You have been requested to be the Response panelist for the following question: Labor union strikes can paralyze a local economy. Whatis the Jewish position on striking and work stoppages?
Halakhah shares with American law a deep aversion to “specific performance”, or the idea that a person can be forced to do work s/he does not wish to. In that sense Judaism presumptively legitimates work stoppages.
The Talmud does make clear that workers can be held liable for the damages caused by their breach of contract. It does not, however, make provision for preventive injunctions where the workers cannot reasonably be expected to be able to pay those damages.
All this relates to individual workers’ decisions. Union strikes present a set of additional issues.
1) Is a union vote to strike binding on individual workers?
2) May employers fire striking workers, and/or hire permanent replacements?
3) Are nonunion workers obligated to honor a picket line?
This is an area of Halakhah that is still developing, but here is my preferred analysis, drawn largely from the response of Rav Mosheh Feinstein but influenced by the writings of Rav Ben Zion Uziel as well. I note also that their analyses were developed largely with reference to intraJewish issues, whereas I am applying them to pluralistic or fully Gentile settings
Judaism is fundamentally committed to democracy, which means not only that people choose their own leaders, but that majority decisions are binding on minorities when the vote was fair and the group is defined as a political unit. Members of a union are such a political unit, and as a result union members are bound by a strike vote.
However, nonunion members are not members of the same unit. They can only be bound by a union vote if the union controls a majority of all the workers in a profession or industry, current and potential. In principal, then, there should be no objection to scabbing. Furthermore, there is no basis for prohibiting employers from hiring replacements. So striking is legal, but in the existing condition of Halakhah, and in the absence of any external forces, would probably be ineffective.
This conclusion would preserve the form of Halakhah, but not its underlying values, which are well articulated by Rav Uziel. The halakhah as we have it developed in a preindustrial world, on the general assumption that negotiations took place between individual workers and individual employers, and accordingly emphasizes freedom of contract as the way to protect laborers. It does not address an environment in which one employer, or a small group of employers, control all the available work opportunities. In those circumstances, it is necessary to find Halakhic mechanisms for allowing workers to cartelize as well.
Rabbi Feinstein suggests several such mechanisms – a number of tenure-like principles already found in Halakhah, and an incorporation of moral principle on the other. Each of these can be questioned, but collectively, they reflect a clear conviction that halakhah must enable an effective right to strike at least in an industrial capitalist setting.
There are good public policy reasons for being leery of this right. In particular, there are circumstances in which the right to strike can give a select group of workers blackmail power over a community, as for example if a professional fire department, or all the doctors in an area, decide to strike. Halakhah provides two mechanisms for controlling this.
The first is a requirement that the decision to strike be approved by a representative of the broader public, either a recognized scholar or an elected body. This obviously requires that those representatives not be controlled by the employers.
The second, developed by Rabbi Feinstein, is premised on the formal obligation to perform mitzvoth without compensation – fundamentally, the performance of a mitzvah is a privilege and obligation, not a job. Salaries, benefits, and even working conditions for mitzvah positions, such as teaching Torah, can therefore be demanded only at the minimal level necessary to perform the job well, and if one person cannot perform it at the current pay level, they have no power to prevent someone else from doing it at that price. In other words, such strikes can only be engaged in for the public good, not for the private good of the workers. It seems to me that many if not most jobs essential for the public welfare, such as police, fire, medical, etc, can be defined as mitzvah-jobs for the purpose of this regulation.
This is plainly an outline rather than a comprehensive scheme, and its effects and effectiveness would be heavily dependent on the development of proper regulations and intelligent implementation. But I hope it sheds useful light on how Jewish values might and/or should play out in this area.
In the interest of full disclosure, I am by no means an expert in Jewish labor law. Fortunately, I have a very important book on my shelf, written by my colleague Rabbi Jill Jacobs and entitled There Shall be No Needy, that is a practical and useful resource for exploring our societal obligations to one another through the lens of our legal texts and traditions.
Before we can proceed to the specific question of striking and work stoppages, it is important to understand the overarching Jewish legal priority on giving everyone a fair chance at living a decent life.Rabbi Jacobs explains how this would translate to contemporary times:
In accordance with the assumptions of Ramban and Rambam, we can say that the wages set by a community should be sufficient for a person to support himself or herself, and on a single job with a forty-hour workweek. In American political discourse, this wage is commonly referred to as a "living wage...." The living wage has variously been determined according to estimates of the real cost of living in an area, 80 percent of the median income of the area, or approximately three times the cost of a two-bedroom apartment at fair market rent (Jacobs, There Shall Be No Needy, 121).
In other words, based on the thinking of two major medieval authorities, Rabbi Jacobs reminds us of the basic Jewish principle that everyone is entitled to receive a living wage for their labor. Jacobs further points out that Jewish scholars overwhelmingly permit workers to establish labor unions and there is ample precedent for workers to strike in order to enforce working standards, raise wages, or ease working conditions (Jacobs, There Shall Be No Needy, 125-127).
At the same time, it is also clear that Jewish law and tradition is concerned about everyone having a baseline of economic security. Therefore, my understanding is that, if the economic paralysis was temporary and could force a just improvement to working conditions of the laborers, a strike and work stoppage would be permitted and encouraged. If, however, the paralysis began to cause long-term economic problems for the larger society, those seeking better working conditions would have to carefully consider the circumstances and work to ensure that their actions were not putting others in a state of economic crisis.
First, we should note that Jewish law solidly supports the right of workers to form unions or other trade associations in order to protect their economic interests. The Talmud (Bava Batra 8b-9a) affirms that the members of a community (b’neyha`ir) are empowered to adopt regulations concerning wages, prices, business competition, and the like. The passage also makes clear that the term “members of a community” applies to members of a particular trade group.The medieval commentators and halakhic authorities cite these statements as authoritative. And contemporary halakhic scholars have explicitly extended these provisions to labor unions, that is, to associations of workers as well as artisans and merchants. Both Rabbi Avraham Yitzchak Hakohen Kook and Rabbi BenzionOuziel, who served as chief rabbis of EretzYisrael during the early and mid-20th century, saw labor unionization as a matter of simple justice for workers, an indispensable tool in enabling them to achieve decent wages, working conditions, and economic security. My own Reform movement, including the Central Conference of American Rabbis, has gone on record numerous times over the years in support of the right of workers to organize.
For a detailed discussion of these and other sources, see the latest collection of Reform responsa, Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), vol. 2, pp. 345-354).
All of this implies that Jewish tradition endorses the right of workers to employ sanctions in pursuit of their legitimate economic goals. These sanctions include the right to strike, particularly the conclusion of a contract period (although some sources would seem to permit strikes even during the period of a contract, particularly when inflation and other worsening economic conditions render the contract’s specific terms meaningless).
It should be clear, therefore, that Jewish law does not place exclusive blame for the adverse economic effects of a strike upon the shoulders of unions. When workers go on strike, they are utilizing a power that is guaranteed to them by our sources. On the other hand, the tradition also acknowledges that these effects can be “paralyzing” at times. Many of the authorities over the centuries have urged that labor disputes be brought before a beit din – we might call this a board of arbitration – to be adjudicated fairly, in the interests of all. If such impartial and trusted tribunals existed in our society, we could conceivably bring a just and speedy end to work stoppages. In the absence of such institutions, though, there is no question that Jewish tradition permits workers – no less than it permits employers – the power to organize in the protection of their economic interests.
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