Some of the controversies over the foreign company’s strike was whether branch managers who have higher status than frontline staff can join . . . → Read More: Can branch managers join a labor union?]]> More than 100 days have passed since the strike at Allianz Life Insurance started. Last week, management of the company fired 87 branch managers for participating in illegal strike when they are supposed to side with management as senior managers.

Some of the controversies over the foreign company’s strike was whether branch managers who have higher status than frontline staff can join a labor union and whether the labor union with such managers as members is still a lawful union.

1. Can branch managers join a labor union?

Laws relevant to this issue can be found in the following text of the Trade Union and Labor Relations Adjustment Act (TULRAA) of Korea.

Article 2 (Definitions)
For the purpose of this Act, the definitions of terms shall be as follows: 

2. The term “employer” means a business owner, a person responsible for the management of a business or a person who acts on behalf of a business owner with regard to matters concerning workers in the business;

4. ….. an organization shall not be regarded as a trade union in the cases falling in any of the following categories:
(a)In case where an employer or other persons who always act in the interest of the employer are allowed to join it.

The problem with this definition of a person who is deemed as an employer and as such should not join a union is that it is vague enough to create confusion.

The Ministry of Labor does provide an example of ”a person responsible for the management of a business” such as chiefs of factories, departments, branches, and offices. However, as shown in the case of Allianz, the persons concerned can always say that they are not “responsible for the management of a business” but only following directions of top management, regardless of the truth of such statement.

When compared to the text of the National Labor Relations Act of the United States, the vagueness of the TULRAA is more visible.  According to the American act, a category of workers called supervisors cannot join a labor union and they are;

“Any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. (29 USC 152 (11))”

Actually, rulings made by Korean courts over eligibility of the so-called “employers”  for union membership have similar wordings as the text of the NLRA. But it would be much better for labor and management if there is a clear divide in written law over who can sit on which side of the bargaining table.. or maybe I am wrong. Labor unions may not want to see some of their potential members labelled away as employers.

2. Can a union with  ”employers as defined by the TULRAA” as members still be lawful?

The answer to the question is two-fold. Legally “NO”, actually “Quite possible”.

An often quoted court ruling over the question say that even if there are “employers” (e.g. senior executives, factory chiefs, branch managers) among union members, the union in question does not automatically lose its legitimacy as long as inclusion of such persons does not undermine independence of the union.

What the court ruling means is that, unless there is a hard evidence for independence of a union undermined by the presence of “employers” within the union, there is always a possibility for a labor union that has executives, directors, managers as union members.

So what should an employer do about this, if he/she has a such problem in one’s company?

If a labor union is still at the infancy stage, the best would be to check upon the union bylaw, and ask the labor ministry to order the union to correct the eligibility conditions so that any workers that fall under the “employer” category should be removed.

If a labor union has been around for a while, and if there is a conflict between labor and management over the presence of “employers” in the union?  This is what happened in Allianz Korea, and I guess they must have consulted some of the best legal brains in Korea to come up with a good way to handle the issue.

What did they do? They ordered the managers to withdraw from the union citing their status. When managers refused to do so, managment escalated the level of discipline step by step, and finally fired them.

Of course, I am not saying that the solution is good for the whole situation. We never know what the massive dismissal may trigger in the future.