The Challenge of Wealth
By Dr. Meir Tamari
RESPONSA- DEVARIM, Week of 22- 27 Tammuz, 5763.
UNIONS AND THE LEGALITY OF THE STRIKE.
Organizations of workers and artisans into professional associations or
unions inter alia restrict competition and are meant to be monopolies. We
therefore have to consider them in the same way as other restrictions on
competition and to consider whether they are in the interests of morality
and communal welfare.
The halakhic basis for such organizations is the same as that for trade
associations, professional bodies and civic groups. "Every association or
organization for whatever purpose is to be considered as a city (the
members of which have the right to regulate weights, prices and the wages
of workers. They have the right to punish those who do not carry out their
regulations, even if the other members of the community are not party to
their decisions]. Even if only members of one occupation, like the
merchants, butchers or sailors, make regulations and articles of
association, their decisions are binding" (Baba Bathra, 8b). However, all
such regulations must be either with the consent of the majority or by
consensus. In addition, such regulations require the consent of an
independent personality [ie. compulsory arbitration], either a Torah
scholar or a public figure or if possible one who combines them, Adam
Chashuv (Choshen Mishpat, section 231; the Rama limits this to cases where
losses occur as a result of the regulations). It goes without saying that
these regulations cannot be illegal, contrary to custom that has the power
of law or the decisions on the Jewish town council [7 tovei ha'ir] and may
not involve disregarding any contractual obligations. All of these
restrictions apply also with regard to trade unions.
Therefore, it seems that, generally speaking, a strike by employees would
not be permitted according to halakha. They could not withhold their labor
from the employer since that would be contrary to their contract with him.
They could also not prevent him from taking other workers; "a householder
has the right to take another teacher for his children if they are better
in any way (or cheaper)". The most important weapon of trade unions, namely
the right to prevent others from taking their place during a strike or
after it, is also taken from them. This may be either because they did not
get the approval of the
bet din, the [Jewish] town authorities or the impartial arbitrator , adam
chashuv. They could in certain circumstances claim that the strikebreakers
were endangering their livelihood, which we know is often grounds for not
In our own days, Rabbi Moshe Feinstein mantains that on the grounds of
competition that endangered their livelihood, workers, like all other
bodies, could unite and frame regulations and articles of organization, to
prevent it. The public disapproval of strikebreaking [where it exisits] is
an additional factor preventing other employees from working during a
strike. In any case, he points out that, members of the unions, under no
circumstances, could use physical or other forms of violence, to harm the
property or persons of their employers or strike breakers. (Iggrot Moshe,
Choshen Mishpat, section 59).
However, a strike would be permissible if economic conditions change so as
to make the original contract or local custom impractical or irrelevant.
"In our town there are 6 shochatim [ritual slaughterers] employed by the
community......they are paid a fixed wage for every head of
cattle.........but there is no charge for chickens and ducks and geese. Ths
has been the custom for many generations. Now the community has grown a lot
and many of the newcomers have come from Europe [Franks in the Middle
Eastern terminology] whose diet is predominately poultry. But in addition
there has been a drought, so that the number of cattle has decreased and
there has been a greater demand for poultry. So the shochtim are demanding
payment for every fowl slaughtered and have refused to slaughter poultry,
unless their demands are met. The council has rejected their demands
because it was contrary to the custom and we have decided to bring in other
shochtim if they will charge for the poultry”.
"The law that decisions of associations need the agreement of the important
personality applies to cases where the workers were receiving a fixed or
pre-determined wage and now wish to be paid more. In such a case that
requires an Adam Chashuv’s consent. However, in your case where they are
asking to be paid for the poultry, whereas before they slaughtered free of
charge, it seems that they do not require any such consent. This is
especially true where the rabbis agree that the truth and justice is with
them. So they can make a new regulation enforcing payment for the poultry,
especially since the demand for meat has declined, because of the large
number of newcomers with different needs” (Ohel Yosef, Hilkhot Sechirot,
section 6; Rabbi Joseph Molcho, 18th century Jerusalem).
With regard to modern strikes, especially those involving the public
sector, utilities or essential services, there remains the problem of
damages to third parties and to society in general. Not only are these
strikes between employees and employers, but they also affect many other
people who are actually not party to the specific issue being of contented.
This is part of the problem of the monopoly of trade and professional
associations but also of trade unions. On the one hand, society has a
benefit from them in that they provide supervision of the quality of the
services offered by the members, through maintaining the level of their
professional and academic proficiency, as well as by supervising their
treatment of the public. On the other hand, by virtue of their monopoly
they either limit economic opportunities and growth by restricting
membership or by controlling prices and supply of the goods and services,
or both of these. So the institution of the arbitrator Adam Chashuv-
serving as a public watchdog, is an important defense mechanism offered by
the halakhah. Public disapproval of the behavior of the trade union or
professional association is another. There is evidence of such public
disapproval from Talmudic days.
"These shall be remembered for rebuke: the [priestly] house of Garmu who
refused to teach others how the Shewbread for the Temple service was baked;
the [priestly] house of Astinus who refused to teach how the incense was
made” (Mishnah, Yoma, chapter 3, mishnah 11).. We are told that the Sages,
attempting to continue the Temple service without the house of Garmu,
brought experts from Alexandria (from the Temple at Leonidies, built after
the destruction of the first Temple in Jerusalem). The foreign bakers,
however, were not able to perform all the various tasks connected with the
Shewbread to the satisfaction of the rabbis. So the house of Garmu was
reinstated. However, when the Sages sent for them to return to work, they
refused to do so until their wages were doubled. A similar increase in
wages was demanded and given to the house of Antinus, the makers of
incense. The rabbis cursed both of these priestly families for holding the
public ransom, since it was impossible to maintain the essential services
of the Temple without them.
On being asked by the rabbis of the Talmud, to explain their miserly
behavior in refusing to teach others their skill, that in effect maintained
their economic monopoly, the answer was non-economic at all. "We have it as
a tradition that this house (the Temple) will be destroyed. We fear,
therefore, that perhaps some unworthy person will learn and will use his
knowledge for personal purposes." The sons of the house of Garmu never ate
refined bread, in order that people should not say that they were using the
Shewbread for their own personal benefit.
Similarly, the brides and wives of the house of Antinus never used perfume,
so that they should not be suspected of using the incense for their
personal benefit. This aversion to the exploitation of their monopoly
status of both these houses proved that the ideological argument and the
strike for maintaining that status was not an economic or private one. So
the rabbis revised their rebuke and praised them.
It was a similar public disapproval of trade union exploitation of monopoly
status that enabled Margaret Thatcher to break the stranglehold that the
unions had acquired on the British economy.
Copyright © 2002 by Rabbi Meir Tamari and Project Genesis, Inc.
Dr. Tamari is a renowned economist, Jewish scholar, and founder of the Center For Business Ethics (www.besr.org) in Jerusalem.