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  • Japan Times Zeit Gist on Berlitz’s lawsuit against unions for “strike damage”

    Posted by Dr. ARUDOU, Debito on February 17th, 2009

    Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japan

    Hi Blog.  Here’s a landmark case, dismissed by activists as a “frivolous claim”, which will affect unions profoundly in future if the right to strike (a right, as the article notes, which is guaranteed by the Japanese Constitution Article 28 under organization and collective bargaining) is not held sacrosanct by a Japanese court.

    Language school Berlitz, shortly after a request was filed with the authorities for an investigation of its employment practices, sued Begunto labor union for damages due to strikes.  Although the article stops short of saying the epiphany-inducing words “union busting activities”, Berlitz below seems to playing for time in court, not even offering their reasons for their lawsuit by the appointed court date.  

    Keep an eye on this case, readers. Arudou Debito in Sapporo

    Next Labor Commission Begunto hearing date Feb 20 in Tokyo.  Directions from the union:

    Berlitz Labor Commission Hearing Number 2    Friday, Feb. 20, at 1:30pm at Tokyo Labor Commission
     
    Take Oedo Line to Tochomae Station, exit A3, up two sets of escalators, pass passport office, up stairs, take elevator bank H up to 34th floor and find “roh” (labor) room for Life Communications (company name).

      Let’s show the commission how much support our Berlitz sisters and brothers continue to have in their fight for the right to strike.  Their strike began in Dec. 2007 for a 4.6% base-pay hike and a one-month bonus.  The strike escalated in autumn of 2008 and management rather than yield to the demand decided to cheat — threatening strikers and suing all the executives for 110 million yen each.  Come on out and support Begunto (Berlitz General Union Tokyo).

    News photo
    Van hailing: Members of the Berlitz General Union Tokyo (Begunto) and the National Union of General Workers (NUGW) Tokyo Nambu make their voices heard atop a sound truck outside the Berlitz school in Yurakucho, Tokyo. COURTESY OF BEGUNTO

    THE ZEIT GIST

    Berlitz launches legal blitz against striking instructors

    By JAMES McCROSTIE

    The Japan Times: Tuesday, Feb. 17, 2009

    http://search.japantimes.co.jp/cgi-bin/fl20090217zg.html
    It has been 14 months since members of the Berlitz General Union Tokyo (Begunto) first downed chalk and launched rotating strikes against the language school Berlitz Japan.

    The strike has grown into the longest and largest sustained strike by language teachers in Japan. While about 500 Nova teachers struck during that firm’s collapse in 2007, the action only lasted a day.

    The dispute entered a new phase on Dec. 3 when, after nearly a year of strike action by union members, Berlitz Japan served notice they were suing the five teachers who serve as volunteer Begunto executives, as well as two officials of the National Union of General Workers (NUGW) Tokyo Nambu: President Yujiro Hiraga and Louis Carlet, the deputy general secretary and case officer for Begunto. The suit also names NUGW Tokyo Nambu and its Begunto branch as defendants.

    Claiming the strike is illegal and that the union is trying to damage the company, Berlitz Japan is suing for ¥110 million in damages from each defendant.

    “I first heard officially about the suit when a subpoena was delivered to my door in early December,” recalls Catherine Campbell, Begunto Vice President. “It was a shock to see myself and the others named individually as defendants.”

    “The amount of money is so large that it didn’t seem real to me,” says Campbell. “It’s obvious that no English teacher has ¥110 million lying around, so I find it hard to believe that financial compensation is the real objective of their suit. The real objective is to intimidate and weaken the union.”

    For Carlet, the suit also came as a surprise. “We were shocked because we make every effort to follow all Japan’s laws. We also felt frustrated that rather than concede the union’s strength and make meaningful concessions, Berlitz Japan has decided to spend a lot of money to sue us based on a frivolous claim that the strike is illegal.”

    The company’s resort to the courts is unusual, explains Takashi Araki, a law professor at the University of Tokyo. “It’s not often that Japanese employers sue striking workers for illegal actions. An employer must bear the burden to prove the illegality of the strike, the amount of damages and causal relationship between the illegal strike and the damages. It’s not easy.”

    On precedents for this kind of action, Timothy Langley, an American lawyer working in Tokyo, called the suits “very unusual,” adding, “but once again, it’s a tactic.” Langley predicted that like the vast majority of civil court cases in Japan, the Berlitz dispute would be settled out of court through negotiation.

