NYP no. 5761.4

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.