The author’s Facebook post has been reprinted here with permission. 
[pullquote align=right] The overwhelming weight of halakhic discourse…unequivocally asserts that Jewish employers should hire union workers
[/pullquote]I’ve been following with great interest and concern the developing labor situation at JTS, but have held back on commenting publicly until I got a chance to talk to the relevant parties, and to understand the situation better. Earlier this week, I met with Marc Gary (Executive Vice Chancellor and COO) and with Dr. Arnie Eisen (Chancellor). I appreciate their taking time to meet, and to respond to a number of questions. I appreciate their openness and leadership of the seminary. Now that I have had a chance to speak with them and others, I want to share some of my thoughts, concerns, and remaining questions.
I’ll start by saying that I care very deeply about JTS and its future. I’m proud to be an alumna of JTS rabbinical school, and grateful for all that I learned from my teachers and peers there. I’m constantly blown away by the incredible JTS students I meet through my work at T’ruah, and am glad to call many of the faculty and staff close friends and colleagues. And I’m thrilled, of course, that the teshuva I wrote and that the CJLS (Law Committee) passed in 2008 continues to inform questions of worker-employer relations.
I believe there is still an opportunity for JTS to do the right thing in its current construction project. But we are not there yet.

1. What my teshuvah says about unions

I want to be extremely clear that my teshuva (as well as the overwhelming weight of halakhic discourse that precedes it, going back to the Talmud) unequivocally asserts that Jewish employers should hire union workers when possible. The reason that halakhic discourse is virtually unanimous on this point is that unions (and some other forms of worker organizations) are the only proven way to guarantee fair wages and workplace protections, and–fundamentally–the right to a voice at work. In the words of R. Ben-Tzion Meir Chai Uzziel (1880-1952), former Sephardic Chief Rabbi of Israel:

וכך הדין נותן שלא להשאיר את הפועל יחידי בודד ויחיד. עד שיצטרך להשכיר את עצמו בעד שכר פעוט להשביע רעבונו עם משפחתו בלחם צר ומים לחץ ובדירה אפלה ושפלה, וכדי להגן על עצמו נתן לו המשפט זכות חקית להתארגן, ולתקן תקנות מועילות לחברתו . . . כל הדברים האלה שאינם יכולים להתמלא אלא בארגון של אומנים או פועלים. ולכן נתנה תורת ישראל זכות מלאה וחקית לארגון זה אעפ”י שיכולה להיות ממנו הפסד לבעלי הבתים.

The law allows [for the existence of unions] in order that the individual worker not be left on his own, to the point that he hires himself out for a low wage in order to satisfy his hunger and that of his family with a bit of bread and water and with a dark and dingy home; in order that the worker may protect himself, the law gives him the legal right to organize, and to establish stipulations that benefit the members of his profession. . . all of these things can only be fulfilled through a workers’ union. Therefore, the Torah gave the Jewish people the full and legal right to organize these, even though it is possible that [such unions] will result in a financial loss for the employers.
In a letter sent to the JTS community today, Marc Gary wrote “We have consulted with our halakhic experts, Rabbi Danny Nevins and Rabbi David Hoffman, both of whom are members of the Law Committee and were on the committee when the responsum was approved. They have assured us that our actions are fully consistent with the guidance of the responsum.”
[pullquote align=left] This formulation does not leave room for JTS to go first to non-union labor without making a good faith effort to hire union firms.
[/pullquote]Rabbis Nevins and Hoffman are both friends and close colleagues whose work I deeply respect, and both were extremely supportive of passing the teshuvah. However, the teshuvah requires hiring union labor “whenever possible.” This formulation does not leave room for JTS to go first to non-union labor without making a good faith effort to hire union firms.
When I reached out to Rabbi Nevins and Hoffman, I learned that Mr. Gary had asked for their opinion only after my meeting with him. But the time for halakhic deliberation is before a decision is made, not months afterwards. I also learned that the decision was based on the teshuva’s specification that it applies to low wage workers and not to teachers and doctors. I made this distinction because there is a separate and more complicated body of halakhic literature addressing strikes by doctors and teachers (though their right to unionize is not contested) and the teshuva does not take on the separate issue of these strikes. While it is true that construction workers are generally not low wage, it is because of unions that this is true (more on this later). Furthermore, the very first halakhic discussion of proto-unions/guilds, in the Talmud, asserts the right of members of skilled trades, such as butchers and camel drivers, to organize.

