미국의 부당노동행위 증명책임에 관한 일고찰 - Wright Line test를 중심으로 -

In unfair labor practice cases, it is often difficult for workers or labor unions to prove legally required facts such as the existence of unfair labor practice intent. For this reason, many scholars have argued that the burden of proof should be shifted to the employer, or that the burden of proof should be reduced for workers or labor unions. Recently, a bill has been proposed to shift the burden of proof to the employer in unfair labor practice cases, and the National Human Rights Commission has also expressed the opinion that the burden of proof should be shifted to the employer in unfair labor practice relief procedures. In the allocation of the burden of proof for the establishment of unfair labor practices, it would be desirable to shift the burden of proof to the employer. However, in the absence of legal revision, it is also an urgent task of labor law to find a way to ease the burden of proof for workers and labor unions through interpretation in unfair labor practice cases. In this hermeneutical approach, it is noteworthy that the same effect as redistributing part of the burden of proof to the employer can be achieved by easing the burden of proof on the worker's side through "De facto presumption“ This paper will first examine U.S. law to gain some insights into how to ease the burden of proof for workers and labor unions in unfair labor practice cases by using "De facto presumption" to prove essential facts. In the United States, there was also confusion in the judgment surrounding the existence of the causal relationship between the employer's illegal motive (anti-union motive or intent) and the discrimination in working conditions and employment. The Wright Line test, developed by the National Labor Relations Board, resolved this confusion. This test is significant in that it significantly eases the burden of proof for workers without overly generously recognizing the recognition of causality by combining De facto presumption and the shifting of the burden of proof. If we do not overcome theory of burden of proof set by the Supreme Court and base ourselves on a new theory of burden of proof allocation, we need to actively adopt the test established by the U.S. National Labor Relations Board to facilitate the allocation of the burden of proof on the workers’ side.