Foreign Relations of the United States, 1948, The Far East and Australasia, Volume VI

894.017/10–448

The Department of State to General of the Army Douglas MacArthur, Tokyo¹

confidential

[Washington,] October 8, 1948.

Final Approved Draft

1. Reurad Z–24321,² Cabinet’s amendments to the National Public Service Law, together with contemplated National Railway Corporation Law, Public Corporation Law for Tobacco and other Monopolies, and National Negotiation Law for Public Corporations, have been carefully examined here by Departments of Army, State, and Labor. These measures should strengthen the foundations of a democratic and efficient public service which will uphold the integrity and dignity of the new Japanese Government without reinstating the evils of the old bureaucratic system. Your action to prevent strikes by government workers regarded as timely for reasons you have cited. While all agree with general purpose proposed legislation, are cognizant of the delicate situation existing as described urad C–63093 and in concluding paragraph Z–24321, and desire to assist and support you in reaching a practical settlement of this difficult problem in a manner appropriate to conditions in Japan and to the satisfactory conduct of our foreign relations in general, we desire you consider following comments (except where ascribed to FEC countries or to others) as expression of U.S. policy interests in this problem.

2. As you know, virtually all friendly FEC nations, while willing to acquiesce in the interpretation that the FEC policy decision 045/5, “Principles for Japanese Trade Unions”, transmitted as JCS directive, Serial 63,³ does not fully apply to all government employees, have stated through diplomatic channels and otherwise the view that it should apply at least to industrial workers in government employment. For your strictly confidential information, the contrary view that JCS Serial 63 has no bearing on government employees is opposed by so many FEC countries that it is not regarded by the Department of State as capable of successful defense except through unilateral use of the defensive veto by the U.S. member. We are sure you will concur in our earnest desire to avoid such a development. We believe that broad general support for the legislation would probably be forthcoming from these governments if the legislation does not conflict with the interpretation that the terms of JCS 63 should apply at least to industrial workers employed by the government. This interpretation would be consonant with pertinent occupation usage prior to the issuance of the Cabinet Ordinance of July 31, does not in our opinion conflict with the terms of your letter to Premier Ashida, nor so far as we can determine, bring into dispute any statement which you have personally made public. Solution along these lines would, we believe, meet the objections of such nations and at the same time avoid the necessity for our acquiescence in their interpretation of JCS 63.

3. The right to strike is denied to all government employees in the laws contemplated for enactment. Under any interpretation of JCS 63, such enactment would be consistent with FEC policy if you made a finding as Supreme Commander that you consider that strikes and other work stoppages on the part of any and all classes of government employees would “directly prejudice the objectives and needs of the occupation”. If you made such a finding, it should obviate the claim that JCS 63 (para 5) has been violated by the no-strike provision, without changing the results you are seeking. Such a finding could be included in any statement you might make prior to the enactment of the legislation or at the time of its approval by you (without, of course, it being necessary for you to mention JCS 63).

(Addition to paragraph 3 by Secretary Royall)

It would be implicit in such a finding that your approval of absolute denial of the right to strike under proposed legislation is based on present occupation conditions and does not necessarily prejudge this question for the future.

4. The right of collective bargaining, in the sense of including the coercive power of the strike threat, is likewise denied to all government employees in contemplated legislation. This denial is felt to be necessary to meet conditions in Japan, to be desirable as a matter of policy, and to be fully defensible by this Government with the support of friendly countries, against any contrary views. For the same reasons and with only moderately diminished generality of anticipated support, we feel that collective bargaining, in a second and distinct sense of not including the coercive power of the strike threat, has application only to certain categories of government employees. The central issue in the controversy which we are concerned to avoid is over the scope of application of the right of collective bargaining in the second sense to various categories of government employees, which is discussed below.

5. It appears that Railway and Government monopoly workers will be adequately provided for under the contemplated legislation, although the National Public Service Law does not by its terms clearly state whether or to what extent they are excluded from its provisions. We feel that the proposed National Public Service Law should clarify this.

6. It is believed, however, on basis U.S. contacts with representatives friendly governments, that they will argue that the proposed legislation is deficient regarding its provisions for industrial employees who are in the government service but outside the scope of the proposed Railway and Government Monopoly Corporation Laws. Such employees would include those in maintenance, construction, custodial services, government plants and communications workers other than postal. In accordance with their contention that JCS 63 applies to such employees, they would claim that such employees should have not only the right to organize and join employee associations but also (under Section 4 of JCS 63) to negotiate through such associations regarding terms and conditions of employment and have recourse to mediation and arbitration machinery when industrial disputes cannot be settled by negotiation. Proposed Japanese legislation evidently does not give such employees full rights of collective bargaining in the second sense described in para 4 above (right of negotiation in proposed Japanese law is “solely in the sense of presenting grievances and making and discussing recommendations”) nor does it provide mediation and arbitration machinery, both of which are to be provided for in the case of similar workers in the public corporations. Although we are fully aware of the practical difficulties inherent in giving such rights to these employees under present conditions in Japan, concession of these rights to industrial employees of the Government, who have enjoyed them until recently, should, in our opinion, broaden the basis of Japanese political support for the proposed legislation; conversely, permanent withdrawal of these rights would enable the Communists to propagandize this effectively in Japan and elsewhere in the world, and might weaken the influence of anti-Communist labor leaders in Japan (Section 2, para 1, your Z–24286 of Sept 27).