    The Begunto strike began on Dec. 13, 2007. Seeking the first across-the-board pay raise for Berlitz Japan teachers in 16 years, the union had a list of nine demands, including a 4.6-percent raise for all employees (teachers and staff), a one-time bonus equal to a month’s pay, and enrollment in Japan’s health insurance and pension system.

    Inequalities between old and new teachers influenced the decision to strike. According to Begunto’s Web site, the number of lessons taught has increased from 30 per week for teachers hired in the early 1990s to 40 lessons a week for teachers hired after 2005, with no corresponding increase in the ¥250,000-a-month starting salary.

    “The strike was an inevitable result of the new contracts introduced in 2005,” says Campbell. “Berlitz has had a history of slowly reducing conditions for new hires every once in a while, and up until now the changes have been small enough and incremental enough not to inspire a major backlash. This time they simply went too far, and created a pool of new hires working alongside teachers on older contracts who had obviously better conditions; teachers old and new felt the unfairness of this.”

    The financial health of Benesse Corp., Berlitz Japan’s parent company, also influenced the timing of the strike. In their annual report for the financial year ending March 31, 2008, Benesse recorded their highest-ever earnings. Operating income grew 11.4 percent and Berlitz International Inc. achieved its best result since being bought by Benesse. Operating income for Benesse’s language company division rose 36 percent from the year before to ¥6.35 billion, in part due to higher revenues and profits at Berlitz International, which benefited from “an increase in the number of lessons taken worldwide, particularly in Japan and Germany,” according to the report.

    Since the start of the strike, more than 100 English, Spanish, and French teachers have participated in spot strikes of almost 3,500 lessons. Carlet explained how the strikes work: “Nambu and Begunto notify management who will strike and from what time to what time. Sometimes they last only one lesson, other times several lessons.” During the strike, 32 of 46 Kanto-area schools have had teachers walk out.

    In addition to the traditional Japanese labor-dispute staples, such as sound trucks and leaflet hand-outs, Berlitz’s striking teachers have also been taking advantage of what every hip industrial action requires nowadays: a Web site and YouTube videos.

    “Internet technology has given us a chance to go almost head to head with the company, which has far greater financial and public relations resources to construct a positive self-image,” says Carlet. “We have used our site — www.berlitzuniontokyo.org — for general information and YouTube for visuals on our public appeals for support for the strike.”

    Early in the strike the union made several concessions, reducing their list of demands down to two: a 4.6 percent base-pay raise for all teachers and staff and a bonus equal to one month’s salary. “If management makes a serious concession we will consider moving on our side even further than we have already,” says Carlet.

    Management offered a raise of less than 1 percent at the end of September. Union members rejected that offer and, according to Carlet, “The union escalated their actions in October, including more strikes.” Begunto members also stepped up the number of leafleting sessions outside Berlitz schools and demonstrated in front of Berlitz’s Aoyama headquarters. “We also asked Benesse, Berlitz Japan’s parent company, to meet for talks. Berlitz began sending protests and threats of litigation soon after that.”

    When reached by phone, Berlitz Japan representatives declined to comment on either the lawsuit or the strike.

    The first court date for Berlitz Japan’s lawsuit on Jan. 26 proved anticlimactic. The more than 30 union members and supporters — as well as a contingent of Berlitz Japan managers — who came to the hearing at the Tokyo District Court didn’t have the chance to hear any legal arguments of substance.

    The lawyers for Berlitz Japan failed to submit their written arguments for why the strike was illegal. They informed the judge that it would take until March to prepare because of the time required to translate documents between English and Japanese. Ken Yoshida, one of the lawyers for the teachers, expressed surprise that a language school would offer such an excuse for the delay.

    Problems also arose because Berlitz Japan had failed to properly serve three of the defendants with notice of the lawsuit. The 20-minute hearing ended with the second court date scheduled for April 20. Addressing union members and supporters after the hearing, Yoshida said that the Berlitz lawyers were “obviously stalling” and wanted a protracted court fight.

    The burden of proof for the case lies with Berlitz Japan, says professor Araki. “Since Japan’s Constitution and Labor Union Act guarantee the workers’ right to go on strike, employers cannot claim damages caused by legal strikes. Thus, generally speaking, it is an employer who must prove the illegality of the strike.”

