I intend to interpret union shop agreement under plural unions and bargaining representative union system in this article. The constitution of Korea has secured the right to organization, collective bargaining, and concerted activities allowed only to workers under Article 33(1). Furthermore, the Trade Union and Labor Relations Adjustment Act(TULRAA) provides union shop agreement in Section 81(2). According to the TULRAA and the Supreme Court of Korea, however, union has to represent more than two thirds of employees within a bargaining unit to conclude the collective agreements including a union shop clause with an employer or its association(s).
In my opinion, the conclusions are as follows:
First, the requirement of ‘more than two thirds’ should not be interpreted as an absolute condition to insert a union shop clause in collective agreements between bargaining representative union and an employer or its association(s). If an employer agrees to the union shop clause with the majority union, it will not be an unfair labor practice by an employer because the requirement has only a presumptive effectiveness. So even a minority union is able to conclude an union shop agreement with an employer or its association(s).
Second, even though a number of its own union members does not satisfy the requirement, the union has the position to conclude a union shop agreement with an employer or its association(s) that enforces nonunion members to be the union member, when a bargaining representative union represents ‘more than two thirds’ of employees in a bargaining unit. However, it should be noted that the effect of the agreement does not come into force to a member who is to be a member of another union or newly established union.
Third, the TULRAA provides that an union shop clause has not effect to an nonunion member whom the union expelled. However, the Section 81(2) of the Act should be amended because the provision like this restricts an validity of the union shop clause extremely. Then I suggest that the union shop clause has to be effective to an employee who remains at the bargaining unit as a nonunion member, after he or she was expelled from the union of one party to the collective agreements.
Finally, I think that it is not against a Duty of Fair Representation in itself for a bargaining representative union to conclude a union shop clause with an employer or its association(s). In interpreting this problem, it should be considered that, according to the interpretation of the union shop agreement and the TULRAA, the agreement is no more fearful as a nonunion member has the right to choose union that he or she wants to join.