CCAR RESPONSA
5761.4
The Synagogue and Organized Labor
She’elah
Our congregation is in the process of cost-estimating some new construction to our synagogue facility. Our cost estimators suggested that we can save some $300,000 by using non-union as opposed to unionized labor. Do Jewish law and ethics offer us guidance in making this decision? (Rabbi Stuart Gershon, Summit, New Jersey)
Teshuvah
Jewish tradition does offer guidance toward answering your question. That guidance is divided, however, between the affirmation of two conflicting concerns. On the one hand, Jewish law supports the right of workers to organize into unions in order to protect and further their economic and social interests. In our Reform Jewish tradition, this support is very warm indeed. On the other hand, consumers also have interests that deserve protection. One of these is the legitimate desire to reduce costs by spending less for goods and services. Our goal in this responsum is to examine both of these concerns and to propose a way to resolve their conflict in a reasonable manner.
1. ORGANIZED LABOR AND JEWISH LAW
We read in the Talmud: “the residents of a community (benei ha`ir) are entitled to establish the community’s units of measurement, the prices of commodities, and the wages paid to workers; they are also entitled to punish those who violate these rules.”[1] This passage is a major source of the Jewish law of takanot hakahal, the power of the community to govern itself by adopting legislation on a wide variety of matters.[2] The Talmud makes clear, moreover, that the term b’nei ha-ir (the residents of a community) applies not only to the local citizenry but also to the members of specific commercial or trade group. Thus we read in a related passage that the butchers of a certain town adopted a rule that prohibited any one of them from doing business on a day that had been reserved for another.[3] Workers in other trades possess similar powers.[4] Medieval halachah, indeed, recognized that “any group whose members share a common economic interest” is endowed with the power of the b’nei ha-ir to legislate concerning wages, competition, and working conditions.[5] The regulations adopted by these groups are binding upon their members in much the same way as the laws adopted by the b’nei ha-ir are binding upon all the residents of the community.[6] This position was affirmed by leading twentieth-century poskim, who rule that the halachah permits workers to organize in support of their economic interests.[7]
Some authorities go farther. In their view, Jewish law does not merely permit workers to form unions; it positively encourages them to do so. In the words of R. Avraham Yitzchak HaKohein Kook, unionization partakes of the Torah’s insistence upon justice (tzedek), righteousness (yosher), and the betterment of society (tikkun olam). The existenceof nonunion labor lowers the general wage rate and leads to inferior working conditions; therefore, such labor causes financial loss to all workers.[8] R. Ben Zion Ouziel regards unionization as a matter of simple justice and common sense. If workers were forbidden to organize, the individual worker would find himself isolated and alone, left to the mercy of market caprice, forced to hire himself out at starvation wages to the detriment of himself and his family. Halachah empowers workers to unionize, because it is through the power of organization that they can achieve decent wages, secure their economic dignity, and create institutions for cultural advancement and social support.[9] Our own Central Conference of American Rabbis has taken a similar stand. Frequently during our history we have resolved to support the right of labor to organize, to bargain collectively, and to secure fair wages and humane working conditions. As early as 1921, we resolved that “under the present organization of society, labor’s only safeguard against a retrogression to former inhuman standards is the union.”[10] We have endorsed progressive legislation, such as the Wagner National Labor Relations Act in the United States, that guarantees workers the right to form unions.[11] We have supported the unionization of social workers serving Jewish communal agencies.[12] In particular, we have championed the cause of farm workers, urging that they be allowed to organize to secure a decent standard of living and future for their children.[13] Summarizing this long history of support for organized labor, we declared in 1985 that “Trade Unionism traditionally is important to the well-being of America as a whole, and to minorities, including the Jewish community in particular. Primarily concerned with the large working class, it is perforce one of the strongest supports and most secure foundations of our democracy. . . . The CCAR reiterates its traditional support of organized labor and calls upon its members to help establish local conferences of religion and labor, and to remind their congregants of the importance of a strong, effective, and responsible labor movement to the health of American society. The CCAR calls upon the constituent agencies of the Reform movement and upon the Union of American Hebrew Congregations to give consideration to the establishment of programs and projects to further these ends.”[14]
The language of this resolution requires that we as Reform Jews work to put the expressed ideals of our movement into concrete practice. This, too, is but a matter of simple justice and common sense. We who have championed the cause of organized labor for so many decades can hardly exempt our own institutions from the ethical standards we would impose upon others. When our “constituent agencies” hire nonunion labor in preference to union workers, we thereby help to depress the level of wages and deal a setback to the cause for which workers organize. We cannot in good conscience do this. If we believe that unionization aids the cause of workers by raising their standard of living and allowing them a greater say in their conditions of employment—and our resolutions clearly testify to this belief—then our support for unionized labor must begin at home. The synagogue bears an ethical responsibility to hire unionized workers when they are available.