    However, unions must follow rules when striking. According to Hideyuki Morito, an attorney and Professor of Law at Sophia University, “There are four checkpoints as to propriety of the strike.” The striking union must be a qualified union under the Labor Union Act and the strike must be related to working conditions. The means of the strike must also be legal, so striking union members can’t occupy offices or interfere with operations. “In short, all they can do is not work ,” says Morito. Finally, unions must “try to bargain collectively with the employer before deciding to go on a strike and give a notice in advance when they will strike.”

    Tadashi Hanami, professor emeritus at Sophia University, outlined what the company must prove to win. “The outcome of the court judgment depends almost entirely on whether the company can provide enough evidence to convince the judge that some of the union activities were maliciously carried out in order to intentionally cause undue damage, by disturbing normal running of day-by-day school business, thus exceeded the scope of legally protected bona fide collective actions as a kind of harassment.”

    Begunto and NUGW Nambu launched their own legal challenge to Berlitz Japan, filing an unfair labor practices suit for violations of Trade Union Law on Nov. 17. The suit asked the Tokyo Labor Commission to investigate unfair labor practices by the company.

    Union representatives argue that memos posted at all Berlitz Japan language schools in November that declared the strike illegal and letters sent to union members telling them to end the strike are illegal interference. “Since nothing about our strike was the slightest bit illegal, the memos and warning letters themselves are illegal interference in the strike,” says Carlet.

    The unions’ suit also asks the Labor Commission to investigate Berlitz Japan’s refusal to meet the union’s pay demands and failure to provide any data on the company’s finances to the union. According to Carlet, “Management has a responsibility to explain to the union why it can’t meet our financial demands. It makes no such effort.”

    As the company and the unions gear up for what could be a drawn-out fight, Campbell describes a surreal existence as the sued teachers wait for the lawsuits to wind through the legal system. “Now it just feels strange to be going to work as usual, teaching Berlitz lessons, while at the same time being accused of deliberately damaging the company.”

    The next stage in the legal battle will be an open hearing at the Tokyo Labor Commission on Feb. 20 at 1:30 p.m.

    Send comments on this issue and story ideas to community@japantimes.co.jp
    The Japan Times: Tuesday, Feb. 17, 2009

    ENDS

    ============================

    Berlitz Labor Commission Hearing Number 2    Friday, Feb. 20, at 1:30pm at Tokyo Labor Commission
     
    Take Oedo Line to Tochomae Station, exit A3, up two sets of escalators, pass passport office, up stairs, take elevator bank H up to 34th floor and find “roh” (labor) room for Life Communications (company name).

      Let’s show the commission how much support our Berlitz sisters and brothers continue to have in their fight for the right to strike.  Their strike began in Dec. 2007 for a 4.6% base-pay hike and a one-month bonus.  The strike escalated in autumn of 2008 and management rather than yield to the demand decided to cheat — threatening strikers and suing all the executives for 110 million yen each.  Come on out and support Begunto (Berlitz General Union Tokyo).

    13 Responses to “Japan Times Zeit Gist on Berlitz’s lawsuit against unions for “strike damage””

    1. Behan Says:

      What a frightening precedent would be set if Berlitz won. It does seem ‘surreal’ that management could sue labor for a legal strike.

    2. James N Says:

      If the strikers are following the law, and there is evidence and or a track record to substantiate this, then there should be no worry… That is unless there is a fabrication or set up of some description. Then all bets are off. Connections with the “right” legal team may also play a roll. I hope the G.U. has the funds to weather this storm.

    3. Matthew Says:

      I used to work for Berlitz Japan under their new contract system from 2006-2008 before I became an ALT. The union’s claim to unfair treatment between old and new teachers is one of the reasons why I left; it’s no joke. However, the fact that people who were working there for ten years were earning more than me didn’t really bother me; after all, if I were there for that long I’d expect to be earning more. Yet the lack of support from the supervisory & management staff regarding my job was depressing. As well, the fact that some “per-lesson” teachers could earn DOUBLE what I was doing on Sundays/Holidays for the same work just irritated me.
      Good luck to the Union with this.

    4. Asterisk Says:

      I wonder how the company came up with the 110 million yen in damages.

    5. snowman Says:

      Can’t the union sue Berlitz for illegally refusing to enrol the teachers in Shakai Hoken? And why doesn’t the J government crack down hard on these Labor Law abuses? Who would want to be an English teacher in Japan anyway. No pay rise in 16 years! Unbelievable!

    6. Asterisk Says:

      What will also be critical is how well the NAMBU can rally allies in other Japanese unions to this sharp and blatant attack on a 1947 Constitution principle.

