Earticle

초록

영어

It is incumbent on United States labor unions that are the exclusive bargaining representative of workers, to represent every workers in appropriate unit "fairly, impartially, and in good faith." This obligation is called the Duty of Fair Representation. This duty is not based on any positive law, but is recognized by legal cases through interpretation of Railway Labor Act and National Labor Relations Act, which prescribe the exclusive representation. The duty of fair representation is not imposed on employers but only to representative labor unions. There are two types of breach of the duty: breach by discrimination and breach by bad faith. Breach by discrimination can be further categorized into one based on by race or sex, and one based on union membership. However, discrimination based on race, sex, or national origin only violates Title VII of the Civil Rights Act, and it does not violate NLRA. Therefore only discrimination based on union membership can be brought to NLRB as unfair labor practices according to NLRA. On breach of the duty by bad faith, it does not constitute a breach of duty merely because the a union brought unfavorable result to some members.. Federal Supreme Court recognized the representative union's discretion within reasonableness, and the union's action has to be so far out of "wide range of reasonableness" to be irrational. Representative union's breach of the duty of fair representation can constitute an unfair labor practice in terms of NLRA. However Federal Supreme Court held that because breach of the duty is not classified as unfair labor practice, it is not required to meet prerequisite for unfair labor practices to constitute a breach of the duty. Although criteria for breach the duty and criteria for unfair labor practice differ, there are cases that constitute both. Even if a breach of the duty amounts to an unfair labor practice, the jurisdiction of federal courts does not vanish. The duty of fair representation in United States offers following implications for South Korea. First, Trade Union and Labor Relations Adjustment Act (Act) of Korea burdens the duty of fair representation to both unions and employers, but US only imposes it to unions, not employers. Secondly, Article 29-4 Clause 1 of the Act prescribes the duty of fair representation as “shall not discriminate ... without any reasonable grounds.” It is unclear whether bargaining in bad faith constitutes a breach of the duty here, while it is seen as a breach in United States. Thirdly, the Act needs to present different criteria for breach of the duty and unfair labor practices, similar to United States, and separate cases into “breach of the duty but not an unfair labor practice”, “breach of the duty and an unfair labor practice”, and “not breach of the duty but still an unfair labor practice.”

목차

미국의 공정대표의무제도와 시사점
  Ⅰ. 들어가는 말
  Ⅱ. 공정대표의무의 형성
  Ⅲ. 공정대표의무의 내용
  Ⅳ. 공정대표의무와 부당노동행위
  Ⅴ. 시사점 및 결론
  참고문헌
  〈Abstract〉

키워드

저자

• 유성재 [ Yu, Seoung-Jae | 중앙대학교 법학전문대학원 부교수ㆍ법학박사 ]
• 김희선 [ Kim, Heesun | 중앙대학교 대학원 석사과정ㆍ공인노무사 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  노동법논총 [The Journal of Labor Law]

• 간기

  연3회

• pISSN

  1229-4314

• 수록기간

  1998~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 336 DDC 363