You have been requested to be the Response panelist for the following question:
Labor union strikes can paralyze a local economy. What is 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.