      All the other unions need to be put on notice that if Berlitz succeeds, it is going to redefine everything that the all-Japanese unions are legally permitted to do.

      First they do it to the gaijin, then they do it to you.

      Everyone needs to watch this one carefully.

    7. DR Says:

      I know former employees of Berlitz, and they used to jokingly say, “Ich bin ein Berlitzer!” Seems they weren’t joking!

    8. M-J Says:

      Berlitz isn’t the only company using this kind of bullying tactic against unions:

      Medical Group Sues Union for Carrying Court Verdict on Internet
      http://mdn.mainichi.jp/mdnnews/news/20090203p2a00m0na005000c.html

      Success for Berlitz isn’t necessarily dependent on winning this case. The real success comes not by attacking the actual Union body, but buy putting the fear directly into union members and workers looking to organize. By attacking specific individuals (i.e. the 5 teachers acting as volunteer executives) the message from employers to employees in Japan is loud and clear, “F*** with us and we’ll bring this to your doorstep.”

      I doubt any lawyers, executives, or their family members are stressed or losing sleep (or money) over these high jinks. So, who is going to be hurt more by this case (win-or-lose): the faceless multi-national corporation with the multi-million dollar backing, or the Average-Joe trying to collect a regular paycheque?

      – “Carrying court verdict on internet”??!! I’ve got a number of court decisions scanned here on Debito.org. It’s a public document, for crying out loud. It’s stupefying to think the medical corporation thinks it has a case.

      The intimidation seems to be having one effect: Note how the Mainichi names NUGW as a defendant, but leaves the “medical corporation” anonymous. Silly.

      =================
      Medical group sues union for carrying court verdict on Internet

      NAGASAKI — A medical corporation has filed a defamation lawsuit against a workers’ union for carrying a court verdict against the corporation on the Internet, it has been learned.

      The Nagasaki-based medical corporation filed the suit with the Nagasaki District Court on Jan. 7, demanding some 7 million yen in damages from the Nagasaki branch of the National Union of General Workers.

      The medical corporation claims that the union carried on its Web site between June 29 and July 29, 2008, the verdict of an appeal trial, in which the union demanded the corporation pay damages and annul punishment over a case involving a hospital that it runs. The union partially won the suit.

      The ruling was handed down by the Fukuoka High Court on June 26 the same year, and the workers’ union carried on its Web site the names of the parties concerned in the trial, according to the complaint filed by the medical corporation.

      “It was inevitable that the online publication of the ruling has made patients and their families uneasy about medical treatment offered at our hospital, and it clearly defamed the hospital. Although civil trials are open to the public, it is an illegal act that should be separated from it,” said a representative of the medical corporation.

      The workers’ union is poised to contend the issue.

      “Regardless of whether the ruling was made in our favor or not, we must notify its content to our supporters. We do not deem it defamation to carry the ruling on the Internet,” said a representative of the union.

      (Mainichi Japan) February 3, 2009
      =======================

      名誉棄損:「ネットに判決文掲載」と提訴 長崎の医療法人
      毎日新聞 2009年2月3日 10時44分
      http://mainichi.jp/select/jiken/news/20090203k0000e040017000c.html

       懲戒処分などを巡る裁判で一部敗訴した判決文をインターネット上に掲載された病院運営の医療法人(長崎市内)が、名誉などを棄損されたとして、掲載した全国一般長崎地方労働組合(松尾和昭執行委員長)に、約700万円の損害賠償などを求める訴えを長崎地裁に起こしていたことが分かった。判決文のネット掲載が名誉棄損かどうかを争う訴訟は珍しい。

       提訴は1月7日。訴状では、組合は08年6月29日~同年7月29日、組合ホームページ上に同年6月26日に福岡高裁が出した、損害賠償と懲戒処分無効確認を求めた控訴審の判決文を、当事者名や個人名などを伏せずに全文掲載したとしている。

       医療法人は「患者や家族が同病院での治療に不安を覚えることは確実で、病院の名誉や信用が棄損されることは明らか。民事裁判が公開されているとはいえ、一線を画する違法な行為」としている。

       組合は「判決内容は勝ち負けにかかわらず、支援してくれている人に知らせなくてはならない。ネットでの判決文掲載は名誉棄損にあたると思わない」と争う構えだ。【蒲原明佳】

    9. Behan Says:

      I don’t have any legal knowledge but shouldn’t it be OK to publicize the verdict of a civil or legal court case? Court cases by their very nature are public, I thought. Although I know judges can keep some information in a trial private.

