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.