A World Without Labor Unions; in unions’ defense

http://www.japantimes.co.jp/text/fl20121023hs.html

Tuesday, Oct. 23, 2012
A world without labor unions

Re: “The Berlitz labor cartel” (Have Your Say, Sept. 25), a response to “With Berlitz beaten but not bowed, union fights on” by Patrick Budmar (Zeit Gist, Sept. 4):

The writer of this is someone who has withheld their name for good reason. Everything he or she wrote is spot off.

The suggestion that the union “chose to hold the company hostage rather than to leave and find a better offer” displays a misunderstanding of unions’ role in the workplace and in society.

A union is the only way for both parties (employers and employees) to negotiate on equal standing. If there were no unions, what would be the result?

We need not imagine. Let’s take a look at history, before unions fought for us. There was no minimum wage, no pension, no insurance, long hours, and brutal child labor was the norm. Those children were “free to work somewhere else,” as the author says.

It was the union movement that won us a minimum wage, pensions, health care, labor rights (including the right to strike) and abolished child labor. It is the right of the people to form unions and negotiate collectively with their employers. Their fight helps all of us, not just their coworkers.

The author calls it “the Berlitz labor cartel” but missed the fact that firms operate as cartels on many occasions. Consider price-fixing among automakers in Japan. NTN Corp. (www.japantimes.co.jp/text/nb20120518b2.html) was found guilty of price-fixing. Toshiba recently paid $30 million to settle a price-fixing suit in the U.S. This is cartel behavior, not collectively demanding a pay increase and open-ended employment.

All workers have the right to strike. If midway through a meal, the waiter took my food and asked me to pay more, I would inform him that it’s management that sets prices, not customers. Also, strikers do not get paid during the period they are striking, so the analogy is false.

If my waiter went on strike, I would happily miss my meal in order to join them in asking management to increase prices so the workers are better paid.

AMJID ALAM
Executive President, Tozen (Zenkoku Ippan Tokyo General Union) ALTs Union

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Berlitz court ruling unequivocal on basic right to strike

Language school firm will appeal decision

After hearing more than three years of testimony, the judge took only a minute to read the court’s verdict rejecting Berlitz Japan’s ¥110 million lawsuit against striking teachers and their union and reaffirming organized labor’s right to take industrial action.

According to the Feb. 27 Tokyo District Court ruling, “There is no reason to deny the legitimacy of the strike in its entirety and the details of its parts — the objective, the procedures, and the form of the strike. Therefore there can be no compensation claim against the defendant, either the union or the individuals. And therefore it is the judgement of this court that all claims are rejected.”

The battle of Berlitz began on Dec. 13, 2007, when teachers belonging to the Berlitz General Union Tokyo (Begunto) launched a strike against Berlitz Japan. The teachers, who had gone without an across-the-board raise for 16 years, struck for a 4.6 percent pay hike, a one-off one-month bonus and enrolment in Japan’s health insurance and pension system.

The strike grew into the largest sustained industrial action in the history of Japan’s language school industry. Over 11 months, teachers of English, Spanish and French struck 3,455 lessons in walkouts across Kanto.

In November 2008, Begunto filed an unfair labor practices suit at the Tokyo Labor Commission. The union alleges Berlitz Japan bargained in bad faith and illegally interfered with the strike by sending a letter to teachers telling them to stop walking out.

On Dec. 3, 2008, Berlitz Japan, claiming the strike to be illegal, sued for ¥110 million in damages. Named in the suit were the five teachers volunteering as Begunto executives, as well as two union officials: the president of the National Union of General Workers Tokyo Nambu, Yujiro Hiraga, and Louis Carlet, former NUGW case officer for Begunto and currently executive president of Zenkoku Ippan Tokyo General Union (Tozen).

Berlitz Japan claimed the union’s tactics of giving strike notice at the last minute and making it difficult for the company to bring in replacement teachers were illegal and designed to harm the company.

Begunto filed additional complaints against the company at the Tokyo Labor Commission in 2010 after Berlitz Japan dismissed two of the union executives named in the lawsuit. One teacher lost his job after he requested a leave of absence of more than a year in order to serve as a reservist in Afghanistan, the other after she requested an additional four months unpaid leave to recover from late-stage breast cancer.

Yumiko Akutsu, one of the union’s lawyers, told supporters after the verdict that the win was “a complete victory — on not one point did we lose, not one single point.”

Reading from the court’s ruling, she explained that the court found the objective of the strike to be legitimate because “the strike’s purpose was to realize the union demands they had clearly stated to management in 2007 and 2008.”

