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Why workers can no longer wear their demands on their sleeves

by Hifumi Okunuki

Dear reader, where are you from? To what era do you belong? I was born in 1971 in Japan and grew up here, too, but I’ve never — in all my years visiting hotels, restaurants, shops or government offices — seen workers wearing vests, armbands, badges, ribbons or bandanas with political messages. I’ve never seen a waiter with an armband reading “We demand wage hikes.”

This country was quite different in the 1950s, ’60s and ’70s. Workers from all walks of life, many of whom were unionized, often wore their messages of solidarity and demands for better conditions quite literally on their sleeves. I wonder how many Japan Times readers have seen such workers here in Japan or in other countries.

The courts had quite a lot to say about the legality of such actions. The Labor Relations Commission’s basic position was that it amounted to “legitimate union activity” as long as it did not interfere with the fulfilment of one’s work duties. The courts usually admitted the legitimacy of wearing union vests and other protest paraphernalia during a labor dispute, even during work hours — again, as long as there was no specific obstruction to work or the operation of the company.

On April 6, 1967, Kobe District Court ruled in favor of workers at Nada Post Office who wore ribbons that read “Use our right to solidarity to win big pay hikes,” even though they violated the post office’s dress code and prohibition of union activities during work hours. “When workers exercise their fundamental labor rights guaranteed under labor laws, union actions that will not interfere with business should be permitted,” the court said.

That trend took a sharp turn, however, on May 29, 1973, with the Kokuro Seikan Regional Branch case. Kokuro is a union of Japan National Railway workers and Seikan was the branch covering Aomori Prefecture and Hakodate, Hokkaido.

Sapporo High Court ruled that workers “must concentrate all their mental and physical energy on fulfilling work duties, and any mental or physical activity outside of that purpose cannot be allowed.” This established the legal principle of shokumu sennen gimu, or the obligation to devote oneself to one’s work duties.

Wearing a union ribbon during work represented a “failure to concentrate one’s mental energy solely on fulfilling work duties, since work is carried out while conscious of union actions,” the court ruled, even though it is “not a physical hindrance to concentration on work duties” and regardless of “whether or not there is a specific obstruction of work.”

The trend moved from the public to the private sector with the Taisei Kanko case. The Supreme Court on April 13, 1982, overturned a Tokyo Labor Commission ruling that union members wearing union ribbons during their shifts at Hotel Okura (managed by Taisei Kanko) were engaged in legitimate dispute action and that disciplinary actions meted out by management constituted unfair labor practices. Japan’s highest court ruled that the ribbon wearing was illegal, since it indicated emotional “disobedience” to management authority.

Other similar rulings followed, favoring the right of employers to prohibit the wearing of vests and other forms of messages by workers in schools and hospitals, taxi drivers and other service workers. Reasons included that such political messages might make customers feel uncomfortable or hurt the image of the company. These verdicts had a serious chilling effect on workers trying to exercise their union rights.

One Supreme Court justice partially dissented from the Taisei Kanko ruling. “Strictly defining the worker’s shokumu sennen gimu and saying that workers cannot divert any attention from their work duties while they are on duty puts the worker in a completely subservient role to the employer. I believe the obligation extends only to the degree that a worker must sincerely fulfill his or her duties based on the labor contract and that it is possible to fulfill the obligation and engage in union activities if it is such a way as not to interfere with work at all.” Masami Ito became famous for this opinion — so much so that it is known as the Ito Iken.

To be clear, none of the above matters when it comes to a strike, a right enshrined in the Constitution (Article 28) and Trade Union Law. During a strike, workers have no obligation to their work duties and are given immunity from civil and criminal liability regardless of damage to the company and/or interference with its operations.

I said earlier that we don’t see workers wearing such political messages on badges and whatnot these days, but I realize there is one public servant involved in a political badge campaign. A man named Shinzo Abe, while on duty, wears badges calling for the “rescue of North Korean abductees” and in support of Tokyo’s bid for the 2020 Olympics. One can only wonder how he would respond to the accusation that he is failing to fulfill his obligation to devote himself to his work duties.

If the prime minister has the right to wear his political beliefs on his lapel, perhaps it’s time for workers to fight for that right as well.

Hifumi Okunuki teaches at Sagami Women’s University and serves as the executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at tozen.okunuki@gmail.com. On the third Tuesday of the month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law. Send your comments and story ideas to community@japantimes.co.jp.

  • http://getironic.blogspot.com/ getironic

    “If the prime minister has the right to wear his political beliefs on his lapel, perhaps it’s time for workers to fight for that right as well.”

    Or how about it is not a matter of rights, and instead is a matter of the contractual agreement between employee and employer, which was entered into voluntarily by both parties — with neither owing anything other than what is specified in the contract.

    The government should not be in the business of favoring either employee or employer, in an employment context, it is there to enforce the contract, and that is all. If either party finds the other’s terms to be unsuitable, they remain free to reject them, but they should not be “free” to force the other side to accept terms it otherwise would reject.