Non-Union Companies Facing Newly Established Unions…How to Prevent Legal Clashes Over Unfair Labor Practices?

-Legal Column by Attorney Yoon Kyung-won, Daeryun LLC (Limited)

Recently, a wave of union organization is blowing through mid-sized and large workplaces that had traditionally maintained non-union management, including the Pangyo IT industry. If a company with little experience in responding to unions responds rashly following past inertia, there is a high risk of facing the unfair labor practice risk prohibited by Article 81 of the Trade Union Act. Moreover, since it stipulates imprisonment of up to 2 years or a fine of up to 20 million won for an employer's unfair labor practices, companies need special caution from the early response stage.

The most important task is to fundamentally block the employer's risk of domination and intervention. In practice, the words and actions not only of top management but also of frontline department heads or team leaders and other middle managers are regarded as acts of the employer. In addition, if a middle manager repeatedly checks whether employees have joined the union or makes remarks revealing a negative perception of union activities, it is highly likely to be used as a circumstance presuming the employer's intent of 'domination and intervention' going forward. Therefore, the company must, immediately upon recognizing the establishment of a union, refrain from all measures that could be misunderstood as separate internal-network surveillance targeting specific union activities or attempts to identify union members.

The second task is the reorganization of the personnel system to defend against controversy over disadvantages to union officers or members. If a transfer order, low personnel evaluation, or disciplinary action is issued to a specific union member immediately after the union is newly established, it is easy to be suspected of disadvantageous treatment on the grounds of union activity. To defend against this, one must leave grounds to prove that the relevant personnel order or evaluation was a measure based on managerial necessity unrelated to union activity and on objective personnel standards. In particular, when imposing discipline on a union member's misconduct, one can prove the legitimacy of the measure in a subsequent dispute such as a remedy application only by strictly applying the same standards and procedures as for non-union members to achieve fairness in the degree of discipline.

Lastly, a practical approach to managing bargaining neglect (refusal or delay of bargaining without justifiable reason) is needed. When a newly established union requests bargaining, if the employer delays bargaining for a long time citing reasons such as insufficient internal preparation, or responds only formally, it easily leads to a violation of the 'duty to bargain in good faith' or controversy over unfair labor practices. If it is difficult to engage in bargaining immediately, one should objectively leave a record that the employer sincerely tried to respond to bargaining, by replying with an official document containing a reasonable justification along with a specific alternative schedule.

The more a company has succeeded in non-union management, the more it should accept the emergence of a newly established union not as a vague crisis but as a process of upgrading the labor-management relations system within the framework of the law. Reorganizing personnel and evaluation standards conforming to labor relations laws through the advice of a legal expert well-versed in labor law from the early stage, and establishing a systematic bargaining strategy, is the only realistic solution to defend against unexpected judicial risk and lead to a soft landing of labor-management relations.

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

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Non-Union Companies Facing Newly Established Unions…How to Prevent Legal Clashes Over Unfair Labor Practices? (Go)