The Law Doesn’t Matter? Interview With Kara Harris

This is an interview with Kara Harris, an American from New Hampshire who took the Nova eikaiwa chain to court and won. She majored in Japanese Studies in college and first traveled to Japan as an exchange student at Tsukuba University in 1997. She is currently studying business administration. She also volunteers for Human Rights organizations and the ASPCA.

D: Thank you for this opportunity Kara to let the readers of Japan Probe and others know about your experience with taking Nova to court and more so with the unions. Let’s start at the beginning and as briefly as possible, tell our readers about what you got yourself involved with and what you did about it.

K: This is going to be as short as possible, so I may leave some things out–not to mention my journey really started in 2002. I joined the union in February of 2003, in part because I was being harassed, but MOSTLY because I wanted to do something to help out, not just sit in the teachers・room and moan about how bad the company was. I had volunteered pretty frequently, but eventually the president told me that the Secretary General was uncooperative and wasn’t performing his duties. I had believed him because the Secretary General always looked angry and wouldn’t talk to anyone–he was just typing away at the computer or shuffling papers. This was completely false, as I found out the real story from the Secretary General and two other members. The reason why the Secretary General wasn’t speaking to the president is because the president wasn’t doing his share of the work. I was unofficially made the interim Secretary General of the union. It was illegal, as there was no vote I didn’t know that at the time–I was fairly new to the whole union scene.

Around March or May, I went to the foreign personnel manager to file an official complaint against my AAM as well as to request a contract recognizing my status as a permanent employee to strengthen my job security. I got the idea that I was a permanent employee from Jon, who knows his stuff about labor law. He acknowledged employment was continuous, but refused to give me the contract reflecting this fact and found that my AAM acted appropriately. We all know, this is total BS. After that, I noticed that I was being delayed for or not being scheduled for contract evaluations and I got no explanation why. It was that summer that I told the union I felt I was not going to get renewed, and I even made JOKES that I would try to get myself fired, since I knew non-renewal was around the corner. Next time, maybe I’ll just have no sense of humor at all when faced with a bad situation, I wouldn’t want it to be taken out of context.

I had spoken with the Secretary General who introduced me to union member in a sister organization who was suing the same company. After talking with them, I felt there was something not right about the whole situation with the union, but I just couldn’t put my finger on it. I was confident that the union would protect me (is that not what they are supposed to do?). Well, I get a letter from Nova essentially telling me that I am a terrible teacher and they have all of this evidence proving I was terrible essentially they wanted me to admit to something I didn’t do and I knew this would be held over my head if I wrote an essential confession. I will give the union this: they did show me how to write an appropriate response to them. (They also told me that Nova had no legal right to kick me out of my apartment, but heck, it didn’t do much good until my LAWYER told them to back off.) Well, that made them angry because they told me that my contract would not be renewed–I was only given 5 days notice, which was illegal. Weeks went by and the other union member told me that I needed to find a lawyer as soon as possible–but I continued to stick with the union.

A union official did have a chat with Nova and Nova said they would offer me a private apartment and a new contract in Machida on the condition that I write and sign a confession letter. It sounded good on the surface. The union official told me that I should take it because court cases take a long time in Japan and I would have to work under the table to support myself. I did not take the contract because I knew it would come back to bite me in the behind. If I had signed that contract and “confession letter” then, I would have essentially been considered a new employee, not an employee with continued employment and I would have lost all of my rights along with it. It was clearly meant to delay the dismissal, not resolve it. With a signed confession letter, I would be unlikely to have a case against Nova in the future should the same thing happen. Another example of how the union had inaccurate information about dismissal proceedings at the time is when they told me that I should keep showing up to work. My lawyer was baffled by the advice and essentially told me that I had nothing to prove and trying to show up to work would be a waste of time. It was Nova that needed to prove they had a good reason to dismiss me. This official even told me that I shouldn’t ask for my payment in lieu because it would mean that I accepted the dismissal again BOGUS advice, according to the other union member, his lawyers, my lawyers and the labor standards officer. The labor standards officer even told me I needed to go back to the company and demand my 25 days pay because I was entitled to it regardless of whether I was fired or not.

Now, the union member with his own lawyer told me a few days before hand about provisional labor insurance. If I filed a lawsuit, I would immediately entitled to unemployment insurance PLUS I could file a labor injunction. In the eight months I was a member with the union, not once did ANY of them mention this is because they didn’t KNOW about it (and if any of them try to sit up there and lie that they did, I swear I’ll blow a gasket). I saw this as incompetence–as an organization that was supposed to be well-versed in the law, I thought it was strange that they didn’t know about this. I was afraid that if I allowed the union to do anything else, I didn’t have the time or the money to sit on this any more. Bear in mind I did NOT quit the union at that time. This was like September or October.