Because teachers had different work schedules at different language centers and often didn’t receive their schedules until 7 p.m. the night before working, the court also rejected the company’s claims that the last-minute notice given by teachers before striking lessons was illegal. “Strike notice just before the strike cannot be considered illegitimate”, the court ruled.

After the win, Carlet stressed the significance of the victory as an important defense of the right to take industrial action in Japan. “This is a very important victory for the right to strike,” he told union members. “I think people often forget how important the right to strike is. The right to strike was not granted us by governments or by management. Workers fought in many countries around the world and gave their blood, sweat and tears to win this right to strike.”

Hiraga also emphasized the significance of the win, telling union members, “I think what the verdict represents is that the company sued you for damages as a way to weaken the union and as an illegal union-busting tactic, and it was denied by the courts.” Calling it a triumph not only for Begunto and Nambu, Hiraga told supporters, “This is a victory for the entire labor movement in Japan.”

According to Akutsu, a victory by the company “would have had a huge impact and a huge chilling effect on people’s willingness to strike.”

Gerald McAlinn, a professor at Keio University Law School, said that because Article 28 of the Constitution guarantees the right of workers to organize and bargain collectively, “Any decision by the court to the contrary would have been very strange and contrary to the fundamental rights of all workers in Japan.”

McAlinn emphasized three reasons for the importance of the case. First, “A ruling in favor of the company would have opened up an avenue for employers to circumvent the balance of power established by the labor union law.” He added that allowing employers to sue striking workers “would be a powerful weapon that could easily be used to chill the exercise of constitutional rights by workers all across Japan.”

The court’s ruling is also significant because of the somewhat unusual nature of the strike action. Unlike in a typical strike, where workers walk out en masse and stay out together, Berlitz instructors sometimes taught and sometimes downed chalk. Individual Begunto members struck individual classes in different language centers at different times, handing their strike notices over to management only a few minutes before the scheduled start of the lesson. This minimized the company’s ability to bring in replacement teachers and break the strike. According to McAlinn, “This case seems to legitimize the practice of refusing to work other than via the traditional all-out-together picket line strike.”

Finally, McAlinn believes the verdict matters because it was mostly foreign teachers in the dock. “The nationality of the defendants should not matter of course, but this decision makes this point clear,” he said.

The triumphant union executive members stress the need to move past legal confrontations and get back to negotiations with management. Hector Coke, Begunto president at the time of the strike and one of the teachers named in the lawsuit, told union members and supporters in a meeting after the verdict that it’s time to start negotiating and “build a better relationship with management. We should not be arrogant in the fact we won this case.”

Paul Kennedy, current Begunto president, echoed this point at a press conference after the verdict. “We look from this point forward to be able to negotiate with Berlitz Japan,” he told reporters. “This is a new start for both sides.”

However, Berlitz Japan didn’t wait long before deciding to continue the legal skirmish. Kennedy says he received notice that Berlitz Japan will appeal the verdict on Friday.

Michael Mullen, Berlitz Japan’s senior human resources manager, declined to comment on the case.

Berlitz Japan doesn’t necessarily have to submit new evidence in their appeal to the high court. “In my experience, the high court is not shy about reaching a decision different from that at the district court level if the judges see the facts or law differently,” said McAlinn. “Having said that, I would be surprised if the high court were to reach a different decision in this case.”

Meanwhile, Begunto and Berlitz Japan continue their legal battle at the Tokyo Labor Commission, buoyed by the district court victory.

“With this verdict,” says Carlet, “we will be in a very good position at the labor commission because the strikes were legal and that will make all the difference.”

However, legal experts don’t all share Carlet’s confidence. According to McAlinn, the verdict “shouldn’t have a direct impact on the union claims at the Tokyo Labor Commission” because “the two actions are governed by different laws and legal standards.”

Tadashi Hanami, former chair of the Central Labor Relations Commission and professor emeritus at Sophia University, agrees, explaining that the Tokyo Labor Commission “may take this verdict in consideration if it chooses so, but we can hardly predict whether it will do so or not because it’s not unusual that courts and commissions take completely different opinions.”

Union members also now face a large legal bill. “The general principle under Japanese law is for each side to pay their own court costs,” says McAlinn. Union members are now discussing ways to recover court costs from Berlitz Japan, says Kennedy.

http://www.japantimes.co.jp/text/fl20120306a1.html

Berlitz loses suit over union teacher strikes

The Tokyo District Court on Monday rejected a lawsuit filed by Berlitz Japan Inc. that sought damages from union executives and its teachers for waging strikes and causing substantial damage to the company.

Presiding Judge Hiroshi Watanabe sided with the labor union and its workers, saying acts by the defendants “do not comprise any illegality.”

