Friday, August 22, 2008

Hekhsher Tzedek: Is It A Good Idea In Practice?

R. Dr. Aaron Levine writes in this week's The Jewish Press (link):

The kashrut certification industry is being galvanized by a provocative, innovative initiative called Hekhsher Tzedek (i.e., justice certification). The brainchild of Rabbi Morris Allen of St. Paul, Minnesota, Hekhsher Tzedek is a supplement to current kashrut certification.

Kashrut certification today declares that the food establishment adheres to the kashrut standards and procedures set by the certifying agency. Hekhsher Tzedek adds an ethical dimension to the certification by attesting that the food establishment treats its work force decently and fairly.

Click here to read moreTo confer its imprimatur, the Hekhsher Tzedek agency would evaluate the company's safety standards and whether the company tries to prevent its workers from organizing into a union. It would also make a judgment as to whether the company pays its workers a livable wage and provides them with adequate health benefits. Finally, Hekhsher Tzedek is interested in animal welfare, corporate transparency and environmental impact.

Hekhsher Tzedek is a joint initiative of the United Synagogue for Conservative Judaism and the movement's Rabbinical Assembly. Rabbi Allen and the sponsoring organizations deserve praise for making kashrut supervision a setting for integrating our duties to our fellow man with our duties to God. But let's recognize that the devil is often in the details and reflect on what Hekhsher Tzedek would have to look like in practice to meet the Torah's standards of tzedek.

Proponents of Hekhsher Tzedek tell us they are trying not to replace the current kosher certification but only to supplement it. To meet the Torah's tzedek concept, however, Hekhsher Tzedek would have to be set up entirely differently from kashrut certification. Why? Because kashrut certification is essentially an autocratic procedure; to earn certification, a company must agree to adhere strictly to the requirements and procedures established by the kashrut certifier, and noncompliance will result in revocation of the certification.

The certification process allows little room for negotiation, and no appeal. In sharp contrast, tzedek is a judgment in human relations and therefore cannot be reached without a judicial process. Three sides will always be involved: labor, management, and the third parties affected by their actions.

Let me explain the practical import of dubbing Hekhsher Tzedek a judicial process. In America, we operate under the Constitution and enjoy freedom of speech. The law punishes slander and libel, but with respect to commercial speech there are no legal sanctions against disseminating accurate information that is hurtful. As Jews, however, we have the additional prohibition against speaking lashon hora, true but harmful speech. But when the motive of the speaker is to prevent an undeserved harm from occurring, the prohibition of lashon hora is suspended, provided certain conditions are met.

One of these conditions is that the target of the lashon hora should not suffer more than he or she deserves by dint of Torah law. Today, the media routinely report on complaints workers file against their employers, as in class action suits in civil court and filings with the National Labor Relations Board relating to "union busting" activity. Now, if the "reasonable man" or general public reacts to such complaints with the attitude of innocent until proven guilty, the media will not be guilty of causing undeserved loss of business to the accused company by reporting those complaints.

It may, however, be an entirely different matter if a Hekhsher Tzedek certification system is in place. Let's not lose sight of the fact that Hekhsher Tzedek is clearly an affirmative testimony of ethical propriety. What should the tzedek certifier do if there are outstanding, serious complaints against a company that have yet to be adjudicated? Because Hekhsher Tzedek is an affirmative testimonial of propriety, the certifier has no choice but to suspend its imprimatur from a company that faces such unresolved complaints.

But what happens in the interim when the symbol of the tzedek certifier is missing from the company's packaging? Undoubtedly, some consumers will not investigate why the symbol is missing and will switch their patronage. For some, the knowledge that the company faces only an accusation, but not a guilty verdict, will make no difference and lead to the same loss of patronage for the embattled company. Ironically, while the competing suppliers these consumers turn to may have a reliable kosher certification, they may never have been evaluated for tzedek certification.

Another ramification of the affirmative testimony nature of Hekhsher Tzedek relates to leverage: Suppose a regional NLRB rules against a labor union complaint. At this juncture, the company's Hekhsher Tzedek certification should be reinstated. But the union can block this reinstatement by appealing the ruling to the National Board. If the union goes this route, the company's Hekhsher Tzedek certification will remain suspended, at the very least, until the lengthy and costly appeal process is over. Hekhsher Tzedek hence empowers the union with leverage it never had before.

In short, one can conceive of many scenarios where the temporary suspension of the Hekhsher Tzedek imprimatur would result in unwarranted bias and hence in undeserved harm for a company.

In pursuing its investigative probes, Hekhsher Tzedek will be hampered because, unlike government, it will have neither trained investigators nor subpoena power. The issue therefore becomes whether its judicial decisions will command confidence and trust in the marketplace.

By design, Hekhsher Tzedek is overwhelmingly one-sided. It considers only how employers treat their workers, not how workers treat their employers. Making judgments about tzedek in the workplace, however, requires consideration of the reciprocal relationship between employer and employee.

To illustrate, suppose workers lodge a complaint against their employer for not paying them for the time they spend putting on their protective gear at the beginning of a shift and taking off their gear at the end of it. Suppose, for argument's sake, the complaint is valid. But suppose also that the workers report to work late and idle significantly on the employer's time and the company does not dock their pay. What is the tzedek certifier to make of this?

Yes, the company should be denied tzedek certification. But why should the workers be immune from reproof? Accordingly, perhaps the certifier should say, "We found no tzedek in labor-management relations here. Instead, we found plenty of abuse, all around."

Relatedly, Hekhsher Tzedek is very much concerned that employers not interfere with worker efforts to unionize. But suppose union organizers make use of strong-arm techniques to coerce workers to vote to unionize. Should not Tzedek certification be denied based on this factor?

Another problem is that Hekhsher Tzedek certification does not cover a firm's relationship to its customers and suppliers. Conferring Tzedek certification based on the employer's conduct only vis-a vis his workers could very well have the effect on the margin of shifting the employer's moral energy toward labor relations while ignoring the other stakeholders he deals with in his business.

Suppose that in the process of evaluating a company, the Hekhsher Tzedek certifier hears a complaint that the firm is in serious arrears with it suppliers or is cheating its customers. Should those complaints be ignored because they are not part of the agenda of Hekhsher Tzedek?

Finally, let's turn to cost. Consider that the plan is for companies to pay a fee for the certification. In addition, the "livable wage" provision aspires for increases in amenities for workers; amenities that neither secular law nor halacha mandates for individual employers. (In a forthcoming issue of Tradition, I address the "living wage" concept from the standpoint of Jewish labor law and charity law.)

Likewise, reducing carbon emissions entails incremental costs, as for example, when a company eliminates Styrofoam cups, initiates a recycling program, or replaces incandescent lighting with fluorescent lighting. For companies operating on small profit margins, adoption of these measures on top of the cost of securing the kashrut certification may prove prohibitive.

Large companies, on the other hand, may find Hekhsher Tzedek a good investment by which to gain a competitive advantage. Hekhsher Tzedek may thus become an unwitting vehicle in driving out small firms, which in the long run will equip surviving firms with the necessary leverage to raise prices.

Hekhsher Tzedek is a constructive idea - but without proper vetting before implementation, it stands to generate many unintended negative side effects.

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