미국 연방노동관계법상 공동사용자 지위 결정에 관한 규칙 개정의 의미 - 초기업별 교섭에서 사용자 지위 및 교섭의무 판단을 둘러싼 쟁점을 중심으로 -

In recent years, the number of cases in which the original employer does not have the right to dispose of bargaining demands has increased due to the proliferation of various multifaceted employment relationships. Accordingly, the number of cases in which unions request bargaining with employers other than the original employer is also increasing. Reflecting the changing face of the workplace, jurisprudence is emerging that determines who is capable of resolving disputes from the perspective of the concrete realization of the right to collective bargaining and imposes an obligation to accept collective bargaining. The CJ Logistics ruling provided the rationale for an employer who does not have a employment contract to be obligated to collectively bargain and the criteria for determining who is obligated to collectively bargain. However, it is not clear how to recognize dominance under each of the bargaining requirements, how to establish and interpret the comprehensive factors for determining the status of a user along with dominance, and how to define the scope of the collective bargaining obligation. More appropriate standards need to be developed as cases applying the substantial control doctrine accumulate. In the United States, where company-level bargaining has been practiced for a long time, the duty to bargain has been imposed on employers other than those who have employment contracts with employees under certain conditions. The joint employer doctrine under the National Labor Relations Act is similar to the substantial control doctrine in that, first, it considers control over working conditions in determining (joint) employer status and, second, it imposes bargaining obligations on employers and other employers who have employment contracts with employees to the extent that they have control or authority. In particular, recent amendments to the rules governing the determination of joint employer status under the National Labor Relations Act decouple the steps for determining joint employer status from bargaining obligations in order to facilitate collective bargaining practices. While clarifying the basic terms and conditions of employment that establish joint-employer status to facilitate the determination of joint-employer status, the amendment also requires employers to bargain over terms and conditions of employment over which they have the right to dispose, rather than limiting themselves to basic terms and conditions of employment, thereby promoting the concrete realization of collective bargaining rights. The federal register of the amendment contains many questions regarding joint employer status and bargaining obligations. The discussion of the criteria for determining joint employer status and the scope of the duty to bargain during the public comment period for the proposed rule raises issues that warrant further discussion in the application of the substantial control doctrine in the collective bargaining context. This article examines the U.S. test for joint employer status and the duty to bargain, focusing on the discussions during the rulemaking process. This article examines the issues surrounding employer status and the scope of the duty to bargain in cases where working conditions are controlled by employers other than those with whom the employee has an employment contract.