In November, I and other members who were not satisfied with the union’s leadership had a “public argument” through an email list. I made it clear that I was angry with the leadership for not providing adiquate assistance to the 4 members (later 3 after they got angry at the 4th member for seeking consultation with a lawyer) they claimed to be helping. It was no longer about me. That same month, there was a general meeting. I went, even though I knew I would not be welcome. I was still a member, after all. I felt I was not there to criticize–I had said everything I needed to say to the president. I was there to help the three members who had no jobs and no income. I told the members my story and I said that the best thing to do would be to start filing separate lawsuits in conjunction with protests. I told them about provisional unemployment insurance (they even photocopied a document I wrote about the procedure) as well as labor injunctions. Well, my ideas were poo-pooed, but oddly enough, guess who decided to use my ideas after I was run out of the union? The president even made a statement that if any of them wanted their own lawyer, it would have to be approved by certain union officials. This is ILLEGAL. If this is the union’s idea of fighting for job security, then I am grateful I didn’t listen to their advice. The president had the nerve to take stabs at me and try to get a vote of confidence (for himself!) in a meeting he wasn’t even running (because he was too emotionally distraught to do so). I was angry because it turned into his meeting, when the focus was supposed to be on those who had lost their jobs.

And YES. I was run out. I wanted to help, I still have emails stating that I still wanted to be involved, but because I took my case elsewhere, I was treated like chopped liver. The president, who I considered a friend, never even called up to ask how I was doing after I had made my decision to get myself a lawyer. A certain union officer himself even told me I should start my own union・and that the Nambu president wanted to take my membership away this is in the SAME email as where he threatened me. Does that sound like I quit?

Side note: I find it ODD that the union never acknowledged that they lost those three cases and dilly dallied on appeals until it was too late. Against my friend’s advice, I still wanted to help those union members get their jobs back. I also find it ODD that one of these people came to me and told me that he should have listened to me in the first place. You really ought to be more responsible and OWN it.

About two weeks later, a certain union official had the nerve to send me a nasty email at the end of November essentially threatening to destroy my case by telling me someone may tell Nova that I planned to get fired. This person can deny it all he wants, but I still have the email as does my lawyer.

My lawyers were a little wary about fully committing to my case at first because I was still officially a union member. When I told my lawyers all that had happened with the union, they were LAUGHING. Yes, LAUGHING. One of them said, I don’t understand. I thought a union was supposed to help people. Once they understood the situation, they were more than happy to help me (I guess they were initially afraid of stepping on the union’s toes because they know how REAL UNIONS work and figured that my case was easy-enough for them to handle).

The judges (all three of them) found in my favor. Winning my labor injunction proved that I was deserving of continued/permanent employment and the company had no business firing me already knew this, as the LSO told me point blank that there had to be a reason for dismissal and stating my contract ended doesn’t count. Everything that I had been doing was right in line with what would be expected of a normal employee. It was also helpful that I happened to have two judges who understood the eikaiwa situation.

Let’s not forget that at the end of the day, I had a choice of going back to work at my old school with my old schedule AND my old employment status OR accepting a tidy settlement. That’s what I wanted from the beginning, but the union wanted to quit on ME before that could happen. They wanted an immediate victory without thinking about the consequences.

And some people wonder why so many have such little faith in the union. I hear a lot on message boards about how I am “bitter” about the union. I don’t think that’s such a big shock. The mistake is assuming that I am bitter because of how they treated me. I was pretty much over it after I got my lawyer. I was getting angry with them for the way they were treating other people and the way they were using the idea of “solidarity” and “democracy” to suit their own agenda.

I just hope that in the wake of what’s happening with Nova now, they are able to get it together.

D: It seems strange that the union would be against you taking the case yourself if it would result in a victory by an officer, what were they thinking? I recall you mentioning that you were a pawn in their relationship and negotiations with Nova at the time. What was the union trying to accomplish with Nova?

