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학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
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Author has been studding on the Strikes of the America, Japan, Korea respectively. It is final ends that I find out the differences of the legal theories of the Strike between those countries. This article is one of the Studies scheduled.
Conclusions, therefore those conclusions are only provisional, are as follows:
First, a offensive lockout is permissible. The Supreme Court of U.S.A. held that a offensive lockout is also able to be lawful under all circumstances, and changed a traditional NLRB’s decision that only a defensive lockout is justified in principle. According to the Court, in case of the Whipsaw Strike, an another employer who is not a party to the strike can lockout its employees. However, the employer could not lockout against no-lockout clause of the collective agreement.
Second, even after the lockout, an employment concerned can operates continually its business through using temporary replacement workers. Where an employer has only antiunion motivation in using replacement workers, it should be an unfair labor practice by the employer. According to the Court of Appeal, furthermore, the employer could also contract its business locked out. It is, however, arguable that whether he or she uses permanent replacement workers or not for lockout. Though the Court of Appeal takes a position against it, because the NLRB does for it.
Third, the parties to the collective agreement must take a certain notice obligation by the NLRA Sec.8(d) to renew the valid agreement. Where an employer lockouts against the clause, it should be unlawful, and it also would be an unfair labor practice.
Fourth, a Court of Appeal has strongly find a partial lockout unlawful. On the contrary, the NLRB has interpreted it as lawful, in this point of view there is also arguable with respect to the justification of the lockout in U.S.A.
Fifth, the locked out employees would be protected by an unemployment compensation system under the state law level such as the California State, the Illinois State, the New Jersey State etc.
Finally the Clayton Antitrust Act of 1914 exempts labor union from the antitrust responsibility. It is generally called ’statutory labor exemption’. The Supreme Court has here established ’nonstatutory labor exemption’ to protect the parties, especially weighing a party of the employer, to the collective bargaining.
Conclusions, therefore those conclusions are only provisional, are as follows:
First, a offensive lockout is permissible. The Supreme Court of U.S.A. held that a offensive lockout is also able to be lawful under all circumstances, and changed a traditional NLRB’s decision that only a defensive lockout is justified in principle. According to the Court, in case of the Whipsaw Strike, an another employer who is not a party to the strike can lockout its employees. However, the employer could not lockout against no-lockout clause of the collective agreement.
Second, even after the lockout, an employment concerned can operates continually its business through using temporary replacement workers. Where an employer has only antiunion motivation in using replacement workers, it should be an unfair labor practice by the employer. According to the Court of Appeal, furthermore, the employer could also contract its business locked out. It is, however, arguable that whether he or she uses permanent replacement workers or not for lockout. Though the Court of Appeal takes a position against it, because the NLRB does for it.
Third, the parties to the collective agreement must take a certain notice obligation by the NLRA Sec.8(d) to renew the valid agreement. Where an employer lockouts against the clause, it should be unlawful, and it also would be an unfair labor practice.
Fourth, a Court of Appeal has strongly find a partial lockout unlawful. On the contrary, the NLRB has interpreted it as lawful, in this point of view there is also arguable with respect to the justification of the lockout in U.S.A.
Fifth, the locked out employees would be protected by an unemployment compensation system under the state law level such as the California State, the Illinois State, the New Jersey State etc.
Finally the Clayton Antitrust Act of 1914 exempts labor union from the antitrust responsibility. It is generally called ’statutory labor exemption’. The Supreme Court has here established ’nonstatutory labor exemption’ to protect the parties, especially weighing a party of the employer, to the collective bargaining.
목차
Ⅰ. 서설
Ⅱ. 직장폐쇄의 정당성 판단기준
Ⅲ. 직장폐쇄와 대체근로
Ⅳ. 직장폐쇄와 구제 및 책임
Ⅴ. 결론
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