7. We understand that the provisions of the proposed National Public Service legislation recognize the rights of employees to form or join lawful employee organizations of their own choosing and to present grievances and negotiate through representatives (see para 8 below) with the proper authorities. We consider such provisions desirable as a matter of policy. In this connection, we believe we can successfully defend the limitation of rights for ordinary civil service employees to those stated in the first sentence of this paragraph. However, for your information, in light of the views expressed by some friendly FEC countries and by U.S. labor, you might want to consider further extension of collective bargaining rights and mediation and arbitration machinery provisions for ordinary civil service employees. In view of the fact that this extension goes beyond U.S. practice, it is recommended only if you decide that it would be advantageous, when conditions in Japan are considered.

8. Concern has been expressed over those sections of Articles 98 and 101 which limit employee representatives to those “from among persons in the service”, who can perform such activities solely “on an occasional or intermittent basis requiring only a minor portion of an employee’s time”, as being too limiting and not providing adequate opportunity for responsible conduct of the affairs of these organizations. We understand fully the abuses which have occurred in this connection and your reasons for these provisions. It is felt, however, that the quoted passages should be deleted and provision made in the law for adequate representation either by employees or by others of their choosing; at the same time conferring upon the rule-making authority the power by regulations to prevent abuse of these rights.

9. Because of the peculiar nature of their functions as guardians of the public safety and order, which is recognized in general practice elsewhere, we fully concur in and expect no objection from other nations regarding provisions of proposed law relating to the police, fire, coast guard, penal institutions, etc., services. No exception has been taken to such provisions in previous Japanese legislation. We understand these provisions would not prevent such employees from joining mutual aid and similar benevolent societies.

10. The proposed National Public Service Law does not, but in our opinion should, make clear whether and to what extent it will be applicable to prefectural or local government employees, such as teachers.

11. Last sub-para of Article 1 of National Public Service Law implies that National Personnel Authority can take action by rules which would seem to nullify provisions of the law itself. This may be due to a mis-translation. Clarification of this sub-paragraph appears essential to insure appropriate control of the Authority by the Cabinet and/or the Diet.

12. The terms of the proposed “National Negotiation Law for Public Corporations” appear to us to be excellent. However, question has been raised regarding “possible penal punishment” for employees resorting to “acts of dispute”. U.S. legislation cited in urad C–63093 provides “forfeiture of Civil Service Status”, etc. as maximum penalty for such acts.

13. We assume that the additional legislation with respect to public corporations will be enacted substantially simultaneously with the National Public Service Law and that your approval of National Public Service Law would be contingent upon the passage of the other laws. Please advise if otherwise.

14. We would appreciate information at your convenience as to the significance of the 1951 dates which appear in various places throughout the proposed legislation.

15. For your information in considering the above, the U.S. Delegation to the U.N. Assembly, in anticipation of possible presentation of this subject to Committee No. 2 of the U.N. General Assembly by another country, has just requested full background information covering all issues and positions taken by the various FEC countries on the controversy in question. If, as is probable, the Soviets make a propaganda issue of this question in the Assembly, it is of particular importance to the U.S. Delegation that it have the support of as many countries as possible. With this in mind, it is most expedient that the views and interests of friendly FEC countries on this problem continue to receive our close consideration.

16. This matter is receiving continuing close attention here. Your prompt reply to our last cable is greatly appreciated. Request you keep us informed of developments, including any material changes in this law and drafts of related proposed legislation when available.

17. Finally, we wish to repeat that all interested agencies of this Government believe you are achieving gratifying progress toward providing a lasting solution to a problem which has increasingly menaced political and economic stability in Japan.

1. In a letter to the Commissioner of the U.S. Civil Service Commission (Frances Perkins) of October 6, Acting Secretary of State Lovett said the draft cable was being sent to the Department of the Army for transmission to SCAP and added: “While this cable does not follow your suggestion for the withholding of collective bargaining rights from all government workers, I trust you will appreciate from a reading of the cable the reasons why this Department favors the retention of collective bargaining rights of a non-coercive nature by industrial workers employed by the Japanese Government.” The Department of Defense has stated that this cable was sent as WAR 90494, October 8, 1948, personal to MacArthur from Under Secretary of the Army Draper, with minor editorial changes.
2. SCAP telegrams as cited not in Department files.
3. December 13, 1946; see memorandum of December 10, 1946, Foreign Relations, 1946, vol. viii, p. 369. FEC–045/5, December 6, 1946, is in Activities of the Far Eastern Commission, report, p. 91.