신인(信忍)의무 견지에서 본 공정대표의무 위반의 판단기준에 관한 연구

This article discusses the doctrine of the unions’ duty of fair representation under US law and that in the Trade Union and Labor Relations Adjustment Act, and attempts to establish standards for bargaining representatives’ breach of the duty of fair representation. First, the duty of fair representation(“DFR”), which is inextricably linked with the right of a bargaining representative to bargain collectively for and on behalf of all employees in the bargaining unit, should be viewed as a duty that is accompanied by the fiduciary relationship between a bargaining representative and all employees, which is recognized under section 9 of the NLRA. Thus, DFR is a fiduciary duty in nature. Second, whereas the DFR as fiduciary duties under US law is a duty of loyalty in its nature, which requires a bargaining representative to represent the employees he or she represents adequately as well as honestly and in good faith, the duty of fair representation as fiduciary duties under in Trade Union and Labor Relations Adjustment Act (“the Trade Union Act”) is duties that includes a main duty of non-discrimination and an ancillary duty of good faith that requires representative bargaining unions to act in accordance with the tenor of affairs of the collective bargaining to avoid harm to minority unions and their members. Third, the essence of the duty of fair representation of union representatives, as set out in the Trade Union Act(“a representative bargaining union’ DFR”) is a duty of care, which has the nature of fiduciary duties. In terms of the standards for determining whether discrimination is a breach of a representative bargaining union’ DFR, the principle of proportionality should be used to determine whether there is discrimination without reasonable cause, and the existence of different treatment among the objective requirements should be proved by the union alleging discrimination, while legitimacy, suitability, necessity and balancing, the standard of the principle of proportionality, should be proved by the representative bargaining union alleging that the discrimination is reasonable. There is also a presumption of intent or negligence where discrimination is recognized. Furthermore, if a representative bargaining union, through intent or negligence, causes harm or other disadvantage to minority union or their members through unreasonable or unfair means other than discrimination during the bargaining process or other activities subject to the effect of the duty of fair representation, such actions are recognized as unfair measures other than discrimination, which is ancillary to a representative bargaining union’ DFR. Fourth, where the employer is solely responsible for the duty of non-discrimination, and in cases of discrimination, whether the content of a collective labor agreement, the implementation or application of a collective labor agreement constitutes a breach of the duty of non-discrimination is determined in accordance with the principle of non-arbitrariness. On the other hand, where the employer is jointly responsible for the duty of non-discrimination with a representative bargaining union, the ‘proportionality principle’ should be used to determine whether there has been a breach of the obligation. Finally, in the case of the duty to ensure non-discriminatory treatment between the trade unions involved in collective bargaining under Article 29-2(2) of the Trade Union Act, the existence of discrimination is determined in accordance with the prohibition of arbitrariness.