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Tuesday, April 28, 2009

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CHRIS MacKENZIE ILLUSTRATION

THE ZEIT GIST

Berlitz blitz against union bogs down


By JAMES McCROSTIE

After the second court hearing on April 20 in Berlitz Japan's lawsuit against unionized teachers, the legal fight seems bogged down in a form of trench warfare.

In December, after a year of strike action by over 100 teachers, the company filed a lawsuit against seven union members. Named in the suit are five Berlitz teachers who volunteer as Berlitz General Union Tokyo (Begunto) executives and two officials from the National Union of General Workers Tokyo Nambu: President Yujiro Hiraga and Louis Carlet, the deputy general secretary and Begunto case officer. Claiming the Begunto strike is illegal and meant to damage the company, Berlitz sued the defendants for ¥110 million each.

Ever since launching their legal battle, lawyers for Berlitz have appeared reluctant to go over the top. After gaining an extension in January for more time to prepare evidence and legal arguments, Berlitz lawyers still submitted their documents 10 days past the end-of-March deadline set by the judge.

Berlitz's evidence consisted primarily of 1,000 forms used by the union to inform the company which classes would be struck. Berlitz's lawyers claim that since union officials submitted them shortly before the lessons were struck, the union intended for the strike to damage the company.

Berlitz's strategy appears to lack legal precedent. When asked about similar cases based on the notice given before taking strike action, Tadashi Hanami, former chair of the Central Labor Relations Commission and professor emeritus at Sophia University, said, "As far as I know there is no such case." When companies sue for damages from illegal strikes, explained Hanami, the claim generally stems from union "threats or violent activities."

Catherine Campbell, one of the teachers being sued, denies any attempt to harm the source of her paycheck. "That was not our intent. Our intent was to win our demands."

Suits against union members for illegal strikes are also rare. "It's very unusual for a company to sue striking workers on the basis that a strike is illegal," says professor Gerald McAlinn of Keio Law School. "Article 28 of the Constitution guarantees that workers have the right to organize and to bargain and act collectively. Naturally, this includes the right to strike."

Because of the rarity of companies suing striking workers, a successful Berlitz lawsuit against its teachers would likely have ramifications for Japanese industrial relations beyond the language school industry. "This is surely going to be an important case," said Hideyuki Morito, a professor of law at Sophia University.

The second hearing in the suit lasted a matter of minutes. One judge complained that after reading the company's recently filed documents he still couldn't understand their reasoning for why the strike was illegal. He told Berlitz's lawyers to provide a concise and understandable summary of their arguments before the next hearing. Looking at the crowd of union supporters in the courtroom, the judge added that the summary was necessary not only to help him understand the company's position, but also for the benefit of all those coming to hear the case.

Campbell expressed disappointment at the latest delay. "It's the dragging-on that's very frustrating. They sued in December and you'd think they would have their evidence prepared. In this case they sued and then prepared their evidence. Not only that, but they took an enormous amount of time and still haven't finished it all."

Union rep Carlet added, "It's outrageous that the company has submitted almost nothing in terms of evidence that the strike is illegal. They haven't specified where the damages are coming from. All they did was sue, and they haven't come out with anything."

Representatives from Berlitz Japan declined to comment on either the lawsuit or strike. Company representatives were also unwilling to provide a figure for the number of Berlitz employees working in the Kanto area, and union representatives were equally reluctant to reveal the number of Begunto members. However, during the strike, 32 of 46 Kanto-area schools have experienced walkouts by teachers.

In the afternoon following the trial, Begunto members launched a counterattack at a scheduled Tokyo Labor Relations Commission hearing. In November, Begunto filed an unfair labor practices complaint with the Tokyo Labor Commission. The union alleges that Berlitz is negotiating in bad faith during collective bargaining and illegally interfered with the strike by sending letters to teachers that month telling them the strike was illegal and that they must stop walking out.

During questioning by commissioners into the current state of negotiations, union reps reported that Berlitz had made threats, later retracted, to withhold performance- based raises from union members.

Begunto members also pointed out that, in a departure from established practice at the company, since Feb. 2009 lawyers hired by Berlitz had taken over from managers during collective bargaining sessions with unionized teachers. This puts the Berlitz teachers in the unusual — and uncomfortable — position of sitting across the bargaining table from the same lawyers suing them in court for ¥770 million. Having lawyers take over from management in collective bargaining sessions, says Hanami, "is not so usual, but not unprecedented."

According to teachers, the time required to translate everything between Japanese and English cuts the period for actual negotiations by half. Poor communication between Berlitz managers and their lawyers also means the company's legal team doesn't fully understand issues such as the Berlitz pay scales and pension system, which further slows the proceedings.

The last collective bargaining session between Berlitz and Begunto took place March 13. The company rejected the entire list of teachers' demands, which included a 4.6-percent raise in base pay, the retraction of the warning letter sent to striking teachers, the introduction of a bonus system, and the disclosure of documents related to Berlitz's financial health.

Asked about the wisdom of continuing demands for a pay raise in the midst of a recession, Campbell said the union is fighting to "recoup some of the damage from contracts introduced in 2005." An increase in the number of required lessons taught from 35 to 40 a week with no increase in the ¥250,000-a-month starting salary effectively cut the per-lesson pay for new teachers hired after 2005 by about 10 percent. With about one-third of Berlitz teachers working on a no-work-no-pay, per-lesson basis, "the recession hits teachers far harder than it hits the company," says Campbell.

"Our position has always been that we are open to counter-offers from management; it is unfortunate that the best counter-offer they came up with was less than 1 percent."

Along with a lack of progress in collective bargaining sessions, it has been all quiet on the industrial action front. After Berlitz sent the Nov. 10 letters to striking teachers, the union decided to take a break from its rotating walkouts.

Campbell explains, "The union had a meeting after that and people decided we still had the right to strike and our strike was legal. But practically speaking, we had to face the risk that they would go ahead and fire somebody illegally. Then we would have to be fighting an unfair dismissal on top of fighting the unfair labor practices, so we decided to fight the unfair labor practices case first and hold off on the strike for a while. But we haven't given up on it completely."

Both sides appear prepared for a lengthy legal battle. After the first January court date for Berlitz's lawsuit, Ken Yoshida, one of the union's lawyers, said the company's legal team was "stalling," and that it would be a long, drawn-out court fight. So far, Yoshida's prediction seems to be proving accurate. Berlitz lawyers have been repeatedly late submitting the required documents for both their suit against striking teachers and the Labor Commission hearings. This leads to further delays because union lawyers don't have time to prepare a proper response.

According to Timothy Langley, a lawyer and president of Langley Enterprise K.K., a consultancy specializing in labor issues, such delays by company lawyers are "no big deal, the court is very lenient." He speculates that "it could be their litigation strategy."

"Who can survive this fight the longest? It isn't the employees," said Langley. "The company can survive this fight for a long time. It's one of the costs of doing business. The employees are doing it because it's their livelihood. It wears on the employees much more than on the company."

Sophia University's Hanami points out that with no rules equivalent to American contempt of court orders in Japan, there are no direct penalties for delaying tactics. "However, judges always have discretion to admit or to refuse any delayed provision of arguments and evidence by both parties." Furthermore, since foot-dragging by lawyers might sway the judge's opinion against them, "such tactics are not advisable."

The next Tokyo Labor Relations Commission hearing is scheduled for June 8; the next court hearing is July 6.

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