"Excluded from Promotion If You Join the Union"...What Are the Legal Issues of Unfair Labor Practices in Private Remarks?

-Legal Column by Attorney Kim Kwang-deok, Daeryun LLC (Limited)

Recently, at an airline, an incident occurred in which the cabin crew labor union filed a complaint against management officials on charges of unfair labor practices. It was triggered by a recording of a phone call by a staff member suggesting that those with a union background would be excluded from promotion. The company side pleads that it was "private conversation between individuals," but whether it is unlawful is expected to be concluded based on legal judgment. This incident has great implications for corporate HR and labor affairs personnel. This is because even a joke carelessly thrown out in the field or an expression of personal opinion can be regarded as an "unfair labor practice" prohibited by the Trade Union and Labor Relations Adjustment Act (the Trade Union Act).

The unfair labor practice system, designed to protect workers' three labor rights, is a key device for maintaining the balance of power between labor and management. The current Trade Union Act broadly classifies these into four types: △dismissal or disadvantageous treatment on grounds such as joining a union △employment conditioned on joining or leaving a specific union (yellow-dog contract) △refusal of or neglect in collective bargaining without justifiable reason △domination of and intervention in the organization and operation of a labor union and support of operating expenses.

What is most frequently disputed in corporate practice is, by far, "disadvantageous treatment" and "domination and intervention." For example, giving a union member a low work rating without reasonable grounds or passing them over for promotion is a representative case of disadvantageous treatment. Also, discriminating against a specific union in the bargaining-window unification procedure (violation of the duty of fair representation) is all included within the category of unfair labor practices. The sanctions for such violations are by no means light. If a remedial order of the Labor Relations Commission is not complied with, one faces not only a fine but also, in the case of violating a confirmed order, heavy criminal punishment of imprisonment of up to 3 years or a fine of up to 30 million won. Separately from the remedial order, direct criminal punishment for the unfair labor practice itself—imprisonment of up to 2 years or a fine of up to 20 million won—may also be imposed.

In particular, it is necessary to pay attention to the trend of Supreme Court precedents (2023Du41864). Normally, an application for remedy for an unfair labor practice must be made within 3 months from the date the act occurred, but when a disadvantage such as wage discrimination due to performance appraisal or being passed over for promotion continues, this is regarded as "one continuous act," and the remedy application period is broadly recognized. This means that even a company's past HR measure can flare up into a legal risk at any time if its influence continues to the present.

Unfair labor practices become the decisive evidence—the "smoking gun"—proving the employer's "intent" when scattered fragments such as interview content, emails, and internal notices come together. Therefore, companies must build a concrete defense system that can operate immediately. They must establish a speech-and-conduct manual for managers to fundamentally block a carelessly thrown remark from escalating into a legal crisis, and thoroughly objectify and document HR and disciplinary standards to have indicators proving the legitimate exercise of HR authority. Above all, decisions with a high potential for labor-management conflict must necessarily go through prior review by a labor-specialist legal professional, and the institutionalization of decision-making that preemptively filters out judicial crises is needed.

Reporter Lee Dong-oh (canon35@mt.co.kr)

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