K: That’s just the thing–NOBODY knows what they were thinking. My theory–and I am sticking to it–is that the Tokyo Nova union wanted to do everything themselves without any help from anyone else. There were many occasions where they could have consulted other unions or the LSO for information on what to do with certain cases, and they refused, which meant that often times cases were sitting in file drawers. My case was primarily due to an illegal dismissal. Make no mistake, during the summer of 2002, a new AAM came to take over and from the get-go, we didn’t get along. Nova really tried to flush me out once I made a formal complaint against my AAM and requested a permanent contract because I wanted to have some sort of assurance that I wouldn’t lose my job due to harassment this was incredibly valuable to the union and when I decided to leave, I was no longer of any use to them. An email was written that pretty much summed up their whole attitude.

D: When you were forced out of the union as you say, you were threatened? Can you go into that a little more? Were you intimidated into NOT taking your case with Nova to court.

K: Well, I got an e-mail on November 23, 2004 where the writer made the following statements (I don’t know the legality of posting this in your article would be, but it can help you get an idea of what I had to deal with it not write this in the article, but this email was written by XX. I just want you to know this so you know what I was dealing with). I have included commentary on them.:

XX: Of course, you are welcome to stay in the union as long as you want so long as you act in the interests of the union and not contrary to it, as per the union constitution.

K: I never clearly understood how seeking legal representation acted contrary to the union, especially since another member of a sister union had his own lawyer. If I was acting contrary to the interests of the union in seeking a lawyer, then this tells me that I was being used as a pawn it wasn’t about getting my job back.

In the same email, the writer suggested I quit the union and start my own. Honestly, I didn’t understand what that would accomplish.

XX: Nevertheless, I think your case is very strong, the strongest of all the recent union member firings. We are about to take three other cases to both the Rodo-Iinkai and to court.・

K: Now this baffles me. I wanted to take my case to court, they wanted to go to collective bargaining with it. I already knew Nova wouldn’t act in good faith, so what good would it do? I would be sitting there without any money, literally not knowing when I was going to eat next and they would waste their time with collective bargaining? Why not just take my case to court in the first place instead of giving me the run around? At least if the case was taken to court through a labor injunction, I could get some kind of income to live on while fighting Nova.

XX: Despite the fact that you went off on your own and hired a lawyer without involving the union, we hope you win of course, although don’t kid yourself that it will help the union. If you win, it will only mislead people into thinking that they don’t need the union or that the union doesn’t have lawyers, both untrue. If you lose, it won’t help the union either — rather it will embolden Nova.

K: First of all, the union has absolutely no right to infringe upon an individual’s constitutional right to a lawyer. What business do they have telling me or anyone else that I should have involved them in a personal decision? They talk democracy, but they ignore basic constitutional rights! He states that if I won my case, it would mislead people. This to me shows blatant FEAR. And while he is talking, I realize that this whole email isn’t necessarily about me anymore. It’s about them losing a tool–LOSING POWER.

This made me feel like the only way I was useful to them was my case. There was no mention of other ways I could have been of help to the union. There was no mention of how I could continue volunteer to work on cases. This shows it was my CASE, not my personal value that mattered to them.

XX: I have to say that I have spoken of your case with the president of the [parent]union, XX. He pretty much recommended that the union expel you. I think that is too extreme, but we do have to think of our members.

K: If this isn’t a subtle threat, I don’t know what is. What is meant by thinking about the members? Was I not a member, too? He talks about thinking about the members, but he is writing to one who needed assistance they did not want to give. I felt it was strange that no one gave the other union member (who held an office) this much grief for his choice. And that was probably the point. Since the other union member had his own lawyer and was winning his own cases, the Tokyo Nova union may have felt they could prove the union could do just as well with my case.

XX: I also have to say that I was shocked to find an email apparently that you wrote saying you intentionally got yourself fired. Please tell me that you didn’t write that. Surely you wouldn’t put an unnecessary burden on your fellow union members both financially and work-wise. Of course, you know that if Nova ever got a hold of that document, your court case would be thrown out.

K: Another threat to ruin my court case. If you want to know why I think XX is a snake, this has a lot to do with it.

Writer: Our union lives only on solidarity. We have to stick together and fight together. Every discipline or dismissal is a union matter. If you are gonna get your own lawyer rather than a union lawyer, without even consulting your fellow union members, that what is the point of staying in the union?

K: This is so contradictory, it’s almost as if it’s written in some sort of code. It’s okay to speak about solidarity to abuse members who want to make their own legal choices, but what about setting an example by saying, It’s okay, it’s all right that you got your own representation. What are some other ways we can work together?

D: What was the gist of your case with nova? You were the plaintiff right? What strategy did you and your lawyers use?

