노동조합이나 조합원에 대(對)한 사용자의 언론자유의 한계(限界)와 부당노동행위 - 대법원 2013. 1. 10. 선고, 2011도15497 판결을 중심으로 -

This study critically reviews the Supreme Court Decision 2011Do15497, decided 2013. 1. 10, which for the first time set forth when employer communication with labor union and union members deviates from the permissible scope and constitutes unfair labor practices. This article suggests to use “chilling effects” as a criterion of determining the limits on employers' right of free speech which shall be regulated as unfair labor practices by dominating or interfering with the formation or administration of any labor union. Chilling effects refer to negative effects in relation to the three major labor rights or the exercise of such rights that arise or are likely to arise due to employer communication with labor union or union members. When chilling effects are deemed occurred, the employer's communication will constitute unfair labor practices by domination of or interference with the formation or administration of the labor union. Factors in determining chilling effects include the substance of employer communication itself,the timing for which the three major labor rights were exercised and the details, circumstances and purpose of employer communication. * Attorney at Law, Law Firm Gonggan. 判例評釋345Such determination will mainly involve whether the employer coerced or notified disadvantages or guaranteed a provision of benefit, which part of the three major labor rights was exercised, whether the employer's legitimate interests are concerned, the imminence of the labor union's or union members' exercise of the three major labor rights, negative effects upon the exercise of the three major labor rights considering the details,circumstances and purpose of the communication and the illegality in exercising the three major labor rights. The decision under review has permitted a criterion broader than what is prescribed in Section 8(c) of the Taft-Hartley Act since it held ‘when a threat of disadvantage or promise of benefit is contained’ or unless it is related to factors that interfere with independence of the labor union such as other domination or interference. as a limit upon an employer's free speech rights. Nonetheless, it could have been better if it ruled ‘factors that have chilling effects upon independence of the labor union’by using ‘chilling’, the term used in the Supreme Court Decision 97Nu8076, decided 1998. 5. 22., which can flexibly expand the scope of unfair labor practices.