2. “Open shop/merit shop”

One of JTS’s main arguments is that most construction work in NYC is now “open shop” (a euphemism for “non-union”) or “merit shop” (a more offensive euphemism that suggests that union companies don’t have merit). This is true for residential construction, though currently not for commercial/institutional development (this project includes both). Even so, the move away from union labor is not a neutral development, but rather the product of years of attacks on labor unions by corporations and government policies. This trend weakens protections for workers overall and has a negative impact on wages, safety, and the ability of workers to represent themselves. Moreover, since when is “everyone else is doing it” a moral or halakhic argument? Those of us committed to living halakhic and moral lives should aim to do what is right, not what we can get away with.
[pullquote align=right] That gives JTS time to solicit bids from union companies, and to negotiate with these companies as necessary.
[/pullquote]If it’s true, as Mr. Gary said in his meeting with me, and in his public letter today, that because of the complexity of the work and the current construction boom in NYC, it would not be possible to find union subcontractors for all of the work, let’s test it out. One major step that JTS could take would be to commit to make a good faith effort to secure a union subcontractor for each piece of the work, and move to non-union only if there were no bids. That would be fully in line with the psak of teshuvah.
I was glad to learn that the major pieces of the project–demolition and excavation–were/are being done by union companies, and that most of the subcontractors for the construction have not been hired and won’t come on the job until at least January. That gives JTS time to solicit bids from union companies, and to negotiate with these companies as necessary.

3. Safety

I do believe that JTS is trying to guarantee the safety of the workers on site. Obviously, this is the absolute most important consideration–protecting every single human creation in the divine image. Construction work has long been some of the most dangerous work:

מפני מה עלה זה בכבש ונתלה באילן ומסר את עצמו למיתה – לא על שכרו
Why does he climb a ladder or hang from a tree, and risk his life if not for his wages? –Bava Metzia 112a

I was glad to hear that JTS decided to hire an independent safety manager, even though they could have applied for a waiver to avoid doing so. I’ve asked for confirmation that workers will be able to report any issues anonymously to this person. (I have not yet received a response). One of the major reasons unions are so crucial is that they allow workers a collective voice–a unionized worker who sees an unsafe situation can speak to the union rep and the union can address the issue with the company; a non-unionized worker can complain to the boss, and possibly risk being told “if you don’t like it, you can leave.”
As for the safety record of Gilbane, the contractor for this site, there are a few different points of information floating around. JTS has offered evidence of Gilbane’s excellent safety record, and one of the unions involved has offered evidence of a terrible record. I don’t know how these two sets of facts do or don’t relate to each other, and would be happy for some enterprising reader (who has made it this far) to take this up as a research project. I will note, though, that there were 31 construction deaths in New York City in 2016, and 29 of them were on non-union projects. Unions ensure that workers have proper training, and negotiate contracts that include appropriate safety protections.

4. Living/prevailing wage

Mr. Gary has asserted that all workers on the project will receive a living wage. I have tried (but have not yet succeeded) to learn whether this means a living wage (currently $15/hr with no benefits in NYC) or prevailing rate. The latter, determined by the State Comptroller, can range from $20+ to $50+ plus benefits depending on the job, skill level, and years of experience. Paying $15 for a highly skilled position would not be fair pay at all, even if it’s technically the official living wage. Mr. Gary and a few other seminary representatives have made comments about construction workers earning $70,000+/year. When that’s true, it’s a good thing! Unions are the reason that jobs like construction allow workers to support their families. Without unions, we end up in a race to the bottom in which the people who build our seminaries, schools, and homes may not be able to take care of their families in dignity. (also note that there are high & low seasons for construction, so you can’t assume that the hourly rate x40 x52 = an annual salary).

Where to go from here

As I said above, I believe that there is still time to do the right thing, especially as most subcontractors have not yet been hired. The ideal would be to transfer the project to a union contractor, who would ensure worker protections as above. I strongly encourage JTS to take this step, as the owners of One Wall Street just did this week when they replaced Gilbane with a union contractor.
Barring this ideal solution, some other specific steps JTS might take include:

1. Request that the contractor (Gilbane) enter into a Project Labor Agreement, which allows unions to negotiate the terms of the project with the contractor. These terms apply to both union and non-union workers for the duration of the project, and the union has the right to represent both. This gives workers a voice, guarantees fair terms, and allows for an expanded pool of potential subcontractors. Or: Commit to paying the prevailing rate to all workers.
2. Commit to soliciting union bids for all subcontracted projects, and moving only to non-union bids when there are no union companies able/available, or if there are specific and serious concerns about a particular union company.
3. Ensure that workers have a means of making anonymous complaints, without retribution, if they see safety issues on site.
4. Require any non-union subcontractors to commit to neutrality if workers begin to organize. That includes not requiring workers to attend meetings aimed at dissuading them from organizing, or punishing workers who organize. This neutrality is actually required by law, but since companies violate this law in 90%+ of cases in which workers organize, it bears repeating.

I want to be clear that I am not in the position of negotiating any contracts, nor do I speak for the union or anyone else. These are simply my thoughts about the current situation and how we might move forward in a positive way.
And finally, thank you to all of the students, alumni, faculty, and friends of JTS who are working hard to help the institution we love to do the right thing.
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