2. FAIR PRICE AND JEWISH LAW
The question we face, however, is not as simple as that. Jewish tradition considers the interests of the consumer as well as those of the worker. This consideration is expressed through the law of onaah (price fraud), which specifies that buyers and sellers are entitled either to compensation or to annul a sale when the amount paid diverges more than a specified amount from the fair market price for the object or service in question.[15] Unionized labor can be said to distort the market by forcing consumers to pay significantly more for labor than they would otherwise do. To be sure, the laws of onaah do not as a matter of technical halachah apply to wages paid to hired workers.[16] Still, the halachah displays a general tendency to supervise the stability of prices in the market place,[17] and it looks askance upon factors that upset this stability to the detriment of consumers. Some authorities, in fact, limit the power of trade groups to set prices and wages, since in the absence of controls these unions might cause unfair economic loss to the community.[18] Consumers, in other words, are entitled to protection against unreasonable economic demands from merchants and from workers. If such protection is not afforded them by the communal government, the consumers may boycott the providers of the goods and services, even when these pertain to religious observance, until the prices come down to appropriate levels.[19] Jewish law, in other words, recognizes that consumers have a valid interest in maintaining a reasonable level of prices for goods and services, including the cost of labor.
To this, we may add the Talmudic principle that “the Torah protects the property of Israel” (haTorah chasah al mamonam shel Yisrael).[20] That is, Jewish law seeks to spare us unnecessary expense in the observance of mitzvot. This principle motivates poskim toward finding leniencies in the law when a more stringent conclusion would involve significant financial loss.[21] It should be noted that this principle is not absolute. It is balanced by the counter-principle “there is no poverty in a place of wealth” (ein aniyut b’mekom ashirut): that is, price should be no object when it comes to the Torah and to determining the proper observance.[22] Various authorities over the centuries have sought to resolve the apparent conflict between these two principles.[23] At any rate, the fact that our tradition will at times take financial loss into account in assessing the precise level of religious duty suggests that we should be careful before demanding that a congregation incur a large expense when alternatives are available.
3. TZEDAK AH: THE DEMANDS OF SOCIAL JUSTICE
How then shall we attempt to reconcile the conflict between these two values, the one favoring unionization, the other protecting the consumer? The answer, it seems to us, rests with the demand of our Torah and our tradition that we do tzedakah. This word, usually associated with “charity,” is better translated according to its Hebrew root as “social justice.” As justice, tzedakah is obligatory conduct, not a voluntary contribution; thus, the court can require an individual to contribute an amount that the court has determined is proper for that person.[24] To put this more bluntly, tzedakah is expensive. It is the nature of tzedakah that it costs money. If we want to work for social justice, we have to be prepared to invest of our time and our substance. And while there are limits to the amount that can be demanded of any person,[25] no Jew—and, we would add, no Jewish institution—can escape the duty of tzedakah on the grounds that it involves financial expense.
With this in mind, we can put our conflicting values into perspective. First, let us consider the concept of onaah. We noted above that a transaction may be canceled when its price exceeds by a specified amount the “fair market value” of the product in question. On this basis, we might conclude that if the cost of hiring organized labor significantly exceeds the cost of engaging nonunion workers, the “union price” is an example of onaah and we have no ethical obligation to pay our workers at that rate. We reject this conclusion. If, as we believe and as we have resolved on numerous occasions, unionization is an indispensable means of securing justice for workers in our society, then our dedication to tzedakah requires that we not set the “fair market value” of labor according to the wage level for nonunion workers. On the contrary: it is the nonunion wage rate that qualifies for the label onaah, for that rate depresses the market, lowering the wages and the standard of living that workers would otherwise achieve. Justice rather demands that we measure the “fair market price” for labor according to the accepted cost for union labor in a particular locale. In would be unjust and injurious to all workers were we to set the standard for “fair wages” according to lower, nonunion scale.
