Foreign Relations of the United States, 1946, The Far East, Volume VIII

894.5043/3–2846

Memorandum by Mr. Philip B. Sullivan, of the Division of International Labor, Social, and Health Affairs⁶⁹

[Washington,] January 31, 1946.

The Trade Union Law of Japan

The text of Japanese Law No. 51, the Trade Union Law,^* passed at the recent session of the Diet and slated, according to one report,^† to go into effect on February 1, 1946, is a distinct disappointment to ILH. Study of it reveals many objectionable features. Moreover in part it is contrary to at least the spirit if not the actual text of SWNCC 92, “Treatment of Japanese Workers’ Organizations”.

Our overall criticism would be that under the law as drafted Japanese labor unions are not free agents but on the contrary are subject to a considerable number of direct and indirect government controls involving matters vital to successful trade unionism. Freedom of action and even the continuity of existence of unions will be subject to discretionary powers on the part of government administrative agencies and/or labor committees “commissioned” by them.

Specific sections of the law bearing out the above statement are as follows:

1. Article 15 states that “when a trade union frequently violates laws or ordinances and disturbs peace and order, the Court may order dissolution of the union at the request of the Labor Relations Committee”. These committees, which are to be organized on a national, prefectural or even local basis, are to be of the usual tripartite nature with employer, employee and public representatives appointed by the “administrative authorities”. While the public representatives are to be appointed “with the agreement of the representatives of the employers and workers” it is inevitable that the government agents will exercise great influence in their selection, especially in view of the last paragraph of Article 26 which states that “matters relating to the Labor Relations Committee other than that laid down in the present act shall be fixed by Imperial Ordinance”.

2. Article 24 permits the Labor Relations Committee to amend the provisions of trade agreements made between trade unions and employers if they contain “inappropriate provisions”. Of interest in revealing the power of the administrative authority in labor, matters, though not a matter of concern to our argument here, is the fact that when a major part of the workers of a similar kind in a given locality come under the application of any trade agreement, the administrative authority may at the request of either one or both of the contracting parties extend the compulsory application of the contract to all remaining workers and employers of the same kind in the same locality.

3. Article 2 limits trade union purposes too drastically, stating inter alia that organizations “which principally aim at carrying on political or social movements” shall not organize under this Act. A labor movement is certainly a social movement, and political actions should not be denied to unions. It is doubtful that the word “principally” furnishes sufficient protection to unions in pursuing activities of these kinds.

4. Police, firemen and employees of penal institutions are denied the right to organize or join trade unions under Article 4. Note that this denial of the right to organize goes far beyond the disputed matter of whether such employees should have free right to strike and in fact denies these workers the right to make collective representation.

5. The rules regarding reports that must be submitted by trade unions to the administrative authorities and the degree of supervision of unions by the Labor Relations Committee (for example Articles 5–9; 19, 24) establishes an unnecessarily rigid type of bureaucratic supervision.

6. Article 14 includes bankruptcy of the union as one of the causes for which it must be dissolved while provisions of Articles 12 and 17 appear to leave unions open for possible damage suits that could lead to bankruptcy. These provisions, it would seem, not only open the way for union-busting tactics, but would seriously restrict the ability of unions to engage in strikes since the latter are generally costly and are liable to result in empty union treasuries.

Article 12 states that “no employer shall claim indemnity from a trade union or members or officers of the same for damages received through a strike or other acts of dispute which are proper acts”. They are, by indirection, liable for damages for improper acts, which acts might, for example, arise out of a dispute over the meaning of a clause in a contract or incidents pertaining to the conduct of a strike. Article 17, which applies certain provisions of the Civil Code to unions which are legal persons (and there is a possibility that under the law all unions become so upon filing required data), also opens the door for damage suits. Article 44 of the Civil Code which is specifically named in Article 17 of the Trade Union law as applicable to registered trade unions, states that juridical persons are liable for damage done to other persons by its directors or other agents in the exercise of their duties. Third persons, as well as employers would be able to sue unions under this provision and bankruptcy could result from large litigation costs alone. As stated earlier union security would be endangered and union-busting tactics facilitated and perhaps encouraged by such provisions. It is our belief that trade unions should not be exposed to dangers of this kind.

SWNCC 92, “Treatment of Japanese Workers’ Organizations” states [Sec. 4(b)] “Legislative steps should be taken to provide legal safeguards for workers’ organizations in the carrying out of legitimate trade union functions”, and that [Sec. 4, (k)] “Japanese Government Agencies which have been set up or have functioned for the purpose of or in such a way as to obstruct free labor organization and legitimate trade union activities should be abolished or their powers in respect to labor revoked”. The above analysis of the new law indicates that it is far from providing all the legal safeguards needed by worker’s organizations in the carrying out of legitimate trade union functions and that government agencies will still be empowered to obstruct certain types of worker’s organizations and to block activities which may be classified as legitimate.

Another set of criticisms of the law might be concerned with what the law does not do. For example there are no provisions such as are found in our National Labor Relations Act⁷⁰ preventing employer domination of unions as a means of controlling genuine employee organizations.^‡ This and others of a like category may be the subjects of separate labor acts, hence it does not seem necessary to pursue this line of analysis at this time.

The new law is of course better than no law at all. It marks the first legalization of trade unions in Japan. But it fails to go far enough in freeing such organizations from the heavy hand of bureaucratic control. Under it unions are not free agents. They can be controlled even though pursuing legitimate objectives by legitimate means. This is the antithesis of one of our basic occupation policies which aims to encourage the development of democratic organizations in labor, industry and agriculture largely because of the contribution they are expected to make towards the building of a democratic society in Japan. Insofar as they are controlled or controllable by government they will cease to provide any real help in this direction.

It is our opinion that changes in this law should be ordered at as early a date as possible. It is also our opinion that persons familiar with the problems of trade unionism, including one or more versed in its legal aspects, should be sent to Japan as advisors to the trade unions now in process of development. Only inexperience on the part of the present leaders of Japan’s unions would have permitted such a law as this Trade Union Law to go through without more vigorous protest and opposition than appears to have been made, and the presence of American advisors, providing as they would experience and moral support, should prevent repetition of the passage of laws affecting labor of such a regressive nature. The anticipated early consideration by the Japanese Diet of a labor disputes arbitration and conciliation act makes speed important here.

Philip B. Sullivan

69. Copy of memorandum transmitted on February 14 to the War Department for comment and despatch to SCAP as State Department comment on the text of Trade Union Law 51 as received; the War Department was asked to omit the first and last paragraphs but to insert an introductory paragraph. The latter would contain the statement: “It is fully recognized that the timing and nature of any action which may be taken to implement these comments falls entirely within the scope of judgment which only the Supreme Commander and his staff are in a position to exercise.” (894.5043/2–1446) See also letter to War Department of March 28, p. 185.
70. Tokya Report No. 146. Dec. 29. 1945. [Footnote in the original.]
71. F.C.C. Jan. 11, 1946, pp. BB1. [Footnote in the original.]
70. Approved July 5, 1935; 49 Stat. 449.
71. Article 11 does outlaw union-membership discriminatory tactics on the part of employers. [Footnote in the original.]