“There is no reason to deny the legitimacy of the strikes,” including their purpose or process, the court ruled.

Berlitz, the plaintiff, filed the lawsuit in December 2008. The language school chain claimed executives of the National Union of General Workers Tokyo Nambu, and affiliate Berlitz General Union Tokyo (Begunto) — particularly five activist, non-Japanese Berlitz teachers — conducted illegal strikes for 11 months beginning in December 2007.

According to the plaintiffs, union activities including coordinated strikes and delay of written notice of strikes “put the company’s existence itself in peril.” The plaintiffs claimed that acts by the defendants affected 3,455 classes during the span and caused some of its students to leave the school.

The company had sought compensation of ¥110 million each from Nambu, Begunto, an executive from each group and the five Berlitz teachers. The strikes involved more than 100 unionized foreign teachers of the chain.

The defendants meanwhile had said their strikes were within their rights, after Berlitz in 2007 rejected their requests, including a demand for a 4.6 percent raise and a bonus payment equal to a month’s pay.

According to the defendants, teachers at Berlitz hadn’t won an across-the-board raise for over 16 years. They claimed the lawsuit violated their right to union activities and collective action.

While similar civil cases have often been settled out of court, the case saw an extended period of negotiations that ultimately ended without an agreement.

Defense lawyer Yukiko Akutsu, who criticized the plaintiffs for causing the case to drag on for over three years, called Monday’s ruling “a complete victory” for her clients.

While touching on the possibility that the plaintiffs may file an appeal, Akutsu told a meeting following the ruling that the court “recognized that each of the strikes was legitimate.”

http://www.japantimes.co.jp/text/nb20120227x2.html

原発事故:戻らぬ中国人労働者 縫製業は減産も

東日本大震災と東京電力・福島第1原子力発電所事故の影響で、日本国内で働いていた外国人労働者が大量に国外流出した影響が深刻化している。原発事故後に一時、東日本や日本からの避難勧告を出した国々は勧告を解除し、欧米系の外国人は徐々に戻りつつあるが、中国など近隣のアジア系外国人の戻りは鈍いままだ。

Read more

Business English revives schools

The recent corporate trend of making English the “official language” within companies has given a tailwind to the formerly faltering English language school business.

As a number of companies aim to establish or maintain a global presence, English language schools are working to develop educational programs more practical than those offered by their rivals for businesspeople who need to use English at work.

Such a move came after companies, including online shopping mall operator Rakuten, Inc. and Fast Retailing Co., the operator of casual clothing chain Uniqlo, required their employees to use English as their official in-house language.

The English education-related industry has striven to capitalize on what it views as a golden opportunity.

During the April-June period, Berlitz Japan, Inc., an operator of foreign language schools, saw the number of its corporate customers and individual regular students who are company employees jump 50 percent from a year earlier. Its summer short program also has attracted about 2-1/2 times as many students as in the previous year.

Another English school operator, Gaba Corp., enjoyed a similar boost, with corporate contracts up 12 percent year on year in the first half of 2010.

According to private research firm Yano Research Institute, the market for foreign language business shrank about 5.8 percent to 502.6 billion yen in fiscal 2009, forcing Geos Corp., a major industry player, to file for bankruptcy.

With the economy recovering, however, the nation’s corporate environment has changed. With a growing number of companies aiming to expand their overseas operations, particularity in Asia, they are racing to secure people with a good command of English.

Panasonic Corp. is set to hire about 80 percent of its new employees who are fresh out of school for next fiscal year overseas. Half of the 600 people that Fast Retailing plans to employ in fiscal 2011 are also expected to be non-Japanese. Such moves have boosted the popularity of business English programs.

A 35-year-old company employee who studies at an English language school in Shibuya Ward, Tokyo, said, “As we’ve come to communicate with overseas clients through e-mail and video conferences on a daily basis, I’m worried that I might slow down business operations because of my poor English.”

“Companies like Rakuten could fuel ‘English fever,'” a source familiar with the industry said.

http://www.yomiuri.co.jp/dy/business/T100818004161.htm

Talks drag on, teachers fired in Berlitz case

After 20 months of legal wrangling, neither side has managed to snag a win in Berlitz Japan‘s ¥110 million lawsuit against five teachers and their union, Begunto.

On the recommendation of the case’s lead judge, the company and union have been in court-mediated reconciliation talks since December. The agreement to enter the talks came after a year of court hearings into the suit.

“The vast, vast majority of cases (in Japan) are decided out of court, and that’s the way the whole thing is designed,” explains lawyer Timothy Langley, president of Langley Enterprise K.K., a consultancy specializing in labor issues. “It works even though it’s frustrating; people eventually define the solution themselves.”