Similarly, the demand to do tzedakah modifies our understanding and application of the principle “the Torah protects the property of Israel.” All that principle means is that financial considerations may be relevant in determining how we are to perform a mitzvah. It does not mean that we are exempt from performing the mitzvah merely because it is expensive.[26] Again, once we determine that nonunion labor frustrates the mitzvah of social justice, it becomes clear that our own value commitments require that our institutions show a decided preference for hiring union labor. We acknowledge the existence of other visions of tzedakah than the one we have sketched here. We are aware that some will argue that nonunion labor in fact serves the cause of “social justice” for all by reducing the overall cost of goods and services and that lower wages mean that more jobs will be available for unemployed workers. We will not contest these issues here. Suffice it to say that a general concept such as “social justice” can be meaningless in the absence of some substantive vision that gives it content. Our particular vision of social justice, the understanding of that term that makes the most sense to us, is the vision put forth by the CCAR and by the prominent poskim whose words we have cited. It involves the empowerment of workers to control their destiny and to achieve goals (higher wages and benefits, better working conditions, a more secure future for workers and their families) that all of us want for ourselves and our children. This is the vision of “social justice” that the Reform Movement has proclaimed for many years. If we believe what we preach, it is our duty to practice the same. In short, although Jewish tradition does recognize the legitimate interests of consumers, it does not teach us that consumers are always entitled to the lowest possible price for goods and services. Rather, it teaches that the interests of all of us are best served when we work together to build a just society. Our synagogues are indeed consumers of goods and services, but in their buying and selling, they ought to remember the higher purposes for which synagogues are established in the first place.
CONCLUSION
In the final analysis, we cannot tell your congregation what it “must” do. It is easy for us, who do not have to raise the three hundred thousand dollars of which you speak, to tell you that you must incur that expense. We recognize, too, that your decision must be based upon local factors of which we are unaware. For example, it is sometimes the case that labor unions act in an unfair (to say nothing of an illegal) manner. Like all institutions, they can be corrupt, rapacious, or discriminatory. There are times, in other words, when cooperation with a labor union may not serve the public interest and the cause of tzedakah. All we can tell you is that, in general, Jewish tradition and our Reform Jewish interpretation of that tradition perceive unionization as an indispensable tool in the long struggle for social justice and the rights of workers. For that reason, your congregation should make every effort to hire union labor for your construction project.
NOTES
1. BT Bava Batra 8b and Rashi ad loc.
2. Yad, M’chirah 14:9; SA, CM 231:27. On the subject of takanot hakahal, see Reform Responsa for the Twenty-first Century, no. 5758.1, vol. 1, pp. 311–18, at notes 4 –7.
3. BT Bava Batra 9a.
4. Tosefta, Bava M’tzia 11:12.
5. R. Sh’lomo b. Adret, Resp. Rashba 4:185 (sh’kol chaburah sh’hem benei inyan echad harei hem ke-ir bifnei atzmah . . .). R. Asher b. Yechiel, Hil. HaRosh, Bava Batra 1:33, writes that “craftsmen” (baalei omanut) are empowered to set the regulations governing their trade, as does R. Yitzchak b. Sheshet, Resp. Rivash, no. 399. The law is codified in SA, CM 231:28.
6. One difference between laws adopted by the citizenry as a whole and laws adopted by professional groups is that the latter are considered binding upon the group’s members only if they meet with the approval of an adam chashuv, a “distinguished public figure” (BT Bava Batra 9a). The definition of this term, which in that Talmudic passage is applied to the Amora Rava, is the subject of some controversy. Some require that this person be a Torah scholar who serves as a leader in the local government (parnas al hatzibur; R. Yosef ibn Migash and R. Yonatan HaKohein of Lunel, cited in Shitah Mekubetzet, Bava Batra 9a; R. Menachem HaMeiri, Beit HaB’chirah, Bava Batra 8b; Magid Mishneh, Hil. M’chirah 14:11; SA, CM 231:28). Others do not require that this communal leader be a Torah scholar (Resp. Rashba 4:185). On the other hand, where there is no adam chashuv in place, the professional group may adopt whatever rules it sees fit and enforce them on its members. And at least one authority holds that the consent of the adam chashuv is required only to approve measures taken by the association that involve fines and penalties against its members; all other rules, including the setting of wages and salaries, may be adopted without such approval (R. Moshe Feinstein, Resp. Ig’rot Moshe, CM 1:58). In our own legal environment, of course, the secular authorities, who regulate union-management relations through legislation, fulfill this function.