K: I was the plaintiff in an illegal dismissal case. Nova said that I was fired because I had too many complaints and I was hostile and defensive, yet the reason written on my rishokuhyo was that my contract had ended. I suspect the real reasons why I was fired is because: my AAM hated me, I asked for a contract that reflected my status as a permanent employee and I refused to write and sign a confession letter (they call it a letter of improvement). My lawyer’s strategy was basically to show that not only was I a good teacher, but Nova’s evaluation system was unfair and exaggerated.

D: Your case went from 04 to 06 a long time. What did you do in the meantime to keep from going bonkers?

K: I consider myself a workaholic. I was going stir-crazy waiting for provisional unemployment insurance, so I asked my lawyers if it would be okay if I could go to work at least part-time. They said I could. I just reported my earnings to Hello Work and they made the necessary deductions on my salary. I taught a few private students and took on some classes. I just really enjoyed teaching.

D: You eventually did win your case and received a very handsome judgment, about 7 million yen, what if anything would you have done differently if you had to do it all over again?

K: Looking back, I don’t think I could have done anything differently. You learn about what you need to do by making mistakes and learning tough lessons.

D: Nova appealed the decision and lost again on appeal, what was the grounds for their appeal?

K: Nova tried to appeal the labor injunction on the grounds that they had a legitimate reason to fire me. In essence, there were two court cases going on at the same time.

D: How did you handle the language problem in court and with your lawyers, did they speak good enough English? Did you work with a translator?

K: Well, it was a sort of odd combination. With my Japanese ability, I understood about 60% of what was going on. One of the lawyers, who was American, translated some of the more intricate details of the case proceedings. My Japanese lawyer understood a bit of English. Two judges in these cases spoke English very well the other had studied abroad in the US and were very nice people.

D: What was Nova’s attitude during the proceedings?

K: I really am laughing out loud because I won’t ever forget it. In a nutshell, if Nova’s lawyer had acted the way he did in the US, he would be spending a few nights in jail for contempt. He would constantly show up late or not at all. He tried to delay meetings. He fought with one judge to which the judge replied, Who do you think you are? Don’t try to teach me about the law. What really shocked my lawyer in the end was when Nova’s lawyer called him up and said, I can’t understand what Nova’s thinking.

D: I would like to get back to the union and their issues with you. Why do you think they are so dead set against you speaking out?

K: I think for some people out there, the truth is a hard pill to swallow.

D: In your opinion, is it worth having a union represent you in dealing with an employer in Japan?

K: It depends on a couple of things: 1) the strength of the union. 2) What kind of issue it is. If you have been dismissed, physically attacked or you are owed wages from a company that is not having financial difficulties, then it is best to seek the help of a lawyer or go to a small claims court. If you are looking to gain benefits, then it is absolutely essential that you join or form a strong union to make this happen.

D: Would you recommend joining a union? Even if it is not the one you were associated with?

K: This sounds crazy, but I would still recommend it. Unions ARE needed in order to improve working conditions for employees in terms of benefits. Employees still need to be responsible and be aware of the rights they already have that are guaranteed to them under the labor, civil and constitutional law as it pertains to their workplace. This can help unions a great deal in refocusing their energy from policing organizations to improving them.

D: Anything else you would like to add or recommend to anyone having difficulties with their employer in Japan?

K: My biggest recommendation is to make sure that employees know the law as it pertains to their places of employment. They need to be aware of all of their options and choose what is right for them. Some unions believe they are a one-size-fits-all solution, but I believe this is a choice that needs to be left up to individuals. While unions have won some benefits and forced organizations to acknowledge rights of employees, I feel it can only help a union to have members (and even non-members) understand rights that are already guaranteed to them.

D: Thank you very much Kara, Is there anything else you would like to add?

K: The union constantly gets angry at me because I have said that whenever the union talks about victories・ such as winning・paid holidays and unemployment insurance, it is misleading. These things are already guaranteed to all workers under labor law. You can’t win・what you already have. I believe the union should change their language and say that they have forced companies to acknowledge rights guaranteed to workers. They didn’t WIN them. This becomes dangerous for future workers, in my opinion, because if unions continue to claim they are winning basic labor rights, it will become that much harder for future employees to gain benefits beyond what is already guaranteed to them because their predecessors had already bargained down the bare minimum. Some say the opposite is true, but from a practical perspective, the Nova union has been in existence since 1993, and I honestly can’t think of many benefits Nova teachers have been able to gain. It almost seems as though forcing a company to acknowledge basic rights is the easiest thing to tackle. What the union could focus on would involve a totally different (and much more complicated) strategy.