Louis Carlet, one of the union officials being sued, describes progress at the once-a-month, 30-minute negotiating sessions as “glacially slow.”

It will be up to the judge to decide how long to let this process play out, says Tadashi Hanami, professor emeritus at Sophia University and former chair of the Central Labor Relations Commission. “Talks for the purpose of conciliatory settlement will continue as long as the judge finds there is a possibility for settlement by compromise.”

The current focus of negotiations is the amount of notice union members should give the company ahead of industrial action. Initially, Berlitz Japan offered to drop their lawsuit if teachers gave a week’s notice before striking. Begunto proposed five minutes. Since teachers typically only learn the next day’s schedule the night before, the judge instructed the company to come up with a better offer.

Asked how much notice unions legally have to give before striking, Langley replied, “None. Zero. That’s one of the beauties of a strike: You just strike.”

In the latest round of talks held Thursday, Berlitz Japan requested contract teachers give strike notification by 3 p.m. the day before, and per-lesson teachers by 5 p.m. Begunto pointed out to the judge that per-lesson teachers don’t receive their schedule until 6 p.m. the day before. Union executives have taken the offer back to members for consideration.

The battle between Berlitz Japan and Begunto began with a strike launched Dec. 13, 2007, as Berlitz Japan and its parent company, Benesse Corp., were enjoying record profits. Teachers, who had gone without an across-the-board raise for 16 years, struck for a 4.6-percent pay hike and a one-month bonus. The action grew into the largest sustained strike in the history of Japan’s language school industry, with more than 100 English, Spanish and French teachers participating in walkouts across Kanto.

On Dec. 3, 2008, Berlitz Japan claimed the strike was illegal and sued for a total of ¥110 million in damages. Named in the suit were the five teachers volunteering as Begunto executives, as well as two union officials: the president of the National Union of General Workers Tokyo Nambu, Yujiro Hiraga , and Carlet, former NUGW case officer for Begunto and currently executive president of Zenkoku Ippan Tokyo General Union (Tozen).

While believing their strike to be legal, Begunto decided to suspend industrial action until the lawsuit is settled rather than risk the dismissal of union members. However, the company fired two of the teachers it’s suing anyway.

One, who didn’t want to be named, received word of his dismissal just before shipping out to Afghanistan as a U.S. Army reservist at the end of July 2009. Berlitz Japan had allowed the teacher to take unpaid leave for military duty several times before the strike. But after being the only teacher at his Yokohama branch to walk out, he began getting complaints from students.

According to Begunto members, after being ordered to deploy to Afghanistan, Berlitz Japan told the teacher he could take a leave of absence of less than a year, and that he’d have to quit if he needed more than a year. Two days before he left for Afghanistan the company fired him. According to the dismissal letter, his performance was subpar and was hurting the company’s image.

“The union believes strongly that the teacher’s dismissal was because he was the only striker at Yokohama,” says Carlet.

Another of the teachers named in the suit, Catherine Campbell, was fired earlier this month after taking too long to recover from late-stage breast cancer cancer. In June 2009, Campbell took a year of unpaid leave to undergo chemotherapy and radiation treatment. Because Berlitz Japan failed to enroll Campbell in the shakai hoken health insurance scheme, she was unable to receive the two-thirds wage coverage it provides and had to live with her parents in Canada during treatment. The company denied Campbell’s request to extend her leave from June to Sept. 2010 and fired her for failing to return to work.

Berlitz Japan work rules allow for leave-of-absence extensions where the company deems it necessary.

“If cancer is not such a case, what would be?” Campbell asks. “On one hand, I’m lucky to be alive and healthy enough to even want to go back to work, so everything else pales in comparison,” she explained. “But on the other, the company’s decision does seem hard to understand. The leave is unpaid, and I don’t receive any health benefits, so it wouldn’t cost Berlitz anything to keep me on; and for me, it’s that much harder to restart my life without a job.”

Michael Mullen, Berlitz Japan senior human resources manager, declined to comment for this article, writing in an e-mail, “At the current time the company does not want to make any comments due to the ongoing legal dispute.”

The union is fighting both dismissals at the Tokyo Labor Commission. The panel is also hearing an unfair labor practices suit filed by Begunto that charges Berlitz Japan bargained in bad faith and illegally interfered with the strike by sending a letter to teachers telling them the strike was illegal and to stop walking out.

The next round of reconciliation talks and Tokyo Labor Commission hearing are both scheduled for Sept. 6.

http://search.japantimes.co.jp/cgi-bin/fl20100727a1.html