7. Among these poskim are R. Avraham Yitzchak HaKohein Kook, N’tivah, 11 Nisan 1933; R. Ben Zion Ouziel, Resp. Piskei Ouziel B’she’elot Hazeman, no. 46 (“It is beyond all dispute that our Sages recognize the rules adopted by unions of craftsmen or laborers and by professional organizations”), and R. Moshe Feinstein, Resp. Ig’rot Moshe, CM 1:58 (“There is no basis in halachah for outlawing the formation of labor unions”). R. Eliezer Y’hudah Waldenberg, Resp. Tzitz Eliezer 2:23, permits the formation and functioning of unions on the basis of local custom (minhag ham’dinah): laws governing labor-management relations are matters of communal authority, and the community is entitled through legislation to recognize labor unionization. See also R. Katriel P. Tekhursh, Keter Efraim, no. 19, and R. Chaim David Halevy, Aseh L’cha Rav, 2:64.
8. See note 7.
9. See note 7.
10. CCAR Yearbook (CCARY) 31 (1921): 44.
11. CCARY 45 (1935): 79; CCARY 50 (1940): 104, 105.
12. CCARY 46 (1936): 78.
13. CCARY 83 (1973): 109; CCARY 86 (1976): 68; CCARY 89 (1979): 102.
14. CCARY 95 (1985): 239– 40.
15. See M. Bava M’tzia 4:3–7; Yad, M’chirah 12; and SA, CM 427. The amount of divergence is set at one-sixth of the accepted market price for the object or service. If the price charged exceeds the market price by one-sixth, the buyer is entitled to a refund of the overcharge; similarly, if the price falls below the market price by one-sixth, the seller is entitled to compensation in that amount. Should the price charged diverge by more than one-sixth of the market price, the sale may be invalidated entirely.
16. SA, CM 227:33 (and see 227:29), derived from M. Bava M’tzia 4:9.
17. BT Bava Batra 89a; Yad, G’neivah 8:20 and M’chirah 14:1; SA, CM 231:2.
18. R. Menachem HaMeiri, Beit HaB’chirah, Bava Batra 9a; R. Yom Tov ben Ishbili, Chidushei HaRitva, Bava Batra 9a; R. Nissim Gerondi, Chidushei HaRan, Bava Batra
9a. The “controls” spoken of here refer to the concept of adam chashuv (see note 6). The “distinguished public figure” functions as an arbiter between the conflicting economic demands of labor and management or of merchants and consumers. A number of authorities suggest that all labor disputes must be submitted to the approval of the adam chashuv, in the form of a rabbinical beit din or a specially appointed court of arbitration, provided that such an agency exists within the community. These include R. Ben Zion Ouziel (see note 7), R. Chaim David Halevy (see note 7); R. Shaul Yisraeli, Amudim, Nisan 5726 (1966), 223; and R. Sh’lomo Daichovsky, HaTtzofeh, 9 Tevet 5733 (1973), 3.
19. See M. K’ritot 1:7. R. Menachem Mendel Krochmal (seventeenth century; Resp. Tzemach Tzedek, no. 28) cites that mishnah in permitting a consumer boycott against local fishmongers.
20. BT Chulin 49b and parallels. Rashi ad loc., s.v. hatorah chasah, links the principle to the Sifra on Lev. 14:36. See also M. N’gaim 12:5.
21. For example, R. David Zvi Hoffmann (Resp. Melamed Leho` il 1:91) permits a Jew who owns stock in a restaurant to retain ownership of his shares, even though the restaurant remains open during Pesach and the Jewish stockholder therefore will profit from the sale of chameitz. He seeks a lenient answer, in part, “because the Torah protects the property of Israel.”
22. See BT M’nachot 89a and parallels.
23. The most comprehensive summary of these discussions is R. Chaim Chizkiah Medini’s nineteenth-century S’dei Chemed, 1:128, p. 44. Among other passages, he cites R. Moshe Sh’lomo ibn Habib’s seventeenth-century work Sh’mot BaAretz (section yom t’ruah, on BT Rosh HaShanah 27a). There, we read that the halachah does not determine in advance the conditions under which either principle must apply. That decision is rather left to the discretion of the sages in every generation.
24. BT K’tubot 49a; Yad, Matanot Aniyim 7:10; SA, YD 248:1.
25. See SA, YD 249:1–2 for the ideal and practical levels of giving.
26. The responsum cited in note 21 is not an argument against this point. While R. Hoffmann explained the search for a lenient answer on the grounds that haTorah chasah al mamonam shel Yisrael, that principle did not in and of itself justify the answer. The particular halachic question there was whether a stockholder in a corporation can be said to “own” its chameitz and therefore be found in violation of the Torah during Pesach. Hoffmann argues that the owning of stock in a company does not constitute “ownership” in that sense. If, on the other hand, he had concluded that stock shares do constitute “ownership,” he would have required that the stockholders sell those shares despite the financial loss incurred.