Newsletter | October 2016, Issue 3
	LABOR & EMPLOYMENT
	Seoul Central District Court Answers the Question of What Constitutes a Breach of the Representative Bargaining Union's Duty of Fair Representation?
	On July 21, 2016, the Seoul Central District Court rendered its decision2 addressing the duty of fair representation under the Trade Union and Labor Relations Adjustment Act ("TULRAA"), and the effect of a breach of this duty.
	In its decision, the court stated that the duty of fair representation has both substantive and procedural aspects.
	Substantively, it is a duty to be fair to minority unions in terms of the working terms and conditions contained in the final CBA.
	Procedurally, it is a duty not to discriminate against minority unions in the course of conducting the bargaining process.
	Accordingly, the court reviewed whether there was a breach of the substantive and procedural aspects.
	This issue has been much debated, because there were few precedents, and as such, the court’s recent judgment is very meaningful.
	Background:
	Under the TULRAA, if a business has more than one union, the multiple unions must determine which one will be the representative bargaining union that will have exclusive rights to collectively bargain and lead any industrial action. The minority unions then have limited rights to participate in the bargaining process.
	The law provides exclusive rights to the representative bargaining union to ensure efficiency in the bargaining process, and consistency in union members’ working conditions.
	However, to minimize the risks to minority unions' rights, the TULRAA also imposes a duty of fair representation on the representative bargaining union. Accordingly, a representative bargaining union has a duty to bargain and conclude a collective bargaining agreement ("CBA") that is in the interests of other minority unions and/or their members.
	Further under the TULRAA, representative bargaining unions must not, without reasonable grounds, discriminate against other unions or its members who took part in the procedures to create a single bargaining channel.
	The Recent Case:
	Recently, the Korean Metal Workers' Union ("Metal Union") brought a lawsuit under TULRAA against eight representative bargaining unions, whose employers have Metal Union branches as minority unions.
	In the lawsuit, the Metal Union claimed that the representative bargaining unions breached their duties of fair representation.
	In the same action, the Metal Union also requested that the court invalidate the CBAs entered into with two employers involved, because the representative bargaining unions had failed to represent the minority unions fairly.
	Specifically, a breach of the duty of fair representation occurred where:
	Under the CBA, the representative bargaining union is the only principal body that can consult and make agreements with the employer, and/or review and make decisions.
	Under the CBA, the only union foundation day is the date the representative bargaining union was founded.
	The representative bargaining union refused to disclose bargaining meeting minutes and/or to hold a town hall meeting with minority unions.
	The representative bargaining union failed to respond to minority unions' CBA demands.
	The representative bargaining union failed to share any of its final CBA demands with the minority unions, and also failed to update the minority unions on how the bargaining was going.
	One representative bargaining union had only 11 more members than the total employees in the minority unions. However, 70% of the total permissible time-off for union activities was allocated to the representative union.
	Breach of the duty of fair representation was not found where:
	A negotiation update was provided in a newsletter that was made public and accessible to minority union members.
	A union vote on the tentative CBA was opened to the members of the representative bargaining union only in accordance with its bylaws.
	The representative bargaining union kept a member of the minority union out of collective bargaining.
	Other meaningful aspects of this decision:
	Finally, we believe this judgment is meaningful, since the court discussed many other debated issues involving the duty of fair representation for the first time. These clarifications include:
	The representative bargaining union is not a delegate of the other union[s]. Rather, the representative union conducts its own business, as it partakes in collective bargaining and enters into an agreement with the employer.
	Therefore, the representative bargaining union has an obligation to collect the opinions of minority unions. However, this obligation does not need to include the minority members in the voting process provided under its bylaws, or obtain their consent when finalizing the CBA.
	Even if a breach of the duty of fair representation is found, it does not automatically invalidate the CBA concluded by the breaching union.
	2 Case number 2014 GaHap 60526
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	If you have any questions regarding this article, please contact below:
	Weon Jung Kim wjkim@kimchang.com Sung Wook Jung sungwook.jung@kimchang.com
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	www.kimchang.com Labor & Employment Practice Group