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Tuesday, July 17, 2012
LIFELINES: LABOR PAINS
Courts back workers' rock-solid right to strike
By HIFUMI OKUNUKI
"Sensei, Japan is such a safe country because there are no strikes. Right?" A student at the university where I teach blindsided me with this remark the other day.
The vast majority of Japanese under 30 have never even witnessed industrial action and imagine a strike as something equivalent to a riot. As a teacher of labor law, students' fresh, innocent faces when talk turns to labor disputes leaves me scratching my head. I thought long and hard about what to say to the student who made the above quip.
Striking is the main dispute tool for labor unions to realize worker demands. Article 28 of Japan's Constitution guarantees the right to "workers' collective action." This means strikes. Although dispute action can cause enormous damage to employers and third parties, the Constitution protects such action as a fundamental human right.
The drafters' thinking was that most workers find themselves in a vulnerable and submissive position vis-a-vis management and only by guaranteeing the right to strike do they have any say in setting working conditions or any chance to improve their economic position.
All attempts to restrict the right to strike have been struck down, so to speak, as unconstitutional. The Trade Union Law states clearly that legitimate strikes are "exempt from all civil and criminal liability." So what is a "legitimate strike?"
Few courts have even taken up the matter because the right is so well protected that, barring violence or malicious threat, management has little hope of winning damages. So let me first introduce a rare "illegal strike" verdict: the Shosen Case of May 6, 2002, in Tokyo District Court.
This bookstore sued its labor union, claiming its strike was illegal. The union struck and picketed over shuntō (spring labor offensive) demands, but to no avail. They plastered the entrance doors, show windows and exterior of the shop with stickers and posters announcing the strike, blocked all entrances with picketers, occupied and blocked the sales floor and used a megaphone to harass any potential customer daring to enter, screaming insults such as "bakayaro!" ("idiot!"). Some union members played mah-jongg at the entrance while others surrounded and dragged picket-line-crossing customers out of the store.
The retailer had enough nonunion staff to sell books but couldn't because the union was creating an atmosphere less than conducive to business.
The courts judged that the above behavior went beyond legitimate peaceful methods of persuasion and ordered the union to pay ¥97.71 million in damages to compensate for a plunge in sales and other losses. The courts also held individual union members and supporters responsible.
This verdict has been denounced by scholars for holding individuals responsible and for awarding the bookstore too much. Critics believed the ruling would have a chilling effect on union activism in general.
On the other side of the coin, one large company recently lost its claim of ¥110 million in damages against its union and union executives (see "Berlitz Loses Suit Over Union Teacher Strikes," Feb. 28, The Japan Times).
Over 100 Berlitz Japan teachers struck over 3,000 lessons between December 2007 and November 2008 in order to win a 4.6-percent pay hike and one-off one-month bonus.
The language school claimed the strikes were illegal mainly because the union gave little notice of the impending strikes. While case law stipulates that prior notice must be given for a strike, it does not set a minimum time. Berlitz teachers often gave less than five minutes' notice. This probably created a headache for management, because they had less time to send replacement teachers to cover the struck classes.
The school also claimed that a union executive, Louis Carlet (full disclosure: Carlet is the current president of Tozen Union), had admitted to wanting to damage the company in a Sept. 30, 2008, Zeit Gist column in The Japan Times ("Berlitz Strike Grows Despite Naysayers").
Tokyo District Court dismissed the entire case in its Feb. 27, 2012, verdict, reaffirming the powerful guarantee of the right to strike in Japan. The court rejected the company's contention that the union was striking to destroy the company and agreed with the union's assertion that the only purpose of the strikes was to realize its demands.
Management appealed the verdict and Tokyo High Court is currently overseeing reconciliation talks between the two sides.
The next time I meet my student, I intend to say: "A strike is not a riot. It is a precious right by which workers can realize demands by legally refusing to work. Without the power of strikes, management will just worsen working conditions and violate worker rights. Exercising the right to strike is the only way to reverse that trend. You can measure worker consciousness in a given country by how well workers can exercise the right to strike."
Hifumi Okunuki teaches constitutional and labor law at Daito Bunka University and Jissen Women's University, among others. She also serves as paralegal for Zenkoku Ippan Tokyo General Union (Tozen). On the third Tuesday of each month, Hifumi discusses a famous case in Japan's legal history to illustrate an important principle in labor law. Send comments on this issue and story ideas to email@example.com