    10. Ken Says:

      I believe that this is a scare tactic being put on by the firm. Their delays in meeting deadlines for legal proceedings seems to indicate a lack of evidence. The unions that they are challenging know what they are doing and appear, to this more than casual observer, to be on the right side of the law.

      That said, Berlitz is running the risk of scaring people away from joining the company. Going after individuals in a labor suit is no joke – it is all-out warfare on the workforce and only one firm in the history of Japan has won such a suit – and that was for a paltry sum of damages.

      Berlitz (Benesse) is falling into a negative PR trap here. I wonder what the risk/reward ratio is for them when you would consider what would be spent meeting union demands, which they can negotiate slightly downward, versus wasting so much money on a legal battle they seem sure to lose. It’s only making them look like the bad guys in the eyes of consumers, and that’s not my own opinion.

      Perhaps they should try to sue the government for decreasing the 給付金 payment ratio. That has hurt eikaiwa as much as anything else.

    11. D.B.Cooper. Says:

      Links to our comrades and their struggle against Berlitz.
      http://www.berlitzuniontokyo.org/?q=ja/node/88
      http://www.libcom.org/news/berlitz-launches-legal-blitz-against-striking-instructors-17022009

    12. M-J Says:

      Berlitz blitz against union bogs down (Zeit Gist Apr 28, 2009)
      http://search.japantimes.co.jp/cgi-bin/fl20090428zg.html

      I am surprised that the Judges are being so lenient in granting extensions. Especially with quotes like these,

      “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.”

      And,

      “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.”

      I find it difficult to believe that a corporation the size of Berlitz[1]/Benesse[2] wouldn’t have a legal advisor(s) on staff responsible for managing pay and pension systems. Plus, Berlitz and Union bargainers have had many previous encounters so why wouldn’t this type of information already be consolidated? In fact, the article states that Berlitz had hired lawyers to take over the collective bargaining sessions in Feb 2009! I doubt that management would put a completely clueless legal team in charge of something as important as collective bargaining. Berlitz is playing dirty I hope their karma catches up with them.

      [1] 2007 Fiscal Net Income 31,427,000 USD
      http://www.benesse.co.jp/IR/en/finance/berlitz.html

      [2] 2008 Fiscal Net Income: 15,462,000,000 JPY (161,192,928 USD April 09)
      http://blog.benesse.ne.jp/ir/blog/uploads/library_eng/fy2008_3_1_1.pdf

    13. Alf Says:

      What has happened recently in lieu of these events? Did Begunto lose their case, or were negotiations made outside of the courtroom?

      [incorrect information about striking being banned in Japan deleted]

      – Here’s the latest from Nambu:

      Upcoming Events

      Please come support Berlitz members at the following important hearings:

      Dec. 16 (Wed) at 4pm Labor Commission Hearing

      We have resued Berlitz for yet another violation of Trade Union Law, this time for firing the only Yokohama teacher to participate in the strike that began in Dec. 2007. The union last year sued Berlitz for bad-faith negotiations and interference in the strike, violations of Trade Union Law, Article 7, Sections 2 and 3 respectively. These suits will likely be combined with the new suit to get Walter’s job back.

      Come to Tokyo Labor Commission before 4pm, 34th Floor: Take Oedo Line to Tochomae Station, Exit A3. After two sets of escalators, pass the passport office, go up concrete steps to Bldg. #1, then take Elevator H to 34th floor. The room number will be posted (“beruritsu japan, roh”) on the bulletin board just outside the elevator.

      Dec. 24 (Thurs) at 11am Labor Court Hearing

      Berlitz sued five of its own teachers (Begunto executives), as well as Nambu and Begunto as organizations, for up to 110 million yen “each,*” claiming financial damages for what management claims was an illegal strike. They have stalled for months before submitting Brief #1, which was sparse indeed with no evidence that the strike was illegal. The strike was clearly legal. Management simply hopes to buy time and intimidate us into not striking. Come on out and support the right of teachers to strike.

      Come to Tokyo District Court at 1pm, Room 630. Take Marunouchi Line to Kasumigaseki Station, Exit 1A, and you will see the court right in front of you. Allow yourself an extra ten minutes to get through security and up to the 13th floor (I think it’s the 13th floor). I’ll give you room details when they become available. Make sure to turn your cellfone off.

      *The “each” does not mean to multiply this amount by the number of defendants. Rather it indicates the maximum amount any particular defendant could be held liable for should all other defendants’ responsibility be denied.
      ends

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