refuses to bargain with a bargaining representative union, it establishes an unfair labor practice, but it is never to be a breach of the duty. Furthermore, my suggestions are as follows:First, the other party of the duty should be extended, and the duty has to cover fair representations against not only an union and its member(s) that participated in bargaining representative election procedure, but also all employee within the bargaining unit. Second, a period of continuing a status of the representative union should be regulated. I think that two years are desirable as a period of continuing a status of the representative union, because the LULRAA provides that no collective agreement shall have a valid period exceeding two years. Third, a decertification petition system like in U.S. should also be introduced.